3M TSN 2015 - Succession Complete

SUCCESSION TRANSCRIPT
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA

Ateneo de Davao College of Law | Tres Manresa 2015
1. Testate or testamentary. When you say
testate, the testator, who later on dies, he disposes
of his properties by means of a will. So he drafts a
last will and testament, and then he provides in the
last will and testament to whom shall the properties
go after his death.
Title IV. SUCCESSION

CHAPTER 1. GENERAL PROVISIONS
June 18, 2015 (EAE)
Our subject is Wills and Succession. Basically, the subject is
divided into two:
2. Legal or intestate. Legal succession, generally

when a person dies without a will. So walay
maggovern it is the law.
1. Wills or testamentary succession

2. Legal succession or intestate succession.
When you encounter the word succession, what is the first
thing that comes to your mind? You think of someone who
dies. You dont think of succession in political law, or in
beauty pageants.
Art. 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.
This actually gives us the legal definition of succession. So
from there, you will see the different attributes of succession
which we will discuss later.
BASIS OF SUCCESSION
Why do we have succession?
1. Natural Law because it is in the nature of man to
provide for those he will leave behind. Although for some
people, they dont think its their obligation; but usually it is
within human nature to really provide.
2. Socioeconomic reason because what happens if you
have several properties, and after you die your properties will
die with you? So nobody will benefit. For the property not to
remain idle, to benefit from the property, we have the law on
succession, to prevent the property from becoming idle.
3. Attribute of ownership What are the attributes of
ownership? If you are the owner, what are you rights? To
use, dispose. So dispositionwe have what we call
disposition inter vivos or disposition during the lifetime of the
owner, and disposition mortis causa or dispositions which
become effective upon death.
So as owner of the property, your right to dispose should not
be limited to a disposition inter vivos or during your lifetime.
It is part of your ownership, also to control how your
properties will be disposed of after your death. So that is also
one attribute of ownership.
Now, if the testator is just allowed to give his property a

foreigner by testamentary succession, then it would also be
very easy to circumvent the prohibition. I will sell to you this
land, but lets just make it a will kay di man pwede ang sale.
So inig kamatay nalang nako, imuha na gyud na siya in my
will. So that is not allowed, as discussed in the case of:
Ramirez vs. Ramirez
Here we have legal succession. Actually, even if there is a
will, there is a part there which goes by operation to the
heirs. That is the portion which we call the legitime. That is
also not by reason of the will of the testator but by operation
of law. So again, let us just make it clear that the succession
mentioned in the constitution refers not to testamentary
succession where you are instituted as an heir, but by
operation or law or legal succession.
Before we discuss Article 774 again which defines
succession, there are actually several kinds of succession. As
I mentioned to you, we have:
1. testamentary/testate succession
2. legal/intestate succession
3. mixed/partly by will, partly by operation of law
Aside from that, we also have the concepts:
1. succession inter vivos
2. succession mortis causa
What do we mean by succession inter vivos and mortis
causa?
If you still remember, in your property, we also discussed
donation inter vivos. I dont think we discussed donation
mortis causa.
Donation inter vivos
a gratuitous disposition that
takes effect during the lifetime
of the donor
These are the bases of succession.

In constitutional law, have you also encountered the word
succession?
Article XII. Sec. 7. Save in cases of hereditary succession,
no private lands shall be transferred or conveyed except to
individuals xxx
Regarding ownership of lands, what do you remember? So
foreigners cannot own lands in the Philippines. Otherwise, if
they are allowed, sila na siguro tag-iya sa tanang lands in the
Philippines Flower pot nalang siguro mabilin sa atoa.
They are not allowed, but there is an exception. That is
mentioned also in Article XII Section 7.
What is the kind of succession being referred to in the
constitution? Legal or intestate succession.
Donation mortis causa

also a gratuitous disposition
which takes effect upon the
death of the donor
Governed by Article 728 of the
New Civil Code
Governed by the law on

donation
Governed by the law on

succession
synonymous to succession inter
Synonymous to succession mortis
vivos
causa
Art. 728. Donations which are to take effect upon the death
of the donor partake of the nature of testamentary
provisions, and shall be governed by the rules established in
the Title on Succession.
Why do we have to know if this is donation inter vivos and
this one is succession or donation mortis causa, it will take
effect upon death? Why is there a need to know the
distinction?
We have two kinds of succession:

Ad Majorem Dei Gloriam
So when you say formalities, are you saying that the two
have different formalities?
For example it is donation inter vivos, what formalities should
be complied with?
If you still remember, what are the formalities of donations?
You should say that, if it is donation inter vivos, it should
follow the formalities of donations.
1. It conveys no title or ownership to the transferee

before the death of the transferor; or, what amounts
to the same thing, that the transferor should retain
the ownership (full or naked) and control of the
property while alive;
What kind of ownership are we talking about here? For
example, I provided in my Deed of Donation, I am donating
to X this property but I remain to be the title holder; but he
can already use the property, he can benefit, he can harvest
the fruits etc. Is that donation mortis causa or inter vivos?
If property to be donated is less than P5K = may be

oral, acceptance + simultaneous delivery
If the value exceeds P5K
What do you call that when I have the title but I dont have
the right to use the property?
Personal property = must be in writing
How about if I just reserve the naked ownership?
Real property = must be in a public document
If the transferor retains ownership, whether full ownership or

naked ownership, as long as he retains ownership. That is
one indication.
So you have to observe that for donations. What happens if

those formalities are not complied with? The donation is void
because it is one of the formal contracts provided under the
New Civil Code. The observance of the formalities is essential
for the validity of the donation.
Now if it donation mortis causa, it must comply with the
formalities of wills. I dont expect you yet to know the
formalities of wills. Obviously they are different from the
formalities of donations.
Example, if it is a holographic will, it has to be entirely
written, dated and signed in the hands of the testator. Thats
one.
If it is a notarial will, it has to be of course in writing; it has
to be acknowledged before the notary public; it has to have
an attestation clause; it should bear marginal signatures; it
should be numbered, etc. Daghan kayo na silag
requirements.
Its easy to say that if it is a donation inter vivos, then to be
valid it has to be in the form of a donation. If it is mortis
causa, it has to be in the form of a will. Thats very easy to
say. Now the problem here is: how do we know if the
document intends to transfer property inter vivos or mortis
causa?
Because there are several cases wherein usually ang problem
here is there are certain documents denominated as Deed
of Donation but when you read the text, it appears that the
intention of the donor is to transfer ownership only upon
death.
So if it is captioned as a Deed of Donation and then it is
intended to transfer ownership only upon death, and it is in
the form of a deed of donation, it is not valid. The intended
recipient or transferee cannot assert ownership because the
document is not valid. There is no valid transfer. For it to be
valid, it should have been in the form of a will. But again as I
said, how do we know if this is mortis causa or inter vivos?
It is not the title which governs of course. There are several
cases discussed by the Supreme Court.
Ganuelas vs. Cawed
Provision in the Deed of Donation says, That, for and in
consideration of the love and affection which the DONOR has
for the DONEE, and of the faithful services the latter has
rendered in the past to the former, the said DONOR does by
these presents transfer and convey, by way of DONATION,
unto the DONEE the property above, described, to become
effective upon the death of the DONOR; but in the event that
the DONEE should die before the DONOR, the present
donation shall be deemed rescinded and of no further force
and effect.
The Supreme Court here cited the three distinguishing
characteristics of a donation mortis causa:
2. That 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;
Revocability can be impliedhow can you imply? Why is it a
distinguishing characteristic of a donation mortis causa,
whether there is a right to revoke?
Because insofar as wills are concerned, they are essentially
revocable or what we call ambulatory. When we say
revocable, there is even no ground provided for revocation.
The testator can just revoke for any ground, for any reason;
or even without a reason. He can just say Because I dont
like you anymore; because I thought we were close but I
realized di diay. So he can revoke any time, unlike a
donation na he can only revoke for specific causes. If that is
the character of your donation, its not donation inter vivos
but mortis causa.
3. That the transfer should be void if the transferor
should survive the transferee.
Why is it an indication?What is there in succession that made
the Supreme Court say that this is an indication of a mode of
transferring mortis causa?
In a donation for inter vivos for example, if it is a real
donation inter vivos. A donated his land to B. And then, B
died. What happens to the property, in donation inter vivos?
It becomes the property of the estate of B. So in a real
donation, the property will not revert to the donor. The
property will go to the heirs of the donee.
But if you say na kung mamatay ka una, mabalik sa akoa ang
property, that is not donation inter vivos, that is mortis
causa, because in succession, the heir should survive the
testator. You cannot be an heir of your parents if you die
ahead of your parents. Dapat mauna sila mamatay para ka
magmana. That is the essence in succession. If your parents
already gave to you a certain property in their will, but you
die ahead of them, you will not get the property. Alangan,
giunsa nimo pagkaeredero kung nauna ka namatay. In fact,

sila ang nahimong eredero nimo. So the property will go back
to the estate of your parents. Thats the third indication.
Here it was very clear in the document that it was really a

transfer mortis causa because it said to become effective
upon the death of the donor and then it said should the
donee die before the donor, the donation shall be rescinded
and of no further force and effect. So this is actually a
feature of a donation mortis causa or succession mortis
causa.
The document was not enough because it was not in the
form of the will. Therefore the transfer here was not valid.
We learned in this case, the three
characteristics of a donation mortis causa.
distinguishing
Now lets go to the case of:

Villanueva vs. Spouses Branoco
What would be the relevance if the donation is mortis causa?
There are actually two reasons:
1. If it is a donation mortis causa, the document itself would
not be valid because it is in the form of a donation.
2. If it is mortis causa also, it is essentially revocable; so even
if you already donated but the donation is mortis causa, you
can later on dispose of the very same property because
testamentary provision is essentially revocable as we already
discussed.
This is a donation inter vivos. What were the specific
provisions cited by the Supreme Court that said that this was a
donation inter vivos?
After the donation, who benefited from the property? Did the
donor still enjoy the fruits of the property after the donation?
Yes. So what would be the relevance of this? If you are the
owner of the property, do you need to specify that you have a
right to the fruits of the property? No, because that is part and
parcel of your ownership. But in this case she had to specify,
because if she did not specify, everything would go to the
done. She could not benefit not even from the fruits. So this
had to be mentioned in the Deed of Donation otherwise
everything will be enjoyed by the donee.
Now how about the provision here, ownership be vested on
her upon my demise, isnt this an indication that this should
be mortis causa?
In the case of Ganuelas vs. Cawed, we mentioned that the
three distinguishing characteristics. In this particular case the
Supreme Court also mentioned the same three distinguishing
characteristics, but the Supreme Court ADDED 3 MORE. What
are these 3 other distinguishing characteristics?
[4] [T]he specification in a deed of the causes whereby
the act may be revoked by the donor indicates that the
donation is inter vivos, rather than a disposition mortis
causa [;]
Why do you say that this is a distinguishing characteristic? If
you need to specify in the deed of donation the reasons for
revocation, then it is not really mortis causa. Because again,
you really do not need to specify a reason in a donation mortis
causa.
[5] That the designation of the dovvnation as mortis
causa, or a provision in the deed to the effect that the
donation is "to take effect at the death of the donor"
are not controlling criteria; such statements are to be
construed together with the rest of the instrument, in
order to give effect to the real intent of the
transferor[;] [and]
That is why in this case, even if there is such a statement in
the deed of donation that ownership shall be vested upon the
death of the donor, the Supreme Court did not limit the
evaluation to that statement. It took into account the several
other provisions of the deed of donation.
(6) That in case of doubt, the conveyance should be
deemed donation inter vivos rather than mortis causa,
in order to avoid uncertainty as to the ownership of the
property subject of the deed.
So in case of doubt, we resolve the doubt in favor of inter
vivos. Because, if it is a donation inter vivos, the ownership
will now be certain. It is now with the donee. Unlike, in a
mortis causa disposition, were not certain because it may still
be revoked by the donor, testator or he may still give the
property to some other person. So wala pa gyud ma-settle ang

issue of ownership if it is mortis causa.
In case of doubt again, the doubt has to be resolved in favor
of donation inter vivos.
Now how about the fact that Rodriguez, after the deed of
donation was executed, she sold the same property to another
person? Would it not be an indication that her intention was
really just a transfer mortis causa, revocable at any time?
The Supreme Court said that the petitioner cannot even
capitalize on Rodrigos post-donation transfer of the
property as proof of her retention of ownership
because if such were the barometer in interpreting
deeds of donation, not only will great legal uncertainty
be visited on gratuitous dispositions, this will give
license to rogue property owners to set at naught
perfected transfers of titles, which, while founded on
liberality, is a valid mode of passing ownership.
So that should not be used as a barometer. You should not be
tolerated na you already donated the property then you sell
the property to another person even if that was a real
donation. It was frowned upon by the Supreme Court in this
particular case.
So going back to our definition of succession under Article

774, it says it is a mode of acquisition.
Succession is actually a mode of acquisition. Succession is
not a property; it is not the right or the obligation that is
transmitted. It is the mode of acquiring ownership.
Actually we have two modes of acquiring ownership:
Art. 712. Ownership is acquired by occupation and by
intellectual creation.
Ownership and other real rights over property are acquired
and transmitted by law, by donation, by estate and intestate
succession, and in consequence of certain contracts, by
tradition.
They may also be acquired by means of prescription.
Ownership is either acquired, or acquired and transmitted.
When you say (1) original mode of acquisition,
ownership is acquired. There is no prior owner of that
property. It is acquired for the first time, original mode, like
intellectual creation. You create something, like a novel. It is
a creation; you created that. You are the original owner of
that. Thats the original mode.
When you say (2) derivative mode, there is already an
owner, but you transfer the ownership. You acquire the
ownership from another owner. For example, succession is
one. There is the original owner; then by succession, that
ownership is transferred to the successor. Succession is a
derivative mode of acquiring ownership.
So let us go to Article 775. This merely defines what the term
decedent is.
Art. 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.
Decedent is the general term used to describe the person
who died, whether he left the will or not. But if he left a will,
we have a technical term for that: testator. If you termed a
person as testator even if he died without a will, that would
not be correct. He is a decedent, not a testator.
Art. 776. The inheritance includes all the property, rights
and obligations of a person which are not extinguished by his
death.
This defines what is inheritance. When you say inheritance,
that is the one mentioned. All the property, rights and
obligations of a personthat would be the inheritance.
Succession it is NOT the same as inheritance. When you
say succession, again under Article 774, it is the mode of
acquisition.
Now let us go to the inheritance. We have the properties,
rights and obligation of a person which are not extinguished
by his death.
So we mentioned properties, rights and obligations. These
can be transmitted by succession. So if a person dies, his
properties, rights and obligations can also be transmitted to
his heirs.
PROPERTY
When you say property that can be transmitted by
succession, what kind of property? Real and personal
property. Real property or immovables; personal or
movables.
Now we also have intangible properties. What do you
understand by intangible properties? When you have a
business and it has a good reputation what do you call that?
Good will. When you have an invention and you dont want
some other people to copy it, what do you do with it? Patent.
That is also intangible. If you have a novel, and of course to
prevent plagiarism what do you do with it? You copyright it.
If you have a business and you want other people to use the
name of your business, what do they do? Franchise. These
are examples of intangibles. They are also properties, and
they can also be subject of succession.
Now for a property to be considered to be a proper subject
of succession, the property must be licit. When we say licit,
the property first, should not be outside the commerce of
man. What do you understand by not outside the commerce
of man? When do you say that a property is not within the
commerce of man? So the sun, what do you call the sun?
Res nullus, because nobody owns the sun. Even if you claim
this is my sun, my moon, my star, you cannot prevent
anybody from looking at the sun, unless ilubong nalang nimo
siya. So, the sun, the moon, the stars, the fishes that swim
in the ocean. What else? What do you mean by res
communes? So owned by the community, the bridges,
municipal buildings. What else?
How about shabu? Can you pass that on to your heirs? It is
prohibited. Even if you can physically pass on, if you place I
hereby give my stock of shabu to my son, that will not be
valid. It will go to the state and be destroyed.
So that is the concept of property.
Now if you still remember, in your Bill of Rights, diba no
person shall be deprived of life, liberty or property without
due process of law can you say that the concept of
property in the Constitution is the same as the concept of
property in Succession?
For example, your employment; is that considered as
property in the Bill of Rights? Yes, so you cannot just be
deprived of that without due process of law. So in that
sense, can you say that the concept of property in the Bill of
Rights is the same as Succession? Okay, so different ang
concept sa property in the Bill of Rights because mas broad
ang coverage. In Succession were just dealing really
with properties, properties in their technical sense, in
their physical sense. Because for example, labor, it is
considered as property in the Bill of Rights, but in Succession
that is not property. You cannot pass that on to your heirs. If

youre the manager you cannot execute a will, saying I
hereby institute my son as my successor unless its your
corporation; but you cannot pass that on, even your position.
I am the mayor, but if I die my son will succeed. No, we
have a law for that.
How about the human body? Is that property? Can you sell
your hands, your liver for example? As a general rule, the
human body is not property. You cannot pass that onit is
not capable of appropriation. You cannot sell that as a
general rule. You cannot say I hereby give my heart to my
boyfriend so that he will remember me as long as he lives.
Dili na siya valid. But theres an exception. What would be
the basis of that?
We have a law for that.
The Organ Donation Act of 1991 (R.A. 7170)
Actually there are amendments to the Organ Donation Act
but as to the provisions wala pa no, theres just an
amendment on the permeal transplant, but it did not amend
or modify the provisions basically.
Thats the only way under our present laws by which an
organ of the human body can be transmitted by Succession
in what manner. Under the Organ Donation Act, certain
organs of the human body may be given or transferred either
by donation or by a will, a legacy. We will discuss legacy, a
will because we are talking of Succession.
When we say legacy, it is a specific gift of personal property
by means of a will. You have to write that in your will. You
can give something, a part of your body, an organ of your
body to somebody in your will. But there are certain
requisites. Please read:
Section 6. Persons Who May Become Legatees or
Donees. The following persons may become legatees or
donees of human bodies or parts thereof for any of the
purposes stated hereunder:
(a)
Any hospital, physician or surgeon - For medical or
dental education, research, advancement of medical or
dental science, therapy or transplantation;
(b)
Any accredited medical or dental school, college or
university - For education, research, advancement of medical
or dental science, or therapy;
(c)
Any organ bank storage facility - For medical or
dental education, research, therapy, or transplantation; and
(d)
Any specified individual
transplantation needed by him.
For
therapy
or
Remember the persons or entities who may become legatees

or donees. Not just anybody, but the ones mentioned under
Section 6 of R.A. 7170. And not just for any purpose, but
only for the purposes mentioned in Section 6 again of R.A.
7170. Now how do we give that part of the human body by
will?
Section 8. Manner of Executing a Legacy.
(a)
Legacy of all or part of the human body under
Section 3 hereof may be made by will. The legacy becomes
effective upon the death of the testator without waiting for
probate of the will. If the will is not probated, or if it is
declared invalid for testamentary purposes, the legacy, to the
extent that it was executed in good faith, is nevertheless
valid and effective.
(b)
A legacy of all or part of the human body under
Section 3 hereof may also be made in any document other
than a will. The legacy becomes effective upon death of the
testator and shall be respected by and binding upon his
executor or administrator, heirs, assigns, successors-ininterest and all members of the family. The document, which
may be a card or any paper designed to be carried on a
person, must be signed by the testator in the presence of
two witnesses who must sign the document in his presence.
If the testator cannot sign, the document may be signed for
him at his discretion and in his presence, in the presence of
two witnesses who must, likewise, sign the document in the
presence of the testator. Delivery of the document of legacy
during the testator's lifetime is not necessary to make the
legacy valid.
(c)
The legacy may be made to a specified legatee or
without specifying a legatee. If the legacy is made to a
specified legatee who is not available at the time and place
of the testator's death, the attending physician or surgeon, in
the absence of any expressed indication that the testator
desired otherwise, may accept the legacy as legatee. If the
legacy does not specify a legatee, the legacy may be
accepted by the attending physician or surgeon as legatee
upon or following the testator's death. The physician who
becomes a legatee under this subsection shall not participate
in the procedures for removing or transplanting a part or
parts of the body of the decedent.
(d)
The testator may designate in his will, card or other
document, the surgeon or physician who will carry out the
appropriate procedures. In the absence of a designation, or
if the designee is not available, the legatee or other persons
authorized to accept the legacy may authorize any surgeon
or physician for the purpose.
Again, you can give it by a will, by donation or by legacy.
When you say legacy, it is in a will, a last will and testament.
Now we have the basic rule in Succession when we go to
probate that if there is a will, it has to be probated. What do
we understand by probate?
Probate is a proceeding intended to determine the validity of
the will. It doesnt follow ha once there is a will na nabilin,
okay na to siya, so ihatag na sa iyaha diretso ang property,
NO ha.
You have to file a petition in court for the probate of the will.
And then the court will examine the will. And then the court
will determine if the testator was qualified at the time he
made the will and whether the will is valid as to form, and
whether the will was really executed by him. Only when the
court is satisfied that all those requisites are complied with,
then the will is declared admitted to probate. And then the
properties mentioned in the will can now be distributed in
accordance with the will. Probate proceedings, taking into
account the congestion of our courts, swerte naka na
makahuman kag probate kana ha kung wala mag-oppose
one year. Swerte na na siya. Kay kung nay mag-oppose,
swerte naka kung mahuman mog 10 years. Kana siya ang
nature sa probate proceeding.
Now in the case of legacy of an organ, the law says without
waiting for probate of the will. Of course, it is understandable
if you donated for example your kidney, your heart, and then
mag-probate pa ka, wala na. Gilubong na tong imong
gitagaan ug organ. Imoha nalang nang imuhang heart. So,
you dont have to wait for the probate of the will.
Or, even if the will is declared to be invalid. Halimbawa, wala
na-comply ang requisites daghan man kayo nag
requisites, halimbawa wala nacomply ang isa under an
ordinary will, under an ordinary situation, the will would be
invalidated. But here, even if the will is invalidated, and
as a consequence legacies mentioned in the will cannot be
given effect under ordinary situation, but if it is a legacy of
an organ or a part of the human body, the law says it can
still be valid and effective even if the will itself is not
valid as long as it was made in good faith. So mao na
na siyaang requisites. Different ang technicalities insofar as

the legacy of an organ of the human body is concerned.
Again, any property can be transmitted by Succession as

long as the property is not res nullus, not res communes, not
prohibited by law. They can be transmitted. And of course
also, as a GR, the properties should be owned by the
testator. You cannot just also give by will a property which
is owned by you. Although as I said, its a GR, because there
are exceptions when we go to legacies and devises. So thats
for properties.
RIGHTS
Rights can also be transmitted by Succession. What rights?
The general rule here is patrimonial rights can be
transmitted by Succession. What do we mean by patrimonial
rights? Those rights which relate to properties.
Generally, your rights pertaining to properties are not
extinguished by your death. Those rights will be transmitted
to the heirs.
Examples of these rights:
Contractual rights
The rights under a contract are transmissible. Basic example,

we have the contract of lease. In a contract of lease, diba
the lessor is the owner of the property, he has the right to
receive the rentals. The lessee, ang nagrenta, has the right
to possess the property peacefully as long as he pays also
the rentals. How about if the lessee dies? Ang mga anak
nalang nabilin? Can the lessor eject the children of the
lessees on the ground na namatay naman ang akong
kakontrata, si lessee. No, because the rights of the lessee
are also transmitted to his heirs. As long as the heirs of
course will also pay the rent. Also if the lessor dies, his
children can collect the rents, because the rights of the lessor
are transmitted to his heirs. So the lease contract as a
general rule is not extinguished upon the death of either the
lessor or the lessee.
Right to insurance
A contract of insurance, it can also be transmitted. We have

the case of:
Great Pacific Life Assurance Corp. vs. CA
Now in relation to our subject, the question here is that may
the spouse of Dr. Leuterio file the suit against GrePaLife?
Because according to GrePaLife, the spouse is not an
interested party. Take note here of the transaction, diba, the
insurance company was GrePaLife and then DBP was the
entity there from which the housing loan mortgagors
borrowed money and mortgaged their properties. The
borrowers, including Dr. Leuterio, borrowed money from DBP
and to secure that loan they mortgaged the house to DBP.
DBP to assure that it will be paid, insured the lives of the
housing loan mortgagors. That is what we call the mortgage
redemption insurance, or MRI. What is the consequence of
that? If the borrower dies, then the insurance company will
settle the outstanding obligation, such that, assuredsi DBP.
So you see in that contract, the spouse of Leuterio is not a
party. So, can she file the suit to collect on the proceeds of
the insurance?
The Supreme Court said a policy of insurance upon life or
health may pass by transfer, will or succession to any person,
whether he has an insurable interest or not, and such person
may recover it whatever the insured might have recovered.
So here, the widow of the insured, Dr. Leuterio, may file the
suit against GrePaLife. The rights under a contract of
insurance or also transmissible. Thats in the case of
GrePaLife.
Right to file an action for forcible entry or

unlawful detainer
If you are the lawful owner of property, and you want to

eject an occupant from the property, but even before you file
a case or while the case is pending you died, your heirs may
continue the case or institute the case. Your right passes on
to them. That right is not extinguished by them.
Right to compel the execution of a public

document
If you still remember Article 1357 in obligations and

contracts, the law enumerates the following must appear in a
public document, etc. But even if the law says shall or must,
the contracts enumerated are still valid because in that
particular provision the form is just merely required for
convenience. Not for enforceability, not for validity, but
merely for convenience. So the contracts will still be valid
even if not in a public document. But, for you to transfer
your right in the Register of Deeds, you cannot just present a
handwritten document or not notarized document. So
manginahanglan gyud ang Register of Deeds for example
atong notarized document. So you would now request the
other party, ipanotaryo nato ni be. Dili naman siya
musugot naipanotaryo. So you can file na action against the
other party to compel the execution of a public document.
But if you died before filing the action or even if you filed the
action but you died while the action is pending, your rights to
compel the other can be passed on to your heirs.
to mortis causa transfers like if the lessee dies.

But can the lessor prevent the lessees from transmitting the
rights to the heirs? Is it possible? It is possible. Because, by
stipulation. Even if the rights are patrimonial in nature, but
one exception is there is a contrary stipulation. Unfortunately
in this case, that stipulation in Section 6 is not the kind of
stipulation that we are referring to. This is just a prohibition
to transfer inter vivos. This is not the kind of stipulation. You
can stipulate, you can be clear. In case of death, of either
the lessor or the lessee, this lease contract is extinguished.
So in that case, even if ordinarily rights arising from a
contract are transmissible, but by stipulation, they can be
made intransmissible. So that is one exception. But again as I
said in this case, ang iyahang provision na nakabutang sa
lease contract, does not refer to a mortis causa disposition,
only an inter vivos disposition.
June 22, 2015 (ZM)
Usufruct
Even if the usufruct relates to a property but under the NCC

either death of the parties in a usufruct the general rule is
that the usufruct is extinguished unless otherwise provided.
Agency
General rule is that a contract of agency is extinguished by

death either that of the principal or the agent. Even if the
agency relates to a property
Right to file an action to recover possession
Right to enforce civil liability arising from

crime
Example: A was constituted by B as his agent to sell a land.

That agency relates to property. But there is no transmission
of rights.
Right to recover from tort or negligence
Art. 1919. Agency is extinguished: xxx
Those are examples ha, daghan pa. Of course we cannot

enumerate all of them.
(3) By the death xxx of the principal or the agent. xxx
Again, GR: Patrimonial rights can be transmitted by

Succession. Rights relating to properties. But there are also
certain patrimonial rights that cannot be transmitted by
Succession. You have to remember them because there are
just a few of them. Even if they are considered as
patrimonial, they are considered extinguished upon the death
of the testator or the decedent. They cannot be transmitted
by Succession.
If the agent dies he cannot pass his right as an agent to his

heirs and also that of the principal.
The following are patrimonial rights that

extinguished by death and therefore are
transmissible:
are
not
Stipulated in the contract
First, even if a right is generally patrimonial, so they can be

transmitted, but if there is a contrary stipulation. Example, in
a contract of lease. Again, I already mentioned:
Inocencio case
So for example the lessee dies, and there is that provision,
are you saying that because there is that provision, the rights
of the lessee cannot be transmitted to his heirs? (Provision:
This contract is non-transferrable unless prior consent of the
lessor is obtained in writing)
If the lessee dies, diba we have the rule on Succession, that
the rights of the lessee are transmitted to his heirs. But
because of this provision in Section 6 of the lease contract,
are you saying that the rights of the lessee cannot be
transmitted, because it says non-transferrable?
So even if there is such a provision in the lease contract, it
could not prevent transmission of the rights to the heirs of
the lessee. Because that provision can only refer to a transfer
inter vivos. So that the lessee cannot just substitute another
person in his place to the lease contract. But it cannot extend
EXC to the EXC: However there is an agency that will not

be extinguished and that is when it is coupled with interest.
So it is not extinguished by the death of either party.
Example: A borrowed 5 million from B and to secure his
obligation A mortgaged his land to B and they executed a
deed of mortgage; loan with mortgage. Under the contract B
the creditor is authorized to extra judicially foreclose the
mortgage if the borrower defaults. Usually an extrajudicial
foreclosure can be effected by inserting a special power of
attorney in the contract in favor of the creditor mortgagee so
that if the debtor defaults then the creditor mortgagee does
not have to file an action in court to foreclose the mortgage.
So if the debtor dies and he subsequently defaulted, the
creditor mortgagee can now foreclose the mortgage and the
obligation of the debtor is now transmitted to his heirs. This
is because the agency is coupled with interest.
RA 3844 agricultural leasehold tenancy
Example: there is an agricultural land, and there is a person

who takes care of the land. He plants coconuts, durian,
rambutan and there he will harvest and share to you his
harvest as payment for allowing him to cultivate the land,
that is an indication of an agricultural leasehold tenancy.
When that happens, you cannot just evict the tenant from
the land. And if the tenant dies, his heirs will succeed to his
rights as a tenant, so you cannot just evict the heirs. So the
rights of the tenant are passed on to his heirs. That is what
we call security of tenure in agricultural leasehold tenancy.
In ordinary ejectment case when the complainant wins the
decision is immediately final and executory unless defendant
will post a bond. But in agricultural leasehold tenancy, you
cannot execute it. You still need to wait for the Supreme
Courts final decision. It is better na swelduhan nalang ninyo
siya. ayaw mog sugut ug sharing.
PURELY PERSONAL RIGHTS

GR: patrimonial rights can be transmitted to the heirs. But
there are also patrimonial rights that cannot be transmitted
to the heirs.
EXC: When you say purely personal rights, these are the
ones that cannot be transmitted. So they are extinguished
upon the death of the decedent. Examples:
Parental authority. Upon the death of the parents

their rights are not inherited by the other heirs. But
we also have the concept of substituted parental
authority but that is not by inheritance. That is an
express provision of the family code.
Marital rights relating to persons or property.
So you are husband and wife. You have rights
relating to each others person and property. If
either spouse dies, the rights of the either spouse
are not transmitted to their heirs. If you have a
spouse/ wife and she dies, even if she has a
beautiful sister and that is her only relative, you
cannot insist that she inherited the right of his wife
even if the sister would also insist. LOL
Right to file an action for legal separation.
That would also not survive. This is because upon
death, the marriage is dissolved.
Right to receive support.
Right to vote
Right to become a partner in a partnership.

The rights of the partner in a partnership cannot be
transmitted because partnership is based on trust
and confidence. Each partner is the agent of the
other. So if example a partner dies, his kids may not
necessarily enjoy the same trust and confidence
reposed by the partners upon the parent. In fact
death is a ground for the dissolution of the
partnership.
Guardianship. So if you are a guardian and you

died, there has to be another guardian appointed.
Right to revoke a donation by reason of

ingratitude. So if the donor dies although there
are other grounds allowed but a ground to revoke
based on ingratitude can only be exercised by the
donor himself.
Right to annuity under Article 2027. It allows

you to receive a certain amount of money if you
reach a certain age and you still survive. For
example you reach age 65 are you are still alive you
will receive your pension. So you dont need to die
before proceeds can be realized from your
insurance, so an annuity depends only upon the
existence of the person. If the person who receives
the annuity dies, the annuity stops. So it does not
pass on to the heirs.
the debt but only up to the extent of the value of the

inheritance. So they can only be compelled to pay 10 million.
Forget about the 5 million. The heirs cannot be held
personally liable for the debts of the decedent.
GR: Transmissibility of the obligation.
Example: Obligations arising from contracts.
Liu vs. Loy
Contract to sell there is no transfer of ownership until the full
payment of the purchase price while in a contract of sale
there is a transfer of ownership when there is delivery.
When he entered into a contract to sell, frank liu had the
obligation to convey the property to the buyer if the buyer
already fully pays the price. But he died so that obligation
was transmitted to the heirs.
In this case, even if there is more legal weight in a contract
of sale because there is already a transfer of ownership. But
the contract to sell has entered into ahead of the contract of
sale so there was already an obligation, the heirs cannot
disregard that obligation by entering into another contract
over the same property.
Insofar as debts are concerned, there are two views
on its transmissibility.
1.
Debts are not transmissible
One view says that debts are not actually transmitted

because prior to the distribution of the estate, the debts have
to be paid first. Before the heirs can take their shares, the
estate must first pay the taxes and debts charges and
whatever expenses. So the net hereditary estate will be
distributed to the heirs.
2.
Debts are transmissible
The other view is that debts are actually transmitted because

the burden of the debt is shouldered by the heirs. By the
payment of the debt the shares of the heirs are diminished
or reduced. So it is again ultimately a payment by the heirs
themselves. This is the prevailing view only up to the value
or extent of the inheritance.
Alvarez vs. IAC
A case for the recovery of possession was filed against
Alvarez. During the pendency, Alvarez sold the land to doctor
season. Eventually he dies and the case continued and the
court adjudged Alvarez or his heirs to return the property or
to pay the monetary value of the property In case the
property is no longer in the estate. The heirs complained
because according to them they did not inherit the property
because it was already solved by Alvarez during his lifetime
so when he died the property was not among the properties
inherited by them so they should not be liable to pay for the
monetary value of the property.
OBLIGATIONS
The SC held that they are still compelled to pay because

even if Alvarez sold the property during his lifetime and that
property was no longer in his estate but the monetary value
of that property devolved into the mass of his hereditary
estate. When he sold the property he received cash and so
his estate was augmented or increased and when he died
that estate was inherited by the heirs. So the SC said they
could not escape that liability. SC said that their liability
should only be up to the value of the property they inherited
from Alvarez and they could not be held personally liable for
his debt.
Obligations are also transmitted by succession. But when it

comes to obligations, the transmission is only up to the value
or extent of the inheritance. So if the decedent died, he has
lands cash etc amounting to 10 million. But he left payables
in the amount of 15 million. So the heirs will be made to pay
SC
discussed
the
concept
of
progressive
depersonalization of patrimonial rights and duties.
From the Roman concept of a relation from person to
person, the obligation has evolved into a relation from
patrimony to patrimony with the persons occupying only a
Right to hold public office. Public office is a

public trust. it is a privilege and not a right. So it
cannot be transmitted to the heirs.
representative position, barring those rare cases where the
obligation is strictly personal, i.e., is contracted intuitu
personae, in consideration of its performance by a specific
person and by no other.
So meaning, when you own a property you are merely
occupying a representative position. So when you die your
rights over the property are not extinguished because even if
you died you are only just a representative. Whoever will
succeed to the property will also succeed to the rights and
obligations pertaining to that property. So that is a relation
from patrimony to patrimony with the persons occupying
only a representative position. So that is why rights and
obligations relating to property as a general rule are not
extinguished by the death of the owners; they merely pass
on to the successors except when the rights and obligations
are purely personal.
Genato vs. Bayhon
GR No. 171035 august 24 2009
This involves a loan secured by an alleged dation en pago
but the loan was not paid. So the lender filed an action
against the debtor. However the debtor died. The question is
whether or not the obligation was extinguished and of course
the Supreme Court held no. the SC also discussed the case
of Alvarez relating to the concept of progressive
depersonalization of patrimonial rights and duties. So here
the loan was contracted by the respondent, he died while the
case was pending while he may no longer be compelled to
pay the loan, the debt subsists against his debt. No property
or portion of his inheritance may be transferred to his heirs
unless the debt has first been satisfied, here. The Sc
discussed the procedure on how to enforce a claim against
the estate of a deceased person governed by Rule 3 Section
20 of the Rules of Court.
Because the case was still pending and the debtor died, the
remedy of the creditor is to file a claim against the estate of
the debtor. It is not an ordinary action for collection. If there
is already a proceeding for the settlement of his estate, you
have to intervene and file a claim. If you there is no
proceeding, you, as a creditor can initiate the settlement of
his estate.
of
his
personal
Although if for example, you already made a down

payment, his heirs would have to return the down
payment or that portion which corresponds to that
which you did not benefit from. That is their
obligation but definitely not to finish the painting.
5.
Criminal liability
That is an obligation which is not transmitted. So if
A was sentenced to imprisonment for 20 years and
he died after 3 years, his children, although they
look like criminals also, they cannot be made to
serve the remaining years.
Art. 777. The rights to the succession are transmitted from

the moment of the death of the decedent.
During the life of the decedent, the rights of the heirs would
only be a mere expectancy or inchoate right. So you cannot
question a disposition that they will do.
What if you will say that it prejudices your right to support?
Still, go back to the GR, your right is merely inchoate. You
still cannot question the alienation because the decedent is
still alive.
1.
When you say sale, there is a corresponding monetary

equivalent value for that.
2.
Support is not an absolute right. It also depends upon

the capacity of the person obliged to give support. So it
depends upon the capacity of the giver and the needs of
the receiver.
As long as the decedent is still alive, his heirs do not have a

vested right upon his estate. So they cannot question any
alienation made. Even donations, you can only question that
upon their death. When a person donates all his properties,
those are valid. But once he dies, all those donations are
brought back to the estate. In the computation of the estate,
consider the value remaining at the time of death plus the
value of those donations made during the lifetime and that
would made the basis of the computations of the legitime of
the heirs.
Obligations can be made intransmissible by

contract or stipulation
Like in the case of Inocencio like a contract of lease,
you can provide there that the contract of lease will
be extinguished upon the death of either the lessor
or lessee. That is not prohibited and that is valid.
While the parents are still alive the children cannot

question those donations because their rights are
inchoate. But they can question those donations only
upon the death of their parents.
Purely personal obligations
In Article 777, the word transmission is not the proper word.

The proper word should have been made effective because
the decedent had no right to the succession. There is no
right to succession which he could possibly pass on to his
heirs. The proper wording should be The rights to the
succession are made effective from the moment of
the death of the decedent.
Exceptions:
2.
consideration
Why do we need to return the donated properties to the

estate? In order to preserve the legitime because the law
provides for legitimes to the compulsory heirs so the
decedent cannot just deprive his compulsory heirs their
legitimes by just disposing his properties. And if he donated
all his properties and those donations are not brought back
he can effectively diminish the legitimes.
GR: A party's contractual rights and obligations are

transmissible to the successors.
1.
contracted in
qualifications.
Like marital rights and obligations, or the obligation

to give support. These are extinguished by the
death of the spouse or the one obliged to give
support respectively.
3.
Intuitu personae as discussed in the case of

Genato vs. Bayhon.
4.
When the obligation is contracted in

consideration of its performance by a specific
persona and no other.
Like a contract for a piece of work. You contracted
with A, a very famous painter and you want him to
paint your portrait. And before A could finish the
painting, he died. So you cannot compel the heirs to
finish the portrait because that obligation is
So the rights that are transmitted by succession are

the rights of the decedent. The rights of the heirs are
not transmitted but made effective.
As a consequence of that, example, the decedent died in
year 2000. He did not leave a will. And then he left several
properties but the heirs executed an extrajudicial partition
only in 2001. When did the ownership of the heirs start? It is
upon death. It is not the partition that transferred the
ownership. If there is a will it is not the probate of the will
that transfers ownership and delivery does not transfer
ownership. It is succession that transferred ownership.
In contracts, there will only be transfer of ownership upon
delivery. But in succession, it is not delivery that
transfers ownership; it is death by operation of law.
estate subject only to the limitation set forth in Art. 750, Civil
Code. The limitation is that she remains sufficient property to
support herself during her lifetime.
1.
Irreversible cessation of circulatory and respiratory

functions or the irreversible cessation of all functions of
the entire brain, including the brain stem (RA7170 organ
donation act)
Felipe vs. Aldon

The wife sold properties belonging to the conjugal
partnership and the sale was without the consent of the
husband. Under the CC the status of that contract is voidable
unlike under the Family Code, the contract is void. The
husband was not able to question the sale but the husband
died and so he was succeeded by his children. So the
children filed for the annulment of the contract of sale. One
of the grounds advanced by the defendants was that there
was already prescription because more than 30 years have
elapsed from the time of sale.
Actual death
2.
Presumed death
It is discussed in article 390 and 391 of the NCC. Death
is presumed by law.
Art. 390. 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 issue is whether or not the right of the children to

question the sale has already prescribed. The SC said no
because the right of the children to institute the action
accrued only upon the death of their father. Having only an
inchoate right or a mere expectancy during the lifetime of
their father, they could not have legally questioned the sale.
they did not have personality. SC said the childrens cause of
action accrued from the death of their father 19559 and they
had 30 years to institute it. They filed the action in 1976
which is well within the period.
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.
If you have no knowledge about his whereabouts,
after the absence of 10 years he can be presumed
dead for the purpose of opening his succession or
for the purpose of distributing his properties on the
premise that he is dead. But if he disappeared after
the age of 75 years old, an absence of five years
shall be sufficient.
Locsin vs. CA
The catalina inherited certain properties from her husband.
She also had her own properties. During her lifetime, 4 years
before her death, she made a will affirming the transfer she
had made during her lifetime. So prior to the execution of
the will she already disposed of certain properties to her
nephews and nieces and then she died. Some of the
nephews and nieces who were not given any property
questioned the donations made by catalina during her
lifetime on the ground that those donations and alienations
prejudiced their legitimes.
The issue is whether or not the nephews and nieces may
validly question the transfer or donations made by catalina
during her lifetime. The SC said no because during the
lifetime of decedent the heirs only have an inchoate right,
those donations were made by catalina during her lifetime
which are valid. Because these donations are valid, they are
already removed from her estate. What passed on to the
heirs were only the residual properties.
On the premise that the donations prejudiced their legitimes,
the SC said that catalina did not have children. So she did
not have compulsory heirs. You are only nephews and
nieces. Only compulsory heirs have legitimes which can be
prejudiced by donations made during the lifetime. Nephews
and nieces, although they are legal heirs, are not compulsory
heirs; they do not have legitimes so they could not question
those donations.
Property which Doa Catalina had transferred or conveyed to
other persons during her lifetime no longer formed part of
her estate at the time of her death to which her heirs may
lay claim. Had she died intestate, only the property that
remained in her estate at the time of her death devolved to
her legal heirs; and even if those transfers were, one and all,
treated as donations, the right arising under certain
circumstances to impugn and compel the reduction or
revocation of a decedent's gifts inter vivos does not inure to
the respondents since neither they nor the donees are
compulsory (or forced) heirs.
All that the respondents had was an expectancy that in
nowise restricted her freedom to dispose of even her entire
Ordinary presumption
Qualified or Extraordinary presumption

Art. 391. 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.
So in this case, four years is sufficient because
there is danger of death. In order for the rights to
the succession to be made effective there has to be
death so it is death that opens succession. It is
death that transfers properties rights and
obligations. It is only upon death when the rights of
the heirs to the succession vests. Upon the death of
the decedent, there will be a transfer. No need to
probate or partition.
When do we start counting the time of death?

Example: Suppose the decedent disappeared in 2000
and you waited for 10 years and he never appeared. So
in year 2010. So when is the moment of death?
It depends.
If it is ordinary presumption, we consider him dead in
2010. So there will be transmission in 2010. The value of
his estate would be the value as of 2010. So you started
to become the owner only in years 2010.
But when the disappearance with danger of death, we
invoke extraordinary presumption. Suppose he
participated in the war or there was a volcanic eruption
and after that he was not found and you waited for 4
years and still he was not found. So he disappeared in
2000 to 2004. The moment of death is the time of
disappearance, in year 2000. It is when the danger of
death happened. We could not possibly think that for
example in year 2000 there was a volcanic eruption so
the last time you saw him he was running away from the
lava and then after that you did not find him and 4 years
now he still did not appear. You cannot think na
naghingalo siya didto sa lava for 4 years. Wala na patay

na jud siya. The value of the estate would be that in
2000. Transmission of ownership happened in 2000.
That is for qualified or extraordinary presumption.
Eastern vs. Lucero
Lucero here was appointed as master of the vessel. And then

the vessel was expected to arrive in Manila on February 18
1980. It was from Hong Kong. While on voyage, captain
Lucero sent 3 messages to the head of office in manila.
First message: REGRET TO INFORM YOU ENCOUNTERED
BOISTEROUS WEATHER WITH STRONG NORTHEASTERLY WINDS
WITH GAIL FORCE CAUSING THE VESSEL ROLLING AND PITCHING
VIOLENTLY
Second message: THAT THE VESSEL WAS LABORING VIOLENTLY
AND THEY HAD TO JETTISON CARGO.
Third message: THEY NEED IMMEDIATE ASSISTANCE AND
SEAWATER WAS ENTERING INSIDE HATCH VESSEL AND THEY
WERE PREPARING TO ABANDON ANYTIME
And no more messages after that. The vessel sunk and then
insurer confirmed the loss of the vessel. Because of that, the
company started paying death benefits to the family of the
crew.
But the wife of captain Lucero refused to receive it because
according to her the contract of her husband was from
voyage to voyage and the contract will be terminated upon
the husbands arrival in manila. Because the vessel did not
yet arrive in manila, then she still continues to receive
monthly allotment, not the death benefits, even if you follow
the provision in the CC, if we based the disappearance on
danger of death we have to wait for four years before we
can presume that the person died.
SC said that it is undisputed that on February 16, 1980, the
Company received 3 radio messages from Capt. Lucero that
they were facing danger at that time. There is enough
evidence to show the circumstances of the loss and the
disappearance of the vessels crew. The foregoing facts are
sufficient to lead to a moral certainty that the vessel has
sunk and that the persons aboard had perished with it
Upon this premise, the rule of presumptive death under
article 391 paragraph 1 of the CC must yield to the rule on
preponderance of evidence. Where there are facts known
from which a rational conclusion can be made, the
presumption does not step in and the rule in preponderance
of evidence controls.
Here even if we have the rule on presumption, we have to
wait for 4 years, if there is enough evidence to show with
moral certainty that this person had already died, why should
we wait for 4 years when there is enough evidence. So the
rule on presumption should yield to preponderance of
evidence.
The rights become vested upon the death of the decedent.
Emnace vs. CA
Emnace, Tabanao and Divinagracia were business partners in
a business concern. They decided to dissolve their
partnership and pursuant to that dissolution, they executed

an agreement of partition and distribution of partnership
properties among them. However after they executed the
agreement Tabanao died. Emance, one of the partners,
failed to submit any statement as to the assets and liabilities
of the partnership and to render an accounting of the
partnership finances and also to turn over to the heirs of
Tabanao his share in the partnerships assets. The wife of
Tabanao filed an action in court to compel the distribution of
the assets of the partner and to compel the delivery to them
the share of Tabano in the partnership.
It was contended by Emnace that the spouse has no
personality to the action because she was not appointed as
administratix or executrix of the estate.
So the administrator is appointed by the court to take charge
of the estate of the decedent prior to partition. The
administrator has the right to bring actions for and on behalf
of the estate. He can also be the defendant in an action filed
against the estate. The administrator will have to preserve
the properties, pay the debts of the state, etc.
The spouse here was not appointed as aministratix therefore,
she did not have the right to institute the action
SC said pursuant to article 777, the rights are transmitted
from the moment of death, during his lifetime, tabanao
himself had the right to institute the action against emance,
when he died his rights passed on to his heirs by operation
of law. So there is no need for the spouse or any heir to be
appointed as executor or administrator before they can
institute an action for an on behalf of the estate.
If there is yet no appointed executor or administrator any
one of the heirs may institute the action for an on behalf of
the estate.
For example there is already a pending proceeding for the
appointment of an executor or administrator, still any one of
the heirs may institute action for and on behalf of the estate
as held in the case of Rioferio vs CA.
GR: If there is already an appointed executor or
administrator then it should be the executor or administrator
that should bring the action.
Exceptions: The heirs may institute the action on behalf of
the estate although there is already an appointed executor or
administrator.
1.
If the executor or administrator is unwilling or

refuses to bring the suit.
2.
When the administrator is alleged to have

participated in the act complained of and he is
made a party defendant.
July 2, 2015 (JCP)

See the provisions regarding presumptions of death like
Article 390 and 391 (above). Also this provision:
Art. 392. If the absentee appears, or without appearing his
existence is proved, he shall recover his property in the
condition in which it may be found, and the price of any
property that may have been alienated or the property
acquired therewith; but he cannot claim either fruits or rents.
(194)
The rules on presumption shall yield on preponderance of
evidence.
Now, there is also a presumption under the Rules of Court
relating to death:
Rule 131. Section 3 (kk). That if there is a doubt, as
between two or more persons who are called to succeed
10
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, they shall be considered to have died
at the same time. (5a)
Now, can the testator in his will provide that his heirs will not
inherit after 5 yrs of his death? Can he provide for that? No
because the law says the transmission occurs upon the
moment of death but under the New Civil Code:
So for the purpose of Succession, we do not have a

presumption of survivorship. It does not mean that when the
father is 80 YO at the time of the shipwreck and the son was
18, then the son survived longer than the father although
both of them died but who died first, there is no presumption
in succession.
Art. 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 20 years as provided in article 494. This
power of the testator to prohibit division applies to the
legitime.
So the rule here is, one who alleges the death of one prior to
the other, he shall prove the same, meaning there has to be
evidence presented to prove that the father died ahead of
the son or vice versa. Now, if there is no proof, there is no
sufficient evidence to prove that the father died ahead of the
son or vice versa, then, the presumption here is that they at
the same time. So what is now the consequence, if they died
at the same time? Why do we need to know? Because it
matters in Succession, for example, this is the father, this is
the son and the son is married. This is the wife of the son.
So the father has several properties. Now, if they both perish
on that shipwreck, and the father died ahead of the son,
upon the death of the father, the son inherited from the
father, assuming he inherited 10M, when the son died then
the wife also inherited this (10M) from the son. But, if the
son died ahead of the father, and then the father died
subsequently, this wife will not receive anything because she
is not an heir of her father-in-law. This will go to the legal
heirs of the Father. So it matters.
Even though forbidden by the testator, the co-ownership

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.
Also, later on when we go to Art 891, the application of

reserve troncal. It also matters who died ahead. Because if
for example the son died ahead of the other there can be no
reserve troncal. But if the father died and the son inherited it
is possible that there can be reserve troncal. Again, in the
absence of proof they are presumed to have died at the
same time and there is no succession from one to the other.
Kung sabay sila namatay walay succession between the two
of them.
(2) Legal or intestate; or
We already discuss that death opens succession and

without death there can be no succession. There is one
exception, the concept of Freak Succession.
Freak Succession because it is unusual. Here, succession
takes place at the lifetime of the supposed decedent. Freak
Succession is a succession which takes place without the
triggering effect of death, this contemplates the delivery of
presumptive legitimes prior to the death of the person who
supposed to be as such on the occasion of the annulment of
marriage and the declaration of nullity of marriage.
If you remember your PFR, when there is a decree of
annulment or declaration of nullity of marriage, one of the
pronouncements to be made by the court is the delivery of
presumptive legitimes of the children. So here, we compute
the probable value of the presumptive legitime. Why?
Because if the marriage is annulled or declared null and void
the parents could already remarry and when his parents
already his/her properties would now be merged of the new
spouse, so what happens now to the children? The law seeks
to protect the children of the prior marriage. So even before,
the marriage is declared null and void and the spouses is free
to remarry, deliver first the presumptive legitimes of the
children.
GR: There can be no succession until the death of the
decedent. Point in time to remember is the point of death.
The transfer happens upon the moment of death of the
decedent.
Unless the testator should have expressly forbidden its

partition, in which case the period of indivision shall not
exceed 20 years. But again, they already inherited, they are
already the owners only that they cannot partition yet.
TYPES OF SUCCESSION
So, there are 3 types.
Art. 778. Succession may be:
(1) Testamentary;
(3) Mixed. (n)

What do you mean by testamentary succession? It is defined
in:
Art 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)
That is very clear, there is a will.
How about legal succession? Legal succession or intestate
succession takes place when there is no will or where the will
is void. There is no exact definition of legal succession, there
is only an enumeration of what is legal succession.
Art. 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one
which has subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of
all the property belonging to the testator. In such case, legal
succession shall take place only with respect to the property
of which the testator has not disposed;
(3) If the suspensive condition attached to the institution of
heir does not happen or is not fulfilled, or if the heir dies
before the testator, or repudiates the inheritance, there
being no substitution, and no right of accretion takes place;
(4) When the heir instituted is incapable of succeeding,
except in cases provided in this Code. (912a)
How about mixed succession?
Art. 780. Mixed succession is that effected partly by will and
partly by operation of law. (n)
EXC: The concept of Freak Succession.

There is a will and there are dispositions of properties
covered by it, but those properties not covered by the will, it
11
will be disposed of by operation of law or intestate
succession. Partly by will and partly by operation of law.
So we go back to Art 779. Number 1, there should be a will.
There can be no testamentary succession without a will.
The law also says, which results from the designation of an
heir. Can there be a will, that does not designate an heir? In
cases of disinheritance. The will which mentions only
disinheritance the person disinherited will disqualified to
inherit and those qualified heirs will inherit thru legal or
intestate succession.
So it is important, that the will, will designate an heir so
there can be testamentary succession. Also, for a will to be
valid, a will must be executed in the form prescribed by law.
These are the requisites for legal succession.
If there is a will, it has to be respected. Although we are
more familiar of the principle of: If there is a will, there is a
way. (olrayt!)
If there is a will, as much as possible, it has to be given
effect. So, testamentary succession I favored over legal or
Rodriguez v. Borja
In your special proceeding the court which exercises
jurisdiction first excludes the other court.
Ruling: Testate proceeding must prevail since it will give
effect to the will of the testator. The principle is that
testamentary succession is favored over intestacy. When
there is a will, every opportunity must be exercised to know
if the will is valid so that is in the probate proceeding. If the
will is valid then every property of the testator must be
disposed in accordance with the will. But if the will turns out
to be void then the intestate proceedings will commence. So
here, it would be anomalous to proceed with the settlement
intestate when the fact that there is a will. Then again, we
should probate first then we decide. The other reason, the
Rules of Court Rule 76 , Section 3.
Court to appoint time for proving will. Notice thereof to be
published. When a will is delivered to, or a petition for the
allowance of a will is filed in, the court having jurisdiction,
such court shall fix a time and place for proving the will when
all concerned may appear to contest the allowance thereof,
and shall cause notice of such time and place to be published
3 weeks successively, previous to the time appointed, in a
newspaper of general circulation in the province.
But no newspaper publication shall be made where the
petition for probate has been filed by the testatorhimself.
So, the court can acquire jurisdiction when a will is delivered
and when a petition is filed. Now, How do you relate that to
the facts of the case? So technically speaking the probate
proceeding was instituted ahead because it was delivered on
March 4 and the intestate proceeding was instituted on
March 12.
given effect?
Ruling: Even if a portion of the will is alleged to be void it
does not follow that the entire of the will is void. If the valid
provisions can be separated from the void provisions then
give effect to the valid provisions. One principle in wills is
that when there are two interpretations the interpretation
that makes the will valid and the other makes the will void.
Which interpretation must be followed? The interpretation
which is consistent with the validity of the will must be
followed. In this case, the husband assented to the wishes of
the testatrix, hence, somehow the interpretation which gives
effect to the will of the testator must be followed.
Art. 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)
Meaning, whatever income starting from the time of death
accrues to the heir. The principle of accession applies in this
case. Properties acquired after the death of the testator
belongs to whoever owns these properties.
Art. 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)
There are two kinds of heirs:
(1) Forced heir and
(2) Voluntary heir.
A forced or compulsory heir, the testator has no choice.
Testator cannot deny legitime to his compulsory heirs.
On the other hand, voluntary heir, is when the testator is
not obliged to give. However, a compulsory heir may also be
a voluntary heir. In what sense, if a compulsory heir is given
something over and above his legitime.
Now if there is no will there is legal succession. We have the
legitimate children and descendants, legitimate parents and
ascendants, surviving spouse and illegitimate children. In
legal succession, they are called legal heirs. So, all
compulsory heirs are legal heirs. Does it follow that, all legal
heirs are compulsory heirs? No. Because legal heirs is much
broader than compulsory heirs. Aside from the 4 groups I
mentioned you have brothers and sisters, nephews and
nieces, uncles and aunts.
As the law says by virtue of a will, there can only be legatees
and devisees in testamentary succession no such term in
legal succession.
Granting for the sake of argument that the intestate

proceeding was filed ahead of the delivery of the will again it
should be testate proceeding which should prevail over
intestacy.
So how do we distinguish heirs from legatees and devisees

from the one mentioned in Art 782?
HEIRS
LEGATEES and DEVISEES
Actually, I remember this, I have a client and they were

disinherited. The will was defective. Question: they dont
want to allow the will? Under the Rule 76 Sec 3, we just
delivered to the Clerk of Court the copy of the will. Under the
Rules, the court shall fix a time and place for proving the will.
Heirs succeed by general right or

universal title to all or a fraction
or aliquot portion or share of the
estate. Meaning, you are
instituted but not specifying your
property to the universality or to
the fraction.
On the other hand legatees and

devisees succeed to specific
properties. They succeed to
particular or special title.
Balanay v. Martinez
Issue: WON the last will and testament of Leodegaria will be
I hereby institute A as my sole

heir, even if all your estate is
consists of land A is not a
12
Examples:
devisee.
The term heir exists both in
testamentary succession and
legal succession.
The term legatees and devisees

exists only in testamentary
succession.
The heir in compulsory succeeds

in inheritance regardless of the
will of the decedent.
But legatees and devisees

succeed only by reason of the
testators will.
As to heirs, the quantity cannot

be determined until after the
liquidation of the properties of
the estate.
As to the legatees and devisees

the quantity can be determined
because you are given specific
properties.
The heir represents the juridical

personality of the deceased
acquiring his property, rights
and obligations because an
inheritance of an heir is not
specified he succeeds as to the
universality he gets the
properties, rights and
obligations. He constitute the
juridical personality of the
decedent, he can institute cases
in behalf of the decedent.
As to legatees and devisees,

they cannot represent the
juridical personality because
they only succeed the properties
and rights.
So, only properties and rights,
no obligations.
Remember, they succeed as to

property, rights and obligations.
On obligations, only up to the
value of the inheritance.
If you are a compulsory heir, first, debts must be paid then

taxes, legitime is given, after legatees and devisees, then
voluntary heir.
Comparing the three, legatees and devisees is preferred over
voluntary heirs and compulsory heirs are preferred over
legatees and devisees.
Take note, that voluntary heirs can also be forced or
compulsory heirs when they are given properties over above
their legitimes.
The testator in his will says, I hereby give A one half of my

land in Calinan, Davao City. Is A an heir or devisee? He is a
devisee, because he is given a specific land.
I hereby give to A one half of my estate? Clearly, A is an
heir.
I hereby give to A my cash in Metrobank? Legatee.
I hereby institute A as my sole heir and consists only of
cash? Heir because it is not particularly stated.
CHAPTER 2. TESTAMENTARY SUCCESSION

SECTION 1. Wills
Subsection 1. - Wills in General
Art. 783. A will is an act whereby a person is permitted,

with the formalities prescribed by law, to control to a certain
DEGREE the disposition of this estate, to take effect after his
death. (667a)
Although the NCC described the will is an act, we, can also
describe he will as an instrument itself where the
testamentary dispositions of the will are embodied.
Instrument because under our jurisdiction, in order to be
valid, the will must be in writing. We have two kinds of wills:
(1) Holographic wills and
(2) Notarial or Ordinary wills.
The will may be the act or the instrument. It is important
that you should know the essential elements and
characteristics of wills.
ESSENTIAL ELEMENTS OF A WILL & TESTAMENT
Compulsory heirs can also be legatees and devisees? Yes if

they are given specific properties and then that is already
beyond their legitime. Now, what is the relevance in knowing
the distinctions? There are certain provision in the NCC
where the application or the consequence is different if you
are an heir or a legatee and devisee. One of that is:
Remember the mnemonics: PASS U C FRIDM.
Art. 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.
How about the mechanical act of drafting the will? Can that
be delegated? It depends. Because it depends on the kind of
will, if it is a notarial will, then the mechanical act of drafting
the will can be delegated. In fact, it is usually delegated to
lawyers because the formalities are complicated.
If the omitted compulsory heirs should die before the

testator, the institution shall be effectual, without prejudice
to the right of representation. (814a)
This is the concept of preterition. If you are a voluntary heir
there is preterition, you will not receive anything. In
preterition, if a compulsory heir in the direct line is omitted in
the will and in the inheritance, the consequence of that
would be the institution of heirs in the will shall be annulled.
The property will be distributed in legal succession. Also:
Art. 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)
This only applies to legatee and devisee. So those are the
reasons why we have to know the distinctions.
P PERSONAL. Testamentary power cannot be delegated.

When you make a will, that will should embody your last
wishes. There are also certain acts that cannot be delegated
by the testator to another person like the determination of
WON the will shall be effective.
When it comes to holographic will, even the mechanical act

of drafting the will cannot be delegated because it should be
entirely handwritten, dated and signed by the testator. So,
dili pwede I-delegate.
Another consequence that the will is personal is that the
content of the will is confidential that is why the lawyer is not
required to retain a copy of the will or to submit the will to
the clerk of court.
A ANIMUS TESTANDI. There must be an intent to make
a will. So the testator must understand that this is my last
will and testament that the consequence of my disposition of
my property upon my death. This will take effect upon death
of testator. One of the essential qualifications of the testator
is that he must have a sound mind because how can you
have animus testandi if you do not have a sound mind. That
is why also, only natural persons can execute wills because
corporations cannot have animus testandi.
13
Montinola v. Herbosa
Obviously when Rizal made the poem he is not
contemplating on making a will because there was no animus
testandi. It can be considered a will in a grammatical sense
but not in a legal or juridical sense.
July 9, 2015 (AS)
S STATUTORY. When you say statutory it means that this
is a creation of a statute. You do not have the inherent right
to execute wills.
In the Philippines, people who are qualified can execute wills
because we have the Civil Code. Without it, you cannot insist
that you dispose of your property mortis causa. There are
also countries where their citizens cannot execute wills
simply because they have withheld the privilege to execute
wills.
S SOLEMN. The execution of wills is attended by several
solemnities or formalities. As a general rule, failure to comply
with these solemnities will invalidate the will.
U UNILATERAL. A testator cannot condition the making
of the will upon the consent, act or approval of another. It
must be the testators own will or volition as opposed to a
bilateral disposition which would only be valid when two
persons come to an agreement. In fact because of this
characteristic there are certain provisions that cannot be
inserted in the last will and testament. Example: In a will the
testator provides: I hereby give to A my house and lot
provided he will also give to me his jewelry and vehicles
This is not valid because it amounts to a bilateral disposition
or what we call Disposition Captatoria. This is void
because it violates the basic characteristic of a will that it
should be unilateral.
C CAPACITY. Not every person may execute a will. For a
person to validly execute a will he must possess
testamentary capacity.
Under our jurisdiction, there are 2 requisites for testamentary
capacity:
1.
The testator must be at least 18 yrs of age; and
2.
He must be of sound mind.
F FREEDOM FROM VITIATED CONSENT. If there is

mistake, fraud, violence, intimidation, undue influence during
the execution of the will imposed or exercised upon the
testator, it is a ground for the disallowance of the will. The
testator must know exactly what he is doing. In your oblicon
the presence of vitiated consent makes the contract voidable
but in a will the presence of vitiated consent makes it void.
R REVOCABLE. The will is essentially revocable by the
testator at any time. There is no ground provided even for
the most absurd and whimsical ground the testator may
revoke his will.
The only limitation is when the testator loses soundness of
mind. If for example he made a will and subsequently he
becomes insane, the testator cannot anymore revoke his will.
Revocation just like the execution of wills requires
testamentary capacity. Animus revocandi or intent to revoke
the will is also required. One cannot have animus revocandi if
he is not of sound mind.
I INDIVIDUAL. A will must be the act of one person. You
cannot combine the wills of two or more persons that is why
in our jurisdiction joint wills are not allowed. They violate the
essential requisite that the will should be an individual will.
What is the reason why the law prohibits joint wills? Because
it violates public policy because it induces parricide. If you
have a joint will between spouses and then makita ni spouse
na daghan kaayo ug property ang isa. Sometimes the love
for wealth overpowers the love for the husband or wife so

masayo na hinuon ug kamatay ang isa. So that is the reason
why joint wills are not allowed.
D DISPOSITION OF PROPERTY. For a document to be
considered a last will and testament it should contain a
disposition of property.
There are 2 kinds of disposition:
1.
Direct disposition It is one where the testator in

his will institutes an heir and specifies what
properties or which portion of the estate goes to
that person instituted as an heir, legatee or devisee
2.
Indirect disposition Where the testator does

not specify who will receive but instead specifies
who will not receive therefore indirectly stating that
those who are not excluded will be the one who will
receive
Ex: A document containing disinheritance.
Merza v Porras and
Seangio v Reyes
In these two cases, the SC affirmed that a
document containing only disinheritance can also
be considered a will because a disinheritance is
also considered a disposition of property (although
indirect)
How about a document which only

acknowledgement of an illegitimate child?
contains
an
In a will the testator provides, A is my illegitimate child and

I hope that my relatives will treat him as their own and this
document is denominated as a last will and testament but it
does not conform to the formalities of a will.
But can this document be used as evidence to prove the
illegitimate filiation? YES. In reality this document is not a
will because there is no disposition of property. So there no
need to comply with the formalities to be valid or to be
utilized as evidence in court. In your Family Code you prove
filiation through primary and secondary evidence and a valid
last will and testament is not one of the requisites. It could
be a public record of birth or a private handwritten
instrument subscribed signed by the putative parent.
Example: I hereby appoint A as administrator to oversee my
properties and to distribute these among my heirs
Can this document be given effect even if it does not comply
with the will? YES. This document is not a will. When you
appoint an administrator you do not confer a benefit and you
do not dispose of your property. So this document is valid
even if not in the form of a will
Another example: I hereby give 1000 a month to A but the
document is not in the form of a will.
The question is, is this a will? Yes. It contains a disposition of
property. Is it valid? No, because as Ive said it does not
follow the formalities.
Vitug v CA
In this case, the subject of the survivorship agreement was
their conjugal funds of the spouses. In a last will and
testament you should be disposing of your own separate
property in favor of the other but here they merely agreed
how to dispose of their joint account. The SC said that this is
not a will. The will must purport give to ones separate
property in favor of another.
14
M MORTIS CAUSA. The transfer of ownership becomes
effective upon the death of the testator.
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)
Can you delegate to a third person the mechanical act of
drafting a will?
It depends kung unsang klase nga will. If it is a notarial will,
yes it can be delegated. But if it is a holographic will it
cannot be delegated since it must be entirely dated, written
and signed by the testator
Castaeda v Alemany
Art 786
Art 785
The heirs, legatees or devisees

are not named
The heirs, legatees or devisees

are referred to by name in the
will
There is a class or cause

specified
There is no class or cause
What the 3rd person does is to

determine the persons,
institutions or establishments
It is the 3rd person who

determines the portion to be
given
Examples:
1. I leave all my properties to the top 5 of 3-Manresa and X
will determine how much will be the share of each.
The issue was won the drafting of the will may be delegated.
Here the notarial will was typewritten in the office of the
lawyer. It does not matter.
VALID. This is under Art 786- there is naming and there is a

specified class (3-Manresa)
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)
VOID - Art 785. There is naming
This is a consequence of the characteristic of a will that it

should be personal.
What cannot be delegated under Art 785?
1.
2.
3.
The duration of the designation of the heirs,

legatees or devisees
2. I hereby give my property to Miss Bonfiacio, Mr Abapo,

Ms Bagundang and Mr Villacampa and X will determine how
much the share of each
3. I hereby leave such sum of money as X shall determine

to support the top 5 of Manresa class 2015
NOT VALID because there is no specific property. The
amount is not specified
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)
I hereby give my house and lot to A, B and C and

they will use it alternately but the duration of use of
each shall be decided by X. The decision as to
duration of the designation cannot be delegated
This almost the same as Art 785. Here again a 3rd peson has
to det won the test disposition is operative. This is not
allowed because it violate the personal characteristic
The efficacy of the designation of heirs,

legatees or devisees. You cannot say, I hereby
institute A, B and C as heirs but subject to the
approval of Y It appears na si Y na karon ang magbuot. It should be within the discretion of the
testator.
Article 788. If a testamentary disposition admits of different

interpretations, in case of doubt, that interpretation by which
The determination of the portions which the

heir, legatee or devisee shall take when to
referred to by name. I give my money to X, Y
and Z and P will determine how will each get This
should not be done.
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)
This is an allowable designation.
In here, the testator entrusts to a third person:
1)
The distribution of specific property or sums

of money
2)
He left that in general to specified classes or

causes
3)
The designation of the persons, institutions or

establishments to whom such property or
sums of money are to be given or applied
the disposition is to be operative shall be preferred. (n)

We have to remember the basic principle: Testacy is
favored over intestacy.
If there are 2 interpretations for a testamentary disposition,
in case of doubt, that interpretation by which the disposition
is to operative shall be preferred.
In other words the will should be liberally construed in favor
of its validity.
Dizon Rivera v Dizon
The words I bequeath gave rise to the confusion. Devisee
I devise Legatee I bequeath When you say bequest it
means you are giving your property from the free portion. In
here because the testatrix used the words I bequ then she
must have referred only to the free portion the SC said no.
Vde de Villanueva v Juico
The issue here is how to interpret that provision in the will of
the testator. He bequeathed in favor of his wife properties
for her use and under the condition that he should not
marry. Intention was to vest only with usufruct.
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)
15
This only applies in case of doubt. So in case of doubt then
we follow that interpretation which is consistent with the
validity of the will.
2)
Imperfect description of the property given.

