Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 82

(2) The will must clearly describe and identify the same,
CODICILS AND
Subsection 5
INCORPORATION BY Arts. 825-827
REFERENCE
ARTICLE 825
A codicil is a supplement or addition to a will, made after the
execution of a will and annexed to be taken as a part thereof, by
which any disposition made in the original will is explained,
added to, or altered.
Codicil is derived from the Latin word “codex” and literally means as
little code or a little will – which may be larger or longer than a will.
“Annexed to be taken as a part thereof” – meaning that a codicil cannot
exist on its own. The original will can exist by itself but the codicil
cannot. This means that the validity of the codicil depends upon the
validity of the will.
If the provisions of the will and codicil are inconsistent, the codicil
should prevail because the purpose of a codicil is to amend, alter, or
add to a previously executed will. The later codicil is later expression of
the testator’s wishes.
Time When Codicil is Made
A codicil, since it refers to a will, cannot be made before a will, it is
always made after. Even if the codicil may be later on revoked by
another will or codicil.
stating among other things the number of pages
thereof;
(3) It must be identified by clear and satisfactory proof as
the document or paper referred to therein; and
(4) It must be signed by the testator and the witnesses on
each and every page, except in case of voluminous
books of account or inventories. (n)
Incorporation by Reference
GR: No document can be probated unless said document complies
with the formalities of wills.
XPN: Incorporation by Reference. – Even if the document which is
incorporated to the will and therefore is part of the document to be
probated, this document need not have to be in the form of the will
unlike a codicil which is again annexed to the will hence must comply
with forms of the will and also probated.
Rationale: It is to provide for those cases when a testator wishes to
incorporate to his will only be reference (without copying the whole
thing) certain documents or papers, especially inventories and books
of accounts. Thereby, the testator is able to save time and energy.
Said documents or inventories, when referred to in a notarial will, do
not need any attestation clause, because the attestation clause of the
will itself is sufficient (Unson v. Abella, 43 Phil. 494).
Requisites for Valid Incorporation by Reference

CODICIL
A codicil is executed after the
will and is considered as part of
the will.
The codicil explains, adds to,
supplements, and alters the
provisions in the original will.
The codicil may revoke only a
part of the original will.
Because a codicil is taken as a
part of the original will, then
the original will and codicil are
taken as one.
NEW WILL
This refers to another will which
exists independently of the
original will and without
reference to the original will.
Has no regard to the previous
will, it does not explain, or add
to, or supplement the original
will.
When you execute a new will,
the entire previous will is
revoked as a general rule.
When you execute a new will,
they are separate, the one
revoking the other.
1. The document or paper referred to in the will must be in
existence at the time of the execution of the will;
The usual purpose of an incorporation by reference is for convenience
it is to do away with the re-execution of a document which is already in
existence.
For example, if T left several properties and he already prepared an
inventory of such making a 200-page inventory of his properties, and
T would now like to execute a will, he does not have to rewrite in his
will those properties which already contained in the inventory. He can
incorporate in his will by reference his inventory. But that inventory has
to be in existence at the time of execution.
2. The will must clearly describe and identify the same, among
other things, the number of pages thereof;

ARTICLE 826 The description and identification of the attached document or paper
In order that a codicil may be effective, it shall be executed as in being referred to as well as the number of pages. Describe the
the case of a will. inventory and state it has 200 pages.

Formalities of Codicils 3. It must be identified by clear and satisfactory proof as the

As in the case of wills, there can be:
1. Notarial or ordinary codicils; or
2. Holographic codicils
A notarial will may be revoked by either a notarial or holographic codicil;
similarly, a holographic will may be revoked by a holographic or notarial
codicil. If a codicil is not executed with the formalities of a will, said
codicil is void. A valid will can never be revoked by an invalid codicil.
ARTICLE 827
If a will, executed as required by this Code, incorporates into
itself by reference any document or paper, such document or
paper shall not be considered a part of the will unless the
following requisites are present:
(1) The document or paper referred to in the will must be
in existence at the time of the execution of the will;
document or paper referred to therein;
This refers to identification. This can be done during the probate
proceeding even through extrinsic evidence can be presented to prove
that this document that is being referred to in the will as the one to be
incorporated.
4. It must be signed by the testator and the witnesses on each
and every page, except in case of voluminous books of
account and inventories.
It must be signed by the testator and the witnesses in each and every
page – which is also for purpose of identification except in cases of
voluminous books of account or inventories. Note the exception is as
to the signing of every page but not the signing is dispensed – there
must still be signatures, sufficient pages must be signed but not
necessarily each and every page.

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN d
 Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 83
Requirement to be Stated in the Face of the Will
1. The fact that there is a reference to a document or paper.
2. The clear description and identification of the document.
3. The number of pages.
Requirement to Appear on the Face of Document Incorporated
1. The signature of the testator;
2. The signature of the witnesses.
Requirements that May be Proved by Extrinsic Evidence
1. That the document is in existence at the time of the
execution of the will;
2. That the document is the one being referred to in the will.
Incorporation Can generally be Done Only in Notarial Wills
General Rule: Only notarial wills shall have incorporation by reference
1. These documents have to be signed by the testator and by
the witnesses, there are no witnesses in holographic wills.
2. In notarial wills, the contents can either be in handwriting,
typewritten or both. Thus, the documents attached may be
either typewritten or handwritten by the testator.
Exception: It may be a holographic will:
1. When the holographic will has at least three witnesses, there
can be incorporation by reference because by then, the
subscribing witnesses in the holographic will, although a
surplusage can sign the document to be incorporated.
2. Even if there are no witnesses but the document to be
incorporated are entirely written, signed and dated in the
hand of the testator. In this case, there is a pure holographic
will. There can be a valid incorporation by reference.
REVOCATION OF WILLS
Subsection 6
AND TESTAMENTARY Arts. 828-834
DISPOSITIONS
ARTICLE 828
A will may be revoked by the testator at any time before his death.
Any waiver or restriction of this right is void.
Wills are Essentially Revocable
As long as the testator is alive he can always change his mind and
revoke his will even if the will has already been probated because the
testator can probate the will during his lifetime, even if the heirs,
legatees, devisees have already accepted the testator can revoke will.
Revocation
Is the act of the mind terminating the potential capacity of a will to
operate at the death of the testator manifested by some outward acts
and signs symbolic thereof. In revocation, it requires the concurrence
of the intent; the act of the mind or animus revocandi and some actual
and visible act or sigs or some overt act. Thus there must be
1. Intent to revoke plus
2. Overt Act
General Rule: The testator can always revoke his will during his lifetime.
Exception: Testator is not sound mind at time of revocation.
In Macam v. Gatmaitan 60 Phil. 358, a will was presented for probate
and no objection was presented. After the judgment had become final
and executory, a codicil made after the executed was presented for
probate. May the codicil be still probated?
Yes. Since codicil may have revoked expressly or impliedly
the will, and it is well known that a will is essentially revocable. It is not
indeed essential for both the will and the codicil to have been
presented for probate at the same time.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
ARTICLE 829
A revocation done outside the Philippines, by a person who does
not have his domicile in this country, is valid when it is done
according to the law of the place where the will was made, or
according to the law of the place in which the testator had his
domicile at the time; and if the revocation takes place in this
country, when it is in accordance with the provisions of this Code.
Conflicts Rules for Revocation of Wills
(a) If revocation is in the Philippines, follow Philippine law regardless of
the residence or domicile or citizenship of testator.
(b) If revocation is outside the Philippines
(1) If revocation is made by a resident of the Philippines
(i) Law of the place of revocation
(ii) Law of the place of domicile (Philippines)
(2) If revocation is made by a non-resident of one who is not
domiciled in the Philippines
(i) Law of the place were the will was made
(ii) Law of the place of domicile of testator
ARTICLE 830
No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as
provided in case of wills; or
(3) By burning, tearing, cancelling, or obliterating the will
with the intention of revoking it, by the testator
himself, or by some other person in his presence, and
by his express direction. If burned, torn, cancelled, or
obliterated by some other person, without the express
direction of the testator, the will may still be
established, and the estate distributed in accordance
therewith, if its contents, and due execution, and the
fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of
Court. (n).
Modes of Revocation
1. By implication of law
2. By some will, codicil, or other writing executed as provided
in case of will (by subsequent instrument)
3. By overt acts
1. Revocation by Implication of Law
This is the kind of revocation produced by operation of law, when
certain acts or events take place a will has been made rendering void
or useless either the whole will or certain testamentary dispositions.
Examples of Revocation by Operation of Law
(1) Article 957 – when after testator has made a will, he sells,
donate the legacy or devise. The act of selling or alienation is
considered as an act of revocation.
o In case there was no intention to revoke, there
must be showing thereof otherwise presumption
of revocation prevails. (e.g. Pacto de retro sale)
(2) Article 106, Family Code – provisions in a will in favor of a
spouse who has given cause for legal separation shall then
be revoked by operation of law. This means that the guilty
spouse is disqualified to inherit from the innocent spouses.
(3) Article 1032 – when an heir, legatee, or devisee commits an
act of unworthiness
(4) Article 936 – when a credit had been given as a legacy is
judicially demanded by the testator. This is in case legacy by
remission of debt, but after execution testator brings a
judicial action for collection – then deemed revoked.
(5) Article 854 – when one, some or all of the compulsory heirs
have been preterited or omitted, institution of heir is void. If
one is not a legal heir, he or she cannot receive inheritance.
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2. Revocation by Subsequent Document or Instrument
There are two kinds of revocation under this instance:
(1) Express Revocation – it is expressly stated in the second will
or codicil that it revokes the previous one or all other wills
executed prior to the execution – also known as revocatory
clause which is a express revocation.
(2) Implied Revocation – if there is no express statement but
the provisions of the second will and the first are totally and
completely inconsistent and irreconcilable.
Requisites for Revocation by Subsequent Instrument
1. Testamentary capacity at the time of revocation
2. Subsequent instrument must be valid
3. Subsequent instrument must contain a revocatory clause (if
express) or be incompatible (if implied) with the former will
showing intent to revoke
4. Subsequent will must be admitted to probate
Validity requirement from Admittance to Probate requirement
If T executed a notarial will in 2000 giving A all his properties and then
in 2005 a new will – a holographic will – giving to B all his properties.
But there was a fire that burned the house and no copy of holographic
will was available and then the testator died.
 Can a witness testify to the existence of the holographic will?
In Gam v. Yap, a copy of the holographic will must be presented in
court, even a photocopy (in case of the loss or destruction of original)
because the court has to be satisfied of that the holographic will has
been written, dated and signed in the hands of the testator. If there is
no such copy there can be no comparison.
Therefore, there is no revocation by a subsequent document because
even if there holographic will would have been valid (second), it cannot
revoke the earlier notarial will because the holographic will was not
admitted to probate (fourth requisite)
3. Revocation by Overt Act
Requisites for Application of Revocation by an Overt Act
1. Testator has testamentary capacity time of performing act;
2. The act must be any of the overt act mentioned in Article 830:
a. Burning – it is not required that the whole
instrument is completely burned. Even if only a
portion of the document is burden, it is considered
as an act of revocation. (But not accidentally)
b. Tearing – even if by hands or by scissors, a slight
tear is sufficient to be considered as an act of
revocation; revokes if only signatures was torn
c. Cancelling – when you place a mark or a line
across the writings but not on the spaces.
d. Obliterating – or the blotting out or by eraser
3. The act must be a completed act or at least a completion of
the subjective phase of the over act
GR: Even if tearing is not complete or the burning is not
complete then there is an act of revocation.
XPN: When the testator starts burning his will but realized
that he really does not want to revoke his will and desists
from burning – thus there is no act of revocation due to the
voluntary desistance by the testator.
4. There must be intent to revoke or animus revocandi
5. The revocation must be done by the testator himself or by
some other persons in his presence and under his express
direction.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
“Crumpling” in Roxas v. Roxas (48 OG 2177)
While in US the mere act of crumpling of the will does not constitute a
revocation, but in PH case of Roxas, the court impliedly allowed
crumpling as one of the overt acts provided there is animus revocandi.
Scenario: A wanted to revoke his will, so he threw it into a stove so that
it would be burned later on when a fi re would be lighted in the stove.
However, the will was later removed by another person from the stove
BEFORE the stove was lighted.
Held: There was NO revocation here, for while there was intent to
revoke, there never was the overt act of burning. (75 Am. Jur., Wills, Sec.
501). However, the person who prevented the revocation, if he be an
heir or a legatee or devisee, will still NOT inherit, not because of
revocation by means of an overt act (for indeed there was NO overt act)
but because of revocation by implication of law, said person being
incapacitated to inherit by reason of UNWORTHINESS. (See Art. 1032).
Burden of Proof
Presumption: A duly executed will has not been revoked. Burden of
proof lies who opposes the probate of the will which was alleged to
have been revoked.
TESTATE ESTATE OF ADRIANA MALOTO v. COURT OF APPEALS
GR 76464, February 29, 1988
Facts: Adriana Maloto died leaving behind a last will and testament, the
heirs however commenced intestate proceedings and while case was
pending an extrajudicial settlement of estate was made and was approved
by the court in 1964.
However, few years later in 1967, Atty. Palma discovered a document
named Katapusan ng Pagbubulat-an (Testamento) dated 1940 purporting
to be the LWT of Adriana which was found by Atty. Palma upon checking
the cabinet drawer of his former associate late Atty. Hervas who was the
decedent’s counsel. It was submitted to CFI Iloilo.
The will while it contained the same heirs but with different proportions as
compared to the four equal distribution in the extrajudicial settlement, it
also provided for devisees and legacies to other parties. This prompted the
parties to file for MR and for annulment of intestate proceedings and the
allowance of the will.
However, there was an allegation in this case that such will is not the will of
Adriana because Adriana’s househelp , Guadalupe was instructed by the
testatrix to burn documents or papers alleging to be the will. CA ruled that
there was animus revocandi in the destruction.
Issue: Was there revocation? – No.
(1) Must be Coupled with Animus Revocandi. – It is clear that the physical
act of destruction of a will, like burning in this case, does not itself mean an
effective revocation unless it is coupled with animus revocandi on the part
of the testator. It is not imperative that the physical destruction is made by
the testator himself. It may be performed by another but under the express
direction and in the presence of testator. The document destroyed must be
the will itself.
(2) Paucity of evidence that papers burned was the will or that it was
made in her presence and under her express direction – It was not proved
however that the papers burned has been established to be a will at all. It
was not even proven that the burning was under the express direction of
Adriana or that it was made in her presence. The witnesses stated that they
were the only ones present in the stove (kitchen) were will was alleged to
have been burned. The testimonies deemed inconclusive.
Animus revocandi is only one of the necessary elements for the effective
revocation of a last will and testament. The intention to revoke must be
accompanied by the overt physical act of burning, tearing, obliterating or
canceling the will carried out by the testator or by another person in his
presence and under his express direction.
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ARTICLE 831
Subsequent wills which do not revoke the previous ones in an
express manner, annul only such dispositions in the prior wills as
are inconsistent with or contrary to those contained in the later
wills.
Implied Revocation by Subsequent Instrument
There is implied revocation when the testator, after having executed
the will executed another will or codicil, not containing a revocatory
clause but its contents are inconsistent with the former will, then there
is an implied revocation.
Effect: It annuls only such dispositions in prior wills as are inconsistent
with or contrary to those contained in the later wills.
ESTATE OF MAMUYAC, GAGO v. MAMUYAC
GR 26317, 45 Phil. 902, January 29, 1927
Facts: Miguel Mamuyac (died 1922) executed a last will and testament in
1918. Gago presented such will for probate which was opposed because
the deceased executed another will in 1919. Thus, Gago then presented the
1919 will but was again opposed alleging that it was a carbon copy, which
the original thereof was cancelled during the lifetime of deceased. RTC
found that he executed another will in 1920.
Issue: Was the 1919 will cancelled? – Yes.
Held: Presumption of revocation of absence of original will. - The law does
not require any evidence of the revocation or cancellation of a will to be
preserved. It therefore becomes difficult at times to prove the revocation or
cancellation of wills. The fact that, such cancellation or revocation has
taken place must either remain unproved or be inferred from evidence
showing that after due search the original will cannot be found.
Where a will which cannot be found is shown to have been in the
possession of the testator, when last seen, the presumption is, in the
absence of other competent evidence, that the same was cancelled or
destroyed. The same presumption arises where it is shown that the testator
had ready access to the will and it cannot be found after his death.
In view of the fact that the original will of 1919 could not be found after
the death of the testator Miguel Mamuyac and in view of the positive
proof that the same had been cancelled, we are forced to the
conclusion that the conclusions of the lower court are in accordance
with the weight of the evidence. In a proceeding to probate a will the
burden of proof is upon the proponent clearly to establish not only its
execution but its existence.
Copies of wills should be admitted by the courts with great caution. When
it is proven, however, by proper testimony that a will was executed in
duplicate and each copy was executed with all the formalities and
requirements of the law, then the duplicate may be admitted in evidence
when it is made to appear that the original has been lost and was not
cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G. R. No.
26063.) After a careful examination of the entire record, we are fully
persuaded that the will presented for probate had been cancelled by the
testator in 1920.
ARTICLE 832
A revocation made in a subsequent will shall take effect, even if
the new will should become inoperative by reason of the
incapacity of the heirs, devisees or legatees designated therein,
or by their renunciation.
Doctrine of Absolute Revocation
There can be a valid but ineffective will in case the heirs, devisees or
legatees do not have capacity to succeed or had renounced. However,
a valid and ineffective will can still revoke the previous will.
 The will must be valid and not invalid or void
 The will is only ineffective
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
NAVAL v. NAVAL
GR L-11823, February 11, 1918
Facts: Simeona Naval executed a will in February 13, 1915 but was however
disallowed on the ground that testatrix did not sign it in the presence of
three witnesses and the two witnesses did not sign the presence of each
other.
Later, the nieces and legatees of Simeona file din the same court for the
allowance of another will executed on October 31, 1914 and this was
opposed arguing that the there was a subsequent will – 1915 will which
revokes the 1914 will.
Issue: Was the 1914 will revoked by the 1915 will? – No.
Held: While a former will is by operation of law revoked by a VALID
subsequent will, making it indispensable that for the 1915 will to revoke the
1914 will it must first be valid. However, it appears from the record that the
1915 will was not perfect or valid and executed in accordance with the law,
then it did not operate to revoke the 1914 will.
NOTE: Even if the 1915 will would have a revocatory clause, such clause is
still void because the will is void.
Doctrine of Dependent Relative Revocation
This is where the act or destruction is connected to the making the will
so as squarely to raise the inference that the testator meant the
revocation of the old would depend on the efficacy of the new
disposition and if for any reason the new will intended to be made as a
substitute becomes inoperative, the revocations fails and the original
will remain in full force and effect.
 Ex.: When the first will was torn after the execution of the
second will – doctrine of dependent relative revocation.
 Ex.: When first will has already been torn long before the
execution of the second will, what applies is absolute
revocation under Article 830.
MOLO v. MOLO
GR L-2538, September 21, 1951
Facts: Mariano Molo died on 1941 and he left two wills, the 1918 will and
the 1939 will. The 1939 will contains a clause which expressly revokes the
1918 will. In 1941, Juana (wife) filed a petition for probate of the 1939 will
but was opposed, this was set aside by the court for failure to execute in
accordance with law.
In 1944, Juana filed another petition for probate of the 1918 will and this
was opposed because (among other contentions) the will has subsequently
been revoked by the 1939 will. However before this petition was heard the
battle for liberation came and the records case were destroyed (burned).
It was contended here that the testator after executing the 1939 will with
full knowledge of its revocatory clause, testator deliberately destroyed the
original of the 1918 will arguing that the 1918 will submitted was only a
duplicate of the original.
Issue: Is the revocatory clause of the disallowed 1939 will valid and
effective as to nullify the 1918 will? – No.
Held: (1) No evidence on deliberate destruction. – There is no evidence
which may directly indicate that the testator deliberately destroyed original
of 1918 will because of his knowledge of the revocatory clause of the 1939
will. The only evidence was that the original was in possession of testator
until execution of second will and the original was not found.
(2) Doctrine of dependent relative revocation. – Granting for the sake of
argument that the earlier will was voluntarily destroyed by the testator after
the execution of the second will, which revoked the first, could there be any
doubt, under this contention, that said earlier will was destroyed by the
testator in the honest belief that it was no longer necessary due to the
express revocation in the 1939 will?
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Can we say that the destruction of the earlier will was but the necessary
consequence of the testator’s belief that the revocatory clause contained in REPUBLICATION AND Subsection 7
the subsequent will was valid and the latter would he given effect? REVIVAL OF WILLS Arts. 835-837

If such is the case, then it is the court’s opinion that earlier will can still be
admitted to probate under the principle of dependent relative revocation: REPUBLICATION REVIVAL
It is the re-establishment by the It is the re-establishment to
This doctrine is known as that of dependent relative revocation, testator of the previously validity by operation of law of a
and is usually applied where the testator cancels or destroys a will or revoked will or one invalid for previously revoked will.
executes an instrument intended to revoke a will with a present intention want of proper execution as to
to make a new testamentary disposition as a substitute for the old, and the form or for other reasons so as
new disposition is not made or, if made, fails of effect for same reason. to give validity of said will.
It involves the act of the It involves the operation of law.
The doctrine is not limited to the existence of some other document, testator.
however, and has been applied where a will was destroyed as a There is a will previously A will previously revoked
consequence of a mistake of law. revoked or a will invalid as to
form or a will invalid for any
The rule is established that where the act of destruction is
other cause
connected with the making of another will so as fairly to raise the inference
that the testator meant the revocation of the old to depend upon the
efficacy of a new disposition intended to be substituted, the revocation will ARTICLE 835
be conditional and dependent upon the efficacy of the new disposition; and The testator cannot republish, without reproducing in a
if, for any reason, the new will intended to be made as a substitute is subsequent will, the dispositions contained in a previous one
inoperative, the revocation fails and the original will remains in full force. which is void as to its form.

This is the doctrine of dependent relative revocation. The failure
of a new testamentary disposition upon whose validity the revocation
depends, is equivalent to the non-fulfillment of a suspensive conditions,
and hence prevents the revocation of the original will. But a mere intent to
make at some time a will in the place of that destroyed will not render the
destruction conditional. It must appear that the revocation is dependent
upon the valid execution of a new will.
Therefore, in the case at bar, even if arguing that the testator deliberately
destroyed the 1918 will in view of the 1939 will, it will not have the effect of
defeat the 1918 will because the 1939 will was not valid was set aside.
ARTICLE 833
A revocation of a will based on a false cause or an illegal cause is
null and void.
Revocation Based on False or Illegal Cause
This is one of the aspects of the dependent relative revocation, or under
this article, a revocation made under a mistake. Thus if the testator
makes a will making A his heir and learned that A died, so testator made
another will instituting B as an heir but it turns out A was still alive, it is
deemed that A inherits, because the revocation was based on a false
cause. (See: Molo v. Molo).
When the revocation is made by a subsequent instrument, the false
cause must be stated in the face of the will.
Scenario: If the testator states in his second will: “I am not sure whether
A is dead or still alive. However, I hereby revoke the legacy to him which
I made in my first will.” Is there a revocation?
Yes. The testator cannot be said to be proceeding upon an
error. Article 833 renders void those which are of false cause or an
illegal cause.
ARTICLE 834
The recognition of an illegitimate child does not lose its legal
effect, even though the will wherein it was made should be
revoked.
Effect of Revocation of Will with Recognition of Illegitimate Child
While a will is essentially revocable, recognition is irrevocable unless
there be vitiated consent and moreover:
(1) Recognition is not a testamentary disposition
(2) Recognition does not wait for the testator’s death to become
effective - takes effect immediately
ARTICLE 836
The execution of a codicil referring to a previous will has the
effect of republishing the will as modified by the codicil.
Republication is the re-establishment of a will that is:
 Previously revoked
 Invalid as to form, or
 Invalid for any other cause
Types of Republication
1. Express republication or republication by re-execution;
- Is a republication in a subsequent will of a previous one
which is void as to form (835)
- Those requirements under Forms of Wills are wanting,
void as to its form.
2. Implied republication or republication by reference
- Is the execution of a codicil referring to a previously
revoked will or will valid as to form but void because of
extrinsic defects such as lack of testamentary capacity ,
such as sound mind (836)
- Void but not as to form like sound mind
Republication by Reference or Implied Republication (836)
This is when the previous will is void but not because of the form but
because of extrinsic defects such as testamentary capacity it can be
republished by republic ation by reference.
If T made a will in 2000, and in 2005 T executed a codicil stating that the
dispositions of 2000 are still valid and are of full force and effect – the
codicil has the effect of republishing the old will.
Effect on After-Acquired Properties
Under 793 as a general rule, only those properties existing at the time
of the execution of the will shall be included in the legacy or devise.
Any other property acquired by testator after execution – not included.
Exceptions:
1. When expressly provided for by the testator (793)
2. When a will is republished by a codicil (834)
If in 2000 X has 10 hectares of parcel of land and in 2004, by accretion
the land became 11 hectares. And then in 2007, T executed a codicil
republishing the will and he mentioned n the codicil that he added
some other heirs and that the provisions of the testament of the 2000
will are in full force and effect – he can now claim that 11 hectares.

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN d
 Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 87
ARTICLE 837
If after making a will, the testator makes a second will expressly
revoking the first, the revocation of the second will does not
revive the first will, which can be revived only by another will or
codicil.
Revival and the Principle of Instanter
[1] Principle of Instanter; Revival by Another Will or Codicil
If first will is expressly revoked by the second will, and the second will
is revoked (law does not state how), but there is no third will.
 The revocation of second will does not revive the first will, it
can only be revived by:
1. Another will
2. Codicil
 This is the Principle of Instanter because there is an express
revocatory clause.
[2] Revival by Operation of Law
If the first will (instituted A as sole heir) but a second will was made
which instituted B instead, there is implied revocation. But if the
second will is revoked, the first will is revived, this is revival by
operation of law, thus the first will is revived.
Revival in Cases of Preterition under Article 854
If the compulsory heir in the direct line is omitted in the will resulting
to a preterition, the institution of heirs shall be annulled,
 But, if the compulsory heir who has been preterited dies
ahead of the testator or predecease the testator, then the
effect of preterition is erased, the will is now revived.
ALLOWANCE AND Subsection 8
DISALLOWANCE OF WILLS Arts. 825-827
ARTICLE 838
No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court
having jurisdiction for the allowance of his will. In such case, the
pertinent provisions of the Rules of Court for the allowance of
wills after the testator's a death shall govern.
The Supreme Court shall formulate such additional Rules of Court
as may be necessary for the allowance of wills on petition of the
testator.
Subject to the right of appeal, the allowance of the will, either
during the lifetime of the testator or after his death, shall be
conclusive as to its due execution. (n)
Probate of Wills
Probate is a special proceeding to establish the validity of a will. If a
person dies with a will that will is not automatically given effect. The will
has to be probate first. Probate proceedings are intended to determine
the genuineness and due execution of the will.
There is a need to ensure that the will was made in accordance with the
law, that it was made without coercion; he had testamentary capacity.
These are proceedings in rem, as probate proceedings are special
proceedings which seeks to establish a status or a fact. This is a kind of
proceeding where it is binding to the whole world. Once there is now
publication, the court would acquire jurisdiction over the proceedings.
Probate of Wills is Mandatory
It is clear from the Article that “no will shall pass either real or personal
property unless it is proved and allowed.” The testator cannot state in his
will to dispense the need of probate because it is required by law.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
MANINANG v. CA
GR L-57848, June 19, 1982
Public policy requires probate proceeding for unless the will is probated and
notice thereof is given to the whole world, the right of a person to dispose of
his property by will may be rendered nugatory.
Facts: Clemencia Aseneta died at the age of 81 on May 1977 leaving then a
holographic will. Soledad Maninang filed a petition for probate of the will of
decedent with CFI Quezon (Testate Case)
Bernardo Aseneta (adopted son) claims to be the sole heir and instituted
the Intestate Case in CFI Rizal. Bernardo moved to dismiss the testate case
on the ground that the holographic will was null and void due to preterition.
Maninang argued that the probate court’s inquiry is limited to the extrinsic
validity of the will and that Bernardo was effectively disinherited.
Lower court ordered dismissal of the Testate Case, MR was denied and
appointed Bernardo as administrator of the intestate estate.
Issue: Was it proper to dismiss the case? – No.
Held: (1) Probate of will, generally mandatory. - The Court finds that court
a quo acted in excess of jurisdiction when it dismissed the Testate Case.
Generally, the probate of a Will is mandatory. “No will shall pass either real
or personal property unless it is proved and allowed in accordance with the
Rules of Court.” The law then enjoins the probate of the Wills and public
policy requires it because unless the Will is probated and notice thereof is
given to the whole world, the right of a person to dispose of his property by
Will may be rendered nugatory.
(2) Normally, probate of a will does not look into the intrinsic validity. -
The authentication of the will decides no other question than such as touch
upon the capacity of the testator and the compliance with the requisites or
solemnities which the law prescribes for the validity of wills. It does not
determine nor even by implication prejudge the validity or efficiency of the
provisions, these may be impugned as vicious or null even after the will has
been authenticated.
Opposition to the intrinsic validity or legality of the provisions of the will
cannot be entertained in a probate proceeding because its only purpose is
merely to determine if the will has been executed in accordance with the
requirements of the law.
(3) Nuguid v. Nuguid; Balanay v. Martinez rulings are mere exceptions to
the general rule. – The Nuguid and the Balanay cases provide the exception
rather than the rule. The intrinsic validity of the Wills in those case was
passed upon even before probate because of practical considerations so
demanded.
(4) Dismissal of testate case; determination of the issues has not been
thoroughly considered. - By virtue of the dismissal of the Testate Case, the
determination of that controversial issue has not been thoroughly
considered. We gather from the assailed Order of the trial Court that its
conclusion was that respondent Bernardo has been preterited. We are of
opinion, however, that from the face of the Will, that conclusion is not
indubitable.
HEIRS OF ROSENDO LASAM v. VICENTA UMENGAN
GR 168156, December 6, 2006
Facts: Petitioners are the heirs of Rosendo (son of Isabel Cuntapay from the
first marriage) and respondent is Vicenta Umengan (daughter of Abdon
who was the son of Isabela Cuntapay from the second marriage). Isabel
Cuntapay was the owner of an eastern portion of the subject lot.
In 2001, the heirs of Rosendo Lasam filed a case for unlawful detainer
against Vicenta Umengan, who was then occupying the subject lot, heirs
argued that they were the owners of the lot having inherited it from their
father – Rosendo and argued that Umengan was just temporarily allowed
to stay in the property and would vacate upon demand.
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Umengan argued that her father being one of the heirs of Isabel inherited
through intestate succession and that her father bought other shares in the
subject lot.
MTCC ruled in favor of the heirs of Rosendo Lasam and directed the
ejectment of Umengan. MTCC gave credence to the newly discovered last
will and testament purportedly executed by Isabel Cuntapay where she
bequeathed the lot to Rosendo. MTCC discussed that the will was not yet
probated; and found that the subject lot was already bequeathed to Lasam
thus the Umengan had no right to possess as his father had no share on the
subject property. RTC affirmed such ruling.
CA reversed finding formal defects in the will (no attestation, second page
had lacking signatures, not acknowledged).
Petitioners base their claim of right to possession on the theory that their
father Rosendo was the sole owner of the subject lot by virtue of newly
discovered last will and testament and the Umengan was possession by
mere tolerance.
Issue: Was the lower court correct in relying upon the last will and testament
as basis in saying the Lasam had a right over the property? – No.
(1) Unprobated will cannot be the source of any right. – The purported last
will and testament of Isabel Cuntapay could not be properly be relied upon
to establish the right of the heirs to possess the lot because the will has not
yet been probated as provided under Article 838.
In Cañiza v. Court of Appeals, the Court ruled that: "[a] will is essentially
ambulatory; at any time prior to the testator’s death, it may be changed or
revoked; and until admitted to probate, it has no effect whatever and no
right can be claimed thereunder, the law being quite explicit: ‘No will shall
pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court.’
Dr. Tolentino, an eminent authority on civil law, also explained that "[b]efore
any will can have force or validity it must be probated. To probate a will
means to prove before some officer or tribunal, vested by law with authority
for that purpose, that the instrument offered to be proved is the last will and
testament of the deceased person whose testamentary act it is alleged to
be, and that it has been executed, attested and published as required by
law, and that the testator was of sound and disposing mind. It is a
proceeding to establish the validity of the will." Moreover, the presentation
of the will for probate is mandatory and is a matter of public policy.
Following the above truisms, the MTCC and RTC, therefore, erroneously
ruled that petitioners have a better right to possess the subject lot on the
basis of the purported last will and testament of Isabel Cuntapay, which, to
date, has not been probated.
Stated in another manner, Isabel Cuntapay’s last will and testament, which
has not been probated, has no effect whatever and petitioners cannot claim
any right thereunder. Hence, the CA correctly held that, as against
petitioners’ claim, respondent has shown a better right of possession over
the subject lot as evidenced by the deeds of conveyances executed in her
favor by the children of Isabel Cuntapay by her first marriage.
MERCADO v. SANTOS
GR 45629, September 22, 1938
Facts: Atilano Mercado filed a petition for probate of will of his deceased
wife, Ines Basa. The probate met no opposition and upon testimony of one
of the attesting witness, probate court admitted will into probate in 1931.
In 1932, Rosario Basa filed a complaint against Mercado for Falsification or
Forgery of the will (charge was dismissed thrice). Fiscal moved for the
reinvestigation of the case and for the fourth time Mercado was arrested.
Mercado moved to dismiss the charges because the will alleged to have
been forged and had already been probated, and that the order probating
the will is conclusive as to the authenticity and due execution thereof.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
Mercado now contends that the probate of the will of his deceased wife
operates as a bar to his criminal prosecution for the alleged forgery of the
said will.
Issue: May Atilano Mercado be convicted after the will has been duly
probated? – No.
Held: (1) The probate of will conclusive as to its genuineness and due
execution. - The probate of a will by the probate court having jurisdiction
thereof is usually considered as conclusive as to its due execution and
validity, and is also conclusive that the will is genuine and not a forgery.
The probate of a will in this jurisdiction is a proceeding in rem.
The provision of notice by publication as a prerequisite to the allowance of
a will is constructive notice to the whole world, and when probate is
granted, the judgment of the court is binding upon everybody, even
against the State.
Conclusive presumptions are inferences which law makes so peremptory
that it will not allow them to be overturned by any contrary proof however
strong. The will in question having been probated by a competent court,
the law will not admit any proof to overthrow the legal presumption that it
is genuine and not a forgery.
Criminal action will not lie in this jurisdiction against the forger of a will
which had been duly admitted to probate by a court of competent
jurisdiction. After a judgment allowing a will to be probated has become
final and unappealable, the law as an expression of the legislative wisdom
goes no further and the case ends there. [Res Judicata]
NOTE: Last paragraph of Article 838: Subject to the right of appeal, the
allowance of the will, either during the lifetime of the testator or after his death,
shall be conclusive as to its due execution.
Principles as to Probate
1. Probate is mandatory and is a matter of public policy.
2. Probate proceeding is a proceeding in rem.
3. Once final, the decree of the court becomes conclusive as to
the due execution of the will.
4. Estoppel is not applicable in probate proceedings (Alsua-
Betts v. CA).
ALSUA-BETTS v. CORT OF APPEALS
GR L-46430, July 30, 1979
The principle of estoppel is not applicable in probate proceedings.
proceedings, a ruling laid down in the case of Testate Estate of the Late
Procopia Apostol Benedicta Obispo, et al vs. Remedios Obispo penned by
Justice J.B.L. Reyes:
Finally, probate proceedings involve public interest, and the
application therein of the rule of estoppel, when it will block the
ascertainment of the truth as to the circumstances surrounding the
execution of a testament, would seem inimical to public policy. Over and
above the interest of private parties is that of the state to see that
testamentary dispositions be carried out if, and only if, executed
conformably to law.
Estoppel, Inapplicable
Suppose that T left a will, and the heirs despite the existence of the will,
executed an extra-judicial settlement of the estate – but this can only
be allowed if the decedent died intestate. If there was a will, it must be
probated and properties be distributed in accordance with the will.
If A, one of the heirs, received his share under extrajudicial settlement,
if the changes his mind later on and instead sought for the probate of
the will instead, he cannot be estopped because the principle of
estoppel does not apply in probate proceedings.
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5. The right to ask for probate does not prescribe.
In the case of In Re: Estate of Pilapil (72 Phil. 545), the right to ask for
probate does not prescribe. There is nothing in the Rules of Court nor
the New Civil Code that required for a period for filing for the probate
of the will. One can always file anytime for probate.
Annulment of Will, Not Allowed
In the case of Galanosa v. Archangel (83 SCRA 676), an action for the
annulment of will is not allowed. To contest a will, an opposition should
have been filed in the probate proceedings and to pursue this
opposition in the appellate court in case the will is admitted to probate.
Otherwise, the decree of probate becomes conclusive as to the formal
validity and due execution of the will.
When Court Acquires Jurisdiction
Rodriguez v. Borja
1. By filing a petition for probate of will; or
2. By delivering a copy of the will to the court.
Who Can Participate in Probate Proceedings?
Persons Who May Intervene
In order that a person may be allowed to intervene in a probate
proceeding, he must have an interest in the estate or in the will, or in
the property to be affected by it. He must be an interested party or one
who would be benefited by the estate such as an heir or one who has a
claim against the estate like a creditor, and whose interest is material
and direct not merely incidental or contingent.
LEVISTE v. COURT OF APPEALS
GR L-29184, January 30, 1989
Facts: In 1963, Benedicto Leviste, a practicing attorney, entered into a
written agreement with Rosa del Rosario to appear as her counsel in a
petition for probate of holographic will of the late Reselva. It was agreed
that Leviste’s contingent fee would be 35% of the property Rosa may
receive upon probate of the will.
Leviste received a letter from Rosa informing him that his services were
terminated due to “conflicting interest” as Leviste had the moral
obligation t o protect the interest of his brother in law Llanes, whom Del
Rosario intended to eject as lessee in the property involved in the will.
Leviste files a Motion to Intervene to Protect His Rights to Fees for
Professional Services. Where he argues that by virtue of his contract of
services with Del Rosario, he is a creditor of the latter citing Article 1052
(where in case heir repudiates inheritance, prejudiced creditors may file
petition to authorize them to receive in the name of repudiating heir).
Indeed there was a Motion to Withdraw Petition for Probate alleging that
Rosa waived her rights to the devise in her favor, but this was denied by the
trial court. However, the will was disallowed for failure to comply with the
requirement as there were only 2 witnesses among others.
Leviste filed an appeal which was opposed by Rosa, arguing that Leviste
was not a party-in-interest.
Issue: Whether Leviste, an attorney who was engaged in an contingent
fee basis, in order to collect his fees, make an appeal despite refusal of
client to appeal the decision of disallowance of the will? – No.
Held: (1) Leviste is not a creditor and Article 1052 does not apply. – Here,
Leviste is not a creditor of Rosa del Rosario. The payment of his fees is
contingent and dependent upon the successful probate of the holographic
will. Since the petition for probate was dismissed, the contingency did not
occur. Thus, Leviste is not entitled to his fees.
Article 1052 also presupposes that the debtor is the legal heir, and since the
petition for probate of the will was dismissed, she lost her right to inherit
from the decedent, thus Leviste cannot accept anything in her name.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
(2) Leviste had no direct interest in the probate proceeding. – Leviste was
not a party to the probate proceeding in the lower court and he had no
direct interest in the probate of the will. His only interest in the estate is an
indirect interest as former counsel for a prospective heir. One who is only
indirectly interested in a will may not interfere in its probate.
NOTE: Rosa del Rosario was no longer an heir because being a devisee, her
right over the property is only dependent upon the will but the will has to
be probated and here it was denied.
Illustration of Persons Without Direct Interest
1. Adopted or illegitimate child with respect to the estate of
relatives of adopter or parent – considered as a stranger.
2. Former counsel of a prospective heir of a will under
contingent fee contract (Leviste v. CA)
3. Nephew in testamentary succession (Maloles II v. Phillips)
4. Iron Bar Rule under Article 992.
MALOLES II v. PHILLIPS
GR 129505, January 31, 2000
Facts: Dr. Arturo de Santos filed a petition for probate of his will in the RTC
alleging that he has no force heirs and named the sole legatee and devisee
the Arturo de Santos Foundation and named Phillips as executrix. Maloles II
filed a Motion for Intervention claiming that as the only child of Alicia de
Santos (Arturo’s sister), he was the sole full-blooded nephew and nearest
of kin of Dr. De Santos. He also alleged that he was a creditor of the testator.
Issue: Can Maloles intervene? – No.
Held: (1) Direct interest in the estate or in the will. – In order for a person
to be allowed to intervene in a proceeding, he must have an interest in the
estate or in the will or in the property to be affected by it. He must be an
interested party or one who would be benefited by the estate such as an
heir or one who has a acclaim against the estate like a creditor, and whose
interest is material and direct.
(2) Maloles is not an heir nor legatee. – He is not a compulsory heir, legatee
of the decedent in the will. As the only and nearest collateral relative of the
decedent, he can inherit only in case of intestacy. He can only inherit when
the will is annulled. His interest is therefore not direct nor immediate.
NOTE: As there was no compulsory heir, no legitime is prejudice. He has no
personality to participate in probate proceeding. He has no right to be
protected in the first place.
Issue: How about as to the claim of being a creditor? – Belatedly filed.
(3) Belatedly filed and not supported by evidence. – Nor does Maloles have
any right to intervene in the settlement proceedings based on his allegation
that he is a creditor.
BUTIONG v. SURIGAO CONSOLIDATED MINING
GR L-13938, July 31, 1968
Facts: Butiong filed for the probate of a document purporting to have been
executed by Christian Harris as his last will and testament, constituting
Butiong as the sole and universal heir of all the testator’s properties located
in the Philippines, consisting of shares of stock and interest in the Mindanao
Mother Lode Mining Co., Inc., and of shares of stock, interest and one (1%)
per cent royalty in the Surigao Consolidated Mining Co., Inc.
The Surigao Consolidated Mining Co., Inc. opposed the probate upon the
ground of forgery. After appropriate proceedings, the lower court admitted
the disputed document to probate. Hence, such appeal.
Butiong maintains that the lower court erred in entertaining appellant's
opposition and in not dismissing its appeal. It is obvious that Butiong's
contention is well taken.
Issue: Can Consolidate mining intervene as an oppositor? – No.
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Held: Indeed, it is well-settled that one who has or can have no interest in
succeeding a decedent cannot oppose the probate of his alleged will.
Appellant herein does not claim to have such interest in the succession to
Christian Harris. Accordingly, the lower court should not have considered
its opposition to the probate of the will much less given due course to the
present appeal.
menace or undue influence and that the will is genuine and not a forgery,
that he was of the proper testamentary age and that he is a person not
expressly prohibited by law from making a will. The intrinsic validity is
another matter and questions regarding the same may still be raised even
after the will has been authenticated. Thus, it does not necessarily follow
that an extrinsically valid last will and testament is always intrinsically valid.

