Wills - Sena Ebook

Transcribers:
Marc Roby de Chavez (MARX) Marc Roby de Chavez (MARX) Marc Roby de Chavez (MARX) Marc Roby de Chavez (MARX)

Mon Cristhoper Pasia (MON)
Ruth Anne Datay (RUTH)
Socrates Benjie Marbi (SOC)
Apri !erero (APR"#)

Professor: Atty$ Cara Santa%aria&Se'a
WILLS AND SUCCESSION REVIEWER BY
MARX, MON, SOC, APRIL and RUTH

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WILLS1
Article 774. Succession is a mode of acquisition by virtue of which the
property, rights and obligations to the extent of the value of the inheritance,
of a person are transmitted through his death to another or others either by
his will or by operation of law.

What is succession?
Succession is a mode of acquisition by virtue of
which the property, rights and obligations to the
extent of the value of the inheritance, of a person
are transmitted through his death to another or
others either by his will or by operation of law

The phrase to the extent of the value of the inheritance to
which does that apply?
Obligations

Why obligations only? The rationale of the phrase?
For protection of the heirs

What is estate?
The totality of all the properties, rights and
obligations left behind the deceased.

What is patrimony?
An inherited estate; property inherited from the
paternal side

What is liquidate?
To settle a debt or an obligation in the form of
money

The heirs continue the personality of the deceased

Must there always be someone dying before succession takes
place?
No, Succession is not confined to that which takes
place upon the death of a person.

Succession can be understood in 2 senses:
General Sense: the transmission of rights and
properties from one person to another.
Technical Sense: denotes the transfer of title to
property under the laws of descent and distribution,
taking place as it does, only on the death of a
person.

WILLS2
A person during his lifetime would acquire rights, properties
and obligations, the totality of his properties would be his
PATRIMONY

Patrimony- the totality of the property, rights and obligation
of a person who is still alive.

What happens in the patrimony if this person dies?
It may or may not be diminish.

But in all likely, it would diminish, why? What is the effect of
death upon patrimony?
Because some of the rights and obligations may be
extinguished by death. We look at death as some
kind of a filter, so when death takes place, there will
be transmission, but not all rights and obligations
will survive death, some of them will be
extinguished.

After death had intervene, how do we now refer to the
property rights and obligations which have survive death?
With respect to the heirs, it shall be known as
inheritance;
With respect to the other persons of the rest of the
world, it shall be known as estate.

How do we classify the estate? Is this a person or is this just
the totality of the properties, rights and obligations?
It is both, because essentially it is the inheritance
(the properties, rights and obligations which have
survived death) but for a limited purpose afforded
the estate some kind of a legal personality, it is
considered to be juridical person.

Why does the law afford the estate this legal personality?
It is to enable to settle the pending affairs of the
decedent, pending affairs may include the
enforcement of right belonging to the decedent or
settling obligations owed by the decedent to third
persons.

Depersonalization?
It is the patrimony which was eventually liable or
answerable for the obligations of the person who
contracted the obligation. If we invoked relativity of
contracts, we are limited to heirs and the assigns.
heirs and the assigns will only be liable to the extent
of they receive, there will be no personal liability
vesting upon them.

Depersonalization was related to Obligations and contracts.
What is depersonalization of obligation?
It means that in the end every obligations will have
to be satisfied against the property of the debtor,
every obligation. Note, if you have an obligation,
what is the remedy of the creditor against the
debtor if it does not want to perform it voluntarily?

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To bring an action for specific performance. If the
debtor does not want to perform it personally and it
was performed by other persons then the liability
will be converted to reimbursing the creditor for the
expenses of letting another person to perform that
which the debtor should have done. And the debtor
should pay? Reimbursement from the debtors
property. If the obligation cannot be performed by
the debtor himself the remedy is damages, which
again will be satisfy to the debtors property. In that
preferably, but if the debtor does not have cash, the
court issues writ or levy to attach the debtors
properties, the properties will be sold and the
proceeds will be used to satisfy the obligation. All of
this showing that every obligation is satisfied against
your property. Depersonalization, patrimony to
patrimony, the debtor does not want to perform, it
cannot be perform, it can no longer be perform, the
creditor will ask for damages and such damages will
be satisfied against the debtors property. That
principle (depersonalization) support the existence
of the estate. In other words, the debtor himself
does not have to be alive to be able to satisfy an
outstanding obligation, the debtor becomes a
dispensable party. Even the debtor is dead, the
creditors has a recourse against whatever property
the debtor leave behind thru the person created by
law, the estate as a legal personality.

Why do we need that concept of patrimony to patrimony?
To protect the creditor and to create confidence in
transactions. Absence of such concept there will be
no or limited transactions. No one will have the
confidence to create transactions.

Succession vs Inheritance
Succession is the mode by which the inheritance is
transmitted while inheritance is the properties,
rights and properties which survive death.
How do we treat the corpse of the decedent would that be
property?
The corpse is not a property to be inherited

Who has a better right the spouse or the mother of the
decedent?
Spouse, because the corpse is a not a property to be
inherited

What right is afforded or acknowledge to the spouse?
The spouse has a limited right on how, where, when
the will be buried

What is the basis of saying that the spouse has the primary
right?
The law on obligation to give support
Spouses
Legitimate ascendants and descendants
Parents and their legitimate and illegitimate
children of the latter
Parents and their illegitimate and
illegitimate children of the latter
Legitimate brothers and sisters, whether
full or half-blood

How will we determine if a property, right or obligation will
survive death? When we say that rights are personal that will
not be extinguished by death, what do we mean by personal
right?
2 senses that which personal right is understood
Personal right in its general sense
inherent to the person
Personal right in its contractual sense - right
which survives death

Personal right vs real right
Personal right- enforceable against a specific of
definite person
Real right- enforceable against the whole world

A personal right may or may not be extinguished by death
because our basis that a right is so personal that it is
extinguished by death would be the nature of that right as
inhering to that person. So it is possible that we have a
personal right in its contractual sense which will survive
death.

E.g.
The right of the seller to collect from the buyer, it passes to
the estate. Such right is a personal in a contractual sense
because he can only enforce such right as against to the other
party to the contract to sell who is the buyer. He cant
enforce to any other person, in that sense it is personal. But is
it personal in its generic sense? is it something which is
inhered to the person of the decedent? NO, it is not personal
in nature in its general sense. So rights which will be
extinguished by death are that rights which are inherent to
the decedent. Personal right in its contractual sense, they are
not necessarily extinguished by death.

e.g. of personal right contractually and personal right by
nature
Right of consortium in the marriage

Are patrimonial rights be extinguished by death?
Generally transmissible

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What are patrimonial rights?
Right which are related to the property

e.g. of a patrimonial right which survives death
Right of ownership which passes on from the
decedent to his heirs

Exceptions, when will patrimonial rights be extinguished by
death?
By stipulation of parties
By provision of law

e.g. of patrimonial right extinguished by death because of a
provision of law
Right of usufruct

Why is it extinguished by death?
Because the law so provides, it is extinguished upon
the death of either parties

Parties in a contract of Usufruct
Naked owner and Usufructuary

Are the rights of obligations transmissible?
Yes

What are the rights of obligation?
The rights of the creditor and the corresponding
obligation of the debtor.

Obligations of the debtor are transmissible except those
which are:
Depending on the nature of the obligation (purely
personal)
intransmissible by express provision of law
stipulation of parties.

ESTATE OF HEMADY VS LUZON SURETY
Relativity of contracts- binds only the parties, heirs and
assigns. Contracts are generally transmissible, it is binding in
the heirs. But the law provides exceptions to general
transmissibility
Express stipulation of the parties
Express provision of law
Depending on the nature of the obligation

The Supreme Court applied this conditions, is the
obligation of a guarantor one which is extinguished upon
death by express provision of law? The SC said that there is
nothing in the law which says that it will be extinguished by
death. But what about the argument that death makes a
person loose his integrity when it is a requirement for a
guarantor, how will that affect the existence of the contract
after death? The SC pointed put that this right to require the
qualification can be waived by the creditor, should the
guarantor lose all the qualification after the guaranty is
constituted the creditor is given the right to ask for a
replacement if he wants to.
It is not also express in the stipulation of parties, the
contract is silent about it
The nature of the obligation, it is not purely personal
because if we treat the contract of guaranty in its barest form
it is just an obligation to pay a sum of money, to pay when
the debtor cannot pay.

ALVAREZ VS IAC
The heirs contend that the liability arising from the
sale made by their father to Siason should be the
sole liability of deceased/of his estate, after his
death. The Supreme Court held that the heirs cant
escape the legal consequences of their fathers
transactions, which gave rise to the claim for
damages by the Yaneses. That said heirs didnt
inherit the property involved is of no moment
because, by legal fiction, the monetary equivalent
thereof devolved into the mass of their fathers
hereditary estate. And the hereditary assets are
always liable in their totality for the payment of the
debts of the estate, the heirs however, are liable
only to the extent of the value of the inheritance

WILLS3

SANTOS VS. LUMBAO
Facts:
Heir- children of Maria who are the original
owner of the land and then pending the
settlement of Marias estate. Rita, one of
the co-heirs decided to enter into an
agreement with the spouses lumbao
pertaining to the inchoate right in marias
estate. Now apparently the document
bilihan ng lupa was witness by two of
Ritas own children. However after Ritas
death they no longer wanted to honor the
document or the sale; and what were they
saying? Their saying that they were not
bound of the document or sale entered into
by Rita, they did not want to give up the
property anymore contracted by Rita.
Ruling:
The heirs are bound to the actions by their
predecessor and must honor the contract
because Property, rights and obligations are
passed on to the heirs, also because the
transaction affects the property. The

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inheritance will be subject to whatever
transaction affects such property. In this
case the transaction is the deed of sale.

NHA VS ALMEIDA
Facts:
Margarita had an option to buy the
property because of the contract to sell that
she entered into with the NHA.
During her lifetime Margarita executed `a
document, which was denominated as
sinumpaang salaysay, it was witnessed by
two people in that sinumpaang salaysay. In
that sinumpaang salaysay kapag akoy
pumanaw n at naayos n ang aking mga
karapatan ay kilalanin ang kanyang anak na
si Francisca

They (heirs of Beatrice) also have a share to
the inheritance, because their mother
predeceased their grandmother so they
become also the co-heirs of margarita. It is
not therefore correct for francisca to
declare to the court that she was the only
heir left by margarita--- this is the purpose
of self adjudication.

Remember in the beginning that was the
clash. That was the theory of franciscaI
am the sole heir therefore the right goes to
me--- pero magkakaroon n sila ng
problema dahil hinahabol din ng ibang co-
heirs. So what does she do? Using the same
document she devise a new theory, she was
no longer claiming as an heir. This time
around she was claiming as an assignee.
The sinumpaang salaysay is actually an
assignment of right made by margarita in
my favor. That was now the new theory.
And it was a brilliant theory. Why? Because
it removes the sinumpaang salaysay from
the law on succession and at the same time
it renders irrelevant the actual use of self
adjudication. Now the NHA can actually
now decide without considering the
affidavit of self adjudication. Which if have
been allowed by the court and just focus on
whether or not there was a valid
assignment of right between Margarita and
Francisca--- that was their theory. And on
that premise the NHA granted the petition
of francisca.

Here again caught the heir of Beatrice to go
to court and question the grant and this
time around what did the S.C say? The S.C.
say that it did not constitute a deed of
assignment. Why not? By the very wording
of the Sinumpaang salaysay. What does it
mean? It means that the transfer be
effective, when? At the time of her death.
So, what could be a better explanation or
justification that it was a transfer mortis
causa, strictly pwedeng assignment yan coz
you can always have an assignment during,
what? During the lifetime of the transferor.
And what more when did margarita died?
She died in 1971; and when did the NHA
grant the right to Francisca? It was in 1986.
That is why the S.C said to admonish the
NHA, you should have known that at the
time you granted the right to francisca the
other heir of margarita had already a vested
right on the interest of margarita under the
contract to sell, because they gave the
grant after her death and succession to her
estate has already open, you could have not
ignore that, you should have not granted
the right to margarita.

For the purposes of discussion, with that
ruling of the S.C, that the other heir of
Margarita had a estate in the contract to
sell, does it necessarily mean all is lost for
francisca? That she could no longer claim
the right to the property as to be her own--
there is a possibility that she may acquire
the property solely and exclusively--- how?
Remember the sinumpaang salaysay? S.C
only rejected it as a deed of assignment but
it does not rule upon the validity as a last
will and testament.--- bahala n yung
probate court dian kung yan ay valid as a
last will and testament. If that sinumpaang
salaysay is obtained as a last will and
testament, then it would be possible for
francisca that she would be declare as the
sole owner or sole holder of the interest in
the contract to sell by virtue of the
sinumpaang salaysay, that is if it would be
validated as a last will and testament.


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Article 777. The rights to the succession are transmitted from the moment of
the death of the decedent.

Article 777the right of succession are transmitted from the
moment of death of the testator--- what does that mean?
Illustration:
Decedent: Pedro ; died at 4pm
Heirs: Mark, Lucas and Juan

Supposing that the filiation of lucas, mark and Juan are not
that are not establish at the time that Pedro died that the
court litigation lasted for around 15yrs to establish their
filiation. So 15 years after the death of pedro a lot of things
had happened, his business has grown and his estate has
doubled in value, so how much mark, Lukas and juan are
entitled to get? So what value do we use? The value at the
time when pedro died or the value 15yrs after?
15yrs after, because they become the owners at the
time of Pedros death. Even if the filiation was
proved after 15 years, it will retroact at the time
when the decedent died. They are owners as of 4pm,
at the precise moment when the decedent died

With regard to the fruits, what will be the basis of their right?
To the fruits, to the increase of the property by the estate of
pedro--- is it also by virtue of their right to succeed which was
deemed vested at the time of pedros death?
So as of 4pm at the day of Pedros death any
acquisition that they made in the form of fruit or an
income of the property would vest in them by virtue
of Ownership no longer as the right of succession.

When we speak of decedent we refer to whom? Who is the
decedent?
The person who has died.

Is it different from the testator?
So the testator is also the decedent only he left
better prepared because he left a last will and
testament.

And what do you call the people who stands to inherit from
the decedent?
The heirs,

And the heirs, the basis of their right to inherit would be? Is it
enough the heirs have right?
Either provided by the will or provided by the
provisions of the law. And in the absence of the will
they have to rely on what is provided by the law.

Is it possible that they rely both on the provisions of the will
and the provisions of the law?
Its possible.
How is it possible?
Mixed succession.

What is mixed succession? How does the law define mixed
succession?
Mixed succession is that effected partly by will and
partly by operation of law.

article 777it implies that death is the only requisite for
succession to happen, that is not correct, death is not
sufficient, because aside from the death of the decedent it
further requires that there should be a basis for succession,
either by the compliance of the last will and testament or
provisions in the law, but remember class in our jurisdiction
testamentary succession is given preference over the
intestate succession, that is why you only refer to the
provision in the law in the absence of or in the sufficiency of
the last will and testament that left behind by the testator.

But even if you have death, if you have a last will and
testament or even in the provision of the law would be
applicable, this would not be enough for succession to take
place. What else must happen?
There should be an acceptance.

Why should there be an acceptance? What is the rationale of
the law for requiring an acceptance?
Because no one can be forced to accept the liberality
of another.. in an abstract level it would seems to be
unthinkable that anyone would not want to be left
with something gratuitously. But if you would
consider certain facts or certain circumstances there
maybe more than ankle justification for the purpose
of refuse.

Example: if the X boyfriend of your wife would leave a last
will and testament giving her momento of their relationship
before would you be happy if your wife accept the
inheritanceyour wife would be hesitant to accept the
inheritance. The law recognizes her right to refuse. If you
dont want to accept the liberality you can actually decline,
there would be no succession taking place. So tatlo yun there
should be death, basis of succession and acceptance.

When we speak of death, what kind of death that the law
contemplates?
Either actual or presumptive death.

Actual death- failure to inhale oxygen, physical death, actual
death, clinical death.

Presumptive death- when the person is missing for the
period of 7 yrs he is presumed to be death, but for the

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purposes of succession 10 years from disappearance but if he
disappears in the age of 75- absence of 5yrs will be sufficient.

So what is the basis for declaration of presumptive death?
His disappearance but not just ordinary
disappearance it should be continuous
disappearance that is the basis of the law.
Disappearance must be continuous and unbroken.
10 yrs as a general rule but by way of exception if
the person disappeared after the age of 75, 5 yrs.

Why do we have that exception?
Because the law makes a presumption that the
person is weak before he disappears.

When do we consider or deemed that death has taken place
in case of presumptive death?
It is at the end of 10 yrs or five year period.

Now this period set forth, would there be any further
qualification to the rule relating to them? Do we always
observe to the 10yr or 5 yr period?
No.

Why?
There are circumstances that the 10yr and 5yr
period are not observed when the person who
disappear is in danger of death.

In that case what period do we follow?
4 yrs.

So what are these circumstances that would justify shortening
the period?
Vessel or aircraft lost during its voyage;
during war when the person missing is a member of
the armed forces and he actually participated in the
war; and
in other cases when there is a danger of death

Disappearance under the danger of deaththere is
uncertainty whether the person survive, this is the essence of
the provision, that is why you are to presume that he died.

Example:
the 9/11 incident if the person was inside the twin
tower before the incident happen and after that he
could no longer be located, then he is presumably
disappear under the circumstances grave danger to
his life, and if he could no longer be located, his body
could no longer be located then we are justified to
presume that he died in the attack.

Now suppose that we have these circumstances, there is a
disappearance for 10 or 5 yrs or a special disappearance for
4yrs, what are you suppose to do to be able to invoke
presumptive death? Are you suppose to go to court and ask it
to declare that the person disappearing, as presumptive
death?
No need to go to court, the court will not entertain
such claim, for the reason that any declaration of
presumptive death never attain finality, it can always
over turn or negated by the suddenly appearance of
the person who has been declared dead. so what do
you do? You just simply file an action for the
settlement of his estate and invoke in that
proceeding that he has been absent for this long
justifying the opening of his succession, but to bring
a separate or independent action for that purpose
alone, youll not be entertain by the court.

Can the disappearance occasioned by special circumstances
under art. 391, when is a person deemed to have died?
at the time of the disappearance.

USON VS DEL ROSARIO
Facts:
Faustino is married to maria uson but he
also have a sideline he had an affair to
maria del rosario in whom he had 4
childrenthis shows how aggressive a
mistress can bewe have the legal wife on
the other and a mistress on the other hand,
and yet after the death of the husband,
what did the mistress do? She was the one
who aggressively took over the land left by
the husband although she is a mistress,
although matalino din si Faustino kasi
pareho ng pangalan ang kinuha niang asawa
at kabit, db? Kaya siguro ngkaroon sila ng
anak ni maria del rosario dahil he took a
wife before it was discovered by maria
uson. Faustino died before the effectivity of
the civil code. Under the old civil code
illegitimate children dont have a
successional right what was the basis of
maria del rosario in claiming the land? Her
basis was the provision of the new civil code
giving right to succession to illegitimate
children , the civil code took effect 1950,
Faustino died in 1946. What was in the new
civil code for it to apply retroactively?
Vested right, this is the goal of her
contention lies, there was a provision an
ante___ provisions in the new civil code
which says that all new rights created

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thereunder will be given a retro active
effect even to those situation which arose
under the old civil code, but subject to one
very important condition that no vested
right are impaired. Were there already
vested rights if the successional rights were
transferred to the illegitimate children of
Faustino. And what did the court say? The
right of the wife would be impaired to
succeed to the estate of the husband was
already vested, when? At the moment of his
death, because his death precisely open
succession. So when he died rights are
already transferred to maria uson, they
were vested in her, that is why the right
given to the legitimate children could not
be given retro active effect because to do
so would mean a reduction of the right of
maria uson which was already vested.

It is provided in Art. 2253 that the new
rights recognized by the New Civil Code in
favor of illegitimate children have
retroactive effect only when they dont
prejudice any vested right of the same
origin. From the moment of decedents
death, the rights of inheritance of his wife
over the parcels of land became vested.
Hence, the new rights recognized by NCC in
favor on the illegitimate children of
decedent cant be asserted to the
impairment of the vested right of a person.

DE BORJA VS VDA. DE BORJA
Facts:
There are two proceedings, one in rizal and
one in nueva ecija. The one in rizal was the
settlement of the estate of Francisco, the
one in nueva ecija was the probate of the
will of josefa, the relationship of the step-
son and step-mom was getting tumultuous
by the moment. so they entered into a
compromise agreement, in that agreement,
tasiana was waiving all her rights that she
has to the estate of both josefa and
Francisco for the sum of 800,000. Jose, the
step son submitted the compromise
agreement both the cfi of rizal and the cfi of
nueva ecija. The cfi of rizal approved the
compromise agreement, the cfi of nueva
ecija denied. So appeal was taken by both
tasiana and jose from the rulings of the
lower court. But tasiana technically had a
change of heart, she no longer wanted to
continue the compromise agreement
perhaps she was thinking that she was
getting the mortem of the deed. Siguro
naisip nia masmarami p xiang makukuha
kung itutuloy na lang nia yung laban instead
of compromising but there was a
compromise agreement so it was a valid
agreement. So what does she do? She
invoke the case of guevarra vs. guevarra,
she was assailing the validity of the
compromise agreement on the ground that
it was according to her invalid because it
amounted to the partition of the decedent
prior to the probate of the will. Sabi ni
taciana hindi yan pepwede
Ruling:
but the court said no the ruling in guevarra
is not even applicable because this is not a
partition of the estate, what you simply did
was to sell your inchoate right it was a
waiver of whatever inheritance you are
entitled to both estate, but was that valid?
Can she do that? Yes, because at the time of
death of the decedents both josefa and
Francisco she was already entitled to the
inheritance. But there is a difference
between being entitled and being in actual
possession of the inheritance. Actual
possession can take place after the passage
considerable time, but after the moment of
death you are already an heir you are
already entitled to the inheritance
regardless of when you will going to be in
actual possession of the inheritance. It
maybe 1yr after, it maybe 10yrs after it
doesnt matter. the law recognizes your
right at the moment of death. Now what
can you do at that time when you only have
this right in the out-clock, kasi nga wala p
sayo yung inheritance ano naman ang silbi
non, may mana nga ako wala naman sakin
ang mana ko, You can actually exercise right
of ownership to your right and one act of
ownership will be what? The right to
dispose and this is what exactly what
tasiana did, she disposes her right to the
inheritance, can she do that? Absolutely,
because she is the owner of that right and
does she do it? Yes she did through the
compromise agreement. The compromise
agreement is valid and binding upon
tasiana. What actually can comprise your

8

inheritance at the end? After the settlement
proceedings are completed might may not
be the same as what she thought her value
of her inheritance at the time of the
testators death. Kunyare at the time of
death the value is 500,000, pero you must
know during the settlement proceeding,
there will be inventory and satisfaction of
the obligation of the decedent. mas
madaming obligasyon mas maliit ang
matitirang net estate. mas maliit ang net
estate mas maliit ang paghahatihatian. So it
is possible that the value of the inheritance
given at the time of death, may actually be
reduce after the obligation of the estate
has been satisfied. What is the significance
of that possibility? It simply means that the
transferee, the one who creates the
transferor in this case tasiana, the money
for the waiver, the money for the right,
actually stance at risk, he may receive less
than what he paid for kasi nga pwedeng
magbago yung value after the settlement of
the estate.
To summarize Whatever transmissible
rights sold or acquired by a person will be
subject of the outcome of the settlement
proceeding. Possible b n matapus kuing
bilhin yung part ni taciana e wala pa akong
makuha sa huli? Yes, that possible, if the
obligation of the estate are far more than
the property, so ano mangyayari sa
binayaran q kay tasiana? Deemed lost, I
cannot recover

The compromise agreement is valid, since a
hereditary share in a decedent estate is
vested immediately from the moment of
the death of the decedent, although the
Compromise Agreement has been entered
into pending probate of the husbands will.
The 2
nd
wife already had an interest in the
hereditary estate, though not yet
determined. The effect of such alienation,
though, is to be deemed limited to what is
ultimately adjudicated to the vendor heir.

BONILLA VS BARCENA
Since the decedent was still alive when the case to
quiet a title was filed, the court should therefore,
had acquired jurisdiction over the person. Upon such
death, her heirs had become the absolute owners of
her property, subject to the rights and obligations of
the decedent. Hence, her heirs should be allowed to
be substituted as parties in interest for the
decedent.

WILLS4

Article 782. An heir is a person called to the succession either by the
provision of a will or by operation of law. Devisees and legatees are persons
to whom gifts of real or personal property are respectively given by virtue of
will.

Is their a distinction between an heir and legatee/devisee?
Yes

Distinguished
heir is a person called to the succession either by the
provision of a will or by operation of law
Devisees and legatees are persons to whom gifts of
real or personal property are respectively given by
virtue of will

Does the law make a distinction?
no

Why is it necessary to make a distinction, when the law itself
does not?
The distinction between an heir and devisees and
legatees would appear to be significant with regard
to one specific instance which is Preterition.

The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time
of the execution of the will or born after the death of the
testator, shall annul the institution of an heir; but the devises
and legacies shall be valid insofar as they are not inofficious.
If the omitted compulsory heir should die before the testator,
the institution shall be effectual, without prejudice to the
right of representation (art.854)

What is effect of preterition?
annulling the institution of an heir

How is preterition be relevant?
If you are an heir and if there is Preterition your
institution as an heir will be annulled, which means
that you will not receive under the will. Example: It
was stated in the will that the sole heir will be Mr. A
but he is not related to the testator and it is proven
that there is Preterition, so instead of being the sole
heir and receiving the testators entire estate, he will
end up receiving nothing. Ganun katindi and effect
the Preterition. But if the testator instituted Mr. A
not as an heir but a devisee or legatee, even there is
Preterition and the institution of an heir is annulled,

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the devise or legacy in Mr. As favor will still be
respected. Thats why it is important to determine in
what capacity the person is receiving.

The law does not help us in relation to that one because
there is an overlapping distinction between an heir and
devisees and legatees. The definition of heir is broad enough
to include the definition of devisees and legatees as defined
in Art. 782.

So the conclusion is a devisee or legatee is also an heir, so
where do you draw the line?
The authorities are one in saying that the better
definition would be an HEIR is a person given the
entire estate or a portion of estate, on the other
hand a devisees and legatees would succeed to the
testators personal or real property.

The problem is if the estate is comprised of one single
property. How would you treat the person who will receive
the entire estate and there is Preterition?
Example: I institute Ms. Cruz as my heir, then
malalaman ninyo that my only property is house and
lot. The testator omitted his children in the will. So
what happens now?
If you treat her as an heir, she will not
receive anything because her institution as
such will be completely annulled, but if you
treat as devisee she will still receive at least
of the property because, the legitime of
the children comprises half of the estate.
Because of the device and legacy, you only
have to reduce insofar as it does not impair
the legitime. Hence, even there is
Preterition and the institution of the heir is
annulled, the devise and legacy will be
respected provided that the legitimes are
not impaired.

So how will we treat her?
Go by the tenor of the institution. If her
institution is to receive the entire estate
and not to a specific property, we will treat
her as heir, dahil isa lang yung property sa
estate. It was the intention of the testator
and because of Preteretion, she will not
receive anything. But if the disposition
pertains to the testators house and lot, she
will be treated as a devisee. In this case
there will be impairment of the devise to
the extent of in order not to impair the
legitime of the children but the devise will
be respected.

Different kind of succession:
Testamentary based on last will and testament
Intestate by operation of law; in the absence of
last will and testament, and when there no valid last
will and testament as when he does not dispose of
all his properties
Mixed Art. 780. It is effected partly by will or
operation of law.
Contractual - donations propter nuptias of future
property, made by one of the future spouses to the
other to take effect after death and to be done in
the marriage settlement which is governed by
Statute of Frauds.
Compulsory

Testamentary Succession
Article 779. Testamentary succession is that which results from
the designation of an heir, made in a will executed in the form
prescribed by law.

Intestate Succession
Article 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or
one which has subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose
of all the property belonging to the testator. In such
case, legal succession shall take place only with respect
to the property of which the testator has not disposed;
(3) If the suspensive condition attached to the institution
of heir does not happen or is not fulfilled, or if the heir
dies before the testator, or repudiates the inheritance,
there being no substitution, and no right of accretion
takes place;
(4) When the heir instituted is incapable of succeeding,
except in cases provided in this Code.

Mixed Succession
Article 780. Mixed succession is that effected partly by will and
partly by operation of law.

Compulsory Succession
Compulsory - also by operation of law; succession to
the legitime, takes place DESPITE the presence of a
valid will and applies both in testate and intestate
succession; it is compulsory succession because the
compulsion lies upon the decedent who has no
choice but to leave a certain portion of his property
to certain heirs who are specified in the law. The
compulsory heirs will also make up the intestate
heirs because the compulsory heir is necessarily the
testators nearest relatives. Kaya may confusion
between intestate heirs and compulsory heirs.
NOTE: The right of intestate heir to succeed may be
defeated by simply executing the last will and
testament but the right of compulsory heir cannot

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be defeated even upon the execution of a last will
and testament.

Who are to be considered as compulsory heirs under the law?
The following are compulsory heirs:
(1) Legitimate children and descendants, with
respect to their legitimate parents and
ascendants;
(2) In default of the foregoing, legitimate
parents and ascendants with respect to
their legitimate parents and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural
children by legal fiction;
(5) Other legitimate children referred to in
article 287.
(Art.887)

Legitime is that part of the testators property which he
cannot dispose of because the law has reserved it for certain
heirs who are, therefore, called compulsory heirs. (Art.886)

In case of illegitimate children, apply first the Iron Curtain
Rule then qualify

Compulsory Succession (illustration)
Mr. Francisco instituted Mr. X as his sole heir. When he died
he was survived by his wife, one legitimate child and four
illegitimate children. Mr. X argues that he is the sole heir.
How much will he receive?
The surviving spouse will get 1/4, the legitimate child
will get his legitime and the illegitimate children
will receive of the share of legitimate child which
is 1/4 hence Mr. X will not receive anything because
of compulsory succession.

Compulsory Succession takes precedence over testate and
intestate succession. If you have Compulsory Heir you can
only control the decedent ___ portion of the estate which is
known as the free portion it depends on the number and
type of Compulsory Heir.

Testate succession takes precedence over intestate, why?
because it is expresses the desires and wishes of the
testator while the latter contains only the presumed
will of the testator.

Contractual Succession
That which takes place when the future spouses
donate each other in their marriage settlement
future property in the event of death

Why is it contractual?
Because such disposition is made in a marriage
settlement

Why is it succession?
Effective upon death

What is the form of marriage settlement? What is it about the
marriage settlement which makes us say that the disposition
made therein which takes effect upon death would be a form
of contractual succession?
A contract

In the former Civil Code, oral marriage settlement is allowed
which is valid but unenforceable, but in the Family Code it is
required to be in writing to be valid and enforceable, hence
we have no more Contractual Succession because the Family
Code explicitly requires that donation of future spouses to
take effect upon death must now comply with the formalities
of wills and succession Article. 728. Donations which are to
take effect upon. the death of the donor partake of the
nature of testamentary provisions, and shall be governed in
the Title on Succession.

Article 783. A will is an act whereby a person is permitted with the
formalities prescribed by law, to control to a certain degree the disposition of
his estate, to take effect after his death.

In the definition provided by law, what is the indispensable
requirement to make the will a valid last will and testament?
There must be a disposition to take effect after
death. If this element is lacking we can conclude that
it is only an ordinary instrument that need not
comply with the formalities prescribed by law for the
last will and testament.

Example:
Mr. Flojo has illegitimate child but never recognized that the
child was his, but he drew an instrument where he
acknowledged the fact that he is the father of the child but
the recognition must take effect only upon his death. That
instrument was signed by Mr. flojo but does not comply with
the requirements provided by law for a valid last will and
testament. Would it still be a valid instrument? Will it be
given weight by the Court?
YES, because the instrument is NOT a last will and
testament and therefore to be valid the same need
not comply with the formalities required by law for a

Why do you say that it is not a last will and testament?
Because it does not contain any disposition to take
effect upon death.


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What if the only provision in the will is disinheritance and
nothing else?
It would amount to indirect disposition in favor of
intestate heirs who would receive in lieu of
disinherited heir.

VITUG VERSUS CA
Facts:
What does the husband want from the
estate?
Reimbursement for his advances
he made for the estate.

Where did the money in the bank account
come from?
From their conjugal property.

How did Rowena Corona the executrix,
attacked the Survivorship Agreement?
That it is not valid because the
contents of the same provide that
either one of the spouses will get
the fund upon the death of either
one of them, hence she contends
that it was a disposition mortis
causa, meant to take effect upon
the death and therefore the
Survivorship Agreement should
have complied with the formalities
of a valid will.

Did it complied with the formalities of a
valid will?
NO! It was just an ordinary
contract, it was hardly a will.

How did the Supreme Court resolved the
issue?
The Survivorship Agreement is
valid and need not comply with the
formalities required for a valid last
will and testament because it is not
a donation mortis causa because
the property are conjugal.

In a future marriage you have the husband,
wife and conjugal partnership of future
properties. Inside that marriage there are
three patrimonies: the husband, wife and
the conjugal partnership or community
property.

Even if you are married you can have your
separate property, now if what was
deposited is the separate property of the
wife, then the contention of Rowena the
executrix is valid. Because it will be a
donation of the wife of HER property to the
husband to take effect upon death, hence a
donation mortis casua which must be
contained in a last will and testament
complying with the formalities required by
law for a valid will. But if the fund is NOT a
separate property of the wife and NOT of
the husband, the fund is considered as
CONJUGAL PROPERTY. Under the law if they
both agree, they can actually dispose of it in
any way they want. In this case, they
invested the conjugal funds in the bank
account in a form of Survivorship
Agreement.

ALUAD VERSUS ALUAD
Discussion:
If the instrument is to be treated as a last
will and testament it would be NOT be
valid, but if the same is treated a donation
inter vivos it would be valid because there
was a conveyance of property. In this case
the same is notarized, there were 2
witnesses and there is conveyance of
property which are sufficient to make the
donation inter vivos valid.
Supreme Court held that it was a donation
mortis causa because it will take effect
upon the death of Matilde but it did not
follow the requirements provided by law for
the validity of a last will and testament.
Why was there even a conclusion as to the
true nature of the donation?
Because of the provision in the
instrument saying anytime during
the lifetime of the donor or anyone
of them should survive, they could
use, encumber or even dispose of
any or all of the parcels of land
herein donated.

Implied and even possible that Maria can
enjoy the property already even though
Matilde has not died yet and this would
support the contention that it was actually
a donation intervivos because it took effect
during the lifetime of the donor but the
Supreme Court said NO, there was only a

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miswording because the donation really
would took effect upon the death of
Matilde. In the end, it held that the same
did not comply with the formalities
prescribed by law for a valid will hence it
did not convey the property to Maria or to
put it more accurately it never at all
conveyed the property to Maria during the
lifetime of Matilde thats why Matilde was
never precluded or prevented from selling
her property even after the instrument was
executed by her.

Article 784. The making of a will is a strictly personal act; it cannot be left in
whole or in part to the discretion of a third person, or accomplished through
the instrumentality of an agent or attorney.

Can the making of a will be delegated? Where do you draw
the line, of what may be delegated and not?
The mechanical act (typing) of drafting the will may
be delegated, or writing the will, unless it is
holographic will.

Potential testator hired Atty. De Chavez in relation to his will.
The testator must specify his heirs first, in what capacity they
are succeeding whether as heirs or legatees or devisees,
specify how much and what property they will receive, the
institutions or establishments and the specific amount or
property they are getting. Atty. De Chavez can fill in the
details which amount of making the will for the testator but
even the bulk of the work was done by the lawyer, the fact
remains that all of the dispositions were done by the testator.
Article 785. The duration or efficacy of the designation of heirs, devisees or
legatees, or the determination of the portions which they are to take, when
referred to by name, cannot be left to the discretion of a third person.
Article 786. The testator may entrust to a third person the distribution of
specific property or sums of money that he may leave in general to specified
classes or causes, and also the designation of the persons, institutions or
establishments to which such property or sums are to be given or applied.

Would there be an instance when a certain degree of
delegation is nonetheless allowed by law?
There can be delegation provided that the amount
and property are specified, and the class of persons
or organizations, the person who was given the
power to make the determination is limited to
naming of persons or organizations belonging to
those specified and determination of the amount to
be given to them.

WILLS5

Article 783. A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the disposition of
this estate, to take effect after his death

What are the characteristics of a valid will?
Individual
Unilateral
Freely and voluntary
Solemn
Dispositive of property
Mortis Causa
Purely personal
ambulatory

Article 784. The making of a will is a strictly personal act; it cannot be left in
whole or in part to the discretion of a third person, or accomplished through
the instrumentality of an agent or attorney.

Purely Personal means the disposition in the will should also
be made by the testator himself but nonetheless it does not
preclude of the delegation of the mechanical aspect of
preparing the will. For example, typing or encoding the will
maybe delegated to the lawyer or the technical or agent of
the lawyer.

Article 785. The duration or efficacy of the designation of
heirs, devisees or legatees, or the determination of the
portions which they are to take, when referred to by name,
cannot be left to the discretion of a third person.

What comprises testamentary disposition which cannot be
delegated?
Designation/appointment of heirs, legatees or
devisees
Duration and efficacy of their (heirs, legatees and
devisees) designation
Determination of the portion they are to take when
referred to by name (when referred to by name-
an important qualification because of Art. 786,
wherein the testator is allowed to make a delegation
of authority to designate not just the identity of the
recipient but also the portion to be received by the
person. And this will happen if the testator will leave
a specific amount or property to specified classes or
causes.)

Article 786. The testator may entrust to a third person the distribution of
specific property or sums of money that he may leave in general to specified
classes or causes, and also the designation of the persons, institutions or
establishments to which such property or sums are to be given or applied.

Article 787. The testator may not make a testamentary disposition in such
manner that another person has to determine whether or not it is to be
operative.

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The person who was given an authority has actually have a
power not just to name the individual or entity or specified
classes or cause specified by the testator but he also have the
power to determine how much each of this people will be
getting. In reality, that pertains to a greater delegated
authority given to the third person because when the
recipient is named automatically the third person can no
longer venture into designating the portion they are to take.
(When there is a name) E.g I leave my estate to Peter, Juan
and David and I give the authority to Ms. Aguirre to
determine how much each of one will be receiving that is
not allowed (the exercise of the third persons power) why?
Because they are named individually and yet if the testator
will say Im leaving Php100,000.00 to womens causes and
the third person authorize to carry out the disposition is Ms.
Aguirre, we know what powers are given to her by virtue of
that disposition, she (the testator) actually name the causes,
the women causes, even the organization to the definite of
that disposition.

