Succession TSN 2014

WILLS AND SUCCESSION LECTURES
Atty. Leilanie Yang-yang-Espejo, CPA
JUNE 23, 2014 properties? These properties without a successor would

become idle, becomes stagnant. So what property to be
How do you define Succession? beneficial to the society or to the community in general
there has to be transmission of these properties. Through
succession, the deceased person transfers his properties.
Article 774. Succession is a mode of acquisition by virtue of
which the property, rights and obligations to the extent of the
value of the inheritance, of a person are transmitted through 3) An Attribute of Ownership – it is provided by
his death to another or others either by his will or by operation Article 428 of the Civil Code
of law. (n)
Art. 428. - The owner has the right to enjoy and dispose of a
Have you encountered Succession in your other subjects? thing, without other limitations than those established by law.
Constitutional Law – the only mention of Succession in the As an owner of the property, you have the right to use the
Constitution property, to enjoy the property, to possess the property,
to destroy the property and to dispose the property.
Transferring your property not only during your lifetime
Section 7, Article XII of the Constitution. – Save in cases but after your death is also an attribute of ownership
of hereditary succession, no private lands shall be transferred because if you can only dispose of your property during
or conveyed except to individuals, corporations, or associations your lifetime but not upon you death impairs your right of
qualified to acquire or hold lands of the public domain. ownership. Ownership in the full sense you have to have
the right to dispose of the property not only during their
What kind of Succession is being referred to in the lifetime but even after the death.
Constitution? By hereditary succession.
There are several KINDS OF SUCCESSION
RAMIREZ v. RAMIREZ
1) Succession inter vivos – from the word “inter
So in the Constitution it means LEGAL or INTESTATE vivos” means transfer during the lifetime. The transfer
SUCCESSION because if we allow testamentary succession or is intended to take effect during the lifetime of the
by will it would be very easy to circumvent the prohibition decedent.
against foreigners owning lands in the Philippines. You can just
execute a last will and testament and then devise the land to a 2) Succession mortis causa – “mortis causa” means
foreigner. upon the death. The ownership is transferred upon
the death of the decedent.
How about legitimes? Would it be covered by the prohibition?
Succession to the legitime is also provided for by law. It is not Donation inter vivos – the transfer here of ownership
because of the will of the testator even against the will of the happens during the lifetime of the donor. So it is also donation
testator even if he does not want it, he has to provide for his proper. The one you discussed in property.
compulsory heirs who are entitled to get legitimes but
definitely voluntary succession is not contemplated as covered Donation mortis causa – is similar to succession mortis
under the term hereditary succession. Only succession that is causa. Here the transfer of ownership happens upon the death
provided for by law – intestate, forced succession (legitime). of the donor.
What are the BASIS OF SUCCESSION? Is there any difference between succession (inter vivos/mortis
causa) and donation (inter vivos/mortis causa)?
1) Natural Law – even if there is no inherent right to
the properties of your predecessors, succession is When you say succession mortis causa and donation mortis
merely a privilege but it is by reason of natural law causa, they mean the same thing. When you say succession
that we have law on succession. Why? Because it is in inter vivos and donation inter vivos, they also mean the same
the nature of man to provide for those who he will thing.
leave behind.
Succession inter vivos/Donation inter vivos – referring here of
2) Socio-Economic Postulate – Here, succession is a transfer by gratuitous title during the lifetime of the
intended to prevent the property from becoming idle. transferor/ donor/ giver
For example a person dies, he has several properties,

what will happen to these properties upon his death if
there is no succession? So these properties will remain
under his ownership. Who will now take care of his
A.Y. 2014 JUSTIN RYAN – RANIZZA – RENIE JAY – SIGRID KIM| 1
WHAT LAW SHALL GOVERN? presents transfer and convey, by way of DONATION,
unto the DONEE the property above, described, to
1. Inter vivos – governed by the law on donation, to become effective upon the death of the DONOR; but
successfully transfer inter vivos a property which you in the event that the DONEE should die before the
intend to give gratuitously – you have to comply with DONOR, the present donation shall be deemed
the formalities of donation. rescinded and of no further force and effect.
What are these formalities? It depends. xxx xxx xxx.
 If it is a personal property which values less than Disposition mortis causa.

5000, there can be simultaneous delivery and there
has to be acceptance. More than 5000 (personal The distinguishing characteristics of a donation mortis
property), it has to be made at least in writing or in a causa are the following:
private document so as acceptance.
 If it is an immovable property or real property, 1. It conveys no title or ownership to the transferee
regardless of the value the donation and acceptance before the death of the transferor; or, what amounts
must be in a public document. to the same thing, that the transferor should retain
the ownership (full or naked) and control of the
2. Mortis causa – we have Art. 728 of the NCC property while alive;
Article 728. Donations which are to take effect upon the 2. That before his death, the transfer should be
death of the donor partake of the nature of testamentary revocable by the transferor at will, ad nutum; but
provisions, and shall be governed by the rules established in revocability may be provided for indirectly by means
the Title on Succession. (620) of a reserved power in the donor to dispose of the
properties conveyed;
So meaning if you are transferring property by gratuitous title
and it is intended to take effect after the death of the giver, 3. That the transfer should be void if the transferor
transferor or donor, you have to comply with the formalities of should survive the transferee.
succession. It is to be governed by the law on succession. To
effectively transfer ownership of the property you are
In the donation subject of the present case, there is nothing
transferring gratuitously mortis causa, you have to observe the
therein which indicates that any right, title or interest in the
formalities of will.
donated properties was to be transferred to Ursulina prior to
the death of Celestina.
Otherwise, even if you embodied the transfer in a public
document and accepted in a public document but the transfer
The phrase "to become effective upon the death of the
would take effect only after the death of the donor, it is not a
DONOR" admits of no other interpretation but that Celestina
valid transfer. It is as if there is no donation, it would just be
intended to transfer the ownership of the properties to
disregarded because the appropriate form you have to observe
Ursulina on her death, not during her lifetime.
is a form of a will. Without that the transfer would not be
effective. Therefore, it is very important that you should know
whether the transfer is inter vivos or mortis causa because you More importantly, the provision in the deed stating that if the
have to embody the transfer in a proper document. It is donee should die before the donor, the donation shall be
important also so that we would be able to know what form deemed rescinded and of no further force and effect shows
we have to observe whether you have to comply with the form that the donation is a postmortem disposition.
of a donation or of a will.
As stated in a long line of cases, one of the decisive
GANUELAS v. CAWED characteristics of a donation mortis causa is that the transfer
should be considered void if the donor should survive the
donee.
The pertinent provision of the deed of donation reads,
quoted verbatim:
More. The deed contains an attestation clause expressly
confirming the donation as mortis causa:
xxx xxx xxx
SIGNED by the above-named donor, Celestina

That, for and in consideration of the love and
Ganuelas, at the foot of this deed of donation mortis
affection which the DONOR has for the DONEE, and
causa, consisting of two (2) pages and on the left
of the faithful services the latter has rendered in the
margin of each and every page thereof in the joint
past to the former, the said DONOR does by these
presence of all of us who at her request and in her
presence and that of each other have in like manner affection of the DONOR for the DONEE, x x x the
subscribed our names as witnesses. DONOR does hereby, by these presents, transfer,
convey, by way of donation, unto the DONEE the
To classify the donation as inter vivos simply because it is above-described property, together with the buildings
founded on considerations of love and affection is erroneous. and all improvements existing thereon, to become
That the donation was prompted by the affection of the donor effective upon the death of the
for the donee and the services rendered by the latter is of no DONOR; PROVIDED, HOWEVER, that in the event
particular significance in determining whether the deed that the DONEE should die before the DONOR,
constitutes a transfer inter vivos or not, because a legacy may the present donation shall be deemed
have an identical motivation.32 In other words, love and automatically rescinded and of no further force
affection may also underline transfers mortis causa. and effect; x x x" (Emphasis Ours)
The distinguishing characteristics of a donation mortis Donation mortis causa but it is void.
causa are the following:
In the present case, the nature of the donations as mortis
1. It conveys no title or ownership to the transferee causa is confirmed by the fact that the donations do not
before the death of the transferor; or, what contain any clear provision that intends to pass proprietary
amounts to the same thing, that the transferor rights to petitioners prior to Cabatingan's death.14 The phrase
should retain the ownership (full or naked) and "to become effective upon the death of the DONOR" admits of
control of the property while alive; no other interpretation but that Cabatingan did not intend to
transfer the ownership of the properties to petitioners during
her lifetime. Petitioners themselves expressly confirmed the
- When the transferor retains ownership or title whether full or donations as mortis causa in the following Acceptance and
naked ownership as long as he retains ownership so he did not Attestation clauses. That the donations were made "in
intend yet to transfer the title to the done during his lifetime is consideration of the love and affection of the donor" does not
one characteristic of donation/ succession mortis causa. qualify the donations as inter vivos because transfers mortis
causa may also be made for the same reason.
2. That before his death, the transfer should be
revocable by the transferor at will, ad nutum; but Considering that the disputed donations are donations mortis
revocability may be provided for indirectly by means causa, the same partake of the nature of testamentary
of a reserved power in the donor to dispose of the provisions and as such, said deeds must be executed in
properties conveyed; accordance with the requisites on solemnities of wills and
testaments under Articles 805 and 806 of the Civil Code. The
- In this case, he already transferred the property although he deeds in question although acknowledged before a notary
can revoke. Why considered mortis causa? The title itself is public of the donor and the donee, the documents were not
transferred although the transfer is revocable. In a real executed in the manner provided for under the above-quoted
donation, can a donor revoke the donation for any reason? provisions of law. Thus, the trial court did not commit any
(Because I think you are ugly. Sa una gwapo ka karon pangit reversible error in declaring the subject deeds of donation null
naka. ) NO but here, for any reason you may revoke. In and void.
succession, wills are essentially revocable. At any time for any
reason or without any reason at all, it may be revoked. Would it matter that the deed of donation was in a public
document or notarized? Should we just disregard the public
3. That the transfer should be void if the transferor document because it is not in a form of a will? Yes. Even if it is
should survive the transferee. in a public document, even if it is notarized because it is not in
a form of a will. That’s the simple reason.
- In Succession, the heirs should not die ahead of the testator
or decedent. To be an heir you should succeed the decedent, CUEVAS v. CUEVAS
you should not predecease the decedent.
Hence, the crux of the controversy revolves around the
Any of these characteristics would be present the transfer or following provisions of the deed of donation:
disposition would be considered mortis causa and not inter
vivos. Dapat maalaman ni Crispulo Cuevas na samantalang
ako ay nabubuhay, and lupa na ipinagkakaloob ko sa
MAGLASANG v. CABATINGAN kaniya ay ako pa rin and patuloy na mamomosecion,
makapagparatrabaho, makikinabang at ang iba pang
These deeds of donation contain similar provisions, to wit: karapatan sa pagmamayari ay sa akin pa rin
hanggang hindo ko binabawian ny buhay ng Maykapal
at ito naman ay hindi ko nga iya-alis pagkat kung ako
"That for and in consideration of the love and
ay mamatay na ay inilalaan ko sa kaniya. memorize. And you have to memorize because the definition
gives us what succession is all about.
There is an apparent conflict in the expression above quoted,
in that the donor reserves to herself "the right of possession, So here in Article 774, succession is actually a mode of
cultivation, harvesting and other rights and attributes of acquisition. It is a manner by which you could acquire
ownership while I am not deprived of life by the Almighty"; but property. It is not the person, it is not the right, it is not the
right after, the same donor states that she "will not take away" obligation but it is the mode.
(the property) "because I reserve it for him (the donee) when I
die." Actually, this is mentioned under Article 712 of the Civil Code
which you discussed before in property.
Disposition inter vivos
Art. 712. Ownership is acquired by occupation and by
intellectual creation.
The decisive proof that the present donation is operative inter
vivos lies in the final phrase to the effect that the donor will Ownership and other real rights over property are
not dispose or take away ("hindi ko nga iya-alis" in the acquired and transmitted by law, by donation, by
original) the land "because I am reserving it to him upon my estate and intestate succession, and in consequence of
death." By these words the donor expressly renounced the certain contracts, by tradition.
right to freely dispose of the property in favor of another (a
right essential to full ownership) and manifested the They may also be acquired by means of
irrevocability of the conveyance of the naked title to the prescription. (609a)
property in favor of the donee.
So, it is a mode of acquisition although in Article 712, we have
It is apparent from the entire context of the deed of donation the original mode and derivative mode of acquisition.
that the donor intended that she should retain the entire
beneficial ownership during her lifetime, but that the naked What is the original mode? There is no prior owner of the
title should irrevocably pass to the donee. It is only thus that property. You are the first owner of the property. How can
all the expressions heretofore discussed can be given full you become the first owner? It could be by occupation, by
effect; and when the donor stated that she would continue to intellectual creation. You compose a song and you have it
retain the "possession, cultivation, harvesting and all other copyrighted. So you are the owner of that creation, it is from
rights and attributes of ownership," she meant only which that song originated.
the dominium utile, not the full ownership. As the Court below
correctly observed, the words "rights and attributes of In derivative mode, there is a previous owner. It is just
ownership" should be construed ejusdem generis with the transferred from one person to another like donation, testate
preceding rights of "possession, cultivation and harvesting" and intestate succession. It is actually a derivative mode
expressly enumerated in the deed. Had the donor meant to because there is previous owner and only it is just transferred.
retain full or absolute ownership she had no need to specify
possession, cultivation and harvesting, since all these Art. 775. In this Title, "decedent" is the general term
rights are embodied in full or absolute ownership; nor would applied to the person whose property is transmitted
she then have excluded the right of free disposition from the through succession, whether or not he left a will. If he
"rights and attributes of ownership" that she reserved for left a will, he is also called the testator. (n)
herself.
If you’re not sure, use the word decedent. It refers to the
(Ma’am: *shares* real life sad stories about donation) person who died with or without a will. But to be more
technical, if he left a will, he is called the testator.
*10-minute break*
Art. 776. The inheritance includes all the property,
JUNE 23, 2014 (SECOND HOUR) rights and obligations of a person which are not
extinguished by his death. (659)
Art. 774. Succession is a mode of acquisition by virtue
of which the property, rights and obligations to the Article 776 defines inheritance. Article 774 defines succession.
extent of the value of the inheritance, of a person are Succession and inheritance are not one and the same thing.
transmitted through his death to another or others Again, when we say succession, we are referring to the mode
either by his will or by operation of law. (n) of acquisition. In inheritance, we are referring to property,
rights and obligations which are transmitted by succession.
These properties, rights and obligations comprise what we call
Ok. So again, as we discussed before,we have the definition of
inheritance.
succession, that under Article 774. So if you’re ask in the bar
exam which is how many years from now to define what is
succession, you can just cite Article 774 which is just easy to
What will be inherited again? Properties, rights and owned by the community, by everyone. So they are considered
obligations which are not extinguished by death. The law outside the commerce of men. They cannot be transferred by
qualified those which are not extinguished by death because succession. They cannot be appropriated.
there are rights and obligations which are extinguished by
death. These are the subjects of succession actually. These are There are certain concepts in labor law or political law which
the properties that can be inherited: properties, rights and also deals with property. In constitutional law, if you are
obligations. deprived of your life, liberty and property without due process
of law. Under the labor code, you cannot be deprived of your
We go first to the properties. (Called student) When you say employment because it is your property right and before you
property, in your law on property, what are the kinds of can be terminated from employment, the employee has to be
property? Personal properties and Real Properties served with twin notice if it is based on just case or a notice if
it is based on authorized cause. Can it be transferred? (No)
When you say personal property, what is a personal Why? For example, you are the CEO of a multinational
property? (Article 417) What is the other term for personal company and you are about to die, can you designate your
property? Movable property daughter or transfer to her by will your position? (No, It is a
purely personal right based on personal qualifications) Take
Can you give us examples of movable properties? (Student note of employment, even though it is considered
answers: clothes that I wear, those capable of being property under labor and constitutional law, they
transferred, and those which are not attached to a particular cannot be considered property under succession which
immovable property) A car, is it personal property? Yes. If it is can be transferred. So whether you are a CEO or a janitor,
personal, it is movable, in fact very movable. Jewelry, you cannot transfer your employment by succession.
furniture, microphone…
How about the human body? (No) So you cannot give to
How about immovable properties? (Article 416) What is your boyfriend your heart as
the other term for immovable properties? Real properties... remembrance niya, para maremind siya of your undying
Usually, these are the subjects of succession meaning they can love? (GR: No but except under Organ Donation Act)
be transmitted by succession.
When you say property again, movable property or
How about intangible properties, what are intangible immovable property even intangibles, incorporeal
properties? (Student answers: Properties which cannot be property, they can be transferred by succession as long
seen or touched) Do they have legal existence? (Yes) Can they as they are licit. They are legal, they are not prohibited, and
be transmitted by succession? (Yes) Can you give examples of they are not outside the commerce of men, not res nullius, not
intangible properties? (Copyright, Invention or composition of res communes. So they can be transferred.
song)Aside from a copyright, can you give us another example
of intangible property? What’s your undergrad? (Accountancy) Insofar as the human body is concerned, general rule also,
Accountancy man diayka, what are other examples of the human body or organ cannot be transmitted by
intangible property? (Goodwill, franchise, patents) Sothose succession because the human body is incapable of
are examples of properties which cannot be seen, but has legal appropriation. It cannot be a property under the law on
existence and therefore, they are considered properties property. The exception is under the Organ Donation Act
transmissible by succession. or RA 7170. Although under Organ Donation Act, you can
transfer the organs or parts of your body by will or deeds of
Insofar as properties are concerned, they should not be illegal. donation. When you say by will, it is what you call a legacy if it
They should not be outside the commerce of men. They should involves a personal property. We will just discuss insofar as the
not be prohibited. They should be licit. When the property is legacy of an organ of part of the human body. What are the
considered illegal or prohibited, can that property be important provisions of RA 7170 that you have to remember?
transmitted by succession? No because again one important, it
should be licit. To be licit, as I already mentioned, it should not Under Section 6, who may become legatees or donees?
be prohibited, it should not be outside the commerce of men,
it should be legal.
Section 6. Persons Who May Become Legatees or
Donees. – The following persons may become legatees or
How about a property called res nullius? (No) What do
donees of human bodies or parts thereof for any of the
you mean by res nullius? (Those which do not belong to
purposes stated hereunder:
anyone) Example? (Stars) So you cannot provide in your will
that I hereby give to you the sun so could have energy
etcetera. How about res communes, can they be (a) Any hospital, physician or surgeon - For medical or dental
transmitted by succession? (No) because they belong to education, research, advancement of medical or dental
everyone and there is no particular owner. Can you give us an science, therapy or transplantation;
example which is classified as res communes? (Sea) What
else? The city hall, can you give that by succession? (No) The
bolton bridge, bangkerohan bridge etcetera, those which are
(b) Any accredited medical or dental school, college or under legacies, you can actually devise or bequeath a
university - For education, research, advancement of medical property which is not owned by you as long as after
or dental science, or therapy; you death, that will be acquired by your estate and to
be given to the devisee. GR you cannot devise or bequeath
what you do not own. So the property should be owned by the
(c) Any organ bank storage facility - For medical or dental
decedent.
education, research, therapy, or transplantation; and
We now go to rights. Rights may be transmitted by

(d) Any specified individual - For therapy or transplantation
succession also. GR when it comes to rights, patrimonial
needed by him.
rights are transmissible. What do we mean by patrimonial
rights? Those rights which relate to property… What are these
So remember, these are the persons or specific institutions rights which can be transmitted?
which can be recipients of organs and their specific purposes.
It cannot be for sentimental reasons. It has to be for the
Rights arising out of a contract like when you enter
reason mentioned by the law.
into a contract of lease. You are the lessee and there is also
the lessor. As lessee, you have rights in that contract. What
How do you effect a legacy of a human body? Under section are those rights? That as long as I pay my rent I can remain in
8(A)… peaceful possession and occupation of the property. If you are
the lessor, your right is to collect the rentals. Those rights even
Section 8. Manner of Executing a Legacy. – if the lessee of the lessor dies, the rights are transmitted. So
the lessee for example dies, the lessor cannot say Pataynaman
to si lessee. Hawanamodiha kay dilikamoakongkakontrata. No.
(a) Legacy of all or part of the human body under Section 3
The heirs of the lessee inherit the rights of the lessee. So they
hereof may be made by will. The legacy becomes effective
can continue paying the rest for as long as di pa taposang
upon the death of the testator without waiting for probate of
contract of lease. They can insist on remaining in the property.
the will. If the will is not probated, or if it is declared invalid for
Same thing when the lessor dies, the heirs of the lessor may
testamentary purposes, the legacy, to the extent that it was
continue to collect the rentals.
executed in good faith, is nevertheless valid and effective.
Right of insurance – The right of insurance can be

The legacy becomes effective upon the death of the transmitted by succession as illustrated by Grepa Life v CA. In
testator. So dilipwedenabuhi pa siya, kuhaannanimosyaug this particular case, there is a group life insurance entered into
heart. Di ba? So, upon the death of the person… by Grepa Life and DBP. Why is there such a contract of life
insurance? Because DBP lends it money to those who would
Without waiting for probate of the will… Because when like to avail of housing loan. So, katongmganagloan, as
we go through testamentary succession specifically Article 838, security for their loan, (?) Mangutangsilasa DBP for their houe
probate is actually mandatory. When a person dies with a will, construction and promise to pay the loan after a certain period
the will has to be probated. But here, even without waiting for of time and also as security, the house can be mortaged to
probate, effective nasiya. Nganokaya? Of course, it is because DBP. Additional security is that there is a group life insurance,
it for therapy, transplantation. Kabaloba moa ng probate, nubo that DBP would insure the lives of borrowers, mortgagors of
pa kayo na 3 years siguro. So kungmaghatagkaug heart or DBP such that if the borrower-mortgagor dies prior to payment
kidney, magprobate pa ka, mamataynaangimonghatagan. So of loan, Grepa Life would have to pay DBP para upon the debt
wala nay probate nakinahanglan before maeffectang legacy. of borrower-mortgagor, extinguished nasya. That’s what we
call mortgage redemption insurance which is (?) So here, one
Now if the will is not probated or declared invalid for insured was Dr. Leuterio because he applied for life insurance
testamentary purposes… because insofar as we are plan being a housing debtor of DBP. Prior tp paying his loan,
concerned there are formalities and the law is very strict and Dr. Leuterio died and his heirs insisted that Dr. Leuterio is a
the process is very complicated. Example, nakalimotka (?) and member of the group life insurance plan,Grepa Life should pay
the will turns out to be void, what will happen now to heart or DBP because that is the contract between and if that happens,
kidney? The law says that it is still valid and effective to DBP should no longer collect from the heirs of Dr. Leuterio. But
the extent that it was executed in good faith. For as long here, Grepa Life did not pay. So the heirs of Dr. Leuterio filed
as in good faith, valid and effective gihaponangimuhang a case against Grepa Life. One contention of life is that in the
legacy. first place, the contract is between Grepa Life and DBP and if
there was a person insured, that is Dr. Leuterio not his children
nor his wife. The heirs had no right to file action against Grepa
Those are the relevant provisions of Organ Donation Act.
Life for recovery of insurance proceeds. That was the
contention of Grepa Life. Is that correct? The SC said NO.
Going back property can be transmitted by succession, when
you say property; you are referring to the property owned by
And since a policy of insurance upon life or health may pass by
the decedent himself. It must be owned by the decedent
transfer, will or succession to any person, whether he has an
not by another person. But there is an exception to that
insurable interest or not, and such person may recover it buyer namatayna.Iyanalangmgaanakangnabilin. What are the
whatever the insured might have recovered,[14] the widow of rights of the children? Aside from filing an action for specific
the decedent Dr. Leuterio may file the suit against the insurer, performance, they can file an action to compel the seller to
Grepalife. reduce the deed of sale into a public document.
Because being an heir of Dr. Leuterio, whatever rights Dr. Action to recover possession (AttyEspejo: Nasagolnisya.
Leuterio had over the insurance were transmitted to his heirs. Walanisyaapil?)
Another would be an action for forcible entry or unlawful The right to Civil liability. If you are the victim and you
detainer. So the right of file an action of forcible entry and were hit by a speedy truck. Nainjuredka, You sustained injuries
unlawful detainer. There is an intruder or usurper of your and incurred expense. Pwedekamakarecoversanakabangga but
property and before you could file the action you died, your if before kanakasingilnamatayka, your children can file the
heirs can file the action. action to recover damages.
An action against or by the heirs to compel the execution of a So these are the examples of patrimonial rights which are
public document under 1357 of the Civil Code. transmitted by succession.
Art. 1357. If the law requires a document or other There are also patrimonial rights which cannot be transmitted
special form, as in the acts and contracts enumerated by succession. Even if theoretically they relate to property,
in the following article, the contracting parties may they cannot be transmitted by succession. What are these
compel each other to observe that form, once the rights?
contract has been perfected. This right may be
exercised simultaneously with the action upon the When it is provided in the contract itself that it is not
contract. (1279a) transmissible. The stipulation will govern. Example: Contract
of Lease. Ordinarily, the rights under such contract is
Art. 1358. The following must appear in a public transmissible but there is no prohibition if the lessor or lessee
document: would provide in the contract that in case either party dies, the
rights of the lessor and the lessee are extinguished. So upon
(1) Acts and contracts which have for their object the the death of either the lessor or lessee, there is no
creation, transmission, modification or extinguishment transmission of rights by stipulation.
of real rights over immovable property; sales of real
property or of an interest therein a governed by
Usufruct. Under Article 603 of the New Civil Code, the GR is
Articles 1403, No. 2, and 1405;
in case of death of either parties in the usufruct, the usufruct
will be extinguished. Although again there is no provision if the
(2) The cession, repudiation or renunciation of
parties will provide that the usufruct will continue after the
hereditary rights or of those of the conjugal
death. But the GR is death extinguished a usufruct unless
partnership of gains;
otherwise provided.
(3) The power to administer property, or any other
power which has for its object an act appearing or Agency under Article 1919 of the Civil Code. Why?
which should appear in a public document, or should Because agency is primarily founded on trust and confidence
prejudice a third person; between the principal and agent. Death of either the principal
or agent will extinguish the agency. But again, that is the GR
(4) The cession of actions or rights proceeding from an because there are cases where agency is not extinguished by
act appearing in a public document. death, that is if the agency is coupled with interest. Like for
example, I am the borrower. I borrowed 1 million from the
creditor. And as a security for the obligation, I executed also a
Actually, the requirement there of execution of document is for mortgage contract. Under the mortgage contract, I authorize
convenience, not for validity, not for enforceability. So for the creditor-mortgagee that in case of my default, he can
example, yoe entered into a contract of sale. A deed of sale extra-judicially foreclose on the mortgage. That clause in the
over a land and the sale is made in a handwritten private mortgage contract giving the creditor-mortgagee the right to
document, is it valid? Is it enforceable? YES. Even under the extra-judicially foreclose the mortgage is a special power of
statute of frauds, ang requirement lang is that it has to be in attorney given to the creditor-mortgagee. What if debtor dies
writing. And I said, handwritten. Enforceable sya. Is it valid? and then default naangutang? Can the creditor-mortgagee still
Yes. But if you are the buyer and you would like the title of the extra-judicially the mortgage? Can you say nawalanakase the
property to be transferred into your name, you cannot go to death of a borrower extinguished the agency? NO because that
the Register of Deeds and say “Ma’am, transfer is an example of an agency coupled with an interest that is not
nakosaakongpangalan. (?) Ara ma’am o, pinakatay pa judsya extinguished by death of either party. That is an exception. GR
ma’am o.” Dili nasyadawatonsa ROD (?) Angproblemana is the however agency is extinguished by death.
seller will now be (?) to execute the deed of sale and then ang
Now, under the law on tenancy (RA 3844).Na bamoy certain age like 60 buhi pa ka, after that tagaannakaug
elective on agrarian law?Wala no? You still have to know annuity. Kung namataynaka, walanapudang annuity kaya ng
because a lot of cases involve that law. For example, (?) If it is basis sa annuity is your survival or your existence. Your heirs
really agricultural leasehold tenancy, so nagatanomsya, cannot claim or insist to continue receiving the annuity. It is
nagacultivateug plants and then every harvest extinguished by death. Ang insurance kay
nagahakotsya.Iyaha 25%, imoha 75%. So the tenant cannot makuhasyapagnamatay.
be ejected from the property and if he dies, is the tenancy
extinguished? Dili syamaextinguish. The tenancy is transferred Right to revoke a donation by reason of ingratitude. If
to the heirs but qualified because the heirs has to have to you are the donor and you have the right to revoke the
qualification of a tenant and has to willing and able to cultivate donation because the donee has committed an act of
the land. And isalangangpwedemagsucceed. So if you have a ingratitude but before revoking the donation you died, walana.
tenant and naasyay dose naanak, it does not mean na (?) No. The heirs cannot exercise that right. They can no longer
Magpililangsailaha. Perokungwalasyang successor, in that case, revoke the donation. So that right is purely personal and
it is extinguished. When it comes to tenancy, pwedesya cannot be transmitted by succession.
transmitted. Pwedepudsyamaextinguish.
Of course again, employment in succession is a purely
So those are examples of rights that are extinguished by personal right which cannot be transmitted. A public
death. office cannot be transmitted by succession because it is a
public trust, not a right.
Purely personal rights cannot be transmitted even by
succession, even if nay will. They cannot be transmitted. They Now we go to obligations. What is the GR with respect to
are extinguished by death. What are these purely personal obligations? Obligations in general are transmissible. So
rights extinguished by death? if inyohang parents nagkautang, transmissible nasyasainyoha.
You can actually be held liable but there is a caveat: only up
Parental Authority. The law provides who has substitute to the extent of the value of the inheritance. So if you
parental authority upon death or absence of the parents but it inherited nothing and there are debts, you cannot be
is provided for by law. Dili sya by succession. compelled to pay anything because up to the value lang of the
inheritance. If zero imong inheritance, zero pudimongibayad. If
Marital rights relating to persons and property. So if you inherited a property worth 10 million, naasilayutangna 15
husband or the wife dies, (?) cannot by will or by succession million. Only up to the extent of the inheritance, so if 10K
transfer his marital rights to his brother or sister. Extinguished hantoddadtolangkutob (Bisaya Grammar Check Pls) Sa 5
siya by death.Either relating to the property or person of million, kinsamubayadana? Walana. (?) The heirs cannot be
spouse extinguished by death. made personally liable to heirs of the decedent.
Action for legal separation – Of course, by the death of Although if you still remember in obligations and contracts,
katongnagfile, extinguished naang marriage. halimbawa your parents owned 15M and then the heirs
inherited 10M but the heirs still pay 15M voluntarily, they
cannot recover that payment under the principle of natural
Right to receive support will not be transmitted by
obligations. But again, dilisilamacompel to pay but if
succession .
mubayadsila voluntarily, they can retain what was voluntarily
surrendered or paid.
The right to vote cannot also be transmitted by succession.
So that’s for obligations, only up to the value of the
The right to become a partner in a partnership. Now inheritance.
remember that because in a partnership, it is based on mutual
trust and confidence. So pagmamatayang is ka partner,
So, what are examples of these obligations that are
atongnapatayna partner is not succeeded by his wife or
transmitted by succession?
children to the partnership. It is a ground for dissolution of a
partnership.
Debts – Can they be transmitted by succession? Actually,
duwaning view with respect to debts. The first view is not
Guardianship. Upon the death of the guardian, he cannot
transmitted. Why? Because even before the properties are
transmit to his heirs his rights to become a guardian. It is
distributed to the heirs, the debts would have to be paid first.
extinguished by death.
So it is the estate which pays the debt, not the heirs. That is
the first view.
The right to annuity. Do not confuse annuity from insurance.
In annuity under Article 2027, it is founded upon the existence
The second view is that the debts are transmitted to the heirs.
of a person, upon whose existence the annuity is given. Like
Why? Because even if the debts are paid first prior to
for example, magbayadkaug premium and when you reach a
contribution but ultimately, the debts carry the burden of the
debt because by reason of the payment the debt, their residual the provision of our Rules of Court that
shares are diminished. So ultimately the heirs pay the debt or money debts of a deceased must be
shoulder the debt. The debts are transmitted. That is the more liquidated and paid from his estate before
popular and accepted view, that debts are transmitted but only the residue is distributed among said heirs
up to the value of the inheritance. (Rule 89). The reason is that whatever
payment is thus made from the state is
We have here the case of Liu v Loy. (Recitation) ultimately a payment by the heirs or
distributees, since the amount of the paid
claim in fact diminishes or reduces the shares
Note: I included only the questions; Read the case to know the
that the heirs would have been entitled to
answers
receive.
When was the contract to sell entered into? Kinsa man nag-
Under our law, therefore, the general rule is
enter into that contract? And the contract of sale?Asanamansi
that a party's contractual rights and
Liu during that time?Buhi pa basi Liu that time or patayna? So
obligations are transmissible to the
what happened? Which should be respected, the contract to
successors.
sell or the contract of sale and Why? In a contract to sell, is
there already a sale? So what is the nature of a contract to
sell? The rule is a consequence of the progressive
"depersonalization" of patrimonial rights and duties that, as
observed by Victorio Polacco has characterized the history of
In that contract, there is still no sale because of the condition
these institutions. From the Roman concept of a relation from
that purchase price must be fully paid first. And when that
person to person, the obligation has evolved into a relation
obligation is fulfilled, the obligation of the seller to convey
from patrimony to patrimony with the persons occupying only
arises. So he will now execute a contract of sale. In a contract
a representative position, barring those rare cases where the
of sale, there is already a sale. But as we have learned before,
obligation is strictly personal, i.e., is contracted intuitu
even if it is just a contract to sell, there is already an obligation
personae, in consideration of its performance by a specific
on the part of the seller that is once the buyer fulfils the
person and by no other.
condition which is the payment of purchase price, the
obligation to convey now arises. That obligation when he died
was transmitted to his heirs. The heirs are now bound by that Petitioners being the heirs of the late Rosendo Alvarez, they
obligation. They cannot just disregard the obligation and enter cannot escape the legal consequences of their father's
into another transaction over the same property even if it was transaction, which gave rise to the present claim for damages.
a contract to sell. So that is the case of Liu v Loy That petitioners did not inherit the property involved herein is
of no moment because by legal fiction, the monetary
equivalent thereof devolved into the mass of their father's
JUNE 30, 2014
hereditary estate, and we have ruled that the hereditary assets
are always liable in their totality for the payment of the debts
Liu v. Loy (recap) - In that case, based on the principle that of the estate.
obligations are transmitted. The obligation incurred by the
decedent during his lifetime in so far the contract to sell is
It must, however, be made clear that petitioners are liable only
concerned was transmitted to the heirs. The heirs being bound
to the extent of the value of their inheritance.
by that same obligation could not validly enter into another
contract of sale over the same property which was the subject
of a prior contract to sell. Atty. Yangyang-Espejo: In this case, the SC discussed the
concept of progressive "depersonalization" of patrimonial rights
and duties, meaning when it comes to properties the rule here
ALVAREZ v. IAC – This involved a specific property.
is when the property is transferred, the obligation is also
transferred because before the obligation is attached to the
Petitioners further contend that the liability arising from the person when the person dies his obligations are extinguished
sale of Lots No. 773-A and 773-B made by Rosendo Alvarez to but here the person merely is a representative. So from
Dr. Rodolfo Siason should be the sole liability of the late patrimony to patrimony, if the person dies he left properties
Rosendo Alvarez or of his estate, after his death. whatever obligations are attached to that property are
inherited by the heirs.
Such contention is untenable for it overlooks the doctrine
obtaining in this jurisdiction on the general transmissibility of But in this case, before the death of Alvarez the property was
the rights and obligations of the deceased to his legitimate already sold by him so in effect the property was no longer in
children and heirs. his estate when he died. How can the heirs be made liable?
Can we not say that the buyer should shoulder the obligation
The binding effect of contracts upon the since he is now the present possessor and holder of the
heirs of the deceased party is not altered by property? TAKE NOTE what the SC said here: It is of no
moment that the petitioners did not inherit the property. Why?
Because by legal fiction, the monetary equivalent thereof when the donation is inofficious, it may be reduced so that the
devolved into the mass of their father's hereditary estate. legitime may not be prejudiced but only after the death of the
Meaning, even if the land is no longer at the time of his death parents.
because prior to his death he sold such but when he sold the
land, he got money in exchange and the money fall part of his During the life of the decedent, you cannot question any
estate and that money is part also of the inheritance obtained disposition made by him. You are not in the position, you have
by the heirs of Alvarez. Having inherited the monetary no personality to question because you might predecease your
equivalent of that property then they are liable also to return parents and there is nothing for you to inherit in the first place.
the property or its monetary equivalent.
FELIPE v. HEIRS OF ALDON
General Rule in Obligations: They are transmissible. Debts
they are transmissible.
Two questions come to mind, namely: (1) Have the petitioners
acquired the lands by acquisitive prescription? (2) Is the right
What are the exceptions, if any? of action of Sofia and Salvador Aldon barred by the statute of
limitations?
1. It can be made intransmissible by stipulation of the
parties. Just like what I explained before in a contract Anent the first question, We quote with approval the following
of lease, there are rights and obligations arising in a statement of the Court of Appeals:
contract of lease so ordinarily if either the lessor or
lessee dies the obligations are passed on to their
respective heirs but they can declare or stipulate in
xxx Now then, even if we were to consider
the contract that in case of death of either party, the
appellees' possession in bad faith as a
contract is extinguished. There is no prohibition to
possession in the concept of owners, this
that.
possession at the earliest started in 1951,
2. Purely personal obligation. Again, marital obligations
hence the period for extraordinary
this cannot be transmitted. Obligation to support
prescription (30 years) had not yet lapsed
cannot also be transmitted. Obligation to contract of
when the present action was instituted on
piece of work but of course when there is already
April 26, 1976.
downpayment then the heirs can be made to return
the downpayment when it is not commensurate to As to the second question, the children's cause of action
the work done. They have the obligation to pay the accrued from the death of their father in 1959 and they
downpayment. had thirty (30) years to institute it (Art. 1141, Civil
Code.) They filed action in 1976 which is well within
Criminal liability is a purely personal obligation. the period.
Obligation to pay taxes – claim is against the estate.
Atty. Yangyang-Espejo: For the purpose of prescription, you
*** Only to the extent of the value of the inheritance can the start counting from the time of death of the decedent. When
heirs be made liable. the heirs’ right to question be vested.
Article 777. The rights to the succession are transmitted from Locsin vs CA – Could these nephews and nieces question the
the moment of the death of the decedent. (657a) transfers, donations, assignments that Dona Catalina made
during her lifetime? According to these nephews and nieces, it
reduced their legal shares.
Actually, the proper wording to be used here “The rights to the
succession are made effective from the moment of the death
of the decedent”. The SC said NO. These nephews and nieces could not validly
question the donations, transfers, assignments made by Dona
Catalina during her lifetime. Why? Because as long as she was
Before the death of the decedent do the heirs have any right
still alive she was the absolute owner of these properties. She
to the estate? NO. So prior to the death of the decedent his
could dispose, sell, donate, assign etc so when she died these
perspective heirs only have an expectancy or inchoate right.
properties transferred by her during her lifetime no longer
form part of her estate. These properties were not inherited by
For example: your parents during their lifetime they have her legal heirs and beside these nephews and nieces are not
several properties and now they are selling all their properties, compulsory heirs of the decedent. They have no legitime to be
can you question? (selling for insufficient consideration) NO. prejudiced. Being merely legal heirs they could not question
You cannot question because you only have an inchoate right. the donations for being allegedly inofficous. Inofficiousness
would pertain only to donations which would prejudice the
How about if donated? Can you question the donations? NO. legitimes of the compulsory heirs. They are not compulsory
Even if it would prejudice your legitime? During their lifetime, heirs, they have no legitimes to be prejudiced.
you cannot question. However there is this Rule on Collation –
All that the respondents had was an expectancy that in nowise opening his succession till after an absence of ten years. If he
restricted her freedom to dispose of even her entire estate disappeared after the age of seventy-five years, an absence of
subject only to the limitation set forth in Art. 750, Civil Code. five years shall be sufficient in order that his succession may
be opened. (n)
So whatever properties that remain in her estate at the time of
her death those were the only properties that (inaudible) to For the purpose of opening his succession meaning settling his
her heirs. No more, no less. estate, transferring his properties, rights and obligations to his
heirs, the person is considered dead when he is absent for a
Let’s go back to Article 777. The operative word there is period of 10 years. Not just absent that he just went abroad
DEATH. Prior to death, expectancy or inchoate right. Upon the and you are chatting, it must be you don’t whether he is dead
death, the rights are made effective. They are already vested. or alive. Totally no idea. So after 10years for the purpose of
opening the succession, he can be considered dead or if he
disappeared after the age of 75, an absence of 5 years would
What is DEATH? For the purpose of Succession, you have to
be sufficient.
know.
(b) EXTRAORDINARY or QUALIFIED PRESUMPTION

2 kinds of death:
Article 391. The following shall be presumed dead for all

1 – Actual death (literal)
purposes, including the division of the estate among the heirs:
According to Organ Donation Act of 1991, Death (actual death)

(1) A person on board a vessel lost during a sea
defined it is the irreversible cessation of circulatory and
voyage, or an aeroplane which is missing, who has
respiratory functions, or the irreversible cessation of all
not been heard of for four years since the loss of the
functions of the entire brain including the brain stem. A person
vessel or aeroplane;
shall be medically or legally dead, if either:
(2) A person in the armed forces who has taken part

1. In the opinion of the attending physician, based on the
in war, and has been missing for four years;
acceptable standards of medical practice, there is an absence
of natural respiratory and cardiac functions, and
attempts of resuscitation would not be successful in restoring (3) A person who has been in danger of death under
those functions or; other circumstances and his existence has not been
known for four years. (n)
2. In the opinion of the consulting physician, concurrently by
the attending physician, that of the basis of the acceptable For the purpose of opening the succession, we need 4 years.
standards of medical practice, there is a cessation of all brain
functions and considering the absence of such functions What would be those circumstances where there is danger of
further attempts of resuscitation, or continuous death? Fire breakout, volcanic eruption, conflagration,
support and maintenance would not be successful in typhoon, flood or other natural calamities.
restoring such function.
When do we start counting the moment of death in
** Rights and obligations can now be transmitted to his heirs Ordinary Presumption?
by succession. When there is actual death.
A was missing in January 1, 1990. So you count for 10 years,
2 – Presumptive death: for all intents and purposes, the January 1, 2000, there is already ordinary presumption. When
person is already considered dead and therefore succession do we consider him dead? In the year 1990 or in the year
can be opened already. There can be transmission of his 2000? In the year 2000 – after the lapse of 10 years.
properties, rights and obligations by succession if he is already
presumed dead.
How about in extraordinary presumption? *volcanic eruption*
1990 you count for 4 years so 1994. When do we consider him
(a) ORDINARY PRESUMPTION dead? He is considered dead from the time of the incident so
year 1990. Why? It is the time when there is danger of death,
Article 390. After an absence of seven years, it being you cannot presume na he was running away from the lava
unknown whether or not the absentee still lives, he shall be nacover na jud siya sa lava then after 4 years naghihingalo
presumed dead for all purposes, except for those of siya didto sa ilalom sa volcano before you consider him dead.
succession. Dili siya ing.ana ang presumption. Kato lang to confirm lang.
wala jud siya nakasurvive katong 1990.
The absentee shall not be presumed dead for the purpose of

REAPPEARANCE – presumption of death cannot prevail property is concerned such that any rights or obligations
because it is merely a disputable/rebuttable presumption. thereto became binding and enforceable upon them. Again,
pursuant to Article 777 of the new Civil Code, the rights of
EASTERN v. LUCERO succession are transmitted from the moment of death of the
decedent. So it is not when the creditors are paid that heirs
Presumption of death would not apply. You need not wait for 4 become the owners of the property. It is from the moment of
years before he can be presumed dead. death.
It is undisputed that on February 16, 1980, the Company In the case of Emnace v Court of Appeals… (Recitation)
received three (3) radio messages from Capt. Lucero on board
the M/V Eastern Minicon the last of which, received at 9:50 What happened in this case?
p.m. of that day, was a call for immediate assistance in view of
the existing "danger": "sea water was entering the hatch"; the What are these rights which the wife inherited?
vessel "was listing 50 to 60 degrees port," and they were
"preparing to abandon the ship any time.' After this message, Remember, as we have discussed before, can a right to be a
nothing more has been heard from the vessel or its crew until
partner be transmitted? Why? That trust and confidence
the present time.
enjoyed by the partner, if he dies, may not necessarily be
enjoyed by the heirs of the deceased partner. That is why also
There is thus enough evidence to show the circumstances
attending the loss and disappearance of the M/V Eastern death of a partner is a ground for the dissolution of a
Minicon and its crew. The foregoing facts, quite logically. are partnership. But here, we are not talking about the right to be
sufficient to lead Us to a moral certainty that the vessel had a partner but the right to compel the delivery of his share in
sunk and that the persons aboard had perished with it. upon the assets of the partnership as well as for the accounting and
this premise, the rule on presumption of death under Article liquidation. That right can be transmitted to the heirs.
391 (1) of the Civil Code must yield to the rule of
preponderance of evidence. As this Court said in Joaquin vs.
Navarro 4 "Where there are facts, known or knowable, from
which a rational conclusion can be made, the presumption What do you mean by an administratrix or executrix? Actually,
does not step in, and the rule of preponderance of evidence
there is also a provision in succession also discussed in special
controls."
proceedings. So when a person dies and for the meantime,
there is no yet dissolution of property, … there is a need for
Atty. Yangyang-Espejo: The rule on presumption
should yield on the rule on preponderance of evidence. the appointment of an executor or … one who takes charge of
It is already very clear that Capt. Lucero died in the the estate, pays the debts of the estate, preserves the
incident so there is no point in waiting for 4 years properties of the estate. When there is a will and an
before we presumed that he is already dead. There are administrator in appointed in that will, he is called an executor,
facts known or knowable from which the death can be if female, an executrix. If there is a will and there is no
inferred. On the other hand, even if the 4 year period
administrator appointed in the will, so you have to pray before
had already lapsed and the presumption had already
the court to be appointed as one. So that is what we call an
set in but facts would now arise or that the person has
already reappeared then the rule on presumption administrator with a will annexed or administratrix with a will
should be set aside. annexed. But if there is no will at all, so intestate and again
there is a need to appoint an administrator, it is simply called
(SECOND HOUR) an administrator or administratrix.
Again, let’s go back. During the lifetime of the decedent, the So in this particular case, an administrator also, when there is
rights of the heir are merely inchoate or expectancy. Now after suit to be instituted, the suit has to be instituted in the name
the death or upon the death of the decedent, what are the of the administrator, not just by any of the heirs. But in this
rights of the heirs? When will there be transmission by case, because there is still no appointed executrix or
succession? So we have case which illustrate. In the case of administratrix, then any of the heirs including the surviving
Coronel v Court of Appeals, the heirs claim that even after the spouse can file the action for and in behalf of the estate to
death of the decedent, they were not yet the absolute owners compel the liquidation, accounting and delivery of assets.
of the property because the creditors were not yet paid.
According to them, … once the property is already delivered to Now in the case of Rioferio v Court of Appeals, there was
us, that would be time we become the owners of the property. already a proceeding for the settlement of the estate and there
NO. So the SC said that petitioners, at the point their father was already a prayer for one of the heirs to be appointed as
took his last breath, step into their father’s shoes insofar as the administrator. But naay proceeding, pending nasya, the
question is: If there is already a proceeding for the death of the decedent. Even prior to executing the affidavit of
appointment of an administrator, naa nay na appoint, can any self-adjudication, she succeeded to the property. She can sell
of the heirs file actions for and in behalf of the estate. the property because by succession, she became the owner of
the property. But of course, for the RoD, the transfer of the
In the case of Tabanao (referring to Emnaces), wala pay property from the name of the parents to the name of the
proceeding at all. So the heirs may file the action for and in buyer then the heirs has to execute an affidavit of self-
behalf of the estate. Here naa nay proceeding, adjudication para matransfer but not to make the transfer valid
ginahulatnalangkinsamaappoint. Can anyone of the heirs file but just as a formality.
an action for and in behalf of the estate? YES. Because if we
disallow them to file an action, the who would file? So SC said In the case of Gebero v IAC, even if there is no yet extra-
pending the filing of administration proceedings, the heirs have judicial partition, an heir can already sell his share in the
the legal personality to bring suit in behalf of the estate of the estate. So, ABCD are heirs of the decedent. A can already sell
decedent in accordance with the provisions of 777 of the NCC. his hereditary share even before extra-judicial partition. And
Even if administration proceedings have already been once there is already an extra-judicial partition, that portion
commenced, the heirs may still bring the suit if an allocated to A is the one which is deemed sold by him. So that
administrator has not yet been appointed. So this is in is the rule, even prior to extra-judicial partition. But again,
accordance with rules on special proceedings. This court prior to extra-judicial partition, … specific portion of the estate,
recognized the legal standing of the heirs to represent the that sale would be void. Why? Prior to partition you cannot
rights and properties of the estate under administration specifically say that this my part, this my share. All of you are
pending the appointment of an administrator. Now, what if co-owners over the property. Each and every portion of the
there is already an appointed administrator or executor for the property is co-owned by everyone of you. You cannot say
estate. Can anyone of the heirs just file the action for and in naikaw lang. But in case, upon partition, …saimoha then that
behalf of the estate? Naa nay naappoint. The rule is the suit sale becomes effective. So that is insofar as extra-judicial
should be filed by the executor or administrator. partition is concerned.
Siyalangangmagfile. Cant there be instances where the heirs
can still file despite the presence of an appointed executor or In this particular case, (looking for whiteboard marker and
administrator? YES. This has also been discussed in the case of draws) this is the parcel of land. One half owned by the
Rioferio. There are actually two exceptions. (1) If the mother from the death of their father and one half went to the
administrator or executor is unwilling or … to bring suit. So in 6 children. Subsequently, the mother also died, can the
that case, the heirs can file. Or (2) If the administrator is mother… divided among the 6 children. Upon the death of the
alleged to have participated in the act complained of and he is father, no extra-judicial partition is made. Upon the death of
made a part defendant. Because here of course, you would not the mother, still no extra-judicial partition is made. And then
expect the executor of administrator to file the action against subsequently, A entered in to a contract of sale with X. He
himself. So the other heirs can file the action. sold his share to X. X also sold his share to Del Monte. Now
after the sale, the heirs eventually executed an extra-judicial
So that is insofar as the right of heirs to bring actions for and partition. Now, Del Monte filed an action to quiet title because
in behalf of the estate is concerned. according to Del Monte, this extra-judicial partition affects the
sale made by A to X and X to Del Monte. Because according to
In the case of Henares v CA, the SC said there is no law which the other heirs, this time pataynasi A, according to the heirs
requires a solo heir to execute an affidavit of adjudication and the portion which was sold to Del Monte by A is only this
… of the title of the predecessor and the issuance of the title portion, the portion originally belonging to A not including the
to her name and to the names of the co-owner in order to portion which A inherited from his mother because again in the
transfer the property to her or to protect her rights therein. deed of sale which A executed in favor of X, it was not
The rights to her favor transfer took place ipso jure upon the mentioned that the mother already died. As they reiterated, it
death of the decedent. Meaning, example you are the only merely included … Is that correct? Is the deed of sale valid
heir. Do you need to file a case or anything at all so that the when it was made by A prior to the day of the extrajudicial
property may be transmitted to you? Actually, you can just partition? So as to WON the sale is valid, yes it is valid because
execute an affidavit of self-adjudication declaring that you are pursuant to 777, the rights to succession are made effective
the sole heir, the decedent died without a will, there are no from the moment of death. So from the moment of death of
debts. So by virtue of that, you can already cause the transfer the mother, A already acquired his share to his mother’s
of ownership of the property to your name. But the transfer estate. He became the owner of that share and therefore, he
here happens not at the time the heir executes the affidavit of could sell his share even prior to partition. So that is the first
self-adjudication. The transfer here happens at the time of issue.
The second is WON the sale was limited only to A’s original end, they both died but whoever died ahead of the other, that
share in the other half. Did that include his inheritance from would make a difference. So whoever alleges that one died
his mother? The SC YES because when A sold his share over ahead of the other, he has to prove the same. In the absence
the particular lot, he already inherited the portion which of proof then it is presumed that they died at the same time
previously belonged to his mothers. So unless, he would and there will be no succession between the two of them.
expressly exclude that in the deed of sale, all his share as of Whatever properties left by the father will not be inherited by
the time when he made the sale are deemed included because the son.Whatever properties left by the son will not be
he already has the right to dispose of those shares. It is not inherited by the father.Walay succession and please remember
only limited to the ½ portion but also to his share in the other this because this will also matter when we go to the concept of
half which he inherited from his mother. That’s in the case of reservatroncal which we will discuss under Article 892.
Gebero(?) So even without an extrajudicial partition, even if
the sale did not mention the death of his mother… We have no rule on survivorship under RoC. …Not for the
purpose of succession ha? Halimbawaanglolo 80, angapo 15
In the case of Lorenzo v Posadas, transmission of … is passed under the rules, considered
upon the time of the predecessor’s death notwithstanding the nanaunapatayanglolokaysasaiyanhangapo considering his
suspension of the actual possession or … of the estate by the advanced age, he would not have survived that accident. But
beneficiary. So the … is measured by value of the property for the purpose of succession, we do not have that rule.
transmitted from the time of death regardless of it appreciation
or depreciation. So, value at time of death of the decedent… Again, it has to be proved who died ahead of the other. In the
absence of proof, they shall be considered to have died at the
Going back to our presumptions, we have also under same time.
presumption under the Rules of Court regarding death under
Rule 131 section 3(k)(k). Because under the RoC, in your Again, remember ha? Death is the operative act which
evidence, there are presumptions of survivorship. Like transfers the property by succession. Without death, there can
kungnaaynamatay, duwakabuok, nagkuyogsilatapos they are be no transfer of property by succession. That is the GR.
to succeed each other, kinsabaang deemed nanaunanamatay? Although we have a very small exception, a single exception:
Kato bang masbata o kato bang mas tigulang? Rules on the concept of freak succession. Freak bakanang weird,
survivorship but under section 3(k)(k), it says that if there is a strange What is this freak succession all about? This is a case
doubt as between two or more persons who are called to of succession which takes place without the triggering effect of
succeed each other as to which of them died first, whoever death. No death, that is why it’s freak. This … delivery of a
alleges the death of one prior to the other shall prove the presumptive legitime prior to the death o0f the person who is
same. In the absence of proof, they shall be considered to supposed to be such. … Annulment, Declaration of Nullity of
have died at the same time. So we are talking here of two or Marriage. If you can still remember in your persons and family
more persons who are called to succeed each other. So for relations, part of the decree of annulment or declaration of
example in an incident, there is the father and the son. So for nullity is the delivery of the presumptive legitimes of the
example, the father already 70 years old and then son was just children. Why? To protect the children because in case of
15 years old, they died together in the accident. So if you dissolution which happens in annulment or declaration of
allege that the son died ahead of the father or the father died nullity, the parents can already remarry. If they remarry, their
ahead of the son, it is for the one who alleges to prove that properties will be merged again with the properties of their
the father died first of the son died first. Nganokinahanglan future spouses. So here the law in order to protect the children
man? Unsay relevance? Namatay man sila so would it matter? demands that once the marriage is dissolved, you have to give
It would matter. Why? Because for example, the son married to the children their presumptive legitime. … A computation of
siya. Assuming the father died ahead of the son, so what what would probably be your legitime if the parents have died.
would happen? The father transferred properties by succession So even if without death, there is already delivery of
to the son and the son died after. So that property which was presumptive legitime.
inherited by the son from the father would now go to the wife
as the heir of the son. But if the son died first, if he had Last for 777. So again we mentioned from the moment of
properties, it will be inherited by the wife. But with respect to death, succession to the estate already becomes effective. The
the properties of the father, afterwards the father died then rights to succession are already made effective from the
moment of death. Can the decedent provide that upon his
whatever properties left by the father will not be enjoyed by
death, there will still be no transfer of death to his heirs. After
the spouse. It will go to his own heirs. The spouse will not be my death, my property will only be transferred to my heirs
part of his heirs because the son died ahead. It would affect after 5 years. Possible banasyanadilisaniyaitransferang
the distribution of the properties because even if we say in the ownership? NO because the law say effective upon moment of
death but what is possible is that the decedent may provide for Or, As we will discuss later, there can be a will, there
prohibition on partition. They cannot partition the property can be a valid will even if it does not designate an heir. How
within certain period of time or he cannot sell or alienate the can there be such a will? When the will contains only a
property. Even if you inherited the property, you cannot sell disinheritance. Why is it valid? We will just discuss later. But
the property. For how long? The maximum period is 20 years. really, because in that will, there is no heir designated.
Even if the decedent said in his will, my heirs cannot sell the
Q: So can there be testamentary succession? There is a will
property forever, for 50 years, for 100 years then that
but it merely mentions a disinheritance.
limitation is only effective up to 20 years. So that is the only
limitation. He cannot say no transmission from the moment of A: there is no testamentary succession. The will shall be given
death. That refers of course to the compulsory heirs insofar as effect insofar as in disinherits the heir. But with respect to the
their legitime is concerned or to the legal heirs insofar as their disposition of the properties to all the other heirs not
legal shares are concerned. Because if it is a legacy or devise disinherited, it would be done by intestate succession.
or a voluntary inheritance, he can provide for limitations. Dili Of course, under art. 779, the will should be executed
saihatagsaiyaha until after 5 years from my death. Again, in the forms prescribed by law because our law provides for
insofar as the legitime is concerned, the transfer happens from formalities in the execution of wills. If the formalities are
the moment of death. If we are talking of legitime, prohibitions not followed, the will cannot be given effect.
on partition or prohibitions to alienate may be provided by the
decedent for a period not exceeding 20 years. So even if there is a will but it is not in the form
prescribed by law, it cannot be given effect, there will be legal
or intestate succession. Dili gihapon mahatagan ug effect ang
JULY 3, 2014
will.
by Sigrid Mier
Now, testamentary succession is preferred over
intestate succession or legal succession.
So, we now proceed to Art. 778. Why? Because if a person executes a will, it is
Art. 778. Succession may be: presumed that he wants his will to be given effect. A
person does not execute a will just for the sake of executing a
(1) Testamentary; will. Because if he wants the properties after his death to be
(2) Legal or intestate; or executed in accordance with his will. So as much as possible,
we have to follow his will, we have to give effect to the will.
(3) Mixed. (n)
This is illustrated, the principle that testamentary
succession is preferred over intestate succession
So, if under art. 778, we have here 3 kinds of (testacy is preferred over intestacy), in the case of (this is
succession mentioned. Although there are other kinds of a landmark case) RODRIGUEZ v. BORJA.
succession. (Note the time and place of probate of the will and
Now as to 778, we have testamentary succession, the institution of intestate proceedings)
legal or intestate succession or mixed succession. Basically,
these are the classifications given insofar as the existence or Atty Y-E: When you go to spec pro, under the rules of
nonexistence of a will is concerned. court, the probate court actually acquires jurisdiction over the
case:
What is testamentary succession? It is actually
defined in art. 779. 1. By delivery of the will to the court
2. By a petition filed in court.
Art. 779. Testamentary succession is that which results from
the designation of an heir, made in a will executed in the form It’s either when you deliver the will or when the
prescribed by law. (n) petition was filed. So in reality, as early as march 4, 1963, the
probate court already acquired jurisdiction because the will
was already delivered to the court. So technically, the probate
So testamentary succession, it is very clear, it results proceeding was already filed or instituted ahead of the
when there is an heir designated in the will which is executed intestate proceeding because of the delivery of the will to the
in the form allowed by law, to make it a valid will. court.
So succession by means of a will, the distribution of But again, assuming that nauna jud ang probate
the properties of the decedent would be in accordance with proceedings, it cannot be suspended to give way to instate
the will. proceeding. It should be the intestate proceeding that should
be suspended to give way to the probate proceedings.
Now in art. 779, we also see that there is a
designation of an heir in the will. So, you cannot just, provide Now in the case of BALANAY v. MARTINEZ.
that “I hereby dispose of all my properties”. To who? There is (as to the issue of whether the will is void, conversion
no heir designated. of the testate proceeding to intestate; note also the invalid
provision)
Atty Y-E: okay, as I mentioned before, dba while we  There is a will but the will becomes
discussed the property, rights and obligation, if you are talking ineffective
of properties, these must be owned by the decedent. So here,
So the provisions of the will cannot be followed.
the conjugal lots were not owned separately by the decedent.
Those are enumerated in art. 960.
It was part of the conjugal property. So she could not have
validly disposed of, in her will, the properties belonging to the We go first to Art. 780.
conjugal partnership.
Art. 780. Mixed succession is that effected partly by will and
Atty Y-E: Okay, so, even if assuming those partly by operation of law. (n)
provisions are invalid, as long as they can be separated
from the valid provisions, there invalidity should not
result in the total invalidity of the will. Again, remember So, partly by will or partly by operation of law. Okay.
that testacy is favored over intestacy. As long as there is a will, Q: when can there be instances of mixed succession?
we give effect to the will. Just disregard those invalid Meaning the estate is distributed partly by will or partly by
provisions. legal succession?
Atty Y-E: So in effect, because of the conformity by A: for example, a decedent did not dispose of all his
the husband, the court said it could give effect to that properties in the will. So his estate is equivalent to 10M. He
provision. To give effect to the wishes of the testator is the disposed by will of his properties only to the extent of 6M. So
principal law on matters of disposition. Remember again that ang 4M worth of properties wala niya gimention sa will.
testacy if favorable than intestacy. The court even said that:
Q: so how will these properties be disposed?
So compelling is the principle that intestacy should be
avoided and that the wishes of the testator should prevail that A: the 6M worth of properties shall be disposed of in
sometimes the language of the will can be varied for the accordance with the will. The remaining 4M not mentioned in
purpose of giving it effect. the will shall be distributed by legal or intestate succession.
So in that case, if the testator expressed her wishes If for example, there is also a will but some of the
that the conjugal property should be partitioned in accordance provisions of the will are void, they cannot be given effect,
with the will, with the conformity of the husband, then the then only those provisions which are valid shall be respected.
court should give effect to the will. Because again, testacy is in Those provisions which are not valid, shall be disregarded, so
favor of intestacy. the properties covered by those invalid provisions shall be
distributed by legal succession.
Now we have art. 780 which defines mixed
succession. Again, in mixed succession, estate is distributed partly
by will or partly by operation of law.
But before we go into the details of mixed succession,
what is legal succession? Actually, there is no definition There are other kinds of succession, as we have
under the new civil code. Instead, there is an enumeration of discussed before, we have:
those instances when there will be legal succession. That 1. As to effectivity:
would be under art. 960 of the NCC. a. Succession inter vivos
Art. 960. Legal or intestate succession takes place:
b. Succession mortis causa
(1) If a person dies without a will, or with a void will, or one 2. As to origin:
which has subsequently lost its validity; a. testate
(2) When the will does not institute an heir to, or dispose of all
the property belonging to the testator. In such case, legal b. intestate
succession shall take place only with respect to the property of
which the testator has not disposed; c. mixed
3. As to extent:
(3) If the suspensive condition attached to the institution of
a. universal – when a person is instituted as
heir does not happen or is not fulfilled, or if the heir dies
an heir to the universality of the properties,
before the testator, or repudiates the inheritance, there being
rights and obligations, or ideal share or a
no substitution, and no right of accretion takes place;
fraction or aliquot share.
(4) When the heir instituted is incapable of succeeding, except
in cases provided in this Code. (912a) b. particular – when a person receives
specific property from the decedent; that is
succession by legatees or devisees, specific
So in legal succession, the distribution would be in personal property or specific real properties
accordance with law. Why? Because: are given.
4. As to part of property transmitted:
 There is no will
a. forced or compulsory succession – that is
 There is a will but it is void and cannot be
succession to the legitime by the compulsory
given effect
heirs, they will get their legitimes whether or collected yet? Didto na sila nacollect pagkamatay ni decedent.
not the testator wants. This is forced upon So who is entitled to the rental income which accrued during
the testator by law. the lifetime of the decedent?
It will not go to the heir. It will be part of the
b. voluntary succession – meaning depende estate. Sa decedent na sya.
sa testator kung hatagan niya. This is the So only those which accrued after the death of the
succession by voluntary heirs. Katong dili decedent as part of the heirs ownership.
considered as compulsory heirs. So voluntary
heirs can be written in the will, like friends of Halimbawa naman nakadawat sya ug parcel of land,
the testator, the brothers or sisters of the after the death, naay accretion, so who owns the accretion?
testator. They are not compulsory heir but if Of course the heir, kay ang accretion ang-occur na
they are given something in the will, that is after the death. So, those property which accrue from the
what we call voluntary succession. They are moment of death, these will be part of included in the
instituted to the free portion. inheritance.
c. contractual succession – this is under the Let’s go to 782:

