Wills Transcription

SUCCESSION
Lecture By: Dean Navarro
TABLE OF CONTENTS
BASIC PRINCIPLES ............................................................
WILLS
DISPOSITIONS with a TERM .....
44
LEGITIMES
49
Wills in General .........................................................
Reserva Troncal ..
51
Testamentary Capacity and Intent ..........................
Collation ..
57
DISINHERITANCE
63
Form of Wills
Notarial Will .................................................
10
LEGACIES and DEVISES .
67
Holographic Will ..........................................
17
LEGAL or INTESTATE SUCCESSION ..............
72
Witnesses to Wills ......................................................
22
Right of Representation .
73
Codicil and Incorporation by Reference ..................
23
Intestate Shares ...
75
Revocation ..................................................................
25
PROVISIONS COMMON to TESTATE
Republication and Revival ........................................
28
and INTESTATE SUCCESSIONS ...
78
Allowance and Disallowance .....................................
29
Right of Accretion ...
78
INSTITUTION of HEIRS ......................................................
32
Capacity to Succeed
82
SUBSTITUTION of HEIRS ...................................................
37
Acceptance and Repudiation .
86
CONDITIONAL DISPOSITIONS and
Transcribed by: Bjone Favorito
PARTITION and DISTRIBUTION of ESTATE .. 87
Page 1
BASIC PRINCIPLES
One of the Basic Principles in Succession is the Primacy of

the Decedent or the Will. To a certain extent, that is somehow
mitigated by the provisions on legitime. Because while, generally
speaking, the testator has the right to give his property to anyone he
wants and do with it as he pleases, to a certain extent, that right is
mitigated by the provisions on legitime kung meron ka compulsory
heirs, you cannot simply dispose of your entire estate in favor of any
one whom you choose. The law reserves a certain part of your estate
for your compulsory heirs. Thats the reason why, as a general rule,
Testacy is preferred over Intestacy.
Theories in Succession
One theory is that succession is simply an Extension of the

Right of Ownership. In other words, if you are the owner of
the property, you should also have the right, not only during
the lifetime but even after death, to determine who will
benefit from your properties.
Another theory is that succession is based on the Right of
the Family. The basis is Family Co-ownership. As we
acquire properties, we have our families with us, who helped
us amassed wealth.
The third theory is a combination of both theories.
The law says it is a mode of acquisition. Therefore it is, by

itself, a separate distinct mode of acquiring ownership. That being
the case, succession is sufficient to transfer, convey and vest
ownership in a person.
774 also say there is transmission through his death. You
only have succession, testate or intestate, if and when there has
already been death. Hence, death is essential for there to be either
testate or intestate succession.
But what is death? When is a person considered dead? For
our purposes, a person is considered dead when there has been a
total permanent irreversible cessation of essential bodily
functions. From the point of view of the law, there is no such thing
as temporary death.
If a person is rushed to the hospital at 7:00am caused by a
massive heart-attack and two doctors proclaimed him dead DOA.
The doctors signed the death certificate, and the person was taken
home by his relatives. At 11:00am the same morning, he suddenly
sits up and ask for food. Was there succession from 7:00am to
11:00am when he appeared to be dead? NO, no such thing as
temporary death.
What is Succession? The law gives us a codal definition in

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.
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In succession, there are so-called Subjective and Objective

Elements.
Subjective the person who died, and those who succeed
him (the heirs, legacies, devises).
Objective the inheritance
In this connection, remember the very important article
777: The rights to the succession are transmitted from the moment of
the death of the decedent. If a person dies at 7:00pm, from that very
moment, succession rights are already transmitted.
Best illustration of principle is the old case of Lorenzo vs.
Posadas a person died, and in his will he said I give all my
properties to my nephew, but only after 10 years from the time of my
death. At the mean time, his properties will be administered by his
executor. The question which arose is: in determining the amount of
the taxes due, which should be used as basis? The value of the
properties at the time of death, or at the end of the 10-year period?
Applying 777, it should be the value at the time of death, because it
is at that moment when there is a transmission of successional rights.
Of more recent vintage, there is the case of Locsin vs CA
this is much in resemblance with the case involving the estate of
Do a Chito Madrigal. In both cases, the survivors were only
nephews and nieces. During the lifetime of the decedent, practically
all of the properties were disposed of. Nung namatay, konting konti
nalang natira sa estate. Sabi ng mga heirs paano naman kami?
Wala nang natira, if those properties had not been disposed of
during the lifetime, we would have inherited them. Their problem is
Art.777 they are only entitled to such estate as existed as the
moment of death, because it is only at that moment where there is a
transmission of successional rights. However, if the survivors had
been compulsory heirs entitled to legitimes, thats a different story.

You would then have to go through the process of collation.
For there to be succession, it is not always required that you
actually see the person lying in estate. Sometimes, there can be
succession even in the basis of Presumptive death.
We remember the situations when a person is presumed dead
for purposes of succession:
We have Ordinary Absence and Extraordinary Absence.
Ordinary after an absence of 10 years, the absentee is
presumed dead. However, there is a provision intended for senior
citizens if you disappear after the age of 75, presumed dead only
in 5 years.
Extraordinary situation where a person disappears under
circumstances where there is great danger or risk of death (Art.
391), only 4 years.
Once the presumption has arisen, when is death deemed to have
occurred?
Ordianry at the end of the period
Extraordinary at the start of the period
Whether ordinary or extraordinary, you have to wait for the period
to expire before the presumption would arise.
Example: A rode an airplane on January 1. The flight is supposed to
be from Manila to Davao, but never reached Davao, and had been
missing ever since its departure. Despite searches conducted, it
could not be found. For purposes of succession, A is presumed dead
after 4 years. If asked kailan kaya namatay to? chances are, he
died on the same day, January 1, because an airplane cannot remain
indefinitely flying in the air. So the rule is based on common sense.
Page 3
Succession may be Testate, Intestate or Mixed.

Testate if it is based on a will.
Intestate if there is no will, or the same is void based on
the provisions of the law on intestate succession.
Mixed if partly by will, and partly by operation of law as
where the testator did not dispose of his entire estate by will. He
disposed only 40% of his properties by will, the rest had no
provision covering them in the will. Thus, the 60% will be
governed by intestate succession, the 40% percent, by his will.
Tandaan, wala na ngayon yung Contractual Succession,
with the advent of the Family Code. It was called as such because
it allowed the future spouses to give to each other properties mortis
causa through their marriage settlement. The settlement is a
contract, and yet under the old civil code, they were allowed to
give properties through each other. Wala na yan, yung tatlo nalang
(Testate, Intestate and Mixed).
Remember the distinctions between Heirs on the one hand,
and Legatees and Devisees on the other. Why? Because under
certain provision of succession, they are treated differently. So we
must know, is he an heir, legatee or devisee?
Some provisions where they are treated differently, and where the
legal consequences would be radically different:
Under the same provision, however, legacies and devises

will be respected as long as they are not inofficious. So, kung
nagkaroon ng Preterition, and you happen to be an heir, patay kang
bata ka, wala kang mamanahin. But if you happen to be a legatee or
devisee, meron ka parin makukuha.
Illustration: Assume X has one legitimate child - S. He dies with a
will where there are only two provisions: (1) I give my friend F
P10,000; (2) I give the rest of my estate to my friend G. Xs total
hereditary estate is P120,000 and S is not mentioned in the will.
Assume further that during the lifetime of X, he had given nothing to
S. How do we distribute the estate? Since there is preterition, we
have to apply article 854.
In the case of F, he is obviously a legatee. Therefore, under
854, his legacy will be respected if it is not inofficious. Out of
P120,000, the legitime of S is P60,000. The other half is the free
portion. A legacy or devise will be considered inofficious if it
exceeds the free portion. The legacy of F is thus valid, as there
would still remain P50,000 in the free portion. But to whom will the
remaining P50,000 go? To G, as provided in the will? Or to S?
Answer: To S. Why? Because under 854, once there is preterition, it
will result in the annulment of the institution of heirs. It is as if
nobody was instituted as an heir. Therefore G has no legal basis for
receiving anything, he ends up with nothing because he is considered
an heir.
Most important is Preterition under art. 854 the omission

of one, some or all of the compulsory heirs in a direct line will
result in the annulment of the institution of heirs.
Page 4
When is a person considered an Heir? If he is given the

entire estate or a fractional or aliquot part of the estate.
He is considered a Legatee if he is given, by way of will, a
specific or determinate item of personal property; and a Devisee if
what is given is a determinate item of real property.
In case there is preterition, I would rather be a legatee or
devisee, rather than an heir. However, it does not mean it is always
better to be a legatee or devisee.
Note that the general rule in 793 applies only to legacies

and devises. It does not apply to instituted heirs. Therefore, if the
testator says in his 1985 will I leave my entire estate to my friend
F and at that time his entire estate consisted of 5 cars. When he
died 20 years later, his entire estate consisted of 5,000 cars. How
many cars is F entitled to? 5,000 because in this case, F is not a
mere legatee or devisee, but an instituted heir.
When would it be better to be an heir? In cases of afteracquired properties, for example. These are the properties referred
to in article 793 those acquired after the execution of the will and
before the death of the testator. What is the rule? After-acquired
properties shall only pass thereby as if the testator had possessed
them at the time he made his will if it expressly appears upon the
face of the will that such was his intention.
Thus, the General Rule: they do not go to the testamentary
beneficiary concered. Exception: express provision of the will to
the contrary effect.
Suppose, in the will of X he said I give to my friend F, all
of my cars. At that time, he had 5 cars. Upon death, F is entitled to
5 cars. Suppose that after making the will, X acquired 4,995
additional cars, how many cars will F be entitled to? Still 5 cars,
applying the general rule. If X provided to give all his cars, as well
as any other cars which he may hereafter acquire, then it clearly
appears on the face that his intention is to give even the afteracquired cars.
Page 5
WILLS in GENERAL
What is a Will? Article 783 gives a codal definition it is an act
whereby a person is permitted, with the formalities prescribed by
law, to control to a certain degree the disposition of his estate, to
take effect after his death.
From the provisions, we can deduce certain fundamental
characteristics of a will:
It is a strictly personal act we have to do it personally and
cannot delegate its making to another, even with an expressed
power of attorney. It cannot be accomplished through the
instrumentality of an agent or attorney. The testamentary
disposition should come from the testator himself. As a matter of
fact, the testator is prohibited from making testamentary
dispositions whose validity or compliance will depend upon the will
of another person. For example, in article 787 the testator cannot
make a disposition in such a way that another person will have the
power to determine whether it shall be operative or not. You cannot
say in the will I hereby give my house and lot and farm in Bulacan
to my brother, provided my wife will agree.
Note the provisions of 786 the testator is permitted by the
law to give in general specific property or sums of money to a class
or a cause, and also to delegate the actual distribution to a third
person.
You can say I leave the amount of P100M for the street
children of Metro Manila. I leave the distribution of that amount to
my executor. Then the executor by himself can determine who the
specific street children to be benefited. But I cannot say I authorize
my executor to get from my estate as much as he may deem
necessary, and to distribute the same to the street children of

Manila. Hindi pwede yan, it must be specific property or sums of
money.
However, the moment that the testator refers by name the
testamentary beneficiaries, forget about 786. You apply 785 the
duration or efficacy of the designation of heirs, legatees and devisees
or the determination of the portions which they are referred to take,
when referred to by name, cannot be delegated to a third person.
So remember, in 786 the beneficiaries are specified cause
or class. In 785 the beneficiaries are specific names of institutions
or individuals.
Thus, You cannot say I hereby bequeath P100 M to San
Beda, UP and Ateneo, and I leave it to my executor to determine
how much will be given to each of them. Because the beneficiaries
were referred by name, 785 prohibits leaving to the discretion of a
third person the duration or efficacy of the designation or the
determination of the portions which the named beneficiaries will get.
There are two general types of ambiguity:

Patent ambiguity which is obvious or apparent from a mere
reading of the testamentary provision.
Ex.: (1) I give to two of my five brothers my house and lot
in Quezon City Malabo agad, sino dun? He did not even bother to
name who these two brothers are. Whatever happens, the principal
rule in testamentary succession is always the ascertainment of the
intention of the testator.
What is the solution? Intrinsic evidence, as well as
Extrinsic evidence, but excluding the oral declarations of the
testator. Intrinsic those found in the will itself, like the other
Page 6
provisions of the will. Extrinsic evidences other than the will itself,
but excluding the oral declarations of the testator. Hindi pwedeng
during the contest as to who the two brothers are, all five bothers
will be presenting 100 witnesses each, because it will be hearsay and
fundamentally dangerous and risky. At that point, the testator is dead
and in no position to object the witnesses.
What about letters? Pwede yan.
Latent those that are not obvious
Ex.: I give my first cousin Jose Santos my house and lot in
Quezon city. The provision is very clear. But assume, however, that
after the death lima pala ang first cousin nya na pare-pareho
pangalan Jose Santos? In some families there are certain favorite
names. What now? Same solution intrinsic evidence you read the
other provisions which may clarify the ambiguity. Or you may resort
to extrinsic evidence, but then again, excluding oral declarations of
the testator.
subsequent changes in the law, they will generally not affect the
validity of the will.
Exception if the subsequent law provides for retroactivity.
Exception to the exception even if retroactivity is provided for, if
in the mean time, prior to the effectivity of the new law, the testator
has died. Why? Because in that case, we apply 777, upon the death
of the testator, successional rights would have been transmitted and
are already in the nature of vested rights, which cannot be impaired
by a subsequent change in the law even where retroactivity is
provided for.
You give the words of the will their ordinary grammatical

sense. Technical words, you give them their technical sense
UNLESS it is clear that the will was prepared by the testator all by
his lonesome self and that he used certain technical words without
realizing the technical meaning of those words.
Recall the general rule that testacy is preferred over

intestacy. If there are two ways of interpreting a will, you avoid the
one which will result in intestacy. You always try to have testacy.
Note in 785 the validity of a will as to its form depends
upon the law in force at the time of execution. If there are
Page 7
TESTAMENTARY CAPACITY and INTENT
Basic Requirements:
At least 18 years of age hindi pwedeng kulang kahit na
ilang araw lang. The testator must have already celebrated his 18th
birthday. If the testator made his will two days before his 18th
birthday, that is not a valid will.
Must be of Sound Mind remember the codal definition of
soundness of mind under 799, specially paragraph (2) to be of
sound mind, all that the law requires is that the testator, at the time
he makes his will, should know:
(1) the Nature of the estate to be disposed of;
(2) the Proper objects of his bounty; and
(3) the Character of the testamentary act.
As long as the testator knows all of these three, at least in a general
way, then he has testamentary capacity.
The law is even more categorical in paragraph 1, it is not
required that the mind be wholly uninjured or unimpaired by
disease or any other cause. In other words, kahit na may konting
topak, pwede parin, as long as he satisfies the minimum
requirements in 799.
Nature of the estate the testator must know, in at least a
general way, what his properties are. He may remember that he has a
house and lot in Quezon City, even if he cannot remember the exact
address, it will be sufficient. He remembers that he has a substantial
deposit in a certain bank. He may not remember the exact amount, as
long as he knows that it is quite substantial, that should be
considered sufficient.
The presumption is always on the soundness of mind. We

can always invoke that presumption in our favor. But that is a
disputable presumption and may sometimes be reversed. When
will this be? If the testator, one month or less prior to the making of
the will, was publicly known to be insane. Then, the presumption is
that he was not of sound mind, and he who alleges otherwise would
have the burden of proof. In the same line, if the testator made his
will after he has already been placed under guardianship precisely
because of unsoundness of mind, then the presumption is that he did
not have soundness of mind at the time of execution of his will.
Proper Objects of his Bounty means that at the time of
the execution of the will, the testator must still know who are persons
closest to him, his close relatives, the individuals who, by nature of
their close relationship to the testator, would have the natural right
to expect something from him.
If at the time of execution, the testator could not even
recognize his own wife and children, then he would no longer be
capacitated to make a valid will.
Character of Testamentary Act he must know that he is
making a last will and testament. That it is this document which will
be used as basis for distributing his estate when he dies. He should
know that it should be within his power as testator to revoke his will
anytime before his death.
Supposing that a person believes in the existence of unseen
beings, for example dwarves or elves and even claims that he talks to
these creatures. Is he necessarily incapacitated to make a will? I do
not think so. Mere belief in the existence of these unseen spiritual
Page 8
beings will not necessarily render a person incapacitated to make a

will.
There is minimum, but no maximum age in making a will,
just like in marriage. Even if the testator is already 110 years old,
amoy lupa na, he can still make a valid will. He may be suffering
from a host of diseases, lahat ng klaseng sakit nasakanya
pneumonia, diabetes, heart condition, hypertension that does not
incapacitate him to make a valid will, as long as he is still able to
meet the basic requirements under 799.
How about drug addicts? YES, as long as at the time of
execution of the will, they still knew the nature of the estate to be
disposed of, proper objects of their bounty and character of the
testamentary act. The same thing may be said with respect to
alcoholics.
The capacity to make a will must be possessed at the time of
execution. As long as the testator was capacitated to make a valid
will at the time of execution, his will is valid, even if he subsequently
becomes incapacitated.
If X made a will at the age of 22, and at that time he was of
sound mind, but 2 years thereafter he became insane and had died in
the state of insanity, his will should be allowed. What matters is
when he made the will, he was fully capacitated to make one.
Conversely, if at the time of execution, the testator did not
have capacity, even if he subsequently acquires capacity, his will
remains invalid.
If X made his will at the age of 17, and he died 10 years later
at the age of 27, his will is invalid.
Page 9
FORM of WILLS
First rule is in 804. We do not have oral wills. All wills must
be in writing. The law does not specify the material to be used. In
the case of a holographic will, any material may be used. You may
write it on a piece of paper, on the ceiling, on a wall, anything, even
sa balat ng pakwan.
I remember a case in US, where there was a farmer tilling his
farm with a tractor. Perhaps the slope was just too much that the
tractor overturned and the farmer was pinned down and he realized
he was dying. And so, he got a sharp object and scratched on a metal
part of the tractor everything to my wife, placed a date and signed.
That is a valid holographic will.
With the technological advances we have, practically every
household has a video camera. Even then, it is not sufficient for a
person to simply dictate his will in a recorded video.
If there is a dispute later on, the people opposing the probate

of the will says this will is in English, the testator does not know
English. That would necessitate the presentation of evidence, which
can come from the outside, not necessarily from the will itself. The
petitioner may present witnesses who will testify that the testator
actually knew and spoke English that is admissible. Though not
necessary for the validity of the will, it would not harm to include a
statement which reads I hereby publish this last will and testament
in English, a language known to me.
In 804, the law is categorical when it said that the will must
be executed in a language or dialect known to the testator.
Therefore, if the will was written in English but the testator knew
only Filipino, but the lawyer who drafted the will fully explained,
translated and interpreted everything to the testator completely that
remains an invalid will. The law is not satisfied with mere
translations or interpretations. It must be in a language or dialect
known to the testator. Reason? No matter how good the interpreter or
translator may be, certain nuances of language are always lost in the
process of translation or interpretation.
It is not necessary, however, that the will itself should
contain a statement to the effect that it is in a language or dialect
known to the testator.
Page 10
Notarial Will
Found in 805 every will, other than a holographic will,
must be subscribed at the end thereof by the testator himself or by
the testators 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 first important thing we should remember in paragraph 1
is that: it tells us, in very clear language, that it must be subscribed
at the end thereof by the testator himself or by the testators
name written by some other person in his presence and by his
express direction. The requirement, therefore, for the subscription
or signing at the end of the will, is an essential requirement for
validity.
If the will is 5 pages, and the testator affixed his signature in
each and every page thereof in the left margin, but did not sign at the
end of the will, that is NOT a valid will, because it fails to comply
with an essential requirement.
Where is the end of the will? When the law mentions the
end of the will, it refers not to the physical end but to the logical
end. Meaning, after the last testamentary disposition.
So if there are 10 testamentary dispositions, the end of the
will is after disposition number 10. Sa baba nun is the end of the
will, that is where the testator should affix his signature.
The law allows the affixing of the testators name by a third
person, but remember the two requirements:
(1) it must be done in the presence of the testator;
(2) and by his express direction
Both requisites must concur, otherwise the will is void.
If the testator is Juan Santos, and the person requested by

him to write his name is Pedro Santiago, how should the latter
comply with 805?
He should not forget to write the testators name yun ang
pinaka importante. So, pwede nyang isulat Juan Santos - by Pedro
Santiago
If he wrote by Pedro Santiago only, without Juan Santos
that is NOT VALID. Maliwanag ang batas tastators name.
If he wrote only Juan Santos and did not bother to write his own
name, that is VALID, as long as in the attestation clause, the fact that
Pedro Santiago wrote the testators name in his presence and by his
express direction is stated. Otherwise, without this statement of fact
in the attestation clause, the will is VOID.
The testator is the one required to sign his will at the end and
on the left margin of all of the pages of the will. In signing his will,
the testator may use his usual signature. He can also use his initials
pag maraming pages yung dokumento, usually you dont use your
full signature in authenticating the pages of the document, you
simply use shortcuts like the initials.
If the testator happens to be a writer or artist, he can use his
penname. Or if he is a movie star, he can use his screen name rather
than his legal name that is permitted.
Can the testator use a nickname? For example the testator
only has 9 fingers because sinalag nya yung bolo nung kaaway nya,
and since then he was known as putol. Can he use that nickname
in the will? Yes. In the law on wills, signature is taken from the
word Signum which means sign or mark.
Can the testator sign the will with his thumb mark?
Pwedeng pwede yan. Kung gusto nyang medyo maiba, yung mark of
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his bigtoe ang ginamit nya pwede rin yan. Extreme example:
Supposing he is very romantic fellow, and he uses his lips with the
intent to sign the will with the imprint of his lips. Would that be a
valid will? Yes, as long as it can be established that he intended to
use that as his sign or mark.
A Notorial Will should have three or more credible
witnesses.
The law uses the adjective credible is it necessary,
during the probate of the will, that there must first be preliminary
proof that the witnesses are credible individuals in the sense that they
enjoy a high degree of respectability, reputation of probity and
honesty in the community? No. the SC held: when the law says
credible witnesses, it simply means qualified or competent. So
there is no need for a preliminary proof as to the reputation of the
witnesses.
Can there be more than three witnesses? Yes, even more
than 10, but should not be less than three. If it only has two
witnesses, that is not a valid will.
Paragraph 2 states that: the testator or the person requested by him to
write his name 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 testator and the witnesses are required to sign each and
every page of the will, except the last, on the left margin.
Supposing they wanted to be different, they signed on the
right margin. Pwede ba yon? Oo, pwede yon. They signed on the
bottom margin, or at the top margin pwede parin yon, as long as
each page has the marginal signature of the testator and the three
witnesses.
Supposing that it is a 5-page will which is perfectly
executed, except that on page 3, you dont find the signature of the
testator on any of the margins. Should the will be allowed?
In this connection, you have the case of Icasiano vs
Icasiano. In the case, the oppositor practically threw everything
against the petitioner. On page 3 of the original will, there was a
missing signature that of one of the witnesses. The oppositor
claims forgery on the signature of the testator, undue influence, fraud
and failure to comply with the formalities because the one witness
had no signature on page 3. The petitioner presented the duplicate
original, and such was perfectly signed by the testator and the
witnesses in all the places required. They contended that if the
original cannot be probated, then lets just probate the duplicate
original. The SC said: we are not convinced that the will is a forgery.
The mere fact that the oppositors alleged both fraud and undue
influence in one and the same opposition, simply shows how weak
their position is, because these two are mutually exclusive they
cannot exist together. If they are opposing the allowance of the will
because of the absence of signature of one of the witnesses on page
3, there is no reason why they should also oppose the probate and
allowance of the duplicate original, which, after all, contains all the
required signatures at all of the appropriate places. It would seem,
under the circumstances, that the failure of one of the witnesses to
sign on page 3 was simply due to inadvertence caused by the
simultaneous lifting of two pages.
Now, if youre asked a problem where page 3 of a 5-paged
will does not have the marginal signature of either one of the
witnesses or the testator, should the will be allowed? I submit that
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the ruling in Icasiano should be limited only to the precise

