Succession Reviewer Carmelita B. Juanzon

SUCCESSION REVIEWER
Carmelita B. Juanzon
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WILLS AND SUCCESSION
Elements of Succession
Dont go where I cant follow! Sam to Frodo
Q. What are the elements of succession?

A. They are:
1. Mode of acquiring ownership
2. Transfers rights, properties and obligations
3. Transferred by will or operation of law
4. Death of the testator
1. Mode of acquiring ownership
Succession - a mode of acquiring ownership, similar to tradition
Q. Sale is a mode of transferring title, but it is delivery or tradition which

transfers ownership. Are wills similarly a mode of transferring title, with
succession as the means of transferring ownership?
A. No. A will is not equivalent to title or sale. It does not produce the effects
of a deed of sale. It is just one of the modes by which succession can take
effect.
2. Transfers rights, properties and obligations
Q. What rights are transferred via succession?

A. Transmissible rights. An enumeration of transmissible rights is impossible,
but it excludes the following:
a. those which arise from public law (e.g. suffrage, public employment
b. rights arising from purely personal relations
c. rights whose duration is limited by law to the lifetime of the owner
d. those which require intervention of the owner for their exercise
Q. What is the rule on the transfer of obligations?

A. It should not exceed the value of the estate. The obligation of the heirs
cant exceed what he gets.
Q. Does the obligation to pay a sum of money really transfer to the heirs?
A. No. It is not transmitted to the heirs because this is the obligation of the
estate.
Q. Examples of obligations which may transfer to the heirs please.

A. 1. obligation of guaranty (Hemady v. Luzon Surety)
2. if deceased is a lessee for a definite period, paying a periodical
rental, heirs will inherit obligation to pay rent as it falls due together with the
rights arising with the lease contract (Pamplona v. Moreto)
3. Transferred by will or operation of law
Q. Is the will purely up to the wishes of the testator?

A. No. His capacity to dispose of his property is limited by the system of
legitime and forced heirs.
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Q. How is property-----------------------------------------------------------
transferred by operation of law?
A. Under the system of legitime. It is transferred according to the presumed
will of the testator.
4. Death of the testator
Death completes the transfer of title; succession is always mortis causa
Q. When does a person die?

A. General rule: When he dies.
Exception: The instances where he is presumed dead occasioned by
prolonged legal absence.
Ordinary rule: - after absence of ten years

- if he disappears after age of 75 years, 5 years is
sufficient
Extraordinary - the following are presumed dead for purposes of

division of estate:
1. person on board a vessel or aeroplane lost in a voyage,
who has not been heard of for four years since the loss of the
vessel or plane
2. person in the armed forces who has taken part in war
and has been missing for four years
3. a person who has been in danger of death under other
circumstances and his existence has not been known for four
years
Q. When is the person presumed dead?

A. In ordinary circumstances, after the ten or five year period elapses. Under
extraordinary circumstances, from the date that he was last heard of.
CRC: Other writers mention additional requisites such as the existence of

heirs, and the capacity of the heirs. But these are not really important,
because if there are no heirs and the heirs are incapacitated, the State can
always succeed to the property.
Q. Does the testator have to identity the portions to be given to the heirs?
A. No. This is done in partition, which is the process of identifying the portion
to be given to heirs. This is done after the making of the will, after the death
of the testator.
Types of Succession
My friends, you bow to no one. Aragorn kneeling before the Hobbits.
(1)Testamentary - that which results from the designation of an heir, made in

a will executed in the form prescribed by law.
(2)Legal or intestate; or
(3)Mixed - effected partly by will and partly by operation of law.
Q. What property is included in the inheritance of a person?

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A. It includes not only the property and the transmissible rights and
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obligations existing at the time of his death, but also those which have
accrued thereto since the opening of the succession.
Q. Who are the parties in succession?

A. They are:
1. Decedent - the general term applied to the person whose property is
transmitted through succession, whether or not he left a will
2. Testator - if the decedent left a will
3. Heir is a person called to the succession either by the provision of a will
or by operation of law
4. Devisees - persons to whom gifts of real property are given by virtue of
a will
5. Legatees - persons to whom gifts of personal property are given by
virtue of a will
Elements of a will
My PRECIOUSSSSS!!! Gollum
Q. What are the elements of a will?

A. They are:
1. An Act
2. The will should be made by a person
3. Formalities of the will
4. Control over disposition
5. Disposition of Property
6. To take effect after the death of the person.
1. An Act
- pertains to the instrument
- the act of drafting the will is a mechanical act so it may be
delegated to another person
- the act is purely personal
Q. By reason of the will being a purely personal act, what are the things that
may not be delegated to another person?
A. The following cannot be left in whole or in part of the discretion of a third
person:
1. the duration of the designation of the heirs
2. the efficacy of the designation of heirs
3. the determination of the portions which they are to take, when referred
to by name, cannot be left to the discretion of a third person.
NOTE: The will may also take effect immediately upon the death of the
testator. The testator need not even make provisions on the duration and
efficacy of the designation of the heirs.
Q. What does it mean when the determination of the portions cannot be left
to the discretion of a third person?
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A. If the heir is designated by name, his portion has to be assigned. But if a
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class is designated, there is no need to designate the exact portions to be
allocated to each person belonging to that class.
Example: - I designate X as heir, and I give him P5,000.
- I give my collection of law books to 4C (no need to specify
which book goes to whom).
Q. What are the things that may be delegated in the making of a will?
A. The testator may entrust to a third person:
1. the distribution of specific property or sums of money that he may
leave in general to specified classes or causes, and
2. the designation of the persons, institutions or establishments to which
such property or sums are to be given or applied.
Q. What is another implication which arises from the fact that the making of
a will is purely personal?
A. The testator may not make a testamentary disposition in such manner
that another person has to determine whether or not it is to be operative.
Q. Another implication?
A. Joint wills are prohibited. Joint wills are instruments where two or more
persons dispose of their properties to take effect after their death. This is
prohibited because of the possibility of one compelling the other to dispose
of the property in a particular manner. But reciprocal wills (where the will of
two persons contain mutual provisions) are allowed.
Q. Examples.
A. 1. Joint will I, Father, and I, Mother, give all our properties to our son,
X.
2. Reciprocal will
1st will: I, Father, give all my properties to Mother if I die before her.
2nd will: I, Mother, give all my properties to Father if I die before him.
2. The will should be made by a person

Q. What persons may make wills?
A. Only natural persons. Artificial persons may not make wills because their
existence can be perpetual (they do not die) and the disposition of their
properties when they are dissolved is governed by the law which creates
them (e.g. Corporation Code for private corporations, Civil Code for
partnerships).
3. Formalities of the will

Q. What rules govern the formalities?
A. The requirements of form depend on whether the will is attested or
holographic. Art. 805-808 govern attested wills, Art. 810-814 govern
holographic wills.
4. Control over disposition

Q. Is control absolute?
A. No. It is subject to the system of forced heirs and legitimes.
5. Disposition of Property
Q. Is it necessary for the validity of a will for it to contain dispositions of
property?
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A. The SC has decided several cases which say that a will which contains a
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mere disinheritance of an heir is a valid will. In a sense this contains a
disposition of property since disinheritance is an indirect disposition.
Therefore, it is not required for the will to directly dispose of property.
6. To take effect after the death of the person.

Q. Implication?
A. It may be revoked and changed at any time before the death of the
person.
Rules on Interpretation of Wills
That still counts as just one!!! Gimli to Legolas, after Legolas kills Oliphant
Q. What is the general rule on interpretation of wills?

A. If the intention is clear, implement the will. There is no room for
interpretation.
Q. What are the types of ambiguities?

A. They are:
1. Intrinsic (latent) not obvious on the face of the will
e. g. All my books to my cousin Grace. The testator has more
than one cousin named Grace.
2. Extrinsic (patent) obvious from the face of the will itself
e. g. All my books to some of my cousins.
Q. What is the rule on intrinsic ambiguities?

A. You can use extrinsic evidence to resolve the ambiguity, except oral
declaration of the testator. E.g., All my dresses to Grace. The testator has
more than one cousin named Grace. Extrinsic evidence, includes evidence
that one of the cousins Grace is male, or that the testator does not know he
had two cousins named Grace.
Q. What is the rule on extrinsic ambiguities?

A. The testator's intention is to be ascertained from the words of the will,
taking into consideration the circumstances under which it was made,
EXCLUDING oral declarations. You can use only intrinsic evidence, that is,
that found from within the will. E. g. All my law books to some of my
cousins, and the will goes on to say, only to those cousins residing in San
Juan.
Q. Why exclude the oral declarations of the testator as to his intention?

A. Parole evidence rule because the testator reduced the will into writing, it
is conclusively presumed that he intended for it to be a complete repository
of his intent.
Q. What are some other rules on interpretation of wills?

A. They are:
1. The words of a will are to be taken in their ordinary and grammatical
sense, unless a clear intention to use them in another sense can be
gathered, and that other can be ascertained.
2. The words of a will are to receive an interpretation which will give to

every expression some effect, rather than one which will render any of
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the expressions inoperative; and of two modes of interpreting a will,
that is to-----------------------------------------------------------
be preferred which will prevent intestacy. (n)
3. The invalidity of one of several dispositions contained in a will does not
result in the invalidity of the other dispositions, unless it is to be
presumed that the testator would not have made such other
dispositions if the first invalid disposition had not been made.
Q. What properties are covered by the will?

A. Only those properties of the testator at the time of the making of the will.
(Art. 793)
Q. How do you distribute the property acquired after the making of the will?
A. Based on the rules of intestacy, unless there is a subsequent will which
takes care of the disposition of such property.
Q. Art. 781 provides: The inheritance of a person includes not only the
property and transmissible rights and obligations existing at the time of his
death, but also those which have accrued thereto since the opening of the
succession. How do you reconcile this with Art. 793 which says, Property
acquired after the making of a will shall only pass thereby, as if the testator
had possessed it at the time of making the will, should it expressly appear by
the will that such was his intention?
A. No. Art. 781 is limited to those property accruing to those already
disposed of. This pertains to fruits and accessions of the property disposed
of.
So: Art. 781. If X gives land to A and mangoes grow on the land, there
is no need for a subsequent will to grant the mangoes to A.
Art. 793. But if X gives 1/4 of his properties to A, then after the
execution of the will, he buys more property, those properties which are
acquired subsequent to the making of the will do not pass to A. It requires a
subsequent will to give A 1/4 of the subsequently acquired property.
Q. So at what point in time do you determine what properties are included in

the will?
A. As a general rule, at the time of the making of the will.
Q. What are the exceptions?

A. They are:
1. When contrary intent appears on the will. (Art. 793)
2. When property is not owned by the testator at the time of the making
of the will, but is owned at the time of death. (Art. 930)
3. Legacy of credit or remission of debt. (Art. 935)
Q. What is covered by the devise or legacy of a testator?

A. It shall cover all the interest which the testator could device or bequeath
in the property disposed of, unless it clearly appears from the will that he
intended to convey a less interest. (n)
Determining the Validity of the Will
All my friends have gone to battle. I would be ashamed to be left behind! Merry to King Theoden
Q. What do you look at to determine the validity of the will?

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A. We look at:
1. Formalities-----------------------------------------------------------
(extrinsic validity)
2. Testamentary capacity of the testator
3. Legality of the provisions of the will (intrinsic validity)
Q. What is the reckoning point in time for determining the said requisites for
the validity of the will, and what is the governing law for the requisites?
A. Study the following chart:
Time of Governing
reckoning law
Formalitie Making of Filipinos CHOICES
s the will 1. National Law
2. Law of his
residence
3. Law of the place
where the will
was executed
Lex Loci
Celebritionis
Alien IF ALIEN IS ABROAD IF ALIEN IS IN RP
Assumption: Will is 1. National law
presented for 2. Philippine
probate in RP. Law Lex
1. National Law Loci
2. Law of his Celebritionis
Domicile
3. Law of the place
where the will
was executed
Lex Loci
Celebritionis
4. Philippine Law
Law of the forum
Testamen Making of National
tary the will Law for
Capacity both
Filipinos
and aliens
Intrinsic Time of National
validity death Law for
both
Filipinos
and aliens
Llorente v. CA
345 SCRA 592 (2000)
Lorenzo Llorente married Paula, departed for the US,

was naturalized as a US citizen. He came back to RP
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and found Paula with the child of another man.
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Lorenzo divorced her and married Alicia, had 3
children. He executed his will in favor of them and
had it admitted to probate before he died. Paula
later filed for letters of administration, claiming that
she was still Lorenzos surviving spouse and that the
properties disposed of in the will encroached on her
legitime. The RTC and CA ruled, using the renvoi
doctrine, saying that American law follows the
domiciliary theory, and hence RP law applied
because Lorenzo was a domicile of RP.
ISSUE: Whether or not foreign law governs the

incidents of Lorenzos succession.
HELD: Lorenzo became an American citizen long

before his divorce from Paula, his marriage to Alicia,
the execution of his will and his death. Therefore,
the issues arising from these incidents are governed
by foreign law. But foreign law has to be alleged and
proved.
There is no such thing as one American Law. Each

State of the US has its own law applicable to its
citizens. And there is no showing that the application
of the renvoi doctrine is called for or required by New
York law (the state where Lorenzo was naturalized).
The decree of divorce between Lorenzo and Paula is

valid. Thus, whether the will is intrinsically valid and
who shall inherit from Lorenzo are issues best proved
by foreign law which must be pleaded and proved.
Q. What does this case talk about?

A. The rules as to intrinsic validity of foreign wills.
Q. When we apply the national law of a state, does it mean we apply the
internal law immediately?
A. No. The national law of a state may have a conflict of law provision that
leads to the application of the internal law of a foreign state. So only when
that conflict of law provision provides for the application of internal law do
we apply the internal law of the state.
Perez v. Tolete
232 SCRA 722 (1994)
Jose Cunanan and Evelyn Cunanan are US citizens

and they executed wills with reciprocal provisions,
both of which stated that if the other spouse would
survive him, then all the property would be
bequeathed to the other, and in the event that the
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spouse would survive the other, then the properties
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should instead transfer to his or her descendants.
Both died. The wills were admitted to probate in New
York. Salud Perez, the mother of Evelyn, sought to
have the will reprobated in RP. Judge denied probate,
since the will did not meet the formal requirements
of RP law, and there was failure to prove New York
law, so there was a presumption that the law is the
same as RP law. Salud filed for motion to allow her to
present further evidence on foreign law, denied.
HELD: The wills of the Cunanan spouses will only be

effective in RP is made in compliance of the place
where he resides, or in his country, or in RP law.
Thus, proof that both wills conform with the
formalities prescribed by New York law or RP law is
imperative. The evidence necessary for reprobate of
wills which have been admitted to probate outside RP
are as follows:
i. due execution of the will in accordance with

foreign law
ii. testator has his domicile in the foreign law and
not in RP
iii. will has been admitted to probate in such country
iv. fact that the foreign tribunal is a probate court
v. laws of a foreign country on procedure and
allowance of wills
Salud submitted evidence except for the first and

fifth. Therefore, she should be allowed to present
additional evidence.
Q. What does this case talk about?

A. The extrinsic validity of foreign wills.
Perez v. Tolete
232 SCRA 722 (1994)
The judge also denied the motion to present

evidence on the ground that to allow the probate of
two wills in a single proceeding would be a
departure from the typical and established mode of
probate where one petition takes care of one will.
He also claims that the Rules on allowance of wills is
couched in singular terms, so this should mean that
there should be separate probate proceedings.
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HELD: Too literal and simplistic an approach. What
the law expressly prohibits is the making of joint
wills. Here, they executed separate wills. Since the
two wills contain essentially the same provisions and
pertain to property which are conjugal in nature,
practical considerations dictate their joint probate.
The Court will always strive to settle the entire
controversy in a single proceeding
Q. Why would a will admitted to probate abroad be reprobated in RP?

A. Because the testator has properties in RP.
Q. Joint wills are not allowed. Is joint probate allowed?

A. Yes.
Testamentary Capacity and Intent
I am Isildur's heir! Fight for me, and I will hold your oaths fulfilled! Aragorn to The Dead
Q. Who may make a will?

