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SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona


Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

WILLS & SUCCESSION


TITLE IV
Succession
CHAPTER 1
General Provisions

b.

Particular succession which is succession to the


specific portion of the property of the decedent

c.

Contractual succession happens when future


husbands and wives give to each other in their
marriage settlement future property, which shall be
effective upon their death

d.

Freak succession is where there is still succession


even without the intervening effect of succession.
This happens when in a decree of annulment or
separation or nullity of the marriage, the spouses
are ordered to deliver to their children their
presumptive legitime.

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

Succession is a derivative mode of acquisition

Bases of Succession
1. Natural Law
2. Socio-economic postulate prevents wealth from being
stagnant
3. Attribute of ownership

Foreigners can acquire lands in the Philippines only in


case of hereditary succession, which is succession by
operation of law and not by a will

Kinds of Succession
I.
As to effectivity:
a. Inter vivos (donation) effective during the
lifetime of the person
b. Mortis causa (succession) effective upon the
death of the person

3 distinguishing characteristics of a donation


mortis causa:
1. It conveys no title or ownership to the transferee
before the death of the transferor; or what amounts to the
same thing: the transferor should retain ownership (full or
naked) and control of the property
2. Before his death, the transfer should be revocable by
the transferor at will, ad nutum but revocability may be
provided for indirectly by means of a reserved power in
the donor to dispose of the properties conveyed
3. The transfer should be void if the transferor should
survive the transferee
If these 3 characteristics are present, the document is
not a deed of donation but rather, it is a will. It must
comply with the formalities of a will
II. As to whether or not there is a will:
a. Testamentary or Testate Succession if a person
leaves a will
b. Intestate or Legal Succession if a person dies
without leaving a will
III.

As to the transferee or the recipient of the property


a. Compulsory succession or succession to the
legitime Part of property which cannot be disposed
of to anybody because that portion is reserved to his
compulsory heirs. Compulsory heirs are the persons
who cannot be deprived of their inheritance
regardless of the will of their decedent.
b. Voluntary succession or the succession to the
free portion If a person dies, his estate shall be
divided into 2 parts. One part is the legitime which is
reserved for his compulsory heirs and the other part
is the free portion which he can give to anybody

IV.

As to the extent of right and obligations involved:


Universal succession or succession by an heir is
the succession to the universality or the aliquot
portion of the estate of the decedent

The decedent is the person who died whether or


not he left a will
The testator is the person who died who left a will

ARTICLE 776.
The inheritance includes all the property,
rights and obligations of a person which are not
extinguished by his death. (659)

If a deed is a donation, there are certain


formalities that must be observed
If a deed is succession, the formalities will be
different. If it is a will, the person intended it to
be a succession and the formalities shall comply
with the formalities of a will
2 Types of Will:
i. Notarial Will
ii. Holographic Will

a.

ARTICLE 775.
In this Title, "decedent" is the general
term applied to the person whose property is transmitted
through succession, whether or not he left a will. If he left a
will, he is also called the testator. (n)

Inheritance is different from succession because the


latter is a mode of acquisition, by virtue of which the
property, rights and obligations are transmitted.
Property, as defined by law, may be subject of
succession except the following:

1.

Those which are outside the


commerce of men or which are not owned by men
(res nullus)

2.

Those which are owned by


everyone (res communes)
Those which are prohibited by
law
Any property which is not capable
of appropriation

3.
4.

The ownership of organs may be transferred by


donation or by will.
Even if the formalities of the will
are not complied with, as long as the donation was
made in good faith, the will or donation is not valid. It
shall be given effect since the important element is that
the will was made in good faith.

RIGHTS
Purely Personal Rights
GENERAL RULE:
It is not transmissible since it is
extinguished by death
EXCEPTION: It is transmissible:
Article 173 Family Code The action to claim
legitimacy may be brought by the child during
his lifetime and shall be transmitted to the
heirs should the child die during minority or in
a state of insanity. In these cases, the heirs
shall have a period of five years within which
to institute the action.
Examples:
right to parental authority
marital rights
right of a Chinese merchant
right to vote
Patrimonial rights

These are rights which refer to property


GENERAL RULE: Transmissible
Examples:
action for forcible entry/unlawful detainer
action to recover property
EXCEPTIONS:
Extinguished by death as provided by law or agreement
by the parties (ex. agency, commodatum, contract of lease)
OBLIGATIONS
GENERAL RULE: Transmissible
EXCEPTIONS:
1. Purely personal
2. Non-transferable by law
3. Non-transferable by contract or agreement
between the parties.
Examples of obligations extinguished by death:
1. Obligation to pay taxes
2. Criminal liability

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

3. Right to give support


Debts (2 views)
1. Not transmissible since it is actually the estate of the
deceased which pays the debts
2. Transmissible because the shares of the heirs are
reduced by the payment of the debts (preferred view)

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

ARTICLE 777.
The rights to the succession are transmitted
from the moment of the death of the decedent. (657a)

Conditions for Testamentary Succession:


1. There must be a will
2. There should be a designation of heir
3. There must be observance of the formalities required
by law.

PRINCIPLES IN TESTAMENTARY SUCCESSION

Death is a condition for the transmission of a right by


succession.
While your parents are still alive, their properties are still
owned by them. What you have is merely an inchoate
right or an expectancy. It is not an absolute right.

1.

TESTAMENTARY SUCCESSION IS PREFERRED OVER


INTESTATE SUCCESSION
When there is a will, the will has to undergo
probate.
Probate is a proceeding wherein you
determine whether or not the will was validly executed
and whether or not the will was executed by person
who has testamentary capacity.
There is no prescriptive period in the probate of will
as long as there is a will.

2.

DOUBTS MUST BE RESOLVED IN FAVOR OF


TESTACY
If there is doubt as to the validity of a will, the
interpretation wherein the will is given effect should be
preferred.

Conditions for the transmission of a successional right:


1. There should be death (actual or presumed) of the
transferor
2. The rights or properties are transmissible
3. The transferee is alive
Presumed Death

Under ordinary circumstances, 10 years

After the age of 75, 5 years


In these 2 instances, the moment of death is
reckoned after 5 or 10 years, whichever is applicable.

Under extraordinary circumstances, 4 years


In this instance, the moment of death is reckoned
from the moment of disappearance.

ARTICLE 390 (New Civil Code). After an absence of


seven years, it being unknown whether or not the
absentee still lives, he shall be presumed dead for all
purposes, except for those of succession.
The absentee shall not be presumed dead for
the purpose of opening his succession till after an
absence of ten years. If he disappeared after the age
of seventy-five years, an absence of five years shall
be sufficient in order that his succession may be
opened. (n)
ARTICLE 391 (New Civil Code). The following shall be
presumed dead for all purposes, including the
division of the estate among the heirs:
(1) A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who has
not been heard of for four years since the loss of the
vessel or aeroplane;
(2) A person in the armed forces who has taken part
in war, and has been missing for four years;
(3) A person who has been in danger of death under
other circumstances and his existence has not been
known for four years. (n)
ARTICLE 43 (New Civil Code). If there is a doubt, as
between two or more persons who are called to
succeed each other, as to which of them died first,
whoever alleges the death of one prior to the other,
shall prove the same; in the absence of proof, it is
presumed that they died at the same time and there
shall be no transmission of rights from one to the
other. (33)

If there are circumstances which point to the time of


the actual death of the person, then, that time
wherein there is proof should be flowed and not the
presumptions.

In theory, the heirs can immediately dispose of their


properties when the decedent dies because of Article 777.
But in reality, you cannot since the will has to be probated
first.
If you are the sole heir, all you have to do is execute
an Affidavit of Self-Adjudication and follow the process
provided by law
If there is more than one heir, they may execute and
Extrajudicial settlement among themselves and follow the
process provided by law

ARTICLE 778.
Succession may be:
(1)
Testamentary;
(2)
Legal or intestate; or
(3)
Mixed. (n)

Legal or Intestate Succession


1. There is no will
2. The will is not valid at all
ARTICLE 780.
Mixed succession is that effected partly by
will and partly by operation of law. (n)
When mixed succession occurs:
1. When the testator fails to dispose all of his properties in
a will
2. When the will does not validly dispose of all the
property of the testator
ARTICLE 781.
The inheritance of a person includes not
only the property and the transmissible rights and
obligations existing at the time of his death, but also those
which have accrued thereto since the opening of the
succession. (n)

This article refers to after-acquired properties.


Those are acquired from the moment of death onwards
will belong to the devisee, legatee or the heir to whom
the property was given.

Inheritance includes:

The property, transmissible rights and the transmissible


obligations of the decedent to the extent of the value of
the inheritance; and

Those properties, or rights or


obligations, if any, which have accrued since the
opening of the succession.
ARTICLE 782.
An heir is a person called to the
succession either by the provision of a will or by operation of
law.
Devisees and legatees are persons to whom gifts of real
and personal property are respectively given by virtue of a
will. (n)
Heirs

Those who succeed to the universality of the rights,


properties and obligations of the decedent

They are not given specific portions of the property


but aliquot shares
Kinds of Heirs:

Compulsory or forced heirs


are persons who are not deprived of their inheritance
unless there are causes to disinherit them and the
causes are provided by law. LEGITIME is that portion
of the property, rights and obligations of the decedent
which you cannot just dispose of because the law
reserved it for the compulsory heirs.

Legal or intestate heirs are


heirs who inherit by operation of law. The person dies
without a will. Voluntary, testamentary or testate

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

heirs are heirs who will inherit because of the will of the
decedent.

All compulsory heirs are legal heirs.


But not all legal heirs are compulsory heirs. When a
person dies without a will, then, the compulsory heirs
succeed by operation of law. If there is a will but the will
is not valid, then, the compulsory heirs succeed by
operation of law since the will is disregarded.
The free portion may be given to anybody except
those who are prohibited by law to inherit from the
decedent. If there is a will, the free portion is given to the
voluntary heirs
PRETERITION happens when a direct line or a
compulsory heir is omitted form the will. The effect is the
will cannot be given effect. So, there shall be intestacy
wherein the will is disregarded and as if the person died
without a will.

Legatee or Devisee

Legatee succeeds to personal properties

Devisee succeeds to real properties or immovable


properties of the decedent

Distinctions between Heirs & Legatees and Devisees:


HEIRS
1. Succeed by general right
or universal title to all or an
aliquot part of the estate
2.
Heirs exist both in
testamentary
succession
and intestate succession
3. The heir, if compulsory,
succeeds to the inheritance
regardless of the will of the
decedent
4.
Quantity cannot be
determined
until
after
liquidation of properties of
the estate
5.
Heirs represent the
juridical personality of the
deceased,
acquiring
his
property,
rights
and
obligations
6.
Heirs succeed to the
remainder of the estate after
all the debts, devisees and
legatees have been paid

LEGATEES & DEVISEES


1. Succeed by special or
particular title
2. Legatees
exist only in
succession
3. Legatees
succeed only
will

and devisees
testamentary
and devisees
by testators

4. Quantity can easily be


determined
5. Legatees and devisees do
not represent the juridical
personality of the deceased
because it acquires only
properties
6. Legatees and devisees
succeed
only
to
the
determinate thing or amount
given

Importance of distinguishing heirs from legatees and


devisees:
1.
When there is preterition, the instituted
voluntary
heirs
do
not
get
anything.
The
legatees/devisees retain the properties given to them as
long as the legitime is not impaired.
2.
When there is invalid disinheritance, the
instituted voluntary heir gets nothing while the one who
received properties by way of legacy or devise retains the
property given to them as long as the legitimes of the
compulsory heirs are not impaired.
CHAPTER 2
Testamentary Succession
SECTION 1
Wills
SUBSECTION 1
Wills in General
ARTICLE 783.
A will is an act whereby a person is
permitted, with the formalities prescribed by law, to control to
a certain degree the disposition of his estate, to take effect
after his death. (667a)

The making of a will is an act by which a person is


permitted by law to repose his property effective upon his
death. It is not a mode of transferring property because

that is succession. It does not also consist of property,


rights and obligations because that is inheritance.
A will is an instrument wherein certain dispositions
are made by persons to effect mortis causa
Thus, it may be an or an instrument

Elements of a Will:
1. It is strictly a personal act
It cannot be delegated to a third person. The
disposition of the will should be the disposition of the
person. Since it is personal, will-making shall not be
made in public. Even if a will is acknowledged before a
notary public, a will is not a public document. Even a
notary public is not required to keep a copy of the will.
2. There must be animus testandi (intent to make a will)
One should know that the effect of such document
is to transfer ones properties to a particular person
mentioned in the document.
3. The making of a will is a statutory right, not a natural right
4. It is a solemn or formal act
For the will to be valid, each form shall comply with
the rules prescribed by the New Civil Code.
5. It is a unilateral act
The testator cannot condition the validity of his will
upon the consent of another.
6. The testator must be capacitated to make a will
7. It is free from vitiated consent
8. It is essentially revocable and ambulatory
9. It is an individual act, as distinguished from a joint act
The will must contain the act of only one person.
Joint will are prohibited.
10. It disposes of the testators estate in accordance to his
wishes
11. It is effective mortis causa
ARTICLE 784.
The making of a will is a strictly personal
act; it cannot be left in whole or in part to the discretion of a
third person, or accomplished through the instrumentality of
an agent or attorney. (670a)

Holographic wills are supposed to be entirely


written, dated and signed in the hands of the testator.
Even the mechanical act of drafting the will cannot be
delegated to a third person
As to notarial wills, the mechanical act of drafting
the will can be delegated to a third person. But the
content of the will must be the disposition of the
testator himself

ARTICLE 785.
The duration or efficacy of the designation
of heirs, devisees or legatees, or the determination of the
portions which they are to take, when referred to by name,
cannot be left to the discretion of a third person. (670a)

Testamentary acts which cannot be delegated to third


persons:
1. The duration of designation of the heirs, devisees
or legatees
2. The efficacy of the designation of the heirs,
devisees or legatees
3. The determination of the portions which the heirs,
devisees, or legatees are to take, when refereed to
by name
ARTICLE 786.
The testator may entrust to a third person
the distribution of specific property or sums of money that
he may leave in general to specified classes or causes, and
also the designation of the persons, institutions or
establishments to which such property or sums are to be
given or applied. (671a)

What is entrusted to a third person is


distribution of specific property or sums of money

the

Requisites of Article 786:


1.
The testator entrusts to a third person
2.
The distribution of specific property or sums of
money
3.
These specific property or sums of money are left
in general to specific classes or causes
4.
There is the designation of the persons, institutions
or establishments to whom such property or sums of
money are to be given or applied

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Distinction between Article 785 and Article 786:


Article 785
The
heirs,
legatees
devisees are named.

or

There is no specific property


or sums of money.
What is delegated is the
determination of the portion
which shall go to the named
heir, legatee or devisee.

Article 786
There is no such heir,
legatee or devisee that is
named
There is specific property or
sums of money.
There is a determination of
the persons, establishments
or institution or to whom the
specific property or sums of
money is to be given or
applied.

ARTICLE 787.
The testator may not make a testamentary
disposition in such manner that another person has to
determine whether or not it is to be operative. (n)
Article 785
This refers more to
institution of the heirs.

the

Article 787
This refers more on the
designation or disposition of
the properties. This is not
valid because the disposition
is subject to the will of a 3 rd
person. Whether or not a
disposition shall be valid
cannot be left to the will of a
3rd person.

ARTICLE 788.
If a testamentary disposition admits of
different interpretations, in case of doubt, that interpretation
by which the disposition is to be operative shall be preferred.
(n)

The will must be interpreted liberally in favor of


validity
In the interpretation of the will, the wishes of the
testator is the first and principal law

ARTICLE 789.
When there is an imperfect description, or
when no person or property exactly answers the description,
mistakes and omissions must be corrected, if the error appears
from the context of the will or from extrinsic evidence,
excluding the oral declarations of the testator as to his
intention; and when an uncertainty arises upon the face of the
will, as to the application of any of its provisions, the testator's
intention is to be ascertained from the words of the will, taking
into consideration the circumstances under which it was made,
excluding such oral declarations. (n)
2 KINDS OF AMBIGUITY
1. PATENT OR EXTRINSIC AMBIGUITY appears on
the face of the will itself.
2. LATENT OR INTRINSIC AMBIGUITY does not
appear on the face of the will. Ambiguity is discovered by
examination outside the will.
4 kinds of Latent or intrinsic ambiguity
1. Imperfect description of the heirs, legatees or devisees
2. Imperfection description of the property to be given
3. When 2 or more persons meet the description
4. When 2 or more things/properties meets the description
How to resolve the ambiguities?
1. Intrinsic Evidence You cure the ambiguity by
examining the will. You examine the words used in
the will.
2. Extrinsic Evidence/Evidence Aliunde Evidence
that is not found in the will but found outside of the
will, such as letters, documents, persons or
investigation
Oral evidence

Supposed oral declarations of the testator


cannot be used because the testator is already dead

Oral testimonies of other persons can be


used for as long as they are not testifying on the
supposed oral declarations of the testator
Dead Mans Statute

In an action where a claim is filed against the estate,


where the plaintiff is the claimant and the defendant is
the executor of the deceased person, both parties are

prohibited to testify as to
deceased said in his lifetime

something

which

the

ARTICLE 790.
The words of a will are to be taken in their
ordinary and grammatical sense, unless a clear intention to
use them in another sense can be gathered, and that other
can be ascertained.
Technical words in a will are to be taken in their
technical sense, unless the context clearly indicates a
contrary intention, or unless it satisfactorily appears that the
will was drawn solely by the testator, and that he was
unacquainted with such technical sense. (675a)
Ordinary Terms
GENERAL RULE: Give it an ordinary or literal meaning
EXCEPTION: If there is an intention to give it another
meaning
Technical Terms

These are used by persons engaged in specialized


activities in certain fields or profession
GENERAL RULE: Give it a technical meaning
EXCEPTIONS:
1) If the testator himself made the will and it is very clear
that he is unacquainted or unfamiliar with the term
2) If it is really the intention of the testator to give the
technical word an ordinary meaning
ARTICLE 791.
The words of a will are to receive an
interpretation which will give to every expression some
effect, rather than one which will render any of the
expressions inoperative; and of two modes of interpreting a
will, that is to be preferred which will prevent intestacy. (n)
2 parts of Article 791:
1. The will must be interpreted as a whole
2. Testacy favored over intestacy
ARTICLE 792.
The
invalidity
of
one
of
several
dispositions contained in a will does not result in the
invalidity of the other dispositions, unless it is to be
presumed that the testator would not have made such other
dispositions if the first invalid disposition had not been
made. (n)
GENERAL RULE: The invalid dispositions will not affect the
valid ones. The will remains valid.
EXCEPTION:
Entire will is invalidated or the valid
dispositions are invalidated is if it is the intention of the
testator that both the valid and invalid dispositions are to be
indivisible, such that the other dispositions cannot be given
effect if the other dispositions turn out to be invalid.
ARTICLE 793.
Property acquired after the making of a
will shall only pass thereby, as if the testator had possessed
it at the time of making the will, should it expressly appear
by the will that such was his intention. (n)

Article 793 covers those after-acquired properties after


the execution of the will up to the time of the death
Article 78 covers properties arising from the moment of
death onwards
Article 793 only applies to devices and legacies and not
to inheritance because inheritance comprises the
universality or an aliquot portion of the estate

GENERAL RULE:
Only those properties owned by the
testator at the time of the execution of the will are included.
Those acquired after the execution of the will are excluded.
EXCEPTIONS:
1. If the testator expressly provides in his will that
properties acquired AFTER the execution of the will are
included.
2. Article 836 the effect of the execution of a codicil
3. Article 930 legacy or device belonging to another
person is void as a general rule because the testator
cannot give what he does not own. But if the testator
later acquires the ownership, the legacy or devise can
be given effect
4. Article 935 legacy of credit or remission of debt
ARTICLE 794.
Every devise or legacy shall convey all the
interest which the testator could devise or bequeath in the
property disposed of, unless it clearly appears from the will
that he intended to convey a less interest. (n)

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

GENERAL RULE: All of the testators rights in a property are


transmitted because it is presumed that the testator intended
to dispose his whole interest in the property.
EXCEPTIONS:
1. If it clearly appears in the will that the testator merely
intend to convey a less interest
2. If the testator clearly provided that he conveys a greater
interest
3. The testator can also give property which he knows is not
owned by him
ARTICLE 795.
The validity of a will as to its form depends
upon the observance of the law in force at the time it is made.
(n)
Kinds of validity of wills:
1. FORMAL or EXTRINSIC VALIDITY refers to the forms
and solemnities and the formalities that have to be conformed
and complied with in the execution of the will.
2. INTRINSIC VALIDITY refers to the legalities of the
provisions of wills.
EXTRINSIC VALIDITY
ARTICLE 17 NEW CIVIL CODE. The
forms
and
solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the
country in which they are executed.
When the acts referred to are executed before
the diplomatic or consular officials of the Republic of
the Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in
their execution.
Prohibitive laws concerning persons, their acts or
property, and those which have for their object public
order, public policy and good customs shall not be
rendered ineffective by laws or judgments
promulgated, or by determinations or conventions
agreed upon in a foreign country. (11a)
Extrinsic Validity can be viewed from 2 points:
a. Viewpoint of TIME the extrinsic validity of a will
depends upon the observance of the law enforced at the time
the will is made, not at the time of death and not at the time
of probate. Testator cannot possibly and is not expected to
know what laws will govern in the future.
b. Viewpoint of PLACE/COUNTRY
i.
Testator is a Filipino who
executes a will in the Philippines Philippine laws
shall be applied
ii.
Testator is a Filipino who
executes a will abroad before the diplomatic or
consular officials of the Philippines Philippine
laws shall be applied
iii.
Testator is a Filipino who
executes a will abroad not before a diplomatic or
consular officials of the Philippines

A.

Law of the place where he


may be Article 815

B.

Law of the place where he


executes the will Article 17

C.
iv.

v.

Philippine law Article 815


Testator is an alien who
executes a will abroad
A.
Law of the place where the
will is executed Article 17
B.
Law of the place of his
residence or domicile Article 816
C.
Law of his own country or
nationality Article 816
D.
Philippine law Article 816
Testator is an alien who
executes a will in the Philippines

A.
B.

Law of the place where the


will is executed (Philippines) Article 17
Law of his own country or
nationality Article 817

ARTICLE 815.
When a Filipino is in a foreign country, he is
authorized to make a will in any of the forms established by

the law of the country in which he may be. Such will may be
probated in the Philippines. (n)
ARTICLE 816.
The will of an alien who is abroad
produces effect in the Philippines if made with the
formalities prescribed by the law of the place in which he
resides, or according to the formalities observed in his
country, or in conformity with those which this Code
prescribes. (n)
ARTICLE 817.
A will made in the Philippines by a citizen
or subject of another country, which is executed in
accordance with the law of the country of which he is a
citizen or subject, and which might be proved and allowed
by the law of his own country, shall have the same effect as
if executed according to the laws of the Philippines. (n)

The legislature cannot validate a void will

INTRINSIC VALIDITY
Intrinsic Validity can be viewed from 2 points:
a. Viewpoint of TIME law enforced at the time of the
death of the decedent
ARTICLE 2263 NEW CIVIL CODE.
Rights to
the inheritance of a person who died, with or
without a will, before the effectivity of this Code,
shall be governed by the Civil Code of 1889, by
other previous laws, and by the Rules of Court. The
inheritance of those who, with or without a will, die
after the beginning of the effectivity of this Code,
shall be adjudicated and distributed in accordance
with this new body of laws and by the Rules of
Court; but the testamentary provisions shall be
carried out insofar as they may be permitted by
this Code. Therefore, legitimes, betterments,
legacies and bequests shall be respected;
however, their amount shall be reduced if in no
other manner can every compulsory heir be given
his full share according to this Code. (Rule 12a)
Example: A will was executed in 1910 without giving
anything to his illegitimate child. If he died under the Old
Civil Code, the illegitimate child does not have a
successional right. If he died under the New Civil Code,
illegitimate children have successional rights. Since
the testator died during the effectivity of the New Civil Code,
the will is intrinsically void.
b. Viewpoint of PLACE/COUNTRY law enforced is the
national law of the decedent
ARTICLE 16 NEW CIVIL CODE. Real property as
well as personal property is subject to the law of
the country where it is situated. iatdc2005
However,
intestate
and
testamentary
successions, 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
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. (10a)
2 Proceedings if a person dies with a will:
1. Probate proper proceeding instituted to determine
the genuineness and authenticity of a will. It is
concerned only with the extrinsic validity of the
will.
2. Distribution proceedings intrinsic validity of the
will is considered
GENERAL RULE: Foreign laws may not be taken judicial
notice of and has to be proven like any other fact in dispute
between the parties in any proceeding
EXCEPTIONS:
1.
If the foreign laws are within the actual
knowledge of the court; or
2.
When these laws have been considered before
by the court in a previous case and the parties do not
oppose as to the consideration of the court as to the
existence of the foreign law.
Instances when the intrinsic validity of wills of
foreigners is governed by Philippine laws

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

1. DOCTRINE OF PROCESSUAL PRESUMPTION


In the absence of evidence of foreign laws, it is
presumed that it is the same as Philippine law.
2. RENVOI DOCTRINE (referring back)
The testator is a Philippine resident and a national of
another country. The national law of the decedent says
that the intrinsic validity of a will should be governed by
the domiciliary law or the law of his residence or domicile.
Hence, Philippine law will be applied.
SUBSECTION 2
Testamentary Capacity and Intent

Testamentary power refers to the right or privilege


given by the state to the individual to execute wills.
Testamentary capacity refers to the qualification of
a person to execute a will.
A person may have testamentary power but no
testamentary capacity
There are persons who have testamentary capacity
but they do not have testamentary power, like in some
other countries
But they may be used interchangeably

KINDS OF TESTAMENTARY CAPACITY


1.
Active Testamentary Capacity refers to the
qualifications of persons to execute wills
2.
Passive Testamentary Capacity refers to the
qualifications of persons to receive by virtue of a will. This
would be discussed more exhaustively under the chapter
on the capacity to succeed.
ARTICLE 796.
All persons who are not expressly prohibited
by law may make a will.

2.
3.

ARTICLE 800.
The law presumes that every person is of
sound mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of sound
mind at the time of making his dispositions is on the person
who opposes the probate of the will; but if the testator, one
month, or less, before making his will was publicly known to
be insane, the person who maintains the validity of the will
must prove that the testator made it during a lucid interval.
(n)
When testator is presumed of unsound mind:
(1) When the testator, one month, or less, before making his
will was publicly known to be insane;
(2) When the testator was judicially declared insane before
making his will;
(3) When the testator has Insanity of a general or
permanent nature shown to have existed at one time.
How to
1.
2.
3.
4.

Theory under the Spanish Law


Under the Spanish law, the 18 th birthday should have
passed or commenced before the person can execute a
will. We follow Spanish Law
Theory under the American Law
It is sufficient that the day preceding ones birthday
has already commenced.
Theory under the Civil Code
You are already 18 years old 4 days before your
birthday because under the Civil Code, 1 year is 365 days.
And in 18 years, there are 4 leap years. So, 4 days prior
to your birthday, under the Civil Code, you are already 18
years of age.

ARTICLE 803.
A married woman may dispose by will of
all her separate property as well as her share of the conjugal
partnership or absolute community property. (n)
What can the married woman or man disposed of in a
will?
1. He/she may dispose of his/her separate property; or
2. He/she may dispose of his/her share in the
conjugal/community property.

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

Degrees of Mental Incapacity or Incapacity


1.
Idiots IQ average of 25; congenitally and
intellectually deficient; considered as of unsound mind in
succession
2.
Imbecile IQ average of 26 to 50; mentally deficient;
considered as of unsound mind in succession
3.
Moron IQ average of 51 to 70; they can do reading
and writing; they can be self-supporting; considered as of
sound mind in succession

Testator must be of unsound mind AT THE TIME of


the execution of the will
This is the PRINCIPLE OF SUPERVENING
CAPACITY

ARTICLE 802.
A married woman may make a will without
the consent of her husband, and without the authority of the
court. (n)

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

3 Requisites of a sound mind:


1. The testator must know the nature of the estate to be
disposed of
2. He must know the proper objects of his bounty
3. He must know the character of the testamentary act

establish evidence of soundness of mind?


You may use the testimony of the notary public
The testimony of the attesting witnesses
The testimony of the attending physician
The testimony of other witnesses

ARTICLE 801.
Supervening
incapacity
does
not
invalidate an effective will, nor is the will of an incapable
validated by the supervening of capacity. (n)

Testamentary capacity is the general rule

ARTICLE 797.
Persons of either sex under eighteen years
of age cannot make a will. (n)
How do you compute 18 years?
1.

GENERAL RULE: Testamentary incapacity invalidates the


whole will
EXCEPTION: If the incapacity proceeds from a delusion on a
particular subject and the product of such delusion might be
declared invalid without affecting other portions of the will

If the spouse disposes of the entire community


property, the disposition is only valid with respect to the
portion pertaining to the share of the spouse who is the
testator. The remaining portion becomes invalid. But if
the spouse knows that he or she has no right to dispose
of the share or his or her spouse but still he or she
provides in the will that such portion or the entire
portion be given to a certain person, in that case, you
will learn later on that it is valid. What is to be done is
for the estate to acquire the other portion.

SUBSECTION 3
Forms of Wills
2 Kinds of Wills:

1.

ORDINARY OR NOTARIAL WILL that which requires,


among other things, an attestation clause and
acknowledgement before a notary public. This will is
ordinarily executed with the aid of a lawyer. There are
witnesses and attestation clause.

2.

HOLOGRAPH OR HOLOGRAPHIC WILL wills which


are ENTIRELY written, dated and signed in the
handwriting of the testator. This also requires NO
attestation clause or witnesses or acknowledgment.

ARTICLE 804.
Every will must be in writing and executed
in a language or dialect known to the testator. (n)

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

No such thing as oral wills in the Philippines


Nuncupative Wills are wills orally made by testator
in contemplation of death and before competent
witnesses. Nuncupative wills are not recognized in the
Philippines.
The presumption is that the testator knew the
language used in writing the will
There is no statutory requirement that the will should
allege that the language used therein is understood by
the testator
There is no need to state in the Attestation clause
that the will is in the language or dialect known to the
testator
That the will is in a language known to the testator
can be proved by extrinsic evidence or even by parol or
oral evidence
If the will is executed in the locality where the
testator lives, it is presumed that indeed the testator
during his lifetime knew or understood the language or
dialect in that locality
The testator must know the language or dialect. No
amount of interpretation or explanation will cure the
defect
Attesting witnesses are not required to know the
language used in the body of the will

ARTICLE 805.
Every will, other than a holographic will,
must be subscribed at the end thereof by the testator himself
or by the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other person
to write his name, under his express direction, in the presence
of the instrumental witnesses, and that the latter witnessed
and signed the will and all the pages thereof in the presence of
the testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them. (n)
1.
2.

