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WILLS AND

SUCCESSION

CODAL — CIVIL CODE PROVISIONS ON THE LAW OF SUCCESSION


COMPREHENSIVE NOTES ON PROF. BALANE’S BOOK
JURISPRUDENCE BASED ON PROF. BALANE’S SYLLABUS
NOTES ON PROF. BALANE’S LECTURES
NOTES ON THE CHAMP AND RAM SUCCESSION REVIEWERS

IT BEGINS WITH FAITH & CONVICTION, PERSEVERES WITH HARD WORK & DISCIPLINE, AND
ENDS WITH AN IMPASSIONED TRIUMPH WITHIN, WHEN WE REALIZE THAT WE CAN DO ANYTHING
[SEE EPH. 3:20]

#EMBRACETHEGRIND
CHAPTER 1: GENERAL PROVISIONS 7
DEFINITION OF SUCCESSION 7
DEFINITION OF “DECEDENT” AND “TESTATOR” 9
SCOPE OF THE INHERITANCE 10
WHEN THE RIGHTS OF SUCCESSION ARE VESTED 10
KINDS OF SUCCESSION 12
DEFINITION OF HEIRS, DEVISEES AND LEGATEES 13

CHAPTER 2: TESTAMENTARY SUCCESSION 14


SECTION 1: WILLS 14
SUBSECTION 1: WILLS IN GENERAL 14
DEFINITION OF A “WILL” 14
PURELY PERSONAL CHARACTERISTIC OF “MAKING” A WILL 15
RULES OF CONSTRUCTION AND INTERPRETATION OF WILLS 17
GOVERNING LAW AS TO THE FORMAL VALIDITY OF A WILL 19
SUBSECTION 2: TESTAMENTARY CAPACITY AND INTENT 20
RULES ON TESTAMENTARY CAPACITY 20
TESTAMENTARY CAPACITY OF WOMEN 22
SUBSECTION 3: FORMS OF WILLS 22
COMMON REQUIREMENT IN ALL WILLS 23
SPECIAL REQUIREMENTS FOR ATTESTED WILLS: IN GENERAL 24
SPECIAL REQUIREMENTS FOR ATTESTED WILLS: FOR HANDICAPPED TESTATORS 31
SUBSTANTIAL COMPLIANCE FOR ATTESTED WILLS 32
SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: IN GENERAL 35
SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: REQUIREMENT OF WITNESS/WITNESSES 36
SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: IN CASE OF ADDITIONAL DISPOSITIONS 39
SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: AUTHENTICATION IN CASE OF CHANGES 39
SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: PLACE OF EXECUTION IN RELATION TO THE TESTATOR’S NATIONALITY 40
SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: PROHIBITION ON JOINT WILLS 41
SUBSECTION 4: WITNESSES TO WILLS 43
COMPETENCY OF WITNESSES IN ATTESTED WILLS 43
SUPERVENING INCOMPETENCE OF A WITNESS 44
INCAPACITY OF THE WITNESSES TO SUCCEED 44
CREDITORS AS COMPETENT WITNESSES 45
SUBSECTION 5: CODICILS AND INCORPORATION BY REFERENCE 45
DEFINITION OF A CODICIL 45
VALIDITY OF CODICILS 45
VALIDITY OF INCORPORATED DOCUMENTS OR PAPERS TO AN ATTESTED WILL 46
SUBSECTION 6: REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS 47
PROHIBITION ON WAIVER OR RESTRICTION ON THE RIGHT TO REVOKE A WILL 47
RULES AS TO THE PLACE OF REVOCATION 47
MODES OF REVOCATION 47
EFFECTIVITY OF THE REVOCATION CLAUSE IN CASE OF REVOCATION BY SUBSEQUENT WILL 50
REVOCATION BASED ON FALSE OR ILLEGAL CAUSES 52
RECOGNITION OF PATERNITY IN A WILL 54
SUBSECTION 7: REPUBLICATION AND REVIVAL OF WILLS 54
REPUBLISHING OR REVIVING A VOID OR REVOKED WILL 54

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REVOCATION OF A SUBSEQUENT “REVOKING” WILL DOES NOT REVIVE THE REVOKED PRIOR WILL 55
SUBSECTION 8: ALLOWANCE AND DISALLOWANCE OF WILLS 56
PROBATE AS A MANDATORY REQUIREMENT TO A WILL’S EFFECTIVITY 56
GROUNDS FOR DISALLOWANCE OF WILLS INTO PROBATE 59
SECTION 2: INSTITUTION OF HEIR 61
DEFINITION OF INSTITUTION OF HEIRS 61
VALIDITY OF THE WILL DESPITE ABSENCE OR LACK OF INSTITUTION OR UNWILLING OR UNWORTHY HEIRS 61
HOW MUCH MAY BE DISPOSED OF BY WILL 62
MANNER OF INSTITUTION OR DESIGNATION OF THE HEIRS, DEVISEES OR LEGATEES 62
INSTITUTION OF HEIRS COLLECTIVELY WITHOUT DESIGNATION OF SHARES 64
INSTITUTION OF HEIRS INDIVIDUALLY AND COLLECTIVELY WITHOUT DESIGNATION OF SHARES 64
INSTITUTION OF BROTHERS OR SISTERS 65
INSTITUTION BASED ON FALSE CAUSES 66
WHEN THE WHOLE ESTATE IS NOT COVERED BY THE INSTITUTIONS 67
WHEN THE WHOLE ESTATE IS INTENDED TO BE DISPOSED OF BUT THE INSTITUTIONS DO NOT COVER THE ENTIRE PORTION 67
PRETERITION; OMISSION OF THE COMPULSORY HEIRS, IN THE DIRECT LINE, FROM THE INHERITANCE 68
COMPLETION OF LEGITIME 73
NON-TRANSMISSION OF SUCCESSIONAL RIGHTS IN CASES OF PRE-DECEASE, INCAPACITY, OR RENUNCIATION 74
SECTION 3: SUBSTITUTION OF HEIR 76
DEFINITION OF SUBSTITUTION 76
KINDS OF SUBSTITUTION 77
SIMPLE/COMMON (VULGAR) SUBSTITUTION 77
BRIEF OR COMPENDIOUS SUBSTITUTION 78
RECIPROCAL SUBSTITUTION 79
SUBSTITUTE SUBJECT TO THE SAME CONDITIONS IMPOSED ON THE HEIRS 79
FIDEICOMMISSARY SUBSTITUTION 79
FIDEICOMMISARY SUBSTITUTION CANNOT PREJUDICE THE LEGITIME 82
MANNER OF PROVIDING FOR FIDEICOMMISSARY SUBSTITUTIONS 82
RIGHT OF THE FIDEICOMMISSARY VESTS AT THE TIME OF THE TESTATOR'S DEATH 82
INEFFECTIVE PROVISIONS IN A WILL 83
EFFECTIVE OF INVALIDITY OR INEFFECTIVITY OF THE FIDEICOMMISSARY SUBSTITUTION 84
INSTITUTION OF SUCCESSIVE USUFRUCTUARIES 85
LIMIT ON INALIENABILITY OF THE INHERITANCE 85
SECTION 4: TESTAMENTARY DISPOSITIONS WITH A CONDITION OR TERM 86
KINDS OF TESTAMENTARY DISPOSITIONS 86
TESTAMENTARY PROVISIONS CANNOT PREJUDICE THE LEGITIME 86
CONDITIONAL DISPOSITIONS 87
IMPOSSIBLE AND ILLEGAL CONDITIONS 87
CONDITIONS WHICH PROHIBIT MARRIAGE 88
LEGACY-HUNTING DISPOSITIONS 88
POTESTATIVE, CASUAL AND MIXED CONDITIONS 89
WHEN THE PROPERTY IS TO BE PLACED UNDER ADMINISTRATION 90
DISPOSITIONS WITH A TERM 91
WHEN HEIR’S RIGHT VESTS IN DISPOSITIONS WITH A TERM 91
SUSPENSIVE OR RESOLUTORY TERMS 91
MODAL DISPOSITIONS 92
WHEN AN INSTITUTION CANNOT TAKE EFFECT IN THE EXACT MANNER STATED BY THE TESTATOR 93

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SECTION 5: LEGITIME 93
DEFINITION OF LEGITIME 93
COMPULSORY HEIRS 94
LEGITIMARY PORTIONS AND COMBINATIONS 98
LEGITIME OF LEGITIMATE CHILDREN AND DESCENDANTS 100
LEGITIME OF LEGITIMATE PARENTS AND ASCENDANTS 100
LEGITIME OF LEGITIMATE CHILDREN/DESCENDANTS AND THE SURVIVING SPOUSE 101
LEGITIME OF LEGITIMATE PARENTS/ASCENDANTS AND THE SURVIVING SPOUSE 102
LEGITIME OF ILLEGITIMATE CHILDREN AND THE SURVIVING SPOUSE 102
LEGITIME OF LEGITIMATE AND ILLEGITIMATE CHILDREN/DESCENDANTS AND THE SURVIVING SPOUSE 102
LEGITIME OF LEGITIMATE PARENTS AND ILLEGITIMATE CHILDREN/DESCENDANTS 103
LEGITIME OF LEGITIMATE PARENTS, ILLEGITIMATE CHILDREN/DESCENDANTS, AND THE SURVIVING SPOUSE 103
LEGITIME OF THE SURVIVING SPOUSE (AS SOLE COMPULSORY HEIR) 104
LEGITIME OF ILLEGITIMATE CHILDREN/DESCENDANTS (AS SOLE COMPULSORY HEIRS) 104
LEGITIME OF ILLEGITIMATE PARENTS AND SURVIVING SPOUSE 105
RESERVA TRONCAL 105
DECEDENT CANNOT DEPRIVE THE COMPULSORY HEIRS OF, OR BURDEN THE LEGITIME 117
RENUNCIATION AND COMPROMISE OF FUTURE LEGITIME BETWEEN THE DECEDENT AND HIS COMPULSORY HEIR 118
DETERMINATION OF THE NET HEREDITARY ESTATE 119
TRANSFERS CONSIDERED PART OF THE LEGITIME 120
SATISFACTION OF IMPAIRED LEGITIME; METHOD OF REDUCTION 122
FREE AND DISPOSABLE PORTION 124
SECTION 6: DISINHERITANCE 124
EFFECT OF DISINHERITANCE 124
HOW DISINHERITANCE SHOULD BE EFFECTED 125
BURDEN OF PROVING THE CAUSE FOR DISINHERITANCE 125
INEFFECTIVE DISINHERITANCE 125
CAUSES FOR DISINHERITANCE OF CHILDREN OR DESCENDANTS 125
CAUSES FOR THE DISINHERITANCE OF PARENTS OR ASCENDANTS 127
CAUSES FOR THE DISINHERITANCE OF SURVIVING SPOUSE 129
SUBSEQUENT RECONCILIATION 130
RIGHT OF REPRESENTATION IN DISINHERITANCE 131
SECTION 7: LEGACIES AND DEVISES 132
DEFINITION OF LEGACIES AND DEVISES 132
TO WHOM THE LEGACY/DEVISE IS CHARGED 132
SOLIDARY LIABILITY OF CO-HEIRS TO DEVISEE/LEGATEES 133
WARRANTY IN CASE OF EVICTION 133
LEGACY/DEVISE OF A THING OWNED IN PART BY THE TESTATOR; LEGACY/DEVISE OF A THING OWNED BY ANOTHER134
LEGACY/DEVISE OF A THING ALREADY OWNED OR SUBSEQUENTLY ACQUIRED BY THE DEVISEE/LEGATEE 135
LEGACY/DEVISE TO REMOVE AN ENCUMBRANCE 135
LEGACY OF A CREDIT OR REMISSION 136
LEGACY/DEVISE TO A CREDITOR; TESTAMENTARY INSTRUCTION TO PAY A DEBT 137
ALTERNATIVE LEGACIES 138
GENERIC LEGACIES AND DEVISES 139
LEGACY FOR EDUCATION AND SUPPORT 140
LEGACY OF A PERIODICAL PENSION 140
DEMANDABILITY, OWNERSHIP, AND FRUITS OF LEGACIES/ DEVISES 141

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RULES OF PREFERENCE IN DEVISE/LEGACIES 142
OBLIGATION TO DELIVER THE ACCESSIONS AND ACCESSORIES 143
OBLIGATION TO DELIVER THE THING ITSELF OR CASH; EXPENSES OF DELIVERY 143
ACCEPTANCE AND REPUDIATION OF LEGACIES/DEVISES 144
REPUDIATION BY OR INCAPACITY OF LEGATEE/DEVISEE 145
GROUNDS FOR THE REVOCATION OF LEGACY/DEVISE BY OPERATION OF LAW 145
MISTAKE AS TO THE NAME OF THE THING AS DEVISE/LEGACY 146
DISPOSITION MADE IN GENERAL TERMS IN FAVOR OF THE TESTATOR'S RELATIVES 146

CHAPTER 3: LEGAL OR INTESTATE SUCCESSION 147


SECTION 1: GENERAL PROVISIONS 147
WHEN INTESTATE SUCCESSION TAKES PLACE 147
BASIC RULES OF INTESTACY 148
SUBSECTION 1: RELATIONSHIP 150
DETERMINATION OF LINES AND COMPUTATION OF DEGREES 150
FULL AND HALF-BLOOD RELATIONSHIP 152
RIGHT OF ACCRETION IN INTESTACY 152
RENUNCIATION BY ALL IN THE SAME KIND 153
SUBSECTION 2: RIGHT OF REPRESENTATION 155
SECTION 2: ORDER OF INTESTATE SUCCESSION 159
INTESTATE HEIRS 159
EXCLUSION AND CONCURRENCE OF INTESTATE HEIRS; COMBINATIONS IN INTESTATE SUCCESSION 159
PARTIAL INTESTACY 164
SUBSECTION 1: DESCENDING DIRECT LINE 165
SUBSECTION 2: ASCENDING DIRECT LINE 166
SUBSECTION 3: ILLEGITIMATE CHILDREN 166
SUBSECTION 4: SURVIVING SPOUSE 169
SUBSECTION 5: COLLATERAL RELATIVES 170
SUBSECTION 6: THE STATE 171

CHAPTER 4: PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSION 173


SECTION 1: RIGHT OF ACCRETION 173
DEFINITION OF ACCRETION 173
ACCRETION IN TESTAMENTARY SUCCESSION 174
RIGHT OF ACCRETION IN INTESTACY 175
RULE OF PROPORTIONALITY IN ACCRETION 176
EFFECT OF ACCRETION 176
NO ACCRETION IN THE LEGITIME 176
SECTION 2: CAPACITY TO SUCCEED BY WILL OR BY INTESTACY 177
CAPACITY TO SUCCEED IN GENERAL 177
CAPACITY TO SUCCEED FOR NATURAL PERSONS 177
CAPACITY TO SUCCEED FOR JURIDICAL PERSONS 178
GROUNDS FOR INCAPACITY TO SUCCEED IN TESTAMENTARY SUCCESSION 178
EFFECT OF CERTAIN TESTAMENTARY DISPOSITIONS 181
INCAPACITY BY REASON OF UNWORTHINESS TO SUCCEED 182
RESTORATION TO CAPACITY 184
WHEN CAPACITY TO SUCCEED MUST BE DETERMINED 185

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REPRESENTATION IN UNWORTHINESS 186
RULES REGARDING THE INCAPACITATED HEIR 186
LAW GOVERNING THE CAPACITY TO SUCCEED 188
SECTION 3: ACCEPTANCE AND REPUDIATION OF THE INHERITANCE 188
ACCEPTANCE OR REPUDIATION AS A FREE AND VOLUNTARY ACT 188
RETROACTIVE EFFECT OF ACCEPTANCE OR RENUNCIATION 188
WHEN ACCEPTANCE OR REPUDIATION SHOULD BE MADE 189
CAPACITY TO ACCEPT OR REPUDIATE; WHO CAN ACCEPT OR RENOUNCE 189
FORMS OF ACCEPTANCE; HOW ACCEPTANCE IS MADE 190
FORMS OF REPUDIATION; HOW REPUDIATION IS MADE 192
REPUDIATION IN FRAUD OF CREDITORS; ACCION PAULIANA 192
TRANSMISSIBILITY OF THE RIGHT TO REPUDIATE 192
REPUDIATION IN CASE OF HEIR INHERITS BY TESTACY AND INTESTACY 193
IRREVOCABILITY OF ACCEPTANCE AND REPUDIATION 194
SECTION 4: EXECUTORS AND ADMINISTRATORS 194
SECTION 5: COLLATION 195
COLLATION AS COMPUTATION 195
COLLATION AS IMPUTATION 196
COLLATION IN THE SENSE OF RETURN 201
WHEN THERE IS CONTROVERSY IN THE COLLATION 203
SECTION 6: PARTITION AND DISTRIBUTION OF ESTATE 204
SUBSECTION 1: PARTITION 204
DEFINITION OF PARTITION 204
KINDS OF PARTITION 205
PARTITION BY THE CAUSANTE (DECEDENT) HIMSELF 206
WHEN THIRD PERSON (MANDATARY) MAY MAKE THE PARTITION 208
RIGHT OF THE HEIRS TO DEMAND PARTITION 209
PARTITION IN CASE TESTAMENTARY DISPOSITIONS ARE SUBJECT TO SUSPENSIVE CONDITIONS 210
RULE OF EQUALITY IN PARTITION 211
REIMBURSEMENT OF EXPENSES IN PARTITION 211
SALE OF HEREDITARY SHARE BEFORE PARTITION; RIGHT OF REDEMPTION BY OTHER CO-HEIRS 212
DELIVERY OF THE TITLE OF OWNERSHIP TO THE CO-HEIRS 213
SUBSECTION 2: EFFECTS OF PARTITION 213
TERMINATION OF CO-OWNERSHIP 213
CO-HEIRS OBLIGATION OF MUTUAL WARRANTY 213
SUBSECTION 3: RESCISSION AND NULLITY OF PARTITION 215
GROUNDS FOR RESCISSION AND ANNULMENT OF CONTRACTS 215
OBLIGATION OF CO-HEIR SUED FOR RESCISSION 216
INCOMPLETENESS OF PARTITION; SUPPLEMENTAL PARTITION 217
OMISSION OF CO-HEIR FROM THE PARTITION 217
INCLUSION OF A PERSON WHO IS NOT AN HEIR IN THE PARTITION 217

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CHAPTER 1: GENERAL PROVISIONS
CHAPTER 1: GENERAL PROVISIONS

DEFINITION OF SUCCESSION

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

Article 712. Ownership is acquired by occupation and by intellectual creation.


Ownership and other real rights over property are acquired and transmitted by law, by donation, by testate and intestate
succession, and in consequence of certain contracts, by tradition.
They may also be acquired by means of prescription. (609a)

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

Article 1311. Contracts take effect only between the parties, their assigns and heirs, except in case where the rights and
obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir
is not liable beyond the value of the property he received from the decedent.

SUCCESSION AS A MODE OF ACQUISITION


‣ The Civil Code treats succession simply as a mode of acquiring ownership

‣ It is one of the 7 legally recognized modes of acquiring ownership under Art. 712

‣ Original Modes (because there was no “immediate” previous owner)

1. Occupation

2. Intellectual Creation

‣ Derivative Modes (title is derived from an immediate previous owner)

1. Law

2. Donation

3. Testate and Intestate Succession


4. Tradition (in consequence of certain contracts)

‣ Mixed Mode (because it’s hard to classify it, prescription is not strictly original, nor derivative)

1. Prescription

OVERLAP OF CODAL DEFINITION WITH ART. 776


‣ Reading Art. 774 and 776 will show an overlap of the two provisions

‣ Art. 776 defines the “inheritance” of a person

‣ Art. 774 talks of “property, rights and obligations to the extent of the value of the inheritance”, Art. 776, on the other hand,
talks of the “inheritance” as including “all the property, rights and obligations of a person which are not extinguished by
his death”

‣ BALANE: “For better clarity and correlation, Art. 774 should be read as: Succession is a mode of acquisition by virtue of
which the inheritance of a person is transmitted through his death to another or others either by his will or by operation of
law”
‣ And the inheritance which is transmitted is defined by Art. 776 to include “all the property, rights and obligations of a
person which are not extinguished by his death”

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CHAPTER 1: GENERAL PROVISIONS
WHAT ARE TRANSMITTED?
‣ RULE: ONLY TRANSMISSIBLE RIGHTS, PROPERTIES AND OBLIGATIONS PASS BY SUCCESSION.
‣ What are intransmissible rights?
‣ If the right or obligations is strictly personal (by stipulation, law or by its nature), then it is intransmissible.

‣ Personal rights (intuitu personae) die with the decedent

‣ Thus, only non-personal rights and obligations are transmissible through succession

LIMITATION IN ART. 774 ON THE OBLIGATIONS TRANSMITTED TO THE HEIR


‣ RULE: The heir CANNOT be held liable beyond the inheritance received

RULE REGARDING PECUNIARY OBLIGATIONS OR MONEY DEBTS


‣ The rule for money debts, is that the creditors must file a claim against the estate (not the heirs). Thus, in our
system, money debts are seemingly not transmitted to the heirs nor paid by them. The estate pays them, it is only
what is left after the debts are paid that are transmitted to the heirs.
‣ Money obligations of the deceased, under Art. 774, will pass to the heirs to the extent that they inherit from him.
Seemingly therefore, this article mandates that the heirs receive the estate, and then pay off creditors.

‣ Procedural law (Rule 88 to 90, Rules of Court) however, provide that it is only after the debts are paid that the residue
of the estate is distributed among the successors. (So, under ROC, the estate pays off the creditors first then what is
left goes to the successors)

‣ What is significant about this?


‣ A question on when hereditary rights of the sucessors will vest. Do the successors acquire the whole of the
transmissible assets and liabilities of the decedent by and upon his death, or do they only acquire a residuum
remaining after payment of the debts, as implied by the Rules of Court? Or do they acquire only the naked title at the
debt of the decedent, but with possession or enjoyment vested in the administrator or personal representative until
after the settlement of the claims against the estate?

‣ Art. 774 expressly provides and the SC confirms that by virtue of succession, the property, rights and obligations,
to the extent of the value of the inheritance of a person, are transmitted by and at the moment of his death,
implying a transfer at that instant of the totality or universality of assets and liabilities.

‣ Several divergent rules on this point which should be clarified when the code is revised (JBL Reyes)

ART. 774 AND 776 SEEMS TO CLASH WITH THE RULES OF COURT; HARMONIZATION
‣ This pertains to the rule on when successional rights vest and its necessary implications and consequences.

‣ Logic from Art. 774/776: You can directly sue the heirs for obligations of the decedent. This is because, since the
successional rights vest on them, at the time of the death of the testator

‣ Rule 90, Rules of Court: You must sue the estate otherwise, the claim will be barred.

‣ Once the decedent dies, the estate passes through a judicial process and the creditors of the decedent must present
their claims in the court, otherwise it will be barred. It is only when the debts and expenses of administration and the
inheritance taxes have been paid, and after the satisfaction of creditors will the remaining residue of the estate or the
net estate pass through the heirs

‣ BALANE: Art. 774 and 776 seems to clash with the Rules of Court.. Because Art. 774 and 776 are based on Spanish and
Roman Law. Rules of Court is based on American Law. These are divergent systems that clash. How do you harmonise
this? Given that as a rule, substantive law should prevail over procedural law? See the next few cases
‣ UNION BANK VS. SANTIBANEZ 452 SCRA 228 [2005]
‣ The filing of a money claim against the decedent’s estate in the probate court is MANDATORY. This requirement
is for the purpose of protecting the estate of the deceased by informing the executor or administrator of the claims
against it, thus enabling him to examine each claim and to determine whether it is a proper one which should be
allowed. The plain and obvious design of the rule is the speedy settlement of the affairs of the deceased and the early
delivery of the property to the distributees, legatees, or heirs. The law strictly requires the prompt presentation and
disposition of the claims against the decedent’s estate in order to settle the affairs of the estate as soon as possible,
pay off its debts and distribute the residue.

‣ BALANE: Only the payment of money debts has been affected by the Rules of Court. The transmission of other
obligations not by nature purely personal follows the rule laid down in Article.
‣ ESTATE OF K.H. HEMADY VS. LUZON SURETY 100 PHIL. 389 (1956)

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CHAPTER 1: GENERAL PROVISIONS
‣ Under the present Civil Code (Article 1311), the rule is that— “Contracts take effect only as between the parties, their
assigns and heirs, except in the case where the rights and obligations arising from the contract are not transmissible
by their nature, or by stipulation or by provision of law.”

‣ While in our successional system the responsibility of the heirs for the debts of their decedent cannot exceed the
value of the inheritance they receive from him, the principle remains intact that these heirs succeed not only to the
rights of the deceased but also to his obligations. Articles 774 and 776 expressly so provide, thereby confirming
Article 1311 already quoted.

‣ Under the Civil Code the heirs, by virtue of the rights of succession are subrogated to all the rights and
obligations of the deceased and can not be regarded as third parties with respect to a contract to which the
deceased was a party, touching the estate of the deceased. The principle on which these rest is not affected
by the provisions of the new Code of Civil Procedure, and, in accordance with that principle, the heirs of the
deceased person cannot be held to be “third persons” in relation to any contracts touching the real estate of
their decedent which comes in to their hands by right of inheritance; they take such property subject to all the
obligations resting thereon in the hands of him from whom they derive their rights
‣ The binding effect of contracts upon the heirs of the deceased party is not altered by the provision in our Rules
of Court that money debts of a deceased must be liquidated before the residue is distributed among said heirs
(Rule 89). The reason is that whatever payment is thus made from the estate is ultimately a payment by the
heirs and distributees, since the amount of the paid claim in fact diminishes or reduces the shares that the
heirs would have been entitled to receive.
‣ Under our law, therefore, the general rule is that a party’s contractual rights and obligations are transmissible to the
successors. The rule is a consequence of the progressive “depersonalization” of patrimonial rights and duties that,
has characterized the history of these institutions. From the Roman concept of a relation from person to person, the
obligation has evolved into a relation from patrimony to patrimony, with the persons occupying only a representative
position, barring those rare cases where the obligation Is strictly personal, i.e., is contracted intuitu personae, in
consideration of its performance by a specific person and by no other. The transition is marked by the disappearance
of the imprisonment for debt.

‣ BALANE: This case harmonizes the conflict between Art. 774 and 776 and the Rules of Court as to when the vesting of
the successional right takes place. Court in said there is no conflict between the Civil Code and the Rules of Court. It
said that, ultimately the result will be the same anyway. Although the heirs are not immediately and directly liable,
ultimately they were still held liable since what they got from the estate, was reduced. So, successional rights
still vested on the heirs upon the death of the decedent, but it needs to go through liquidation and distribution
in court and pay off the decedent's creditors before the net estate passes to the heirs. Payments made by the
estate are deemed payments made by the heirs. Although the heirs are not immediately and directly liable,
ultimately they were still held liable since what they got from the estate, was reduced.
‣ ALVAREZ VS. INTERMEDIATE APPELLATE COURT 185 SCRA 8 (1990)
‣ This case reiterates the ruling in Hemady

‣ That heirs 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 hereditary estate, and we have ruled that the hereditary
assets are always liable in their totality for the payment of the debts of the estate. The heirs are liable only to the
extent of the value of their inheritance.

TRANSMISSIBLE OBLIGATIONS OTHER THAN MONEY DEBTS


‣ Not all transmissible obligations are money debts

‣ Such as, in a contract of lease, there is an obligation to return the subject-matter of the lease upon expiration of the lease
period. Since the right to the lease of the lessor passes to his heirs, the corresponding obligation to return the property to
the lessee, upon expiration of the lease, also passes to the heirs

DEFINITION OF “DECEDENT” AND “TESTATOR”

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

‣ General term of the person who dies, whether or not he left a will: “Decedent”

‣ If the decedent left a will: Also called as a “Testator”

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CHAPTER 1: GENERAL PROVISIONS
‣ BALANE: It is unfortunate that the Code does not use the term “intestate” to refer to a decedent who died without a will.
This would have prevented the ambiguity now inherent in the term “decedent”

SCOPE OF THE INHERITANCE

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

Article 781. The inheritance of a person includes not only the property and the transmissible rights and obligations
existing at the time of his death, but also those which have accrued thereto since the opening of the succession. (n)

BALANE: Art. 781 should be deleted as it only confuses.

WHAT DOES THE INHERITANCE INCLUDE?


‣ RULE: THE INHERITANCE INCLUDES ONLY INCLUDES ALL THE TRANSMISSIBLE PROPERTY, RIGHTS AND OBLIGATIONS OF A
PERSON. WHATEVER ACCRUES AFTER THE DECEDENT’S DEATH (WHICH IS WHEN THE SUCCESSION OPENS) BELONGS TO THE
HEIR, NOT BY VIRTUE OF SUCCESSION, BUT BY VIRTUE OF OWNERSHIP, SPECIFICALLY BY RIGHT OF ACCESSION.

‣ This includes fruits (civil, natural and industrial) which accrue after death.

‣ The inheritance passes at the moment of death (Art. 777) to the heirs by virtue of succession, but the fruits of the
inheritance pass to the heirs by virtue of accession.

‣ The fruits which have accrued since the opening of the succession are really, NOT part of the inheritance, they are
fruits of the inheritance.

‣ BALANE: To say that the fruits are part of the inheritance means that the succession takes place beyond the
moment of death of the decedent, which is wrong. Art. 781 is a new provision which should not have been added.
‣ What are part of the inheritance?
‣ Only his patrimony the decedent owns the time of his death. Only his properties, rights and obligations existing at
the time of his death. Those properties which are not owned by the decedent at the time of his death are no longer
part of his inheritance. This is shown in the Balus Case

‣ BALUS VS BALUS G.R. NO. 168970, JAN. 15, 2010


‣ The rights to a person's succession are transmitted from the moment of his death. In addition, the inheritance of a
person consists of the property and transmissible rights and obligations existing at the time of his death (by virtue of
succession), as well as those which have accrued thereto (by virtue of ownership) since the opening of the succession.

‣ In this case, since the testator lost ownership of the subject property during his lifetime, it only follows that at the time
of his death, the disputed parcel of land no longer formed part of his estate to which his heirs may lay claim. Stated
differently, the heirs never inherited the subject lot from their father.

WHEN THE RIGHTS OF SUCCESSION ARE VESTED

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

Art. 777 is the most important provision in Succession and one of the most important provisions in Civil Law!

“VESTED” IS THE MORE APPROPRIATE TERM


‣ BALANE: The terminology is infelicitous because the right to succession is not transmitted, it becomes “vested”. To say
that is is transmitted implied that before the decedent’s death, the right to the succession was possession by the
decedent, which is absurd. To say it vests upon death implies that before the decedent’s death, the right was merely
inchoate.

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TIME OF VESTING OF THE SUCCESSIONAL RIGHT
‣ Art. 777 merely specifies that time of vesting of the successional right

‣ The ownership to the estate of the decedent is immediately vested to the heirs at the time of the death of the decedent.

‣ Art. 777 is not literally true as the heirs do not immediately receive the successional rights. But it is not pure fiction as the
heirs receive certain “vested” rights.

‣ It presumes that the person succeeding:

1. Has a right to succeed by legitime (compulsory succession), by will (testamentary succession), or by law (intestate
succession)

2. Has the legal capacity to succeed

3. Accepts the succession

‣ Rights to succession are vested from the moment of death, not upon the filing of petition for testate/ intestate
proceedings, not upon the declaration of heirship or upon settlement of the estate.

‣ The rights to succession are automatic. Tradition or delivery is not needed. Fiction of the law is that from the moment of
the death of the decedent, the right passes to the heirs.

‣ During the lifetime of the predecessor, rights to succession are a mere expectancy. Hence, no contract can be legally
entered into regarding the expected inheritance. When a heir receives his inheritance, he is deemed to have received it at
the point of death. this is so by legal fiction to avoid confusion.

‣ BALANE: It should be emphasized that the operation of Article 777 is at the very moment of the decedent’s death; the
transmission by succession occurs at the precise moment of death and therefore the heir, devisee, or legatee is legally
deemed to have acquired ownership at that moment (even if, particularly in the heir’s case, he will generally not know how
much he will be inheriting and what properties he will ultimately be receiving), and not at the time of declaration of heirs, or
partition, or distribution.

CONSEQUENCES WHICH FOLLOW THE PRINCIPLE OF “IMMEDIATE VESTING”


1. LAWS IN FORCE AT THE TIME OF THE DECENDENT’S DEATH WILL DETERMINE WHO THE HEIR SHOULD BE
‣ USON VS. DEL ROSARIO 92 PHIL. 530 (1953)
‣ Rights which are declared for the first time shall have retroactive effect even though the event which gave rise to
them may have occurred under the former legislation, but this is so only when the new rights do not prejudice any
vested or acquired right of the same origin.

‣ If a right should be declared for the first time in this Code, it shall be effective at once, even though the act or
event which gives rise thereto may have been done or may have occurred under the prior legislation, provided said
new right does not prejudice or impair any vested or acquired right, of the same origin.’

‣ In this case, the right of ownership of the heir (Maria Uson) over the lands in question became vested in 1945 upon
the death of her late husband and this is so because of the imperative provision of the law which commands that
the rights to succession are transmitted from the moment of death. Thus, what should govern is the provision in
the old civil code, since the testator's death took place during that time

‣ The new right recognized by the new Civil Code in favor of the illegitimate children of the deceased cannot,
therefore, be asserted to the impairment of the vested right of Maria Uson over the lands in dispute.

‣ In other words, when the testator died in 1945, the illegitimate children were not heirs yet, since the law in force
during that time was the Old Civil Code which does not give successional rights to illegitimate heirs.
2. OWNERSHIP PASSES TO THE HEIR AT THE VERY MOMENT OF DEATH, WHO THEREFORE, FROM THAT MOMENT, ACQUIRES THE
RIGHT TO DISPOSE OF HIS SHARE

‣ DE BORJA VS. VDA. DE BORJA 46 SCRA 577 (1972)


‣ The right to inherit is vested at the moment of death. Even if an heir did not know how much she was going to
inherit, she could still dispose of her share in the inheritance. Said right to the share was hers from the moment of
death and she could do whatever she wanted with her share, even sell it.
‣ ALFONSO VS ANDRES G.R. NO. 166236, JULY 29, 2010
‣ Significantly, the title of the property owned by a person who dies intestate passes at once to his heirs. Such
transmission is subject to the claims of administration and the property may be taken from the heirs for the
purpose of paying debts and expenses, but this does not prevent an immediate passage of the title, upon the
death of the intestate, from himself to his heirs

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‣ BALANE: The heir can already sell his share of the estate even before it is finally determined (by testate or intestate
procedings) how much is he going to get. Note that the heir can only sell/dispose of “his share” the undivided estate.
He cannot sell specific items because, at this point, such is still undetermined.
3. THE HEIRS HAVE THE RIGHT TO BE SUBSTITUTED FOR THE DECEASED AS PARTY IN AN ACTION THAT SURVIVES
‣ BONILLA VS. BARCENA 71 SCRA 491 (1976)
‣ Right to prosecute an action that survives (in this case it was based on quieting of title) is transmitted to the heirs,
at the moment of the death of the decedent. No declaration of heirship is necessary because of the immediate
vesting principle.

‣ But, if the identity of the heirs is disputed, a declaration of heirship is necessary as seen in the case of Yap In Chay
vs Del Rosario where 2 groups were disputing who the heirs where.

‣ REPUBLIC VS MARCOS
‣ Heirs of the former dictator were impleaded as real parties in interest, in forfeiture cases against the former
dictator.
‣ Prior settlement of the estate is not necessary for the heirs to commence an action pertaining to the decedent. In
this case, it was an action for partition involved.

4. AN IMPLIED CO-OWNERSHIP ARISES BETWEEN THE HEIRS AS TO THE UNDIVIDED PORTION OF THE ESTATE AT THE MOMENT OF
THE DEATH OF THE DECEDENT. AND IF SUCH HEIR/CO-OWNER DIES, THEN HIS INTEREST OF THE ESTATE IS FURTHER
TRANSMITTED TO HIS HEIRS WHO BECOME CO-OWNERS OF THE UNDIVIDED PORTION OF HIS INTEREST.

‣ INING VS DE VEGA G.R. NO. 174727, AUGUST 12, 2013


‣ In this case, the estate was not settled, and the co-owner properties passed on to different generations without
being divided, thus, a lot of co-owners were involved. Co-owners died and their respective heirs became co-
owners, and so on, this is based on the principle that the rights to the succession are transmitted from the moment
of death.

KINDS OF SUCCESSION

Article 778. Succession may be:


1. Testamentary;
2. Legal or intestate; or
3. Mixed. (n)

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

Article 780. Mixed succession is that effected partly by will and partly by operation of law. (n)

KINDS OF SUCCESSION
‣ Art. 778 enumerates 3 kinds of succession, the first (testamentary) and the third (mixed) are described in the two
succeeding articles.

‣ Legal or intestate succession is not defined.

‣ BALANE: The draft of the Code contained a definition of this kind of succession which seems to have gotten lost in the
legislative mill
‣ “Intestate or legal succession takes place by operation of law in the absence of a valid will.”

‣ The enumeration cannot satisfactorily accommodate the system of “legitimes”

‣ Legitimes does not fit in with legal or intestate succession because it operates only in default of a will while legitime
operates whether or not there is a will, in fact it prevails over a will. Also, there are instances when the rules on legitime
(Art. 887) operate, to the exclusion of the rules of intestacy (Art. 960)

‣ BALANE: Legitime should be classified as a separate and distinct kind of succession and can be denominated as
“compulsory succession”
‣ Kinds of Succession (according to order of importance):

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1. COMPULSORY:
‣ Succession to the legitime (This prevails over all other kinds)

2. TESTAMENTARY
‣ Succession by will

3. INTESTATE OR LEGAL
‣ Succession in default of a will

‣ "In default of a will" does not mean the absence of a will. Intestate succession can take place even if there is a will,
such as when the will does not dispose of all the disposable property of the decedent,, in such case, the will
defaulted as to the remaining property not covered by it.

‣ MIXED
‣ Combination of any two or all of the first three

‣ BALANE: Mixed succession is not really a kind of succession, but merely a combination of different kinds of
succession. So there are really, only 3 kinds of succession
‣ Before the family code, there was a fourth kind of succession, "Contractual Succession" between spouses in the form of
a donation propter nuptias to take effect upon the death of either spouse.

DEFINITION OF HEIRS, DEVISEES AND LEGATEES


.

Article 782. An heir is a person called to the succession either by the provision of a will or by operation of law.
Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will.
(n)

DISTINCTION IN ART. 782 BETWEEN “HEIRS” AND “DEVISEES/LEGATEES”


‣ The coal definitions are neither clear nor very helpful. They are so open-ended that an heir can fall under the definition of
a legatee/devisee and vice-versa

‣ Castan’s explanations are authoritative:

1. Heir
‣ One who succeeds to the whole or an aliquot (fractional) part of the inheritance

‣ Successor by universal title or by universal succession

‣ Ex: X gives Y the whole of his estate, or 1/4 of his estate, in either case, Y is considered as an heir

2. Devisee/Legatee
‣ Those who succeed to definite, specific and individual properties

‣ Successor by specific title or by particular succession

‣ Ex: X gives Y his house, or painting, etc.

IMPORTANCE OF THE DISTINCTION IN ART. 782


‣ Distinction between heir and devisee/legatee was much more important in the old law. But still has its importance in the
Civil Code. On this distinction depends the correct application of Art. 854 on preterition.

‣ In cases of preterition, the institution of heir is annulled, while the institution of legatees and devisees is effective to the
extent that the legitimes are not impaired.

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CHAPTER 2: TESTAMENTARY SUCCESSION; SECTION 1: WILLS
SUBSECTION 1: WILLS IN GENERAL
CHAPTER 2: TESTAMENTARY SUCCESSION

SECTION 1: WILLS

SUBSECTION 1: WILLS IN GENERAL

DEFINITION OF A “WILL”

Article 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain
degree the disposition of his estate, to take effect after his death. (667a)

OPERATIVE WORDS IN THE DEFINITION


1. ACT
‣ The definition of a will as an act is to broad and should have been more clearly delimited with a more specified term
such as “instrument or document” in view of the provision of Art. 804 that every will must be in writing. Nuncupative,
or oral wills are not recognised in our Code

‣ This erroneously characterisation is sourced from the Spanish Civil Code because orals wills are recognized in that
jurisdiction

2. PERMITTED
‣ Will making is purely statutory, it is not guaranteed by the Constitution. A law may be passed to invalidate will-making.

3. FORMALITIES PRESCRIBED BY LAW


‣ The requirement of form prescribed respectively for attested and holographic wills

4. CONTROL TO A CERTAIN DEGREE


‣ The testator’s power of testamentary disposition is limited by the rules on legitimes

5. DISPOSITION OF HIS ESTATE


‣ SEANGIO VS REYES (2006):
‣ In this case, the document was a holographic one containing only a clause of disinheritance. The issue was
whether or not the decedent left a will which would determine whether testate or intestate proceedings will take
place. The Court held that the document, although it may initially come across as a mere disinheritance
instrument, conforms to the formalities of a holographic will because an intent to dispose mortis cause can
be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of
the testator’s property, the disinheritance is an act of disposition in itself. Thus, probate proceedings should
take place.

‣ BALANE: Note that the disposition of property is NOT an essential element of wills. A will is valid even though it does
not contain any testamentary disposition as long as it complies to the essential requirements of wills, although it is a
hollow will.
6. AFTER HIS DEATH
‣ Testamentary succession, like all other kinds of succession in our Code, is mortis causa
‣ VITUG VS CA (1990):
‣ A “survivorship agreement” executed by spouses (between themselves and the bank) pertaining to bank deposits,
which are conjugal during their lifetime but will be exclusive property of the surviving spouse upon the death of
either, is NOT a will. This is because a bequest or devise must be owned by the testator. In this case, it was
conjugal funds. Neither was it a donation since it was to take place upon the death.

‣ Court held that such an agreement is a kind of aleatory contract involving an obligation with a term, the term being
death.

‣ Alternative definition of a will in this case: "A personal, solemn, revocable, and free act by which a capacitated
person disposes of his property, rights and declares or complies with duties to take effect after his death."

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‣ This is a definition from the Americans which is authoritative as well.

CHARACTERISTICS OF WILLS
1. PURELY PERSONAL
‣ See Art. 784, 785, 787

2. FREE AND INTELLIGENT


‣ See Art. 839, the testator’s consent should not be vitiated by the causes mentioned in Art. 839, paragraphs 2-6
(insanity, violence, intimidation, fraud, mistake)

3. SOLEMN AND FORMAL


‣ Expressed in Art. 783

‣ See Art. 804-814, 820, 821

‣ The requirements as to form depend on whether the will is attested or holographic.

‣ Art. 805-808, 820, 821 govern attested wills.

‣ Art. 810-814 govern holographic wills.

‣ Art. 804 applies to both.

4. REVOCABLE OR AMBULATORY
‣ See Art. 828

‣ Ambulatory means it is not fixed, or changeable

‣ This is because the will only takes effect upon the testator’s death and no rights vest yet as long as the testator is
alive, even if the will has already been probated ante-mortem

5. MORTIS CAUSA
‣ Expressed in Art. 783

‣ This is also a necessary consequence of Art. 774 and 777

6. INDIVIDUAL
‣ See Art. 818, joint wills are prohibited in this jurisdiction.

7. EXECUTED WITH ANIMUS TESTANDI


‣ Implied in Art. 783
8. EXECUTED WITH TESTAMENTARY CAPACITY
‣ See Art. 796-803

9. UNILATERAL
‣ Implied in Art. 783

‣ this means acceptance is not needed in making a will. A person may be stipulated in a will without his knowledge.
Acceptance comes later, after the decedent's death.

10. DISPOSITIVE OF PROPERTY


‣ Expressed in Art. 783, the article seems to consider the disposition of the testator’s estate mortis causa as the
purpose of will-making

‣ Generally, it should dispose of a property, BUT this is NOT an essential requirement of a valid will.

‣ BALANE: If a will does not dispose of property (such as a document expressing the desire of the decedent to be
cremated) it is a hollow will, it is still a valid will but only as to its form, not substance.
11. STATUTORY
‣ Expressed in Art. 783, will-making is a purely statutory right.

PURELY PERSONAL CHARACTERISTIC OF “MAKING” A WILL

Article 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a third
person, or accomplished through the instrumentality of an agent or attorney. (670a)

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

Article 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may
leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to
which such property or sums are to be given or applied. (671a)

Article 787. The testator may not make a testamentary disposition in such manner that another person has to determine
whether or not it is to be operative. (n)

NON-DELEGABILITY OF “MAKING” A WILL (ART. 784, 785, 787); EXCEPTIONS (ART. 786)
‣ RULE: THE MAKING OF A WILL IS A STRICTLY PERSONAL ACT; IT CANNOT BE LEFT IN WHOLE OR IN PART TO THE DISCRETION
OF A THIRD PERSON, OR ACCOMPLISHED THROUGH THE INSTRUMENTALITY OF AN AGENT OR ATTORNEY.

‣ Art. 784 gives the will its purely personal character, as reinforced by Art. 785 and 787

‣ It is the exercise of the “disposing power” that cannot be delegated. Purely mechanical and clerical aspects, such as
typing, do not fall within the prohibition

‣ What the law prohibits is the essence of will-making.

‣ The following constitute the essence of will-making or the exercise of disposing power, and thus, are non-delegable:
1. The designation of heirs, devisees, or legatees

2. The duration or efficacy of such designation (including such things as conditions, terms, substitutions)

3. The determination of the portions they are to receive


4. The power to decide whether a disposition should take effect or not (Art. 787)

‣ The testator may not delegate to a third person the determination on whether or not disposition is operative. This is
because it violates the purely personal character of the will, in effect the third person will exercise the disposition
power.