circumstances which are obtained in that case, and the more
important thing in the case is that there was a duplicate original.
There can be no doubt that there was a validly executed will because
of such duplicate original.
If, on the other hand, you only have one copy of the will, and
that single original copy lacks one of the required marginal signature,
I submit, following earlier rulings of the SC, the will should be
disallowed. In other words, the ruling in Icasiano has not done away
with the previous rulings of the SC in many cases where the will was
invalidated because of the absence of the required marginal
signatures. It should not be interpreted to mean that we can now do
away with the requirement of marginal signatures on each and every
page, as expressly mandated in 805.
All of the pages should be numbered correlatively in

letters placed on the upper part of each page.
The precise location of the numbering is NOT essential for
validity. If they placed the numbering on the lower part, left margin
or right margin, ok yun basta may numbering.
What is meant by numbering correlatively in letters?
You spell out, instead of simply writing the Arabic numeral. If you
want to follow the provision literally, you write the word one, next
page two yan ang correlative numbering in letters.
If the testator wrote the Arabic numeral 1 and 2, pwede
rin yan. That will not affect the validity of the will, you can even use
roman numerals, even letters of the alphabet, as long as there is
correlative numbering.
Supposing that it is a 5-page will, pages 2, 3, 4 and 5 are
numbered. Page 1 is not numbered, should the will be allowed? Yes.
Why? Because even if page 1 is not numbered, there can be no doubt

which is page 1 it contains the title of the document
The witnesses are required to sign, among other things, on

the left margin of each and every page of the will. Just like the
testator, the witnesses can also sign with their nicknames, thumb
marks, etc.. as long as in reality, they know how to read and write
because one of the requirements for witnesses is that they should
know how to read and write.
Would it make any difference if the witnesses signed the will
ahead of the testator? Example, the testator asked the witnesses to
sign ahead, and they all did, including in the attestation clause. Only
after they had signed, did the testator sign the will. Should that be a
valid will? I think the better view is that: as long as there is no
interruption, as long as everyone signed during one single continuous
occasion, the will should be VALID. Actually, the thrust of those
who believe otherwise is that: if the witnesses signed ahead of the
testator, they are actually attesting to a falsehood because they will
be signing in the attestation clause that the foregoing will was,
among other things, signed in our presence by the testator. Eh hindi
pa naman nagaganap yun because the testator has not yet signed. I
repeat, the better view, and the SC said so in Caneda vs CA, as long
as everyone signed during one single uninterrupted continuous
occasion, the will should be considered valid.
If, however, the testator invited the witnesses to his

residence on January 1, and asked them to sign his will without his
signature yet thereon. He then said lets meet again on January 6.
And it was on January 6 only when he signed the will. I submit, in
Page 13
that case, the will should not be allowed because it is clear that when
the witnesses attested the execution of the will, they were attesting to
a falsehood because the testator had clearly not yet signed as of
January 1.
If a third person has been asked by the testator to write his
name on the will under his express direction and in his presence, the
mere silence of the testator or his failure to object to the signing by a
third person is NOT the express direction contemplated by law.
If the testator is very sick, and his lawyer, who had earlier
drafted the will in accordance with his instructions, told the testator,
in the presence of the three witnesses Mr. Testator, I dont think
you are in a position to sign this will yourself. Unless you have an
objection, I will sign this will for you. Later on, the testator just
stared at the lawyer. Sabi ng lawyer O, wala syang objection, so I
will sign the will for him. That is NOT a valid will, there is no
express direction. Mere failure to object and mere silence is not
express direction.
The express direction, however, need not be done verbally.
If the lawyers asks the testator Mr. Testator, do you want me to sign
this will for you? and the testator nodded pwede na yon. That is
already an express direction.
It must be done in the presence of the testator. If the
testator orders his lawyer Atty, ipirma mo na pangalan ko dyan.
And the three witnesses were there, but it was too crowded in that
small hospital room so the lawyer and the witnesses went to another
room to sign. That is not a valid will because the signing by the third
person must be done in the presence of the testator.
Supposing the testator was really very sick, he dictated to his

lawyer the provisions of his will and the latter drafted. He then said
Atty, I want you to sign the will for me. The lawyer encoded the
will in his office and rushed back to the hospital with the finished
print, but upon return, the testator was already unconscious and sunk
into a comma. Inside the room of the testator, and with the three
witnesses, the lawyer affixed the testators name as was earlier
instructed to him. Is that a valid will? NO, because while it was done
in close proximity to the testator, the requirement of presence was no
longer satisfied. Why? The testator was no longer conscious of what
was going on. Presence requires not just physical proximity, the
absence of any obstruction, but also requires a consciousness or
awareness of what is going on.
The presence of the notary public is not required at the time

of the actual signing of the will by the testator and the witnesses.
When it comes to the acknowledgement of the will, syempre
nandun na yung notary public.
805 provides, in paragraph 3, the matters which are required to be
stated in the attestation clause. So what are these?
(1) the number of pages used upon which the will is
written;
(2) the fact that the testator signed the will and every page
thereof or caused some other person to write his name under his
express direction in the presence of the instrumental witnesses;
and;
(3) the fact that the instrumental witnesses signed the will
and all the pages thereof in the presence of the testator and of one
another.
Page 14
Supposing that an essential fact required is not stated in the

attestation clause, as it does not state the total number of pages of the
will is it necessarily invalid? Or is it still possible to probate that
will? If what is missing in the attestation clause can be found in
another part of the will, it may still be allowed. As long as what is
missing can be found in another part of the will.
For example: total number of pages is not stated in the
attestation clause, but in the notarial acknowledgement, it is stated
that is substantial compliance.
Supposing that the total number of pages is not stated in the

attestation, but in the last paragraph of the will, just above the
testators signature, it says ..my last will and testament consisting of
5 pages..., can the will be allowed? Yes, because while an element
is missing in the attestation clause, it is nonetheless, found in another
part of the will itself. In other words, there is no need to introduce
extrinsic evidence.
Supposing that the attestation clause does not categorically
state that the testator signed each and every page of the will, but
provides only that the foregoing will was signed by the testator.
Can the will be allowed? Yes, as long as each and every page of
the will, in fact, contains the testators signature. The failure to
state expressly that the testator signed every page of the will may be
deemed cured if, upon examination of the will, each and every page
thereof bares the signature of the testator.
But if what is lacking in the attestation clause is the fact that
the testator signed in the presence of the witnesses, that defect will
NOT be cured even if you find the testators signature appearing on
each and every page of the will side by side with that of the
witnesses. Because the mere fact that the signature of the testator
appears on each page beside the signature of the witnesses will NOT
prove that the testator affixed his signature in the presence of the
witnesses.
If, for example, the testator invites the three witnesses to his
residence on January 1, tells them I will make my will, and I want
you to be my witnesses. Here is my will, I already signed it, here is
my signature on each page and at the end. Is that a valid will? NO,
the mere admission or acknowledgement by the testator that the
signatures already appearing on the will are his, is not enough. The
law requires that the signature of the testator be affixed in the
presence of the witnesses.
When is there Presence? When there is close physical

proximity and the parties are situated in such a way that there is no
physical obstruction which would prevent one from seeing the other
by simply turning his gaze to the proper direction.
I am signing the will in this table, you are one of the
witnesses and you happen to be standing by the door inside the room,
and there was a commotion going on in the hall way, so you were
looking out. Is there signing in your presence? Yes. The law does not
require the testator and witnesses to actually see each other sign to
satisfy presence. All that is required is that they could have seen
each other sign, there being NO physical obstruction, by simply
turning their gaze towards the proper direction.
If the testator signed the will in the same room with the three
witnesses, but while the testator was signing, one of the witnesses
was busy watching a movie in the television or was busy texting so
Page 15
the testator signed without him looking. Is there signing in the

presence of that witness? YES.
If the testator is blind, how do we satisfy the requirement of

presence? Through the use of other senses. What other senses can
you possibly use?
Sense of touch Hindi naman kelangan akapin ng testator
yung witness habang pumipirma. He may hold the will while it is
being signed by the witness, and sense, through his fingertips, the
action being done by the witness. Or the witness may give him a
running account of what is going on.
805 says if the attestation clause is in a language not known to the

witnesses, it shall be interpreted to them.
Supposing that the attestation clause is in a language not
known to the testator, should the will be allowed? YES. While it is
not possible to have a notarial will without an attestation clause,
nonetheless, the fact remains that the attestation is the act of the
witnesses, not of the testator.
Assume a 5-page will. Page 5 contains only the attestation
clause. The testator signed at the end of the will on page 4, and also,
together with the witnesses, on the left margin of pages 1-4. On page
5, however, you only find the signatures of the witnesses. Should the
will be allowed? Yes. Since page 5 contains only the attestation
clause, the testator has nothing to do with that page.
Assume again a 5-page will. The testator and the witnesses
signed on the left margin of pages 1-5. The witnesses, however, did
not sign below the attestation clause, but only on the left margin of
the page containing the clause. Should the will be allowed? NO. It is
clear in Azuela case. As pointed out by the SC: without the
witnesses signature at the end of the attestation clause, the will is
void because the requirement for marginal signatures is a separate
distinct requirement from the requirement that there should be an
attestation clause. The signatures of the witnesses simply comply
with the requirement for marginal-signature. That is not compliance
with the requirement that there should be an attestation clause. An
attestation clause not signed by the witnesses is not valid the will
should also be considered invalid.
The will must be acknowledged before a notary public.

You dont have a valid notarial will without this.
The notary public need not be present at the time of actual
signing of the will by the testator and the witnesses. As a matter of
fact, it is perfectly valid if the date of the execution of the will stated
therein is different from the date of acknowledgement. The will can
be made today, and acknowledged a week later that does not affect
the validity of the will.
The notary public, before whom the will is acknowledged,
must be properly authorized to act. If the will is acknowledged
before a notary public in Quezon city, but his notarial commission is
for the area of Caloocan, that is not a valid will. Wala kang
karapatan mag notaryo sa labas ng teritoryo mo, otherwise the will
is void. This is because a notary public is bereft of power to perform
any notarial act outside the area of his notarial commission.
Nangyari na ito in the case of Guerrero, the notarial
commission was in Caloocan and it was acknowledged before him in
Quezon city that is clearly VOID.
Page 16
The notary public is not required to retain a copy of the

will or file one with the office of the Clerk of Court. Ordinarily,
when you acknowledge a document before a notary public, the latter
will get at least two copies. One, for his own file, the other to be
submitted to the Clerk of Court which issued its notarial commission.
The purpose is to preserve the secrecy of the will.
Not just the testator, but the witnesses as well, must
acknowledge before the notary public. However, they are not
required to do so in each others presence, unlike in execution
where everyone must sign in the presence of each other.
The testator can acknowledge on Jan.1, one witness on Jan.2,
another on Jan.3 still valid because presence is not required.
If one of the three witnesses is also a notary public who
notarized the will, that is not a valid will. Because the notary public
cannot dichotomize himself and assume two different personalities,
one as a witness, and another as the notary public.
If there are 4 witnesses, and the will is acknowledged before
one of them, then it can be valid because there are three other
witnesses to the execution of the will.
If the testator is deaf or a deaf-mute, 807 applies he must

personally read the will, if able to do so; otherwise, he shall
designate two persons to read the will, and to communicate to him in
some practicable manner the contents thereof.
It is the testator who will designate the two people who will
read the will, and thereafter, communicate to him the contents
thereof.
The law somehow assumes that some mode of
communication is possible between the illiterate testator and the two
persons. And while the law does not categorically so state, it is

understood that the two individuals will communicate the contents
one after the other. Hindi naman pwedeng sabay yung dalawang
tao nag kukumpas sa testator isa isa lang.
If the testator is blind, the will must be read to him twice

the law even specifies who should do the reading once, by one of
the witnesses, an again, by the notary public before whom the will is
acknowledged.
If the will is read only once to the testator, it is not a valid
will. It is not for the testator to waive a second reading that is a
mandatory requirement which must be complied with, otherwise
the will is invalid. The purpose is to prevent the commission of
fraud.
If the testator is illiterate, walang specific na provision, but I
submit: the same rule should be applied as with blind testators. Kase
ang illiterate testator, para din bulag yan. Kahit na ipag wagwagan
mo sa harap ng mata nyan yung will, hindi nya mababasa. Those are
just meaningless signs and symbols as far as he is concerned. So, the
will must be read to him twice.
Remember the case of Alvarado where the testator was
blind. The will was read only once. Not only that, it was not read by
the notary public nor by one of the witnesses. Ang nag basa was the
lawyer who drafted it, and yet the will was allowed. Why? Because
while the lawyer was reading the will, they were all sitting around
the table the notary public and the three witnesses and they each
had a copy of the will, so they were following the lawyers reading
word for word. After reading, the testator said that is my will, so it
was signed accordingly and acknowledged before the notary public.
Page 17
The Court said there was substantial compliance with the

requirement of the law, walang duda.
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 the requirements of 805 that is the
Doctrine of Liberal Interpretation.
Page 18
Holographic Will
A Holographic Will must be entirely written, dated and signed by

the hand of the testator.
If the testator does not have hands, and he uses his mouth to
write, can he make a holographic will? YES, hand of the testator
should not be taken literally.
If he uses his foot to write, it is still a valid holographic will.
Remember that you cannot have a valid holographic will
unless it is dated. It is not valid without a date.
Ideally, it should have a complete date, with month, day and
year. But, as already been held by the SC, even if only the month and
the year is indicated, that it sufficient, in the absence of any
indication of bad faith, forgery or fraud.
In one case, the date was written only as Feb/61 that was
considered as valid date.
The problem is when, supposing the testator made two wills
in the same month, parehong Feb ang date. How do you
determine which is the later will? No problem if the provisions are
consistent with each other. But supposing they are inconsistent?
The date may be placed anywhere in the will.
In the case of Labrador, there was not even a separate date.
It was simply mentioned in passing in one of testamentary
provisions. The SC said it was sufficient, the fact remains that there
was a date although it was simply mentioned in passing.
You also remember the requirements when it comes to the

probate of a holographic will as to the number of witnesses. Youll
find this in 811 if there is no opposition, at least one witness who is
familiar with the handwriting and signature of the testator must be
presented to identify the will. If there is an opposition, at least three
such witnesses shall be presented.
In an earlier case, the SC has considered the requirement of
three witnesses as merely directory. In the case of Azuala, three
witness rule in case of opposition is not mandatory. Why? Because
the availability of three witnesses who are all familiar with the
handwriting and signature of the testator is something which is not
totally within the control of the petitioner. For all you know, even if
the petitioner looks far and wide for such witnesses, he may not be
able to locate three who can truthfully assert under oath that they are
familiar with the handwriting and signature of the testator. That is
the reason why the law allows for the presentation of expert
witnesses.
In the later case of Codoy and Ramunal, however, the SC,
basing its decision on the use of the word shall, held that the
requirement was mandatory.
You cannot probate a holographic will unless you can
present either an original copy, or at least a photocopy. Why?
Because the only guarantee of authenticity of a holographic will is
the fact that it is supposed to be entirely written, dated and signed by
the hand of the testator. The court, therefore, must always be given
the opportunity to examine the will and determine whether it is in
fact in the handwriting and signature of the testator.
Can a blind man make a holographic will? YES, as long as he knows

how to write.
Page 19
If the one and only copy of a holographic will has already

been lost, so that there is no existing copy, notwithstanding that it
only had one provision and a number of people had seen it, forget
about the probate of that will. You need at least a photocopy,
otherwise forget about probate.
The testator may sign his holographic will, just like a
notarial will, with his full signature, initials, nickname, stage name,
etc.
When it comes to any Alterations or Insertions, however,

the law is categorical when it requires for any insertion or
cancellation or alteration in a holographic will, it must be
authenticated with the full signature of the testator.
Therefore, insertions, alterations or cancellations cannot be
authenticated by using any other signature than the testators full
signature.
Full signature means the usual customary signature of the
testator. It does not necessarily have to include the complete name
and surname only the usual and customary, as opposed to the
initial or shortened version.
Remember the provisions of 812 and 813 if the testator

makes additional dispositions in a holographic will, the additional
dispositions must be signed and dated; otherwise they are not valid.
Where should the testator sign his holographic will? The law
does not categorically state, unlike with notarial will, where the
signature must be. But 812 indicates where the testator should sign.
Why? Because it says dispositions in a holographic will appearing

or written below the signature of the testator must be dated and
signed in order to be valid as testamentary dispositions.
In other words, the law assumes that the last thing you will
find in a holographic will is the testators signature. That is the
reason why the law makes the testators signature the point of
reference in so far as additional dispositions are concerned.
So, just like a notarial will, although the law does not
specifically states, the testator should also sign at the end of the
holographic will or after the last testamentary disposition.
If the testator made the following will:
May 7, 1985
I give everything to Sheryll Gonzales
Signed: Bjone Favorito
That would be a valid holographic will.
If he makes additional dispositions
I give P10,000 to Aldrian David
I give my house to Cromwell Recto
These two additional dispositions are NOT valid. Why?
Because the law requires that they should be dated and signed. The
fact that they are not valid, however, does not affect the validity of
the will it remains valid.
Supposing that the first and second disposition is signed but
only the second is dated. Both dispositions are valid. Since the
preceding disposition is signed but not dated, the date appearing on
the last disposition will operate to validate the former. Reason? The
law can assume that these two dispositions were actually made at the
same time.
Page 20
If the preceding disposition, however, is dated but not

signed, and the last disposition has both a date and a signature, only
the last disposition is valid. The former will not be validated.
The provision provides if the preceding disposition is
signed but not dated, and the last disposition has both a date and a
signature, all of the preceding dispositions signed but not dated, will
be validated.
The reverse is not true if the preceding dispositions are
dated but not signed, the last disposition, even if both dated and
signed, will not validate the former. Why? Because in this case, the
law cannot assume that they were made at the same time may
kanya kanyang petsa.
As previously mentioned, any insertions or cancellations in a

holographic will must be authenticated with a full signature of the
testator.
In our previous example, let us assume that Bjone crossed
out the name of Sheryll and inserted Anne, ang lumalabas, he
wants his heir to be Anne Gonzales instead of Sheryll. However, he
does not authenticate it with his full signature. Who will be
considered as the duly instituted heir? Answer is NEITHER of them.
Why? In the case of the insertion of Anne, that is an obvious
invalid insertion because of the absence of authentication. So cant
we consider the cancellation of Sherylls name an invalid
cancellation and treat it as if she is still the instituted heir? The point
is that the principle rule in testamentary succession is always the
ascertainment of the intention of the testator. If we give the entire
estate to Sheryll by invalidating the cancellation for lack of
authentication, we will be ignoring the obvious change of heart on
the part of the testator, and that cannot be done.
If a third person makes an insertion in a holographic will, what will

be the consequence?
Tolentino says there are four possible scenarios:
(1) Insertion is without the knowledge and consent of the
testator you simply ignore the insertion, as if it was not written
and the will remains valid
(2) Insertion is with the consent of the testator the will
remains valid but the insertion is void.
(3) Insertion is with consent and was authenticated by the
testator with his signature the entire will is void.
Reason by authenticating the insertion made by the third person,
the insertion becomes a part of the will, thus, will no longer satisfy
the fundamental requirement that it should be entirely written by the
hand of the testator
(4) Insertion is simultaneous with the execution of the will
the entire will is void; same reason as (3).
If a holographic will has some provisions which contains
alterations that are not duly authenticated, you only invalidate the
affected provisions or the particular insertions concerned. The other
provisions which are not altered will remain valid.
Page 21
With respect to the applicable law if a Filipino wants to

make a will here in the country, he can only follow one law the
Civil Code of the Philippines.
What is a Joint Will? It is a single will executed by two or

more testators. The use of a single sheet of paper does not
necessarily make it a joint will.
If a Filipino is abroad and he wants to make a will, what

formalities can he observe? He can observe the law of the place of
execution Lex Loci Celebracionis applying 17 and 815 of the
NCC: the forms and solemnities of contracts, wills, and other public
documents shall be governed by the law of the place where they are
executed.
If H wrote his will on a paper, and on the back page, his wife
W wrote her will, that is not a joint will. Those are two separate
distinct wills. But if they wrote only one will and they both signed it,
it is prohibited and void for Filipinos, even if you execute it at a
place where joint wills are allowed.
If the Filipino is abroad, can he make his will in accordance

with the formalities prescribed by the Civil Code? Yes. The Code
does not categorically and expressly authorize Filipino citizens
abroad to make their wills abroad in accordance with the formalities
prescribed by Philippine laws, but it allows foreigners who are
abroad to make their wills in accordance with the formalities
prescribed by Philippine laws. If foreigners are allowed to make their
wills abroad as such, there is no reason why Filipino citizens abroad
should not be allowed to do the same.
If an alien is here in the Philippines and he wants to make a
will, what formalities can he follow? Those prescribed by Philippine
laws or those of his own country.
An alien abroad, however, has four choices: (1) laws of his
nationality; (2) those of his domicile; (3) laws of the place of
execution; or (4) those prescribed by Philippine laws.
However, when it comes to Filipino citizens, regardless of
where they may be, they can never make a joint will. Basta pinoy ka,
kahit sang lupalop ka pa ng mundo mag punta.
Assume that spouses H and W executed a joint will while in

Brazil where joint wills are valid for spouses. Valid? Nope, void.
Supposing, however, that W is a Brazilian model and H is a
Filipino. While in Brazil, they made a joint will. Is it still void? Valid
in so far as W is concerned, but void as to H.
If both of them are Brazilians, we can recognize the joint
will.
If both of them are Brazilians but they made the joint will
here in the Philippines, can we recognize it? Two views: (1) Void for
being contrary to public policy; (2) Valid NCC allows foreigners in
the Philippines to make a will in accordance with their national laws.
What about the intrinsic validity of wills? It is always the
national laws of the decedent which must be followed.
Remember the four aspects of succession which are
ALWAYS governed by the national law of the decedent:
The first three in Art.16, the fourth in Art.1039: (1) order of
succession; (2) amount of successional rights; (3) intrinsic validity of
testamentary provisions; and (4) capacity to succeed.
Regardless of what the testator may say in his will if, for
example, a Korean testator wants his estate to be distributed under
Philippine laws, it will still be Korean Law which will govern.
Page 22
WITNESSES to WILLS
an heir. There would, just the same, be the temptation to testify

falsely because he would have an economic interest in the allowance
of the will.
What are the Qualifications?