Consists in witnessing the


testators execution of the will
in order to see and take note
mentally that those things are
done which the statutes
require for the execution of
the will and that the signature
of the testator exist as a fact.
Mental act of the senses. You
see, smell, feel etc.

The
signing
of
the
witnesses name upon the
same
paper
for
the
purpose of identification
of such paper as a will
executed by the testator.

The purpose is to render


available
proof
of
the
authenticity of the will and its
due execution.
The act of the witnesses

The
purpose
identification.

To attest a will is to know that


it was published as such and
to certify the fact required to
constitute an actual or legal
publication.

ATTESTATION

SUBSCRIPTION

act

of

the
is

May be the act of the


testator when the testator
signs the will or the
witnesses if the witnesses
affixed their signature in
the will.
To subscribe a paper
published as a will is only
to write on the same
paper then names of the
witnesses for the sole
purpose of identification.

Tests of Presence
a. Test of vision
b. Test of position
c. Test of mental apprehension
d. Test of available senses
3.

The testator or the person requested


by him to write his name and the credible
witnesses of the will shall sign each and every
page of the will, on the left margin, except the
last page

Marginal witnesses are also the


subscribing witnesses

Purpose of the signing at the lefthand margin of the will is to identify the pages and
to prevent fraud
GENERAL RULE: Absence of signature on the first page
of the will invalidates the will.
EXCEPTIONS:
1. If the will contains only one page, then logically
that one page already has the signature of the testator
because he is required to sign at the end of the
disposition and that also contains the signatures of the
witnesses in the attestation clause.
2. Inadvertent lifting of pages.

4.

All the pages shall be numbered


correlatively in letters placed on the upper part
of each page

As long as it the page number


has a physical location, the will is still valid. The
page number may even be incorporated in the text
of the document itself

If the will has only one page, the


will is valid because you can easily detect whether
there is loss of pages because if the one page is
lost then there is no will to speak of

Purpose of numbering the pages


of a will:
a)
To guard against fraud;
b)
To forestall any attempt
to suppress or substitute any of the pages;
c)
To afford means of
detecting the loss of any of its pages;
d)
To prevent any increase
or decrease in the pages.

Article 805 only applies to notarial wills


The requirements under Article 805 are to be strictly
construed

Formal Requirements under Article 805:


1.
Subscribed at the end by the testator
himself or the testators name is written by some
other person in the presence and under the express
direction of the testator

Subscription means the physical act


of signing

E-signatures cannot be affixed in a


will because e-signatures are applicable only to
transactions and contracts

Signature must appear not the


physical end but at the logical end of the will

The
presence
of
additional
dispositions in a notarial will after the signature of the
testator invalidates the entire will because it affects
the form
2.
Attested and subscribed by three or
more credible witnesses in the presence of the
testator and of one another

in the presence of the testator and


of one another not actually seeing but in a position
to see if you want to see without any physical
obstruction

Mechanical
hand.

ATTESTATION

It is the act of
witnessing the execution of the will. It is a mental act.

Attestation
clause is that clause of an ordinary or notarial will
wherein the witnesses certify that the instrument has
been executed before them and the manner of
execution of the same

What do the
subscribing witnesses attest to?

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

1.

They attest to the genuineness of the signature of the


testator
2. They attest to the due execution of the will
What should
the attestation clause state?
1.
The number
of pages used upon which the will is written
2.
The fact that
the testator signed the will and every page thereof, or
caused some other person to write his name, under
his express direction;
3.
The
signing
by the testator or by the person requested by him in
the presence of the instrumental witnesses; and
4.
That
the
instrumental witnesses witnessed and signed the will
and all he pages thereof in the presence of the
testator and of one another.

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

Acknowledg
ment is a statement made by the notary public that the
testator and the witnesses have personally come before
him, that they voluntarily executed the will and that they
understood the contents.
To
acknowledge means to admit, to avow, to own as
genuine
A holographic
will need not be acknowledged before a notary public
The testator
acknowledges the execution of the will. The witnesses
acknowledge the attestation clause.
Acknowledg
ment need not be made in the presence of the testator
and each and everyone of the witnesses. It is just
required that the testator and the witnesses appear
before the notary public, not actually at the same time
It
is
not
required that the notary public before whom the will is
acknowledged be present during the execution of the will
Absence
of
an acknowledgment is a fatal defect

ARTICLE 807.
If the testator be deaf, or a deaf-mute, he
must personally read the will, if able to do so; otherwise, he
shall designate two persons to read it and communicate to
him, in some practicable manner, the contents thereof. (n)
ARTICLE 808.
If the testator is blind, the will shall be read
to him twice; once, by one of the subscribing witnesses, and
again, by the notary public before whom the will is
acknowledged. (n)
ARTICLE 809.
In the absence of bad faith, forgery, or fraud,
or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved that
the will was in fact executed and attested in substantial
compliance with all the requirements of article 805. (n)

Article
809
gives the rule on substantial compliance with respect
to the attestation clause
There
is
substantial compliance when there has been an
HONEST ATTEMPT on the part of the testator to comply
with the formal requisites provided by law but the
compliance is only substantial and not literal but the
purpose of the law is substantially accomplished although
not strictly followed
As
to
marginal signatures, there is no particular requirement
that it should really appear on the left margin because the
only purpose of marginal signatures is for identification.
As
to
attesting signatures, the attesting witnesses are supposed
to own the statements mentioned in the attestation
clause. Therefore, their signatures should appear at the
bottom of the attestation clause. If you just write on the

margin, the purpose here is not to own the statements


mentioned here but just to identify this page, later on,
as the same page which you attested before.
Requisites of Article 809:
1. The defects and imperfections refer to the form of
the attestation or the language used therein;
2. There is no bad faith, forgery or fraud, or undue or
improper pressure and influence;
3. The will was executed and attested in substantial
compliance with all the requirements; and
4. The fact of such execution and attestation is
proved.
Defects or imperfections excused under Article 809:
1. Defects/imperfections in the form of attestation
clause;
2. Defects/imperfections in the language used in the
attestation clause.
Formal requisites to be observed in the execution of
Notarial Wills:
1.
The will must be in writing (Article 804);
2.
It must be in the language or dialect known to the
testator;
3.
The will must be signed by the testator or by
another person in his presence or under his express
direction (Article 805);
4.
That the signing by the testator or by the person
under his express direction and in his presence must be
done in the presence of at least 3 instrumental
witnesses;
5.
That the will is attested and subscribed by at least
3 credible witnesses in the presence of the testator and
of each and every one of them;
6.
That the will must be signed by the testator and by
at least 3 credible witnesses on the left hand margin on
each and every page;
7.
That the will must be numbered correlatively in
letters;
8.
That the signing by the 3 witnesses must be done
in the presence of the testator and each and every one
of them;
9.
There must be an Attestation clause stating therein
the number of pages upon which the will is written, a
statement that the testator signed the will or another
person signed the will under the express direction of the
testator;
10.
The will is signed at the left margin by the testator
and the 3 instrumental witnesses in the presence of the
testator and of one another;
11.
The will must be acknowledged before a notary
public (Article 806);
12.
The will must be read twice by 2 persons
designated by the testator if the testator is deaf or deafmute (Article 807);
13.
If the testator is blind the will must be read to him
once, by one of the subscribing witnesses, and again,
by the notary public (Article 808); and
14.
There must be substantial compliance with all the
requirements of the law (Article 809).
ARTICLE 810.
A person may execute a holographic will
which must be entirely written, dated, and signed by the
hand of the testator himself. It is subject to no other form,
and may be made in or out of the Philippines, and need not
be witnessed. (678, 688a)

A holographic will is a will that is entirely written,


dated and signed by the hand of the testator himself
It is important to know the date of execution
because after the effectivity of the Spanish Civil Code,
which was overtaken by the Code of Civil Procedure
August 7, 1901 August 1950 holographic wills,
during that period, were not allowed.
Strictly speaking, in notarial wills, attestation
clause is not part of the will because it contains no
dispositions. The fact that the attestation clause is
typewritten will not invalidate the will.

Requisites in the execution of holographic wills:


1. It must be written in a language or dialect known to
the testator
2. It must be ENTIRELY written by the testator;
3. It must be dated in the hand writing of the testator;

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

4.
5.

It must be signed in the hand writing of the testator;


and
It must be with animus testandi.

ARTICLE 811.
In the probate of a holographic will, it shall
be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such
witnesses shall be required.
In the absence of any competent witness referred to in
the preceding paragraph, and if the court deem it necessary,
expert testimony may be resorted to. (691a)

Probate is the allowance of the will by the court after


its due execution is proved
Questions addressed during probate proceedings:
question of identity, question of testamentary capacity
and question of due execution
If probate is UNCONTESTED, one witness who knows
the hand writing of the testator must be presented and
who must explicitly declare that the will and the signature
are in the handwriting of the testator. EXPLICIT meaning
you must possibly and unconditionally declare
If probate is CONTESTED, at least 3 of such witnesses
should be presented
A photocopy or carbon copy of a holographic is
allowed

GENERAL RULE: The requirement of presenting an expert


witness is discretionary on the part of the court.
EXCEPTION: It is mandatory when after the presenting
witnesses who allegedly know the hand writing of the testator,
the court still is not convince as to the authenticity and
genuineness of the will then the court should require expert
testimony.

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

*** Articles 815, 816 and 817 were previously discussed


under extrinsic validity of wills from the viewpoint of place
or country
ARTICLE 818.
Two or more persons cannot make a will
jointly, or in the same instrument, either for their reciprocal
benefit or for the benefit of a third person. (669)

ARTICLE 812.
In holographic wills, the dispositions of the
testator written below his signature must be dated and signed
by him in order to make them valid as testamentary
dispositions. (n)

If there is no signature and date, then it is presumed


that the testator has no testamentary intent as to his
additional dispositions
If dated without signature, the additional disposition
is void.
If signed only without date, the additional
disposition is void. But the holographic will itself is not
affected
With respect to notarial wills, the presence of these
additional dispositions will invalidate the entire will
because in a notarial will, the signature should appear at
the logical end. Those additional dispositions after the
signature will invalidate the entire will.

ARTICLE 813.
When a number of dispositions appearing in
a holographic will are signed without being dated, and the last
disposition has a signature and a date, such date validates the
dispositions preceding it, whatever be the time of prior
dispositions. (n)

If the dispositions are merely signed without the date,


and the last disposition is signed and dated, the effect is
that it validates the disposition preceding it.
If the additional dispositions in a holographic will are
not in the handwriting of the testator and they are not
signed by the testator, then, these additional dispositions
are not valid but the will itself remains valid.
But, if these additional dispositions are signed by the
testator, the testator is owning or adopting the additional
dispositions as his own. They will now form part of the will
because it now owned by the testator or adopted. In that
case, the entire will is void. The will now is not entirely in
the handwriting of the testator.
Signed but not dated and the last disposition is
signed and dated validated
Date only and the last disposition is dated and signed
only the last disposition is valid, all the previous
dispositions are void because the law says signed not
dated. Only the disposition unsigned is invalid.
Not signed and not dated even if the last disposition
is signed and dated void

The insertion, cancellation erasure or alteration


mentioned in Article 814 are the ones written in the
hand writing of the testator
Insertion, cancellation, erasure or alteration, is not
per se prohibited as long as they are authenticated by
the full signature of the testator
If the insertion, cancellation, erasure or alteration
does not bear the signature of the testator:
GENERAL RULE: Only the erasure or insertion is void.
The entire will itself is valid.
EXCEPTION: When this insertion, cancellation, erasure
or alteration is made in an essential part of the will.
When this insertion, cancellation, erasure or alteration
will affect the essence of the will then not only the
insertion, cancellation, erasure or alteration is void but
the entire will itself.

JOINT WILL is one wherein the same testamentary


instrument is made as the will of 2 or more persons and
it is jointly executed and signed by them.
MUTUAL WILLS or RECIPROCAL WILLS are wills
of 2 persons wherein the disposition of one is made in
favor of the other and the other also makes dispositions
in favor of the other. This is also called TWIN WILLS.
The Mutual or reciprocal wills are embodied in separate
instruments.
When the 2 dispositions are made in the same will,
it becomes a joint will. Now, we have a Joint and Mutual
will. When you have a Joint and Mutual will, it is
prohibited under Article 818.
Article 818 may cover a joint and mutual will or
joint will wherein the benefit is not for the 2 parties who
execute the will but for a third person.
Not all mutual and reciprocal wills are joint wills.

Why are joint wills not allowed?


1. It tends to convert a will into a contract
2. It destroys the character of wills as a strictly
personal act
3. It runs counter to the idea that wills are essentially
revocable or ambulatory;
4. It may subject one to undue influence. It induces
Parricide.
5. It makes probate more difficult especially if the
testators dies at different times.
ARTICLE 819.
Wills, prohibited by the preceding article,
executed by Filipinos in a foreign country shall not be valid
in the Philippines, even though authorized by the laws of the
country where they may have been executed. (733a)

Joint wills executed by a Filipino in a foreign country


are not valid in the Philippines, even though allowed in
the place of execution
Article 819 is not applicable to foreigners executing
their will. If a joint will is executed by a foreigner
abroad and it is valid in the place of execution, it shall
be recognized by our courts, because of lex loci
celebrationes (law of the place of execution). If it is
valid in the place of execution it is valid here in the
Philippines.
If a joint will is executed by a Filipino and a
foreigner, the will is void as to the Filipino and valid with
respect to the foreigner.
If a foreigner executes a joint will in the Philippines:
1st view: It is valid because if it is allowed under his
national law, it should be allowed here in the Philippines
under Art 817.
2nd view: By reason of public policy, it is void
because under Article 17, our laws cannot be
subrogated by the laws promulgated in other countries.
SUBSECTION 4

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Witnesses to Wills
ARTICLE 820.
Any person of sound mind and of the age of
eighteen years or more, and not blind, deaf or dumb, and able
to read and write, may be a witness to the execution of a will
mentioned in article 805 of this Code. (n)

A blind person, under Article 808, can be a testator.


But he cannot be a witness

the compulsory heirs in the will, it is void if such


compulsory heir is also one of the 3 witnesses.
ARTICLE 824. A mere charge on the estate of the testator
for the payment of debts due at the time of the testator's
death does not prevent his creditors from being competent
witnesses to his will. (n)

ARTICLE 821.
The following are disqualified from being
witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a
document, perjury or false testimony. (n)
Qualification of witnesses to a will:
1. He must be of sound mind
2. At least 18 yrs of age
3. Not blind, deaf or dumb
4. Able to read and write;
5. Domiciled in the Philippines
6. Not convicted of falsification of document, perjury of false
testimony
Essential elements of domicile:
1. The fact of residing, or the physical presence in a fixed
place
2. The intention of remaining permanently, or the animus
manendi

These disqualifications apply only if the will is


executed in the Philippines
Conviction here should be by final judgment
If pardoned and the pardon is by reason of innocence
then you become qualified again to become a witness to a
will because when you were acquitted because of
innocence, that means you are trustworthy as witness.
If the pardon is by reason of an executive clemency,
you are still disqualified because the pardon erases only
the penalty or the civil consequences of the conviction but
it does not change the fact that you are dishonest and
untrustworthy.
A notary public cannot be one of the attesting
witnesses

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

As long as the witness is qualified at the time of the


execution of the will, it does not matter if subsequently he
becomes incapacitated. The validity of the will remains.

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

This article refers to an attesting witness to the


execution of the will but at the same time he is a devisee
or legatee in that will
The will is still valid but he is disqualified from
receiving the devise or legacy
Even if the attesting witness is not the devisee or
legatee himself but his spouse, the parents, the child of
that witness, so the mother of the attesting witness, the
will is still valid but such person cannot receive the legacy
or devise
But this article will not apply if there are more than 3
witnesses.
In voluntary heirs, the inheritance which they are to
receive under the will is void. Voluntary heirs are those
who receive by virtue of the liberality by the testator but
they do not receive something if the testator does not
provide for them.
As to compulsory heirs, they may still get their
legitime. But with respect to the free portion accorded to

A creditor is not disqualified to receive if the


testator provides in the will that such portion shall be
given to the said creditor as payment for an obligation.
Whether or not he is instituted in the will, the creditor is
entitled to be paid for his credit.
SUBSECTION 5
Codicils and Incorporation by 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. (n)

The validity of the codicil depends upon the validity


of the will
If the provisions of the will and the codicil are
inconsistent, the codicil should prevail because the
purpose of a codicil is to amend, alter, or add to a
previously executed will.

CODICIL
When you execute a codicil
after you execute a will, the
codicil is taken as a 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 the
codicil are taken as one.

NEW WILL
When
you
say
after
executing the first will, you
again execute another will
then the new will 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 revoke as a general rule.
When you execute a new
will, they are separate. The
one revoking the other.

ARTICLE 826.
In order that a codicil may be effective, it
shall be executed as in the case of a will.
2 kinds of Codicil:
1.
NOTARIAL CODICIL it follow the rules required by
law for notarial will.
2.
HOLOGRAPHIC CODICIL it follow the rules required
by law for holographic will

If the codicil does not follow the requirements of


the law, the codicil is void. But the invalidity of the
codicil will not affect the validity of the will.

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

This is the Rule on Incorporation by Reference.


It is incorporation of an intrinsic or separate document
or paper into a will by reference so as to become a part
thereof and probated as such.

Requisites of Incorporation by Reference:

10

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

1.
2.
3.
4.

The document or paper referred to in the will


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

Requirements to be stated in the face of the will:


1. The fact that you are referring to the document or paper
2. The clear description and identification of the document
3. The number of pages
Requirements to appear on the face of the document to
be incorporated or being referred to:
1. The signature of the testator;
2. The signature of the witnesses
Requirements that can be proved by extrinsic evidence:
1. That the document is inexistence at the time of the
execution of the will;
2. That the document is the one being referred to in the
will.
GENERAL RULE: Only notarial wills shall have incorporation by
inference because:
1.
These documents under Article 827 have
to be signed by the testator and the witnesses. In notarial
wills, there are witnesses. In holographic wills, there are
no witnesses.
2.
In a notarial will, the contents can either
be in the handwriting of the testator, typewritten or a
combination.
When you say documents to be
incorporated into the will, these documents may either be
typewritten or in the hand of the testator.
EXCEPTION: It may be a holographic will:
1.
When the holographic will has at least 3 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, what we have is a
purely holographic will.
You may have a valid
incorporation by reference.
SUBSECTION 6
Revocation of Wills and Testamentary 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. (737a)

Revocation is an act of the mind terminating the


potential capacity of a will to operate at the death of the
testator manifested by some outward and visible act or
sign symbolic thereof
GENERAL RULE: The testator can always revoke his will during
his lifetime
EXCEPTION: If the testator during his lifetime loses
testamentary capacity or becomes of unsound mind.
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. (n)

If the revocation is made within the Philippines we


only have to comply with the Philippine law regardless of
the nationality or domicile
If the revocation is made outside the Philippines by a
non-resident (Filipino or foreigner):
1.
The law of the place where the will was
MADE (not where the will is revoke)
2.
The law of the place of the place of
DOMICILE of the testator
If the revocation is made outside the Philippines by a
resident (Filipino or foreigner):

1.
2.

The law of the place of the REVOCATION


The law of the place of DOMICILE
In revocation, the national law has no revocation

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)
3 ways 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 means of an overt act
Acts considered by law as an act of revocation:
1.
Article 957 of the NCC When after the
testator has made a will, he sells, donate the legacy or
devise
2.
Article 106 of the FC Provisions in the will
in favor of the spouse who has given cause to legal
separation
3.
Article 1032 of the NCC - When an heir,
legatee or devisee commits an act of unworthiness
4.
Article 936 of the NCC When a credit has
been given as a legacy is judicially demanded by the
testator
5.
Article 854 of the NCC Preterition
Kinds of Revocation by Subsequent Instrument:
1.
EXPRESS REVOCATION When the new will or
codicil contains a revocatory clause.
2.
IMPLIED REVOCATION When the provisions in the
subsequent
wills
or
codicil
are
completely
inconsistent with the provisions in the previous will.
Requisites for the application of revocation by
subsequent instrument:
1.
There must be testamentary capacity AT
THE TIME of revocation
2.
The subsequent instrument must be valid
3.
The subsequent will or instrument must
contain a revocatory clause or be incompatible with the
former will thereby showing intent to revoke
4.
The subsequent will or instrument must be
admitted to probate
Requisites for the application of revocation by an
overt act:
1.
The testator has testamentary capacity AT
THE TIME of performing the act
2.
The act must be any of the overt act
mentioned under Article 830:
a.
BURNING It
is not required that the whole instrument is
completely burned. Even if only a portion of the
document is burned, it is considered to be an act of
revocation.
b.
TEARING

either you tear or cut by means of your hands or


scissors. A slight cut or a slight tear is sufficient to
be considered an act of revocation. The greater the
cut the greater is the presumption that there is
animu revocandi on the part of the testator. If the
codicil is torn, it is an act of tearing and both the
will and codicil are revoked because a codicil is
part of the will.
c.
CANCELING
when you place a mark or a line across the
writings. If you place a mark or a line on the
spaces, there is no cancellation.
d.
OBLITERATIN
G it is when you erase thru eraser or like you blot
out. If what is blotted out is just some provisions,

11

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

3.

4.
5.

these provisions are considered to be revoked but


the will remains valid
The act must be a completed act (at least a completion of
the subjective phase of the overt act)
GENERAL RULE: Even if the tearing is not complete or the
burning is not complete then there is an act of
revocation.
EXCEPTION: When the testator starts burning his will but
he realized that he really does not want to revoke his
will. So before the will is completely burned, he desists
from burning and that is voluntary desistance on his
part. In this case, even if the will contains a slight burn
or slight tear there is NO ACT OF REVOCATION because
of the voluntary desistance by the testator.
There must be intent to revoke or animus revocandi
The revocation must be done by the testator himself or by
some other persons in his presence and under his express
direction
PRESUMPTION: A duly executed will has not been
revoked
Burden of proof that the will is revoked lies upon the
one who opposes the probate of the will which that person
alleges has been revoked

What should be proven during the probate of a lost or


destroyed notarial will:
1.
Establish compliance with the formalities required by
law under Articles 804-809 of the NCC
2.
Prove that the will was inexistent at the time of the
death of the testator or that it was fraudulently destroyed
or lost without the knowledge of the testator or it was
accidentally lost or destroyed by the testator without
intent to revoke.
3.
Prove the contents clearly and distinctly by copies or
without copy by recital of content by some document or
the testimony of the witnesses
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. (n)

Article 831 talks about Implied Revocation made in a


subsequent instrument
There is IMPLIED REVOCATION when the testator,
after having executed a will executes another will or
codicil which the will or codicil does not contain a
revocatory clause but its contents are inconsistent with
the former will then there is implied revocation

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. (740a)

Article 832 is the DOCTRINE OF ABSOLUTE


REVOCATION
On the other hand, the DOCTRINE OF DEPENDENT
RELATIVE REVOCATION is where the act or destruction
is connected to the making of a will so as squarely to raise
the inference that the testator meant the revocation of
the old would depend upon the efficacy of the new
disposition and if for any reason the new will intended to
be made as a substitute is inoperative, the revocation fails
and the original will is in full force and effect
There is no revocation by overt act if the destruction
of the first will was prompted by a false belief that the
subsequent will executed was valid
If the destruction is AFTER the execution of the
subsequent will, the Doctrine of Dependent Relative
Revocation applies. He destroyed the 1 st will after having
executed the 2nd will.
But if he destroyed the 1st will LONG BEFORE the
execution of the subsequent will, you can no longer apply
the doctrine. The will here was destroyed by an overt act,
so it is absolute.

ARTICLE 833.
A revocation of a will based on a false cause
or an illegal cause is null and void. (n)

Article 833 is another aspect of the Doctrine of


Dependent Relative Revocation. You revoke the will based
on a false belief

When the revocation is made by a subsequent


instrument the false cause must be stated in the
face of the will

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. (741)

Recognition takes place immediately upon the


execution of the will
Recognition is not disposition of property
SUBSECTION 7
Republication and Revival of Wills

REPUBLICATION
It is the re-establishment by the
testator of previously revoked
will or one invalid for want of
proper execution as to form or
for other reasons so as to give
validity to said will
It involves the act of the
testator.
There is a will previously
revoked or a will valid as to
form or a will invalid for any
other cause

REVIVAL
It is the re-establishment
to validity by operation of
law
of
a
previously
revoked will.
It involves the act of law,
operation of law.
A will previously revoked.

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

Article
835
gives
the
rule
on
express
republication or republication by re-execution
Republication is the re-establishment by the
testator of a previously revoked will or one invalid for
want of proper execution as to form or for other reasons
so as to give validity to said will
If the testator previously executed a void will and
he would want to give life to this void will, then he has
to republish his will.
Or, if previously, the testator revoked his will and
he would like to give life to this revoked will. So, he has
to republish his will.

2 Kinds of Republication:

1)

EXPRESS
REPUBLICATION/
REPUBLICATION BY RE-EXECUTION is a republication
in a subsequent will a previous one which is void as to
form (Article 835)

2)

IMPLIED
REPUBLICATION/REPUBLICATION BY REFERENCE is
the execution by a codicil referring to a previously
revoked will or a will valid as to form but void because
of some extrinsic defects like lack of testamentary
capacity (Article 836)

ARTICLE 836.
The execution of a codicil referring to a
previous will has the effect of republishing the will as
modified by the codicil. (n)

If the old will is void as to form, the only way to


republish it is by re-execution.
If old will is void but not as to form because the
testator lacks testamentary capacity, it can be
republished by re-execution or it can be republished by
reference.

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. (739a)

There is no revival if the first will is expressly


revoked by the 2nd will
There is revival if the first will is IMPLIEDLY
REVOKED by a second will
PRINCIPLE OF INSTANTER states that when the
will is EXPRESSLY revoked by a 2 nd will, the revocation of
the 2nd will by the 3rd will will not revive the 1 st will. This

12

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

is because revocation takes effect immediately. It does


not wait for the death of the testator to become effective
because revocation does not take the form of
testamentary disposition.

b.
2.

3.

whether or not a certain property is


included in the estate.

Filiation
a. whether or not the oppositor has
personality to intervene; or
b. whether or not the will has been revoked
Whether or not there was preterition
But decisions of the court pertaining to these
questions are only provisional.

Matters that may be passed upon by the probate


court:
1) Questions of identity
2) Due Execution
3) Question as to the testamentary capacity

SUBSECTION 8
Allowance and Disallowance of Wills
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 death shall govern. i
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 is the act or process of proving before a


competent court the due execution of an instrument
purported to be the last will and testament of a deceased
for its allowance by the said court, that is, for its official
recognition and the carrying out of its provision in so far
as they are in accordance with law.
A probate proceeding is a special proceeding. It is a
proceeding in rem.
In a probate proceeding, the inquiry as a General Rule
is limited only to the EXTRINSIC VALIDITY of the will
Extrinsic validity means:
1.
whether or not the testator was of sound
mind when he executed the will
2.
whether or not he is 18 years or above
3.
whether or not the will complied with the
formalities under Articles 804-809 with respect to
notarial will
4.
whether or not the will is entirely written,
dated and signed in the handwriting of the testator
with respect to holographic will
The rule on ESTOPPEL and the STATUTE OF
LIMITATION do not apply in probate
Probate is MANDATORY
Extrajudicial Settlement is NOT allowed when there is
a will
ANTE MORTEM PROBATE means a probate done
during the lifetime of the testator
POST MORTEM PROBATE means a probate done after
the death of the testator

2 aspects of POST MORTEM PROBATE:


1.
PROBATE PROPER is only concerned on the
due execution of the will and the testamentary capacity of
the testator
2.
DETERMINATION OF THE LEGALITY OF THE
PROVISION AND THE DISTRIBUTION OF THE ESTATE.
GENERAL RULE: During probate proper, the probate court HAS
NO JURISDICTION to entertain other issues except on issues on
whether or not the will was duly probated in compliance with
the formalities required by law and whether or not the testator
has testamentary capacity at the time he executed the will
EXCEPTION:
Summary on issues that may be passed
upon by the probate court (intrinsic validity):
1. Ownership
a. when the testator has disposed of property
which is not his; or

PROBATE OF
HOLOGRAPHIC WILL
In the probate of
holographic wills, if there is
no contest, it is enough that
at least 1 witness explicitly
declares that the will is in
the
handwriting
and
signature of the testator.
When the will is contested,
there must be at least 3 of
witnesses. In the absence of
such
witnesses,
expert
testimony may be resorted
to or even if there is no
contest,
still
expert
testimony may be resorted
to.

PROBATE OF NOTARIAL
WILL
In the probate of notarial
wills, when there is no
contest,
at
least
1
subscribing witness should
testify as to the execution of
the will. When there it is
contested,
ALL
of
the
subscribing witnesses plus
the notary public must
testify.
If
all
of
the
subscribing witnesses and
the notary public are:
1.dead;
2.insane; or
3.they are all absent in the
Philippines or
4.testify against the due
execution of the will; or
5.they do not remember
having
attested
the
execution of the will; or
6.they
are
of
doubtful
credibility
then, other witnesses may
be resorted to.

LOST/DESTROYED
HOLOGRAPHIC WILL
When it comes to a
holographic will, there must
be a photocopy or carbon
copy of the holographic will.
If there is no copy of the
holographic will, even if the
reason why the holographic
will was lost or destroyed
was due to the act of
another
person
without
intent to revoke on the part
of the testator still, no
probate of the holographic
will may be allowed because
there is no copy.

LOST/DESTROYED
NOTARIAL WILL
In notarial wills, even if
there is no copy, the notarial
will
may
be
probated
because the contents of a
notarial will may be proved
by the testimonies of at least
2 witnesses to clearly and
distinctly
proved
the
contents of the notarial will.
NB: As long as there is no
animus revocandi on the
part of the testator.

ARTICLE 839.
The will shall be disallowed in any of the
following cases:
(1) If the formalities required by law have not been
complied with;
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other
person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that
the instrument he signed should be his will at the time of
affixing his signature thereto. (n)

These grounds are exclusive.


