SUCCESSION

Atty. Rafael Martinez

MODE vs. TITLE

Means. In compliance with the requisite of the law Juridical Act

Concept of Succession - Manresa - It is in this sense that it is understood in the New Civil Code.
Consequently, Art. 774 defines it as a mode of acquisition by virtue of which the property, rights and
obligations to the extent of the value of inheritance, of a person are transmitted through his death to
another or others either by his will or by operation of law.
This definition, as can be seen, is in conformity with the general provision of Art. 712 which enumerates
the different modes of acquiring ownership and other real rights.

Basis of Succession. Manresa-

(1) Theories which base the right of succession on the right of private property- The natural law which
obliges a person to provide for those he would leave behind. This is a consequence of family relations; a
recognition of the natural law of consanguinity or of blood and the natural affection of a person toward
those nearest him in relationship.
(2)Necessity of giving stability to the social economy. A socio-economic postulate which would prevent
wealth from becoming inactive or stagnant. This is essential from an economic standpoint to enable the
social economy to be firm.
(3) Eclectic Theories, these theories try to harmonize the two principle - individual and social. These
theories try to harmonize the two principles. Individual and Social. This necessity, in turn, is based on the
necessity of giving greater stability to the family and to the social economy

Lorenzo vs Posadas, 64 Phil. 353

Whatever may be the time when actual transmission of the inheritance takes place, succession takes place
in any event at the moment of the decedent's death. Thomas Hanley having died on May 27, 1922, the
inheritance tax accrued as of that date.

Uson vs. Del Rosario, 92 Phil. 530

The right of ownership of Maria Uson over the lands in question became vested in 1945 upon the death of
her late husband and this is so because of the imperative provision of the law which commands that the
rights to the succession are transmitted from the moment of death. (Art. 777, NCC)

TEST OF SOUNDNESS OF MIND:

(1) The Testator was able at the time of the execution of the will to know the nature of the estate to be
disposed of.
(2) The proper object of his bounty;
(3) The character of the testamentary act, the testator must be aware that the instrument he is disposing of
is his property mortis causa.

Presumption: The law presumed that every person is of sound mind.

The burden of proving that the testator is an unsound mind is the one who opposes the probate of the will.
REQUISITES OF NOTARIAL/ORDINARY WILL
Art. 805
(1) It 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;
-Testor sign at the end of the will. Last testamentary disposition. (Logical or Physical end)
(2) It must be attested and subscribed by three or more credible witnesses in the presence of the testator
and of one another.
(3) It must be executed in writing
(4) It must be executed in a language or dialect known to the testator.
(5) All of the pages must signed in the left margin except the last one, by the testator or another person
requested by the testator to write his name and by the instrumental witness
(6) It must be numbered correlatively in letters on the upper part of each page
(7) It must contain an attestation clause
(8) It must be properly acknowledged by a notary public by the testator and the instrumental witnesses.

In addition to the above-requirements, there are also specified solemnities which are prescribed by the
NCC in case the testator is deaf, or a deaf-mute or in case he is blind.

DISTINCTION BETWEEN ATTESTATION AND SUBSCRIPTION

(1) Attestation is an act of senses

Subscription is an act of the hand
(2) Attestation is a mental act
Subscription is a mechanical act
(3) The purpose of attestation is to render available proof during the probate of the will, not only of the
authenticity of the will but also its due execution
The purpose of subscription is merely for identification.

CONTENTS OF THE ATTESTATION CLAUSE

(1) Number of pages used upon which the will is written.
(2) That the testator signed at the end and of every page and in the presence of the instrumental witnesses,
or have caused another person to sign on behalf of him under his express direction.
(3) That the instrumental witnesses witness and sign the will in every page thereof in the presence of one
another.

3 witnesses one of them cannot sign on behalf of the testator.

Failure to state the number of the witness in the attestation clause is not FATAL to the due execution of
the will.
It may nonetheless be answered at the face of the will itself. Extrinsic evidence.

Case: Jaboneta vs. Gustilo 5 Phil 541

TEST OF PRESENCE or TEST OF AVAILABLE SENSES

 As held by the Supreme Court in several cases, the true test of presence of the testator and the
witnesses in the execution of will is not whether they actually saw each other sign but whether they
might have seen each other sign, had they chosen to do so, considering their mental and physical
condition and position with relation to each other at the moment of inscription of each signature.
(Jaboneta vs. Gustilo, 5 Phil. 541)

Signing of the three instrumental witnesses is mandatory

SUBSTANTIAL COMPLIANCE,
Case: Abangan vs. Abangan 40 Phil 476

Failure to sign in the left margin, reiterates the doctrine of Substantial Compliance.
Case: Icasiano vs. Icasiano 11 SCRA 422

Duplicate original, can still be considered thus it can be probated.

RULES TO INVALIDATE THE WILL

-Attestation clause - Fail to state the number subscribing witnesses, NOT FATAL
-Attestation clause failed to state that the testator sign the will at the presence of the witness and of one
another- FATAL
Reason: Only evidence that can prove - EVIDENCE ALIUNDE. It cannot prove by extrinsic evidence.

Note: THOSE ACTS WHICH ARE MENTAL failure to comply will render Fatal.
There is no other means to prove the same. It can supply with anything that can be found in the face of the
will itself, that omission is not Fatal, means it will not invalidate the will, but if that omission is
MENTAL the omission will be fatal hence it can invalidate the will.

HOLOGRAPHIC WILL
A holographic will is one entirely written, dated and signed by the hand of the testator.

FORMALITIES OF HOLOGRAPHIC WILL

(1) The language must be known to the testator
(2) The will must be entirely written by the hand of the testator himself
(3) The will must be dated. (Date must be complete, known, sufficient)
(4) The will must be entirely signed by the hand of the testator himself.

XPN: Although generally the date should be the true one, an incorrect date, as long as it was made in
good faith, does not invalidate the will.
Case: Roxas vs. De Jesus, GR No. 38338

IF there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the will
is established.

Qualification of Instrumental witness

(1) He must be of a sound mind;
(2) He must be at least 18 years of age or more;
(3) He must not be blind, deaf or dumb;
(4) He must able to read and write
Disqualification of Instrumental Witness:
(1) Any person not domiciled in the Philippines
(2) Those who have been convicted of falsification of documents, perjury or false testimony.
(3) Any person under 18 years of age
(4) Any person who is not of a sound mind
(5) Any person who is blind, deaf or dumb
(6) Any person who is not able to read and write
Q: What is the effect of a statement of a false cause in a will?
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.

Requisites for the annulment of institution base on a false cause (Base on the provision):
(1) The cause for the institution must be stated in the will;
(2) The cause must be shown to be false
(3) It must appear from the face of the will that the testator would have not made the institution if he had
known the falsity of the cause.

PRETERITION, consists in the omission of the testator's will of the compulsory heirs in the direct line
or anyone of them either because they are not mentioned therein, or though mentioned they are neither
instituted as each or expressly disinherited.
Preterition according to Manresa, The omission of the heirs in the will either by not naming him at all
or while mentioning him as father, son etc by not instituting him as heir without disinheriting him
expressly nor assigning to him some part of the properties.
Preterition consists of the silence of the testator with regards to a compulsory heir omitting him in the
testament by not mentioning him or by not giving him at all in the hereditary property, but without
expressly disinheriting him.

