I.

SUCCESSION
A. GENERAL PROVISIONS
 Succession – 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. (Art. 774, CC)
- Also 1 of the mode of acquiring ownership.

 Kinds of Succession:
a. As to origin:
i. Testamentary or testacy (by will)
ii. Legal or intestacy (by operation of law based on the
decedent’s presumed will)
iii. Mixed (partly testamentary and legal)
b. As to effectivity:
i. Inter vivos (takes effect during the lifetime of the decedent)
ii. Mortis causa (takes effect after the death of the decedent)
c. As to extent:
i. Universal (covers all property, rights and obligations of the
decedent)
ii. Particular (limited to certain specific items)
d. As to part of property transmitted:
i. Forced or compulsory (takes place with respect to the
legitime)
ii. Voluntary (takes place with respect to the free portion)

 Elements of Succession:
- Death (either actual or presumed) of the decedent
- Transmissible inheritance
- Successor/s (living and capacitated to inherit)
- Acceptance or non-repudiation by the successor of the inheritance

 From the moment of death, the rights to succeed are transmitted (Art.
777, CC)
 A person may be presumed dead for the purpose of opening his
succession = Absent for at least 10 years; 75 years old = 5 years; under
exceptional circumstances (on board a vessel, plane, in times of war) = 4
years [Art. 390, CC]
 Inheritance - includes all the property, rights and obligations of a person
which are not extinguished by his death. (Art. 776, CC)
 Successors – are the heirs or those who are called to the whole or to an
aliquot portion of the inheritance either by will or by operation of law.
B. TESTAMENTARY SUCCESSION
1. WILLS – 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. (Art. 783, CC)

 Kinds of Wills:
i. Notarial or ordinary – that which requires compliance with
formalities prescribed by law.
ii. Holographic – that which is entirely written, dated and signed by
the hand of the testator himself.

 Characteristics of wills:
i. Unilateral – because you do not need the concurrence of the
heirs.
ii. Strictly personal – the following are solely dependent upon the
will of the testator:
-duration or efficacy of the designation of heirs, devisees, or
legatees;
-determination of the portions which they are to take, when
referred to by name; and
-determination of whether or not the testamentary disposition is
to be operative.
 However, the following may be entrusted to a 3rd person:
-distribution of specific property or sums of money that he
may leave in general to specified classes or causes; (ex. to
all my cousins) and
-designation of the persons, institutions or establishments
to which such property or sums are to be given or applied.
Other characteristics:
iii. Free and voluntary act – absence of force, intimidation and undue
influence.
iv. Formal and solemn act – compliance with the formalities
prescribed by law.
v. Act mortis causa – takes effect only after the death of the T.
vi. Ambulatory - revocable during T’s lifetime.
vii. Individual act – joint will is prohibited.

 Law governing validity of wills:

i. Extrinsic validity – law of the place of execution and the law in
force at the time it is made.
(Joint will is void in the Phils. even if valid in the country where it
was executed.)
ii. Intrinsic validity – national law of the decedent and the law at the
time of the death of the decedent.
 Testamentary capacity – refers to the ability as well as the power to make
a will.
o Requisites:
- at least 18 years of age
- of sound mind (ability to know the nature of the estate to be
disposed of; the proper objects of his bounty; and the character of
the testamentary act)

 Formalities of wills:
o Common formalities:
- every will must be in writing; and
- executed in a language or dialect known to the testator.
o Special formalities:
 Notarial or ordinary wills
- it must be subscribed at the end by the testator himself
or by the testator’s name written by some other person in
his presence and by his express direction;
- it must be attested and subscribed by at least 3 or more
credible witnesses in the presence of the testator and of 1
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 stating the matters
mention in Art. 805, CC;
- it must be acknowledged before a notary public by the
testator and the witnesses.