A. Persons who are not expressly prohibited by law may make a will. Persons
of either sex under eighteen years of age cannot make a will.
Q. Does the testator have to be sane to execute a will?

A. As far as making a will is concerned, soundness of mind and sanity are not
the same. One only has to be of sound mind to execute a will.
Q. What does testamentary capacity require?

A. It requires the testator to know:
1. The nature of the estate extent and character of the property, never
mind the minor details
2. Object of his bounty those who have a natural expectation to receive
things from him
3. Character of the testamentary act
Q. Does disease affect testamentary capacity?

A. No. To be of sound mind, it is not necessary that the testator be in full
possession of all his reasoning faculties, or that his mind be wholly unbroken,
unimpaired, or unshattered by disease, injury or other cause.
Q. Does drunkenness affect testamentary capacity?

A. If the testator is dead drunk when he makes the will, then it is invalid.
Q. Does commission of a crime affect testamentary capacity?

A. No. Even in crimes punishable by civil interdiction (those punishable by
reclusion perpetua to death), the convicted criminal loses only the power to
dispose of property inter vivos. He retains the power to execute a will since
this involves a mortis causa transfer of property.
Q. May a married woman make a will?

A. Yes. A married woman may make a will without the consent of her
husband, and without the authority of the court. A married woman may also
dispose by will of all her separate property as well as her share of the
conjugal partnership or absolute community property.
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CRC: Does this-----------------------------------------------------------
mean a married man may not make a will without the consent
of his wife, and that he may not dispose by will of his separate property or
his share in the conjugal assets? He may. This is an antiquated provision. It
should be reworded to say married individuals may make a will and
dispose of their separate properties.
Q. What is the presumption of the law as to sanity?

A. The law presumes that every person is of sound mind, in the absence of
proof to the contrary. The burden of proof that the testator was not of sound
mind at the time of making his dispositions is on the person who opposes the
probate of the will.
Q. Are there any exception?

A. There are:
1. If the testator, one month, or less, before making his will was publicly
known to be insane, the person who maintains the validity of the will
must prove that the testator made it during a lucid interval.
Note: This does not mean a court or public declaration of
insanity. It pertains to tsismis.
2. When the testator executed the will after being placed under
guardianship or ordered committed for insanity, and before the order
has been lifted.
Q. So if the court has previously declared the testator to be insane, does this
mean that he no longer has testamentary capacity to execute a will?
A. No. It simply means that the burden of proving testamentary capacity
shifts to the party who wants to prove that the person is sane.
Sanson v. CA
158 SCRA 247 (1988)
Herminia Montinola died when she was 70. Atty.

Hernandez filed for the probate of her will. Sisters of
Herminia claims that Herminia had no testamentary
capacity when she executed the will because they
were excluded from the will without reason, despite
their being the only surviving relatives. Furthermore,

she was insane because she failed to dispose all of
her property.
HELD: It is within the right of the testatrix not to

include her only sister who is not a compulsory heir,
in her will. Undue influence is not present just
because blood relatives, other than compulsory heirs
have been omitted, for it is the testators right to
disregard non-compulsory heirs. The fact that some
heirs are more favored than others is proof of neither
fraud or undue influence. Diversity of apportionment
is the usual reason for making a will. Otherwise, the
decedent might as well die intestate.
The fact that the testatrix disposed of only some of

her real properties does not invalidate the will, nor is
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it an indication that the testatrix was of unsound
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mind. The portion of the estate undisposed of shall
pass on to the heirs of the deceased in intestate
succession.
Q. What is the effect of supervening incapacity?

A. Supervening incapacity does not invalidate an effective will, nor is the will
of an incapable validated by the supervening of capacity.
Formal Requirements Common to Notarial and Holographic Wills
Ill take care of you! Merry to Pippin in a homoerotic moment.
Q. What are the formal requirements common to notarial and holographic

wills?
A. Every will must be 1) in writing, 2) executed in a language or dialect
known to the testator, 3) signed.
1. In writing
Q. On what material may the will be written?

A. On anything that is permanent, e.g. paper, wood, metal, leather. It
requires a certain medium. But it may not be written on sand or water.
Q. What is the test?

A. It must be capable of being preserved with permanence.
Q. Can it be a video recording of the testator reciting his disposition, and

recorded on DVD?
A. No. The law currently does not allow this. It is common for signing
ceremonies to be recorded, where the testator, the witnesses and the notary
public sign the will and this is recorded on video. But this is not required.
CRC: The applicability of the E-Commerce Law on the provisions of the

execution of a will is still subject to debate. It is definitely not applicable to
holographic wills because such wills require that the entire act be in the hand
of
the testator. So it may apply to notarial wills. There are two schools of
thought to this. The liberalists say that it is allowed, especially since an
electronic document may be digitally signed and electronically notarized.
But purists disagree saying there is no guaranty that electronic data is not
tamperable.
2. In a language or dialect known to the testator
Q. Is there a difference between language and dialect?

A. Not that it matters, since the Civil Code allows both, but CRC says Filipino
is a language, Tagalog is a dialect.
Q. In what language may it be written?

A. In any language as long as it is known to the testator.
Q. Is there any presumption as to compliance with this requirement?

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A. Yes. Abangan v. Abangan It may sometimes be presumed that the
testator knew the -----------------------------------------------------------
language in which the will was written. But in order for the
presumption to apply, the following must be proven:
1. The will must be in a language or dialect generally spoken in the place
of execution
2. The testator must be a native or resident of said locality
Q. How does the language used in the will affect animus testandi?
A. If it is in a language customarily known to the testator, animus testandi is
presumed. But if not, animus testandi has to be proven, and content also
has to be proven.
Q. Do all parts of the will have written in a language known to the testator?
How about the witnesses and the notary public?
Parts of the Will Testator Witnesses Notary Public

1. Will proper YES
no NO the witness NO
exception does not have to
understand the
will
2. Attestation NO no need to NO but it has to NO
Clause interpret be interpreted to
them
3. Notarial NO NO NO in all
Portion/ actuality, the
Acknowledgment notary will not
sign it if he does
not understand.
But it is not a
statutory
requirement.
CRC: The requirement that the will be interpreted does not apply to the
testator. It applies only to the witnesses.
Q. If the testator is illiterate, is there any special requirement in making the

will/
A. None. He can still make a will. Note that the presumption is in favor of
literacy. CRCs tip: if you are illiterate, dont make a will because you might
be duped into putting in provisions that you dont understand. Then again, if
you are illiterate, you wont be able to read this.
Q. Does the will have to state that it is written in a language known to the
testator?
A. No. It does not have to appear in the will or the attestation.
Q. Is it required that proof be presented that the language of the will is

known to the testator?
A. No need because this is presumed.
Q. Does this apply in case of holographic wills?

A. Yes.
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3. Subscribed at the end thereof
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Q. What does it mean to subscribe?
A. It pertains to the mechanical act of writing ones signature.
Q. What does it mean to subscribe at the end of the will?

A. There are two possible ends. One is the physical end of the will, which is
at the end of the very last page, after the attestation and the notarial
acknowledgment. The other is the logical end, which is at the end of all the
dispositions. The testator is required to sign at the logical end, both as to
notarial and holographic wills.
Q. What signature is needed?

A. Only the customary signature. No need to sign the full name. If you do
not sign with your customary signature, evidence is needed to show that it
was intended by you for what you wrote to be your signature.
Q. Are you allowed to sign with a thumbmark?

A. Yes. This is common when illiterate people write their signatures. Note
that it may also be an indication of force or violence.
Q. Do you have to be illiterate to sign with a thumbark?

A. No.
Q. Do you have to sign by yourself?

A. In notarial wills, another person may sign for you. In holographic wills, the
testator should sign himself.
Q. Is a special power of attorney needed when another person signs for you?
A. No. There is nothing wrong with getting an SPA. But all that is required is
the presence of the testator and the witnesses, and that he sign in the
express direction of the testator.
Garcia v. Lacuesta: The fact that another person signs for the testator should
be stated in the attestation clause; otherwise, it is fatal to the validity of the
will.
Q. How does the third person sign?

A. He signs the name of the testator.
CRC: Persons who sign in behalf of the testator cant be one of the witnesses,
because the third person who signs for the testator is considered the
testator.
Requirements for Notarial Wills
Trivia: Orlando Bloom auditioned for the part of Faramir.
Note: Happily, CRC does not require verbatim memorization. But here it is
anyway.
ART. 805. EVERY

WILL, OTHER THAN A HOLOGRAPHIC WILL, MUST BE SUBSCRIBED AT
THE END THEREOF BY THE TESTATOR HIMSELF OR BY THE TESTATOR'S NAME WRITTEN BY
SUCCESSION REVIEWER
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SOME OTHER PERSON IN HIS PRESENCE, AND BY HIS EXPRESS DIRECTION, AND ATTESTED
AND SUBSCRIBED-----------------------------------------------------------
BY THREE OR MORE CREDIBLE WITNESSES IN THE PRESENCE OF THE
TESTATOR AND OF ONE ANOTHER.
THE TESTATOR OR THE PERSON REQUESTED BY HIM TO WRITE HIS NAME AND THE
INSTRUMENTAL WITNESSES OF THE WILL, SHALL ALSO SIGN, AS AFORESAID, EACH AND
EVERY PAGE THEREOF, EXCEPT THE LAST, ON THE LEFT MARGIN, AND ALL THE PAGES SHALL
BE NUMBERED CORRELATIVELY IN LETTERS PLACED ON THE UPPER PART OF EACH PAGE.
THE ATTESTATION SHALL STATE THE NUMBER OF PAGES USED UPON WHICH THE WILL IS
WRITTEN, AND THE FACT THAT THE TESTATOR SIGNED THE WILL AND EVERY PAGE THEREOF,
OR CAUSED SOME OTHER PERSON TO WRITE HIS NAME, UNDER HIS EXPRESS DIRECTION, IN
THE PRESENCE OF THE INSTRUMENTAL WITNESSES, AND THAT THE LATTER WITNESSED AND
SIGNED THE WILL AND ALL THE PAGES THEREOF IN THE PRESENCE OF THE TESTATOR AND OF
ONE ANOTHER.
IFTHE ATTESTATION CLAUSE IS IN A LANGUAGE NOT KNOWN TO THE WITNESSES, IT SHALL

BE INTERPRETED TO THEM.
Q. What are the requirements that apply only to notarial wills?

A. They are:
1. attested and subscribed by three or more credible witnesses
2. signed by the testator and witnesses on every page
3. correlatively numbered
4. attestation clause
5. acknowledgment by the notary public
1. attested and subscribed by three or more credible witnesses
Q. Is there a difference between attesting and subscribing?

A. Yes. Attestation is an act of the senses; to attest a will is to know that it
was published as such, and to certify the facts required to constitute an
actual and legal publication. Subscription is the act of the hand; to subscribe
a paper published as a will is only to write on the same paper the name for
the sole purpose of identification. (Caneda v. CA)
Q. Who are excluded from becoming a witness?

A. The testator, notary public, and the person signing in behalf of the
testator.
Q. When is the reckoning point for the credibility of the witness?

A. At the time of attestation, for the validity of the will.
Q. Does the witness also have to sign with his customary signature?
A. Yes. I not, just prove that he actually signed it, in accordance with the
formalities. Note that this is different with the rule for the testator. If the
testator does not sign with his customary signature, you have to prove
animus testandi, in addition to the requirement of proving that he actually
signed it.
Q. Can the witness sign with a thumbmark?

A. Yes. But he should explain why he signed with the thumbmark. There is
no presumption that he is illiterate. But if the reason why he signed that way
is because he is illiterate, the will becomes invalid, because the witness is
incompetent.
SUCCESSION REVIEWER
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Q. In whose presence is the signing done?
A. In the presence of the testator and of one another. Physical presence is
required.
Q. If the mind of the witness is wandering, what is the effect on the will?
A. It is not allowed. Therefore, the will is invalid. However, it is very difficult
to prove that the mind of the witness is wandering.
Q. What is required on the witness?

A. He is required to know what is going on, and to see what is going on
(knowledge + sight).
Q. Is actual seeing by the testator or witness of the act of signing needed?

A. No. There are certain tests to meet to ascertain if the participation of the
witness is sufficient.
Q. What are the tests?

A. They are two:
1. Position test
2. Test of Available Senses
Q. What is the position test?

A. Whether they might have seen each other sign had they chosen to do so,
considering the position of the parties with relation to each other at the
moment of signing, provided that is no physical obstruction to prevent him
from doing so, and you can see without difficult, or without having to change
their relative positions or existing conditions. ( Nera v. Rimando)
Q. To whom does this test apply?

A. To both the testator and the witness?
Q. What is the test of available senses?

A. This is for people who have an impediment, such as sign. So if the
testator is blind, he should use his other senses to compensate for the
physical deficiency, such as hearing or touch.
Q. To whom does this test apply?

A. To the testator only. It does not apply to witnesses because there are
special qualifications for him.
Q. Does the law require an order for signing? Is it required that the testator
sign first before the witnesses?
A. No order is prescribed as long as the signing is done in one transaction,
and there is no break or intermediary period. If there is a break, it is not
valid.
Q. What does one transaction mean?

A. It refers to the signing by the testator and the witnesses. It does not cover
the acknowledgment before the notary public.
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Q. What is the rule for deaf or deaf-mute testators?
A. If the testator-----------------------------------------------------------
be deaf, or a deaf-mute, he must personally read the will, if
able to do so; otherwise, he shall designate two persons to read it and
communicate to him, in some practicable manner, the contents thereof.
Q. What is the rule for blind testators?

A. If the testator is blind, the will shall be read to him twice; once, by one of
the subscribing witnesses, and again, by the notary public before whom the
will is acknowledged.
2. signed by the testator and witnesses on every page
Q. What is the purpose of this requirement?

A. So there can be no substitution.
Q. Is there any page where the testators signature is not needed?

A. If the page contains only the attestation clause or the acknowledgment,
there is no need to sign on the margin. But the testator has to sign at the
end; signature at the left margin is not sufficient. Failure to sign is fatal. The
last page need not be signed because the testator has already signed at the
end, so there is no need to sign at the left margin.
Q. If the will is signed on the right margin, is it invalidated?

A. No. Signing at the left margin is directory.
Q. Witness signs at the left margin but not at the bottom. Fatal?
A. It is not required to be signed at the end, as long as their signature is on
the page where the attestation clause is located.
3. correlatively numbered
Q. What is the purpose of this requirement?

A. Not so much for substitution, but more for the sense of order or
chronology of the will.
Q. What is the ideal manner of number?

A. In words, one, two, three. If the will is not numbered in this manner,
it is still permissible, as long as you can show the correlation.
Q. Upper portion, mandatory?

A. No.
Q. When is there no need for pagination?

A. When the will has only two pages, there is no need for pagination, since
correlation is evident; 3 or more pages, requires pagination.
4. attestation clause
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Q. What is the importance of the attestation clause?
A. It states what -----------------------------------------------------------
happened in the will and the compliance with the
requirements of execution.
Q. What does the attestation clause state?

A. It should state:
1. The number of pages
2. That the will is signed by the testator requires presence of the
witnesses
3. That it was signed by the witnesses requires the presence of the
testator and the witnesses
Q. What is the rule of substantial compliance as to the attestation clause?

A. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation
or in the language used therein shall not render the will invalid if it is proved
that the will was in fact executed and attested in substantial compliance with
all the requirements of article 805.
Q. If there is failure to state the number of pages in the attestation clause, is

it fatal to the will?
A. Not if it is contained elsewhere in the will. For example, if it is statement
in the acknowledgment. The number of pages cannot be proved with
evidence aliunde. Only evidence found within the will is allowed. (Taboada
case)
Q. Does this also apply to the required statements that the will is signed by
the testator, or that the will is signed by the witnesses?
A. Yes.
Caneda v. CA
222 SCRA 781 (1993)
Mateo Cabellero filed a petition for a probate of his

own will, but he died before it was admitted to
probate. The heirs named in the will were appointed
administrators, but his nephews and nieces opposed
the probate, claiming that the will was invalid, since
the attestation clause was defective since it did not
state that the witnesses signed the will and each and
every page thereof, in the presence of one another.
The RTC ruled that the attestation clause
substantially complies with Art. 805 of the Civil Code.
HELD: A careful reading of the attestation clause

reveals that while it does not expressly state the
circumstances that the witnesses subscribed their
signatures in the presence of the testator and of one
another. The phrase and he signed the same
obviously refers to the testator and not the
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instrumental witnesses. The defect cannot be
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characterized as merely involving the form of the will
or the language which would warrant the application
of the substantial compliance rule. While the
attestation clause is signed, it cannot be conclusively
inferred that the witnesses affixed their respective
signature in the presence of the required persons.
The defects cannot be cured by the text or the will or
a consideration of the matters apparent which would
provide the data not expressed. The defects must be
remedied by intrinsic evidence supplied by the will
itself, without resorting to evidence aliunde, whether
oral or written.
CRC: The will should pass actually. But the SC restricted the pronoun he to
apply only to the testator, but not to the witnesses.
Q. Do you need a special place for the attestation clause?

A. No. The statements can be embedded in the parts of the will.
5. acknowledgment by the notary public
Q. What is the purpose of the acknowledgment?

A. Acknowledges the signature of everybody; this dispenses with the proof of
authenticating the signatures. But he does not have to ascertain the
testamentary capacity of the testator.
Q. When must he notarize?

A. The law does not impose any requirement when he should authenticate
the signatures.
Q. What are the other functions of the notary?

A. If the testator is blind, the notary must red the will aloud to the testator,
and ask if that is the will that he signed.
Q. Does everyone have to have the same notary?

A. Not really. Its not a requirement. Each party can go to a separate notary.
Q. If the will is executed in Makati, do you have to go to a notary belonging

to Makati?
A. The Civil Code does not require this, but the Notarial Law says that you
have to notarize the document in the place where it was signed; this might
not be really considered a fatal defect.
Witnesses to a Will
Trivia: The filming of LOTR began with Stuart Townsend as Aragorn!
Q. What are the qualifications to be a witness?

A. He must be:
1. of sound mind
2. at least eighteen years of age or more,
3. not blind, deaf or dumb,
4. able to read and write,
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5. domiciled in the Philippines;
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6. has not been convicted of falsification of a document, perjury or false
testimony.
Q. Is there a distinction between the soundness of mind and that of the

witness?
A. Yes. Whereas the testator has to know the object of his bounty, the
character of the testamentary act and the nature of the estate, the witness
has to know:
1. he must know that what is being executed is a will and that the parties
are there to sign
2. he must know the testamentary capacity of the testator
Q. What are the disqualifications for a testator?

A. None. Almost anyone can make a will, subject to the requirement of
testamentary capacity.
Q. What are the disqualifications for a witness?

A. Several. The following may not be witnesses:
1. Illiterate cannot read AND write
2. Blind
3. Deaf (OR)
4. Dumb
5. Non-domiciliary of the Philippines
Q. Why are the blind disqualified?

A. Because sight is important, so that the witness can see the signing.
Q. Why are the dumb disqualified? (Note, dumb = mute)

A. Because the witnesses may be required to testify in the probate of the will,
so it is easier if they can communicate via speech.
Q. Why are the deaf disqualified?

A. CRC: who knows?
Q. Is the domicile requirement applicable to Filipinos and/or aliens when

their wills are executed abroad or in RP?
Executed in RP Executed abroad

Filipinos Yes 1. Law of the place Tolentino
and Paras say Yes, Caguioa
says No, CRC says, take
your pick
2. RP law - Yes
Aliens 1. Follows RP law No
Yes
2. Follows own law -
No
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Q. Why are those convicted of perjury, false testimony, and falsification
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disqualified?
A. Because of their propensity to lie. Thus, those convicted of murder and
rape are allowed, even when facing civil interdiction, because the property to
be disposed of is not theirs.
Q. Does relationship with the testator disqualify one from being a witness?
A. No.
Q. Is a spouse disqualified from being a witness?

A. No. The possible undue influence present in the prohibition against joint
wills is not an issue in witnessing.
Q. Is relationship of one witness with another witness a disqualification?

A. No. Note that competence is not the same with credibility.
Q. What is the rule on the subsequent incompetence of the witness?

A. If the witnesses attesting the execution of a will are competent at the time
of attesting, their becoming subsequently incompetent shall not prevent the
allowance of the will.
Q. What is the effect if the person attesting the will is a devisee or legatee,
or if the person has a spouse, or parent, or child, who is a devisee or legatee
of the testator?
A. Such devise or legacy shall, so far only as concerns such person, or
spouse, or parent, or child of such person, be void, unless there are three
other competent witnesses to such will.
Q. Will that witness still be competent as a witness?

A. Yes. Such person so attesting shall be admitted as a witness as if such
devise or legacy had not been made or given.
Q. What is aside from the devisee/witness, there are three other competent
witnesses?
A. Then the devise or legacy is valid.
Q. What if there are three competent witnesses, and one of them is a

devisee?
A. The will is valid, the devise is void.
CRC: Tolentino and Caguioa say that when the witness is given a portion of
the estate (is an heir) rather than a definite object in the estate (devisee or
legatee) then the portion may still validly transfer. This is simplistic. Art.
1027, par. (4) says that any attesting witness to the execution of a will, or
the spouse, parent or child or any claiming under such witness or spouse,
parent, or child, is incapable of succeeding. The exception to this prohibition
are compulsory heirs, who can get their legitime.
Balane: The disqualification will extend as well to heirs. The intent of the law
is to cover all testamentary institutions.
Q. What is there is a voluntary heir + 3 other attesting witnesses?

A. Art. 1027 does not make a distinction. But it does not affect the validity of
the will. Note the difference of the rules between the devisee/witness and
the voluntary heir/witness.
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Q. Is the creditor-----------------------------------------------------------
of the testator disqualified from being a witness?
A. A mere charge on the estate of the testator for the payment of debts due
at the time of the testator's death does not prevent his creditors from being
competent witnesses to his will.
Requirements of a Holographic Will

Fear. The city is rank with it. Let us ease their pain. Release the prisoners! - Gothmog
Q. What are the requirements of a holographic will?

A. A person may execute a holographic will which must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no
other form, and may be made in or out of the Philippines, and need not be
witnessed.
Q. Does the date/will/signature have to be in any particular order?

A. The signature has to be at the bottom.
Roxas v. De Jesus
134 SCRA 245 (1985)
As a general rule, the date in a holographic will

should include the day, month, and year of its
execution. However, as in the case at bar, there is
no appearance of fraud, bad faith, undue influence
and
pressure and the authenticity of the will is

established, and the only issue is whether or not
Feb/61 is valid compliance. A complete date is
required to provide against such contingencies as
that of two competing wills executed on the same
day, or of a testator becoming insane on the day in
which the will was executed. There is no such
contingency in this case.
Q. So are the following dates permissible?

Format Sample OK?
Month / Year Feb. 2003 Yes
Month / Day Feb. 14 No
Day / Year 14, 2003 No
Event + Year Valentines Day, 2004 Yes
Q. Is total absence of the date fatal?

A. Yes.
Q. Can the holographic will be in the form of a letter?

A. Yes. But it should state unequivocally that it is a will; it should reflect
animus testandi. For example, Dear Even, when I die, give the following
properties of mine to the following persons.
Q. Can it be in the form of a poem?

A. Yes.
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Q. Is the Mi Ultimo Adios of Jose Rizal a will?
A. No. -----------------------------------------------------------
Q. Remember Dying Declarations as an exception to the Hearsay Rule? Can

a dying declaration dispose of property?
A. No. Not valid unless written, dated and signed by the testator in his own
hand.
Q. What is required in case of any insertion, cancellation, erasure or

alteration in a holographic will?
A. In such case, the testator must authenticate the same by his full
signature.
Q. Do the erasures need to be authenticated when it is made

contemporaneous to the making of the will? Is this the same rule when the
erasure is made after the making of the will?
A. When the erasure is made contemporaneous to the will, there is no need
to authenticate it, if done at the same time as the will was made. If erasure
is done after the making of the will, the erasure has to be authenticated.
Q. What is the rule when another person makes erasures on the will?
A. If made without the consent of the testator, the will is not invalidated,
because the validity of the will cant be left to the hands of a third person.
But the correction is not valid, since the holographic will must be entirely in
the hand of the testator. If the erasure is made by a third person with the
consent of the testator, the erasure of the third party will not be allowed, but
the will is still valid.
Kalaw v. Relova
132 SCRA 237 (1984)
The holographic will has only one substantial

provision which was altered by substituting the
original heir with another. This alteration did not
carry the requisite of the authenticating signature.
HELD: The entire will is voided or revoked since there

is nothing that remains in the will which could remain
valid. To state that the will as first written should be
given efficacy is to disregard the seeming change of
mind of the testatrix. But that change of mind
cannot be given effect because she failed to
authenticate it in the manner required by law by
affixing her full signature.
Q. What is the requirement as to the subsequent dispositions in a

holographic will?
A. The dispositions of the testator written below his signature must be dated
and signed by him in order to make them valid as testamentary dispositions.
When a number of dispositions appearing in a holographic will are signed
without being dated, and the last disposition has a signature and a date,
such date validates the dispositions preceding it.
Q. Examples please.
A. Study the following
SUCCESSION REVIEWER
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WILL -----------------------------------------------------------
# 1 subsequent disposition signed only
# 2 subsequent disposition signed only
# 3 subsequent disposition signed AND dated validates all the preceding
dispositions
WILL
# 1 subsequent disposition dated only
# 2 subsequent disposition dated only
# 3 subsequent disposition signed AND dated preceding dispositions are
not validated, only #3 is valid
WILL
# 1 subsequent disposition not dated or signed
# 2 subsequent disposition not dated or signed
# 3 subsequent disposition dated AND signed all preceding dispositions
are void; only #3 is valid
Q. What is the requirement of the authenticating witness in the probate of a

holographic will?
A. It shall be necessary that at least one witness who knows the handwriting
and signature of the testator explicitly declare that the will and the signature
are in the handwriting of the testator. If the will is contested, at least three of
such
witnesses shall be required. In the absence of any competent witness

referred to in the preceding paragraph, and if the court deem it necessary,
expert testimony may be resorted to.
CRC: It is not the number of witnesses but the credibility of the witnesses
that is important.
Rivera v. IAC
182 SCRA 322 (1990)
Venancio Rivera died. Jose Rivera claims to be the

son and claims that Venancio died intestate. Jose
was declared not a son. Adelaido, the true son,
presented the will which was holographic. Jose
Rivera contested the will because Adelaido did not
present three witnesses as required under Art. 811.
HELD: Jose Rivera is not the son of the deceased.

Hence, being a mere stranger, he has no personality
to contest the wills and his opposition did not have
the legal effect of requiring the three witnesses. The
testimony of Zenaida and Venancio Jr. who
authenticated the wills as having been written and
signed by their father was sufficient.
Joint Wills
Fight! Fight to the last man! Fight for your lives! Gandalf, in the Siege of Minas Tirith
SUCCESSION REVIEWER
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Q. What is the rule as to joint wills?
A. Two or more-----------------------------------------------------------
persons cannot make a will jointly, or in the same instrument,
either for their reciprocal benefit or for the benefit of a third person.
Q. Two Filipinos execute a joint will abroad, in a country where joint wills are
allowed. Valid here?
A. Joint wills executed by Filipinos in a foreign country shall not be valid in
the Philippines, even though authorized by the laws of the country where
they may have been executed.
Codicil
Not quite. There's room for a little more. Frodo to Sam, handing him the book
CRC: A codicil is sometimes called a small will. But this is a misnomer. A

codicil may even be larger than the original will. It is ALSO A WILL. So it
must be executed with the formalities of a will. A codicil may either effect a
partial amendment or a total amendment.
1. Partial amendment the codicil is an annex or a part of the original

will. The original + the codicil is treated as one. It is the case of two
wills working as one. Think of it as the amended contract, annexed to
the original contract, giving rise to a restatement of the contract.
2. Total amendment the codicil amends everything. It is a revocation of

the original will even if the revocation is not express. The codicil is not
annexed because it becomes subsequent to the original will
Q. In what form (notarial or holographic) must the codicil be? Does it depend
on the original will?
A. No. Study the following chart:
Original Will Codicil Valid?

Notarial Notarial YES
Holographic Holographic YES
Notarial Holographic YES
Holographic Notarial YES
Q. Why is it that when the original will is holographic, a codicil in the notarial
form is valid? Isnt it that all insertions, corrections, erasures and alterations
of a holographic will should be written and signed by the testator?
A. The original holographic will speaks of just one will. The notarial codicil is
an entirely separate will. So it should be allowed. It is not an insertion or
alteration at all, but a separate will.
Q. What is the legal effect of a codicil?

A. The execution of a codicil referring to a previous will has the effect of
republishing the will as modified by the codicil.
Allans obiter: If in a will, you wrote Dec. 26, 2003: All to X then you
purchase more land after the execution, X will not get this land. But if you
execute a codicil, which states, I reaffirm the will I made on Dec. 26, 2003,
then the land purchased after the execution of the first will is now included in
the disposition to X.
SUCCESSION REVIEWER
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Incorporation by Reference
-----------------------------------------------------------
You cant mean that! You cant leave! Sam to Frodo
CRC: Here, the paper is not a will in itself. It is in the same concept as having
a document incorporated and made part of the will. So the paper comes
together with the will. But it should already be in existence at the time that
the will is made.
Q. Can it be a will?
A. If so, it would already be the codicil. It will be considered a new will, so
the new will is a codicil.
Q. Is there a means by which to remedy a will which is void as to form?

A. He must republish the will and reproduce the dispositions contained in a
previous one. A mere codicil will not be effective because it is a separate will
in itself, and an incorporation by reference will not be effective, since it is not
a will.
Q. What are the requisites of an incorporation by reference?

A. The following:
1. the document or paper must be in existence at the time of the making

of the will.
2. the will must describe and identify the paper
3. the paper must be identified as the paper referred to in the will.
4. the paper must be signed by the testator and the witnesses on each
and every page, except in case of voluminous books of account or
inventories.
1. the document or paper must be in existence at the time of the making of

the will
CRC: You can prove this using extrinsic evidence, to show compliance with
the requirement.
2. the will must describe and identify the paper
Q. What does the original will need to show?

A. It must identify the incorporated paper and state the number of pages.
Q. What is the effect if the number of pages of the incorporated paper is

absent?
A. Then the incorporation is invalid!
3. the paper must be identified as the paper referred to in the will
CRC: There must be clear evidence that the paper is that referred to in the
will. The Rules of Court will govern as to what constitutes clear evidence.
Extrinsic evidence may be used. Note that it is not requied for the will to be
physically attached to the will.
4. the paper must be signed by the testator and the witnesses on each and
every page, except in case of voluminous books of account or inventories
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Q. This last requirement states that it must be signed by the testator AND
witnesses. Does -----------------------------------------------------------
this mean incorporation is valid only in notarial wills?
Will Incorporated Paper Valid?
Notarial Notarial YES
Notarial Holographic YES but the incorporated paper
must be signed by the testator
and the witnesses
Holographic Holographic YES but the incorporated paper
must be in the handwriting of the
testator and signed by him; no
need for witnesses to sign
Holographic Notarial NO because the will is no longer
entirely written and signed by the
testator
* So incorporation by reference is generally not valid for holographic wills.
Q. If books are incorporated, does it have to be signed?

A. Signing the first and the last page should be enough. It is not clearly
defined by the law if all the pages have to be signed.
Revocation of Wills and Testamentary Dispositions

Do you wish then that our places had been exchanged? Faramir to his father.
A will may be revoked by the testator at any time before his death. Any
waiver or restriction of this right is void.
Q. Is soundness of mind also important in determining animus revocandi?

A. Yes. If the testator is not of sound mind at the time of revocation, the
revocation is not effective.
Note: Revocation can either be total or partial.