(1) Sound Mind
(2) Not less than 18 years of age
(3) Able to read and write
(4) Not blind, deaf or dumb
(5) Domiciled in the Philippines
(6) Not previously convicted of falsification, perjury or false
testimony
The enumeration of the persons in 823 is exclusive. Sino

lang yan? the witness, his spouse, parent or child.
If, instead, his grandfather was the one given a legacy or
devise that should be considered valid.
823 if there is a legacy or devise in a will given to one of the

witnesses to that will, or to his parent, spouse or child, that legacy or
devise is considered void, insofar as that witness, his spouse, parent,
child or anyone claiming under them, is concerned; unless there are
three other competent witnesses to the execution of the will.
If A, B and C are the witnesses to the execution of the will of
X, and in that will, X gave A a legacy of P50M the will is valid.
A remains a qualified witness pero sorry nalang sya, he will not be
able to get that legacy even assuming that the estate has sufficient
assets. Under 823, that legacy is considered void.
The purpose is to remove any temptation on the part
witnesses, who may have been given something under the will, to
testify falsely.
Supposing that instead of being given a legacy or devise, one
of the three instrumental witnesses is instituted as an heir. In the
previous example X says I give A 1/8 of my estate. Will A be able
to get his share? He will not. Although the law expressly mentions
only legacy or devise, there is no reason why 823 should not apply to
Page 23
CODICIL and INCORPORATIONS by REFERENCE
Ano yang Codicil na yan? It is a supplement or addition to

a will, whereby the provisions in an earlier will are added to or
modified, altered or explained.
You only make a codicil if you already have a will. The
execution of a codicil presupposes that there is a previously existing
will, which you then supplement through such codicil.
Formalities? Same as with wills. Therefore, you can either
make a Notarial Codicil or a Holographic Codicil.
If the will which you want to alter is notarial, it does not
necessary follow that the codicil should also be notarial.
A notarial will can be modified by a holographic codicil and vice
versa.
Ano naman itong Incorporation by Reference? This is
merely for the convenience of the testator. Lalo na yung
sangkatutak ang mga pagmamayari. If they already have existing
lists or inventories of properties with proper descriptions, they dont
have to actually reproduce this long list in their last will and
testament. They can simply incorporate them by reference under the
provisions of 827.
Remember the requisites for a valid incorporation by reference:

(1) the paper or document to be incorporated must already be
in existence at the time of the execution of the will;
(2) the will must clearly describe the paper or document,
stating, among other things, the number of pages thereof;
(3) it must be established, by clear and satisfactory
evidence, as the paper or document referred to in the will;
(4) the paper or document must be signed by the testator
and the witnesses on each and every page, except in the case of
voluminous books of accounts and inventories.
Because of the fourth requirement, the question has arisen:
Can there be incorporation by reference in a holographic will? Some
say NO, because there are no witnesses in a holographic will. But
what if there are witnesses? Its possible for a holographic will to
have witnesses, and their presence does not invalidate it and merely
considered as surplusage.
Still, others maintain: while it is possible to have
incorporation by reference in a holographic will, it is necessary that
the paper and document should also be entirely in the handwriting of
the testator. Upon incorporation, the paper or document will be taken
as part of the will. If what is incorporated is not in the testators
handwriting, it may affect even the validity of the holographic will
itself.
At any rate, that is one of the open questions and disputed
points in succession.
Page 24
827 or incorporation by reference should never be used for the

purpose of incorporating testamentary provisions for they must
always be contained in the will itself. Those will not be valid
testamentary provisions.
Example, you typed testamentary provisions which you
intent to include in your will. 10 years later, you decide to finally
make your will. So you went to your lawyer and said gagawa tayo
ng will, ito na mga provisions na gusto ko, nagawa ko na dati pa.
Sabi ni lawyer Sige, lets just incorporate them by reference. that
is not a valid incorporation. Those provisions are invalid because
when it comes to testamentary provisions, they must be contained in
the will itself.
Page 25
REVOCATION
The right to revoke a will is one of the basic prerogatives of

a testator. A will is essentially revocable being ambulatory in
character. As long as the testator lives, he can revoke it anytime and
he does not even need any reason for it. All that is necessary is that
he intends and actually revokes his will.
There are various ways of revoking a will:
(1) By implication of law;
(2) By executing another will or codicil or other writing
executed as in the case of wills;
(3) By physical act of destruction coupled with intent to
revoke Animus Revocandi. And the law specifies four physical acts
of destruction: (a) burning; (b) tearing; (c) cancelling; and (d)
obliterating. The enumeration is exclusive.
By implication of Law you find these instances scattered in the
provisions of the Civil Code and Family Code.
Examples:
Legal separation the provisions in the will of the innocent
spouse in favour of the guilty spouse are revoked by operation of
law, but not vice-versa.
In preterition the institution of heirs is revoked or
annulled where there is complete omission of one, some or all of the
compulsory heirs in the direct line.
In legacy of a credit or remission of a debt and the testator
brings an action against the debtor, the legacy of credit or remission
of the debt is revoked.
In case of transformation, alienation or loss of the thing
under 957 that results in the legacy or devise becoming ineffective.
In case there is unworthiness under 1032 the unworthy

heir cannot inherit. The provisions in his favor are rendered
ineffective.
When both spouses contract the marriage in bad faith
under 44 of the Family Code.
When the marriage is declared void ab inito under 50 of FC.
By another will if you execute another will expressly revoking a
previous will or if there are inconsistencies between an earlier will
and a subsequent will.
By the physical acts of destruction
there must always be the corresponding intent to revoke. A
physical act of destruction without a corresponding intention to
revoke will not produce a valid revocation.
If the testator, while looking for something to start the fire in
his kitchen in order to cook, inadvertently burned his will that is
not a valid revocation, there is no intent to revoke.
Conversely, not all of the intention, without the
corresponding physical act of destruction, will produce a valid
revocation.
If the testator, fuming mad and angry with his heir, calls his
neighbors and says I am, as of this moment, revoking this will. My
heir will not inherit under this will. Dinuraan pa nya yung will, and
then he suddenly collapse suffering a massive heart attack there is
no valid revocation. He may have the intention but it must always be
coupled with the physical act of destruction of burning, tearing,
cancelling or obliterating.
If the testator, with all due solemnity, gathers all his friends
and says I am revoking this will. Patay na ito. Ililibing natin
Page 26
ngayon. and he digs a hole and buried the will. Is there a valid
revocation? NO, there is no physical act of destruction. Burying is
not one of the acts mentioned.
Although in one case, the SC considered the act of
crumpling the will and throwing it as sufficient to produce a
revocation. But civilists have agreed, the enumeration is really
exclusive.
To revoke a will by burning, you dont have to completely
burn the will. Even if only the edges are burnt in such a way that not
a single word of the will was affected by the fire that is considered
already as sufficient to revoke.
When it comes to tearing, the slightest tear is sufficient as
long as it is coupled with the necessary intent to revoke. Even if the
tear extended only up to the margins, and not a single word was
affected by the tearing that will produce a valid revocation.
Instead of tearing, you can use a paper shredder revocation
din yan, or you can use a pair of scissors.
How do you revoke a will by cancelling? By crossing out
the lines. How does cancelation differ from obliteration? In the
latter, the words can no longer be read binubura. In cancellation,
they are simply crossed out with whatever lines you may use crisscrosses, spirals, etc.
As a matter of fact, one of the simplest ways of revoking a
will through cancellation is by crossing out the signature of the
testator at the end of the will. In a very real sense, you strike at the
heart of the will that will operate to revoke the entire will.
However, writing the word cancelled along the margin of
the will is revocation not by cancellation, but through other
writing.
In connection with revocation, it is entirely possible that the

testator may have made several copies of his will, which is usually
the case. If he wants to revoke his will, does he have to retrieve all
copies? No, he can simply destroy the copy that he has that will
produce a valid revocation.
Supposing that the testator changes his mind while revoking
his will. He has instituted you as heir to the bulk of his estate. When
you visited him to have a chat, you started discussing but at a certain
point you disagreed to something kung mas masarap kainin ang
isda kung may kamatis o sibuyas. Before you knew it, you were both
shouting at each other. Napikon ang testator, he got his will, waived
it in front of you and said you are not going to inherit a single
centavo from me. He tore the will once, then threw the pieces to the
floor. At that point you realized what had happened, so you begged
for forgiveness and said Please do not revoke your will. The
testator had reconsidered and said sige pulutin mo yung will and lets
use scotch tape to paste them together. Can that will still be
allowed? NO, because when the testator changed his mind, the act
was already subjectively complete. His act of throwing the will to
the floor shows that, insofar as he is concerned, consumatum est
natapos na, he did not intend to go any further, thus, it is already a
completed act. If he changes his mind at that point, it is too late. You
cannot restore validity to a will, which has already been revoked by
tearing, by simply taping the pieces together Humpty Dumpty rule.
Supposing, however, that the testator was still in the process
of revoking his will, tearing the will three times and about to make a
fourth one when you pleaded to him, and he stops. He forgives you
and said lets tape the pieces together. Can that will still be
allowed? YES, because the act was not yet subjectively complete
when the testator changed his mind. He intended to tear it the fourth
Page 27
time when he was prevailed upon not to do so. Therefore, if the

testator changes his mind at the time the act was not yet subjectively
complete, there is no valid revocation.
Another rule we have to remember is the Doctrine of Dependent

Relative Revocation.
If the testator revokes a will with the present intention of
making a new one immediately and as a substitute, and he is unable
to make the new will or, able to do so, but the same fails to take
effect for any reason or cause, it is presumed, in the absence of
evidence to the contrary, that the testator would have preferred his
old will rather than intestacy.
In other words, when the testator revokes his will under this
doctrine, he does so conditionally. Ano ang condition? That a new
one will be effective. Kaya kung hindi sya nakagawa ng bagong will,
or if the new will fails to take effect, then it is presumed that he
would rather die with his old will than to die intestate.
Best illustration is the case of Molo vs Molo, which is a very
old case but up to now is still the best illustration of this doctrine.
Here was a man who made his first will in 1918. In that will,
he gave practically his entire estate to his wife. In 1939, he made
another will where he expressly revoked his earlier will but still
giving the bulk of his estate to his wife. After he died, the wife
presented his 1939 will for probate. Unfortunately it was disallowed
by the probate court for failing to comply with the formalities
prescribed by law. She then returned with the 1918 will, but could
not present the original copy. The best she could produce was a
duplicate thereof. The oppositors claims that the reason why she
could not present the original was because her husband already
revoked it by destroying the original copy. The SC held: even

assuming that the oppositors claim was true, under the doctrine of
dependent relative revocation, it should be understood and presumed
that the revocation of the 1918 will was conditioned upon the
effectivity of the 1939 will. Since the later will failed to take effect, it
is presumed that the husband would have preferred his 1918 will to
intestacy.
Another point sometimes revocation may be presumed
depending on the circumstances.
For example: There is evidence to the effect that the will was
in the possession of the testator. After the death of the testator, the
will is found among his possessions in a tattered and torn condition.
The presumption is that the testator revoked his will.
Or if, after his death, the will could not be found, and there
was evidence that he was the one in possession of it, it may be
presumed that the testator revoked his will.
You also remember 833 a revocation based on a false or illegal
cause is not valid.
The important thing here is that: before you can invoke 833,
it is necessary that the cause for the revocation must be stated in
the will.
If the testator simply revokes a will, even assuming that the
cause for the revocation is false or illegal, but did not state the cause
in the will itself, there will be no basis for any invocation of 833.
Example: The testator instituted his friend X as heir to the
bulk of his estate in his 1995 will. 10 years later, the testator heard
that X was already long dead. Thinking that this was true, he makes
another will in 2005 and said I hereby revoke my 1995 will. After
the death of the testator, X appears and learns of the revocation, and
was told by the testators close friends that the only reason why the
Page 28
testator revoked his old will was because of the erroneous belief that
X was already dead. Can X question the validity of the revocation?
NO, there is no basis, because the testator simply revoked his will
without stating the cause therefore, thus, no basis for invoking 833.
Even if a will is revoked, any recognition of an illegitimate
child contained in that will is not affected, because the recognition of
an illegitimate child is not in the nature of a testamentary disposition
subject to the sole will of the testator. Recognition creates a status,
thus, there must be a certain element of stability, insofar as the status
of individuals is concerned.
Page 29
REPUBLICATION and REVIVAL
and the 1990 will, which is to be given effect? The 1985 will,
because it is now the later expression of the testators will due to
republication.
Republication is brought about by the act of the testator, while

Revival is brought about by the law.
Remember that republication through a codicil is not possible if the

earlier will is void because of form.
Remember the two ways of republishing a will:

(1) By executing a codicil to the will being republished
the will is republished as modified by the codicil.
(2) By reproducing the provisions of an earlier will in a
subsequent will. If the previous will is void as to form, the only way
of republishing the provisions contain therein is by copying them in a
new will. You cannot republish the provisions contained in a will
which is void as to form by simply executing a codicil to that will.
Thus, in the previous example, if the testator made his 1985

will when he was only 16 years old. In 1992, he makes a codicil
modifying the 1985 will. Is the 1985 will republished? YES, it is not
defective or void as to form, only the capacity is the problem. The
republication is valid.
If, however, the 1985 will does not contain an attestation
clause, it is not possible to republish it through a codicil. Kung gusto
mo i-republish, youll have to copy those provisions in a subsequent
will.
What is the effect of republication?

A will which is republished by a codicil speaks as of the date
of the codicil. In other words, it is as if the will was made at the time
of the execution of that codicil, and that may have some legal
consequences.
Lets assume that the testator made his will in 1985. He
makes another will in 1990. Further assume that the provisions of
these two wills are inconsistent with each other. If the testator dies
with these two wills, which one will be given effect? Of course, the
1990, because it is the later expression of the testators intent.
Lets assume, however, that in 1992, the testator made a
codicil saying I hereby modify the following provisions in my 1985
will. What is the effect? The mere execution of the codicil has the
effect of republishing the 1985 will as modified. This means, it is as
if the 1985 will was actually made in 1992. Assuming there are still
irreconcilable conflicts between the provisions of the modified will
When it comes to revival, isa lang naman provision dyan, yung 837.
The only thing you ask yourself is this: How was the first
will revoked by the second will? If the first will was expressly
revoked by a second will, forget about revival. Even if the second
will is itself revoked by a third will, the first will not be revived.
If, however, the first will is merely impliedly revoked by a
second will, then the moment the second will is revoked by a third
will, the first is revived.
Page 30
ALLOWANCE and DISALLOWANCE
There are some important points which I want to emphasize:

1. Probate is mandatory as long as person dies leaving a will, the
probate of that will is mandatory. An unprobated will does not
produce any effect. Why mandatory? It is a matter of public policy
designed to protect not only the interest of the heirs and other
beneficiaries under the will, but also to protect the interest of the
testator. If it is not mandatory, nobody will bother to make a will
anymore if your relatives can simply disregard the will and youll not
be in any position to protest, you are 6 feet below the ground.
2. Probate is imprescriptible there is no time limit for the
institution of probate proceedings because the law itself mandates the
probation for being a matter of public policy, thus, the same law
could not have set any time limit. Otherwise, that public policy
would be defeated.
3. There are only three matters which can be properly inquired
into by the probate court during the probate proceeding proper:
(1) Capacity Did the testator possess the necessary
capacity when he made the will?;
(2) Identity Is this document really the last will and
testament of the testator?;
(3) Due Execution Were the formalities prescribed by law
for the valid execution of a will followed?
Yan lang tatlong bagay ang pwedeng pagusapan during the probate
proper.
At that point, it is not proper for the probate court to inquire

into the intrinsic validity of the testamentary provisions.
Under exceptional circumstances, however, the SC has
allowed a departure from that general rule. When would that be?
Where it is obvious that a testamentary provision is clearly void, and
a probate would be a waste of time because the only provision in the
will happens to be void.
The best example is the case of Nugid the testatrix, in a
very simple will, gave her entire estate to one of her siblings. Yun
lang ang provision. The parents of the testatrix were still alive and
were not mentioned in the will, they were clearly preterited. The SC
held that it is useless to go ahead with the probate of this will
because it is already clear that the only provision in that will is not
effective for preterition. Bakit pa tayo mag sasayang ng oras? You
might as well decide, on the basis of what appears in the face of the
will, whether or not the institution of that heir is valid.
Another illustration is the case of Nepomuceno here was a
married man. The problem was that he had a mistress of long
standing for about 20 years. When he made his will, he named his
mistress and gave her certain properties. The order of the court for
the probate of the will was appealed. CA held: the will is valid, but
this provisions in favor of the mistress are void. The mistress went to
the SC, claiming that the CA was erroneous because at this point
only, they should not be resolving the instrinsic validity of the
provisions in her favor. The SC held: the CA did not commit an error
because it was plain, upon the face of the will, that the provisions in
favor of the mistress are null and void. Under 739, you cannot donate
to people whom you are guilty of adultery or concubinage, and that
article has been incorporated by reference in the law on testamentary
dispositions.
Page 31
Probate may be Post-Mortem during the lifetime of the testator, or

Anti-Mortem after his death.
There are certain advantages and disadvantages in both.

If you probate your will during your lifetime, the advantage is that if
there are any defects in the will, you can still correct your will or
make a new will if what you had done turns out to be invalid. The
disadvantage, however, is that there is premature disclosure of the
testamentary dispositions. So yung mga kamag-anak mo malalaman
na kung ano lamang ng will mo, and if some of them feel that they
have not been given a fair share, baka mapadali ang meeting mo
with the Lord.
Once a will has been allowed, or the allowance of the will
has attained finality, that is conclusive as to its due execution.
Meaning, it cannot be disputed later on, whether it is invalid or a
forgery.
Classic illustration of the application of this principle is
Mercado vs. Santos there was woman who died. Her husband
presented her will for probate and was allowed by the probate court.
16 months later, the relatives of the wife instituted criminal
proceedings against the husband, alleging that he is guilty of
falsification for forging the will of his wife. The SC held: it is too
late in the day, because the probate of the will is conclusive as to its
due execution. That means it necessarily includes the authenticity of
all the signatures appearing in that will.
The provision of a will cannot be the subject of a compromise

agreement.
The Court made it clear in Rabadilla vs. CA. Why? Because
the will is the expression of the intention of the testator as to the

manner in which he wants his property to be disposed of. His wishes
must be strictly followed. If a compromise agreement will be
allowed, providing for a different manner of division, that will defeat
the purpose of making a will.
Grounds for Disallowance of a Will

These grounds provided under 839 is exclusive. There are no other
grounds aside from those mentioned therein.
In connection with undue influence, when is this present?
You will notice that this is also a cause for vitiation of consent in
contracts.
If you look at the decisions of the SC, it is very difficult to
find a case where they actually found undue influence.
In succession, as far as I know, there was only one case
where they found undue influence. I refer to the case of Revilla vs
CA, which I can be discussing later. Why is this so? Because man is
a social being, we do not live in isolation from each other. As a result
of our daily interaction with different people, we are bound to
influence other people in the same way that other people are bound
to exercise some measure or degree of influence over us. But as long
as the influence does not overpower our own will, and it is not
subjugated by the will of another, there is no undue influence.
A father has four children A, B, C and D. After his death,
it is discovered that in his will he gave A, B and C only their
legitimes and gave the rest to his youngest, D. The distribution is
obviously unequal. Will the mere inequality of distribution, by itself,
prove undue influence? NO. The SC had pointed it out in Icasiano.
Page 32
Why? Because the principal reason why people make wills, is

precisely because they do not want their legal heirs to inherit equally.
If you are a parent who wants your children to inherit equally, why
bother to make a will? You might as well die intestate because, under
the rules of intestacy, your children will inherit equally.
Supposing in the previous example that it can be proved,
through the testimony of neighbors, that the testator made his will
while he was living with his youngest son D. There is even testimony
to the effect that the neighbors would constantly hear D pleading
with his father to give him more than his brothers. Will that establish
undue influence? NO, as long as there is no evidence that would
show that the father lost his freedom of choice.
In the case of Revilla, was an old man, Don Cayetano
Revilla, who was the owner of valuable pieces of real estate here in
Metro Manila. He was not married, and his closest relatives were his
nine nephews and nieces who were all siblings. Don Cayeto made a
will which was presented for probate and allowed during his lifetime.
In that will, everything was divided fair and square, he gave each of
his nephews and nieces 1/10 of his estate, the remaining 1/10 was
dedicated for the upkeep and maintenance of a chapel in Bulacan.
After his death, the eldest nephew suddenly came out with a
supposed second will where Don Cayetano supposedly gave the
eldest nephew anything, and nothing to any of his siblings, not even
for the chapel. However, it was established that at a certain point,
that eldest nephew was able to take full control over Don Cayeto.
There even was a point when he isolated the old man from his
brothers and sisters, took him to a certain residence where no one
could not visit him. The other siblings, at a certain point, even had to
secure a court order to visit him. The SC held: here is a case where
there was undue influence when the eldest nephew took control of
the old man. And that undue influence was, in turn, used by him to
foist the fraud upon the old man, to make him sign that supposed
second will, without the old man realizing that he was signing
another last will and testament. Moral of the story? Moderate your
greed.
There was this rather humorous case where a will was

disallowed. Kaso ng katangahan. I refer to Calde vs CA a will was
presented for probate. Of course, in probate, the three witnesses were
called to testify. All three witnesses were asked how many pens were
used in signing the will. All of them, one after the other, answered
just one. The will was disallowed because, looking at its face,
kitang kita mo na ibat ibang tinta ang pinang pirma dun sa will, e
hindi ba naman katangahan yun? What was the consequence? The
Court said those three witnesses were not really present when the
will was signed, otherwise they would have known that more than
one pen was used.
Page 33
INSTITUTION of HEIRS
You can have a valid will even if nobody is instituted as heir.

In other words, you can simply give out your properties through
legacies and devises. But of course, it is always better if you institute
somebody as an heir, especially to the net remainder of your estate,
because you can never anticipate what your properties will be at the
time you die. If you make a will, you do not die the next day. It
would probably take another 10 or 20 years before you finally kick
the bucket. In the mean time, you may acquire other properties, so
you could not properly foresee exactly what properties you may
acquire later. Otherwise, there is a great possibility that several of
your properties will pass to your legal heirs through intestate
succession.
To have a valid institution of heirs, it is not really essential
that you include the complete name and surname of the heir. The
rule of thumb is: as long as it is possible to determine the identity
of the heir by some event or circumstance that would be a valid
institution.
For example I give the entire free portion of my estate to
the incumbent president of Lex Leonum Fraternitas at the time of my
death Sino yun? Hindi naten alam. But there is an event or
circumstance by which the identity may become known.
Supposing that the institution is super malabo I give of
my estate to some Leonum members sino yung some na yun?
That is considered as a disposition in favor of an unknown person.
That disposition is void, and the properties given to these unknown
persons will instead be merged with the mass of the estate and given
to the legal or intestate heirs of the testator.
You remember that under 786, the testator can make a

disposition of specific property or sums of money in favor of a class
or a cause.
I leave P50M for the charitable institutions in Metro Manila
pwede yan.
I give P10M for the street children of Manila pwede yan.
Remember the rule of equal division under 846 heirs instituted
without designation of shares will inherit equally.
However, the legitimes should always be protected.
Assume that X, the testator, says in his will I hereby
institute A, B and C as my heirs. X does not have any compulsory
heirs. The estate is P120,000. Since A, B and C had been instituted
as heirs without designation of shares, we apply the rule on equal
division. They will inherit equally P40,000 each.
Suppose that A is actually a legitimate child of the X. In that
case, do not make the mistake of applying 846 directly, otherwise it
will result in the impairment of the legitime of A.
As a compulsory heir, A is entitled to of the estate P60,000.
What do you do with the P60,000 free portion? That is where you
apply the rule on equal division P20,000 each for A, B and C.
If X institutes A, B, C and the children of D as heirs, and
D happens to have 3 children E, F and G, the heirs collective
designated are considered individually instituted. Meaning, you
divide P120,000 by 6. Each of them receives 1/6, because although
E, F and G have been collectively designated, they are deemed
individually instituted.
Page 34
Let us assume that X says I institute A, B, C and D as my

heirs. A will get , and B will get of my estate. How will we
distribute the P120,000? Since he specified the shares of A and B,
then we follow the will A will get P60,000, B will get P30,000.
We apply the rule of equal division to the remainder the remaining
P30,000 will go to C and D in the amounts of P15,000 each.
Supposing that X says I institute A, B, C and D as my heirs.
A will get , B will get , and C will get . He did not specify the
share of D. In this case, again we follow what he specifically states
in the will. A gets P60,000, B gets P30,000, C gets P30,000 and D
gets nothing. It turns out parang binola lang siya when he was
instituted, because when X specified the shares of A, B and C, it
already covered the entire estate.
If X says I hereby give A of my estate. I give B of my
estate. Again, we follow the will A will get P60,000, and B will
get P30,000. There remains P30,000, to whom should this go? It
should go to the legal heirs. If the testator, in instituting the heirs,
stated their fractional parts, and such parts together do not cover the
entire estate, then the part not disposed of by will should go the legal
heirs, subject to their legitime.
It is different if there is a clear intention to give the entire
estate to the instituted heirs. but the fractional parts do not seem to
cover the entire estate. That is time when you go into a proportional
increase.
If X says I give my entire estate to A and B. A will get ,
and B will get 1/4. That is a very clear indication that his intention
is to give the entire estate to A and B. Nakalimutan nya ang kanyang
fractions, akala nya and will already cover the entire estate. So
papaano ang proportional increase? In forming your fractions, you

start by following what the will said:
You give to A P60,000. for B P30,000.
*(This portion is slightly different from the actual audio, as Deans
explanation is difficult to translate because he was illustrating with
the board while lecturing this part.)
What you want to get is their proportional or pro rata share. To get
their ratio, first we add their shares to arrive at the Total which will
be your denominator:
A P60,000
B P30,000
Total is P90,000.
We then get their ratio by dividing their original share by the total:
A 60,000 / 90,000 = 6/9
B 30,000 / 90,000 = 3/9
It would be easier if you can simplify the fractional share. In this
case, the simple form is: A 2/3, B 1/3. In other words, their ratio
is 2:1 or 2 is to 1 for A and B, respectively.
Now that we have their ratio, we apply it to the remaining portion by
multiplying it so that we can arrive at the proportional increase:
A 6/9 (or 2/3) x 30,000 = 20,000
B 3/9 (or 1/3) x 30,000 = 10,000
We add this increase to their original share, thus, what they will
ultimately get is:
A 60,000 + 20,000 = P80,000
B 30,000 + 10,000 = P40,000
The proportional decrease is just the opposite napasobra.
A is given , B is given another , and C is given . In that case
you go into a proportional decrease, again, according to their share.
Page 35
One of the important points in institution of heirs, if not the

most, is Article 854 Preterition. There is preterition if a
compulsory heir in the direct line is completely omitted in the will,
and nothing has been given to him by the testator by gratuitous title
even during his lifetime.
What is the purpose of this rule? Why did the law says that
if there is preterition, the institution of heirs is annulled? Bakit hindi
nalang sinabi if somebody is omitted, the omitted heir will still get
his legitime. But no, the law said complete annulment of heirs.
The original concept of preterition was that this was simply due to
forgetfulness nakalimutan lang ng testator yung compulsory heir,
hindi sinadya. Therefore, the law assumes that if the testator had
simply remembered that heir, he would not have made the kind of
institution of heirs that he did. The question is: What if the omission
was done intentionally? Can that still be considered as preterition?
The Court answered in Ventura vs. Ventura, where the
decision was divided 3-2. The majority said: Intentional omission is
still preterition. What happened in the case was Gregorio Ventura
had 2 legitimate children by a previous marriage. Later on, Gregorio
and his 2 children from the first marriage had a grave dispute,
reaching a point where Gregorio even denied paternity to them, but
the two was still able to establish their legitimate filiation. In the
meantime, Gregorio made a will which he presented for probate
during his lifetime. In that will, he did not give anything to his two
children. Therefore, omission of the two was clearly intentional. The
question was, is that preterition? The SC anwered in the affirmative,
even when it was done intentionally. The dissenters in the decision
says that is no longer preterition, but rather imperfect disinheritance.
my love and affection from here until eternity. That is still

preterition basta walang binigay. Binanggit ka nga, wala naman
binigay sayo.
The compulsory heir who is omitted must be a compulsory
heir in the direct line. If you omit your spouse, sinadya mong
walang ibigay sa asawa mo, that is not preterition. Because your
spouse, although a compulsory heir, is not in the direct line.
When do you say that you belong to the direct line? If you are related
to each other as parent or child, or as ascendant or descendant
yun lang ang direct line, lolo, apo, etc. direct line yan, asawa
hindi.
If the omitted compulsory heir is an adopted child
maliwanag, preterition yan. Because an adopted child has basically
the same rights and position in the law as a legitimate child.
If the omitted child is an illegitimate child, that is also
preterition. Because even illegitimate children are compulsory heirs
in the direct line.
If there are no children, especially legitimate ones, but the
parents are alive, the parents, in that case, are compulsory heirs.
And if they are omitted, that is preterition.
If a compulsory heir in the direct line is mentioned in the

will, for example the testator said I give my youngest son D, all of
Page 36
The omission must be total and complete kahit na ano, walang

naibigay gratuitously to the omitted heir.
If a compulsory heir in the direct line is completely omitted
in the will of the testator, but during his lifetime he had donated
something to that compulsory heir, there is no preterition.
For the same reason, if the omitted heir in will stands to receive
something by way of intestate succession, there is no preterition.
For example, A is the child of the testator X. In his will he
said I give my friend G 9/10 of my P120,000 estate. A was not
mentioned. Is there preterition? None. Why? The law said: If the will
does not dispose of the entire estate, what do you do with the part not
disposed? You give it to the legal or intestate heirs. There is an
indisposed portion of 1/10, so kahit anong mangyari may
matatanggap pa si A that prevents preterition. Of course A will be
entitled not just to 1/10, but also to the completion of his legitime,
which is of the estate. In this case, you apply 855.
Supposing in the same case, X said I give A, by way of
legacy, P5,000, the rest of my estate to G as my heir. Is there
preterition? None. Because the omission, again, is not total and
complete. There is a legacy of P5,000 that prevents preterition. But
again, also subject to As entitlement of his legitime.
What is the effect of preterition?