The fact of ownership of the stocks does not give it any personality nor does
that make it a creditor of the estate. As mere owner of the shares of stocks,
it has no interest in the proceedings.
Purpose of the Requirement of Direct Interest
In Leviste v. Court of Appeals, the court declared that is not that
thereby the court may be prevented from learning facts which would
justify or necessitate a denial of probate, but rather that the courts and
the litigants should not be molested by the intervention in the proceedings
of persons with no interest in the estate which would entitle them to be
heard with relation thereto.
Matters in Probate Proceedings
Kinds of Probate
1. Ante Mortem Probate – instituted by the testator during his
lifetime;
2. Post Mortem Probate – instituted by the interested party
(heirs, creditors) of the estate.
Even if the will was validly executed, if the testator provides for dispositions
that deprives or impairs the lawful heirs of their legitime or rightful
inheritance according to the laws on succession, the unlawful
provisions/dispositions thereof cannot be given effect.
Such determination having attained that character of finality is binding on
this Court which will no longer be disturbed. Not that this Court finds the
will to be intrinsically valid, but that a final and executory decision of which
the party had the opportunity to challenge before the higher tribunals must
stand and should no longer be reevaluated.
(2) Alejandro’s disposition in his will of the alleged share in the conjugal
properties of his late spouse, whom he described as his “only beloved wife”,
is not a valid reason to reverse a final and executory order. Testamentary
dispositions of properties not belonging exclusively to the testator or
properties which are part of the conjugal regime cannot be given effect.
Matters with respect to who owns the properties that were disposed of by
Alejandro in the void will may still be properly ventilated and determined
in the intestate proceedings for the settlement of his and that of his late
spouse’s estate.

Two Phases of Probate Proceedings Other Relevant jurisprudence

1. Probate Proper – extrinsic validity determined NUGUID v. NUGUID The due execution thereof, the testator’s
2. Distribution Phase – when question of intrinsic validity of 17 SCRA 449 testamentary capacity, being of sound
the will shall be entertained. mind and the compliance with the
requisites or solemnities prescribed by
Matters Discussed in Probate Proceeding law, are the questions solely to be
presented and to be acted upon by the
General Rule: During the probate proceedings the probate court court
therein merely determines the extrinsic validity of the will. Specifically: PASTOR, JR. CA The issue in the probate of a will is
1. Question of Identity – whether the instrument offered for GR L-56430 restricted to that kind of validity of the
probate is the last will and testament of the testator. will which for example determines
whether or not the testator was
2. Question of Due Execution – whether the will was executed
possessed of a sound mind, whether or
according to the formalities required by law.
not he freely executed the will, and
3. Question of Testamentary Capacity – whether the testator
whether or not the will had been
had the testamentary capacity at the time of the execution
executed in accordance with legal
of the will; whether or not he was of sound mind; and
formalities.
whether he was already 18 years old when will was made.
The question of ownership is an
DOROTHEO v. COURT OF APPEALS extraneous matter which the probate
GR 108581, December 8, 1999
court cannot resolve with finality. The
said court may only provisionally pass
Facts: Aniceta Reyes died in 1969 without her estate being settled. Her
upon titles of properties to be included
husband Alejandro also died thereafter. In 1977, Lourdes Dorotheo filed for
the probate of the last will and testament of Alejandro. In 1981 the will was in the inventory of estate properties,
admitted to probate. It was then meted with a Motion to Declare the Will subject to final decision in a separate
Intrinsically Void which was granted and the will was declared intrinsically action to resolve the question of
void. ownership.
LIM v. CA Jurisdiction over probate and matters
Issue: May a last will and testament admitted to probate but declared 323 SCRA 102 resolved therein
intrinsically void in an order that has become final and executory be given CORONADO v. CA Probate court generally has no power to
effect? – No. GR 78778 pass upon questions of ownership.

Held: (1) Probate proceedings deal generally with the extrinsic validity of
the will sought to be probated, particularly on three aspects:
[1] Whether the will submitted is indeed, the decedent’s last will and
testament;
[2] Compliance with the prescribed formalities for the execution of wills;
[3] Testamentary capacity of the testator; and
[4] Due execution of the last will and testament.
Under the Civil Code, Due Execution includes a determination of whether
the testator was of sound and disposing mind at the time of its execution,
that he had freely executed the will and was not acting under duress, fraud,
Probate Court, Matters it Cannot Rule Upon
1. Whether or not a certain legacy or devise is valid, because it
pertains to the intrinsic validity of the will
2. Whether or not the disinheritance of an heirs is valid
3. Qualification of certain persons to inherit from the testator
4. Questions pertaining to impairment of legitime
5. Filiation
6. Title to property
7. Preterition

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN d
 Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 91
CAMAYA v. PATULANDONG
GR 144915, February 23, 2004
Facts: In 1972, Rufina Reyes executed a notarized will wherein she devised
a lot to her grandson Anselmo Mangulabnan Lot 288-A. Her son Bernardo
was appointed in the will as executor. During her lifetime, she herself filed
a petition for probate of her own will before CFI Nueva Ecija and it was
admitted to probate in January 1973.
On June 27, 1973 she executed a Codicil modifying the devise in her will
where her 4 children and Anselmo would inherit the property:
“UNA. - Ang Lote No. 288-A na nakalagay sa barrio ng Sta. Cruz, Gapan,
Nueva Ecija, magsukat 36,384 metro cuadrados, at nagtataglay ng TCT No.
NT-47089, na aking ipinamana sa aking apong si ANSELMO P.
MANGULABNAN, sangayon sa Pangkat IKA-LIMA, pp. 5-6, ng aking
HULING HABILIN (Testamento), ay ipinasiya kong ipagkaloob at ipamana
sa aking mga anak na sina BERNARDO, SIMPLICIA, GUILLERMA at
JUAN nagaapellidong PATULANDONG, at sa aking apong si ANSELMO P.
MANGULABNAN, sa magkakaparehong bahagi na tig-ikalimang bahagi
bawat isa sa kanila.
IKALAWA. - Na maliban sa pagbabagong ito, ang lahat ng mga tadhana ng
aking HULING HABILIN ay aking pinagtitibay na muli.”
Rufina Reyes died on May 14, 1988.
Mangulabnan then sought the delivery to him by executor Bernardo the
title to Lot 288-A. Bernardo refused in view of the Codicil..
This prompted Mangulabnan to file for Action for Partition, and the RTC
ordered the partition of the properties and to deliver the copy of subject
property to Mangulabnan – but without prejudice to probate of the codicil.
Patulandong then filed before RTC for Petition for Probate of Codicil.
Meanwhile, Mangulabnan caused the Cancellation of Title of testatrix over
the lot and a TCT was issued in his name. Mangulabnan sold such to the
Camayas in 1991 and TCT was also issued to them.
In 1996, the court in the probate proceedings admitted Codicil to probate.
It declared the sale to the Camayas void and reissuance of the title to the
recipients of the property as instructed by the Codicil.
Camaya argues that the probate court had no jurisdiction to declare null
and void the sale and titles.
Issue: Did the RTC exceed its jurisdiction when it declared null and void
and ordered the cancellation of the TCT of the Camayas as well as the
deed of sale? – Yes.
Held: (1) Limited Jurisdiction of the Probate Court. - In Cuizon v. Ramolete,
this Court elucidated on the limited jurisdiction of a probate court, to wit:
“It is well-settled rule that a probate court or one in charge of
proceedings whether testate or intestate cannot adjudicate or determine
title to properties claimed to be a part of the estate and which are equally
claimed to belong to outside parties. All that said court could do as regards
said properties is to determine whether they should or should not be
included in the inventory or list of properties to be administered by the
administrator. If there is no dispute, well and good; but if there is, then the
parties, the administrator, and the opposing parties have to resort to an
ordinary action for a final determination of the conflicting claims of
title because the probate court cannot do so.
Having been apprised of the fact that the property in question was in the
possession of third parties and more important, covered by a transfer
certificate of title issued in the name of such third parties, the respondent
court should have denied the motion of the respondent administrator and
excluded the property in question from the inventory of the property of the
estate. It had no authority to deprive such third persons of their possession
and ownership of the property”
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
Following Cuizon, the probate court exceeded its jurisdiction when it
further declared the deed of sale and the titles of petitioners null and void,
it having had the effect of depriving them possession and ownership of the
property.
(2) Torrens Title not Subject to Collateral Attack. - Moreover, following
Section 48 of the Property Registry Decree which reads:
SECTION 48. Certificate not subject to collateral attack. - A certificate of title
shall not be subject to collateral attack. It cannot be altered, modified, or
cancelled except in a direct proceeding in accordance with law, petitioners’
titles cannot, under probate proceedings, be declared null and void.
(3) Judgment in the Partition Case did Not Bar Probate of Codicil. - Though
the judgment in the partition case had become final and executory as it was
not appealed, it specifically provided in its dispositive portion that the
decision was “without prejudice [to] ... the probate of the codicil.”
The rights of the prevailing parties in said case were thus subject to the
outcome of the probate of the codicil. The probate court being bereft of
authority to rule upon the validity of petitioners’ titles, there is no longer
any necessity to dwell on the merits of petitioners Camayas’ claim that they
are innocent purchasers for value and enjoy the legal presumption that the
transfer was lawful.
Exceptions
ARANAS v. MERCADO
GR 156407, January 15, 2014
Facts: This involved the intestate estate of Emigdio Mercado. In 1991,
Thelma (daughter from second marriage) filed petition for appointment of
Teresita (second wife) as administrator of the estate and was issued.
Teresita as administrator, submitted inventory of the estate indicating the
Emigdio left no real properties but only personal properties (cash, furniture,
piece of jewelry, shares of stocks).
Thelma (on the belief that there are other properties) moved RTC to direct
Teresita to amend inventory and be examined about such. Despite
Teresita’s compliance Thelma opposed the approval of inventory.
After a series of hearings that ran for almost eight years, RTC ruled that the
inventory submitted by Teresita had excluded properties that should be
included ordering the amendment of inventory.
In a MR, Teresita, joined by other heirs of Emigdio, sought reconsideration
of the order on the ground that one of the real properties and parcel of land
in the deed of assignment were already in the possession and registered
in the name of Mervir Realty. MR was denied.
Issue: Was it proper for RTC to direct the inclusion of certain properties in
the inventory notwithstanding that such properties had either been
transferred by sale or exchanged for corporate shares in Mervir Realty by
the decedent Emigdio Mercado during his lifetime?
Yes. It was proper for the RTC to have included such.
Held: (1) Special and Limited Jurisdiction of the Probate Court. – Here, the
general rule is that jurisdiction of the trial court, either as a probate court or
an intestate court, relates only to matters having to do with the probate of
the will and/or settlement of the estate of deceased persons, but does not
extend to the determination of questions of ownership that arise during the
proceedings.
All that the said court could do as regards said properties is to determine
whether or not they should be included in the inventory of properties to be
administered by the administrator. If there is no dispute, there poses no
problem, but if there is, then the parties, the administrator, and the
opposing parties have to resort to an ordinary action before a court
exercising general jurisdiction for a final determination of the conflicting
claims of title.
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(2) Subject to Exceptions as Justified by Expediency and Convenience. -
The probate court is authorized to determine the issue of ownership of
properties for purposes of their inclusion or exclusion from the inventory to
be submitted by the administrator, but its determination shall only be
provisional unless:
[1] the interested parties are all heirs of the decedent, or
[2] the question is one of collation or advancement, or
[3] the parties consent to the assumption of jurisdiction by the probate
court and the rights of third parties are not impaired.
Then, the court is competent to resolve issues on ownership. Verily, its
jurisdiction extends to matters incidental or collateral to the settlement and
distribution of the estate, such as the determination of the status of each
heir and whether property included in the inventory is the conjugal or
exclusive property of the deceased spouse.
(3) RTC followed the procedure for the inventory. - The explanations
indicated that the directive to include the properties in question in the
inventory rested on good and valid reasons, and thus was far from
whimsical, or arbitrary, or capricious.
(4) Torrens Titles would not prevent inclusion . - The fact that the
properties were already covered by Torrens titles in the name of Mervir
Realty could not be a valid basis for immediately excluding them from the
inventory in view of the circumstances admittedly surrounding the
execution of the deed of assignment.
This is because: The Torrens system is not a mode of acquiring titles to lands;
it is merely a system of registration of titles to lands. However, justice and
equity demand that the titleholder should not be made to bear the
unfavorable effect of the mistake or negligence of the State’s agents, in the
absence of proof of his complicity in a fraud or of manifest damage to third
persons.
The limited jurisdiction of the RTC as an intestate court might have
constricted the determination of the rights to the properties arising from
that deed, but it does not prevent the RTC as intestate court from ordering
the inclusion in the inventory of the properties subject of that deed. This is
because the RTC as intestate court, albeit vested only with special and
limited jurisdiction, was still "deemed to have all the necessary powers to
exercise such jurisdiction to make it effective."
ROMERO v. COURT OF APPEALS
GR 188921, April 18, 2012
The determination of whether a property is conjugal or paraphernal for
purposes of inclusion in inventory of the estate rests with the probate court.
The jurisdiction to try controversies between heirs of a deceased person
regarding the ownership of properties alleged to belong to his estate, has
been recognized to be vested in probate courts.
The matter in controversy is the question of ownership of certain of the
properties involved — whether they belong to the conjugal partnership or
to the husband exclusively. This is a matter properly within the jurisdiction of
the probate court which necessarily has to liquidate the conjugal
partnership in order to determine the estate of the decedent which is to be
distributed among his heirs who are all parties to the proceedings
In the present case, petitioners assume that the properties subject of the
allegedly illegal sale are conjugal and constitute part of their share in the
estate. To date, there has been no final inventory of the estate or final
order adjudicating the shares of the heirs. Thus, only the probate court can
competently rule on whether the properties are conjugal and form part
of the estate. It is only the probate court that can liquidate the conjugal
partnership and distribute the same to the heirs, after the debts of the
estate have been paid.
NOTE: If one of the spouses die, the liquidation of the conjugal partnership
or absolute community shall be made in the same proceeding.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
MORALES v. OLONDRIZ
GR 198994, February 3, 2016
Facts: Alfonso Olondriz (decedent) died leaving his wife and children as
heirs. Believing that he died intestate, the respondent heirs of Olondriz filed
a petition for the partition (Partition Case) in July 4, 2003.
In July 11, 2003, however, Iris Morales filed a Probate of a Will that was
allegedly made in1991. The will appointed Morales as administrator and
dividing the estate into 6 parts. Notably, the will omitted Francisco, an
illegitimate son of Alfonso.
Morales moved to suspend the partition case and the heirs moved to
dismiss the probate proceedings on the ground of preterition from the will.
The intestate proceedings were suspended for the probate proceedings.
RTC observed that Moral admitted the Francisco is an heir of Alfonso and
that he was omitted from the will and based on the evidentiary hearing,
Francisco was clearly preterited. Thus RTC ruled to proceed to intestacy.
The CA reasoned that while probate proceedings take precedence over
intestate proceedings, the preterition of a compulsory heir in the direct line
annuls the institution of heirs in the will and opens the entire inheritance
into intestate succession. Morales however argues that the probate of the
will is mandatory.
Issue: Should the probate proceedings continue? - No.
Held: (1) Effect of Preterition. - Preterition is the complete and total
omission of a compulsory heir from the testator’s inheritance without the
heir’s express disinheritance – omission of compulsory heir/s in the direct
line and effect is that is shall annul the institution of heirs but the devises and
legacies shall remain valid insofar as the legitimes are not impaired.
Consequently, if a will does not institute any devisees or legatees, the
preterition of a compulsory heir in the direct line will result in total intestacy.
In the present case, the decedent’s will evidently omitted Francisco
Olondriz as an heir, legatee, or devisee. As the decedent’s illegitimate son,
Francisco is a compulsory heir in the direct line. Unless Morales could show
otherwise, Francisco’s omission from the will leads to the conclusion of his
preterition.
Issue: Was it proper for RTC to pass upon the intrinsic validity of the will
during probate proceedings? – Yes.
The general rule is that in probate proceedings, the scope of the court’s
inquiry is limited to questions on the extrinsic validity of the will; the
probate court will only determine the will’s formal validity and due
execution. However, this rule is not inflexible and absolute.
It is not beyond the probate court’s jurisdiction to pass upon the intrinsic
validity of the will when so warranted by exceptional circumstances. When
practical considerations demand that the intrinsic validity of the will be
passed upon even before it is probated, the probate court should meet the
issue. The decedent’s will does not contain specific legacies or devices and
Francisco’s preterition annulled the institution of heirs.
The annulment effectively caused the total abrogation of the will,
resulting in total intestacy of the inheritance. The decedent’s will, no
matter how valid it may appear extrinsically, is null and void. The conduct
of separate proceedings to determine the intrinsic validity of its
testamentary provisions would be superfluous. Thus, we cannot attribute
error – much less grave abuse of discretion – on the RTC for ordering the
case to proceed intestate.
Note: It was shown in this case that the fact of preterition was not disputed
by the parties. They were given a chance, through evidentiary hearings, to
prove that Francisco received a house and lot inter vivos as an advance on
his legitime. However they were not able to prove it. This is an instance
where even though at the point of probate proper the court can look into
the intrinsic validity for practical consideration – and to avoid waste of time.
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RAMON CHING AND PO WING PROPERTIES v. RODRIGUEZ
GR 192828, November 28, 2011
Facts: Respondents Cheng and others filed a complaint against Ching and
petitioners, the complaint was captioned Disinheritance, Declaration of
Nullity of Agreement, Wavier, etc. The Chengs argue that they are the heirs
of Lim San also known as Antonio Ching and that Ramon Ching
misrepresented himself as the son of Antonio and Lucina but in fact he was
just adopted and his birth certificate was just simulated.
In 1996, Antonio Ching died of a stab wound and police investigators have
identified Ramon as the prime suspect and he now stands as lone accused
for the murder charge filed against him. Ramon here remained at large.
Upon the circumstances cited and using Article 919 (on disinheritance), the
Chengs concluded that Ramon can be legally disinherited thus prohibited
to receive any share form the estate of Antonio.
A motion to dismiss was filed for lack of jurisdiction over the subject matter
arguing that since the complaint sought to rule upon a disinheritance, then
it should be the probate or intestate court’s jurisdiction and not to the RTC
acting as an ordinary court. MTD was denied. CA affirmed.
Issue: Can Ramon Ching be disinherited?
Held: (1) Disinheritance only by a will. - disinheritance can be effected only
through a will wherein the legal cause therefor shall be specified. No will or
any instrument supposedly effecting the disposition of Antonio's estate was
ever mentioned. Hence, despite the prayer for Ramon's disinheritance, Civil
Case No. 02-105251 does not partake of the nature of a special proceeding
and does not call for the probate court's exercise of its limited jurisdiction.
The Complaint filed was not instituted conclusively to resolve the issues as
to the estate, hence it is not a proper subject for a special proceeding for
the settlement of the estate of a deceased person.
(2) Complaint is Not Strategically Sound. - The respondents' resort to an
ordinary civil action before the RTC may not be strategically sound, because
a settlement proceeding should thereafter still follow, if their intent is to
recover from Ramon the properties alleged to have been illegally
transferred in his name.
Note: There is no such thing as praying to the court for disinheritance of an
heir. It is only the testator himself who can disinherit the heir. So if there is
no disinheritance during the lifetime of a person then there can be no
disinheritance.
IN RE: IN THE MATTER OF THE WILL OF PALAGANAS
GR 169144, January 26, 2011
Facts: In 2001, Ruperta Palaganas, a Filipino who was naturalized as US
citizen died single and childless and left a last will and testament she
executed in California, she designated her Brother Sergio as executor.
In 2003, her brother Ernesto filed for the probate of the will but this was
opposed by the nephews Manuel and Benjamin on the ground that the will
should not be probate in the PH but in the US where she executed it.
RTC admitted the will to probate, the nephews went to CA arguing that an
unprobated will executed by an American citizen in the US cannot be
probate for the first time in the Philippines. But CA affirmed RTC.
Issue: Whether or not a will executed by a foreigner abroad may be probated
in the Philippines although it has not been previously probated and allowed in
the country where it was executed. – Yes.
Ruling: Our laws do not prohibit the probate of wills executed by foreigners
abroad although such will has not been probated and allowed in the
countries of their execution. A foreign will can be given legal effects in our
jurisdiction pursuant to Article 816 of the New Civil Code which provides
that the will of an alien who is abroad produces effect in the Philippines if
made in accordance with the formalities prescribed by the law of the place
where he resides or according to formalities observed in his country.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
Our rules require merely that the petition for the allowance of a will must
show, so far as known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, legatees, and devisees of
the testator or decedent;
(c) The probable value and character of the property of the estate;
(d) The name of the person for whom letters are prayed; and
(e) If the will has not been delivered to the court, the name of the person
having custody of it.
Jurisdictional facts refer to the fact of death of the decedent, his residence
at the time of his death in the province where the probate court is sitting,
or if he is an inhabitant of a foreign country, the estate he left in such
province.
The rules do not require proof that the foreign will has already been allowed
and probated in the country of its execution.
Petitioners Manuel and Benjamin obviously have in mind the procedure for
the reprobate of will before admitting it here. But, reprobate or re-
authentication of a will already probated and allowed in a foreign country
is different from that probate where the will is presented for the first time
before a competent court.
Reprobate is specifically governed by Rule 77 of the Rules of Court. Contrary
to Manuel’s stance, since this rule applies only to reprobate of a will, it
cannot be made to apply to the present case.
In reprobate, the local court acknowledges as binding the findings of the
foreign probate court provided its jurisdiction over the matter can be
established. Besides, petitioners Manuel’s and Benjamin’s stand is fraught
with impracticality.
If the instituted heirs do not have the means to go abroad for the probate
of the will, it is as good as depriving them outright of their inheritance, since
our law requires that no will shall pass either real or personal property
unless the will has been proved and allowed by the proper court.
ARTICLE 839
The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been
complied with;
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of execution;
(3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some
other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that
the instrument he signed should be his will at the time
of affixing his signature thereto.
Grounds for Disallowance of Wills
General Categories
(1) Failure to comply with the formalities (1)
(2) Lack of testamentary capacity (2)
(3) Vitiated consent (3-6)
GR: These grounds are exclusive.
XPN: Revocation, because even if the will is executed in compliance
with all the formalities prescribed by law and the testator was of sound
mind and at the legal age that time, that there was no vitiation of
consent but he already revoked – still the will cannot be probated.
Void or Valid; No Voidable Wills
While in Obligations and Contracts the presence of the vices of consent
such as fraud, mistake, undue influence , duress, etc. would render the
contract voidable – in Wills it renders the contract void. There is no such
thing as a voidable will – it is either valid or void.
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Revocation from Disallowance
REVOCATION DISALLOWANCE
Both presupposes an existing will and because of revocation or
disallowance the existing will becomes null and void.
Voluntary act of the testator Through a judicial decree and
and requires that there must be testator has no participation in
animus revocandi disallowing a will
With or without cause There is a ground under 839
Can be partial or total Generally total unless the fraud
or undue influence affects only
a part of the will
Can only be done during the Usually invoked after the
lifetime of the testator testator’s death
ORTEGA v. VALMONTE
GR 157451, December 16, 2005
Facts: In 1980, Placido came back to the Philippines and lived in a house
and lot which he owned in common with his sister Ciriaco Valmonte and
titled in their names.
Two years after his arrival from the US, Placido, at the age of 80 married
Josefina who was then 28 years, in a ceremony on February 5, 1982. Placido
executed a last will and testament in English of 2 pages dated in 1983.
The first page contains the entire testamentary dispositions and a part of
the attestation clause and was signed at the end or bottom of that page by
the testator and on the left hand margin by the three instrumental
witnesses. The second page contained the continuation of the attestation
clause and the acknowledgment and was signed by the witnesses at the
end of the attestation clause and again on the left hand margin.
The will provided that:
2. I give, devise and bequeath unto my loving wife JOSEFINA C.
VALMONTE, one half portion of the follow-described properties which
belongs to me as co-owners:
3. All the rest, reside and remainder of my real and personal properties,
including my savings account bank book in USA which is in the possession of
my nephew, and all others whatsoever and wherever found, I give, devise and
bequeath to my said wife, Josefina C. Valmonte;
4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last
will and testament, and it is my will that said executrix be exempt from filing
a bond;
The probate was opposed, among other grounds, but the petitioner does
not dispute the due observance of the formalities in the execution of the
will, but maintains that the circumstances surrounding it are indicative of
the existence of fraud. Particularly, she alleges that respondent, who is the
respondent, who is the testator’s wife and sole beneficiary, conspired with
the notary public and the three attesting witnesses deceiving Placido to
sign it. Deception is allegedly reflected in the varying dates of the execution
and attestation of the will.
Petitioner contends that it was “highly dubious for a woman at the prime of
her young life to almost immediately plunge into marriage with a mon who
was thrice her age and who happened to be a Fil-American pensionado”
thus casting doubt on the intention of respondent in seeking the probate
of the will. Moreover, it supposedly defies human reason, logic and
common experience for an old man with a severe psychological condition to
have willingly signed a last will and testament.
Held: We are not convinced. Fraud is a a trick, secret device, false
statement, or pretense, by which the subject of it is cheated. It may be of
such character that the testator is misled or deceived as to the nature or
contents of the document which he executes, or it may relate to some
extrinsic fact, in consequence of the deception regarding which the testator
is led to make a certain will which, but for the fraud, he would not have
made.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
We stress that the party challenging the will bears the burden of proving
the existence of fraud at the time of its execution. The burden to show
otherwise shifts to the proponent of the will only upon a showing of
credible evidence of fraud.
Unfortunately in this case, other than the self-serving allegations of
petitioner, no evidence of fraud was ever presented. It is a settled
doctrine that the omission of some relatives does not affect the due
execution of a will. That the testator was tricked into signing it was not
sufficiently established by the fact that he had instituted his wife, who was
more than fifty years his junior, as the sole beneficiary; and disregarded
petitioner and her family, who were the ones who had taken “the cudgels
of taking care of [the testator] in his twilight years.”
Moreover, as correctly ruled by the appellate court, the conflict between
the dates appearing on the will does not invalidate the document,
“because the law does not even require that a [notarial] will be executed
and acknowledged on the same occasion.” More important, the will must
be subscribed by the testator, as well as by three or more credible witnesses
who must also attest to it in the presence of the testator and of one another.
Furthermore, the testator and the witnesses must acknowledge the will
before a notary public. In any event, we agree with the CA that “the variance
in the dates of the will as to its supposed execution and attestation was
satisfactorily and persuasively explained by the notary public and the
instrumental witnesses.”
Notably, petitioner failed to substantiate her claim of a “grand conspiracy”
in the commission of a fraud. There was no showing that the witnesses of
the proponent stood to receive any benefit from the allowance of the will.
The testimonies of the three subscribing witnesses and the notary are
credible evidence of its due execution. Their testimony favoring it and the
finding that it was executed in accordance with the formalities required by
law should be affirmed, absent any showing of ill motives.
Section 2
INSTITUTION OF HEIR Arts. 840-856
ARTICLE 840
Institution of heirs is an act by virtue of which a testator
designates in his will the person or persons who are to succeed
him in his property and transmissible rights and obligations.
Characteristics of an Instituted Heir
(1) Voluntary Heirs. – This applies in testamentary succession because
compulsory heirs need not be instituted in the will for them to inherit.
They are entitled as a matter of right, even if they are not mentioned in
the will. They are also different from legatees or devisees as they are
instituted to the universality of the property, right and obligation or to
an aliquot, spiritual, ideal or spiritual share.
(2) Continues Personality of Testator. – They also succeed not only to
the property and right but also to the obligations of the testator, but
only limited as to the value of inheritance received by the heir.
(3) Natural Persons. – As a rule instituted heirs are natural persons,
while juridical persons may be instituted as heirs there are additional
requisites to be complied with. The minimum requirement: Conceived
at the time of death of testator.
Article 40. Birth determines personality; but the conceived child
shall be considered born for all purposes that are favorable to it,
provided, it be born later with the conditions specified in the
following article.
Article 41. For civil purposes, the fetus is considered born if it is
alive at the time it is completely delivered from the mother’s
womb. However, if the fetus had an intra-uterine life of less than
seven months, it is not deemed born if it dies within twenty-four
hours after its complete delivery from the maternal womb.
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Suppose grandmother institutes unborn child (still inside the womb) as
the heir to half of her estate – this is valid conditioned on the fact that
the baby must be born because without birth that child does not
become a person and will not inherit the estate.
If child dies after delivery:
 If the child had intrauterine life of at least 7 months – deemed
to have inherited since it is considered born upon delivery
 If the child had intrauterine life of less than 7 months
o If child died after 24 hours, deemed to have civil
personality and deemed to succeed to the state
o If child died within 24 hours, the child would not
be able to inherit, there was no civil personality
(4) Acquires Disposable Portion and Cannot Impair Legitime. – The
heirs acquire rights limited to the disposable portion and cannot impair
the legitime.
(5) Presumed Equal – The institution of heirs is presumed to be equal,
unless there is a contrary intention made in the will by the testator.
REQUISITES FOR A VALID INSTITUTION
1. Will must be extrinsically valid. Institution as concept in
testamentary succession, cannot be effected if no valid will.
2. It must also be intrinsically valid. There must be no
impairment of legitimes.
3. There must be no preterition otherwise under 854, then the
institution of heirs in the will shall be annulled.
4. The heir must be certain or ascertainable. The voluntary heir
should be identifiable or can be identified.
5. Institution must be effective. Such as when the voluntary
heirs already predeceased the testator, or repudiation or due
to incapacity.
ARTICLE 841
A will shall be valid even though it should not contain an
institution of an heir or such institution should not comprise the
entire estate, and even though the person so instituted should not
accept the inheritance or should be incapacitated to succeed.
In such cases the testamentary disposition made in accordance
with law shall be complied with and the remainder of the estate
shall pass to the legal heirs.
Non-Necessity of Institution of Heir
Even if the will does not contain an institution of an heir the will is valid
for example in Seangio v. Reyes, in case that a will only contains a
disinheritance the will is still valid as it excludes a compulsory heir from
the estate – and can be probated. The revocation in the will still stands
even if the will itself has become ineffective.
Even if institution does not comprise entire estate. When T disposes
only 1/4 of the estate there will be a mixed succession, then there shall
be probate as to the 1/4 and intestate or legal succession shall apply to
the remaining 3/4 of the estate.
ARTICLE 842
One who has no compulsory heirs may dispose by will all his
estate or any part of it in favor of any person having capacity to
succeed.
One who has compulsory heirs may dispose of his estate provided
he does not contravene the provisions of this Code with regard to
the legitime of said heirs.
Freedom of Disposition of Estate
[1] If one has no compulsory heirs:
 He can give his estate or any portion thereof to anybody as
long as there is capacity to succeed.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
[2] But if one has compulsory heirs
 There is a need to respect the legitimes of compulsory heirs
 The free portion can, however, be given to anybody also
including the compulsory heirs.
ARTICLE 843
The testator shall designate the heir by his name and surname,
and when there are two persons having the same names, he shall
indicate some circumstance by which the instituted heir may be
known.
Even though the testator may have omitted the name of the heir,
should he designate him in such manner that there can be no
doubt as to who has been instituted, the institution shall be valid.
How the Designation of Heir is Made
By their name or surname (e.g. John Doe)
 If two persons have the same – indicate some circumstance
so that they shall be known. (e.g. John Doe, the law student)
In case of omission of name, but if designated in such manner that it
cannot be doubted that who was designated was that person, then the
institution shall be valid. (e.g. “my niece” and only one niece).
ARTICLE 844
An error in the name, surname or circumstances of the heir shall
not vitiate the institution when it is possible, in any other
manner, to know with certainty the person instituted.
If among persons having the same names and surnames, there is
a similarity of circumstances in such a way that , even with the
use of other proof, the person instituted cannot be identified,
none of them shall be an heir.
Effect of Error
GR: It will not vitiate the institution when it is possible, in any other
manner to know with certainty the person instituted.
 “Any other manner” – oral declarations made by the testator
cannot be used (Article 785).
XPN: If there is such similarity in circumstances in such a way that even
with the use of other proof, the person instituted cannot be identified,
none of them shall be an heir.
ARTICLE 845
Every disposition in favor of an unknown person shall be void,
unless by some event or circumstance his identity becomes
certain. However, a disposition in favor of a definite class or
group shall be valid.
Unknown Instituted Heir
GR: Disposition shall be void.
XPN: Unless by some event or circumstance the identity becomes
certain such as the existence of an identifying circumstance can
happen before or after the death of the testator.
 (e.g. Nephew who enters priesthood – Estate of Rigor v. Rigor)
 He must have been conceived at the time of institution – at
the moment of death.
ARTICLE 846
Heirs instituted without designation of share shall inherit in
equal parts.
Principle of Equality
If testator wanted them to have different shares, the T should have then
specified so in the will. Thus, the presumption shall be equal.
 This applies to the institution as to the Free Portion
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Suppose T instituted in his will as heirs A, B and C. A is legitimate child There are six sisters, two of which are deceased and five nieces.
of T. The value of the estate is 24M, how much shall each heir receive?
The lower court ruled that the portions given shall be divided into six equal
Divide the estate as to the free portion and legitime parts corresponding to the number of sisters – each living sister should get
 P24,000,000 / 2 = P12,000,000 1/6 each and the children of those deceased sister shall divide on the 1/6
share that was for the deceased sister.
Legitime of P12M Free Portion of P12M
However, this division was questioned arguing that the codicil should have
As the compulsory heir, A is Absent designation of shares been construed as to mean that the estate shall be divided equally between
entitled to receive his legitime they shall be presumed equal: the living sisters and the children of the deceased sisters all in equal share
in the value of P12M. meaning each niece shall have the same share the surviving sister.
P12M / 3 = P4M each instituted
heir. Note that A is still an Issue: Should a niece receive same share as that of a surviving sister? - Yes
instituted heir – an heir can be Held: (1) Intention of Testatrix. – It was the intention of testatrix to divide
both compulsory and voluntary her property equally between her sisters and nieces.
The court below based its construction upon the theory that the other
If what was given included specific properties. Suppose the value of construction would be "an admission that the testatrix desired to favor her
estate is P900,000 but deceased sister Eufemia Uson, who left three children, more than her other
 A received car worth P250,000 deceased sister Antonia Uson, who left two children, and moreover both
 B received jewelry worth P70,000 would be more favored than any of the other four surviving sisters, one of
whom was married at the time of the execution of the said codicil and
 C received laptop worth P100,000
without doubt had children."
How is the principle of equality be applied in this instance?
(2) The wording of the codicil. – First, declares that after the death of her
Divide the estate into three – P300,000 (presuming this free portion) husband “my sisters and nieces xx shall succeed as heirs.”