‣ This should be interpreted rationally, it should not be interpreted as to make it clash with the principle (Art. 1041-1057)
that the heir is free to accept or reject the testamentary disposition

‣ EXCEPTION: THE TESTATOR MAY ENTRUST TO A THIRD PERSON THE FOLLOWING:


1. Manner of distribution of specific property or sums of money that he may leave in general to specified classes
or causes, and
2. The designation of the persons, institutions or establishments to which such property or sums are to be given
or applied.
‣ Note that the testator must determine the class or cause to be benefited AND the specific property or amount
of money to be given (these two things must be specified by the testator before the delegation to a third person is
allowed)

‣ It is only the manner of distribution or property and the designation of who are to receive it within the class or
cause which are delegable. Thus the third person can choose WHO to give (as long as it corresponds to the class
or cause) and HOW MUCH each of them should receive (as long this corresponds to how much the testator
chooses to give)

‣ BALANE: The exceptions here are part of the essence of the will-making power of the testator, they are allowed to
be delegated only because the law says so.
‣ What if the testator specified the recipients (by specific designation) but left the third person the determination of
the sharing (proportion of how much each receives), is this allowed?
‣ No, under Art. 786, the recipients must not be specifically designated by the testator. Art. 786 only applies where the
testator merely specifies the class or cause but not the specific recipients.

‣ This is the case even though this actually involves a lesser discretion for the third person than the instances
allowed by Art. 786. Since in Art. 786, the testator is allowed to delegate WHO to give and HOW MUCH each
person should receive. In the mentioned scenario, the testator chooses WHO to give but delegates merely HOW
MUCH each of them shall receive.

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‣ BALANE: This should be allowed since it involves a lesser discretion.
‣ What if the third person to whom the powers in Art. 786 is delegated to refuses to do his duty?
‣ Court will compel him to do so. If the third person dies, court should appoint a substitute in order to carry out the
wishes of the testator.

RULES OF CONSTRUCTION AND INTERPRETATION OF WILLS

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

Article 789. When there is an imperfect description, or when no person or property exactly answers the description,
mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence,
excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will,
as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking
into consideration the circumstances under which it was made, excluding such oral declarations. (n)

Article 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use
them in another sense can be gathered, and that other can be ascertained.
Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention,
or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such
technical sense. (675a)

Article 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather
than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be
preferred which will prevent intestacy. (n)

Article 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other
dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid
disposition had not been made. (n)

Article 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the
time of making the will, should it expressly appear by the will that such was his intention. (n)

Article 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property
disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n)

Article 929. If the testator, heir, or legatee owns only a part of, or an interest in the thing bequeathed, the legacy or devise
shall be understood limited to such part or interest, unless the testator expressly declares that he gives the thing in its
entirety. (864a)

Article 931. If the testator orders that a thing belonging to another be acquired in order that it be given to a legatee or
devisee, the heir upon whom the obligation is imposed or the estate must acquire it and give the same to the legatee or
devisee; but if the owner of the thing refuses to alienate the same, or demands an excessive price therefor, the heir or the
estate shall only be obliged to give the just value of the thing. (861a)

BALANE: The principles in construction and interpretation of wills are based on the principle that the intent of the testator is
supreme.

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RULES OF CONSTRUCTION AND INTERPRETATION OF WILLS
1. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the
disposition is to be operative shall be preferred (Art. 788)

‣ Underlying principle is that Testacy is preferred to Intestacy. This is because the former is the express will of the
decedent, whereas the latter is only his implied will.

‣ Also, the principle of “That the thing may rather be effective than be without effect.

‣ Similar rule in Contractual Interpretation, Article 1373: “If some stipulation of any contract should admit of several
meanings, it shall be understood as bearing that import which is most adequate to render it effectual”

‣ When there is doubt as to the interpretation of provisions of a will, then that interpretation which makes it valid should
be preferred, not the interpretation which will make it void.

‣ BALANE: Give effect, as much as possible, to the testator's intention, don't be too technical.
2. When there is an imperfect description, or when no person or property exactly answers the description, mistakes
and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence,
excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face
of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the
words of the will, taking into consideration the circumstances under which it was made, excluding such oral
declarations. (Art. 789)

‣ Two kinds of ambiguity:

a. Latent or Intrinsic Ambiguity (not obvious on the face of the will)

‣ When there is an imperfect description, or when no person or property exactly answers the description.

‣ The ambiguity is not apparent on the face of the will.

i. Latent as to person: “I institute to 1/4 of my estate my first cousin Jose” (but the testator has several first
cousns named Jose)

ii. Latent as to property: “I devise to my cousin Pacifico my fishpond in Roxas City” (but the testator has more
than one fishpond on Roxas City)
b. Patent or Extrinsic Ambiguity (obvious on the face of the will)

‣ The ambiguity is envident from a reading of the will

i. Patent as to person: “I institute to 1/4 of my estate some of my first cousins”

ii. Patent as to property: “I bequeath to my cousin Pacifico some of my cars”

‣ How to deal with such ambiguities


a. No distinction, really, whether the ambiguity is latent or patent

b. The ambiguity as far as possible, be cleared up and resolved, in order to give effect to the testamentary
disposition. Remember that the testator's intention is supreme in testamentary succession.

c. Resolve the ambiguity by any evidence admissible and relevant, EXCLUDING oral declarations of the
testator as to his intention (Dead man cannot refute a tale)

‣ Note that both extrinsic and intrinsic evidence may be presented, as well as written declarations of the
testator.
3. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them
in another sense can be gathered, and that other can be ascertained. Technical words in a will are to be taken in
their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears
that the will was drawn solely by the testator, and that he was unacquainted with such technical sense (Art. 790)

‣ Rule is similar to Rule 130, Sec. 10 and 14 of Rules of Court

‣ Sec. 10: “Interpretation of a writing according to its legal meaning.- The language of a writing is to be interpreted
according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise.”

‣ Sec. 14: “ Peculiar signification of terms.- The terms of a writing are presumed to have been used in their
primary and general application, but evidence is admissible to show that they have a local, technical, or
otherwise peculiar signification, and were so used and understood in the particular instance, in which case the
agreement must be construed accordingly.”

‣ Similar rule in Contractual Interpretation, Article 1370: “If the terms of a contract are clear and leave no doubt upon
the intention of the contracting parties, the literal meaning of its stipulations shall control.”

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4. The words of a will are to receive an interpretation which will give to every expression some effect, rather than
one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be
preferred which will prevent intestacy. (Art. 791)

‣ Rule is similar to Rule 130, Sec. 11 of Rules of Court

‣ Sec. 11: “Instrument construed so as to give effect to all provisions.- In the construction of an instrument where
there are several provisions or particulars, such as constructions is, if possible, to be adopted as will give effect
to all”

‣ Similar rule in Contractual Interpretation:

‣ Article 1373: “If some stipulation of any contract should admit of several meanings, it shall be understood as
bearing that import which is most adequate to render it effectual.”

‣ Article 1374: “The various stipulations of a contract shall be interpreted together, attributing to the doubtful ones
that sense which may result from all of them taken jointly.”

5. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other
dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first
invalid disposition had not been made. (Art. 792)

‣ This provision makes applicable to wills the sever ability or separability principle in statutory construction frequently
expressly provided in a separability clause

6. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time
of making the will, should it expressly appear by the will that such was his intention. (Art. 793)

‣ This provision creates problems which would not have existed had it not been so nonchalantly incorporated in the
Code

‣ The problems spring from the fact that this article makes the will speak as of the time it is made, rather than at the
time of the decedent’s death (which is more logical because that is when the will takes effect Art. 777)

‣ Example: X executes a will in 1980 with a provision “I leave to A 1/4 of my estate.” When he made the will, his estate
was worth P100,000. At the time of his death in 1990, X’s estate was worth P500,000. Per Art. 793, A is entitled only
to P25,000

‣ Art. 793 therefore departs from the codal philosophy of Art. 774 and 776 and constitutes an exception to the
concept of succession as linked to death and rendered legally effective by death.
‣ BALANE: This article should be reformed as to read “Property acquired after the making of a will passes thereby unless
the contrary clearly appears from the words or the context of the will” Testator is presumed to know that the will is to
operate only when he dies, therefore the provisions of a will is supposed to speak at the time of the death of the
testator. The reverse of Art. 793 should be true in that the will should pertain to the property as of the time of death.
‣ Some authorities say that this provision on after-acquired properties only applies to legatees and devisees and NOT to
heirs (as this makes more sense), but Prof. Balane didn’t say anything regarding that.
7. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property
disposed of, unless it clearly appears from the will that he intended to convey a less interest. (Art. 794)

‣ Read this together with Art. 929

‣ In a legacy or devise, the testator gives exactly the interest he has in the thing (Art. 794)
‣ EXCEPTION: He can give less interest (Art. 794) or a greater interest (Art. 929) than he has, if he indicates such
fact in the will

‣ How will he give more interest than he actually has under Art. 931? The estate will need to purchase the interest
the testator wishes to give but doesn't own yet when he dies. If the owners of such interest doesn't want to sell,
the heir gets the monetary equivalent instead.

‣ Ex: When testator owns a land in co-ownership with another.

‣ In the latter case, if the person owning the interest to be acquired does not wish to part with it, the solution in
Art. 931 can be applied, in that the legatee or devisee shall be entitled only to the just value of the interest
that should have been acquired.

GOVERNING LAW AS TO THE FORMAL VALIDITY OF A WILL

Article 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made. (n)


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‣ RULE: THE VALIDITY OF A WILL DEPENDS ON THE LAW IN FORCE AT THE TIME IT WAS EXECUTED, NOT THE TIME WHEN THE
TESTATOR DIES.

‣ EXCEPTION: When a subsequent law provides for retroactivity

‣ EXCEPTION TO EXCEPTION: When the testator dies before such subsequent law’s effectivity (Art. 777)

ASPECTS OF VALIDITY OF WILLS

EXTRINSIC OR FORMAL VALIDITY INTRINSIC OR SUBSTANTIVE VALIDITY

For Filipinos and Foreigners:


For Filipinos

‣ The law in force when the will was executed (Art. ‣ The law as of the time of death (Art. 777,
795)
2263)

Governing
Law as to the ‣ BALANE: You don’t want the testator to be a
Time prophet and predict laws

For Foreigners

‣ For foreigners, the assumption is that the will is


‣ Depends on their personal law (Art. 16, par.
being probated here
2, Art. 1039)

For Filipinos and Foreigners:


For Filipinos

‣ Five choices are available to the testator (Art. ‣ Philippine law (Art. 16, par. 2)

815-817)

Governing 1. Law of Citizenship

For Foreigners

Law as to the
2. Law of Domicile

Place ‣ Their national law (Art. 16, par. 2, Art. 1039)


3. Law of Residence

4. Law of Place of Execution

5. Philippine Law

SUBSECTION 2: TESTAMENTARY CAPACITY AND INTENT

RULES ON TESTAMENTARY CAPACITY

Article 796. All persons who are not expressly prohibited by law may make a will. (662)

Article 797. Persons of either sex under eighteen years of age cannot make a will. (n)

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

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

Article 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who
opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be
insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. (n)

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

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TESTAMENTARY CAPACITY
‣ This is the legal capacity to make a will

‣ All natural persons have testamentary capacity, unless disqualified by law

‣ Juridical persons, however, are not granted testamentary capacity

‣ Testamentary capacity is considered an extrinsic/formal requirement for the validity of a will (according to Art. 839)

PERSONS DISQUALIFIED BY LAW/ TESTAMENTARY INCAPACITY


1. PERSONS UNDER EIGHTEEN YEARS OF AGE
‣ A minor cannot make a will, thus, a will made by a minor is void. Such void will is NOT validated by his coming of age.
The minor, who has become an adult, must make a new will.

‣ Note that the provisions says “under eighteen years of age cannot make a will”, this doesn’t necessarily mean he is a
minor because prior to 1989 (where a special law was passed to lower age of majority), the age of majority was 21,
thus, before such date, some minors (aged 18-21) can execute a will
2. PERSONS WHO ARE NOT OF SOUND MIND OR WHO ARE MENTALLY INCAPACITATED, AT THE TIME OF THE EXECUTION OF THE
WILL
‣ Art. 799 defines what a sound mind is

‣ To be of sound mind, it is NOT required or necessary that the testator should have:
a. Full possession of all his reasoning faculties

b. A mind that is wholly unbroken, unimpaired, or unshattered by disease, injury or other cause

‣ This is because there's no such person who fits these descriptions. There is no such person who has full
possession of all his reasoning faculties nor a person who has a mind which is wholly unbroken,
unimpaired, or unshattered. Every person has gone through something.

‣ To be of sound mind, it is sufficient that the testator has the ability to know the:
a. NATURE OF THE ESTATE TO BE DISPOSED OF
‣ The testator should have a fairly accurate knowledge of what he owns, but what is accurate should depend
on the circumstances. if the person is rich, then the latitude of what is fairly accurate is broader than a
person who is poorer.

‣ The testator must only have a reasonably accurate knowledge of his estate, an estimation which is fairly
accurate. Nobody knows how much money he exactly has.

b. PROPER OBJECTS OF ONE’S BOUNTY


‣ The testator should know, under ordinary circumstances, his relatives in the most proximate degrees.

‣ This doesn't mean he should give the properties to his relatives, but he must know who his immediate
relatives are so that he can make an intelligent decision

c. CHARACTER OF THE TESTAMENTARY ACT


‣ The testator must know that the document he is executing is one that disposes of his property upon death

‣ He must know that he is disposing of his property gratuitously (and not for consideration) and it will take
effect upon his death

‣ Note: The standards of soundness of mind to execute a will is different in legal contemplation and medical
contemplation. What is important is that he meets the standards in Art. 799. He must be capable of
perceiving the three things in Art. 799 which renders him sufficient to meet the standard of a sound mind,
regardless of whether he is medically ill or not.

‣ Basically, the testator, in executing a will, should know and has an understanding of what he is about to do,
how he is disposing his property, and to whom he is disposing his property

‣ The definition of soundness of mind for purposes of testamentary succession is different from other purposes

‣ Time of determining mental capacity is at the time of execution of the will, no other temporal criterion is to
be applied
‣ Note that Art. 801 provides that supervening incapacity does not invalidate an effective will, nor is the will of an
incapable validated by the supervening of capacity. So no destructive or curative effect in the respective cases.

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PRESUMPTION OF SOUNDNESS OF MIND
‣ RULE: THE LAW PRESUMES THAT EVERY PERSON IS OF SOUND MIND, WHOEVER DISPUTES THIS FACT SHOULD REBUT IT WITH
SUFFICIENT EVIDENCE.

‣ EXCEPTION: In these cases, there is NO presumption of soundness of mind, but rather, a rebuttable presumption of
insanity:

1. When the testator, one month or less, before the execution of the will was publicly known to be insane (Article
800)

2. When the testator executed the will after being placed under guardianship or ordered committed, in either
case, for insanity (under Rules 93 and 101, respectively, of the Rules of Court), and before said order has been
lifted.

‣ Thus, in all cases, there is a presumption, either of soundness of mind, or insanity

IN CASE OF SUPERVENING INCAPACITY OR CAPACITY


‣ RULE: SUPERVENING INCAPACITY DOES NOT INVALIDATE AN EFFECTIVE WILL. SUPERVENING CAPACITY DOES NOT VALIDATE
AN INEFFECTIVE (VOID) WILL

‣ This supports the principle that the qualification of soundness of mind is to be determined at the time the will was
made and executed.

‣ If the person was on sound mind when he made the will, then the will is valid. Supervening incapacity does not render
it invalid. The reverse is also true, if the person was of unsound mind when he made the will, the will is invalid, this
invalidity is not cured upon the supervening capacity of the testator.

TESTAMENTARY CAPACITY OF WOMEN

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

Article 803. A married woman may dispose by will of all her separate property as well as her share of the conjugal
partnership or absolute community property. (n)

FAMILY CODE
Article 97. Either spouse may dispose by will of his or her interest in the community property

‣ BALANE: Sexist provisions which is explained by historical context. It contains an erroneous and unintended suggestion
that a married man does not have the same privilege
‣ Art. 803 has been superseded by Art. 97 of the Family Code. It provides that either spouse may dispose by will of his or
her interest in the community property.

‣ Note that during the subsistence of the marriage (of the absolute community or conjugal partnership) the community/
conjugal properties cannot be disposed of a single spouse without consent of the other, except token donations and
other exceptions, BUT, the spouses may dispose of their share by will since the absolute community property or conjugal
partnership is dissolved upon the death of either spouse (Art. 99 and 126 of Family Code)

SUBSECTION 3: FORMS OF WILLS

The next provisions which will be taken up will pertain to the formal requirements or extrinsic validity of wills. These
requirements are in Articles 804-808; 810-814; 818 and 819. To summarize:
‣ Formal requirements of Wills in General (Art. 804, 818-819):
1. Must be in writing

2. Must executed in a language or dialect known to the testator

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3. Must not be a joint will

‣ Formal requirements of Attested Wills (Art. 805-808)


1. Subscribed by the testator or his agent in his presence and by his express direction at the end thereof, in the
presence of the witnesses

2. Attested and subscribed by at least three credible witnesses in the presence of the testator and of one another

3. The testator, or his agent, must sign every page, except the last, on the left margin in the presence of the witnesses

4. The witnesses must sign every page, except the last, on the left margin in the presence of the testator and of one
another

5. All pages numbered correlatively in letters on the upper part of each page

6. Attestation clause, stating

a. The number of pages of the will

b. The fact that the testator or his agent under his express direction signed the will and every page thereof, in the
presence of the witnesses

c. The fact that the witnesses witnessed and signed the will and every page thereof in the presence of the testator
and one another,

7. Acknowledgment before a notary public

8. For testator who is a literate deaf-mute, he must read the will personally

9. For testator who is an illiterate deaf-mute, he must designate two persons to read the will and communicate to him,
in some practicable manner, its contents.

10. For blind testators, will must be read to him twice, once by one of the subscribing witnesses, and another by the
notary

‣ Formal requirements of Holographic Wills (Art. 805-808, 810-814)


1. Must be completely handwritten by the testator

2. Must be dated by the testator

3. Must be signed by the testator

4. Necessity of witnesses who knows the handwriting and signature of the testator or expert testimony

5. Additional dispositions must each be dated and signed

6. If each additional disposition is signed but undated, the last disposition must be signed and dated.

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

COMMON REQUIREMENT IN ALL WILLS

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

BALANE: Art. 804 lays down the common requirements that apply to both kinds of wills. These requirements are
MANDATORY, failure to comply with these two requirements renders the will VOID.

KINDS OF WILLS
1. Attested/Notarial Wills (Governed by special requirements in Art. 805-808)

2. Holographic Wills (Governed by special requirements in Art. 810-814)

COMMON REQUIREMENTS OF WILLS


1. IN WRITING
‣ Orals wills or nuncupative wills are NOT recognized in the Code, only in the Muslim Laws

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2. IN A LANGUAGE OR DIALECT KNOWN TO THE TESTATOR
‣ Neither the will nor the attestation clause need state compliance with this requirement. This can be proved by
extrinsic evidence (Lopez vs. Liboro, 81 Phil. 429 [1948]; Caponong-Noble vs. Abaja, 450 SCRA. 265 [2005])
‣ BALANE: How will you know whether the will is in a language known to the testator? Does the will need to state this
fact? NO, it is not required to be stated, extrinsic evidence may be presented.
‣ Presumption of compliance: It may sometimes be presumed that the testator knew the language in which the will
was written.

‣ BALANE: Generally there is no presumption, because it is dangerous, only in exceptional cases such as in
Abangan, which was not really a presumption but rather compliance was proved by the facts in that case
‣ SUROZA VS. HONRADO 110 SCRA 388 (1981)
‣ In this case, the trial court judge, on perusing the will and noting that it was written in English and was
thumbmarked by an obviously illiterate testatator, could have readily perceived that the will is void.

‣ 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 read to the testator and was translated
into Filipino language. That could only mean that the will was written in a language not known to the illiterate
testatator and, therefore, it is void because of the mandatory provision of Article 804 of the Civil Code that every
will must be executed in a language or dialect known to the testator. Thus, a will written in English, which was not
known to the testator, is void.

‣ ABANGAN VS. ABANGAN 40 PHIL. 476 (1919)


‣ In this case, the testator was born and resided in Cebu, and the will was executed in cebuano. Court said that
there is no need to prove that the testator knew and understood cebuano. Even if the records do not show that the
testator knew the dialect in which the will is written, but the circumstance appearing in the will itself show that
same was executed in Cebu and in the dialect of this locality where the testatator was from, is enough, in the
absence of any proof to the contrary, to presume that she knew this dialect in which this will is written
‣ Thus, there is a presumption that the testator knew the language or dialect in which the will is written, and
this need NOT be attested to in the will.
‣ On order for the presumptions to apply, the following must appear:
1. The will must be in a language or dialect generally spoken in the place of execution; and

2. The testator must be a native or resident of said locality.

‣ BALANE: Properly speaking, compliance with the language requirement is not then presumed but proved by these
attendant circumstances.

SPECIAL REQUIREMENTS FOR ATTESTED WILLS: IN GENERAL

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

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

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SPECIAL REQUIREMENTS FOR ATTESTED/NOTARIAL WILLS
1. Subscribed by the testator or his agent in his presence and by his express direction at the end thereof, in the presence
of the witnesses

2. Attested and subscribed by at least three credible witnesses in the presence of the testator and of one another

3. The testator, or his agent, must sign every page, except the last, on the left margin in the presence of the witnesses

4. The witnesses must sign every page, except the last, on the left margin in the presence of the testator and of one
another

5. All pages numbered correlatively in letters on the upper part of each page

6. Attestation clause, stating

a. The number of pages of the will

b. The fact that the testator or his agent under his express direction signed the will and every page thereof, in the
presence of the witnesses

c. The fact that the witnesses witnessed and signed the will and every page thereof in the presence of the testator and
one another,

7. Acknowledgment before a notary public.

DISCREPANCIES IN ART. 805


1. No statement that the testator must sign in the presence of the witnesses and no statement that the testator and
the witnesses must sign every page in one another’s presence.
‣ These two things, however, are required to be stated in the attestation clause. The only conclusion, therefore, is that
these are requirements that are to be complied with, since it cannot be presumed that the attestation clause was
meant to tell a lie

2. The attestation clause is not required to state that the agent signed in the testator’s presence
‣ This is a circumstance mandated by the first and second paragraphs of the article.

DATE REQUIREMENT
‣ There is NO requirement that an attested will should be dated, unlike a holographic will which must be.

‣ Consequently, a variance between the indicated dates of execution and acknowledgement does not in itself invalidate
the will

LANGUAGE REQUIREMENT
‣ Does the testator need to know the language of the attestation clause?

‣ No, because it is an affair of the witnesses.

‣ Do the witness need to know the language of the will?

‣ No, only the testator needs to know the language of the will for its validity. The only language requirement is in Art.
804 in that the will must be in a language known to the testator.

‣ How about the attestation clause, do the witnesses need to know its language?

‣ No, it can be interpreted to them under Art. 805, last paragraph.

SPECIAL REQUIREMENTS FOR ATTESTED/NOTARIAL WILLS (EXPOUNDED)


1. SUBSCRIBED BY TESTATOR OR HIS AGENT- SUBSCRIBED BY THE TESTATOR OR HIS AGENT IN HIS PRESENCE AND BY HIS
EXPRESS DIRECTION AT THE END THEREOF, IN THE PRESENCE OF THE WITNESSES

a. ACT OF SUBSCRIBING
i. By the Testator
‣ What does “subscribe” mean?
‣ The article uses two words to refer to this requirement which are used interchangeably, “subscribe” and
“sign”. By definition, they are not synonymous. To “sign” is a broader term as it simply means placing a
distinguishing mark; while to “subscribe” means “to write under”, this necessarily denotes writing.

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‣ “Subscribing” thus, should be taken to mean as “signing”, hence a distinguishing mark, such as a
thumbmark, is sufficient. However, the mark must be not easily faked, in that placing a “cross” is not
satisfactory

‣ Note that this only applies to the testator, not the witnesses. It is said that the witnesses are required to
sign by writing

‣ PAYAD VS. TOLENTINO 62 PHIL. 848 (1936)


‣ A statute requiring a will to be ‘signed’ is satisfied if the signature is made by the testator’s mark.
‣ MATIAS VS. SALUD L-10751 JUNE 23, 1958
‣ Court has repeatedly held that the legal requisite that the will should be signed by testator is satisfied by
a thumbprint or other mark affixed by him and that where such mark is affixed by the decedent, it is
unnecessary to state in the attestation clause that another person wrote the testator’s name at his
request

‣ BALANE: On the authority of these rulings, therefore, the testator’s thumbprint is always a valid and
sufficient signature for the purpose of complying with the requirement of the article. While in most of these
cases, the testator was suffering from some infirmity which made the writing of the testator’s name difficult
or impossible, there seems to be no basis for limiting the validity of thumbprints only to cases of illness or
infirmity.
‣ GARCIA VS. LACUESTA 90 PHIL. 489 (1951)
‣ It is not here pretended that the cross appearing on the will is the usual signature of the testator or even
one of the ways by which he signed his name. The Court is not prepared to liken the mere sign of a
cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the
trustworthiness of a thumb mark (because it is easy to fake).

‣ BALANE: A sign of the cross, therefore, placed by the testator does not comply with the statutory
requirement of signature, UNLESS it is the testator’s usual manner of signature or one of his usual styles
of signing
ii. By the Agent
‣ Requisites for signing by the agent:

1. He must sign in testator’s presence, and


‣ How does agent subscribe for the testator?
‣ By writing down the testator’s name (not his own name). The essential thing, for validity, is that the
agent write the testator’s name, nothing more. It would be a good thing, but not required, for the
agent to indicate the fact of agency or authority for reference.

‣ BARUT VS CABACUNGAN (1912):


‣ The testator may direct a third person to sign his name, and a declaration to this effect must be
provided in the attestation clause which is attested by the witness. What is required of the third
person (for purposes of the will’s validity) is to sign the testator's name, not his own; though it
may be wise as a practical matter that the one who signs the testator’s name signs also his own;
such act is not essential to the validity of the will. BUT, if the third person signed his own name,
rather than the testator’s, the will is void.
2. By the testator's express direction
‣ Can the witness be an agent (and vice-versa)?
‣ Some say no because Art. 805 implies that the agent and witness is distinct since the agent is required to
sign in the presence of at least three witness

‣ Some say yes, as to not be too strict, Tolentino supports this

b. SIGNING AT THE END OF THE WILL


‣ Where is the end?
‣ If the will contains only dispositive portions, there will be no ambiguity as to where the end of the will is. If,
however, the will contains non-dispositve paragraphs after the testamentary dispositions, one can refer to two
kinds of end, signing at either is permissible.

i. Physical end: Where the writing stops

ii. Logical end: Where the last testamentary disposition ends

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‣ Signing at the logical end is permissible also since the non-dispositive portions are not essential parts of
the will (Azuela vs CA, 487 SCRA 119 2006)

‣ What if the testator signs before the end?


‣ This invalidates not only the dispositions that come after, but the entire will, because then one of the statutory
requirements would not have been complied with

‣ Thus, the testator should sign at the physical end, or at least, the logical end, otherwise the will is VOID

c. SIGNING IN THE PRESENCE OF WITNESSES


‣ Actual seeing is not required, rather, the ability to see each other by merely casting their eyes in the proper
direction

‣ BALANE: Meaning of “in the presence”, as long as the witness has the ability to see each other (the testator
and the other witnesses) by merely casting his eyes, or pivoting his body in the proper direction, then the
requirement is fulfilled. It is sufficient that the witness was in a position to see, if he wanted to. There must be
no barrier to his line of sight
‣ NERA VS. RIMANDO 18 PHIL. 451 (1911)
‣ The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually
saw each other sign, but whether they might have seen each other sign, had they chosen to do so, considering
their mental and physical condition and position with relation to each other at the moment of inscription of
each signature

‣ But it is especially to be noted that the position of the parties with relation to each other at the moment of the
subscription of each signature, must be such that they may see each other sign if they choose to do so.
This, of course, does not mean that the testator and the subscribing witnesses may be held to have executed
the instrument in the presence of each other if it appears that they would not have been able to see each other
sign at that moment, without changing their relative positions or existing conditions.

2. ATTESTED AND SUBSCRIBED BY WITNESSES- ATTESTED AND SUBSCRIBED BY AT LEAST THREE CREDIBLE WITNESSES IN
THE PRESENCE OF THE TESTATOR AND OF ONE ANOTHER

a. ATTESTED AND SUBSCRIBED BY AT LEAST THREE CREDIBLE WITNESSES


‣ 2 distinct requirements (both must be down by the witnesses)

i. Attesting: The act of witnessing

ii. Subscribing: The act of signing their names in the proper places of the will

‣ Is “attesting” different from “subscribing”?


‣ Yes. “Attestation” is the act of the sense, while “subscription” is the act of the hand. The former is mental, the
latter mechanical, and to attest a will is to know that it was published as such, and to certify the facts required
to constitute an actual and legal publication; but to subscribe a paper published as a will is only to write on the
same paper the names of the witnesses, for the purpose of identification. (Caneda vs CA, 1993)
‣ “Attestation” consists in witnessing the testator’s execution of the will in order to see and take note mentally
that those things are done which the statute requires for the execution of the a will and that the signature of the
testator exists as a fact. On the other hand, “subscription” is the signing of the witnesses’ names upon the
same paper for the purpose of identification of such paper as the will which was executed by the testator. As it
involves a mental act, there would be no means therefore, of ascertaining by a physical examination of the will
whether the witnesses had indeed signed in the presence of the testator and of each other unless this is
substantially expressed in the attestation (Taboada vs Rosal, 1982)

‣ Is the witness required to sign at the end of the will?


‣ Ideally yes, but if he signs at the left-margin of the last page, it is substantial compliance

‣ TABOADA V. ROSAL (118 SCRA 195 [1982])


‣ In this case, the witnesses’ signatures were not found at the end but on the lefthand margin of that page.
Court ruled that the will fully satisfied the statutory requirement. It went on to state: “While perfection in the
drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored,
especially where the authenticity of the will is not assailed.”

‣ BALANE: The implication in Taboada is that, literally and ideally, the witnesses should sign at the end of the
will, though failure in this regard may be overlooked.
‣ May the witness, like the testator, affix his thumbmark, in lieu of writing his name?

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‣ Debatable, it is said that the witnesses are required to sign by writing because Art. 820 (pertaining to
qualifications of witnesses) requires that they should be able to read and write

‣ “Credible”?
‣ Qualification of the witnesses will be taken up later

b. SIGNING IN THE PRESENCE OF THE TESTATOR AND OF ONE ANOTHER


‣ Witnesses are also required to attest and sign in the presence of one another (of the testator and the other
witnesses)

‣ Nera ruling applies also in this case, in that, the ability to see is sufficient

3. SIGNATURE ON EVERY PAGE BY TESTATOR OR AGENT- THE TESTATOR, OR HIS AGENT, MUST SIGN EVERY PAGE,
EXCEPT THE LAST, ON THE LEFT MARGIN IN THE PRESENCE OF THE WITNESSES

a. SIGNATURE ON EVERY PAGE, EXCEPT THE LAST, ON THE LEFT MARGIN


‣ The last page need NOT be signed by the testator on the left margin, because, being the page where the end of
the will is, it already contains the testator’s signature (remember that the testator is required to sign at the end of
the will)

‣ The signing may be done by the testator himself, or by the agent (through writing his name under his express
direction)

‣ What if the signature was not placed on the left margin? Still valid for substantial compliance. This may be viewed
merely as a directory requirement

‣ If the entire document consists of only two sheets, the first containing the will and the second, the attestation
clause, there need not be any marginal signatures at all (Abangan v. Abangan 1919)

b. SIGNING IN THE PRESENCE OF THE WITNESSES


‣ This is a mandatory requirement, again the Nera ruling

4. SIGNATURE ON EVERY PAGE BY WITNESS- THE WITNESSES MUST SIGN EVERY PAGE, EXCEPT THE LAST, ON THE LEFT
MARGIN IN THE PRESENCE OF THE TESTATOR AND OF ONE ANOTHER

a. SIGNATURE ON EVERY PAGE, EXCEPT THE LAST, ON THE LEFT MARGIN


‣ Same requirement for witnesses as that of the testator or agent (discussed already). It is presumed that the
witnesses already signed at the end (as this is the act of subscribing).

‣ If they didn’t sign the end, at least they should sign at the left margin

‣ Order of signing of the witnesses

‣ The order of signing, insofar as all the signing requirements of this article are concerned, is immaterial,
provided everything is done in a single transaction. However, if the affixation of the signatures is done in
several transactions, then it is required for validity that the testator affix his signature ahead of the witnesses.

‣ ICASIANO VS. ICASIANO 11 SCRA 422 (1964)


‣ In this case, one of the witnesses, signed every page of the will appropriately, but, through oversight and
mistake, neglected to sign one page. Evidence was shown that the every page of the carbon copy of the will
was signed by him, to assure that there was no fraud. Court said that failure of one witness to affix his
signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is
not per se sufficient to justify denial of probate. The law should not be so strictly and literally interpreted as to
penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no
control, where the purpose of the law to guarantee the identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the full
observance of the statutory requisites; Otherwise, witnesses may sabotage the will by muddling or bungling it
or the attestation clause.

‣ BALANE: This ruling holding cannot, and should not, be taken as a departure from the rule that the will should
be signed by the witnesses on every page.
b. SIGNING IN THE PRESENCE OF THE TESTATOR AND OF ONE ANOTHER

5. NUMBERED PAGES- ALL PAGES NUMBERED CORRELATIVELY IN LETTERS ON THE UPPER PART OF EACH PAGE
a. ALL PAGES SHOULD BE NUMBERED

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‣ Mandatory requirement, there should be pagination by means of a conventional system. The purpose of this is to
prevent insertion or removal of pages

b. NUMBERED BY LETTER ON THE UPPER PART OF EACH PAGE


‣ Merely a directory requirement

‣ By “letters” means you need to spell out the numbers, this is more thorough, similar to a check

‣ Any conventional system of numbering will do

6. ATTESTATION CLAUSE
a. ATTESTATION CLAUSE SHOULD STATE:
i. The number of pages of the will,

ii. The fact that the testator or his agent under his express direction signed the will and every page thereof, in the
presence of the witnesses

iii. The fact that the witnesses witnessed and signed the will and every page thereof in the presence of the
testator and one another

b. IT SHOULD BE SIGNED BY THE WITNESSES, NOT THE TESTATOR, AT THE BOTTOM


‣ The attestation is the affair of the witness, therefore, it need not be signed by the testator

‣ Signature must be at the bottom of the attestation clause, it CANNOT be at the left margin of the page

‣ CAGRO VS. CAGRO 92 PHIL. 1032 (1953)


‣ In this case, the witnesses signed the page containing the attestation clause, but they signed at the left
margin, not at the bottom of the attestation.

‣ Court said that the attestation clause is “a memorandum of the facts attending the execution of the will”
required by law to be made by the attesting witnesses, and it must necessarily bear their signatures.

‣ An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission
of their signatures at the bottom thereof negatives their participation. If an attestation clause not
signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such
clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.

‣ Attestation is usually found at the bottom or after the end of the will

‣ What is the Attestation Clause?


‣ An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the
instrument has been executed before them and to the manner of execution of the same. It is a separate
memorandum or record o the acts surrounding the conduct of execution and once signed by the witnesses, it
gives affirmation to the fact that compliance with the essential formalities required by law has been observed. It is
made for the purpose of preserving in a permanent form a record of the fact that attended the execution of a
particular will, so that in case on failure of the memory of the attesting witnesses, or other casualty, such facts may
still be proved. (Caneda vs CA, 1993)

‣ What if the attestation is in a separate document?


‣ The fact that the attestation clause was written on a separate page has been held to be a matter of “minor
importance” and apparently will NOT affect the validity of the will (Villqflor v. Tobias 1927)
‣ Should the attestation be in a language or dialect known to the testator? How about the witnesses?
‣ In the case of ordinary or attested wills, the attestation clause need NOT be written in a language or dialect known
to the testator since it does not form part of the testamentary disposition. Furthermore, the language used in the
attestation clause likewise need NOT even be known to the attesting witnesses. The last paragraph of Art. 805
merely requires, in such a case, the attestation clause shall be interpreted to said witness. (Caneda vs CA, 1993)
‣ Why does the law require that the attestation clause state the number of pages on which the will is written?
‣ To safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or
decrease in the pages

7. ACKNOWLEDGEMENT- ACKNOWLEDGMENT BEFORE A NOTARY PUBLIC


‣ What does “acknowledgement” mean?

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‣ Means that that testator and his witnesses should avow to the notary the authenticity of their signatures and the
voluntariness of their actions in executing the testamentary disposition.

‣ To acknowledge before means “to avow, to own as genuine, to assent, to admit; and ‘before’ means in front or
preceding in space or ahead of.”
‣ Should the acknowledgment before a notary, take place, at the same time as the signing of the will by the
testator and his witnesses?
‣ No, Art. 805 does not require it, it can take place at another time

‣ JAVELLANA VS LEDESMA 97 PHIL. 258 (1955)


‣ Whether or not the notary signed the certification of acknowledgment in the presence of the testatrix and the
witnesses, does NOT affect the validity of the codicil. The new Civil Code does not require that the signing of
the testator, witnesses and notary should be accomplished in one single act. A comparison of Articles 805 and
806 of the new Civil Code reveals that while testator and witnesses must sign in the presence of each other, all
that is thereafter required is that “every will must be acknowledged before a notary public by the testator and
the witnesses”; this means that that the latter should avow to the certifying officer the authenticity of their
signatures and the voluntariness of their actions in executing the testamentary disposition.
‣ The separate execution out of the presence of the testatrix and her witnesses can not be said to violate the rule
that testaments should be completed without interruption. Art. 806 does not contain words requiring that the
testator and the witnesses should acknowledge the testament (before a notary) on the same day or occasion
that it was executed.

‣ Thus, the certification of acknowledgment need not be signed by the notary in the presence of the
testator and the witnesses. Also, Article 806 does not require that the testator and the witnesses
must acknowledge on the same day that it was executed.
‣ BALANE: Note that it is the “act” of acknowledgement which is required, not the signature of the notary. A
logical inference from this is also that the article does NOT require that the testator and the witnesses must
acknowledge in one another’s presence. But, if the acknowledgment is done by the testator and the witnesses
separately, all of them must retain their respective capacities until the last one has acknowledged. Note that the
notary public need NOT be present when the will is subscribed, signed, and attested to by the testator and his
witnesses.
‣ Should the notary be present when the will was executed?
‣ Can the notary be one of the attesting witnesses?
‣ No, he cannot avow, assent, or admit his having signed the will in front of himself.

‣ CRUZ VS. VILLASOR 54 SCRA 31 (1973)


‣ In this case, of the three instrumental witnesses, one of them, was also the same time, the notary public before
whom the will was acknowledged. The court said that the will was not executed in accordance with law. The
notary public before whom the will was acknowledged cannot be considered as the third instrumental witness
since he cannot acknowledge before himself his having signed the will

‣ Consequently, if the third witness were the notary public himself, he would have to avow, assent, or admit his
having signed the will in front of himself. This cannot be done because he cannot split his personality into two
so that one will appear before the other to acknowledge his participation in the making of the will. To permit
such a situation to obtain would be sanctioning a sheer absurdity.

‣ To allow the notary public to act as third witness, or one of the attesting and acknowledging witnesses,
would have the effect of having only two attesting witnesses to the will which would be in contravention to
the provisions of Article 805 requiring at least three credible witnesses to act as such and of Article 806 which
requires that the testator and the required number of witnesses must appear before the notary public to
acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the
notary public for that purpose. In the circumstances, the law would not be duly observed.

‣ Thus, if the notary is one of the witnesses also, he cannot be counted as one of the witnesses.
Person cannot be a notary and a witness at the same time, he cannot avow, assent, or admit his
having signed the will in front of himself.
‣ Also, note that the notary is an officer of the court, he should be an objective person. If you make him a
witness, he gains an interest in the validity of the will.
‣ Can a will be acknowledged before a notary in a place outside his jurisdiction?
‣ No, the notary must act within the jurisdiction of his notarial commission

‣ GUERRERO VS BIHIS 521 SCRA 394 (2007):

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‣ Issue was whether or not a will “acknowledged” by the testator and the instrumental witnesses before a notary
public acting outside the place of his commission satisfy the requirement under Article 806 of the Civil
Code?

‣ No. One of the formalities required by law in connection with the execution of a notarial will is that it must be
acknowledged before a notary public by the testator and the witnesses. This formal requirement is one of the
indispensable requisites for the validity of a will. In other words, a notarial will that is not acknowledged before
a notary public by the testator and the instrumental witnesses is void and cannot be accepted for probate.

‣ The Notarial law provides: SECTION 240.Territorial jurisdiction. — The jurisdiction of a notary public in a
province shall be co-extensive with the province. The jurisdiction of a notary public in the City of Manila shall
be co-extensive with said city. No notary shall possess authority to do any notarial act beyond the limits of
his jurisdiction.
‣ In this case, the compulsory language of Article 806 of the Civil Code was not complied with and the
interdiction of Article 240 of the Notarial Law was breached. Ineluctably, the acts of the testatator, her
witnesses and the notary were all completely void.

SPECIAL REQUIREMENTS FOR ATTESTED WILLS: FOR HANDICAPPED TESTATORS

Article 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall
designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (n)

Article 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and
again, by the notary public before whom the will is acknowledged. (n)

SPECIAL REQUIREMENTS FOR HANDICAPPED TESTATORS:


1. FOR DEAF/ DEAF-MUTE TESTATORS
a. If able to read (literate): He must read the will personally

b. If unable to read (illiterate): He must designate two persons to read the will and communicate to him, in some
practicable manner, its contents.
2. FOR BLIND TESTATORS
‣ Will will be read to him twice, once by one of the subscribing witnesses, and another by the notary
‣ Art. 808 does not only cover actually blind persons, but also the following (they are in contemplation of the law, blind):

a. Have very poor eyesight rendering them unable to read

b. Illiterate persons

‣ GARCIA VS. VASQUEZ 32 SCRA 489 (1970)


‣ Requirements of Art. 808 doesn’t only cover, strictly, “blind" persons, but also those who are unable to read it
by reason of very poor eyesight. In this case, testator had cataract and glaucoma, surgeries were performed on
her rendering her unable to read at short distances.

‣ It also covers those unable to read, or illiterate persons

‣ Balane: The suggestion is that an illiterate testator, because of his incapacity to read the will is like a blind
testator. Consequently, Article 808 should apply.
‣ The rationale behind Art. 808 (the requirement of reading the will to the testator if he is blind or incapable of
reading the will himself as when he is illiterate), is to make the provisions thereof known to him, so that he may
be able to object if they are not in accordance with his wishes. That the aim of the law is to insure that the
dispositions of the will are properly communicated to and understood by the handicapped testator, thus making
them truly reflective of his desire, is evidenced by the requirement that the will should be read to the latter, not only
once, but twice, by two different persons, and that the witnesses have to act within the range of his (the testator's)
other senses.

‣ Requirements of Art. 808 is mandatory, failure to prove that fulfilment of such, renders the will VOID.
‣ BALANE: It should be noted that both the sense of Article 808 and the implication in Garcia are that the burden of
proof is upon the proponent of the will that the special requirement of the article was complied with. At the same

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time, there is no requirement that compliance with the requirement be stated either in the will or the attestation
clause. Compliance must be proven by extrinsic evidence
‣ ALVARADO VS. GAVIOLA, JR. 226 SCRA 348 (1993)
‣ In this case, the testator was unable to read because he had very poor, blurred, and defective vision. The will was
read to him only by his lawyer; but not by the notary and one of the witnesses, they, however, followed with their
own copies and asked if he understood the will, and the testator answered in the affirmative.

‣ Court said that he is covered under Art. 808, since it does not only apply to completely blind persons, but also, to
those incapable of reading their wills.
‣ Also, requirements of Art. 808 were substantially complied with. It said that in a number of occasions, substantial
compliance is acceptable where the purpose of the law has been satisfied, the reason being that the solemnities
surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery but are
never intended to be so rigid and inflexible as to destroy the testamentary privilege.
‣ In this case, the spirit behind the law was served though the letter was not. Although there should be strict
compliance with the substantial requirements of the law in order to insure the authenticity of the will, the formal
imperfections should be brushed aside when they do not affect its purpose and which, when taken into
account, may only defeat the testator’s will. IAMKOBA

‣ Purpose of Art. 808 is to make known to the incapacitated testator the contents of the draft of his will, this had
been accomplished in this case; substantial compliance suffices where the purpose has been served.

‣ BALANE: Alvarado does NOT reverse or abandon the Garcia ruling, it liberalizes it. Garcia says that Art. 808 is
mandatory, Alvarado says that substantial compliance (if it attains the purpose of the law, which is the protect the
blind testator) is sufficient.

SUBSTANTIAL COMPLIANCE FOR ATTESTED WILLS

Article 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that
the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. (n)

BALANE: This is a liberalization rule, an attempt to liberalize Articles 804 to 808. Substantial compliance with Articles 805 and
806 will validate the will despite some defects in the attestation clause.