Note: When revocation is done by an overt act (e.g. by tearing), it need not
be done to the entire will, as long as animus revocandi is present.
Q. How can revocation be done?

A. By:
1. implication of law
2. testators acts
1. implication of law
Q. What are some examples of when a will is revoked by implication of law?

A. When there is an annulment, legal separation, declaration of the nullity of
a marriage, then the designation of the guilty spouse as heir in the will is
revoked by operation of law.
Q. Is the will totally revoked?

A. As a general rule, no. Only those provisions that affect the guilty spouse
will be revoked. The exception is if the only disposition in the will is that
which is in favor of the guilty spouse. Then the entire will is revoked.
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Q. Do you have some other examples for when a will is revoked by
-----------------------------------------------------------
implication of law?
A. Yes.
1. When the dispositions in favor of the witness is revoked (Art. 823, Art.
1027, p. 4)
2. When the testator disposes of property that he thought was his (Art.
930)
3. When the legacy is lost, transformed, destroyed by the testator (Art.
957)
2. testators act
Q. Does the revocation require a reason?

A. No. Although a requirement for this manner of revocation is that the
revocation should be a conscious act, no reason is required when the testator
revokes. As long as you have your legitime, there is no need to justify the
inequality.
Q. What are the means of revoking a will by a testators act?

A. they are:
1. By a will or codicil
2. By an overt act
1. By a will or codicil
Q. What are the requisites for a valid revocation by a subsequent

instrument?
A. They are:
1. subsequent instrument must comply with the formal requisites of a will
2. testator must possess testamentary capacity
3. subsequent instrument must either contain an express revocatory
clause or be incompatible with prior will
Q. What is the doctrine of dependent relative revocation?

A. The doctrine states that where the act of destruction is connected with the
making of another will so as fairly to raise the inference that the testator
meant the revocation of the old to depend upon the efficacy of the new
disposition intended to be substituted, the revocation will be conditional and
dependent upon the efficacy of the new disposition; and if, for any reason,
the new will intended to be made as a substitute is inoperative, the
revocation fails and the original will remains in full force. (Molo v. Molo)
Q. Testator executed Will 1. Then he executed Will 2 which expressly

revoked Will 1. If Will 2 is void for non-compliance with a formal requisite, is
Will 1 reinstated? Why?
A. Will 1 is reinstated. In Samson v. Naval, the Court used the doctrine of
dependent relative revocation. The Court in Molo v. Molo said, that even in
the supposition that the destruction of the original will by the testator could
be presumed from the failure of the petitioner to produce it in court, such
destruction cannot have the effect of defeating Will 1 because of the fact
that it is founded on the mistaken belief that Will 2 has been validly executed
and would be given due effect. The theory on which this principle is
predicated is that the testator did not intend to the intestate. And this
intention is clearly manifest when he executed two wills on two different
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occasions and instituted his wife as his universal heir. There can therefore be
no mistake as -----------------------------------------------------------
to his intention of dying testate.
Allan: CRC mentioned that the doctrine of dependent relative revocation is

not really necessary. The test should be if the second will can pass probate.
There is a distinction between an in inoperative will, and an invalid will. An
inoperative but valid will cannot pass property, but this is immaterial, since it
will allow revocation to take place. (?)
Q. Will 1 All to X
Will 2 Revoke Will 1
Will 3 Revoke Will 2 is Will 1 revived?
A. No. Will 1 is not revived unless Will 3 expressly revives Will 1.
Q. How do you revive a will which was revoked?

A. Two ways:
1. Republication - execute a codicil to revive Will 1; this is effective only
when the will is revoked, not where the will is void as to formalities
2. Re-execution for wills which are void as to formalities
Q. Will 1 All to X
Will 2 All to Y impliedly revokes Will 1
Will 3 All to Z impliedly revokes Will 2. Effect?
A. Revives Will 1, unless Will 1 and Will 3 are inconsistent.
2. By an overt act
Here, you revoke a previously executed will. Any act coupled with animus
testandi is sufficient. The intention of the person is ascertained, but it is a
judgment call. Note that the presumption is always that the testator is
testate.
Q. The Code says the overt acts are burning, tearing, cancelling, or
obliterating the will. Is this exclusive?
A. No. You can wrap it around stone and throw it to the sea or you can flush
it down the toilet.
Q. Does burning and tearing require destruction to the point that it cant be
read?
A. No. a physical act with intent to revoke is sufficient.
CRC: The destruction or burning or tearing of the will may be done to destroy
a prior will to give effect to a subsequent will. Therefore, the doctrine of
dependent relative revocation may also apply. But if the will is just torn up,
then the doctrine does not apply.
In the case of cancellation, the cancellation is done after the execution
of a will. For the cancellation of a holographic will, the authentication with
the full signature of the testator is required. Only the portion cancelled will
cease to exist. However, if what is cancelled is the date or the signature,
then the holographic will becomes void. The cancellation of specific
provisions is okay.
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Q. Is cancellation allowed in notarial wills?
A. Puno and Reyes -----------------------------------------------------------
say no. To execute a notarial will, you need witnesses and
a notary, so even if you authenticate the cancellation on the notarial will with
your full signature, it does not have the required formalities of the attestation
by the witnesses and the acknowledgment by the notary.
Q. Who performs the overt act of cancellation?

A. By the testator himself, or by some other person in his presence, and by
his express direction. Note that cancellation by a third party can be done to
both notarial and holographic wills. To prove cancellation, you need to show
1) the overt act, and 2) intention to revoke.
Q. What if the overt act is done by an unauthorized person?

A. If burned, torn, cancelled, or obliterated by some other person, without
the express direction of the testator, the will may still be established, and the
estate distributed in accordance therewith, if its contents, and due execution,
and the fact of its unauthorized destruction, cancellation, or obliteration are
established according to the Rules of Court.
Gago v. Mamuyac
49 Phil. 902 (1927)
The loss of unavailability of a will may, under certain

circumstances, give rise to the presumption that it
had been revoked by physical destruction.
Gan v. Yap
104 Phi. 509 (1958)
The execution and the contents of a lost or destroyed

holographic will may not be proved by the bare
testimony of witnesses who have seen or read such
will.
Rodelas v. Aranza
119 SCRA 16 (1982)
If the holographic will has been lost or destroyed and

no other copy is available, the will cannot be
probated because the best and only evidence is the
handwriting of the testator in said will. But a
photostatic copy or Xerox copy of the holographic will
may be allowed because comparison can be made
with the standard writings of the testator.
CRC: There is no need to state the cause in a revocation. But a revocation

which states the reason and the reason is a false cause is void. Revocation
based on false cause can only be proven if it is stated in a subsequent will or
codicil. Otherwise, the revocation will stand.
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Q. What law must be observed in revoking wills?
-----------------------------------------------------------
Revocation done Testator domiciled in RP

Testator not domiciled in
RP
1. Outside RP 1. law of the place 1. law of the place
where the will was where will was made
made 2. law of place of
2. RP law domicile
2. Inside RP RP law RP law
Codal provisions which were not discussed:
Art. 832. A revocation made in a subsequent will shall take effect, even if
the new will should become inoperative by reason of the incapacity of the
heirs, devisees or legatees designated therein, or by their renunciation.
(740a)
Art. 834. The recognition of an illegitimate child does not lose its legal
effect, even though the will wherein it was made should be revoked. (714)
Probate of a will
A great shadow has departed. Gandalf, in bed with Frodo.
CRC: The matters taken up in probate are very limited. They are:
1. identity of the will whether the will was made by the testator
2. formalities
3. due execution
4. testamentary capacity
Outside of this, the probate court has no jurisdiction. Note that before the
will is admitted into probate, it is not legally enforceable. It is just an
expression of the testators desires.
Q. What are the exceptions to the general rule that only those 4 matters can
be taken up by the probate court?
A. They are as follows:
1. ownership of property
2. on its face, the provisions are intrinsically void
1. Ownership of property
General rule: Ownership of property is not passed upon in probate. It is to be

determined in the inclusion/exclusion proceedings.
Exception: It can be passed upon. But the determination of the probate
court does not settle the matter with finality. It is just a provisional
determination of ownership. Anyone can still claim ownership of the
property.
Luy Lim v. CA
323 SCRA 102 (2000)
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Pastor Lim died intestate. His widow Rufina Lim
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petitioned to include the assets of certain
corporations as part of the estate of the deceased.
She claims that Pastor Lim, during his lifetime,
organized and owned by himself the corporations,
and that the incorporators had no participation at all
and were mere dummies. The assets include parcels
of land with TCT registered in the name of the
corporations and under the possession of the same.
Rufina claims that the determination is merely
provisional anyway and is not conclusive.
HELD: If a property covered by TCT is involved, the

presumptive conclusiveness of such title should be
given due weight, and in the absence of strong
compelling evidence to the contrary, the holder
thereof should be considered as the owner of the
property in controversy until his title is nullified. The
records reveal no strong compelling evidence that
the properties were owned by Lim. The real
properties are also in the possession and are
registered in the name of the corporations, which
possess a personality separate and distinct from the
stockholders. Mere ownership by a single
stockholder of all the stock is not sufficient reason for
disregarding the separate corporate personalities.
De Leon v. CA
386 SCRA 216 (2002)
Teresita De Leon is the administratrix of the estate of

Rafael Nicolas. Ramon Nicolas opposed the
proceedings and filed a motion for collation, claiming
that Rafael had given real properties to his children
by gratuitous title and this was not included in the
inventory of the estate. The RTC ordered the
collation. De Leon did not appeal in time, so the CA
ruled that the order directing the inclusion of the
property to the estate is final.
HELD: A probate court can only pass upon the

questions of title provisionally. The question of
ownership and title which results in the inclusion to
the inventory of the property can only be settled in a
separate action. The CA erred in considering the
failure to appeal as having the effect of binding the
parties. Actually, the order is interlocutory and not a
final order. The Order is merely for including the
subject property in the inventory of the estate.
Maloles II v. Phillips
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324 SCRA 172 (2000)
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Arturo de Santos filed a petition for the probate of his
will. The will stated that he had no compulsory heirs
and that all his property shall be devised to De
Santos Foundation. The will was admitted to probate
by Branch 65 of the Makati RTC. After his death,
Phillips filed for the issuance of letters testamentary
with Branch 61 of the Court. Maloles filed a motion
for intervention, claiming that he was a nephew so
he was an heir. He claims that Branch 65 has no
jurisdiction because the probate proceedings did not
terminate
upon the admission of the will to probate. He argues

that the proceedings must continue until the estate
is fully distributed so Branch 61 has jurisdiction.
Branch 65 agreed.
HELD: No merit. The authority of the court in

probate proceedings is limited to ascertaining the
extrinsic validity of the will, whether the testator was
of sound mind, freely executed the will, in
accordance with the formalities prescribed. Thus,
after the allowance of the will, there was nothing else
for Branch 61 to do except to issue a certificate of
allowance of the will. There is no basis for the ruling
of Branch 65 that Branch 61 shall continue to
exercise jurisdiction to the exclusion of all other
courts.
Note: Another exception is when all the heirs agree to the determination of
ownership, then the probate court can proceed. In this case, the
determination is no longer provisional, but it is final.
Reyes v. Reyes
345 SCRA 541 (2000)
Ismael owned land but for failure to pay taxes, the

BIR levied and sold this land to the government.
Ismael died and Oscar, his son redeemed the
property. Ismaels administrator, another son, Cesar,
filed for appointment as administrator of the estate
which included the property subject to levy. Oscar
objected to the inclusion of the property he
redeemed. The probate court ruled that the property
redeemed shall not be included but without prejudice
to the outcome of any action to be brought in the
proper court. The administrator Cesar claims the
exception to the rule that the parties interested are
all heirs and they both have submitted the question
of title to the property, so the court has jurisdiction.
HELD: Correct. The jurisdiction of the probate court

merely relates to matters having to do with the
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probate of the will, the appointment of
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administrators, and the settlement of the estate.
The question of ownership is, as a rule, an
extraneous matter which the probate court cannot
resolve with finality. The probate court may pass
upon the title thereto, but such determination is
provisional and not conclusive, and subject to the
final decision in a separate action to resolve title.
The facts do not call for the application of the
exception. The administrator Cesar presented
evidence to determine what was included in the
inventory. On the other hand, the son Oscar
presented evidence to
oppose the inclusion. Thus, there is nothing on

record to show that both parties submitted the issue
of ownership for its final resolution.
2. On its face, the provisions are intrinsically void
CRC: The instance when this is done is usually in preterition. Preterition

totally annuls the will. But as to other intrinsic matters, the courts will
hesitate to rule upon it. The heirs that can be preterited are the parents,
since they are compulsory heirs in the direct line, and children. The spouse
is a compulsory heir but is not an heir in the direct line. This is wrong. The
spouse is not an heir in the direct line. Anyway, if the testator made
provisions in the will in favor of the heir, there is no preterition.
In the Cayetano case, the testator was a US citizen. The Court made a
determination as to citizenship, and since it was determined that the testator
was American, the Court held that there is no preterition, since there is no
system of legitimes in the US. But it is not correct to say that there is no
legitimate in the US. The determination should be done state by state.
There are some states in the South which observe the system of legitimes.
In Nepumuceno, the estate was being contested by the wife and the
mistress. The will of the testator admitted that the mistress was a mistress.
So some, but not all of the provisions, were annulled. So the courts can look
into the intrinsic provisions of the will.
An order admitting the will into probate is a judgment. Once the order
becomes final, the matters ruled upon cant be taken up again. One
exception, again, is the intrinsic validity of the will.
Dorotheo v. CA
320 SCRA 12 (1999)
Lourdes Dorotheo took care of Aniceta Reyes before

she died. After Reyes died, Dorotheo filed for the
probate of the will of Reyes. The will was admitted to
probate, but the children of Reyes filed a motion to
declare the will intrinsically void. The will was
declared void in 1986 and the estate was to be
divided according to the rules of intestacy. In 1990,
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Dorotheo asked the court to set aside the order
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declaring the will void.
HELD: Dorotheo was privy to the suit calling for the

declaration of the invalidity of the will. Although the
order in 1986 declaring the will to be void does not
bind those who are not parties, the order is res
judicata as to those who were parties to the probate
proceedings. Petitioner Dorotheo cannot again raise
those matters anew for relitigation, otherwise that
would be forum-shopping. The claim that the 1986
order is merely
interlocutory cannot stand because the estate was

ordered to be distributed according to the rules of
intestacy. The fact that the husband of the testator
disposed of the conjugal properties in his will cannot
reverse the final and executory order. The matter of
who owns the property may still be properly
ventilated in the intestate proceedings.
Note that for joint wills, the case of Vda de Perez v. Tolete is interesting.
It is not a joint will. It is a formality issue, determining the property subject
matter of probate proceedings. In De la Cerna v. Potot, spouses A & B
executed a joint will. A died, will was admitted to probate. B died, the
daughter again petitioned for the probate of the will for the property of the
mother. One was admitted, the other was not admitted. But a joint will is
really just one will, so the will should have been admitted to probate. This
reasoning can no longer be applied now. But the doctrine in Vda de Perez
applies. Just one probate for the two wills, because the provisions are
identical.
Q. Who can have the will admitted to probate?