Case: JLP Agro Incorporation vs Balansag, Don Julian did not execute a will, partition inter vivos
properties, transferring ownership of his properties during his lifetime. Preteritated wife 2nd marriage
SC Held: It is Premature if it is not irrelevant to speak of pretirition prior to the Death of Don Julian in
the absence of a will depriving a legitime.

Art. 1080 Authorized partition inter vivos does not require that a will must first be made. What is the
remedy which is not given in the estate of a person? Always remember your right over the property of
your parents inchoate (mere expectancy).
Petitioner for the settlement of estate. Demand legitime from her siblings. Cannot file yet an action while
the testator is alive. When the succession opens, you already have the personality to file an action for the
purpose of claiming your legitimes. Although the law allowas distribution inter vivos such distribution
may only take effect after the death of the testator.

Requisites in order that pretirition to exist:

(1) The heir must be a compulsory heir in the direct line whether ascending or descending;
 Q: What if the wife is omitted? Would there be a pretirition? Is a wife considered a
compulsory heir in the direct line? NO
A: There can be no pretirition.
Q: Adopted child is omitted
A: YES. Legally adopted child.
(2) The omission is complete and total in character.
(3) The compulsory heir omitted should have survived the testator.

What will be the effect of Pretirition?

(1) It shall have the effect of annulling the institution of heirs, but not legatees or devisee shall be valid
insofar inofficious.

Q: In case of representation from whom does the representative inherit?

A: From the testator. Not from the person represented. From the one whom the person represented would
have succeeded.

SUBSTITUTION OF HEIRS
Q: Define Substitution
Ate Nabua: It is the appointment of another heir, so that he may enter into the inheritance in default of the
heir's original institution.

Substitution is the designation by the testator of a person or persons to take the place of heir or heirs after
the first heir is instituted. Under substitution in general, the testator may either provide for the designation
of another heir to whom the property shall pass in case the original heir should die before him or her,
repudiate or incapacity. Or leave the property to one person with the express . . . that the property be
transmitted subsequently to another or other as a fideicommissary substitution.

What are the kinds of substitution?

(1) simple or common
(2) Brief compendious
(3) Reciprocal
(4) Fideicommisary

When does simple or common substitution take place?

The testator designate two or more person or persons to substittute the heirs instituted in his will in case
such heir dies before him, or should not wish to be an heir or be incapacitated to accept the inheritance.
The 2nd heirs take the inheritance from the first heir in case of RIP.

What are the grounds for Substitution?

(1) Predecease
(2) Incapacity
(3) Repudiation unless the testator provides otherwise.
If the testator does not specify the cause, these three causes are applicable.
Brief or Common Substitution, when two or more persons are designated by the testator to substitute
for only one heir.
Compendious, when there is only one person designated to substitute for two or more cases in which
case all of the instituted heirs must predecease the testator.
Reciprocal, two or more persons are reciprocally substitutes for each other, the substitution is called
reciprocal.

Fideicommissary substitution,
takes place when the fiduciary, 1st heir is entrusted with the obligation to preserve and to transmit to
second heir, the whole or part of the inheritance, the substitution does not go beyond 1 degree from the
original heir instituted, provided that the 1st heir and 2nd heir are living at the time of the death of the
testator. There must be an obligation clearly imposed upon the first heir to preserve and transmit to the
2nd heir.

"Go beyond one degree from the heir originally instituted" The word one degree means one generation
hence if the 2nd heir, can only be either a parent or a child of the 1st heir.

x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x

SUCCESSION DISCUSSION, September 27, 2021

LEGITIME
Ate Marcial: Part of the decedent property, the testator cannot dispose of the law and made a reservation
to compulsory heirs.
ATTY.: It is part of the testator's hereditary estate which he cannot dispose of because the law has
reserved it for compulsory heirs.

As a rule the testator cannot prejudice the right of the compulsory heirs, to their legitime. The testator
cannot deprived his compulsory heirs of their legitimes, except in case of disinheritance legally made and
the testator cannot impose any condition any burden, charge, encumbrance or substitution of any kind
upon the legitime and there are only two instances where the testator may validly affect the legitime of
the compulsory heir.

What are these instances:

(1) When the testator explicitly/validly disinherited the heir;
(2) When there is a prohibition to partition the estate for a period not exceeding 20 yrs.

What are the three kinds of compulsory heirs?

(1) Primary Compulsory Heir, Legitime children of the testator. Precedent over and exclude other
compulsory heir
(2) Secondary Compulsory Heir, Ascending Line, they may be excluded if primary compulsory heirs are
available. Succeed only in the absence of primary compulsory heir.
Who are these Primary Compulsory Heirs?
(1) Legitimate children and descendants of the testator
A person whose succession is under consideration is a legitimate child and descendants, they will exclude
the legitimate parents and ascendants.
Who are these Secondary Compulsory Heirs?
(2) Legitimate parents or the ascendants of the testator. Compulsory heirs only in the absence of Primary
Compulsory Heirs.
Concurring Compulsory Heir.

Adopted child enjoys the right of a legitimate child; the presence of an adopted child will exclude the
legitimate parents and descendants of a deceased parent.

Q: Will the adopted child continue to be the compulsory heir of his natural parent?
A: Family Code, the adopted remain as legal heirs of his/her parents or other relatives is also a
compulsory heir of the adopter.
Domestic Adoption Law, an adopted child is considered as the legitimate child of the adopter for all
intents and purposes. The implication of that the adopted child once legally adopted ceases to be a
compulsory heir of his natural parent. No longer considered as compulsory heir of his natural parents.

Q: What if the parents of the adopted child predeceases his parents, can the adopted child inherit
by right of representation from the parent of the adopter?
A: NO. He cannot inherit from the parents of his adopter. The relationship in case of adoption under the
law is only between the adopter and the adopted. The adopted child has no relationship with the blood
relatives or parents of the adopter.

OCTOBER 25, 2021

Legitimated children conceived and born of parents, who are at the time of their conception, parents are
not disqualified by any impediment. Prior to marriage, child status is an illegitimate child. Upon marriage
of the parents, the child will be legitimated automatically.

How about illegitimate children? Are they considered primary compulsory heirs? When may
illegitimate children become primary compulsory heirs?
Illegitimate children may become primary compulsory heirs of their illegitimate parents only if they do
not concur with the legitimate children or descendants of their illegitimate parents.

There are heirs who are considered as secondary compulsory heirs?

The secondary compulsory heirs are the legitimate parents and ascendants. In relation

Illegitimate parents shall be considered compulsory heirs if their illegitimate children have no children of
their own whether legitimate or illegitimate and legitimate descendants. The existence of children and
descendants or illegitimate children of the deceased shall exclude the illegitimate parents from the
legitime.
Even in default of the legitimate children or descendants or illegitimate children of the deceased . ONLY
THE PARENTS OF THE ILLEGITIMATE CHILDREN ARE ENTITLED TO LEGITIME other
ascendants are excluded.

What will be the amount of legitime of the heirs?

When the compulsory heirs of the same kind survive alone without the concurrence of compulsory like, a
surviving spouse and illegitimate children the legitime is always one-half of the hereditary estate as a
general rule.
Ex. only legitimate children survive; that is a primary compulsory heir automatically the legitime is one-
half or fifty percent of the hereditary estate.

Exception: In the case however of the surviving spouse, when the marriage was solemnized in articulo
mortis, and the deceased died within three months from the time of the marriage, the legitime of the
surviving spouse as the sole heir is only ONE-THIRD of the hereditary estate. That rule applies only
when the deceased spouse is at a point of death when at the time of marriage.