law, donations of future properties between Art. 782. An heir is a person called to the succession either by
spouses by reason of marriage, shall be the provision of a will or by operation of law.
governed by the provisions of testamentary
succession and the formalities of wills. Devisees and legatees are persons to whom gifts of real and
personal property are respectively given by virtue of a will. (n)
****break***
Please read Art. 781: Okay, so we have definitions under art. 782.
Art. 781. The inheritance of a person includes not only the
First, who is an heir?
property and the transmissible rights and obligations existing
at the time of his death, but also those which have accrued An heir is person called to the succession either
thereto since the opening of the succession. (n) by the provision of a will or by operation of law.
Based on the definition, the term heir exists, both in
Okay, so art. 781 gives us what are included in the testamentary succession and in legal or intestate succession.
inheritance. So we mentioned before, that inheritance consists Devisees and legatees are persons to whom
of properties, rights and obligations. Now under 781, it says gifts of real and personal property are respectively
not only the transmissible properties, rights and obligations given by virtue of a will.
acquired or existing at the time of death but also those which
have accrued from these properties since the opening of Strictly speaking, a devisee is one to whom gifts of
succession. Meaning those which have accrued to these real or immovable property is given.
properties from the time of death of the decedent. Legatees are persons to whom gifts of personal or
For example, during his lifetime, the decedent owned movable property is given by virtue of a will.
a building. The building is being rented out. With this, there
are income from the building, rental income. So this building is So the term devisees and legatees exist only in
inherited by A. So from the death of the decedent, the building testamentary succession. There is no such thing as devisee or
now belongs to A, the heir. legatees in legal or intestate succession.
After the death, naturally, as we have discussed Let’s go back to heir. The law says, either by a
before, the lease is not extinguished, unless otherwise provision of a will or by operation of law.
stipulated in the lease contract. So the heir will continue the
lease contract until its expiration. So in a will, if there is a will, the heirs may be:
How about the rentals from the building? Who owns 1. Compulsory heirs or forced heirs
the rentals? 2. Voluntary heirs
Those rentals which became due after the death of
Compulsory heirs or Voluntary heirs
the decedent, they will go to the heir, the one who inherited
the property. forced heirs
Basis: Art.781. This is part of the inheritance.
These are the heirs who are Those persons who are not
Actually, we can relate this to your law on property, the law on
entitled to their legitimes. entitled to legitimes.
accession, to the owner of the property belongs those which
are attached or incorporated to the property, so this will These are the heirs who They only exist because of
belong to the heir because this is part or incident to his cannot be excluded from the will of the testator. Their
ownership. Being the owner of the principal, he also owns the participating in his estate, right to receive the property
accessions, accessories to the thing. unless, there is a valid ground is dependent to the validity of
How about during the lifetime of the decedent, for disinheritance. the will of the testator.
there were also rental income which also accrued but not
Q: Can a compulsory heir be at the same time a The following are the distinctions:
voluntary heir?
Heirs Legatees or Devisees
Note:
The heirs succeed by general
Art. 887. The following are compulsory heirs: right or universal title maybe
(1) Legitimate children and descendants, with respect to their to all of the properties or to a
fraction or to an aliquot They succeed by special or
legitimate parents and ascendants;
portion or ideal share. particular title. They merely
(2) In default of the foregoing, legitimate parents and receive specific properties.
ascendants, with respect to their legitimate children and Ex. I hereby institute A as
descendants; heir to my entire estate or to Ex. I hereby give to A my 1M.
½ of my estate or to 20% of
(3) The widow or widower; So that is a legatee.
my estate.
(4) Acknowledged natural children, and natural children by Ex. I hereby give to A my
He is still an heir. Why?
legal fiction; building in Claveria, Davao
Because the decedent did not
City.
(5) Other illegitimate children referred to in Article 287. entitle him to a specific
property, merely a share, an So that is a devisee.
A: Yes. If they are given over and above their ideal share or spiritual,
legitimes. aliquot. So dili nimo
For example, the son’s legitime is only 1M but is given madetermine.
5M. With respect to the 4M, he is a voluntary heir. He can be The term heir exists in The term legatees or devisees
deprived of that portion but not the 1M which is his legitime. testamentary and intestate exists only in testamentary
Also, all compulsory heirs, for example there is no succession. succession.
will, the heirs are called the legal heirs or intestate heirs. The heir, if compulsory,
Legatees and devisees
Halimbawa, there is no will or the will becomes succeeds to the inheritance,
succeed only by reason of the
invalid, can the compulsory heirs also become the legal heirs? regardless of the will of the
testator’s will.
decedent.
A: Yes, in fact remember this: All compulsory heirs
are legal heirs. So even if without a will, these compulsory The quantity cannot be
heirs which I mentioned can still inherit as legal heirs. determined until after the
liquidation of the properties of
So when we say all compulsory heirs are legal heirs, the estate, because even if
does it follow that all legal heirs are compulsory heirs? As a legatee, when you are
the decedent would “to the
instituted, you already know
Not necessarily. Why? Because there are other entire estate”, but how much
how much.
categories of legal heirs not only the compulsory heirs. Mas would the estate be worth
daghan actually ang legal heirs, aside from the ones I after paying all the taxes and
mentioned. In fact, relatives by consanguity up to the 5th the charges. So dili pa ta
degree are legal heirs but they are not compulsory kabalo.
heirs.
The heir represents the
So even if you have a brother or sister, if you execute juridical personality of the
a will, halimbawa wala kay anak, walay kay asawa, wala nakay deceased according to his
parents, so ang nearest nalang nimo nga relative kay imung properties, rights and
brother or sister, so you execute a will giving all your obligations. They do not represent the
properties to your neighbor, pwede ba moreklamo imung juridical personality of the
*After death, the heirs may
brothers or sisters? decedent because they only
represent the estate of the
receive specific properties.
Pwede sya moreklamo. Moreklamo jud sya. Pero decedent as long as there is
wala syay right moreklamo, because he/she is not a no appointed administrator or
compulsory heir. He/she is just, in testamentary succession, a executor. He can bring suit.
voluntary heir. Kung tagaan sya, kung wala, he/she has no He can represent the estate.
right to complain. He can institute actions for
and in behalf of the estate.
So it is important that you should know the distinction
between heirs and legatees and devisees. Why? The heirs succeed to the But legatees or devisees, they
properties, rights and inherit only specific properties
Because there are provisions in succession which are
obligations. or rights. Walay
applicable only to heirs and which are only applicable to
obligations.
legatees or devisees. So you should know whether this person But again remember that the
is an heir or a legatee or devisee. Para makabalo mo kung heirs cannot be made Note: Walay legacy of
applicable ba na sa iyaha ang certain provision. personally liable for the debts debt, pero naay legacy of
of the decedent. Their liability credit, legacy of
is only up to the extent of the remission. Example:

value of the inheritance.
Art. 854. The preterition or omission of one, some, or all of the
The heirs succeed to the compulsory heirs in the direct line, whether living at the time
remainder of the estate. After of the execution of the will or born after the death of the
all the debts, devises and testator, shall annul the institution of heir; but the devises and
legacies have been paid. legacies shall be valid insofar as they are not inofficious.
So meaning, when it comes to If the omitted compulsory heirs should die before the testator,
voluntary heirs, they are the institution shall be effectual, without prejudice to the right
They succeed to the
entitled to what we call the of representation. (814a)
determinate thing or amount
residual share. After
given.
payment of all the liabilities.
After payment of all the Dili residual share kay they Now under the law, if there is pretirition, meaning a
devises or legacies. Meaning, are given specific properties. compulsory heir in the direct line is omitted in the will, like a
kung voluntary ka, may naay Unless of course, the legacy son of the testator, he did not mention the son at all in the
preference ang legatees or or devise, would already be will. He gave all his properties to his other children, to his
devisees. Kay unahon sila ug inofficious. Meaning, to give friends but no mention at of the son.
hatag. Kung naay mabilin, sa all as legacy or devise would Under the law, the will may be annulled because
heir to sya. impair the legitimes of the there is preterition. So when the will is annulled, the institution
compulsory heirs. of heirs in the will cannot be given effect.
Pero of course, it’s a different
story when it comes to But with respect to legacy or But legacy or devises, which are not inofficious shall
compulsory heirs. Unahon jud devise vis-à-vis voluntary be respected.
ug hatag ang legitimes sa heirs, mas naay preference
compulsory heirs. In fact, sa ang legacy or devise. For example, there is preterition and the testator
distribution, pay the taxes, gave all his properties to his other children except to his son.
liabilities, the charges, after He even gave to his friend, A, cash worth 10M. So there is
that, give the legitimes, after preterition. What happens to the will? It is annulled. The
that give the legacies and institution of heirs shall be annulled.
devisees, after that to the Will A get the 10M? Is it a legacy or an inheritance?
voluntary heirs.
It is a legacy. Under the law on preterition, if the
legacy is not inofficious, meaning it will not impair the
Exercises: legitimes of the compulsory heirs, that can be given effect. So
pwede to mahatag kay A ang 10M.
So for example, “I hereby give to A ½ of my lot in
Jacinto St. DC. What is A? Assuming, “I hereby institute all my children (M, N, O)
except my son and A, my bestfriend, as my sole heirs to my
A: devisee. estate”. So there is preterition.
Q: Why? Didn’t we say ½? So again, the institution of heirs in the will shall be
A: But still it is with reference to specific property. He annulled.
was given specific property in Jacinto St. Kadtong si A nga bestfriend gi-institute along with the
Q: “½ of my estate”? other children, makadawat ba siya?
A: Heir No. Because he is a voluntary heir and the institution
of heirs is entirely annulled. So kung voluntary heir lang ka
Q: “½ of my cash in metrobank”?
tapos naay preterition, dili ka makadawat. Pero kung
A: legacy. legatee ka or devisee, possible pa gihapon nga
makadawat ka, as long as not inofficious.
Q: “½ of my cash”?
So that’s one importance or significance of knowing
A: heir. Because it is not specified.
the distinctions between an heir, on one hand and a legatee or
Q: “20% of my savings in BPI”? devisee, on the other.
A: legacy. Please read 783:
Q: “20% of my funds”? TESTAMENTARY SUCCESSION
A: Heir. SECTION 1. - Wills
So tan-awon ninyo ang object nga gihatag. SUBSECTION 1. - Wills in General
Why is it important again? Because there are certain Art. 783. A will is an act whereby a person is permitted, with
provisions in the civil code which are applicable to one but not the formalities prescribed by law, to control to a certain degree
to the other.
the disposition of this estate, to take effect after his death.

(667a) A: we have to make a distinction. Insofar as wills
recognized here in the Philippines, we have the
notarial will and the holographic will.
So art. 783 defines a will. Based on the definition, it is
defined as an act. The act of disposing or controlling the Notarial wills are those which require several
disposition of the estate. formalities. They can be computerized; typewritten,
etc. they have the requirements of attestation,
 An act whereby a person is permitted: meaning, dili diay
witnesses, acknowledgement before the notary
absolute right ang execution of the will. It merely depends
public.
on the privilege or permission given by the state
 With the formalities prescribed by law: meaning, it is
Holographic wills on the other hand, are those that
formal.
are entirely written and dated in the hands of the
 To control, to a certain degree, the disposition of estates:
testator.
so by means of the will, the person is able to control the
disposition of the will but not absolutely, because the law
So if you are asked that question, insofar as notarial
says to a certain degree.
wills are concerned, YES. In fact, most notarial wills
 Mortis causa
are drafted by lawyers because of the formalities and
So even if the law defines will as an act, we can also requisites involved. It would be dangerous and risky if
define will as an instrument itself, where the testamentary the testator would just make his own notarial will.
provisions are embodied. Usually lawyers draft the will, so it can be delegated.
Under our jurisdiction, we have wills as instrument. In
fact, under our law, we only allow written wills. We don’t have When we say holographic wills, NO. even the
verbal or oral wills. mechanical act of drafting the will cannot be
delegated to a third person because the law requires
So the will may be an act, but it is also the document that the will, that the content, the date, and the
or instrument where the act or disposition is embodied. signature must all be in the handwriting of the
Now, we know the definition. We also need to know testator, so it cannot be dedicated.
the essential elements and characteristics of a will. There are Another consequence of the will, being personal to
several. You have to know them by  because they practically the testator is:
summarize the basic principles in testamentary succession.
In your evidence, in the definition of a public
Just in case, in the bar exam or in your exam, dali ra document, when the document is acknowledged
kayo tong bar noh, cge in your exams nalang sa or cge in the before a notary public it becomes a public document.
bar nalang pud. You will be asked on testamentary succession But the rule says except will.
and you forgot. At least para naa moy answer, kanang sensible
gihapon kanang dili far out kaau. So even if the notarial will is acknowledged before the
What are the essential elements? PASS-U-C- notary public, it does not become a public document.
FRDOM. (You should be able to relate to this in your journey In fact, the notary public before whom the will is
*char* or in the battle that you are in, because when you pass acknowledged is not required to keep a copy a will.
you are free. Esp. when you pass the bar exam, you are free. Because it would be dangerous if anyone can just get
You don’t have to take the bar exam again a copy of the will.
*malamang.hahaha*. kung kabalo lang mo unsa kakapoy.
Kanang murag sa moral damages nga grounds kana sya. So 2. A-NIMUS TESTANDI
gusto jud ninyo makapasa so you can see freedom) There should be an intent to execute the will.
Testamentary intent to make the will.
1. P-ERSONAL
Will making is the personal act of the testator. When How do we know?
you say personal, meaning the will itself must be the When the testator at the time when he executed the
last will and testament of the testator. The contents will, knew the legal consequences of the
of the will should be the desires of the testator. He document. He should know that this document
cannot subordinate the validity of his will to the would transfer his properties mentioned to the heirs
approval of some other person. It has to be his own mentioned at the time of death. He should know the
act. That is why there are provisions in the civil code purpose of the legal document.
which makes it void if the testator, the validity of the
testamentary provisions are made to depend on the That is why, under the law on testamentary capacity,
will of another person. It has to be your own will, a person has to have sound mind. Remember there
your personal disposition. are only to qualifications to execute a will:
a) 18 years old
Relative to this, can the testator delegate to another b) Sound mind
the mechanical drafting of the will?
Soundness of mind is required because of the animus

testandi requirement. How can you have animus So we have to know what are the formalities required
testandi when you are not of sound mind or insane by law, in the execution of wills.
for example.
5. U-NILATERAL
Meaning the testator cannot condition the making of
So persons of unsound mind cannot execute wills the will upon the consent or act of another. Siya ra
because they do not have animus testandi. gyud ang magbuot sa iyahang will.
MONTINOLA v. HERBOSA
He cannot condition his disposition to the will also of
Jose Rizal’s: Mi Ultimo Adios another person.
Here, no animus testandi, merely an expression of
last wish or advice. Therefore, it is not a last will and I hereby give to A my house and lot in Davao City,
testament. Basically because there was no animus provided, A will give to me his car.
testandi here.
Dili siya pwede nga naay kapalit because when you
Remember that there is no intention here on the part allow those kinds of provisions, you are converting
of Jose Rizal. the will into a bilateral disposition. Mura na siya ug
It can be a will in the grammatical sense but not in contract. It has to be unilateral. Depende lang gyud
the legal sense. sya sa decedent, not conditioned upon another act of
another person.
Actually when you speak of a will, it should contain a That is why when we go to legacies, there is a
disposition of property, so it cannot be a will without prohibition of such kinds of provisions like the testator
a disposition of property. We will just discuss that will give his property to another on the condition that
later. the other person will also give his property to the
testator. That is what we call a disposition capta
3. S-TATUTORY toria. It is void because it tends to convert the will
Meaning, we have the laws on succession, because of into a bilateral act, which is not allowed because the
the New Civil Code. It is a law. Without the law, we will should be a unilateral act of the testator.
cannot execute wills.
6. C-APACITY
Note that there are countries which do not give their At the time of the execution of the will, the testator
citizen the privilege to execute wills. should have testamentary capacity. (18 years old and
sound mind)
So will-making is just a privilege given to us, not an
inherent right. As a matter of fact, the law can Without it, the will is not valid.
withhold that testamentary privilege.
7. F-REEDOM FROM VITIATED CONSENT
This is also evidence in the clause in “permitted to So the execution of the will, the testator must be free
control to a certain degree”. from vitiated consent. He must not be acting under
Art. 783. A will is an act whereby a person is fraud, undue influence, duress, etc.
permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of this Presence of the vices of consent would result in the
estate, to take effect after his death. (667a) disallowance of the will.
8. R-EVOCABLE OR AMBULATORY
Will must still be subordinated to law and public Even if the testator executed his will in the form that
policy. So there are provisions of the will which can is valid, with testamentary capacity and without vices
be struck down for being void or for being against of consent, he can still revoke his will.
public policy. So the freedom of the testator in
executing the will is not actually absolute, he is just As long as he is still alive. Of course, he cannot
allowed a certain degree, to control the disposition of revoke his will when he is already dead.  Only
his property. during his lifetime.
4. S-OLEMN Unlike donations, where the donor may revoke the

It is formal. We have to follow the solemnities and donations but based on certain grounds. A will, walay
formalities prescribed by law. That is one very ground. Almost absolute ang freedom sa testator to
important aspect of testamentary succession. revoke his will.
Because, absence of compliance, the will cannot be
given effect. Even if gidawat na, nag thank you na si heir.
So legal succession will control kay dili man valid ang

Even if gi-probate na sa testator ang iyang will. will. Now A would like to demand his share as
Because under probate proceedings, there can be illegitimate child. Pero walay pirma sa birth certificate
probate during the lifetime of the testator that is what nga illegitimate child sya, ang proof ra niya ang
we call ante mortem probate as opposed to post purported last will and testament ra sa testator.
mortem probate (pagpatay na). So ante mortem
probate tapos gi-allow na pa jud sa court. Still, it can Q: can the spouse or children allege that A cannot
be revoked. use that as evidence because that document is not in
the form of a will, it is void.
Almost absolute:: because naay limitation. Example,
the testator loses soundness of mind. That is the only A: NO. It is not a will, so it does not have to conform
time that he cannot revoke his will because to the formalities of wills. In your persons and family
revocation, just like execution, requires relations, it can be admitted as evidence of your
soundness of mind. acknowledgement because it is subscribed by the
parent concerned.
Like nabuang sya, gigisi niya ang will. Dili to sya valid
na revocation. He does not have animus revocand Q: How about a document containing only a
or the intent to revoke. disinheritance?
9. I-NDIVIDUAL MERZA v. PORRAS

The will must be the act of only one person. So one
will, one person. SEANGIO v. REYES
Dili pwede na couple A and B, kay close kayo sila, or What are the two kinds of disposition in the will?
sweet kaayo sila or basig nagtipid lang sila ug papel 1. Direct disposition- assign specific property to the
 , ang ilahang will gi-isa ra nila. That is not allowed, heir
that is what we call a joint will. 2. Indirect disposition- exclude an heir indirectly
It is void because it is against public policy. ATTY Y-E: In disinheritance, you mention a person
who cannot receive and those mentioned are the
Because, pag kabalo naka unsay provision sa isa, like ones who will receive. It is an example of an indirect
sa mag-asawa, gihatagan ang wife ug 20M sa iyang disposition. If that is the case, it is still a will because
bana, mainteresado na i-advance nalang ang death sa it still contains a disposition of property.
iyang husband para makuha niya to. It will tempt the
other to commit parricide.
JULY 14, 2014
10. D-ISPOSITION OF PROPERTY
Cont. ART. 783
If you have a document which is to be your last will
and testament, it should contain a disposition of
property. M stands for Mortis Causa – upon death
If walay disposition of property, it cannot be in the Without death we cannot speak of succession by will. Even if
legal sense be considered as a will. there is a will but if the decedent is still alive then there would
be no transfer. If there is a document containing a transfer of
I hereby acknowledge A as my illegitimate child. It is property but the transfer would take effect during the lifetime
my last will and desire that my spouse and my of the testator that is not also a will.
children will accept A, who is my illegitimate child.
In relation to Disposition of Properties and Mortis Causa, we
This is not a will. It does not contain a disposition of
have the case of Vitug v. CA – a survivorship agreement was
property.
executed between husband and wife. Subject matter of the
Q: what is the consequence if it cannot be considered survivorship agreement is the joint account of the spouses. It
a will? was stipulated that when either of them dies the balance of
the savings account shall belong to the one who survives. One
A: it can be effective, even without complying with of the spouses died, the surviving spouse claim the balance of
the formalities of the will. the joint account by virtue of the survivorship agreement but it
was contended that it could not validly transfer the funds to
Ex. Namatay na si testator, mao ra to iyang last will.
the surviving spouse because the survivorship agreement was

not executed in the form of a will. It did not observe the

formalities of will. 3. The determination of the portions which they
are to take, when referred to by name.
Is it required that the said agreement should be in the form of
a will for it to be valid? The SC said NO. The will must purport “I hereby leave my bank account in HSBC to A,B and
to deliver ones separate properties in favor of another. Hence, C. X will determine how much will each receive”. Lahi
if the H and W have a joint savings account and they merely na person ang magdivide sa bank account when
referred to by name. That is also not allowed.
agree in an instrument that when either of them dies the
balance of the savings account shall belong to the one who
Article 786. The testator may entrust to a third person the
survives – this is not a will because the account is their joint distribution of specific property or sums of money that he may
holding. Pwede niya makuha ang balance because the leave in general to specified classes or causes, and also the
survivorship agreement is not a will and therefore it is no designation of the persons, institutions or establishments to
required to follow the formalities of will for it to be effective. which such property or sums are to be given or applied. (671a)
Art. 786 is an ALLOWABLE DELEGATION.
Article 784. The making of a will is a strictly personal act; it
cannot be left in whole or in part to the discretion of a third What is the circumstance contemplated under art 786?
person, or accomplished through the instrumentality of an
agent or attorney. (670a) Here, the testator entrusts to 3rd person. What?
It is strictly a personal act. As to the contents of the will,
definitely, whether it is a notarial will or holographic will must 1. The distribution of specific property or sums of
be those of the testator, his wishes, his decisions so you money; and
cannot delegate! 2. Which he left behind in general to specified classes or
causes.
Mechanical act of drafting a will:
The person may also designate of the persons, institutions or
Notarial will – it can be delegated to a third person usually an establishments to which such property or sums are to be given
attorney or a lawyer or applied.
Holagraphic will – it cannot be delegated. Why? Because the DISTINCTION between Art. 785 and Art. 786
will has to be entirely written, dated and signed by the hands
of the testator. ART. 785 ART. 786
The heirs, legatees or The heirs, legatees or devisees
Article 785. The duration or efficacy of the designation of devisees are referred to by are not named.
heirs, devisees or legatees, or the determination of the name in the will.
portions which they are to take, when referred to by name, There is no mention of a There is a mention of a class or
cannot be left to the discretion of a third person. (670a) class or cause. cause which is specified by the
Another matter in will-making that cannot be delegated. testator.
What is prohibited is for a What the person does, the one
3 items mentioned in Article 785 – What cannot be delegated? 3rd person to determine the who is instructed by the
portion to be given to the testator, is to determine the
1. The duration of the designation of the heirs, named heirs, legatees or persons, institutions or
devisees. establishments.
devisees or legatees;
** CF to Sigma TSN for the examples given by ma’am.
For example: The testator says I hear by give my car to X and
Remember: In art. 785, when there is a naming of the heirs
Y, they may use the car alternately but the duration of the use
and what the person does is to specify the portion which each
of the car by each shall be determined by D. That cannot be
of the heir named would get. In art. 786, there is no naming
delegated because that should pertain only to the discretion of
and there is also a specific property or money given. There is a
the testator.
class or cause specified and what is being done here is just to
2. The efficacy of the designation of the heirs, determine the persons, institutions or establishments who
devisees or legatees; would get the specific property or sums of money.
“I hereby institute X,Y and Z as my heirs to the half of
Article 787. The testator may not make a testamentary
my estate but subject to the approval of X” If it is
disposition in such manner that another person has to
subject to X then it is as if X is the testator, not the determine whether or not it is to be operative. (n)
testator himself.

What is prohibited here? A disposition wherein another person second marriage and she died. Would that property be part of
has to determine whether or not the disposition has to be the estate of the wife? Because she did not contract a second
operative. marriage.
Article 788. If a testamentary disposition admits of different The SC: The grandniece is entitled to the properties for the
interpretations, in case of doubt, that interpretation by which plain desire and intent of the testator, as manifested in clause
the disposition is to be operative shall be preferred. (n) 8 of his testament, was to invest his widow with only a
Interpretation of wills usufruct or life tenure in the properties described in the
seventh clause, subject to the further condition (admitted by
Take note: If there are several interpretations, some
the appellee) that if the widow remarried, her rights would
interpretation would yield an ineffective will but other
thereupon cease, even during her own lifetime. That the
interpretation would give effect to the will, which interpretation
widow was meant to have no more than a life interest in those
shall be followed? The law says that interpretation by which
properties, even if she did not remarry at all, is evident from
the disposition is to be operative. This is in line with the
the expressions used by the deceased "uso y posesion
principle that TESTACY is favored over intestacy.
mientras viva" (use and possession while alive) in which the
The will must be liberally construed in favor of its validity. As first half of the phrase "uso y posesion" instead of "dominio" or
long as there is an interpretation that would make a will valid "propiedad") reinforces the second ("mientras viva"). The
then you follow that interpretation. Remember that in the testator plainly did not give his widow the full ownership of
matter of testaments, the testator’s wishes is the first and these particular properties, but only the right to their
principal law. possession and use (or enjoyment) during her lifetime. This is
in contrast with the remainder of the estate in which she was
Dizon-Rivera v. Dizon: The controversy here revolved instituted universal heir together with the testator's brother
around the repeated use of the words “I bequeath” because (clause 6).
when you say “I bequeath” technically and legally that refers
to a legacy. Legacy is taken from the free portion. W/N the Balanay v. Martinez: There were provisions in her will
intention of the testator is just to dispose the free ½ disposing of the conjugal estate which ordinarily would not be
disposable portion because of the use of the word “I valid. But here the SC: In the instant case there is no doubt
bequeath”. that the testatrix and her husband intended to partition the
conjugal estate in the manner set forth in paragraph V of her
The SC: The repeated use of the words "I bequeath" in her will. It is true that she could dispose of by will only her half of
testamentary dispositions acquire no legal significance, such as the conjugal estate (Art. 170, Civil Code) but since the
to convert the same into devises to be taken solely from the husband, after the dissolution of the conjugal partnership, had
free one-half disposable portion of the estate. Furthermore, assented to her testamentary partition of the conjugal estate,
the testatrix' intent that her testamentary dispositions were by such partition has become valid, assuming that the will may be
way of adjudications to the beneficiaries as heirs and not as probated. In the instant case, the preterited heir was the
mere devisees, is clear and that said dispositions were borne surviving spouse. His preterition did not produce intestacy.
out by the use of the phrase “my heir in this testament,” Moreover, he signified his conformity to his wife's will and
referring to the devisees. renounced his hereditary rights.
The testator's wishes and intention constitute the first and Testacy is preferable to intestacy. An interpretation that will
principal law in the matter of testaments, and to paraphrase render a testamentary disposition operative takes precedence
an early decision of the Supreme Court of Spain, when over a construction that will nullify a provision of the will (Arts.
expressed clearly and precisely in his last will amount to the 788 and 791, Civil Code).
only law whose mandate must imperatively be faithfully
obeyed and complied with by his executors, heirs and devisees Remember that this rule in the construction of a will should be
and legatees, and neither these interested parties nor the applied only when there is a doubt because when it is very
courts may substitute their own criterion for the testator's will. clear kung unsa ang intention sa testator then there is no
room for interpretation. The will as expressed must be given
Vda. De Villanueva v. Juico: In this particular case, the effect. It does not matter that the disposition may be unfair as
testator bequeathed to the wife ½ of the free portion for her long as it is legal, the disposition must be given effect.
“use and possession while alive and she does not contract a
second marriage, otherwise, the properties shall pass to the Article 789. When there is an imperfect description, or when
testator’s grandniece.” Here, the wife did not contract a no person or property exactly answers the description,
mistakes and omissions must be corrected, if the error appears
from the context of the will or from extrinsic evidence, Section 9.Evidence of written agreements. — When the terms
excluding the oral declarations of the testator as to his of an agreement have been reduced to writing, it is considered
intention; and when an uncertainty arises upon the face of the as containing all the terms agreed upon and there can be,
will, as to the application of any of its provisions, the testator's between the parties and their successors in interest, no
intention is to be ascertained from the words of the will, taking evidence of such terms other than the contents of the written
into consideration the circumstances under which it was made, agreement.
excluding such oral declarations. (n)
However, a party may present evidence to modify, explain or
add to the terms of written agreement if he puts in issue in his
2 KINDS OF AMBIGUITY pleading:
1. LATENT or INTRINSIC AMBIGUITY – that which does (a) An intrinsic ambiguity, mistake or imperfection in the
not appear on the face of the will. written agreement;
What are these instances where there is intrinsic

(b) The failure of the written agreement to express the true
ambiguity? **CF: Examples sa tsn ng Sigma, inaudible ang intent and agreement of the parties thereto;
answer ng nagrecit. Sorry 
(c) The validity of the written agreement; or
a. Imperfect description of the heirs, legatees or
devisees;
(d) The existence of other terms agreed to by the parties or
b. Imperfection in the description of the property their successors in interest after the execution of the written
to be given; agreement.
c. When 2 or more persons meet the description;
or The term "agreement" includes wills. (7a)
d. When 2 or more things/properties meets the
description.
So GR under the parole evidence rule, when there is an
2. PATENT or EXTRINSIC AMBIGUITY – that which agreement and it is already in writing, you cannot modify the
appears on the face of the will itself. terms of the written agreement by oral evidence. Kung unsa
tong nakasulat, it deemed to have included all the terms the
Based on Art. 789, how do we cure the ambiguity? Both parties have agreed upon except pwedemomamodify, explain,
Intrinsic and Extrinsic Evidence can be used in curing both or add to the terms of the written agreement if you put in
issue in your pleading, what are these things?
Intrinsic and Extrinsic Ambiguity.
** examples are the same in the tsn. Ibang subject matter

lang at names. (a) An intrinsic ambiguity, mistake or imperfection in the
written agreement;
1. Intrinsic Evidence – by examining or reading the will
itself. (b) The failure of the written agreement to express the true
2. Extrinsic Evidence – those evidence which you go intent and agreement of the parties thereto;
beyond the will; evidence aliunde
(c) The validity of the written agreement; or
a. Documentary or Written Evidence
b. Testimonial or Oral Evidence
(d) The existence of other terms agreed to by the parties or
Parol Evidence – GR: You can use oral or parol evidence. their successors in interest after the execution of the written
agreement.
But, an oral declaration by the testator during his lifetime
cannot be admitted. Why? Because the decedent is no longer
around. Death has already sealed the lips of the decedent. So that is the same for wills. You can vary, you can explain or
add to the terms by parole evidence as long as these times
There is nobody to confirm or deny the oral declaration. So
mentioned in 130 (are present).
you cannot testify that this is the oral declaration of the
testator. Now how about the remedy of reformation in Article 1359 of
NCC. Based on your obligations and contracts, for example,
(SECOND HOUR) the contract does not express the true agreement of the
parties, you can have it reformed. For example, you just
mortgaged your land but the document is written as a deed of
Parol Evidence Rule
sale. That was not your agreement so you can file an action
for reformation to express the true agreement. So how about I'm giving my house and lot to my adopted child A. When you
in wills, is the remedy of reformation available? No. That's in say adopted, technical term man nasya. But as to him, he is
Article 1366 of the NCC. not even familiar with the technical term adopted but
amgsaiyaha, tagaansi A ug house and lot saTagum City. So the
term adopted here can be given different meaning even if it
Article 1366. There shall be no reformation in the following
means one who has undertaken legal adoption etc. It can be
cases:
taken in its laymen,s sense, one who has been take to one's
house by the testator and has been treated as his own child
(1) Simple donations inter vivos wherein no condition is etc. It can be given ordinary meaning. If you're in doubt as to
imposed; the meaning of word, we should look at the intention of the
testator. Again, the intention of the testator is to be
(2) Wills; ascertained.
(3) When the real agreement is void. How to ascertain the intention of the testator? We should place
ourselves to the the circumstances of the testator. We should
take into consideration those attendant facts and
So in wills, you cannot file an action for reformation. Why? For circumstances that occurred during the execution of the will.
example, the testator promised that he will give you 10
hectares (of land) and you also thanked him because you If the intention of the testator cannot be ascertained then the
really appreciated the 10 hectares. So, there was already a will will cannot be given effect. Like for example, some properties.
made and you were able to see the contents of the will. You can use intrinsic and extrinsic evidence pero di
Nakabutangsa will 1 hectare lang, so diba nag-ingonna man si gihaponnimomabal-an ang intent sa testator then it cannot be
testator na 10 hectares? Ngano 1 nalang man nakabutangdiri? given effect.
Sorry 1 hectare nalangjudangmahatagnakosaimoha. Can you
file a case against him for reformation? NO. In fact, you should Article 791. The words of a will are to receive an
be thankful nagihatagankaug 1 hectare. Kay kungmagfilekaug interpretation which will give to every expression some effect,
action for reformation, basin irevoke pa to niyaiyang will, wala
rather than one which will render any of the expressions
nay mahatagsaimoha. So it's not allowed, this is only allowed
in bilateral contracts but not in wills. inoperative; and of two modes of interpreting a will, that is to
be preferred which will prevent intestacy. (n)
Let's go to article 790. Actuall, under 791, there are two parts here. First part is the
words of the will are to receive an interpretation which will
Article 790. The words of a will are to be taken in their give to every expression some effect other than which would
ordinary and grammatical sense, unless a clear intention to use render the expression without effect. Meaning, the will must
them in another sense can be gathered, and that other can be be interpreted as a whole. Second, if there are two mode of
ascertained. interpreting a will, that which would prevent intestacy. Testacy
is favored than intestacy.
Technical words in a will are to be taken in their technical
Let's go back to the first part. (Recitation)
sense, unless the context clearly indicates a contrary intention,
or unless it satisfactorily appears that the will was drawn solely ? v Gonzales
by the testator, and that he was unacquainted with such
technical sense. (675a)
Why? What was their reason (for filing the action)?
So how to interpret the words used in the will? If it is an What was that provision of the will?
ordinary term, then give it its ordinary meaning. If it is a How did the SC interpret the will?
technical term then give it its technical meaning. So when you
say a table, a chair, it's a table or a chair. Unsa pa bay lain?
When you say adopted, it is a technical term. In a legal sense, In resolving that issue, SC actually interpreted the will as a
one that has undergone judicial adoption, decreed by law to be whole. So the SC connected the word pahihintulutan with the
adopted. When you legacy, it means a gift of personal word tungkulin o gampanan arriving at a conclusion that it is
property. When you devise, it is a gift of real property. So mandatory or directive not just a permission.
these are technical terms, use them in their technical sense.
But there are certain situations when an ordinary term can be Article 792. The invalidity of one of several dispositions
given another meaning and also a technical term can be given contained in a will does not result in the invalidity of the other
another meaning. What are these instances? There are certain dispositions, unless it is to be presumed that the testator
exceptions. (1) When there is a contrary intention (2) When would not have made such other dispositions if the first invalid
the testator prepared the will by himself and he is disposition had not been made. (n)
unacquainted with the technical meaning. For example, there
is a testator who drafted his own will and in his will he said,
This is also illustrated in the case Balanay v Martinez. Let's go (4) 935
back to the provision where the testatrix disposed of the
conjugal lot. First, the SC it can be interpreted in 2 ways. It Why would the article not apply to an heir? Because of you are
can be interpreted in a way that the provision is void or that it an heir, your succession is by universal title. So you succeed to
is valid. So we followed interpretation that will make it valid. the universality of properties, rights and obligations. Like for
Assuming such provision is really null and void but that would example, testator instituted A as an heir entitled to 1/4 of his
not make the entire will invalid because there are other property. What is A, a devisee, a legacy or an heir? He is an
provisions in the will. So if the invalid provision is taken from heir because his institution is to an aliquot share, a fraction, a
the valid provisions then we will only disregard the invalid. We portion, an ideal share not a specific property. Although
give effect to the remaining valid provisions unless they are isalangang property sa testator, katolanglang, but he said 1/4
connected or dependent to each other that the invalidity of of my property. So pagkapatayni testator, ang land is 12
one will carry the invalidity of the rest of the provisions. hectares. So siAang 1/4 niya is 1/4 of what? If we follow 793,
only 1/4 of 10 has but he is an heir who succeeds to the
Article 793. Property acquired after the making of a will shall universality of property, rights and obligations. In that case,
only pass thereby, as if the testator had possessed it at the you succeed to 1/4 of 12 which is 3 has not only 2.5. As an
heir, universal succession imoha not only particular succession.
time of making the will, should it expressly appear by the will
So 793 would only apply to legatees and devisees.
that such was his intention. (n)
793 is what we call the second rule to after acquired
It refers to the properties acquired after the making of the will properties. What is the first rule? 781
but before the death of the testator. To whom will those
properties go? Article 781. The inheritance of a person includes not only the
property and the transmissible rights and obligations existing
If we reword 793, only those properties owned at the time the
at the time of his death, but also those which have accrued
will is made is included. Properties acquired after the making
of the will shall not be included in the disposition. In what thereto since the opening of the succession. (n)
situation will 793 apply? Take note although 793 is silent if will
apply to a legatee or devisee or heir but 793 only applies to So the after acquired properties contemplated in 781 are those
legatee or devisee. If your are a legatee or devisee, you are properties which accrue or exist at the time of the death of
given a specific property (land or bldg), only that land or decedent. Asa man to muadtoang properties nanadugang? Kay
building existing during the execution of the will is given to heir. 781 may apply to an heir, legatee or devisee.
you, is included in your devise or legacy. If for example, dugay
pa namataysi decedent and in the meantime nagunganang So kungunsaimongnakuha at the time of death then
building or ang land, asa man to muadtoangnadugang? Wala subsequently, naaynadugang. Devisee kasa land. Namataysi
to syaylabotsa legacy or devise then they are part of the testator sa 2000 then you received the land, 10 has. After that,
estate. nagbaha, naay accretion.Nadugangan.Nahimong 12 has.
Asanamanmuadtoang 2 has? Saimohagihapon because to the
owner who is the principal belongs the accretion or accession
For example, in 1990, the testator executed a LWT. He devised or accessories.
to A a parcel of land in Davao city covered by tct 12345, so
specific devise. Ang area atona land is 10 hectares. Because of Pero kung devisee kasa will na executed in 1990 and then
the action of the river over time, nag-increase ang area sa after the time of the execution of the will, naduganganang
land. Accretion belongs to the owner of the adjacent land. property ug 2 has, diligihaponmaincludeang 2 has because
Under the law on property, the owner of the principal is the you are limited to the property given to you at the execution of
owner of accretion or accession. So, 1990 til 2010, napataynasi the will. 2 has, accretion to sya. Sa estate to sya s decedent.
testator and at that time, the area of the land is already 12 In fact, under your LTD, if naay accretion then titled imong
hectares because of accretion. Upon testator's death, how land, ang accretion is not automatically included in the title.
much can devisee claim? Based only 793, only the property Although ikawnaang owner ato because you are the owner of
existing at the time of the execution of the will so 10 hectares. the land natitulado, you have to apply for the titling of the
So asamuadtoang 2 hectares, kungwala to gihatagsa testator land. Otherwise, if occupied sya ng tao in bad faith for 30
to anyone, to his legal heirs, saiyang estate. years, walana. It could be acquired be prescription because it's
not included in your title.
EXCEPT, one is mentioned in 793.
781 refers to properties accruing after death of the decedent.
When the testator expressed in his will that his after acquired
properties shall be included in the devise or legacy.
793 refers to properties acquired after the execution of the will
(2) 836 but before death of decedent.
(3) 930 After acquired properties in 793 do not belong to devisees but
after acquired properties in 781 belong to the devisee, legatee
or heir being an incident of their ownership. Article 795 tells us how to determine whether or not the will is
valid. But Article 795 is only limited to the formal validity from
Another illustration: the view point of time.
For example, a building leased by testator. During his lifetime
BQ: What law governs the validity of a will?
in 1990, he made a will giving the building to A. At that time,
the building was leased. And then, the testator died in 1991.
A: The answer should not be limited to Article 795.
At the time of death, the devisee nakuhaniyaang
building.Halimbawa from 1990 up to death of decedent,
Actually, there two kinds of validity – Formal or Extrinsic
walanibayadangmganagalease.Nakabayadlangsila in 1992.
Asakaronmuadtoang rentals? We have to make a distinction. validity and Intrinsic validity.
As to those rents which accrued or earned during the lifetime
of decedent, sa estate sya. Dili syamakuhasa devisee even if at In Article 795, it says, as to its form, so meaning we are
the time of payment, syanaang owner sa building. Because dealing here with the Formal Validity.
that is considered as an after acquired property. To those rents
which accrued from the time of death of decedent, 1) Formal or Extrinsic Validity - We are referring to
didtosyamaadto kay devisee because as owner of the building Forms and Solemnities that must be complied with in
from that time on, he is already entitled to the income from order for the will to be valid. Because our laws
the building. provide for certain formalities and requirements that
should be complied in the execution of wills.
Article 794. Every devise or legacy shall cover all the interest
which the testator could device or bequeath in the property For example, if we are talking of Notarial Wills, how do we
disposed of, unless it clearly appears from the will that he know if it is valid as to form? If it is in writing of course,
intended to convey a less interest. (n) attested, the number of witnesses, contains acknowledgment,
contains paging etc.
The law says whatever interests that the testator may have
over the property devised or bequeathed, that is also included
If we are talking of those matters, we are talking of the formal
in the devise or legacy. If for example, I hereby to devise Aa
parcel of land etc. All his interest to the land are given or validity of the will.
included in the devise. If 1/4 langiyang ownership sa land, so
angiyangmaconveypud is only only 1/4. So only the extent of 2) Intrinsic Validity – refers to the legality of the
his rights or interest unless it clearly appears that he is giving provisions in the instrument, contract or will.
more or giving less. Like he is the owner of the land but he is Meaning, we are talking of the content of the will.
only giving the usufruct. Or he is only the owner of 1/4 but he
is giving the entire land, is that possible? Yes when go to Questions as to whether or not the provisions in the will are
devisees and legatees. valid, whether or not the heir to whom the testator has given
his properties is qualified to inherit, whether or not there is
Exceptions of 794 invalid disinheritance, there is an impairment of the legitime,
whether or not the testator owns the property disposed of in
GR: It shall only cover the interest which is included in the
devise or legacy the will – those are the matters pertaining to the intrinsic
validity of the will.
(1) if it clearly appears that the testator intended to convey a
lesser or greater interest FORMAL OR EXTRINSIC VALIDITY
(2) 91? As we said, Article 795 refers only to the extrinsic validity of
the will from the viewpoint of time. There are two viewpoints
But we will only discuss that when we go to legacies.
that we have to consider to determine whether the will is
formally or extrinsically valid.
1) FROM THE VIEWPOINT OF TIME (Article 795) – it

depends upon the observance of the law enforced
at the time it is made, meaning at the time of the
execution of the will. (Rationale: Because it is at that
JULY 17, 2014 time when theevils in the execution of the will are
present.) Usually, the formalities in willsare intended
Article 795. The validity of a will as to its form depends to prevent fraud, perjury, to assure that the testator
upon the observance of the law in force at the time it is was not forced, under duress, vice of consent. So
made. (n)
those evils are present at the time of the execution of
the will. So we have to follow the form prescribed at Basic laws as to the formalities that must be
the time of execution. observed:
It is enough that the testator complies with those laws

A) Article 17 of the New Civil Code
because we cannot possibly or no one for that matter, can
possibly predict what laws will govern in the future. Article 17. The forms and solemnities of contracts, wills, and
other public instruments shall be governed by the laws of the
Example: The testator made the will in 1940, then the law country in which they are executed.
enforced in 1940 must be observed.
When the acts referred to are executed before the diplomatic
ENRIQUEZ VS ABADIA or consular officials of the Republic of the Philippines in a
foreign country, the solemnities established by Philippine laws
When did the testator execute the will? September 6, 1923 shall be observed in their execution.
What kind of will? Holographic Will.
Ruling: Not valid. Because at the time the will was executed, Prohibitive laws concerning persons, their acts or property, and
holographic wills are not yet recognized or allowed. Our laws those which have for their object public order, public policy
allowed holographic wills only on Aug. 30, 1950 (New Civil and good customs shall not be rendered ineffective by laws or
Code).Before the effectivity of the Civil Code, holographic wills judgments promulgated, or by determinations or conventions
are not yet recognized. agreed upon in a foreign country. (11a)
The will was submitted to probate on January 24, 1952, will it Article 17 gives us the Law of the Place of Execution (lex loci
not cure the defect? No. If a will is void at the time of celebrationis); law of the place of celebration or execution.
execution, it remains to be void all throughout.
Nationality
The legislature cannot validate a void will. Place of
of the Governing Law
execution
Testator
The will can be cured if republished or re-executed by the Pursuant to Article 17, Law
testator himself. Filipino Philippines of the Place of execution,
hence, PHILIPPINE LAW
ABADA VS ABAJA Pursuant to Article 17, 2nd
Paragraph, hence,
When the testator died, the New Civil Code already took effect. PHILIPPINE LAW
Under the New Civil Code, Notarial will has to be Abroad, (Because even if you are
acknowledged. executed physically abroad but, by
What kind of will? Notarial will before the fiction of law, you are
What formal requirement was alleged to be violated? Filipino Diplomatic or considered to have
The will was not acknowledged. Consular executed the will in the
Ruling: Valid. At the time of the execution of the will, the Official of the Philippine Soil. Our
governing law was Code of Civil Procedure which does not Philippines Diplomatic or Consular
require the acknowledgment of the will. Offices abroad are actually
extension of Philippine
Applying Article 795, we only have to observe the law at the territory
time of the execution of the will. Filipino Abroad Article 17, Law of the Place
(e.g. US) of Execution. So if he is in
Can any subsequent changes in the law affect the validity of the US, he may comply with
the will?As long as the will is valid at the time of execution, the US laws insofar as the
any subsequent legislation could not affect the validity of the FORMALITIES of the Will
will. are concerned
Alien Abroad Article 17, the Law of the
The legislature cannot invalidate a valid will. (e.g. US) Place of Execution, then US
laws
2) FROM THE VIEWPOINT OF PLACE OR COUNTRY

– B) Article 815 – Filipino in a foreign country and
We have several instances wherein we will have to executes his will abroad
determine what law will govern in each of these
situations. Article 815. When a Filipino is in a foreign country, he is
authorized to make a will in any of the forms established by
the law of the country in which he may be. Such will may be
probated in the Philippines. (n) D. Article 817 – Foreigner who executes his will in the
Philippines.
Pursuant to Article 815, he may comply with the law of the Article 817. A will made in the Philippines by a citizen or
place where he may be (e.g. he is in the US, then he may subject of another country, which is executed in accordance
comply with the laws of the US). Actually, if you analyze this, with the law of the country of which he is a citizen or
this is the same as Article 17, because the law of the place subject, and which might be proved and allowed by the law
of his own country, shall have the same effect as if executed
where he may be, is the law of the place of execution.
according to the laws of the Philippines. (n)
Also, under Article 815, it says, “is authorized to make a will in
any of the forms established by the law of the country in which a. The Law of the Place of execution, Philippine
he may be”. Law (Article 17)
b. The Law of his Country or Nationality (Article
“Authorized”, meaning you are permitted. This connotes that
817)
this law of which you are authorized or permitted to comply is
just another or secondary law, there is a law which you must So if you would notice, if you are a Filipino, you have actually
principally comply with, and that is,since you are a Filipino, lesser choices compared to a foreigner. And if you are in the
then Philippine Law. Philippines, whether a Filipino or a Foreigner, you have lesser
choices than when you execute your will abroad.
In short, if the testator is a Filipino Citizen who executes his
will abroad, he may follow: So if you combine that, if you are a Filipino and you execute
your will in the Philippines, you only have one choice –
a) The law of the place of execution (Article 17) Philippine Law. And if you are a foreigner and you execute
b) The law of the place where he may be (Article your will abroad, you have the most number of choices – you
815) have four.
c) Philippine Laws, also pursuant to (Article 815)
INTRINSIC VALIDITY
Again, intrinsic validity pertains to the contents of the will, the

C) Article 816 – Foreigner who executes his will abroad
legality of testamentary provisions, the capacity of the heirs to
Article 816. The will of an alien who is abroad produces succeed etc.
effect in the Philippines if made with the formalities
prescribed by the law of the place in which he resides, or Just like extrinsic validity, we also have to observe two
according to the formalities observed in his country, or in viewpoints:
conformity with those which this Code prescribes. (n)
1) FROM THE VIEWPOINT OF TIME:
So under Article 816, he has several choices: Article 2263 of the New Civil Code
a) The law of the place where the will is executed Article 2263. Rights to the inheritance of a person who
(Article17) died, with or without a will, before the effectivity of this
Code, shall be governed by the Civil Code of 1889, by other
b) The law of the place of his residence or
previous laws, and by the Rules of Court. The inheritance of
domicile in which he resides (Article 816); so if
those who, with or without a will, die after the beginning of
he is an American citizen, but a resident of Japan, he the effectivity of this Code, shall be adjudicated and
may comply also with the law of Japan distributed in accordance with this new body of laws and by
c) The law of his country or nationality(Article the Rules of Court; but the testamentary provisions shall be
816); so even if he is in Japan, he is an American carried out insofar as they may be permitted by this Code.
citizen, he may also comply with the laws of US Therefore, legitimes, betterments, legacies and bequests
insofar as the formal requisites are involve shall be respected; however, their amount shall be reduced if
d) In conformity with those which this Code in no other manner can every compulsory heir be given his
prescribes;Philippine Law full share according to this Code. (Rule 12a)
EXERCISE: If the testator is an American Citizen, who is

residing in Japan, and made his will in Germany, what law can So, Article 2263 says that if a person dies, whether with or
be complied with? Any of the laws of US, Japan, Germany without a will, before the effectivity of the New Civil Code,
and Philippine Law, pursuant to Article 816. then the succession shall be governed by the law before the
New Civil Code. If he died after the effectivity of the New Civil whatever may be the nature of the property and regardless
Code, then the estate shall be adjudicated and distributed in of the country wherein said property may be found. (10a)
accordance with the New Civil Code. So based on Article 16:
So in short, if we are talking of intrinsic validityfrom the General Rule: LEX SITUS - Real property as well as personal
viewpoint of time, it isthe law enforced at the time of property is subject to the law of the country where it is
death of the decedent. Why upon death? Because, intrinsic situated.
validity refers to the provisions, the distribution, the right to
Exception: 2nd paragraph (Conflicts Rule) - intestate and
inherit, qualification to succeed, and it is at the time of
testamentary successions, both with respect to the:
death thattransmission happens.
1) order of succession and
Application: For example, before the NCC illegitimate children
were not recognized to have successional rights, they were not
2) to the amount of successional rights and
given legimites. But upon the effectivity of the New Civil Code,
illegitimate children already have legitimes; and under the 3) to the intrinsic validity of testamentary provisions
NCC, if a compulsory heir in the direct line is omitted from the
will the will is invalid because we have what we call preterition. They shall all be regulated by the NATIONAL LAW of the
decedent, whatever may be the nature of the property and
When there is preterition, the will shall be disregarded regardless of the country wherein said property may be found.
and then the estate shall be distributed by legal
succession. That is insofar as intrinsic validity from the viewpoint of place
or country.
Assuming the testator in 1948 executed a last will and
testament. In that Will he gave all his properties only to his CAYETANO VS LEONIDAS
legitimate children and spouse. He did not give anything to his
illegitimate child. There was a question there as to preterition because
appearing from its face, the compulsory heirs are omitted from
Question: Is the will valid intrinsically? the will. Under our laws, preterition results to the annulment of
the institution of heirs and what will happen would be
Hint: What did we say about intrinsic validity from the intestacy, the will shall not be given effect and then the estate
viewpoint of time, what law shall govern? The law enforced at shall be distributed under legal succession. In other cases
the time of death. Just remember the viewpoint in time when decided by the Supreme Court, when the will from its face
we are talking of intrinsic validity. suffers from preterition, the court will look into the intrinsic
validity of the will and determine whether or not indeed there
Answer:It depends as to the time of death of the
was a preterition, because, if there is preterition, it would be a
decedent. If he died before the effectivity of the NCC, the will
waste of time, effort, resources of the court to go to the
is valid because at that time when transmission happens there
question whether or not the will is valid as to form, when even
are no legitimes required for illegitimate children, so it can just
if it valid as to form and subsequently, it still cannot be given
be omitted. But if he died after the effectivity of the NCC, then
effect because of preterition.
the will would not be valid, there would be a preterition
because at that time, illegitimate children are already entitled When we saypreterition we are talking of the intrinsic validity
to legitimes. And in the will, since they are excluded, the will of the will.
suffers from preterition, so the will is not valid.
1st issue: So in that case, the court said that even if from its
2) FROM THE VIEWPOINT OF PLACE OR COUNTRY face, the will suffers from preterition, the court did not
automatically deny the probate of the will. WHY?
Related Article:
Ruling: So even if from the face of the will there appears to be

Article 16. Real property as well as personal property is
subject to the law of the country where it is situated. preterition and therefore ordinarily, it should be denied probate
outright, but the court did not automatically deny the probate
However, intestate and testamentary successions, both with because it still looked into the National Law because the
respect to the order of succession and to the amount of decedent here is a foreigner. But if he was a Filipino, the will is
successional rights and to the intrinsic validity of automatically void because of preterition. So since the
testamentary provisions, shall be regulated by the national
decedent is a foreigner, we have to look into his National Law
law of the person whose succession is under consideration,
and see whether or not in his national law there is really a 2) Jurisprudence
preterition, but in his national law they do not observe the 3) Authorities, experts
system of legitimes, meaning the decedent or the testator can
Exceptions:
just deprive his children, spouse of their legitimes and still it
would be valid. So here it is the national law of the decedent 1) If the foreign laws are within the actual knowledge of
which should be applied and not Philippine Law. the court
2) When the court has considered before these laws in a
2nd issue: The system of legitimes is actually a matter of public previous case and the parties do not oppose as to the
policy and good customs here in the Philippines, so why do we consideration of the court as to the existence of the
allow a foreigner to just disregard that? Why can we not apply foreign law.
our system of legitimes.
MICIANO VS BRIMO
Ruling: Public policy and Good customs are not included in the
determination of validity of the will when it comes to There was a partition made by the testator in his will and there
foreigners. Even if we have that in our system of legitimes, was an opposition to that partition because the partition was
when Congress enacted Article 16, they left the determination not in accordance with the Turkish laws. It was contended that
to the National law of the decedent. So the specific provision the partition made by the testator in his will was not valid
must apply to the general ones. So in short, they are because it is not in accordance with Turkish Laws; according to
exempted from our system of legitimes. the oppositor, it should be in accordance with Turkish Laws
because the decedent is a citizen of Turkey.
LLORENTE VS CA
The oppositor has to present evidence as to what are the laws
Llorente was formerly a Filipino citizen but he was naturalized in Turkey so our courts will be able to see whether or not the
later on. He died. So at the time of his death, he was already decedent really complied with Turkish Laws. But here, the
an American citizen. There are items here mentioned by the oppositor was not able to present evidence as to what are the
Supreme Court like divorce, marriage, the execution of the will, laws of Turkey.
his death.
So in the absence of evidence, what should be applied?
Issue: What law shall govern these items?
Apply the DOCTRINE OF PROCESSUAL PRESUMPTION.
Ruling: When it comes to death and will, these incidents are
governed by his national law at the time of his death even if he So to determine whether or not the will is valid, we will now
made the will before he became naturalized, but if we are measure the will vis-à-vis the law of the Philippines which is
talking of the intrinsic validity of his will we should refer to his presumed to be the same as the laws of Turkey.
national law at the time of his death.
So in this case of Miciano vs Brimo, even if the decedent is a
PCIB VS ESCOLIN foreigner our courts apply Philippine Law under the Doctrine of
Processual Presumption. This is one exception to the general
So we are settled that, under Article 16 the intrinsic validity of rule that under Article 16, the national law of the decedent
testamentary provisions shall be governed by the National Law shall govern.
of the decedent. Now if that is the case, do our courts take
judicial notice of these foreign laws? TESTATE ESTATE OF SUNTAY
So how would the courts know? What is the procedure if for What are the matters that must be proved in a re - probate
example a decedent is a foreigner and so the court will have to proceeding?
apply his national law, how can the court do that if our courts
Re – probate proceeding – happens if the decedent left a will
do not take judicial notice of foreign laws.
example, leaving properties outside of the Philippines and
General Rule:Our courts do not take judicial notice of foreign within the Philippines. So he can have his will probated in
laws. If you alleged that these are the foreign laws applicable, China. So once the probate court in China allows the probate
you have to prove that law like any other fact. of the will, it does not follow that the court in the Philippines
will adopt such decision and distribute the properties in
What are examples of proof? You can present their: accordance to will. So that is why, it has to be probated again
(re – probated).
1) Authenticated Copy of their Civil Code
We do not automatically honor that will as probated in China. The Conflict of Laws Rule applies to Christensen because was a
So among other things, of course, you have to prove that the resident or domiciled in another country even if he was a
court, when the probate proceeding was held in China is really citizen of California. The internal law would apply only to
a probate court. And also you have to prove that the citizens and residents of California. So we go back to the law
proceeding, the Rules of Court of China insofar as probate of of the domicile. His domicile is Philippines. But under our laws,
wills is concerned was followed. We have to look for the Rules it should be the national law of the decedent.
of Court in China insofar as probate of wills is concerned. That
must be proved by the petitioner in the Philippines during the What law should ultimately apply here?
re – probate of the will in the Philippines.
This is how it goes: So in the Philippines, we also have two set
For example you failed to prove that, so shall our courts of laws – our Conflict of Laws Rule and internal law. So
just presume that our Rules of Court is the same with pagingonsaatoang Conflict of Law napagkamatayni decedent,
the Rules of Court of China? he was a foreigner, so Article 16, his national law. Their
national law has also two sets of laws – internal law and
Supreme Court ruled that the Doctrine of Processual Conflict of Laws Rule, but because he was a domicile of
Presumption is not applicable if it involves procedural rules. another country but citizen of California, so we apply to him
the Conflict of Laws Rule. So balikdawsyasa Philippine Law.
Q: What is the consequence if there is no proof? (Since the Pagbaliknyasa Philippine Law, dilinanatosyaireferdidtosa
presumption is not applicable, should the will be allowed or Conflict of Laws Rule, we now refer him to the internal law of
denied?) the Philippines. So in the Philippines what is the internal law on
the matter, we have the system of legitimes. So we cannot
A: The will should be denied. In this case, the authenticated
again refer back to the forum. So that is what we call the
transcript of proceedings held in China cannot be deemed and
Doctrine of Renvoi. We now refer the matter to the law of the
accepted as proceedings leading to the probate or allowance of
forum, the internal law, because as we said, if we do
a will and, therefore, the will referred to therein cannot be
otherwise, it would be like an international football. The matter
allowed, filed and recorded by a competent court of this
will then be incapable of determination; the issue will be just
country.
tossed back and forth from one jurisdiction to the other. So
walaykahumanan. So that’s the Doctrine of Renvoi.
So that is the difference between the case of Miciano vs Brimo
and Testate Estate of Suntay. You cannot apply the
So it can apply here because there is a Conflict of Laws Rule in
Doctrine of Processual Presumption insofar as the
California, kungwalay Conflict of Laws Rule in California, dilina
procedural, the laws governing procedures in probate
to syamarefer back sa Philippines. Or assuming na nay
matters.
referring back perodilidiaysyamag.apply kay dilisya resident.
TESTATE ESTATE CHRISTENSEN
The Renvoi Doctrine will also apply for example the decedent
is a citizen of another country and has properties in another
He was a resident of the Philippines and a citizen of California
country or jurisdiction. There other countries namag.ingonna
at the time of his death. So under Article 16, insofar as the
the matter shall be governed by law of the place where the
intrinsic validity of his is concerned, we should follow his
property is situated. So diha, possible gihaponangRenvoi
national law.
Doctrine. Lex situs of the property is different from the place
What are the relevant laws in California regarding the estate of of the nationality of the decedent.
Christensen? Which one should be followed?
So this is in effect another exception to the general rule under
1) California Probate Code; the latter does not require to Article 16 that the national law of the decedent would apply.
observe the system of legitimes because they can just Because here, the application of the doctrine of renvoi,
dispose of their properties and the will in the form ultimately, we apply Philippine Law, not the national law of the
and manner they desire. So if we followed this rule, decedent.
the will of Christensen could have been given effect.
(Internal Law) SUBSECTION 2. Testamentary Capacity and Intent
2) Article 946 which provides that it shall be the law of
the domicile of the decedent. (Conflict of Laws Article 796. All persons who are not expressly prohibited by
Rule) law may make a will. (662)
So we are now referring to who has testamentary capacity.
Article 946 should be followed.
Actually, if you are asked what is testamentary capacity as What do we mean by “18 years of age”?
distinguished from testamentary power. Although in the Civil
Code, there is no specific distinction made between the two. In There are several theories to interpret this:
fact, testamentary power does not appear in the Civil Code.
1) Theory under the Spanish Law – you are 18,
They are used in the discussions interchangeably.
when your 18th birthday has already passed or
When you say testamentary capacity, it refers to the commenced. So meaning, pag once mag 18th birthday
naka, pwedenkamagbuhatug will. So example,
qualification of a person to execute a will, whether he possess
gianakka 5pm, does it mean namaghulat pa ta ug
the requisite qualifications. When you say testamentary
5pm para kamaka.executeug will? No, the law says as
power, it is the power to execute wills granted by the State to
long as you 18th birth day has commenced. So
its subjects.
pagbagtingsa alas dose on your 18th birth day, 18
naka, you can already execute a last will and
Because there are countries which do not grant their citizens
testament.
or subjects the power to execute wills. It cannot be given
2) Theory under the American Law –it is sufficient
effect even if they have made a will because there is no law in that the day preceding one’s birthday had already
their jurisdiction allowing them to execute wills. Although they commenced. So the day before your birthday nag
may have testamentary capacity, 18 sila, sound mind sila, commence na, pwedena.
perowalay power kay walay law allowing them. 3) Theory under the Civil Code – under the Civil
Code, you are already 18 years old 4 days prior to
There can also be testamentary power without testamentary your 18th birthday. The reason behind is that, under
capacity like here in the Philippines we have the New Civil the computation in the New Civil Code, a year
Code and it gives the privilege to execute wills. But if you are consists of 365 days. So for you to become
still 15 years old or nabuangka, although naatay NCC giving us considered 18, you must have accumulated 18x365
testamentary power, perowala kay testamentary capacity. days. Now in 18 years, naay leap
yearsanananahitabo. So masobraangdaysdiba. So in
But again in the NCC, they can used interchangeably because 18 years, pilaka leap years nahitabo since every 4
the NCC mentions only testamentary capacity it does not years man ang leap years? So four. So technically, 18
mention at all testamentary power. years old nka four days before your 18th birthday.
Under Article 796, as a general rule: ALL PERSONS, as long as So what theory should we follow in Succession? THE
not prohibited by law. SPANISH LAW, because our provisions in Succession had
their origin in Spanish Law.
The law says “PERSONS”, but we have natural and juridical
persons. Can natural persons execute wills? Of course YES. --naaynagpito, time out nadaw (KAY CAMILLE TO!
How about juridical persons, remember they can enter into HAHAHAHA)
contracts, can they execute wills? NO. Because Article 797 and
798 give us the requisites of testamentary capacity.
Under Article 797, at least 18 years of age; okay although a