Ex: My 10 hectare land in Calinan pero pagtanaw nimo 1 hectare ra diay.
But if there is no doubt, when the language of the law is

clear, the of course as what you have learned in statutory
construction, you have to apply the provisions of the will
based on its wordings. Literal interpretation. Even if the
disposition seems unfair as long as it is legal then you have
to follow it.
3)
When two or more persons meet the

description. Ex: To my best friend Juan dela
Cruz Pagpangita nimo karon kay Juan dela Cruz
daghan diay nag-claim. So kinsa man diha sa
For example: The testator died without compulsory heirs. He

has brothers and sisters but he gave all his property to his
maid. Can the brothers and sister complain? NO, because it
is not illegal to deprive your brothers and sisters since they
are not your compulsory heirs. So we have to give effect to
the will as it is when there is no doubt. But if there is doubt,
dira lang ta mag-interpret.
For example in his will the testator said, I hereby give to my
beautiful sister of my properties.And then it turns out
nga si sister by normal standards of ordinary men na
rational, dili siya beautiful. So mu-oppose ka? The property
should not be given to A because according to the testator A
is beautiful and as you can see your Honor, res ipsa loquitor
Pwede ba na siya? YES. Malay nimo sa testator siya na
ang pinakagwapa diba? So that will must be given effect.
Ang beautiful diha it can be considered as a description pero
dili siya condition because when it is imposed as a condition,
pwede na na siya i-contest.
Like If A turns out to be beautiful by common standards,
then I would give her my property. In this case, the
interpretation is that the condition has to be fulfilled first
before A can inherit. But if it is merely description, the
underlying reason in testamentary succession is the
generosity or liberality of the testator. So even if the
description turns out to be false or wrong, you must still give
effect to the testamentary disposition.
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)
KINDS OF AMBIGUITIES
A.
Latent or Intrinsic It is an ambiguity or defect that

does not appear in the face of the will.
By reading the will, you will not know that it suffers from
a defect or ambiguity. You only discover the ambiguity
when you start looking for the persons mentioned in the
will or the properties disposed of.
Ex: I hereby give to Juan dela Cruz, my bestfriend, of
my estate. Wala may mali diha when you read the will.
Upon the death of the testator you start looking for Juan
but wala kay nakita na bestfriend nga Juan dela Cruz
ang pangalan. So now there is the ambiguity kinsa
man ni si Juan dela Cruz? No person actually answers
the description.
Four kinds of latent or intrinsic ambiguity:
1)
Imperfect description of the heir, legatee or

devisee. Ex: My beautiful sister sa will okay
lang pero pag-tanaw nimo sa tinuod lahi ra diay.
ilahang tanan?
4)
B.
When two
description
or
more
things
meet
the
Patent or Extrinsic This is an ambiguity that is

apparent on the face of the will itself.
Ex: I hereby leave to some of my students my house
and lot in Calinan, Davao City. Here you are not sure
kung pila man ang some 2? 3? There is now an
apparent ambiguity.
REMEDIES TO THE AMBIGUITIES

Whether it is extrinsic or intrinsic ambiguity, we can use the
same kind of evidence.
1.
Intrinsic evidence Evidence which is found in the

will itself
Ex: To my best friend Juan dela Cruz
Later on in the other portions of the will, the testator
described the physical attributes of Juan dela Cruz. Unya
naka-state didto na kauban sila from preschool until law
school. So there is sufficient description for you to
determine who Juan dela Cruz is.
2.
Extrinsic evidence or evidence aliunde Evidence

that is not found in the will
Ex: To my best friend Juan dela Crus
Walay anything in the will that would help us determine
who Juan dela Cruz is but during his lifetime the testator
made several letters to Juan dela Cruz himself promising
him that he will give his house and lot to the later when
he dies. Those letters can be used to resolve the
ambiguity. Bisan pa na dili Juan dela Cruz iyang
pangalan pero si testator siya to ang gina-refer. She is
actually Joan dela Cruz but wrong spelling lang diay si
testator sa last will. In this case, the letters are extrinsic
evidence.
Can we use oral or parole evidence to cure an extrinsic or

intrinsic ambiguity in the will? YES. We can use oral or parole
evidence. What Art 789 prohibits is oral evidence as to the
declarations of the testator as to his intention.
Ex. You cannot present a person to testify and what would
be the nature of the testimony Actually according to the
testator ako daw na si Juan dela Cruz. Sa ako daw na niya
gina-hatag ang house and lot in Calinan. He told me that
during one of our conversations Can we accept that kind of
evidence? NO because how can we confirm whether or not
the testator indeed made such a declaration? We cannot ask
him because he is dead. This is not allowed.
But when you say oral evidence like diba nakabutang sa will
na kauban si testator ug si Juan dela Cruz from preschool
until law school, so naay mag-testify karon nga classmate
niya si testator ug si Joan dela Cruz during preschool. So
nag-testify siya as to that fact and not as to the supposed
oral declarations of the testator as to his intentions. Kani siya
is still oral evidence but it is not prohibited. This is also
covered by the Rules of Court on the Parole Evidence Rule:
Rule 130. Sec. 9 Evidence of written agreements.
When the terms of an agreement have been reduced to
16
writing, it is considered as containing all the terms agreed
upon and there can be, between the parties and their
successors in interest, no evidence of such terms other than
the contents of the written agreement.
with such technical sense. (675a)
However, a party may present evidence to modify, explain or

add to the terms of written agreement if he puts in issue in
his pleading:
General rule: Ordinary terms are to be given their

ordinary meaning. Technical terms are to be given
their technical meaning.
(a) An intrinsic ambiguity, mistake or imperfection in the

written agreement;
(b) The failure of the written agreement to express the true
intent and agreement of the parties thereto;
Ex: When you say I give to you a chair then that is a chair.
When you say adopted that is a technical term so you
understand it in the technical sense one that has
undergone an adoption proceeding.
(c) The validity of the written agreement; or
Exceptions:
(d) The existence of other terms agreed to by the parties or

their successors in interest after the execution of the written
agreement.
a.
Under Art 790, you have ordinary and technical terms used
in the will.
Ex: The testator bequeathed to A my bed. Pero ang

testator ang ginagamit diay niya as bed is a table na
gold. Wala na siyay lain bed ha katong table ra gyud. In
this case what is the intention of the testator? The
testator wants to give to A his gold table.
The term "agreement" includes wills. (7a)

So GR under the parole evidence rule when there is an
agreement and it is already in writing, you cannot modify the
terms of the written agreement by oral evidence. You cannot
later on present oral evidence to vary the tenor of the
written agreement.
The last paragraph states: The term "agreement" includes
wills. This means that you really can use oral evidence as
long as it is not in relation to the supposed intention of the
testator.
In your Obligations and Contracts, there is the remedy of
reformation. If there is a meeting of the minds between the
parties but the agreement is not written so as to reflect their
true intention, you can avail of reformation. For example
they merely agreed on a mortgage but the document is a
pacto de retro sale. So you can have that document
reformed to express the true agreement.
Is reformation also available to cure a defect on the will? No.
Basis: Art 1366.
Article 1366. There shall be no reformation in the ff:
(1) Simple donations inter vivos wherein no condition is
imposed;
(2) Wills;
(3) When the real agreement is void.
In reformation, the first step that would happen is you ask
the party like Hoy A, mali man diay ni atong agreement.
Dapat mortgage pero sale man ni! Walay problema kung
mu-ingon si A na Ay tama diay. Usabon nato. Pero kung
mu-ingon si A na Dili uy sale na na siya. Di na ko musugot
ug reformation. Then this is the time that you file for
reformation. How do you apply this in case of wills? Nagpromise si testator I will give to you 10 hectares of my land
in Davao City. but in the will 1 hectare lang ang
nakabutang. Can you file an action for reformation against
the testator? NO YOU CANNOT. In fact the testator may
even revoke the will. Wala na hinuon kay madawat. The
same rationale applies in case of donations because these
are acts of liberality.
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
Ordinary terms are not given their ordinary

meaning when it is clear that there is an intention
to give it another meaning
b.
Technical terms are not given their technical

meaning when:
1.
There is a contrary intention
2.
The testator prepared the will by himself and

it is clear that he is unacquainted with the
technical meaning of the terms
Just like in the case which we discussed before, the term

used was I bequeath. When you say bequeath that is
a technical term. You are referring here to a legacy
which is taken from the free portion. But as we already
discussed the intention of the testator in the case was to
give them not only the free portion but his properties.
So here, the technical term is given a different meaning.
Another example is the use of the word adopted. Ang
nag-buhat sa last will kay tigulang na. He made an will
and left all his properties to his adopted son and kana
siya wala siya naka-law school of course wala siyay
idea kung unsa ng adoption. Diba sa barrio basta imong
gi-sagop, adopted na na siya. Here, the testator is
layman and is he is unacquainted with the technical
meaning of that word. How do we interpret the word
adopted? Use it in its ordinary sense.
In this case when we have to interpret, we
ascertain what is the intention of the testator. We
have to place ourselves in the circumstances of the
testator. At this point in time, under this kind of
scenario, what would have been the intention of the
testator?
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)
We can divide Art 791 into two parts:
1. The will must be interpreted as a whole
2. Testacy is favored over intestacy
You can also relate this to the case of Rodriguez vs. Borja.
Katong case na gi-deliver ang copy sa will March 4 and then
gi-withdraw and then March 12, 8 AM nag-file siya ug
petition for settlement of intestate estate in Bulacan. 12NN
on the same day naay nag-file ug petition for probate in
Rizal. So asa sa duha ang mag-prevail? We already know
17
that it should be the probate proceeding. Testacy is favored
over intestacy.
No. That would only be limited to that which exists at the

time of the execution of the will and anything added will not
be included. This is the general rule.
Yambao v Gonzales
It cannot apply to an inheritance because if it is an

inheritance, the heir is instituted to an aliquot share, a
fraction, a portion, an ideal share.
Here the SC was confronted with the question of how to

interpret a disposition whether it was mandatory or merely
discretionary because of the word pahintulutan. The SC
interpreted the will as a whole and interpreted the word
pahintulutan in conjunction with the preceeding word
tungkulin o dapat gampanan.
Finally the SC said that it was not within the discretion of the
heirs whether or not they would allow the tenant to stay.
They have the duty to do so.
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)
We actually already discussed this in the case of Balanay vs.
Martinez that even if some dispositions are not valid, they
entire will is not invalidated if you can separate the void
provisions from the valid ones.
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)
Problem: If the testator says, I hereby institute to A, of

my estate. So A is an heir. For example, the value of the
estate at the time of the will is P1Million and the will is
executed in 2005 and of which is P250K. Assuming the
testator died in 2010 and the value of the property at time is
already P2Million, how much will be the share of A? Having
instituted with only of the estate, is it only P250K ( of
P1M) or P500K ( of P2Million)?
As an heir, he steps into the shoes of the decedent or
testator. He represents the juridical personality of the
testator acquiring his rights, properties and obligations. So,
he cannot be limited to a certain property. In that case, the
value of the inheritance will be the value or amount at the
time of death. So, he receives P500K ( of P2Million). This is
the difference between a legacy/devise or an inheritance.
The legacy or devise is covered by Article 793 and
inheritance is not since in the latter, you are instituted to the
universality or the aliquot share, a fraction, a portion, an
ideal share etc and it is not covered by Article 793.
The following are the EXCEPTIONS to Article 793:

1.
From the article itself: When it expressly appears in

the will that the intention of the testator is to
give to such legatee or devisee the addition. If he
provided in the will that I hereby give to A my lot in
Calinan, Davao City and all accretion, addition, etc that
likewise pertain to it. In this case, there is an express
intention appearing in the will.
2.
Article 836: The execution of a codicil referring to a

previous will has the effect of republishing the
will as modified by the codicil.
3.
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.
4.
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 acquaintance,
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.
If you still remember our discussion under Article 781 about

after-acquired properties, Art 793 speaks of properties
acquired AFTER THE EXECUTION OF THE WILL.
The meaning of Art 793 is that if there is a legacy or devise
given then the legacy or devise covers only the properties
existing at the time of the will. Anything which is added to
that legacy or devise after the execution of the will but
before the death of the testator, those are not included.
Ex: The testator devised to A his 5 hectares of land in
Calinan. He made the will in 2000. In year 2004, nag-flood
and then naay accretion so 6 hectares na karon. If you
remember in your Property, to the owner of the land belongs
the accretion. Pagkamatay ni testator how much ang maclaim ni A? 5 hectares only.
Art 793 applies only to a legacy or devise. It does not apply
to a inheritance.
July 16, 2015 (RJV)
As already discussed before, Article 793 is another concept of
after acquired properties. We are speaking here of properties
acquired after the execution of the will but before the death
of the decedent or the testator. The rule is-the property
acquired after the execution of the will shall not be included
in the devise or legacy. I already gave the accretion
example. This article only applies to legacies and devices.
Even if the article itself is cited and you cannot see any
references to a legacy or device, but, this should apply only
to a legacy or devise. So, if you are given a certain property,
anything which is added in that property will not be included
in your legacy or devise.
Problem: I hereby give to my cash in HSBC. The will is
executed in 2005 and in that time, the cash is P100K.
Assuming there are additional deposits worth P100K in that
account and the testator died in 2010 having P200K all. At
the time of the death of the testator, how much can the
legatee claim? Can he claim the P200K because the testator
says "my cash in HSBC" which is now P200K?
(Note: The other exceptions will be explained as we go on

with this subject)
We already mentioned about Article 781 which is another
concept of after-acquired properties. It provides:
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.
Distinctions of Article 781 and Article 793:
18
In Article 781, properties which are added to or accrue after
the death of the decedent are included in the inheritance,
device or legacy. It speaks of addition after the death of the
testator. Upon death, ownership is already passed on to the
heir, devisee or legatee. Being the owner, whatever accrues
or added to the property by rights of accession also or those
which are added to or incorporated.
Here, the law states every devise or legacy. Does this also
apply to an inheritance? Yes because when you inherent
something, you inherent everything that the testator had in
the property.
Exceptions:
1.
Unless it clearly appears from the will that he

intended to convey a less interest; Even if the
testator owns the entire land, he can just provide in the
will that he is giving, for instance, to the legatee or
devisee. Here, there is a clear intention to convey a
lesser interest. So he can convey a lesser interest.
2.
He can also convey a greater interest (Article 931);

For example, he owned only of the land in Calinan,
Davao City but in his will, he is giving the entire land.
Can he do that? Yes as long as he indicates in his will,
for instances, he put that he only own of the interest
in the land in Calinan, Davao City but he is giving the
entire land to A.
On the other hand, in Article 793, properties, existing or

added to after the execution of the will, are not part of the
legatee or devise.
Problem:
The testator owns a building which was leased to third
parties. In 2010, the testator executed a will giving or
devising to A the building, so there are rentals (income). In
2012, the testator died. Prior to his death, there are unpaid 1
year rentals. Take note, after his death, the building will be
given to A. From the time of death of the testator, ownership
will be vested to A as devisee.
Since the building was being rented, can A eject those who
are renting? No, due to the transmissibility of obligations, in
which case, he acquires the obligation to respect the lease.
So, he cannot eject except for other compelling reasons.
In this case, it is very clear that he is giving the entire

land to A. So how can he give the entire land when he
only owns ? There is now an implied instruction to the
estate that upon the death of the testator, the estate
will acquire the remaining interest from the other
owners and the balance will be given to the devisee.
Problem: He did not eject and there were not-paying renters

for 1 year and after the death of the testator, A owns the
building. Even giving a grace period, still, the renters failed
to pay for another 1 year after the death. But later on, they
were able to pay in cash worth P2 Million, good for 2 years.
Who is entitled to the rentals? Take note that the rentals
were paid 1 year after the death of the testator but those
rentals were due during the lifetime or before the death of
the testator and other were due after the death of the
testator. Will A own it all or he receives nothing?
In this case, we need to make a distinction. With respect to
the rentals which accrued during the lifetime of the testator,
Article 793 is applicable and these are not included in the
devise. These are incomes which accrue after the execution
of the will, during the lifetime or before the death of the
testator. As such, these shall accrue to the estate of the
testator since it is not indicated in the will that the same will
be given to his legal heirs. Now with respect to the rentals
which accrued after the death of the testator, the rentals will
pertain to the devisee because at the time of death, A
becomes the owner of the building and whatever accrues
therefrom will be received by the owner, not only the 1 year
but all incomes starting from the time of death. The latter
case is the application of Article 781.
Article 794. Every devise or legacy shall cover all the interest
which the testator could device or bequeath in the property
disposed of, unless it clearly appears from the will that he
intended to convey a less interest. (n)
Here, the law presumes that if you give to A the land, you
are giving to him all your interest to the land. If you are the
owner of the land and you will just mention that I hereby
give to A my land, then, you are giving your entire land to A
as the provisions says, all the interest which the testator
could device or bequeath in the property disposed of.
Problem: The testator only owns of the land. In his will,
he states that I hereby give to A my land in Calinan, Davao
City. The land consists of 10 hectares but the testator owns
only a half of it. How much can a devisee claim upon the
death of the testator?
General Rule: only that which belongs to the testator so all
the interest which the testator could have over the property
which is only .
What if the remaining owners refuse to sell their shares

or if they are willing to sell, they are demanding for an
excessive price, what is now the obligation of the
estate? The obligation of the estate is to give to the
devisee the just value of the land. Take note, the
testator knows that he does not own the entire property,
but despite that, he still give it. Here, there is an implied
instruction.
3.
The testator can even convey properties which he

knows, did not belong to him (Article 930 and 931)
by ordering that the property will be purchased
and be given to the legatee our devisee. Even
though he does not own the property, he can convey as
long as during the disposition, he knows that he is not
the owner but despite that, he still give property to the
devisee or legatee. How can it be given when he was
not the owner at the time of making his will and even at
the time of his death? How can that be made effective?
Again, there must be an instruction to the estate to
acquire the properties and give the same to the devisee.
The same thing also if the owners refuse to part the
property or demand excessive price, in which case, you
just give to the devisee the just value of the thing.
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)
When you say validity of the will as to its form, what kind of
validity are we talking about here? Extrinsic validity
which means the formalities in the execution of wills
depending of the kind of will.
What are the two kinds of validity of wills? Extrinsic and
intrinsic validity.
Intrinsic validity refers to the substance of the will or
legality of the provisions in the instrument or will.
Question falls under the intrinsic validity:
If there are omitted heirs in the will;
Whether or not certain heirs are qualified to inherit;
Whether or not there is valid disinheritance;
Distribution, liquidation, etc of properties
19
How can you explain Article 795? The formalities or
solemnities of a will depend on the law in force at the time of
the execution of the same and not at the time of the death
of the testator or even of the date of probate. Example is
when a testator made a holographic will during the time that
it is not yet recognized or allowed, since the law at the time
of its execution disallows it, the said will is void.
(A) FORMAL OR EXTRINSIC VALIDITY

When we talked about extrinsic validity, we have two
viewpoints: as to time and as to place or country. Now,
Article 795 refers to the extrinsic validity from the viewpoint
of time.
1) FROM THE VIEWPOINT OF TIME
When the will made, how do we know that it is valid as
to form? The law says, it depends upon the law enforced
at the time of the execution of the will.
Reasons to Comply with the Formalities: Why is it
reckoned based on the law enforced at the time of the
execution of the will?
The testator cannot possibly predict what laws shall

govern the future so it is sufficient that he follows
the law enforced at the time of the execution of the
will; and
The formalities are intended to prevent fraud,

perjury, vitiated consent, etc in the execution of the
will since these (fraud, perjury, vitiated consent) are
present at the time of the execution.
ENRIQUEZ vs ABADIA
In this case, it is noted that before the New Civil
(effective only in 1950), holographic wills are not
allowed. Here, the testator made a holographic will in
1923 at the time where it is not yet recognized. The
testator died (before effectivity of New Civil Code) but
his will was probated after the effectivity of the New
Civil Code. Can the will be probated considering that at
the time of probate, holographic wills are already
allowed? So the answer is on Article 795. If the testator
complies with the law enforced at the time of the
execution of the will as to form, then the will is valid,
otherwise, the will is void as to form. Here, when he
made the will, holographic wills are not yet recognized,
therefore, making it void. It remained to be void
notwithstanding the fact that when the will is
presented on probate, holographic wills are already
recognized. A void will remains to be void and
Congress cannot validate a void will. By passing a law,
Congress cannot validate a void will (which is void at
the time of its execution).
2) FROM THE
COUNTRY
VIEWPOINT
We have discussed that extrinsic validity can be viewed

on the viewpoint of time. To determine whether or not
the will is valid as to form, the testator must comply with
the law enforced at the time of the execution of the will.
PLACE
OR
This view pertains as to where the testator executes the

will because the testator may execute the will here in
the Philippines or abroad. This answers what law will
govern if he makes a will abroad or if the testator is a
foreigner since these are dependent on where he
executed the will. Here, you should consider who is the
testator and where did he make the will. If you are
asked, what laws govern the extrinsic validity of the will?
You do not answer Article 795 since it also speaks of
extrinsic validity from the viewpoint of time.
In extrinsic validity from the viewpoint of place or
country, we have several laws that govern:
(i)
Article 17 of the New Civil Code: Law of the

Place of Execution
Article 17. 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)
Testator
Place of
Execution
Philippine Laws
according to Article 17
of NCC, Par 1: Law of
the place of execution
(Lex Loci
Celebrationis)
Abroad
Philippine Laws
of NCC, Par 2.
(before
diplomatic or
consular office
of the
Philippines)
FIL
Abroad
(NOT before
diplomatic or
consular office
of the
Philippines
Alien
Governing Law
Philippines
Abaja case
When Abaja made his will, it is governed by the old law
(old Civil Code) and the same does not require
acknowledgment. Thus, even if his will is not
acknowledged, the will is still valid as the validity of the
will depends upon the law enforced at the time of its
execution (Article 795). Even when he died and the
New Civil Code requiring acknowledgment took effect,
it does not invalidate the will which was already valid.
The principle here is that the legislature cannot
invalidate a valid will.
OF
Abroad
Reason: Diplomatic or
consular offices are
considered as
extended territories
so by fiction of law,
the will is deemed
made in the
Philippines even if
abroad.
Philippine Laws
of NCC, Par 1: Law of
the place of execution
(Lex Loci
Celebrationis)
Example: A Filipino
executing will which is
valid in US, it is also
valid in the
Philippines.
Laws of the place of
execution according
to Article 17 of NCC,
20
Par 1: (Lex Loci
Celebrationis)
of his own country, shall have the same effect

as if executed according to the laws of the
Philippines. (n)
(ii) Article 815 of the New Civil Code: Filipino

in a Foreign Country Executing his Will Abroad
If a foreigner testator executing his will in the

Philippines, the following laws shall govern:
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)
The law says the law of the place where he
may be. Essentially, it is the same with Article
17 since the place he may be is the place of
execution. You cannot separate the two like
you are in the US and you are executing the
will in Singapore. It is physically impossible.
Take note that Article 815 uses the word
authorized. This implies that there is another
law which he has to follow as a general rule but
he is also authorized to follow the law of the
place which he may be. The law which he has
to follow as a general rule is the Philippine law
since we are talking about a Filipino but he is
also allowed to follow the law of the place
which he may be.
If we have a Filipino testator executing his will
abroad, the following laws govern as to the
extrinsic validity from the viewpoint of place or
country:
1.
Law of the place of execution (A17)
2.
Law of the place where he may be (A815)
3.
Philippine laws (general rule)
(iii) Article 816 of the New Civil Code: Alien

Testator Executing his Will Abroad
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)
If we have a foreigner-testator executing his
will abroad, the following laws shall govern:
1.
Law of the place of execution (A17)
2.
Law of the place of residence (A816)
3.
Law of his country or nationality (A816)
4.
Philippine laws (Civil Code)
Example: You are a resident of Japan but you

are a US Citizen making a will in Africa. What
laws should you apply? The law of the place of
execution which is Africa, the law of the place
of residence which is Japan, the law of his
country or nationality which is USA and the
Philippine laws.
(iv) Article 817: Alien Testator Executing his Will
in the Philippines
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
1.
Law of the Place of Execution (A17)
2.
Law of his Country of Nationality (A817)
Under this article, in executing a will, he may

comply with the formalities the law of the
country of which he is a citizen and the said will
is valid as to form here in the Philippines.
(B) INTRINSIC VALIDITY

Like the extrinsic validity, intrinsic validity can be viewed
from the viewpoint of time and place or country.
1.
FROM THE VIEWPOINT OF TIME

a)
Article 774 of the NCC

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.
b)
Article 2263 of the NCC

Article 2263. 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.
Based on Article 2263, what law governs the
intrinsic validity of will as to the viewpoint of
time? If a person dies, whether with or without
a will, before the effectivity of the NCC, then,
succession shall be governed by the law before
the NCC. If he died after the effectivity of the
NCC, then, the estate shall be adjudicated and
distributed in accordance with the NCC. Thus,
the law governs is the law exists at the time of
the death.
When we say intrinsic validity, we are dealing with the

substance and legality of the provisions of the will as these
provisions provide for the disposition of properties, who are
the heirs, what properties are to be given, etc or basically,
the transfer of properties to the heirs, legatees or devisees
and the transfer will happen only upon death. That is why it
is the time of death is the reckoning point because
that is only when the transfer happens and the
vesting of rights to the heirs.
21
Problem: Assuming that the testator made a will in 1940 and
in his will, he omitted his illegitimate child. Under the old Civil
Code, there is no recognition of successional rights of
illegitimate children but under the NCC, illegitimate children
are already recognized. Under the NCC, the omission is
allowed (called Preterition).
Is that will intrinsically valid? Considering that the law applies
is the existing law at the time of the testators death, if he
died before the effectivity of NCC, the will is intrinsically
valid. But if he died after the effectivity of the NCC in which
the omission is not allowed, the will is not intrinsically valid.
You have to consider the time of death. Even if the will is
made in 1920 before the effectivity of NCC when preterition
is not allowed, it does not matter because we are talking
about intrinsic validity and the reckoning point is the time of
death.
2.
FROM THE
COUNTRY
VIEWPOINT
OF
PLACE
OR
Article 16. Real property as well as personal

property is subject to the law of the country where
it is stipulated.
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)
The first paragraph speaks of the general rule so if
you have real property and personal property, these
are subject to the law of the place where is its
situated.
st
GR: 1 Paragraph of Article 16 (Lex Situs rule)

EXC: 2
nd
the law which is Article 16 which clearly provides that the

national law of the decedent should be followed.
If you remember Par 3 Article 17 of the NCC, 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. The system of legitimes is
a matter of public policy here in the Philippines so if you
disregard the provision under out laws on legitimes, it is
tantamount to disregarding our public policy and good
customs involved in that provision. How can we reconcile
that in this case? Whatever public policy and good customs
involved in our system of legitimes clearly by providing under
Article 16 that the national law of testator shall apply, the
Congress does not extend such rule to succession as far as
the properties of foreign nationals.
Specific provisions shall prevail over general provisions.
Article 17 is a general provision and Article 16 is a specific
provision.
LLORENTE vs CA
Here the decedent was a Filipino but became an American
citizen. Again, he made a will and died. At the time of his
death, he is already a foreigner. What law shall govern?
Applying Article 16, the national law of the decedent.
PCIB vs ESCOLIN
The law which should govern is the Texas law which is the
national law of the testator. How do we know the contents of
the foreign law? Does our court take judicial notice of their
laws? No. The court does not take judicial notice and the
court should ask the person invoking the said law to allege
and prove the said foreign law.
What are the exceptions?
1.
When our courts have actual knowledge of foreign

laws; and
2.
When it was ruled upon in other cases by the court

and none of the parties prove otherwise.
Paragraph of Article 16
The exception is the intestate and testamentary

succession with respect to:
1.
Order of succession;
2.
Amount of successional rights; and
3.
Intrinsic
validity
provisions.
MICIANO vs BRIMO
of
testamentary
In which case, the law which regulates or applies is

the national law of the decedent or the testator.
Whether the provisions of the will are valid, we will
examine his national law. It is much easier because
we will only consider his national law.
BELLIS vs BELLIS
A Texas resident executed a will in the Philippines disposing
his properties in the Philippines. The question is whether or
not the will is intrinsically valid (will deprives legitimes to
illegitimate children which in Philippine jurisdiction is not
valid). The Court said yes applying the national law of the
testator who is a citizen and resident of Texas. The Texas
law does not observe successional claims of illegitimate
children.
What if it is provided in the will of the testator that the
disposition of the properties is subject to Philippine laws? Is
it valid?
Under Philippine laws, the national law of the person whose
succession is under consideration shall apply. So that
provision should not be followed since it will be contrary to
In the partition made by the testator in his will, there was an

opposition alleging that the said partition is not in accordance
with the Turkish Laws. Further, it was alleged that the
Turkish law should be applied considering that the testator is
a Turkish citizen at the time of his death. However, the laws
of Turkey were not presented in court. Thus, the doctrine
of processual presumption applies.
In the absence of proof of foreign [Turkish] laws, it is
presumed that it is the same with our [Philippine] laws.
In this case, the applicable law is the Philippine laws in the
absence of proof or even presentation of Turkish laws.
ANCHETA vs GUERSEY-DALAYGON
This is a disciplinary case against Atty. Ancheta. Audrey and
Richard were American citizens and the wife died leaving
substantial properties to her husband. Richard remarried in
the Philippines and left his properties in his wife in the
Philippines upon his death. Audreys will is probated in
Maryland and in that procededing, Ancheta is named as
ancillary administrator. When Richard died, the will of Audrey
(bequeathing properties to Richard) needed to be probated
in the Philippines. During the proceeding in the Philippines,
Ancheta made a project of partition and the same was
opposed by Candelaria (2nd Filipina wife) being contrary to
US laws and contravenes certain provisions in Audreys will.
22
According to Ancheta, he made the project according to
Philippine laws having no knowledge of US laws. Using the
doctrine of processual presumption, US and Philippine laws
are deemed the same absence of any proof.
Was Atty. Ancheta justified in saying that he merely
presumed that Philippine laws apply? No. First, his office was
also a participant in the US, being an ancillary administrator.
When Audreys will is probated in the US, he already knew
US laws. Second, being a senior partner in a prestigious law
firm with a large staff and legal library, he has all the
resources to determine the competent law. It is incumbent
upon him to exercise his functions as ancillary administrator
with reasonable diligence and to discharge the trust repose
against him faithfully. Unfortunately, he failed to perform his
fiduciary duties.
The Court added that how could Ancheta honestly presume
that Philippine laws apply when as early as the reprobate of
Audreys will before the trial court in 1982, it was already
brought to fore that Audrey is a US citizen, domiciled in the
State of Maryland.
Now in the case of Miciano vs. Brimo, we also learned that

the application of the doctrine of processual presumption,
although theoretically it should be the national law of the
testator (here a Turkish national), so it should have been his
national law.
We also discussed in the case of PCIB vs. Escolin, our courts
do not take judicial notice of foreign law, these foreign laws
must be alleged, pleaded, and proved like any other fact,
although there are certain exceptions. Going back to the case
of Miciano, in that case, in the absence of proof, the SC
applied the doctrine of porcessual presumption, that the laws
of Turkey are the same as the laws of the Philippines, so we
apply Philippine law.
Testate Estate of Christensen vs. Garcia
Here under the California Civil Code, the testator may
dispose of his property in any manner he desires.
TESTATE ESTATE OF SUNTAY
So in that case, our law said that it should be his national

law. But in his national law, they have two separate
provisions, the California Probate Code and the Article 946 of
California Civil Code. What will govern is Article 946 of the
Civil of California, which says the law of the domicile which is
the Philippines. But again, our law provides (Art. 16 of the
NCC) that California laws will apply, his national law.
The probated will in China cannot be reprobated in the

Philippines in the absence of proof of foreign laws [China].
The matters which will be proved are:
So what will govern? When they refer back, we no longer

back to Article 16 since it will point us to the national law of
the testator.
The Court does not apply presumption due to the

circumstances of the case.
1.
That the foreign court [in Amoy, China] is a probate

court;
2.
That the law of country and the procedure of

probate are complied with; and
3.
That legal requirement for execution of a valid will

is complied with in that country.
In the absence of proof, there is no presumption that such

foreign laws are the same with Philippine laws. Thus, the will
should be denied probate.
The doctrine of processual presumption does not apply here
since it was not proven that the Rules of Court of China is
the same with the Philippines. Unlike in Miciano vs Brimo, the
matter is on substantive law which is on the intrinsic validity
of the will. Here, the procedure and the legal requirements
are considered.
July 20, 2015 (GG)
So last meeting I think we discussed the case of Suntay. So
we are still in the intrinsic validity of wills from the view point
of place or country. Again, to review what we discussed last
time, when it comes to the intrinsic validity from the view
point of time, we reckon the law in force at the time of death
because it is when the transmission happens.
So when you say intrinsic validity, we are referring to the
legality of the provisions in the will, the contents of the will,
like whether or not the legitime of an heir has been impaired,
or when a person is qualified to inherit from the testator,
whether or not there is preterition, whether or not certain
properties are owned by the testator, questions of filiations,
so these are the matters leading to the intrinsic validity of
the will.
From the viewpoint of place or country, the law that governs
would be the national law of the testator, or the person
whose succession is under consideration. So it does not
matter if the properties are situated in Africa, in the
Philippines, China, what we look at would be the national law
of the testator.
So we go now to the internal law of the Philippines on

succession, the legitimes, the distribution of property. We do
not go back to Article 16 (which is not an internal law being
a conflict of law rule), since in that case, the SC said, the
matter will just be tossed back and forth like international
football or pingpong incapable of final determination.
So what do you call that doctrine? We call that RENVOI
DOCTRINE. Renvoi Doctrine was applied in this case, we
apply the internal law of the forum, the Philippines. So what
law was applied here is not anymore the national law of the
decedent. Even if Article 16 says that the intrinsic validity of
the will shall be governed by the national law of the
decedent, but because of the application of Renvoi Doctrine,
ultimately, it is still Philippine law that is applied.
Specifically we have Articles 887 894 of the New Civil Code,
which was applied here by the SC.
What are these 2 instances when even if Article 16 say that it
is the national law of the decedent that should govern the
intrinsic validity of the testamentary provisions but you still
apply Philippine laws?
1.
When the Renvoi Doctrine applies, as held in the case

of Christensen vs. Garcia; and
2.
When what applies is the Doctrine of Processual

Presumption as held in the case of Miciano vs. Brimo.
Okay, so that would be for the extrinsic and intrinsic validity

of wills.
Subsection 2. - Testamentary Capacity and Intent

When you say testamentary capacity, we are referring to the
qualifications, in general, of the testator to execute a will. For
a person to be qualified, there are two qualifications, which
we will discuss.
Now what about testamentary power? What does it mean?
We are referring to that grant by the State to the person to
execute the will. There is no particular definition of
23
testamentary power, actually, these two terms are used
interchangeably under the new Civil Code, but if you are to
be technical about it, there is distinction.
When you are saying testamentary capacity, you are
referring to the qualification of a person. When we speak of
testamentary power, it refers to the grant of the state.
Examples:
WITH
TESTAMENTARY
POWER
BUT
NO
TESTAMENTARY CAPACITY So if you say if a person is
of sound mind but is a minor, he does not have testamentary
capacity. So in that case, how can he have testamentary
power? Under the Civil Code, the privilege is given. So, all
persons here have testamentary power since we are covered
by the Civil Code. But even if he has testamentary power he
may not have testamentary capacity being a minor.
WITH
TESTAMENTARY
CAPACITY
BUT
NO
TESTAMENTARY POWER You be of sound mind or you
may be of age but your country does not give you the
privilege to execute wills, so you dont have testamentary
power. But again thats just the technical definition. If you
are asked to distinguish the two, you answer that. It is not
an excuse that they can be used interchangeably. But, when
we discuss testamentary capacity and testamentary power
later, they refer to one and the same thing.
Art. 796. All persons who are not expressly prohibited by
law may make a will. (662)
It gives us who can execute wills. Based on the definition,
the GR is capacity because it says all persons who are not
expressly prohibited by law, so as long as you are not
prohibited by law, you may execute wills.
The law says persons, we have 2 kinds of persons in general,
we have natural persons and juridical persons. Now when
Article 796 speaks of persons, are we referring to both kinds
of persons? No. JURIDICAL persons cannot execute wills
because they are NOT qualified. They cannot have sound
mind because they do not have physical existence. So only
natural persons can execute wills. Juridical persons cannot
be testators, but they can be heirs in testamentary
succession which we will discuss later on. Although in legal
succession, a state can also be an heir.
Art. 797. Persons of either sex under eighteen years of age
cannot make a will. (n)
It gives us the disqualification. If you are under 18 years of
age, you cannot make a will. So if you are at least 18 years
of age, you can make a will. There is no specific
requirement, like female or male, either sex.
So now let us go to the meaning of 18 years of age. There
are 3 theories in the meaning of 18 years of age:
1.
Theory under the Spanish Law the 18th

birthday should have passed or should have
commenced before one can make a will. Like if your
18th birthday is July 20, 2015, if you are born 2PM,
should it mean that in the morning of July 20, you
are still not 18? No, as long as July 20 has arrived
(by 12 midnight), you are already 18 and you may
now execute a will under the Spanish Law.
2.
Theory under the American Law it is sufficient

that the day preceding ones birthday had already
commenced. Example, now is your debut, yesterday
you may have executed a will.
3.
Theory under the New Civil Code Under this

theory, you are already 18 years old, 4 (four) days
prior to your 18th Birthday, you are already 18 years
old because for the computation of time under the

NCC, 1 year has 365 days. If you say 18 years old,
there should be 18 x 365 days. But there is a leap
year once every 4 years. In a leap year, there is 366
years. In 18 years, there will be 4 leap years. There
are 4 instances where a years has exceeded 366
years. So that is why you are 18 years old, 4 days
prior to your 18th birthday. Now, (for instance)
when a person enters into a contract and later on
claim that he is a minor, youre not a minor because
you signed the contract 2 days before your
birthday, you are already 18 years old 4 days before
your birthday under NCC. Or if you have been
accused of a crime like seduction and etcetera, you
are not a minor, so you can use that.
In succession, what theory do we follow? We follow the
theory of Spanish Law because our law in succession has its
origin in Spanish law, so we follow it. So you can execute a
will on the day of your birthday as long as youre 18th
birthday has commenced.
Art. 798. In order to make a will it is essential that the
testator be of sound mind at the time of its execution. (n)
Art. 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)
Remember Article 799. So this gives us the definition of what
is a sound mind.
NEGATIVE DEFINITION
The first paragraph of 799 is the negative definition of
soundness of mind. So it is not necessarily that the testator
be in full possession of his reasoning faculties or that his
mind be wholly unbroken, unimpaired, or unshattered by
disease, injury or other causes. So meaning, bisag naa kay
gamay, okay lang, because you do not need a perfectly
balanced mind for you to be considered of sound mind for
the purpose of executing a will. Okay, so thats the first
definition.
So a person suffering from a civil interdiction. Can that
person execute a will? Is he of sound mind? Is he of legal
age? So, mao ra na siya ang tan-awon. What is Civil
Interdiction, in the first place? Thats defined under the RPC:
Art. 34. Civil interdiction. Civil interdiction shall deprive
the offender during the time of his sentence of the rights
of parental authority, or guardianship, either as to the
person or property of any ward, of marital authority, of the
right to manage his property and of the right to dispose of
such property by any act or any conveyance inter vivos.
So you cannot manage your property and etcetera, but you
can execute a will, because the law only prohibits
conveyance inter vivos. Last will conveys a property mortis
cause. So thats the meaning. In fact, in the RPC:
Art. 82. Notification and execution of the sentence
and assistance to the culprit. The court shall designate
a working day for the execution but not the hour thereof;
and such designation shall not be communicated to the
offender before sunrise of said day, and the execution shall
not take place until after the expiration of at least eight
hours following the notification, but before sunset. During
24
the interval between the notification and the execution, the
culprit shall, in so far as possible, be furnished such
assistance as he may request in order to be attended in his
last moments by priests or ministers of the religion he
professes and to consult lawyers, as well as in order to
make a will and confer with members of his family or
persons in charge of the management of his business, of
the administration of his property, or of the care of his
descendants.
Even a person on death sentence, he can also execute a will,
he is given an opportunity to make his last will and
testament. How about spendthrifts or prodigals under
guardianship, can they execute will? As long as they are of
sound mind and of legal age. So, just remember those
qualifications. Now, as we discussed before it is easy to
determine whether a person is 18 years of age. Now, how
about whether or not a person is of sound mind? Because
again based on the definition of 799, bisag naa kay gamay,
pwede ka mahimong sound mind, you dont need to have a
perfectly balanced mind.
POSITIVE DEFINITION
It is more important to remember the second paragraph of
Article 799. This is the positive definition of soundness of
mind. So, I suggest if you are confronted of a problem in our
exam, you are asked to determine whether or not the
testator there is of sound mind, you examine or evaluate
whether or not he is qualified based on the guidelines
provided under the second paragraph of article 799. So what
are these guidelines?
1.
2.
3.
You must know the nature the estate to be

disposed of. So he must have the sufficient recollection
of his properties and comprehend their kind, character,
and quality in general. So meaning, at least he has ideas
what his properties are. That he has buildings in
Claveria, a lands in Tagum, or cash in several banks.
Though he may not know how many stories his buildings
are, how many hectares his lands, or how much exactly
is his cash. Normal persons are not expected to
memorize that like the title number of lands. At least,
you know your properties. [properties]
Neyra vs. Neyra

The issue here is WON a person with Addisons disease has
sound mind? Does it affect soundness of mind, among
others? When you say Addisons disease or sleeping
sickness. The SC said that sleeping refreshes the mind, so a
person with Addisons disease is not necessarily of unsound
mind. They receive the benefit of physical and mental rest.
Bagts vs. Paguio
Even if he was suffering from paralysis, he could not speak,
he could not hear, but still the SC said he was of sound
mind, basing on the first definition of soundness of mind in
Article 799.
Torres vs. Lopez
Senile dementia, its like Alzheimers disease, forgetful. As
long as it is not complete, that he could still comply with the
3 requisites in 799, then there is still soundness of mind.
The fact that a person is under guardianship is not
conclusive of his mental condition. Remember that a person
can be placed under guardianship not only because of
insanity, you may be placed under guardianship because of
prodigality, or age. So it is not conclusive of the mental
condition of a person under guardianship. Remember, senile
dementia only when it is complete.
Baltazar vs. Laxa
Being forgetful or magulyan is not equivalent to
unsoundness of mind. When the SC examined the will of the
testatrix, the 3 requisites under 799 are still present. She
requested that the customs of her trade be observed upon
her death, she was well aware of how she acquired her
properties, and she knows to whom who shall give her
properties. In that case, the SC confirmed that the testatrix
was still of sound mind.
Now, there are other defects like, in the case of:
Sancho vs. Abella
The testator must know the proper objects of his

bounty. So he must know those persons who would
naturally have a claim upon him. Like your children, you
are morally obliged to provide for your children. If you
forgot you have your children, you did not know. You
made a will under a state of mind, you are not
considered to be of sound mind because you do not
know the proper objects of his bounty. Had you known
or remembered, you would have provided them with
something in your will. So you have not given your
entire property to your neighbors. [persons]
Neither senile debility, nor blindness, nor deafness, nor poor

memory, is by itself sufficient to incapacitate a person for
making his will.
The testator must know the character of the

testamentary act. So this is equivalent to animus
testandi. He must know the legal consequences of this
act, that I am executing a last will and testament and I
intend to transfer properties covered in this last will to
these persons enumerated in the last will and this will
take effect upon my death. So you should know the
character of the testamentary act. [animus testandi]
Mere weakness of mind or partial imbecility from disease of

body or from age-does not render a person incapable of
making a will.
So all of these requisites must be present. If you answer a

question, you should examine based on each of the
requisites and then you conclude WON the testator is of
sound mind, even if your conclusion is not correct you will be
given points since you know the requisites.
Now we go to cases which illustrate WON the testator has
testamentary capacity.
The mere fact that in her will Matea Abella disposed of

properties, which she had already donated to other persons
at a prior date, is not an indication of mental insanity. At
most it constitutes forgetfulness or a change of mind, due to
ignorance of the irrevocability of certain donations.
Alsua-Betts vs. CA
Avelino vs. Dela Cruz

Is a blind person of sound mind? YES. In fact under Article
808 of the Civil Code, a blind person is recognized as having
the capacity to execute a will, although there are additional
requirements for a blind person. But, he can execute a will.
If you have an epilepsy, do you have soundness of mind?
Yes. As long as you comply with the three requisites. Your
body does not have to unshattered by disease, injury, or
other sickness, as long as you did not execute a will during
the attack, otherwise, that is very incredible, it cannot be
executed of sound mind.
25
In the case of Insomia, TB, Diabetes, Cholera, old age, **,
violent temperament, passions and prejudices, they do not
affect soundness of mind. Unless, passion and prejudice
border on delusion.
Drunkenness and Drug addiction, will these affect soundness
of mind? Drunkenness, he may be considered of sound mind
if sobra sobra iyahang pagka hubog bisag dili siya buang.
You dont have to have a perfectly balanced mind, but also
you dont need to be totally insane to be considered of sound
mind. As long as you comply with the 3 requisites, then you
are not of sound mind. How about drug addiction? Siguro
kanang mga naka drugs na ka afford na mang rape og mga

lola, mao siguro na nga state of mind, that is unsound.
How about coma? Dili siya insane but he is in coma. If the

will was found to be executed at the time the testator was in
coma, then it cannot be valid, because that person, at that
time, was not of sound mind. Now, according to IQ? At least,
we can quantify if you are of soundmind base on you IQ.
There are three groups according to IQ:
1.
2.
3.
Idiots IQ average would be 25. There are

described to be congenitally and intellectually
deficient. They cannot take care of their body needs
and they cannot even be trained. They cannot
execute wills as they are not of sound mind.
Imbeciles IQ average 26-50. They are mentally
deficient due to disease. They can be trained to
take care of their bodily needs only. They cannot
execute wills. They are considered to be of unsound
mind.
Morons IQ average 51-70. So they can learn
reading, writing, simple math. They can be selfsupporting. They can execute wills, their IQ is
sufficient to comply with the 2nd requisite of 799.
Torres vs. Lopez
The SC said that each case rest on its facts and must be
decided by its own facts.
Exceptions: There is an instance mentioned in Art800 when

the presumption is unsoundness of mind. So the moment
you filed for petition, testator is presumed unsound mind not
of sound mind. So you, being the one who filed the petition,
should prove first that the testator is of sound mind at the
time he made the will. What would be this situation?
1.
If the testator was publicly known to be

insane one month, or less before making his
less. If it is more than one month, it is not anymore
covered by the provision. Take note, publicly
otherwise, there is no presumption, although you
can prove that he is insane.
2.
When the testator was judicially declared

insane before the execution of the will. Like in
guardianship on the ground of insanity, here, there
is a court declaration that the ward is insane.
Although, as we discussed in Torres vs. Lopez, it is
not conclusive of the fact that the person is under
guardianship he is of unsound mind. Again, unless
the ground was for insanity. Then the presumption
would be unsoundness of mind. So if the
presumption is in reverse. However, you can prove,
as the proponent, that the testator is of sound mind
when he executed a will by clear and convincing
evidence.
3.
Presumption under the Rules of Court, an

insanity of a general or permanent nature
which is showed to have existed at one time
is presumed to have continued. Rule 131
Section 3 (ee). If, for example, from the
beginning, that is really your nature. When you
were 2 years old you were an idiot, until you
became 5 until 21 years old. The presumption is
you are still an idiot. So the proponent of the will
has the burden of proof that you are of sound mind
when you executed the will. But this is just a
presumption, this could be overturned.
ADMISSIBLE EVIDENCES
Therefore, there is really no hard and fast rule on whether

this person is of sound mind or not. But, at least,
jurisprudence would be your guide. Also, the requisites under
article 799. You can easily refer to these.
Now, we go to the evidence required to prove soundness of

mind. What are admissible evidence to prove soundness of
mind? In the case of:
Art. 800. The law presumes that every person is of sound

mind, in the absence of proof to the contrary.
In so far as the soundness of mind of the testator is

concerned, we have the testimony of the notary of the public
as one of the admissible evidence. As a general rule, that
testimony is given great weight. However, in this case, the
testimony of the notary public was not given weight. The
notary public was evasive, he could not commit himself he
was referring only to the certification to that effect, so that
was not given weight by the SC.
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)
GR: Soundness of mind. Every person is of sound mind as
a presumption, in the absence of proof to the contrary.
So what is the consequence of this presumption? If you are
the proponent of the will, meaning you presented the will for
probate, you dont have the obligation to prove that the
testator is of sound mind when he executed the will since it
is presumed.
But if you are the oppositor, and your ground is the
unsoundness of mind of the testator at the time he made the
will, you have to prove that.
The quantum of proof required is clear and convincing
evidence. It is actually one degree lower than proof of guilt
beyond reasonable doubt, one degree higher than
preponderance of evidence. Lowest is substantial evidence.
Ramirez vs. Ramirez
How about the testimony of the attesting witnesses, we are

referring here to a notarial will because there are no
witnesses when it comes to holographic wills. So the
witnesses on the notarial will are also competent witnesses
as to the mental condition of the testator. How about the
attending physician? We have here:
Samson vs. Corrales Tan
As a general rule, the testimony of the physician is given
highest regard if present when the will as executed. But in
this case, the SC did not give much credit to the testimony of
the physician, instead, it gave more credit to the testimony
of the attesting witnesses who positively testified that at the
time the testator executed the will, he is of sound mind. So
they testified to his mental condition.
Here, the physician is not the attending physician, so he can
26
only give an opinion to the mental condition of the testator
as opposed to the complete testimonies of the witnesses, the
SC here, again gave more credit to the testimonies of the
witnesses.
Articles 802 and 803 mention the right of a married woman.

So, a married woman may make a will without the consent of
the husband. Also, she may dispose by will all her separate
property as well as her share in the conjugal partnership or
absolute community without the consent of her husband.
The testimony of other witnesses may also be admitted, not

necessarily the attesting witnesses but also those persons
who are present at the time of the execution of the will. So
they witnessed the behavior of the testator at that time, the
way he talked, he moves, his demeanor. So they could testify
as to the mental condition.
As we have noticed, these articles do not mention about the

right of a married man. Can you say that married men can
make wills without the consent of their wives? Can they
dispose of their separate properties or his share in the
conjugal partnership or absolute community without the
consent of her husband? Yes, even if the same was not
mentioned in the two articles. Why? It is because this is just
in recognition of the right of a married woman.
July 23, 2015 (FJB)

Last meeting, we defined soundness of mind. Again, we have
positive and negative definitions of soundness of mind. The
negative definition is found under the first paragraph of
Article 789 while the positive definition is found under the
second paragraph of Article 789.
We also learned under Article 800 that the general rule is as
to the soundness of mind. The burden of proof is upon the
party who alleges that the testator is not of sound mind at
the time of the execution of the will.
We likewise mentioned the three exceptions.
We also mentioned the pieces of evidence which are
admissible to prove the mental condition of the testator at
the time of the execution of the will.
We already discussed before under Article 799 the case of
Baltzar v. Laxa. The state of being forgetful or magulyan,
according to the SC, is not equivalent to unsoundness of
mind. In this case, the SC also discussed the general rule
under Article 800 that every person is presumed to be of
sound mind. You need clear and convincing evidence to
overcome the disputable presumption.
Article 801. Supervening incapacity does not invalidate an
effective will, nor is the will of an incapable validated by the
supervening of capacity. (n)
As already discussed, soundness of mind must exist at the
time of the execution of the will. Supervening incapacity, i.e.
the testator become insane afterwards, does not affect the
validity of the will. In the reverse, what if the testator is not
of sound mind at the time of the execution of the will?
Meaning, he was insane.Then, at the state of his insanity, he
made a will. Subsequently, he became sane again and was
able to read his will executed at the time he was insane, and
decided to retain said will because he was impressed with
what he did. Then he died. Is the will valid? No, because
Article 801 says nor is the will of an incapable validated by
the supervening of capacity.
What if he really wanted to use that will? How can he give
effect to that document as his last will and testament? We
have this procedure called republication. He has to follow
that. It is not enough that he saw his will and decided to
retain it. That, however, is only in theory. In practice, it is
very difficult to prove that the testator was insane and that
he was cured and then decided to adopt his will executed
when he was still insane. Again, republication is required for
that will to be given effect.
Article 802. A married woman may make a will without the
consent of her husband, and without the authority of the
court. (n)
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)
It has always been recognized since time immemorial that

men can decide without the consent of their wives. Before,
decisions of the wives are dependent upon the consent of
their husbands. Now, it was made clear under the law that
the wives may now make their wills and dispose of the
abovementioned properties without the consent of their
wives. In fact, this was also mentioned under Article 97 of
the Family Code.
Art. 97. Either spouse may dispose by will of his or her
interest in the community property. (n)
That would be with respect to the right of a married woman.
Subsection 3. Forms of Wills
Article 804. Every will must be in writing and executed in a

language or dialect known to the testator. (n)
In the Philippines, there are two kinds of wills. What are
these? We have notarial wills and holographic wills. Do we
have other kinds of wills like nuncupative wills? Are they
recognized in the Philippines? When we say, nuncupative
wills, they are wills orally made in contemplation of death in
the presence of witnesses. Are they valid? No, because of
Article 804.
IN WRITING
So, based on Article 804, every will must be in writing.
Whether it is a holographic will or a notarial will, it should be
in writing. As I have said, nuncupative wills are oral wills.
Therefore, they violate the express provision under Article
804 because they are not in writing. So, they are not valid.
I think you have seen in movies, in teleseryes usually, where
it was shown that the deceased, who is at the verge of
death, bestows orally his properties to his children or orally
disinherits one or some of his heirs. Is that valid? In the
movies, it is valid, but we are not in the movies and this is
not a teleserye. Thus, not valid.
There is no NUNCUPATIVE WILLS in the Philippines. We only
have written wills. The law says in writing. What kind of
writing? When it comes to notarial wills, they can be
computerized, typewritten, engraved, in ink, red ballpen,
pink, yellow, etc. It does not matter as long as it is in writing.
When it comes to holographic wills, they must be
handwritten by the testator only. It can be cursive,
shorthand, etc. as long as it is written by the testator. What
if the testator has no hands but he can write through his
mouth or his feet? Is that valid as a holographic will? Well, as
long as it is the writing of the testator.
IN THE LANGUAGE KNOWN TO TESTATOR
27
The second requirement is the language requirement.
The law says it must be executed in the language or dialect
known to the testator. When you say language or dialect
known to the testator, the testator must really understand
the language used in the will. It does not have to be
interpreted or explained because the testator himself, when
he made the will, knew the language.
It is not required for the testator to be an expert

or proficient as long as he understand the language
and he could express himself in that language.
It is not even required that the language used

should be uniform, that there should only be one
language used in the will. It is possible that in the first
paragraph, the testator used French. In the second
paragraph, Spanish. In the third paragraph, Bisaya. As
long as he understood the language or dialect used in
the will.
With respect to this language requirement, we have

presumption under the law. As a general rule, we have a
presumption that the testator must be of sound mind.
Now, the other presumption is that the language
used in the will is known by the testator, meaning
the will is in a language or dialect known to the
testator. That is presumed.
What is now
presumption?
o
the
consequence
of
having
that
First, the testator does not have to state in the

will that it is in a language or dialect known
to the testator although in some wills, just to be
safe, especially in notarial wills, it is provided that
this will, which is written in English, a language
known to the testator. This, however, is not a
requirement.
Second, it is not also required to be stated in
the attestation clause. When we go to Article
805, there are also items mentioned there that
should be stated in the attestation clause. The
language requirement is not one of those required
to be stated in the attestation clause.
Third, the fact that the will is in a language or
dialect known to the testator can be proved
by extrinsic evidence or evidence alliunde. So,
if the will is silent or it is not provided in the will
that it is in a language or dialect known to the
testator and it is being questioned on that ground,
you can present extrinsic evidence such as letters of
the testator written in French, testimony of the
testators French friends who only know French,
thus proving that indeed the testator understands
French.
Those are the three consequences of the presumption

that the will is in a language or dialect known to the
testator. We have cases which illustrate the language
requirement.
Abangan v. Abangan
Was she a resident of Cebu? No.
So, even if she was not a resident of Cebu but a resident of a
neighboring locality, the Supreme Court said the will was in a
language or dialect known to the testatrix. It was sufficient.
This complied with the language requirement.
If you are a resident of a neighbouring town like Digos and
Davao, it would be very farfetched to think that someone
who is in Digos has not yet gone to Davao.The language are
the same, so they can really understand Bisaya. The
language is also the same in Cebu and Bohol. They have the
same language because of the proximity of their localities.
Reyes v. Vidal
Even if there was no testimony, even if there was no
statement in the will itself that the testator knew the Spanish
language, the records of the case showed that she knew.
What were the circumstances aside from the fact that she was
a Spanish mestiza? She was married to a Spaniard. She wrote
several letters in Spanish. She made several trips to Spain.
These circumstances would show that there was a connection
between the language used in the will and the circumstances
of the testatrix. So, the language requirement in this case was
complied with.
Abada v. Abaja
There was evidence to prove that the testator knew the
Spanish language. Again, what do you call this kind of
evidence? Extrinsic evidence or evidence alliunde. So, there
was evidence alliunde. There were evidence introduced
showing that the testator used to gather with Spanishspeaking people and in their gatherings, they would speak in
Spanish.
Acop v. Piraso
Where did the testator reside? In the City of Baguio.
Here, why was the presumption that the will is not in the
language or dialect known to the testator not applied?
What happened to that presumption?
What kind of presumption is this? A disputable presumption.
Javellana v. Javellana
What was the language used in the will? Spanish.
Where does the testator reside? In San Juan, Manila.
What was his language or dialect? Bisaya.
Here, the SC said that the presumption did not arise because
again you cannot relate the connection between the testator
and the language used. So, even if you have a presumption,
as held in the case of Acop v. Velasco, it could be contradicted
or rebutted by contrary evidence.
Those are the things that you have to remember insofar as
the language requirement is concerned. Again, you have the
presumption. As a consequence of the presumption, there is
no need to state in the will or in the attestation clause that
the will is written in the language or dialect known to the
testator, and you can present extrinsic evidence or evidence
alliunde to prove that the testator knew the language or
dialect.
But as the cases would show, even if you have the
presumption but you cannot find anything in the facts that
would atleast connect to the circumstances of the testator,
then, it is either the presumption did not arise, or even if it
did arise, it was wholly contradicted or destroyed.
The will, if it is a notarial will, contains the dispositions.
After the dispositions, you have the attestation clause and
then you have the acknowledgement. Is it required for the
testator to know the language used in the attestation clause?
There is no requirement. Why? Because, basically, the
attestation clause is the act of the witnesses, so the testator
is not concerned with the recitals in the attestation clause.
He only has to be knowledgeable of the language in the will.
In notarial wills, at least three witnesses are required. Are
the witnesses required to know the language used in the
28
will? No. They are only concerned with the attestation clause.
The will is the act of the testator. The attestation clause is
the act of the witnesses. The acknowledgement is the act of
the notary public.
Given that the attestation clause is the act of the witnesses,
is there a requirement that the witnesses should know the
language used in the attestation clause? Ideally, they have to
know. What if they cannot understand? What if the
attestation clause is in English and it was merely explained to
the witnesses? Well, an explanation of the language used in
the attestation clause to the witnesses would be sufficient.
That would be insofar as the language requirement.
Is there a requirement that the will should be dated? When it
comes to notarial wills, there is no requirement under the
NCC that the notarial will should be dated because the date
can simply be determined. Even if the testator already died,
there are still witness and the notary public who can testify
as to the date of the will. So, it is easy to know the date of
the execution of the notarial will.
But if it is a holographic will, date is a major part of the
formula. There are only three requirements. The will must be
(1) written, (2) dated, and (3) signed all in the hand
of the testator. So, if there is no date in a holographic will,
the will would be void. Remember, when it comes to the
date, in notarial will, it does not matter, but in holographic
will, it is very important.
[NOTARIAL WILLS]
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.
Article 805 is a very important provision. It gives us the
formalities of a notarial will. These matters mentioned in
Article 805 refer to the extrinsic validity of the will- the forms
and solemnities of a notarial will. It is very clear under Article
805 which says, Every will except holographic will, that this
article does not apply to holographic wills, only to notarial
wills.
You have to know by heart the requirements for the
execution of notarial wills. No need to memorize. Just
summarize. There are several requirements and all of these
requirements have equal importance. The common
underlying reason for the imposition of these requirements is
to prevent fraud in the execution of wills to assure that that
testator really executed the will intelligently and voluntarily.
So, we have these requirements to close the door against
fraud and bad faith, to avoid substitution of wills, and to
guarantee the authenticity of the wills. Failure to comply with
any of the requirements under Article 805, as a general rule,

would result to the inadmissibility of the will. So, the will
cannot be admitted to probate.
What are these requirements?
1st requisite The will must be subscribed by the
testator himself or the testator's name is written by
some other person at the end, in his presence, and by
his express direction.
Here, we have the requirement of subscription. What do we
mean by subscription? We are talking here of the
subscription by the testator. Meaning, the signing of the will
by the testator. Subscription here means signing. The
mechanical act of the signing the will.
WHERE
The law says at the end. The law here means the logical
end, not the physical end. The logical end refers to the
portion after the dispositions but before the attestation
clause. So, it is in the middle. After the last wishes of the
testator, his name follows. It is where he should sign. What
is the reason why it should be the logical end of the will? To
prevent unauthorized insertions. So, even if the dispositions
only reaches the middle portion of the paper signed by the
testator, such is still the logical end being referred to by the
law. It is not the physical end, but it is the logical end of the
will.
What if after reading and signing his notarial will, he realized
that he forgot to include his nephew, and so he made
additional dispositions after his signature, what is the effect
of those additional dispositions in a notarial will? The entire
will is void. Why? Because, there is now a violation of the
requirement that the notarial will must be signed at the
logical end. As I have said, the logical end is that portion
after all the dispositions but before the attestation clause. If
you have provisions after the signature, the signature now
ceases to be located at the logical end. It is now at the
middle of the provisions. Again, in a notarial will, the
observance of the requirements in Article 805 is very
important. This merely refers to the form, not yet to the
substance of the will. So, the will is void in its entirety. Please
remember that because this is not the case in terms of
holographic wills.
In holographic wills, you can actually add provisions after the
signature. We will go that later. Just remember that for
notarial wills, the testator should sign at the logical end of
the will. Therefore, he is not allowed to add provisions after
his signature.
What if the testator really wants to include his nephew in the
will? What should he do? The proper way is not to insert or
add. He can either execute a new will or a codicil. That
would be the proper procedure. That is for notarial wills.
WHO WILL SIGN
1.
Of course the testator.
2.
Can another person sign in behalf of the testator?

Yes. The law is very clear or by some other
person only that there are requirements:
It should be in the presence of the testator.

When you say in the presence, it means the
testator really saw. He is within the vicinity.
That is the ideal pursuant to the test of
presence. Although there are other tests of
presence. We have four: (1) test of vision, (2)
test of mental apprehension, (3) test of
position, and (4) test of available senses. We
will discuss that later.
29
Ideally, it should be in the presence of the
testator (test of vision). However, it is not
actually needed that he really saw the signing.
What is required is that the testator is in a
position to see the signing (test of position).
What if the testator is blind? Is that considered
as in his presence? Yes, in accordance with
the test of available senses. It is within the
range of his other senses such as the sense of
touch, smell, hear, etc. Again, the signing must
be in his presence and under his express
direction.
Second, under testators express direction.

When we say express direction, it means that
there is really a direction from the testator to a
certain person to sign in his behalf. It must be
express as opposed to the word implied.
Implied consent is not tantamount to express
direction. When you say express direction, the
testator shall by word of mouth or by action
clearly indicate to the proxy his desire to have
his name signed in the instrument.
So, the testators mere knowledge or consent
that his name is being signed for him, or his
acquiescence in such an act, or a mere implied
assent to the signing by another person is not
sufficient to meet the requirement of express
direction.
WHAT OR HOW TO SIGN

What should the testator sign in the will? What should he
subscribe in the will? Of course, his name. What signature? It
can be his customary signature. So, if his name is Piolo
Pascual, he can write his entire name. If he uses PP (initials),
that is also allowed if that is his customary signature. He can
sign in two ways. He can sign in his full name.
He can sign using other marks like, aside from his initials, it
can be his thumb mark, stamp, cross, smile, heart, or any
other mark as long as it is his customary signature, or he
intended that mark to be his signature. That is insofar as
notarial wills is concerned. He can sign by those means.
What if it is the third person who will sign in behalf of the
testator? What will the testator put in the will? Of course, the
testators name. The third person, even if he signs for and in
behalf of the testator, should write the name of the testator.
Although he can add his name in the will, he should put the
name of the testator.
What was the kind of the will here? Notarial.