It will annul the institution of heirs, but legacies and
devises will be respected insofar as they are not inofficious.
Using the previous example, X dies with a will with only
two provisions I give my friend F P10,000, the rest of my estate to
my friend G. A, Xs son was not mentioned, and no donations had
been made to him during the lifetime of X. As omission, being a

compulsory heir in the direct line, is total and complete, thus, is a
clear case of preterition. Applying 854, what will be the effect? The
institution of G is annulled. The legacy in favor of F will be
respected insofar as it is not inofficious.
When is a legacy considered inofficious? If it exceeds the free
portion.
Legitime of A is P60,000, the free portion is the other
P60,000. The P10,000 legacy given to F can be contained in the free
portion, there is even an excess of P50,000 this will go also to A. G
ends up with 0 because his institution as heir has been annulled by
reason of preterition.
If the omission is not total and complete, there will be no
preterition, thus, you dont apply 854
What is the effect of the predecease of the omitted heir?

Lets assume that X has 2 children, A and B. B has a son, C.
In the will of X, he said I give my entire P120,000 estate to my son
A. B is not mentioned and nothing has been given to him, therefore,
he is preterited. However, B dies ahead of X. What is the effect?
Paragraph (2) of 854 if the omitted heir should die ahead of the
testator, the institution of heir shall be effectual, without prejudice to
the right of representation. The last phrase is subject to two varying
interpretations:
First view C, the child of B, will be entitled to the legitime.
The rest of the estate will go to A. So, legitimes here is of
P120,000. Meaning the P30,000, which B would have received, will
now go to C. The rest of the estate of P90,000 will go to A.
Page 37
Second view there is still preterition in this case, which

will annul the institution of heirs. Why? Applying the principle in
777 the rights of succession is transmitted from the moment of
death, you determine the persons compulsory heirs as of the
moment of death because it is at that moment when there is
transmission of successional rights. Thus, at the moment of Xs
death, who were his compulsory heirs? A and C. You dont talk of B
anymore, he is already dead. C is a compulsory heir in the direct line,
and his complete omission in the will gives rise to preterition, which
should result in the annulment of the institution of A. Therefore, the
estate should be distributed P60,000 each to A and C, by intestate
succession. I submit, that is the better view.
If there is an omission of a compulsory heir, but such
omission does not amount to preterition, you dont apply 854, you
apply 855.
testator. In the case of the purely voluntary heirs, they get

everything because of the will, so if there is anyone who should
suffer a reduction, it should be them.
But again, if it is clearly a preterition, you cannot apply 855.
Remember the basic principle under 856 a voluntary heir who dies
ahead of the testator transmits nothing to his own heirs.
Lets assume that X has no compulsory heirs, and then says
in his will I give my entire estate to my friend F. And F happens to
have 2 children, A and B. However, F dies before X. What rights, if
any, will A and B get? Nothing, because F is purely a voluntary heir.
Unfortunately, 855 seems to be one of the more problematic

provisions in the Civil Code as a result of faulty codification. Why?
Because it only says 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
will. Question: Supposing that the omitted compulsory heir is not a
child or descendant? What rule are you going to apply if not 855? It
should have been the share of a compulsory heir omitted in a will...
hindi lang child or descendant, must first be taken from the part of
the estate not disposed of. If that is not sufficient, so much as may be
necessary, shall be taken proportionally from the shares of the other
compulsory heirs. Why take it from the compulsory heirs only?
Supposing there are voluntary heirs together with the compulsory
heirs instituted by the testator? If there is anyone who should suffer a
reduction, it should be the voluntary heirs. Because compulsory heirs
get their legitimes from force of law, not by reason of the will by the
Page 38
SUBSTITUTION of HEIRS
We have said that testacy is preferred over intestacy, and the

law, as much as possible, would want to give primacy to the will of
the testator.
As part of the right of disposition of the testator, the law
allows the testator to designate substitutes.
The testator may institute someone as an heir, and at the
same time, is allowed to designate somebody as substitute. Para
kung may mangyaring aberya sa instituted heir, or legatee or devisee
concerned, somebody will be able to take his place.
There are various types of substitution:
(1) Simple one on one. Ex.: A is instituted as heir, B is
designated as substitute.
(2) Brief there are 2 or more substitutes for a single heir.
Ex.: testator institutes A as heir, and designates B and C as his
substitutes.
(3) Compendious one substitute for 2 or more heirs.
(4) Reciprocal For example: A, B and C are instituted as
heirs, and at the same time, shall reciprocally be the substitutes of
each other. If anyone of them predeceases, repudiates, or becomes
incapacitated, the other two will be the substitutes.
(5) Fideicommissary to be discussed later on.
by the testator. Thus, if the testator says I institute A as my heir, and

I designate B as his substitute in case A should predecease me.
Then it is understood that there will be substitution only if A
predeceases. If not, and instead, A repudiates, will there be
substitution? There will be none, because the testator specified that
substitution will take place only in case of predecease.
If there are several heirs, and they are, at the same time,
designated as reciprocally the substitutes of each other, and a
vacancy occurs, 863 provides the substitutes shall, at the same
share as the substitution, as in the institution. Ano ibig sabihin non?
They will have the same proportional shares.
Lets assume that X has no compulsory heirs and says I
institute as my heirs A, B and C, but A will get , B and C will get
each; and at the same time, I designate them reciprocally as the
substitutes of each other. Assuming that the estate is P600,000, A
gets P300,000, B and C gets P150,00 each. Assume further that B
predeceases, so substitution will now take place. The law provides
that they will have the same share in the substitution as in the
institution that simply means they will have the same proportional
shares.
The proportion between A and C is 2 is to 1 (2:1).
Meaning, 2/3 of P150,000 will go to A, the 1/3 to C P100,000 to A
and P50,000 to C.
If the testator does not specify the causes for the substitution,
it is understood that substitution will take place in case of RIP
(repudiation, incapacity, predecease).
The testator may specify, and in such case, substitution will
only take place upon the occurrence of the particular cause specified
Page 39
One important thing in substitution ay yung tinatawag na

Fideicommissary substitution.
When will this happen? When the testator institutes a first
heir, known as the fiduciary heir, and imposes upon him the
absolute obligation to preserve and transmit the properties given
to a second heir, known as the fideicommisary substitute.
Both the first and the second heir must be living at the time of death
of the testator, and the substitution should not go beyond one degree
from the heir originally instituted.
The basic concept and requirements for a valid
fideicommissary substitution are found in 863 the substitution must
not go beyond one degree from the heir originally instituted.
What is meant by one degree?
To the so-called traditionalists, one degree means blood
relationship. Thus, you can only have a fideicommissary
substitution if the fideicommissary substitute is either the parent or
the child of the fiduciary heir, because only the parent or a child can
satisfy the one-degree limitation.
Under this view, there can be several transfers of the
property, as long as all of these subsequent transferees are first
degree relatives of the first heir.
For example: first transfer would be to the father of the
fiduciary heir. The next transfer would be to a son of the fiduciary
heir. The next will be the mother. then to the daughter.
Under the so-called modern view, one degree means
transfer. Under that view, there can only be one transfer. You dont
have to be related by blood to each other, basta isang transfer ok
yan.
Finally, the SC held in Ramirez vs. Ramirez, that one

degree, in fideicommissary substitutions, means relationship. That
should have completely settled the whole thing.
There came the case of Aranas vs Aranas, which is being
invoked by some in saying that the ruling in Ramirez has already
been abandoned. I will explain later on.
Lets assume that X has no compulsory heirs and says I
give my entire estate to my friend A as my universal heir. But I order
him to preserve all of the properties Im giving him, and to transmit
these properties to his son C. Assume that C has 2 children, D and
E. That would be a fideicommissary substitution. A is the fiduciary
heir, and C is the fideicommissary substitute. The testator has
imposed upon A the absolute obligation to preserve and to transmit
the properties intact to a second heir. C is also a first degree relative
of A, so it is valid. Upon the death of X, all his properties will go to
A the fiduciary heir. What is the nature of the right of A over these
properties? Basically, the rights of a mere usufractuary. Pwede
nyang gamitin, he can gather the fruits, etc., but he cannot alienate or
dispose.
For how long will A hold these properties? If the testator
specified the period, that should be followed.
For example, the testator says A will only hold the
properties for 5 years, and, thereafter, shall be transmitted to C.
If the testator did not specify as, example, he simply said A
should preserve and transmit these properties to his son C. Then the
time of transmission would depend upon A. If, after holding for only
2 years, he already wants to transmit, ok lang walang problema, it all
depends upon him.
The longest period that A can hold these properties would
only be up to the time of his death.
Page 40
Supposing, using again the previous example, that C died in

1995 and A dies in 1998. In other words, C, the fideicommissary
heir, died ahead of the fiduciary heir. What will now happen? The
rights of C would now pertain to D and E, provided that A and C
were alive when X died. Because, remember, in a fideicommissary
substitution, it is expressly required in 863 that both the first and the
second heir should be alive at the time of death of the testator. Why?
Because in a fideicommissary substitution, both the first and the
second heir inherit directly from the testator. Never make the
mistake of thinking that the second heir inherits from the first heir
that is wrong. And when does the second heir inherit from the
testator? At the moment of the testators death.
So even if the second heir, the fideicommissary substitute,
dies ahead of the first heir, it is not a problem because the second
heir actually acquires rights from the moment of death of the testator,
and he is able to transmit them to his own heirs that is made clear in
866.
Take note that a fideicommissary substitution cannot
burden the legitime. If the first heir happens to be a compulsory
heir, a fideicommissary substitution can only be established with
respect to his share of the free portion. Pag dating sa kanyang
legitime, hindi pwedeng subject to a fideicommissary substitution.
Why? Because the legitime is something which goes to a compulsory
heir not because of the will, but by force of law it is something
beyond the power of the testator to control. That is the reason why
the legitime cannot be made subject to any condition, encumbrance
or substitution.
Suppose that X is the testator. A had two sons, B and C. In
Xs will, A was instituted as a fiduciary heir and C is a
fideicommissary substitute. Lets assume that when A died, he did
not have any properties other than those which came from X under
the fideicommissary substitution. Can B, the other son of A, claim
part of those properties as his legitime from A? NO. Those properties
were given to A under a fideicommissary substitution, therefore,
those properties should go only to C.
Suppose that A has many unpaid debts when e died. Can his
creditors run after those properties? NO. At best, all that A has over
those properties would be the rights of a usufructuary.
Assume that what X said was I give all of my properties to
A but , upon his death, whatever shall remain of those properties
shall go to his son C. Is that a case of fideicommissary substitution?
NO. Why? There is an implied authority to dispose. There is no
obligation to preserve and transmit all of the properties.
That is what happened in the case of PCIB vs Escolin the
testatrix died with a will where she said I give all of my properties
to my husband, except for a certain one in Texas. Whatever will
remain in the properties I am giving to my husband will pass to my
relatives. That is not a fideicommissary substitution because there is
no obligation to preserve. As a matter of fact, there is an implied
authority to dispose.
Supposing that what happened was that the testator gives
of a parcel of land to a niece, and the other half to the brothers of the
testator. He also said upon the death of my niece, whether before or
after my own death, the given to her will pass to my brothers or, if
they are dead, to their own heirs. Is there a fideicommissary
substitution? There is none.
The facts are similar to Crisologo vs Singson in the case
the SC held: there is no fideicommissary substitution because you
Page 41
can only have such in either of two ways: (1) by expressly calling it
by that name; (2) by imposing upon the first heir the absolute
obligation to preserve and transmit the properties to a second heir.
Outside of these two situations, there is no fideicommissary
substitution. Then what kind of substitution is this? That should be
considered as a simple substitution.
Lets assume that X institutes A and B as the heirs in a
fideicommissary substitution, saying I institute A as fiduciary heir,
and B as the fideicommissary substitute. B dies in 1995. X dies
1998. In other words, when X died, B was already dead. Is there a
fideicommissary substitution in this case? NO. Remember one basic
requirement in 863 is that both the first and second heir must be
living at the time of the testators death. The question is, will A be
able to inherit? YES. Why? Because of 868 the nullity of the
fideicommissary substitution does not prejudice the right of the first
heir to inherit. The fideicommissary clause will simply be
disregarded
Supposing that it is the other way around. It was the first heir
who died ahead of the testator. When X died, only B was alive. Can
B inherit? Strictly speaking, B cannot, because there is no provision
in favor of the second heir similar to 868. But I submit, the better
view is that B should be allowed to inherit. We consider this as no
longer a case of fideicommisary substitution because it was no
longer valid, and thus shall be considered as merely a simple
substitution. Why? Go back to a basic principle in testamentary
succession, the principal guide is always the intention of the testator.
When the testator designated A and B as heirs in a fideicommissary
substitution, what was his intention? That the properties will
ultimately end up with B. The first heir only has temporary rights
over the property. Thus, the intention will best be served if we
consider it as a simple substitution, and as such, if the instituted heir

dies ahead of the testator, the substitute takes his place.
Always remember the restrictions and limitations under 863
(1) one degree; and (2) the first and second heir must be living at
the time of death of the testator. These are incorporated by reference
in other provisions. For example, in 869 if the testator gives the
naked ownership of a property to one person, and he gives the
usufruct of the same property to several persons not simultaneously
but successively, it should not go beyond the limits set in 863.
Thus, if the testator says i give my farm in Bulacan to my
friend F. But I give the usufrucuary of that farm to A for a period of
5 years, to As son B for another period of 5 years, and to C, the son
of B, for another period of 5 years. Here, naked ownership of that
farm has been given to F, but the usufruct has been given to several
persons successively, therefore, it cannot go beyond the limit set in
863. How do we apply the restrictions? All of the must be living at
the time of death of the testator, and it cannot go beyond one degree
from the heir originally instituted. Therefore, only A and B will get
to enjoy the usufruct because C is already two degrees away from A.
The same restrictions and limitations are imposed to 867.
For example, if the testator gives his estate or a part thereof to an
heir, but orders him to give to several persons successively a certain
income or pension it cannot go beyond the limits set in 863.
So if the entire estate is given to F but was ordered to give A
P10,000 monthly for 5 years, then P10,000 monthly to B for another
5 years, and another to C only A and B will be entitled to the
income. C is already two degrees away from A, the first beneficiary.
Page 42
The maximum period that the testator can order indivision

or prohibit alienation is 20 years. A testator is not allowed to
perpetually prohibit the alienation of property
Supposing that the testator prohibits perpetually, stating I
my entire estate to my friend F, but I prohibit him, as well as any of
his heirs, from ever disposing any of the properties forever. That is
not a valid provision. But for the first 20 years at least, that should
be respected. After 20 years, it can be disregarded.
However, if the property is given under a fideicommissary
substitution, the 20 year limitation does not apply. Meaning, if X
says I give my entire estate to A, but I order him to preserve and
transmit the properties to his son B. X has already died more that 20
years ago, but A was still holding the properties. Can A dispose of
the properties? NO. Even if more than 20 years had elapsed, there is
the overriding prohibition based on fideicommissary substitution.
He is obligated to continue preserving intact all of the properties.
870 was the principal bone of contention in the case of

Aranas vs Aranas, which I earlier mentioned. In the case, there was
a catholic priest, Fr. Aranas. He died with a will wherein he disposed
of his properties in favor of his relatives. However, there was a
certain group of properties which he particularly emphasised saying
with respect to these properties, they will be under the
administration of my nephew Vicente. As administrator, Vicente will
be entitled to of the fruits of the properties. Vicente, in reality,
was made a usufructuary in that sense. The will further provides
Vicente will continue as such administrator until he dies, or until his
refusal to go on as administrator. Upon the death of Vicente, or upon
his refusal to continue as administrator, the next administrator will be
one of the children of my brother Carmelo, to be chosen by Carmelo,

and if Carmelo is already dead, his children will select from among
themselves who will take the place of Vicente. Upon the death of
Fr. Aranas, some of the relatives questioned the validity of this
provision on the ground that it violates 870 because according to
them, it amounts to a perpetual prohibition to alienate. The SC held:
there is no violation of 870. There is nothing which prevents Vicente
of disposing of the fruits or even of transferring his rights as
usufructuary. At any rate, Vicente is still alive and still willing to
serve as administrator-usufructuary, thus, the provision should be
respected. If Vicente dies, that is the time when the properties can be
properly disposed of subject to the limitations under 863 on
fideicommissary substitution. How does this relate to
fideicommissary? Remember in the case of Ramirez, the SC
categorically said the meaning of one degree is relationship by
blood. If we consider 869, this is obviously a case of successive
usufructs. Between Vicente and any of the children of Carmelo, they
are not first degree relatives. Thus, if it would be allowed that the
next usufructuary will be one of Carmelos children, it would change
the meaning of one degree. That is the reason why some had raised
some doubts as to the continued validity of the Ramirez ruling. But I
have always maintained: one degree is still relationship. Why? Hindi
naman yan ang pinag talunan ditto e, the issue here was whether or
not there was a violation of 870, not the meaning of one degree.
Moreover, I do not think my reading of Aranas tells me that the court
did not categorically rule that the next usufructuary can actually be
one of the children of Carmelo, because what the court said was that
Vicente was still alive and that only upon his death can the properties
be disposed of, subject to the limitations of 863. In effect, the SC
said Buhay pa naman. Saka na naten pag usapan kung pwede yan
pag namatay.
Page 43
CONDITIONAL TESTAMENTARY DISPOSITIONS and

TESTAMENTARY DISPOSITIONS with a TERM
A Condition is a future and uncertain fact or event. A

term or period is something which will necessarily come to pass,
although we may not exactly know when.
Kinds of Condition:
(1) Potestative if the fulfillment of the condition depends
upon the sole will of a party;
(2) Casual if the fulfillment depends upon the will of a
third person or upon chance;
(3) Mixed depends partly upon the will of a party, and
party upon the will of a third person and/or chance.
The testator is allowed to impose conditions. It is part of his
right of disposition. An heir may be instituted, or a legacy be given,
subject to a condition. The condition, however, cannot be an
impossible or illegal condition.
Supposing that the condition imposed is impossible, what is
the effect? No effect, the heir will still inherit.
For example, the testators says I give my best friend F of
my estate subject to the condition that within 6 months from the time
of my death, he will demonstrate his ability to fly without using any
mechanical devise. F does not have to kill himself trying to fulfill
that condition. He will still inherit.
Would it make any difference if the testator says In no case
can F inherit unless he demonstrates his ability to fly.? It does not.
The rule is impossible conditions attached to testamentary
dispositions are simply ignored and disregarded. Same rule as in the

case of donations, because testamentary dispositions and donations
are essentially predicated upon the generosity or liberality of the
donor or testator.
There is a special rule when it comes to a condition of an

absolute prohibition to contract marriage:
(1) First marriage an absolute prohibition to contract a
first marriage cannot be validly imposed yung hindi pa nakatikim,
hindi pwedeng pag bawalan in an absolute manner. If it is a relative
prohibition, pwede yan. Examples:
A is instituted as heir subject to the condition that he will not
marry until he reaches the age of 25 pwede yan.
Maria is given of the estate subject to the condition that
she will not marry until reaching the age of 75 hindi pwede yan,
kahit na mayroong termino. Pag pinag antay mo ang babae
hanggang 75 bago mag asawa, para ka narin nag prohibit absolutely
the circumstances must be considered.
My friend F is given of the estate subject to the condition
that he will not marry a Bicolana pwede, relative yon.
There is just one situation that I have always maintained that
an absolute prohibition may be considered valid:
For example, I have a priest friend bawal mag asawa mga
yan diba? And I said I hereby institute my friend Fr. P as heir,
subject to the condition that he will never marry. I think that is a
valid condition. Why? I am not imposing anything new burden on
him. I am simply asking him to remain where he has voluntarily
placed himself, and I assume he voluntarily undertook that burden
when he had himself ordained.
Page 44
(2) Second marriage mga nakatikim na, gusto tumikim

ulit. General Rule: an absolute prohibition cannot be validly
imposed. Kung walang kadala dala, gusto ulit edi sige.
Exception: only certain individuals are allowed to validly
impose the absolute prohibition. Sino? The deceased spouse, his or
her ascendants and descendants. Why are they allowed? That is very
understandable kung ikaw ba naman may asawa, malamang ayaw
mong mag asawa ulit yung asawa mo pag namatay ka.
This reminds me of a story. There was a golfer, so he had a
lot of golf sets. When he was dying, he told his wife honey, when I
am gone, I want you to marry again. No, I dont want to; you are
the only love of my life said the wife. But I want you to be happy,
and I want someone to take care of you. You can even give your new
husband my gold sets. The wife replied the problem is you are
right handed, but he is left handed.
So why are they allowed? Because the law gives due
consideration to the sensibilities not only of the deceased spouse, but
also to his or her ascendants and descendants, who may not want
another person to take the place of the deceased spouse.
Lets assume that H had two wives W1 and W2, one after
the other. The parent of W1is A, the parent of H is B, the parent of
W2 is C. During the first marriage, they had two children, D and E.
The children during the second marriage was F and I. Of course, H
married W2 after the death of W1.
Now, W2 has just died. Of course, there is no question that