A. Either 1) the testator himself, or 2) by an interested person or the
custodian of the will.
CRC: You file for the probate of your own will. After the will is admitted to
probate, you can still change it and make a new one. Of course, the new one
should be subject to probate also.
The Rules of Court provide for a period wherein which you should
submit the will to court for probate. But this is not a prescription period. If
you have it in your possession, it can always be probated.
In the probate, you should prove:

i. Death
ii. Prove due execution and testamentary capacity
If you know the handwriting or someone knows the handwriting of the

testator, there is no need to get expert testimony. Expert testimony is
usually done for forgery. If a holographic will is contested, there may be a
need to have 3 witnesses who know the handwriting of the testator to testify.
Ajero v. CA
236 SCRA 488 (1994)
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Ajero instituted proceedings for allowance of
decedent Anne Sands holographic will. Sand
opposed the petition claiming that neither the wills
body nor the signature was in the decedents
handwriting, that it contained alterations that were
unsigned and that the will was procured by undue
influence. The RTC admitted the will to probate but
the CA reversed, saying the holographic will failed to
meet the requirements of Art. 813 & 814.
HELD: In holographic wills, what assures authenticity

is the requirement that they be totally written by the
testator. Failure to observe strictly other formalities
will not result in the disallowance of a holographic
will that is unquestionably handwritten by the
testator. A holographic will can be admitted to
probate notwithstanding non-compliance with the
provisions of Art. 814 on erasures. Unless the
unauthenticated alterations were made on the date
or on the testators signature, their presence does
not invalidate the will itself. The lack of
authentication will only result in the disallowance of
such changes.
Codoy v. Calugay
312 SCRA 333 (1999)
Calugay filed a petition for the probate of the

holographic will of Matilde Ramonal. Codoy filed an
opposition to the petition alleging that the will was a
forgery and that it was illegible. Calugay presented
six witnesses to establish the authenticity of the will.
The RTC denied probate but this was reversed by the
CA. Codoy appealed claiming
HELD: Art 811 says that as a requirement for the

probate of a contested will, at least 3 witnesses
should declare that the signature is the genuine
signature. This is mandatory. The possibility of a
false document being adjudged as the will of the
testator cannot be eliminated, which is why if the
holographic will is contested, the law required three
witnesses to declare that the will was in the
handwriting of the deceased.
If the witness of a notarial will is gone, it is okay, because the subject of his
testimony is contained in the notarial attestation. It may be that the
attestation did not happen, and the attestation can still be disproved. But it
would be difficult for the forger of a will to get 3 people to lie and sign as
witnesses.
Q. What are the grounds for the disallowance of the will?

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

A. Yes. They can be summarized to: 1) failure of formalities, 2) vice of
consent, 3) testator did not sign.
Christmas Break
I am going to save you. Eowyn to King Theoden
You already did. King Theoden to Eowyn.
Who Inherits from the Testator?
And where will other men turn when Gondor falls? Dethenor to Gandalf.
CRC: The ISRAI guide of Paras is a good guide because it sets out who are the
heirs and what happens when the designated heir does not inherit.
Q. What is ISRAI?
A. Institution, Substitution, Representation, Accretion, Intestacy.
1. Institution
Q. What does institution cover?

A. It is limited to testate succession, and only as to the free portion.
Q. What is the compulsory heir is instituted to the legitime?

A. This is a surplusage and does not affect the validity of the compulsory
heirs acquisition of the legitime.
2. Substitution
Q. What does substitution cover?

A. This is done when the instituted heir does not inherit. It is also limited to
testate succession, and only to the free portion.
NOTE: This order is not followed in case of preterition, because you go

immediately to intestacy.
3. Representation
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Q. What does representation cover?
A. It covers both -----------------------------------------------------------
testate and intestate succession.
Q. When is there representation in testate succession?

A. There is representation as to the legitime of the heir, in case of
predecease, incapacity, or disinheritance.
Q. Is it possible when the compulsory heir repudiates?

A. Never. In case of repudiation, it goes directly to the next order of heirs.
Q. When is there representation in intestate succession?

A. Only in case of predecease and incapacity.
4. Accretion
Q. What does accretion cover?

A. It covers testate succession, and only as to the free portion.
5. Intestacy.
Q. How is intestacy done in case of predecease or incapacity?

A. It applies only in the failure of the heirs of the first order. It follows the
following order:
1. representation
2. if none, the co-heirs, by their own right or by accretion
3. next order
4. the State
Q. How is intestacy done in case of repudiation?

A. It follows this order:
1. co-heirs by accretion
2. co-heirs in their own right
3. next order
4. state
Note: No representation in case of repudiation
Institution
Shadowfax! Show us the meaning of haste! Gandalf, riding to Minas Tirith.
Institution of the heirs is one of the substantive issues in testamentary

succession.
It assumes that the will has been admitted to probate.
Q. What is institution of heirs?

A. Institution of heir is an act by virtue of which a testator designates in his
will the person or persons who are to succeed him in his property and
transmissible rights and obligations.
Q. Is the institution of heirs in the will mandatory?

A. No. A will shall be valid even though it should not contain an institution, or
such institution should not comprise the entire estate, and even though the
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person instituted 1) repudiates or 2) is incapacitated. In such cases, the
remainder of the -----------------------------------------------------------
estate shall pass to the legal heirs by intestacy.
Q. What are the requirements for valid institution?

A. The requirements are:
1. The will must be admitted to probate
2. The institution should be made personally by the testator except as
to valid class institution
3. Institution can be only for the free portion

4. The heir has to be identified
5. There has to be no preterition, because it will annul the institution of
heirs
Q. What happens if the instituted heir cannot be identified?

A. Then you follow the order of Paras; substitution, representation, accretion,
intestacy.
Q. What is the ideal way of identifying the heir?

A. By his name and surname.
Q. What if there are two or more persons with the same full name?
A. Check middle name, if it was indicated by the testator. Note that the
identification can be based only from what was written on the will, and not
by evidence aliunde.
Q. What if the instituted heir was designated with his incomplete name or
unique nickname?
A. It is valid if the identification can be made. Only intrinsic evidence is
admissible.
Q. What is the rule when there is no name, and the heir was just described?
A. Only intrinsic evidence is admissible to determine who this heir is.
Q. What may be done when there is an error in the name or designation of

the heir?
A. An error in the name, surname, or circumstances of the heir shall not
vitiate the institution when it is possible, in any other manner, to know with
certainty the person instituted. Extrinsic evidence may be used. Note that
sometimes, it may be possible to identify the heir only after the death of the
testator. E.g. when the testator writes, The son of mine who gave me the
most number of grandchildren. The minimum requirement is that the
instituted heir must be conceived.
Q. What is after this process, the heir cant be identified?

A. Then none of them shall be an heir.
Q. What are the basic principles in institution?

A. The basic principles are 1) equality, 2) individuality, 3) simultaneousness
Q. What is the principle of equality?

A. In the absence of designation of shares, the heirs instituted shall inherit in
equal parts. It does not matter if the heirs are siblings or children of one
person, or that some are full blood and some are half-blood.
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Q. Is this the same in intestacy?
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A. No. In intestacy, the ratio of full blood to half blood is 2:1.
Q. What is the principle of individuality?

A. Heirs are instituted by the testator in their individual capacity. Thus, even
if the will says, "I designate as my heirs A and B, and the children of C,"
those collectively designated shall be considered as individually instituted,
unless it clearly appears that the intention of the testator was otherwise.
Note: Here, C does not have to die for his children to inherit.
Q. What is simultaneousness?
A. When the testator calls to the succession a person and his children they
are all deemed to have been instituted simultaneously and not successively.
Note: In institution, the relationship or closeness of the testator with the

instituted heir is not an issue.
Q. Do you have to state why you are instituting certain heirs?

A. No. There is no need to do so, assuming there is no disqualification, like
for paramours. However, if the cause is stated and it is false, then there is a
danger.
Q. What is the rule when the heir is instituted by virtue of a false cause?
A. General rule : the false cause is considered as not written.
Exception : if it appears from the will that the testator would not have made
such institution if he had known the falsity of such cause, the
instituted is voided.
Q. What are the requisites in annulling the institution based on false cause?
A. They are:
1. The false cause is stated in the will
2. The falsity of the cause is proven proven by the person who alleges it
is false; evidence aliunde admissible
3. It is shown that the testator would not instituted the heir had he known
the cause to be false.
e.g. P1M to Mr. Vent for being the most handsome in class. even if
this is not true, institution is valid.
P1M to Mr. Vent for saving my life in the fire. if not true, institution
is voided.
CRC: To be sure, just institute the heir, dont state the cause anymore.
Q. If it was the intention of the testator that the instituted heirs should
become sole heirs to the whole estate, but their aliquot parts together do not
cover the whole inheritance, what will be done?
A. Each part shall be increased proportionally. Example: All to A, B, and C.
A takes 30%, B 30%, C 15%.
Share in the Will Increase

A 30% 10%
B 30% 10%
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C 15% 5%
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75% 25% increase this proportionately (ratio of
2:1)
Q. If each of the instituted heirs has been given an aliquot part of the
inheritance, and the parts together exceed the whole inheritance, each part
shall be reduced proportionally. Illustrate.
A. See the following
Share in the Will Decrease
A 60% 20%
B 60% 20%
C 30% 10%
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150% 50% decrease this proportionately
(ratio of 2:1)
Preterition
No you wont, you thief! Frodo to Sam
Q. What are the elements of preterition?

A. They are:
1. Total omission
2. The heir omitted is a compulsory heir in the direct line
3. Omitted heir must survive the testator, save in representation
1. Total omission
Q. Is the total omission of the compulsory heir limited to the will of the
testator?
A. No. Art. 906 says that the compulsory heir may be left legitime in any
title. This includes property given by donation. When this is done, there is
no preterition, and all that the heir can do is to demand that the legitime
belonging to him be fully satisfied. Even if the name appears in the will but
you are not given anything, there is preterition. (Nuguid)
Q. What is ineffective disinheritance?

A. Disinheritance 1) without a specification of the cause, 2) for a cause not
proved, or 3) not one of those set forth in the Civil Code
Q. What are the differences between preterition and invalid disinheritance?

A. Check the following chart:
Preterition Invalid Disinheritance

Annuls the institution of heirs Annul the institution only as it may
completely prejudice the person disinherited.
intestacy follows
Legacy and Device are respected Same
Q. What is the difference in effects if an heir who is preterited and an heir

who is invalidly disinherited?
A. A hypothetical will best illustrate this.
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Problem: A dies, P100,000 net estate, children are A, B, C. X, a friend of A,
was given a legacy-----------------------------------------------------------
of P25,000.
Preterition: The will of A states, Aside from legacy, everything to A and B.
Under the Will Institution

annulled,
property divided
equally
A P37,500 P25,000
(P75,000/2)
B P37,500 P25,000
C 0 P25,000
X P25,000 P25,000
Ineffective Disinheritance: The will of A states, I disinherit C for marrying a

lawyer. Legacy of P25,000 to X. Everything else to A and B.
Under the Legitime Share from Total

Will free portion
A P37,500 P16,666.67 P12,500 P29,166.6
(P75,000/2) (1/2 of 7
P100K)/3
B P37,500 P16,666.67 P12,000 P29,166.6
7
C 0 P16,666.67 P16,666.6
7
X P25,000
Therefore: the heir who has been invalidly disinherited get less than what the
other heirs get. CRC suggests that instead of preteriting an heir whom you
dislike, just disinherit him in your will. He will get a share less than what the
other heirs get.
Q. What are the two types of preterition?

A. The two types are:
1. Where the compulsory heir is completely omitted in the will.
2. Where the heir is omitted from a deed of extrajudicial settlement,
which has the effect of preterition (Non v. Court of Appeals)
Non v. Court of Appeals

325 SCRA 652 (2000)
Petitioner and respondents are siblings whose

parents left them property. Petitioner asks that the
property be equally divided between them, but
respondent claims absolute ownership over the
property, predicating her a deed of extrajudicial
settlement where petitioner waived his share in favor
of respondent. Petitioner claims that the exclusion of
one other sibling from the extrajudicial settlement
resulted in preterition and should warrant the
annulment of the settlement.
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Held: The exclusion of the sibling from the deed of
-----------------------------------------------------------
extrajudicial settlement has the effect of preterition.
To remedy this, resort to Art. 1104 of the Civil code,
where the preterition is not attended by bad faith
and fraud, the partition shall not be rescinded but the
preterited
heir shall be paid the value of the share pertaining to

her.
2. The heir omitted is a compulsory heir in the direct line
Q. Who are the compulsory heirs?

A. They are:
1. Parents and ascendants
2. Children and descendants (legitimate and illegitimate)
3. Spouse
Parents
Q. Can parents of legitimate decedents be preterited?

A. There is a distinction. Parents do not obtain any legitime when they
survive the testator together with legitimate children. But when parents can
obtain legitime when they survive together with illegitimate children. So
parents are preterited only when they survive with illegitimate descendants
and are completely omitted.
Q. Can parents of illegitimate decedents be preterited?

A. Only when there are no legitimate or illegitimate children. Parents of
illegitimate decedents are excluded by both legitimate and illegitimate
descendants. When they concur, the parents dont get any legitime.
Children
Q. What kind of children can be preterited?

A. Legitimate, illegitimate, adopted children may all be preterited.
Solano v. Court of Appeals

126 SCRA 122 (1983)
Solano executed a will instituting Zonia as his

universal heir to all his personal and real properties
in Camalig, Tabaco and Malinao, all in Albay. Will
was admitted to probate. Brothers Garcia claim that
they are illegitimate children of Solano and they
claim preterition. The RTC found that Zonia and the
brothers are all illegitimate children. This is not
contested. RTC ruled that the entire will is void and
intestacy issues due to the preterition of the Garcias.
Held: SC ruled that the preterition of the Garcias

should annul the institution of Zonia only insofar as
the legitime of the omitted heirs is impaired. The will
is valid subject to that limitation. It is plain that the
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intention of the testator was to favor Zonia with
-----------------------------------------------------------
certain portions of his property which, under the law,
he had the right to dispose of by will, so that the
disposition is upheld as to
the extent that it does not impair the legitime of the

Garcias.
CRC: It seems that this decision is a fluke. Whenever an heir is totally

omitted, the institution of the heirs should be annulled entirely. It should not
be annulled only to the extent of the legitime of the other heirs. The only
way to possibly explain this decision would be that the institution of Zonia
was actually a device and a legacy, since there was a specific description of
the real and personal properties being given to her, and that this is not an
institution. But this is really just a freak decision, and the Court probably just
used as basis, equity and justice. Note that this case shows that preterition
is possible among illegitimate children
Maninang v. Court of Appeals

114 SCRA 478 (1982)
Testator died and left a holographic will leaving all

properties to Maninang. She filed a petition for
probate. Bernardo, the adopted son of the testator,
claims to be the sole heir of the decedent, filed a
motion to dismiss, claiming the will was null and void
since he was preterited. RTC dismissed the petition.
Held: There are cases where the court passes upon

the intrinsic validity of the will even before probate,
and that is because practical considerations
demanded. This is not the case here, since the
probate is insisted on by the petitioners and a
resolution on the extrinsic validity of the Will is
demanded. A crucial issue that demands resolution
is whether the adopted son was preterited or
disinherited. The dismissal by the RTC shows that it
considered the adopted son preterited. But this is
not indubitable.
CRC: This case is not very clear as to whether adopted children may be
preterited.
Allan: This case sucks! Dont blame the digest.
Acain v. IAC
155 SCRA 100 (1987)
Petitioner, a nephew of testator, filed a petition for

the probate of the will of the testator. Respondent,
an adopted daughter and the widow filed a motion to
dismiss on the ground of preterition, since all the
property was given to the petitioner. Petition was
dismissed. Petitioner appeals saying preterition
refers to compulsory heirs in the direct line, and does
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not apply to respondents, an adopted daughter and a
-----------------------------------------------------------
widow, so their omission shall not annul the
institution of heirs.
Held: As for the widow, even if she is a compulsory

heir, there is no preterition even if she is omitted
from the inheritance since she is not in the direct
line. But the adopted daughters case is different.
Under the Child and Youth Welfare Code, adoption
gives to the adopted person the same rights and
duties as if he were a legitimate child of the adopter
and makes the adopted person a legal heir of the
adopter. It cannot be denied that she was totally
omitted and preterited.
CRC: In adoption, the line is created not by blood but by law. Right now, it is
the Family Code which creates this link, since the Child and Youth Welfare
Code has been repealed.
Spouse
Q. Can spouses be preterited?

A. It appears that spouses are not heirs in the direct line (blood relationship)
so they may not be preterited. CRC says that this is unfair.
3. Omitted heir must survive the testator, save in representation
Testator Son Grandson
Q. If the Son predeceases the testator and nothing is given to the son or
grandson, is there preterition?
A. Yes. The grandson would represent the son in inheriting from the testator
so he is entitled to the legitime of the son.
Q. What if there is no grandson?