Heirs Equal Shares Received To be Given Second, testatrix names and identifies each one of the persons whom she
A P300,000 P250,000 P50,000 desires to succeed in the property after her husband. Mentioned specially
B P300,000 P70,000 P230,000 are the nieces as well as the sisters. The nieces are referred to in no different
C P300,000 P100,000 P200,000 way from the sisters.

Note: It would depend on the tenor of the will, it could be possible that
there are specific legacies or devises, as to the balance and as to the
equality.
ARTICLE 847
When the testator institutes some heirs individually and others
collectively as when he says, "I designate as my heirs A and B, and
the children of C," those collectively designated shall be
considered as individually instituted, unless it clearly appears
that the intention of the testator was otherwise.
Principle of Individuality
For example “I designate as my heirs A and B, and the children of C.”
 X and Y are the children of C, they shall receive the same
shares as A and B despite being referred to collectively.
 They shall be considered individually instituted.
 Thus the estate shall be divided into four.
Applies only to the free portion. Thus the legitime of the compulsory
heirs shall not be included in the computation.
NABLE v. USON
GR L-8927, March 10, 1914
Facts: This involved the clauses in the codicil of the will of Filomena Uson.
First. I declare that all the property which belongs to me as conjugal property,
referred to in my said testament, shall be the property of my aforesaid husband,
Don Rafael Sison; in case all or part of said property exists at my husband's
death, it is my will that at his death my sisters and nieces hereinafter named
succeed him as heirs.
Second. I declare to be my sisters in lawful wedlock the persons named Doña
Antonia Uson, now deceased, who has left two daughters called Maria
Rosario, widow, and Maria Paz, unmarried; Maria Romualda Uson, widow of
Estanislao Lengson; Ignacia Uson, married to Don Vicente Puson; Eufemia
Uson, now deceased, who is survived by three daughters called Maria Salud,
Maria Amparo, and Maria Asuncion; and Maria Pilar Uson; Maria Manaoag
Uson, unmarried, issued had by our deceased after Don Daniel Uson with one
Leonarda Fernandez, alias Andao de Lingayen, so that they may have and
enjoy it in equal parts as good sisters and relatives.
Third, taking the two, and the last clause she names all of the persons whom
she desires to take under her will be name "so that they must take and
enjoy the property in equal parts as good sisters and relatives." Is then
decisive of her intention that sisters and nieces shall take and enjoy the
property in equal parts.
It shall now be divided into 9 equal parts and not 6 equal parts.
ARTICLE 848
If the testator should institute his brother and sisters, and he has
some full blood and others of half‐blood, the inheritance shall be
distributed equally unless a different intention appears.
Institution of Brothers and Sisters
Testamentary Succession Intestate Succession
Shares are the same unless a Brother of the full-blood gets
different intention appears. double the share of the brother
(Principle of Equality) of the half blood (Art. 1006).
ARTICLE 849
When the testator calls to the succession a person and his
children, they are all deemed to have been instituted
simultaneously and not successively.
Principle of Simultaneity
I hereby institute B and his thrchildren to my entire estate.
Applying the Principle of Individuality, there are four divisions of the
estate, for B and the 3 children. Under Principle of Simultaneity, there
is no need to wait for B’s death because they all inherit at the same
time – equally and simultaneously. There can be successive institution
in substitution of heirs.
ARTICLE 850
The statement of 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.

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN d
 Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 97
Statements of a False Cause
GR: The statement of a false cause in the institution shall be considered
as not written. The institution shall still be given effect.
 “I hereby give to A one-half of my estate for A took care of me
while I was in a coma.” If turned out false, still valid.
XPN: Unless it appears from the will that the testator would not have
made such institution if he had known the falsity of such cause.
 “I would have wanted to give B one-half of estate, but because
A took care of me when I was in a coma, I am giving it to A.”
 If false, A would not get the inheritance because if testator
would have known then A would not be instituted.
If revocation is based on a false cause, the revocation is not valid. But,
if the institution is based on revocation, the institution is still valid to
give effect the institution.
Liberality or Generosity of Testator
AUSTRIA v. REYES
GR L-23078, February 27, 1970
Facts: A petition for ante-mortem probate proceedings was filed by Basilia
Austria of her last will and testament. The bulk of the estate were to pass to
the respondents Cruzes (Perfecto, Benita, Isagani, Alberto and Luz) all of
whom had been assumed and declared by Basilia as her own legally
adopted children. Basilia died two years after her will was allowed to
probate – the petitioners (nephews and nieces) filed petition in intervention
for partition alleging that the five respondents had not in fact been
lawfully adopted rendering them mere strangers to the decedent without
any right to succeed as heirs.
Issue: Should the institution of Cruz et al. as heirs be annulled? – No.
Held: (1) Requisites for Annulment of Institution of Heirs. – Before the
institution of heirs be annulled under Article 850, it must be shown that
[1] The cause for institution must be stated in the will;
[2] The cause must be shown to be false;
[3] Must appear from the face that testator would have not made such if
she had known the falsity of the case.
(2) Cause for institution, not stated. – Petitioner argue that the impelling
reason of institution of the respondents was the belief of testatrix that
under the law she could not do otherwise. But if this were the case, she did
not make it known in her will.
Surely if she was aware that succession to the legitime takes place by
operation of law, independent of her own wishes, she would not have
found it convenient to name her supposed compulsory heirs to their
legitimes. Her express adoption of the rules on legitimes should very well
indicate her complete agreement with that statutory scheme.
But even this, like the petitioners' own proposition, is highly speculative of
what was in the mind of the testatrix when she executed her will. One fact
prevails, however, and it is that the decedent's will does not state in a
specific or unequivocal manner the cause for such institution of heirs. We
cannot annul the same on the basis of guess work or uncertain implications.
(3) No showing of possibility to revoke if known. – Would the late Basilia
caused the revocation of the institution of heirs if she had known the she
was mistaken in treating these heirs as her legally adopted children? Or
would she have instituted them nonetheless?
The decedent's will, which alone should provide the answer, is mute on this
point or at best is vague and uncertain. The phrases, "mga sapilitang
tagapagmana" and "sapilitang mana," were borrowed from the language of
the law on succession and were used, respectively, to describe the class of
heirs instituted and the abstract object of the inheritance. They offer no
absolute indication that the decedent would have willed her estate other
than the way she did if she had known that she was not bound by law to
make allowance for legitimes.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
Her disposition of the free portion of her estate (libre disposicion) which
largely favored the respondent Perfecto Cruz, the latter's children, and the
children of the respondent Benita Cruz, shows a perceptible inclination on
her part to give to the respondents more than what she thought the law
enjoined her to give to them.
ARTICLE 851
If the testator has instituted only one heir, and the institution is
limited to an aliquot part of the inheritance, legal succession
takes place with respect to the remainder of the estate.
The same rule applies if the testator has instituted several heirs,
each being limited to an aliquot part, and all the parts do no cover
the whole inheritance.
Effect of Institution to a Part of the Estate
Article 851 applies when there is a remainder or balance and there is no
intent to give all to the instituted heirs, otherwise the remainder should
be divided proportionately under Article 852.
[1] One heir instituted – the remaining shall go legal succession.
[2] Several heirs are instituted. – The remaining will go to the legal heirs
by way of intestate succession.
ARTICLE 852
If it was the intention of the testator that the instituted heirs
should become sole heirs to the whole estate, or the whole free
portion, as the case may be, and each of them has been instituted
to an aliquot part of the inheritance and their aliquot parts
together do not cover the whole inheritance, or the whole free
portion, each part shall be increased proportionally.
Effect of Institution to a Part but Intent is to Give Entire Estate
Art. 852 applies only if the intent is to give all only to those instituted,
otherwise legal succession takes place as to the remainder, unless said
remainder has been completely disposed of by way of legacies or
devises. In other words, while Art. 851 provides the general rule, Art.
852 states the exception.
IN CASE OF EQUAL SHARES:
I hereby institute A, B and C my entire estate at one-fourth each.
If estate is P12,000,000, divided by 3 it shall be P4,000,000 the share is
then increase proportionately, if the designation of shares is equal.
Estate: P12,000,000
A (1/4 share) P12M/4 = P3M + P1M = 400K
B (1/4 share) P12M/4 = P3M + P1M = 400K
C (1/4 share) P12M/4 = P3M + P1M = 400K
= P9M P3M = P12M
P3M balance
IN CASE OF UNEQUAL SHARES:
I hereby institute as heirs to my entire estate – to A as to the one-fourth;
to B as to the one-half; and to C as to the one-eight.
Suppose with estate at the value of P12,000,000 but sharing is:
 A is instituted to 1/4
 B is instituted to 1/2
 C in instituted to 1/8
Looking at the sharing, it shall not cover the estate and there is still a
remainder – and if the intent was to give entire estate to the instituted
heirs the shares shall be increased accordingly.
d
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 Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 98

Estate: 24,000,000
Proportional Reduced
First, determine share each instituted heir is entitled to according Reduction Shares
to the sharing provided by law: A 1/4 6M 6/26 x 2M (461,538) 5,538,462
B 1/2 12M 12/26 x 2M (923,077) 11,076,923
A 1/4 1/4 x 24,000,000 6,000,000 C 1/8 8M 8/26 x 2M (615,385) 7,384,615
B 1/2 1/2 x 24,000,000 12,000,000 TOTAL 26M
TOTAL (2,000,000) 24,000,000
C 1/8 1/8 x 24,000,000 3,000,000 EXCESS 2M
TOTAL 21,000,000
BALANCE 3,000,000 Thus, to proportionally decrease the shares, subtract proportional
reduction to the share that each heir should have been entitled.
Note that there is still a balance of P3,000,000. Article 852 instructs
that if it was the intention of the testator that the instituted heirs
ARTICLE 854
should become the sole heirs to the whole estate then the excess The preterition or omission of one, some, or all of the compulsory
shall be distributed not with the same sharing but instead, each heirs in the direct line, whether living at the time of the execution
part shall be increased proportionately. of the will or born after the death of the testator, shall annul the
institution of heir; but the devises and legacies shall be valid
Proportional Increased insofar as they are not inofficious.
Increase Shares
A 1/4 6M 6/21 x 3M 857,142.86 6, 857,142.86 If the omitted compulsory heirs should die before the testator,
B 1/2 12M 12/21 x 3M 1,714,285.71 13,714,285.71 the institution shall be effectual, without prejudice to the right of
C 1/8 3M 3/21 x 3M 428,571.43 3, 428,571.43 representation.
TOTAL 21M
TOTAL 3,000,000 24,000,000 Preterition
BALANCE 3M
It is the omission of one, some or all of the compulsory heirs in the
direct line, whether living at the same time of the execution of the will
Thus, to get proportionally increased shares, add the proportional
or born after the death of the testator, which, as a consequence, shall
increase to the share entitled to each heir.
annul the institution of heir; but the devisees and legacies shall be valid
insofar as they are not inofficious. THERE MUST BE A WILL.
ARTICLE 853
If each of the instituted heirs has been given an aliquot part of the
inheritance, and the parts together exceed the whole inheritance, REQUISITES OF PRETERITION
or the whole free portion, as the case may be shall be reduced
proportionally. 1. Omission

Effect if Institution Exceeds Estate It is immaterial whether the omission be intended or inadvertent, as
There shall be a proportionate reduction: long as there is an omission. As long as the heir is not expressly
excluded. There is no mentioned that “I hereby disinherit A.” Thus it
I hereby institute as heirs to my entire estate – to A as to the one-fourth; does not matter whether it be deliberate or inadvertent.
to B as to the one-half; and to C as to the one-thirds.
2. Omission is total and complete
Suppose with estate at the value of P12,000,000 but sharing is:
 A is instituted to 1/4 It does not mean that the heir is not mentioned in the will, there is then
 B is instituted to 1/2 preterition, it must also be considered that:
 C in instituted to 1/3
Looking at the sharing, it shall cover more than estate and then it (a) The heir is not instituted in the will as heir or is not given
exceed the whole inheritance or the whole free portion, the will shall anything in the will either by legacy or device – he is not
then be reduced proportionately. mentioned in the distribution – not given anything in will.

Estate: 24,000,000 Ex.: “I have five children, A,B,C, D and E. E is the most beautiful of all of
them.” But in the distribution E was not given anything. There is then
First, determine share each instituted heir is entitled to according preterition in this case.
to the sharing provided by law:
Ex.: If the estate is valued at P10,000,000 but A is given only P1,000 or
A 1/4 1/4 x 24,000,000 6,000,000 even P1 – there is no preterition because there is no omission in this
B 1/2 1/2 x 24,000,000 12,000,000 case. But, A is entitled to completion – give the balance of the legitime.
C 1/3 1/3 x 24,000,000 8,000,000
TOTAL 26,000,000 (b) The omitted heir is also not a donee or a recipient of any
EXCESS 2,000,000 property from the testator during the lifetime of the testator.

Note that there is still an excess of P2,000,000. Article 853 instructs
that the parts together exceed the whole inheritance or the
whole free portion then as the case may be it shall then be reduced
proportionately.
Note again that the P2,000,000 exceeds that the whole inheritance,
but this reduction should not be reckoned on the sharing but on
the proportional reduction which is shown by the following
computation:
Meaning, for there to be preterition, the omitted heir in the will should
not have received anything that can be considered as an advance to
his or her legitime.
Thus, even if heirs is omitted in the will but during the lifetime of the
testator, the testator donated to the heir a property, the heir is then not
preterited. The donation shall be collated – meaning, it shall be
brought back to the estate considered as an advance.

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN d
 Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 99

But this is not limited to donation – this includes those advances made
to the heir during the lifetime of testator which could be considered as
an advance to the legitime of heir. Such as bail, payment of debts or
presumptive legitimes in freak succession and even expenditures in the
election can even be considered.
A, B, C and D are legitimate children of the testator. E is the best
friend of the testator and estate is valued at P10,000,000
Situation 1: Preterition

Omission that Results in Preterition, Summary
(1) Person is not an heir, not a devisee, not a legatee, thus
receives nothing in the will.
(2) No donation inter vivos was given to him.
(3) There is nothing which could be inherited by intestacy
because the whole estate was distributed by will.
(4) There is no prior delivery of presumptive legitimes.
3. The will must dispose of the entire estate
I hereby leave my entire estate of P10,000,000 to my children A,
B and C and my best friend E.
Here it can be seen that D has been preterited, D being a legitimate
child which is a compulsory heir in the direct line.
What is the effect? The institution of A,B,C and E is annulled. The estate
shall then be distributed by legal succession. By the annulment of the
institution of heirs there are no more institutions that can be given
effect. Thus, the estate shall be distributed by intestacy.

Meaning, there is nothing left to be distributed by legal succession – Legal Heirs: A, B, C and D (4 legal heirs)
there is no partial intestacy. Because if there are still part of the estate Value of Estate: P10,000,000
that is subject to succession, there would be no preterition because Computation:
there are still properties which the heir can participate or completed. 𝑃10,000,000
𝑃2,500,000
There is difference between completion of legitime from preterition. 4 ℎ𝑒𝑖𝑟𝑠

4. The omission must be compulsory heirs in the direct line Distribution:

Groups of Compulsory Heirs A B C D

1. Legitimate children and descendants, with respect to their
legitime parents and ascendants;
2. In default of the foregoing, legitimate parents and
ascendants, with respect to their legitime children and
descendants;
3. The surviving spouse;
4. Other illegitimate children.
Note: While all might be considered as compulsory heirs, but for the
purposes of preterition – only those compulsory heirs in the direct line
shall be considered – the ascendants and descendants.
Who Can be Preterited?
Compulsory heirs in the direct line, specifically ascendants and
descendants, ad infinitum and adopted children. The spouse cannot
claim preterition because she is not a relative in the direct line (Acain v.
Court of Appeals 155 SCRA 100). What happens if the spouse is
omitted? Then the spouse would just be given his or her legitime. There
would be no preterition. Therefore there is no annulment of the
institution of the heirs.
5. The preterited heir must survive or must not have
predeceased the testator
P2,500,000 P2,500,000 P2,500,000 P2,500,00
___
How about E? – E is not a legal heir but a friend. He can only inherit if
only there is a will but the will is annulled because of preterition.
__________
Situation 2: Preterition but there is a Legacy or Devise
I hereby institute as my sole heirs to my entire estate of
P10,000,000, my children A, B and C and I am giving P1,000,000
to my best friend E.
Here, once again, D is omitted and there shall be preterition. But, note
that E here receives a legacy. And again, the effect of preterition is that
it shall result to the annulment of the institution of heirs but the
legacies and devises shall remain valid as long as not inofficious.
Inofficious means that the legacy or device would not impair here the
legitime of the compulsory heirs. Meaning, they can be covered in the
free portion. Thus, determine first is the legacy or device is inofficious:
Total Value of Estate: P10,000,000

General Rule: Even if the testator omitted in his will a compulsory heir 𝑃10,000,000
𝑃5,000,000
in the direct line such a son or daughter but that omitted son dies 2
ahead of the testator there is no longer a preterition because the son
never inherited and heir. Legitime: P5,000,000 Free Portion: P5,000,000

Exception: If the preterited heir left a representative. Such as when Is the P1,000,000 legacy to E inofficious?
the son had also his own child, then the grandchild has the right of No. Because the P1,000,000 can be covered under the free portion of
representation. Thus, the omitted heir should not predecease the P5,000,000. Meaning, it did not exceed the free portion and did not
testator and even if he predeceases the testator, he should not leave a encroach the legitimes.
representative, then otherwise there would still be preterition.
How about the balance?
EFFECTS OF PRETERITION
FIRST METHOD
Effect of Preterition
The institution of heirs is annulled. Hence, estate shall be distributed in Distribution of Legitime:
accordance with the rules on legal succession. But the devisees and the
𝑃5,000,000 𝐿𝑒𝑔𝑖𝑡𝑖𝑚𝑒
legacies shall be valid insofar as they are not inofficious. If the omitted 𝑃1,250,000 𝑒𝑎𝑐ℎ
compulsory heir should die before the testator, the institution shall be 4 𝑙𝑒𝑔𝑎𝑙 ℎ𝑒𝑖𝑟𝑠
effectual, without prejudice to the right of representation.

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN d
 Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 100

Distribution of Free Portion: Therefore, whatever was received by the compulsory heirs during the
lifetime of testator shall be considered as advances to their legitimes.
𝑃5,000,000 𝑃1,000,000 𝐿𝑒𝑔𝑎𝑐𝑦 𝑡𝑜 𝐸 The donation to D was P2 Million which was over and above legitime.

The legacy is still valid because it is not affected by the annulment of Distribution of Free Portion:
the institution of heirs and it is not inofficious:
Note that, the legitime that D is entitled is only P1.5M, but he received a
𝑃4,000,000 𝑅𝑒𝑚𝑎𝑖𝑛𝑖𝑛𝑔 𝐹𝑟𝑒𝑒 𝑃𝑜𝑟𝑡𝑖𝑜𝑛 donation of P2M. Meaning there was excess. D need not return the P.5M
𝑃1,000,000 𝑒𝑎𝑐ℎ but it would not be considered as being charged to the free portion.
4 𝑙𝑒𝑔𝑎𝑙 ℎ𝑒𝑖𝑟𝑠

Distribution shall be (in millions): 𝑃6,000,000 𝑃500,000 𝑒𝑥𝑐𝑒𝑠𝑠 𝑃5,500,000

In addition, note that free portion will be divided to four instituted

Legitime Free Portion Total
heirs because there is no preterition (because D received donation).
A 1.25 1 2.25 Thus, the institution of A, B, C and best friend E is not annulled because
B 1.25 1 2.25 there is no preterition.
C 1.25 1 2.25
D 1.25 1 2.25 𝑃5,500,000
𝑃1,375,000 𝑝𝑒𝑟 𝑖𝑛𝑠𝑡𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟
E [N/A] 1 1 4 𝑖𝑛𝑠𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟𝑠
Total 5 5 10

SECOND METHOD Distribution shall be as follows (in millions)

Legitime Free Portion Total

𝑃10𝑀 𝑉𝑎𝑙𝑢𝑒 𝑜𝑓 𝐸𝑠𝑡𝑎𝑡𝑒 𝑃1𝑀 𝐿𝑒𝑔𝑎𝑐𝑦 𝑜𝑓 𝐸 𝑃9𝑀 A 1.5 1.375 2.875
B 1.5 1.375 2.875
𝑃9,000,000 C 1.5 1.375 2.875
𝑃2,250,000 𝑒𝑎𝑐ℎ
4 D 1.5 0.5 2
E [N/A] 1.375 1.375
Total 6 6 12
The second situation would emphasize the importance if one is an heir,
legatee or devisee, because if there is preterition, even if one is not a Therefore, upon the distribution of the remaining estate of P10M, D will
compulsory heir but a legatee or devisee he or she can still receive as not actually receive in the distribution as he already receive the P2M
long as these are not inofficious. But if one is an instituted heir but not ahead as donation (considered as an advance to his legitime). He is
a compulsory heir and there is preterition, nothing shall be received. then deemed considered to receive his legitime (P1.5M) and the excess
was even charged to the free portion. There is no preterition.
Situation 3: Donation Inter Vivos and More than Legitime
Situation 4: Donation Inter Vivos Less than Legitime
I hereby institute to my entire estate as my sole heirs A, B, c and
my best friend E.” I hereby institute to my entire estate as my sole heirs A, B, c and
my best friend E.”
But, D actually received a donation of P2,000,000 during the lifetime
of testator. Is D preterited? But, D actually received a donation of P500,000 during the lifetime of
testator. Is D preterited?
Here, there is no preterition because the omitted heir already received
donation valued at P2,000,000. What will happen is that there shall be Here, again there is no preterition, remember that even if P1 is given,
a computation for the Net Estate. there is no preterition, but what will happen is that there must first be
computation of the net estate:
In computing the net estate, there shall be a collation, the donation
shall be included in the calculation of the net estate (also deducting the
liabilities or debts the estate may be made liable). In computing the net estate collate the donation made:

𝑃10𝑀 𝑉𝑎𝑙𝑢𝑒 𝑜𝑓 𝐸𝑠𝑡𝑎𝑡𝑒 𝑃. 5𝑀 𝐷𝑜𝑛𝑎𝑡𝑖𝑜𝑛 𝑡𝑜 𝐷 𝑃10.5𝑀

In computing the net estate collate the donation made:
After getting the net estate, determine the legitime and the free portion
𝑃10𝑀 𝑉𝑎𝑙𝑢𝑒 𝑜𝑓 𝐸𝑠𝑡𝑎𝑡𝑒 𝑃2𝑀 𝐷𝑜𝑛𝑎𝑡𝑖𝑜𝑛 𝑡𝑜 𝐷 𝑃12𝑀 of the net estate:

After getting the net estate, determine the legitime and the free portion 𝑃10,500,000
of the net estate: 𝑃5,250,000
2
𝑃12,000,000 Distribution of Legitime:
𝑃6,000,000
2
𝑃5,250,000
𝑃1,312,500 𝑝𝑒𝑟 𝑐ℎ𝑖𝑙𝑑
The institution: “I hereby institute to my entire estate as my sole heirs A, 4 𝑙𝑒𝑔𝑎𝑙 ℎ𝑒𝑖𝑟𝑠
B, C and my best friend E covers the free portion.
Thus, each child shall receive P1,312,500 each. But, note that D already
Distribution of Legitime: received P500,000 as donation (considered as advances) then shall be
deducted from the legitime. D shall then receive only:
𝑃6,000,000
𝑃1,500,000 𝑝𝑒𝑟 𝑐ℎ𝑖𝑙𝑑
4 𝑙𝑒𝑔𝑎𝑙 ℎ𝑒𝑖𝑟𝑠 𝑃1,312,500 𝑃500,000 𝑃812,500

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN d
 Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 101

Distribution of Free Portion: Distribution of Legitime:

𝑃5,250,000 𝑃5,000,000
𝑃1,312,500 𝑝𝑒𝑟 𝑖𝑛𝑠𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟 𝑃1,250,000 𝑝𝑒𝑟 𝑐𝑜𝑚𝑝𝑢𝑠𝑙𝑜𝑟𝑦 ℎ𝑒𝑖𝑟
4 𝑖𝑛𝑠𝑡𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟𝑠 4 𝑙𝑒𝑔𝑎𝑙 ℎ𝑒𝑖𝑟𝑠

Free portion will be divided to four instituted heirs because there is no Note that D already received P5,000 by way of legacy it shall be
preterition (because D received donation). Thus, the institution of A, B, deducted from the legitime. D shall then receive only:
C and best friend E is not annulled because there is no preterition.
𝑃1,250,000 𝑃5,000 𝑃1,245,000
Distribution of Estate: Distribution shall be as follows
Distribution of Free Portion:
Legitime Free Portion Total
A 1, 312,500 1,312,500 2,625,000 𝑃5,000,000
𝑃1,250,000 𝑝𝑒𝑟 𝑖𝑛𝑠𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟
B 1,312,500 1,312,500 2,625,000 4 𝑖𝑛𝑠𝑡𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟𝑠
C 1,312,500 1,312,500 2,625,000
Free portion will be divided to four instituted heirs because there is no
D 1,312,500 [N/A] 1,312,500 preterition (because D received legacy). Thus, the institution of A, B, C
E [N/A] 1,312,500 1,312,500 and best friend E is not annulled because there is no preterition.
Total 5,250,000 5,250,000 10,500,000
Distribution (in millions):
But note, the distribution above is based on the net estate, thus the
total should be P10.5M. However, if the distribution is to be reckoned: Legitime Free Portion Total
A 1.25 1.25 2.5
Received at the Time of Death B 1.25 1.25 2.5
Considering that P500K was already given to D as donation (advance), C 1.25 1.25 2.5
then what remains in the estate is P10M. D 1.25 [N/A] 1.25
(1.245+0.05)
Thus, in the amount received at the time of death, the reduced legitime E [N/A] 1.25 1.25
of D (P812,500) shall be given because the P500K that was already
Total 5 5 10
given as donation is considered as an advance to his legitime and
therefore is deducted therefrom:
Note, here that what was given was a legacy not a donation inter vivos
and thus there is no need to collate (that is why the total value is still
Legitime Free Portion Total
10M not 10.05M).
A 1, 312,500 1,312,500 2,625,000
B 1,312,500 1,312,500 2,625,000
Caution: Be careful with the wordings of the will – I hereby leave my
C 1,312,500 1,312,500 2,625,000 entire estate to the following persons xxx and the balance equally
D 812,500 [N/A] 812,500 among xxx. – the above computation was applied.
E [N/A] 1,312,500 1,312,500
Total 4,750,000 5,250,000 10,000,000 Situation 6: In Case of Legacy but No “My Entire Estate”

Other Advances that can be Considered and Collated
Donation are not only those that can be considered as advances to the
legitime, others are:
1. If parents paid the debts
2. If parents paid for the bail, in case of imprisonment
3. Running in election, the expenses are paid for.
4. Option collation, such as when the parents decide to charge
expenses (like unwarranted length of postgraduate study).
Situation 5: In Case of Legacy and to the “My Entire Estate”
I hereby leave my entire estate worth P10,000,000 to the following
persons:
I hereby leave a legacy of P5,000 to D and institute as my heirs A,
B, C and my best friend E.
or
I hereby leave P5,000 to D and I hereby institute as heirs A,B, C
and my best friend E.
Always remember that institution refers only to the free portion.
Looking at the above, those mentioned are treated only as disposing
the free portion.
Determine the legitime and the free portion:

D – P5,000 𝑃10,000,000
𝑃5,000,000
2
The remaining will be distributed equally to A, B, C and E.
Distribution of Legitime:
Here, there is no donation inter vivos but D is mentioned in the will.
There is no preterition because there is a legacy of P5,000. 𝑃5,000,000
𝑃1,250,000 𝑝𝑒𝑟 𝑐𝑜𝑚𝑝𝑢𝑠𝑙𝑜𝑟𝑦 ℎ𝑒𝑖𝑟
4 𝑙𝑒𝑔𝑎𝑙 ℎ𝑒𝑖𝑟𝑠
The testator said that the balance shall be distributed equally among A,
B, C and E. But clearly, P5,000 is way below the legitime of D. The Distribution of Free Portion:
computation shall be as follows: Now, unlike the previous example (Situation 5), there is no phrase that
states “My entire estate”, therefore we limit such to the free portion.
Determine the legitime and the free portion:
Here, D received the P5,000 as legacy and others are instituted heirs.
𝑃10,000,000
𝑃5,000,000 𝑃5,000,000 𝑃5,000 𝑃4,995,000
2

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN d
 Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 102

Under the Principle of Equality, since the Testator did not specify the b. Exception: If the testator expresses in his will that
sharing of the instituted heirs A,B, C and best friend . They shall receive he is disposing his entire estate.
in equal shares of the amount.
B. As to the phrasing:
a. “I hereby institute as sole heirs to my entire estate”
𝑃4,995,000
𝑃1,248,750 𝑝𝑒𝑟 𝑖𝑛𝑠𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟 – there can preterition
4 𝑖𝑛𝑠𝑡𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟𝑠 b. “I hereby institute as sole heirs A,B,C and best
friend E” – only refers to the free portion.

Free portion will be divided to four instituted heirs because there is no Situation 8: Part of Estate Disposed but More Than Legitime
preterition (because D received legacy). Thus, the institution of A, B, C and
best friend E is not annulled because there is no preterition. I hereby leave P8,000,000 to A,B, and best friend E

Distribution: or

Legitime Free Portion Total I hereby leave P8,000,000 in equal shares to A,B and best friend E
A 1,250,000 1,248,750 2,498,750
B 1,250,000 1,248,750 2,498,750 Suppose the following:
C 1,250,000 1,248,750 2,498,750 1. Testator has A,B and C as legitimate children
D 1,250,000 5,000 1,255,000 2. Testator as E as best friend
[N/A] 1,248,750 1,248,750 3. The estate is valued at P12,000,000
E
Total 5 5 10
Meaning that out of P12,000,000 of the Total Estate:
 Disposed in will – P8,000,000
Situation 7: No Donation, No Legacy and Not “My Entire Estate”
 Not disposed in will – P4,000,000
I hereby institute as my heirs A,B,C and my best friend E.
There is then a need to determine the legitimes of each child in order
or
to see whether the distribution is inofficious.
I hereby institute as my sole heirs A,B,C and my best friend E.
Determine the legitime and the free portion:
There is NO PRETERITION. Remember the basic rule that institution
shall only be applied to the free portion, one need not institute the 𝑃12,000,000
heirs to their legitimes. (There is no statement “to my entire estate”). 𝑃6,000,000
2
Determine the legitime and the free portion: Distribution of Legitime:

𝑃10,000,000 𝑃6,000,000
𝑃5,000,000 𝑃2,000,000 𝑝𝑒𝑟 𝑐𝑜𝑚𝑝𝑢𝑠𝑙𝑜𝑟𝑦 ℎ𝑒𝑖𝑟
2 3 𝑙𝑒𝑔𝑎𝑙 ℎ𝑒𝑖𝑟𝑠
Distribution of Legitime: Then looking at the undisposed portion of the estate, which is P4M, it
can be seen that the supposed legitime of C was not impaired and in fact
𝑃5,000,000 there is still an excess of P2M.
𝑃1,250,000 𝑝𝑒𝑟 𝑐𝑜𝑚𝑝𝑢𝑠𝑙𝑜𝑟𝑦 ℎ𝑒𝑖𝑟
4 𝑙𝑒𝑔𝑎𝑙 ℎ𝑒𝑖𝑟𝑠
This then shows that C is not preterited and he is entitled to be given
Distribution of Free Portion: his legitime. He can participate in the portion not disposed of by will. So,
each child is entitled to P2M. C’s legitime can be satisfied out from the
𝑃5,000,000 undisposed portion.
𝑃1,250,000 𝑝𝑒𝑟 𝑖𝑛𝑠𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟
4 𝑖𝑛𝑠𝑡𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟𝑠
𝑃4,000,000 𝑃2,000,000 𝐶 𝑠 𝑙𝑒𝑔𝑖𝑡𝑖𝑚𝑒 𝑃2,000,000

Then the remaining P2M that is undisposed by will shall be distributed

Distribution (in millions): by legal succession to all the legal heirs:

Legitime Free Portion Total 𝑃2,000,000

𝑃670,000 𝑝𝑒𝑟 𝑙𝑒𝑔𝑎𝑙 ℎ𝑒𝑖𝑟
A 1.25 1.25 2.5 3 𝑙𝑒𝑔𝑎𝑙 ℎ𝑒𝑖𝑟𝑠
B 1.25 1.25 2.5
1.25 1.25 2.5 [NOTE: Should be P666,666.67]
C
D 1.25 [N/A] 1.25
Distribution in Accordance to the Will:
E [N/A] 1.25 1.25
Total 5 5 10 𝑃8,000,000
𝑃2,670,000 𝑝𝑒𝑟 𝑖𝑛𝑠𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟
3 𝑖𝑛𝑠𝑡𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟𝑠
But, if the testator said “I hereby instituted A,B,C and my best friend E
as my sole heirs to my ENTIRE ESTATE” then there is preterition. There [NOTE: Should be P2,666,666.67]
is a need to ascertain then in the will what the testator is disposing.
Now referring back to their legitimes, A, B and C are entitled to P2M as
Rules in Case of Institution of Heirs legitime. Now, under the will, what was given to them, especially A and
B is P2.67M which is more than their legitime.
A. As to the portion referred
a. Institution of heirs refers to the free portion as a
general rule, for it is the essence of institution.