corporation may reach even 100 years, pwedesya in this
sense, but under Article 798, soundness of mind. Only natural
persons can possess soundness of mind. So a juridical person
cannot. It has no physical existence. Therefore, only natural
persons can execute wills.
Article 797. Persons of either sex under eighteen years of JULY 24, 2014
age cannot make a will. (n)
Another requirement before a person can execute a will is
soundness of mind. How do we know if a person is of sound
Article 798. In order to make a will it is essential that the mind? We have Article 799.
testator be of sound mind at the time of its execution.
Art. 799. To be of sound mind, it is not necessary that the
testator be in full possession of all his reasoning faculties, or
So persons of either sex, Male or Female, including those in that his mind be wholly unbroken, unimpaired, or
between, they can execute wills. unshattered by disease, injury or other cause.
TORRES VS LOPEZ
It shall be sufficient if the testator was able at the time of
making the will to know the nature of the estate to be One suffering from senile dementia does not necessarily follow
disposed of, the proper objects of his bounty, and the that he is of unsound mind. – SOUND MIND
character of the testamentary act.
Now based on Article 799, we have two guidelines as to when What will constitute unsoundness of mind? What
can a person be considered of sound mind. stage?Complete/Advance senile dementia– like dili na
siya maka ila sa iyang mga anak or sa iyang mga properties or
The first paragraph is the NEGATIVE DEFINITION. The second
sa iyang mga short term memories,doubtful na ang validity sa
paragraph is the POSITVE DEFINITION. Article 799, first
will because it can no longer comply with second paragraph
paragraph means that the testator does not have to have a
under Article 799. – UNSOUND MIND
perfectly balance mind to be considered of sound mind. The
second paragraph provides for the guidelines. Here we have How about the fact that a person is placed under
three: guardianship? Is it conclusive as to his mental condition? No,
because there are several reasons why a person is placed
1) The testator must know the nature of the
under guardianship like minority, prodigality, under civil
estate to be disposed of – meaning the testator
interdiction. So not necessarily because of your mental
must have a sufficient recollection of his properties
condition.
and comprehend their kind and character, etc. At the
time he made the will, he must be aware of his
NEYRA VS NEYRA
properties. He must at least know that he has land,
house, cars, and jewelries. It not necessary that he Addison ’s disease – sleeping sickness. Persons affected with
knows or memorize everything, like how much cash
such disease get a good sleep. The mental faculty remains
he has in the bank, or in hand, title number sa lot.
unimpaired, partly due to the fact that on account of sleep
Etc.
they enjoy or necessarily receive the benefit of physical and
2) The testator must know the proper objects of
his bounty – he must be aware of those persons mental rest. Likewise are those affected with TB and insomnia,
who naturally supposed to have claim upon him. So they preserve their mental faculties. – SOUND MIND
when a person makes a will, he should know na who
BALTAZAR VS LAXA
are those persons to whom he would be giving his
properties. He should know na naa pa syay anak or
Supreme Court applied the general rule that a person is of
asawa. Kay kung halimbawa naa pa syay asawa or
sound mind. It says that definitely, she was able to meet the
anak unya nakalimot sya, then he gave that to his
neighbor. Would the will be valid? Can he be three requisites under the 2nd paragraph of Article 799. She
considered of sound mind? No, because he was not made some requests about how the rights are to be reserved
aware of the proper objects of his bounty. Even if he upon her death, how she acquired the properties, to whom she
is not insane, but he is not aware of the proper will be giving the properties. So being forgetful is not
objects of his bounty, he can be considered of equivalent to an unsound mind.
unsound mind.
3) The testator must know the character of the Other instances where the SC considered as SOUND
testamentary act – meaning he must understand MIND:
that he is executing an instrument which will dispose
of his property upon his death and which he may SANCHO VS ABELLA - Senile, deafness, poor memory: not
revoke at any time. Here, dapat kabalo sya unsa ang equivalent to an unsound mind.
nature sa document na iyang gi.execute. Kabalo sya
na this document covers all his properties, and that ALSUA – BETTS VS CA - Weakness of mind or partial
the transfer of his properties to the persons named in imbecility from the disease of the body or from age: not
the document will have effect upon my death; that I unsound mind
can revoke this document at any time. Meaning, he
must have ANIMUS TESTANDI. AVELINO VS DELA CRUZ – is a blind person considered of
unsound mind? NO. they are even considered as having a
So if you are asked any question pertaining to the mental testamentary capacity and therefore they can execute a will;
condition of the testator and the issue is whether or not the but he has to comply with Article 808
will is valid, whether the testator was of sound mind at the
time of its execution. You should be able to discuss these three BAGTAS VS PAGUIO – Failure of memory, Paralysis
requisites.
CAGUIOA VS CALDERON – insomnia 1. IDIOTS – IQ average is 25

a. conginetally and intellectually deficient sila.
YAP TUA VS YAP CA KUAN – Tuberculosis b. they cannot take care of their bodily needs
and they cannot be trained
SAMSON VS CORRALES – diabetes, the testator is alleged to c. these persons for the purpose of succession
be in a comatose situation for several days. But it was not are considered to be of sound mind. So any
alleged that he made the will after he recovered from will executed by them would not be valid.
2. IMBECILES – IQ average of 26 – 50
comatose. The Supreme Court said that it does not affect the
a. They are mentally deficient due to disease
testamentary capacity in view of the positive statement of the
b. They can be trained to take care of their
witnesses that he was conscious and able to understand and bodily needs only.
able to communicate his desires. c. These persons, for the purpose of
succession, are considered to be of unsound
CARILLO VS JAOCOCO – cerebral hemorrhage: mind.
3. MORONS – IQ average of 51 – 70
HERNAEZ VS HERNAEZ – old age a. They can learn, reading, writing and simple
arithmetic
Weird, violent temperament – SOUND MIND b. They can be self-supporting
c. Under the law of succession, they can
Passions and Prejudices - only when it borders on delusions, execute wills because, if they can read and
na iyang ginapang istorya kay out of this world na gyud sya – write and do something simple math, they
can understand. So they are legally
UNSOUND MIND
considered of sound mind. So they can
validly execute wills.
DRUNKINESS OR DRUG ADDICTION – it depends.
As to the point in time that we have to consider:
If excessive, like hubog na kayo na wala na ka kabalo sa
imung ginabuhat sa imung last will and testament, in that DOROTEO VS CA
case, pwede sya ma.consider as UNSOUND MIND.
Under the Civil Code, due execution includes a determination
Drug addiction – kung HIGH na kayo ka, like ang 80 years old of whether the testator was of sound mind at the time of his
mag mukhang 18, sexy kayo – may be considered as execution and that he freely executed the will and was not
UNSOUND MIND acting under duress, fraud, undue influence and that would be
a genuine and not a forgery and that he was in the proper
A person with epilepsy, can he execute a will? Yes, as long as testamentary age and not expressly prohibited by law from
executing a will.
the will is executed not during the epileptic attack.
So the qualifications are required AT THE TIME OF THE
Instance where the Supreme Court considered as
EXECUTION OF THE WILL.
UNSOUND MIND:
TORRES VS LOPEZ
The rule here is absolute/actual insanity or unsoundness of
mind is not also necessary to constitute TESTAMENTARY SC held that each case rests on its facts and must be decided
INCAPACITY. In the same manner na, to be considered of by its own facts.
sound mind, you don’t have to possess a perfectly balance
mind; but also to be considered of unsound mind you are not So there is no hard and fast rule to determine whether or not a
person is really of sound mind or not of sound mind. But we
also required to be absolutely or totally or actually insane.
have the cases and Article 799 as our guide.
Example: you are unconscious, and the will was executed
ARTICLE 800. The law presumes that every person is of
during that period in time when you were unconscious. So how sound mind, in the absence of proof to the contrary.
could you possibly execute a will in that condition? So the will The burden of proof that the testator was not of
would not be valid because in that case, a person could not sound mind at the time of making his dispositions is on the
have ANIMUS TESTANDI. person who opposes the probate of the will; but if the
testator, one month, or less, before making his will was
HOW ABOUT ACCORDING TO IQ: are there instances when publicly known to be insane, the person who maintains the
because of your IQ, you are to be considered as unsound validity of the will must prove that the testator made it
during a lucid interval. (n)
mind.
Article 800 lays down the general rule – SOUNDNESS OF
MIND.
THREE GROUPS ACCORDING TO IQ:
Why is that the general rule? Because it is the usual course or nature – so we presume that he was not of
nature of things. sound mind when he executed the will.
c. So what if in reality he was cured, so when
What is now the consequence of this general rule? he made the will, dili na sya insane. Then it
Legal Significance – the proponent of the will does not have is on the proponents of the will to prove na
to prove that the testator was of sound mind at the time of he was not insane. Pero ang presumption
execution. It is presumed. The oppositor who opposes the here is that, insane sya. Clear and
probate of the will based on this ground should prove that the convincing evidence ang kaylangan to prove
testator was not of sound mind at the time of the execution of na he was of sound mind.
the will.
QUANTUM OF PROOF REQUIRED: CLEAR AND So, since we are talking of burden of proof, we have to prove
CONVINCING EVIDENCE, that indeed the testator was not of that the testator was of sound mind, what are the admissible
sound mind at the time of the execution of the will. pieces of evidence to prove that the testator was of sound
mind at the time of the execution of the will.
In the second paragraph, there is also a situation when the
general rule is as to the UNSOUNDNESS OF MIND. What evidence may be presented to prove the
soundness of mind of the testator?
1) If the testator, one month or less before
making his will, was publicly known to be 1) Testimony of the Notary Public - RAMIREZ
insane. So the occurrence of the insanity must be VS RAMIREZ, what is the consequence if a
BEFORE the execution of the will. Kung after na, it document is acknowledged before the notary
does not matter. public? Becomes public document and it enjoys
a. And it should be 1 month or less before. So the presumption of regularity. The oppositor has
mas duol duol sya at the time of the to present clear and convincing evidence to
execution of the will. If it is 1 year or less, overturn the presumption of that regularity.
dili n sya apil – walay presumption. And his Ordinarily in succession, in probate of wills, the
insanity must be publicly known. testimony of the Notary Public is entitled to great
b. The general public must know na kaning weight because he is a public officer, the conduct
bataa ni buangon ni sya. of his duties presumes that he performs with
2) In the case of TORRES VS LOPEZ, if the testator regularity. But in this case, why did the SC refuse
was JUDICIALLY DECLARED INSANE before to give that kind of weight in the testimony? Here
making a will. the Notary Public could not positively or
a. When could this happen na naay judicial categorically declare to the court that the
declaration of insanity? – Special testatrix was of sound mind. His testimony was
proceedings for the hospitalization of the vague, evasive. Because that was the nature of
insane person. Dapat naay judicial the testimony of the Notary Public, then it could
declaration. not be given great weight.
b. Same with guardianship – Court declaration a. Duty of the Notary Public – to ascertain
3) Presumptions under the RULES OF COURT. that the testator understood the
a. Under RULE 131, section 3 (ee) – xxx That contents of the document; that he
a thing once proved to exist continues executed the document free from vices
as long as is usual with things of the of consent.
nature xxx b. So if you cannot categorically declare to
b. So under this 3rd situation, if it is an insanity the court that that was the condition at
of permanent or general nature, which is the time the will was acknowledged,
shown to have existed at one time, it is then the general rule that the testimony
presumed to have continued. Example – a of the notary public is entitled to great
person since birth is known to be insane, weight does not apply.
then upon his death, a last will and 2) Testimony of attesting witnesses – this
testament is presented allegedly executed by applies to Notarial Wills because holographic wills
such insane person. So what is the do not have attesting witnesses. Testimony is
presumption regarding this will? Do we apply entitled to great weight because the attesting
the general rule that at the time he made witness is present during the execution of the
the will he was of sound mind that the will. By attesting the will, the witness is able to
burden of proof rests upon the oppositors? see mentally the demeanor of the testator during
Here it was already shown at some point in the execution of the will, so he can conclude as
time that he was not of sound mind, and it to the mental condition. However, for it to be
was his nature. So the presumption under entitled to great weight, it must be reasonable
the rules of court is that, that nature and unbiased.
continued because it was consistent with his
3) Testimony of other witnesses –example, the Article 803. A married woman may dispose by will of all her
attesting witnesses are no longer present during separate property as well as her share of the conjugal
the probate of the will, can other witnesses partnership or absolute community property. (n)
testify? Yes, they can also be admitted, their
testimony will also be admissible. So Art 802 and 803 talk of a married woman. But how about a
a. Witnesses present during the execution married man? Can a married man make a will without the
of the will may testify to the mental consent of the wife?
condition of the testator but they must
state the facts or grounds upon which They need not mention of the married man because it has
they based their opinion (Monquera vs been recognized that the married man may dispose by will of
Borromeo) his property. He may execute a will.
4) Testimony of the attending physician –
SAMSON VS CORRALES, insofar as the And also, can he dispose his property by way of will? Yes. Art
physician is concerned, his testimony should be 97 of the Family Code.
given highest in regard if he was present during
the execution of the will. In this case, the doctor Article 97. Either spouse may dispose by will of his or her
merely gave is professional opinion or interest in the community property. (n)
speculation, he was not the attending physician.
The attesting witness positively declared that the So the law make it clear, the right of the woman to make a will
testator was in good mental condition. So as even without the consent of their husband.
against the testimony of the doctor who was not
the attending physician and the testimony of the So, what may she disposed in a will? Her separate property
attesting witnesses, the court gave credence to and her share in the conjugal partnership. What if the spouse
the testimony of the latter. disposed of the entire conjugal partnership or the absolute
community? Valid only as to the share of the spouse, the
Article 801. Supervening incapacity does not invalidate an testator/testatrix. Although in the case of Balanay, it was valid
effective will, nor is the will of an incapable validated by the because there was renunciation made by the husband of the
supervening of capacity. (n) partition made by the wife.
This article speaks of the Principle of Supervening Article 804. Every will must be in writing and executed in a
incapacity or capacity. Remember that soundness of mind language or dialect known to the testator.
and testamentary capacity is required at the time of the We are now talking of wills.
execution of the will. So, even if prior to the execution, the
testator was not of sound mind, as long as when he made the What wills are recognized here in the Philippines?Notarial wills
will, he was already of sound mind, then the will is valid. and Holographic wills. Every will should be in writing.
Noncupative wills - These are those orally made by the testator
If after he made the will, he became insane, would that affect hence they are void.
the validity of the will? NO. The will would still remain to be
valid. The supervening incapacity does not invalidate an “Every will must be in writing”
effective will. What kind of writing? It must be distinguished.
Now, if the will was executed at the time when the testator If Notarial wills – any kind of writing – handwritten,
was not of sound mind, the will is void. typewritten, computerized, gunting2 na mga letters
If Holographic wills – it has to be in the handwriting of the
So what if, the testator made a will when he was insane,“Last testator.
will and testament”, and he made several dispositions and then
later on, he was cured, and he discovered that he made a will. Whatever kind of material is used – paper, cloth, wood,
So he read his will, and he was so overwhelmed by what he cement as long as it is not written on water several pages, it
read, and so he decided to keep that document as his last will does not matter.
and testament. Is the will valid? No. Article 801 provides xxx
“nor is the will of an incapable validated by the supervening of “Language or dialect known to the testator”
capacity.” What if the testator is a bisaya and he made a will in English
and mali mali gyud ang grammar sa iyang will. Is that valid?
So what happens now to the will? Kung gusto jud diay niya YES, the testator does not have to be proficient in language
kato jud iyang will kay gwapo kayo pagkabuhat nia? There is a used, as long as he can express himself. As long as nakasabot
proper procedure for that, we call it “Republication”. We sya sa iyang gma gipangsulat didto.
should follow the proper procedure on Republication.
Article 802. A married woman may make a will without the How about if the first paragraph is in English, then the second
consent of her husband, and without the authority of the paragraph is in Tagalog, and the 3rd paragraph is in Ilonggo, it
court. (n) that valid? Insofar as the language requirement is

concerned, there is a presumption that the testator in his lifetime knew only the Igorote dialect, that presumption
knew the language or dialect used in the will. was wholly contradicted or destroyed.
What would be the consequences of that presumption? JAVELLANA VS JAVELLANA

If you execute a last will and testament, you don’t have to The will was written in Spanish. Can we apply the
state in the will that “this will is in a language or dialect known presumption? No such presumption can arise where, as in the
to the testator”. The law presumes that. There is no case at bar, the will was executed in Spain, while the testator
prohibition to state that, but it is not required by law. Also in is a Visayan although residing in San Juan, Rizal at the time of
the attestation clause, it is not one of the 4 statements that his death.
must be stated.
So we can conclude that it is not automatic that the
What if an oppositor would allege that the will is not in the presumption will arise but also apply the cases where the
language known to the testator? What is now the remedy? circumstances of the testator during his lifetime were really
You will have to prove by extrinsic evidence or evidence different from the language used in the will.
aliunde. For example we have here a last will and testament in
French, and I oppose the will on the ground that the testator Take note that insofar as the language requirement is
did not understand French. The petitioner/proponent may concerned, there is no statutory requirement that it should be
present evidence to show that indeed this will is in a language stated in the will. As a consequence of this, the fact that the
known to the testator. As proof I have here a letter written by language used in the will was known to the testator can be
the testator in French saying Bon Appetite!So that is actually proved by evidence aliunde or extrinsic evidence.
and intrinsic evidence, evidence outside of the will that can be
used to prove. But there is actually no need to present evidence aliunde in the
first place because we have the presumption. That lack of
ABANGAN VS ABANGAN evidence may be cured by the presumption of law.
She made a will in Cebuano, but she resided in a neighboring
locality. Was there evidence presented showing that indeed TIPS: In the exams, tan.awon ninyo ang language used in the
she understood the dialect of Cebu? There was no evidence will. Naa bay gihatag sa facts sa case relating to the
presented to show that she knew the dialect of Cebu aside circumstances of the testator; the language used in the will
from the fact that she live in the neighboring locality. And was French, the testator was B’laan, and he resided in the Mt.
there was also no evidence presented to the contrary. So in Apo, then naay oppositor. Is the will valid? No. Facts are
that case, we apply the presumption that the testatrix knew contrary to the will. So you may safely answer na, even if
the language used in the will. there is such a presumption the presumption did not arise
using the case of Javellana. Or even if the presumption did
REYES VS VIDAL arise, it was only contradicted or destroyed because the record
The last will and testament was in Spanish language. Was stands on the contrary and there is no connection at all
there testimony presented to show that the testatrix spoke and between the language used in the will and the circumstances
knew Spanish? There was no testimony of witnesses to the of the testator as discussed in the case of Acop.Pero kung ang
effect that the testatrix knew and spoke the Spanish language. problem silent lng, wala syay gihatag na contrary evidence, so
But the records of the case would show that she was a Spanish you can apply the presumption.
mestiza and then she was married to a Spaniard, she made
several trips to Spain, and she wrote letters in Spanish. So How about if the will is just interpreted. So the language used
those circumstances would give rise to the presumption that in the will is Chinese and the testator did not know Chinese but
the testatrix knew the language in which the will was written. it was interpreted and explained to him. Is the will valid?
No evidence was presented to the contrary. SUROZA VS HONRADO –the Supreme Court held that this
lack of knowledge cannot be cured by interpretation or
explanation of the contents to the testator. Why? Because
ABADA VS ABAJA whether or not the interpretation or explanation was
Oppositors alleged that nowhere in the will which states that understood by the testator, you would never know, the
the testator knew the language or dialect used in the will. SC testator is no longer around. So the best safeguard is that the
ruled that even if there was no statement at all to the effect language used must be known to the testator.
that the testator knew the language used in the will, there
were pieces of evidence or circumstances showing that Abada In a case, it was mentioned “this last will and testament was
during his lifetime he used to gather with Spanish – speaking explained and interpreted to the testator”. So by that phrase
people. The presumption is that he knew the language used in alone in the will, you are already warned that the will was in a
the will. language not known to the testator. Why? Why would you
interpret or explain if the language is already known to the
ACOP VS PIRASO testator. So the SC said that it is very clear that when you
The will was written in English and executed in the city of need an explanation or interpretation, the language used in
Baguio. Can we apply the presumption? No,the presumption the will was not known to the testator. And therefore the will is
was rebutted. Records show a positive proof that the decedent not valid
written in English, which was not known to the Igorot testator,

How about the attesting witnesses in a Notarial Will? Are they is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).
required to know the language of the will? Insofar as Notarial
Wills are concerned, the will is the act of the testator; the One case also decided by the SC that it was written in the will
attestation clause is the act of the witnesses. Technically, the
“that this will was interpreted and explained to the testator
attestation clause is not a part of the will, it is separate.
and that he confirmed that he understood etc. etc.” The SC
So walay pakialam si testator sa attestation clause, in the same said that phrase alone should guard us that the will was not in
manner, walay pakialam ang mga attesting witnesses sa will. the language or dialect known to the testator. No need for an
So even if the will is not in a language or dialect known to the interpretation if the language in the first place was known to
attesting witnesses, or even if the attestation clause, the the testator. The SC said the will is not valid because it failed
language used is not known to the testator, the will is still to comply with the language requirement under Art. 804.
valid.
How about the attesting witnesses if we are talking of a
How about the witnesses themselves, are they required to
notarial will? Are the attesting witnesses required to know the
know the language used in the attestation clause? Ideally, they
should know the language. language used in the will? There is no such requirement.
Remember the will is the act of the testator, the attestation
clause is the act of the witnesses. The testator is not required
How about wala sila kabalo pero gi.explain or language used in to know the language used in the attestation clause, the
the attestation clause? It is enough that the contents were witnesses also are not required to know the language used in
interpreted or explained to them sa attestation clause. the will.
AUGUST 4, 2014 How about the witnesses themselves in the language used in
the attestation clause? Ideally, they should know. The law says
The language to be used in an attestation clause in the will under art. 805, an explanation or interpretation would be
should be known to testator. It should be in the language or sufficient. It is not a fatal defect. The language of the
dialect known to the testator. attestation clause can be explained to the witnesses.
Suroza v. Honrado: What if the language used in the will Article 805. Every will, other than a holographic will, must be
was already explained or interpreted to the testator? Would subscribed at the end thereof by the testator himself or by the
that be sufficient? NOT SUFFICIENT because the law says testator's name written by some other person in his presence,
the will must be in the language or dialect known to the and by his express direction, and attested and subscribed by
testator. No amount of explanation or interpretation can cure three or more credible witnesses in the presence of the
testator and of one another.
the defect if it not in the language or dialect known to the
testator. Ngano man dili pwede? Because how do we know if
The testator or the person requested by him to write his name
the interpretation was correct or the explanation was really
and the instrumental witnesses of the will, shall also sign, as
understood by the testator. It could only be the testator who aforesaid, each and every page thereof, except the last, on the
could confirm but he is already dead so he cannot answer or left margin, and all the pages shall be numbered correlatively
confirm anymore. To be very sure the language itself must be in letters placed on the upper part of each page.
known to the testator.
The attestation shall state the number of pages used upon
In this case, respondent judge, on perusing the will and noting which the will is written, and the fact that the testator signed
that it was written in English and was thumbmarked by an the will and every page thereof, or caused some other person
obviously illiterate testatrix, could have readily perceived that to write his name, under his express direction, in the presence
the will is void. 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.
In the opening paragraph of the will, it was stated that English
was a language "understood and known" to the testatrix. But
in its concluding paragraph, it was stated that the will was If the attestation clause is in a language not known to the
read to the testatrix "and translated into Filipino language". (p. witnesses, it shall be interpreted to them. (n)
16, Record of testate case). That could only mean that the will
was written in a language not known to the illiterate testatrix
and, therefore, it is void because of the mandatory provision of It gives us the Requirements of a Notarial Will aside from
article 804 of the Civil Code that every will must be executed in Art. 804 (which applies to both notarial and holographic will).
a language or dialect known to the testator. Thus, a will Failure to comply with any one of the requirements mentioned
under Art. 805 will affect the will and will give rise to the
invalidity of a will. All these requisites under art 805 are of The evidence of record satisfactorily discloses that Cristina
equal importance although in some cases, the court may allow Valdes, deceased, placed her cross against her name, attached
a will on the ground of substantial compliance but that’s the by some other person to the instrument offered for probate
which purports to be her last will and testament, in the
exception. The general rule is that all of the requisites must be
presence of three witnesses whose names are attached to the
complied with. The requisites are strictly construed. attesting clause, and that they attested and subscribed the
instrument in her presence and in the presence of each other.
PURPOSE: The purpose is to close the door against fraud,
bad faith, to avoid substitution and to insure the authenticity of
We are of the opinion that the placing of the cross opposite
wills. To assure that the will is voluntarily and intelligibly
her name at the construction of the instrument was a sufficient
executed by the testator.
compliance with the requirements of section 618 of the Code
of Civil Procedure, which prescribes that except where wills are
FORMAL REQUIREMENTS UNDER ART. 805
signed by some other person than the testator in the manner
1. THE WILL MUST BE SUBSCRIBED AT THE END BY and from herein indicated, a valid will must be signed by the
THE TESTATOR HIMSELF OR THE TESTATOR’S NAME testator. The right of a testator to sign his will by mark,
WRITTEN BY SOME OTHER PERSON IN THE executed animo testandihas been uniformly sustained by the
PRESENCE AND UNDER THE EXPRESS DIRECTION OF courts of last resort of the United States in construing statutory
THE TESTATOR. provisions prescribing the mode of execution of wills in
language identical with, or substantially similar to that found in
What do we mean by subscribed? Meaning, it must be section 618 of our code, which was taken from section 2349 of
SIGNED. By whom? By the testator himself or some other the Code of Vermont. (Page on Wills, par. 173, and the cases
person in the presence and under the express direction of the there cited in support of the doctrine just announced.)
testator.
Compare the case of Leano v. Leano to the case of Garcia v.
“in the presence” – different types of presence test which we Lacuesta.
would discuss later.
GARCIA v. LACUESTA
“under the express direction of the testator” – It must be
expressly authorized. Without an initiative on the part of the The will appears to have been signed by Atty. Florentino Javier
testator, the 3rd person signed and the testator just acquiesced who wrote the name of Antero Mercado, followed below by "A
to the signing that’s not express direction. It should be the reugo del testator" and the name of Florentino Javier. Antero
initiative of the testator. Mercado is alleged to have written a cross immediately after
his name.
Who can sign in behalf of the testator? Is there a requirement
or a disqualification? In the case of Barut v. Cabacungan, In our opinion, the attestation clause is fatally defective for
anybody may sign for the testator. How about the attesting failing to state that Antero Mercado caused Atty. Florentino
witnesses? Can they sign in behalf of the testator? Yes but in Javier to write the testator's name under his express direction,
the case of In Re Will of Tan Duico, it is implied that as long as required by section 618 of the Code of Civil Procedure. It is
not here pretended that the cross appearing on the will is the
as there are more than 3 witnesses. The rule is even a witness
usual signature of Antero Mercado or even one of the ways by
to the will may sign as long as there are more than 3 which he signed his name. After mature reflection, we are not
witnesses because his presence as a witness is no longer prepared to liken the mere sign of the cross to a thumbmark,
material to the validity of the will. A notarial will requires 3 and the reason is obvious. The cross cannot and does not have
witnesses as a minimum. Kung more than 3 for example 4 the trustworthiness of a thumbmark.
witnesses, valid. Pero kung 3 witnesses lang tapos nagsign ang
isa for the testator, void. What makes it different from the case of Leano v. Leano? In
the case of Garcia v. Lacuesta, there was no showing that the
What is being signed or affixed by the testator? Full signature. cross was either the customary signature of the testator or
As long as it is his customary signature. Thumbmark? Pwede. that he intended the cross to be his signature. For that fact
Stamp? Kay gitamad na siya. Pwede. Heart? Smiling face?
alone, would the will be void? Even if assuming the cross was
Cross? AS LONG AS IT IS HIS CUSTOMARY SIGNATURE or
HE INTENDED THAT MARK TO BE HIS SIGNATURE even not the customary signature of the testator and there is no
if it is not his customary signature. intention for that cross to be his signature but still the will was
signed and the name Antero Mercado was written but it was
LEANO v. LEANO just written by another person. Under art 805, that cannot
actually be allowed provided that as we go further in the
attestation clause – it should be stated that the will was signed about form. So here we now have a totally void notarial will
by another person under the express direction of the testator because it violates the form prescribed by art 805, that the will
in his presence. Kato lang siya ang kulang sa will. should be signed at the logical end.
In the case of Leano, no requirement to write that “the will 2. THE TESTATOR OR THE PERSON REQUESTED BY
was signed by another person under the express direction of HIM TO WRITE HIS NAME AND THE CREDIBLE
the testator and in his presence” in the attestation clause WITNESSES OF THE WILL SHALL SIGN EACH AND
because in the first place it is intended by the testatrix to be EVERY PAGE OF THE WILL, ON THE LEFT MARGIN,
her signature. So the will itself is signed by the testatrix. EXCEPT THE LAST PAGE.
In the case of Garcia, the will was not signed by the testator Who will sign the will? Aside from the testator, the law requires
but by another person. That is why it is an additional that it should be signed by atleast 3 credible witnesses.
requirement that it must be mentioned in the attestation
clause. What should these witnesses do? They witness or attest the
execution of the will so tan.awon nila ang pagpirma sa testator
What if the spelling is wrong? It does not matter. and they also attest to the attestation and the signing by each
one of them. Aside from that they sign in the left margin
How about electronic signature or e-signature? Under the although they can sign anywhere of the margins because the
present law, an e-signature is supposed to be attached to or location is not important if you are talking of the marginal
logically associated with the e-data message or e-document or signatures.
any methodology or signature employed, adopted or executed
by such a person with the intention of authenticating or Why they are not required to sign in the margin of the last
approving an e-message or an e-document. It is affixed or page? Because ideally or usually the last page already contains
stamped to transactions or contracts. all of the signatures. It would be a surplusage if they would
still sign in the left margin because the purpose of the
A will is not a transaction, it is not a contract so it cannot be marginal signatures is for identification. So that in the future if
one of the documents that can be validly signed by an e- the will is already probated, they would still be able to identify
signature as of now. that this will was the one I attested to 20 years ago or this
page is part of the will I attested to 20 years ago. How will
How should the testator sign the will? As long as he signed the
they attest? Because this is my signature I signed.
will with his intention then the will is signed validly.
What if the last page contains only the attestation clause?
If the 3rd person signed in behalf of the testator, what should
Fernandez v. De Dios: The will is valid because if the page
the 3rd person sign in the will? His name or the testator? It
contains only the attestation clause, the testator does not have
should be the name of the testator because it is the will of the
to sign that portion because strictly speaking the attestation
testator. Although he can also add by the 3rd person name.
clause is not part of the will. What the law requires to be
e.g. TESTATOR’s NAME BY JUAN DELA CRUZ
signed in the margin is the will.
Where should the testator sign the will? The law says at the
The law says “each and every page”, how about kung back to
end. When do we say end? What end? It is not the physical
back ang imong will? (Para makatipid kag paper ) Nagsign ka
end but it is the logical end – that portion of the will right
sa front page sa margin pero sa back wala ka nagsign. Is the
after the dispositions but before the attestation clause. The
will valid? NO because the law says each and every page. A
purpose here is to prevent unauthorized insertions after the
sheet is different from a page. You may have one sheet of
will.
paper because it is back to back (sa pagsulat yan ng
disposition) you have 2-pages. (In re Estate of Saguinsin)
If after the signature of the testator in a notarial will there are
additional provisions, what would be the effect of the additions
in the notarial will? Avera v. Garcia, Nayve v. Mojal: The SC says that it is true
that the statute says that the testator and the instrumental
If we are talking of a notarial will, the entire will is void witnesses shall sign their names on the left margin of each and
every page; and it is undeniable that the general doctrine is to
because by adding some provisions after the signature of the
the effect that all statutory requirements as to the execution of
testator in a notarial will the signature now no longer appears wills must be fully complied with. The same doctrine is also
in the logical end. If you write additional provisions, the deducible from cases heretofore decided by this court.
signature would now be in the middle. Although form lang siya
but again art 805 is a matter or form, everything in 805 is
Still some details at times creep into legislative enactments credible before the court allows the probate of the will they
which are so trivial it would be absurd to suppose that the have attested.
Legislature could have attached any decisive importance to
them. The provision to the effect that the signatures of the Atty. Yangyang-Espejo: For one to be considered credible,
testator and witnesses shall be written on the left margin of you must be competent and when we say you are competent
each page — rather than on the right margin — seems to be as a witness meaning you have to possess all the qualifications
this character. So far as concerns the authentication of the will, under art 820 and none of the disqualifications under art 821
and of every part thereof, it can make no possible difference and you should be able to testify based on facts, not from
whether the names appear on the left or no the right margin, hearsay. Not required to present prior and independent
provided they are on one or the other. evidence of credibility and integrity.
CREDIBLE WITNESSES Credible witnesses are also called SUBSCRIBING WITNESSES/

MARGINAL WITNESSES/ INSTRUMENTAL WITNESSES/
GONZALES v. CA ATTESTING WITNESSES. They are one of the same. Pareha
lang na sila tanan.
It is true that under Article 805 of the New Civil Code, every
will, other than a holographic will, must be subscribed at the If the will has only one page, is it still required to sign in the
end thereof by the testator himself or by the testator's name margins? Abangan v. Abangan: isa lang ka page imohang
written by some other person in his presence, and by his will, dili na kinahanglan na to sign in the margins because
express direction, and attested and subscribed by three or logically that will contains all the signature. So no need to sign
more credible witnesses in the presence of the testator and of the margin.
one another, While the petitioner submits that Article 820 and
821 of the New Civil Code speak of the competency of a
Remember that each and every page must be signed. Dapat
witness due to his qualifications under the first Article and
none of the disqualifications under the second Article, whereas tanan pages naa didto ang signature sa testator ug tulo ka
Article 805 requires the attestation of three or more credible witnesses.
witnesses, petitioner concludes that the term credible requires
something more than just being competent and, therefore, a What happens if one page does not contain marginal
witness in addition to being competent under Articles 820 and signatures? The general rule – the will is void.
821 must also be a credible witness under Article 805.
ICASIANO v. ICASIANO (The SC here applied the principle
In the strict sense, the competency of a person to be an of substantial compliance)
instrumental witness to a will is determined by the statute, that
is Art. 820 and 821, Civil Code, whereas his credibility depends On the question of law, we hold that the inadvertent failure of
On the appreciation of his testimony and arises from the belief one witness to affix his signature to one page of a testament,
and conclusion of the Court that said witness is telling the due to the simultaneous lifting of two pages in the course of
truth. Thus, in the case of Vda.de Aroyo v. El Beaterio del signing, is not per se sufficient to justify denial of probate.
Impossibility of substitution of this page is assured not only the
Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the
fact that the testatrix and two other witnesses did sign the
Supreme Court held and ruled that: "Competency as a witness defective page, but also by its bearing the coincident imprint of
is one thing, and it is another to be a credible witness, so the seal of the notary public before whom the testament was
credible that the Court must accept what he says. Trial courts ratified by testatrix and all three witnesses. The law should not
may allow a person to testify as a witness upon a given matter be so strictly and literally interpreted as to penalize the
because he is competent, but may thereafter decide whether testatrix on account of the inadvertence of a single witness
over whose conduct she had no control, where the purpose of
to believe or not to believe his testimony." In fine, We state
the law to guarantee the identity of the testament and its
the rule that the instrumental witnesses in Order to be component pages is sufficiently attained, no intentional or
competent must be shown to have the qualifications under deliberate deviation existed, and the evidence on record
Article 820 of the Civil Code and none of the disqualifications attests to the full observance of the statutory requisites.
under Article 821 and for their testimony to be credible, that is Otherwise, as stated in Vda.de Gil. vs. Murciano, 49 Off. Gaz.
worthy of belief and entitled to credence, it is not mandatory 1459, at 1479 (decision on reconsideration) "witnesses may
that evidence be first established on record that the witnesses sabotage the will by muddling or bungling it or the attestation
clause".
have a good standing in the community or that they are
honest and upright or reputed to be trustworthy and reliable,
That the failure of witness Natividad to sign page three (3)
for a person is presumed to be such unless the contrary is
was entirely through pure oversight is shown by his own
established otherwise. In other words, the instrumental testimony as well as by the duplicate copy of the will, which
witnesses must be competent and their testimonies must be
bears a complete set of signatures in every page. The text of PURPOSE OF NUMBERING
the attestation clause and the acknowledgment before the
Notary Public likewise evidence that no one was aware of the
(1) To guard against fraud
defect at the time.
(2) To forestall any attempt to suppress or substitute any
of the pages
3. ALL THE PAGES SHALL BE NUMBERED
(3) To prevent any increase or decrease in the pages
CORRELATIVELY IN LETTERS PLACED ON THE UPPER
(4) To afford means of detecting the loss of any of these
PART OF EACH PAGE.
pages.
“in letters” – meaning naka-spell out siya
Abangan v. Abangan: What if the will consists of only one
When you say “in letters”, ideally you mean “PAGE ONE, PAGE page but does not contain the page number? Is the will void?
TWO, PAGE THREE” so you spell that out. What if you only use No, it is not void because if the page is lost then youcould
“1, 2, 3” or “I, II, II” or “A,B,C” or mixed letters and numbers easily detect the loss of the page because you do not have the
“Page 1, Page 2, Page 3”? will left anymore. The purpose of the law requiring the
numbering would not apply if it is only one page.
In the following cases decided by the SC, the
In requiring that each and every page of a will must be
numberings were allowed:
numbered correlatively in letters placed on the upper part of
the sheet, it is likewise clear that the object of Act No. 2645 is
 UNSON v. ABELA: Arabic numerals to know whether any sheet of the will has been removed. But,
 ALDABA v. ROQUE: “A,B,C” when all the dispositive parts of a will are written on one sheet
 NAYVE v. MOJAL: “1,2,3” only, the object of the statute disappears because the removal
 In Re: Pilapil: In letters and partly in figures of this single sheet, although unnumbered, cannot be hidden.
What if the first sheet is not numbered, wala siyay number, In the case again of Fernandez v. De Dios, the will contains
diretso page two lang nakabutang, valid ba siya? YES. In the 4 pages pero sa page 4 wala nakabutang na page 4. The SC:
case of Lopez v. Liboro, in the present case, the omission to As to the numbering of the sheet containing the attestation
put a page number on the first sheet, if that be necessary, is clause, it is true that it does not appear on the upper part of
supplied by other forms of identification more trustworthy than the sheet, but it does not appear in its text, the pertinent part
the conventional numerical words or characters. The of which is copied hereinafter, with the words, having
reference to the number of sheets of the will, underscored,
unnumbered page is clearly identified as the first page by the including the page number of the attestation:
internal sense of its contents considered in relation to the
contents of the second page. By their meaning and coherence, * * * We certify that the foregoing document written
the first and second lines on the second page are undeniably a in Spanish, a language known by the testator
continuation of the last sentence of the testament, before the Antonino Vergel de Dios, consisting of three sheet
attestation clause, which starts at the bottom of the preceding actually used, correlatively enumerated, besides this
page. Furthermore, the unnumbered page contains the caption sheet . . . .
"TESTAMENTO," the invocation of the Almighty, and a recital
that the testator was in full use of his testamentary faculty, — If, as stated in this clause, the foregoing document consists
all of which, in the logical order of sequence, precede the of three sheets, besides that of the clause itself, which is in
singular, it is clear that such a sheet of the attestation clause is
direction for the disposition of the marker's property. Again, as
the fourth and that the will, including said sheet, has four
page two contains only the two lines above mentioned, the sheets. This description contained in the clause in question
attestation clause, the mark of the testator and the signatures constitutes substantial compliance with the requirements
of the witnesses, the other sheet can not by any possibility be prescribed by the law regarding the paging. So it was held by
taken for other than page one. this Court in the case of Abangan vs. Abangan (40 Phil., 476),
where the sheet containing the attestation, as well as the
The law says on the upper part of each page, how about kung preceding one, was also not paged. Furthermore the law, as
sa lower part ang page? In the case of Fernandez v. De we shall see later on, does not require that the sheet
containing nothing but the attestation clause, wholly or in part,
Dios, paging may be placed at the top, bottom, even at the
be numbered or paged. Consequently this lack of paging on
left or right margin or even in the text itself. It does not matter the attestation sheet does not take anything from the validity
as long as you can see that it is page one, page two, page of the will.
three.
AUGUST 4 – 2nd half
Let's go to the 4th requirement of a notarial will.

Both the attestation and the subscription must be done in the
The will must be attested and subscribed by 3 or more credible presence of the testator and each and everyone of the
witnesses in the presence of the testator and of one another. witnesses. Each of them is a witness of the other.
We already know what's the meaning of a credible witness.
What constitutes in the presence? If the signing is not done in
What do they do? Aside from subscribing, they attest. the presence, if the attestation is not done in the presence
then the will is void. It is a fatal defect actually. It cannot even
When we say subscribe, that means they sign in the margins be cured on the ground of substantial compliance.
and also, in the attestation clause.
What are the tests of presence? As discussed in the case of
When we say attest, they witness. Jaboneta v Gustilo, there are four (4) generally accepted tests
of presence.
You should be able to know the distinctions between
attestation and subscription. There are 5 distinctions. 1) Test of vision - The attestation and the signing is seen by
the witnesses or by the testator. Visible to the eyes. That is the
1) Attestation consist in witnessing the testator'a execution of best test.
the will in order to see and take note mentally that those
things are done which the statute requires for the execution of 2) Test of position - Even if the testator or the witness did not
the will and that the signature of the testator exists as a fact. actually see but he was in a position to see had he wanted to.
Just like in the case of Jaboneta v Gustilo (Recitation)
Subscription is the signing of the witness name upon the same
paper for the purpose of identification of such paper as a will What was the position of the testator when one of the
executed by the testator. witnesses signed?
What was the issue in that case? Why did that issue arise?
2) Attestation is the mental act of the senses. Subscription os What was the position of the witness?
the mechanical act of the hand. What specific incident during the execution of the will was
alleged to be defective, was alleged to be not in the presence?
3) The purpose of attestation is to render available proof of If your leaving the room, what will be your position?
authenticity of the will and its due execution. The purpose of Is the test of presence satisfied?
subscription is identification.
Even if he had his back turned at that time, he did not really
4) Attestation is the act of witnesses. Subscription is the act of see but he could easily see it if he just glanced his eyes on the
the testator when the testator signs the will or the witnesses if proper direction. He was in a position to see. That is the
the witnesses affixed their signature in the will. important thing you have to remember.
5) To attest a will is to know that it was published as such and Now in the case of Nera v Rimando, the SC mentioned that for
to certify the fact required to constitute an actual or legal example, there ews a curtain separating the testator and the
publication. To subscribe a paper published as a will is only to witnesses from some of the other witnesses, would that be in
write on the same paper the names of the witnesses for the the presence? No because there will be physical obstruction
sole purpose of identification. because of the curtain.
So in short, when you attest, it involves the act of witnessing But you also have to consider if that was another obstruction
the signing by the testator of his name on the will. They also like a glass or sliding door, clear sya. Makita gihapon nimo
witness the act of other witnesses in witnessing. Aside from even it is an obstruction. If you can see the act of the others if
that, they witness the subscription of each of everyone of you just turn your eyes on the proper direction, that is
them in the will and in the attestation clause. It is a mental considered in the presence as long as there will be no physical
act, an act of the senses. obstruction that would make it impossible for you to see even
if you want to.
Subscription, it is just signing in the margins. So it is a
mechanical act, an act of the hand. In the case of Maravilla v Maravilla (Recitation)
Take note also of the purpose of attestation - to see to it that So he was not able to identify that it was the signature of the
the formalities prescribed by law for the execution of the will tetatrix, is that sufficient to disallow the will?
had all been complied with. They certify as to the fact What were the positions of the testator and the witnesses at
attendant to the execution of the will whereas as the purpose the time when the will was executed?
of subscription is for identification. Signing on the margins to Is the will valid? Was it in the presence? Why?
make sure the same pages can be identified as the same
pages comprising the will after it was executed by the testator They were in a position to see. You could see when you are
in the presence of the witnesses. seated next to each other around table.
clause of a notarial where the witnesses certify that the

How about if the testator is blind, what did the SC say here? instrument has been executed before them and the manner of
Can a blind person execute a will? the execution of the same. It is a separate memorandum or
records of the facts surrounding the conduct of execution and
3) That is the test of available senses. Even if the signing was once signed by the witnesses, it gives affirmation to the fact
not seen, even if the witness did not identify positively the that compliance with the essential formalities required by law
signature of the testatrix but the SC said, that is enough. In has been observed.
fact, he is not expected to identify because the execution of
the will happened around 14 years ago and it was the first The purpose here is to preserve in a permanent form a record
time the said witness saw the signature of the testator. of the fact attending the execution of the will. So that in case
of death, absence or failure of memory of the subscribing
If the testator is blind, as long as it is within the range of his witnesses or casualties, the due execution of the will may still
other available senses - touch, hearing, smell, probably taste :) be proved.
4) Test of mental apprehension - You're not in a position to Probate of will comes later after the execution of the will. So
see but at the back of your mind, you know that the will is what if some of the witnesses already left the Philippines etc.
being signed. How can you prove the fact surrounding the execution of the
will? It is by means of the attestation clause. It is not enough
I would just like to emphasize that insofar as the test of that the will is in fact attested and subscribed. That fact must
available senses is concerned, it only applies to a blind also be reduced in a written form, in the form of the
testator. You cannot apply this to a blind witness. In that case, attestation clause. You cannot prove later on by oral evidence
the will be void because a blind person cannot be a witness to that will has been subscribed and attestted. That is how
a will. Blind person can be a testator but he cannot be a important an attestation clause is.
witness. Not because you are blind, you are to be deprived of
the privilege of executing a will, to dispose of your properties The attestation clause is a declaration made by the witnesses
mortis causa. You cannot delegate the execution of the will to and not the testator. So only the signatures of the witnesses
another person. Will is strictly personal. You should be the one are required in the attestation clause. They must know the
to execute your own will. But insofar as witnessing the recitals of the clause but need not need to know the contents
execution of the will, that is another story. You can choose of the will itself.
who will witness the execution of the will unlike the testator
who is the only one who can execute for himself. (Joke about So what do they attest to?
million filipinos, why bulag person pa?)
1) Genuineness of the signature of the testator
In the case of Gabriel v Mateo, the question is: when should 2) Due execution of the will as embodied in the attestation
the signing be done? Is there a particular order that you clause
should follow? The SC said that it does not matter that the will
is signed ahead or after the testator, as long as the signing is There is no substantial compliance allowed. If the will does not
sufficiently contemporaneous and made in one occasion and as have an attestation clause, it is void.
part of one single transaction. What is important is it is in the
presence of each and everyone of them. Let us discuss the case of Azuela v CA (Recitation)
But insofar as the acknowledgement is concerned, is there a (Ma'am draws on the board)
need that the acknowledgment be done in the presence of a
testator and of each and everyone of the witnesses? There is The signatures may appear on top, bottom, left or right
no such requirement. As long as the signing and the margin. Can we not apply that in this case?
attestation is in the presence of each and everyone of them. What kind of signature (that which may appear in top, bottom
But as to the acknowledgment, the important thing is that it etc) is being referred to in that case?
should be in the presence of the notary public only but not
necessarily in the presence of each and everyone of them. As discussed by SC, the attestation clause has to be assigned
Personal presence before the notary public under the notarial at the bottom. They are intended to avow or to own the
law. recitals in the attestation clause. They are directed to the
statements contained in the attestation clause.
What is the purpose of required 'in the presence?' To avoid
fraudulent substitution of the will and to make it more difficult In that case, the court is actually referring to marginal
the invention of false testimonies by the witnesses. signatures which can appear anywhere in the will.
Another requirement is the attestation. We should have the What is the purpose of marginal signatures? For identification.
attestation clause. So when we say attestation, we are Wherever the signature is located, you can identify the
referring to the mental act of witnessing. We are referring to signature and consequently, you can identify the same page
the clause, the written statement in the notarial will. That which forms part of the will executed by the testator, by the
presence of your signature. issue in that case?
Can this defect be excused on the ground of substantial There was nothing in the attestation clause stating the number
compliance? of pages in the will but it was stated in the acknowledgment
portion.
If the signatures do not appear at the bottom of the
attestation clause, what would prevent the insertion of the What was stated in the acknowledgment portion?
attestation clause later? It would be harder to insert the
attestation clause if we would require the signature to appear By that statement in the acknowledgment, you could say that
at the bottom. This would make impossible or very difficult to the will consists of 2 pages. Applying the principle of
just later on add the attestation clause by requiring the substantial compliance, whatever omission was the is the
signatures to be written at the bottom. attestation clause was cured by that statement in the
acknowledgment portion of the will.
The signatures on the margins cannot serve the same purpose
as the signatures in the attestation clause. They cannot be In the case of Abada v Abaja, it was alleged that the
directed towards the recitals in the attestation clause. attestation clause fails to state the number of pages on which
the will is written. There was a recital in the attestation clause
Ok pa daw na nagsign sa bottom, wala sa margins because in as to the number of pages. It is not required that you really
that case, even if ealay signatures sa margins, still they can have to cite the provisions of the law as long as it is indicated.
identify the will because there are signatures at the bottom.
Pero kung signatures at the margins, wala sa bottom, that is a 2) The fact that the testator signed the will and every page
fatal defect. thereof, or caused some other person to write his name, under
his express direction
That is the same issue raised in Calgro v Calgro.
We already discussed this in the case of Garcia v Lacuesta. For
You have to know the distinctions between the signatures in example, if the testator caused some other person to write his
the attestation clause and the marginal signature. name, he should also indicate that it was by another person
under the express direction of the testator. As to the
Another important point that you have to remember in 805, attestation clause, if you omit the words 'in the presence' that
what are the statements to be obtained in the attestation is not a fatal defect because it is not required under 805 to be
clause? stated. That was discussed in the case of Jallores v Enterino.
1) The number of pages used upon which the will is written In the case of Payad v Tolentino, the will was thumb marked
by the testator. In that scenario, there is no requirement that
Aside from writing the page number of every page, we should the attestation clause to state that another person was
state in the attestation clause the total number of pages used requested to sign the will for him because his thumb mark is
in the will. This will consists of 5 pages including the page for his signature.
acknowledgment etc.
3) The signing by the testator or by the person requested by
In the case of Azuela v CA, it was an issue also. Why? Naay him in the presence of the instrumental witnesses
blank pero nakalimutan nila ibutang pila ka number of pages.
The requirement according to SC is mandatory. The failure of It should be stated in the attestation clause that the signing by
the attestation clause to state the number of pages in which the testator eas in the presence of the instrumental witnesses.
the will was written xxx The purpose of the law is tot No need to cite that the signing of the testator was in the
safeguard against possible intercalations or omission of one or presence of testator :)
some of its pages and to prevent any increase or decrease im
the pages. 4) That the instrumental witnesses witnessed and signed the
will and all the pages thereof in the presence of the testator
Even if the pages of the will are numbered but without stating and of one another.
in the attestation clause how many pages are there in the will,
you cannot be sure if those are the only pages. Witnessed and signed. Duwa ha.
We cannot use the principle of substantial compliance because What happens if there is an omission? You are not able to
there is not statement in the attestation clause or any part of state that the instrumental witnesses signed the will in the
the will as to the total number of pages which comprises the pages thereof in the presence of the testator and of one
will. another. Defective. This omission cannot be cured on the
ground of substantial compliance.
In the case of Taboada v Rosal (Recitation)
AUGUST 7, 2014
How about the number of pages used in the will, what is the
by Sigrid Mier
But under the law, when it is a will, it is not required for the
We already discussed the statements that must be mentioned notary public to keep a will because pursuant to the rule that a
in the attestation clause. will is a personal act of the testator. There is no need to
submit a copy.
We now go to the language used in the attestation clause. We
also discussed before, that was the language to be used in the Q: what do we mean by an acknowledgement?
will. A: that is discussed in the case of AZUELA v. CA
Pursuant to Art. 805 Facts: in lieu of an acknowledgment, a jurat was made by the
Article 805. Every will, other than a holographic will, must be notary public.
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, Jurat, meaning the document is subscribed and sworn to.
and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the Atty Y-E: It is not sufficient because a jurat falls short of the
testator and of one another. requirement because in a jurat, you just subscribe under oath.
There is not statement that x x x the document is your own
The testator or the person requested by him to write his name free act and deed x x x.
and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the The will is not valid because the acknowledgment is not
left margin, and all the pages shall be numbered correlatively proper. In short, there is not acknowledgment in that notarial
in letters placed on the upper part of each page. will. The formal requisite is lacking.
We discussed before that the signing by the testator of the will

The attestation shall state the number of pages used upon must be in the presence of the witnesses. So the signing of the
which the will is written, and the fact that the testator signed will and the attestation by the witnesses has to also be in the
the will and every page thereof, or caused some other person presence of each and one of them.
to write his name, under his express direction, in the presence
of the instrumental witnesses, and that the latter witnessed Q: How about the acknowledgment? Is it required to be done
and signed the will and all the pages thereof in the presence of in the presence of the testator and each and every one of
the testator and of one another. them?
A: There is not such requirement. What is required is that
If the attestation clause is in a language not known to the during the execution of the will, the attestation and the signing
witnesses, it shall be interpreted to them. (n) must be in the presence of the testator and the witnesses.
Preferably the language used in the attestation clause should Insofar as acknowledgment is concerned, anyone of the
be known to the witnesses BUT if not known to them but are witnesses or the testator may go to the notary public. Perhaps,
interpreted or explained to them, that can be given effect. Monday muadto si testator, Tuesday one witness.
As to the testator, he has nothing to do with the language of Not required nga each and everyone shall be witness to the
the attestation clause because the attestation clause is the act acknowledgment. The notarial law merely requires that the
of the witnesses. The testator is concerned with the will. The acknowledgment be made in the presence of the notary public.
same thing with the witnesses, they do not have to know the Kanang niatubang jud ka sa notary public because you have to
language used in the will. assure that you really have understood the document.
Article 806. Every will must be acknowledged before a notary JAVELLANA v. LEDESMA
public by the testator and the witnesses. The notary public It is not required that the acknowledgment be done in a single
shall not be required to retain a copy of the will, or file another occasion, so the parties can come one by one to the notary
with the office of the Clerk of Court.(n) public.
If it is a notarial will, although 806 says “every will”; but we Q: How about one of the attesting witnesses is a notary
are only talking here of a notarial will. This will should be public?
acknowledged by a notary public BY the (1) testator and the A: That is answered in the case of CRUZ v. VILLASOR
(2) witnesses.
It would be impossible for him to attest to the validity of the
The notary public is not required to keep a copy of the will will.
because under the notarial law, notaries public are required to Reasons given by the SC:
retain a copy of documents that they notarize. So 2 copies, 1 1. He cannot split his personality.
for them and 1 will be submitted to the clerk of court. 2. It would create a conflict of interest. Because the function of
a notary public is to bar against any immoral or illegal
agreements, the function will be defeated if that is the case
because by then you will be interested in the validity of the able to do so. If he cannot, he shall designated 2 persons to
will. read the will and to communicate to him in some practicable
manner, the contents of the will.
If you are participating in the will as a witness, naturally you
would want the will to be sustained. But being the notary There is no requirement here that the 2 witnesses be the
public, he should attest that indeed the witnesses were not attesting witnesses, basta 2 persons.
coerced and understood also the contents of the will.
How do we prove that this requirement has been complied
If you are a witness and a notary public, you would really want with? Do we have to state in the will or in the attestation
to uphold the validity of the will because it also involves your clause?
own act. There will be conflict of interest.
This can be proved by extrinsic or intrinsic evidence. There is
As a consequence in that case, where the were only 3 no need to indicate these things in the attestation clause.
witnesses and 1 of them is the notary public, in effect only 2
witnesses remain to be qualified. So, the will now falls short of If you are a lawyer, better to state that para klaro.
art. 805 that there should at least be 3 attesting witnesses to
the will. Article 808. If the testator is blind, the will shall be read to
him twice; once, by one of the subscribing witnesses, and
Q: What if there were 4 witnesses to the will? again, by the notary public before whom the will is
The person who acts as a witness and at the same time acts a acknowledged. (n)
a notary public is disqualified to become a witness, but he is
not disqualified to be a notary public. This is also a very important provision ha. If the testator is
blind.
Q: Is a notary public required to read the contents of the will?
There is no such requirement but when we go later to the Can he execute a will? YES!
other articles, when it is required, such as in the case of a
blind testator. The will has to be read twice (by the subscribing There are additional requirements:
witnesses and the notary public before whom the will is -2 readings of the will
acknowledged). 1st by one of the subscribing witnesses
2nd by the notary public whom the will is acknowledged
Q: what is the consequence if there is no acknowledgment in
the will? How do we know that the testator is blind? Dapat ba na wala
Of course, the notarial will will be void because it falls short of jud syay Makita?
the formal requirements provided by law. GARCIA v. VASQUEZ
A case of glaucoma and cannot read documents.
Q: What is the consequence if the document is notarized?
It enjoys the presumption of regularity. Clear and convincing In that condition, her eyesight was only for viewing distant
evidence would be needed to overturn the presumption of objects and not reading prints, the SC considered her as blind
regularity. under the contemplation of Art. 808
Take note, under the rules of court, usually, as a general rule, In this case there was no compliance of the requirement of 2
a document which is acknowledged before a notary public readings.
becomes a public document. An exception would be wills. Even
if wills are acknowledged before notary public, they do not ALVARADO v. GAVIOLA
become public documents, they are private documents. A case of glaucoma also.
Q: How about, there is not documentary stamp attached or This particular case even if the reading was not done in
affixed? Because it is required under the law. accordance with the letter of the law, it was still complied with.
The SC applied the principle of substantial compliance because
GABUCAN v. MANTA even if there was no 2 readings but the reading was done by
It will not be a fatal defect. Just require the doc stamp to be the lawyer who drafted the will and then it was followed by the
affixed in the will in the acknowledgement portion. witnesses, the notary public and the testator himself. They had
their own copies and the testator also confirmed that the will
Article 807. If the testator be deaf, or a deaf-mute, he must indeed contained his wishes.
personally read the will, if able to do so; otherwise, he shall
designate two persons to read it and communicate to him, in Article 809. In the absence of bad faith, forgery, or fraud, or
some practicable manner, the contents thereof. (n) undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language
These are the additional requirement if the testator is deaf or used therein shall not render the will invalid if it is proved that
deaf-mute. Take note, he must personally read the will if he is the will was in fact executed and attested in substantial
compliance with all the requirements of article 805. (n) sya sa document, we don’t have to look outside the will. That
can be cured on the ground of substantial compliance.
Gives us the principle of substantial compliance which we
already encountered before. For example, in the attestation clause, what if there is no
statement of “in the presence of the testator”?
Here, under 809, we apply the liberal interpretation. It is
not the purpose of the law to curtail the right to make the will So, how do we know that indeed it was signed in the presence
but to safeguard it. When it is executed in accordance with the of the testator and the witnesses? We need to get the
formalities of the law and without the bad faith, it should be testimony of witnesses. But that is already going too far. It
admitted to probate. would be introducing evidence allunde and that is not allowed
under substantial compliance.
Q: what defects or imperfections are excused?
1. Defects and imperfections in the form of attestation VILLAFLOR v. TOBIAS
2. Defects and imperfections in the language used in the Here, the dispositions were written on the first page and then
attestation gamay lang ang iyang dispositions, wala niya napuno mga ½
lang. the 2nd page contained the attestation clause. It was
Requisites for application of 809: contended that defective ang will, because according to them
1. There are defects or imperfects in the form of the wala daw ang attestation nga part sa will.
attestation clause or in the language used therein.
2. There is absence of bad faith, forgery or fraud, or But the SC said, the fact remains that there is an attestation
undue and improper pressure and influence. clause. Although there is a very big space in the front portion.
3. The will was executed and attested in substantial The very defect is cured by the fact that there is an attestation
compliance with the all the requirements. clause in the 2nd page. It is just a defect that can be excused
4. The fact of such execution and attestation is proved. on substantial compliance.
If you memorize the 4 requisites, do you already know what CAGRO v. CAGRO
the grounds are excused on the ground of substantial Attestation clause was signed in the margins and nothing in
compliance? No. the bottom.
Actually, there is no confusion here. In cases decided by the That cannot be excused on the ground of substantial
SC, the SC clarified what defects are excusable on the ground compliance because even if there were signatures on the
of substantial compliance and what are not excusable. margins, they were directed at a wholly different avowal. Their
purpose for being there is just for identification. They cannot
ABADA v. ABAJA be extended to avow the dispositions in the attestation clause.
It only allows an exploration of the will itself and not evidence The fact remains that at the bottom of the attestation clause.
allunde. If the witnesses intended that the signatures in the margin
serve also the purpose at the bottom of the attestation clause,
If the defect can be cured by intrinsic evidence, meaning by then you would have to ask them. That again is extrinsic
examination of the will and reading the language of the will or evidence and that is not allowed.
examining the other portions of the will, after that we can
clarify or cure the defect, then the defect can be excused on SAŇO v. QUINTAŇA
the ground of substantial compliance. Failure to state that the will was signed in the left margin in
the presence of the testatrix, it is not also excusable.
But, if in order to clear the doubt or defect or cure such, we
need to look outside of the will, we need to gather extrinsic Recap:
evidence, that defect is no longer excusable. Otherwise, any In the case of ABADA v. ABAJA, the question here was on
other defect can just be cured. So we have to set a limitation: the attestation clause, it did not state that the witnesses
only those defects curable by intrinsic evidence. signed in the presence of the testator and each and everyone
of them.
We discussed those cases before.
The SC, precision in the language in the drafting the
TABOADA v. ROSAL attestation clause is desirable but it is not imperative that the
Here, the will has 2 pages but the attestation did not state the parrot like repetition of the statute be made. It is sufficient
total # of pages. that from the language employed, it can be reasonably
reduced that it fulfills what the law expects of it. So substantial
But even in the absence of such statement in the attestation compliance.
clause, there was a statement in the acknowledgment portion.
So that would cure the defect because even if not in the We should actually re-write art. 809 to be clearer:
attestation clause, but in the acknowledgment, part gihapon In the absence of bad faith, forgery or fraud, or undue
and improper influence, defect and imperfections in the
form of the attestation or in the language used therein, soundness of mind of the testator. – again because
shall not render the will invalid, if such defects and there are not witnesses. There is no notary public.
imperfections can be supplied by an examination of the
will itself and it is proved that the will was in fact As to the history of the holographic wills:
executed and attested in substantial compliance with I. Spanish Civil Code – this code permitted the
all the requirements of Art. 805. execution of holographic wills.
II. Code of Civil Procedure (Act No. 190) which was
Please remember the guiding principle: approved on August 7, 1901.
Only if the defect can be cured by an intrinsic evidence, **uyy anniversary**
then it can be excuse on the ground of substantial - adopting only notarial wills and thereby repealing
compliance. holographic wills.
III. New Civil code which took effect August 30, 1950. –
Article 810. A person may execute a holographic will which holographic wills were revived.
must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be So we have a point in time in our history from august 7,
made in or out of the Philippines, and need not be witnessed. 1901 to august 29, 1950, that holographic wills were not
(678, 688a) allowed.
The second kind of will recognized under our jurisdiction are So if you are presented with a copy of the holographic will
holographic wills. dated 1938, obviously it is not valid.
They are easier to make that notarial wills. In the formalities of First requisite: that the will must be entirely written by
a holographic will, it is a very short provision art. 810. the hands of the testator.
What are the requisites? When you say written, in writing, whether long hand or short
1. The will must be written in the language known to the hand (haha, unsay English anang binulde? Ah! Basta mao na
testator. (We include Art. 804 which applies to both sya). It is allowed as long as in the hands of the testator, so
notarial and holographic wills) dili pwede ang computerized, typewritten, stamped, cut-outs
2. The will must be entirely written by the testator. (effort), etc. 
3. The will must dated in the hands of the testator.
4. The will must be signed by the testator. Q: kung wala nay kamot? Iyang gamit kay iyang baba or tiil,
5. It must be executed with animus testandi. (Also valid ba?
applies to holographic wills, art. 805) Authorities say that it is still valid because it is still the writing
of the testator. His own writing.
Advantages:
1. It is easier to make. – you don’t need a notary public “entirely handwritten” – if there is a portion of the will not
or witness. in the hand writing of the testator, the entire will becomes
2. It is easier to revise. – actually when we discuss later, VOID.
you are allowed to make insertions, alterations, etc. in
a holographic will, you can even add additional Bisan pa ug handwritten pero lahi ang nagsulat, VOID gihapon
provisions. Unlike in notarial will, when you sign it, ang will because the writing should be that of the testator
and then you add subsequently, you will be violating himself. Under this kind of will, the mechanical act of drafting
the formalities required, in effect, it will be the will cannot be delegated to a third person.
invalidated, the entire will!
What if you really want to add to your notarial will? Take note, that this kind of will does not require any kind of
(a) Execute a codicil attestation clause or acknowledgment, any of such would be
(b) Execute another will considered as a mere surplusage.
3. It is easier to keep secret. – because there are no
witnesses. Ex. There is a will entirely handwritten by the testator but at
the back, there is a computerized attestation clause, is the will
Disadvantages: valid? The will is valid because it is a holographic will, as long
1. It is easier to forge. – because there is no guarantee as the will itself is complete and entirely handwritten.
without the witnesses or the notary public.
2. It is easier to misunderstand because the testator How about the attestation clause? It’s just mere surplusage,
may have been faulty in expressing his last wishes. just disregard that. As long as the will itself is valid as a
There are technical words, sometimes mali ug gamit holographic will.
si testator.
3. There is no guarantee that there is no vices of As to the date:
consent and there is no guarantee as to the