Exception to the the exception: When the parties have been living as husband and wife for more than 5
years prior to the marriage (articulo mortis) , in that case the legitime of the surviving spouse shall be
one-half of the hereditary estate.

When the primary compulsory heirs concurs with the concurring compulsory heirs, or concurs
with other heirs who are entitled of legitime, what would be the sharing?

Primary compulsory heirs concurs with concurring heirs

Ex. One legitimate child 1/2 concurs with the surviving spouse ¼ of the hereditary estate.
Several legitimate children(½ equally divided) concur with the surviving spouse (equal to the share of
each child).
Secondary compulsory heirs concurs with the concurring compulsory heirs
Legitimate parents (½ of the estate) Surviving Spouse (¼ of the hereditary estate)
Legitimate parents (½ ) Illegitimate children (in equal share, ¼ of the estate)
Legitimate parents (½ ) Surviving Spouse (⅛ of the estate under Art. 899) but the share of the surviving
spouse shall have preference over those of illegitimate children.

RESERVA TRONCAL

PRINCIPLES IN RESERVA TRONCAL:

(1) In reserva troncal, there are four parties to be considered: First the ascendant or brother or sister
from the where the property originally came from. Second, The propositus. Third, The reservista
and the fourth the reservatarios. All these persons shall be legitimately connected/related to each
other. It will only exist in a legitimate family. Illegitimate or affinity are excluded.
(2) Since the law does not expressly require that the ascendants should reserve only when the
property comes down from a different line there is view to that effect, that there is still an
 obligation to reserve even if the reservista and other ascendants from whom the property came
belong to the same line.
(3) To be a reservatorio the relative must not only be within the third degree of consanguinity from
the propositus but must likewise belong to the line from which the property came, and it is further
required, that the reservatorio should be related by blood not only from the propositus but also to
the other ascendant or brother or sister from whom the property came, only then he can be
considered as belonging to the line from which the property came.

WHAT IS THE EFFECT OF RESERVA TRONCAL?

In connection with the reservable property, the wave of opinion is that the . . . which . . . two resolutory
conditions.
(1) The death of the ascendant obliged to reserve
(2) The survival at the time of his death of relatives within that 3rd degree belonging to the same line
from which the property came

Execute a document that would show that you are a reservatarios and that the property is a reservable
property

If the property involved is covered by a torrens title and the same is transmitted to a buyer in good faith,
even if you have the right under the law to recover the same if it was already transmitted to a buyer in
good faith, the reservatorio could no longer recover it from the third person who is a buyer in good faith.
In order to avoid the situation, what you should do is to annotate in the title or register with the registry of
deeds a document that would show that the property is reservable in nature and that you are a
reservatorio.

In reserva troncal, the reservista or the reserva property subject of reserva troncal is conditionally owned
by the reservista, who may use or even alienate the property subject to the rights of the reservatarios.
If there are no living reservatarios at the time of reservista’s death, what will happen to the property,
which is subject of reserva troncal? It will be a part of the reservista’s estate. The property will be treated
as if there is no reserva troncal but if there are, at the time of the death of the reservista, there are
surviving or living reservatarios then the property should be conveyed to them and any earlier disposition
of the property should be considered conditional.
Reserva troncal merely determines the proof of relatives, reservatarios to whom the property should be
returned, but within that group the reservatarios, the individual right to the property should be decided by
the applicable rules of ordinary intestate succession since, ART. 891 does not specify otherwise. Hence,
among the reservatarios, the rules on intestacy shall apply, hence, the direct line of the propositus is
preferred over the collateral line. The nearer relatives exclude the further ones.

Other rules affecting the legitimes:

(1) Rule that prohibits the renunciation or compromise of future legitimes. Any renunciation or
compromise over a future legitimes is VOID. Hence, the compulsory heir may still claim the
same notwithstanding such renunciation or compromise.
Reason: A future inheritance is nothing but an expectancy over which the heir does not acquire any right
until the death of the testator. Hence, juridically and legally, there is nothing to renounce and nothing to
which to compromise. Because you have no right yet over the property.

While Art. 905 of the New Civil Code declared void only the compromise of future legitimes made by the
descendants and compulsory heirs, ANY AND ALL SUCH COMPROMISE IS PROHIBITED under Art.
1347 of the NCC. Which prohibits any contracts involving future inheritance

(2) The right to demand the completion of legitimes, if there is a total omission of a compulsory heir
in the direct line from the inheritance - PRETERITION. In that case if there is preterition, the
institution of heir be annulled, but the devises and legatee shall be valid insofar as they are not
inofficious.
When the heir omitted is not a compulsory heir in the direct line, in the case of a surviving spouse
or when the omission is not total. There is no preterition. Remedy heir omitted, remedy for the
ask for the delivery of his/her share from the inheritance.Completion of legitime.
Inofficious testamentary dispositions and donations, insofar as the legitime is concern
The testamentary disposition which impairs or diminished the legitime of the compulsory heir is
inofficious and shall be reduced upon the petition by those who have a right to the legitime.

How do you compute the legitime? What are the procedures to be followed?

PROCEDURE:
(1) The value of the property which remains at the time of the decedent's death shall be determined
(2) All debts and charges which are not imposed in the will shall be deducted, if the debt or charge
arises for the first time from the will itself, as a unilateral act of the testator it is non-deductible.
The difference between the assets and the liabilities shall then constitute the net hereditary
estate.
(3) To the net value of the hereditary estate shall be added the value of all donations by the testator
that are subject to the collation at the time he made them. The value of the donation subject to
collation is determined as of the time when the donations were made, not at the time of his death.
It includes donations not only those in favor of compulsory heirs but also those made in favor of
strangers and involves the imaginary adding of the value of all the donations to the value of the
net hereditary estate. COLLATION.

RULES IN THE IMPUTATION OF THE DONATIONS AND ITS REDUCTION:

(1) Donations given to compulsory heirs should be charged to their legitimes
(2) Donations made to strangers shall be charge to that part of the estate which the testator would
have disposed by his will and they shall be reduced insofar as they are inofficious
(3) Donations shall be respected all long as the legitimes can be covered. Reducing or annulling if
not necessary the devisees or legacies made in the will.
(4) The reduction of the devisees and legacies shall be pro rata without any distinction or whatever.
XPN: If the testator has directed that a certain devise or legacy be paid in preference to others, it
 shall not suffer any reduction until after all other devisees and legacies, had been applied in full to
the payment of legitime.
(5) If after annulling the legacies or devisees, the legitime cannot be fully paid, then the donations
must be reduced or annulled as the case may be.
Art. 773. If, there being two or more donations, the disposable portion is not sufficient to cover
all of them, those of the more recent date shall be suppressed or reduced with regard to the
excess.

DISINHERITANCE
General Rule: The testator cannot deprived his compulsory heirs of their legitimes
XPN: A compulsory heir may in consequence of a valid disinheritance be deprived of his legitime.
Disinheritance as distinguished by Pretirition
Disinheritance is the deprivation of a compulsory heir of his legitime by the testator done in an express
manner ; there is some legal cause ; in case of an invalid disinheritance the compulsory heir is
merely restored to his legitime
Pretirition on the other hand is the deprivation of a compulsory heir of his legitime by the testator done
in an implied manner

REQUISITES OF A VALID DISINHERITANCE: D-C-VW-ES-CP-UT

(1) The heir disinherited must be designated in such manner that there can be no doubt as to his
identity
(2) The disinheritance must be for a cause provided for by law
(3) The disinheritance must be made in a valid will
(4) The disinheritance must be made expressly stating the cause in the will itself
(5) The cause for the disinheritance must be certain and proved, and must be proved by the
interested heirs if the person disinherited should deny it.
(6) The disinheritance shall be unconditional and total

There are two wills, in the first will, the cause of the disinheritance has been stated and the
disinheritance is made in another will, the requirement is satisfied. Provided that, the necessary
connection between the cause and the disinheritance is clearly established.