However,
despite the exclusivity given, it seems that there are
other grounds which are minority, revocation and
forgery.

1st ground:

13

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

In case of notarial wills, formalities under Articles

804-809

In case of holographic wills it must be:


entirely written, signed and dated in the
handwriting of the testator
b.
in the language known to the testator
c.
must be executed at the time when
holographic wills are allowed
2nd ground:

This ground refers to the soundness of mind of


the testator at the time of execution of the will
3rd ground:

This connotes the idea of coercion, mental or


physical
4th ground:

Undue Influence connotes the idea of coercion


by virtue of which the judgment of the testator is
displaced, and he is induced to do that which he
otherwise would not have done.
5th ground:

Fraud is the use of insidious words or


machinations to convince a person to do what ordinarily
he would not have done.

There is an intent to make a will


6th ground:

The testator is acting because of his mistake and


the testator has no intent to make a will

There is no intent to make a will

But this freedom of disposition is not absolute because


when there are compulsory heirs, the testator has to
observe the portion pertaining to the compulsory heirs

a.

REVOCATION
A voluntary act of the
testator.
May be with or without
cause.
May be partial or total.

Institution refers to the free portion

Characteristics of an instituted heir?


1.
The instituted heir constitutes the relation of the
personality, to continue the personality of the testator but only
in relation to the inheritance without being personally liable for
the death of the testator.
2. The instituted heir acquires the right limited to the
disposable portion and he cannot impair the legitime.
Requisites for an institution to be valid:
1. The will must be extrinsically valid
2. The institution must be intrinsically valid
3. The institution must be effective
ARTICLE 841.
A will shall be valid even though it should
not contain an institution of an heir, or such institution should
not comprise the entire estate, and even though the person so
instituted should not accept the inheritance or should be
incapacitated to succeed.
In such cases the testamentary dispositions made in
accordance with law shall be complied with and the remainder
of the estate shall pass to the legal heirs. (764)

A will is valid even though it does not contain an


institution of an heir
Such institution should not comprise the entire estate
Even though the person so instituted should not accept
the inheritance or should be incapacitated to succeed

ARTICLE 842.
One who has no compulsory heirs may
dispose by will of 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. (763a)

This article is called the freedom of disposition

The best way to designate the heir is by name or


surname
Even if the name is omitted, the designation is still valid
as long as such person can be identified
If there are 2 or more 2 persons instituted and they
have the same name or corresponds to the same
description, Article 789 can be applied:
ARTICLE 789. When there is an imperfect
description, or when no person or property
exactly answers the description, mistakes
and omissions must be corrected, if the
error appears from the context of the will or
from extrinsic evidence, excluding the oral
declarations of the testator as to his
intention; and when an uncertainty arises
upon the face of the will, as to the
application of any of its provisions, the
testator's intention is to be ascertained from
the words of the will, taking into
consideration the circumstances under
which it was made, excluding such oral
declarations. (n)

Must always be for legal a


cause.
Always total.

ARTICLE 840. Institution of heir is an act by virtue of


which a testator designates in his will the person or persons
who are to succeed him in his property and transmissible
rights and obligations. (n)

DISALLOWANCE
Given by judicial order

SECTION 2
Institution of Heir

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. (772)

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. (773a)

Article 843 mentions omissions. Article 844 mentions


errors.
Errors in the name, surname or circumstances would
not matter as long as ultimately the court can identify
who are really the heirs intended by the testator
Any manner maybe resorted to determine the person
instituted except oral declaration made by the testator

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 of persons shall be valid. (750a)

An unknown person is one that cannot be identified.


He is not necessarily a stranger
A disposition in favor of an unknown person who cannot
be identified cannot be given effect

ARTICLE 846.
Heirs instituted without designation of
shares shall inherit in equal parts. (765)

Article 846 refers to PRINCIPLE OF EQUALITY


It is presumed that the testator intended to give equal
shares to the heirs instituted. Otherwise, he would
have specifically mentioned the shares of the heirs had
he intended that each heir shall get different portion or
unequal portions

GENERAL RULE: Heirs instituted without designation of


shares shall inherit in equal parts.
EXCEPTION: Article 846 cannot apply when there are
compulsory heirs.
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

14

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

instituted, unless it clearly appears that the intention of the


testator was otherwise. (769a)

inheritance, or the whole free portion, each part shall be


increased proportionally. (n)

This article refers to the PRINCIPLE OF INDIVIDUALITY


As long as the intention to have the estate collectively
distributed does not appear in the will, the presumption is
individual institution
When there are compulsory heirs, you have to first satisfy
the portion pertaining to the legitime of the compulsory
heirs.
INSTITUTION refers to FREE PORTION

ARTICLE 848.
If the testator should institute his brothers
and sisters, and he has some of full blood and others of half
blood, the inheritance shall be distributed equally unless a
different intention appears. (770a)

Remember that brothers and sisters are not compulsory


heirs although they are legal heirs
When the testator institutes his brothers and sisters
whether or full blood or half blood they are deemed to
have been instituted equally

INTESTATE SUCCESSION
The shares of the brothers or
sisters of the full blood, is
twice as much as those of
the half blood.
So here
there is a presumption that
the affection of the testator
for the brothers and sisters
of the full blood is greater
than those of the half blood

TESTATE SUCCESSION
There
is
NO
such
presumption.

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. (771)

This article is known as the PRINCIPLE OF


SIMULTANEITY
There is only a presumption. There is nothing which can
prevent the testator from providing in his will that the
institution shall be successive and not simultaneous.

ARTICLE 850.
The statement of a false cause for the
institution of an heir shall be considered as not written, unless
it appears from the will that the testator would not have made
such institution if he had known the falsity of such cause.
(767a)
GENERAL RULE: The statement of a false cause for the
institution of an heir shall not vitiate the institution. The false
cause shall always be considered as not written.
The law presumes that in giving a legacy or devise or
inheritance, the real motivation or the real cause is the
liberality or generosity of the testator not he false cause.
EXCEPTION: Unless it appears from the will that the testator
would not have made such institution if he had known the
falsity of such cause.

According to some authorities in succession, the


statement of Illegal cause for the institution will not
invalidate the institution. The illegal cause is deemed not
written.

In Article 852, the intention of the testator is to give the


entire estate to the instituted heir or heirs but the
shares given to the instituted heirs when added do not
comprise the entirety of the estate

Problem1
Q: A, B and C are instituted as heirs: A = 1/4, B = 1/4 and C
= 1/4. The testator says that he is giving the entire estate to
A, B and C. The estate is worth P120,000. Does the
institution comprise the entire estate? No, because the
institution only amounts to 3/4. How do we divide the estate
among A, B and C?
A: A = P30,000
B = P30,000
C = P30,000
------------P90,000
P120,000 - 90,000 = P30,000
P30,000 / 3 = P10,000
Total share of:
A = P30,000 + 10,000 = P40,000
B = P30,000 + 10,000 = P40,000
C = P30,000 + 10,000 = P40,000
-----------P120,000
Problem2
Q: A = 1/6, B = 1/8, C = 2/3. The estate is worth P120,000.
A: A = (P120,000 / 6) * 1 = P20,000
B = (P120,000 / 8) * 1 = P15,000
C = (P120,000 / 3) * 2 = P80,000
------------P115,000
A = (20,000 / 115,000) * 5,000 = P 869.565
B = (15,000 / 115,000) * 5,000 = P 652.179
C = (80,000 / 115,000) * 5,000 = P3,478.826
---------------P5,000.00
Total share of:
A = P20,000 + 869.565 = P20,869.565
B = P15,000 + 652.179 = P15,652.179
C = P80,000 + 3,478.862 = P83,478.862
-----------------P120,000.00

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

Article 853 is the reverse of Article 852

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

Problem1
Q: A =1/4, B = 1/8, C = 2/3. The estate is worth P120,000.
A: A = 1/4 * P120,000 = P30,000
B = 1/8 * P120,000 = P15,000
C = 2/3 * P120,000 = P80,000
-----------P125,000

A = (P30,000 / 125,000) * 5,000 = P1,200


B = (P15,000 / 125,000) * 5,000 = P600
C = (P80,000 / 125,000) * 5,000 = P3,200
Total share of:
A = P30,000 - 1,200 = P28,800
B = P15,000 - 600 = P14,400
C = P80,000 - 3,200 = P76,800
------------P120,000

Aliquot part means a fraction or undivided interest


Article 851 should be applied when there is NO INTENTION
on the part of the testator to give the remaining part of
the estate. So, only the specific portions mentioned.

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

15

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

ARTICLE 854.
The preterition or omission of one, some, or
all of the compulsory heirs in the direct line, whether living at
the time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without prejudice to
the right of representation. (814a)

PRETERITION is the total omission generally due to


mistake or oversight by the testator in his will of one,
some or all of the compulsory heirs in the direct line living
at the time of the testators death.
The omission may be voluntary or involuntary

Requisites of Preterition
1. The omission from the inheritance must be total or
complete

No preterition in the following situations:


a.
If the compulsory heir is given a devise or a
legacy, he is not considered preterited even if
the legacy or devise is worth less than the
legitime of the compulsory heirs.
b.
If the estate is worth P100T but the testator
says, I hereby institute my heir to one-half of
my estate. That is the only provision in the will.
For example, A is a son, an heir. There is no
preterition even if A is not mentioned because
something is being left for A in the inheritance.
c.
As long as there is still a balance after all the
provisions in the will have been given effect,
there are still undisposed properties which the
omitted compulsory heir may partake so there is
no preterition.
2. The omission must be the compulsory heir in the direct
line

Compulsory heirs:
1.
The children whether legitimate or
illegitimate
2.
The parents in the absence of the
children

A spouse is a compulsory heir


but NOT in the direct line

By fiction of law, an adopted


child is a compulsory heir in the direct line
3. The omitted compulsory heir must survive the testator.

If the omitted heir died ahead of the testator, there is no


preterition because by reason of his early death, he is
deemed not to have inherited from the testator

However, the omitted compulsory heir dies ahead and he


has children who can represent him.
There is
representation wherein the representative is exalted to
the position of the one they are representing. In this case,
there is preterition.

If there was a donation given to the compulsory heir


during the lifetime of the testator, and such heir is
omitted from the will, there is no preterition because he is
not omitted from the inheritance. There must be omission
from the inheritance, not merely from the will.

The donations made to compulsory heirs during the


lifetime of the testator, upon the death of the testator, the
values of these donations are brought back to the value of
the estate through collation.
Effects of Preterition
1. It shall annul the institution of heir (Article 854)
2. The legacy or devise shall be valid in so far as they
are not inofficious (do not impair the legitime).
ARTICLE 855.
The share of a child or descendant omitted
in a will must first be taken from the part of the estate not
disposed of by the will, if any; if that is not sufficient, so much
as may be necessary must be taken proportionally from the
shares of the other compulsory heirs. (1080a)

Article 855 talks about the share of a child or descendant


omitted in the will.
This article can also be applied when what is at hand is
merely an impairment of the legitime, so, you just have to
complete the legitime.
Article 855 talks only of the legitime. It has no concern of
the Free Portion.

ARTICLE 856.
A voluntary heir who dies before the testator
transmits nothing to his heirs.

A compulsory heir who dies before the testator, a


person incapacitated to succeed, and one who renounces
the inheritance, shall transmit no right to his own heirs
except in cases expressly provided for in this Code. (766a)

The term voluntary heir here covers also


legacies or devises. So, if a legacy or devise is given, it
transmits nothing to the heir of the voluntary heir if the
voluntary heir dies before the testator

GENERAL RULE: If a compulsory heir is predeceases, is


incapacitated or renounces or repudiates the inheritance, he
transmits nothing to his own heirs.
EXCEPTION : Right of Representation

This article speaks of an heir who


predeceased the testator, incapacity and one who
renounces the inheritance. But this article applies by
analogy to DISINHERITANCE. A compulsory heir who is
disinherited shall transmit no right to his own heirs
except when there is Right of Representation.
SECTION 3
Substitution of Heirs

ARTICLE 857.
Substitution is the appointment of another
heir so that he may enter into the inheritance in default of
the heir originally instituted. (n)

Article 857 speaks of substitution where there is


appointment of another heir in default of another heir
instituted. If the first heir cannot inherit for reasons
provided for by law, then the testator may appoint a
substitute in place of the original heir. The substitute
will instead get the inheritance which should have
pertained to the original heir
In substitution, there are also instances wherein both
heirs, the original heir and the substitute inherit. That is
covered by the case of what we call the
FIDEICOMMISSARY SUBSTITUTION
As such, substitution is the appointment of another
heir so that he may enter into the inheritance in default
of the heir originally instituted or AFTER SUCH HEIR
either one after the other or all at the same time.

2 Concepts of Substitution:
1. Direct Substitution only one inherits. If the
original heir defaults, then the substitutes inherit.
(Article 857)
2. Indirect Substitution the inheritance is
assumed by 2 heirs. So, one inherits after the
other. (Fideicommissary substitution Article 863)
Purposes of substitution
1.
To avoid intestate succession
2.
To prevent the descent of the estate of the
testator to whom the testator does not want to succeed
him in his property whether by right of representation,
or by right of accretion or by right of intestate
succession
3.
To allow the testator greater freedom to
help or reward those who by reasons of services
rendered are more worthy of his affection and deserving
of his bounty than intestate heirs
4.
To
enable
the
testator
to
make
arrangements for his succession in the manner most
convenient for him
5.
To realize some honorable purpose of the
testator like the maintenance of the property within his
property because in substitution, the testator to some
extent may preserve the property within the confines of
his own immediate family and prevent the estate from
descending to the other legal heirs like the brothers or
sisters

You can have a substitute for a legatee or devisee


because Article 857 applies to the free portion and not
to the legitime

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

16

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Simple or Common - Article 859


Brief or Compendious Article 860
Reciprocal Article 861
Fideicommissary Article 863

ARTICLE 859.
The testator may designate one or more
persons to substitute the heir or heirs instituted in case such
heir or heirs should die before him, or should not wish, or
should be incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to
which it refers, shall comprise the three mentioned in the
preceding paragraph, unless the testator has otherwise
provided. (774)

The substitute inherits from testator, not from the person


substituted
Under Article 859, if the original heir dies ahead of the
testator or renounces the inheritance or becomes
incapacitated then the substitution shall be effective even
if the disposition is silent as to the cause of the
substitution.
Unless the testator has otherwise provide : thus, the
testator here is not precluded from providing other causes
other than predecease, incapacity and renunciation
But if the disposition is silent, then it is presumed that the
3 causes mentioned under Article 859 are the ones being
referred to by the testator
Substitution must be EXPRESSLY provided by the testator.
No presumption that there is substitution.

Article 860. Two or more persons may be substituted for one,


and one person for two or more heirs.

Article 860 talks about Brief or Compendious


Substitution
BRIEF SUBSTITUTION is when 2 or more persons may
be substituted for one heir (plurality of substitutes)
COMPENDIOUS SUBSTITUTION is when 2 or more heirs
are instituted and one is appointed as substitute for all
heirs
originally
instituted.
(plurality
of
persons
substituted)
But in compendious substitution, the substitute is for ALL
the heirs. The substitute inherits if all the heirs die ahead
of the testator, renounces the inheritance or becomes
incapacitated.
If only one dies, renounces or is incapacitated, the
concept of accretion is applied unless there are
representatives

ARTICLE 861.
If heirs instituted in unequal shares should
be reciprocally substituted, the substitute shall acquire the
share of the heir who dies, renounces, or is incapacitated,
unless it clearly appears that the intention of the testator was
otherwise. If there are more than one substitute, they shall
have the same share in the substitution as in the institution.
(779a)

Article 861 refers to Reciprocal Substitution where all


the heirs are constituted as the substitutes of one
another.
Example 1: If the share of A is P 30,000 and the share of
B is P 10,000, if A dies ahead of the testator, B will get As
share even if As share is greater than B, unless the
testator EXPRESSLY provides that the substitution of B to
the share of A is only to the extent of the inheritance by B.
Example 2: If there are more than 2 persons instituted
where the estate is P 300,000 and the heirs are A, B and
C. As share is P 100,000, Bs share is P 50,000 and Cs
share is P 150,000. If A dies ahead of the testator, B and
C shall have the same share in substitution as in the
institution.
Institution
Substitution
Total
A
(100T)
B
P 50T
50/200 * 100T = P 25T
P 75T
C
P150T 150/200 * 100T = P 75T
P 225T

ARTICLE 862.
The substitute shall be subject to the same
charges and conditions imposed upon the instituted heir,
unless the testator has expressly provided the contrary, or the
charges or conditions are personally applicable only to the heir
instituted. (780)
GENERAL RULE: The substitute shall be subject to the same
charges and conditions imposed upon the instituted heir.

EXCEPTIONS:
1. When the testator has expressly provided the
contrary
2. When the charges or conditions are only personally
applicable to the person instituted
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. (781a)

Simple substitution, brief or compendious substitution


and reciprocal substitution are examples of direct
substitution, where the substitute inherits in default of
the heir originally instituted. Their enjoyment of the
property is in the alternative.
Fideicommissary
substitution
is
an
indirect
substitution, where both heirs inherit one after the
other

Example of a fideicommissary substitution:


The testator has 2 heirs A and B. A first succeeds
to the property, first acquired or enjoyed the property. But
the enjoyment of A is subject to the condition that he should
preserve the property and later on, upon conditions given by
the testator, either upon death or repudiation or upon
certain period, A will now transmit the property to B, the
second heir. Both A and B enjoy the property. Although A
here merely enjoy uses of the property, he is like a
usufructuary because he cannot own the property because
of his obligation to transmit the property to B. Aside from
enjoying the property, B also owns the property with all the
rights pertaining to an owner. Because of the obligation of A
to preserve and transmit, A:
1. cannot absolutely alienate the property inter vivos
or mortis causa
2. cannot make a will providing that the properties is
given to another person
Requisites of fideicommissary substitution:
1.
The fideicommissary substitution must
be expressly made
How?
a. By
providing
the
name
of
the
fideicommissary substitute or that this is a
fideicommissary substitution
b. By providing the obligation to preserve
and obligation to transmit
2.
There must be a first heir (fiduciary,
fiduciaro, heredero or trustee)

The first heir must have the


capacity to inherit and has the obligation to
preserve and transmit the estate in whole or in part
TRUSTEE (TRUST)
A trustee or a trust has no
right to enjoy the property

USUFRUCTUARY
Required to furnish a bond
Not entitled to refund.

3.

FIDUCIARY (FIRST HEIR)


A fiduciary, although he has
the obligation pertaining to a
trustee in a trust, he can
enjoy the property
FIDUCIARY
The
fiduciary
is
not
required to furnish a bond
or security.
Entitled
to
refund
for
expenses and for the
increase in the value of the
property by reason of its
improvements

There
must
be
a
second
heir
(fideicommissary or fideicomisario or beneficiary or
cestui que trust)

The second heir receives the property from the first


heir but the 2nd heir actually inherits from the
testator, not from the first heir

The 2nd heir must be capacitated to inherit from the


testator. He must not die ahead of the testator,
must not be unworthy, and must not repudiate the
inheritance from the testator.

17

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

4.

The second heir must not be beyond one degree


from the first heir or the heir originally instituted

2 views as to what one degree means:


a.
Some authorities before interpreted one
degree as one transfer.
b.
Later on, it was clarified that degree
means generation.
One degree means one
generation apart. The 1st heir and the 2nd heir must
not be beyond one degree or one generation apart.
You count one generation from the first heir not from
the testator. The 2nd heir must either be child or a
parent of the first heir.

5.

There is only fideicommissary substitution in


natural persons
There can be no fideicommissary substitution in
juridical persons because there is no generation to
speak of when it comes to juridical persons
st

nd

Both of the 1 heir and the 2 heir must be living


at the time of the death of the testator or at least
conceived.
ARTICLE 41 NEW CIVIL CODE.
For
civil
purposes, the foetus is considered born if it is alive
at the time it is completely delivered from the
mother's womb. However, if the foetus 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. (30a)

acquired his title as naked owner upon the death of the


testator. But the buyer is also subject to the right of the
first heir to enjoy the property.
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. (785a)
(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

The fideicommissary substitution must be an


obligation. If it is just a suggestion or an advice,
then that is not fideicommissary substitution. When
we say obligation, the heir has no choice but to
comply.

Legitime is imposed by law so the testator cannot deprive


his heirs of their legitime and he cannot circumvent the
law on legitime by imposing conditions, charges, burdens
and substitutions upon the legitime
The rights of the compulsory heirs to their legitime are
absolute except when there is a cause for disinheritance
The fideicommissary substitution is only limited to the
free portion

(2) Provisions which contain a perpetual prohibition to


alienate, and even a temporary one, beyond the limit
fixed in article 863

Any perpetual prohibition on the fiduciary to


alienate the property is just okay because in the
first place he is prohibited from alienating the
property

If only for a period example 10 years, he is


prohibited from disposing the property for 10 years
but after 10 years he can alienate BUT ONLY to the
2ND HEIR

If the testator says in his will that he is prohibiting


his heirs from alienating the property forever, it is
void insofar as it exceeds the 20th year. If it is up to
100 years, it is valid only up to 20 years.

Prohibition to alienate is only up to the first degree

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.
(783)

(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

The successive payments shall only be limited to


those heirs one degree from the first heir

This paragraph applies if the obligation to pay is


successive, not simultaneous

ARTICLE 864.
A fideicommissary substitution can never
burden the legitime. (782a)

Obligations of the fiduciary:


1. to preserve the property
2. to deliver the property to the 2nd heir

If the institution is SILENT as to the date when the


delivery should be made, it should be MADE AT THE
TIME OF DEATH OF THE FIDUCIARY or 1 ST HEIR. If
there is a period stated by the testator, then, that
period should be followed.
3. to make an inventory of the property
Deductions the fiduciary can make out of the property:
1. legitimate expenses
2. credits
3. improvements

(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

This is not allowed because we do not know what


were the instructions made by the testator to such
person
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. (786)

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. (784)

As long as the first heir and the second heir did not
predecease the testator, then, their rights become vested
upon the death of the testator
Whether the 2nd heir dies ahead or after the 1 st heir, this
would not defeat the right of the 2nd heir to inherit.
If the 2nd heir dies ahead of the 1st heir, his rights shall
pass to his own heirs
The second heir can sell the property even if he still
cannot enjoy the property because the usufruct still
belongs to the 1st heir. This is because the second heir

If the fideicommissary substitution is not valid


because the obligation to preserve and transmit were
not expressly made or because the second heir dies
ahead of the testator, there is no more fideicommissary
substitution. The first heir will still get the property. It
becomes a simple substitution.

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. (787a)

If the testator gives the usufruct to A and the naked


ownership to B, this is valid
If the testator gives the naked ownership to A and to B
and C the usufruct, remember in Property that the

18

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

usufruct in favor of as many persons who will claim


successively is not allowed
If the testator gives to A the naked ownership and the
usufruct to B and when B dies, C will succeed B to the
usufruct and if C dies, D will succeed to the usufruct, then,
the transfer from B to C is valid. But C to D is no longer
valid because it is beyond the limit under Article 863. If B,
C and D are just friends, from B to C and C to D, all are not
valid because are not one degree.
If he gives the usufruct to various persons successively,
then, it will partake the nature of a fideicommissary
substitution. The heirs will be bound by the provisions of
Article 863 insofar as the degree is concerned.
The first person who enjoys the usufruct and the second
person enjoying the usufruct should not be beyond one
degree, if we are talking of successive enjoyment of
property.
If it is simultaneous, we do not have to observe the rules
on fideicommissary substitution

ARTICLE 870. The dispositions of the testator declaring all


or part of the estate inalienable for more than twenty years
are void. (n)

Article 870 provides the period within which


the testator may limit the disposition of his property which
is only up to 20 years only.
If 20 years valid.
If MORE than 20 years, what is void is merely the
excess.
If the prohibition is silent, it is considered as 20 years.
The same is true if the prohibition is forever.
SECTION 4
Conditional Testamentary Dispositions and
Testamentary Dispositions With a Term

c.
2.

b.
3.

4.

CONDITION in Obligations and Contracts is a future or


uncertain event or a past event unknown to the parties
CONDITION in Succession is a future or uncertain event or
a past event unknown to the parties upon which the
acquisition or extinguishment of a right under a
testamentary disposition is made subject
The condition must be express
A TERM is a day or time which necessarily comes although
it may not be known when

Kinds of Condition:
1. As to Cause
a. Potestative Condition - the fulfillment depends
exclusively upon the will of the heir, devisee or
legatee.
b. Casual Condition - depends upon chance or the will
of a third person

The legitime should not be impaired


There is only one prohibition which can be imposed
upon the legitime and that is, the testator can validly
provide
that
the
legitime
should
not
be
partitioned/divided for a period not exceeding 20 years.
Although it is not really considered an impairment
because the properties are still properties of the
compulsory heirs although they shall not divide the
properties for more than 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. (792a)

4 Kinds of Institution:
1.
Simple or Pure Institution It is an
institution that takes immediately after the death of the
testator. It is absolute and not subject to any condition,
charge or burden.
2.
Conditional Institution It is an institution
which is subject to a condition. There are different kinds
of condition, e.g. as to cause, as to effect, as to mode.
Conditional institution can be found in Articles 871-877
and Articles 883-884
3.
Institution with a Term It is an institution
that which is subject to a term which must necessarily
come, although not known when. An example is when the
testator institutes A as an heir but A will only receive the
inheritance 5 years after the death of the testator. It is
sure that A will receive the inheritance but only upon the
death of the testator.
4.
Modal Institution It is an institution that
which for a certain purpose or cause or that which is
provided under Articles 882 and 883.

As to Form
a. Express Condition
b. Implied Condition

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. (813a)

As
a.
b.

ARTICLE 871.
The institution of an heir may be made
conditionally, or for a certain purpose or cause. (790a)
There is no need of institution in the case of legitime
because regardless of the intention of the testator, the
compulsory heirs are entitled to their legitimes
Institution refers to the free portion

As
a.

Mixed Condition - depends partly upon the will of


the heir and partly upon chance or the will of a
third person.
to Effect
Suspensive Condition - the happening of which
gives rise to the inheritance
Resolutory Condition - the happening of which
extinguishes the right to the inheritance.
to Mode
Positive Condition - to do something that would
happen.
Negative Condition - to do something that will
not happen or that should not be done.

Article 873 talks of impossible conditions imposed in the


institution of heirs
In succession, when there is an impossible or illegal
condition then, the institution is still valid.
Just
disregard the impossible or illegal condition. This is
because in succession, the underlying reason for the
institution is the liberality of the testator and not really
the illegal or impossible condition.
The legality or illegality of the condition is to be
determined at the time when the condition is to be
performed

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. (793a)

Article 874 refers to the prohibition to marry or remarry


RELATIVE PROHIBITION is allowed. But if this would
amount to an absolute prohibition like to marry for 60
years then it is not allowed. An example is prohibition
to marry or re-marry a particular person or prohibited to
marry a particular time
ABSOLUTE PROHIBITION is not allowed. An example
is prohibition to marry or re-marry anybody or
prohibited to marry at all
The effect of an absolute prohibition is that it will be
considered as not written and shall be disregarded

Exceptions to Absolute Prohibition


a.
When the condition is imposed
upon the spouse by a deceased spouse
b.
If imposed by the ascendants or
descendants of a deceased spouse to the spouse of a
deceased spouse

Even if it is the deceased spouse who provides for the


prohibition, that prohibition will not apply to the
legitime of the spouse. Only that which pertains to her
as a voluntary heir (free portion) is forfeited

19

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

In the 1st paragraph of Article 874, the property is not yet


enjoyed. In the 2nd paragraph, there is already the right of
usufruct or allowance or some personal prestation. That
is allowed but it is only limited to usufruct, allowance or
personal prestation. If it is not among these 3, it is not
considered as a valid prohibition.

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. (794a)

Article 875 is what we call DISPOSITION CAPTATORIA


Disposition Captatoria is when the testator in his will
institutes A as his heir provided that A will also give the
testator a certain property or give to the son of the
testator certain property
It is prohibited the controlling motive or the main
consideration in succession is the liberality of the testator.
If you make that kind of provision, then you are making
testamentary privilege as a contractual privilege. You are
turning your will into a contract.
Both the institution and the condition are VOID
If it is a Deed of Donation, there is no disposition
captatoria since the law refers to a will

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 CONDITION is the condition the


fulfillment of which depends upon the sole will of the
debtor (in obligations and contracts) or of the heir
(succession)

Potestative Condition in
Obligations and Contract
Valid
But when it is suspensive
at the same time on the part
of the debtor, it is not valid.
This
means
that
the
obligation will arise if subject
to a condition which is to be
fulfilled by the debtor. That
is what is potestative and
suspensive. It is not valid
because naturally the debtor
would not fulfill the condition
because if the condition is
fulfilled then he is obliged
already because he is the
debtor

Potestative Condition in
Succession
Valid because the heir is
naturally
interested
in
fulfilling the condition. So
even if potestative and
suspensive, the condition is
still valid.