RULE IN ART. 809; SUBSTANTIAL COMPLIANCE OF ART. 805


‣ RULE: DEFECTS AND IMPERFECTIONS IN THE FORM OF ATTESTATION OR IN THE LANGUAGE USED IN THE WILL SHALL NOT
RENDER THE WILL VOID, IF IT IS PROVED THAT THE WILL WAS IN FACT EXECUTED AND ATTESTED IN SUBSTANTIAL COMPLIANCE
WITH ALL THE REQUIREMENTS OF ARTICLE 805

‣ EXCEPT: If there is bad faith, forgery, or fraud, or undue and improper pressure and influence

CRITICISM OF ART. 809


‣ BALANE: An attempt to temper the strictness of the formal requirements of attested wills, but the law may have thrown
away the baby with the bath-water.
‣ Justice J.B.L. Reyes has criticized this provision as “liberalization running riot.” Sufficient guidelines should have been
given to limit discretion.

PROPER UNDERSTANDING OF ART. 809; HOW TO DETERMINE SUBSTANTIAL COMPLIANCE


‣ RULE: IN ORDER FOR THE WILL TO BE VALID, SUCH DEFECTS AND IMPERFECTIONS (UNDER ART. 805 AND 806) MUST BE
REMEDIED OR SUPPLIED BY AN EXAMINATION OF THE WILL ITSELF, WITHOUT RESORTING TO EXTRINSIC EVIDENCE.

‣ BALANE: If the defect is something that can be remedied by the visual examination of the will itself, liberalize. If not,
then you have to be strict.
‣ Justice JBL Reyes suggests a possible re- wording:

‣ “In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall NOT render the will invalid if such

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defects and imperfections can be supplied by an examination of the will itself and it is proved that the will was in
fact executed and attested in substantial compliance with all the requirements of Article 805." (Lawyers Journal,
November 30, 1950, p. 566.)

‣ Examples:
1. A failure by the attestation clause to state that the testator signed every page can be liberally construed, since
that fact can be checked by a visual examination.
2. A failure by the attestation clause to state that the witnesses signed in one another’s presence should be
considered a more serious, indeed a fatal, flaw, since the attestation clause is the only textual guarantee of
compliance.
‣ CANEDA V. COURT OF APPEALS 222 SCRA 781 (1993):
‣ In this case, the opponents to the probate were claiming that the attestation clause was fatally defective in that while it
recites that the testator indeed signed the will and all its pages in the presence of the three attesting witnesses and
states as well the number of pages that were used, the same does NOT expressly state therein the circumstance that
said witnesses subscribed their respective signatures to the will in the presence of the testator and of each other. The
will, however, complied with the other requirements of Art. 805 and 806.

‣ Regarding the reasons of the law for requiring the formalities to be followed in the execution of wills, the Court quoted
the Code Commission in saying that “the underlying and fundamental objectives permeating the provisions on
the law on wills consists in the liberalisation of the manner of their execution with the end in view of giving the
testator more freedom in expressing his last wishes, but with sufficient safeguards and restrictions to prevent
the commission of fraud and the exercise of undue and improper pressure and influence upon the testator”

‣ Court said that in the absence of that statement required by law is a fatal defect or imperfection which must
necessarily result in the disallowance of the will. It cannot fall or be allowed under the substantial compliance rule
since it cannot be verified in the will itself if the will was really signed by the witnesses in the presence of the testator
and of each other. In this case, proof of the acts required to have been performed by the attesting witnesses can be
supplied only by extrinsic evidence thereof.

‣ JBL Reyes on Art. 809: The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in
each and every page; whether the subscribing witnesses are three or the will was notarised. All these facts that the
will itself can reveal, and the defects or even omissions concerning them in the attestation clause can be safely
disregarded. BUT, the total number of pages, and whether all persons required to sign did so in the presence
of each other must substantially appear in the attestation clause, being the only check against perjury in
the probate proceedings.
‣ Under Art. 809, the defects or imperfections would NOT render a will invalid should it be proved that the will as
really executed and attested in compliance with Art. 805. In this regard, however, the manner of proving the due
execution and attestation has been held to be limited to merely an examination of the will itself, without
resorting to evidence aliunde, whether oral or written.
‣ Art. 809 presupposes that the defects in the attestation clause can be cured or supplied y the text of the will or a
consideration of matters apparent therefrom which would provide the data not expressed in the attestation clause
or from which it may necessarily be gleaned or clearly inferred that the facts not sated in the omitted textual
requirements were actually complied with in the execution of the will. In other words, the defects must be
remedied by intrinsic evidence supplied by the will itself.
‣ Omission which can be supplied by an examination of the will itself, without need of resorting to extrinsic
evidence, will NOT be fatal and, thus, would not obstruct the allowance of the probate of such will.
However, those omissions which cannot be supplied except by evidence aliunde would result in the
invalidation of the attestation clause, and ultimately, of the will itself.
‣ Since the object of the solemnities surrounding the execution of the will is to close the door against bad faith
and fraud, to avoid substitution of the wills and testaments and to guarantee their truth and authenticity.
Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends.
Nonetheless, it was also emphasized that one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will, hence when an interpretation already given assures
such ends, any other interpretation whatsoever that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator’s last will, must be disregarded.
‣ AZUELA VS CA 487 SCRA 119 (2006)
‣ The will in this case contains a lot of defects (as enumerated below). Court explained why each and every defect is
fatal to the validity of the will.

1. THE THREE WITNESSES TO THE WILL AFFIXED THEIR SIGNATURES ON THE LEFT-HAND MARGIN OF BOTH PAGES OF THE
WILL, BUT NOT AT THE BOTTOM OF THE ATTESTATION CLAUSE.

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‣ Court held that: the attestation clause is "a memorandum of the facts attending the execution of the will"
required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their
signatures at the bottom thereof negatives their participation.
‣ If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it
would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and
any or all of the witnesses

‣ Article 805 particularly segregates the requirement that the instrumental witnesses sign each page of the will,
from the requisite that the will be "attested and subscribed by the instrumental witnesses. The respective
intents behind these two classes of signature are distinct from each other. The signatures on the left-hand
corner of every page signify, among others, that the witnesses are aware that the page they are signing forms
part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are
referring to the statements contained in the attestation clause itself. Indeed, the attestation clause is
separate and apart from the disposition of the will. An unsigned attestation clause results in an
unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the
unsigned attestation clause, such signatures cannot demonstrate these witnesses’ undertakings in the clause,
since the signatures that do appear on the page were directed towards a wholly different avowal.

‣ The Court may be more charitably disposed had the witnesses in this case signed the attestation clause
itself, but not the left-hand margin of the page containing such clause. Without diminishing the value of the
instrumental witnesses’ signatures on each and every page, the fact must be noted that it is the attestation
clause which contains the utterances reduced into writing of the testamentary witnesses themselves. It is the
witnesses, and not the testator, who are required under Article 805 to state the number of pages used upon
which the will is written; the fact that the testator had signed the will and every page thereof; and that they
witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. The
only proof in the will that the witnesses have stated these elemental facts would be their signatures on the
attestation clause.

‣ Thus, if the attestation was signed by the witnesses, but they didn’t sign the left margin of the page
containing the attestation, this may be allowed under the substantial compliance rule
2. WILL WAS NOT NUMBERED CORRELATIVELY IN LETTERS PLACED ON UPPER PART OF EACH PAGE
‣ There was an incomplete attempt to comply with this requisite, a space having been allotted for the insertion of
the number of pages in the attestation clause. Yet the blank was never filled in

3. THE ATTESTATION DID NOT STATE THE NUMBER OF PAGES ON WHICH THE WILL WAS WRITTEN
‣ Court held that: a will whose attestation clause does not contain the number of pages on which the will is
written is fatally defective. The failure of the attestation clause to state the number of pages on which the will
was written remains a fatal flaw, despite Article 809.

‣ The purpose of the law in requiring the clause to state the number of pages on which the will is written is to
safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or
decrease in the pages.

‣ The failure to state the number of pages equates with the absence of an averment on the part of the
instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly
just witnessed and subscribed to.

‣ Following Caneda, there is substantial compliance with this requirement if the will states elsewhere in it how
many pages it is comprised of. In this case, however, there could have been no substantial compliance with the
requirements under Article 805 since there is no statement in the attestation clause or anywhere in the will itself
as to the number of pages which comprise the will.

4. THE WILL WHICH DOES NOT CONTAIN AN ACKNOWLEDGMENT, BUT A MERE JURAT
‣ In lieu of an acknowledgment, the notary public, wrote "Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10
(sic), 1981 dito sa Lungsod ng Maynila."

‣ Court held that: a notarial will that is not acknowledged before a notary public by the testator and the
witnesses is fatally defective, even if it is subscribed and sworn to before a notary public.
‣ The importance of this requirement is highlighted by the fact that it had been segregated from the other
requirements under Article 805 and entrusted into a separate provision, Article 806. The non-observance of
Article 806 in this case is equally as critical as the other cited flaws in compliance with Article 805, and should
be treated as of equivalent import.

‣ On Art. 809 in relation to Art. 805, the court said that:

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‣ Article 809 should not deviate from the need to comply with the formal requirements as enumerated under
Article 805. Whatever the inclinations of the members of the Code Commission in incorporating Article 805, the
fact remains that they saw fit to prescribe substantially the same formal requisites as enumerated in Section
618 of the Code of Civil Procedure, convinced that these remained effective safeguards against the forgery
or intercalation of notarial wills.

‣ Compliance with these requirements, however picayune in impression, affords the public a high degree of
comfort that the testator himself or herself had decided to convey property post mortem in the manner
established in the will. The transcendent legislative intent, even as expressed in the cited comments of
the Code Commission, is for the fruition of the testator’s incontestable desires, and not for the indulgent
admission of wills to probate.

‣ Court also reiterated the comments of Justice JBL Reyes in the Caneda Ruling

‣ LOPEZ VS LOPEZ (2012)


‣ In this case, the the attestation clause failed to state the correct number of pages used upon which the will is written.
This was because, while the acknowledgment portion stated that the will consists of 7 pages, upon showing it was
found that it really had 8 pages including the acknowledgment portion.

‣ Court said that the law is clear that the attestation must state the number of pages used upon which the will is written.
The purpose of the law is to safeguard against possible interpolation or omission of one or some of its pages and
prevent any increase or decrease in the pages. The statement in the Acknowledgment portion of the subject last will
and testament that it "consists of 7 pages including the page on which the ratification and acknowledgment are
written” cannot be deemed substantial compliance. The will actually consists of 8 pages including its
acknowledgment which discrepancy cannot be explained by mere examination of the will itself but through the
presentation of evidence aliunde
‣ Court cited JBL Reyes: “The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear
in each and every page; whether the subscribing witnesses are three or the will was notarized. All these are facts
that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons required to sign did so in the presence
of each other must substantially appear in the attestation clause, being the only check against perjury in
the probate proceedings”
‣ BALANE: It is not correct to say that the defect in stating the number of pages in a will cannot be supplied by the will
itself. In fact, the will is paginated and one can simply look at the number of pages of a will. But note that Justice JBL
Reyes himself said that failure of the attestation to state the total number of pages upon which the will is written is a
fatal defect.

SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: IN GENERAL

Article 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.
(678, 688a)

BASIC REQUIREMENTS OF HOLOGRAPHIC WILLS


‣ In contrast to the requirements of an attested will, those of a holographic will are the soul of simplicity. These
requirements are three:

1. Completely handwritten by the testator


2. Dated by him; and
3. Signed by him
‣ BALANE: The simplicity of the holographic will is its obvious advantage—with it go other benefits: secrecy,
inexpensiveness, brevity. That very simplicity, however, is also its obvious disadvantage: the danger of forgery, the greater
difficulty of determining testamentary capacity, the increased risk of duress.
‣ JUSTICE JBL REYES: “Holographic wills are peculiarly dangerous In case of persons who have written very little. The
validity of these wills depends exclusively on the authenticity of the handwriting, and if writing standards are not
procurable, or not contemporaneous, the courts are left to the mercy of the mendacity of witnesses.” “It is questionable
whether the recreation of the holographic testament will prove wise. Its simplicity is an invitation to forgery, specially since
its text may be extremely short: ‘All to X’ or ‘the free part to X’, plus a date and signature. Such short documents can defy

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real experts in handwriting, specially in the absence of contemporaneous writing standards. If we want to permit the
testator to keep his wishes secret, in order to avoid importunity, it can be done on the basis of the closed will (testamento
cerrado) of Arts. 706 to 715 of the Code of 1889 (called “mystic wills” in Louisiana).”

BASIC REQUIREMENTS OF HOLOGRAPHIC WILLS (EXPOUNDED)


1. COMPLETELY HANDWRITTEN BY THE TESTATOR
‣ Entire will must be handwritten by the testator himself. If the testator executes only part of the will in his handwriting,
and other parts of the will are not so written, the entire will is VOID, because it violates Art. 810.

‣ May a blind person execute a holographic will? Yes, just because a person is blind doesn't mean he can’t write, note
also that some blind persons become blind only after birth, they already learned how to write.
2. DATED BY THE TESTATOR
‣ Date may be written by any of the conventional ways or by indicating a day of general knowledge (such as “christmas
day of 2015”, “date of the hiroshima bombing”)

‣ Date is very important, it goes into the testamentary capacity of the testator, from this you can already know his age
and it helps determine if he was mentally capacitated.

‣ ROXAS VS DE JESUS 134 SCRA 245 (1985):


‣ In this case the will was improperly dated as “Feb./61”, it contained no day

‣ Proponents of the probate were arguing that while the old civil code (Art. 688) required the testator to state in his
holographic will, the “year, month, and day of its execution”, the new civil code omitted the phrase. Thus, what is
simply required now that the holographic will should be dated (even if there was no day, such as in this case where
the will was dated “Feb./61”).

‣ Court said that the liberal trend of the civil code in the manner of execution of wills should not be overlooked, the
purpose of which, in case of doubt, is to prevent intestacy. Therefore, as a general rule, the “date” in a
holographic will should include the day, month, and year of its execution. However, when there is no
appearance of fraud, bad faith, undue influence, and pressure and the authenticity of the will is established
and the only issue is whether or not the date “Feb./61” appearing on the holographic will is a valid
compliance of Art. 810, probate of the holographic will should be allowed under the principle of substantial
compliance.
‣ LABRADOR VS CA 184 SCRA 170 (1990):
‣ In this case, the will was not expressly dated, but its contents (in one of the testamentary dispositions) impliedly
revealed the date on which it was written

‣ Court said that the law does NOT specify a particular location where the date should be placed in the will.
The only requirements are that the date be in the will itself and executed in the hand of the testator.

3. SIGNED BY THE TESTATOR


‣ Must the signature be at the will’s end (understanding by this at least the logical end)?

‣ BALANE: Yes, Article 812 seems to imply this.


‣ May the testator sign by means of a thumbprint?

‣ BALANE: No, the article does not seem to permit this: “entirely written, dated and signed by the hand of the
testator himself.”

SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: REQUIREMENT OF WITNESS/WITNESSES

Article 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting
and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the
will is contested, at least three of such witnesses shall be required.
In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary,
expert testimony may be resorted to. (619a)

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APPLICABILITY OF ART. 811
‣ This article applies only to post mortem probates; it does NOT apply to ante mortem probates since in such cases
the testator himself files the petition and, obviously, will identify the document himself
‣ This article only applies to holographic wills.

‣ Art. 811 is a rule of evidence

RULE IN ART. 811; TESTIMONIAL AND DOCUMENTARY REQUIREMENTS IN PROBATE OF HOLOGRAPHIC WILLS
1. TESTIMONIAL REQUIREMENT
‣ Under Art. 811, witnesses who KNOWS the handwriting and signature of the testator are required to explicitly
declare that the will and the signature are in the handwriting of the testator.

‣ How many witnesses are required?

a. Uncontested Will: only one witness

b. Contested Will: at least three witnesses

‣ What does “contested” for the purposes of this article mean?

‣ It is contested only if the opponents of the will allege that the will was not written or signed by the testator
himself (IMPORTANT!). Alleging fraud or vitiation of consent does not mean it is contested for the purposes of
Art. 811

‣ Under the Rules of Court (Rule 132, Sec. 22), the genuineness of a handwriting may be proved by any of the
following:

1. A witness who actually saw the person writing the instrument

2. A witness familiar with such handwriting and who can give his opinion thereon, such opinion being an exception
to the opinion rule

3. A comparison by the court of the questioned handwriting and admitted genuine specimen thereof; and

4. Expert evidence

‣ The three-witness rule, in case of contested wills, is MANDATORY


‣ It is mandatory according to the Codoy Case. But for BALANE, it is merely DIRECTORY.
‣ AZAOLA VS SINGSON 109 PHIL. 102 (1960):
‣ In this case, the probate of a holographic will was being opposed by several persons based on undue and
improper pressure and influence. Only one witness was presented by the proponent of the probate. Probate court
denied the probate on the ground that only one witness was presented, when Art. 811 requires at least three
witness in case the holographic will is contested.

‣ Court said that the authenticity of the will was NOT contested. It is contested when the authenticity of the will
is challenged. The opponents did not raise the issue of the will’s authenticity. Thus, it is not required that at least
three witnesses be presented.

‣ Court also said that, even assuming, that the will was contested (in that the will’s authenticity is challenged):

‣ Article 811 cannot be interpreted as to require the compulsory presentation of three witnesses to identify
the handwriting of the testator, under penalty of having the probate denied. Since no witness may have
been present at the execution of a holographic will, none being required by law, it becomes obvious that the
existence of witnesses possessing the requisite qualifications is a matter beyond the control of the
proponent.
‣ For it is not merely a question of finding and producing any three witnesses; they must be witnesses “who
know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law
does not so express) “that the will and the signature are in the handwriting of the testator.” There may be no
available witness acquainted with the testator’s hand; or even if so familiarized, the witnesses may be unwilling
to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an
impossibility. This is the reason why the second paragraph prescribes that, in the absence of witnesses and if
the court may deem so, expert testimony may be resorted to.

‣ Where the will is holographic, no witness need be present (Art. 810), and the rule requiring production of
three witnesses must be deemed merely permissive if absurd results are to be avoided.
‣ Again, under Article 811, the resort to expert evidence is conditioned by the words “if the Court deem it
necessary,” which reveal that what the law deems essential is that the Court should be convinced of the
will’s authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their

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testimony that the will is genuine, it may consider it unnecessary to call for expert evidence. On the other hand,
if no competent witness is available, or none of those produced is convincing, the Court may still, and in fact it
should, resort to handwriting experts. The duty of the court, in fine, is to exhaust all available lines of inquiry, for
the State is as much interested as the proponent that the true intention of the testator be carried into effect.
And because the law leaves it to the trial court to decide if experts are still needed, no unfavourable inference
can be drawn from a party’s failure to offer expert evidence, until and unless the court expresses dissatisfaction
with the testimony of the lay witnesses.

‣ Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely directory and
is not mandatory.
‣ BALANE: This is obiter since the will was ruled as uncontested, therefore the pronouncements of the court in
assuming that the will was contested is immaterial to the disposition of the case. But, nevertheless, the obiter is a
strong one. Proof is not a matter of quantity, not a matter of numbers. To hold that a probate of a will should require
three witnesses is to make it more serious than treason (which requires only two witnesses). Art. 811 is merely
directory, what is important is the discretion of the court, it depends on the judge.
‣ CODOY VS CALUGAY 312 SCRA 333 (1999):
‣ In this case, the opponents of the probate of a holographic will was arguing the such will was a forgery. They
challenged the authenticity of the will. The proponents presented six witnesses, but the probate court discarded
the testimony of the four since it was worthless.

‣ Court said that based on the language used, Article 811 of the Civil Code is mandatory. The word “shall” connotes
a mandatory order. We have ruled that “shall" in a statute commonly denotes an imperative obligation and is
inconsistent with the idea of discretion and that the presumption is that the word “shall,” when used in a statute is
mandatory.”

‣ We cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if
the holographic will is contested, that law requires three witnesses to declare that the will was in the handwriting of
the deceased.

‣ BALANE: Codoy does NOT reverse Azaola. The word “shall” does not always connote a mandatory intent. It should
be noted that the Codoy ruling was not based on there being less than three witnesses (there were in fact six).
Neither did the ruling state that since there were less than three witnesses (apparently only the testimonies of two
witnesses were considered at length), even if their testimony was convincing, the probate must be denied because
of the mandatory import of 811. (The testimony of these two witnesses was found to be indecisive).The ruling in
fact said that visual examination of the will reveals that the strokes are different compared with standard
documents. Therefore, the basis of the ruling was that evidence for authenticity was not adequate, not failure to
present three witnesses. Which, if analyzed closely is in accord with Azaola, which stated that the decisive factor is
not quantity, but quality. If one goes beneath the surface, Codoy, rather than reversing Azaola, may have affirmed it.
‣ BUT, for the purposes of the bar, Codoy REVERSES Azaola. Art. 811 requiring the production of three
witnesses in case the holographic will was contested is MANDATORY. For purposes of exams under
BALANE, it seems it is merely DIRECTORY.

2. DOCUMENTARY REQUIREMENT
‣ In the probate of a holographic will, must the document itself must be produced?
‣ Yes, a lost holographic will cannot be probated. UNLESS a copy is presented

‣ GAN VS YAP 104 PHIL. 509 (1958):


‣ In holographic wills, the document itself is the only material proof of authenticity, and as its own safeguard,
since it could at any time, be demonstrated to be—or not to be—in the hands of the testator himself. The
execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony
of witnesses who have seen and/or read such will.
‣ The witnesses required in Art. 811, do not need to have seen the execution of the holographic will. They may be
mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the testator’s hand.
However, the oppositor may present other witnesses who also know the testator’s handwriting, or some expert
witnesses, who after comparing the will with other writings or letters of the deceased, have come to the conclusion
that such will has not been written by the hand of the deceased. And the court, in view of such contradictory
testimony may use its own visual sense, and decide in the face of the document, whether the will submitted to it
has indeed been written by the testator. Obviously, when the will itself is not submitted, these means of
opposition and of assessing the evidence, are not available. And then, the only guaranty of authenticity —
the testator’s handwriting—has disappeared

‣ RODELAS VS ARANZA 119 SCRA 16 (1982):

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‣ If the holographic will has been lost or destroyed and no other copy is available, the will can not be probated
because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a
comparison between sample handwritten statements of the testator and the handwritten will. But a photostatic
copy or xerox copy of the holographic will may be allowed because comparison can be made with the
standard writings of the testator.
‣ BALANE: This exception is very dangerous. It misread the footnote in the Gan case (which said that a photostatic
copy might be considered), which is not even obiter. A photocopy is easily forged. Handwriting experts use the
science of “penlifting” which is very very hard to fake in determining the authenticity of a document. You can't
apply this science to a mere photocopy.

SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: IN CASE OF ADDITIONAL DISPOSITIONS

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

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

APPLICABILITY OF ART. 813


‣ This article contemplates a situation where the testator had already made a holographic will but later decides to make
additional dispositions.

‣ Additional dispositions are those dispositions of the testator written below his signature

‣ It only applies to holographic wills

RULE IN ART. 813; REQUIREMENTS FOR ADDITIONAL DISPOSITIONS IN HOLOGRAPHIC WILLS


‣ Requirements for additional dispositions in a will
‣ They must:
1. Each be dated and signed, or
2. Each additional disposition signed and undated, BUT the last disposition signed and dated.
‣ What if the additional dispositions are dated but not signed?

‣ They are invalid

‣ What if the additional dispositions are dated but not signed but the last additional disposition is dated and signed?

‣ Only the last additional disposition is valid

‣ What if the additional dispositions are neither dated nor signed, but the last additional disposition is dated and signed?

‣ BALANE: A distinction should be made whether the additional dispositions were made on one occasion or on different
occasions. If they were all made on one occasion, the last additional disposition validates all and thus, all additional
dispositions are valid, but if they were made on different occasions, only the last disposition is valid.
‣ This distinction, although theoretically valid, is in practice, almost worthless, because we are speaking here of
holographic wills and the circumstances of their execution are very often extremely difficult to prove.

SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: AUTHENTICATION IN CASE OF CHANGES

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

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APPLICABILITY OF ART. 814
‣ This article covers any of the following changes made in a holographic will:

1. Insertions

2. Cancellations

3. Erasures

4. Alterations

RULE IN ART. 814; HOW TO AUTHENTICATE CHANGES MADE IN HOLOGRAPHIC WILLS


‣ In order to make such acts valid, the testator must authenticate it by his full signature.
‣ Full signature does not necessarily mean the testator’s full name, but merely his usual and customary signature.

‣ But it cannot merely be his initials, as seen in the case of Kalaw (unless it’s his usual signature?)
‣ Effect of failure to authenticate: The change is simply considered NOT made

‣ Is the will invalidated as a whole?

‣ No, but at most only as to the particular words erased, corrected or inserted. Unless the portion involved is an
essential part of the will

‣ KALAW VS RELOVA 132 SCRA 237 (1984):


‣ In this case, the name of the sole heir (Rosa) of a holographic will was crossed out and the name of another
person (Gregorio) written above it. The testator did not properly authenticate the changes

‣ Court said that Court said that the will was in effect, void because it had no testamentary dispositions left. The
alteration invalidated the testamentary disposition as far as both persons are concerned (the original heir and
the heir who allegedly replaced such person)menggay

‣ Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic
Will have not been noted under his signature, the Will is NOT thereby invalidated as a whole, but at most
only as respects the particular words erased, corrected or interlined
‣ However, when as in this case, the holographic Will in dispute had only one substantial provision, which
was altered by substituting the original heir with another, but which alteration did not carry the requisite of full
authentication by the full signature of the testator, the effect must be that the entire Will is voided or
revoked for the simple reason that nothing remains in the Will after that which could remain valid.
‣ BALANE: The court, in this case, did not give effect to the insertion of Gregorio’s name; why, however, was the
cancellation of the original testamentary institution (the cancellation of rosa) given effect? That cancellation was
not done in the way mandated by the article, because it was not properly authenticated, yet the court gave it
effect by invalidating the disposition. The cancellation of Rosa should not have been given effect, thus, the
disposition should have been given effect, and Rosa as the universal heir. The court should have cited Art. 830
in giving effect to the cancellation of the original heir. Art. 830 pertaining to revocation by means of cancellation.
But even if we apply Art. 830, the cancellation will still be erroneous since Art. 814 is the specific provision, Art.
830 being only a general provision. This decision is really a defective one.
‣ What if there was an insertion by a third person, in the holographic will?
‣ If the insertion was authenticated by the testator, the will is VOID because it’s not completely in his handwriting

‣ If the insertion was NOT authenticated, the will is valid, because the insertion is not deemed made.

SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: PLACE OF EXECUTION IN RELATION TO


THE TESTATOR’S NATIONALITY

Article 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the
law of the country in which he may be. Such will may be probated in the Philippines. (n)

Article 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by
the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with
those which this Code prescribes. (n)

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Article 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with
the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own
country, shall have the same effect as if executed according to the laws of the Philippines. (n)

Article 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad. (9a)

Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of
the country in which they are executed.
When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a
foreign country, the solemnities established by Philippine laws shall be observed in their execution.

APPLICABILITY OF ART. 815, 816, AND 817


‣ These three articles cover the rules of formal validity in the following instances:

1. Filipino abroad (Art. 815)

2. Alien abroad (Art. 816)

3. Alien in the Philippines (Art. 817)

RULES IN ART. 815, 816, 817; AS TO WHAT LAW ON FORMAL VALIDITY SHALL APPLY
‣ By combining the three articles with Art. 15 and 17, there are identical rules for Filipinos and Aliens.

‣ Every testator, whether Filipino or Alien, wherever he may be, has five choices as to what law to follow for the
form of his will:
1. Law of his citizenship
‣ Art. 816 and 817 for aliens; applying to Filipinos by analogy, Art. 15

2. Law of the place of execution


‣ Art. 17

3. Law of his domicile


‣ Art. 816 for aliens abroad; applying to aliens in the Philippines and to Filipinos by analogy

4. Law of his residence


‣ Art. 816 for aliens abroad; applying to aliens in the Philippines and to Filipinos by analogy

5. Philippine law
‣ Art. 816 and 817 for aliens; Art. 15, applying to Filipinos by analogy

‣ Example: A french person who owns several properties in the Philippines is domiciled in Germany, resides in Brazil
because he works there, but is in vacation in Japan

‣ He can either follow Philippine law, German law (place of domicile), Brazilian law (place of residence), Japanese law
(place of execution), or French law (place of citizenship).

SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: PROHIBITION ON JOINT WILLS

Article 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or
for the benefit of a third person. (669)

Article 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the
Philippines, even though authorized by the laws of the country where they may have been executed. (733a)

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Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of
the country in which they are executed.
When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a
foreign country, the solemnities established by Philippine laws shall be observed in their execution.

APPLICABILITY OF ART. 818; DEFINITION OF JOINT WILLS


‣ A JOINT WILL IS ONE DOCUMENT WHICH SERVES AS THE WILL OF TWO OR MORE PERSONS
‣ If there are separate documents, each serving as one independent will (even if they are written on the same sheet),
they are NOT “joint wills” prohibited by this article.

‣ What a single paper contains the two wills of two persons, one will executed in the front page, the other in the
back page?
‣ BALANE: It is NOT a joint will, since there are two separate documents. The fault is in the wording of the law in
saying “one instrument”. What the law prohibits is not two wills on the same sheet of paper but two wills in one
document.
‣ Are reciprocal wills, joint wills?
‣ Not necessarily, reciprocal wills are sometimes used by married couples or life partners as a simple means of
securing the transfer of property to the other spouse upon death. Reciprocal wills between spouses are where
basically mirror images of one another

RULES IN ART. 818; PROHIBITION ON JOINT WILLS


1. UNDER ART. 818, JOINT WILLS EXECUTED BY FILIPINOS ARE VOID, REGARDLESS OF THE PLACE OF EXECUTION.
‣ A joint will is VOID, even when executed by Filipinos in a foreign country, and such joint wills are authorized by the
laws of such country.

‣ This is an exception tot he rule on lex loci celebracionis (in Art. 17)

‣ Several reasons why they are prohibited:

1. The limitation on the modes of revocation (such as one of the testators would not be able to destroy the
document without also revoking it as the will of the other testator, or in any event, as to the latter, the problem of
unauthorized destruction would come in)

2. The diminution of testamentary secrecy

3. The danger of undue influence

4. The danger of one testator killing the other (such that if they executed the joint will for their reciprocal benefit, as
in the case when they are the heirs of each other, especially if husband and wife.)

‣ Reciprocal wills are NOT prohibited as long as they are executed in separate documents (though it encourages
murder)

2. JOINT WILLS EXECUTED BY FILIPINOS IN A FOREIGN COUNTRY ARE VOID IN THE PHILIPPINES, EVEN THOUGH AUTHORIZED BY
THE LAWS OF THE COUNTRY WHERE THEY MAY HAVE BEEN EXECUTED

‣ In other countries, joint wills may be allowed

‣ In Germany, joint wills are allowed if executed by spouses. But even if Filipino spouses, who are in Germany, executed
a joint will, it is void under Art. 819.

‣ Note that under Art. 17, the forms and solemnities of wills is governed by the laws of the country in which they are
executed. So, the general rule that the law of the place of the execution of the will applies, if this is the choice of the
testator. The prohibition on joint wills is an exception to this rule.

‣ What if executed by a foreigner? Is the joint will valid?

‣ Two views. One view says that the will is valid, under Art. 17, 816 and 817 in relation to the principles of
international law (following law of citizenship, residence, place of execution, or domicile, given that such is a
foreign country). On the other hand, the other view says it is void, under the expressed public policy against joint
wills

‣ First view is better, I think, because of Art. 17. This was asked in the recent 2015 bar exams!

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SUBSECTION 4: WITNESSES TO WILLS
OUTLINE ON VALIDITY OF JOINT WILLS

PLACE OF EXECUTION FILIPINO ALIEN

Philippines Void Two views


1. Valid if valid in their laws (Art. 816)
2. Void because against public policy

Abroad Void Valid if valid in their laws (Art. 17)


(Art. 819, even if authorized by the law of the
place of execution. This is an exception to the
permissive provisions of Art. 17 and 815)

Note: When executed by a Filipino and Alien, the joint will is always VOID as to the Filipino; but as to the alien, Art. 816 or 17
applies depending on the place of execution

SUBSECTION 4: WITNESSES TO WILLS

COMPETENCY OF WITNESSES IN ATTESTED WILLS

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

Article 821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a document, perjury or false testimony. (n)

APPLICABILITY OF ART. 805


‣ It applies only in attested wills.

‣ It covers witnesses to the execution of a will mentioned in Article 805

SIX QUALIFICATIONS OF WITNESSES OF ATTESTED WILLS


1. MENTAL CAPACITY- Of sound mind

2. AGE- At least 18 years of age

3. PHYSICAL CAPACITY- Not blind, deaf, or dumb

4. LITERATE- Able to read and write

5. DOMICILE- Domiciled in the Philippines

6. MORAL FITNESS- Must not have been convicted of falsification of a document, perjury, or false testimony

‣ BALANE: There is some controversy whether that requirement is applicable in cases of wills executed abroad. The
controversy is too sterile and picayune to merit discussion: the Gordian knot is simply cut by the testator resorting to
one of two very easy solutions in case there is no such witness readily available—either execute a holographic will or
elect to follow the law of the place of execution (Articles 17 and 815).

‣ Art. 820 and 821 pertains to the “competency” of a witness to be such. But remember Art. 805 uses the word
“credible” pertaining to the witnesses. What are the distinctions?
‣ GONZALES VS CA (1979):
‣ The “competency” of a person to be an instrumental witness to a will is determined by the statute, that is the
qualifications under Art. 820 and 821. His “credibility” depends on the appreciation of his testimony and arises
from the belief and conclusion of the Court that said witness is telling the truth. Competency as a witness is one

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thing, and it is another to be a credible witness, so credible that the Court must accept what he says. Trial courts
may allow a person to testify as a witness upon a given matter because he is competent, but may thereafter
decide whether to believe or not to believe his testimony.
‣ Must the competence and credibility of a witness first be proved or be established before a probate of a will may
be allowed?
‣ There is NO requirement that it must first be established in the record the good standing of the witness in the
community, his reputation for trustworthiness and reliableness, his honesty and uprightness, because such attributes
are presumed of the witness unless the contrary is proved otherwise by the opposing party.

‣ In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the
execution of a will or testament and affirm the formalities attendant to said execution.

‣ The rule is that the instrumental witnesses in order to be competent must be shown to have the qualifications
under Article 820 of the Civil Code and none of the disqualifications under Article 821 and for their testimony
to be credible, that is worthy of belief and entitled to credence, it is not mandatory that evidence be first
established on record that the witnesses have a good standing in the community or that they are honest and
upright or reputed to be trustworthy and reliable, for a person is presumed to be such unless the contrary is
established otherwise. In other words, the instrumental witnesses must be competent and their testimonies
must be credible be- fore the court allows the probate of the will they have attested (Gonzales vs CA 1979)

SUPERVENING INCOMPETENCE OF A WITNESS

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

‣ As in the case of testamentary capacity (Art. 801), the time of the execution of the will is the only relevant temporal
criterion in the determination of the competence of the witnesses

INCAPACITY OF THE WITNESSES TO SUCCEED

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

Article 1027. The following are incapable of succeeding: XXXX


(4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such
witness, spouse, parents, or children

APPLICABILITY OF ART. 823


‣ Art. 823 talks about the capacity of a witness to succeed as an heir, devisee, or legatee, NOT his capacity to be a witness

‣ BALANE: This article is misplaced here, since this is not concerned with capacity to be a witness, but with capacity to
succeed. Note that the person becomes incapacitated as an heir/devisee/legatee but not as a witness
‣ The application of this article is NOT limited to devisees and legatees. Although the provisions of the article seem to
limit its application to devisees and legatees, the disqualification will extend as well to heirs. The intent of the law is to
cover all testamentary institutions
‣ The reason for the infelicitous wording of the article as pointed out by Tolentino, is the injudicious borrowing from
foreign law (American Law in this case)

‣ Note that this disqualification is reiterated in Art. 1027 (4) and there it is not limited to devises and legacies.

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SUBSECTION 5: CODICILS AND INCORPORATION BY REFERENCE
RULE IN ART. 823; INCAPACITY OF WITNESSES TO SUCCEED
‣ RULE: A TESTAMENTARY DISPOSITION IN FAVOUR OF A WITNESS IS VOID
‣ EXCEPTION: IF THERE ARE THREE OTHER WITNESSES, THE DISPOSITION IS VALID
‣ This article lays down a disqualification of a witness to succeed to a legacy or devise when there are only three witnesses.

‣ The competence or qualification of the person as a witness is NOT affected.

‣ Assuming all other requisites for formal validity being present, the will is perfectly valid but the witness (or the relatives
specified in this article) cannot inherit

‣ The disqualification applies only to the testamentary disposition made in favor of the witness or the specified relatives
(spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child).

‣ If the party is also entitled to a legitime or an intestate share, that portion is NOT affected by the parties’ witnessing
the will

‣ Why are the witnesses prohibited or incapable from succeeding?

‣ BALANE: The witnesses must be objective to the validity of the will. They must not have any interest in the will. if they
have an interest such as a devise or legacy, then obviously they will be a proponent to the will's validity to protect their
interest. They might perjure themselves in the probate to protect their interest. (recit ko ito hehe :D)

CREDITORS AS COMPETENT WITNESSES

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

‣ BALANE: Obviously, because this is not a testamentary disposition

SUBSECTION 5: CODICILS AND INCORPORATION BY REFERENCE

DEFINITION OF A CODICIL

Article 825. A codicil is supplement or addition to a will, made after the execution of a will and annexed to be taken as a
part thereof, by which disposition made in the original will is explained, added to, or altered. (n)

CODICIL VS SUBSEQUENT WILL


‣ The distinction between a codicil and a subsequent will is that the former, by definition, explains, adds, or alters a
disposition in a prior will

‣ A subsequent will makes independent and distinct dispositions

‣ The distinction is purely academic because Art. 826 requires the codicil to be in the form of a will anyway

VALIDITY OF CODICILS

Article 826. In order that a codicil may be effective, it shall be executed as in the case of a will. (n)

RULE IN ART. 826; VALIDITY OF CODICILS


‣ RULE: CODICILS MUST COMPLY WITH THE FORMAL REQUIREMENTS OF A WILL (ATTESTED OR HOLOGRAPHIC), OBSERVING THE
RESPECTIVE RULES, IN ORDER TO BE EFFECTIVE.

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‣ Must the codicil conform to the form of the will to which it refers?

‣ No, the law does not require this. Thus, an attested will may have a holographic codicil; a holographic will may have
an attested codicil

VALIDITY OF INCORPORATED DOCUMENTS OR PAPERS TO AN ATTESTED WILL

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

APPLICABILITY OF ART. 827; INCORPORATION BY REFERENCE


‣ This article can refer only to such documents as inventories, books of accounts, documents of title, and papers of similar
nature

‣ The document should NOT make testamentary dispositions, for then the formal requirement for wills would be
circumvented.

‣ This article covers only attested wills. The wording of the article suggests that holographic wills cannot incorporate
documents by reference.

‣ Paragraph 4 of the article requires the signatures of the testator and the witnesses on every page of the incorporated
document (EXCEPT voluminous annexes).

‣ BALANE: It seems, therefore, that only attested wills can incorporate documents by reference, since only attested wills
are witnessed. Unless, of course, the testator executes a holographic will, and superfluously, has it witnessed. But the
liberal view says that this article also applies to holographic wills, meaning holographic wills can also incorporate
documents and papers by reference.

RULE IN ART. 827; REQUIREMENTS FOR INCORPORATION BY REFERENCE


1. The document or paper referred to in the will must be in existence at the time of the execution of the will
2. The will must clearly describe and identify the same, stating among other things the number of pages thereof
3. It must be identified by clear and satisfactory proof as the document or paper referred to therein; and
4. It must be signed by the testator and the witnesses on each and every page, EXCEPT in case of voluminous
books of account or inventories.
‣ The requirements may be established by extrinsic evidence (outside of the will) in the case of the first, third and fourth.
The second requisite is established by the will itself.

‣ The purpose of this rule is for authentication, to prevent substitution of the incorporated documents.

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SUBSECTION 6: REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS

PROHIBITION ON WAIVER OR RESTRICTION ON THE RIGHT TO REVOKE A WILL

Article 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is
void. (737a)

ABSOLUTE REVOCABILITY OF WILLS


‣ A will is essentially revocable or ambulatory. This characteristic cannot be waived even by the testator. A will is revocable
at the testator’s pleasure during his lifetime. There is no such thing as an irrevocable will.

‣ This characteristic of a will is considered with the principle, enunciated in Art. 777, that successional rights vest only upon
death.

‣ A will is effective only upon the testator’s death, and he dies, the will is revocable.

‣ It is revocable even if the testator expresses in his will that it is irrevocable.

RULES AS TO THE PLACE OF REVOCATION

Article 829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid
when it is done according to the law of the place where the will was made, or according to the law of the place in which
the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with
the provisions of this Code. (n)

APPLICABILITY OF ART. 829


‣ Art. 829 covers revocations made outside the Philippines and made by a person who is NOT domiciled in the Philippines.

‣ It covers revocation made in the Philippines

RULES IN ART. 829; RULES AS TO THE PLACE OF REVOCATION


1. If revocation is made in the Philippines: Follow Philippine law
2. If revocation is made outside the Philippines
a. If testator is NOT domiciled in the Philippines:
‣ Either:

i. Follow the law of the place where the will was made, or

ii. Follow the law of the place where the testator was domiciled at the time of the revocation

b. If testator is domiciled in the Philippines (This situation is not governed by Art. 829)
‣ Either:

i. Follow Philippine law (consistently with the domiciliary principle followed by this article

ii. Follow the law of the place of revocation (consistently with the principle of lex loci celebracionis in Art. 17)
iii. Follow the law of place where the will was made (by analogy with the rules on revocation where the testator is
a non-philippine domiciliary)

‣ BALANE: Note that the law follows the domiciliary theory. It is curious that it departs from the nationality theory.

MODES OF REVOCATION

Article 830. No will shall be revoked except in the following cases:


(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills; or

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(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by
some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some
other person, without the express direction of the testator, the will may still be established, and the estate distributed
in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation,
or obliteration are established according to the Rules of Court. (n)

Article 831. Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions
in the prior wills as are inconsistent with or contrary to those contained in the later wills. (n)

APPLICABILITY OF ART. 830


‣ This article enumerates the modes of revoking a will under Philippine law

MODES OF REVOKING WILLS


1. OPERATION OF LAW: BY IMPLICATION OF LAW
‣ The revocation may be total or partial

‣ Examples:
a. Preterition (Art. 854)

b. Legal Separation (Art. 63, par. 4 of the Family Code)

c. Unworthiness to Succeed (Art. 1032)

d. Transformation, alienation, or loss of the object devised or bequeathed (Art. 957)

e. Judicial demand of a credit given as a legacy (Art. 936)

2. SUBSEQUENT WILL OR CODICIL: BY SOME WILL, CODICIL, OR OTHER WRITING EXECUTED AS PROVIDED IN CASE OF
WILLS
‣ The revocation may also be total or partial

‣ Requisites for a valid revocation by a subsequent instrument:


a. The subsequent instrument must comply with the formal requirements of a will (It must be valid and
probated)
‣ Thus, an insane person cannot revoke his will which as executed when he was sane.

‣ The will must be admitted into probate (Molo vs Molo)


b. The testator must possess testamentary capacity (Capacity to revoke)
c. The subsequent instrument must either contain an express revocatory clause or be incompatible with the
prior will (Art. 831)

‣ Revocation by a subsequent instrument may be express or implied.

i. Express Revocation: if the subsequent instrument expressly provides such revocation

‣ Revocatory effect: Normally, the prior will is totally revoked, but really it depends on the revocatory
clause

ii. Implied Revocation: if the subsequent instrument is inconsistent and contrary to such prior will

‣ Revocatory effect: Annul only such dispositions in the prior wills as are inconsistent with or contrary to
those contained in the later wills (Art. 831)
‣ Mere subsequent wills do not ipso facto revoke prior wills. A person may die with two wills, this is not
prohibited. There must be an express revocation (through a revocation clause) or a implied revocation (through
incompatibility

3. BY PHYSICAL DESTRUCTION: BY BURNING, TEARING, CANCELLING, OR OBLITERATING THE WILL WITH THE INTENTION OF
REVOKING IT

‣ The law gives four ways of destroying:

a. Burning

b. Tearing

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c. Cancelling

d. Obliterating

‣ These should cover the scope of destruction

‣ The physical destruction may be done by either:


a. Testator personally

b. Testator’s agent, provided it is done:

i. In the presence of such testator and

ii. By his express direction

‣ Note that both requisites must concur if the destruction is done by the testator’s agent (Molo vs Molo).

‣ Effect of Unauthorised Destruction


‣ It depends if the will is attested or holographic.

a. Attested Will: The will may still be proved as lost or destroyed (Art. 830 par. 3 and Rule 76, Sec. 6 of the
Rules of Court).

‣ To give effect to an attested will which was destroyed without authority, the following must be proved and
established under the Rules of Court (Art. 831, par. 3):

i. The will’s contents

ii. Due execution, and

iii. The fact of its unauthorized destruction

‣ No will shall be proved as a lost or destroyed will unless the following are established (Rule 76, Sec. 6 of the
Rules of Court):

i. The will’s execution and validity of the same be established

ii. The will has been in existence at the time of the death of the testator, OR is shown to have been
fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge

iii. The will’s provisions are clearly and distinctly proved by at least two (2) credible witnesses.

‣ When a lost or destroyed will is proved, the provisions thereof must be distinctly stated and certified by the
judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and
recorded.(Rule 76, Sec. 6 of the Rules of Court)

‣ How do you prove the things enumerated?