 Witnesses to a notarial will:

- of sound mind
- 18 years or over
- not blind, deaf or dumb
- able to read and write
- domiciled in the Phils.
- has not been convicted of falsification of document, perjury or false
testimony

 Holographic wills:
- it must be written in a language or dialect known to the testator;
- it must be entirely written by the testator;
 - it must be dated by him;
- it must be signed by him; and
- it must be made with animus testandi (intention to make a will)
o During the probate of a holographic will:
- at least 1 witness who knows the handwriting and signature of
the testator must explicitly declare that the will and the signature
are in the handwriting of the testator
- if the will is contested, at least 3 witnesses shall be required
- in the absence of any competent witness, and if the court deems
it necessary, expert testimony may be resorted to

 Joint will – one where the same testamentary instrument is made the will
of 2 or more persons and is jointly executed and signed by them.
(PROHIBITED)
 Mutual or reciprocal wills – separate wills of 2 persons which are
reciprocal in their provisions, giving the separate property of each
testator to the other.
 Joint and mutual will – one executed jointly by 2 or more persons, the
provisions of which are reciprocal, and which shows on its face that the
bequests are made on 1 in consideration of the other. (PROHIBITED)
 Codicil – 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. (Art. 825, CC)
 Incorporation by reference – contemplates only lists of properties, books
of accounts, and inventories.

 Revocation of wills and testamentary provisions:

o Revocation – an act of the mind, terminating the potential
capacity of the will to operate at the death of the testator,
manifested by some outward or visible act or sign, symbolic
thereof.
o Ways of revocation:
- by implication or operation of law (ex. legal separation,
preterition, etc.)
- by the execution of some will, codicil or other writing (revocation
by subsequent instrument: express or implied)
- by burning, tearing, cancelling or obliterating with intent to
revoke [animus revocandi] (revocation by overt acts)

 Republication – the re-establishment by the testator of a previously

revoked will or 1 invalid for want of proper execution as to form or for
other reasons, as to give validity to said will.
 Kinds:
 - by re-execution or reproducing in a subsequent will the dispositions
contained in a previous one
- by execution of a codicil referring to a previous will

 Revival – done by the execution of a 3 rd will or a codicil, after the 1 st will

was revoked by a 2nd will.
 Allowance and Disallowance of wills:
o Probate – a special proceeding mandatorily required for the
purpose of establishing the validity of a will.
o Kinds of probate:
- ante mortem or that which is had upon petition by the testator
himself during his lifetime; and
- post mortem or that which is had after the testator’s death.
o Grounds for disallowance of will:
- if the formalities required by law have not been complied with;
- if the testator was insane or mentally incapable of making a will
at the time of its execution;
- if it was executed through force or under duress or the influence
of fear or threats;
- if it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other person;
- if the signature of the testator was procured by fraud;
- 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.

2. INSTITUTION OF HEIRS (including declaration of heirship as decided in Treyes

v. Larlar, G.R. No. 232579, September 8, 2020)
- An act by virtue of which a T designates in his will the person/s who are
to succeed him in his property and transmissible rights and obligations.
(Art. 840, CC)
- Test to determine the validity of an institution of heir: the possibility of
finally ascertaining the identity of the instituted heir by intrinsic or
extrinsic evidence.
- Requisites for a valid institution of heir:
1. The will must be extrinsically valid;
2. There must be no impairment of the legitime;
3. The heir must not predeceased or incapacitated or repudiate.

 Presumption of Equality – heirs instituted without designation of shares

shall inherit in equal parts.
Ex. T instituted X,Y,Z as heirs to an estate of 900k without designation of
shares (X,Y,Z = 300k each)
  Presumption of Individuality – when the T institutes some heirs
individually and the other collectively, those collectively designated shall
be considered as individually instituted, unless it clearly appears that the
intention of the T was otherwise.
Ex. T institutes X, Y and the children of Z (A and B) to an estate of 180k (X,
Y, A, B = 45k each)

 Presumption of Simultaneity – when the T calls to the succession a

person and his children, they are all deemed to have been instituted
simultaneously and not successively.
Ex. T institutes X and X’s children, A and B to an estate of 6M (X, A, B =
2M each)

 Institution to only a portion of the inheritance:

- if the institution is limited to aliquot portions, legal succession shall take
place with respect to the remainder of the estate
- but if it was the intention of the T that the instituted heirs should
become sole heirs, the aliquot parts shall be increased proportionally
- if the aliquot parts exceed the inheritance they shall be reduced
proportionally

 Preterition – the omission in the T’s will of 1, 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 T. (Art. 854, CC)
 Requisites:
- the heir omitted must be a compulsory heir in the direct line;
- the omission must be complete and total in character; and
- the compulsory heir omitted must survive the T.
 Effects of preterition:
- it annuls the institution of heir;
- the devises and legacies are valid insofar as they are not inofficious; and
- if the omitted compulsory heir should die before the T, the institution
shall be effectual, without prejudice to the right of representation.
(*spouse is not a compulsory heir in the direct line)