Article 788. If a testamentary disposition admits of different interpretations,
in case of doubt, that interpretation by which the disposition is to be
operative shall be preferred.
Article 790. The words of a will are to be taken in their ordinary and
grammatical sense, unless a clear intention to use them in another sense can
be gathered, and that other can be ascertained.
Technical words in a will are to be taken in their technical sense, unless the
context clearly indicates a contrary intention, or unless it satisfactorily
appears that the will was drawn solely by the testator, and that he was
unacquainted with such technical sense.

The very purpose of statutory construction is always to
determine the intention of the legislature, to determine and
to give effect the legislative intent.

In Succession, what will be determined is testamentary intent
or the intention of the testator. What is the testators intent,
thats why we have a law allowing the person to make a last
will and testament is to allow that person with unique
privilege to control the disposition of his property after his
death. So, because of that purpose we should determine
what the testamentary intent is.

First among the rules is when the testator make use of
ordinary words, what should we give in ordinary words?
Also ordinary meaning

Would there be any exceptions?
Whenever we have such fact that there is a
determination that there was an intention to use
such words in another sense

It is equally important to find out what does other sense
means, if there is no such determination of what does that
other sense means we cannot give effect to the testamentary
intent.

Example:
Mr. Mateo, a single man, not married, without
children but he is known to have a long term
relationship with Ms. Montesa, and it is publicly
known that he calls Ms. Montesa as baby. So he
made a will saying that his leaving his properties to
his only one Baby. Who is this baby in the ordinary
sense? It can only refer to a child which in fact he
does not have. Under the circumstances we would
know that he intended to use the word baby in
another sense.

What about technical words?
Technical words in a will are to be taken in their
technical sense, unless the context clearly indicates a
contrary intention, or unless it satisfactorily appears
that the will was drawn solely by the testator, and
that he was unacquainted with such technical sense.

Example:
Mr. Mateo, a fish vendor, he made a will on his own,
by simply writing it on a piece of paper, knowingly
that he has an adopted child but such child was not
judicially adopted. He made a will and gave
everything that he had to his adopted child Ms.
Aguirre. After his death somebody contested the will
saying that such deposition cannot be given an effect
because it say adopted child- someone who has
been legally adopted. Does it mean that the
disposition cannot be effected and the properties
should go to the legal heirs? In this case, we can
actually argued that notwithstanding that the
testator uses a technical term we cannot give its
interpretation as judicially adopted child because it
is established that it is an ordinary layman and he is
not familiar with legal terms and being a holographic
will so therefore we can relax the rule and make use
of an interpretation that adopted child in an
ordinary layman understanding.

Article 791. The words of a will are to receive an interpretation which will
give to every expression some effect, rather than one which will render any
of the expressions inoperative; and of two modes of interpreting a will, that
is to be preferred which will prevent intestacy.

Article 792. The invalidity of one of several dispositions contained in a will
does not result in the invalidity of the other dispositions, unless it is to be
presumed that the testator would not have made such other dispositions if
the first invalid disposition had not been made.


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Consistent with our purpose that we should always
determine the testamentary intent, the law acknowledges
that we always find a vast interpretation that will give effect
to all the provision of the will or at least every provision will
have come effect. The law also tells us that if it is impossible
to give effect to all of the provisions meaning to say that we
have to nullify some of the provision, then we preferred the
validity of other provisions unless it is shown that the testator
would not have made such other dispositions if the first
invalid disposition had not been made.

Example:
1st situation:
First Provision: Testator is giving a parcel of land to
his concubine
Second Provision: the testator made another
disposition giving 1M to the same person but he did
not make an express reference to that woman as a
Mistress.

The first provision is not valid but the second provision is
valid because there is no palpable recognition of their illicit
relationship which makes the first provision null and void.

2
nd
situation:
First Provision: Testator is giving a parcel of land to
his concubine
Second provision: the testator made another
disposition giving 1M for construct a house on the
parcel of land given to the same person in relation
to the first disposition

There is a dependency, so the first disposition being invalid
because of the illicit relationship such invalidity is carried to
the 2
nd
disposition.

As we said before, it is always possible that there is an
ambiguity or inaccuracy to appear in the disposition in a will.
But what kind of ambiguity can a will suffer?
2 kinds of ambiguity
Latent ambiguity
Patent ambiguity

There is ambiguity when there is an:
Imperfect description
When no person or property exactly answers the
description.

Example: Im giving my land to my co-employee Alcantara it
appears that there are 2 persons both of them surnamed
Alcantara working in the same company where the testator is
employed. It creates an ambiguity which of the two
Alcantaras is the one that the testator is referring. In reading
the will such ambiguity is not apparent, we will only find out
the ambiguity outside the will or circumstances outside the
will which makes the ambiguity Latent.

How should we solve such latent ambiguity?
Consult the will first, if there is no such answer,
consult extrinsic evidence

In kinds of ambiguity our first resort will always be the will
because it is the repository of testamentary intent. Always
consult the will. If we cant find the answers in the will then
we will be allowed to go outside of the will and consider
extrinsic evidence.

What kind of extrinsic evidence?
All kinds of extrinsic evidence except oral
declarations or testimonies of the testator

Why are we excluding those?
Because a dead person can no longer refute what is
being attributed to him.

Supposing that one of the Alcantaras basis was not an oral
testimony but it was an email message, would that constitute
a valid extrinsic evidence?
It can be accepted because it is not an oral
declaration.

Patent ambiguity- such ambiguity that is palpably apparent
on the face of the will, meaning by reading the will itself and
under the provision where the ambiguity lies, we can see that
there is something wrong with the disposition.
Example: I bequeath all of my houses to my friend to some of
my cousins

How do we solve patent ambiguity?
After we go by the provision of the will, then we can
consider extrinsic evidence but with certain
limitation because the law provides that we have to
consider the circumstances under which the will was
made, all other considerations will be excluded.

Example: in the preceding example, if it can be shown that at
the time of making his will 10 of his cousins attempted to kill
him, if the testator is estranged with his cousins he will not
leave them something to his cousins who made the attempt.

Article 781. The inheritance of a person includes not only the
property and the transmissible rights and obligations existing
at the time of his death, but also those which have accrued
thereto since the opening of the succession.


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Article 793. Property acquired after the making of a will shall only pass
thereby, as if the testator had possessed it at the time of making the will,
should it expressly appear by the will that such was his intention.

Point reference in Art. 781 is the death of the
decedent/succession opens, the successional rights will be
vested. Meaning to say that inheritance will include those
properties which accrue to the inheritance after the opening
of succession. Because any property (income, fruits) that will
accrue after the succession is opened, will that form part of
the inheritance? Inheritance is something that you received
from the decedent by virtue of succession, but if succession
has been opened and there is income, interest or accessions
to the property, would u as heir, be entitled to those income,
interest or accessions by virtue of being an heir? Or u become
entitled to them because u are the owner of the principal on
which they accrued?
As an owner

Art. 781 should not be in interpreted as being in any way
contradictory to Art. 793 because Art. 781 already pertain to
properties accruing to inheritance whose ownership has
already been vested.

Example: the inheritance includes a saving account, as we
know saving account earns income by way of interest. July 11,
the interest that will be accruing after july 11, will go to the
heirs by virtue of the savings account, the heirs are entitled
because he is the owner because ownership was vested when
succession was opened.

Art.793, basically says any last will and testament that has
been made can only cover those properties existing at the
time of making of the will, it cannot include after acquired
properties. It is important to understand that when we say
after-acquired properties the point of preference is the
making of the will not the opening of succession. So any last
will and testament that has been made cannot cover after-
acquired properties unless there is an express provision in the
will covering after acquired properties.

Example: u make a will, in this will the savings account is
given to Ms. Aguirre, the will is made today July 11. After July
11, you as the testator made a deposit with the savings
account, the original deposit amount of 1M has grown to
10M at the time of ur death. Will Ms. Aguirre be entitled to
the 10M? the amount that has been made at the time of the
death of the testator? Or the 1m, the amount that is the same
in the provision of the will?
1M

why is she not entitled to the other 9M?
because it is in the nature of after acquired property,
acquired after the making of the will.
Can she be entitled to the other 9M?
yes, provided that there is an explicit provision
saying that the will covers after acquired properties.
If there is no such provision,

what will happen to the 9M?
it will govern by intestate succession.

Article 794. Every devise or legacy shall cover all the interest which the
testator could device or bequeath in the property disposed of, unless it
clearly appears from the will that he intended to convey a less interest.

Article 795. The validity of a will as to its form depends upon the observance
of the law in force at the time it is made.

What govern the execution of last will and testament?
Extrinsic validity- shall be govern by the law in force
at the time the will is made
Intrinsic validity- shall be governed by the law in
force at the time of decedents death

Testamentary Capacity

How important is testamentary capacity in the validity of a
last will and testament?
If u dont have testamentary capacity, u cannot
made a valid will, the last will and testament is null
and void

When testamentary capacity should take place?
At the time of making of the will

Who has a capacity to make a will?
Article 796. All persons who are not expressly
prohibited by law may make a will.

Article 798. In order to make a will it is essential that the testator be of
sound mind at the time of its execution.

The person should be of sound mind. If u would look around
the classroom, who among ur classmate is of unsound mind?
None

Why? What does the law presumes?
The law presumes that every person is of sound
mind

Why does the law presumes?
It is easier to make such presumption.

What is soundness of mind? When does a person consider
that he is of sound mind?
Requirements of sound mind only for the purpose
wills and succession

16

o The testator must know the nature of the
estate to be disposed of
o The proper object objects of his bounty
o The character of the testamentary act

Negative definition of sound mind- the law does not require
that the mind is wholly unbroken or unimpaired by disease,
injury or other causes.
Article 799. To be of sound mind, it is not necessary that the testator be in
full possession of all his reasoning faculties, or that his mind be wholly
unbroken, unimpaired, or unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to
know the nature of the estate to be disposed of, the proper objects of his
bounty, and the character of the testamentary act.

What should be present when it comes to soundness of mind
for us to say that a person although his mind in impaired or
injured?
He should be in touch with the reality

Article 800. The law presumes that every person is of sound mind, in the
absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at the time of
making his dispositions is on the person who opposes the probate of the will;
but if the testator, one month, or less, before making his will was publicly
known to be insane, the person who maintains the validity of the will must
prove that the testator made it during a lucid interval.

General Rule- the presumption is in favor of soundness of
mind

Exception- if the testator, one month, or less, before making
his will was publicly known to be insane, the presumption is
now abandoned

Who has the burden of proving the soundness of mind?
None, because there is a presumption of soundness
of mind

Who has the burden of proving the unsoundness of mind?
The person whom opposes the probate of the will,
unless the exception applies which is when the
testator is publicly known to be insane a month or
less after the execution of the will, in which case the
burden is upon the proponent of the will.

What does the proponent of the will prove?
That the will is executed during lucid interval

Why lucid interval?
Because the law only requires that testamentary
capacity be present at the time of the execution of
the will, if the lucid interval will allow the testator to
do that, then the will is valid.
Article 797. Persons of either sex under eighteen years of age cannot make a
will.
Would the gender of the testator affect the testamentary
capacity?
No

A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree
the disposition of this estate, to take effect after his death. Is
this an accurate definition that a will is an act?
No, the will must be in writing. An oral will is not
valid.
Article 801. Supervening incapacity does not invalidate an effective will, nor
is the will of an incapable validated by the supervening of capacity.
Article 802. A married woman may make a will without the consent of her
husband, and without the authority of the court.
Article 803. A married woman may dispose by will of all her separate
property as well as her share of the conjugal partnership or absolute
community property.

2 kinds of will
Notarial will
Holographic will

The notarial will is more formal than holographic will. A
holographic will is written, dated and signed in the hand
writing of the testator.

SUROZA VS HONRADO
Testatrix, who was an illiterate, supposedly executed
a notarial will in English and was thumbmarked by
her wherein she bequeathed all her estate to her
supposed granddaughter Marilyn. The opposition to
the probate of said will assailed the due execution
thereof, and alleged that the institution of Marilyn as
heir was void because of preterition of Agapito,
testatrixs anak-anakan. The Supreme Court held
that the will itself stated that the same had to be
translated to the Filipino. This could only mean that
the will is written in a language not known to the
illiterate testatrix. The judge, on perusing the will,
could have readily perceived that the will is void.


17

ABANGAN VS ABANGAN
The opposition to the probate contended that there
was no showing that testatrix knew the dialect in
which the will was written. The Supreme Court held
that the circumstance that the will was executed in
the dialect of Cebu, where testatrix was a neighbor is
enough, in the absence of any proof to the contrary,
to presume that she knew the dialect. Even if this
presumption doesnt apply, still the attestation
clause need not allege knowledge on testators part,
since this fact may be proved by evidence aliunde

WILLS6

Article 804. Every will must be in writing and executed in a language or
dialect known to the testator.
Article 805. Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name written by
some other person in his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in the presence of the
testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages shall
be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express direction,
in the presence of the instrumental witnesses, and that the latter witnessed
and signed the will and all the pages thereof in the presence of the testator
and of one another.

Lets go to the requisites of a valid notarial or ordinary will.

What are the requisites?
It must be in writing
It must be in a language or dialect known to the
testator.
It must be subscribed at the end thereof by the
testator himself or by the testators name written at
the end thereof by the testator himself or by the
testators name written by some other person in his
presence and by his express direction.
It must be attested and subscribed by three or more
credible witness in the presence of the testator and
of one another.
It must be signed by the testator or the person
requested by him to write his name and the
instrumental witnesses of the will on each and every
page thereof except the last on the left margin
All pages must be numbered correlatively in letters
placed on the upper part of each page.
It must contain an attestation clause
It must be acknowledged before a notary public by
the testator and witnesses

You said that these requisites that you mentioned is
applicable to a notarial will. Is there any other kind of will?
Holographic will
Holographic will is one which must be entirely
written, dated and signed by the hand (in the
handwriting) of the testator himself.

You can see that the holographic will is less formal than a
Notarial will. But even then, there are certain requisites that
are common to both notarial will or holographic will, so what
are these requisites?
It must be in writing and
It must be in the language or dialect known to the
testator.

Now this fact, whether the will is written or not, it is
immediately apparent.

Now, what about that the will must be in the language or
dialect known to the testator? Does the law require that this
requirement must be in the will? In other words, Must the will
say so? Or must the will states that it must be in the language
or dialect known to the testator?
NO.

How do we establish this?
It doesnt have to appear in the will, it may
proven by extrinsic evidence

Now, additionally, would there be any presumption in the law
regarding the knowledge of the testator of the language or
dialect known to the testator?
Yes. There is a presumption that testator knows the
language or dialect.

What is the basis of your answer? Is it the presumption
provided for by law? What do you think is the basis of this
presumption? What is the authority to make this
presumption?
It may also be inferred from the fact that it was
made in the dialect of the locality where testator is a
resident and that dialect of that locality is the same
dialect in which the will is written

ABANGAN v. ABANGAN
What is the issue in relation to the provision of article
804?
The will did not say that it was in the
language or dialect known to the testator.


18

Would that be a fatal defect?
I think to establish fraud. And it can be
proven by evidence aliunde.

The court still took the occasion, took the
opportunity to lay down the presumption. The
presumption is that the will is written in the
language or dialect known to the testator, in the
locality, or if executed, or if the testator happens to
be residing in the same locality.

What is the effect if a will is shown is written to be not in the
language or dialect known to the testator?
The will is null and void

Lets go to the requisites of a valid notarial will

It must be subscribed at the end thereof by the testator
himself or by the testators name written at the end thereof
by the testator himself or by the testators name written by
some other person in his presence and by his express
direction.

What does subscribe mean?
To subscribe means to sign.

When you are to signing a document, are you limited to
signing your full signature? Does it require that it be in your
full signature?
No. It can be the initial, or the last name or the full
name of the testator. Provided that the testator
intends that to be his signature.

It is the matter of intention. SO if I have to write in
full name, or if I have to write in usual signature,
what matter is that it is his intention to use what you
have written as his subscription.

What is the purpose of this requirement to subscribe?
To identify the document as the will of the testator

When we say that it is the purpose to identify, we are
referring to the subscription of your name at the end of the
will or in the left hand margin? Where should the signature
appear?
At the end of the will.

You are seems to be very specific on the location, how come?
Because when the testator signs at the end he
intends that such is the last disposition

What is the purpose of the signature appearing at the end of
the disposition?
To prevent fraud

What about the signature appearing on the left hand margin?
How would the signature on the left hand margin serves to
show the number of pages of the will?
the purpose should be to authenticate or to identify
the pages of the will but not to show the number of
pages that the will has.
The presence of the signature is to prevent any
intercalation or the substitution of the pages.

Who are person that can subscribe the will?
Another person may subscribe the will. By some
other person in his presence, and by his express
direction and attested and subscribed by three or
more credible witnesses in the presence of the

The law does not require any justification or explanation
before another person can subscribe the name of the testator
for himself.

What is that required is that a third person should sign under
the authority of the testator, in his presence and this fact
should be reflected in the attestation clause. If it is not
attested in the attestation clause, the will is Null and Void

What should the third person write on the will if he is asked by
the testator to sign for him?
He should write the name of the testator

Is it required that the third person should also write his name
NO, it is not required

Is it required that there is some kind of document evidencing
authority to sign?
No. It is not required. It is not required that a SPA be
attached at the back of the will. This is already
addressed that the signing be done at the presence
of the testator.

PAYAD V. TOLENTINO
What does this case tells you?
First, Subscription is not limited to affixing
ones signature. Subscription can include
printing of marks that can be associated to
the testator. In this case, what mark is that,
it is a Thumb mark.
Secondly, a thumb mark is acceptable
subscription. It is acceptable as a form of
subscription then the will was not

19

effectively signed by the third person on
behalf of the testator because it is in thumb
mark. Because of this, there was no longer
need for a statement in the attestation
clause to the effect that a third person
signed in his presence and by his express
direction.

The attestation here would be perfectly
valid

MATIAS VS SALUD
Facts:
it would appear that the deceased, who left no
ascendants or descendants, bequeathed most of her
properties to her niece Aurea Matias, in recompense
for the services rendered by the latter to the former
for more than 30 years. Some legacies were made to
her other nephews and nieces. Aurea Matias was
appointed executrix without bond. The probate of
the deceaseds alleged will was opposed by Basilia
Salud, another niece of the deceased. After hearing,
the trial court denied the documents admission to
probate, principally on the grounds that the will was
not executed and witnessed as required by law;
nonproduction of witnesses, and fraud in the
execution of the will
Ruling:
The legal requisite that the will should be signed by
the testator is satisfied by a thumbprint or other
mark affixed by him and that where such mark is
affixed by the decedent, it is unnecessary to state in
the attestation clause that another person wrote the
testators name at his request. While in some cases
the signing by mark was described in the will or in
the attestation clause, it does not appear that the
Court ever held that the absence of such description
is a fatal defect. The will having been executed and
witnessed as required by law, the same should be
admitted to probate

GARCIA VS LACUESTA
In this case, the testator supposedly signs by affixing
a cross to the will. And he never signs his name
although his name was signed for him by Atty. Javier,
the problem is, that the attestation clause did not
indicate that there was an authority given to Atty.
Javier to sign on behalf of the testator. So, what did
he tried to do?
He tried to invoke the previous cases in
Payad v. Tolentino. They were saying that
there is no need for attestation clause to
contain such statement because of the
presence of the cross.

If the cross, unacceptable form of subscription to
show that his presence will do away with the need
for the attestation clause to inure the statement
regarding the delegation of the authority made by
the testator. Would it be acceptable act of
subscription? Remember that subscription not with
regard to the signature of the testator, although
ideally it is by his full signature that the testator
should subscribe or sign the will. In signing
important documents, it should be in full signature.
But such is not even a requirement. You can sign in
your initials or in any way that you want so long as
your intention is there. Now, supposing that there is
such an intention here, would it be acceptable, would
the cross be acceptable? can this be liken to a thumb
mark?
Supreme Court said, No. You cannot rely on
the cross on the same manner that you rely
on a thumb mark. Thumb marks are unique
for every individual. No two thumb marks
are alike. In other words, with regard to the
thumb mark, there is a clear, categorical
and an reliable association between a
person who create the thumb mark and the
person himself. There would be an
association.

But what about the cross? We said earlier
that so long that the intention is there?
But then, we have to think of over
all purpose of these formalities and
solemnities.
What is the purpose?
To guard against any fraud.

If you accept this as sufficient subscription,
would you still be faithful for this purpose
regarding this fraud?
Not anymore, because a cross is a
cross. My cross would not be
different to the cross of Ms.
Bermudez and to the cross of Ms.
Domingo. That is only a cross.

Who can say that it is my cross?
Its hard to tell. You cannot just
readily accept it.


20

There was no showing even that this was
the usual way that the signature signed his
name.

What does that tell you?
Had it been the case that this was
his usual signature, that this was
what he best guide in terms of
identifying himself, this could have
been acceptable.

If for example, in case of ZORRO- signing Z
Would you accept? How do we identify him?
By signing Z.

And you apply the ruling of the Supreme
Court, would you accept the letter Z as a
subscription?
Yes. Because in the case of Zorro,
there is no doubt that usual way
the testator Zorro signed his name
or identify himself. There is an
established association.

Whereas the cross which allegedly by
Antero Mercado, there is no established
connection between the cross and Mr.
Mercado. There was no showing that that
this was the usual way by which he signs.
That statement is pregnant with
implication. Had it been the reverse or had
it been the usual way in signing his name, it
could have been acceptable.

BARUT VS CABACUNGAN
The implication was that the name of the testator
and the signature of the person who supposedly
wrote her name, were not done by one and the
same person. Another person actually wrote the
name of the testator and another person also signed
below the name of the testator.

Now, would this be a fatal defect?
Remember that the law does not even
require that the person who actually writes
the name of the testator be identified in the
will.

You always suppose to write the name of the
testator. It is sufficient that the attestation clause
explained it, that a third person signs for the
testator, in his presence and under his express
authority.
It is immaterial, it does not matter, who actually
write the name of the testator. It is immaterial who
write the name for him, it is more irrelevant, it is
more unimportant that the name of the person,
does not appear in the will. Any discrepancy will not
affect the validity of the will.

What about the witnesses, are you suppose to sign
the will as well? What is the participation of the
witnesses in the application of the will?
The establishment not to the contents of
the will which they do not have to know but
to the fact of execution of the will. Thats
why that the will should not have been in
the language known to the witnesses,
because they are not required to know the
contents of the will.

Now, what is their participation in the implication of
the will?
They are required to authenticate and
identify the will and also, they are required
to attest to its execution.

How do they carry out this function of identifying or
authenticating the will?
By signing on the left hand margin on each
and every page of the will except the last
page and same purpose as the signing of
the testator, to prevent any intercalation of
the papers of the will.

The function of attesting the will? How was this done
by the witnesses?
They do it by executing an attestation
clause. The attestation clause must state:
the number of pages used upon which the
will is written, and the fact that the testator
signed the will and every page thereof, or
caused some other person to write his
name, under his express direction, in the
presence of the instrumental witnesses, and
that the latter witnessed and signed the will
and all the pages thereof in the presence of
the testator and of one another.

What constitutes presence?
It constitutes Sight or Vision and Proximity
of Position

Sight or Vision
Act is done in the presence of one who if he
wants to, with reasonable case, without

21

danger to his life and without changing his
relative position can see the act.

It is sufficient if the person, if he wants to,
can see the act by simply casting his eyes in
the proper direction.

Proximity of Position
When the act is done at a point close to a
person so that it may be said to be in his
presence.

The requirement of presence applies to both
witnesses and testator

Must these elements of presence which is proximity
and sight always concur?
Only with respect to the witnesses. (that
proximity and sight must concur) But to the
testator who is blind, obviously, the
requirement of sight cannot be met.
It is a very well known fact that people who
cannot see have

NERA VS RIMANDO
In the case, we have two separate rooms.

witness
testator Curtain
witness

We have two adjoining rooms. A small room and big
room. There was a curtain. The testator and the
other witness was in the small room and the other,
on the bigger room and that there was a curtain.

In reality, it was established that all the witnesses
were in a small room.

But the Supreme Court was not happy on what the
lower court held that it could not have mattered in
the will.

But the Supreme Court held that, had this been the
case, that one of the witness was actually in the big
room, and separate by a curtain and the will would
have been invalid because there was no compliance
with the requirement that signing be done by the
testator in the presence of the witnesses and by the
witnesses in the presence of the testator and of one
another.

Why there is no presence?
Because no matter what the witness does,
the one who is supposedly in the bigger
room, he cannot, by the mere moving of his
head, casting of his eyes at direct direction
of what is going on in the smaller room.
There was a curtain between the two
rooms.

Requirement: the testator, or his agent, must sign every
page, except the last, on the left margin in the presence of
the witnesses

ICASIANO VS ICASIANO
These requirements are mandatory. Thats why the
will must be in the formal of document. So, if you do
not comply with the mandatory requirement,
ordinarily, your will, will be Null and Void. However,
even as you say this, you should always be
reminded, that these formalities are meant to
safeguard the will. So if these objections of
safeguarding the will are otherwise achieved, you do
not have to be as ___ technical or formal
requirement. To do so, would be to defeat the
testamentary intent.

So, in this case, the Supreme Court relaxed the rule.
Why?
First, because the witness who failed to
signed the third page, testified in court.
That he was threatened when the will was
signed.
Secondly, we have also in evidence a
duplicate original, it is another copy of the
will that was executed at the same time as
the original. In evidence, a duplicate original
or one executed simultaneously with the
original copy is as good as the original. We
can afford to relax the rule.

CAGRO VS CAGRO
This case is in relation to the requirement of the
signatures of the witnesses on the left hand margin,
but this time, in relation to their duty to provide an
attestation clause of the will.

The will here only consisted of a single page.
However, the witnesses did not sign under the
attestation clause, what they did sign was the left
hand margin of the document, of the one page will.

22

When the will presented for probate it was opposed
for this ground, that there was no attestation clause
because of the failure of the witnesses to affix their
names at the end of the attestation clause.

The proponents of the will wanted the SC to treat
that the signature on the left hand margin as
sufficient, both to authenticate (left hand margin)
and to constitute as attestation of the last will and
testament.

What the Supreme Court says or how the Supreme
Court explains? Why it cannot constitute that the
signature on the left hand margin as sufficient
signature as well for the attestation clause?
Because of the purpose, we pointed out
earlier that one is for authentication and
identification and the other is more
substantial act of attestation.

How did the Supreme Court distinguish attesting the
will or one simply identifying and authenticating a
will?
The Attestation clause is a written
memorandum of the act or the
circumstances surrounding the execution of
the will. It is not simply a mechanical act of
identifying or authenticating a document. It
is more substantial than, when the only
signature one which serves to authenticate
or to identify a document, it could not
expand its scope or its effect to include
attesting.

Say again that this is the document that the
witnesses signed, by signing on the left hand margin,
is not the same as saying that this document was
published to the witnesses to them as the last will
and testament that it was signed in their presence,
that they all signed in the presence of the testator
and of one another, that is different.

What could have happened if the circumstances
were reversed? Or what if the attestation clause
which contains the signature of the witnesses and
the left hand margin was remain blank?
Then the will could have pass probate. For
the simple reason that attesting a will, a
one page will in this case would necessary
include the act of identifying or
authenticating a will. Identifying or
authenticating does not necessarily include
attesting but attesting. Specifically if the
document consist of one page would
necessarily include identification and
authentication.

Dissenting opinion of Justice Bautista
That the Supreme Court may have been unduly strict
in this case because the reason of supreme court
that Maybe there is no attestation clause in the last
will and testament and they only just typed it or
attached it. This could be a more fatal defect.
But according to Justice Bautista, the witnesses
themselves testify that when they signed, the
attestation clause was already in the will. What is his
point, the point is that the objective of the law of
safeguarding the will against fraud had already been
achieved. There was no use to be strict anymore,
nagsabi naman ang mga witnesses eh, when they
signed, the attestation clause was already there.
Mali lang siguro ang pinaglagyan ng ating lagda.
But then, the Supreme Court stood by its ruling and
declared that the will as null and void.

Requirement: It must be acknowledge before a notary public
by the testator and the witnesses.

When we say acknowledge, what does it mean?

Article 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to retain a
copy of the will, or file another with the office of the Clerk of Court.

AZUELA VS CA
We already know how the Supreme Court ruled on
failure to sign the Attestation Clause in Cagro v.
Cagro, what about the failure of the witnesses and
the testator to acknowledge the will before a Notary
Public? What is that about? What the notary public
write on the will as acknowledgment? nilagdaan ko
at ninotaryo ko ngayong petsa ng Would that be
sufficient acknowledgment?
No, In fact the Supreme Court said you have
to subscribe before this last day of
But according to the Supreme Court said
that acknowledgment requires much more
from the party acknowledging.

So in relation to the requirement that we are
discussing, the requirement of acknowledging before
a notary public, what does the Supreme Court said?
What was the explanation given by the Supreme
Court. So what is that? What comprises
acknowledgment?
It was a declaration. It is a declaration that
this is my act and this was done voluntarily.

23

JAVELLANA VS LEDESMA
Whether or not the acknowledgment is considered
to be a part of the execution of the will.

The codicil here requires the acknowledgment, Why?
The Codicil was executed after the
effectivity of the Civil Code.

The problem here is that the Notary Public did not
affix his signature in the will in the presence of the
testator.

Would this be a fatal defect? Can the Notary Public
also act as the witness to the will?
If there are three or more witnesses, they
can act as a witness, but if not, they cannot.

The law requires that the will must be acknowledged
before a notary public by the testator and the
witnesses. And for practical point of view, a person
cannot acknowledge before themselves.

GUERRERO VS BIHIS
Where was the will acknowledged?
At the testatrixs residence in Quezon City.

The notary public was located in?
Caloocan City

Basically, a Notary Public who notarizes outside of
the place of his commission, would not be acting as a
Notary Public. Does not have any authority to act as
a Notary Public. SO that, in the end, this will was not
acknowledge before a commissioned officer. For
that, the will is Null and Void.


24

WILLS7
Article 805. Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name written by
some other person in his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in the presence of the
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages shall
be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express direction,
in the presence of the instrumental witnesses, and that the latter witnessed
and signed the will and all the pages thereof in the presence of the testator
and of one another.
If the attestation clause is in a language not known to the witnesses, it shall
be interpreted to them.
What are the Requisites of notarial will?
It must be in writing
It must be in a language or dialect known to the
testator
It must be subscribed at the end thereof by the
testator himself or by the testators name written by
some other person in his presence and by his
express direction
It must be attested and subscribed by 3 or more
credible witnesses in the presence of the testator
and of one another
It must be signed by the testator or the person
requested by him to write his name and the
instrumental witnesses of the will on each and every
page thereof, except the last, on the left margin
All the pages must be numbered correlatively in
letters placed on the upper part of each page
It must contain an attestation clause
It must be acknowledge before a notary public by
the testator and the witnesses

The testator does not attest. Attestation is the sole act of the
witnesses

The right to make a will is given to every body except if they
are expressly prohibited by law to make a will since the only
requirement is testamentary capacity.

So necessarily even if the person is illiterate, blind, deaf or
dumb, or deaf and dumb that person still has the capacity to
make a will.

How will these special circumstances affect the requirements
for a valid notarial will?
There would be additional requirements in order to
make the will valid.

Article 808. If the testator is blind, the will shall be read to him twice; once,
by one of the subscribing witnesses, and again, by the notary public before
whom the will is acknowledged.

What will be the additional requirements?
If the testator is blind the reading should be done
twice and successively. 1
st
by one of the subscribing
witnesses then followed by the notary public. We
need not to follow a certain order. It can be
interchanged.

Article 807. If the testator be deaf, or a deaf-mute, he must personally read
the will, if able to do so; otherwise, he shall designate two persons to read it
and communicate to him, in some practicable manner, the contents thereof.

What if a person is shown to be deaf or cannot speak or both
deaf and dumb?
The fact that a person is deaf and dumb will not
necessarily require the application of the additional
requirements. It is only if it shown that the testator
is not able to read and write in which case he needs
to designate 2 persons to communicate the will the
him in some practicable manner. Since the testator
is deaf reading to him the will is useless so
necessarily the person he assigns should be people
who are comfortable with sign language.

When is a person considered blind?
Unable to see.

There are various degrees of blindness.
Totally blind,
practically blind,
color blind (irrelevant).

GARCIA VS VASQUEZ
Facts:
Laid the meaning of blindness for purposes of Art.
808
How old was the testator at that time?
She was nearing 90. She died at 90 year old.
How was the will prepared? Describe the physical
appearance of the 1960 will.
Written in a sheet of paper. It was obvious
that whoever prepared the will tried to fit
everything in that single sheet of paper.
There was no margin (top or bottom or at
the sides). Single spaced, was written in
tagalong but with flavor of Cebuano. That is

25

obvious that it was prepared by someone
not very well versed with the Tagalog
dialect. There were typographical errors.
BUT most importantly the testimony of the
witnesses that the testatrix signed the will
after reading it silently. She was not reading
it aloud.

Why would that be significant?
Had it been some other testator who made
the will and he is blind or deaf mute, you
would not entertain any doubts that he did
read the will and he understood.

But what is about Gliceria which made the SC doubt
that she really read the will and understood its
content?
It was said that she was nearing 90 when
she executed the will. And of course such a
person at that age is no longer in the peak
of health. She has suffered many illnesses.
Among which was cataract but the same
was removed and she was treated w/
spectral lenses.
But the lenses only allowed her to see at far
distances, because it is not a natural lens
which adjust the vision. If you read at a
close distance you can no longer see or
read. It is not conclusive that since there
was evidence that she can still go around
and entertain visitors on her ability to see,
to read her last will and testament. Doctors
also issued certification to the effect that
she had good eyesight and this was the
document or evidence that the proponent
of the will was counting upon. But the
doctor said that when he said that she has
good vision, that means she could see at a
distance and this does not include her
ability to see near objects.
The bottom line is that Gliceria was not
totally blind but for purposes of the
execution of her will did the SC consider her
as someone who was blind and who
therefore fall under the Art 808?
Yes

How did the SC justify that ruling?
SC moved beyond the literal words of Art
808 and considered the purpose of the law -
To protect someone who cannot read his
own last will and testament. And the SC
recognized that people who cannot read
their last will and testament are not limited
to those who are suffering from blindness.
Even though you have difficulties seeing,
even though you have very poor vision
would fall under the characterization. This
also holds true for illiterate, those who
cannot read or write.
Because of this since Art 808 is deemed
applicable to Gliceria SC said that her 1960
will was duly attested, because the
provision of Art 808 were not followed.

ALVARDO VS GAVIOLA
Facts:
This was the sequence of the events. He first
executed a holographic will then he executed a
notarial will.
What is provided for in the notarial will?
Disinheritance of the illegitimate son and
revocation of the holographic will.

What kind of probate was it?
It was ante-mortem. Probate during the
lifetime of the testator.

And in fact, who petitioned for the probate of
holographic will?
Testator himself.

Will was not read by the testator himself. There
were 4 who were reading along with Atty. Rino.
While Atty. Rino was reading it aloud.

What was the condition of the testator at that time?
He was suffering from glaucoma. In fact he
had to modify his notarial will because he
had to sell some properties to finance his
operation.

You can understand the claim of the illegitimate
child because its practically for the facts with
admission to probate of the holographic will. The
only thing that stands in his way is the notarial will
revoking the holographic will and disinheriting him.
But if he is able to have the notarial will denied
probate that means the holographic will stand and
he gets the estate. That why it very important for
them to remove the notarial will.

Oppositors contended that Art 808 was not
complied with to letter. How should they have done
things?

26

The will should be read aloud by the
witnesses will by then followed by the
notary public.

Here, the notary public did not read aloud; the
witness did not read aloud; it was Atty Rino read
who read the will aloud although all 4 had there own
copy and were following by reading silently

What did the SC say? Was there substantial
compliance?
Yes, even ordinary persons can see that the
purpose of the law has been achieved and
even more.
In 1
st
only 2 read. But in the version they
made, 5 people (including Atty Rino) read
the will to the testator. So the purpose of
the law which to prevent fraud has been
achieved. So no need to be technical about
the execution.

What should be contained in the attestation clause?
the number of pages used upon which the will is
written
the fact that the testator signed the will and every
page thereof, or caused some other person to write
his name, under his express direction, in the
presence of the instrumental witnesses,
Witnesses witnessed and signed the will and all the
pages thereof in the presence of the testator and of
one another.

1
st
requirement the number of pages

Should the number of pages be omitted in the attestation
clause would that be fatal?
Although the will is a formal instrument and the
formalities must be mandatory to comply with, the
law itself recognizes that in the absence of bad faith,
forgery, fraud, undue and improper pressure or
influence any defect in the language of the
attestation clause will not render the will invalid if it
is shown that there is substantial compliance with all
the requirement in Art 805.

2 twin requirements
1. Absence of bad faith etc. and
2. Showing that there was due
execution
Remember: If the will is comprised with 10 pages but in the
attestation clause the statement of the number of pages is
blank/absent the entire will is invalidated (not only the page
where the attestation clause appears).

Remember: Not just because the pages appeared to have
been signed by the testator and the witness is not guarantee
that the will is complete. That is a guarantee that all the
pages are authentic, but it does not preclude the possibility
that the will may be missing some pages.

When can we say that there is substantial compliance? When
do we say that the purpose of the law in requiring the number
of pages in attestation clause has also been otherwise
achieved? What is the acceptable evidence that there has
been substantial compliance with the law? How would the
will supply what was needed in the attestation clause?
If the will itself provides the answer. We should look
at the pagination appearing on the will.

How is it worded?
1
st
: If it is worded page one, page two, page
3 only this will not help.
2
nd
: But there are documents were the total
number of pages is also indicated i.e. page
one of three pages; page two of six pages.
If this is the way (2
nd
) the pagination of the
will is worded then you can rest easy and
allow the relaxation of the rule under Art
809, because the will itself provides the
answer as to how many pages comprise the
will.
You do not have to look beyond the will
itself. The 4 corners of the will provide you
with the answer.
If it is something that cannot be provided by
the will itself, by examining the will itself
then the imperfection would be fatal.