It is very important! Unlike the notarial will which does not It was my analysis of this case that FEB/61 was sufficient
require a date. Even without a date, it is still valid because it is because the contingency sought to be protected is not existing
easier to determine the date (as for notarial wills). Because in this case.
there are witnesses and the notary public.
The SC here applied the doctrine of substantial compliance
Without a date, a holographic will is void. because there was a will though not stating the day, but the
contingencies were not present so the court upheld the will.
If there is a date, but it is written by another person or
stamped, it is not valid because it is not in the handwriting of Where should the date appear in the holographic will? Is there
the testator. a particular requirement under the law?
There is none. It may appear anywhere. At the top, bottom,
Q: what are the reason why the date is important? after the signature or even in the body of the will. As discussed
1. There was a point in time in our history when in the case:
holographic wills were not allowed.
- What if you have a holographic will executed by a LABRADOR v. CA
very very old person who died on December 1969.
Obviously, effective na ang holographic will. But how Signature: what kind of signature is allowed or required for a
do we know? He could have made the will on 1935, holographic will?
so without a date, how do we know that he made the The law says signature, it should be full signature.
will after 1950. (the law upon the execution of the will
governs, remember?) Ex. Juan dela Cruz.
2. To provide against contingency as when there are 2
competing wills executed on the same day or What if your signature is J.D. Cruz, is that allowed? Yes, as
different days. long as it is your customary signature.
- for example the testator died leaving 2 wills, one
disposing of all his properties to A and he had another What if your customary signature is JDC, in holographic wills,
disposing all his properties to B. both wills cover all that is not allowed. Even if the initials are your customary
his properties but different heirs, kinsa man karon signature, still not allowed. Why? Because initials are very easy
ang hatagan? to forge.
Under the law on revocation, the later will revokes the The requirement of requiring the handwriting of the testator is
first will. Because the later will is the latest expression intended to prevent forgery.
of the testator. So even if he made the will giving all
to A, by making another will now giving all to B, there Obviously, thumb mark is also not allowed, because it is not
was a change of mind or intention on the part of the the handwriting of the testator.
testator so we follow the latter will.
You can argue that a person’s thumb mark is unique, dili na
3. To determine the mental condition of the testator on nimo magaya. But what if gi-thumb mark lang to nimo while
the day of the execution of the will. natulog si testator, wala sya kabalo, wala baya witness ang
- because there are persons who are sane at times holographic wills.
and insane at other times. Those which we call lucid
intervals. Then if they execute at the time when they So thumb marks, cross, smiley face are not allowed. Basta full
were insane, the will is not valid because of the lack signature, the full customary signature of the testator.
of soundness of mind.
As to the location: it should be at the end of the dispositions
- how do we know that the will was executed at a but in Art. 812 as we will discuss later, there can be additional
lucid interval when it is not dated. provisions even after the testator had already signed the will,
in a holographic.
So how do we write the date in a holographic will?
Ideally, the date should state the day, the month and the year. AUGUST 11, 2014
Ex. August 7, 2014
Article 811. In the probate of a holographic will, it shall be
But it can also be made by implication, like Christmas of 2014 necessary that at least one witness who knows the handwriting
or valentines of 2010, my birthday in 2013. By that we can and signature of the testator explicitly declare that the will and
also determine. That is the rule. the signature are in the handwriting of the testator. If the will
is contested, at least three of such witnesses shall be required.
ROXAS v. DE JESUS
FEB/61 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. (619a)
three witnesses; they must be witnesses "who know the

handwriting and signature of the testator" and who can
PROBATE OF A HOLOGRAPHIC WILL declare (truthfully, of course, even if the law does not so
express) "that the will and the signature are in the handwriting
What is probate? PROBATE is the allowance of the will by the of the testator". There may be no available witness of the
court after its due execution is proved. testator's hand; or even if so familiarized, the witnesses may
be unwilling to give a positive opinion. Compliance with the
If there is a will left by the testator, it is not automatically rule of paragraph 1 of Article 811 may thus become an
impossibility. That is evidently the reason why the second
effective. Before the will can be given effect, it has to pass
paragraph of Article 811 prescribes that —
probate. The probate is a proceeding wherein the probate
court will determine whether or not the will was really
in the absence of any competent witness referred to
executed and to determine whether or not the will conforms in the preceding paragraph, and if the court deems it
with the formalities prescribed by law. necessary, expert testimony may be resorted to.
What are the requirements if we’re talking about probate of a As can be seen, the law foresees the possibility that no
holographic will? The law says there should be one witness qualified witness may be found (or what amounts to the same
who should explicitly declare that the will and the signature are thing, that no competent witness may be willing to testify to
the handwriting of the testator. That’s the minimum the authenticity of the will), and provides for resort to expert
requirement – at least one witness. evidence to supply the deficiency.
Who should have this requisite qualification? Not just any Again, under Article 811, the resort to expert evidence is
witness but the witness who can explicitly declare that will and conditioned by the words "if the Court deem it necessary",
the signature are in the handwriting of the testator. which reveal that what the law deems essential is that the
Court should be convinced of the will's authenticity. Where the
The law says that ”If the will is contested, at least three of prescribed number of witnesses is produced and the court is
such witnesses shall be required” so 3 witnesses. Now if there convinced by their testimony that the ill is genuine, it may
is no witness having this requisite qualification, the last consider it unnecessary to call for expert evidence. On the
paragraph says “and if the court deem it necessary, expert other hand, if no competent witness is available, or none
testimony may be resorted to”. of those produced is convincing, the Court may still,
and in fact it should, resort to handwriting experts. The
Is it mandatory to present the 3 witnesses mentioned in Art.
duty of the Court, in fine, is to exhaust all available
811 if the will is contested? We have the case of Azaola v.
lines of inquiry, for the state is as much interested as
Singson.
the proponent that the true intention of the testator be
carried into effect.
AZAOLA v. SINGSON (not mandatory)
For example the will is contested and there are no 3 witnesses
The proponent appealed, urging: first, that he was not bound having that requisite qualification, what will happen now to the
to produce more than one witness because the will's
will? The court can still probate the will by resorting to expert
authenticity was not questioned; and second, that Article 811
does not mandatorily require the production of three witnesses testimony as to the genuineness of the handwriting of the
to identify the handwriting and signature of a holographic will, testator.
even if its authenticity should be denied by the adverse party.
CODOY v. CALUGAY (mandatory)
We agree with the appellant that since the authenticity of the
will was not contested, he was not required to produce more In this petition, the petitioners ask whether the provisions of
than one witness; but even if the genuineness of the Article 811 of the Civil Code are permissive or mandatory. The
holographic will were contested, we are of the opinion that article provides, as a requirement for the probate of a
Article 811 of our present Civil Code can not be interpreted as contested holographic will, that at least three witnesses
to require the compulsory presentation of three witnesses to explicitly declare that the signature in the will is the genuine
identify the handwriting of the testator, under penalty of signature of the testator.
having the probate denied. Since no witness may have been
present at the execution of a holographic will, none being
required by law (Art. 810, new Civil Code), it becomes obvious We are convinced, based on the language used, that Article
that the existence of witness possessing the requisite 811 of the Civil Code is mandatory. The word "shall" connotes
qualifications is a matter beyond the control of the proponent. a mandatory order. We have ruled that "shall" in a statute
For it is not merely a question of finding and producing any commonly denotes an imperative obligation and is inconsistent

with the idea of discretion and that the presumption is that the the SC said that it is not mandatory to present at least 3
word "shall," when used in a statute is mandatory.11 witnesses but in the case of Codoy v. Calugay it is mandatory.
Laws are enacted to achieve a goal intended and to guide In the case of Azaola v. Singson, the SC made mention that
against an evil or mischief that aims to prevent. In the case at even if the genuineness and due execution of the will were in
bar, the goal to achieve is to give effect to the wishes of the question still there is no need to present at least 3 witnesses
deceased and the evil to be prevented is the possibility that but the fact remains that the genuineness and authenticity of
unscrupulous individuals who for their benefit will employ
the will were not questioned so the SC was more lenient. But
means to defeat the wishes of the testator.
in the case of Codoy v. Calugay, it is the very heart of the
issue or controversy because it was alleged that the will was a
So, we believe that the paramount consideration in the present
petition is to determine the true intent of the deceased. An forgery and upon examination the SC also suspected that there
exhaustive and objective consideration of the evidence is was really some irregularities. The SC said that even the
imperative to establish the true intent of the testator. former lawyer of the deceased expressed doubts as to the
authenticity of the signature in the holographic will.
It will be noted that not all the witnesses presented by the
respondents testified explicitly that they were familiar with the If you are asked, is it mandatory to present 3 witnesses? Well,
handwriting of testator. the case of Codoy v. Calugay is the more recent ruling of the
SC so you may use the ruling of this case but if you are
However, we cannot eliminate the possibility of a false presented with the very same facts as that of the case of
document being adjudged as the will of the testator, which is Azaola v. Singson chances are and most probably the examiner
why if the holographic will is contested, that law requires three is using the case of Azaola v. Singson so you can use the ruling
witnesses to declare that the will was in the handwriting of the in that case. If the facts are not the same as to either of the
deceased. cases, you may answer using the ruling in either of the two
cases or you may use both ruling but use first the case of
The will was found not in the personal belongings of the Codoy v. Calugay (being the more recent case) then Azaola v.
deceased but with one of the respondents, who kept it even Singson. Kung gusto mo mahimong topnotcher cite both cases.
before the death of the deceased. In the testimony of Ms.
Mehehe 
Binanay, she revealed that the will was in her possession as
early as 1985, or five years before the death of the deceased.
RIVERA v. IAC
There was no opportunity for an expert to compare the

signature and the handwriting of the deceased with other Now for the holographic wills. The respondent court
documents signed and executed by her during her lifetime. considered them valid because it found them to have been
The only chance at comparison was during the cross- written, dated and signed by the testator himself in accordance
examination of Ms. Binanay when the lawyer of petitioners with Article 810 of the Civil Code. It also held there was no
asked Ms. Binanay to compare the documents which contained necessity of presenting the three witnesses required under
the signature of the deceased with that of the holographic will Article 811 because the authenticity of the wills had not been
and she is not a handwriting expert. Even the former questioned.
lawyer of the deceased expressed doubts as to the
authenticity of the signature in the holographic will. The existence and therefore also the authenticity of the
holographic wills were questioned by Jose Rivera. In his own
A visual examination of the holographic will convince petition in SP No. 1076, he declared that Venancio Rivera died
us that the strokes are different when compared with intestate; and in SP No. 1091, he denied the existence of the
other documents written by the testator. The signature holographic wills presented by Adelaido Rivera for probate. In
of the testator in some of the disposition is not both proceedings, Jose Rivera opposed the holographic wills
readable. There were uneven strokes, retracing and submitted by Adelaido Rivera and claimed that they were
erasures on the will. spurious. Consequently, it may be argued, the respondent
court should have applied Article 811 of the Civil Code.
In the letters, there are continuous flows of the strokes,
evidencing that there is no hesitation in writing unlike that of The flaw in this argument is that, as we have already
the holographic will. We, therefore, cannot be certain that determined, Jose Rivera is not the son of the deceased
ruling holographic will was in the handwriting by the deceased. Venancio Rivera whose estate is in question. Hence, being a
mere stranger, he had no personality to contest the
How can you reconcile the cases of Azaola and Codoy? In both wills and his opposition thereto did not have the legal
cases, the will is contested but in the case of Azaola v. Singson effect of requiring the three witnesses. The testimony of
Zenaida and Venancio Rivera, Jr., who authenticated the wills Gam v. Yap: In holographic wills, there is no guaranty of the
as having been written and signed by their father, was truth and veracity of the will from the mere testimony of
sufficient. witnesses because these witnesses are not present during the
execution of a will. The law requires the document itself as
In order to have the legal effect of requiring the 3 witnesses, material proof of authenticity and as its own safeguard since
the will must be contested but the will to be considered from the document itself it could be demonstrated whether or
contested the person contesting the will must have personality not it is in the hands of the testator himself. Witnesses may be
to contest the will.  mistaken in their opinion as to the handwriting of the testator
or they may deliberately lie. Oppositors may present
contradictory evidence such as testimonies of other expert
RODELAS v. ARANZA
witnesses or other witnesses who know the handwriting and
signature of the testator or writings or letters in the
The only question here is whether a holographic will which was handwriting and signature of the testator. In view of such
lost or cannot be found can be proved by means of a contradictory evidence, the Court may use its own visual sense
photostatic copy. and decide in the face of the document whether it has been
written by the testator.
Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the court after Take note: In the probate of a holographic will, it is necessary
its due execution has been proved. The probate may be that a copy of the will should be presented in court. It may be
uncontested or not. If uncontested, at least one Identifying the original or a copy as long as you can justify that under the
witness is required and, if no witness is available, experts may Best Evidence Rule but definitely there has to be a copy.
be resorted to. If contested, at least three Identifying Without a copy of the will, even if it is proved that there was
witnesses are required. However, if the holographic will has really a will executed or even if it is proved that it was lost or
been lost or destroyed and no other copy is available, the will destroyed without any intent to revoke on the part of the
can not be probated because the best and only evidence is the testator or even if a witness is willing to testify as to the
handwriting of the testator in said will. It is necessary that contents of the will – that is not allowed.
there be a comparison between sample handwritten
statements of the testator and the handwritten will. AUGUST 11 2nd half
But, a photostatic copy or xerox copy of the holographic will

Article 812. In holographic wills, the dispositions of the
may be allowed because comparison can be made with the
testator written below his signature must be dated and signed
standard writings of the testator. In the case of Gam vs. Yap,
by him in order to make them valid as testamentary
104 PHIL. 509, the Court ruled that "the execution and the
dispositions. (n)
contents of a lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who have seen
and/or read such will. The will itself must be presented; So additional dispositions and provisions after the signature
otherwise, it shall produce no effect. The law regards the can be allowed in holographic will. The requirements is that
document itself as material proof of authenticity." additional dispositions and provisions must be dated and
signed by the testator. If date lang, walay sign, that is not
valid. Naa’y sign, pero walay date, dili gihapon valid.
But, in Footnote 8 of said decision, it says that "Perhaps it may
be proved by a photographic or photostatic copy. Even a
Article 813. When a number of dispositions appearing in a
mimeographed or carbon copy; or by other similar means, if
holographic will are signed without being dated, and the last
any, whereby the authenticity of the handwriting of the
disposition has a signature and a date, such date validates the
deceased may be exhibited and tested before the probate
dispositions preceding it, whatever be the time of prior
court," Evidently, the photostatic or xerox copy of the lost or
dispositions. (n)
destroyed holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be
determined by the probate court. So after the disposition in the holographic will, there are now
additional dispositions. So Monday, nagsulat siya to X, iyang
gipirmahan, pero dili dated, usually invalid na siya, pero
How about if no copy of the will was left but it is proved that Tuesday to Y, again, signed but not dated, again on
there is really a will executed and there is one person who saw Wednesday to Z, signed and dated. So the presence of the
the will and memorized the contents of the will and ready to signature and the date on the last disposition validates the
testify in court, can that be allowed? NOT ALLOWED. Citing other preceding disposition. Those preceding dispositions shall
Gam v. Yap, 104 PHIL. 509, the Court ruled that "the be considered as dated as of the time of the last disposition. In
execution and the contents of a lost or destroyed holographic the example I’ve given, the disposition on Monday and
will may not be proved by the bare testimony of witnesses who Tuesday will be considered as dated on Wednesday, the date
have seen and/or read such will. The will itself must be of last disposition. The requirement is that the disposition must
presented; otherwise, it shall produce no effect. The law be signed even if not dated, if dated lang, dili siya in
regards the document itself as material proof of authenticity." compliance with the requirements. If dated ang 1st diposition
then, ang last kay dated and signed, only the last disposition the full signature of the testatrix. What about giving effect to
would be valid. the previous disposition in favor of Rosa? Again, that could not
be given effect because as we reached the Law on Revocation,
Q: What if there are additional dispositions after the signature the intent of the testatrix was really to revoke the previous
of the testator which are written by third person? disposition. So in this case, the whole will itself becomes void.
The act of cancelling here is an act of revocation, and
A: Those additional dispositions are invalid. However, it does therefore there is no need of authentication. Art 814 does not
not invalidate the entire will. apply, instead you apply the law on revocation because there
was really an intention or change of mind on the part of the
Q: Why not the entire will? testator.
Remember the case of Kalaw vs Relova, refers to insertions, In the case of Ajero vs. CA, if the cancellation would be in the
cancellations, alterations, or erasures, that is referred to in Art date or signature, then that would amount to cancellation of
814. Here what I am talking is the additional dispositions after the will itself because the date and signature of the testator in
the signature of the testator in Art 813. Because in a the holographic will go into the very heart of the will. As
holographic will, the will must be entirely written by the mentioned by the SC, unless the unauthenticated alterations,
testator. A: The testator should not be penalized by the act not cancellations or insertions were made on the date of the
within his control. The will should not be invalidated for the act holographic will or on testator's signature, their presence does
of a another person which is without his consent or not invalidate the will itself. The lack of authentication will only
participation of the testator, otherwise, it would be very easy result in disallowance of such changes.
to invalidate the will of the testator by just writing, thus
additional disposition would just be disregarded.
AUGUST 14, 2014
Q: What if 3rd person would write additional disposition in By Sigrid Mier
behalf og the testator but signed and dated by the testator.
Last meeting we starter with art 820. Ah! 819 last meeting, so
A: In this case, the entire will would be invalidated because we will not be in art 820.
this time, the additional disposition would form part of the will, Article 820. Any person of sound mind and of the age of
hence the will is no longer entirely written by the testator. Pero eighteen years or more, and not blind, deaf or dumb, and able
kung wala siya’y participation sa additional disposition, then to read and write, may be a witness to the execution of a will
only that additional disposition is invalidated. mentioned in article 805 of this Code. (n)
Article 814. In case of any insertion, cancellation, erasure or Gives us the qualifications of a witness. So the law says:
alteration in a holographic will, the testator must authenticate 1. sound mind
the same by his full signature. (n) 2. 18 years and more
3. Not blind, deaf dumb
So this article refers to any insertion, cancellation, erasure or 4. Able to read and write
alteration. We are talking about insertion, cancellation, erasure Let’s proceed first to 821:
or alteration in the body of the will itself, or even in a
disposition. For example “To A, I give my house and lot, my Article 821. The following are disqualified from being
car, my jewelries” and then cancelled the house and lot. What witnesses to a will:
would be the effect? So the intention there is to exclude the
house and lot. So to be valid it must be authenticated by the (1) Any person not domiciled in the Philippines;
full signature of the testator. It may be the full or customary
signature but the initials of the testator. What if gi-cancel lang
(2) Those who have been convicted of falsification of
niya? Will the house and lot still go to A? yes, because it is not
a document, perjury or false testimony. (n)
authenticated by his full signature. Take note, if the insertion,
cancellation, erasure or alteration has no authentication, the
The disqualifications under 821 are:
will stand in its original form. As if there is no any insertion,
1. Those not domiciled in the Philippines
cancellation, erasure or alteration.
2. Those who have been convicted of falsification of a
document, perjury or false testimony
The purpose here is to prevent fraud. It is natural and logical
that the testator alone must authenticate any insertion,
Let’s combine Articles 820 and 821 to arrive at a general
cancellation, erasure or alteration that he will make in his will.
qualification:
So again the GR: any insertion, cancellation, erasure or
1. Of sound mind
alteration without authentication is not valid.
2. 18 years of age and more
3. Not blind, deaf or dumb
We have exception, we have the case of Kalaw V. Relova. So
4. Able to read and write
here there is only one essential provision then the entire will
5. Domicile in the Philippines
itself is invalidated because the new disposition does not bear
6. Not have been convicted of falsification of document, 2. The intention of remaining there permanently (animus
perjury or false testimony, manendi)
These are the qualifications of a witness to a will:
 Subscribing witness Even if in some point in time you have been absent in that
 Attesting witness place but you have that intention to return to the place, it still
 Marginal witness remains to be your domicile.
 Instrumental witness
These witnesses are all the same so they must Here, we are referring to a domicile. We have no requirement
comply with the requirements of 820 and 821. that the witness be a Filipino, it may be a foreigner provided
that he is domiciled in the Philippines.
1. Soundness of mind
Reason: Because when you attest the execution of the will,
Basically the same discussion on testamentary capacity would someday during the probate of the will you will be called upon
apply to the witness to testify. And if you are not domiciled in the Philippines,
chances are, upon the time of probate, you may no longer be
2. Age around. It would be difficult to get your testimony. Remember
that our court processes is effective only in the Philippines.
Same discussion also as to testamentary capacity. Under the
Spanish Law, if today is your 18th birthday, as long as But this requirement only applies when the will is executed in
commenced 12 midnight, you are already qualified to become the Philippines. Because when you execute a will in Africa, it
a witness. would be very difficult to find a person there who is domiciled
in the Philippines. So, it’s not practicable, so this requirement
3. Not blind is only applicable when the will is executed here.
Why can’t a blind person be a witness? Because to be a 7. As to conviction

witness, requires to attest.
First thing to remember, the conviction must be by final
Note: judgment.
A blind person can be a testator but a blind person cannot be a
witness to a notarial will. Also take note of the offenses mentioned:
 Falsification of documents
As we have already discussed, even if we already discussed
the 4 tests, one of which is the test of available senses as fas  Perjury
as the testator is concerned, that cannot apply to a witness.  Giving false testimony
These offenses go into the credibility or his capacity to tell the

4. Not deaf
truth. Because if you are a witness, you should be able to
testify as to the facts that attended the execution of the will.
Although a deaf person can witness, it is difficult to have his
testimony during probate proceedings. You would have to use
Can a murderer be a witness? How about a rapist? Yes,
sign language pa during his testimony. Why not use just a
definitely. They are not liars.  manyakis siguro sya pero dili
person who is not deaf, db?!
sya bakakon.
5. Not dumb or illiterate GONZALES v. CA
Because an illiterate person can see but it is difficult for him to The SC discussed what are credible witnesses.
give an intelligent testimony on the due execution of the will
during probate proceeding As to conviction, what if the accused is pardoned?
6. Domiciled in the Philippines It depends upon the reason of pardon.
Domicile is defined under Art. 50 of the CC  If he was pardoned because he was really innocent,
then he can be a witness. His qualification is now
Article 50. For the exercise of civil rights and the fulfillment of restored.
civil obligations, the domicile of natural persons is the place of  If it is by reason of executive clemency, the
their habitual residence. (40a) disqualification still remains because the fact still
remains that the person was really convicted which
The essential elements: affects his credibility or his capacity to tell the truth.
1. The fact or residing or physical presence in a fixed
place What about the notary public? Is he qualified to be a witness?
No. CF: Cruz v. Villasor because it would be impossible for
him to acknowledge before himself his very own acts. He As to the creditor also:
cannot split his personality and there might be conflict of
interest, If you are a witness and at the same time a legatee, devisee
or heir, you are disqualified.
Article 822. If the witnesses attesting the execution of a will
are competent at the time of attesting, their becoming And your creditor cannot get your inheritance in your behalf.
subsequently incompetent shall not prevent the allowance of
the will. (n) But if the device is directly given to your creditor, and you are
witness, that is a different thing. The creditor is not
disqualified because the legacy is directly given to him. He is
Take note here, the qualification should exist at the time of not claiming under a witness.
execution of the will. It doesn’t matter if subsequently he loses
that qualification. It would affect their ability to testify during Article 824. A mere charge on the estate of the testator for
probate but it would not affect the validity of the will. the payment of debts due at the time of the testator's death
does not prevent his creditors from being competent witnesses
What if all of them become incompetent at the time of probate to his will. (n)
of the will?
Then other witnesses may be presented. That’s under Sec. 20, If for example his will, the testator allocated some portion of
Rule 130. payment of his death and the creditor is also a witness of the
will, the creditor can still receive the debt due because that is
Article 823. If a person attests the execution of a will, to not an inheritance. That is the meaning of 824.
whom or to whose spouse, or parent, or child, a devise or
legacy is given by such will, such devise or legacy shall, so far Read the case of CALUYA v. DOMINGO.
only as concerns such person, or spouse, or parent, or child of
such person, or any one claiming under such person or But if the creditor is given over and above his collectible, and
spouse, or parent, or child, be void, unless there are three he is also a witness, he is disqualified to receive that amount
other competent witnesses to such will. However, such person which is over and above his collectible.
so attesting shall be admitted as a witness as if such devise or
legacy had not been made or given. (n) This would be the coverage of our exam.
 end 
We have here a case where the person who is a witness at the
same time, he is an heir, legatee or devisee. It may not be Advance Happy birthday ma’am! Wish namo nga pasaron mi
himself but his spouse, his child or his parent, is a legatee, nimo. 
heir, or devisee.
So what is the consequence of that?
The will is still valid. That person, his child, spouse or parent
who is a devisee, legatee or heir forfeits the legacy or device.
And so will be the creditors, also forfeits the right to claim.
UNLESS, there are other 3 witnesses, because his presence as

a witness is no longer material to the validity of the will. Just
disregard him.
What would be the reason why he is disqualified?
There would be a conflict of interest. If he stands to inherit

from the will, of course he would really attest that the will is
valid so that he can get the inheritance, legacy or device from
that will.
How about that witness is also a child or a compulsory heir?

Like the son of the testator?
As to his legitime, he would still receive his legitime. If he is

given over and above his legitime, he is then disqualified as to
the excess.

August 18, 2014 ran because by itself standing alone it is already valid as a codicil.
Even if we have a holographic will, it can be supplemented by
a notarial codicil as long as the codicil in itself is a valid notarial
CODICILS and INCORPORATION BY REFERENCE codicil. Meaning, it complies with all the formalities of a
notarial will.
Article 825. A codicil is supplement or addition to a will,
made after the execution of a will and annexed to be taken as Article 826. In order that a codicil may be effective, it shall
a part thereof, by which disposition made in the original will is be executed as in the case of a will. (n)
explained, added to, or altered. (n)
What if the codicil is void because it fails to comply with the

Art 825 defines what a CODICIL is. A supplement or addition formalities of will? Would it affect the will? NO. Only the codicil
to a will, it is made after the execution of a will and annexed to which is void is ineffective but the will which the codicil seeks
be taken as a part thereof, by which disposition made in the to supplement remains to be valid.
original will is explained, added to, or altered.
Now if you remember Art. 781 and 793, we discussed after-
In Latin, it is called a CODEX or literally a little will. But in acquired properties.
reality, a codicil is not really a little will. (Basig ginahuna huna
pud niyo murag codal - NO ) Usually gani there are times
that the codicil may be longer than the will which it seeks to Article 781. The inheritance of a person includes not only the
supplement but it is just called a little will because it is property and the transmissible rights and obligations existing
intended to explain, add to or modify a will. It is not really the at the time of his death, but also those which have accrued
primary will but just an addition. thereto since the opening of the succession. (n)
A codicil cannot exist without an original, valid will because as Article 793. Property acquired after the making of a will shall
the meaning says it is intended to explain, add to or alter a only pass thereby, as if the testator had possessed it at the
will, how can you alter, explain something which is not in time of making the will, should it expressly appear by the will
existence in the very first place? There has to be a valid will for that such was his intention. (n)
there to be a valid codicil. A codicil cannot exist independently
of a will. Art. 793 refers only to a legacy or devise so a legacy or devise
is effective only insofar as the property existing at the time of
What if the provisions of the will and the codicil are execution of the will. All those which are added to, acquired,
inconsistent with each other? Which shall prevail? It is the incorporated to that property after the execution of the will but
CODICIL because the purpose of the codicil (one) - is to alter before the death of the decedent would not be part of the
or modify a will so there may be times when the codicil would legacy or devise.
contain provisions which are completely inconsistent with a
will. So being the later expression of the testator, the Exception:
provisions of the codicil will prevail.
1- Under art. 793 itself – if the will expressly so
What kind of will can be supplemented by a codicil? What are provides; if the testator in his will expressly states
the 2 kinds of codicils that we have? that all other properties added, incorporated which
accrue to the devise or legacy are also included.
2 KINDS OF CODICIL 2- Rule on Codicils (The execution of the codicil which
republishes a will) – WHY? Because if a will is
supplemented by a codicil usually the will is deemed
1 – NOTARIAL CODICIL: it should comply with the
to have been executed as of the date of the codicil.
form of a notarial will
For example: Let’s go to Art. 793 first.
In year 1990, the testator executed
2 – HOLOGRAPHIC CODICIL: it should comply with the a last will and testament in that will he
form of a holographic will devised a 10 hectares parcel of land to A -
specific land located in Calinan, DC over the
If we have a notarial will, can we supplement it with a years – 10years – the land increased in value
holographic codicil? (vice versa) because of accretion. In year 2010, the land
already had 12 hectares and then, 2011 the
testator died. How much is included in the
Either way may be allowed. It may be notarial will-notarial
devise? Under Art. 793 unless otherwise
codicil, notarial will-holographic codicil, holographic will-
expressly provided for by the testator, the
holographic codicil or holographic will-notarial codicil. AS LONG
devise would only be limited to 10 hectares.
AS the codicil in itself is a valid will. It will not violate the rule
that the will has to be entirely written, dated and signed

What if in year 2010 the testator executed a will. Now in the will, (of course) you will have to mention
codicil and in the codicil he republished his your properties and you will have to mention to whom you
will – he mentioned that all other provisions are giving these properties. Do you have to re-write in
in my last will and testament executed in your will all those properties mentioned in your 100-page
1990 continue to be in full force and effect, inventory? Yes, you can but you don’t have to. You can
he died in 2011. How much will be included simply incorporate by reference that inventory into your
in the devise? This time 12 hectares because will. So you can mention in the will that you made an
by the execution of the codicil in year 2010 it inventory, you describe the inventory and you incorporate
is as if the will was made in year 2010. As of that inventory in the will.
that time, the land already had 12 H so it
now becomes an exception to the after- So that’s the reason why the document has to exist prior
acquired properties because the area (12 H) to the execution of the will so that we would be able to
is already the extent of the area that existed justify the incorporation because if that document is still to
as of the execution of the will. So dili na siya be executed then you might as well write the inventory in
maconsider na after-acquired properties the will itself. (Kay wala pa man diay ka nakabuhat so
technically. buhata na lang ibutang sa will pero kung naa nakay
nabuhat before for your convenience then you can just
Article 827. If a will, executed as required by this Code, incorporate that by reference.
incorporates into itself by reference any document or paper,
such document or paper shall not be considered a part of the (2) Must clearly describe and identify the document – so
will unless the following requisites are present: that you will be able to properly incorporate that
document into your will. The law says “stating among
other things the number of pages thereof” so you
(1) The document or paper referred to in the will should state in the will the number of pages of that
must be in existence at the time of the execution of document or paper.
the will;
(3) It must be identified by clear and satisfactory proof as
(2) The will must clearly describe and identify the the document or paper referred to therein.
same, stating among other things the number of
pages thereof; Actually, this is already ____ in the probate of the
will. You should be able to present proof whether
(3) It must be identified by clear and satisfactory intrinsic evidence or extrinsic evidence that the said
proof as the document or paper referred to therein; document is the one incorporated by reference in the
and will.
(4) It must be signed by the testator and the witnesses

(4) It must be signed by the testator and the
on each and every page, except in case of voluminous
witnesses on each and every page, except in case of
books of account or inventories.
voluminous books of account or inventories. (n)
The requirement is the pages of the document or

GENERAL RULE: In probate of wills, only documents or papers
paper to be incorporated by reference should be
which are executed in the form of wills can be allowed
signed by the testator and the witnesses in every
probate. That’s why codicils can also be probated.
page except in cases of voluminous books of account
or inventories.
ART 827 is actually the EXCEPTION. Why? Because even if the
paper or document mentioned in ART 827 is not in the form of
So do we mean that if we have voluminous books of
a will, it can be probated along with will. That is what we call
account or inventories there is no need for the
INCORPORATION BY REFERENCE.
testator and the witnesses to sign? No, there is still a
need to sign but not every page because it would be
REQUISITES (must be complied with): very impractical and inconvenient to require the
testator and all the witnesses to sign the each and
(1) The document or paper must be in existence at the every page. HOWEVER, A SUFFICIENT NUMBER OF
time of the execution of the will. PAGES HAS TO BE SIGNED. So the exception here is
not the signing but the signing on each and every
This is very basic. What is the reason why the law allows page, there is still a need to sign but not each and
incorporation by reference? Primarily, this is for every page only a sufficient number of pages for
convenience. For example, the testator had extensive these documents to be identified later on as the same
properties during his lifetime he already made an document incorporated by reference into the will.
inventory of his properties – the inventory itself amounted
to 100 pages and then later on he decided to execute a
In a notarial will, can we incorporate by reference any takes place in this country, when it is in accordance with the
document? YES. There is no impediment. provisions of this Code. (n)
In a holographic will, can we incorporate by reference any The laws governing the revocation of wills - the first thing that
document? NO because under ART 810 of the NCC, the you have to remember in revocation is that the citizenship or
holographic will must be entirely written, dated and signed in nationality of the testator is irrelevant. Actually ang magmatter
the hands of the testator. So if you incorporate by reference a sa revocation would be the domicile or residence of the
typewritten document into a holographic will, the will now is testator.
not entirely in the hands of the testator which is violative of
the form required under ART 810. If it is a holographic will you We have to remember 2 situations:
can actually still incorporate by reference a document but the
document has to be entirely written, dated and signed by the
testator. That’s the limitation insofar as incorporation by (1) If revocation is made in the Philippines – only
reference is concerned and it is a holographic will. Philippine law regardless of citizenship or even the
domicile.
REVOCATION OF WILLS AND TESTAMENTARY (2) If the revocation is made outside of the Philippines
DISPOSITIONS (In all cases the testator can follow the law of his
domicile):
Article 828. A will may be revoked by the testator at any time i. If made by a resident of the Philippines –
before his death. Any waiver or restriction of this right is void. can also follow the law of the place of
(737a) revocation
ii. If made by a non-resident – can follow the
What is revocation? law of place where he made or
executed the will
REVOCATION is an act of the mind terminating the potential
capacity of a will to operate at the death of the testator Article 830. No will shall be revoked except in the following
manifested by some outward and visible act or sign symbolic cases:
thereof.
(1) By implication of law; or
So when we say revocation, it presupposes that there is a valid
will and for some reason the testator would want to terminate (2) By some will, codicil, or other writing executed as
the potential capacity of the will to operate. provided in case of wills; or
Why potential capacity? Because during the lifetime of the (3) By burning, tearing, cancelling, or obliterating the
testator the will is not yet effective, it only becomes effective will with the intention of revoking it, by the testator
upon his death so even prior to becoming effective the testator himself, or by some other person in his presence, and
is already terminating that potential capacity of the will to by his express direction. If burned, torn, cancelled, or
operate at his death. obliterated by some other person, without the express
direction of the testator, the will may still be
The law says it may be revoked by the testator at any time established, and the estate distributed in accordance
before his death. Any waiver or restriction of this right is void. therewith, if its contents, and due execution, and the
Of course the testator can only revoke his will during his fact of its unauthorized destruction, cancellation, or
lifetime. It cannot be waived. This right is almost absolute. obliteration are established according to the Rules of
Why almost absolute? Is there any limitation of this right of Court. (n)
testator to revoke his will? There is actually one limitation
that is if he loses soundness of mind. Why? Because MODES OF REVOCATION
revocation just like execution of a will requires testamentary
capacity – animus testandi; revocation requires animus (1) By operation of law “By implication of law”
revocandi. So a person who is not of sound mind cannot
possibly revoke his will because he would not be acting
intelligently and with intent. That’s the only limitation. He There might not be any intention on the part of the
cannot revoke when he is not of sound mind. testator to revoke his will but because he did some act the law
presumes that those acts are intended to revoke the will.
Article 829. A revocation done outside the Philippines, by a

person who does not have his domicile in this country, is valid What are examples of revocation by operation of law?
when it is done according to the law of the place where the
will was made, or according to the law of the place in which a) ART 854 of NCC – Preterition
the testator had his domicile at the time; and if the revocation
When a testator omits a compulsory heir in the direct narevoke ba because the revocatory clause says itself that it
line, the institution of heirs in the will is annulled. In revokes all prior documents.
effect, there is revocation by operation of law
because all the institutions made in the will are b) IMPLIED REVOCATION – the 2nd document does
annulled when there is preterition. not contain any revocatory clause but the contents of
the 2nd document are completely inconsistent and
b) ART 957 of NCC – For example, the testator gave to A incompatible with the 1st document so they cannot
his parcel of land in Jacinto St, DC covered by TCT exist together, they cannot be reconciled at all. It is
no. *blah* - so it’s a devise – 2 years after the either the 1st will or the 2nd will but because the 2nd
execution of a will the testator sold the very same will is the later expression of the wishes of the
land to X. So what happens now to the devise? testator then the 2nd will is deemed to have revoked
Effective pa ba ang devise? No. it is deemed revoked. the 1st will.
What if at the time of death of the testator REQUISITES for revocation by a subsequent instrument
nabalik sa iyahang estate katong land? Would that
revive the devise? No, it remains to be revoked.
(1) There must be testamentary capacity at the time of
revocation – it requires soundness of mind. The
What if wala dyud diay intention si testator
testator must be intelligent to understand the
at the time he sold the land to revoke the devise, can
consequence of his act of revocation;
it be revived? Which will prevail – the presumption of
(2) The subsequent instrument must be valid – the 2nd
the law or the intention of the testator? No, the
will itself must be valid as a will. Even if there is a
presumption of the law will prevail. For that intention
revocation in the 2nd will but the 2nd will itself is not
to prevail, the testator should make manifest that
valid, that will cannot be given effect including the
intention by some outward or overt act. Unsaon man?
revocation contained in that 2nd document;
Under Art 957, if the testator reserves for himself the
right of repurchase the law would not presume
(3) The subsequent will or instrument must contain a
revocation. Sale pacto de retro/ sale with a right of
revocatory clause or be incompatible with the former
repurchase.
will thereby showing intent to revoke or animus
revicandi; and
c) ART 936 of the NCC – When a credit has been given
as a legacy is judicially demanded by the testator.
(4) The subsequent will or instrument must be admitted
to probate.
d) ART 1032 of the NCC – When an heir, legatee or
devisee commits an act of unworthiness.
For example, the testator executed a notarial will in
e) ART 106 of the FC – If a decree of legal separation is 1990 giving to A his properties. Subsequently the testator
granted by the court, automatically the guilty spouse made a holographic will in 1995 giving to B all his properties.
is disqualified to inherit from the innocent spouse. So Notarial will valid in all respects but it was superseded by a
if ever there was any testamentary disposition made holographic will which is also valid. The 2 wills are completely
by the innocent spouse in favor of the guilty spouse, incompatible with each other. So under the law on revocation,
that is already deemed revoked. the 2nd will must have revoked the 1st will.
(2) By subsequent document or instrument “By some will, Now the 2nd will was burned – no copy of the will was
codicil, or other writing executed as provided in case left (no carbon copy, no photocopy, wala tanan!) and a
of wills” witness is willing to testify as to the contents of this
holographic will because he memorized the holographic will.
So here, there is a 1st will and then there is another Who is entitled to the properties of the testator? A is entitled
document or instrument which is also in the form of a will (it to the properties of the testator because even if the
may be another will or codicil) and that 2nd document revokes holographic is valid and even if the holographic will revoked
the 1st will. the notarial will but because the holographic will was
completely destroyed and no copy of the will is available, the
There are 2 kinds of revocation under this mode: will cannot be admitted to probate. As we have discussed in
the of Gam v. Yap.
a) EXPRESS REVOCATION – when the 2nd will or
codicil contains a REVOCATORY CLAUSE
Gam v. Yap, 104 PHIL. 509, the Court ruled that "the
execution and the contents of a lost or destroyed holographic
Meaning, nakasulat dyud sa 2nd will na this will will may not be proved by the bare testimony of witnesses who
revokes the will which was executed in 1990 and all other have seen and/or read such will. The will itself must be
documents or instruments executed prior thereto. So naay presented; otherwise, it shall produce no effect. The law
revocatory clause. In that case, it is no longer confusing kung
regards the document itself as material proof of authenticity." revoked) so he took the envelope - save it from the fire and
when he opened the envelope, luckily, the will was not burned
(3) By overt act ” By burning, tearing, cancelling, or at all and kept it until the testator died. Was the will revoked?
obliterating the will with the intention of revoking it, Was there revocation?
by the testator himself, or by some other person in
his presence, and by his express direction. If burned, A: There was no revocation by an overt act
torn, cancelled, or obliterated by some other person, because no act of burning was seen in the will itself. For
without the express direction of the testator, the will revocation by an overt act to produce the effect of revocation,
may still be established, and the estate distributed in there must be animus revocandi and the overt act must be
accordance therewith, if its contents, and due made manifest in the will itself. Burning bisan gamay, tearing
execution, and the fact of its unauthorized bisag gamay na tear basta nay overt act made manifest in the
destruction, cancellation, or obliteration are will. Intent alone without an overt act would not produce
established according to the Rules of Court.” revocation. But there is another kind of revocation that
operated in that case, revocation by operation of law or
What are the overt acts mentioned under ART 830? implication of law because when we go to unworthiness,
Burning, tearing, canceling, obliterating. disqualification, incapacity – an heir who prevents the testator
from revoking his will becomes disqualified to inherit from the
testator. In that case, the heir is disqualified because he
a) BURNING – it is not required that all of the copies of prevented the testator from revoking his will by operation of
the will is burned, even the 1st page if it is the only law as to him, the will is revoked but as to other parts of the
page that is burned but there is intent to revoke and will, the will remains to be valid.
the act is directed against the entire will.
b) TEARING – gigisi nimo! Pwede sa kamot, pwede

gunting or shredder (walay nakabutang na shredding
noh? Wala pa siguro shredder ing.ani na time  BUT
it is equivalent to tearing). So not necessary na
murag gyud shredder ang pagka-tear bisan pag kaisa REQUISITES
lang nimo gigisi nga bisan gi-scotchtape nimo mabasa
pa gud siya pero there is intent to revoke – it
(1) The testator has testamentary capacity at the time of
amounts to revocation.
performing that act.
c) CANCELING – If you cancel out, place a line across
(2) The act must be any of the act mentioned under ART
the words, X the entire document that is equivalent to
830;
canceling.
d) OBLITERATING – when you blot out, you erase, any Roxas v. Roxas – the act of crumpling was
means of blotting (laway nimo gina-ana mo didto ), considered by the court to be enough to produce
tabunan ug papel. revocation as long as the act is considered as an act
of destruction. It is tantamount to an overt act of
revocation.
So as long as there is an overt act coupled with an
intent to revoke, it amounts to revocation. Act alone without
animus revocandi will not produce revocation. Intent alone or (3) The act must be a completed act. – Meaning, at least
animus revocandi alone without an overt act would not amount a completion of the subjective phase of the overt act.
to revocation. That’s why if we have a will that is torn it is not
presumed that it is already revoked unless we proved that it is (4) There must be intent to revoke or animus revocandi.
also done with animus revocandi. UNLESS we fall under the
presumptions as we will discuss in the case of Gago v. (5) The revocation must be done by testator himself or
Mamuyac. But if you see a will that is torn, you have to prove by some other person in his presence and under his express
that it was torn with animus revocandi for there to be direction.
revocation.
Article 831. Subsequent wills which do not revoke the
For example, in one illustration made by (I don’t previous ones in an express manner, annul only such
know unsa to na book ). There is a testator with intent to dispositions in the prior wills as are inconsistent with or
revoke placed his will in the envelope and threw the envelope contrary to those contained in the later wills. (n)
into a burning stove because he wanted to revoke his will by
burning. Seeing that the envelope was burning and satisfied The inconsistencies is not complete, there might be
with that, he went away. Unfortunately, an heir saw the situations when only some portions of the will are inconsistent
incident and knowing that he was one of the instituted heirs in with the later will. Only those portions which are inconsistent
the will (of course he did not want the will to be burned or
are revoked. We also apply here the DOCTRINE OF IMPLIED ineffective, the revocation made by that will of a previous will
REVOCATION – when there is a subsequent will executed after stands because the will still is valid, only the EXECUTION is
the first will, if they are completely incompatible with each INEFFECTIVE.
other – the 2nd will completely revoked the first will by
implication. If they are not completely incompatible but there Article 833. A revocation of a will based on a false cause or
are certain provisions which are incompatible, then only those an illegal cause is null and void. (n)
incompatible provisions are deemed revoked.
This is a revocation based on a FALSE CAUSE or an ILLEGAL

Gago v. Mamuyac (49 Phil 902) CAUSE. The law says, if that is your basis for the revocation,
the revocation is VOID.So what is the effect if the revocation is
In this particular case, the SC made pronouncements as to void? The will which is supposedly revoked still is effective and
when can there be presumption of revocation because as a stands as if there was no revocation.
general rule – we do not presume revocation.
Molo vs Molo
The law does not require any evidence of the revocation or
cancellation of a will to be preserved. It therefore becomes Why was the second will denied probate?
difficult at times to prove the revocation or cancellation of
wills. The fact that such cancellation or revocation has taken
place must either remain unproved of be inferred from The second will was not valid as to form. It is one requisite
evidence showing that after due search the original will cannot under the revocation by subsequent instrument or document
be found. Where a will which cannot be found is shown to that the second will should be valid. So if the second will turns
have been in the possession of the testator, when last seen, out to be void, even if there is a revocation in that second will,
the presumption is, in the absence of other competent it cannot be given effect.
evidence, that the same was cancelled or destroyed. The same
presumption arises where it is shown that the testator had So why is it that the first will should be given effect?
ready access to the will and it cannot be found after his death.
It will not be presumed that such will has been destroyed by The second will did not effectively revoke the second will.
any other person without the knowledge or authority of the
testator. The force of the presumption of cancellation or
How about if, the testator executed a first will and then
revocation by the testator, while varying greatly, being weak
subsequently with intent to revoke, he made a second will.
or strong according to the circumstances, is never conclusive,
Believing that the second will is valid, he burned or torn the
but may be overcome by proof that the will was not destroyed
first will.
by the testator with intent to revoke it.
Can we not say here that the first will was not revoked by
August 28, 2014
subsequent document because the second will was not valid as
to form nonetheless, the first will was still revoked by an overt
Ro.Jo. act of burning or tearing?
Article 832. A revocation made in a subsequent will shall Will it be correct?

take effect, even if the new will should become inoperative by
reason of the incapacity of the heirs, devisees or legatees
No. Apply the DOCTRINE OF DEPENDENT RELATIVE
designated therein, or by their renunciation. (740a)
REVOCATION – where the act or destruction is connected to
the making of a will so as really to raise the inference that the
This involves a valid will. All the formalities prescribed by law testator meant the revocation of the old, would depend upon
have been complied with but the will is INEFFECTIVE because the efficacy of the disposition, and if for any reason the new
the heirs instituted in the will died ahead of the testator or will, turns out to be ineffective or the new will intended to be a
became incapacitated to inherit or they repudiated their substitute is inoperative, the revocation fails and the original
inheritance. will stands in full force and effect.
Therefore, we cannot give effect to the institution, we cannot So we can say that his act of burning or tearing the first will
give the properties to the heirs mentioned in the will – the will was prompted by his false belief that the second will is already
is now INEFFECTIVE. valid. But since it turned out that the second will was not valid,
then the revocation fails and the original will still remains
But if that will for example, was executed revoking another effective.
will, would the revocation of the previous wills stand despite
the fact that the new will becomes ineffective? The law says
the revocation still stands. This is what we call the DOCTRINE
OF ABSOLUTE REVOCATION – even if the will becomes
Three modes of revocation – revocation by operation of law, Distinctions:

revocation by subsequent document or instrument and
revocation by means of overt acts. Republication – it is the re – Revival – it is the re –
establishment by the testator of a establishment to validity
How can we apply Article 833? How can we prove that the previously revoked will or one by operation of law of a
revocation of the first will was based on a false cause. which is invalid for want of proper previously revoked will.
execution as to form or for other
No problem in revocation by operation of law because it’s the reason for us to give validity to the
law which is not applicable here in Article 833. said will.
The previous will became
If it is revocation based on overt acts, burning tearing, invalid because of the
cancelling, obliterating – you can prove the false cause by following reason:
EXTRINSIC EVIDENCE. But if the revocation is based on a The previous will became invalid
subsequent document or instrument, the authority say that the because of the following reasons: 1. Only revocation
false cause for the revocation should be stated in the second by operation of
will or document, so only INTRINSIC EVIDENCE is allowed to 1. It was revoked law
prove the falsity of the cause in that kind of revocation. 2. The will did not comply
with the formalities
Article 834. The recognition of an illegitimate child does not
lose its legal effect, even though the will wherein it was made
should be revoked. (741) It involves the act of the testator; It involves that act of law
so it is the testator himself who – without the
One of the questions in the 1st exam, but the principle involved republishes the will intervention of the
therein is that the acknowledgment still stands because it is testator.
not an act of disposition (Characteristic of a will: A will must
contain a disposition of property). Despite the
acknowledgment, because it is not a disposition of property,
therefore the acknowledgment is valid even if it not in a form
of a will. Article 835. The testator cannot republish, without
reproducing in a subsequent will, the dispositions contained in
a previous one which is void as to its form. (n)
The recognition still stands even though the will where the
recognition is made is revoked. Because even if it is not a will,
that document would still be valid. The recognition of an It talks only of express republication or republication by the re
illegitimate child is not a disposition of property. – execution.
Two modes of Republication:
SUBSECTION 7. Republication and Revival of Wills 1. Express Republication or Republication by Re–

execution
Intro: For example the testator with intent to revoke torn his
will but after five months, he realized that he wanted to give We use this mode of republication if the
effect to that will and it was a notarial will; he spends so much original will is void as to form, that is,
for the drafting and notarization of that will. So he just decided when it does not comply with the formalities
to paste or scotch taped the will. And then he died later on provided in Articles 804 - 814; Article 818
and that will is found in his possession. Is that will valid? NO. (Notarial Wills).
Because it was revoked.
What if the testator had not testamentary
How about that fact that made an effort to paste or taped the capacity at the time when he made the will.
will? Still NO that is not the proper mode of REPUBLICATION. Is that will void as to form? No, but it is still
a void will.
There is also another concept: REVIVAL.
(It also applies in holographic wills in which
case, the testator should re – execute the
In these two concepts – Republication and Revival, it
will and comply with the formalities required
presupposes that there was a valid will and the valid will was
by law involving holographic wills.
revoked (the will becomes ineffective) but subsequently, the
will is now revived or republished (the will becomes effective
again).
2. Implied Republication or Republication by Article 837. If after making a will, the testator makes a
Reference second will expressly revoking the first, the revocation of the
second will does not revive the first will, which can be revived
This applies to a will which is void but not as only by another will or codicil. (739a)
to form e.g. the testator has no
testamentary capacity or the testator already This is a case where the second will expressly revokes the first
revoked his will. will. Even if the second will is itself revoked, the revocation of
the first will remains. This is the PRINCIPLE OF
How to republish the will? INSTANTER. The reason behind the principle is that
revocation takes effect immediately. It does not wait for the
death of the testator to become effective because revocation
The testator need not copy all the provisions
does not take the form of testamentary disposition.
in the old will. He can just execute a one
page document which also in the form of a
will and then mentioning in that document But for example, we have a first will which is impliedly revoked
that he executed a last will and testament on by a second will and the second will is itself revoked. What
a certain date and that he revoked that will happens to the first will? The first will is REVIVED. This is
but he would like to give effect to that will an example of revival of wills.
again. So he is republishing that will. So that
is why by reference. He referred to the old Another example of revival:
will in his new will.
The testator preterited a compulsory heir in the direct line e.g.
What if he would like to copy all the provisions in the old will he omitted his son in the will. So if there is preterition, the
even though the will is not void as to form, is it possible? YES, institution of heirs in the will cannot be given effect. The estate
there is no prohibition. of the decedent shall be distributed by legal succession. The
will is in effect revoked by operation of law because of
But if the will is void as to form, the only way of republication preterition.
is by express republication or republication by re-execution.
But if that heir who was preterited died ahead of the testator,
For example the new document, either of them is notarial will then there is no more preterition because dying ahead of the
and the other is a holographic will, and the way of testator, he never became an heir of the testator. Hence, there
republication is by reference. He cannot mix the two. The is a case of revival.
notarial and the holographic because under the law, the latter
must be entirely written, dated and signed by the hands of the Unless that son left his own child who can represent him, the
testator. So if you incorporate by reference in a holographic preterition would still stand. (Hence, no revival in this case)
will, a document which is not in the handwriting of the testator
is not allowed. So you can incorporate by reference to a new SUBSECTION 8. Allowance and Disallowance of Wills
holographic will an old holographic will.
Article 838. No will shall pass either real or personal property

Article 836. The execution of a codicil referring to a previous unless it is proved and allowed in accordance with the Rules of
will has the effect of republishing the will as modified by the Court.
codicil. (n)
The testator himself may, during his lifetime, petition the

This refers to the execution of a codicil. What is being court having jurisdiction for the allowance of his will. In such
mentioned here is republication by reference. This would only case, the pertinent provisions of the Rules of Court for the
apply if the old will is void but not as to form, because again if allowance of wills after the testator's a death shall govern.
it is void as to form, it cannot be republished by reference; he
has to re-execute the entire will.
The Supreme Court shall formulate such additional Rules of
Court as may be necessary for the allowance of wills on
I also mentioned this as an exception to Article 793, the rule petition of the testator.
on after – acquired properties. If the codicil republishes an old
will, the latter is deemed to be executed as of the date of the
codicil. So that is why if during the execution of the old will, Subject to the right of appeal, the allowance of the will, either
the land given is 10 hectares but it was republished in a later during the lifetime of the testator or after his death, shall be
codicil, this time it includes 12 hectares. So upon the death of conclusive as to its due execution. (n)
the decedent the device would cover 12 hectares. It now
becomes an exception to the rule on after – acquired Probate of wills
properties.

The first paragraph of Article 838 implies that probate is final and executory and you can never raise the principle that
MANDATORY.If the testator died with a will, the will has to probate of wills is imprescriptible.
be probated. Even if you think that the will is not valid, it has
to pass probate because it is only the probate court which can Once the decree of the probate court becomes final, it is
decree or declare that the will is not valid. conclusive as to the due execution of the will.
For example, there is a last will and testament giving “A” a Mercado v Santos
specific parcel of land. Based on that will, can A file an action
for the recovery of that parcel of land? Or can he file an action
Case for falsification.
for ejectment against the occupants therein? No. Unless the
will is allowed probate, it is just a mere scrap of paper. It does
not give rise to any rights. You cannot invoke a will which is What is the significance of the allowance of a will?
not probated.
Once the decree of the probate court becomes final, it is
Maninang v Court of Appeals conclusive as to the due execution of the will – the will is
genuine, not forged, falsified. So if later on a case is filed
claiming that the will was forged etc., even if it is a criminal
Probate is required by reason of public policy.
case, it will not prosper.
For example, if all the heirs just agreed to keep the will (since
What would be the effect if you allow the criminal proceeding
probate proceedings are expensive and time consuming) and
to prosper?
they just extra judicially partitioned the properties among
themselves (already published and transferred the titles in
their names). Is the extrajudicial partition valid? NO. Can that Since the probate court already proved that the will is not
will still be probated? Yes because the probate of the will is falsified, if you allowed the criminal prosecution to prosper, it
mandatory. Even if they already executed and implemented would be disturbing an otherwise final judgment of the probate
the extrajudicial partition, still if there is a will, it can always be court. That is not allowed. Res Judicata! Conclusiveness of
probated. They are not bound by their extrajudicial partition Judgment. It is already conclusive as to its due execution. But
otherwise the will would be rendered nugatory. only as to its due execution.
Aside from being mandatory by reason of public policy, In your Special Proceedings, Rule 76 – Rule on allowance or
probate proceeding is also a proceeding in rem – it means that disallowance of wills and also in Rodriguez v Borja, for the
once the decree of the probate court becomes final and probate court to acquire jurisdiction, it is either the will is
executory, it is already binding against the whole world. delivered to the court or a petition is filed.
The requirement of publication must be complied with because What court has jurisdiction to probate wills?
it is jurisdictional – it is the one which confers jurisdiction on
the probate court and is the one which binds the whole world It depends upon the PROBABLE GROSS VALUE of the ESTATE.
as to the decree of the probate court.
As to the participants in a probate proceeding, can any person
The principle of estoppel is NOT applicable in probate participate? NO. See Rivera v IAC – if the one who contest is
proceedings. Even if the heirs already partitioned the property not an heir or a total stranger, then he has no personality to
and received benefits therefrom, and then one of them even oppose. The will is deemed not contested.
the signatory, would later on petitioned the court for the
probate of the will, he is not deemed to be in estoppel.
Leviste v CA
The right to ask for probate does not prescribe. No law

Contingency Fee – Can he not invoke that provision?
provides the prescriptive period for the probate of the will. The
will can always be probated any time.
Example there is an inheritance given to an heir and the heir
has several creditors and he has no other properties except
But after filing of the petition for probate and then the probate
that inheritance given to him and unfortunately that heir
court disallowed the will (although you do not agree with the
repudiates the inheritance, the prejudiced creditors can
ruling of the court), you cannot say that since the probate of
petition the court to accept that inheritance of the heir.
the will is imprescriptible, then I will just appeal it later. NO.
You cannot do that. Because once the petition is filed, you are
already bound by the reglementary periods under the Rules of He did not become a creditor of the heir because his fees were
Court. So if the probate court disallowed the will and you do contingent. The contingency did not arise.
not agree with that disallowance, then you should file an
appeal within the reglementary period. Otherwise it becomes
Was the client here an heir? NO. So SC held that Article 1052 a legatee or a devisee nor a creditor. So, the opposition was
presupposes that the obligor is not an heir. Here Rosa was not denied. (from 2013 tsn)
a legal heir because the petition for probate was dismissed and
she lost her right to inherit. Because her inheritance was only The law says in Article 838 provides that: “The testator himself
dependent upon the will, she was not a legal heir. Now that may, during his lifetime, petition the court having jurisdiction
the petition for probate was denied, she had nothing to anchor for the allowance of his will. In such case, the pertinent
her claim as an heir. In the same manner, he cannot claim that provisions of the Rules of Court for the allowance of wills after
he is a creditor of an heir because in the first place, the the testator's a death shall govern.” With that we have:
supposed heir is not an heir and he is not a creditor.
Two kinds of Probate:
What is the reason for the rule excluding strangers?
1. Ante mortem probate – this is the one instituted by
The reason for the rule excluding strangers from contesting the testator; Even if the will is admitted probate, it
the will, is not that thereby the court may be prevented from does not mean that the will cannot be revoked.
learning facts which would justify or necessitate a denial of 2. Post mortem probate – instituted after the death
probate, but rather that the courts and the litigants should not by the testator
be molested by the intervention in the proceedings of persons
with no interest in the estate which would entitle them to be
Matters Resolved in the Probate
heard with relation thereto (Leviste case citing Paras v Narciso)
Basic rule: The probate court only resolves matters pertaining

Butiong vs. Surigao Mining L-13938 July 31, 1968
to the EXTRINSIC VALIDITY OF THE WILL; what are these
matters? –
Christian Harris executed a last will and testament disposing of
his properties located in the Philippines consisting of shares of
o Whether the instrument offered for
stocks and interests in the Mindanao Mining Incorporated and
probate is the last will and testament of
1% royalty in Surigao Consolidated Mining Inc. So, Butiong
the decedent
here was constituted as the sole heir; universal heir of the
 This is a question of identity
testator, he filed a petition for probate. Now, Surigao Mining
o Whether the will was executed
Inc opposed the probate upon the ground of forgery.
according to the formalities prescribed
by law
Butiong questioned the personality of Surigao to file the  This is a question of due
opposition. Because although the properties subject of the will execution
also included shares of stocks and royalties surigao o Whether the testator had testamentary
consolidated mining, it has a separate personality from the capacity at the time of execution’
stock holders.  This is question of
testamentary capacity
So the fact that he has shares of stock in the company does
not follow that it has the right to intervene in the probate or Questions as to whether a certain person is an heir of the
settlement proceeding. testator is not allowed during probate proper because it
pertains to the intrinsic validity of the will. Questions as to
So SC held that Surigao Consolidated had no personality to validity of inheritance; whether or not a legacy is void;
intervene or oppose the probate. It was not considered as an preterition; ownership of property; filiation – not resolved
interested person. (2014 tsn) during probate.
Does Surigao Mining has the personality to oppose the 2 Phases of Probate Proceedings
probate? Unsa gani to iyang role? Si testator owned 1%
royalty in Surigao Consolidated Mining Inc. he gave the royalty 1) Probate proper – the probate court determines the
to Butiong. Here the company opposed the probate on the extrinsic validity of the will
ground of forgery. Can he oppose? Does he have the 2) Distribution Phase – Questions pertaining to the
personality? NO because even if Surigao Consolidated owned intrinsic validity of the will are already entertained.
the shares of stocks but you have to remember in Corporation (e.g. those mentioned in the preceding paragraph)
Laws that the corporation has a personality separate and
distinct from its stockholders. So, even if the shares of stocks
General Rule: Probate Court has no jurisdiction to resolve
which were disposed by the testator were owned by the
matters pertaining to the intrinsic validity of a will.
corporation but did not give the corporation the right to
intervene in how those stocks are to be disposed by the
testator. So, it did not have the personality to intervene. He Exceptions:
does not place an interest in the succession. He is not an heir,
1) Spouses Ajero vs CA (Issue: ownership of the Remember, in these cases where the court rule on the intrinsic
property) validity of the will, the ruling of the probate court is merely
probational; it is not conclusive. Its ruling is conclusive
As a general rule, courts in probate proceedings are only to the due execution of the will.
limited to pass only upon the extrinsic validity of the
will sought to be probated. However, in exceptional Also, it does not follow that once it is alleged that there is
instances, courts are not powerless to do what the preterition, the probate court will automatically adopt the
situation constrains them to do, and pass upon exception. No!
certain provisions of the will. In the case at bench,
decedent herself indubitably stated in her holographic But, compare in the case of Maninang v CA, there is a
will that the Cabadbaran property is in the name of question whether or not it is a case of invalid disinheritance or
her late father, John H. Sand (which led oppositor Dr. preterition. So you cannot just escape the probate proper
Jose Ajero to question her conveyance of the same in because there is a question of disinheritance and this can only
its entirety). Thus, as correctly held by respondent take effect in a valid will. So you have to determine whether
court, she cannot validly dispose of the whole the will is extrinsically valid before you can rule on the issue of
property, which she shares with her father's other invalid disinheritance.
heirs.
Or even if there is preterition and there are legacies and
In cases where ownership of the property subject of devices given in the will. Under Article 854, when there is
the estate is in question, as a general rule, the preterition, the institution of heirs is annulled. But if there are
probate court cannot pass upon the ownership of the legacies and devices which are not inofficious, they shall be
property. But in this case, the court said that it is respected. So even if the question of preterition is raised, but
exceptional because it is very patent upon the face of there are legacies and devices given, you really have to rule
the will that the property is not her property. It first on the extrinsic validity of the will. Because how can you
included a property which is not owned by the determine whether or not these legacies or devices are to be
decedent. given.
The significance here is just, for the purpose of Natcher v CA

determining whether or not the property should be
included in the inventory of the properties because
The court acting on its general jurisdiction cannot pass upon
once you filed a petition for probate, the executor will
matters pertaining to the probate court.
have to make an inventory of the properties of the
decedent, it does not follow that once the executor
included a certain property as part of the estate of Why did that issue on advancement arise?
the decedent, that such inclusion is already final even
if that inventory is approved by the probate court. As compulsory heirs, they are entitled to their legitimes. If for
example, the testator during his lifetime made dispositions to
If there are people who opposes the inclusion of his compulsory heirs, those disposition should be considered as
certain property in the estate, that question of advances to their legitimes.
ownership despite the approval of the court, can still
be based in another proceeding – for the recovery of The RTC acting in its general jurisdiction cannot determine
the property and determination of the question of whether or not such disposition can be considered as an
ownership. advancement because it is only the probate court which can
decide on that issue because even before you can determine
2) Or as to filiation like in the case of Rivera v IAC, the whether or not the said disposition is inofficious, you have to
filiation of the oppositor was questioned. What was compute first the legitime by determining what are the
the purpose? To determine whether that he had the properties of the decedent, then his obligations, donated
personality to oppose the probate. That is another properties during his lifetime. Then you arrived at the NET
exception. ESTATE, then compute the legitimes. Then determine whether
3) When it involves Preterition (Cayetano v Leonidas) certain heirs already received in advance portions of their
legitimes. That cannot be done by the RTC acting in its general
jurisdiction. Those can be properly addressed by the probate
If preterition is very apparent on the face of the will
court.
itself, the cannot will not waste its time and effort to
go through the process of determining whether or not
the will is valid when in the end, that valid will still Conversely, if the probate court cannot decide with finality
cannot be given effect because of preterition. issues not pertaining to the extrinsic validity of the will, the
same thing with RTC acting on its general jurisdiction. They
cannot interchange their jurisdiction.