Q: What if the disinheritance imposed or provided for in the will is invalid, what would be the
effect of an invalid disinheritance?
A: The effect of an invalid disinheritance is the annulment of institution of heirs insofar as it may
prejudice the legitime of the person disinherited. But the devisees and legacies and other testamentary
disposition shall be valid to such extent as it will not impair said legitime. Hence, the legitime of the
disinherited heir, shall simply be restored.
Except when, the testator did not dispose of the free portion in his will. So if the testator did not dispose
of the free portion in his will to others and the disinherited will is also an intestate heir. The intestate heir
shall receive not only his legitime but also his share in intestate succession.

What are the legal causes for valid disinheritance?

Causes common to all compulsory heirs
 (1) Conviction by final judgment of an attempt against the life of the testator, his or her spouse
descendants or ascendants.
Remember, the existence of the intent to kill, what is crucial is the existence of the intent
to kill and the guilty heir must be convicted by final judgment. So, if the conviction is on appeal,
the conviction is not yet final, he must be convicted by final judgment.
(2) Accusing the testator of a crime for which the law prescribed imprisonment for 6 yrs or more, if
the accusation has been found to be groundless or false.
Remember, this ground will require a judicial declaration that the accusation is
groundless or false, so even if the acquittal is only based on reasonable ground or insufficient
evidence, this ground will not apply and the offense charged must be punishable by imprisonment
of 6 yrs or more
(3) The heir causes the testator to make a will or to change one already made by fraud, violence ,
intimidation or undue influence. F-V-I-UI
(4) Before common cause for all compulsory heirs is unjustifiable refusal to give support.

For disinheritance of children and descendants the unjustifiable refusal to support a parent of
ascendant to disinherit such child or descendant

For disinheritance of parents or ascendants, unjustifiable refusal to support the children or

descendants

For disinheritance of spouse, unjustifiable refusal to support the children or the other spouse.

Other grounds to disinherit children or descendants:

(1) When the child or descendants has been convicted of adultery or concubinage with the spouse of
the testator
(2) Maltreatment of the testator by word or deed by the child or descendants
(3) When the child or descendants lives a dishonorable or disgraceful life
(4) Conviction of a crime which carries with it the penalty of civil interdiction

Other grounds to disinherit parents or ascendants:

(1) When the parents have abandoned their children or induced their daughters to live a corrupt or
immoral life or attempted against their virtue.
Q: What if the son is induced?
(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) The loss of parental authority or causes specified in the family code
(4) An attempt by one of the parents against the life of the other, unless there has been a reconciliation
between them.

Other grounds to disinherit the spouse:

(1) When the spouse has given cause for legal separation
(2) When the spouse has given ground for the loss of parental authority
Q: What is the effect of a subsequent reconciliation?
A: A subsequent reconciliation between the offender and the offended person deprives the offended
person of the right to disinherit, and renders ineffectual any disinheritance that may have been made

Q: What is the required form in case of reconciliation?

A: No required form in case of reconciliation, it may be expressed or tacit.
They love together as husband and wife that may be considered as tacit reconciliation. That will render
ineffective the disinheritance

Grounds for disinheritance which are also causes for incapacity by reason of unworthiness under
Art. 1032 of the NCC:
In case of unworthiness the rule is that if the testator has the knowledge of the cause of unworthiness at
the time he made his will but nonetheless instituted the unworthy heir, the cause shall be without effect.
The testator subsequently learns of a cause of unworthiness but condones it in writing

Q: What is the effect of subsequent reconciliation if the disinheritance has already been made by
any of the grounds which are also causes for unworthiness?
A: The moment the testator uses one of these causes for unworthiness as a ground for disinheritance, he
thereby submit it to the rule of on disinheritance among which is that reconciliation rendered the
disinheritance ineffective

Q: Is there a right of representation in case of disinheritance?

A: Take note, the cause of disinheritance are personal to the disinherited heir, therefore in case of valid
disinheritance only the disinherited heir is deprived of his right to the legitim but the children and
descendants of the disinherited heir can take his place and preserve the disinherited heirs right to the
legitime. In other words, the law allows the children and descendants of the disinherited heir to represent
him with respect to the legitime but the disinherited parent shall not have the usufruct or administration of
the property which constitutes the legitime, even if for example, his children were entitled to represent
him are minors, the law prohibits him from administering the properties which they inherited from their
grandparents by way of representation.

Art. 923. of the NCC must be read in conjunction with Art. 970 of the NICC

Art.923, limits the right of representation only to the legitime such representation however should extend
to everything that would have passed to the disinherited heir by operation of law including the amount
that pertains to him as an intestate heir.
This is supported by Art. 970 which states that the representative acquires the rights which the person
represented would have if he were living or if he could have inherited

LEGACY and DEVISEE

● Devisees are gives of REAL PROPERTY given by virtue of a will
● LEGACIES gives of personal property given by virtue of a will

Q: What can be devised or bequeathed?

A: All things and rights which are within the commerce of man may be bequeathed or devised.
Q: Who is charged with the payment of legacy? Who will pay the legacy?
A: As a rule legacies and devisees are a charge or a burden upon the estate itself and are to be paid by the
executor or administrator unless the testator expressly burdens a particular heir legatee or devisee with
their payment, as far as the heir, legatee or devisee charged are concern the same is considered as a mode,
not a condition, the imposition of the the payment of the obligation to pay a legatee or devisee is
considered a MODE under Art. 882 of the NCC.
Consequently, if there is an administration proceeding the obligation will be performed by the executor or
administrator, if that is done, it will be performed by the heirs themselves.
So, the obligation imposed upon the heir, legatee or devisee to pay a legacy or devise is not considered as
a condition but a MODE.
But this rule is subject to limitations.
Q: What are these limitations?
(1) While a compulsory heir may be charged with the burden of payment of legacies or devisees such
burden cannot be imposed upon the legitime. Hence, the compulsory heir shall not be liable for
the charge beyond the amount of the free portion given him
(2) Insofar as the legatee or devisee is concern, he shall be liable for the charge only to the extent of
the value of the legacy or devise received by him. This rule is applicable also to a voluntary heir
who has been expressly charge with the legacies by the testator. When the testator charges one of
the heirs with the legacy or devise he alone shall be bound, should the testator not charge anyone
in particular or heirs shall be liable in the same proportion in which they may inherit.
This rule applies only in the absence of administration proceedings for the settlement of the
decedent’s estate.

Q: Who will be liable in case of loss or destruction of the thing devised or bequeathed? Who will
bear the loss
A: If the thing devised or bequeathed is lost or destroyed through the fault or negligence of an heir. The
heir shall be liable. If two or more heirs take possession of the estate they shall be solidarily liable for the
loss or destruction of the thing devised or bequeathed even though only one of them should have been
negligent.