What kind of information required in the attestation clause
but not state therein can be considered as one which cannot
be provided by the will itself?

Remember that there are only 3 things required to be stated
in the attestation clause.
number of pages
fact that the testator subscribed or caused a 3
rd

person to subscribe the will in the presence of the
witnesses
fact that the witnesses attested to subscribe the will
in the presence of the testator and of one another

The 2
nd
and 3
rd
requirement, no matter what you do with the
will you really cannot determine the manner in which the will
was signed by the testator and the witnesses


27

CANEDA VS CA
Caballero died before the court could rule on the
probate of his will. After his death his relatives
appeared then they filed a separate proceedings for
settlement of the intestate estate of Caballero.
And the 2 proceedings were later on joined because
testacy is always preferred over intestacy. Before the
intestate proceedings will be allowed to prosper it
must first be determined whether or not the will
executed by Caballero was valid. Because if it was
then no need for intestate proceedings anymore.

There is a will already presented for probate by no
less than the testator. Any question regarding its
genuineness, authenticity and voluntariness are all
moot, because the testator himself ask for the
probate of his will.

The oppositors has only one option and that is to
question the compliance of formal requirements of
the law. And they found that opening. They found
that there are defects in the language of the
attestation clause.

What did the attestation say?
Focus on the last portion. That is where the
imperfection appear.

How is that imperfect for purposes of law of wills and
successions?
Documents did not contain that the
witnesses signed the document in the
presence of the testator and of one
another.

Although you can see that there was an attempt,
because in the last portion the use of the words
and in the presence of testator and of one another
this still pertain to the witnesses.

Siguro yung nagtype ng will sa pagmamadali nya
naomit nya yung portion that the testator signing in
the presence of the of the witnesses and the
witnesses signing in the presence of the testator. So
several words appeared to have been omitted.

Kaya kung babasahin nyo and if you would be strict
about it and he has signed the will and every pages
thereof in the presence of the said testator.
Why would the attestation clause say that, the
testator is signing in the presence of the said
testator? What does that indicate?
It indicates that which placed of the said
testator in the presence of each and all of
us was meant to refer to the witnesses.
Yun nga lang the word witnesses was
omitted as well as the phrase that should
have preceded that word witnesses the
testator signing in the presence of the
witnesses and the witnesses signing in the
presence of the testator and each one of
us.

3 to 5 words were missing and yet such the omission
spelled the difference, because the court was no
longer willing accept the will as valid because of this
imperfection and formulation of the attestation
clause.

What happens now to Art 809 which says that in the
absence of fraud forgery bad faith you can relax the
rule which is applicable in this case. Why is the SC
was unwilling to accept the will?

We cannot say that if the attestation clause is not
completely reflective of that fact we could removed
the possibility that signing was in deed done in the
presence of one another, because the attestation
clause was merely defective.

The only point is why was the SC not willing to be
liberal about it?
We should have specific guidelines.
We look to the words of Justice JBL Reyes.
We only relax or apply Art 809 if the
omission or defect can also be supplied by
the will itself. So it is in the pages.

In this case, the manner of execution, no matter
what you do with the will, can you tell who signed in
the presence of who, who signed first who follow?
No.

So if it an information the manner of signing that is
whether in the presence of one another cannot be
supplied by the will itself.
In fact that is the purpose of the attestation clause
since the will cannot provide you with that
information. It is the function of the attestation
clause to give you that information.

So there are twin requirements
no bad faith etc AND
proof of substantial compliance


28

We accept substantial compliance only if the
imperfection or omission can be corrected or supplied by
examination of the will itself.

Article 810. A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It is subject to
no other form, and may be made in or out of the Philippines, and need not
be witnessed.

What is a holographic will?
Will entirely written, dated and signed in the
handwriting of the testator.

Why did the law allow holographic will (It is quite a
contradiction to the need for guarantees to guard against
fraud. It can be easily be drawn up by any person)?
The probably recognizes that most people are wary
of lawyers (like in case of a dentist). Because of this
most people choose to die intestate. That is why the
law provided them with an easier way of expressing
their wishes.

Where can you make a holographic will? Is there any special
paper? Supposing you are imprisoned, no paper can write on
the wall?
Yes, because the only requirement of the law is that
it is entirely written signed and dated by the
handwriting of the testator. It does not matter
where it is written.

What happens if someone else has written in the will?
It depends. If made after the execution it will be
disregarded. It will be a mere surplusage. It cannot
affect the validity of the will.
However if the writing was simultaneous with that of
the testator. It will be void, because not entirely
written dated and signed by the testator.

Is the holographic will required to be witnessed? What
happens if there are witnesses?
It will not affect the validity of the will.

SEANGIO VS REYES
The holographic will was actually witnessed by 3
people and yet it would seem that the court took it
for granted that the court took them as mere
surplusage.

What about the requirement of a date? How should a date be
indicated?
Ordinarily it includes the date month and year. The
purpose here is to specify with accuracy when the
will was executed.

Why is it important to pinpoint the date when the will was
executed?
To determine if the testator was still of sound mind
when he made the will.

Remember that a Holographic Will is not witnessed. So unlike
Notarial Will which has at least 3 witnesses who can say that
Yes. We observed the testator when he was signing the will.
He appears to have full possession of his faculties. He appears
to be of sound mind.

While in a Holographic Will it is purely the act of the testator.
No is supposed to be around when he is executing his
Holographic Will. So your only basis that he was of sound
mind or not of unsound mind would be the date.

As to the need to pinpoint the day, the month and the year
this will not always be true because there are other ways by
which you can indicate the specific date when the will was
executed even though you did not specified the month and
the day.

Example:
Christmas day of 1995, 10
th
wedding anniversary,
Valentines Day 2009.

You cannot say worst day ever of 2006, 1
st

monthsary w/ the 3
rd
BF that is something that
cannot be readily calculated or determined by the
heirs.

ROXAS VS DE JESUS
The case captures how the Holographic Will is
readily made available. Last will written in a
notebook of Viviana.
The ground of the oppositors was that the will was
not properly dated (Feb. /61)

Was the will properly dated?
Objectively speaking that cannot be
considered as substantial compliance,
because Feb. /61 is too broad. This could
anywhere between 1 and 28.

What tilted scales here in favor of the
proponent of the will, the children
themselves were acknowledging that the
will was really is in the handwriting of their
mother.


29

LABRADOR VS CA
In this case there was no problem with the date
since it was complete w/ the day, month and year.
The problem was with the location of the date,
because ordinarily when you date a document or
informal letter, the date would appear at the top
usually at the right hand margin.
But this case the date was buried among the
provision of the so-called will.

Was the land subject of the Holographic Will? How?
The land. He gave the land to Sagrado.

Because Sagrado was the beneficiary of the land
under will he also brought an action to allow the sale
made by Melencio in favor of Jesus and Gaudencio.

The confusion here arose because the will in this
case was not a simple document. In fact, there was
even a discussion as to its true nature, because some
are written in Ilocano, some in English and it had an
appearance of a document relating to partition of
property.

It is said in 3
rd
paragraph, Melencio said that he was
leaving the fish farm to Sagrado and that is where
the date appeared.

He said at this time and date were the parties agreed
to a partition. But the thing is youre still alive and
you cannot effect a partition among your heirs just
like that. There are still other formal requirement.

So the most logical conclusion here is that this is a
Holographic Will and the intention is to live behind
this portion of land to Sagrado.

Was it properly dated?
The date here appeared in the paragraph.
They said that was not the date of the
document that is the date when the
partition is supposed to take effect.

The court said NO because it has no partition. So we
have to take this as the date of the Holographic Will.
That does not have to be in its usual place.

So what does that imply?
You need to take the context of the entire
instrument which was done in this case.
That is why the date was accepted.

SEANGIO VS REYES
The document in question was written in tagalog.

How was it denominated/entitled?
Kasulatan ng Pagaalis ng Mana

Alfredo, the one who was disinherited opposed.

If you will be strict about it you will not consider it as
a will but an expression of disinheritance.

In the law if you are going to disinherit it must be
contained in a will as just one of the provisions
therein.

In this case he went straight to disinheritance per se
because the title is Kasulatan ng pagalis ng mana. He
made a short cut straight to disiheritance.

Holographic Will are usually executed by the testator
without the assistance of counsel thats why this
should be liberally construed.

SC said if it is a case of Holographic Will we adopt
liberal construction that is why even though the
document is entitled Kasulatan sa pagalis ng mana,
we would accept that as a last will and testament
because it otherwise complies to the requirements
of Holographic Will.

Oppositors where saying that there was no
disposition there, but only disinheritance.

Disiheritance is in effect a disposition if favor of
those if favor of those who would be succeeding in
lieu of the disinherited heir.

WILLS8
Article 811. In the probate of a holographic will, it shall be necessary that at
least one witness who knows the handwriting and signature of the testator
explicitly declare that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such witnesses shall be
required.
In the absence of any competent witness referred to in the preceding
paragraph, and if the court deem it necessary, expert testimony may be
resorted to.

Toot toot,
toot toot
Kaninong
celfone un? Next
time it will be an
act of
volunteering


30

Does the rule contemplated in Art. 811 apply to all kinds of
probate?
No, it applies only to post-mortem probate and not
to ante mortem probate

Ante-mortem Probate- a probate that is brought during the
lifetime of the testator

Why does Art. 811 do not apply to Ante-Mortem probate?
Because the testator can make his testimony and his
testimony is the best proof of the authenticity of the
holographic will

What should be the qualifications of the witness who shall be
called upon to testify in the probate of the holographic will?
The witnesses must know the handwriting and
signature of the testator, otherwise the witness is
not qualified

Why does the law require that the witness should know not
only the handwriting but also the signature of the testator?
In holographic wills, the only guaranty of
authenticity will be the authorship of the testator
and the basis that it is indeed authored by the
testator only 2 things:
Handwriting
Signature

In most cases, signature is different from
handwriting. Usually a signature is more
abbreviated; there is no basis of correlating the
handwriting and the signature. There is no assurance
that the signature is in the handwriting of the
testator.

How many witnesses do we need for a probate of the
holographic will?
If the will is not contested - at least one witness
If the will is contested, at least three of such
witnesses shall be required.

The requirement of the production of 3 witnesses, is it
mandatory? In statutory construction, first, we construe using
the letters of the law, and then if there is doubt then we refer
to jurisprudence. How does the law worded?
It make use of the word shall which would imply to
be mandatory, however, we cannot also ignore the
last paragraph of Art. 811.

What does the last paragraph says?
In the absence of any competent witness referred to
in the preceding paragraph, and if the court deem it
necessary, expert testimony may be resorted to.
In Art. 811 we have a mandatory provision in the first
paragraph and a permissive provision which is the last
paragraph

AZAOLA VS SINGSON
Comment:
If the oppositors claim that the will was
procured by undue and improper pressure
and influence it means that they concede
that the handwriting and the signature are
authentic. There is no question of
authenticity but only a question of
voluntariness.
Ruling:
even if the authenticity of the holographic
will were contested, the provisions in Art.
811 cannot be interpreted as to require the
compulsory presentation of 3 witnesses to
identify the handwriting of the testator,
since no witness may have been present at
the execution of a holographic will. The
existence of witness possessing the
required qualification is a matter beyond
the control of the proponent. The point is
the difficulty of finding a witness to testify
regarding the due execution of a
holographic will in lieu of that fact that a
holographic will is not required to be
witnessed at all. And the Sc said that this is
not the intention of the law to suppress an
otherwise valid and authenticate will simply
because there is a difficulty in locating
witnesses who are familiar with the
handwriting and signature of the testator.

CODOY VS CALUGAY
Comment:
The visual appearance of the will itself
makes some doubts regarding its
authenticity and considering that the will
was executed in 1978 and the testator dies
on 1990, it is more than a decade.
In comparison with the Azaola case, there is
no doubt in the authenticity.
Ruling:
The ponente heart on the mandatory
nature of the requirement of the 3
witnesses. The ScC remanded the case to
the trial court for further reception of
evidence

Codoy case does not overrule the ruling in Azaola
case.

31

What happens if the holographic will is lost or destroyed?
If there is no other copy of the will then the will can
no longer be admitted for probate.

Does it the same in case of a Notarial will?
No

Why would the presence of the witnesses for a notarial will
allow even if such notarial will is lost or destroyed and should
be admitted to probate? Why is it that the law allows such
witnesses to prove the due and execution upon lost or
destroyed of a notarial will? If the holographic will is lost or
destroyed, its contents, due execution can longer be prove
and it can no longer be admitted for probate. But the same is
not true in Notarial will, because in Notarial will even if the
copy was lost or destroyed, its due execution can still be
proved and this stands for a fact that there are witnesses to
the execution of the notarial will, whereas there is none in
the holographic will. What is the basis or legal authority for
saying that we can actually have a notarial will otherwise its
been lost or destroyed, submitted for probate on the strength
of testimony of witnesses to effectuate its due execution?
If the notarial will is destroyed without the authority
of the testator, it may still be be admitted for
probate provided that its due execution, contents
and that fact of its unauthorized destruction are
proven in court through witnesses (Art. 830 par.3)

GAN VS YAP
The holographic will must be presented in court
because the document which contains the
handwriting and the signature of the testator which
is the only guaranty or basis of authenticity of a
holographic will. Such will can no longer be
submitted for probate unless there is a photostatic
copy of the will.

RODELAS VS ARANZA
If the holographic will has been lost or destroyed and
no other copy is available, the will cannot be
probated because the best and only evidence is the
handwriting of the testator in said will. It is
necessary that there be a comparison between
sample handwritten statements of the testator and
the handwritten will. But, a Photostatic copy of the
holographic will may be allowed because
comparison can be made with the standards writings
of the testator.
Article 812. In holographic wills, the dispositions of the testator written
below his signature must be dated and signed by him in order to make them
valid as testamentary dispositions. (n)
Article 813. When a number of dispositions appearing in a holographic will
are signed without being dated, and the last disposition has a signature and a
date, such date validates the dispositions preceding it, whatever be the time
of prior dispositions.

If there are dispositions after the signature of the testator
such disposition will be valid provided that the last
disposition is dated and signed. B t it is essential that prior
disposition appearing before the last disposition could at
least be signed. And the date appearing in the last disposition
would be the date of all prior signed but undated dispositions

Article 814. In case of any insertion, cancellation, erasure or alteration in a
holographic will, the testator must authenticate the same by his full
signature.

In a holographic will, the testator may change his mind in his
disposition of his property, suppose that the testator change
his mind, he would want to alter or modify his holographic
will, what should be complied with?
The testator must authenticate the same by his full
signature.

What is your Full signature?
Anything except mere initials; it does not necessarily
mean the testators full name; it rather means his
usual and customary signature; supposes full name
but excludes mere initials.

What happens if it is not authenticated by the full signature?
In case of insertion, when there is an insertion and it
was not authenticated by the full signature then
such insertion will not be given any effect, it will be
null and void, but the will itself will remain valid.
If it is a cancellation or erasure, the original text will
subsist as if there was no cancellation

If what is cancelled is an essential part of the will, then the
entire WILL will be rendered null and void.

Should the alteration affect the date or signature, the validity
of the whole will is affected

KALAW VS RELOVA
The SC cannot ignore the change of intent of the
testatrix. The cancellation of the words my sister
Rosa may be interpreted in 2 ways:
first- it is cancellation under Art. 814, and
such was not complied with
second- it may be considered as revocation
by cancellation of the will itself. Such
revocation need not be authenticated. In
this case, what was cancelled was an
essential part of the will.

32

Rules governing the formal validity of wills

If the testator is a Filipino, and the will is executed in the
Philippines; it formal validity is governed by the Civil Code

Article 815. When a Filipino is in a foreign country, he is authorized to make
a will in any of the forms established by the law of the country in which he
may be. Such will may be probated in the Philippines.

If the testator is a Filipino, and the will is executed in a foreign
country, then its formal validity is governed by either:
The law of the place where the will was made (lex
loci celebrationis)
By the Civil Code of the Philippines

Article 816. The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law of the place in
which he resides, or according to the formalities observed in his country, or
in conformity with those which this Code prescribes.

If the testator is an alien and the will was executed in the
Philippines, then its formal validity is governed either:
By the Civil code of the Philippines
By the law of his nationality or citizenship

Article 817. A will made in the Philippines by a citizen or subject of another
country, which is executed in accordance with the law of the country of
which he is a citizen or subject, and which might be proved and allowed by
the law of his own country, shall have the same effect as if executed
according to the laws of the Philippines.

If the testator is an alien and the will is executed in a foreign
country, then its formal validity is governed by:
By the law of the place where the will is made
By the law of his nationality or citizenship
By the law of the country where he resides
By the Civil Code of the Philippines

Article 818. Two or more persons cannot make a will jointly, or in the same
instrument, either for their reciprocal benefit or for the benefit of a third
person.
Article 819. Wills, prohibited by the preceding article, executed by Filipinos in
a foreign country shall not be valid in the Philippines, even though authorized
by the laws of the country where they may have been executed.

Joint will- one document executed by 2 testators. The
characteristic of a will of being purely personal is violated.

Is the above illustrated will is valid?
Yes, because that would be 2 wills appearing in one
page, they are made separate wills, not a joint one

Is the above illustrated will is valid?
No, it is a joint will

Reciprocal or mutual wills are valid as long as it is not made
jointly, even if the same witnesses are used.

Article 820. Any person of sound mind and of the age of eighteen years or
more, and not blind, deaf or dumb, and able to read and write, may be a
witness to the execution of a will mentioned in article 805 of this Code.
Article 821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a document,
perjury or false testimony.

Last will and testament of Jeff
Contents________________________________
________________________________________
_________________________
(Sgd) Jeff
Last will and testament of Suzanne
Contents________________________________
________________________________________
_________________________________
(Sgd) Suzanne
Last Will and Testament
We, the testators Jeff and Suzanne is
disposing________________________________
________________________________________
_________________

33

Who are qualified to be a witness of a notarial will?
Any person who is:
Of sound mind
At least 18 years of age or above
Must not be blind, deaf or dumb
Must be able to read and write
Must be domiciled in the Philippines
Must not have been convicted of falsification of a
document, perjury or false testimony

Article 822. If the witnesses attesting the execution of a will are competent
at the time of attesting, their becoming subsequently incompetent shall not
prevent the allowance of the will.

When should these qualifications exist?
At the time of the execution of the will

What is the effect of lost of any of those qualifications after
the execution of the will?
It will for affect the validity of the will

Article 823. If a person attests the execution of a will, to whom or to whose
spouse, or parent, or child, a devise or legacy is given by such will, such
devise or legacy shall, so far only as concerns such person, or spouse, or
parent, or child of such person, or any one claiming under such person or
spouse, or parent, or child, be void, unless there are three other competent
witnesses to such will. However, such person so attesting shall be admitted
as a witness as if such devise or legacy had not been made or given.

Can a devisee or legatee act as a witness in a last will and
testament?
Yes, provided that there are other 3 competent
witnesses.

The fact that they are devisee or legatee, it only has an effect
to their capacity to receive under the will but it has no effect
at all of the capacity to act as witnesses. This qualification is
not only consigned with the witnesses themselves, it also
applies to the spouse, parents or children if named as a
devisee or legatee.

Purpose of the law for this requirement?
To bar against any fraud or undue and improper
influence

The law does not make mention of the heirs, will this
qualification apply to the heirs?
Yes, because the qualification is made to apply to all
persons who are receiving under the will

Article 824. A mere charge on the estate of the testator for the payment of
debts due at the time of the testator's death does not prevent his creditors
from being competent witnesses to his will.

Can a creditor be disqualified, if the testators estate was
charge of a debt in favor of the creditor?
No, because a creditor is not an heir, he is entitled
because unlike an heir, legatee or devisee they are
receiving because of the liberality of the testator but
in the case of a creditor, he is receiving because of
obligation of the testator

GONZALES VS CA
The rule is that, the instrumental witnesses in order
to be competent must be shown to have all the
qualifications and none of the disqualifications
provided by law; and there is no need for a further
proof of their good reputation or good standing in
the community because these are presumed.

WILLS9

Article 825. A codicil is supplement or addition to a will, made after the
execution of a will and annexed to be taken as a part thereof, by which
disposition made in the original will is explained, added to, or altered.

What is a codicil?
A codicil is a supplement or addition to a will, made
after the execution of a will and annexed to be taken
as a part thereof, by which any disposition made in
the original will is explained, added to, or altered.

By its nature a codicil is executed subsequent to. It
presupposes that a prior will is existing.

Can we have a codicil which is prior to a void will?
Yes, it is not necessary that the prior will is a valid
will.

Article 826. In order that a codicil may be effective, it shall be executed as in
the case of a will.

A codicil must be in the same form of a last will and
testament. A codicil may either be notarial or holographic.

How do we distinguish a codicil from a will?
If a document cannot stand on its own it is a codicil,
but if it can independently stand on its own it is a
will. And this is true when there are certain
dispositions independent from the prior will.

The thing is there is also a subsequent will which also refers
to a prior will. A subsequent will can also perform the
functions of a codicil.


34

Should there be a consistency between the form of our will
and the form of the codicil with reference from the will?
No, we can a have a notarial codicil with reference to
a holographic will or we can have a holographic
codicil with reference to a notarial will.

A codicil will form part as parcel of the prior will
Article 827. If a will, executed as required by this Code, incorporates into
itself by reference any document or paper, such document or paper shall not
be considered a part of the will unless the following requisites are present:
(1) The document or paper referred to in the will must be in
existence at the time of the execution of the will;
(2) The will must clearly describe and identify the same, stating
among other things the number of pages thereof;
(3) It must be identified by clear and satisfactory proof as the
document or paper referred to therein; and
(4) It must be signed by the testator and the witnesses on each and
every page, except in case of voluminous books of account or
inventories.

Is there an exception to the rule that any document that can
be taken as part of the will should always be in the form of a
last will and testament?
Yes, Doctrine of Incorporation by reference. Such
document which is incorporated by reference is not
a codicil because the law requires that such
document must be inexistence at the time of the
execution of the will as compare to a codicil which is
executed subsequently to a prior will.

What are the requisites of the Doctrine of Incorporation by
reference?
The document referred to in the will must be in
existence at the time of the execution of the will
The will must be clearly describe and identify the
same, stating among other things the number of
pages thereof
It must be identified by clear and satisfactory proof
as the document referred to therein
It must be signed by the testator and the witnesses
on each and every page, except in case of
voluminous books of accounts or inventories

From the requirements, how many must be found in the will
itself?
Clear reference to the document in the will
The document must be clearly identified in the will
The number of pages thereof should also be
indicated

Outside of the will, we are required to have sufficient proof
identifying the document as that referred to and describe in
the will. What such proof would be is the signature of
testator and the witnesses affix on each and every page of
the document except if the document happens to be
voluminous.

Example:
Inventories
A person wants to disinherit a grandchild who has
been maligning her thru text messages or emails
etc In her will, there is a provision for
disinheritance and the testatrix wants to be assured
that her charges will be sufficiently proven, so she
incorporate by reference the print outs of the email
and text messages sent to her by her grandchild who
is maligning her.

Remember: a document incorporated by reference is
different from a codicil. In codicil, it does not matter even if
inconsistent in form from the will, thats why we are allowed
to have a notarial codicil with reference to a holographic will.
The codicil is subsequent to will but in a document
incorporated by reference, the incorporation is done
simultaneously with the execution of the will. In holographic
wills, it must entirely written, dated and signed by the
testator.

Can we also incorporate an extrinsic document in a
holographic will under the doctrine of incorporation by
reference?
No, because the requisite for the doctrine of
incorporation by reference to apply that the extrinsic
document should be signed by the testator and
witnesses. The requirement itself presupposes or
assumes that there are witnesses to the execution of
the will, which will us into the conclusion that the
legislators intendedly made it to apply solely to a
notarial will.

Article 828. A will may be revoked by the testator at any time before his
death. Any waiver or restriction of this right is void.

What do we mean by ambulatory?
It is revocable at any time for any reason or for no
reason at all

Can a testator provide in his will that his will is irrevocable?
No, because one of the characteristics of a will is
ambulatory and voluntary character of the last will
and testament

This characteristic of a last will and testament, can it be
bargain away or disposed of by the testator even if he is given
sufficient consideration?

35

No, because of the nature of a last will and
testament, if the testator is prevented from doing
so, it will violate the ambulatory nature of a last will
and testament.

The testator can revoked a will at any time and for any reason
or even for no reason at all because a Will will not be
operative until the death of the testator, In fact, when we
revoke a will we put an end to or terminate is its potential
existence.

What is revocation?
The act of the mind terminating the potential
capacity of the will to operate at the death of the
testator, manifested by some outward and visible
act or sign by the testator.

Article 829. A revocation done outside the Philippines, by a person who does
not have his domicile in this country, is valid when it is done according to the
law of the place where the will was made, or according to the law of the
place in which the testator had his domicile at the time; and if the revocation
takes place in this country, when it is in accordance with the provisions of
this Code.

What law governs revocation?
Qualify as to the person revoking and to the place
where it is revoked.
The law that will govern the revocation is made and
secondarily, on whether the person revoking is
domiciled in the Philippines or not.
If the revocation is made in the Philippines,
the provisions of the Civil Code will control
regardless of who is the testator or where
the will is executed.
If the revocation is made outside of the
Philippines then a distinction is to be made
whether the person is domiciled in the
Philippines or not.
o If domiciled in the Philippines,
the provisions of the Civil
Code will govern he
revocation or
in accordance with Art.
17 (lex loci celebrationis),
the law of the place
where the revocation is
made
o But if the testator is domiciled
abroad, then he is given the
discretion to revoke the will either
in accordance with the
law of the place where
the will was made or
in accordance with the
law of the place in which
the testator had his
domicile at that time

What must be present when a testator revokes a will? Is there
any need for testamentary capacity to be present?
Yes, but not in all instances. Testamentary capacity
and animus revocandi is immaterial in a revocation
by implication of law.
Article 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case
of wills; or
(3) By burning, tearing, cancelling, or obliterating the will with the
intention of revoking it, by the testator himself, or by some other
person in his presence, and by his express direction. If burned,
torn, cancelled, or obliterated by some other person, without the
express direction of the testator, the will may still be established,
and the estate distributed in accordance therewith, if its contents,
and due execution, and the fact of its unauthorized destruction,
cancellation, or obliteration are established according to the Rules
of Court.

What are the different ways in revoking a will?
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as
provided in case of wills; or
(3) By burning, tearing, cancelling, or obliterating the
will with the intention of revoking it, by the testator
himself, or by some other person in his presence,
and by his express direction. If burned, torn,
cancelled, or obliterated by some other person,
without the express direction of the testator, the will
may still be established, and the estate distributed in
accordance therewith, if its contents, and due
execution, and the fact of its unauthorized
destruction, cancellation, or obliteration are
established according to the Rules of Court.

Revocation by implication of law
In this kind of revocation, testamentary capacity and
animus revocandi is immaterial. In fact, this kind of
revocation takes place independently on the will of
the testator

Why would there be a revocation by implication of law in case
of preterition?
There would be a revocation of a will by implication
of law in case of preterition if the heir instituted
would no longer be entitled to received, this
development amounts to revocation of the
inheritance in his favor. Only the revocation is not
done by the testator himself but it is done by law.

36

Why is it the law carrying out such revocation?
The law put into effect a revocation by implication of
law because it recognizes the change in the
circumstances of the testator. In preterition, we
assume that the omission is unintentional.

Guilty spouse in a Legal Separation
Art. 63, par. 4 Family Code

Any disposition in favor of the guilty spouse is deemed revoke
by operation of law. The law presumes that the development
has taken place between spouses for example the wife has
another man not his husband, the law presumes that the
testator would no longer want her to benefit from his estate,
so that even if he does not disinherit the guilty spouse, the
law itself disqualifies any disposition in favor of the guilty
spouse deemed revoked by operation of law, a recognition of
the circumstances

Commission by an heir, devisee or legatee of an act of
unworthiness

Subsequent adoption of the legatees by the testator annuls
the distribution in the will

The alteration, alienation or loss of things given as a legacy or
devise after the execution of the will

Revocation by subsequent will, codicil or writing: requisites:
The testator must have the capacity to revoke
The revoking will must be a valid will
The revoking will must contain a revocatory clause
or the disposition must be incompatible with the
prior will
The revoking will must be admitted to probate

If we are revoking thru a subsequent will or codicil, to what
extent can the revocation be effected?
Either partially or totally
Partial revocation- the will in its entirety is not being
revoked only a portions thereof, so that part of the
prior will may still subsist and given effect
Total revocation- the will in its entirely will no longer
be given effect

Manner of revocation
Express- revocatory clause
Implied- not favored; whenever we have
inconsistent provision in a will or in several wills, our
goal is always to try to give effect to all of the
provisions, we try to harmonize. Only when the
provisions can no longer reconcile, that is the time
we can say that there is revocation by implication

If the revocation is implied, is it possible to have a partial or
total revocation?
Yes, if the will only contain a single disposition

Example:
im giving the sole ownership of my entire estate to A
prior will
im giving the sole ownership of my entire estate to B
subsequent will

The example given is an example of total revocation because
both dispositions cannot be reconciled

Example:
Im giving my house and lot and my racing horse named the
lucky one to A prior will
Im giving and sole ownership of my racing horse named the
lucky one to B subsequent will

The example given is only a partial revocation because the 2
dispositions can be reconciled

Supposing in a subsequent will, where the inconsistent
provision is found or where the revocatory clause is found was
not admitted to probate, what happens to the revocatory
clause or in the inconsistent dispositions?
There will no valid revocation, because that is the
requirement of the law. Since it is a formal
instrument, non-compliance with the requisites
means there is no valid will or codicil.

Revocation thru Physical destruction: requisites:
Testamentary capacity
Animus revocandi
Actual physical destruction

Is it required that the testator should be the one to carry out
the physical destruction?
No, the testator can act thru an agent provided that
the agent was authorize by the testator and the
destruction was done in the presence of the testator

What kind of revocation can be effected thru physical
destruction in terms of extent?
Depends on how practical it is to effect a partial
revocation thru physical destruction. In burning, if
the testator wanted to burn only certain
dispositions, he might burn the entire document, so
for burning for practical consideration we are limited
to total revocation.

37

Burning
Setting the will on fire, we dont have to burn the
entire will as long as there is a proof of burning is
sufficient.

Tearing
Cutting or Reaping it into pieces

Obliterating
May be the same as cancelling although obliterating
indicates a more intensive way of cancelling, there is
blotting out of the portions.

What would be the extent of the destruction?
The extent really does not matter for as long as it is
consistent with manifested animus revocandi.

The problem arises if there is some kind of desistance on the
part of the testator before there is a complete destruction of
the document.. What if in the middle of destruction, the
testator desist, what will happen?
2 phases of destruction
Objective phase
Subjective phase

What should pass the subjective phase? How should it pass
the subjective phase?
When there is nothing left for the testator to do, it is
already in the subjective phase

Here, we are not equating completeness of the act with
completeness of the destruction. It is possible that we dont
have a complete destruction and yet we already have a valid
revocation.

E.G. A father tore his will in front of his daughter, if after
tearing into 2 halves, he was about to tear it into 4 parts, he
desisted because the daughter ask for forgiveness.

In this example, there is no doubt that the will is indeed
physically destroyed, as we apply our discussion, the act done
by the testator tells us that there is revocation but this time
around we can that there is no really revocation; there can
still be a valid desistance to prevent a revocation. We can
incur from the acts of the father in beginning to tear it again
that as to it, with regard to him (father) the physical
destruction was not yet complete, the intention of the father,
in his mind, (remember: revocation is an act of the mind) it
(Will) will be revoked after he had tore it into so many pieces.
He visualizes, let say, 32 pieces; but when he is about to tear
it into 4 parts, he desisted, so that means he desisted before
revocation is complete in his mind in accordance with his
intention.
But if the example is in this manner, that the father tore the
will in 2 and throws it away into the waste basket and then
gets out of the room, then he misses his daughter and reaps
the pieces from the waste basket, can there be a valid
desistance? Not anymore, because the moment he threw a
will into a waste basket and left the room it implies that to
him (father) the revocation was already complete. Even if the
father cut the will at the tip and throws it away the
revocation is complete. We have to consider the
circumstances.

The problem is in revocation by physical destruction, we do
not have proof.

If the testator is revoking his prior will that means he is being
moved by a very grave reason. There is a change of mind,
there might be anger, disappointment etc. if that is the
situation that he found himself in, would the testator gather
his relatives around and revoke it in front of them? No, most
likely the revocation is done secretly.

How do we prove revocation knowing that there are no
witnesses, no proof because the law does not require thats
why the Supreme Court has said that some kind of
presumption must be made.

GAGO VS MAMUYAC
What is the presumption that we must make regarding
revocation?
If before the death of the testator the will was
known to be in his possession or at least he has
access to the will and then after his death the will
can no longer be located despite by the efforts
exerted, then we are forced to presume that the will
has been destroyed and it was the testator who
destroyed the will. The court said that this was this
so, because the law itself does not require that proof
of the revocation be preserved.

Situation: 3 copies of the will, one with the testator, one with
the spouse and one with the family lawyer. The testator
destroyed his copy, there is animus revocandi and physical
destruction therefore the will is revoke.

What about the copies with the spouse and the family
lawyer?
It is also revoked because the testator needs not to
recall all the copies from his spouse and family
lawyer, it is enough for us to presume that the
testator revoked his will by physical destruction if
the copy in his possession or a copy he had access to
can no longer be located. If the spouse and the

38

family lawyer wanted to prove the disprove
revocation then the burden is upon them.

If the testator would not able to destroy the will because of
the interference of another person, would there be a
revocation?
None, because there should be physical destruction.

Conversely, even if the will has been totally destroyed but it
was not destroyed by the testator himself or he did not intend
to revoke it by physical destruction, what happens to the will?
it is not revoked, it remains valid

But what if that it is the only copy of the will?
It depends, if it is a holographic will, then the will can
no longer be probated because there can be no
other proof of its authenticity and due execution,
but if it is a notarial will, the will can still be probated
but there should be a proof of due execution, the
contents of the will and the fact of its unauthorized
destruction.

When it comes to revocation by physical destruction, it is
possible that the destruction may be carried out by a third
person for the testator. What are the requirements?
That the testator authorized such third person
the destruction was done in his presence

If such requirements are not met then there is no valid
revocation.

MALOTO VS COURT OF APPEALS
Revocation by physical destruction, it is possible that
the destruction may be carried out by a third person
for the testator it is required that the testator
authorized such third person and the destruction
was done in his presence.
It is essential that in revocation by physical
destruction there must be animus revocandi and
physical act of destruction, absence of one there will
be no valid revocation.

What is the doctrine of Dependent Relative Revocation?
The law recognizes that it is possible that the
testator does not want to die intestate at all cost. So
that should he even revoked a prior will, the
revocation may be made dependent upon the
efficacy of a subsequent will. But we do not make an
inference that it is such an intention.

E.G
Mr. Valdez made a will on the age of 22, because he
has a feeling that he would become a big time
lawyer one day. And he wants to be assured that his
heirs will be given a share, let say the heirs will be all
of his classmates in 3-A. now then, tine had passed,
Mr. Valdez thought now that his last will and
testament when he was 22 years of age does not
reflect of his current state of mind. So he decide to
revoke his last will and testament, but he said just
incase he will have a new last will and testament
that will not be effective then he would rather have
to have his last will and testament when he was 22
years old (he will settle for his first will instead of
nothing). So meaning that the revocation that he is
making is not absolute in the sense that he wants to
make it dependent on the efficacy of a subsequent
will, it is conditional. Why is it conditional? Because
he does not want to without a will at all cost.

When do we apply the doctrine?
For the doctrine to apply, we cannot have just 2
wills, we cannot have our revoking will and our
replacing will in the same document because if the
subsequent will at the same time it is also your
replacement will was not admitted for probate,
there is no doubt that the prior will subsist, it will
not be considered revoked. But not because of the
application of the doctrine, but simply because of
non-compliance of the requisite of revocation by a
subsequent will.
Our revoking will should be that a revoking will and
then we have a third will and our third will is the
replacement will which will replace the prior will. So
that if in the future, this 3
rd
will does not pass
probate then we can by applying the doctrine of
dependent relative revocation says that the prior will
which has been previously revoked should be
restated to validity because the revocation was
dependent from the efficacy of our 3
rd
will, it is only
conditional.


39

The Doctrine will be confusing if the revocation is not
EXPRESSLY done but thru PHYSICAL DESTRUCTION. It will not
be confusing if there is an express intention of the testator to
make the revocation depend on the efficacy of the
subsequent will intended to replace a prior will.

If the situation is there is PHYSICAL DESTRUCTION WITH NO
MANIFEST INTENT, then we will refer to the case of MOLO vs
MOLO.

Prior Will /First
Will
Revoked
Revoking will
which contains
an EXPRESS
INTENTION that
the testator is
revoking the
Prior Will, but
with an intention
to make a new
and subsequent
will that will
replace a prior
will. So that if
the subsequent
will does not
pass probate or
does not
become
effective, then
the prior will
should be
considered as
not revoked

Replacement will
/ Subsequent
will/third will

40

WILLS10

Under this doctrine a revocation of a will not be given any
effect if there is a present intention on the part of the
testator to make that revocation contingent upon the
effectivity of a subsequent will.

Stripping all the legal doctrines, it boils down to a conditional
revocation.

And what is the condition?
The intention to make the revocation dependent
upon the effectivity of a subsequent will.

The problem is, it is not always clear when is that intention is
present. It is not as though the testator will have always the
opportunity to announce what is intention is, can be it
revoking.

In Molo vs Molo. The revocation was done thru physical
means, the interval between the first will and second will is
20 years apart. The revoking will was denied probate, by all
indication the first will should have subsisted. However, there
was an insinuation that the original copy of the first will was
destroyed by the testator. It indicated that the revocation is
supposed to have taken place thru another means other than
by the execution of a subsequent will. It is thru physical
destruction. The original copy cannot be located. What was
presented in probate was a carbon copy of the original. We
had a presumption that if the testator have access or
possession of the will and cannot be located after his death,
we presume that he had revoked it. But the doctrine of
relative revocation is applicable because the SC cited the fact
that the 2 wills name the same beneficiary. The 2 wills are
basically the same. And the SC also said that had it been the
intention of the testator to absolutely revoke his first will
then he should have also recovered the carbon copy in the
possession of his wife. The mere fact that he did not do so
means that he was still trying to ensure that he would die
testate or with a valid will. Just in case his subsequent will
and testament will not be admitted to probate.