If the will was executed with force or duress or fear or threat.

This connotes idea of coercion which may be physical or
SEPTEMBER 1, 2014 (Justin) mental coercion. Take note that in obligations and contracts,
the presence of these vices of consent would serve to annul a
contract, contract is voidable. But their presence in the will
Exception to the GR that only matters pertaining to the
makes the will void.
extrinsic validity of the will are discussed during probate
proceedings.
Undue influence occurs when a person takes improper
advantage of his power over the will of another, depriving the
We discussed the case of NACHER and then CAYETANO. latter of reasonable freedom of choice. It must be of a kind
that so overpowers and subjugates the mind of the testator as
Just remember that when the decree of the probate court to the ... And making express the will of another rather than
becomes final, it becomes conclusive but only as to the due his own.
execution of the will. Other matters can be trenched(?) out in
a separate proceeding. In the case of Icasiano v Icasiano, SC mentioned that there is
no undue influence even if some heirs are favored over other
Art. 839. The will shall be disallowed in any of the heirs because diversity of apportionment is usually the reason
following cases: of making a will. If you do not favor any heir and you just
want them to receive equal shares, then you just might as well
die intestate.
(1) If the formalities required by law have not been complied
with;
Fraud is the use of insidious machinations to convince a person
to do what ordinarily he would not have done. There must be
(2) If the testator was insane, or otherwise mentally incapable
intent to defraud. SC said that fraud and undue influence are
of making a will, at the time of its execution;
equally repugnant and excludes each other. Their joining as
grounds for opposing probate shows the absence of ...
(3) If it was executed through force or under duress, or the evidence for the validity of the will. In fraud, you conceal the
influence of fear, or threats; real facts in making a will. In undue influence, he knows the
facts but his mind and will is subjugated.
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other We have the case ORTEGA v BELMONTE. Placido was 80
person; yrs. old. He married Josephina who was then 28 yrs. old.
Placidido, pensionado, had a sister but he lived with his wife.
(5) If the signature of the testator was procured by fraud; Later on, he died. He made a notarial will in English, consisting
of two pages. (Ma'am reading the disposition, everything given
to wife) Josephina filed a petition for the probate of the will.
(6) If the testator acted by mistake or did not intend that the
Leticia, the sister opposed. (Ma'am read the grounds)
instrument he signed should be his will at the time of affixing
According to her, the circumstances surrounding the execution
his signature thereto. (n)
of the will are indicative of fraud particularly, the wife and sole
beneficiary connived with the notary public and witnesses to
Ground provided for under 839 are exclusive. make Placido sign the will.
Perhaps the only thing we can to 839 is the revocation of the As to fraud, SC said fraud is a trick, secret, device, false
will. Even if there is already a will but has already been statement or pretense by which the subject is instituted. It
revoked, it cannot also be allowed probate. may be of such character that the testator is misled or
deceived as to the contents of the document which he
Take note under 1, formalities (804-814) prescribed by law executes, or it may related to some extrinsic fact in
should not be complied with, both for holographic and notarial consequence of the deception regarding which the testator is
wills. led to make a certain will, which but for the fraud, he would
not have made. The party who alleges fraud has the burden of
proof that the fraud existed during the executed of the will.
Second, the testator had no testamentary capacity. Insane or
Other than the self-serving allegations of the petitioner, no
mentally incapable of making a will, at the time of its
evidence of fraud was ever presented. Also, the omission of
execution.
some relatives does not affect the due execution of the will.
That the testator was made into signing the will does not
Number three, Lack of voluntariness. Vitiated consent. Also sufficiently establish fraud by the fact that he instituted his
number 4, 5 and 6. wife who is more than 50 yrs. of his age as the sole
beneficiary, and disregarded his sister and his family who has
Let's go the vices of consent. taken care of the testator in his twilight years.
How about if the dates appearing in the will had different he can be liable but only up to the value of his inheritance.
dates? The varying dates, the SC said, it does not hold water
because the law does not even require that the notarial be Who can be instituted as heirs? Persons, walay labot ang pets.
executed and acknowledged on the same occasion. The will Natural and juridical persons. If it is a corporation, it depends
must be subscribed by the testator and the three witnesses upon its charter. Even the soul can be instituted as heir. The
who must also attest in the presence of each other. They must poor in general, they can be instituted. For natural persons,
also attest before a notary public. But the variance in the dates comply with articles 40 and 41 of the civil code.
of the will as to its supposed execution and attestation was
satisfactorily explained by the notary public and instrumental
Art. 40. Birth determines personality; but the conceived
witnesses.
child shall be considered born for all purposes that are
favorable to it, provided it be born later with the
Petitioner also failed to prove conspiracy. There was no conditions specified in the following article. (29a)
showing that witnesses of the instrument stood to receive any
benefit from the allowance of the will. The testimonies of the
Art. 41. For civil purposes, the fetus is considered born
three subscribing witnesses and the notary public are credible
if it is alive at the time it is completely delivered from
evidence of its execution.
the mother's womb. However, if the fetus had an intra-
uterine life of less than seven months, it is not deemed
HOW ABOUT REVOCATION AND DISALLOWANCE? HOW born if it dies within twenty-four hours after its
DO WE DISTINGUISH THEM? complete delivery from the maternal womb. (30a)
First, revocation is the voluntary act of the testator.

Disallowance is by means of a judicial decree. He should attain juridical or civil personality which is
determined by birth. Even if there is still a fetus in the womb
Second, revocation may be with or without cause. and you are given inheritance, you can receive inheritance if
Disallowance has to be with cause, based on those provided you are born. But if the fetus had an intra-uterine life of less
for my law. than 7 months, dapat mabuhi sya for at least 24 hours. If not,
there is no succession from the testator to the fetus. The
Revocation may be partial or total. Disallowance is generally institution does not become effective. It will go the legal heirs
total except when there is fraud, undue influence which affect of the testator. But if he lives for 24 hours and dies on the
only part of the will. 30th hour, he inherits. It goes to the heirs of the fetus.
Revocation is done during the lifetime of the testator. He acquires the rights to the inheritance but only limited to the
Disallowance is usually invoked during the death of the disposable portion. The instituted heir cannot impair the
testator. legitimes of the compulsory heirs. When we say instituted
heirs, they are the ones designated by the testator in the will
as distinguished from compulsory heirs who are given legitimes
But in both cases, the affected will cannot be given effect. under the law, like legitimate children and descendants,
legitimate parents and ascendants, surviving spouse and
SECTION 2. - Institution of Heir illegitimate children.
Art. 840. Institution of heir is an act by virtue of which Can he institute his daughter as heir also? YES. If a
a testator designates in his will the person or persons compulsory heir is given a share over and above his legitime,
who are to succeed him in his property and insofar as that portion, he is a voluntary heir, an instituted
transmissible rights and obligations. (n) heir. But when it comes to compulsory heirs, there is no need
to institute them as heirs because they are assured of their
legitimes.
840 defines institution of heirs. You designate persons in your
will who will receive inheritance from your estate.
Please remember when are talking of institution of heirs, we
We are referring to heirs as distinguished from heirs and are only talking about the free portion, the disposable portion.
devisees. When we say heirs, they are the ones given aliquot
portion, ideal share, or the entire estate but devisees and In institution, the presumption is that instituted heirs inherit
legatees are given specific property. Although, generally, some equal shares unless otherwise expressly provided for by the
of the provisions in the institution of the heirs may be applied testator.
to devisees and legatees.
WHAT ARE THE REQUISITES FOR A VALID
What are the characteristics of an instituted heir? They are INSTITUTION OF HEIRS?
instituted to ideal, aliquot, spiritual share. Second, the heirs
continue the personality of the testator. As for the obligations,
1) The will itself must be extrinsically valid. The will has to comply If he has compulsory heirs, he can dispose the portion
with the formalities, whether it is a notarial will or a pertaining to the free portion. But even as to the free portion,
holographic will. he can only dispose to qualified persons.
2) Will must be intrinsically valid. There must not be any Art. 843. The testator shall designate the heir by his
impairment of the legitime. If it does, the institution can be name and surname, and when there are two persons
disallowed in total or it can be reduced. having the same names, he shall indicate some
circumstance by which the instituted heir may be
Heir must also be certain or ascertainable. I hereby institute known.
some of pretty students as heirs. (Some are claiming pero wala
juy gwapa sa ilaha :P) Even though the testator may have omitted the name
of the heir, should he designate him in such manner
There should be no preterition. In preterition, the institution of that there can be no doubt as to who has been
heirs is annulled. instituted, the institution shall be valid. (772)
3) Institution must be effective. Instituted heir should not Ideally, the institution must mention the first name and
predecease the testator or should not be found incapacitated surname of the heir. For person having the same first name
to inherit from the testator, or should not repudiate the and surname then, he should designate by any description.
inheritance.
To my most beautiful daughter. For as long as it can be
Art. 841. A will shall be valid even though it should not identified. Warning Punchline: If only daughter, maidentify jud
contain an institution of an heir, or such institution sya unless kung naa pa syay lain na beautiful daughter among
should not comprise the entire estate, and even though his sons.
the person so instituted should not accept the
inheritance or should be incapacitated to succeed. Nickname, pwede gihapon.
In such cases the testamentary dispositions made in If there is a doubt, two claims to be the beautiful daughter.
accordance with law shall be complied with and the After using all the rules in the interpretation of wills, it cannot
remainder of the estate shall pass to the legal still be identified, no one will receive. It shall go by way of
heirs. (764) intestacy. If you give half to each, that would be defeating the
wishes of the testator.
(Recitation on provision)
Art. 844. An error in the name, surname, or
Disinheritance is not an institution of heirs although it is a
circumstances of the heir shall not vitiate the
disposition of property. In disinheritance, you are designating
institution when it is possible, in any other manner, to
persons who will receive but in fact, you are designating
know with certainty the person instituted.
persons who will not receive.
Why is the will still valid even if the person died, repudiated or If among persons having the same names and
becomes incapacitated to succeed? Why is it significant? Will is surnames, there is a similarity of circumstances in such
still valid, only the institution becomes ineffective. If that will a way that, even with the use of the other proof, the
revoked another will, even if the institution of heirs mentioned person instituted cannot be identified, none of them
in that later will cannot be given effect, the revocation of the shall be an heir. (773a)
earlier will still stands.
To my sister, Albert Remollo. This does not vitiate. It's just a

Art. 842. One who has no compulsory heirs may simple mistake of description.
dispose by will of all his estate or any part of it in favor
of any person having capacity to succeed. To my adopted child, Adam Dandro. It turns out he is not
legally adopted. This will not vitiate the institution.
One who has compulsory heirs may dispose of his
You can use the evidence in 789, extrinsic evidence or intrinsic
estate provided he does not contravene the provisions
evidence to resolve the ambiguity. Oral declaration of the
of this Code with regard to the legitime of said heirs.
testator during his lifetime is not allowed.
(763a)
Art. 845. Every disposition in favor of an unknown
So when a testator has no compulsory heirs, he can give his person shall be void, unless by some event or
testate to anybody, as long as that person is also qualified to circumstance his identity becomes certain. However, a
receive. Testator has absolute freedom of disposition. disposition in favor of a definite class or group of
persons shall be valid. (750a)
By SGM
Disposition in favor of an unknown person. What is an
unknown person? One who cannot be identified? To my Article 848. If the testator should institute his brothers and
student. To my friend. sisters, and he has some of full blood and others of half blood,
the inheritance shall be distributed equally unless a different
If it is undeniable, it will then be valid. To my student who will intention appears. (770a)
get the highest score in the final exam. As of now, it not
identifiable but it will be identified later on.
Here, the testator instituted his brothers and sisters in his will
Class or group. My cousins. My neighbor if tag-bukid ka and isa and he did not mention what are the respective shares of his
lang imong silingan :)) brothers and sisters. These brothers and sisters, some are half
blood, some full blood.
Also in 959, disposition can be given to relatives. It says
nearest in degree. I hope you already know what we mean by full blood and half
blood.
The poor under 1030. There is a criteria to know who are
these persons composing the class who is poor in the will. Full blood meaning you have the same father and mother.
How do we identify? Not necessarily during the lifetime but for

Half blood meaning you either have, same mother but
as long as the person can be identified. According to
different father or the other way around.
authorities, the identification may happen before or after the
death of the testator, as long as the heir instituted who is later
on identified is living at the time of death of the testator. If he What if this is the situation?
died ahead, he cannot inherit because he never became an
heir. I hereby institute, A, B, C, and D as my sole heirs. Some of
them are half blood brothers and sisters, A and B. C and D are
Art. 846. Heirs instituted without designation of shares full blood.
shall inherit in equal parts. (765)
How do we divide the estate?
I hereby institute ABC as my heirs, the estate is 1.2M. When The law says equal, unless a different intention appears.
institution is silent, divide it by 3 in equal shares. If A is a child
of the testator and the heirs are not situated in the same The law presumes that because the testator instituted them in
juridical situation, give the legitime (600K) first to the his will, and did not mention how much should each receive,
compulsory heir. The free portion to be divided by 3 (200K did not specify the sharing. The presumption is equal.
each).
Why? Because it is institution. Had the testator wanted to
give more to the full blood, he could have done so by
Art. 847. When the testator institutes some heirs expressing that intention in the will. But the will is silent. So
individually and others collectively as when he says, "I presumption, equal lang iyang affection.
designate as my heirs A and B, and the children of
C," those collectively designated shall be considered as You should remember this because in legal succession, walay
individually instituted, unless it clearly appears that will, if the heirs are all brothers and sisters, some in full blood
the intention of the testator was otherwise. (769a) some in half blood. How do we divide? Under legal succession,
twice as much to the full blood, so half lang sa share sa
full blood ang share sa half blood. Because, the law presumes
This is the principle of individuality. na mas dako ang affection sa testator sa full blood kaysa sa
half blood.
A and B and the children of C, X and Y. We consider them as
individually instituted so we divide by 4. Article 849. When the testator calls to the succession a
person and his children they are all deemed to have been
(Recitation on NABLE v UNSON) instituted simultaneously and not successively. (771)
Even those who are collectively designated shall be considered

Here, we have the principle of simultaneity, if the testator
individually instituted.
institutes a person and his children, it doesn’t mean that the
person has to enjoy the inheritance first and after he dies, the
September 4, 2014 (Thursday) children.

It means they are instituted simultaneously, not one after the So who will receive? Legal heirs (If there is no substitute.. will
other but at the same time. discuss later)
I hereby institute X and his children as my sole heirs. The How about an illegal cause?
children of X are Y and Z.
Can the institution be given effect if there is a mention of an
So X, Y, Z will inherit at the same time. Unless, there is an illegal cause?
express provision to the contrary.
The rule here is: if there is a relationship between the
Article 850. The statement of a false cause for the institution testator and the heir, such that even if the illegal cause
of an heir shall be considered as not written, unless it appears did not exist, he would still give to the instituted heir,
from the will that the testator would not have made such by reason of his generosity or liberality, then the
institution if he had known the falsity of such cause. (767a) institution can be given effect.
The institution is made, and there is a false cause stated in the But if the only reason for the institution is the illegal
institution. cause, we have the law on capacity, a prohibition for a
testator and an heir, the testator cannot give
For example, because A saved my life, I hereby institute A to something or any testamentary disposition to a person
½ of my estate. but it turns out that A did not save the life of in consideration of a crime.
the testator. Can A receive the inheritance?
Ex. Crime is illegal
YES. It is just a false cause. It is not a condition for him to
inherit. That cannot be given effect, the heir is also disqualified to
inherit from the testator.
Unlike when, if A will save my life, I will institute A. in that
case, saving the life of the testator is a condition. It has to Take note: a false cause was discuss in revocation of wills.
happen first, or proven first, before the institution will be
effective. What is the effect of false cause in revocation? Revocation is
not effective. It fails. So the will, that was supposedly
Here, it is just a statement that A saved the life of the testator. revoked, can still be given effect.
Example #2, To my beautiful bestfriend A, but is not beautiful In institution, if based on a false cause, the institution still
at all or A is a frenemy of the testator. So dili diay tinuod. stands or is effective. The heir can still inherit.
Nonetheless, it will not vitiate the institution because the In both cases, the heir can still get their inheritance.
underlying consideration is the liberality or generosity of the
testator, not the cause. Article 851. If the testator has instituted only one heir, and
the institution is limited to an aliquot part of the inheritance,
Now, if for example, because here, the law says: unless it legal succession takes place with respect to the remainder of
appears from the will that the testator would not have made the estate.
such institution if he had known the falsity of such cause.
The same rule applies if the testator has instituted several
Here, it must be very clear from the will itself that, had the heirs, each being limited to an aliquot part, and all the parts do
testator known of the falsity of the institution, he would not not cover the whole inheritance. (n)
have instituted the heir.
I would have instituted B, my best friend as heir to ½ of my

estate, but because A saved my life, and I feel that I am The institution is only to an aliquot part of the estate, it does
indebted to A, I hereby institute A as my heir to ½ of my not comprise of the entire estate.
estate.
The testator instituted A to ¼ of his estate.
But it turns out that A did not save the life of the testator, will
A receive the inheritance given? NO. the law is very clear.
What happens to the ¾? It shall go by legal succession. Only
¼ shall go to the instituted heir.
Will B receive instead? NO because he was not instituted.

To A 1/4, to B 1/8. 000 000 x

50,000
Does it cover the entire estate? NO, naa gihapon sobra. The C 2/ 16 16 800,00 800,00
remainder shall go to the legal heirs. 3 / 0 0
34,
24 x 834,782
782.6
Article 852. If it was the intention of the testator that the 24 1,200, 1,150, .61
1
instituted heirs should become sole heirs to the whole estate, 000 000 x
or the whole free portion, as the case may be, and each of 50,000
them has been instituted to an aliquot part of the inheritance 23 1,150,
and their aliquot parts together do not cover the whole / 000 50,00 1,200,00
inheritance, or the whole free portion, each part shall be 0 0
increased proportionally. (n) 24
1,200,
Here, the institution is also in aliquot portions. But if you add 000
all those portions, they do not cover the entire estate. but the
intention of the testator is to give everything to these -
instituted heirs. 1,150,
000
How do we distribute? Each part shall be increased
proportionally. 50,000
**
Problem 1: Easy level 
Ex. I hereby institute A B and C, with the ratio of 1/4 each and
they shall be the sole heirs to the entire estate. the estate is Article 853. If each of the instituted heirs has been given an
1.2B. aliquot part of the inheritance, and the parts together exceed
the whole inheritance, or the whole free portion, as the case
Solution: may be, each part shall be reduced proportionally. (n)
Estate: 1.2B This is the opposite of Art 852. The instituted heirs are given
more than the whole of the entire estate.
A 1/4 300,000 1,200,000 + 100,000 400,000
B 1/4 300,000 + 100,000 400,000 Estate: P1,200,000
C 1/4 300,000 -900,000 + 100,000 400,000
A 1/ 6/2 4 300,00 300,00
300,000 4 4 0 0
24 x 12,0 288,0
3/4 900,000 1,200,0 1,250,0 00 00
/3
00 00 x
50,000
100,000** B 1/ 3/2 3 150,00 150,00
8 4 0 0
*** 24 x 6,00 144,0
1,200,0 1,250,0 0 00
Problem 2: Difficult level  00 00 x
50,000
A 1/ 4/ 4 200,00 200,00 C 2/ 16/ 16 800,00 800,00
6 24 0 0 3 0 0
24 x 8,695. 208,695 24 24 x 32,0 768,0
1,200, 1,150, 65 .65 1,200,0 1,250,0 00 00
000 000 x 00 00 x
50,000 50,000
B 1/ 3/ 3 150,00 150,00 25/ 1,250,0
00 50,0 1,200,0
8 24 0 0 6,521. 156,521 00 00
24 x 74 .74 24
1,200, 1,150, 1,250,0
00
But if it is worded as: I heredy exclude A. or I hereby
- disinherit A. then that is not pretirition because you
1,200,0 did not omit A. in fact you mentioned A and you said
00 that you will exclude A. that will be governed by the
law on disinheritance.
50,000 What kind of omission? To what extent?
(excess  He should be omitted entirely in the will. He is

) not given any inheritance, legacy or devise.
Nothing at all was left to him at will.
Example: I have several children, I have my children

as A B C D E F and G. in the will he distributed his
Article 854. The preterition or omission of one, some, or all
estate but he did not give anything to G. although G’s
of the compulsory heirs in the direct line, whether living at the
name was mentioned as one of the children.
time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devises and
Is there preterition? Can you say wala because G was
legacies shall be valid insofar as they are not inofficious.
not forgotten? He was mentioned in the will.
If the omitted compulsory heirs should die before the testator, NO. G is preterited. When you say omitted, it is not
the institution shall be effectual, without prejudice to the right enough that your name is mentioned in the will.
of representation. (814a) Meaning you should not have received anything at all
in the will. Either any donation during the lifetime or
Very important provision, a favorite bar question. by legacy in the will or by devise or inheritance. Wala
jud ka ndawat.
Concept of preterition – omission of one, some, or all of the
 Nothing is left that can be distributed by intestacy.
compulsory heirs in the direct line, whether living at the time
Meaning, the will disposed of all the properties.
of the execution of the will or born after the death of the
testator.
Example ang will dispose of only ½ of the estate and
G was not mentioned there, wala sya natagaan ug
So there is an omission of compulsory heir in the direct line anything but naa pa man half na wala pa nadispose
whether he was born after the death of the testator. As long so the distribution can be by legal succession and no
as he was already conceived at the time of death of the preterition.
testator.
How about, half nalang man ang wala pa nadispose
What is the effect? sa estate?
The institution of heirs shall be annulled, but the devises and Obviously kulang na jud to sya para sa legitime ni G.
legacies shall be valid insofar as they are not inofficious. kulangan nato sya kay 1/2 lang gud. Then there is
still no preterition.
Elements of preterition: How about the legitime of G na kulang na man jud?
 Omission: intentional or unintentional. Then we have what we call completion of legitime.

Is intentional omission or inadvertent omission? I-complete lang ang legitime ni G.
Halimbawa nakalimot lang si testator na naa pa syay
isa ka anak. Or kabalo sya na naa p syay isa ka anak Ex. G is entitled to supposedly 1M and then the other
pero gituyo jud niya nga dili hatagan sa iyang will. half lang kay 300,000, so dungagan lang sya ug
700,000 but definitely, there is no preterition.
Before this was an issue, according to some, if it is
intentional, it is not preterition, it should be construed There is a different effect when you say preterition
as disinheritance and the law on disinheritance will and you say completion of legitmes lang.
apply. But if it is unintentional, then that is
preterition and 854 will apply. Again, if the decedent did not dispose of the entire
estate in his will, there is no preterition if an heir in
Settled: it can either be intentional or unintentional. It the direct line is omitted in the will because he can
does not matter as long as the heir was omitted. still receive by intestacy.
Assuming, wala jud naghatag ug any legacy, devise, If he had an intrauterine life of less than 7mos and he
etc. wala na pud nabilin by legal succession, so you died within 24 hours, he shall not be considered
can say na nay preterition. But during the lifetime of preterited because he did not attain civil personality.
the testator, the omitted heir had already received a
donation. In that case, no preterition. But if he had an intrauterine life of more than 7mos
as long as he was born alive, he shall have acquired
Why? The donation is considered as advance to the civil personality. If there is a will and he was not
legitime of the omitted heir. mentioned, there is preterition and the institution of
heirs is annulled.
What if ang gidonate sa iyaha is way below sa iyang
legitime? Lugi sya.
Then the heir is only entitled to a completion of Article 40. Birth determines personality; but the
legitime. conceived child shall be considered born for all
purposes that are favorable to it, provided it be born
Note ha, dili lang donation, any disposition nga pwede later with the conditions specified in the following
i-collate sa iyang legitime later on. (will discuss on article. (29a)
this later) but any gratuitous grant to the heir, which
can be considered as an advance to the legitime.
Remember also freak succession, there was already Article 41. For civil purposes, the foetus is
delivery of presumptive legitimes and the heir was considered born if it is alive at the time it is
preterited late on, we cannot say that the heir was completely delivered from the mother's womb.
preterited because there was prior delivery of However, if the foetus had an intra-uterine life of less
presumptive legitimes. He is just entitled to than seven months, it is not deemed born if it dies
completion of legitime. within twenty-four hours after its complete delivery
from the maternal womb. (30a)
 The person is not an heir, devisee or legatee
and receives nothing by will.
For example, nagpakasal ka tapos wala pa kay mga
 Only the compulsory heirs can be preterited. anak. Wala pa gud ka kabalo kinsa imung mga anak
Who are compulsory heir? pero nagbuhat2x naka ug will and nabuntis imung
(1) Legitimate children and descendants asawa tapos namatay kag kalit. So wala jud to nimo
(2) Legitimate parents and ascendants namention imung baby nga naa pa sa tiyan. So there
(3) Surviving spouse can still be preterition in that case because that baby
(4) Illegitimate children is not mentioned in the will.
Bu the law says, in the direct line, who among the
mentioned belong to the direct line? Or nagbuhat ka ug will karon tapos nagdate mo sa
imung asawa, then pagkaugma namatay dayon kag
In the case of ACAIN v ACAIN, the issue here is kalit. So naa nakay will na nabuhat daan pero wala
whether a spouse can be preterited? nimo naapil tong imuhang anak. Dili jud to nimo
maapil, wala gani ka kabalo na nabuntis diay in the
No, although she is a compulsory heir, she is not in first place. So there is still preterition, technically. It
the direct line. When you say direct line, one who will annul the institution of heirs.
descends from the testator or one from whom the
testator ascends. So ascending line or descending Consequences of Preterition:
line.
It shall annul the institution of heirs but devises and legacies
Again the law says, whether living at the time at the
shall be valid insofar as they are not inofficious.
execution of the will, or born after the death of the
testator. Minimum requirement here is that at least at
the time of death of the testator, conceived na ang Example
preterited heir. We have to comply with the
conditions under Art 40 and 41 of the NCC. K L M are children of the testator. In his will, he gave all his
properties to K and L. M is preterited. Estate worth 9M.
We were talking of a fetus na naa pa sa womb sa
mother, at the time of death, wala pa sya naanak What is the effect? The institution of heirs will be annulled.
pero gianak sya after. The fetus must be, if he had an There will be intestacy because the will cannot be give effect
intra uterine life of less than 7 mos, he has to live for anymore. The institution mentioned in the will can no longer
at least 24 hours for him to obtain civil personality be given effect.
and thus to be considered as preterited.
How do we distribute the estate? by intestacy. We divide the HEIR LEGITIME FREE
estate equally among all the children, K L and M. PORTION
K 1.5M 2,250,000
What if the testator instituted K and L as his sole heir to entire L 1.5M 2,250,000
estate of 9M and also leaving a legacy to M of 1,000. M 1M 500,000
Is there preterition? Wala because M is not omitted, in fact he What if in the will, I hereby institute K and L as my heirs? Wala
was given 1,000. Wala jud nalimtan ni testator. Tama tama niya gimention si M. is M preterited?
paghuman basa sa will, pangtaxi niya pauli sa ilang balay. (lol)
NO, because he did not mention that the entire 9M estate shall
Consequence of this: be solely for K and L. he just mentioned that he is instituting K
and L as his heirs.
 no annulment of institution of heirs.
 M is entitled to completion of his legitime. Under the Principle in institution: limited to the free portion.
law, legitimate children are entitled to 1/2, so 1/2 of
9M is 4.5M and the other 4.5M is also the free  Because we do not need to institute heirs to their
portion. legitimes, compulsory heirs, they are entitled to
 Sa 4.5M, each shall receive 1.5M (tungaon ug katulo legitimes by law.
kay tulo man ang anak, thus 1.5M each) as legitime.  So when you say institution it should interpreted to
HEIR LEGITIME FREE only apply to the free portion.
PORTION  Here, no preterition. K and L will share the free
K 1.5M 2,250,000 portion, but K L and M shall receive their respective
L 1.5M 2,250,000 legitimes.
M 1,000 1,499,000 M
What if, aside from K L and M, we have F friend of the
testator. In his will, he instituted, K L and F as his sole heirs to
 But M already received 1,000 so just complete his his entire estate of 9M. So M is preterited.
legitime.
 The free portion is only given to K and L because they Effect: institution of heirs shall be annulled.
are the ones instituted. Wala nay labot si M. M is only
entitled to complete his legitime. Unlike kung naay
What will follow is intestacy, we distribute by legal succession.
preterition and the entire institution is annulled, wala
Among whom? K L and M.
na jud free portion. The entire estate shall be
distributed by way of intestacy, equal sharing the si K
L and M. How about F? he is not included because he is not an heir, he
 Here, no preterition so M should be given his legitime is just a friend. He will not receive anything because he is just
pero sa free portion, wala nay labot kay wala man an instituted heir.
siya gi-institute.
What if M was given a donation of 1M during the lifetime of
Example: Estate is 8M, during his life time the testator donated the testator? And his in his will, the testator only instituted K L
to M properties amounting to 1M (covered by a deed of and F as his sole heirs worth 8M.
donation). pero sa iyang will, the testator only instituted K and
L as his sole heirs to his entire estate of 8M.  no preterition, we just complete the legitime of M.
 sa free portion, ang magtunga kay si K L and F.
Is M preterited? No because he already received an advance of
his legitime in the form of the donation inter vivos. So he is still What if M was preterited and F was given a legacy of 2M,
entitled to completion of legitime. estate is worth 9M. The only instituted heirs are K and L to the
entire estate and a legacy of 2M to F. what is the effect?
 Estate at the time of death plus collation of
donations: 8M + 1M= 9M  The institution of heirs will be annulled but the legacy
 9M divided by 2, that is the legitime: 4.5M and devise shall be respected so long as they are not
 Free portion: 4.5M also inofficious.
 Each shall be entitled to 1.5M as legitime.  Not inofficious, meaning they do not impair the
 Because M already received 1M, dugangan nalang sya legitime of the compulsory heirs. In other words, they
ug 500,000 to complete his legitime. can be covered by the free portion.
 As to the free portion, walay labot si M sa distribution,  How do we know if the legacy is inofficious? We
K and L will divide in equal shares. compute.

 9M ang estate, 1/2 of that is 4.5M as legitime, 4.5M This just discusses the distinctions between preterition in Art.
ang free portion. 1104 and preterition under 854. Actually in the civil code, there
 Can the 2M be covered by the free portion? YES. are 3 kinds of preterition:
 But because there is preterition, the institution of
heirs is annulled. 1. Art. 854
 but the legacy is not an institution of heirs. We 2. Art. 1104 – in the partition
distinguished before, heirs from legatees and devises. 3. Preterition in objects of the partition
So walay labot ang legacy sa annulment kay dili man
siya institution of heirs. That’s why it will stand as
They have different consequences. Here, there was an
long as dili inofficious.
extrajudicial partition executed by the heirs. But one
HEI LEGITIM FREE TOTAL
compulsory heir was not included in the partition. He claimed
R E PORTION
that there is pretertion. But the SC said that preterition has
K 1.5M 833,333. 2,333,333.
been defined as the total omission of a compulsory heir from
33 33
the inheritance. In consists in the silence of the testator with
L 1.5M 833,333. 2,333,333.
regard to the compulsory heir omitting him either by not
33 33
mentioning him at all or by not giving him anything in the
M Preterite 1.5M 833,333. 2,333,333. hereditary property but without expressly disinheriting him
d 33 33 even if he is mentioned in the will, in the latter case.
F 2M Preterition is thus a concept of testamentary succession and
legacy requires a will. But here, precisely the parties entered into an
extrajudicial partition because there was no will, it was a case
of intestacy. You cannot claim of preterition under 854 if there
FP: 4.5M – 2M = 2.5M (excess) is intestacy, what should apply is preterition under Art 1104
 the 2.5 will be given not only to K and L, wherein you can only annul an extrajudicial partition or
because take note that annulled ang partition in case of preterition, in case of bad faith or fraud.
institution of heirs. So intestacy will take But without bad faith or fraud, the preterited heir shall be
effect. given his share. Magcontribute tong uban didto para mahatag
 2.5M shall be divided by 3. iyang share, kung walay bad faith or fraud. This is again a
different kind of preterition which happens in intestacy.
If the omitted compulsory heirs should die before the testator,
the institution shall be effectual, without prejudice to the right Article 855. The share of a child or descendant omitted in a
of representation. will must first be taken from the part of the estate not
disposed of by the will, if any; if that is not sufficient, so much
We also discussed this in revival of wills. as may be necessary must be taken proportionally from the
shares of the other compulsory heirs. (1080a)
Assuming, M was preterited in the will but M died ahead of the
testator and he did not have children of his own. So M Here again, there is an omission, but the omission here is not
definitely did not become an heir. to become an heir, you necessarily preterition. There’s just an heir omitted. The
must succeed the testator, you should not predecease the compulsory heir is entitled of course to his legitime, kung na-
testator. omit sya sa will, its either preterited sya or omitted sya sa will
but he already received something from the testator, during
the latters lifetime or the estate has not been entirely disposed
So even if M was omitted in the will, but because he died
of, so he is just entitled to the completion of his legitime.
ahead of the testator, kung unsa man tong preterition na naa
sa will, wala na sya because of he predeceased.
Where do we get the share na ipang puno sa share sa omitted
compulsory heir?
But even if M died ahead of the testator, but M also naay anak
who can represent him. Then there will be preterition. The
institution of heirs shall still be annulled. Of course, didto sa ta mangita sa mga portions na walay sabit,
those which are not disposed of by will.
We have cases relating to preterition.
For example, ang free portion kay naay mga legacy or devise
pero naa pud portion na wala pa nahatag, syempre ihatag nato
JLT AGRO v BALANSAG, (recit)
una tong wala naapektuhan sa legacy or devise.
HEIRS OF URETA v. URETA,SR. GR NO. 165930

Halimbawa kulang pa jud, then kung naay mga voluntary
SEPTEMBER 14, 2011
heirs, kuhaan ilahang shares.

Kung kulang lang gihapon, tapos naa pa devisees and GR: A compulsory heir who dies before the testator,
legatees, of course wala na tay makuha kay gihurot na nato a person incapacitated to succeed, and one who
noh! Didto lang ta kutob. We will not reduce the legitimes of renounces the inheritance, shall transmit no right to
the other compulsory heirs. Didto lang jud ta manguha sa free his own heirs
portion. Kung wala na free portion, meaning all the legitimes
had been satisfied. Mao na na sya ang procedure in completing XP: except in cases expressly provided for in this
the share of completing the legitime of the compulsory heir. Code.
 This applies to the right of representation.
This is the procedure:  So even if an heir dies ahead of the testator
or even if he becomes incapacitated to
succeed, he can still be represented. His
1. Take from the portions of the estate not disposed of.
rights are transferred to his own heirs.
Meaning not covered by any legacy or devise.
 In effect, the rights of K will be transmitted to A and B.
2. Reduce sa mga pwede pa ireduce
The 1.5M of K will go to A and B. Tungaan na nila.
3. In any case, dili jud pwede bawasan ang share sa
 For example, they all predecease the testator. All will go
other compulsory heirs.
to their heirs.
 If K L and M become incapacitated, the same thing.
They can still be represented.
 But if K repudiated his inheritance, he doesn’t need the
x x x so much as may be necessary must be taken money. What will happen now? Diha na nato magamit ang
proportionally from the shares of the other compulsory heirs. general rule under Art 856, dili sya makatransmit ug
anything sa iyang own heirs.
 An heir who repudiates cannot be represented.
It means katong shares na over and above their legitimes, not
their legitimes.  So ang 1.5M ni K, dili na makuha ni A and B. It will go to L
and M. Bale, 2 nalang ka heirs ang nabilin na heirs.
 But is they all repudiated, we said they cannot be
Article 856. A voluntary heir who dies before the testator represented. They cannot transmit anything. So asa
transmits nothing to his heirs. maadto ang 4.5M?
 They will go to A B I X Y and Z. They will get the
A compulsory heir who dies before the testator, a person inheritance not by representation but by their own
incapacitated to succeed, and one who renounces the right. When we say in their own right, dili na nato sundon
inheritance, shall transmit no right to his own heirs except in tong sharing. In case of repudiation, it is as if nawala sila
cases expressly provided for in this Code. (766a) sa listahan sa mga heirs. Then we go to the next line of
heirs under the rule on proximity. Sila na dayon ang
Take note of the first principle: a voluntary heir cannot be mga heirs, in their own rights. They shall divide that
represented. He transmits nothing to his heirs. equally amongst themselves.
For example, the testator instituted his friend F as heir. His -end-
friend has a child, E. He gave 1/2 of his estate to his friend F
but F died ahead of the testator.
So unsay mahitabo karon? What will happen upon the eventual September 6, 2014 ran
death of the testator? Makakuha ba ang heir ni F na si E? NO.
A voluntary heir transmits nothing to his own heirs. So wala (MAKE UP CLASS)
jud. Diha lang kutob sa iyaha.
SUBSTITUION OF HEIRS
For example, the testator had children, K L and M.
Article 857. Substitution is the appointment of another heir
K (+) 1.5M L 1.5M M 1.5M so that he may enter into the inheritance in default of the heir
A B I X Y Z originally instituted. (n)
The concept of substitution as mentioned in ART 857

is that there is an original heir instituted and then for any
 As compulsory heirs, they are entitled to their reason the original heir instituted cannot enter into the
legitimes. inheritance that is why another has to take his place. It says
 For example, K died ahead of the testator. “in default of the heir originally instituted” but actually this
 Upon the testator’s death, katong portion na muadto definition under ART 857 is only one kind of substitution.
kay K, asa man to muadto? Direct substitution is the one contemplated under ART 857.
(1) Simple or common;
2 KINDS OF SUBSTITUTION (2) Brief or compendious;
1. DIRECT SUBSTITUTION – ART 857: there is an heir (3) Reciprocal; or

originally instituted and in default of that heir another one
takes his place. Only will enjoy the property. (4) Fideicommissary. (n)
2. INDIRECT SUBSTITUTION – there is a first heir

instituted and then after the first heir, there is another heir, The CLASSIFICATIONS of Direct Substitution:
who will also enjoy the property. It is contemplated that both
heirs would enjoy the property but not at the same time. One Article 859. The testator may designate one or more persons
after the other. It should also be included in the definition of to substitute the heir or heirs instituted in case such heir or
substitution. heirs should die before him, or should not wish, or should be
incapacitated to accept the inheritance.
SUBSTITUTION – the appointment of another heir so that he
may enter into the inheritance in default of the heir originally A simple substitution, without a statement of the cases to
instituted or after such heir either one after the other or all at which it refers, shall comprise the three mentioned in the
the same time. preceding paragraph, unless the testator has otherwise
provided. (774)
There are several kinds of DIRECT SUBSTITUTION as
to INDIRECT SUBSTITUTION, we only have one and that is SIMPLE or COMMON – if the original heir cannot inherit or
under the FIDECOMMISARY SUBSTITUTION. defaults in case of predecease, incapacity or repudiation, the
testator may designate a substitute. For example, the cause of
Substitution is allowed because as much as possible the default is silent and there is an appointed substitute but
the will of the decedent or the testator should be given effect. the testator did not mention the cause of the default, the 2nd
Intestacy is the last resort. In the order of preference, we have par says it shall comprise the 3 mentioned (either predecease,
Institution – if there is an instituted heir then we give the incapacity or repudiation) unless the testator has otherwise
inheritance to the instituted heir. Then, next is Substitution – provided.
for example the instituted heir cannot enter into the
inheritance then we give the inheritance to the substitute. If Article 860. Two or more persons may be substituted for
there is no substitute appointed then, we have one; and one person for two or more heirs. (778)
Representation. If it is proper then, if the heir instituted
cannot enter into the inheritance and if he has a
BRIEF – when there are 2 or more persons who are the
representative, give to the representative. If representation is
substitutes of one. So one heir lang ang instituted but duha
not proper then we have Accretion, if all the elements of
ang iyang substitute.
accretion are present so if the heir instituted cannot enter into
the inheritance if he has a co-heir to the same inheritance, his
share will accrue to the co-heir. If accretion is also not COMPENDIUOUS – when there are 2 or more heirs instituted
possible, then that would be the time there is Intestacy. but there is only one substitute. The person will become the
substitute of the 2 or more instituted heirs so all the instituted
heir must either predeceased, incapacitated or repudiated
Order of Preference (ISRAI)
before there will be substitution. If only one, we cannot yet
apply the substitution. Effect: The share of the heir who
I – Institution predeceased, incapacitated or repudiated will go to the co-heir
in the succession.
S – Substitution
(For illustrations, refer to the Sigma transcript)
R – Representation
Article 861. If heirs instituted in unequal shares should be
A – Accretion reciprocally substituted, the substitute shall acquire the share
of the heir who dies, renounces, or is incapacitated, unless it
I – Intestacy clearly appears that the intention of the testator was
otherwise. If there are more than one substitute, they shall
have the same share in the substitution as in the institution.
Article 858. Substitution of heirs may be: (779a)

RECIPROCAL SUBSTITUTION – each heir is to be the si B. Pero kung B is already a lawyer and A is a law student
substitute of the other. For example, we have two heirs, A and and the institution of A is subject to the condition that A will
B are instituted heirs, in case of default of A – B will be the first pass the bar, in his default B is the substitute. Now if A
substitute; in case of default of B – A will be the substitute. So died ahead of the testator, B will now substitute A. But should
walay problema ana na situation. B be subject to the condition to pass the bar first? NO because
he already pass the bar in the first place. So that condition is
But what if the situation is unequal? A has been instituted to no longer applicable to him.
¼ and B has been instituted to ¾. B dies ahead of the
testator. The estate is 12 million. GR: If the institution is subject to a charge or a
condition and there is a substitute, the substitute is
A ¼ 3,000,000 also subject to the same charge or condition except if:
B ¾ 9,000,000 1. If the testator expressly provided otherwise;

and
2. If the charge or conditions are applicable only
What if B predeceased the testator? So maadto kay A ang
to the heir instituted.
share B. A does not get the ¼ of B’s share but he gets the
entire share of B kasi substitute siya ni B insofar as that share
of B is concerned, a reciprocal substitute. Article 863. A fideicommissary substitution by virtue of which
the fiduciary or first heir instituted is entrusted with the
obligation to preserve and to transmit to a second heir the
What if there are more than 2 instituted heirs? Estate would
whole or part of the inheritance, shall be valid and shall take
still be 12 million. In default of A, B and C would inherit; in
effect, provided such substitution does not go beyond one
default of B, A and C would inherit; in default of C, A and B
degree from the heir originally instituted, and provided further,
would inherit. What if A defaults? How would B and C divide
that the fiduciary or first heir and the second heir are living at
the vacated share of A? The division in the share in a
the time of the death of the testator. (781a)
substitution would be the same with that of the share in the
institution. APPLY RATIO AND PROPORTION.
The concept of Fideicommissary Substitution – the only indirect
substitution under the New Civil Code. Both heirs will enjoy the
A¼ 3,000,000 (defaults)
inheritance but one after the other.
B¼ 3,000,000 3/9 (3,000,000) =

For example, we have A and B who are instituted by the
1,000,000
testator as his heirs after the death of the testator, he said the
property will go to A but after 10 years from the death of the
C½ 6,000,000 6/9 (3,000,000) = 2,000,000 testator will have to deliver the property unimpaired and
preserved to B.
9,000,000 3,000,000
REQUISITES
Article 862. The substitute shall be subject to the same
charges and conditions imposed upon the instituted heir, 1) The fideicommissary substitution must be expressly
unless and testator has expressly provided the contrary, or the made. – He intents a fideicommissary substitution or
charges or conditions are personally applicable only to the heir even if he did not mention the term fideicommissary
instituted. (780) substitution but he imposed upon the first heir an
obligation to preserve and transmit the property to
So in substitution, if the original heir instituted is subject to a the second heir.
condition, then the substitute shall be subject to the same
condition, even if the testator did not mention na subject siya 2) There must be a FIRST HEIR – fiduciary, fiduciaro,
to the same condition. The law says The substitute shall be heredero or trustee.
subject to the same charges and conditions imposed upon the
instituted heir, so for example A, B and C are students of the The rights and obligations of the first heir are the following:
testator, so mga law students, and then they are substitute to
each other. But for example, A is instituted subject to a
a) The first heir can enjoy the property/ he benefits from
condition that he will pass the bar exam. And the substitute of
the property;
A is B or C. So assuming namatay si A ahead of the testator,
b) He cannot alienate the property/ he cannot disposed
will the substitute be also subject to the same condition? A,B
of the property;
and C are all law students. General Rule: YES, unless the
c) He has the obligation to preserve and transmit the
condition is applicable only to the person or unless
property to the second heir.
expressly provided otherwise by the testator. So in this
case, applicable man siya kay B kay law student man gihapon
3) There must be a SECOND HEIR – fideicommissary or (1) Fideicommissary substitutions which are not made
fideicomisario or beneficiary or cestui que trust in an express manner, either by giving them this
name, or imposing upon the fiduciary the absolute
The second heir is the one who is second to enjoy the property obligation to deliver the property to a second heir;
but there is no obligation imposed upon the second heir
anymore. No obligation to preserve and transmit thus, he can (2) Provisions which contain a perpetual prohibition to
alienate or dispose of the property. alienate, and even a temporary one, beyond the limit
fixed in article 863;
4) The second heir must not be beyond one degree from
the first heir or the heir originally instituted. (3) Those which impose upon the heir the charge of
paying to various persons successively, beyond the
“one degree” – ONE GENERATION (parent – child) limit prescribed in article 863, a certain income or
pension;
There can be no fideicommissary substitution between
corporations and juridical persons because they cannot comply (4) Those which leave to a person the whole or part
with the requirement of one degree. of the hereditary property in order that he may apply
or invest the same according to secret instructions
communicated to him by the testator. (785a)
5) Both of the first heir and the second heir must be
living at the time of the death of the testator or at
least conceived. (Cf: ART 40 and 41 of the FC) (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
Article 864. A fideicommissary substitution can never burden
to deliver the property to a second heir – for a
the legitime. (782a)
fideicommissary substitution to be valid either the
testator expressly constitutes it as a fideicommissary
The legitime has to be preserved and it has to go to the heirs substitution by giving the name fideicommissary
without any burden, condition, substitution or charge because substitution or by giving to the first heir an obligation
if it will be allowed the testator might circumvent the law by to preserve and transmit the property to a second
charging or putting conditions to the legitime. The same thing heir. Although the law does not really impose na ang
here you cannot impose a fideicommissary substitution upon word na gamitin niya is obligation to deliver the
the legitime. property to a second heir, you can also use other
words as long as it connotes the obligation to
Article 865. Every fideicommissary substitution must be preserve and transmit.
expressly made in order that it may be valid.
(2) Provisions which contain a perpetual prohibition to
alienate, and even a temporary one, beyond the limit
The fiduciary shall be obliged to deliver the inheritance to the
fixed in article 863 – in relation Article 870.
second heir, without other deductions than those which arise
from legitimate expenses, credits and improvements, save in
the case where the testator has provided otherwise. (783)
Article 870. The dispositions of the testator declaring all or
part of the estate inalienable for more than twenty years are
What are the expenses which the first heir may deduct from
void. (n)
the property? Only those which arise from legitimate expenses,
credits and improvements because again he is supposed to
preserve and transmit the property to a second heir. If he is Actually the testator can prohibit the disposition of his property
allowed to charge any other expense then you might not be even after his death but the law says it is only up to 20 years.
able to deliver the property at all. Maximum would only be up to 20 years.
Article 866. The second heir shall acquire a right to the Now let’s go back to the number 2 – perpetual prohibition to
succession from the time of the testator's death, even though alienate because the law only allows up to 20 years or even a
he should die before the fiduciary. The right of the second heir temporary prohibition beyond the limit fixed in ART 863.
shall pass to his heirs. (784)
*** This article is not only applicable to a fideicommissary
Even if the second heirs dies ahead of the first heir as long as substitution but in general. So even if in no. 2 where a
he did not predecease the testator, he will preserve his rights. temporary prohibition to alienate not perpetual but goes
beyond the limit provided for in ART 863 it is not valid.
Article 867. The following shall not take effect:
The testator instituted A as his heir to all his properties but he
prohibited A from disposing of the inherited property forever.
Again as we said, it is only valid up to 20 years. If for 15 Article 869. A provision whereby the testator leaves to a
years? Valid? Yes, valid. person the whole or part of the inheritance, and to another the
usufruct, shall be valid. If he gives the usufruct to various
Assuming after 3 years only after getting the property A died, persons, not simultaneously, but successively, the provisions of
he is now survived by his child –B – Is B bound by the same article 863 shall apply. (787a)
prohibition? Yes because he succeeds to the rights and
obligations of A. He cannot dispose of the property for the The testator can give the naked ownership to one person and
remaining 12 years. the usufruct to another. It is valid. It can also be valid that the
usufruct will be given to several persons successively. As long
Now after 3 years, B also died, the property now is inherited as it is not beyond the limit provided for by ART 863. But
by C. Can C dispose of the property? Is C bound to not dispose again, if the usufruct is simultaneously given then it is valid.
of the property for 9 years? NO MORE because even if it is a The one-degree limit ART 863 will not apply. The reason why
temporary prohibition but it is already beyond the limit the law prohibits going beyond one degree is to avoid the
provided for in ART 863. Meaning, more than 1 degree na pag- prolong entailment of the property. Dapat ang property sure
abot kay C dili na siya bound by the prohibition. ang ownership.
What if it is a case of fideicommissary substitution? A will have Article 870. The dispositions of the testator declaring all or
to preserve the property and transmit it to B after 30 years. Is part of the estate inalienable for more than twenty years are
it valid? Yes, it is valid because it is a case of fideicommissary void. (n)
substitution. In fact, the first heir cannot dispose of the
property. Conditional Testamentary Dispositions and
Testamentary Dispositions with a Term
(3) Those which impose upon the heir the charge of
paying to various persons successively, beyond the An institution can also be made subject to a condition, to a
limit prescribed in article 863, a certain income or term or to a mode.
pension
There are 4 kinds of institution:
Same lang gihapon. If X has been given the obligation to pay
to A a certain pension, okay pa na siya. Na kung ikamatay na
A kay B na pud ihatag. Pero ikamatay ni B si C na pud – No, 1) Simple or Pure – not subject to any term, condition or
hindi na siya pwede kasi more than one degree. mode. As soon as the testator dies, the institution is
effective.
It can only when the claim of the pension is successive

2) Conditional – those institution subject to certain
because if it is stated na X will give a pension to A, B and C at
conditions
the same time – not prohibited because it is simultaneous.
3) Institution subject to a Term
(4) Those which leave to a person the whole or part of
the hereditary property in order that he may apply or
4) Modal Institution
invest the same according to secret instructions
communicated to him by the testator. (785a)
Article 871. The institution of an heir may be made

I hereby leave to A this land so that he may apply this
conditionally, or for a certain purpose or cause. (790a)
according to my wishes which I already told him in secret – not
allowed because we have no assurance that the one to whom
the property was left would really apply it according to the Note: if we are talking about a condition, we are talking
instructions. about the free portion. Because you cannot impose any
condition, substitution, etc. on the legitime.
Article 868. The nullity of the fideicommissary substitution
does not prejudice the validity of the institution of the heirs CONDITION (ObliCon) – a future or uncertain event or
first designated; the fideicommissary clause shall simply be a past event unknown to the parties upon which the
considered as not written. (786) demandability or extinguishment of an obligation depends.
What happens if all the requisites for the fideicommissary CONDITION (Succession) – it is an uncertain or future
substitution are not present? Then, the fideicommissary clause event upon or a past event unknown to the parties upon
becomes null and void but in all cases it will not prejudice the which the demandability or resolution of a testamentary
rights of the first heir. So it will just be considered a simple disposition depends.
institution.
When we say condition we have the element of futurity and institution or the inheritance must be subordinate to that
uncertainty. Futurity because it will happen in the future even condition. Without that clear intention to subordinate the
if we speak of a past event which is something of the past but institution or the inheritance to the fulfillment of that condition,
actually we are referring to a future knowledge of a past it would not be considered as a condition. That statement can
event. Uncertainty because it may or may not happen. either just be an advice or a description which even if not
fulfilled or done, would not impair the right of an heir to the
What are the different kinds of condition? inheritance.
As to cause: MORENTE v. DE LA SANTA
1) Potestative Condition – the fulfillment depends The will of Consuelo Morente contains the following
exclusively upon the will of the heir, devisee or clauses:lawphil.net
legatee;
1. I hereby order that all real estate which may
2) Casual Condition – it depends upon chance or the will belong to me shall pass to my husband, Gumersindo
of 3rd persons; de la Santa.
3) Mixed Condition – it is a condition that depends partly 2. That my said husband shall not leave my brothers
upon the will of the heir, devisee or legatee and partly after my death, and that he shall not marry anyone;
upon chance or the will of the 3rd person should my said husband have children by anyone, he
shall not convey any portion of the property left by
As to effect: me, except the one-third part thereof and the two
remaining thirds shall be and remain for my brother
1) Suspensive Condition – the happening of which gives Vicente or his children should he have any.
rise to the inheritance or institution;
3. After my death I direct my husband to dwell in
2) Resolutory Condition – the happening extinguishes the camarin in which the bakery is located, which is
the right to a inheritance or extinguishes the one of the properties belonging to me.
institution
Article 790 of the Civil Code provides that testamentary
As to possibility of fulfillment: provisions may be made conditional and article 793 provides
that a prohibition against another marriage may in certain
1) Possible Condition cases be validly imposed upon the widow or widower. But the
2) Impossible Condition question in this case is, Did the testatrix intend to impose a
condition upon the absolute gift which is contained in the first
clauses of the will? It is to be observed that by the second
As to mode:
clause she directs that her husband shall not leave her sisters.
It is provided in the third clause that he must continue to live
1) Negative in a certain building. It is provided in the second clause that he
2) Positive shall not marry again. To no one of these orders is
attached the condition that if he fails to comply with
As to form: them he shall lose the legacy given to him by the first
clause of the will. It is nowhere expressly said that if
1) Express he does leave the testatrix's sisters, or does not
2) Implied continue to dwell in the building mentioned in the will
he shall forfeit the property given him in the first
clause; nor is it anywhere expressly said that if he
Article 872. The testator cannot impose any charge, marries again he shall incur such a loss. But it is
condition, or substitution whatsoever upon the legitimes expressly provided that if one event does happen the
prescribed in this Code. Should he do so, the same shall be disposition of the property contained in the first clause of the
considered as not imposed. (813a) will shall be changed. It is said that if he has children by
anyone, two-thirds of that property shall pass to Vicente, the
The testator cannot impose any charge, condition or brother of the testatrix.
substitution upon the legitime so as to prevent the testator
from circumventing the law on legitimes. In other words, there being no express condition attached to
that legacy in reference to the second marriage, we cannot say
Take note: For the statement to be considered as a condition, that any condition can be implied from the context of the will.
meaning, it must be very clear that the effectivity of the The legacy contained in the will therein mentioned was not
conditional. In order to make a testamentary provision Impossible conditions and those contrary to law or
conditional, such condition must fairly appear from the good morals shall be considered as not imposed and
language used in the will. shall not prejudice the heir or legatee in any manner
whatsoever, even should the testator otherwise
Article 873. Impossible conditions and those contrary to law provide.
or good customs shall be considered as not imposed and shall
in no manner prejudice the heir, even if the testator should And said condition is contrary to law because it expressly
otherwise provide. (792a) ignores the testator's national law when, according to article
10 of the civil Code above quoted, such national law of the
IMPOSSIBLE CONDITION – it may be a physical impossibility testator is the one to govern his testamentary dispositions.
or a legal impossibility
Said condition then, in the light of the legal provisions above
What is the treatment of that impossible condition? The law cited, is considered unwritten, and the institution of legatees in
says it shall be considered as not imposed and shall in no said will is unconditional and consequently valid and effective
manner prejudice the heir. even as to the herein oppositor.
Compare that to an Impossible Obligation under ART 1183: Article 874. An absolute condition not to contract a first or
subsequent marriage shall be considered as not written unless
such condition has been imposed on the widow or widower by
Article 1183. Impossible conditions, those contrary to good the deceased spouse, or by the latter's ascendants or
customs or public policy and those prohibited by law shall descendants.
annul the obligation which depends upon them. If the
obligation is divisible, that part thereof which is not affected by
the impossible or unlawful condition shall be valid. Nevertheless, the right of usufruct, or an allowance or some
personal prestation may be devised or bequeathed to any
person for the time during which he or she should remain
The condition not to do an impossible thing shall be considered unmarried or in widowhood. (793a)
as not having been agreed upon. (1116a)
Condition not to marry – is it valid? An absolute condition not

In ART 1183, both the condition and the obligation are void. In to contract a first marriage or not to contract a subsequent
ObliCon, the condition is part of the essential requisite for the marriage, the law says it shall be considered as not written.
birth of the obligation. It is considered part of the That’s the GENERAL RULE.
consideration.
Why not allowed to impose such condition? Because it will
In Succession, we cannot say that the consideration is the instead lead to immoral consequences. The law encourages to
condition or the condition goes into the very consideration legalize the relationship. Live in, live in.
because the underlying consideration is really the generosity or
liberality of the testator.
Exception: If the condition has been imposed to the widow or
widower by the deceased spouse or by the ascendant or
MICIANO v. BRIMO descendant of the deceased spouse. Allowed by law for
sentimental reasons 
The institution of legatees in this will is conditional, and the
condition is that the instituted legatees must respect the Nevertheless, the right of usufruct, or an allowance or some
testator's will to distribute his property, not in accordance with personal prestation may be devised or bequeathed to any
the laws of his nationality, but in accordance with the laws of person for the time during which he or she should remain
the Philippines. unmarried or in widowhood.
If this condition as it is expressed were legal and valid, any This is different from the first paragraph because here nahatag
legatee who fails to comply with it, as the herein oppositor na daan and usufruct or allowance, effective na siya pero
who, by his attitude in these proceedings has not respected maforfeit lang niya kung magminyo ka.
the will of the testator, as expressed, is prevented from
receiving his legacy.
Article 875. Any disposition made upon the condition that the
heir shall make some provision in his will in favor of the
The fact is, however, that the said condition is void, being testator or of any other person shall be void. (794a)
contrary to law, for article 792 of the civil Code provides the
following:
DISPOSITION CAPTATORIA – I will give you if you will give
me.