Q: What if the legacy is partly owned by the testator and partly owned by a third person? What
rule should be followed?
A: The rule is this, If the testator, heir or legatee owns only a part of an interest in the thing bequeathed
the legacy of devise shall be understood to be limited to such part or interest only, and this rule applies
whether or not the testator knew that the thing was partly owned by a third person/stranger.
Exception:
(1) Unless it clearly appears from the will that the testator intended to convey a less interest
(2) When the testator expressly declares that he bequeaths or devises the thing in each entirety,
before this applies there must:
(a) Be an express declaration to that effect appearing in the will itself. There is a express
declaration that the testator is bequeathing or devising the thing in its entirety, it must
appear in the will itself.
 (b) There must be knowledge on the part of the testator that the thing belongs partly to a third
person. That knowledge must appear either in the will itself or be proved by competent
evidence. Who has the burden of proving the same? The burden being upon the devisee
or legatee favored with such property. Such knowledge on the part of the testator of his
limited right is essential, because the legacy or devise would be void under Art. 930 of
the NCC.
If the property bequeathed belongs to the testator and a third person and the same has been partition or
has been physically divided. Apply the rule that only the interest of the testator shall go to the legatee or
devise.
Problem: If the property is not capable of being divided or it is indivisible or not capable of
physically indivisible
So in that case, there are rules that we should observe.
If the thing is physically indivisible or inconvenient of division, the rules applicable shall depend upon
whether the thing is finally adjudicated to the testator or to the other owner
The Rules:
(1) If the entire property is adjudicated to the testator the subsequent acquisition does not affect the
legacy or devisee, The rules stated in Art. 920 and Art. 930 of the NCC are still applicable
(2) If the property is adjudicated to a third person, and the testator has not expressly declared that
he/she bequeaths or devises the property in its entirety, the legacy or devise shall be without
effect, applying the provisions of Art. 957 (2) of the NCC which declares that the alienation of
the thing bequeathed or devise shall result in the legal revocation of the legacy or devise.
(3) If the testator has expressly declare that he bequeaths or devises the property in its entirety, the
transfer of his interest in such property to the third person annuls the legacy or devise only to that
part which formerly belong to him, and which has pass to the third person but leaves effective the
legacy or devise with respect to the part belonging to the third person and which continues to so
belong to such third person.
Exemple: Boy Abunda - Property co-owned by Mr. Tulagan - in his will he bequeathed a devise
in favor of Mr. Rudio.
A: Mr. Rudio will ask the estate (heirs/administrator) of Mr. Boy Abunda to deliver to him the
value of the property given to him by way of devise. Reasonable value of the property. It is
determined by the Court.

Q: If at the time of the execution of the will, the testator erroneously believe that the thing
belongs to him and he gave it to Mr. Rudio? Is Mr. Rudio entitled to the devise?
A: That kind of legacy or devise is VOID. As a rule if at the time of the execution of the will . . . .
look at Art. 930 of the NCC.

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.

If at the time of the execution of the will the testator erroneously believed that the thing belonged
to him, the legacy or devise is VOID.
 But if afterwards, the thing is acquired by the testator by whatever title the devise or legacy
becomes valid.

Even if the thing belonging to another, the testator may in his will order that the thing be acquired
in order that it be given to the legatee or devisee.
Q: Who will acquire the thing bequeathed?
A: The obligation to acquire is being impose upon a particular heir, devisee or legatee. In the
absence of express designation of such obligation, such obligation will rest upon the executor or
administrator or if there is no executor or administrator the heirs of the testator.

If the thing cannot be acquired for whatever reason, the legacy or devise remains valid and the
heir or estate as the case may be shall be obliged to give the just value.

But if the testator knew that the thing belong to another but did not expressly order for its
acquisition, the devise or legacy is still VALID because it is presumed that his intention that such
thing which is bequeathed or devise must be acquired either by the executor or administrator of
the estate or by the heir devisee of legatee charged with such legacy or devise.

Q: What if the thing bequeathed belongs to the devisee or legatee?

A: If at the time of the execution of the will the thing already belong to the legatee or devisee, the
legacy or devise shall be INEFFECTIVE. This rule applies whether the testator know or not of
the circumstance that the thing already belong to the legatee or devisee. Even if the thing may
have been subsequently alienated by the devisee or legatee, the devise or legacy is still
INVALID.

Q: What if the thing is burdened by a charge or encumbrance in favor of a third person? Is

the legacy or devise valid?
A: The legacy or devise is VOID. Exception, if the testator expressly states that the charge or
encumbrance shall be extinguished that the legacy or devise to such extent shall be valid.
If the thing is subsequently alienated, the legatee or devisee is still INVALID but subject to
another exception, if the alienation is in favor of testator himself and it continues in the
possession of the testator at the time of his death in that case the legacy or devise is valid
applying by analogy Art. 930 of the NCC.

................

November 8, 2021
Q: What if at the time of the execution of the will the thing did not belong to the legatee or devisee
but the legatee or devisee subsequently acquired the thing, what are the rules that you should
apply?
The Rules that you should apply if at the time of the execution of the will the thing did not belong to the
legatee or devisee but he subsequently acquired it are:
 (1) If the thing originally belonged to a third person at the time of the execution of the will and the
testator did not know of such fact the legacy or devise is VOID. and it continues to be void even
if the legatee or devisee subsequently acquires it by any title.
What if there is only an error? If there was an error and the thing was acquired erroneously by the
legatee or devisee, the legatee or devisee can demand reimbursement from the heir or the estate.
(2) If the thing acquired gratuitously by the devisee or legatee, the devisee or legatee can claim
nothing by virtue of legacy or devise.
(3) If the thing was owned by the testator at the time of the execution of the will but it was
subsequently acquired by the legatee or the devisee, what will be the rule that should be
followed?
(a) If acquired from the testator by the legatee or devisee, there is no intention to revoke on
the other hand the intention is clearly to comply with the legacy or devise especially if the
alienation is gratuitous, if the alienation is by gratuitous title since the law makes no
distinction the legatee or devisee should still be entitled to the price paid by him. If the
testator has not alienated the thing directly to the legatee or devisee but to the third person
from whom the legatee or devisee acquires the same, by onerous title, the devisee or
legatee is entitled to nothing. The alienation by the testator to a third person constitutes a
revocation of legacy or devise under Art. 957 of the NCC. So, the mere fact that the
legatee or devisee subsequently acquires it from the third person, even by onerous title
will not revive the legacy or devise.
There are also legacy or devise of things which are pledge or mortgage, of the thing given or bequeathed
is pledge or mortgaged. The rule is that the estate is obliged to pay the debt to remove the encumbrance
unless the contrary intention appears. That's the general rule and this same rule applies whether the thing
is pledge or mortgage after the execution of the will. As to any other charge, other than encumbrances
created by pledge or mortgage be it perpetual or temporary with which the thing bequeathed is burden
the same passes to the legatee or devisee.

Q: What if what was given is a legacy of credit?