 Imperfect Disinheritance
Ex. T with an estate of 1.2M, instituted A (son) and B (son) was
disinherited without cause and F as legatee (car) worth 200k, A = 300k as
legitime + 400k as instituted heir; B = 300k as legitime; and F = 200k

3. SUBSTITUTION OF HEIRS
 Substitution – the appointment of another heir so that he may enter into
the inheritance in default of the heir originally instituted (Art. 857, CC).
 Kinds:
 i. Simple or common – when the T designated 1 or more persons to
substitute the heir/s instituted in case such heir/s should die
before him, or should not wish, or should be incapacitated to
accept the inheritance.
ii. Brief or compendious – if 2/more persons are substituted for 1
heir or if 1 person is substituted for 2/more heirs.
iii. Reciprocal – 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.
iv. Fideicommissary – where the fiduciary / 1st heir instituted is
entrusted with the obligation to preserve and to transmit to a 2 nd
heir the whole / part of the inheritance.
Ex. T instituted his cousin A as 1st heir and B (son of A) as
fideicommissary substitute. B predeceased A, and left X and Y as
heirs.
T (died 2018) – A as fiduciary (died 2020)
|
B as fideicommissary (died 2019)
/\
X Y (both may claim the property)

 Limitations on Fideicommissary Substitution:

- the substitution must be made expressly
- must be imposed on the free portion and not on the
legitime
- must not go beyond 1 degree from the heir originally
instituted (ascending or decending line)
- both the 1st heir and the 2nd heir must be living at the
time of the death of the T

4. CONDITIONAL TESTAMENTARY DISPOSITIONS AND THOSE WITH A TERM

 The institution of an heir may be made:
i. Conditionally
ii. For a term
iii. For a certain purpose or cause (modal)
 Conditions, terms, and modes however are not presumed, they must be clearly
expressed in the will. The condition must fairly appear from the language of the
will, otherwise, it is not binding.
 Limitations:
- the T cannot impose any charge, burden, encumbrance, condition, or
substitution whatsoever upon the legitime of compulsory heirs.
- impossible conditions and those contrary to law or good customs are presumed
to have been imposed erroneously or through oversight, thus, are considered as
not imposed.
- an absolute condition not to contract a subsequent marriage is generally void,
unless imposed upon a widow / widower by the deceased spouse / by the latter’s
ascendants / descendants. Even so, however, the legitime of the surviving spouse
cannot be impaired.
- any disposition made upon the condition that the heir shall make some
provisions in his will in favor of the T / any other person shall be void (disposicion
captatoria).
- conditions imposed by the T upon the heirs shall be governed by the rules
established for conditional obligations in all matters not provided for by the law
on succession.

5. LEGITIME – that part of the decedent’s property which he cannot dispose of

because the law has reserved it for certain heirs who are therefore, called
compulsory heirs.
 Kinds of compulsory heirs:
i. Primary – those who exclude the secondary heirs and are never
excluded by other compulsory heirs / by each other (ex. legitimate
children and descendants)
ii. Secondary – those who are entitled to the legitime only in the
absence of the primary compulsory heirs (ex. legitimate parents and
ascendants)
iii. Concurring – those who succeed together with the primary and/or
secondary compulsory heirs (ex. surviving spouse, illegitimate
children)

 Rules on legitime:
i. direct descending line
- rule of preference bet. lines (direct line – 1 st preference are the
children)
- rule of proximity (the nearer exclude the farther)
- rule of representation ad infinitum in case of predecease, incapacity
or disinheritance (representation is continuous in the direct line)
- if all the LC repudiate their legitime, the next generation of
legitimate descendants succeed in their own right
ii. direct ascending line
- rule of division by lines
- rule of equal division (both sides shall inherit in equal shares)

 Steps in determining the legitime of compulsory heirs

- determination of the gross value of the estate at the time of the
death of the T;
- determination of all debts and charges which are chargeable against
the estate;
 - determination of the net value of the estate by deducting all the
debts and charges from the gross value of the estate;
- collation or addition of the value of all donations inter vivos to the
net value of the estate;
- determination of the amount of the legitime from the total thus
found;
- Imputation of the value of all donations inter vivos made to
compulsory heirs against their legitime and of the value of all
donations inter vivos made to strangers against the disposable free
portion and restoration to the hereditary estate if the donation is
inofficious; and
- distribution of the residue of the estate in accordance with the will
of the T.