Article 876. Any purely potestative condition imposed upon Article 878. A disposition with a suspensive term does not
an heir must be fulfilled by him as soon as he learns of the prevent the instituted heir from acquiring his rights and
testator's death. transmitting them to his heirs even before the arrival of the
term. (799a)
This rule shall not apply when the condition, already complied
with, cannot be fulfilled again. (795a) ART 878 discusses an institution subject to a term. What is a
term?
PURELY POTESTATIVE CONDITION – dependent upon the
sole will of the heir. TERM – it is a future and certain event which will necessarily
come although may not be known when; it will happen
When should the heir fulfill that potestative condition? The law
says as soon as he learns of the testator’s death. He cannot Suspensive term – meaning, the institution of the disposition
fulfill that during the lifetime of the testator as a GENERAL would be effective only upon the arrival of the term.
RULE.
The law says it does not prevent the instituted heir from
Exception: If he already complied with it during the lifetime of acquiring his rights and transmitting them to his heirs even
the testator but it is in such a nature that it cannot be before the arrival of the term.
complied with again, then, there is no more obligation on the
part of the heir to comply with it again. I hereby institute A as heir to ½ of my estate and A will get
the property 2 years after the death of the testator. 2 years
What is the manner of compliance when it comes to that’s the term. What if A died one year after the death of the
potestative condition? Is it strict or substantial? Authority says testator, will it forfeit the inheritance? No because the law is
that it is made dependent upon the sole will of the heir, we very clear – it does not prevent the instituted heir from
presumed that the testator had confidence in the heir acquiring his rights and transmitting them to his heirs even
instituted so it is enough that he complied with the condition before the arrival of the term. Upon the arrival of the term, the
substantially. heirs of A will now be entitled to the inheritance.
Article 877. If the condition is casual or mixed, it shall be Article 879. If the potestative condition imposed upon the
sufficient if it happen or be fulfilled at any time before or after heir is negative, or consists in not doing or not giving
the death of the testator, unless he has provided otherwise. something, he shall comply by giving a security that he will not
do or give that which has been prohibited by the testator, and
Should it have existed or should it have been fulfilled at the that in case of contravention he will return whatever he may
time the will was executed and the testator was unaware have received, together with its fruits and interests. (800a)
thereof, it shall be deemed as complied with.
NEGATIVE POTESTATIVE CONDITION – one which
If he had knowledge thereof, the condition shall be considered consists in not doing or not giving anything
fulfilled only when it is of such a nature that it can no longer
exist or be complied with again. (796) A is instituted as heir to ½ of the estate on the condition that
A will not court B, how can we be assured that A will not court
CASUAL or MIXED CONDITION – Not dependent on the B? It is to be effective immediately. The instituted heir has to
sole will of the heir. comply with the bond requirement. CAUCION MUCIANA –
the security given by the instituted heir who is subject to a
potestative condition which is negative or who is subject to the
When shall it be complied with? The law says it may be
condition which consist in not doing or not giving something.
complied with before or after the death of the testator because
it is difficult to fulfill this kind of condition.
Article 880. If the heir be instituted under a suspensive
condition or term, the estate shall be placed under
What if the condition was already complied with but when the
administration until the condition is fulfilled, or until it becomes
testator made the will he still imposed that condition? It means
certain that it cannot be fulfilled, or until the arrival of the
that the heir has to comply with it again but if it is of such
term.
nature that it cannot be complied with again then, the heir can
not comply it again.
The same shall be done if the heir does not give the security
required in the preceding article. (801a)
As to the manner of compliance, is it strict or substantial?
Authority says strict because by imposing a condition that is
casual or mixed, the testator has no confidence with the Until the condition is fulfilled or until the arrival of the term or
instituted heir to fulfill by his own will. until the giving of the bond, the heir cannot yet enter into the
inheritance.
Who will manage the property? Placed under administration. security. the delivery to him of the
inheritance.
Article 881. The appointment of the administrator of the Does not suspend the efficacy It suspends the efficacy
estate mentioned in the preceding article, as well as the of the right to the succession
manner of the administration and the rights and obligations of The obligation to comply is Conditions are never
the administrator shall be governed by the Rules of Court. mandatory, except when for obligatory because it is
(804a) the benefit of the person beyond the control of the
concerned (there is an heir.
obligation on the part of the
You will discuss this in your Special Proceedings under Rule
heir to comply, otherwise he One element of the
78-79 of the Rules of Court.
forfeits the inheritance or the condition: it may or may not
property is no longer there, happen; not dependent upon
the bond will answer for the the heir
property)
September 11, 2014 The right is given immediately The demandability or
and is demandable. extinction of a right depends
Ro.Jo. upon the fulfillment of the
condition.
Article 882. The statement of the object of the institution, or

the application of the property left by the testator, or the If the statement is vague, whether it is a condition or a mode,
charge imposed by him, shall not be considered as a condition In case of doubt, it shall be resolved in favor of a mode
unless it appears that such was his intention. because it actually more in keeping with the wishes of the
testator, liberality of the testator. Because in a mode, the
institution is immediately effective upon compliance of the
bond. But in conditional institutions, even if you are willing to
give a bond, you cannot demand because you have to wait for
That which has been left in this manner may be claimed at the fulfillment of the condition.
once provided that the instituted heir or his heirs give security
for compliance with the wishes of the testator and for the There is one kind of condition wherein it is also effective
return of anything he or they may receive, together with its immediately by the heir has to give security. That is NEGATIVE
fruits and interests, if he or they should disregard this POTESTATIVE CONDITION – condition not to do or not to
obligation. (797a) give, but the heir has to give a bond (CAUSION MUCIANA).
If the institution mentions about object of the institution e.g. “I If there is doubt whether the statement is a mode or a
hereby institute A as my heir and give her one half of my suggestion/advice, it shall be resolved in favor of suggestion or
estate so that she shall have something to pay for her advice because it is more in keeping with the liberality of the
wedding.” Or there is a statement of the application of the testator – even if you do not follow the suggestion, you will
property e.g. “the testator instituted A so that she may use the not for forfeit the inheritance and you are not obliged to give a
inheritance for the financial assistance for the victims of bond or security.
typhoon Yolanda.” Or charge imposed by him e.g. “the testator
institutes X as heir to one half of his estate but he has to
obligation to give an allowance per year to Y out of the Rabadilla v CA
inheritance.
Whether or not the institution was a simple
If this is the kind of institution, that shall be considered as a substitution or modal institution. NO, in simple
MODAL INSITUTION. That will not be considered as a substitutions, the second heir takes the inheritance in default
condition. of the first heir by reason of incapacity, predecease or
renunciation.14 In the case under consideration, the provisions
of subject Codicil do not provide that should Dr. Jorge
Distinctions between Modal institution and Conditional Rabadilla default due to predecease, incapacity or
institution renunciation, the testatrix's near descendants would substitute
him. What the Codicil provides is that, should Dr. Jorge
Modal Institution Conditional Institution Rabadilla or his heirs not fulfill the conditions imposed in the
Effective immediately; the heir If it is suspensive, even after Codicil, the property referred to shall be seized and turned
already has a right to the the death of the testator, the over to the testatrix's near descendants.
inheritance. However, there is heir cannot yet enter to the
an object mentioned, inheritance; not yet effective, Whether or not there was a fideicommisary
application or charge. Thus, in he has to wait for the substitution
order ensure compliance, fulfillment of the obligation
there is a requirement of a before he can demand for
None. In a fideicommissary substitution, the first heir is strictly The second paragraph refers to the CONSTRUCTIVE
mandated to preserve the property and to transmit the FULFILLMENT. If the heir cannot comply without his fault,
same later to the second heir.15 In the case under because another person interested prevented the fulfillment,
consideration, the instituted heir is in fact allowed under the then the heir can still get the inheritance because he is
Codicil to alienate the property provided the negotiation is with deemed to comply with the condition.
the near descendants or the sister of the testatrix. Thus, a very
important element of a fideicommissary substitution is lacking; For example, A was instituted as heir. The testator died leaving
the obligation clearly imposing upon the first heir the only his brother and sisters. Under the law on succession,
preservation of the property and its transmission to the second brothers and sisters are legal heirs but they are not
heir. "Without this obligation to preserve clearly imposed by compulsory heirs, so the testator can actually leave a will and
the testator in his will, there is no fideicommissary deprive all his brothers and sisters of their inheritance.
substitution."16 Also, the near descendants' right to inherit Example, the institution of A was conditional but because of
from the testatrix is not definite. The property will only pass to the brothers and sisters they prevented the fulfillment of the
them should Dr. Jorge Rabadilla or his heirs not fulfill the condition, the condition is deemed complied with.
obligation to deliver part of the usufruct to private respondent.
Article 884. Conditions imposed by the testator upon the
Another important element of a fideicommissary substitution is heirs shall be governed by the rules established for conditional
also missing here. Under Article 863, the second heir or the obligations in all matters not provided for by this Section.
fideicommissary to whom the property is transmitted must not (791a)
be beyond one degree from the first heir or the fiduciary. A
fideicommissary substitution is therefore, void if the first heir is
not related by first degree to the second heir.17 In the case Although the new civil code provided us with provisions on
under scrutiny, the near descendants are not at all related to conditions, you can also comply under the provisions in
the instituted heir, Dr. Jorge Rabadilla. Obligations and Contracts as to the conditions, except when
they are in conflict with the provisions of the Law on
Succession e.g. effect of impossible condition in an institution,
In a direct substitution, it is alternative – the original heir or the impossible condition shall be considered as not written; but
the substitute. In an indirect substitution, the right of the in Obligations and Contracts, if it subject to an impossible
substitute is certain, but it he will inherit after the first heir. condition, the conditional obligation shall be void.
Whether or not it is a conditional institution

Article 885. The designation of the day or time when the
effects of the institution of an heir shall commence or cease
No, it is actually modal. shall be valid.
Where would Dr. Rabadilla get the sugar to be delivered? From In both cases, the legal heir shall be considered as called to
the subject lot, so how can he comply with the said obligation the succession until the arrival of the period or its expiration.
if in the first place he is not given the possession or ownership But in the first case he shall not enter into possession of the
of such land from where he is supposed to get the sugar to be property until after having given sufficient security, with the
delivered. Thus, it is effectively immediately, he would get the intervention of the instituted heir. (805)
inheritance not conditional, but modal only that, he should give
security.
Speaks of an institution which is subject to a period. It may be
a: Suspensive period – even if upon the death of the
Article 883. When without the fault of the heir, an institution testator, the institution is already effective but he has to wait
referred to in the preceding article cannot take effect in the the arrival of the period or term before he can inherit the
exact manner stated by the testator, it shall be complied with inheritance. Although even if the period or term has not yet
in a manner most analogous to and in conformity with his arrived, and the heir died, this will not prevent him from
wishes. transferring his rights to his own heirs.
If the person interested in the condition should prevent its Resolutory period – immediately the institution is effective,
fulfillment, without the fault of the heir, the condition shall be although upon arrival of that period or term, the effects of the
deemed to have been complied with. (798a) institution shall cease.
The first paragraph talks about SUBSTANTIAL We are talking here of an institution. If A is instituted as heir to
COMPLIANCE. As long as it is without fault of the heir and he the entire estate.
tries to comply but not in the exact manner specified by the
testator, it shall complied in a manner analogous and in If it is a suspensive term, A has to wait for the arrival of the
conformity with his wishes. term before he can demand to deliver to him the inheritance.
In the meantime that the term has not yet arrived, the legal

heirs shall hold and enjoy the property. The latter has to give IT IS A MORTAL SIN IF YOU DO NOT KNOW WHO THE
sufficient security while in possession of the property. COMPULSORY HEIRS ARE.
If it is a resolutory term, upon the expiration of the term, the Because of the Family Code, we only have four classes of
legal heirs shall hold and enjoy the property. There is no need compulsory heirs. Legitimate children and descendants, with
for the legal heirs to provide security because when the term respect to their legitimate parents and ascendants;Legitimate
arrives, the institution ceased to exist. parents are called the SECONDARY HEIRS because they inherit
only in default of legitimate children and descendants.
SECTION 5 - Legitime
Illustration:
Intro: You should know what legitime is; who are entitled to
legitime and what are the specific legitimes of the compulsory MN O P
heirs. As to the specific legitimes, you should MEMORIZE their
specific legitimes. \/ \/
Article 886. Legitime is that part of the testator's property X Y

which he cannot dispose of because the law has reserved it
for certain heirs who are, therefore, called compulsory heirs.
\ /
(806)
\/
Legitime, defined. The legitime and that portion which a
testator can dispose of (FREE PORTION). Although there are
certain legitimes that are taken from the free portion and after Testator
such deductions we now have the FREE DISPOSAL (real free
portion). l
Legitimes are provided by law, hence you cannot diminish it or A

deprive the compulsory heirs of their legitimes unless you have
a valid ground to deprive them (Disinheritance). l
Article 887. The following are compulsory heirs: B
(1) Legitimate children and descendants, with respect to their l

legitimate parents and ascendants;
C
(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children and
descendants; If the testator has children, the children are excluded
automatically. Now the law says legitimate children and
ascendants e.g. testator is survived by A, B, and C. so the law
(3) The widow or widower; says legitimate children AND descendants. Do we mean that all
of them are his heirs? No. in succession, we follow the RULE
(4) Acknowledged natural children, and natural children by on PROXIMITY. The nearer relatives exclude those who are
legal fiction; far. If A, B and C is alive, A being nearer to the testator
excludes B and C. if A is dead already, then next would be B
(5) Other illegitimate children referred to in article 287. which likewise excludes the ascendants. Presence of C likewise
excludes the ascendants. In the absence of C, ascendants (X
and Y) will now succeed. Presence of X and Y excludes M N O
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not
P.
excluded by those in Nos. 1 and 2; neither do they exclude
one another.
Widow or widower (surviving spouse) concurs with the children
or the parents. He or she is not excluded by any kind of heir.
In all cases of illegitimate children, their filiation must be duly
proved.
E.g. A and B are spouses. During the marriage, they acquired
properties amounting to 10 million. A died. Assuming A is
The father or mother of illegitimate children of the three
survived by his spouse and children. How will you divide the
classes mentioned, shall inherit from them in the manner and
estate? First is to liquidate the properties. 10million / 2 =
to the extent established by this Code. (807a)
5million. Testate of A is 5million. The 5million shall be the (2) Any other means allowed by the Rules of Court and special
basis for the computation of the legitime. laws.
If the 10million is a separate property of A, that belongs to her On the other hand, Article 175 provides:
exclusively. It should no longer be divided.
Article 175. Illegitimate children may establish their illegitimate
An estate does not include the property in the conjugal filiation in the same way and on the same evidence as
property. There must be a liquidation first before the estate legitimate children.
can be computed.
DNA evidence can also be a proof of filiation.
They must be legally married; not merely common law spouse
– they have no successional right to the other common law If you are an illegitimate child, you can only present primary
spouse. evidence during the lifetime of the putative parent.
#4 are now under the category of illegitimate children. Under the law, you cannot present secondary after the death
of the putative parent, even DNA evidence.
Insofar as illegitimate children are concerned, the law says
their filiation must be duly proved. Uyguangco v CA October 26, 1989
Ilano v CA G.R. No 104376 February 23, 1994 The issue before the Court is not the status of the private
respondent, who has been excluded from the family and
SC clarified that the right of the illegitimate children to inherit inheritance of the petitioners. What we are asked to decide is
is not borne out of their filiation or blood relationship but of whether he should be allowed to prove that he is an
the fact that they have been acknowledged by the parent illegitimate child of his claimed father, who is already dead, in
concerned. the absence of the documentary evidence required by the Civil
Code.
However, there must first be recognition of paternity,
voluntarily or court action.This arises from the legal principle To prove such acknowledgment:
that an unrecognized spurious child like a natural child has no
rights from his parents or to their estate because his rights Article 172. The filiation of legitimate children is established by
spring not from the filiation or blood relationship but from his any of the following:
acknowledgment by the parent. In other words, the rights of
an illegitimate child arose not because he was the true or real
(1) The record of birth appearing in the civil register or a final
child of his parents but because under the law, he had been
judgment; or
recognized or acknowledged as such a child.
(2) An admission of legitimate filiation in a public document or

As an illegitimate child, your right to inherit is based on having
a private handwritten instrument and signed by the parent
been acknowledged. To prove such acknowledgment:
concerned.
Article 172. The filiation of legitimate children is established by

In the absence of the foregoing evidence, the legitimate
any of the following:
filiation shall be proved by:
(1) The record of birth appearing in the civil register or a final

(1) The open and continuous possession of the status of a
judgment; or
legitimate child; or
(2) An admission of legitimate filiation in a public document or

(2) Any other means allowed by the Rules of Court and special
a private handwritten instrument and signed by the parent
laws.
concerned.
On the other hand, Article 175 provides:

In the absence of the foregoing evidence, the legitimate
filiation shall be proved by:
Article 175. Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence as
(1) The open and continuous possession of the status of a
legitimate children.
legitimate child; or

Here the person claiming as the illegitimate child, had none of F, A, G, H

the primary evidence. But he said that he had been in open
and continuous possession of the status of a legitimate child l
because he lived with his father, receives support, using the
surname without objection from his father, shared in the
B
profits of the business. According to him, under the Family
Code, he can establish his filiation by any other means allowed
by the Rules and Court and other laws e.g. baptismal l
certificate, family bible, admission by silence etc.
C
SC held that The problem of the private respondent, however,
is that, since he seeks to prove his filiation under the second Under the rule on proximity, only A can declare it. One half of
paragraph of Article 172 of the Family Code, his action is now the hereditary estate. Estate consists only of the separate
barred because of his alleged father's death in 1975. share in the absolute/conjugal property.
The second paragraph of this Article 175 reads as follows: e.g. Net Estate = 20 million
The action must be brought within the same period specified in if A is the only child, he is entitled to ½ of the net estate = 10
Article 173, except when the action is based on the second million.
paragraph of Article 172, in which case the action may be
brought during the lifetime of the alleged parent.
If there are four of them = 10million/4 = 2.5million each
It is clear that the private respondent can no longer be allowed

Article 889. The legitime of legitimate parents or ascendants
at this time to introduce evidence of his open and continuous
consists of one-half of the hereditary estates of their children
possession of the status of an illegitimate child or prove his
and descendants.
alleged filiation through any of the means allowed by the Rules
of Court or special laws. The simple reason is that Apolinario
Uyguangco is already dead and can no longer be heard on the The children or descendants may freely dispose of the other
claim of his alleged son's illegitimate filiation. half, subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided. (809a)
That is the rule pertaining to Illegitimate Children.
Legitime of the parents and ascendants is also ½ because they
replace the legitimate child, that is, in default of the latter.
Article 888. The legitime of legitimate children and
descendants consists of one-half of the hereditary estate of
the father and of the mother. e.g. Net Estate = 20 million
The latter may freely dispose of the remaining half, subject to X and Y: 10 million/2 = 5million each
the rights of illegitimate children and of the surviving spouse
as hereinafter provided. (808a) Article 890. The legitime reserved for the legitimate parents
shall be divided between them equally; if one of the parents
Example the only survivors are the legitimate children. should have died, the whole shall pass to the survivor.
MN O P If the testator leaves neither father nor mother, but is

survived by ascendants of equal degree of the paternal and
maternal lines, the legitime shall be divided equally between
\/ \/
both lines. If the ascendants should be of different degrees, it
shall pertain entirely to the ones nearest in degree of either
X Y line. (810)
\ / E.g. the testator is survived by his parents X and Y,

grandparents MN (father side) and OP (mother side), assuming
\/ he has no children.
Testator Assuming all the ascendants are survivors, who will inherit?
l X and Y

e.g. Net Estate of testator = 20 million There are compulsory heirs whose legitimes are fixed (FIXED
LEGITIMES)– legitimate children and legitimate parents in
X and Y: 10 million/2 = 5million each default of the former.
MN O P There are compulsory heirs whose legitimes vary depending

upon the other concurring compulsory heirs. They have
VARIABLE LEGITIMES.
\/ \/
For you to easily memorize the legitimes, Start with the

X Y
legitime of the surviving spouse because it is the most variable
legitime.
\ /
NET ESTATE: 20 MILLION (and for the next preceding
\/ examples)
Testator First, what is the legitime of the surviving spouse if she

survived with one legitimate child?
Assuming the father died (X), and the survivors are Y, MNOP,
how and who are the compulsory heirs? Only Y is entitled Legitimate child = ½ = 10million
because Y excludes MNOP.
Spouse = ¼ from the Free portion = 5million
Assuming the mother died (Y), who are the heirs? MNOP? How
much will each receive? 2.5million. remember, in the
The remaining portion is the FREE DISPOSAL
ascending line we divide it equally.
What if there are two or more legitimate children?

M and N: 5million = 5m/2 = 2.5m each
4 Legitimate children = ½ of the net estate= 10million/4 =

O and P: 5 million = 5m/2 = 2.5m each
2.5million
Assuming P died. Survivors are MNO. How much will be their

Surviving spouse is equivalent to the legitime of each
respective shares?
legitimate child = 2.5million
M and N: 5million = 5m/2 = 2.5m each

In case of legal separation, in case the surviving spouse is not
the guilty spouse, she can still inherit. Otherwise, if he is the
O: 5 million guilty spouse, he/she is disqualified to inherit from the
innocent spouse whether legal or testamentary succession.
Assuming M and N are the only survivors:
Article 893. If the testator leaves no legitimate descendants,
M and N will get the entire 10million but leaves legitimate ascendants, the surviving spouse shall
have a right to one-fourth of the hereditary estate.
Article 892. If only one legitimate child or descendant of the
deceased survives, the widow or widower shall be entitled to This fourth shall be taken from the free portion of the estate.
one-fourth of the hereditary estate. In case of a legal (836a)
separation, the surviving spouse may inherit if it was the
deceased who had given cause for the same. Legitimate ascendants, they inherit if no legitimate
descendants. ½ always. So if the spouse survives with
If there are two or more legitimate children or descendants, legitimate parents or ascendants of the testator, the spouse is
the surviving spouse shall be entitled to a portion equal to the entitled to ¼. It is immaterial to determine if the parents of
legitime of each of the legitimate children or descendants. the testator are still alive. Always ¼ in this case. Taken from
the Free Portion.
In both cases, the legitime of the surviving spouse shall be
taken from the portion that can be freely disposed of by the Article 894. If the testator leaves illegitimate children, the
testator. (834a) surviving spouse shall be entitled to one-third of the
hereditary estate of the deceased and the illegitimate children
to another third. The remaining third shall be at the free
disposal of the testator. (n)
The only survivors are illegitimate children and the spouse. Kung naa siyay anak, kung naa siyay legitimate children, the
The sharing is 1/3 each to the spouse, illegitimate children and parents are excluded, the spouse if there is only one legitimate
free portion. child, the spouse has ¼ , there two or more legitimate
children, the spouse has the same share as one legitimate
The illegitimate children, regardless of their number, will child. The illegitimate children, they get ½ of the share of 1
equally divide the 1/3. legitimate child. Always remember na general rule, if legitimate
children and illegitimate children concur, the illegitimate
children gets ½ of the share of 1 legitimate child. (2013 tsn)
E.g. NET ESTATE: 21 million
Article 900. If the only survivor is the widow or widower, she

7million for the spouse
or he shall be entitled to one-half of the hereditary estate of
the deceased spouse, and the testator may freely dispose of
7million for the illegitimate children the other half. (837a)
7million Free portion If the marriage between the surviving spouse and the testator
was solemnized in articulo mortis, and the testator died within
If there are 7 illegitimate children: 7million/7 = 1million each. three months from the time of the marriage, the legitime of
the surviving spouse as the sole heir shall be one-third of the
Article 895, 897 and 888 no longer applicable. hereditary estate, except when they have been living as
husband and wife for more than five years. In the latter case,
the legitime of the surviving spouse shall be that specified in
Article 896. Illegitimate children who may survive with the preceding paragraph. (n)
legitimate parents or ascendants of the deceased shall be
entitled to one-fourth of the hereditary estate to be taken
from the portion at the free disposal of the testator. (841a) Legitime of the spouse if he or she is the only survivor.
GR: His or her legitime is ½ of the estate.

The only survivors are the illegitimate children and the
legitimate parents and ascendants. Take note, the legitimate
parents and ascendants are excluded by the legitimate XPN: But if the marriage between the spouse and the testator
children. But they are not excluded by illegitimate children. was celebrated in articulo mortis, and the testator died within
They concur with illegitimate children. 3 months from the celebration of the marriage, the legitime of
the surviving spouse is 1/ 3 because the law presumes that the
surviving spouse married the testator because he or she knew
Their respective legitimes:
that time that the testator will eventually die. Marriage for
money over love.
Legitimate parents = ½
The testator must be the one at the point of death and not the
Illegitimate children = ¼ of the hereditary estate other and he died within three months from the celebration of
the marriage. Otherwise, the rule here will not apply.
The remaining ¼ = Free portion
XPN to XPN: if they had been living together as husband and
Article 899. When the widow or widower survives with wife for more than 5 years prior to the celebration of marriage
legitimate parents or ascendants and with illegitimate children, in articulo mortis. The presumption is the marriage was really
such surviving spouse shall be entitled to one-eighth of the because of love and not of money.
hereditary estate of the deceased which must be taken from
the free portion, and the illegitimate children shall be entitled Article 901. When the testator dies leaving illegitimate
to one-fourth of the estate which shall be taken also from the children and no other compulsory heirs, such illegitimate
disposable portion. The testator may freely dispose of the children shall have a right to one-half of the hereditary estate
remaining one-eighth of the estate. (n) of the deceased.
The only survivors are the legitimate parents or ascendants, The other half shall be at the free disposal of the testator.
illegitimate children and the surviving spouse. Take note, (842a)
legitimate parents or ascendants = 1/2; illegitimate children =
1/4, surviving spouse = 1/8.
No problem if it only involves 1 class of compulsory heirs.
Always ½.
So this is what we call the UNHOLY PROVISION because it
seems like the spouse is being penalized for not having
children with the testator.

If there are no other heirs, only the illegitimate children so \/ \/

they are entitled to ½ of the net estate. Actually, general rule,
when only one class of heirs survives, that class gets ½. X Y
Article 902. The rights of illegitimate children set forth in the \ /

preceding articles are transmitted upon their death to their
descendants, whether legitimate or illegitimate. (843a)
\/
For example, testator was survived by his children F A G and

Testator
H.
l
MN O P
F, Aƚ, G, H
\/ \/
l
X Y
B (leg)
\ /
l
\/
C (ill)
Testator
Article 903. The legitime of the parents who have an

l
illegitimate child, when such child leaves neither legitimate
descendants, nor a surviving spouse, nor illegitimate children,
F, Aƚ, G, H is one-half of the hereditary estate of such illegitimate child. If
only legitimate or illegitimate children are left, the parents are
l not entitled to any legitime whatsoever. If only the widow or
widower survives with parents of the illegitimate child, the
B legitime of the parents is one-fourth of the hereditary estate
of the child, and that of the surviving spouse also one-fourth
of the estate. (n)
l
First, legitimate parents surviving with illegitimate children.

C
The law says ½ for the legitimate parents, and ¼ for the
Assuming A predeceased the testator, who will now be the
illegitimate children. Remaining = free portion
heirs of the testator?
Second, illegitimate parents surviving with legitimate or

F, G and H and also under the RIGHT OF REPRESENTATION, A
illegitimate children.
can be represented by B. so his rights are transmitted to his
own heir. B is elevated to the degree and status of A.
Who are the illegitimate parents? If you are an illegitimate
child, your parents are your illegitimate parents because with
What if A is an illegitimate child, who can represent him?
respect to you, your parents are not married. So they are your
illegitimate parents. If the testator has children, then they are
He can be represented by his heirs even if those heirs are his legitimate children (if he is legally married)
legitimate or illegitimate.
Remember the rule: Legitimate parents are excluded by
(in relation to Article 992, IRON BAR Rule – illegitimate legitimate children. But legitimate parents are not excluded by
relatives are barred from inheriting) illegitimate children.
Maam gave an illustration about the IRON BAR RULE, pero dli How about illegitimate parents? The law says, illegitimate
lang daw sa i.mind, so wala nko gisali. parents they are excluded, both by legitimate children and
illegitimate children. So if the testator is an illegitimate child
MN O P and he is survived by his illegitimate parents and legitimate
child. Illegitimate parents are excluded by legitimate or How about the illegitimate child?
½ of the share of a legitimate child = 5m/2 = 2.5million
Third, illegitimate parents surviving with legal spouse.
The remaining 2.5million shall be the free portion
Illegitimate child but he is legally married. Their share ¼ to
the illegitimate parents and ¼ to the surviving spouse. Another example. How about if there are 10 illegitimate
children. Since their share is ½ of the share of a legitimate
Article 904. The testator cannot deprive his compulsory heirs child so 2.5million x 10 = 25million. How do we divide the
of their legitime, except in cases expressly specified by law. estate?
Neither can he impose upon the same any burden, Legitimate children 10million
encumbrance, condition, or substitution of any kind
whatsoever. (813a) Spouse 5million
Legitime is mandated by law. It has to be given to the 5million/10

compulsory heirs regardless of the will of the testator. Can the
testator deprive his compulsory heirs with their legitimes?
Share of each ill child 500, 000
General rule: No.

In this case, no free portion.
XPN: There is a valid ground to disinherit the compulsory

Again, as a general rule, if illegitimate children survive with
heirs.
legitimate children, ½ of the share of a legitimate child unless
the free portion is not sufficient, then the remaining shall be
General rule: The testator cannot impose any burden, divided equally among the illegitimate children.
encumbrance, condition, or substitution upon their legitimes.
September 15, 2014 ran
XPNs: First we have Article 891, the concept of reserve
troncal and Article 1083. Art. 1083. Every co-heir has a right to
Article 891. The ascendant who inherits from his descendant
demand the division of the estate unless the testator should
any property which the latter may have acquired by gratuitous
have expressly forbidden its partition, in which case the period
title from another ascendant, or a brother or sister, is obliged
of indivision shall not exceed twenty years as provided in
to reserve such property as he may have acquired by
article 494. This power of the testator to prohibit division
operation of law for the benefit of relatives who are within the
applies to the legitime.
third degree and who belong to the line from which said
property came. (871)
Legitimes of illegitimate children.
CONCEPT OF RESERVA TRONCAL – system of reservation
Surviving with legitimate children, their share is ½ of wherein a property which originates from one line of the family
the share of one legitimate child. and goes to the other line, eventually that person in the other
line who received that property has to return the thing
Net estate: 20million property to the line where that property originally came from
so the property which in the meantime stray(?) from one line
2 legitimate children to the other is reserved or reserva, reserved for the benefit of
the relatives of the line of the origin.
1 spouse
Basically, in reserve troncal there are several parties:
1 illegitimate child
1) ORIGIN – the origin of the property
2) DESCENDANT – Propositus
½ goes to the legitimate children: 10million/2 = 5million
3) RESERVOR – If the reservoir dies and if there are
each
reserves who survived, the property is transferred
back to the reserves.
The legitime of the spouse is equivalent to the share of 4) RESERVEES – relatives of the descendant/ propositus
legitimate child = 5million who belong to the same line of the origin
So far, 15million.
For example, we have a 10 hectare parcel of land specific lot 2 does nothing in return; or, as ably put by an eminent Filipino
covered by a certain title located in Calinan, DC. This property commentator, 6 "the essential thing is that the person who
belongs to the origin. Who can be the origin? It may be an transmits it does so gratuitously, from pure generosity, without
ascendant or brother or sister of the descendant/ propositus. requiring from the transferee any prestation." It is evident
from the record that the transmission of the property in
The grandfather (on the father side) donated a property to the question to Juanito Frias Chua of the second marriage upon
grandson who is the descendant/propositus. The transfer from the death of his father Jose Frias Chua was by means of a
the origin to the descendant/propositus should be by hereditary succession and therefore gratuitous.
gratuitous title. This origin if this is in the paternal line dapat
for there to be reserva the reservor should belong to the other But the obligation of paying the Standard Oil Co. of New York
line like the maternal line. From the father side there was a the amount of P3,971.20 is imposed upon Consolacion de la
property transferred by gratuitous title to a descendant and Torre and Juanito Frias Chua not personally by the deceased
the descendant did not dispose of the property and he retained Jose Frias Chua in his last will and testament but by an order
the property in his estate until he died without issue and then of the court in the Testate Proceeding No.4816 dated January
same property was transferred to the maternal line by 15, 1931. As long as the transmission of the property to
operation of law. So here there should be a distinction of line. the heirs is free from any condition imposed by the
No reserva if the property is retained in the line of the father deceased himself and the property is given out of pure
side or in the paternal line. It should go to the other side of generosity, it is gratuitous. It does not matter if later the
the family – the mother side or the maternal line. court orders one of the heirs, in this case Juanito Frias Chua,
to pay the Standare oil co. of New York the amount of
Another origin would be a brother or sister. Although the law P3,971.20. This does not change the gratuitous nature of the
says it is brother or sister, it should be a HALF BROTHER or a transmission of the property to him. This being the case the lot
HALF SISTER. Why can it be a full blood brother or sister? No in question is subject to reserva troncal under Art, 891 of the
distinction in the origin of line. New Civil Code.
A brother inn the father side donated a parcel of land to his The transfer from the origin to the descendant/propositus
brother – the propositus – he died without issue, the property should be gratuitous. For example, the grandfather in the
is now inherited by the mother. There is a distinction in line father side donated a land to the grandchild –
because the property originated from the brother in the father descendant/propositus – the next is that property given by
side and now the property is now in the maternal line. gratuitous title should be preserved by the
descendant/propositus because if the descendant sold the
property there can never be reserva at all. The same property
As long as that grandparent, parent, brother or sister should
must remain with the descendant/propositus and then the
belong to a line which is separate and distinct to the line of the
descendant/propositus should die without issue meaning, wala
supposed reservor.
siyay anak/child/descendant because if he dies with issue, the
property will go to his descendant it can never go to an
Let’s now go to the transfer of property from the origin to the ascendant which is a requisite of reserva.
descendant/ propositus.
That’s why in reserva the descendant/propositus is also called
The law says by gratuitous title meaning, the transfer from the the arbiter of the reserva because in his hands depend
ascendant to the descendant is free. Liberality like donation, whether or not a reserva can arise. If he disposes of his
succession (testate or intestate) so as long as the underlying property or if he has children, there can be no reserva.
consideration for the grant by the ascendant or the origin to
the descendant/ propositus is liberality or generosity.
The descendant/propositus died without issue, the same
property remains in his estate. This property in return is
CHUA v. CFI transferred by operation of law to another ascendant in the
other line who is called the Reservor.
Whether the property in question was acquired by Juanito
Frias Chua from his father Jose Frias Chua, gratuitously or not. The transfer from the descendant/propositus to the reservoir is
by operation of law. When can there be transfer by operation
As explained by Manresa which this Court quoted with of law? Legal succession or if he left a will and he instituted his
approval inCabardo v. Villanueva, 44 Phil. 186, "The mother as his sole heir – there can still be reserva. Why?
transmission is gratuitous or by gratuitous title when the Because in testamentary succession we have the concept of
recipient does not give anything in return." It matters not legitime which is provided for by law and which is reserved to
whether the property transmitted be or be not subject to any the compulsory heirs even against the will of the testator.
prior charges; what is essential is that the transmission be Insofar as that portion which pertains to the legitime, that is
made gratuitously, or by an act of mere liberality of the person considered transfer by operation of law.
making it, without imposing any obligation on the part of the
recipient; and that the person receiving the property gives or
Remember: Even there is a will, there can still be rights acquired by the transferee being revoked or resolved by
reserva but the reserva is limited only to the legitime. the survival of reservatarios at the time of the death of the
reservista
For example, the origin bought a lotto ticket and he gave the
ticket by gratuitous title to descendant/propositus. The lotto The sale made by Andrea Gutang in favor of appellees was,
ticket won 10 million. Upon the death of the therefore, subject to the condition that the vendees would
descendant/propositus, the 10million is still intact and the definitely acquire ownership, by virtue of the alienation, only if
mother inherited it. Is it subject to reserva? NO because what the vendor died without being survived by any person entitled
the descendant/propositus acquired from the origin is the lotto to the reservable property. Inasmuch much as when Andrea
ticket, it is different from the winnings. It is not subject to Gutang died, Cipriana Yaeso was still alive, the conclusion
reserva because it is not the same property the becomes inescapable that the previous sale made by the
descendant/propositus received gratuitously. former in favor of appellants became of no legal effect and the
reservable property subject matter thereof passed in exclusive
Let’s go back. The descendant/propositus died. Legal ownership to Cipriana.
succession. The same property was transferred to his mother
who is now the reservor. What are the rights of the mother to The sale executed by the sisters Paulina and Cipriana Yaeso in
the land? Is she the owner of the land? YES. In fact, it is her favor of the spouses Fidel Esparcia and Paulina Sienes was
inheritance. What is now the significance of reserva? That land subject to a similar resolutory condition. The reserve instituted
is subject to the reserva. It means that during her lifetime the by law in favor of the heirs within the third degree belonging
reservor is the owner of the land. Being the owner of the land to the line from which the reservable property came,
she can use it, dispose of it, alienate it or sell the land. How constitutes a real right which the reservee may alienate and
about the reserva? If she dies and there are still reservees who dispose of, albeit conditionally, the condition being that the
survived, the property should now be given to the reservees. alienation shall transfer ownership to the vendee only if and
when the reservee survives the person obliged to reserve. In
What happens now to the ownership of the reservor? That the present case, Cipriana Yaeso, one of the reservees, was
ownership of the reservor is subject to a resolutory condition – still alive when Andrea Gutang, the person obliged to reserve,
it means if that event happens the ownership of the reservor is died. Thus the former became the absolute owner of the
extinguished. What is that event? The death of the reservor reservable property upon Andrea's death.
and there are reservees who survived.
SEPTEMBER 15, 2014 (Justin)
Who are the reservees? They are the relatives of the
descendant/propositus within the 3rd degree coming from the (Recorded quite late. Ma'am gave a situation where both the
line of the origin. reservor and reservee sold the property to third persons.)
(Please refer to your notes or Sigma tsn for illustrations) Reservor now becomes the owner of the property. She can sell
and use the property but her ownership is subject to a
resolutory condition. If she sells the property, the sale is valid.
For example, there are already reservees. How can they be
But if upon her death, there are still reservees who survived,
assured that eventually when the reservor dies and they
the sale is now extinguished because the resolutory condition
survived that they can get the property when in the first place
has taken place - the death of the reservor and the survival of
the reservor acquires ownership over the property? If it’s a real
reservees.
property, the reservees should annotate the fact of the reserva
in the title over the land. If it’s personal property, the reservor
can be required to furnish bond for security. How about the sale made by the reservees? Because the law
also reserves the property to the reservees, the ownership of
the reservees is subject to a suspensive condition. It will be
SIENES v. ESPARCIA
fulfilled only upon the happening of the condition which is the
death of the reservor and the survival of the reservees.
In connection with reservable property, the weight of opinion
is that the reserve creates two resolutory conditions, namely, In sales, future property can be sold. Emptio rei speratae.
(1) the death of the ascendant obliged to reserve and (2) the Even if the property os not yet in existence, it can be the
survival, at the time of his death, of relatives within the third subject of sale on the condition that it will exist. The sale of
degree belonging to the line from which the property came (6 the reservees is a future sale subject to the condition that it
Manresa 268-269; 6 Sanchez Roman 1934). This Court has should exist.
held in connection with this matter that the reservista has the
legal title and dominion to the reservable property but subject
to a resolutory condition; that he is like a life usufructuary of As of now, because the reservor is still alive, the sale made by
the reservable property; that he may alienate the same but the reservor is valid. The buyer can already acquire the
subject to reservation, said alienation transmitting only the property but subject to a resolutory condition. The sale made
revocable and conditional ownership of the reservists, the by the reservees is also valid but subject to the subject
condition of their survival upon the death of the reservor. How do we compute the value of the reserva? We have two
Since that condition has not yet taken place, the buyers of the computations: reserva maxima and reserva minima. As we
reservees cannot yet demand for the property but once the said, the transfer from the propositus to the reservor should be
reservor dies and there are reservees who survive, the buyer by operation of law. If it is legal succession, there is no
of the reservor should now convey the property in favor of the problem. We have a problem if the descendant left a will. How
buyer of the reservees, because the suspensive condition on much of the property is covered by the reserva? Assuming, 1
the part of the reservees on the sale made by them has million. Descendant left a will, died leaving only his mother.
already been fulfilled. Even if he left all his properties to his mother in the will, one
half belongs to his mother's legitime, the other half is the free
So both sales are actually valid. portion. What will be covered by the reserva will only be the
legitime.
What we call the inheritance of a reservee is a deferred
We have reserva maxima and reserva minima. Under the
inheritance. Once their reservor dies, their inheritance
theory of reserva maxima, the value is as much as can be
becomes effective. If all of them (reservees) survives, will all
covered by the legitime. Under reserva minima, all properties
they share equally?
which came from the descendant propositus to the reservor,
one half of that is the legitime, one half of that is the free
The concept of reservatroncal merely determines which class portion.
of heirs will the property belong after the death of the
reservor. But between and among the reservees, as to who of
1 million. Namataysi descendant with a will. 1/2 of that is the
them will inherit, we follow the rule in legal succession - the
legitime, 500,000. Under the theory of reserva maxima, as
rule on proximity. The nearer relatives exclude those who are
much as can be covered by the legitime, 500,000. Upon the
far.
death of the reservor, only 500,000 will go to the reservees. In
reservaminiman, of the 1M, 1/2 is the legitime, 1/2 is the free
(Illustrates on the board) For example, between the grand portion. So 500,000 is still the value of the reserva.
parents and the great grandparents, the grandparents. If the
survivors are great grandparents, nephews and nieces, they
If during his lifetime, the descendant propositus acquired
are all in the third degree. Other than rule in proximity, we
properties of his own, worth 400,000. Upon his death, his
have a rule that those who are in the direct line are favored
estate if 1.4 million. Legitime of the mother is 700,000. Under
over those who are in the collateral line. So, it is the great
reserva maxima, as much as can be covered, 700,000. In
grandparents since they are in the direct line. The nephews
reserva minima, in we assume that in every property left by
and nieces are in the collateral line.
the propositus, 1/2 is the free portion, 1/2 is the legitime.
Under reserva minima, 500,000 ang legitime, 500,000 ang free
For example, the survivors are the uncles and aunts, the portion. Out of the 400,00, 200 is the legitime, 200 is the free
nephews and nieces. Both are in the third degree and in the portion. The reserva is only 500,000, kay maora man ni ang
collateral line. Another rule is those who are in the descending gikan sa origin. Although ang legitime natuod sa mother is
line are favored over those who are in the ascending line. In 700,000, ang 200,000 gikan man sa property na
succession, we follow the law on gravity - going down than naacquirenipropositus thru his own efforts.
going up.
Assuming the descendant propositus, out of his own efforts, he
We call the inheritance also as falling under the concept of acquired property worth 2 million. By donation, he also
delayed intestacy. If you are asked what is the delayed acquired his property from the origin. He died, left a will,
intestacy theory, it means that when the resolutory condition instituting his mother as his sole heir. 3 million goes to the
of the reservor is fulfilled, the properties are distributed to the mother. Legitime is 1.5M. Reserva maxima, as much as can be
reservees as if they are inheriting from the propositus, at the covered, the reserva is only 500,000. Even if the legitime is
time of the fulfillment of the condition. 1.5, di ka mulampassa value of the property which orginated
from the origin. Reserva minima is 500,000 - 1/2 of the 1
Why delayed? Because these reservees should inherit from the million which was received from the origin. (CONFUSING AS
descendant propositus, they are actually relatives of the TO RESERVA MAXIMA, CONFLICTS WITH PREVIOUS
descendant propositus. They are not relatives of the reservor, EXAMPLE?)
they do not inherit from the reservor. But because of some
accident of life like the survival of the reservor, they cannot yet
Which theory prevails? Some authorities would say maxima
get the property. But upon the death of the reservor, because
because it is more in line with the concept of reserva, as much
of the fact that the property which went to the reservor belong
as can be covered. Others say minima because it is more
to the line of the origin, the property shall go back to the line
equitable. The prevailing rule is minima.
from which it came from. So they will now inherit from the
descendant propositus after the reservor dies.
Reserva will only matter if transfer to the reservor is by will. If
by legal succession, tanannga property nagikan sa origin, part
Let us now go to the computation :( sya sa reserva because everything goes by operation of law.
Take not also that in reservatronca, all the relationships must Art. 907. Testamentary dispositions that impair or
be legitimate. diminish the legitime of the compulsory heirs shall be
reduced on petition of the same, insofar as they may be
Problem: The grandfather from the father side donated inofficious or excessive. (817)
property worth 1 million to his grandson. The grandson also
died without issue and left the property thru legal succession Legitimes have to be satisfied. For example, the testate in 10
to his mother. Now, the mother died. There is now reserva. million and the decedent left legitimate children who are
The survivors now are igsuonsaiyang mother, great entitled to 1/2 of the estate, 5 million. But in the will, the
grandfather sa father's side and grandmother, asawa sa testator gave 7 million to his best friend. That legacy is
magdonate sa property. Who is now entitled to the property? inofficious because if we comply with that legacy, that would
impair the legitime of the children. A legacy is inofficious when
If the property was transferred by legal succession, the sister it exceeds the free portion.
of her mother, wala nay labot because everything should go
back to the line of reservees. But if there is a will left by
Art. 908. To determine the legitime, the value of the
descendant propositus, sister saiyang mother entitled to the property left at the death of the testator shall be
free portion. Sa legitime, reserva, mubalik to sya sa reservees.
considered, deducting all debts and charges, which
shall not include those imposed in the will.
Great grandfather or grandmother? Great grandfather because To the net value of the hereditary estate, shall be
the reservees again are the relatives of the descendant
added the value of all donations by the testator that
propositus, who are in the third degree and coming from the are subject to collation, at the time he made
line of the origin. The grandmother does not belong to the
them. (818a)
same line of her husband.
That would be all for reservatroncal.

This is how to compute the net estate.
(Two inaudible questions from classmates)

If the decedent was married during his lifetime, he should also
observe the liquidation of the property regime. The share of
Art. 905. Every renunciation or compromise as regards the surviving spouse is not part of the estate.
a future legitime between the person owing it and his
compulsory heirs is void, and the latter may claim the
The value left at the time of death and if there are debts left
same upon the death of the former; but they must unpaid, taxes, expenses, these will be deducted. If he left an
bring to collation whatever they may have received by
estate worth 10M, that is the gross value. If he has debts of 2
virtue of the renunciation or compromise. (816) million, 8 million will be left which will be the basis of the
legitime.
During the lifetime of the decedent, the heirs only have an
inchoate right. Whatever disposition, conveyance, alienation,
Art. 909. Donations given to children shall be charged
the decedent have made during his lifetime cannot be
to their legitime.
questioned by his heirs. In the same manner, they cannot in
advance renounce their inheritance. They cannot enter into a
compromise agreement regarding their legitime. Donations made to strangers shall be charged to that
part of the estate of which the testator could have
disposed by his last will.
Upon the death of the decedent, that heir who made waived
cannot be barred. He can still claim. It was in fact premature
for him to renounce during the lifetime of the decedent. But Insofar as they may be inofficious or may exceed the
whatever he has received by reason of the compromise shall disposable portion, they shall be reduced according to
be considered as advances. the rules established by this Code. (819a)
Art. 906. Any compulsory heir to whom the testator has

left by any title less than the legitime belonging to him Assuming when the decedent left properties worth 10M and he
may demand that the same be fully satisfied. (815) left debts amounting to 2M. During his lifetime, he mad several
donations. 300K worth to his son. 1M to a friend. How do we
compute the net estate?
As long as the legitime of the compulsory heir has not been
fully satisfied, either because he was preterited or given a little
10M - 2M = 8M. Then, collate the donations. Collation is only
amount, he can demand that his legitime be satisfied.
required when there are compulsory heirs. 8M + 1.3M
(collated donations) = 9.3M This is the value of the net estate.
The legitime is 4.650M which will go to the son. From his made several legacies. One is for 50,000. Other is for 100,00
legitime will be computed the donation which he received which is preferred. Another for 200,000.
during the lifetime of the testator. It will he considered as an
advance to his legitime. Donations made to compulsory heirs shall be charged to their
legitime. Donations made to strangers shall be charged to the
To the bestfriend, 1M. It will be charged to the free portion free portion. Legacies and devises are also taken from the free
which is also worth 4.650M. It is still covered therefore it is not portion. Assuming that the free portion is not sufficient to
inofficious. cover all, the free portion is only 1M.
Art. 910. Donations which an illegitimate child may What is the order of priority? Between legacies and donations,
have received during the lifetime of his father or donations are preferred. They will be satisfied first, charged to
mother, shall be charged to his legitime. the free portion. If free portion is insufficient to cover the
donations, there is no more possibilities that the legacies can
still be given. Between two donations, the earlier ones are
Should they exceed the portion that can be freely
preferred. 1M - 500,000 = 500,000. 500-000 - 300,000 =
disposed of, they shall be reduced in the manner
200,000.
prescribed by this Code. (847a)
You still have legacies. The preferred legacy shall be preferred.

Donations made to illegitimate children must also be collated
200,000 - 100,000 = 100,000. There are still two legacies
and upon computation of the net estate, these donations to
unsatisfied. Pro rata sharing.
them must be considered also as advances of their legitimes.
How do we pro rate? 50K/250K = 1/5, 200K/250K = 4/5. 1/5

How about donations to spouses? They cannot donate to each
of 100K is 20K. 4/5 of 100K = 80K.
other. Because they are considered void, they are considered
not to have reduced the estate.
911 will apply of there are donations inter vivos and
compulsory heirs.
What if the donation was made before the marriage? It is
considered as donation to a stranger.
September 18, 2014 (Thursday)
Art. 911. After the legitime has been determined in

By SGM
accordance with the three preceding articles, the
reduction shall be made as follows:
Article 912. If the devise subject to reduction should consist
(1) Donations shall be respected as long as the legitime of real property, which cannot be conveniently divided, it shall
can be covered, reducing or annulling, if necessary, the go to the devisee if the reduction does not absorb one-half of
devises or legacies made in the will; 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.
(2) The reduction of the devises or legacies shall be pro
rata, without any distinction whatever.
Here again, as we have discussed before, what can be given
as a legacy or devise or as to voluntary inheritance, can only
If the testator has directed that a certain devise or be the free portion. So the heirs must be given their legitimes.
legacy be paid in preference to others, it shall not
suffer any reduction until the latter have been applied
in full to the payment of the legitime. What if the devise is inofficios because it exceeds the free
portion?
(3) If the devise or legacy consists of a usufruct or life
annuity, whose value may be considered greater than The rule is it has to be reduced.
that of the disposable portion, the compulsory heirs
may choose between complying with the testamentary But what if it cannot be conveniently divided because, for
provision and delivering to the devisee or legatee the example, parcel of land which is just 50 sq meters, but it is
part of the inheritance of which the testator could inofficious kay gamay nalang ang free portion. It cannot be
freely dispose. (820a) covered. For example the value of that land is 500,000 and it
has to be reduced by 100,000 because to give the entire
500,000 would be inofficious already. It would impair the
(Illustrates on the board)
legitimes of the compulsory heirs. So it has to be reduced by
100,000 but it cannot be divided. So kung kuhaan nimo sya ug
For example, the decedent made certain donations. One in 10 sq meters, ihatag nimo sa heir to complete his legitime,
1980, worth 500,000. In 1990, 300,000. In the will, he also tapos ang 40 sq meter kay sa devisee. Useless na sya.
The rule says that if it does not exceed 50% ang reduction. So Of course, for as long as the heirs, devisees or legatees are
ihatag sa devise ang entire 50 sq meters pero ang value would not disqualified under the law to inherit from the testator.
be given to the heir whose legitime shall be impaired. So
sya(devisee) ang muhatag. Iyaha tanan ang 50 sq m na land So we now got to DISINHERITANCE
and if its corresponding reduction would be 100,000, sya
bayaran na niya ang heir ug 100,000 tapos iyaha na ang entire
As we have already discussed, the heirs are entitled to their
parcel of land.
legitimes. That entitlement is protected by law. in fact, there
are several safeguards provided by law to ensure that the
If it exceeds 1/2 ang reduction, so kinahalanglan sya bawasan legitimes of the heirs are satisfied and protected.
ug 400,000 nga value anang 50 sq meter na land. But it
cannot be divided physically, so invalid nalang. But again, the
Safeguards:
reduction exceeds 50%, so mabawas jud sa iyaha ang
400,000. In that situation, ihatag nalang sa heir ang entire
land and the heir will have to compensate the devise for 1. Even if the decedent donated properties, during his
100,000. lifetime, those donations shall be brought back to the
estate at the time of death of the testator. The
concept of collation. The decedent cannot
If the heir is the same time a devisee, he may keep the devise
circumvent the law on legitimes by donating all his
plus the legitime, provided the value of the devise will also not
properties because these properties, or the value of
exceed the free portion. As long as the legitimes of the other
these properties will be collated.
compulsory heirs will not be prejudiced.
2. If there are 2 legitimate children and 10 illegitimate
In all cases, just remember that devises and legacies can be children, diba ILC are entitled to 1/2 of the share of 1
respected for as long as they do not exceed the free portion, LC, but we cannot follow this if the estate is not
because if they already exceed the free portion, they are sufficient to satisfy all the legitimes.
already inofficious and they will impair the legitimes of the For example, 10M ang estate, 1 spouse, 2 LC, and 10
compulsory heirs. ILC. How do we divide?
1/2 would be the legitime of the LC divided by 2 kay
Article 913. If the heirs or devisees do not choose to avail duha man sila. 2.5M each.
themselves of the right granted by the preceding article, any Spouse equivalent to the share of 1 LC
heir or devisee who did not have such right may exercise it; Usually, the share of the ILC is 1/2 of the share of the
should the latter not make use of it, the property shall be sold LC. So iyaha kay 1.25M, unya kay 10 man sila
at public auction at the instance of any one of the interested kabuok, so kulangan pa ang entire estate. in that
parties. (822) case, we just give the remaining portion to the
It says that if dili mag exercise sa ilang right katong mga So in that case, the legitime of the Surviving spouse
entitled na heirs or devisees, others may exercise their right. and the ILC are not prejudiced simply because the
They may instead ask for the compensation. decedent left several ILC.
Although this safeguard is for the protection of the
ILC and the spouse.
If for example, wlay mag exercise, walay moingong nga “akoa
nalang ni, tagaan nalang tika ug kwarta”. The property shall be 3. Rule on preterition under Art 854, if the
sold at public auction. So tanan nga property, katong 50 sq compulsory heir in the direct line is omitted in the will
meters, ibaligya at public auction kay wala may gusto mukuha and in the inheritance, the institution of heirs shall be
sa iyaha. The proceeds shall be given to the respective heirs annulled.
and devisees. So the legitime of the omitted heir is still given and in
fact, he will share also in the remainder of the estate
So sa heirs, kung halimbawa ang ilahang kailangan para not only his legitime.
macomplete ang ilang legitime is 100,000, ilaha ang 100T and
sa devise, ilaha ang 400T. 4. The law on disinheritance.
The testator may deprive a compulsory heir of his
Article 914. The testator may devise and bequeath the free legitime but it should be for the ground provided for
portion as he may deem fit. (n) by law.
The free portion here is actually the free disposal because Article 915. A compulsory heir may, in consequence of
there are certain legitimes that will have to be satisfied out of disinheritance, be deprived of his legitime, for causes expressly
the free portion. That would be the legitime of the surviving stated by law. (848a)
spouse and the legitimate children. So after deducting their
shares, and we have the free disposal, the testator may Here, one limitation on the right to disinherit is that:
dispose of that portion as he may deem fit.
(1) The cause must be expressly stated by law. when the testator made the will, there was still no attempt.
This is one requisite. Because even if you have a But if in the future, the son really attempted and in fact was
valid ground to disinherit the heir but you just say in convicted. Is the son or can the testator can already disinherit
the will: I hereby disinherit my son, X. without him based on that previous will? NO. if he wants to disinherit
specifying what is the cause, that is invalid. Or even that son, he has to execute another will disinheriting his son.
if you specify the cause but it is not one of those The former disinheritance is not effective because a
mentioned or provided for under the law, I hereby disinheritance has to be based on an existing cause.
disinherit my son because he looks like my driver. So
that is also an invalid disinheritance. Although there Effect of invalid disinheritance:
is a cause, it is not one expressly stated under the
law.
The law says, shall annul the institution of heirs insofar as it
may prejudice the person disinherited; but the devises and
Article 916. Disinheritance can be effected only through a will legacies and other testamentary dispositions shall be valid to
wherein the legal cause therefor shall be specified. (849) such extent as will not impair the legitime.
There should be a will. You cannot disinherit without a will. To Don’t you think this sound similar to the effect in preterition?
be effective, the disinheritance must be embodied in a valid Ha? Sounds more or less but not really.
will. So all the formal requisites for the execution of a will
must be complied with. And again, the legal cause shall be
We will go back preterition.
specified.
Assuming the testator had 3 children A B and C.12M ang

Article 917. The burden of proving the truth of the cause for
estate. in the will, he only gave properties to A and B. he
disinheritance shall rest upon the other heirs of the testator, if
instituted A and B as his sole heirs and C is preterited. How do
the disinherited heir should deny it. (850)
we divide the estate? because there is preterition, the
institution of heirs will be annulled. So there shall be intestacy.
It must be proved. The cause must be a true cause. Even if The entire 12M shall be divide equally between A B and C, 4M
the testator expressly provided the ground and it is one of the each.
grounds mentioned by law, but if the heir says that it is not
true. Halimbawa, this was a case of an invalid disinheritance. C was
disinherited because…pangit sya.  mao na ingon sa testator,
That is not true, I did not live a disgraceful and immoral life. now that’s not a valid ground for disinheritance and the
So he denied the ground, the proponents of the will have to testator instituted A and B as his sole heirs. How do we
prove that indeed he ground for disinheritance existed. distribute? In case of invalid disinheritance.
It is not automatic that when there is a disinheritance The law says, the institution of heirs will be annulled but only
mentioned in the will, the heir is already excluded. It has to insofar as to the part of the invalidly disinherited heir is
be proved by the proponents of the will. concerned. The devisees and legacies which are not inofficious
shall be respected.
Article 918. Disinheritance without a specification of the
cause, or for a cause the truth of which, if contradicted, is not Here we give the legitimes, 12M divided by 2= 6M. divided by
proved, or which is not one of those set forth in this Code, 3= 2M.
shall annul the institution of heirs insofar as it may prejudice
the person disinherited; but the devises and legacies and other So 2M ang legitimes, the Free portion, to whom shall it be
testamentary dispositions shall be valid to such extent as will given? Only to A and B, because C was instituted. Only A and
not impair the legitime. (851a) B, to be divided equally between them.
We already mentioned before the requisites of a valid What if, let’s go back to preterition, only A and B and the best
disinheritance, so Art 918 says: friend X were instituted as sole heirs to the estate. C is
preterited. How do we divide? Again annul the institution of
 without a specification of the cause, or heirs. Total annulment, in effect, intestacy, divide the 12M
 for a cause the truth of which, if contradicted, is not equally among A B and C. X will not receive because he is not
proved, or a compulsory heir and his institution is annulled by reason of
 which is not one of those set forth in this Code preterition.
what is the effect? The disinheritance is invalid. Also you Assuming it is an invalid disinheritance, how do we divide?
cannot disinherit an heir for a future cuase. Like if my son will Give to the heirs their legitimes. The Free portion can now be
attempt against my life, I will disinherit him. So at the time given to A B and X, because they’re the only ones instituted.
So take note in invalid disinheritance, the annulment of the (1) When a child or descendant has been found guilty of an
institution of heirs is not total, up to the extent that the attempt against the life of the testator, his or her spouse,
legitime of the invalidly disinherited heir is concerned. descendants, or ascendants;
Article 919. The following shall be sufficient causes for the  the law says, found guilty, this presupposes that there
disinheritance of children and descendants, legitimate as well has been conviction or final judgment. Dapat
as illegitimate: maconvict jud ang heir sa crime. Kung wala, dili valid
ang disinheritance.
(1) When a child or descendant has been found guilty  Stages of Execution: in the RPC there are 3, namely,
of an attempt against the life of the testator, his or attempted, frustrated and consummated. The law
her spouse, descendants, or ascendants; says, attempt, what if frustrated or consummated?
Will that be enough to disinherit? YES, with more
reason diba. Ground gani ang attempted, with more
(2) When a child or descendant has accused the reason ang frustrated ug consummated. So
testator of a crime for which the law prescribes frustrated and consummated included.
imprisonment for six years or more, if the accusation  As to the degree of participation: we have principal,
has been found groundless; accessory, and accomplices. The law only
contemplates principal and accomplices.
(3) When a child or descendant has been convicted of  Attempt against the life: it covers also frustrated and
adultery or concubinage with the spouse of the consummated.
testator;  How about imprudence? Because of the negligence of
the heir na paspas nagpadagan sa vehicle,
(4) When a child or descendant by fraud, violence, nabanggaan niya nag testator. Hapit namatay si
intimidation, or undue influence causes the testator to testator, is that a ground? The law presupposes
make a will or to change one already made; intentional crimes, not one by negligence.
(5) A refusal without justifiable cause to support the (2) When a child or descendant has accused the testator of a
parent or ascendant who disinherits such child or crime for which the law prescribes imprisonment for six years
descendant; or more, if the accusation has been found groundless;
(6) Maltreatment of the testator by word or deed, by  Accusation of a crime: for it to be a ground to
the child or descendant; disinherit a child or a descendant, the penalty
prescribed by law must be 6 years or more.
 So kung malicious mischief lang na sya, ang imung gi-
(7) When a child or descendant leads a dishonorable
accuse sa testator or unjust vexation, dili na sya
or disgraceful life;
ground to disinherit.
 The accusation should be found groundless. Kay
(8) Conviction of a crime which carries with it the kung tinuod man diay ang imung gi accuse sa
penalty of civil interdiction. (756, 853, 674a) testator, so that is not a ground to disinherit.
 What are the ways of accusing the testator?
These are the grounds to disinherit the children. If a parent or o In the form of filing a case against the
ascendant is the one who disinherits. The descendants or the testator
children will be legitimate or illegitimate. o Falsely testifying against the testator
o Refusing to testify in favor of the testator
Take note: you discuss in your family code about adoption. An when your testimony would have been
adopted child under the adoption act, has the same material to the acquittal of the testator
successional rights as legitimate children. So same gihapon
ang computation insofar as the legitimes of the adopted child (3) When a child or descendant has been convicted of adultery
is concerned and an adopted child can also be disinherited. or concubinage with the spouse of the testator;
In fact, in adoption, the adopter can no longer rescind the  Si child ni testator naa syay affair sa asawa ni
adoption but the adoptee (adopted child) can rescind. So if testator. Possible na asawa ni testator kay mama ra
your adopted child turns out to be way pulos, you cannot pud sa child. (ew!) or anak sa lain. Basta spouse sa
rescind the adoption. Bound ka. What can you do? You can testator.
disinherit the adopted child. He shall be disinherited for the  Convicted of adultery or concubinage
ground provided by law.  Remember we are talking here of the child. This is a
ground to disinherit the child. If the child has been
found guilty of adultery or concubinage with the
spouse of the testator.
(4) When a child or descendant by fraud, violence, her grandfather, and that was the cause for
intimidation, or undue influence causes the testator to make a her disinheritance by her grandfather. The
will or to change one already made; record shows that very soon after said event
she lost the use of her mental powers and
 This is self-explanatory. that she has never regained them, except for
 These are the vices of consent. very brief periods, up to the present time.
 The testator made a will or changed one because his o The SC held that taking into account her
consent was vitiated by the act of the child or tender years, and she should very soon
descendant. thereafter lose the use of her mental
faculties, the conclusion was reached that
she was not responsible for the disrespect
(5) A refusal without justifiable cause to support the parent or and disobedience shown to her grandfather
ascendant who disinherits such child or descendant; in the year 1894 or 1895.
o Meaning, she was kind of mentally unsound
 Take note, there is refusal to support. at that time. Maybe she was able to do that
 Refusal is without justifiable ground. to her grandfather because she had no
 When would a refusal be unjustifiable? It depends; intelligence at that time. She lost the use of
we have to look into the situation of the child and of her mental faculties. Whatever she did to her
the testator. The needs of the testator and the means grandfather was not voluntary and not
of the child, from whom support is being demanded. intelligently made by her. The SC said that is
Because if the testator does not need support, not a ground to disinherit a granddaughter.
because he is a billionaire and the child is just a o The grounds for disinheritance presuppose
middle class but the testator demands support from that the acts done are done intentionally,
the child, is that a ground to disinherit? NO, the voluntarily, intelligently, deliberately
refusal here is not unjustifiable. by the heir who was disinherited.
 Look at the necessity of the testator and the o This could have been a ground as
means of the descendant or child who gives the maltreatment, kung sane lang si Rosario
support. when she did the act. So she cannot be
validly disinherited.
(6) Maltreatment of the testator by word or deed, by the child  SEANGIO v. REYES GR 140371-72 NOVEMBER
or descendant; 27, 2006
o Here, Segundo left a holographic will
disinheriting his son Alfredo for a cause.
 PECSON v. MEDIAVILLO GR 7890 SEPTEMBER
o Probably Seangio here was a Chinese, based
29,1914
on the kind of tagalog. (HAHA)
o This was the will of the testator:
o Except of the will:
o I declare that one of my daughters, named
Teresa, now deceased, left a legitimate
daughter named Rosario Mediavillo. I also “Ako si Segundo Seangio Filipino may asawa
declare that I disinherit my granddaughter, naninirahan sa 465-A Flores St., Ermita,
the said Rosario Mediavillo, because she was Manila at nagtatalay ng maiwanag na pag-
grossly disrespectful to me and because on iisip at disposisyon ay tahasan at hayagang
one occasion, when it was I do not inaalisan ko ng lahat at anumang mana ang
remember, she raised her hand against paganay kong anak na si Alfredo Seangio
me. Therefore, it is my will that the said dahil siya ay naging lapastangan sa akin at
Rosario Mediavillo shall have no share in my isan beses siya ng sasalita ng masama
property. harapan ko at mga kapatid niya na si Virginia
o So he disinherited his granddaughter. Upon Seangio labis kong kinasama ng loob ko at
the death of the testator, and during sasabe rin ni Alfredo sa akin na ako nasa
probate, Rosario alleged that her ibabaw gayon gunit daratin ang araw na ako
disinheritance was without cause. nasa ilalim siya at siya nasa ibabaw.
o SC: It appears from the record that when
Rosario Mediavillo was about 14 years of Labis kong ikinasama ng loob ko ang gamit
age, she had received some attentions from ni Alfredo ng akin pagalan para
a young man — that she had received a makapagutang na kuarta siya at kanya
letter from him — and that her grandfather, asawa na si Merna de los Reyes sa China
Florencio Pecson, took occasion to talk to Bangking Corporation na millon pesos at
her about the relations between her and the hindi ng babayad at hindi ng babayad ito ay
said young man; that it was upon that nagdulot sa aking ng malaking kahihiya sa
occasion when, it is alleged, the mga may-ari at stockholders ng China
disobedience and disrespect were shown to Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo  What if aside sa fact na gay sya, openly nagladlad na
at ng kanyang asawa na mga custome[r] ng jud sya, daghan na sya ug mga boylets (HAHA)? Is
Travel Center of the Philippines na that dishonorable? Well if you can argue that it is, the
pinagasiwaan ko at ng anak ko si Virginia. lawyer of the parent who disinherits the child, ayaw
ingna na pwede sya idisinherit not because gay sya
Dito ako nagalit din kaya gayon ayoko na but because he is living a dishonorable and
bilanin si Alfredo ng anak ko at hayanan disgraceful life.
kong inaalisan ng lahat at anoman mana na  How about kung nag-one night stand? One night
si Alfredo at si Alfredo Seangio ay hindi ko lang, lahi na pud ng every night stand (HAHA), is that
siya anak at hindi siya makoha mana.” living a dishonorable or disgraceful life? The law says
life, so it means being practiced, habitual, a way
of living. So kung one night lang, maka-argue ka na
o There was a question first which we already
dili mana siya life, I was just curious at that time.
discussed, is this document a will? Because it
 So it really depends.
did not contain any disposition of property, it
merely contained a disinheritance. The SC
answered it yes because even a (8) Conviction of a crime which carries with it the penalty of
disinheritance can be considered an indirect civil interdiction. (756, 853, 674a)
disposition of property.
o As to the grounds mentioned by the testator,  If the child or descendant has be convicted by final
would this be sufficient ground to disinherit? judgment of a crime which carries a penalty of civil
Can this be considered as maltreatment? interdiction.
YES  Civil interdiction is an accessory penalty.
o With regard to the disinheritance stated by  Example crimes punishable by reclusion perpertua or
Segundo in his document, the court believes death, if death is commuted to RP, usually naay
that the incident taken as a whole can be penalty of civil interdiction. Kay kung ang penalty is
considered as a form of maltreatment of death, wala sya na commute, wala nay civil
Segundo by his son and that the matter interdiction. Patay na gani ka diba.
presents a sufficient cause for the  Heir can be disinherited.
disinheritance of a child or descendant under
Article 919 of the Civil Code. Article 920. The following shall be sufficient causes for the
o Take note that the ground of disinheritance of parents or ascendants, whether legitimate or
maltreatment is present only as a illegitimate:
ground to disinherit a child or
descendant by a parent or ascendant.
It is because it would be unusual for a child (1) When the parents have abandoned their children
na bunalan iyang ginikanan. Pero there is no or induced their daughters to live a corrupt or
ground to disinherit for a parent if the parent immoral life, or attempted against their virtue;
commits maltreatment. Dili normal na
imuhang disiplinahon imung parents. (2) When the parent or ascendant has been convicted
 MANINANG v. CA GR L-57848 JUNE 19, 1982 of an attempt against the life of the testator, his or
(distinction between disinheritance and preterition) her spouse, descendants, or ascendants;
(7) When a child or descendant leads a dishonorable or (3) When the parent or ascendant has accused the
disgraceful life; testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation
 When do we consider that a life is already has been found to be false;
dishonorable or disgraceful? Unsa man ang standards
or criteria? (4) When the parent or ascendant has been convicted
 We don’t have a hard and fast rule as to what is a of adultery or concubinage with the spouse of the
dishonorable or disgraceful life. It really depends testator;
upon the situation, the values or norms sa society.
 I don’t know if you will consider, for example being (5) When the parent or ascendant by fraud, violence,
gay, is not a ground to disinherit a child. When a child intimidation, or undue influence causes the testator to
turns out to be gay, lesbian or homosexual, it’s not a make a will or to change one already made;
ground to disinherit.
 How about imung asawa gay or lesbian? Is that a
(6) The loss of parental authority for causes specified
ground? We will go to that later.
in this Code;
 Pero sa child, dili sya ground to disinherit.
(7) The refusal to support the children or descendants (7) The refusal to support the children or descendants without
without justifiable cause; justifiable cause;
(8) An attempt by one of the parents against the life  Again, this depends upon the necessity and the
of the other, unless there has been a reconciliation means.
between them. (756, 854, 674a)
(8) An attempt by one of the parents against the life of the
Here, the one being disinherited is a parent or ascendant and other, unless there has been a reconciliation between them.
the testator here is the child or descendant. The grounds are (756, 854, 674a)
actually same as grounds to disinherit the child.
 So mag-asawa, A and B, ilang anak si X.
(1) When the parents have abandoned their children or  It is X the anak that will disinherit.
induced their daughters to live a corrupt or immoral life, or  Take note that under this ground, the attempt is
attempted against their virtue; sufficient, there is no need of conviction by
final judgment.
 Here, abandonment does not have to amount to a  Example, A attempted to the life of B. So X can
crime, as long as the child is deprived of the disinherit B for the attempt on the life of A.
basic support.  But if prior to the execution of the will, the parents
 Induced their daughters…, imuhang gihimong already reconciled or even after, the parents already
prostitute ang imuhang daughter. The law says reconciled. What happens to the disinheritance made
daughters, how about sons? Would that be a ground by the child? Is it still effective? No more. Because the
to disinherit the parent? It will apply by analogy. law say, unless there has been a reconciliation
Although at the time the CC was drafted in the 1950s between them.
dili pa uso nga ibugaw ang lalaki. Babae pa ang  Here the law is saying, if the mother had already
ginaprostitue. Both are susceptible to corruption. found it in her heart to forgive her husband, with
more reason should the child because the child is not
the one directly affected, it is the parent that was
(2) When the parent or ascendant has been convicted of an offended. Kung naka pasaylo imung ginikanan,
attempt against the life of the testator, his or her spouse, nganong ikaw dili ka makapasaylo? Whatever
descendants, or ascendants; attempt, na-erase na to sya by reconciliation.
 Take note we also have, #2, it says that convicted of
(3) When the parent or ascendant has accused the testator of an attempt so there has to be conviction by final
a crime for which the law prescribes imprisonment for six years judgment.
or more, if the accusation has been found to be false;  #8 is a special provision, relating to an attempt of the
parents on the life of the other. We don’t need
(4) When the parent or ascendant has been convicted of conviction. Remember this!
adultery or concubinage with the spouse of the testator;  If it is the parent of the testator, an attempt by one
against the other parent, mere attempt, without
conviction would be sufficient.
(5) When the parent or ascendant by fraud, violence,
 But if you are talking of the lola, you go back to #2,
intimidation, or undue influence causes the testator to make a
because the law says ascendant. Lahi lang tong
will or to change one already made;
parent, katong #8.
 Grounds Nos 2-5: Same as the ground to disinherit a