W2 is just allowed to impose the prohibition on H, being the
deceased spouse. If C should make a will wherein he gives a
property to X, can he also impose that condition? YES.
What about F and I, can they also impose that condition on
their father? YES, as descendants of the deceased.
What about B? NO. He is the ascendant of the surviving
spouse, not of the deceased spouse.
What about D and E? They cannot impose the prohibition
anymore, because it is no longer W1 who is deceased here. As a
matter of fact, nakapag asawa na nga ulit si H.
Assume that H and W2 did not have any children and C is
already dead. In other words, upon death of W2, only H is the
compulsory heir. If W2 said in her will I give my entire estate to my
husband H, but I do not want him to marry again. However, 6
months after, H contracted another marriage. Did he violate any
condition? NO. A mere expression of a wish or a desire does not
amount to the imposition of a condition.
Using the same facts of the immediately preceding example,
assume instead that W2 said I give my entire estate to my husband,
subject to the condition that if he marries again, he will lose
everything. Is there a valid imposition of a condition? YES. If H
marries again, will he lose everything? NO. Why not? Remember, he
was given the entire estate. He gets part of it as legitime such part
cannot be subject to any condition, encumbrance or substitution.
Page 45
The legitime goes to the compulsory heir not because of the will, but
because of the law. In that case, H will only lose the free portion, he
retains the legitime.
Remember what a Disposition Captatoria is if the testator

gives property to an heir subject to the condition that he (the heir), in
his own will, makes a disposition either in favor of the testator or a
third person, such condition is null and void. This is because
succession cannot be the object of a contract. You are not allowed to
control the will of another person by imposing that kind of a
condition.
the condition to be fulfilled again. UNLESS the condition is of such

nature and character that once fulfilled, it cannot be done again.
For example, the condition is to be an heir, my friend must
earn a masters degree. At that time, the testator knew that his
friend already has such degree. Should his friend earn another
masters degree? YES.
Supposing the testator said I give my friend F of my
estate as heir, subject to the condition that not later than 5 years after
my death, he should take and pass the Bar Exams. The testator
knew that his friend was is already a lawyer, gusto nya ulit pakunin
ng Bar ay hindi na pwede. The condition is not possible of
fulfillment again, the Supreme Court will not allow you.
If the testator imposed a potestative condition, when should

the condition be fulfilled? Since the fulfillment depends upon the
sole will of the heir, it may fulfilled as soon as the heir learns of the
death of the testator. After all, it depends upon his sole will.
If the condition, on the other hand, is casual or mixed, when
should it be fulfilled? It may be at any time before or after the
death of the testator.
If, during the execution of the will, the testator did not know
that the casual or mixed condition he imposed has already been
fulfilled, what is the rule? Does it have to be fulfilled again? NO. It
is already deemed complied with.
If instead, at the time the testator made his will, he knew that
the casual or mixed condition he was imposing has already been
fulfilled but he imposed it anyway, it can only mean that he wants
Page 46
Will the recognition of a legitimate child stated in a will

still be effective when said will is disallowed? It would depend upon
the reason for the disallowance.
If, for example, it was disallowed because it was proved that
it was a complete forgery and was not really executed by the
supposed testator, then I do not think that that recognition can be
given any effect that is not a recognition effected by the testator
himself. But if it is an authentically signed recognition made by a
person, you can consider the will as an authentic document instead of
considering it as a last will and testament. There are various ways of
effecting recognition.
Assume there are two wills, the second will expressly
revokes the first that implies that the second will, where the
express revocation is contained, is a valid will. Therefore, there is no
room for the application of dependent relative revocation.
On the other hand, if there is merely an implied revocation, it also
implies that you have two valid wills, the provisions of which are
inconsistent with each other that also necessarily implies that both
wills are valid. Otherwise, if the second will is not valid, then you
dont even talk of an implied revocation.
The doctrine would more specifically apply to revocations
effected through physical acts of destruction coupled with intent to
revoke. Because if you are talking of revocation effected through
another will, that implies that the second will is a valid will. But the
basis of the doctrine is that the revocation is dependent upon the
validity of the second will, or the ability to make a second will.
Disposition made by a testator subject, not to a condition,

but to a suspensive term or period. Example:
I give my friend A of my properties as heir, but he will
get it only after 5 years from the time of my death. That is subject
to a suspensive period. What is suspended is merely the
demandability, not the effectivity of the insituttion.
Consequently, even if the instituted heir dies before the
arrival of the suspensive term or period, he would already have
acquired rights which he can transmit to his own heirs.
During the term or period of suspension, what will be done
with the property in the mean time? For example: The testator said I
give of my estate to my friend F, but only after 5 years from my
death. While you are waiting for the expiration of the period, what
will you do with the properties? There is a conflict between 880 and
885.
According to 880 if the institution is subject to a
suspensive term or condition, the property will, in the mean time, be
placed under administration.
However, according to 885 if the institution is subject to a
suspensive term, the property will, in the mean time, be given to the
legal heirs of the testator.
Alin ba talaga kuya? It should be 885. As long as the
institution is subject to a term or period, whether suspensive or
resolutory, the applicable provision is 885. The references to a term
or period in 880 is erroneous. To borrow the language of Justice
J.B.L. Reyes, these references to a term or conflict in 880 were
inserted by an unknown genius in the code commission (he was very
sarcastic about it) and thereby creating an irreconcilable conflict with
885.
Page 47
So, applying 885, since the period is suspensive, during the 5-year
period, the legal heirs will get to enjoy the property having the same
rights as usufructuaries. Upon arrival of the 5th year, it will be given
to the instituted heir.
Under 885 before the legal heirs can take possession of the
properties, they are required to post a security in order to guarantee
that the properties will be transmitted intact to the instituted heir
upon arrival of the term or period.
On the other hand, if the institution of the heir is subject to a
resolutory term or period, as for example, the testator instead said I
give my properties to my friend F, but he will enjoy it only for a
period of 5 years. Upon the death of the testator, the instituted heir
will get the properties. And upon the arrival of the resolutory term or
period, his rights are extinguished the properties will now go the
legal or intestate heirs of the testator.
If you are instituted under a suspensive condition, apply 880
prior to the fulfillment of the condition, while waiting if whether or
not the condition will be fulfilled, what will be done with the
properties? Under administration yan. The heir is not allowed to
secure the properties even if he is able and willing to post a security.
What is a Modal Institution? You have the provisions of

882. When is it considered modal? If the testator specifies the:
(1) object of the institution,
(2) charges to be satisfied by the heir; or
(3) application of the property.
What is the legal consequence? How does this work?

If the institution is modal, the instituted heir is immediately
entitled to the properties given to him under the will even before he
has satisfied the charges or object specified by the testator.
For example the testator says I give my best friend F the
entire free portion of my estate, but I order him to use 20% of the
income of these properties for the purpose of putting up and
maintaining a charity clinic. That is a modal institution. The testator
specified the object of the institution, as well as the charges imposed
on the heir. So upon the testators death, F will immediately be
entitled to the properties given to him even before he puts up the
clinic. He is required, however, to post a security to answer for the
return of the property, as well as all the fruits and interests due
thereon, in case he does not comply with the wishes of the testator.
Remember the difference between a mode and a condition:

Mode obligates but does not suspend. You are obligated to
comply with the orders of the testator but you are immediately
entitled to the properties, subject to the posting of a security.
Condition suspends but does not obligate.
A good illustration of a modal institution is Rabadilla vs.
CA. In that case, the testatrix executed a codicil to her will wherein
she said I give a parcel of land to Dr. Rabadilla, but I order him to
give to my relatives 100 piculs of sugar annually. that is,
according to the SC, a modal institution.
The moment the testator specifies these three, that will be a

modal institution.
Page 48
LEGITIMES
Rules of thumb:
(1) Legitimates are always entitled to
(2) Any class surviving alone - basta walang kahati,
isang klase lang
(3) Spouse surviving alone - kung walang ibang
compulsory heirs.
Exception to (3) If the marriage was solemnized in
articulo mortis, and the testator died within 3 months, the law looks
with suspicion at that marriage and reduces the legitime of the
surviving spouse to only 1/3. Why? During the marriage, the testator
is at the point of death. (Take note, articulo mortis is at the point of
death, not merely with a danger of dying there is a difference) Kase
baka naman kaya mo lang pinakasalan yan dahil alam mo na isang
bulate nalang ang di pumipirma bago mamatay yan. Thus, the
marriage might have been impelled by economic considerations
lalo na kung mayaman yung himamatayin, para kang nanalo sa lotto
nyan.
Exception to the exception even if the marriage was
contracted in articulo mortis and the testator died within 3 months, if
the parties has been living together as husband and wife for at least
5 years, the law raises back the legitime to . Baka naman totoong
may pag ibig because of their cohabitation.
For the exception to apply, it is necessary that the marriage
is in articulo mortis. If H and W were married healthy in 7:00am,
and during the honeymoon at 7:00pm of the same day, H suffered a
massive heart attack and dies, the legitime of W is assuming she is
the only compulsory heir. It does not matter that the marriage lasted
only for several hours, because it was not in articulo mortis.
The dying party should be the one who actually dies.
Example, H and W were married in articulo mortis on January 1, W
was dying. Even the doctor said that she can die any minute.
Syempre hindi sila nag honeymoon on January 1, himamatayin nga
si W. In the mean time, H nursed W back to health. By Feb.14, W
was well enough in perfect health, so they finally had their
honeymoon. That evening of Feb14, H suffered a heart attack and
died. What is the legitime of W? still , because it was W who was
dying during the celebration of marriage but it was H who died
within 3 months. Kelangan yung himamatayin yung mamatay
otherwise you dont apply the exception.
The presence of legitimate children and descendants, even

an adopted child, excludes the legitimate parents and other
ascendants.
Survivors Legitimate parents, Illegitimate children and Spouse:
to the legitimate parents;
to the illegitimate children;
only 1/8 to the spouse.
Medyo agrabyado ang spouse. Nagka anak sa labas na nga asawa
nya, mas malaki pa minana. The reason is that something must be
left for the free disposal of the testator. Between the spouse and the
illegitimate children, the law would rather give a larger share to the
illegitimate children because, chances are, marami yan at maghahati
hati pa sila, isa lang naman ang surviving spouse.
Page 49
Survivors Illegitimate children and Spouse:

1/3 for both
Survivors Illegitimate parents and Spouse:
for both
Survivors Illegitimate grandparents and Spouse:
the illegitimate grandparents are not compulsory heirs,
for the surviving spouse.
Remember that, whether under the law on legitimes or in
intestate succession, in the direct ascending line, in case the
decedent is an illegitimate person, succession stops at the
illegitimate parents.
Let us assume GF, the illegitimate grandfather of X, died.
Can X inherit from GF? YES. An illegitimate descendant can inherit.
But suppose it is GF who survived the death of X, can GF inherit
from X? NO, ang state ang makikinabang dyan.
So I repeat in illegitimate persons, succession in the direct
ascending line stops at the illegitimate parents.
the legitimate children, you then give to the surviving spouse the
same as one legitimate child, thus, also P30,000.
Under the Family Code, C, D, E, F, G and H are supposed to
get of the share of a legitimate child. So theoretically, they each
should get P15,000. However, you have P30,000 left in the estate.
What is the net consequence? They would just have to share the
P30,000, thus, since there are 6 of them, they each get P5,000.
Survivors One legitimate child and Spouse:
to the legitimate child
to the spouse.
Thus, there will be a free disposal of .
Survivors Illegitimate children:
- any class surviving alone
Survivors 2 legitimate children and Spouse:
for legitimate children to be divided equally to them.
After determining the share of each child, give the same to
the spouse
Quick Summary:
Under the Family Code, illegitimate children are entitled to a

legitime which is of that given to the legitimates. However, it may
happen that they may end up with less than - kung makulay ang
buhay ng decedent.
For example: X is survived by W his wife, A and B his
legitimate children, and C, D, E, F, G and H illegitimate children.
The estate is P120,000. How much would be the legitimes? When it
comes to distribution, always give preference to the legitimate
children. You give first to the legitimate children their legitime,
which is P60,000 thus, A and B gets P30,000 each. After satisfying
Page 50
Reserva Troncal
What is Reserva Troncal? It is a reservation established by
law for the benefit of certain relatives within the 3rd degree who
belong to the line from which the property came.
The purpose is to return property, which was somehow
strayed from one family to another, back from where it originally
came.
Assume: A and B are married; C and D married; E and F are
the children of A and B; G and H are the children of C and D. F and
G got married and had a child, X. thereafter, F died.
A, the grandfather, donated a parcel of land to X, his

grandson. Later on, X died intestate. His entire estate, including the
land from A, went to G, his mother. Without Reserva Troncal, who
will get the land if G dies? C and D, and upon their death, it will go
to H and down his line.
In other words, without Reserva Troncal, that parcel of land,
which might have belonged to the family of A since time in
memorial, would be forever lost and would now belong to another
family simply because of the accident of death that I died intestate
ahead of G, without any legitimate issues.
Therefore, the purpose of Reserva Troncal is to return the

property back to the line from where it originally came ibalik dun
sa pamilyang pinanggalingan yang naliligaw na pagmamay ari na
yan.
Using the same illustration, the land is subject to a
reservation established by law in favor of the relatives of X within
the 3rd degree, and who belonged to the line from which the property
came.
G is the Reservista the person obliged to reserve;
X is the Propositus the descendant from whom the
ascendant acquired property by operation of law, which property
previously came by gratuitous title from another ascendant, brother
or sister.
A is the Origin The person from whom that property
originally came.
The reservation is established in favor of Reservatarios the
relatives of X within the 3rd degree, and belonging to the line from
which the property came.
So, who are qualified reservatarios in this case? C and D,
while they are 2nd degree relatives of X, are out they obviously do
not belong to the line from which the property came.
How do you count the number of degrees? You simply count
the generations for those in the direct line. For those who belong in
the collateral line, you ascend to the common ascendant before
going to the collateral relative concerned.
In this case, who is the common ascendant of X and H? Si C
at si D. So counting up to C and D, then down, H is thus a 3rd degree
Page 51
relative, but still out as reservatario for not belonging in the line
from which the property came.
If A, the origin, is still alive, can he be a reservatario? YES.
That is in fact the most ideal situation walang duda that the
property had come home if it returns to the origin. So A is
qualified if still living.
Therefore, I submit that to be qualified as a Reservatario,

you must satisfy a dual blood relationship:
(1) you must either be the origin yourself, or related by
blood to the origin.
(2) you must be related by blood within 3 degrees to the
descendant propositus.
What about E? YES. He belongs to the line from which the

property came because he is the son of the origin, and he is a 3rd
degree relative of X.
What about B, the grandmother of X? There are actually two
views, but I submit that the better view is that B is not qualified as
a reservatario. Why? The purpose of Reserva Troncal is to return the
property back to the family from where it originally came thats the
family of A.
Assuming that A died. If we consider B as a qualified
reservatario, then upon the death of G survived by B and E, B will
be the one entitled to the property. Because in determining who
among the reservatarios will get the property, we apply the other
rules of succession such as nearer excludes the further, direct line
preferred over the collateral line. B is a 2nd degree relative in the
direct line, while E is only a 3rd degree relative in the collateral line.
The problem is if lola B, may asim pa, nag asawa ulit kay
Mr.Z, at nagka anak pa, which is not an entirely impossible thing
you can become a grandmother at the age of 42 or 45, pwede pa
manganak yan. If she is considered as a qualified reservatario and
gets the land, and later on she dies, there is a possibility that the land
will pass to Z and Zs children. Has it returned to the family from
which it came? NO, the purpose of reserva troncal will not be
served.
Before there can be a reserva, there must be at least two

transfers of property:
The first transfer is from the ascendant, brother or sister, to
the descendant propositus. That first transfer must be by gratuitous
title donation, succession, basta libre.
The second transfer is from the descendant propositus to
the ascendant reservista. This time, the transfer must be by
operation of law this can only be had in either of two ways: first,
if the ascendant inherits property as his legitime; second, if the
ascendant inherits property by intestate succession. Those are the
only two possible ways by which an ascendant can acquire property
by operation of law from a descendant.
It is only when an ascendant has acquired property from a
descendant by operation law that the reserva starts.
The first transfer from ascendant is either downwards or
horizontal. If the origin is an ascendant, pababa yan. If the origin is
a brother or sister, horizontal yan.
The second transfer, from the descendant propositus to the
ascendant reservista by operation of law, is always upwards.
Page 52
If in the previous illustration, X is still alive, is there already

a reserva? None yet. Thus, while X is the owner of the land, it is
considered a completely free property not subject to any reservation
and totally in the control of X. He may sell, alienate or otherwise
dispose of it because there is no reservation yet.
To illustrate, using the previous case: if X had a legitimate

child, G will not be entitled to a legitime. The same thing may be
said in the case of intestate succession if X dies leaving a
legitimate child, his entire estate will go to that child by operation of
law, none to G.
Assume X sells that land, after it was donated to him by his

grandfather, to Carlo for P5M, and just 3 days after the sale X dies.
Having died intestate, his entire estate including the P5M was
inherited by his mother G. Will there be a reserva over the P5M?
NO. We do not allow substitution in reserva troncal. In other words,
unless it is the very same property which previously came from an
ascendant, brother or sister by gratuitous title, which is subsequently
inherited by operation of law by another ascendant, there is no
reserva troncal. But there may be a reserva regardless of what kind
of property it may be even on money, as long as it is the very same
property which previously came by gratuitous title from an
ascendant, brother or sister and which had subsequently been
acquired by another ascendant through operation of law.
That is the reason why according to some, one of the

requisites of a reserva troncal is that the descendant must leave no
legitimate issues because there is no way that an ascendant can
acquire property from him by operation of law if he has legitimate
issue of his own.
Therefore, if X is still alive and still has that land, it is within

his power to determine whether or not there will be a reserva troncal
later on. As said by some civilists: the descendant is the arbiter of
the reserva. He has the power of life and death over the reserva. If
he does not want the reserva to arise later on, he can simply dispose
the property that will effectively prevent the reserva because it will
no longer be the very same property. If he gets married and he has a
legitimate issue, for example he had a child; reserva troncal is no
longer possible. Why? Because if the descendant has a legitimate
issue, there is no way that his ascendant can acquire property from
him by operation of law.
It is only when G acquires the property (the parcel of land)

from X by operation of law that the reserva starts automatically.
While the property is in the possession of the reservista and
is already reserved for A and E, what is the nature of the right of
such reservista? Is he just like the fiduciary heir in a
fideicommissary substitution, having the rights of a usufractuary?
NO. The reservista is actually the owner of the property under
reserva troncal. But that ownership is subject to the threat of
extinction subject to a resolutory condition. What is the resolutory
condition? If there are, at the moment of death of the reservista,
surviving reservatarios.
If, at the time of death of G, there are surviving
reservatarios, then the rights of G are extinguished and transferred to
the reservatarios.
Can G, the reservista, sell the reserved property during his
lifetime? YES. But that sale is subject to the same resolutory
condition.
Page 53
What about the reservatarios? During the lifetime of G, can

A and E also sell the property? YES. But that sale is subject to a
suspensive condition.
So, if in one sale G the reservista sold the property reserved
to Lito, and on the other hand, the reservatarios sold the same
property to Tolits, who will have better rights as between Lito and
Tolits? The answer would be: it depends kung sino mas magaling
mag dasal. Why? In the case of Lito, he will have to pray hard that G
will outlive all the reservatarios. In the case of Tolits, he will pray
that any of the reservatarios will outlive the reservista.
Assuming the previous illustrative facts, will there be any
difference if the land in the estate of X originally belonged to D? For
example, it turns out A and D were childhood sweethearts before.
Long time ago, D actually donated the land to A, never imagining
that someday their children would marry each other, and that they
would have a common grandchild, and the facts of the original
illustration then ensued. The question is, will there be a reserva
troncal? YES. Will there be a change in the reservatarios? NO. The
same reservatarios A and E. Why? In reserva troncal, we do not
concern ourselves with the remote source of the property. Our
inquiry only goes back to the origin wala na tayo pakialam kung
saan nanggaling yan before the origin, thus, no change in the
qualified reservatarios.
In reserva troncal, the reservation is established by law in

favor of a class. Who are included in that class? All relatives of the
descendant propositus within 3 degrees and who belong to the line
from which the property came.
In determining who among the members of that class will
actually get the property once the reservista dies, we apply the other
rules of succession such as rule of preference between lines or
rule of proximity or even representation provided that the
representative is himself a relative within 3 degrees counted from the
descendant propositus.
Diagram for the next illustration:
Let us assume that B married twice. First marriage was with

A, and they had three children, the second marriage is with C also
with three children. The parent of A is D, the parent of B is E, and
the parent of C is F. B is dead. E donated a parcel of land to J. Later
on, J died intestate, and his entire estate, including that land from E,
was inherited by his mother C. Is there reserva troncal? YES. There
had been two transfers the first is from an ascendant to a
descendant through gratuitous title, and the second is from the
descendant upwards to the ascendant by operation of law, thus, the
land is covered by reserva troncal.
Page 54
If C dies, and E is still alive, the property will go to E. Why?

Although J has many relatives within 3 degrees, E will exclude all of
them. Rule of preference between lines direct ascending line is
preferred over the collateral line.
Lets assume that E is dead. If C dies, who gets the property?
All the relatives of J within 3 degrees and who belong to the line
from which the property came are considered qualified reservatarios
G, H, I, K, and L are 2nd degree relatives. Same thing with M, N,
O, P, Q, R, S, T, and U because they are 3rd degree relatives. Do they
all belong to the line from which the property came? YES. G, H, I, K
and L are all descendants of E their common grandparent. Thus,
they will divide the property. In dividing the property, distribution is
not equal because among the reservatarios, the other rules of
succession will apply. What specific rule will apply here? The rule of
double share for full-blood collaterals full-blood brothers and
sisters are entitled to twice as much as half-blood siblings. Thus,
each of the half-blood siblings of J will get 1/7, while each of the
full-blood siblings will get 2/7.
If G and L is dead, M and U can represent them. Even in
reserva troncal, representation is allowed, as long as the
representative is himself a relative within 3 degrees of the
descendant propositus. Thus, the 1/7 of G will go to M and the 2/7 of
L will go to U they inherit by representation. By the way, this is the
only situation where there is representation in the collateral line.
Generally, there is no representation in the collateral line and this is
the only exception when nephews and nieces survive with at least
one uncle or aunt. M and U are nephews who survived with their
uncles and aunts H, I and K.
If all of the siblings of J are dead, the only survivors would
be the nephews and nieces. This time, the nephews and nieces will
be inheriting in their own right. As such, the division will be per

capita, not per stirpes, but still applying the rule of double share for
ful-blood collaterals. The latter rule applies not only to brothers and
sisters, but also to nephews and nieces hanggang dun lang, grand
nephews and nieces hindi na yan. Thus, S, T and U will get twice
as much as M, N, O, P, Q and R 1/12 for each of the half-blood
nephews and 2/12 for each of the pure-blood nephews and nieces.
If M is dead but is survived by V, and U is dead survived by
W, V and W will no longer participate. They cannot represent M and
U. Why? There is no right of representation in favor of grand
nephews and grand nieces. Moreover, the reservation is established
only in favor of the relatives of J within 3 degrees V and W are
already 4th degree relatives, thus, cannot participate anymore.
Lets go back to the previous illustration where X is the

descendant propositus. Let us further assume that when X died
intestate, his entire estate was worth P10M comprising of the land
donated by A which was worth P4M and other properties from other
sources worth P6M. Thus, the entire P10M is inherited by G. Will
there be reserva troncal? YES. Will the reserva cover the entire
estate? NO, the other properties did not come from an ascendant,
brother or sister by gratuitous title, and only the land will be covered
by the reserva. Will the reserva cover the entire land? YES. Why? X
died intestate, meaning the entire estate passed by operation of law to
G. Therefore, every single item within that estate which previously
came through gratuitous title from an ascendant, brother or sister will
be completely covered by the reserva. You dont apply the reserva
minima and maxima if the descendant propositus died intestate. You
only apply either reserva maxima or reserva minima if the
descendant propositus died with a will.
Page 55
Let us assume that X died with a will stating I give my

entire estate to my mother G. Under the theory of Reserva Maxima
as much of the reservable property as can be contained in the
legitime. In other words, hanggat kakasya yang land sa legitime,
isaksak mo sa legitime. So the legitime of G is of P10M or P5M
and the land which is P4M can be contained in the legitime. So,
under the theory of reserva maxima, the entire land is reservable.
The Reserva Minima takes into account the fact that all of
these properties passed to G partly by will, and partly by
operation of law. So, of the land passed by will and the other half
passed by operation of law. Therefore, under the theory of Reserva
Minima, only of the land is subject to the reserva.
(3) Loss of the property without the fault of the reservista.