 Reserva Troncal – the reservation by virtue of which an ascendant

who inherits from his descendant any property which the latter may
have acquired by gratuitous title from another ascendant / a
brother / sister is obliged to reserve such property for the benefit of
relatives who are within the 3rd degree and who belong to the line
from which such property came.
 Requisites of reserva troncal:
- the property should have been acquired by operation of law by an
ascendant (rervista) from his descendant (propositus) upon the death
of the latter.
- the property should have been previously acquired by gratuitous
title by the descendant (propositus) from another ascendant / from a
brother / sister (originator).
- the descendant (propositus) should have died without any
legitimate issue in the direct descending line who could inherit from
him.
 Personal Elements:
- Originator: ascendant / brother / sister from whom the propositus
had acquired the property by gratuitous title (ex. donation, remission,
testate / intestate succession).
- Propositus: descendant who died and from whose death the
reservista in turn had acquired the property by operation of law (ex.
by way of legitime / intestate succession).
- Reservista: ascendant, not belonging to the line from which the
property came that is the only compulsory heir and is obliged to
reserve the property.
- Reservatarios: relatives of the propositus within the 3 rd degree and
who belong to the line from which the property came and for whose
benefit the reservation is constituted.
 Obligations of Reservista:
 - to make an inventory of all reservable property;
- to appraise value of all reservable movable property;
- to annotate in Registry of Property the reservable character of all
reservable immovable property;
- to secure by mortgage (a) restitution of movables not alienated, (b)
payment of damages caused by his fault or negligence, (c) return of
price received for movables alienated and (d) payment of value of
immovable alienated.
 Extinguishment of Reserva Troncal:
- death of reservatarios;
- loss of the reservable property for causes not due to the fault or
negligence of the reservista;
- waiver or renunciation by the reservatarios;
- prescription of the right of the reservatarios, when the reservista
holds the property adversely against them in the concept of an
absolute owner;
- registration by the reservista of the property as free property
(without the reservation) under the Land Registration Act.

6. DISINHERITANCE – a testamentary disposition by which a person is deprived

of, or excluded from, the inheritance to which he has a right.
 Requisites:
i. Effected only through a valid will;
ii. for a cause expressly stated by law;
iii. cause must be stated in the will itself;
iv. cause must be certain and true;
v. unconditional;
vi. total; and
vii. the heir disinherited must be designated in such a manner that
there can be no doubt as to his identity.
 Effects:
- deprivation of the compulsory heir who is disinherited of any
participation in the inheritance including the legitime.
- the children/descendants of the person disinherited shall take
his/her place and shall preserve the rights of compulsory heirs with
respect to the legitime.
- the disinherited parent shall not have the usufruct or administration
of the property which constitutes the legitime.
 Common causes:
- when the heir has been found guilty of an attempt against the life of
the T, his/her descendants/ascendants, and spouse in case of children
and parents;
 - when the heir has accused the T of a crime for which the law
prescribes imprisonment for 6 years/more, if the accusation has been
found groundless;
- when the heir by fraud, violence, intimidation, or undue influence
causes the T to make a will / to change 1 already made;
- refusal without justifiable cause to support the T who disinherits
such heir.
 Peculiar causes:
o Children/Descendants
- convicted of adultery/concubinage with the spouse of the T;
- maltreatment of the T by word/deed;
- leads a dishonorable/disgraceful life;
- conviction of a crime which carries with it a penalty of civil
interdiction.
o Parents/Ascendants
- abandoned their children / induced their daughters to live a
corrupt / immoral life, / attempted against their virtue;
- convicted of adultery / concubinage with the spouse of the T;
- loss of parental authority;
- attempt by 1 of the parents against the life of the other, unless
there has been reconciliation between them.
o Spouse
- given cause for legal separation
- given grounds for the loss of parental authority
 Revocation:
- reconciliation (resumption of genuine cordial relationship bet. the T
and the disinherited heir)
- subsequent institution of the disinherited heir
- nullity of the will which contains the disinheritance

7. LEGACIES (personal property) AND DEVISES (real property) – all things and
rights within the commerce of man may be bequeath or devise and a T may
charge with legacies or devisees not only his compulsory heirs, but also the
legatees or devisees themselves.