Article 921. The following shall be sufficient causes for
child
disinheriting a spouse:
(6) The loss of parental authority for causes specified in this

(1) When the spouse has been convicted of an
Code;
attempt against the life of the testator, his or her
descendants, or ascendants;
 Take note there are several ground of losing parental
authority, such as:
(2) When the spouse has accused the testator of a
o Emancipation of the child, the child reaches
crime for which the law prescribes imprisonment of
the age of 18, parental authority is lost.
six years or more, and the accusation has been found
Does it follow that the child can already
to be false;
disinherit the parent or ascendant?
o The loss of parental authority should be
because of the fault of the parent. That (3) When the spouse by fraud, violence, intimidation,
is penalized by the law. or undue influence cause the testator to make a will
or to change one already made; six years, even if pardoned;
(4) When the spouse has given cause for legal (5) Drug addiction or habitual alcoholism of
separation; the respondent;
(5) When the spouse has given grounds for the loss (6) Lesbianism or homosexuality of the
of parental authority; respondent;
(6) Unjustifiable refusal to support the children or the (7) Contracting by the respondent of a
other spouse. (756, 855, 674a) subsequent bigamous marriage, whether in
the Philippines or abroad;
Some of the grounds again are the same as those of the
grounds to disinherit a child or parent. We are talking here of a (8) Sexual infidelity or perversion;
disinheritance by one spouse to another spouse.
(9) Attempt by the respondent against the
(1) When the spouse has been convicted of an attempt against life of the petitioner; or
the life of the testator, his or her descendants, or ascendants;
(10) Abandonment of petitioner by
(2) When the spouse has accused the testator of a crime for respondent without justifiable cause for
which the law prescribes imprisonment of six years or more, more than one year.
and the accusation has been found to be false;
For purposes of this Article, the term "child"
(3) When the spouse by fraud, violence, intimidation, or undue shall include a child by nature or by
influence cause the testator to make a will or to change one adoption. (9a)
already made;
o Meaning, when the disinherited spouse has
 Same. committed any of the acts mentioned in art.
55 of the FC.
(4) When the spouse has given cause for legal separation; o Lesbianism or homosexuality, so that is
actually a ground for a spouse to disinherit
the other.
 Can you find here a ground which says that a spouse
o Also, if you notice, in art 920 and 919, in 920
who is a homosexual can be disinherited? NO. (4), that’s a ground to disinherit a parent or
 But the law says, when the spouse has given cause
ascendant and also in 919 (3).
for legal separation. What are the grounds? o But there is nothing in 921 which provides
o Article 55 of the Family Code: that a spouse is guilty of adultery or
concubinage with the child or the parent of
Art. 55. A petition for legal separation may the testator. Asa mana sya magfall? Again, it
be filed on any of the following grounds: will fall under a cause for legal separation.
Sexual infidelity or perversion is a ground for
(1) Repeated physical violence or grossly legal separation.
abusive conduct directed against the o Would you consider having an affair with the
petitioner, a common child, or a child of the parent of a testator or the child of the
petitioner; testator, perversion or sexual infidelity? I
think majority of us will say. Even if not the
parent, bisag silingan, it is still a ground to
(2) Physical violence or moral pressure to
disinherit because it is infidelity or
compel the petitioner to change religious or
perversion.
political affiliation;
o Take note, there is no need for conviction
because the cause can be proved by mere
(3) Attempt of respondent to corrupt or preponderance of evidence.
induce the petitioner, a common child, or a o #9 of Art 55: if the spouse who was
child of the petitioner, to engage in disinherited attempted against the life of the
prostitution, or connivance in such testator. Now, there is no mention of
corruption or inducement; conviction. But in 921 (1), it seems na naa
napud conflict.
(4) Final judgment sentencing the
respondent to imprisonment of more than
(5) When the spouse has given grounds for the loss of Article 923. The children and descendants of the person
parental authority; disinherited shall take his or her place and shall preserve the
rights of compulsory heirs with respect to the legitime; but the
 Same. disinherited parent shall not have the usufruct or
administration of the property which constitutes the legitime.
(857)
(6) Unjustifiable refusal to support the children or the other
spouse. (756, 855, 674a)
Remember, a disinherited child can be represented.
Because if the parent, he cannot be represented.
 Same.
For example, the testator has a child X, si X naay anak si Y. If

Article 922. A subsequent reconciliation between the offender
X committed an act which constitutes as a ground for
and the offended person deprives the latter of the right to
disinheritance and he was validly disinherited by B. X is already
disinherit, and renders ineffectual any disinheritance that may
excluded. But kung si X naay anak na si Y, ang share ni X
have been made. (856)
maato kay Y. he can be represented by his child.
A subsequent reconciliation between the offender and the But take note, he shall have not usufruct or administration
offended person, for example, the child maltreated the parent,
over the property received by his child. This would matter,
that is a ground to disinherit the child, but even before the diba under the family code, the parents are the legal guardians
parent made a will, he already reconciled with the child.
of their minor children. Halimbawa ang child, naay properties,
ang parent naay administration sa property sa minor children,
Can he still disinherit the child? No more. The reconciliation although.
already deprives the parent of the right to disinherit the
offender, child.
For example, since na disinherit na man si X, niadto na ang
property kay Y, tapos minor pa man sya, kinsa mag
Even if there was already a disinheritance made in the will, administer? Dili pwede si X because he is disqualified by law.
because the child maltreated the parent, the latter disinherited nadawat ni ni Y nga property because X was disinherited.
the former. After the execution of the will, there was Kinsa karon? There has to be a legal guardian appointed by
reconciliation, between the parent and the child, what the court.
happened to the disinheritance mentioned in the will? It
becomes ineffectual.
-end-
For example, si testator he made a will, disinheriting his child

who maltreated him. And they reconciled already. Pero, wala
na kabuhat ug lain pa na will si parent. So he died, leaving that
will with a disinheritance of the child. So again, the child can
deny the ground. He can dispute the ground. The
reconciliation would render ineffective the disinheritance made
in the will.
Daghan kag grounds,namely:
(1) Ang cause ba mentioned sa law

(2) Ang cause ba existing gyud
(3) Tinuod ba sya
(4) Valid ba ang will kung asa gibuhat ang disinheritance
(5) Or basig tinuod jud pero nagreconcile na silang duha,
so the disinheritance can no longer be given effect.
The question is: what is reconciliation? How do we know

whether or not there was already reconciliation? When the
relationship prior to the event causing the disinheritance has
already been resumed, there is already reconciliation. Mutual
resumption of feelings of their relationship. Mere pardon does
not erase the ground for disinheritance. Mere pardon is
different from reconciliation. Pardon, only one. Reconciliation,
both of them.
September 22 – RAN If only one heir or legatee or devisee is given an obligation to

fulfill a legacy or devise pwede siyang (inaudible) but if there
SECTION 7 are many of them - they are all charged, they share the
Legacies and Devises burden in accordance with their respective shares.
Article 927. If two or more heirs take possession of the

Article 924. All things and rights which are within the estate, they shall be solidarily liable for the loss or destruction
commerce of man be bequeathed or devised. (865a) of a thing devised or bequeathed, even though only one of
them should have been negligent. (n)
What can be the subject of a legacy or devise? We have ART
924. This is one example given by law where solidarity is imposed.
If you remember in your ObliCon, if 2 or more debtors concur
We discussed before what can be the subject of inheritance
in one and the same obligation – GR: their obligation is merely
dba? We have properties, rights and obligations. In Art 924,
joint, XP: 1 – when the law provides or the obligation is
there is no mention at all of obligations. We only have things
expressly so provides.
and rights. Why? Because we have to distinguish again
inheritance from a legacy or devise. When you say inheritance, Article 928. The heir who is bound to deliver the legacy or
the heir succeeds to the universality of the properties, rights devise shall be liable in case of eviction, if the thing is
and obligations. He is not designated to a specific property but indeterminate and is indicated only by its kind. (860)
to the entirety/ aliquot/ ideal/ spiritual share of the estate. But
as to legacies and devises, limited only to things and rights
because they are limited only to specific properties. Example: We are talking here of a legacy or devise which is
indeterminate meaning the testator in his will said (a case of
Those things and rights which can be transmitted by
sub-legacy or sub-devise) “heir has been given an inheritance
succession re the same things and rights which can be
but the heir is charged with the obligation to deliver a car to X”
bequeathed or devised. That also carries with it our discussion
but the testator only mentioned a car - he did not specify. So
on the organs of the human body.
in this case, the right to choose which car to deliver belongs to
the heir who has been charged with the obligation to deliver
Article 925. A testator may charge with legacies and devises
the legacy. Now if there are several cars in the estate and he
not only his compulsory heirs but also the legatees and
delivered car #1 and it turned out that car #1 has problems so
devisees.
the legatee A was ultimately deprived of that car – there is
now a warranty against eviction. Meaning, the heir who chose
The latter shall be liable for the charge only to the extent of that car has to replace it with another car because in the first
the value of the legacy or the devise received by them. The place why did he choose that car. It only applies if the
compulsory heirs shall not be liable for the charge beyond the legacy or devise is INDETERMINATE.
amount of the free portion given them. (858a)
Article 929. If the testator, heir, or legatee owns only a part
of, or an interest in the thing bequeathed, the legacy or devise
CONCEPT OF A SUB LEGACY or SUB DEVISE – it may be a shall be understood limited to such part or interest, unless the
legacy within a legacy, a legacy within a devise, a devise testator expressly declares that he gives the thing in its
within a devise or a devise with a legacy. Who can be entirety. (864a)
charged? It may be a compulsory heir, a legatee or devisee.
Example: You are giving to A – specific parcel of land and out Now remember this is the GR when it comes to ownership of
of the proceeds of the land he would have to deliver 100 sacks the property, devise or bequeath – the testator cannot devise
of rice to X. So that is a legacy to X and a devise to A. The or bequeath something the he does not own.
compulsory heir may also be charged with a legacy or devise
but just remember insofar as compulsory heirs are concerned 1st situation – the testator devised or bequeathed something
the charge is only up to the free portion not including the which he only owns in part or part-owner. There is a 10
legitime because as we have discussed already we cannot hectare land in Calinan, DC covered by a certain title and then
charge any condition, charge, burden, substitution upon the the testator only owns ¼ of that land. Even if he devised that
legitime. land, it is understood that it is only his share in that land that
has been bequeathed or devised.
Article 926. When the testator charges one of the heirs with
a legacy or devise, he alone shall be bound. UNLESS the law says that the testator expressly declares that
he gives the thing in its entirety. How? The estate has the
Should he not charge anyone in particular, all shall be liable in obligation to acquire the other portions, ¾, from the other
the same proportion in which they may inherit. (859) owners so the entire land can be given to the devisee. What if
the other owners refused to part with their shares or demand
an excessive price for their shares? The estate will have the
obligation to give only the just value of the thing to the legatee estate must acquire it and give the same to the legatee or
or devisee. devisee; but if the owner of the thing refuses to alienate the
same, or demands an excessive price therefor, the heir or the
Article 930. The legacy or devise of a thing belonging to estate shall only be obliged to give the just value of the thing.
another person is void, if the testator erroneously believed that (861a)
the thing pertained to him. But if the thing bequeathed,
though not belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the disposition shall We are talking here of a property which is not owned by the
take effect. (862a) testator but he knew that he did not own the thing or a thing
which is not fully owned by the testator but he wants the thing
to be given in its entirety. So again, just give the just value of
The 1st situation – the legacy or devise of a thing which is not the thing if the owner refuses to alienate or demands an
owned by the testator. Effect? VOID. If the testator thought excessive price.
that the thing was owned by him but in reality it was not
owned by him, so the devise is void. Article 932. The legacy or devise of a thing which at the time
of the execution of the will already belonged to the legatee or
The law says “if the testator erroneously believed that the devisee shall be ineffective, even though another person may
thing pertained to him”, how about kung wala siya nagtuo na have some interest therein.
iyaha? Kabalo jud siya na dili iyaha pero iyaha gihapon gihatag
kay devisee? Is the devise valid? YES. It would be valid and If the testator expressly orders that the thing be freed from
governed by ART 931. There would be an implied directive
such interest or encumbrance, the legacy or devise shall be
upon the estate to acquire the thing so that it can be given to valid to that extent. (866a)
the devisee or legatee. Again if the owner of the thing refuses
to part with it or demands an excessive price then, the estate
would have to give the just value of the thing. The thing bequeathed or devised is already owned by the
legatee or devisee at the time when the testator made the will.
Nganong lahi man ang consequence if the testator erroneously
Effect? It is VOID. It is absurd to give a thing to somebody
believed that the thing was owned by him and then when he
who already owns it. Even if another person may have some
knew that the thing was not owned by him? One is valid and
interest in the thing.
one is void. WHY? Because if he already knew that he did not
own the thing but still he gave the thing as a legacy or devise, Example: A is the owner of the car. The testator bequeathed
we are certain that it is really the wish of the testator to give to A the car. The car was mortgaged by A. Despite the fact
the thing to the legatee or devisee. Now in the 1st situation if that the thing is encumbered still the legacy or devise is void
the testator just erroneously believed that thing pertained to but if the testator declares in the will that the thing shall be
him and later on we discovered upon the distribution of the freed from the mortgage still the legacy or devise is void. But
property that it was not the testator who owned the thing – we as to freeing the thing from the mortgage, the estate has the
cannot presume that had the testator known at that time when obligation to fulfill that.
he made the will that he was not the owner, that he would still
give the thing. We cannot make that presumption and we Point in time to remember here is who owns the thing at
cannot the testator because patay na siya. To be safe, DILI. the time of the execution of the will.
In the 2nd sentence, for example the testator erroneously Article 933. If the thing bequeathed belonged to the legatee
believed that the thing pertained to him but subsequently he or devisee at the time of the execution of the will, the legacy
acquired the thing by whatever title but when he made the will or devise shall be without effect, even though it may have
he did not own the thing, devise or bequeath. What is the subsequently alienated by him.
effect of his subsequent acquisition? The disposition shall
take effect. So valid na siya. This is the 3rd exception to the
rule on after-acquired properties under ART 793. GR – the If the legatee or devisee acquires it gratuitously after such
devise or legacy only covers properties existing at the time of time, he can claim nothing by virtue of the legacy or devise;
the execution of the will. If after the execution of the will, but if it has been acquired by onerous title he can demand
there are additions or inclusions to that property then those reimbursement from the heir or the estate. (878a)
additions or inclusions are not included in the devise or legacy.
1st XP – when the testator expressly so declares in the will. In the 1st par – at the time of the execution of the will, the
legatee or the devisee was already the owner of thing
2nd XP – as an effect of the execution of a codicil which bequeathed or devised. So it is void. Even if subsequently the
republishes a will. legatee or devisee already alienated the thing such that upon
the death of the testator the legatee or devisee was no longer
Article 931. If the testator orders that a thing belonging to the owner of the thing still void. What matters is at the time of
another be acquired in order that it be given to a legatee or the execution of the will, the legatee or devisee owned the
devisee, the heir upon whom the obligation is imposed or the thing.
In the 2nd par – it presupposes the situation when at the time assigning to the legatee all rights of action it may have against
of the execution of the will, the thing was not owned by the the debtor. In the second case, by giving the legatee an
legatee or devisee. Valid. What if after the time of the acquittance, should he request one.
execution of the will the legatee or devisee acquired the thing?
What is the consequence? If the legatee or devisee acquired In both cases, the legacy shall comprise all interests on the
the thing by gratuitous title, he can no longer claim from the credit or debt which may be due the testator at the time of his
estate at the time of the testator’s death. Why? Because that is death. (870a)
the very essence of the legacy or devise - for the legatee or
devisee to acquire the thing gratuitously and he already got it
gratuitously. So what more can he ask from the estate? LEGACY OF CREDIT/ LEGACY OF REMISSION
Nothing. But if he acquired by onerous title, meaning he paid a
consideration to acquire the thing, the estate will have to LEGACY OF CREDIT – for example the testator is the creditor
reimburse the legatee or devisee. Why? Because the intention of X (1 million), then the testator made a will stating that
of the legacy or devise is to give the thing freely or whatever receivables he has from X at the time of his death, Y
gratuitously to the legatee or devisee. can collect those receivables.
Article 934. If the testator should bequeath or devise Another is X owes the testator (1 million) and in his will the
something pledged or mortgaged to secure a recoverable debt testator said that whatever debt X has upon my death those
before the execution of the will, the estate is obliged to pay debts are already considered remitted. That is a LEGACY OF
the debt, unless the contrary intention appears. REMISSION. The law says “it shall be effective only as
regards that part of the credit or debt existing at the time of
The same rule applies when the thing is pledged or mortgaged the death of the testator”
after the execution of the will.
Legacy of Credit – this is another XP to the rule on after-
acquired properties under ART 793, it is not the value at the
Any other charge, perpetual or temporary, with which the
execution of the will but the value at the time of death.
thing bequeathed is burdened, passes with it to the legatee or
devisee. (867a)
Assuming, instead of paying, X borrowed 1million from the
testator then, the testator made a will giving to Y the
receivables. Later on, after the execution of the will, X
The thing here is owned by the testator or it may apply to the
borrowed again 200k such that at the time of the testator’s
situation where it is not owned by the testator but he knew
death the debt of X is 1.2M. How much is the legacy of credit?
that he did not own the thing and he wants to give the
1M. The additional 200K is not included because that is
property. The problem here is that the property whether
covered under the rule on after-acquired properties (ART 793).
before or after the execution of the will is pledged or
mortgaged. Same as the legacy of remission. Kung ano lang yung utang
niya at the time of the execution, yun lang ang covered by the
Assuming the testator has a land and the land was mortgaged
legacy of remission. He would still have to pay the estate the
by him. He devised the land to D. Upon the death of the
additional debt(s).
testator, D can demand for the delivery of the land to him as a
devise. Aside from that the estate has the obligation to pay off
Article 936. The legacy referred to in the preceding article
the mortgage/ debt so that the land can be free from the
shall lapse if the testator, after having made it, should bring an
mortgage. The legatee or devisee will not assume the debt.
action against the debtor for the payment of his debt, even if
such payment should not have been effected at the time of his
Take note the law says “to secure a recoverable debt” because
death.
a property can still be burdened even if it is not given as a
collateral. For example, property bond – what if the property
devised to D has been constituted as a property bond? Then The legacy to the debtor of the thing pledged by him is
the testator died. Of course ownership over the land will pass understood to discharge only the right of pledge. (871)
to D – devisee. Does the estate have the obligation to free the
land from the burden of the bond? NO. The law says “Any
other charge, perpetual or temporary, with which the thing Even if the testator made a legacy of credit or a legacy of
bequeathed is burdened, passes with it to the legatee or remission, so he said that X whatever receivables I have from
devisee” you those are considered remitted. After he made the will, the
testator filed a case against X for collection. What is the effect
Article 935. The legacy of a credit against a third person or of that action? If wala pa nahuman ang kaso after the death of
of the remission or release of a debt of the legatee shall be the testator so remitted gihapon? NO! The debt according to
effective only as regards that part of the credit or debt existing ART 936, the legacy shall lapse meaning it becomes
at the time of the death of the testator. ineffective. It is actually an example of a revocation by
operation of law. Even if the testator did not expressly state
that he is revoking the legacy but by his action of filing a case
In the first case, the estate shall comply with the legacy by
against the legatee that is equivalent to revocation. The law more than the amount thereof is ordered paid, the excess is
says “should bring an action” it presupposes a judicial action. not due, unless a contrary intention appears.
2nd par – legacy to the debtor of the thing pledged by him.

The foregoing provisions are without prejudice to the
Here the thing bequeathed is owned by the legatee, it is void, fulfillment of natural obligations. (n)
but the thing is pledged by the legatee to the testator.
Example: A borrowed 1million from the testator and as a

1st par – there is an order on the part of the testator to pay
security for that obligation – A pledged to the testator his
what he owes but in truth and in fact he does not owe, he just
jewelry around that value also. In pledge, it is essential that
thought that he owes an amount, so the disposition shall be
the thing pledged should be delivered to the pledgee. Although
considered as not written. If the testator also provides for the
the possession of the jewelry is with the testator but the owner
payment of a certain amount which he thought was the
of the jewelry is still A. Now the testator made a will giving the
amount due but in excess in reality, the estate can demand as
jewelry to A, is that legacy valid? IT IS NOT VALID because
to the excess. You apply the PRINCIPLE OF SOLUTION
the jewelry is owned by A – the legatee.
INDEBITI.
Is there any significance of the act of the testator in executing
2nd par – It is without prejudice to the fulfillment of natural
a legacy in favor of A? By that execution and supposing that
obligations. Example: The testator knew that his debt had
the testator died already, the effect of that is to extinguish the
already prescribed but he ordered in his will the payment of
pledge. The estate of the testator will have to return the
the debt. If it paid then the estate cannot anymore recover
jewelry to A. Although A still has a debt and must pay the
what was voluntarily given or paid. Law on Natural Obligations
obligation but the pledge (security) is extinguished.
shall be applied.
Discharge(d) the right of pledge.
Article 940. In alternative legacies or devises, the choice is
Article 937. A generic legacy of release or remission of debts
presumed to be left to the heir upon whom the obligation to
comprises those existing at the time of the execution of the
give the legacy or devise may be imposed, or the executor or
will, but not subsequent ones. (872)
administrator of the estate if no particular heir is so obliged.
If it is a legacy of remission, the testator did not specify which If the heir, legatee or devisee, who may have been given the
particular debts are being remitted so only those debts existing choice, dies before making it, this right shall pass to the
at the time of execution of the will are remitted. If there are respective heirs.
payments afterwards of course those payments will have to be
deducted. But if there are additional debts contracted after the Once made, the choice is irrevocable.
execution of the will, those additional debts are not included in
the debts remitted. In the alternative legacies or devises, except as herein
provided, the provisions of this Code regulating obligations of
Article 938. A legacy or devise made to a creditor shall not be the same kind shall be observed, save such modifications as
applied to his credit, unless the testator so expressly declares. may appear from the intention expressed by the testator.
(874a)
In the latter case, the creditor shall have the right to collect CONCEPT OF ALTERNATIVE LEGACIES OR DEVISES
the excess, if any, of the credit or of the legacy or devise.
(837a) Either a car or a jewelry. Just like in alternative obligations,
there are several prestations due but the delivery of one is
sufficient to extinguish the entire obligation.
It is the testator who is the debtor and there is another person
who is the creditor. If the testator gives a legacy or devise to Who has the right of choice? It says if there is a person
the creditor and without mentioning that it is to be applied to mentioned (an heir, legatee or devisee) who has been given
his debt, it is considered to be over and above the payment of the right of choice then that one can make the choice. If none
the debt. The creditor can still collect what is due to the then the executor or administrator of the estate. But if a
testator and he can also claim the legacy or devise unless the particular heir, legatee or devisee who has been given the
testator provides that i-offset na sa iyahang utang but it still right of choice and he died before making the choice, then his
requires the consent of the creditor. Apply dation in payment heir shall make the choice.
or dacion en pago when what is due is cash and you pay in
kind – there must be consent from the creditor. Kung kulang Remember: The choice is irrevocable when made. Then it
pa rin, the creditor can collect the remaining balance. becomes a simple obligation to deliver.
Article 939. If the testator orders the payment of what he Article 941. A legacy of generic personal property shall be
believes he owes but does not in fact owe, the disposition shall valid even if there be no things of the same kind in the estate.
be considered as not written. If as regards a specified debt
A devise of indeterminate real property shall be valid only if If these are the legacies given, for how long should these
there be immovable property of its kind in the estate. legacies last?
For education, until the legatee if of age - 18. If it not yet

The right of choice shall belong to the executor or
administrator who shall comply with the legacy by the delivery finished or he pursues a higher degree, law says even beyond
the age of majority, provided he pursues his course diligently.
of a thing which is neither of inferior nor of superior quality.
(875a)
Legacy for support - during the lifetime of the legatee unless,
the testator provides otherwise.
Remember that what has been given here is an indeterminate
or generic thing. It may be a real property or a personal How do we measure the amount of legacy to be given?
property. If it is a personal property for example “Legacy of car In accordance with the social standing and circumstances of
to A”, what if there is no car? Is that legacy valid? Yes. It is the legatee and the value of the estate.
still valid.
Article 945. If a periodical pension, or a certain annual,
I am giving to A a land. So devise of a land to A but there is no monthly, or weekly amount is bequeathed, the legatee
land in the estate. Is that devise valid? It is not valid because may petition the court for the first installment upon the
there is no land in the estate and it would be difficult for the death of the testator, and for the following ones which
estate to get a land just to comply with the devise given to A. shall be due at the beginning of each period; such
But remember here na we are talking of a devise of real payment shall not be returned, even though the
property which is not specified, generic, indeterminate and legatee should die before the expiration of the period
there is nothing of that kind in the estate. which has commenced. (880a)
But if the testator says I hereby give to A the land covered by When shall the legacy be due?
a particular title or certain title, that land assuming does not
belong to the estate and there is no land in the estate. The Periodical, annual, monthly or weekly - upon the death of the
testator also knew that he has no land. Is that devise valid? testator
YES. Go back to what we discuss before. The estate has to
acquire the land and if the owner refuses or demands Article 946. If the thing bequeathed should be subject
excessive price then, give the just value. to a usufruct, the legatee or devisee shall respect such
right until it is legally extinguished. (868a)
Article 942. Whenever the testator expressly leaves the right
of choice to the heir, or to the legatee or devisee, the former It is subject to a usufruct. This is related to 934.
may give or the latter may choose whichever he may prefer.
(876a) Article 934. If the testator should bequeath or devise
something pledged or mortgaged to secure a
recoverable debt before the execution of the will, the
Whoever has the right to choose, he can choose which he may
estate is obliged to pay the debt, unless the contrary
prefer.
intention appears.
Article 944. A legacy for education lasts until the The same rule applies when the thing is pledged or
legatee is of age, or beyond the age of majority in mortgaged after the execution of the will.
order that the legatee may finish some professional,
vocational or general course, provided he pursues his
course diligently. Any other charge, perpetual or temporary, with which
the thing bequeathed is burdened, passes with it to the
legatee or devisee. (867a)
A legacy for support lasts during the lifetime of the
legatee, if the testator has not otherwise provided.
Unless the thing is pledged or mortgaged to secure a
recoverable debt, that burden passes to the legatee or
If the testator has not fixed the amount of such
devisee. If it is a usufruct, it shall be respected. GR: Death of
legacies, it shall be fixed in accordance with the social
either party in a usufruct extinguishes the usufruct unless
standing and the circumstances of the legatee and the
otherwise provided. This will not apply if it is provided that the
value of the estate.
usufruct will still exist even after the death of either party.
Otherwise, it will be extinguished.
If the testator or during his lifetime used to give the
legatee a certain sum of money or other things by way
of support, the same amount shall be deemed Article 947. The legatee or devisee acquires a right to
bequeathed, unless it be markedly disproportionate to the pure and simple legacies or devises from the death
the value of the estate. (879a) of the testator, and transmits it to his heirs. (881a)
Pure or Simple legacy - It is not subject to any condition, (3) Legacies for support;
obligation. As soon as the testator, legatee or devisee already
acquires a right to the legacy. (4) Legacies for education;
If it is an alternative legacy for example, the right of choice
is given to the heir who has the obligation to deliver, unless (5) Legacies or devises of a specific, determinate thing which
the choice has been made, the legatee or devisee cannot yet forms a part of the estate;
demand.
(6) All others pro rata. (887a)
Article 948. If the legacy or devise is of a specific and
determinate thing pertaining to the testator, the (Illustrates on the board)
legatee or devisee acquires the ownership thereof upon
the death of the testator, as well as any growing fruits, We have a case where the estate is not sufficient to cover all
or unborn offspring of animals, or uncollected income; the legacies or devises. We have a rule to follow, in the order
but not the income which was due and unpaid before of priority.
the latter's death.
Remember the acronym RPSESA?
From the moment of the testator's death, the thing
bequeathed shall be at the risk of the legatee or Assuming the value of the free portion is 400,000.
devisee, who shall, therefore, bear its loss or
deterioration, and shall be benefited by its increase or Remuneratory 100,000
improvement, without prejudice to the responsibility of
the executor or administrator. (882a) No specific category 20,000
The devise or the legacy is of a specific and determinate thing. Another is 30,000
Uncollected rents, growing fruits, unborn offspring which
accrue upon the death of the testator will pertain to legatee or Support 50,000
devisee. Those that accrued before the death of the testator,
the estate. Also the risk of loss or deterioration because he is Education 150,000
already the owner of the thing. Based on the principle of res
perit domino, the owner bears the risk of loss. Specific property 200,000
As for the indeterminate or generic things, you cannot demand Remuneratory legacy 70,000
for the rents etc even if it accrued after the death of the
testator. That is the difference. We first satisfy the remuneratory legacies, those given to
remunerate certain acts made by the legatee or devisee.
100,000 + 70,000 = 170,000. 300,000 - 170,000 = 230,000. If
Article 949. If the bequest should not be of a specific
kani sila duha pa lang, kulang na, pro-rate nato sila.
and determinate thing, but is generic or of quantity, its
fruits and interests from the time of the death of the
Next in order is preferential, those declared by the testator to
testator shall pertain to the legatee or devisee if the
be preferred or prioritized. None.
testator has expressly so ordered. (884a)
Then, support. We do not include education in the definition of
This is related 948.
support because it has another category, which is fourth in
the order of priority. We have 50,000. 180,000
As for indeterminate or generic, those which accrue upon the
death of the testator will go only to the legatee or devisee if it Then education, 150,000. 30,000 na lang.
is expressed by the testator. That is the only instance.
Specific legacy. Sa 200,000 pa lang kulang na so 30,000 na
lang ang mahatag sa iyaha.
Article 950. If the estate should not be sufficient to cover all Katong uban, wala na to labot. Pero halimbawa kung naa pa,
the legacies or devises, their payment shall be made in the iratio and proportion. For example, the 20,000 and 30,000. 2/5
following order: and 3/5 of the amount na mabilin.
(1) Remuneratory legacies or devises; Article 911. After the legitime has been determined in
accordance with the three preceding articles, the
reduction shall be made as follows:
(2) Legacies or devises declared by the testator to be
preferential;
(1) Donations shall be respected as long as the legitime The expenses necessary for the delivery of the thing
can be covered, reducing or annulling, if necessary, the bequeathed shall be for the account of the heir or the
devises or legacies made in the will; estate, but without prejudice to the legitime. (886a)
(2) The reduction of the devises or legacies shall be pro As much as possible, the very thing bequeathed or devised
rata, without any distinction whatever. should be the very same thing given to the legatee or devisee.
If cash then cash. If without cash, you may sell property from
If the testator has directed that a certain devise or the estate to generate cash. If land then land. If car then car.
legacy be paid in preference to others, it shall not
suffer any reduction until the latter have been applied Article 953. The legatee or devisee cannot take
in full to the payment of the legitime. possession of the thing bequeathed upon his own
authority, but shall request its delivery and possession
of the heir charged with the legacy or devise, or of the
(3) If the devise or legacy consists of a usufruct or life
executor or administrator of the estate should he be
annuity, whose value may be considered greater than
authorized by the court to deliver it. (885a)
that of the disposable portion, the compulsory heirs
may choose between complying with the testamentary
Even if you are named as a legatee or devisee, you cannot just
provision and delivering to the devisee or legatee the
go to the property and take the same. You should request for
part of the inheritance of which the testator could
the delivery from the heir charged or legatee or devisee
freely dispose. (820a)
charged, executor or administrator.
Also the free portion is not enough to satisfy all donations,

Article 954. The legatee or devisee cannot accept a part
legacies and devises. Kung naay donations inter vivos, unahon
of the legacy or devise and repudiate the other, if the
ang donations over legacies and devises. But if there are two
latter be onerous.
or more donations, earlier donations are preferred over the
later ones. Kung human na ang mga donations and there are
legacies declared by the testator to be preferred, then all Should he die before having accepted the legacy or
others pro rata. devise, leaving several heirs, some of the latter may
accept and the others may repudiate the share
How do we know when to apply 911 and 950? 911 will apply respectively belonging to them in the legacy or devise.
even if there is REPSESA. Sa 911, preferred legacies then all (889a)
others pro rata. If 950, remuneratory legacies then preferred
legacies. Legacy or devise is partly onerous, partly gratuitious. You
cannot only accept the gratuitous then reject the onerous. You
have to accept everything.
We only apply 911 if there are compulsory heirs AND there are
donations inter vivos. If there are no compulsory heirs, there is
no need to collate donations. Otherwise, we apply 950, if the There is no prohibition to accept the onerous and reject the
free portion is not sufficient. gratuitous part.
Article 951. The thing bequeathed shall be delivered with all If one of the heirs had not accepted and there are several
its accessories and accessories and in the condition in which it heirs, the other heirs may accept of repudiate their respective
may be upon the death of the testator. (883a) shares.
Article 955. The legatee or devisee of two legacies or

devises, one of which is onerous, cannot renounce the
All the accessions and the accesories, they are already part of onerous one and accept the other. If both are onerous
the thing, so they shall be delivered in the condition upon the or gratuitous, he shall be free to accept or renounce
death of the testator, because that is when the right to the both, or to renounce either. But if the testator intended
thing and to the accession and accessories accrued. that the two legacies or devises should be inseparable
from each other, the legatee or devisee must either
Article 952. The heir, charged with a legacy or devise, accept or renounce both.
or the executor or administrator of the estate, must
deliver the very thing bequeathed if he is able to do so Any compulsory heir who is at the same time a legatee
and cannot discharge this obligation by paying its or devisee may waive the inheritance and accept the
value. legacy or devise, or renounce the latter and accept the
former, or waive or accept both. (890a)
Legacies of money must be paid in cash, even though There are 2 or more legacies or devises. One is onerous, the
the heir or the estate may not have any. other is gratuitous. Same rule, the legatee or devisee cannot
just accept the gratuitous then reject the onerous. But there is This is an example of a revocation provided for by law because
no prohibition if he wants to accept the onerous and reject the the testator may not have the intention to revoke the legacy or
gratuitous. devise or to render it ineffective, but the law deems it to be
ineffective. The presumption of law prevails over the intention
If both legacies are gratuitous, he can accept one then of the testator.
repudiate the other. If both are onerous, he can accept one or
repudiate the other. But if the testator intended the two 1) Transformation of the thing.
legacies to be inseparable, he can just accept both or reject
both. The testator bequeathed to A a bracelet. After the execution of
the will, the testator had the bracelet melted and transformed
If it is a compulsory heir, he may waive the inheritance and the bracelet into a set of necklace and a ring. The legacy of
accept the legacy or devise or renounce the latter and accept bracelet is no longer effective because the form and the
the former or waive both. denomination given to the thing has already been changed.
Article 956. If the legatee or devisee cannot or is If devise of a swimming pool is later on made into a fishpond,
unwilling to accept the legacy or devise, or if the legacy there is revocation.
or devise for any reason should become ineffective, it
shall be merged into the mass of the estate, except in 2) Alienation by any title or for any cause
cases of substitution and of the right of accretion.
(888a) The testator devised to B a specific parcel of land. After the
execution of the will, the testator sold the very same land to S.
What happens if the legatee or devisee does not want to The devise is now ineffective. Upon the death of the testator,
accept the legacy or devise? In the order of priority, we he cannot claim anything by way of the devise.
observe the following: (1) If there is an institution of heirs or
But if the sale is later declared to be null and void, upon the
designation of a legatee or devise, the give to the instituted
death of the testator, the very same land is returned to the
heir or designated legatee or devisee; (2) If he is unwilling,
estate of the decedent. B can still not get the land because the
determine if there is a substitute. If these is, then give the
devise remains to be ineffective.
property to the substitute; (3) If there is no substitute and the
right to representation is proper, give to the representative;
If the testator had no intention to revoke the devise as he just
(4) If it is not proper, determine if accretion is proper; (5) If
needed money that time, the presumption of law prevails.
accretion is not proper, the last is intestacy. The last resort is
legal succession. What can the testator now do? He can re-execute a will or
designate the sale as sale with right of repurchase. If the
Article 957. The legacy or devise shall be without testator is able to repurchase it and the property is returned to
effect: his estate, the devise is still valid. By reserving the right to
repurchase the property, the law sees the intention of the
(1) If the testator transforms the thing bequeathed in testator to really honor the legacy or devise.
such a manner that it does not retain either the form or
the denomination it had; The alienation made by the testator after he made the will
must be with a right to repurchase or pacto de retro sale. If it
is just a deed of absolute sale and the later on testator wins
(2) If the testator by any title or for any cause the lotto and he convinces B to sell to him again the land and
alienates the thing bequeathed or any part thereof, it B agreed. The alienation still revoked the legacy because it
being understood that in the latter case the legacy or was not by virtue of a right to repurchase.
devise shall be without effect only with respect to the
part thus alienated. If after the alienation the thing What if the testator devised the land, and sold the land to B
should again belong to the testator, even if it be by and the sale was later annulled because of vitiated consent? B
reason of nullity of the contract, the legacy or devise can claim the land as his devise because the alienation made
shall not thereafter be valid, unless the reacquisition by the testator was not voluntary. In all cases of involuntary
shall have been effected by virtue of the exercise of the sales, this article will not apply.
right of repurchase;
3) If the thing bequeathed is totally lost during the
(3) If the thing bequeathed is totally lost during the lifetime of the testator or after his death, without the
lifetime of the testator, or after his death without the fault of the heir.
heir's fault. Nevertheless, the person obliged to pay the
legacy or devise shall be liable for eviction if the thing When we say loss, we follow the definition of loss - when the
bequeathed should not have been determinate as to its thing perishes, goes out of commerce or disappears in such a
kind, in accordance with the provisions of article 928. way that its existence can no longer be recovered.
(869a)
Loss covers eviction. If the legacy or devise is not of a
determinate thing, meaning generic thing or indeterminate Here, the survivors are brothers and sisters, together with the
thing, there is liability for eviction. But if it is specific legacy, no nephews and nieces. If the B and S survive, they are the only
liability for eviction. The heir dispossessed cannot claim a heirs. They exclude the others.
legacy from the estate.
But if there are B and S who are deceased, and they have their
own children, their children, the NP and NC of the decedent,
Article 958. A mistake as to the name of the thing can inherit with his (decedent) B and S.
bequeathed or devised, is of no consequence, if it is
possible to identify the thing which the testator We already illustrated before how to compute per stirpes and
intended to bequeath or devise. (n) per capita.
Mistake as to the name, it does not matter. As long as the Representative is only entitled to the share vacated by the
thing can be identified, it will not invalidate a legacy or devise. person represented. They cannot inherit more than what the
person represented inherited.
Article 959. A disposition made in general terms in
Article 1006. Should brother and sisters of the full
favor of the testator's relatives shall be understood to
blood survive together with brothers and sisters of
be in favor of those nearest in degree. (751)
the half blood, the former shall be entitled to a share
double that of the latter. (949)
This is testamentary succession. For example, testator devised
or bequeathed a parcel of land or property in favor of his
relatives, relatives referred to here as re the relatives nearest
So, some are half blood and the others are full blood. Those
in degree. The only rule we apply here is the rule on proximity.
who are in full blood inherit twice as much as the half blood.
We do not apply the rule on right of representation.
How to compute? This is the same as computation of the
October 9, 2014 (Thursday) :: SGM
legitimate and illegitimate children.
Article 1003. If there are no descendants, Remember, in legal succession, the full blood inherit twice as
ascendants, illegitimate children, or a surviving
much as the half blood. But in testamentary succession, if they
spouse, the collateral relatives shall succeed to the are instituted and no designation or sharing, they will inherit in
entire estate of the deceased in accordance with the
equal shares.
following articles. (946a)
Here, we have no descendants because the presence of the Article 1007. In case brothers and sisters of the half
descendants exclude the collateral relatives. blood, some on the father's and some on the
mother's side, are the only survivors, all shall inherit
Again, we have no ascendants because they exclude the in equal shares without distinction as to the origin of
collateral relatives.
the property. (950)
We have no illegitimate children because again they exclude
the collateral relatives.
Just read. There’s no distinction as to the origin of the
property.
But the surviving spouse actually concurs with the collateral
relatives. One half to the surviving spouse and one half to the
Article 1008. Children of brothers and sisters of the
collateral relatives.
half blood shall succeed per capita or per stirpes, in
If there are no survivors, it shall be given to the state. accordance with the rules laid down for brothers and
sisters of the full blood. (915)
Article 1004. Should the only survivors be brothers
and sisters of the full blood, they shall inherit in equal
shares. (947) Just read also.
Article 1009. Should there be neither brothers nor

sisters nor children of brothers or sisters, the other
Article 1005. Should brothers and sisters survive
collateral relatives shall succeed to the estate.
together with nephews and nieces, who are the
children of the descendant's brothers and sisters of
the full blood, the former shall inherit per capita, and The latter shall succeed without distinction of lines or
the latter per stirpes. (948) preference among them by reason of relationship by
the whole blood. (954a)
That is again, as long as they belong to the 5th degree of Would that be applicable today?
consanguity from the decedent. There is no issue as whether it
is in the ascending line or descending. But insofar as the The basis of that ruling is the NCC. Now under the CC, it has
collateral line, only up to the 5th degree. That’s Art. 1010. also been recognized, that an adopted child has the same
rights as the legitimate child.
We have the FC, also the adopted child has the same rights as
Article 1010. The right to inherit ab intestato shall the legitimate child.
not extend beyond the fifth degree of relationship in
the collateral line. (955a) Under the Domestic Adoption act, in that same law, the
adopted child is also considered a legitimate child. The adopter
and the adopted have reciprocal successional rights.
Let us now go to the inheritance of an adopted child.
An adopted child is considered a legitimate child. There is no

distinction between the adopted and legitimate. They inherit in As of the present, what is the prevailing rule?
the same share as the legitimate child.
No clear pronouncement yet. But personally, the provisions of
We’ve already discussed WON an adopted child can represent the domestic adoption act did not repeal the provisions of the
the decedent. civil code because in all this laws, it has always been consistent
that the adopted child shall have the same rights as the
Insofar as the right of representation is concerned, the legitimate child.
adopted child cannot represent the decedent.
The case of del Rosario was based on the civil code. Also in
Why? In representative will inherit not from the person the domestic adoption act, there is no specific provision
represented but from the decedent himself, from whom the dealing with that situation.
person represented would have inherited.
So, we can still apply that ruling.
What if an adopted child concurs with the parents, legitimate
parents of the adopter, will the adopted child exclude the The relationship created by adoption is only between them,
legitimate parents of the adopter? walay apil ang parents ni adopter.
A: Actually, there is a specific provision of the NCC, under Art. SUBSECTION 6. The State
343 wherein the adopted child will be considered as an
acknowledged child. Ang iyang share, is that of an Article 1011. In default of persons entitled to
acknowledged child. If legal succession, ½ to the parents, ½ succeed in accordance with the provisions of the
to the adopted child. preceding Sections, the State shall inherit the whole
estate. (956a)
Article 343. If the adopter is survived by legitimate
parents or ascendants and by an adopted person, the
latter shall not have more successional rights than an Okay, so in the absence of relatives whether ascending or
acknowledged natural child. (n) descending, collateral up to the 5th degree, the decedent is
said to have died without heirs, thus the state inherits the
property. This is what we call the caduciary right of the
There’s also a case, del Rosario v. Cunanan wherein the state.
survivors are the adopted child, legitimate parent and the
surviving spouse. There is no direct provision under the civil The right of the state to succeed to the decedent who dies
code as to how to divide the estate if that is the case. intestate. The process by which the state by which the
acquires the properties, that is what we call escheat
The SC applied by analogy 343 wherein the adopted child shall proceedings.
be treated like an illegitimate child. Therefore, adopted child
shall not exclude the legitimate parents. Article 1012. In order that the State may take
possession of the property mentioned in the
The reason given by the SC is that the tie that binds the parent preceding article, the pertinent provisions of the Rules
and the adopter, blood relationship, whereas in adoption, it is of Court must be observed. (958a)
only by legal fiction, a relationship created by law. It would be
unfair, accdg to the SC, to give more priority to a relationship
created by law than to a relationship created by blood. Article 1013. After the payment of debts and
charges, the personal property shall be assigned to
the municipality or city where the deceased last
resided in the Philippines, and the real estate to the
municipalities or cities, respectively, in which the when two or more persons are called to the same
same is situated. inheritance, devise or legacy, the part assigned to the
one who renounces or cannot receive his share, or
If the deceased never resided in the Philippines, the who died before the testator, is added or incorporated
whole estate shall be assigned to the respective to that of his co-heirs, co-devisees, or co-legatees. (n)
municipalities or cities where the same is located.
Accretion, we discussed this in passing before right?

Such estate shall be for the benefit of public schools,
and public charitable institutions and centers, in such Definition:
municipalities or cities. The court shall distribute the
estate as the respective needs of each beneficiary when two or more persons are called to the same inheritance,
may warrant. devise or legacy, the part assigned to the one who renounces
or cannot receive his share, or who died before the testator, is
The court, at the instance of an interested party, or added or incorporated to that of his co-heirs, co-devisees, or
on its own motion, may order the establishment of a co-legatees
permanent trust, so that only the income from the
property shall be used. (956a)
Ex. A and B are devisees to a house. If B repudiated his share.

How shall the properties be distributed, Art. 1013 provides for What happens to the share of B?
the beneficiaries.
It shall go to A. the entire house will go to A.
Article 1014. If a person legally entitled to the
estate of the deceased appears and files a claim
thereto with the court within five years from the date
the property was delivered to the State, such person Requisites:
shall be entitled to the possession of the same, or if
Article 1016. In order that the right of accretion
sold, the municipality or city shall be accountable to
may take place in a testamentary succession, it shall
him for such part of the proceeds as may not have
be necessary:
been lawfully spent. (n)
(1) That two or more persons be called to

For example, the properties were already distributed, and a the same inheritance, or to the same portion
person appears claiming to be an heir of the decedent, the law thereof, pro indiviso; and
provides that he can claim 5 years from the date the
properties were delivered to the state. (2) That one of the persons thus called die
before the testator, or renounce the
Case in point: (I’ll just tell you the title later because I forgot) inheritance, or be incapacitated to receive it.
(928a)
Facts: there was a woman who was took care of the testatrix
during her lifetime, gi alagaan niya. Then the testatrix died,
she claimed that certain properties were donated to her by the First requisite: there should be unity of object. Meaning, only
testatrix but she could not find the deed of donation. Because one inheritance.
of that the estate proceeded by escheat proceedings. More
than 5 years after, nakita na niya ang deed of donation. She Second requisite: plurality of subjects. Meaning, 2 or more
filed an action to claim the subject of donations. persons are instituted as heirs to one inheritance.
SC: NO, she cannot claim. You have 5 years to claim. In that Then, there is a vacancy of one portion. What cause it?
case, it does not matter. You should file the action within 5
years, failure to do so, the action had prescribed.  Incapacity
 Renunciation
CHAPTER 4  Predecease
Provisions Common to Testate and Intestate
Successions Article 1017. The words "one-half for each" or "in
equal shares" or any others which, though
SECTION 1 designating an aliquot part, do not identify it by such
Right of Accretion description as shall make each heir the exclusive
owner of determinate property, shall not exclude the
Article 1015. Accretion is a right by virtue of which,
right of accretion.
In case of money or fungible goods, if the share of In Legal succession, the vacancies are:
each heir is not earmarked, there shall be a right of
 Repudiation (1018)
accretion. (983a)
 Incapacity
 Predecease cannot give rise to accretion. But it goes

As long as there is no earmarking, there is still unity of object.
to the other heirs in their own right, not by way of
Ex. A and B are devisees of the house. There is no mention of succession. Although the effects are the same.
any portion or designation of the heirs.
Note that when you say ¼ or ½, there is still no earmarking. Article 1019. The heirs to whom the portion goes by
the right of accretion take it in the same proportion
I hereby give to A the southern portion and B the northern that they inherit. (n)
portion.
Then in that case, no more accretion, there is already Ex. A and B are devisees to the house. If A repudiated, the
earmarking. It was already specified. share goes to B.
If decedent says, ½ of my money will go to A and the other If there are 3: ½, ¼ and ¼ and the value of the house is 1M,
half to B, there can still be accretion. It is a different story if it B repudiated. What will happen?
provides that my deposit in BPI shall go to A and that in HSBC
shall go to B. in the latter case, there is already earmarking, The share of B shall go to A (2/3) and C (1/3).
thus no more accretion.
Article 1020. The heirs to whom the inheritance
Article 1018. In legal succession the share of the accrues shall succeed to all the rights and obligations
person who repudiates the inheritance shall always which the heir who renounced or could not receive it
accrue to his co-heirs. (981) would have had. (984)
In case of repudiation, actually, there can be accretion. We Whatever rights that B had over the share, A and C will also
have to make a distinction, if there is testamentary or legal acquire it.
succession.
Article 1021. Among the compulsory heirs the right
Remember, in T succession, what kinds of vacancies is of accretion shall take place only when the free
accretion possible? portion is left to two or more of them, or to any one
of them and to a stranger.
 Predecease
 Incapacity Should the part repudiated be the legitime, the other
 Repudiation co-heirs shall succeed to it in their own right, and not
 Suspensive condition is not fulfilled by one of the by the right of accretion. (985)
heirs
 Failure to identify an heir
 Institution becomes ineffective We already explained that.
Note: in T succession, the right of accretion occurs only in the Article 1022. In testamentary succession, when the
free portion. right of accretion does not take place, the vacant
portion of the instituted heirs, if no substitute has
What if we are talking about legitime? been designated, shall pass to the legal heirs of the
testator, who shall receive it with the same charges
The vacant portion goes to the other heirs not by accretion but and obligations. (986)
by their own right as the remaining heir. although the effect is
the same, we don’t call it accretion but in their own right.
That’s again the order of priority which we already discussed:
ISRAI remember?
In right of representation again, in T succession, it only Article 1023. Accretion shall also take place among
happens in the legitime. There can be no right of devisees, legatees and usufructuaries under the same
representation in the free portion. *baliktad sila sa accretion* conditions established for heirs. (987a)
Same rules which we discussed before. As to accretion. religious, scientific, cultural, educational, or charitable
purposes.
SECTION 2
Capacity to Succeed by Will or by Intestacy unless there is a provision to the contrary in their charter or
the laws of their creation, and always subject to the same.
Article 1024. Persons not incapacitated by law may
succeed by will or ab intestato. But in legal succession, we only have the state.
The provisions relating to incapacity by will are Now, we go to incapacity. We actually have 2 types of
equally applicable to intestate succession. (744, 914) incapacity.
GR: Capacity, as long as you have not been incapacitated by 1. Absolute : they cannot inherit from any person and
law. you can succeed. they cannot inherit any property under any
circumstance
2nd par: the rules apply as well to testamentary and legal 2. Relative: they can only inherit from certain persons or
succession certain properties under certain circumstances
Capacity to succeed: capacity of the heir to inherit from the Who are absolutely incapacitated?
decedent.
1. Abortive infants
Article 1025. In order to be capacitated to inherit, 2. Juridical persons under their charter are disqualified
the heir, devisee or legatee must be living at the
to inherit.
moment the succession opens, except in case of
representation, when it is proper.
Relative incapacity, there are 3 kinds:
A child already conceived at the time of the death of
the decedent is capable of succeeding provided it be (a) By reason of possible due influence
born later under the conditions prescribed in article (b) By reason of public policy or morality
41. (n) (c) By reason of unworthiness
Article 1027. The following are incapable of

We are talking here of a natural person. succeeding:
Who can succeed?

(1) The priest who heard the confession of
the testator during his last illness, or the
 Natural persons
minister of the gospel who extended spiritual
 Juridical persons
aid to him during the same period;
Ex. Corporations, depends upon the charter
For a natural person to qualify to inherit: (2) The relatives of such priest or minister of
the gospel within the fourth degree, the
 He must attain civil personality. church, order, chapter, community,
( Go back to Art. 40 and 41 of the NCC) organization, or institution to which such
priest or minister may belong;
Article 1026. A testamentary disposition may be
made to the State, provinces, municipal corporations, (3) A guardian with respect to testamentary
private corporations, organizations, or associations for dispositions given by a ward in his favor
religious, scientific, cultural, educational, or charitable before the final accounts of the guardianship
purposes. have been approved, even if the testator
should die after the approval thereof;
All other corporations or entities may succeed under a nevertheless, any provision made by the
will, unless there is a provision to the contrary in their ward in favor of the guardian when the latter
charter or the laws of their creation, and always is his ascendant, descendant, brother, sister,
subject to the same. (746a) or spouse, shall be valid;
(4) Any attesting witness to the execution of

As we discussed, State, provinces, municipal corporations, a will, the spouse, parents, or children, or
private corporations, organizations, or associations for any one claiming under such witness,
spouse, parents, or children; We already discussed this in witnesses before diba?!
(5) Any physician, surgeon, nurse, health #5 health officer…

officer or druggist who took care of the
Physician, for example, sya jud ang nag-alaga during the last
testator during his last illness;
illness, he is disqualified.
(6) Individuals, associations and corporations What if nagpacheck up lang ka sa doctor? After the check up
not permitted by law to inherit. (745, 752, gitagaan nimo sya ug legacy and then namatay. Is the doctor
753, 754a) disqualified?
The law says, took care of the testator, this means a

Incapable to succeed by reason of possible undue continuing care not an isolated one.
influence.
Druggist dili siguro na mga pusher noh? 
Note that the reason why they are disqualified is because of
their situation or their relationship to the decedent. Article 1028. The prohibitions mentioned in article
739, concerning donations inter vivos shall apply to
The law says, they are incapable to succeed, the law here testamentary provisions. (n)
provides to a conclusive presumption. You cannot present Cf:
evidence to the contrary.
Article 739. The following donations shall be void:
Again, even if we say that this applies to both, actually it is
only applicable in testamentary succession.
(1) Those made between persons who were
Ang order sa panghitabo: naay illness si testator then he guilty of adultery or concubinage at the time
confess, then he made a testamentary disposition in favor of of the donation;
the priest. Thus, the testamentary disposition must come after
the confession. (2) Those made between persons found
guilty of the same criminal offense, in
Last illness, one where there is a great possibility of death. consideration thereof;
Example, naay cancer si testator, he confessed, then gave (3) Those made to a public officer or his
property to the priest. 20 years after namatay si testator. wife, descendants and ascendants, by
Disqualified ba si priest? NO, here there is sufficient time to reason of his office.
change his will if there has been undue influence. Not
applicable.
In the case referred to in No. 1, the action for
That is with respect to # 1 and 2 declaration of nullity may be brought by the spouse of
the donor or donee; and the guilt of the donor and
Now, #3 donee may be proved by preponderance of evidence
in the same action. (n)
The will here was made during the existence of guardianship.
When is the guardianship terminated? When the final accounts So if the testator gave to his mistress a house, that disposition
have been approved by the court. cannot be given effect because she is disqualified to receive
the inheritance.
Samtang wala pa na-approve sa court ang final accounting,
any disposition in favor of the guardian is invalid, the guardian Note: applies only to testamentary succession.
is disqualified.
Incapacity by reason of public policy or morality.
Note, any provision may by the ward, if the guardian is the
ascendant or descendant or brother or sister or spouse, of the
ward, valid sya.
OCTOBER 13 – RAN
How about in #1 if the priest is the son of the testator?
Disqualified ba? Article 1029. Should the testator dispose of the whole or part
of his property for prayers and pious works for the benefit of
Insofar as his legitime, madawat jud niya. If given over and his soul, in general terms and without specifying its
above the legitime, he is disqualified. application, the executor, with the court's approval shall deliver
one-half thereof or its proceeds to the church or denomination
#4 attesting witness to which the testator may belong, to be used for such prayers
and pious works, and the other half to the State, for the contract like deed of sale and in fact it is really a donation or
purposes mentioned in article 1013. (747a) testamentary disposition. Still void.
Article 1032. The following are incapable of succeeding by

The testator gives part or wholly of his property for prayers reason of unworthiness:
and pious works for the benefit of his soul. So how the
disposition shall be made? If it is in general terms and without
specifying it application, the law says ½ to the church or (1) Parents who have abandoned their children or
denomination to which the testator may belong and the other induced their daughters to lead a corrupt or immoral
½ to the State, for the purposes mentioned in ART 1013 as life, or attempted against their virtue;
already discussed.
(2) Any person who has been convicted of an attempt
Article 1030. Testamentary provisions in favor of the poor in against the life of the testator, his or her spouse,
general, without designation of particular persons or of any descendants, or ascendants;
community, shall be deemed limited to the poor living in the
domicile of the testator at the time of his death, unless it (3) Any person who has accused the testator of a
should clearly appear that his intention was otherwise. crime for which the law prescribes imprisonment for
six years or more, if the accusation has been found
The designation of the persons who are to be considered as groundless;
poor and the distribution of the property shall be made by the
person appointed by the testator for the purpose; in default of (4) Any heir of full age who, having knowledge of the
such person, by the executor, and should there be no violent death of the testator, should fail to report it to
executor, by the justice of the peace, the mayor, and the an officer of the law within a month, unless the
municipal treasurer, who shall decide by a majority of votes all authorities have already taken action; this prohibition
questions that may arise. In all these cases, the approval of shall not apply to cases wherein, according to law,
the Court of First Instance shall be necessary. there is no obligation to make an accusation;
The preceding paragraph shall apply when the testator has (5) Any person convicted of adultery or concubinage
disposed of his property in favor of the poor of a definite with the spouse of the testator;
locality. (749a)
(6) Any person who by fraud, violence, intimidation,
or undue influence should cause the testator to make
We have an institution in favor of the poor - if that is the tenor
a will or to change one already made;
of the will, the poor in general without designation of particular
persons or of any community.
(7) Any person who by the same means prevents
Who are the poor mentioned? Who are the recipients of the another from making a will, or from revoking one
property? The law says shall be limited to the poor living in the already made, or who supplants, conceals, or alters
domicile of the testator at the time of his death unless the latter's will;
otherwise expressly stated by the testator.
(8) Any person who falsifies or forges a supposed will
Who shall designate to who are to be considered as poor? It of the decedent. (756, 673, 674a)
shall be made by the person appointed by the testator for the
purpose. In default, by the executor, and should there be no DISQUALIFICATION BY REASON OF UNWORTHINESS
executor, by the justice of the peace, the mayor, and the
municipal treasurer, who shall decide by a majority of votes all
Take note: ART 1031 will not apply to the disqualifications
questions that may arise. In all these cases, the approval of
mentioned in ART 1032 because in 1032 the testator may
the Court of First Instance shall be necessary.
actually (will?) the disqualification.
Article 1031. A testamentary provision in favor of a

FROM 2013 tsn: Article 1031, cannot apply to Art. 1032. The
disqualified person, even though made under the guise of an
latter would deal on the incapacity by reason of unworthiness.
onerous contract, or made through an intermediary, shall be
So, because of the act committed of that heir against the
void. (755)
testator even if there is no disinheritance, the persons or
offenders here are disqualified. They cannot inherit.
What if just to give the property to the mistress of the testator,
you just order that the property shall be given to A but A is
What are these grounds? If you notice some of the grounds for
just a dummy because eventually A has to give the property to
disqualifications are also grounds for disinheritance. So the
the mistress. The law says it is void. If A is just an
same explanation we have before will also apply.
intermediary or even if it is through the guise of an onerous
1 – Abandoned their children or induced their daughters to Condonation can erase the effect of disqualification or
lead a corrupt or immoral life, or attempted against their incapacity.
virtue.
2 KINDS OF CONDONATION
By analogy this would also apply to sons not only to daughters.
1 – IMPLIED: There is already a ground for disqualification and
2 – Same noh? CONVICTION of an attempt against the life of the heir is already disqualified, the testator despite knowing of
the testator, his or her spouse, descendants or ascendants. that act he instituted the heir in his will. Upon the death of the
Final judgment, all stages of execution and principals and testator, the heir can inherit because by still instituting him as
accomplices. heir in the will despite knowing there was already a ground for
disqualification. The testator already condoned the act. That is
3 – FALSE ACCUSATIONS. Just remember what the forms by if there was already an act committed and subsequently there
which are the accusation will (take?). The accusation must be is a will instituting the heir.
groundless. Remember also that the grounds mentioned in
ART 1032 will apply both to testamentary and legal succession. 2 – EXPRESS: There is already a will and in the will the testator
instituted A as heir and then A attempted against the life of
4 – Any heir of full age (21yo), knowledge of the violent death the testator and he was found guilty. Upon the death of the
of the testator (intentional crime/s), and should fail to report it testator in that case, can A inherit? NO because by the
to an officer of the law within a month, unless the authorities subsequent act of unworthiness he becomes incapacitated to
have already taken action inherit.
But remember this article has no application in our jurisdiction If the testator really wants to institute A as heir? He should
because it says “this prohibition shall not apply to cases condone the act of A in WRITING. After that A is now
wherein, according to law, there is no obligation to make an restored to capacity.
accusation”
CONDONATION IS A UNILATERAL ACT, IT IS
5 – Any person convicted of adultery or concubinage with the DIFFERENT WITH RECONCILIATION WHEREIN THERE
spouse of the testator. So any person which means it may be IS A MUTUAL RESTORATION OF THE RELATIONSHIP
the child of the testator, the ascendant of the testator or even BETWEEN THE OFFENDER AND THE OFFENDED PARTY.
the friend of the testator. Any person FOUND GUILTY of
adultery or concubinage with the spouse of the testator. The Is reconciliation sufficient or do we need a condonation in
person is disqualified even without the disinheritance. writing by the testator? TAKE NOTE: that if the ground for
unworthiness is also made as ground for
Take note that when it comes to the guilty spouse qualified disinheritance, we follow the RULES ON
lang gihapon siya unless there is disinheritance or there is DISINHERITANCE. So mere reconciliation is sufficient.
decree of legal separation. So kung disinheritance lang to siya condonation in writing is
also not sufficient because there is disinheritance and we
follow the rule on disinheritance. There has to be
6 – Fraud, violence, intimidation or undue influence should
reconciliation.
cause the testator to make a will or to change one already
made.
Article 1034. In order to judge the capacity of the heir,
devisee or legatee, his qualification at the time of the death of
7 –Fraud, violence, intimidation or undue influence prevents
the decedent shall be the criterion.
another from making a will or from revoking one already made
or who supplants, conceals or alters the testator’s will.
In cases falling under Nos. 2, 3, or 5 of article 1032, it shall
be necessary to wait until final judgment is rendered, and
8 – Any person who falsifies or forges a supposed will of the
in the case falling under No. 4, the expiration of the month
decedent.
allowed for the report.
So these persons are all disqualified to inherit.