A. Then there is no preterition.
Q. What if the grandson is illegitimate?

A. Then representation is not possible, so there is no preterition.
Q. In what cases is representation possible?

A. It is possible where the compulsory heir 1) dies before the testator, 2) is
incapacitated to succeed, and 3) disinheritance. There is no representation
when the heir renounces the inheritance.
Q. Does the children of a voluntary (or testamentary) heir represent him?

A. A voluntary heir who predeceases the testator transmit dies before the
testator transmits nothing to his heirs.
SUCCESSION REVIEWER
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-----------------------------------------------------------
Substitution of Heirs
Distinguish modal institution from substitution of heirs. Question XIIIB, 2002 Bar.
Q. When can there be substitution of heirs?

A. Only in case of testamentary succession, and only as to the free portion of
the estate.
Q. What are the causes for substitution?

A. The testator may designate one or more persons to substitute the heir
instituted in case such heir 1) should die before him, 2) repudiates, 3) or
should be incapacitated to accept the inheritance.
Q. Can the testator provide for substitution in other cases?

A. Yes, because the free portion is entirely in the control of the testator.
Q. What if no cause for substitution is stated?

A. A simple substitution, without a statement of the cases to which it refers,
shall comprise the three mentioned.
Q. What is the purpose of substitution?

A. It is really to prevent intestacy.
Q. Can there be substitution for legacies and devices?

A. Yes, as long as these are not given as part of the legitime.
Q. What are the kinds of substitution?

A. They are:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary.
CRC: The major classes are simple and fideicommissary.
1. Simple substitution
CRC: There is a first heir and a second heir. The will provides, A, in default,
substitute B. So A and B succeed directly from the testator. They cannot
succeed at the same time, and both cannot succeed. Only either can
succeed. This is alternative.
Q. After succeeding the testator, A dies. Does B substitute him?

A. No. After succeeding the testator, the title to the property is vested in A.
The heirs of A would now succeed to A.
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2. Fideicommissary substitution
-----------------------------------------------------------
Q. Who are the parties to a fideicommissary substitution?
A. The parties are the first heir, the fiduciary, and the second heir, the
fideicommissarry.
Q. Who succeeds from the testator?

A. Actually, both succeed the testator. So both should have capacity to
succeed the testator upon his death, and both should be alive. The
succession is not simultaneous, but the second heir is certain to inherit.
Q. Describe the mechanics of fideicommissary substitution.

A. Here, the first heir instituted is entrusted with the obligation to preserve
and to transmit to a second heir the whole or part of the inheritance.
Rabadilla v. Court of Appeals

334 SCRA 522 (2000)
Belleza devised land to Rabadilla with the condition

that he (or his heirs, on his death) should deliver 75
piculs of sugar to Maria until she dies. The will also
provides that should there be failure to deliver, Maria
shall immediately seize this lot from my heir and
shall turn it over to my near descendants, and the
latter shall have the obligation to deliver sugar to
Maria. Maria filed a complaint for reconveyance of
the land, saying that Rabadilla, was to be substituted
by the testators heirs since the obligation to deliver
the fruits to the respondent was not complied with.
The CA found that this was a case of modal
institution and ordered Rabadilla to convey the land
to the estate of Belleza. Rabadilla appealed,
claiming that this was a substitution. Since Belleza,
the testator, has no heirs, there is no duty to convey
the land to any person.
Held: CA is correct. Substitution may either be

simple or fideicommissary. There is no simple
substitution because the will does not provide that
should Rabadilla default due to predecease,
incapacity or renunciation, that the testators
descendants would substitute. What the will
provides is that should Rabadilla not fulfill the
conditions, the property shall be turned over to the
testators descendants. Neither is there a
fideicommissary substitution because Rabadilla is
allowed to alienated the property provided the sale is
to near descendants or the sisters of the testator.
Thus, a very important element of a fideicommissary
substitution is lacking: the obligation clearly
imposing upon the first heir the preservation of the
property and its transmission to the second heir.
Another missing element is that the second heir must
not be beyond
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------------------------------------------------------------------------------------------
one degree from the first heir. The manner of
-----------------------------------------------------------
Rabadillas institution is evidently modal, since it
imposes a charge upon the instituted heir without
affecting the efficacy of such institution.
Q. What are the limitations of fideicommissarry substitition?

A. It shall be valid provided:
1. Such substitution does not go beyond one degree from the heir
originally instituted, and
2. The fiduciary or first heir and the second heir are living at the time of
the death of the testator.
Q. What does it mean when the law says that the substitution may not go
beyond one degree from the heir originally instituted?
A. It pertains to blood relationship. So only a parent or a child can be
fideicommissary substitutes.
Ramirez v. Vda de Ramirez

111 SCRA 704 (1982)
In a will, Juan and Roberto, respondents, were

instituted as simple and fideicommissary substitutes
of Wanda. They opposed the substitution. As to the
simple substitution, they claim it is void because
Wanda survived the testator. As to the
fideicommissary substitution, they claim it is void
because Wanda is not related to them, so it must be
conveyed to them immediately.
Held: As to the simple substitution, it is valid even if

the heir designated survives the testator, inasmuch
as simple substitution can take place also by
incapacity to inherit or by renunciation.
As to the fideicommissary substitution, the
substitutes are not related to the supposed fiduciary.
But the validity of the fideicommissary substitution
depends on what is meant by the requirement of the
first heir being one degree from the second heir. The
Supreme court of Spain has adopted the construction
that the second heir must be related to and be one
generation from the first heir. Thus, the
fideicommissary can only be either a child or a
parent of the first heir. These are the only relatives
who are one generation or degree from the fiduciary.
Therefore, there is no absolute duty imposed on
Wanda to transmit the usufruct to the
substitutes/respondents.
Q. Can the fiduciary sell the property? Is he obliged to preserve the

ownership?
A. The fiduciary cannot sell the property. The fiduciary is akin to a mere
usufructuary who holds the property in trust for the fideicommissary heir. If
he sells, he will be in breach of this fiduciary duty.
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Q. But then what will be the effect of the violation? Between the purchaser
-----------------------------------------------------------
and the fideicommissary, who will be favored?
A. The fiduciary has no absolute right to the title. So the sale to the third
person is not effectual even if there is good faith. When the cause of the
substitution takes place, the fideicommissary may now take the property.
Q. When does the obligation to transmit arise?

A. It is left to the will of the testator. If he does not expressly provide for it, it
is understood to be at the death of the fiduciary.
Q. If there are changes in the quality of the property, will the fiduciary be
liable?
A. It depends:
1. Damages arising from a) fortuitous events and b) normal wear and tear
fiduciary not liable
2. Expenses for preservation charged against the fideicommissary
Q. Where can the expenses for preservation be taken?

A. From the increase in value of the property or its earnings.
Q. Can it be charged from the principal?

A. No. Only from the earnings and the appreciation in value. The fiduciary
shall be obliged to deliver the inheritance to the second heir, without other
deductions than those which arise from legitimate expenses, credits and
improvements, save in the case where the testator has provided otherwise.
Q. What if the fideicommissary dies ahead of the fiduciary?

A. The property goes to the heirs of the fideicommissary. Their heirs of the
fiduciary will NEVER inherit.
Q. What if the fiduciary predeceases the testator?

A. Then the fideicommissary substitution will not be effective.
Q. What are the prohibitions as to fideicommissary substitutions?

A. The following shall not take effect:
(1) Fideicommissary substitutions which are not made in an express
manner, either by giving them this name, or imposing upon the fiduciary the
absolute obligation to deliver the property to a second heir;
(2) Provisions which contain a perpetual prohibition to alienate, and even a
temporary one, beyond the limit fixed in article 863;
(3) Those which impose upon the heir the charge of paying to various
persons successively, beyond the limit prescribed in article 863, a certain
income or pension;
(4) Those which leave to a person the whole part of the hereditary
property in order that he may apply or invest the same according to secret
instructions communicated to him by the testator.
Note: Art. 863 one degree
Vda. de Kilayko v. Tengco

207 SCRA 600 (1992)
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-----------------------------------------------------------
Maria Lizares died testate, and Eustaquia was one of
the heirs. After the finality of the probate and
partition, petitioners Kilayko filed a case for
reconveyance of property given to Eustaquia under
the will. They base their claim on a supposed
fideicommissary substitution under the will of Lizares
(the will was written in Spanish).
Held: Res judicata bars the case. Granting that it has

not barred the case, the will does not impose upon
Eustaquia a clear obligation to preserve the estate in
favor of Kilayko, and neither may the will be said to
provide for simple substitution. Where the testator
merely names an heir and provides that if such heir
should die, a second heir also designated shall
succeed, there is no fideicommissary substitution.
The substitution should be construed as a mere
simple substitution. Here, Eustaquia survived the
testator. Hence, there can be no substitution of heirs
for upon the testators death, the properties
unconditionally devolved upon Eustaquia.
Q. Does the nullity of the fideicommissary substitution prejudice the validity

of the institution of the heirs first designated?
A. No; the fideicommissary clause shall simply be considered as not written.
3. Brief or Compendious substitution.
Q. What is brief substitution?

A. In brief substitution, upon the default of one heir, two or more heirs
substitute him.
Q. What is compendious substitution?

A. Upon the default of two or more heirs, one heir substitutes them.
Note: The testator can provide portions in substitution. For example, All to
X. On default of X, 1/4 to A and 3/4 to B.
Q. Will says All to A and B. C is compendious substitute. A predeceases

the testator. Does C get As share immediately?
A. There are two schools of thought:
1. Simple view C takes the share immediately.
- flaw: it is of a brief succession school of thought
2. Caguioa the immediate taking can be done only when there is a
designation of the shares. If not, the probable intention of the testator
is for either of the simultaneously instituted heirs (either A or B) to get
everything.
- flaw: this contravenes the ISRAI theory of Paras, since this

imposes accretion of the shares of A and B. But substitute
comes before accretion.
SUCCESSION REVIEWER
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CRC: Its really your choice between these two schools of thought. Both of
them have their -----------------------------------------------------------
flaws.
4. Reciprocal substitution
Q. What is reciprocal substitution?

A. Here, there is no first or second heir. Both are substitutes of each other.
For example, All to A and B. If either cannot succeed, the share goes to the
other. Reciprocal substitution can apply whether or not there is a
designation of the shares.
Q. I institute A, B, and C as reciprocal substitutes. 50% to A, 25% to B, 25%

to C. B predeceases. How is the substitution done?
A. A and C will take the share of B in a 2:1 ratio.
Q. What is the condition of the substitute taking the share?

A. The substitute shall be subject to the same charges and conditions
imposed upon the instituted heir, unless and testator has expressly provided
the contrary, or the charges or conditions are personally applicable only to
the heir instituted.
Q. For how long can the testator hold the property inalienable?
A. Twenty years. The dispositions of the testator declaring all or part of the
estate inalienable for more than twenty years are void.
The provisions on conditional testamentary dispositions and

testamentary dispositions with a term will be discussed by CRC in
the portion on Oblicon.
Legitime
What does your heart tell you? Aragorn to Gandalf
That Frodo is alive. Gandalf to Aragorn
Q. Is a will needed for the heirs to obtain their legitime?

A. No. The legitime is reserved for the heirs by law. But in testate
succession, a line is drawn by legitimes.
Q. Is there any difference between legitime and intestacy?

A. Yes. In intestacy, all the properties of the decedent is affected, and is
distributed according to the presumed will of the decedent. In the system of
legitimes, only a portion of the properties is affected, and it is distributed
independent of the will of the testator. The intention of the testator is
discarded.
Q. The legitime imposes an obligation on the testator to preserve the

properties. What does this mean?
A. It means that the testator cannot dispose of all his properties gratuitously
and has to preserve a portion for his heirs.
Q. Can the testator sell his property? Does he need the consent of his heirs
to do so?
A. The testator can sell his property, because in sale, the property does not
really leave the testators estate, it is merely converted into cash. The
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legitime speaks of cash value. Cash replaces the assets. So it is in
donations where -----------------------------------------------------------
the obligation to preserve is present.
Q. Is there such a thing as an inofficious sale?

A. No. Inofficiousness means a transfer which impairs the legitime of the
compulsory heirs. A sale can never be inofficious since the property is
exchanged for other property. There are only inofficious donations, when the
donation impairs the legitime.
Q. What is the basis of the legitime?

A. The assets existing at the time of the death of the decedent, plus the
assets donated (which are collated).
Q. At what point do you determine the value of the donations?

A. The value at the time of the donation. The increase and decrease of the
value after the donation is for the account of the donee.
Q. How do you challenge the sale?

A. The sale may be challenged if it is not legitimate, and it is merely
simulated or fictitious.
Q. Does legitime speak of specific property? Is the donated property itself

brought back?
A. Legitime speaks of a mass of property. It does not speak of specific
property. So only the value of the donated property is brought back to the
estate. This is in stark contrast with reserva troncal, where the specific
property is brought back to the estate.
Q. Who are the compulsory heirs?

A. 1) Children and descendants, 2) Parents and ascendants, 3) Widow or
widower.
Q. How can you group compulsory heirs?

A. They can be grouped in two ways:
1. Whether they inherit a definite portion of the estate
2. Whether they can be excluded by others
Q. What is the grouping of the compulsory heirs based on whether they

inherit a definite portion?
A. They are:
1. Fixed these heirs always get a fixed share regardless of who they
concur with. They are:
a. legitimate descendants they always get 1/2 of the estate
b. parents/ascendants they always get 1/2 of the estate, but only
when they inherit
2. Variable these heirs dont get a fixed share

a. spouses
b. illegitimate children
Q. What is the grouping of the heirs based on whether they can be

excluded?
A. They are:
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1. Primary these heirs always inherit, and cannot be excluded
-----------------------------------------------------------
a. legitimate children/descendants
b. illegitimate children
c. surviving spouse
2. Secondary these heirs may be excluded
a. parents and ascendants they are excluded by legitimate
children, but can concur with illegitimate children, except when
the decedent is illegitimate
Q. What is the order of priority in the legitime of the heirs of a legitimate

decedent?
A. It is:
1. Legitimate children/descendants excluding illegitimate descendants,
due to the bar of Art. 992
2. Parents/ascendants
3. Illegitimate children & legitimate and illegitimate descendants
4. Surviving spouse
Q. What is the legitime of the heirs of a LEGITIMATE DECEDENT?

Legitimate Parents Illegitimate Surviving
children children Spouse
1. 1/2 (equal Leg ch Leg ch Leg ch 1/2
Legitimat among 1/2 1/2 Spouse
e children themselves) Parents ILC each equal to share
NONE 1/2 of the of leg chi if
share of each more than one,
leg ch 1/4 if only one
2. Parents Parents 1/2 (equal Parents Parents 1/2
NONE between 1/2 Spouse 1/4
Leg chi 1/2 lines) ILC 1/4
3. ILC 1/2 ILC 1/4 1/2 ILC 1/3
Illegitimat share of leg chi Parents Spouse 1/3
e children Leg chi 1/2 1/2
4. Spouse - Spouse Spouse 1/2, Except:
Surviving Equal to share 1/4 1/3 1/3 in articulo
Spouse of each leg chi Parents ILC 1/3 mortis if
if more than 1/2 spouse died
one, 1/4 if only within 3 months
one Except if lived
Leg ch 1/2 together more
than 5 years
Q. Are there possible combinations of three?

A. Yes. They are as follows:
1. Parents/Illegitimate children/Spouse 1/2, 1/4, 1/8
2. Legitimate children/Spouse/Illegitimate children 1/2, share of each LC
or 1/4 if only one, 1/2 share of each LC but not to exceed free portion
Q. What is the order of priority in the legitime of the heirs of an illegitimate

decedent?
A. It is:
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1. Legitimate children/descendants both leg & illeg, since the bar of Art.
992 does-----------------------------------------------------------
not apply
2. Illegitimate children & legitimate and illegitimate descendants
3. Parents
4. Surviving spouse
Q. What is the legitime of the heirs of a ILLEGITIMATE DECEDENT?