Article 834. The recognition of an illegitimate child does not lose its legal
effect, even though the will wherein it was made should be revoked.

The recognition of an illegitimate child does not lose its legal
effect even though the will wherein it was made should be
revoked because recognition is not a testamentary
disposition and hence it takes effect upon the execution of
the will and not upon the death of the testator. This rule
however, is not applicable where the will is refused probate
on the ground of vitiation of consent, since in that case there
would be no valid recognition.

Furthermore, even if the will has been revoked, the
instrument within the meaning of Article 278 of the Civil
Code- which states that recognition of natural children shall
be made in the record of birth, or in a will, or in a statement
before a court record, or in an authentic writing.

Article 835. The testator cannot republish, without reproducing in a
subsequent will, the dispositions contained in a previous one which is void as
to its form.

Article 836. The execution of a codicil referring to a previous will has the
effect of republishing the will as modified by the codicil.

Republication- the method by which the testator restores to
validity, as his will, an instrument formerly executed by him
as his will thereafter revoked or gives validity to an
instrument originally invalid for want of proper execution.
Restoring a will to validity.

Republication
Express
o Re-execution
Implied
o Constructive
o Reference

If the will, however, has been previously revoked but valid as
to form, or void because of some other cause, it may be
republished through execution of a codicil containing
sufficient reference to a prior will.

Republication by reference- the execution of a codicil
referring to a previous will has the effect of republishing the
will as modified by the codicil as of the date of the
republishing codicil.

It is express republication, if the testator reproduces in a
subsequent will, then dispositions contained in a previous will
which is void as to its form. (art. 835)

It is constructive republication, if the testator for some
reason or another executes a codicil to his will. (art. 836)

Under Art. 836, intrinsic defect of the will are cured by mere
referral to the codicil.

How do we restore a will?
By reference
By republication of the entire will in a new will or
codicil

General Rule: it is enough that we make reference to the will.
Exception: However if the prior will is suffering from

41

infirmities as to form, then we have no option but to
republish the same in a codicil or a subsequent will.

Republication would mean re-execution of the will which is
null and void as to form.

Article 837. If after making a will, the testator makes a second will expressly
revoking the first, the revocation of the second will does not revive the first
will, which can be revived only by another will or codicil.

Revival- the restoration to validity by operation of law of a
will previously revoked. There are 3 wills in revival

If a first will is expressly revoked by a second will, the
revocation of the second will does not revive the first will
and, the first will can only be revived by the execution of
another will or codicil, in other words, by republication, either
expressly or impliedly

If a first will is impliedly revoked by a second will, the
revocation of the second Will does revive the first will
because on the fact that the execution of a second will which
does not expressly revoke the first will but merely contains
inconsistent provisions, will only be considered a revocation
of the prior will when the testator dies because the intent to
revoke being purely testamentary in character can have no
effect until the death of the testator.

Why is that so?
According to Senator Tolentino, if there is a
provision of express revocation in a last will and
testament that provision of express revocation is
given an instantaneous effect. There is no need for
the will to be admitted to probate. On the theory
that the revocatory clause is not a disposition, that
will only take effect upon the death of the testator.
So that if there is a revocatory clause, it is
immediately given effect.

But there is a problem, what happens now with the
requirement of that law which says to constitute a valid
revocation thru a subsequent will or codicil, the revoking will
must be admitted to probate

The only thing that we can reconcile that requirement with
the instantaneous effect given to the revocatory clause would
be the admission to probate or non-admission to probate
would be some kind of a resolutory condition.
Article 838. No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having
jurisdiction for the allowance of his will. In such case, the pertinent
provisions of the Rules of Court for the allowance of wills after the testator's
a death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be
necessary for the allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the
lifetime of the testator or after his death, shall be conclusive as to its due
execution.

What is probate?
It is a proceeding in rem for the purpose of
establishing the due execution or authenticity of a

Is probate mandatory?
Yes, it cannot be dispense with by the heirs of the
decedent because this is the final safeguard that is
provided for by law to see to it that the wishes of the
testator are not suppressed. Even if the heirs agreed
that they will partition the estate among themselves,
they cannot do so until they present the will to
probate.

How many kinds of probate do we have?
2 kinds
o Post-mortem- made after death
o Ante-mortem- it allows the testator to
petition to the court to allow to probate his
own last will and testament

What is the participation of the testator in a post-mortem
probate?
None, because he is already dead.

In ante-mortem probate- There can be no other better
witness regarding the authenticity or due execution of the
last will and testament that the testator himself

Which court has jurisdiction over a petition for probate?
Regional trial court for being a court of general
jurisdiction

With regard to venue?
Last place of residence of the testator

What if he is not a resident prior to his death?
It shall be the place where his property is located

A probate is a proceeding with limited jurisdiction, there only
certain things that can be pass upon by the probate court. It
can only pass upon the issues relating to the extrinsic validity
of the last will and testament.


42

What happens if any issue relating to ownership of the
property or in the estate is made, can the probate court make
an exception of the rule?
No, it is outside of its jurisdiction

What is the effect if a will was not admitted to probate?
The will will not have any effect. If the testator
executed only one will, then it will be considered
that he had died intestate.

How many wills can be submitted to probate?
As many as the testator may have set excluding
those which had been expressly revoked because of
the instantaneous effect we give to the revocatory
clause.
Article 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of
making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the influence
of fear, or threats;
(4) If it was procured by undue and improper pressure and influence,
on the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing his
signature thereto.

Undue influence- is some kind of an emotional black mail but
without an intimidation, duress or force.

Supposing that the will is admitted to probate, what will be
the effect of such admission to probate?
The judgment admitting it to probate attains finality
if there is no appeal taken then the judgment will be
conclusive with regard to its due execution and
authencity.

Due execution- voluntariness
Authenticity- negates any possibility of fraud

Cases

GUEVARRA VS GUEVARRA
There is an action for recovery of her legitime as an
acknowledge natural child and her evidence was the
last will and testament. The problem with her theory
is her cause of action is premised on her application
of the law on intestate succession and her proof is
the last will and testament of the testator which
would have been triggered testamentary succession.
So there is a disconnect between her cause of action
and her proof, her proof establishes a very grave
omission on her part, she did not present the will for
probate. She made a selective use of the last will and
testament. The SC says that her theory is untenable
because she is circumventing the law, she cannot
present the last will and testament for the purposes
of proving her conclusion and at the same time
suppressing it by not presenting it for probate.

She was also invoking the rules of court that there
was an implication that even there is a last will and
testament; it is possible for the heirs to just settle
among themselves provided that the conditions are
satisfied. But the Sc said, she cannot invoke such
provision in the rules of court because probate is
mandatory, probate cannot be dispense with.

Probate is mandatory and its allowance by the court
is essential and indispensable to its efficacy

DELA CERNA VS POTOT
In this case we have a joint will, a joint will under
Philippine law is null and void. However, when it was
submitted for probate prior the death of the
husband who is one of the parties in the joint will by
some kind of miracle such joint will was submitted to
probate. The intestate heirs of the husband did not
appeal from the judgment allowing the last will and
testament of the husband to probate.

When the wife died, they (intestate heirs of the
husband) thought that they had another opportunity
to attack the validity of the will in so far as the
husband was concerned because there was another
probate proceeding and the reason why there is
another probate proceeding because the first
probate was instituted in 1939 prior to the
effectivity of the New Civil Code and prior to the
introduction of the concept of ante-mortem
probate.

There is no question that the judgment annulling the
last will and testament of the husband is wrong. But
even there is an error of law in the judgment, it can
longer be questioned that judgment if the same
attained finality. Even if the judgment allowing the
will for probate is erroneous and attained finality
then for all intent and purposes, the due execution,
validity, authenticity or voluntariness of the last will
and testament it is established beyond reproached,
it can longer be questioned.

In this case, although the intestate heirs of the
husband would have wanted to overturn the decree

43

of probate, they were no longer allow to do so by
the court.

The final decree decree of probate of 1939 has
conclusive effect as to his last will and testament,
despite the fact that even then the civil code already
decreed the invalidity of joint wills

GALLANOSA VS ARCANGEL
Florentino left a will were he named his wife Tecla as
his heir but he provide that if Tecla predeceased him
then the share of the estate would go to his son.

The will was submitted for probate and Leon did not
appeal.

7 years after they file an action for recovery alleging
the ownership of the 61 parcels of land such action
was denied.

17 years after when the will was admitted to
probate, they filed a new action for annulment of
the last will and testament on the ground that there
was undue influence but there is no such thing as
annulment of a last will and testament. It is either
the will is valid and be admitted to probate or it is
invalid and should not be admitted to probate.

The decree of probate is conclusive as the due
execution or the formal validity of the will, the issue
of voluntariness cannot be questioned anymore.

Under the submission for probate the court can only pass
upon the extrinsic validity, the court cannot pass upon the
intrinsic validity but there is an exception as discuss in the
case of nepomuceno vs ca

NEPOMUCENO VS CA
Martin Jugo made a last will and testament. In such
last will and testament, he rightfully acknowledge his
wife Rufina and their 2 children. However, Martin
also declared that he and his wife is separated and
he had another wife (paramour) named Sofia. In the
will she made Sofia as her executrix.

Sofia submitted the will to probate and generally
what would have the court passed upon is the
extrinsic validity of the will.

The SC declared the provision in favor of Sofia was
null and void in accordance with article 739

Given the general rule, the court is not powerless to
do what the situation contrains it to do and pass
upon certain provisions of the will. Where practical
considerations demand that the intrinsic validity of
the will be passed upon, even before it is probated
the court should meet the issue. Since the intrinsic
invalidity is apparent on the face of the will, the SC
declared that the disposition in favor of Sofia is null
and void.

Institution of Heirs

Article 840. Institution of heir is an act by virtue of which a testator
designates in his will the person or persons who are to succeed him in his
property and transmissible rights and obligations.

What is an act of instituting an heir?
The institution of heir is an act whereby the testator
name a person or persons who shall succeed to his
properties and his transmissible rights and
obligations.
Article 843. The testator shall designate the heir by his name and surname,
and when there are two persons having the same names, he shall indicate
some circumstance by which the instituted heir may be known.
Even though the testator may have omitted the name of the heir, should he
designate him in such manner that there can be no doubt as to who has been
instituted, the institution shall be valid.

How do we institute an heir?
The most ideal way is to give the complete name of
the person. First name and surname. If possible also
give the middle initial.
Article 844. An error in the name, surname, or circumstances of the heir shall
not vitiate the institution when it is possible, in any other manner, to know
with certainty the person instituted.
If among persons having the same names and surnames, there is a similarity
of circumstances in such a way that, even with the use of other proof, the
person instituted cannot be identified, none of them shall be an heir.

But supposing the testator failed to do so, supposing the
testator only made use of the nickname of the person Im
giving to baby, boy, june. Would that mean that the
institution would be invalid?
Not necessarily, if there can be some other
circumstance. Remember the discussion on latent
ambiguity. We can still make use of extrinsic
evidence excluding oral testimony of a person.

If the testator would name a certain Madeline Montesa as his
heir, and it turned out that there is 2 Madeline Montesa, one
is a close friend and the other is a sworn enemy. Do we annul

44

the institution on the ground that we cannot determine on
which of the two is the intended heir?
No, we can consider the extrinsic evidence among
those women will inherit. Of course in that case it is
the close friend.

Let say the testator gives his house and lot to his cousin Jerry,
the problem is he has 2 cousins named Jerry. There is no
other circumstance that we can determine the intention of
the testator, then we will be force to annul the institution
because there is no other circumstance by which we can
determine who is the intended heir.

There is no need, although this is ideal, to name with a
specific details the heir intended by the testator. We cannot
annul the institution on the ground alone that he is not
named by his full name, if there is some other circumstance
that will allow us to determine his identity.

Although this topic is about institution of heirs, we should
also apply this to devisees and legatees on the premise that
just like heirs, they receive under the last will and testament
executed by the testator.

Article 846. Heirs instituted without designation of shares shall inherit in
equal parts.

Article 848. If the testator should institute his brothers and sisters, and he
has some of full blood and others of half blood, the inheritance shall be
distributed equally unless a different intention appears.

How many heirs can the testator can institute?
There is no specific number, the testator can
institute 1, he can institute more 1.

But if he institute more than one, what is the presumption
regarding there sharing?
The presumption is they are to take equally, and
such presumption even applies to the institution of
siblings both full blood and half blood.

This is what differs testate succession from intestate
succession. In intestate succession, the siblings of the half
blood will inherit together with the siblings of the full blood,
but under the law of intestate succession, the siblings of the
full blood will take as twice as much as the siblings of the
half-blood. However this will not apply in testate succession.

Example: Ms. Montesa is a sister of the full blood of Ms.
Aguirre and Mr. Flojo is a brother of a half blood of Ms.
Aguirre. Ms. Aguirre instituted them under her last will and
testament, then the shares of Ms. Montesa and Mr. Flojo
would be the same. It will be equal unless the testatrix
otherwise provides.

Article 847. When the testator institutes some heirs individually and others
collectively as when he says, "I designate as my heirs A and B, and the
children of C," those collectively designated shall be considered as
individually instituted, unless it clearly appears that the intention of the
testator was otherwise.

What if some of the heirs are instituted individually and some
are collectively? How do we treat those collectively instituted?
We treat them as also individually instituted.

Example: I hereby give my estate to A, B, and Children of C
namely D, E, F and G

X - testator
A Heir
B Heir
Children of C heirs
D
E
F
G

Shares:
A 1/6
B 1/6
D 1/6
E 1/6
F 1/6
G 1/6

Article 849. When the testator calls to the succession a person and his
children they are all deemed to have been instituted simultaneously and not
successively.

Supposing the people instituted is C and his Children. The
children of C are D, E and F. how are they going to succeed to
the estate? In the natural course of thing, parents died ahead
of their children. Are they to succeed successively?
No, the presumption is they are intended to succeed
simultaneously. So C together with his children will
be succeeding will be succeeding to the inheritance
upon the death of the testator.
Article 841. A will shall be valid even though it should not contain an
institution of an heir, or such institution should not comprise the entire
estate, and even though the person so instituted should not accept the
inheritance or should be incapacitated to succeed.
In such cases the testamentary dispositions made in accordance with law
shall be complied with and the remainder of the estate shall pass to the legal
heirs.

Is the testator required to dispose all of his estate?
No, he is not

Children of C (collectively instituted)
Children of C

45

Can he be forced to institute an heir?
No, in Roman Law if a person died without an heir, it
is consider as a dishonor. But such is not applicable
in our time.

If the testator died without instituting an heir, does that
means that the testator died without a will?
No, because the testator can make a will without
instituting an heir but such provides a testamentary
disposition.

What is that testamentary disposition?
The devisees or legatees, so a testator can have a
will not to have an heir but can have a testamentary
disposition in the form of devisee and legatee and
such will will still be valid. The only requirement in a
valid last will and testament is there should be a
testamentary disposition, it is not required to have
an heir.

Freedom of disposition, how free is the testator to take
disposition?
It depends on the presence of compulsory heirs. The
testator can have complete discretion and limited
power of disposition because if the testator have
compulsory heirs or forced heirs then the testator
can only dispose the free portion of his estate.

Is the free portion fixed?
No, it is not, its extent or the existence of the free
portion depends on the kind of compulsory heirs
that the testator have and the number of
compulsory heirs that the testator have.

Illustration:

1. The circle is the whole estate

2. Such estate is automatically divided into 2, if the
testator have a compulsory heirs in the direct line or
if he has a spouse.

Such free portion is not strictly free for disposition, why not?
Because if the testator happens to have a spouse
and the testator happens to have an illegitimate
children, the law provides that their legitime when
they concur with legitimate children or legitimate
parents must be taken out of the free portion.

The law provides that the legitime of the spouse will have to
be satisfied ahead of the legitime of the illegitimate children.
In such illustration, what happens to the disposition in the
will? What will the voluntary heirs get?
Nothing.

Supposing the testator made more that one heir, and his
intention is to name them as heir to the entire estate. In the
absence of designation or specification of portion the
presumption is everyone will be getting an equal share.

X testator

A Heir 1/3
B Heir 1/3
C Heir 1/3
The legitime of , this is
inferred to the testators
legitimate children and
descendants or in the
absence of the legitimate
children or descendants,
then the testators
legitimate parents and
ascendants.
Free portion
Legitime of legitimate
children
is for the spouse,
assuming that there
is only one
legitimate child
Share of the illegitimate
child, of the share of
the legitimate child

46

Supposing the sharing is:

X testator

A Heir 1/3
B Heir 1/6
C Heir 1/6

Procedure:

Find the least common multiple (LCM)
LCM = 6

1 2
=
3 6 - LCM

1 1
=
6 6 - LCM

1 1
=
6 6 - LCM

Entire estate disposed of

2/6 + 1/6 + 1/6 = 4/6 or 2/3

Remaining portion that is undisposed = 1/3

Article 851. If the testator has instituted only one heir, and the institution is
limited to an aliquot part of the inheritance, legal succession takes place with
respect to the remainder of the estate.
The same rule applies if the testator has instituted several heirs, each being
limited to an aliquot part, and all the parts do not cover the whole
inheritance.

Can the testator do that?
Yes

What happens to the undisposed portion?
Such will be govern by intestate succession

Article 852. If it was the intention of the testator that the instituted heirs
should become sole heirs to the whole estate, or the whole free portion, as
the case may be, and each of them has been instituted to an aliquot part of
the inheritance and their aliquot parts together do not cover the whole
inheritance, or the whole free portion, each part shall be increased
proportionally.

This is a different topic- what if the testator intended to
dispose his entire estate to A, B and C but he is not good in
Arithmetic, he disposed his property A- 1/3, B- 1/6 and C- 1/6,
what happened now in the undisposed portion of 1/3?

X testator

A Heir 1/3
B Heir 1/6
C Heir 1/6


2/6 + 1/6 + 1/6 = 4/6 or 2/3


In this situation we cannot stop to that 2/3 of the estate
because there is an intention of the testator to give the entire
estate to A, B and C.

What do we do?
We increase the share of the heirs

What kind of increase?
Proportionate

Remember- we only increase if there is a clear intention to
give the entire estate to A, B and C and the aliquot part given
to them do not add up to 1 whole.

X testator

A Heir 1/3
B Heir 1/6
C Heir 1/6


2/6 + 1/6 + 1/6 = 4/6 or 2/3


Entire estate amounted to Php 150,000.00

A 1/3 = Php 50,000.00
B 1/6 = Php 25,000.00
C 1/6 = Php 25,000.00
Total = Php 100,000.00 (estate disposed of)

Remaining portion undisposed = Php 50,000.00
Getting the
numerator

6 3 = 2

6 6 = 1

6 6 = 1


47

What are we going to do with the remaining Php 50,000.00?
Divide such among A, B and C, proportionately

Procedure:

1 2
=
3 6 - LCM

1 1
=
6 6 - LCM

1 1
=
6 6 - LCM

Proportion:

getting the denominator- add the numerators

2 + 1 + 1 = 4

The proportion will be:

2 : 1 : 1

4

The sharing will be:

2 : 1 : 1 2 1 1
=
4 4 4 4

So:

Remaining portion = Php 50,000.00

2/4 or multiply by Php 50,000.00 = Php 25,000.00
multiply by Php 50,000.00 = Php 12,500.00
multiply by Php 50,000.00 = Php 12,500.00

So the added share to A, B and C is

A Php 25,000.00
B Php 12,500.00
C Php 12,500.00


48

WILLS11

Not every instance would there is a leftover in the estate or
with some portion of the estate is not disposed of do we
automatically increase, only when there is manifest intention
to make the heirs succeed to the entire estate.

Article 853. If each of the instituted heirs has been given an aliquot part of
the inheritance, and the parts together exceed the whole inheritance, or the
whole free portion, as the case may be, each part shall be reduced
proportionally.

Reduction
This happens if the proportion exceeds the entire estate

The testator instituted A and B as heirs. A is to get 3/4 while B
is to get 1/3. The entire estate is P312 M. What are the total
shares to be received by A and B in pesos?

A - 3/4 *312 M = 234 M
B - 1/3 * 312 M = 104 M

234 M + 104 M = 338 M (greater than the entire estate)

338 M 312 M = 26 M

A 3/4 = 9/12
B 1/3 = 4/12

9 + 4 = 13 (new denominator to get the proportion)

A 9/13 x 26 M = 18 M
B 4/13 x 26 M = 8 M

Share to be received by:
1) A 234 M 18 M = Php 216M
2) B 104 M 8 M = Php 96M

To Check if the computation is correct - 216M + 96M = 312M

Article 850. The statement of a false cause for the institution of an heir shall
be considered as not written, unless it appears from the will that the testator
would not have made such institution if he had known the falsity of such
cause.

Is there a need for the testator to state the reason for
instituting a person as his heirs?
No. You can simply say I institute Ronald Valdez as
heir. (No reason at all is given.)

When do we apply the provision on Falsity of the Cause of
Institution?
there is express mention of the reason/cause of the
institution;
the reason stated must be false; and
Institution would not have been made had the
testator knew the falsity of the cause.

Of these 3 elements which would prove to be the most
crucial?
The cause should be expressed in the will itself.

As stated before there is no need for the testator to provide
his reason for making the institution.

If he does not say what his reason is then no amount of claim
that such a reason which happen to be false it will not have
any effect. This is because you do not have any basis to say
that that is precisely his reason for making the institution and
the only susceptible way is to read the will itself. So if it is not
in the will we cannot begin to discuss falsity of cause. Because
if it is otherwise then you are 2
nd
guessing the testator. If you
have no certainty as to his reason for making the institution
then with less reason that you can be certain that this reason
is false. You cannot 2
nd
guess the person who is already dead
and cannot refute you.

Example where you can apply the provision of falsity of the
cause of institution of an heir that even in the absence of
express and lengthy explanation how else could we come to
the conclusion that had he know the falsity of the cause
testator would not have made the institution. How should the
institution be made?
I institute B as my heir because he saved my sons
life.

If it is later on shown that B did not really save the life of the
testators son would this be sufficient to annul the institution
of B as heir? How will the 3
rd
element apply?
If there is no tie, friendship, even an acquaintance
between the testator and B. If B was a total stranger
to the testator so that he will not have any reason to
make B his heir then we can conclude that had the
testator knew the falsity of the cause he would not
have made the institution.
Article 856. A voluntary heir who dies before the testator transmits nothing
to his heirs.
A compulsory heir who dies before the testator, a person incapacitated to
succeed, and one who renounces the inheritance, shall transmit no right to
his own heirs except in cases expressly provided for in this Code.

What is the Right of Representation?

If a voluntary heir dies before the testator, does he transmit
any right to his own heirs?
No. You cannot transmit what you do not have.


49

If a voluntary heir dies before the testator what does that
mean/signify?
He loses capacity to inherit. Dying ahead of the
testator is only one of the ways of losing ones
capacity to inherit. There are other ways.

A voluntary heir who dies ahead of the testator or who
otherwise is incapacitated shall not transmit anything to his
own heirs.

Is this principle applicable to a compulsory heir or an intestate
heir?
Yes. Compulsory heir and intestate heir do not also
transmit anything because he cannot transmit what
he does not have.

What does the right of representation do? Does it allow the
compulsory heirs or intestate heirs to transmit what he would
have received to his heirs?
Just like a voluntary heir, a compulsory heir and an
Intestate heir who dies ahead of the testator or
otherwise incapacitated, repudiated his inheritance
or disinherited will not transmit what he would have
received from the testator to his own children
because of the principle that he cannot transfer
what he does not have.

However in compulsory succession and intestate succession
despite the lack of transmission of rights, the heirs of the
compulsory heir and intestate heir, may still be able to inherit
what the compulsory heir or intestate heir would have
inherited through the right of representation.

This right of representation is not an exception to the rule of
no transmission because the children of the
compulsory/intestate heir are inheriting directly from the
testator or the decedent, not from the compulsory heir who
predeceased, was disinherited or was otherwise
incapacitated. This also true with the children of the intestate
heirs, they are also not inheriting from the intestate heir who
has predeceased or was otherwise incapacitated.

The effect of the right of representation is to elevate them to
the level of the compulsory or intestate heir who cannot
succeed. They are representing the compulsory or intestate
heir but they are not inheriting from them.

What are the differences between the right of representation
of the children or heir of the compulsory heirs and the
children or heir of the intestate heir?
In compulsory succession we have a peculiar ground
which is only available in such case. This is
disinheritance. You only speak of disinheritance with
respect to compulsory heir but not when it comes to
in to intestate heir. So there is right of
representation in compulsory succession on the
grounds of predecease, incapacity, or disinheritance.

In intestate succession there is right of
representation only in the grounds of predecease
and incapacity.

But for both there is no right of representation in
case of repudiation (the refusal to accept the
inheritance).

What happens to the inheritance if there is repudiation?
It still goes to the heir of the repudiating compulsory
or intestate heir but only this time they are
inheriting in their own right (no longer through right
of representation).

Is there right of representation when it comes to voluntary
succession?
None. However voluntary succession has a
counterpart for such right. This is through
substitution.
Article 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall annul the
institution of heir; but the devises and legacies shall be valid insofar as they
are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution
shall be effectual, without prejudice to the right of representation

What is preterition?
The preterition or omission of one, some, or all of
the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born
after the death of the testator, shall annul the
institution of heir; but the devises and legacies shall
be valid insofar as they are not inofficious.

If omitted compulsory heir should die before the testator, the
institution shall be effectual without prejudice to the right of
representation.

If there is an omission what could possibly take place before
the testator which could also prevent preterition from
occurring?
If omitted compulsory heir should die before the
testator, the institution shall be effectual without
prejudice to the right of representation.


50

Who are the compulsory heirs in the direct line?
Legitimate children (this includes adopted children
because they are elevated to the same status) and
descendants (anyone after children these are the
grand children, great grand children etc)
parents and ascendants (grandparents, great
grandparents)
Illegitimate children

Always remember that the omitted heir should be the real
compulsory heir. This means the one who stands to inherit.

The real compulsory heir is the one who is 1st entitled. There
is an implication that there seems to be a hierarchy.

If A made a will and omitted his parents is there preterition?
None. Parents are not the real compulsory heir
because they are excluded by the presence of the
children.

Supposing grand children are omitted in the will is there
preterition?
None. The real compulsory heirs are the children
because they are the closest descendant.

If the omitted compulsory heir dies:
Example: C was omitted, so there is a potential
reason for preterition to arise. Suppose he dies ahead
of B (testator) will there still be preterition?
No. The law says that if the omitted heir
dies ahead of the testator the institution
shall be effective but without prejudice to
the right of representation.

Do we have right of representation here?
Yes. Since the compulsory heir predeceased
the testator, there will be a right of
representation in favor of the
grandchildren. The great grand children are
excluded, they are barred by the closest
descendants.

If there is right of representation would there be
preterition?
It depends, if the grandchildren are also
omitted. Because by virtue of the right of
representation they are the real compulsory
heirs. If they were also omitted then there
will also be preterition. But if there was no
omission or if they are mentioned in the will
then the institution would remain valid. It
will now be a question of whether or not
there is a need to complete their legitime.

This is what is meant by without prejudice to the
right of representation. Because the right of
representation if applicable will elevate the
compulsory heir who becomes the real compulsory
heir whose omission may trigger preterition.

So if B dies your attention should now be focused on the
grandchild. Because the grandchild who has the right of
representation now becomes the real compulsory heir. You
have to determine whether the grandchild was also omitted
in the will. If he was omitted then the institution in the will is
to be annulled but if not, the institution will be given effect.
Subject to his right to the completion of his legitime.

What is the concept of omission? When is an heir considered
omitted?
If the heir is not mentioned in the will or if
mentioned (according the Manresa) is merely
described as father, son, daughter but not made an
heir. This is the classical definition, the omission
contemplated before.

Right now, under existing law, we cannot just rely on this
definition. Mere omission in the will would not be sufficient
because we now have Art. 906.

Article 906. Any compulsory heir to whom the testator has left by any title
less than the legitime belonging to him may demand that the same be fully
satisfied.

Under Art. 906, if the compulsory heir receives any gratuitous
title something from the testator then his only remedy would
only be completion of his legitime.

You have to consider the omission contemplated in
preterition in conjunction with Art 906. You cannot take it
independently of Art 906. If there is an omission your
question should always be, is Art 906 applicable?
This is because if it is applicable then there is no
preterition since Art 906 explicitly states that the
only relief to be given to the compulsory heir is
completion of his legitime.

If there is preterition, the heir does not only get his legitime,
but the entire estate because if there is preterition the
institution will be annulled as if there was no heir instituted.
It leaves the entire estate open to both compulsory and
intestate succession.

The compulsory heir will always be nearest related intestate
heir of the testator. So he stands to inherit not just his
legitime but, because of the annulment of the institution of
the heirs, even the intestate portion (which is not covered by

51

the compulsory succession). It paves the way for the way for
the opportunity of the omitted heir to receive more than his
legitime.

This is contradictory to Art 906 which limits you only up to
your legitime. If there are still heirs instituted they would still
get what is given to them under the will to the extent that the
legitime is not impaired.

Automically is always by compulsory succession in favor of
compulsory heirs in the direct line except illegitimate
children.

For the parents, legitimate children and descendants is
always .

The other is the free portion. If there is a will it goes by
testamentary succession. If there is none it goes by intestate
succession.

If there is preterition the institution of heir is annulled with
regard to the entire estate.

In this case compulsory succession is allowed to take place
naturally since this is the basis of annulment of the institution
of heirs because of preterition. At the same time since we
were able to remove or make the instituted heir out of the
way, the free portion is also up for grabs. It happens is that
the compulsory heir is also your nearest intestate relatives
because they are in the direct line.

The direct line is always favored over the collateral line.

Who are those in the direct line?
Parents and ascendants; children and descendants.

As long as you have relatives in the direct line you will not
even consider the other relatives. Your compulsory heir is
almost always your nearest intestate heir. You exclude all
others. So with preterition and the annulment of the
institution of heirs taking place, compulsory succession takes
place and intestate succession in favor of the compulsory
heirs also take place. It allows the compulsory heir to receive
more than his legitime.

Under Art 906 he only gets the right to complete his legitime,
which means that whatever happens he is limited to
(legitime). With regard to the other (free portion), the
institution of heir will still subsist.

Why does the law gives such kind of importance to
preterition?
The consequences attaching to preterition are quite
drastic compared to defective disinheritance.

In defective disinheritance the effect is similar to Art
906. The heir defectively disinherited will only be
entitled to the completion of his legitime.

The law provides if there is defective inheritance the
institution will be valid insofar as the legitime is not
impaired. At the end of it the defectively disinherited
heir will only get his legitime.

So why is there difference in the treatment?
This is because in defective disinheritance it is clear
that the testator intended to deny the the
compulsory heir of his legitime.

Remember that the only way that the compulsory heir maybe
denied of his legitime is through an act of disinheritance (this
is an absolute rule if the testator left an estate). The problem
is that disinheritance is very formal act and is limited to the
grounds provided by law. So if you give a ground not included
in those provided by law the disinheritance is defective. Or
even if the ground is among those provided by law, but your
heirs where not able to prove the validity/truthfulness of that
ground then you will still have a defective disinheritance.

But even if we say that the disinheritance is defective, is there
a doubt in the intention of the testator?
None. The mere fact that he made the effort to
effect a disinheritance speak volumes about his
intention/relationship with the compulsory heir he is
disinheriting.

This is not true when it comes to preterition. Basically the
testator just disregarded the heir; he did not make him an
heir nor disinherited him.

The problem when you did not acknowledge the person
without expressly disinheriting him the law becomes more
generous in its presumption. The law presumes that the
omission is not intentional or that you just overlooked him.
That is why when this happens the law will allow the
institution of heir in the will because of the presumption that
the omission was not intentional.

The law speaks of compulsory heirs who are alive at the time
of the execution the will OR born after the death of the
testator. There is also an interim period between the

52

execution of the will and before the death of the testator
(quasi-posthumous) who can also be subject to preterition.
Article 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall annul the
institution of heir; but the devises and legacies shall be valid insofar as they
are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution
shall be effectual, without prejudice to the right of representation.

Law says born after the death of the testator, will this
include those who are born 5 years after the death of the
testator?
No. This applies to conceived child. A conceived child
should be considered born for purposes beneficial to
it under the law. The gestational period is only 9
mos.

On when preterition will apply always consider that 906 is not
applicable. The omission should preclude that applicability of
906. If 906 is APPLICABLE there is NO PRETERITION.

This is why if the heir receives something by donation
intervivos, donation propter nuptias, legacies or devises OR if
the testator does not dispose of his entire estate so that the
heir would still receive something by way of intestate
succession 906 will still be applicable and there will be no
preterition.

Preterition causes the annulment of institution of the heir.
Will preterition always result in intestate succession?
No. If there are legacies or devises these should be
respected as long as they do not impair the legitime.
If there are legacies or devises these are sufficient to
preclude intestate succession because there will be
voluntary succession with regards to these legacies
or devises.

REYES VS BARRETTO-DATU
Salud executed 2 wills. 1
st
will involves Salud and
Milagros as heirs. 2
nd
will revoked Salud as heir
because she was not the daughter of Maria (only
that of his husband)
It was Tirso Reyes (guardian of Saluds children) who
presented the will for probate on account of the
revocatory clause in the 2
nd
will. So he said that since
you dont want to recognize them as heir in Marias
last will, we are going recover the of the fish pond
since the usufructuary is already dead.
Milagros took the opportunity to question the right
of Salud to succeed his father.
Milagros asserted under Art. 1081 institution of
Salud as heir is invalid.
This is a weak Art. 1081 speaks of spurious heirs not
spurious children or descendants

Milagros had a back up plan, she claimed that there
is preterition because she received less than her
legitime.
Her legitime under the old law she was supposed to
receive ____ of the estate but because of the
institution she received only .
SC said there was no preterition because there her
right is only completion of his legitime.

AZNAR VS DUNCAN
This is also a case in Persons. Despite the fact that
Edward Christensen was an Australian citizen (were
in generally the national law should apply) Philippine
law was applied because of the renvoi doctrine.
Edward Christensen left a will wherein Lucy Duncan
was made as a sole heir and recognized as his
natural daughter and bequeathed 3600 Helen
Garcia.
Helen Garcia is trying to do away with the will
because her theory was that she was preterited
since she was not named therein as an heir.

SC said there is no preterition because under Art 906
she received of a legacy which qualifies as receiving
something by any title and her only right is only the
completion of her legitime.

ACAIN VS IAC
This case is also an example of a Simple substitution.

SC said that the omission of the wife does not result
to preterition because she is not a compulsory heir
in the direct line.
However in the case of the adopted child (Virginia
Fernandez) her omission will give rise to preterition
because the law confers to the adopted child the
status of a legitimite child.

NUGUID VS NUGUID
In this case parents were omitted in the will.
Testator (Rosario) left a will were in she made
Remedios (her sister) as universal heir.
The parents were the real compulsory heirs because
testator had no children.


53

WILLS12
Article 857. Substitution is the appointment of another heir so that he may
enter into the inheritance in default of the heir originally instituted.

What is substitution?
Substitution is the appointment of another heir so
that he may enter into the inheritance in default of,
or subsequent to, the heir originally instituted

How does the law defines substitution?
Substitution is the appointment of another heir so
that he may enter into the inheritance in default of
the heir originally instituted.

Definition given by the law is inaccurate for it fails to include
fideicommissary substitution

How should the word substitution be defined if we will include
fideicommissary substitution?
.succeeding in default of or subsequent to .

Succeeding in default of and succeeding subsequent to, what
will be the difference?
in default of- the instituted heir is substituted
because he predeceased the testator; he is
incapacitated; he repudiates the inheritance
Subsequent to- both the instituted heir and the
substitute enter into the inheritance, not in default
of the fiduciary

Why does the law provide for this kind of institution
(substitution)?
To prevent intestate succession or to prevent the
____ from passing to those persons whom the
testator does not want to succeed him.

How does the law achieve that purpose?

Remember the discussion of the right of representation. In
some ways, substitution would serve as a counter part of
right of representation.

The testator and a voluntary heir (VH), and the children of the
voluntary heir. As we said that if the voluntary heir
predeceases the testator or is incapacitated, his (VH) children
will not be receiving anything from testator because there is
no transmission and there is no right of representation.
Unlike in compulsory succession and intestate succession,
right of representation is not an exception but it allows the
descendants of the compulsory heir or intestate heir to
assume their position to the line of succession and inherit the
estate from the testator.

In substitution, we do not have the mechanism of right of
representation, but the testator can ensure that the children
of the voluntary heir would succeed to the portion that he
would have given in case the voluntary heir predecease him,
or incapacitated or repudiates the inheritance, and that is
thru substitution. But the thing is in substitution, the testator
is not limited to the children of the voluntary heir in his
choice of substitutes, he can always choose from the rest of
humanity, he is not compelled (to choose the descendants of
the VH), he may if he wants to choose someone from the
descendants of the VH.

What is the purpose of substitution?
If the testator provides for a substitution, we can
readily see that the testator does not want to die
intestate. He is making sure that his estate will not
go to his relatives because disinheritance is
considered only to compulsory heirs, one of the
ways that the testator can prevent the other
relatives who are not compulsory heirs succeeding
your estate is by making a last will and testament
disposing of the entire estate. But the thing is we do
not have any control about the instituted heir, he
may predecease the testator, or incapacitated or
repudiates the inheritance that is beyond the control
of the testator. That is why the law provides for
substitution.

Article 858. Substitution of heirs may be:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary.

How many kinds of substitution do we have (Art.858
provides)?
4 kinds
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary

The law provides 4 kinds of substitution but some legal
authorities gives only 2 kinds of substitution namely simple
and fideicommissary. Then the simple substitution will
include the 2 other kinds, brief or compendious and
reciprocal substitution.

How do we characterize this (substitution) as a form of
institution?
It is classified as a conditional institution

Why?
It is subject to future events

54

What are these events?
death, incapacitated or repudiation

What institution made it conditional?
The institution of the substitute

So we have 2 heirs actually, but only one of them will
eventually succeed into the estate. We can classify
substitution as some kind of conditional institution and the
condition pertains to the institution of the substitute. In the
event of death, incapacity or repudiation of the first heir.

Simple Substitution
Article 859. The testator may designate one or more persons to substitute
the heir or heirs instituted in case such heir or heirs should die before him, or
should not wish, or should be incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to which it refers,
shall comprise the three mentioned in the preceding paragraph, unless the
testator has otherwise provided.