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN d
 Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 103

Distribution (in millions) Hacienda Medalla Milagrosa) shall exclusively be adjudicated to the wife in
second marriage of Julian L. Teves and his four minor children.
Legitime Disposed Excess Total
Don Julian and the two children of the first marriage (Emilio and Josefa) had
A (2) 2.67* 0.67 3.33
executed a Deed of Assignment of Assets in favor of JLT Agro transferring
B (2) 2.67* 0.67 3.33 ownership over Lot 63.
C 2 - 0.67 2.67
E - 2.67 - 2.67 Later on, Milagros Donio (second wife) and her four children executed a
Total 2 8 2 12 Deed of Extrajudicial Partition of Real Estate allotting Lot 63 to her and
two children. Antonio Balansag and Hilaria Cadayday bought Lot 63 from
NOTE: As long as legitimes are not impaired, provisions are effected. Milgaros Donio.

Situation 9: Part of Estate Disposed but Less Than Legitime
I hereby leave P11,000,000 to A,B, and best friend E
Suppose the following:
1. Testator has A,B and C as legitimate children
2. Testator as E as best friend
3. The estate is valued at P12,000,000
There is no preterition because the will did not dispose of the entire
estate, thus, C can still participate by legal succession. But, it is not
enough to satisfy the legitime of C. As illustrated in Situation 8, each
of them is entitled to a legitime of 2M.
Then there is a need to Complete the Legitime of C. The P1M that is
for C must be given. It shall be taken from the disposition, which was
P11M, now, what the testator can dispose by will is only P10M.
I hereby leave P11M to A, B No need to apply to the free
and my best friend E. portion.
I hereby institute A, B and my Need to apply to the free portion.
best friend E as my heirs.
Points to Remember
1. Identify the legitimes, determine based on the legitimes if
the portion distributed by the will is enough. If enough, then
take the share of the omitted heir from the undisposed
portion and if there is excess of the undisposed portion, then
it shall be distributed by legal succession (Situation 8)
2. If the portion distributed is not enough to satisfy the
legitime of the omitted heir, then reduce the estate disposed
in the will to complete the legitime of the omitted heir who
was not preterited, and then all others can be given effect.
(Situation 9).
Balasag and Cadayday as buyers, filed a case against JLT Agro seeking for
the declaration of nullity and cancellation of TCT of JLT Agro.
RTC dismissed complaint ruling that the property no longer formed part of
the estate of Julian Teves as it was earlier assigned to JLT Agro and no longer
proper subject of extrajudicial partition, and they could not have sold it.
CA reversed RTC ruling that nobody in his right judgment would preterit his
legal heirs by simply executing a document like the Supplement Deed
which practically covers all properties which Don Julian had reserved in
favor of his heirs from the second marriage.
This shows that the CA found that the assignment made by Don Julian is a
prohibited preterition of Don Julian’s heirs from the second marriage.
Issue: Was there preterition in this case? – No.
(1) Concept of Preterition. - Manresa defines preterition as the omission of
the heir 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. It is the total
omission of a compulsory heir in the direct line from inheritance.
It consists in the silence of the testator with regard to a compulsory heir,
omitting him in the testament, either by not mentioning him at all, or by
not giving him anything in the hereditary property but without expressly
disinheriting him, even if he is mentioned in the will in the latter case. But
there is no preterition where the testator allotted to a descendant a share
less than the legitime, since there was no total omission of a forced heir.
(2) There Was No Will. - Don Julian did not execute a will since what he
resorted to was a partition inter vivos of his properties, as evidenced by the
court approved Compromise Agreement. Thus, it is premature if not
irrelevant to speak of preterition prior to the death of Don Julian in the
absence of a will depriving a legal heir of his legitime. Besides, there are
other properties which the heirs from the second marriage could inherit
from Don Julian upon his death. A couple of provisions in the Compromise
Agreement are indicative of Don Julian’s desire along this line.

JLT AGRO v. BALANSAG
GR 141882, March 11, 2005
Facts: Don Teves contracted two marriages. First with Antonia Baena and
had two children. And after Antonia died, Don Teves married Milagros
Donio and they had four children.
The issue revolves around a parcel of land Lot No. 63 originally registered in
the name of the conjugal partnership of Don Julian Teves and Antonia.
When Antonia died the land was involved in an action for partition and
there was a compromise agreement.
On that compromise agreement as approved by CFI, the land was declared
as property owned in common by Don Julian and the two children of the
first marriage – it remained undivided during the lifetime of Don Julian. The
two children were given properties at the Bais Cadastral, but remainder of
properties including Lot 63 remained with Don Julian.
In the Compromise Agreement, it was stated that:
In the event of death of Julian Teves xxx In other words, the properties now
selected and adjudicated to Julian L. Teves (not including his share in the
Hence, the total omission from inheritance of Don Julian’s heirs from the
second marriage, a requirement for preterition to exist, is hardly imaginable
as it is unfounded.
ACAIN v. IAC
GR 72706, October 27, 1987, En Banc
Facts: This involved the will of the late Nemesio Acain. Constantino Acain
filed with RTC Cebu a petition for probate of the will on the premise that
Nemesio left a will which Constantino and his siblings were instituted as
heirs. The will contained a disposition of the testator’s property where the
properties shall be given to Nemesio’s brother Segundo – but in case
Segundo dies ahead of Nemesio, it shall be given to Segundo’s heirs
(Constantino and his siblings).
Indeed Segundo predeceased Nemesio – thus Constantino and siblings
claim to be heirs. This was opposed by Virginia Fernandez who is a legally
adopted daughter of the testator and widow Rosa Diongson. The petition
was sought to be dismissed because the widow and adopted daughter
have been preterited.
Issue: Was there preterition? – Yes.

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN d
 Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 104
(1) Concept of preterition. – Under Article 854, preterition consists in the
omission in the testator's will of the forced heirs or anyone of them either
because they are not mentioned therein, or, though mentioned, they are
neither instituted as heirs nor are expressly disinherited.
(2) No preterition as to the widow. - Insofar as the widow is concerned,
Article 854 of the Civil Code may not apply as she does not ascend or
descend (direct line) from the testator, although she is a compulsory heir.
Stated otherwise, even if the surviving spouse is a compulsory heir, there is
no preterition even if she is omitted from the inheritance, for she is not in
the direct line.
(3) Preterition of adopted child. - However, the same thing cannot be said
of the other respondent Virginia A. Fernandez, whose legal adoption by the
testator has not been questioned by petitioner
Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare
Code, adoption gives to the adopted person the same rights and duties as
if he were a legitimate child of the adopter and makes the adopted person
a legal heir of the adopter. It cannot be denied that she has been totally
omitted and preterited in the will of the testator and that both adopted
child and the widow were deprived of at least their legitime. Neither can it
be denied that they were not expressly disinherited. Hence, this is a clear
case of preterition of the legally adopted child.
(4) Effect of preterition. - Pretention annuls the institution of an heir and
annulment throws open to intestate succession the entire inheritance. The
only provisions which do not result in intestacy are the legacies and devises
made in the will for they should stand valid and respected, except insofar as
the legitimes are concerned.
The universal institution of petitioner together with his brothers and sisters
to the entire inheritance of the testator results in totally abrogating the will
because the nullification of such institution of universal heirs-without any
other testamentary disposition in the will-amounts to a declaration that
nothing at all was written. Carefully worded and in clear terms, Article 854
of the Civil Code offers no leeway for inferential interpretation.
No legacies nor devises having been provided in the will the whole property
of the deceased has been left by universal title to petitioner and his brothers
and sisters. The effect of annulling the "Institution of heirs will be,
necessarily, the opening of a total intestacy except that proper legacies and
devises must, as already stated above, be respected.
(5) Constantino lost legal standing; not an heir anymore. – [Note:
Constantino was the son of the testator’s brother]. While initially
Constantino might have the personality to pursue to probate proceedings
but because intestacy have occurred due to the preterition of the adopted
child – then Constantino is in effect not an heir of the testator (because
preterition annuls the institution of heirs). He has no legal standing to
petition for the probate of the will.
HEIRS OF POLICRONIO v. HEIRS OF LIBERATO URETA
GR 165748, September 14, 2011
Facts: Policronio and Liberato are children of Alfonso Ureta, who was very
well during his lifetime. Policronio, being the eldest child who failed to finish
schooling worked on his father’s lands.
In a meeting with his four children, Alfonso was suggested to in order that
his inheritance taxes be reduced, he should make it appear that he had sold
some of his lands to his children. Thus, one of the deeds of sale covering the
disputed property was executed in favor of Policronio covering 6 parcels
of land. All except one of these lands were tenanted, the tenants however
turned over he produce not to Policronio but to Alfonso. When Alfonso died
produce was turned over to Liberato as administration of Alfonso’s estate.
Liberato and Policronio died. The heirs of Alfonso executed a Deed of Extra
Judicial Partition covering all the lands of Alfonso, including those which
are covered in the Deeds executed to reduce inheritance taxes.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
The eldest son of Policronio, Conrado, signed the extrajudicial partition in
behalf of his siblings. Here, the Heirs of Policronio found that there was a tax
declaration in the name of Policronio. Believing that these lands are
deemed excluded from the extra-judicial partition, they filed a Complaint
for Declaration of Ownership, Recovery of Possession, Annulment of
Documents, Partition, and Damages against the rest of the Heirs of Alfonso.
But here the RTC dismissed the case finding that the Deed was only made
or taxation purposes as there was no valid consideration and the sale was
then absolutely simulated.
Here, the heirs of Policronio argue that the absence of them in partition or
lack of the authority of their representative, results at the very least in their
preterition and not of the invalidity of the entire deed of partition. They
argued that, if there was actual preterition, the extrajudicial partition was
not voidable but under Article 1104, a partition made with preterition of
any of the compulsory heirs shall not be rescinded but the heirs shall be
proportionately obliged to pay the share of the person omitted.
It is to be emphasized that Conrado was authorized by his siblings to sign
the extra-judicial partition in their behalf.
Issue: Was there preterition? – No.
Held: (1) Heirs of Policronio gave their consent. – The posited theory on
preterition is no longer viable. It has already been determined that the Heirs
of Policronio gave their consent to the Deed of Extra-Judicial Partition and
they have not been excluded from it. Nonetheless, even granting that the
Heirs of Policronio were denied their lawful participation in the partition,
the argument of the Heirs of Alfonso would still fail.
(2) There Was No Will. - Preterition has been defined as the total omission
of a compulsory heir from the inheritance. It consists in the silence of the
testator with regard to a compulsory heir, omitting him in the testament,
either by not mentioning him at all, or by not giving him anything in the
hereditary property but without expressly disinheriting him, even if he is
mentioned in the will in the latter case. Preterition is thus a concept of
testamentary succession and requires a will. In the case at bench, there is
no will involved. Therefore, preterition cannot apply.
A perusal of the Deed of Extra-judicial Partition would reveal that all the
heirs and children of Alfonso Ureta were represented therein; that nobody
was left out; that all of them received as much as the others as their shares;
that it distributed all the properties of Alfonso Ureta except a portion of
parcel 29 containing which was expressly reserved; that Alfonso Ureta, at
the time of his death, left no debts; that the heirs of Policronio Ureta, Sr.
were represented by Conrado B. Ureta; all the parties signed the document,
was witnessed and duly acknowledged before Notary Public Adolfo M.
Iligan of Kalibo, Aklan; that the document expressly stipulated that the heirs
to whom some of the properties were transferred before for taxation
purposes or their children, expressly recognize and acknowledge as a fact
that the properties were transferred only for the purpose of effective
administration and development convenience in the payment of taxes and,
therefore, all instruments conveying or effecting the transfer of said
properties are null and void from the beginning.
Testator Did Not Know Pregnancy
Suppose that the testator made a will wherein he disposed of his entire
estate, he gave all his properties to his children and he died later on.
However, it was discovered that the wife of the testator was pregnant,
but the testator did not know of this fact that his wife was pregnant
when he made the will and provided for the distribution of his estate in
the will. Will this be considered a preterition?
Yes. There will still be preterition because who was omitted
was a child (provided that it be born later alive subject to the conditions
of Article 40 and 41) of the testator who is clearly a compulsory heir in
the direct line as provided for under Article 854. However, this would
not apply if the child was conceived after the testator died, for the
obvious reasons, that it was not his child.
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ARTICLE 855 [2] Legitime

The share of a child or descendant omitted in a will must first be A compulsory heir succeeds to his or her legitime as it is what is
taken from the part of the estate not disposed of by the will, if any; reserved to by the law for them. In fact, there is no need to institute the
if that is not sufficient so much as may be necessary must be taken compulsory heirs in the wills as to their legitime as it is provided by law.
proportionally from the shares of the other compulsory heirs.

Omitted Heir, Where Share Taken General Rule: When the compulsory heir predecease, repudiate or had
If the child had not received anything by virtue of a donation, or by will, become incapacitated, they transmit nothing to their heirs.
still if anything is left of the inheritance which he may get by intestacy
there is no preterition. Again, if what is to him to him by intestacy is less Exception: When the Right of Representation applies.
than his legitime, he is entitled to a Completion of Legitime.
When there is a right of When there is no right of
[For illustration, see Situations 8 and 9 under Article 854]. representation: representation:
1. Predecease 1. Repudiation, note
Thus, it has been said that it is of the essence of preterition that there 2. Incapacity that in repudiation, it
be complete forgetfulness, not in the will necessarily, but in inheritance 3. Disinheritance includes even the
– testate, intestate or mixed. legitime

Ordinarily, in a true case of preterition (such as when there is no part of
the estate left undisposed by will) Article 855 would not apply and the
procedure is just to divide the property intestate. And if there would be
allowable legacies or devisees (which are not inofficious), the
procedure is almost the same, just deduct the legacies and devises and
divided the remainder as an intestacy.
In testamentary succession, there is the concept of free portion,
meaning that in the institution of heirs and the distribution of those
stated in the testamentary provisions is held to cover only the free
portion and not the legitime, unless expressly stated.
Therefore, if the compulsory heir dies with respect to the legitime
(because there is no right of representation to the free portion), then
one has to check if the heir has a right to representation – if there is a
right to representation, then the representative steps into the shoes of
the original heir.
Illustration: Testator T has three children, A, B and D. A also has a child,
M. While B has N and O as children. D also has three children X, Y and Z.
TESTATOR

It is a rule that the legitime should not be subject to conditions,

burdens, liens or charges other than those expressly provided for. A B D
Usually, the legitime comprises half of the net estate of the testator
while the other half comprises of the free portion.
M N O X Y Z
ARTICLE 856
A voluntary heir who dies before the testator transmit nothing to
his heirs. ______________________________________________________
A compulsory heir who dies before the testator, a person Estate Value: P24,000,000
incapacitated to succeed, and one who renounces the
Legitime: P12,000,000
inheritance, shall transmit no right to his own heirs except in
cases expressly provided for in this Code.
Free Portion: P12,000,000

Voluntary Heirs and Compulsory Heirs to the Free Portion I hereby institute as my sole heirs A, B and my best friend C.

[1] Free Portion

In the free portion, the instituted heirs can be the:
(a) Voluntary heir (a compulsory heir can be one)
(b) Legatee
(c) Devisee
In case any of them die, they shall transmit nothing to their heirs. This
is because they are only voluntary heirs and it is a rule that:
THERE IS NO RIGHT OF REPRESENTATION IN THE FREE PORTION
Therefore, when the voluntary heir dies, his heirs cannot lay claim to
the share that was instituted to the voluntary heir when he or she died,
this because there is no right of representation in the free portion.
Also remember that a compulsory heir can be a voluntary heir,
therefore if a compulsory heir is also instituted as a voluntary heir as to
the free portion, when that compulsory heir dies his rights in the free
portion as a voluntary heir shall not be transmitted to his heirs, but as
to the his share in the legitime, it shall be transmitted because there is
a right of representation when it comes to the legitime. But again, if
what is involved is the free portion, then if the voluntary heir, legatee
or devisee predeceases testator, they transmit nothing to their heirs.
Situation 1:
A, B and D are all alive upon the death of the testator.
Rule of Proximity
In succession, we apply the rule on proximity, the nearer relatives would
exclude those who are far. Thus, even under the law on legitimes, even
if the enumerated compulsory heirs include the children and their
descendants, it does not follow that if the testator had children and the
descendants, all of them will inherit. Only those most proximate to the
testator, which are his children shall inherit.
In this case, then if A, B, or D neither predeceased, incapacitated or had
repudiated their inheritance, then A, B and D shall receive their part of
the legitime (P4,000,000) and as to the free portion, since there is no
preterition, then A and B would also receive their part of free portion.
Per Capita
Given the situation above (absent predecease, incapacity, repudiation),
then the rule of proximity effectively excludes others and gives the
right to the nearest relatives. And this shall be in their own right or per
capita. They shall inherit in their own right.

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN d
 Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 106
Situation 2:
A died ahead of the testator.
If an Heir Predecease the Testator
Always remember that in testamentary succession, there is no right of
representation as to the free portion. Here, it can be seen that indeed A
predeceased the testator. Article 856 would then instruct that a
compulsory heir who dies before the testator transmit no right to his
own heirs – but this is in respect to the share in the free portion.
Meaning, as to the legitime, there is still right to representation, thus,
as to the legitime (P4,000,000), M would have right of representation
being the heir of A with respect to the legitime.
But with respect to A’s institution as a voluntary heir in the free portion
(which could have also been P4,000,000), this was not transmitted to
M by reason that A predeceased the testator thus A transmits nothing
as to the free portion.
Similarly if:
B died ahead of the testator.
Then, N and O shall have the right of representation with respect to B’s
legitime (P4,000,000) meaning it shall then be shared by N and O in the
amount of P2,000,000 each.
Per Stirpes
As illustrated, the succession to the legitime of the compulsory heir by
the heirs of the compulsory heir is by right of representation also
known as per stirpes meaning they only succeed to what the person
represented would be entitled to receive (opposed to per capita).
Situation 3:
A and B died ahead of the testator.
Rule of Priority
In succession, if it turns out that the instituted heir is not qualified to
inherit by reason that he predeceases the testator, becomes
disqualified or incapacitated to inherit or repudiates his inheritance,
then the Order of Priority shall apply:
Order of Priority: I S R A I
1. Institution
2. Substitution
3. Representation
4. Accretion
5. Intestacy
Given the situation that A and B died ahead of testator with respect to
the free portion, we ask the following questions:
1. What happens to the institution? – No effect, predecease.
2. Is there a substitute? – None.
3. Can there be representation? – No. Representation is not
allowed with respect to the free portion.
4. Is there accretion? – Yes.
Accretion will take place. Meaning, that the co-heirs, would then
receive the whole share that should have been given, as provided in
the order of priority where accretion made by made to him. In short,
accretion happens when the share of an heir will accrue to others.
Thus given the example above, if A would die ahead of the testator, and
with respect to A’s share in the free portion, given that representation
does not apply to the free portion, then it shall accrue to his co-heirs B
and C. And if both A and B dies, then it shall accrue to C.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
Situation 4:
A repudiates his inheritance.
Effect of Repudiation of Inheritance
Unlike the other grounds, repudiation of the inheritance would usually
include the forfeiture of the legitime. That is why if there is repudiation,
there is no right to representation either to the free portion or to the
legitime. That is why an heir repudiates, he transmits nothing at all to
heirs, either the free portion or the legitime.
Therefore, follow the order of priority in distributing the estate of the
decedent. Thus, if A repudiates his inheritance, M is entitled to nothing
either from the free portion nor to the legitime.
But consider that:
A, B and D repudiates their inheritance.
If that is what happens, if all heirs to the legitime would repudiate their
inheritance, this does not mean that there will no longer be succession,
especially as to the legitimes.
What will happen is that M, N and O, as well as X, Y and Z, being the
ones next in line following the rule on proximity, they will inherit in
their own rights or Per Capita meaning there will be 6 legal heirs as to
the legitime (P2,000,000 each).
Section 3
SUBSTITUTION OF HEIRS Arts. 857-870
ARTICLE 857
Substitution is the appointment of another heir so that he may
enter into the inheritance in default of the heir originally
substituted.
Substitution of Heirs
Substitution of heirs only applies in testamentary succession which as
to be provided for by the testator. This happens when one of the heirs
cannot receive his share, and if there is a substitute then it shall then be
followed (order of priority). The substitute enters into the inheritance
in default of the heir originally instituted.
General Classifications
1. Direct Substitution
Article 857 provides for the definition of direct substitution.
In default of the heir originally instituted or if the original heir
cannot inherit, then the substitute will take his place. An
example would be “in lieu of A, then B.” There is:
a. Simple or Common Substitution
b. Brief or Compendious Substitutions
c. Reciprocal Substitution
2. Indirect Substitution
When all heirs are instituted one after the other. This is when
both inherit but one after the other. There is only one kind of
indirect substitution under the Civil Code – Fideicommissary
Substitution.
Note that the definition of substitution under Article 857 is inaccurate
or incomplete because it only covers direct substitution, substitution
can also refer to indirect substitution.
Thus, the more comprehensive definition would be:
Substitution is the appointment of another heir so that he may enter
into the into the inheritance in the default of the heir originally
instituted or after such heir.
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ARTICLE 858 2. Compendious Substitution – when one takes the place of

Substitution of heirs may be: two or more
(1) Simple or common;
(2) Brief or compendious; Inheritance: P100,000
(3) Reciprocal; or
(4) Fideicommissary. X (original heir)
P50,000
Different Kinds of Substitution A (substitute)
1. Direct Substitution P100,000
a. Simple or Common (Article 859) Y (original heir)
b. Brief or Compendious (Article 860) P50,000
c. Reciprocal (Article 861)
2. Indirect Substitution
a. Fideicommissary (Article 863-869) In case of default of all the original heirs that it is to be substituted, then
A shall be the substitute. Meaning, if in case only X predeceases, or
Substitute, Heir of Testator becomes incapacitated or repudiates, there is yet no compendious
The substitute is the heir of the testator and not of the original heir. substitution to the vacant portion.
Thus, the determination of his qualifications based on his qualification
to inherit shall be based on his relationship with the testator. What will happen first is that the share of X will first go to Y, Y being
the co-heir of X, this is because there is a compendious substitution.
ARTICLE 859 When all of them (X and Y) becomes incapacitated, predecease or
The testator may designate one or more persons to substitute the repudiation then A as the compendious substitute receive the P100K.
heir or heirs instituted in case such heir or heirs should die
before him, or should not wish, or should be incapacitated to ARTICLE 861
accept the inheritance. If heirs instituted in unequal shares should be reciprocally
substituted, the substitute shall acquire the share of the heir who
A simple substitution, without a statement of the cases to which dies, renounces, or is incapacitated, unless it clearly appears that
it refers, shall comprise the three mentioned in the preceding the intention of the testator was otherwise. If there are more than
paragraph, unless the testator has otherwise provided. one substitute, they shall have the same share in the substitution
as in the institution.
Simple or Common Substitution (also known as Vulgar)
The first paragraph talks about express substitution in case of Reciprocal Substitution
1. Predecease This kind of substitution, in essence, is when the instituted heirs are also
2. Renunciation or repudiation made the substitutes of each other. For example, if A and B are
3. Incapacity instituted as heirs to the free portion of P200,000 and are reciprocal
substitutes then what will happen that:
The second paragraph states that if there is no statement as to the (a) In case A predecease, incapacitated or repudiates, then B
cause of the substitution then it will cover the three unless testator has shall receive as substitute A’s share of P100,000, receiving in
provided otherwise. total of P200,000.
(b) In case B predecease, incapacitated or repudiates, then A
ARTICLE 860 shall receive as substitute B’s share of P100,000, receiving in
Two or more persons may be substituted for one; and one person total of P200,000.
for two or more heirs.
More than One Reciprocal Substitute
Brief or Compendious Substitutions
They shall have the same share in the substitution
1. Brief Substitution – when two or more take the place of one as in the institution.

Ex.: A is the original heir and in case of predecease, incapacity or of the

IN EQUAL SHARES:
repudiation of A, then X and Y shall inherit.
A, B and C are instituted heirs to my estate (valued at P24,000,000)
Inheritance: P100,000
and are reciprocal substitutes of each other.
X (substitute)
P50,000
Originally, A, B and C are entitled to P8M each. Then for example, if A
A (original heir) defaults, the share of A will go to B and C. The latter two will get their
P100,000 share as instituted heirs (P8M each) and they shall have same
proportionate share as to the A’s share meaning they shall also receive
Y (substitute) P4M each from A’s share under the principle of equality. They shall then
P50,000 receive a total of P12M each (B and C).

Here there is one heir and two substitutes. If A cannot inherit in case
when A predeceases, becomes incapacitated or repudiates, then X and
Y will succeed here; they will have equal shares of P50,000 each.
However, the testator could also specify how must like: “A is the original
heir instituted, if A defaults, X and Y will be the substitute: X to the ¼
and Y to the ¾ as default.
IN UNEQUAL SHARES:
I hereby institute to my estate: A, B and C. The sharing will be ½ to A,
¼ to B and ¼ to C. They shall also be reciprocally the substitutes of
each other.
For this example, there is a need to consider the same proportionate
share in the substitution as in the substitution. “Same share” must mean
as same proportionate share and should not be interpreted literally.

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN d
 Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 108

First, determine the following shares that each heir should have been Requisites for Fideicommissary Substitution
entitled to:
1. There must be an express mention that it is a
A 1/2 1/4 x 24,000,000 12,000,000 fideicommissary substitution
B 1/4 1/4 x 24,000,000 6,000,000
C 1/4 1/4 x 24,000,000 6,000,000 Manners in Constituting a Fideicommissary Substitution
TOTAL 24,000,000 (a) The word “fideicommissary” must be used; or
(b) Even if it is not denominated expressly a such, but there is an
Suppose that B predeceased the testator, then given that there are express imposition on the part of the first heir to preserve
reciprocal substitutes, then share of A shall be received in substitution and transmit to the second heir.
by B and C.
Thus it must appear in the letters of the will that there is an express
Thus, the following computation shall be made considering that B constitution of a fideicommissary substitution.
cannot inherit anymore due to his predecease and given that there is a
substitution then the shares shall be increased by proportionate to 2. There must be a first heir who shall the obligation to
their institution. After determining the share by substitution then it
preserve and transmit
shall be added to share by institution to determine to the total share.
First Heir or the Fiduciary
Share by Increased
(Fiducario, Heredero or Trustee)
Substitution Shares
A 1/2 12M 12/18 x 6M 4,000,000 16,000,000
The first heir is the one who was the obligation to preserve
B 1/4 (6M) Predeceased, cannot inherit
and transmit the inheritance to the second here. With this obligation,
C 1/4 6M 6/18 x 6M 2,000,000 8,000,000
the first heir cannot alienate, dispose of or destroy the property – he
TOTAL 18M
TOTAL 6,000,000 24,000,000 use only given the right to use, thus he can be considered to a certain
BALANCE 6M
extent as that of a usufructuary. The first heir can possess, enjoy, but
he cannot dispose nor destroy because he has to transmit it unimpaired
ARTICLE 862 to the second heir.
The substitute shall be subject to the same charges and
conditions imposed upon the instituted heir, unless the testator
Usufructuary Fiduciary in Fideicommissary
has expressly provided to the contrary, or the charges or
conditions are personally applicable only to the heir instituted. in a Usufruct Substitution
There is a bond requirement There is no bond requirement
Charges on Conditions in Substitution The usufructuary is not entitled The fiduciary can make
General Rule: If the substitute inherits, he must fulfill the conditions to refund for the expenses allowable deduction for the
imposed on the original heir. expenses as provided in 865.

Exceptions:
1. Testator expressly provided the contrary
2. Charges or conditions are personally applicable only to the
heir instituted (e.g. personal qualifications, bar exam).
Thus, for example if the condition was “to pass the bar exam” but the
substitute is already a lawyer the condition imposed on the institution
could not be made to apply to the substitution.
While the first heir may also be considered as a “trustee” in a certain
sense, but the main difference is that a “trustee” in express trusts has
no right to enjoy the property, while the fiduciary can.
3. There must be a second heir
Second Heir or the Fideicommissary
(Fideicomisario, Beneficiary or Cestui Que Trust)

FIDEICOMISSARY SUBSTITUTION
ARTICLE 863
A fideicommissary substitution by virtue of which the fiduciary
or first heir instituted is entrusted with the obligation to preserve
and to transmit to a second heir the whole or part of the
inheritance, shall be valid and shall take effect, provided such
substitution does not go beyond one degree from the heir
originally instituted, and provided further, that the fiduciary or
first heir and the second heir are living at the time of the death of
the testator.
Fideicommissary Substitution
A fideicommissary substitution or also known as indirect substitution is
that by virtue of which a testator institutes a first heir and charges him
to preserve and transmit the whole or part of the inheritance later on to
a second heir.
Ex.: “I hereby give to A ½ of my estate. Upon the death of A, that same
inheritance of A will now be enjoyed by B; but A cannot dispose of the
inheritance because upon his death the same property shall go
unimpaired to B.” Therefore it is important to note that there is an
obligation on the part of the first heir to preserve and transmit.
The second heir shall then be the one who shall receive the
property from the fiduciary and ins considered that have acquired the
right to full ownership as the second heir does not have the obligation
to preserve and transmit unlike the first heir.
4. The relationship between the first heir and the second
heir must not be beyond one degree
One Degree Means One Generation
This means that the substitute may be the parent or child of the first
heir – no other person can be then the fideicommissary. Thus, the
relationship shall be counted from the first heir or fiduciary.
(a) If the parent is the first heir, the second heir is the child
(b) If the child is the first heir, the second heir is the parent
This interpretation of one degree is congruent with the fact that the
purpose of fideicommissary substitution is to maintain the prosperity
and prestige of one family.
Not Applicable to Juridical Persons
With this interpretation, where one degree means one generation,
there can be no fideicommissary substitution between juridical
persons.