Who was the testator? Mercado.
Who wrote the name of Mercado in the will? Atty. Florentino.
However, Mercado placed a cross above his name.
Was the cross considered to be the signature of Mercado? No,
because it was not his customary signature.
Will this fact make the will void? No.
When the SC found no evidence showing that the cross was
the customary signature or the intended signature of the
testator, it converted the will into one which is signed by a
third person (Atty. Florentino). Again, even if the cross there is
not the valid signature of the testator, that alone did not
invalidate the will. Even if we disregard the cross (meaning the
will was not signed by the testator himself), a third person can
also sign in behalf of the testator. So, in that case, that will is
considered as signed by a third person in behalf of the
testator.
However, aside from the fact that under Article 805, it should
be signed in the presence and under the express direction of
the testator, it is also required to state in the attestation clause
that it was signed by the third person under his express
direction. This requirement was lacking in this case.
The will was void not because the cross was not the customary
signature of the testator since the will, notwithstanding the
unauthorized mark, can still be valid if the will is signed by a
third person. The will was void in this case because of the
failure to state in the attestation clause that the will is signed
by a third person in the presence and under the express
direction of the testator.
E-SIGNATURE NOT (YET) ACCEPTABLE
How about electronic signature? Can electronic signature be
affixed in a will? Under the present law, it is still not
acceptable because it is defined as one which is affixed
pursuant to transactions or contracts. An e-signature is
attached to or logically associated with the e-data message
or e-documents or any methodology or procedure employed
by or adopted by a person and executed or adopted by such
person with the intention of authenticating or approving such
e-message or e-document.
A will is not an e-message or e-document. It is not a
transaction or a contract, so it is still not acceptable but the
law may be amended. Whatever is allowed by law will be
allowed. But as of now, based on the present definition, it is
still not acceptable.
Leano v. Leano
The testatrix here was Christina Valdez. How did you know?
Is there anything in the will which would indicate that she
was the testatrix? It was written in the will.
What was the nature of the will? Notarial.
Who wrote the name Christina Valdez? A third person. It
was not Christina Valdez herself.
So, a third person wrote the name Christina Valdez in the
will. However, Christina Valdez inserted a cross on her name.
Was it her customary signature? Was there an intention to
make the cross as her signature? Yes.
Here, as long as you can prove that the mark was the
customary signature of the testator or there was an intention
to constitute the mark as her signature, then the mark is
valid as a signature. Here, the will was valid because the will
was considered to be her signature.
Garcia v. Lacuesta
2nd requisite The testator of 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.
The second requirement is the testator or the person
requested by him to write his name and the credible witness
shall sign each and every page of the will on the left margin
except the last page.
Note that in the first requirement, we said that the testator
or the person requested by him should sign at the logical
end. Aside from that, pursuant to the second requirement,
he should also sign in the margins. That is what we call as
the marginal signatures. The usual marginal signature is on
the left margin of each and every page except the last. Why?
Because, the last page contains the signature of the testator
at the logical end. This is to avoid duplication.
The purpose of marginal signatures is for identification, so
that the will and all its pages can still be identified by the
witnesses by the presence of the signatures. The signatures
30
would remind them that it was the same will that was
executed 20 years ago. That is marginal signatures. If the
will consists of only one page, then there is no need for
marginal signature.
The law says left margin. Why? The only possible explanation
would be that the margin on the left side is wider. This was
not explained by the authorities. What if you signed not on
the left margin but on the right, top, or bottom?
Jurisprudence says that it does not matter. The will would
still be valid. As signatures would appear at the left, right,
top, or bottom margins, it does not matter because it would
still serve the purpose of identification. You can still identify
the will based on the presence of the signature [regardless of
position].
The requirement of marginal signatures is not only limited to
the testator. It extends to the credible witnesses. They
should also sign in the margins.
What if there is only one sheet of paper but it is back-toback? The back portion contains the signature of the
testator. Is there a need for him to sign at the front page?
Yes. A page is different from a sheet. One sheet of paper
consists of two pages-front and back. All pages should be
signed.
What if the will consists of 4 pages? The first three pages
contains all the dispositions of the testator as well as his
signature. The fourth page contains the attestation clause
and acknowledgment? In this case:
Fernandez v. de Dios
The testator failed to sign the fourth page. Is the will valid?
Yes. Based on the basic principle that the will is the act of
the testator; the attestation clause is the act of the witness;
and, the acknowledgement is the act of the notary public.
What the law requires for the testator to sign in the margins
is the will. Thus, when the third page only contains the
attestation clause, strictly speaking, the same is no longer
part of the will. The testator need not sign the page, only the
attestation clause. But the witnesses must sign the pages
containing the will and the attestation clause.
July 27, 2015 (ZM)
Under Article 805 the signing on the margins should be done
by the testator himself or the person requested by him to
sign and by the marginal witnesses or the attesting
witnesses, the instrumental witnesses, the credible
witnesses.
If the signing is done by another person in behalf of the
testator it should be in his presence and under his express
direction. We defined presence and what are the different
tests of presence.
The law says the credible witnesses of the will shall sign each
and every page of the will on the left margin except the last.
In a notarial will we require at least 3 witnesses
these witnesses are called:
1.
Credible witnesses (Art 805)
2.
Marginal witnesses because they sign in the

margins
3.
Instrumental witnesses because they witness to

the execution of the instrument
4.
Attesting witnesses because they attest to the

execution of the will.
These persons, they are one of the same persons. You

cannot have different persons. They should be the same
persons.
Gonzales vs. CA
There are two components of being a CREDIBLE witness:
1.
They should be competent
Those who have all the qualifications under article 820 and
none of the disqualifications under 821. This is determined
by law or statute
2.
Credible
This is the capacity to tell the truth. This is determined by

the appreciation of the court.
Before the witnesses are asked to testify on the facts
surrounding the execution of the will, there is no need to
present prior or independent evidence to prove their
credibility because credibility is presumed.
In naturalization proceedings there is a need to present prior
or independent evidence to prove their credibility. The
witnesses in naturalization proceedings are character
witnesses. If a foreigner for example wants to be naturalized,
he should present evidence that among others he has
embraced the culture of the phil etc. so here the witnesses
who will testify will testify as to the character of the person
seeking naturalization. That is why they have to be proven
credible first. There is a need to present prior or independent
evidence to prove that these witnesses possess credibility,
integrity, probity, that they are of good repute in the
community. So those pieces of evidence are need.
But in probate proceedings the witnesses do not testify as to
the character of the testator. But they merely testify as to
the facts attendant to the execution of the will. So there is
no need to present prior or independent evidence to prove
their credibility.
Whether or not they are credible, that can be determined if
they are competent, if they have all the qualifications under
article 820 and none of the disqualification under article 821
and if based upon the appreciation of the court they are
telling the truth. They testify upon personal knowledge and
not hearsay.
Taboada vs. Rosal
First page contains the entire disposition and the second
page contains only the attestation clause and the
acknowledgement. The second page was signed at the
bottom by the attesting witnesses and the testator on the
left margin.
Trail court denied the probate of the will because it is not
enough that only the testatrix signs at the end but all the 3
subscribing witnesses must also sign at the same place or at
the end in the presence of the testatrix.
The presence of the signatures of the witnesses on the
margins is for identification; attested to the genuineness of
the signature of the testator and the due execution of the
will as embodied in the attestation clause.
So there is no need for the witnesses to also sign at the send
because they already signed at the margins and besides the
law did not even mention that each and every page should
be signed by the witnesses at the end. The law merely says
that the will must be signed at the end by the testator
himself or by the person requested by him to sign and also in
the margins. Probably the trial court here was confused as to
the application of the law, there is no need for the witnesses
to sign at the bottom of the first page containing the
disposition.
There is another case where the SC said that they have to
sign at the bottom. But its not in the page containing the
31
testamentary dispositions. We refer here to the first page
containing only the testamentary dispositions.
As to the second page, if it only contains the attestation
clause and signature there is even no need for the testator to
sign. If she signs doesnt matter even if she did not sign the
will would still be valid because the attestation clause, strictly
speaking is not part of the will.
If the will contains only one page, all the testamentary
dispositions,
the
attestation
clause
and
acknowledgement of course in one page, there is no
need for marginal signatures because the purpose of
marginal signature is already served by the presence of
all the signatures.
Here, if later on the witnesses would be asked to testify as to
the will, if this is the will which you attested 20 years ago
they could already identify the will by the presence of the
signatures.
Abangan vs. Abangan
Even if the law says in the left margin, the signatures can
actually appear at the top right bottom of the will or even in
the body of the will. The presence of signature would already
be sufficient for the will to be identified. The main purpose of
marginal signatures is for identification.
If there are several pages then each and every page should
be signed in the margins. At the end of the disposition we
have the signature of the testator. So if there is already a
signature of the testator at that page at the end of the
disposition, ang kinahanglan nalang ninyo ka yang signatures
sa witnesses sa margins.
If we have 3 pages, first and second page contains
disposition, third page, disposition again but only half of the
page was used and the other half contains the attestation
clause and the acknowledgement. So we have 3 pages. The
first and second pages should have all the marginal
signatures of the testator and witnesses. But in the third
page where the testamentary disposition ended, together
with the attestation clause and the acknowledgement, there
is no need for marginal signatures because we already have
all the signatures there. What is important is that each and
every page should have all the signatures.
What is the consequence when a page of the will
lacks marginal signatures?
General rule: The will is void because it is a mandatory
requirement
Icasiano vs. Icasiano
In this case there was simultaneous lifting of the pages.
There were 4 copies of the will. The copy where there was a
lacking signature was the original. So this was due to the
inadvertent lifting of two pages instead of one. In the other
copies of the will the signatures were complete.
In this case even if one page lacked a marginal signature the
SC still allowed the will because we should not penalize the
testator for the acts, mistake or negligence of one witness.
Besides, there were several copies of the will and it had
complete signatures on the margins. It would be a different
story if you have only one copy of the will and one page of
that lacked a marginal signature.
3rd requirement All the pages shall be numbered

correlatively in letters and such is placed on the
upper part of each page.
Here the pages of the will must be numbered. The purpose

of numbering is:
1.
To guard against fraud
2.
To forestall any attempt to suppress or substitute

any of the pages
3.
To afford means of detecting the loss of any of its

pages
4.
To prevent any increase or decrease in the pages
The law says numbered correlatively in letters: PAGE ONE

so you have to spell out.
Unson vs. Abella: Arabic numerals
Aldaba vs Roque: letters (A,B,C)
Nayve vs Mojal: numbers (1,2,3)
In re Pilapil: in letters and partly in figures
These are allowed as long as you can identify which is the
first page and so on and do forth. This is because we need a
means to detect the increase or decrease of the pages, the
loss of the pages, the suppression or substitution of pages.
That is why numbering is required.
The law says on the upper part of each page. What if you
placed it at the bottom? It doesnt matter. The location of
the page number will not affect the validity of the will as long
as you have the page number. In fact it can even appear in
the body of the will.
Fernandez vs. de Dios
The page containing the attestation clause was not
numbered. However it does appear in the text of the
attestation clause the words having reference to the number
of sheets of the will including the page number of the
attestation. So obviously the page containing the attestation
clause is the fourth page and hence the SC held that there is
substantial compliance.
Here you can still determine the page number even of there
was no clear page number at the top or bottom but it can be
gathered from the statement in the attestation clause so it
appears at the body of the attestation clause. Here again,
the will is valid.
Lopes vs. Liboro
The first page does not have the page number. there were
several pages here but the first page was not numbered.
Would this invalidate the will? SC said no because it is very
clear that it is the first page. Usually the first page contains
the title last will and testament.
Abangan vs. Abangan
The will only had one page and it was not numbered. It will
not affect the invalidity of the will. It is understandable that if
the page is lost everything would be lost. So you can easily
determine the degrees of the pages because there is only
one page. The absence of a page number, if the will has only
one page will not invalidate the will.
4th requirement The will must be attested and

subscribed by 3 or more credible witnesses in the
presence of the testator and of one another.
Here we are talking of the act of the witnesses. What should
the witnesses do?
32
1.
They attest. Attest means the act of witnessing. It

is the mental act. What will the witnesses attest to?
They witness:
2.
The signing by the testator
The signing by each and every one of them
SUBSCRIPTION
Consist in witnessing the

testator's execution of the will in
order to see and take note
mentally that those things are
done which the statute requires
for the execution of the will and
that the signature of the testator
exists as a fact. It is the act of
the witnesses, not that of the
testator although it necessarily
involves the act of the testator
in executing the will and
requesting the witnesses to act
as such
The signing of the witness name

upon the same paper for the
purpose of identification of such
paper as a will executed by the
testator
The mental act of the senses
The mechanical act of the hand
The purpose of attestation is to

render available proof of
authenticity of the will and its
due execution
The purpose of subscription is

identification. Thus, indicates
that the will is the very
instrument executed by the
testator and attested to by the
witnesses and therefore implies
that the due execution of the will
as embodied in the attestation
has been performed
The act of witnesses
The act of the testator when the

testator signs the will or the
witnesses if the witnesses
affixed their signature in the will
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
To subscribe a paper published

as a will is only to write on the
same paper the names of the
witnesses for the sole purpose of
identification
Nera vs. Rimando
Maravilla vs. Maravilla
What do we mean by in the presence? For example we

have the 3 witnesses and the testator. So the testator signed
the will and he also signed in the margins. That act of the
testator must be in the presence of the witnesses. Now it is
the witnesses turn to subscribe. When one witness signs the
margins that signing should be done in the presence of the
testator and in the presence of each and every one of them.
What of during the time when one witness what signing, the
other witness was watching the TV. So could we say that the
signing was in his presence?
FOUR TESTS OF PRESENCE

We already mentioned the 4 tests of presence when we
discussed that in connection with the signing of the person
requested by the testator to sign the will. It should be in the
presence of the testator and under his express direction.
Test of vision
The signing is within the reach of the vision.
Test of position
So in this case he was in the position to see. Even if he

had his back turned he could easily cast his eyes in the
proper direction. There was no obstruction so he was
really in the position to see. So it is not required that
you should really see it as long as you are in the
position to see the act of signing.
SC discussed that if for example there is a curtain

which separates the testator and some witnesses from
the witnesses the will would not be valid because there
is a physical obstruction and hence they were not in a
position to see. Here SC said that in that case it would
not satisfy the test of presence.
The attestation and the subscription should be done in the

presence of the testator and of each and every one of them.
2.
Before one of the witnesses left, he saw the last

witness beginning to sign but the latters signature was
not yet completed when the former turned his back
and left the room. So the SC used the test of position
in this case, this is when you are placed in such a
position that if you want to see the testator you may
do so without any physical obstruction.
They subscribe. Subscribe means the act of

signing. When they sign in the margins that is what
we call subscribe.
ATTESTATION
1.
Jaboneta vs Gustilo
The testator, the lawyer and the witnesses sat next to

each other at a round table when the will was signed.
The relative positions would tell us that they were all in
the position to see each other.
The witness was not required to positively identify the
signature of the testator. It would be incredible if he
would be able to identify because he only saw the
signature once 14 years ago. It was just reasonable.
He was a credible witness in that case his testimony is
capable of belief.
So here there is no requirement for the witness to
positively identify the signature of the testator. The
only requirement is that he was in the presence of the
testator and of each and every one of the witnesses.
The test of position will suffice.
If this is a holographic will the rule would be different
because in holographic wills a witness is really required
to explicitly and positively declare that the signature in
the will is that of the testator. This is because
witnesses are not required in holographic wills.
3.
Test of available senses

This test is used if the testator is blind. The blind
testator can use his other senses like the sense of
hearing, smelling or touching. But a blind person cannot
be a witness; the will would be invalid. We cannot apply
the test of availability of senses insofar as blind
witnesses are concerned because one qualification of a
witness is that he should not be blind. So a blind person
is disqualified to become a witness. A blind person can
be a testator but he cannot be a witness.
4.
Test of apprehension
Even if you did not see but at the back of your mind you
already know that the will is being signed.
Gabriel vs. Mateo
There is no particular requirement as to the order of
the signing. As long as the signing is sufficiently
contemporaneous and made on one occasion and as
part of one single transaction.
Reason for the requirement that the signing should be
33
done in the presence of the testator and in each and
every of them: to avoid fraudulent substitution of the
will and to make it more difficult the invention of false
testimonies by the witnesses since they may be the
witness of one another. It would be difficult to
introduce false or perjured testimony.
RE: ATTESTATION CLAUSE

In relation to this, we discussed that the will must be
attested and subscribed by the witnesses in the presence of
the testator and of each and every one of them. We also
discussed and defined the meaning to attest.
Aside from the fact that the will should be attested because
attestation is a mental act, we also need the attestation
clause. Even if in reality the witnesses really attested the will
but without the attestation clause, the will is not valid. Aside
from the ACT there should be that WRITTEN STATEMENT
and that is the attestation clause.
An attestation clause is the declaration made by the
witnesses. It is that clause of an ordinary or notarial where
the witnesses certify that the instrument has been executed
before them and the manner of the execution of the same. It
is a separate memorandum or records of the facts
surrounding the conduct of execution and once signed by the
witnesses, it gives affirmation to the fact that compliance
with the essential formalities required by law has been
observed.
The purpose here is to preserve in a permanent form a
record of the fact attending the execution of the will. So that
in case of death, absence or failure of memory of the
subscribing witnesses or casualties, the due execution of the
will may still be proved.
This is because usually in testifying to the will it is during
probate and it happens long after the execution of the will.
What if at that time all the witnesses forgot about the will or
all of them died or all of them left the Philippines. So who will
testify? So how do we prove the due execution of the will?
We have the attestation clause which preserves in a
permanent form the facts attendant to the execution of the
will. So that is the purpose why aside from the fact of
attesting, we need the attestation clause.
As we discussed, the witnesses attest to the genuineness of
the signature of the testator and they attest to the due
execution of the will as embodied in the attestation clause.
The attestation clause is the act of the witnesses. It is their
declaration regarding the facts attendant to the execution of
the will. That is why the signatures of the witnesses are
required in the attestation clause.
Azuela vs. CA
The page containing the attestation clause was signed in the
margins by the witnesses. But they did not sign at the
bottom of the attestation clause. The signatures on the
margins were not considered as substantial compliance.
Marginal signatures purpose is for identification and it does
not matter where they are located. But when we speak of
the attesting signatures, they must be at the bottom to
signify that, those persons who signed, that they own or they
avow the truth of the recitals contained din the attestation
clause. You cannot consider the signatures n the margins as
being directed towards the avowals or recitals contained in
the attestation clause. SC said those marginal signatures are
directed towards a wholly different avowal. They are merely
for identification.
clause but no signatures in the margins, the will would still

be valid. So even if the signatures are at the bottom they
could still serve a double purpose. They can serve tio avow
or won the recitals in the attestation clause and they could
also serve to identify the page.
The case of Azuela is the same as the case of Cagro vs.
Cagro. SC made the same pronouncement that the will was
void because it was not signed at the bottom.
When we say attestation clause it is the act of the witnesses.
They should sign at the end of the attestation clause. SC
pointed out that it would be dangerous if they would just
accept that attestation clause was being signed at the
margins because it would be very easy to just insert an
attestation clause if you just allow signatures in the margins.
This is another safeguard to prevent the future insertion of
an attestation clause in a will that does not otherwise contain
an attestation clause.
The specific statements which should be included in
the attestation clause:
1) The number of pages used upon which the will is
written
If you remember there is requirement that each and
every page must be numbered correlatively in letters.
Aside from that you still need to state in the attestation
clause the total number of pages even if you already
have the page number on each and every page.
The purpose is to prevent an increase or decrease in the
number of pages. For example you have a will consisting
of 5 pages and we did not know that it really contains 4
pages or even 6 pages. So there has to be a statement
in the attestation clause to really clarify how many pages
are really contained in the will.
Azuela vs. CA
There was an attempt to indicate the number of pages
but it was just left blank. This is a fatal flaw because
the requirement is mandatory. There is no substantial
compliance. It still remains that there is no statement
at all, you cannot find it anywhere in the will.
In re: Matter of the petition for the probate of
the last will and testament of Enrique Lopez
There is nothing in the attestation clause that states as
to the total number of pages used in the will. Then
there is a statement in the Acknowledgement portion it
states that the will consists of 7 pages. But the will
actually consists of 8 pages. That is a fatal defect. It
invalidated the will. There is no substantial compliance
because there is a need to present evidence alliunde.
Taboada vs. Rosal
This is the same case of lopez. The attestation did not
mention the total number of pages. However, in the
acknowledgement portion, although it was stated in
Spanish and the English translation was this testament
consists of two pages including this page SC allowed
the will on the ground of substantial compliance
because even if it is not mentioned in the attestation
clause, you dont have to go out of the will to
determine the number of pages. You can just look at
the acknowledgement portion. From that statement,
you can conclude that the will only has two pages the
first page and second page including the
acknowledgement. That defect in the attestation was
cured by that statement in the acknowledgement.
If there were signatures at the bottom of the attestation

34
The difference with the previous case is that the statement
of the number of pages was wrong. It stated 7 but in reality
the will had 8 pages.
July 20, 2015 (JCP)
was the statement, Subscribed and professed by the testator

Alipio Abada as his last last will and testament in our
presence, the testator having also signed it in our presence
on the left margin on each of every page of the same.
Issue: WON the statement in the presence of the
witnesses is omitted?
Art. 805. xxx

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)
We have discussed the matters that must be embodied in the
attestations clause: First, The number of pages used upon
which the will is written. We discussed the case of Azuela v.
CA and Matter of the Petition for the probate of the last will
and testament of Enrique S. Lopez. Also the case of Taboada
v. Rosal. Lets go the second
2) The fact the testator signed the will and every
page thereof or cause some other person to write
his name under his express direction
So we are referring here to the signing by the testator.
So it is either you state that the testator is signing the
will or another person signed the will under the express
direction of the testator.
Garcia v. Lacuesta
The name of the testator Antero Mercado was written
by his lawyer and there was a cross affixed by Antero
Mercado however there was no evidence that he
intended his cross to be his signature. It is not his
customary signature, therefore, the SC first
disregarded the cross since it was not the signature of
the testator. What we have here is a will which is
signed by the lawyer in behalf of the testator however
you should state that in the attestation clause. That it
is signed by a third person under the express direction
of the testator. That made the vill void because it lacks
the statement under his express direction.
3) That the signing by the testator or the person
requested by him was in the presence of the
instrumental witnesses.
Aside, from the fact that you state that the will was
signed by the testator, you state that the signing was
made in the presence of the witnesses.
4) That the instrumental witnesses witnessed and
signed the will and all the pages thereof in the
presence of the testator and of one another.
I am referring to the act of the witnesses. Take note,
that the witnesses witnessed and signed the will or
attested and signed the will in the presence of the
testator and each one of them. It is very important that
you have to state that in the attestation clause. To be
safe, you better copy the provision in Art 805 because
maling gamay it would be very fatal to the validity of the
will.
Abada v. Abaja
Here it was allaged that the attestation clause fails to state
expressly that the testator signed the will and every page in
the presence of the witnesses. As translated in English, this
Answer: NO. The SC said that this attestation clause clearly

states that the body of the will was signed in the presence of
the witnesses but it was worded differently.
Another allegation was that the attestation clause does not
indicate the number of witnesses. The SC said that the rule
on substantial compliance will apply in determining the
number of witnesses. While the attestation clause does not
state the number of witnesses, a close inspection of will
shows that three witnesses signed it. So it can be clarified by
just looking at the will that there are 3 witnesses and without
presentation of evidence aliunde.
With respect to the attestation clause the SC said that: the
precision of language in the drafting of the clause is desirable
however it is not imperative that a parrot like copy of the
statute is made, it is sufficient if the language employed it
can reasonably be deduced that the attestation clause fulfills
what the law expects of it.
Art. 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)
Acknowledgement is to avow. It is a statement where the
notary public declares that the witnesses and testator
personally appear before him and that they voluntarily
executed the will and understood the same. Meaning, it
connotes voluntariness and intelligence.
What is the consequence if the document is acknowledged in
the Notary Public? There is a presumption of regularity. And
what is the consequence, if there is a presumption of
regularity? The burden of proof is higher. You need to have a
clear and convincing evidence to overthrow the presumption.
Acknowledgement is mandatory only to notarial wills.
Acknowledgement is an important part of a notarial will, how
does a will look like? Testamentary Provision, signature of
testator, Attestation Clause and then you have the
acknowledgement. Testamentary provision is signed by the
testator, the attestation clause is signed the three witnesses.
The acknowledgement is also the sign of the Notary Public.
Cruz v. Villasor
Issue: WON the Notary Public can also be the attesting
witnesses?
Ruling: NO. Third witness here cannot split his personality
into two. There is a physical impossibility because when you
acknowledge in the Notary Public, you avow before the
Notary Public. The other reason, is there would arise a
conflict of interest. Because as a notary public your purpose
is to guard against fraud and immoral arrangements and as a
witness is to sustain the validity of your act.
What if there are four witnesses, what happens? Take note,
that the Notary Public would just be disqualified as a witness
and the will would be valid even if he acknowledged the
same.
Azuela v. CA
An acknowledgement coerces the instrumental testator and
the witnesses that they executed the will in their own free
35
act and deed. What is a jurat? It is a statement under oath.
There is nothing in the jurat that complies with Art 806 that
the witnesses should declare that the will is for the testator
and the attestation clause is for the witnesses and was
signed by them voluntarily and intelligently. So, a jurat is not
a sufficient compliance of acknowledgement required under
Art 806. Again, take note, that there has to be a statement
where the Notary Public coerces the testator and the
witnesses to declare before him under pain of perjury that
they really voluntarily and intelligently executed the
document. That is the importance of acknowledgement.
Art. 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.
Okay so it is very clear that a blind person can be a testator.
Although there is an additional requirement to read once by
one of the subscribing witnesses and another by the notary
public before whom the will is acknowledged. Now, when do
we consider a person as blind? Does it mean that a blind
person be in total blindness.
Echavez v. Dozen Construction and Devt Corp.
Garcia v. Vasquez
An acknowledgement and attestation clause cannot be

merged into one statement. These provisions are under the
New Civil Code under Art 805 and Art 806 hence it indicates
that the law contemplates two distinct acts that serve for
different purposes. Acknowledgement is made by one
executing the deed declaring before a competent officer of
the court that the deed or act is his own while attestation
clause refers to the act of the instrumental witnesses
themselves who certify to the execution of the instrument.
So when you say, the attestation clause is the act of the
witnesses while acknowledgement is a statement where the
Notary Public coerces the testator and the witnesses to
declare before him under pain of perjury that they really
voluntarily and intelligently executed the document. Thus
you cannot merge the attestation clause and the
acknowledgement in the acknowledgement portion. Even
granting the acknowledgement embodies what the
attestation clause requires still the SC said it is not
acceptable that the two can be merged.
Considering
the
appearance
of
the
will,
the
acknowledgement and attestation clause were crammed
together into a single sheet of paper as to save space, then
they were typographical errors. The SC said that it is difficult
to understand that so important a document containing the
final disposition of once worldly possession should be
embodied in an informal instrument. So base on these, the
testatrix was not able to read the will and Art 808 was not
complied with. It should have been complied with because of
the condition of her eyesight, she could only view distant
objects but she could not read print. It is not required that
the testator will be totally blind for you to be considered
blind under Art 808.
With respect to failure to attach a documentary stamp in the

acknowledgement, is it a ground to invalidate a will?
Gabucan v. Manta
Failure to attach doc stamp is not a fatal defect. You can just
require that the doc stamp be affixed in the will.
Is the Notary Public, require to know the contents of the will?
As a general rule NO, he will just ask the testator that did
you understand the contents of the will? Did you voluntarily
signed the will? Is it your act? That is also the same question
to the witnesses. The Notary does not have to know the
contents of the will. Except where the testator is blind under
Art 808, the will shall be read twice, first by one of the
subscribing witnesses and another by the Notary Public by
whom the will is acknowledged. So, in that case he would
really have to know the contents of the will.
Even if the will is acknowledged, it is not a public document.
It still retains its character as a private document. It is still a
confidential document. And under the Notarial law, when you
notarize a document, you are actually required to retain two
copies of the document, one for you and the other will be
submitted to the clerk of court. But if it is a will, we have
already discussed that the notary public is not required to
retain a copy of the will and is not required to submit a copy
to the Clerk of Court.
Art. 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)
In respect to Art 821 a deaf, deafmute, blind cannot be a
witness to a will. Take note, that the two persons that can
read the will for the testator need not be the attesting
witnesses. He just have to designate two persons to read
and communicate to him the contents of the will.
Again, the reading should be done once by the subscribing

witness and another by the notary public who acknowledged
the same.
Alvarado v. Gaviola
So the will was read allowed by the lawyer who drafted the
will and then the testator had his own copy, he was following
the reading silently, also, the subscribing witness have their
own copies. After the reading, the testator affirmed the
contents of the will. That was the procedure taken in this
case but note that it is not the procedure required under
Article 808 because it should have been read once by the
subscribing witness and another by the Notary Public who
acknowledged the same.
In this case, the testator is blind since she cannot read; she
can only see objects at 3 ft. and count fingers but not read.
In here, the law was not followed by letter but in spirit it
was. So here, the SC said as long as the purpose of the law
is complied with which is to ensure the authenticity of the
will then the formal procedure should be brushed aside, also,
when they do not affect its purpose and which taken into
account would only defeat the testators will.
Art. 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 is the Rule on Substantial Compliance.
When there has been an attempt to comply with all the
requirements of the law but the compliance is only
substantial not literal and the purpose ought to be attained
by the law is accomplished though not strictly followed.
The purpose of the Rule on Substantial Compliance is to
attain the main objective of liberalization of the manner of
executing wills.
The policy is to require satisfaction of legal requirements to
guard against fraud and bad faith without undue or
unnecessary curtailment of testamentary privilege.
36
Defects excused under 809
(1) Defects and imperfections
attestation and
in
the
form
of
(2) Defects and imperfections in the language used in

the attestation.
Requisites for the application of 809
(1) There are defects and imperfection in the form of
the attestation clause or in the language used
therein;
(2) There is absence of bad faith, perjury or fraud or
undue improper pressure or influence;
(3) The will was executed and attested in substantial
compliance with the requirements and
(4) The fact of such execution and attestation is
proved.
Now using these four requisites as guidelines can you now
readily ascertain or determine which defects can be excused
on the ground of substantial compliance and which defects
are not excusable? It is not clear when you follow these
requisites. That was observed by Justice Reyes, that the law
doesnt seem to distinguish. It appears that these defects
can cover those intrinsic and extrinsic evidence. Reyes said,
if the rule was so broad that the attestation clause can be
cured by evidence aliunde or extrinsic evidence, the
attestation would of no value in protecting against fraud for
really defective execution. This was also discussed in the
case of Caneda v. CA.
So how do we know which defects are excusable and which
are not excusable?
Abada v. Abaja
It allowed the will on the basis of substantial compliance, the
so called liberal rule does not offer any puzzle, difficulty, nor
does it open the door for serious consequences, the later
decisions do tell us when and where to stop, they draw the
dividing line with precision, they do not allow evidence
aliunde to feel a void in any part of the document or supply
missing details that should appear in the will itself. They only
permit a probe into the will, an exploration within its confines
to ascertain its meaning or to determine the existence or
absence the requisite formalities of law. This clear sharp
limitation eliminates uncertainty and ought to banish any fear
***. In short if the defect can be cured by intrinsic
evidence or by just looking at the will or any part of
the will, the attestation clause, the acknowledgement
then that defect will be cured on the ground of
substantial compliance but if the defect can only be
cured by resorting to evidence aliunde or extrinsic
evidence then that defects can no longer be cured or
excused on the ground of substantial compliance.
Here a reading of the language of the will as translated
would reveal that there was a statement: In our presence
coupled with the signatures appearing on the will itself and
after the attestation clause could only mean that Abada
subscribed to and professed before the 3 witnesses that the
document was his last will and testament and signed the will
on the left margin of each page in the presence of the 3
witnesses by the phrase In our presence meaning to those
witnesses and then as to the number of witnesses that can
be easily be determined by counting the signatures in the
attestation clause and on the margin. So you do not have to
go out of the will to cure that defect. That can be excused on
the ground of Substantial Compliance.
Cagro v. Cagro
If you remember the attestation clause was signed on the
margins and the bottom was not signed. So the proponents

of the will insists that the will is still valid because the
signatures still appear although on the margins and they
invoke the rule on substantial compliance.
However, the SC did not allow the will because even the Rule
on Substantial compliance will not cure the defect, the
signatures on the margin avow as to the fact that the
witnesses signed on the margins for the purpose of
identification but they cannot be taken also to avow the
recitals in the attestation clause because the purpose of the
marginal signature is different and lahi pud ang purpose sa
attestation clause.
Now we cannot ask the witnesses, unsa man pirma na ninyo
sa silong og sa kilid? That is not allowed because it is already
introducing extrinsic evidence and it is no longer allowed.
You just limit your examination on the will itself.
Uy Coque v. Sioca
There was failure to state that the will was signed in the
presence of each other. It was not stated in the attestation
clause. But even if in fact the will was really signed by the
witnesses
in
the
presence
of
each
other,
tinuodgyudperowalanka-sulatsa attestation clause. Is that
defect excusable? How do we cure that defect, we would
need the witnesses to testify. That again will be introducing
extrinsic evidence or evidence aliunde. That is not allowed.
The case of Sano
Failure to state that the will was signed on every page
thereof on the left margin in the presence of the testator,
you need again extrinsic evidence.
Taboada v. Rosal
The allegation was that the witnesses did not sign at the
bottom aside from the margins dapatnaa pa dawsa bottom.
According to the SC, aside from the fact that it is not
mentioned under the law, the signatures on the margins
already attests to the genuineness of the will and the due
execution of the will as embodied in the attestation clause.
So there is no need for the witnesses to sign at the bottom
of the page. In that case, the attestation clause did not
mention the number of pages used in the will. The
acknowledgement portion stated that this will consists of two
pages including the page where the disposition is written. So
that omission was supplied by that statement in the
acknowledgement, so here that statement in the
acknowledgement can be used to clarify or cure the defect in
the attestation clause. So you dont have to go out of the will
to supply the omission in the attestation clause. That
statement in the acknowledgement is what we call intrinsic
evidence so that is curable.
Villaflor v. Tobias
Here the attestation clause was written on a separate page
although the first page where the testamentary dispositions
were written still had a big space, so it was alleged that the
attestation clause was belatedly added. But the SC said, if
you allege that the attestation clause was defective you just
examined the attestation clause itself. It is just a defect in
the form. It is not a fatal defect, as long as all the requisites
of the law are complied with, an examination of the will itself
has substantial compliance.
If you need evidence aliunde to cure the defect to supply the
omissions that defect can no longer be excused on the
ground of Substantial Compliance. So actually, even if it is a
defect on form or substance it still boils down whether or not
it can be cured by intrinsic or extrinsic evidence.
37
Again, if you would need evidence aliunde then that defect
can no longer be excused.
[HOLOGRAPHIC WILLS]
Art. 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)
We only have two wills allowed and recognized in our
jurisdiction: (1) Ordinary or Notarial Wills and (2)
Holographic or Holograph wills.
So based on Art 810, it is entirely written, dated and
signed by the hands of the testator.
It is subject to no other form and does not require
acknowledgement, attestation, marginal signatures,
paging, etc., subject also to no other form and may be
made in and out of the Philippines and again need not be
witnessed.
Advantages of executing holographic wills:
It is easier to make
It is easier to revise because if you want to add,

cancel or alter some provision you can just do so
however the testator must authenticate the same
by his full signature (Art 814)
It is easier to keep secret because it is only the

testator himself who drafts his own will
Disadvantages:
It is easier to forge since there are no witnesses
It is easier to misunderstand
There is no guarantee that no fraud, force,

intimidation, undue influence happened during the
execution of the will and
There is no guarantee that it was made during the

time that the testator was of sound mind.
History of holographic wills in relation to the extrinsic validity

of the will:
Before 1901 during the Spanish Civil

holographic wills were actually allowed
And then when the Code of Civil Procedure Act No.

190 was approved and took effect on August 7,
1901, the Code adopted only Notarial Wills so it
repealed the holographic wills
Code,
But we know that during the effectivity of the NCC

in August 30, 1950, holographic wills are already
recognized
So from 1901 to 1950, holographic wills were not allowed but

again during the effectivity of NCC holographic wills are
already allowed.
So, a holographic will must be entirely written, dated and
signed by the hand of the testator. Aside from that we have
to go to Art 804 that it must be in the language or dialect
known to the testator. Aside from the fact that it has to be
executed with Animus Testandi just like a Notarial Will.
Requirements of Holographic Wills:
I.
IN WRITING
Cursive or shorthand, does not matter what pen or color.
What if pungkol si testator, baba iya gigamit ,tiil iya gigamit

would it still be valid? Yes, as long as it is the writing of the
testator.
What is the purpose of this, it is an efficient guaranty
against all falsifications or alterations in the will.
Everything must be written by the testator, dili pwidi ang
ubang i-typewriter and gisuwat ang uban, dapat written
entirely by the testator.
It would be easy to forge the signature of the testator but it
would be more difficult to forge the entire document. Even
the mechanical act of drafting the will cannot be delegated to
a third person unlike Notarial Wills.
August 3, 2015 (EAE)
So we discussed that a holographic will has to be written
entirely by the hands of the testator. Although, if the testator
has no hands, then as long as it is his writing, he can use his
mouth, or foot, as long again as it is written by him.
So, the formalities mentioned under Art 810, written, dated
and signed by the testator are the only requirements for
holographic wills. Witnesses are not required in holographic
wills. An attestation clause is not required in a holographic
will.
What if we have a will which is entirely handwritten by the
testator, signed by him and dated in his hands also, BUT it
has an attestation clause, and the attestation clause is
typewritten. Is the will valid? Because diba there is a portion
which is not in the handwriting of the testator, the
attestation clause. Is the will valid? It is valid as a
holographic will. It is not a notarial will. Because aside from
the attestation clause, we still need an acknowledgment. We
disregard the attestation because it is not a requirement in
holographic wills. We just consider the testamentary
dispositions, and the attestation clause as a mere
surplusage. Even if it is not in the handwriting of the
testator, it will not affect the will because it is not considered
to be as part of the will. It is again, a surplusage.
II.
DATE
Based on our discussion on notarial wills, is the date

important in notarial wills? What happens if the notarial will
does not indicate a date? It is not important. Why? Because
you can easily determine the date. We have the witnesses,
and then we also have the notary public. The date is not
important in notarial or ordinary wills.
How about in holographic wills? Well it is one of the
requirements. Dated, in the handwriting of the testator.
So dili pwede nga ang date is typewritten or stamped. It has
to be in the handwriting of the testator.
What is the purpose why we need a date in holographic
wills?
1.
Because there is a point n time in our history when

holographic wills were not allowed. Whether the will
is valid as to form, diba we have discussed under
Article 795, that you will have to examine the law in
force at the time of the execution of the will. That is
one reason.
So you said that at the time of the execution of the
will, he may be not of sound mind at that time? But
is it not also possible in a notarial will? How do you
know in a holographic will, if at the time of the
execution of the will the testator was of sound
mind? What is there in a notarial will that is absent
in a holographic will that makes it difficult in a
holographic will to determine whether or not at the
time of the execution of the will the testator was of
sound mind? So there are witnesses who can testify
on the status and condition of the mind of the
38
testator. In a holographic will, no witnesses are
required. And in that case, the only possible
evidence or the starting point to determine whether
or not the testator was of sound mind is the date of
the execution of the will. Without a date, we will not
know that. When did he execute the will.
2.
3.
Because there might be a person who is at times

normal but at times not. He only has lucid intervals.
Kung naa siyay lucid interval, he can validly execute
a will during a lucid interval. But how do we know
that the will was executed during a lucid interval if it
does not have a date? That is the second reason.
If you have two wills which are completely
incompatible with each other, the second will is
deemed to have revoked the first will. But how do
we know which one revoked the other if the dates
are not indicated in the will. That is the third reason
why the holographic will has to be dated.
And again, in notarial wills, there are other persons
who can testify as to the date of the will. In the
holographic will, it is only the testator, and hes
dead already. We cannot ask him. Those are the
reasons why to indicate the date is important in the
holographic will.
How do we write the date? How do we indicate the date in a

holographic will? Date, month then year. What happened in:
Roxas vs. de Jesus
The date "FEB./6 was considered sufficient. Was there a
question there as to the soundness of the mind of the
testator? No. How many wills were alleged to be executed?
There was only one. And obviously this will was executed
after the effectivity of the New Civil Code, because it was
1961.
Here we could apply the rule on substantial compliance
because the contingencies guarded against by the
requirements of specifying the date are not present here.
The date Feb 1961 was sufficient.
How about if it is Christmas of 2005? So when you say
Christmas, thats December 25. Valentines Day 2011. That
would be February. My birthday, like for example the testator
said my birthday, you could also determine. In those
examples, the dates would be sufficient.
Where should the date appear in a holographic will? Is there
a particular requirement as to the location of the date? There
is none. The date can be written on top, at the side of the
signature, right side, left side, theres no particular
requirement.
III.
SIGNATURE
So it must be signed by the testator in his handwriting.

Unlike in notarial will, the testator can affix it with his
thumbmark, with a stamp, with a smiling face, with a cross,
with any mark intended by him to be his signature or
customary signature. He can also affix his initials in notarial
wills.
In holographic wills, how should the testator sign the will?
What should he affix in the will? He should sign his signature
in the will. Ideally, it should be his full signature. For
example his name is Juan dela Cruz. He can write Juan dela
Cruz. But if he customarily signs J dela Cruz, then that is his
full customary signature, then that would also be allowed.
How about if his customary signature is his initial? All initials,
JDC? Mao na iyang pirma, always? Or maybe he intended to
be his signature? Can you accept that in a holographic will?
All initials if that is his customary signature or maybe he
intended that to be his signature? In holographic wills, all
initials are not allowed because it would be very easy to

write the initials. Take note that the best and only safeguard
in holographic wills would be the handwriting of the testator.
So he should write his signature. He cannot just indicate his
signature by initials.
Also, unlike notarial wills, you can have a third person write
your name in your presence and under your express
direction. In holographic wills, can you do that? No because
everything has to be entirely written, dated and signed by
the testator.
Thumbmark, is that allowed in holographic wills? That is not
his writing, so that is not allowed.
Where should the signature of the testator in a holographic
will appear? As we will discuss in Article 812, it should be at
the end, although there can be additional provisions after the
signature.
Can a blind person execute a holographic will? Well as long
as we can comply with the requisites: written, dated and
signed by the hands of the testator. How he can do that, we
dont know. Basta kay mao na siya ang requisites.
Now one principle in holographic wills is discussed in the
case of:
Seangio vs. Reyes
In this particular case, the testator executed a document
entitled Kasulatan ng Pag-alis ng Mana, and that is the only
provision in his will. We have already discussed before that a
document containing a will of disinheritance can still be
considered a will because disinheritance s considered a
disposition of property although it is indirect.
Here, the question among others presented, was whether or
not this was really intended to be his last will. This document
was written, dated and signed in the hands of the testator.
So if it is a last will, it would be a holographic will.
Now insofar as holographic wills are concerned, the Supreme
Court said, All rules are designed to ascertain and give
effect to that intention of the testator. It is only when the
intention of the testator is contrary to law, morals or public
policy, that it cannot be given effect. Holographic wills
therefore, being usually prepared by one who is learned in
the law, as illustrated in the present case, should be
construed more liberally than the ones drawn by an expert,
taking into account the circumstances surrounding the
execution of the instrument and the intention of the testator.
In this regard, the Court is convinced that the document,
even if captioned as Kasulatan ng Pag-aalis ng Mana, was
intended by Segundo his last testamentary act and was
executed by him in accordance with law in the form of a
holographic will.
And being a will, the Supreme Court said, unless it is
probated, it cannot bethe disinheritance mentioned in the
willcannot be given effect.
So, Holographic wills are more liberally construed than
notarial wills. Because again, holographic wills are just
prepared by the testators themselves who do not know the
intricacies of the law in drafting wills. Unlike if we talk about
Notarial wills.
Art. 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.
39
In the absence of any competent witness referred to in the
preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to. (619a)
So probate of holographic wills. Under Article 811, the
minimum requirement during the probate of the
holographic will, at least one witness who knows the
signature and handwriting of the testator should explicitly
declare that the will and the signature are in the handwriting
of the testator.
Take note of the testimony. He should explicitly declare,
meaning he should positively, categorically declare
and identify that this signature is that of the testator.
Maravilla vs. Maravilla
We discussed this before in relation to NOTARIAL WILLS. If
you remember in that case, the witness was asked to identify
the signature of the testator. But the witness could not
declare, could not commit that it is really the signature of the
testator. One reason was that when the will was executed, it
was the first time that he saw the signature of the testator,
and the execution of the will happened around 14 years ago
from the time when he was called to testify. So the SC said
that it is enough that he testifies that at the time when the
will was executed, he was in a position to see. So the test of
position was used. But again, that is a notarial will.
Now were talking of HOLOGRAPHIC WILLS. We have to be
sure that the will presented before the court is really the
same will executed by the testator how many years ago. And
the only way to know, to be sure that it is really the same
will, is to be sure about the signature, the handwriting of the
testator. Because again in holographic wills there are no
witnesses, no notary public, even the testator most of the
time is no longer around. So the only way to know if this is
genuine is to positively and explicitly declare that this is in
the handwriting of the testator. That is the requirement in
holographic wills.
How does the witness explicitly and positively declare that it
is the handwriting of the testator? In your Evidence, you can
identify maybe you saw that it was signed by the testator,
or you can testify that you are familiar with the signature of
the testator. Maybe secretary ka sa testator, so every day
you are confronted with documents bearing his signature,
etc. You are really familiar. That will be the tenor of the
testimony of the witness.
Now the law says probate of holographic wills. What do we
understand by probate?
Probate is the allowance of the will by the court after its
due execution has been proved. Although we will discuss
probate more exhaustively when we go to Article 838. But if
there is a will left by the testator, whether it is a notarial will
or a holographic will, once the testator dies it is not
automatic that the will is given effect, na you are given one
hectare under the will so ipakita na nimo siya sa RoD, okay,
mao ni ang will, gihatag asa akoa ang one hectare, itransfer
na sa akoa ng pangalan. No. The will has to be probated
first.
When you say probate, you file a petition in court. The court
will determine whether or not it is the will executed by the
testator. We have here question of identity, WON this is
the same will executed by the testator in his lifetime.
Question of testamentary capacity, WON at the time
when the will was executed, the testator was of sound mind
and he was at least 18 years old. And third, question of
due execution, WON this will was executed by the testator
intelligently, voluntarily without mistake, undue influence,
fraud, violence etc. Those are the matters taken up by the
court during a probate proceeding.
Again, this is how the probate of a holographic will is done.

At least one witness if the will is not contested.
If the will is contested, the law says at least 3 of such
witnesses. Meaning, witnesses who will explicitly declare that
the signature and handwriting are that of the testator.
In the absence of any competent witnesses because
again, holographic wills need not be witnessed, so there
might be times nawala gyud makawitness. So how can you
prove the authenticity of this holographic will? Will the courts
dismiss the case because no such witnesses are presented?
The law says in the absence of any competent
witnesses, and the court deems it necessary, expert
testimony may be resorted to.
Actually, the court can make its own comparison and
judgment, WON the will is in the handwriting of the testator.
So we have here the will, and the court is also given other
documents written by the testator during his lifetime. So the
court can make its own visual comparison with the will and
the other handwriting. Or again, the court may also require
expert testimony.
Now the first issue here: how do we know that the will is
contested? Is it so difficult to know whether or not a will is
contested? An example would be the case of:
Rivera vs. Yap
Here, there was really an opposition by Jose, but still the
Supreme Court did not consider the proceeding or the
probate as contested, why? Because it turned out that Jose
was not a son or a relative of the testator. He was
considered a mere stranger.
Now in probate proceeding it is required that persons who
intervene or participate should have direct interest. One who
would be directly benefitted or injured by the outcome of the
case. So here, even if he was contesting, but the Supreme
Court did not consider his contest as the contest in legal
contemplation, because again, wala man kayl abot, stranger
man ka. So in the first place wala kay right magapil-apil diri.
Here, the will was deemed not contested. There was no
requirement to present the 3 witnesses.
If the will is contested, the law says at least 3 of such
witnesses shall be required. Now we have the case of:.
Azaola vs. Singson
So is the provision requiring 3 witnesses mandatory?
Merely permissive. Why? Okay, so because during the
execution of the holographic will, no witnesses are present.
And it is not just a matter of presenting 3 witnesses, but 3
witnesses who have the requisite qualification that they must
be able to explicitly declare that the will and the signature
are those of the testator.
So if we cannot present 3 witnesses and the will is contested,
what should the court do? So, expert testimony may be
resorted to if the 3 witnesses cannot be presented. What is
important is that the court is convinced of the authenticity of
the will.
What happened in the case of:
Codoy vs.Calugay
So in this particular case, it is mandatory to present the 3
witnesses. Which is which? Is it mandatory or permissive?
Now if you note, in the case of Azaola vs. Singson, the
Supreme Court also mentioned that even if the genuineness
of the holographic will were contested, we are of the opinion
that Article 811 of our present Civil Code cannot be
40
interpreted as to require the compulsory presentation of 3
witnesses to identify the handwriting of the testator under
penalty of having the probate denied.
As discussed in the case of:
So it was also discussed by the Supreme Court, that if the

genuineness of the will is also contested, still, not
mandatory. But in that case, that is just hypothetical,
because there was no question as to the genuineness of the
handwriting of the testator.
This was also discussed in the case of Rodelas vs. Aransa.
But in the case of Codoy vs. Calugay, it was really the

issue. The genuineness of the handwriting of the testatrix.
The Supreme Court even said that there were really
discrepancies in the handwriting of the testator in the other
documents compared with the will. There were erasures, the
strokes were different, that was really the major issue that
confronted the Supreme Court. So here the Supreme Court
said that it is mandatory to present the 3 witnesses.
How do you determine whether the will is really in the

handwriting of the testator? First you should be able to see
the will. And you cannot see the will by a mere testimony of
witnesses. And, you must be able to compare the will with
other handwritings, other documents bearing the
handwriting of the testator. How can you make a comparison
if you dont even have a copy of the will?
How do we reconcile?
If the issue really, if you are confronted with a case where
the issue is similar to the case of Codoy, na naa gyud didto
sa authenticity and genuineness of the will ang question
whether or not it is the handwriting of the testator, then you
answer in accordance with the ruling of the Supreme Court in
the case of Codoy vs. Calugay. And this is also the later
ruling of the Supreme Court.
But if for example you are given a problem na similar gyud
kayo sa facts sa Azaola case, then most probably the
examiner is referring to the case of Azaola vs. Singson.
But if you really want to top the bar the exam, if the facts
are similar to the case in Azaola, you answer the ruling in
Azaola vs. Singson but you can add, however in the case of
Codoy vs. Calugay, etc. etc.
Again, kung kalimot namo, then the later ruling. (Which is
the Codoy case)
Is there a need to present a copy of the will in court? Of
course it is required. How about if the copy is just a
photocopy or carbon copy, scanned, photostatic copy,
picture sa holographic will? Would that be allowed? Diba you
have already discussed the Best Evidence Rule? Under Rule
130, Section 3 of the Rules of Court, diba it should be the
original that should be presented. Mao na siya ang general
rule, that the original should be presented. But if the original
has been lost, destroyed, cannot be found, you can present
the photocopy. But of course, if for example you are alleging
that the original is destroyed, you should also prove na it
was destroyed not because it was revoked by the testator,
because if it was destroyed by the testator him with the
intent to revoke, then that will cannot be admitted to probate
because it is already revoked.
Rodelas vs. Aransa
The only question here is whether a holographic will which
was lost or cannot be found can be proved by means of a
photostatic copy.
SC: A photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made with the
standard writings of the testator
What if wala na gyud copy na nabilin sa holographic will? It
was destroyed, it was burned completely, but without intent
to revoke on the part of the testator. Wala gyuy nabilin at all.
But one person was able to read the will and he memorized
the contents of the will. Well, theres only one disposition in
the will, so he memorized. All of the properties to A. And hes
willing to testify. Could that be possible? Would that
testimony be admitted to prove the execution of the
holographic will?
Gam vs. Yap, 104 Phil 509
The holographic will cannot be admitted into probate. Why?

Because in a holographic will, the best and the only
safeguard as to its authenticity would be the will itself.
So, if the holographic will is lost or destroyed, and theres no

copy available at all, the will cannot be admitted into
probate. So that is insofar as holographic wills are
concerned.
We can admit a photocopy, picture, carbon copy, because
we can still make a comparison. The court can still make a
visual examination of the will and assess whether or not it is
really in the handwriting of the testator. But again, without
the copy of the will that would be impossible.
How about a Notarial will?
If a copy of the will is lost or destroyed and theres no other
copy available, can we still prove the Notarial will? Can it still
be admitted to probate? Yes. That will be in your Special
Proceedings. If there is no copy of the notarial will left, its
contents can still be proved by the recital of at least 2
witnesses. That will be in Notarial wills.
Also in Notarial wills, when there is no contest or opposition,
the testimony of 1 subscribing witness is sufficient to prove
the will. But if the will is contested, all of the subscribing
witnesses and the notary public should testify. That is the
rule in your Special Proceedings.
Now probate can be done by the testator himself during his
lifetime. It can also be done after his death by his heirs,
executor, administrator etc.
Probate made during the lifetime is what we call antemortem probate. Probate made after death is post mortem
probate. Now if it is the testator himself who probates his
will, his testimony will be sufficient. That would be if the
probate made, or the petition for probate of the will is filed
by the testator himself.
Art. 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)
So based on Article 812, it is very clear that the testator in a
holographic will may add some more provisions after his
signature. So nagbuhat siyag will, he dated and signed the
will, and then he remembered that he forgot to include some
other persons na gusto niya tagaan ug property. So he can
add.
How do we make the additional dispositions valid? The law
says, must be dated and signed by him. So those additional
provisions or testamentary provisions should also be dated
and signed by the testator. So kung walay date, walay
signature, then those will not be considered.
Is it required that each and every additional provision should
be dated and signed pursuant to Article 812? Actually, we
also have Article 813 in conjunction with Article 812. What is
the purpose of requiring that the additional provision should
be dated and signed by the testator?
41
Of course the purpose here is to forestall fraud, insertion of
dispositions by another person. Because without the
signature and the date, it is not clear whether or not those
are really made by the testator and if made by the testator
there was really testamentary intent in the insertion of those
additional dispositions.
Art. 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)
Is it really required that every additional provision should be
dated and signed? According to Article 813, pwede na, you
add, I also give my land to A, signed, walay date; then
later on nakalimot pud siya, I also give my car to X, signed
napud, walay date. And then ang ika-third, I also want to
give my jewelry to M, dated na and signed. So okay lang
nakadtong uban sa ibabaw, after the testamentary
dispositions, walay date basta nay signature, as long as the
last addition is dated and signed. What is the consequence of
that kind of disposition? All those preceding dispositions
which are not dated are considered to have been executed
as of the date of the last disposition. That is the
interpretation.
Pero kung date lang walay signature, then dili siya valid.
Disregard those provisions which are not signed although

dated. Again ha minimum requirement, signed, although not
dated. Basta ang last is dated and signed. That is under
Article 813.
Additional dispositions signed but
not dated, but the last
disposition is signed and dated
A813. Validated
Additional dispositions dated

only, but last disposition is
signed and dated
Only the LAST disposition is

valid.
All previous additional
dispositions are void, but only
those unsigned additional
dispositions are invalid.
Another situation: What happens if after the signature of the

testator, so nagbuhat siyag will, last will and testament, etc.,
then signed and dated, and then after that naa na puy mga
additional provisions after his will, holographic will. The
problem is those additional provisions are not written
by the testator, not in the handwriting of the testator.
What is the effect of those additional dispositions to the will
of the testator? Will these additional dispositions invalidate
the entire will, or should we just disregard these dispositions
which are not written by the testator himself?
We have to make a distinction:
If these additional dispositions are not signed by the

testator himself, that means he is not owning those
provisions. He is not avowing that these provisions
are his. So the consequence is those are just
unauthorized insertions or additions. We just
disregard these additional provisions. Why? Because
if we readily invalidate the will because of these
additional dispositions, then it would be very easy to
invalidate the will of the testator by just the simple
act of writing on his will. Ah wala diay ko nimo
giapil diha, sige sulatsulat anna ko ni siya. I hereby
give to my most beautiful niece my jewelry, etc.
niya because of that wala na ang will, invalidated
na. So that should not be the case. If not signed by
the testator.
The other is, if those additional dispositions are
signed by the testator, what is the consequence? By
signing those additional dispositions, wants them to

be part of his will. So the effect here is that we
have a holographic will which is not entirely written
in the hands of the testator. So this now violates
the provision under Article 810. This will invalidate
the entire will. That will be if these additional
provisions are signed by the testator.
Art. 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)
So insertions, cancellations, erasures or alterations. These
are not allowed in notarial wills. You have to execute a
codicil if you want to do that. If in a holographic will,
allowed. Whats the difference between 812 and 813 with
814.
Ang 814 within the will, the body of the will. Ang kadtong
812, 813, additional after the signature. So you can insert, I
hereby give to A my lot in Calinan, Davao City. Insert nimo,
and D. I hereby give to A and D. That has to be
authenticated with the signature of the testator.
When we say full signature, we still follow the rule in the
signature which we discussed before. It should be his full
signature, or full customary signature, but not initials. Not
thumb mark, stamp, etc. It should be authenticated.
Cancellation, like, I hereby give to A, B and C my house and
lot in Calinan, Davao City.Niya nanlagot siya kay B, gicancel
niya ang pangalan ni B. So thats cancellation. You write
over, or blot out nimo. Erasure, ierasenimo, or kadtong
white, kuris kurisan. Erasure and alteration. You alter, you
change. These matters should be authenticated with the full
signature of the testator.
Situation: What is the effect if there is no authentication?
Like I hereby give to A, B and C my house and lot in
Calinan, Davao City. Niya gierase niya ang pangalan ni B,
niya wala na authenticate
GR: The insertion, cancellation, erasure or alteration
is not deemed effective. As if wala gierase, cancel, etc. So
it is still the original tenor of the will without the insertion,
cancellation etc. that will prevail. It is as if naa gihapon si B
didto. That is the general rule.
Exceptions:
1)
In the case of:

Kalaw vs. Relova
Was it authenticated, the cancellation of the name
of Rosa? No. So the original provision named Rosa,
and then it was cancelled, substituted by Gregorio.
So here, it was argued by Rosa na because the
cancellation of her name was not authenticated,
therefore it was not effective as a cancellation and
the original tenor of the will naming her as the sole
heir should still prevail. Is Rosa still entitled? No.
Even if the cancellation of her name was not
authenticated? Why?
So in that particular case, the Supreme Court did
not use the general rule. Diba the general rule is if
the cancellation and insertion are not authenticated,
then the original tenor of the will shall prevail. It is
as if theres no cancellation, there is no insertion.
The cancellation of the name of Rosa was
considered as a cancellation of a substantial
provision of a will. And because it was cancelled,
nothing of the original tenor of the will remains.
But, because also the cancellation was not
authenticated, the insertion of the name of Gregorio
because it was also not authenticated, Gregorio is
42
also not entitled. Thats an exception to the general
rule.
Actually, if you analyze that, we have not yet
reached the law on revocation of wills. In revocation
of wills, a will can be revoked among others by
overt acts. What are the overt acts of revocation?
Canceling, tearing, burning, obliterating. So
cancelling is an overt act of revocation. You cancel a
will, you cancel a provision. In that kind of
revocation what the law requires would be:
1. The overt act
2. Intent to revoke or animus revocandi
There is no need for the testator to sign the
cancellation, as long as he cancels with intent to
revoke there is already revocation. So in this case of
Kalaw vs. Relova, the cancellation of the name of
Rosa, diba the Supreme Court said it evinces a
change of mind on the part of the testator so
meaning, there was animus revocandi. And he
cancelled that, so that was an overt act. It was
immediately effective. There is no need for an
authentication for that change of mind to be
effective, because it was actually in the nature of a
revocation. When you revoke, you dont need to
authenticate that with a signature. That is in the
case of Kalaw.
2)
In the second exception, the case of:

Ajero vs. CA
The Supreme Court just mentioned here that if the
cancellation is made in the signature or in the date,
then even if not authenticated, what will happen to
the will? Do we just disregard the cancellation? If
the cancellation is made in the date or the signature
of the testator of the holographic will, it will also
cancel the entire will. Why? Because the signature
and the date in a holographic will go into the very
heart of the will. So if you cancel them you are
cancelling a major provision of the will.
Art. 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)
Art. 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)
Art. 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)
We already discussed Articles 815 when we discussed the
extrinsic validity of wills. 815, 816, 817.
Diba as we discussed before in 815, 816, 817, when we
discussed the extrinsic validity of wills, from the viewpoint of
place or country diba we may have a situation where the
testator is abroad, so he may comply with the law of the
place of execution or law of the place of his nationality if hes
a Filipino. There might be a situation when that will is to be
probated, and it is to be probated here in the Philippines, so

our courts will have to look into the laws of the foreign
country. For example the Filipino who executed the will in
the US, he did not follow the law of the Philippines but he
followed the law of the US, and its valid. So if that will is to
be probated in the Philippines, then our courts will have to
know what are the laws of the US insofar as the execution of
that will is concerned. And as we discussed before, our
courts do not take judicial notice of foreign laws. These laws
must be alleged and proved like any other fact, although
there are exceptions.
We also have the doctrine of Processual Presumption, when
in the absence of evidence as to what are these foreign laws,
they can be presumed to be the same as Philippine laws.
Now we may also have a situation where a person leaves
properties abroad and in the Philippines. His will may cover
all his proeprties all over the world. When you discuss your
Special Proceedings, in that particular case, the will, for
example he left properties in the US and in the Philippines,
has to be probated twice. In the places where he left
properties.
For example the executor or the administrator would now
want to dispose of the properties abroad in accordance with
the will. That will has to be probated abroad, in the place
where there are properties to be disposed of in the will. Once
that will is already probated abroad, is it automatic that our
courts will admit the will? Na okay naprobate naman na siya
sa US, diretso nalang nas a Register of Deeds para
makatransfer sa properties na naa sa Philippines. NO. That
same will probated abroad should also be probated in the
Philippines. That is what we call a reprobate proceeding.
If you still remember the case of Suntay vs. Suntay, the will
probated in China? So in the reprobate in the Philippines, the
proponent has to prove among others that the court abroad
is a probate court, what are the procedures of the court
abroad insofar as probate is concerned, etc. So that is in
reprobate.
In Re: The Matter of the Petition to Approve
the will of Ruperta Palaganas
G.R. No. 169144 January 26, 2011
Here, the testator left properties abroad and also in the
Philippines. What they did was they directly filed a petition
for probate in the Philippines. It was contested because
according to the oppositors, there should be a prior probate
abroad. And once the will is probated abroad, there will be a
reprobate here in the Philippines, and these matters must be
proved:
1.
the testator has been admitted for probate in such

foreign country
2.
the will has been admitted to probate there under

its laws
3.
the probate
proceedings
4.
the law on probate procedure in that foreign

country, and proof of compliance with the same
5.
the legal requirements for the valid execution of the

will because the will was executed not in
accordance also with the laws of the Philippines but
in accordance with the laws also of the foreign
country
court
has
jurisdiction
over
the
So these are the matters which must be proved before the

Philippine court in a reprobate proceeding. And these cannot
be done if you directly probate the will in the Philippines,
according to the oppositors.
Was the procedure undertaken by the proponents correct?
43
The Supreme Court said, Our laws do not prohibit the
probate of wills executed by foreigners abroad, although the
same have not as yet been probated and allowed in the
countries of their execution. A foreign will can be given legal
effects in our jurisdiction. Article 816 of the Civil Code states
that the will of an alien who is abroad produces effect in the
Philippines if made in accordance with the formalities
prescribed by law by the law of the place where he resides or
according to the formalities observed in his country.
as it makes the will a bilateral act regardless it is make in a

joint or separate will.
1.
It destroys the character of a will as a strictly

personal act; If they have a joint will, it will now be a
will of two or more testator. The will has to be by one
testator only. If will is made by two or more persons, it
will not become confidential.
The Supreme Court said that there is no prohibition for a

direct probate in the Philippines of that kind of will. Dili
kinahanglan na naa gyud probate abroad and then reprobate
in the Philippines. What is important is that the petition for
the allowance of the will must show the jurisdictional facts,
the names, ages and residences of the heirs, legatees and
devisees of the testator or decedent, the probable value and
character of the property of the estate, the name of the
person from whom letters were prayed, and if the will has
not been delivered to the court, the name of the person
having custody of it. So the jurisdictional facts also. This will
be discussed in your Special Proceedings.
2.
It tends to convert will into a contract; Because the

usual reasons of persons executing joint wills is that
they want mutual or reciprocal propositions in the will
dependent by the grant of another. In which case, the
will becomes a bilateral act, a contact.
3.
It runs contrary to the idea that wills are

essentially revocable. The testator can always revoke
his will for any reason. Among others, the testator can
burn, tear, cancel, etc. If it is a joint will and you want
to revoke your will, you have to think not only of your
will but the will of other person.
Just take note that the will can be probated directly in the
Philippines without having to undergo prior probate before a
foreign court.
4.
It may subject one to undue influence and induce

parricide. Usually, husband and wife execute a joint
will and each knowing the contents, the dispositions,
extent of properties, etc. This would tend to lead for a
spouse receiving less to kill the other. It is the number
one reason since it is against public policy as it induces
parricide.
5.
It makes probate much difficult especially if the

testators die at different times. If you only have one
will and testator dies, the will is admitted to probate and
submitted to the court. In the course of the proceedings,
there are a lot of considerations especially in instances
where the other testator dies 10 years after.
Reprobate or re-aunthetication of a will allowed in a

foreign country is different from that probate where the will
is presented for the first time before a competent court.
That is the ruling in the case of Palaganas.
August 6, 2015 (RJV)
Article 818. Two or more persons cannot make a will
jointly, or in the same instrument, either for their reciprocal
benefit or for the benefit of a third person.
Article 818 talks about joint wills. What is a joint will? It is a
will executed by two or more person and jointly signed by
them.
The testamentary provisions of at least two testators are
within one document and in the end, they sign. Under Article
818, joint wills are prohibited. When we say joint wills, we
are referring to the extrinsic validity of will, referring to the
form. You cannot have the form of a joint will in the
Philippines and whether their individual or reciprocal benefit
does not matter.
Joint will. As defined, a joint will is one wherein the same
testamentary instrument is made as a will by two or more
persons jointly executed and signed by them.
Mutual Wills or Reciprocal Wills. A will of two persons
wherein the disposition of one is made in favour of the other
and the other also makes dispositions in favour of the other.
It is not necessarily void. It is only void when:
(1) They are embodies in the same will; and
(2) They are in the nature of disposition captatoria.
Example: A (testator) gives all his properties to B; and B also
gives all his properties to A, so they executed for mutual or
twin will. They are giving to each other but as long as their
will is not embodied in a joint will, it is valid. What is wrong
is when they execute a will containing their testamentary
dispositions and jointly signed by them. Then that becomes
void, not because it is a mutual will but because it is a joint
will.
Another example: In a will, A gives all his properties to B
with the condition that B will also give his properties to A. Is
that will valid? NO. Even if they are separately made, they
are void because it contains disposition captatoria (in relation
to the individuality characteristic of wills). This is prohibited
Reasons for Prohibition:
DELA CERNA vs POTOT

Sps dela Cerna executed a joint will and when the husband
died, the said joint will was admitted for probate and
attained finality. When the wife died and the same joint will
was presented but denied probate.
The Supreme Court said although the court recognizes the
previous allowance of the will for probate, the said initial
grant of probate does not constitute res judicata since it
involves will of two different persons. The will of the husband
is distinct from that of his wife although embodied in the
same document. What is deemed final and executory in the
first probate was the admission for probate of the will of the
husband and it willnot bar other proceeding to determine
whether the will of the wife is valid.
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.
Article 819 also refers to joint wills and it states that wills
prohibited under Article 818.
Take note, it talks about wills executed by Filipinos in a
foreign country shall not be valid in the Philippines.
Remember the rule in Article 17, if the will is extrinsically
valid in the place of execution, the will is valid in the
Philippines Lex Loci Celebrationis rule. However, the place
of execution of joint will is the exception to that rule. Since
the law says even if the will is valid in the place of execution,
such joint will shall not be recognized in the Philippines.
44
As to Filipino citizens, joint wills are not allowed. Even if it is
executed in a place which allows or disallows execution of
joint will. Absolutely, for Filipinos, joint wills are prohibited.
document, perjury or false testimony. (n)
As to Foreigners, if he executes a will abroad and the laws

abroad recognizes joint will, thus, the will is valid as to the
foreigner. If a joint will is executed by him in the Philippines,
he can follow:
1.
Any person not domiciled in the Philippines. This

disqualification applies only if the will is executed in the
Philippines. The reason is that these persons will be later
on called to testify in the probate proceedings. If they
are absent, they cannot be reached by our court
processes. Thus, they must be domiciled in the
Philippines so that they will be available to testify during
probate proceedings. This does not apply to wills
executed abroad since the law enforced at the place of
execution applies. And when in abroad, it is difficult to
find someone domiciled in the Philippines to be a
witness.
2.
Those who have been convicted of falsification of

a document, perjury or false testimony. The
conviction contemplated here is final because if it is still
in appeal, there is a possibility that the conviction will be
reversed. Equally important for you to know are the
crimes mentioned falsification of a document, perjury or
false testimony. These crimes go to the very integrity of
the person and his capacity to tell the truth. If you are
convicted with falsification or perjury, there is a stigma
that you have no integrity. If you are convicted of
murder or drug use, you can be a witness because even
if you are a murderer, you are not a liar.
1.
Law of his residents
2.
Law of the place where he may be
3.
Law of his nationality
Thus, if his national law recognizes joint wills, in one view, it

is valid in the Philippines and there is also second view
saying, the will is not valid as it is prohibited in the
Philippines and applying Par 3 of Article 17, the said joint will
is not valid. (Note: There is no prevailing view)
These are the disqualifications:
Article 17. xxx 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)
As to Filipino and Foreigners, if a joint will is executed by
them in a place where joint wills are allowed, the said will is
not valid as to the Filipina and valid as to the Foreigner.
Effect of pardon:
with falsification
testimony by final
he be a witness?
pardon.
Subsection 4. - Witnesses to Wills
If the reason of pardon is executive clemency, it does

not erase the fact that you are a liar. Still, you are not
qualified.
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)
Article 820 refers to Article 805 on notarial will as we do not
need witnesses for holographic wills. The provision refers to
the marginal witness, instrumental witnesses, etc for notarial
wills.
The provision says:
1.
Any person of sound mind. Just refer to our previous

discussion regarding soundness of mind;
2.
Age of eighteen years or more.

Just refer to our topic on age of testator and apply it to
witnesses.
3.
4.
Not blind, deaf or dumb. Although a blind person can

be a testator, he cannot be a witness. He should not be
deaf because it will be very difficult to present his
testimony in court as it needs a sign language
instructor in the probate proceedings. A witness is also
not dumb because even if he can see, talk or hear, but
he cannot give an intelligent testimony.
Able to read and write. Those illiterate are not
allowed to be a witness.
The following qualifications should be present at the time of

execution of the will. If the witness becomes insane after the
execution of the will, the will is still valid.
Article 821. The following are disqualified from being
witnesses to a will:
(1) Any person not domiciled in the Philippines;
When a person has been convicted

of a document, perjury or false
judgment, but he was pardoned, can
It depends upon the reason of the
If the reason of pardon is your innocence, you can be

qualified as a witness because you did not commit the
crime in the first place.
3.
(not in the provision) Notary Public as Witness. A

notary public is disqualified to act as a witness (Cruz vs.
Villasor case). In all cases, if a notary public is also a
witness, he is disqualified as a witness but not as a
notary public. If there are only 3 witnesses and one of
them is a notary public, the will is void because it falls
short from the minimum requirement as to the number
of witnesses.
If there are 4 witnesses and one of them is notary
public, the will is still be valid.
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 we mentioned, the qualifications of a witness should be
present at time of the execution of the will. It does not
matter if before they were not be able to read or write but at
the time of the execution of the will, they can now read and
write.
However, this will affect their qualification as they testify
during probate if the qualifications were lost. If they
eventually become insane, they cannot testify in the probate
proceeding. Take note, the qualifications of witnesses during
the execution of the will are different from the qualification
of witnesses during trial. The qualification during trial is
provided in the Rules of Court:
(2) Those who have been convicted of falsification of a

45
Rule 130. Section 20. All persons who can perceive or
perceiving, can make known their perception to others, may
be witnesses.
In addition, if it is a holographic will, we are not talking
about witnesses qualified under Article 820. But there are
witnesses needed for probate of holographic wills. The
qualification is that they can explicitly and positively declare
that the handwriting and signatures in the will are those of
the testator.
As already discussed, what if all the witnesses during the
execution of the notarial will are dead, insane or does not
reside anymore in the Philippines? Under the Rules of Court,
other witnesses will be allowed.
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)
In cases where a witness in a will is also a devise or a legacy
or an heir, is the will valid? The law says the witness is still
qualified but he forfeits his device, legacy or inheritance
(Personal experience story)
Remember that we are talking here of inheritance as to the
free portion. If you are a compulsory heir and also a witness,
you can still claim your legitime because the legitime is
provided for by law. You only forfeit those portions over and
above your legitime.
Take note also, if he is a witness and the person who can
claim is his spouse, or parent, or child, such claim is also
forfeited but he can still be a witness.
The reason why a person who witnessed forfeits his device,
legacy or inheritance is the exposure to conflict of interest. If
you are a witness, you are supposed to testify the due
execution of the will. If you know that you will receive
something from the will, then, you will really testify on its
due execution.
If there are more than 3 witnesses, the person sough to
witness or his spouse, or parent, or child does not forfeit his
or their device, legacy or inheritance as the law says, unless
there are 3 other competent witnesses in the will. If there
are 4 witnesses and one of those is a legatee, devisee or
heir, he can receive the device, legacy or inheritance
because even if he joins as a witness, the will is still as there
are at least 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)
The creditors can be witnesses of a notarial will. For example
in a will, there is a provision as to the payment of the debt of
the testator to the creditor and the creditor is also a witness
to the will. What are the effects of this? Will the creditor be
qualified to what is allocated to him? Is the will still valid?
The creditor is qualified to what is allocated to him and the
will is valid. The creditor, even if not stated in the will that
the will be paid, can still go after the estate of the deceased
because prior to the payment of legatees, devisees, etc,
there is a need to pay the obligations.
Please read the case of:

Caluya vs. Domingo
SC said: Indeed, no interest of any kind was created by the
will in favor of Segundino Asis, nor did it convey or transfer of
any interest to him. It simply mentioned a fact already
consummated, a sale already made. Even if, however, the will
had conveyed an interest to Segundino Asis, it would not have
been for that reason void. Only that clause of the will
conveying an interest to him would have been void; the
remainder could have stood and would have stood as a valid
testament.
But if the creditor, aside from the payment, is also given a
legacy or devise, then if he is a witness, he forfeits whatever
grant he may received from the will.
August 13, 2015 (GG)
Subsection 5. - Codicils and Incorporation by
Reference
Art. 825. A codicil is supplement or addition to a will, made

after the execution of a will and annexed to be taken as a
part thereof, by which any disposition made in the original
will is explained, added to, or altered.
So as defined in Art. 825, it is a supplement or addition to a
will. So, it is made after the execution of a will. You cannot
make a codicil before you make a will. It should follow not
precede the execution of the will. The codicil is a part of the
will, it may also explain the provisions of a will, or it may
modify the provisions of a will. As we have discussed before,
for example, if you want to add some more dispositions in
your notarial will, you cannot do that by inserting notarial
will. You need to execute a codicil.
Now, what if the provisions of the original will and the codicil
are not compatible with each other, they contravene each
other, what will prevail? Is it the codicil or the original will? It
is the codicil. As I have mentioned, one purpose of the codicil
is to alter or modify the provisions of the will, or amend the
will. So because the codicil is the later expression of the will
or the last wishes of the testator, then the provisions of the
codicil should prevail over that of the will.
Art. 826. In order that a codicil may be effective, it shall be
executed as in the case of a will. (n)
So what are the formalities required by law for codicils? Art.
826 says it should be in the form of the will. So, you can
have a notarial codicil, you can also have a holographic
codicil. So you follow the formalities of a notarial will or a
holographic will.
Codicil came from the word codex which means written
will. But, it is not literally a written will, it is just intended to
supplement or modify, but in reality, the provisions of the
codicil may be longer than the provisions of the original will.
Do not imagine na mura siyag codal.
If you have a notarial will, can you supplement it with a
holographic codicil? YES! There is no prohibition.
If you have a holographic will, can you supplement it with a
notarial codicil? YES! There is no prohibition as long as the
notarial codicil is in itself valid. Meaning, it has complied with
the formalities required by law for notarial wills or
holographic wills, as the case may be.
Art. 827. If a will, executed as required by this Code,
46
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: xxx
Article 827 talks of INCORPORATION BY INFERENCE.
As a rule, only those documents which are executed in the
form of a will can be probated. If the document is not in a
form of a will, it cannot be probated. But an exception to
that rule is the rule provided in Article 827. It is because
even if the document incorporated by reference in a will is
not in a form of a will, that document can also be probated
as part of a will.
REQUISITES FOR
VALID INCORPORATION BY REFERENCE
(1) The document or paper referred to in the will must be in
existence at the time of the execution of the will;
So dapat na una ka-exist ang document to be incorporated
because precisely, the law allows inocorporation by reference
for convenience.
Like for example, the testator has already made an inventory
of all his properties, and because he has several properties
his inventory consists of 100 pages. So, murag na xag libro.
Now he wants to execute a last will and testament, and the
subject of this last will and testament would be those
properties already inventoried. Now, in his last will and
testament? Does he have to enumerate again in that will all
the properties in his inventory? That is one purpose of
incorporation, you dont have to copy all those provisions in
the inventory. You can just mention in the will that on
august 13, 2015, I executed an inventory consisting of 100
pages, so those properties mentioned in the inventory are
the same properties subject of this last will and testament.
So, no need to copy again. So that is the reason why the
document has to be in existence already because that
document is still to be executed then you might as well write
that down in your will. Okay, so it has to be in existence
already 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;
Of course, in number 2, the will must clearly describe So it
can really be identified as the document as referred to by the
testator.
(3) It must be identified by clear and satisfactory proof as
the document or paper referred to therein; and
Again, to assure that it is the same document.
(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)
Take note of number 4, so ang document must be signed in
each and every page. Again, not only by the testator but also
by the witnesses but the law says EXCEPT in case of
voluminous books of account or inventories.
Does that mean to say that if you have a 200-page inventory
that inventory need not to be signed by the witnesses
because the law says except in case of voluminous books
etcetera? NO! What is exempted here is not the signing but
the signing in each and every page. So meaning, they still
need to sign a sufficient number of pages but not each and
every page, because again of the volume of the document
involved. But again, there should still be signatures.
Now, can you incorporate by reference into a holographic will
a document which is not in a handwriting of the testator?
Naa siyay inventory na naka-computerized but he executed a
holographic will, can you incorporate that document into the

holographic will? Remember, the document to be
incorporated, unlike a codicil na it should be in itself valid as
a will. Kaning document incorporated by reference is not in a
form of a will. Okay, so it is really now being incorporated
into a will by the process of incorporation by reference. AND,
under Article 810, the holographic will must be entirely
written and signed by the hands of the testator. So, you
cannot incorporate by reference into a holographic will, a
document which is not in the handwriting of the testator
because it would now violate the provisions of Art. 810. But if
the document to be incorporated is also in the handwriting of
the testator, theres no problem, you can incorporate.
If you are talking of a notarial will, its okay as long as you
comply with the requisites under Art. 827.
Subsection 6. - Revocation of Wills and Testamentary
Dispositions
Art. 828. A will may be revoked by the testator at any time

before his death. xxx
What is revocation? Whose act is revocation? Who revokes
the will?
Okay, so, it is the testator who revokes his will. It cannot be
revoked by some other person.
REVOCATION The act of the testator in terminating the
potential capacity of his will to operate upon his death.
So, potential capacity because at the time when he executes
the will even if he already signed the will, signed by the
witnesses, acknowledged before the notary public, still it is
not operative. It will take effect only upon his death. So, by
revocation, he terminates the capacity of that will coming
into effect or from being effective. So, at any time before his
death, the law says. Of course he cannot revoke his will
after his death. He can only do it during his lifetime. Because
again, it is only the testator who can revoke his will.
Now if we go to Art. 830, there is in number 1, by implication
of law. So here, the law implies revocation but still the act
here from which implies revocation is the act of the testator.
Here, the acts of the testator, the law implies that he
intended to revoke his will. So we will discuss that later. So
lets go back to 828.
Art. 828. xxx
Any waiver or restriction of this right is void.
You cannot subject the right of the testator to revoke his will
to any agreement, prohibition, etcetera. It is almost
absolute. Why almost absolute, not absolute, Almost lang?
Naa pay laing limitation under right to revoke? YES! I think
we discussed this before when we discussed Did we? So,
the testator to effectively revoke his will, he should have
animus revocandi, so intent to revoke. If you have animus
revocandi, you have soundness of mind because you should
know the consequence of this act, the nature of the act of
revocation. And if the testator, in the meantime, loses the
soundness of his mind like if he becomes insane, he cannot
effectively revoke his will while in the state of insanity. In
that case, such revocation is not valid. So that is the only
limitation of the right of the testator to revoke. Kung na ayo
na siya, he can revoke for any reason. Even if no reason, if
dili na siya ganahan sa imoha. Okay, so he can revoke. That
is the nature of revocation.
So let us go to the laws governing revocation.
47
Art. 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)
So we discussed before, the laws governing the intrinsic
validity of the wills and the extrinsic validity of the will. So
now let us now discuss the law governing revocation. When
you speak of revocation, so, there are only two things to
remember, if the revocation is done in the Philippines or if it
is done outside the Philippines or abroad.
When the revocation is done in the Philippines.