(4) Waiver by all of the reservatarios if for example there
are 10 qualified reservatarios and 9 of them had already waived, but
there remains one who does not want to waive, the reserva troncal
continues in its entirety.
(5) Prescription
(6) If the reserved property is somehow registered as a free
property as when the reserva was not annotated in the title,
especially so when it has already been acquired by innocent
purchasers for value who had relied on the certificate of title.
Which is the better view? On one hand, Maxima would

better serve the purpose of Reserva Troncal because the entire
property can return to the blood-line from which it came. But
Minima, on the other hand, is more fair and reasonable as it does not
ignore the fact that the properties had been transmitted partly by will
and partly by operation of law.
Just remember, these two theories are relevant only when
the descendant propositus dies with a will. Otherwise, or if he dies
intestate, forget about maxima and minima.
How is the Reserva extinguished?

(1) Death of the reservista the rights of the reservista is
terminated and passed to the reservatarios.
(2) Death of all of the reservatarios kailangan lahat
mamatay, pag may isang matira sakanya mapupunta yung reserved
property.
Page 56
Collation
Recall the provisions of 905 there can be no waiver of

future legitime, and there can be no valid compromise with respect
to future legitime. Any such waiver or compromise is considered to
be void, but the compulsory heir concerned is obliged to bring to
collation whatever he may have received by virtue of the waiver or
compromise.
This brings us to the concept of Collation ano ba ito?
When a person dies, whether with a will or intestate, there is always
a process of collation. There are actually three meanings of the term,
as used in the Civil Code.
First meaning: collation as Addition meaning, the value of
all properties which were gratuitously disposed of by the
descedent during his lifetime are added to the estate. In other words,
it is the mathematical process of adding the value of such properties
to the estate.
Second meaning: collation as Charging or Imputation all
gratuitous dispositions made in favor of compulsory heirs are
generally charged against their legitimes and considered as an
advance of the legitime. Gratuitous dispositions made in favor of
third persons who are not compulsory heirs are, on the other hand,
charged against the free portion.
Third meaning: collation as the Actual Restoration of the
property. But commentators and civilists are practically unanimous
in saying that this is not really collation. This happens only when a
donation is held to be totally inofficious, the property itself would
then had to be returned.
Thus, we concern ourselves with only the first two meaning

of collation in the sense of addition, and in the sense of charging or
imputation.
In collation as a process of addition, the purpose of adding
the value of all gratuitous dispositions made by the decedent during
his lifetime to his estate is to determine the total hereditary estate
which will, in turn, be the basis for determining the legitimes of the
compulsory heirs.
The Civil Code gives us specific rules on collation. I refer to
1061 to 1077.
Practically all gratuitous dispositions are subject to collation.
There is only one situation where certain gratuitous dispositions
made are completely not subject to collation, I refer to the provisions
of 1067 yan lang. In the other provisions within 1061 to 1077, if
the law says shall not be subject to collation it only means that it
will not be charged against the legitime, but it will still be collated in
the sense of addition. It is only in 1067 that the law means exactly
and absolutely not subject to collation.
So what are these items under 1067?
(1) Support;
(2) Education;
(3) Medical attendance, even in the case of extra-ordinary
illness;
(4) Apprenticeship;
(5) Customary gifts; and
(6) Ordinary equipment
This means, if you are confined in a hospital and got
admitted in ICU, and your father spent P3M for the hospitalization,
Page 57
the P3M will not be considered in the distribution of the estate when
your father dies. It will not be added to the value of the estate, and
will completely be ignored.
yan, milyon ang ibibigay dyan. Election expenses are charged

against the legitime of the child concerned. Same thing with fines
and indemnities paid by the parents for their children.
Lahat ng nakain mo, kahit malakas ka pa kumain simula

nung maliit ka, support yan not covered by collation, you dont
have to worry.
Donations given to a daugther-in-law or a son-in-law are

charged against the free portion. This is because an in-law,
regardless of the fact that you are the favorite in-law, is not
considered an heir and not entitled to any legitime.
Customary gifts like yearly birthday gifts and pamasko

those will not be subject to collation.
Pag dating sa Education, we distinguish between tertiary or
college and the education before that. 1067 covers only up to highschool level, this will completely not be subject to collation. Pero
yung na gastos sayo pagdating mo ng college, that is covered not by
1067 but 1068 expenses incurred by the parents in giving their
children professional, vocational or other career. So even then,
you dont have to worry. In other words, the value or the amount
spent by your parents in sending you to college will be added to the
estate, but when it comes to charging or imputation, that is not
considered as an advance on your legitime. That is chargeable
against the free portion. Kasama dyan yung incidental expenses, not
just the tuition. Like yung mga nagastos sa pag bili ng mga libro for
example, is generally not chargeable to the legitime but rather
against the free portion, UNLESS otherwise provided by the parent,
in which case, whatever the parent would have spent if the child
simply stayed at home will be taken into account; or UNLESS there
is a clear impairment of the legitime of other compulsory heirs.
May mga magulang na mahilig magpa kandidato ng

kanilang mga anak kahit wala naman kapana-panalo. Gagastahan
Donations given to grandchildren, you remember the

special rule Assume that X has two children A and B, then B had a
son C. X donated a parcel of land to his son B, and also donated to
his grandson C a car. X dies. The value of the land will have to be
collated together with the value of the car. When the time to charge
or impute the donations has come, the value of the land will be
imputed or charged against the legitime of B. The value of the car
will be charged against the free portion. This is because C will not
inherit buhay pa yung tatay nya.
Let us assume, however, that B sold the land to Z. After
selling the land, he spent the entire proceeds thereof in just one
whole night at the casino ubos yung P10M, and then he dies. C will
now be inheriting from X. Under this situation, even if C did not
benefit from that land, he is obliged to bring into collation not only
the value of the car, but also the value of the land that is the rule
for grandchildren. In this regard, you have the provisions of 1064.
Remember also the special rule for wedding gifts consisting
of jewelry, clothing and outfits under 1070 to the extent that they
do not exceed 10% of the free portion, these wedding gifts consisting
of jewelry, clothing and outfit will be charged against the free
portion. Any excess over the 10% limitation will be charged against
the legitime of the child concerned.
Page 58
Take note that if the testator had donated a property to a

compulsory heir, and in the deed of donation he said This donation
is irrevocable. That donation is still subject to collation. This was
made clear by the SC in Deroma vs CA.
Lets assume that X has four legitimate children: A, B, C and

D. W is the wife of D, and E is the son of B. During the lifetime of
X, he made the following dispositions and incurred the following
expenses:
(1) spent P300,000 for the hospitalization of A;
(2) spent P30,000 for the campaign of B in running for
public office;
(3) gave to grandson E a ring worth P10,000;
(4) gave to daughter-in-law W a bracelet worth P20,000;
(5) gave D jewelry worth P40,000 on account of wedding;
(6) spent P10,000 for Cs college education.
X died with a will wherein he said I institute my four
children as my heirs. His gross estate is P1M, and had debts
amounting to P500,000. So what should be done in distribution?
First step: deduct the debts and other charges from the
gross estate. You are then left with a net estate of P500,000.
Next is collation in the sense of addition you add the
value of all gratuitous dispositions. Applying 1067, we completely
ignore item (1). Thus we only collate (2) to (6), the total amount of
which is P110,000.
Supposing that the bracelet given to W, although worth
P20,000 only before, is now worth P200,000, what amount should be
collated? Remember, when it comes to collation, it is always the
value of the property at the time of the donation. Any subsequent

increase or diminution will be for the account of the donee.
So we add P110,000 to the net of P500,000, arriving at a
total hereditary estate of P610,000.
Next step: after determining the total hereditary estate, you
are now ready to determine the legitimes of the compusolry heirs
based on the total hereditary estate which was arrived at only after
collation. Thus, the legitime of the legitimate children of
P610,000. A, B, C and D will each be entitled to P76,250.
Since the legitime is half, the other P305,000 is our free
portion.
Next step: collation again. This time, in the sense of
imputation or charging. We will go through one by one the items
which we had earlier collated.
Election expense for B charge to legitime, thus deduct
P30,000 from the P76,250. This is considered an advance to his
legitime.
P10,000 worth ring of E B is still alive, thus, the value of
the ring will be charged against the free portion.
The bracelet given to W basta in-law, considered a
donation to a stranger. Charge again against the free portion.
Wedding gift of jewelry to D under 1070, up to 10% of the
free portion is charged against the free portion, the rest will be
against the legitime of the heir concerned. The 10% is P30,500 and
the value of the gift is P40,000 resulting to an excess of P9,500. That
excess will be charged against Ds legitime.
Cs college education we apply 1068, meaning we
generally charge it to the free portion, unless otherwise provided by
the parent or unless impairment of legitimes.
Page 59
After all of these deductions, we are left with P234,500 in

the free portion. What do we do with this? Divide by four giving us
P58,625, which will be added to each of their legitime. The total
amount to be received by all of them is P500,000, which must
always be equal to the Net Estate.
Summary:
Lets assume that X has two legitimate children A and B,

one illegitimate child C, and a surviving spouse W. Further assume
that sometime in 1975, A, the eldest, demanded from his father his
inheritance. X relented and agreed, giving A a parcel of land at
which time was worth P20,000 evidenced by a compromise
agreement between the two of them wherein A waived his right to
any future inheritance from X. When X died subsequently, he left a
will where he said I institute as my universal heirs my children B
and C. W and A were not mentioned. Before proceeding, is there
preterition? NO, because A already had received something and W is
not a compulsory heir in the direct line. At his death, Xs gross estate
was P200,000 and debts amounting to P100,000, thus, having a net
estate of P100,000. We then collate the value of the land donated in
1975. If that land is already worth P2M, we still collate only
P20,000. Therefore, our total hereditary estate is P120,000. Having
determined the THE, we now determine the legitimes. Kasama parin
si A sa pag determine ng legitimes becaue that waiver or
compromise is not valid. A and B is therefore entitled to P30,000
each as a legitimate child by way of legitime. The surviving spouse
is entitled to the same share as one legitime child, thus, also P30,000.
Being illegitimate, C is entitled to of the share of a legitimate child
or P15,000. The remaining P15,000 will go to whom? That will go to
B and C because they are the instituted heirs. Thus, they both get an
additional P7,500.
We also collate, in the sense of charging or imputation, the
value of P20,000 which was earlier donated to A. Therefore, while A
is entitled to a legitime of P30,000, what will actually be given to
him is only P10,000, kasi matagal na nya natanggap yung P20,000
yan ang ibig sabihin ng charging or imputation.
Page 60
Summary:
Second, they come ahead in time than the legacies and devises
priority in time is priority in right. Thus, only after you have
charged the donations inter vivos against the free portion, should you
attempt to satisfy the legacies and devises in the will.
As among the legacies and devises, what is the order of
preference in satisfying them? This is very simple: You first satisfy
those which are expressly declared preferencial by the testator.
Second, all others pro rata yun lang.
How do we apply these rules? Example: Let us assume that
X has three legitimate children A, B and C, and W as the surviving
spouse. During his lifetime, he made the following donations inter
vivos:
1975 a parcel of land worth P20,000 to his son A;
1988 another parcel of land worth P70,000 to his friend F;
In distributing the estate, the principal provision or rule to

take into account is 911. Whatever happens, the legitimes of the
compulsory heirs will always have to be protected.
If, in the will of the decedent, there are legacies and devises,
and during his lifetime he also made various donations inter vivos,
and the free portion is not sufficient to completely cover the value of
all legitimes and the legacies and devises, what is the rule?
Preference is given to the donations inter vivos. Before you even
attempt to charge the legacies and devises against the free portion to
satisfy them, unahin mo muna i-charge sa free porions yung
donations inter vivos? Why are they preferred as against legacies and
devises? First, because donations inter vivos are basically
irrevocable. You cannot allow the testator to, in effect, revoke his
earlier donations by simply giving so many legacies and devises.
X made a will wherein he instituted A, B, C and W as his heirs. In

the same will, he made the following legacies and devises:
House and lot worth P70,000 to friend G;
Car worth P30,000 to friend H;
P60,000 Cash to friend I.
Total legacies and devises is P160,000.
When X died, he had a gross estate of P400,000 and debts
amounting to P40,000, thus, net estate is P360,000.
Again, next step is collation as addition. Do not ever make
the mistake of collating legacies and devises, nasa will yan e, hindi
pa naibigay yan. We collate only the two donations, giving us a
total hereditary estate of P450,000.
Page 61
For the legitimes, half of the THE is P225,000, divded by

three, giving us P75,000 for each of the legitimate children and
P75,000 also for W having the same as one legitimate child. Thus,
total legitimes is P300,000.
If we deduct the total legitimes from the THE, we will be left
with a free portion of P150,000.
We now go through collation as imputation. Against what
part of the estate do we charge the donations given to A? To the
legitime, thus, while his legitime is P75,000, he will now get only
P55,000. The next is the P70,000 land donated to F this is
chargeable against the free portion, leaving it with a balance of only
P80,000.
Note what I said earlier before we even attempt to satisfy
the legacies and devises, inuuna natin i-charge against the free
portion the donations inter vivos. This is what I meant when I said
earlier that donations inter vivos are preferred over legacies and
devises.
The P80,000 remainder will be given to the legacies and
devises. Obviously they cannot all be fully satisfied, and since the
testator did not express any of them to be preferred, they all be
reduced proportionately. If the testator had said that the legacy in
favor of I is a preferred legacy, then you give P60,000 to I and the
remaining P20,000 ang pag hahatian ni G and H. In the absence of
any express preference, all of them will be reduced proportionately.
As a matter of fact, it is very clear that reduction is exactly
because from a needed P160,000, only P80,000 is available. So, the
P70,000 is reduced to P35,000 and so on.
This illustration brings us to 912 if the devise consists of

real property which cannot be conveniently divided, it shall go to the
devisee if the reduction does not absorb of its value. In a contrary
case, it will go to the compulsory heirs, with the corresponding
obligation to reimburse each other.
Having the reduction of exactly , the question now is who
will get the house and lot? Will it go the heirs of X with the
obligation to pay P35,000 to G, or vice-versa? If we apply 912
literally, it would seem that the property should go to the heirs. 912
says that it will go to the devisee if the reduction does not absorb
of its value. Thus, if it is exactly literally, dapat mapunta sa heirs.
But I think the better view expressed by Justice Paras and Tolentino
is that: if the reduction is exactly , it should go to the devisee.
Why? We go by the intention of the testator, and such intention is
obviously that the house and lot to go to the devisee. As much as
possible, we should respect that intention.
What about the car? It is personal property, not real, but
then again, it is also a property which cannot be conveniently
divided. What rule would apply? Although 912 mentions only
devises of real property, I do not see any reason why the same rule
should not also be applied to legacy of personal property which
cannot be conveniently divided. Otherwise, what rule are you going
to apply? Thus, 912 applies will equal force to a legacy of personal
property which cannot also be conveniently divided.
Page 62
DISINHERITANCE
You can only deprive a compulsory heir of his legitime

through a valid disinheritance, and you can only have a valid
disinheritance through a valid will.
Suppose a father gets very angry at his son because of the
latter doing something terribly wrong, he said You will not inherit
anything from me. I am disinheriting you. wala yon. A
disinheritance can be made only through a valid will.
The cause for the disinheritance should be stated in the will
and must be one recognized by law. For example, a father said in his
will I disinherit my youngest son because he looks more like our
neighbor than me that is not a valid disinheritance.
The disinheritance must be based on an existing cause, it
must already be committed. It cannot be made conditional or upon
the happening of an event.
For example, the father says If my daughter should live a
dishonorable and disgraceful life, she will be disinherited. E wala
pa naman ginawang anomalya yung kanyang anak. But three months
later, the daughter eloped with the family driver who is a married
man, and they started cohabiting. Is there a valid disinheritance? NO.
When the disinheritance was made, there was no existing cause. Of
course, it must also be a true cause.
While a disinheritance cannot be made conditionally, the
revocation of the disinheritance may be made conditional. For
example, the daughter has eloped with a married man and is
cohabiting with him. So the father says I hereby disinherit my
daughter because she is living a dishonorable and disgraceful life. If,

however, she should mend her ways, leave that man, and return to
our home and serve me well, then this disinheritance shall be
revoked. Is there a valid disinheritance? YES, because there, what is
conditional is not the disinheritance itself, but the revocation.
A disinheritance cannot be partial. Why? Because
disinheritance is based on the offense committed against the
testator. The testator is offended or he is not, hindi pwede sabihin na
half-offended lang. A father cannot say I disinherit my son
because he maltreated me, and I deprive him with respect to of his
legitime. that is not a valid disinheritance, the son will still be able
to inherit.
By the way, who has the burden of proof if the disinherited
heir questions the validity and basis of the disinheritance? It is on the
other heirs who wants to uphold the disinheritance.
You find the Grounds for a valid Disinheritance in 919 for

children or descendants, 920 for parents or ascendants, and 921 for a
spouse. Let us go over some of these grounds, anyway many of them
are common grounds.
One of the grounds for children or descendant if the child
or descendant has been found guilty of an attempt on the life of the
testator, his spouse, ascendants or descendants.
Found guilty implies that there is a conviction by final
judgement. Mere attemept is sufficient. If you try to kill your
brother and you are found guilty therefor, your father can disinherit
you because you are guilty of an attempt against the life of a
descendant of the testator.
Page 63
Supposing you are extended an absolute presidential

pardon, can you still be disinherited? YES. The absolute pardon
does not erase the offense which you have already committed
against the testator.
You attempted to kill your father, but you were not
prosecuted because your family wanted to avoid a scandal. Can you
be validly disinherited? YES. Not because of conviction, but for
maltreatment which can be by means of either words or deeds.
Minura mura mo yung tatay mo sa harap ng maraming tao that is
maltreatment, you can be validly disinherited.
Another ground if a child or descendant accuses the

testator of a crime for which the law prescribes imprisonment of six
years or more, and the accusation has been found to be groundless
If you testify in a criminal case against your father, and your
father is subsequently acquitted by the court because of reasonable
doubt, can you be validly disinherited? I do not think so because
acquittal based on reasonable doubt means that the accusation is not
entirely groundless.
Another is when a child or descendant is convicted of

adultery or concubinage with the spouse of the testator Lets say
you are 26 years old. Your father, who is a widower, marries a sweet
young thing of 21, at tinalo mo yung step mother mo and you are
convicted. That case is covered in the provision it does not
necessarily involve incest.
If a child or descendant, without justifiable cause, refuses to

support the parent or ascendant who disinherits him if you look at
this provision, at first glance, it appears that this ground is useless.
Why? What is the basis of support? Necessity as well as the
corresponding ability on the part of the person who is obliged. In
other words, a parent can demand support from a child only if the
parent does not have money to support himself, and the child, on the
other hand, has the means to provide support. Otherwise, if the
parents have money, he would not even have the right to demand
support from the child because the basis of support is necessity.
Example, your father does not have any money, thus,
demanded support from you. Without justifiable cause, you refuse to
support him, so he disinherits you. Anong nawala sayo? Wala
naman siya pera e, ikaw yung mayroon, so may nawala ba? Meron
din, for all you know, maybe the following week he wins P200M in
the lotto, tapos ka, you are validly disinherited. Therefore, it is not an
entirely useless ground. There is the risk of losing inheritance to
subsequently acquired properties.
Leading a dishonorable or disgraceful life in this

connection, remember that this ground requires the element of
habituallity or continuity. A child or descendant cannot be
disinherited with this ground upon the testimony of a single act.
For example a father comes home unexpectedly early one
afternoon, and, to his shock, he caught his favorite daughter having
the time of her life in her own bed with the family driver who is a
married man. There is no basis for disinheriting that daughter it is
only a single act. Ibang usapan na if the daughter actually cohabits
Page 64
with that married man that is already leading a dishonorable or

disgraceful lfe.
unless there has been a reconciliation between the two of them.

You cannot be more popish than the pope.
Mere conviction of an offense which carries with it civil

interdiction the offense need not be committed against the testator
or any close family member, it may have been done against a total
stranger. What is the reason for this? Because civil interdiction is
merely an accessory penalty attached only to afflictive penalties.
When you are convicted of an offense which carries with it civil
interdiction, that means you must have done something terribly
wrong, and having committed a very serious offense, there is deemed
to be a very wide moral chasm which separates you from your
parent.
If, however, after your father tried to kill your mother, he

was prosecuted and convicted by final judgement, I submit that
despite the reconciliation between them, you can still disinherit your
father. Not on the basis of (8) of 920, but on (2) on the basis that
the parent or ascendant had been convicted of an attempt against the
life of a testator, his spouse, ascendants or descendants UNLESS,
there has been a reconciliation between your father and yourself.
Because then, the general rules on reconciliation under 922 would
apply reconciliation will deprive the offended party of the right to
disinherit, and will also render ineffective any disinheritance
previously made. When is there reconciliation? Reconciliation is
much more than mere pardon. A lot of people on their death beds
would generally extend an absolute general pardon to all the people
who may have offended them which is quite natural for persons who
are at the brink of death that is not the reconciliation contemplated
of. Reconciliation means that the pardon is extended to the offender
and the offender accepts the pardon, and there is a restoration of the
former relations between the parties that is reconciliation.
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.
The first one in the grounds for parents and ascendants is

when the parents have abandoned their children or induced their
daughters to lead a corrupt or immoral life or had attempted against
their virtue
With respect to abandonment, it applies to both male and
female members of the family. The second part, inducement to lead
a corrupt or immoral life or attempt against their virtue, applies only
to female members of the family daughters and granddaughters.
Mere attempt of one parent against the life of the other
gives the children and descendants the right to disinherit the parent.
If your father tried to kill your mother, you can disinherit your father,
Remember one of the grounds of disinheriting a spouse is if

a spouse has given cause for legal separation this used to be under
the Civil Code, but now under 55 of the Family Code, sangkatutak
ang grounds for legal separation. Even mere alcoholism, repeated
physical violence or even grossly abusive conduct are grounds for
disinheritance. Mahilig ka makipag inuman sa kabarkada mo sa
bahay ninyo, at pag lasing ka na tatawagin mo asawa mo Hoy
tabachoy, lagyan mo nga ng pulutan dito pag paulit-ulit yan
grossly abusive conduct na yan. You can be disinherited for giving
Page 65
cause for legal separation. Just have a run down on the grounds for
legal separation, as there is nothing complicated about them
I call your attention to 923 if a person is disinherited, but
he happens to have children and descendants, his children and
descendants will be able to get at least the legitime. What is the
reason for this? The law is just being fair and equitable and even
compassionate to the children of a validly disinherited heir. If your
grandfather validly disinherits your father, it means your father must
have done something terribly wrong, mabibigat yang grounds for
disinheriting a child or descendant especially in a Filipino or Asian
culture. It also means you are very unfortunate that you have that
kind of father. If the law would not allow you to inherit, not even the
legitime, thats double jeopardy sobra sobrang parusa yun. As it
is, you are already unfortunate for having that kind of a parent, so the
law allows you to get the legitime that your father would have
inherited.
this case, D will not just get his legitime. He will share together with
A, B and C the P120,000 by way of intestacy, thus, each of them gets
P30,000.
Let us assume this time that the testator said I disinherit my
son D. without specificying the cause, and I give my entire estate
to my children A, B and C. so there is no preterition. This is where
D would be limited to his legitime. Legitime for the children is of
the estate, which is P60,000, thus, each of them is entitled to a
legitime of P15,000. The other P60,000 in the free portion, under the
testament of X, shall go to A, B and C only, thus, each of the three
will get a total of P35,000, while D only gets P15,000.
Supposing that D is validly disinherited he does not get
anything. But if he has two children E and F, the legitime of P15,000
will go to them under 923.
If a compulsory heir is invalidly disinherited, what does he