Legacy of Credit, this credit refers to the credit which the testator has against a third person, this
legacy shall be effective only as regards that part of the credit existing at the time of the death of the
testator. In that case, the estate shall comply with the legacy by assigning to the legatee all rights of action
it may have against the 3rd person debtor.
The legacy shall comply with all interest on the credit which may be due , the testator at the time
of his death, the legacy of credit includes all interest due at the time of the death of the testator.
This legacy is revoked by operation of law if the testator after having been made it should bring
an action against the debtor for the payment of his debt. Even if such payment should not be effected at
the time of his death. The filing of an action to recover or to collect the debt against the debtor by the
creditor although he has already made a provision in his will giving such credit to an heir will amount to a
revocation by operation of law.
Q: What if the legacy given is a remission of debt?
Take note, that the civil code distinguishes three kinds of legacy of remission or release of debt.
These three kinds of remission or release of debts under the civil code:
(1) Specific legacy for the remission of an indefinite debt
● This is regulated by Art. 935 and 936 (1) of NCC
 ● The specific legacy shall be effective only as regards that part of the debt existing at the
time of the testator’s debt, in that case, the estate shall comply with the legacy by leaving
the legatee an acquaintance should the legatee request the same or request for one, this
kind of legacy is revoke by operation of law 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 made or effective at the time of the death of the testator.
(2) Generic legacy for the remission of all debts of the legatee existing at the time of the
execution of the will
● This is regulated by Art. 937 of the NCC which states that such release comprises all
debts existing at the time of the execution of the will but not subsequent ones. The legacy
to the debtor of the thing pledge by him is understood to discharge only the right of the
pledge.
● Legacy in favor of the creditor, the rule is that a legacy or devise made to a creditor shall
not be applied to his credit. The exception is unless the testator so expressly declares in
that case the creditor shall have the right to collect the excess if any of the credit or the
legacy or devise. When the testator does not expressly state that he leaves a legacy to the
creditor but merely directs that his executor to pay a debt which he recognize as existing
in favor of a person may in the will there is no legacy in favor of the creditor who is not
thereby relieve of the duty of presenting its claim to the probate court for allowance.
● An instruction to pay a debt is not a testamentary disposition, but merely a direction to
discharged a civil obligation. If the testator orders the payment of what he believes he
owes but does not in fact owe the disposition shall be considered as not written.
● If the testator orders the payment of specified debt, more than the amount thereof, the
excess is not due unless a contrary intention.
● There are also what we call alternative legacies or devises, when do you say that a legacy
and devise is alternative. A legacy and devise is alternative when the testator bequeaths
one of two or more things that he designates. In this case, the right of choice is presumed
to be left to the heir upon whom the obligation to give the legacy or devise may be
disposed or the executor or administrator of the estate if no particular heir is obliged if the
designated heir legatee or devisee dies before making the choice, this right shall pass to
their respective heirs. Once the choice is made it becomes irrevocable.
● Generic Legacy or devise, legacy of generic personal property shall be valid even if
there is no thing of the same kind in the estate, on the other hand a generic devise of
indeterminate real property shall be valid, only if there be immovable property of its
kind in the estate.
● Who has the right of choice, the right of choice shall belong to the executor or
administrator who shall comply with the legacy by delivery of a thing which is neither of
inferior nor of superior quality. Whenever the testator expressly leaves the right of choice
to the heir or to the legatee or devisee, the testator may give or the heir devisee or legatee
be chosen whichever he may prefer. If the heir legatee or devisee cannot make a choice in
case has been granted to him this right shall pass to his heirs. Once the choice has been
made, the choice is irrevocable.
● When does the Right of legatee or devisee vest acquire a definite right to pure and simple
legacies or devises from the moment of death of the testator, from that moment on, the
 legatee or devisee acquires a definite right that he can transmit to his own heir. If the
legacy or devise is of a specific or determinate thing pertaining to the testator the legatee
or devisee acquires the ownership thereof upon the death of the testator together with the
fruits and income which remain,ungathered or uncollected at the time of the death of the
testator. If the bequeaths should not be of specific or determinate thing but is of generic
or quantity, the obligation to deliver arises only upon making the selection. Hence, the
fruits and income belong to the legatee or devisee only at that time of the delivery,
however the fruits and interest from the time of the death of the testator shall pertain to
the legatee or devisee if the testator expressly so orders. The thing bequeathed shall be
delivered with all its accession and accessories and in condition in which it maybe upon
the death of the testator. There is what we call rule of preference among the legatee
and devisees. Rule are the following:
(a) If the estate is not sufficient to cover all the legacies or devisees their payment
shall be made in the following order:
(1) The order of remunitory legacies or devisees.
(2) Legacies or devisees declared by the testator to be preferential
(3) Legacies for support
(4) Legacies for education
(5) Legacies or devisees of a specific determinate thing which form part of
the estate
(6) All others pro rata.
Take Note: Art. 950 of the NCC, covers a situation where the entire inheritance has been distributed in
legacies and to those cases where the legitimes of compulsory heir had been sufficiently provided for by
the testator and there are no donation inter vivos chargeable against the free portion or free part. In other
words, while the question of preference is exclusively among the legatees and devise themselves, either
because there is no compulsory heir or the testator has already provided in his will sufficient property to
cover the legitime, the rule under Art. 950 of the NCC applies. But in case of concurrence of legitimes,
donations inter vivos and devisees and legatees, the rule under Art. 911 of the NCC should be applied, in
which case, the devisees and legatees shall be reduced pro rata without any distinction whatever, except
when the testator has directed that a certain devise or legatee be paid in preference to the other in which
case each shall not suffer any reduction until the other other devisees and legatees had been applied in full
to the payment of the legitime.
Q: When is legacy and devise revoked by operation of law?
A: A devise or legacy is revoked by operation of law if
(1) The testator transforms the thing bequeathed in such 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 if being
understood that in this case, by alienating a part of the thing bequeathed the legacy or devise shall be
without effect with respect to that part alienated. If after the alienation the thing should again belong to
the testator even if, by reason of the nullity of the contract the legacy or devise shall not thereafter be
valid, unless the reacquisition shall be effected by virtue of the exercise of a right of repurchase;
(3) If the thing bequeathed is totally lost during the lifetime of the testator or after his death without the
heirs fault, nevertheless the person obliged to pay the legacy or devise shall be liable for eviction if the
thing bequeathed should have not been determinate as to its kind in accordance with the provisions of Art.
928 of the NCC.

(3) Legacy to the debtor to the thing pledge by him

INTESTATE OR LEGAL SUCCESSION

Q: What do you mean by this intestate or legal succession?

A: Intestate or legal succession is that which takes place by operation of law in the absence of a valid will.
So, if there is a will there is no way an intestate succession takes place, unless if there are other parts of
the estate which were not disposed of by a will.

Basic Principles in the law of Succession:

(1)The intent of the testator is the SUPREME LAW in succession. Hence testacy is favored over
intestacy. So in case of doubt, doubts are always resolve in favor of testacy specially where the will
evidences intention on the part of the testator to dispose of practically his whole estate.
Q: When does a legal succession take place?
A: (1) Legal succession takes place when a person dies without a will or when the will is void or when the
will has subsequently lost its efficacy in which case legal succession shall take place with respect to the
entire inheritance.
(2) When the will does not institute an heir or when the institution is void or when the will does no
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 dispose of by way of will.
(3) When the suspensive condition attached to the institution of heir does not happen or is not fulfilled or
when the heir repudiates the inheritance and there be no substitution and no right of accretion takes place
(4)When the heir dies before the testator or when the heir instituted is incapable of succeeding in there be
no substitution and no right of accretion or representation take place

WHO ARE THE LEGAL OR INTESTATE HEIRS?

In general and with some qualification, the legal heirs are the legitimate and illegitimate relatives of the
deceased, the surviving spouse and last is the state. These are the legal intestate heirs.