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN d
 Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 109
5. Both the first heir and the second heir must be living or
at least conceived at the time of death of the testator
Civil Personality
This to reduce as much as possible the number of years the property
will have to be entailed. For if the second heir were still not even
conceived at the time the testator dies, a long time may elapse.
Furthermore, the second heir himself inherits from the testator and
one cannot inherit unless he be alive or at least conceived subject to
the conditions under Articles 40 and 41. Clearly, a non-conceived child
has no juridical capacity and cannot therefore be given any legal right.
An Apparent Substitution that is Actually an Institution
PCIB v. ESCOLIN
GR L-27896, March 29, 1974
Facts: An American citizen from Texas, Linnie Jane Hodges, died in the
Philippines leaving certain properties, both real and personal, in our
country. In her will, she made her husband, Mr. Hodges, her only heir. She
likewise stated in the will that upon her husband’s demise, the undisposed
properties from her estate would be given equally among her own brothers
and sisters. Some five years later, Mr. Hodges, also a citizen of Texas, died.
The administrator of the estate of Mr. Hodges, the PCIB, claims that the
designation of the brothers and sisters of Mrs. Hodges was an attempted
substitution, but cannot be given effect because it is not a simple nor a
vulgar nor a fideicommissary substitution, and that under American law, the
estate of Mrs. Hodges consists of 1/4 of the total conjugal estate.
Issues: Is the designation of Mrs. Hodges’ brothers and sisters valid? – Yes.
Held: (1) Not a Simple Substitution. - The designation of the brothers and
sisters of Mrs. Hodges is not a valid substitution (not a simple or vulgar
substitution because the will does not say that said relatives would inherit
if Mr. Hodges would predecease, be incapacitated, or should repudiate the
inheritance;
(2) Not a Fideicommissary Substitution. – It is also not a fideicommissary
substitution for Mr. Hodges was not obliged to preserve and transmit said
properties to the relatives of Mrs. Hodges).
(3) Institution with a Resolutory Condition for Mr. Hodges. - But this does
not mean that no effect should be given to their designation, for the truth
is that they were also instituted to said remaining properties. The institution
of Mr. Hodges partakes of a resolutory condition, this is really a resolutory
term, because Mr. Hodges would surely die, sooner or later that is,
ownership of the inherited properties would end at his death (that is, while
he was free, as owner, to dispose of the properties inter vivos, he was not
free to do so mortis causa).
(4) Institution with a Suspensive Condition. - The institution of Mrs.
Hodges’ brothers and sisters is on the other hand an institution subject to a
suspensive condition (this is really a suspensive term), their inheritance
having become vested at the time of Mrs. Hodges’ death, but only operative
upon the death of Mr. Hodges.
ARTICLE 864
A fideicommissary substitution can never burden the legitime.
Policy on Legitimes
The legitime is reserved by law to the compulsory heir
(a) Without any burden
(b) Without any condition
(c) Without any charge
(d) Without any substitution at all.
If this would be allowed, then the testator would easily circumvent the
law on legitimes and there would be possibility of conditions that
would in effect deny that the compulsory heir to his or her legitime.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
Two Exceptions on Legitimes
1. Reserva Truncal (Article 891)
2. Prohibition to Partition, not more than 20 years (Article 1083)
Therefore, it is understood that a fideicommissary substitution only
applies to the free portion.
ARTICLE 865
Every fideicommissary substitution must be expressly made in
order that it may be valid.
The fiduciary shall be obliged to deliver the inheritance to the
second heir, without other deductions than those which arise
from legitimate expenses, credits and improvements, save in the
case where the testator has provided otherwise.
Fideicommissary Substitution Must be Expressly Made
First paragraph of the Article — to be express, the words
“fideicommissary substitution” need not be given; it is sufficient that
there be the absolute obligation of delivering (and therefore of
preserving) the property to the second heir. (Art. 867, No. 1). Moreover,
if the intention is clear from the clauses of the will, same would be
sufficient to effect this kind of substitution. (G. de Perez v. Garchitorena,
54 Phil. 431). Upon the other hand, just because the words
“fideicommissary substitution” were used, it does not necessarily mean
that it takes effect for after all, the other essential requisites may be
absent.
Obligation to Deliver the Inheritance to the Second Heir
The first heir is obliged to deliver the inheritance toe second heir:
(a) If there is a period, then upon arrival of the period
(b) If there is none, then upon the death of the fiduciary.
Allowable Deductions
GR: Fiduciary shall be obliged to deliver the inheritance to the second
heir, without other deductions.
XPN: The following are allowable deductions, unless the testator has
provided otherwise:
1. Legitime expenses
2. Credits and
3. Improvements
ARTICLE 866
The second heir shall acquire a right to the succession from the
time of the testator's death, even though he should die before the
fiduciary. The right of the second heir shall pass to his heirs.
Rule in Case Fideicommissary Predecease the Fiduciary
It is a rule that the first heir and second heir are the heirs of the testator
thus what matters is that both of them shall be alive or at conceived at
the time of the testator’s death. The second heir acquires the right to
the succession at the time of the testator’s death even if the second heir
would die ahead of the fiduciary – in such case the rights of the second
heir shall pass to his heirs.
Ex.: Suppose that the testator provided in his will that upon his death A
as the first heir shall preserve and use the property for 20 years, and
shall transmit it to B after 20 years. If the testator died in 1990, then A
shall have the obligation to deliver in 2010 to B.
But supposing that B died in 1995, the fideicommissary substitution still
holds because Article 866 provides that in case B predeceases A, then
B’s heirs shall acquire the rights in the fideicommissary substitution.
In other words, while it is permissible for the second heir to predecease
the first heir, neither of the two must predecease the testator. Thus if
what happens is that B dies in 1989, ahead of the testator, B would
never have acquired any right to the property nor transmit the same.
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ARTICLE 867
The following shall not take effect:
(1) Fideicommissary substitutions which are not made in
an express manner, either by giving them this name, or
imposing upon the fiduciary the absolute obligation to
deliver the property to a second heir;
(2) Provisions which contain a perpetual prohibition to
alienate, and even a temporary one, beyond the limit
fixed in article 863;
(3) Those which impose upon the heir the charge of paying
to various persons successively, beyond the limit
prescribed in article 863, a certain income or pension;
(4) Those which leave to a person the whole or part of the
hereditary property in order that he may apply or
invest the same according to secret instructions
communicated to him by the testator.
Ineffective Stipulations
[1] Fideicommissary substitution not made express
Article 867, par. 1 provides that the fideicommissary substitutions must
be made in an express manner either by:
(a) Giving them the name of fideicommissary substitution; or
(b) Upon imposing the fiduciary the absolute obligation to
deliver the property to a second heir.
[2] Perpetual Prohibition to Alienate
Thus when A states that A cannot alienate, transfer, assign the property
as long as he lives – in effect a perpetual prohibition to alienate which
is considered an ineffective stipulation. But, considering Article 870, it
is submitted that the same would be valid, but only for 20 years.
Therefore, what is allowed is a temporary prohibition to alienate as
provided but not beyond 20 years under Article 870.
Fideicommissary Substitution and Article 867, par. 2 and 870
Even though is a prohibition to alienate for more than 20 years or to
impose a perpetual prohibition to alienate, this can be circumvented
by constituting a fideicommissary substitution because the first heir
shall be prohibited from disposing the property because the first heir
shall have the obligation to preserve and transmit unimpaired the
property to the second heir.
Temporary Prohibition Beyond the Limits of Article 863 (One Degree)
Now suppose that there was a prohibition to alienate, or it was limited
to 20 years (because testator provided a longer one), this prohibition
shall be made ineffective even if temporary if shown to be beyond
the limits of Article 863, or exceeding one degree.
Testator provided for a prohibition to alienate the property for
fifteen years from his death
2000 Testator Died A is bound to respect the prohibition to
alienate until 2015.
2005 A Died Supposing that A has an heir, B, the latter
is still bound to respect the prohibition
until 2015.
2010 B Died Supposing that B has an heir, C, the latter
is no longer bound to respect the
prohibition even though there are still 5
years until 2015.
This is because Article 867, par. 2 provides
that even a temporary prohibition shall be
ineffective if goes beyond one degree.
[3] Payment of Income or Pensions Beyond Limit of Article 863
This must be successively where A is made to pay B and in case B dies
then C and then D. B and C are proper as they are one degree apart. But
no longer to D because it would go beyond the limits of Article 863.
There is no problem if simultaneous as long as not successively.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
[4] Effect of Secret Instructions
This applies when a person is left a hereditary property in order for that
person to apply or invest the same according to secret instructions
that what communicated by him to the testator, which is ineffective.
(a) Not allowed: I hereby leave to A P1,000,000 and A may invest
it according to my instruction which I said to him in
confidence.
(b) Allowed: I hereby leave to A P1,000,000 and A may use it in
any way he deems proper (there is no secret instruction).
ARTICLE 868
The nullity of the fideicommissary substitution does not
prejudice the validity of the institution of the heirs first
designated; the fideicommissary clause shall simply be
considered as not written.
Effect of Nullity of Fideicommissary Substitution
If any of the requisites for a valid fideicommissary substitution are not
present – only the substitution is null and void but is does not prejudice
the validity of the institution of the heirs first designated. Thus, the
fideicommissary clause shall simply be considered as not written.
Ex.: Testator instituted A as first heir and B as second heir. If B would
predecease the testator, will A still inherit? Yes, as an instituted heir,
notwithstanding the invalidity of the fideicommissary substitution. The
clause on substitution is simply considered not written.
ARTICLE 869
A provision whereby the testator leaves to a person the whole or
part of the inheritance, and to another the usufruct, shall be valid.
If he gives the usufruct to various persons, not simultaneously,
but successively, the provisions of article 863 shall apply.
Grant of a Usufruct
There can be a separate institution of the naked title and to the
usufruct to two different heirs. This is valid, and if any of the two will die
then there shall be consolidation o the naked title and the ownership.
Prohibition to the Grant of Usufruct
1. Successive – If the grant of usufruct to various persons is
made successively (To A, and if A dies then to B and then to
C) then the limit under Article 863 would similarly apply –
must not be beyond one degree.
2. Simultaneously – This is allowed, even if there be more than
one degree as long as it is not successive.
ARTICLE 870
The dispositions of the testator declaring all or part of the estate
inalienable for more than twenty years are void.
Prohibition to Alienate for More than Twenty Years
If there is a prohibition to alienate, but no period is fixed regarding the
length of the prohibition, it is understood that the prohibition is good
for twenty years. The same is true if the prohibition is for “forever.”
Prohibition to Alienate Prohibition to Partition
Article 870 Article 1083
The testator can prohibit but not exceeding twenty (20) years.
Refers to the free portion Can also be made to apply to
the legitime
Alienation means the Partition refers to the division
disposition of the property to of the property among the
another person. heirs.
In Balanay, Jr. v. Martinez (64 SCRA 452), the claim to the specific
portions would ordinarily be void because of the shares of the spouses
being merely ideal; however since the husband consented, the defect
was cured and the husband is deemed to have renounced his share.
This is of course, without prejudice to the rights of the creditors.
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CONDITIONAL TESTAMENTARY
DISPOSITIONS AND Section 4
TESTAMENTARY DISPOSITIOS Arts. 871-885
WITH A TERM
ARTICLE 871
The institution of an heir may be made conditionally, or for a
certain purpose or cause.
Kinds of Institution
1. Pure and Simple Institution whether there is no condition,
period or charge at all. Upon the death of the testator, the
instituted heir immediately gets the inheritance subject to
the requirement of probate of will.
2. Conditional Substitution when the institution is made
subject to a condition (Arts. 871-877;883-884)
3. Institution Subject to a Term where there is a need to
observe a certain term or period. (Arts. 878, 880-881)
4. Modal Institution for certain purpose or cause (Articles 882-
882).
Condition is a future or uncertain event, or a future knowledge of a
past event, upon which the performance of the obligation depends. A
condition is characterized by futurity and uncertainty.
 A instituted B as an heir provided that B passes the bar exam.
 I will give to you P1M if A survived in the plane crash (this is
future knowledge of a past event).
Term is the day or time when an obligation becomes demandable or
terminates. A day certain is understood to be that which must
necessarily come although it may not be known to them. Applied
succession, it is the day or time when the effect of an institution of there
is to being. Term is characterized by futurity and certainty.
 A instituted B as heir, the effect to commence in 2005.
Modal Institution is when the institution of an heir is made for a
certain purpose or cause where the statement of the object of the
institution or the application of the property left by the testator or the
charge imposed upon him.
 A gave P300,000 so that the same may be spent for the
interment of C, the late husband of A.
Kinds of Conditions
1. Suspensive Condition – it is a condition which must be
fulfilled before the institution becomes effective.
Ex.: If A will pass the bar examinations.
2. Resolutory Condition – the fulfillment of that condition
extinguishes the condition.
Ex.: I hereby give to A the use of my house but
when he finds employment he has to leave.
3. Potestative Condition – dependent upon the sole will of
the heir. Even suspensive potestative condition is allowed in
succession. Unlike in Obligations and Contracts, suspensive
potestative condition is void because it would render the
obligation as illusory, but in Succession it would be fulfilled
because the heir would receive a benefit.
Ex.: I will give A half of my estate, if he cuts his hair.
4. Casual Condition – it is a condition that is dependent upon
chance.
5. Mixed Condition – it depends partly upon the will of the heir
and partly upon chance.
Ex.: Passing the bar exams is not necessarily pure
potestative nor of pure chance, it is both.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
MORENTE v. DE LA SANTA
9 Phil. 387, December 19, 1907
Facts: In her will, the wife provided as follows:
1. I hereby order that all real estate which may belong to me shall pass to my
husband, Gumersindo de la Santa;
2. That my said husband shall not leave my sisters after my death, and that he
shall not marry anyone; should my husband have children by anyone, he shall
not convey any portion of the property left by me, except the one-third part
thereof and the two-thirds remaining shall be and remain for my brother
Vicente or his children should he have any;
3. After my death, I direct my husband to dwell in the camarin in which the
bakery is located, which is one of the properties belonging to me.
Issue: If the husband marries again or leaves the sisters of the wife, or does
not live in the camarin, will he forfeit a part of the devise? – No.
Held: (1) Conditions Not to be Presumed. – The happening of these vents
should not be considered as the fulfillment of conditions which would
annul or revoke the devise. They were mere orders and there was no
condition or statement that if the should not comply with the wishes of the
testatrix he would lose the devise given him. The condition should have
been expressly provided. It was not expressly provided.
But, if the husband would have children with anyone it was expressly
provided that the forfeiture will take place, as to other grounds there was
no express mention of a condition. Conditions to affect the disposition must
appear in the language of the will and cannot be presumed.
ARTICLE 872
The testator cannot impose any charge, condition, or substitution
whatsoever upon the legitimes prescribed in this Code. Should he
do so, the same shall be considered as not imposed.
No Charge, Condition or Substitution on Legitimes
As stated earlier, the legitime is reserved by law to the compulsory
heirs, to allow conditions or burdens would allow a circumvention to
this policy. Thus, legitimes should not be made subject to any charge,
condition or substitution.
Valid Prohibitions
1. Reserva Truncal under Article 891 which is considered as a
burden on the legitime.
2. Prohibition on Partition under Article 1083 for not more
than twenty (20) years.
ARTICLE 873
Impossible conditions and those contrary to law or good customs
shall be considered as not imposed and shall in no manner
prejudice the heir, even if the testator should otherwise provide.
Impossible or Illegal Conditions
If the condition is impossible (make a dead man alive) or illegal (to kill
another) the condition is deemed void and unwritten but the
institution and testamentary disposition shall remain valid. But in
Obligations and Contracts:
Article 1183. Impossible conditions, those contrary to good customs
or public policy and those prohibited by law shall annul the obligation
which depends upon them.
If the obligation is divisible, that part thereof which is not affected by
the impossible or unlawful condition shall be valid. The condition not
to do an impossible thing shall be considered as not having been
agreed upon. (1116a)
If there is impossibility in the obligations the obligation is annulled
which is different from succession.
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The underlying reason for this difference is the liberality or of the
generosity of the testator. Thus, even if there is an impossible
condition attached to the institution, it is considered as not written. The
institution should not be given effect.
In obligation, there is no such underlying reason on the part of the
creditor. The condition in obligations is really attached to the
existence of the obligation. Thus, the obligation is annulled.
MICIANO v. BRIMO
50 Phil. 687, November 1, 1957
Facts: Joseph G. Brimo’s will provided that even if he was a Turk, still he
wanted his estate disposed of in accordance with Philippine laws; and that
should any of his legatees oppose this intention of his, his or her legacy
would be cancelled. Andre Brimo, one of the brothers of the deceased, di
not want that this disposition be made in accordance with Philippine laws,
and so he opposed to every move that would divide the estate in
accordance with Philippine laws.
Issue: Would Andre Brimo lose his legacy? – No.
Held: Condition was Against the Law. - Andre Brimo does not lose his
legacy, because the condition, namely, the disposal of the testator’s estate
in accordance with Philippine law, is against our laws (Article 16) which
provide that “intestate and testamentary succession, both with respect to
the order of succession and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be regulated by the
national law (Turkish law) of the person whose succession is under
consideration whatever may be the nature of the property and regardless
of the country wherein said property may be found.” (2nd paragraph, Art.
16). The condition being disregarded, the legacy becomes unconditional,
and therefore Andre Brimo is entitled to his legacy.
ARTICLE 874
An absolute condition not to contract a first or subsequent
marriage shall be considered as not written unless such
condition has been imposed on the widow or widower by the
deceased spouse, or by the latter's ascendants or descendants.
Nevertheless, the right of usufruct, or an allowance or some
personal prestation may be devised or bequeathed to any person
for the time during which he or she should remain unmarried or
in widowhood.
Condition Not To Marry
1. A condition which prohibits to contract a first marriage is hereby
considered absolutely void and may be disregarded or be considered
as not imposed.
2. A condition which prohibits remarriage
(a) GR: Void for being contrary to morality and public policy.
(b) XPNs: It is valid in the following instances:
a. When imposed on the widow or widower by the
deceased spouses;
Ex.: Thus, if H (husband) provides in his will: “I
hereby give to W (wife) this land subject to the
condition that she will not re-marry.” This is valid
for sentimental reasons.
b. When imposed on the widow or widower by the
ascendants or descendants of deceased spouse.
Ex.: For example the mother of the deceased
husband gave property to the wife by will, the
mother can actually impose the condition of not
to marry as it is considered valid for sentimental
reasons.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
ARTICLE 875
Any disposition made upon the condition that the heir shall make
some provision in his will in favor of the testator or of any other
person shall be void.
Disposition Captatoria
This kind of disposition is prohibition because it makes will bilateral.
Any disposition in the will should be given by the testator without any
expectation of receiving anything in return. The will is supposed to be
unilateral thus a disposition captatoria is void because is makes the
succession right contractual.
I hereby give to A my land in Jacinto St., Davao City on the condition that
A will also give me his land in Calinan Davao City, or to my child.
This is prohibited, but the disposition captatoria must be clear. This is
because a reciprocal will is valid as long as there the benefit that is
given to another is not made a condition for the institution.
ARTICLE 876
Any purely potestative condition imposed upon an heir must be
fulfilled by him as soon as he learns of the testator's death.
This rule shall not apply when the condition, already complied
with, cannot be fulfilled again.
Potestative Conditions, when Fulfilled
A potestative condition is one the fulfillment of which depends purely
on the heir. He must perform it personally and nobody else must do it
for him (Sanchez Roman).
GR: It must be fulfilled as soon as the heir learns about the testator’s
death. Thus, it is fulfilled after the death.
XPN: This rule shall not apply when the condition, already complied
with cannot be fulfilled again. (Such as when the cutting of hair was
already made during the lifetime of testator).
Manner of Compliance
The manner of compliance contemplated is substantial compliance
which shall be sufficient because it is a potestative condition. It is now
dependent upon the will of the heir, meaning, the testator had the
sufficient trust on the heir, legatee or devisee. By imposing the
potestative condition, the testator is delegating now to the heir,
legatee or devisee the manner in which they fulfill the condition.
ARTICLE 877
If the condition is casual or mixed, it shall be sufficient if it happen
or be fulfilled at any time before or after the death of the testator,
unless he has provided otherwise.
Should it have existed or should it have been fulfilled at the time
the will was executed and the testator was unaware thereof, it
shall be deemed as complied with.
If he had knowledge thereof, the condition shall be considered
fulfilled only when it is of such a nature that it can no longer exist
or be complied with again.
Mixed and Casual Conditions, When Fulfilled
Absent any express statement by the testator, then it shall be fulfilled:
1. Anytime before or after the death of the testator;
2. Should it exist or fulfilled at time will was executed and the
testator was unaware thereof, it shall be deemed complied;
3. Condition considered fulfilled if it is of such nature that it can
no longer be complied nor exist again (passing bar exam).
Strict Compliance is required because it could be inferred that the
testator did not have confidence in the heir and the bequest was made
subject to chance thus strict compliance is required.
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ARTICLE 878
A disposition with a suspensive term does not prevent the
instituted heir from acquiring his rights and transmitting them to
his heirs even before the arrival of the term.
Effect of Suspensive Term
A suspensive term is one that merely suspends the demandability of
the right. It is certain to happen. A suspensive condition however
suspends not only the demandability but also the acquisition of right.
I hereby leave to A ½ of my estate, but A
will get this 5 years upon my death.
Meaning, A has to wait for the arrival of the term before he can enter
into the inheritance. But if A dies before 5 years then it goes to A’s heirs
because a suspensive term does not prevent him from acquiring his
rights and transmitting them to his heirs, even before the arrival of the
terms – thus the institution remains.
Effect of a Suspensive Condition
If it is a suspensive condition, unless the condition is fulfilled the heir
does not get the inheritance. The effectivity itself of the institution is
made subject to the condition. Thus, if the condition does not happen
and the heir dies, nothing is transmitted unlike in a suspensive term.
ARTICLE 879
If the potestative condition imposed upon the heir is negative, or
consists in not doing or not giving something, he shall comply by
giving a security that he will not do or give that which has been
prohibited by the testator, and that in case of contravention he
will return whatever he may have received, together with its
fruits and interests.
Negative Potestative Conditions
This involves a negative potestative condition. Thus, when potestative
condition imposed upon their consists in not doing or not giving
something, then the law requires compliance with certain requisites
before the heir can receive the inheritance.
Inheritance, When Received
1. Immediately upon the death of the testator, but
2. Required for furnish Caucion Muciana or a bond as a
security that the heir will not do or give that which has been
prohibited by the testator.
Caucion Muciana
This is the bond or security referred to. The bond or security should be
given in favor of those who would get the property if the condition be
not complied with (like the intestate heirs or substitute). The favor
persons are naturally the ones who can demand the security.
 If the bond is not given then the estate shall be placed under
administration under Article 880.
If the heir violates the negative potestative condition:
1. He will forfeit whatever he may have received as inheritance;
2. Together with its fruits and interest;
3. The bond shall also for damages or what has been suffered.
ARTICLE 880
If the heir be instituted under a suspensive condition or term, the
estate shall be placed under administration until the condition is
fulfilled, or until it becomes certain that it cannot be fulfilled, or
until the arrival of the term.
The same shall be done if the heir does not give the security
required in the preceding article.
Administration Pending Suspensive condition or Term
This happens when the suspensive condition or term has not arrived
then the property is placed under administration.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
But if the conditions will never be fulfilled - such as when A dies before
taking the bar exam. The property will not be distributed among the
legal heirs of the testator unless there is institution, representation or
accretion that would apply (order of priority).
Instances when the estate is placed under administration:
1. If institution is subject to a negative potestative condition
and the caucion muciana has not been given.
a. Administration ends upon giving of the bond.
2. If there is a suspensive condition or term.
a. Administration ends upon
1. Arrival or fulfillment of the suspensive term
or condition;
2. If it appears or becomes certain that the
condition cannot be fulfilled.
ARTICLE 881
The appointment of the administrator of the estate mentioned in
the preceding article, as well as the manner of the administration
and the rights and obligations of the administrator shall be
governed by the Rules of Court.
Administration under the Rules of Court
1. Executor is the person who is appointed in the will to
administer the properties of the estate of the decedent, also
known as executrix, if female. It would require (1) court
appointment; and (2) posting of bond.
2. Administrator is the person who is appointed if there is no
executor appointed in the will or if in case of legal succession
the heirs cannot agree among themselves. There is also a
need to file for issuance of letters administration so that the
appointment will be effective.
ARTICLE 882
The statement of the object of the institution, or the application
of the property left by the testator, or the charge imposed by him,
shall not be considered as a condition unless it appears that such
was his intention.
That which has been left in this manner may be claimed at once
provided that the instituted heir or his heirs give security for
compliance with the wishes of the testator and for the return of
anything he or they may receive, together with its fruits and
interests, if he or they should disregard this obligation.
Modal Institution
A modal institution is a kind of institution where there is an object of
the institution, application of the property and imposition of a charge.
To reiterate, a modal institution occurs when any or all of the following
are stated in the institution:
1. Object of the institution – I institute A as my heir to give
him enough money to obtain a legal education.
2. Application of the property left by the testator – I hereby
leave to A such parcel of land so that he may use it as a farm.
3. Charge imposed by testator – A leaves to B his land planted
with coconuts and B has to give 5% of the produce to C.
RABADILLA v. COURT OF APPEALS
June 29, 2000
Facts: Aleja Belleza died but he instituted in her Codicil, Dr. Jorge Rabadilla
as a devisee to a large trace of land. The codicil contained the following:
[4th] Jorge Rabadilla shall have obligation every year to give Maria Marlina
100 piculs of sugar (75 export and 25 domestic) until Maria Marlina dies.
[5th] Should Jorge die, his heir to whom he shall give the said lot, shall have
the obligation to still give yearly the 100 piculs of sugar to Maria Marlina on
the month of December of each year.
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[6th] In the event that Jorge or his heirs sell, lease or mortgage the lot, the
buyer, lessee, mortgagee shall also have the obligation to respect and
deliver yearly 100 piculs of sugar to Maria Marlina until Maria dies.
Should the buyer, lessee or mortgagee of the lot did not respect the
command of the testatrix, Maria Malina shall immediately seize the lot
from the heir or latter’s heirs and turn it over to my near descendants and
then these descendants shall have such obligation to deliver the piculs of
sugar until Maria Marlina dies.
I further command in this Codicil that my heir and his heirs of this lot, that
they will obey and follow that should they decide to sell, lease, mortgage,
they cannot negotiate with others than my near descendants and my sister.
Pursuant to the same Codicil, the subject lot was transferred to Dr. Jorge,
but Dr. Jorge died and was survived by his children one of them being
Johnny Rabadilla (petitioner) et al.
Maria Marlina then brought a complaint against the heirs of Dr. Jorge
Rabadilla seeking to enforce the provisions of the subject Codicil alleging
that the defendant-heirs violated the conditions of the Codicil.
Issue 1: Is there simple substitution? – No.
Held: In simple substitutions, the second heir takes inheritance in default of
the first heir by reason of incapacity, predecease or renunciation. Here, the
provisions of the will do not provide that should Dr. Jorge Rabadilla default
due to predecease, incapacity or renunciation, the testatrix’s near
descendants would substitute him.
What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not
fulfill the conditions imposed in the Codicil, the property referred to shall
then be seized and turned over to the descendants of the Testatrix.
Issue 2: Is there fideicommissary substitution? – No.
Held: (1) Allowed to alienate and no obligation to preserve. - In a
fideicommissary substitution, the first heir is strictly mandated to preserve
the property and to transmit the same later to the second heir. Here in this
case, the instituted heir is in fact allowed to alienate property provided
that the negotiation is with the near descendants or the sister of the
testatrix. Thus, very important element of fideicommissary substitution is
lacking, the obligation clearly imposing upon the first heir preservation
and transmission to the second heir.
(2) Right to inherit is not definite. - In addition, the near descendants’ right
to inherit from the testatrix is not definite. The property will only pass to
them should Dr. Rabadilla or his heirs not fulfill obligation to deliver part of
the usufruct to private respondent.
(3) Requirement of not beyond one degree not followed. – Article 863 also
requires that the second heir or the fideicommissary to whom the property
is transmitted must not be beyond one degree from the fiduciary. A
fideicommissary substitution is, therefore, void if the first heir is not related
by first degree to the second heir. In this case, the near descendants are not
at all related to the instituted heir, Dr. Jorge Rabadilla.
Issue 3: Is there conditional institution? – No.
Held: In a conditional testamentary disposition, the condition must happen
or be fulfilled in order for the heir to be entitled to succeed the testator.
Here, the testatrix did not make Dr. Jorge’s inheritance and the effectivity of
his institution as a devisee dependent upon the performance of the
obligation on the said instituted heir and his successors-in-interest to
deliver 100 piculs of sugar to Maria Marlina during the lifetime of the latter.
Issue: Is there modal institution? – Yes.
Held: The institution of Dr. Jorge Rabadilla under the subject Codicil is in
the nature of a modal institution and therefore Article 882 and 883 applies.
The institution of an heir in the manner prescribed in Article 882 is known
in the law of succession as institucion sub modo or a modal institution.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
In a modal institution, the testator states:
[1] The object of the institution;
[2] The purpose or application of the property left by the testator;
[3] The charge imposed by the testator upon the heir
Here, the testatrix intended that subject property be inherited by Dr. Jorge
Rabadilla. It is likewise clearly worded that the testatrix imposed an
obligation on the said instituted heir and his successors-in-interest to
deliver 100 piculs of sugar to Maria Marlina during her lifetime.
However, the testatrix di not make the inheritance and the effectivity of his
institution as devisee dependent on the performance of the said
obligation. It is clear though, that should the obligation be not complied
with, the property shall be turned over to the testatrix’s near descendants.
The manner of institution of Dr. Jorge Rabadilla under the Codicil is
evidently modal in nature because it imposes a charge upon the instituted
heir, without, however, affecting the efficacy of such institution.
MODE CONDITION
A mode imposes an obligation On the other hand, in a
upon the heir or legatee but it conditional testamentary
does not affect the efficacy of disposition, the condition must
his rights to the succession. happen or be fulfilled in order
for the heir to be entitled to
succeed the testator.
The mode obligates but it does The condition suspends but
not suspend, to some extent it does not obligate.
can be considered as a
resolutory condition.
Rules in Case of Doubt
1. In favor of mode over condition. – The doubt shall then be
resolved in favor of a mode because mode is more in keeping
with the concept of liberality, although one has an obligation
but sure to receive the inheritance as long as obligation is
performed.
2. In favor of suggestion over mode. – In case there is doubt
whether the statement confers an obligation or suggestion
then in case of doubt it shall be treated as suggestions more
in keeping with the concept of liberality.
Ex.: “ I hereby leave this house to A, but he will have
to clean it every day.” But it did not state that the
failure to comply shall forfeit – considered as a
suggestion than a mode.
ARTICLE 883
When without the fault of the heir, an institution referred to in
the preceding article cannot take effect in the exact manner
stated by the testator, it shall be complied with in a manner most
analogous to and in conformity with his wishes.
If the person interested in the condition should prevent its
fulfillment, without the fault of the heir, the condition shall be
deemed to have been complied with.
Analogous or Substantial Compliance
If the mode cannot be complied with but without the fault of the heir,
the law allows that there can be substantial compliance which shall be
acceptable – a manner most analogous and in conformity with the
wishes of the testator.
Constructive Fulfillment
If person interested in the condition prevent fulfillment, without fault
of the heir, condition is deemed complied with. For example, the
condition to pass the bar exams but the legal heirs inflicts injuries on
the instituted heir as to make sure that he cannot take the bar exams at
the stipulated time. To prevent injustice being committed upon, the
heir is now deemed to be entitled to the estate because the condition
is deemed constructively fulfilled.
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ARTICLE 884
Conditions imposed by the testator upon the heirs shall be
governed by the rules established for conditional obligations in
all matters not provided for by this Section.
Suppletory Application from Conditional Obligations
The provisions on conditional obligations shall govern the matters not
provided for by this Section. In case of conflict, this section shall prevail.
For example, the annulment of the obligation in case of impossible
condition, the law on Succession prevails as to the effect. But in all other
matters which are not inconsistent, then the provisions under
conditions imposed in obligations may be applied.
ARTICLE 885
The designation of the day or time when the effects of the
institution of an heir shall commence or cease shall be valid.
In both cases, the legal heir shall be considered as called to the
succession until the arrival of the period or its expiration. But in
the first case he shall not enter into possession of the property
until after having given sufficient security, with the intervention
of the instituted heir.
Institutions with a Term
1. Suspensive Period – when the arrival of period is needed so
that the instituted heir can demand for his inheritance.
2. Resolutory Period – when the institution is immediately
effective but upon the arrival of the period, the institution
ceases, the heir will have to return what has been received
by reason of the institution.
In both cases, the legal heir shall be considered as called to the
succession until the arrival of the period or its expiration.
Institutions with a Suspensive Term
The property to be inherited will be placed under administration, and
would not be given the right to enter into the possession of the
property until after having given sufficient security.
This is because, in case upon the arrival of the period the heir had
already dissipated or destroyed the inheritance, then the security will
answer to the damages or loss suffered at the time of the arrival of the
period.
Institution with a Resolutory Term
If the resolutory term arrives, the property will not be placed for the
administration, but this time the property will be given to the legal
heirs unless in the order of priority there is a substitution,
representation, accretion and last is intestacy.
Section 3
LEGITIME Arts. 886-914
ARTICLE 886
Legitime is that part of the testator's property which he cannot
dispose of because the law has reserved it for certain heirs who
are, therefore, called compulsory heirs.
Legitime, Defined
Legitime is that part of the testator’s property which he cannot dispose
of because the law has reserved it for certain heirs who are, therefore,
called compulsory heirs.
The purpose of the legitime is to protect the children and the surviving
widow or widower from unjustified anger or thoughtlessness of the
other spouse. If there are no compulsory heirs, it follows that there can
be no legitime. Legitimate may be received from two aspects: (1) as a
right; and (2) as the property itself.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
The testator cannot deprive his compulsory heirs of their legitime,
except in cases expressly specified by law. Neither can he impose upon
the same any burden, encumbrance, condition or substitution of any
whatsoever, except:
1. The condition that the property will not be divided up until
20 years (Article 1083)
2. The concept of reserva troncal
Mechanisms Under the Law to Protect the Legitime
1. Collation – this happens when the testator during his
lifetime donated all or most of his properties. The law on
collation will insure that the legitime is preserved by
requiring that the values of those properties donated shall
be brought back and added back to the estate at the time of
the death.
2. Preterition – this also protects the legitime in a way that if a
compulsory heir is omitted in the will, the institution of heirs
shall be annulled. Thus, the estate shall be distributed by
legal succession.
3. Disinheritance – there has to be a valid ground for the
disinheritance as provided for by law. Otherwise, the share of
the invalidly disinherited heir is given.
4. Intestacy – the legitime of the heirs are still protected
because they shall not be given shares less than their
legitime as that in testamentary succession.
ARTICLE 887
The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to
their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children and
descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by
legal fiction;
(5) Other illegitimate children referred to in article 287.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded
by those in Nos. 1 and 2; neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly
proved.
The father or mother of illegitimate children of the three classes
mentioned, shall inherit from them in the manner and to the
extent established by this Code.
Compulsory Heirs
Under the Family Code, there are no more spurious children. Both the
natural and the spurious children are simply called Illegitimate
Children having exactly the same rights. Each of them gets half the
share of each legitime child and will be taken from the free portion after
the share of the surviving spouse has been satisfied.
“In all cases of illegitimate children,
their filiation must be duly proved”
The illegitimate child has then to prove that he or she is entitled to
inherited by proving one’s filiation. They have the burden to prove the
acknowledgment by the putative parent.
ILANO v. COURT OF APPEALS
GR 104376, February 23, 1994
In this regard, Article 287 of the Civil Code provides that illegitimate
children other than natural in accordance with Article 269 and other than
natural children by legal fiction are entitled to support and such
successional rights as are granted in the Civil Code. The Civil Code has
given these rights to them because the transgressions of social
conventions committed by the parents should not be visited upon
them. They were born with a social handicap and the law should help them
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surmount the disadvantages facing them through the misdeeds of their
parents. However, before Article 287 can be availed of, there must first be a
recognition of paternity either voluntarily or by court action. This arises
from the legal principle than an unrecognized spurious child like a natural
child has no right from his parents or to their estate because his rights
spring not from filiation or blood relationship but from his
acknowledgment by the parent. In other words, the rights of an
illegitimate child arose not because he was the true or real child of his
parents but because under the law, he had been recognized or
acknowledged as such a child.
Proving Acknowledgment of an Illegitimate Child
FAMILY CODE
ARTICLE 175
Illegitimate children may establish their illegitimate filiation in
the same way and on the same evidence as legitimate children.
The action must be brought within the same period specified in
Article 173, except when the action is based on the second
paragraph of Article 172, in which case the action may be brought
during the lifetime of the alleged parent.
ARTICLE 172
The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a
final judgment; or
(2) An admission of legitimate filiation in a public
document or a private handwritten instrument and
signed by the parent concerned;
In the absence of the foregoing evidence, the legitimate filiation
shall be proved by:
(1) The open and continuous possession of the status of a
legitimate child; or
(2) Any other means allowed by the Rules of Court and
special laws.
Proof of Filiation
1. Primary Evidence
a. Record of birth appearing in the Civil Register
b. Final judgment
c. Admission of (il)legitimate filiation in a public
document
d. Admission of (il)legitimate filiation in a private
handwritten instrument and signed by the parent
concerned
2. Secondary Evidence
a. The open and continuous possession of the status
of a legitimate child
b. Any other means allowed by the
i. Rules of Court and
ii. Special Laws
Means Allowed by the Rules of Court
1. Rule 130, Section 39 – Act or declaration about pedigree
2. Rule 130, Section 40 – Family reputation relating to
pedigree such as baptismal certificate, family bible,
inscriptions in monuments, tombstones and others.
3. DNA Evidence – allowed but considered as secondary
evidence.
It must be added that the illegitimate child is now also allowed to
establish his claimed filiation by "any other means allowed by the Rules
of Court and special laws," like his baptismal certificate, a judicial
admission, a family Bible in which his name has been entered, common
reputation respecting his pedigree, admission by silence, the
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
testimonies of witnesses, and other kinds of proof admissible under
Rule 130 of the Rules of Court (Uyguangco v. Court of Appeals, 1989).
UYGUANGCO v. COURT OF APPEALS
GR 76873, October 26, 1989
The issue before the Court is not the status of the private respondent, who
has been excluded from the family and inheritance by the petitioners. What
we are asked to decide is whether he should be allowed to prove that he is
an illegitimate child of his claimed father, who is already dead, in the
absence of the documentary evidence required by the Civil Code.
Facts: Apolinario Uyguangco died intestate in 1975, leaving his wife and
four legitimate children and considerable properties which they divided
among themselves. Graciano, claiming to be an illegitimate son of
Apolinario, and having been left out of the extrajudicial settlement of his
estate, he filed a Complaint for Partition against all the petitioners.
Graciano argued that he received support from his father while studying in
high school and was even assigned without objects as storekeeper of the
Uyguangco store.
During presentation of evidence, Graciano admitted that he had none of
the documents to show that he was the illegitimate son of Apolinario. The
petitioners moved for dismissal arguing that the secondary evidence could
not be used because he was already an adult when the alleged father died.
Here, Graciano argues that he has been in continuous possession of the
status of an illegitimate child which is considered as a secondary evidence
under the Family Code (which was applied in this case).
Issue: Is Graciano’s action barred? – Yes.
Article 175 applies. – The action must be brought if under the second
paragraph of Article 172 (secondary evidence), the action must be brought
during the lifetime of the alleged parent. It is clear that the private
respondent can no longer be allowed at this time to introduce evidence of
his open and continuous possession of the status of an illegitimate child or
prove his alleged filiation through any of the means allowed by the Rules of
Court or special laws. The simple reason is that Apolinario Uyguangco is
already dead and can no longer be heard on the claim of his alleged
sons’ illegitimate filiation.
In her Handbook on the Family Code of the Philippines, Justice Alicia
Sempio-Diy explains the rationale of the rule, thus: "It is a truism that unlike
legitimate children who are publicly recognized, illegitimate children are
usually begotten and raised in secrecy and without the legitimate family
being aware of their existence. Who then can be sure of their filiation but
the parents themselves? But suppose the child claiming to be the
illegitimate child of a certain person is not really the child of the latter? The
putative parent should thus be given the opportunity to affirm or deny the
child's filiation, and this, he or she cannot do if he or she is already dead."
BERNABE v. ALEJO
GR 140500, January 21, 2002
The right of seek recognition granted by the Civil Code to illegitimate
children who were still minors at the time the Family Code took effect
cannot be impaired or taken away. The minors have up to four years from
attaining majority age within which to file an action for recognition.
Facts: The late Ernesto Bernabe allegedly fathered a son with his secretary
of 23 years, Carolina Alejo. The son was born in September 18, 1981 named
Adrian Bernabe. Ernesto Bernabe died in August 13, 1993. In 1994,
Carolina, in behalf of Adrian, filed a complaint praying that Adrian be
declared an acknowledged illegitimate son of Fiscal Bernabe and that
he be given his share in the estate, which is being held by Ernestina, the sole
surviving heir.
However, the RTC dismissed the complaint, ruling that under the provisions
of the Family Code as well as in the case of Uyguangco v. Court of Appeals
the complaint is now barred.
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But the CA ruled that in the interest of justice, Adriano should be allowed
to prove that he was the illegitimate son of Fiscal Bernabe. Because the boy
was born in 1981, his rights are governed by Article 285 of the Civil Code
which allows an action for recognition to be filed within 4 years after the
child has attained the age of majority and the enactment of the Family Code
did not take away that right.
Here, Petitioner contends that Adriano through Carolina, is barred from
filing an action for recognition, because the Family Code supplanted the
Civil Code.
(1) Period to File Action for Recognition. – The Family Code provides that
an action for recognition of an illegitimate child must be brought within the
lifetime of the alleged parent. The Family Code makes no distinction on
whether the former was still a minor when the latter died. Thus, the putative
parent is given by the new Code a chance to dispute the claim, considering
that illegitimate children are usually begotten and raised in secrecy and
without the legitimate family being aware of their existence. The putative
parent should thus be given the opportunity to affirm or deny the child’s
filiation, and this, he or she cannot do if he or she is already dead.
(2) Family Code provides that Prior Vested Rights shall not be impaired. –
Article 256 provides that the Family Code shall not have retroactive effect
insofar as it does not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws. A vested right is defined as
one which is absolute, complete and unconditional, to the exercise of which
no obstacle exists, and which is immediate and perfect in itself and not
dependent upon a contingency. But here, it was contented that the filing of
an action for recognition is procedural in nature where no vested right may
attach to or arise from.
(3) Article 256 is a Substantive Law. – Article 256. It gives Adrian the right
to file his petition for recognition within 4 years from attaining majority age.
Therefore, the Family Code cannot impair or take Adrian’s right to file an
action for recognition, because that right had already vested prior to its
enactment.
ARTICLE 888
The legitime of legitimate children and descendants consists of
one‐half of the hereditary estate of the father and of the mother.
The latter may freely dispose of the remaining half, subject to the
rights of illegitimate children and of the surviving spouse as
hereinafter provided. (808a)
Classes of Compulsory Heirs
1. Primary Compulsory Heirs get their legitime even in the
presence of other primary compulsory heirs and even in the
presence of the secondary compulsory heirs.
2. Secondary Compulsory Heirs are those mentioned in No. 2
in Art. 887. They inherit only in the absence of No. 1. The
father or mother of illegitimate children is also a secondary
compulsory heir but only as provided for in Article 903.
Primary Compulsory Heirs Secondary Compulsory Heirs
[1] Legitimate children and their [1] Legitimate parents and
legitimate descendants; ascendants, they inherit only in
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
default of legitimate children
[2] Surviving spouse and their descendants;
[3] Illegitimate children and [2] Illegitimate parents (no
their descendants other ascendants) They inherit
only if there are no legitimate
or illegitimate children or
descendants.
Legitime of Legitimate Children and Descendants
Thus, suppose F had two legitimate children A and B. The legitime of A
and B is one-half of the hereditary estate. If the estate is worth
P1,000,000, the total legitime of A and B together is equal to P500,000.
The remaining P500,000 is called the free portion. This free portion is
however subject to the legitimes of the surviving spouse and the
illegitimate children if they exist. For convenience, it would be proper to
consider that part of the free portion left after deducting the legitimes
of the surviving spouse and the illegitimate children, if present, as the
free disposal, for it is really this part that can be given to strangers and
other people.
Formula
The formula for the legitime of a legitime child under the Family Code:
𝐸𝑠𝑡𝑎𝑡𝑒
𝐿𝑒𝑔𝑖𝑡𝑖𝑚𝑒 𝑜𝑓 𝐿𝑒𝑔𝑖𝑡𝑖𝑚𝑎𝑡𝑒 𝐶ℎ𝑖𝑙𝑑 2
𝑁𝑜. 𝑜𝑓 𝐿𝑒𝑔𝑖𝑡𝑖𝑚𝑎𝑡𝑒 𝐶ℎ𝑖𝑙𝑑𝑟𝑒𝑛
ARTICLE 889
The legitime of legitimate parents or ascendants consists of one‐
half of the hereditary estates of their children and descendants.
The children or descendants may freely dispose of the other half,
subject to the rights of illegitimate children and of the surviving
spouse as hereinafter provided.
Legitime of Legitimate Parents and Ascendants
Note that they are Secondary Compulsory Heirs and will only inherit
form the decedent in case of default of the legitimate children and their
descendants.
Suppose that C is the child of M and F. If C’s estate is P1,000,000, the
legitime of the parents taken together is equal to P500,000; hence, each
parent gets P250,000. The remaining P500,000 may be disposed of in
favor of strangers (in favor even of M and F), subject to the legitimes
and rights of illegitimate children and the surviving spouse, if present.
The remaining half would refer to the Free Portion.
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 TABLE OF LEGITIMES