inherit? The usual answer is, he still gets his legitime. An
imperfectly disinherited heir is entitled at least to his legitime. But
there may be situations where he will get something more than his
legitime. When would that be? If the testator did not validly dispose
of his free portion. In that case, the imperfectly disinherited heir will
get not just his legitime, but also his entire intestate share.
Lets assume that X has four legitimate children A, B, C and
D. He says in his will I disinherit my son D. without saying why
that is imperfect. Then he says I institute as my sole and universal
heirs my children A and B. C is not mention, he is obviously
preterited. He leaves an estate of P120,000, how do we distribute? In
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LEGACIES and DEVISES
Can the testator give, by way of a valid legacy or devise,

something which he does not own? YES, as long as the testator
knows that he is not the owner. If the testator gives out, by way of
legacy or devise, something which he erroneously thought he
owned, the legacy or devise is void, UNLESS he subsequently
acquires the thing by whatever title.
If I said By way of legacy, I give you my building at 1710
Donada Street, Pasay. Akala ko saakin, hindi pala. Is there a valid
devise? NO. But two years after the execution of the will, I bought
that building from the owner, and I remained the owner thereof until
my death. Is there now a valid devise? YES. My subsequent
acquisistion has cured the defect.
The testator cannot also give something which already

belongs to the legatee or devisee. For example I give X, by way of
legacy, the car with the plate PUO-117 when I made my will, he
was already the owner of that car there is no valid legacy. Would it
make any difference if after I executed my will, X sold the car to a
third person? NO. The legacy remains void even if the legatee or
devisee subsequently alienates the thing, UNLESS the legatee or
devisee alienates the thing in favor of the testator himself. The
subsequent acquisition of the testator should be considered as a clear
indication of his intention to validate his legacy or devise.
Supposing that I give you, by way of devise, the building

located at 1710 Donada St., Pasay, which I knew was owned by
Mr.ODC alam kong sya at hindi ako ang may ari. Is there a valid
devise? YES. There is an implicit order for my estate to acquire it
from Mr. ODC so that it can be given to you. But what if Mr. ODC
does not want to sell it? You will just be given the value of the
property.
I say in my will although I am the owner of only of the
building at 1710 Donada St., Pasay, the other half belonging to Mr.
ODC, I give the entire property to my friend Eugene. Is there a
valid devise? YES. Does the devise cover the entire property? YES.
With respect to the already belonging to me, there is no problem.
To the half belonging to Mr. ODC, there is an implied order to
acquire that so that it can also be given to you.
Supposing that before my death, the co-ownership is
terminated and, in the agreement I entered with Mr. ODC, we agreed
that the entire property will belong to him and I was paid the value of
my interest, thus, when I died, the entire property belonged to Mr.
ODC. Is there still a valid devise in favor of Eugene? YES. There is
still a valid devise with respect to the belonging to Mr. ODC. With
respect to the I used to own, there is no longer a valid devise
because there has been a revocation by alienation when I agreed
that the entire property will be given to Mr. ODC.
By way of devise, I give you the building in 1710 Donada
St., Pasay, which I knew is currently owned by Mr. ODC. You did
not know that I had that provision in my will and you bought that
property from Mr. ODC two years after the execution of my will, so
after my death, you were already the owner of the building. Would
you have any rights under such circumstances? YES. Since you
bought the property, you are entitled to reimbursement of the price
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you paid for your purchase. If, however, Mr. ODC simply donated
that property to you, you have no right to claim any reimbursement
because your acquisition would have been by gratuitous title.
If the property given is pledged or mortgaged to secure a

recoverable debt, regardless of whether the pledge or mortgage was
constituted before or after the execution of the will, the estate is
obliged to pay the debt and to free the property from that pledge or
mortgage Although 934 mentions only pledge or mortgage, the
same rule applies in the case of antichresis where the security given
for a loan is real properties delivered to the creditor, and the creditor
is allowed to gather the fruits with the obligation to apply the fruits
to the payment of principal and interest, pursuant to a written
agreement.
Any other charge on the property will go with it. So if there
are easements existing on the property not covered by 934, so no
obligation on the part of the estate to work for the extinguishment of
the easement. 934 covers only those encumbrances which are
constituted on property to secure a recoverable debt.
In case of a legacy of a credit or a condonation of a debt,

remember the rule these legacies are rendered ineffective the
moment the testator brings an action for the recovery of the debt.
For example, D owes me P1M and I said in my will I give
my friend F by way of legacy my credit of P1M against D. that is a
legacy of a credit. If I bring an action for collection against D prior to
my death, the legacy is rendered ineffective.
There must have been an actual case filed, hindi pwedeng

demand letter lang.
D owes me P1M and I say in my will I hereby give D, by
way of legacy, the condonation of his debt of P1M. That is a legacy
of condonation. If I bring an action against him, that is also rendered
ineffective.
If the testator is a debtor, and he gives a legacy to his

creditor, the latter will be entitled to collect not just his credit but
also the legacy.
I owe you P40,000. In my will, I said I am giving you, by
way of legacy, P30,000. How much can you collect all in all from
the estate? P70,000 you can collect your credit of P40,000, and the
legacy of P30,000.
Supposing that I said in my will I order that the legacy of
P30,000 be applied to your credit. How much can you collect then?
P40,000 only the amount of the credit. Even if you are able to
collect the P30,000 legacy, you should apply it to your credit, thus,
you are still entitled to P10,000.
You distinguish the rules applicable to a legacy of generic

personal property and a devise of a generic real property If the
testator gives, by way of legacy, generic personal property, and after
his death, it is discovered that the estate did not own any property of
that kind, there is still a valid legacy.
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For example the testator said I give my friend F, by way of

legacy, a car. After the death of the testator, wala naman pala syang
kotse. Is there a valid legacy? YES. The estate will simply acquire a
car and give it to F.
In the case of a devise of a generic real property, if there is
no property of that kind in the estate, the devise is void.
For example, the testator said I give my friend F, by way of
devise, 10 hectares of rice land. After the testators death, it is
discovered that, while he owns hundrends of hectares of sugar and
coconut land, he did not own a single square meter of rice land the
devise is void, applying the provisions of 941.
Remember the rules for legacies for support and education

a legacy for education lasts even beyond the age of majority, until
the legatee is able to finish some professional or other course,
provided he pursues his studies diligently.
a legacy for support lasts during the entire lifetime of the legatee.
When does a legatee or devisee acquire a right? With respect
to pure and simple legacies and devises, the legatee and devisee
acquires a right from the moment of death of the testator.
But what about ownership, as distinguished from the right?
When does the said legatee or devisee acquire ownership of the
thing? Again, if the legacy or devise is pure or simple, and the thing
given belongs to the testator, then ownership should be considered
acquired also at the moment of the testators death.
In 911, we discussed earlier that if the free portion is not

sufficient to cover all the legacies and devises, what is the order of
preference? First, the preferential legacies and devises, and second,
all others pro rata. In 950, however, we come across another order of
preference which is quite longer. The order is:
(1) Remuneratory legacies and devises;
(2) Preferential legacies and devises;
(3) Legacies for Support;
(4) Legacies for Education;
(5) Legacies and devises of specific and determinate things
which form part of the estate; and
(6) All others pro rata.
The question is, when do you apply the order of preference
in 950? Only when the conflict is exclusively among the legacies
and devises. In other words, when there are no legitimes to be
protected and no donations inter vivos, at puro sa legacies at devises
lang ang conflict thats the time you apply 950. Otherwise, if there
are donations inter vivos, you apply 911.
By the way, when is a legacy or devise considered
remuneratory? The same concept with remuneratory donation if it
is intended to recompense previous services which does not
constitute demandable debts.
For example pinamanahan mo yung kaklase mo na palagi
nag didikta sayo pag nag rerecite ka that is remunatory.
Yung kapit-bahay mong doktor na palagi mo kinukunsulta sa
umaga, at dahil kapit-bahay nireresetahan ka ng walang bayad if
you give him something by way of your will, that will be
remuneratory in character.
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957 gives us three situations or causes which would render

the legacy or devise ineffective:
(1) Transformation;
(2) Alienation; and
(3) Loss.
When is there transformation? If the thing given by way of
legacy or devise is changed in such a way that it has not retained its
form or denomination. In these sense, the meaning of form is
physical appearance, and denomination is the name by which the
thing is called.
For example, if a table has been given to you by way of
legacy, but before the testators death, the testator used the table as
wood material in making a chair that is transformation, there is a
change in the physical appearance and in the denomination.
The testator gave you, by way of devise, his farm in
Bulacan. Before his death, he converted that farm into a resort
wherein he constructed pools and cottages that is also
transformation which renders the devise ineffective.
You were given, by way of legacy, a ring with a diamond
piece. Before the death of the testator, he had that ring converted into
a necklace or pendant your legacy has been rendered ineffective.
When it comes to alienation, the only question you ask is:

Did the testator intend to permanently part with the ownership of
the thing? If the answer is YES forget about the legacy or devise, it
has been rendered ineffective.
If the Loss took place during the lifetime of the testator, the
legacy or devise is ineffective regardless of the cause of the loss.
For example, the testator gives you, by way of legacy, a
grand piano. One day before his death, because of his frustrations
ibinalibag nya yung piano or he burned the piano. Regardless of the
cause of the loss, as long as it took place during the lifetime of the
testator, it will render the bequest in your favor ineffective.
If the loss occurred after the death of the testator, you
should determine the cause.
If the loss is caused by a Fortuitous event, without the fault
of the heirs, it renders the bequest in your favor ineffective.
But if the loss happened because of the fault of any of the
heirs, you can recover the value of the property. As a matter of fact,
that is one of the circumstances under the law where solidarity is
imposed. Thus, if several heirs take possession of the hereditary
estate after the death of the testator, they are solidarily liable for any
loss.
If the testator gives you something in his will, and later on he

sells that thing the legacy or devise in your favor is rendered
ineffective by alienation. UNLESS the alienation is temporary in
character, as in the case of a sale with a right to repurchase and he
in fact repurchased it.
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Last point under this topic is 959 a disposition made in

general terms in favor of the testators relatives shall be understood
to be in favor of those nearest in degree.
The only rule applicable here is the rule on proximity, the
other rules like preference between lines or representation does not
find applicability here. You simply count the number of degrees,
whoever are the nearest relatives in terms of degrees, whether in the
direct or collateral line, sya ang mag mamana.
Notice that neither did we apply the preference between

lines. Ordinarily in succession, the ascending line is preferred over
the collateral line. But as said, other rules are not applicable, only
proximity find application in 959.
However, be careful in applying this provision. If, for

example, the testator X says in his will I give my house and lot in
Quezon City to those who are entitled thereto. You do not apply
959 in this case. What do you apply? You give it to those who are
entitled thereto under intestate succession.
If, however, he instead said I give my house and lot in
Quezon City to my relatives. 959 would be applicable. Assume
further that his relatives are the following:
His father (F)is dead but his Grandfather (GF) is still alive;
His Uncle (U), the brother of his father, is also alive;
A and B, his two brothers are still alive;
His third brother C is dead, but is survived by a son D; and
His wife (W) is still alive.
Applying 959, we consider those who are nearest in degree,
thus, we simply count each of their degrees:
GF 2 degrees
A and B 2 degrees
U 3 degrees
D 3 degrees
So who will inherit? GF, A and B. What about D, can he not
represent C? NO, there is no representation under 959.
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INTESTATE SUCCESSION
Intestate Succession is much simpler than Testamentary

Succession. You just remember certain important points.
Remember the rule on Preference between lines that is an
underlying principle in intestate succession the direct descending
line is preferred over the direct ascending line. On the other hand,
the direct ascending line is preferred over the collateral line. This is
the reason why if there are legitimate children or descendants, the
legitimate parents or ascendants are excluded.
If there are no children and descendants but there are parents
and ascendants together with brothers and sisters of the deceased, the
parents and ascendants exclude the brothers and sisters, who are
merely collateral relatives.
Also remember the rule on Proximity the nearer relatives

exclude the more distant ones. This rule, however, must always yield
to the order of intestate succession. Kahit na mas malapit ka, kung
meron mas mataas ang rango sayo in the order of intestate
succession, sorry ka.
Thus, we should also remember the Order of Intestate
Succession there are two: the regular and the irregular order.
You apply the regular order if the deceased is a legitimate person.
Irregular order, on the other hand, is for an illegitimate person.
Thus, numbers (1), (4) and (5) are common in both orders.
The irregular order is shorter by one number. After number
(5), the next is already the (6) State. In the regular order, number (6)
is other collateral relatives within the 5th degree, the state is only
number (7).
In the regular order, number (2) is the legitimate parents
and ascendants, then number (3) is the illegitimate children and
other descendants. Itong parents at illegitimate children,
magkabaliktad ang position sa irregular order. But take note, in
number (3) of the irregular order, only the illegitimate parents are
considered legal heirs, the other ascendants are not considered the
same rule as I earlier said in legitime. Pag ang namatay ay
illegitimate person, the direct ascending line is hanggang illegitimate
parents lang ang rights.
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Some of these heirs can concur, pwede mag sabay, while

some exclude the others.
classes are in the 3rd degree, the uncle is excluded by the presence of
C and D proximity yields to the order of succession.
The legitimate children and other descendants excludes the

legitimate parents and other ascendants, but they do not exclude the
illegitimate children and the surviving spouse.
In connection with proximity, we also have to take into

account the rules of Representation. Why? Because by the right of
representation, a further relative becomes just as near.
The surviving spouse does not exclude the brothers and

sisters. If the survivors are the spouse, brothers and sisters, what is
the distribution? for each class. But the surviving spouse excludes
the other collaterals, as well as the state.
Right of Representation
Brothers, sisters, nephews and nieces exclude the other

collateral relatives. If you die being survived by your brother and by
a first cousin, the first cousin is excluded.
The presence of illegitimate children in the irregular order is
enough to exclude the illegitimate parents. If the person who dies is
illegitimate, and he is survived by his illegitimate children, his
illegitimate parents are excluded.
We previously said that the rule of proximity yields to the

order of succession. Lets assume that X is the decedent and he dies
intestate. He is survived by his uncle U, his two nephews C and D
the children of his predeceased brothers A and B. If you count the
number of degrees separating U, as well as C and D, from X, you
will notice that they are all three degrees away. Ordinarily, if you are
separated with the same number of degrees from the decedent, you
should all inherit equally. But the fact remains that under the order of
intestate succession, C and D belongs to category (5). The uncle,
although also a 3rd degree relative, belongs to category (6). The
presence of category (5) excludes those in (6). Thus, although both
What are the rules of representation?

(1) There is representation not just in intestate succession,
but even in testamentary succession, but in the latter case,
representation applies only to the legitime.
If a compulsory heir is given a part of the free portion and he
dies ahead of the testator, leaving his own children and descendants,
he cannot be represented by such children and descendants insofar as
the free portion is concerned. But he can be represented by those
children and descendants insofar as his legitime is concerned.
(2) There is representation only in the direct descending
line, and NEVER in a direct ascending line. Your grandfather
cannot represent your father.
(3) There is no representation in the collateral line,
EXCEPT when only the nephews and nieces survive with at least
one uncle or aunt.
(4) There is no representation in case of Repudiation. An
heir who repudiates cannot be represented. If your father repudiates
an inheritance from your grandfather, you cannot represent your
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father.
However, an heir may represent him whose
inheritance he has previously repudiated.
To illustrate: X dies survived by his children A and B, and
by C his grandson with B. Subsequently, B repudiates his inheritance
from X, thus, C cannot represent B and everything will go to A.
Lets assume that B predeceased X. When B died, C
repudiated the inheritance from B. Later on, X dies. Can C represent
B insofar as the inheritance from X is concerned? YES. An heir can
represent him whose inheritance he has earlier repudiated.
Another important point if the person to be represented is

a legitimate, the representative must also be legitimate. On the other
hand, if the person to be represented is an illegitimate, the
representative may either be legitimate or illegitimate.
Lets assume that X has two children: A is legitimate; and B

is an illegitimate. A has two children of his own: C who is
legitimate; and D who is illegitimate. B also has two children: E who
is legitimate; and F who is illegitimate. A and B both died ahead of
X, thus, when X died, he was survived by C, D, E and F. Who can
inherit by representation?
In the case of A, only C can represent him because he is a
legitimate, therefore his representative must also be legitimate. D is
not allowed, you have the barrier between legitimates and

legitimates under 992 an illegitimate child cannot inherit ab
intestato from the legitimate children or the other relatives of his
parent, neither can those relatives inherit from him.
In the case of E and F, they can both represent B because B
is himself illegitimate. In the case of this line, according to Justice
Jurado, F is a son of a gun, B is a bigger son of a gun, and X is the
biggest son of a gun of them all, so no problem, there is no barrier.
But even in the exercise of a right of representation, do not
forget, the ratio of two is to one (2:1) should always be observed
between legitimates and illegitimates.
Thus, if B is supposed to receive P30,000 P20,000 will go
to E, while F will only get P10,000. The ratio should always be
maintained.
Grandchildren always inherit by right of representation,

EXCEPT if all of the children repudiates that is the only time
when grandchildren can inherit in their own right, applying the
provisions under 969. Kapag lahat ng anak nag repudiate, at ang
natira puro mga apo, applying 969, they are the next in degree, thus,
they will inherit in their own right, not by right of representation.
Therefore, the distribution will not be by stirpes but per capita.
I have earlier mentioned 992 the barrier between

legitimates and illegitimates, and that the reason is that there is
supposed to be an animosity between them where the former looks
down on the latter as a product of sin while the latter looks with
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envy upon the former. However, the barrier applies only in intestate
succession. If you have an illegitimate half-brother, there is nothing
which can prevent you from instituting him as an heir.
Also be careful on instances like the case of DelaMerced
in that case, there were brothers and sisters A, B, C and D. B had an
illegitimate son S. Upon the death of A, his siblings B, C and D
inherited his estate. Later on, B died, and upon his death, his son was
claiming his entire estate. C and D opposed and said teka muna,
karamihan ng properties dyan ay galing kay A. You are illegitimate,
you cannot inherit these properties. Would they be correct, applying
992? NO. Instead, what should apply here is 777 from the moment
of death of A, successional rights were transmitted to B, C and D.
Thus, when B died, the properties which he inherited from A were
already his own. S is not inheriting from the legitimate relatives of
his father B, but from his own illegitimate parent, thus, he is clearly
entitled to inherit.
Intestate Shares
Rule of Thumb: the legitimates always get , whether they
be legitimate children or, in their absence, legitimate parents and
ascendants.
Survivors Legitimate parents, Illegitimate children and
Spouse:
to Legitimate parents
to Illegitimate children
to surviving spouse
Survivors Spouse and Brothers & Sisters, Nephews &

Nieces
to Spouse
to Brothers & Sisters, Nephews & Nieces
Basta sa intestate succession, walang matitira, unlike in the
case of legitimes. This is somewhat similar to a closing-out sale
everything must go.
Survivors One legitimate child and Spouse:
to each of them.
Survivors Illegitimate children and Spouse:
to Illegitimate children, and other half to the spouse.
Survivors Legitimate children and Illegitimate children:
For the distribution in this case, you have two theories the
concurrence and the exclusion. I suggest you follow the former.
Lets assume that X dies with two legitimate children A and
B, and two illegitimate children C and D. The estate is P120,000. X
dies intestate. Whether it is concurrence or exclusion, the safe thing
for you to do is first give them their legitimes always make sure
that the legitimes are not impaired. We know that the ratio between
legitimates and illegitimates is 2:1, but do not apply this ratio
directly. Why? If you do so, there would be a possibility that the
legitime of the legitimates might be impaired in cases where there
are numerous illegitimates and only few legitimates. So to make sure
there will be no impairment, you first give them their legitimes.
Thus, of P120,000 is P60,000 A and B are entitled to P30,000
each. Under the Family Code, the illegitimates are entitled to of
that of the legitimates, thus, P15,000 each for C and D. There would
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then be a remainder of P30,000. This remainder is where

concurrence and exclusion would vary.
with respect to the part of the estate not disposed of by will, intestate
succession will govern.
Under the exclusion theory, the P30,000 shall go to A and B

to the exclusion of C and D. Why? Because they are first in the order
of intestate succession. Thus, A and B gets an additional P15,000
each.
Without the legacy of P10,000, the distribution would have

been: or P60,000 to A and B; or P30,000 to C and D; and
another will go to W.
The problem with the existence of the legacy is the question
of where to get this P10,000? From whose share? Remember the rule
in a situation such as this you satisfy the legacy by deducting it
from the intestate share of the legal heir whose intestate share is
bigger than his legitime.
Under the concurrence theory, the P30,000 will be spread

out among all of them following the proportion of 2:2:1:1 to A, B, C
and D, respectively. Thus, 1/6 or P5,000 each would go to C and D,
and 2/6 or P10,000 each would go to A and B. Therefore, A and B
will end up with P40,000 each; C and D will end up with P20,000
each. Note that the ratio of 2:1 is maintained that is the
concurrence theory, which, I submit, is the better theory because it
takes into account the ratio which is established by law between
legitimates and illegitimes.
When it comes to Adopted children, just treat the adopted

child just like a legitimate child.
Another point I want to stress is the problem of Partial

Intestacy or Mixed Succession.
Lets assume that X dies with a will that has only one
provision wherein he said I give P10,000 to my friend Kiko. He
dies with an estate of P120,000. He is survived by his legitimate
parents A and B, his wife W, and his two illegitimate children C and
D. This is obviously a case of mixed succession, because, while he
had a will, it did not dispose of the entire estate. Thus, the rule is
One by one, we first go to the legitimate parents. The

legitime of A and B is or P60,000, while their intestate share is
also , thus, hindi natin pwede bawasan because A and B are
entitled to nothing less than that . We cannot just deduct the
P10,000 from P120,000 then simply distribute the remainder
according to , and mali yon. Anything less than P60,000
would amount to an impairment of legitime.
Lets go now to the illegitimate children. Their legitime is
or P30,000, while their intestate share is also , thus, hindi ulit
pwede bawasan.
To the surviving spouse this time. Ws legitime is only 1/8
or P15,000, while her intestate share, however, is or P30,000. If
we deduct the P10,000 legacy from her intestate share, she will still
receive P20,000 which is still more than her legitime. Thus, this is
how we satisfy the legacy, because her legitime would not be
impaired even after the charge.
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Recall the rule of double share for full-blood collaterals

which we discussed earlier in reserva troncal full-blood brothers,
sisters, nephews and nieces gets twice as much as that of the halfblood brothers, sisters, nephews and nieces.
Remember that this rule applies only to brothers, sisters,
nephews and nieces, and does not apply with other collateral
relatives such as grandnephews, grandnieces, first-cousins, etc. pag
dating sa mga yan there is no distinction between full-blood and
half-blood.
Page 77
PROVISIONS COMMON to TESTATE and INTESTATE

SUCCESSION
One of the most common here would be Accretion.