Basic rules of intestate succession

1. Rule of preference between lines, according to this rule those in the direct descending line shall
exclude in the succession those in the direct ascending and collateral lines and those in the direct
ascending line shall in turn exclude those in the collateral lines. Example of relative in collateral
line, Cousins-Nephew-Auntie/Uncle-Brothers and Sisters
Legal succession pertains in the first place to the descending direct line which shall exclude the
legitimate parents and ascendant of the deceased and those who are in collateral lines.
Heirs descending direct line, Children, grandchildren.
 Hence, if there are descendants in the direct line, the legitimate parents and other ascendants can
not inherit by way of intestate succession. The legal heirs in the direct descending line include the
legitimate children and their descendants as well as the adopted children.
Q: How about the Surviving Spouse, is the surviving spouse an heir in the direct line?
A: No. They are concurring heirs.
The Surviving spouse and the illegitimate children of the deceased concur however with the
legitimate children and descendants, they will inherit together with the legitimate children and
descendants. In default of legitimate or adopted children and descendants, the legitimate parents
or ascendants of the deceased shall inherit from him to the exclusion of collateral relatives.

If there are no descendants, ascendants, illegitimate children or surviving spouse, the collateral
relatives shall succeed to the entire estate of the deceased. In default, descendants, ascendants,
illegitimate children or surviving spouse and collateral relatives within the 5th degree of
relationship the state shall inherit the whole estate.
How do you compute this degree? One degree per generation.
Start with the origin.
Degree from grandparents? 2 degrees
Degree from aunt/uncles? 3 degrees
Degree from 1st cousin? 4 degrees
2. The rule of proximity and rule of equal division, in legal succession the relative nearest in
degree excludes the more distant ones except when the right of representation properly takes
place. Hence, the order of preference between lines is first observe and within its line the rule of
proximity applies. Observe first the preference between line and within this line you apply the
rule of proximity
3. .This is the rule of equal division, Relatives in the same degree shall inherit in equal shares,
EXCEPT,
(1) If brother and sister in the full blood survives together with the brothers and sisters of a half blood
blood, the brothers and sisters of full blood inherits to a share double that of the brothers and sisters in the
half blood. Ratio that will be applied is two is to one 2-1.
(2) Should there be ascendants in both lines, one half of the inheritance shall go to the paternal and one
half shall go to the maternal line, and in each line, the division shall be made per capita.
(3) Whenever there is succession by representation, the division of the estate shall be made per stirpes in
such manner that the representative although in the same degree shall not inherit more than what the
person they represent would inherit if he were living or could inherit.

In case of predecease, the child who predeceased his parents left 10 children, he is entitled of 25% of the
estate of his parents. The 25% will be divided among his children equally. That’s what we call per stirpes.
Q: How do you compute degrees and how do you determine the lines?
A: Proximity of relationship is determined by the number of generations, each generation forms a
degree. A series of degrees forms a line which may be either direct or collateral. So a direct line is
constituted by the series of degrees among the descendants and ascendants. Example father and daughter
are within the direct line.
A collateral line is that constituted by the series of degrees among the persons who are not ascendants or
descendants but who come from a common ancestor. Example, brother and sister are collateral relative
and their common ancestor are their parents. The direct line is either descending or ascending, the
descending line unites the head of the family with those who descend from him, the ascending line finds a
person with those from who he descends.

Rule in repudiation and incapacity, In case of incapacity the share which is rendered vacant shall pass
to the co-heirs within the same degree, if the right of representation is not obtained. Example, Romero,
Rudio, Pulgar, Tulagan, Veloria are brothers, however Pulgar is incapacity to succeed the share of Pulgar
will accrue to Romero, Rudio, Tulagan, Veloria who will share to the same in equal division. However, if
Pulgar has a son, who has the right to represent him? The share of Pulgar will not accrue to his brothers,
but it shall be inherited by his son by virtue of the right of representation.
Take note that the right of representation takes place not only in case of incapacity to inherit but also in
case of predeceased and valid disinheritance. But it does not take place in case of repudiation.
In case of repudiation, where there is no right of representation, observe the following rules: (1) If not all
the of the heirs within the same degree repudiates but only some of them the share of those who did not
accept shall accrue to the co-heirs within the same degree, this is a case of ACCRETION. If all of the
heirs within the same degree repudiates their inheritance those of the next degree shall inherit in their own
right or per capita.

Q: What do you mean by this right of representation?

A:Representation is the right created by fiction of law, by virtue of which the representative is rise to the
place and degree of the person represented and acquires the rights which the person represented would
have if he were living or if he could have inherited. By right of representative a more distant relative of a
decedent is by operation of law rise in the same place and degree of relationship as that of the closer
relatives of the same decedent. So, the representative thereby steps in the shoes of the person he
represented and succeeds not from the person represented but from the person to whose estate the person
represented would have succeeded.

Remember that representation takes place only with respect to inheritance conferred by law thus
representation takes place only in the following kinds of succession: (1) Legal or Intestate succession ; (2)
Or in testamentary succession but only with respect to the legitime. There is no right of representation
with respect to a voluntary heir, who succeeds only by virtue of a will.

The representation obtains degree by degree and no jump is made. Thus, a son represents his father, the
father, the grandfather and so on. Consequently, when the father repudiates the inheritance from great
grandfather, the son cannot inherit from the great grandfather by representing the grandfather, who is not
the relative immediately preceding him in degree of relation. The representative is called to the
succession by law and not by the person represented, so the representative does not succeed the person
represented but the one whom the person represented would have succeeded.
The representative merely steps into the shoes of the person represented. If you are the representative you
can only inherit the portion in which the person you are representing should rightfully received.
Example, Mr. Boy Abunda repudiated his inheritance from his father, his father predeceased the
grandfather of Mr. Boy Abunda. May Mr. Abunda represents his father in the inheritance of his
grandfather? YES. Right of representation will not apply only if it is the father who repudiates his
inheritance from his father, in this case it is Mr. Abunda who repudiated his inheritance from his father,
and the father of Boy Abunda, decided to die ahead of his father?
A son who repudiates his inheritance from his father does not lose the right to represent to represent his
father from the inheritance of his grandfather. A great grandson, may be called to the inheritance of his
great grandfather even if the grandfather should die ahead or should die before the great grandson has
been conceived.

A son who cannot inherit from his father on the ground of unworthiness can still inherit from his
grandfather by representing his father provided that he himself is not unworthy with regard to the
grandfather. SInce, the representative inherits from the decedent and not from the person represented, his
capacity and right to succeed must be determined in relation to the decedent and not the person
represented, this principle is stated under Art. 973 of the NCC.

Q: Who is entitled to represent? Are illegitimate children entitled to represent?

A: Article 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon
their death to their descendants, whether legitimate or illegitimate.
By virtue of Art. 902 of the NCC the illegitimate descendants are allowed to represent the illegitimate
child who predeceases his own parents but only with respect to the legitime of the illegitimate child. Art.
902 was no application to intestate succession because of the strictive word set forth in the preceding
articles, in Art. 902.
With respect to intestate succession, illegitimate children can however represent their parents if their
parents are also of illegitimate filiation by virtue of Art. 989 and 990 of the NCC. In other words, an
illegitimate grandchild can represent in the succession to the estate of an illegitimate grandparent. Which
means that his parent, father or mother is also illegitimate.
In all these three Articles 902,989 and 990 however which speaks of successional rights of illegitimate
children whose rights are transmitted to their descendants upon their death. Take note, that the persons to
be represented are themselves illegitimate, they themselves are illegitimate. Hence, the right of
representation is available to illegitimate descendants of illegitimate children in the inheritance of
illegitimate grandparents but not available to illegitimate descendants of legitimate children in the
inheritance of a legitimate grandparent.