What about death? This incapacity or repudiation is unknown
event or uncertain event, the testator is not sure whether it
will take place or not. But what about death? Is there any
uncertainty about death that we can classify it as a condition?
Death is certain. How can we justify our statement that this is
also a condition?
It is not the occurrence of death the condition rather
the death of the heir prior to the death of the
testator. That is what is uncertain.

How can a testator make a substitution?
The testator is not required to specify the event
which will trigger the substitution

What happens if the testator did not specify?
Any of conditions will be applicable

Can the testator choose one or 2 conditions?
Yes, but the testator should specify the conditions

Can the testator impose some other conditions other than the
3 specified by law?
Yes, substitution is an example of a conditional
institution but the law has specified the grounds for
substitution but that does not stop the testator from
imposing conditions that he wants. He is allowed by
law to impose any and all kinds of conditions.

For example: I institute A as my heir but if he fails to pass the
bar exams his institution will cease and B shall be taking his
place as his substitute that will be a conditional institution. It
is valid, but strictly speaking it is not a substitution because
the condition is not among the grounds provided for by the
law but it is valid as a conditional institution.

Brief or compendium substitution

Article 860. Two or more persons may be substituted for one; and one
person for two or more heirs.

How many substitutes can we have for one heir?
The testator can have 1 heir but he can have more
than one substitute or several heirs but only one
substitutes or he can have several heirs and several
substitutes

In this kind of situation were we have multitude of persons as
substitute as well as heirs, what do we call this substitution?
Either brief or compendium

Brief involves 1 heir
Compendium involves more than 1 heir

But legal authorities believe these 2 terms are synonymous,
they can be used interchangeably.

If testator only has one heir but several substitutes, how does
it work and the estate is worth 30 million?
If the institution is silent about the designation
shares of the substitutes, it is presumed to be equal.

Can the testator specify the portion that they are to take in
the substitution?
Yes

If testator more than one heir but one substitute, how does it
work?
So if Heir1 and heir2 are instituted jointly to an
aliquot part or to the entire estate without the
designation of shares, there will no substitution
upon the death of one of them because _____
applicability of the right of accretion.
Accretion means that whenever one of several heirs
was not able to succeed to an aliquot portion of the
estate or the entire estate to which he and the other
heir are instituted, his shares some pertain to the
other heir who able to succeed, there is approval, so
there are conditions that must be met for accretion
to takes place.
So if accretion does takes place as in this case, were
Heir1 and Heir2 are instituted jointly without specific
designation of their shares then what happens after
Heir2 dies ahead of the testator or of Heir1 would be
that his share accrue to Heir1 it will not go to the
substitute because there is a right of accretion.

55

But it will be a different matter if Heir1 is instituted 1/3 and
Heir2 is instituted 2/3, in which case the death of one of them
would allow substitution to takes place otherwise if there is
accretion Heir1 and Heir2 must die before substitution to
take place.

Reciprocal Substitution

Article 861. If heirs instituted in unequal shares should be reciprocally
substituted, the substitute shall acquire the share of the heir who dies,
renounces, or is incapacitated, unless it clearly appears that the intention of
the testator was otherwise. If there are more than one substitute, they shall
have the same share in the substitution as in the institution.

Reciprocal substitution- this is a kind of substitution where
the substitute are also heirs.

E.g.
A, B and C are heirs of the testator. The testator can provide
for the reciprocal substitution among them. If A die, B and C
would be his substitute.

There will be no problem if they are equally instituted.
Because the share of A will be divided equally to B and C.

A- 1/3
B- 1/3
C- 1/3

A died

As share will be divided into 2
1/3 (As share) 2 = 1/6

So:
B- 1/3 + 1/6
C- 1/3 + 1/6

What if the heirs were instituted proportionately with
different proportion?
A- 1/6
B- 2/3
C- 1/6

A dies, how will we divide the 1/6 portion?
It must be divided proportionately

2 4
B= =
3 6

1 1
C= =
6 6


4 : 1

5

So B will get 4/5 of 1/6 share of A and C will get 1/5 of 1/6
share of A. Proportionate because we are suppose to get the
same share in the substitution as they give in the institution.

So if the total estate is 30M

1 1
A = * 30M = 5M
6 6

2 4
B = * 30M = 20M
3 6

1 1
C = * 30M = 5M
6 6

A died

2 4
B= =
3 6

1 1
C= =
6 6

56


4 : 1

5

So:

5M (share of A) * 4/5 (proportionate share of B from As
share)

= 4M

5M (share of A) * 1/5 (proportionate share of C from As
share)

= 1M

Capacity to inherit should be inhere at the time of death of
the testator. In case of a substitute we have establish that his
institution is conditional in nature. Being conditional in
nature, when should his capacity to succeed be inhered?
At the time of the testators death

Would there be other requirement for him to be regarded
_____ capacity to succeed considering that his institution is
conditional in nature?
Conditional institution, the law says that we also
need to consider the time of the condition is
fulfilled. The conditions are predecease, incapacity
or repudiation.
If predecease, if the heir dies ahead of the testator
and the substitute is capacitated at the time of death
of the testator, it also follows that he was also
capacitated when the condition took place. Took
place prior to the death of the testator

The other 2 (incapacity and repudiation) becomes tricky
because of the reality of court proceedings, although death
may takes place today, the settlement of the estate cannot
be settled until after a decade. An heir would be required to
accept or repudiate after the settlement of the estate is
completed. At the end, the court will issue an order and the
heir will have 30 days to signify his acceptance, if the heir did
not do anything then he is deemed to accept. In the interim a
lot of things may happen. The testator dies, the proceedings
of the settlement of his estate are instituted, proceedings are
completed after 10 years. During the 10-year period, the
substitute may either die or even become incapacitated to
succeed. So what happens if at the end of this long
proceeding the heir decides not to accept? Then the condition
takes place which is repudiation, but what if the substitute
dies in that instance, can the heirs claim the estate? We have
no question that he is alive at the time the testators death in
which case he has capacity to succeed at the time of the
death of the testator but he died before the repudiation took
place, so did he not have the capacity to succeed at the time
the condition was fulfilled? The law says that if the situation
is a conditional institution, the capacity to succeed should not
only be inhered at the time of the death of the testator but
also when the condition is fulfilled. No question about the
first one, but what about the second requirement, that the
capacity to succeed should be existing at the time the
condition is fulfilled? The condition being the repudiation
which takes place after 10 years from the death of the
testator and the substitute in the mean time has died.
He (the substitute) has no capacity anymore

Transcribers understanding concurred with Suzy and Donna- the substitute has no more
capacity to succeed but the right to succeed had been vested already because the repudiation
of the instituted heir retroacts at the time of the testators death, therefore the heirs of the
substitute can claim the property that would have gone to the substitute

The effect of acceptance or repudiation retroacts at the time
of death. Even the retroactive effect of repudiation or
acceptance, it can be argued that repudiation is deemed to
have taken place at the time of the testators death.

In this case, is the substitute has capacity to succeed at the
time of the death of the testator?
Yes

Did the inheritance vest upon the substitute?
Yes

Can his heirs claim what would have gone to the substitute?
Yes

Article 862. The substitute shall be subject to the same charges and
conditions imposed upon the instituted heir, unless and testator has
expressly provided the contrary, or the charges or conditions are personally
applicable only to the heir instituted.

If the heir is instituted under certain conditions, can the
testator so provide for a substitute for him?
Yes

But what happens in the condition imposed upon the heir?
The substitute as a rule is also subject to the
condition for the institution of the heir

What are the 2 exceptions?
If the testator provides otherwise

57

The condition is personally applicable to the heir
instituted

Fideicommisary Substitution

Article 863. A fideicommissary substitution by virtue of which the fiduciary or
first heir instituted is entrusted with the obligation to preserve and to
transmit to a second heir the whole or part of the inheritance, shall be valid
and shall take effect, provided such substitution does not go beyond one
degree from the heir originally instituted, and provided further, that the
fiduciary or first heir and the second heir are living at the time of the death of
the testator.

Elements of the fideicommissary Substitution
Presence of the first heir also known as the Fiduciary
Presence of the 2
nd
heir also known as
fideicommissary
Every fideicommissary substitution must be
expressly made in order that it may be valid
substitution does not go beyond one degree from
the heir originally instituted
that the fiduciary or first heir and the second heir
are living at the time of the death of the testator.

What does the fiduciary acquire?
He is given rights to use and to the fruits more than
that mere administrator, but less than those of an
owner

Does the fiduciary acquire ownership over estate?
No

Why is it he does not acquire ownership and that akin to a
usufructuary?
Because he does not acquire absolute dominion over
the property, he does not acquire absolute dominion
because he cannot dispose of the property. He
cannot destroy the property he has the obligation to
preserve and to transmit. Basically, he is classified as
a usufructuary because of these obligations

How do we classify the institution of the fideicommisary? Is it
conditional as well?
It cannot be conditional. His right to the property is
vested upon the death of the testator. Thats why
the law requires that both fiduciary and
fideicommissary are both alive at the time the
testator dies. This institution is not subject to a
condition but it is subject to a period.

If the last will and testament is silent as to the length of time
the fiduciary is suppose to enjoy the property before the
fideicommissary, then we take it that it is supposed to be for
his entire lifetime. Meaning to say his right as a fiduciary will
end upon his death and yet in this case it is a period.

The last will and testament can provide that it can be shorter
than his lifetime. A specific period.

Article 866. The second heir shall acquire a right to the succession from the
time of the testator's death, even though he should die before the fiduciary.
The right of the second heir shall pass to his heirs.

It does not matter if the fideicommissary dies ahead of the
fiduciary. If the fideicommissary dies ahead of the fiduciary,
the heirs of the fideicommissary will be entitled to get the
inheritance because his right has been vested. The effect of
the period ___ the lifetime of the fiduciary or some other
periods specify by the testator is only to suspend not the
acquisition of his right but his enjoyment, his right to enjoy as
an owner.

In fideicommissary substitution, the institution if the
fideicommissary is subject to a period, it is vested upon the
death of the testator. So if the testator dies, he is waiting for
the lapse of the period and the period could either be the
lifetime of the fiduciary if the will is silent or if the will
specifies a certain period then the lapse of that period. Either
of the 2, which ever comes first, because it is possible that
the fiduciary dies first before the lapse of the specified period
in which case the fideicommissary substitution comes in.
Article 865. Every fideicommissary substitution must be expressly made in
order that it may be valid.
The fiduciary shall be obliged to deliver the inheritance to the second heir,
without other deductions than those which arise from legitimate expenses,
credits and improvements, save in the case where the testator has provided
otherwise.
How should the fideicommisary substitution be made?
The law requires that fideicommissary substitution
should be expressly made

And when it is expressly made? How do we comply with this
requirement of express making of fideicommissary
substitution?
By giving the substitution this name OR
By imposing on the fiduciary the absolute obligation
of delivering the property to a second heir

If the above manner is not done, then it is not valid and
cannot be given effect.

The law requires that the fideicommissary should not be
more than one degree beyond the fiduciary


58

Before one degree was argued as being one transfer, but in
the ruling in the case of Palacios vs Ramirez, the one degree
here means one degree of relatitonship. In this case, the
fideicommissary can only be the parents or the child of the
fiduciary.

PALACIOS VS RAMIREZ

What does the Supreme Court mean by the word
companion?
Allen said: special housemaid
Maam said: ____

This is how the designation of shares
1/3 to the wife as her legitime
The remaining 2/3 of the free portion, he gave it to
Jorge and Roberto. But the testator provided that
1/3 of the free portion should be given in usufruct to
the wife. And with regard to the right of usufruct he
created a substitution in favor of the special
housemaid (Wanda). With regard to the 2/3 portion
of the free portion, he also created a usufruct over
this portion in favor of Wanda, and then he created
a fideicommisary substitution.

With regard to the fideicommissary substitution in
favor of juan Pablo and horacio the same is null and
void because juan Pablo and Horacio were not the
children nor the parents of Wanda, the transfer is
not within one degree. The degree refers to
relationship.

Last Element of fideicommissary substitution: that the
fiduciary and the fideicommissary are living at the time of
the death of the testator

Supposing that the period specified by the testator has lapsed,
the fiduciary was now obliged to give the property to the
fideicommissary, would there be other obligation on the part
of the fideicommissary to reimburse or to pay the fiduiciary?
The useful expenses are not reimbursable but those
necessary expenses (expenses for the preservation
of the property) are reimbursable

PCIB VS ESCOLIN
There is no fideicommissary substitution but what he
have in this case in some kind of a conditional
institution, the condition would be the husband dies
and the remainder in the inheritance in his estate.
For the husband the condition is him dying ahead of
the heirs of the wife and there would be residues of
the inheritance that would be a resolutory condition.
But the same condition or event comprise the
suspensive condition in so far as the brothers and
sisters of the wife are concerned because the
happening of the event (husband died ahead of
them and residue in the inheritance of the estate)
would trigger the reacquisition of ownership over
those properties.


59

WILLS13
Article 867. The following shall not take effect:
(1) Fideicommissary substitutions which are not made in an
express manner, either by giving them this name, or imposing
upon the fiduciary the absolute obligation to deliver the property
to a second heir;
(2) Provisions which contain a perpetual prohibition to alienate,
and even a temporary one, beyond the limit fixed in article 863;
(3) Those which impose upon the heir the charge of paying to
various persons successively, beyond the limit prescribed in article
863, a certain income or pension;
(4) Those which leave to a person the whole or part of the
hereditary property in order that he may apply or invest the same
according to secret instructions communicated to him by the
testator.

One of the provisions in a will which cannot be given effect
would be a fideicommissary substitution that is not made in
an express manner. Aside from this, what other provisions
that cannot be given effect?
Provisions which contain a perpetual prohibition to
alienate, and even a temporary one, beyond the
limit fixed in article 863
Those which impose upon the heir the charge of
paying to various persons successively, beyond the
limit prescribed in article 863, a certain income or
pension
Those which leave to a person the whole or part of
the hereditary property in order that he may apply
or invest the same according to secret instructions
communicated to him by the testator

Provisions which contain a perpetual prohibition to alienate,
and even a temporary one, beyond the limit fixed in article
863

Would there be a prohibition against making such a provision
preventing alienation?
As General Rule, No. but it is subject to a limitation.

If there would be a fideicommissary substitution then the
default period would be the lifetime of fiduciary.

If there is no fideicommissary substitution, we can still
impose a prohibition against alienation but only for a period
not beyond 20 years.

Can this prohibition to alienation be imposed on the legitime?
No

What about the prohibition against partition?
Yes, it is allowed by law even upon the legitime. The
prohibition against partition may be imposed even
with regard to the legitime, but subject to a period

Those which impose upon the heir the charge of paying to
various persons successively, beyond the limit prescribed in
article 863, a certain income or pension

Why is it prohibited by law?
It can be taken as circumvention on the limitation
relating to fideicommissary substitution. Remember
in fideicommissary substitution, we can only have 2
transfers and the fiduciary and fideicommissary must
be related personally. So, if there limitations in
fideicommissary substitution then we cannot allow
this to be circumvented by simple ____ of ____ the
institution as some kind of charge for the payment
of income or other charges.

How would we provide for a provision which will fall outside
the scope of this prohibition?
Instead of instituting them successively, institute
them simultaneously

Those which leave to a person the whole or part of the
hereditary property in order that he may apply or invest the
same according to secret instructions communicated to him
by the testator.

Why is it prohibited?
Because essentially, this is not an institution of an
heir, but it is an appointment of an agent. And
obviously if the testator gave his instruction in secret
that means that it is a disposition that the testator is
not allowed to make under the law, otherwise there
is no reason for the testator to give secret
instruction.

Article 868. The nullity of the fideicommissary substitution does not
prejudice the validity of the institution of the heirs first designated; the
fideicommissary clause shall simply be considered as not written.

Supposing that the fideicommissary substitution is provided
for in the will is null and void, what will be the consequence of
its nullity?
The nullity of the fideicommissary substitution does
not prejudice the validity of the institution of the
heirs first designated; the fideicommissary clause
shall simply be considered as not written.


60

Why?
Because we can consider the fiduciary is a principal
then the fideicommissary is an accessory, hence the
Principal can stand without an accessory

What if it is the other way around, the institution of the
fiduciary is null and void, is the institution of the
fideicommissary heir valid?
No, the institution of the fideicommissary heir is
invalid because following the same reason above,
the fiduciary is considered as the principal and the
fideicommissary is the accessory. The fiduciary is the
principal because, such institution can exist even
without a fideicommissary heir essentially he is an
heir only is made subject to a period.

Would the nature of his institution change?
No, the character of the fiduciarys institution is still
subject to a period either his lifetime or other period
as specified by the testator. As when the period
expires, the fiduciary loses the property in favor of
the supposed substitute. But in this case, the
substitution is null and void, hence, there is no
substitute.

Supposing after the fiduciarys lifetime or after the occurrence
of the period where he was instituted as heir, where will the
property go?
To the instate heir of the testator, which will be
consistent to the purpose of the substitute. The
purpose of the substitute is to prevent intestacy. If
the substitution will not work then intestacy will take
place.

Conditional Institution

Article 871. The institution of an heir may be made conditionally, or for a
certain purpose or cause.

Basically, conditional institution pertains to the right of the
testator to make disposition that is subject to conditions,
period or mode.

Article 872. The testator cannot impose any charge, condition, or
substitution whatsoever upon the legitimes prescribed in this Code. Should
he do so, the same shall be considered as not imposed.

Why does the law allow the testator make dispositions
subject to conditions, periods or modes?
because it stems from testamentary privilege or
power. If the testator is allowed to make dispositions
take effect after his death, then it goes that we also
allow him the right to determine under which
circumstances his dispositions are to take effect.
What is condition?
Every future and uncertain fact or event to the
fulfillment of which juridical act is subordinated.

Kinds of condition
Suspensive condition
Resolutory condition
Potestative
Casual
Mixed

What is suspensive condition
Fulfillment of the condition give rise to a right

What is resolutory condition?
Fulfillment of the condition extinguishes a right

Term or period
Every future and certain fact or event to the
fulfillment of which juridical act is subordinated.

Would there any limitations upon the testator in imposing
conditions?
Yes

What are those limitations?
The testator cannot impose any charge or condition
on the legitime
The testator cannot impose impossible condition
The testator cannot impose absolute prohibition
against marriage
Disposition captatoria

Article 872. The testator cannot impose any charge, condition, or
substitution whatsoever upon the legitimes prescribed in this Code. Should
he do so, the same shall be considered as not imposed.

Article 873. Impossible conditions and those contrary to law or good customs
shall be considered as not imposed and shall in no manner prejudice the heir,
even if the testator should otherwise provide.

Why is it the testator cannot impose an impossible condition?
Because of the impossibility in fulfilling the
conditions and prevents the heir from inheriting.

So if impossible or immoral conditions were imposed the heir
will not inherit?
No, the condition will be considered as not imposed,
hence, the institution becomes pure

Pure means?
Not subject to any conditions or term


61

Do we observe the same rule when it comes to ordinary
obligations? (obligations and contracts)
No, the condition is an essential part of the
consideration for the obligation, so that if the
condition is not fulfilled, theres failure of
consideration.

In testamentary disposition, the considered consideration is
the liberality of the testator

Article 875. Any disposition made upon the condition that the heir shall
make some provision in his will in favor of the testator or of any other person
shall be void.

Disposition Captatoria

Rationale for prohibition: reduces the testamentary act into
a contractual transaction
Article 874. An absolute condition not to contract a first or subsequent
marriage shall be considered as not written unless such condition has been
imposed on the widow or widower by the deceased spouse, or by the latter's
ascendants or descendants.
Nevertheless, the right of usufruct, or an allowance or some personal
prestation may be devised or bequeathed to any person for the time during
which he or she should remain unmarried or in widowhood.

Absolute prohibition to contract a first marriage is void

To fall outside this condition, how can the testator impose any
prohibition contracting a first marriage?
By imposing a relative prohibition

What makes a prohibition relative?
The prohibition refers only to particular persons or
group of persons, or particular periods or places

Can a subsequent marriage be prohibited?
As a general rule, prohibition to remarry (refers to
subsequent marriage) is void

Exception: when it is imposed upon the widow or widower
by:
The deceased spouse
Ascendants or descendants of the deceased spouse

How about if it is imposed by the parents-in-law of the heir?
The law says that only the ascendants of the
deceased spouse, parents-in-law not included

Supposing the condition is for the heir to marry?
Such condition is valid

How come when it is absolute prohibition to get married, such
condition is void but if the condition for the heir to get
married such conditions is valid?
Because such absolute prohibition would encourage
immorality, since the couple would just live in
together so as not to contravene the condition

Kinds of conditions according to the manner of fulfillment
Potestative
Casual
Mixed

Potestative condition- the fulfillment of which depends
entirely on the will of the heir, legatee or devisee

Casual Condition- the fulfillment of which depends entirely
on chance or third person

Mixed Condition- the fulfillment of which depends partly
upon chance and partly upon the will of the heir or of a third
person

Can the testator impose this kind of condition?
Yes
Article 876. Any purely potestative condition imposed upon an heir must be
fulfilled by him as soon as he learns of the testator's death.
This rule shall not apply when the condition, already complied with, cannot
be fulfilled again.

Would there be any specific consequences if the testator
impose a potestative condition?
the heir must fulfill the condition as soon as he
learns of the testator's death

What if he had already fulfilled the condition? Is he suppose
to do it again?
It depends, if the condition is deemed fulfilled if such
condition was already complied with AND if such a
nature that it cannot be fulfilled again. But if the
condition although already complied with but if it is
in such a nature that it can be fulfilled again.
Article 877. If the condition is casual or mixed, it shall be sufficient if it
happen or be fulfilled at any time before or after the death of the testator,
unless he has provided otherwise.
Should it have existed or should it have been fulfilled at the time the will was
executed and the testator was unaware thereof, it shall be deemed as
complied with.
If he had knowledge thereof, the condition shall be considered fulfilled only
when it is of such a nature that it can no longer exist or be complied with
again.

62

Example of Mixed:
Marrying the daughter of the testators neighbor

When should this mixed or casual condition be fulfilled?
As a general rule, it shall be sufficient if it happen or
be fulfilled at any time before or after the testator
dies.
Exception: if it is already been complied with at the
execution of the will:
If the testator knew of the fulfillment
o General Rule: it is not deemed fulfilled
o Exception: if it is of such a nature that it
can no longer exist or be complied with
again
If the testator did not knew the fulfillment
o The conditions is deemed fulfilled

*** (transcribers notes not discussed)
Constructive fulfillment of a Potestative conditions
When the heir, devisee or legatee is willing to obey
the wishes of the testator, doing all that is in his
power towards the of the condition, yet it is not
fulfilled for reasons imputable to the fault or neglect
of such heir, legatee or devisee, such a case the
condition should be considered fulfilled

Constructive fulfillment of a Casual Conditions
There is no constructive fulfillment, there must be an
actual fulfillment because the performance does not
depend on the will of the heir

Constructive fulfillment of Mixed Conditions
As a general rule, there is no constructive fulfillment,
except, when the third person interested in the
condition prevents its fulfillment without the heirs
fault.
*****

If the condition is Potestative, the law requires absolute
fulfillment. Also for casual and also for mixed.

In potestative conditions, if the heir should learn of the death
of the testator, then his obligation is to immediately perform
the condition because it is dependent upon his will. The only
exception is if the condition is substantially it serve as it
cannot be fulfilled again.

Example: enrolling in law school is a condition that cannot be
repeated once more.

If the condition is casual meaning it is dependent upon
chance or upon the will of a third person.

If the condition is a combination of the will of the heir and
will of a third person or chance.

For casual and mixed conditions, the requirement of law
about its fulfillment is the law would recognize any fulfillment
of these conditions either before or after the death of the
testator.

If the conditions are fulfilled before the death of the testator,
we make a distinction whether the testator knew of the
fulfillment of the condition or not at the time of execution of
the will.

If the testator does not know the fulfillment of the condition
at the time of the execution of his will then the condition is
deemed fulfilled because we can say that he imposed such
condition only because that he did not know that it had
already been fulfilled. Had he known then he would have
made the institution pure and not subject to any condition.

If the testator know the fulfillment of the condition at the
time, then we cannot say that the fulfillment of the condition
is lieu already of the fulfillment already of the condition and
he still impose it then that means he wants it to be fulfilled
again. In this case, there is a need to fulfill the condition again
except if it substantially sure that it cannot be fulfilled again.

Example: if the condition is requiring the heir to marry his
girlfriend, it is mixed condition because it is partly on the will
of the heir and partly on the will of a third person (girlfriend).

If the testator did not know that the testator did not know at
the time of the execution of the will that they had been
married, then the condition is deemed fulfilled.

If the testator knew and still provide in his will, the condition
is deemed fulfilled because this is a type of condition that
cannot happen again. He can get married only once to his
girlfriend.

Article 879. If the potestative condition imposed upon the heir is negative, or
consists in not doing or not giving something, he shall comply by giving a
security that he will not do or give that which has been prohibited by the
testator, and that in case of contravention he will return whatever he may
have received, together with its fruits and interests.

A potestative condition can also be a negative in nature that
means that the heir is required not to do something.

We can ensure that the heir would continue in refraining in
doing that which is prohibited by the testator, we require the
heir to post a security which is known as CAUCION MUCIANA.


63

He post this security of CAUCION MUCIANA, the heir will be
allowed to enter the inheritance.

Supposing that the heir violates the prohibition, he does what
is prohibited by the testator, he must return what he had
received together with the fruits and income.

But the violation may take place many years after the death
of the testator and by that time we are no longer certain as to
the state of the property that has been inherited, we are not
even sure that it is something worth any value. For example a
car that will be inherited on the condition that he will not
ever engage in a fist fight, it is a negative potestative
condition. But supposing 10 years after and the car had been
in the possession of the heir for 10 years, the heir engage in a
fist fight, he forgot that there was an imposition upon him,
then he violated the prohibition, we can now compel him to
return the car. The intestate heirs of the testator saw that the
car does not have any value, if that is the case, the assurance
of the testator that his wishes would be respected by the
heir, that is where the security comes in. The security will
answer for the obligation of the heir that it will back what
would have been received together with fruits and income if
there will be a violation of the prohibition. This security may
be in the form of a cash, property or bond. So instead of
getting the car, the intestate heir can be compensated with
money, the value of the car.

Supposing the heir upon whom a NEGATIVE POTESTATIVE
CONDITION is imposed not able to post the security, what
happens to the property to be inherited in the meantime. It
will be placed under administration.

What are the three instances where CAUCION MUCIANA is
required?
When an heir is instituted under a negative
potestative condition. Caucion Muciana secures the
property right of the intestate heir in case of
violation of the negative potestative condition
When the institution is subject to a SUSPENSIVE
PERIOD or TERM with regard to the intestate heirs
MODAL institution

What are the 2 instances where ADMINISTRATION is required
by law?
When an heir instituted failed to post a security or
caucion muciana in a NEGATIVE POTESTATIVE
CONDITION
when the institution is subject to a SUSPENSIVE
CONDITION

Article 878. A disposition with a suspensive term does not prevent the
instituted heir from acquiring his rights and transmitting them to his heirs
even before the arrival of the term.

The institution may be also subject to a period or term. When
the testator institute an heir subject to a period, it can either
be a suspensive or resolutory.

Suspensive term or period- the heirs right to the property
will become effective after a period of time following the
death of the testator. The heir acquires his right as an heir
upon the death of the testator.
Should the heir died anytime between the death of the
testator and expiration of the SUSPENSIVE PERIOD the
property will be given to the HEIRS OF THE INSTITUTED
VOLUNTARY HEIR. The HEIRS OF THE INSTITUTED
VOLUNTARY HEIR will be entitled to the property because the
right of the instituted voluntary heir has become vested upon
the death of the testator. The period or term only suspends
the effectivity of his right but that does not change the fact
that as of the time of the death of the testator he had already
acquired the ownership of the property.

The testator can impose a RESOLUTORY PERIOD to the
institution of heir. In resolutory period, the right is not
suspended, it is immediately effective upon its vesting; only it
will be extinguish upon the expiration of the period. In which
case, upon the death of the testator, the heir acquired
ownership and at the same time his right is already effective.
After the expiration of the period, the property will be given
to the INTESTATE HEIRS.

In the meantime that the property is not yet been transferred
to the heir instituted which is subject to a SUSPENSIVE TERM
OR PERIOD such property will go to the INTESTATE HEIRS OF
THE TESTATOR.

There is a conflict in Article 880 and Article 885.
Article 880. If the heir be instituted under a suspensive condition or term,
the estate shall be placed under administration until the condition is fulfilled,
or until it becomes certain that it cannot be fulfilled, or until the arrival of the
term.
The same shall be done if the heir does not give the security required in the
preceding article.

Article 885. The designation of the day or time when the effects of the
institution of an heir shall commence or cease shall be valid.
In both cases, the legal heir shall be considered as called to the succession
until the arrival of the period or its expiration. But in the first case he shall
not enter into possession of the property until after having given sufficient
security, with the intervention of the instituted heir.


64

How do we solve the conflict?
Article 880 will apply to SUSPENSIVE CONDITION-
place under administration
Article 885 will apply to SUSPENSIVE PERIOD- to the
intestate heirs

There will be additional obligation upon the intestate heirs so
that they can enter into the inheritance. Such additional
obligation is they are required to post a security, they are
required to give CAUCION MUCIANA. This is to secure the
property right that is to be transferred to the voluntary heirs.

If it is subject to a resolutory period, the voluntary heir will
enter to the inheritance first. Thereafter, the intestate heir
will succeed after the expiration of the period.

In SUSPENSIVE TERM OR PERIOD, the intestate heirs should
furnish caucion muciana to protect the rights of the voluntary
heirs but we DO NOT impose the same condition (furnishing
caucion muciana) upon the voluntary heirs for the protection
of the right of the intestate heirs in RESOLUTORY TERM OR
PERIOD because the law does not make that requirement.

SUSPENSIVE CONDITION, the property will be placed under
ADMINISTRATION.
Article 882. The statement of the object of the institution, or the application
of the property left by the testator, or the charge imposed by him, shall not
be considered as a condition unless it appears that such was his intention.
That which has been left in this manner may be claimed at once provided
that the instituted heir or his heirs give security for compliance with the
wishes of the testator and for the return of anything he or they may receive,
together with its fruits and interests, if he or they should disregard this
obligation.

Modal institution- a mode consists in the statement of the
object of the institution, or the application of the property
left by the testator, or the charges upon the heir.
Testator states the:
Object of the institution
Application of the property
Charges upon the heir

Would a mode be considered a condition that will suspend the
right of the heir with regard to the inheritance?
No, unless contrary intention on the part of the
testator is apparent.

A MODE is OBLIGATORY, but it does not SUSPEND while a
CONDITION SUSPENDS but NOT OBLIGATORY.

If the heir is instituted under with a mode, that means the
heir immediately acquire the right to the property, or the
right immediately becomes effective. But what will be the
assurance of the testator that the heir will perform the mode
that has been imposed in the latters institution?
Caucion Muciana comes in, so if it is proven that the
heir did not perform the object of the institution or if
it is not applied the property as specified by the
testator or if the heir did not satisfy the charges
impose upon the heir, the obligation of the heir that
was instituted with a mode is to return what he had
received together with the fruits and income. And to
ensure that there will be performance of the
obligation, there is a caucion muciana.

RABADILLA VS CA
It is very clear from the codicil that the testatrix
intended that the property be inherited by Jorge. It
is likewise clear that the testatrix imposed an
obligation on Jorge and his successors-in-interest to
deliver 100 piculs of sugar to PR during the latters
lifetime.
Jorges inheritance and the effectivity of his
institution as a devisee, dependent on the
performance of said obligation. It is clear, though,
that should the obligation be not complied with, the
property shall be turned over to the testatrix near
descendants. The manner of institution of Jorge
under the codicil is evidently modal in nature
because it imposes a charge upon the instituted heir
without, however, affecting the efficacy of such
institution. To some extent, its similar to a
resolutory condition.
Article 883. When without the fault of the heir, an institution referred to in
the preceding article cannot take effect in the exact manner stated by the
testator, it shall be complied with in a manner most analogous to and in
conformity with his wishes.
If the person interested in the condition should prevent its fulfillment,
without the fault of the heir, the condition shall be deemed to have been
complied with. (798a)
Article 884. Conditions imposed by the testator upon the heirs shall be
governed by the rules established for conditional obligations in all matters
not provided for by this Section. (791a)
Article 885. The designation of the day or time when the effects of the
institution of an heir shall commence or cease shall be valid.
In both cases, the legal heir shall be considered as called to the succession
until the arrival of the period or its expiration. But in the first case he shall
not enter into possession of the property until after having given sufficient
security, with the intervention of the instituted heir.


65

LEGITIME

Article 886. Legitime is that part of the testator's property which he cannot
dispose of because the law has reserved it for certain heirs who are,
therefore, called compulsory heirs.
Article 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to their
legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants,
with respect to their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal
fiction;
(5) Other illegitimate children referred to in article 287.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded
by those in Nos. 1 and 2; neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes mentioned,
shall inherit from them in the manner and to the extent established by this
Code.

Who are the COMPULSORY HEIRS?
Legitimate children and descendants, with respect to
their legitimate parents and ascendants
legitimate parents and ascendants, with respect to
their legitimate children and descendants
The widow or widower
Illegitimate Children (the law speaks of acknowledge
natural children, natural children by legal fiction and
spurious children, but this classification has been
abolished under the FAMILY CODE)
o The classification of acknowledge natural
children, natural children by legal fiction
and spurious children will be relevant if
death takes place PRIOR TO THE FAMILY
CODE, then we also apply the sharing
involve under the CIVIL CODE. Before the
effectivity of the FAMILY CODE- before
AUGUST 1988.

We have a hierarchy of compulsory heirs, the hierarchy will
be between the so called:
Primary Compulsory heirs- they are given priority
over the so-called secondary heirs
o Legitimate Children and descendants
Secondary Compulsory heirs
o Legitimate parents and ascendants

Note: the legitimate parents and ascendants as well as
legitimate children and descendants are all in the same line.
The DIRECT LINE.

Legitimate parents and ascendants

Legitimate children and descendants

The Legitimate Children and descendants prevails over the
Legitimate parents and ascendants because of the principle in
law that love descends. We love more those who come
after us

What is the consequence of that principle?
So if there are legitimate parents and/or ascendants
and there are legitimate children and/or
descendants, the legitimate parents and ascendants
are out of the picture or they are excluded

Would there be any compulsory heir that will exclude
legitimate parents and ascendants?
None, only legitimate children and descendants

The Parents can inherit together with the surviving spouse.
The parents can also inherit with illegitimate children.

Supposing only legitimate descendants (grandchild) as
against parents, will the parents be excluded?
Yes

If we notice when it comes to ILLEGITIMATE CHILDREN, we
are limited to CHILDREN unlike in LEGITIMATE CHILDREN AND
DESCENDANTS, PARENTS AND ASCENDANTS, this is because
of the IRON CURTAIN RULE.

Iron Curtain Rule- a bar prohibiting an illegitimate child from
succeeding to the inheritance of the legitimate children and
relatives of the parents and vice versa

Direct Line
Collateral line

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Testator (decedent)

A B

C D E F

G H I

Legends:

Theoretically, the right to legitime is limited up to B. so that if
he has other descendants, they cannot inherit anymore but
this ha to give way to the so-called RIGHT OF
REPRESENTATION.

B can be represented by E and F
A can be represented by C only, not by D because of the
illegitimate relation with A.

Why is there such a situation? Why is it that F can represent B
But D cannot represent A, when F is also illegitimate like D?
Because there is an explicit provision in the law, that
both a legitimate (G) and illegitimate (F) children or
an ILLEGITIMATE child (B) may represent him (B).
however a Legitimate Child (A) can only be
represented by his own Legitimate Child (C).

Indeed, there is an inherent unfairness, but that
what the law says. The law gives more expanded
rights to the illegitimate children when it comes to
the right of representation.

Another Example:

A and B - Legitimate Children of the Decedent
C - Illegitimate Children of the decedent

D, E, F and G- Grandchildren of the decedent

D- Legitimate child of A
E- illegitimate child of A

F- Legitimate child of C
G- illegitimate child of C

Decedent

A B C

D E F G

A- was disinherited
C- predeceases the decedent

We have disinheritance and predecease that opens the right
of representation

Who shall be the representative for A?
Only D, because E is barred from representing A,
because under the law being an illegitimate relative
(E) of a legitimate child (A), he (E) cannot inherit
from the legitimate relatives (decedent) of the
legitimate child (A)

Who shall represent C?
Both F and G, because the law so provides

Remember: the peculiarly does not stop in this case, not
because F and G can represent means that they already have
equal rights in sharing.

In right of representation only allows us to determine who
shall be inheriting but the rule relating to their shares would
still be governed by the ordinary rules on legitime.

How should they (F & G) share in the legitime that should
have gone to C?
Proportionate, not : because it will only gives us
. It will be 2/3 and 1/3.

Why is it 2/3 and 1/3?
We apply the ratio 2:1, the illegitimate child is only
entitled to the half of the legitime of the illegitimate
child

Supposing that the legitime of C is 36M.
F will get 24M
G will get 12M

Legitimate Illegitimate

67

WILLS14

Compulsory Heirs
Legitimate children and descendants
Legitimate Parents and ascendants
Surviving Spouse
Illegitimate Children

If the decedent or testator is illegitimate there would be no
changes to the line up of the compulsory heirs stated above
except that the parents which were referred to as illegitimate
parents are reduced to the category of secondary compulsory
heirs even with regard to legitimate children, in other words,
illegitimate parents may be exclude by any kind of children of
the decendent

Rule of Proximity- not all descendants will be entitled to
inherit. Rule of proximity applies in both Compulsory and
Intestate Succession. the nearer excludes the farther

Decedent

Children

Grand Children

Great Grand Children

Who shall inherit if there are children, Grand Children and
great grand children?
Children, because they are nearest in degree among
the descendants, they exclude grand children and
great grand children.

When do grand children and great grand children will inherit?
Only when there is vacancy in the level above them,
they cannot inherit so long as the level above them
is occupied.

What is the exception of the rule of proximity?
Right of representation. If right of representation is
applicable, there is some kind of opening that allows
those who are farther in degree that would inherit
along side with those who are nearer in degree.