What is the Right of Accretion?
As defined in 1015 it is a right by virtue of which, when
there is a vacancy in inheritance caused by predecease, incapacity
or repudiation, in case two or more persons are called to the same
inheritance, legacy or devise, the vacant portion is given to his coheirs, co-legatees or co-devisees.
Illustration:
I said in my will I give my house and lot in Leonumville to
my friends A, B and C. In this case, there is unity of object only
one property is given, and plurality of subjects it is given to more
than one individual.
If A should predecease me, his 1/3 share will go by
accretion to his co-devisees B and C.
I said in my will I give the entire free portion of my estate

to A, B and C. But A is incapacitated, or later on repudiates. His 1/3
share will thus go the B and C by right of accretion.
or to the same portion thereof, pro indiviso; and

(2) that there is a vacancy caused by RIP (Repudiation,
Incapacity or Predecease)
When is there Accretion in Intestate Succession? The law
provides in 1018 in legal succession, the share of the person who
repudiates shall always accrue to his co-heirs. But what about
incapacity and predecease in intestate succession? Is there also a
right of accretion? Actually it is a disputed point. In one school of
thought there is accretion, applying 1016 by analogy. The other
view is that there is no accretion in intestate succession in case of
incapacity and predecease. Why? 1018 mentions only repudiation. If
the intention is to include predecease and incapacity, the law would
have expressly mentioned them too. Moreover, some civilists like
Justice Jurado says In reality, there is no vacancy in intestate
succession in the case of predecease and incapacity, but only in
repudiation.
Can there be accretion if what is given is money or other

fungible things? YES. As long as there has been no ear-marking
this means physical segregation.
Thus, if I say in my will I give the balance of my savings
account in BPI to my friend A, the balance of my current account in
Metrobank to my friend B, and to C the money which I keep in my
filing cabinet at home. If A dies ahead of me, will there be an
accretion in favor of B and C? NO, because there had been earmarking.
1016 gives us the Requisites for Accretion for

Testamentary Succession (1) two or more persons are called to the same inheritance
Page 78
There problem arises in determining when to apply

accretion, and when to apply the other rules of succession in dealing
with vacancies.
In order for us to discuss further, we need to briefly go over
everything that we had discussed so far and look at the subject
Succession at a higher vantage point.
What is the underlying principle in the law of Succession?
Based on one of the theories, succession is merely an extension of
the rights of ownership. Consequently, another basic underlying
principle which actually permeates the law on succession is the
primacy of the will of the testator. Because of this, it is testacy
rather than intestacy which the law categorically prefers.
Therefore, the first thing to do in succession is simply to
determine the will or intention of the testator. Applying that
criterion, we first follow the will. Thus, we give the properties to
those instituted as heirs, given legatees or devisees that is the
number 1 rule, sundin ang gusto ng testator.
Legitimes are, however, off-limits to the testator hindi nya
pwedeng pakialaman yan. The only way that he can legally prevent
a compulsory heir from inheriting is through a valid disinheritance.
But generally, the legitime is beyond the reach of the testator.
However, the legitime cannot be made subject to any

substitution, condition or any encumbrance. Thus, if there is a
vacancy caused by RIP, insofar as the legitime is concerned, there
can be no substitution. Instead, what you can apply are the rules of
representation. When it comes to other portions such as the free
portion or legacies and devises purely voluntarily given, substitution
ang iaapply mo.
If representation is not proper under the circumstances, or if
there is no substitute, and there came a vacancy, what is your next
option? Dyan papasok ang accretion give it to the co-heirs, colegatees or co-devisees.
But what if there are no more qualified co-heirs, what are
you supposed to do with the vacancy? The last option is always
intestate succession give it to the legal or intestate heirs.
Is it still possible that there be no more legal or intestate
heirs left? NO. Remember that in both regular and irregular order,
nasa buntot ang ating kabalikat sa kaunlaran the State is always
there. For example, in the case of a legitimate person, if you do not
have any relative left within 5 degrees from you, the State will
inherit your estate.
Thus, after giving what is due to the instituted heirs, legatees

and devisees, we give the legitime to the compulsory heirs.
The power of disposition of the testator includes not only the
power to institute or designate his heirs, legatees and devisees, but is
also given by law the right to name the substitutes in case of RIP.
Page 79
To further simplify the application of rules and provisions in

case of vacancy in succession, consider the following graph:
To illustrate an application of the graph, lets assume that X

has four legitimate children A, B, C and D. C has two legitimate
children E and F. D has one legitimate child G. X dies with a will
wherein he instituted all his children as his heirs to his entire estate
of P120,000. C, however, predeceased, and D repudiated. How do
we distribute?
Page 80
Your starting point should always be with how the

distribution would have been if there was no vacancy.
Thus, without vacancy, A, B, C and D would have received
their legitimes as well as their shares in the free portion because the
entire estate was given to them. Their legitimes would have been
P15,000 each as compulsory heirs and their share in the free portion
as voluntary heirs would have been also P15,000 each, giving them a
total of P30,000 each.
Applying the graph, we first deal with C the predeceased. To
whom will his P15,000 legitime go? E and F by way of
representation this is the first applicable rule in legitimes, thus,
P7,500 to each of them.
What about the P15,000 share of C in the free portion as a
voluntary heir? Look first if there is a substitute designated by the
testator wala, so the next option is accretion. Who are the co-heirs
of C? They are A and B, you forget about D because he repudiated.
Thus, P7,500 each to A and B by right of accretion.
Next is the share of D in the free portion as a voluntary heir.
Again, is there a substitute? Wala, so accretion tayo, si A and B
nanaman ang co-heirs. The P15,000 share of D as a voluntary heir
will be shared by A and B at P7,500 each by way of accretion.
Finally, the P15,000 legitime of D. An heir who repudiates
cannot be represented. Wala din siyang co-heirs, he is the only one
called to that legitime. You have no choice but to give it to the legal
or intestate heirs of X. Who are these? A and B, as well as E and F
by right of representation. Thus, the P15,000 will be divided into
three parts 1/3 or P5,000 each for A and B, then E and F will
divide the share which would have pertained to C if he did not
predeceased, therefore they will each get P2,500 each to be added to

their P7,500 share in their represented legitime of C. In the ultimate
account, E and F will end up with P10,000 each, while A and B will
end up with P50,000 each.
If it is intestate succession, it will be easier. The starting

point is the same determine the distribution if there were no
vacancies. Thus, since there are four legitimate children, you simply
divide the entire estate by four each one would have received
P30,000 as intestate share.
Kanino mapupunta yung P30,000 vacant share of C? It
should go to his representatives. Does he have qualified
representatives? YES, E and F. Thus, by right of representation, each
of them gets P15,000.
What about the repudiated P30,000 share of D? That belongs
to A and B by right of accretion, thus, P15,000 to each of them.
Therefore, A and B will end up with P45,000 each, while E
and F will each get P15,000.
It is always much simpler if the vacancy occurs in intestate
succession because, for one thing, you dont distinguish between
legitime and free portion but rather to the entire estate.
Page 81
CAPACITY to SUCCEED
In the case of Natural persons, they can only succeed if

they were living at the time of the opening of the succession.
Remember, however, that even an unborn but already conceived
child can already inherit, provided that it is born later under the
conditions specified by the law. If the child had an intra-uterine life
of less than 7 months, it must survive for 24-hours from the time of
separation from the maternal womb there is separation when the
umbilical cord is cut. If the child had an intra-uterine life of 7
months or more, all that the law requires is that it should be alive at
the time of separation from the maternal womb even if it dies five
minutes later.
With respect to Non-Natural persons or entities and
associations, it is possible for them to inherit even if they do not
actually have a separate juridical personality. For example,
associations for religious, scientific, cultural, educational or
charitable purposes under 1026 can inherit. There may be
dispositions made in general terms for prayers and pious works for
the benefit of the soul the soul does not have juridical
personality, but it is allowed to actually benefit under a will. There
may be provisions in favor of the poor in a locality.
Recall the provisions of 43 of the Civil Code if there is a
doubt, as between two or more persons who are called to succeed
each other, as to who died first, whoever alleges the death of one
ahead of the other must prove the same. In the absence of proof, it is
presumed that they died at the same time and there shall be no
transmission of rights from one to the other. However, this provision
does not preclude the application of the rules of representation.
For example, nobody knows who, between the father and the
son, died first, but the son happens to have his own children and
descendants. I submit that the children and descendants, in this case,
can inherit from the grandfather by the right of representation.
1027 enumerates certain individuals who are incapacitated to

inherit:
(1) The priest who heard the confession of the testator
during his last illness, or the minister of the gospel who rendered
spiritual aid to him during the same period the incapacity extends
to the relatives of the priest within the 4th civil degree, as well as to
the church, chapter and community organization to which he
belongs.
The basis of this prohibition is the possibility of undue
influence.
If the testator confessed to five different priests during his
last illness, all five becomes incapacitated. In other words, the
confession need not be the last confession. As long as it was made
during the last illness, the priest who heard it will be incapacitated.
However, if the priest did not hear the confession, as when
they would instead pray the rosary or read the bible together during
visits, the priest will not be incapacitated. He must have actually
heard the confessions.
For ministers of other religious denominations, it is
sufficient that they had extended a spiritual aid to him during the
same period.
Page 82
Thus, if a protestant pastor visited the testator during the

latters last illness, and they read the sacred scriptures and prayed
together that will be sufficient to incapacitate the pastor, but not for
a catholic priest.
Supposing that the testator had a friend who is a priest Fr. P.
He made his will while he was very healthy, wherein he gave part of
his estate to his priest friend. During his last illness, he called his
friend Fr. P to hear his confession. Can Fr. P still inherit after hearing
his confession? YES, the incapacity would not attach. Why? There is
no possibility of undue influence matagal na nagawa yung will eh.
Thus, 1027 does not affect the legitime. If a compulsory
heir is incapacitated under this provision, he can still get his legitime.
Why? Because there is no possibility of undue influence insofar as
the legitime is concerned. Why not? The legitime is something which
is totally beyond the control of the testator, whether he likes it or not
it will go the compulsory heirs.
1027 does not also apply to intestate succession, but only
in testamentary succession. This is because the law repeatedly uses
the word testator and again, there is no possibility of undue
influence when it comes to intestate succession. It is the law itself
which mandates how the estate will be distributed depending upon
who the survivors are.
(3) Guardians with respect to their wards, if there are
dispositions made by the ward before the final accounts of the
guardianship have been approved remember that in this provision,
there is a built-in exception: any provision made by the ward in favor
of the guardian, when the latter is his ascendant, descendant,
brother, sister or spouse, shall be valid.
(4) Any attesting witnesses to the execution of the will, their

spouse, parents or children, or any one claiming under them this is
simply a reiteration of 823, therefore, it should be read in
conjunction with the latter article. Thus, there should also be an
exception: UNLESS, there are three other competent witnesses to the
execution of the will.
(5) Physicians, surgeon, nurse, health officer or druggist
hindi yan adrug adik o durugista, that is the pharmacicst if they
took care of the testator during his last illness they must have
actually taken care of the testator during that period.
If a doctor was simply consulted by the attending physician,
but not actually treated the testator, he is not incapacitated.
There is an interesting question Suppose that the doctor
who took care of the testator during the last illness was the latters
own son, does the incapacity apply to that son? There are two
different views. According to the first view, if the doctor or nurse
who took care of the testator during his last illness is a close relative
like a son, the incapacity should not apply. Why? The true Filipinos
first impulse is to rush to the side of a dying parent. If you happen to
be a doctor or a nurse and you do not take care of your own dying
parent, the entire barangay will ostracize you.
The other view says that the son, who is also the doctor who
took care of this father during the last illness, is incapacitated. Why?
Because there does not seem to be an intention on the part of the
legislature to exempt close relatives. In comparison, (3) expressly
provided for an exception that it does not apply to guardians who
are closely related to the ward. If it was intended by the legislature to
recognize a similar exception in (5), they would have expressly done
so.
Page 83
Assume that X is survived by the following:

(1) his first cousin FC a 4th degree relative
(2) his three children A, B and C
Fr. A is a priest, who heard his fathers confession during
Xs last illness. The will was made during that period, wherein he
said I give my entire estate to my three children, A, B and C. Dr. B
is a doctor, who took care of his father during the same period. X
died with an estate of P120,000. How do we distribute?
First point, as I said, 1027 does not affect the legitime. Thus,
there is no question that they will still receive their legitimes despite
their incapacity. Bakit si C nasama? He is a relative of the priest
within the 4th degree, hagip din sya nun, pero hindi si FC. Does this
mean that the entire free portion would go to FC? NO. What are you
supposed to do with the vacancies created? You apply the rules of
intestate succession, and the first in the order of intestate succession,
whether regular or irregular, is legitimate children and descendants.
Thus, the entire estate will still end up with A, B and C. I repeat,
1027 does not apply and is without prejudice to intestate succession.
In 1029 a disposition made for prayers and pious works, in

general terms, will mean a 50-50 division. 50% to the church or
denomination to which the testator may belong, and the other 50%
will be given to the State for the purposes mentioned in 1013 (for the
benefit of public schools, charitable institutions,etc.)
You dont apply the 50-50 rule if the testator specified the
application. Thus, if what the testator said was I leave the P100M
for prayer and pious works for the benefit of my soul. you apply
the rule. But he said I leave P100M for prayers for the benefit of my
soul. In this connection I order that there should be 1,000 masses for
me everyday all throughout the Philippines in different parishes and
churches, there should be special prayers for me every tuesday in St.
Anthonys shrine, every wednesday in Baclaran, every thursday in
St.Jude, and every friday in Quiapo. Then the entire P100M will be
spent on what he specified you do not apply the 50-50 rule.
Just to emphasize a point regarding the adopted child.

Generally, you treat an adopted child just like a legitimate child.
When it comes to inheritance from the adopted child, will the natural
parents still inherit anything from him? Actually, this is a disputed
point. But, I am inclined towards the view that you still apply the
Family Code provisions despite the very broad language of Sec.18
of the Domestic Adoption Law which provides that all legal
ties,(xxx) are terminated and they shall have reciprocal rights of
succession but the heading of that section states Parental
Authority Thus, I submit that the old rule under the Family Code
should still apply if both adopter and natural parents survive, they
should divide equally. Whatever share that is supposed to go in the
ascending line between the parents, share it 50-50.
Along the same line, I submit that the old rule still holds true
when it comes to representation. An adopted child cannot represent,
neither can an adopted child be represented. Adoption creates a
relationship strictly only between the adopter and the adopted. The
latter does not become related in any way to the relatives of the
adopter and vice-versa.
Page 84
The law enumerates in 1032 persons who are considered

incapable of succeeding by reason of Unworthiness. Just go over
these familiar provisions, many of them are also grounds for
disinheritance.
pardon can only come about if the unworthy heir is instituted in the
will of the testator, the latter having full knowledge of the facts
constituting the unworthiness. Since there is no express or implied
pardon, S is still unworthy, thus, cannot inherit.
In (5) any person guilty of adultery or concubinage with the

spouse of the testator note that the spouse is not incapacitated to
succeed for unworthiness. Frankly, I do not understand why. Assume
that X has only one living relative, his brother B. X is married to a
very beautiful lady. He comes home unexpectedly early one
afternoon and catches, in their own conjugal bed, his wife and his
only brother having the time of their lives. X files a case against
them and the two are convicted of adultery. Later on, X dies
intestate, leaving millions in money and property. To who will his
estate go? His unfaithful wife will inherit everything, to the
exclusion of his brother. If his brother was not rendered unworthy, he
would have gotten half.
Suppose that after the S conviction by final judgement, X

disinherited him. But before the death of X, they was reconciliation
between them. This time, he can. Why? When the father disinherited
his son, the father invoked and submitted himself to the rules of
disinheritance. One of the principles of disinheritance in 922 is that a
reconciliation between the offender and the offended party deprives
the offended party of the right to disinherit, and renders ineffectual
any disinheritance previously made. Thus, in this case, the rule
should apply. But if X did not disinherit, there is no basis for the
application of the rule of disinheritance.
According to some civilists, the reason is that the law

presumes in favor of the solidarity of marriage, and would rather
leave it to the testator to decide whether he will disinherit his spouse
anong solidarity, kinaliwa na nga eh. Whats the moral of the
story? First thing is to make a will disinheriting your spouse.
As of what moment should the capacity of the heir be

determined? We again use 777 as basis, thus, the heir must be
capacitated as of the moment of death of the decedent because it is at
that moment that there is transmission of successional rights.
Supposing that S is the son of X. S was convicted of an

attempt against the life of his own father X that is a ground for
disinheritance and a cause for unworthiness. X did not disinherit his
son. However, before the death of X, there was a tearful
reconciliation between them. The question is: can S inherit? NO. He
is unworthy. To erase unworthiness, you need an express or implied
pardon. An express pardon must be in writing, while an implied
If, however, the institution, legacy or devise is subject to a

suspensive condition, there will be two moments to consider:
moment of death; and moment of the fulfillment of the condition. In
that case, capacity should be possessed at both moments. Otherwise,
the heir, legatee or devisee does not inherit.
Page 85
In 1039, remember the four aspects of succession which are

always governed by the National Law of the decedent, regardless of
where the property may be: under 16 of the Civil Code, (1) Order of
Succession; (2) Amount of Successional rights; (3) Intrinsic validity
of testamentary provisions; and, under 1039, capacity to succeed.
ACCEPTANCE and REPUDIATION
Just remember that every gratuitous disposition, whether

by donation or succession, needs Acceptance. Nobody can force his
generosity down your throat. You may be the poorest man, but if you
do not want to accept the generosity of another, no one can force you
to do so. The law has some high regard for individual personal
dignity.
Acceptance and Repudiation should be free and voluntary
acts, and they always retroact to the moment of death. Why?
Again, because of 777. The law does not want to have any
interregnum insofar as ownership of property is concerned that is
the reason for retroactivity.
Acceptance may be express or implied. It can also be either
in a public or private document.
If an heir executes an act of ownership which otherwise he

could not lawfully do, he is deemed to have impliedly accepted.
Note 1050 where the law enumerates three situations when

there would be implied acceptance.
(1) if an heir executes an act of ownership if he sells,
assigns or donates his share. Hindi nya pwedeng gawin yun if he is
not the owner;
(2) if there are several heirs and one of them renounces his
share gratuitously in favor of one or more but not all of his co-heirs
again, that is an exercise of an act of ownership because he is
selecting who will benefit from his share. So even if the renunciation
is gratuitous, he will be deemed to have accepted the inheritance.
(3) if an heir renounces for a price binenta nya yun, he is
deemed to have accepted. But if he renounces gratuitously and it is
done indiscriminately in favor of his co-heirs, and his co-heirs are
the very same persons who would have acquired his vacant share
under accretion, he is not deemed to have accepted.
One of the rights granted to creditors under 1052 if an
heir renounces his share in the inheritance but he has unpaid
creditors, such creditors are allowed to accept up to the extent of
their respective credits this is obviously for their protection.
It is easier to accept than to repudiate. You can even accept
by not doing anything. If an heir does not act within 30 days from an
order of distribution, he is deemed to have accepted the inheritance.
Repudiation may be made in a public document or in an

authentic instrument or by filing the corresponding manifestation
with the settlement court.
Authentic instrument is one whose genuineness cannot be
doubted.
Page 86
PARTITION and DISTRIBUTION of ESTATE
Prior to partition, the heirs are actually co-owners of the

property which they have inherited. Partition is intended to bring
about an end to the state of indivision. It may be done by the heirs
themselves, even extra-judicially under certain conditions. They can
have an ordinary action for partition or in the settlement
proceedings. Usually this is the last thing done by the settlement
court the approval of the project of partition, sometimes the court
would even have to appoint a commissioner to make the proposed
partition.
A testator can make the partition, as a matter of fact, under
1080 of the New Civil Code, a person is allowed to make a partition
of his estate during his lifetime either by will or through an act inter
vivos. As stated by J.B.L. Reyes this is sui generis one of a kind
if a person makes a partition of his estate while he is still alive,
pambihira yang dokumentong yan. He is free to revoke or change it
before his death, but if he does not, that partition is to be respected as
long as the legitimes of the compulsory heirs are not impaired.
1080 takes on added significance in the light of certain
decisions of the SC. I refer to those decisions where the Court
considered void wills as valid partitions.
The best example would be the case of Mang Oy vs C.A., a
ponentia of Justice Isagani Cruz there was an old igorot man who
realized that death was upon him, thus, he decided to make a will. In
that will, he distributed specific properties to specific heirs. He then
called his children to read his will and the latter all agreed to comply
with such will. They even went to a notary public and executed a
document stating that We have read the will of our father and we all
agreed to abide by the provisions of that will. Later on the old man
passed away, and his will was never probated. A problem arose when
some of the children wanted to get the properties given to the others,
which is one of the tragic things that can happen in any family. Upon
reaching the SC, the Court held: that will is void and ineffective, but
it can be considered as a valid partition under what is now 1080.
Does this mean that we can now safely and conveniently
forget about 804 to 814 na pinag hirapan naten memoryahin? Not
necessarily. For a void will to be considered a valid partition under
1080, two essential conditions must be present:
(1) the will must, in reality, be a partition meaning the
will must give out specific property to specified heirs or
individuals in such a way that if you follow the will, there will be no
co-ownership.
(2) the beneficiaries named in that void will must at least be
legal heirs if they are total strangers, there is no way that they can
acquire ownership over the properties given to them under the void
will. Why? Because the law enumerates the modes of acquiring
ownership, and partition is not one of them. You always need a mode
to acquire ownership. If the beneficiaries are at least legal heirs, they
would have a mode of acquiring ownership that is succession.
Effects of Partition
Upon partition, there is mutual reciprocal warranty among
the heirs with respect to title and quality of the portions allocated to
them under the partition.
Page 87
The action to enforce this warranty prescribes in 10 years

from the date the cause of action accrues.
Because everything should really go to him walang karapatan

yung third person.
Remember the three situations where there is no warranty

among the heirs, which youll find in 1096:
(1) if it was the testator himself who made the partition,
UNLESS there is an impairment of the legitimes of compulsory
heirs, or UNLESS it is clear that his intention is otherwise;
(2) if there is an express agreement among the heirs that
there will be no warranty among them;
(3) if the eviction is due to causes which arose after the
partition.
If there are two or more heirs, then a third person gets

included in the partition, then the partition is void only with respect
to the share given to the third person.
A partition is a contract, and just like any other, it is subject

to rescission on the ground of lesion or damage. What is the amount
of the lesion or damage? The same as in ordinary actions for
rescission of contracts. If an heir receives property whose value is
less by at least than that which he is legally entitled to, then he
may ask for a rescission. The prescriptive period is 4 years from the
time the partition is made, which is the same with that of ordinary
contracts.
Worst case scenario there are several heirs, one of them is

omitted, and his share is instead given to a third person. In this case,
it does not necessarily follow that the partition will be rescinded in
the absence of bad faith or fraud. The portion given to the third
person should instead be given to the omitted heir. Thus, there will
be a corresponding obligation on the part of the heirs who
participated in the partition to proportionately contribute to the share
of the omitted heir.
In his connection, remember the case of Viadonon vs CA a
father and three of his children entered into a partition, excluding a
fourth child who was mentally retarded. Later on, the Court said: it
does not mean that the entire partition is void under 1104, unless it is
clear that there is bad faith or fraud. But the heirs who participated in
that partition is obligated to contribute proportionately to the share of
the omitted heir.
In 1104 and 1105, what will be the consequences in case an

heir is omitted or a stranger is included in the partition?
If there is only one heir, but somehow he enters into a
partition with a third person, the entire partition is void. Why?
Page 88

Wills Transcription

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SUCCESSION

Lecture By: Dean Navarro

DISPOSITIONS with a TERM .....

Wills in General .........................................................

Testamentary Capacity and Intent ..........................

LEGACIES and DEVISES .

Holographic Will ..........................................

LEGAL or INTESTATE SUCCESSION ..............

Witnesses to Wills ......................................................

Codicil and Incorporation by Reference ..................

Intestate Shares ...

PROVISIONS COMMON to TESTATE

Republication and Revival ........................................

and INTESTATE SUCCESSIONS ...

Allowance and Disallowance .....................................

Right of Accretion ...

INSTITUTION of HEIRS ......................................................

SUBSTITUTION of HEIRS ...................................................

Acceptance and Repudiation .

CONDITIONAL DISPOSITIONS and

Transcribed by: Bjone Favorito

PARTITION and DISTRIBUTION of ESTATE .. 87

One of the Basic Principles in Succession is the Primacy of

One theory is that succession is simply an Extension of the

The law says it is a mode of acquisition. Therefore it is, by

What is Succession? The law gives us a codal definition in

In succession, there are so-called Subjective and Objective

Transcribed by: Bjone Favorito

been compulsory heirs entitled to legitimes, thats a different story.

Succession may be Testate, Intestate or Mixed.

Under the same provision, however, legacies and devises

Most important is Preterition under art. 854 the omission

Transcribed by: Bjone Favorito

When is a person considered an Heir? If he is given the

Note that the general rule in 793 applies only to legacies

Transcribed by: Bjone Favorito

necessary, and to distribute the same to the street children of

There are two general types of ambiguity:

You give the words of the will their ordinary grammatical

Recall the general rule that testacy is preferred over

TESTAMENTARY CAPACITY and INTENT

The presumption is always on the soundness of mind. We

beings will not necessarily render a person incapacitated to make a

Transcribed by: Bjone Favorito

If there is a dispute later on, the people opposing the probate

If the testator is Juan Santos, and the person requested by

Transcribed by: Bjone Favorito

the ruling in Icasiano should be limited only to the precise

All of the pages should be numbered correlatively in

Why? Because even if page 1 is not numbered, there can be no doubt

The witnesses are required to sign, among other things, on

If, however, the testator invited the witnesses to his

Transcribed by: Bjone Favorito

Supposing the testator was really very sick, he dictated to his

The presence of the notary public is not required at the time

Supposing that an essential fact required is not stated in the

Supposing that the total number of pages is not stated in the

When is there Presence? When there is close physical

the testator signed without him looking. Is there signing in the

If the testator is blind, how do we satisfy the requirement of

805 says if the attestation clause is in a language not known to the

The will must be acknowledged before a notary public.

The notary public is not required to retain a copy of the

If the testator is deaf or a deaf-mute, 807 applies he must