If the institution, devise or legacy should be conditional, the
time of the compliance with the condition shall also be
Article 1033. The cause of unworthiness shall be without considered. (758a)
effect if the testator had knowledge thereof at the time he
made the will, or if, having known of them subsequently, he
How do we judge the capacity of an heir? When do we know
should condone them in writing. (757a)
whether or not he is qualified, capacitated or incapacitated?
The law says his qualification at the time of the testator’s
death. Why at the time of death? Because it is during this obliged to return it together it its accessions.
period that transmission happens.
He shall be liable for all the fruits and rents he may have
If it is conditional institution, you have to consider if the received, or could have received through the exercise of due
condition is fulfilled whether at the time also the heir is diligence. (760a)
qualified.
He has to return not only the property itself but also the
Article 1035. If the person excluded from the inheritance by accessions, fruits, rents because in the first place is not
reason of incapacity should be a child or descendant of the entitled.
decedent and should have children or descendants, the latter
shall acquire his right to the legitime. Article 1039. Capacity to succeed is governed by the law of
the nation of the decedent. (n)
The person so excluded shall not enjoy the usufruct and
administration of the property thus inherited by his children.
VIP ARTICLE! ASKED SEVERAL TIMES IN THE BAR EXAMS! 
(761a)
Usually ang question kay “What matters in succession are

This is the same provision in disinheritance which we already usually governed by the national law of the decedent?” ART 16
discussed. A person who is incapacitated can be represented. – Amount of successional rights, the order of succession,
By incapacity, predeceased, disinheritance – these persons can validity of the testamentary provision and the capacity to
be represented. Repudiation you cannot be represented. A succeed so these should be governed by the national law of
person who repudiates cannot be represented. the decedent.
If the heir becomes incapacitated because he committed an

Article 1040. The action for a declaration of incapacity and
act of unworthiness and then he is represented by his own
for the recovery of the inheritance, devise or legacy shall be
heir. Although for example his heir is a minor, as a parent he
brought within five years from the time the disqualified person
should have administration and usufruct over the property of
took possession thereof. It may be brought by any one who
the child. But in this case, he shall not have administration or
may have an interest in the succession. (762a)
usufruct.
2 ACTIONS:
Article 1036. Alienations of hereditary property, and acts of
administration performed by the excluded heir, before the
judicial order of exclusion, are valid as to the third persons 1 – Action for a declaration of incapacity
who acted in good faith; but the co-heirs shall have a right to
recover damages from the disqualified heir. (n) 2 – Action for the recovery of the inheritance, devise or legacy
Even if the law says he is disqualified but there has to be a What is the period? It shall be brought within 5 YEARS
pronouncement finally made by the court that indeed he is
disqualified. In the meantime, ginamit sa unworthy ang When? From the time the disqualified person took possession.
property and then iyahang gibaligya for example and then
finally na adjudged siya as excluded. So GR – if in bad faith
Who may bring the action? Anyone who has an interest in the
ang purchaser pwede pa mabalik pero kung innocent
succession.
purchaser ang nakapalit so dili na siya to mabalik. But the
excluded heir is deemed liable as to his co-heirs because in the
first place excluded siya he should not have been entitled to Who are these persons? Heirs, legatees, devisees, creditors
the property.
Article 1037. The unworthy heir who is excluded from the

succession has a right to demand indemnity or any expenses There's another ground for disqualification under the Family
incurred in the preservation of the hereditary property, and to Code.
enforce such credits as he may have against the estate. (n)
Art. 43. The termination of the subsequent marriage
We are talking of expenses for the preservation, he is entitled referred to in the preceding Article shall produce the
to indemnity. following effects:
Article 1038. Any person incapable of succession, who, (5) The spouse who contracted the subsequent
disregarding the prohibition stated in the preceding articles, marriage in bad faith shall be disqualified to inherit
entered into the possession of the hereditary property, shall be
from the innocent spouse by testate and intestate The acceptance shall benefit the creditors only to an
succession. (n) extent sufficient to cover the amount of their credits.
The excess, should there be any, shall in no case
For example, the other spouse has been absent for 4 yrs. The pertain to the renouncer, but shall be adjudicated to
spouse can be declared presumptively dead in a summary the persons to whom, in accordance with the rules
proceeding and the other spouse can remarry. But if the established in this Code, it may belong. (1001)
spouse who remarries is in bad faith, the guilty spouse is
disqualified to inherit from the innocent spouse by For example, A has been instituted as a heir in the will of the
legal or intestate succession. testator. He has been given 10M but A does not want to
accept. But A also has several debts amounting to 8M. He has
no other properties. (He wants to be poor, kay kung poor ka
Art. 44. If both spouses of the subsequent marriage
mas duol ka sa heaven) Creditors can petition the court to
acted in bad faith, said marriage shall be void ab initio
accept the inheritance in behalf of the heir but they can only
and all donations by reason of marriage and
do so up to the extent of their credit. They cannot accept the
testamentary dispositions made by one in favor of the
10M, only the 8M. They have to be prejudiced creditors, they
other are revoked by operation of law. (n)
have no other way to exact payment from the heir.
By operation of law, you need to withdraw the

testamentary disposition. No need to revoke the will. 2) No person can be forced to accept the
No need to disinherit. They are all disqualified to inherit generosity of another.
from each other by legal or intestate succession.
3) Acceptance and repudiations should be free
What is acceptance and what is repudiation? and voluntary acts. The presence of vitiated
consent will render them without effect.
Like in donation, succession also involves an act of liberality by
the testator, especially when it is testamentary succession. 4) Both are subsequent to the death of the
decedent but their effects retroact to the
But the instituted heirs, devisees and legatees are not moment of death.
compelled to accept. They may repudiate or renounce.
Article 1042. The effects of the acceptance or
When we say acceptance, it is the act by which a person repudiation shall always retroact to the moment of the
called to succeed to the inheritance of the decedent, either by death of the decedent. (989)
will or by law, manifests his assent to the receipt of the
property, rights, and obligations which are transmitted to him If you accepted 5 days after death of the decedent,
thru the death of the said decedent. you are deemed to have accepted upon the death the
decedent. If you repudiated your inheritance 30 days
Repudiation, on the other hand, is the act by which a person
after death, an heir who repudiates is deemed to
called to succeed to said inheritance, manifests his
have never received the estate. If it is a real
unwillingness to succeed.
repudiation, you are not allowed to benefit from the
inheritance. It retroacts to the moment of death, even
What are the different nature of acceptance and
if you held the property for the meantime.
repudiation?
5) Once made, acceptance and repudiation, are
1) Rights may be waived, provided that such
irrevocable. As long as you have already
waiver is not contrary to law, public order,
communicated your acceptance or repudiation.
public policy, morals, good customs or
prejudicial to the rights of a third person.
6) It is more usual to accept than to reject an
advantage or benefit.
This is only one limitation on the right to accept
or repudiate, specifically repudiation. If you examine, there are more formalities required
by the law for repudiation because being an act of
What is an example of the limitation to the disposition, it is more usual for human beings to
right to repudiate? accept than to repudiate.
Article 1052. If the heir repudiates the inheritance to Article 1049. Acceptance may be express or tacit.
the prejudice of his own creditors, the latter may
petition the court to authorize them to accept it in the
name of the heir. An express acceptance must be made in a public or
private document.
A tacit acceptance is one resulting from acts by which He renounced gratuitously in favor of B only or B and C. That
the intention to accept is necessarily implied, or which is still acceptance. If it was repudiation in its real sense, it
one would have no right to do except in the capacity of should be gratuitously in favor of all, indiscriminate.
an heir.
(3) If he renounces it for a price in favor of all his co-
Acts of mere preservation or provisional administration heirs indiscriminately; but if this renunciation should
do not imply an acceptance of the inheritance if, be gratuitous, and the co-heirs in whose favor it is
through such acts, the title or capacity of an heir has made are those upon whom the portion renounced
not been assumed. (999a) should devolve by virtue of accretion, the inheritance
shall not be deemed as accepted. (1000)
What are the modes of acceptance? It can be in a public
or private document. Public means acknowledged before a You cannot demand for a price if you repudiate. Because if you
notary public. Private, pwede ikaw lang nagsulat-sulat. That is demand for a price, you are deriving benefit from the
express acceptance. inheritance. One who repudiates cannot derive any
benefit from the estate.
Tacit acceptance is the second mode of acceptance. If you renounce without receiving anything at all, that is real
It results from acts by which the intention to accept is repudiation. What happens to your share which you have
necessarily implied or which one would not do except in his repudiated? As we discussed in accretion, you share will
capacity as an heir. Even if you did not execute a document, accrue to the others.
whether public or private, but you acted in such a way that
your act is inconsistent with repudiation. It cannot be
interpreted in any other manner than by acceptance. The third kind of acceptance is in Art. 1057.
Article 1050. An inheritance is deemed accepted: Article 1057. Within thirty days after the court has
issued an order for the distribution of the estate in
(1) If the heirs sells, donates, or assigns his right to a accordance with the Rules of Court, the heirs, devisees
stranger, or to his co-heirs, or to any of them; and legatees shall signify to the court having
jurisdiction whether they accept or repudiate the
inheritance.
(2) If the heir renounces the same, even though
gratuitously, for the benefit of one or more of his co-
heirs; If they do not do so within that time, they are deemed
to have accepted the inheritance. (n)
(3) If he renounces it for a price in favor of all his co-

heirs indiscriminately; but if this renunciation should This is presumed acceptance.
be gratuitous, and the co-heirs in whose favor it is
made are those upon whom the portion renounced How is repudiation done? There are only two modes of
should devolve by virtue of accretion, the inheritance repudiation. (1) By public or authentic instrument. (2)
shall not be deemed as accepted. (1000) By petition presented to the court having jurisdiction
over the testamentary or intestate proceeding.
The acts enumerated in 1050 are acts of tacit acceptance. Public document means acknowledged before the notary public
or authentic instrument, not necessarily acknowledged but it is
(1) If the heirs sells, donates, or assigns his right to a genuine.
stranger, or to his co-heirs, or to any of them;
Imperial v CA
For example, (illustrates on board) A B C D are instituted as In this case, Leoncio sold his land to his natural son but it was
heirs by the testator. A said he would like to sell his share alleged that the sale was in fact a donation. Two years after
either to X a stranger or to all of them BCD or anyone of them, donation, he filed a complaint for the annulment of the deed of
B. In that case, A accepted the inheritance because sale, absolute sale. The case was resolved thru a compromise
donation, assignment are acts of dominion. You cannot agreement. But pending execution of judgment on the CA, he
perform these acts without assuming ownership of the died and left his two children. One of his children, Victor, the
property donated or transferred. adopted son, replaced him and moved for execution of CA.
Victor also died and he was survived by his natural father. His
(2) If the heir renounces the same, even though father also died and was substituted by his children. Now,
gratuitously, for the benefit of one or more of his co- Cesar and Teresa filed a complaint for annulment,
heirs; reconveyance, recovery of possession seeking the nullification
of the deed of sale, alleging that the conveyance of the
property impaired the legitime of Victor, their natural brother Who may accept in behalf of minors? They cannot accept
and predecessor-in-interest. It was argued by the other side on their own because they do not have the capacity to act.
that when Victor filed a motion for the execution of CA, in They may be represented by their parents or guardians.
effect, he repudiated his inheritance therefore, their action
should fail. How about in Repudiation? Also, their parents or
guardians but with judicial approval.
Was there implied repudiation? NO. Under NCC, there are only
two modes of repudiation: (1) By public or authentic Those left to the poor. Who may accept? The persons
instrument; (2) By petition filed in the testate or intestate designated by the testator or in default, we follow the order in
proceeding. There is no such thing as an implied or presumed 1030. Who may repudiate? The law does not mention. (Poor
repudiation. na gane, magrepudiate pa. HILAS)
7) There can be partial acceptance and partial

repudiation. Article 1046. Public official establishments can neither
accept nor repudiate an inheritance without the
approval of the government. (994)
Article 954. The legatee or devisee cannot accept a part
of the legacy or devise and repudiate the other, if the
latter be onerous. Acceptance and repudiation must be with the approval of the
government.
Should he die before having accepted the legacy or

How about corporations, institutions and entities?
devise, leaving several heirs, some of the latter may
accept and the others may repudiate the share Acceptance by their lawful representatives. How about
repudiation? Also, lawful representatives but with court
respectively belonging to them in the legacy or devise.
(889a) approval.
Married woman. She can accept and repudiate on her own

The heir can accept the onerous part and repudiate the
even without husband's consent.
gratuitous part. But he cannot accept the gratuitous part and
repudiate the onerous part.
Deaf and mutes who can read and write. Acceptance and
8) Repudiation of hereditary rights partakes the nature repudiation may be made personally or thru an agent.
of donations. (Discussion on tax aspect)
Deaf mutes who cannot read or write. Who may accept in
9) Acceptance of inheritance does not make the heir their behalf? Guardians. Who may repudiate? Guardians but
personally liable for the debts and obligations of the with court approval.
decedent.
When you are an instituted heir, your acceptance carries with Article 1053. If the heir should die without having
it the acceptance of the properties, rights and obligations. If accepted or repudiated the inheritance his right shall
you are an heir, you succeed to the universality or aliquot be transmitted to his heirs. (1006)
share. You cannot say specific properties. If you accept, that
also includes acceptance of the obligation but the obligation is The right to repudiate or accept will be transmitted to the
only up to the extent of the inheritance. heirs.
How can the minor accept?

Article 1054. Should there be several heirs called to the
inheritance, some of them may accept and the others
Article 1044. Any person having the free disposal of his may repudiate it. (1007a)
property may accept or repudiate an inheritance.
If there are several heirs, some may accept, the others may
Any inheritance left to minors or incapacitated persons repudiate.
may be accepted by their parents or guardians. Parents
or guardians may repudiate the inheritance left to their
wards only by judicial authorization. Article 1055. If a person, who is called to the same
inheritance as an heir by will and ab intestato,
repudiates the inheritance in his capacity as a
The right to accept an inheritance left to the poor shall
testamentary heir, he is understood to have repudiated
belong to the persons designated by the testator to
it in both capacities.
determine the beneficiaries and distribute the
property, or in their default, to those mentioned in
article 1030. (992a)
Should he repudiate it as an intestate heir, without manner as an individual; but it shall not be appointed
knowledge of his being a testamentary heir, he may guardian of the person of a ward. (n)
still accept it in the latter capacity. (1009)
Corporations and associations can be executors or
Dual capacity. He is an heir by will and he is an heir by administrators. But it should not be appointed guardian of a
legal succession. If you are instituted as heir in the will and ward because guardianship may be over the person, the
you find it in your heart to repudiate the express will of the property of the word or both. If over the person of the ward,
testator, then the law presumes with more reason that you do they are disqualified because it requires personal relationship.
not want to accept by operation of law in the presumed will of
the testator. Your repudiation as testamentary heir COLLATION
carries with it your repudiation as legal heir.
There are three concepts of collation.
But if you repudiate as legal heir, without having

knowledge of being a testamentary heir, you can still
First, Collation as a mathematical process. This is the
accept as testamentary heir.
imaginary addition or fictitious union of the property donated
by the testator inter vivos upon his death.
EXECUTORS AND ADMINISTRATORS
Assuming the decedent left 180K. During his lifetime, he made
Article 1058. All matters relating to the appointment, a donation of 20K. He has debts amounting to 10K. How do we
powers and duties of executors and administrators and compute the net hereditary estate? 180K + 20K(donation) -
concerning the administration of estates of deceased 10K (debts) = 190K. This is the basis for the computation of
persons shall be governed by the Rules of Court. (n) the legitime. All donations must be added up to the estate.
(Pero dili guyuron pabalik ang properties)
This will be discussed under special proceedings.
Second, Collation as an imputation. Donations inter vivos
When you say executor, he is the person named in the will made to compulsory heirs are considered as advances to their
who is appointed to administer the properties of the decedent. legitimes.
Kung babae, executrix.
For example, testator left two sons. 190 is the estate. Legitime
is 95K. 95K is the free portion. Each son will receive 47,500. If
When there is a will and there is no appointed administrator,
one must be appointed. He is called the administrator the the 20K donation was given to one of the sons, it will be
considered as an advance to his legitime. 45K - 20K (donation)
will annexed.
During the distribution of the estate, he will only be given 25K.
When there is no will or the will is void, the person appointed

Third, Actual reduction or abatement. It is the actual
is called the administrator/administratrix.
reduction or bringing back of that property donated by the
testator during his lifetime from his estate, when the donations
Article 1059. If the assets of the estate of a decedent are found to be inofficious.
which can be applied to the payment of debts are not
sufficient for that purpose, the provisions of articles
During his lifetime, He made a donation of 100K to a friend.
2239 to 2251 on Preference of Credits shall be
Donation of 20K to his son. Upon his death, he left 80K. How
observed, provided that the expenses referred to in
do we determine the value of the estate! 80K + 20K + 100K -
article 2244, No. 8, shall be those involved in the
10K = 190K. Legitime is 95K. Free portion 95K.
administration of the decedent's estate. (n)
Donation to a friend shall be charged to the free portion. But

This will also be discussed in special proceedings. You the free portion is only 95K. It shall be deducted by 5K, that
remember concurrence and preference of credits? If assets are which prejudiced the legitime.
sufficient, there is no need to apply concurrence and
preference of credits. If not sufficient, 2239-2251 shall be
applied. When is there a need for collation? There is a need for
collation when the decedent left compulsory heirs and there
are donations inter vivos.
Article 1060. A corporation or association authorized to
conduct the business of a trust company in the
Arellano v Pascual (Dec. 15, 2010)
Philippines may be appointed as an executor,
administrator, guardian of an estate, or trustee, in like
Angel Pascual died leaving his brothers and sisters. While in (5) the determination of the amount of the legitimes by getting
the process of settling the estate, it was brought up that one from the total thus found the portion that the law provides as
of the sisters revived a donation from the decedent during his the legitime of each respective compulsory heir.
lifetime. So the other brothers and sisters contended that such
donation shall be considered as an advance. Is that contention When you say strangers for purposes of collation, it refers to
correct? NO. Decedent was survived only by brothers and those persons other than the compulsory heirs. For purposes
sisters. He did not have compulsory heirs. The purpose of of collation, we exclude a donation made to a spouse because
collation is to preserve the legitime of compulsory heirs. during the subsistence of the marriage, the spouses are
Otherwise, he may be able to defeat and circumvent the law of prohibited from donating to each other. It is considered void,
legitimes by donating his property during his lifetime. In this therefore it is not subject to collation but that donated
case, there is no legitime to be protected hence, there is no property shall still form part of the estate.
need for collation. Amelia gets the property donated to her and
the properties left upon the death of the decedent will be As a general rule, donations made to compulsory heirs are
divided equally among the siblings, including Amelia. charged to their legitimes. Donations to strangers are charged
to the free portion.
October 16, 2014
(rj) So if the free portion is not sufficient to cover the donation,
then the donation is inofficious and it is not subject to the
reduction or abatement.
The case of Arellano v Pascual reiterates that there is only a
need for collation if there are compulsory heirs. We should Article 1061. Every compulsory heir, who succeeds with
collate all donation inter vivos. other compulsory heirs, must bring into the mass of the estate
any property or right which he may have received from the
What donations are subject of collation? What kinds of decedent, during the lifetime of the latter, by way of donation,
donation? or any other gratuitous title, in order that it may be computed
In Vda. De Tupas v RTC of Negros Occidental, there was a in the determination of the legitime of each heir, and in the
donation made in favor of Tupas Foundation Inc., which is of account of the partition.
course, not a compulsory heir of the testator. The issue here is
whether the donation made to Tupas Foundation Inc. be Concept of Collation as a mathematical process.
subject to collation. It was contended that Tupas is not a
compulsory heir, therefore we should not collate that donation The law says, “by way of donation, or any other gratuitous
made to Tupas. The SC ruled that all donations made by the title, in order that it may be computed in the determination of
decedent during his lifetime are subject to collation. Collation the legitime”. So take note not only donation inter vivos per se
of gifts should include gifts not only those given to forced heirs but also other gratuitious dispositions given by gratuitous title.
but also those given in favor of strangers so that in completing There are certain grants which are given by the testator which
the legitimes, the value of the property donated should be may not necessarily form as a donation proper.
considered as part of the donor’s estate. It would be absurd to
exclude from collation those made to strangers. And the Article 1062. Collation shall not take place among
testator may circumvent the law on legitimes by making compulsory heirs if the donor should have so expressly
donations to strangers. provided, or if the donee should repudiate the inheritance,
unless the donation should be reduced as inofficious.
This case also summarized the computation of the legitimes in Instances:
order to find out to determine whether a donation is inofficious
or not. 1) The testator/decedent/donor expressly stated that the
donation is not subject to collation.
(1) determination of the value of the property which remains 2) The donee repudiated the inheritance.
at the time of the testator's death;
The testator/decedent/donor expressly stated that the
(2) determination of the obligations, debts, and charges which donation is not subject to collation.
have to be paid out or deducted from the value of the property
thus left; What happens if the decedent or the donor provides that the
donation is not subject to collation?
(3) the determination of the difference between the assets and
the liabilities, giving rise to the hereditary estate; Illustration:
Estate: 150, 000
(4) the addition to the net value thus found, of the value, at No debts
the time they were made, of donations subject to collation; Donations:
and A – 30, 000
B – 20, 000 (not subject to collation)
We add back the 30, 000. How about the 20, 000? We still as advance to the legitime of the compulsory heir. Or just say,
have to add it back. Still subject to collation as a mathematical it is not subject to collation. But again, mathematical process
process. still added back. Meaning lang ana is it should not be
considered as advance to the legitime. It should not be
Solution: imputed.
150, 000 Article 1063. Property left by will is not deemed subject to
30, 000 collation, if the testator has not otherwise provided, but the
20, 000 legitime shall in any case remain unimpaired.
200, 000
For example, legacy or devise is given to a compulsory heir,
 100, 000 Legitime general rule, it is not included in the computation unless the
 100, 000 Free portion testator says it shall be part of the legitime.
A: A received a donation of 30, 000 during the testator’s Article 1064. When the grandchildren, who survive with their
lifetime and his legitime is supposed to be 50, 000. But he uncles, aunts, or cousins, inherit from their grandparents in
already received in advance the 30, 000. So he will just receive representation of their father or mother, they shall bring to
an additional 20, 000. collation all that their parents, if alive, would have been
obliged to bring, even though such grandchildren have not
So the donation to A is collated subject to collation by way of inherited the property.
imputation. It is imputed to his legitime.
Assuming:
B: How about the donation made to B? Is it imputed to his
legitime? NO. because testator said it is not subject to Decedent has a son A. A has a son B.
collation.
Example, during his lifetime the decedent made a donation to
Subject to collation to sya as a mathematical process but it is A worth 50k. He also made a donation to B worth 100k.
not imputed to the legitime of the compulsory heir to whom
that donation is given. So the 20, 000 is charged to the Free If the decedent died, and he is survived by A and B, who are
portion. his heirs? Only A because B is excluded under the rule on
proximity.
The donee repudiated the inheritance.
Is A liable to collate the donation made to him during the
What happens if the donee repudiates the inheritance? lifetime of the decedent? YES. It shall be considered as
advance to his legitime unless otherwise stated by the
Example B repudiated the inheritance, do we add back the 20, decedent.
000? YES. Basta naay compulsory heirs, all donation inter vivos
are subject to collation, whether or not the testator said that it How about the donation made to B? Should it be collated? NO
is not subject to collation. Everything is subject to collation as because the heir is A in his own right.
a mathematical process.
Assuming A predecease the decedent and subsequently the
Since B repudiated, what happens to the 20, 000 given to him? decedent died. Who will be the heir of the decedent? B by the
It is considered as charged to the Free portion. So in that case, right of representation.
A, in his own right, becomes the sole heir. The share of B will
accrue to A. The donation made to B shall be charged to the What donations should be the subject of collation? As a
free portion. mathematical process, all of these donations are subject of
collation.
In Buhay de Roma v CA, the donation was described as
irrevocable. Question: if a donation is designated as What donations are imputed to the legitime of B as
irrevocable, is it not subject to collation? NO. it is still subject representative of A? In this case, we impute to the legitime the
to collation. “The fact that a donation is irrevocable does not 50k donated to A, we also impute to the legitime the 100k
necessarily exempt the subject thereof from the collation donated to B because B himself inherits but he also inherits in
required under Article 1061.” The intention to exempt from behalf of A unless again the testator would provide otherwise.
collation should be expressed plainly and unequivocally as an
exception to the general rule announced in Article 1062. Article 1065. Parents are not obliged to bring to collation in
the inheritance of their ascendants any property which may
Again, it is still subject to collation as a mathematical process have been donated by the latter to their children.
but not imputed to the legitime. Even if it considered as
irrevocable, it does not mean that it is not subject to collation. Same example from the preceding article.
And if your intention is to exempt that donation from
imputation, you must specify that it should not be considered Article 1066. Neither shall donations to the spouse of the
child be brought to collation; but if they have been given by The law also says that even if the parents opt that the
the parent to the spouses jointly, the child shall be obliged to expenses are subject to collation, the sum which the child
bring to collation one-half of the thing donated. would have spent if he had lived in the house and company of
his parents shall be deducted therefrom. So kung nakagasto
The donation is made to the spouse of the child. na imung parents ug 10m sa imung pag.eskwela sa lawschool
kay dugay kaayo ka nahuman. Kato bang entire 10m subject
1st example: to collation? Dili pod. Kwentahon pud nato katong time na
X and Y are spouses. niundang ka kay pahuway sa ka. So ibawas to sya sa 10m.
M and N are the parents of X. Article 1069. Any sums paid by a parent in satisfaction of
the debts of his children, election expenses, fines, and similar
Ang parents ni X, nagdonate sila 1m kay Y. Namatay si N. Is X expenses shall be brought to collation.
liable to bring to collation the value of the donation which N
herself made to Y? NO. So the concept of collation not only includes those by
gratuitous title. Out of generosity or affection of your parents
The value of the donation is 1m, if this is jointly made by M sila na lang nagbayad ug imung untang, npreso ka. Kani sila
and N, ang sa estate ni N kato lang 500k. Pero kung si N lang subject to collation.
ang nagdonate so ang entire 1m.
Article 1070. Wedding gifts by parents and ascendants
2nd example: consisting of jewelry, clothing, and outfit, shall not be reduced
M and N are spouses. Nagdonate sila to the spouses X and Y as inofficious except insofar as they may exceed one-tenth of
jointly and then namatay si N. Si X, ang ilang i.collate lang the sum which is disposable by will.
katong share nya sa 1m which is 500k, katong other half n
nahatag sa iyang asawa, dili sya subject sa collation. General rule dili sya subject to collation unless ang value nila
exceeds 10% of the free portion.
Article 1067. Expenses for support, education, medical
attendance, even in extraordinary illness, apprenticeship, Example:
ordinary equipment, or customary gifts are not subject to Estate – 2m
collation. Free portion – 1m
Support includes which are indispensable to the sustenance of Wedding dress – 500k
the child – not subject to collation.
Would this exceed 10% of the free portion? Yes. In fact, the
Take note: when you say not subject to collation, they are not 10% is only 100k. so nsobra sya ug 400k. in that case, katong
really added back to the estate, not even by mathematical 100k icharge sa free portion; and 400k icharge na sya sa
process. They are considered as obligations of parents. legitime sa heir na gitagaan sa wedding dress.
When you say education, we are only referring up to high The law says, jewelry, clothing, outfit. How about house and
school education. lot as a wedding gift? It shall be considered as:
It depends – if dili ana kabongga and parents, tama tama ran
Customary gifts – cellphone, jewelry, cake (alangan icollate pa a nakahatag sila ug house and lot. That should be considered
ni nimu). But when we say customary, we have to take in to as a donation unless otherwise provided it shall be considered
account the status of the giver. Example, car or house, is it as advance to the legitime of the compulsory heir. If it is
customary? Or is it subject to collation? It depends under the considered as a customary gift, in that case we apply article
circumstances. Kung billionaire ka, customary ra jud na so not 1067.
subject to collation.
Article 1071. The same things donated are not to be
Article 1068. Expenses incurred by the parents in giving brought to collation and partition, but only their value at the
their children a professional, vocational or other career shall time of the donation, even though their just value may not
not be brought to collation unless the parents so provide, or then have been assessed.
unless they impair the legitime; but when their collation is
required, the sum which the child would have spent if he had Their subsequent increase or deterioration and even their total
lived in the house and company of his parents shall be loss or destruction, be it accidental or culpable, shall be for
deducted therefrom. the benefit or account and risk of the donee.
This is what we call OPTIONAL COLLATION. Collation as a MATHEMATICAL PROCESS.
Take note: these are expenses after high school. General rule First is only their value. Not really the property which is
not subject to collation but the parents may provide na they brought back but only the value.
are subject to collation and considered as advance to the
legitime. Hence it is optional on the part of the parents. What value to be considered? AT THE TIME OF THE
DONATION.
quality as that subject to collation shall be made the standard

What happens if there had been losses, improvements, and of assessment.
depreciation? It shall be for the account of the donee.
Assuming that the testator donated a land to A and the land is
Article 1072. In the collation of a donation made by both planted. From the time the donee accepts the donation, he will
parents, one-half shall be brought to the inheritance of the already generate income from the crops until the death of the
father, and the other half, to that of the mother. That given testator. Does he have the obligation to return the fruits and
by one alone shall be brought to collation in his or her income he received from the time the donation is made? NO.
inheritance. iyaha na to.
2nd example under Article 1066. But from the time the decedent die then didto na pud
magpertain and rules: except from the day on which the
Article 1073. The donee's share of the estate shall be succession is opened. Katong mga fruits from the time of
reduced by an amount equal to that already received by him; death apil na to sya but depende sya kung inofficious ang
and his co-heirs shall receive an equivalent, as much as donation or dili. Kung inofficious ibalik man nimu ang property
possible, in property of the same nature, class and quality. ug income. Pero kung dli sya inofficious, walay obligation si
donee to return.
Collation by way of imputation. If the donee is a compulsory
heir, then his share shall be reduced by an amount equal to Article 1076. The co-heirs are bound to reimburse to the
donation already received by him. donee the necessary expenses which he has incurred for the
preservation of the property donated to him, though they may
For example, si A gitagaan ug house and lot by of donation not have augmented its value.
during the lifetime of the testator. Upon the death of the
testator, that house shall be considered as an advance to the The donee who collates in kind an immovable which has been
legitime. So B and C for the sake of equality, dapat pud given to him must be reimbursed by his co-heirs for the
makadawat ug house and lot as much as possible kung naa improvements which have increased the value of the property,
pa. and which exist at the time the partition if effected.
Article 1074. Should the provisions of the preceding article As to works made on the estate for the mere pleasure of the
be impracticable, if the property donated was immovable, the donee, no reimbursement is due him for them; he has,
co-heirs shall be entitled to receive its equivalent in cash or however, the right to remove them, if he can do so without
securities, at the rate of quotation; and should there be injuring the estate.
neither cash or marketable securities in the estate, so much of
the other property as may be necessary shall be sold at public Collation by way of reduction or abatement.
auction.
If there is already an obligation on the part of the donee to
If the property donated was movable, the co-heirs shall only return. To collate in kind, meaning ang property na mismo, dili
have a right to select an equivalent of other personal property ang value. The property itself.
of the inheritance at its just price.
So unsa ang obligation sa co – heirs?
As much as possible the same nature, class and quality. But if
it is impracticable and that property donated to one of the 1. They are bound to reimburse the necessary expenses
heirs is immovable, all the heirs shall have this right: to receive even if the property did not augment the value of the
its equivalent in cash or securities, at the rate of quotation. property.
Kung walay cash or securities, then so much of the other 2. He must be reimbursed by his co-heirs for the
property as may be necessary shall be sold at public auction. improvements which have increased the value of the
Pwede sya magdemand na tagaan sya ug cash. property.
3. For the mere pleasure of the donee, walay syay
But if the property donated is movable, the co – heirs shall reimbursement. Pwede sya tanggalon if it cannot
only have a right to select an equivalent of other personal injure the estate.
property of the inheritance at its just price. They cannot
demand na hatagan ko ug cash. Walay right ang heir if it is a Article 1077. Should any question arise among the co-heirs
personal property. upon the obligation to bring to collation or as to the things
which are subject to collation, the distribution of the estate
Article 1075. The fruits and interest of the property subject shall not be interrupted for this reason, provided adequate
to collation shall not pertain to the estate except from the day security is given.
on which the succession is opened. For example there are questions regarding certain properties
subject to collation, these will not prevent the distribution of
For the purpose of ascertaining their amount, the fruits and the property.
interest of the property of the estate of the same kind and
SECTION 6 C Right
Partition and Distribution of the Estate B of
SUBSECTION 1. Partition A Way
Highway
This is actually the last part. In settlement proceedings, this
will culminate in partition of the estate. Even in probate
proceedings, after the will is allowed the property shall be How do we partition? (Methods of partition)
distributed in accordance with the will. In intestate
proceedings, the property shall be distributed in accordance If there is only one heir and no will, the proper way to do that
with law. is to execute an affidavit of self-adjudication. If there is a will,
of course we have to partition in accordance with the will.
Before partition, what happens? Article 1078 provides..
If there are two or more heirs and they can agree and there
Article 1078. Where there are two or more heirs, the whole are no debts, they can execute an extra judicial partition. You
estate of the decedent is, before its partition, owned in don’t have to go to court. Just execute the documents and
common by such heirs, subject to the payment of debts of the signed by all. Then you specify what the respective share of
deceased. (n) the heirs are. Important requirement is that it must be
published.
If there are two or more heirs, before the partition, they are co
– owners of the property. So if there is only one heir, then the If the heirs cannot agree among themselves and there is no
sole heir gets the entire property. will, then the other option is to execute an action for partition.
You compel for partition. There is a civil action for partition.
For them to distribute the property among themselves they There is also settlement for intestate estate. That is resorted to
should resort to partition. But they can also remain in co – especially if there are creditors.
ownership. There is no prohibition.
In the case of Heirs of Joaquin Teves v CA, the heirs executed
Article 1079. Partition, in general, is the separation, division an extra – judicial partition and the extra – judicial partition is
and assignment of a thing held in common among those to governed by the Rules of Court (Rule 74, Section 1). It is a
whom it may belong. The thing itself may be divided, or its requirement that:
value. 1) The decedent left a will
2) And the decedent left no debts. Or if there are debts, the
You allocate among the several heirs the respective share debts are already paid.
which would go to each one of them. The thing itself may be 3) if there are minors, that they are represented by a judicial
divided or its value. Actually in partition, not necessarily na in guardian or representative.
equal area gyud. 4) the partition is made by means of a public document
acknowledged before a notary public and filed with the ROD.
Illustration:
In this case, it was not followed. There was an extra – judicial
settlement but it was not in a public document. Is this valid?
An extra – judicial partition made in a private document? The
Supreme Court said YES. It is valid. How about the
C
requirement in the Rules of Court that it has to be in a public
Right document and filed in the ROD? The Supreme Court said that
of these requirement is only applicable and only must be
Way complied with if there are creditors affected. This requirement
B of being a public document and registered in the ROD is
actually for the protection of the creditors and among the heirs
A themselves.
Highway As to the creditors, under the rules they have to file their claim
against the estate. There are prescriptive periods in which the
Asa man muagi ang uban? Tapos we can also say na if duol ka creditors are allowed to claim against the estate. So if the
sa road, mas dako man ang value compared sa katong sa extra – judicial partition is registered in the ROD then this will
road. So when you say equal share, not necessarily na equal start the running of the prescriptive period. So for the creditor,
ang area. There are certain things that must be considered. they are now properly apprised of the partition. And for the
heirs themselves, the creditors after a certain period – two
Pero kung sigurista jod mong tanan, magbowling na lang mo years, would now be barred from claiming from the estate. So
ani.  that is the purpose of having it in a public document and
registered in the ROD.
But if there are no creditors affected then the heirs can just (3) That the promissor has, with respect to the object, an
partition among themselves. In fact the SC has ruled that even expectancy of a right which is purely hereditary in nature.
oral partition is valid.
A contract upon a future inheritance is an exception to the rule
Article 1080. Should a person make partition of his estate by that you can enter into a contract regarding future properties.
an act inter vivos, or by will, such partition shall be respected,
insofar as it does not prejudice the legitime of the compulsory Exception to the exception is partition inter vivos. Even if we
heirs. are talking of future inheritance the testator can partition that
A parent who, in the interest of his or her family, desires to during his lifetime.
keep any agricultural, industrial, or manufacturing enterprise
intact, may avail himself of the right granted him in this When Don Julian sold the property to JLT Agro, that means he
article, by ordering that the legitime of the other children to revoked the partition inter vivos. He was well within his right to
whom the property is not assigned, be paid in cash. revoked the partition inter vivos because it is essentially
revocable.
Partition can also be done by the testator even during his
lifetime. How? The second issue is that by executing the deed of assignment
1. By means of a will – you must comply with the they were in effect preterited. Are they preterited? The
formalities of a will. Supreme Court said NO because in order to have preterition,
2. By an act inter vivos – it does not have to follow the there has to be a will. Here there was no will. What he
formalities of a will. executed was a compromise agreement and deed of
In the case of JLT Agro incorporated vs. Balansag, the assignment. And also there are other properties left by the
decedent was involved in an action for damages case. Later on decedent.
there was a compromise agreement where a provision
provides that a certain property was allocated for his heirs in Article 1081. A person may, by an act inter vivos or mortis
the second marriage. Subsequently, Don Julian entered into a causa, intrust the mere power to make the partition after his
deed of assignment. With those documents in the deed of death to any person who is not one of the co-heirs.
assignment, the very same lot to be allocated to his heirs of
the second marriage, he sold that lot to JLT agro. Heirs of the The provisions of this and of the preceding article shall be
second marriage questioned alleging that Don Julian already observed even should there be among the co-heirs a minor or
executed a compromise agreement giving to us the lot. By that a person subject to guardianship; but the mandatary, in such
he could no longer subsequently sell the same lot to JLT Agro. case, shall make an inventory of the property of the estate,
We have a better right since it was executed first in our favor. after notifying the co-heirs, the creditors, and the legatees or
So who has a better right? The Supreme Court said that the devisees.
Compromise Agreement is in the nature of partition inter vivos.
The SC describe the partition inter vivos Article 1080 The testator can entrust the power to make a partition to any
authorizes a testator to partition inter vivos his property, and person who is not one of the co – heirs. How? By an act inter
distribute them among his heirs, and this partition is neither a vivos or mortis cause.
donation nor a testament, but an instrument of a special
character, sui generis, which is revocable at any time by Article 1082. Every act which is intended to put an end to
the causante during his lifetime, and does not operate indivision among co-heirs and legatees or devisees is deemed
as a conveyance of title until his death. to be a partition, although it should purport to be a sale, and
exchange, a compromise, or any other transaction.
Meaning the testator in executing that compromise agreement,
what he did was actually a partition inter vivos of his property. Even an oral partition can be made. Not necessarily in a public
But a partition inter vivos is not a conveyance of property. It document. As long as the co – ownership is ended, it is
does not take effect upon its execution. It is not the partition considered as partition.
that transfers property to the heirs but it is succession.
In Lucilo v IAC, there was no written document of partition.
The general rule is that you can enter into contracts regarding But the heirs already occupied specific portions of the estate.
future properties (emption rae speratae) Exception: you They exercised acts of ownership over the specific portions
cannot enter into contracts involving future inheritance (Art. occupied by them. Paid the real estate taxes. Made
1347). improvements therein. Issue: was there partition or still co –
ownership? Partition – because any act intended to put an end
A contract may be classified as a contract upon future to indivision is considered as partition. They already exercised
inheritance, prohibited under the second paragraph of Article exclusive dominion over a certain portion assigned to them. SC
1347, where the following requisites concur: said there was really a partition, an oral partition in this case.
(1) That the succession has not yet been opened; There acts also corroborate the partition.
(2) That the object of the contract forms part of the
inheritance; and Their possession of the inherited property, the construction of
improvements thereon, and having declared in their names for
taxation purposes their respective share are implications that years because this is actually and prohibition of the testator to
the heirs agree to divide the estate among themselves. partition the property and that indivision can only last upto 20
years. And since the 20 years has already lapse, the other
Question: is it required that the partition has to be in writing to heirs has already their right to demand for a partition of the
be enforceable? NO. it is not covered by the Statute of Frauds. property.
(Pada Kilario v CA).
In Santos v Santos, October 12, 2000, it was alleged by Santos
Acts and contracts which have for their object the creation, that he already acquired the properties of his co –heirs by
transmission, modification or extinguishment of real rights over prescription. Can a co – owner acquire the property of the
immovable property; -- that requirement is only for other co – owners by acquisitive prescription? The Supreme
convenience, not for validity or enforceability. Court said, general rule NO because if you are a co – owner
you are holding the property in behalf or in trust of the others.
Partition among the heirs is not a conveyance of the property;
it is just a division, allocation, confirmation or ratification of But there can be a situation where a co –heir can acquire by
title or right that an heir is renouncing in favor of another who acquisitive prescription the property of the others. The
accepts and receives the inheritance. requisites are:
1. Co –owner repudiates the co – ownership.
Article 1083. Every co-heir has a right to demand the 2. Such act of repudiation is clearly made known to the
division of the estate unless the testator should have expressly other co –owners.
forbidden its partition, in which case the period of indivision 3. The evidence is clear and conclusive
shall not exceed twenty years as provided in article 494. This 4. It has to be open, continuous, exclusive possession
power of the testator to prohibit division applies to the for a period required by law.
legitime.
Here, it was not shown that Santos complied with all the
Even though forbidden by the testator, the co-ownership requisites. His act of possessing the property continuously
terminates when any of the causes for which partnership is cannot be taken against his co-heirs.
dissolved takes place, or when the court finds for compelling
reasons that division should be ordered, upon petition of one Again, as long as the heirs are in a state of co – ownership,
of the co-heirs. they cannot acquire the property or shares of the others by
acquisitive prescription.
Remember: No one can be compelled to remain in the state of
co – ownership. Every co – heir has the right to demand the Article 1084. Voluntary heirs upon whom some condition has
division of the estate. Unless the testator should have been imposed cannot demand a partition until the condition
expressly forbidden its partition – remember the testator can has been fulfilled; but the other co-heirs may demand it by
prohibit the partition even the partition of the legitime. giving sufficient security for the rights which the former may
have in case the condition should be complied with, and until
It must be emphasized that there are two limitations or it is known that the condition has not been fulfilled or can
burdens that can be imposed upon the legitime. One is reserve never be complied with, the partition shall be understood to
troncal and the second is the testator can prohibit the partition be provisional.
even the legitimes. But the law says, the power to power to
prohibit the division should not exceed 20 years (Art. 494). Example there are heirs whose institution is subject to a
condition, of course we cannot force the partition if the
In In Re: Petition for probate estate of Santiago, G.R. No. condition has not been complied with. But the other co-heirs
179859, Aug 9, 2010. His will contain the following provision: may demand kung walay condition by posting a sufficient
security.
Ang lupa’t bahay sa Lunsod ng Maynila na nasasaysay sa itaas
na 2(c) ay ililipat at ilalagay sa pangalan nila Ma. Pilar at Article 1085. In the partition of the estate, equality shall be
Clemente hindi bilang pamana ko sa kanila kundi upang observed as far as possible, dividing the property into lots, or
pamahalaan at pangalagaan lamang nila at nang ang sinoman assigning to each of the co-heirs things of the same nature,
sa aking mga anak sampu ng apo at kaapuapuhan ko sa quality and kind.
habang panahon ay may tutuluyan kung magnanais na mag-
aral sa Maynila o kalapit na mga lunsod x x x In partition dapat naay equality.
By virtue of that provision, the title was placed under the name Article 1086. Should a thing be indivisible, or would be much
of Pilar and Clemente. But after 20 years, the other co – heirs impaired by its being divided, it may be adjudicated to one of
petitioned the court to have the property subdivided. Pilar and the heirs, provided he shall pay the others the excess in cash.
Clemente opposed because it was provided in the will that the Nevertheless, if any of the heirs should demand that the thing
property should be under their name and it is not to be owned be sold at public auction and that strangers be allowed to bid,
by anyone. Question: is this provision in the will valid? this must be done.
Supreme Court ruled that it is valid but only for a period of 20
If the thing is indivisible example a car, how can you divide the co-heirs. Then from notification in writing A and B have 30days
car? You can sell it in a public auction and divide the proceeds within which to exercise the right of legal redemption. Kung dili
among yourselves. nila ma.exercise, then maglapse na ang ilahang right of
redemption.
Article 1087. In the partition the co-heirs shall reimburse
one another for the income and fruits which each one of them
may have received from any property of the estate, for any Cabales v CA Aug 31, 2007
useful and necessary expenses made upon such property, and
for any damage thereto through malice or neglect.
October 22, 2014 – RJ and SID
For example, before partition certain heirs have already
Has the period of legal redemption already lapse?
occupied the property and they earned income, or expenses
The prescriptive period of 30days has not yet commence
for the preservation – there is mutual reimbursement here.
because no notice in writing was given to them.
In partition we do not only divide the property, we also
Would actual knowledge or verbal notification suffice? Written
account for the fruits and the income which shall accrue from
notice is indispensable and actual knowledge of the sale
the time of death.
acquired or in some other manner is not sufficient. Written
notice is required to remove any uncertainty as to the sale, its
Article 1088. Should any of the heirs sell his hereditary
terms and its validity and to quiet any doubt that the relation
rights to a stranger before the partition, any or all of the co-
not being definitive, the law not having provided for any
heirs may be subrogated to the rights of the purchaser by
alternative the method of notification will be exclusive.
reimbursing him for the price of the sale, provided they do so
within the period of one month from the time they were
Primary Structures Corp v Sps Valencia, the corporation was
notified in writing of the sale by the vendor.
given the right to redeem the properties from the finality of the
decision of the Supreme Court.
Legal redemption among the co –heirs. Art 1088 applies only
before partition. When will the prescriptive period start to run? From the finality
of the decision
We are talking of a sale by one of the heirs.
From the beginning when there was knowledge of the sale,
Example: would the 30-day period start to run? No, because the written
A B and C are the co - heirs of the testator. notice of sale is mandatory. Settled is the rule that
Before partition, there is still co – ownership, one of the heirs notwithstanding the knowledge of the sale of the co-owners,
sold his hereditary rights to a stranger. Who is a stranger? the latter is entitled to a written notice from the said co-owner
Those which are not their co–heir from the inheritance. seller to remove any uncertainty regarding the sale.
If C sells his HEREDITARY RIGHT, what is being sold here is Even in Alonzo vs. Intermediate Appellate Court (150 SCRA
hereditary right. He cannot sell a specific portion of the 259), relied upon by petitioner in contending that actual
property because there is no partition yet. What is the status knowledge should be an equivalent to a written notice of sale,
of the sale if he sell a specific portion of a property? The sale is the Court made it clear that it was not reversing the prevailing
VOID because when you say co-ownership, you are a co- jurisprudence; said the Court:
owner of every square meter of the property.
"’We realize that in arriving at our conclusion today, we are
Assuming that the same area was allocated to C, then the sale deviating from the strict letter of the law, which the
is now perfectly valid. respondent court understandably applied pursuant to existing
jurisprudence. The said court acted properly as it had no
Even before partition, you can sell your HEREDITARY RIGHT. competence to reverse the doctrines laid down by this Court in
You can sell that even without court authority because it has the above-cited cases. In fact, and this should be clearly
already accrued to you after the death of testator. stressed, we ourselves are not abandoning the De Conejero
and Buttle doctrines. What we are doing simply is adopting an
If C sells his hereditary right, A and B have the right to redeem exception to the general rule, in view of the peculiar
the share from X. Why? Because co-ownership is actually circumstances of this case.’
burdensome. Before you can act in a co –ownership, you have
to consult the other co-owners. They can redeem the share "In Alonzo, the right of legal redemption was invoked several
from X. Take note na ang naay right of redemption kay co – years, not just days or months, after the consummation of the
owners. Si C kay wala na syay right kay sya man ang contracts of sale. The complaint for legal redemption itself was
nagbaligya. there filed more than thirteen years after the sales were
concluded.
When can they redeem and what are the requirements? Kung
gbligya ni C iyang share, he has to notify in writing the other
General Rule: There has to be a written notice of sale; it is a reciprocal warranty, so ipuno kay D and nawala sa iyaha to
cannot be replaced by actual knowledge or verbal notification. the extent na silang upat pareha gihapon na makuha na share.
Purpose: to remove any uncertainty insofar as to the Article 1093. The reciprocal obligation of warranty referred
existence, the terms of the sale and to comply with the to in the preceding article shall be proportionate to the
provision of Article 1088. respective hereditary shares of the co-heirs, but if any one of
them should be insolvent, the other co-heirs shall be liable for
In Alonzo v IAC, the right of legal redemption was invoked his part in the same proportion, deducting the part
more than 13 years. It would be tantamount to abandoning corresponding to the one who should be indemnified.
the right of legal redemption. Laches or estoppel was already Those who pay for the insolvent heir shall have a right of
applied in this case. action against him for reimbursement, should his financial
condition improve.
In Cabales v CA, the right of legal redemption has already
lapsed. We count the 30day period from 1993 after Nelson What if one of the heirs is insolvent? Wala na liability and
sought the barangay conciliation process to redeem his insolvent? In the meantime, his share shall be shouldered by
property. So he delayed, then he filed a complaint for legal the others. but if his financial condition improves, he is the one
redemption in 1995. So in this case the 30day period has obliged to reimburse.
already expired.
Article 1094. An action to enforce the warranty among heirs
Article 1089. The titles of acquisition or ownership of each must be brought within ten years from the date the right of
property shall be delivered to the co-heir to whom said action accrues.
property has been adjudicated.
Prescriptive period to enforce the warranty. E.g. From the time
Halimbawa nagpartition na, kung asa na.adjudicate ang that he ejected from the lot.
property then the property covered by another title the mother
title shall be segregated. Article 1095. If a credit should be assigned as collectible, the
co-heirs shall not be liable for the subsequent insolvency of
Article 1090. When the title comprises two or more pieces of the debtor of the estate, but only for his insolvency at the
land which have been assigned to two or more co-heirs, or time the partition is made.
when it covers one piece of land which has been divided The warranty of the solvency of the debtor can only be
between two or more co-heirs, the title shall be delivered to enforced during the five years following the partition.
the one having the largest interest, and authentic copies of Co-heirs do not warrant bad debts, if so known to, and
the title shall be furnished to the other co-heirs at the expense accepted by, the distributee. But if such debts are not
of the estate. If the interest of each co-heir should be the assigned to a co-heir, and should be collected, in whole or in
same, the oldest shall have the title. part, the amount collected shall be distributed proportionately
among the heirs.
It contemplates a situation where there is still a co-ownership,
there is already partition but the title shall be in the name of First there is warranty as to the solvency of the debtor. For
two or more heirs. example the decedent during his lifetime has certain
collectibles. And that collectible is assigned to A. it turns out
SUBSECTION 2. Effects of Partition that that debtor is insolvent. So naa bay warranty sa iyang
Article 1091. A partition legally made confers upon each heir solvency and ubang heirs? The law says they are only liable for
the exclusive ownership of the property adjudicated to him. the insolvency at the time the partition is made. Kung
halimbawa when the partition is made, insolvent na to si
One consequence of partition – co-ownership is terminated debtor daan then the other heirs have to contribute para
and the heir to whom the property must be given becomes the matagaan gihapon si A. only for the insolvency existing at the
exclusive owner of the property. If there is already a partition, time of partition. Halimbawa nainsolvent after na sa partition,
you can now sell a specific portion of the property. If before in that case the co-heirs are not liable for the subsequent
partition you can only sell your hereditary right, not a specific insolvency.
portion. The period is 5 years following the partition.
Article 1092. After the partition has been made, the co-heirs Bad debts. Kabalo na ka na risky na sya na debt. So di ka sure
shall be reciprocally bound to warrant the title to, and the kung mcollect. If there are bad debts pero gidawat ra gihapon,
quality of, each property adjudicated. kana sya walay warranty ang uban na heirs. Basta kabalo na
sila na bad debt na sya pero gidawat ra gihapon.
Reciprocal warranties as to the title and the property.
Pero pwede pud na automatic written off na ang bad debt para
Example A B C and D are the heirs. They already partitioned dili na masali sa pagshare. But subsequently ncollect diay ang
the property but the portion given to D is problematic. So bad debt, so kung ncollecta, idistribute na pud xa sa co-heirs.
eventually na.eject si D sa property, what will happen? There
Article 1096. The obligation of warranty among co-heirs * note ha, the same thing, if there
shall cease in the following cases: is lesion of at least ¼ it also subject
(1) When the testator himself has made the partition, unless it to rescission
appears, or it may be reasonably presumed, that his intention
was otherwise, but the legitime shall always remain 3. Kung dili mo magkasinabot – judicial partition
unimpaired;
(2) When it has been so expressly stipulated in the agreement Art. 1099. The partition made by the testator cannot be
of partition, unless there has been bad faith; impugned on the ground of lesion, except when the legitime
(3) When the eviction is due to a cause subsequent to the of the compulsory heirs is thereby prejudiced, or when it
partition, or has been caused by the fault of the distributee of appears or may reasonably be presumed, that the intention
the property. of the testator was otherwise. (1075)
In these cases, there is no more obligation or warranty. If the

testator himself made it, so wala tay mabuhat kay ana man Partition made by the testator
gusto sa testator. Kung gitagaan kag bad debt ni testator,
walay warranty, unless the legitime is impaired. In such a GR: even if there is lesion, you cannot impugn the partition.
case, naa gihapon warranty. Even if the testator is the one
who made the partition the legitimes has to be preserved. Why? It is the will of the testator. He can give more or less to
some. It is his prerogative.
Second instance: when there is stipulation in the partition na
walay warranty unless there has been bad faith. XP:
Third instance: after na sa partition nahitabo ang cause. Or it 1. The legitimes are impaired.
is due to the fault of the distributee of the property. 2. His intention was otherwise
In these cases, wala na tong reciprocal warranty. Art. 1100. The action for rescission on account of lesion
shall prescribe after four years from the time the partition
SUBSECTION 3. Rescission and Nullity of Partition was made. (1076)
Article 1097. A partition may be rescinded or annulled for
the same causes as contracts.
Prescriptive period: four years counted from the time of
When can partition be rescinded or annulled? Yes same partition.
grounds in contracts. Because partition is also a contract
between the heirs.
Art. 1101. The heir who is sued shall have the option of
Article 1098. A partition, judicial or extra-judicial, may also indemnifying the plaintiff for the loss, or consenting to a
be rescinded on account of lesion, when any one of the co- new partition.
heirs received things whose value is less, by at least one-
fourth, than the share to which he is entitled, considering the Indemnity may be made by payment in cash or by the
value of the things at the time they were adjudicated. delivery of a thing of the same kind and quality as that
awarded to the plaintiff.
Even if it is a judicial/extrajudicial partition it can be rescinded If a new partition is made, it shall affect neither those who
if there is lesion. But the law says it is by at least 1/4. have not been prejudiced nor those have not received more
Supposing the share is 1m, but he only received 400k in that than their just share. (1077a)
case, there is a lesion. If he received 800k even if there is
lesion but it is not atleast ¼ then he is not entitled to
rescission. Ex. There is partition but there is lesion, his option is:
 Tagaan nalang tika sa sobra sa akoa para wala

So, even if it is Judicial partition, it can be rescinded if there is nalang kay lesion
lesion. Lesion, meaning kulangan iyahang nakuha. The law  There can be a new partition
says it must at least be ¼ of the share that is intended.
Kadtong wala nakadawat ug sobra, dili na to sila hilabtan.
Different kinds of partition: Katong mga wala nakulangan, wala na pud silay apil.
1. Only one heir – you can execute an extrajudicial self Art. 1102. An heir who has alienated the whole or a
adjudication considerable part of the real property adjudicated to him
2. 2 or more – extrajudicial partition cannot maintain an action for rescission on the ground of
lesion, but he shall have a right to be indemnified in cash.
(1078a)
Here, you cannot maintain an action of rescission because the the partition shall not be rescinded but the preterited heir shall
same presupposes mutual restitution. He should return so be paid the value of the share pertaining to her. Again, the
that a new partition can be made. appellate court has thus acted properly in ordering the remand
of the case for further proceedings to make the proper
How can it be made if it was alienated? valuation of the Isarog property and ascertainment of the
amount due petitioner Delia Viado.
Option: tagaan sa kulang sa iyang share, indemnified in
cash. Ok, so we do not disturb the extrajudicial partition already
made. We just give to the excluded heirs what is rightfully his
Art. 1103. The omission of one or more objects or or hers. We have the other heirs who receive more than their
securities of the inheritance shall not cause the rescission of share should contribute to the shares of those excluded.
the partition on the ground of lesion, but the partition shall
be completed by the distribution of the objects or securities RELLIO v. SAN JOSE
which have been omitted. (1079a)
GR 166393 June 18 2009
Preterititon of objects of the partition In this particular case, there was an extra judicial partition
entered into by the heirs. But, they admitted later on that
There are certain properties which are not included in the certain other heirs, the children and great grandchild were
partition, with that exclusion, can we have a new partition? excluded.
NO.
When you enter into an extra judicial partition, you declare, all
Magpartition nalang ta sa walay apil. Ayaw nalang to hilabti of you, you declare that you are the sole heirs of the decedent.
ang partition na nabuhat na.
In this case, they declared that they were the sole heirs but in
Art. 1104. A partition made with preterition of any of the fact they were not sole heirs. So the SC said:
compulsory heirs shall not be rescinded, unless it be proved
that there was bad faith or fraud on the part of the other No extrajudicial settlement shall be binding upon any person
persons interested; but the latter shall be proportionately who has not participated therein or had no notice thereof.
obliged to pay to the person omitted the share which
belongs to him. (1080) Because the other heirs were not notified and because the
ones who entered into the EJ partition misrepresented
themselves as the sole heirs, then the SC said that it is proper
Preterition in the partition. for the court to annul the deed of EJ settlement.
So there is a compulsory heir who was not included in the Here, there was bad faith because misrepresented that they
paritition. were the sole heirs but in fact they knew that they were not.
Thus, it was proper to annul.
Consequence of exclusion:
Pwede pa gani na makasuhan ug perjury ang katong mga nag-
GR: partition will not be rescinded enter ug EJ partition. Under oath bya ng EJ partition. It is a
public instrument.
XP: bad faith or fraud on the part of the other persons
interested. Art. 1105. A partition which includes a person
believed to be an heir, but who is not, shall be void
Consequence is omitted: he will be indemnified to the portion only with respect to such person.
intended for him.
Katong mga nag-exclude sa iyaha, they will contribute so that Kabaliktaran sa 1104. Nay dapat maapil pero wala naapil,
mapunuan ang share sa person excluded in the partition. there is pretertion in the partition.
Case in point: Non vs CA Remember, this is different from the preterition under. There is
also omission of compulsory heirs (854 ha) but the CH are in
The exclusion of petitioner Delia Viado, alleged to be a the direct line. It presupposes that there is a will. Preterition in
retardate, from the deed of extrajudicial settlement verily has the will.
had the effect of preterition. This kind of preterition, however,
in the absence of proof of fraud and bad faith, does not justify In 1104, preterition in the partition. Lahi lahi sya ug
a collateral attack on Transfer Certificate of Title No. 373646. consequence.
The relief, as so correctly pointed out by the Court of Appeals,
instead rests on Article 1104 of the Civil Code to the effect that Again, 1005:
where the preterition is not attended by bad faith and fraud,
Status of the partition: it is void only with respect to such

person.
Case in point: AZNAR BROS. v CA
What will happen here is that they will be excluded and then,
the properties they received shall be returned to the estate
and there shall be a new partition with respect to those
properties.
So it will not affect the entirety of the partition.

Succession TSN 2014

Загружено:

Сведения о документе

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Succession TSN 2014

Загружено:

Авторское право:

Доступные форматы

WILLS AND SUCCESSION LECTURES

Atty. Leilanie Yang-yang-Espejo, CPA

JUNE 23, 2014 properties? These properties without a successor would

For example a person dies, he has several properties,

What are these formalities? It depends. xxx xxx xxx.

 If it is a personal property which values less than Disposition mortis causa.

SIGNED by the above-named donor, Celestina

We now go to rights. Rights may be transmitted by

Right of insurance – The right of insurance can be

(b) EXTRAORDINARY or QUALIFIED PRESUMPTION

Article 391. The following shall be presumed dead for all

According to Organ Donation Act of 1991, Death (actual death)

(2) A person in the armed forces who has taken part

A.Y. 2014 JUSTIN RYAN – RANIZZA – RENIE JAY – SIGRID KIM| 11

c. contractual succession – this is under the Let’s go to 782:

is only up to the extent of the remission. Example:

the disposition of this estate, to take effect after his death.

Soundness of mind is required because of the animus

4. S-OLEMN Unlike donations, where the donor may revoke the

So legal succession will control kay dili man valid ang

9. I-NDIVIDUAL MERZA v. PORRAS

A.Y. 2014 JUSTIN RYAN – RANIZZA – RENIE JAY – SIGRID KIM| 22

not executed in the form of a will. It did not observe the

A.Y. 2014 JUSTIN RYAN – RANIZZA – RENIE JAY – SIGRID KIM| 23

What are these instances where there is intrinsic

** examples are the same in the tsn. Ibang subject matter

1) FROM THE VIEWPOINT OF TIME (Article 795) – it

It is enough that the testator complies with those laws

2) FROM THE VIEWPOINT OF PLACE OR COUNTRY

Again, intrinsic validity pertains to the contents of the will, the

EXERCISE: If the testator is an American Citizen, who is

Ruling: So even if from the face of the will there appears to be

Under Article 797, at least 18 years of age; okay although a

CAGUIOA VS CALDERON – insomnia 1. IDIOTS – IQ average is 25

A.Y. 2014 JUSTIN RYAN – RANIZZA – RENIE JAY – SIGRID KIM| 38

What would be the consequences of that presumption? JAVELLANA VS JAVELLANA

written in English, which was not known to the Igorot testator,

CREDIBLE WITNESSES Credible witnesses are also called SUBSCRIBING WITNESSES/

Let's go to the 4th requirement of a notarial will.

clause of a notarial where the witnesses certify that the

presence of your signature. issue in that case?

We discussed before that the signing by the testator of the will

A.Y. 2014 JUSTIN RYAN – RANIZZA – RENIE JAY – SIGRID KIM| 51

three witnesses; they must be witnesses "who know the

A.Y. 2014 JUSTIN RYAN – RANIZZA – RENIE JAY – SIGRID KIM| 53

There was no opportunity for an expert to compare the

But, a photostatic copy or xerox copy of the holographic will

Why can’t a blind person be a witness? Because to be a 7. As to conviction

These offenses go into the credibility or his capacity to tell the

6. Domiciled in the Philippines It depends upon the reason of pardon.

So what is the consequence of that?

UNLESS, there are other 3 witnesses, because his presence as

What would be the reason why he is disqualified?

There would be a conflict of interest. If he stands to inherit

How about that witness is also a child or a compulsory heir?

As to his legitime, he would still receive his legitime. If he is

A.Y. 2014 JUSTIN RYAN – RANIZZA – RENIE JAY – SIGRID KIM| 58

What if the codicil is void because it fails to comply with the

A.Y. 2014 JUSTIN RYAN – RANIZZA – RENIE JAY – SIGRID KIM| 59

(4) It must be signed by the testator and the witnesses

The requirement is the pages of the document or

Article 829. A revocation done outside the Philippines, by a

b) TEARING – gigisi nimo! Pwede sa kamot, pwede