The potestative condition is to be complied with as soon


as the heir learns of the testators death because since
the will is revocable during the lifetime of the testator, it
would be useless for the heir to comply with the condition
knowing that it may be revoked by the testator anytime
Only substantial compliance is required because it is
presumed that by imposing a purely potestative condition
the testator trusted the heirs enough to comply with the
condition
As a general rule, if already complied with by the heir, it
must be complied with again unless it is of such a nature
that it cannot be complied with again

ARTICLE 877.
If the condition is casual or mixed, it shall be
sufficient if it happen or be fulfilled at any time before or after
the death of the testator, unless he has provided otherwise.
Should it have existed or should it have been fulfilled at
the time the will was executed and the testator was unaware
thereof, it shall be deemed as complied with.
If he had knowledge thereof, the condition shall be
considered fulfilled only when it is of such a nature that it can
no longer exist or be complied with again. (796)

Article 877 talks about casual or mixed condition


CASUAL CONDITION is a condition which depends upon
chance and/or upon the will of a third person
MIXED CONDITION is a condition which depends upon
1.
the will of the heir AND upon
chance; or

2.

the will of the heir AND


upon the will of a 3rd person
Example of a mixed and casual condition: I hereby
give to A my jewelry provided that A will bear a child
There must be actual or strict compliance because by
subordinating the condition upon chance, the testator
presumably did not trust the heir enough

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. (799a)

Article 878 talks about suspensive term


A term is a day certain which must necessarily come
although it may not be known when
When the disposition is subject to a suspensive term, it
means that the heir is sure to inherit but the
demandability of the inheritance is just suspended. The
heir is not prevented from acquiring his right when the
institution is subject to a suspensive term. The right of
the instituted heir becomes vested from the moment of
the death of the testator, although the enjoyment of the
property is just suspended. What is suspended is just
the demandability of the inheritance but his right to
demand becomes vested upon the moment of death.
In a suspensive condition, unless the condition is
fulfilled, the instituted heir acquires no right to the
inheritance.
In TERM, the rights will pass
In CONDITION, until after the condition is fulfilled, then
the heir instituted has no right to demand.
When institution is subject to a condition, the
acquisition of rights must be determined AT THE TIME
OF THE FULFILLMENT OF THE CONDITION. So, at the
time of the fulfillment of the condition when the heir is
already dead then, there is no right to speak of.
The testator can institute can heir subject to a
resolutory term because the law does not prohibit it

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. (800a)

Article 879 talks of NEGATIVE POTESTATIVE


CONDITION, a condition that is purely dependent upon
the will of the heir, devisee or legatee which consists of
not doing or not giving something
Under this article, inheritance is immediately
demandable from the moment of death of the testator
But, the heir or devisee must give a caucion muciana
CAUCION MUCIANA is the security given by an heir
who is subject to a potestative condition which is
negative or who is subject to the condition which
consist in not doing or not giving something
If the heir contravenes the condition, the heir will now
return what he or she received by way of inheritance
and all the fruits and interest
When monthly allowance, monthly pension, monthly
income, usufruct or personal prestation are given by
way of inheritance and the heir is prohibited from doing
something, otherwise, he shall forfeit the inheritance,
there is no requirement of giving a security. If the heir
contravenes the condition, the heir is not obliged to
return the fruits and interest because in this example
we apply by analogy Article 874 wherein no security is
required and the heir is not required to return the fruits
and interest.

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. (801a)

20

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Article 880 refers to a situation wherein the institution is


subject to a suspensive condition or term
When the institution is subject to a suspensive term or a
suspensive condition, the heir instituted will NOT get the
inheritance right away. The heir instituted still will have to
wait for the arrival of the term or for the happening of the
condition. Pending the arrival of the term or the
happening of the condition, the property but shall be
placed under administration.
As to who will be selected as the administrator, the
provisions of the Rules of Court in Special Proceedings
must be complied with. Those who are preferred in the
appointment as administrators are also the legal heirs.
The property is also placed under administration if is bond
is not furnished

ARTICLE 881.
The appointment of
estate mentioned in the preceding
manner of the administration and the
the administrator shall be governed
(804a)

the administrator of the


article, as well as the
rights and obligations of
by the Rules of Court.

This article speaks for the appointment of administrator,


which are discussed in Special Proceedings
Administrator is a person appointed by the court to take
care of the properties of the testator who died without a
will
Executor is the person provided by the testator in his will
who will take care of his properties pending settlement of
his estate

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. (797a)

Article 882 refers to MODAL INSTITUTION (2001 Bar


Question)
MODAL INSTITUTION is the institution wherein 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.
If the heir does not comply with the object or the
attestation and the purpose of the institution, the heir
forfeits the inheritance
If the institution is subject to a mode, the heir
immediately enjoys the property
The heir is required to furnish a security so that he will do
what has been imposed by the testator
If there is doubt as to whether the institution is a mode or
condition, it is resolved in favor of a mode because we
have to consider that the real reason in the institution is
the liberality of the testator
According to Paras, if there is a doubt as to whether it is a
mode or a suggestion, it is considered as a suggestion
because it is less burdensome

MODE
This refers to:
a.
t
he object of the
institution;
b.
t
he application of the
property; and
c.
c
harge
Heir immediately enjoys the
property upon the death of
the testator, provided he has
furnished security
It is obligatory upon the
instituted heir and so, he has
to comply with the object of
the institution or the burden
imposed by the testator. The

CONDITION
If it refers to other things,
you can say that they are
conditions.

failure to do so would result


in the forfeiture of the
inheritance
When you are in doubt, treat
the same as a mode because
when there is a condition, the
burden is heavier. A mode
merely obligates but does
not suspend.

ARTICLE 883.
When without the fault of the heir, an
institution referred to in the preceding article cannot take
effect in the exact manner stated by the testator, it shall be
complied with in a manner most analogous to and in
conformity with his wishes.
If the person interested in the condition should prevent
its fulfillment, without the fault of the heir, the condition
shall be deemed to have been complied with. (798a)

Article 883 talks about substantial compliance or


constructive fulfillment
Without the fault of the heir instituted, the obligation
cannot be fulfilled by the heir exactly in the manner
stated by the testator.
But as long as it is substantially in accordance with the
obligation imposed then the institution will take effect.
Example of substantial compliance is when the heir is
obligated to paint a portrait of the testator but the
portrait is not an exact resemblance of the testator.
Nevertheless, there is substantial compliance.
Even if the obligation cannot be fulfilled with, still, it is
as if it is fulfilled by constructive fulfillment.
The
instituted heir should not be prejudiced by the fact that
other persons prevented him from fulfilling his
obligation.
Example of constructive fulfillment is when a third
person cuts the hand of the heir so that such heir
cannot paint a portrait of the testator anymore.

ARTICLE 884.
Conditions imposed by the testator upon
the heirs shall be governed by the rules established for
conditional obligations in all matters not provided for by this
Section. (791a)

An example of the same rule on conditions applied both


to succession and obligations and contracts is an
institution subject to a resolutory condition. Just like in
obligations and contracts, the heir immediately enjoys
the property. But upon the fulfillment of the resolutory
condition the heir ceases to enjoy the property. The
happening of the condition gives rise to the
extinguishment of the right to the inheritance
If there are specific provisions in succession referring to
conditions and these conditions are not the same as in
obligations and contracts, the provisions in succession
shall prevail
In succession, an impossible condition shall be
considered as not written and so, the institution shall
still be given effect.
In obligations and contracts, if the obligation is subject
to an impossible condition both the condition and the
obligation are annulled

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. (805)

Heirs do not enjoy the


property after the death of
the testator but only upon
the
fulfillment
of
the
condition
It is not obligatory upon the
part of the heir because the
condition may or may not
happen

But
if
the
condition
happens, the burden is
heavier because a condition
obligates AND suspends.

This article talks about an institution subject to either a


suspensive term or resolutory term
If it is subject to a suspensive term, the demandability
of the property inherited shall be suspended until after
the arrival of the term. If in the meantime the instituted
heir dies before the arrival of the term, his rights shall
pass on to his own heirs because the heir already
acquired rights to the property from the moment of
death although the demandability is just postponed.
If the institution is subject to a resolutory term,
immediately after the death of the testator, the heir

21

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

enjoys the property and upon arrival of the term the heir
shall return the property.
Instances wherein the legal heirs or the instituted heirs
are to give a security:
1. When the institution is subject to a suspensive term,
the legal heirs can enjoy the property pending the
arrival of the term provided that the legal heirs shall
give security (Article 885);
2. In modal institution, the heir instituted subject to a
mode shall give security before the heir can enjoy the
property (Article 882); and
3. When the institution is subject to a negative
potestative condition or consists in not doing or not
giving then the heir instituted must also give a
security which is called caucion muciana (Article
879).
SECTION 5
Legitime
Simpler Table of Legitime (from the book of Paras)
Illegitimate Children 1/3
Surviving Spouses 1/3
Illegitimate children
Surviving Spouse 1/8
Legitimate Parents
Illegitimate Children
Legitimate Parents
Legitimate Parents
Surviving Spouse
Illegitimate Parents
Surviving Spouse
Illegitimate Child alone
Legitimate Parents alone

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)

Illegitimate Parents

Surviving Spouse , 1/3,

Legitimate Child alone

1 Legitimate Child
Surviving spouse
2 or more legitimate children

Surviving spouse - same as


1 legitimate child
Legitimate Child
Illegitimate child of each
legitimate child

When it comes to foreigners, the intrinsic validity of the


will shall be governed by the national law of the decedent.
So, if in their country there is no system of legitime, the
will is still valid.
Philippines follows a system of legitime
The purpose of providing for legitimes is to protect the
compulsory heirs of the testator because the testator by
his passion, prejudice might just omit his compulsory
heirs.

ARTICLE 887.
The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to their
legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and
ascendants,
with respect to their legitimate children and
descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by
legal
fiction;
(5) Other illegitimate children referred to in article 287.
Compulsory heirs mentioned in Nos. 3, 4 and 5 are not
excluded by those in Nos. 1 and 2; neither do they exclude
one another.
In all cases of illegitimate children, their filiation must be
duly proved.
The father or mother of illegitimate children of the three
classes mentioned, shall inherit from them in the manner and
to the extent established by this Code. (807a)

This has been already qualified by the Family Code


because the Family code does not mention acknowledged
natural children or natural children by legal fiction. We
only have legitimate children and illegitimate children.
Article 887 enumerate who are the compulsory heirs
The word compulsory means that the testator cannot
deprive the heir of their share but the heir has the liberty
whether or not to accept the inheritance. It is not
compulsory upon the heirs to accept but is compulsory
upon the testator to provide something for his heirs.

The legitime of legitimate children is of the net


hereditary estate
The legitime of the surviving spouse and illegitimate
children shall be taken from the free portion. What
remains is the free disposal
Tip: Compute first the legitime of the children before
the spouse provided there are 2 or more 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. (809a)

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. (806)

The primary compulsory heirs the legitimate


children, widow or widower, and illegitimate children.
They inherit all at the same time. They concur with
each other.
The legitimate parents are secondary compulsory
heirs. In the absence of legitimate children, it is when
the ascendants or parents inherit. It is either the
legitimate children or descendants, parents or
ascendants. They will not concur.
Illegitimate children concur with legitimate children.
They concur with the parents or ascendants. They
concur with the surviving spouse. Illegitimate children
are concurring compulsory heirs
Brothers and sisters are not compulsory heirs

The legitime of legitimate parents is of the net


hereditary estate. It is the same because legitimate
parents inherit in the absence of legitimate children.
If the parents are legitimate, they are excluded only by
the presence of legitimate children. They concur with
illegitimate children.
But if the parents or ascendants are illegitimate, they
are excluded even by the presence of illegitimate
children or descendants.

ARTICLE 890.
The legitime reserved for the legitimate
parents shall be divided between them equally; if one of the
parents should have died, the whole shall pass to the
survivor.
If the testator leaves neither father nor mother, but is
survived by ascendants of equal degree of the paternal and
maternal lines, the legitime shall be divided equally
between both lines. If the ascendants should be of different
degrees, it shall pertain entirely to the ones nearest in
degree of either line. (810)

This is the inheritance of the parents or ascendants


Observe the rule on proximity the nearer relatives
exclude those who are farther
In the ascending line, there is no right of representation
Always remember to divide equally between the
maternal side and the paternal side

ARTICLE 891.
The ascendant who inherits from his
descendant any property which the latter may have
acquired by gratuitous title from another ascendant, or a
brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of
relatives who are within the third degree and who belong to
the line from which said property came. (871)

Article 891 talks about RESERVA TRONCAL


The purpose of reserve troncal is to prevent the
property of one family from falling into the hands of
another family
The concepts of reserve troncal is to return the property
from where it originally came from
The concept of reserva troncal is actually a burden or
restriction or a charge on the legitime of the ascendant.

22

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Parties involved in Reserva Troncal:


1. Origin of the property
2. Propositus
3
Reservor or reservista
4. Reservees or reservatorios
Origin

Reservor

Reservees

But if the 3rd party is an innocent purchaser or innocent


mortgagor, then the right of the reservees consists of
demanding payment from the estate of the reservor or
demanding payment from the Assurance Fund under
the Land Registration Authority.

Obligations
of
the
reservor
during
the
subsistence of the reserve:
1. The reservor must make an inventory of the
property received by operation of law from the
descendant;
2. He must register the inventory with the Registry of
Property;
3. If the property received from the descendant is
Real property, then the reservor has the obligation
to furnish a bond, mortgage or security to insure
the safe delivery of the property to the reservees
who might be living at the time of the death of the
reservor;
4. If the real property is already registered, then the
reservor is obliged to annotate the reserve. He
must do this within 90 days from the time he
received the property from the descendant or from
the time the court makes a decision that the
reservor is entitled to receive the property. If the
reservor does not make the annotation, then the
reservees have the right to file an action to compel
the reservor to make the annotation but they must
wait after the lapse of 90 days. The annotation
itself is sufficient protection or if there is no
annotation, bond, security, or mortgage must be
furnished.
5. The reservor also must not substitute the property
with another. The same property received from the
origin and from the descendant must be same
properties to be given to the reservees
Exceptions:
1. If the property is sold to the innocent
purchaser for value, in effect the obligation of
the reservor is substituted with the obligation
to pay money to reserve;
2. If the property is lost or destroyed without the
fault of the reservor, then the obligation is
extinguished.
The reservees may intervene in the land registration
proceeding not for the purpose of opposing the
registration but for the purpose of having their claim to
the reserva being annotated to the title
If the reservees did not intervene in the said
proceedings, within 1 year, they can file for a review of
decree of registration so that they can cause the
annotation thereof. But they can no longer do so
beyond the 1-year period if the purchaser is innocent. If
the purchaser is not innocent, the 1-year period does
not apply. The purchaser may still be obliged to return
the property because knowledge is equivalent to
registration.

Propositus
ORIGIN

The origin must be a legitimate relative, either the


legitimate mother or father or ascendant or legitimate
half-brother or half-sister

It cannot be full blood brothers and sisters because there


would be no distinction as to the line.

The property transferred from the origin to the propositus


must be OWNED by the origin
PROPOSITUS

The propositus must be a descendant of the origin or of


the half brother or half sister. It must be a legitimate
relationship.

The transfer from the origin to the propositus should be by


gratuitous title, which is either the origin donated the
property to the propositus or the propositus inherited the
property from the origin.

The propositus, there being no obligation to reserve yet


on his part, can just dispose the property to anybody. He
can use the property or he can destroy the property. That
is why the propositus is called the ARBITER of the reserve
because it is within the hands of the propositus whether
or not the reserve will arise. If the propositus will destroy
the property, then reserva troncal cannot arise. If the
propositus reserves the property until his death, then
reserve troncal may arise. If the propositus has children
of his own, then reserve troncal cannot arise.

Upon the death of the propositus, the obligation to


reserve will now arise. The propositus died with no issues
and no children, then, the same property received from
the origin is transferred to the reservor (ascendant) by
OPERATION OF LAW.

When the propositus died with a will, what is transferred


by operation of law is the portion corresponding to the
legitime of the reservor. If there is NO will, the entire
property is transmitted to the reservor by operation of
law.

The very same property received by the propositus from


the origin must be the same property transferred to the
reservor

If the origin (ascendant) left an insurance policy where the


propositus was the beneficiary, there is no reserve if the
cash received by the propositus was inherited by his
mother because the proceeds from the insurance policy
were not received by the propositus from the origin but
from the insurance company.
RESERVOR

The reservor is not merely a usufructuary. He is the full


owner of the property. He can alienate, donate or pledge
the property. He owns the property but his ownership is
subject to a RESOLUTORY CONDITION. Upon the
happening of the resolutory condition, the ownership of
the reservor will be extinguished.

The resolutory condition is that upon the death of the


reservor, there must be reservees or relatives of the
descendant propositus who are LIVING AND WITHIN THE
3RD DEGREE OF CONSANGUINITY from the descendant
propositus. Upon the happening of this resolutory
condition, the ownership of the reservor is extinguished.

But the disposition again is also subject to the resolutory


condition that upon the death of the reservor (ascendant),
if there are living reservees, then the effect of the
alienation becomes ineffective.

If the reservor sold the property to a third person, the


obligation of the reservor, if it is a personal property, is
not to return but the estate of the reservor must pay the
value to the reservees.

If what was sold was a real property, if the 3 rd party is NOT


innocent, as such that he knows that the property is
subject to the reserve troncal, then that 3 rd party is
obliged to return the properties to the reservees.

RESERVEES

Reservees are 3rd degree relatives of the propositus.

Upon the death of the reservor, if there are still relatives


within the 3rd degree of the propositus who are still
living, then the ownership of the reservor is
extinguished and the property will now go to the
reservees.

The reservees inherit from the propositus, not from the


reservor. The reservor is actually a conditional heir of
the propositus.

The reservees already have rights to the property but


their inheritance is subject to the condition that they
must be living at the time of the death of the reservor.

During the lifetime of the reservor the reservees can


compel the reservor to furnish bond, security, mortgage
or to annotate the reserva because they already inherit
such property although conditional. But the right of
action of the reservees commences only from the death
of the reservor. As long as the reservor is alive, if the
reservor sells the property to the 3rd person, the
reservees cannot impugn the sale made by the
reservor. They only have the right to demand that the
reservor annotate the reserva or that the reservor give
security, bond or mortgage.

Reservees can sell the property themselves even if the


reservor is still alive.

This is not a case of future inheritance because the


reservees inherit not from the reservor but from the

23

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

propositus. This is a case of sale of future property or


emptio rei speratae. The sale of future property is valid
subject to the condition that it should exist.

ARTICLE 1461 NEW CIVIL CODE. Things having a


potential existence may be the object of the
contract of sale.
The efficacy of the sale of a mere hope or
expectancy is deemed subject to the condition that
the thing will come into existence.
The sale of a vain hope or expectancy is void.
(n)
How to know that a relative is within 1st, 2nd or 3rd
degree?
1st degree: parents,
2nd degree: grandparents, brothers and sisters
3rd degree:
great grandparents, uncles and aunts,
nephews and nieces

Collateral relatives are uncles & aunts, brothers &


sisters, nephews & nieces
Relatives in the direct line are parents,
grandparents and the great grandparents
Reserva troncal determines only a class of relatives
who would be entitled to the property after the death of
the testator. But as to who will specifically be entitled to
the property, follow the rule on legal or intestate
succession
In legal or intestate succession, the nearer relatives
exclude the farther. Those who are in the descending line
are favored than those who are in the ascending line. And
those who are in the direct line are favored other than
those who are in the collateral line.

The obligation of the reservors estate upon his death


if the property deteriorates includes:
1. reimburse the reservees for the value of the
deterioration from the security furnished by the
reservor; or
2. claim reimbursement from the estate of the reservor.
2 theories on the value of the reserva:
1.
Under the theory of RESERVA MAXIMA, all that can
be embraced or included in the legitime shall be
considered as reservable property.
2.
Under the theory of RESERVA MINIMA, only HALF of
the property received from the origin to the descendant is
transferred to the ascendant reservor as legitime.
Example: Propositus inherits a land worth P500,000. Upon his
death, he also has P 1M worth of properties aside from the P
500,000.The descendant propositus has no issues and thus, all
his properties will go to his father (ascendant).
The
descendant made a will giving all his properties to his father.
If the father has no other properties, how much should be the
value of the properties came from the propositus should the
reservor (father) reserve in favor of the reservees?

The legitime of the ascendant is P750,000, which is from P


1.5 M divided by 2.
Under the theory of reserve
maxima, the reservable property is that which can be
embraced in the legitime. As such, the entire P 500,000 is
reservable because it can be embraced in the whole
legitime worth P 750,000. Out of the legitime,
P
500,000 is reservable and P 250,000 is property owned by
the descendant.

Under the theory of reserva minima, only half of the


property received from the origin to the descendant is
reservable. So, half of P 500,000 and half of P 1M will be
part of the legitime, which is equal to P 750,000. Thus, the
reservable property is only P 250,000, which is half of the
property received from the origin to the descendant.
Example: Propositus inherits a land worth P 1M. Upon his
death, he also has P 500,00 worth of properties aside from the
P 1M.The descendant propositus has no issues and thus, all his
properties will go to his father (ascendant). The descendant
made a will giving all his properties to his father. If the father
has no other properties, how much should be the value of the
properties came from the propositus should the reservor
(father) reserve in favor of the reservees?

The legitime of the ascendant is P750,000, which is from P


1.5 M divided by 2.
Under the theory of reserve
maxima, the reservable property is that which can be
embraced in the legitime. As such, only P 750,000 is

reservable because it is only up to such amount that


can be embraced in the whole legitime worth P
750,000.
Under the theory of reserva minima, only half of the
property received from the origin to the descendant is
reservable. So, half of P 1M and half of P 500,00 will be
part of the legitime, which is equal to P 750,000. Thus,
the reservable property is only P 500,000, which is half
of the property received from the origin to the
descendant.
The reserva maxima theory is more in keeping with
Article 891. Reserva minima is more in keeping with
equity and justice. What is followed is reserva
minima.

If there is no will:

The entire property which came from the other


ascendant is reservable because the entire property
was transferred to the ascendant by operation of law
because there is no will. So, the entire P 500,000 is
reservable from the first example and the entire P 1M is
reservable from the second example if there was no
will.

When there is a will, only that part which corresponds to


the legitime is transferred by operation of law.

But if there is no will then everything is reservable


How is reserva maxima extinguished?
1.
Upon the death of reservoir
2.
Upon the death of ALL the would-be reservees
ahead of the reservoir
3.
Upon the loss of the reservable properties without
the fault or negligence of the reservoir
4.
Upon prescription Adverse possession as against
reservees by the reservoir or a stranger of the
reservable property as free from reserva for 30 years if
it is a real property and 8 years if it is a personal
property. In order for prescription to run, the fact that
the reservor repudiates or hold the property free from
the reserva must be communicated to the reservees,
the reservees must know that the reservor is holding
the property as free from the reserva otherwise there
will be no prescription.
5.
Upon registration under the Torrens System as free
from the reservation.
6.
Upon renunciation or waiver by ALL reservees
AFTER the death of the reservoir

Reservable property is not extinguished by the


government. It will just continue on the indemnity or
just compensation
If the reservable property is insured and then,
destroyed, there is reserve on the insurance indemnity
or proceeds thereof

Bar Question:
What do you understand by the
DELAYED INTESTACY THEORY?
This is the theory that is applied in RESERVA TRONCAL.
Remember, in RESERVA TRONCAL, the reservor inherits from
the propositus.
The reservee also inherit from the
propositus.
However, the inheritance by the reservee from the
propositus is delayed until after the death of the reservor.
The inheritance of the reservee from the propositus is by
virtue of legal or intestate succession. Remember, even if
the propositus dies testate or with a will, that only refers to
the inheritance of the reservor. But, with respect to the
reservee, what governs is the law on legal or intestate
succession.
That is the concept of DELAYED INTESTACY when the
resolutory condition of the reservor is fulfilled, the properties
are distributed to the reservees as if they are inheriting from
the propositus at the time of the fulfillment of the condition.
Since there is no will, then, the reservees inherit by virtue of
intestate succession, the decedent being the propositus.
The inheritance of the reservees are delayed.
ARTICLE 892.
If only one legitimate child or descendant
of the deceased survives, the widow or widower shall be
entitled to one-fourth of the hereditary estate. In case of a
legal separation, the surviving spouse may inherit if it was
the deceased who had given cause for the same.
If there are two or more legitimate children or
descendants, the surviving spouse shall be entitled to a

24

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

portion equal to the legitime of each of the legitimate children


or descendants.
In both cases, the legitime of the surviving spouse shall
be taken from the portion that can be freely disposed of by the
testator. (834a)

If there is only one legitimate child, the legitime of the


surviving spouse would be of the net hereditary estate
to be taken from the free portion
The guilty spouse shall be disqualified from inheriting
from the innocent spouse but the innocent spouse can still
inherit from the guilty spouse.
If there are 2 or more legitimate children, the surviving
spouse can inherit from the deceased even if there was
legal separation and the deceased spouse gave cause for
the legal separation

ARTICLE 897.
When the widow or widower survives with
legitimate children or descendants, and acknowledged
natural children, or natural children by legal fiction, such
surviving spouse shall be entitled to a portion equal to the
legitime of each of the legitimate children which must be
taken from that part of the estate which the testator can
freely dispose of. (n)

ARTICLE 893.
If the testator leaves no legitimate
descendants, but leaves legitimate ascendants, the surviving
spouse shall have a right to one-fourth of the hereditary
estate.
This fourth shall be taken from the free portion of the
estate. (836a)

In here, the surviving spouse concurs with the legitimate


ascendants. There are no legitimate children
The share of the legitimate ascendant is one-half. The
share of the surviving spouse is to be taken from the
free portion
In order to memorize effectively, you have to memorize
first the share of the surviving spouse.

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)

In this scenario, the survivors are the spouse and the


illegitimate children.

The share would be 1/3 each. The remaining 1/3 would be


the free portion.

The share of the surviving spouse is not taken from the


free portion

The legitimes of the legitimate children and the legitimate


parents would always be

The legitimes of the surviving spouse and the illegitimate


children may vary.
ARTICLE 895.
The legitime of each of the acknowledged
natural children and each of the natural children by legal
fiction shall consist of one-half of the legitime of each of the
legitimate children or descendants.
The legitime of an illegitimate child who is neither an
acknowledged natural, nor a natural child by legal fiction, shall
be equal in every case to four-fifths of the legitime of an
acknowledged natural child.
The legitime of the illegitimate children shall be taken
from the portion of the estate at the free disposal of the
testator, provided that in no case shall the total legitime of
such illegitimate children exceed that free portion, and that
the legitime of the surviving spouse must first be fully
satisfied. (840a)

Note that under the Family Code, there are no longer


acknowledged natural, natural child by legal fiction. We
only have legitimate or illegitimate children.
With respect to illegitimate children, they are entitled to
one-half of the share of one legitimate child
In the distribution of legitimes, you first have to satisfy the
legitime of legitimate children and then, the surviving
spouse which should be taken from the free portion. And
whatever remains, divide it equally among the illegitimate
children

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. (841a)

In this scenario, the illegitimate children survive with the


legitimate parents of the testator
to the parents and to the illegitimate children

Illegitimate children DO NOT exclude the legitimate


parents or ascendants whereas legitimate children
excludes legitimate parents or ascendants

The widow or the surviving spouse concur with


legitimate children and illegitimate children
If there is only 1 legitimate children, the surviving
spouse gets
If there are 2 or more legitimate children, the spouse
shall be entitled to a share which is equivalent to a
share of one of the legitimate child
For the illegitimate children, the share would be of
the share of 1 legitimate child

ARTICLE 898.
If the widow or widower survives with
legitimate children or descendants, and with illegitimate
children other than acknowledged natural, or natural
children by legal fiction, the share of the surviving spouse
shall be the same as that provided in the preceding article.
(n)
ARTICLE 899.
When the widow or widower survives with
legitimate parents or ascendants and with illegitimate
children, such surviving spouse shall be entitled to oneeighth 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)

The survivors here are the legitimate parents,


illegitimate children and the spouse.
To the legitimate parents , to the illegitimate children
to be taken from the free portion and to the surviving
spouse 1/8 to be taken from the free portion.

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. (837a)
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. (n)

The only survivor here is the spouse

GENERAL RULE: The spouse shall be entitled to of the net


hereditary estate if he/she is the only survivor.
EXCEPTION: The spouse shall be entitled to 1/3 if:
1. The marriage was celebrated in articulo mortis and
2. the other spouse died within 3 months from the
celebration of the marriage

The spouse who is at the point of death during the


marriage must be the one who should die

The cause of death must be the very same reason


why the marriage was in articulo mortis
EXCEPTION TO THE EXCEPTION: Surviving spouse gets 1/2
even if the testator or the testatrix died within 3 months
from time of celebration of marriage wherein the couple had
been living previously as husband and wife for more than 5
years

This provision is only true with respect to testate


succession. When it comes to intestate or legal
succession, this provision does not apply.

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.

25

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

The other half shall be at the free disposal of the testator.


(842a)

The only survivors here are the illegitimate children.


They are entitled to of the estate. The other half is
considered as the free portion.

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. (843a)

If the illegitimate child died ahead of his parents and


he also has his own children legitimate or illegitimate, all
of
these
children
will
inherit
by
Right
of
Representation. They will get whatever rights their
parents have.
The right of an illegitimate child passes to his children
whether legitimate or illegitimate.
In the case of a legitimate child, his own illegitimate
child cannot represent.

ARTICLE 903.
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. (n)

The parents under this article are the illegitimate


parents (parents of an illegitimate child)
The presence of legitimate children will exclude the
legitimate parents. But legitimate parents, in the absence
of legitimate children, will concur with the illegitimate
children.
With respect to the illegitimate parents of the
testator, they are excluded by the presence of the
children of the testator whether his children are legitimate
or illegitimate.
The illegitimate parents are only secondary
compulsory heirs because they inherit their legitimes only
in the absence of the legitimate or illegitimate children or
descendants of the decedent
Article 903 refers to only to illegitimate parents and
not to other ascendants like the parents of the illegitimate
parents.
Thus, the rule here is different from the case of the
grandparents of a legitimate child, for they may inherit in
default of both legitimate parents

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. (813a)

Even without the will of the testator, the compulsory


heirs are always entitled to their legitimes
The only way to deprive the compulsory heirs of their
legitime is by expressly disinheriting them in a will,
wherein the legal cause therefore shall be specified.
Only the Free portion of the estate that the testator
can give away is subject to certain condition, substitution
or burden.
But the law states except in cases expressly specified
by law.

Burdens that the testator may impose on the legitime:


In accordance with law:
1. A prohibition to partition the legitime is valid for a
period not exceeding 20 years
2. Reserva Troncal is also a burden insofar as the
legitime of the reservor or reservista is concerned.
ARTICLE 905.
Every renunciation or compromise as
regards a future legitime between the person owing it and his
compulsory heirs is void, and the latter may claim the same
upon the death of the former; but they must bring to collation
whatever they may have received by virtue of the renunciation
or compromise. (816)

During the lifetime of the testator, the heirs only


have inchoate right over the properties of the testator
as well as to their legitime
The right to their legitime only becomes vested
when the testator dies
There can be no renunciation or compromise that
can be made based upon a right that is yet an
expectancy or an inchoate right
Even if the compromise is made among the
compulsory heirs themselves, such compromise would
still not be valid.
There can be renunciation of or compromise on
present legitime because the subject matter is no
longer a future inheritance
To reconcile with a waiver of a hereditary right, a
waiver of hereditary right is executed after the death of
the testator. Hereditary right means your right to the
inheritance. But in Article 905, we are talking here of
future inheritance or future legitime executed during
the lifetime of the testator.
You can waive your right to the inheritance and that
can be executed because from the moment of death of
the testator, the right of heirs to the estate already
becomes vested even if there is still no distribution.