Here is no problem. You only have to remember one
law, you should revoke it in accordance with Philippine
laws.
When the revocation

Philippines.
is
done
outside
the
Then you also have to take into account if the testator is

a resident of the Philippines or non-resident.
If you are a resident of the Philippines and you
revoke the will outside the Philippines, what law
should you observe for the revocation?
You can observe the law of his domicile. If he is

the resident of the Philippines he can observe
Philippine law.
You can also follow the law of the place of
revocation. Kung asa niya gi-revoke ang iyahang
will, he can follow the law of that place.
If he is a non-resident?
o
Law of his domicile. Actually this is also

applicable, if the testator is a non-resident. He can
follow the law of his domicile or residence. So if he
is the resident of the US and he revoked his will in
the US, he can follow the law in the US.
In addition, he can follow the law of the place of
execution (where it was made). Kung asa niya
gi execute ang will, he can follow the formalities
involved in that law where he made the will.
REMEMBER: In revocation, we dont consider the national

law of the testator. We only consider his domicile. So the law
of the country of the testator has no significance in
revocation.
Art. 830. No will shall be revoked except in the following
cases: xxx
So, how can the testator revoke his will? What are the modes
of revocation? There are 3 modes of revocation under Art.
830.
(1) By implication of law; or
It may also be BY OPERATION OF LAW. Here because the
testator did some act, the law presumes that because he did
that particular act, he intended to revoke.
Example 1:
He gave a specific land to A in the will as a devise. Now after
he devised it to A, he sold it to X. So what will now happen
to the devise of the land to A? By operation of law, the
devise to A is revoked.
What if the testator did not have that intention to revoke the
devise? He just sold it because he needed money at that
time and he had the intention to repurchase it in the future
so he may give it to the devisee. So which will prevail, the
intention of the testator or the presumption of law? Because
the law presumes that by such an act by subsequently selling
the property, the testator intended to revoke the devise but
in reality, there is no such intention. Here, the presumption
of law will prevail. So how about the intention of the
testator? Authorities say that, he should make manifest his
intention by some overt act. Like for example, kay wala man
jud kay intention to revoke the devise, then under the law on
legacies and devises, if the sale is with a right of repurchase,
there is no revocation. Because by reserving the right of
repurchase, the testator really intended to give effect to the
devise, so the law can see from that reservation of the right
to repurchase that there is intention to honor the devise. So
without that, if it is just a deed of absolute sale, the law will
presume revocation. So you should make manifest your
intention by some overt acts.
Example 2:
In case of preterition. There is in a concept of preterition that
if in a will, a compulsory heir in the direct line is omitted, the
institution of heirs in the will shall be allowed. In short, if
there is preterition, the will cannot be given effect. Even if it
is not the intention of the testator to annul his will, the law
annuls the will because of preterition. So here we have the
revocation by operation of law.
(2) By some will, codicil, or other writing executed as
provided in case of wills; or
Or we call it REVOCATION BY A SUBSEQUENT DOCUMENT
OR INSTRUMENT, so here, the testator made a first will, and
the first will is valid, and then subsequent to that first will, he
made another will, a second will. So in a revocation by a
subsequent document or instrument, the second will or
document or instrument, revoked the first will either
impliedly or expressly.
When can there be revocation by a subsequent document or
instrument?
REQUISITES FOR REVOCATION
BY SUBSEQUENT DOC/ INSTRUMENT
1.
The first document or instrument must be valid as

will.
2.
The subsequent document or instrument should

be in the form of a will. It should be valid as a
will.
Because if it turns out did that the second instrument
did not comply with the formalities of a will, then it could
not validly revoke a previous will. It may be express or
implied revocation.
When can there be express revocation? For example in
the will, the testator gave his properties to A, B, and C.
And then he made a second will, in it he gave his
properties to X, Y, and Z and he even mentioned in the
will that his last will and testament revokes and
supersedes all other instruments, codicils, or wills,
executed before this day. We have what we call a
revocatory clause in the second will. If we have a
revocatory clause in the second will, there is no doubt
that the second will revoked the first will.
Another type of revocation is implied revocation as
opposed to express revocation. When we say implied
revocation, we do not have a revocatory clause in the
second will or document or codicil. But the provisions of
the first will and the second will are completely
48
incompatible with each other. In the first will, the
testator said I give to A all my properties. In the second
will, I give to B all my properties. So it is still all but
now to B, so how do we construe these wills? Can they
stand together? Can we say share na lang mo kay ikaw
man si first ikaw man si second para fair? NO! We
cannot share because that is not the intention of the
testator, the intention of the testator is to give only to
one. And to whom? They cannot be reconciled. They are
completely incompatible. So under the law on
revocation, the 2nd will must have revoked the 1st will
because the 2nd will is the latest expression of the
intention of the testator. So that is implied revocation.
The subsequent document or will must be valid as a will,
again because even they are completely incompatible
with each other but the second document or second will,
for example it is a notarial will, and it only has two
witnesses there, so it is not valid as a will. Any
revocation contained in that document will not be
effective. So it has to be valid as a will.
of the testator. Was the 1990 notarial will validly

revoked? In that case NO because the 2nd will cannot be
probated even if it was validly executed, it cannot be
probated. A will get the properties of the testator
because the notarial will was not validly revoked by the
holographic will.
(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.
Or we call this revocation BY OVERT ACT. There are four
overt acts mentioned in paragraph 3 of Article 830. We have
burning, tearing, cancelling, or obliterating.
BURNING, at least a portion of the will bears the

fact that it was burnt. It must appear that it was
really burnt even if the will is not entirely burnt or
you can still read a part of the provisions of the will.
The second will must be probated.
How is it different from a requirement that the second

will must be valid as a will? Diba, the second requisite is
the second document must be valid as a will. Why do we
have this 4th requisite?
TEARING, you dont have to tear it into a thousand

pieces. You can even tear it in two parts and still,
the will can be considered as revoked.
CANCELLING, so you cancel llke how you cancel

your answers in your exams. You put a line across
the will, so thats cancelling.
OBLITERATING, you obliterate the words in the will.

Even if the words can still be read after the testator
tried to obliterate the will is still revoked as long as
there is an act of obliterating manifested in the will.
3.
The second document or instrument must

mentioned either contain a revocatory clause or
be completely incompatible with the first will.
4.
Okay for example the testator made a will in 1990, it is a

notarial will, in this will he gave all his properties to A. In
year 2000, he made a holographic will, this time giving
all his properties to B. Assuming that the first will
complied with all the requisites for notarial wills and the
second will complied with all the requisites for
holographic wills, so it is valid as a holographic will. But
you cannot reconcile the two wills because in the 1st all
properties to A, in the 2nd all properties to B. So the
second will must have revoked the 1st will.
Now assuming the holographic will was burnt,
completely. Nasunog siya and abo na lang ang nabilin
and the testator died. So the will is probated and ***
wala nay copy sa will because it is a holographic will, he
only made one copy. So a person saw it before it was
burnt and memorized all the contents of his will. So now
they filed for the probate of the holographic will. What is
the effect if you cannot present the copy of the
holographic will, even in the presence of the witness
who is ready to testify to its contents?
Gan vs. Yap
The holographic will must be presented in court even if
not the original, you can present a carbon copy, a
photocopy, and whatever, as long as there is a copy.
Because in holographic wills the only safeguard in the
authenticity of the will is the will itself. It enables the
court to compare the writings of the testator in the will
with the other handwritings in the document executed
by the testator. So he cannot make a comparison if he
cannot see the will.
The witness cannot testify Your Honor, ang agi sa
testator kay pinahiwi ug ang iyahang letter E kay ingani. [Translation: Your Honor, the testators penmanship
is cursive, he writes letter E this way. (CHAROOOT!)] He
cannot testify like that. There has to be a physical
examination.
So even if the holographic will was validly executed, it
cannot be probated. So now, who will get the properties
Now, take note that revocation under this mode of

revocation, we have the overt acts plus the intent to
revoke or animus revocandi. They should go together.
Overt act alone without intent to revoke will not produce
revocation. Intent alone without overt act also will not
produce revocation. Even if the will was torn, if it was torn
accidentally without intent to revoke, then there is no
revocation.
One example given by authorities is: The testator wanted to
revoke his will, so he had all the intention to revoke his will.
His will was sealed inside an envelope. Then he threw the
envelope into a stove which was burning. And then when he
saw it starting to burn, the testator left and he was satisfied
na the will was really burnt. And then a person, who is an
heir, but a voluntary heir only, he did not want the will to be
revoked. He tried to save the will, and when he opened it,
the will is still intact. Now, the question is, was the will
revoked? Diba, overt act plus intent to revoke. The overt act
must be made manifest in the will. Here, there is no act of
burning which is manifest in the will, only the envelope, but
the envelope is not part of the will. Here, there is no
revocation by overt acts. But in so far as the heir who
prevented the testator in revoking his will is concerned, there
is revocation by operation of law because that act of the heir
is one of the grounds for disqualification under the law on
incapacity to succeed. So, there is no revocation by overt act
but there is revocation by operation of law in so far as that
heir who prevented the testator in revoking his will is
concerned. Again, both act and intent.
Now, the law mentions only 4 acts: burning, tearing,
cancelling, or obliterating. Can there be other acts which
could be used to revoke the will? Are we limited to the four
acts mentioned?
ROXAS vs. ROXAS (GR 4808177)
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It was mentioned there that the overt acts may not limited to
burning, tearing, cancelling, or obliterating. In this case, the
act of the testator was crumpling. Gi-kumot niya iyahang last
will and testament.
The court here impliedly admitted the act of crumpling as an
act of revocation because there was also animus testandi.
So, as long as the act is an act of destruction with animus
revocandi, that can be considered an act of revocation.
Art. 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 latter wills. (n)
We have already discussed this under Art 830 par. 2,
revocation by subsequent document or instrument. This is
the CONCEPT OF IMPLIED REVOCATION; that the two
documents are completely incompatible with each other. So,
there is no express revocatory clause in the 2nd will, then
there is only implied revocation.
There may also be total or partial. For example when only
portions of the first will are affected of the inconsistency in
the second will. Only those which are affected are considered
revoked.
Art. 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)
There is a revocation in a subsequent will. Again we are
talking here of revocation by a subsequent document or
instrument. The first will is revoked by a second will.
Example:
In the first will the testator instituted A, B, and C to his entire
estate. In the second will, the same testator instituted X, Y,
and Z to the same entire estate. So, under the concept of
implied revocation by a subsequent document or instrument
the first will has been revoked by a second will. The
consequence of that revocation is that A, B, and C will no
longer be entitled to receive from the testator. It will now be
X, Y, and Z. However, X, Y, and Z became incapacitated.
Maybe X predeceased, Y became disqualified, and Z
renounced his inheritance. So, we now have an ineffective
will, the second will. The second will is still a valid will but
now it is considered an ineffective will because of the
predecease, incapacity, repudiation of the heirs instituted in
that will.
Would it now mean that the first will is revived? Will it be
now A, B, and C? The law says NO! The first will still remains
to be revoked. 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 or
by their renunciation. So this is what we now call the
DOCTRINE OF ABSOLUTE REVOCATION. So the
revocation still stands.
Art. 833. A revocation of a will based on a false cause or an
illegal cause is null and void. (n)
So a REVOCATION based on a FALSE CAUSE or an
ILLEGAL CAUSE, meaning, he was mistaken in the reason
for his revocation. The law says that revocation fails, that
revocation is not effective. It is as if there is no revocation.
In relation to that, we have the DOCTRINE OF
DEPENDENT RELATIVE REVOCATION. It says, the rule is
established that where the act of destruction is connected
with the making of another will so as fairly to raise the

inference that the testator meant the revocation of the old to
depend upon the efficacy of a new disposition intended to be
substituted, the revocation will be conditional and dependent
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 remains
in full force and effect.
Example:
The testator made a will, a notarial will in 1990. In that will
he instituted A as his heir. So the will is valid, it complied
with all the formalities required by law. Then, he changed his
mind. He revoked his will. So he executed another will in
year 2000. This time leaving all his properties to B. It is also
valid. It complied with all the requisites required for notarial
will. So here, we have a subsequent document or instrument.
This instrument is intended to revoke the first will. Now,
thinking that okay na iyahang second will, he burned the first
will with intent to revoke also on the belief that the second
will is already valid. It turned out that the 2nd will is not valid,
it lacked one formality, for example, there are only two
witnesses or there are margins left unsigned. So it is not
valid.
So the question here is: who is entitled to the estate? Will it
be A or B or if none of them, the legal heirs? Was the first
will revoked by the second will?
First, can you give the estate to B? No, because the second
will is not valid. Definitely, B is out of the picture. But it was
contended, since when you say revocation by a subsequent
document or instrument, one of the requisites for the second
document to revoke the first will is that the second document
must be valid as a will. As we said, this is not valid since it
lacked the formalities. So, definitely, here the 2nd will did not
revoke the 1st will. But it was argued that yes, the first will
was not revoked by the 2nd will, but the first will was revoked
by an overt act since it was burned by the testator. So the
first will was revoked not by a subsequent will but by an
overt act. So the estate should now go to the legal heirs. Is
this contention correct?
MOLO vs. MOLO
The SC used the Doctrine of Dependent Relative Revocation.
Here, although he intended to revoke the 1st will by the overt
act of burning but such act of burning was prompted by the
false belief of the testator that the 2nd will was already valid
that is why he burned the first will. But it turned out that the
second will was not valid, so the reason for the revocation
fails and the 1st will is not validly revoked. So the cause of
the burning was caused by the false belief. So that is the
meaning of the Doctrine of Dependent Relative Revocation.
From full text: xxx the revocation of the old to depend
upon the efficacy of a new disposition intended to be
substituted, the revocation will be conditional and dependent
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 remains
in full force and effect.
So that is an example of revocation based on a false cause.
Art. 834. The recognition of an illegitimate child does not
lose its legal effect, even though the will wherein it was
made should be revoked. (714)
I think we discussed this before in the essential elements
and characteristics of wills. As we mentioned, for a document
to be considered as a will it must contain the disposition of
property. So when it only contains the recognition of an
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illegitimate child, that is not a will, therefore, to be effective,
that does not have to comply with the formalities of wills.
Under article 834, also even if the will where the recognition
is made shall be revoked, the recognition shall still stand
because the recognition of an illegitimate child is not a
testamentary disposition. It does not need a probate to be
effective.
Under the Family Code, we have there evidence required to
prove illegitimate filiation. We have a public record of birth,
or a private handwritten document, or a private document
subscribed by the putative parents, or a will where there is a
recognition of an illegitimate child is valid as a recognition
although it is not valid as a will.
Example:
You have a testator who made a will when he was insane, he
was 18 years old but insane. So the will is not valid.
Subsequently, he was cured. He regained sanity. He wanted
to keep the will which he made when he was insane. He
adopted the will, he even showed it to his relatives. Then, he
died. Can that will be probated? Is that will valid?
It is not valid. He made it during the state of insanity. Even if
he regains sanity later on as long as he was insane at the
time that will is made, the will remains to be void.
Subsequent capacity does not validate the will.
What is the proper thing to do in that case since he really
wanted that will to become his last will and testament?
The proper way for him to adopt that will is by republication.
He should republish the will. We have the concept of
REPUBLICATION. It is the re-establishment of 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.
Subsection 7. - Republication and
Revival of Wills
Art. 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)
It talks about a will which is void as to its form. The law says
he cannot republish without reproducing in a subsequent will
the dispositions contained in the previous one which is void
in its form. Here, the law talks of the one mode of
republication; this is EXPRESS REPUBLICATION or
REPUBLICATION BY RE-EXECUTION. This is required if
the original will is void as to form.
When is the will void as to form? When the formalities
required by law has not been complied with. If it is a notarial
will, the formalities required under 804-808 are not complied
with. If it is a holographic will, the formalities required under
810-814 are not complied with. So these are the will which
are void as to form. Like wala na notaryohan ang notarial
will, or the attestation clause lacks the statements required
by law. If it is holographic will, maybe the date is stamped.
So, void as to form.
How about if the testator was insane at the time of the
execution or he was not 18 years old? Well, that will is also
void but not as to form. Void as to form does not include the
testamentary capacity of the testator. So under Art, 835, if
the will is void as to form, the only way to republish the will,
is to reproduce all the provisions of the old will. This time,
you have to comply with the formalities. Again, that is
express republication or republication by re-execution, you
have to re-execute.
If the will is void but not as to form, how do you republish

the will? That revoked will is not void as to form, like the
example was that when the testator was insane, and he
wanted to give effect to it. Like if he tore it apart and
realized he wanted to make it his last will and testament.
You have to republish the will. How? You can republish that
kind of will by implied republication or REPUBLICATION BY
REFERENCE or IMPLIED. So in republication by reference,
you need not copy all the provisions of the old will, you just
state I executed a last will and testament last Nov. 1, 2010
that will is already revoked or at that time I was insane or

minor, but I want to give effect to that will, so all the
provisions of the old will dated Nov. 1, 2010 are hereby
reproduced and republished. So you need not copy the
provisions of the old will. Although you have to have a copy

of the old will to have a reference. How would you know the
contents of the first will since you did not have to write it in
your 2nd will. You can annex it. You dont to re-execute
everything. That is allowed if the will is void but not as to
form.
If for example, you really want to re-execute it? It is void but
not as to form? Is it valid? YES, there is no prohibition. But
what you cannot do is if the old will is void as to form and
then you just republish it by reference. That is not allowed. It
should be by republication.
Art. 836. The execution of a codicil referring to a previous
will has the effect of republishing the will as modified by the
codicil. (n)
Here, we have a codicil referring to a previous will. So the
scenario here is, there is a will and then after the will is
made, the testator made a codicil and then in the codicil he
also referred to the first will. Maybe in the codicil, he added
some dispositions or corrections and in that codicil he
mentioned that the provisions of the first will, insofar as are
not inconsistent with this codicil are still in full force and
effect. It made reference to the first will. What is the effect
of this referencing? That has the effect of
republishing the first will. Meaning, it is as if you reexecuted the first will, but because, like for example the will
was made in 1990 and the codicil in year 2015. So by making
a codicil in year 2015, which made reference to the will made
in 1990 it is as if the 1990 will is republished in year 2015,
and it is as if the 1990 will is made in 2015. So thats the
new date of publication as republished by the codicil.
One important consequence of this is in relation to Article
793. Under 793, the legacy or devise does not include those
properties acquired after the execution of the will but before
the death of the testator. So only those properties existing at
the time of the execution of the will can be made part of the
legacy or devise. So after-acquired properties are not
included.
Also under 793, we discussed one exception, it is when the
testator expressly provides otherwise. When he mentions in
a will that if there is addition to his properties after the
execution of the will, those additional properties are also
included in the devise or legacy, so when the testator dies,
the devisee or the legatee can claim those additional
properties. So thats one exception.
For example, in 1990, the testator made a will giving to A a
10-hectare land, I hereby give to A my land in Calinan,
Davao City, the land has 10 hectares. Supposedly near
2005, there is accretion which increased the area. It now
became 12 hectares. Under 793, would this be included in
the legacy or devise? NO! The 2 hectares additional is
considered as after-acquired property. So it will not be
included in the legacy or devise. When the testator dies, he
can only claim 10 hectares. Unless the testator expressly
51
provided in his will that the additional properties are likewise
included.
case, the pertinent provisions of the Rules of Court for the

allowance of wills after the testator's a death shall govern.
Second exception, under Art. 836, for example, in year 2015,

the testator made a codicil and in that codicil he reiterated
the provisions of his will made in 1990, I hereby give to A
my land in Calinan, Davao City, the land has 10 hectares. So
in 2015, how many hectares are there? 12 hectares already
because of the accretion. And the codicil republished this will
in 2015. Upon the death of the testator, what can the
devisee claim? The 10 hecatares only or the 12 hectares?
Because of republication it is as if the 1990 will was made in
2015. So, strictly speaking, we cannot call the 2 hectares as
after-acquired property. It is considered as an exception.
The Supreme Court shall formulate such additional Rules of

Court as may be necessary for the allowance of wills on
petition of the testator.
Art. 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)
Here, we have a first will and then the 1 st will is expressly
revoked by a 2nd will. So we are talking here of revocation by
subsequent document or instrument. But the 2nd document
has revocatory clause, express revocation. If that 2nd will is
expressly revoked, the first will is not revivied. So that is the
PRINCIPLE OF INSTANTER. The first will is not revived.
Unlike that situation where the first will is just impliedly
revoked by a 2nd will. If that 2nd will is itself revoked, what
will happen to the first will? It is now revived. So that is the
concept of REVIVAL. We discussed republication, diba?
What is revival? It is the re-establishment of validity by
operation of law of a previously revoked will. The concepts of
republication and revival are more or less similar because
there is a first will and then it is not valid but the 1 st will is
again, given effect.
In republication, the will is re-established to validity by the
testator.
In revival, the will, which is no longer valid, is revalid by
law. It is giving effect again to an otherwise void will.
The difference there is that revival is the act of law, while
republication is the act of the testator. So those are the
similarities and the distinctions.
Again, Article 837 is the Principle of Instanter. Take note that
in 1st will is expressly revoked by the 2nd will.
In revival, the 1st will is just impliedly revoked by the 2nd will
and then if the 2nd will is revoked, then the 1st will is revived.
So thats the example of revival.
Another example of revival would be, diba I mentioned to
you the concept of preterition. So if there is preterition, the
will is annulled, but assuming that the preterited or omitted
heir dies ahead of the testator, and the preterited heir has no
heirs of his own, has no representatives, then in that case
the will is revived. I dont know if you understand, maybe we
can understand that when we go to preterition. But again,
that is an example of revival.
So, we now go to probate.
Subsection 8. - Allowance and
Disallowance of Wills
Art. 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
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.
So, Article 838 provides that the will has to be probated. No
will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court.
So this is the process of probate.
LASAM VS. UMENGAN
GR 168156, Dec. 2006
As just discussed what is probate, to probate a will means to
prove before some officer or tribunal, vested by law with
authority for that purpose, that the instrument offered to be
proved is the last will and testament of the deceased person
whose testamentary act it is alleged to be, and that it has
been executed, attested and published as required by law,
and that the testator was of sound and disposing mind. It is
a proceeding to establish the validity of the will.
So based on Article 838, probate is mandatory. In this case,
there was an unlawful detainer case filed, and ejectment
case. Lasam here filed a complaint for ejectment against
Vicenta Umengan who was occupying the property but then
Umengan said the she was occupying the property not
because of tolerance or any contract of lease with Rosendo
Lasam but because her children inherited the property by
intestate succession from the deceased Pedro Cantupay. So
that was their defense. However, Lasam there presented a
copy of a last will and testament allegedly executed by Isabel
Cantupay, the wife of Pedro. So in that will, the land was
devised to Rosendo Lasam, so he said he was entitled to the
land. The will was not yet probated at the time but the RTC
ruled in favor of Lasam on the basis of that last will and
testament. And the court just mentioned that since probate
does not prescribe, this ruling is without prejudice to the
probate of the will. The question is, was the court correct in
relying upon the last will and testament as basis in saying
that Lasam had a right over the property? Because the court
also said here that testacy is favored over intestacy. We have
a will, in the will, Lasam was instituted or given a property
and while the defendant is relying upon legal succession or
intestate succession, so we give effect or favor testacy.
The SC said that the RTC committed an error in relying upon
the will because we should note that the will was not yet
probated, so it is basic that no will shall pass either real or
personal property unless it is proved and allowed in
accordance with the Rules of Court. And an unprobated will
cannot be a basis of any right, it cannot be used as a
foundation. Until admitted to probate, it has no effect
whatever and no right can be claimed thereunder, the law
being quite explicit.
VDA. DE KILAYKO VS. JUDGE TENGCO. (GR NO. L45425)
So that is one characteristic of probate proceeding, it is
mandatory. If you have a will, if it is not probated you cannot
use it as basis or foundation of your claim. That was
discussed in this case.
Next is, probate is required by public policy.
MANINANG vs. COURT OF APPEALS
(114 S 478)
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The law enjoins the probate of the Will and public policy
requires it, because unless the Will is probated and notice
thereof given to the whole world, the right of a person to
dispose of his property by Will may be rendered nugatory.
does not prescribe. There is no prescriptive period within

which to institute a probate proceeding. Even if the decedent
or the testator died a hundred years before, still, probate can
be availed of.
What is the reason why is it required for us to undergo the

process of probate when there is already a document?
Because even if there is a document purporting to be the last
will and testament of Juan Dela Cruz for example, but they
are not sure if it is really his last will and testament.
Just remember that once the petition is filed, you are already
bound by the reglementary periods under the rules of court.
What if you just distributed properties in accordance with

that document when in truth and in fact he did not execute
the will? So his desire was just to distribute among his legal
heirs? So without probating the will, we did not comply with
the real wishes of the testator, we defeated his intentions.
So thats when his right to dispose of his properties was
rendered nugatory because we did not probate the will. We
did not make sure if that was really his intention.
August 20 (FJB)
Last meeting, we discussed probate under article 838. As we
already discussed, an un-probated will cannot be used as a
foundation of any right or claim. Probate is mandatory. It is
required by public policy because unless the will is probated,
the right of a person to dispose of his property mortis causa
may also be rendered nugatory. That is why probate is
mandatory.
Mercado v. Santos
As mentioned by the Supreme Court in this case as in other
cases, probate is a proceeding in rem. When you say that it
is a proceeding in rem, it is binding against the whole world.
You cannot say that you were not able to participate in the
proceeding or that you are not bound. That is not correct. It
is distinguished from an action in personam where you have
to be a participant to be bound.
Here, the decree of the probate court, once entered, is
binding against the world. The minimum requirement here is
just publication. You have to publish the notice of the court
setting the case for hearing unless it is the testator himself
who filed the petition. That is not required to be published.
In post mortem probate, it is publication that serves as
notice to the whole world. It is jurisdictional. If the notice is
not published, the whole proceeding is null and void.
Alsua-Betts v. CA
The Supreme Court said that the principle of estoppel is not
applicable in probate proceedings. You cannot say that the
parties are already estopped from filing the petition for
probate.
For example, we have the heirs and we have a last will and
testament but the heirs did not probate the last will and
testament. Instead, they entered into an extrajudicial
partition. They partitioned the property among themselves.
Later on, one of them who was a participant in the
extrajudicial partition, filed a petition for probate even if he
already received shares from the extrajudicial partition.
Can he be said to be already in estoppel because he already
participated in the extrajudicial partition and, therefore, he
cannot subsequently impugn the extrajudicial partition and
petition the court for the probate of the will?
No, he cannot be said to be in estoppel. There is no estoppel
in probate proceeding. The principle of estoppel will not
apply here. That is the basic principle.
In Re: Pilapil
The Supreme Court said that the right to ask for probate
For example, you filed a petition for probate and then the
court disallowed the probate, so you have a period within
which to appeal. What if you did not file an appeal? You just
waited for two years, then afterwards, you filed another
petition for probate. The rule is that the right to ask for
probate does not prescribe. Are you allowed to refile the
petition? No, because once you have filed, you have to avail
of all the possible remedies under the rules of court, and you
are already bound by the reglementary periods.
Dela Rosa v. Archangel
The Supreme Court clarified that there is no action for an
annulment of a will. You are not allowed to institute an
action for the annulment of the will.
What if you do not agree to the contents of the will? Your
remedy is to oppose the probate.
What if nobody files a petition of the probate of the will?
I think I already mentioned a case I handled wherein nobody
filed a petition for the probate of the will. Not even the
person appointed as executor instituted the probate
proceeding. Maybe he was scared that there will be a
disallowance because the will may be defective. He was
threatening his co-heirs that they are disinherited in the will.
Nevertheless, he was willing to give them a little because he
pity them. What we did was we just delivered to the court a
copy of the will because, as discussed in the case of
Rodriguez v. Borja, under rule 76 of the rules of court, the
court acquires jurisdiction once a copy of the will is delivered
to the court or a petition for probate is instituted.
So, once the court receives a copy of the will, it shall set the
time, date, and place for hearing. The persons who want to
oppose may present their opposition. So, you do not have to
wait for the will to be probated. You can deliver a copy of the
will to the court.
Dela Rosa v. Archangel
Also, if there is a petition for probate, you can file an
opposition. There is no such thing as annulment of probate
of the will.
Who may be allowed to intervene in probate proceedings?
LEVISTE V. CA
How did Atty. Leviste intervened in the case?He filed a
motion to intervene in the case to claim for his professional
services as counsel but this was denied by the court.
That was before the court disallowed the will, but after the
disallowance, what did Atty. Leviste do?He appealed to the
ca the disallowance of the will.
What was his reason?He cited article 1052 which says that
he has a right to protect his interest in the case.
Issue: WON he can appeal the disallowance of the will.
WON he is the proper party to appeal the disallowance.
How about his contention that he is a creditor of Del
Rosario?
How about the status of del Rosario as an heir?
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What does 1052 presuppose?
Who was supposedly liable? Del Rosario, but del Rosario is
not an heir, therefore, 1052 does not apply.
Here, did Atty. Leviste have personality to participate? No.
What would it take for one to be allowed to intervene or
participate in probate proceedings? What is required?He
must have a direct interest in the case. Strangers are not
allowed to participate in probate proceedings.
What is the reason for the rule?
Even if they know the circumstances when the will was
executed, they cannot be participant or intervenors but they
can be witnesses. They cannot be oppositors because they
do not have a direct interest in the proceedings. To have a
direct interest means that they should be directly affected by
the result of the proceedings, either they will be benefitted
or they will be adversely affected or injured. In this case,
Atty. Leviste was not considered as a person who has a
direct interest in the proceeding.
Maloles v. Philips
This is involving testamentary succession, there is a will and
then a nephew intervened in the probate proceeding.
Can a nephew participate in a probate proceeding? Is he an
interested party? The Supreme Court said no because a
nephew is not a compulsory heir.
Take note that in testamentary succession, the testator can
even exclude his brothers, sisters, uncles, aunts, nephews,
and nieces because they are just legal heirs. If there is no
will, they are considered as proper parties. They have
personalities only if they are not excluded also by the
presence of other relatives like the children and ascendants.
In that case, they are allowed only if there are no other
relatives. But in testamentary succession, they are not
compulsory heirs, so, according to the Supreme Court, they
are not proper parties to intervene,
We already discussed before the rules in probate of
holographic wills. If the will is not contested, at least one
witness who can explicitly identify the handwriting and the
signature of the decedent is required. If the will is contested,
atleast three of such witnesses is required.
AZAOLA v. SINGSON
As discussed in this case, we know whether or not a witness
is mandatory in the probate proceedings.
From 2014 TSN: In the case of, the presentations of expert
witnesses are permissive, not really mandatory. During the
execution of holographic wills, there were no witnesses, so it
is really possible that during the probate of the holographic
will, there were no such witnesses who know the handwriting
of the testator. So, it was not mandatory to present expert
witnesses. Take note that in the execution of the holographic
will, no witnesses are required. When you require 3
witnesses, you are requiring not merely 3 witnesses but 3
witnesses who can explicitly declare that signature or
handwriting is really that of the testator and sometimes it is
just close to impossible. Because you cannot just find that
witnesses.
In our discussion, we also clarified when a will is considered
as contested.
Rivera v. IAC
The oppositor there was proved to be not the illegitimate son
of the testator, so even if he contested the probate, there
was no contest in the legal sense because the one who
opposed has no personality to intervene in the proceeding.

Therefore, the presentation of three witnesses in thatcase is
not required.
As to probate of notarial wills, you also have rule 76 of the
rules of court. If the will is not contested, then the testimony
of one subscribing witness is sufficient. If the will is
contested, all the subscribing witnesses and the notary public
must testify. If they are insane, dead, absent in the
Philippines, or they testify against the due execution of the
will, or they are of doubtful credibility, or they do not
remember the contents of the will, then the testimony of all
the witnesses is required.
We have two kinds of probate:
Ante mortem probate It is the testator himself

who petitions the court for the probate of his will.
Post-mortem probate It is the interested party

who files the petition for probate. It can be filed by
any interested party whether the executor,
administrators, any one of the heirs, or creditors.
There are two phases in probate proceedings:
Probate proper In this phase, the court looks

into the extrinsic validity of the will.
Distribution phase In the second phase, after

the will is allowed probate, then they go to the
distribution [of properties] in accordance to the will.
The court now looks into the intrinsic validity of the
will.
We go now to the probate proper. During probate, what are

the matters discussed and resolved by the probate court?
Matters pertaining to the extrinsic validity of the will. What
are these matters specifically?
1.
Question of identity whether the will presented

is the same will executed by the testator;
2.
Question of testamentary capacity whether

the testator had testamentary capacity at the time
he executed the will; and,
3.
Question of due execution whether the

testator executed the will voluntarily. He was not
coerced. There was no fraud, mistake, or violence.
Whether he understood what he executed.
Those are the three matters pertaining to the extrinsic

validity of the will that are discussed during probate proper.
What is the consequence of this? During probate:
You cannot raise questions relating to filiation as a

general rule. You cannot say that the testator is
disqualified to give to the mistress.
So, the qualifications of the heirs or their capacity to

succeed are not discussed during probate proper.
Whether or not there is impairment of the legitimes

is not discussed during probate proper.
Whether or not the testator owns the property

included in the will [is likewise not discussed during
probate proper].
These are matters pertaining to the intrinsic validity of the

will. They are discussed during the distribution but not during
probate proper. This was discussed in several cases.
MAGALLANES V. KAYANAN
What was the ruling of the probate court with respect to the
codicil?
54
What is the status of the title? Null and void.
there was a prayer for disinheritance.
What did the probate court order the ROD?To transfer the
testatrixs title to the Kayanans.
What did the Supreme Court say about this?
Wat is the issue in this case? Whether or not the probate

court has jurisdiction to declare as null and void the
certificate of title.
Ruling: No
If there is a property sought to be included in the
proceeding, what is the proper remedy?[The courts
jurisdiction extends] only to determine whether it is to be
included or excluded in the inventory.
But what if there is an issue as to ownership?There must be
a separate action filed with the regular courts to resolve the
issue of ownership. For example, the properties are under
the name of the testator. The presumption is that these
properties are owned by the testator. So, the court will have
to order the inclusion of these properties in the inventory. If
third parties claim that these properties are actually owned
by them, then they have to file a separate action in another
proceeding in the regular courts to litigate the issue on
ownership.
Or, another example, like in this case, the executor said that
these properties are to be included but in the title the
properties are not in the name of the testator. The court
should exclude the properties from the inventory. Should the
executor insist that these properties are owned by the
testator, he should file a separate case for the recovery of
those properties alleged to be part of the estate. Again, this
is because the probate court does not dwell into matters
pertaining to the intrinsic validity of a will. Ownership
pertains to the intrinsic validity of the will.
Also, under your land titles and deeds, if you have a title and
you are alleging that it is null and void, what is the principle
there? A certificate of title is not subject to collateral attack.
In this particular case of Kayanan, is that a collateral attack
or a direct attack? Collateral attack. The main action in this
case is for the probate of the will. So, you have to file a
separate petition for the cancellation of title which is a direct
action. That is more reason why the probate court should not
rule on the validity of titles.
CHING V. RODRIGUEZ
In relation to our topic, what is the issue in this case? WON
the case should be resolved in a special proceeding and not
in an ordinary civil action.
What was the nature of the action filed here? Complaint for
disinheritance, waiver, and extra-judicial settlement.
Is this case a special proceeding or an ordinary civil action?
How do you distinguish them as their nature? As defined in
the rules of court, a special proceeding is a remedy by which
a party seeks to establish a status, a right, or a particular
fact. For example, probate of wills when you seek to
establish the status of the testator, adoption when you seek
to establish the status of a person as an adopted child,
correction of entries in the civil register, habeas corpus, etc.
What is a civil action? [It is] when you sue for the
enforcement of or protection of a right, or the prevention or
redress of a wrong. When you committed a wrong or a
violation was committed against you, so you file a civil action
in court for relief.
In a special proceeding, you do not have an adverse party.
In a civil action, you have a specific opponent.
In this case, is this a special proceeding or an ordinary civil
action? Ordinary civil action.
Remember, in special proceedings, the court can only discuss

the three matters pertaining to the intrinsic validity of a will.
So, how can it be a special proceeding if, in the first place,
there was no will presented? Therefore, it is was not a
special proceeding but merely an ordinary action for recovery
of ownership to the property.
Let us go to the exceptions. Again, the general rule is that
only matters pertaining to the extrinsic validity are resolved
in the probate proceeding. Meaning, only questions of
identity, testamentary capacity, and due execution. What are
the exceptions? When can the probate court determine
issues pertaining to the intrinsic validity of the will?
CAYETANO V. LEONIDAS
What is the alleged issue on the intrinsic validity of the will?
We discussed before in article 16 the matters pertaining to
the extrinsic validity of the will. What law governs the
intrinsic validity of the will? The national law of the decedent.
So, to determine whether or not the will is intrinsically valid,
we have to look at the national law of the decedent. But
again, in a probate proceeding, the court is limited to
matters pertaining to the extrinsic validity of the will. So, why
should we, in the first place, examine the national law of the
decedent when it is a matter pertaining to the intrinsic
validity of the will? What is the ruling of the SC?
What is the specific term used if a compulsory heir, for
example a child, is deprived of his legitime? Preterition.
Whether or not there is preterition is a matter pertaining to
the intrinsic validity of a will. Why should the probate court
resolve that even if that is a matter pertaining to the intrinsic
validity of a will? Why would it be practical to resolve the
issue of preterition even during probate proper? [It is]
because when there is preterition, the institution of heirs will
be allowed. So, even if the will is validin form, still the will
cannot be given effect [due to preterition]. We will just be
wasting the time, resources, and efforts of the court and the
parties in going through these questions pertaining to the
extrinsic validity of wills if, after twenty years of probate, you
will say that the will is valid but sorry it cannot be given
effect because there is preterition. That would be a waste of
time. So, if preterition is alleged, it would be more practical
to meet the issue to determine if there is sense in going
through the process.
Preterition was evident in the face of the will, so it has to be
resolved.
But not in all cases where preterition is alleged that the court
will resolve the issue during probate proper.
Example: The issue is WON it is preterition or disinheritance,
you still have to resolve the extrinsic issues of identity,
testamentary capacity, and due execution. Meaning, you
have to resolve the extrinsic validities of a will because if
disinheritance is alleged, you first have to determine whether
the will is extrinsically valid.
Even if preterition is alleged but there are legacies and
devises also mentioned in the will, the institution of heirs is
allowed but the legacies and devises, insofar as they are not
inofficious, meaning it will not impair the legitime of the
heirs, will be given effect. A legacy or devise cannot be given
effect without going over the extrinsic validity of a will, so
even if preterition is alleged, you do not skip the probate
proper. You still have to determine the extrinsic validity of
the will.
In the first place, why was this issue brought up? Because
55
In other cases, the probate court resolves the issue on
ownership, which is a question pertaining to the intrinsic
validity of a will during probate proper. If the question of
ownership is for the purpose of determining WON the
property should be included or excluded in the
inventory, the court may determine the question of
ownership. Again, going back to the case of:
Rivera v. IAC
On the question of filiation, which is a matter pertaining to
the intrinsic validity of a will, in this case, the court has to
determine the issue during probate proper so as to know if
the person opposing the probate has personality to oppose
the proceeding.
In most cases where the court decides to resolve the intrinsic
validity of the will, the ruling of the probate court on this
aspect would not be final and would not constitute res
judicata. So, even if the court says that this property should
be included in the inventory because the title is in the name
of the testator, such is not a final determination as to the
ownership of the property. For all we know, even if the title
is in his name, he may have sold the property before. So, the
question of ownership can be threshed out in a separate
proceeding. That decision of the court to include the property
in the inventory is not a final determination and does not
constitute res judicata. That ruling is merely provisional.
The issue on ownership can still be threshed out in another
proceeding to determine ownership.
Again, these are provisions relating to the exercise of the
probate court of its jurisdiction. The jurisdiction of the
probate court is what we call as limited jurisdiction,
involving those three matters pertaining to the extrinsic
validity of the will. If the court, in the meantime, goes
beyond its jurisdiction to resolve those matters
pertaining to the intrinsic validity of a will, these are
not final. These would not constitute res judicata.
These are merely provisional. These are just exceptions to
the general rule. But as to the matters pertaining to the
extrinsic validity of the will, the decree of the court will
constitute res judicata.
MERCADO V. SANTOS
What is the effect of the decree of the probate court?It
establishes an incontrovertible or conclusive presumption as
to the due execution of the will.
What would happen if for example a criminal case for perjury
would be allowed to prosper?
Why did the court not allow the criminal prosecution for
perjury?
When you say that the decree of the probate court is a
conclusive presumption as to the due execution of the will, it
means that it is already settled that the will was executed by
the testator. If you allow the criminal prosecution for perjury
to prosper, you will be disturbing the final, executory, and
conclusive decree of the probate court as to its execution.
That would not be allowed. The decree of the probate court
is conclusive as to the three extrinsic matters of identity,
testamentary capacity, and due execution of the will and
constitutes res judicata.
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)
Under article 839, we have the grounds for the disallowance
of wills. So the wills mentioned under 839 are void wills
because of the grounds mentioned.
1.
The formalities required had not been

complied with. So the forms required by law
for notarial and holographic wills.
2.
If he was not of sound mind so he was

insane or incapable of making then will. So
testamentary incapacity.
3.
If there was force or was under duress or

influence of fear or threats. So his consent
was vitiated. The same with numbers 4, 5
and 6. His consent was vitiated.
The grounds mentioned are EXCLUSIVE. There are no other

grounds to disallow a will except perhaps for another ground,
REVOCATION. Because if the will has been revoked even if
the will complied with all the formalities and the testator had
testamentary capacity, even if he executed the will freely and
voluntarily and not with vitiated consent, but if you revoke
the will, the will is now void and it will be disallowed if it is
proved that the will presented for probate has already been
revoked.
As so what is force, fear, force, threat, fraud, you discussed
that under your obligations and contracts, vices of consent,
those are the same concepts.
So when you say force, duress, fear or threat, these would
connote the idea of coercion whether mental or physical.
Undue influence when a person takes unfair advantage of
his power over the will of another, depriving the latter of a
reasonable freedom of choice.
Fraud is the use of insidious words or machinations to
convince a person to do what ordinarily he would not have
done.
In your oblicon, the presence of vitiated consent will render
the contract voidable. So the contract is valid but can be
annulled. But if these vices of consent are present at the
time of the execution of the will, the will is void. It is not
voidable but void so it can be disallowed because of the
presence of vitiated consent.
Revocation
Disallowance
In both cases, we presupposed that there is a will but by reason of

revocation or disallowance, the will is declared null and void and
cannot be given effect.
Art. 839. The will shall be disallowed in any of the following

cases:
it is the voluntary act of the

testator. It is his act of
terminating the capacity of his
will to operate at the time of his
death.
It is by means of a judicial
decree. It is the court that issues
an order denying the probate.
(1) If the formalities required by law have not been complied

with;
It can be done by the testator

with or without a cause.
It is only based on the grounds

mentioned under article 839.
Sept. 3, 2015 (ZM)
(2) If the testator was insane, or otherwise mentally

56
May be partial or total; not
necessarily complete especially
when the revocation affects only
certain provisions of the will.
As a general rule, it is total.

Except when fraud or undue
influence affects only certain
parts of the will
Done during the lifetime of the

testator
Usually invoked after the

testators death.
different from the date of acknowledgement. So I execute

ninyo tanan, the testator and the witness then two days after
ni adto si testator sa notary public nag acknowledge siya
then five days later ni adto and isa ka witness then so on and
so forth. So it does not matter or important to the validity of
the will.
Ortega vs. Balmonte

GR. No. 157451 December 16, 2005
Here, Placido was the testator. He came home to stay in the
Philippines where he lived in a house which he owned in
common with his sister. Two years after his arrival from the
united states, at the age of 80, he married Josephina who
was then 28 years old. He executed a last will and testament
written in English. In the will, he gave to his wife all of his
properties. So the probate of the will was opposed by his
sister on the ground that the will was not executed and
attested as required by law, that the will was executed under
duress of the influence of fear or there was undue or
improper pressure or influence and there was fraud and he
did not intend that the instrument should be his will at the
time he affixed his signature.
The sister alleged that it was highly dubious for a woman at
a young age to plunge into a marriage with a man who was
thrice her age and who happened to be a Fil-American
pensionado. According to her, it defies human reason, logic
and experience for an old man with a severe psychological
condition to really have signed the last will and testament.
Under this circumstances, the sister alleged that there was
fraud, undue influence etc.
The SC said that fraud is a trick, secret, device, false
statement or pretense by which the subject is instituted. It
may be of such character that the testator is misled or
deceived as to the contents of the document which he
executes, or it may related to some extrinsic fact in
consequence of the deception regarding which the testator is
led to make a certain will, which but for the fraud, he would
not have made. The party who alleges fraud has the burden
of proof that the fraud existed during the executed of the
will.
SECTION 2. Institution of Heir
Art. 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)
This is the concept of institution of heirs. Here, the testator
designated in the will the person or persons who are to
succeed him this is a kind of direct disposition. When you
institute heirs you are giving your properties to the persons
named in the will.
First, when we say institution of heirs, we already discussed
the distinction of heirs and legatees and devises.
So when we say institution of heirs we are referring to the
heirs. The ones who are given the entirety of the estate or
universality of the estate or an aliquot, fraction, ideal or
spiritual share in the estate, these are the ones instituted as
heirs
The institution of heirs that we will discuss is different from
legatees and devises. That would be in another chapter.
Although some provisions here can also be applied to
legatees and devises.
Characteristics of an instituted heir:
Here, the instituted heir is the testamentary heir

and the voluntary heir, the one that is given a free
portion of the estate. We are not referring to the
compulsory heirs because we dont need to institute
the compulsory heirs to their legitimes and even if
they are not mentioned, they are entitled. We are
referring to the free portion. We are also to
distinguish this from legal heirs because legal heirs
are the ones who inherit when there is intestacy.
Institution of heirs is during testacy or testate
succession.
The instituted heir continues the personality of the

testator; he steps into the shoes of the testator but
he is not personally liable for the debts of the
testator. Meaning if there are obligations, his
liability is only up to the value of his inheritance and
he cannot be compelled to pay more than his
inheritance.
An instituted heir is a natural person. A juridical

person can be instituted if the latter is allowed
under its charter to succeed. If ot is a natural
person, he must have juridical capacity as
distinguished from capacity to act.
So the allegations of the sister here were not sufficient to

prove fraud because aside from her allegations, that because
of the age of the testator and the wife, there is already
fraud. Gi insulto jud niya iyang igsuon.
The fact that the relatives were omitted in the will, it is a
settled doctrine that the omission of some relatives does not
affect the due execution of the will. That the testator was
made into signing the will does not sufficiently establish
fraud by the fact that he instituted his wife who is more than
50 yrs. of his age as the sole beneficiary, and disregarded his
sister and his family who has taken care of the testator in his
twilight years.
So, the omission of some relatives is not an indication of
fraud because as long as they are not compulsory heirs, you
are not obliged to institute them as heirs. If you only have
the brothers and sisters, you can give all your properties to
some other person. You can entirely deprive them because
again, they are not compulsory heirs.
As to the allegation that there was a defect in the will
because the dates did not coincide with the will. The SC said
that it is not enough to invalidate the will because the dates
are not important in notarial wills so the facts that there
were differences in the dates that will not matter. in fact, a
will can be acknowledged before the notary public on
separate dates. They are not required to be acknowledged
on the same date. The will can also be executed on a date
When you say juridical capacity, the capacity to be

the subject of legal relations while capacity to act is
the capacity to act into acts with legal effects. A
person who is just 1 year old has juridical capacity
but does not have the capacity to act because he
cannot enter into contracts; he cannot do acts with
legal effects. One who is 20 years old, he has
juridical capacity and capacity to act because he is
of legal age. In fact, 18 is the age of majority.
57
But an instituted heir needs only juridical
capacity, he need not have capacity to act
although we have to comply with the requirements
of articles 40 and 41 as to when is there juridical
capacity or when does a person attain civil
personality.
materialize because the fetus did not attain civil

personality so he did not receive the property
therefore when the mother subsequently died, this
property did not go to the mother. Again, dili valid
ang inheritance. It remained in the estate of the
father. Kinsay mag inherit ani? Pwede si mother apil
sa mga legal heirs pero apil pud ang mga igsuon.
Art. 40. Birth determines personality; but the

conceived child shall be considered born for all
purposes that are favorable to it, provided it be
born later with the conditions specified in the
following article. (29a)
If this fetus attained civil personality, so 8 months

siya. the father previously instituted the fetus, he
died but then the fetus also died but he was 8
months so he acquired civil personality so the
property was inherited by the fetus even for just 2
hours. When the fetus dies acquiring civil
personality so he was able to get his property as
part of his estate, so when the fetus died, the
property was inherited by his mother. So when the
mother died, and mag inherit ani, iyaha ng mga
relatives unlike atong wala siyay civil personality
maadto siya sa relatives of the father although
pwede siya maka share pero dili sa iyaha ang tanan.
So that is the difference between attaining civil
personality and not acquiring it.
Art. 41. For civil purposes, the fetus is considered

born if it is alive at the time it is completely
delivered from the mother's womb. However, if the
fetus had an intra-uterine life of less than seven
months, it is not deemed born if it dies within
twenty-four hours after its complete delivery from
the maternal womb. (30a)
So a natural person can be instituted as an heir.
How about an unborn child? Can that be instituted?
That depends if that conceived child attains civil
personality. If he has an intra-uterine life of 7
months, the only requirement for that fetus to
attain civil personality is he should be born alive
because birth determines personality. Meaning, pag
gawas niya, buhi siya but what if he died after 2
minutes? Did he attain civil personality? If he was
given an inheritance, did he inherit? Yes because he
had an intra-uterine life of at least 7 months as long
as he was born alive. So basta ang intra-uterine life
kay at least 7 months dapat maanak siya nga buhi.
Bahala nag mamatay siya 1 hour after.
You have to remember that consequence because it

can also apply when you go to article 891 on
reserva troncal.
But if he had an intra-uterine life of less than 7

months, he must live for at least 24 hours for him to
acquire civil personality. So halimbawa 6 months
lang siya sa tiyan unya gi anak siya ug buhi siya,
that is not enough. He must live for at least 24

hours. Kung namatay siya after 23 hours and he
was given an inheritance because he did not attain
civil personality, he did not inherit.
What is the significance of determining whether the
child has civil personality?
Example, there is a pregnant mother and then the
grandfather donated a certain property to his
unborn grandson. And then the fetus did not reach
seven months so premature. Nanganak iyang mama
and then the fetus died after 6 hours. So he did not
attain civil personality. What happens to this
donation? As if wala siya naadto kay fetus because
dili siya valid and because wala siyay civil
personality.
The father gave a parcel of land to his unborn child

and then the father died. Gianak ang bata after 2
hours (6 months lang siya sa tiyan) namatay pud
iyang mother. So in that example, what happens to
the property na gikan sa father? When the father
died the supposed inheritance of the fetus did not
The instituted heir acquires rights limited to the

disposable portion. And they cannot impair the
legitime. So even if the testator is allowed to
institute heirs and as I have said, the institution
covers the free portion, that is not without
limitation. He can only institute up to the extent of
the free portion because if he exceeds he would be
affecting the legitimes of the compulsory heirs and
that will not be allowed by law. The compulsory
heirs are assured by law of their legitimes.
In institution there is presumption of equality. If

several persons have been instituted without
designation as to their specific shares, the
presumption is that they have been instituted in
equal shares
REQUISITES FOR VALID INSTITUTION OF HEIRS

1.
The will must be extrinsically valid. The institution

can only happen in testamentary succession and
testamentary succession cannot happen without a will so
without a valid will, the institution of heirs cannot be
given effect.
2.
The institution must also be intrinsically valid. As

to the content, the instituted heir must be identifiable, if
magbutang ka dirag heir unya di siya identifiable dili
gihapon mahatagan ug effect and institution.
There must be no impairment of the legitime. Even if
you made some institution of the heirs but the legitime
of the compulsory heirs are affected, then the entire
institution cannot be given effect. Pwede mabawasan
ang imong gihatag sa instituted heirs.
How about if he had attained 8 months and then he

was born and lived only 2 hours but prior to that
the grandfather made a donation. So in that case
valid and donation.
For example the father instituted his unborn child,
so when we say instituted, we are referring to the
free portion although the legitime, no need for
institution. So the father gave that to his son so 6
months palang and then gi anak, namatay after 3
hours. So he did not acquire civil personality. So the
fetus did not inherit from his father.
There must be no preterition (article 854) because if

there is preterition the law says that the institution of
heirs shall be annulled. So kung naay preterition,
mabalewala gihapon and institution of heirs even if the
will is valid
3.
The institution must be effective. The instituted heir

should not predecease, should not be incapacitated and
should not be disqualified. Because even if the will is
extrinsically valid, even if the institution is intrinsically
valid, but the instituted heir dies ahead of the testator,
then you cannot give that to him because the premise
here is that you are an heir, you are the survivor so you
58
cannot die ahead of the testator or even if you did not
die ahead but you repudiated so di gihapon ka
makadawat or you were disqualified to inherit.
Art. 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)
The law says a will shall be valid even though it should not
contain an institution of an heir. So bisag diay wala kay
gihatagan sa imong property and you made a will valid
gihapon na siya.
what is an example of a will that does not contain the

institution of heirs? A will containing only disinheritance. That
is still valid even if there is no institution of heirs.
Or if the institution does not comprise the entire estate. So I
hereby institute A to 1/3 of my hereditary estate. So ang 2/3
it will go by intestacy to the legal heirs. And 1/3 maadto
kang instituted heir. So this is a case of mixed succession.
Even if the person so instituted does not accept the
inheritance or should be incapacitated, I hereby institute as
heir to my entire estate. If A repudiates or becomes
incapacitated or he was disqualified to inherit, the properties
will go by way of intestacy. But what would be the
significance? Nganong mu-ingon man ta na the will is valid
even if the instituted heir becomes incapacitated or
repudiates, assuming that is the xxx. Previously, the testator
executed a will giving to B all his properties and then later on
he changed his mind and made a will giving to A all his
properties. So ang mahitabo the second will has revoked the
first will because their provisions are incompatible. What if A
repudiates his inheritance? The revocation of the first will still
stands because even if A repudiates or becomes
incapacitated the will itself where A was instituted remains
valid. So there is still an effect, it still revoked the first will.
That is the doctrine of absolute revocation.
In such cases, the testamentary dispositions may in
accordance with law shall be complied with and the
remainder of the estate shall pass to the legal heirs.
So in my last example, A repudiated his inheritance so we
cannot give to A because he repudiated and we cannot give
the one first instituted because his institution was already
revoked then the estate shall go by way of intestacy to his
legal heirs.
Art. 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)
So freedom of disposition. If you have no compulsory
heirs you can give your entire properties to anybody as long
as that person is not disqualified. So even if you have
brothers and sisters, aunts and uncles, nephews and nieces,
they are not compulsory heirs. The compulsory heirs are the
legitimate children or descendants or in their absence the
legitimate parents or ascendants, the surviving spouse and
the illegitimate children. So in the absence of these persons
you can give your properties to anyone, you have no
obligation to give to your legal heirs.
If you have compulsory heirs then the freedom to dispose is
limited only to the free portion so you have to respect the
legitimes of your compulsory heirs. For example you have

children, under the law they are entitled to of the net
hereditary estate. So the other half is free. So you can
institute heirs in the free portion but you have to comply with
the legitimes.
Art. 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)
Again because one requisite for a valid institution is that the
institution should be intrinsically valid one of which is that
the instituted heir should be identifiable or can be
ascertained. So you should describe the heir. Ideally, by
name or surname. Kung halimbawa, pangalan lang as long
as he can be identified by description. my most beautiful
aunt kung ma identify then pwede. Or kung nickname lang
baboy halimbawa mao ng term of endearment niya so siya
to.
Under this provision we can also use the rules which we

discussed in article 789 katong extrinsic or intrinsic ambiguity
and those provisions relating to the interpretation of wills.
Art. 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 the other proof, the person instituted cannot
be identified, none of them shall be an heir. (773a)
Errors in the name, surname or circumstances shall not
vitiate an institution.
Example:
To my pretty niece Juana and it turns out that Juana is not
pretty but it will not vitiate the institution because the
underlying reason for the institution is the affection liberality
generosity of the testator. It is not a condition precedent for
juana to inherit that she should be pretty its just a
description. my adopted child Ramon and it turns out that
ramon is not legally adopted. Well it is just a description
when it turns out to be erroneous then Ramon can still
inherit.
If there is a similarity of circumstances, you should be able to
identify by means of proof. For example you cannot identify
who is being instituted. my pretty niece juana unya duha
sila ka Juana unya mga gwapa pud sila. So kinsa man sa
ilang duha? If you can find any other proof to identify then
use the rules that we discussed. But what if di jud niya maidentify masking unsaon. Tunga-on na nila? NO, because the
intention is to give it only to one. So here if the heir cannot
be identified then none of them shall be an heir as
mentioned in the last sentence of the article 844.
Art. 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)
Every disposition in favor of an unknown person shall be
void. When we say unknown someone who cannot be
identified. I hereby give my one million to my student so
kinsa mana na student ang tagaan? If it cannot be identified
then the institution is void unless by some event or
circumstance, his identity becomes certain. There are
59
provisions on the CC where the disposition is in favor of
persons who are at someway called unknown because at the
time of the institution dili pa jud mahibal-an kung kinsa jud
like in article 859 my relatives so kinsa mana na relatives.
There are rules under 959 which says the nearest in degree
or in article 1030 the poor in general. so I hereby leave my
P1M to the poor. So lisod siya i-identify but there are certain
criteria given under article 1030 and in that case they are
limited to the poor living in the locality where the testator
decided and there are certain persons there who will decide.
The circumstance here may happen before or after the death
of the testator. to my nephew who will make it to the top 10
of the bar exam. so at the time when he made the will wala
pa nahitabo but before he died naay nag top so kato na siya.
Or pagkamatay ni testator naay nagtop then apil gihapon.
The identifying circumstance may happen before or after the
death of the testator but it is important the heir should be
living or at least conceived at the time of the death of the
testator. Halimbawa si nephew na nagtop wala pa naanak at
the time namatay si testator, naa pa siya sa heaven so wa pa
siya na conceive kaan siya wa na na siyay apil. When you
say conceived, remember the conditions under article 40 and
41. He must acquire civil personality because it is at the time
of death when transmission happen to kung wala pa ka
nahimong tao at the time of death when transmission is
supposed to occur then there can be no inheritance.
Art. 846. Heirs instituted without designation of shares shall
inherit in equal parts. (765)
So this is the PRINCIPLE OF EQUALITY.
If the heir are instituted without designation of heirs like I
hereby institute A,B,C,D as my heirs so walay gi-mention as
to their shares unya ang estate sa testator is P10M. so P10M
divided by 4 so that would be P2.5M each. Nganong equal
man? Because had the testator wanted to give them
different shares, he would have specified so in his will but
because he did not, the presumption is he intended to give
them equal shares.
I hereby institute A B C and D as my heirs (no mention of
any particular shares). Assuming A and B are the children of
the testator and as children they are compulsory heirs so
they are entitled to their legitime. So if the estate is 10M.
When we say institution we are referring to the free portion.
So first we give the legitimes of the children A and B. under
the law, they are entitled to . So 5M pertains to the
legitime, because there are 2 children, divide it by 2 so 2.5M
each si A and B. ang free portion is 5M. So ang free portion I
divide ug 4 kay 4 man ka instituted heirs. Nganong iapil pa
man si A and B na naa naman silay legitime? Kay gi-institute
man sila so the free portion is presumed to be equally
divided among A B C and D. so 5M divided by 4, 1.25M each
sila A B C and D.
Art. 847. When the testator institutes some heirs
individually and others collectively as when he says, "I
designate as my heirs A and B, and the children of C," those
collectively designated shall be considered as individually
instituted, unless it clearly appears that the intention of the
testator was otherwise. (769a)
Article 847 is what
INDIVIDUALITY.
we
call
the
PRINCIPLE
OF
So A and B and the children of C. the children of C are X and

Y and then the estate is 10M. the law says those collectively
designated shall be considered to be individually instituted
meaning katong giingon na children of C they are actually
considered as individually instituted. They enjoy the same
share as the ones who are also mentioned individually like A
and B. so its like saying A, B, X and Y. So the estate shall be
divided by 4.
NABLE vs. UNSON

The testator has 5 nieces and 6 sisters but 2 of them already
died. The 5 nieces (children of the 2 sisters) represent the
deceased 2 sisters. SC ruled that the nieces and the sisters
will inherit equally because they are individually referred to in
the case at bar. It will be divided by 9 each of them will
inherit 1/9 of the estate.
They are considered as individually instituted. They should
counted as individuals kay if you count them xxx 3 nieces
(children of deceased sister) would share 1/6. So they should
have the same status as the other sisters.
Art. 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)
Here the heirs instituted are brothers and sisters, some are
full blood, some are half blood. So A B C and D. A and B full
blood, C and D half blood. But under the law, they shall have
the same shares. So they are to be given equal shares unless
there is a contrary intention. This is because the testator did
not specify that the full blood brothers and sisters should
receive more than the half blood brothers and sisters. So in
the absence of that specification, the presumption is they
should receive equal shares.
Remember this because when you go to legal succession, if
the survivors are half blood brother and sisters and full blood
brothers and sisters, those of the full blood will inherit twice
as much as those of the half blood. Those of the half blood
are only entitled to of the share of the full blood. That is
in legal succession, the presumption of law is that the
affection of the decedent of the full blood relatives is more
than its affection for half blood relatives.
In testamentary succession, there is an opportunity for the
testator to specify their shares because he made a will. But if
he did not specify then the presumption is equal iyang pag
tan-aw. He could have specified but he did not so the
presumption is equal.
Art. 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 is the PRINCIPLE OF SIMULTANEITY.
I hereby institute A and his children. The meaning here is
that they are instituted simultaneously. Meaning at the same
time they will inherit. Halimbawa is A ang iyang children kay
si X Y and Z so A will inherit having the same share as X Y
and Z so 4 equal shares.
When you say successively, A first then when he dies, then
his children but that is not the intention of the law. The
intention here is if that is the tenor of the testamentary
disposition then simultaneous and not successive. You can
apply this successive when you go to fidei commissary
substitution. The inheritance there is first heir then after first
heir, the second heir. That is successive but if it is not clearly
in the nature of fidei commissary substitution, 849 says
simultaneous and not successive.
September 7, 2015 (JCP)
Art. 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.
So, statement of a false cause for the institution of an heir.
60
The law says, if it happens that the institution there is a
statement of a false cause, I hereby give to my beautiful
niece one half of my estate and that the niece is not
beautiful, so does it follow that she cannot inherit? It will not
vitiate the institution. So the false cause shall be considered
as not written. The underlying reason for the institution is
the liberality of the testator not the false cause. Just give
effect to the institution and disregard the false cause.
Unless it appears from the will that the testator would not
have made such institution if he had known the falsity of
such cause.
Example:
My friend took care of me while I was in coma. I hereby
institute my friend A to of my estate. Now assuming the
friend A was not the one who really took care of the testator
while he was in coma, it was again a false cause, the general
rule is you just disregard the false cause give effect to the
institution but how about the intention of the testator when
can it be made clear? Because if it is clear from the will that
the testator would not have instituted the heir if he had
known the falsity of the cause then he would not give effect
to the institution.
increased proportionally. (n)