‣ Present the instrumental witnesses to the will and the notary before whom it was acknowledged.

d. Holographic Will: The will CANNOT anymore be probated if it is lost or destroyed, even if such was
unauthorized.
‣ This is because in holographic wills, the will itself must be presented in probate. As the document itself is
the only material proof of authenticity (Gan vs Yap)
‣ EXCEPTION: A copy of the holographic will may be admitted into probate (Rodelas vs Aranza)
‣ Elements of Valid Revocation by Physical Destruction
a. CORPUS (Body): Physical act of destruction
‣ The physical destruction itself, there must be evidence of physical destruction.

‣ Total destruction is not required, as long as evidence on the face of the will shows act to revoke.

‣ BALANE: There must be some sort of destruction, no matter how small


b. ANIMUS (Spirit): Intention to Revoke
‣ Consists of:

i. Capacity and intent to revoke

ii. The testator must have completed everything he intended to do

‣ The corpus and animus must concur. One without the other will NOT produce revocation.

‣ Example of absence of corpus: If the testator categorically says he will “revoke the will and the will is
considered revoked”, but doesn’t not actually revoke it, there was no revocation, as there was no physical act
of destruction

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‣ Example of absence of animus: If the testator tears the will into 2 pieces but tapes it up later, there is no
revocation, as the testator had not completed everything he had intended to do.

‣ TESTATE ESTATE OF ADRIANA MALOTO VS. COURT OF APPEALS 158 SCRA 451 (1988):
‣ It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an
effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator.

‣ In this case, while animus revocandi, or the intention to revoke, may be conceded, for that is a state of
mind, yet that requisite alone would not suffice. “Animus revocandi is only one of the necessary elements
for the effective revocation of a last will and testament.

‣ The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by another person in his presence and under his express
direction.

‣ It is not imperative that the physical destruction be done by the testator himself. It may be performed by
another person but under the express direction and in the presence of the testator. Of course, it goes without
saying that the document destroyed must be the will itself.

‣ Presumption of Revocation
‣ The loss or unavailability of a will may, under certain circumstances, give rise to the presumption that it had been
revoked by physical destruction when:

a. It is shown to have been in the possession of the testator, when last seen, or

b. The testator had ready access to the will and it cannot be found after his death.

‣ GAGO VS. MAMUYAC 49 PHIL. 902 (1927):


‣ The law does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore
becomes 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 or be inferred from evidence showing that after due
search the original will cannot be found.

‣ Where a will which cannot be found is shown to have been in the possession of the testator, when last
seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or
destroyed. The same presumption arises where it is shown that the testator had 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 any other person without the knowledge or
authority of the testator.

‣ The force of the presumption of cancellation or revocation by the testator, while varying greatly, being weak or
strong according to the circumstances, is never conclusive, but may be overcome by proof that the will was
not destroyed by the testator with intent to revoke it.

‣ In a great majority of instances in which wills are destroyed for the purpose of revoking them there is no
witness to the act of cancellation or destruction and all evidence of its cancellation perishes with the testator.
Copies of wills should be admitted by the courts with great caution. When it is proven, however, by proper
testimony that a will was executed in duplicate and each copy was executed with all the formalities and
requirements of the law, then the duplicate may be admitted in evidence when it is made to appear that the
original has been lost and was not cancelled or destroyed by the testator.

EFFECTIVITY OF THE REVOCATION CLAUSE IN CASE OF REVOCATION BY SUBSEQUENT WILL

Article 832. A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by
reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation. (740a)

APPLICABILITY OF ART. 832


‣ Art. 832 talks about revocation by subsequent will or codicil, whether express or implied

RULE IN ART. 832; RULE AS TO THE EFFECTIVITY OF A REVOCATION CLAUSE


‣ RULE: A VALID REVOCATION MADE IN A SUBSEQUENT INSTRUMENT IS ABSOLUTE, IT IS EFFECTIVE EVEN IF THE HEIRS IN
SUCH INSTRUMENT ARE UNQUALIFIED OR UNWILLING TO INHERIT.

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‣ But the revoking will must be valid and it remains valid even if the heirs instituted are disqualified.
‣ The efficacy of the revocatory clause does NOT depend on the testamentary dispositions of the revoking will, unless
the testator so provides.

‣ Revocation is, generally speaking, an absolute provision, independent of the acceptance or capacity of the new heirs.

‣ Example: X executes a will, naming A as his universal heir. Two years later, X executes a second will revoking the first
and naming B as his universal heir. X then dies and B renounces the inheritance. The first will remains revoked.

‣ The rule laid down in this article will apply even if the revocation of the prior will by the subsequent will is implied (by
incompatibility of provisions, not by a revocatory clause).The intent of the testator to set aside the prior institutions is,
in either case, clear.

‣ EXCEPTION: IN CASE OF CONDITIONAL REVOCATIONS FALLING UNDER THE DOCTRINE OF DEPENDENT RELATIVE
REVOCATION, THE REVOCATION MADE IN A SUBSEQUENT WILL MAY BE INEFFECTIVE.
‣ An exception to the general rule is an instance where the testator provides in the subsequent will that the revocation
of the prior one is dependent on the capacity or acceptance of the heirs, devisees, or legatees instituted in the
subsequent will.

CONDITIONAL REVOCATIONS (DOCTRINE OF DEPENDENT RELATIVE REVOCATION)


‣ Summary of the rules in Art. 830, 832 and the Doctrine of Relative Revocation
1. A PRIOR WILL IS VALID AND EFFECTIVE IF THE REVOKING WILL IS VOID OR REVOKED.
‣ This is the rule in Art. 830 in relation to Molo vs Molo

‣ In this case, there is no revocation

2. A PRIOR WILL IS STILL REVOKED EVEN IF HEIRS IN THE SUBSEQUENT WILL CANNOT INHERIT (ART. 832)
‣ The heirs cannot inherit due to predecease, incapacitated, or renunciation.

‣ Because the revoking will is nonetheless valid, its validity does not depend on the capacity or willingness of the
heirs

‣ EXCEPTION: UNDER THE DOCTRINE OF DEPENDENT RELATIVE REVOCATION, IN THIS CASE, THE PRIOR WILL IS NOT
REVOKED
‣ This doctrine applies if the revocation is conditional, meaning the testator intended the revocation to be
dependent on the effectivity of the institutions of subsequent wills

‣ In other words, the testator intended that if the subsequent heirs either predecease, are incapacitated or are
unwilling to inherit, he would not have revoked the prior will

‣ A dependent relative revocation applies only if it appears that the testator intended his act of revocation
to be conditioned on the making of a new will or on its validity, or efficacy.

‣ The testator’s intent to revoke was conditional on the validity of the subsequent will.

‣ Definition and Scope of the Doctrine of Dependent Relative Revocation


‣ The rule is established that where the act of destruction is connected with the making of another will so as fairly
to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new
disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of
the new disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the
revocation fails and the original will remains In full force.(Molo v. Molo)

‣ This is the doctrine of dependent relative revocation. The failure of the new testamentary disposition, upon whose
validity the revocation depends, is equivalent to the non-fulfillment of a suspensive condition, and hence prevents the
revocation of the original will. But a mere intent to make at some time a will in place of that destroyed will not render
the destruction conditional. It must appear that the revocation is dependent upon the valid execution of a new will.
(Molo v. Molo)

‣ What if the institution of heirs, legatees, or devisees in the subsequent will is subject to a suspensive condition, is
the revocation of the prior will absolute or conditional?
‣ It always depends on the testator’s intent. If the subsequent will contains a revocatory clause which is absolute or
unconditional, the revocation will be absolute, and the happening or non-happening of the suspensive condition
will be immaterial. If, however, the testator states in the subsequent will that the revocation of the prior will is
subject to the occurrence of the suspensive condition, or if the will does not contain a revocatory clause, the
revocation will depend on whether the condition happens or not.

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‣ If the suspensive condition on which an institution depends does not occur, the institution is deemed never to have
been made and the prior institution will be efficacious. This is in accord with the juridical nature of suspensive
conditions, and is an instance of dependent relative revocation

‣ Is the rule of dependent relative revocation applicable if the revocation of the will is by physical destruction?
‣ In Molo, the Supreme Court held, in an obiter, that the physical destruction of the will did not revoke it, on the
inference, drawn by the Court, that the testator meant the revocation to depend on the validity of a new one.

‣ MOLO V. MOLO (90 PHIL. 37)


‣ This doctrine is known as that of “dependent relative revocation”, and is usually applied where the testator
cancels or destroys a will OR executes an instrument intended to revoke a will with a present intention to
make a new testamentary disposition as a substitute for the old, and the new disposition is not made or, if made,
fails of effect for some reason.

‣ The doctrine is not limited to the existence of some other document, however, and has been applied where a will
was destroyed as a consequence of a mistake of law
‣ In this case, the court concluded that, the destruction of the prior will by the testator cannot have the effect of
defeating the effectivity of such prior will because of the fact that it is founded on the mistaken belief that the
subsequent will of 1939 has been validly executed and would be given due effect.

‣ The theory on which this principle is predicated is that the testator did not intend to die intestate. And this
intention is clearly manifest when he executed two wills on two different occasions and instituted his wife as
his universal heir. There can therefore be no mistake as to his intention of dying testate.

‣ In Molo, the testator executed a subsequent will 21 years after execution a prior will. The subsequent will contained
a revocation clause but was NOT admitted into probate for failure to comply with the requirements of law. Thus, the
subsequent will was void. The court held that the first will was still effective and not considered revoked since the
the subsequent will containing the revocatory clause was void. Thus, if the will is void, the revocatory clause in
such will is likewise void and inefficacious.
‣ The opponents countered by saying that the prior will remains void as it could not be found and thus presumed
to have been destroyed by the testator (note that this is also a mode of revocation, by physical destruction)
‣ Court held that even if such will can be considered physically destroyed, the revocation cannot be given effect
due to the Doctrine of Dependent Relative Revocation. The prior will remains valid.
‣ BALANE:
‣ Apart from the fact that the statement is obiter (the facts did not clearly show that the will had been destroyed),
it is arguable whether the prior will should be deemed to subsist despite its physical destruction. Can it not be
argued that the act of the testator in destroying the will in fact confirmed his intent to revoke it? Was the
Supreme Court not drawing too remote an inference? The case of Diaz v. De Leon might be more instructive.
‣ The prior will should not be given effect because by physical destruction, the testator definitely shows his intent
to revoke it. First by executing a subsequent will with a revocation clause and second by physical destruction.
So why would you give effect to such prior will?
‣ DIAZ VS. DE LEON (43 PHIL. 413 [1922])
‣ In this case, a subsequent will was executed by the testator which contained a revocation clause to revoke his
prior will. The testator also revoked the prior will by means of physical destruction. However, the subsequent will
was later disallowed in probate as it did not comply with the requirements of validity.

‣ The issue was whether or not the prior will should be given effect

‣ Court said it should NOT be given effect. The intention of revoking the will is manifest from the established fact
that the testator was anxious to withdraw or change the provisions he had made in his first will. This fact is
disclosed by the testator’s own statements to the witnesses.The original will herein presented for probate having
been destroyed with animo revocandi, cannot now be probated as the will and last testament.

‣ Thus, if the prior will was revoked not only by express revocation by a subsequent will but also with physical
destruction it can be said that the intent of the testator was to definitely revoke such prior will. It seems that the
doctrine of Dependent Relative Revocation is NOT applicable to give it effect.
‣ For DRR to apply, it must clearly appear that the testator intended the first will to be effective if the subsequent will
later turns out to be void or ineffective.

REVOCATION BASED ON FALSE OR ILLEGAL CAUSES

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

APPLICABILITY OF ART. 833; REVOCATIONS BASED ON FALSE CAUSES


1. REVOCATIONS BASED ON FALSE CAUSE
‣ The following requisites must be present:

a. The cause must be concrete, factual and NOT purely subjective


‣ The testator must state the reason or cause of the revocation for Art. 833 to apply, if he does not, then the
revocation is valid under Art. 833

‣ The cause must not be merely based on the testator’s personal judgment, opinions or bias

‣ BALANE: If, for example, a testator were to revoke on the stated ground that he has learned that the heir was
an Ilocano and all Ilocanos are bad, the revocation would be valid. The ground is blind and irrational prejudice
(as all prejudices are) but a purely subjective one and will not invalidate the revocation under this article
b. It must be false
c. The testator must NOT know of its falsity
‣ In other words, the testator has a misconception of the truthfulness of the cause

d. It must appear from the will that the testator is revoking because of the cause which is false
2. REVOCATIONS BASED ON ILLEGAL CAUSES
‣ If the cause is simply illegal, then the rule in Art. 833 also applies.

‣ It must be noted, however, that the illegal cause should be stated in the will as the cause of the revocation

‣ Art. 833 covers ANY kind of revocation

RULE IN ART. 833; RULE IF THE REVOCATION BY THE TESTATOR IS BASED ON A FALSE OR ILLEGAL CAUSE
‣ RULE: A REVOCATION OF A WILL BASED ON A FALSE CAUSE OR AN ILLEGAL CAUSE IS VOID.
‣ Wills are revocable ad nutum, at will or at the testator’s pleasure (Art. 828). Testator may revoke his will for any reason
or no reason at all. He does not need a cause for revoking

‣ The rule in Art. 833 is based on the fact that the law respects the testator’s true intent, such at it sets asides a
revocation that does not reflect such intent.

‣ The extension of the coverage of this Article to illegal causes in effect restricts the testator’s freedom to revoke. There
is no question of mistake in such a case, which might vitiate the testator’s autonomy of will.

‣ Balane: If the principle is that a will is revocable ad nutum, then it should indeed be revocable at pleasure, whatever
the testator’s motives or reasons might be, and however impure or blemished they might be, as long only as he
acts freely and knowingly. A testamentary disposition is, after all, a gratuitous grant, and can be withdrawn for any
reason, or for no reason. The rule in this article regarding nullity of revocation for an illegal cause limits this
freedom, albeit for laudable public policy considerations

INAPPLICABILITY OF ART. 833 IN COMPLETE PHYSICAL DESTRUCTION OF HOLOGRAPHIC WILLS


‣ Note that the Rule in Art. 833 does NOT apply in case the mode of revocation was physical destruction (complete
destruction rather) of a holographic will.

‣ Such as by burning, tearing or obliterating the will in a manner as to completely destroy the will

‣ If the revocation is by complete physical destruction, and the revoked will is holographic, then though the revocation
be null and void, probate will not be possible since in a probate of a holographic will, the will itself must be presented.
(Gan v. Yap, Article 811), unless a copy survives (Rodelas v. Aranza)

‣ What is the holographic will was revoked by physical destruction but the cause is false or illegal, but the will is merely
cancelled or it can still be read as it was not completely destroyed? It seems like the will is still valid as the revocation is
void under Art. 833

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RECOGNITION OF PATERNITY IN A WILL

Article 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made
should be revoked. (741)

RECOGNITION OF ILLEGITIMATE FILIATION AS AN IRREVOCABLE ACT


‣ RULE: THAT PART OF A WILL WHICH RECOGNIZES AN ILLEGITIMATE CHILD IS NOT REVOCABLE.
‣ Recognition is an irrevocable act. Therefore, even if the will is revoked, the recognition remains effective

‣ Note that this is one instance where a revoked will may be submitted for probate
‣ What if the will was void?
‣ Under the Family Code, admission of illegitimate filiation in a will would constitute proof of illegitimate filiation. (Art. 175,
FC)

‣ Basically, the principle laid down in Article 834 remains unaltered regarding these admissions contained in wills.

‣ Note that recognition is NOT an act of disposition.

SUBSECTION 7: REPUBLICATION AND REVIVAL OF WILLS

REPUBLISHING OR REVIVING A VOID OR REVOKED 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)

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

APPLICABILITY OF ART. 835 AND 836


‣ ART. 835 COVERS: VOID WILLS AS TO ITS FORM (DUE TO FORMAL DEFECTS)
‣ A will is void as to form if it fails to comply with the requirements of Articles 804-808; 810-814; 818 and 819.

‣ What if the testator has no testamentary capacity is this a formal defect?


‣ BALANE: It is not a formal defect since it’s not a formal requirement under the Articles 804-808; 810-814; 818 and
819. But under Art. 839 which pertains to grounds for disallowance of wills into probate based on formal defects, it
is a ground for disallowance.
‣ ART. 836 COVERS WILLS WHICH ARE:
a. VOID FOR REASONS OTHER THAN FORMAL DEFECTS, OR
‣ Such as a will that institutes one of the three attesting witnesses

b. REVOKED

RULES AS TO THE REPUBLICATION OR REVIVAL OF VOID OR REVOKED WILLS


1. VOID WILL DUE TO FORMAL DEFECTS
‣ The only way to republish it is to execute a subsequent will and reproduce (copy out) the dispositions of the
original will
‣ Mere reference to the prior will in the subsequent will is NOT enough.

2. VOID WILL FOR REASONS OTHER THAN FORMAL DEFECTS OR REVOKED WILLS
‣ The only thing necessary to republish it is for the testator to execute a subsequent will or codicil referring to the
previous will.

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‣ Ex: “I hereby republish and revive my will of March 24, 1992”

‣ There is no need to reproduce the provisions of the prior will in the subsequent instrument.

‣ BALANE: It seems arbitrary that the rules for republication should be different in cases where the original will is void as to
form and those where it is not. The explanation is found in the fact that Article 835 is derived from Argentine law and
Article 836, from California law. Our Code is a patchwork quilt.

REVOCATION OF A SUBSEQUENT “REVOKING” WILL DOES NOT REVIVE THE REVOKED PRIOR
WILL

Article 837. If after making a will, the testator makes a second will expressly revoking the first, the revocation of the
second will does not revive the first will, which can be revived only by another will or codicil. (739a)

APPLICABILITY OF ART. 837


‣ It only applies when a testator makes an original will (first will) and then makes a subsequent instrument (second
will) expressly revoking the first will, and then the testator revokes the second will.
‣ Remember that, in order to effectively revoke the first will, such second will must be valid and admitted into probated

‣ Note that the manner of revocation of the first will must be EXPRESS (by revocation clause in the second will). But the
revocation of the second will need NOT be express.

‣ Based on the wording of Art. 837

RULES IN ART. 837 IN RELATION TO ART. 830


‣ RULE: A PRIOR WILL IS VALID AND EFFECTIVE IF THE REVOKING WILL (WHETHER EXPRESS OR IMPLIED REVOCATION) IS
REVOKED OR VOID.
‣ This is the rule in Art. 830 in relation to Molo vs Molo
‣ EXCEPTION: IF THE SUBSEQUENT WILL EXPRESSLY REVOKES THE PRIOR WILL, AND THE SUBSEQUENT WILL IS REVOKED,
THE FIRST WILL IS STILL REVOKED (ART. 837)

‣ The revocation of the second will does NOT revive the first will
‣ Thus, the first and second will is revoked, the third will alone (if any) remains effective

‣ Illustration:
‣ In 1985, X executed Will I

‣ In 1987, X executed Will II, expressly revoking Will I.

‣ In 1990, X executed Will III, revoking Will II.

‣ The revocation of Will II by Will III does not revive Will I, unless of course, Will III expressly revives Will I.

‣ What if the revocation of the first will was implied (by incompatibility)?
‣ Remember that the terms of this article apply only where the revocation of the first will by the second will is
EXPRESS.

‣ By contrary sense, if the revocation is implied, the article will NOT apply, therefore, in such a case, the
revocation of the second will by a third will REVIVES the first will, unless the third will is itself inconsistent with
the first.

‣ The first will can be revived only by another will or codicil


‣ Apply then Art. 836 on republication of revoked wills, the testator should execute a subsequent will or codicil
referring to the previous will.

‣ This reviving will may be the third will itself. The third will can both revoke the second will and revive the first
will.

‣ EXCEPTIONS TO EXCEPTION: IN THESE CASES, THE FIRST WILL IS NOT REVOKED, AND IS STILL EFFECTIVE:
1. Where the second will is holographic and it is revoked by complete physical destruction, because then,
the possibility of its probate is foreclosed (Gan vs. Yap, supra, Article 811), UNLESS a copy survives
(Rodelas vs. Aranza)


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‣ The first will REMAINS VALID since the revoking second (holographic) will cannot be admitted into probate.
Meaning, it did not effectively revoke the first will. An exception to the exception, is when there is a copy of
the second will
2. Where the third (or subsequent) will revives the first will
3. If the second will is invalid or cannot be admitted into probate

DEFECTIVE UNDERLYING PRINCIPLE OF ART. 837


‣ BALANE: Art. 837 is absurd. This article is based on the theory of instant revocation (that the revocatory effect of the
second will is immediate). Such a theory is, however, inconsistent with the principle that wills take effect mortis causa.
Furthermore, to be effective (for the purpose of revoking the first will) the second will must be probated. But it has already
been revoked by the third will. A revoked will now has to be submitted to probate?
‣ Remember the general principle in succession is that a will only takes effect upon the testator’s death, Art. 837 is
based on the principle that the revocatory effect (of the second will) is immediate; this is contrary to succession
principles.
‣ Note that this is another instance that a revoked will (the second will) may be submitted into probate

SUBSECTION 8: ALLOWANCE AND DISALLOWANCE OF WILLS

PROBATE AS A MANDATORY REQUIREMENT TO A WILL’S EFFECTIVITY

Article 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the
Rules of Court.

The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such
case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's a death shall govern.

The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on
petition of the testator.

Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be
conclusive as to its due execution. (n)

BALANE: The second and third paragraphs have become moot and academic since they are merely transitory provisions
pending the promulgation by the SC of rules, which they have already done. Rules on probate—both post-mortem and ante-
mortem are found in Rule 76 of the Rules of Court.

PROBATE AS A MANDATORY REQUIREMENT


‣ Probate of a will is mandatory. No will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court.

‣ Probate is a judicial proceeding to pass upon the “formal” validity of a will. It is mandatory, meaning the will will NOT be
effective unless and until it is probated.

‣ It is the first part of the two stages in a settlement proceeding, which are:

1. Probate: for extrinsic validity

2. Settlement proper: for intrinsic validity

‣ BALANE: Probate cannot be foregone, even if the heirs choose to do so. But the heirs can partition the estate after the will
has been probated, even if the partition is against the wishes of the will.
‣ GUEVARA VS. GUEVARA 74 PHIL. 479 (1943):

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‣ The proceeding for the probate of a will is one in rem, with notice by publication to the whole world and with personal
notice to each of the known heirs, legatees, and devisees of the testator, the due execution of the will and the fact that
the testator at the time of its execution was of sound and disposing mind and not acting under duress, menace, and
undue influence or fraud, must be proved to the satisfaction of the court, and only then may the will be legalized and
given effect by means of a certificate of its allowance signed by the judge and attested by the seal of the court; and
when the will devises real property, attested copies thereof and of the certificate of allowance must be recorded in the
register of deeds of the province in which the land lies.

‣ The presentation of a will to the court for probate is mandatory and its allowance by the court is essential and
indispensable to its efficacy.
‣ This rule is only for holographic wills, in the case of attested wills, it must be presented also but if it is destroyed,
without authority, it can still be probated by testimony of the attesting witnesses
‣ The law enjoins the probate of the will and public policy requires it, because unless the will is probated and notice
thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory.

‣ Even if the decedent left no debts and nobody raises any question as to the authenticity and due execution of the will,
none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance
or probate by the court, first, because the law expressly provides that “no will shall pass either real or personal estate
unless it is proved and allowed in the proper court”; and, second, because the probate of a will, which is a proceeding
in rem, cannot be dispensed with and substituted by any other proceeding, judicial or extrajudicial, without offending
against public policy designed to effectuate the testator’s right to dispose of his property by will in accordance with
law and to protect the rights of the heirs and legatees under the will thru the means provided by law, among which are
the publication and the personal notices to each and all of said heirs and legatees

KINDS OF PROBATE
1. POST-MORTEM PROBATE: PROBATE AFTER THE TESTATOR’S DEATH
2. ANTE-MORTEM PROBATE: PROBATE DURING THE TESTATOR’S LIFETIME
‣ Ante-mortem probate is a new feature introduced by the new Civil Code.

‣ The Code Commission explains the reason for the innovation thus: “Most of the cases that reach the courts involve
either the testamentary capacity of the testator or the formalities adopted in the execution of wills. There are relatively
few cases concerning the intrinsic validity of testamentary dispositions. It is far easier for the courts to determine the
mental condition of a testator during his lifetime than after his death. Fraud, intimidation and undue influence are
minimized. Furthermore, if a will does not comply with the requirements prescribed by law, the same may be corrected
at once. The probate during the testator’s life, therefore, will lessen the number of contests upon wills. Once a will is
probated during the lifetime of the testator, the only questions that may remain for the courts to decide after the
testator’s death will refer to the intrinsic validity of the testamentary dispositions. It is possible, of course, that even
when the testator himself asks for the allowance of the will, he may be acting under duress or undue influence, but
these are rare cases.” (The Code Commission Report, p. 53)

‣ Advantages of Ante-Mortem Probate:

‣ Easier for the court to determine the mental capacity of the testator, since he is still alive

‣ Fraud, intimidation and undue influence is minimized

‣ Lessens the number of contests upon wills

‣ Disadvantages of Ante-Mortem Probate

‣ It may be superfluous or futile because the testator can easily make a subsequent will revoking it. So unless the
testator is very sure, it might be useless to have an ante-mortem probate.

FINALITY OF A PROBATE DECREE


‣ RULE: ONCE A DECREE OF PROBATE BECOMES FINAL IN ACCORDANCE WITH THE RULES OF PROCEDURE, IT IS RES JUDICATA
OR CONCLUSIVE AS TO THE WILL’S DUE EXECUTION AND FORMAL OR EXTRINSIC VALIDITY, BUT NOT TO ITS SUBSTANTIVE OR
INTRINSIC VALIDITY.

‣ Thus, in this case, a void will (due to formal defects) may be given effect if probated and allowed, because of res
judicator

‣ DE LA CEMA VS. POTOT 12 SCRA 576 (1964):


‣ In this case, husband and wife executed a joint will (which, as we know, it prohibited under Art. 818), however,
when the husband died in 1938, the will was allowed and probated in 1939. This decision became final.
Subsequently, the wife died and the same joint will was sought to be probated, but the trial court disallowed

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probate on the ground that joint wills are void. The CA reversed and allowed the probate on the ground that the
1939 decision on the allowance of the will into probate as the husband’s was conclusive on the will’s due
execution.

‣ The court held that the CA erred and upheld the decision of the trial court. While res judicator operates to validate
the probate of the will of the husband even if it is void as a joint will, it does not include the wife’s will. The Court of
Appeals should have taken into account also, to avoid future misunderstanding, that the probate decree in 1939
could only affect the share of the deceased husband, It could not Include the disposition of the share of the wife,
who was then still alive, and over whose interest in the conjugal properties the probate court acquired no
jurisdiction, precisely because her estate could not then be in issue.

‣ A final judgment rendered on a petition for the probate of a will is binding upon the whole world and public
policy and sound practice demand that at the risk of occasional errors, judgment of courts should become
final at some definite date fixed by law (Interest rei publicae ut Jinis sit litium).

‣ The ultimate decision on whether an act is valid or void rests with the courts, and here they have spoken
with finality when the will was probated in 1939
‣ Thus, the joint will is valid as the husband’s will (by reason of res judicata) BUT void as to the wife

SCOPE OF A FINAL DECREE OF PROBATE


‣ RULE: A FINAL DECREE OF PROBATE IS CONCLUSIVE ONLY AS TO THE DUE EXECUTION OF THE WILL, AS IT IS ONLY
CONCERNED ABOUT A WILL'S EXTRINSIC OR FORMAL VALIDITY ONLY, NOT ITS SUBSTANTIVE OR INTRINSIC VALIDITY.

‣ The question is, what comprises the formal validity of wills?


‣ BALANE: You can refer to the Gallanosa and Dorotheo Cases or the grounds in Art. 839, all of which enumerates what
is covered by probate
‣ GALLANOSA VS. ARCANGEL 83 SCRA 676 (1978)
‣ In order that a will may take effect, It has to be probated, legalized or allowed in the proper testamentary
proceeding. The probate of the will Is mandatory.

‣ The testamentary proceeding is a special proceeding for the settlement of the testator’s estate. A special
proceeding is distinct and different from an ordinary action

‣ The finality of a decision of allowance of a will into probate is conclusive as to the due execution or formal
validity of the will. That means that the testator was of sound and disposing mind at the time when he
executed the will and was not acting under duress, menace, fraud, or undue influence; that the will was
signed by him in the presence of the required number of witnesses, and that the will is genuine and not a
forgery. Accordingly, these facts cannot again be questioned in a subsequent proceeding, not even in a
criminal action for the forgery of the will.
‣ After the finality of the allowance of a will, the issue as to the voluntariness of its execution cannot be
raised anymore
‣ It is a fundamental concept in the organization of every jural system, a principle of public policy, that, at the risk of
occasional errors, judgments of courts should become final at some definite date fixed by law. Interest rei publicae
utfinis sit litum The very object for which the courts were constituted was to put an end to controversies.

‣ After the period for seeking relief from a final relief or judgment under Rule 38 of the Rules of Court has expired, a
final judgment or order can be set aside only on the grounds of (a) lack of jurisdiction or lack of due process of law
or (b) that the judgment was obtained by means of extrinsic or collateral fraud. In the latter case, the period for
annulling the judgment is four years from the discovery of fraud

‣ Note that Gallanosa enumerates what are covered by or included in the term “formal validity” and therefore are
conclusively settled by a final decree of probate:

1. That the testator was of sound and disposing mind

2. That his consent was not vitiated

3. That the will was signed by him in the presence of the required number of witnesses, and

4. That the will is genuine

‣ BALANE: As to number 3, it would be better to state it thus: “that all the formal requirements of the law have been
complied with.” These formal requirements are those laid down in Articles 804-808, and 820-821 (if the will is an
attested one) or those provided in Articles 804 and 810-814 (if the will is holographic), and Articles 818-819.
‣ DOROTHEO VS. CA, 320 SCRA 12 [1999]
‣ This case also enumerates what formal validity encompasses:

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1. Whether the will submitted is indeed the decedent’s last will and testament;

2. Compliance with the prescribed formalities for the execution of wills;

3. Testamentary capacity

4. Due execution of the will

‣ Due execution means:

a. The testator’s sound and disposing mind;

b. Freedom from vitiating factors (duress, menace, undue influence);

c. Will genuine, not a forgery

d. Proper testamentary age

e. The testator is not expressly prohibited by law from making a will

‣ Another way of defining the scope of a final decree of probate is to refer to Article 839
‣ Objections to a will on any of the grounds enumerated in that article is foreclosed by a final decree of probate.

EXCEPTION TO THE SCOPE OF PROBATE


‣ A PROBATE COURT MAY PASS UPON THE WILL’S INTRINSIC VALIDITY IF IT IS INTRINSICALLY VOID ON ITS FACE
‣ While generally, probate only concerns itself with the formal or extrinsic validity of the will, the probate court, however,
may pass upon the intrinsic validity of the will, if on its face, it is intrinsically void

‣ A decree of probate, therefore, does not concern itself with the question of intrinsic validity and the probate court
should not pass upon that issue. This general rule, however, “is not inflexible and absolute”. The probate of a will
might become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations
demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the
issue.” (Nepomuceno vs. CA, 139 SCRA. 206 [1985], citing various cases). Or, as stated in another case, “save in an
extreme case where the will on its face is intrinsically void, it is the probate court’s duty to pass first upon the formal
validity of the will.” (Balanay v. Martinez, 64 SCRA 452 [1975])

‣ NEPOMUCENO VS. COURT OF APPEALS 139 SCRA 206 (1985)


‣ In this case, the dispositions in the will were found to be intrinsically void on its face since the testator himself
admitted that he was co-habiting with his common-law wife while legally married to another. The testator instituted
his common-law wife as an heir (which, of course, is prohibited under Art. 1028 in relation to Art. 729)

‣ The general rule is that in probate proceedings, the court’s area of inquiry is limited to an examination and
resolution of the extrinsic validity of the Will. The rule, however, is not inflexible and absolute. Given exceptional
circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon
certain provisions of the Will.

‣ The probate of a will might b come an idle ceremony if on its face it appears to be intrinsically void. Where
practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated,
the court should meet the issue. This is also based on the fact that separate proceedings to determine the intrinsic
validity of the testamentary provisions would be superfluous.

‣ BALANE: It seems, therefore, that, on the authority of Nepomuceno and the cases there cited, a probate court may
pass upon the issue of intrinsic validity if on the face of the will, its intrinsic nullity is patent.

GROUNDS FOR DISALLOWANCE OF WILLS INTO PROBATE

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

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(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing
his signature thereto. (n)

APPLICABILITY OF ART. 839


‣ Art. 839 is an EXCLUSIVE enumeration of the causes for disallowance of a will.

‣ It covers matters involved in formal validity. In relation to the Gallanosa Case, a probate decree once final, forecloses any
subsequent challenge on any of the matters enumerated in this article

‣ The issue of formal validity or nullity is precisely what the probate proceedings will determine.

RULE IN ART. 839


‣ RULE: IF ANY OF THE GROUNDS FOR DISALLOWANCE PROVIDED FOR UNDER ART. 839 IS PROVED, THE WILL SHALL BE SET
ASIDE AS VOID.

‣ A will is either valid or void, there is no such thing as a voidable will. If none of the defects enumerated in this article is
present, the will is valid; if any one of these defects is present, the will is void.

GROUNDS FOR DISALLOWANCE OF WILLS


1. THE FORMALITIES REQUIRED BY LAW HAVE NOT BEEN COMPLIED WITH
‣ The formalities referred to are those laid down in articles 804-814, 818-819 and 820-821

2. THE TESTATOR WAS INSANE, OR OTHERWISE MENTALLY INCAPABLE OF MAKING A WILL, AT THE TIME OF ITS EXECUTION
‣ This pertains to the testamentary incapacity of the testator.

‣ The will will be disallowed if:

a. The testator is under eighteen years of age or is a minor (Art. 797)

b. The testator is NOT of sound mind or is mentally incapacitated (Art. 798-801)

3. THE WILL WAS EXECUTED THROUGH FORCE OR UNDER DURESS, OR THE INFLUENCE OF FEAR, OR THREATS
‣ Force or violence in contract law

‣ Article 1335. There is violence when in order to wrest consent, serious or irresistible force is employed
‣ Duress, intimidation, influence of fear, or threats in contract law

‣ Art. 1335: There is intimidation when one of the contracting parties is compelled by a reasonable and well-
grounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his
spouse, descendants or ascendants, to give his consent. To determine the degree of intimidation, the age, sex and
condition of the person shall be borne in mind. A threat to enforce one's claim through competent authority, if the
claim is just or legal, does not vitiate consent.
4. THE WILL WAS PROCURED BY UNDUE AND IMPROPER PRESSURE AND INFLUENCE, ON THE PART OF THE BENEFICIARY OR OF
SOME OTHER PERSON

‣ Undue influence in contract law

‣ Article 1337: There is undue influence when a person takes improper advantage of his power over the will of
another, depriving the latter of a reasonable freedom of choice. The following circumstances shall be considered:
the confidential, family, spiritual and other relations between the parties, or the fact that the person alleged to have
been unduly influenced was suffering from mental weakness, or was ignorant or in financial distress.
5. THE SIGNATURE OF THE TESTATOR WAS PROCURED BY FRAUD
‣ Fraud in contract law

‣ Article 1338: There is fraud when, through insidious words or machinations of one of the contracting parties, the
other is induced to enter into a contract which, without them, he would not have agreed to.


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6. THE TESTATOR ACTED BY MISTAKE OR DID NOT INTEND THAT THE INSTRUMENT HE SIGNED SHOULD BE HIS WILL AT THE TIME
OF AFFIXING HIS SIGNATURE THERETO

‣ Mistake in contract law

‣ Article 1331: In order that mistake may invalidate consent, it should refer to the substance of the thing which is the
object of the contract, or to those conditions which have principally moved one or both parties to enter into the
contract. Mistake as to the identity or qualifications of one of the parties will vitiate consent only when such identity
or qualifications have been the principal cause of the contract. A simple mistake of account shall give rise to its
correction.

SECTION 2: INSTITUTION OF HEIR


The rules on institution of heir set forth in the provisions of this Section, apply as well to institution of devisees and legatees.
Thus, when the provisions in this section refers to “heirs”, it is taken to mean that it includes the devisees and legatees as well.

RULE OF THUMB: ISRAI


‣ ISRAI stands for the first letters of the following words: Institution, Substitution, Representation, Accretion, Intestacy.

‣ PARAS — Apply Institution if proper; if not, apply Substitution if proper; if not, apply Representation if proper; if not,
apply Accretion if proper; if not, apply Intestacy.

DEFINITION OF INSTITUTION OF HEIRS

Article 840. Institution of heir is an act by virtue of which a testator designates in his will the person or persons who are to
succeed him in his property and transmissible rights and obligations. (n)

‣ BALANE: The only way to institute an heir is by making a will. Note that the right of the testator to institute persons to
succeed only covers the “free portion” of his estate. The legitime is NOT subject to institution because it is reserved for
the compulsory heirs. He can, of course, dispose of the entire estate if he has no compulsory heirs

VALIDITY OF THE WILL DESPITE ABSENCE OR LACK OF INSTITUTION OR UNWILLING OR


UNWORTHY HEIRS

Article 841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not
comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be
incapacitated to succeed.
In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of
the estate shall pass to the legal heirs. (764)

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

APPLICABILITY OF ART. 841; WHEN THE ENTIRE ESTATE OF FREE PORTION IS NOT DISPOSED OF
‣ Art. 841 contemplates a situation where the entire estate or free portion is NOT disposed of, either because the testator
failed to dispose of it completely or partially, or the heirs (or devisees, or legatees) were unwilling or unworthy to inherit)

1. The will does not contain an institution of an heir (does not contain any testamentary disposition)
2. The institution does not cover the entire estate, and
3. The person instituted should not accept the inheritance (heir is unwilling)
4. The person instituted is incapacitated to succeed (heir is unworthy)

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RULES IN ART. 841 (AS SUPPLEMENTED BY ART. 851)


‣ In the cases in Art. 841, the will is nonetheless VALID. BUT, the following would be the consequence:
1. INTESTATE SUCCESSION, IF NOTHING IS DISPOSED OF
‣ Nothing will be disposed of if the will does not contain any testamentary disposition or all the heirs, devisees, or
legatees are unwilling or unworthy to inherit

‣ Even if the will does not contain any testamentary disposition, it will be formally valid provided it complies with all
the formal requisites. The will is valid to form but has no substance; but note that it has the same effect as though
the will is void as to form, both will result in intestacy

‣ BALANE: Thus, even if there is no institution of an heir, the will is valid, but it is useless unless it acknowledges an
illegitimate child or disinherits a compulsory heir.
2. MIXED SUCCESSION (TESTATE AND INTESTATE), IF ONLY A PART OF THE ESTATE OR FREE PORTION IS DISPOSED OF
‣ Testamentary succession as to the part disposed of by the will, and intestate succession as to the part not
disposed of by the will.

‣ The legitimes, of course, if there are any, pass by strict operation of law.

IS PROBATE NECESSARY IF THE WILL DOES NOT DISPOSE OF ANYTHING?


‣ RULE: IF THE WILL DOES NOT INSTITUTE AN HEIR, IT NEED NOT BE PROBATED
‣ EXCEPTION: A will needs to be probated, even if it does not institute an heir, if any of the following are present:

1. When the will recognizes an illegitimate child

2. When it disinherits a compulsory heir

‣ As seen in the case of Seangio vs Reyes, this was considered an act of disposition
3. When it instituted an executor

4. The second revoking will in Art. 837

HOW MUCH MAY BE DISPOSED OF BY WILL

Article 842. One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person
having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code
with regard to the legitime of said heirs. (763a)

HOW MUCH MAY THE TESTATOR DISPOSE IN HIS WILL?


‣ It depends on whether the testator has compulsory heirs

1. If the testator leaves NO compulsory heirs: The entire hereditary estate

‣ Also, the testator can disinherit his compulsory heirs but the only way to do this is to make a will

2. If the testator leaves compulsory heirs: The disposable or free portion only (the net hereditary estate minus the
legitimes)

‣ The amount of the legitimes depends on the kinds and number of compulsory heirs. Various combinations are
possible. Thus, the amount of the disposable portion is also variable.

MANNER OF INSTITUTION OR DESIGNATION OF THE HEIRS, DEVISEES OR LEGATEES

Article 843. The testator shall designate the heir by his name and surname, and when there are two persons having the
same names, he shall indicate some circumstance by which the instituted heir may be known.
Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can
be no doubt as to who has been instituted, the institution shall be valid. (772)

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Article 844. An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is possible,
in any other manner, to know with certainty the person instituted.
If among persons having the same names and surnames, there is a similarity of circumstances in such a way that, even
with the use of other proof, the person instituted cannot be identified, none of them shall be an heir. (773a)

Article 845. Every disposition in favor of an unknown person shall be void, unless by some event or circumstance his
identity becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid. (750a)

RULES IN THE DESIGNATION OF HEIRS IN THE WILL


1. IN THE INSTITUTION OF HEIRS, THE DESIGNATION OF THE HEIR’S NAME IS NOT NECESSARY, AS LONG AS HIS IDENTITY CAN BE
ASCERTAINED AND MADE KNOWN.

‣ Generally, the testator should designate the heir by his name and surname, and when there are two persons having
the same names, he shall indicate some circumstance by which the instituted heir may be known.

‣ Example: “ I institute Father Bernas”, “to my beloved girlfriends, Anne Sy of Rizal and Anne Sy of Makati”

‣ But, even though the testator may have omitted the name of the heir, should he designate him in such manner that
there can be no doubt as to who has been instituted, the institution is still valid

‣ Examples: “I institute my eldest brother, I institute the dean of the Ateneo Law School when this will was made”

‣ Also, designation is valid if the identity is not known at the time of making the will but can be known in the future by
circumstances .This is by establishing certain criteria at the proper time

‣ Example: “To whoever becomes the next President of the Philippines after my death”, “to the bar topnotcher of the
2040 bar exams”

‣ The designation of name and surname is directory. What is required is that the identity of the designated successor be
sufficiently established. This is most usually done by giving the name and surname, but there are other ways, as can
be gleaned from Article 843, par. 2.

2. AN ERROR IN THE NAME, SURNAME, OR CIRCUMSTANCES OF THE HEIR SHALL NOT INVALIDATE THE INSTITUTION WHEN IT IS
POSSIBLE, IN ANY OTHER MANNER, TO KNOW WITH CERTAINTY THE PERSON INSTITUTED

‣ If there is any ambiguity in the designation the ambiguity should be resolved in accordance with Article 789.

‣ Remember that rules on interpretation and construction of wills if there are patent or latent doubts or ambiguities such
as an imperfect description of heirs (Art. 789)

‣ Imperfect descriptions be cleared up as much as possible, as long as the testator’s intent as to who he is
instituting can be reasonably ascertained, the institution is not invalidated.

‣ Doubt is resolved in favour of testacy.

‣ The heir, legatee, or devisee must be identified in the will with sufficient clarity to leave no doubt as to the testator’s
intention. The basic rule in testamentary succession always is respect for and compliance with the testator’s wishes

3. IF IT IS NOT POSSIBLE TO RESOLVE THE AMBIGUITY, THE TESTATOR’S INTENT BECOMES INDETERMINABLE AND, THEREFORE,
INTESTACY AS TO THAT PORTION WILL RESULT. THE RESULT IS, THAT THE INSTITUTION IS VOID.

‣ This pertains to:

1. Persons having the same names and surnames, and there is a similarity of circumstances in such a way that,
even with the use of other proof, the person instituted cannot be identified (Art. 844, 2nd paragraph)

‣ In this case, none of them shall be considered heirs

2. Unknown persons (Art. 845)

‣ This refers to a successor whose identity cannot be determined because the designation in the will is so
unclear or so ambiguous as to be incapable of resolution

‣ These are heirs whose identity is unknowable or cannot be ascertained

‣ Example: “To someone who cares”

‣ This does not refer to a mere stranger, or someone whom the testator is not personally acquainted. The
testator may institute somebody who is a perfect stranger to him, provided the identity is clear.

‣ Example: “To the current President of the Philippines ”

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4. THE TESTATOR MAY INSTITUTION A DEFINITE CLASS OR GROUP OF PERSONS (CLASS DESIGNATION)
‣ A disposition in favor of a definite class or group of persons shall be valid.

‣ Example: “To my students in Succession of the Ateneo Law School Block B of the school year starting 2015”

INSTITUTION OF HEIRS COLLECTIVELY WITHOUT DESIGNATION OF SHARES

Article 846. Heirs instituted without designation of shares shall inherit in equal parts.

RULE OF EQUALITY UNLESS OTHERWISE STATED


‣ RULE: HEIRS INSTITUTED WITHOUT DESIGNATION OF SHARES SHALL INHERIT IN EQUAL PARTS.
‣ The general presumption in cases of collective designation is equality.

‣ If the testator intends an unequal apportionment, he should so specify.

APPLICABILITY OF ART. 846


‣ This article will apply only in testamentary succession, that is to say, only among testamentary heirs as such (or
devisees or legatees).

‣ It will not apply to an heir who is both a compulsory and a testamentary heir, for in that case the heir will get his
legitime and his testamentary portion (Art. 1062)

‣ Example: X, the testator, in his will institutes to one-fourth of his estate the following: A (his son), B (his cousin), and C
(his friend). A, being Xs compulsory heir, will get his legitime plus one-third of the one-fourth given by will. As
testamentary heir, A gets a share equal to those of B and C, but since A is also a compulsory heir, and is entitled to his
legitime over and above his testamentary share, he will end up getting a larger slice of Xs estate than B or C.
‣ Not explicitly covered by this article is an instance where the shares of some of the heirs are designated and
those of others are not.
‣ Example: “I institute to one-fourth of my estate A, B, C, and D, of which portion A is to get one-third, and B is to get
one-fourth.” The shares of C and D are unspecified. How much are they to get? Are they to divide equally the
remaining portion of the one-fourth of the estate, after deducting A’s and B’s portions (The remainder is 5/12 of 1/4)?