ARTICLE 906.
Any compulsory heir to whom the testator
has left by any title less than the legitime belonging to him
may demand that the same be fully satisfied. (815)

Article 906 talks about completion of legitime


In this case, a compulsory heir has been given his
legitime by means of donation, condonation, remission,
devise, legacy as long as the giving of the title is
gratuitous

COMPLETION OF
LEGITIME (Article 906)
Part of the estate is given to
the
compulsory
heirs
although the amount is
equivalent to the legitime
but less than the legitime.
All you have to do is to give
whatever amount that is
lacking.
The will remains

PRETERITION
There is total omission so
nothing is given to the
compulsory heir during the
lifetime or in the will, nothing
at all in the inheritance.
We annul the institution of
heirs.
The will is invalidated but
legacies and devises which
are not inofficious shall be
respected.

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. (817)

Article 907 talks about testamentary disposition


that impair or diminish the legitime of compulsory heirs
By analogy, this article applies to donation inter
vivos. Donations which impair (donation inter vivos)
the legitime shall be reduced on petition of the
compulsory heirs.
When you apply inofficious donation, only the
compulsory heirs can assail that the donation shall be
reduced because it impairs their legitime.
The creditor cannot petition that donation inter
vivos which are inofficious be reduced

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. (818a)

If you do not arrive at the correct net hereditary


estate, all your computation of the legitimes would be
wrong
You add the donations made during the lifetime of
the testator. That is the process of COLLATION.
In collation, you do not actually return the property
physically but only the value thereof is considered as
part of the estate

26

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Donations are collated because it would be easy for


the testator to circumvent the law on legitime by donating
all his properties during his lifetime so that nothing would
be left for his compulsory heirs at the time of his death.
Donations which are inofficious cannot be assailed by
creditors except when the donation is in fraud of the
creditor
The value to be considered is the value of the
property donated at the time it was donated, not the
value upon the death of the testator
Remember that donations to spouses are void. Since
it is void, it is still part of the estate and so, there is
nothing to collate because it was not deducted

Example:
Donations
X
P 100,000
Y
P 350,000
Estate:
Less:
Debts
Taxes

Estate: P2,500,000
Debts:
250,000
Taxes:
150,000
P 2,500,000
( 250,000)
(
50,000)
---------------P 2,100,000

Add:
Donations (X)
Donations (Y)

100,000
350,000
---------------NET HEREDITARY ESTATE P 2,550,000
========
Remedies provided for by law in assuring that the
compulsory heirs would receive their legitime:
1.
Preterition where even if the
testator omits the compulsory heirs in his estate, the law
assures that the compulsory heirs would still receive their
inheritance.
2.
Collation where even if the
testator already dispose all his properties during his
lifetime, still, the compulsory heirs are assured of their
legitime.
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. (819a)

Remember that in succession, a stranger is one who


is not a compulsory heir of the testator
Donations made to strangers during the lifetime of
the testator are charged to the free portion.
Donations to strangers should be collated, otherwise,
the legitime of the compulsory heirs will be impaired
If there is no free portion to speak of, the donation
becomes inofficious. As such, there has to be a reduction
or a return of the property donated.

The estate is already consumed with what due to the


legitimate child, the spouse and the illegitimate child. In
this case, there is no more free portion left. Thus, the
donation becomes inofficious. In addition, the legacy to M
cannot be given effect because there is no free portion
anymore
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. (847a)
ARTICLE 911. After the legitime has been determined in
accordance with the three preceding articles, the reduction
shall be made as follows:
(1) Donations shall be respected as long as the legitime
can be covered, reducing or annulling, if necessary, the
devises or
legacies made in the will;
(2) The reduction of the devises or legacies shall be pro
rata, without
any distinction whatever.
If the testator has directed that a certain devise or
legacy be
paid in preference to others, it shall not
suffer any reduction until the latter have been applied in
full to the payment of the legitime.
(3) If the devise or legacy consists of a usufruct or life
annuity, whose value may be considered greater than that
of the disposable portion, the compulsory heirs may choose
between complying
with the testamentary provision
and delivering to the devisee or
legatee the part of the
inheritance of which the testator could
freely dispose.
(820a)
Order of priority:
1. Legitime
2. Donations
3. Preferred legacy or devise; and
4. All other pro-rata
Steps to be followed under Article 911:
1.
Determine the Net Hereditary Estate (NHE);
How?
Gross Estate
Less: Debts & charges
Plus: Donations subject to Collation
2.
Determine the legitime of the compulsory heirs
based on #1;
3.
Add total value of all of all the legitimes of all the
compulsory heirs;
4.
Deduct the total value of the legitimes in #3 from
the Net Hereditary Estate in #1 to arrive at the free
disposal;
5.
Charge the donations to compulsory heirs to their
legitimes. In case of excess of donations over the
legitime, charge excess to free disposal;
6.
Charge the donations to strangers to the free
disposal;
7.
Charge PREFERRED legacies/devises to free
disposal;
8.
Charge all other legacies/devises to free disposal;
9.
In case free disposal is insufficient, reduce the
legacies, donations etc in the order of priority.
How?
1. Donation to strangers;
2. If there is still an excess, then you charge the
legacies & devises;
3. If still insufficient, all others.

Example: Same data as in the previous example in Article 908


Legitime = P 2,550,000 / 2
= P 1,275,000
Donation made to X is considered as an advance. Upon
distribution, he will only receive P 1,175,000.
Donation made to Y shall be charged to the free portion:
P 1,275,000 350,000 = P 925,000
The remaining free portion is P 925,000 because the
testator already disposed P 350,000 in advance. This is not
inofficious because it can be accommodated in the free
portion.
Assuming that the testator in his will made a legacy to M
worth P 500,000. The testator is survived a by a spouse, a
legitimate child and an illegitimate child. A donation to Y
worth P 350,000 was also made.
Legitimate child
P 1,275,000
Spouse
637,500 (1,275,000/2)
Y
350,000
Illegitimate child
637,500

Article 911 is when there are compulsory heirs


AND/OR there are donations subject to collations

Example:
Net Hereditary Estate
P 2,550,000
Donations: Legitimate child
P 100,000
X (friend)
350,000
M (legacy)
500,000
N (devise)
200,000
Testator is survived by a spouse and a legitimate child.
Legitimate child
Spouse
Free Portion

P 1,275,000
637,500
--------------P 637,500

27

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

The free portion is not sufficient to accommodate the


donation, the legacy, and the devise.
Donations are preferred as long as the legitime can be
covered, reducing or annulling, if necessary, the devises or
legacies made in the will.
Free Portion
Donation to X (friend)
Remaining Free Portion

P 637,500
350,000
-----------P 287,500

Review on LEGITIME

The remaining free portion is to be distributed pro-rata


since the testator did not prefer a certain devise or legacy.
Legacy: 5/7 x 287,500 = P 205, 357.14
Devise: 2/7 x 287,500 = P 82, 142.86

If there are preferred legacy or devise, for example,


the testator says that the legacy to M is preferred,
therefore, of the P287,500 remaining, this will all be given
as legacy to M. The whole P 500,000 cannot be given
because the net estate is not sufficient. But because it is
preferred, it shall be given ahead of the devise. In that
case, the devise will not be given anymore.
If there were 2 or more donations, they shall be
respected equally if made at the same time. It shall be
apportioned the same with the legacy and devise, which
means pro-rata.
If there were 2 or more donations made on different
dates, the earlier one shall be respected. The more
recent donations are less preferred than the donations
earlier made because there is a presumption that it was
made first.
This means that the testator has more
preference or affection for that person to whom he made
that first donation. That is if the donations are made on
different dates.

ARTICLE 912.
If the devise subject to reduction should
consist of real property, which cannot be conveniently divided,
it shall go to the devisee if the reduction does not absorb onehalf of its value; and in a contrary case, to the compulsory
heirs; but the former and the latter shall reimburse each other
in cash for what respectively belongs to them.
The devisee who is entitled to a legitime may retain the
entire property, provided its value does not exceed that of the
disposable portion and of the share pertaining to him as
legitime. (821)

In this case, the devise subject to reduction cannot be


conveniently divided
According to Article 912, if the reduction does not
absorb of its value, it shall go to the devisee and the
devisee will just pay the compulsory heirs for such value
If the reduction absorbs more than of its value, it
shall go to the compulsory heirs and the compulsory heirs
will just pay the devisee for such value
If it is exactly of its value, the real property shall go
to the devisee if you apply the article literally, you would
be defeating the intent of the testator. The devisee will
just pay the compulsory heirs for the value

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. (822)

If the legatee or devisee does not want to exercise


the right under Article 912, the other parties (heir or
devisee) may exercise the right on behalf of the party
who does not wish to exercise the right
If none of the parties have the interest to exercise the
right or reimbursement or retention, the property may just
be sold at a public auction at the instance of any
interested party such as a creditor of the estate

ARTICLE 914.
The testator may devise and bequeath the
free portion as he may deem fit. (n)

After all the legitimes of the compulsory heirs have


been satisfied, including the surviving spouse and the
illegitimate children, the free disposal may be given by

the testator to anybody provided that there is no


prohibition by law.
If he gives the free disposal to his concubine, that
is not allowed

1.

MEMORIZE the legitime of the compulsory


heirs
For easy memorization, maybe, you first start with
the legitime of the surviving spouse because the
legitime of the surviving spouse varies according to the
other concurring heirs.
Surviving spouse with 1 legitimate child
Legitimate child
=

2. If there are 2 or more legitimate children, the share of


the surviving spouse changes:
Surviving spouse
= share of 1 legitimate child
Legitimate child
= 1/2
3.

Spouse surviving with the parents of the testator:


Surviving spouse
=
Parents
=
If there are illegitimate children:
Surviving spouse
= 1/8

4.

Spouse survives with illegitimate children only:


Surviving spouse
= 1/3
Illegitimate children = 1/3

5.

If the spouse is the only survivor


=
If marriage celebrated articulo mortis and the other
spouse died within 3 months
= 1/3
If they have been living together for 5 years =

Legitimate children always


Legitimate parents always
Illegitimate children always of the share of 1
legitimate child unless there are many illegitimate
children and the estate is not enough to accommodate
their share. In that case, divide the remainder among
the illegitimate children.
SECTION 6
Disinheritance

ARTICLE 915.
A compulsory heir may, in consequence of
disinheritance, be deprived of his legitime, for causes
expressly stated by law. (848a)

Article 915 talks about the consequence of being


disinherited
DISINHERITANCE 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.
Disinheritance refers only to a compulsory heir
Disinheritance is made through a testamentary
disposition. There must be a will.
There is no disinheritance in legal or intestate
succession, only in testate succession
Disinheritance can be made only for causes
expressly stated by law

Ways of depriving the compulsory heir of his legitime


1.
Disinheritance (Article 915)
2.
Repudiation of the inheritance - the act of the heir
himself
3.
Incapacity by reason of unworthiness
4.
Predecease - the actual or presumptive death of
the heir
5.
Loss of the estate
6.
When the death or charges are equal to or more
than the value of the estate
ARTICLE 916.
Disinheritance can be effected only
through a will wherein the legal cause therefor shall be
specified. (849)
Requisites for a valid disinheritance:
1. The disinheritance must be made in valid will

28

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

2.
3.
4.
5.

6.
7.
8.
9.

The disinheritance can also be effected by virtue of a


codicil

Disinheritance can also be made in a separate will

Disinheritance can also be made in Incorporation By


Reference
The disinheritance must be made expressly, not impliedly
There must be a legal cause for the disinheritance
The disinheritance must be made for a true cause
The disinheritance must be for and existing cause

A conditional disinheritance is not allowed:


I will disinherit my son if he will kill me in the
future

But a conditional revocation of disinheritance is


allowed:
My son attempted for my life. I will disinherit him.
But if he will ask for my forgiveness, I will revoke
the disinheritance
The disinheritance must be total or complete
The cause must be stated in the will itself
The heir disinherited must be clearly identified, so that
there will be no doubt as to who is really being
disinherited
The will in which the disinheritance is stated must not
have been revoked, at least in so far as the
disinheritance is concerned

is total.
With cause
cause

or

without

Annuls the institution


May exist with or without a
will.
Q: How does preterition
exist without a will?
A: During the lifetime of the
testator, he can make
donations
and
the
donations will be collated
later on.
If during his
lifetime, he gave all his
properties to one of his
children. So upon his
death, there is nothing left.
So upon his death, there is
no will but still there is
preterition because there is
omission.
The institution is always
void

ARTICLE 917.
The burden of proving the truth of the cause
for disinheritance shall rest upon the other heirs of the
testator, if the disinherited heir should deny it. (850)
ARTICLE 918.
Disinheritance without a specification of the
cause, or for a cause the truth of which, if contradicted, is not
proved, or which is not one of those set forth in this Code,
shall annul the institution of heirs insofar as it may prejudice
the person disinherited; but the devises and legacies and
other testamentary dispositions shall be valid to such extent
as will not impair the legitime. (851a)

Article 918 talks of invalid disinheritance

Instances wherein there is ineffective disinheritance:


1. Disinheritance without specification of the cause
2. For a cause which is not a true cause
3. For a cause not given in law
Consequence if there is an invalid disinheritance

It shall annul the institution of the heirs but in so far


as only for the purpose of completing the legitime of the
compulsory heir

But the devises and legacies and other testamentary


dispositions shall be valid to such extent as will not impair
the legitime
EXAMPLE # 1:
The testator instituted A and B in his will and disinherited
C for the reason that C is ugly . A, B and C are all his
legitimate children. His estate is worth P 120,000.
The effect is it shall annul the institution of heirs insofar as
only it may prejudice the legitime of the invalidly disinherited
heir.
Legitime = P 120,000 / 2
= P 60,000
Legitime of each child = P 60,000 / 3
= P 20,000
Distribution:
C
=
P 20,000 (legitime)
A
=
P 20,000 + 30,000 = P 50,000
B
=
P 20,000 + 30,000 = P 50,000
EXAMPLE # 2:
Same example with additional data that X is given a
legacy of P 30,000 cash.
C = P 20,000
A = P 20,000 + P 15,000
B = P 20,000 + P 15,000
X = P 30,000

Remember, in the order of distribution, the devise or


legacy shall be given ahead of the inheritance.

PRETERITION
The omission may be either
intentional or unintentional
as long as the deprivation

VALID DISINHERITANCE
Disinheritance
is
always
intentional because it has to
be provided for in the will.

PRETERITION
The institution of heirs is
completely annulled
If there is a devise or
legacy, he will receive the
devise or legacy as long as
it is not inofficious
It
is
important
to
distinguish whether the
person is an instituted heir
or a devisee or legatee

The cause must be provided


for by law. (Articles 920 & 921
NCC)
The disinherited heir inherits
nothing from the legitime &
the free portion.
There must always be a will

The institution will be followed


unless there is another cause
for
not
following
the
institution
which
is
not
because of the disinheritance
but for other causes.
IMPERFECT
DISINHERITANCE
The institution remains valid,
but must be reduced insofar
as the legitime has been
impaired
Devises, legacies or other
testamentary
dispositions
shall be valid. Even if the
person is just an instituted
heir, he will still receive his
share or inheritance.
Even if the person is just an
instituted heir, as long as the
institution does not prejudice
the legitime of the invalidly
disinherited heir, then, that
heir
shall
receive
the
inheritance

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. (756, 853, 674a)

Article 919 talks about the grounds for


disinheritance
Under Article 919, the person who is disinherited is
a child or descendant of the testator, whether that child
is legitimate or 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

There is final judgment or conviction already

29

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

At the time of the execution of the will, it is not


necessary that the judgment is final
He can be found guilty and the judgment may
become final after the death as long as it becomes
final. Disinheritance can be given effect once the
judgment becomes final already. There must be an
intent to kill.
Even if the descendant is just an accomplice or
accessory, this paragraph applies
Even if the law says attempt, the more reason that
frustrated and consummated stages are to be
included

(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. (756, 854, 674a)

(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

The accusation be groundless

The crime being referred here is against anybody


Accusations referred in this paragraph:
1. It may include the institution of a criminal action
2. You testify in a case against your parents or
ascendants involving a crime which carries a penalty
of 6 years or more
3. Statements wherein you affirm the accusations made
against your parents, ascendants.

(1) When the parents have abandoned their children or


induced their daughters to live a corrupt or immoral
life, or attempted against their virtue

Abandonment here does not even have to amount


to a crime as long as he has already deprived his
child of the basic necessity or he has not been seen
for a number of years

Abandonment refers to either physical, educational


or moral as long as you neglect your child

This may be applied by analogy to sons

This article deals with the causes disinheriting


an ascendant
The disinherited heir may controvert the grounds
stated in the will

(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

There has to be another will made

(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

Numbers 2, 3, 4, and 5 are the same as those in


Article 919

(5) A refusal without justifiable cause to support the parent or


ascendant who disinherits such child or descendant

The determination whether or not the refusal of the


child is without just cause will depend upon the
means of the child and the necessity of the
ascendant

(6) The loss of parental authority for causes specified in


this Code

In this case, this should refer to those causes by


which the parent or ascendant is at fault. These
causes are provided for in Article 330 and 332 of
the Civil Code.

(6) Maltreatment of the testator by word or deed, by the child


or descendant

This ground of maltreatment is present only with


respect to disinheritance of a descendant

ARTICLE 330 NEW CIVIL CODE. The father and in a


proper case the mother, shall lose authority over
their children:
(1) When by final judgment in a criminal case the
penalty of deprivation of said authority is imposed
upon him or her;
(2) When by a final judgment in legal separation
proceedings such loss of authority is declared.
(169a)

(3) When a child or descendant has been convicted of


adultery or concubinage with the spouse of the testator

The law here says convicted of adultery or


concubinage, unlike the ground in legal separation
where preponderance of evidence is sufficient

There has to be conviction

(7) When a child or descendant leads a dishonorable or


disgraceful life

What is dishonorable or disgraceful life is a question


which is addressed to the judgment of the court but
generally, the act must not be an isolated or single
act

It has to be a way of life

The child or descendant may be a male or a female


(8) Conviction of a crime which carries with it the penalty of
civil interdiction

Generally, crimes which are punishable by death


penalty, reclusion perpertua and reclusion temporal,
all of these carry with it the accessory penalty of civil
interdiction
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;

ARTICLE 332 NEW CIVIL CODE. The courts may


deprive the parents of their authority or suspend
the exercise of the same if they should treat their
children with excessive harshness or should give
them corrupting orders, counsels, or examples, or
should make them beg or abandon them. In these
cases, the courts may also deprive the parents, in
whole or in part, of the usufruct over the child's
property, or adopt such measures as they may
deem advisable in the interest of the child. (171a)

A child under parental authority cannot execute a


will
If the parent regains parental authority, there are 2
views:
1.
The
disinheritance
will
remain
notwithstanding that the parent has regain his
or her parental authority because the reason
for the disinheritance is not really the loss of
parental authority but the cause for the loss of
parental authority.
2.
The disinheritance is already deemed
ineffective because upon the death of the child
there is really no more loss of parental
authority.

(7) The refusal to support the children or descendants


without justifiable cause

The same with Article 919

30

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

(8) An attempt by one of the parents against the life of the


other, unless there has been a reconciliation between
them.

The child, the son, the daughter or the grandchild


may disinherit his parent who has attempted against
the life of the other parent

No need for conviction because the law says attempt,


so mere attempt

But if there is a reconciliation between the parents,


then, the child cannot anymore disinherit because if
the offended party has deemed it proper to forgive
the other spouse, then, with more reason the child
because he is not the party directly offended
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. (756, 855, 674a)

When the spouse has given cause for legal separation

In this case, there is yet no decree of legal separation


but only the occurrence of the cause for legal
separation.

You do not have to secure a decree of legal


separation first before you can disinherit your spouse
who has given ground
Grounds for Legal Separation:
ARTICLE 55 NEW CIVIL CODE. 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. (97a)

Note that even if there is merely an attempt against


the life of the other spouse, it can be a ground for
disinheritance because it is a ground for legal
separation. In this ground, there is no conviction, but
mere attempt
But under Article 921, paragraph 1, take note that
what it provides is conviction: When the spouse has
been convicted of an attempt against the life of the
testator, his or her descendants, or ascendants

If one of the spouses attempt against the life of a


common child or descendant, there has to be
conviction in order that it may constitute a ground
for disinheritance because it is not a ground for
legal separation

If there already has been a decree of legal


separation, there is no more need to disinherit the
offending spouse because by operation of law, the
inheritance given to the other spouse is revoked and he
or she is also disqualified from inheriting from the
innocent spouse.

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. (856)

Reconciliation is the mutual restoration of


feelings to the status quo. It is a bilateral act. The
offended party must be able to forgive and the offender
must be able to accept the forgiveness.
If there is disinheritance and subsequently there is
reconciliation, then the disinheritance becomes
ineffectual
There is no reconciliation if it is merely a general
pardon wherein the testator forgives all who have
offended him because such is a unilateral act of the
testator

How is disinheritance revoked?


1.
There is subsequent reconciliation (so the
disinheritance shall be ineffective)
2.
By making the disinherited heir an
instituted heir
3.
By the revocation of a will containing
disinheritance
4.
By the disallowance of a will containing
the disinheritance
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. (857)

Article
923
talks
about
the
right
of
representation of the heirs of the disinherited
heir

EXAMPLE: Testator has 2 children, A and B. A has 2


children, C and D. A is disinherited. Even if A can no longer
inherit, C and D will now represent A but only with respect to
the legitime of A. The fault of A should not be imputed
against As heirs.

An heir who has been disinherited can be


represented
PER CAPITA means one inherits in his own right.
In the example, B inherits in his own right.
PER STIRPES means one inherits by virtue of
representation. In the example, C and D inherit as
representatives of A
When there is a will, representation takes place
only with respect to the legitime
But if there is no will, representation pertains to the
ENTIRE portion

A will containing only a disinheritance is an indirect


disposition. It is a valid will

PRINCIPLE: When there is a will, the representation


of the heir of the disinherited heir will only be to the
EXTENT OF THE LEGITIME. But with respect to the free
portion, that goes to the instituted heir UNLESS the will
does not dispose of the entire property and that there is
intestacy the own heirs of the disinherited heir may still
part of the free portion

The disinherited heir who is represented has no


usufruct or administration of the property which
constitutes the legitime. Even if his own children will
get the property which he should have gotten had he

31

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

not been disinherited, he cannot use it and he cannot


administer it

There is no representation with respect to the spouse.


right of representation pertains only to the descending
and direct line
There is no right of representation in the ascending
line
(END for Succession Review 1 1st Semester)

32

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

SECTION 7
Legacies and Devises
ARTICLE 924.
All things and rights which are within the
commerce of man may be bequeathed or devised. (865a)

Everything can be bequeathed or devise as long as


within the commerce of man

He is merely charged with he duty of delivering the very


same thing mentioned by the testator. He has no
liability for eviction.
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. (864a)

Things which cannot be bequeathed or devised:


1. Res Communes
2. Property of Public Dominion
3. Property of Public Use
4. Res Nullus
5. Illicit things
6. Purely Personal or Intransmissible Rights

GENERAL RULE: The legacy or devise shall be valid only to


that portion which is owned by the testator
EXCEPTION: If the testator EXPRESSLY declares that he
gives the thing in its entirety

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. (858a)

GENERAL RULE: When the will is silent, the estate has the
duty of effecting the legacy or devise
EXCEPTION: If the testator charges his heirs with the legacy or
devise, then ALL of the heirs, including the legatees or
devisees, has the duty of effecting the legacy or devise. The
value of the legacy or devise given by the heirs shall be
proportion to the shares which they received.
EXCEPTION TO THE EXCEPTION: But is a SPECIFIC HEIR or
LEGATEE OR DEVISES is charged with the burden of giving this
legacy or devise, then that legatee, devisee, or heir alone shall
bear the burden of giving out the legacy or devise. Even the
compulsory heirs may be charged with the burden of the
legacy or devise but it should not exceed the amount of the
free portion given
Kinds of Legacy

1.

LEGACY PROPER The estate has the duty to give


the legacy.

2.

PRE-LEGACY The duty is given to the estate but


the gift is given to a specific heir or legatee. The legacy is
made specific or determinate so a car, a house and lot but
still the duty to give the legacy or devise is upon the
estate.

3.

SUB-LEGACY/SUB-DEVISE this is the one referred


to under Article 925, when a legacy is charged to an heir,
or a legatee or a devisee.

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. (859)

Article 929 presupposes that the testator knows


that he is not the full owner of the thing but still he has
interest or he is a part owner
The knowledge of the testator can be proved by the
will itself or by evidence aliunde (evidence oustside the
will).
But if the testator wants to give the property in its
entirety, he must expressly provide it in the will.

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. (862a)
ARTICLE 929
The testator is a part-owner
or has a part interest AND
he knows that he a part
interest or ownership in the
thing bequeathed or devise.

ARTICLE 930
The testator has no interest
whatsoever
but
he
erroneously believed that he
owns the property.

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. (861a)
Article 930
The testator does not own
the
property
but
he
erroneously believed that he
owns the property

Article 931
The testator knows that the
property is not his and he
makes an ORDER that the
property shall be given to
the devisee or to the
legatee.
If theres an order, the
estate, or the heir, legatee
or devisee charged MUST
ACQUIRE it and give it to the
legatee or devisee.

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. (n)

If the owner of the property


demands an excessive price
or refuses to alienate the
property then, that is the
time when the estate, or the
heir, legatee or devisee
charged with the duty of
giving shall give a reasonable
or just value of the thing.

If the testator knows that he does not own the


property but gives it to the devisee or legatee and there
is no order that it shall be acquired by the estate, the
devise or legacy is still valid but the estate, or the heir,
legatee or devisee charged with the duty of giving the
property has a choice. He may have or acquire the
property and give it to the legatee or devisee or he may
just pay the just value.

If there is an order, follow the order


But if the owner of the property does not want to
alienate the property, the heir or the estate must pay
the just value
If there is no order that it shall be acquired by the
estate, the estate has the choice. He may just acquire
the property or pay the just value thereof.

Even if they are solidarily liable, the heir who is not


negligent can demand reimbursement form the one who
was negligent
If the thing is lost through a fortuitous event, the
heirs do not have any obligation to deliver.
If it is intentional, there is no solidary liability. The
one who is at fault is the only one liable.

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. (860)

If indeterminate or generic, the heir bound to deliver


is liable for eviction. There is warranty against eviction
because being indeterminate or being generic, the heir
charged should not have delivered thing which is
defective.
If specific, the heir is not liable because his duty is
merely to deliver what the testator has chosen. It is
beyond the power of the heir, legatee or devisee charged.

The order that the thing belonging to another be


acquired NEED NOT BE EXPRESS. It may be implied.

Remember the difference:

33

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Article 929 he owns only a part of the thing


Article 930 he does not own the thing and he does not
know that he does not own the thing
Article 931 he does not own the thing but at the time of
the execution of the will, he knew that he was not the
owner 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. (866a)

This article talks of a thing given as a devise or as a


legacy which at the time of the execution of the will
already belongs to the legatee or devisee
The point to remember is THE TIME OF THE
EXECUTION OF THE WILL
In this case, the legacy or devise would be void
because it would be a legal impossibility for the testator
to give to the legatee something that the legatee already
owns
Even if the thing is mortgaged to another person, the
mortgagor still remains to be the owner of the thing. The
legacy or devise will still be void.
But if there is an order from the testator that the
thing be saved from the mortgage, the legacy will be valid
only to such extent. Upon the death of the testator, the
estate has to pay the debt so that the property may be
saved from the mortgage.

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. (878a)

1st paragraph: At the time of the execution of the will,


the legatee or devisee is the owner
2nd paragraph: At the time of the execution of the will,
the legatee or devisee is NOT the owner. He can still get
something if he acquires the property subsequently by
virtue of onerous title. If it was acquired by gratuitous
title, he can claim nothing from the estate of the testator.
This also applies even if at the time of the execution
of the will, the testator was the owner of the thing.

What should be reimbursed?


1. If thru sale the price paid therefore
2. If thru barter the value of the thing exchanged
3. If thru an onerous donation (there is consideration,
not pure liberality) the value of the burden imposed
4. If thru adjudicacion en pago the value of the credit,
interest and cost
Who reimburses?
1. The estate if no one has been charged in particular
2. The heir, legatee, or devisee who has been charged
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. (867a)

Here, the property devised or bequeathed is subject


to a pledge or mortgage to secure a recoverable debt
The estate has the obligation to free the land from
the mortgage
This will apply even if the mortgage was made after
the execution of the will or before
The estate has no obligation to free the property from
the burden imposed by a bond because this article only
applies to a pledge or a mortgage or anything which
secures a recoverable debt. If the property bond is

constituted upon a property, that is not a recoverable


debt.
The same thing if the property is leased. The
estate has no obligation to free the land from the lease.
The lease is not a pledge or a mortgage.
In these cases, the legatee or devisee has the
obligation to respect the lease or have the obligation to
respect the property bond

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. (870a)

This article refers to LEGACY OF CREDIT and


LEGACY OF REMISSION
In Legacy of Credit, the testator (creditor) has
some receivables from X (debtor). In his will, the
testator provides that if upon his death, the said
obligation is not yet paid, then, A will have the right to
whatever amount is paid by X or A may proceed against
X.
The law says only as regards that part of the credit
or debt existing at the time of the death of the
testator
When property is acquired after the execution of
the will but before the death, those properties will
not pass to the heir (Article 793)
In Legacy of Remission, the testator provides
upon his death that whatever obligation X has at that
time is already condoned or remitted.
This refers to only such part existing at the time of
the death of the testator
This legacy of remission stands in the same status
as donation because when the testator dies, the
value of the debt should be added or collated to
the gross estate
The legacy of remission also carries with it the duty
of the estate of the testator to give the legatee an
acquittal, like a note indicating that the legatee has
no more debt

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. (871)

This is an example of REVOCATION BY


OPERATION OF LAW
The law presumes that by filing the action for
collection, the testator is no longer interested to give
the legacy
Action means judicial action. Mere demand letter
is not sufficient.
For the law to set in or for us to
presume that there is revocation by operation of law,
there has to be a judicial action.
A legacy that belongs to the legatee or devisee is
void.
Even if the legatee pledged the car to the
testator, but, that is just a pledge. There is no grant of
ownership to the testator. The legatee remains to be
the owner of the car. So, the status of the legacy is
void.
But, as a consequence of that legacy, the law
presumes that the testator is said to extinguish the
pledge already. The legatee cannot enforce the legacy
but he may enforce, as a legal consequence, that the
pledge is now extinguished.
Under Article 936, although there is a legacy of
remission and legacy of credit, still there is no warranty
on the part of the testator as to the existence or legality
of the credit or as to the solvency of the debtor.