 Belonging to the T at the time of the execution of the will until his
death = effective
 (same above) but alienated in favor of a 3rd person = revoked
 … but alienated in favor of the legatee/devisee gratuitously = no
revocation (there is a clear intention to comply with L/D)
 … but alienated in favor of the legatee/devisee onerously = L/D can
demand reimbursement from the heir/estate
  Not belonging to the T at the time the will is executed but he has
ordered that the thing be acquired in order that it be given to the L/D
= effective
 … and the T erroneously believed that the thing pertained to him =
void
 … but afterwards becomes his by whatever title = effective
 Already belonged to the L/D at the time of the execution of the will
even though another person may have interest therein = ineffective
 … it may have been subsequently alienated by him = ineffective
 T had knowledge that the thing bequeathed belonged to a 3 rd person
and the L/D acquired the property gratuitously after the execution of
the will = L/D can claim nothing by virtue of the legacy/devise
 … by onerous title = L/D can demand reimbursement from the
heir/estate

 Order of satisfaction of L/D (if numerous):

1. Remuneratory L/D – the T is rewarding past services to the L/D.
2. Preferential L/D – the T himself must state in his will that this
particular L/D is preferred.
3. L for support
4. L for education
5. L/D of specific real property
6. All other pro rata

C. LEGAL AND INTESTATE SUCCESSION – transmission of inheritance by operation

of law.
1. GENERAL PROVISIONS; RELATIONSHIP AND RIGHT OF REPRESENTATION
 Incapacity to Succeed
o Based on undue influence or interest
- priest who heard the confession of the T during his last illness, or
the minister of the gospel who extended spiritual aid to him
during the same period;
- individuals, associations and corporations not permitted by law
to inherit;
- 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 T 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;
- relatives of such priest or minister of the gospel within the 4 th
degree, the church, order, chapter, community, organization or
institution to which such priest or minister may belong;
 - attesting witness to the execution of a will, the spouse, parents
or children, or any 1 claiming under such witness, spouse, parents
or children; and
- physician, surgeon, nurse, health officer or druggist who took
care of the T during his last illness.
o Based on Morality or Public Policy
- those made in favor of a person with whom the T was guilty of
adultery / concubinage at the time of the making of the will.
- those made in consideration of a crime of which both the T and
the beneficiary have been found guilty.
- those made in favor of a public officer or his spouse,
descendants and ascendants, by reason of his public office.
o Based on Acts of Unworthiness
- parents who have abandoned their children or induced their
daughters to lead a corrupt or immoral life, or attempted against
their virtue;
- any person who has been convicted of an attempt against the
life of the T, his/her spouse, descendants or ascendants;
- any person who has accused the T of a crime for which the law
prescribes imprisonment for 6 years or more, if the accusation has
been found groundless;
- any person convicted of adultery / concubinage with the spouse
of the T;
- any heir of full age who, having knowledge of the violent death
of the T, should fail to report it to an officer of the law within a
month, unless the authorities have already taken actoon; this
prohibition shall not apply to cases wherein, according to law,
there is no obligation to make an accusation;
- any person who by fraud, violence, intimidation, or undue
influence should cause the T to make a will or to change one
already made;
- any person who falsifies or forges a supposed will of the
decedent; and
- 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.

 Rules in Intestate Succession:

- Rule of proximity: in every inheritance the relative nearest in degree
shall exclude the more distant ones saving the right of representation
when it properly takes place. (Ex. when there are children, the
grandchildren cannot inherit)
 - Rule of Preference Between Lines: those who are in the direct
descending are preferred over those in the direct ascending line and
the collateral line.
- Rule of Equal Division: the relatives in the same degree shall inherit
in equal shares.
Xpn: - division in cases of representation
- division between full/half blood brothers and sisters
- division between the paternal and maternal line
- division between the legitimate and illegitimate children
- Right of Representation: right created by fiction of law by virtue of
which the representative is raised to the place and degree of the
person represented and acquires the rights which the latter would
have received if he were living or could inherit.

2. ORDER OF INTESTATE SUCCESSION

D. PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSION

1. RIGHT OF ACCRETION – a right by virtue of which, when 2/more persons are

called to the same inheritance, devise or legacy, the part assigned to 1 who
renounce or cannot receive his share, or who died before T, is added or
incorporated to that of his co-heirs, co-devisees, or co-legatees.

2. CAPACITY TO SUCCEED BY WILL OR BY INTESTACY

3. ACCEPTANCE AND REPUDIATION OF INHERITANCE
4. PARTITION AND DISTRIBUTION OF THE ESTATE