INSTITUTION OF HEIRS INDIVIDUALLY AND COLLECTIVELY WITHOUT DESIGNATION OF SHARES

Article 847. When the testator institutes some heirs individually and others collectively as when he says, "I designate as
my heirs A and B, and the children of C," those collectively designated shall be considered as individually instituted,
unless it clearly appears that the intention of the testator was otherwise. (769a)

Article 849. When the testator calls to the succession a person and his children they are all deemed to have been
instituted simultaneously and not successively. (771)

BALANE: It may be noted, amusingly, that, to the author’s knowledge, Art. 847 is the only article in the Code which contains
an example. This article is hardly a model for codification

APPLICABILITY OF ART. 847 AND 849


‣ Applies when the testator institutes some heirs individually and others collectively

‣ Ex: ”I designate as my heirs A and B, and the children of C" or when the testator calls to the succession a person and
his children

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RULES OF INDIVIDUAL AND SIMULATENEOUS INSTITUTION AND EQUALITY UNLESS OTHERWISE STATED
‣ RULE: THOSE COLLECTIVELY DESIGNATED SHALL BE CONSIDERED AS INDIVIDUALLY INSTITUTED, UNLESS IT CLEARLY APPEARS
THAT THE INTENTION OF THE TESTATOR WAS OTHERWISE.

‣ Meaning, those who have been individually and collectively designated are deemed to have been instituted
simultaneously and not successively

‣ This follows the basic rule of equality in the previous article. In addition, this article establishes the presumption that the
heirs collectively referred to are designated per capita along with those separately designated.

‣ If the testator intends a block designation, he should so specify.

‣ Examples:
1. “To my friend Dean Sedfrey Candelaria, my friend Atty. Giovanni Vallente, and to my students of Succession in the
Ateneo Law School Block B of the school year starting 2015”
‣ This is not to be interpreted as 1/3 to the Dean, 1/3 to the Atty. and 1/3 to the class. Rather, the entire of the estate
should be divided equally among the dean, the Atty. and to each member of the class C. Because the presumption
is that the members of the class were individually designated.
2. “To A, B and the children of C”
‣ This is not to be interpreted to mean that A and B would get 1/3 each and the children of C would all share in 1/3
portion. But rather, assuming C has 4 children, A would get 1/6, B would get 1/6 and each of the children of C
would get 1/6.

INSTITUTION OF BROTHERS OR SISTERS

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

APPLICABILITY OF ART. 848


‣ This article covers a case where the testator institutes his/her brothers and sisters, without indicating whether they are
full-or half blood, and it is later found out that the testator has full and half-blood siblings.

‣ Full blood means same parents; half blood means only one parent is the same

‣ BALANE: Does Article 848 apply even to illegitimate brothers and sisters, in cases where the testator is of legitimate
status and vice-versa? It seems so, because Article 848 makes no distinction. Ubi lex non disttnguit, nec nos
distinguere debemus.
‣ Also, this article refers only to testamentary succession, in intestacy, the rule is different

RULE OF EQUALITY UNLESS OTHERWISE STATED


‣ RULE: THE INHERITANCE SHALL BE DISTRIBUTED EQUALLY TO ALL HIS/HER SIBLINGS (REGARDLESS OF WHETHER FULL OR
HALF-BLOOD) UNLESS A DIFFERENT INTENTION APPEARS

‣ This article follows the general rule of equality laid down in Article 846. If the testator intends an unequal apportionment,
he should so specify.

RULE IS DIFFERENT IN INTESTACY


‣ The applicable provision in intestacy is Article 1006, which establishes a proportion of 2:1 between full- and half-blood
brothers and sisters (without prejudice to the rule prohibiting succession ab intestato (succession bar) between legitimate
and illegitimate siblings in Article 992)

‣ Thus, the rule on full and half-siblings depends on the kind of succession:

1. IN TESTAMENTARY SUCCESSION
‣ Equality of shares of full- and half-blood brothers and sisters, unless the testator provides otherwise (Article 848)

2. IN INTESTATE SUCCESSION

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‣ Proportion of 2:1 between full- and half-blood brothers and sisters (Article 1006), and only if the disqualification in
Article 992 does not apply

INSTITUTION BASED ON FALSE CAUSES

Article 850. The statement of a false cause for the institution of an heir shall be considered as not written, unless it
appears from the will that the testator would not have made such institution if he had known the falsity of such cause.
(767a)

APPLICABILITY OF ART. 850


‣ Art. 850 pertains to institution of heirs based on a false cause, which is generally valid, but void in exceptional cases,
depending on certain factors. Distinguish this from revocations based on false cause which is void under Art. 833

‣ Note that the testator has the absolute freedom to revoke and absolute freedom to institute, regardless of any reason,
these are components of testamentary freedom

‣ But Art. 833 and 850 limits this freedom, really, to respect the testator’s intent.

‣ Also, this article does NOT restrict the operation of Article 1028 in relation to Article 739 (on prohibited donations)
declaring void certain testamentary dispositions, by reason of public policy. The annulling factor in those two articles is
not falsity but illegality.

RULE WHEN THE INSTITUTION IS BASED ON A FALSE CAUSE


‣ Generally, the falsity of the stated cause for the testamentary institution does NOT affect the validity or efficacy of
the institution.
‣ This is because testamentary dispositions are ultimately based on liberality.

‣ Example: “I institute A as my heir because he is kind” Even though it is later proven that A is not kind, the institution is
nonetheless valid. This is because the “true” cause of the institution is not really the fact of kindness of the heir, but
rather the testator’s liberality.

‣ Thus, the mere fact that the testator gives a reason for an institution, and it is later proved that such reason is false,
does not invalidate the institution. Institutions based on false causes are generally valid, because they are deemed
based on the testator’s liberality.

‣ EXCEPTION: The falsity of the stated cause for institution will set aside the institution (will make it VOID), if certain
factors are present.
‣ What factors are these? Those factors the SC provides for us in the case of Austria
‣ AUSTRIA VS. REYES 31 SCRA 754 (1970)
‣ Before the institution of heirs may be annulled under article 850 of the Civil Code, the following requisites
must concur:
1. The cause for the institution of heirs must be stated in the will
2. The cause must be shown to be false and,
3. It must appear from the face of the will that the testator would not have made such institution if he had
known the falsity of the cause.
‣ Note that this last requisite is a both a requirement in institution and revocation based on false cause
‣ Article 850 is a positive injunction to ignore whatever false cause the testator may have written in his will for the
institution of heirs. Such institution may be annulled only when one is satisfied, after an examination of the will,
that the testator clearly would not have made the institution if he had known the cause for it to be false. The will
alone should provide the answer

‣ Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in the Civil Code:
The words of a will are to receive an interpretation which will give to every expression some effect, rather than one
which will render any of the expressions inoperative: and of two modes of interpreting a will, that is to be preferred
which will prevent intestacy.

‣ Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention on the part of
the testator to dispose of practically his whole estate, as was done in this case. Moreover, so compelling is the

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principle that intestacy should be avoided and the wishes of the testator allowed to prevail: that we could even
vary the language of the will for the purpose of giving it effect.

‣ BALANE: Exceptionally, therefore, the falsity of the cause will annul the institution if the three requisites enumerated
in Austria concur.

WHEN THE WHOLE ESTATE IS NOT COVERED BY THE INSTITUTIONS

Article 841. In such cases the testamentary dispositions made in accordance with law shall be complied with and the
remainder of the estate shall pass to the legal heirs. (764)

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

BALANE: Art. 851 has already been covered by Art. 841, it is redundant. But note that the wording of Art. 851 is erroneous.
Legal succession does not take place with respect to the remainder of the estate, but rather to the remainder of the
disposable (free) portion. There may, after all, be compulsory heirs whose legitimes will therefore cover part of the estate; the
legitimes do not pass by legal or intestate succession.

WHEN THE WHOLE ESTATE IS INTENDED TO BE DISPOSED OF BUT THE INSTITUTIONS DO NOT
COVER THE ENTIRE PORTION

Article 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or
the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and
their aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased
proportionally. (n)

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

APPLICABILITY OF ART. 852 AND 853


‣ Both articles will apply if the following elements are present:

1. There are several heirs


2. The testator intended them to get the whole estate or the whole disposable portion, as the case may be
‣ Note that this intent must be manifested in the will, if it was not, then Art. 841 and 851 applies

‣ If no compulsory heirs basis is the whole estate; if there are compulsory heirs, basis is the disposable free portion

3. The testator has designated a definite portion for each heir, but the total of such portions do NOT correspond
to the entire or disposable portion of the estate
‣ It does not correspond to the entire or disposable estate either because the total of the designated portions is less
than it or it exceeds it

‣ Note that this is different from Art. 841 in 851.

‣ Under Art. 852 and 853, the intent of the testator is to institute the heirs to the entire estate or disposable portion, as
manifested in the will. He simply made a mistake in the addition of the different portions each heir is to receive.

‣ Under Art. 841 and 851, no such intent to institute the heirs to the entire estate or disposable portion is manifest; and
the testator failed to dispose of his entire estate or the disposable portion, as the case may be.

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SECTION 2: INSTITUTION OF HEIR
RULES IN ART. 852 AND 853; PROPORTION INCREASES OR REDUCTIONS TO BE MADE
1. IF THE TOTAL OF ALL THE PORTIONS IS LESS THAN THE WHOLE ESTATE OR THE WHOLE DISPOSABLE PORTION (ART. 852)
‣ A proportionate increase will be made
‣ See examples in pages 259- 262 of the book

2. IF THE TOTAL OF ALL THE PORTIONS EXCEEDS THAN THE WHOLE ESTATE OR THE WHOLE DISPOSABLE PORTION (ART. 853)
‣ A proportionate reduction will be made

‣ See examples in pages 262- 264 of the book


‣ Such respective increases or reductions will respect the intent of the testator to institute the heirs to his entire or
disposable estate

PRETERITION; OMISSION OF THE COMPULSORY HEIRS, IN THE DIRECT LINE, FROM THE
INHERITANCE

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

Under Art. 854, you need to know the following:


1. What is the meaning of Preterition?
2. Who can be Preterited?
3. What is the effect of Preterition?

BALANE: Preterition means “to go beyond” or “to bypass”; it means omission. but omission from what? The answer to that
question is the basic problem in preterition.

APPLICABILITY OF ART. 854; RULES ON THE APPLICABILITY OF PRETERITION


1. WHAT CONSTITUTES PRETERITION IS NOT THE OMISSION FROM THE WILL, BUT THE TOTAL OMISSION FROM THE INHERITANCE.
‣ Preterition is NOT the total omission from the will, but rather, the total omission from the inheritance. For there to be
preterition, therefore, the heir in question must have received NOTHING from the testator by way of:

a. Testamentary succession
b. Legacy or devise
c. Intestacy, or
d. Donation inter vivos
‣ BALANE: The mention or non-mention in the will is NOT constitutive of preterition. Preterition must be total omission
from the inheritance
‣ An heir can be omitted in the will and not be preterited. This is seen in the case of Seangio vs Reyes.
‣ An heir can also be mentioned or included in the will but be preterited

‣ Thus, the definition of preterition by both Manresa and Castan is WRONG


‣ MANRESA: “Preterition consists in the omission of an heir in the will, either because he is not named, or,
although he is named as a father, son, etc., he is neither instituted as an heir nor expressly disinherited, nor
assigned any part of the estate, thus being tacitly deprived of his right to the legitime.”
‣ CASTAN: “By preterition is meant the omission in the will of any of the compulsory heirs, without being expressly
disinherited. It is thus a tacit deprivation of the legitime, as distinguished from disinheritance, which is an express
deprivation
‣ Examples:

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1. The testator has a son, A. The will states "I give 1/2 to B."
‣ A is not preterited because he gets the other half by intestacy as a compulsory heir
2. The testator has a son, A. The will states”I give 1/3 to B and 1/3 to C."
‣ A is not preterited because he gets the other 1/3, although his legitime is impaired
3. The testator has a son, A. The will states “I give 1/2 to B and 1/2 to C, to my son A, whom I dearly love, I give all
my love”
‣ A has been preterited even though he is mentioned in the will.
2. PRETERITION ONLY APPLIES IN TESTAMENTARY SUCCESSION, IT CANNOT APPLY IN TOTAL INTESTACY
‣ Because if total intestacy applies, then obviously no compulsory heirs will be prejudiced

‣ Preterition cannot apply if there is no will, or if the will is void.

‣ BALANE: No preterition if there is no will, compulsory heirs cannot be preterited if intestacy results because then, they
will not be totally omitted from the inheritance
3. PRETERITION IS DIFFERENT FROM DISINHERITANCE OR INEFFECTIVE DISINHERITANCE
‣ Preterition vs Disinheritance
‣ Preterition is total omission from the inheritance, without the heir being expressly disinherited. The implied basis of
the rule on preterition is inadvertent omission by the testator. Thus, if the testator explicitly disinherits the heir,
this article will NOT apply.

‣ Should the disinheritance be ineffective, for absence of one or other of the requisites for a valid disinheritance,
the heir is simply entitled to demand his rightful share.

‣ With respect to the compulsory heir, Preterition is a tacit deprivation; while Disinheritance is an express deprivation
by the Testator

‣ Preterition vs Ineffective Disinheritance


‣ Preterition is (total) omission from the inheritance, without the heir being expressly disinherited. The implied basis
of the rule on preterition is inadvertent omission by the testator. Thus, if the testator explicitly disinherits the heir,
this article will not apply.

‣ Should the disinheritance be ineffective, for absence of one or other of the requisites for a valid disinheritance, the
heir is simply entitled to demand his rightful share.

4. PRETERITION ONLY COVERS COMPULSORY HEIRS IN THE DIRECT LINE. THUS, A SPOUSE, AS A COMPULSORY HEIR, IS NOT
COVERED
‣ Art. 854 covers compulsory heirs in the direct line, whether living at the time of the execution of the will or born after
the death of the testator. It does NOT cover the surviving spouse, who is a compulsory heir, though NOT in the direct
line.

‣ Thus, a spouse cannot be preterited. Only compulsory heirs in the direct line may preterited

‣ Art. 964 defines what a direct line is. “A direct line is that constituted by the series of degrees among ascendants and
descendants.”

‣ Compulsory heirs in the direct line covers children or descendants, and in proper cases, (in default of children or
descendants) parents or ascendants.

‣ BALANE: This is a bad provision, it omits the spouse from its protection and remedies. All compulsory heirs should be
covered. BUT the spouse is not unprotected, his or her remedy is to file an action for the completion of his or her
legitime. Though the protection given by Art. 854 is much better.
‣ Remedy of the Spouse who was omitted from the inheritance? Completion of Legitime under Art. 906 and 907
‣ Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may
demand that the same may be fully satisfied.

‣ Art. 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on
petition of the same, insofar as they may be inofficious or excessive.

‣ Are illegitimate descendants or ascendants within the coverage of “compulsory heirs in the direct line”?
‣ BALANE: Yes, since the law does not distinguish
5. ART. 854 COVERS ADOPTED CHILDREN OF THE TESTATOR. THEY ARE DEEMED DESCENDANTS IN THE DIRECT LINE BY “FICTION
OF LAW”

‣ ACAIN VS IAC 155 SCRA 100 (1987)

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‣ Preterition consists in the omission in the testator’s will of the forced heirs or anyone of them either because they
are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited.

‣ Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not ascend or descend
from the testator, although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory
heir, there is no preterition even if she is omitted from the inheritance, for she is not in the direct line. (Art. 854, Civil
Code) However, the same thing cannot be said of adopted children
‣ Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted
person the same rights and duties as if he were legitimate child of the adopter and makes the adopted
person a legal heir of the adopter.
‣ BALANE: An adopted child, therefore, if totally omitted in the inheritance, is preterited within the contemplation of
Article 854 and can invoke its protection and consequences. Acain’s logic is the soul of simplicity: since an adopted
child is given by law the same rights as a legitimate child, vis-a-vis the adopter, then the adopted child can, in proper
cases, invoke Article 854 in the same manner that a legitimate child can. The law cited by Acain—Article 39 of PD 603
(the Child and Youth Welfare Code) was supplanted by Article 189(1) of the Family Code, which, however, has in turn
been supplanted by Secs. 17 and 18 of RA 8552 (the Domestic Adoption Act of 1998)
6. PRETERITION CAN ONLY BE KNOWN AT THE TIME OF THE TESTATOR'S DEATH, NOT DURING THE EXECUTION OF THE WILL
‣ This is because the compulsory heirs can only be determined at the time of the testator’s death

‣ Example: X has two sons, A and B. In 2005, X makes a will. He gives 1/2 to his son B and 1/2 to a third person C.
Note that A has no share in the will when it was made. In 2012, A dies. X dies only in 2013. In other words, A pre-
deceases his father, X. Even if there was a “potential” preterition of A when the will was made in 2005, he was not
preterited because when X died, A was already dead, thus he could no longer be a compulsory heir as this is
determined only at the time of the testator’s death, not when the will was made. Remember the principle that wills
only take effect at the testator’s death.

7. ART. 854 COVERS COMPULSORY HEIRS IN THE DIRECT LINE BORN AFTER THE EXECUTION OF THE WILL, WHETHER BORN
BEFORE OR AFTER THE TESTATOR'S DEATH

‣ Quasi-posthumous children
‣ One who, born during the life of his grand father, or other male ascendant, was not his heir at the time he made his
testament, but who by the death of his father became his heir in his lifetime (law.com)

‣ BALANE: There is a flaw in the wording of the Article. The phrase “whether living at the time of the execution of the
will or born after the death of the testator” does not, by its terms, include those compulsory heirs in the direct line
born after the execution of the will but before the testator’s death. Such children are, without doubt, to be
included within the purview of the protection of this Article. This gap is merely the result of careless drafting.
The proposed Spanish Code of 1851 expresses the legislative intent correctly: “whether living at the time of the
execution of the will or born subsequently, even after the testator’s death.”
‣ Also, remember that while you determine who the compulsory heirs are only at the time of the testator’s death,
he might have children conceived in his lifetime but unborn during his death. They are also deemed
compulsory heirs
‣ Art. 40 and 41, an unborn child is considered born for all purposes favourable to it provided they are born later.
8. IF THE OMITTED COMPULSORY HEIRS IN THE DIRECT LINE SHOULD DIE BEFORE THE TESTATOR, THE INSTITUTION SHALL BE
EFFECTUAL, WITHOUT PREJUDICE TO THE RIGHT OF REPRESENTATION.

‣ “If the omitted compulsory heirs should die before the testator, the institution shall be effectual”
‣ This pertains to cases of Predecease of Preterited Compulsory Heir

‣ This means that when a compulsory heir was omitted at the time of the execution of the will, but such heir pre-
deceases the testator, then the institution are effectual, meaning the omission of the compulsory heir is of NO
CONSEQUENCE, it does not make the institutions invalid, meaning there is NO preterition

‣ See comments in number 5 above. The determination of whether or not there are preterited heirs can be made
only upon the testator’s death. Should the preterited heir predecease (or be unworthy to succeed) the testator,
obviously the question of preterition of that heir becomes moot.

‣ “Without prejudice to the right of representation”


‣ However, should there be a descendant of that heir who is himself preterited, then the effects of preterition
will arise.
‣ Example: “X has two legitimate children: A and B. X makes a will which results in the potential preterition of A
because he was omitted from the inheritance. A predeceases X but leaves a legitimate child A-1, who is himself
completely omitted from the inheritance (A-1 being entitled to succeed X by representation). Art. 854 will apply, not
because A was preterited but because A-1 was preterited.”

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‣ Another example would be: if the preterited heir who pre-deceases is a child but the testator is survived solely by
ascendants, who are entitled to a legitime in default of descendants.

OMISSION WHICH DOES NOT CONSTITUTE PRETERITION


‣ The following cases, although the compulsory heir were prejudiced in their successional rights, there is NO preterition:

1. IF THE HEIR IN QUESTION IS INSTITUTED IN THE WILL BUT THE PORTION GIVEN TO HIM BY THE WILL IS LESS THAN HIS
LEGITIME

‣ REYES VS. BARRETTO-DATU 19 SCRA 85 (1967)


‣ In this case:

a. There was a compulsory heir in the direct line

b. Such heir was instituted in the will

c. The testamentary disposition given to such heir was LESS than her legitime

‣ Court held that there was no preterition because there was no total omission, inasmuch as the heir received
something from the inheritance.

‣ The heir who received something in the will but which is less than his entitled legitime, the remedy is not
found in Article 854 but in Articles 906 and 907, for completion of legitime
‣ Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him
may demand that the same may be fully satisfied.

‣ Art. 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be
reduced on petition of the same, insofar as they may be inofficious or excessive.

2. IF THE HEIR IS GIVEN A LEGACY OR DEVISE


‣ AZNAR VS. DUNCAN 17 SCRA 590 (1966)
‣ In this case, a one of the daughter of the testator (Helen) was merely left a legacy of P3,600. The rest of the
estate was given to another daughter (Lucy).

‣ The court said there was not preterition since the testator did not entirely omit Helen, but left her a legacy of
P3.600.00.

‣ Should the value of the legacy or devise be less than the recipient’s legitime, his remedy, as in number 1, is only for
completion of his legitime under Articles 906 and 907.

‣ BALANE: When a compulsory heir, in the direct line, receives something (such as a devise or legacy) from the
inheritance, no matter how small, there is NO preterition. Remedy is merely for completion of his legitime.
3. IF THE HEIR HAD RECEIVED A DONATION INTER VIVOS FROM THE TESTATOR
‣ The donation inter vivos is treated as an advance on the legitime under Articles 906, 909, 910 and 1062.

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

‣ Art. 909. Donations given to children shall be charged to their legitime. Donations made to strangers shall be
charged to that part of the estate of which the testator could have disposed by his last will.Insofar as they may
be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established
by this Code.

‣ Art. 910. Donations which an illegitimate child may have received during the lifetime of his fa- ther or mother,
shall be charged to his legitime. Should they exceed the portion that can be freely disposed of, they shall be
reduced in the man- ner prescribed by this Code.

‣ Art. 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly
provided, or if the donee should repudiate the inheritance, unless the donation should be re- duced as
inofficious.

4. IF THE HEIR IS NOT MENTIONED IN THE WILL NOR WAS A RECIPIENT OF A DONATION INTER VIVOS FROM THE TESTATOR,
BUT NOT ALL OF THE ESTATE IS DISPOSED OF BY THE WILL— THERE IS NO PRETERITION.

‣ The omitted heir in this instance would receive something by intestacy, from the portion not disposed of by the will
(the vacant portion).

‣ The right of the heir, should the vacant portion be less than his legitime, will simply be to demand completion of his
legitime, under Articles 906 and 907.

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CHAPTER 2: TESTAMENTARY SUCCESSION; SECTION 1: WILLS
SECTION 2: INSTITUTION OF HEIR
RULE IN ART. 854; EFFECT OF PRETERITION
‣ RULE: THE INSTITUTION OF HEIRS IS ANNULLED, BUT THE LEGACIES AND DEVISES ARE VALID TO THE EXTENT THAT THESE
LATTER DO NOT IMPAIR LEGITIMES.

‣ Note that this is about the only instance in the Philippine law on succession where there is still a practical effect in the
distinction between an heir and a legatee/devisee.

‣ Practically, a compulsory heir who was preterited can get more than his legitimate because all institutions of heirs are
annulled
‣ BALANE:
‣ The institution is not merely reduced, but is annulled or set aside. The heirs do not get anything by testamentary
succession. However, the result is NOT always total intestacy because the devices or legacies are valid as long as
they do not impair the legitimes.
‣ NUGUID VS. NUGUID 17 SCRA 449 (1966)
‣ To ‘annul’ means to abrogate, to make void. “The word ‘annul’ as used in statute requiring court to annul alimony
provisions of divorce decree upon wife’s remarriage means to reduce nothing; to annihilate; obliterate: blot out; to
make void or of no effect; to nullify; to abolish

‣ In this case, there was no specific legacies or bequests provided for. Thus the court said that the nullity is complete
and the testator died completely intestate.

‣ As of consequence of “annulment”, the universal institution to the entire inheritance results in totally abrogating the
will. Because, the nullification of such institution of universal heir—without any other testamentary disposition in the
will—amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 offers
no leeway for inferential interpretation. Giving it an expansive meaning will tear up by the roots the fabric of the
statute.

‣ Legacies and devises merit consideration only when they are so expressly given as such in a will. Nothing in Article
854 suggests that the mere institution of a universal heir in a will—void because of preterition—would give the heir so
insti- tuted a share in the inheritance. As to him, the will is inexistent. There must be, in addition to such institution, a
testamentary disposition granting him bequests or legacies apart and separate from the nullified institution of heir.

‣ As Manresa puts it, annulment throws open to intestate succession the entire inheritance

‣ Different Effects of “Preterition” and “Disinheritance”


‣ Preterition “consists in the omission in the testator’s will of the forced heirs or anyone of them, either because they
are not mentioned therein, or, though mentioned they are neither instituted as heirs nor are expressly disinherited.”
Disinheritance, in turn, “is a testamentary disposition depriving any compulsory heir of his share in the legitime for
a cause authorized by law. While disinheritance is express, preterition upon the other hand, is presumed to be
“involun- taria." Express as disinheritance should be, the same must be supported by a legal cause specified in the
will itself.

‣ In disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been illegally
deprived

‣ ACAIN VS IAC 155 SCRA 100 (1987)


‣ Preterition annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance
The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand
valid and respected, except insofar as the legitimes are concerned.

‣ The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator
results in totally abrogating the will because the nullification of such institution of universal heirs—without any other
testamentary disposition in the will—amounts to a declaration that nothing at all was written.

‣ Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway for inferential interpretation (Nuguid
v. Nuguid). No legacies nor devises having been provided in the will, the whole property of the deceased has been left
by universal title to petitioner and his brothers and sisters.

‣ The effect of annulling the institution of heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74
Phil. 185 [1943]) except that proper legacies and devises must, as already stated above, be respected.

‣ BALANE: To recapitulate, therefore, the correct rule on the effect of preterition: Preterition abrogates the institution of heir
but respects legacies and devises insofar as these do not impair the legitimes. Thus, if the will contains only institutions of
heirs and there is preterition, total intestacy will result; if there are legacies or devises and there is preterition, the legacies
or devises will stand, to the extent of the free portion (merely to be reduced, not set aside, if the legitimes are impaired) but
the institution of heirs, if any, will be swept away.

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CHAPTER 2: TESTAMENTARY SUCCESSION; SECTION 1: WILLS
SECTION 2: INSTITUTION OF HEIR
COMPLETION OF LEGITIME

Article 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not
disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the
shares of the other compulsory heirs. (1080a)

BALANE:
‣ This article is redundant and completely unnecessary if it is, as some believe, made to apply to cases of preterition. If there
is preterition, only Article 854 need be applied: that article is sufficient and self-implementing for cases of preterition. Art.
855 talks about completion of legitime, NOT preterition. The Code Commission meant this provision to apply in cases of
preterition, but if you analyse the provision, it really does not refer to preterition because something is left to the
compulsory heirs
‣ The remedy in this article pertaining to completion for legitime is superfluous. Since this article, properly understood, does
not apply to preterition but to completion of legitime, it is redundant, because the rules and manner of completing
impaired legitimes are laid down with greater detail in Articles 906, 907, 909, 910, and 911.

APPLICABILITY OF ART. 855; IMPAIRMENT OF LEGITIME


‣ This article applies if:
1. It is a case of Testamentary Succession (meaning there is a will)
‣ Thus, there must be a free portion which the testator disposes of in his will

2. There is an impairment of legitime of a share of a child or descendant, but NO preterition


‣ The compulsory heirs receive something from the inheritance, but it is LESS than his legitime. Thus, it applies in
case of Impairment of Legitime.

‣ This article is properly applied in cases where a compulsory heir is not preterited but left something (because not
all the estate is disposed of by will) less than his legitime. Article 855 really talks of a completion of legitime.

‣ BALANE: Art. 855 should not only apply to children and descendants but to ALL compulsory heirs, which includes
the surviving spouse, or parents and ascendants (in default of descendants)

RULE IN ART. 855; COMPLETION OF LEGITIME


‣ RULE: IF A COMPULSORY HEIR’S LEGITIME IS IMPAIRED, HE MAY FILE AN ACTION FOR COMPLETION OF HIS LEGITIME
‣ Art. 855 provides a remedy to a compulsory heir

‣ How is the legitime completed?


‣ Art. 855 says that it is completed by taking portions from the following (in the order of preference)

1. From the part of the estate not disposed of by the will, if any

2. Proportionally from the shares of the other compulsory heirs (if there is no estate not disposed of if it is
insufficient)

ERRONEOUS RULE IN ART. 855


‣ Art. 855 is erroneous because the remedy it provides will cause even more problems, to follow the rule it lays down leads
to a reduction of shares of compulsory heirs whose legitimes are already impaired.

‣ BALANE:
‣ The remedy is Art. 855 is ERRONEOUS! It will lead to absurd results
‣ Its coverage should extend NOT only to children and descendants, but to all compulsory heirs. As subsequent articles
(906, etc) mandate, any compulsory heir whose legitime is impaired may demand that the same be fully satisfied.
‣ The proportionate reductions (after consuming the undisposed portion) should be borne NOT by the compulsory heirs
as such but by the testamentary heirs, including the devisees and legatees. To make the compulsory heirs qua
compulsory heirs bear the reduction would mean reducing their own legitimes—a patent absurdity.

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SECTION 2: INSTITUTION OF HEIR
‣ That would be solving one problem by creating another: a legitimary “robbing Peter to pay Paul” solution. As correctly
stated by Article 907, it is testamentary dispositions that must be reduced if they impair or diminish the legitimes of
compulsory heirs.
‣ TOLENTINO
‣ Clearly, the present article suffers from very patent and fundamental errors. It could have well been omitted, and the
Code would have been much better with such omission.
‣ The determination and payment of the share of a compulsory heir omitted in the will can be made under other
provisions of the Code; the present article merely creates confusion.

WHAT SHOULD BE THE CORRECT RULE IN ART. 855? (ACCORDING TO BALANE AND TOLENTINO)
‣ The impaired legitime of the compulsory heir should be completed by taking portions from the following: (in the order of
preference)

1. From the part of the estate not disposed of by the will, if any

2. Proportionally from the shares of the testamentary heirs, devisees or legatees (if there is no estate not disposed
of if it is insufficient)

‣ Note that you can still reduce the share of a compulsory heir whose legitime is not impaired.

‣ TOLENTINO: To harmonize this article with the system of legitimes, and to erase its absurdity, it should perhaps be
rephrased as follows: “The share of the compulsory heir omitted in a will must first be taken from the part of the estate not
disposed of by the will, if any: if that is not sufficient, as much as may be necessary must be taken proportionally from the
shares of the other heirs given to them by will.
‣ BALANE: You should not reduce the legitime of the compulsory heirs, but rather, proportionally reduce the shares of the
testamentary heirs (who may also be compulsory heirs whose legitimate is not impaired, meaning, they get more than
entitled legitime)

NON-TRANSMISSION OF SUCCESSIONAL RIGHTS IN CASES OF PRE-DECEASE, INCAPACITY, OR


RENUNCIATION

Article 856. A voluntary heir who dies before the testator transmits nothing to his heirs.
A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the
inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code. (766a)

BALANE:
‣ Art. 856 is inaccurate and misleading
‣ Because it suggests that there are exceptions to the rule that an heir—in case of predecease, incapacity, or
renunciation— transmits nothing to his own heirs. This rule of non- transmission is absolute; there is no exception to it.
Representation does not constitute an exception, because in representation the person represented does not transmit
anything to his heirs. Representation is rather a form of subrogation
‣ Art. 856 says both too much and too little
‣ Too much—because this article is found in the chapter on testamentary succession (in the section on institution of
heir); thus it should speak only of voluntary or testamentary heirs. Yet the second paragprah speaks of compulsory
succession
‣ Too little—because if it wished to cover the entire gamut of rules on this point, the first paragraph only mentions pre-
decease but does not mention unworthiness of unwillingness to succeed.
‣ Too little—It also does not mention legal or intestate heirs. Neither does it provide for cases of disinheritance.
‣ Art. 856 should be modified to read:
‣ An heir—whether compulsory, voluntary, or legal— transmits nothing to his heirs in case of predecease, incapacity,
renunciation, or disinheritance. However, in case of predecease or incapacity of compulsory or legal heirs, as well as
disinheritance of compulsory heirs, the rules on representation shall apply.

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SECTION 2: INSTITUTION OF HEIR
APPLICABILITY OF ART. 856;
‣ Art. 856 talks about certain instances when a testamentary and complusory heirs cannot inherit due to certain causes

‣ These instances are:

1. Predecease (heir dies before testator)

2. Unworthiness (heir is incapacitated to succeed)

3. Unwillingness (heir renounces his share)


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RULE IN ART. 856; PROPER RULE OF NON-TRANSMISSION
‣ Art. 856: A voluntary heir who dies before the testator transmits NOTHING to his heirs. A compulsory heir who dies before
the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own
heirs except in cases expressly provided for in this Code.

‣ BALANE:
‣ This should not cover merely cases where the testamentary heir pre-deceases the testator, but also cases where he is
incapacitated to succeed (unworthiness) and renounces his inheritance (unwillingness).
‣ PROPER RULE: A VOLUNTARY, COMPULSORY OR LEGAL HEIR WHO DIES BEFORE THE TESTATOR, IS UNWORTHY OR
UNWILLING TO SUCCEED TRANSMITS NOTHING TO HIS HEIRS.

‣ Dead person cannot inherit. Unqualified or unwilling persons also cannot inherit.

‣ This rule on non-transmission is ABSOLUTE. But in certain cases, there may be representation
‣ There may be representation by the heirs of a pre-deceased or incapacitated/unworthy compulsory or legal heirs.
Though there can never be representation in case of unwilling heirs; and never in the case of testamentary heirs

‣ BALANE: Representation is NOT transmission, but rather, a form of subrogation


RULES ON NON-TRANSMISSION OF SUCCESSIONAL RIGHTS AND REPRESENTATION

PREDECEASE INCAPACITY RENUNCIATION DISINHERITANCE

Compulsory 1. Transmits Nothing


Succession 2. Representation
1. Transmits Nothing 1. Transmits Nothing
2. Representation 2. No Representation
Intestate
Succession
Not applicable
Testamentary 1. Transmits Nothing
Succession 2. No Representation

NOTE:
‣ In all cases, there is NO transmission of successional rights to the heir (regardless of the kind of heir or cause)
‣ Representation only applies in Compulsory and Intestate Succession, NEVER in Testamentary Succession
‣ Representation only applies in case of Pre-Decease and Incapacity, NEVER in Renunciation

SECTION 3: SUBSTITUTION OF HEIR

DEFINITION OF SUBSTITUTION

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

DEFINITION OF SUBSTITUTION
‣ The definition of substitution in Art. 857 is incomplete because it covers only simple substitution and excludes the
fideicommissary.

‣ In the fideicommissary, the second heir does not succeed in default of the first, but after the first.

‣ BALANE: The complete definition should be “Substitution is the appointment of another heir so that he may enter into
the inheritance in default of, or subsequent to, the heir originally instituted.”
‣ In simple substitutions, the testator simply makes a second choice, in case the first choice does not inherit.

‣ In fideicommissary substitutions, the testator imposes what is essentially a restriction or burden on the first heir, coupled
with a selection of a subsequent recipient of the property.

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BASIS OF SUBSTITUTION OF HEIRS
‣ The right to provide for substitutions is based on testamentary freedom.
‣ For simple substitution, the basis is the testator’s right to make a second choice as to who will succeed him, in case
his first choice fails to succeed.

‣ For fideicommissary substitution, the basis is the testator’s right to impose burdens on his heirs.

SUBSTITUTION IN RELATION TO CONDITIONAL INSTITUTIONS


‣ With respect to simple substitution, this section is properly a part of the next section (Section 4), which deals, inter alia,
with conditional testamentary dispositions. Simple substitution is really a form of conditional institution.

KINDS OF SUBSTITUTION

Article 858. Substitution of heirs may be:


(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary. (n)

KINDS OF SUBSTITUTION
‣ Art. 858 enumerates four kinds of substitution:

1. Simple / common (vulgar)—Article 859

2. Brief / compendious (brevilocua / compendiosa) —Article 860

3. Reciprocal (reciproca)—Article 861

4. Fideicommisary (fideicomisaria) — Art. 863

‣ But, in reality, there are only two kinds of substitution: the simple or common (vulgar) and the fideicommissary
(fideicomisaria).
‣ These two are mutually exclusive; i.e., a substitution must be one or the other, and cannot be both at the same time.

‣ The two others enumerated—the brief or compendious and the reciprocal are merely variations

‣ BALANE: The Spanish Code, in addition to the four here enumerated, had two more substitutions (both of which were
eliminated in the present Code): the pupilar and the ejemplar

SIMPLE/COMMON (VULGAR) SUBSTITUTION

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

CAUSES OF SIMPLE SUBSTITUTION


1. Predecease of the first heir

2. Renunciation of the first heir

3. Incapacity of the first heir

APPLICATION OF SIMPLE SUBSTITUTION


1. Full Simple Substitution

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‣ Testator may provide for simple substitution with ALL three causes by:

a. Specifying all the three causes,


b. By merely providing for a simple substitution
‣ A simple substitution, without a statement of the cases to which it refers, shall comprise of the three causes

2. Restricted Simple Substitution


‣ The testator may limit the operation of simple substitution by specifying only one or two of the three causes.

3. Grounds/Causes for Simple Substitution is Exclusive


‣ May the testator provide for a substitution on grounds other than those provided in this article?

‣ No, if the ground provided for is other than the three mentioned then it becomes a condition

4. In case of renunciation by the first heir, must the substitute have capacity at the time of the renunciation?
‣ Stated differently, supposing the substitute dies before the first heir manifests his renunciation, may the successors of
the substitute acquire the testamentary disposition?

‣ Either view is defensible and supportable by legal provisions

‣ The view that the substitute must have capacity at the time of the renunciation by the first heir finds support in
Article 1034, par. 3

‣ ““If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall
also be considered.”

‣ A simple substitution is a form of conditional institution; therefore, Article 1034, par. 3 can be applied to it.

‣ The opposite view—that the substitute need not have capacity at the time of the renunciation (as when he died
previously)—can be defended by an invocation of Articles 1042 and 533, par. 2:

‣ “Art. 1042. The effects of the acceptance or repudiation of the inheritance shall always retroact to the moment
of the death of the decedent.

‣ “Art. 533. “One who validly renounces an inheritance is deemed never to have possessed the same.”

‣ Will the substitute be disqualified if the cause of the first heir’s predecease is that the substitute killed him?

BRIEF OR COMPENDIOUS SUBSTITUTION

Article 860. Two or more persons may be substituted for one; and one person for two or more heirs. (778)

BRIEF OR COMPENDIOUS SUBSTITUTION DEFINED


‣ Brief or compendious substitution—is a possible variation of either a vulgar or a fideicomisaria.
‣ Distinctions between Brief and Compendious Substitution (according to some civilists)
1. Brief—two or more substitutes for one original heir

2. Compendious—one substitute for two or more original heirs

‣ BALANE: The majority of commentators, however, make no distinction between the two, and certainly the law uses the
terms interchangeably.

APPLICATION OF BRIEF/COMPENDIOUS SUBSTITUTION


‣ RULE: IF THERE ARE TWO HEIRS IN BRIEF/COMPENDIOUS SUBSTITUTION, BOTH MUST DEFAULT IN ORDER FOR SUBSTITUTION
TO TAKE PLACE

‣ If one is substituted for two or more original heirs, what is the effect of default of one but not all of the original heirs?

‣ Substitution will NOT take place; the share left vacant will accrue to the surviving co-heir or co-heirs.

‣ Substitution will take place only if ALL the original heirs are disqualified.

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‣ Example: “X makes the following provision in his will: “I institute A and B to 1/3 of my estate and nominate C as their
substitute.” If A predeceases B, the 1/3 portion, upon X’s death goes to B; there is no substitution by C. Substitution
occurs only if both A and B are disqualified.”
‣ Note: The obvious exception to this is a case where the testator provides for substitution in the event of the death (or
renunciation or incapacity) of any one of the original heirs.

RECIPROCAL SUBSTITUTION

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

RECIPROCAL SUBSTITUTION DEFINED


‣ Reciprocal substitution is governed by this article. Like the brief/compendious, reciprocal substitution is not a distinct
kind of substitution, but is rather a possible variation of the vulgar or the fideicomisaria.
‣ In reciprocal substitution, the heirs (as originally instituted) are substituted for each other based on either simple or
fideicommissary substitution.

‣ If both are disqualified, then no substitution will take place and the estate will pass by intestacy.

‣ Basically, in reciprocal substitution, the heirs are the substitutes of one another

APPLICATION OF RECIPROCAL SUBSTITUTION


1. If heirs instituted in unequal (or equal) shares should be reciprocally substituted, the substitute (heir) shall
acquire the share of the heir who dies, renounces, or is incapacitated
‣ Example: “I give 1/4 of my to A and 1/8 to B, and i institute them reciprocally” If A dies, his share will go to B; if B dies,
his share will go to A.
2. If there are more than one substitute, they shall have the same share in the substitution as in the institution.
‣ Example: A, B, and C are instituted, respectively, to 1/2, 1/3 and 1/6 of the estate. Should A predecease the testator,
B and C will acquire A’s 1/2 portion in the proportion of 2:1 (their testamentary shares being 1/3 and 1/6). Should B
predecease, A and C will get B’s 1/3 portion in the proportion of 3:1 (corresponding to the testamentary shares of 1/2
and 1/6). Should C predecease, A and B will share C’s 1/6 portion in the proportion of 3:2, by the same logic.

SUBSTITUTE SUBJECT TO THE SAME CONDITIONS IMPOSED ON THE HEIRS

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

‣ Art. 862 provides that the substitute shall be subject to the same charges and conditions imposed upon the instituted
heir

‣ Unless and testator has expressly provided the contrary, or the charges or conditions are personally applicable only to
the heir instituted.

‣ The rationale for this provision is that the substitute merely takes the place of the original heir.

‣ BALANE: Substitute “steps into the shoes” of the instituted heirs

FIDEICOMMISSARY SUBSTITUTION

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Article 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the
obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take
effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further,
that the fiduciary or first heir and the second heir are living at the time of the death of the testator. (781a)

Article 866. The second heir shall acquire a right to the succession from the time of the testator's death, even though he
should die before the fiduciary. The right of the second heir shall pass to his heirs. (784)

FIDEICOMMISSARY SUBSTITUTION DEFINED; ELEMENTS


‣ Elements of Fideicommissary Substitution
1. A first heir (fiduciary) who takes the property upon the testator’s death

2. A second heir (fideicommissary heir) who takes the property subsequently from the fiduciary

3. The second heir must be one degree from the first heir

4. The dual obligation imposed upon the fiduciary to preserve the property and to transmit it after the lapse of the
period to the fideicommissary heir

5. Both heirs must be living and qualified to succeed at the time of the testator’s death.

1. A FIRST HEIR (FIDUCIARY) WHO TAKES THE PROPERTY UPON THE TESTATOR’S DEATH
‣ This is the heir normally instituted to succeed

2. A SECOND HEIR (FIDEICOMMISSARY HEIR) WHO TAKES THE PROPERTY SUBSEQUENTLY FROM THE FIDUCIARY UPON THE
EXPIRATION OF THE TENURE OF THE FIDUCIARY

‣ The fideicommissary heir does not receive the property until the fiduciary’s right expires.
‣ Both heirs enter into the inheritance, one after the other, each in his own turn. This distinguishes the fideicomisaria
from the vulgar, in which the substitute inherits only if the first heir fails to inherit.

‣ Period of the first heir's tenure: Generally, the period indicated by the testator, BUT if the testator did not indicate a
period, then the fiduciary’s lifetime.

‣ Note, however, that, though the fideicommissary heir does not receive the property upon the testator’s death, his
right thereto vests at that time and merely becomes subject to a period, and that right passes to his own heirs
should he die before the fiduciary’s right expires (Article 866)

‣ Only one transmission is allowed, from the first heir to the second heir

3. THE SECOND HEIR MUST BE ONE DEGREE FROM THE FIRST HEIR
‣ The second heir MUST be in the first degree of blood relationship with the first heir (Palacios vs. Ramirez)
‣ As the word “degree” is used in Articles 963, 964 and 966

‣ In other words, must the second heir be either a child or a parent of the first heir

‣ PALACIOS VS. RAMIREZ 111 SCRA 704 (1982)


‣ Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir
originally instituted.” (Art. 857, Civil Code.) And that there are several kinds of substitutions, namely: simple or
common, brief or compendious, reciprocal, and fideicommissary. (Art. 858, Civil Code). According to Tolentino,
“Although the Code enumerates four classes, there are really only two principal classes of substitutions: the simple
and the fideicommissary. The others are merely variations of these two.

‣ In this case, the testator provided for fideicommisary substitution but the court ruled that such substitution
was VOID because the substitutes are not related to the heir originally instituted.
‣ Art. 863 of the Civil Code validates a fideicommissary substitution “provided such substitution does not go
beyond one degree from the heir originally instituted.”

‣ Manresa, Morell, and Sanchez Roman, however, construe the word ‘degree’ as generation, and the present
Code has obviously followed this interpretation, by proving that the substitution shall not go beyond one
degree ‘from the heir originally instituted.’