Taken from Justice Paras Annotation on Succession

Legitimate Legitimate
RELATIVE Surviving Illegitimate Illegitimate
Children and Parents and
SURVIVING Spouse Children Parents
Descendants Ascendants
Legitimate
½ divided by the
Children
number of the X X X X
(Alone)
children
One Legitimate
Child and a
1/2 1/4 X X X
Surviving Spouse

Two or More
Legitimate
Children, Surviving
1/2 divided by Same as 1 1/2 of each
Spouse and X X
number Legitimate Child Legitimate Child
illegitimate
Children

Surviving Spouse,
Illegitimate
X 1/3 1/3 X X
Children

Legitimate Parents
or Ascendants,
Surviving Spouse,
X 1/8 1/4 1/2 X
Illegitimate
Children

Legitimate
Parents
X X X 1/2 X
(Alone)

Illegitimate
Children
X X 1/2 X X
(Alone)

Surviving
Spouse
X 1/2 or 1/3 or 1/2 X X X
(Alone)

Legitimate Parents
and Surviving
X 1/4 X 1/2 X
Spouse

Illegitimate
Parents
X X X X 1/2
(Alone)

Illegitimate
Parents and X 1/4 X X 1/4
Surviving Spouse
 ARTICLE 890 Legitime of the Surviving Spouse Concurring
The legitime reserved for the legitimate parents shall be divided With Legitimate Descendants
between them equally; if one of the parents should have died, the
whole shall pass to the survivor.
Estate Value P1,000,000
If the testator leaves neither father nor mother, but is survived by
Legitime: P500,000
ascendants of equal degree of the paternal and maternal lines, Free Portion: P500,000
the legitime shall be divided equally between both lines. If the
ascendants should be of different degrees, it shall pertain One Legitimate Child One-half (1/2) of the hereditary estate shall
entirely to the ones nearest in degree of either line. go to the legitimate child (P500,000)
Surviving Spouse
Division in the Ascending Direct Line One-fourth (1/4) to be taken from the free
portion (P250,000)

MGM MGF PGM PGF Free Disposal (remaining): P250,000

M F Two or More One-half (1/2) of the hereditary estate shall

Legitimate Children be divided among the legitimate children.
 P500,000 / No. of LC
Testator
Surviving Spouse
If there are four children, each will get
 P125,000 each for 4 LC

Estate Value: P12,000,000 Surviving spouse shall be entitled to a

Legitime: P6,000,000 Free Portion: P6,000,000 portion equal to the legitime of each of the
legitimate children or descendants.
 P125,000 (still taken from free
If M and F are alive The legitime shall be divided equally by the portion)
mother (M) and father (F). The grandparents
are excluded under the Rule on Proximity. Free Disposal: P375,000

M = P3,000,000 With Respect to Legal Separation

F = P3,000,000
Innocent Spouse Guilty Spouse
If F predeceased the The mother receives the entire legitime. Surviving Even if the testator is By operation of law, the
testator
Spouse the guilty spouse, the guilty spouse is
M = P6,000,000
surviving spouse may disqualified to inherit
still inherit. from the estate if there
There is no right of representation in the
ascending line, it only pertains to the
is fa final decree of
descending line. Even Article 890 provides legal separation.
that “if one of the parents should have died,
the whole shall pass to the survivor.” In legal separation the guilty spouse is automatically disqualified to
inherit from the innocent spouse even without disinheritance on the
If M and F predeceased The legitime shall be divided equally part of the innocent spouse. But there must be a final decree of legal
the testator between both lines: (1) the maternal line separation.
and (2) paternal line.
ARTICLE 893
Maternal Line = P3,000,000 If the testator leaves no legitimate descendants, but leaves
 Maternal Grandmother = P1.5M legitimate ascendants, the surviving spouse shall have a right to
 Maternal Grandfather = P1.5M one‐fourth of the hereditary estate.

Paternal Line = P3,000,000 This fourth shall be taken from the free portion of the estate
 Paternal Grandmother = P1.5M
 Paternal Grandfather = P1.5M Surviving Spouse Concurring With Legitimate Ascendants
Surviving Spouse Shall have a right to 1/4 of the hereditary
estate
Note: Article 891 on Reserva Troncal is discussed later.  P250,000 to be taken from the
free portion
ARTICLE 892
If only one legitimate child or descendant of the deceased Testator’s Mother and Shall divide equally to the 1/2 of the
survives, the widow or widower shall be entitled to one‐fourth of Testator’s Father hereditary estate.
the hereditary estate. In case of a legal separation, the surviving  P500,000 (Legitime)
spouse may inherit if it was the deceased who had given cause for  P250,000 each parent.
the same. Free Disposal P1,000,000
(P500,000) Legitimate Ascendants
If there are two or more legitimate children or descendants, the
surviving spouse shall be entitled to a portion equal to the P500,000
legitime of each of the legitimate children or descendants. (P250,000) Surviving Spouse

In both cases, the legitime of the surviving spouse shall be taken P250,000 Free Disposal
from the portion that can be freely disposed of by the testator.
 Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 120
ARTICLE 894
If the testator leaves illegitimate children, the surviving spouse
shall be entitled to one‐third of the hereditary estate of the
deceased and the illegitimate children to another third. The
remaining third shall be at the free disposal of the testator. (n)
Surviving Spouse with Illegitimate Children
If there are no illegitimate children and there are only illegitimate
children and surviving spouse, the distribution shall be:
1. Surviving spouse – 1/3
2. Illegitimate Child or Children – 1/3
3. Free Disposal – 1/3
ARTICLE 895
~ No longer applies under the Family Code ~
ARTICLE 896
Illegitimate children who may survive with legitimate parents or
ascendants of the deceased shall be entitled to one‐fourth of the
hereditary estate to be taken from the portion at the free disposal
of the testator.
Illegitimate Children Concurring with
Legitimate Parents or Ascendants
1. Legitimate parents or ascendants – 1/2
2. Illegitimate children – 1/4
DEL ROSARIO v. CONANAN
GR L-37903, March 30, 1977
Facts: Felix Del Rosario died in 1969 in a plane crash. He left as nearest
relatives Dorotea Conanan as the surviving wife and Marilou Del Rosario
the legally adopted child of Felix and Dorotea.
The mother of Felix, Getrudes filed a petition for settlement and partition
of the estate. But the lower court denied Getrudes’ petition.
(This arose as an issue because at that time there are conflicting theories
about what should be the inheritance of a legally adopted child of deceased
but the law says that the right of the legally adopted child shall be the same
as that of the legitimate child).
Issue: Would the legally adopted child exclude in the inheritance the
parent or ascendant of the deceased? – No.
Held: The reason for this was (using the old Civil under Article 343), it that it
is unjust to exclude the adopter’s parents from the inheritance in favor of
an adopted person. It must most unfair to accord more successional rights
to the adopted who is only related artificially by fiction of law to the
deceased, than those who are naturally related to him by blood in the direct
ascending line. Article 343 had provided:
“If the adopter is survived by legitimate parents or ascendants and by an
adopted person, the latter shall not have more successional rights than an
acknowledged natural child.”
The applicability of Article 343 does not exclude the surviving parent of
the deceased adopter, not only because a contrary view would defeat the
intent of the framers of the law, but also because in intestate succession,
where legitimate parents or ascendants concur with the surviving spouse
of the deceased, the latter does not necessarily exclude the former from the
inheritance. (As affirmed by Article 893).
Consequently, the respective shares of the surviving spouse, ascendant and
adopted child should be determined by Article 1000 of the New Civil Code,
which reads: “Art. 1000. If legitimate ascendants, the surviving spouse and
illegitimate children are left, the ascendants shall be entitled to one-half of
the inheritance, and the other half shall be divided between the surviving
spouse and the illegitimate children so that such widow or widower shall
have one-fourth of the estate, the illegitimate children the other fourth.”
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
Q. Will this ruling apply in the advent of the Family Code?
“A legally adopted child has the same right as a legitimate child.” But
there is still not ruling that reversed Del Rosario v. Conanan, thus if the
same scenario will arise, the decision may still be used, until the time
the Supreme Court reverses the decision.
ARTICLE 897
~ No longer applies under the Family Code ~
ARTICLE 898
~ No longer applies under the Family Code ~
ARTICLE 899
When the widow or widower survives with legitimate parents or
ascendants and with illegitimate children, such surviving spouse
shall be entitled to one‐eighth of the hereditary estate of the
deceased which must be taken from the free portion, and the
illegitimate children shall be entitled to one‐fourth of the estate
which shall be taken also from the disposable portion. The
testator may freely dispose of the remaining one‐eighth of the
estate. (n)
Surviving Spouse Concurring with Legitimate Parents or
Ascendants and Illegitimate Children
Article 899 shall apply only when the following are present:
(a) At least one legitimate parent or ascendant
(b) Surviving spouse
(c) At least one illegitimate child
Thus, if there are legitimate children or descendant, Article 899 will
not be applicable.
Surviving Spouse 1/8 of the hereditary estate to be taken
from the free portion
Illegitimate Children 1/4 of the hereditary estate to be taken
from the disposable portion
Legitimate Parents or 1/2 of the hereditary estate (legitime)
Ascendants
Estate Value: P800,000
Testator Mother and Father: P400,000 (P200,000 each)
Surviving Spouse: P100,000 (or 1/8 of the estate)
Illegitimate Children: P200,000 (or 1/4 of estate divide by number)
Free Disposal: P100,000
Note: This is called one of the Unholy Provisions because it appears
that the spouse is being penalized for not having children with the
testator. Thus, it would be better to have children and avoid having
illegitimate children.
ARTICLE 900
If the only survivor is the widow or widower, she or he shall be
entitled to one‐half of the hereditary estate of the deceased
spouse, and the testator may freely dispose of the other half.
If the marriage between the surviving spouse and the testator
was solemnized in articulo mortis, and the testator died within
three months from the time of the marriage, the legitime of the
surviving spouse as the sole heir shall be one‐third of the
hereditary estate, except when they have been living as husband
and wife for more than five years. In the latter case, the legitime
of the surviving spouse shall be that specified in the preceding
paragraph.
Surviving Spouse as the Only Compulsory Heir
[1] General Rule – Surviving spouse, if he or she is the only compulsory
heir left, then he or she gets one-half (1/2) of the estate. The other half
is left to the free portion and free disposal.
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[2] Exception: The surviving spouse gets 1/3 (one-third) if T

1. The marriage was in articulo mortis;
2. The testator or testatrix died within 3 months from time of
celebration of marriage which applies only
a. if it was the deceased who was the party in danger
of death at the time of marriage and
b. the cause of death is the same sickness, illness and
injury existing at the time of marriage
To prevent those marriages made for the pursuit of financial gain.
[3] Exception to the Exception: Surviving spouse will get 1/2 if
 Despite presence of requirements for the exception in those
marriages in articulo mortis,
 The couple had been living previously as husband and wife
(without marriage) for more than 5 years.
 This is because there is no presumption of financial gain.
A (Illegitimate Child)
X (illegitimate) Y (legitimate)
If the illegitimate child (A) predeceased the testator, and he has two
children, Y (legitimate) and Z (illegitimate), both can be represented by
his children whether legitimate or illegitimate. This is because the law
says that his rights are transmitted upon his death to his descendants,
whether legitimate or illegitimate children. Thus, they can represent A
who was an illegitimate child of the testator. In short, if one is an
illegitimate child, he can be represented by his descendants, whether
legitimate or illegitimate.

Applies Only in Testamentary Succession ARTICLE 903

In legal succession, there is no similar provision, hence, the Article
applies only to a case of testamentary succession, or whenever the
legitime is affected, as in the case of mixed succession.
ARTICLE 901
When the testator dies leaving illegitimate children and no other
compulsory heirs, such illegitimate children shall have a right to
one‐half of the hereditary estate of the deceased. The other half
shall be at the free disposal of the testator.
Illegitimate Children as the Only Compulsory Heirs
1. Legitimate children shall be entitled to one-half
2. Free portion is also one-half
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.
Transmission of Hereditary Rights of Illegitimate Children
The right of representation is given to both legitimate and legitimate
descendants of illegitimate children. Note that the illegitimate child
gets 1/2 of the share of the legitimate child.
Survivors Distribution
Estate: P12,000,000
2 Legitimate Legitime: P6,000,000
Children Each LC: P3,000,000
1 Illegitimate Illegitimate Child gets 1/2 of the share of a
Child legitimate child:
 P1,500,000
 To be taken from the free portion
The legitime of the parents who have an illegitimate child, when
such child leaves neither legitimate descendants, nor a surviving
spouse, nor illegitimate children, is one‐half of the hereditary
estate of such illegitimate child. If only legitimate or illegitimate
children are left, the parents are not entitled to any legitime
whatsoever. If only the widow or widower survives with parents
of the illegitimate child, the legitime of the parents is one‐fourth
of the hereditary estate of the child, and that of the surviving
spouse also one‐fourth of the estate.
Legitime of Illegitimate Parents as the Only Compulsory Heirs
Article 903 contemplates the estate of an illegitimate child.
 The illegitimate parent is always excluded by children
whether legitimate or illegitimate.
 But a legitimate parent is only excluded by the legitimate
children and descendants of the testator.
 Legitimate parents concur with illegitimate children.
Legitimate Legitimate parents are always entitled to one-
Parents half of the estate (1/2).
Illegitimate
children
Illegitimate Note that legitimate parents are excluded in
Parents the presence of legitimate children, thus with
all the more reason they would exclude
Legitimate Child illegitimate parents.
of Testator
And again, illegitimate children would exclude
Illegitimate Child illegitimate parents. They are excluded by the
of Testator presence of the illegitimate child.
RESERVA TRONCAL

Free Disposal: P4,500,000 ARTICLE 891

2 Legitimate Legitime: P6M (P3M per legitimate child) The ascendant who inherits from his descendant any property
Children which the latter may have acquired by gratuitous title from
Spouse shall receive P3M (1/4 free portion) another ascendant, or a brother or sister, is obliged to reserve
Spouse such property as he may have acquired by operation of law for
the benefit of relatives who are within the third degree and who
Illegitimate Child shall receive P1.5M (1/2 of
belong to the line from which said property came.
1 Illegitimate that of illegitimate child from free portion)
Child
Reserva Troncal, Defined
Free Disposal: P1,500,000
It is the process by which an ascendant who inherits by operation of
2 Legitimate Legitime: P6M (P3M per legitimate child)
law from his descendant which the latter may have quired by
Children Spouses: P3M (from free portion)
gratuitous title from another ascendant or a brother or sister, is then
obliged by law to reserve such property for the benefit of third degree
Spouse But there, the “1/2 of Legitimate Child” rule
relatives who belong to the line from which the property came from.
cannot be applied literally, thus remainder of
10 Illegitimate P3M shall be divided into 10 children
Purpose: This is to prevent accidental transfer of property or wealth
Child  P300,000 each
from one line to another line.
 Legatees and devisees (no more)
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN d
 Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 122
Parties in a Reserva Troncal
1. Origin
a. The person from whom the reservable property
comes from;
b. Either an ascendant or (half) brother or sister of the
prepositus;
2. Prepositus
a. Person to whom the origin transfers the property
by gratuitous title
b. The Arbiter of the Reserva because the prepositus
may alienate or destroy the property and thus
prevent the existence of the reserve
3. Reservor or Reservista
a. The ascendant of the prepositus who receives the
property by operation of law either as legitime or
by intestacy
b. The absolute owner of the property subject to the
resolutory condition of existence of third degree
relatives of the prepositus upon the death of the
reservor
4. Reservees or Reservatario
a. They belong to the same line of the family as that
of the origin
b. Must be related to the prepositus in until the third
degree
c. Subject to the suspensive condition of the death
of the prepositus
The “V” Sign of the Reserva Troncal
Origin (Ascendant) Reservor (Ascendant)
By gratuitous title By operation of law
Prepositus (Descendant)
Illustration 1: The paternal grandfather donates a land to his
grandson. The grandson now owns the land by virtue of the donation,
but the grandson died without issue of his own or without children.
Here, the only survivor is the mother (reservor). The mother would
inherit the property by way of operation of law the property which
originally came from the paternal grandfather.
Under Reserva Troncal, the mother has the obligation to reserve
property in favor of the relatives of the prepositus within the third
degree and then coming from the line of origin – which is the Paternal
Line.
Here, there was an instance that the property from the paternal line
strayed to the maternal side thus the law under Article 891 reserves the
reserva to the reservees who must be third degree relatives of the
prepositus coming from the line of the origin.
There can only be reserva when the property
strays from one line of the family to the other line.
Illustration 2: If the property came from the Maternal Grandfather
then there is no reserva because there is no distinction of lines. Here,
there can be no reserva troncal because the property is not transferred
nor strayed to another line.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
Requisites in Order for Property to have Reservable Character
1. That the property was acquired by a descendant called the
prepositus from an ascendant or half-brother or sister by
gratuitous title;
2. That the said descendant died without an issue or children
3. That the same property or reserva is inherited by another
descendant or reservor or reservista by operation of law
either through intestate or compulsory succession from the
prepositus and
4. That there are living relatives within the third degree
counted from the prepositus and belonging to the same line
from the origin.
Origin or the Descendant from whom the Property Came From
1. He can be the ascendant of the prepositus, or the
2. Half-brother or sister of the prepositus
Origin if Brother or Sister Should be Half-Blood
If the ‘origin’ is the full blood brother of prepositus, there can be no
distinction of lines. This is because if the ‘origin’ is the full brother it
means that the ascendant-reservor (mother) is in the same line. Thus,
to create a reserva, then the origin should be the half-brother which
basically comes from the other line.
Reserva Troncal Contemplates Legitimate Relationship
In Gonzales v. CFI of Manila (GR L-34395, May 19, 1981), reserva troncal
contemplates legitimate relationship. Illegitimate relationship and
relationship by affinity are excluded.
 This means that the brother or sister contemplated by the
law in reserva troncal must be a legitimate half-blood
brother or sister.
 This can happen when the one of the parents of the
prepositus dies and the surviving parents remarries.
Transmissions Involved in a Reserva Troncal
1. First transmission is by gratuitous title via inheritance or
donation from an ascendant or half brother or sister to the
descendant
2. Second transmission is by operation of law via legitime or
intestate succession from the descendant in favor of another
ascendant, the reservor
3. Third transmission of the same property from reservor to
the reservees or the relatives within the third degree from
the deceased descendant belonging to the line of the origin.
First Transmission: From Origin to Prepositus by Gratuitous Title
FRIAS CHUA v. CFI
GR L-29901, August 31, 1977
Facts: When the father died, his son inherited 1/2 of a piece of land from
him and the other 1/2 went to the surviving spouse. Upon the death of the
son, his 1/2 share went to his mother by operation of law. The property had
been received from the father out of his pure generosity and was therefore
gratuitous. Yet the probate court ordered payment of interests, costs and
other fees.
Issue: Is the said one-half still considered gratuitous for the purpose of the
rule concerning reserve troncal?
Held: Yes, for it was really a gratuitous object received from the father, who
had not imposed any condition or burden on the lot. The obligation to pay
was imposed not by the origin but by the court. Thus, the said 1/2 is
therefore reservable.
As explained by Manresa, a transmission is gratuitous when the recipient
does not give anything in return. It matters not whether the property
transmitted be or be not subject to any prior changes. What is essential is
that the transmission be made gratuitously, or by an act of mere liberality
of the person making it, without imposing any obligation on the part of the
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recipient and that the person receiving the property does nothing in return.
In this case, the transmission of the property in question to Juanito upon
the death of his father was by means of hereditary succession and it is
therefore gratuitous.
The obligation of paying Standard Oil the amount imposed upon them is
imposed by the order of the court and not by the origin Jose. As long as the
transmission of the property to the heirs is free from any condition imposed
by the deceased himself and the property is given out of pure generosity. It
is gratuitous.
Therefore, the first transmission from the origin to the prepositus must
be by gratuitous title which could be by:
1. Testamentary Succession
2. Legal Succession
3. Donation
Reserva must be the very same property which was received from the
Origin. Thus, if the lotto ticket won an amount, there is no reserva
because what is involved is no longer the very same property.
Second Transmission: Prepositus to Reservor by Operation of Law
Operation of Law
1. Legal Succession
2. Testamentary Succession by Legitime
a. Even if there is a will, there can still be transfer by
operation of law if the reservor-ascendant had
inherited the property as part of her legitime.
b. Even if it is a legitime, it is an exception when it can
be burdened – to be reserved by the reservor on
behalf of the reservees.
Third Transmission: Reservor to Reservees
Kind of Ownership by Reservor
The reservor is a full owner subject to a resolutory condition. The
resolutory condition is this: If at the reservor’s death, there should exist
relatives within the third degree of the prepositus belonging to the same
line from the origin, the reservor’s ownership is terminated. Hence the
property would not be part of the reservor’s estate. Instead the
ownership is transferred to the reservees.
SIENES v. ESPARCIA
GR L-12957, March 24, 1961
Parties to the Case
[1] Father – Saturnino
[2] First Marriage
Wife – Teresa Children – Fernando, Paulina and Cipriana
[3] Second Marriage
Wife – Andrea Child – Francisco
Facts: A Lot was originally owned by Saturnino and was issued in the name
of Francisco. When Francisco died without issue, Andrea as sole heir sold
the property to Sienes for P800.
The surviving half-sisters of Francisco (Paulina and Cipriana) had declared
the property in their name and executed a deed of sale in favor of the Sps.
Esparcia. Andrea later on.
Issue: Are the sales of Sienes and Esparcia valid? – Yes.
Held: The property was a reservable property. Francisco inherited the
property by operation of law from his father Saturnino and upon the death
of Francisco, unmarried and without descendants, it was inherited, in turn,
by his mother Andrea. Andrea here had the obligation to reserve it for the
benefit of the relatives within the third degree belonging to the line from
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
which the property came, if any survived. Here, Andrea died and the
surviving reservee at the time was Cipriana who also died later on.
(1) The Sale by Reservor to Sienes is Valid Subject to Resolutory Condition.
– The reservista or the reservor has the legal title and dominion to the
reservable property subject to a resolutory condition. That the reservor is
like a usufructuary of the reservable property. That he may alienate the same
but subject to reservation said alienation transmitting only the revocable
and conditional ownership of the reservists, the rights acquired by the
transferee being revoked or resolved by the survival of the reservatarios at
the time of the death of reservista.
Meaning, the first sale was valid but this is subject to reservation. On the
part of the reservor that is a Resolutory Condition which are the
(1) Death of the reservor ;and
(2) Survival of the reservees
Thus, when Andrea (Reservor) died, the property burdened by the reserva
will not go to the estate of the reservor but it will go to the reservees.
(2) The Sale by Reservees to Sps. Esparcia is also Valid but Subject to a
Suspensive Condition. – The sale made by the reservees of the property
during the lifetime of the reservor is also valid. This is in nature of a sale of a
future property under Article 1461. The sale however is subject to a
suspensive condition which is the same: (1) Death of the reservor and the
(2) Survival of the Reservees.
Rights of Reservees Against the Reservor
1. Real Property
a. Furnish a bond, security or mortgage to guarantee
the safe delivery later on to the reservee of the
properties concerned
b. Registration of the reserva or by annotation in the
title of the burden of the reserva, the reservees
themselves can compel the reservor to have the
annotation within 90 days from the death of the
prepositus (within which the time the reservor
should obtain registration)
2. Personal Property – reservor must make an inventory of
property received and have the inventory registered in the
Registry of Property.
Reservees
1. Must be within the third degree of the prepositus
2. Must come from the same line as where the property came
from or the origin
3. Must be legitimate relatives
Counting of Degrees – if the prepositus is a descendant of the origin
1. Direct Relatives
a. From child to parents – 1 degree
b. From child to grandparents – 2 degrees
c. From child to great grandparents – 3 degrees
2. Collateral Relatives
a. From child to brothers or sisters – 2 degrees
b. From child to uncles or aunts – 3 degrees
What if all of them survive?
In so far as reserva troncal is concerned, it merely determines which
class of heirs would be entitled to the property. But between and
among these heirs, then the rule in intestate succession is followed:
1. Those in the direct line is preferred over those in the
collateral line;
2. If both in direct line or collateral line, those who are in the
descending line are favored over those in ascending line.
3. Then, the rule on proximity shall be followed, meaning the
nearer relative within the third degree is considered.
Ex. Between great grandparents and grandparents, the
grandparents are preferred
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Love first descends, it ascends, then it spreads.
MENDOZA v. DELOS SANTOS
GR 176422, March 20, 2013
Reserva troncal is a special rule designed primarily to assure the return of a
reservable property to the third degree relatives belonging to the line from
which the property originally came, and avoid its being dissipated into and
by the relatives of the inheriting ascendant.
Facts: This involved three parcels of land in the name of Julia. Petitioners
alleged that the properties were part of the estate of their grandfather
Placido. When Placido died Exequiel inherited the property by way of legal
succession. The only descendant of Exequiel was Gregoria who inherited
the property from Exequiel.
Gregoria died intestate and without issue. They claimed that after the death
of Gregoria, Julia, who was the sister of Leonor (Gregoria’s mother),
adjudicated to herself the properties as sole surviving heir. Hence, the
petitioners claim that the properties should have been reserved by Julia in
their behalf and must now revert back to them applying Article 891 of the
Civil Code on reserva troncal.
Held: (1) The lineal character of the reservable property is reckoned from
the ascendant from whom the prepositus received the property by
gratuitous title. – It should be pointed out that the ownership of the
properties should be reckoned only from Exequiel’s as he is the origin. The
law does not go father than such ascendant/brother/sister in determining
the lineal character of the property.
Here, it is clear that Article 891 provides that the person obliged to reserve
the property should be an ascendant. Here, it is clear that Julia is not the
descendant of Gregoria but a collateral relative. Gregoria’s ascendants are
her parents, Exequiel and Leonor, grandparents and so on. Not being the
ascendant of Gregoria, Julia is a collateral relative.
(2) First cousins of the descendant/prepositus are fourth degree relatives
and cannot be considered reservees/reservatarios. - Moreover, petitioners
cannot be considered reservees/reservatarios as they are not relatives
within the third degree of Gregoria from whom the properties came. The
person from whom the degree should be reckoned is the
descendant/prepositus―the one at the end of the line from which the
property came and upon whom the property last revolved by descent.
It is Gregoria in this case. Petitioners are Gregoria’s fourth degree
relatives, being her first cousins. First cousins of the prepositus are
fourth degree relatives and are not reservees or reservatarios. They
cannot even claim representation of their predecessors Antonio and
Valentin as Article 891 grants a personal right of reservation only to the
relatives up to the third degree from whom the reservable properties came.
The only recognized exemption is in the case of nephews and nieces of the
prepositus, who have the right to represent their ascendants (fathers and
mothers) who are the brothers/sisters of the prepositus and relatives within
the third degree.
In conclusion:
[1] Julia is not the proper ascendant within the purview of Article 891
[2] The petitioners are not the relatives within the third degree.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
Valuation of the Reserva
Under the Law on Reserva Troncal, there are two theories regarding the
valuation of the reserva or the determination of how much is the
reservable property:
1. Reserva Maxima – the value of the reserva is as much as can
be covered in the legitime;
2. Reserva Minima – for every property transferred by
operation of law from ascendant to descendant 1/2 is the
legitime and 1/2 is the free portion.
This would matter if the descendant prepositus died with a will, if he
died intestate, then it shall be by operation of law to the descendant.
Illustration A: Here, A has a total net estate of P15,000,000. Here, A
received a donation of P10,000,000 from his grandfather. A also bought
properties worth P5,000,000. A died without issue. Suppose A left a will.
The legitime of the mother as only survivor would be P7,500,000. Then,
supposing that all the requisites for reserva troncal is present.
How much is the value of the reserva?
Theory of Reserva Maxima
This is as much as can be covered by the legitime. If the legitime of the
mother is P7,500,000. The property coming from the origin is P10M. But
because the legitime is only P7.5M, then the amount that is subject to
reservation is only up to P7,500,000 even if the property coming from
the origin is worth at P10M. This is because it is as much as can be
covered by the legitime.
Theory of Reserva Minima
It presupposes that for every property one-half of which forms part of
the legitime and one-half forms part of the free portion. Thus in the same
example then of the P10,000,000 donation:
 Legitime is P5,000,000
 Free Portion is P5,000,000
The value of the reserva minima is only P5,000,000 representing the
legitime of the P10,000,000 from the Origin.
Illustration B: Suppose the grandfather donated property to A of P5M
and upon the death of A without issue it went to the mother in the way
of testamentary succession, but on his own the grandchild also obtained
properties amounting to P10M. Total value of estate is P15M.
How much is the value of the reserva?
Reserva Maxima
Since the legitime of the mother is P7,500,000, then as much as can be
covered by the legitime – but the property is only worth P5,000,000 thus
clearly only until P5M which is the value of the property.
Reserva Minima
Then the property itself is divided:
(1) Legitime is P2,500,000
(2) Free Portion is P2,500,000
Then the value of the reserva by way of reserva minima is only P2.5M as
this is the value which pertains to the legitime.
NOTE: If in Testamentary Succession the portion that is covered by the
reservation is the legitime which is the maximum amount.
Illustration C: Suppose that the grandfather donated to the grandson
and the grandson died without will and property went to the mother by
operation of law. If the survivors are the sister of the mother and the wife
of the grandfather. Is the grandmother a reservee? – No.
The law requires that it be in the line of the origin, and since she is a
spouse of the grandfather is not within such meaning as she is not a
blood relative of the origin. If there is no reservee there is no reserva.
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Prevailing Rule: Reserva Minima
As submitted by Paras, while reserva maxima is in consonance with the
spirit of the lawmaking body, the theory of reserva minima is more just
and more equitable and logical. According to Manresa, in view of the
silence of the law on the matter, the principal of reserva minima should
be followed.
DIRECTOR OF LANDS v. AGUAS
GR 42737, August 11, 1936
Facts: Isidro Santos donated a land to Tomas Santos. When Tomas died the
property was inherited by his son Romeo. Upon the death of Romeo it
passed to his legitimate mother Lucina whose title was annotated with the
reserva. Lucina died and was succeeded by her legitimate father Cayetano.
It was said that Tomas was an adulterous son, meaning Teodoro is not a
legitimate relative of Romeo even though he is in third degree and he
belongs to the same line.
Q. Suppose reservable property is expropriated by the government, is
the reserva extinguished?
A: The reserva continues on the just compensation as this is
required by justice and equity.
Q. Suppose the reservable property is insured and then destroyed, is
there still a reserva?
A: Yes. On the insurance of indemnity. It will be for the
benefit of would-be reservees. If there are no reservees alive it will then
go to the estate of the reservor.
_____________
ARTICLE 904
The testator cannot deprive his compulsory heirs of their
legitime, except in cases expressly specified by law.
Neither can he impose upon the same any burden, encumbrance,
condition, or substitution of any kind whatsoever

No Deprivation of or Burden on the Legitime

This is due to the very nature of the legitime – that part exclusively
reserved for the forced heirs. Should there be any charge, condition,
substitution or encumbrance upon the legitime, said charge, etc. shall
be considered as not imposed.