Illustration of right of representation

Decedent

C1 C2 C3

GC1 GC2 GC3 GC4

C1 and C2- children of the decedent
GC1, GC2, GC3, GC4- grand children of the decedent

* note- the above description (C1 and C2- children of the
decedent and GC1, GC2, GC3, GC4- grand children of the
decedent), in succession, we SHALL refer to all protagonist in
relation to the decedent or testator. ALWAYS REFER TO THE
DECEDENT.

C3- predeceased the decedent

Ordinarily only C1 and C2 will inherit because they are the
descendants nearest in degree, however in compulsory
succession there is a right of representation in favor of
children of those children that cannot inherit.

So, by virtue of right of representation GC3 and GC4 will be
elevated to the level of C3, because they are representing C3
in the succession to the estate of the decedent.

Decedent

C1 C2 C3

GC1 GC2 GC3 GC4

What if the vacancy takes place in the ascending line? Do we
also observe the rule of proximity in the ascending line?
Yes

Illustration:

MGF- Maternal Grand Father
MGM- Maternal Grand Mother
PGF- Paternal Grand Father
PGM- Paternal Grand Mother
elevated

68

MGF MGM PGF PGM

Mother Father

Decedent

Father- predeceased the decedent

What happens to the share that should go to the father?
It goes all to the mother, the legitime of the mother
and the legitime of the father

Can there be a representation by the Paternal Grand parents?
No, because there is no right of representation in the
ascending line

The rule of proximity still applies because the mere fact that
the mother bars the grand parents from inheriting

But in this case, we are not applying the exception of rule of
proximity which is the right of representation because there
is no right of representation in the ascending line.

Who are considered legitimate children?
Children conceived or born during the marriage of
the parents are legitimate. (Art 164, Family Code) It
is sufficient either birth OR conception takes place
within a valid marriage.
Only children conceived and born outside of wedlock
of parents who, at the time of the conception of the
former, were not disqualified by any impediment to
marry each other may be legitimated (legitimated
Children). (Art 177, Family Code) the effect of
legitimation makes them legitimate as well.
Legitimation retroacts from the date of birth

Who are considered illegitimate children?
General Rule: Children conceived and born outside a
valid marriage are illegitimate. (Art 165, Family
Code)
Exceptions:
if the ground for nullity is psychological
incapacity (art. 36, family code)
if the ground for nullity is contrating a
subsequent marriage without complying
with the requisites imposed under Art. 52
and 53 of the Family Code. (Art. 54, Family
Code)

Who are considered surviving spouse?
If the law only considers a spouse if there is a valid
and subsisting marriage. Common-law marriages are
not recognize under our law

Supposing that the marriage between the spouses is null and
void, can it still be questioned?
Yes, in a petition for declaration of nullity only the
spouses can question the marriage. Heirs can
question the marriage in the settlement of the
estate of the deceased spouse

NIAL VS BADAYOG
A null and void marriage is always subject to direct
and collateral attack which cannot be said of to
voidable marriage and in marriage which has a
ground for legal separation.
Only those parties to the marriage have standing to
file a petition for nullity

Reconciling NIAL VS BADAYOG and CARLOS VS SANDOVAL
Validity of the Marriage can be attacked by filing a
petition for declaration of nullity by the parties to
the marriage and by the Heirs in the settlement of
the estate of the deceased spouse.
When the heirs attacked the validity of the marriage,
such heirs are acting for the purpose of their
inheritance, they are not really concerned about the
nullity of the marriage, they are after is their
inheritance which stands to increase if they are able
to get the spouse out of the picture.
If there is no surviving spouse, the free portion will
increase and if there are no other heirs, they will get
the entire estate to themselves.

ROSALES VS ROSALES
A widow is not an intestate heir of her mother-in-law
because the compulsory heirs in Art. 887 must be
related to the decedent. The Surviving spouse is
considered a 3
rd
person as regards to the estate of
the parent-in-law.

LAPUZ VS EUFEMIO
An action for legal separation is a purely personal
action which cannot be continued by the heirs. Being
personal in character, it follows that the death of
one party to the action cause the death of the action
itself.
An action for legal separation is abated by the death
of the plaintiff, even if property rights are involved,

69

is that these rights are mere effects of a decree of
separation, the source being the decree itself;
without such decree such rights do not come into
existence because they are mere expectancy.

BARITUA VS CA
the obligations of Baritua are extinguished by the
payment made in favor of the successors-in-interest.
The surviving spouse and legitimate son are the
successors-in-interest referred to in law and not the
parents of the deceased because parents only
succeed only when the decedent died without
legitimate descendants.
Mere estrangement is not a legal ground for the
disqualification of surviving spouse as an heir.

Legitime of the Compulsory heirs

How much is the share of a Compulsory heir who does not
inherit with any other compulsory heir?
Ordinarily, of the estate of the deceased

The sharing depends on the number of other compulsory
heirs and the identity of the other compulsory heirs.

If the decedent has legitimate children it is automatic that
they get the of the estate. In the absence of the legitimate
children, if the decedent has legitimate parents,
automatically the parents inherits the of the estate.

Is the surviving spouse alone stands to inherit, how much
should the surviving spouse inherits?
General Rule: of the estate
Exception: when the marriage between spouses is in
articulo mortis and the decedent died within 3
months after the celebration of the marriage- the
surviving spouse will get 1/3 of the estate
Rationale: to avoid marriages purely for
financial gain
Exception to the exception: if, prior to the marriage,
the spouses cohabited as husband and wife for more
than 5 years, the surviving spouse will get of the
estate
Rationale: the suspicion of financial profit
motive is more or less erased
Cheezy Rationale: the marriage in articulo
mortis was done out of love and not out of
material benefit

What is a marriage in articulo mortis?
That one of the spouse is at the danger of death AND
the person is actually dying

What happens if it is the surviving spouse who killed the
decedent who is in the verge of death when they contracted
the marriage?
The surviving spouse will not inherit from the
decedent, because (discussion will be in the capacity
to inherit)
Article 892. If only one legitimate child or descendant of the deceased
survives, the widow or widower shall be entitled to one-fourth of the
hereditary estate. In case of a legal separation, the surviving spouse may
inherit if it was the deceased who had given cause for the same.
If there are two or more legitimate children or descendants, the surviving
spouse shall be entitled to a portion equal to the legitime of each of the
legitimate children or descendants.
In both cases, the legitime of the surviving spouse shall be taken from the
portion that can be freely disposed of by the testator.

Sharing:
1 Legitimate Child- of the estate
Surviving Spouse- of the estate
Legitimate Parent

The legitimate parent will not get anything because they are
excluded by the legitimate child

Surviving
Spouse,1/4
1 Legitimate
Child, 1/2
Marriage in
Mortis Causa?
No, Marriage in
Articulo Mortis

70

Sharing:
4 legitimate children of the estate which is divided by 4
Surviving Spouse- portion equal to legitime of a legitimate
child

Hence
4 legitimate children- the of the estate will be divided into
4 (share of the legitimate children 4 legitimate children =
1/8 of the estate)
Surviving spouse- portion equal to legitime of each legitimate
child is 1/8

Where do we get the share of the surviving spouse?
From the free portion

Sharing:
8 illegitimate children of the share of a legitimate child

Formula (share of one legitimate child):
of the estate 4 = 1/8

Formula (share of one illegitimate child):
Share of one Legitimate Child 2 = 1/16

Formula (total shares of Illegitimate Children):
1/16 (Share of one illegitimate child) * 8 =

Total Share of:

Individual shares of each legitimate children and each

The entire free portion will now go to the entire illegitimate
children. We get the share of the illegitimate children to the
free portion.

Sharing:
8 illegitimate children of the share of each legitimate
children
Surviving Spouse- portion equal to share of a legitimate child

Formula (share of one legitimate child):
of the estate 4 = 1/8

Formula (share of one illegitimate child):
Share of one Legitimate Child 2 = 1/16

Formula (total shares of Illegitimate Children):
1/16 (Share of one illegitimate child) * 8 =
Surviving
Spouse, 1/8
Legitimate
Children, 1/2
SS, 1/8
4th LC,
1/8
3rd LC, 1/8
2nd LC, 1/8
1st LC,
1/8
Illegitmate
children, 1/2
Legitimate
Children, 1/2
8th IC,
1/16
7th IC, 1/16
6th IC, 1/16
5th IC, 1/16
4th IC, 1/16
3rd IC, 1/16
2nd IC, 1/16
1st IC, 1/16
4th LC, 1/8
3rd LC, 1/8
2nd LC, 1/8
1st LC,1/8

71

Share of the Surviving Spouse is 1/8 because it is the portion
equal to the share of a legitimate child

In the above case, total share of illegitimate children is of
the estate and the surviving spouse is also entitled 1/8 of the
estate. It exceeds the entire free portion.

So what do we do?
We reduce the shares of the illegitimate children
proportionately

Why?
Because the law itself expresses preference in favor
of the surviving spouse, by stating that the legitime
of the Surviving spouse should be satisfied ahead of
the legitime of the illegitimate children, because the
law acknowledges the injustice in the surviving
spouse

Total shares of legitimate children, illegitimate children and
surviving spouse

Individual Shares of each legitimate children; share of the
surviving spouse and total share of the illegitimate children

So we divide the remaining portion the illegitimate children.
So their share will suffer reduction.

Individual Shares of each legitimate children, surviving spouse
and illegitimate children

Sharing:
Legitimate Parents alone- of the estate

Sharing:
Legitimate Parents of the estate
Surviving Spouse of the estate

Sharing:
Surviving Spouse 1/8 of the estate
Illegitimate Children of the estate

Sharing:
Illegitimate Children of the estate

Sharing:
Illegitimate Children 1/3 of the estate
Surviving
Spouse,1/8
Illegitimate
Children , 3/8
Legitimate
Children, 4/8
or 1/2
Surviving
Spouse, 1/8
Illegitimate
Children
4th LC,
1/8
3rd LC, 1/8
2nd LC, 1/8
1st LC,
1/8
SS, 1/8
4th LC,
1/8
3rd LC, 1/8
2nd LC, 1/8
1st LC,
1/8
SS, 1/8
IC, 1/4
Free portion
is 1/8
LP, 1/2
Shares of
each
illegitimate
child
Note: do the
Math

72

Sharing:
Illegitimate Children alone 1/2 of the estate

Sharing:
Illegitimate Parents alone 1/2 of the estate of their
illegitimate child

Sharing:
Illegitimate Parents - 1/4 of the estate of their illegitimate
child

COMPUTATION OF LEGITIME
Article 908. To determine the legitime, the value of the property left at the
death of the testator shall be considered, deducting all debts and charges,
which shall not include those imposed in the will.
To the net value of the hereditary estate, shall be added the value of all
donations by the testator that are subject to collation, at the time he made
them.
Article 909. Donations given to children shall be charged to their legitime.
Donations made to strangers shall be charged to that part of the estate of
which the testator could have disposed by his last will.
Insofar as they may be inofficious or may exceed the disposable portion, they
shall be reduced according to the rules established by this Code.
Article 910. Donations which an illegitimate child may have received during
the lifetime of his father or mother, shall be charged to his legitime.
Should they exceed the portion that can be freely disposed of, they shall be
reduced in the manner prescribed by this Code.

STEPS:
Make an inventory
What do we do if we conduct an inventory?
Determine the assets

If the decedent is married, distinguished which
belongs to the conjugal or community property and
which belongs to the decedent exclusively

After determining the total of conjugal or
community property, deduct the all the obligations
chargeable to the conjugal partnership or
community property.

After deducting, divide the total or net total by 2, the
will represent the share of the married decedent

After getting the quotient, add it to the exclusive
property

The sum is the assets

Deduct the assets to all personal obligations or debts, the
answer will be called net available assets

To get the net hereditary estate- we need to collate the
donations that he has made during the decedents lifetime

What is collate?
For purposes of computation it means adding the
value of the property that has been donated by the
decedent during his lifetime

Collation means bringing back the value as well as imputing
the value of the donation either to the legitime or the free
portion

What value do we use?
The value must be that at the time of the donation,
since donation conveys ownership upon knowledge
by the donor of the acceptance by the donee. The
done will suffer the loss or increase of the value of
the thing donated following the principle of res
sperit domino (owner bears the risk of loss)

Do we physically bring back the property itself?
No, just the value

After adding the value of the collated property, we will
arrived at the NET HEREDITARY ESTATE

NET HEREDITARY ESTATE- the basis of the computation for
the legitime


73

PROBLEM SOLVING

Decedent
Wife W
A
B
C
D
E
F

G legitimate Child of A
H Illegitimate Child of A
I Legitimate Child of E
J Legitimate Child of E

A- Predeceased the decedent
E- Predeceased the decedent

Conjugal Assets- 100M
Personal Obligations- 10M

Donation inter vivos TOTAL = 8M
4M in favor of F (illegitimate child of the decedent)
4M in favor of ex girlfriend

Last will and testament states that I bequeath as a legacy to
Atty. Masilungan the amount of 6M

Atty. Masilungan is a witness to the will, the will is attested by
3 OTHER witnesses

Note: if the will is attested by 3 witnesses including Atty.
Masilungan, she will not inherit.

ILLUSTRATION:

? Decedent Wife

E F A B C D

I J G H

Procedure:
1. Make an inventory
Conjugal Assets 2 = decedents assets
100M 2 = 50M
Decedents assets is 50M
2. Deduct the assets to all personal obligations or debts
Decedents assets Personal obligations =
Net available assets
50M 10M = 40M
Net Available Assets is 40M
3. Collate all donations inter vivos
Net available assets + value of the donation
inter vivos = Net hereditary Estate (NHE)
40M + 8M (total of 4M in favor of F + 4M in
favor of ex girlfriend) = 48M
NHE is 48M

Legitimate Children (LC) will get of the estate
NHE 2 = total shares of the LC
48M 2 = 24M
Total shares of the LC is 24M

Total shares of the LC number of LC = individual share of
each LC
24M 4 = 6M
Individual share of each LC is 6M

Wife will get the same share of a legitimate child
Share of the wife is 6M

Illegitimate children (IC) will get of the share of a legitimate
child
Individual share of one LC 2 = individual Share of
each IC
6M 2 = 3M
Individual Share of each IC is 3M

Individual share of each IC * number of IC = Total shares of
illegitimate children
3M * 2 = 6M
Total shares of illegitimate children is 6M

So, total shares of legitimate children, surviving spouse and
illegitimate children

Surviving
Spouse, 6M
Illegitimate
Children, 6M
Legitimate
Children,
24M
Legitimate children
of the decedent
of the decedent

74

Since A and E predeceased the decedent, right of
representation comes in

Legitimate Children individual Shares
G (right of representation) 6M
H gets nothing, because he cannot represent A (iron
curtain rule)
B 6m
C 6m
D 6m

Surviving Spouse 6M

Illegitimate children individual shares
E 3M (predeceased)
o Right of representation
I 2m (2/3 of the legitime of E)
J 1m (1/3 of the legitime of E)
F 3M

So, individual shares of all Compulsory Heirs

Imputation of such collationable donations unless otherwise
provided by the testator

If the testator otherwise provides that such donation made in
favor of a compulsory heir, it will not be imputed in the
legitime, there will be still imputation but such imputation
will be on the Free Portion
Value of Donation in favor of a Compulsory heir
Legitime = excess of the donation which will be
imputed to the free portion

F was given 4M donation intervivos
4M 3M = 1M
Excess of the donation which will be imputed to the free
portion is 1M

Free Portion Donation made in favor of strangers Excess
of the value of Donation made in favor of a Compulsory Heir
= Absolute Free Portion
12M 4M 1M = 7M

Absolute Free Portion is 7M

So:

Legitimate Children individual Shares
G (right of representation) 6M
H gets nothing, because he cannot represent A (iron
curtain rule)
B 6m
C 6m
D 6m

Surviving Spouse 6M

Illegitimate children individual shares
E 3M (predeceased)
o Right of representation
I 2M (2/3 of the legitime of E)
J 1M (1/3 of the legitime of E)
F 3M

Absolute Free Portion is 7M

SO: Final Shares of all Compulsory Heirs and the Absolute free
portion

Is the Absolute Free Portion (AFP) is sufficient to answer the
legacy of 6M?
Yes

SS, 6M
I, 2M
J, 1M
F, 3M
D, 6M
C, 6M
B, 6M
G, 6M
SS, 6M
I, 2M
J, 1M
F, 3M
Imputed
Collationable
Donations,
5M
AFP, 7M
D, 6M
C, 6M
B, 6M
G, 6M

75

Do we need to reduce any of the legacies?
No

Do we need to revoke any of the donations?
No

When do we need to revoke any of the donations?
If it exceeds the legitime

When does that happen?
If it goes beyond the free portion

If it exceeds to the available free portion, it already infringes
the legitime and it is needed to reduce to the extent of the
infringement.

Who will the get 1M?
The intestate heirs

Who will be the intestate heirs?
The compulsory heirs, because the compulsory heirs are
necessarily the closest intestate heirs

SS, 6M
I, 2M
J, 1M
F, 3M
Imputed
Collationable
Donations,
5M
Legacy, 6M
Excess , 1M
D, 6M
C, 6M
B, 6M
G, 6M

76

WILLS15
PROBLEM SOLVING NO.2

Henry
Wilma
A
B
C
D Illegitimate child

During their Marriage they are able to accumulate the
following properties:
House and lot 5M
Parcel of Land 3M
Shares of Stock 3M
Bank deposits 3M
2
nd
House and Lot 2M

Before Henry died he accumulated expenses:
Hospital expenses 600K
He is a breadwinner of the family he incurred debts
Debts 1M

Donations made by Henry during his lifetime
In favor of best friend 800K
In favor of A 400K

In his Will, the following legacies
Legacy1 2M
Legacy2 1M

Illustration

? Henry Wilma

D A B C

Sharing:

Shares of Compulsory Heirs

Individual Shares of each Compulsory heirs

Procedure
Make an Inventory
House and lot 5M
Parcel of Land 3M
Shares of Stock 3M
Bank deposits 3M
2
nd
House and Lot 2M
Total 16M

All expenses and debts are chargeable against the
community property or conjugal partnership. (see art.
94, 95,121,122 and 123 of the Family Code)

Total Hospital expenses debts = Conjugal assets
16M 600k 1M = 14.4M
Conjugal assets is 14.4M

Conjugal Assets 2 = Decedents assets
14.4 2 = 7.2M
Surviving
Spouse, portion
equal to a
legitimate child
Illegitimate
Child, 1/2 of
the share of
one legitimate
child
Legitimate
Children, 1/2 of
the estate
Wilma, 1/6
D, 1/12
C, 1/6
B, 1/6
A, 1/6
Spouses
Legitimate children
of the decedent

77

Decedents assets is 7.2M

Decedents assets personal obligations or debts = Net
Available Assets
7.2M 0 = 7.2M
Net Available Assets is 7.2M

(Note: if there are personal obligations or debts (those
not chargeable against the community property or
conjugal partnership) of the decedent, such liabilities
should be deducted in the decedents assets. In this case,
we have no personal liabilities)

Collation
Net Available Assets + Donation in favor of best
friend + Donation in favor of A = Net Hereditary
Estate
7.2M + 800k + 400K = 8.4M
Net Hereditary Estate is 8.4M

Shares of Compulsory Heirs
Legitimate Children of the estate
8.4M 2 = 4.2M
4.2M 3 = 1.4M
o A 1.4M (it will be 1M after we impute the
donation)
o B 1.4M
o C 1.4M
Surviving Spouse portion equal to one legitimate
child
o Wilma - 1.4M
Illegitimate Child of the share of one legitimate
child
o D 700K
Free Portion 2.1M

Collation by imputation
Donation made in favor of a Compulsory heir, imputed in
his legitime
Share of the CH deducted to Donation inter vivos in
favor of such CH
1.4M 400K = 1M
Share of A is 1M because such donation inter vivos is
considered as an advance to his legitime.
There is no provision in the will of the testator that
such donation inter vivos made in favor of A shall be
imputed to the free portion, hence in the absence of
such provision such donation will be imputed to his
legitime.
We will only impute donation made in favor of a
compulsory heir to the free portion if the testator if
the testator provide it for that imputation otherwise
we impute it to the legitime because the donation is
taken to be as an advance of the legitime.
Even if there is no provision in the testators will that
the donation in favor of the compulsory should be
imputed to the free portion if the donation exceeds
to the legitime. (like in problem solving #1) If it
exceeds the legtime then we will impute the excess
to the free portion.
Donation made in favor of a stranger, imputed in the free
portion
Free Portion deducted to Donation inter vivos in
favor of the stranger
2.1M 800K = 1.3M

Absolute Free portion is only 1.3M

Is the Absolute Free Portion (AFP) is sufficient to answer the
legacies in total of 3M?
No

Why do we impute the donation first before we distribute the
legacies?
Because donations are given preference over devises and
legacies

How do we reduce the legacies? Do we reduce them equally?
No, reduce them proportionately, pro-rata

Article 911 legacies and devises will be reduced pro rata.
We apply this article whenever there are compulsory heirs
and there is a danger of impairing the legitime

Article 950 there is a hierarchy of legacies, we apply this
article if the only dispositions are only legacies or devises

General Rule: Legitime is inviolable, the testator cannot
impose burdens, conditions and charges.
Exception:
it can be burden by a prohibition against partition
Art. 1080 par. 2 - A parent who, in the interest of his or her
family, desires to keep any agricultural, industrial, or
manufacturing enterprise intact, may avail himself of the right
granted him in this article, by ordering that the legitime of the
other children to whom the property is not assigned, be paid in
cash.
Restriction on the legitime imposed by law
o Art. 159 of the Family Code
o Reserva Troncal


78

Reserva Troncal

Article 891. The ascendant who inherits from his descendant any property
which the latter may have acquired by gratuitous title from another
ascendant, or a brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of relatives who are
within the third degree and who belong to the line from which said property
came.

What is Reserva Troncal?
The ascendant who inherits from his descendant any
property which the latter may have acquired by
gratuitous title from another ascendant, or a brother or
sister, is obliged to reserve such property as he may have
acquired by operation of law for the benefit of relatives
who are within the third degree and who belong to the
line from which said property came.

Who are the personalities/parties in Reserva Troncal?
Origin
Praepositus
Reservista
Reservatarios

What is the purpose of reserve troncal?
To prevent the property from passing from one family to
the other or from one line to another to the other.

Ascendant (Reservista) inherited the reserve property from
his descendant (praepositus) by operation of law

Are we concerned about the transfer from the descendant
(praepositus) to ascendant (reservista)?
Yes, it should be by operation of law

Example of Gratuitous title but not by operation of law
Testamentary Dispositions

By operation of law, we are only limited to what modes of
transfer?
Intestate Succession and Compulsory Succession

When would intestate or compulsory succession happen?
When the praepositus died without a will and without an
issue, meaning he has no descendants.

Are we concerned with where the praepositus got the
property?
Yes, because for reserve troncal to be effective the
property should come from ANOTHER ascendant or
brother or sister

What is the significance of this ANOTHER ASCENDANT?
The property should NOT come from the Reservista, it
should come from another ascendant. 2 different
ascendants are involved in reserve troncal. Ascendant as
reservista and ascendant as the origin of the property.

What is the mode of transfer from the origin to the
praepositus?
Gratuitous Title

What kind of transfer do we have in gratuitous title?
Donation Inter vivos
Testamentary Succession

What is gratuitous title?
The consideration is the liberality or generosity of the
donor

Personalities in Reserva troncal
Origin Source of the property, it is another
ascendant or brother or sister from whom the
praepositus get the property. We are concerned on
how the property is transferred and such transfer
must be by gratuitous title.

Praepositus it is the descendant of the Reservista.
The Praepositus should not have any issue. He is also
called the arbiter of the reserva because he actually
has the power to prevent reserve troncal by
disposing such property. It is not necessary that such
disposition in order to prevent reserva troncal must
be during the lifetime of the praepositus, it can be by
mortis cause meaning by a valid last will and
testament.
If the praepositus disposes it mortis causa, can he
dispose of it in favor of the ascendant and still
prevent reserva troncal?
Yes, by a valid last will and testament. There will
be no reserve troncal because the transfer
between the praepositus and reservista is not by
operation of law.

Reservista he is the ascendant of the praepositus.
What right does he have over the reserve property?
Ownership but subject to a resolutory condition

What is the resolutory condition?
At the time of death of the reservista, there are
reservatarios surviving him.

How would that affect the ownership if there are
reservatarios surviving?
Ownership is extinguished

79

Reservatarios they are the beneficiaries of the
reserve property
Who are the reservatarios?
Relatives by third degree of the praepositus

Is it necessary that the reservatarios are blood
relative of the reservista?
No, but it is possible that they are blood related

What properties can be a subject of reserve troncal?
Either real or personal properties

The problem arises when the praepositus decides to make
the reservista as sole heir in the entire estate because the
properties will be transferred by 2 modes

What are these 2 modes?
By operation of law and testamentary disposition

Usually the estate of the decedent is composed of different
properties, house and lot, money etc the problem is how do
we determine which property would fall as legitime and
properties which would fall in the free portion.

Is that determination material?
Yes, because we need to determine the property
previously acquired by the praepositus would be subject
to reserva troncal.

It is easy if the testator singled out the properties.

Example: the property is house and lot named as property A
I bequeath this property A to my father as a devise
(automatic it is not covered as a legitime of the father
because by express provision in the will this goes by way of
devise, it will not be by operation of law)

2 theories
Reserva Maxima
Reserva Minima

Reserva Maxima- we try to put into the legitime as much as
possible of the reservable property, so if the entire estate is
worth 40M; the reservable property is worth 30M, we put all
reservable property as passing thru the legitime then all other
properties will now form part of the free portion.

Reserva Minima- proportionate; all property passing to
reservista must be considred as passing partly by operation of
law and partly by will, hence of the property gratuitously
acquired from the origin should be reservable and the other
should be free.

Supposing that the reservista had died, would there be
another proceeding that must be initiated to establish the
right of the reservatarios?
None, specially when there is a decree of registration on
the right of reserve troncal

Upon the death of the reservista the right of the reservatarios
vest automatically

As among our reservatarios, how do we determine who shall
inherit? Remember: the purpose of the rules in reserve
troncal is to determine who the resevatarios are but among
themselves we determine better right in accordance with
intestate succession.
Who are the reservatarios?
Relatives by third degree of the praepositus

Great Grand Parent (3
rd
degree)

Grand Parent (2
nd
degree)

Parent (1
st
degree) Uncles/Aunts (3
rd
degree)

Cousins (4
th
degree)

Praepositus Brother/Sisters (2
nd
degree)

Nephews/Nieces (3
rd
degree)

Computing the degree, determine how many people from the
praepositus then deduct 1

Example:
Praepositus 1
st
person
Parents 2
nd
person
Grand Parent 3
rd
person

3 people minus 1 (3 1) = 2, so grand parent being the last
counted is 2
nd
in degree
Relatives in the
direct line
Relatives in the
collateral line

80

1
st
degree parents
2
nd
degree brother/sister, grand parents
3
rd
degree - uncles/aunts, nephew/nieces, great grand
parents

All reservatarios are all related legitimately to praepositus

Supposing that the reservista was survived by brothers/sister
and nephew and nieces, who shall inherit?
Brothers and sisters

Is there any way by way of exception that nephews and nieces
can also inherit with the presence of brothers/sisters?
Yes, by way of right of representation

Is there a right of representation in the collateral line?
Yes, but only in favor of nephews and nieces

Remember: nephews and nieces exclude uncles and aunts. If
there are nephews and nieces, uncles and aunts cannot
inherit

What other rules do we apply in resevatarios?
Rules of proximity
Right of representation
Sharing of full blood relatives and half blood
relatives

SOLIVIO VS CA
Reserve troncal applies to property inherited by an
ascendant from a descendant who inherited it from
another ascendant or a brother/sister. It does not apply
to property inherited by a descendant from his
ascendant.
In this case, there is only one transfer because in reserva
troncal it requires 2 transfers, one by gratuitous title and
the other is by operation of law

WILLS16

PADURA VS BALDOVINO
The rules on intestate succession relating to the
sharing of the half-blood and full blood relatives
shall also be applicable when it comes to
determining the shares of the reservatarios. Those of
full be blood were to get twice as much of that of
the half blood.

Reserva Troncal merely determines the group of
relatives to whom the reservable property should be
returned. Within that group, since Art. 891 does not
specify, the individual right to the property should
be decided by the applicable rules of ordinary
Intestate Succession. Proximity of degree and the
right of representation are basic principles of
ordinary Intestate Succession. Hence, upon the
reservistas death, the property should pass, not to
all reservatarios as a class, but only those nearest in
degree to praepositus. And there is right of
representation on the part of reservatarios who are
within the 3
rd
degree from praepositus. So is the rule
that those of the full blood get double the share of
those of the half-blood, applicable.

FLORENTINO VS FLORENTINO
If the purpose of the law is to reserve the property in
favor of the resevatarios which is achieved if the
property lands in their hands why cannot the
reservista choose who among the reservatarios shall
inherit?
Because the reservatarios do not inherit
from the reservista. Upon the happening of
the condition (death of reservista ahead of
the reservatarios) all rights of ownership
vested over the reservista are terminated. It
does not form part of her estate. Since it
does not form part of her estate she does
not have the right to control its institution.

EDROSO VS SABLAN
In this case there was doubt on the right of
Marcelina to register the land in her name because
she is merely a reservista and the act of registration
is an act of ownerhip.
There is confusion regarding the rights acquired by
the reservista because of the fact that the property
is reserved in favor of the reservatarios. This seems
to mean that she is a mere usufructuary who does
not have the right to register the property in the
registry in her name.
Although registration is does not vest ownership, still
it is an act of ownership.
SC clarified that the reservista has complete
ownership over the property. He can possess use,
enjoy, recover and dispose conditionally the
property .

If the reservista disposes of the land registered in her
name to a 3
rd
person after the disposal the reservista
died, what happens to the right of ownership of the
acquired by the 3
rd
person?
There is a saying in law that the spring
cannot rise higher than its source. The
transferee cannot have better rights than
transferor.

81

The transferee is also subject to the
condition imposed upon the transferor
which is to reserve the property in favor of
the reservista.

If the reservista dies but there are reservatarios who
survived her what happens to the ownership
acquired by the 3
rd
person?
The ownership of the 3
rd
person is
transferred to the reservatarios

Is there a qualification in view of the nature of the
property involved?

Why did the reservatarios made an alternative
prayer?
The prayers was that the registration be
denied entirely OR if granted they should be
allowed to annotate the reserve on the title
of the property.

Generally ownership is transferred upon the
delivery. You cannot deliver what you do not have.
Otherwise stated you cannot transfer ownership to
something you do not own.

So that if you have already disposed of this in favor
of somebody else you cannot dispose of this anew
because you have lost the right of ownership even if
that other person is acting in good faith.

This rule is modified, if the property is covered by
the Torrens System because under this system a
buyer is not obliged to look beyond the title. So that
if title is clean without any annotation, burden,
transfers, mortgages, lien then it also makes it clean
and free.

If the reservable nature of the property is not
annotated on the title and the same is transferred to
the 3
rd
person, he is not bound by the reservable
nature of the property.

The right of the reservatarios and purpose of the
reserva will be defeated because that person can
invoke the clean title in his favor. He can say that he
has no knowledge, actual or constructive, about the
existence of the reserva.

Hence the resolutory condition attaching to the
property will not apply to him.

This is why the prayer was made in the alternative
to bind whoever gets the property from the
reservista.

SIENES VS ESPARCIA
This is a case of double sale. One made by the
reservista (Andrea Gutang) and the other made by
the reservatarios (Cipriana and Paulina Yaeso)

Only one of these sales can be given effect but both
are valid but conditional.

The condition refers to one and the same event, only
the effect would be different.

One will bring about extinguishment of the right of
the transferee of Andrea Gutang. On the other hand
it will give rise to the right of the transferee of
Cipriana and Paulina.

The condition is - whether or not there will be
reservatarios surviving the reservista at the time of
her death.

If Yes transfer Andrea will be extinguished because
it is subject to a resolutory condition. The transfer
made by Cipriana and Paulina will become effective.

If No transfer of Andrea will be effective (do not
answer that it is valid because the premise is both
sales are valid)

GONZALES VS CFI
In the probate of the holographic will (HW) of
Filomena Roces (reservista), Beatriz Gonzales (one of
the reservatario, daughter of Filomena) filed motion
to exclude from the inventory of her mothers estate
the reservable property because they should be
inherited by Filomena Legardas (praepositus)
brothers and sister and not by the grandchildren of
the reservista.

SC held that the reservista could not convey in her
HW to her grandchildren the reservable properties
because the same didnt form part of her estate.

Reservista cannot make a disposition mortis cause of
the reservable properties as there are reservatarios
existing. The latter dont inherit from the reservista
but from the praepositus. Hence upon reservistas
death, the reservatorios nearest in degree to the

82

praepositus become automatically and by operation
of law the owner of the reservable property.

CANO VS DIRECTOR
The sons of the reservista wanted to have a judicial
proceeding akin to settlement of intestate estate to
established that in fact the property in nature. Is this
proceeding required?
No, because there was already a
registration on title about the reservable
nature of the property so there is no doubt
about this reservable character; and even if
there is no such annotation you do not
need such proceeding because they do not
inherit from the reservista, they inherit
from the praepositus. Being the
reservatarios of the praepositus they
acquire the property automatically by
operation of law.

If there is conflict among the reservatarios and such
cannot be settled among themselves then it is
necessary to go to court and make a declaration of
their rights. But it is only with regard to their right as
against one another. No longer the issue of the
rights of the reservatario with regards to rest of the
world or the heirs of the reservista is no longer in
issue.

DISINHERITANCE

Article 915. A compulsory heir may, in consequence of disinheritance, be
deprived of his legitime, for causes expressly stated by law.

Compulsory heir may be deprived of his legitime only through
a valid disinheritance.

If a compulsory heir (CH) is disinherited what right remains in
him with respect to the estate of the testator? Disinheritance
is done at the end of the lifetime of the testator. He must
have made several dispositions already. He may have made
legacies or devises in favor of the Compulsory heir. He might
also have instituted the compulsory heir as one of his heirs or
universal heir. He may have revoked all his prior will so that
there is no will governing his estate in which case there is
intestacy. If we follow the provision in the law which says that
disinheritance deprives the compulsory heir of his legitime,
does it mean that if disinheritance is made its effect shall be
limited to a denial of the compulsory heirs right to his
legitime?
No. He is also denied a share in the free portion. He
cannot also inherit by intestate succession.

What about by testatamentary succession?
He cannot also inherit by testamentary succession.

Liken (compare) the compulsory heir to an employee, then
liken the legitime to basic wage the minimum standard
required by law. If you are not willing to give his employee his
minimum wage we can conclude that you do not want to give
the employee anything bonuses or increase in his minimum
wage.

If the testator does not want to give the CH the minimum
required by law, what more the additives or increases
represented by testamentary succession.

Article 916. Disinheritance can be effected only through a will wherein the
legal cause therefor shall be specified.

What are the requirements for a valid disinheritance?
made in a will/codicil
based on a cause that is legal, expressly stated in the
will, certain and true
total
unconditional

Why is it required that disinheritance be made in a will or
codicil?
Disinheritance is a disposition in favor of those who
shall inherit in the absence of CH. In terms of
effectivity, it is a kind of disposition mortis causa
(upon death) which according to law should comply
with the forms and solemnities affecting last will and
testament. This is also true with regards to
donations mortis causa basically made as a form of a
will.

It should expressly mention the cause it cannot be done
by implication. Testator is limited to the grounds stated under
the law. He cannot go outside of these grounds.

Why did the law limit the grounds for a disinheritance may be
made?
If the testator is given the discretion to determine
the grounds for disinheritance this will defeat the
purpose of the legitime. Because the testator can
deny the CH of his legitime for any ground at all.
Compulsory succession is compulsory upon the
testator, not upon the CH. Compulsory succession,
will no longer be compulsory anymore. It will be
totally dependent upon his discretion because he
can remove the legitime from his CH.

Should the cause be specified in details?
No, as long it is legal, certain and true.

83

Legal based on the grounds provided by law
True and Certain must exist in reality and it is provable
otherwise the heirs disinheritance is ineffective.

Example:
I disinherit may daughter B because she tried to kill me.
The details on how, when and where shall be supplied by the
evidence in case the disinherited heir contest the grounds.

If the testator narrates the details of the transgression of the
disinherited heir, will this invalidate the will?
No.

Total all or nothing.
Example:
The testator cannot say, I will deny you of your legitime.
The feelings of the testator cannot be severed

Unconditional Because this is in effect imposing a condition
upon the legitime. Testator is allowed to disinherit by virtue
of this provision in the, in effect you are allowed to burden
the legitime. But to impose additional condition is no
allowed. This is because the right to the legitime is basically
inviolable. It is only by way of exception that there is this
provision of disinheritance.

Article 918. Disinheritance without a specification of the cause, or for a cause
the truth of which, if contradicted, is not proved, or which is not one of those
set forth in this Code, shall annul the institution of heirs insofar as it may
prejudice the person disinherited; but the devises and legacies and other
testamentary dispositions shall be valid to such extent as will not impair the
legitime.

What is defective inheritance?
If the Testator:
does not specify the cause
Specified a cause but the truth of which is
not proved if contradicted
Specified a cause not one provided by law

What happen if the will in which the disinheritance is made is
null and void will that be an instance of defective
disinheritance?
No. No disinheritance at all. A last will and testament
is a requirement for a valid disinheritance.

In defective disinheritance there is compliance with the
requirements except for these 3 which relates to the cause
for disinheritance.

Is this the same as preterition?
In preterition there is an implied omission which the
law presumes to be involuntary.

In defective disinheritance - it is presumed
voluntary, because it is clear what the intention of
the testator is only that he failed to comply with
requirements of the law relating to the cause.

In preterition, the effect is to annul the institution of
heirs. Which annulment can give rise to intestate
succession except if there are devises and legacies
which will be given effect and allow testamentary
succession to the extent that are no impairment of
the legitime.

In defective disinheritance there is annulment of the
institution only to the extent that the defectively
disinherited heir may be prejudice.

Under preterition what can the preterited heir recover?
Preterited heir stands to gain more than his legitime
because he can even claim the free portion if
intestate succession were allowed to step in - If you
do not have any valid devices and legacies OR if
there are such they not cover the entire free portion.
In the end he gets his legitime plus share as intestate
heir

How about in defective disinheritance?
Disinherited heir only gets his legitime because the
institution of heirs remains valid to the extent that
there is no prejudice to the legitime of the CH. ____
legacies and devises.
Simply stated the disinherited heir is only entitled to
the completion of his legitime.