So here again, the testator instituted heirs and gave aliquot
portions to the heirs. Now he thought that the portions given
would already cover his entire estate. But it so happens that
it does not cover the entire estate.
Estate P120,000
The testator instituted A, B and C to his estate. A will receive 1/6, B
will receive 1/8 and C will receive 2/3.
A 1/6 of P120K = 20K
B 1/8 of P120K = 15K
C 2/3 of P120K = 80K
So we total, P115K, so kulang ng 5K.
It was his intention to give everything to A, B and C. So we dispose
the remaining 5K in the proportion that they had been instituted.
How do we divide? We cannot divide directly because it did not
reach one whole.
(Amount over total multiply by remaining):
20K over 115K x 5K = P869.56
Example:
15K over 115K x 5K = P652,17
I wanted to institute my friend A as my heir but because it

was B who took care of me while I was in coma, then I will
give to B and it turns out later on that B was not really the
one who took care of the testator. So, if it was clear from the
will that he would not have instituted B had he known the
falsity of the cause because he wanted to institute A in the
first place but because he thought B took care of him then
he instituted B. So here, it is clear from the will that the
testator would not have the institution had he known the
falsity of the cause, so again, B cannot receive the property if
it can be proved that the cause of the institution was false.
How about A, will A inherit? Because the testator said I
wanted to institute A but it was B who took care of me. NO.
Why? Because he did not institute A. What will happen to
that portion? If there is no substitute, accretion, it will go to
the legal heirs by legal or intestate succession.
80K over 115K x 5K = P3,478.26
Art. 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)
So here, I hereby institute A as heir to of my estate, so
the institution does not cover the entire estate. So, what
happens to that portion not mentioned in the will? It shall go
by intestacy. So will go to the heir by testamentary
succession and the other half will go to the heirs by legal
succession. This is a case of mixed succession.
Or several heirs are instituted I hereby give to A, B and C
each of my property. So that will not cover the entire
property because the remaining will go by legal
succession.
This article applies if there is no intention on the part of the
testator to give everything to the heirs. Because again we
have Art 852.
Art. 852. If it was the intention of the testator that the
instituted heirs should become sole heirs to the whole estate,
or the whole free portion, as the case may be, and each of
them has been instituted to an aliquot part of the inheritance
and their aliquot parts together do not cover the whole
inheritance, or the whole free portion, each part shall be
So that should be equivalent to 5K after rounding off the result.
Again if there is an intention on the part of the testator to

dispose of his entire estate to his instituted heirs because
again in the preceding article there is no intention to dispose
the entire estate the rest will go by intestacy.
Art. 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)
So opposite ang sa Article 853. The intention is to give the
whole inheritance to the heirs but if you add up those given
to the heirs they exceed the estate.
Estate P120,000
A 1/4 of P120K = 30K
B 1/8 of P120K = 15K
C 2/3 of P120K = 80K
So we total, P125K, so SOBRA ng 5K.
It was his intention to give everything to A, B and C. So we dispose
the remaining 5K in the proportion that they had been instituted.
How do we divide? We cannot divide directly because it did not
reach one whole.
(Amount over total multiply by excess): So we will adjust
proportionately. 30/125, 15/125 and 80/125 x 5K.
30K over 125K x 5K = P1,200
15K over 125K x 5K = P600
80K over 125K x 5K = P3,200
(Then deduct that from amount):
30K 1,200 = 25,800 goes to A
15K 600 = 14,400 goes to B
80K 3,200 = 76,500 goes to C
Art. 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
61
the testator, shall annul the institution of heir; but the
devises and legacies shall be valid insofar as they are not
inofficious.
This is a very important provision. When we say preterition
there is an omission of a compulsory heir in the direct line.
OMISSION
First, what is the kind of omission being referred to? Is it
deliberate omission or inadvertent omission? Before if there
was deliberate omission the rule was it was disinheritance
and its rules will apply and if it was inadvertent then
preterition. But it has been settled that whatever kind of
omission it may be either deliberate or inadvertent it
does not matter as long as there is omission.
If it is an omission which says I hereby exclude my son A
from the will, that is not preterition, that is disinheritance
because he is now expressly excluding. In preterition the heir
is just not mentioned. He is not given any inheritance, legacy
or devise and he is not also expressly excluded, he is just
omitted. Omission in the sense that he is not given anything
at all in the will.
NOT HEIR, LEGATEE, DEVISEE NOR DONEE
Not given any inheritance;
Not given any legacy or devise in the will; or any

gratuitous disposition in his favor and;
Also during the lifetime of the testator the heir did not
receive any donation or any gratuitous disposition that
can be considered as an advance to his legitime.
ENTIRE ESTATE IS DISPOSED OF IN THE
WILL
compulsory heirs? We have the legitimate children

and descendants, in default of descendants legitimate
parents and ascendants, surviving spouse and
illegitimate children.
So who among these compulsory heirs could be preterited?
The direct line, ascending or descending, children
legitimate or illegitimate, parents, grandparents. The
spouse is not included but his/ her legitime will be respected.
Compulsory heirs in the direct whether living at the time of
the execution of the will or born after the death of the
testator.
Pursuant to our discussion before that an instituted heir
living or at least conceived at the time of death of the
testator.
Example:
The testator made a will and he disposed of his properties
pero that time he did not know that his wife was pregnant,
so he disposed of all his properties in favor of his children,
nothing was left for disposal for legal or intestate succession
and then he died and turns out that naa pa diay isa ka bata
na wala na-mention. How would that affect the will? Again,
the omission in preterition could be deliberate or inadvertent.
The law says living or at least conceived, born after the
death of the testator. When you say born after the death of
the testator, this has to be at least conceived because kung
wala siya na conceive pero born after the death of the
testator dili na sya anak ni testator so dili na sya compulsory
heir because it has to be the child of the testator.
What is the effect now if there is preterition?
Illustration 1:
A, B and C are the children of the testator. So the testator
left an estate worth 1.2M, during his lifetime, he executed a
last will and testament. What if the testator said, I hereby
institute A and B as my heirs. Is there preterition?
o
Because even if the heir is omitted in the will and he was not
given donation during the lifetime of the testator but only
has been disposed of in the will the other half was not
mentioned, there is no preterition. Why? Because the heir
even if omitted in the will, is not omitted from the
inheritance since there is still legal succession as to the
portion not mentioned in the will.
o
o
What if gamay nalang ang estate which is not disposed of in

the will? For example his supposed legitime is 500K and then
if we just rely on legal succession katong portion nawala na
dispose of the will, he will only receive say 2K kay gamay
nalang portion by legal succession, so, what is his remedy?
Well, that is still not preterition. Although he is entitled to
completion of his legitime. So ihatag gihapon ang balance to
complete his legitime but there is no preterition.
What if during the lifetime of the testator the omitted heir
has received a donation but he is not mentioned in the will
and all the estate have been disposed of in the will. So again,
as we mentioned there is no preterition. However, he is
entitled to the completion of his legitime, it is not preterition.
Omitted from the will and omitted from the inheritance.
What if in the will it says, I have 3 beautiful children A, B and
C. I want to dispose of the property in the following manner:
To A and to B mao lang. How about C? Is there
preterition. There is preterition, even if C was mentioned in
the opening sentence there was no legacy, devise or
inheritance given. Again, there is omission.
OMISSION OF ONE, SOME OR ALL OF THE
COMPULSORY HEIRS IN THE DIRECT LINE
Who are the heirs that can be preterited? The law is clear,
compulsory heirs in the direct line. Who are the
Again the first principle in institution is it covers

only the free portion. So he only institute A and
B as his heirs covering only the Free Portion.
We do not need to institute heirs in the
legitime.
So here there is no preterition since it cover
only the Free Portion.
Remember, if a will is capable of two
interpretations one which makes the will valid
and the other invalid, we follow the
interpretation which makes the will valid.
So 1.2M divided by 2 is 600K Free Portion and
600k legitime divided by 3, therefore, 200K
each for their legitime.
How about the Free Portion? Well the testator
instituted a will A and B to the free portion,
therefore, as to the free portion, only A and B
will inherit. So 600K divided by 2, this is how
we distribute.
Illustration 2:
If the will says, I hereby institute as sole heir to my entire
estate of 1.2M A and B only. Then that is very clear that C
has been preterited. Assuming that he did not receive any
donation during the lifetime of the testator.
o
So, what is the effect of preterition? The institution

of heirs shall be annulled. So you annul the
institution of A and B, and because the entire
institution has been annulled, we will divide the
estate by legal succession.
So divide the estate by according to the number of
heirs. So A, B and C, 400K each, that is one
consequence.
62
Illustration 3:
I hereby institute as my sole heirs to my entire estate of

1.2M, my children A, B and (additionally) best friend X, so
clearly, C has been preterited. What is now the effect of this
preterition?
o
The institution of heirs shall be annulled. So, the

institution of A, B and X will be annulled. The law
says, but legacies and devisees which are not
inofficious will be respected. Is X a legatee or
devisee? No he is an instituted heir. And the law
says, when there is preterition, the institution of
heirs shall be annulled.
Distribute the estate by legal succession because
you do not follow the will anymore. So 1.2M will be
divided only to the legal heirs, divided by 3 for A, B
and C 400K each.
X will not receive anything because his institution
has been annulled because of preterition. He is not
a compulsory heir or legal heir. He does not receive
anything in legal succession.
Illustration 4:
What if instead of having instituted X is given a legacy of
200K, so I hereby institute A and B as my sole heir to the
entire estate but I give a legacy of 200K to my best friend X.
Let us assume that C has been preterited. How do we divide
the estate?
o
Again because there is preterition, so the institution

of A and B is already annulled but we respect the
legacy or devise which is not inofficious.
What do we mean by not inofficious? Meaning, they
do not impair the legitimes, so how do we know, if
the legacy or devise is not inofficious? We
determine first how much is the Free Portion, if the
legacy or devise can be covered in the Free Portion
then it is not inofficious.
The estate is 1.2M divided by 2 so 600K legitime
and Free Portion is 600K. So can the 200K be
covered? It can be covered. The legacy of 200K will
be respected.
The remaining portion (of Free Portion) will be
divided equally by A, B and C by way of legal
succession.
Illustration 5:
How about if the legacy is 700K? Estate is 1.2M and C has
been preterited. How do we distribute the estate? Is the
legacy to X inofficious?
o
o
Yes it is inofficious, because it exceeds the free

portion.
What happens if it is inofficious? We dont give the
legacy? NO. We still give, we JUST REDUCE to cover
the legitime of the compulsory heir. We only reduce
to the extent of the exceeded portion. Pila atong
ibawas sa 700K? Only 100K.
Give to X 600K (Free Portion) and the remaining
600K will be divided equally among A, B and C by
legal succession.
Illustration 6:
X is a friend. The testator at the time of his death his
remaining estate is 1M then he INSTITUTED his sole heir to
his entire estate only A, B and his best friend X but during his
lifetime he gave a donation valued at 200K to his son C. Is
he preterited?
o
No, C is not preterited because he received a

donation. The donation shall be considered as an
advance to his legitime. So there is no preterition in
this case. Therefore, the institution of heirs shall
remain.
How do we distribute the estate? Value of the

estate at the time of death is 1M plus the donation
given to C, the value of all donation given by the
testator during his lifetime shall be brought back to
the estate. That is what we call collation. It will be
added back in order to prevent the testator from
circumventing the law on legitimes because you
cannot just deprive your heirs on the laws of
legitime unless there is a valid ground. The valid
grounds are provided under the provisions of
disinheritance. So, if we do not collate the testator
can just donate all his properties and leave nothing
to his compulsory heirs.
So, the value of the estate is 1.2M, how do we
distribute the 1.2M, again because there is no
preterition , we give effect to the will.
First, give the legitimes A, B and C are compulsory
heirs, the legitime is 600K. But because C already
received 200K in advance, upon death wala na siyay
madawat, it will be charged as his advance on the
legitime.
And the Free Portion of 600K will be divided equally
between A, B and X. X will receive because there is
no preterition. That is how we distribute.
Illustration 7:
There is a spouse omitted. Assuming, the estate is 2M, the
testator gave his property to A, B and C his children and to
his best friend. He did not give anything at all to his spouse.
o
o
Is the spouse preterited? NO. She is not a

compulsory heir in the direct line.
First, distribute the legitime, under the law on
testamentary succession, the spouse is entitled to
equal share of one legitimate child if there are two
or more legitimate children. 2M divided by 2 is 1M
and then 1M divided by 3, pila man na siya?
In the Free Portion, wala nay labot si spouse
because she is not instituted. So divide the free
portion to all of them (4 = 3 children and best
friend). The institution shall be respected because
there is no preterition.
What if during the lifetime of the testator, he donated to his

spouse? What is the consequence of this donation? Shall we
consider that donation an advance to the legitime of the
spouse? NO. Because during the lifetime of the spouses
during marriage they are NOT allowed to make a sale or
donate to each other. So any donation that is given by the
spouse to the other is void that being considered as a
deduction on the estate of the testator, it will not be
deducted on the value of his estate, part gihapon toh siya sa
iyang estate. Assuming during his lifetime he donated 200K
to his spouse, it will not be deducted on the value of his
estate. There is no collation because in the first place the
donation is not valid. Part lang toh siya sa estate, wala siya
na deduct sa whole, that is how we compute.
So again in preterition, if a compulsory heir in the direct line
is omitted the institution of an heir will be annulled. Just
remember that the omitted heir should survive the testator
because even if he has been preterited in the will but he dies
ahead of the testator so here the effect of preterition will be
extinguished. Meaning the institution of heirs in the will, will
still be respected. Because the supposedly preterited heir
that has predeceased did not in fact become an heir of the
testator. For you to become an heir you should survive the
testator except if the preterited heir has a representative.
Halimbawa, si C is preterited but died ahead of the testator
pero naa siyay anak. His child can represent him under the
concept of representation. The representative is elevated to
the degree and status of the person represented. So, naa
gihapon preterition.
63
Can an adopted child be preterited? Yes. Because an
adopted child has the same successional rights as a
legitimate child.
JLT Agro v. Balansag
In this case the Supreme Court said that there is no
preterition. In order to have preterition there must be total
omission in the will and in this case there was no will
executed. Without a will being executed there could be no
preterition. It was premature if not irrelevant to speak of
preterition in the absence of the will. Please remember that.
as an heir to the free portion. With respect to the free

portion, the son who is a compulsory heir is also a voluntary
heir. We follow the first paragraph insofar that portion is
concerned. He is a voluntary heir, kung mamatay sya una sa
testator. As to that portion, nagihatag saiyaha gikan sa Free
Portion he cannot be represented it can go to the mass of his
estate and distributed among all the legal heirs. Kung naay
anak si heir, so dili maka-claim iyahang mga anak sa katong
portion na gihatag out of the Free Portion.
Pero ang legal heirs pud tong iyahang mga anak possible na
maka-claim sila pero dli tanan.
Example:
Art. 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)
What if a child or descendant has been omitted in the will,
actually, this can apply both whether there is preterition or
no preterition because if you are omitted and there is
preterition the institution of heirs will be annulled. If there is
preterition you just divide the entire estate equally among
the compulsory heirs.
If there is no preterition, the omitted heir has been given a
donation during the lifetime of the testator but he is just
entitled to the completion of his legitime.
Where do we get that portion to be used to complete the
legitime of the omitted heir? First, it should be taken from
the portion of the estate which has not disposed of by the
will, katong wala pa nahatag maski kinsa. For example it is
not enough you reduce the legacies, devisees and voluntary
heirs. In all cases you do not deduct from the legitime of the
compulsory heirs. Respect the legitime. So didto lang jud ka
sa first priority na not disposed of by will, katong wala pa
nahatag maski kinsa.
Art. 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)
Please remember this principle, a voluntary heir when he
dies that is the end of it. He transmits nothing to his
own heirs. He cannot be represented.
Example:
The testator gave of his estate to his best friend. But his
best friend died ahead of the testator but the best friend was
survived by his own children. What will happen now to the
of the estate given by the testator to his best friend as his
inheritance. Can the children of the best friend get it back?
NO. Because the bestfriend being a voluntary heir, he is just
instiuted to the Free Portion. He did not become an heir in
the first place because he predeceased, again, he should
survive the testator to be enable to inherit. So a voluntary
heir cannot be represented.
How about a compulsory heir?
Example:
A compulsory heir, we are referring to the legitimes because
there are cases when a compulsory heir can also be given
part of the free portion. For example, the testator has a son,
the son is a compulsory heir, assuming the estate is 1.2M.
Duha iya anak. Divide by 2 600K and divide by 2 for the
legitime is 300K. Now, the testator can also institute the son
This is the estate (1.2M) so 600K legitime, 600K free portion

so A & B are the children of the testator. For example A has
been instituted to one half of the free portion 300K, so he is
a voluntary heir to this portion. Halimbawa si A naa pud anak
si A1. Pagnamatay si A ahead of the testator, A1 cannot
claim the 300K by right of representation. Asa man ni maadtoang 300K? Sa estate. Tungaon tanan sa legal heirs, so
dili iyaha (A1) tanan ang 300K, mutunga pa sya kay B na
legal heir with respect to the portion na nahimong vacant
because of the predecease of A. But as to his legitime, A is
also a compulsory heir, he is entitled to the legitime of 300K.
If A dies ahead of the testator, A can be represented. A
compulsory heir as a general rule also transmits nothing to
his own heirs except by virtue of the the right of
representation. He can be represented, so, insofar his
legitime is concerned na P300K, if he predeceases the
testator his share can now be claimed by A by right of
representation.
So that is the difference. So kung katong sa free portion
sya pwede i-represent ni A, it would go to the mass
intestate katong pwede i-dispose by legal succession, so
legal heirs which may include A but not A alone but
legitime kay A jud sya ma-adto dli sa representative.
dli
of
sa
sa
Again. A compulsory heir as a general rule transmits nothing

to his heirs except in case of the right of representation. But
again, a person can be represented only if he predeceases,
becomes incapacitated, if he is disinherited, but if he
repudiates or renounces he cannot be represented. That is
the rule insofar Art 856 is concerned.
Going back to the first par. of Art 856, it mentions that a
voluntary heir who dies before the testator transmits nothing
to his heirs. When you say heir, one that has been instituted
to an aliquot share, does this also covers legatees or
devisees? YES. Because legatees or devisees, they are
also given properties from the Free Portion, not from
the legitimes.
SECTION 3. Substitution of Heirs
Art. 857. Substitution is the appointment of another heir so

that he may enter into the inheritance in default of the heir
originally instituted. (n)
If the first or original heir cannot receive then he will be
substituted by another. Based on the definition on Art 857. It
is either A or B because in default of the heir originally
instituted. So this is actually not correct definition of
substitution. Why? Because under the New Civil Code, we
actually have two kinds of substitution. The first kind is the
direct substitution, that is the one being referred in Art 857.
The second kind is Indirect Substitution, the original heir and
the substitute both inherit but one after the other. It is not
OR but AND. Both of them will enjoy the property one after
the other. The only kind of indirect substitution under the
New Civil Code is the Fidei commissary substitution, that is
64
the only kind of indirect substitution. Whereas, direct
substitution we have simple or common, brief or
compendious, reciprocal which we will discuss later.
There is a suggestion for the definition, substitution is a
disposition by virtue of which a third person is called to
receive a hereditary property in lieu of another person. So
this will cover both direct substitution and indirect
substitution. We can also insert that in Art 857. Substitution
is the appointment of another heir so that he may enter the
inheritance in default of or after the heir originally instituted.
Again, that will also cover indirect substitution.
So here in the 2nd paragraph of Art 859, if the testator

provides for a substitution but did not mention what is the
ground for the substitution then it can cover the three
incapacity, predecease and repudiation.
Art. 860. Two or more persons may be substituted for one;
and one person for two or more heirs. (778)
This article refers to two kinds of substitution:
B.
Brief substitution
So this is two or more heirs take the place of one.
Art. 858. Substitution of heirs may be:
Compendious substitution
(1) Simple or common;
There are two or more heirs originally instituted but

the substitute is only one.
(2) Brief or compendious;

(3) Reciprocal; or
(4) Fideicommissary. (n)
As I said before items 1 to 3 is direct substitution and item 4
is Indirect Substitution. Direct substitution is mentioned in
Art 859.
Art. 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)
A.
Simple or common substitution

What are the grounds for simple or common
substitution? We have predecease, renunciation or
incapacity. In case such heir should die before the
testator, renounced or incapacitated to inherit.
In those cases, it will be the substitute who will
receive the property because in the order of priority,
testacy is favored over intestacy. As much as
possible we have to give effect to the will of the
testator.
So the rule here is that, first institution, if the testator

instituted an heir then give effect to the institution.
If the instituted heir cannot for some reason receive the
inheritance then we determine if there is a substitute.
Now if there is no substitute, then, we evaluate if the right of
representation can apply. Because in representation, if the
original heir cannot receive due to predecease, incapacity his
representative will receive in his behalf.
But if the right of representation is not proper. Then we will
go to the rule on accretion. If accretion is possible. What
do we mean by accretion? Basically, if there are two or more
heirs instituted to one inheritance and if one of them cannot
receive either because of predecease, incapacity or
repudiation his share will be given to the co-heir. So it will
accrue to the co-heir. If accretion still is not possible, then
the last result will be intestacy.
So please do not forget the order of priority. ISRAI:
1.
2.
3.
4.
5.
Institution
Substitution
Representation
Accretion
Intestacy
Art. 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.
C.
Reciprocal substitution
The heirs instituted is also the substitute for the
other.
Example: A and B is instituted. If A becomes
incapacitated or he predeceases etc., B is the
substitute. Si B pud sa iyang share. Walay problema
pag ang share is of A and B. Kung mawala si A,
ang iyahang share ma-adto kay B. For example kay
A is 2/3 kay B is 1/3. Again, it doesnt matter noh.
Halimbawa, it is B who becomes incapacitated, then
his share will go to A. It doesnt matter if B is only
instituted 1/3 because he substituted A.
Example: A B and C are heirs and they are also
instituted as substitute for each other so kung A
dies B and C will substitute and vice versa. For
example, it is C who becomes incapacitated, how do
we effect the substitution? First, we determine the
shares as originally instituted. SO A and B have the
same right to Cs share in the substitution as well as
the institution. Proportional distribution not dividing
it equally among the two if different sharing when
instituted.
Art. 862. The substitute shall be subject to the same

charges and conditions imposed upon the instituted heir,
unless and testator has expressly provided the contrary, or
the charges or conditions are personally applicable only to
the heir instituted. (780)
General rule: If the original heir have been given
conditions, it is understood that the substitute will be
imposed the same conditions and charges. So kung gibutang
sa original heir na dapat maka-pasar pud sya sa bar exam
mao pud na sya supposedly ang condition sa substitute.
Except: If the testator has expressly provided the contrary
na dili sya subject sa same condition or the charges or
conditions are personally applicable to the heir originally
instituted. For example the original heir is a law student and
the substitute is a lawyer dili na man na mag-apply sa iyaha
ang condition to pass the Bar Exam.
Art. 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
65
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)
Again, this is the only indirect substitution provided in
the New Civil Code. So based on Art 863 you can see that
the first heir and the second heir both inherit. They will enjoy
the property although not at the same time but one after the
other.
In direct substitution, simple, compendious or reciprocal they
will not enjoy with the original heir. It is only either the
original or the substitute.
D. Fideicommissary substitution
Under the NCC, there is a limitation on the right of the
testator to prohibit the disposition of the property. He can
prohibit the partition of the property but for a period not
exceeding 20 years.
In a fideicommissary substitution, the entailment of the
property may even exceed 20 years if it is a fideicommissary
substitution.
What is the concept of a fideicommissary substitution? There
is a first heir, he will enjoy the property. He has the right to
use the property, benefit from the property but he cannot
dispose of the property, he cannot destroy the property.
Why? Because as provided in the article, the fiduciary or the
first heir has the obligation to preserve and to transmit the
property to a second heir. It may be the whole of the
property or the portion of the property. So he cannot sell or
dispose, he is just like a usufructuary na only use lang ang
naa kay first heir. And then, after a certain period of time
provided by the testator in the will, the property will
eventually go to the second heir. What is given to the second
heir, is not merely usufruct but is full ownership. Sa second
heir wala nay limitation or restriction, so, he becomes the full
owner of the property.
SPECIFIC REQUIREMENTS
(1) There is an obligation upon the first heir to
preserve and transmit to a second heir the whole
or part of the inheritance;
(2) The first heir and the second heir, their
relationship should not go beyond one degree.
What do we mean by one degree, it means one
generation, so parent and child or child and parent basta
one generation.
Can a corporation or juridical person be instituted? NO.
Because we cannot apply the rule on one generation or
degree. Juridical entities cannot have generation only
natural persons have generation.
(3) First and second heir should be living at the time
of death of the testator.
With respect to the term living, at least conceived and
follow Art 40 and 41 at the time of death.
What if the second heir dies ahead of the first heir? Is
fideicommissary substitution still possible? It does not
matter as long as they did not die ahead of the testator.
What is important is that they should not predecease the
testator.
dispose of the property. When we go to legitimes, the law

says that you cannot impose any condition, burden, charge,
substitution upon the legitime. Because legitimes are given
to the compulsory heirs as a matter of force of law. This
portion of property is reserved by law for the compulsory
heirs, in fact, again the testator cannot deprive his
compulsory heirs of their legitimes without a valid ground.
There has to be a valid ground. If you are allowed, to impose
conditions for example substitution upon the legitime the
testator may easily circumvent the law on legitimes. For
example, he imposes very difficult conditions on the legitime
already amounts to deprivation of the legitime.
So again, that is the reason why you cannot burden the
legitime. There are only two situations under the New Civil
Code where the legitime can be burdened. No. 1 that is the
concept of reserve troncal and No. 2 the testator may
prohibit the partition of the estate even the legitime but for a
period not exceeding 20 years.
Art. 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)
How can you institute a fidei commissary substitution. There
are two ways:
(1) You name it
substitution; or
as
fidei
commissary
(2) Even without labeling it as a fidei commissary

substitution, you expressly impose upon the
first heir to reserve the property and transmit
the property to a second heir.
Although, you do not have to use the exact words
preserve and transmit. As long as the effect would
be the same that there is an obligation to preserve
and transmit like in one case the term was passed
on and unimpaired to the second heir. That is the
same as preserving and transmitting. So not exactly
the same words used in the law.
The second paragraph just refer to the allowable expenses
because if we just allow any expenses to be deducted, the
second heir might not have receive something from the first
heir because of all the deductions.
Art. 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)
Again, what is important is that the first and second heir are
living at the time of death of the testator. It does not matter
if the second heir dies ahead of the first heir. What will
happen to the fidei commissary substitution? Does the first
heir has the same obligation to deliver? Yes because what is
important is that at the time of death of the testator, silang
duha buhi. So after 10 years naa gihapon obligation si first
heir to deliver to the second heir but because the second heir
is already dead. He should deliver to the heirs of the second
heir.
SEPT 10 (RJV)
Art. 864. A fideicommissary substitution can never burden

the legitime. (782a)
Again, in fideicommissary substitution it allows entailment of
the property for a certain period of time. For example, the
first heir because of the fideicommissary substitution cannot
Article 867. The following shall NOT take effect: xxx

Take note of the prohibitions in Article 867. As discussed
before, how can Fideicommissary substitution be constituted?
66
1.
By expressly naming the institution as subject to a

Fideicommissary substitution. In an express manner
by giving the name as Fideicommissary substitution.
2.
Even without naming it as Fideicommissary

substitution but imposing upon the first heir an
obligation to preserve and transmit the property to
a second heir.
(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; xxx
So without naming it as Fideicommissary substitution or
without imposing an obligation upon the first heir, there can
be no Fideicommissary substitution. There is no obligation on
the first heir to deliver on the second heir. But in relation to
Article 868, if the Fideicommissary substitution does not take
effect, it does not prejudice the rights of the first heir. The
first heir can receive without being subjected to a
Fideicommissary substitution
(2) Provisions which contain a perpetual prohibition to
alienate, and even a temporary one, beyond the limit fixed in
article 863; xxx
This is the prohibition to alienate or partition which can be
imposed by the testator but only a period not exceeding 20
years. If he says, you will not partition this property forever.
This provision will be valid but only up to 20 years and the
rest will be void even a temporary one which is beyond the
limits fixed by Article 863. If he say-perpetual, the heir
cannot have partition the property forever. If he saytemporary, there might be a period which should not exceed
20 years and even beyond the limit provided by Article 863.
Example:
The testator instituted A as heir to a parcel of land. He said, I
hereby give to A the land in Calinan, Davao City but A shall
keep it and shall not alienate it for 15 years. Is it a valid
prohibition? Yes, as this does not exceed 20 years. The
testator died in the year 2000, so A effectively became the
owner of the land upon the death of the testator. After 5
years, A died and survived by his son B and the land was
inherited by B. Is B subject to the same prohibition? Yes
because he just stepped into the shoes of his predecessor.
Whatever obligation of the predecessor will be passed on to
the heirs. So in 2005, he already consumed 5 years on which
he is obliged to keep the property intact and not alienate it
for a period. Thus, the remaining period is 10 years.
If after 5 years (2010), B also died and survived by his son
C. Only 5 years remain from the prohibition by the testator.
The same property is inherited by C. Is C obliged to respect
the prohibition? No more since it is already beyond the limit
as provided by Article 863 which means the prohibition does
not go beyond one degree from the heir originally instituted.
Thus, the prohibition is only binding to B and does not bind C
anymore.
If it is a fideicommissary substitution, the testator instituted
A as first heir subject to the condition that A will reserve the
property for a period of 30 years and transmit it afterwards
to B which is one degree related to A. Is it valid? Yes
because it is a fideicommissary substitution so that is the
only time that he can hold the property for a longer period of
time. If it is not a fideicommissary substitution, the answer is
no.
(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; xxx

For example, the testator instituted A as heir and A should
remit a certain income to B for a period of 3 years. Then B to
C, and C to D. Would that be valid? No, the law says, you
can only go one degree and in this case, it is only A to B
only. Thus, it is only one degree from the person originally
instituted.
(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.
For example, the testator provides that he leaves a certain
property to A so that he may be able to invest the same
according my secret instructions communicated to him. The
same is not allowed because how can it be insured that heir
complied with the instructions of the testator. It would be
very dangerous.
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)
It was already discussed that when a fideicommissary
substitution is null and void, it does not prejudice the first
heir designated. There is simply no fideicommissary clause,
making the substitution absolute without the obligation to
preserve and transmit.
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)
Here, the testator gives the legal ownership to one and the
usufruct to another. The first paragraph says it is valid. For
example, the testator instituted X as heir to his land. X is the
legal owner which means he has the title and not beneficial
use of the land since it belongs to b, C, D and E. If these are
simultaneous, as they were allowed to use the land at the
same time, it is valid since there is no prohibition.
Illustration:
X holds the title but the beneficial use belongs to A, then
goes to B if A dies, to C if B dies, etc. But it can only be
limited to the limitations provided by Article 863 if only
successive. Thus, it is only one degree as to the enjoyment
of the property.
Article 870. The dispositions of the testator declaring all or
part of the estate inalienable for more than twenty years are
void. (n)
This was already discussed. Take note that 20 years is the
maximum. This was answered before in the bar
examinations.
Before going to Article 871, the next section talks about
institution subject to condition, subject to term and subject
to a mode.
There are 4 kinds of institution:
1) SIMPLE or Pure Institution One that is not
subject to condition, terms or mode. Upon the
death of the testator, the instituted heir already
acquired ownership over the property. It has not to
be for a period; it does not necessarily observe the
67
conditions; and it does not bound to comply with
any requisite.
2) CONDITIONAL Institution There is a condition
imposed. It can be a condition and the fulfillment of
which is required for the effectivity of the institution
or the fulfillment of which extinguishes the
institution. Just like in Obligations and Contracts,
condition refers to future and certain event upon
which the effectivity or extinguishment of an
institution depends.
SECTION 4. Conditional Testamentary Dispositions
and Testamentary Dispositions With a Term
Article 871. The institution of an heir may be made

conditionally, or for a certain purpose or cause. (790a)
As to conditions, there are several kinds of
conditions which can be imposed in an institution.
As to effect:
i.
Suspensive Condition The effectivity of

the
obligation
depends
upon
the
happening or fulfillment of the condition.
Example: I will give a car to A if he passes
the bar.
ii.
Resolutory Condition The happening or

the fulfillment of the condition extinguishes
the obligation. Example: I will give a car to
A as long as he remains single.
As to cause:
i.
ii.
iii.
Potastative Condition The fulfillment of

the obligation depends upon the will of the
heir, legatee or devisee. Example: A will
give a car to B (heir) will learn how to
drive.
Casual Condition The fulfillment of the
obligation depends upon chance or will of
a 3rd person. Example: A will give his car to
B if Bs name will be picked or if C agrees.
Mixed Condition The fulfillment of the
obligation depends partly upon the will of
the heir and partly upon chance or will of
3rd person. Example: A will give his car to
B if Bs name will be picked in a raffle and
if B will accept the same.
As to mode:
i.
Positive
ii.
Negative
As to form:
i.
Express
ii.
Implied
As to possibility of fulfillment:
i.
Possible
ii.
Impossible
In Obligations and Contracts, if the obligation

depends upon a potestative condition, the validity of
the obligation depends upon what or whom the
condition is imposed. It is void when an obligation is
subject to a suspensive and potestative condition on
the part of the debtor since the obligation will not
arise until after the happening of the condition. But
the happening of the condition is purely dependent

upon the will of the debtor, so in that case, the
obligation will never arise since it is of human
nature that humans do not like obligations and as
much as possible, we like to be free. On the other
hand, all others, it is valid, for instance, when an
obligation is subject to resolutory and potestative
conditions on the part of the debtor because the
obligation will immediately arise and it will end upon
the fulfillment of the obligation so the debtor will
comply the condition.
The institution subject of suspensive and potestative
condition on the part of the heir is valid because an
heir would really fulfill the condition. Unlike in the
concept of ObliCon, it is another concept when it
comes to institution.
3) Institution subject to a TERM There is a need
to wait for the arrival of the term or period before
the institution is given effect or for the institution to
end.
4) MODAL Institution There is a certain purpose
or cause which is further explained in Article 882.
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)
It was already mentioned before that a testator cannot
impose any charge, condition, or substitution upon the
legitimes because if he can do that, he might impose difficult
and unreasonable conditions that would be able to effectively
defeat the law on legitimes. Thus, the legitimes should go to
the heirs unimpaired, unburdened and without any condition.
The only kind of burden that may be imposed by the testator
upon the legitime would be:
(1) prohibition of partition only for 20 years;
(2) and reserva troncal as provided by law.
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)
Impossible conditions are contrary to law and public
customs. These should just be disregarded because the
underlying principle in institution is the liberality and
generosity of the testator.
Example:
I hereby institute A as my heir if a can fly using his hands.
Of course, it is not possible.
If for example it says, I hereby institute A as my heir if she
becomes beautiful, is it possible? The answer is it depends.
(HAHA!)
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)
68
Here, the condition is not to contract a first or subsequent
marriage.
General Rule: It shall be considered as not written.
Why is it not considered not written? Because this condition
would lead instead to moral arrangements. In prohibiting a
person to marry and the person really wanted to marry the
other, in order not to circumvent the condition, they end up
living in without marriage. So, it ends up something to this
kind of arrangement. Thus, it is not allowed.
Exception: Unless such condition has been imposed on the
widow or widower by the deceased spouse, or by the latter's
ascendants or descendants.
Take note, this applies only to the free portion because we
cannot impose anything in the legitime. If the testator says, I
hereby give to my wife a house and lot in Davao City
provided that she will not remarry. This condition is valid for
sentimental reasons. Also, the testator can control since it is
a free portion, but it could be reasonable in his part because
it is his property. If he will allow the wife to remarry, the
property which inherited to the wife from him forms part of
the wifes absolute community with the new husband.
Another thing is when the property is given by the ascendant
or the descendant of the testator for the same reason.
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)
Here, it is a condition imposed by the testator to the heir. For
example, I hereby give to A my car provided that A will also
give to me (or to my son), his house. This is what is called
Disposition Captatoria and according to Article 875, it is not
valid as it tends to convert the will into a contract. As
mentioned, will must be unilateral not bilateral. The giving
must be because of ones desire and generosity and not of
expecting something in return as it turn now into a contract.
In disposition captatoria, it is both the condition and
disposition is void.
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. (795a)
Here, it is a purely potestative condition. The rule is
when a potestative condition is imposed, the heir must fulfill
as soon as he learns the testators death. Meaning, it should
be fulfilled upon the day of knowledge on the death of the
testator. The heir is not required to fulfill the condition within
the lifetime of the testator since as we all know, will is
irrevocable at anytime during the lifetime of the testator.
The second paragraph provides that the rule shall not apply
when the condition, already complied with, cannot be fulfilled
again. For example, I hereby give to A my jewelries if he
puts a flower tattoo in his left arm. If he already had the
tattoo during the lifetime of the testator, then, the testator
died and it came to his knowledge. This time, he is not
required to put another tattoo.
With respect to the fulfillment, substantial compliance will
suffice because the testator gives the discretion upon the
heir for being purely potestative and having this kind of
discretion, the testator could have trusted the heir.
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)
Here, the condition is casual and mixed. These are not
dependent entirely upon the will of the heir. The law says it
shall be sufficient if it happen or be fulfilled at any time
before or after the death of the testator because it is difficult
to comply with this since it is beyond the control of the heir.
Thus, it is sufficient that it will be complied at any time
before or after the death of the testator, unless he has
provided otherwise.
With respect to compliance, authorities suggest that because
the testator mandated that the condition is dependent upon
chance, being casual and mixed, the testator does not trust
the heir that much. Here, it should be strict compliance.
Further, the law says 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. For example, I will give a parcel of land to A if
he becomes a lawyer BUT (1) he does not know that at the
time of making of the will, A is already a lawyer OR (2) he
has knowledge that A is already a lawyer and he still
imposed that condition, in both cases, it shall be deemed as
complied with if it is in a nature that it cannot be complied
with again. But, if the heir can comply it again, he should
comply it again.
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)
Here, it is an institution subject to a term or period.
Also, there is the element of certainty. The period or time will
really arrive. For example, in 2000, the testator provided that
I hereby give my car to A after two years from the day of my
death. So, in 2002, A will get the car. But if A died in 2001,
the law says it does not prevent the instituted heir from
acquiring his rights and transmitting them to his heirs even
before the arrival of the term. So if heir-A dies before the
arrival of the term, his right will be transferred to his own
heirs. In 2002, the estate of the testator will give the car to
the heirs of A.
This is different from a suspensive condition because in a
suspensive condition, unless the condition is fulfilled, the heir
does not acquire any right in the inheritance so the
effectivity of the inheritance is subordinate to the fulfillment
of the condition.
However, if it is a term, there is already a right acquired.
Only that, the enjoyment of the right is suspended in the
meantime. Even if the heir dies before the arrival of the
term, he already acquired rights to the inheritance and he
can transfer it to his own heirs.
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)
69
It talks about a negative potestative condition. The
condition is purely dependent upon the heir and that
condition is not to do or not to give. It is the security of the
estate that the heir will not do or not give what has been
prohibited. For example, I hereby give my car to A if he will
not cut his hair. It is potestative on the part of A since it is
depends on him if he cuts his hair or not. Also, it is
immediately executory but the heir must give a security that
he will not do what is prohibited. If he does, he must return
what he has received. It is caucion muciana (the term
given for the security).
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)
These are the instances when the estate is placed under
administration.
1.
If the heir be instituted under a suspensive condition. In

the meantime that the condition is not yet fulfilled, it
should still not be delivered to the heir. The property will
be under administration until the condition is fulfilled or
until it becomes certain that it cannot be fulfilled.
2.
If the heir be instituted under a term. In the meantime

that the term does not yet arrived, the property will be
under administration until the arrival of the term. So
when the term ends, the property will be delivered to
the heirs.
The administration ends:

1.
If institution is subject to suspensive condition, when the

condition is fulfilled and the property shall be delivered
to the heir.
2.
If it is subject to suspensive condition, when it becomes

certain that the condition cannot be fulfilled and the
property shall be delivered to the heir.
3.
If it is subject to a term, upon the arrival of the term.
The second paragraph applies to situation where the

institution is subject to a negative potestative condition.
Supposedly, it is immediately executor upon the payment of
the bond. In the meantime that the heir has not yet paid the
bond, the property will be placed under administration.
Article 881. The appointment of the administrator of the
estate mentioned in the preceding article, as well as the
manner of the administration and the rights and obligations
of the administrator shall be governed by the Rules of Court.
(804a)
Administration of property will be discussed deeply in your
special proceedings. Just remember that if the testator left a
will and he appointed a person who shall administer his
estate. The person is known as the executor. If he made a
will but did not appoint an executor, there has to be
someone to administer the properties, so that person will be
the administrator. If there is no will and no appointed
executor, during the pendency of the distribution, the court
will appoint an administrator. If a person is male, his is called
executor or administrator and if female, she is called an
executrix or administratrix. The administrator has several
duties.
Basically, his duties are:
to oversee the estate,
to reserve the estate,

to pay the debts of the estate, and
to distribute the estate among the heirs.
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 X should disregard
this obligation. (797a)
This is called modal institution. As mentioned in Article
882, it is an institution where there is a 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. For example, I hereby institute A as heir of my
property but he has to set up a foundation and use the
proceeds of the inheritance for the said foundation or I
hereby give to A this riceland and a quarter will be given to X
for the proceeds of harvest each year so that is an
application. A charge would be- I hereby give to a half of my
estate but he will give an allowance to X until he dies.
The rule says if there is a statement of the object of the
institution, or application of the property left, or a charge
imposed by him, these will not be considered as condition.
The institution is effective immediately. There is no need to
wait for the heir to apply the property based on the
instruction of the testator or no need to wait to pay all
charges before he can enter into the inheritance. These are
obligations of the heir but they do not determine the
effectivity of the inheritance. The heir has to do these
charges as part of his obligation. Effective upon the death of
the testator, he enters into the property. He assumes all the
rights and obligations of the heir instituted but he has to
comply, otherwise, he forfeits the inheritance. This is the
negative aspect of the institution.
There is a need to distinguish a condition and a mode as it
determines when an heir acquired ownership on the property
left.
Mode
Condition
Heir immediately enters and

enjoys the property
Heir cannot enter or enjoy the

property until after the condition
has been fulfilled
Obligatory: Heir has to do what

is imposed by the testator
under the pain of forfeiting the
inheritance in case of noncompliance
Not obligatory: Heir is not obliged

to fulfill the condition as it may
depend upon chance or of 3rd
persons and the condition may or
may not happen and even beyond
the control of the heir.
If in doubt if the institution is modal or conditional,

the doubt shall be resolved in favor of a mode.
Example: I hereby give my properties to A but A has to form
a foundation and he will apply a half of the income of this
inheritance to the foundation. Is it a mode or condition? If it
is a condition, the heir has to first form the foundation before
he can get the inheritance. If it is a mode, he immediately
gets his inheritance and he must form a foundation in order
not to forfeit it.
In case of doubt, the setting up of foundation is a mode
because between mode and condition, the mode is more
consistent with the liberality and generosity of the testator.
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In a mode, the inheritance is immediately effective whereas
in a condition, it may or may not happen. Thus, there is
more certainty in the part of the mode other than condition.
If there is doubt whether one is of a mode or a
suggestion, the doubt shall be resolved in favor of the
suggestion.
Suggestion is more in keeping with the concept of liberality
and generosity of the testator which is the underlying reason
for succession. If it is suggestion, even if the heir does not
follow, he shall not lose the inheritance. But if it is a mode,
non-compliance means forfeiture.
Rabadilla vs Court of Appeals
In the Codicil of testatrix, Dr. Rabadilla (predecessor in
interest of petitioner) was instituted as a devisee of Lot No.
1392 contained the following provisions among others:
Rabadilla shall have the obligation until he dies,

every year to give to Belleza 100 piculs of sugar
until Belleza dies;
Should Rabadilla die, his heir to whom he shall give

Lot No. 1392 shall have the obligation to still give
yearly, the sugar as specified to Belleza.
In the event that the lot is sold, leased, or

mortgaged, the buyer, lessee, mortgagee shall have
also the obligation to respect and deliver yearly
sugar to Belleza. Should the command be not
respected Belleza shall immediately seize the lot and
turn it over to the testarix near descendants.
Not a simple substitution.

In simple substitutions, the second heir takes the inheritance
in default of the first heir by reason of incapacity, predecease
or renunciation. The Codicil does not provide that should Dr.
Rabadilla default due to predecease, incapacity or
renunciation, the testatrix's near descendants would
substitute him. What the Codicil provides is that, should Dr.
Jorge Rabadilla or his heirs not fulfill the conditions imposed
in the Codicil, the property referred to shall be seized and
turned over to the testatrixs near descendants.
No fideicommissary substitution.
In a fideicommissary substitution, the first heir is strictly
mandated to preserve the property and to transmit the same
later to the second heir. Here, the instituted heir is in fact
allowed under the Codicil to alienate the property provided
the negotiation is with the near descendants or the sister of
the testatrix. Thus, a very important element of a
fideicommissary substitution is lacking, the obligation clearly
imposing upon the first heir, the preservation of the property
and its transmission to the second heir. Also, the near
descendants' right to inherit from the testatrix is not definite.
The property will only pass to them should Dr. Rabadilla of
his heirs not fulfill the obligation to deliver part of the
usufruct to private respondent. Moreover, fideicommissary
substitution is void if the first heir is not related by first
degree to the second heir. In the case under scrutiny, the
near descendants are not all related to the instituted heir, Dr.
Rabadilla.
Not a conditional institution.
It is clear that the testatrix intended that the lot be inherited
by Dr. Rabadilla. It is likewise clearly worded that the
testatrix imposed an obligation on the said instituted heir and
his successors-in-interest to deliver sugar to Belleza, during
the lifetime of the latter. However, the testatrix did not make
Dr. Rabadillas inheritance and the effectivity of his
institution as a devisee, dependent on the performance of
the said obligation. It is clear though that should the
obligation be not compiled with the property shall be turned
over to the testatrix near descendants. Since testamentary

dispositions are generally acts of liberality an obligation
imposed upon the heir should not be considered a condition
unless it clearly appears from the Will itself that such was the
intention of the testator. In case of doubt, the institution
should be considered as modal not conditional.
The manner of institution of Dr. Rabadilla is modal in nature
because it imposes a charge upon the instituted heir without,
however, affecting the efficacy of such institution. A mode
imposes an obligation upon the heir or legatee but it does
not affect the efficacy of his rights to the succession. On the
other hand, in a conditional testamentary disposition, the
condition must happen or be fulfilled in order for the heir to
be entitled to succeed the testator. The condition suspends
but does not obligate; and the mode obligates but does not
suspend. To some extent, it is similar to a resolutory
condition.
September 21 (EAE)
Art. 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)
Under Article 883, in the institution, meaning the modal
institution referred to in 882, diba there are certain
obligations imposed by the testator, if those cannot be
complied with in the exact manner stated by the testator,
substantial compliance will be sufficient.
Now insofar as a conditional institution is concerned, if the
heir also is not able to fulfill the condition and the reason for
the nonfulfillment is due to the fault of the persons
interested in the condition, like for example, what will
happen if the instituted heir cannot get the share? Were
referring here to the voluntary heir. To whom shall his share
go? It will go to the legal heirs because supposedly if the
condition cannot be fulfilled the institution will not be given
effect. The share of the instituted heir will go to the legal
heirs.
Example:
The legal heirs themselves prevented the heir from fulfilling
the condition? What will happen? Will the instituted heir
forfeit the inheritance? The law says it shall be deemed
complied with. So there shall be constructive fulfillment.
The first paragraph refers to substantial compliance; the
second paragraph refers to constructive fulfillment. Even if it
is not fulfilled it is deemed complied with, so that the
instituted heir will still get the inheritance.
Art. 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.
You already discussed in your Obligations and Contracts the
concept of conditional obligations. We just discussed the
concept of institution subject to conditions. The same rules in
conditional obligations can be applied to conditional
institutions except when certain rules specifically apply only
to conditional institutions.
Example:
The concept of impossible conditions. If an institution is
subject to an impossible condition, what will happen? The
condition will be deemed not written. So give effect to the
institution. But in Obligations, if the obligation is subject to
71
an impossible condition, the conditional obligation is void. So,
we dont say na it is deemed not written. Because in
obligations, the imposition of the condition is an important
part of the obligation. It goes into the consideration of the
obligation.
If there is an impossibility that is attached to the
consideration, the existence of the obligation is itself
affected. We cannot say that in an obligation the underlying
consideration is the liberality or generosity of the creditor,
no. But in succession it is really the underlying
consideration the generosity or the liberality of the
testator, so we just disregard the impossible condition.
Art. 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)
Were now referring to an institution subject to a term or
period.
Again, as we have already discussed, a period is a certain
and future event which must necessarily come. So certainty
plus futurity.
I will give this one hectare land to B five years after my
death. That is a period. It will necessarily come.
I will give one half of my property to X but X will enjoy this
upon the death of A. The death of A is a period because
everybody dies, although again it may not be known when.
If the testator says, I will give to A one half of my estate if X
will die by year 2017. Is that a period or condition? The
death of X is definite. But whether or not he will die by 2017
is not definite, it is uncertain. So it is a condition; it is not a
period.
As we have discussed, the period can be suspensive or
resolutory. When you say suspensive period, we have to wait
for the arrival of the period so that the institution can
become effective. If it is a resolutory period, upon the arrival
of the period the institution is ended. So effective
immediately upon the death of the testator, the institution
becomes effective. That is in a resolutory period. But it ends
upon the death of the testator.
But as we have also discussed let us go back to a:
Suspensive period Even if we say that in a suspensive
period the heir does not yet enjoy the property until
the arrival of the period, but it is only the enjoyment
that is being referred in the meantime, in the reality the
heir already acquired some rights to the inheritance. If for
example the period is 5 years after the death of the testator,
but 2 years pa lang after the death the heir instituted subject
to the period dies, will the heir get the inheritance? Yes.
Because there was already transmission, although it was just
suspended or deferred. What will happen is after 5 years,
because A is already dead, the heir is already dead, then his
own heirs can get the property.
Unlike in a:
Suspensive condition Where the condition really has to
happen before the rights of the heirs can become effective.
So if the condition will not happen, then the heir
instituted will never inherit. So that is the distinction
between a period and a condition.
The law also mentions a security. 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. What do we mean

by this? To which kind of institution will it apply? Will it apply
to a suspensive period or a resolutory period?
It will not apply to a suspensive period because again, if the
institution is subject to a suspensive period, prior to the
arrival of the period, the property shall be under
administration. When the period arrives, then it will go to the
instituted heir.
It applies to an institution subject to a resolutory
period. So immediately the heir will get the inheritance. But
upon the arrival of the term, and it is definite that the term
will arrive, he will have to return the property to the estate.
But what if the heir has already destroyed the property? Or it
has deteriorated through the fault of the heir? So that is the
reason why a security is required. It will answer for any
deterioartion or diminution in the value of the property due
to the fault of the heir.
Just like in an institution subject to a mode, there is a
requirement of giving security, or also an institution which is
subject to a negative potestative condition, it is also subject
to the giving of a security. These are some of the instances
where the heir is to give a security.
Now we go to legitimes. Legitime is very important ha. So
you cannot pass Succession without knowing legitime.
SECTION 5. Legitime
What is a legitime?
Art. 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)
This is the portion reserved by law for the compulsory heirs.
If we have the estate of the testatorjust imagine nalang a
pizzausually, mao na siya ang totality sa estate. Naay
portions dira na the testator cannot give to anybody else
except to the compulsory heirs. Like for example, he left
children, illegitimate children. The law provides what are the
legitimes of the compulsory heirs. So the legitimate children
are entitled to one half. 1/2 of the pizza or the estate (basin
pizza inyong ianswer sa bar) cannot be disposed of, cannot
be given to anybody else except to the children who are the
compulsory heirs. The other half, that is the free portion. The
testator has discretion to whom he shall give the free
portion.
There are certain compulsory heirs whose shares, even if you
call them legitimes, but they are taken from the free portion.
For example, the testator left legitimate children and a
spouse. So the legitimate children are entitled to of the
net hereditary estate. How about the spouse? The spouse is
also entitled to a legitime. If there are two or more legitimate
children, the spouse is entitled to a share equivalent to the
share of one legitimate child. So asa na to kwaon ang share
sa spouse? Didto sa free portion. So free portion is not
actualy really free, kay naa pa man makuha na share didto
sa surviving spouse, makuha pa didto ang share sa
illegitimate children. So after satisfying the share of the
surviving spouse, kadtong nabilin, mao na gyud to siya ang
tinuod na Free Portion. That is what we call the free disposal.
The legitime is provided for by law, and this is reserved to
the compulsory heirs. So it is important that you should know
who are the compulsory heirs.
Art. 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to
their legitimate parents and ascendants;
72
(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)
You have to revise Article 887 because there are certain
classes here of compulsory heirs who no longer exist
because of the Family Code. So to simplify who are the
compulsory heirs, we have the:
1.
legitimate children and descendants, with respect to

their legitimate parents and descendants
2.
in default of the foregoing, legitimate parents and

descendants
3.
widow or widower
4.
illegitimate children
So these are the compulsory heirs. We no longer have the

acknowledged natural children, natural children by legal
fiction, wala na ni sila. So four.
Lets go back to the first group: the legitimate children and
descendants. We call them primary compulsory heirs. They
are not excluded by any class of heir. As long as they
survive, they always inherit. The law says legitimate parents
and ascendants.
So for example this is the testator, and naa siyay anak na si
A, and si A pud naa anak na si B.
Testator
If the testator dies, who shall succeed from him? Should it be

A and B because the law says legitimate children and
descendants? No. We follow the rule on proximity. The
nearer relatives exclude those who are far.
So A is nearer to the testator, therefore A will exclude the
descendant.
Pero halimbawa si A predeceased the testator, then it will be
the descendant. Or if A repudiated the inheritance, and there

are no other children, si descendant gihapon. So the
descendant may inherit by representation or in his own right,
depending on the situation. Again we follow the rule on
proximity.
Adopted children, are they entitled to inherit? Yes they are
considered as legitimate children.
Number two: in default of legitimate children and
descendants, so halimbawa walay anak, walay apo, etc.,
then the parents, legitimate parents and ascendants. The
parents are what we call secondary compulsory heirs. Why?
Because they are excluded by the children and descendants.

They only inherit if there are no children and descendants.
Now if the survivors are the father of the testator and
grandfather of the testator, who will inherit? Again we follow
the rule on proximity. The nearer relatives exclude those who
are far.
Now widow or widower. Here, we are referring to the legal
spouse. The legal husband or the legal wife. Even if the
spouses had lived together as husband and wife for 50 years
but without the benefit of marriage, the widow or widower
will not inherit, will not be considered as a compulsory heir.
We are referring here to the legal spouse.
And illegitimate children.So illegitimate children are also
entitled to inherit. Before, they were not given successional
rights, but under the New Civil Code, clearly, they have
rights; they are entitled to inherit from their parent.
The widow or the widow and the illegitimate children concur
with the legitimate children. So they are concurring
compulsory heirs. They are not excluded by the presence of
other heirs. They concur with the children; they concur with
the parents; they concur with the spouse, with all of them.
Unlike sakadtong parents na they are excluded by the
presence of the legitimate children.
Going back, the second to the last paragraph of Article 887
says, In all cases of illegitimate children, their
filiation must be duly proved.
So if you are an illegitimate child, your right to inherit is
dependent on you having proved your illegitimate filiation.
Even if you successfully prove that you are really an
illegitimate child, it is not sufficient. There has to be a
recognition, either voluntary or involuntary.
Now you have under the Family Code the pieces of evidence
admissible to prove filiation: you have the primary evidence
and the secondary evidence. If you are an illegitimate child,
you can also prove your illegitimate filiation by the same
evidence for legitimate children.
Ilano vs. CA
Here the Supreme Court discussed the right of the
illegitimate child to inherit from the parent. The Supreme
Court clarified that even if the illegitimate children can
inherit, there must first be a recognition of paternity either
voluntarily or by court action.
This arises from the legal principle that an unrecognized
spurious child like a natural child has no rights from his
parents or to their estate because his rights spring not from
the filiation or blood relationship but from his
acknowledgment by the parent. In other words, the rights of
an illegitimate child arose not because he was the true or
real child of his parents but because under the law, he had
been recognized or acknowledged as such a child.
You have to prove that you were acknowledged beforehand,
before you can invoke your right to inherit from the testator.
Going back to the Family Code, what are the pieces of
evidence allowed to prove filiation? We have again the
primary evidence and the secondary evidence. Examples of
primary evidence: public record of birth, your birth
certificate, there is there a signature by your father
acknowledging that he is your father; or not in a birth
certificate, in a private document subscribed by the parent.
Wala siya sa birth certificate pero nay other document signed
by the father where he acknowledged that you are his
illegitimate child. Those are called primary evidence.
In the absence of those kinds of evidence, you can also
prove your illegitimate filiation by common reputation, you
discussed about that in your Evidence? Halimbawa, when
you were a child, you had enjoyed the reputation of being
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the illegitimate child of this man, or you had been recognized
by the relatives, etc.DNA evidencethat is secondary
evidence that can also be used to prove filiation. But, these
secondary evidence can only be invoked during the lifetime
of the putative parent. You cannot use them upon the death
of the putative parent.
Halimbawa namatay si testator, and here comes A, claiming
that he is an illegitimate child of the testator, therefore he

intervenes in the proceeding, whether probate or intestate,
he intervenes. If he has with him a primary evidence, like he
has with him a birth certificate where his father signed, then
he can prove his illegitimate filiation. But if wala, anolang, he
had been recognized lang by the relatives, even by the
father, ginapaadto siya sa balay, kadtong buhi pa, sige siya
adto sa birthday, mga pictures na gitauran siyag ribbon
tapos ang iyang papa tapad sa iyaha, sa iya ha pud baptism
naa siyay picture, would that be allowed? No, because those
pieces of evidence are what we call secondary evidence.
They are not allowed upon the death of the putative parent.
You cannot use them to prove your filiation, and because
you were not recognized during the lifetime, you do not have
primary evidence, then you cannot inherit, because you
cannot prove. You cannot inherit because you cannot prove
anymore your illegitimate filiation. You cannot compel
recognition because what you have are merely pieces of
secondary evidence which are not allowed. Even DNA
evidencepatay naman, so pwede siguro hair na lang. Dili
na siya upon the death of the putative parent, because again
that is considered as secondary evidence.
Now we go to the specific legitimes. We will first discuss the
specific legitimes of the compulsory heirs. We will skip 891
because this talks of reserve troncal. We will discuss this
after we have discussed all the legitimes of the compulsory
heir.
First we go to the specific legitime.
machikachika man na nimo gamay. Ang computation dili

machikachika. So tama gyud dapat imong answer.
Now we go to Article 889.
Art. 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)
The legitime of the legitimate parents or ascendants.
of the net hereditary estate. Take note ha, the legitimate
parents and ascendants, they inherit in the absence of the
legitimate children. They just take the place of the legitimate
children. Take note the same sila ug legitime. of the net
hereditary estate.
Art. 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)
Example:
This is the testator, his estate is P1,000,000. No children, so
his heirs will be his parents. He left a will, so testate
succession. The legitime of the parents will be . P500,000.
If both the mother and the father survive, they shall divide
the P500,000 in equal shares. P250,000 for the father,
P250,000 for the mother.
(250k) Father
Art. 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)
The legitime of the legitimate children and descendants
is . So if you only have one child and legitimate, that child
gets . If you have two, then the two of them will divide the
half. If the estate is 1 million, so you have two children,
legitimate, the legitime is P500,000. So they will divide the
P500,000 by two. Each will get P250,000. Kung tulo sila,
tungaon ni (P500,000) equally.
Basta divided by all of the legitimate children. The other
half, the law says, the free portion, subject to the legitime of
the surviving spouse and illegitimate children.
Estate: P1,000,000
Legitime: of P1,000,000 = P500,000
One legitimate child
Mother (250k)
Testator
For example the mother predeceased the testator, so died

ahead of the testator. Who shall inherit from the testator? Of
course the father. Who else? The grandparents on the
mothers side? No. Why, how about the right of
representation? No.
Remember, in Succession, the right of representation applies
only to the descending line. There is no right of
representation in the ascending line. We follow here the law
on gravity. Always down.
The testator died, survived by his father. The entire legitime
of P500,000 goes to the father. How about if the father also
died? The survivors are grandparents both on the fathers
side and the mothers side. They will divide the P500,000.
We divide it by line: maternal line, paternal line. To the
maternal line, P250,000; to the paternal line, P250,000.
Kinsamagtungadidtosagranparents? Both surviving, so
P250,000 divided by two, P125,000. So upatka P125,000.
(250k) Grandparents
Grandparents (250k)
A of P1,000,000 = P500,000
Two legitimate children
(deceased) Father
Mother (deceased)
A of P500,000 = P250,000
B of P500,000 = P250,000
Now you have to memorize the table of legitimes. You

cannot just recall. You have to memorize, because lahi baya
nang sa . Kay kung marecall niya, murag man to,
murag -- dili pwede na murag. It should be absolute kay
dira magdepend imong answer. Okay ra man nag essay kay
Testator
Now what if the grandmother in the paternal line also

predeceased? So the only survivors are the grandfather,
paternal line, and grandparents both, maternal line. How do
we divide? Do we divide by 3? We divide by line. Always by
line, maternal, paternal. So sa fathers side, P250,000, si
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grandfather lang magenjoy. Mothers side, P125,000,
P125,000. That is how we decide in so far as the ascending
line is concerned.
If youre asked, when will be that situation where the free

portion is 1/3? You can answer: If the survivors are the
spouse AND the illegitimate children.
We now proceed to Article 892.
Art. 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)
Art. 892. If only one legitimate child or descendant of the

deceased survives, the widow or widower shall be entitled to
one-fourth of the hereditary estate. In case of a legal
separation, the surviving spouse may inherit if it was the
deceased who had given cause for the same.
If there are two or more legitimate children or descendants,
the surviving spouse shall be entitled to a portion equal to
the legitime of each of the legitimate children or
descendants.
In both cases, the legitime of the surviving spouse shall be
taken from the portion that can be freely disposed of by the
testator. (834a)
The legitime of the surviving spouse who survives with
children or a child.
o
Just take note, if there is one legitimate child

who survives with the spouse, the child is
entitled to , the spouse is . The share is to
be taken from the free portion.
If there are two or more legitimate children,
the share of the spouse becomes equivalent
to the share of one legitimate child.
Again for example, the estate is P1,000,000 the testator left

only one child and only one spouse, the child gets P500,000
as legitime, the spouse gets P250,000 as legitime, .
If there are four legitimate children, so they shall divide the
P500,000 by 4. They shall inherit P125,000 each. The spouse
is also entitled to P125,000. Take note, the legitime of the
spouse varies. Primer okay P250,000, niya karon P125,000
na lang. So beneficial gyud nang gamay lang kaganak, kay
kung daghan, madilute imong legitime. The legitime of the
spouse is also what we call variable legitime, because its
amount varies. Also taken from the free portion.
Now the law says if there is legal separation, if here is a
decree of legal separation as you have learned in the Family
Code, the guilty spouse is disqualified to inherit by testate or
intestate succession from the innocent spouse. If it is the
testator who was the guilty spouse, so ang surviving spouse
makainherit gihapon. But if it is the testator who is the
innocent spouse, then the surviving spouse forfeits the
legitime, disqualified to inherit. That is, kung nay decree.
Kung pending lang ang case, walay pronouncement sa court,
qualified gihapon.
Illegitimate children are entitled to 1/4 of the estate

if they survive with only the legitimate parents or
ascendants of the deceased. If there are many illegitimate
children, they will divide the 1/4 share.
Remember: ILLEGITIMATE children do not exclude
LEGITIMATE PARENTS/ ASCENDANTS. Unlike LEGIT children.
Del Rosario vs. Cunanan
An adopted child has the status and enjoys the same rights
as legitimate children. What will be the successional rights of
legitimate parents when they concur with a legitimate child?
They are excluded. Here, the problem is we have an
illegitimate child. Supposedly under the law, the illegitimate
child has the same rights as the legitimate child. So if he has
the same rights as the legitimate child, he should exclude the
parents of the adopter.
Here the Supreme Court did not rule that the parents should
be excluded, because comparing with the adopted child, the
adopter and the parents are bound by the ties of blood,
whereas the adopter and the adopted are only bound by
fiction of law. The relationship was created by fiction of law.
Here, the adopted child was treated, and iyahang share lang
ha, was treated like the share of an illegitimate child. So wala
giexclude sa adopted child ang parents.
With the Family Code and the Domestic Adoption Act,
how do we apply this provision? Actually, if you examine the
Civil Code on adoption, and then the Family Code, and then
the Domestic Adoption Act, they all say that the adopted
child has the same rights as a legitimate child. But kaning
provision, theres no specific provision on excluding the
legitimate parents if an adopted child survives. And this case
of Del Rosario vs. Cunanan, this was decided in, March
30, 1977, under the Civil Code, there is actually no change sa
kadtong insofar as the rights of an adopted child are
concerned. Dili kayo siya klaro. So there are actually two
views on the matter.
The question is under the present laws, what if an adopted
child concurs with legitimate parents? How do we divide the
estate?
o
One view: you can still follow the ruling in the case
of Del Rosario vs. Cunanan. Under the rationale
that the ties that bind the testator or the decedent
and the parents, they are bound by blood. It would
be unfair to treat the adopted with more priority
who is only bound by legal fiction to the adopter.
And besides, we cannot say that under the
Domestic Adoption Act and the Family Code, that
they changed the application, because there is no
specific provision, even if you examine. And
authorities say that implied repeals are not favored.
So good law gihapon.
The other view. It is simpler just follow the

concept na if an adopted child has the same rights
as a legitimate child, and a legitimate child excludes
the parents, then the parents are excluded. So wala
pay bago na ruling aside from the case of Del
Rosario. Wala pay bago na ruling and then the laws
are not clear.

Art. 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.
So to the legitimate parents or ascendants, to
the surviving spouse.
Art. 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)
So here the survivors are the spouse and illegitimate
children. So 1/3 to the spouse, 1/3 to the illegitimate
children, and 1/3 the free portion.
If you have a case like this in the future, it will depend kung
kinsa imong client.
75
o
If your client is the adopted child, then you follow

the concept na ang adopted child has the same
rights as the legitimate child, and being a legitimate
child, he excludes the legitimate parents.
nalang ni kaadlaw, hala sige musugot nalang ko. Niya

namatay gyud. Naa siyay legitime tuon pero 1/3 lang.
But if you are the lawyer for the parents, then you
follow the case of Del Rosario vs. Cunanan. And
you cite that there is no specific provision in the
Family Code or in the Domestic Adoption Act saying
that the parents are excluded, and that implied
repeals are not favored.
point of death at the time of the marriage in Articulo Mortis.

Take note, 3 months from the celebration of marriage.
Kung sa bar exam, to be safe, duha nalang imong ianswer.

Because there is no specific and categorical declaration as to
this.
Art. 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)
Here, the survivors are the spouse and then the legitimate
parents and ascendants, and the illegitimate children. So
how do we divide the estate? 1/2 to the parents, 1/4 to
the illegitimate children, 1/8 to the spouse.
Pero kung kadtong nagtinga kay kadtong nakasurvive diay,

dili siya mag-apply. It should be the testator who was at the
Again so general rule, . Exception, 1/3.

Exception to the exception: Even if the marriage was
celebrated in Articulo Mortis, and the testator died 3 months
from the celebration of the marriage, but if prior to the
marriage they had been living together as husband
and wife for at least 5 years, then ang share sa
spouse.
Because here, the law sees that it is not really for money
that the spouse married the other, but because of love.
Because even before that they had been living together as
husband and wife.
Pero kung didto lang sila nagkita sa eroplano, nagpakasal, or

two months lang before basta 5 years, living as husband
and wife for 5 years. Diba exception napud na sa marriage
license. So .
Art. 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)
When you say to the illegitimate children, so if there are

three of them, they will divide equally the . Not the
each, but for the group to be divided equally among
them.
So halimbawa si illegitimate child inherited from the father,

and then (illustrations)
Take note here that the spouse gets only 1/8. So it seems
that the spouse is being penalized for not having children
with the testator. Some authorities would say that this is one
of the many UNHOLY PROVISIONS in the Civil Code. Here,
number one, because unfair sa spouse, kay tungod lang wala
siya nakaanak sa testator, gamay na iyahang share.
Testator namatay, survivor the illegitimate child, of course

the illegitimate child inherited. If he dies (illegitimate child),
he will also be succeeded by his children.
First scenario:
Now what if the illegitimate child died ahead of the testator?

Testator
Then we go to Article 900.

Art. 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 onethird 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)
Here, we have the spouse as the only survivor, the only
compulsory heir who survives. Take note of the legitime of
the spouse.
GR: The spouse is entitled to if he or she is the only
survivor.
Exception: But if the marriage between the spouse the
surviving spouse and the testatorwas celebrated in
Articulo Mortis (at the point of death) and the testator died
within 3 months from the celebration of the marriage, how
much is the legitime of the spouse? Reduced to? How much?
ONLY 1/3. Take note ha, at the time of marriage in Articulo
Mortis, it should be the testator who was in the point of
death. Kay kung halimbawa ang himalatyon diay didto kay
ang surviving spouse, we cannot apply this.
The reason for the reduction of the share of the spouse is to
prevent marriage by reason of money. Kay Hala sige
A (illegitimate)
(legitimate) X
Y (illegitimate)
So now, ang nabilin nalang si X ug si Y. Si X legitimate child

ni A, si Y illegitimate child ni A. Si A illegitimate. Namatay si A
ahead of the testator. And then namatay na pud si testator.
Can X represent A? Can Y represent A? Meaning sila na ang
mustep sa shoes ni A to get the share of A? Can they
represent A? Yes.
The law is very clear. He transmits his right to his
descendants, whether legitimate or illegitimate. We are
talking of testamentary succession. We will discuss another
similar concept in legal succession.
Lets go to 903.
Art. 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)
Remember, sa testamentary succession, always:
musugot nalang ko, mamatay na bitaw ka. Mga siguro pila

76
o
Legitimate parents surviving with legitimate

children, pila ang legitime sa parents? Zero.
If legitimate parents survive, ang iyaha. Didto
nalang ka mamroblema sa isa, kadtong iyahang

kapartner.
Legitimate parents surviving with illegitimate

children? Legit . Sa illegitimate children .
Legit parents surviving with spouse of deceased?

Parents , spouse gets . (same if ILLEGIT
parents + spouse)
If you notice, diba, ang surviving spouse, as I said, variable

legitime. And I said that you have to memorize the legitimes
of the compulsory heirs. So to better memorize the table of
legitimes, you start with the legitime of the surviving spouse.
Surviving spouse surviving alone, spouse surviving with
children, etc. So unahon ninyong memorize para mas dali
ninyo makuha.
Now with respect to the parents, the article talks not only of
legitimate parents but also of illegitimate parents. Kinsa man
ang illegitimate parents? Sila ang parents sa illegitimate
child. If you are an illegitimate child, your parent is your
illegitimate parent.
Now under this article, ILLEGITIMATE PARENTS surviving
with children, whether legitimate or illegitimate, how much?
Take note ha, if we are talking of illegitimate parents,
they are excluded by the presence of children,
whether legitimate or illegitimate children. So basta
illegitimate parents excluded by children. Mao na siya ang
under sa article 903.
Art. 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)
I think we discussed this also before. First is, the legitime is
reserved by law to the compulsory heirs. So even if the
testator did not mention about this in his will, it is implied
that he has to give or whatever to his compulsory heirs as
their legitime. And he cannot even expressly deprive his heirs
of their legitimes without a valid ground.
So for example, if the testator forgets about the legitime of
his compulsory heirs and disposes of all his properties to
other people, what will happen? There will be preterition. So
the institution of heirs shall be annulled. The estate shall be
given to the legal heirs, the compulsory heirs who are also
the legal heirs. So satisfied gihapon ang legitime.
Now if the testator expressly excluded a child or compulsory
heir from his estate but the ground is not valid, what will
happen? This is a case of invalid disinheritance. The law says
the legitime of the invalidly disinherited heir shall be
satisfied. In all cases. He can only deprive a compulsory heir
of his legitime for causes provided for by law. When we go to
disinheritance, we will discuss what are those grounds. So he
cannot deprive his compulsory heirs of their legitime, except
in cases specified by law. And he cannot impose any burden,
encumbrance, condition, or substitution of any kind
whatsoever.
Again this is to preserve the legitime. Because if he can
impose some substitution, burden, condition, and this will be
so difficult, the heir may not be able to comply, effectively
his legitime will be forfeited. So this cannot be allowed by
law. So you cannot impose any burden, encumbrance,
condition, or substitution on the legitime, except whenI
already discussed this beforethere are only two instances

when the legitime can be burdened:
1.
Reserva troncal
2.
Prohibit the partition of the legitime for a period

not exceeding 20 years even if that is the legitime
of the compulsory heir

Art. 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)
So Article 891 is the concept of reserve troncal.
Here, the principle is, if a property comes from another line
of the family, and for some reason that property strayed into
the other side of the family, eventually that property has to
go back to the line from which it originated from. Because it
is reserved to the line of the origin. This is the only
remaining reserva under the New Civil Code. The others have
already been abolished.
This was asked last year in the bar exam.
What is reserve troncal? First, para mas mavisualize ninyo
(illustration) just remember the V sign.
Origin
Reservor/ Reservista
Prepositus
In reserva, there is a property which comes from the origin.