Legitimate Illegitimate Parents Surviving

children children Spouse
1. Legitimate 1/2 (equal Leg ch Leg ch Leg ch
children among 1/2 1/2 1/2
themselves) ILC 1/2 Parents Spouse
share of each NONE equal to
leg chi share of leg
chi if more
than one, 1/4
if only one
2. Illegitimate ILC 1/2 1/2 of ILC 1/2 ILC 1/3
children share of each estate Parents Spouse
leg chi NONE 1/3
Leg ch
1/2 of estate
3. Parents Parents Parents 1/2 of Parents
NONE NONE estate 1/2
Leg ch ILC 1/2 Spouse
1/2 1/4
4. Surviving Spouse - Spouse Spouse 1/2,
Spouse Equal to 1/3 1/4 Except: 1/3 in
share of each ILC 1/3 Parents articulo
leg chi if 1/4 mortis if
more than spouse died
one, 1/4 if within 3
only one months
Leg ch Except if lived
1/2 together
more than 5
years
Q. Are there possible combinations of three?

A. Yes. But only one, that of the legitimate children/Spouse/Illegitimate
children 1/2, share of each LC or 1/4 if only one, 1/2 share of each LC but
not to exceed free portion
De la Merced v. De la Merced
303 SCRA 683 (1999)
Evarista died and her brother Francisco inherited. He

died too. His illegitimate son, Joselito, asked to be
part of Franciscos share in Evaristas estate. The
heirs of Francisco argue that being an illegitime child,
Joselito cannot inherit from Evarista, because of the
bar in Art. 992 prohibiting illegitimates from
inheriting from legitimates.
SUCCESSION REVIEWER
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HELD: Art. 992 is not applicable because involved
here is not a situation where an illegitimate child
would inherit from a legitimate sister of his father.
Rather, the illegitimate son would be inheriting from
his father, the latters share in what was already
inherited from the deceased sister, Evarista. So
there is no legal obstacle for the illegitimate son to
inherit in his own right as an heir to his fathers
estate.
Reserva Troncal
You fool! No man can kill me! Die now Witch King to Eowyn
I am no man! Eowyn to Witch King
CRC: The Spanish Civil Code used to have several provisions on reserva in
order to preserve wealth and ownership. The New Civil Code does away with
all of them except reserva troncal. This is a means of preserving wealth
within one family. But this is really a feudalistic and oligarchic in concept. It
is also contrary to the constitutional precepts on distribution of wealth.
Q. What is the difference between legitime and reserva troncal?

A. The testator, in legitime, is required to preserve certain aliquot shares.
But in reserva troncal, he is required to preserve certain specific properties.
Note: Only ascendants are burdened with the obligation to preserve.
Q. What is the most common scenario where reserva troncal occurs?

A. A parent (lets say the father, since Jack says men usually die before
women, since women are better suited to withstanding pain and suffering)
dies and leaves property to the son. The son dies then the property is
inherited by the mother.
Origin Reservista
(father) (mother)
gratuitous operation of
title law
Prepositus
(son)
Q. Who is the origin?

A. He is the source of the property.
Q. Which persons may be the origin?

A. Only two kinds of people may be origins:
1. Ascendant of the prepositus
2. Brother or sister of the prepositus
Solivio v. Court of Appeals

182 SCRA 119 (1990)
SUCCESSION REVIEWER
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Esteban acquired property from his mother. Esteban
died-----------------------------------------------------------
leaving as his heir a maternal aunt, and a
paternal aunt. The paternal aunt was able to have
the properties placed in her name. But the maternal
aunt filed an opposition, claiming that she is also an
heir. The maternal aunt claims that all of the
property is hers, since it is covered by reserva
troncal.
HELD: The property of Esteban is not reservable

property, because Esteban was not an ascendant,
but the desendant of his mother, from whom he
inherited the properties. Therefore, he did not hold
his inheritance subject to a reservation in favor of his
maternal aunt. The reserva troncal applies to
properties inherited by an ascendant from a
descendant, who inherited it from another
descendant. It does not apply to property inherited
by a descendant from his ascendant, the reverse of
the situation covered by reserva troncal.
Allan: I think the maternal aunt was claiming that Esteban was a reservista.
But Esteban, being a descendant, can never be a reservista. At most, he was
a probable prepositus, but since he no longer had an ascendant to transfer
the property to, reserva troncal never arose.
Q. Who can be the prepositus?

A. Any descendant can be a prepositus. It may be a child or a grandchild.
The degree does not matter.
Q. Illustrate the danger sought to be avoided by reserva troncal.

A. Paternal grandfather dies and leaves property to the grandson. Grandson
dies and his property is inherited by maternal grandmother. Without reserva
troncal, it is possible for the siblings of the grandmother to inherit the
property. Thus, the wealth is transferred from the paternal line to the
maternal line.
Q. Paternal grandfather dies, leaves property to grandson. Grandson dies,

leaves property to father.
A. There is no reserva troncal here, since the property never left the paternal
line.
Q. What are the principles to remember in reserva troncal?

A. They are as follows:
1. Reserva troncal is limited to the legitimate line.
2. There may be reserva troncal with an adopted child as prepositus, but
not always.
3. There may be reserva troncal with a collateral as origin, but not
always.
4. From the origin to the prepositus, the property should transfer by
gratuitous title.
5. From the prepositus to the reservista, the property should transfer by
operation of law.
6. The prepositus must not leave legitimate descendants.
SUCCESSION REVIEWER
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1. Reserva troncal-----------------------------------------------------------
is limited to the legitimate line.
Q. Why is reserva troncal limited to the legitimate line?

A. Because of the bar on illegitimate relatives from inheriting, provided by
Art. 992. So the only people who can benefit from the reserva troncal are
legitimate relatives of the origin and the prepositus.
Q. Lets take this step-by-step. Can the father donate property to the
illegitimate son?
A. Yes. The illegitimate son is entitled to succeed from the father.
Q. Can the property of the illegitimate son be inherited by the mother?

A. Yes. Parents are compulsory heirs of their children.
Q. So can the grandfather, uncle, or cousin inherit?

A. No. The bar provided by Art. 992 prevents the illegitimate from inheriting
from the legitimate relatives, and vice versa.
Q. What if the father has other illegitimate children, can they inherit via
reserva troncal as reservatarios?
A. There are two views:
1. One view provides that the reservatario inherits from the prepositus.
So under this view, the reservatarios can inherit, since the bar under
Art. 992 will not apply to prevent illegitimates from inheriting from
other illegitimates.
2. Second view says that the reservatario inherits from the reservista.
There can be no transfer here, since the bar under Art. 992 will apply.
CRC: The weight of the authorities is with the first view, that the
reservatarios inherit from the prepositus. So the bar of Art. 992 will not
apply, and they can inherit.
2. There may be reserva troncal in the adopted line, but not always.
Q. Can an adopted child be a reservatario? For example, father dies, leaves

property to son. Son dies, leaves property to mother. Father and mother
have an adopted child. Is there reserva troncal in favor of this child?
A. It all boils down to the twin requirements that the reservatario should be in
the direct line and should be within three degrees from the prepositus. So if
the adopted son is a nephew or an uncle of the prepositus, then it is allowed.
If the adopted son was an illegitimate child of the father, then it is allowed.
But if the adopted son is a stranger, then it is not allowed. It may be argued
that adoption creates a line by fiction of law. But this line exists only
between the father and the adopted son. The prepositus is not connected to
the adopted son, so the adopted cannot claim.
Q. Can an adopted child be a prepositus?

A. No. The line created is personal between the adopter and the adoptee.
3. There may be reserva troncal in the collateral line, but not always.
SUCCESSION REVIEWER
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Q. Father and Mother have two children, A and B. Father dies. A dies and
wills the property-----------------------------------------------------------
to B. B dies without issue, and the property transfers to
his mother. Is there reserva here?
A. No. The danger sought to be avoided by reserva is not present, because
the child A, and his mother both belong to the same line. So there is no
obligation to preserve the property in favor of the line from which the
property came from.
Q. In what instance may the brother or sister be an origin?

A. It is limited to when the sibling is a half-brother or a half-sister. Father and
Mother marry, bears Cinderella. Mother dies. Father marries Step Mother,
bears Snow White. If Father dies and transfers property to Cinderella.
Cinderella dies transferring property to Snow White. Snow White dies,
transferring property to Step Mother. At this point, the property has changed
lines. So there is reserva troncal. Step Mother now has to preserve the
property in favor of the reservatarios from the Fathers line.
Q. Im confused.
A. Study illustration below:
Mother Father Step Mother
(reservista)
gratuitous title operation
Cinderella Snow White of law
(origin) (prepositus)
Q. Can the reservatario be a sibling or a collateral?

A. Yes, as long as he or she is in the same line and is within the third degree
of the preopositus.
Q. Can the reservista be a collateral?

A. Never. The reservista is always an ascendant.
4. From the origin to the prepositus, the property should transfer by

gratuitous title.
Q. How should the property transfer from the origin to the prepositus?
A. It should transfer by gratuitous title. This limits the manner of transfer to
donation and succession. Both testate and intestate succession are covered.
Even the legitime is covered. So a transfer is gratuitous if the prepositus
does not pay for the property transferred.
Q. What if the property acquired by the prepositus was sold to the reservista,
then purchased again by the prepositus?
A. Then the property would no longer be covered by reserva troncal, because
it was now acquired for consideration.
5. From the prepositus to the reservista, the property should transfer by

operation of law.
Q. How should property transfer from the prepositus to the reservista?

A. By operation of law. This includes both the transfer by legitime or by
intestacy.
SUCCESSION REVIEWER
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Q. What portion of the property transferred by legitime is covered by reserva
troncal?-----------------------------------------------------------
A. This is answered by the theory of reserva maxima and reserva minima.
FACTS: Father dies, transfers hacienda to son.
Q. What if the hacienda is the only property of the son?

A. Then the entire hacienda goes to the reserva. There is a maxima/minima
distinction only when the prepositus has other property.
Q. What if the property transmitted from the origin to the prepositus is cash?
A. If the cash is the only property of the son and he did not spend the entire
thing, then it will be covered by reserva.
CRC: If the son dies intestate and does not have property apart from what he
obtained from the origin, forget reserva maxima/minima. The entire property
goes to reserva. Maxima/minima applies only when the son owns some
property of his own property.
FACTS: Sons net estate: P100M cash, hacienda worth P100M. Dies without
issue survived only by his mother. Will says, All to my mother.
Q. Explain reserva maxima under the given facts.

A. In reserva maxima, as long as the property can be accommodated in the
legitime, the entire property will be reservable. So the entire hacienda is
covered by the reserva since it can be accommodated into the legitime. The
legitime will be the hacienda worth P100M, the free portion will be the P100M
cash.
Q. Explain reserva minima under the given facts.

A. All the property passing to the reservista must be considered as passing
partly by operation of law and party by will of the testator. So you will get
50% of the lot by legitime, 50% by reason of the will. Here, only half of the
hacienda becomes reservable.
Q. Which is preferred?
A. The one more preferred is usually reserva minima. It is more democratic.
But it does not answer the purpose of the reserva troncal.
6. The prepositus must not leave legitimate descendants.
Q. If the prepositus has his own descendants, will there still be reserva?
A. No. For the legitimate prepositus, his legitimate children will exclude the
ascendants. The legitimate descendants will prevent the inheritance of
ascendants. For the illegitimate prepositus, there is a bar in Art. 992 from
inheriting. Essentially, there is no reserva in the illegitimate family. There is
only reserva in the legitimate line.
SUCCESSION REVIEWER
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Q. What are the qualifications of the reservatarios?
A. They must be -----------------------------------------------------------
in the same line as the prepositus, and within three degrees
from him.
Q. So who are these people? Indicate also whether they may be

reservatarios.
A. Let us identify all the heirs that fall within the same line and within the
third degree:
1. First degree
a. Parents NO; will be the reservista
b. Children NO; Leg - will exclude the ascendant, Illeg no reserva
2. Second degree
a. Grandparents YES
b. Brother/sister YES
c. Grandchildren NO; Leg will exclude ascendant, Illeg no
reserva
3. Third degree
a. Great grandparents YES
b. Great grandchildren NO; Leg will exclude ascendant, Illeg no
reserva
c. Nephews and nieces YES
d. Uncles and aunts - YES
Residual Issues on Reserva
Q. From whom does the reservatario inherit?

A. From the prepositus. Theoretically, there is no absolute ownership by the
reservista. So he isnt the one from whom the reservatario should inherit.
The reservatario just has to survive the reservista in order to inherit.
Q. Is there representation among the reservatarios?

A. Only insofar as those who represent each other belong to the third degree.
Those in the third degree can represent those in the second degree, those in
the second degree can represent those in the first degree. The only effect is
for them to obtain preference, since the nearer exclude the further. But
those beyond the third degree can never inherit by reserva troncal, not even
by representation. Cousins therefore cannot obtain the reserva, since they
are in the fourth degree. They are barred from inheriting the reserva.
Q. Compare the reservista in reserva troncal with the fiduciary in

fideicommissary substitution.
Reservista Fiduciary
Takes the property not knowing it is Takes the property knowing that it is
subject to reserva troncal, especially subject to a subsequent transfer
if the ascendant does not know
where the property of the
prepositus/descendant comes from
Usually in good faith; does not know He knows that he has fiduciary duties
his duties
SUCCESSION REVIEWER
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Reserva troncal does not have to be Fideicommissary substitution has to
provided in the-----------------------------------------------------------
will be provided for in the will
Has some duties (unsettled) A position of trust, has certain trust
characteristics, so he has the duty to
preserve and to transfer
Q. Does the reservista have to comply with duties?

A. Under the Spanish Civil Code, the reservista in reserva viudal had three
duties. The provisions stated that the reservista in reserva troncal has the
same duties. These duties are as follows:
1. To annotate the nature of the reserva
2. To make an inventory of the assets under reserva
But the New Civil Code has done away with reserva viudal, and there are no
longer duties provided in the Code. So some commentators will say that he
has no duties, despite of the rulings in the cases of Gonzales and Sumaya.
Sumaya v. IAC
201 SCRA 178 (1991)
Raul inherited property from his father. He died and

this property was inherited by his mother, who sold
the property to Sumaya. Upon the death of
Consuelo, Rauls brothers and sisters filed a case
claiming that the property sold to Sumaya was
reservable in character, and claim reconveyance.
Sumaya claims that it is an innocent purchaser for
value.
HELD: The reservista (here, Consuelo the mother)

has the obligation to annotate the reservation in the
title. The jurisprudential rule requiring annotation of
the property subject to reserva viudal as it applies to
reserva troncal stays despite the abolition of reserva

viudal. The right to compel registration accures upon
the time of the death of the reservista and not upon
the death of the prepositus. Only when the
reservista dies will the reservatario acquire the
reserved property and only then will they take their
place in the succession of the prepositus of whom
they are relatives within the third degree.
Although there was no annotation on the title,

Sumaya was not an innocent purchaser for value,
since the parties had knowledge of the reservable
character.
Q. If the reservista does not cause the annotation of the reserva on the title,
what can the reservatario do?
A. He can ask for the annotation. He has personality to ask for the lien to be
annotated. But there will be no penalty for the reservista for his omission.
Q. Can there be an innocent purchaser for value?

A. If the reservation is annotated, then there can be no innocent purchaser
for value.
SUCCESSION REVIEWER
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Q. But is the sale-----------------------------------------------------------
still valid?
A. Yes, because the reservista has valid title. CRC says however, that the
Supreme Court pronouncements on this matter have vacillated (or, as CRC
says, has flip-flopped).
Q. What is the right of the reservatario in this case?

A. He can ask for the return of the property. But this right is subject to
prescription.
Completing the Legitime (includes Inofficious Donations & Legacies

and Devices)
Home is behind, the world ahead,
And there are many paths to tread.
Through shadow, to the edge of night,
Until the stars are all alight.
Mist and shadow, cloud and shade,
All shall fade! All shall fade ...
- Pippin singing
Q. Why is reserva troncal placed together with legitimes?