34

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

obligations, is also applied but only in a suppletory


manner because the supreme law here is really the will
of the testator. If anything in the rule in obligations and
contract conflicts with the will of the testator, then the
will of the testator shall prevail.

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. (872)

This article specifically talks about legacy of release


or remission of debt
Only those existing at the time of the execution of the
will
The value of the debt remitted should not exceed the
portion which the testator can freely dispose of. It must
not exceed the free disposal.

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. (873a)

In this case, the testator is the debtor


The reason for the legacy is presumed as the
liberality of the testator
But if it is expressly declared by the testator that the
legacy or devise shall be applied to the debt, then, it may
be given effect
But, if it is another kind of property, you cannot force
the creditor to accept something which is not the
obligation

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. (n)

In this case, the testator is allotting a certain amount


of money in payment of his obligation which he believes
to exist, but in fact does not exist
As such, it is considered as not written because the
giving here is impelled by the wrong belief by the testator
If it is as payment for an obligation, the estate shall
pay only the exact amount which is due
If the debt of the testator has already prescribed but
the testator provided for the payment thereof in his will, it
should be given effect because this is governed by
NATURAL OBLIGATION

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.
(874a)

Article 940 talks about right of choice in an


alternative legacy or devise
This is just like in alternative obligations wherein the
delivery of one of the prestations is sufficient to
extinguish the entire obligation
It is the heir upon whom the obligation to give the
legacy or devise is imposed or if, for instance there is no
heir charged in particular, the executor or administrator of
the estate, who has the obligation to deliver
If before making the choice, the heir, the legatee or
devisee dies, the right to make the choice shall be
exercised by the heirs of such heir, legatee or devisee.
This is not a personal right. This is a transmissible
right.
Once the heir burdened exercised the right of choice,
then the legacy or devise ceases to become an alternative
one. It becomes pure and simple legacy.
Moreover, once the choice is exercised, that choice
becomes irrevocable
In alternative legacies or devises, the rule in
obligations and contracts with respect to alternative

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. (875a)

This article talks about the difference in the rule on


generic/indeterminate
personal
property
and
generic/indeterminate real property
The estate has the obligation to deliver such
personal property which is of middle quality.
This
depends upon the status of the estate or upon the
situation
But if you are talking of an immovable property, if
there if there is no other immovable property in the
estate, then, the devise is void.
The period to reckon if there is really such king of
thing existing in the estate of the testator is at the time
of the death of the testator

ARTICLE 942.
Whenever the testator expressly leaves
the right of choice to the heir, or to the legatee or devisee,
the former may give or the latter may choose whichever he
may prefer. (876a)

This article also talks about alternative legacy or


devise

GENERAL RULE: The right of choice belongs to the estate,


or the heir or legatee or devisee
EXCEPTION: If the testator will give the right of choice to
the heirs or legatee or devisee favored

The legatee or devisee can actually choose things


which are of superior quality or inferior quality or
medium quality. There is no obligation on his part to
choose only the one which is of medium quality.

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. (877a)

This is a reiteration of Article 940

Limitations of the right of choice: (in alternative


legacies/devisees
or
in
generic/indeterminate
legacies/devisees)
1. The choice is limited to things alternatively the
object of legacy or devise. If it is a generic legacy
of a car, he can choose only a car. He cannot
choose a house.
2. He cannot choose an illegal or impossible thing or
that which could not have been intended by the
testator.
3. No right of choice when among legacies or devises
only one is practicable.
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 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. (879a)

LEGACY OF EDUCATION

35

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

GENERAL RULE: The legacy of education lasts up to the


age of majority (18 years old)
EXCEPTION: Beyond the age of majority in order that the
legatee may finish some professional, vocational or
general course, provided he pursues his course diligently

LEGACY OF SUPPORT
GENERAL RULE: As long as the legatee is alive the legacy
for support lasts
EXCEPTION: The testator can provide otherwise
If the legacy is charged against the estate, then it
should not exceed the value of the free disposal
But if the legacy is charged against an heir or another
legatee, then the value should not exceed the inheritance
of that heir or legatee charged with the legacy for support
or education

ARTICLE 945.
If a periodical pension, or a certain annual,
monthly, or weekly amount is bequeathed, the legatee may
petition the court for the first installment upon the death of
the testator, and for the following ones which shall be due at
the beginning of each period; such payment shall not be
returned, even though the legatee should die before the
expiration of the period which has commenced. (880a)

The heir can petition for his allowance or pension


after the death of the testator for the 1st installment and
for the following ones, which shall be due at the beginning
of each period

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. (882a)

When do you petition?


1. The will must be admitted to probate
2. After the will is admitted to probate, the legatee can
petition the court for the delivery to him of the allowance
provided that the debts and taxes of the estate have been
paid first.

ARTICLE 781 NEW CIVIL CODE. The inheritance of a


person includes not only the property and the
transmissible rights and obligations existing at the
time of his death, but also those which have
accrued thereto since the opening of the
succession. (n)

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. (868a)

If the thing is subject to usufruct, the estate has no


obligation to free the thing from the usufruct because the
legatee or devisee has to respect the usufruct
This is related to Article 934
As long as the charge or burden is not to secure a
recoverable debt, that shall pass on to the heirs, legatees
or devisees

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. (881a)

A pure and simple legacy or devise is one that is


immediately demandable upon the death of the testator.
It is not subject to a condition, a term or a mode
As long as the testator is already dead, the right of
the legatee or devisee becomes vested already. If the
legatee or the devisee dies prior to the delivery of the
legacy or devise, his heirs may enforce the legacy or
devise.
It is different if the legatee or devisee dies ahead of
the testator. In that case, the heirs of the legatee or
devisee cannot demand from the estate. When it comes
to the free portion, there is no right of representation.
If the property is specific, then you acquire the
property from the testators death
If the property is generic, then from the time of the
selection. Although you have right to the legacy or devise
from the time of death but as to the property itself, you
have the right over the property from the time of selection
If it is alternative, from the time of selection also
If it is to be acquired from a stranger, from the time of
acquisition
If the legacy or devise is subject to a condition, as
long as the condition is fulfilled, it retroacts to the death
of the testator
If the legacy or devise is subject to a term, if the
legatee or devisee dies prior to the arrival of the term, he
acquired the right from the time of death but the right to
the property vests only upon the arrival of the term

This talks about specific or determinate thing


If a parcel of land is devised, growing fruits and
crops at the time of the death of the testator shall be
included in the delivery to the devisee. Those which
are already harvested or gathered no longer form part
of the devise or legacy. Only the growing crops are
included, by virtue of accession.
Unborn offsprings are also included
Uncollected income are also include. Uncollected
income are income that should have accrued after the
death of the testator
Accrued means it is already due and demandable
After-acquired properties (under Article 793) are
not to be included because they were acquired after the
institution of the will up to the time before the death of
the testator

ARTICLE 793 NEW CIVIL CODE. Property


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

2nd paragraph provides that from the moment of


death, the legatee or devisee becomes the owner. We
have the principle of res perit domino, wherein the
owner bears the risk of the loss. But he shall also bear
the benefit of the improvement.
But if the loss is by fault of anyone other than the
legatee/devisee, apply the rule on quasi-delict or
obligations and contracts.
Example: If there is a delay in the delivery of the
thing given as legacy/devise and the legatee/devisee
already demanded for it, and the thing is lost before the
delivery, the estate, the heir or legatee or devisee
burdened shall bear the loss.
The heir of the legatee/devisee in Article 948 need
not pay the testator for the expenses with respect to
the production under Article 443. The testator is not
considered as a third person. The legatee/devisee is
merely succeeding to the rights of the testator
Article 443 NEW CIVIL CODE. He who receives the
fruits has the obligation to pay the expenses made
by a third person in their production, gathering and
preservation.

Applicability of Article 948:


1. Simple and pure legacy/devise
2. Legacies and devises subject to resolutory
condition
3. Legacies and devises subject to suspensive
condition in view of the retroactive effect of the
condition once it is fulfilled
Bar Question: What is a Right of Ademption?

RIGHT OF ADEMPTION is the process of giving


effect inter vivos to a disposition mortis causa. He
wants to give effect to the legacy intervivos which is
disposition mortis causa during the lifetime of the
testator because the testator says the legacy is to be
effective if and only if I have not done this during my
lifetime.

36

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

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. (884a)

In Article 949, the devise or legacy is a generic thing


Money is generic, unless serial number is provided
The interest accrues only from the time of default.
There is default when there is already demand.

GENERAL RULE: The right to the fruit does not pertain to the
legatee/devisee prior to selection and even after the death of
the testator
EXCEPTION:
If the testator expressly provides that the
legatee/devisee will still get the fruits prior to selection
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. (887a)

1.

2.

3.

4.
5.

6.

Article 950 talks about the order of payment if the


estate is not sufficient to pay all the legacies or devises
(RPSESA)
R remuneratory legacies or devises
P - preferred
S - support
E - education
S specific things
A all others
Remuneratory legacies or devises
Those which are made by the testator in
consideration of the service made by the legatee or
devisee but that which does not constitute a recoverable
debt
Preferred legacy or devise
Those which are declared by the testator to be
preferred
Support
Under the Family Code, support comprises everything
indispensable food, shelter, clothing, education.
In succession, if we are talking of support, we do not
include education
Education
Specific Legacy or Devise
Even if it is specific legacy or devise but it is not yet
on the estate and it is to be acquired from another person
or another estate, it is not included in the legacy or devise
of a specific determinate thing. If the legacy/devise is to
be taken from another person to be given to the
legatee/devisee, that falls under all others pro-rata
Among all other pro-rata

Order under Article 911:


1. Legitime
2. Donations inter vivos
3. Preferred legacies/devises
4. All others pro rata
Article 911
This article is applied when
there is/are compulsory
heir/s AND/OR there are
donations inter vivos

Article 950
This article is applied when
there NO compulsory heirs
and their legitimes are in
danger of being impaired
AND/OR
there
are
NO
donations inter vivos. All you
have to do is, among the
legacies/devises
which
of
them should be given priority
over the other. If there are
compulsory heirs but their
legitimes are not impaired,
you apply Article 950.
If there are no compulsory heirs, there is no need to
collate the donations because the purpose of collation is
only to determine the legitime.

ARTICLE 951.
The thing bequeathed shall be delivered
with all its accessions and accessories and in the condition
in which it may be upon the death of the testator. (883a)
ARTICLE 952.
The heir, charged with a legacy or devise,
or the executor or administrator of the estate, must deliver
the very thing bequeathed if he is able to do so and cannot
discharge this obligation by paying its value.
Legacies of money must be paid in cash, even though
the heir or the estate may not have any.
The expenses necessary for the delivery of the thing
bequeathed shall be for the account of the heir or the
estate, but without prejudice to the legitime. (886a)

The obligation of the heir, legatee, devisee or


estate charged is to deliver the very same thing to be
given
The estate cannot just discharge the legacy or
devise by paying the value of the thing devised or
bequeathed
If the legacy is for cash, even if the estate has no
cash, the estate has to sell property so that it may
generate cash
Even in alternative legacies/devises, you have to
deliver the thing which is contemplated within the
selection
The burdened heir, legatee/devisee or the estate
shall bear the expenses for the delivery of the thing
bequeathed or devised. If he is a compulsory heir, the
expenses should not such as to affect the legitime of
compulsory heir.

ARTICLE 953.
The legatee or devisee cannot take
possession of the thing bequeathed upon his own authority,
but shall request its delivery and possession of the heir
charged with the legacy or devise, or of the executor or
administrator of the estate should he be authorized by the
court to deliver it. (885a)

There should be an authority by the court that the


thing shall now be delivered to the legatee or devisee
A legatee or devisee, from the moment of death,
theoretically, is already entitled to the legacy or devise.
But he cannot immediately demand the delivery
because there has to be proceedings conducted.
We are talking of testate proceedings because this
is legacy or devise.
The debts and obligations of the estate must first
be paid and afterwards, if there is excess, we now have
the delivery of the legacy, devise or inheritance.

ARTICLE 954.
The legatee or devisee cannot accept a
part of the legacy or devise and repudiate the other, if the
latter be onerous.
Should he die before having accepted the legacy or
devise, leaving several heirs, some of the latter may accept
and the others may repudiate the share respectively
belonging to them in the legacy or devise. (889a)

This article refers to one legacy or devise, which


partly onerous and partly gratuitous
The devisee cannot just accept the part which has
no burden imposed and repudiate the part which is
onerous
But he can choose to accept the onerous and reject
the gratuitous part
If the legatee or devisee dies, his right may be
exercise by his heirs

ARTICLE 955.
The legatee or devisee of two legacies or
devises, one of which is onerous, cannot renounce the
onerous one and accept the other. If both are onerous or
gratuitous, he shall be free to accept or renounce both, or to
renounce either. 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.
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. (890a)

Article 955 refers to two or more legacies or


devises

37

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

The same rule - the legatee or devisee cannot


renounce the onerous and accept the gratuitous.
If both are onerous or gratuitous, he can just accept
or renounce both or either, unless the testator intends
that the two legacies or devises shall be inseparable
A compulsory heir who is a legatee or devisee, may
waive his inheritance and accept the legacy or either way,
accept the inheritance and renounce the legacy or accept
both or renounce 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. (888a)

If the legatee or devisee does not want to accept or


cannot accept or is disqualified from accepting, it shall be
merged into the mass of the estate. It shall go by way of
legal succession, subject to the rights of substitution and
the rights of accretion
Remember that we have the rule on ISRAI as to the
order which has to be followed in case there is vacancy in
the portion inherited:
1. INSTITUTION
2. SUBSTITUTION
3. REPRESENTATION
4. ACCRETION
5. INTESTATE SUCCESSION

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. (869a)

The right to repurchase must be included in the


contract of sale itself or in the contract wherein the
testator alienated the thing devised or bequeathed
because if it is an absolute sale and then,
subsequently, he repurchases the property, the
devise should be void or it is revoked
If subsequently, the legatee or devisee acquires the
thing devised or bequeathed, then, it depends
whether or not his acquisition is by onerous title or
by gratuitous title
3. LOST OF THE THING

ARTICLE 958.
A mistake as to the name of the thing
bequeathed or devised, is of no consequence, if it is possible
to identify the thing which the testator intended to bequeath
or devise. (n)

This article is related to Article 789 and 844


If there is a mistake as to the name of the thing, it
is still possible to determine what is the thing referred
to by the testator as a devise or legacy. You can use
the rules of interpretation, especially, those rules in
latent or patent ambiguity.
So, the devise or legacy remains valid

ARTICLE 959.
A disposition made in general terms in
favor of the testator's relatives shall be understood to be in
favor of those nearest in degree. (751)

Article 957 talks of revocation of a legacy or devise


by operation of law. Because of the act performed by the
testator, the law presumes that there is revocation.

1. TRANSFORMS THE THING


The thing here refers to a specific thing because if it
is a generic thing then you do not know prior to
selection which of the thing in the estate of the
testator is being bequeathed or devised
The transformation must be IN FORM (appearance of
the thing) or IN DENOMINATION (name being given to
the thing)
When the testator transforms the thing such that it
does not retain the form or the denomination it had,
then, there is REVOCATION of the legacy or devise
and the legacy/devise becomes ineffective
2. ALIENATES THE THING
The alienation made by the testator should be made
with the intent to part with the thing
If the testator alienates PART of the property then the
revocation is only as to the part alienated. So only
partial not entire revocation
If after the alienation the thing should again belong to
the testator, the law says the legacy or devise shall
not thereafter be valid
Even if the alienation was void by reason of nullity of
the contract so that the property returns to the
testator, still the legacy or devise shall not be valid
If the alienation was annulled because there was
fraud or intimidation or mistake on the part of the
testator, the devise would be valid because the law
presupposes a voluntary alienation by the testator
If the reacquisition shall have been effected by virtue
of the exercise of the right repurchase, the devise or
legacy would still be valid

A thing is considered LOST when it perishes, goes


out of commerce or disappears in such a way that
its existence is unknown or it cannot be recovered
The thing is lost WITHOUT the fault of the testator
If the loss is the fault of the heir charged with the
obligation to deliver, then, the heir has the
obligation to pay the legatee for the value of the
thing lost
When the thing is not specific, it is generic or
determinate, then the choice pertains to the estate
or the legatee/devisee or the heir charged, in which
case they should not deliver a thing which has
defect

Article 959 talks of a COLLECTIVE INSTITUTION,


wherein there is a disposition made in general terms in
favor of the testators relatives
Under this article, the only rule to be followed is the
RULE OF PROXIMITY, the nearer relatives exclude the
farther.
There is no right of representation here and we do
not follow the rule that those who are in the descending
line are favored over those in the ascending line and
that those who are in the direct line are favored over
those who are in the collateral line. We just follow one
rule.
The law recognizes only those who are within the
5th degree within the collateral line as the legal relatives
of the testator. If there are no relatives within that line,
then, the estate shall be given in favor of the State.
If it is a direct line, there is no limit. But if you are
talking of a collateral line, only within the 5 th degree of
consanguinity.
If the testators words are to all those who are
entitled thereto, he would be referring to the legal or
intestate heirs.
We follow the rule on intestate
succession and thus, we are not limited by only one rule
on proximity.
If the testator says I am giving this house and lot
to the relatives of my wife, Article 959 cannot be
applied because Article 959 only refers to the testators
relatives.
CHAPTER 3
Legal or Intestate Succession
SECTION 1
General Provisions

ARTICLE 960.
Legal or intestate succession takes
place:
(1) If a person dies without a will, or with a void will, or one
which
has subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of
all the property belonging to the testator. In such case,

38

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

legal succession shall take place only with respect to the


property of which the
testator has not disposed;
(3) If the suspensive condition attached to the institution of
heir does
not happen or is not fulfilled, or if the heir
dies before the testator, or repudiates the inheritance, there
being no
substitution, and no right of accretion takes
place;
(4) When the heir instituted is incapable of succeeding,
except in
cases provided in this Code. (912a)

1.

2.

3.

4.

Article 960 gives you the instances when there will be


legal or intestate succession
In legal or intestate succession it is based on the
presumed will of the testator
Without a will, void will or subsequently lost its
validity
If a person dies without a will, his estate will go by
legal succession
The will becomes void when it does not comply with
the formalities required by law
By virtue of the revocation, the will loses validity.
Therefore, you cannot give effect to the will and the
estate will be disposed of by way of intestacy
No institution of heir
An example is when the will only provides for
disinheritance wherein the will is effective as to the
disinheritance and the rest of the estate shall go by
intestate succession
The will does not dispose of all the property belonging
to the testator.
In this case, there is mixed
succession
Suspensive condition is not fulfilled, predecease,
repudiates

Suspensive condition is one wherein the


institution is subject to the fulfillment of a condition.
If the condition does not happen, the institution
cannot be given effect.

If the heir dies ahead of the testator and there is


no representative to succeed, then, there is intestate
succession

In case of repudiation, there being no


substitution, no representative and no right of
accretion then, there is intestacy.
Incapacity
If incapacitated, it shall go by way of legal succession

Other instances where legal or intestate succession


takes place:
1. Preterition
2. Improper disinheritance
3. Fulfillment of a resolutory condition
4. Arrival of the resolutory period
Forced Succession
Succession to the legitime
regardless of the will of the
testator.
Even if it is
against the desire of the
testator, but the heirs are
compulsory heirs then, the
testator has to give to
these compulsory heirs.

Legal/intestate succession
The dispositions are provided
for by law because it is based
on the presumed will of the
testator.

ARTICLE 961.
In default of testamentary heirs, the law
vests the inheritance, in accordance with the rules hereinafter
set forth, in the legitimate and illegitimate relatives of the
deceased, in the surviving spouse, and in the State. (913a)

The legal and intestate heirs of the decedent are


legitimate children and descendants, illegitimate children
or descendants. In the absence of the legitimate children,
the legitimate parents or ascendants, we have the
surviving spouse and the state.
This article does not yet talk about the preference or
order but as to who are entitled to the estate in default of
testamentary heirs
Not all legal/intestate heirs are compulsory heirs. But
all compulsory heirs are legal heirs.
Brothers and sisters are legal heirs but they are not
compulsory heirs
There is no disinheritance in legal succession because
disinheritance occurs only when there is a will and that
the will must be a valid will

But there is EXCLUSION where legal heirs who are


NOT compulsory heirs are not given anything in the will
Even if you can exclude a legal heir who is not a
compulsory heir, you cannot exclude the State
If you do not have heirs within the 5 th degree then,
the property has to go to the State
There is representation of the excluded legal heirs

Kinds of exclusion:
1) Express Exclusion
2) Implied Exclusion
ARTICLE 962.
In every inheritance, the relative nearest
in degree excludes the more distant ones, saving the right
of representation when it properly takes place.
Relatives in the same degree shall inherit in equal
shares, subject to the provisions of article 1006 with respect
to relatives of the full and half blood, and of article 987,
paragraph 2, concerning division between the paternal and
maternal lines. (921a)
RULE ON PROXIMITY

The nearer excludes the farther


RULE OF EQUAL DIVISION
GENERAL RULE: Relatives in the same degree shall inherit in
equal share
EXCEPTIONS:
(1)
Article 1006 with respect to the relatives
of full blood and half blood. In legal succession, the full
blood relatives are entitled to twice as much as those of
the half-blood relatives.
(2)
Article 987 concerning the division
between the maternal and paternal lines
(3)
Right of representation
(4)
In legal succession and the same in
testamentary succession, illegitimate children only get
of the share of one legitimate child.
SUBSECTION 1
Relationship
ARTICLE 963.
Proximity of relationship is determined by
the number of generations. Each generation forms a degree.
(915)

Relationship is blood (consanguinity) or marriage


(affinity) tie uniting a person to another person

ARTICLE 964.
A series of degrees forms a line, which
may be either direct or collateral.
A direct line is that constituted by the series of degrees
among ascendants and descendants.
A collateral line is that constituted by the series of
degrees among persons who are not ascendants and
descendants, but who come from a common ancestor.
(916a)
ARTICLE 965.
The direct line is either descending or
ascending.
The former unites the head of the family with those who
descend from him.
The latter binds a person with those from whom he
descends. (917)
ARTICLE 966.
In the line, as many degrees are counted
as there are generations or persons, excluding the
progenitor.
In the direct line, ascent is made to the common
ancestor. Thus, the child is one degree removed from the
parent, two from the grandfather, and three from the greatgrandparent.
In the collateral line, ascent is made to the common
ancestor and then descent is made to the person with whom
the computation is to be made. Thus, a person is two
degrees removed from his brother, three from his uncle, who
is the brother of his father, four from his first cousin, and so
forth. (918a)
ARTICLE 967.
Full blood relationship is that existing
between persons who have the same father and the same
mother.
Half blood relationship is that existing between persons
who have the same father, but not the same mother, or the
same mother, but not the same father. (920a)

39

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

ARTICLE 968.
If there are several relatives of the same
degree, and one or some of them are unwilling or
incapacitated to succeed, his portion shall accrue to the others
of the same degree, save the right of representation when it
should take place. (922)
ARTICLE 969.
If the inheritance should be repudiated by
the nearest relative, should there be one only, or by all the
nearest relatives called by law to succeed, should there be
several, those of the following degree shall inherit in their own
right and cannot represent the person or persons repudiating
the inheritance. (923)

This article talks about what happens when there is


repudiation
The person who repudiates the inheritance CANNOT
be represented
SUBSECTION 2
Right of Representation

ARTICLE 970.
Representation is a right created by fiction
of law, by virtue of which the representative is raised to the
place and the degree of the person represented, and acquires
the rights which the latter would have if he were living or if he
could have inherited. (924a)

stirpes, in such manner that the representative or


representatives shall not inherit more than what the person
they represent would inherit, if he were living or could
inherit. (926a)

ARTICLE 975.
When children of one or more brothers or
sisters of the deceased survive, they shall inherit from the
latter by representation, if they survive with their uncles or
aunts. But if they alone survive, they shall inherit in equal
portions. (927)
ARTICLE 976.
A person may represent
inheritance he has renounced. (928a)

The right of representation takes place in both testate


and intestate succession
Disinheritance is only in testate succession because
you have to have a will
In testate succession, representation covers only the
legitime
In legal or intestate succession, the right of
representation, when proper, covers ALL that the person
being represented would have inherited
The right of representation covers not only the
properties but also the transmissible rights and
obligations
In adoption, the relationship that is created is only
between the adopter and the adoptee
If the adopter dies ahead of his parents, the adoptee
cannot represent the adopter
The adoptee can inherit from the adopter
An adopted child cannot represent
Neither may an adopted child be represented

ARTICLE 971.
The representative is called to the
succession by the law and not by the person represented. The
representative does not succeed the person represented but
the one whom the person represented would have succeeded.
(n)

Representative inherits not from the person


represented but from the person to whom the person
represented would have inherited

ARTICLE 972.
The right of representation takes place in the
direct descending line, but never in the ascending.
In the collateral line, it takes place only in favor of the
children of brothers or sisters, whether they be of the full or
half blood. (925)

In the collateral line, the right of representation takes


place only in favor of the children of brothers or sisters
(nephews or nieces)
Right of representation never takes place in the
ascending line

ARTICLE 973.
In order that representation may take place,
it is necessary that the representative himself be capable of
succeeding the decedent. (n)

The representative must be capacitated to inherit

ARTICLE 974.
Whenever
there
is
succession
by
representation, the division of the estate shall be made per

him

whose

ARTICLE 977.
Heirs who repudiate their share may not
be represented. (929a)

Instances where there is right of representation:


1)
Predecease
2)
Incapacity
3)
Disinheritance

Remember that PER STIRPES means inheritance


by all those within the group inheriting in equal shares

A renouncer may represent but he may not be


represented
A renouncer, for motives of his own, does so
voluntarily. His act of repudiation takes away his right
to dispose of the property
In cases of incapacity or disinheritance, however,
the loss is involuntary. The children of the incapacitated
or disinherited person should not be deprived of the
right of representation. They should not suffer for
having an unworthy parent
SECTION 2
Order of Intestate Succession
SUBSECTION 1
Descending Direct Line

ARTICLE 978.
Succession pertains, in the first place, to
the descending direct line. (930)

Descendants are preferred


The nearer excludes the farther
Compulsory heirs, with the legitimate descendant,
are concurrent intestate heirs

ARTICLE 979.
Legitimate children and their descendants
succeed the parents and other ascendants, without
distinction as to sex or age, and even if they should come
from different marriages.
An adopted child succeeds to the property of the
adopting parents in the same manner as a legitimate child.
(931a)
ARTICLE 980.
The children of the deceased shall always
inherit from him in their own right, dividing the inheritance
in equal shares. (932)

This is true even if the children come from different


marriages, for after all, the dead parent is the common
parent

ARTICLE 981.
Should children of the deceased and
descendants of other children who are dead, survive, the
former shall inherit in their own right, and the latter by right
of representation. (934a)
ARTICLE 982.
The grandchildren and other descendants
shall inherit by right of representation, and if any one of
them should have died, leaving several heirs, the portion
pertaining to him shall be divided among the latter in equal
portions. (933)

When the children are ALL dead, the grandchildren


inherit by right of representation, provided that
representation is proper
When ALL the children repudiate, there is no right
of representation and therefore the grandchildren
inherit in heir own right, per capita and in equal
portions

ARTICLE 983.
If illegitimate children survive with
legitimate children, the shares of the former shall be in the
proportions prescribed by article 895. (n)

40

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

The shares of the illegitimate children are to be taken


only from the half, which is the free portion

ARTICLE 984.
In case of the death of an adopted child,
leaving no children or descendants, his parents and relatives
by consanguinity and not by adoption, shall be his legal heirs.
(n)

The adopted child shall become the legal heir of his


adoptive parents and shall also remain the legal heir of his
natural parents
In case of the death of the adopted child, his parents
and relatives by nature, and not by adoption, shall be his
legal heirs
SUBSECTION 2
Ascending Direct Line

ARTICLE 985.
In default of legitimate children and
descendants of the deceased, his parents and ascendants
shall inherit from him, to the exclusion of collateral relatives.
(935a)

Parents and ascendants referred to in this article


should be legitimate

ARTICLE 986.
The father and mother, if living, shall inherit
in equal shares.
Should one only of them survive, he or she shall succeed
to the entire estate of the child. (936)
ARTICLE 987.
In default of the father and mother, the
ascendants nearest in degree shall inherit.
Should there be more than one of equal degree belonging
to the same line they shall divide the inheritance per capita;
should they be of different lines but of equal degree, one-half
shall go to the paternal and the other half to the maternal
ascendants. In each line the division shall be made per capita.
(937)
SUBSECTION 3
Illegitimate Children
ARTICLE 988.
In the absence of legitimate descendants or
ascendants, the illegitimate children shall succeed to the
entire estate of the deceased. (939a)
ARTICLE 989.
If, together with illegitimate children, there
should survive descendants of another illegitimate child who is
dead, the former shall succeed in their own right and the latter
by right of representation. (940a)

Descendants in this article refers to legitimate and


illegitimate descendants, since the law does not
distinguish
The grandchildren inherit by right of representation in
order not to prejudice the children left

ARTICLE 990.
The hereditary rights granted by the two
preceding articles to illegitimate children shall be transmitted
upon their death to their descendants, who shall inherit by
right of representation from their deceased grandparent.
(941a)

According to Paras, it is believed that Articles 989 and


990 apply not only to predecease but also to incapacity
and disinheritance
In repudiation, there is no right of representation

ARTICLE 991.
If legitimate ascendants are left, the
illegitimate children shall divide the inheritance with them,
taking one-half of the estate, whatever be the number of the
ascendants or of the illegitimate children. (942, 841a)

If illegitimate children survive with legitimate


ascendants, the sharing would be one-half
When there are illegitimate children and no legitimate
children, the legitimate ascendants inherit half in intestate
succession
When there are legitimate children, legitimate
ascendants are excluded

Although illegitimate children are placed 3 rd in the


order of intestate succession, the presence of the
legitimate descendants and ascendants does not
exclude them. They are concurring intestate heirs.