And then the ascendant transferred this property by
gratuitous title to his descendant. And then the descendant
kept the property without issue, meaning wala siyay anak.
So who inherited? Another ascendant in another line. For
example, if this is the paternal, then this is the maternal. For
example, it was inherited by operation of law by the ancestor
or the ascendant in his other line.
Under the law on reserva, this ascendant who inherited, this
reservor, has to reserve the property. Dili na siya actually
malilaha gyud. Naa siyay burden Diba inheritance niya. Even
if it is his inheritance, it is burdened by the reserva. So unsa
man nang reserva? Unsa man nang burden sa reserva?
Meaning, if namatay siya, dili maadto s aiyahang estate kini
na property, kundi maadto sa relatives ni prepositus within
the third degree. Iuli na siya didto.
Again, first, there has to be a distinction of line. If the origin
is paternal line, this side should be maternal or vice versa.
Kay kung ang lolo nimo sa fathers side ang naghatag, and
then namatay, nainherit napud saiyahang papa, walay
reserve diha. Ngano man? Because wala may distinction of
line. Paternal lang tanan. There has to be a distinction.
Because again ang reason for the reserva is to prevent the
property from straying from one line of the family to the
other. So kung walay distinction sa line, walay nag-stray. In
the ultimate analysis walay reserva.
Again, these are the parties in the reserva. The origin. Who
is the origin? He might be an ascendant or a brother or
sister. But when it is a brother or sister, it has to be a halfbrother or a half-sister. Why? For example, this is the
grandfather, paternal. We have a brother on the fathers
side. Half-brother niya sa fathers side. Take note ha in
reserva, even if we are talking of half-brother or half-sister,
the relationship must be legitimate. Dili pwede na illegitimate
half-brother or half-sister. Dapat legitimate. So meaning,
naminyo sauna, nabyudo, tapos nagminyo na pud.

77
Origin
(Brother from PT)
Reservor/Reservista
(mother from MT)
Prepositus
Half-brother
So brother on the fathers side. Naghatag sa iyaha ug

property, sa iyahang brother, sa prepositus. And then he
died, and the property is inherited by his mother. So now
there is a distinction of line, because the property came from
the brother in the fathers side, and it went to the line of the
mother. It has to go back. Because if it is not a half-brother,
like a full-blood brother, his gave a property to the
prepositus, his brother, the prepositus died, the property is
inherited by his mother, walay distinction sa line because the
mother is also the same line as the origin. Anak man naniya,
so dili mag-apply dinha ang reserva. It has to be a halfbrother or a half-sister coming from the other side, or the
other line of the family. That is the origin.
Now the property is given to the descendant. So here, what
is the mode of transfer? It should be by gratuitous title. For
example si grandfather, paternal, donated a parcel of land to
his grandson, so that is gratuitous. Unsa pay other modes na
gratuitous? Succession. Tagaan niya iyang grandson ug
property by will, or by legal succession. That is gratuitous.
Chua vs. CFI
We look into the transfer from the origin himself, whether he
imposed any charge or condition. Here there was none. It
was the court who imposed that obligation. The transfer was
still gratuitous. Meaning, because it was gratuitous,
reservatroncal will be possible.
September 24, 2015 (GG)
So, last meeting we discussed Article 895. We have
discussed about Reserva Troncal. We already discussed that
the transfer in order to be covered under the concept of
Reserva Troncal, from the origin to the descendant
prepositus, should be gratuitous.
CHUA vs. CFI
To determine whether or not the transfer is gratuitous, we
only look at the point of view of the transferor. If the
transferor did not impose any charge or burden, then the
transfer is gratuitous. So it could be a donation, and it could
be by means of succession whether testate or intestate. So
now, the property has been transferred by origin to the
descendant prepositus. The same property should be kept by
the prepositus because if he sold the property, then there
could be no longer any opportunity for the reserva prosper,
because the property is no longer there. So the property
must remain with the prepositus.
If it is a parcel of land, for example, so the land should be
disposed of by the prepositus. Now, for example, the
GRANDFATHER donated a lotto ticket to his GRANDSON and
the lotto ticket won P50 million, and the money was kept by
the descendant. Is it possible that the reserva to happen in
that case for the property, assuming that all the other
requisites will be present? Take note the property which is
kept by the prepositus should be the very same property
given by the origin. So in my example, what was given was a
lotto ticket, what was kept was the money, the prize. So it is
not susceptible to reserva. So the same property must be
kept by the prepositus. That is why the prepositus is also
called the arbiter of the reserva because in his hands depend
whether or not the reserva could happen or there could be
reserva if he keeps the thing, then there is a possibility that
there could be reserva. If he destroys, then there would be
no reserva.
Now, from the prepositus, another requisite is that the very

same property received by the descendant prepositus should
be transferred by operation of law to another ascendant in
the other line. So, for example, the grandfather *** donated
a land to his grandson, the grandson kept the land, he did
not have any children, he died without issue or children, so
the property is now inherited by his mother. So another
ascendant in the other side of the family. So in that case,
there is now reserva troncal. The land which inherited by the
mother should be reserved by the mother, the reservor, in
favor of the relatives of the descendant who belong to the
third degree (3 degrees) from the land line of origin, from
the line where the property originally came from. So here, if
the property came from the paternal side, so the reservees
are the relatives of the prepositus in the father side within
the 3rd degree.
Now, as we mentioned that the transfer from the prepositus
to the reservors should be by operation of law. So when can
there be transfer by operation of law? (1) Legal succession, it
is clear that it is by operation of law. How about
testamentary succession? The son executed a last will and
testament giving to his mother the land, can it be considered
as transfer by operation of law? If there is a will, there can
still be transfer by operation of law. To what extent? To the
extent of the legitime of the reservor. If you just give by will
all his properties to his mother which included the land, so
that land could be part of the legitime. So here, if we are
talking of testamentary succession, the transfer by operation
law is limited only to the legitime. So, please remember,
even if the transfer is by will (not really by operation of law),
there could still be reserva only to the portion covered by the
legitime because that is the portion transferred by operation
of law. Remember that.
Now, as I said upon the death of the prepositus and the
property was inherited by the reservor, the property is now
burdened by the reserva. So again, as we said, even if that
property is the legitime of the mother, that is burdened by
the reserva. As we have discussed before, there are only two
burdens that can be imposed by law to the legitime, one is
the concept of Reserva Troncal.
Here, what is that burden? If you receive something as your
legitime, supposedly, it shall be given to you freely. There
are no conditions. Now, the mother, she inherited that
property which is subject to reserva, what is the nature of
her inheritance or ownership? Is she an owner? YES! She is
the owner but upon her death, when she dies, if there are
reservees or relatives of the prepositus within the 3rd degree
coming from the line of origin, that property inherited by the
mother need not form part of her estate. It will go to the
reservees.
So, the ownsership of the reservor is called an ownership
that is subject to resolutory condition. She is the owner but if
the condition is fulfilled, then her ownership is ended and the
property is given to the reservees.
What is the resolutory condition? The survival of the
reservees upon the death of the reservor. So she is the
owner, subject to a resolutory condition.
Once the reservor inherited the property subject to the
reserva, what is the right of the reservees? Can they
question any alienation or disposition made by the reservor?
How can they protect their rights over the property subject
of the reserva? If for example, there is a parcel of land and it
is registered under the Torrens System, you have in your
Land Registration Law, the procedure by which the reservees
may annotate the fact of the reserva in the title, so whoever
deals with the property may be aware that this property is
subject to reserva. The registered owner here is the owner
but her ownership may end if upon her death, there are
reservees who survived. So that is the reason for the
annotation, if it is not annotated, then anyone who deals
78
with property are not charged with the knowledge of the
those non-existing burdens, liens, or charges. So he becomes
an innocent purchaser for value. So what is the remedy of
the reservees if they failed to annotate, they cannot recover
the land to the innocent purchasers for value. They may go
against the estate of the reservor for the indemnity or
against the Land Registration Fund. So that is if the property
is registered. If not, they can require a security or bond. That
is to protect them in case of deterioration, or loss of the
property, they can require the reservor to put up a bond or a
security. That is to protect their rights.
Now, the reservor, for example, the mother in that case, can
she sell the properties during her lifetime? How about the
reservees, can they also deal with the property during the
lifetime of the reservor aside from their right to annotate the
fact of the reserva or to demand a security?
SIENES vs. ESPARCIA
The reservor in this case is Andrea. The reservee was
Cipriana.
Could Andrea, the reservor, validly sell the property subject
of the reserva? YES, the nature of the sale is a conditional
sale. Such sale is valid but it is subject to a resolutory
condition that when she dies and there are reservees who
survived, the sale be cancelled or extinguished because the
property will be transferred to the reservee. But if upon her
death there are no reservees who survived, if he did not sell
the property, it will form part of her estate. If he sold it, we
do not disturb that sale because the resolutory condition did
not happen. Resolutory is valid until the happening of the
condition.
How about reserve Cipriana? Could she sell the property
subject of the reserva during the lifetime of Andrea? YES, the
nature of the sale is a conditional sale subject to a
suspensive condition. What is that suspensive condition? She
could also sell the property during the lifetime of the reservor
but the sale is subject to a suspensive condition, it will not
take effect until after the fulfillment of the condition. What is
that condition? The death of the reservor and the survival of
the reservee.
Take note that what is resolutory on the part of the reservor
is suspensive on the part of the reservee.
Is it not a sale of future inheritance? What is the
justification? That is not future inheritance, remember that
the reservees does not inherit from the reservor. But from
the prepositus. That is what we called deferred inheritance.
They already inherited but it is deferred in the meantime
because it is first inherited by the reservor. That is now what
we call a SALE OF FUTURE PROPERTY. In Law on Sales, it is
emptio rae speratae (sale of future property) as
distinguished from emptio spei (sale of hope or expectancy).
Now, we go to the reservees. As we have discussed, the
reservees are the relatives of the prepositus within the third
degree coming from the line of origin. So who are these
relatives within the third degree? So you know that in your
persons. Who are the relatives in the first degree? We have
the parents, the mother and father. Prepositus does not have
a child because if he has a child, there will be no reserva. In
the direct line, in the 2nd degree, we have the grandparents.
In the 3rd degree, great grandparents. In collateral
relationship, prepositus, parents, uncles and aunts, and
brothers and sisters. 3rd degrees, uncles and aunts, nephews
and nieces. 1st degree, again, parents. 2nd degrees, brothers
and sisters.
If these relatives survive, again only those coming from the
line of origin, if the origin is the father, we only consider the
relatives in the father side, if all of these survive, will they
get all the property? Will they just divide? NO. Reserva
Troncal only determines the class of relatives to whom the

property will be given after the death of the reservor but
between and among themselves we follow the rule on legal
or intestate succession.
RULES IN LEGAL OR
INTESTATE SUCCESSION
1st Rule PROXIMITY RULE.
The nearer relatives exclude those who are far.
2nd Rule THOSE WHO ARE IN THE DIRECT LINE ARE
FAVORED THAN THOSE WHO ARE IN THE
COLLATERAL LINE.
Example they are of the same degree. Like we have brothers
and sisters, 2nd degree we have grandparents, diba, 2
degrees pud.
3rd Rule THOSE WHO ARE IN THE DESCENDING LINE
ARE FAVORED OVER THOSE WHO ARE IN THE
ASCENDING LINE.
For example, they are in the same degree; they are in the
same collateral line, to whom shall we give? Like, to uncles
and aunts concurring with the nephews and nieces.
Between uncles and aunts, nephews and nieces, they are
two degrees away from the prepositus, they are both in the
collateral line, but the nieces belong to the descending line.
So, they are favored over the uncles and aunts. So thats
how we distribute the property.
Line of Origin
DIRECT
1st degree
COLLATERAL
Parents
2nd
Grandparents
Siblings
3rd
Great grandparents
Uncle/ aunts &

Nephews/ nieces
Take note that the relationship of all these parties involve in

reserva should be legitimate, it cannot be illegitimate. If the
origin is illegitimate, there will be no reserva. If those who
are in the reservees side are illegitimate, the reservor or the
ascendant has no obligation to reserve for them because
they are not legitimate relatives.
Now, what is the concept of DELAYED INTESTACY
THEORY? Actually, we are just referring to the inheritance
of the reservees.
Why is it called delayed intestacy? Because the reservees are
supposed to inherit from the prepositus but because there is
still a relative of the prepositus who inherits from him, in the
mean time, the reservees cannot yet enter into the
inheritance. However, once the reservor dies, and they
survive, and then that is the time they enter into the
property. That is called delay because their inheritance is
delayed and it is intestacy because the succession by the
reservees to the prepositus is by legal or intestate
succession. That is why we apply the rules on legal or
So now lets go to the computation . How do we compute
the value of the reserva?
Maam was INTERRUPTED by LEGAL LUMINARY VON LAO.
Von: Question Maam, until when can you claim for reserva?
Maam: Actually, there is no specific prescriptive period for
reserva so we follow the general rule on prescription. I have
not seen any in the New Civil Code on how long can you
claim for the inheritance. General rule, 5 years, Im not sure.
If there is no specific period in the New Civil Code, we follow
the general prescriptive period to claim for the inheritance.
79
(But I think Maam answered more categorically the next
meeting).
So, now we go to the computation. Did I already mention the
2 theories? The theory of Reserva Maxima and Reserva
Minima.
First, if the transfer from the prepositus to the reservor is by
legal succession then we have no problem.
For example:
The value of the land inherited by theprepositus, so the
origin came from property by will to the prepositus. It is the
grandfather and the grandson. The value of the land is for
example, P1 Million. Then the prepositus died intestate
without issue, so the entire land is inherited by the mother
by legal succession. So how much is the value of the
reserva? How much of the land should be reserved by the
mother? The entire P1 Million because that is the one subject
of reserva, that is the property coming from the origin going
to the prepositus then going to the reservor by operation of
law. So, the entire P1 Million. No problem if he died intestate.
What if he died with a will, he has a last will and testament?
Diba, if there is a will, the extent of the reserva will be only
up to the legitime. Thats only what can the reserva cover.
So, we have the 2 theories.
TWO THEORIES:
1.
2.
Reserva Maxima Under this theory, as much as

can be covered by the legitime. So, P1 Million ang
value of the property and there is a will. How much
is the legitime of the mother? One-half (), then
P500, 000. Under the theory of Reserva Maxima,
P500, 000 ang covered sa legitime.
Reserva Minima In this theory, we always
presume that from this property one half is the
legitime one half is the free portion. Under this
situation, the value of the reserva is the same,
whether Reserva Minima and Reserva Maxima.Also,
P500, 000.
By the way, with respect to the question earlier [By legal

luminary Von Lao], is it for recovery or delivery? I think it will
fall more appropriately on the rule on recovery of the
property. When the reservor dies and his estate does not yet
deliver the land to the reservees, so they are now claiming
for the delivery of the property, the rule on prescriptive
period for recovery of property will apply here. Dili diay siya
general rule because there is a specific provision na mag
apply.
So, now computation. We discussed reserva minima. Now,
since on the example earlier, they are just the same amount,
P500, 000, whether minima or maxima. For example, during
his lifetime aside from the property acquired from the origin,
the prepositus also acquired properties of his own. Assuming,
that he was able to obtain P500, 000 worth of properties,
and upon his death, by virtue of his last will and testament,
he gave all his properties to his mother. So the value of his
estate is P1.5 Million. Now, under the theory of Reserva
Maxima, as much as can be covered in the legitime. So, the
legitime is P1.5 million divided by 2, because the survivor or
heir is the mother, P750, 000, that is the legitime. The free
portion is also P750, 000. So, now, how much is the value of
the reserva under the theory of reserva maxima in this kind
of situation? Again, it is as much as the legitime. How much
is the property which came from the origin? How much is the
value? P1 Million. The P500, 000, napalit to niya. So, ang
reservable is only the P1 Million. Since as much as can be
covered in the legitime, So how much is the legitime? P750,
000. So, what is the value of the reserva? Is it P1 Million?
NO, because as much as can be covered by the legitime,
meaning it cannot exceed the legitime. Even if you received
1 million from the origin, but the legitime, the portion which
is transferred by operation of law is only P750, 000, so under
this theory, the value of the reserva is P750, 000.
How about in reserva minima? Under the theory of reserva
minima, the property consists of one-half legitime one-half
free portion. So what are the properties involved in the
example? P1 Million and P500, 000. One-half of that is
legitime, so P500, 000, one-half of that is legitime and onehalf of that is free portion. The same goes with 1 million. So
that is why the legitime is 750, 000 and the free portion is
P750, 000. So the legitime which is P750, 000 is composed
of P500, 000 from this (1M) property and P250, 000 from
this (P500K) property. So, how much is the value of the
reserva under the theory of reserva minima? Do not include
the property not coming from the origin. So, it is only P500,
000, because only one half of this (1M property, which came
from the origin) is the legitime and therefore, subject to the
reserva.
How about if during his lifetime the descendant acquired
properties worth P2 million? So his estate is? P3 Million. Upon
his death, the legitime is one-half, P1.5 Million. Lets go back
to the theory of reserva maxima. Under this situation, how
much is the reserva? The legitime is P1.5 Million, the reserva
is? It cannot be P1.5 million because you only received P1
million from the origin. So even if you say as much as can be
covered in the legitime, but you cannot stretch the P1 million
received from the origin. So it is only P1 million, the value of
the reserva.
In reserva minima, P1 million is the legitime, P1 million is the
free portion, that is why you have the same value. The
question is, how much of that is reserva? Because reserva is
limited only to the legitime, so, this is the reservable portion
of P1 million (the P500k).
Now, which theory shall be followed? Reserva maxima or
minima? Some authorities would say reserva maxima
because it is more in keeping with the concept of reserva.
Okay, as much as can be reserved of the property coming
from the origin. But, the more prevailing theory is the
reserva minima, because it is more equitable. So reserva
minima is the prevailing rule.
HOW IS RESERVA TRONCAL EXTINGUISHED
1.
Upon the death of the reservoir

No more obligation to reserve, because he/she is already
dead.
2.
Upon the death of all the would be reservees

ahead of the reservor
Because in this case, there is no more obligation to
deliver the property to the reservees.
3.
Upon the loss of the reservable property without

the fault of the reservor
We apply here the concept of force majeure, the
obligation is extinguished if the thing is lost without the
fault of the debtor or the obligor.
4.
Upon prescription
When can there be prescription? For example, the
reservor repudiates the reserva, and makes known the
repudiation to the reservees, either adverse possession
by the reservor or by a third person. So they are holding
the property now free from reserva. So, if it is in bad
faith, we apply the extraordinary acquisitive prescription
under the rule on prescription. We have 30 years, if real
property. If personal property, 8 years.
5.
Upon registration under Torrens System as free

from the reserva
80
6.
As I said, if the reserva is not annotated in the title, the

persons dealing with the property have no obligation to
go beyond the title. They are considered as innocent
purchasers for value unless they have knowledge. Here,
the reservees can no longer recover from those third
parties the property. They have to go against the
reservor, his estate, or the Lad Registration Fund.
As long as your parents are still alive, your right to the

properties are still inchoate or expectancy. You cannot waive
or renounce something which is still an expectancy. That is
why every renunciation or compromise as regards a future
legitime is void. You can renounce upon the death of the
decedent. By that time, your right is already a vested one.
No longer an expectancy.
Upon renunciation or waiver by all the reservees

after the death of the reserver
Example:
MENDOZA vs. DELOS SANTOS

First, we have parents of Ezekiel, spouses Mendoza. They
have 4 children and one of them is Ezekiel. He is married to
Leonor. They have a child named Greogria. Ezekiel died
causing properties to pass upon Gregoria. The sons and
daughters of Ezekiels brothers claim that properties are
reservable and could not have passed to Julia who is
Greogriasaunt from the mother side.
If we are to consider a reserva, we cannot start here (?)
because reserva involves property coming from the origin
and then to the descendant and to other ascendant. It did
not happen here. If reserva would be possible, it could start
here, so Ezekiel.
The mode of transfer to Gregoria is grauituous succession.
Gregoria dies without issue. Leonor died ahead of Gregoria.
But the property from her was transferred to Julia, the sister
of Leonor. The subject of the property is being claimed as
part of the reserva by the sons and daughters of brothers of
Ezekiel (Ezekiels nephews and nieces).
In this case, there is no reserva. We first go to the requisites
of reserva. What requisite is missing? The fact that there is
no transmission from the paternal line to the maternal line.
Diba in reserva, from the origin transferred by operation of
law to the descendant, check. The descendant died without
issue, check. The descendant transferred property by
operation of law to another ascendant.
Is Julia the ascendant contemplated under Reserva Troncal?
NO. She is Gregorias collateral relative. When you say an
ascendant, she is in the direct line of ***.
Here the requisite that the property should be transferred by
operation of law to the ascendant was not satisfied because
Julia is not the ascendant contemplated by the reserva
troncal. She is not the mother, she is the aunt, a collateral
relative.
Another reason why petitioners could not claim the property?
They are 4 degrees relative counted from Gregoria and
therefore, they cannot be reservees. Even assuming for the
sake of argument, that there is reserva, they could still not
claim because the reservees are supposed to be relatives
within the third degree. In the collateral line, the right of
representation is only up to nephews and nieces. But in
reserva, there could be right of representation but the
representatives themselves must also be within the
3rddegreee. So, they cannot claim the property being 4 th
degree relatives.
So, we are done with Reserva Troncal.
Art. 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)
Example:
You have several properties and then you agree with your
sisters or brothers, just give me P100, 000 now, I will no
longer claim my inheritance. So, you already signed an
agreement or waiver to that effect. You were given P100,
000. When your parents died, the value of their estate, for
example, P10 million. Then you are only 4 siblings. Then the
legitime of the P10 million is P5 million. So, the 4 children will
share with the P5 million. So, P1.25 million each. But you
only had P100, 000. Can you still claim? Can you not be
bound by your prior renunciation especially it is coupled with
a consideration of P100k? NO! Because that is an agreement
regarding a future inheritance, a future legitime. That is void.
So what will happen to the P100, 000? That will be
considered as advance to your legitime. So, if you are
entitled to 1.25 million as your legitime, what you will receive
upon the death of your parents is 1.25 million less 100k.
Okay, that is the meaning of Article 905.
But of course, if the compromise happened after the death,
that is already valid agreement. It cannot be revoked. Dili na
xa mabawi. So, the P100 thousand, that is the meaning of
they must bring to collation whatever they may have
received by virtue of the renunciation or compromise. You
should still account it as part of your legitime.
Art. 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)
Here, the share received by the heir is less than his legitime.
So what is the right of the heir? He may demand that his
legitime be completed. So, completion of the legitime. This
article presupposes that something was given to the
compulsory heir but it is less than his legitime because if
none at all was given to the compulsory heir, and there is a
will, he is not mentioned. We apply the rule on
PRETERITION, not completion of legitime.
Art. 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)
For example, the testator have 2 children, his estate is P1
million and then, in his will, he devised or bequeath cash to
his neighbor, P700k. The estate is P1 million, the legitime is
half of the so P500k. So that legacy to the neighbor is
inofficious because it exceeds the free portion and it impairs
the legitime of the compulsory heirs. So, here, the law says
that it may be reduced on petition of the compulsory heirs
but only to the extent that they are inofficious. The P700k
legacy may be reduced by P200k.
Take note also that the law says, upon petition of the same.
We are referring here to the compulsory heirs. A petition to
reduce a testamentary disposition (legacy, devise or
donation), for example testator donated a property valued at
P700k to X. At the time of his death, he only left P300k. In
the computation of his estate, under the rules on collation,
that P700 shall be brought back to the estate. So 300k +
700k, 1 million. That is the basis of the computation of the
legitime. P1 million divided by 2, 500k. But what was left is
P300k. The compulsory heirs action is to get a portion from
the donation because the donation is inofficious, it impairs
81
the legitime. In that kind of petition, that can only be
brought by the compulsory heirs. Without compulsory heirs,
it will not be collated. It will not be added back to the estate.
Art. 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)
Assuming that the value of the estate, forget about what was
stated above, is P620k. During his lifetime again to his son,
200k.And to his friend, 400k.
This article gives us the procedure of the computation of the

NET HEREDITARY ESTATE. So, again, value of the property
left at the time of death less all his debts and charges. Debts
like from his creditors, taxes, funeral expenses, and etcetera.
Those charges, which shall not include those imposed in the
will, meaning, he gave a legacy or devise, it has nothing to
do with your *** because they are part of the estate. They
are to be deducted from the estate during the distribution. In
the mean time, you are still computing the net hereditary
estate.
As I mentioned, all donations made by the testator or

decedent during his lifetime, the value of those donations
shall be added back to the estate to arrive at the net
hereditary estate.
Assuming at the time of his death, he left properties

amounting to P500k. He has debts amounting to P100k.
Taxes amounting to P50k. During his lifetime, he made a
donation to his son, A, amounting to P200k. He also donated
to B, P70K. So, how do we compute the net hereditary
estate?
P500, 000
LESS
P100, 000
P50, 000
--------------------------P 350, 000
- Value at the time of death

- Debts
- Taxes
- Net Estate
Next is, we add back the donations.

P200, 000 Donation to A
P70, 000 Donation to B
---------------------------P 620, 000 - NET HEREDITARY ESTATE
So, this is the basis for the computation of the legitime. So if

he left 1 child, P620k divided by 2, then that is P310k. That
is his legitime. If the disposition is silent, the P200k shall be
collated. It shall be considered as an advance to his legitime.
We will discuss that later when we go to collation. Here, we
add the donations because if you dont, it would be very easy
for the decedent to circumvent the law on legitimes. The law
on collation exists to preserve and protect the legitimes.
Art. 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)
So, let us go back.
o
P620k divided by 2, that is P310 thousand. That is

the legitime of the child. But his donation to A of
P200k shall be collated, it shall be considered as an
advance to his legitime. So, upon actual distribution,
he will be given only P110k to complete his legitime.
Now, the donation made to strangers, shall be

charged to the free portion. So, the free portion is
also P310k. Out of the P310, we charge this P70K.
What remains now is P240k as free portion.
For example, in his will, he has a legacy to X worth
P250k, what will happen to that legacy since what
remained is P240k as the free portion? In that case,
the P250k cannot be given only P240k. X will only
receive P240k.
Out of the P620K, the legitime is P310k, and the

free portion is also P310k. So, as we said, the
donation to A shall be charged to his legitime.
The donation to B shall be charged to the free
portion. Now, the free portion is only P310k. We
charge this to the free portion. It cannot be
covered. This donation is inofficious. This exceeds
the free portion and it impairs the legitime of the
compulsory heirs. Here, the donation can be
reduced on the ground of being inofficious.
Now, donee B shall return to the estate which
impairs the legitime of the compulsory heirs. Return
to the estate or to the compulsory heir the P90,
000. This is the meaning of the third paragraph.
Art. 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)
Donations to the illegitimate children are considered as
advances to their legitimes and therefore, in the actual
distribution, those donation should be collated. If the
donations are inofficious, they shall be reduced.
Art. 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)
We will follow this article if the testator, during his lifetime,
made several donations and then in his will, he also provided
for some legacies and devises.
Assuming at the time of his death, the testator left properties
worth P500k. During his lifetime, he made a donation in
1990 amounting in P100K. In the year 2000, P200K. In his
will, he also gave legacies: (1) P300K (2) P100K (3) P50K.
How do we compute the Net Hereditary Estate? He has no
debts and liabilities.
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P 500, 000
Estate
Add the donations
P 100, 000
Year 1990
P200, 000
Year 2000
---------------------------P800, 000
- NET HEREDITARY ESTATE
So he left children, the legitime is P400K and the free portion

is P400K.
To the free portion, we charge the donations. The legacies
will be covered by the free portion. Between donation and
legacies, which shall be preferred? The donations are
preferred because the donations are already made long
before. The legacies are still to be given. So, in that sense,
the decedent really give priority to the donations. Respected
ang donations more than legacies.
In case of two or more donations, which shall be preferred?
The donations which are made earlier. Again, first in time,
first in right. Masdugay maskusog! (LOL).
The free portion is P400K. The amount of donation is P300K.
So, it can still be covered. We still have P100K. This will be
distributed to the legacies and devises. Now, in legatees and
devisees, if there was a declaration as to who is preferred, so
that is preferred. If the testator said, legacy 1 (P300K), then
what shall be given is the P100K only.
If there is no mention as to preference, then it shall be
satisfied pro rata. How do we prorate?
P 450, 000 - Total amount of all the legacies
P 100, 000 - Remainder of Free portion
1st legacy
P300, 000
----------------------- X 100, 000 = P66, 666. 66
P450, 000
2nd legacy
P100, 000
---------------------- X 100, 000 = P22, 222. 22
P450, 000
3rd legacy
P50, 000
--------------------- X 100, 000 = P11, 111. 11
P450, 000
house will be given to A but he has to pay in cash the

300,000 to the compulsory heirs.
If, for example, the free portion is only 300,000 and the
devise is one million, what is the rule? The reduction is in the
reverse. In such case, the reduction is more than one-half. It
has to be reduced by 700,000. The house will go to the heirs
and they will just pay the devisee the 300,000. That is the
rule under article 912.
What if the reduction is exactly one-half of the value of the
property? The house is valued at one million and the devise
is 500,000. What is the rule? The property will be given to
the devisee but he has to give 500,000 to the heirs.
Art. 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)
The right is not only limited to the heir whose inheritance or
legitime has been prejudiced or to the devisee but to any
heir or devisee. They can exercise the right [provided in
article 912] or the property may be sold at public auction at
the instance of any one of the interested parties.
Art. 914. The testator may devise and bequeath the free
portion as he may deem fit. (n)
We already discussed about the freedom of the testator to
dispose the free portion. Remember that the free portion will
still answer for the legitime of the surviving spouse and the
illegitimate children. The free portion is that which the
testator has freedom of disposition but, again, this freedom
is not unlimited. He can dispose of the free portion but the
recipient must be qualified to receive.
SECTION 6. Disinheritance
That is how we distribute under Art. 911.

Sept 28, 2014 (FJB)
Art. 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 one-half 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)
We learned before that a devise can only be accommodated
in the free portion. If the devise exceeds the free portion, it
has to be reduced. What if the devise consists of a property
which cannot be conveniently divided? For example, a house
was devised to A. The value of the house is one million but
the value of the free portion is only 700,000? The devise has
to be reduced by 300,000. But considering that the property
is a house, how can it be reduced? Should we take off the
ceiling or the floors and give them to the compulsory heirs?
That is not practical and convenient.
Take note of the rule under article 912, if the reduction does
not absorb one-half of its value, the property shall go to the
devisee. In the above example, the house is valued at one
million but the devise is only 700,000. Still, the devise is
more than one-half of the value of the property, so the
Art. 915. A compulsory heir may, in consequence of

disinheritance, be deprived of his legitime, for causes
expressly stated by law. (848a)
This is the process by which a compulsory heir may be
deprived of his legitime but only for causes expressly stated
by law. We have already discussed the concept and
importance of legitimes. The law, as we can see, really
protects the legitimes of the compulsory heirs.
We discussed before the possible ways when the testator
may attempt to reduce the legitimes and the remedies or
protections provided for by law to the compulsory heirs. For
example, if the testator just forget about his compulsory
heirs by not mentioning them in his will and then dispose of
his properties in favor of the persons stated therein, that is
preterition.
We also discussed a situation when the testator donated all
his properties during his lifetime so that nothing will be left
for his compulsory heirs. That is what we call collation.
What if the heir will be deprived by the testator in his will?
We have the law on disinheritance which limits that right. He
can only disinherit a compulsory heir for causes provided for
by law. If the cause for disinheritance is not among those
provided for by law, then the disinheritance will be invalid, so
the heir is entitled still to his legitime.
83
The law says a compulsory heir. This is because there is no
need to disinherit a legal heir. You can just omit them in the
will.
For example, your brothers and sisters. You can give to them
but you are not obliged to give to them. You can just give
your properties to your neighbor and not to your siblings
[provided you have no compulsory heirs]. There is no
problem. But if it is a compulsory heir and you do not want
to give to that compulsory heir anything, there has to be a
valid disinheritance.
Art. 916. Disinheritance can be effected only through a will
wherein the legal cause therefor shall be specified. (849)
Remember, disinheritance can only be effected through a
will. When you disinherit, you do it in a will. The will has to
be valid for the disinheritance to be effective. If you make a
will where you disinherit a compulsory heir but the will
turned out to be void extrinsically, the will is not valid and
therefore the disinheritance cannot be effected. For example,
there is a notarial will embodying a disinheritance but there
is only one witness or it lacks the required marginal
signatures. In that case, the will is not valid, so the
disinheritance cannot be effected.
REQUISITES FOR VALID DISINHERITANCE

1.
It must be made in a valid will;

[It can be made] whether in a notarial or a holographic
will or even in a codicil because a codicil also has to
comply with the formalities of a will.
2.
The disinheritance must be made expressly;

Meaning, you really make it clear that you are
disinheriting A, for example. If you just omit A in the
will, that is not disinheritance. That could be preterition
if he is omitted entirely in the will.
3.
The disinheritance must be for a cause stated in

the civil code or expressly provided for by law;
We have under the new civil code the grounds to
disinherit a child or descendant, grounds to disinherit a
spouse, and grounds to disinherit parents or
descendants. The grounds given are exclusive. You
cannot have other grounds not mentioned in the law.
4.
The disinheritance must be also for a true cause

as discussed under article 917.
Let us go first to article 917.
Art. 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)
If the testator says that he is disinheriting A because she
is living a dishonorable and disgraceful life as a
prostitute, does it follow that she is already disinherited
on that ground? No, it is not automatic that the child is
disinherited. Of course, if she admits it, then there is no
problem, but if she denies it, the burden is on the
opponent to prove the truth. So, the disinheritance must
be for a true cause.
5.
The disinheritance must be for an existing cause;

You cannot say that you will disinherit your child, A, if
she becomes a prostitute. That is not yet present now.
Even if she becomes a prostitute in the future, the
disinheritance will not be valid. It has to be for an
existing cause. In the given example, A must have to be
a prostitute now for the disinheritance to be valid.
6.
The disinheritance must be total or complete;

You cannot say that you will disinherit A of the free
portion or one-half of her legitime. It must be total
because you cannot divide the offense committed which
is a ground for disinheritance.
7.
The cause must be stated in the will;

Even if she is really living a dishonorable and disgraceful
life but you failed to mention this as a ground for
disinheritance in the will, it is not valid. It has to be
stated so that the heir disinherited can also defend
herself should she deny the truth of the cause.
8.
The heir disinherited must also be identified; and
9.
In relation to number 1 (it must be made in a valid will),

the will must not have been revoked.
Even if the will is valid but is already revoked, then the
disinheritance mentioned in the revoked will is likewise
ineffective.
Art. 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)
The disinheritance mentioned in article 918 is not valid. We
already discussed the requisites for a valid disinheritance. If
the disinheritance is not valid like the one mentioned in
article 918, then the disinheritance is invalid. What is the
consequence? The law says it 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. If
you still remember article 854 on preterition, they are just
the same. If there is preterition, the institution of heirs shall
be annulled but the devises and legacies shall be valid
insofar as they are not inofficious.
What is the difference between the consequence of
preterition and the consequence of aninvalid disinheritance?
Let us go back first to preterition. (Maam illustrates on
board) A, B, and C are the children of the testator, and D is
the friend. In his will, C is preterited. The testator only
instituted A, B, and D. His estate is 1.2 million. What is the
consequence of Cs preterition? The institution of heirs shall
be annulled and the estate shall be distributed by legal
succession but the devises and legacies that are not
inofficious shall be respected.
There is no devise or legacy in this example. D here is
instituted as an heir. He is a voluntary heir. By reason of
preterition, the institution of heirs shall be annulled and so
the property shall be distributed by legal succession. D is not
a legal heir. Therefore, D will not receive anything. The
estate will be distributed only among A, B, and C. That is in
preterition.
In disinheritance, if C is disinherited because the testator
does not like his face. It that valid? No, it is not valid.
Otherwise, many will be disinherited. The estate is 1.2
million. C is invalidly disinherited. How do we distribute the
estate? The law says it 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.
So, we look if the testamentary dispositions are inofficious.
First, we give the legitime of the heir who was invalidly
disinherited along with the other heirs. 1.2. million divided by
two equals 600,000. There are three compulsory heirs (A, B,
84
and C), so each will get 200,000 as legitime. To whom shall
we distribute the free portion? Is C and D entitled to the free
portion? Now that we have satisfied the legitimes, we can
now give effect to other testamentary dispositions such as
legacies and devises, if any. Here, we give the free portion
only to A, B, and D. C is not included because he has not
been instituted. D can still receive because his institution is
not annulled. It is not inofficious.
Take note that in preterition, the institution of heirs shall be
annulled. Only the legacies and devises that are not
inofficious shall be respected. In invalid disinheritance, the
institution of heirs, as long as the legitime of the compulsory
heir invalidly disinherited are not prejudiced, will now be
given effect. That is the difference between the consequence
of preterition and the consequence of aninvalid
disinheritance
Let us go to the grounds.
Art. 919. The following shall be sufficient causes for the
disinheritance
of
children
and
descendants,
legitimate as well as illegitimate: x x x
You should know the grounds under article 919. I do not
expect you to memorize them but at least be familiar with
them. Anyway, most of the grounds to disinherit a child are
also the same grounds to disinherit a spouse, and parents or
ascendants.
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;
The law mentions found guilty. We need here a final

judgment or conviction because if the case is still on appeal,
there is still a chance that it will be reversed. We really have
to be sure that there is really conviction. He must be really
guilty, so there must be conviction by final judgment.
The law also says attempt. Note that we have stages of
execution.
We
have
attempted,
frustrated,
and
consummated. For example, if the offense was merely
frustrated, is that already considered as a valid ground? We
do not have to be really literal. It covers frustrated and
consummated stages. Take note that the law only
contemplates a crime which has an intent to kill. Thus,
reckless imprudence is not covered. There must really be an
intent to kill.
We also have the degree of participation. We have principals
whether by direct participation, cooperation, inducement.
Accomplices and accessories to the crime are likewise
covered. So, it is regardless of the degree of participation.
testator. Of course later on, it must be proven that the case

against the testator is groundless.
3.
When a child or descendant has been convicted of

adultery or concubinage with the spouse of the
testator;
Again, the conviction here must be by final judgment. The

crime is adultery or concubinage, so it is a relationship either
with the testator or with the spouse of the testator. Take
note that we are talking here of a child or descendant who
has been convicted of adultery or concubinage. When we go
later on to the grounds to disinherit a spouse, there is no
similar ground when a spouse has been convicted of adultery
or concubinage with the child or parent of the testator. That
is not found there.
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;
The refusal must be without justifiable cause. To know

whether the refusal is justifiable, we have to know the needs
of the person to be supported and the capacity of the person
from whom support is being demanded. For example, the
parent is a billionaire and the child who asks for support is a
minimum wage earner, he can refuse to give support.
6.
Maltreatment of the testator by word or deed, by

the child or descendant;
The law says by word or deed. It can be that you punch him
every day or you badmouth him every day.
Seangio v. Reyes
The will here is entitled Kasulatan Sa Pag-Aalis Ng Mana.
(Maam reads will written in Tagalog) Here, the question is will
this ground constitute maltreatment sufficient to disinherit a
child? The Supreme Court said, taking the totality of the
circumstances mentioned by the testator and assuming that
these are proven, this will be considered as a sufficient ground
to disinherit the heir by reason of maltreatment. So,
[maltreatment is] not necessarily by deed. It can be by word.
Pecson v. Mediavillo
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;
In this case, the testator disinherited his grandchild. The

testator declared in his will that he disinherited his
granddaughter, Rosario, because she was grossly disrespectful
to the testator and that she raised her hand against said
testator. Raising a hand against the testator constitutes
maltreatment by deed under article 919 (6).
This is what we call groundless accusation. Take note of the

time. What if the testator identifies his heir to be the killer of
his dog? Such crime is not punishable by imprisonment for
six years or more. So, even if it is groundless, it has to be
crime for which the law prescribes imprisonment for six years
or more.
Based on the records of the case, the SC said that when

Rosario was 14 years of age, she had received some
attentions from a young man and that her grandfather, the
testator, took steps to sever the relations between her and the
young man. It was on that occasion that the alleged disrespect
and disobedience was made against the testator. That was the
cause of the disinheritance.
What kind of accusation [is contemplated]? It is either the

heir (1) filed an action directly against the testator (for
instance, he filed a criminal complaint for serious physical
injuries against the testator punishable by imprisonment for
six years or more), or (2) testified in a case filed against the
testator, or (3) refused to testify in favor of the testator if his
testimony is material to the acquittal or conviction of the
The record further shows that at some point, she lost the use
of her mental faculties. A conclusion was reached that Rosario
was probably not responsible for the disrespect and
disobedience to her grandfather in the year 1894 or 1895. So,
even if she raised her hand against her grandfather, the
Supreme Court concluded that it could not have been done
voluntarily or intentionally. Her disinheritance was considered
2.
85
invalid. Just take note of the circumstances of this case.
Maltreatment should be made voluntarily or intentionally with
knowledge of the consequences of such acts. Take note that
maltreatment is present only with respect to a descendant. [It
should be] a descendant who maltreats an ascendant, the
testator. It does not appear in the ground for disinheritance of
parents or ascendants by children. So, maltreatment by a
parent of a child is not a ground in the disinheritance of
parents although there are other similar grounds. Maybe it is
because it is somehow acceptable for a parent to badmouth
his or her child. It is likewise normal for a parent to inflict
tolerable pain to discipline the child but it is not normal for a
child to do so. That is why maltreatment is not a ground to
disinherit a parent or ascendant.
7.
When a child or descendant leads a dishonorable or

disgraceful life;
What is a dishonorable or disgraceful life? It is relative, so

you can argue. For example, you engaged in a one night
stand. Your parents knew about it, then they decided to
disinherit you on that ground. Is that valid? Is that
dishonorable or disgraceful life? It is not a lie if you argue. It
presupposes habituality or continuity. You can argue because
it is relative. But even if it is relative, that act has to be
habitual or continuous, and not just an isolated event.
8.
Conviction of a crime which carries with it the

penalty of civil interdiction.
If a child has been convicted of a crime, that is a ground to

disinherit.
Article 920. The following shall be sufficient causes for the
disinheritance of parents or ascendants, whether
legitimate or illegitimate: x x x
These are the grounds for the disinheritance of parents or
ascendants. Most of the grounds are also the grounds to
disinherit a child or descendant. Number 1 is also found
under article 919.
1.
When the parents have abandoned their children or

induced daughters to live a corrupt or immoral life,
or attempted against her virtue;
Here, the abandonment need not amount to a crime as long

as the parent deprived the child of the basic necessities in
life. Those which are required of him in order to support the
child like clothing, shelter, education, or medical assistance.
If he refused to provide such things, that is already
abandonment.
The law also provides induced daughters to live a corrupt or
immoral life. Here, the parent is already pimping the child.
That is already a ground to disinherit. Also, the attempt to
commit the act of rape or seduction is also a ground to
disinherit. Take note that the law speaks of daughters. How
about if the act was committed against a son? Would that be
a ground to disinherit the parent? Yes. Do not be literal. This
is not limited to daughters. It can apply by analogy to sons.
false;
4.
When the parent or ascendant has been convicted

of concubinage with the spouse of the testator;
5.
When the parent or ascendant by fraud, violence,

intimidation, undue influence causes the testator to
make a will or to already made;
6.
The loss of parental authority for causes specified in

this Code;
We should only refer to cases for loss of parental authority

when the loss of such authority is due to the fault of the
parent because even emancipation is a ground for the loss of
parental authority. When the child reaches 18 years old, the
parent losses parental authority. That is not a ground to
disinherit the parents. We only refer to the loss of parental
authority due to the fault of the parents.
7.
The refusal to support the children or descendants

justifiable cause;
8.
An attempt by one of the parents against the life of

the other unless there has been a reconciliation
between them.
For example, the father attempted to kill the mother. The

child, X, can disinherit the father because he attempted
against the life of the mother. Will this need conviction just
like in number 2 (when the parent or ascendant has been
convicted of an attempt against the life of the testator, his or
her spouse, descendants, ascendants), which requires
conviction? No.
In number 2, we need conviction by final judgment. In
number 8, mere attempt can be proved by preponderance of
evidence. There is no need for conviction but there might be
situations in number 8 which can be covered by number 2. Is
conviction required in number 8? No. Mere attempt is
sufficient in number 8. No need for conviction. Number 2
needs conviction by final judgment.
Take note that the law says unless there has been a
reconciliation between them. So, if your parents have
reconciled, you can no longer disinherit your father [on this
ground]. This is because if your mother has found in her
heart to forgive your father, what more on your part? You
are not the offended party.
Article 921. The following shall be sufficient causes for
disinheriting a spouse:
1.
When the spouse has been convicted of an attempt

against of the testator, his or her descendants, or
ascendants;
2.
When the spouse has accused the testator of a crime

for law prescribes imprisonment of six years or more,
and the has been found to be false;
3.
When the spouse by fraud, violence, intimidation,

influence cause the testator to make a will or to
change made;
xxx
2.
3.
When the parent or ascendant has been convicted

of an attempt against the life of the testator, his or
her spouse, descendants, or ascendants;
When the parent or ascendant has accused the
testator for which the law prescribes imprisonment
for six years or accusation has been found to be
5.
When the spouse has given grounds for the loss

authority;
6.
Unjustifiable refusal to support the children or the

other.
86
These are the grounds to disinherit a spouse. Again, grounds
number 1, 2, 3, 5, and 6 are similar to those previously
discussed in articles 919 and 920.
4.
When the spouse has given cause for legal

separation; x x x
Let us discuss number 4 (When the spouse has given cause

for legal separation). Can you disinherit your son or spouse
because he is gay? You cannot find that in article 921. You
cannot disinherit your parent because he or she is gay,
lesbian, or homosexual.
We also discussed article 919 when a child or descendant
has been convicted of adultery or concubinage with the
spouse of the testator and article 920 when the parent or
ascendant has been convicted of concubinage with the
spouse of the testator.
There is no specific provision in 921 which says when the
spouse has been convicted of adultery or concubinage with
the child or parent of the testator. What is now the remedy
of an offended spouse when that happens? Take note of
number 4 when the spouse has given legal spouse for legal
separation, in a sense, the innocent spouse may disinherit a
guilty spouse. A decree of legal separation is not required.
Merely giving cause for legal separation [is required] because
if there is already a decree of legal separation, by operation
of law, the guilty spouse is disqualified to inherit from the
innocent spouse, so there is really no need to disinherit
because he is already disqualified to inherit.
We should know the grounds for legal separation because
these are also the grounds to disinherit a spouse in addition
to ones mentioned in article 921. That would be article 85 of
the family code.
Article 55. A petition for legal separation may be filed on
any of the grounds:
(1) Repeated physical violence or grossly abusive
conduct against the petitioner, a common child, or a
child of the petitioner;
(2) Physical violence or moral pressure to compel
the petitioner change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the
petitioner, common child, or a child of the
petitioner, to engage in prostitution, connivance in
such corruption or inducement;
(4) Final judgment sentencing the respondent to
imprisonment for 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. (9a)
These are also the grounds to disinherit a spouse. Take a
look at number 8 on sexual infidelity or perversion. Even if
under article 921, there is no provision which says when the

spouse has committed adultery or concubinage with the
parent or child of the testator, that can still fall under article
55 (8). You do not even need conviction as long as he
committed an act which is considered as sexual infidelity or
perversion.
Number 9 provides for an attempt by the respondent against
the life of the petitioner. When, for example, the husband
attempted against the life of the wife, that is a ground to
disinherit the husband without need of conviction by final
judgment. This can be proved by preponderance of evidence.
Take note again of number 1 when the spouse has been
convicted of an attempt against of the testator, his or her
descendants, or ascendants. An attempt against the life of
the testator himself can be covered by number 9 (attempt by
the respondent against the life of the petitioner) of article 55
of the family code and likewise in number 4 (when the
spouse has given cause for legal separation) of article 921. If
the attempt is against the testator himself, you do not need
a prior conviction because, again, it is a ground for legal
separation, which requires no conviction.
Article 922. A subsequent reconciliation between the
offender and the person deprives the latter of the right to
disinherit, and renders ineffectual disinheritance that may
have been made. (856)
When you say reconciliation, it is a mutual restoration and
resumption of feelings between the testator and the
disinherited heir prior to the offense. Reconciliation implies a
bilateral and mutual act between the testator and
disinherited heir. The heir asks for forgiveness and the
testator gives such forgiveness. What is the consequence?
There has already been a disinheritance in the will but
because of the reconciliation, that disinheritance can no
longer be given effect.
Example:
I hereby disinherit my son because he attempted against my
life. In fact he was already convicted and is now imprisoned.
But I forgive him after he sought my forgiveness because I
love him. Such disinheritance was not erased from the will
despite the forgiveness, so when the will was presented for
probate, the other heirs may exclude him because of that.
Nevertheless, the disinherited heir may use as a defense that
there has already been reconciliation between him and the
testator. Because of the reconciliation, the disinheritance was
no longer effective,
Or, when there has already been reconciliation prior to the
execution of the will, the testator can no longer disinherit the
son based on the same offense because there has already
been reconciliation. That deprives the testator of the right to
disinherit the heir. But take note that reconciliation
presupposes a bilateral act. So, if only the father forgave the
son, even if he published such forgiveness, but the son did
not ask for forgiveness, there is no reconciliation. It has to
be a mutual act.
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.
What is the effect of a valid disinheritance? It deprives the
compulsory heir of his legitime. He is excluded from the
entire estate.
Example:
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The testator in his will disposed only half of his properties
along with the disinheritance, can the disinherited heir claim
a share in the other half of the estate not disposed by the
testator? No. The disinheritance must be total. If A was
disinherited, he is totally excluded from the estate, but A can
still be represented. The share of A shall go to his child B if
he has a child or representative. Again, a disinherited heir
can still be represented.
Under the family code, if the child is a minor, parents as the
natural guardian of the minor have the usufruct and
administration over the properties of their minor children.
However, that will not apply in properties received by the
minor child by virtue of his representation of the disinherited
parent. In the given example, A cannot manage or
administer the property received by his child, B, from the As
parents. Who will then manage said properties? The spouse
of A can administer. If there is none, a guardian must be
appointed.
SECTION 7. Legacies and Devises
October 1, 2015 (ZM)
Art. 924. All things and rights which are within the
commerce of man be bequeathed or devised.
A devise is a specific gift of real or immovable property.
Legacy is a specific gift of personal or movable property. It
also covers intangibles or incorporeal rights. We discussed
before what can be the subjects of succession; the
properties, rights and obligations. So under 924, what can be
devised, all things and rights which are within the commerce
of men.
So our discussion before on what properties or rights may be
transmitted through succession that would be the same here.
Take note, 924 only mentions things and rights. It does not
mention obligations. But the subject of succession can be
properties rights and obligations although again in legacies
and devises, who would accept if you hereby bequeath to A
my debt of 1M. nobody will accept that.
Art. 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)
For example a legacy or devise is provided in the will. Who
has the obligation to deliver the property devised or
bequeathed? If nobody is charged in particular, then it is the
estate through the executor or administrator. So he or she
should deliver the property devised or bequeathed to the
devisee or legatee. The testator may also charge that
obligation to the compulsory heirs.
The legacy or devise may be part of what has been xxx to
the heir but if it is a compulsory heir it should not exceed the
free portion. It should not affect his legitime. Only that
portion which is given over and above the legitime can be
charged with the legacy or devise.
A legatee or devisee himself may also be charged with the
obligation to deliver the legacy or devise. But again the law
says only to the extent of the value of the legacy or devise
received by them. If they have been given a legacy of 1M the
charge cannot exceed 1M.
If you are a legatee and you have been charged to deliver a
legacy, that legacy which you are to deliver is what we call
SUB LEGACY or if you are devisee and you charged with

the obligation to deliver a devise that is a SUB DEVISE.
Art. 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)
So, he may charge one particular heir or all of them. If he
charges one then he alone shall be obliged. For example ang
legacy na nadawat niya is 4M and isa kay 3M and isa kay 2M
and all of them are charged with the obligation to deliver a
legacy to another person worth P200,000 and that 200 shall
be charged to their legacies. How shall they contribute? In
proportion to that they inherit.
Art. 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)
So this is one of the provisions of law where you remember
before in your obligations and contracts as a general rule if
two or more debtors concur in one and the same obligation,
the obligation is joint, so each to his own. But there can also
be solidary obligation if the obligation expressly so provides
or if the nature of the obligation provides for solidarity or if
the law provides for solidarity. So this is one the provision of
law which provides for solidarity.
Two or more heirs take possession of the estate. Before
distribution, the estate should be under administration but if
before partition, because there is already partition and the
shares are delivered then to each his own and ilahang
obligation.
But before partition, and that two or more heirs take
possession of the estate and something happens like a
house, A B and C possessed the house and through the
negligence of A the house is burned. Who is liable for the
damages? All of them and their obligation is solidary. Even if
one of them is negligent although among them, they can ask
for reimbursement from the one who was actually negligent.
But as to third persons, as to the estate itself, the obligation
is solidary.
Art. 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)
So for example A is a legatee and then he is also charged to
deliver a legacy like A will deliver to X a Honda civic car. So it
is not specified even if you say Honda civic car as to the
plate number etc, and there are several Honda civic cars in
the estate. There are blue, yellow, white and pink Honda
civic cars. So what if the legatee delivered to sub-legatee the
pink one and then there is actually a problem with that car
because there is a case and eventually the sub-legatee was
dispossessed of that car. There is a warranty on the part of
the legatee.
This warranty will apply only if the legacy is indeterminate
and indicated only as to its kind. Why? Because if the legacy
is indeterminate, the choice as to what shall be delivered
belongs to the legatee, so if he chose to deliver the pink one
and there is a problem he must replace it with another one.
This will not apply if the legacy is specific like if the testator
says, I hereby charge A the obligation to deliver to X this
Honda civic pink with plate number etc. so here the legatee
has no choice. He cannot deliver some other car. He must
deliver the car specified by the testator so there is no
warranty here against eviction if it is specific.
Art. 929. If the testator, heir, or legatee owns only a part
of, or an interest in the thing bequeathed, the legacy or
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devise shall be understood limited to such part or interest,
unless the testator expressly declares that he gives the thing
in its entirety. (864a)
Here, the thing given is only partly owned by the testator or
the heir or legatee charged, and the testator did not specify
as to how much would be given to the legatee like he owns
of the 10 hectare land in Matina and he mentions in the
will that he is giving that land to X as a sub devise. It is
understood that the sub devise is limited only to unless it
is expressly provided otherwise. If the testator says I won
but I am giving the whole to X. so that would be the whole.
How can the estate deliver the whole when the testator only
owns ? in that case if the testator knew at the time of the
devise that he did not own the entire things but he
mentioned that he would give the entire thing, there is an
implied directive to the estate to acquire the other half from
the owner. If the owner refuses to give that portion or he
demands an excessive price. In that case the estate would
only have to give the just value of that thing to the legatee
or devisee or to whoever that is to be given.
Art. 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)
Again the general rule is that you cannot what you do not
own, if you give by way of legacy or devise a thing which is
not owned by you, and you did not know that you did not
own the thing. So you erroneously believed that you own
that thing so the legacy or devise would be void.
I hereby give to A the land which is adjacent to my house
he thought that it was his land but turned out that it was not
owned by him, that will be void.
What if, wala pa siya namatay, he made that will and
subsequently the neighbor, the true owner of the land,
donated that land to the testator and subsequently the
testator later died. Can the devisee claim the land? The law
says 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. So it is
valid.
If you remember in sales, you sold a property and youre not
the owner of the property. That is not valid. So even if you
deliver the property, there is no transfer of ownership
because the seller is not the owner. But subsequently now
becomes the owner, can he take back the property that the
buyer bought? No. because he is now in estoppels by
operation of law, there is delivery to the buyer. The buyer
again by operation of law immediately becomes the owner of
the property to murag ing-ana gihapon.
So even if at the time he made the legacy or devise, dili siya
tag-iya and supposedly it is void and then subsequently the
testator becomes the owner then the legacy or devise
becomes effective.
If you remember 793, the law on after acquired property:
Art. 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)
As we discussed before, 793 refers to a legacy or devise. 793
simply says that whatever is added to the legacy r devise
after the execution of the will but before the death of the
testator will not go to the legatee or devisee.
Example, the testator devised to A a land 10 hectares in
Matina. At the time of the execution of the will, the land had
10 hectares. but because of accretion two years after the

execution of the will, the land increased in size so nahimo
siyang 11 hectares. upon the death of the testator how much
can the devisee claim? Under 793 only that property existing
as of the time of the execution of the will shall be included in
the legacy or devise; after acquired property shall not be
included.
Exceptions:
1.
Article 793, unless expressly so provided for by the

testator.
2.
in case of republication by means of a codicil
3.
Article 930.
Even if technically the property acquired by the testator is

after acquired property, diba at the time of the execution of
the will dili pa siya ang owner, it only existed after the
execution of the will when the testator acquired ownership
over the thing. Still, even of it is after acquired, the legacy or
devise shall still be effective, so this is the third exception.
Take note, 930, the testator at the time of the execution of
the will is not the owner at all of the thing. 929, partly owner
siya.
Art. 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)
Take note the same thing in 931, the testator is not the
owner of the thing but he knows he is not the owner and
despite that knowledge he is giving the thing as a devise or
legacy. That is valid. In 930, the testator does not know that
he is not the owner so here the legacy or devise is not valid.
Going back to 931, because he is not the owner of the thing,
to give effect to that devise pr legacy, the estate would have
to acquire the thing. So if the owner refuses to alienate or
demands and excessive price, then the estate would have to
give the legatee or devisee the just value of the thing.
Why is it in 930 it is void? In 931 it is valid? Because 931 it is
very clear that the testator knows that he is not the owner
but despite that he is giving the thing. In 930 wala pa kabalo
because when he made the will, he thought that he was the
owner and it was found out that he was not the owner. We
cannot presume that had the testator known that he was not
the owner he would still give the thing. We are not sure of
that. So here the legacy or devise is void. In 931, we are
clear na ihatag jud niya masking kabalo siya na dili iya.
Art. 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)
In 2000, the testator executed a will. He devised to A a
parcel of land. But A is actually the owner of the land. What
is the status of that devise? It is void. You cannot give to A
what A already owns.
The law says even if another person may have an interest
over the thing. Example, this land is owned by A but he
mortgaged the land because he has a debt of 1M and the
testator devised to A the land. Again, what is the status of
that devise or legacy? It is void? How about the fact that it
was mortgaged? It does not matter because it is still void.
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What if the testator says, I hereby give this land to A and I
order the land be given and encumbered to A. it shall be free
from all encumbrances the status is that the devise is void
because it is owned by A. But what is the effect of that
declaration by the testator that it should be free from
encumbrances, that will be given effect. So the estate will
pay the loan of 1M so that the land can be freed from the
mortgage but as to the devise itself, it is void because the
land is owned by A.
Take note, 932, at the time of the execution of the will it is
the legatee or devisee that owns the thing bequeathed or
devised.
Art. 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)
Again the first paragraph refers to a situation where the
legatee or devisee is the owner at the time of the execution
of the will. The legacy or devise is void. What if A sold the
land?
In 2001 A sold the land in 2005 at the time of the testators
death, A is actually no longer the owner of the land because
he already sold it in 2001 but he was the owner at the time
of the execution of the will in 2000. Will this have an effect
on the legacy or devise? Just remember as long as the thing
devised or bequeathed is owned by the legacy or devisee at
the time of the execution of the will, it is void even if
subsequently he sold the property. Ang tan-awon nato, time
of the execution of the will.
The second paragraph, the situation is that at the time of the
execution of the will, the legatee or devisee is not the owner.
But subsequently, nakuha niya. So in 2000, the testator
devised to A a land. Dili si A and tag-iya. Maybe the testator
owns it or if some other person the testator knew nga dili
iyaha. So he devised the land to A in 2000. In 2001, the land
was acquired by A. and in 2005 the testator died, A is still
the owner of the land. What is the status of that devise
made by the testator in his will to A? At the time of death,
ang tagiya ato is si legatee or devisee na.
So the law says if he acquired it gratuitously, for example in
2001, gi donate diay tong land kang A, and then iyaha na, he
cannot demand anything at all from the estate. He can claim
nothing by virtue of the legacy or devise. Why? Because the
object of a legacy or devise is for the legatee or devisee to
acquire the thing gratuitously diba. He already acquired it
gratuitously during the lifetime of the testator so wala. But if
A acquired it by onerous title, like gipalit niya in 2001, the
estate would have to reimburse A with the price to give
effect to the intention that the testator wanted to give the
land to A gratuitously. So valid and legacy or devise kay at
the time of the execution of the will, the legatee or devisee is
not the owner.
We also have the term in succession, the term ADEMPTION
it is the process of giving effect inter vivos to a disposition
mortis causa. So naa kay mortis cause disposition but it can
be given effect even during the lifetime of the testator. for
example the testator is the owner of that land, gi donate niya
kang A and land even after he devised, meaning ana, wala
na siyay intention na I devise kay gihatag naman niya during
his lifetime.
Art. 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 bequeathed or devised has been pledged
or mortgaged. It doesnt matter under 943 whether the
mortgage or pledge was done before or after the execution
of the will by the testator. I hereby give to A a specific land
but the land is mortgaged. Namatay is testator. is the legacy
or devise valid? Yes because the testator is the owner. What
are the rights of the devisee upon the death of the testator?
He may demand the delivery to him of the land plus he may
demand that the etstate pay the debt so that the thing can
be freed from the mortgage or pledge.
So remember, pledge or mortgage to secure a recoverable
debt whether the pledge or mortgage was done before or
after the execution of the will. So the estate will have to pay
the debt so that the pledge or mortgage will be extinguished.
Now this will not apply if the thing is burdened not by a
pledge or mortgage to secure a recoverable debt. For
example, the testator owned a land and devised it to A but
the land was used by the testator as a property bond to
secure the provisional liberty of another person. And then
the testator died. Can the devisee demand na I free ang land
from the burden from having been constituted as a property
bond? Walay obligation ang estate. So the burden passes on
to the devisee in that case. Kung misibat tong piniriso na
subject sa bond, wala xxx pud ang property. Unlike kung
pledge or mortagge, na dapat bayaran sa estate ang utang
secured by the pledge or mortgage.
This is the meaning of Any other charge, perpetual or
temporary, with which the thing bequeathed is burdened,
passes with it to the legatee or devisee.
So if it is not pledge or mortgage to secure a recoverable
debt, walay obligation si estate to free that property from
that burden.
Art. 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)
935 talks about a legacy of credit and a legacy of remission.
For example, D borrowed 1M from the testator. so D is the
debtor of the testator. if in his will the testator says
whatever receivables I may have from D at the time of my
death, those receivables are already considered, remitted or
condoned. So what we have is a legacy of remission in
favor of D.
For example the testator said whatever receivables I may
have from D at the time of my death, I am already giving
those receivables to X so what we have in favor of X is a
legacy of credit.
The law says that the legacy of remission or legacy of credit
shall be valid only with respect to those credit or debt which
exist at the time of his death.
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For example, the testator made a will in 2005 and nangutang
si D also in 2005 and then in 2006 nibayad si D ug P200,000.
Nibayad napud siyag P300,000 in 2007. Namatay si testator
2010. How muchy would be the legacy of credit or
remission? Only that which exists at the time of death. So 1M
minus 300k and 200k so P500,000 nalang. So that is the
legacy of credit or remission.
What if instead of paying nangutang nuon siya ug additional.
In 2006, 200k in 2007, 300k. At the time of death ang utang
is 1.5M so how much is the value of the legacy of credit or
remission? 1M which is the value at the time of the execution
of the will or 1.5M, the value at the time of death? Its only
1M. nganung way apil ang additional 500k? Because again,
we have 793, the rule on after acquired properties. So the
additional loans are considered in the nature of after
acquired properties.
Art. 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)
First paragraph, we are referring to the legacy of credit or
legacy of remission. The law says the legacy shall lapse
meaning it shall be considered revoked if after having made
the will giving to A the credit or condoning after the
executing of the will, the testator brought an action for
collection, for example, 1M, he executed a will saying
whatever receivables I may have from D at the time of my
death I consider it condoned legacy of remission. After
making the will, he filed an action for collection against D
and wala nag bayad si D and then the testator died. So can
D collect the 1M na legacy? No more because it has been
revoked even if the testator did not say that I am revoking
it but his action of filing a case for collection, that is an act
considered by law as revocation, thats actually revocation by
operation of law which is one of the three modes of
revocation.
Remember, the law says should bring an action this
contemplates a judicial action. If the testator merely sent a
demand letter that would not amount to revocation. So there
has to be a judicial action.
The second paragraph refers to a legacy of a thing which is
owned by a legatee or devisee. So assuming A borrowed
P10,000 from testator and to secure his loan, he pledged his
ring to the testator. So in a pledge you deliver to the pledge
the possession, the pledgor should be the owner. So the
testator bequeathed to A that ring which was pledged by A.
so A is the owner of the ring diba a legacy or devise of a
thing belonging to the legatee or devisee is void so void to
siya na legacy.
What are its legal consequences? The law says it is
understood to discharge only the right of pledge. So what is
the meaning of it shall discharge the right of pledge?
meaning, wala nay pledge naa gihapoy utang. Remember
ang utang lahi siya sa collateral. So naa gihapoy utang but it
is no longer secured kay wala namay pledge.
So the consequence of that would be:
1.
The legacy is void because the thing belongs to the

legatee
2.
The pledge is extinguished. So the testator would

have to return the ring to the legatee or pledgor.
3.
The loan still subsists. The estate may still collect

from A but because there is no longer a pledge
unya wa pa kabayad, they can no longer proceed
against the ring because extinguished na ang

pledge.
Art. 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)
Kung nag bayad, ang balance lang at the time of death ang
considered na legacy of remission or credit pero kung
nangutang ug dugang, wala nay labot sa legacy of credit or
remission katung subsequent utang because aside from 937,
we also have 793 on after acquired properties.
Art. 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. (837a)
So here, it is the testator who is the debtor, naa siyay utang
kay C and then in his will he gave to C 1M as a legacy.
Should it be applied to, halimbawa si testator naay utang kay
C na 1.5M and then in his will the testator gave a legacy to C
of 1M should that be applied to his debt? The law says no.
So si C can receive the 1M as a legacy plus he may collect
the 1.5 debt of the testator. unless the testator so expressly
so declares nga kaning 1M bawas ni siya sa akong utang
then it shall be applied. So ang ma collect nalang after the
delivery of the legacy is katung P500,000.
Art. 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)
Here, pagtuo ni testator naa siyay utang pero wala diay. I
hereby allocate 1.5M to C in payment of my debt. But it turns
out wala siyay utang. The law says the disposition shall be
considered as not written. So if he says I hereby allocate to
C 1.5M in payment of my debt then ang utang nalang diay
niya is 1,2M then dili ihatag ang 300k. unless a contrary
intention appears then katu jung tanan iyang ipahatag
despite the fact nga ang utang is 1.2 lang.
The last paragraph says this is without prejudice to the
fulfillment of natural obligations for example in natural
obligation, a debt that has prescribed. So the testator has a
debt to C but the debt has already prescribed. In his will, the
testator provides for the payment to C of his debt. If that is
paid, the estate can no longer recover what has been
voluntarily delivered or paid. So the law on natural
obligations would be applied.
Art. 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)
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You remember alterative obligations, there are several
prestations due but the delivery of any one of them is
sufficient to extinguish the entire obligation. Like the
obligation is to deliver jewelry, car or a horse. The delivery of
any one of them would be sufficient. So here, alternative
legacy or devise.
Here the right of choice is given to the heir legatee or

devisee. The general rule under 941, administrator or
executor. Pero pwede siya ihatag sa heir, legatee or devisee.
So siya ang mag pili kung unsa iyang gusto. Again the same
rule, he cannot choose an inferior quality or superior so
medium quality.
So ang gi ingon sa testator hatagi si X ug jewelry or car or

horse, dili tanan, isa lang. so kinsa ang mupili kung unsa ang
ihatag? So it will be the heir. So halimbawa si heir ang gi
charge na i-deliver ang legacy or devise so siya or executor
or administrator kung walay gi charge with the obligation. So
once the choice is made, irrevocable na siya. But of course
when you say the choice is made, made not in the mind
only of the heir charged kay he can always change his mind,
once na deliver na niya he cannot change it anymore.
Halimbawa namatay si heir, legatee or devisee who was
charged with the obligation to choose, then the obligation to
choose will be exercised by the respective heirs. Halimbawa
si A ang heir na gitagaan ug obligation to choose, namatay
siya then his heirs.
Art. 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)
Art. 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)
So here the legacy or devise is generic. When you say
generic it is not specified, it is described only as to its kind
and there is no such thing of the same kind in the estate.
Like I hereby give to A a car but there is no car in the
estate.
The law says if it is a legacy of a generic personal property, it
is valid even if there be no things of the same kind in the
estate. So kung walay car then mangita is estate ug car para
mahatag kang legatee.
But, if it is a devise of indeterminate real property and there
is no such real property in the estate the devise is void. I
hereby give to A a land but there is no land in the estate.
Mangita ba ug land ang estate para ihatag kang A? dili. Void
siya.
If you remember before we have an example, there is an

instance na naghatag si testator ug property which is not
owned by him. What is the difference? In that example,
there is a specific property I hereby give to A this land
which is adjacent to my house ang the testator knew na dili
to iyaha pero gihatag gihapon niya. It does not belong to his
estate. It is valid. Here, the estate has an implied obligation
to acquire the thing because we are talking of a specific
property but here, generic lang a land so kung walay land
sa estate walay ihatag. Pero kung naay land then the devise
would be valid.
So the right of choice belongs to the executor or
administrator. What is the duty? Halimbawa sa legacy of
generic personal property we dont have a problem even if
there is no such thing in the estate. In generic real property
valid lang siya kung naay same thing sa estate. So the estate
will have to deliver the medium quality. Not inferior, not
superior but medium quality taking into account of course
the status of the person to whom the property is given and
the capacity of the estate.
Art. 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)
It is not difficult to understand to halimbawa namatay siya

unya wala siya naka-make ug choice then the right of choice
will be exercised by his heirs.
Art. 944. A legacy for education lasts until the legatee is of
age, or beyond the age of majority in order that the legatee
may finish some professional, vocational or general course,
provided he pursues his course diligently.
A legacy for support lasts during the lifetime of the legatee, if
the testator has not otherwise provided.
If the testator has not fixed the amount of such legacies, it
shall be fixed in accordance with the social standing and the
circumstances of the legatee and the value of the estate.
If the testator or during his lifetime used to give the legatee
a certain sum of money or other things by way of support,
the same amount shall be deemed bequeathed, unless it be
markedly disproportionate to the value of the estate.(879a)
944 talks of 2 kinds of legacies: legacy for education and
legacy for support. How long will this legacies last?
For education it will last until the legatee is of age so, 18, or
beyond the age of majority so that he will finish some
professional or vocational or general course provided he
pursues his course diligently. So dili pud forever. Like in law
school, beyond majority man mo so kung naa moy legacy for
education, padayun gihapon siya. halimbawa dugay na kayo
mo sa lawschool, ma justify gihapon ninyo na tagaan
gihapon kog padayun because I am pursuing my course
diligently. So that is now the question. How do you know
whether or not it is pursued diligently. So relative siya.
For support, during the lifetime of the legatee unless
otherwise provided. How much? Depende daw sa social
standing sa person na nag school or na support and the
value of the estate. Kung gahatag si testator ug amount
during his lifetime, pwede to siya himuong basis unless
disproportionate siya sa value of the estate. So these are the
guidelines.
Art. 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)
So here there is a pension. A certain annual or weekly
amount which is given as a pension. When can you ask for
these pension or allowance? The law says upon the death of
the testator, but the problem is, were talking here of a
legacy so it should be made in a will and before the will is
probated you cannot use that will as a foundation for any
right. So of course this presupposes that the will is probated
and then you can ask. For example dugay kayo na-probate
ang will then as long as there is probate mag retroact lang
imong right so it should start from the time of death of the
testator.
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Art. 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 bequeathed should be subject to a usufruct. For
example the testator bequeathed to A a certain property like
a car. But the car is subject to a usufruct so it is being used
by U. What is the obligation of the estate upon the death f
the testator? of course upon the death of the testator
because the car has been bequeathed to A, then A now
becomes the owner of the car. But it is subject to a usufruct
so gina gamit pa ni U. naa bay obligation si estate na
humanon ang usufruct para pag hatag kay A wala nay
burden?
The law says no. the legatee or devisee shall respect such
right until it is legally extinguished. If you remember under
the law on usufruct actually the general rule is that the death
of either party extinguishes the usufruct. So kung silent lang
ang contract ni testator and ni U sa usufruct, upon the death
of the testator mawala na gyud tong usufruct. Pero they can
actually stipulate otherwise. The testator and U may still
provide na even upon the death of either party, the usufruct
shall still subsist. So in that case walay obligation ang estate
na I free ang thing from the usufruct so it has to be
respected by the legatee or devisee unlike when the burden
is in the nature of a pledge or mortgage to secure a
recoverable debt, in that case the estate has the obligation
to free the thing from the pledge or mortgage.
Art. 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)
Here we are talking of a pure and simple legacy or devise.
Meaning, there is no condition, there is no period, there is no
burden or mode so pure and simple. When will the rights of
the legatee or devisee accrue? From the time of death
because they dont have to fulfill or wait for anything. So
immediately they acquire the property. But of course subject
to probate even though theoretically from the time of death
they already acquired but they have to wait until the will is
submitted to probate but their ownership starts at the time
of death, what if wala niya nakuha pa at the time of death
kay naa pay nahitabo na certain things like katung probate
unya namatay sila, their rights will be transmitted to their
heirs.
Art. 948. If the legacy or device 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)
Here the legacy or devise is specific and determine and it
pertains to or owned by the testator. Again, this should not
be subject to any condition etc. the law says, the ownership
is acquired upon the death of the testator. what if it is a
land, naay growing fruits, so daghan na siyag bunga. Who
owns the fruits? The estate or the devisee? Basta growing
fruits, wala pa siya natanggal sa punu-an, owned pa na siya
by the devisee. Part na siya sa iyang devise. Or unborn
offspring so bata, legacy tapos buntis, of course apil to sa
imong legacy. Uncollected income, remember for example
gitagaan kag building and the building is being rented out.
So the testator made a will devising to you the building. That
was in 2010. And then namatay siya 2012. Naay mga 2 years
worth na rentals na wala pa na-collect. So rentals from 20102012. And then wala gihapon nag bayad until 2014. So na
gihapoy uncollected rent 2 years before the death and 2
years after the death. So what are the rights of the devisee?
Upon the death of the testator in year 2012, he is already
the owner of the building. How about the uncollected rents?
Who is the owner? The law says the uncollected income but
not the income which was due and paid before the latters
death so walay labot tung 2 years before because those
rentals would be in the nature of after-acquired properties
under 793 so they would pertain to the estate. But income
which accrued which means earned but not yet collected, in
2012 kay devisee na na siya because it is part of his
ownership. We discussed that in 781 katung 2 years income
after the death.
From the moment of death, because the devisee is the
owner, he bears the risk of loss or deterioration and he also
gains by the increase or improvement.
Art. 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)
Take note, 948 talks of specific and determinate thing.
Kabalo nata kung unsa gyud ang gihatag kang legatee or
devisee. So you can point that out with particularity. In 949
generic ang iyang gihatag like a car, a land. How do we
know kung unsa juy ihatag? Depende diba kung unsa ang
pillion ni executor or administrator. Before choosing, wala ta
kabalo kung unsa. The law says the fruits and interest as a
general rule, from the time of death of the testator will not
go to the legatee or devisee because prior to delivery fo the
thing to the legatee or devisee wala ta kabalo kung katu ba
gyud. Like 1 hectare land. Unya naay 1 hectare land sa
Matina, sa Calinan, sa Panabo ug sa Padada. So wala ta
kabalo aha didto so di ta ka ingon na ang fuits sa padada
ihatag nako sa imuha kay di ta sure kung katu ba gyud. But
from the time that it has been delivered to him, katu, all the
fruits like sa Padada land, so from the time na gi-deliver sa
iyaha or gi ingon na katu ihatag sa iyaha then he is already
entitled to the fruits.
Unless the testator has expressly so ordered. so the testator
may actually provide that the land and all the fruits in the
land starting from my death shall pertain to the devisee. So
katung Padada land, all fruits starting from the death shall
pertain to the devisee.
Art. 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)
The code name for article 950 is RPSESA.
1.
R stands for remuneratory legacies or devises. These

are made by the testator inconsideration of the services
made by the legatee or devisee but that which does not
constitute a recoverable debt. Just to remunerate the
legatee or devisee for the services he made.
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2.
P stands for preferred legacy or devise. Katung gi ingon

sa testator na this one shall enjoy preference or
priority so this is a preferred legacy or devise.
3.
S stands for support. Under the family code, support is

everything indispensible for sustenance, food clothing or
medical attendance, even education. But here, we
exclude education under support.
th
4.
Education is treated differently it is in the 4 priority, E,

which is education.
5.
S stands for specific, determinate thing which forms a

part of the estate. If there is a legacy or devise of a
specific thing which is found in the estate that is the 5th
priority.
6.
All others, I pro rata lang sila all others like legacies of
specific things but not forming part of the estate so they
will fall under that. Or the legacies which are generic or
all others na wala na-mention as remuneratory or
preferred etc.
So what do we mean by 950? For example there are these

kinds of legacies or devises provided in the will but the free
portion is not sufficient. So asa ang unahon ug satisfy? So
unahon natog satisfy ang remuneratory legacies or devises.
Kung naa pay nabilin and naa pay nabilin sa estate sunud
nato tagaan tong legacies which are preferred.
Kung naa pay nabilin sa estate, support and kung naa pa,
education.
Halimbawa, wala na. didto ra ka kutub.