Exceptions on Which Burden May be Imposed

1. Reserva Truncal under Article 891
2. Prohibition to Partition for a period not exceeding 20 years
under Article 1083.

ARTICLE 905
Every renunciation or compromise as regards a future legitime
between the person owing it and his compulsory heirs is void,
The surviving alleged heirs are Teodoro and Cayetano. The question is and the latter may claim the same upon the death of the former;
raised whether the property is subject to reserva troncal. but they must bring to collation whatever they may have received
by virtue of the renunciation or compromise.
Held: Reserva Troncal only applies to Legitimate Relationship. – It being
undisputed that Tomas Santos, father or Romeo Santos (prepositus) was an Renunciation or Compromise of Future Legitime is Void
adulterous child of Isidro Santos, the legitimate father of the appellants, it The right to a future legitime is a mere expectancy, an inchoate right
appears that they are illegitimate relatives not having legal status and regarding future inheritance, hence, it cannot be made the subject of a
cannot claim right to the reservation. contract inasmuch as it is against public policy. But upon the death of
the testator, it can now be waived as it becomes a vested right.
When Lucina (reservor) died, there are no legitimate relatives within the
third degree and belonging to the line of origin that existed at the time of However, if upon agreement between the heirs an amount was already
her death and the property in question ceased to be reservable property given to one of them as ‘future legitime’ it will be considered then as
and should pass to the person or persons entitled to it in accordance with
an advance to the legitime and must be brought into collation
the law on succession. It appears that Lucina died intestate without issue
whatever was received by virtue of the renunciation or compromise.
but has a descendant, Cayetano. Thus the inheritance shall pertain to him.
ARTICLE 906
Theory of Delayed Intestacy Any compulsory heir to whom the testator has left by any title less
This is when the resolutory condition of the reserva is fulfilled, then the than the legitime belonging to him may demand that the same be
properties are distributed to the reservees as if they are inheriting from fully satisfied.
the prepositus at the time of the fulfillment of the condition. Since
there is no will, then the reservees inherit by virtue of intestate Completion or Satisfaction of Legitime
succession, the decedent being the prepositus, thus the name delayed If it happens that the compulsory heir receives less than his legitime
intestacy. Meaning, at the time of death of prepositus, the reservees then he is entitled to the remainder – he is entitled to the completion
should already have inherited the property but because of the of his legitime.
presence of the reservor, there was a delay.
Completion of Legitime Preterition
Extinguishment of the Reserva Something is given to their, by Nothing is given to the omitted
1. Upon death of the reservor, it is already extinguished legacy, devise or donation. heir, left out of inheritance and
2. Death of all would-be reservees even by intestacy
3. Upon loss of property without fault or negligence on the part There is no annulment of There is annulment of
of the reservor institution of heirs, need only to institution of heirs
4. Prescription give that to complete legitime
5. Adverse possession if property is not titled The will is still valid subject to The will cannot be given effect
6. Upon registration in Torrens as free from reservation the completion and it be by intestacy
7. Upon waiver by all reservees after death of reservor

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN d
 Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 126
ARTICLE 907
Testamentary dispositions that impair or diminish the legitime
of the compulsory heirs shall be reduced on petition of the same,
insofar as they may be inofficious or excessive.
Reduction of Inofficious Testamentary Disposition
The legitimes of the forced heirs should not be impaired. It can availed
only by the compulsory heirs.
Illustration A: Suppose the value of the estate is P12M and he has a
legitimate child, but in his will he gave a legacy of P10M to a friend. This
legacy is inofficious because it is more than the free portion, thus this
can be reduced. Thus, this can be reduced by petition of the heirs who
are directly affected.
Illustration B: Suppose it was a Donation, and Testator donated to his
friend a land value at P10M upon his death and left an estate worth P2M.
The legitime upon collation (P10M + P2M = P12M) should be P6M. This
means that the donation is inofficious and the compulsory heirs can
petition to abate donation and the donee-stranger will return P4M so
that the legitime may be given.
Illustration C: Suppose P10M was donated to A, one of the compulsory
heirs and the value of the estate, then the same shall still be collated and
thus the legitime should be at P6M. Suppose there are three children (A,
B and C), then the legitimes of B and C. Thus, A has to return to P4M so
that the legitime of B and C be given.
 Value of Estate: P12,000,000
 Legitime and Free Portion: P6,000,000 | P6,000,000
 Inofficious Donation to A
A has to return the excess of P4,000,000 to complete B and
C’s legitime,
- P2M of donation is considered advance to A’s legitime.
- The free portion of P6M is to answer for donation
remainder (See Article 909). (Only P8M of supposed
P10M donation)
ARTICLE 908
To determine the legitime, the value of the property left at the
death of the testator shall be considered, deducting all debts and
charges, which shall not include those imposed in the will.
To the net value of the hereditary estate, shall be added the value
of all donations by the testator that are subject to collation, at the
time he made them.
Formula for Computation of Net Hereditary Estate
𝑃𝑟𝑜𝑝𝑒𝑟𝑡𝑦 𝐿𝑒𝑓𝑡 𝐶𝑜𝑙𝑙𝑎𝑡𝑖𝑜𝑛𝑎𝑏𝑙𝑒 𝐷𝑜𝑛𝑎𝑡𝑖𝑜𝑛𝑠 𝐷𝑒𝑏𝑡𝑠 & 𝐶ℎ𝑎𝑟𝑔𝑒𝑠
Suppose X is a legitimate child and Y is a stranger.
Value of the Estate at time of death is P10,000,000
 Donations
1. To X – P2,000,000
2. To Y – P1,000,000
 Other Debts – P5,000,000
 Taxes – P300,000
 Legacies – P2,000,000
 Devises – P3,000,000
Net Estate = (Property Left + Collationable Donations) – (Debts/Charges)
Net Estate = (P10M + P3M) – (P5M + P300K)
Net Estate = P13M – P5.3M
Net Estate = P7,700,000
Note, this does not include legacies and devises.
Because they will be deducted from the net estate itself. This is what is
meant by “deducting all debts and charges, which shall not include
those imposed in will.”
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
ARTICLE 909
Donations given to children shall be charged to their legitime.
Donations made to strangers shall be charged to that part of the
estate of which the testator could have disposed by his last will.
Insofar as they may be inofficious or may exceed the disposable
portion, they shall be reduced according to the rules established
by this Code.
Donations, Where Charged
1. Donations to Children – these should first be imputed to or
charged against their legitime; and if the legitime is not
sufficient to cover the donations, the excess should be
charged to the free portion; and if still excessive they should
be reduced so as not to impair the legitimes of others.
2. Donations to Strangers – these shall be charged to the part
of the estate which the testator could have disposed by his
last will – meaning that in the free portion.
Illustration: Suppose T has three children, A, B and C. Y is a best friend
of the testator and considered a stranger. Consider that:
1. C received a donation of P3,500,000
2. Y received a donation of P1,000,000
3. Net Estate is P12,000,000
Legitime: P6,000,000 Free Portion is P6,000,000
Distribution of Legitime:
P6,000,000 / 3 Legitimate Children = P2,000,000 legitime per child
A - P2,000,000
B – P2,000,000
C – P2,000,000*
* - But since C received P3,500,000 already as donation inter vivos this
shall be considered as an advance to his legitime (Art. 909, par. 1). But
since there is excess, the excess shall be charged to the free portion.
Legitime (P2M) – Donation Value (P3.5M) = P1,500,000 Excess
The excess shall then be charged to the free portion. There is no need
for C to return the P1,500,000 since there is still a free portion of P6M.
The donation to Y is not inofficious and Article 909, par. 2 provides that
it can still be charged against the free portion.
Distribution of Free Portion
P6,000,000
(P1,500,000) – Excess of donation to C
(P1,000,000) – Donation to Y
P3,500,000 – Remaining value of the free portion
This value is then used to satisfy donations, legacies, devises, etc.
Rules in Distributing the Free Portion
If the free portion is not enough to satisfy the donations, legacies, etc.
1. First satisfy the donations, and between two or more
donations, the earlier donation is preferred;
2. If there is a preferential legacy or device (911) then it shall be
satisfy; then
3. All others pro-rata
NOTE: This only applies if there are donations and compulsory heirs
there is a different rule if there is only legacy or device.
ARTICLE 910
Donations which an illegitimate child may have received during
the lifetime of his father or mother, shall be charged to his
legitime.
Should they exceed the portion that can be freely disposed of,
they shall be reduced in the manner prescribed by this Code.
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Donations to illegitimate Children Step 2: Determine the Legitime and Free Portion
(a) The donations to said illegitimate children are collationable 1. Determine the heirs involved
and chargeable to their legitime a. 2 Legitimate Children
(b) The donations given to illegitimate children should never b. Surviving Spouse and
impair the legitime of the legitimate children
(c) Any donation in excess of the legitime shall be charged to Then according to the law (see Table of Legitimes), then the legitime
shall be as follows:
the free portion and shall be considered in the same category
a. 1/2 of the estate divided by the number legitimate
as donations to strangers.
children
b. For the surviving spouse, then 1/4
ARTICLE 911
After the legitime has been determined in accordance with the 2. Determine the Amounts of Legitime and Free Portion
three preceding articles, the reduction shall be made as follows: a. Legitime: P1,300,000
b. Free Portion: P1,300,000
(1) Donations shall be respected as long as the legitime can
be covered, reducing or annulling, if necessary, the
Step 3: Distribute the Legitime:
devises or legacies made in the will;
1. Since there are two legitimate children the legitime shall be
divided into two: P1,300,000/2 = P650,000 each LC
(2) The reduction of the devises or legacies shall be pro
rata, without any distinction whatever.
2. The surviving spouse shall be entitled to P650,000 (which is
1/4 value of the net estate)
If the testator has directed that a certain devise or
legacy be paid in preference to others, it shall not suffer
any reduction until the latter have been applied in full 3. The Free Portion shall be reduced by the legitime of the
to the payment of the legitime. surviving spouse
a. P1,300,000 – P650,000 = P650,000 remaining
(3) If the devise or legacy consists of a usufruct or life
annuity, whose value may be considered greater than Step 4: Distribute the Remaining Free Portion
that of the disposable portion, the compulsory heirs Donations – Preferred Legacies and Devises – Pro-rata
may choose between complying with the testamentary
provision and delivering to the devisee or legatee the 1. Since there is a donation, then the remaining FP shall be
part of the inheritance of which the testator could reduced by the donation. Since it is the only donation, there
freely dispose. is no need to ascertain which came earlier. Thus,
a. P650,000 – P600,000 (Donation)
Order of Preference in the Hereditary Estate b. Remaining: P50,000
In Article 911, the legitimes are already satisfied. This now refers to the
free portions. Article 911 applies if the free portion is not sufficient to 2. Since there are no preferred legacies or devises, then we
cover the donation, legacies and devises. proceed to the next.

3. Here, it is clear that while the will may provide for a legacy of
Requisites for Article 911 to Apply
P100,000 and a devise of P200,000. But since the remaining
1. There are compulsory heirs
free portion is insufficient to cover the remaining legacies
2. There are donations inter vivos and devises, it shall be PRO-RATA
3. The free portion is not sufficient to cover the donations,
legacies and devises.
a. 𝑥 𝑅𝑒𝑚𝑎𝑖𝑛𝑖𝑛𝑔 𝐹𝑃
Order of Preference
1. First, give the legitimes b. Total Amount is P300,000; Remaining FP is P50,000
2. Then the donations inter vivos (prefer earlier donations)
c. For the Legacy:
3. Then the preferred legacies and devises
P100K/P300K x P50,000
4. Then all other devises and legacies pro-rata in case the estate
1/3 x P50,000
is not sufficient.
= P16,666.67
Reason Why Donations Inter Vivos Are Preferred Over Mortis Causa d. For the Devise:
1. First, they were made first showing preference in the P200K/P300K x P50,000
generosity of the decedent. As has been aptly said, priority in 2/3 x P50,000
time is priority in right, or first come, first served (Manresa) = P33,333.33
2. Second, donation is a bilateral act which requires acceptance
on the part of the donee, while dispositions mortis causa are
unilateral (Manresa) NOTE: This kind of computation will be referred back in Article 950
3. Third, because donations are generally irrevocable.
ARTICLE 912
Illustration: Suppose T left 2 legitimate children and a surviving spouse. If the devise subject to reduction should consist of real property,
 Value of Estate: P2,000,000 which cannot be conveniently divided, it shall go to the devisee if
 Donation inter vivos to Y for P600,000 the reduction does not absorb one‐half of its value; and in a
 Legacy of P100,000 contrary case, to the compulsory heirs; but the former and the
 Devise of P200,000 latter shall reimburse each other in cash for what respectively
belongs to them.
Step 1: Compute the Net Hereditary Estate
NHE = (Value of Estate + Collationable Donations) – (Debts and Charges) The devisee who is entitled to a legitime may retain the entire
NHE = P2,000,000 + P600,000 property, provided its value does not exceed that of the
NHE = P2,600,000 disposable portion and of the share pertaining to him as legitime.

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN d
 Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 128
Reduction of Inofficious Devises
This involves devises that should be reduced for being inofficious,
otherwise the legitimes shall be prejudiced.
1. If the devise consists of real property which cannot be
conveniently divided (e.g. what will remain is a minute
parcel of land which is useless, like 10 sq.m.)
The law provides that:
a. It will go to the devisee if the reduction does not absorb
1/2 of its value, the devisee will then compensate the
compulsory heirs
b. If the reduction absorbs more than 1/2 of its value it shall go
to the compulsory heirs, they will compensate the devisee
2. If devisee is also entitled to a legitime
- He may retain the entire property
- Provided that the value of property does not exceed
that of the disposable portion
- And that of the share pertaining to him as legitime
Meaning, if the value of the property does not exceed the free portion
plus his share he can retain the property.
 But if the devise is in excess, it would now affect the legitime
of the other compulsory heirs, in this instance he then
follows the first situation: to retain the property but pay the
compulsory heirs in cash to satisfy their legitimes.
ARTICLE 913
If the heirs or devisees do not choose to avail themselves of the
right granted by the preceding article, any heir or devisee who
did not have such right may exercise it; should the latter not make
use of it, the property shall be sold at public auction at the
instance of any one of the interested parties
Sale at Public Auction
If the heirs do not chose to avail themselves of Article 912. Then the
property shall be sold at public auction at the instance of any one of
the interested parties. They can now petition to sell the property and
distribute the proceeds.
ARTICLE 914
The testator may devise and bequeath the free portion as he may
deem fit.
The Free Portion
In actuality, the ‘free’ portion is not absolute free in the sense that the
free portion shall be charged the legitime of the surviving spouse and
the illegitimate children. But if after satisfying such, the remaining
portion is the real free portion and the testator may devise or bequeath
the free portion. This is limited by the rule on Incapacities such as
donations to the paramour.
INHERITANCE OF AN ADOPTED CHILD
Inheritance of an Adopted Child
An adopted child is entitled to a legitime. It is provided under the law
that an adopted child shall have the same rights as legitimate children.
Can an adopted child represent the adopter?
Parent of Adopter
Adopter
Adopted Child
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
The adopted child cannot represent the adopter in representation
insofar as the parents or ascendants are concerned. This is because the
fiction of law created by the adoption is only between the adopter
and the adoptee and does not extend to the relatives of the adopter.
In Representation, it is required that the representative himself must
be able and qualified to inherit from the decedent himself. Here, the
adopted child cannot represent the adopter to inherit from ascendant
of the adopter since the fiction of law is between the adopter and the
adopted only. The relationship created by adoption does not extend
to the blood relatives of either parties.
MAURICIO SAYSON v. COURT OF APPEALS
GR 89224-25, January 23, 1992
Held: (1) Adopted children are exclusive heirs under Article 979. – An
adopted child succeeds to the property of adopting parents in the same
manner as a legitimate child.
The philosophy underlying this article is that a person’s love descends first
to his children and grandchildren before it ascends to his parents and
thereafter spreads among his collateral relatives. It is also supposed that
one of his purposes in acquiring properties is to leave them eventually to
his children as a token of his love for them and as a provision for their
continued care even after he is gone from this earth.
(2) Right of Representation as to Adopted Children. – While there is no
doubt that a legitimate child may represent his parents. But a different
conclusion must be reached in the case of Delia and Edmundo (the
adopted children), to whom the grandparents were total strangers. While
it is true that the adopted child shall be deemed to be a legitimate child and
have the same right as the latter, these rights do not include the right of
representation. The relationship created by the adoption is between only
the adopting parents and the adopted child and does not extend to the
blood relatives of either party.
Illegitimate Child that is Adopted
It is allowed under the law that a illegitimate child may be adopted to
raise the status into legitimacy. In this instance, there is a blood relation
between parent of the ascendant and the adopted illegitimate child.
Here, there is still no right of representation mainly because of the
Iron-Bar Rule under Article 992 providing a bar between the legitimate
family and the illegitimate child. The adopted did not improve his
status in a sense that he becomes a legitimate child in relation to the
relatives of the adopted is concerned.
ISABEL DE LA PUERTA v. COURT OF APPEALS
GR 77867, February 6, 1990
Held: Indeed, even as an adopted child, Carmelita would still be barred
from inheriting from Dominga Revuelta for there would be no natural
kindred ties between them and consequently, no legal ties to bind them
either.
As aptly pointed out by Dr. Arturo M. Tolentino: If the adopting parent
should die before the adopted child, the latter cannot represent the former
in the inheritance from the parents or ascendants of the adopter. The
adopted child is not related to the deceased in that case, because the
filiation created by fiction of law is exclusively between the adopter and the
adopted.
"By adoption, the adopters can make for themselves an heir, but they
cannot thus make one for their kindred. The result is that Carmelita, as the
spurious daughter of Vicente de la Puerta, has successional rights to the
intestate estate of her father but not to the estate of Dominga Revuelta. Her
claims for support and inheritance should therefore be filed in the
proceedings for the settlement of her own father's estate and cannot be
considered in the probate of Dominga Revuelta's Will.
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Status of Legitimacy
RA 8552, Domestic Adoption Act
Section 17. Legitimacy. – The adoptee shall be considered the legitimate
son/daughter of the adopter(s) for all intents and purposes and as such is
entitled to all the rights and obligations provided by law to legitimate
sons/daughters born to them without discrimination of any kind. To this
end, the adoptee is entitled to love, guidance, and support in keeping with
the means of the family.
Adopter Can Inherit from Adopted
Section 18. Succession. – In legal and intestate succession, the adopter(s)
and the adoptee shall have reciprocal rights of succession without
distinction from legitimate filiation. However, if the adoptee and his/her
biological parent(s) had left a will, the law on testamentary succession shall
govern.
Q. Can the child of the adopted inherit from adopter?
Atty. Yangyang’s Submission: There is still no jurisprudence,
it is submitted that the descendant of the adoptee can also inherit form
the adopted as a consequence of adoption.
Biological Parents of Adopted Child
Section 16. Parental Authority. – Except in cases where the biological
parent is the spouse of the adopter, all legal ties between the biological
parent(s) and the adoptee shall be severed and the same shall then be
vested on the adopter(s).
General Rule: The biological parents are no longer entitled to inherit
from the adopted.
Exception: Bartolome v. SSS where adopter died during minority of
the adopted ad the authority of the parent reverted when the adopted
dies. (RA 8552 was not yet in effect, but was referred to by analogy).
BARTOLOME v. SSS
GR 192531, November 12, 2014
Facts: John Colcol born on 1983, was an electrician onboard Maersk
Danville vessel. He was enrolled under the Employee’s Compensation
Program. In 2008, an accident occurred on board the vessel were steel
plates feel on John which led to his untimely death. John was childless and
unmarried. John’s biological mother, Bernardina Bartolome filed a claim for
the death benefits with SSS. But SSS denied the claim on the ground that
John was already adopted by Cornelio Colcol and is no longer entitled to
be the beneficiary as the parent of John.
Issue: Is Bernardina entitled to the death benefits? – Yes.
Held: (1) Adopter died during the minority of the adoptee. – When John
was adopted in 1985 (2 years old), Bernardina’s parental authority was then
severed. But Cornelio (adopter) died less than three years after adoption
decree when John was still a minor (4 years of age). Here, the minority of
John is a significant factor. Under such circumstance parental authority
should be deemed to have revered in favor of the biological parents.
Section 20, RA 8552 provides that (by analogy) if the petition for rescission
is granted, the parental authority of the adoptee’s biological parents shall
be restored if the adoptee is still a minor or incapacitated.
(2) John named Bernardina as Beneficiary. – In his SSS application, here
she was named as beneficiary and this deliberate act of indicating her as his
beneficiary shows that he in a way considered her as his dependent.
Looking at the confluence of the circumstances – from Cornelio’s death
during John’s minority, the restoration of parental authority and documents
showing singularity of address and John’s clear intention to designate her
as beneficiary – effectively made petitioner, entitled to death benefit
claims as a dependent parent.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
Biological Brothers and Sisters of the Adopted Child
In Bartolome v. SSS (2014), the Court stated that: “Our consistent ruling
that adoption is a personal relationship and that there are no collateral
relatives by virtue of adoption xxx”
With this statement, Atty. Yangyang submits that since the parental
relation is severed, it is all the more as between the adoptee and his
biological siblings.
Adopted Child and Children of the Adopter
In Dela Puerta v. CA (1990), the court said: “By adoption the adopter can
make for themselves an heir, but they cannot thus make one for their
kindred.” Meaning, that the adopted child cannot inherit from the
children of the adopter. Insofar as the other kindred of adopted is then
concerned, the adopted child as “brother or sister” is not covered.
Adopted Child and Legitimate Parents of Adopter
In Del Rosario v. Conanan (1977), if the adopted child concurs with the
legitimate parent, the law provides that the fiction of law created by
the adoption is only between the adopter and the adopted child.
While it is true that an adopted child have the same rights as a
legitimate child and that a legitimate child would exclude legitimate
parents in cases of legitime, this does not squarely apply to an adopted
child. As stated:
“It is most unfair to accord more successional rights to the adopted,
who is only related artificially by fiction of law to the deceased, than
those who are naturally related to him by blood in the direct ascending
line.” But note that this case involves intestate succession.
Thus if it appears that the concurring heirs are
1. Adopted Child 1/4
2. Surviving Spouse 1/4
3. Legitimate Parents/Ascendants 1/2
But under the Family Code and Domestic Adoption Act
Family Code
Article 189. Adoption shall have the following effects:
(1) For civil purposes, the adopted shall be deemed to be a legitimate child
of the adopters and both shall acquire the reciprocal rights and obligations
arising from the relationship of parent and child, including the right of the
adopted to use the surname of the adopters;
(2) The parental authority of the parents by nature over the adopted shall
terminate and be vested in the adopters, except that if the adopter is the
spouse of the parent by nature of the adopted, parental authority over the
adopted shall be exercised jointly by both spouses; and
(3) The adopted shall remain an intestate heir of his parents and other blood
relatives.
RA 8552 Sections 16-18 (Cited earlier). – Substantially the same with FC,
Question here is that: Did these laws supersede Del Rosario v. Conanan?
Would the adopted child now exclude the legitimate parents?
 If on the side of the legitimate parents: refer to the ruling of the
case of Del Rosario v. Conanan
 If one the side of the adopted child then strictly apply the terms
of RA 8552 stating that there be no discrimination of any kind.
And since the adopted child is considered as a legitimate child.
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Section 6 Held: Under Article 916 of the NCC, disinheritance can be effected only
DISINHERITANCE Articles 915-923 through a will wherein the legal cause therefor shall be specified. This
Court agrees with the RTC and the CA that while the respondents in their
Complaint and Amended Complaint sought the disinheritance of Ramon,
ARTICLE 915 no will or any instrument supposedly effecting the disposition of Antonio’s
A compulsory heir may, in consequence of disinheritance, be estate was ever mentioned. Hence, despite the prayer for Ramon’s
deprived of his legitime, for causes expressly stated by law. disinheritance, Civil Case No. 02-105251 does not partake of the nature of a
special proceeding and does not call for the probate court’s exercise of its
Disinheritance limited jurisdiction.
This is the process or act thru a testamentary disposition of depriving
in a will any compulsory heir of his legitime for true and lawful causes. ARTICLE 917
This can only happen to a compulsory heir. Disinheritance can be made The burden of proving the truth of the cause for disinheritance
only through a will. shall rest upon the other heirs of the testator, if the disinherited
heir should deny it.
ARTICLE 916
Disinheritance can be effected only through a will wherein the Burden of Proof is on the Heirs of Testator
legal cause therefor shall be specified. One of the requisites is that the disinheritance must be for a true cause.
Thus, in case the ground for disinheritance is denied, then the heirs of
Requisites for a Valid Disinheritance (WEL-TET-SIR) the testator must prove that it is really for a true and existing cause.
1. It can be effected only through a valid Will
There must be a will that is valid that complies with all the ARTICLE 918
formalities prescribed by law. Disinheritance without a specification of the cause, or for a cause
the truth of which, if contradicted, is not proved, or which is not
2. It must be made Expressly one of those set forth in this Code, shall annul the institution of
It cannot be made impliedly: “I hereby disinherit A”, heirs insofar as it may prejudice the person disinherited; but the
devises and legacies and other testamentary dispositions shall be
3. There must be a Legal cause for the disinheritance valid to such extent as will not impair the legitime
The law provides for specific grounds for disinheritance
a. Article 919 for the Child or Descendant Effect of Invalid Disinheritance
b. Article 920 for the Parent or Ascendant 1. The institution of heirs is annulled but only insofar as it may
c. Article 920 for the Spouse prejudice the person disinherited, that is insofar as the
legitime of the said heir is impaired.
4. The disinheritance must be for a True cause 2. The devises, legacies and other testamentary dispositions
Even if mentioned in the will, it has to be true. It can even be shall be valid to such extent as will not impair the legitime.
denied by the heir which then must be proved.
Effect of Valid Disinheritance
5. The disinheritance must be for an Existing cause The heir disinherited shall be excluded. He cannot receive by testate or
At the time when the will was made the ground should be in intestate succession. In fact, a will can contain only a disinheritance. In
existence already thus it would not be proper to state in the that case, the estate shall be distributed by intestacy.
will that the ground for disinheritance in the future.
Preterition Valid Disinheritance
6. The disinheritance must be Total or Complete Omission may be either Disinheritance is always
Disinheritance for the legitime must be everything. It must intentional or unintentional, intention thus, it is always an
be total and complete. thus there can be implied express deprivation
deprivation
7. The cause must be Stated in the Will May be with or without cause The cause must be always
Even if the ground may be embarrassing, the ground must stated in the will and must be
have to be stated in the will so that the heir will know the true and legal
ground of his disinheritance and be able to deny such or that Preterition annuls the The disinherited heir gets
there was condonation or reconciliation. institution and the omitted heir nothing either by way of
inherits legitime or by free portion
8. The heir disinherited must also be clearly identified The institution is always void The institution may be valid –
The heir to be disinherited must be mentioned. except when the preterited heir when all the requirements of
predeceases the testator law are followed.
9. The will should not been Revoked
If the will has been revoked then it cannot be probated and Preterition Invalid Disinheritance
any institution of heir will not take effect. The institution of heirs is The institution remains valid
completely annulled. but must be reduced insofar as
RAMON CHING v. RODRIGUEZ the legitime has been impaired.
GR 192828, November 28, 2011 In both cases legacies and devises remain valid insofar as the
legitime has not been impaired.
Facts: The Complaint caption as one for “Disinheritance, Declaration of Both refer to compulsory heirs.
Nullity of Agreement and Waiver, Affidavit of Extrajudicial Settlement, etc.” The
heirs allege that Ramon misrepresented himself ass a son but was in fact
MANINANG v. CA
adopted and Ramon was the prime suspect for the death of Antonio Ching
GR L-57848, June 19, 1982
(decedent) who died due to a stab wound. They alleged from the foregoing
circumstances and upon the authority of Article 919, the respondents
Preterition consists in the omission in the testator’s will of the forced heir
concluded that Ramon can be legally disinherited, hence, prohibited from
or anyone of them, either because they are not mentioned therein, or
receiving any share from the estate of Antonio.
though mentioned they are neither instituted as heirs nor are expressly
disinherited.