A. Because the reserved property is not included in the inventory of the
assets to complete the net estate of the heir
Gonzales v. CFI Manila

104 SCRA 479 (1981)
Filomena inherited property from her father Benito.

Filomena died intestate, so property was inherited by
mother, Mrs. Legarda. Mrs. Legarda executed a will
bequeathing the property to her grandchildren. After
she died, one of her daughters sought to exclude
from the inventory that Mrs. Legarda obtained from
her daughter Filomena. The daughter (2nd degree)
claims that these properties are subject to reserva
troncal. The grandchildren (3rd degree) in turn argue
that since they are heirs in the third degree, then the
result is the same.
HELD: Mrs. Legarda cannot convey the reservable

property which she inherited from Filomena. All of
the reservatario are equally entitled to share in the
reserva troncal. While it is true that by giving the
reservable property to only one reservatario that it
did not pass to the hands of strangers, nevertheless,
it is likewise true that the grandchildren were only
some of the reservatario and there is no reason why
SUCCESSION REVIEWER
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the other reservatarios should be deprived of their
-----------------------------------------------------------
share in the reservable property.
Q. What are the steps in completing the legitime?

A. They are:
1. Listing and valuation of the assets of the deceased
2. Computation of the Net Partible Estate
3. Imputing the donations
4. Reduction of the donations
1. Listing and valuation of the assets of the deceased
CRC: This should include only the assets of the deceased at the point of
death. From this inventory, subtract the liabilities of the testator. This figure
is called the Net Estate. You proceed to the computation of the net partible
estate only when you have more assets than liabilities. When you have more
liabilities than assets, you have an insolvent estate. So apply the provisions
of the Code on Concurrence and Preference of Credits to partition the estate
among the creditors.
2. Computation of the Net Partible Estate
CRC: The net partible estate is computed by collating the donations and
adding this to the Net Estate. Collation is done for purposes of equalization
among the heirs. At this point of collation, there is no actual or physical
return of the assets. Only the value at the time of the donation is brought
back to the estate. All transfers which are gratuitous are collated. Transfers
to both
compulsory heirs and voluntary heirs are collated. The value obtained is the
Net Partible Estate. This becomes the basis for the legitime and the free
portion.
3. Imputing the donations
FACTS: X dies, leaving as heirs his children A and B, wife Y. He gave a

donation of P50M to A during his lifetime, and P50M to stranger. He left
P170M of assets, P20M liabilities.
Inventory P170M
- Liabilities P 20M
--------
Net Estate P150M
+ Donations P 50M
--------
Net Partible Estate P200M
So:
Legitime Donations
given
A P50M P50M
B P50M -
Y P50M -
Stranger - P50M
SUCCESSION REVIEWER
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The donation -----------------------------------------------------------
of P50M to A, the child, is imputed to his legitime. The
donation to the stranger of P50M is imputed to the free portion. Both are
allowed. Note that the P200M need not be at hand. As in this case, some of
the shares (particularly the donation to A and the Stranger) have been paid
already.
4. Reduction of the donations
This is done only when the legitime is impaired. The basic things to
remember:
1. Donations are given priority; annul or reduce the legacy and devise ahead
of the donation.
CRC: The legacies and devises are contained in a will. The donation is inter
vivos. Both constitute the testators free will, so it should be respected. But
the donation was done earlier, so it is given preference.
Q. Art. 911 says that the reduction of the devises or legacies shall be pro
rata, without any distinction whatsoever. But Art. 950 says that the
reduction of devises and legacies follow a certain order, that is,
remuneratory, preferential, those for support, then education. How do you
reconcile this conflict?
A. Art. 911 applies only when the question of preserving the legitime of
compulsory heirs from inofficious dispositions is involved, while Art. 950
applies when such question is not involved in the case, and the conflict is
only among the legatees and devisees only, since the only people who
survive are the legatees and devisees.
Q. What is the rule where the devise or legacy consists of a usufruct or life
annuity?
A. If the value can be accommodated in the free portion, it is to be
respected. If its value is greater than that of the disposable portion, the
compulsory heirs may choose between:
1. Complying with the testamentary provision, or
2. Delivering to the devisee or legatee the entire free portion only
Art. 912. If the devise subject to reduction should consist of real property,
which cannot be conveniently divided, it shall go to the devisee if the
reduction does not absorb one-half of its value; and in a contrary case, to the
compulsory heirs; but the former and the latter shall reimburse each other in
cash for what respectively belongs to them. The devisee who is entitled to a
legitime may retain the entire property, provided its value does not exceed
that of the disposable portion and of the share pertaining to him as legitime.
Imperial v. Court of Appeals

316 SCRA 393 (1999)
Leoncio Imperial donated property to Eloy Imperial,

his son. Leoncio died, leaving as his heirs, Eloy, and
an adopted son, Victor. After the death of Victor, his
biological siblings filed a complaint to annul the
donation, claiming it is inofficious, as it impaired the
SUCCESSION REVIEWER
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legitime of Victor. Eloy, the donee son, claims there
has -----------------------------------------------------------
been prescription.
HELD: This is a case of a real action over an

immovable. The Civil Code does not provide for the
prescriptive period for the reduction of inofficious
donations. So the general rule applies, embodied in
Art. 1144 which says that actions upon an obligation
created by law must be brought within 10 years from
the time the right of action accrues. Thus, the 10
year period applies to the obligation to reduce
inofficious donations. This shall be reckoned from
the time the cause of action accrues, which is upon
the death of the donor-decedent. This is because
only then can the net estate be ascertained and the
legitimes determined. The case was filed 24 yers
after the death of Leoncio, the original decedent. So
the action has long prescribed. Note that a claim for
legitime does not amount to a claim for title.
2. When the legacies and the devises are exhausted and the legitime is still
impaired, reduce the donations.
Q. Is there any preference among donations?

A. Based on time. The rule is last in, first out. So the prior donations are
respected since they were given ahead.
Q. When it is necessary to bring the donation back to the estate, is the

donee charged with interest?
A. No. There is no penalty or damages or interest imposed on the donee,
since it was given by the testator.
Q. What is the exception on donations that may not be collated even when it
impairs the legitime?
A. The exception is found in Art. 1070: Wedding gifts by parents and
ascendants consisting of jewelry, clothing, and outfit, shall not be reduced as
inofficious except insofar as they may exceed one-tenth of the sum which is
disposable by will.
Vizconde v. Court of Appeals

286 SCRA 217 (1998)
Estrellita purchased from Rafael, her father, the

Valenzuela property. She sold this and bought the
Paranaque property. When she died, half of the
Paranaque property was inherited by her father, and
half was inherited by her husband, Lauro, since she
died without issue. The father died. Later, the heirs
of the father claim that the sale to Estrellita of the
Valenzuela property was simulated. Hence, the
Paranaque property, which was purchased from the
sale of the Valenzuela property, should be brought to
Rafaels estate for collation.
SUCCESSION REVIEWER
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HELD: The order of collation is premature, because
the-----------------------------------------------------------
records do not indicate that the legitime of any of
Rafaels heirs have been impaired to warrant
collation. In any case, the husband is not one of
Rafaels compulsory heirs. The husband was not
even a creditor of the father. Hence, he may not be
dragged into the intestate proceedings.
Furthermore, it is to be stressed that Estrellita died
ahead of her father. In fact, it was the father who
inherited from Estrellita. Thus, collation may not be
allowed as to the value of the Valenzuela property,
since it has long been returned to the estate of
Rafael.
Collation is an act by virtue of which the descendants

who intervene in the division of the inheritance bring
into the common mass, the property received from
him, so that the division may be made according to
law and the will of the testator. Collation is only
required of compulsory heir succeeding with other
compulsory heirs and involves not the property itself
but the value of the property at the time it was
donated. Hence, collation does not impose any lien
on the property or the subject matter of the
collationable donation.
Disinheritance
That future is almost gone. Elrond to Arwen
But it is not lost. Arwen to Elrond
Q. What is the effect of disinheritance?

A. Disinheritance deprives a compulsory heir of his legitime and his share in
the free portion.
Q. How do you effect a disinheritance?

A. Only through a will, and the legal cause shall be specified.
Q. What are the common grounds for disinheritance?

A. They are:
1. When the heir has been found guilty of an attempt against the life of
the testator, his or her spouse, descendants, or ascendants;
2. When the heir has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has
been found groundless;
3. When the heir by fraud, violence, intimidation, or undue influence
causes the testator to make a will or to change one already made;
4. A refusal without justifiable cause to support the testator
1. When the heir has been found guilty of an attempt against the
life of the testator, his or her spouse, descendants, or
ascendants.
SUCCESSION REVIEWER
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Q. Is final conviction needed?
A. It is needed-----------------------------------------------------------
only to disinherit the ascendant and the descendant. As for
the spouse, conviction is not needed, because an attempt against the life of
a spouse is ground for legal separation. One of the grounds for disinheriting
a spouse is when he or she gives ground for legal separation.
Q. So is legal separation needed to disinherit?

A. No. Merely giving ground is sufficient.
Q. Does the attempt include the other stages in the criminal act?
A. Only the frustrated stage. It cannot include the consummated stage,
because after the heir kills the testator, the testator can no longer validly
disinherit the heir, on account of his death. However, the heir still cannot
inherit because of unworthiness. Unworthiness arises by operation of law,
and there is no need for it to be provided in the will.
2. When the heir has accused the testator of a crime for which the
law prescribes imprisonment for six years or more, if the
accusation has been found groundless;
Q. Explain the six years penalty.

A. It means that six years is the maximum imposable penalty. It does not
pertain to the actual penalty imposed.
Q. Must the heir file the criminal complaint himself?

A. No. He may just be a witness. Note that by reason of filial privilege, the
heir cannot be compelled to testify. So if he testify, he waives this privilege
and a cause for disinheritance arises. However, the accusation here is must
be groundless. The truth, as CRC says, shall set you free.
Q. To disinherit the descendant, the accusation must be groundless,

and for the ascendant and the spouse, false. Any difference?
A. None. No distinction.
Q. Who determines if the accusation is groundless?

A. The court makes the finding, by acquitting the accused testator. The
finding of groundlessness does not lie with the testator.
3. When the heir by fraud, violence, intimidation, or undue influence

causes the testator to make a will or to change one already
made;
Q. Is there a need for the new will to benefit the new heir?
A. No. So even if the will is made for the benefit of the maid or the driver,
the heir is disinherited.
Allan: CRC thinks this ground is unfair.
4. A refusal without justifiable cause to support the testator
CRC: The refusal here has to be unjustified. If the heir has no resources,
obviously the refusal cannot be unjustified. If the heir has resources, you
have to check the reason. If the reason is merely greed, then the testator
SUCCESSION REVIEWER
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may disinherit. If the reason is because whenever the heir gives him money,
he goes and buys -----------------------------------------------------------
liquor, then the refusal is justified.
Q. What are the grounds for disinheriting a descendant which is

unique to him?
A. They are:
1. Maltreatment of the testator by word or deed, by the child or
descendant;
2. When a child or descendant leads a dishonorable or disgraceful life;
3. Conviction of a crime which carries with it the penalty of civil
interdiction.
Q. What does maltreatment of the testator consist of?

A. Not just physical, hence by word or deed. So if you go around and tell
people about family secrets, then this is a ground for disinheritance. But the
maltreatment should be intentional.
Q. Why does leading a dishonorable life constitute a ground for

disinheritance?
A. Although the child may argue that he may lead his life the way he
chooses, doing so will cause damage to the name of the testator. So he may
disinherit the child. The dishonorable life need not be sexual in nature.
Leading a life of an estafador can also be ground for disinheritance.
Note: Civil interdiction is an accessory penalty, imposed for crimes where the
penalty is death, reclusion perpetua and reclusion temporal.
Q. What are the grounds for disinheriting an ascendant which is

unique to him?
A. They are:
1. When the parents have abandoned their children or induced their
daughters to live a corrupt or immoral life, or attempted against their
virtue;
2. When the parent or ascendant has been convicted of an attempt
against the life of the testator, his or her spouse, descendants, or
ascendants;
3. The loss of parental authority for causes specified in this Code;
4. An attempt by one of the parents against the life of the other, unless
there has been a reconciliation between them.
Q. What are the grounds for disinheriting a spouse which is unique

to him?
A. They are:
1. When the spouse has given cause for legal separation;
2. When the spouse has given grounds for the loss of parental authority;
CRC: There are 10 grounds for legal separation, but only 8 grounds are due
to a spouse. Those which do not arise because of the fault of the spouse
should not be grounds for disinheriting. For instance, acquiring a sexually
transmissible disease through a blood transfusion need not be a ground for
disinheriting.
Allan: But sexually transmissible disease does not seem to be a ground for
legal separation. It is a ground to annul the marriage.
SUCCESSION REVIEWER
------------------------------------------------------------------------------------------
Q. Why is giving ground for loss of parental authority a ground to
disinherit the-----------------------------------------------------------
spouse?
A. Because when the spouse does something to the child, this can be cause
for hurting the feelings of the testator.
Q. What is the effect of subsequent reconciliation?

A. A subsequent reconciliation between the offender and the offended person
deprives the latter of the right to disinherit, and renders ineffectual any
disinheritance that may have been made.
Q. Is there representation in disinheritance?

A. Yes. The children and descendants of the person disinherited shall take
his or her place and shall preserve the rights of compulsory heirs with
respect to the legitime; but the disinherited parent shall not have the
usufruct or administration of the property which constitutes the legitime.
Midterms
The very warmth of my blood seems drawn away. Gimli, on the road to Dimholt

Succession Reviewer Carmelita B. Juanzon

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SUCCESSION REVIEWER

Dont go where I cant follow! Sam to Frodo

Q. What are the elements of succession?

1. Mode of acquiring ownership

Succession - a mode of acquiring ownership, similar to tradition

Q. Sale is a mode of transferring title, but it is delivery or tradition which

2. Transfers rights, properties and obligations

Q. What rights are transferred via succession?

Q. What is the rule on the transfer of obligations?

Q. Examples of obligations which may transfer to the heirs please.

3. Transferred by will or operation of law

Q. Is the will purely up to the wishes of the testator?

4. Death of the testator

Death completes the transfer of title; succession is always mortis causa

Q. When does a person die?

Ordinary rule: - after absence of ten years

Extraordinary - the following are presumed dead for purposes of

Q. When is the person presumed dead?

CRC: Other writers mention additional requisites such as the existence of

My friends, you bow to no one. Aragorn kneeling before the Hobbits.

(1)Testamentary - that which results from the designation of an heir, made in

Q. What property is included in the inheritance of a person?

Q. Who are the parties in succession?

Q. What are the elements of a will?

2. The will should be made by a person

3. Formalities of the will

4. Control over disposition

6. To take effect after the death of the person.

Rules on Interpretation of Wills

Q. What is the general rule on interpretation of wills?

Q. What are the types of ambiguities?

Q. What is the rule on intrinsic ambiguities?

Q. What is the rule on extrinsic ambiguities?

Q. Why exclude the oral declarations of the testator as to his intention?

Q. What are some other rules on interpretation of wills?

2. The words of a will are to receive an interpretation which will give to

Q. What properties are covered by the will?

Q. So at what point in time do you determine what properties are included in

Q. What are the exceptions?

Q. What is covered by the devise or legacy of a testator?

Determining the Validity of the Will

Q. What do you look at to determine the validity of the will?

Lorenzo Llorente married Paula, departed for the US,

ISSUE: Whether or not foreign law governs the

HELD: Lorenzo became an American citizen long

There is no such thing as one American Law. Each

The decree of divorce between Lorenzo and Paula is

Q. What does this case talk about?

Jose Cunanan and Evelyn Cunanan are US citizens

HELD: The wills of the Cunanan spouses will only be

i. due execution of the will in accordance with

Salud submitted evidence except for the first and

Q. What does this case talk about?

The judge also denied the motion to present

Q. Why would a will admitted to probate abroad be reprobated in RP?

Q. Joint wills are not allowed. Is joint probate allowed?

Testamentary Capacity and Intent

Q. Who may make a will?

Q. Does the testator have to be sane to execute a will?

Q. What does testamentary capacity require?

Q. Does disease affect testamentary capacity?

Q. Does drunkenness affect testamentary capacity?

Q. Does commission of a crime affect testamentary capacity?