So kung naa pa adto naka sa number 5.
Kung naa pay nabilin after number 5, halimbawa naa pay

nabilin na 100,000 pero naa siyay legacies like legacy
number 1, 300,000. Ang legacy number 2 is 150,000 and
number 3 kay 200,000. So obviously dili jud enough and
nabilin na 100,000. How do we satisfy? Pro rata.
300k+150k+200k = total
300k______x 100k = share pertaining to legacy 1

total
Q: do you remember a similar provision where the value of

the free portion is not sufficient to satisfy all the legacies and
devises and other testamentary provisions? We have 911. In
911 we discussed the rule. The rule is if there are donations
made t strangers and there are legacies and devises, diba
the donations made to strangers during the lifetime of the
testator shall be charged to the free portion. Legacies and
devises are also charged to the free portion. What of the
free portion is not sufficient to satisfy all these donations,
legacies or devises?
Under 911, the rule is between donations and legacies and
devises, donations are to be satisfied first so they enjoy
preference. So unahon tog hatag sa free portion ang
donations. Kung 2 or more donations, the earlier donations
enjoy priority over the recent ones. Unahon ang mas karaan.
Kung naa pay nabilin and there is a preferred legacy then
satisfy the preferred legacy. After the preferred legacy, all
others, pro rata na. wala na silay distinction. So ang maelevate lang sa 911 kay katu rang preferred legacy. After
that pareha na sila tanan ug status.
But here in 950 we have the RPSESA. Unahon ang
remuneratory then preferred. Support. So when do we apply
911 and when do we apply 950? Just remember, 911 will be
applied if duha ka conditions ang mag-concur:
1.
There are compulsory heirs; and
2.
There are donations inter vivos.
In that case we follow article 911. Kay halimbawa naay

compulsory heirs pero walay donations inter vivos then
purely legacies lang and devises you follow 950 sa free
portion. Or halimbawa naay donations inter vivos pero walay
compulsory heirs, follow gihapon 950 because if there are no
compulsory heirs we do not even collate the donations.
So 911 if there are compulsory heirs and donations inter
vivos. Kung dili mag-concur or wala tanang conditions we
follow 950.
OCTOBER 5, 2015 (JCP)
Art. 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)
He cannot accept the gratuitous and repudiate the onerous.
How about if he accepts the onerous and repudiates the
gratuitous. The law says, cannot accept a part of the legacy
or devise and repudiate the other, if the latter be onerous.
He is just prohibited to repudiate the onerous and receive or
accept the gratuitous. There is no prohibition that he will
receive the onerous and repudiate the gratuitious.
Art. 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)
The difference between Art. 954 and Art 955 is that here
there are two or more legacies or devises, so the same thing
he cannot accept the gratuitous and renounce the onerous.
But again, there is no prohibition if he will accept the
onerous and repudiate the gratuitous. If both are onerous
and gratuitous so he can repudiate either or accept both or
renounce both, there is no prohibition unless the testator
intended that the two legacies or devise should be
inseparable. Dili pwede mamili dapat duhaj ud. All or
nothing. In that case, you cannot accept one and reject the
other. Accept All or Reject All if that is the intention of the
testator.
In the second paragraph, this refers to a compulsory heir
who is at the same time a legatee or devisee. You can waive
your legitime and accept the legacy or devise or renounce
the legacy or devise and accept the legitime.
Art. 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)
What happens if the legatee or devisee cannot accept the
inheritance for what reason maybe he predeceased the
testator or maybe he becomes incapacitated to inherit from
the testator or he repudiated his legacy or devise. What will
happen to the property given as a legacy or devise? Art 956
shows us the order of priority, as much as possible give
these properties to the one to whom it is intended. To the
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instituted heir, legatee or devisee. If he cannot accept then
determine if he has a substitute, if no substitute give to the
representative. In this case, there is no right to
representation in the Free Portion, so dili pwede ang
representation. Next, determine if accretion is possible.
Meaning, this land is given to A and B and then A cannot
receive in accretion the share of A will be given to B as long
as the requisites of Accretion are present. If accretion is not
possible like earmarking, the vacant portion will go by
intestacy. That is the last order of priority.
We have the acronym ISRAI. Institution, Substitution,
Representation, Accretion, Intestacy.
Art. 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)
This article talks about revocation by operation of law. We
discussed before revocation, there are 3 modes: (1)
Revocation by operation of law, (2) Revocation by
subsequent instrument or document and (3) Revocation by
Overt Act.
Here the testator did not expressly mention that he is
revoking the legacy or devise. In fact, he may not even have
the intention to revoke the legacy or devise but because he
performs these acts the law presumes that there is
revocation.
(1) Transformation. He transforms the thing and then
by reason of that transformation, the thing no
longer retains the form or the denomination it had.
For example, I hereby give to A a gold ring. It
should be specific because if it is just generic it
cannot be transformed. The generic thing will not
revoke the legacy or devise. And then subsequently,
ang gold ring gihimo nimong earrings, what
happens to the legacy of that gold ring? The law
says, there is revocation if there is transformation.
What kind of transformation? Nawala ang iyang
original form. Ang original form is ang ring karon
kay nahimong earring. And either the form or the
denomination or ang pangalan ascribed to it. Before
it was a ring now it is an earring.
(2) Alienation by any title or by any cause, so it
can be Alienation, Donate, Dispose. For
example, the testator devise to A his land in
Calinan, Davao City. After he devise the land, the
will was made in 2000. Gi-devise nya kay A in year
2000. In year 2002, the testator sold that very same
land to X, what happens to the devise? It is revoked
by operation of law. What if in 2003, nabalik kay
testator ang land kay void diay ang sale kay X

because it was a simulated sale no consideration.
And then, the testator died in 2005. Can the devisee
claim the land as his devise? If after the alienation,
the thing should belong to the testator even if it be
by reason of the nullity of the contract the legacy or
devise shall not thereafter be valid. So ang legacy
and devise revoked ghpn sya. It was sold or
alienated by the testator after the last will and
testament. Bisan pa ang land kay nabalik pa sa
testator kay void diay ang sale. What if testator
executed last will and testament in year 2000 and
devising to A a specific land. In year 2002, he sold
the land to X in year 2003 the land was returned to
the estate of the testator because the sale was
annulled due to vitiated consent. The testator died
in year 2005 can the devisee A claim the land as his
devise, was there revocation, take note for the
alienation to amount to revocation the sale made or
the alienation made by the testator should be
voluntary and intelligent. If the consent of the
testator was vitiated. There was involuntariness in
the alienation. Therefore, we cannot presume
revocation here because it is not voluntary, the
alienation contemplated under Art 957 should be
voluntary and intelligent ang reason. It should not
be involuntary. If the reacquisition has been
effected by virtue of the exercise of the right of
repurchase. Again, after we made a will here in
2000 the testator sold the land to X. It is a pacto de
retro sale and he really was able to repurchase the
land in 2004 and thereafter he died. SO can the
devisee claim the land? YES. The law says, unless
the reacquisition has been effected by virtue of the
exercise of Right of Repurchase. In that case, the
testator acquired the land because of the exercise
of the Right of Repurchase. The law sees the
reservation of the right of repurchase of the testator
as an intention to really honor the legacy or devise.
He really intended to give effect. So here, there is
no revocation. Halimbawa wala gi-repurchase sa
testator? Revoke gihapon kay wala man ang
property napalit na man sa uban. What if after he
made the will in 2000 the testator sold the land in
2002 under the deed of absolute sale and no right
of repurchase. In 2004, nakadaog og lotto si
testator, he offer to buyout the land from X the
previous buyer and X also agreed to sell the land
back to the testator. The testator died in 2005, is
the devise to A valid? Can A claim the land? It was
repurchase in 2004, can he argue that? NO.
Because, the repurchase made by the testator was
not by reason of the exercise of the right of
repurchase. Kato lang reacquisition by the exercise
of the Right of Repurchase, again the law presumes
when you reserve the right to repurchase, you did
that to honor the legacy or devise.
(3) Lost during the lifetime of the testator or
after his death without the heirs fault. You
remember the legal definition of lost, when the
thing perishes, goes out of commerce, or
disappears in such a way that its existence is
unknown or cannot be recovered. Total Loss here.
Again, take note that all the things referred to in Art
957 are legacies and devises of specific things. It
should be, without anybodys fault. We apply here
the rule that if the loss by reason of fortuitous event
not due to the fault of the heir who is obliged to
deliver, the obligation to deliver is extinguished.
Kung nawala sya due to the fault of the heir in
charge to deliver-bayaran nya. The obligation is not
extinguished.
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Now the last paragraph: 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.
We already discussed this, if the thing is already
indeterminate, the heir who has been charged with the
obligation to deliver the legacy or devise is liable for
eviction because when the thing is indeterminate it is
within his control what to deliver. If he chose to deliver
a property within the estate which is problematic that is
why the legatee or devisee is eventually evicted. Then,
he shall replace that with another one.
Art. 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)
over those who are in the collateral line. That is if he says,

those who are entitled thereto.
So, in one example the testator says I hereby give my
properties to the relatives of my wife. Do we apply Art 959?
NO. Because Art 959 refers to the testators relatives. This is
what we call a Collective Institution.
CHAPTER 3. LEGAL OR INTESTATE

SUCCESSION
SECTION 1. General Provisions
Art. 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;
So description of the thing. We already discussed before the

rules on the interpretation of the wills and how to resolve the
ambiguity in the will whether intrinsic or extrinsic. The
mistake if it can be cured as long as the thing can be
identified the legacy or devise will be effective.
(2) When the will does not institute an heir to, or

dispose of all the property belonging to the testator.
In such case, legal succession shall take place only
with respect to the property of which the testator
has not disposed;
Art. 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)
(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;
So, here the testator gave his properties in favor of his

relatives. How do we interpret the term relative? I hereby
give my 1M to my relatives.
(4) When the heir instituted is incapable of

succeeding, except in cases provided in this Code.
(912a)
Kinsa man ning relatives? Just remember, in testamentary

succession we have compulsory heirs. And then, legal
succession we have legal heirs.
The legal heirs are not limited to the compulsory heirs, the
legitimate children, descendants, spouse etc. Kung legal
succession aside from that we have brothers and sisters,
nephews and nieces, uncles and aunts.
So collateral relatives, when we say relatives under the law
on legal succession those who are related by consanguinity
(blood) to the decedent within the 5th degree. We are talking
here of the collateral relatives within the 5th degree.
In the direct line there is no limitation because in the direct
line it is impossible na naa pa mag-survive within the 10th
degree.
For you to qualify as a relative, within the 5th degree but the
rule that applies in Art 959 is the rule on proximity. That is
in-fact the rule that applies. Unsa man ng proximity? Ang
pinaka-duol sa testator, the right of representation does not
apply here. For example, the testator has siblings A and B,
under the rule on proximity A and B belong to the same
degree and they are nearer to the testator and they exclude
X and Y, Brothers and sisters, nephews and nieces etc.
Under Art 959, proximity as the only rule that applies mao
najud na sya. Kung patay na si A he will not be represented.
B excludes them. The right of representation does not apply
in Art 959. In legal succession preferred ang descending but
in Art 959 there is no preference as long as they are in the
same degree. We also have a rule that those in the direct
line are favored over those in the collateral line wala ghpn na
in Art 959. Basta do not complicate the rule on proximity. If
the tenor on the will is in favor of my relatives if he says I
hereby give my properties to those who are entitled thereto.
What is the interpretation of that? He is obviously referring
to his heirs in legal succession. We follow the rule on
proximity with the right of representation, the relatives in the
descending line are favored over those relatives in the
ascending line and those within the direct line are favored
We have a definition of testamentary succession, mixed

succession but actually when it comes to legal succession
there is no direct definition but merely enumeration of the
instances where there will be legal and intestate succession.
So here, the law provides for the distribution of the testate
on the presumption that the will of the testator had he left a
will but presumption lang.
(1) If a person did not left a will obviously a case of legal
succession or he left a will but the will lost its validity.
So, he left a will but the will was revoked or it was not
allowed probate because it was not allowed probate
because it did not comply with the formalities prescribed
by law. The properties will be distributed by legal
succession.
(2) When the will does not institute an heir. First, when can
the will which does not institute an heir? In case of
disinheritance a will containing a disinheritance, there is
no institution of heirs but there is still a disposition of
property. That is an indirect disposition, so here the
property will be distributed in legal succession excluding
the disinherited heir. The will does not dispose of all the
property. So here only portions of the estate is disposed
of in the will. This is a case of mixed succession. Third, if
a suspensive condition attach to the institution of heir
does not happen, is not fulfilled or if the heir dies before
the testator etc. SO here, the share or portion becomes
vacant. So that would be distributed by legal succession.
Fourth, when the heir instituted becomes incapacitated
to succeed.
(3) Except in case of predecease in no. 3 there is a
representative or
(4) in no. 4 there is also a representative if representation is
proper even in Art 960 we can see that legal succession
is the last priority. Remember ISRAI. Now it is important
that we know who are the legal heirs.
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Art. 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)
So, in general Art 961 gives us who are the legal heirs. In
legal succession first we have the compulsory heirs of the
will we have the legal heirs. So the legitimate children and
the descendants we have in default of the legitimate children
and the descendants, legitimate parents and ascendant, the
surviving spouse and then the illegitimate children.
Halimbawa wala na sila we have the legitimate and
illegitimate relatives of the deceased. Again, as I mentioned
before collateral relatives within the 5th degree of
consanguinity they are legal heirs and lastly the STATE if
there are no relatives within the collateral line of 5th degree
and no relatives within the ascending or descending line in
the direct line.
Art. 962. In every inheritance, the relative nearest in degree
excludes the more distant ones, saving the right of
representation when it properly takes place.
rule on proximity. Heirs and relatives within the same degree

inherit in equal shares.
Subsection 1. - Relationship
Art. 963. Proximity of relationship is determined by the

number of generations. Each generation forms a degree.
(915)
Art. 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)
Art. 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)
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. (912a)
Art. 966. In the line, as many degrees are counted as there

are generations or persons, excluding the progenitor.
The first rule in legal succession, the nearest relative exclude

the more distant ones. So this is what we call the rule on
proximity. Let us illustrate, we have the decedent, naa syay
anak si A and B, under the rule on proximity if all of them are
alive A and B are nearest to the decedent they exclude X, Y
and Z. For example, B died ahead of the testator and the
right of representation Z is elevated to the degree and status
of B, who will inherit? A and Z as representative of B. The
general rule is proximity.
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)
The second paragraph gives us the rule that heirs in the

same degree inherit in equal shares. If the estate is 1M and
the heirs are A and B they shall divide the 1M equally. They
shall inherit in equal shares because they are the same
degree. However, there are exemptions mentioned in Art
962. (1) Art 1006 with respect to the relatives of the full and
half-blood. Halimbawa si A and B kay mag-igsoon ni
decedent, estate is 1M, A is a full blood brother while B is a
half-blood brother. They cannot inherit equally because the
law says full-blood relatives inherit twice as much as halfblood relatives. In other words, half blood relatives inherit
half of the inheritance of the full blood. How do we divide 2:
1. Second, concerning the division between the paternal and
maternal line, Halimbawa, si decedent kay naa father and
mother, grandfather and grandmother on both side. We
divide by two between the paternal and maternal line.
500K and 500K pila karon ang distribution? 500K goes to
both sides and will be shared accordingly within that line if
no heir dies. Third exception, between legitimate and
illegitimate children but the legitimate child inherits more
that the illegitimate 2:1. Fourth, when we apply the right of
representation, example, decedent anak nya si A and B, Si A
anak nya X and Y, Si B anak nya si Z, assuming A
predeceased the decedent so A will be represented by X and
Y, theoretically by right of representation X and Y are
elevated to the degree and status of A. Theoretically, X and
Y ka-level na sila ni B by right of representation. How do we
distribute the estate in that case? 1M ang estate divided it by
2. To A 500K and to B 500K. Patay na man si A the
representative will divide the share of the person
represented, they shall only get the share of the person
represented. They will divide equally the 500K; 250K each X
and Y, 500K kay B. So those are the four exceptions to the
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 great-grandparent.
Art. 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)
Art. 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)
This Article talks of, one who is unwilling or one who is
incapacitated. First we go to those who are incapacitated.
For example, the decedent, children A and B, his
grandchildren X,Y (A) and Z (B). Assuming A becomes
incapacitated, there are several grounds for incapacity. A
becomes incapacitated what happens to the share of A?
Meaning DQ sya. He is represented by X and Y. Again the 1M
will be distributed between X and Y as rep of A (250K each)
and B gets 500K. or Unwilling, when you say unwilling he
repudiates. A and B survive the decedent A is unwilling to
receive his share. Meaning he renounced or repudiated his
share. How do we distribute the 1M, the share of A shall
accrue to B. So that is the meaning ACCRUE. The right of
representation shall not apply here, remember this basic
principle: An heir who repudiates cannot be represented. IF
A repudiates his share, his share shall accrue to B. The entire
1M shall accrue to B.
Art. 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
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repudiating the inheritance. (923)
Remember this basic principle: An heir who repudiates
cannot be represented. IF A repudiates his share, his share
shall accrue to B. The entire 1M shall accrue to B.
If both A and B repudiate their share. The grandchildren X, Y
and Z will inherit in their own right. The 1M will be divided by
3. In their own right means equal sharing. By right of
representation means they will inherit per stirpes. Again if
both A and B repudiates, they cannot be represented by X, Y
and Z but still X, Y and Z can inherit but not by
representation but in their own right that is per capita and by
representation by stirpes.
Subsection 2. - Right of Representation
Art. 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. (942a)
This art gives us the definition of representation, we already
mentioned this by fiction of law 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. When can there be
representation? When can the right of representation apply?
First, only in vacancies caused by predecease, incapacity or
disinheritance. Predecease, the heir dies ahead of the
decedent. Incapacity, the heir is disqualified by law to
inherit. Disinheritance, the heir is validly disinherited but still
he can be validly represented. In testamentary succession,
the right of representation applies only to legitimes. There is
no right of representation in the Free Portion. In legal
succession, it can apply to the entire estate because we do
not have a Free Portion there. The share can be represented.
Art. 971. The representative is
the law and not by the
representative does not succeed
the one whom the person
succeeded.
called to the succession by

person represented. The
the person represented but
represented would have
For example, B predecease the decedent then B would be

represented by Z so Z is the representative. Take note, the
representative inherits from the decedent. He does inherit
from the person represented. So that is another principle
that we have to remember.
Art. 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.
Take note of this Article. The right of representation takes
place only on the descending line. It does not apply in the
ascending line. The right of representation always goes
down. Take note, that the right of representation in the
collateral line takes place only in the children of brothers or
sisters or the nephews and nieces. Grand nephews and
nieces cannot represent only the nephews and nieces.
Art. 973. In order that representation may take place, it is
necessary that the representative himself be capable of
succeeding the decedent. (n)
The representative inherits from the decedent, he should be

capable to succeed the decedent. He should be qualified.
Art. 974. Whenever there is succession by representation,
the division of the estate shall be made per 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)
Halimbawa, it is A who predeceased the decedent he is
represented by X and Y. Take note, the representative only

steps into the shoes of the person represented. They cannot
inherit more than the person represented would have
inherited. This is what we call per stirpes.
Art. 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)
Please remember this Art. Assuming A and B is the brother
and sister of the decedent. X , Y and Z are nephews and
nieces. If A predecease his brother the decedent A can be
represented by X and Y who are the nephews and nieces of
the decedent. Inheritance ni X and Y would be per stirpes.
What if A and B predecease, so X,Y and Z are the only
survivors. The nephews and nieces shall inherit in equal
shares. How do we divide? The 900K shall be divided in
equal portions. Even if it is not by repudiation. Take note
because a different application is applicable to grandchildren.
Art. 976. A person may represent him whose inheritance he
has renounced. (928a)
Art. 977. Heirs who repudiate their share may not be
represented. (929a)
We already discussed before that a person who repudiates
cannot be represented. For example, B died, so mao ghpn ni
nga story, decedent naa syay anak si B, si B nay anak na si
Z. Halimbawa, Z naayanaknasi O. Namatay og una si B. B
predecease, ang heir ni B supposedly si Z iyang anak.
Supposing Z repudiates his inheritance, Z cannot be
represented. Ang estate ni B will go to the other heirs not O
because he cannot represent Z. An heir who repudiates
cannot be represented. It is again Z who repudiates. Now,
namatay si decedent. Iyang anak si A and B. B already died
ahead siAnlngisa. Question can Z represent B? Diba namatay
una si B, si Z repudiated his share in the estate of B because
of that repudiation Z cannot be represented. An heir who
repudiates cannot be represented. Subsequently namatay
napud si decedent. Who are the heirs of the decedent. Can Z
represent B? Yes. An heir who repudiates may still represent
the person whose inheritance he repudiated. But an heir who
repudiates cannot be represented. He can represent but he
cannot be represented.
SECTION 2. Order of Intestate Succession
Subsection 1. - Descending Direct Line
Art. 978. Succession pertains, in the first place, to the

descending direct line. (930)
Those in the direct line are preferred over the person in the
collateral line. Those in the descending line are preferred
over those who are in the ascending line.
Art. 979. Legitimate children and their descendants succeed
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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)
Again, we have legitimate children as legal heirs they shall
inherit in equal shares.
Art. 980. The children of the deceased shall always inherit
from him in their own right, dividing the inheritance in equal
shares.
The children shall inherit per capita. The grandchildren shall
inherit per stirpes.
Art. 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.
We are referring here grandchildren who concur with the
children of the decedent. A died ahead. The survivors are B
and X, Y inherit by representation and B in his own right.
Art. 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.
We are talking here of the inheritance of the grandchildren.
The grandchildren here inherit by representation. I want to
point this out. If any one of them should have died, leaving
several heirs the portion pertaining to him shall be divided in
equal portion. Halimbawa, kung namatay si A, si X and Y will
divide in equal portion. Pagnamataysi B, Both A and B
predecease the decedent ang share ni B kay maadto kay Z.
How shall they divide. Both A and B predecease the
decedent. They shall divide by two. SO kang Ana share
divide equally kay X and Y and B kay Z. SO, Z (500K) X and
Y (250K each). Representation ghpn even if the parent
predecease. This is different from Art 975 katong halimbawa
si A and B kay dili anak kay brothers and sisters of the
decedent then the nephews and nieces will inherit in equal
shares. If both, A and B repudiates their share then that will
be the time X, Y and Z will inherit in equal shares per capita.
Remember, if nephews and nieces all their parents are dead
they can inherit in equal shares. If grandchildren and their
parents are dead they can still inherit by representation in
equal shares.
Illegitimate children. What is the share of illegitimate child.
The estate is 900K, duha ang survivors. Children of the
decedent, we have A and B. How do we divide the
estate.Illegitimate children inherits of the legitimate child.
1 illegitimate child gets half the share of 1 legitimate child.
Sa testamentary succession we have the legitime, if the
estate is 900K, 450K anglegitime. So, share sa illegitimate
kay half sa share sa legitimate child. 225K pero kuhaon ni
sya sa Free Portion. In legal succession there is no Free
Portion. We have to dispose the entire estate. How do we
divide 900K A gets twice as much as B. So 2 plus 1 kay 3.2/3
kay A and 1/3 kay B. 2:1. 600k A and 300K B. Halimbawa
duha ka legitimate children, use algebra. Let X be the share
of the illegitimate child. 2 X ang share ni legitimate. Estate is
900K. We have 900K divide by 5. A1 360, A2 360K and B
180K. That is how you compute the shares of the children.
Art. 983. If illegitimate children survive with legitimate
children, the shares of the former shall be in the proportions
prescribed by Article 895. (n)

Art. 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)
Subsection 2. Ascending Direct Line
Art. 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)
When can the parents inherit? Actually, in default of the
legitimate children then the parents shall inherit. So pilaang
share sa parents? Depende kung kinsa iya kauban
nagsurvive. Kung sya lng, they shall get the entire estate. In
legal succession, when a specific class survive he shall get
the entire estate. Wala na may legitimedre. Take note, the
presence of the children whether legitimate or illegitimate we
exclude collateral relatives. Kung naakay illegitimate child di
na pwede mag-inherit sa imo ang brothers and sisters.
Parents also exclude the brothers and sisters of the
decedent. That is in Art 985.
Art. 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)
Art. 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, onehalf shall go to the paternal and the other half to the
maternal ascendants. In each line the division shall be made
per capita.
We already illustrated before the sharing of the ascending
line in testamentary succession katong per line. Halimbawa
mother and father ang nag-survive, they will inherit in equal
shares, mother side and father side. Take note, there is no
right of representation in the ascending line. In testamentary
succession, we limit ourselves to the legitime, to the half.
Now, we cover the entire estate.
Subsection 3. - Illegitimate Children
Art. 988. In the absence of legitimate descendants or

ascendants, the illegitimate children shall succeed to the
entire estate of the deceased. (939a)
We are talking of a situation where there are no legitimate
descendants and ascendants, also, no spouse. The
illegitimate children shall succeed to the entire estate. Now
the illegitimate children concur with the legitimate children or
the legitimate ascendants. Again, the legitimate ascendants
will never concur with the legitimate children. They only
succeed in default of the legitimate children.
Art. 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)
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There are several illegitimate children then one of them died
ahead of the others. That illegitimate child has his own
children. Just remember, this Art 989, an illegitimate child of
the decedent can be represented. You should remember
that. So, an illegitimate child can be represented.
Oct. 8, 2015 (RJVillacampa)
Like what we have discussed in Article 990, an illegitimate

child transmits his rights to his own descendants who can
inherit by right of representation from their grandparents. In
Article 990, if N (illegitimate) predeceased the decedent, he
can be represented by both S and T as Article 990 in
designating the descendants does not make any distinction.
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.
Assuming M (legitimate) predeceased the decedent, X

(legitimate) can represent M but Y (illegitimate) cannot
represent M since Article 992 bars illegitimate children to
inherit ab intastato from the legitimate relatives his father or
mother. The decedent here is a legitimate relative of his
father M (legitimate).
We are talking here of the hereditary rights given to

illegitimate children. In Article 990, it is very clear that an
illegitimate child has (1) successional rights; and (2) he can
also transmit his rights upon his death to his descendants.
If you will ask why S (legitimate child of an illegitimate) can

represent when if fact Article 992 provides for vice versa
prohibition such that the legitimate children and relatives
cannot also inherit from the illegitimate children?
Q: Who shall inherit by right of representation from the

grandparents? For example: if A is the decedent and has an
illegitimate child M and M has children X who is legitimate
and Y who is illegitimate. Assuming M predeceased the
decedent and he was survived by his children X (legitimate)
and Y (illegitimate), can M be represented?
Yes, he can be represented by his descendants (X and Y)
and the law does not make any distinction whether
legitimate or not.
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)
This talks about illegitimate children surviving with the
legitimate ascendants of the decedent or the parents or
grandparents of the ascendant surviving with the illegitimate
children. As to how should they divide the estate, the law
says to the parents and the other goes to the
There is no free portion because this is legal succession. In
legal succession, most of the time, there are two classes of
heirs who survive. In which case, they shall divide the estate
half-half except when the decedent have legitimate and
illegitimate children because in the latter case, the
illegitimate child is entitled to of the share of one
legitimate child.
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)
This is a very important provision also. This is the IRON
BAR RULE between the legitimate family and illegitimate
family. Here, an illegitimate child has no right to inherit ab
intestate (meaning by legal succession) from the legitimate
children and legitimate relatives of his father or mother. In
the same manner, such children or relatives cannot inherit in
from the illegitimate child.
For example, A is a legitimate child of the decedent and Y is
an illegitimate child, so they are half-brothers. Y can inherit
from their common father but he cannot inherit from his halfbrother A and the same thing, A cannot inherit from his halfbrother Y.
Another example is when a decedent has 2 children M
(Legitimate) and N (Illegitimate). Also, M has 2 children- X
who is the legitimate child and Y who is the illegitimate. On
the other hand, N has 2 children-S who is the legitimate child
and T who is the illegitimate child.
1.
S can inherit be reason of Article 990 because the

rights of an illegitimate are passed on to his heirs
who can represent him.
2.
Article 992 does not apply here because this is not a

case of a legitimate child inheriting from the
illegitimate child of his father or mother. In this
case, S is legitimate and his parent is illegitimate
and also, his grandparent is also illegitimate. Thus,
there is no application.
What is the purpose of the iron bar rule? As discussed by

Manresa, an illegitimate child is gracefully looked down upon
by the legitimate family and the legitimate family is in turn
hated by the illegitimate child. The latter considers the
privilege condition of the former and the resources of which
it is hereby deprived. The former in turn see the illegitimate
child as nothing but the product of sin, palpable evidence of
a blemish broken in life. The law does no more but recognize
this truth by avoiding other grounds of resentment.
It is resorted to in order to avoid further damage as
historically, they are not in good terms.
DIAZ vs IAC
On the issue of the appropriate law to be applied, the Court
ruled that it must be Article 992 of the NCC since the
hereditary conflict refers solely to the intestate estate of the
legitimate mother (Simona) of a legitimate child (Pablo).
On the standing of the oppositors, they are barred with
succession by Article 992 (Iron Bar rule) since they are
illegitimate children of the legitimate son (Pablo).
In this case, Pablo died ahead of Simona that is why the
illegitimate children sought to represent him. However, the
decedent here was the legitimate mother of the father of the
petitioner-oppositors who are illegitimate that is why they are
covered by the iron bar rule.
Assuming Pablo was an illegitimate child of Simona, the
petitioner-oppositors (illegitimate) can represent him because
of Article 990 because again, an illegitimate child can be
represented.
Assuming Simona dies ahead and Pablo who is Simonas only
son, dies thereafter, the petitioner-oppositors (illegitimate)
can get the properties left by Simona to Pablo and Article
992 is not applicable since it is not a case of illegitimate child
inheriting from a legitimate children or relatives of the
decedent. In this example, they are inheriting not from
Simona but from Pablo and the petitioner is inheriting from
their father.
Assuming Pablo dies ahead of Simona, the petitioners
(illegitimate) cannot inherit because of Article 992. Take note
that it matters who dies first.
100
SUNTAY vs SUNTAY
On the issue of the non-applicability of the Article 992 to
Emilio III. The court ruled that the underlying philosophy of
our law on intestate succession is to give preference to the
wishes and presumed will of the decedent, absent a valid
and effective will; The basis for Art. 992 of the Civil Code,
referred to as the iron curtain bar rule is quite the opposite
scenario in the facts obtaining herein for the actual
relationship between Federico and Cristina on one hand, and
Emilio III, on the other, was akin to the normal relationship
of legitimate relatives.
Emilio III was reared from infancy by decedent, Cristina, and
her husband Federico, who both acknowledged him as their
grandchild; Federico claimed half of the properties included
in the estate of the decedent, Cristina, as forming part of
their conjugal partnership and gains during the subsistence
of their marriage; Cristina's properties forming part of her
estate are still commingled with that of her husband
Federico, because her share in the conjugal partnership,
albeit terminated upon her death, remains undetermined and
unliquidated; and Emilio III is a legally adopted child of
Federico, entitled to share in the distribution of the latter's
estate as a direct heir, on degree from Federico, not simply,
representing his deceased illegitimate father, Emilio I.
From the foregoing, it is patently clear that the CA erred in
excluding Emilio III from the administration of the decedent's
estate. As Federico's adopted son, Emilio III's interest in the
estate of Cristina is as much apparent to this Court as the
interest therein of respondent, considering that the CA even
declared that under the law, [ Federico], being the surviving
spouse, would have right of succession over a portion of the
exclusive property of the decedent, aside from his share in
the conjugal partnership. Thus, we are puzzled why the CA
restored to a strained legal reasoning Emilio III's
nomination was subject to a suspensive condition and
rendered inoperative by reason of Federico's death wholly
inapplicable to the case at bar.
Thus, the legal presumption of Article 992 does not apply
here because since childhood, Emilio III and her sisters were
treated like their own by their grandparents as there was no
discrimination whatsoever. The animosity between the
legitimate family and the illegitimate children does not exist
in this case.
Aside from that when Federico sought to be appointed as
administrator in the estate of Cristina, subsequently he
adopted Emilio III and with that, Emilio III became the
legitimate child of Federico. When Federico died, Emilio III
was an heir and he inherits not only the estate of Federico
but also those received by Federico from Cristina. Therefore,
in the proceeding for the appointment of administrator in the
estate of Cristina, Emilio III had an interest because he was
an heir of Federico who happens to be an heir of Cristina and
he is qualified as an administrator being a person in interest
with the estate.
As to the appointment of being an administrator, it is not
equivalent to inheritance so in cases where the issue is on
the appointment of administrator, Article 992 does not apply.
What is barred by Article 992 is the inheritance by legal
succession and not the appointment for administration.
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)
So this is a case where an illegitimate child is survived by his

parents. In such case, his parents will succeed to his entire
estate if they are the only survivors. The parents shall share
the estate half-half.
Article 994. In default of the father or mother, an
illegitimate child shall be succeeded by his or her surviving
spouse who shall be entitled to the entire estate.
If the widow or widower should survive with brothers and
sisters, nephews and nieces, she or he shall inherit one-half
of the estate, and the latter the other half. (945a)
It talks about the estate of an illegitimate decedent. If the
spouse is the only survivor, she gets the entire estate. If
survived by the brothers and sisters and the spouse, halfhalf.
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)
Here, if the spouse is the only survivor, he gets the entire
estate. Take note that there is no other variation as to the
share of the surviving spouse who survives alone unlike in
testamentary succession. Here, if she survives alone, she
gets the entire estate. In legal succession, there is no
consideration as to marrying in Articulo Mortis, etc, etc.
because the purpose in testamentary succession is to
prevent the spouse for marrying for money.
Also, it must have no prejudice to the rights of brothers and
sisters, nephews and nieces, should there be any. If the
spouse survives with the brothers and sisters of the
decedent, then, the brothers and sisters get half and she
gets the other half. So the surviving spouse does not exclude
the brothers and sisters, nephews and nieces of the
deceased spouse as she concurs with them.
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.
The survivors here are the spouse and the legitimate
children. If the decedent is survived by 1 spouse and 1
legitimate child, the sharing is half to the spouse-half to the
child or the same share. Take note, this is different from
testamentary succession since in that case, the child gets
and the spouse gets .
If there are two or more children, in testamentary
succession, is the legitime of the legitimate children and
they will divide the said inheritance among themselves and
the spouse gets the same share as 1 legitimate child from
the free portion.
If there are two or more children and surviving spouse, in
legal succession, the law says the surviving spouse gets the
same share as that of each of the children. If the decedent
has 2 children, the estate will just be divided into 3.
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.
101
Here, there are no legitimate children, instead there are
legitimate parents or ascendants of the decedent surviving
with the spouse. The spouse gets and the legitimate
parent gets .
It is different from testamentary succession since, the
division is to the legitimate parents or ascendants and
to the spouse and the other is the free portion. Here in
legal succession, since there is no free portion, the entire
estate is hereby disposed.
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)
Here, the spouse is surviving with the illegitimate children
and there are no legitimate children so the division is halfhalf.
If there are 8 illegitimate children, the legitimate child gets a

share lower than his legitime. So, in such case, the above
used formula should not be followed and the formula in
testamentary succession will apply. In testamentary
succession, if decedent is survived by legitimate children,
spouse and illegitimate children, it will be:
Total Estate: 1,400,000
Share:
Legitimate children- of the estate
Spouse- same share with 1 legitimate child
Illegitimate children- share of 1 legitimate child
Thus:
Legitimate children-700,000 (350,000 each)
Spouse-350,000
Illegitimate children- still 350,000 (divided by 8)
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)
In this case, the spouse is survived with the legitimate
children and illegitimate children. The division of the estate is
that the widow or widower shall have the same share as that
of a legitimate child and illegitimate child has of the share
of one legitimate child.
Assuming there are 2 legitimate children- M and N, spouse-O
and one illegitimate child-A and the estate is 1.4 Million. How
do we divide the estate? The surviving spouse has the same
share as one legitimate child.
Formula:
Let X =1 illegitimate child
1,400,000 equal to x=200,000
2x=legitimate child (times 2)
7x
2x=spouse
Total: 7x
A-Illegitimate child-200,000
M-Legitimate children-400,000
N-Legitimate children-400,000
O-Spouse-400,000
Even if legal succession, it must be noted that even with the

use of the above computation, the shares of the legitimate
children should not go below their shares in testamentary
succession. Again, in testamentary succession, using the
above facts, each legitimate child should get 350,000, so it is
still proper. The problem is for example, there are 8
Formula:
Let X =1 illegitimate child (times

8)
1,400,000 equal to x=100,000

14x
2x=legitimate child
2x=spouse
Total: 14x
Illegitimate child-100,000 each

(All-800,000)
Legitimate children-200,000
Spouse-200,000
Instead of 175,000 in order to dispose all
Only that portion shall be given to the illegitimate children.

So after computing, there must be an evaluation if the
legitimes are still intact, if not, the division in testamentary
succession must prevail because the entire estate can still be
disposed.
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)
Here, the legitimate ascendants, the surviving spouse, and
illegitimate children are the survivors. It is divided in a
manner that the legitimate parents or ascendants get , the
illegitimate children get and the surviving spouse gets .
It is different from testamentary succession since in
testamentary succession (unholy provision), in the same set
of survivors, the legitimate ascendants receive , the
illegitimate children get and the surviving spouse gets 1/8
and the other 1/8 is the free portion.
In instances of mixed succession where there is intestacy, for
example, the testator left a legacy in his will worth 200,000
to X and that is the only provision in his will. However, he
left an estate worth 2 Million and the survivors are legitimate
parents, spouse and illegitimate child. There is still allowance
that even if there is deduction, the legitime of spouse is not
impaired.
In this case, the legacy will be deducted from the heir who
gets more in legal succession than in testamentary
succession. For example, in testamentary succession, the
legitimate parents receive , the illegitimate children get
and the surviving spouse gets 1/8. Thus, it is the spouse who
gets more in legal succession than in testamentary
succession and so, it will be deducted from the spouse. The
spouse still has the allowance where the legacy can be
deducted without the impairment of her legitime since her
legitime is only 1/8 so there can be deduction without
prejudice to her legitime. It cannot be deducted from the
others (legitimate parents and illegitimate children) since
there share in legal succession is the same in testamentary
succession.
Even there is a will, the 200,000 will not be first to be
deducted in such a way the , , and will be deducted
from the remaining 1.8 Million. Even in legal succession,
102
legitime must always be preserved. The 200,000 will not be
deducted as it impairs the legitime of the heirs.
Therefore, in legal succession, of 2 Million is 1 Million will
be given to the legitimate parents; of 2 Million is 500,000
will be given each to illegitimate child. The 1 Million and
500,000 is the legitime of legitimate parents and illegitimate
children and in testamentary succession, the spouse has only
1/8 as legitime, thus even if the legacy of 200,000 will be
deducted from the spouse, her legitime is not impaired. The
remaining 300,000 will remain to the spouse and in this
sense, there is no impairment.
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)
It was discussed already. The spouse survives with brothers
and sisters. The division will be half-half. If there are
brothers and sisters who predeceased and they are
represented by their children or the nephews and nieces of
the decedent with the same share, to the spouse and
to the nephews and nieces.
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)
It was discussed before in disinheritance that when there is
already a decree of legal separation, the guilty spouse is
disqualified by operation of law to inherit from the offended
spouse. In that case, if the guilty spouse is the survivor, he
or she will receive nothing but if the innocent or offended
spouse is the survivor, then, the articles which we discussed
will apply.
If there has been no decree of legal separation, the guilty
spouse is still an heir unless he has been disinherited.
Without disinheritance, even if he gave the cause for legal
separation and there is no decree, the guilty spouse can still
inherit.
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)
Article 1003 speaks of a situation where the collateral
relatives are the only survivors. Take note, the collateral
relatives are excluded by the children whether legitimate or
illegitimate and by ascendants but they are not excluded by
the surviving spouse. They actually concur with the surviving
spouse. Obviously, if they are the only survivors, they
succeed to the whole estate.
The rules to be followed here are:
1.
The nearer relatives exclude those far.
2.
Those in the descending line are favored than those

in the ascending line.
3.
Collaterals only covered those up to the 5th degree

of consanguinity.
4.
The right of representation in the collateral line

extends only up to nephews and nieces.
Article 1004. Should the only survivors be brothers and
sisters of the full blood, they shall inherit in equal shares.

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.
It was already illustrated before. For example, A, B, C and D
are the brothers and sisters of the decedent. If A
predeceased the decedent and the estate is 2 Million, the 2
Million will still be divided into 4 so each will receive 500,000.
Since A predeceased, his share will go to M and N (As
children) by right of representation and they inherit per
stirpes. It is different if, for example, all of them predeceased
the decedent. In such case, the nephews and nieces will
divide in equal shares.
If B predeceased, so A, C and D are still alive and O who is
Bs child also predeceased but O left another child S. Here,
only A, C and D can inherit since the right of representation
can only be extended in the collateral line only up to
nephews and nieces. It cannot be extended to S.
Article 1006. Should brother and sisters of the full blood
survive together with brothers and sisters of the half blood,
the former shall be entitled to a share double that of the
latter. (949)
Here, the survivors are brothers and sisters in the full blood
and brothers and sisters of the half blood. The law says the
brothers and sisters in full blood shall inherit twice as much
as brothers and sisters in half-blood, in short, 2 is to 1. It is
very easy. There is no need for illustration. The division is
the same in the division used for the share of legitimate and
Formula:
Let x = share of half brothers and sisters
2x = share of brothers and sisters in full blood
Here, the law presumed that the affection of the decedent of

the full blood siblings is more than the affection to the half
blood siblings. However, in testamentary succession, if the
testator instituted his brothers and sisters in full blood, and
brothers and sisters in half blood, they are presumed
instituted equally. There is no 2 is to 1 since the law provides
they are equal and here, there is a will and while making it
he has the opportunity to specify the shares of his siblings.
In the absences of specification, the law presumes equal
affection. However, in Article 1006, there is no will.
Article 1007. In case brothers and sisters of the half blood,
some on the father's and some on the mother's side, are the
only survivors, all shall inherit in equal shares without
distinction as to the origin of the property. (950)
Just read it. However, take note that there are instances all
half blood brothers and sisters but they have different
parents (Viuda or viudo, then, remarry etc). They are all
illegitimate but half brothers and sisters. Yet, it does not
matter since all shall inherit in equal shares without
distinction as to the origin of the property.
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)
Just read it.
Article 1009. Should there be neither brothers nor sisters
103
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)
Here, it talks about the other collateral relatives. As
discussed, the right of representation only extends only up to
nephews and nieces. Beyond it, the rule of proximity applies.
The nearer relatives exclude those far without distinction of
lines whether in the maternal or paternal line and whether
full or half.
Article 1010. The right to inherit ab intestato shall not
extend beyond the fifth degree of relationship in the
collateral line. (955a)
This only applies to the collateral line. If it is in the direct
line, ascending or descending, there is no limitation.
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)
For example, the decedent died intestate and has no
collateral relatives within the 5th degree and no more
relatives in the direct line, ascending or descending, the
entire estate shall go to the state. The right of the state to
take the property of the decedent, who died intestate but
have no legal heirs, is called the fiduciary right of the state
and the procedure for taking of the property is escheat under
Rule 91 of the Rules of Court.
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.
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
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)
The procedure for the distribution of the property called
escheat proceedings. Of course, the estate should pay the
debts and charges. If the decedent is a resident of a city or
municipality, the personal property shall be assigned to the
municipality or city where the deceased last resided, and the
real estate to the municipalities or cities, respectively, in
which the same is situated since it cannot be detached.
If the deceased not a resident of the Philippines, the whole
estate shall be assigned to the respective municipalities or
cities where the same is located. The beneficiaries are public
schools, and public charitable institutions and centers, in
such municipalities or cities and the court shall order the

distribution.
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)
Assuming the properties are already escheated in favor of
the government and subsequently a person, who is a legal
heir, appears. He can file a claim in order to acquire the
property within 5 years from the date the property was
delivered to the State. If it is proven that he is really a legal
heir, then, he shall be given the possession of the property
or if the [property is sold, part of the proceeds which has not
been lawfully spent by the state.
In a case, the decedent died and her properties are
escheated. Then, her friend who attended into her needs
during her lifetime, intervened in the proceedings and
claimed that the properties are donated to her by the
decedent. However, she was not able to present the deed of
donation so the properties are escheated to the state. But
after how many years, she found the deed of donation so
she filed a petition to recover the properties covered by the
deed of donation. The state claimed that the 5 years has
already lapsed from the date of distribution but the friend
said that the property is in the first place, not part of the
estate because they are donated to her so when the
decedent died, her estate does not include those which are
donated. However, the SC said that she has 5 years from the
date of distribution within which to recover the property
regardless of whether or not the donation is valid. And
because she filed the petition to recover the properties
beyond 5 years, then, the action is already lapsed.
October 15, 2015 (EAEscovilla)
CHAPTER 4. PROVISIONS
COMMON TO TESTATE AND INTESTATE
SUCCESSIONS
SECTION 1. Right of Accretion
So now we go to the provisions common to testate and
These concepts, we all apply whether it is testamentary
succession or legal succession. First we have Article 1015.
Art. 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)
Based on the definition under Article 1015, we have two or
more persons, instituted to the same or called to the same
inheritance, legacy or device, and one of them cannot
receive his share. So that share becomes vacant. To whom
shall that share go? Shall it go to the legal heirs? The law
says it shall accrue to his co-heirs upon succession. Again,
this is pursuant to what we have discussed before: that in
the order of priority,
1.
Institution
2.
Substitution
3.
Representation
104
4.
Accretion
5.
Intestacy.
If theres a way that the share of the heir who cannot receive
can go to the others, then we should avail of that first before
we go to legal succession. But of course, before we can give
to the other co-heirs, all the requisites for accretion should
be present. There are requisites.
Based on Article 1015, we have:
1. Unity of object.
When we say unity of object, theres only one
inheritance, legacy or device.
I hereby give to A and B this house. So theres
one inheritance. There can be accretion in that case
because there is unity of object, as long as all the
other requisites are present.
2. Plurality of subjects.
Meaning, there should be at least two or more heirs
called to the same inheritance, legacy or device.
Two or more.
3. There is a vacant portion, of course.
Meaning, we have one heir who is called to the
succession cannot receive maybe because of
repudiation, incapacity, or predeceased. So there is
a vacant portion. Lets go to Article 1016.
Art. 1016. In order that the right of accretion may take
place in a testamentary succession, it shall be necessary:
(1) That two or more persons be called to the same
inheritance, or to the same portion thereof, pro
indiviso; and
(2) That one of the persons thus called die before the
testator, or renounce the inheritance, or be
incapacitated to receive it. (928a)
Article 1016 merely reflects what we discussed before. The
requisites, there should be, aside from unity of object, there
should be plurality of subject and a vacant portion, which is
the one mentioned in 1016.
Now we go to 1017. How do we know if there is still unity of
object? For example, theres no problem if the testator says,
I hereby give to A and B this house. So we have the house.
What if he says, I hereby give to A of the house, to be,
of the house. Is there unity? There is still unity of object
in that case. That is in Article 1017.
Art. 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)
The law says there is still unity of object even if the words
to each, to A, to B. Why? Because here, there is no
designation of specific shares. You cannot say that if you
give to A, A is already the exclusive owner of a specific
portion of the property. If you say to A, that means for
every inch, for every square meter of the property, for every
unit of measurement of the property. A is owner. He
cannot specifically point out that this is my share. That is
why accretion is still possible.
If for example there is already a marking. I hereby give to A
my cash in Metrobank, to B my cash in BPI, to C my cash in
BDO. So here the money is already earmarked. In case A
dies, shall the money allocated to A accrue to B and C? No.

Because there is no unity of object. They are not called to
the same inheritance or legacy. Even if they are called to the
same kind of property, cash, but the property, the money
has already been earmarked.
Or, for example, I hereby give to A and B this house. The
first floor is for A, the second floor is for B. Would accretion
be possible in that case if for example A predeceases the
testator? No, because there is earmarking. First floor to A,
second floor to B. A can say definitely, this is my share, the
first floor.
Or To A, the southern part of the property; to B, the
northern part of the property. Can there be accretion there
in case A predeceases the testator? No, because again, there
is earmarking. There is already designation to A, the
southern part, to B the northern portion.
Art. 1018. In legal succession the share of the person who
repudiates the inheritance shall always accrue to his coheirs. (981)
Here, were talking about legal succession. In case of
repudiation, the law says there shall be accretion. So
repudiation in legal succession can give rise to accretion.
Remember, because there are some vacancies which cannot
give rise to accretion. We will just summarize that.
Art. 1019. The heirs to whom the portion goes by the right
of accretion take it in the same proportion that they
inherit. (n)
Theres no problem if there are only two heirs. So if A
repudiates for example his share, then his share shall go to
B. So no computation needed. What if there are three heirs?
A
B
C
And for example, C repudiates. Therefore he cannot receive
his share. How much should be the shares of each?
- 600,000
- 300,000
So the vacant portion here is the share of C, which is
300,000. BY accretion, the share of C will go to A and B. How
much shall each of A and B receive? Do we give to A and
to B? No, because kulangsiya. It will not amount to 1. So
how do we divide? In the same portion they inherit. So we
base it here.
600,000+300,000 = 900,000
600,000/900,000 or 2/3 of 900,000 shall go to A. That would
be 200,000.
300,000/900,000 or 1/3 of 900,000, goes to B. Or 100,000.
So in the same portion that they inherit.
Art. 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)
They shall succeed to the same rights and obligations
imposed on the heir who could not or who did not receive his
share. Thats the general rule. Unless of course the testator
would say na if there is accretion, then the heirs to whom
the shares will accrue are not bound by the obligation
imposed by the heir to whom the share is originally given.
105
Art. 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.
2.
Incapacity? Yes.
3.
Repudiation? According to Article 1018, the share always

accrues to the others, so yes. Accretion is possible.
4.
Non-fulfillment of a suspensive condition? Like A, B and

C are instituted as heirs to this property, specific. But As
institution is subject to the condition that he will pass
the bar exam. He did not pass the bar exam, so he will
not receive his share. To whom shall the share go? The
other heirs by accretion.
5.
And lastly failure to identify one particular heir. So A, B

and C have been designated as heirs, but upon looking
for B, you dont know who is B. Theres confusion, and
even after suing all the rules in interpretation and
construction, thus the rules on latent ambiguity, patent
ambiguity, extrinsic evidence, wa gyud ka nakabalo
kinsa na si B. So we cannot give, to whom shall that
share go? If accretion will be possible then to the other
heirs. If not, last would be intestacy.
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)
If testamentary succession, Article 1021 says, the right of
accretion takes place only where, in what portion? In the
free portion. Remember, in testamentary succession, we do
not have accretion in the legitime. So what if one of them
cannot receive? Like three children and one of them cannot
receive either by repudiation, predecease or incapacity. His
share, to whom shall his share go?
We have again A, B and C, all legitimate children. As to their
legitime, for example if As share become vacant, his share
will also go to B and C, just like in accretion. But it is not
accretion. His share shall go to B and C in their own right.
Technically, the same effect, but technically also, not termed
as accretion but in their own right.
So if it is the free portion, the law says accretion would be
possible. The same effect, but its called accretion.
Art. 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)
When the right of accretion does not take place, then the
vacant portion shall go to the other heirs. This is just an
illustration again of what we have discussed before, the
order of priority. ISRAI.
Diba we discussed that in testamentary succession, there is
no accretion in the legitime. Accretion can only happen in the

free portion. But for example, even despite the fact that
there is a vacant portionwere talking of the free portion
accretion would still not be possible because assuming not all
the requisites are present, then to whom shall the share go?
The law says now to the legal heirs by intestacy, which is the
last resort. The legal heirs of the testator. ISRAI.
Remember, in testamentary succession, as we have just
discussed, accretion is not possible in the legitime, it is only
in the free portion. We already discussed the right of
representation before. In testamentary succession also,
please remember, the right of representation applies only to
the legitime. It does not apply to the free portion. So baliktad
sila sa accretion no? Accretion sa free portion lang, walay
labot ang legitime. Representation legitime lang, walay labot
sa free portion.
Art. 1023. Accretion shall also take place among devisees,
legatees and usufructuaries under the same conditions
established for heirs. (987a)
The same concept would apply in legacy, device or
inheritance. There is no distinction. The same principles that
we apply, that we have discussed, apply regardless of
whether or not it is an inheritance, a legacy or a devise. As
long as all the requisites are present. Unity of object,
plurality of subjects and vacant portion.
So in summary, as to the kind of vacancy, in testamentary
succession, when can accretion happen? What kind of
vacancy can give rise to accretion?
1.
Predeceased? Yes. Again, we are talking only of the free

portion. Predeceased, yes.
In legal succession, what kind of vacancy shall give rise to

accretion? Where is accretion possible?
First, if it is repudiation, if the vacancy is by repudiation, the
vacant share always accrues to the other heirs. So accretion
is possible.
Second would be incapacity, if one of the heirs cannot
receive because he is incapacitated, his share shall go to the
others by accretion. But this is subject to the right of
representation. Because, in legal succession, the right of
representation covers the entire share, unlike in
testamentary succession, the right of representation again
covers only the legitime, so we cannotthere is no way in
testamentary succession that pwede magabot ang accretion
ug representation. Again, ang representation sa legitime,
free portion lang sa accretion. But in legal succession, there
is a possibility na dili pa pwede ang accretion because
representation would be possible.
Like again,
predeceased
others. But if
accrue to the
if incapacity, if one of the heirs like A

the decedent, his share can accrue to the
he has a representative, then his share will not
others but will go to the representative.
How about if predeceased? Take note, in legal succession, in

case of predeceased, there will be no accretion because the
shares of the heirs who predeceased the testator, if they
have no representative, will go to the others in their own
right. So although again the effect would be the same as in
accretion, like if A dies ahead of the testator, so his share
becomes vacant, his share will go to B and C, but not by
accretion but in their own right. That would be for accretion.
SECTION 2. Capacity to Succeed by Will of by
Intestacy
We now go to incapacity. We have Article 1024.
The general rule in succession.
Art. 1024. Persons not incapacitated by law may succeed by
will or ab intestato.
The provisions relating to incapacity by will are equally
applicable to intestate succession. (744, 914)
Here the rules on incapacity are also applicable both to
testamentary succession and legal succession. When you say
incapacity, that means the heir is disqualified to receive from
the decedent. There is no need to disinherit him. By law, he
is disqualified. Hes excluded.
The general rule however is capacity. That is why Article
1024 says persons not incapacitated by law may succeed by
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will or ab intestato. As long as you are not incapacitated or
disqualified by law, you have the capacity to succeed. Now
when you say capacity to succeed, who are capacitated,
what kinds of persons have capacity to succeed? Natural
persons, juridical persons? We have to make a distinction.
In testamentary succession, of course natural persons can

succeed, how about juridical persons? Yes, as long as they
are allowed by their charter to succeed.
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)
So again, as I mentioned, in testamentary successions, there
is a will. Juridical persons may be instituted or designated. So
under Article 1026, it can be done; it can be given to the
state, promises, etc. Corporations as long as they are
allowed by the law or the charter of their creation.
How about in legal succession? Yes, natural persons can

succeed. Juridical persons cannot succeed. They are not
legal heirs, except of course the state. The state is a legal
heir, as we have discussed before. Of course, for natural
persons, what is required, we discussed already under
Articles 40 and 41.
Before we go to 1027Article 1027 starts the provisions

relating to incapacity to succeed. There are actually two
kinds of incapacity. We have:
For a natural person to become capacitated, he should attain

juridical capacity, legal personality. So we have to distinguish
that from capacity to act. Diba, capacity to act is the capacity
to act with legal effects, like you cannot enter into a contract
if you are not yet 18 years old. You need to be of majority;
you need to be emancipated before you can have capacity to
act. But, do you have juridical capacity even before youre
18? Yes. You already have juridical capacity. You have the
capacity to be the subject of legal relations. That is why even
a one-year-old child can receive a relation or can be an heir.
So when you say incapacity, you are disqualified to succeed.

Absolute incapacity meaning the person cannot inherit from
anybody under any circumstance. So wala gyud siyay lusot.
Bisan unsa dili gyud siya makadawat. Like for example we
have Article 1026.
How about if the baby or the fetus is still in the womb? Can
that fetus receive a donation? Can it be an heir, a legatee or
devisee? Again, as we have discussed, we need to comply
with the conditions in Articles 40 and 41. Again, what are
those conditions?
So if their charter of creation would absolutely prohibit them

from succeeding, then theres absolute incapacity.
If the fetus had an intrauterine life of less than 7 months, he

has to live for at least 24 hours after complete delivery.
If the fetus had an intrauterine life of at least 7 months, as
long as he is born alive, it doesnt matter if he dies one
minute after as long as he is born alive.
Thats Article 1025.
Art. 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)
So again, at least there is juridical capacity. And the heir
must be living, or at least conceived at the time of death of
the decedent. As discussed in the case of
Rigor vs. Rigor
That case where the testator said his nearest male relative
who would enter priesthood. Kinsa man na sila? Pwede ba
na at the time of death niya nawala pa ang relative? And
then later on naa nay magpari sa ilaha? The Supreme Court
said at least that relative should be living or at least
conceived at the time of death of the testator. It cannot be
just any relative who would study in the future even if at the
time of death he was not yet born. Because it was a
condition that for one to inherit that he must be living or at
least conceived at the time when the succession opens.
Art. 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.
1.
Absolute incapacity
2.
Relative incapacity
In 1026 diba it says: 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.
Or, another would be Article 1027 no. 6: individuals or

associations not prohibited by law to inherit.
And no. 3, those who lack juridical personality like the
abortive infants. They cannot inherit under any
circumstances.
Relative incapacity here, the person cannot inherit but
only from certain persons or certain properties but he can
inherit from other persons and he can inherit other
properties. So relative incapacity.
Under the New Civil Code, we have 3 classes of relative
incapacity:
Article 1027, 1-5 thats incapacity by reason of

possible undue influence
Then we have Article 1028, incapacity by reason of

public policy and morality
And 1032, incapacity by reason of unworthiness.

These are the classes of relative incapacity.
Art. 1027. The following are incapable of succeeding:

In Article 1027, these persons are disqualified by reason of
possible undue influence. Take note under this Article the
presumption that there is undue influence is actually a
conclusive presumption. When we say conclusive
presumption, you cannot present evidence to the contrary
unlike when it is a rebuttable or disputable presumption. So
you cannot present na, actually wala gud ni gisulsulan or
gihadlok sa pari kadtong tigulang na manghatag sa

simbahan. Voluntary gyud to! You cannot present evidence
to that. It is conclusively presumed that there was undue
influence.
(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;
Kita ninyo sa law? Even our priest or congress do not really

believe na tanang pari buotan. Nakabutang gani diri because
107
of possible undue influence and conclusively presumed pa
gyud. What is the reason? To safeguard the rights of the
heirs who may be defrauded by the sinisterso evil gyud ha,
sinisterand undue influence which may be exercised by
some priest and minister over a dying man.
Here we contemplate a situation na nay himalatyon na
kaayo, dying. Of course when youre dying, your concern is
the afterlife. Diba, unsaon man na nimo imong billions, di
man na nimo madala. So because of that, you really want to
go to heaven. And when you confess, for example after you
confess, siguro niana si Father, Siguro kung magdonate ka
sa imuhang kayamanan mabawas-bawasan imong mga sala

so mas mugaan gaan imong mga sala. Murag makaadto kag
heaven. And because of that, wala may mawala sa iyaha,
naghatag siya, so that will be the possible scenario. That is
why here, take note, the will must be made during the last
illness of the testator.
What is that last illness? It is the illness which is proximate to

the death of the testator. It might be the illness of which the
testator died. Or again, the illness which was existing at the
time of his death, although he did not die of that illness. Naa
siyay cancer, so naa siyay taning. Mga one week nalang ka.
So nagkumpisal siya. Gihatag niya iyang properties. Pero
naligsan siya pagpauli. So wala siya namatay sa cancer.
Namatay siya sa hit-and-run. But still that is his last illness.
And as to the gravity of the illness, there must be a grave
possibility of death. Like again, kanang mga terminal na
cases, so kung gisipon lang siyadiba illness man pud na
dibaand he died during that time, it was the illness na
existing at the time of his death, no it will not apply. We will
not think of dying when we have sipon unless ingana nalang
gyud ka kapraning no.
And then the will must be made after the confession.