Q: How about adopted children? Are they entitled to represent?

A: The relationship established by adoption is limited to the adopting parents and the adopted child and
does not extend to their other relatives. Except as expressly provided by law. Based on this rule, the right
to represent does not succeed the person represented but the one whom the person represented would
have succeeded. If the adopting parent should die before the adopted child, the adopted child cannot
represent the adoptive parents in the inheritance of the parents of the adoptive parents or his ascendants,
because the adopted child is not related to the deceased in case the filiation is created by fiction of law
being exclusive between the adopter and the adopted. The same way the children and descendants of the
adopted child cannot represent him in the succession to the estate of the adopter since there is no legal
relationship between the adopter and the children of the adopted. Legally, the children of an adopted child
are not the descendants of the adoptive parents.
Q: What are the causes that gave rise to the right of representation?
A: There are three causes that justify the right of representation.
(1) Art. 981 and 982 provide for representation by the grandchildren and other descendants by
reason of predecease of the children represented.
(2) Art. 923 allows the children and descendants of the person disinherited to take his place and
retain the right of compulsory heir with respect to the legitime
Art 923 refers to representation with respect only to the legitime, the correct view is that the
representation should extend to everything that would have pass to the disinherited heir by
operation of law, this include the amount that pertains to him as an intestate heir and not only as
that compulsory heir, as Art. 970 provides the representative acquired the rights which the person
represented would have if he would living or if could have inherited.

ORDER OF SUCCESSION
(1) Order of Succession to a legitimate child. In general and without prejudice to the
concurrent right of other heirs, the order of succession (intestate) to a legitimate child:
(a) Legitimate children and descendants
(b) Legitimate parent and ascendants
(c) Illegitimate children
(d) Surviving spouse
(e) Collaterals up to the 5th degree
(f) State
Legitimate children and the descendants, exclude legitimate and ascendants, the collateral relatives and
the state. An adopted child succeeds to the property of the adopting parents in the same manner as a
legitimate child. Under Sec. 18 of the Domestic Adoption Act, the adopter and the adoptee shall have
reciprocal rights of succession without distinction from legitimate filiation in legal and intestate
succession. Hence, the adopted child is likewise exclude the legitimate parents and ascendants in legal
succession. However illegitimate children and surviving spouse concur with the legitimate children and
descendants in legal succession. If illegitimate children survive with legitimate children the shares of
illegitimate children shall be in proportion prescribed under Art. 176 of the FC under which the share of
each illegitimate children is ½ (one-half) of the share of each legitimate child.
In determining the share of each, the respective legitimes must first be determined and the disposable
portion distributed among them in the proportion established in the Art. 176. Their shares in the
disposable portion should then be added to their respective legitimes to find their total shares in the
intestate succession.
Example, estate 140k - One legitimate child and One illegitimate child. Always remember the ration. 2 is
to 1
Formula x=140k = 2x+x=140k. 140k divided by 3 = 46.67K. Legitimate child entitled of times two of
share = 93.34K while illegitimate child is entitled of 46.67K. Apply the ratio under Art. 176 of the civil
code.

If there is one legitimate child and three illegitimate children = Legitime of the legitimate child is 70k =
estate 140k. 35k is the share of each illegitimate child, since the entire estate cannot cover the same; the
remaining 70k will just be divided equally among the illegitimate child. 23.3k each of the illegitimate
child.
If there are 2 legitimate children and one illegitimate child = 140K estate.
2x+2x+x=140k = 56k for each legitimate child and 28k for the illegitimate child

If the surviving spouse or legitimate children or descendants are left

Surviving spouse - succession the same share as that of share each of the children, the same rule applies
even if there is only one legitimate child, following the maxim of statutory construction that the words in
plural include the singular, in which case the share of the surviving spouse shall be the same as that of the
child. If the legitimate children or their descendants concurs with the surviving spouse and illegitimate
children the surviving spouse shall be entitled to a share as that to a legitimate child while the share of
each of the illegitimate children shall be one half of the share of each legitimate child.
If after satisfying the legitime of the legitimate children or their descendants, the remaining portion is not
sufficient to cover the legitimes of the surviving spouse and the illegitimate children, the law on legitime
shall be applied, that the legitime and the legitimate children and that of surviving spouse shall be
preferred and the reduction must be suffered by the illegitimate children. There is no reduction
whatsoever with respect to the legitime of the legitimate children and the surviving spouse, it will be the
illegitimate children who will suffer reduction.
NOTE: Always satisfy (first) the legitime of the legitimate children and the surviving spouse, if there is
remaining portion in the estate, then that will be divided among the illegitimate children.
Upon the death of the adopted child leaving no children or descendants the adopter is considered the legal
heir of the adopted child who will exclude the parents by nature of the adopted child. Section 18
Domestic Adoption Act.
In intestate succession in the direct ascending line the legitimate parents and his ascendant can inherit ab
intestato only in default of legitimate children and descendants including adopted children. The direct
ascending line excludes the collateral line and the state but concurs with illegitimate children and the
surviving spouse. If the legitimate ascendant concurs with illegitimate children, the ascendants get one-
half and the illegitimate children get the other half. In case of partial intestacy, the net estate is 80K the
deceased is survived of his parents and illegitimate children, but he life a will giving 10k as a legacy to
Mr. Rudio. Estate will be divided in this kind of situation, determine first how much of the disposable
portion goes by testatacy to the concurring heirs and deduct the legacy for such portion to be borne
proportionately by the concurring heirs. Estate is 80k, the parents will get 40k (half of it) free portion is
40k from the remaining 40k, the 10k shall be deducted, and the remaining 30k goes to illegitimate
children.
This kind of solution satisfies both the legitime of the compulsory heirs and gives effect to the provision
of Art. 991.
When the surviving spouse concur 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.
The intestate share of the ascendants, is the same as that of their legitime while the intestate share of the
surviving spouse, is more than his/her legitime of one-fourth ¼ hence in case of partial intestacy the
devisees and legacies and other testamentary disposition must be taken from the intestate share of the
surviving spouse without prejudice to his or her legitime.
In legitimate ascendants the surviving spouse and the 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 ¼. The intestate share of the ascendants and the illegitimate children are the
same as the respective legitime, while the intestate share is more than his/her legitime which is ⅛ of the
estate. Hence, there are legacies, devisees and other testamentary dispositions there amounts must be
charged against the share of the surviving spouse without impairing his/her legitime.

ORDER OF SUCCESSION OF ILLEGITIMATE CHILDREN

Illegitimate children are not excluded by legitimate descendants or ascendants, they concur with the
surviving spouse, in the absence of legitimate ascendants and descendants and the surviving spouse. The
illegitimate children shall succeed to the entire estate of the deceased. If the surviving spouse survives
with the illegitimate children, such surviving spouse shall be entitled to one-half of the inheritance and the
illegitimate children or their descendants to the other half.
The legitime of the surviving spouse and illegitimate children are both one-third ⅓ under the law. Hence,
in case of intestacy the legacies and devisees and other testamentary disposition must be taken equally
from the intestate shares provided under the law without impairing the legitime of the surviving spouse
and the illegitimate children.
That is what we call the IRON CURTAIN RULE, Art 992 of the NCC provides a barrier or iron curtain in
that it prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate
children and relatives of the father or mother of said legitimate child. The reason for this prohibition is
that between the legitime family and illegitimate family there is presumed to be an intervening
antagonism and incompatibility.