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN d
 Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 131
Disinheritance, in turn, is a testamentary disposition depriving any
compulsory in the legitime for a cause authorized by law. Disinheritance is
always voluntary, preterition upon the other hand, is presumed to be
involuntary.
Preterition under Article 854 shall annul the institution of heirs. The
annulment is in toto, unless in the will there are, in addition, testamentary
dispositions in form of devises or legacies. In ineffective disinheritance,
such inheritance shall also ‘annul the institution of heirs’ but only insofar as
it may prejudice the person disinherited, which last phrase is omitted in the
case of preterition. Better stated yet, in disinheritance the nullity is limited
to that portion of the estate which the disinherited heirs have been illegally
deprived.
Effect of Preterition with Valid Disinheritance
Illustration A: The estate is worth P24M. The testator left his three
legitimate children – A, B and C and his best friend D. He made a will
where: A was preterited, B is validly disinherited and C and D are
instituted as heirs for the entire estate.
Effect of Disinheritance: B shall be excluded.
Effect of Preterition: It shall annul the institution of heirs. But the devises
and legacies which are not inofficious shall be respected.
 But the preterition will not affect the disinheritance because
a disinheritance is not an institution.
Thus the institution of C and D as heirs shall be annulled. Meaning, the
estate shall be distributed by legal succession. Thus, since D is not a
compulsory heir he shall be excluded.
Legal Succession: Only A and C shall participate since B was validly
disinherited. Thus the estate shall be divided into two:
1. A shall inherit P12,000,000
2. B shall inherited P12,000,000
Effect of Preterition with Invalid Disinheritance
Illustration A: The estate is worth P24M. The testator left his three
legitimate children – A, B and C and his best friend D. He made a will
where: A was invalidly disinherited and the entire estate was given to B,
C and D.
Effect of Invalid Disinheritance: The institution of the heir is annulled but
only in so far as the legitime is affected. Meaning, the legitime of the heir
who was invalidly disinherited shall be given and then the other
provisions shall be given effect.
Determine the Legitime:
 Legitime: P12,000,000 | Free Portion: P12,000,000
 Legitime of each child: P4,000,000 (P12M/3 Children)
Distribution of the Free Portion
 Only B C and D will participate, since the institution of heirs is
only to the free portion
 Share of each instituted heir: P4,000,000 (P12M/3 heirs)
Distribution of Shares
Heir Legitime Free Portion Total
A P4M - P4M
B P4M P4M P8M
C P4M P4M P8M
D - P4M P4M
Total P12M P12M P24M
Therefore, the difference between the two would seem to effect the
instituted heirs who inherit in the free portion. Because in preterition,
the institution of heirs is completely annulled while in invalid
disinheritance, only as the institution impairs the legitime.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
ARTICLE 919
The following shall be sufficient causes for the disinheritance of
children and descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an
attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(2) When a child or descendant has accused the testator of a
crime for which the law prescribes imprisonment for six years or
more, if the accusation has been found groundless;
(3) When a child or descendant has been convicted of adultery or
concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation,
or undue influence causes the testator to make a will or to change
one already made;
(5) A refusal without justifiable cause to support the parent or
ascendant who disinherits such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or
descendant;
(7) When a child or descendant leads a dishonorable or
disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil
interdiction.
Causes for Disinheritance of a Child or Descendant
The grounds enumerated shall apply to children and descendants
whether they are legitimate or illegitimate.
(1) Found guilty of attempt against the life
1. Found guilty – there should be a final judgment of conviction
by a court of justice, the conviction may come after the
execution of the will
2. There must be intent to kill
3. Against the life of the testator or the spouse, descendant or
ascendant of testator
4. If attempt is sufficient to disinherit, it follows if the act is then
consummated or frustrated there is sufficient cause for the
disinheritance.
5. Being a principal or accomplice is covered. Being an
accessory, it is submitted that it happened after the fact.
(2) False Accusation
1. Testator is accused by child or descendant
2. Accused of a crime for which the law prescribes punishment
of 6 years or more
3. If accusation has been found groundless – such as when the
testator is acquitted of the imputed crime
The false accusation can be in the form of
 Filing a case against the testator
 Testifying falsely against the testator, or
 Indirectly refusing to testify in favor of testator that would be
material to his acquittal
(3) Conviction of Adultery or Concubinage with Testator’s Spouse
 Here, there must be a final judgment of conviction before
this can be applied.
 Can the spouse be also disinherited? (See Art. 921).
(4) Making a Will or Change by Fraud, Violence, etc.
 When the testator made or changed a will
 Due to fraud, violence, intimidation or undue influence by
the child or descendant
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(5) Refusal without just cause to support the parent or ascendant
 The refusal must be without just cause
 Refusal to support is unjustifiable based on the circumstance
depending on the means of the person entitled to give
support
(6) Maltreatment
1. Maltreatment by word (slanderous or offensive language)
2. Maltreatment by deed (physical maltreatment)
- There is no mention of the times of maltreatment
- This ground is not present in 920 (Ascendants)
SEANGIO v. REYES
GR 140371-72, November 27, 2006
This involves a holographic will containing only a disinheritance. The
Kasulatan ng Pag-Aalis ng Mana reads:
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A
Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip
at disposisyon ay tahasan at hayagang inaalisan ko ng lahat at
anumang mana ang paganay kong anak na si Alfredo Seangio dahil
siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng
masama harapan ko at mga kapatid niya na si Virginia Seangio
labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na
ako nasa ibabaw gayon gunit daratin ang araw na ako nasa ilalim
siya at siya nasa ibabaw.
Held: There is Maltreatment as a Ground for Disinheritance. - The
document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed
Segundo’s intention of excluding his eldest son, Alfredo, as an heir to his
estate for the reasons that he cited therein. In effect, Alfredo was
disinherited by Segundo. For disinheritance to be valid, Article 916 of the
Civil Code requires that the same must be effected through a will wherein
the legal cause therefor shall be specified. With regard to the reasons for the
disinheritance that were stated by Segundo in his document, the Court
believes that the incidents, taken as a whole, can be considered a form
of maltreatment of Segundo by his son, Alfredo, and that the matter
presents a sufficient cause for the disinheritance of a child or descendant
under Article 919 of the Civil Code.
If the maltreatment in the form of gross disrespect and raising of the
hand against a grandfather was caused by a child of tender years (14)
and who a little later became insane., this would not be sufficient cause
for disinheritance (Pecson v. Mediavillo, 28 Phil. 81).
PECSON v. MEDIAVILLO
GR 7890, September 29, 1914
The will provides: I declare that one of my daughters, named Teresa,
now deceased, left a legitimate daughter named Rosario Mediavillo.
I also declare that I disinherit my granddaughter, the said Rosario
Mediavillo, because she was grossly disrespectful to me and because
on one occasion, when it was I do not remember, she raised her hand
against me. Therefore, it is my will that the said Rosario Mediavillo
shall have no share in my property.
Held: Cannot be Validly Disinherited. - It appears from the record that
when Rosario Mediavillo was about 14 years of age, she had received some
attentions from a young man — that she had received a letter from him —
and that her grandfather, Florencio Pecson, took occasion to talk to her
about the relations between her and the said young man; that it was upon
that occasion when, it is alleged, the disobedience and disrespect were
shown to her grandfather, and that was the cause for her disinheritance by
her grandfather.
The record shows that very soon after said event she lost the use of her
mental powers and that she has never regained them, except for very
brief periods, up to the present time. The lower court, taking into
consideration her tender years, and the fact that she very soon thereafter
lost the use of her mental faculties, reached the conclusion that she was
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
probably not responsible for the disrespect and disobedience shown to her
grandfather in the year 1894 or 1895.
After a careful consideration of the record, we are inclined to believe that
the same supports the conclusions of the lower court and that the same
supports the conclusions of the lower court that he did not commit the error
complained of in the first assignment of error.
Note: There was no intelligence and voluntariness in the act committed so
it was not considered as a ground for disinheritance.
(7) Dishonorable or Graceful Life
 Here, there need not be a judgment of conviction.
 The essence of the cause is that anything that brings
dishonor or disgrace to the family of the testator merits
correction in the form of disinheritance.
 However, a single act is not ordinarily sufficient.
 Leading a life – implies continuity.
Ex.: Prostitute – the law referred to immoral life of a woman. But it is
submitted that this cause for disinheritance should be broader in scope
as to include both males and the females.
(8) Conviction of a Crime with Civil Interdiction
1. There must be final judgment
2. The crime convicted of must have the accessory penalty of
civil interdiction such as the penalties of death, reclusion
perpetua and reclusion temporal.
ARTICLE 920
The following shall be sufficient causes for the disinheritance of
parents or ascendants, whether legitimate or illegitimate:
(1) When the parents have abandoned their children or induced
their daughters to live a corrupt or immoral life, or attempted
against their virtue;
(2) When the parent or ascendant has been convicted of an
attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(3) When the parent or ascendant has accused the testator of a
crime for which the law prescribes imprisonment for six years or
more, if the accusation has been found to be false;
(4) When the parent or ascendant has been convicted of adultery
or concubinage with the spouse of the testator;
(5) When the parent or ascendant by fraud, violence,
intimidation, or undue influence causes the testator to make a
will or to change one already made;
(6) The loss of parental authority for causes specified in this
Code;
(7) The refusal to support the children or descendants without
justifiable cause;
(8) An attempt by one of the parents against the life of the other,
unless there has been a reconciliation between them.
Causes for Disinheritance of Parents or Ascendants
This applies whether they are legitimate or illegitimate ascendants.
(1) Abandonment or Corruption or Attempted Against Virtue
a. Abandonment – this does not have to amount to a crime as
long as the child has been deprived of basic necessities.
b. Induced daughters to live corrupt or immoral life. – this is
when parents encourage their child into prostitution or that
life be corrupt or immoral.
c. Attempt against virtue. – attempts to rape the daughter and
note – there is no need for final judgment for this.
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(2) Attempt Against the Life
1. Final judgment of conviction
2. Attempt against the life of the testator, his spouse, or his
descendants or ascendants
(Basically the same elements as 919, No. 1)
(3) False Accusation – similar under Article 919.
(4) Convicted of Concubinage or Adultery with Testator’s Spouse
Same as Article 919
(5) Making or Changing Will – Same as Article 919
(6) Loss of Parental Authority – It is submitted that loss of parental
authority is a ground for disinheritance only if there is fault of the part
of the heir-parent or heir-ascendant. Thus, losing parental authority
due to emancipation is not a proper ground.
(7) Refusal to Support Without Just Cause – Similar as Article 919
(8) Attempt Against the Life of the Other Parent
The usual instance herein is when the testator’s father attempt against
the life of the mother (or vice versa). Then it can be ground of the
offending heir-parent.
 There is no need for final judgment, it can be proved by
mere preponderance of evidence.
 Note that Art. 920 (2) also contemplates this situation, but
No. 2 requires a final judgment.
 If the situation is between the parents of the testator the
more apt provision is No. 8.
Effect of Reconciliation
A subsequent reconciliation between the parents deprives the child
the right to disinherit the offending parent. According to Manresa, that
reason tells us the child concerned should not be more severe than the
spouse who has been offended.
A reconciliation implies mutual restoration of feelings to the status
quo, that is to the relationship existing prior to the commission of the
act which strained the relationship. A general pardon without removal
of hurt feelings is not the reconciliation spoken of by law.
ARTICLE 921
The following shall be sufficient causes for disinheriting a spouse:
(1) When the spouse has been convicted of an attempt against the
life of the testator, his or her descendants, or ascendants;
(2) When the spouse has accused the testator of a crime for which
the law prescribes imprisonment of six years or more, and the
accusation has been found to be false;
(3) When the spouse by fraud, violence, intimidation, or undue
influence cause the testator to make a will or to change one
already made;
(4) When the spouse has given cause for legal separation;
(5) When the spouse has given grounds for the loss of parental
authority;
(6) Unjustifiable refusal to support the children or the other
spouse.
Causes of Disinheritance of the Spouse
The concepts under (1) attempt against the life; (2) false accusation; (3)
making or changing a will; (5) ground for loss of parental authority; and
(6) unjustifiable refusal to support are similar with 920.
(4) When the spouse has given cause for legal separation
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
FAMILY CODE
ARTICLE 55
A petition for legal separation may be filed on any of the following
grounds:
(1) Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a child
of the petitioner;
(2) Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner,
a common child, or a child of the petitioner, to engage in
prostitution, or connivance in such corruption or
inducement;
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous
marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the
petitioner; or
(10) Abandonment of petitioner by respondent without
justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include a child
by nature or by adoption.
Guilty Spouse Giving Cause for Legal Separation
a. Any of the grounds for legal separation committed by the
guilty spouse is a ground to disinherit him or her
b. There is no need for final judgment under Article 55 as mere
preponderance of evidence would be sufficient
c. If there is already a Decree of Legal Separation there is no
need to disinherit because one of the effect would be to
disqualify the guilty spouse to inherit from the innocent
spouse by operation of law.
Causes for Legal Separation as Grounds for Disinheritance
1. Repeated physical violence or gross abusive conduct
a. To the innocent spouse
b. Common child, or
c. Child of the innocent spouse
(VAWC can also be filed)
2. Physical violence or moral pressure to compel the petitioner
to change religious or political affiliation
3. Attempt to corrupt or induce to engage prostitution or
connivance therewith involving the petitioner, common
child or child of petitioner
4. Final judgment sentencing guilty spouse for more than 6
years even if pardoned
5. Drug addiction or habitual alcoholism
6. Lesbianism or homosexuality of guilty spouse
a. This cannot be used as a ground against the child
or descendant
7. Contracting a bigamous marriage
8. Sexual infidelity or perversion
a. NOTE: While there is no similar ground under
Article 921. Article 55 of the Family Code provides
for the ground to disinherit against a spouse who
is guilty of concubinage or adultery and in fact
even sexual infidelity or perversion suffices.
9. Attempt against the life of innocent party
a. Under the FC, there is no need for final judgment
b. Under Article 921(1), there is a need for a final
judgment as the wording of the law provides that:
when the spouse has been convicted, there is no
such requirement under Article 55 of the Family
Code.
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ARTICLE 922
A subsequent reconciliation between the offender and the
offended person deprives the latter of the right to disinherit, and
renders ineffectual any disinheritance that may have been made.
Effect of Reconciliation
The reconciliation is the mutual restoration of feelings to the status
quo. It is indeed the resumption of friendly relations. This is different
from forgiveness or condonation which is only a unilateral act.
The reconciliation has the effect of:
1. If there is no disinheritance yet, then this will deprive the
testator the right to disinherit the heir;
2. If there is already a disinheritance in the will, that renders the
disinheritance ineffective.
A forgiveness made by the testator that is not accept by disinherited
heir is not reconciliation. This is unilateral on the part of the testator.
There must be reconciliation in order to deprive the testator the right
to disinherit and renders it ineffectual.
But, suppose testator made the first will and forgave the son and then
he made a second will restoring the son to the will – then the son will
be entitled to his share. Technically this is not a reconciliation, what
took place is a revocation.
ARTICLE 923
The children and descendants of the person disinherited shall
take his or her place and shall preserve the rights of compulsory
heirs with respect to the legitime; but the disinherited parent
shall not have the usufruct or administration of the property
which constitutes the legitime.
Representation of the Disinherited Heir
The children and descendants are allowed to inherit by representation
the legitime of the disinherited heir because the fault of the heir is not
the fault of the representative and it would be unjust to punish them.
Estate Value: P12,000,000
Testator
A B C 2.
X free portion given them and shall not reduce nor impair his
Suppose that B was validly disinherited. Determine the shares to be
received by the heirs.
1. Legitime – P6,000,000 | Free Portion – P6,000,000
2. Legitime – P6,000,000 / 3 (A, X (in representation of B), C)
3. Legitime – P2,000,000 each
Suppose the B is only a minor, is B as the parent, even though he was
disinherited, to administer the property? – No
A. Under the law, the disinherited parent has no usufruct or
administration of the property of this minor child
B. Then the other spouse or other parent shall have the right to
administer
C. If there is no parent available, then appointed guardian.
Note that Article 923, the right of representation extends only to the
legitime. There is no right of representation in the free portion. If the
disinherited person had been given any legacy or devise or part of the
free disposal, the same will still go to the substitutes, if any this is
because the disinherited heir is not to receive anything from the free
portion. Then if there are no substitutes, then accretion if proper, if
accretion is no proper, then the same should go to the legal heirs by
way of intestacy.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
Section 7
LEGACIES AND DEVISES 924-959
ARTICLE 924
All things and rights which are within the commerce of man may
be bequeathed or devised.
Grant of Legacies and Devises
A legacy is bequeathed while a devise is devised.
 Legacy is a gift of personal property given in a will.
 Devise is a gift of real property given in a will.
Legacies and devises are testamentary dispositions giving an
economic benefit or advantage other than an aliquot or fractional part
of the inheritance as distinguished from the giving of gifts from the
institution of heir. They are separated by the testator from the
universality of the inheritance that would have appertained to the heir.
They refer to the free portion.
Subject of Legacy or Devise
Note that while inheritance means all properties, rights and obligations
Article 924 does not mention ‘obligations’ thus what is only covered are
things and rights within the commerce of men.
Organs of the Human Body
The Organ Donation Act provides that organs of the human body may
be transferred by donation or legacy in a will.
ARTICLE 925
A testator may charge with legacies and devises not only his
compulsory heirs but also the legatees and devisees.
The latter shall be liable for the charge only to the extent of the
value of the legacy or the devise received by them. The
compulsory heirs shall not be liable for the charge beyond the
amount of the free portion given them.
Duty of Giving the Legacies and Devises
1. General Rule – The estate.
It is the estate which must give the legacies and devises also
known as “legacy proper”
Compulsory Heirs
The will may provide that a compulsory heir give a legacy or
devise heir give a legacy or devise but only to the amount of
legitime. Thus, if A (heir) has a legitime of P1M and was
charged to devise P500,000 – this cannot be possible since it
would be impairing his legitime, unless A is also a voluntary
heir in the free portion with at least P500,000.
3. Devisees and Legatees
The will may also provide that a devisee be charged in giving
a sub-legacy or sub-devise. Such as when X which a parcel
of land was given is required to give P10,000 per month to M
which is a legacy. This involves a legacy within a legacy or a
devise within a devise. This is allowed since there is no
legitime to be protected but limited to the value received by
them and not beyond it.
ARTICLE 926
When the testator charges one of the heirs with a legacy or devise,
he alone shall be bound.
Should he not charge anyone in particular, all shall be liable in
the same proportion in which they may inherit.
In Case Heirs are Charged with Legacy or Devise
If there is a designation to who is charged, then he alone is bound.
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If there is no mention which heir is liable for the charge then
 All of them in proportion in which they may inherit.
 But this is again in proportion to their institution in the free
portion or free disposal.
It is important that the heir/s must be charged. If there is no mention
at all that the heirs are charged to give the legacy or devise then it is
the estate that shall be liable for the legacy or devise.
ARTICLE 927
If two or more heirs take possession of the estate, they shall be
solidarily liable for the loss or destruction of a thing devised or
bequeathed, even though only one of them should have been
negligent.
Solidarily Liability of Heirs Who Take Possession
This article presupposes that there was no partition yet because if there
is already a partition then each heir is the exclusive owner of specific
portion. Here, there is yet no partition and then two or more heirs take
possession of the estate.
If there is loss or destruction of a thing to be devised or bequeathed
and there is no partition – the law says they are solidarily liable even
though only one of them is negligent. This is one instance that provides
for solidary obligation (exception to joint liability presumption).
ARTICLE 928
The heir who is bound to deliver the legacy or devise shall be
liable in case of eviction, if the thing is indeterminate and is
indicated only by its kind.
Liability for Eviction
1. A thing is considered generic or indeterminate if it is not
particularly designated or physically segregated from all
other things belonging to the same class.
2. Heir who is bound to delivery is liable in case of eviction if the
things is indeterminate and is indicate only by its kind.
Ex.: “I am giving to Q a red car.” If the heir delivers the car and the legatee
was dispossessed due to foreclosure of chattel mortgage then the law
says that the heir has liability against eviction because it was the heir
who chose the object to be delivered.
Ex.: “I hereby give to Q my red Honda Civil with plate number 14344.” In
this case it involves a specific or determinate thing and there is no
liability for eviction for such as the heir has no choice which car to
deliver to the legatee.
ARTICLE 929
If the testator, heir, or legatee owns only a part of, or an interest
in the thing bequeathed, the legacy or devise shall be understood
limited to such part or interest, unless the testator expressly
declares that he gives the thing in its entirety.
Ownership of Only a Part of Thing Bequeathed or Devised
GR: The testator can only give what he owns. Meaning the legacy or
devise shall be limited to such part or interest which is owned by the
testator. Thus, if the testator only had 1/2 of the ownership then it is
only that is given, for the testator cannot give what he does not own.
XPN: Unless the testator express declares that he gives the thing in its
entirety (then see the following articles).
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.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
Effect of Error in Ownership
The situation involves here is that the thing is not owned by the testator
and he thinks he owns it. Here, the legacy or devise is VOID.
 But, if the thing bequeathed though not belonging to the
testator, becomes his, by whatever title after he made the
will and devise the land (like when the property was donated
by the true owner) then the disposition SHALL TAKE EFFECT
This is another exception on the rule of after-acquired properties.
1. When the testator expressly provides that after-acquired
properties are included (793)
2. When there is an execution of a codicil that republishes the
will (834); and
3. When the testator bequeaths or devises a thing which he did
not own but becomes his by whatever title (930)
If the testator knew, that he was not the owner of the property at the
time he made the will then Article 931 applies:
ARTICLE 931
If the testator orders that a thing belonging to another be
acquired in order that it be given to a legatee or devisee, the heir
upon whom the obligation is imposed or the estate must acquire
it and give the same to the legatee or devisee; but if the owner of
the thing refuses to alienate the same, or demands an excessive
price therefor, the heir or the estate shall only be obliged to give
the just value of the thing.
When the Testator Orders the Acquisition
In this Article it is evidence that the testator knows that he is NOT the
owner of the thing being given, thus he orders the acquisition of the
thing. This “order” may be express or implied, since the law does not
distinguish. It may be implied because when a testator, knowing of
another’s ownership, gives the property to a legatee or devisee, it can
be presumed that he really wants the gift to be effective.
1. There is an implied instruction to acquire the property and
give the same to the legatee or devisee: “I hereby give the car
of X to Y.” Then it has to be acquired.
2. If the owner however
a. Refuses to alienate the same, or
b. Demands an excessive price
The heir obliged or the estate shall only be obliged to give
the just value of the thing.
ARTICLE 932
The legacy or devise of a thing which at the time of the execution
of the will already belonged to the legatee or devisee shall be
ineffective, even though another person may have some interest
therein.
If the testator expressly orders that the thing be freed from such
interest or encumbrance, the legacy or devise shall be valid to
that extent.
When Thing Already Belongs to Recipient
1. Void – if the legacy or devise is already owned by supposed
recipient (even if mortgaged to another), this is because you
cannot give something to someone who owns it already. If
the thing at the time of the execution of the will belonged
to the legatee or devisee, the legacy or devise is void.
2. Valid as to the extent that the thing is freed from such
interest or encumbrance. – Even though some person has
an interest in the property like a mortgage, if the testator
expressly orders that the thing be freed from such interest or
encumbrance, the legacy or devise shall be valid up to that
extent (such as the payment of mortgage debt).
But, if the property to be bequeathed or devised at the time that the
will was executed was not yet owned by the legatee or devisee, but
upon the death of the testator the recipient became the owner then
consider Article 933:
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ARTICLE 933
If the thing bequeathed belonged to the legatee or devisee at the
time of the execution of the will, the legacy or devise shall be
without effect, even though it may have subsequently alienated
by him.
If the legatee or devisee acquires it gratuitously after such time,
he can claim nothing by virtue of the legacy or devise; but if it has
been acquired by onerous title he can demand reimbursement
from the heir or the estate.
Belated Acquisition by Legatee or Devisee
If the thing bequeathed or devise
1. Already belonged to the legatee or devisee at the time of the
execution of the will the legacy or devise is VOID
2. If acquired after such time:
a. If acquired gratuitously – he can claim nothing by
virtue of the legacy or devise since the gratuitous
purpose has been made.
b. If acquired onerously – then the legatee or the
devisee can demand REIMBURSEMENT from the
heir or the estate
ARTICLE 934
If the testator should bequeath or devise something pledged or
mortgaged to secure a recoverable debt before the execution of
the will, the estate is obliged to pay the debt, unless the contrary
intention appears.
The same rule applies when the thing is pledged or mortgaged
after the execution of the will.
Any other charge, perpetual or temporary, with which the thing
bequeathed is burdened, passes with it to the legatee or devisee.
If Thing is Pledged or Mortgaged
If the property is pledged or mortgaged and the property is then made
a legacy or devise the estate has to pay the debt, thus it will go to the
devisee free from the mortgage whether it is pledged or mortgaged to
secure a recoverable debt.
 The same rule applies when the thing is pledged or
mortgaged after the execution of the will.
Any other charge, perpetual or temporary
 It shall pass to the legatee or devisee
 Example is a lease which transmits the obligation.
The estate has no obligation to free the land from such other burden
other than for a mortgage or pledge.
ARTICLE 935
The legacy of a credit against a third person or of the remission
or release of a debt of the legatee shall be effective only as regards
that part of the credit or debt existing at the time of the death of
the testator.
In the first case, the estate shall comply with the legacy by
assigning to the legatee all rights of action it may have against the
debtor.
In the second case, by giving the legatee an acquittance, should he
request one. In both cases, the legacy shall comprise all interests
on the credit or debt which may be due the testator at the time of
his death.
Legacy of Credit or Remission
1. Legacy of a Credit – This is when the testator is a creditor of
a debtor for P1,000,000 and testator gave this credit to the
legatee.
2. Legacy of Remission – The testator is legatee’s creditor and
the will remitted this debt of the legatee.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
In both legacy of a credit and legacy of remission:
 The legacy comprise all interest on the credit or the debt
which may be due the testator
 AT THE TIME OF HIS DEATH
“At the Time of His Death” and After-Acquired Properties
1. If the debt is reduced because there way payment, then the
outstanding balance is only included in the legacy of credit
or legacy of remission.
2. If the debt is increased – while the law states that “those due
at the time of his death” this is only limited to the value at
the time of execution of the will because we apply the rule
in after -acquired properties.
Four Exceptions to the Rule on After-Acquired Properties
1. When the testator expressly provides that after-acquired
properties are included (793)
2. When there is an execution of a codicil that republishes the
will (834); and
3. When the testator bequeaths or devises a thing which he did
not own but becomes his by whatever title (930)
4. When there is a reduction of the outstanding debt at the
time of the death of the testator (935)
ARTICLE 936
The legacy referred to in the preceding article shall lapse if the
testator, after having made it, should bring an action against the
debtor for the payment of his debt, even if such payment should
not have been effected at the time of his death.
The legacy to the debtor of the thing pledged by him is
understood to discharge only the right of pledge.
Effect of Action Against Debtor-Legatee
If the testator filed an action for collection against the debtor-legatee
then the legacy is revoked or it “lapses”. The law says ‘bring an action’
thus a mere demand letter would not revoke the legacy of credit or
legacy or remission. There must be a case filed in court.
Legacy of the Thing Pledged
If a thing was pledged to the testator as security, like a ring by the
legatee, who owed the testator P1,000,000, and the testator gave to the
legatee a legacy of the ring – only the pledge is extinguished and not
the debt. The debt itself which is the principal obligation still remains.
If the debtor defaults, the testator cannot foreclose the pledge.
ARTICLE 937
A generic legacy of release or remission of debts comprises those
existing at the time of the execution of the will, but not
subsequent ones.
Generic Legacy of Release or Remission
The legacy of release or remission which is generic, only those that are
existing at the time the will was made should be included. Subsequent
ones are excluded. (See discussion in 935).
ARTICLE 938
A legacy or devise made to a creditor shall not be applied to his
credit, unless the testator so expressly declares.
In the latter case, the creditor shall have the right to collect the
excess, if any, of the credit or of the legacy or devise.
Non-Application of Legacy to Credit
This applies to a situation where testator is the debtor. If the testator
makes a legacy or devise in favor of the creditor:
1. GR: It shall be treated a legacy or devise and shall not be
applied to his credit;
2. XPN: Unless the testator so expressly declares.
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If the testator expressly declares that it applies to the credit
1. Then if there is excess to the legacy or devise after deducting
the credit, then that excess may be collected by the creditor
of the legacy or devise:
a. Legacy of P7,000,000; Debt of P5,000,000. The
creditor can recover excess of P2,000,000.
2. If what is sought to be paid for the debt is a devise, even if it
is worth more than the debt, it is a rule in Obligations and
Contracts that the debtor cannot compel the creditor to
receive something which is different from what is due. The
creditor has the option to refuse.
ARTICLE 939
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 as regards a specified debt more than the amount
thereof is ordered paid, the excess is not due, unless a contrary
intention appears.
The foregoing provisions are without prejudice to the fulfillment
of natural obligations.
Solutio Indebiti and Natural Obligations
1. Legacy is Not Written. - If it turns out that the testator does
not owe anything it the legacy is deemed as not written.
2. Solutio Indebiti. – If payment is ordered but there was excess
it shall not be given to the creditor unless a contrary
intention appears like in Article 938.
3. Natural Obligations. – If the debtor-testator pays despite
knowing the debt to have prescribed the law on natural
obligations apply and the debtor can no longer recover what
he has delivered or paid.
ARTICLE 940
In alternative legacies or devises, the choice is presumed to be
left to the heir upon whom the obligation to give the legacy or
devise may be imposed, or the executor or administrator of the
estate if no particular heir is so obliged.
If the heir, legatee or devisee, who may have been given the
choice, dies before making it, this right shall pass to the
respective heirs.
Once made, the choice is irrevocable.
In the alternative legacies or devises, except as herein provided,
the provisions of this Code regulating obligations of the same
kind shall be observed, save such modifications as may appear
from the intention expressed by the testator.
Alternative Legacies or Devises
This involves alternative legacies or devises – “I hereby order A to give C
a ring or a car.” The option:
1. Rests upon the heir who has been charged with obligation to
give the legacy or devise
2. If there none mentioned, then the executor or administrator
of the estate, or
3. Another legatee or devisee given the right of choice as stated
in the will
If the choice is made it is irrevocable. In such case, the obligation ceases
to be alternative as it already becomes a simple one. Thus, the choice
made is irrevocable already.
But if the choice has not been made and the one to make the choice
died before making the choice it will pass on to the heirs.
The law on Alternative Obligations will apply in suppletory character.
Since this involves a will the principal law is the wishes of the testator
in giving effect to the alternative legacy or devise.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
ARTICLE 941
A legacy of generic personal property shall be valid even if there
be no things of the same kind in the estate.
A devise of indeterminate real property shall be valid only if
there be immovable property of its kind in the estate.
The right of choice shall belong to the executor or administrator
who shall comply with the legacy by the delivery of a thing which
is neither of inferior nor of superior quality.
Legacy or Devise of Generic Property
If the legacy involves a generic or indeterminate property then:
1. If generic personal – it is VALID even if there be none in the
estate implying that the estate is being required to get one.
2. If generic real – it is NOT VALID if there be none of its kind in
the estate.
Period of Time to be Considered
The period of time to be considered in determining whether or not the
property exists in the estate is – at the time of the testator’s death for
it is ‘his estate’ which the law refers. The time of the execution of the
will is therefore not important (6 Manresa 711). Evidently, this is not the
same category as after acquired properties.
Quality
The one who is obliged to deliver only has the obligation to deliver one
with a medium quality taking into account the status of the person to
whom the legacy was given and the capacity of the estate to give the
property.
ARTICLE 942
Whenever the testator expressly leaves the right of choice to the
heir, or to the legatee or devisee, the former may give or the latter
may choose whichever he may prefer.
When Right of Choice is Given to Others
Article 942 applies only when the right of choice is expressly given to
one by the testator himself. In this instance, the estate then would have
to deliver whichever he may prefer.
ARTICLE 943
If the heir, legatee or devisee cannot make the choice, in case it
has been granted him, his right shall pass to his heirs; but a choice
once made shall be irrevocable.
When Choice is Passed to Recipient’s Heirs
If the legatee or devisee has been given the right of choice, once he
makes the choice it shall be irrevocable.
But, if he was not able to make a choice and then he dies, the right to
make a choice is passed on the heirs of the devisees or legatees.
ARTICLE 944
A legacy for education lasts until the legatee is of age, or beyond
the age of majority in order that the legatee may finish some
professional, vocational or general course, provided he pursues
his course diligently.
A legacy for support lasts during the lifetime of the legatee, if the
testator has not otherwise provided.
If the testator has not fixed the amount of such legacies, it shall be
fixed in accordance with the social standing and the
circumstances of the legatee and the value of the estate.
If the testator or during his lifetime used to give the legatee a
certain sum of money or other things by way of support, the same
amount shall be deemed bequeathed, unless it be markedly
disproportionate to the value of the estate.
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Legacy for Education
 GR: It shall last until the legatee is of age (legal age of 18)
 XPN: If the legacy of education was to pursue a professional,
technical or vocational education, then it can be beyond the
age of majority – provided he pursues his course diligently.
Legacy for Support
 GR: It shall last until the lifetime of the legatee
 XPN: Unless the testator has provided otherwise.
The amount shall be fixed in accordance with the social standing and
the circumstances of the legatee and the value of the estate, if it is not
fixed in the will. If the testator, during his lifetime, used to give a certain
sum of money then the same amount shall be deemed bequeathed
unless it then be marked disproportionate to the value of the estate.
ARTICLE 945
If a periodical pension, or a certain annual, monthly, or weekly
amount is bequeathed, the legatee may petition the court for the
first installment upon the death of the testator, and for the
following ones which shall be due at the beginning of each period;
such payment shall not be returned, even though the legatee
should die before the expiration of the period which has
commenced.
Giving of Pensions or Amounts
It can only be demanded if:
1. The testator have died
2. The will has been probated
3. Obligations of the estate must be paid first
4. Legatee may then petition for the first installment upon such
death and for the following ones which shall be due at the
beginning of each period.
ARTICLE 946
If the thing bequeathed should be subject to a usufruct, the
legatee or devisee shall respect such right until it is legally
extinguished.
Gift Burdened by Usufruct
 GR: Upon the death of the testator the rule is that the
usufruct shall be extinguished
 XPN: When it is provided otherwise, then the estate shall
have no obligation to free property from the usufruct and
shall pass on to the devisee until legally extinguished.
ARTICLE 947
The legatee or devisee acquires a right to the pure and simple
legacies or devises from the death of the testator, and transmits
it to his heirs.
Pure and Simple Legacies
If there legacies or devises contain no period nor conditions then once
the testator dies and the will is probated and the free portion is then
determined the legacy and devise can now be given to the heir. This
will retroact from the time of death because the operative act of
succession is the death of the testator.
ARTICLE 948
If the legacy or devise is of a specific and determinate thing
pertaining to the testator, the legatee or devisee acquires the
ownership thereof upon the death of the testator, as well as any
growing fruits, or unborn offspring of animals, or uncollected
income; but not the income which was due and unpaid before the
latter's death.
From the moment of the testator's death, the thing bequeathed
shall be at the risk of the legatee or devisee, who shall, therefore,
bear its loss or deterioration, and shall be benefited by its
increase or improvement, without prejudice to the responsibility
of the executor or administrator.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
Specific and Determinate Legacies or Devises
The reckoning point for the transfer of ownership is from the moment
of death – subject to the probate of the will. The following therefore
belongs to the grantee from the death of the testator
1. The devise or legacy itself;
2. The growing fruits;
3. The unborn offspring of animals
4. Uncollected income (after the death of testator and upon the
receipt of the legatee or devisee)
a. But not those due and unpaid before the death of
the testator (rule on After-Acquired Properties)
Res Perit Domino
From the moment of death of the testator, the thing shall now be at risk
of the legatee or devisee – he now bears the risk of loss or res perit
domino and as well as the advantages of the increase or improvement.
ARTICLE 949
If the bequest should not be of a specific and determinate thing,
but is generic or of quantity, its fruits and interests from the time
of the death of the testator shall pertain to the legatee or devisee
if the testator has expressly so ordered.
Generic Gifts
Since the recipient will not know definitely what he will receive until
after a selection or choice has been made, it follows that he is entitled
to the fruits only from the time the choice has been made – for it is
only after such choice the obligation to deliver the gift to him arises.
Exception: If the testator expressly order that the fruits and
interests of the generic thing shall be payable from time of his death.
ARTICLE 950
If the estate should not be sufficient to cover all the legacies or
devises, their payment shall be made in the following order:
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the testator to be
preferential;
(3) Legacies for support;
(4) Legacies for education;
(5) Legacies or devises of a specific, determinate thing which
forms a part of the estate;
(6) All others pro rata
Order of Preference for Legacies and Devises
As discussed in Article 911, Article 950 applies only when the reduction
concerns the legacies and devises. But, when the legitime is impaired
or when there are donations inter vivos chargeable to the free disposal
then Article 911 is the article to apply.
Order of Priority [Re-P-S-E-S-A]
1. Remuneratory legacies or devises – these are those given by
the testator as remuneration for the past services given by
that person to the testator
2. Preferential legacies or devises. – those which are indicated
or expressly stated by the testator as preferred.
3. Legacies for Support. – Support comprises everything which
is indispensable for the sustenance, medical attendance,
clothing, food and shelter.
4. Legacies for Education
5. Legacies or devises of a Specific, determinate thing which
forms part of the estate
6. All others pro-rata.
Estate Value: P1,000,000
Heirs: 2 Legitimate Children
Legitime: P500,000 | Free Portion P500,000
Computation of Legitime: P250,000 each for the two legitimate children
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Distribution of the Free Portion Legacies of money must be paid in cash, even though the heir or
 If the free portion is sufficient no need to apply Article 950, the estate may not have any.
apply it only when the free portion is insufficient
The expenses necessary for the delivery of the thing bequeathed
Here there was shall be for the account of the heir or the estate, but without
1. Remuneratory Legacy of P200,000 prejudice to the legitime.
2. Preferential Legacy of P50,000
3. Legacy for Support for P180,000 Delivery of the Gift
4. Legacy of Education for P40,000 1. The very thing must be bequeathed and if he is unable to do
5. Devise of a Land in Calinan worth P300,000 so then by paying its value.
6. Jewelry bequeathed to M of P80,000 2. Legacies of money shall be paid in cash even though the
7. Mobile phone bequeathed to N of P60,000 estate does not have any – then the estate shall sell some
properties.
Free Portion
P500,000 Obligation to Deliver
(P200,000) Remuneratory Legacy
 If there is a sub-legacy or sub-devise, then the heir or the
P300,000
legatee or devisee charged with the obligation to deliver;
(P50,000) Preferential Legacy
P250,000  If no one is charged , then the executor or administrator of
(P180,000) Legacy for Support the estate.
P70,000
(P40,000) Legacy for Education Costs: It shall pertain to the one charge (heir or legatee or devisee) but
P30,000 without prejudice to the legitime, in absence thereof the estate.
(P30,000) Devise of Land in Calinan (Specific Devise Part of Estate)
This can no longer be covered fully since FP is insufficient. ARTICLE 953
The legatee or devisee cannot take possession of the thing
Suppose that the devise in Calinan does not form part of the estate: bequeathed upon his own authority, but shall request its delivery
and possession of the heir charged with the legacy or devise, or of
P30,000 – It shall be distributed pro-rata the executor or administrator of the estate should he be
authorized by the court to deliver it.
𝐴𝑚𝑜𝑢𝑛𝑡 𝑜𝑓 𝑅𝑒𝑚𝑎𝑖𝑛𝑖𝑛𝑔 𝐿𝑒𝑔𝑎𝑐𝑦 𝑜𝑟 𝐷𝑒𝑣𝑖𝑠𝑒
𝑥 𝑅𝑒𝑚𝑎𝑖𝑛𝑖𝑛𝑔 𝐹𝑃
𝑇𝑜𝑡𝑎𝑙 𝑜𝑓 𝑅𝑒𝑚𝑎𝑖𝑛𝑖𝑛𝑔 𝐿𝑒𝑔𝑎𝑐𝑖𝑒𝑠 𝑎𝑛𝑑 𝐷𝑒𝑣𝑖𝑠𝑒𝑠 Necessity of Making Request for Delivery
While ownership and possession are transmitted from the death of the
Total of Remaining Legacies and Devises testator, actual delivery will have to wait until the will is probated and
 P300,000 (Calinan devise) the debts and obligations of the estate are paid for.
 P80,000 (Jewelry)
 P60,000 (Mobile Phone) ARTICLE 954
 P440,000 The legatee or devisee cannot accept a part of the legacy or devise
and repudiate the other, if the latter be onerous.
5. Devise of P300,000
 (P300,000 / P440,000) x P30,000 Should he die before having accepted the legacy or devise, leaving
 P20,454.55 several heirs, some of the latter may accept and the others may
repudiate the share respectively belonging to them in the legacy
6. Jewelry of P80,000 or devise.
 (P80,000 / P440,000) x P30,000
 P5,454.55 Partly Onerous and Partly Gratuitous Gifts
1. If the devise provides that the second floor of the house must
7. Mobile Phone of P60,000 be maintained clean, the devisee cannot accept the first floor
 (P60,000 / P440,000) x P30,000 only and repudiate the onerous burden on the second floor.
 P4,090.90 2. However, there is no prohibition, to accept only the onerous
and reject the gratuitous.
Check: (P20,454.55) + (P5,454.55) + (P4,090.90) = P30,000 3. If the legatee or devisee died before having accepted the
right to accept or repudiate would passed to the heirs.
Article 911 Article 950
If the testator made donations If there are no compulsory heirs ARTICLE 955
inter vivos and there are even if there are donations. The legatee or devisee of two legacies or devises, one of which is
compulsory heirs. onerous, cannot renounce the onerous one and accept the other.
If both are onerous or gratuitous, he shall be free to accept or
ARTICLE 951 renounce both, or to renounce either. But if the testator intended
that the two legacies or devises should be inseparable from each
The thing bequeathed shall be delivered with all its accessories
other, the legatee or devisee must either accept or renounce both.
and accessories and in the condition in which it may be upon the
death of the testator.
Any compulsory heir who is at the same time a legatee or devisee
may waive the inheritance and accept the legacy or devise, or
Accessions and Accessories renounce the latter and accept the former, or waive or accept
This refers to a specific legacy or devise, thus all accession and the both.
accessories it has at the time of death shall pertain to the recipient.
Onerous and Gratuitous Gifts
ARTICLE 952 1. One cannot renounce the onerous and accept the other but
The heir, charged with a legacy or devise, or the executor or there is no prohibition to accept only the onerous.
administrator of the estate, must deliver the very thing
2. If both are onerous or gratuitous then he shall be free to
bequeathed if he is able to do so and cannot discharge this
accept or renounce both, or renounce either.
obligation by paying its value.

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN d
 Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 140
3. But if the testator intended that the two legacies or devises
should be inseparable from each other, the legatee or
devisee must either accept or renounce both.
Compulsory Heir; Waiver
Any compulsory heir who is at the same time a legatee or devisee may
waive the inheritance and accept the legacy or devise, or renounce the
latter and accept the former, or waive or accept both.
ARTICLE 956
If the legatee or devisee cannot or is unwilling to accept the legacy
or devise, or if the legacy or devise for any reason should become
ineffective, it shall be merged into the mass of the estate, except
in cases of substitution and of the right of accretion.
Effect of Incapacity or Repudiation
If for some reason the instituted heir cannot accept due to predecease,
repudiation or incapacity then follow ISRAI:
1. Check if there is a substitution
2. There is no right of representation in the free portion
3. Check if accretion is proper
4. If not, then proceed to intestacy.
ARTICLE 957
The legacy or devise shall be without effect:
(1) If the testator transforms the thing bequeathed in such a
manner that it does not retain either the form or the
denomination it had;
(2) If the testator by any title or for any cause alienates the thing
bequeathed or any part thereof, it being understood that in the
latter case the legacy or devise shall be without effect only with
respect to the part thus alienated. If after the alienation the thing
should again belong to the testator, even if it be by reason of
nullity of the contract, the legacy or devise shall not thereafter be
valid, unless the reacquisition shall have been effected by virtue
of the exercise of the right of repurchase;
(3) If the thing bequeathed is totally lost during the lifetime of the
testator, or after his death without the heir's fault. Nevertheless,
the person obliged to pay the legacy or devise shall be liable for
eviction if the thing bequeathed should not have been
determinate as to its kind, in accordance with the provisions of
article 928.
When Legacy or Devise is Without Effect
1. Transformation
2. Alienation
3. Loss
[1] Transformation
If the transformation result to the thing not retaining its form or the
denomination it had.
 Form – the external or outward appearance of a thing
 Denomination – the name usually given to it by the public
according to its essential elements
Ex.: Ring is transformed into earrings. Different form and denomination
there is even difference in quantity. Then the legacy is revoked.
[2] Alienation
Alienation whether by sale or donation is an implied revocation of the
legacy or device. It is revoked by operation of law.
 Even if the property shall be reacquired by the testator, the
legacy or devise is still revoked by operation of law, even if
it by reason of the nullity of the contract, what matters is that
it was alienated by the testator.
If there was a sale with a right of repurchase or pacto de retro sale:
 The law will not presume revocation because by reserving
the right to repurchase, the law sees that the testator wanted
to honor the legacy or devise.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA
And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN
If the alienation was attended with vitiated consent:
 The law also cannot presume revocation since there was no
voluntariness on the part of the testator. The law presumes
here that the alienation was voluntary.
 Foreclosure is not covered.
[3] Loss
If the thing bequeathed is totally lost during the lifetime of the testator
or after his death without fault on the part of the heir charged with the
obligation to deliver – the legacy is revoked.
 But it should be a Specific Thing
 If it was a generic thing then the obligation to deliver the
bracelet is not extinguished since any bracelet can just be
deliver.
Nevertheless, the person obliged to pay the legacy or devise shall be
liable for eviction if the thing bequeathed should not have been
determinate as to its kind.
 If a generic legacy for a car is provided and what was
delivered is being claimed by another person and the
legatee is disposed of the car, the law provides that he shall
be liable for the eviction.
 Meaning a new car has to be replaced but this applies only
when the legacy is Generic or Indeterminate.
ARTICLE 958
A mistake as to the name of the thing bequeathed or devised, is of
no consequence, if it is possible to identify the thing which the
testator intended to bequeath or devise.
Effect of Mistake in Name of a Thing
This is immaterial, as long as the property can be identified. Example is
when a table is actually used as a ‘bed’ by the testator.
ARTICLE 959
A disposition in general terms in favor of the testator’s relatives
shall be understood to be in favor of those nearest in degree.
Disposition in General Terms
If the institution states ‘I hereby give 1/4 of my estate to my relatives.’
The relatives meant here are those
1. Direct Line – without limit
2. Collateral Line – up to fifth degree (5th) of consanguinity
Article 959 only allows one rule: Rule on Proximity. The nearest
relatives exclude those who are far, there is no right of representation.
Unlike in reserva troncal where the ‘descending-ascending-collateral’
rule is considered, this does not apply in Article 959.
I hereby give 1/4 of my estate to all those entitled thereto.
Then the legal succession shall apply. Thus Article 959 shall not be
applied. This now pertains to the rule on legal succession where
1. Direct line are favored over the collateral line
2. Descending line are favored over the ascending line
3. There is a right to representation.
END OF SECOND EXAM COVERAGE
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