Nagconfess ka because it is again presumed that the undue
influence was executed during the confession. If the will was
made before the confession, then this disqualification will not
set in. After the confession. So the priest must hear the
confession. Kung nagpakalawat lang siya, its not applicable.
That is in paragraph one.
(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;
How about the relatives of the priest? Yes, the law says the
relatives, thats in number two, within the fourth degree. It
does not even say consanguinity, so it would cover affinity
within the fourth degree, his church, order, chapter etc.
(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;
Number three, the guardian. A person can be constituted as

a guardian over the property, a guardian over the person, we
also have a guardian both over the property and the person.
All of these kinds of guardians are covered under this Article.
The prohibition lies when the testamentary disposition is
given or made during the subsistence of the guardianship.
When do you say that the guardianship still subsists? When
the guardian has rendered a final account and the account
has not yet been approve by the court. Because when you
are a guardian, you are required by the court to render an
accounting. So kung magterminate naka ug guardianship,
magsubmi tpud ka ug final accounting. To say nga wala gyud

nimo gihilabtan or giwaldas ang property sa ward. Before
that is approved naa lang gihapoy relationship of ward and
guardian. Kung maapprove na siya sa court, thats when the
guardianship is terminated. So during the time nawala pa
naterminate ang guardianship, any disposition made in favor
of the guardian by the ward is not valid. The guardian is
disqualified by reason of possible undue influence.
Now take note, unlike the priest, sa priest diba the

prohibition extends to his relatives within the fourth degree,
in a guardian, its not the same. The law says if the guardian
is the ascendant, descendant, brother, sister or spouse of the
ward, valid siya. The guardian is qualified to accept or
receive the inheritance, legacy or device. So dili mag-apply
ang disqualification because it is presumed na because of his
relationship, ang reason for the grant is not because of the
undue influence but love, affection. Pero again lahi gihapon
kay kung pari ka. Basta dili the same ang qualifications.
Going back to the priest, diba as we said even if the priest is
the son of the testator, the disqualification is still applicable.
But we know that the son is entitled to his legitime. Is the
son disqualified to receive his legitime because he heard the
last confession of the testator during his last illness? The
disqualification here would cover only the free portion.
Because the legitime is mandated by law. We cannot say
that the testator gave this legitime because he was unduly
influenced by the priest, no, because hes the son and he is
mandated by law. Only to the portion over and above the
legitime ang disqualification.
(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;
Number four, any attesting witness. We already discussed
this before in witnesses diba. If a person is a witness at the
same time an heir, legatee or devisee, is the will valid? Yes,
the will is valid but there is a consequence. The person who
is a witness is disqualified to receive the legacy, inheritance
or device. Why? To prevent conflict of interest. Because if
you are a witness, and you are also an heir, naturally you
would really testify in favor of the will, otherwise you will not
really receive your inheritance.
So disqualified by reason of conflict of interest. But again, if
this witness who is also an heir, is also a compulsory heir, is
he disqualified to receive his inheritance? As we have
discussed, the disqualification also would cover only the free
portion. The legitime would still be given.
But we also discussed in witnesses that if there are four or
more witnessesso more than threeif you are an heir at
the same time a witness, and there are four of you, you will
receive your inheritance, legacy or device. Why? Because this
time, your presence as a witness is no longer needed for the
validity of the will, unlike if there are only three witnesses.
Youre one of them, and youre also an heir, your presence
as a witness is really necessary for the validity of the will.
And to prevent conflict of interest, again, you will not receive
your inheritance.
(5) Any physician, surgeon, nurse, health officer or
druggist who took care of the testator during his
last illness;
Number five, any physician, surgeon, nurse, druggist, health
officer who took care of the testator during his last illness.
These persons are also disqualified. Doctor, surgeon, nurse,
druggist, mura siyag pharmacist, dili ni siya pusher.
Lahipudnasiyana level. Who took care. Remember the word
took care, which contemplates a continuous care. Its not
just an isolated check-up where muadto ka didto, tagaon ka
sa doctor, its not disqualified, because it will not be
considered as taking care of. It should be continuous ang
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pagtake care. Again, the same principle if the doctor, nurse,
etc. is also a compulsory heir. His disqualification will not
extend to the legitime, only to the portion over and above
the legitime.
(6) Individuals, associations and corporations not
permitted by law to inherit. (745, 752, 753, 754a)
Number six, of course, as we ae discussed, if the individual
or association has not been permitted by law then it cannot
inherit.
Remember also, even if were talking of principles applicable
to both testamentary and legal succession, actually Article
1027 is applicable only to testamentary succession. This will
not apply to legal succession. Because in the first place in
legal succession, you are allowed to inherit because of the
law not because of the will of the testator. So bisan unsa pa
nimo pag influence sa testator, kung wala siyay will, ang law
ang magbuot kung matagaan baka or dili. Thats Article
1027.
Art. 1028. The prohibitions mentioned in article 739,
concerning donations inter vivos shall apply to testamentary
provisions. (n)
Art. 739. The following donations shall be void:

(1) Those made between persons who were guilty of
adultery or concubinage at the time of the donation;
(2) Those made between persons found guilty of the same
criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife, descedants
and ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of
nullity may be brought by the spouse of the donor or donee;
and the guilt of the donor and donee may be proved by
preponderance of evidence in the same action. (n)
These are the grounds for incapacity by reason of public
policy and morality. So here, when applied to succession,
Article 739, these would be the prohibitions, the
disqualifications. If the testator and recipient would be guilty
of adultery and concubinage, so the recipient is disqualified
to inherit.
So number two, when the testator and the recipient are
guilty of the same criminal offense, in consideration thereof.
The testator ordered X to kill his wife for example, and as a
price or reward he instituted X as heir. So X is disqualified
because thats in consideration of the same criminal offense.
Theyre both guilty of murder or parricide.
Number 3, those made by a testator to a public officer, or his
wife, descendant and ascendant by reason of his office.
Here, to prevent bribery or extortion, you cannot institute a
public officer by reason of his office. Take note of the caveat,
by reason of his office. Gitagaan nimo, gipamanahan nimo si
judge kay gipadaog ka niya sa kaso. So kana siya
disqualified. Pero kung gipamanahan nimo si judge kay best
friend nimo siya since kinder, or relative nimo siya, distant,
whatever, it cannot be presumed na by reason of his office
because of the relationship or affection.
Art. 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.

Here, the testator made some dispositions for prayers and
pious works for the benefit of his soul. Para sure gyud siya
no namalangit siya, mag ibilin gyud siyag kwarta para iampo

sa iyaha. Nagbilinkag 1 milllion para magampokasaakoa.
Institution of the soul, this is usually called the institution of

the soul. Asa man ni siya maadto? Kinsa maggunit sa
kwarta? The law says shall go to the church or
denomination to which the testator may belong, to be used
for prayers and pious works; and that the half is for the state
for the purposes mentioned in Article 1033, charitable
institutions, so didto siya mahatag. That is disposition of the
property. Kung halimbawa the disposition is in general terms,
ingon lang siya for prayers and pious works. That is the
disposition.
Art. 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)
In 1030 we also have the institution of the poor. A
disposition in favor of the poor. Take note, in general. Wala
nakadesignate kung kinsa ni na mga persons or asaninamga
poor. Kinsa man ning mga poor? The law has given us the
standards, otherwise kung wala ni siya, daghan kayo
magclaim, poor ko, poor ko, apil ko diha. Kinsa man ning
poor?
The law says the poor living in the domicile of the testator at
the time of his death. So kungtagadidtoka, possible. Unless
there is a different provision. And then kinsa man
magingonna kana sila poor gyud? So here the law says who
are these persons who shall decide. Just take note of article
1030.
So we have article 1029, the institution of the soul, that is
not a natural person diba? Institution of the poor, thats also
not a natural person, thats a class.
Art. 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)
For example, ang imuhang mistress si A. Of course you know
na you are disqualified to give and A is also disqualified to
receive from you. So gicourse through nimo sa inyuhang
common friend, with the instruction nasi common friend
ihatag pud niya kay mistress. That disposition in favor of the
common friend is also void; otherwise it would also be easy
to circumvent the disqualifications provided for by law. Thats
under Article 1031.
Art. 1032. The following are incapable of succeeding by
reason of unworthiness:
(1) Parents who have abandoned their children or
109
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)
We have incapacity by reason of unworthiness, that is Article
1032. Here the disqualified heir has committed an offense
against the decedent or the testator. This applies to legal
succession as well as testamentary succession. The law
deems the heir to be unworthy and therefore the heir is
disqualified.
You have to take note that some of the grounds for
unworthiness or incapacity by reason of unworthiness are
also grounds for disinheritance. You can say that these
grounds which are common, some of the grounds, even if
the heir was not disinherited, still he is disqualified. So there
is actually no need to disinherit the heir who committed
some of the grounds which are also the same grounds for
disinheritance, because by operation of law, they are already
disqualified.
Like number one, that is a ground for disinheritance which
we already discussed. So even without disinheriting actually
the heir, he is disqualified by law.
Number two, the same thing. Any person who has been
convicted of an attempt against the life of the testator, his or
her spouse, ascendants or descendants. You have to
remember all these common grounds, because if you only
know the grounds for disinheritance, and then you have a
client who consults you, Actually attorney, gipagtangkaan
kog patay sa akong anak, na convict siya. Diba ground siya
for disinheritance? But kadtong client namatay nalang wala
niya nadisinherit ang heir and then ang mga anak niya uban,
can you say na, Ay sorry, walataymabuhat kay wala man
gidisinherit sa inyong papa ang inyong igsoon, so
makainherit gihapon siya.
Maybe wala namo ni abot sa disqualifications nagstudy, didto

lang mo niabot sa disinheritance. So, kulang. You have to
know.
Here, remember the common grounds.
Number two, convicted of an attempt against the life of the
testator, his or her spouse, descendants or ascendants. So
what if for example the heir attempted to kill an ascendant of
the testator? Diba convicted of an attempt not only against

the life of the testator; he has the spouse, descendant or
ascendant. So we now have na heir, and then the testator
died. After sa death ni testator, kadtong iyang isa ka heir,
iyahang gipatay or iyahang gi attempt ug patay ang papa ni
testator, and he was convicted of that crime. Is that heir
disqualified under number two of 1032? Because he has
been convicted of an attempt against the life of the testators
ascendant. Is he disqualified?
Again the basic principle of succession diba, succession
opens at the moment of death. So your qualification we
discussed before, the intrinsic validity of the will for example
shall be governed by the law in force at the time of death.
Thats the same thing with capacity to succeed which we will
discuss under Article 1039.
Aside from the fact na its governed by national law from the
viewpoint of time, from the viewpoint of place of country,
from the viewpoint of time its governed by the law in force
at the time of death. So thats why as an heir also, your
qualification to succeed is measured by your qualifications at
that time when you are about to receive the properties.
Thats also the time of death. So when at the time of death
wala pa kay offense na nabuhat, then you are qualified.
When you committed an offense after the death that is no
longer covered. Because after the death, before there was
already transmission. The offense should happen before
there is to be transfer of property, before death.
Number three, the same ground for disinheritance.
Number four, the law says an heir of full age. Take note
when you say full age, we are not only referring to the age
of majority. Majority is 18. When you say full age, the law
says its 21. So you should be 21 at least and having
knowledge of the violent death of the testator. The violent
death contemplated here is one caused by a crime. And
should fail to report to the officer of the law within a month.
But take note the last paragraph says, this prohibition shall
not apply wherein according to law, theres no obligation to
make an accusation. There should be a law which obliges or
compels to accuse. When you say to make an accusation,
whether you report, you file a case. Under our present state
of laws wala pa tay law which compels anyone to make an
accusation or to file cases. Because of that, number four is
not yet applicable, wala pa siya maaply in our jurisdiction.
Number five, any person convicted of adultery or
concubinage with the spouse of the testator. Take note ha,
the disqualified person is the other guy or the other woman
who is convicted of adultery or concubinage with the spouse
of the testator, not the spouse himself or herself but the
other person.
How about the spouse? For example imong asawa nay kabit,
niya ang iyang kabit kay heir pud diay nimo, so he is
disqualified if there is conviction. How about the spouse? Is
the spouse disqualified? Theres no disqualification
mentioned under the law. That can be a ground to disinherit
the spouse, because that is a cause for legal separation. But
kung wala nimo gidisinherit, the spouse is not disqualified
unless you file also a case for legal separation and the
spouse is found guilty. By operation of law, that spouse is
disqualified. But without a degree of legal separation, and
without disinheriting that spouse, the spouse is qualified. She
is not disqualified.
Number six, seven and eight. Vitiated the consent of the
testator when he made the will, because by fraud, violence,
intimidation, undue influence, caused the testator to make a
will or change one already made or prevents him from
revoking a will or etc. these are the persons who are
disqualified by law to inherit from the testator or the
decedent, both in legal and testamentary succession.
110
Art. 1033. The cause 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.
Article 1033 talks about condonation. We have express
condonation and implied condonation. The law says the
causes of unworthiness shall be without effect if the testator
had knowledge thereof at the time he made the will, or if he
having known them subsequently, he should condone them
in writing.
Example:
The testator already knew about the ground, lets just say
this person has committed an act which is a ground for
incapacity by reason of unworthiness but despite knowing
that the testator made a will and in that will he still instituted
or designated that person as an heir. What is the meaning of
that? Meaning he has already condoned the offense. There
has to be a designation or institution of that person as an
heir for there to be an implied condonation. Once he makes
that will, then the person can already receive. We cannot
anymore allege later on that he was disqualified because
against there was already implied condonation. Or he
expressly condoned the act in writing having known of them
already.
Example:
The testator already made a will. He gave his estate to A,B,
C and D. And then he committed an act which is a round for
disqualification, by reason of unworthiness. So D by
operation of law is now disqualified. What if the testator
would really want D to receive the share given to him, what
should he do? He should condone the act in writing. So
magsulat siya I forgive D even if he attempted against my
life, he already suffered for it for 10 years in prison so I
forgive him. So that now erases the disqualification. That is
an express condonation.
If you remember in disinheritance when there is already
reconciliation between the heir and the testator, the testator
can no longer disinherit the heir, or if he already disinherited
the heir, that disinheritance is already erased. Wala na siyay
effect. Reconciliation presuppose a mutual restitution or
resumption of feelings and relationship between the testator
and disinherited heir. Kung pardon lang, dilli siya sufficient in
disinheritance. But in capacity, dili pud pwede na
reconciliation lang. There has to be condonation in writing.
That is the law. What if the ground for incapacity is also
made as a ground for disinheritance?
Again attempt against the life of the testator is a ground for
disinheritance. Its also a ground for incapacity. So even if
you did not disinherit your son who attempted against your
life, by operation of law he is unworthy and therefore
disqualified. So suko man gyud kayo ka, bisan pa kabalo
naka na disqualified na siya under the law, nagbuhat gyud
kag will expressly disinheriting that son. Gidisinherit gyud
nimo siya. And then subsequently nagreconcile mo duha.
Would that reconciliation be sufficient to restore the son to
his capacity? Or based on what we just discussed, there has
to be a condonation in writing kay subsequent naman siya,
kay naa namay will. Should there be condonation in writing?
The rule here is that if a ground for incapacity by reason of
unworthiness is also made a ground for disinheritance, mere
reconciliation would be sufficient because by disinheriting the
child or the heir, you are not covered by the law on
disinheritance. So if there is reconciliation, then restored na
ang heir to his capacity. No need to condone the act in
writing.
disinheritance will govern. There has to be reconciliation, not

just a mere condonation in writing.
OCTOBER 20, 2015 (GGarcia)
Art. 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)
GR: As we already mentioned, transmission happens upon
death so the qualification or the capacity of the heir shall be
governed or measured based on its existence or nonexistence at the time of death of the decedent. But again,
just take note, it is necessary there is a final judgment in
cases falling under 2, 3, or 5 of Article 1032.
If the institution is subject to condition, we also have to
consider the time of fulfillment of the condition in order to
determine whether or not the heir is capacitated. Because, if
the institution is conditional, it shall not be effective also until
the condition is fulfilled. So those are the 2 points of time to
remember if the institution is subject to a condition.
(1) Time of fulfillment of the condition, and of course;
(2) Time of the testators death.
Art. 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.
A disqualified heir can still be represented. But again, the
disqualified heir cannot administer the property of his child if
that child represents him because of his incapacity. Its the
same as what weve discussed in disinheritance.
Art. 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)
What happens if prior to the disqualification or the
declaration of disqualification (since incapacity is not
automatic, there has to be a declaration which may be
requested by the affected parties), he made some alienation
of the properties? As long as 3rd parties who deal with that
property is not aware of any defect in the title, he is
considered an innocent purchaser for value. So, the law says
it is valid as to 3rd persons who acted in good faith. If he has
notice or knowledge of the defect in the title who sold, then
he cannot avail of this provision. So if the 3rd party is in good
faith, innocent purchaser for value, the remedy of the coheirs is against the heir who sold the property.
Art. 1037. The unworthy heir who is excluded from the
succession has a right to demand indemnity or any expenses
incurred in the preservation of the hereditary property, and
to enforce such credits as he may have against the estate.
(n)
What if gicondone lang nimo ang act in writing? Walay

reconciliation. The same thing. As I said the law on
111
Expenses for the preservation. These expenses will really
have to be incurred, whether they are incurred by the
disqualified heir or the estate, these have to be incurred. The
disqualified heir, even if he is disqualified, has the right for
the reimbursement or indemnification for these expenses.
Art. 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 it 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)
Just take not of the obligations of the disqualified heir under
1038.
Art. 1039. Capacity to succeed is governed by the law of
the nation of the decedent. (n)
Remember 1039 in conjunction with Article 16 of the Civil
Code. Under Article 16, the order of succession, the amount
of successional rights, the intrinsic validity of the
testamentary dispositions, are governed by the national law
of the decedent. Number four would be capacity to succeed
under 1039. This is a usual bar exam question. So remember
the 4 matters governed by the national law of the decedent:
(take note: not the heir, but the decedent)
1.
Order of succession
2.
The amount of successional rights
3.
Intrinsic validity of testamentary dispositions
4.
Capacity to succeed
Art. 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)
Action for declaration of incapacity and action for recovery of
inheritance.
We have to file these within 5 years from the time the
disqualified heir took possession of the property because
even if there is an heir who is disqualified and he is given
something in the will, but then again after the will was
executed, he committed an offense against the decedent, so
he is disqualified, so there is no need to disinherit him. There
is also no pardon by the testator. But as long as he does not
take possession of the property, then the right to bring an
action for the declaration of his disqualification will not
commence to run, there is no adverse possession. It is
supposed to be from the time he took adverse possession.
Only interested parties can bring an action. So, one who will
be directly benefited by the avails of the suit. It can be the
heirs, other heirs, or creditors.
SECTION 3. Acceptance and

Repudiation of the Inheritance
Like in Donations, there is a need of acceptance in
succession. No one is compelled to accept the generosity of
others. He can refuse. You can also repudiate. So what are
the law governing acceptance and repudiation.
Art. 1041. The acceptance or repudiation of the inheritance
is an act which is purely voluntary and free.
Take note, you cannot force to accept. If you are forced to

repudiate, such repudiation is not valid. So, repudiation or
acceptance should be voluntary and free.
Art. 1042. The effects of the acceptance or repudiation shall
always retroact to the moment of the death of the decedent.
There is a retroactive effect. Even if you have accepted on
month after the death of the decedent, you have deemed to
accept it at the time of the death of the decedent. Any
increase of income from the property before your acceptance
will also to you, because your right will go back to the time
of the death of the decedent.
How about repudiation? It also retroacts to the moment of
death of decedent. So the heir who repudiates is never
deemed to have possessed the inheritance. Therefore, if it is
a real repudiation, he should return all properties and effects
of the estate. It is because by virtue of the repudiation, he is
deemed to have never accepted.
Art. 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)
There are the REQUISITES BEFORE THE ACCEPTANCE
OR REPUDIATION WILL BE VALID. Of course, you
cannot repudiate without knowing the death of the decedent.
It is different if you know of his death because if he is dead
already, you right is vested, you are sure to receive. If he did
not die yet or you did not know, you can repudiate. But it is
not a well-informed repudiation. This is not valid. You have
nothing to lose because you do not know that the person is
dead. He should also know his right to the inheritance. You
must know that you have bee instituted. So, the repudiation
prior to the knowledge that you have been instituted is not
valid.
1.
Knowledge of the death of the testator, and
2.
Knowledge of the right to the inheritance.
Art. 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)
General requirement other than knowing the death of the
decedent, knowing ones right to the inheritance, of course,
when you accept or repudiate, you have the free disposal of
the property. In short, you must have a capacity to act. You
must be of age, and must not be suffering from any
restriction in the capacity to act. You might not be minor or
suffering mental incapacity, but you are suffering the
incapacity under civil interdiction, you cannot accept or
repudiate. Take note: acceptance or repudiation is a disposal
of a property. If you are incapacitated by civil interdiction,
you can only dispose of your property mortis causa
Take note that in the succeeding articles that we will discuss,
who are the heirs who can accept on their behalf and who
can repudiate on their behalf.
112
1.
2.
Minors As mentioned, one must have a free disposal of

the property. Remember, for one to be capacitated to
inherit, the only requirement that he need is juridical or
civil personality, you must be born alive. But as to
repudiation or acceptance of that inheritance, we need
capacity to act. For minors, they may:
a.
ACCEPT Thru their parents or guardians.
b.
REPUDIATE Thru their parents, or guardians,

plus
court
authorization
or
judicial
authorization.
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.
The poor, who can accept or repudiate?

a.
ACCEPT person or persons designated by the

testator to determine the beneficiaries, or in
default, the order made in 1030.
b.
REPUDIATE nothing is mentioned. Meaning,

an institution for the poor can only be accepted
and cannot be repudiated. Obviously, because
theyre poor. Poor na gani ka (like Von Lao),
Art. 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)
The heirs here are the corporations, associations,
institutions and entities qualified to acquire property, so
who may accept or repudiate?
a.
ACCEPT their lawful representatives. If it is a

corporation, there must be a board resolution
authorizing the person or rep to accept.
b.
REPUDIATE The lawful representative but

with court approval.
Art. 1046. Public official establishments can neither accept

nor repudiate an inheritance without the approval of the
government. (994)
4.
Public official establishments may accept or repudiate

with the approval of the government.
Art. 1047. A married woman of age may repudiate an

inheritance without the consent of her husband. (995a)
5.
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.
mag repudiate pa judka!??? Jomvisyosa.
3.
Art. 1049. Acceptance may be express or tacit.
Married woman she may accept or repudiate on

her own without the consent of the husband. The
husband may also accept or repudiate, there is no
need to write it here because their right is always
recognized.
Art. 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)
6.
Deaf-Mute who can read and write may accept or

repudiate personally or thru an agent.
7.
Deaf-Mute who cannot read or write.

a.
ACCEPTANCE - must be thru a guardian as they

do not have juridical personality.
b.
REPUDIATION must be thru their guardian

with court approval.
We have 2 kinds of acceptance:

1.
Express Acceptance in a public or private document.

Public document that is one acknowledged before a
notary public. Private document, one that is
handwritten, computerized, signed by the person who
accepted.
2.
Tacit Acceptance It results from acts by which the

intention to accept is necessarily implied or which one
would not do except in his capacity as an heir. One
which is inconsistent with repudiation. For example,
there is an inheritance given in your favor, and then,
you executed a deed of donation without expressly
saying you accepted the property, it implies that you
accepted because how can you donate if you are not the
owner.
Acts of mere preservation or provisional administration do

not imply an acceptance of the inheritance. If for instance,
you just cleaned the property, that is not an act of
ownership, only act of preservation.
We also have the concept of PRESUMED ACCEPTANCE
under article 1057.
Art. 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)
Under this Article, there is no acceptance or repudiation
made by the heir, but by his action (or inaction), he is
deemed to have accepted the inheritance. In case of doubt,
it is to be presumed that it is accepted. It is usual to accept
that to reject.
Art. 1050. An inheritance is deemed accepted: xxx
The instances mentioned under 1050 are actually examples
of tacit acceptance. Okay, so an heir sells, donates or assigns
his right to a stranger, co-heir, or to any of them but not to
all. For example,
(1) If the heirs sells, donates, or assigns his right to a
stranger, or to his co-heirs, or to any of them;
Under no. 1, the heirs are A, B, C, and D. A sold or donated
his share to B, or to C, or to any of them but not to all. Here,
there is tacit acceptance because in real repudiation, you
cannot choose to whom shall you repudiate, it has to be
indiscriminately in favor of the other co-heirs. If you sell, you
assume that it is accepted. You cannot sell if youre not the
owner. There is acceptance and you cannot say there is
repudiation.
(2) If
the
heir
renounces
the
same,
even
though
113
gratuitously, for the benefit of one or more of his co-heirs;
Under no. 2, There is no sale or donation, you just repudiate
but your repudiation, you chose someone to whom you shall
repudiate, but to some of the co-heirs not to all. If you
repudiate to all, then there really is repudiation. If you
renounce, you do not have control to whom shall you
repudiated share will go and you will not receive anything in
exchange for it. In this case, you discriminately chose the
one who will receive your share, so there is tacit acceptance.
(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.
Under no. 3, here, he renounced in favor of all
indiscriminately for a price. You cannot repudiate and accept
something in return. When you repudiate, you deemed to
have never benefited at all from the estate, if you have
received a price, then you have benefited, so you receive
something, that is not repudiation.
The law says in the last sentence, 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.
This is repudiation in a real sense.
Art. 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.
Lets go to the mode or manner allowed by law for
repudiation. Based on 1051, there are only two ways:
1.
If it is made in a public or authentic document

It is written, and then acknowledged before a notary
public, so that is a public document. If it is authentic,
does not have to be notarized, it only needs to be
handwritten as long as it is genuine and signed by the
one who repudiated.
2.
By petition presented to the court having

jurisdiction over the testamentary or intestate
proceedings
Here, there is an heir, he is given an inheritance and he has

several creditors and he has no other means or properties to
pay the creditors. But here, the heir repudiates the
inheritance, so what is the remedy of the creditors? The law
mentions about prejudice of his own creditors. We have to
limit this to those creditors who cannot collect at all from the
creditor except on the property which he renounced, because
even if an heir renounces if he has other properties which
the creditors can go against, this article will not apply. So,
prejudiced creditors, they can accept. They may file a
petition before the court that they may accept in the name of
the debtor heir.
Here, the law say to an extent sufficient to cover the
amount of their credits. The inheritance is 1 million and the
debt is only 200K, the creditor may only accept only to the
extent of 200k. This is also a reflection of the other principle
in repudiation that rights may be waived provided that the
waiver is not contrary to morals, customs, public order or
policy or prejudicial to 3rd persons with a right recognized by
law.
LEVISTE VS. CA
In relation to 1052. I assigned this under probate,
personality to participate in probate proceedings. Again to
recall, what happened here was that Atty. Leviste was hired
by Del Rosario to be his lawyer in the petition for the probate
of the last will and testament, in that last will and testament,
Del Rosario was instituted as an heir, he was given a legacy,
so a voluntary heir. Their agreement with Atty. Leviste is
that, upon the successful probate of the will, Atty. Leviste
would be entitled to 35% as contingent fee. Now, in that
case, later on, Del Rosario terminated the services of Atty.
Leviste on the ground that there is a conflict of interest but
Atty. Leviste intervened in the case to protect his fees. Del
Rosario moved to withdraw the petition, but the court did not
allow that. The court denied and dismissed the probate on
the ground that the witnesses required by law were not
complied with (only 2 witnesses). Atty. Leviste appealed on
the disallowance of such will. The question is, can he appeal?
He anchored his appeal on his argument that he is a creditor,
that he can accept the inheritance in behalf of the heir. Is he
an interested party? SC said NO! He cannot rely under Art.
1052, their agreement was on a contingent basis. That
contingency did not occur; there is nothing for him to accept.
Second, the law presupposes that the creditor accepts in
behalf of an an heir. Here, Del Rosario was not an heir, his
inheritance was anchored on a will but the will was denied
probate because of the failure to comply with the requisites.
So, he did not become and heir.
This is not practical.

IMPERIAL VS. CA
An act of moving for execution of the compromise judgment
cannot be considered an act of renunciation of his legitime.
There is no such thing as implied, tacit, or presumed
repudiation. The law only allows repudiation made in a public
or authentic document or by petition presented to the court.
Remember this very basic principle.
Art. 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)
Art. 1053. If the heir should die without having accepted or

repudiated the inheritance his right shall be transmitted to
his heirs. (1006)
Self-explanatory.
Art. 1054. Should there be several heirs called to the
inheritance, some of them may accept and the others may
repudiate it. (1007a)
There is no obligation for all of them to accept. Some of
them may accept or reject. So here, in 1054, if there is
repudiation on the part of some, and acceptance on the part
of some, what happens to the share of the heir who
repudiates? So we follow the order, (ISRAI) institution,
substitution, representation, accretion, intestacy.
Art. 1055. If a person, who is called to the same inheritance
as an heir by will and ab intestato, repudiates the inheritance
114
in his capacity as a testamentary heir, he is understood to
have repudiated it in both capacities. x x x
Here, an heir is both a legal heir and a testamentary heir,
meaning given an inheritance by virtue of the will. So what is
the rule, take note if he repudiates the inheritance in his
capacity as a testamentary heir, he is understood to have
repudiated it in both capacity. Take note: called to the same
inheritance as an heir by will. If he repudiates his inheritance
as a testamentary heir, it carries with it the repudiation with
his inheritance as a legal heir. Why? Because in testamentary
succession, you institution is the express wish of the testator,
and knowing that you still want to repudiate, the law
presumes that you also repudiate your inheritance as a legal
heir because legal succession is not even the express desire
of the testator it is just a presumption of law. If you do not
accept the express wishes of the testator, with more reason
that you do not want to accept that which is presumed by
law. That is the logic.
x x x 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)
In the second paragraph, you repudiated as a legal heir
without the knowledge of being a testamentary heir, he may
still accept in his capacity as a testamentary heir because
here, when you repudiated he did not know about the
express wishes of the testator. It would have been different
if he knew of the express wishes of the testator, he might
want to accept such express wishes.
Take note, however, that it is done without knowledge. If the
repudiation is with knowledge, you cannot later on accept
the inheritance as a testamentary heir.
Art. 1056. The acceptance or repudiation of an inheritance,
once made, is irrevocable, and cannot be impugned, except
when it was made through any of the causes that vitiate
consent, or when an unknown will appears. (997)
Irrevocable. Once you accept, you cannot change your mind.
Once you reject, you cannot change it. An exception to that
is when there is fraud, force, undue influence. Or when there
is another will, where you have been instituted, you can still
accept or repudiate.
We already discussed 1057.
Art. 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)
and delivery of the shares to the heirs. When there is

already partition, then the administration ceases because the
heirs already owns specific portions of the property.
Administration refers only to an undivided estate.
A person is called an executor or executrix if he has been
appointed in the will to administer the property. If, for
example, there is a will but it does not mention that a person
who will take charge prior to the distribution, an
administrator may still be appointed. That is an administrator
or administratrix with a will annexed. (?) If there is no will,
that is intestacy, again if the heirs have not yet agreed as to
how will the estate be partitioned, and there is a need for
the appointment of the one who will take charge, then the
court will appoint an administrator or administratrix. If you
want to be appointed as an executor, you have to be named
in a will as an executor and you file a petition before a court
aside from the petition for probate of the will, petition for the
issuance of letters of administration. Again, you will learn
that more on SpecPro.
Art. 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)
The estate is insufficient to pay the debts. Here, we dont
have residual shares. The entire estate will be used to pay
the debt. We have an insolvent estate. There are assets but
there are more liabilities, so what will happen? We will follow
the rule on preference of credits as to who are entitled first
ahead of the other, and who will concur and be given
proportionate shares.
Art. 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)
It talks of a corporation or association authorized to conduct
the business of a trust company. That corporation may be
appointed as an executor, administrator, guardian of an
estate, or trustee. We actually have guardian over the
person, over the property, and over the person and property.
If it is a corporation, we can only appoint a guardian over the
property. It cannot be appointed as a guardian over a person
because as a guardian of a ward, there must be close
relationship with a ward.
SECTION 5. Collation
SECTION 4. Executors and Administrators
Art. 1061. Every compulsory heir, who succeeds with other

compulsory heirs, must bring into the mass of the estate any
property or right which he may have received from the
decedent, during the lifetime of the latter, by way of
donation, or any other gratuitous title, in order that it may be
computed in the determination of the legitime of each heir,
and in the account of the partition. (1035a)
Art. 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)
First, what is collation? Actually collation may be understood

in 3 concepts.
This will be discussed more in Special Proceedings. :D But as

an overview, when you say executors or administrators, they
are the persons in charge of the preservation and
administration of the estate pending the liquidation, partition,
1.
Collation as a mathematical process

The imaginary addition or fictitious union of the
property donated by the testator intervivos upon his
death.
115
2.
3.
Collation as an imputation
donation.
Donations intervivos made to compulsory heirs are

considered as advances to their legitimes
Does this mean that this not subject to collation? NO.
Actual reduction or abatement

It is the actual reduction or bringing back of the
property donated by the testator during his lifetime form
his estate, when the donations are found to be
inofficious.
Assuming during his lifetime left some donations, to A,

P200K, to B, P300K. At the time of his death, he left
properties amounting to P1.5 Million.
First, collation as a mathematical process, that is the
adding back of the value of the donations inter vivos to the
value existing at the time of death, we just add back. At the
time of death, the estate is P1.5 M, and then we add back
the P200K and the P300K, so the imaginary addition because
we do not get the property actually. So, the hereditary
estate, assuming that there are no debts is P2million.
Second, imputation.Meaning, we charge these donations
received during the lifetime of the testator or decedent, we
consider these as advances to the legitimes of the
compulsory heirs. The legitime of the children is of P2M.
So, P1M. We have 2 children, so the legitime for each would
be P500K. What will we do to this donation to A made during
the lifetime of the testator? We impute that to his legitime,
meaning that is considered an advance, at the time of the
distribution; he is only entitled to P300K because he already
received P200K in advance. The same with B, he is to receive
only P200K because he already received P300K. So, that is
imputation.
Third is actual reduction or abatement. During the
lifetime of the testator, he donated to his son P200K, to
another child P800K. At the time of his death, he left an
estate valued at P1M. By mathematical process we add back
the P200K and the P800k, we still have P2M. So, we
determine the legitime. The legitime of A is P500K, the
legitime of B is P500K. Now, the donation received by A shall
be imputed, so he is only entitled to receive an additional
P300K. The donation received by B will also have to be
imputed to his legitime. B will not receive anything because
he received everything (in fact, more than his legitime).
Where do we charge the P300k (excess)? We charge that to
the free portion, the free portion is P1M, so it can be
covered. Assuming that the free portion is only, (halimbawa
lang) P100K nalang? So, can we satisfy the excess of P300K?
So what do we do to satisfy the legitime? He will have to
return his donation will have to be reduced by returning the
property or its value to satisfy the legitime of the other
compulsory heir (if in case the legitime of the other
compulsory heirs are impaired as in this case dili na
mahatagan si A sa kulang na P300K, that is why I reduce
ang P800K ni B para ma accommodate ang legitme ni A).
VDA. DE TUPAS vs. RTC OF NEGROS
All donations are subject to collations. The law does not
make a distinction between the two as to what shall be
subject of collation. You need to make a distinction only as to
what portion of the estate shall you impute upon these
donations. If it is donation to compulsory heirs, charge these
to the legitimes. If it is donation to strangers, charge these
to the free portion.
BUHAY DE ROMA VS. CA
The issue here is WON a donation designated to be
irrevocable is subject to collation? The donation here was
termed as SA PAMAMAGITAN NG PAGBIBIGAY NG DI NA
MABABAWI MULI, this is an indication of being irrevocable
Irrevocability of a donation is not equivalent to not being

subject to collation. Those are different concepts. In
collation, even if the donation is considered irrevocable, it
will still be subject to collation, why? You can easily defeat
the law on legitime if you just donate the properties via
revocable donation. Still, they are covered, they are subject
to collation. The fact that the donation is irrevocable does
not necessarily exempt the subject from collation. The
intention to exempt from collation shall be expressed plainly
and unequivocally as an exception to the general rule
announced in Article 1062. Are we saying that can the
testator prevent the subject from being collated? Actually,
YES. We will discuss that later.
ARELLANO VS. PASCUAL
What happened in this case? Collation is not required in this
case since there is no compulsory heirs. The heirs here are
only collateral relatives (not entitled to the legitime). We do
collation for purposes of determining the legitime and protect
the legitime of the compulsory heirs. In this case, the
donation to the collateral relative (Amelia) shall be left as is.
The remaining estate shall be partitioned among the
surviving heirs who are private respondents and petitioners
including Amelia. This is the case when there is no
compulsory heirs.
Art. 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)
This is the one I mentioned. Can the donor provide that this
donation shall not be subject to collation? YES. For example,
during his lifetime, the donor donated properties worth
P500K to A. At the time of his death, he left P1.5 million. He
left 2 children A and B. Collation, 1.5 + 500k, P2M.
Legitime is P1M divided by 2 (A and B) so P500K each. Donor
said that this donation is not subject to collation, so what is
the consequence? This donation shall not be imputed to his
legitime. So, it will be charged to the free portion. So that is
the treatment. Or, the law says, if he repudiated. If in this
case, A repudiated his inheritance so, he will no longer
receive his inheritance. How about the donation made during
the lifetime of the testator (P500K)? We charge that to the
free portion.
In 1062, even if the donor provided that collation shall not
take place, collation as a mathematical process is still being
done. Although collation, as an imputation, is not anymore
being done. But if the donation is inofficious, what if it is
more than the free portion? Then still, the heir will have to
return. There is now a reduction or abatement of the portion
which exceeds the free portion.
Art. 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)
This merely refers to properties left by will like legacy or
devise; of course they are not subject to collation because in
the first place, they are not given during the lifetime of the
testator. They are just to be given back if the will is to be
probated provided they are not inofficious, otherwise, if they
are inofficious, they will be reduced.
Oct. 26 (ZMontefolca, JCPinili & FJBagundang)
116
Art. 1064. When the grandchildren, who survive with their
uncles, aunts, or cousins, inherit from their grandparents in
representation of their father or mother, they shall bring to
collation all that their parents, if alive, would have been
obliged to bring, even though such grandchildren have not
inherited the property.
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)
Here we are talking of inheritance by a representative
because the person represented cannot inherit. He has to
collate 2:
1.
Those which he received from the decedent himself

and
2.
Those which the person represented also received

from the decedent.
Example:
We have the decedent and the children of the decedent are
A B C and D and then A predeceased the decedent and he is
represented by X (child of A). X as representative of A has to
contend with two kinds of collation. Whatever donation inter
vivos received by his father during the lifetime of the
decedent he will have to collate. Also whatever donations
inter vivos he received from the decedent he will also have to
collate meaning charge to his share or if we are talking of
testamentary succession charge to his legitime.
Art. 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)
But in case for example (in the same example) during his
lifetime, B donated to A, B also donated to X but A did not
predecease so he inherited from B. B is obliged to collate
whatever donations he received from the decedent during
the decedents lifetime but the donation made to X that is
not subject to collation because here X is not an heir of the
the decedent. He is excluded by the presence of A. so how
about the share given to X? How shall we consider that? It
would be charged in the free portion the donation made to X.
it will still be added back to the estate. Will it be charged to
the legitime of A? no because X by the presence of A is not
an heir of the decedent. Again his donation shall be charged
to the free portion.
Art. 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)
Example: So A is the father of X and then X is married to Y. if
A donated to Y, that donation to Y shall not be charged to
the legitime of X. that is considered as donation xxx because
Y is not an heir of A in my example.
But if they have been given jointly by A to X and Y, of the
value of the donation is to Y and of the value is to X so X
will have to collate only , that portion which pertain to the
donation made to the heir by the parent.
Art. 1067. Expenses for support, education, medical
attendance, even in extraordinary illness, apprenticeship,
ordinary equipment, or customary gifts are not subject to
collation. (1041)
When the law says in 1067 that these are not subject to
collation, they are not subject to collation at all. So the
values of these expenses are not added back to the estate.
They are not charged or considered as advances to the
legitime because they are considered as obligation of the

parents to incur these expenses. These are not gratuitous
grants but these are obligations; they are not donations.
Take note of the last sentence, customary gifts these are not
also subject to collation. So how do we know if the gift is
customary? Then customary mo naga regalo ug car sa isatisa. Is that subject to collation? It really depends on the
status of the family.
So kung ordinary lang that is not just customary. There is
another provision here that deals with this.
Art. 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)
Again, article 1068 mentions of professional, vocational or
other career but 1067 mentions about support and
education. So education being referred in 1067 shall only
mean up to high school. 1068 refers to college at least na
equivalent siya to professional, vocational or other career. So
meaning it shall not be brought to collation unless the
parents so provide unless they impair the legitime. This is
what we call optional collation.
As a general rule, they are not subject to collation so they
shall not be added or considered advances to the legitime
unless the parents to provide.
So here if the parents would provide that your education
expenses in law school shall be subject to collation and
considered as advances to your legitime then that can be
done. So you cannot say that it is unfair. You studied for
more than ten years how can that be unfair? So it is subject
to collation
Or even if the parents did not so provide but it will impair the
legitime. So nahurot na ang resources sa inyong family kay
tungod sa law school so unfair pud sa imong mga igsuon kay
tanang kayamanan ninyo naadto nalang didto. So that will be
subject to collation and thus considered as advances to your
legitime.
But the law says whenever collation is required, whatever
amount that your parents would nevertheless spend if you
did not study law school so you just stay home nag puyo
raka didto makagasto man gihapon sila sa imo kay pakanon
man ka, hatagan kag clothing, mugamit kag kuryente, so
kana siya pwede na siya ibawas or I collate sa imuha. So
thats the meaning to 1068.
Art. 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)
So expenses paid for the debts of the children or any
amount, naa kay utang gibayaran nila, or nag election na
unya nag campaign ka nag contribute sila sa imong election
campaign so subject to collation. Or fine like na preso ka
nag bail ka subject na to collation so considered as advances
to your legitime.
Art. 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)
Another provision dealing on gifts. We discussed before that
customary gifts are not subject to collation. When you
receive wedding gifts, jewelry, clothing and outfit, the law
says these shall not be subject to collation these shall not be
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reduced as inofficious except insofar as they may exceed
one-tenth of the sum which is disposable by will.
So are they subject to collation xxx as a mathematical
computation? Yes their value shall be added back to the
estate. And then shall they be charged to the legitime of the
heir who received these gifts? The law says except only if
they exceed one-tenth of the free portion.
So in the computation, for example the free portion is 2
million and the wedding gift is 10,000 consisting of these
items. What is 1/10 of 2m? 200,000. So definitely that gift
does not exceed 200 so that cannot be charged to the
legitime. But if it exceeds 10% so halimbawa 300K worth of
wedding gown so the excess only which is 100K in the
example shall be charged to the legitime of the compulsory
heir who received those gifts.
How about gifts not jewelry clothing and outfit? How about a
house and lot? Is it covered by this article? This article says
jewelry clothing and outfit. Is it also customary? If the family
is just middle class, that cannot be considered as customary.
That will be in the category of a donation which is subject to
collation. That would be added to the estate and fully
charged to the legitime meaning considered as advance to
the legitime of the heir who received this gift.
Again, kung Millions ang value and even sa birthday sa
imong friend mag hatag ug house and lot, definitely that is
not customary so it depends of the value of the estate and
the status of the family. But how do we know whats the
status? It also depends on the value of the estate.
Art. 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)
Collation as a mathematical computation. All donations inter
vivos shall be brought back meaning added back to the value
existing at the time of death. How much is the value of the
donation? The value at the time of death? Or value at the
time the donation was made? The law says, their value at
the time of donation. So that is the basis of the computation,
how about the deterioration or improvement of the value
when if the value decreased or increased it does not matter
because we are talking here of the value at the time of the
donation. The law says it shall be for the benefit if it is
improvement, benefit of the donee, if deterioration at the
risk of the donee.
Art. 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)
So the mother and father donated a land to the son. The
value of the land was 1M. so that was jointly made by the
parents. On the death of the father, of the donation shall
be collated to his estate. Mao lang to siya ang portion na mu
adto sa estate sa father. If the mothers dies then the other
half shall be brought back to the estate.
Art. 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)
Were talking here of a done who is also a compulsory heir
therefore the donation received by him shall be considered
as advance to his legitime. So if he received a land worth
500K and his legitime is 1.5M so he will just receive an

additional of 1M. so if he received land for the purpose of
equality, the other heirs should also be given lands sam kind
as much as possible same nature, class and quality.
Art. 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 or 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)
So if the provision of 1073 are impracticable, because you
cannot give the other heirs something which is of the same
class nature and quality as given to the other one received in
advance, the law says if the property donated was an
immovable, what are the rights of the other heirs?
Their right I also to receive an immovable. But if that is not
practicable then its equivalent to cash and securities. Kung
walay cash and securities sa estate properties of the estate
can be sold to generate cash and securities.
But if the property donated to the other heir was a movable,
the other heirs have no right to demand cash or security
although again as a general rule and as a first priority they
should receive the same class nature and quality like that
received by the other heir. If not then they have the right to
select an equivalent other personal property at its just price.
Art. 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)
So question, for example there is collation, is the done
obliged to return the fruits and interest of the property? First
that question would not be relevant if there is no reduction
or abatement of the donation because he retains the
property donated. But if he has to return? How about the
fruits and interest? The answer is only the fruits and interest
at the time of death of the decedent. At the time when
succession opens which is the time of death.
But the fruits and interest at the time they received the
donation until death but starting from the time of death
because theoretically that is the time when he is supposed to
return that portion which is inofficious then he has to
account for the fruits and interest if that is the whole
property that is to be returned then the fruits and interest
corresponding the whole property if he only has to return a
portion of the property then the fruits and interest only
corresponding to that portion to be returned so that is
insofar as the fruits and interest are concerned.
Art. 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 if effected.
As to works made on the estate for the mere pleasure of the
donee, no reimbursement is due him for them; he has,
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however, the right to remove them, if he can do so without
injuring the estate. (n)
So what expenses should be reimbursed to the donee? This
question would only arise if there is a need to return the
property donated so collation by way of reduction or
abatement. There are three expenses mentioned.
1.
Expenses for preservation should be reimbursed

regardless of whether or not they increase the value
of the property because these are necessary.
2.
Improvements which have increased the value of

the property. He shall be reimbursed and only if the
improvements exist at the time the partition is
effected. The distribution of properties among the
heirs.
3.
As to expenses made on the esttae for mere

pleasure of the donee, no reimbursement is due
however he has the right of removal provided that
the estate would not be injured upon such removal.
Art. 1077. Should any question arise among the co-heirs

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)
Again, issues can arise as to whether or not certain things
are to be collated or not to be collated. The law says these
shall not be allowed to delay the distribution. The heirs can
still distribute whatever properties are present in the estate
pending determination of the propriety of collation but
according to the law provided adequate securities are given.
So the heir can still partition or distribute even if there are
pending issues in collation as long as there is a security given
which is intended to protect other heirs assuming that the
heir that is bound to collate cannot do so. So the security will
answer for that.
So that would be for collation. So for every article we
discussed in collation, just know if under this article are we
talking only of mathematical computation? Is this also an
imputation to the legitime? Is this also a reduction or
abatement? When you say not subject to collation are we
referring to collation as a mathematical process? Or collation
as a way of imputation? Remember, based on the articles we
discussed as a general rule, if there are compulsory heirs,
collation as a mathematical process is always present. And
then even naay compulsory heirs imputation or considered as
advances to legitime. As a general rule, these donations are
considered as advances to the legitime of the compulsory
heir unless the testator provides otherwise. How about
reduction or abatement? That can only happen if the
donations are proven to be inofficious. That would be for
donation.
The only articles here wherein collation as a mathematical
process is not done we have article 1063 because legacies
and devices are not even added back to the estate because
they are always given during the distribution. Article 1067
this is not subject to collation even as a mathematical
process because these are obligations. Those are the only
provisions when collation as a mathematical process is not
done.
SECTION 6. Partition and Distribution of the Estate
Subsection 1. - Partition
Again this will happen whether it is testamentary or intestate
succession. if it is testamentary succession this would
happen after the will is allowed and the court will now
distribute the property in accordance with the will of the
testator. in case of intestate succession, it depends. It can be
an extrajudicial partition so the heirs themselves without

going to court they can partition and distribute the estate by
themselves. They execute what we call an extra judicial
settlement or extra judicial partition. You will discuss that in
your special proceedings.
If there is only one heir, he can execute an affidavit of self
adjudication so that can be done extra judicially. If there are
several heirs, and they cannot agree how to partition then
they can resort to a judicial partition so they would have to
file a petition in court for the settlement of the intestate
estate of the decedents.
Usually if the estate is large and you take time to liquidate
and partition the estate usually an administrator is appointed
although again this is not always mandatory but in that
situation an administrator is usually appointed.
Art. 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)
There is what we call co-ownership in this case who are coheirs. So heirs own in common an estate. So when you say
own in common we mean they are the spiritual, ideal, aliquot
portion of the estate they cannot point to any specific portion
of the estate as being owned by them or any one of them
exclusively so everything in common.
So if there are two heirs and there is no designation of their
shares so and so equal shares. So every portion of the
property. Before partition an heir cannot sell a specific
portion of the estate. If he does that, the sale is void
because he does not own any specific portion. He can sell his
share but he cannot sell a specific portion so the sale is void.
But assuming after the sale, that same portion adjudicated to
the heir for example heir number 1, the same portion which
he sold earlier was really the one adjudicated to him then he
cannot dispute that sale as being void because he is now
estopped so that sale shall be respected. That would be the
principle insofar as that sale is concerned before partition.
Art. 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)
This is the concept of partition, the separation, division or
assignment. Imagine a pizza when you partition. So
everything is divided among the several heirs.
We mentioned before that if the decedent died intestate, his
heirs can just enter an extrajudicial partition of his property.
Actually, if there are several heirs and they all agree this is
the best way to settle the estate because this is the least
expensive, you only have to execute a public document
which is an extrajudicial settlement and publish it and
present it to the ROD. Based on that extrajudicial partition
the title of those property can now be transferred to the
heirs. Based on how they agree to the partition in the
Extrajudicial settlement. We have the case of Heirs of
Joaquin Teves v. CA.
Heirs of Joaquin Teves v. CA
In Rule 74, for the validity of the Extrajudicial Settlement the
following requisites must be complied with: (1) The decedent
died without a will, (2) There are no debts and if there are
debts it should have been paid, (3) the heirs are already of
age and if they are minors they should be represented by
legal guardians and (4) the extrajudicial partition settlement
must be made in a public instrument and must be registered
in the Registry of Deeds.
The heirs of CrescencianoTeves questions the validity of the
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extrajudicial settlement for failure to comply with the
requirement for Section 1 Rule 74 of ROC. The SC upheld the
validity of the 2 extrajudicial settlement, first, the grounds
alleged by CrescencianoTeves is fraud however the action for
reconveyance must be made within 10 years from the cause
of action, therefore, it is already barred by prescription. On
the second ground, the SC held that the requisites need not
be all complied with if the extrajudicial settlement has no
creditors. In this case, there are no creditors to the testator.
Under the ROC, the will must be in writing. Aside from that it
must be filed with the ROD. These requirement will be
relevant if there are creditors affected. Why? Both for the
protection of heirs and the creditors. Creditors need to be
protected. Creditors have a certain period of time in which
they will file their case. A partition can be in any form. These
requirements are not necessary if there are no creditors.
Art. 1080. Should a person make partition of his estate by
an act inter vivos, or by will, such partition shall be
respected, insofar as it does not prejudice the legitime of the
compulsory heirs.
A parent who, in the interest of his or her family, desires to
keep any agricultural, industrial, or manufacturing enterprise
intact, may avail himself of the right granted him in this
article, by ordering that the legitime of the other children to
whom the property is not assigned, be paid in cash. (1056a)
So, a partition can also be done by the testator. The one
which has been mentioned are those done by the heirs
themselves. The testator can also partition, how? The law
says, he can by act intervivos or by will as long as it does not
prejudice the compulsory heirs. How can these act intervivos be done? This is an act by the testator during his
lifetime. This is explained in the case of JLT AGRO v.
Balansag.
JLT AGRO v. Balansag
What is the document here that is equivalent to partition
inter-vivos? It was the compromise agreement. A partition
inter-vivos is only an inchoate right or an expectancy. The
character of partition inter-vivos, it is an instrument of
special character, it is sui generis, it is revocable anytime by
the causanteduring his lifetime and does not operate as a
conveyance of his title until his death, it derives its binding
force upon the heirs from the decedent due to the will of the
property limited only by the creditors and the intangibility of
the legitime of the forced heirs. So, it is a special character
sui generis one of its kind. The decedent here could execute
this during his lifetime but could take effect upon his death.
It is revocable at any time during his lifetime. There is no
vested right even to the heirs because all they have is only
an expectancy. The nature of a partition inter-vivos it does
not have a specific formality.
Art. 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.
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 mandatary, 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)
So here, the testator himself did not make the partition. He
entrust the mere power to partition after his death to any
person. This is different from will making because he cannot
entrust the act of will making to another person. Although, in
notarial will he can entrust only the mechanical act of

drafting the will but as to the making a will he cannot do so.
As to partition, he can entrust the mere power to partition to
any person even if not an heir. This is another aspect of
partition and it can be done by act inter-vivos or in a will
(Mortis Causa)
Art. 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, and exchange, a compromise, or any other transaction.
(n)
This highlights the fact that a partition need not be in
writing, it can be any act to put an end to indivision between
co-heirs.
Crucilio v. CA
So here even there is no clear document showing a partition
has been made but the acts of the heirs themselves they
already partition the property. Before I mentioned to you a
sale of a portion before a partition is not valid but here there
is already a partition the sale of the portion is already valid.
Remember that principle, it can be seen in the acts of the
heirs themselves; you do not need any instrument, any act
that may show partition.
Art. 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 co-ownership
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)
This is the second burden that can be applied on the
legitime. The first is the concept of Reserva Troncal. So here
as a general rule, every heir has a right to demand the
division of his estate. Because nobody is obliged to stay upon
a co-ownership. In fact, the law frowns upon co-ownership
because it is always burdensome. As much as possible you
should not remain in the co-ownership.
IN RE: PROBATE OF WILL OF BASILIO SANTIAGO
The prohibition to partition can only be valid up to 20 years.
Take note, that even though there is a prohibition by the
testator to partition assuming wala pa naglapseang 20 years
when any of the causes for which partnership is dissolved
takes place. The grounds for the dissolution of the
partnership, there can also be a partition or when the court
finds compelling reason that division should be ordered,
upon petition of one of the co-heirs. Now when can partition
be demanded? Is there a prescriptive period for a partition to
be demanded?
SANTOS v. SANTOS
In this case the possession was merely tolerated. The right
to demand partition does not prescribe and it cannot also be
barred by laches. It is imprescriptible and cannot be barred
by laches. However, if there has been a prior repudiation of
the co-ownership, then acquisitive prescription may set in on
the part of the person repudiated.
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Art. 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)
There are instances when some heirs where their inheritance
is subject to a condition. So until the condition is fulfilled they
cannot say that they are entitled to the inheritance. Is this
now an impediment to the condition? The law says with
respect to that heir upon whom the condition is given he has
to fulfill that condition but as to other co-heirs whom no
condition is imposed they can demand a partition only that
they have to give a security so that in case the condition is
fulfilled then this heir who did not fulfill as of this time can
still get it in the future when he already fulfills the condition.
Art. 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)
What if the thing cannot be divided like a car? The best thing
is to sell the car and divide the value.
Art. 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)
Art. 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)
The following requisite should be complied with:

(1) They should be co-heirs and
(2) The right must be exercised before partition. The
essence here is to prevent another person to enter
into co-ownership
(3) Sale is made by one of the co-heirs to a stranger
not a co-owner to the same inheritance.
If Z sold to X, there is no right of legal redemption insofar as
Y is concerned because here sila lang ghpn duha ang coowners and (4) the right of legal redemption is exercised
within 30 days from written notification of the sale. The usual
question here is the commencement of the 30 day period,
WON the right of legal redemption has already lapsed. There
are several cases here.
Garcia Case
The SC ruled that the law is clear and unambiguous Art 1088
requires that the notification must be in writing. So a written
notification cannot be substituted by actual knowledge there
must be written notification.
What is the purpose of the written notification? To inform
other co-heirs that the other co-heir is selling the property
and to give them the right to buy the said property.
Why no verbal notification? To remove all uncertainty as to
the sale, its terms and validity and to quiet any doubt and
the law does not provide any alternative, it says written
notification. Written notification is mandatory.
Alonzo v. IAC
Few cases where Actual Knowledge is equivalent to written
notice as in the case of Alonzo v. IAC because the right of
legal redemption was invoked more than 13 years after the
sales were concluded, this is not mere constructive notice
but there was actual knowledge on the part of heir who
invoked the right of legal redemption.
Cabales v. CA
When did the sale, which was the subject of the exercise of
the right of legal redemption, take place? The sale happened
in 1978.
What if before the partition certain heirs already receive

income of the properties of the estate. They would have to
reimburse one another for the fruits which each of them
have received. The point here is to assure equality among
the heirs. Equal as to the shares receive and as to the
income and fruit received or the shares allocated to them by
the testator.
Who sought here the legal redemption? Petitioner Nelson

Cabales.
Art. 1088. Should any of the heirs sell his hereditary rights
to a stranger before the partition, any or all of the co-heirs
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)
When did he seek barangay conciliation process? 1993.
This is the Right of Legal Redemption by the co-heir. This

applies when several heirs are instituted to the same
inheritance. They are co-heirs or co-owners to the property.
Just like unity of object in accretion. This right is exercised
before partition. The purpose here is to prevent the third
person from entering a co-ownership.
The situation in this case is when X,Y and Z is instituted to a
parcel of land 12 Ha. And then prior to partition Z sold his
share to A not heir to his land. A will now be a co-owner with
X and Y. SO here X and Y can extinguish the ownership of A
by reimbursing A for the price of the sale because it is
already burdensome. X and Y will be the co-owners.
When did Nelson learned of the sale? 1988.

At the time of the sale in 1978, Nelson was still a minor but
when he was informed of the sale, he was already of legal
age.
When did he file the complaint for legal redemption? Only

two years after in 1995.
What did the Supreme Court say about that?
From the full text: In the instant case, the right of
redemption was invoked not days but years after the sale
was made in 1978. We are not unmindful of the fact that
petitioner Nelson was a minor when the sale was perfected.
Nevertheless, the records show that in 1988, petitioner
Nelson, then of majority age, was informed of the sale of
subject property. Moreover, it was noted by the appellate
court that petitioner Nelson was likewise informed thereof in
1993 and he signified his intention to redeem subject
property during a barangay conciliation process. But he only
filed the complaint for legal redemption and damages on
January 12, 1995, certainly more than thirty days from
learning about the sale. In the face of the established facts,
petitioner Nelson cannot feign ignorance of the sale of
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subject property in 1978.
What did the Supreme Court say about the requirement of
written notice?
From the full text: To require strict proof of written notice of

the sale would be to countenance an obvious false claim of
lack of knowledge thereof, thus commending the letter of the
law over its purpose, i.e., the notification of redemptioners.
The Court is satisfied that there was sufficient notice of the

sale to petitioner Nelson. The thirty-day redemption period
commenced in 1993, after petitioner Nelson sought the
barangay conciliation process to redeem his property. By
January 12, 1995, when petitioner Nelson filed a complaint
for legal redemption and damages, it is clear that the thirtyday period had already expired.
Here, the Supreme Court considered the year 1993, when
Nelson signified his intention to redeem the property during
the barangay conciliation process, as the commencement of
the 30-day period within which he should have redeemed the
property. This is an exceptional case because in all other
cases, there has to be a written notice.
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)
Article 1090. When the title comprises two or more pieces
of land which have been assigned to two or more co-heirs, 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)
For example, there is co-ownership of a land which was not
segregated into specific portions.The heirs merely have an
aliquot share. The law says to the one having the largest
interest. If they have the same interest, the oldest shall
have the title. He will be the one to hold the title. That is
the meaning of Article 1090.
Now, we go to the effects of partition.
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)
As we said, before partition, each heir cannot claim a specific
portion of property as owned by him. He is a co-owner of
every portion of the property to the extent of the interest
owned by him. After partition, the heir can now claim a
specific portion of the property as his exclusive property.
That is the effect of partition.
UNION BANK OF THE PHILIPPINES v. SANTIBAEZ
What was the act here done considered as a partition? The
execution of a joint agreement by the heirs of Santibaez.
What was the subject of that joint agreement? The three
tractors to be adjudicated among themselves.
By that act, actually, it was equivalent to a partition because
the two already owned those tractors, but the limitation in
this case is that it should be done while the will is being
probated.
From the full text: The joint agreement executed by Edmund
and Florence, partitioning the tractors among themselves, is

invalid, specially so since at the time of its execution, there
was already a pending proceeding for the probate of their
late fathers holographic will covering the said tractors.
It must be stressed that the probate proceeding had already
acquired jurisdiction over all the properties of the deceased,
including the three (3) tractors. To dispose of them in any
way without the probate courts approval is tantamount to
divesting it with jurisdiction which the Court cannot allow.
Every act intended to put an end to indivision among coheirs 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. Thus, in executing
any joint agreement which appears to be in the nature of an
extra-judicial partition, as in the case at bar, court approval
is imperative, and the heirs cannot just divest the court of its
jurisdiction over that part of the estate.
If there is a will, again, do not enter into any partition which
is not in accordance with the will.
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)
There is a reciprocal warranty after partition. What are the
warranties? Those are the ones mentioned in the succeeding
articles. Let us proceed first to 1093.
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)
Actually, they have reciprocal warranty against insolvency
and warranty against eviction. For example, if the co-heirs
have already divided the property among themselves but one
of them was evicted in his share, so the others must
contribute to compensate him for the loss because it is not
due to his fault that he was evicted. So, for equality, the
others must contribute. That is warranty against eviction.
Another example, one of the co-heirs is assigned a receivable
but it turned out to be uncollectible, so the others, again,
must contribute to compensate him. But what happens if one
of the co-heirs is insolvent? The law says 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. The one insolvent, once his financial condition
has already improved, can also be held to contribute to the
other co-heirs who paid the other co-heir, who was either
evicted or was not able to collect.
Article 1094. An action to enforce the warranty among
heirs must be brought within ten years from the date the
right of action accrues. (n)
When do the right of action accrue? It depends. If it is based
on insolvency, then from the date of the insolvency. If it is
based on eviction, then from the date of eviction.
Article 1095. If a credit should be assigned as collectible,
the co-heirs shall not be liable for the subsequent insolvency
of the debtor of the estate, but only for his insolvency at the
time the partition is made.
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The warranty of the solvency of the debtor can only be
enforced during the five years following the partition.
partition or it was due to the fault of the distribute, then

there is no warranty.
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)
Now, we go to the last portion of partition.
Here, we are talking of a credit, which is assigned as a

collectible. So, there is a collectible from A, B, C, D,
respectively, and so on. Then one of the co-heirs was
assigned a receivable which turned out to be uncollectible
due to the insolvency of the debtor. Would the warranty
against insolvency still exist? Should the other heirs
contribute to the one who was not able to collect so that
there be equality among themselves? The law says if the
debtor is already insolvent at the time the partition is made,
then the warranty still subsists. But if the insolvency
happened after the partition, then there is no warranty as to
the subsequent insolvency of the debtor. So, the warranty
subsists only for the debtors insolvency at the time of
partition.
Article 1097. A partition may be rescinded or annulled for

the same causes as contracts. (1073a)
As to bad debts, there is no warranty against bad debts if

these are known to and accepted by the distributee.What if
the estate already knew that the same is a bad debt, so they
did not distribute it in the first place, and then subsequently,
it can already be collected? In that case, they will have to
distribute it among the heirs proportionately.
Take note of the time within which to enforce a warranty of
the solvency of the debtoris only five years from the
partition.
Article 1096. The obligation of warranty among co-heirs
shall cease in the following cases: xxx
Here, there is no reciprocal warranty among the co-heirs.
(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; xxx
When the testator himself has made the partition. This is
because the heirs have no choice but to accept the partition
made by the testator. You cannot have a warranty against
the testator unless all of the heirs decide that there be such
warranty. The exception is if the legatime is already affected.
The legitime should always be unimpaired. So, if he is
deprived of his legitime, then the other co-heirs must
contribute so that the legitimes will still be satisfied;
(2) When it has been so expressly stipulated in the
agreement of partition, unless there has been bad faith; xxx
When it has been so expressly stipulated in the agreement of
partition that there should be no reciprocal warranty unless
there has been bad faith; and
(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)
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. Here, there is also no reciprocal warranty
because it is no longer the fault of the heirs that there is a
subsequent eviction. For the warranty to subsist, there must
already be a cause existing at the time of partition although
there be no eviction yet. But if the cause arose after the
Subsection 3. - Rescission and Nullity of Partition
We discussed before in obligations and contracts the grounds

for annulment or rescission. Lesion is a ground for rescission.
That would be discussed in the subsequent article. Vitiated
consent is also a ground to annul a contract. Fraud, mistake,
violence, undue influence are the vices of consent.
Article 1098. A partition, judicial or extra-judicial, may also
be rescinded on account of lesion, when any one of the coheirs 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)
You receive a share which isvalued at least less than . For
example, you are entitled to 100,000php but you only
received 75,000php. Lesion is 25,000php which is at least .
The partition can be rescinded.
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)
Even if there is lesion, as long as the partition was made by
the testator himself, that partition also cannot be impugned.
Again, as long as the legitime of the heir is not prejudiced.
That is the limitation.
Article 1100. The action for rescission on account of lesion
shall prescribe after four years from the time the partition
was made. (1076)
There are actually several prescriptive periods provided in
succession aside from the general rule on prescription.
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)
What is the consequence if there a rescission due to lesion?
Here, it is either:
a)
You are prejudiced due to lesion, in which case you

will be given the amount which is lacking. You will
be indemnified for the balance; or,
b)
You can have a new partition but those heirs whose

shares is correct or are not prejudiced are no longer
included in the new partition as provided in the last
portion of Article 1101.
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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)
Here, he can no longer return the property adjudicated to
him and he cannot have a new partition, so what he could do
is just to indemnify him in cash the balance of what is
supposed to be due to him.
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)
This is what we call preterition of objects in the partition. The
omission of one or more objects in the partition is not a
ground to rescind a partition. Do not make a new partition.
What you need to do is just to partition those objects not
included in the prior partition.
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)
This talks of preterition of compulsory heirs in the partition.
It is different from article 854, which speaks of preterition in
the will or inheritance. Article 854 presupposes that there
should be a will.
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.
Article 1104 speaks of preterition not in the will but in the
partition. Here, an heir was not included in the partition. How
does that affect the partition? The law says it will not rescind
the partition as a general rule. So, what will happen if the
partition cannot be rescinded and there is one compulsory
heir who cannot be given his share because he was omitted?
The remedy is to give him his share. There is no new
partition. The exception is when there is bad faith on the
part of the persons interested. In that case, the partition can
be rescinded.
Non v. CA
From the full text: The exclusion of petitioner Delia Viado,
alleged to be a retardate, from the deed of extrajudicial

settlement verily has had the effect of preterition. This kind
of preterition, however, in the absence of proof of fraud and
bad faith, does not justify a collateral attack on Transfer
Certificate of Title No. 373646. The relief, as so correctly
pointed out by the Court of Appeals, instead rests on Article
1104 of the Civil Code to the effect that where the
preterition is not attended by bad faith and fraud, the
partition shall not be rescinded but the preterited heir shall
be paid the value of the share pertaining to her. Again, the
appellate court has thus acted properly in ordering the
remand of the case for further proceedings to make the

proper valuation of the Isarog property and ascertainment
of the amount due petitioner Delia Viado.
That is clear. Just give to the omitted or preterited heir his or
her share that is supposed to be due to her had she been
included in the partition.
Reillo v. Heirs of San Jose
From the full text: A deed of extrajudicial partition executed
without including some of the heirs, who had no knowledge

of and consent to the same, is fraudulent and vicious. The
deed of settlement made by petitioners was invalid because
it excluded respondents who were entitled to equal shares
in the subject property. Under the rule, no extrajudicial
settlement shall be binding upon any person who has not
participated therein or had no notice thereof. Thus, the RTC
correctly annulled the Deed of Extrajudicial Settlement of
Estate Among Heirs with Waiver of Rights dated January 23,
1998 and TCT No. M-94400 in the name of Ma. Teresa S.J.
Fernando issued pursuant to such deed.
Quiterio here made a misrepresentation because when he
made the Deed of Extra-Judicial Partition, they said that they
are the only heirs when in fact they have knowledge that
there are others who are not included in the extra-judicial
settlement. So, there was bad faith. It was annulled in this
case.
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 is the reverse of Article 1104, wherein a compulsory heir
was not included. Here, there is a person who is not an heir
who was included in the partition. What is the effect of that
in the partition? Will it render void the entire partition? The
law says it shall be void only with respect to such person.
Aznar Brothers Realty v. CA
From the full text: Private respondents claim that not all the
known heirs of Crisanta Maloloy-on participated in the

extrajudicial partition, and that two persons who
participated and were made parties thereto were not heirs
of Crisanta. This claim, even if true, would not warrant
rescission of the deed. Under Article 1104 of the Civil Code,
"[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 persons interested;
but the latter shall be proportionately obliged to pay to the
person omitted the share which belongs to him." In the
present case, no evidence of bad faith or fraud is extant
from the records. As to the two parties to the deed who
were allegedly not heirs, Article 1105 is in point; it provides:
"A partition which includes a person believed to be an heir,
but who is not, shall be void only with respect to such
person." In other words, the participation of non-heirs does
not render the partition void in its entirety but only to the
extent corresponding to them.
Actually, the issue here is also Article 1104. It is not a ground
for rescission unless there is bad faith or fraud. Also, in this
case, only the inclusion of persons who are not heirs shall be
annulled (1105).
TRANSCRIPT COMPLETE. GOD BLESS US.

KJavier
124

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SUCCESSION TRANSCRIPT

From the lectures of Atty. Lielanie Yangyang-Espejo, CPA

Title IV. SUCCESSION

2. Legal or intestate. Legal succession, generally

1. Wills or testamentary succession

Now, if the testator is just allowed to give his property a

These are the bases of succession.

Donation mortis causa

Governed by the law on

Governed by the law on

synonymous to succession inter

Synonymous to succession mortis

We have two kinds of succession:

1. It conveys no title or ownership to the transferee

If property to be donated is less than P5K = may be

If the value exceeds P5K

Personal property = must be in writing

How about if I just reserve the naked ownership?

Real property = must be in a public document

If the transferor retains ownership, whether full ownership or

So you have to observe that for donations. What happens if

2. That before his death, the transfer should be

giunsa nimo pagkaeredero kung nauna ka namatay. In fact,

Here it was very clear in the document that it was really a

Ad Majorem Dei Gloriam

Now lets go to the case of:

property to some other person. So wala pa gyud ma-settle ang

So going back to our definition of succession under Article

Ad Majorem Dei Gloriam

that is not property. You cannot pass that on to your heirs. If

Remember the persons or entities who may become legatees

Ad Majorem Dei Gloriam

na siyaang requisites. Different ang technicalities insofar as

Again, any property can be transmitted by Succession as

The rights under a contract are transmissible. Basic example,

A contract of insurance, it can also be transmitted. We have

Ad Majorem Dei Gloriam

Right to file an action for forcible entry or

If you are the lawful owner of property, and you want to

Right to compel the execution of a public

If you still remember Article 1357 in obligations and

to mortis causa transfers like if the lessee dies.

Even if the usufruct relates to a property but under the NCC

General rule is that a contract of agency is extinguished by

Right to file an action to recover possession

Right to enforce civil liability arising from

Example: A was constituted by B as his agent to sell a land.

Right to recover from tort or negligence

Art. 1919. Agency is extinguished: xxx

Those are examples ha, daghan pa. Of course we cannot

(3) By the death xxx of the principal or the agent. xxx

Again, GR: Patrimonial rights can be transmitted by

If the agent dies he cannot pass his right as an agent to his

The following are patrimonial rights that

Stipulated in the contract

First, even if a right is generally patrimonial, so they can be

EXC to the EXC: However there is an agency that will not

RA 3844 agricultural leasehold tenancy

Example: there is an agricultural land, and there is a person

Ad Majorem Dei Gloriam

siya. ayaw mog sugut ug sharing.

PURELY PERSONAL RIGHTS

Parental authority. Upon the death of the parents

Right to receive support.