‣ The Code thus clearly indicates that the second heir must be related to and be one generation from the
first heir. From this, it follows that the fideicommissary can only be either a child or a parent of the first
heir. These are the only relatives who are one generation or degree from the fiduciary.

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‣ BALANE:
‣ It is not very clear how the phrase “one degree from the heir originally instituted” clearly indicates that the
second heir must be related to and be one generation from the first heir,” and thereby sweeps aside the
theory that degree simply means ‘transfer.’
‣ The phrase is ambiguous, it is ambiguous in our code and in the spanish code, though I agree that it
pertains to blood relationship.
‣ An exception is the case of an adopted child, they should be included under this kind of substitution as
they are legitimate children by legal fiction.
‣ The eminent civilist Justice Jose Vitug opines that the Palacios interpretation of degree as degree of
relationship “would disenfranchise a juridical person from being either a fiduciary or fideicommissary heir.
‣ Thus, fideicommisary substitutes only applies to natural persons
4. THE DUAL OBLIGATION IMPOSED UPON THE FIDUCIARY TO PRESERVE THE PROPERTY AND TO TRANSMIT IT AFTER THE LAPSE
OF THE PERIOD TO THE FIDEICOMMISSARY HEIR

‣ This requisite is the essence of fideicommisary substitutions

‣ Two obligations are imposed on the first heir or fiduciary:

a. Obligation to Preserve the property


b. Obligation to Transfer the property to the second heir after the lapse of a certain period
‣ These two obligations makes the position of the fiduciary basically that of a usufructuary, with the right to use
and enjoy the property but without the right to dispose

‣ If there is no absolute obligation to preserve and transmit, there is NO fideicommisary substitution, BUT the
institution is not necessarily void; it may be valid as some other disposition
‣ PCIB VS. ESCOLIN 56 SCRA 266 (1974)
‣ In this case, the testator instituted her husband to her entire estate as she had no compulsory heirs, along with
the right to manage, control, use enjoy and dispose of such estate; though there were certain properties in
Texas which could not be disposed of. The testator also provided that upon her husband’s death, the
remainder or residue of the estate would pass to her siblings.

‣ Court held that there was no substitution that took place. There was no fideicommissary substitution as there
was no clear obligation on the part of the heir to preserve the properties for a second heir (substitute heirs).
Neither was there simple substitution as none of its causes (predecease, renunciation or incapacity) was
provided for. No simple substitution either because the provision in the will contemplates the death of the
husband after the wife’s death, not before.

‣ Thus, the substitution provision in the will is VOID and in view of the invalidity of the provision for
substitution in the Will, the husband’s inheritance to the entirety of the wife’s estate is irrevocable and final.

‣ There are generally only two kinds of substitution provided for and authorized by our Civil Code (Articles
857-870), namely, (1) simple or common substitution, sometimes referred to as vulgar substitution (Article 859),
and (2) fideicommissary substitution (Article 863). All other substitutions are merely variations of these.

‣ Substitution occurs only when another heir is appointed in a will ‘so that he may enter into inheritance in
default of the heir originally instituted,’ (Article 857) and, in the present case, no such possible default is
contemplated.

‣ The siblings of the testator are not substitutes for the husband because, under her will, they are not to inherit
what the husband cannot, would not or may not inherit, but what he would not dispose of from his inheritance;
rather, therefore, they are also heirs instituted simultaneously with the husband. Such an institution (of the
siblings of the testator) was a simultaneous institution—on the one hand, of the husband subject to a
resolutory condition (which is his death), on the other, of the testator’s siblings subject to a suspensive
condition (the husband’s death); but not a fideicomisaria “because no obligation is imposed thereby
upon Hodges to preserve the estate or any part thereof for anyone else.
‣ BALANE: Just because the substitution is void, does NOT make the institution void. It is merely a different kind
of institution a double institution in this case. The first institution (to the husband) subject to a resolutory
condition (to the siblings), the second institution subject to a suspensive condition
5. BOTH HEIRS MUST BE LIVING AND QUALIFIED TO SUCCEED AT THE TIME OF THE TESTATOR’S DEATH.
‣ Note that this two-fold requirement is to be met only upon the testator’s death, and this applies not only to the
fiduciary but to the second heir as well.

‣ Upon the testator’s death, the second heir already acquires a VESTED right

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‣ Thus, the second heir need not survive the first heir; if the second heir dies before the first heir, the second heir’s
own heirs merely take his place (Article 866)

FIDEICOMMISARY SUBSTITUTION CANNOT PREJUDICE THE LEGITIME

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

‣ The legitime passes by strict operation of law, therefore the testator has no power over it.

‣ This article is echoed by Articles 872 and 904, par. 2.

MANNER OF PROVIDING FOR FIDEICOMMISSARY SUBSTITUTIONS

Article 865. Every fideicommissary substitution must be expressly made in order that it may be valid.
The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than those which
arise from legitimate expenses, credits and improvements, save in the case where the testator has provided otherwise.
(783)

Article 867. The following shall not take effect:


(1) Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or
imposing upon the fiduciary the absolute obligation to deliver the property to a second heir;

EXPRESS MANNER OF IMPOSING A FIDEICOMMISSARY SUBSTITUTION


‣ Every fideicommissary substitution must be expressly made in order that it may be valid.

‣ Two ways of making an express imposition:

1. By the use of the term fideicommissary


2. By imposing upon the first heir the absolute obligation to preserve and to transmit to the second heir (Art. 867)

ALLOWABLE DEDUCTIONS TO THE INHERITANCE (TO BE TRANSMITTED TO THE FIDEICOMMISSARY)


‣ The general rule is that the fiduciary should deliver the property intact and undiminished to the fideicommissary heir
upon the arrival of the period.

‣ The only deductions allowed in the absence of a contrary provision in the will are:

1. Legitimate expenses
2. Credits
3. Improvements
‣ These must pertain to necessary and useful expenses, not ornamental expenses.

DAMAGE OR DETERIORATION TO THE INHERITANCE


‣ RULE: THE FIDUCIARY MUST BEAR THE LOSS, DAMAGE, OR DETERIORATION IF IT IS DUE TO HIS FAULT OR NEGLIGENCE
‣ UNLESS, it is caused by a fortuitous event or ordinary wear and tear

RIGHT OF THE FIDEICOMMISSARY VESTS AT THE TIME OF THE TESTATOR'S DEATH

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Article 866. The second heir shall acquire a right to the succession from the time of the testator's death, even though he
should die before the fiduciary. The right of the second heir shall pass to his heirs. (784)

Article 777. The rights to the succession are transmitted from the moment of the death of the decedent.

Article 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights and
transmitting them to his heirs even before the arrival of the term.

‣ The second heir’s right vests upon the testator’s death, conformably to Article 777 and also to Article 878 (since, as far
as the second heir is concerned, the institution of him is one subject to a suspensive term).
‣ Thus, the second heir does not have to survive the first heir in order for the substitution to be effective. The
second heir’s own heirs simply take his place. His own heirs succeed to the vested right already possessed by the
second heir.

‣ But remember that the second heir must survive the testator, otherwise there would be no institution/substitution

INEFFECTIVE PROVISIONS IN A WILL

Article 867. The following shall not take effect:


(1) Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or
imposing upon the fiduciary the absolute obligation to deliver the property to a second heir;
(2) Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in
Article 863;
(3) Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed
in article 863, a certain income or pension;
(4) Those which leave to a person the whole or part of the hereditary property in order that he may apply or invest the
same according to secret instructions communicated to him by the testator. (785a)

Article 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are
void. (n)

INEFFECTIVE PROVISIONS IN A WILL


1. FIDEICOMMISSARY SUBSTITUTIONS WHICH ARE NOT MADE IN AN EXPRESS MANNER
‣ Note that the failure to expressly provide for a fideicommisary substitution does NOT automatically annul the
institution. It only means that the institution is not effective as a fideicommisary substitution, it could, however, be
something else. (See PCIB vs Escolin)

2. PROVISIONS WHICH CONTAIN A PERPETUAL PROHIBITION TO ALIENATE, AND EVEN A TEMPORARY ONE, BEYOND THE LIMIT
FIXED IN ARTICLE 863

‣ This pertains to prohibited institutions, not really to fideicommissary substitutions

‣ The limit referred to is in Art. 870.

‣ In institutions or substitutions, a perpetual prohibition or temporary prohibition (but for more than 20 years) to
alienate the inheritance is ineffective
‣ This is because of public policy

‣ BALANE: If the testator imposes a longer period than 20 years, the period is NOT void, but rather, the prohibition is
valid only for 20 years.

‣ So the disposition is not really void, contrary to what Art. 870 provides

‣ BUT in fideicommisary substitutions, the limit is the first heir’s lifetime.

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‣ Thus, this is an exception, the limitation in Art. 870 will not apply, rather, Art. 863 will apply, which allows, as a
period, the lifetime of the first heir.

3. THOSE WHICH IMPOSE UPON THE HEIR THE CHARGE OF PAYING, TO VARIOUS PERSONS SUCCESSIVELY, A CERTAIN INCOME OR
PENSION BEYOND THE LIMIT PRESCRIBED IN ARTICLE 863

‣ The testator may provide that the heir is charged with the obligation of paying pension or income to third persons

‣ Conformably to the limits set in Article 863, there can only be two beneficiaries of the pension, one after the
other, and the second must be one degree (of blood relationship) from the first.
‣ In other words, the first and second recipient must be within one degree from each other and it cannot extend
beyond the second recipient.

‣ Example: “I give my entire estate to X and impose upon him the obligation to give a P10,000 pension to Y and in Y's
death, to Y's son."

‣ But if the obligation is to give pension to Y and then in Y’s death, his grandson, then it is ineffective because they
are not within one degree from each other

‣ If the obligation is to give pension to Y and then in Y’s death, his son, then in the son’s death, to Y’s grandson,
then it is also ineffective because there can only be two beneficiaries.

‣ There is NO prohibition, however, on simultaneous beneficiaries.


‣ Example: “I give my entire estate to X and impose upon him the obligation to give a P10,000 pension to Y and Z
and in case of their deaths, to their sons.

4. THOSE WHICH LEAVE TO A PERSON THE WHOLE OR PART OF THE HEREDITARY PROPERTY IN ORDER THAT HE MAY APPLY OR
INVEST THE SAME ACCORDING TO SECRET INSTRUCTIONS COMMUNICATED TO HIM BY THE TESTATOR

‣ This pertains to “Dummy Provisions” where the testator provides for an ostensible heir or “dummy” for the purpose of
circumventing some prohibition or disqualification.

‣ Such as a testator instituting a dummy in order to benefit his mistress.

‣ The ostensible heir here is in reality only a dummy, because, in reality, the person intended to be benefited is the one
to whom the secret instructions refer.

‣ Note that the institution of such ostensible heir or “dummy” makes the institution VOID because there is no intent to
dispose.

‣ BALANE: The practical problem here, however, is the difficulty of establishing the fact of circumvention. Supposing
the ostensible heir conceals or destroys the secret instructions (something fairly easy to do) and claims as heir
under the testamentary provision as worded, what then? It would appear that, in the absence of proof, the
disposition is operative in favor of such ostensible heir.

EFFECTIVE OF INVALIDITY OR INEFFECTIVITY OF THE FIDEICOMMISSARY SUBSTITUTION

Article 868. The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs
first designated; the fideicommissary clause shall simply be considered as not written. (786)

EFFECTIVE OF INVALIDITY/INEFFECTIVITY OF THE FIDEICOMMISSARY SUBSTITUTION


‣ If the fideicommissary substitution (institution of the second heir) is void or ineffective, the institution of the first heir
simply becomes pure and unqualified.
‣ Void such as if the second heir is not related by one degree from the first heir

‣ Ineffective or inoperative such as if the second heir predeceases the testator or renounces

EFFECTIVE OF INVALIDITY/INEFFECTIVITY OF THE INSTITUTION OF THE FIRST HEIR IN FIDEICOMMISSARY SUBSTITUTIONS


‣ This article does not provide for a case where it is the institution of the first heir that is void or ineffective

‣ JUSTICE VITUG: When the fiduciary predeceases or is unable to succeed, the fideicommissary heir takes the inheritance
upon the death of the decedent
‣ BALANE: Vitug, however, does not elaborate. Suffice it to say that there is much to recommend the view that the nullity or
inefficacy of the institution of the fiduciary should not nullify the institution of the fideicommissary heir, but, on the

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SECTION 3: SUBSTITUTION OF HEIR
contrary, should make the right of the latter absolute and effective upon the testator’s death, as if no fiduciary had
been instituted. This is the best way to respect the intent of the testator which is to transmit to the fideicommissary heir
the property covered by the fideicommissary substitution, independently of the will of the fiduciary.

INSTITUTION OF SUCCESSIVE USUFRUCTUARIES

Article 869. A provision whereby the testator leaves to a person the whole or part of the inheritance, and to another the
usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of
article 863 shall apply. (787a)

‣ BALANE: This is similar to Art. 867, par. 3 on the heir having the obligation of paying pension or income to other persons.
It is NOT a fideicommissary substitution but its rulesand requirements in Art. 863 apply; and by analogy the other
provisions on fideicommissaries can also apply
‣ If the testator institutes successive usufructuaries, there can only be two usufructuaries, one after the other, and, as to the
two of them, all the requisites of Article 863 (on fideicommisary substitutions) must be present.

‣ In other words, if there can only be two successive usufructuaries and they should be within one degree (of blood
relationship) from each other
‣ Note that simultaneous (as distinguished from successive) usufructuaries are allowed and not restricted, the testator
can designate as many usufructuaries as he wants
‣ Also, just as there can be a substitution with regard to the usufruct, there can also be a substitution with regard to the
naked ownership.
‣ Example: "I give to A naked ownership, and to B the usufruct and upon B's death, to his son C.”

LIMIT ON INALIENABILITY OF THE INHERITANCE

Article 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are
void. (n)

‣ BALANE:
‣ This has nothing to do with substitution. It refers to simple institution of heir, devisee or legatee.
‣ This article is a recognition of the testator’s right to prohibit alienation and is also a restriction on the testator’s
testamentary freedom.
‣ It is based on public policy because if the property remains inalienable forever, it will be frozen and will negatively affect
the economy.
‣ If the testator provides for a period of inalienability of his properties, to be transmitted through succession. The
period should NOT be more than twenty years.
‣ What if it is more than twenty years? (Such as if he provides for 40 years, or the heir’s lifetime, which turns out to be
longer than 20 years)

‣ BALANE: The period should be reduced to twenty years. The disposition is NOT void, contrary what Art. 870 says.
This is to respect and give effect to the testator’s intent
‣ BUT remember that in fideicommisary substitutions, the limit is the first heir’s lifetime (Art. 863).

‣ What if the heir who is prohibited from disposing the inheritance sells it?

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CHAPTER 2: TESTAMENTARY SUCCESSION
SECTION 4: TESTAMENTARY DISPOSITIONS WITH A CONDITION OR TERM
SECTION 4: TESTAMENTARY DISPOSITIONS WITH A CONDITION OR TERM

KINDS OF TESTAMENTARY DISPOSITIONS

Article 871. The institution of an heir may be made conditionally, or for a certain purpose or cause. (790a)

Article 885. The designation of the day or time when the effects of the institution of an heir shall commence or cease shall
be valid.

BALANE:
‣ The section heading of section 4 is incomplete as it does not include modal dispositions. The wording of Article 871 is
incomplete as it does not include dispositions with a term, which is in Art. 885
‣ The right of the testator to impose conditions, terms or modes springs from testamentary freedom. If he has the right to
dispose of his estate mortis causa, then he has the right to make the dispositions subject to a condition, term, or mode.
This is the same basis for the right to provide for substitutions.

THREE KINDS OF TESTAMENTARY DISPOSITIONS AS TO EFFECTIVITY


1. DISPOSITIONS WITH A CONDITION
‣ Condition is defined in Article 1179: “Every obligation whose performance does not depend upon a future or uncertain
event, or upon a past event unknown to the parties, is demandable at once, x x x”

2. DISPOSITIONS WITH A TERM


‣ Term is defined in Article 1193, pars. 1 and 3.

‣ “Article 1193. Obligations for whose fulfillment a day certain has been fixed, shall be demandable only when that
day comes. xxxxx “A day certain is understood to be that which must necessarily come, although it may not be
known when, xxx”
‣ Difference of a term and condition?

‣ It lies in the certainty of fulfillment. Term pertains to a future certain event, a condition pertains to an uncertain
event (future or past, unknown to the parties).

3. DISPOSITIONS WITH A MODE


‣ Mode is defined in Article 882: “The statement of the object of the institution, or the application of the property
left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such
was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or
his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may
receive, together with its fruits and interests, if her or they should disregard this obligation.”

‣ Art. 871 and 872 pertains to general provisions applicable to all three
‣ Art. 873, 874, 875, 876, 877, 883 (par. 2), 879, 880, 881, 884 pertains to Conditional Dispositions
‣ Art. 878 and 885 pertains to Dispositions with a Term
‣ Art. 882 and 883 (par. 1) pertains to Modal Dispositions

TESTAMENTARY PROVISIONS CANNOT PREJUDICE THE LEGITIME

Article 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes prescribed
in this Code. Should he do so, the same shall be considered as not imposed. (813a)

‣ When a testator imposes any of the following upon the legitimes, is considered as NOT imposed:

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1. Charge
2. Condition
3. Substitution
‣ BALANE: The legitime passes by strict operation of law, independently of the testator’s will. This article is a logical
consequence of that principle.
‣ This rule is similar but broader than Art. 864 (on fideicommissary substitutions) and is also echoed in Article 904, par. 2

CONDITIONAL DISPOSITIONS

SUMMARY OF THE RULES ON CONDITIONAL DISPOSITIONS

KIND OF CONDITION EFFECT BASIS

Impossible Conditions
Art. 873
Illegal Conditions
Condition is VOID
Condition prohibiting a first
marriage

Condition prohibiting a a. Imposed by the deceased spouse, or by his/her


Art. 874
subsequent marriage asecendants or descendants: Condition is VALID

b. Imposed by anyone else: Condition is VOID

Condition that the heir make a


provision in his will in favor of the Disposition is VOID Art. 875
testator or of any other person

IMPOSSIBLE AND ILLEGAL CONDITIONS

Article 873. Impossible conditions and those contrary to law or good customs shall be considered as not imposed and
shall in no manner prejudice the heir, even if the testator should otherwise provide. (792a)

RULE ON IMPOSSIBLE OR ILLEGAL CONDITIONS


‣ RULE: THE IMPOSSIBLE OR ILLEGAL CONDITION IS SIMPLY CONSIDERED NOT WRITTEN.
‣ The testamentary disposition itself is not annulled; on the contrary, it becomes pure. Only the condition is VOID.

‣ Note that the rule in donations is the same (Art. 727), only the condition is affected, the disposition remains valid.

‣ This is because testamentary dispositions and donations share a common element, they are both gratuitous and
spring from the grantor’s liberality.

‣ The imposition of a condition does not displace liberality as the basis of the grant.

‣ On the other hand, the rule in obligations is different, in this case, the obligation which depends on the condition is
void.

‣ In obligations which are onerous (Art. 1183), the condition that is imposed becomes an integral part of the causa of
the obligation.

‣ The elimination of that condition for being impossible or illegal results in a failure of cause, which is an essential
element of an obligation.

‣ Thus, for impossible or illegal conditions:

1. In testamentary dispositions or donations: considered NOT written (condition is void)


2. In onerous obligations: obligation (it pertains to) is VOID

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CHAPTER 2: TESTAMENTARY SUCCESSION
SECTION 4: TESTAMENTARY DISPOSITIONS WITH A CONDITION OR TERM

CONDITIONS WHICH PROHIBIT MARRIAGE

Article 874. An absolute condition not to contract a first or subsequent marriage shall be considered as not written unless
such condition has been imposed on the widow or widower by the deceased spouse, or by the latter's ascendants or
descendants.
Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised or bequeathed to any
person for the time during which he or she should remain unmarried or in widowhood. (793a)

APPLICABILITY OF ART. 874


‣ Ar. 874 only pertains to ABSOLUTE conditions prohibiting marriage.
‣ It pertains to a negative condition

‣ It does NOT cover:

1. Restrictive Conditions on Marriage


‣ If the condition pertains to a prohibition to marry a particular person or a class, then Art. 874 does not apply.

‣ Such as a condition prohibiting the heir to marry persons other than those of chinese descent.

2. Conditions to Contract Marriage


‣ This article does NOT apply to the imposition of a condition to marry (either with reference to a particular person or
not).

RULES ON CONDITIONS PROHIBITING MARRIAGE


1. IF A CONDITION PROHIBITS A FIRST MARRIAGE, IT IS ALWAYS CONSIDERED AS NOT IMPOSED
‣ Example: “I give 1/3 of my estate to A if she does not get married."

‣ The condition is considered as not imposed, thus the disposition is absolute and unconditional
2. IF A CONDITION PROHIBITS A SUBSEQUENT MARRIAGE, ITS EFFECTIVITY DEPENDS ON WHO THE TESTATOR IS
a. Imposed by the deceased spouse, or by his/her ascendants or descendants: VALID

‣ Note that only the following may validly impose it:

i. Deceased spouse

ii. Deceased spouse’s ascendants or descendants (such as his/her father or son)

‣ Example: “I give my entire estate to my husband on the condition that if I predecease him, he will not get
married.”

b. Imposed by anyone else: considered NOT written

‣ Example: “I give 1/3 of my estate to A on the condition that if he should be widowed, he will not get married.”

3. THE TESTATOR STILL HAS A MEANS OF TERMINATING THE TESTAMENTARY BENEFACTION SHOULD THE HEIR CONTRACT
MARRIAGE (EVEN A FIRST ONE)

‣ See second paragraph of Art. 874: “Nevertheless, the right of usufruct, or an allowance or some personal prestation
may be devised or bequeathed to any person for the time during which he or she should remain unmarried or in
widowhood.”

‣ The wording of the disposition will be crucial; it should not be so worded as to constitute a prohibition forbidden
in the first paragraph.

‣ The pensions which has been received prior to the heir’s marriage is NOT forfeited.

‣ BALANE: The purpose of this is to help the heir out while he/she is unmarried.
‣ Example: "I give A a pension of P10,000 during the entire time she is single.”

LEGACY-HUNTING DISPOSITIONS

Article 875. Any disposition made upon the condition that the heir shall make some provision in his will in favor of the
testator or of any other person shall be void. (794a)

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CHAPTER 2: TESTAMENTARY SUCCESSION
SECTION 4: TESTAMENTARY DISPOSITIONS WITH A CONDITION OR TERM

PROHIBITION ON LEGACY-HUNTING DISPOSITIONS


‣ A legacy hunting disposition is that made upon the condition that the heir shall make some provision in his will in
favor of the testator or of any other person.
‣ “I institute you in my will provided that you also institute me (or other persons) in yours.”

‣ Legacy-hunting dispositions, whether to heirs or legatees, are VOID


‣ Note that it is not merely the condition that is declared void but the testamentary disposition itself which contains the
condition.

‣ Reasons for the Prohibition

1. It converts testamentary grants into contractual transactions because the consideration becomes onerous rather
than gratuitous.

2. It deprives or restricts the heir of testamentary freedom because there is a pressure to make a will.

3. It gives the testator the power to dispose mortis causa not only of his property but also of his heir’s

POTESTATIVE, CASUAL AND MIXED CONDITIONS

Article 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon as he learns of the
testator's death.
This rule shall not apply when the condition, already complied with, cannot be fulfilled again. (795a)

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

Article 883. If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the
condition shall be deemed to have been complied with. (798a)

Article 879. If the potestative condition imposed upon the heir is negative, or consists in not doing or not giving
something, he shall comply by giving a security that he will not do or give that which has been prohibited by the testator,
and that in case of contravention he will return whatever he may have received, together with its fruits and interests.
(800a)

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

APPLICABILITY OF ART. 876, 877, 883 PAR. 2, 879


‣ These articles govern potestative, casual, and mixed conditions.

1. Potestative condition
‣ One that depends solely on the will of the heir/devisee/legatee

2. Casual condition
‣ One that depends on the will of a third person or on chance

3. Mixed condition
‣ One that depends partly on the will of the heir/devisee/legatee and partly either on the will of a third person or
chance.

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CHAPTER 2: TESTAMENTARY SUCCESSION
SECTION 4: TESTAMENTARY DISPOSITIONS WITH A CONDITION OR TERM
RULES ON POTESTATIVE, CASUAL, MIXED CONDITIONS:
1. POTESTATIVE CONDITIONS (ART. 876, 883 PAR. 2, 879)
a. Positive Potestative Condition (Art. 876)
‣ Generally, it must be fulfilled as soon as the heir learns of the testator’s death

‣ But remember the rule of constructive compliance

‣ If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the
condition shall be deemed to have been complied with (Art. 883)

‣ EXCEPTIONS:
i. The condition was already complied with at the time the heir learns of the testator’s death, and

ii. The condition is of such a nature that it cannot be fulfilled again.

c. Negative Potestative Condition (Art. 879)


‣ This is when the potestative condition imposed upon the heir consists in not doing or not giving something,

‣ Heir must give security to guarantee (caucion Muciana) the return of the value of property, fruits, and interests, in
case of contravention.

‣ Note that this is the first of three instances where a caucion Muciana is required. The other two: Art. 885, par. 2
and 882

2. CASUAL OR MIXED CONDITIONS (ART. 877)


‣ Generally, it may be fulfilled at any time (before or after testator’s death), unless testator provides otherwise.

‣ But note the following qualifications if already fulfilled at the time of execution of will:

a. If testator unaware of fact of fulfillment


‣ Deemed fulfilled

b. if testator aware thereof


i. If can no longer be fulfilled again
‣ Deemed fulfilled

ii. If it can be fulfilled again

‣ Must be fulfilled again.

‣ Note also the following rules on constructive compliance

a. If casual
‣ Not applicable

b. If mixed
i. If dependent partly on chance
‣ Not applicable

ii. If dependent partly on the will of a third party:


(a) If third party is an interested party
‣ Applicable

(b) If third party is not an interested party


‣ Not applicable

‣ NOTE: Articles 1179-1192, on conditional obligations apply suppletorily to conditional institutions (Art. 884)

WHEN THE PROPERTY IS TO BE PLACED UNDER ADMINISTRATION

Article 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed under administration
until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled, or until the arrival of the term.
The same shall be done if the heir does not give the security required in the preceding article. (801a)

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CHAPTER 2: TESTAMENTARY SUCCESSION
SECTION 4: TESTAMENTARY DISPOSITIONS WITH A CONDITION OR TERM

Article 881. The appointment of the administrator of the estate mentioned in the preceding article, as well as the manner
of the administration and the rights and obligations of the administrator shall be governed by the Rules of Court. (804a)

INSTANCES WHEN THE PROPERTY SHOULD BE PLACED UNDER ADMINISTRATION


1. PENDING FULFILMENT/NON-FULFILMENT OF THE SUSPENSIVE CONDITION
‣ Between the time of the testator’s death and the time of the fulfillment of the suspensive condition or of the certainty
of its non-occurrence, the property should be placed under administration.

a. If condition happens
‣ The property will be turned over to the instituted heir.

b. If it becomes certain that condition will not happen


‣ The property will be turned over to a secondary heir (if there is one) or to the intestate heirs, as the case may be.

2. FAILURE TO GIVE THE SECURITY REQUIRED (CAUCION MUCIANA)


‣ The property shall be in the executor’s or administrator’s custody until the heir furnishes the caution Muciana.

NOT APPLICABLE TO INSTITUTIONS WITH A TERM


‣ BALANE: Despite the wording of this article, it should not be applied to institutions with a term, which are governed by
Article 885, par. 2. Otherwise, there will be an irreconcilable conflict with that article, which mandates that before the
arrival of the term, the property should be given to the legal heirs. There is now an inconsistency where none existed
before (in the Spanish Code), thanks to the “unknown genius” referred to by J.B.L. Reyes. The reference of this article to
institutions with a term should be disregarded.

DISPOSITIONS WITH A TERM

WHEN HEIR’S RIGHT VESTS IN DISPOSITIONS WITH A TERM

Article 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights and
transmitting them to his heirs even before the arrival of the term. (799a)

‣ In dispositions with a term, the heir’s right vests upon the testator’s death, conformably to Article 777.

‣ Therefore, should the heir die before the arrival of the (suspensive) term, he merely transmits his right to his own heirs who
can demand the property when the term arrives.

‣ The rule in this article is similar to Article 866, in fideicommissary substitutions.

‣ In conditional institutions, what is the rule if the instituted heir dies before the happening of the condition?

‣ No right is transmitted to his heirs, even if he survives the testator

‣ In conditional institutions, the heir should be living and qualified to succeed both at the time of the testator’s death
and at the time of the happening of the condition.

SUSPENSIVE OR RESOLUTORY TERMS

Article 885. The designation of the day or time when the effects of the institution of an heir shall commence or cease shall
be valid.
In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration.
But in the first case he shall not enter into possession of the property until after having given sufficient security, with the
intervention of the instituted heir. (805)

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CHAPTER 2: TESTAMENTARY SUCCESSION
SECTION 4: TESTAMENTARY DISPOSITIONS WITH A CONDITION OR TERM
NOTE: The preposition “from” should be inserted between “or” and “its” in the second paragraph

KINDS OF DISPOSITIONS WITH A TERM; RULES


1. Suspensive Term
‣ Before the arrival of the term, the property should be delivered to the intestate heirs.

‣ A cauccion Muciana has to be posted by them. (This is the second instance where a caucidn Muciana has to be
posted.)

2. Resolutory Term
‣ Before the arrival of the term, the property should be delivered to the instituted heir.

‣ No cauccion Muciana is required.

MODAL DISPOSITIONS

Article 882. The statement of the object of the institution, or the application of the property left by the testator, or the
charge imposed by him, shall not be considered as a condition unless it appears that such was his intention.
That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security
for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits
and interests, if he or they should disregard this obligation. (797a)

WHAT ARE MODAL DISPOSITIONS?


‣ BALANE: The first paragraph of this article defines a mode obliquely.
‣ A mode is an obligation imposed upon the heir, without suspending, as a condition does, the effectivity of the institution.

‣ A mode must be clearly imposed as an obligation in order to be considered as one.

‣ Mere preferences or wishes expressed by the testator are not modes.

‣ A mode functions similarly to a resolutory condition.

‣ In fact, modes could very well have been absorbed in the concept of resolutory conditions.

‣ Note that a cauccion Muciana should be posted by the Instituted heir (the third instance of Caucidn Muciana).

‣ RABADILLA VS. COURT OF APPEALS 334 SCRA 522 (2000)


‣ The institution of an heir in the manner pre- scribed in Article 882 is what is known in the law of succession as
institution sub modo or a modal institution.

‣ In a modal institution, the testator states:


1. The object of the institution,
2. The purpose or application of the property left by the testator, or
3. The charge imposed by the testator upon the heir.
‣ A “mode” imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the
succession. On the other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in
order for the heir to be entitled to succeed the testator. The condition suspends but does not obligate; and the mode
obligates but does not suspend. To some extent, it is similar to a resolutory condition.

‣ In this case, the testatrix did not make the devisee’s inheritance and the effectivity of his institution as a devisee,
dependent on the performance of the said obligation. It is clear, though, that should the obligation be not complied
with, the property shall be turned over to the testatrix’s near descendants. The manner of institution of the devisee
under subject Codicil is evidently modal in nature because it imposes a charge upon the instituted heir without,
however, affecting the efficacy of such institution.

‣ Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should
not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator.
In case of doubt, the institution should be considered as modal and not conditional.

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CHAPTER 2: TESTAMENTARY SUCCESSION
SECTION 5: LEGITIME
WHEN CAUCCION MUNCIANA IS REQUIRED
1. Negative potestative resolutory condition (by heir)

2. Suspensive term (by intestate heirs)

3. Modal dispositions (by heir)

WHEN AN INSTITUTION CANNOT TAKE EFFECT IN THE EXACT MANNER STATED BY THE
TESTATOR

Article 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the
exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his
wishes.

‣ The intention of the testator should always be the guiding norm in determining the sufficiency of the analogous
performance.

SECTION 5: LEGITIME

DEFINITION OF LEGITIME

Article 886. Legitime is that part of the testator's property which he cannot dispose of because the law has reserved it for
certain heirs who are, therefore, called compulsory heirs. (806)

SYSTEM OF LEGITIMES
‣ Our successional system, closely patterned after that of the Spanish Code, reserves a portion of the net estate of the
decedent in favor of certain heirs, or groups of heirs, or combination of heirs.

‣ Such portion reserved is called the legitime


‣ The heirs for whom the law reserves a portion are called compulsory heirs
‣ The portion that is left available for testamentary dispositions after the legitimes are covered is called the free or
disposable portion

‣ Three kinds of Systems:

1. Partial Reservation: a certain portion set aside for the compulsory heirs

‣ Followed by the countries in the civil law tradition

‣ But there are a lot of variations depending on which country. The Philippine system is based on the Spanish
system

2. Absolute Reservation: everything is set aside

3. Absolute Freedom: no reservation

‣ Based on common law tradition, such as in the US (except in Louisiana) and UK

‣ But there may be reservation for support of minor children (but this is not really succession)

‣ BALANE: In the Philippines, the partial reservation system is observed

NATURE OF LEGITIMES
‣ LEGITIME IS THAT PART OF THE TESTATOR'S PROPERTY WHICH HE CANNOT DISPOSE OF GRATUITOUSLY.
‣ The legitimes are set aside by mandate of the law. Thus, the testator is required to set aside or reserve them.

‣ The legitime does NOT pertain to any specific property its pertains to a “value” or “fraction” of the testator’s estate

‣ Because the testator is compelled to set aside the legitimes, the heirs in whose favor the legitimes are set aside are
called compulsory heirs.

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CHAPTER 2: TESTAMENTARY SUCCESSION
SECTION 5: LEGITIME
‣ The compulsion is not on the part of the heirs (who are free to accept or reject the inheritance), but on the part of
the testator, as he is compelled to reserve the legitimes.

‣ BALANE: The term is wrong as it gives the impression that the heirs are compelled. It was originally called “forced
heirs”, but this term is also erroneous also because it gives the impression that the heirs are forced to succeed.
Both terms are wrong, why did you change a wrong term with another wrong term? Hmmph!
‣ Remember the three kinds of succession, compulsory, testamentary and intestate succession.

‣ Compulsory succession pertains to succession of the legitime. It takes precedence and prevails over the other kinds
of succession.

COVERAGE OF THE LEGITIME


‣ THE TESTATOR IS PROHIBITED FROM DISPOSING THE LEGITIME BY GRATUITOUS TITLE, WHICH INCLUDES:
1. Donations inter vivos
2. Testamentary dispositions mortis causa

‣ Dispositions by onerous title are NOT prohibited or covered because, in theory, nothing is lost from the estate in an
onerous disposition, since there is merely an exchange or substitution of values.

‣ When the disposition is for valuable consideration, there is no diminution of the estate but merely a substitution of
values, that is, the property sold is replaced by the equivalent monetary consideration

‣ But this is on the assumption that the sale is genuine and not simulated.

‣ Presumption that the sale is genuine, the burden is on the opponents of the sale to prove that it was relatively simulated
and that it was really a donation. (Calalang-Parulan vs Calalang-Garcia 2014)

COMPULSORY HEIRS

Article 887. The following are compulsory heirs:


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

FAMILY CODE
Article 176. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for
this modification, all other provisions in the Civil Code governing successional rights shall remain in force. (287a)

This list is EXCLUSIVE, but numbers 4 and 5 has been repealed by Art. 176 of the Family Code.
‣ TUMBOKON VS LEGASPI, G.R. NO. 153736, AUGUST 12, 2010
‣ A decedent’s compulsory heirs in whose favor the law reserves a part of the decedent’s estate are exclusively the
persons enumerated in Article 887,

THE COMPULSORY HEIRS


‣ There are only 5 main groups of compulsory heirs:
1. Legitimate Children and Descendants

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2. Legitimate Parents and Ascendants

3. Surviving Spouse

4. Illegitimate Children and Descendants

5. Illegitimate Parents (Ascendants NOT included)

CLASSIFICATION OF COMPULSORY HEIRS


1. Primary Compulsory Heirs

2. Secondary Compulsory Heirs

3. Concurring Compulsory Heirs

PRIMARY SECONDARY CONCURRING

They preferred over, and They receive legitimes only in They succeed as compulsory heirs together with the primary or
exclude, the secondary default of the primary secondary. They live in harmony, with primary and secondary
compulsory heirs and with each other.

One exception is that illegitimate children/descendants exclude


illegitimate parents (this is the only instance where a concurring
heir excludes another heir)

Legitimate Children and/or a. Legitimate Parents and/or a. Surviving Spouse

Descendants Ascendants

b. Illegitimate Children and/or Descendants


b. Illegitimate Parents

1. LEGITIMATE CHILDREN
‣ The following are considered “legitimate” children (Articles 54, 164, 179 of the Family Code)

a. Children conceived OR born during the marriage of the parents are legitimate.

b. Children conceived as a result of artificial insemination

c. Adopted Children (in relation to their adopter, (Secs. 17 & 18, R.A. 8552 [Domestic Adoption Act of 1998])

d. Children conceived or born before the judgment of annulment

e. Children conceived or born before the judgment of absolute nullity of the marriage under Article 36 of the Family
Code (Psychological Incapacity)

f. Children conceived or born of the subsequent marriage under Article 53 of the Family Code (in relation to Art. 52)

‣ The law does not specify how the legitimate children should share in the legitime. There is universal agreement,
however, that they will share equally, regardless of age, sex, or marriage of origin.

2. LEGITIMATE DESCENDANTS
‣ Such as the grandchild or great-grandchild of the decedent

‣ The rule is that the nearer exclude the more remote


‣ Thus, children, if all qualified, will exclude grandchildren, and so on.

‣ BUT, the qualification to this rule is representation (succession per stripes) for legitimate descendants, when
proper.

‣ Note also that only “legitimate” descendants can represent legitimate children.

‣ The rule is different in the case of illegitimate children, who can be represented by both legitimate and
illegitimate descendants.

3. LEGITIMATE PARENTS
‣ The rule for legitimate parents, is that, they are only excluded (from being compulsory heirs), by “legitimate” children/
descendants.

‣ The rule is different for illegitimate parents who are excluded by both legitimate and illegitimate children/
descendants

‣ Note that the adopter has, in relation to the adopted, the same successional right as legitimate parents.

‣ Under present law (Sec. 18, R.A. 8552), the adopter displaces the biological parents in the successional scheme
relative to the estate of the adopted.

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‣ Thus, in the case of adopted children, their adopted parent is their compulsory heir, as their legitimate parent, NOT
their biological parent.
‣ BALANE: But this is still an open question which is subject to debate.
‣ BARTOLOME VS SSS, G.R. NO. 192531, NOVEMBER 12, 2014
‣ The biological parents retain their rights of succession to the estate of their child who was the subject of
adoption. While the benefits arising from the death of an SSS covered employee do not form part of the estate
of the adopted child, the pertinent provision (Art 167 of labor code) on legal or intestate succession at
least reveals the policy on the rights of the biological parents and those by adoption vis-à-vis the right
to receive benefits from the adopted.

‣ In the same way that certain rights still attach by virtue of the blood relation, so too should certain
obligations, which, We rule, include the exercise of parental authority, in the event of the untimely
passing of their minor offspring’s adoptive parent.
‣ We cannot leave undetermined the fate of a minor child whose second chance at a better life under the care of
the adoptive parents was snatched from him by death’s cruel grasp. Otherwise, the adopted child’s quality of
life might have been better off not being adopted at all if he would only find himself orphaned in the end. Thus,
We hold that the adopter’s death at the time of the adopted’s minority resulted in the restoration of the
biological parent’s parental authority over the adopted child.

‣ BUT — This case was decided under the rules prior to the Domestic Adoption Act. Now such law governs and
it provides that adoption terminates the relationship of the biological parents and the adopted. No rights remain.
4. LEGITIMATE ASCENDANTS
‣ Such as grandparents or great-grandparents

‣ The rule that they are excluded by “legitimate” children/descendants also applies.

‣ Again, the rule that the nearer exclude the more remote applies

‣ They are only considered compulsory heirs in default of parents.

‣ Note that this rule is absolute in the ascending line, it is NOT qualified by representation (unlike in the case of
legitimate descendants)

5. SURVIVING SPOUSE
‣ The person to whom the decedent is legally married.

‣ The surviving spouse referred to here is the spouse of the decedent, NOT the spouse of a child who has predeceased
the decedent.

‣ ROSALES VS. ROSALES 148 SCRA 69 (1987)


‣ Issue here is, does a widow (surviving spouse of a predeceased legitmate child of the decedent), an intestate
heir of her mother-in-law?

‣ Court that she is NOT a compulsory heir, neither in her own right, nor by right of representation. There is
no provision in the Civil Code which states that a widow (surviving spouse) is an intestate heir of her
mother-in-law.
‣ Intestate or legal heirs are classified into two (2) groups, namely, those who:

1. Inherit by their right, and

2. Inherit by the right of representation

‣ Re- stated, an intestate heir can only inherit either by his own right, as in the order of intestate succession
provided for in the Civil Case, or by the right of representation provided for in Article 981

‣ The entire Code is devoid of any provision which entitles her to inherit from her mother-in-law either by her
right or by the right of representation.

‣ The provisions of the Code which relate to the order of intestate succession (Articles 978 to 1014) enumerate
with meticulous exactitude the intestate heirs of a decedent, with the State as the final intestate heir. The
conspicuous absence of a provision which makes a daughter-in-law an intestate heir of the deceased all the
more confirms our observation. If the legislature intended to make the surviving spouse an intestate heir of
the parent-in-law, it would have so provided in the Code.

‣ Rules pertaining to the Right of the Surviving Spouse to Succeed


a. There must be a VALID marriage or at least, a voidable marriage
‣ The marriage must NOT have been judicially declared void ab initio or annulled by final decree at the time of
the death of the decedent

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‣ If the marriage is void ab initio or there is valid ground for annulment, but there is NO judicial declaration to this
effect, there being no action instituted yet or the action was pending, when the decedent died, can the heirs
later attack the validity of the marriage (either by direct or indirect attack), or continue the action pending?

‣ In annulment, the heirs cannot attack the marriage since collateral attack is not allowed in voidable
marriages.

‣ In nullity, direct attack is allowed only in the lifetime of the spouses, collateral attack is allowed though

‣ Check this, this is only what I remembered in Persons nung 1st year
‣ CARINO VS. CARINO (351 SCRA 127 [2001])
‣ “ Under article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.
Meaning, where the absolute nullity of a previous marriage is sought to be invoked for purposes of
contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free from
legal infirmity, is a final judgment declaring the previous marriage void.

‣ However, for purposes other than remarriage, NO judicial action is necessary to declare a marriage an
absolute nullity (judicial declaration NOT required). For other purposes, such as but not limited to the
determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property
regime, or a criminal case for that matter, the court may pass upon the validity of marriage even after the
death of the parties thereto, and even in a suit not directly instituted to question the validity of said marriage
(Indirect Attack), so long as it is essential to the determination of the case.

b. A final decree of legal separation should NOT have been issued


‣ Effect of decree of legal separation: Offending spouse is disqualified from inheriting from the innocent spouse

‣ BALANE: This is a punitive effect of a decree of legal separation, against the offending spouse.
‣ Death of either spouse during the pendency of a petition for legal separation— dismissal of the case, the
offending spouse will inherit in this case.

‣ BALANE: It doesn’t matter who dies before the decree of legal separation is issued (during the pendency), the
spouses are capacitated to succeed each other in this case, as the legal separation proceedings cannot
continue (under the family code). The action cannot continue just to adjudicate the incidental effects of legal
separation
‣ LAPUZ VS. EUFEMIO 43 SCRA 177 (1972)
‣ The wife (Carmen Lapuz Sy) filed a petition for legal separation against the husband (Eufemio Eufemio) based
on the abandonment by the latter, and that the fact that he was cohabiting with another chinese woman.
Before, the trial could be completed, the wife died due to a vehicular accident. Thus, the husband moved for
the dismissal of the legal separation proceedings, this was granted by the lower court.

‣ Issue was, does the death of the plaintiff before final decree, in an action for legal separation, abate the
action? If it does, will abatement also apply if the action involves property rights?

‣ Court held that the death of EITHER spouse abates the action because an action for legal separation
is purely personal.
‣ An action for legal separation which involves nothing more than the bed-and-board separation of the
spouses (there being no absolute divorce in this juris- diction) is purely personal.

‣ The Civil Code recognizes this in its Article 100, by allowing only the innocent spouse (and no one else) to
claim legal separation; and in its Article 108, by providing that the spouses can, by their reconciliation, stop
or abate the proceedings and even rescind a decree of legal separation already rendered.

‣ Being personal in character, it follows that the death of one party to the action causes the death of the
action itself

‣ A review of the resulting changes in property relations between spouses shows that they are solely the
effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it occurs
prior to the decree.

‣ Art. 106. “The decree of legal separation shall have the following effects: (4) The offending spouse shall be
disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor
of the offending spouse made in the will of the innocent one shall be revoked by operation of law.”

‣ From this article it is apparent that the disqualification of the offending spouse to inherit by intestacy from
the innocent spouse as well as the revocation of testamentary provisions in favor of the offending spouse
made by the innocent one, are all rights and disabilities that, by the very terms of the Civil Code article, are

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vested exclusively in the persons of the spouses; and by their nature and intent, such claims and
disabilities are difficult to conceive as assignable or transmissible.