What is the effect of defective disinheritance on the prior
testamentary disposition made in favor of the defectively
disinherited compulsory heir and also with regard to his right
to succeed in the intestate succession?
2 Views:
1) Dr. Tolentino the defectively disinherited
heir is entitled to given all that he is entitled
to receive as if disinheritance had not been
made, w/o prejudice to lawful dispositions
made by the testator in favor of others.
2) Justice Caguioa the rule on disinheritance
were only meant to govern the right or
power of the testator w/ regard legitime so
that if he can effectively deny the legitime
because of defect in the way the
disinheritance was effected then what
should be affected should only be the right
of the CH to the legitime.


84

In other words failure to disinherit should only
restore the defectively disinherited heir to his right
to the legitime. All others he is deemed to have no
right anymore. It is clear what the intention of the
testator is he does not want the CH to get anything
from him and the only reason he has to disinherit is
because that is the only way for him to do so. But as
regard to testamentary dispositions he is not
burdened by the same strict requirements.

Article 919. The following shall be sufficient causes for the disinheritance of
children and descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an
attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(2) When a child or descendant has accused the testator of a
crime for which the law prescribes imprisonment for six
years or more, if the accusation has been found groundless;
(3) When a child or descendant has been convicted of adultery
or concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation,
or undue influence causes the testator to make a will or to
change one already made;
(5) A refusal without justifiable cause to support the parent or
ascendant who disinherits such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child
or descendant;
(7) When a child or descendant leads a dishonorable or
disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil
interdiction.

GROUNDS FOR DISINHERITANCE
CHILDREN/DESCENDANTS (legitimate/illegitimate)
Found guilty of an attempt against the life or
testator, his/her spouse ascendants/descendants

Law specified attempt against the life is this
limited to crimes in attempted stage?
The law does not reward him if he succeeds
the testator the right to disinherit him.

If it is argued, Dont just attempt, ensure that
he/she is killed so that there will be no ground for
disiheritance, is this a correct argument?
No. The inclusion of frustrated and
consummated stages is justified by the
provisions of the law that in case of doubt it
is presumed that the law making body
intend for right and justice to prevail.

If the crime committed against the testator and it
is consummated will this ground be applicable?
No. It is impossible for a dead person to
make will.

Accusation of a crime which law prescribes
imprisonment for 6 years, IF such is found to be
groundless

Are we concerned with the grounds of acquittal?
Yes. When the law says the accusation was
found groundless this means that the
acquittal should be based of the finding of
the court that the testator did not commit
the crime at all.
This is different from acquittal due to
reasonable doubt because in this case the
court still has doubts not just whether or
not you did not commit but also whether
you committed. It is possible that you
committed the crime but the burden of
proof was not met.

Convicted of adultery or concubinage with spouse of
the testator

Who could be the co-accused?
Spouse of the testator.

Is possible that the spouse is related to the child?
Yes

Who is this other person that the child could be
having an adulterous affair with?
Ideally the intention of the law is to govern
an illicit relationship between the step
parent and the child of the testator, BUT
the law is broad enough to cover illicit
relationship which are incest in nature.

Cause testator to make/change a will thru fraud
violence, intimidation or undue influence

Is it required that the will or changes will be made
favorable to the child?
No.

Fraud violence, intimidation or undue influence
follow the definition given in Obligations and
contracts

Refusal without unjustifiable cause to give support
to the testator

There should be concurrence between capacity of
the child/ascendant to give support and need of the
testator of support otherwise there is no ground for
disinheritance.

85

Maltreatment by word or deed

What is maltreatment?
It is not required that the physical injuries
are caused. There is intention to hurt the
testator but the effort was not enough to
inflict physical injuries upon him

Leading dishonorable or disgraceful life

It should be based on the objective standard as
defined by the prevailing norms of the society.

Conviction of a crime which carries with it penalty of
civil interdiction

What crimes are these?
Crimes which carries penalty of reclusion
temporal and up.
Article 920. The following shall be sufficient causes for the disinheritance of
parents or ascendants, whether legitimate or illegitimate:
(1) When the parents have abandoned their children or induced
their daughters to live a corrupt or immoral life, or attempted
against their virtue;
(2) When the parent or ascendant has been convicted of an
attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(3) When the parent or ascendant has accused the testator of a
crime for which the law prescribes imprisonment for six years or
more, if the accusation has been found to be false;
(4) When the parent or ascendant has been convicted of adultery
or concubinage with the spouse of the testator;
(5) When the parent or ascendant by fraud, violence, intimidation,
or undue influence causes the testator to make a will or to change
one already made;
(6) The loss of parental authority for causes specified in this Code;
(7) The refusal to support the children or descendants without
justifiable cause;
(8) An attempt by one of the parents against the life of the other,
unless there has been a reconciliation between them.

PARENTS/ASCENDANTS (legitimate/illegitimate)

Note: Some grounds are basically the same but there are
some grounds that is peculiar to parents or ascendants
Abandonment of Children; inducing daughters to live
corrupt/immoral life; attempt against virtue of
daughters

Actually the law is even gender specific, the law
mentions daughters however the word daughters
includes sons or male children.

Why should we include male children?
Because at the time that the civil code was
enacted male prostitutes are basically unheard
of and an attempt against the virtue of children
are usually directed against females, unlike
today

***
(transcribers notes)

Abandonment includes not merely the exposure of
the child or descendants to danger but also the
failure to give it due care or attention

Attempt against virtue conviction not required
because the child may not choose to make public her
ordeal and may just seek justice by disinheriting
the guilty parent or ascendants

***

Loss of parental authority

*** (transcribers notes)

Loss of Parental authority is a ground for
disinheritance only if there is fault on the part of the
heir

***

Attempt by one parent against life of the other

Would there be any ground to extinguish the right to
disinherit? When will this ground be not available?
Yes, in case of reconciliation between the
parents

Why would that prevent disinheritance if the
reconciliation is only between the parents?
Basically the child suffers collateral damage, he
is not the aggrieved party, and the aggrieved
party is the other spouse. If this aggrieved party
can find it in his heart to forgive the aggressor
more so the testator.


86

Article 921. The following shall be sufficient causes for disinheriting a spouse:
(1) When the spouse has been convicted of an attempt against
the life of the testator, his or her descendants, or ascendants;
(2) When the spouse has accused the testator of a crime for which
the law prescribes imprisonment of six years or more, and the
accusation has been found to be false;
(3) When the spouse by fraud, violence, intimidation, or undue
influence cause the testator to make a will or to change one
already made;
(4) When the spouse has given cause for legal separation;
(5) When the spouse has given grounds for the loss of parental
authority;
(6) Unjustifiable refusal to support the children or the other
spouse.

SPOUSE

Giving cause for legal separation

There is no need to bring an action for legal
separation what is required is only a cause

Family Code. Art. 55. A petition for legal separation may be
filed on any of the following grounds:
(1) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a common
child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel the
petitioner to change religious or political
affiliation;
(3) Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or
connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if
pardoned;
(5) Drug addiction or habitual alcoholism of the
respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines or
abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the
petitioner; or
(10) Abandonment of petitioner by respondent
without justifiable cause for more than one year.
Article 922. A subsequent reconciliation between the offender and the
offended person deprives the latter of the right to disinherit, and renders
ineffectual any disinheritance that may have been made.

What will be the effect of reconciliation between the testator
and the heir to be disinherited?
It deprives the testator of the right to disinherit if
the disinheritance is not made yet. The reconciliation
will prevent the testator from using this ground for
disinheritance.
It renders ineffectual any disinheritance already
made

When the law speaks of reconciliation, what does it envision?
How would we characterize reconciliation as an act?
Bilateral, it is not enough that the testator forgives; we
speak of reconciliation if the forgiveness is accepted. It
implies admission of guilt

Article 923. The children and descendants of the person disinherited shall
take his or her place and shall preserve the rights of compulsory heirs with
respect to the legitime; but the disinherited parent shall not have the
usufruct or administration of the property which constitutes the legitime.

If an heir is disinherited, what happens to the shares that
should have pertain to him?
If the disinherited heir has descendants the share will
pertain to his descendants by right of representation

Supposing that the child or descendants happens to be a
minor, what right does the father enjoy over the property of
the minor child? Will there be a right of usufruct?
None, because the law expressly said that there will be
no right of usufruct over the property inherited by the
representative

Independently with this provision of the law, would there be a
right of usufruct that the disinherited parent would enjoy?
Under the Family code, properties of minor children are
intended to be devoted to their support and their
education; there is no any longer right of usufruct

If the property enjoys fruits or income, it will be devoted
primarily to the needs of the children and secondarily to
the needs of the family


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Legacies and Devises

Article 924. All things and rights which are within the commerce of man be
bequeathed or devised.

What things can be a subject of a legacy devise?
Any property within the commerce of man

What do we mean by within the commerce of man?
Anything that can be a subject of appropriation

Legacies gifts of personal properties that are respectively
given by virtue of a will

Devises - gifts of real properties that are respectively given by
virtue of a will

Example of a property within commerce of man
Public street because it is intended for public use
Note: the fact that the property is owned by the
government does not make it outside the commerce of
man because government can also own property in its
proprietary capacity in which case it goes down to the
level of an ordinary juridical person
Illicit objects because you cannot enter into a valid
transaction
Article 925. A testator may charge with legacies and devises not only his
compulsory heirs but also the legatees and devisees.
The latter shall be liable for the charge only to the extent of the value of the
legacy or the devise received by them. The compulsory heirs shall not be
liable for the charge beyond the amount of the free portion given them.

Who is charged with the obligation to carry out the devise or
legacy?
By default it shall be the ESTATE. An estate is a juridical
person and it has to act thru an agent who is executor or
administrator

Why the estate?
Because it is the continuation of the personality of the
testator

Can the testator opt to specify some other person?
Heir chargeable
Legatee or devisee

What kind of heir are we speaking of here?
Essentially what the law is saying that only Voluntary Heir
can be charged with the burden of a legacy or devise.
The voluntary heir can be also a compulsory heir, but
that does not matter because we are only concerned
with their being voluntary heir for purposes of being
chargeable with burden of devises and legacy

Can devises and legacies be also burdened?
Yes, because just like the heirs, they also received under
the will of the testator and since they received from the
will of the testator then the testator can also exercise his
discretion and burden the legacies or devises with
whatever he wants because of his testamentary
privilege.

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

Article 930. The legacy or devise of a thing belonging to another person is
void, if the testator erroneously believed that the thing pertained to him. But
if the thing bequeathed, though not belonging to the testator when he made
the will, afterwards becomes his, by whatever title, the disposition shall take
effect.

Article 931. If the testator orders that a thing belonging to another be
acquired in order that it be given to a legatee or devisee, the heir upon
whom the obligation is imposed or the estate must acquire it and give the
same to the legatee or devisee; but if the owner of the thing refuses to
alienate the same, or demands an excessive price therefor, the heir or the
estate shall only be obliged to give the just value of the thing.

Is it required that the testator owns the property to given as
legacies or devises?
No, the testator may dispose of a property which does
not belong to him

Qualifications:
1
st
qualification: the testator thinks/knew that the
property belongs to him but in fact it was owned by
another
General Rule:
If the testator thinks/knew that the
property belongs to him but in fact it was
owned by another such disposition of
legacy or devise is void

Why?
Because mistake cannot be the basis of
ownership

Exception:
If the testator subsequently acquires the
property by any title the disposition will
be valid

Why?
Because the law presumes from the fact
that the testator acquired the property that

88

perhaps he learned that the property does
not belong to him and to give effect to the
legacy or devise, he does what it takes to
acquire it for him.

2
nd
qualification: the testator knew that the property do
not belong to him and yet he ordered or he gave it by
way of legacy or devise such disposition is valid
the law simply does not only require knowledge, the law
further require that there should be an express order for
the acquisition of the property.

What happens if there is no express order for acquisition?
How do we treat the legacy or devise?
The law did not provide for a rule but if we consider
art. 929. Art. 929 says that if the testator only have a
part interest in the property bequeathed then only
his interest shall be bequeathed with the devisee or
legatee but it provides for an exception. The
exception is if the testator expressly declares he is
giving the entire thing.

In this case (in the question given) there is no
express order to acquire and yet the law recognizes
the validity of the legacy or devise and it accept as
sufficient the implied order to acquire. Perhaps by
analogy we can also accept the situation where
there is no express order for acquisition but there is
knowledge of non-ownership would be simply, an
implied order of acquisition may be sufficient. After
the all the guiding rule is it is always to give effect
to testamentary intent

Since acquisition is a consensual agreement, we cannot
really force the purchase if the seller does not want to sell
or if he otherwise ask for a higher price, in which case
what will be the remedy?
The heir or executor or administrator shall be
obliged to deliver the just value of the property

Can the testator also give by way of legacy or devise property
belonging to the legatee or devisee who is charged which is
burdened by the legacy or devise?
Yes

In that case that legatee or devisee is burdened with shall be
known as a?
Sub-legatee or sub devisee

Earlier, like an heir, a devisee or legatee may also be charged
with a legacy or devisee and the only qualification is that the
value of the devise or legacy should not exceed the free
portion that the devisee or legatee received.
In which case how do we treat the bequeath of property
belonging to the legatee or devisee? Obviously, it is a property
not belonging to the testator but a property belonging to a
legatee or devisee.
It shall be considered to be a simple variation to the
devise or legacy on property belonging to third person
but it would appear that in this case there is no
qualification as to whether or not there was knowledge
on the part of the testator. (It only deals with a variety of
the legacy of things belonging to another, or of things
which do not belong to the testator, and is already
covered by Article 925)

Article 927. If two or more heirs take possession of the estate, they shall be
solidarily liable for the loss or destruction of a thing devised or bequeathed,
even though only one of them should have been negligent.

Would there be any liability upon the person who is charged
with the legacy or devise when it comes to damages that the
devise or legacy may suffer?
Yes

What is the basis of the liability attached?
The fact of possession give rise to liability, the estate will
be liable or the heir charged will be liable because they
are in possession of the property. In fact if there is more
than one heir in possession both are considered to be
solidarily liable even if any one of them will be at fault or
negligence.

The only way in which the liability will be excused is on
account of fortuitous event. But if there is any
participation or whatsoever in the damage caused to the
devise of legacy, then the estate or the heir/heirs in
possession will be liable.

***
(transcribers notes)

Thing is lost when it perishes, goes out of commerce or
disappeared in such a way that the existence is unknown or in
such a way that it cannot be recovered

The solidary liability of heirs also covers cases of fraud and
delay

Presumption: loss was due to the fault of the possessor
unless there is a contrary proof and without prejudice to the
provision of Art. 1165

***


89

Would they also be accountable for any warranty?
Yes, warranty against eviction (Obligation to deliver is
not lost)

When would there be a warranty against eviction?
Eviction can only take place by virtue of a judicial order

Why would there be a warranty against eviction?
Because the intention is to provide a some kind of check
to the authority given to the person charge and the
person providing for this check is to ensure that there
would be no abuse on the part of the person charged.

How can there be abuse?
Abuse can take place in the exercise of the choice
Article 934. If the testator should bequeath or devise something pledged or
mortgaged to secure a recoverable debt before the execution of the will, the
estate is obliged to pay the debt, unless the contrary intention appears.
The same rule applies when the thing is pledged or mortgaged after the
execution of the will.
Any other charge, perpetual or temporary, with which the thing bequeathed
is burdened, passes with it to the legatee or devisee.

Is it required that the property given is unencumbered?
No, even an encumbered property may be given

In such a case, it is the estate that is obliged to pay the debt
or free the property from encumbrance. In all cases?
The qualification or condition is something to do with the
encumbrance or security is intended to secure a
recoverable debt, it is further required that the
encumbrance be constituted as of the time before the

When do we apply the rule that the property must be free
from the encumbrance?
Apply it if the security is given to guaranty a recoverable
debt and secondly it is also required that the pledged or
mortgaged that security be constituted before the

Supposing that these conditions are not present or at least
one of them is not present, what happens to the legacy or
devise?
No, the legacy or devise will have to take the property
encumbered and all. He will take the property that is
subject to the encumbrance.
If the legatee or devisee wants to free the property from
the encumbrance he is free to do so but upon his own
account

Supposing that he does not choose to free the property from
the encumbrance, what happens? If the creditor comes
knocking to his doors to collect, will he be liable?
He will not be personally liable but he cannot stop the
creditor from going after the encumbered property.

Should the burden or encumbrance, however, have for their
purpose not to secure the payment of nay demandable debt,
then they will pass to the legatee and devisee. Hence, the
rights of usufruct, easements and other encumbrances will
have to be assumed by the devisee or legatee
Article 935. The legacy of a credit against a third person or of the remission
or release of a debt of the legatee shall be effective only as regards that part
of the credit or debt existing at the time of the death of the testator.
In the first case, the estate shall comply with the legacy by assigning to the
legatee all rights of action it may have against the debtor. In the second case,
by giving the legatee an acquittance, should he request one.
In both cases, the legacy shall comprise all interests on the credit or debt
which may be due the testator at the time of his death.

Can rights be the subject of a legacy or devise?
Yes

This is best exemplified by LEGACY OF CREDIT or LEGACY OF
REMISSION OF DEBT or LEGACY OF SECURITY.

Legacy of Credit
What is being given here is the right of the testator to
collect from his debtors

How is this satisfied?
The legatee has the right of action to go against the
debtors of the testator or the estate or the heirs may
choose to bring the action against the debtors and simply
turn over the proceeds to the legatee

Here, there is a novation by the subrogation of a new
creditor but is effective only as regards that part of credit
existing at the time of the death of the testator

Article 936. The legacy referred to in the preceding article shall lapse if the
testator, after having made it, should bring an action against the debtor for
the payment of his debt, even if such payment should not have been
effected at the time of his death.
The legacy to the debtor of the thing pledged by him is understood to
discharge only the right of pledge.

The legacy of credit is extinguished if the testator before his
death chooses to bring an action to recover the debt.


90

Supposing the testator makes an extrajudicial demand, will it
extinguish the legacy?
No, because the law specifies that the legacy will be
extinguish only if the testator should bring an action, that
means judicial demand. If it is an extrajudicial demand it
will have no effect in the legacy. If it is a judicial demand
meaning to say a judicial action then the legacy is
extinguished notwithstanding the fact that the payment
may have been made in after the death of the testator

Article 937. A generic legacy of release or remission of debts comprises those
existing at the time of the execution of the will, but not subsequent ones.

Legacy of Remission of Debt
It is a condonation. The testator in condoning the debt
that is owed to him. We need to make a distinction
between general and specific condonation.

If it is general then it is only limited to all debts
existing at the time of the execution of the will.
Those contracted after the making of the will and
existing at the time of testators death are not
covered

If it is specific then it refers to the debt existing at
the time of the testators death
Article 938. A legacy or devise made to a creditor shall not be applied to his
credit, unless the testator so expressly declares.
In the latter case, the creditor shall have the right to collect the excess, if any,
of the credit or of the legacy or devise.

Legacy of Security
According to the law if the testator should give by way of
legacy the thing that was pledge to him and the legatee
has to be the pledgor himself, the effect of that legacy is
to extinguish the pledge that has been constituted in
favor of the testator.

But what will be the effect in the principal obligation?
Nothing, the principal obligation continues to subsist

The law specifies pledges, can we also include mortgages and
other securities?
Yes, because just like a pledge, antichresis, mortgage are
also rights; an intangible property that may be a subject
of a legacy or devise
Article 941. A legacy of generic personal property shall be valid even if there
be no things of the same kind in the estate.
A devise of indeterminate real property shall be valid only if there be
immovable property of its kind in the estate.
The right of choice shall belong to the executor or administrator who shall
comply with the legacy by the delivery of a thing which is neither of inferior
nor of superior quality.
Article 942. Whenever the testator expressly leaves the right of choice to the
heir, or to the legatee or devisee, the former may give or the latter may
choose whichever he may prefer. (876a)
Article 943. If the heir, legatee or devisee cannot make the choice, in case it
has been granted him, his right shall pass to his heirs; but a choice once
made shall be irrevocable.

Is it possible to give something by way of legacy or devise if
and yet that designate that thing by its kind?
Yes

And that would be valid? Example: I would like to give Ms.
Domingo a dog
Yes

A generic personal property or generic legacy is valid but a
generic real property or generic devise is to be valid there
must be immovable property of its kind in the estate other
wise the devise will be null and void.

How else will the generic or specific character of the property
affects the devise or legacy?
It affects with regard to the acquisition of ownership and
the rights to the fruits earned by the property

If the legacy or devise is SPECIFIC, acquisition of
ownership will take place upon the testators death
provided that the disposition is pure and without any
condition; if it is subject to a condition after the
fulfillment of the condition.

If the legacy or devise is GENERIC, acquisition of
ownership will take place upon the selection by the
estate or by the heir charged.

If the legacy or devise is SPECIFIC, the rights of the fruits
will be pass upon the death of the testator, but with
respect to growing fruits or unborn young of the animals,
those would have been gathered already will no longer
be covered.

If the legacy or devise is GENERIC, the rights of the fruits
at the death of the testator will only attached if the
testator so provides.
Article 940. In alternative legacies or devises, the choice is presumed to be
left to the heir upon whom the obligation to give the legacy or devise may be
imposed, or the executor or administrator of the estate if no particular heir is
so obliged.

91

If the heir, legatee or devisee, who may have been given the choice, dies
before making it, this right shall pass to the respective heirs.
Once made, the choice is irrevocable.
In the alternative legacies or devises, except as herein provided, the
provisions of this Code regulating obligations of the same kind shall be
observed, save such modifications as may appear from the intention
expressed by the testator.

Alternative Legacy or Devise
Testator has bequeathed one of two or more properties
which he designated. There is only one legacy but there
are 2 or more choices

Selection will depend upon the estate or heir charged with
the obligation to deliver

In Obligations: Alternative Obligations

If the heir dies before making a choice?
The right shall pass upon the heirs representative. Once
the choice is voluntarily made, it is irrevocable

If it is the executor or administrator who died?
Right is not transferred to the heirs but rather to the
successor in office.
Article 944. A legacy for education lasts until the legatee is of age, or beyond
the age of majority in order that the legatee may finish some professional,
vocational or general course, provided he pursues his course diligently.
A legacy for support lasts during the lifetime of the legatee, if the testator
has not otherwise provided.
If the testator has not fixed the amount of such legacies, it shall be fixed in
accordance with the social standing and the circumstances of the legatee and
the value of the estate.
If the testator or during his lifetime used to give the legatee a certain sum of
money or other things by way of support, the same amount shall be deemed
bequeathed, unless it be markedly disproportionate to the value of the
estate.

What is legacy of education?
A sub specie of legacy of support

Period of Legacy for Education
Until legatee becomes of legal age
If he is studying and seeks to finish a course, legacy
may go beyond the age of majority
Condition: Legatee pursues his studies diligently

Legacy of Support
A legatee is given certain amount until such need for
support exists
Need and capacity must concur

It may last a lifetime but if the testator is incapable of giving
support (and it was justified), it may cease

How much?
Testator may fix the amount of legacy based upon his will

Amount fixed shall be respected as long as the legitime of the
compulsory heirs are not affected

Possible reduction if the capacity of the testator decreases

If the testator not fixed the amount
General Rule:
Considerations fixing the amount of support:
Social Standing of legatee or legatees
The necessities of legatee or legatees
Value of the estate the entire residue of the
hereditary estate after payments of all debts and
obligations

Exception
Testator during his lifetime has habitually given a
certain sum of money to the legatee or other things
by way of support, amount shall be deemed
bequeathed

Exception to the exception
Amount is substantially disproportionate to the
value of the estate

In which case, what must be done?
Must be reduced

Article 945. If a periodical pension, or a certain annual, monthly, or weekly
amount is bequeathed, the legatee may petition the court for the first
installment upon the death of the testator, and for the following ones which
shall be due at the beginning of each period; such payment shall not be
returned, even though the legatee should die before the expiration of the
period which has commenced. (880a)
Periodical pension or a certain annual, monthly or weekly
amount is bequeathed
Legatee may petition the court for the first installment upon
the death of the testator and for the following ones which
shall be due at the beginning of each period

Such payment shall not be returned (even though the legatee
should die before the expiration of the period which has
commenced)


92

Article 946. If the thing bequeathed should be subject to a usufruct, the
legatee or devisee shall respect such right until it is legally extinguished.

Legacy or devise subject to a usufruct
Legatee or devisee is bound to respect such right until it
is legally extinguished

Article 950 vs Article 911
Article 911. After the legitime has been determined in accordance with the
three preceding articles, the reduction shall be made as follows:
(1) Donations shall be respected as long as the legitime can be
covered, reducing or annulling, if necessary, the devises or
legacies made in the will;
(2) The reduction of the devises or legacies shall be pro rata,
without any distinction whatever.
If the testator has directed that a certain devise or legacy be paid
in preference to others, it shall not suffer any reduction until the
latter have been applied in full to the payment of the legitime.
(3) If the devise or legacy consists of a usufruct or life annuity,
whose value may be considered greater than that of the
disposable portion, the compulsory heirs may choose between
complying with the testamentary provision and delivering to the
devisee or legatee the part of the inheritance of which the
testator could freely dispose

As between donation intervivos and legacies and devises,
donation is given preference

As among legacies and devises themselves they shall be
treated pro-rata except should the testator should declare
any devise or legacy to be preferred

In article 950, there is a hierarchy
Article 950. If the estate should not be sufficient to cover all the legacies or
devises, their payment shall be made in the following order:
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the testator to be preferential;
(3) Legacies for support;
(4) Legacies for education;
(5) Legacies or devises of a specific, determinate thing which forms a
part of the estate;
(6) All others pro rata.

When to apply 911?
We apply 911 when there are donations, compulsory
heirs and legacies and devises and the assets are not
sufficient

When to apply 950?
When the conflict only exist among devises and
legacies, no compulsory heirs and no donations, but the
assets are insufficient

What is the hierarchy?
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the testator to be
preferential;
(3) Legacies for support;
(4) Legacies for education;
(5) Legacies or devises of a specific, determinate thing
which forms a part of the estate;
(6) All others pro rata.

Remuneratory legacies or devises
Remuneratory legacies reward services rendered to the
testator or his family, services which are invaluable but
which do not give rise to a demandable debt.

How would we distinguish it from salary?
Remuneratory legacies are an act of liberality for the past
services rendered not obligatory
Article 957. The legacy or devise shall be without effect:
(1) If the testator transforms the thing bequeathed in such a
manner that it does not retain either the form or the
denomination it had;
(2) If the testator by any title or for any cause alienates the thing
bequeathed or any part thereof, it being understood that in the
latter case the legacy or devise shall be without effect only with
respect to the part thus alienated. If after the alienation the thing
should again belong to the testator, even if it be by reason of
nullity of the contract, the legacy or devise shall not thereafter be
valid, unless the reacquisition shall have been effected by virtue
of the exercise of the right of repurchase;
(3) If the thing bequeathed is totally lost during the lifetime of the
testator, or after his death without the heir's fault. Nevertheless,
the person obliged to pay the legacy or devise shall be liable for
eviction if the thing bequeathed should not have been
determinate as to its kind, in accordance with the provisions of
article 928.

Instances of extinguishment of Legacies or devises
Transformation of the thing bequeathed as to form
or denomination
Example: farmland to fish pond
Alienation by any title
Any form of disposition


93

Would there be any qualification of this rule,
what if it turns out that the disposition was null
and void?
After disposing of the thing by way of legacy
or devise the thing is again reacquired by
the testator. It does not matter if he
reacquires the thing because if he brings an
action to recover on the ground of nullity of
transaction, the legacy or devise is still
considered extinguished. However, should
the acquisition is be on account of a right to
repurchase then legacy or devise is valid.

In other words, we should consider the legacy or
devise as revoked if the testator should dispose
of the thing be given by way of legacy or devise.
What if after disposing he acquired the property
again, do we say that the legacy or devise is
restored to validity? What if he recovers the
thing because the transaction or the disposition
itself is null and void?
The legacy or devise shall not be restored to
validity. If we make a legacy or devise and
then thereafter disposed of the thing that
have been given by way of legacy or devise,
the legacy or devise is considered revoked.

The law takes it that by alienating or disposing,
the testator had change his mind regarding the
legacy or devise, but what happened the
transaction that was entered into may be null
and void, and the necessary consequence of
that would be the thing that have been disposed
of will be returned to the testator. Once the
testator reacquires it because of the nullity if
the transaction, notwithstanding the nullity of
transaction the legacy or devise remains
revoked because the intention to revoke has
already been expressed, it has been made
known. Although the disposition was not
effective but that does not deter from the fact
that the testator has changed his mind.

Is there possible that there can be an exception
to this rule that the legacy remains revoked?
What could possibly be a situation or disposition
although there was no intention to dispose?
Such situation may arise if there is a
vitiation of consent on the part of the
testator. If he did not really want to dispose
of the property but there was force or fraud
so the disposition takes place, but we
cannot take that disposition as an indication
that he has changed his mind about the
legacy or devise because his consent was
vitiated.

General Rule: The nullity of the contract
and the recovery of the testator on that
ground will not restore the legacy or devise
to validity

Exception: if the nullity or the defect of the
contract proceeds from vitiation of consent
then we must say that the legacy or devise
should be restored to validity because the
basis of our premise to rely that there was a
change of intention is no longer apply
because of the vitiation of consent.

If there is a right to repurchase, the legacy or
devise would be effective. The mere fact that
the testator has reserve upon himself the right
to repurchase shows that he did not really
intend to completely dispose of the property,
hence we cannot say that he had change his
mind regarding the legacy or devise. The right
of repurchase is not automatic, it must be
stipulated. If there is a right of repurchase
attached to the disposition, it shows that the
testator want to preserve the legacy or devise.

We always go back to the intention of the
testator

If the thing is totally lost

Is it possible for a generic property to be lost?
No, genus never perishes

without the heir's fault material qualification

If the heirs are liable, can we say that there is
extinguishment of the legacy or devise?
None, because the law provides that
the legatee or devisee will be
reimburse by the value of the legacy or
devise by virtue of the liability imposed
upon the heirs who is at fault or who is
negligent

However, if the lost is without fault or
negligence of the heir, what happens to the
legacy or devise?
The legacy or devise is considered
extinguished

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Article 958. A mistake as to the name of the thing bequeathed or devised, is
of no consequence, if it is possible to identify the thing which the testator
intended to bequeath or devise. (n)
Article 959. A disposition made in general terms in favor of the testator's
relatives shall be understood to be in favor of those nearest in degree.

LEGAL OR INTESTATE SUCCESSION
Article 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one which
has subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of all
the property belonging to the testator. In such case, legal
succession shall take place only with respect to the property of
which the testator has not disposed;
(3) If the suspensive condition attached to the institution of heir
does not happen or is not fulfilled, or if the heir dies before the
testator, or repudiates the inheritance, there being no
substitution, and no right of accretion takes place;
(4) When the heir instituted is incapable of succeeding, except in
cases provided in this Code

When can Intestate Succession takes place?
A person dies without a will
A person dies with a void will
A person dies with a will which has subsequently lost
its validity
If the testator did not name an heir to the entire
estate in which case there would be an intestate
succession with regard to the portion to whom no
heirs is named
If the testator did not dispose of the entire estate, in
which case there would be an intestate succession
with regard to the portion not have been disposed of
by the will
Suspensive condition attached to the institution of
heir does not happen
Predecease
Except:
o Substitution
o Right of accretion
Repudiation
Except:
o Substitution
Heirs instituted are incapacitated to succeed
Except:
o Substitution

If the testator wants to prevent his intestate heirs from
inheriting, what should he do?
o Dispose all of his properties
o Make a valid will disposing the entire estate

Supposing that the testator does not want to alienate all of
his properties but among his 6 siblings he does not want his
two particular siblings to inherit, can he, in the alternative,
just provide in his will that he is expressly exclude his to
siblings?
Yes

What is the basis?
The order of succession provided for by law is based on
the presumed intent of the decedent. The law presumes
that had this person is able to make a will then this
would be his beneficiary. We have presumed intent on
one hand as embodied on what the law provides and on
the other hand we have on the will express intent. The
express intent is that the testator does not want his 2
particular siblings to inherit. Express intent will always
governed the only exception is as to legitime of the
compulsory heirs.

In this case the express exclusion will be given effect
because it is the express intent of the testator.

Remember disinheritance is only applicable to
compulsory heir and sibling (brothers and sisters) are not
compulsory heirs

Who are considered to be intestate heirs?
o Compulsory Heirs
o Collateral relatives
o Brothers and sisters
o Nephews and nieces
o Other collateral relatives within the 5
th

degree
o State

In the collateral relatives, there is some kind of leveling
because brothers and sisters, nephews and nieces they are
take ahead of all collateral blood relatives and the other
collateral relatives are limited to those within the 5
th
degree
of consanguinity. In the absence of all relatives, then we will
have the state

Rules in Intestate Succession (that is the same with
compulsory succession)
o Rule of Exclusion
o Parents being excluded by the children and
descendants

95

o Legitimate parents are excluded by all kinds
of children (legitimate or illegitimate)
o Rule on Concurrence
o The spouse can concur with the parents
o The spouse can concur with the children

In intestate succession, we always have compulsory
succession. We need to make sure that when we
apply the sharing provided by law there should be
no impairment of the legitime. If there will be
impairment, we must first satisfy the legitime

Rules in Intestate Succession
o Rule of Proximity
o Rule of Equal division

Rule of Proximity
General Rule: Relatives nearest in degree excludes the
more distant one
Exception: Right of Representation

Grand Parent

Parents Uncles Aunts

Sisters Decedent Brothers Cousins Cousins

Nieces Children Nephews

Grand Children

Grand Children are excluded by the presence of Children
Grand Parent are excluded by the presence of Parents
Cousins are excluded by the presence of Brothers and Sisters
Nephews and Nieces are excluded by the presence of
Brothers and Sisters

The effect of rule of proximity is the heirs that will be
inheriting will all belong to the same class or belong to the
same level.

So, if children are the nearest relatives then all the heirs will
be children, no one further in degree will be inheriting with
them

If grandchildren are the nearest relatives then all the heirs
will be grandchildren, no one further in degree will be
inheriting with them

Exception:
Right of representation
Rule of preference of lines (the rule on proximity
must yield to the rule of preference of lines)

By virtue of right of representation, it is possible for a
grandchild who is farther in degree will inherit alongside
children who are nearer in degree

How many degrees are the grandparents from the children?
2 degrees

What about brothers and sisters?
2 degrees

If we will base on proximity, we can say that the grandparents
and brothers and sister are the 2 nearest relatives, but will
they be inheriting along side one another?
No, this is another instance that we do not apply the rule
on proximity. A brother is as near as grandparents
because they are both second degree blood relatives. If
we would apply the rule on proximity, we should allow
both of them to inherit simultaneously. However, the
rule on proximity must yield to the rule of preference of
lines.

What is this rule on preference of lines?
The direct line is preferred over the collateral line

In our given situation, we have a brother who is a collateral
relative, and we have a grand parent who is an ascending
relative (in the direct line). We prefer the ascendant because
he is a relative in the direct line over a brother who is a
relative in the collateral line even though they are both
second degree relatives.

But the preference does not stop there, because in the direct
line itself, we also have preference. Let say, grandchild and
grandparent. A grandchild is a second degree relative. Who
shall inherit?
The grandchild because the descending line is preferred
over the ascending line

Rule of equal Division
If you are inheriting and u are in the same class, then u
should be inheriting equally


96

Example: Brothers and sisters, they are inheriting together.
The rule is that they should be inheriting equally. But
supposing along side is the spouse of the decedent, should we
take it that the 3 of them will be inheriting the same share?
No, because the spouse is in a totally different class,
aside from being an intestate heir, she is also a
compulsory heir

Let say, brothers and sisters, but one is named as a voluntary
heir to the free portion, can we still insist that the sister that is
only an intestate heir would be receiving equally?
No, because they are not of the same class. One is an
intestate heir and the other is both intestate and
voluntary heir

Is there an exception to the rule of equal division?
1. In the descending line, when the heirs are not of the
same or kind, that is some are legitimate and others
are illegitimate
2. In the ascending line, the rule of division by line, that
is, the grandparents or other ascendants divide the
property per line: to the paternal line and to the
maternal line
3. In the collateral line, that is, the rule of the whole
blood and half blood relationship, where those of
the whole blood get double that the half blood
4. The division in representation where division per
stirpes, that is, the representative divide only to the
share pertaining to the person represented.

Exception # 3
If the brother is of full blood and the sister is of half-blood,
then the sharing will not be the same although both are
siblings. The brother will get twice as much as the sister. Do
we have the same rule in testamentary succession?
No, because in testamentary succession regardless of full
blood or half blood siblings will have an equal share.

Exception #2
Paternal Grand Father - PGF
Paternal Grand Mother - PGM
Maternal Grand Mother - MGM
Maternal Grand Father - MGF

PGF PGM MGF MGM

Father Mother

Decedent
In the ascending line, we divide the estate by line, so that
even if we have 2 sets of grand parents (maternal and
paternal), but on one side lets say in the maternal side we
only have maternal grand mother and on the paternal side
we have both set of grand parents. In short, the decedent
was survived by 3 grandparents. We do not divide the estate
among them equally, we divide first the estate by line, so
divided by 2 first, so that one side will get and the other
side will get the other half. Since we have 2 grandparents in
the paternal side, each of them will be getting each. And
since we have one parent in the maternal side, shell be
getting the entire of the estate. So the sharing will be ;
; , not equal because the sharing is divided by line.

Exception # 4
The representative will be inheriting per stirpes, but they are
inheriting in the same manner as representatives. They are
also the same degree relatives of the decedent. But will they
be inheriting equally? Following the rule that if u belong in the
same class, u inherit along side with another u are to inherit
equally. will they be inheriting equally?
No, because their sharing will have to be determined by
right of representation that they are exercising.