GENERAL RULE for all cases of PARTIAL INTESTACY:


Charge the legacies to the intestate shares of those
given by law on intestate succession more than their
respective legitimes, without impairing said legitimes.
Moreover, the charging must be proportionate to the
amount in the intestate share over and above that given by
law as legitime.
ARTICLE 992.
An illegitimate child has no right to inherit
ab intestato from the legitimate children and relatives of his
father or mother; nor shall such children or relatives inherit
in the same manner from the illegitimate child. (943a)

Article 992 is the Principle of Absolute


Separation with the legitimate family and the
illegitimate family. There is Reciprocal prohibition. This
is prohibition is also called the IRON-CLAD BARRIER.
If the person to be represented is an ILLEGITIMATE,
he can be represented by his legitimate and illegitimate
children
If the person to represented is a LEGITIMATE child,
he can only be represented by his own legitimate
children

Articles 902, 989 & 992


General Rule: These speak
of the successional right of
illegitimate children which
rights are transmitted to
their descendant upon their
death whether legitimate or
illegitimate.

Article 992
Exception:
Even
if
illegitimate children have
the right to succeed from
their parents they cannot
inherit from the RELATIVE of
their parents.

Table of Intestate Shares:


Illegitimate Children
Surviving Spouse
Illegitimate Children
Surviving spouse
Legitimate Parents
Illegitimate Children -
Legitimate Parents
Legitimate Parents
Surviving Spouse
Illegitimate Parents
Surviving Spouse
Surviving spouse
Brothers & nieces, nephews
& nieces

Illegitimate Child alone ALL


Legitimate Parents Alone
All
Illegitimate Parents Alone
All
Surviving Spouse Alone - All
Legitimate Child Alone All
1 Legitimate Child
Surviving spouse
2 or more legitimate child )
Surviving spouse )
Consi
der spouse as 1 legitimate
child and divide estate by
total number

ARTICLE 993.
If an illegitimate child should die without
issue, either legitimate or illegitimate, his father or mother
shall succeed to his entire estate; and if the child's filiation
is duly proved as to both parents, who are both living, they
shall inherit from him share and share alike. (944a)
ARTICLE 994.
In default of the father or mother, an
illegitimate child shall be succeeded by his or her surviving
spouse, who shall be entitled to the entire estate.
If the widow or widower should survive with brothers
and sisters, nephews and nieces, she or he shall inherit onehalf of the estate, and the latter the other half. (945a)
Heirs of the ILLEGITIMATE CHILD:
1. Legitimate
children
and
other
legitimate
descendants
2. Illegitimate children and other descendants
3. Illegitimate parents; ( NB: An illegitimate child has
no legitimate ascendants)
4. Surviving spouse
5. Illegitimate brothers and sisters subject to article
992;

41

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

6.
7.
8.

Nephews & nieces subject to rule in article 992


(because nephews & nieces who are legitimate
cannot inherit from the illegitimate child.)
Other collateral relatives up to the 5th civil degree of
consanguinity
The State

Heirs of the LEGITIMATE CHILD:


1. Legitimate children and heir legitimate descendants
2. Legitimate parents and other legitimate ascendants
3. Illegitimate children and their descendants
4. Surviving spouse, without prejudice to the rights of
brothers & sisters, nephews & nieces should there be
any
5. Brothers & sisters subject to Article 992. (Illegitimate
brothers & sisters cannot inherit from him)
6. Nephews & nieces subject to Article 992;
7. Collateral relatives up to the 5th degree subject to
Article 992
8. The State.

Legitimate children excludes the parents, brothers &


sisters, nephews & nieces and other collateral relatives
Legitimate children concur with the spouse
Illegitimate children concur with the spouse
Illegitimate excludes brothers & sisters, nephews &
nieces of the deceased
Parents also excludes the brothers & sisters, nephews
& nieces and other collateral relatives
Parents concur with the surviving spouse
Surviving spouse concur with the brothers & sisters or
nephews & nieces of the deceased
SUBSECTION 4
Surviving Spouse

ARTICLE 995.
In the absence of legitimate descendants
and ascendants, and illegitimate children and their
descendants, whether legitimate or illegitimate, the surviving
spouse shall inherit the entire estate, without prejudice to the
rights of brothers and sisters, nephews and nieces, should
there be any, under Article 1001. (946a)
ARTICLE 996.
If a widow or widower and legitimate
children or descendants are left, the surviving spouse has in
the succession the same share as that of each of the children.
(834a)

Article 996 speaks of children, and does not


expressly provide for a case when there is only one
legitimate child, unlike in the case of the legitime
If there is only one legitimate child concurring with
the surviving spouse and there are no other relatives,
both will get equal intestate shares, in accordance with
the clear intent of the law to consider the spouse as a
child

ARTICLE 997.
When the widow or widower survives with
legitimate parents or ascendants, the surviving spouse shall
be entitled to one-half of the estate, and the legitimate
parents or ascendants to the other half. (836a)
ARTICLE 998.
If a widow or widower survives with
illegitimate children, such widow or widower shall be entitled
to one-half of the inheritance, and the illegitimate children or
their descendants, whether legitimate or illegitimate, to the
other half. (n)
ARTICLE 999.
When the widow or widower survives with
legitimate children or their descendants and illegitimate
children or their descendants, whether legitimate or
illegitimate, such widow or widower shall be entitled to the
same share as that of a legitimate child. (n)
ARTICLE 1000. If legitimate ascendants, the surviving
spouse, and illegitimate children are left, the ascendants shall
be entitled to one-half of the inheritance, and the other half
shall be divided between the surviving spouse and the
illegitimate children so that such widow or widower shall have
one-fourth of the estate, and the illegitimate children the other
fourth. (841a)

ARTICLE 1001. Should brothers and sisters or their


children survive with the widow or widower, the latter shall
be entitled to one-half of the inheritance and the brothers
and sisters or their children to the other half. (953, 837a)

Brothers and sisters do not concur with recognized


illegitimate children of the deceased.
In fact, the
former are excluded by the latter.

ARTICLE 1002. In case of a legal separation, if the


surviving spouse gave cause for the separation, he or she
shall not have any of the rights granted in the preceding
articles. (n)
Rules for SURVIVING SPOUSE:
The decedent and the surviving spouse must be
legally married.
The surviving spouse must not be the guilty party
when there is legal separation.
There must be a decree of legal separation. If
there is no decree, she is not disqualified but she
can be disinherited.
If there is a reconciliation between the surviving
spouse and the decedent prior to the death of the
decedent, even if there is a decree of legal
separation, the surviving spouse is now qualified.
In intestate succession there is no similar rule on
death in articulo mortis.
If there is a surviving spouse with 1 legitimate child
and 1 illegitimate child, there is no such provision
in intestate succession applicable in this case. The
rule is, give to the legitimate child then the
illegitimate child gets of the share of the
legitimate child (same as testate succession). The
spouse gets the remainder (which is ) because in
testate succession the spouse gets .
If there is partial intestacy, you charge the
legacy/devise to the share of one gets more by
intestacy than by testacy. In testate, the share of
the spouse concurring with the parent is , while in
intestacy .
As long as the legitime of the
surviving spouse is not impaired.
SUBSECTION 5
Collateral Relatives
ARTICLE 1003. If there are no descendants, ascendants,
illegitimate children, or a surviving spouse, the collateral
relatives shall succeed to the entire estate of the deceased
in accordance with the following articles. (946a)

The collaterals referred to in this article are


intestate, but not compulsory heirs
Among said collaterals, the nearer excludes the
farther
Collaterals cannot inherit in the presence of
descendants

ARTICLE 1004. Should the only survivors be brothers and


sisters of the full blood, they shall inherit in equal shares.
(947)
ARTICLE 1005. Should brothers and sisters survive
together with nephews and nieces, who are the children of
the descendant's brothers and sisters of the full blood, the
former shall inherit per capita, and the latter per stirpes.
(948)

Although it is a fact that brothers and sisters of a


decedent, and their children, are collateral heirs, they
are not given any share in the inheritance if there is a
will instituting the widow as the sole heir of the estate

ARTICLE 1006. Should brothers and sisters of the full


blood survive together with brothers and sisters of the half
blood, the former shall be entitled to a share double that of
the latter. (949)

The relative of the full blood does not exclude the


relatives of the half-blood

ARTICLE 1007. In case brothers and sisters of the half


blood, some on the father's and some on the mother's side,

42

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

are the only survivors, all shall inherit in equal shares without
distinction as to the origin of the property. (950)
ARTICLE 1008. Children of brothers and sisters of the half
blood shall succeed per capita or per stirpes, in accordance
with the rules laid down for brothers and sisters of the full
blood. (915)
ARTICLE 1009. Should there be neither brothers nor sisters,
nor children of brothers or sisters, the other collateral relatives
shall succeed to the estate.
The latter shall succeed without distinction of lines or
preference among them by reason of relationship by the whole
blood. (954a)

If the deceased is survived by children of a


predeceased full blood sister, and by children of a
predeceased half blood brother, each of the first group
gets twice the share of each of the second group
The absence of brothers, sisters, nephews, and nieces
of the decedent is a precondition of the other collaterals

municipalities or cities. The court shall distribute the estate


as the respective needs of each beneficiary may warrant.
The court, at the instance of an interested party, or on
its own motion, may order the establishment of a permanent
trust, so that only the income from the property shall be
used. (956a)

ARTICLE 1014. If a person legally entitled to the estate of


the deceased appears and files a claim thereto with the
court within five years from the date the property was
delivered to the State, such person shall be entitled to the
possession of the same, or if sold, the municipality or city
shall be accountable to him for such part of the proceeds as
may not have been lawfully spent. (n)

ARTICLE 1010. The right to inherit ab intestato shall not


extend beyond the fifth degree of relationship in the collateral
line. (955a)

The collateral relatives are the brothers, sisters,


nephews and nieces, and the uncles and aunts and
cousins.

Rules for COLLATERAL RELATIVES:

The nearer relative excludes the farther


subject to the right of representation when proper.

If they are all in the same degree, those who


are in direct line are preferred over those who are in the
collateral line

If both are in the direct line, those who are in


the descending line are favored over those who are in
the ascending line.
That is why the descendants
excludes the parents or ascendants.

If both are in the collateral and the same


degree, those who are in the descending are favored
over those in the ascending. That is why the nephews
& nieces are favored over the uncles & aunts.

All of the brothers & sisters on the full blood


will inherit in equal shares.

Those who are in the half blood, as long as


married, not illegitimate, entitled to of the share of
the full blood.

With respect to the heirs in the collateral


line, the right of representation extends only to the
nephews & nieces (children of brothers & sisters).

Grandnephews & nieces and the great


grandnephews & nieces can no longer represent.

Between uncles & aunts vis--vis the


nephews & nieces, the nephews & nieces are preferred

SUBSECTION 6
The State
ARTICLE 1011. In default of persons entitled to succeed in
accordance with the provisions of the preceding Sections, the
State shall inherit the whole estate. (956a)
ARTICLE 1012. In order that the State may take possession
of the property mentioned in the preceding article, the
pertinent provisions of the Rules of Court must be observed.
(958a)

In the absence of ALL those in the direct line and


ALL those within the 5th degree in the collateral line, the
State succeeds
CADUCIARY RIGHT is the right of the state to
succeed
A claim must be filed within 5 years from the date
the property was delivered to the State
CHAPTER 4
Provisions Common to Testate and Intestate
Successions
SECTION 1
Right of Accretion

ARTICLE 1015. Accretion is a right by virtue of which,


when two or more persons are called to the same
inheritance, devise or legacy, the part assigned to the one
who renounces or cannot receive his share, or who died
before the testator, is added or incorporated to that of his
co-heirs, co-devisees, or co-legatees. (n)

Accretion is based on the presumed will of the


testator that he prefers to give certain properties to
certain individuals rather than that the property shall go
by way of intestacy
Accretion is proper in both testate and intestate
succession
In testate succession, it is proper only with respect
to the free portion
In intestate succession, it is proper with the entire
portion

Requisites of Accretion:
1. There is only one inheritance, devise or legacy
(unity of object);
2. Plurality of subjects there must be at least 2 or
more heirs, devisees of legatees instituted.
3. There is a vacant portion meaning, one of the
heirs, devises, legatees instituted cannot succeed.
4. Acceptance of the portion accruing by the person
entitled. (If there is no acceptance the share will go
by way of intestacy.)

Rule 91 (Escheats) of the Rules of Court shall be


observed

ARTICLE 1013. After the payment of debts and charges, the


personal property shall be assigned to the municipality or city
where the deceased last resided in the Philippines, and the
real estate to the municipalities or cities, respectively, in which
the same is situated.
If the deceased never resided in the Philippines, the whole
estate shall be assigned to the respective municipalities or
cities where the same is located.
Such estate shall be for the benefit of public schools, and
public charitable institutions
and centers, in
such

While the State actually inherits, still assignment of


the properties to the proper municipalities must be
made
The law makes a distinction as to whether or not
the deceased resided in the Philippines

There is unity of object when two or more


persons are called to the same inheritance.
The
property is not divided and the heirs, devisees or
legatees are called to the entire estate pro indiviso
If there is already a specification ( north portion,
south portion), accretion is not proper
With respect to money or fungible goods, as long
as the share of devisee, legatee or heir is not
earmarked, there is still unity of object

ARTICLE 1016. In order that the right of accretion may


take place in a testamentary succession, it shall be
necessary:

43

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

(1) That two or more persons be called to the same


inheritance, or to the same portion thereof, pro indiviso; and
(2) That one of the persons thus called die before the
testator, or
renounce
the
inheritance,
or
be
incapacitated to receive it. (982a)
ARTICLE 1017. The words "one-half for each" or "in equal
shares" or any others which, though designating an aliquot
part, do not identify it by such description as shall make each
heir the exclusive owner of determinate property, shall not
exclude the right of accretion.
In case of money or fungible goods, if the share of each
heir is not earmarked, there shall be a right of accretion.
(983a)
In testamentary succession, accretion is proper if the
vacancy is caused if one of the heirs:
1. Predeceased
2. Incapacitated;
3. Repudiates the inheritance
4. If the suspensive condition is not fulfilled
5. Failure to identify one particular heir
ARTICLE 1018. In legal succession the share of the person
who repudiates the inheritance shall always accrue to his coheirs. (981)

In intestate succession, accretion is proper if the


vacancy is caused by repudiation or incapacity (subject to
the right of representation)
There is no accretion in intestate succession if the
vacancy is caused by disinheritance

ARTICLE 1020. The heirs to whom the inheritance accrues


shall succeed to all the rights and obligations which the heir
who renounced or could not receive it would have had. (984)

This is the same in substation.


The rights and
obligations shall pass to the others to whom the shares
will accrue
EXCEPTIONS:
1. If the testator expressly provide that the other heirs
will not be subject to the same rights and obligations
2. If the rights and obligations are personal to the heir
whose portion becomes vacant
ARTICLE 1021. Among the compulsory heirs the right of
accretion shall take place only when the free portion is left to
two or more of them, or to any one of them and to a stranger.
Should the part repudiated be the legitime, the other coheirs shall succeed to it in their own right, and not by the right
of accretion. (985)

There can be no accretion insofar as the legitime is


concerned
Accretion, if it takes place, concerns only the free
portion

ARTICLE 1022. In testamentary succession, when the right


of accretion does not take place, the vacant portion of the
instituted heirs, if no substitute has been designated, shall
pass to the legal heirs of the testator, who shall receive it with
the same charges and obligations. (986)

This illustrates the order of preference (ISRAI)

ARTICLE 1023. Accretion shall also take place among


devisees, legatees and usufructuaries under the same
conditions established for heirs. (987a)
SECTION 2
Capacity to Succeed by Will or by Intestacy
ARTICLE 1024. Persons not
succeed by will or ab intestato.

incapacitated

by

law

may

CAPACITY TO SUCCEED is the ability to inherit


and retain property obtained mortis causa
Capacity to succeed is governed by the law of the
nation of the decedent

Bar Question: What matters are governed by the


national law of the decedent?
Under Article 15:
1. The order of succession
2. The amount of successional right
3. The intrinsic validity of the testamentary provision
4. The capacity to succeed.
ARTICLE 1025. In order to be capacitated to inherit, the
heir, devisee or legatee must be living at the moment the
succession opens, except in case of representation, when it
is proper.
A child already conceived at the time of the death of
the decedent is capable of succeeding provided it be born
later under the conditions prescribed in article 41. (n)

This treats of accretion in intestacy


One who renounces cannot represented

ARTICLE 1019. The heirs to whom the portion goes by the


right of accretion take it in the same proportion that they
inherit. (n)

The provisions relating to incapacity by will are equally


applicable to intestate succession. (744, 914)

Natural persons must be living AT THE TIME that


the succession opens or AT THE TIME OF THE DEATH
But the word living includes those at least
conceived (Article 41). A conceived child is deemed to
have live from the moment of the complete separation
from mothers womb.
But if the child has an intra-uterine life LESS THAN
7 MONTHS, he should be considered alive if the child
does not die WITHIN 24 HOURS.
In representation, the representative must also be
living or at least conceived at the moment the
succession opens

ARTICLE 1026. A testamentary disposition may be made


to the State, provinces, municipal corporations, private
corporations, organizations, or associations for religious,
scientific, cultural, educational, or charitable purposes.
All other corporations or entities may succeed under a
will, unless there is a provision to the contrary in their
charter or the laws of their creation, and always subject to
the same. (746a)

Juridical persons inherit only by WILL


Under article 1026, some of these entities are not
juridical persons. Juridical personality is acquired when
it is registered.
Article 1026 grants capacity to succeed even to
non-juridical persons
The STATE inherits by will or by intestacy by virtue
of its caduciary right

ARTICLE 1027. The


following
are
incapable
of
succeeding:
(1) The priest who heard the confession of the testator
during his last
illness, or the minister of the gospel who
extended spiritual aid to him during the same period;
(2) The relatives of such priest or minister of the gospel
within the
fourth degree, the church, order, chapter,
community,
organization, or institution to which such
priest or minister may
belong;
(3) A guardian with respect to testamentary dispositions
given by a
ward in his favor before the final accounts
of the guardianship
have been approved, even if the
testator should die after the
approval
thereof;
nevertheless, any provision made by the ward in
favor
of the guardian when the latter is his ascendant,
descendant, brother, sister, or spouse, shall be valid;
(4) Any attesting witness to the execution of a will, the
spouse, parents, or children, or any one claiming under
such witness,
spouse, parents, or children;
(5) Any physician, surgeon, nurse, health officer or druggist
who took
care of the testator during his last illness;
a
(6) Individuals, associations and corporations not permitted
by law to
inherit. (745, 752, 753, 754a)
1. Priest or Minister
to safeguard the right of the heirs who may be
defrauded by the sinister and undue influence

44

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

2.
3.

4.

5.

6.

which may be exercised by some priest and minister


over a dying man
The will must be made DURING THE LAST ILLNESS of
the testator
LAST ILLNESS means the illness of which the testator
dies or the illness which immediately preceded the
death of the testator
The will must be made AFTER the confession
The priest must hear the confession. If he merely
extends spiritual aid, that is not considered as
confession. BUT with respect to the minister, the
giving of spiritual aid disqualifies the minister.
It does not matter whether the illness is long,
lingering or short as long as there is great possibility
of death
The disqualification under this paragraph does not
extend to the legitime, intestacy and dispositions
which do not extend to a testamentary benefit
Relatives of such pries or minister within the 4 th
degree, the church, organization, etc.
Guardians
This refers to both to guardians over the property and
guardians of the person
As long as the final account has not been approved,
the guardian is prohibited from being an heir,
legatee/devisee of the testator
What is important is that at the time of the making of
the will, the final accounts have not been approved.
It does not matter that he is no longer the guardian at
the time of death.
The prohibition only applies when the institution is
during the subsistence of the guardianship prior to
the approval of the final account
Unlike the priest, the relatives (spouse, ascendant,
descendant, brother or sister) are not disqualified, For
the priest up to the 4th degree they are disqualified.
Attesting witnesses
If you give a legacy or devise only, the legacy or
devise is void but the witness is still qualified
But applying Article 823, if there are 3 other
witnesses who are competent, then the witness to
whom the legacy or devise is given is capacitated to
inherit
Physicians, surgeons, etc
The will must be made DURING the LAST ILLNESS and
AFTER THE CARE had commenced
The disqualification does not apply if the physician or
nurse is a compulsory heir
Individuals, associations and corporations not
permitted by law to inherit
Article 1027 still applies even if it is proved that there
was no undue influence on the part of the priest,
guardian, or physician
Article 1027 provides for a conclusive presumption.
Being conclusive, you cannot present controverting
evidence

ARTICLE 1028. The prohibitions mentioned in article 739,


concerning donations inter vivos shall apply to testamentary
provisions. (n)

This is incapacity by reason of public morality

Applying the law on succession, the following


donations shall be void:
1.
When the testator and the recipient are
guilty of adultery or concubinage
2.
When the testator and the recipient are
guilty of the same criminal offense in consideration
thereof
3.
Those made by the testator to a public
officer, or his wife, descendant and ascendant by reason
of his office
ARTICLE 1029. Should the testator dispose of the whole or
part of his property for prayers and pious works for the benefit
of his soul, in general terms and without specifying its
application, the executor, with the court's approval shall
deliver one-half thereof or its proceeds to the church or
denomination to which the testator may belong, to be used for
such prayers and pious works, and the other half to the State,
for the purposes mentioned in article 1013. (747a)

Article 1029 is commonly called the Institution of


the Soul. The soul is considered as an entity which
does not have a juridical personality but may otherwise
inherit

Requisites for the institution of the soul:


1. The disposition must be for prayers and pious
works
2. The prayers and pious works must for the benefit of
the testators soul
3. The disposition must be in general term
4. It does not specify the application
5. No particular person is charged with the duty of
giving the money or property
6. No place is specified or date is fixed for the prayers
ARTICLE 1030. Testamentary provisions in favor of the
poor in general, without designation of particular persons or
of any community, shall be deemed limited to the poor
living in the domicile of the testator at the time of his death,
unless it should clearly appear that his intention was
otherwise.
The designation of the persons who are to be
considered as poor and the distribution of the property shall
be made by the person appointed by the testator for the
purpose; in default of such person, by the executor, and
should there be no executor, by the justice of the peace, the
mayor, and the municipal treasurer, who shall decide by a
majority of votes all questions that may arise. In all these
cases, the approval of the Court of First Instance shall be
necessary.
The preceding paragraph shall apply when the testator
has disposed of his property in favor of the poor of a definite
locality. (749a)

This is disposition in favor of the poor


This refers only to the poor living in the domicile of
the testator at the time of his death, unless the testator
has provided otherwise
The institution is for the poor in general.
When the testator says a poor of a definite locality,
then the poor in that place.
Insane persons have no testamentary capacity
But with respect to being heirs, insane persons are
capacitated
Incapacity should be construed strictly

Who will designate the persons who are considered


poor?
1. The person designated by the testator;
2. The executor;
3. Three people by majority vote
Kinds of Incapacity
1. ABSOLUTE INCAPACITY You cannot inherit from
anybody under any circumstance.
2. RELATIVE INCAPACITY You can inherit only from certain
persons or can only inherit certain properties under
certain circumstances.
Classes under Absolute Incapacity
1. Article 1026 last paragraph : All other corporations or
entities may succeed under a will, unless there is a
provision to the contrary in their charter or the laws of
their creation, and always subject to the same.
2. Article 1027 paragraph 6 : Individuals, associations
and corporations not permitted by law to inherit.
3. Those who lacks juridical personality
Classes under Relative Incapacity
1.
Article 1027: Incapacity by reason of possible
undue influence
2.
Article 1027 paragraphs 1-5: Incapacity by reason
of public policy
3.
Article 1028 Incapacity by reason of public policy
and morality
4.
Article 1032: Incapacity by reason of unworthiness.
ARTICLE 1031. A testamentary provision in favor of a
disqualified person, even though made under the guise of
an onerous contract, or made through an intermediary, shall
be void. (755)

45

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

This article applies only to incapacity by reason of


possible influence and Incapacity by reason of public
morality.
With respect to incapacity by reason of
unworthiness, Article 1031 will not apply

ARTICLE 1032. The following are incapable of succeeding by


reason of unworthiness:
(1) Parents who have abandoned their children or induced
their
daughters to lead a corrupt or immoral life, or
attempted against
their virtue;
(2) Any person who has been convicted of an attempt against
the life of the testator, his or her spouse, descendants, or
ascendants;
(3) Any person who has accused the testator of a crime for
which the
law prescribes imprisonment for six years or
more, if the
accusation has been found groundless;
(4) Any heir of full age who, having knowledge of the violent
death of the testator, should fail to report it to an officer of the
law within a
month, unless the authorities have already
taken action; this prohibition shall not apply to cases wherein,
according to law, there is no
obligation
to
make
an
accusation;
(5) Any person convicted of adultery or concubinage with the
spouse of the testator;
(6) Any person who by fraud, violence, intimidation, or undue
influence should cause the testator to make a will or to
change one already made;
(7) Any person who by the same means prevents another
from
making a will, or from revoking one already made, or
who
supplants, conceals, or alters the latter's will;
(8) Any person who falsifies or forges a supposed will of the
decedent. (756, 673, 674a)
2nd paragraph: Any person who has been convicted of an
attempt against the life of the testator, his or her spouse,
descendants, or ascendants
The incapacity must be measured AT THE TIME of
death of the testator
Such person is not incapacitated if the attempt
against the wife of the testator was made after the
death of the testator
th
4 paragraph: Any heir of full age who, having knowledge of
the violent death of the testator, should fail to report it to an
officer of the law within a month, unless the authorities have
already taken action; this prohibition shall not apply to cases
wherein, according to law, there is no obligation to make an
accusation
18 years old is the legal age but 21 is the full age
Death must be violent. It must be caused by a crime
Under the last sentence, paragraph 4 applies only
when there is an obligation to make an accusation
but there is no law in the Philippines which obliges
anyone to make an accusation because in criminal
cases, it is People of the Philippines versus the
criminal. It is the State which prosecutes. As of the
present, paragraph 4 has no application.
5th paragraph: Any persons convicted or adultery or
concubinage with the spouse of the testator
The person convicted is the one incapacitated, he is
the unworthy. The spouse of the testator is not
incapacitated or unworthy. But the infidelity of the
spouse constitutes a ground for disinheritance. If
there is a decree of legal separation, by law, the
spouse who is guilty is disqualified from inheriting.
If there is now reconciliation between the guilty
spouse and the innocent spouse after the decree of
legal separation has been granted, the decree shall
be set aside so the spouse will now be reinstated to
succeed to capacity.
8th Paragraph: Any person who falsifies or forges a supposed
will of the decedent.
Article 1032 applies to both testate or intestate
succession
When it is the compulsory heir who becomes
unworthy, the compulsory heir loses the legitime and
all other rights pertaining to the legitime and as well
to the free portion. But the incapacitated heir can be
represented.
ARTICLE 1033. The causes of unworthiness shall be without
effect if the testator had knowledge thereof at the time he
made the will, or if, having known of them subsequently, he
should condone them in writing. (757a)

This article talks about PARDON OR CONDONATION

Condonation / Pardon
It is the unilateral of the
testator.

Reconciliation
It is a bilateral act. There
must be forgiveness and the
heir must accept.

Rules for Condonation:

If the testator already knew the cause of the


unworthiness at the time of making the will but still
he provides something for that unworthy heir in the
will, there is now an IMPLIED CONDONATION.

The will in which the implied condonation is made


must be valid and it must not be revoked in order
that there is implied condonation because implied
condonation is dependent on the will.

If knowledge comes only AFTER the execution of


the will, condonation must be in writing. This is
EXPRESS CONDONATION

If the cause for unworthiness is also a ground for


disinheritance, the rule on disinheritance applies.
Thus, reconciliation is enough. There is no
requirement that the testator should condone it in
writing. But if there is no disinheritance and there
is only act of unworthiness, if the testator knew of
the act only after the execution of the will, there
has to be condonation in writing.

The only instance wherein an incapacitated heir is


restored to capacity by the mere act of
reconciliation is when there is a decree of legal
separation
the
guilty
spouse
becomes
incapacitated. But when there is subsequent
reconciliation the decree shall be set aside and the
spouse will now be restored to capacity.
ARTICLE 1034. In order to judge the capacity of the heir,
devisee or legatee, his qualification at the time of the death
of the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of article 1032, it
shall be necessary to wait until final judgment is rendered,
and in the case falling under No. 4, the expiration of the
month allowed for the report.
If the institution, devise or legacy should be conditional,
the time of the compliance with the condition shall also be
considered. (758a)

In case of a suspensive conditional institution, the


heir must be capacitated BOTH:
1. At the time of the testators death
2. At the time the condition is fulfilled

ARTICLE 1035. If the person excluded


from the
inheritance by reason of incapacity should be a child or
descendant of the decedent and should have children or
descendants, the latter shall acquire his right to the
legitime.
The person so excluded shall not enjoy the usufruct and
administration of the property thus inherited by his children.
(761a)

In disinheritance, if a person is disinherited he can


still be represented.
But the disinherited parent shall have no usufruct
and administration of the property received by the
representative (Article 923).
This same rule applies to incapacity. The
incapacitated heir can still be represented but the
incapacitated heir has no right of usufruct or
administration over the property received by the
representative.