‣ A further reason why an action for legal separation is abated by the death of the plaintiff, even if property
rights are Involved, is that these rights are mere effects of a decree of separation, their source being the
decree itself; without the decree such rights do not come into existence, so that before the finality of a
decree, these claims are merely rights in expectation. If death supervenes during the pendency of the
action, no decree can be forthcoming, death producing a more radical and definitive separation; and the
expected consequential rights and claims would necessarily remain unborn.

‣ Note that this case pertained to legal separation under the Civil Code, but the rule is the same under the
Family Code
‣ But note that If after the final decree of legal separation there was a reconciliation between the spouses, the
reciprocal right to succeed is restored (because reconciliation sets aside the final decree) (Article 66, par. 2,
Family Code).

c. Spouse in a terminated subsequent marriage must NOT be in bad faith in contracting such subsequent
marriage
‣ This pertains to a case of subsequent marriage contracted by a party whose spouse has been absent for the
specified period and then the subsequent termination of such subsequent marriage by reappearance of prior
the spouse (Articles 41-43 of the Family Code)

‣ Note that the reappearance of the prior spouse terminates the second marriage.

‣ One of the effects of such termination is that the spouse who contracted the subsequent marriage in bad faith
(had knowledge that the absent spouse was still living) shall be disqualified to inherit from the innocent spouse
by testate and intestate succession

‣ The clear implication of this article is that (1) if both consorts in the second marriage were in good faith, they
continue to be heirs of each other, and (2) if only one of said consorts acted in bad faith, the innocent one will
continue to be an heir of the other.

d. Mere estrangement is not a ground for the disqualification of the surviving spouse as heir.

6. ILLEGITIMATE CHILDREN
‣ The Family Code has abolished the distinction between natural and spurious children and gives all of them—
indiscriminately called illegitimate children simply—equal legitimary portions (Article 176, Family Code).

‣ However, pursuant to Article 777, if death occurred before the effectivity of the Family Code on 3 August 1988, the
old distinctions will apply and the spurious child gets only 4/5 the share of the natural (Article 895).

‣ Children conceived AND born outside a valid marriage are illegitimate, unless otherwise provided (Art. 165, Family
Code)
‣ EXCEPT, the following are legitimate:

a. Those legitimated

b. Born into a voidable marriage, before the final decree of annulment

c. Born into a void marriage under Art. 36 or Art. 52/53, before the final judicial declaration of nullity

d. Adopted children

7. ILLEGITIMATE DESCENDANTS
‣ The same rule applies here as in the legitimate descending line: the nearer exclude the more remote, without prejudice
to representation when proper.

‣ Note that the illegitimate child can be represented by both legitimate and illegitimate descendants, as distinguished
from the legitimate child, who can be represented only by legitimate descendants.

8. ILLEGITIMATE PARENTS
‣ Unlike the legitimate ascending line, which includes ascendants of whatever degree, the illegitimate ascending line
includes only parents; it does not go beyond the parents.

‣ Note that the illegitimate parents are secondary heirs of a lower category than legitimate parents, because the
illegitimate parents are excluded by legitimate and illegitimate children (Article 903) whereas legitimate parents are
excluded only by legitimate children/descendants.

LEGITIMARY PORTIONS AND COMBINATIONS

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VARIATIONS IN THE LEGITIMARY PORTIONS
‣ The legitimary system of the Philippine Code rests on a double foundation: exclusion and concurrence.

‣ Consequently, the variations of the portions assigned as legitime can be bewildering, depending as they do on the given
combination.

‣ But generally, there is a basic quota of one-half (1/2) that is given to one heir or one group of heirs.
‣ EXCEPTION:
1. Surviving spouse and illegitimate children (Art. 894)

2. Surviving spouse in a marriage in articulo mortis, with the conditions specified in that article (Art. 900, par. 2)

3. Surviving spouse and illegitimate parents (Art. 903)

SUMMARY OF THE LEGITIMARY COMBINATIONS

HEIRS LEGITIMARY PORTION BASIS

1. Legitimate Children Art. 888

2. Surviving Spouse Art. 900


1/2 of the estate

3. Legitimate Parents *But, 1/3 only in the case of a surviving spouse and the marriage, being in Art. 889
articulo mortis falling under Art. 900, par. 2
4. Illegitimate Children Art. 901

5. Illegitimate Parents Art. 903

6. One Legitimate Child a. Legitimate Child: 1/2 of the estate Art. 892, par. 1
and Surviving Spouse
b. Surviving Spouse: 1/4 of the estate

7. Legitimate Children a. Legitimate Children: 1/2 of the estate Art. 892, par. 2
and Surviving Spouse
b. Surviving Spouse: Share equal to that of one child

8. Legitimate Children a. Legitimate Children: 1/2 of the estate Art. 176, Family Code
and Illegitimate Children
b. Illegitimate Children: Each will get 1/2 of share of one legitimate child

9. Legitimate Child, a. Legitimate Child: 1/2 of the estate Art. 895


Illegitimate Children, and
Surviving spouse b. Illegitimate Children: Each will get 1/2 of share of one legitimate child

c. Surviving Spouse: 1/4 of the estate

10. Legitimate Children, a. Legitimate Children: 1/2 of the estate Art. 895
Illegitimate Children, and
Surviving Spouse b. Illegitimate Children: Each will get 1/2 of share of one legitimate child

c. Surviving Spouse: Share equal to that of one legitimate child

11. Legitimate Parents a. Legitimate Parents: 1/2 of the estate Art. 896
and Illegitimate Children
b. Illegitimate Children: 1/4 of the estate

12. Legitimate Parents a. Legitimate Parents: 1/2 of the estate Art. 893
and Surviving Spouse
b. Surviving Spouse: 1/4 of the estate

13. Legitimate Parents, a. Legitimate Parents: 1/2 of the estate Art. 899
Illegitimate Children, and
Surviving Spouse b. Illegitimate Children: 1/4 of the estate

c. Surviving Spouse: 1/8 of the estate

14. Surviving Spouse a. Surviving Spouse: 1/3 of the estate Art. 894
and Illegitimate Children
b. Illegitimate Children: 1/3 of the estate

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HEIRS LEGITIMARY PORTION BASIS

15. Surviving Spouse a. Surviving Spouse: 1/4 of the estate Art. 903
and Illegitimate Parents
b. Illegitimate Parents: 1/4 of the estate

LEGITIME OF LEGITIMATE CHILDREN AND DESCENDANTS

Article 888. The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father
and of the mother.
The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving
spouse as hereinafter provided. (808a)

RULES FOR THE LEGITIME OF THE LEGITIMATE CHILDREN/DESCENDANTS


1. THE LEGITIME OF LEGITIMATE CHILDREN AND DESCENDANTS COLLECTIVELY IS 1/2 OF THE HEREDITARY ESTATE
‣ This is always the case, regardless if there is a surviving spouse, or there are illegitimate children

2. EQUAL SHARING
‣ The legitimate children share the one-half in equal parts, regardless of age, sex, or marriage of origin.

‣ BALANE: The provision should have been explicit about this, rather than leaving it to implication and assumption. The
counterpart provision in intestacy is quite explicit on this. Before, only men inherit, particularly the eldest child, women
cannot inherit. This is the principle of “primogeniture” as prevalent in medieval europe where the firstborn male inherits
the family estate.
3. THE NEARER EXCLUDE THE MORE REMOTE, QUALIFIED BY REPRESENTATION, WHEN PROPER
‣ The general rule is that the nearer exclude the more remote.

‣ Hence, grandchildren cannot inherit, since the children will bar them, unless all the children renounce, in which case
the grandchildren become the nearest in degree.

‣ The rule goes on down the line; great-grandchildren cannot inherit unless all the children and grand- children
renounce.

‣ The only qualification to the rule that the nearer exclude the more remote in the descending line is representation
when proper (Art. 970-977)

‣ BALANE: Remember that there is no representation in renouncement, the grandchildren cannot inherit when their
parents (the children of the decedent), merely renounce, unless ALL the children renounce, in which case the
grandchildren inherit in their own right, not by representation
4. THERE IS NO LIMIT TO THE NUMBER OF DEGREES IN THE DESCENDING LINE THAT MAY BE CALLED TO SUCCEED, WHETHER IN
THEIR OWN RIGHT OR BY REPRESENTATION.

LEGITIME OF LEGITIMATE PARENTS AND ASCENDANTS

Article 889. The legitime of legitimate parents or ascendants consists of one-half of the hereditary estates of their children
and descendants.
The children or descendants may freely dispose of the other half, subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided. (809a)

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

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RULES FOR THE LEGITIME OF THE LEGITIMATE PARENTS/ASCENDANTS


1. THE LEGITIME OF LEGITIMATE PARENTS AND ASCENDANTS CONSISTS IS 1/2 OF THE HEREDITARY ESTATE
‣ This is always the case, regardless if there is a surviving spouse, or there are illegitimate children

2. THE LEGITIMATE ASCENDING LINE SUCCEEDS ONLY IN DEFAULT OF THE LEGITIMATE DESCENDING LINE
‣ The Legitimate parents/ascendants are secondary compulsory heirs, they will succeed in default of legitimate
children/descendants.

‣ Note that can only be disqualified by legitimate children/descendants. Even if the decedent has a surviving spouse
and/or illegitimate children/descendants, they are still compulsory heirs.

3. THE NEARER EXCLUDE THE MORE REMOTE, WITH NO QUALIFICATION


‣ This rule in the ascending line admits no qualification, since there is no representation in the ascending line

4. DIVISION BY LINE AND EQUAL DIVISION WITHIN THE LINE.


‣ This rule will apply if there are more than one ascendant in the nearest degree.

‣ The legitime shall then be divided in equal parts between the paternal line and the maternal line.

‣ After the portion corresponding to the line has been assigned, there will be equal apportionment between or among
the recipients within the line, should there be more than one.

‣ Example: “Should X (the decedent) die without legitimate descendants and be survived by three grandparents as his
nearest ascendants—A and B (paternal grandparents) and C (maternal grandmother-the legitime of 1/2 will be divided
equally between the paternal and the maternal line (Rule B, supra). Since there are two heirs in the paternal line, the
paternal line portion will be shared equally by the two; and since there is only one in the maternal line, she gets the
entire allotment for the maternal line.

‣ Result: A and B get 1/8 each of the estate; C gets 1/4 of the estate.

LEGITIME OF LEGITIMATE CHILDREN/DESCENDANTS AND THE SURVIVING SPOUSE

Article 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to
one- fourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased
who had given cause for the same.
If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the
legitime of each of the legitimate children or descendants.
In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the
testator. (834a)

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

RULES ON THE LEGITIME OF LEGITIMATE CHILDREN/DESCENDANTS AND THE SURVIVING SPOUSE


1. THE LEGITIME OF LEGITIMATE CHILDREN OR DESCENDANTS COLLECTIVELY IS 1/2 OF THE HEREDITARY ESTATE
2. SHARE OF THE SURVIVING SPOUSE DEPENDS ON THE NUMBER OF LEGITIMATE CHILDREN OR DESCENDANTS
a. Only one legitimate child or descendant: Spouse gets 1/4 of the hereditary estate

b. Two or more legitimate children or descendants: Spouse gets a portion equal to the legitime of “each” of the
legitimate children or descendants

‣ As long as at least one of several children inherits in his own right, the determination of the share of the surviving
spouse presents no problem. It will always be the equivalent of one child’s share.

‣ BALANE: But, supposing all the children predecease (or are disinherited or unworthy to succeed), since all the
grandchildren would then inherit per stirpes (by representation), and therefore in different amounts, the practical
solution will still be to give the spouse the share that each child would have gotten if qualified. Supposing, however,
all the children renounce, the grandchildren would then inherit per capita, and therefore equally. Should the

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spouse’s share still be computed on the basis of the children’s share had they accepted? If so, when will the words
“or descendants” in the second paragraph of this article ever be operative?
‣ Imagine that this can be used by the legitimate descendants to cheat the surviving spouse into receiving less
legitime, for example the decedent has 2 children but 16 grandchildren, the share of the surviving spouse is 1/4
(portion equivalent of one legitimate child), but if the children predecease, or are disinherited or renounce, then
the share of the surviving spouse is merely 1/32 (the share of each grandchild). The children, if they are alive can
collude to agree to renounce their share in order to deprive the surviving spouse of her supposed legitime.

LEGITIME OF LEGITIMATE PARENTS/ASCENDANTS AND THE SURVIVING SPOUSE

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

‣ Legitimate ascendants/surviving spouse—The sharing is 1/2 for the ascendants collectively and 1 /4 for the surviving
spouse.

‣ Remember that tor the parents or ascendants, the sharing will be in accordance with the rules laid down in Articles
889-890

LEGITIME OF ILLEGITIMATE CHILDREN AND THE SURVIVING SPOUSE

Article 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of the hereditary
estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of
the testator. (n)

RULES ON THE LEGITIME OF ILLEGITIMATE CHILDREN/DESCENDANTS AND THE SURVIVING SPOUSE


1. THE SHARING IS 1/3 FOR THE ILLEGITIMATE CHILDREN OR DESCENDANTS COLLECTIVELY, AND 1/3 FOR THE SURVIVING
SPOUSE
2. SHARING AMONG ILLEGITIMATE CHILDREN DEPENDS IF THE DECEDENT DIED BEFORE OR DURING THE EFFECTIVITY OF THE
FAMILY CODE
‣ If the decedent died during the effectivity of the Family Code—the sharing will be equal, inasmuch as the Family Code
has abolished the old distinction between natural and illegitimate other than natural (spurious) (Articles 163, 165, and
176, Family Code)

‣ If the decedent died before the effectivity of the Family Code, the old distinction must be observed, and the legitime of
a spurious child will only be 4/5 that of a natural child, according to the ratio established in Article 895, par. 2.

‣ This ratio of 5:4 among natural and spurious children should be observed in all cases under the Civil Code where they
concur.

LEGITIME OF LEGITIMATE AND ILLEGITIMATE CHILDREN/DESCENDANTS AND THE SURVIVING


SPOUSE

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

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Article 898. If the widow or widower survives with legitimate children or descendants, and with illegitimate children other
than acknowledged natural, or natural children by legal fiction, the share of the surviving spouse shall be the same as that
provided in the preceding article. (n)

FAMILY CODE
Art. 163. The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate. (n)

Art. 165. Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code. (n)

Art. 176. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this
modification, all other provisions in the Civil Code governing successional rights shall remain in force. (287a)

Art. 895 has been pro tanto amended by Articles 163, 165 and 176 of the Family Code.

RULES ON THE LEGITIME OF LEGITIMATE AND ILLEGITIMATE CHILDREN/DESCENDANTS


1. ONE LEGITIMATE CHILD, ILLEGITIMATE CHILDREN, AND SURVIVING SPOUSE
‣ The sharing is 1/2 for the legitimate child, 1/4 for the surviving spouse, and 1/4 for each illegitimate child. (Art. 892 and
176 of the Family Code)

2. LEGITIMATE CHILDREN, ILLEGITIMATE CHILDREN, AND SURVIVING SPOUSE


‣ The sharing is 1/2 for the legitimate children collectively, a share equal to that of one legitimate child for the surviving
spouse, and 1/2 the share of one legitimate child for each illegitimate child.

3. SHARING OF THE ILLEGITIMATE CHILDREN PRIOR TO FAMILY CODE (IF THE DECEDENT DIED PRIOR TO THE EFFECTIVITY OF
THE FAMILY CODE)

‣ Art. 895 article will govern; consequently, should natural and spurious children concur in the succession, each
spurious child will get 4/5 the share of one natural child, and each natural child gets 1/2 the share of one legitimate
child.

‣ Should there be no natural children but only spurious children, each spurious child will get 2/5 the share of one
legitimate child.

4. PRO-RATA REDUCTION OF SHARES OF THE ILLEGITIMATE CHILDREN, IN CASE THE TOTAL PORTIONS EXCEED THE ENTIRE ESTATE
‣ Depending on the number of legitimate and illegitimate children, the possibility exists that the total legitimes will
exceed the entire estate.

‣ Reductions, therefore, will have to be made in accordance with the following rules:

a. The legitimes of the legitimate children should never be reduced; they are primary and preferred compulsory
heirs.

b. The legitime of the surviving spouse should never be reduced; this article prohibits this.

c. The legitimes of the illegitimate children will be reduced pro rata and without preference among them.

LEGITIME OF LEGITIMATE PARENTS AND ILLEGITIMATE CHILDREN/DESCENDANTS

Article 896. Illegitimate children who may survive with legitimate parents or ascendants of the deceased shall be entitled
to one- fourth of the hereditary estate to be taken from the portion at the free disposal of the testator. (841a)

‣ The sharing is 1/2 for the legitimate parents collectively and 1/4 for the illegitimate children collectively.

LEGITIME OF LEGITIMATE PARENTS, ILLEGITIMATE CHILDREN/DESCENDANTS, AND THE


SURVIVING SPOUSE

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Article 899. When the widow or widower survives with legitimate parents or ascendants and with illegitimate children,
such surviving spouse shall be entitled to one-eighth of the hereditary estate of the deceased which must be taken from
the free portion, and the illegitimate children shall be entitled to one-fourth of the estate which shall be taken also from
the disposable portion. The testator may freely dispose of the remaining one-eighth of the estate. (n)

‣ The sharing is 1/2 for the legitimate parents collectively, 1/4 for the illegitimate children collectively, and 1/8 for the
surviving spouse.

LEGITIME OF THE SURVIVING SPOUSE (AS SOLE COMPULSORY HEIR)

Article 900. If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of
the deceased spouse, and the testator may freely dispose of the other half. (837a)
If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died
within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be one-third
of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter
case, the legitime of the surviving spouse shall be that specified in the preceding paragraph. (n)

RULES ON THE LEGITIME OF THE SURVIVING SPOUSE (AS SOLE COMPULSORY HEIR)
‣ RULE: THE SURVIVING SPOUSE WILL GET 1/2 OF THE ESTATE, IF SHE IS THE SOLE COMPULSORY HEIR
‣ EXCEPTION: IN CASE THE MARRIAGE CONTRACTED IN ARTICULO MORTIS (AT THE POINT OF DEATH) AND THE FOLLOWING
REQUISITES ARE PRESENT, THE SURVIVING SPOUSE WILL ONLY GET 1/3 OF THE ESTATE

1. The marriage was in articulo mortis;

2. The testator died within three months from the time of the marriage;

3. The parties did not cohabit for more than five years; and

4. The spouse who died was the party in articulo mortis at the time of the marriage

‣ BALANE: The decedent must be the one in articulo mortis, it would be absurd if the decedent was the healthy
spouse. This is not provided in Art. 900 but is implied, obviously the law does not regard such marriages with
eager approbation.

LEGITIME OF ILLEGITIMATE CHILDREN/DESCENDANTS (AS SOLE COMPULSORY HEIRS)

Article 901. When the testator dies leaving illegitimate children and no other compulsory heirs, such illegitimate children
shall have a right to one-half of the hereditary estate of the deceased.
The other half shall be at the free disposal of the testator.

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)

RULES ON THE LEGITIME OF ILLEGITIMATE CHILDREN (AS SOLE COMPULSORY HEIRS)


1. ILLEGITIMATE CHILDREN ALONE—THEY GET 1/2 OF THE ESTATE COLLECTIVELY.
‣ But remember that the sharing among the illegitimate children or descendants will depend on whether death occurred
before or during the effectivity of the Family Code

2. ILLEGITIMATE CHILDREN CAN BE REPRESENTED BY EITHER LEGITIMATE AND ILLEGITIMATE DESCENDANTS


‣ This is granted by Art. 892

‣ The rule is different in case of representation of legitimate children.

‣ In the case of descendants of legitimate children, the right of representation is given only to legitimate
descendants (not to illegitimate), by virtue of the provisions of Art. 992

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‣ BALANE: The net effect of all this is that the right of representation given to descendants of illegitimate children is
BROADER than the right of representation given to descendants of legitimate children. Thus, an illegitimate child of
a predeceased legitimate child cannot inherit by representation (Article 992), while an illegitimate child of an
illegitimate child can (Article 902). A classic instance of unintended consequence.

LEGITIME OF ILLEGITIMATE PARENTS AND SURVIVING SPOUSE

Article 903. The legitime of the parents who have an illegitimate child, when such child leaves neither legitimate
descendants, nor a surviving spouse, nor illegitimate children, is one-half of the hereditary estate of such illegitimate
child. If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever. If only the
widow or widower survives with parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary
estate of the child, and that of the surviving spouse also one-fourth of the estate. (n)

RULES ON THE LEGITIME OF ILLEGITIMATE PARENTS (AS SOLE COMPULSORY HEIRS) OR WITH SURVIVING SPOUSE
1. LLEGITIMATE PARENTS ALONE—THEY GET 1/2 OF THE ESTATE.
‣ Note that in the illegitimate ascending line, the right does NOT go beyond the parents (illegitimate ascendants are not
compulsory heirs)

2. ILLEGITIMATE PARENTS/SURVIVING SPOUSE—THE SHARING IS 1 /4 FOR THE PARENTS COLLECTIVELY AND 1 /4 FOR THE
SPOUSE.

3. ILLEGITIMATE PARENTS EXCLUDED BY ALL KINDS OF CHILDREN


‣ As secondary compulsory heirs, the illegitimate parents are inferior to legitimate parents.

‣ Whereas legitimate parents are excluded only by legitimate children, illegitimate parents are excluded by all kinds
of children, legitimate or illegitimate.

RESERVA TRONCAL

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

ORIGIN AND HISTORY


‣ The reserva troncal in its present form made its first appearance only in the Spanish Civil Code of 1889, though
prototypes existed in earlier general and foral law of Spain. The reserva troncal was found in Article 811 of the Spanish
Code.

‣ The Spanish Code contained two reservas: the viudal (also called the ordinaria because it was the older reserva) and the
troncal (also called the extraordinaria because it was a more recent addition). More, there was a reversion (the legal) in the
same Code. Add to that the reversion in adoption (the adoptiva) found in Sec. 1 of Act 3977 and incorporated in the Rules
of Court of 1940, and we had in our law just prior to the present Civil Code, two reservas and two reversiones:
1. Reserva viudal (Article 968, Spanish Code)

2. Reserva troncal (Article 811, Spanish Code)

3. Reversion legal (Article 812, Spanish Code)

4. Reversion adoptiva (Act 3977 and incorporated in Rule 100, Section 5, Rules of Court of 1940)

‣ Reserva: Property set aside for a group of people who are the relatives of the person from whom it came

‣ Reversiones: Property goes back to the person from whom it came.

‣ The draft Code submitted to Congress in 1948 had abolished all these four but the legislature decided to retain the
reserva troncal.
‣ BALANE: All of the four were supposed to be abolished in the New Civil Code, but there was this congressman from
Romblon who pushed for the revival of the reserva troncal at the last minute.

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‣ Other terms used to refer to the reserva troncal: lineal, familiar, extraordmaria, semi-troncal, and the pseudo-troncal

PURPOSE
‣ The purpose of the principle was to provide a means to bring back property back to within the family line from there it
came, which has left because of marriage.

‣ It is marriage (of outside the line) that makes it possible for the property to drift away from the line where it came

‣ It has its roots in medieval and feudal times which was incorporated in the Philippines by the Spaniards.

‣ The reserva troncal is a special rule designed primarily to assure the return of the reservable property to the third degree
relatives belonging to the line from which the property originally came, and to avoid its being dissipated by the relatives of
the inheriting ascendant

‣ The purpose is also to avoid the danger that property existing for many years in a family’s patrimony might pass
gratuitously to outsiders through the accident of marriage and untimely death.

‣ It is to prevent outsiders from acquiring, through an accident of life, property which, but for such accident, would have
remained in the family.

‣ BALANE: One’s interpretation on the purpose of the reserva has consequences (as will be discussed later) on the
interpretation of issues pertaining to it. These two view have different consequences in several debatable issues.
‣ MANRESA: Purpose of the reserva is BOTH curative and preventive. To bring back property to the line from where it
came or to prevent the property from leaving the line from where it came
‣ JBL REYES: Purpose of the reserve is PURELY curative.

APPLICABILITY OF ART. 891; REQUISITES OF THE RESERVA TRONCAL


‣ All relationships involved here must be LEGITIMATE (Nieva vs Alcala 1920)

‣ The following requisites must be present in order for Art. 891 to apply:

1. THAT THE PROPERTY WAS ACQUIRED BY A PERSON FROM AN ASCENDANT OR FROM A BROTHER OR SISTER BY
GRATUITOUS TITLE

‣ The person receiving (by donation or succession) need not necessarily be a descendant, since the grantor is not
necessarily an ascendant, he may be a sibling

‣ Acquisition should be by gratuitous title when “the recipient does not give anything in return”.

‣ It encompasses transmissions by donation (pure or simple, not onerous) or by succession (of whatever kind).

2. THAT SAID DESCENDANT DIED WITHOUT LEGITIMATE ISSUE


‣ Without legitimate issue means, such descendant dies without legitimate children.

‣ Note that only legitimate descendants will prevent the property from being inherited by the legitimate
ascending line by operation of law. Thus, the said descendant, may have a child, an illegitimate one, and the
ascendants can still inherit by operation of law

3. THAT THE PROPERTY IS INHERITED BY ANOTHER ASCENDANT BY OPERATION OF LAW; AND


‣ Transmission by operation of law is limited to succession, either by:

a. Compulsory Succession (to the legitime)

b. Intestate Succession

‣ BUT NOT testamentary succession or donation

‣ The ascendant here must be “another/other” ascendant, other than the origin.

‣ What are the cases where the other ascendant will inherit by operation of law, from his descendant?
a. Descendant has NO legitimate children/descendants
‣ This covers cases where the descendant has a surviving spouse and/or illegitimate children/descendants
(because in these cases, the ascendant is still entitled to a legitime because only legitimate descendants
will prevent the property from being inherited by the legitimate ascending line by operation of law. )

b. Descendant’s legitimate children/descendant ALL renounce or are incapacitated to inherit


‣ Even if the descendant has legitimate children, but they all renounce or are incapacitated to inherit, the
property will pass to the ascendant, thus reserva troncal can still apply.

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4. THAT THERE ARE RELATIVES WITHIN THE THIRD DEGREE BELONGING TO THE LINE FROM WHICH SAID PROPERTY CAME
‣ These are the reservatarios or reservees, the relatives in whose favour the reserva troncal operates (as will be
discussed later)

RULE IN ART. 891; RESERVATION IN FAVOR OF RELATIVES


‣ RULE: Art. 891 imposes an obligation on the part of the ascendant (the reservista or reservor), who inherits from
his descendant any property which the latter may have acquired by gratuitous title and by operation of law, from
another ascendant, or a brother or sister, to RESERVE such property
‣ Reservation of the property is required so that upon the death of such ascendant, it will be given to the relatives who
are within the third degree and who belong to the line from which said property came (the reservatarios or reservees)

PROCESS INVOLVED IN THE RESERVA TRONCAL


‣ Under the requisites and rule, the subject-property involved in the reserva troncal undergoes a process of three
transmissions or transfers:
1. First transfer—by gratuitous title, from a person to his descendant, brother or sister.

2. Second transfer—by operation of law, from the transferee in the first transfer to another ascendant. (It is this second
transfer that creates the reserva)
3. Third transfer—from the transferee in the second transfer to the relatives (reservatarios)
‣ SOLIVIO VS. COURT OF APPEALS 182 SCRA 119 (1990)
‣ Subject properties involved here was owned by Salustia Solivio, a widower, who had a child, Esteban Javellana, Jr.
When the mother died, her only son inherited her properties consisting mostly of lands in Iloilo. The son later died a
bachelor, without descendants, brothers, sisters, nephews or nieces. His only relatives are his maternal aunt
Celedonia (half-sister of his mother) and Concordia (sister of his deceased father). During his lifetime, Esteban, Jr. had,
more than once, expressed to his aunt Celedonia and some close friends his plan to place his estate in a foundation
to honor his mother and to help poor but deserving students obtain a college education. Unfortunately, he died of
heart attack before he could set up such foundation. Two weeks after his funeral, Concordia and Celedonia talked
about what to do with Esteban’s properties. Celedonia told Concordia about Esteban’s desire to place his estate in a
foundation to be named after his mother, from whom his properties came, for the purpose of helping indigent students
in their schooling. Concordia agreed to carry out the plan of the deceased. Pursuant to their agreement that Celedonia
would take care of the proceedings leading to the formation of the foundation, she was declared the sole heir by the
court. Thereafter, she sold properties of the estate to pay the taxes and other obligations of the de- ceased and
proceeded to set up the foundation. Concordia later filed a petition to also be recognized as an heir of Esteban
(maybe she changed her mind?). This was granted, the trial court ordered the execution of its judgment pending
appeal and required Celedonia to submit an inventory and accounting of the estate. Caledonia refused, saying that the
properties have been transferred to the foundation.

‣ The issue was whether the decedent’s properties were subject to reserva troncal in favor of Celedonia, his relative
within the third degree on his mother’s side from whom he had inherited them.

‣ Court ruled that there reserve troncal does NOT apply in this case. It does not apply to property inherited by a
descendant from his ascendant
‣ The property of the deceased, Esteban is not reservable property, for he was not an ascendant, but the
descendant of his mother, from whom he inherited the properties in question. Therefore, he did not hold his
inheritance subject to a reservation in favor of his aunt, Celedonia Solivio, who is his relative within the third
degree on his mother’s side. The reserva troncal applies to properties inherited by an ascendant from a
descendant who inherited it from another ascendant or a brother or sister.

‣ BALANE: In this case, there can be no reserva troncal as the second transmission was not from a descendant to an
ascendant, the properties passed to the person’s aunts. The third requisite (that the property is inherited by another
ascendant by operation of law) is absent.

PARTIES INVOLVED IN A RESERVA TRONCAL


‣ Before going into the parties, know these basic rules first:

a. NO INQUIRY IS TO BE MADE BEYOND THE ORIGIN/MEDIATE SOURCE


‣ It does not matter who the owner of the property was before it was acquired by the Origin

b. ALL THE RELATIONSHIPS AMONG THE PARTIES MUST BE LEGITIMATE


‣ The provisions of Art. 891 apply only to legitimate relatives, NOT to illegitimate relations (Nieva vs Alcala 1920)

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1. ORIGIN OR MEDIATE SOURCE


‣ The transferor in the first transfer

‣ He is either any of the following, of the Prepositus:

a. Ascendant
‣ May be of any degree of ascent

b. Sibling (brother or sister)


‣ Must it be half-blood?

‣ Debatable, but it seems the view of Manresa that reserva applies to BOTH full and half blood siblings is
better
‣ MANRESA: It does not matter whether the fraternal relationship is of the full-or the half-blood. In either case
a reserva may arise. Since the law makes no distinction, we should not make one. Reserva is NOT just
preventive but curative, it should apply to both full and half-blood as to prevent the property form leaving
the line
‣ JBL REYES: it must be half-blood, since if it is full-blood, there is no line, the line is both paternal and
maternal, the property does not leave the line in this case. The property must leave the line, for reserva to
apply, since the purpose of the reserva is to bring back property to the line from which it came, thus, if the
origin is a sibling, he or she must be of half-blood, for the property to leave the line. Reserva is merely
curative in nature.
2. PREPOSITUS
‣ The first transferee, who is a descendant or brother/sister of the Origin

‣ He is the descendant who received by gratuitous title and who later dies without issue, making his other ascendant
inherit by operation of law.

‣ While the property is still with the Prepositus there is as yet no reserva. The reserva arises only upon the second
transfer (to the reservista).
‣ Consequently, while the property is owned by the prepositus, he has all the rights of ownership over it and may
exercise such rights in order to prevent a reserva from arising. He can do this in several ways, such as:

a. By substituting or alienating the property;

b. By bequeathing or devising it either to the potential reservista or to third persons; or

c. By partitioning in such a way as to assign the property to parties other than the potential reservista
‣ He is thus the “arbiter” of the reserva troncal

3. RESERVISTA (RESERVOR)
‣ He is an ascendant of the Prepositus, of whatever degree, who inherits by operation of law property from his such
descendant

‣ The Reservista must be an ascendant other than the Origin/Mediate Source (if the latter is also an ascendant, as he
could be a sibling)

‣ The law is clear on this: it refers to the Origin/Mediate Source as another ascendant. If these two parties are the
same person, there would be no reserva troncal.

‣ He is the ascendant obliged to reserve

‣ Should the Origin/Mediate Source and the Reservista belong to different/opposite lines?
‣ Debatable, but the better view is, NO, they need not belong to different lines, since the law does not distinguish.

‣ MANRESA: No, reserva can apply regardless if they belong to same or opposite lines since the law does not
distinguish. The purpose of the reserva is not merely curative but also preventive.
‣ JBL REYES: Yes, because if they belong in both lines, the property cannot leave the line, thus, there is no
reason for reserva to apply. Reserva is purely curative.
‣ How can this happen in the first place? remember that the origin need not be the father or mother, of the
prepositus he just needs to be an ascendant (or a sibling) thus, he can be a grandfather or grandmother and there
could be mixing of lines
‣ Example: A receives by donation a parcel of land from his paternal grandfather X. Upon A’s death, the parcel
passes by intestacy to his father Y (X’s son). The property never left the line. Is Y obliged to reserve?

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‣ The better view is, YES, he is still required to reserve because the law makes no distinction, and the purpose of
the reserva is not only curative, but also preventive, to prevent the property from leaving the line
‣ This was touched on by the SC in Carrillo vs. De la Paz, 18 SCRA 467 [1966], where it held, in obiter, this view.
4. RESERVATARIOS (RESERVEES)
‣ They are the relatives benefited.

‣ The reserva is in favor of a class, collectively referred to as the reservatarios (reservees).

‣ Requirements to be a reservatario:
a. HE MUST BE WITHIN THE THIRD DEGREE (OF CONSANGUINITY) FROM THE PREPOSITUS
‣ BALANE: The law does not say it is third degree from the prepositus, but this is the correct rule as supported by
all civilists unanimously
b. HE MUST BELONG TO THE LINE FROM WHICH THE PROPERTY CAME. (THIS IS DETERMINED BY THE ORIGIN/MEDIATE
SOURCE)
i. If origin is an ascendant

‣ See whether such person is of the paternal or maternal line.

ii. If origin is a sibling

‣ If a half-brother or half-sister, distinguish also whether of the paternal or maternal line.

‣ If, however, it is a brother or sister of the full blood, it would not be possible to distinguish the lines. Thus, in
this case the question of which line is immaterial, all relatives within the third degree, irrespective of lines
is a reservatario (as supported by Manresa)
‣ This is an exception to the general rule that the reservatario must belong to the line from which the
property came, in this case, the question of line is immaterial, those within the third degree from the
prepositus are all reservatarias (according to Manresa). But if you would follow JBL Reyes, there would
be no reserva, as the property never left the line in case of full-blood siblings.
c. HE MUST BE RELATED BY BLOOD TO THE ORIGIN OR MEDIATE SOURCE
‣ This is implied. The reservatario must be related by blood to the origin (according to Sanchez-Roman)

‣ Who are the possible relatives that can be reservatarios?


1. Brothers or sisters

2. Nephews or nieces

3. Uncles and aunts

4. Grandparents (if they are still living, and no legitimate descendants)

‣ These are the only relatives within the third degree of the Prepositus
‣ BALANE: If reserva troncal applies and the descendant (prepositus) has legitimate children, but they all renounce or
are incapacitated to inherit, such that the property will pass to the ascendant (reservista), are the descendants who
have renounced or are incapacitated inherit considered reservatarios? (note that they are obviously relatives within
the third degree from the prepositus) In other words, can the descendant son, or even grandson of the prepositus,
now become a reservatario in this case?

‣ To be qualified as a reservatario, is it necessary that one must already be living when the Prepositus dies?
‣ NO, they are not required to be alive when the prepositus dies BUT they must be living with the Reservista dies

‣ BALANE:
‣ NOT required, because as Manresa points out: ‘The reserva is established in favor of a group or class: the
relatives within the third degree, not in favor of specific individuals. As long, therefore, as the reservatario is
alive at the time of the reservista’s death, he qualifies as such, even if he was conceived and born after the
Prepositus’ death.
‣ The reservatarios do not “strictly” succeed or inherit from the prepositus, it is a kind of delayed succession.
This is despite the fact that some cases say that the reservatarios inherits (the reserved property) from the
prepositus (not the reservista). They do not “strictly” inherit from the prepositus because they are not
required to be alive at the time the prepositus dies. The reservatarios do not inherit from the prepositus
directly because one requirement of the capacity to succeed is that the heir should be alive when the
decedent dies (Art. 1025). They are inheriting by virtue of the special rule of the reserva troncal. The correct
way to say it, is that the reservatarios “as if” or “by analogy” suceeds from the prepositus like ordinary heirs.

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‣ Is there preference among reservatarios?
‣ YES, rules on intestacy will apply. It is the rules of intestacy which chooses who the reservatarios are and how
transmission to them is governed

‣ BALANE: According to the Padura case, in the reserva, it is “as if “the reservatarios inherit from the prepositus by
intestacy, thus, by analogy, the following principles apply to the reservatarios:
1. PROXIMITY IN DEGREE: Those reservatarios nearer in degree of relationship to the Prepositus will exclude
those more remotely related
2. RIGHT OF REPRESENTATION: Heirs of the reservatarios has the right of representation in the proper cases
3. RULE ON DOUBLE SHARE: Those whole blood brothers and nephews are entitled to a share double that of
brothers and nephews of half blood.
‣ PADURA VS. BALDOVINO GR NO. 11960, DECEMBER 27, 1958
‣ The stated purpose of the reserva is accomplished once the property has devolved to the specified relatives of
the line of origin. But from this time on, there is no further occasion for its application.

‣ In the relations between one reservatario and another of the same degree, there is no call for applying
Art. 891 any longer; wherefore, the respective share of each in the reversionary property should be
governed by the ordinary rules of intestate succession.

‣ In this spirit the jurisprudence of this Court and that of Spain has resolved that upon the death of the
ascendant reservista, the reservable property should pass, not to all the reservatorios as a class, but only to
those nearest in degree to the descendant (prepositus), excluding those reservatarios of more remote degree.
And within the third degree of relationship from the descendant (prepositus), the right of representation
operates in favor of nephews

‣ Proximity of degree and right of representation are basic principles of ordinary intestate succession; so
is the rule that whole blood brothers and nephews are entitled to a share double that of brothers and
nephews of half blood.

‣ If in determining the rights of the reservatarios inter se, proximity of degree and the right of representation of
nephews are made to apply, the rule of double share for immediate collaterals, of the whole blood should
be likewise operative.

‣ In other words, the reserva troncal merely determines the group of relatives (reservatarios) to whom the
property should be returned; but within that group the individual right to the property should be decided
by the applicable rules of ordinary intestate succession, since Art. 891 does not specify otherwise.

‣ This conclusion is strengthened by the circumstance that the reserva being an exceptional case, its
application should be limited to what is strictly needed to accomplish the purpose of the law.

‣ The restrictive interpretation is the more imperative in view of the new Civil Code’s hostility to successional
reservas and reversions, as exemplified by the suppression of the reserva viudal and the reversion legal of the
Code of 1889

‣ Even during the reservista’s lifetime, the reservatarios, who are the ultimate acquirers of the property, can
already assert the right to prevent the reservista from doing anything that might frustrate their reversionary
right; and for this purpose they can compel the annotation of their right in the Registry of Property even while
the reservista is alive. This right is incompatible with the mere expectancy that corresponds to the natural heirs
of the reservista. It is likewise clear that the reservable property is no part of the estate of the reservista, who
may not dispose of them by will, so long as there are reservatarios existing. The latter, therefore, do not inherit
from the reservista, but from the descendant prepositus, of whom the reservatarios are the heirs mortis causa,
subject of the condition that they must survive the reservista.
‣ Had the nephews of whole and half-blood succeeded the prepositus directly, those of full-blood
would undoubtedly receive a double share compared to those of the half blood, why then should the
latter receive equal shares simply because the transmission of the property was delayed by the
interregnum of the reserva? The decedent (causante) the heirs and their relationship being the same,
there is no cogent reason why the hereditary portions should vary.

‣ Is there representation among the reservatarios?


‣ YES, as in intestate succession, the rule of preference of degree among reservatarios is qualified by the rule of
representation.

‣ BALANE: Actually, there will be only one instance of representation among the reservatarios, a case of the
Prepositus being survived by brothers/sisters and children of a predeceased or incapacitated brother/sister.
‣ FLORENTINO VS. FLORENTINO 40 PHIL. 480 (1919)

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‣ Property disputed in this case belonged to Apolonio II. He had 11 children, 9 from his first marriage and 2 from
his second.The child with the second wife are Mercedes and Apolonio III. When Apolonio II died, his estate was
accordingly disposed of and distributed to his hers, some of which passed his son Apolonio III. Apolonio later
died, childless and single, thus his properties passed to his mother, Severina. When she died, the properties
passed to her daughter, Mercedes. Several children of Apolonio II (from his first marriage), some in their own
right, some by right of representation, filed an action to recover their share of the properties from Mercedes,
claiming the application of reserva troncal, they being the relatives within the third degree of Apolonio III (their
half-brother) from the line from which the property came (the reservatarios). The TC dismissed the action, it said
that reserva does not apply as the underlying purpose of the reserva of preventing the subject property from
falling into the hands of strangers had been avoided because it was inherited by the sister of the decedent. It
also said that to apply reserva tranquil would impair the legitimate Mercedes is entitled to.

‣ Issue was whether reserva troncal applies such that the plaintiffs are entitled to their share

‣ Court held that reserva troncal applies and that the plaintiffs are entitled to their share as they are
relatives of the prepositus within the third degree. Some (3 plaintiffs) are his relatives within the third
degree in their own right and some (12 plaintiffs) are such by representation, all of them are indisputably
entitled as reservatarios to the property. The reservista, has no right to choose, which of the
reservatarios should inherit.
‣ Following the order prescribed by law in legitimate succession, when there are relatives of the descendant
within the third degree, the right of the nearest relative, called reservatario, over the property which the
reservista (person holding it subject to reservation) should return to him, excludes that of the one more
remote. The right of representation cannot be alleged when the one claiming same as a reservatario of the
reservable property is not among the relatives within the third degree belonging to the line from which such
property came, inasmuch as the right granted by the Civil Code in Article 811 is in the highest degree
personal and for the exclusive benefit of designated persons who are the relatives, within the third degree,
of the person from whom the reservable property came. Therefore, relatives of the fourth and the
succeeding degrees can never be considered as reservatarios, since the law does not recognize them as
such.

‣ In spite of what has been said relative to the right of representation on the part of one alleging his right as
reservatario, who is not within the third degree of relationship, nevertheless there is right of
representation on the part of reservatarios who are within the third degree mentioned by law, as in
the case of nephews of the deceased person from whom the reservable property came. These
reservatarios have the right to represent their ascendants (fathers and mothers) who are the brothers
of the said deceased person and relatives within the third degree in accordance with Article 811 of
the Civil Code.
‣ According to the provisions of law, ascendants do not inherit the reservable property, but its enjoyment, use
or trust, merely for the reason that said law imposes the obligation to reserve and preserve same for certain
designated persons who, on the death of the said ascendants-reservists, (taking into consideration the
nature of the line from which such property came) acquire the ownership of said property in fact and by
operation of law in the same manner as forced heirs (because they are also such)—said property reverts to
said line as long as the aforementioned persons who, from the death of the ascendant-reservists, acquire in
fact the right of reservatarios (persons for whom property is reserved), and are relatives, within the third
degree, of the descendant from whom the reservable property came.

‣ Any ascendant who inherits from his descendant any properly, while there are living, within the third degree,
relatives of the latter, is nothing but a life usufructuary or a fiduciary of the reservable property received. He
is, however, the legitimate owner of his own property which is not reservable property and which
constitutes his legitime, according to Article 809 of the Civil Code. But if, afterwards, all of the relatives,
within the third degree, of the descendant (from whom came the reservable property) die or disappear, the
said property becomes free property, by operation of law, and is thereby converted into the legitime of the
ascendant heir who can transmit it at his death to his legitimate successors or testamentary heirs. This
property has now lost its nature of reservable property, pertaining thereto at the death of the relatives,
called reservatarios, who belonged within the third degree to the line from which such property came.

‣ Reservable property neither comes, nor falls under, the absolute dominion of the ascendant who inherits
and receives same from his descendant, there- fore it does not form part of his own property nor
become the legitime of his forced heirs. It becomes his own property only in case that all the relatives of
his own descendant shall have died (reservista), in which case said reservable property losses such
character.

‣ While it is true that by giving the reservable property to only one reservee it did not pass into the
hands of strangers, nevertheless, it is likewise true that the heiress of the reservor was only one of
the reservees and there is no reason founded upon law and justice why the other reservees should
be deprived of their shares in the reservable property

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JURIDICAL NATURE OF THE RESERVA TRONCAL


‣ BALANE: Commentators have differing opinions as to the nature of the reserva troncal, some say it is a trust, some say it
is a usufruct, some say it is a kind of possession. Several cases tell us its juridical nature, The juridical nature of reserva
troncal may be viewed from two aspects—from that of the reservista and that of the reservatarios.
1. NATURE OF THE RESERVISTA’S RIGHT
‣ EDROSO VS. SABLAN 25 PHIL. 295 (1913)
‣ Subject-properties belonged to Victoriano Sablan. Upon his death, its was properly divided between his heirs, one
of which was his son, Pedro. When Pedro died, childless and unmarried, his properties passed to his mother
Marcelina (Victoriano’s wife). Marcella wanted to register the properties she inherited from her son, as her own, but
the TC denied. It held that consent of the reservatarios is necessary before it could be validly registered in her
name, as the reservista, it must be registered in their names jointly.