Decedent

A B C

X Y U V W

Let say, A and B predecease the decedent, that means, we will
be moving up X, Y, U, V and W to the level of children by right
of representation. Will X, Y, U, V and W be inheriting in equal
portion as F?
No, because F will be inheriting per capita
of the
estate
of the
estate


97

We divide the estate by the number of children

X and Y will inherit the 1/3 portion belonging to A by right of
representation = 1/6 each

U, V and W will inherit the 1/3 portion belonging to B by right
of representation = 1/9 each

Obviously, U, V and W will be getting less than X and Y even
though they are inheriting one class of heirs (they are all
representatives of children (A and B) who have predeceased
the testator

Right of representation is found in Compulsory Succession
and Intestate Succession

Right of Accretion is found in Voluntary Succession and
Intestate Succession

Right of Representation

Right of Representation always in the Direct line in the
descending line, never in the ascending. In right of
representation, the representative inherits from whom the
person represented would have inherited.

Grandparents

Parents

Decedent

Child

Grand child

In our illustration, X, Y, U V and W is actually inheriting from
the decedent and this facts has consequences. What will be
the consequences?

Grandparents

Parents

Decedent (D)

Child (A)

Grand child (B)

If B can represent A and inherit from D even though B
had repudiated his inheritance from A.

But if A has repudiated his inheritance from D, B cannot
represent A because of the repudiation. What will
happen?
If there is no right of accretion, then the grand child
will be inheriting in his own right

C- 1/3
B-1/3
A -1/3
C-1/3
W-1/9
V-1/9
U-1/9
X-1/6
Y- 1/6
B repudiates his
inheritance from A
A repudiates his
inheritance from D

98

Decedent (D)

A B C

E

We said earlier, A repudiates his inheritance from D, so E
cannot represent A. what happens to the legitime of A?
When it comes to the legitime, B and C will get the
portion suppose to be pertaining to A in their own right
because the law says when it comes to compulsory
succession (legitime), there is no right of accretion.
(parang wla lng c A, inde sya kasama sa kwentahan ng
legitime)

But in addition to compulsory succession, B and C will
also be inheriting by intestate succession. In intestate
succession we have now accretion. B and C, in intestate
succession, will be receiving the portion that should have
gone to A by right of accretion.

The results would be the same because the law provides
that the heirs by right of accretion will be receiving in the
same proportion as in the inheritance and since equal din
lng nmn si B and C, ganun din ang mangyayari, hahatiin
lng din nila yung portion ni A.

Another consequence of the fact that E is actually receiving
from A is that it does not matter if A dies ahead of the
decedent.

In intestate succession, right of representation takes place
when there is predecease and incapacity, while in
Compulsory succession, right of representation takes place
when there is predecease, incapacity and disinheritance

Do we have right of representation in repudiation?
None, because when an heir repudiates it is as though
the heir do not exist anymore in so far as the estate of
the decedent is concerned. So when the heir repudiates,
he cannot be represented.

Are we limited to the direct line when it comes to right of
representation?
No, there is right of representation in the collateral line
but only up to the nephews and nieces

Grand Parent


Sisters (S) Decedent Brothers (B) Cousins Cousins


Grand Children

In our illustration, we have B the brother of the decedent and
we have S the sister of the decedent, how is right of
representation?
The nephews and nieces must concur with brothers and
sisters in the situation. So, if the brother should die or
otherwise incapacitated, then Bs son (nephew of the
decedent) will be inheriting along side S. S in her own
right and the nephew by right of representation.
Of course, this will not happen if we have people in the
direct line because of the preference of the direct line
over the collateral line.

Grand Parent


Sisters (S) Decedent Brothers (B) Cousins Cousins


Grand Children

Supposing both siblings (bros and sis) are dead ahead of the
testator, can there be a right of representation?
Both nieces and nephews will be inheriting in their own
right, meaning per capita
A repudiates
his inheritance
from D

99

Right of Accretion

When do we have a right of Accretion? What are the
instances?
It applies whenever there is renunciation, predecease
and incapacity.

Renunciation, predecease and incapacity are also grounds for
substitution.

How do we distinguish Right of Accretion from Substitution?
Right of accretion takes place in both Testate and
Intestate Succession. Substitution takes place in
testamentary succession.

When do we consider substitution as a factor when u want to
apply right of accretion?
Only in testamentary succession

How do we consider the rights in substitution as a factor?
How will it affect the right of accretion?
(hanging question)

Right of accretion
A right by virtue of which, when 2 or more persons are
called to the same inheritance, devise or legacy, the part
assigned to the one who renounces or cannot receive his
share, or who died before the testator, is added or
incorporated to that of his co-heirs, co-devisees or co-
legatees

It is an accrual of share of an heir who predecease,
incapacitated or repudiated the inheritance to co-heir in pro-
diviso

Co-ownership exist between heirs because their respective
shares was not yet distributed

It is applicable only in cases of testate and intestate
succession

It is not applicable to compulsory succession because
compulsory heirs inherits by their own right

In intestate Succession, right of accretion is subordinate to
right of representation in cases of predecease and incapacity

Requisites of right of accretion
That 2 or more persons be called to the same
inheritance or to the same portion thereof, pro-
indiviso
That one of the persons thus called die before the
testator or renounces the inheritance or be
incapacitated


100

WILLS19

When do we have right of accretion?
We have this in testamentary succession and intestate
succession

Do we have this in compulsory succession?
None, because if there is predeceased, incapacity or
disinheritance among the compulsory heirs with regard
to the legitime, it will go to the representative if there is

Supposing there is no right of representation?
Then it shall pertain to the other compulsory heirs of the
same class in their own right

What is the significance of this fact or consequence?
The only significance would be in determining the
legitime if there are legitimate children or the surviving
spouse.

How does it happens? (panu mangyayari yan?) Illustration:

Decedent Spouse

A B C

Supposing we have 3 legitimate children (A, B and C), then we
have a surviving spouse.

The share of the surviving spouse is equivalent to the share of
1 legitimate child. Supposing that C dies, or is incapacitated or
disinherited, what happens to his share?
It will now pertain to A and B

But will it accrue to them (A and B)?
No, it will pertain to them in their own right (parang wala
si C), in which case, we shall divide it , which means
each (A and B), lalabas na ang kanilang share, because
of the of the estate. Which means the surviving
spouse will be getting how much?
as well

Compare this with the situation where we say that there
would be accrual, in which case, how much will be the
legitime of A, B and C, it will be 1/6 and then it will just accrue
the 1/6 pertaining to C between A and B, in which case that
1/6 that will spread between them does not pertain to them
in their own right, accretion un. (No accretion in Compulsory
Succession, sinabi lng ni Mam toh for comparison, wag
malilito, wag stupid)

When there is right of Accretion in Intestate succession?
Repudiation
Predecease
Incapacity
Unworthiness

So when any of these grounds appear, what happen to the
share that is pertained to the vacated share in intestate
succession?
Just like in Compulsory Succession, if there is right of
representation, in which case it goes down to the
representative.

What happens if there is no right of representation?
Then we apply accretion, it will accrue to the other heirs.
But remember, the heirs should be of the same class

In intestate Succession, right of accretion takes place as a
matter of force, it is automatic, if we have more than one heir
of the same class, accretion will naturally take place in the
absence of right of representation.

What is created in Intestate Succession among the heirs?
Co-ownership

What is the nature of co-ownership?
Everyone becomes a pro-indiviso owner, there is no
specific ownership over a specific property. Ownership
over the whole but ownership with jointly with others.

Do we also have right of Accretion in Testate Succession?
Yes

Does it follow in testamentary Succession that co-ownership is
created just like in Intestate Succession?
No, because the testator has the power to provide for
specific ownership for each and every heir. Pwede syang
magbigay ng devise, ng legacy, and when he does that he
confers specific ownership. Alam mo na from the outset,
what you own as against the entirety of the estate. That
is why in testamentary succession we have conditions
that must be complied with before we can say that there
is Accretion.

SS, 1/4
FP
B, 1/4
A, 1/4

101

What are those conditions?
Art. 1016
Article 1016. In order that the right of accretion may take place in a
testamentary succession, it shall be necessary:
(1) That two or more persons be called to the same inheritance,
or to the same portion thereof, pro indiviso; and
(2) That one of the persons thus called die before the testator, or
renounce the inheritance, or be incapacitated to receive it.

As we put it very simply it means plurality of subjects over
unity of objects

What does that mean?
We have more than one co-owner over one property, it
may be the entire estate or may be a portion of the
estate.

We can say that the bottom line is resulting to co-ownership.
If the testamentary disposition is such that if it is a co-
ownership among several heirs, then it is possible for
accretion to take place.

When do we say that there is pro-indiviso co-ownership?
According to the law, it does not matter even if the
disposition provides that the heir should be receiving in
equal shares or the heirs should be taking the property
50-50, because the effect is still co-ownership.

There is a controversy however in the designation itself,
because if we would go by the provision of the law, it would
seem to limit the application of accretion to (hanging
statement)

The law says, ok lang yan kahit may designation of shares,
basta co-ownership pa din ang magiging resulta. And yet all
the given examples pertain to equal sharing

What happens if the sharing is no longer equal? What if the
designation of shares says 1/4 sayo, 1/3 sa kanya, 1/6 sa
kanya but it pertains to one property or the entire estate. In
that case there is still no specific designation of ownership.

According to Senator Tolentino kelangan daw equal sharing,
equality and that view was also shares by Justice Caguioa.

But according to Professor Balane, the provision says or any
others which, though designating an aliquot part, do not
identify it by such description as shall make each heir the
exclusive owner of determinate property (art. 1017)

We prescribe to the rule primarily of Justice Caguioa and
Senator Tolentino, because we are trying to approximate the
situation for accretion to apply in basing in Intestate
Succession.

In intestate succession the rule is equality. We said that if the
heirs belong to the same class then the rule is that they shall
be inheriting in equal shares. So ganun din dapat sa
testamentary Succession, for us to say that accretion to take
place then the heirs should also be inheriting in equal shares.
Kasi in intestate succession pag lhat kayo kapatid wla naming
makakakuha ng . 1/3 o 1/6, automatic nman yan pag tatlo
kayo tig-wa1/3 kayo subject to the exception of full-blood
and half-blood, but as a general rule you will all be Inheriting
equally.

So if the principle as we follow that is inherent in Intestate
succession, then logic dictates that the circumstances should
also be the same for Testamentary Succession. Dapat equal
din yung share.

Siguro, alternative na lng ung kay professor Balane, which is
based on the literal interpretation of law

What can defeat right of accretion in Testamentary
Succession? Do we have right of representation?
None

What can defeat right of accretion in Testamentary
Succession?
Substitution, if there is substitution we do not have
accretion. In the absence of substitution the substitution
will take place

When does accretion do not apply in money or fungible
goods?
If the money or fungible goods, the portion of the money
or fungible goods have already been earmarked

What does earmarked means?
It means it was physically segregated

Example:
Money, it was taken from the whole amount, it was
put in the envelope and marked as to be given to
Juan
Fungible goods, it was taken from the lot, it was put
in the sack and marked as to be given to Pedro


102

Things to Remember about right of Representation
We have right of representation in the direct line but
only in the descending line
We have right of representation in the collateral line
but only with respect to nephews and nieces who
survive together with brothers and sisters of the
decedent
Illegitimate children can be represented by both
their legitimate and illegitimate children
Legitimate children cannot be represented by their
illegitimate children because of Iron Curtain Rule
(art. 992)

IRON CURTAIN RULE

Gabby Sharon Francis

KC Frankie Miel

KC is an illegitimate Child of Sharon

Can KC inherit from his sisters (Frankie and Miel)? (intestate)
She cannot, because of Art. 992

Can her sisters inherit from KC? (intestate)
They cannot, because of Art. 992

Lets compare the right of representation given to
grandchildren and other descendants and the right of
representation given to nephews and nieces

Is any difference?
Nephews and nieces can only inherit by right of
representation when they survive with another brother
or sister of the decedent

If they alone survive (nephews and nieces) what happens?
They inherit in their own right

What about grandchildren and other descendants?
They always inherit by right of representation

How will that affect their (grandchildren and other
descendants) their successional right? Would there be any
difference?
Yes, because when we inherit by right of representation
the shares is per stirpes

Order of Intestate Succession

Compulsory Succession and Intestate Succession are
practically the same, in fact the first 5 people in the
enumeration of Intestate heirs are also the Compulsory Heirs.
Necessarily the rules of exclusion that we apply, rules of
concurrence in compulsory succession, we also apply in
intestate succession

Basically the sharing would be ,

The only we should look out for is the impairment of legitime

Who excludes who, lets go to the latter part of the
enumeration

We have the collateral relatives, who are the collateral
relatives?
Up to the 5
th
degree

Do we have any preferences among these collaterals up to the
fifth degree?
The preference between brothers and sisters; and
nephews and nieces as against the other collaterals

Brothers and sister; nephews and nieces are placed in a
higher level, then the rest of the collaterals up to the fifth
degree

What will be the significance of this rule?
It creates an exception to the rule of proximity

How so?
Nephews and nieces exclude uncles and aunts. We have
a hierarchy in the enumeration, the law says brother
and sister; nephews and nieces AND IN THEIR ABSENCE
the other collateral relatives up to the fifth degree. That
means nephews and nieces exclude uncles and aunts,
this significant because nephews and nieces and uncles
and aunts are of the same degree. Nephews and nieces is
3 degrees away from the decedent as well as uncles and
aunt are also 3 degrees away from the decedent, and yet
in intestate succession, nephews and nieces is preferred
over uncles and aunts

Suppose that we dont have brothers and sisters and nephews
and nieces, who will now come in?
The rest of the collaterals

Would there be any important rule to observe in determining
who among these collaterals shall inherit?
We adhered to the rule of proximity


103

What if your great great grandparent (4
th
degrees) survives
with your 1
st
cousins (who is the child of the decedents uncle:
4
th
degree relative)? So we have 4
th
degree great great
grandparent VS 4
th
degree 1
st
cousin, who shall inherit?
When it comes to collateral relatives up to the 5
th

degree, we NO LONGER observe the preferences of lines
and we do not observe the rule of Full blood and half
blood relationship. The only rule we observe is the rule
of proximity. So both will be inheriting

COMPUTATION # 1:

? Decedent Spouse

1 2 3 4 5 6 7 8 9 10 A B C

3 legitimate Children
A 1/6
B 1/6
C 1/6

Surviving Spouse 1/6

10 illegitimate children
1 1/30
2 1/30
3 1/30
4 1/30
5 1/30
6 1/30
7 1/30
8 1/30
9 1/30
10 1/30

In this case there would be impairment of legitime. So, we
satisfy Compulsory Succession first, and then if there is any
left over then we apply the 2:1 (legitimate : illegitimate)
proportion, if any.

COMPUTATION #2

Decedent Spouse

X Y Z

1 2 3 4 5 6

X Predecease
Y Disinherited
Z Disinherited

SS

Y
Z

In this case, there is a share that is vacated in the compulsory
succession, it is vacated because of the predecease of X who
is a compulsory heir. Since X predeceased the decedent and
there are no decendants from X, we do not have right of
representation. And since this is also a legitime then there
would be no right of accretion as well.

What will happen is that Y and Z will be succeeding to the
vacated share in their own right.

So we will be ignoring X as though he never existed
So that Y and Z, their legitime would be each (1/4 of the
estate)

SS, 1/6
1, 1/30
2, 1/30
3, 1/30
4, 1/30
5, 1/30
6, 1/30
7, 1/30
8, 1/30
9, 1/30
10, 1/30
C, 1/6
B, 1/6
A, 1/6
Share of the Legitimate Children,
of the estate.

divided by 3 (legitimate Children)
Share of the illegitimate
Children

Satisfy first the legitime of
the spouse, reduction of the
share of illegitimate
children, then divide it by 10
(illegitimate children)


104

This will make the legitime of the surviving spouse also of
the estate

Let us compare the successional right of the children and
nephews and nieces

Successional Right of the Nephews and Nieces

Sister Decedent Brother

1 2 3 4 5 6 7 8

Sister and Brother predeceased the decedent, how much will
each of them share in the inheritance?
1/8 each, because they will be succeeding per capita,
by their own right
For as long as the nephews and nieces survives
alone, they will be succeeding per capita, if they
survives with a brother or a sister, they will be
succeeding per stirpes by right of representation

Successional Right of Grandchildren

Decedent

A B

1 2 3 4 5 6 7 8

Are they succeeding in their own right? Are they succeeding
per capita?
No, because grandchildren and descendants wil
always inherit by right of representation per stirpes,
even they are the only one inheriting as descendants
(Kahit sila lng ang survivors)

What happened here is we divide the estate by the number
of children first. to A and to B.

Both parents have predeceased the decedent, how much will
the sharing be?
1, 2 and 3 will be receiving 1/6
4, 5, 6, 7 and 8 will be receiving 1/10

What happens if instead of being disinherited, instead of
dying ahead, instead of being incapacitated, but children A
and B had repudiated the inheritance?
If there is repudiation there can be no
representation because when there is repudiation
the effect is that the person who repudiated is
deemed to be non-existent. How do the
grandchildren inherit in lieu of the provision of the
law?
Then the grandchildren will inherit in their
own right. So that will be an exception to
the rule that grandchildren and other
descendants will always be succeeding by

Decedent (grand mother) Sister

Son Niece

1 2 3

Let us say, the grand mother was survive by the illegitimate
children of his legitimate son and by her niece, who shall
inherit? Illegitimate grandchildren VS collateral relative
(niece)? Can the Grandchildren exclude the niece?
The niece, this is the classic application of the IRON
CURTAIN RULE. Illegitimate children cannot inherit
from the legitimate children and legitimate relatives
of their relatives

TEOTICO VS DEL VAL
Relationship established by ADOPTION is limited
solely to the adopter and the adopted and does not
extend to the relatives of the adopting parents or of
the adopted child except only as provided for by law.
The adopted is an heir of the adopter but not of the
relatives of the adopter.

Sharing in the Intestate Succession

Article 980. The children of the deceased shall always inherit from him in
their own right, dividing the inheritance in equal shares.
Legitimate Children (LC) Alone whole estate

Article 983. If illegitimate children survive with legitimate children, the
shares of the former shall be in the proportions prescribed by article 895.
LC and IC whole estate
Each IC gets the share of 1LC (take into
account of impairment of legitime as seen
in computation #1)

105

Article 996. If a widow or widower and legitimate children or descendants
are left, the surviving spouse has in the succession the same share as that of
each of the children.
LC and SS whole estate
SS counted as 1LC

Article 999. When the widow or widower survives with legitimate children or
their descendants and illegitimate children or their descendants, whether
legitimate or illegitimate, such widow or widower shall be entitled to the
same share as that of a legitimate child.
LC, SS and IC
SS same as share of 1 LC
IC each gets share of 1 LC

Article 985. In default of legitimate children and descendants of the
deceased, his parents and ascendants shall inherit from him, to the exclusion
of collateral relatives.
LP alone whole estate divided equally

Article 987. In default of the father and mother, the ascendants nearest in
degree shall inherit.
Should there be more than one of equal degree belonging to the same line
they shall divide the inheritance per capita; should they be of different lines
but of equal degree, one-half shall go to the paternal and the other half to
the maternal ascendants. In each line the division shall be made per capita.
LA alone (other than parents) whole estate
Rule of division by line

Article 991. If legitimate ascendants are left, the illegitimate children shall
divide the inheritance with them, taking one-half of the estate, whatever be
the number of the ascendants or of the illegitimate children.
LP and IC
LP of the estate
IC of the estate

Article 997. When the widow or widower survives with legitimate parents or
ascendants, the surviving spouse shall be entitled to one-half of the estate,
and the legitimate parents or ascendants to the other half.
LP and SS
LP of the estate
SS of the estate

Article 1000. If legitimate ascendants, the surviving spouse, and illegitimate
children are left, the ascendants shall be entitled to one-half of the
inheritance, and the other half shall be divided between the surviving spouse
and the illegitimate children so that such widow or widower shall have one-
fourth of the estate, and the illegitimate children the other fourth.
LP, SS and IC
LP of the estate
SS of the estate
IC of the estate

Article 988. In the absence of legitimate descendants or ascendants, the
illegitimate children shall succeed to the entire estate of the deceased.
IC alone whole estate divided equally

Article 998. If a widow or widower survives with illegitimate children, such
widow or widower shall be entitled to one-half of the inheritance, and the
illegitimate children or their descendants, whether legitimate or illegitimate,
to the other half.
IC and SS
SS of the estate
IC of the estate

Article 984. In case of the death of an adopted child, leaving no children or
descendants, his parents and relatives by consanguinity and not by adoption,
shall be his legal heirs.
Article 995. In the absence of legitimate descendants and ascendants, and
illegitimate children and their descendants, whether legitimate or
illegitimate, the surviving spouse shall inherit the entire estate, without
prejudice to the rights of brothers and sisters, nephews and nieces, should
there be any, under article 1001.
SS alone whole estate

Article 1001. Should brothers and sisters or their children survive with the
widow or widower, the latter shall be entitled to one-half of the inheritance
and the brothers and sisters or their children to the other half.
SS and legitimate bros and sis, nephews and nieces
SS of the estate
Legitimate Bros and Sis, Nephews and
Nieces of the estate
Nephews and Nieces right of
representation

Article 994. In default of the father or mother, an illegitimate child shall be
succeeded by his or her surviving spouse who shall be entitled to the entire
estate.
If the widow or widower should survive with brothers and sisters, nephews
and nieces, she or he shall inherit one-half of the estate, and the latter the
other half.
SS and illegitimate Bros and Sis, nephews and nieces
SS of the estate
Illegitimate Bros and Sis, Nephews and
Nieces of the estate
representation

Article 993. If an illegitimate child should die without issue, either legitimate
or illegitimate, his father or mother shall succeed to his entire estate; and if
the child's filiation is duly proved as to both parents, who are both living,
they shall inherit from him share and share alike.
Illegitimate Parents Alone whole estate
Excluded by the presence of children of any
kind


106

Article 1004. Should the only survivors be brothers and sisters of the full
blood, they shall inherit in equal shares.
Article 1006. Should brother and sisters of the full blood survive together
with brothers and sisters of the half blood, the former shall be entitled to a
share double that of the latter.
Legitimate Bros and Sis Alone whole estate
Full blood and half blood - 2:1

Article 1005. Should brothers and sisters survive together with nephews and
nieces, who are the children of the descendant's brothers and sisters of the
full blood, the former shall inherit per capita, and the latter per stirpes.
Article 1008. Children of brothers and sisters of the half blood shall succeed
per capita or per stirpes, in accordance with the rules laid down for brothers
and sisters of the full blood.
Legitimate Bros and Sis, nephews and nieces whole
estate
representation

Article 975. When children of one or more brothers or sisters of the
deceased survive, they shall inherit from the latter by representation, if they
survive with their uncles or aunts. But if they alone survive, they shall inherit
in equal portions.
Article 1008. Children of brothers and sisters of the half blood shall succeed
per capita or per stirpes, in accordance with the rules laid down for brothers
and sisters of the full blood.
Nephews and Nieces alone whole estate, per
capita

Article 1009. Should there be neither brothers nor sisters nor children of
brothers or sisters, the other collateral relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or preference among
them by reason of relationship by the whole blood.
Article 1010. The right to inherit ab intestato shall not extend beyond the
fifth degree of relationship in the collateral line.
Other collaterals whole estate
Per capita
Rule of proximity

Article 1011. In default of persons entitled to succeed in accordance with the
provisions of the preceding Sections, the State shall inherit the whole estate.
State whole estate

Rules in computing for Intestate Succession
1. Satisfy the legitime of the compulsory heirs first
2. Apply the rules in intestate succession in available
free portion

If the legitime is not impaired, apply the sharing in intestate
succession. Otherwise, follow the rules above

CAPACITY TO SUCCEED

Article 1024. Persons not incapacitated by law may succeed by will or ab
intestato.
The provisions relating to incapacity by will are equally applicable to intestate
succession. (
Article 1025. In order to be capacitated to inherit, the heir, devisee or
legatee must be living at the moment the succession opens, except in case of
representation, when it is proper.
A child already conceived at the time of the death of the decedent is capable
of succeeding provided it be born later under the conditions prescribed in
article 41.

What are the Basic requirements?

Kelangan lng may pulso ung mag mamana

The person who will inherit should be alive at the time of the
death of the decedent

This is true also for children who are already conceive

When should the capacity to inherit exists?
As a general rule, it is enough at the time of death.
Except, if the inheritance will be subject to a
suspensive condition, then it is crucial that the
capacity to inherit both at the time of death and at
the time of fulfillment of the condition

There is no exception created when it comes to
representation, notwithstanding the tenor of the law. In
other words, even if the heir is inheriting by right of
representation, the heir is still required to have capacity to
inherit at the time of death of the person who are inheriting
from not the person who are represented.

Important provisions of law:
Art. 1027, which provides 6 grounds for incapacity
Article 1027. The following are incapable of succeeding:
(1) The priest who heard the confession of the testator during his last
illness, or the minister of the gospel who extended spiritual aid to
him during the same period;
(2) The relatives of such priest or minister of the gospel within the
fourth degree, the church, order, chapter, community,
organization, or institution to which such priest or minister may
belong;
(3) A guardian with respect to testamentary dispositions given by a
ward in his favor before the final accounts of the guardianship
have been approved, even if the testator should die after the
approval thereof; nevertheless, any provision made by the ward
in favor of the guardian when the latter is his ascendant,
descendant, brother, sister, or spouse, shall be valid;
(4) Any attesting witness to the execution of a will, the spouse,
parents, or children, or any one claiming under such witness,
spouse, parents, or children;
(5) Any physician, surgeon, nurse, health officer or druggist who took
care of the testator during his last illness;
(6) Individuals, associations and corporations not permitted by law to
inherit.
The first five grounds pertain to testamentary Succession

107

Art. 1028, makes the provisions of Art. 739 applicable to
testamentary Succession

Article 1028. The prohibitions mentioned in article 739, concerning
donations inter vivos shall apply to testamentary provisions.
Article 739. The following donations shall be void:
(1) Those made between persons who were guilty of adultery or
concubinage at the time of the donation;
(2) Those made between persons found guilty of the same criminal
offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and
ascendants, by reason of his office.

In the case referred to in No. 1, the action for declaration of nullity may be
brought by the spouse of the donor or donee; and the guilt of the donor and
donee may be proved by preponderance of evidence in the same action.

Art. 1032, applies to all kinds of Succession. The grounds are
around 5 of which constitute for disinheritance
Article 1032. The following are incapable of succeeding by reason of
unworthiness:
(1) Parents who have abandoned their children or induced their
daughters to lead a corrupt or immoral life, or attempted against
their virtue;
(2) Any person who has been convicted of an attempt against the life
of the testator, his or her spouse, descendants, or ascendants;
(3) Any person who has accused the testator of a crime for which the
law prescribes imprisonment for six years or more, if the
accusation has been found groundless;
(4) Any heir of full age who, having knowledge of the violent death of
the testator, should fail to report it to an officer of the law within
a month, unless the authorities have already taken action; this
prohibition shall not apply to cases wherein, according to law,
there is no obligation to make an accusation;
(5) Any person convicted of adultery or concubinage with the spouse
of the testator;
(6) Any person who by fraud, violence, intimidation, or undue
influence should cause the testator to make a will or to change
one already made;
(7) Any person who by the same means prevents another from
making a will, or from revoking one already made, or who
supplants, conceals, or alters the latter's will;
(8) Any person who falsifies or forges a supposed will of the
decedent.

The thing about the grounds in art. 1032 is that if any of these
grounds are present, then this will make it true totally render
the heir incapable of succeeding by will, compulsory
succession and intestate succession. The effect of
unworthiness is encompassing.

How do we restore an unworthy heir to capacity?
If the testator executes a will after he learns of the
grounds of unworthiness, then the heir is considered
to be restored in capacity
Execute a written condonation

Let us say that there is reconciliation required in
disinheritance, in disinheritance, if the parties reconcile then
there would be no cause for disinheriting anymore. But in
what form does the law require the reconciliation to be in
disinheritance, the law does not require any form but it is
required to be bilateral

When it comes to unworthiness, the law requires that the
condonation should be in writing

The problem would be, if the testator disinherits the heir for
a ground that is also a ground for incapacity because of
unworthiness.

Example: the testator disinherited an heir because of an
attempt against his life, that is both a cause for disinheritance
and a ground for unworthiness. What happens if after that he
reconciles? The ground for disinheritance will disappear, but
what about the ground for unworthiness considering that the
law requires written condonation and there is none in the
situation given, we only have is reconciliation? So it is possible
that he heir would be incapable of succeeding by will,
compulsory succession and intestate succession. So what
must be done, how do we exclude a person who is
incapacitated to succeed? The court will make an order of
exclusion. One of the interested party must raise this an a
issue with the court, otherwise, no exclusion will be done.

What happens if the heir who is unworthy is already in
possession of the property and disposes it? Who has the
better right, the other heir or the third person who dealt with
the excluded heir?
We observe the same rule of good faith. If the 3
rd

person is in good faith and the disposition is done
before there is a judicial order of exclusion, then the
right of the 3
rd
person will be respected. The other
heir will have recourse for damages against the
excluded heir.

What will comprise the damage in this case?
The value of the thing which was disposed
of
Accessions and accessories
Return the fruits that he received and the
fruits that he would have receive

Prescriptive period?
5 years from the time the disqualified heir has taken
possession

ACCEPTANCE AND REPUDIATION


108

Article 1041. The acceptance or repudiation of the inheritance is an act
which is purely voluntary and free.

Inheritance is a free and voluntary act, following this
principle, there is a requirement of acceptance or
repudiation.

Article 1042. The effects of the acceptance or repudiation shall always
retroact to the moment of the death of the decedent.

Article 1043. No person may accept or repudiate an inheritance unless he is
certain of the death of the person from whom he is to inherit, and of his right
to the inheritance

When do an heir suppose to accept or repudiate, within 30
days from the court issues an order of distribution.

If the heir did not do anything, then the heir is deemed to
have accepted the inheritance

Effect of acceptance and repudiation retroacts from the time
of death of he decedent, that is why if the heir accepts, them
the heirs is deemed to be in possession of the property from
the time of death, even though someone else is in
possession.

In the same way, even if the heir was in possession but he
repudiates, then the heir is deemed to have never in
possession of the property

Would there be any form required by law?
Yes, the law prescribes a form of acceptance and
repudiation. Acceptance can be express and tacit

How do an heir expressly accepts?
In a public or private document

How do an heir tacitly accepts?
Doing any act which can only be done as an heir or
owner of the property

There would be an implied acceptance under article 1050

Article 1050. An inheritance is deemed accepted:
(1) If the heirs sells, donates, or assigns his right to a stranger, or to
his co-heirs, or to any of them;
(2) If the heir renounces the same, even though gratuitously, for the
benefit of one or more of his co-heirs;
(3) If he renounces it for a price in favor of all his co-heirs
indiscriminately; but if this renunciation should be gratuitous, and
the co-heirs in whose favor it is made are those upon whom the
portion renounced should devolve by virtue of accretion, the
inheritance shall not be deemed as accepted.

The 3 instances are acts of ownership

If the heir renounces the same, even though gratuitously, for
the benefit of one or more of his co-heirs the renunciation is
gratuitous but only for the benefit of one or more heirs but
not all, but if it is gratuitous and if in favor of everyone and
would have the same effect of accretion then that would be a
different case.

How do an heir repudiate?
Through a public and authentic instrument or by
filing a petition before the court

If the heir is a testamentary heir and at the same time an
intestate heir, and the heir repudiates the intestate portion of
the inheritance, how would that affect the testamentary
disposition in his favor?
It will be taken as a repudiation of the testamentary
disposition as well

However if the heir repudiates the intestate
inheritance without knowledge that he had been
made a testamentary heir, then the repudiation will
not extend to the testamentary disposition

What happens if the heir repudiated and then he changes his
mind? Can it be taken back?
No, the heir cannot take it back, once the heir
accepted or repudiated that is irrevocable except if it
is shown that there is vitiation on consent

COLLATION

Who are suppose to collate? Is it true that only compulsory
heirs are suppose to collate?
No, everyone is suppose to collate. Compulsory heirs
and strangers alike

Who are the strangers in collation?
Anyone who is not a compulsory heir. A stranger can
also be a testamentary heir or an intestate heir.

Is there any difference if the person collating is a stranger or a
compulsory heir?
Yes, it has to be determine at the first instance, to
what portion do we charged or impute the donation.

If it is a compulsory heir, we impute it to his legitime
If it is a Stranger, we impute it to the free portion

Would there be an instance that we impute a donation of a
compulsory heir to the free portion and not to his legitime?
Yes,

109

o it happens if the testator so provide that
there be no collation against such
compulsory heir, in which case we impute it
to the free portion
Or
o If the donation exceeds his legitime, in
which case excess of the donation to the
free portion.

What do we bring back, do we bring back the property itself
which was donated?
No, only the value at the time that the donation was
made

But what if the property grew in value?
It does not matter because upon knowledge by the
donor of the acceptance, there was already a
perfected donation and there was also a transfer of
ownership, so any benefit as well as damage would
have to be for the account of the donee

Would there be any transfers from the decedent which will
not be subject of collation?
Yes

No collation in the following cases:
Article 1062. Collation shall not take place among compulsory
heirs if the donor should have so expressly provided, or if the
donee should repudiate the inheritance, unless the donation
should be reduced as inofficious.
Article 1063. Property left by will is not deemed subject to
collation, if the testator has not otherwise provided, but the
legitime shall in any case remain unimpaired.
o Exception:
testator so provides otherwise or
when the legitime is impaired
Article 1065. Parents are not obliged to bring to collation in the
inheritance of their ascendants any property which may have
been donated by the latter to their children.
Article 1066. Neither shall donations to the spouse of the child be
brought to collation; but if they have been given by the parent to
the spouses jointly, the child shall be obliged to bring to collation
one-half of the thing donated.
o Exception:
if given jointly, child obliged to
bring collation of the thing
donated
Article 1067. Expenses for support, education, medical
attendance, even in extraordinary illness, apprenticeship, ordinary
equipment, or customary gifts are not subject to collation.
Article 1068. Expenses incurred by the parents in giving their
children a professional, vocational or other career shall not be
brought to collation unless the parents so provide, or unless they
impair the legitime; but when their collation is required, the sum
which the child would have spent if he had lived in the house and
company of his parents shall be deducted therefrom.
o Exception:
if the parents so provide
It impairs the legitime
Article 1070. Wedding gifts by parents and ascendants consisting
of jewelry, clothing, and outfit, shall not be reduced as inofficious
except insofar as they may exceed one-tenth of the sum which is
disposable by will.
o Exception:
exceeds 1/10 of sum disposed by
will

Collation required in the following cases:
Article 1061. Every compulsory heir, who succeeds with other
compulsory heirs, must bring into the mass of the estate any
property or right which he may have received from the decedent,
during the lifetime of the latter, by way of donation, or any other
gratuitous title, in order that it may be computed in the
determination of the legitime of each heir, and in the account of
the partition.
Article 1064. When the grandchildren, who survive with their
uncles, aunts, or cousins, inherit from their grandparents in
representation of their father or mother, they shall bring to
collation all that their parents, if alive, would have been obliged to
bring, even though such grandchildren have not inherited the
property.
o Exception: if the testator so provides
otherwise unless legitime is impared
Article 1069. Any sums paid by a parent in satisfaction of the
debts of his children, election expenses, fines, and similar
expenses shall be brought to collation.
o Refers to civilly demandable debt
Article 1071. The same things donated are not to be brought to
collation and partition, but only their value at the time of the
donation, even though their just value may not then have been
assessed.
Their subsequent increase or deterioration and even their total
loss or destruction, be it accidental or culpable, shall be for the
benefit or account and risk of the donee.

PARTITION
Article 1078. Where there are two or more heirs, the whole estate of the
decedent is, before its partition, owned in common by such heirs, subject to
the payment of debts of the deceased. (n)
Article 1079. Partition, in general, is the separation, division and assignment
of a thing held in common among those to whom it may belong. The thing
itself may be divided, or its value.

Why partition necessary? The result of succession is co-
ownership. What does partition do?
It provides for the separation, division and
assignment of the held in common among those to
whom it may belong

Do an heir become an owner of the property once it is
partitioned?
No, because the heir has been a co-owner

The basis of partition is co-ownership

110

Let say the co-heir decides to share the entire property or the
entire inheritance without knowledge of the other co-heirs,
what is the right of action? Is it an action for recovery of
ownership?
No, an action for partition

Why not action for recovery of ownership?
Because the unconsented co-heir does not lose his
ownership of his portion despite the sale, because a
co-onwer/co-heir does not have any right over the
unconsented co-owner/co-heirs portion.

What right does the 3
rd
person acquires?
He merely stepped into the shoes of the co-
owner/co-heir who sold his share, in which case he is
a co-owner

A co-owner cannot bring an action against a co-owner over a
thing owned in common

Theoretically speaking all of the co-owners is entitled in the
possession or enjoyment of the property

Important provision in partition is article 1080
Article 1080. Should a person make partition of his estate by an act inter
vivos, or by will, such partition shall be respected, insofar as it does not
prejudice the legitime of the compulsory heirs.
A parent who, in the interest of his or her family, desires to keep any
agricultural, industrial, or manufacturing enterprise intact, may avail himself
of the right granted him in this article, by ordering that the legitime of the
other children to whom the property is not assigned, be paid in cash.

Should a person make partition of his estate by an act inter
vivos, or by will, such partition shall be respected, insofar as it
does not prejudice the legitime of the compulsory heirs.
What does this provision means?
It means that even during his lifetime, the decedent
can already effect a partition of his property among
his heirs

Is it the same as a donation?
No, because in that case the ownership is effected at
the death of decedent, still mortis causa. Yun nga
lang the partition is effected during the decedents
lifetime

The controversy lies if the decedent can effect partition
without a last will and testament.
Jurisprudence has been consistent in holding that
there should be a last will and testament
Recently in CHAVEZ vs IAC, were it appear that even
without a will a partition that is effected inter vivos
by the decedent would be upheld as valid. This is a
jurisprudence of recent vintage, meaning it was
promulgated under the New Civil Code. (abandoned)
But in the case of more recent promulgation of
RODRIGUEZ VS RODRIGUEZ (2007), it pertains to a
partition effected in accordance with a will that was
executed in 1984. The SC said that u cannot effect a
partition inter vivos in the absence of a last will and
testament that has been submitted to probate.

Any heir can ask for partition at any time. Unless the testator
himself imposes a prohibition against partition

A prohibition for partition would even affect the legitime

If before partition, the co-heir should decide to sell his
portion to a 3
rd
person, then the other co-heirs has the right
to purchase the property. Some kind of a first refusal

And when this is suppose to be exercised?
Within 30 days from written notice

If there is no written notice the 30 day period will not be
deemed begun.

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