ARTICLE 1036. Alienations of hereditary property, and


acts of administration performed by the excluded heir,
before the judicial order of exclusion, are valid as to the
third persons who acted in good faith; but the co-heirs shall
have a right to recover damages from the disqualified heir.
(n)

The unworthiness must be declared by the court

ARTICLE 1037. The unworthy heir who is excluded from


the succession has a right to demand indemnity for any
expenses incurred in the preservation of the hereditary
property, and to enforce such credits as he may have
against the estate. (n)

46

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

ARTICLE 1038. Any person incapable of succession, who,


disregarding the prohibition stated in the preceding articles,
entered into the possession of the hereditary property, shall be
obliged to return it together with its accessions.
He shall be liable for all the fruits and rents he may have
received, or could have received through the exercise of due
diligence. (760a)

Requisites:
1.
The heir must be certain of the death
(actual or presumed) of the decedent
2.
The heir must be certain of his rights to
the inheritance
3.
The heir must have free disposal of his
property

Articles 1037 and 1038 speak of the rights and


obligations of the excluded unworthy heir

ARTICLE 1039. Capacity to succeed is governed by the law


of the nation of the decedent. (n)
ARTICLE 1040. The action for a declaration of incapacity
and for the recovery of the inheritance, devise or legacy shall
be brought within five years from the time the disqualified
person took possession thereof. It may be brought by any one
who may have an interest in the succession. (762a)

The action for declaration of incapacity and recovery


of the inheritance shall be brought WITHIN 5 YEARS from
the time the DISQUALIFIED heir took possession of the
property
Only those who have an interest who will either stand
to gain or lose by the exclusion of the incapacitated heir
can bring the action
SECTION 3
Acceptance and Repudiation of the Inheritance

Acceptance and Repudiation must be absolute,


thus, not subject to condition

ARTICLE 1043. No person may accept or repudiate an


inheritance unless he is certain of the death of the person
from whom he is to inherit, and of his right to the
inheritance. (991)

ARTICLE 1044. Any person having the free disposal of his


property may accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons
may be accepted by their parents or guardians. Parents or
guardians may repudiate the inheritance left to their wards
only by judicial authorization.
The right to accept an inheritance left to the poor shall
belong to the persons designated by the testator to
determine the beneficiaries and distribute the property, or in
their default, to those mentioned in article 1030. (992a)
HEIRS
MINORS

ARTICLE 1041. The acceptance or repudiation of the


inheritance is an act which is purely voluntary and free. (988)

Acceptance and repudiation must be a free and


voluntary act
The presence of vitiated consent gives rise to their
revocability
There can be partial acceptance and partial
repudiation
Even the legitime may be repudiated since no one
can be compelled to accept the generosity of another

ARTICLE 1042. The effects of the acceptance or repudiation


shall always retroact to the moment of the death of the
decedent. (989)

Acceptance is the act by which a person called to


succeed to the inheritance of a decedent either by will or
by law manifests his assent to the receipt of the property,
rights and obligations which are transmitted to him thru
the death of the decedent
Repudiation is the act by which the person called to
succeed to the inheritance manifest his unwillingness to
succeed to the same
Rights may be waived provided that the waiver is not
contrary to law, morals, public policy, good customs or
prejudicial to the right of the person recognized by law.
This is applicable in acceptance and repudiation.
No person can be forced to accept the generosity of
another
Repudiation and acceptance are subsequent to the
death of the decedent. But their effects retroact from the
moment of death.
If you accept or repudiate before the death of the
decedent, it is void because it involves future inheritance.
Moreover, a will is essentially revocable so, the
acceptance or repudiation is premature

GENERAL RULE: Acceptance and repudiation once made are


irrevocable
EXCEPTION: When it was made through any of the causes that
vitiate consent or when an unknown will appears.

Acceptance may be EXPRESS, TACIT or PRESUMED


Repudiation being an act of disposition, it requires
greater capacity and more formalities than acceptance
Repudiation of hereditary rights partakes the nature
of donations
Acceptance of inheritance does not make the heir
personally liable for the debts and obligations of the
decedent

POOR

CORPORATIONS/
ASSOCIATIONS/
ENTITIES
PUBLIC OFFICIAL/
ESTABLISHMENTS
MARRIED WOMAN

DEAF-MUTE
Who can read and
write
DEAF-MUTE
who cannot read or
write

WHO MAY
ACCEPT
Minors can be
represented by
their parents or
guardians (Minor
himself cannot
accept)
Acceptance
must be made
by the person
designated
by
the testator or in
his
default,
follow the order
made in Article
1030. (Justice of
the
Peace,
Mayor, Municipal
Treasurer)
May be made by
the
lawful
representative.
Must be with the
approval of the
government
May accept on
her own without
the consent of
her husband
May
accept
personally
or
thru an agent
Must be made
by the guardian
(because
deaf
mute
who
cannot read and
write has no
juridical
capacity)

WHO MAY
REPUDIATE
The repudiation by
the
parents/guardians
must
be
with
judicial
approval
for it to be valid.

The
lawful
representative
may
repudiate
with
court
approval.
With the approval
of the government
May repudiate on
her own without
the consent of her
husband.
May
repudiate
personally or thru
an agent.
Must be made by
the guardian with
court approval

ARTICLE 1045. The lawful representatives of corporations,


associations, institutions and entities qualified to acquire
property may accept any inheritance left to the latter, but in
order to repudiate it, the approval of the court shall be
necessary. (993a)
ARTICLE 1046. Public official establishments can neither
accept nor repudiate an inheritance without the approval of
the government. (994)
ARTICLE 1047. A married woman of age may repudiate an
inheritance without the consent of her husband. (995a)

47

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

ARTICLE 1048. Deaf-mutes who can read and write may


accept or repudiate the inheritance personally or through an
agent. Should they not be able to read and write, the
inheritance shall be accepted by their guardians. These
guardians may repudiate the same with judicial approval.
(996a)
ARTICLE 1049. Acceptance may be express or tacit.
An express acceptance must be made in a public or
private document.
A tacit acceptance is one resulting from acts by which
the intention to accept is necessarily implied, or which one
would have no right to do except in the capacity of an heir.
Acts of mere preservation or provisional administration do
not imply an acceptance of the inheritance if, through such
acts, the title or capacity of an heir has not been assumed.
(999a)

The acts of mere preservation or administration do


not constitute acceptance because these acts are not acts
of dominion

ARTICLE 1050. An inheritance is deemed accepted:


(1) If the heirs sells, donates, or assigns his right to a
stranger, or
to his co-heirs, or to any of them;
(2) If the heir renounces the same, even though gratuitously,
for the benefit of one or more of his co-heirs;
(3) If he renounces it for a price in favor of all his co-heirs
indiscriminately; but if this renunciation should be
gratuitous,
and the co-heirs in whose favor it is made
are those upon whom the portion renounced should devolve
by virtue of
accretion, the inheritance shall not be
deemed as accepted.
(1000)

Article 1050 enumerates the instances wherein


there is tacit acceptance
Under the 2nd paragraph, take note that the
renunciation must be in favor of one or some but not all.
When you renounce in favor of one or some, you are
actually choosing who will receive. You are exercising
dominion over your share and it is an act of ownership.
Thus, there is tacit acceptance
Under the 3rd paragraph, if you renounce in favor of
your co-heirs of ALL indiscriminately but you were paid,
then there is tacit acceptance because why would they
pay you if you do not own the share you are giving to
them. BUT the portion renounced should not devolve to
the other heirs who would succeed by virtue of accretion if
the renunciation is gratuitous.

ARTICLE 1051. The repudiation of an inheritance shall be


made in a public or authentic instrument, or by petition
presented to the court having jurisdiction over the
testamentary or intestate proceedings. (1008)
How do you repudiate?
1. Repudiation by public document
2. When repudiation is embodied in an authentic document
3. By petition presented in court having jurisdiction over
the testamentary or intestate proceeding
ARTICLE 1052. If the heir repudiates the inheritance to the
prejudice of his own creditors, the latter may petition the court
to authorize them to accept it in the name of the heir.
The acceptance shall benefit the creditors only to an
extent sufficient to cover the amount of their credits. The
excess, should there be any, shall in no case pertain to the
renouncer, but shall be adjudicated to the persons to whom, in
accordance with the rules established in this Code, it may
belong. (1001)

The creditors can accept in behalf of the heirs only if


the heir repudiates and the repudiation prejudices the
creditors
But in that case, creditors cannot accept the entire
inheritance, devise /legacy. Only the amount sufficient to
cover the credit.

ARTICLE 1053. If the heir should die without having


accepted or repudiated the inheritance his right shall be
transmitted to his heirs. (1006)

The death of the heir should be after that of the


decedent in order that Article 1053 may be applied

ARTICLE 1054. Should there be several heirs called to the


inheritance, some of them may accept and the others may
repudiate it. (1007a)

If all the heirs accept, there is co-ownership


If one of them repudiates, there is accretion or
substitution if there is a substitute

ARTICLE 1055. If a person, who is called to the same


inheritance as an heir by will and ab intestato, repudiates
the inheritance in his capacity as a testamentary heir, he is
understood to have repudiated it in both capacities.
Should he repudiate it as an intestate heir, without
knowledge of his being a testamentary heir, he may still
accept it in the latter capacity. (1009)

An heir is both a testamentary heir and an intestate


heir

If you renounced your share in testamentary


succession, it follows that you also renounced your
share in legal succession
If at the time of your being legal or intestate heir,
you already knew that you are instituted as
testamentary heir, you are deemed to have repudiated
both. But if at the time that you are renouncing your
being an intestate or legal heir, you do not know that
you are also instituted heir in a will, then you are not
deemed to have renounced your institution in the will
because the presumption is that the shares of the heir
in legal succession is just based on the presumed will of
the testator.

ARTICLE 1056. The acceptance or repudiation of


inheritance, once made, is irrevocable, and cannot
impugned, except when it was made through any of
causes that vitiate consent, or when an unknown
appears. (997)

an
be
the
will

ARTICLE 1057. Within thirty days after the court has


issued an order for the distribution of the estate in
accordance with the Rules of Court, the heirs, devisees and
legatees shall signify to the court having jurisdiction
whether they accept or repudiate the inheritance.
If they do not do so within that time, they are deemed
to have accepted the inheritance. (n)

Within 30 days, you must signify your acceptance


or repudiation. Otherwise, the presumption is you have
accepted the inheritance
Article 1057 refers to presumed acceptance
Article 1050 refers to tacit acceptance
SECTION 4
Executors and Administrators

ARTICLE 1058. All matters relating to the appointment,


powers and duties of executors and administrators and
concerning the administration of estates of deceased
persons shall be governed by the Rules of Court. (n)
ARTICLE 1059. If the assets of the estate of a decedent
which can be applied to the payment of debts are not
sufficient for that purpose, the provisions of articles 2239 to
2251 on Preference of Credits shall be observed, provided
that the expenses referred to in article 2244, No. 8, shall be
those involved in the administration of the decedent's
estate. (n)
ARTICLE 1060. A corporation or association authorized to
conduct the business of a trust company in the Philippines
may be appointed as an executor, administrator, guardian of
an estate, or trustee, in like manner as an individual; but it
shall not be appointed guardian of the person of a ward. (n)
SECTION 5
Collation
ARTICLE 1061. Every compulsory heir, who succeeds with
other compulsory heirs, must bring into the mass of the
estate any property or right which he may have received
from the decedent, during the lifetime of the latter, by way
of donation, or any other gratuitous title, in order that it may

48

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

be computed in the determination of the legitime of each heir,


and in the account of the partition. (1035a)

COLLATION means computing or adding certain


values to the estate, and charging the same to the
LEGITIME
COLLATION also means computing or adding certain
values to the estate, and charging the same to the FREE
PORTION

ARTICLE 1062. Collation shall not take place among


compulsory heirs if the donor should have so expressly
provided, or if the donee should repudiate the inheritance,
unless the donation should be reduced as inofficious. (1036)
ARTICLE 1063. Property left by will is not deemed subject to
collation, if the testator has not otherwise provided, but the
legitime shall in any case remain unimpaired. (1037)
ARTICLE 1064. When grandchildren, who survive with their
uncles, aunts, or cousins, inherit from their grandparents in
representation of their father or mother, they shall bring to
collation all that their parents, if alive, would have been
obliged to bring, even though such grandchildren have not
inherited the property.
They shall also bring to collation all that they may have
received from the decedent during his lifetime, unless the
testator has provided otherwise, in which case his wishes must
be respected, if the legitime of the co-heirs is not prejudiced.
(1038)

Items which are not subject to collation:


1. If the testator provides that the donation shall not be
collated, but subject to the rule that it should not
impair the legitime of the other compulsory heirs
2. If the compulsory heir repudiated his share in the
inheritance. The donation will not be revoked but if it
is inofficious, the heir who repudiated the inheritance
will pay or give back the value to the other
compulsory heirs whose legitimes are impaired.
3. Those given to voluntary heirs, legatees and
devisees.
The donations given to them will be
charged to the free portion. If it will impair the
legitime of the other compulsory heirs, it has to be
reduced. (Article 1063)
4. Expenses incurred by the parents in giving their
children the professional, vocational or other career
(Article 1068)
5. Wedding gifts (Article 1070)
GENERAL RULE: Expenses incurred by the parents in giving
their children the professional, vocational or other career is not
charged to the legitime of the compulsory heirs but only to the
free portion
EXCEPTION: If the parents expressly provide that it shall be
charged to the legitime
ARTICLE 1070. Wedding gifts by parents and ascendants
consisting of jewelry, clothing, and outfit, shall not be reduced
as inofficious except insofar as they may exceed one-tenth of
the sum which is disposable by will. (1044)

These items are charged to the free portion but


subject to the limitation that they should not exceed 1/10
of the free portion

ARTICLE 1065. Parents are not obliged to bring to collation


in the inheritance of their ascendants any property which may
have been donated by the latter to their children. (1039)
ARTICLE 1066. Neither shall donations to the spouse of the
child be brought to collation; but if they have been given by
the parent to the spouses jointly, the child shall be obliged to
bring to collation one-half of the thing donated. (1040)
ARTICLE 1067. Expenses for support, education, medical
attendance, even in extraordinary illness, apprenticeship,
ordinary equipment, or customary gifts are not subject to
collation. (1041)

SUPPORT includes education


separates support and education

but

Article

1067

Education under this article means only up to HIGH


SCHOOL education because there is separate provision
under Article 1068 as to professional, vocational and
other careers

Items which are not collated to the legitime and to


the free portion because they are not included in the
computation in the net hereditary estate:
1. Properties received from the testator by the
children of the heir (Article 1065)
2. Donations by the testator to the spouse of the
compulsory heir (Article 1066) If the donation was
made to the spouses jointly, is subject to
collation pertaining to the share of the heir
3. Expenses
for
support,
education,
medical
attendance

ARTICLE 1068. Expenses incurred by the parents in giving


their children a professional, vocational or other career shall
not be brought to collation unless the parents so provide, or
unless they impair the legitime; but when their collation is
required, the sum which the child would have spent if he
had lived in the house and company of his parents shall be
deducted therefrom. (1042a)

When you give your child elementary or high


school education , this is not generosity but a Moral
Obligation on you part

ARTICLE 1069. Any sums paid by a parent in satisfaction


of the debts of his children, election expenses, fines, and
similar expenses shall be brought to collation. (1043a)
ARTICLE 1071. The same things donated are not to be
brought to collation and partition, but only their value at the
time of the donation, even though their just value may not
then have been assessed.
Their subsequent increase or deterioration and even
their total loss or destruction, be it accidental or culpable,
shall be for the benefit or account and risk of the donee.
(1045a)

Only the value at the time of the perfection of the


donation should be collated

ARTICLE 1072. In the collation of a donation made by


both parents, one-half shall be brought to the inheritance of
the father, and the other half, to that of the mother. That
given by one alone shall be brought to collation in his or her
inheritance. (1046a)
ARTICLE 1073. The donee's share of the estate shall be
reduced by an amount equal to that already received by
him; and his co-heirs shall receive an equivalent, as much as
possible, in property of the same nature, class and quality.
(1047)
ARTICLE 1074. Should the provisions of the preceding
article be impracticable, if the property donated was
immovable, the co-heirs shall be entitled to receive its
equivalent in cash or securities, at the rate of quotation; and
should there be neither cash nor marketable securities in
the estate, so much of the other property as may be
necessary shall be sold at public auction.
If the property donated was movable, the co-heirs shall
only have a right to select an equivalent of other personal
property of the inheritance at its just price. (1048)

Article 1073 and article 1074 are the RULES OF


EQUALIZATION IN COLLATION

Rules for immovables:


1. Property of the same nature, class and quality
2. If no property of the same nature, cash or security
3. Other property as may be necessary shall be sold
at public auction
Rules for movables:

49

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

1.
2.

Property of the same nature, class or quality


If none, the equivalent value of the property

When the property donated is a MOVABLE property,


there is NO RIGHT to sell at a public auction

ARTICLE 1075. The fruits and interest of the property


subject to collation shall not pertain to the estate except from
the day on which the succession is opened.
For the purpose of ascertaining their amount, the fruits
and interest of the property of the estate of the same kind and
quality as that subject to collation shall be made the standard
of assessment. (1049)

In donation, there is immediate transfer of ownership.


Thus, the fruits and interest from the time of the donation
up to the death of the testator shall belong to the donee
The fruits from the time of the death of the testator
shall pertain to the estate

ARTICLE 1076. The co-heirs are bound to reimburse to the


donee the necessary expenses which he has incurred for the
preservation of the property donated to him, though they may
not have augmented its value.
The donee who collates in kind an immovable, which has
been given to him, must be reimbursed by his co-heirs for the
improvements which have increased the value of the property,
and which exist at the time the partition is effected.
As to works made on the estate for the mere pleasure of
the donee, no reimbursement is due him for them; he has,
however, the right to remove them, if he can do so without
injuring the estate. (n)

This article talks the RULES FOR RETURNING IN


KIND
When there is collation in kind (return of the
property or the value), the other heirs should reimburse
the donee for the necessary expenses
You have to reimburse the heir of the value of the
improvements
The donee has the right to remove the improvements
which are for his own pleasure if the removal will not
impair the property donated

ARTICLE 1077. Should any question arise among the coheirs upon the obligation to bring to collation or as to the
things which are subject to collation, the distribution of the
estate shall not be interrupted for this reason, provided
adequate security is given. (1050)

Questions on collation do not interrupt distribution


as long as adequate security is given
Only properties received by gratuitous title may be
the subject of collation
When the estate proceedings have not yet reached
the stage of partitioning and distributing the property, any
question of collation that is brought up can be regarded as
having been prematurely raised
SECTION 6
Partition and Distribution of the Estate
SUBSECTION 1
Partition

ARTICLE 1078. Where there are two or more heirs, the


whole estate of the decedent is, before its partition, owned in
common by such heirs, subject to the payment of debts of the
deceased. (n)
ARTICLE 1079. Partition, in general, is the separation,
division and assignment of a thing held in common among
those to whom it may belong. The thing itself may be divided,
or its value. (n)

Article 1079 defines PARTITION


Before partition, there is co-heirship. This co-heirship
is dissolved by partition.

How partition is made?


1. JUDICIAL PARTITION
2. EXTRA-JUDICIAL PARTITION
ARTICLE 1080. Should a person make a partition of his
estate by an act inter vivos, or by will, such partition shall be

respected, insofar as it does not prejudice the legitime of


the compulsory heirs.
A parent who, in the interest of his or her family, desires
to keep any agricultural, industrial, or manufacturing
enterprise intact, may avail himself of the right granted him
in this article, by ordering that the legitime of the other
children to whom the property is not assigned, be paid in
cash. (1056a)

This is refers to Extra-judicial Partition by the


Decedent
This is subject to the limitation that the legitimes of
the compulsory heirs should not be impaired

Kinds of extra-judicial partition by decedent:


1. By acts inter vivos
There is no requirement or no formalities required.
In partition, there is no transfer of ownership. There is
merely a physical determination of the portion to be
given to the heir.
2. By will
Formalities are required.
Kinds of extra-judicial partition by heirs:
1. Orally
This is binding only between the heirs themselves
who
are participants
2. By public instrument
This is binding even against the 3rd person.
Limitations of extra-judicial partition:
1. There are no debts;
2. That everyone is of legal age or represented by
guardian.
ARTICLE 1081. A person may, by an act inter vivos or
mortis causa, intrust the mere power to make the partition
after his death to any person who is not one of the co-heirs.
i
The provisions of this and of the preceding article shall
be observed even should there be among the co-heirs a
minor or a person subject to guardianship; but the
mandatory, in such case, shall make an inventory of the
property of the estate, after notifying the co-heirs, the
creditors, and the legatees or devisees. (1057a)

This is what you call the appointment of the


MANDATARY
MANDATARY is a person entrusted to make the
partition
The heirs are not bound by the partition made by
the mandatory. The heirs may accept or they may
reject.
In case of conflict, the court may settle the conflict

Requirements in order that there is valid partition by


the mandatary:
1. The mandatary should not be a co-heir because if
he is one of the co-heirs his partition may be
tainted with impartiality.
2. In case one of the heirs is subject to guardianship,
it is required that there be notifications to the coheirs, creditors, legatees or devisees
3. There has to be inventory of the estate
ARTICLE 1082. Every act which is intended to put an end
to indivision among co-heirs and legatees or devisees is
deemed to be a partition, although it should purport to be a
sale, an exchange, a compromise, or any other transaction.
(n)

There is no specific time as to when partition is to


be effected as long as it is intended to put an end to
indivision or to end the co-ownership

ARTICLE 1083. Every co-heir has a right to demand the


division of the estate unless the testator should have
expressly forbidden its partition, in which case the period of
indivision shall not exceed twenty years as provided in
article 494. This power of the testator to prohibit division
applies to the legitime.
Even though forbidden by the testator, the coownership terminates when any of the causes for which
partnership is dissolved takes place, or when the court finds
for compelling reasons that division should be ordered, upon
petition of one of the co-heirs. (1051a)

50

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

GENERAL RULE: Heirs, whether compulsory or voluntary, can


demand partition
EXCEPTION: When the testator has forbidden the partition of
the estate. But this prohibition shall not exceed 20 years.

6.

If all of the of the co-heirs


demand partition, they shall be allowed to
redeem the proportionate share pertaining to
them
The demand must be made within one
month from Notification in Writing
The redemptioner must reimburse the
price of the sale

Instances when the heirs may partition even if before


20 years:
1.
When any of the causes for the termination
of the partnership (e.g. death)
2.
If the heirs themselves mutually agree to
partition
3.
Upon order of the court for compelling
reasons and upon petition of the heirs

7.

ARTICLE 1084. Voluntary heirs upon whom some condition


has been imposed cannot demand a partition until the
condition has been fulfilled; but the other co-heirs may
demand it by giving sufficient security for the rights which the
former may have in case the condition should be complied
with; and until it is known that the condition has not been
fulfilled or can never be complied with, the partition shall be
understood to be provisional. (1054a)

ARTICLE 1089. The titles of acquisition or ownership of


each property shall be delivered to the co-heir to whom said
property has been adjudicated. (1065a)

A voluntary heir whose institution is subject to a


condition cannot demand partition before the fulfillment
of the condition. The other heirs concurring with such
voluntary heir may demand partition provided they given
security or cash bond to safeguard the rights of the
conditional heirs

GENERAL RULE: The right to demand partition does not


prescribe
EXCEPTION: When one of the heirs adversely possesses the
property and he has complied with all the requirements for
acquisitive prescription
ARTICLE 1085. In the partition of the estate, equality shall
be observed as far as possible, dividing the property into lots,
or assigning to each of the co-heirs things of the same nature,
quality and kind. (1061)
ARTICLE 1086. Should a thing be indivisible, or would be
much impaired by its being divided, it may be adjudicated to
one of the heirs, provided he shall pay the others the excess in
cash.
Nevertheless, if any of the heirs should demand that the
thing be sold at public auction and that strangers be allowed
to bid, this must be done. (1062)

Note that if even ONE heir should demand a public


auction, this must be done

ARTICLE 1087. In the partition the co-heirs shall reimburse


one another for the income and fruits which each one of them
may have received from any property of the estate, for any
useful and necessary expenses made upon such property, and
for any damage thereto through malice or neglect. (1063)
Reimbursement made by co-heirs:
1. Income and fruits
2. Useful and necessary expenses
3. Damages thru malice or neglect
ARTICLE 1088. Should any of the heirs sell his hereditary
rights to a stranger before the partition, any or all of the coheirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they do so
within the period of one month from the time they were
notified in writing of the sale by the vendor. (1067a)

This article talks about LEGAL REDEMPTION

Requisites for the exercise of legal redemption:


1.
There are two or more heirs
2.
There is a sale of hereditary right

There must be a sale or other


onerous disposition

The sale must be voluntary or


forced as in the case of sales on execution
3.
The buyer must be a stranger
4.
The sale must be made BEFORE partition
5.
At least one co-heir must demand partition

GENERAL RULE: The right of legal redemption is a


PERSONAL RIGHT. They cannot assign or sell this right.
EXCEPTION: If the heir who wants to exercise the right of
legal redemption dies prior to the exercise, his right may be
transmitted to his own heirs.

ARTICLE 1090. When the title comprises two or more


pieces of land which have been assigned to two or more coheirs, or when it covers one piece of land which has been
divided between two or more co-heirs, the title shall be
delivered to the one having the largest interest, and
authentic copies of the title shall be furnished to the other
co-heirs at the expense of the estate. If the interest of each
co-heir should be the same, the oldest shall have the title.
(1066a)

Title
here
refers
to
the
document evidencing the right of ownership and not to
the right itself

Order of preference as to whom title shall be


delivered if some properties remain undivided:
1. The one having the largest interest
2. If all of them have the same interest, the oldest heir
SUBSECTION 2
Effects of Partition
ARTICLE 1091. A partition legally made confers upon each
heir the exclusive ownership of the property adjudicated to
him. (1068)
ARTICLE 1092. After the partition has been made, the coheirs shall be reciprocally bound to warrant the title to, and
the quality of, each property adjudicated. (1069a)

For warranty against eviction to


be enforceable, it is enough that there be a burden or
encumbrance that must be respected.
It is not
necessary that the heir be deprived full ownership
Eviction here does not have to be
by final judgment before recourse to the warranty can
be sought, as long as no heir objects

Effects of partition:
1. Once there is partition, the heirs will be the
exclusive owners of the thing given to them or
delivered to them (Article 1091)
2. There is a reciprocal and proportionate warranty
(Article 1092)
ARTICLE 1093. The reciprocal obligation of warranty
referred to in the preceding article shall be proportionate to
the respective hereditary shares of the co-heirs, but if any
one of them should be insolvent, the other co-heirs shall be
liable for his part in the same proportion, deducting the part
corresponding to the one who should be indemnified.
Those who pay for the insolvent heir shall have a right
of action against him for reimbursement, should his financial
condition improve. (1071)
ARTICLE 1094. An action to enforce the warranty among
co-heirs must be brought within ten years from the date the
right of action accrues. (n)

The period of exercise of the


warranty is 10 years

ARTICLE 1095. If a credit should be assigned as


collectible, the co-heirs shall not be liable for the

51

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

subsequent insolvency of the debtor of the estate, but only for


his insolvency at the time the partition is made.
The warranty of the solvency of the debtor can only be
enforced during the five years following the partition.
Co-heirs do not warrant bad debts, if so known to, and
accepted by, the distributee. But if such debts are not
assigned to a co-heir, and should be collected, in whole or in
part, the amount collected shall be distributed proportionately
among the heirs. (1072a)

This is Warranty as to Insolvency


There is a warranty of insolvency
provided that the debtor was solvent at the time of the
partition, not later
Such warranty is good for 5 years,
following the date of partition
There is no warranty for bad debts.
An heir accepts them at his own risk

ARTICLE 1096. The obligation of warranty among co-heirs


shall cease in the following cases:
(1) When the testator himself has made the partition, unless
it
appears, or it may be reasonably presumed, that his
intention
was otherwise, but the legitime shall always
remain unimpaired;
(2) When it has been so expressly stipulated in the
agreement of
partition, unless there has been bad faith;
(3) When the eviction is due to a cause subsequent to the
partition,
or has been caused by the fault of the
distributee of the property. (1070a)
SUBSECTION 3
Rescission and Nullity of Partition

ARTICLE 1102. An heir who has alienated the whole or a


considerable part of the real property adjudicated to him
cannot maintain an action for rescission on the ground of
lesion, but he shall have a right to be indemnified in cash.
(1078a)

ARTICLE 1099. The partition made by the testator cannot be


impugned on the ground of lesion, except when the legitime of
the compulsory heirs is thereby prejudiced, or when it appears
or may reasonably be presumed, that the intention of the
testator was otherwise. (1075)
GENERAL RULE: In order that that you may be justified in
asking for rescission on the account of lesion, the deduction
must at least be . If it is less than , you can only ask for a
completion.
EXCEPTION: If the partition is made by the TESTATOR, even if
the deduction is less than , you cannot ask for rescission
EXCEPTION TO THE EXCEPTION:
1. When the legitime of the compulsory heirs has been
impaired.
2. If the intent of the testator is for his partition to be
rescinded should there be lesion

Rescission

requires

mutual

restitution

ARTICLE 1103. The omission of one or more objects or


securities of the inheritance shall not cause the rescission of
the partition on the ground of lesion, but the partition shall
be completed by the distribution of the objects or securities
which have been omitted. (1079a)
ARTICLE 1104. A partition made with preterition of any of
the compulsory heirs shall not be rescinded, unless it be
proved that there was bad faith or fraud on the part of the
other persons interested; but the latter shall be
proportionately obliged to pay to the person omitted the
share which belongs to him. (1080)

ARTICLE 1097. A partition may be rescinded or annulled for


the same causes as contracts. (1073a)
ARTICLE 1098. A partition, judicial or extra-judicial, may
also be rescinded on account of lesion, when any one of the
co-heirs received things whose value is less, by at least onefourth, than the share to which he is entitled, considering the
value of the things at the time they were adjudicated. (1074a)

The defendant heir, despite a proper


ground for rescission, is given an option:
1.
To indemnify the plaintiff This may be
made by

payment in cash or

delivery of the thing of the same kind.


2.
New partition

This involves a preterition of


compulsory heirs, not in the institution, but in the
partition of one or more objection
Preterition of an object in a will
gives rise to mixed succession. Preterition of an object
in the partition does not give rise to rescission.

GENERAL RULE: Such preterition in the partition will NOT


cause rescission.
EXCEPTION: If there was
1.
Fraud
2.
Bad faith
ARTICLE 1105. A partition which includes a person
believed to be an heir, but who is not, shall be void only with
respect to such person. (1081a)

This speaks of an intrusion of a


stranger in the partition
The partition in this case is not
completely void.
Only the part corresponding to
the non-heir is void.

ARTICLE 1100. The action for rescission on account of lesion


shall prescribe after four years from the time the partition was
made. (1076)

If brought after more than 4 years, the


action for rescission will fail
The 4-year period begins to run not from the
time of the project of partition but from the time there is
court approval

ARTICLE 1101. The heir who is sued shall have the option of
indemnifying the plaintiff for the loss, or consenting to a new
partition.
Indemnity may be made by payment in cash or by the
delivery of a thing of the same kind and quality as that
awarded to the plaintiff.
If a new partition is made, it shall affect neither those who
have not been prejudiced nor those have not received more
than their just share. (1077a)

52

SUCCESSION REVIEWER (4th Year : 2008-2009)


Prepared by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Success is not the key to happiness. Happiness is the


key to success.
If you love what you are doing, you will be successful.
- Albert Schweitzer

53