‣ Issue in this case asks the question, what are the rights of the reservista in the reserved property?

‣ Court held that the reservista absolute ownership over the reserved property (right to use, enjoy, dispose
and recover it). But such right is subject to a resolutory condition that, in the event, that such reservista
dies, and there are still reservatarios who are still living, then the properies would be given to them
‣ There are not lacking writers who say, only those of a usufructuary, the ultimate title belonging to the persons in
whose favor the reservation is made. If that were so, the person holding the property could not apply for
registration of title, but the person In whose favor it must be reserved, with the former’s consent. This opinion
does NOT seem to be admissible

‣ The ascendant who inherits from a descendant, whether by the latter's wish or by operation of law, acquires
the inheritance by virtue of a title perfectly transferring absolute ownership. All the attributes of the right
of ownership belong to him exclusively—use, enjoyment, disposal and recovery.

‣ This absolute ownership which is inherent in the hereditary title, is not altered in the least, if there be no
relatives within the third degree in the line whence the property proceeds or they die before the ascendant heir
who is the possessor and absolute owner of the property.

‣ If there should be relatives within the third degree who belong to the line whence the property proceeded, then
a limitation to that absolute ownership would arise. The nature and scope of this limitation must be determined
with exactness in order not to vitiate rights that the law wishes to be effective.

‣ The opinion which makes this limitation consist in reducing the ascendant heir to the condition of a mere
usufructuary, depriving him of the right of disposal and recovery, does not seem to have support in the law, as
it does have, according to the opinion that has been expressed in speaking of the rights of the father or mother
who has married again.

‣ The conclusion is that the person required by Article 811 to reserve the right has, beyond any doubt at
all, the rights of use and usufruct. He has, moreover, for the reasons set forth, the legal title and do-
minion, although under a condition subsequent (resolutory condition).

‣ Clearly he has, under an express provision of the law, the right to dispose of the property reserved, and to
dispose of is to alienate, although under a condition.

‣ He has the right to recover it, because he is the one who possesses or should possess it and have tide to it,
although a limited and revocable one.

‣ In a word, the legal title and dominion, even though under a condition, reside in him while he lives. After the
right required by law to be reserved has been assured, he can do anything that a genuine owner can do.

‣ On the other hand, the relatives within the third degree in whose favor the right is reserved (the
reservatarios) cannot dispose of the property, first because it is in no way, either actually, constructively
or formally, in their possession; and, moreover, because they have no title of ownership or of fee simple
which they can transmit to another, on the hypothesis that only when the person who must reserve the right
should die before them will they take their place in the succession of the descendant of whom they are
relatives within the third degree, that is to say, a second contingent place in said legitimate succession in the
fashion of aspirants to a possible future legacy.

‣ If any of the persons in whose favor the right is reserved should, after their right has been assured in the
registry, dare to dispose of even nothing more than the fee simple of the property to be reserved his act
would be null and void, for, it is impossible to determine the part “that might pertain therein to the relative at
the time he exercised the right, because in view of the nature and scope of the right required by law to be
reserved the extent of his right cannot be foreseen, for it may disappear by his dying before the person
required to reserve it, just as it may even become absolute should that person die.

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‣ No act of disposal inter vivos of the person required by law to reserve the right can be impugned by him
in whose favor it is reserved, because such person has all, absolutely all, the rights inherent in
ownership, except that the legal title is burdened with a condition that the third party acquirer may
ascertain from the registry in order to know that he is acquiring a title subject to a condition
subsequent.
‣ In conclusion, it seems to us that only an act of disposal mortis causa in favor of persons other than
relatives within the third degree of the descendant from whom he got the property to be reserved must be
prohibited to him, because this alone has been the object of the law:

‣ To prevent persons outside a family from securing, by some special accident of life, property that would
otherwise have remained therein.

‣ Daming sinabe ng court dito, but note the following points:


1. The reservista’s right over the reserved property is one of ownership (not of trust, usufruct or possession).
2. The ownership is subject to a resolutory condition, the existence of reservatarios at the time of the reservista’s
death. (resolutory because the happening of the condition extinguishes the right)
3. The right of ownership is alienable, but subject to the same resolutory condition.
4. The reservista’s right of ownership is registrable (if it is real property)
2. NATURE OF THE RESERVATARIOS’ RIGHT
‣ SIENES VS. ESPARCIA 1 SCRA 750 (1961)
‣ Subject-properties were owned by Saturnino. He had 5 children, 1 son (Francisco) with his second wife (Andrea),
the rest, with his first wife. When Saturnino died, his estate was accordingly inherited by his heirs. Francisco later
died, childless and unmarried, thus, his estate passed to his mother, Andrea. Before Andrea died, she sold the
subject-properties to third persons. The sons and daughters or Saturnino (Francisco’s half-siblings), who are the
reservatarios, also sold the properties, before the death of Andrea.

‣ Issue was the validity of the sales entered into by the reservista and the reservatarios.

‣ Court held that both sales were valid but both were subject to conditions; a resolutory condition in the case
of the sale by the reservista and a suspensive condition in the case of the reservatarios
‣ The reserva creates two resolutory conditions (against the reservista), namely:

1. The death of the ascendant obliged to reserve

2. The survival, at the time of his death, of relatives within the third degree belonging to the line from which
the property came
‣ 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 the reservable property but subject to the reservation, said alienation
transmitting only the revocable and conditional ownership of the reservista, the rights acquired by the
transferee being revoked or resolved by the survival of reservatarios at the time of the death of the reservista

‣ The sale made by Andrea in favor of third persons was, therefore, subject to the condition that the vendees
would definitely acquire ownership, by virtue of the alienation, only if the vendor died without being survived by
any person entitled to the reservable property. Inasmuch as when Andrea died, the reservatarios were still alive,
the conclusion becomes inescapable that the previous sale made by the former in favor of third persons
became of no legal effect and the reservable property subject matter thereof passed in exclusive ownership to
the reservatarios.

‣ On the other hand, it is also clear that the sale executed by the reservatarios in favor of third persons was
subject to a similar resolutory condition (a suspensive condition, really). The reserva instituted by law in favor of
the heirs within the third degree belonging to the line from which the reservable property came, constitutes a
real right which the reservee may alienate and dispose of, albeit conditionally, the condition being that the
alienation shall transfer ownership to the vendee only if and when the reservee survives the person obliged to
reserve

‣ In this case, one of the reservatarios, was still alive when Andrea, the person obliged to reserve, died. Thus the
former became the absolute owner of the reservable property upon Andrea’s death.

‣ From Sienes, the following may be derived or implied:


1. The reservatarios have a right of expectancy over the property.
2. The right is subject to a suspensive condition, the expectancy ripens into ownership if the reservatarios survive
the reservista (it is suspensive because the happening of the condition creates or gives birth to the right)

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3. The right is alienable, but subject to the same suspensive condition (Note: Sienes erroneously refers to the
condition as “resolutory”).
4. The right is registrable (if it is real property), by annotation on the certificate title (remember that this is titled in
the name of the reservista, who has ownership of the reserved properties in the meantime)
‣ GONZALES VS. CFI 104 SCRA 479 (1981)
‣ Subject properties belonged to Benito Tuason. When he died, it was inherited by his heirs, his 3 children, one of
whom was Benito Legarda. When the the son later died, the properties went to the son’s widow (Filomena Roces)
and children. Filomena Roces died, and the properties went to her mother, Filomena Legarda (I guess her children
had also died at this point). When Filamena Legarda died, the properties went to her grandchildren by
testamentary succession, she however, bypassed and excluded her own sons and daughters. One of the children
filed an action and sought to recover the properties based on the application of reserva troncal.

‣ The issue was, whether the disputed properties are reservable properties under Article 891, and whether Filomena
Legarda could dispose of them in her will in favor of her grandchildren to the exclusion of her six children.

‣ In other words, whether Mrs. Legarda as reservor, could convey the reservable properties by will of mortis
causa to the reservees within the third degree (her sixteen grandchildren) to the exclusion of the reservees in
the second degree, her three daughters and three sons.

‣ Court held that reserva troncal applies in this case as the requisites of Art. 891 are present. Mrs. Legarda
could NOT convey in her holographic will to her sixteen grandchildren the reservable properties because
the reservable properties did NOT form part of her estate. The reservor cannot make a disposition mortis
causa of the reservable properties as long as the reservees survived the reservor.
‣ As repeatedly held in the Cano and Padura cases, the reservees inherit the reservable properties from the
prepositus, not from the reservor. The reservees are the heirs mortis causa subject to the condition that they
must survive the reservor

‣ Article 891 clearly indicates that the reservable properties should be inherited by all the nearest relatives within
the third degree from the prepositus who in this case are the six children of Mrs. Legarda. She could not
select the reservees to whom the reservable property should be given and deprive the other reservees
of their share therein.
‣ Because the Rules on Intestacy (particularly the rules of proximity of degree, the nearer exclude the more
remote) apply, once the application of the reserva troncal
‣ To allow the reservor in this case to make a testamentary disposition of the reservable properties in favor of the
reservees in the third degree and, consequently, to ignore the reservees in the second degree would be a
glaring violation of Article 891. That testamentary disposition cannot be allowed.

‣ Reservable property left, through a will or otherwise, by the death of ascendant (reservista) together with his
own property in favor of another of his descendants as forced heir, forms no part of the latter’s lawful
inheritance nor of the legitime, for the reason that, as said properly continued to be reservable, the heir
receiving the same as an inheritance from his ascendant has the strict obligation of its delivery to the relatives,
within the third degree, or the predecessor in interest (prepositus), without prejudicing the right of the heir to an
aliquot part of the property, if he has at the same time the right of a reservatario
‣ BALANE:
‣ The reservatarios do not really inherit from the prepositus, because they are not required to be alive
when the prepositus dies (note that this is a requirement in capacity to succeed in Art. 1025). They only
inherit from the prepositus “in a manner of speaking”. They really inherit by virtue of the special rule of
the reserva troncal.
‣ The rule in this jurisdiction, therefore, is that, upon the reservista’s death, the property passes by strict operation
of law (according to the rules of intestate succession, declared in the Padura case), to the proper reservatarios.
Thus, the selection of which reservatarios will get the property is made by law and not by the reservista. The
reservista has no power to appoint, by will, which reservatarios will get the reserved property

RULES REGARDING THE PROPERTY RESERVED


1. ANY KIND OF PROPERTY IS RESERVABLE, EVEN INCORPOREAL PROPERTY.
‣ Provided that it can be identified

‣ In one case, a sugar quota allotment (incorporeal property) was held to be reservable.
2. THE VERY SAME PROPERTY MUST GO THROUGH THE PROCESS OF TRANSMISSIONS IN ORDER FOR THE RESERVA TO ARISE
‣ Remember that there are 3 transmissions involved

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‣ The self-same property must come from the Mediate Source, to the Prepositus by gratuitous title, and to the reservista
by operation of law.

‣ If the Prepositus substitutes the property by selling, bartering, or exchanging it, the substitute cannot be reserved.

‣ Note that while the property is with the Prepositus, there is yet no reserva, which commences only when the
property is received by the reservista.
‣ Consequently, the Prepositus has, over the property, plenary powers of ownership, and he may exercise these
powers to thwart a potential reserva.
‣ Remember that the Prepositus is the arbiter of the reserva
3. THE RESERVED PROPERTY IS NOT PART OF THE RESERVISTA’S ESTATE UPON HIS DEATH
‣ Unless there are no reservatarios

‣ CANO VS. DIRECTOR 105 PHIL. 1 (1959)


‣ In this case, the prepositus and the reservista (Maria Cano) had already died. The reservatarios thus applied for the
issuance of a decree of registration of title in their favor. The heirs of the reservista opposed, claiming that the
subject-matter should be ventilated in an judicial admnistration proceeding and that the Registration Court had no
jurisdiction to grant the application. Such heirs were claiming that the rights of the reservatarios should be
declared in such contentious proceeding where the application of the reserva troncal should be duly proved. The
lower court granted the petition for the issuance of a new certificate, for the reason that the death of the reservista
vested the ownership of the property in the reservatarios as the sole reservatario troncal.

‣ Court affirmed the decision of the lower court and held that a separate proceeding to determine the
existence of the reserva tranquil is NOT required, and may be established in the registration proceedings.
The reserved property is NOT part of the estate of the reservista, and does not even answer for the debts of
the latter. Hence, its acquisition by the reservatario may be entered in the property records without
necessity of estate proceedings, since the basic requisites therefor appear of record. It is equally well
settled that the reservable property can not be transmitted by a reservista to her or his own successors
mortis causa, so long as a reservatario within the third degree from the prepositus and belonging to the line
where the property came, is in existence when the reservista dies.
‣ The requisites for the application of the reserva troncal have already been declared to exist by the decree of
registration wherein the rights of the reservatario troncal were expressly recognized

‣ The contention that an intestacy proceeding is still necessary rests upon the assumption that the reservatario
will succeed in, or inherit, the reservable property from the reservista. This is not true.

‣ The reservatario is not the reservista's successor mortis causa nor is the reservable property part of the
reservista's estate; the reservatario receives the property as a conditional heir of the descendant (prepositus),
said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during
the reservista’s lifetime.

‣ The authorities are all agreed that there being reservatarios that survive the reservista the latter must be
deemed to have enjoyed no more than a life interest in the reservable property.

‣ It is a consequence of these principles that upon the death of the reservista, the reservatario nearest to the
prepositus, becomes, automatically and by operation of law, the owner of the reservable property.

‣ BALANE: The Cano ruling is perfectly consistent with the principle that the reserved property, upon the reservista’a
death, passes to the reservatarios by strict operation of law. It may be stated, relevantly, that as a consequence of
the rule laid down in Cano, since the reserved property is not computed as part of the reservista’s estate, it is not
taken into account in determining the legitimes of the reservista’s compulsory heirs. It thus partakes the nature of
an encumbrance or burden on the legitimate of the compulsory heirs of the reservista (a burden imposed by law)

RESERVA-MAXIMA AND RESERVA MINIMA


‣ A problem will arise these elements concur:

1. The Prepositus acquires property by gratuitous title from the origin or mediate source
2. The Prepositus has other properties of his own (which he did not acquire from the mediate source)
3. The Prepositus makes a will instituting the ascendant-reservista, as a compulsory heir, to a part of his estate
4. There is a mixture of properties left in the Prepositus’ estate (from mediate source and those of his own),
which will pass to the ascendant-reservista by operation of law
‣ Thus, the properties will pass to the reservista by will and by operation of law
‣ Example:

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‣ The prepositus acquires P4 million from the mediate source. He also has properties of P6 million of his own. He makes
a will instituting his mother to “1/2” of his estate. His mother was the sole compulsory heir. Thus, the entire estate of
P10 million passes to his mother partly by will (P5 million) and party by operation of law through compulsory and
intestate succession (P5 million).
‣ The problem is, how much is the reserved property? Note that only P5 million passes by operation of law and only P4
million came from the mediate source
‣ First, remember the following rules pertaining to the amount of reserved property passing to the reservista
1. It must come from the origin or mediate source
‣ Thus, in the example above, only P4 million could possibly be the reserved property, it cannot be more than that,
since this is only the property that came from the mediate source
2. It must pass to the prepositus by operation of law (either through compulsory or intestate succession)
‣ This is exactly the problem, “what properties are deemed to have passed by operation of law?” such that, it is
those properties that will comprise of the reservable estate. In other words, the issue is, how much of the property
(from the mediate source) passed by operation of law?
‣ Two theories have been advanced (regarding which properties, coming from the mediate source, have passed by
operation of law):
1. RESERVA MAXIMA
‣ As much of the potentially reservable property as possible must be deemed included in the part that passes
by operation of law.
‣ This “maximizes” theories scope of the reserva.
‣ In the example above, under the Reserva Maxima, the entire property which came from the mediate source (P4
million), which can “fit” into that property which passes by operation of law (P 5 million) is deemed as such, and is
considered reserved property. Thus, since the entire P4 million fits into the entire maximum property passing by
operation of law, such amount is considered the reserved property
‣ Note that it is not necessarily true that entire property from the mediate source will be reservable, it will depend on
how much, as much as possible, passes by operation of law
‣ Thus, in the example, if the prepositus instituted the reservista to 3/4 of his estate (instead of 1/2), then 7.5
million passes by will, and only 2.5 million passes by operation of law, then only 2.5 million, as the maximum
amount which can possible “fit” in the portion which passes by operation of law, will be the reserved property.
2. RESERVA MINIMA
‣ Every single property in the Prepositus’ estate must be deemed to pass, partly by will and partly by
operation of law, in the same proportion that the part given by will bears to the part not so given.
‣ In the example above, under the Reserva Minima, the property coming from the mediate source should be
proportion in accordance with the will, in that if the testator provides that 1/2 of his estate goes to his mother, then
such proportion provided means that 1/2 of the property received from the mediate source passes by will, only the
other half passes by operation of law. Thus, only P2 million passes by operation of law, from the property received
from the mediate source, thus only such amount is reserved property.
‣ In other words, the proportion provided by the testator, in the will, covers, not the entire estate in its aggregate
(this is reserva maxima), but it covers the properties from the mediate source and properties of his own (not
from the mediate source) SEPARATELY, such that part of the property from the mediate source is deemed
transferred by will, according to the proportion provided for.
‣ Note that the proportion is not always 1/2, it would depend on what is provided for by the testator.
‣ BALANE: Either view is defensible. The minima, however, finds wider acceptance here and in Spain. The minima is less
burdensome, we should follow that which is less burdensome. But according to Padilla, the maxima should prevail since
the reserva troncal is there to be given full effect.

RIGHTS AND OBLIGATIONS OF THE RESERVISTA AND RESERVATARIO


‣ There is NO express provision of law defining the rights and obligations of the reservista and reservatario
‣ Unlike the old reserva viudal, the reserva troncal does not have any implementing articles. This absence was solved
under the old Code simply by extending to the troncal the implementing provisions of the viudal.
‣ Thus in several old cases under the old law, the rights of the reservatarios (and the corresponding obligations of the
reservista) were:

1. To inventory the reserved properties;

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2. To annotate the reservable character (if registered immovables) in the Registry of Property within 90 days from
acceptance by the reservista;
3. To appraise the movables;

4. To secure by means of mortgage:

a. The indemnity for any deterioration of or damage to the property occasioned by the reservista’s fault or
negligence, and

b. The payment of the value of such reserved movables as may have been alienated by the reservista onerously
or gratuitously.
‣ BALANE: The abolition of the reserva viudal has caused some uncertainty whether these requirements still apply. The case
of Sumaya v. IAC, 201 SCRA 178 (1991), provides some help. It states that the requirement of annotation remains, despite
the abolition of the reserva viudal.
‣ Sumaya: ““The jurisprudential rule requiring annotation in the Registry of Property of the right reserved In real property
subject of reserva viudal insofar as it is applied to reserva troncal stays despite the abolition of reserva viudal in the
New Civil Code”
‣ Sumaya, however, is silent on two points: 1) within what period must the annotation be made; and 2) whether the other
requirements of the old viudal also remain.

EXTINGUISHMENT OF THE RESERVA TRONCAL


‣ The reserva troncal is extinguished by:

1. The death of the reservista,


‣ If the reservista dies, then the reserved property now goes to the reservatarios

2. The death of all the reservatarios


‣ BALANE: If one subscribes to the view that the reservista can belong to the line of origin, this will not ipso facto
extinguish the reserva because the reservista, could have a child subequently, who would be a reservatario.
3. Renunciation by all the reservatarios, provided that no other reservatario is born subsequently
‣ This is a conditional extinguishment

4. Total fortuitous loss of the reserved property


‣ It must be total and fortuitous, not partial, nor culpable or negligent.

5. Confusion or merger of rights


‣ As when the reservatarios acquire the reservista’s right by a contract inter vivos
6. Prescription or adverse possession.
‣ When the reserved property is not registered

DECEDENT CANNOT DEPRIVE THE COMPULSORY HEIRS OF, OR BURDEN THE LEGITIME

Article 904. The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly specified by law.
Neither can he impose upon the same any burden, encumbrance, condition, or substitution of any kind whatsoever. (813a)

Article 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes prescribed
in this Code. Should he do so, the same shall be considered as not imposed.

Article 1080. A parent who, in the Interest of his or her family, desires to keep any agricultural, industrial, or manufacturing
enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other
children to whom the property is not assigned, be paid in cash.

Article 1083. Every co-heir has a right to demand the division of the estate unless the testator should have ex- pressly
forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in Article 494. This
power of the testator to prohibit division applies to the legitimate

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FAMILY CODE
Article 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the
family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same
unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or
constituted the family home.

TESTATOR HAS NO POWER TO DEPRIVE THE COMPULSORY HEIRS OF THEIR LEGITIME


‣ RULE: THE TESTATOR IS DEVOID OF POWER TO DEPRIVE COMPULSORY HEIRS OF LEGITIME
‣ It is the law, not the testator, which determines the transmission of the legitimes.

‣ The legitime is NOT within the testator's control. It passes to the compulsory heirs by strict operation of law.

‣ This article reiterates this principle, as already embodied in Art. 886

‣ EXCEPTION: WHEN THE TESTATOR DISINHERITS HIS COMPULSORY HEIRS


‣ The only instance in which the law allows the testator to deprive the compulsory heirs of their legitimes is
disinheritance (Arts. 915-923), the grounds for which are set forth in Arts. 919- 921.

TESTATOR HAS NO POWER TO BURDEN THE LEGITIME


‣ RULE: THE TESTATOR CANNOT IMPOSE ANY BURDEN, ENCUMBRANCE, CONDITION, OR SUBSTITUTION OF ANY KIND
WHATSOEVER, ON THE LEGITIME

‣ This rule, first enunciated in Art. 872 and reiterated in the second paragraph of this Art. 904, is but a consequence of
the principle that the legitime passes by strict operation of law.

‣ EXCEPTION: IN AT LEAST TWO INSTANCES, THE LAW GRANTS THE TESTATOR SOME POWER OVER THE LEGITIME, OVER ITS
FORM, NOT VALUE:

1. Testator can provide that it is to be paid in cash, if he is a parent who, in the interest of his or her family, desires to
keep any agricultural, industrial, or manufacturing enterprise intact (Art. 1080)

2. Testator can prove that the legitime cannot be partitioned or divided, for a maximum of 20 years (Art. 1083)

‣ BALANE: In these two cases, the legitime is NOT impaired, it is merely subjected to a burden

LAW CAN SOMETIMES BURDEN THE LEGITIME


‣ Restrictions on the legitime imposed by law:

1. Family home cannot be partitioned unless there are compelling reasons (Art. 159 of the Family Code)

‣ BALANE: This is not an impairment of the legitime, merely a burden imposed by law
2. The reserva troncal (Art. 891)

‣ BALANE: This is a case where the legitime can be impaired and it is provided for by law. The law itself has provided
for the legitime and it can take it away.

RENUNCIATION AND COMPROMISE OF FUTURE LEGITIME BETWEEN THE DECEDENT AND HIS
COMPULSORY HEIR

Article 905. Every renunciation or compromise as regards a future legitime between the person owing it and his
compulsory heirs is void, and the latter may claim the same upon the death of the former; but they must bring to collation
whatever they may have received by virtue of the renunciation or compromise. (816)

Art. 1347. No contract may be entered into upon future inheritance except in cases expressly authorized by law

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PROHIBITION ON RENUNCIATION OR COMPROMISE OF FUTURE LEGITIME
‣ RULE: EVERY RENUNCIATION OR COMPROMISE AS REGARDS A FUTURE LEGITIME BETWEEN THE DECEDENT AND HIS
COMPULSORY HEIRS IS VOID AND SUCH HEIR MAY CLAIM THE SAME UPON THE DEATH OF THE FORMER

‣ Before the predecessor’s death, the heir’s right is simply inchoate (Art. 777).

‣ Note that as worded, this article applies only to transactions of compromise or renunciation between the predecessor
and the prospective compulsory heir.

‣ Is a transaction between the prospective compulsory heir and another prospective compulsory heir, or between a pro-
spective compulsory heir and a stranger, prohibited?

‣ Yes, by Art. 1347. A contract involving future inheritance is void, regardless of who the parties are.

DUTY OF COLLATION
‣ Any property which the compulsory heir may have gratuitously received from the decedent by virtue of the renunciation or
compromise must be brought to collation

‣ This pertains to donations inter vivos

‣ Such donation will considered an advance on his legitime and must be duly credited.

DETERMINATION OF THE NET HEREDITARY ESTATE

Article 908. To determine the legitime, the value of the property left at the death of the testator shall be considered,
deducting all debts and charges, which shall not include those imposed in the will.
To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to
collation, at the time he made them. (818a)

BALANE: This is a very important provision, like Art. 777

IMPORTANCE OF ART. 908


‣ Articles 888-903 set forth the legitimes of the compulsory heirs, either inheriting alone or in various combinations. Those
articles gave the legitimes in the form of fractions, or proportions, of the decedent’s estate.

‣ Art. 908 makes possible the computation of the absolute amounts of the legitimes by laying down the manner of
computing the net value of the estate (the net hereditary estate), on which the proportions are based.

‣ BALANE: Without Art. 908, you would not know the specific amounts each compulsory heir will get, while the previous
articles define their legitime, meaning the portion of the estate they are entitled to, such amount is based on the net
hereditary estate. You must first determine this amount, before you can get the specific amount of their legitime.

MANNER OF COMPUTING THE NET HEREDITARY ESTATE:


1. INVENTORY OF ALL THE EXISTING ASSETS
‣ This value is the “gross estate” or “gross assets”
‣ This will involve an appraisal/valuation of these existing assets at the time of the decedent’s death.

‣ Note that these assets include only those properties that survive the decedent, those which are not extinguished by
his death.

‣ In other words, only non-personal assets (in relation to Art. 774 and 777)

2. DEDUCT UNPAID DEBTS AND CHARGES


‣ Once you deduct this, you get the “available assets”
‣ The difference between the gross assets and the unpaid obligations will be the available assets.

‣ All unpaid obligations of the decedent should be deducted from the gross assets.

‣ Note that it involves the same rule with assets, only those obligations with monetary value which are not extinguished
by death are considered here.

‣ Thus, those obligations which are purely personal (intuitu personae) are not taken into account

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3. ADD THE VALUE OF ALL DONATIONS INTER VIVOS MADE BY DECEDENT
‣ This determines the “net hereditary estate”
‣ The sum of the available assets and all the donations inter vivos is the net hereditary estate.
‣ To the available assets should be added ALL the inter vivos donations made by the decedent.

‣ The donations inter vivos shall be valued as of the time they were respectively made.

‣ Any increase or decrease in value from the time they were made to the time of the decedent’s death shall be for
the donee’s account, since donation transfers ownership to the donee.

‣ VIZCONDE VS. COURT OF APPEALS 286 SCRA 217 (1998)


‣ Collation Defined
‣ Collation is the act by virtue of which descendants or other forced heirs who intervene in the division of the
inheritance of an ascendant bring into the common mass, the property which they received from him, so that
the division may be made according to law and the will of the testator.

‣ Collation is only required of compulsory heirs succeeding with other compulsory heirs and involves property or
rights received by donation or gratuitous title during the lifetime of the decedent.

‣ The purpose is to attain equality among the compulsory heirs in so far as possible for it is presumed that the
intention of the testator or predecessor in interest in making a donation or gratuitous transfer to a forced heir is
to give him something in advance on account of his share in the estate, and that the predecessor’s will is to
treat all his heirs equally, in the absence of any expression to the contrary.

‣ Collation does not impose any lien on the property or the subject matter of collationable donation. What is
brought to collation is not the property donated itself, but rather the value of such property at the time it was
donated, the rationale being that the donation is a real alienation which conveys ownership upon its
acceptance, hence any increase in value or any deterioration or loss thereof is for the account of the heir or
donee.

‣ Collation covers only properties gratuitously given by the decedent during his lifetime to his compulsory
heirs

TRANSFERS CONSIDERED PART OF THE LEGITIME

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

Article 905. Every renunciation or compromise as regards a future legitime between the person owing it and his
compulsory heirs is void, and the latter may claim the same upon the death of the former; but they must bring to collation
whatever they may have received by virtue of the renunciation or compromise. (816)

Article 909. Donations given to children shall be charged to their legitime. (819a)

Article 910. Donations which an illegitimate child may have received during the lifetime of his father or mother, shall be
charged to his legitime. (847a)

Article 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not
disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the
shares of the other compulsory heirs. (1080a)

Article 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly provided, or if
the donee should repudiate the inheritance, unless the donation should be reduced as inofficious. (1036)

Article 1063. Property left by will is not deemed subject to collation, if the testator has not otherwise provided, but the
legitime shall in any case remain unimpaired. (1037)

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TRANSFERS WHICH ARE CONSIDERED PART OF THE LEGITIME


‣ After you determine how much the legitime each compulsory heir is entitled to, you must then see if it has been satisfied.

‣ How do you determine if it has been satisfied? Know which dispositions or transfers to the compulsory heir are
considered part of the legitime first.

‣ The following received by the compulsory heirs from the decedent, are considered part of their legitime
1. PROPERTY RECEIVED BY INTESTATE SUCCESSION
‣ The legitime is first satisfied from the portion of the estate not disposed of by will.

‣ See Art. 855, this applies if the title by which the testator transmitted property is intestate succession

2. DONATIONS INTER VIVOS


‣ See Art. 905, 909 and 910

‣ Donations inter vivos to a compulsory heir shall be imputed to his legitime. They are considered as an advance
on his legitime.
‣ This rule applies to ALL compulsory heirs.

‣ Note that these two articles omit, inadvertently, ascendants who succeed as compulsory heirs. This rule
applies to them as well.

‣ For obvious reasons (because spouses cannot donate to each other), this rule has no application to a surviving
spouse, except in cases of donations propter nuptias and moderate gifts under Article 87 of the Family Code

‣ EXCEPTION: This rule of imputation to the legitime will not apply if the donor provided otherwise (Art. 1062), in
which case the donation will be imputed to the disposable portion of the estate

3. PROPERTY RECEIVED BY TESTAMENTARY SUCCESSION, IF THE TESTATOR PROVIDES


‣ Generally, testamentary dispositions made by the predecessor to the compulsory heir is NOT subject to collation,
UNLESS the testator provides that it should be considered part of the legitime. (Art. 1063)

TRANSMISSIONS NOT CONSIDERED PART OF THE LEGITIME


‣ The following received by the compulsory heirs from the decedent, are NOT considered advances on their
legitime:
1. Transmissions NOT by gratuitous title
‣ Such as a valid and genuine sale

‣ Remember principle of substitution of values

2. Donations Inter Vivos, if the Testator should expressly provide


‣ If the predecessor gave the compulsory heir a donation inter vivos and provided that it was not to be charged
against the legitime (Art. 1062)

3. Property Received by Testamentary Succession


‣ Generally, testamentary dispositions made by the predecessor to the compulsory heir is not subject to collation,
UNLESS the testator provides that it should be considered part of the legitime. (Art. 1063)

DONATIONS INTER VIVOS TO STRANGERS


‣ A stranger is anyone who does not succeed as a compulsory heir.

‣ He is person who is not a compulsory heir, who may be a sibling, cousin, or a total stranger

‣ Donations inter vivos to strangers are necessarily imputed to the free or disposable portion.

REMEDY OF SATISFACTION OF LEGITIME


‣ If the legitime has not been satisfied, as the dispositions to the compulsory heir is less than what he is entitled to, then the
legitime HAS BEEN IMPAIRED

‣ The compulsory heir has the remedy of filing an action for completion or satisfaction of his legitime (Art. 906)
‣ Art. 907 and 911 implements and provides the procedure for satisfying such legitime

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SATISFACTION OF IMPAIRED LEGITIME; METHOD OF REDUCTION

Article 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on
petition of the same, insofar as they may be inofficious or excessive. (817)

Article 911. After the legitime has been determined in accordance with the three preceding articles, the reduction shall be
made as follows:
(1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary, the devises
or legacies made in the will;
(2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever.
If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer any
reduction until the latter have been applied in full to the payment of the legitime.
(3) If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than that of the
disposable portion, the compulsory heirs may choose between complying with the testamentary provision and
delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose. (820a)

Article 773. If, there being two or more donations, the disposable portion is not sufficient to cover all of them, those of the
more recent date shall be suppressed or reduced with regard to the excess. (656)

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

Article 913. If the heirs or devisees do not choose to avail themselves of the right granted by the preceding article, any
heir or devisee who did not have such right may exercise it; should the latter not make use of it, the property shall be sold
at public auction at the instance of any one of the interested parties. (822)

TESTAMENTARY DISPOSITIONS THAT IMPAIR THE LEGITIME; REMEDY OF REDUCTION (ART. 907)
‣ Normally the legitime is impaired because the testamentary dispositions exceed the free and disposable portion

‣ Art. 907 provides the remedy in this case, it provides that testamentary dispositions that impair or diminish the
legitime of the compulsory heirs shall be REDUCED on petition of the same, insofar as they may be inofficious or
excessive
‣ Art. 907 is based on the same principle expressed in Art. 904, that the testator cannot deprive the compulsory heirs of
their legitime

‣ To allow the testator to make testamentary dispositions that impair the legitime would in effect allow him to deprive
the compulsory heirs of part of their legitime

‣ If the testamentary dispositions exceed the disposable portion, the compulsory heirs may demand their reduction to the
extent that the legitimes have been impaired.

PROCEDURE TO SATISFY AN IMPAIRED LEGITIME; METHOD OF REDUCTION (ART. 911)


‣ While Art. 907 provides the general remedy of reduction in order to satisfy a legitime which has been impaired, Art. 911
provides the complete rule and procedure on how it is made.

‣ Art. 911 implements the principle laid down in Arts. 872, 886, and 904—the inviolability of the legitime. Thus if the
legitimes are impaired, the gratuitous dispositions of the testator (either inter vivos or mortis causa) have to be set
aside or reduced as may be required to cover the legitimes.

‣ It gives an order of priorities to be observed in the reduction of the testator’s gratuitous dispositions

‣ These reductions shall be to the extent required to complete the legitimes, even if in the process the disposition is
reduced to nothing.

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‣ BALANE: You go as far as necessary to satisfy the legitime
‣ Method of Reduction (Order of Preference):
1. REDUCE THE NON-PREFERRED TESTAMENTARY DISPOSITIONS
‣ The first step is to reduce pro rata the non-preferred legacies and devises (Art. 911 [2]), and the testamentary
dispositions (to heirs) (Art. 907).

‣ Among these legacies, devises, and testamentary dispositions there is no preference.

‣ Non-preferred means that the testator did not provide for preference

2. REDUCE THE PREFERRED TESTAMENTARY DISPOSITIONS


‣ This is also pro-rata
‣ Preferred means that the testator has directed that a certain devise or legacy be paid in preference to others, thus,
it shall not suffer any reduction until the latter have been applied in full to the payment of the legitime. (Art. 911,
last paragraph)

3. REDUCE THE DONATIONS INTER VIVOS TO STRANGERS


‣ This is when all the testamentary dispositions have already been reduced to nothing

‣ The last step is to reduce the donations inter vivos made to strangers

‣ Because donations inter vivos made to compulsory heirs are considered advances on their legitimate
‣ The deduction is NOT pro-rata, but according to the inverse order of their dates, meaning you reduce the most
recent first. (Art. 773)

‣ In other words, the oldest is the most preferred

‣ BALANE: The last donation is the first to go, and the first donation is the last to go. Follow the principle of “first
in time, stronger in right”. Law contemplates that the testator prefers the earlier donations.
4. REDUCE THE LEGITIMES OF THE ILLEGITIMATE CHILDREN/DESCENDANTS
‣ Remember that there is one instance where the legitime will NOT be satisfied

‣ This is when there is no free portion because the total legitimes exceed the estate.

‣ This occurs when there is a concurrence of legitimate and illegitimate children/descendants. (Art. 895)

‣ Even if you reduce all the testamentary dispositions and donations to nothing, you cannot satisfy the legitime

‣ The remedy is to reduce pro-rata the legitimes of the illegitimate children/descendants (Art. 895)

METHOD OF REDUCTION OF DEVISES OR LEGACIES OF USUFRUCT/LIFE ANNUITIES/PENSIONS


‣ Observe the following principles:

1. If, upon being capitalized according to actuarial standards, the value of the grant exceeds the free portion (it impairs
the legitime), it has to be reduced, because the legitime cannot be impaired.

2. The testator can impose no usufruct or any other encumbrance on the part that passes as legitime

3. Subject to the two rules just stated, the compulsory heirs may elect between ceding to the devisee/legatee the free
portion (or the proportional part thereof corresponding to the said legacy/devise, in case there are other dispositions),
and complying with the terms of the usufruct or life annuity or pension.

‣ DOLOR V. BISHOP OF JARO, 68 PHIL. 727.

METHOD OF REDUCTION IF THE DEVISE IS INDIVISIBLE REAL PROPERTY (ART. 912 AND 913)
‣ Art. 912 and 913 provides specific rules in cases the devise to be reduced is:

1. Real property, and

2. Indivisible

‣ Rules:
1. If the extent of reduction is less than 1 /2 of the value of the thing, devisee has right to acquire it

2. If extent of reduction is 1/2 or more of the value of the thing, compulsory heir (whose legitime is impaired) has right
to acquire it

3. There should be pecuniary reimbursement to the party who did not get his physical portion of the thing devised.


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‣ This applies in either case

4. If neither party (the compulsory heir/s and the devisee) elects to exercise his right of acquiring such property, any
other heir or devisee, who elects to do so, may acquire the thing and pay the parties (the compulsory heir and
the devisee in question) their respective shares in money

5. If no heir or devisee elects to acquire it, it shall be sold at public auction and the net proceeds accordingly divided
between the parties concerned.

‣ Note: This rule of constructive partition is similar to that in co-ownership (Art. 498) and in partition of the decedent’s
estate (Art. 1086), except that, in these two latter cases, the acquisition by one of the co-owners or co-heirs can be
done only if all the co-owners or co-heirs agree to such acquisition.

FREE AND DISPOSABLE PORTION

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

‣ This is the portion left after satisfying the legitimes of the compulsory heirs

‣ BALANE: Note that this covers not only dispositions by devise or legacies but all modes of testamentary dispositions
‣ This article is simply a restatement of Art. 842, and is therefore unnecessary.

‣ “One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this
Code with regard to the legitime of said heirs"

SECTION 6: DISINHERITANCE

EFFECT OF DISINHERITANCE

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

REQUISITES OF A VALID DISINHERITANCE


1. It must be made in a will (Article 916);

2. It must be for a cause specified by law (Article 916 in relation to Articles 919-921);

3. The will must specify the cause (Articles 916 and 918);

4. It must be unconditional (Manresa)

5. It must be total (Manresa)


6. The cause must be true (Article 918);

7. If the truth of the cause is denied, it must be proved by the proponent (Article 917).

‣ BALANE: The strictness of the requisites indicates the policy of the law. It regards disinheritance with disfavor and will
grant it only with reluctance, because disinheritance results in deprivation of legitime.

EFFECT OF DISINHERITANCE
‣ RULE: THE EFFECT OF DISINHERITANCE IS NOT JUST DEPRIVATION OF THE LEGITIME, BUT TOTAL EXCLUSION OF THE
DISINHERITED HEIR FROM THE INHERITANCE.

‣ Remember that Art. 904 sets forth the rule that the testator cannot deprive the compulsory heirs of the legitime. The
sole exception to this rule is disinheritance.

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‣ Thus, disinheritance is the ONLY instance in which the testator may deprive his compulsory heirs of their
legitime.

‣ Thus, the disinherited heir forfeits:

1. His legitime,

2. His intestate portion, if any, and

3. Any testamentary disposition made in a prior will of the disinheriting testator.

HOW DISINHERITANCE SHOULD BE EFFECTED

Article 916. Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified. (849)

1. Should be made through a will


‣ The will, obviously, must be formally valid and must be admitted to probate.

2. Legal Cause should be specified in the will


‣ The causes are specified in Articles 919 (for descendants), 920 (for ascendants), and 921 (for the surviving spouse).

BURDEN OF PROVING THE CAUSE FOR DISINHERITANCE

Article 917. The burden of proving the truth of the cause for disinheritance shall rest upon the other heirs of the testator, if
the disinherited heir should deny it. (850)

‣ Truth of the cause for disinheritance is not presumed; it must be proved.

‣ All the disinherited heir need do is deny the cause and the burden is thrown upon those who would uphold the
disinheritance.

INEFFECTIVE DISINHERITANCE

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

‣ This article refers to the requisite that the legal cause for disinheritance should be specified and such must be proved to
be true.

‣ If the disinheritance lacks one or other of the requisites mentioned in this article, the heir in question gets his legitime.
As to whether he will also get any part of the intestate portion or not, this depends on whether the testator gave away
the free portion through testamentary dispositions.

‣ If he did, these dispositions are valid and the compulsory heir improperly disinherited gets only his legitime.

‣ If the testator did not, the compulsory heir will be entitled to his corresponding share of the free portion as well.

‣ Note the difference between the effect of ineffective disinheritance and that of preterition. (Article 854).

CAUSES FOR DISINHERITANCE OF CHILDREN OR DESCENDANTS

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Article 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well
as illegitimate:
(1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six
years or more, if the accusation has been found groundless;
(3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or
to change one already made;
(5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or descendant;
(7) When a child or descendant leads a dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil interdiction. (756, 853, 674a)

APPLICABILITY OF ART. 919


‣ This article provides the causes for disinheritance of children or descendants (whether legitimate or illegitimate), as a
compulsory heir

‣ The enumeration is exclusive

‣ Note that the testator contemplated here is the parent or ascendant, while the compulsory heir is the testator’s
children or descendant

GROUNDS FOR DISINHERITANCE OF CHILDREN/DESCENDANTS


1. GUILTY OF ATTEMPT ON THE LIFE OF TESTATOR, HIS SPOUSE, DESCENDANTS, OR ASCENDANTS
‣ The word attempt here is used non- technically and should not be construed to limit the provision to the attempted
stage of the felony.

‣ All stages of commission are included—whether attempted, frustrated, or consummated.

‣ The felony, obviously, must be an intentional one.

‣ Final conviction is required.

2. GROUNDLESS ACCUSATION OF THE TESTATOR OF A CRIME PUNISHABLE BY IMPRISONMENT OF 6 YEARS OR MORE


a. There must be an accusation of a crime the penalty of which is at least 6 years
‣ The word accused here is used generically, and will include filing of the complaint before the prosecutor, or
presenting incriminating evidence against the testator, or even suppressing exculpatory evidence.

‣ The crime of which the testator is accused must carry a penalty of at least six years’ imprisonment

‣ BALANE: This should be “more” than 6 years, because what is contemplated is prision mayor and above.
b. The testator must be acquitted.
c. The accusation must be found to be groundless
‣ The judgment of acquittal must state either that no crime was committed or that the accused did not commit the
crime.

‣ An acquittal on reasonable doubt or prescription will not be a ground for disinheritance.

3. CONVICTION FOR ADULTERY OR CONCUBINAGE WITH TESTATOR’S SPOUSE


‣ Final conviction for adultery or concubinage is required.

4. CAUSES THE TESTATOR TO MAKE OR CHANGE A WILL BY FRAUD, VIOLENCE, INTIMIDATION OR UNDUE INFLUENCE
‣ Covers causing the testator either to make a will or to change one already made

‣ BALANE: On its face, this ground is not that serious compared to the previous grounds, but in testmentary law, this is
very serious, as you are depriving the testator of his testamentary freedom
5. UNJUSTIFIABLY REFUSES TO GIVE SUPPORT THE TESTATOR
‣ The demand must have been unjustifiably refused. Mere refusal is not enough

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‣ Refusal may be justified, such as if the obligor does not have enough resources for all whom he is obliged to support.

‣ Note that the ascendants are only third in the hierarchy of preference among claimants of support (Art. 200, par. 3,
Family Code).

6. SERIOUSLY MALTREATS THE TESTATOR BY WORD OR DEED


‣ This will include a wide range of misdeeds, but it is required that the act of verbal or physical assault be of a
“serious nature”.
‣ BALANE: It should be serious and judged by the present values of society.
‣ No conviction is required; in fact, it is not even required that any criminal case be filed.

‣ Consequently, a physical assault that would not fall under par. 1, could fall under this paragraph.

‣ Note that this is very hard to prove, especially if the verbal or physical assault took place with no witnesses. The other
heirs will have a hard time proving this ground.

7. LEADS A DISHONOURABLE OR DISGRACEFUL LIFE


‣ The operative word here is “lead.”

‣ There must be a habituality or continuity to the conduct to make it fall under this paragraph.

‣ One act would not suffice

‣ BALANE: This should also be judged by the present values of society. The dishonorable or disgraceful conduct or
pattern of behavior need not be sexual in nature, although it may often be that. Surely, a child or descendant whose
livelihood is drug-pushing or smuggling is living a dishonorable and disgraceful life (assuming our society still
recognizes some civilized values).
8. CONVICTION OF A CRIME PENALIZED BY CIVIL INTERDICTION
‣ Final conviction is required.

‣ The accessory penalty of civil interdiction is imposed with the principal penalties of death, reclusion perpetua, and
reclusion temporal. (Articles 40-41, Revised Penal Code).

‣ BALANE: Note that you need “conviction” (criminal) in some cases, thus, it must be proved by proof beyond reasonable
doubt before a competent court. But in other cases, it may be proved by preponderance of evidence.

CAUSES FOR THE DISINHERITANCE OF PARENTS OR ASCENDANTS

Article 920. The following shall be sufficient causes for the disinheritance of parents or ascendants, whether legitimate or
illegitimate:
(1) When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or
attempted against their virtue;
(2) When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(3) When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six
years or more, if the accusation has been found to be false;
(4) When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator
(5) When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or
to change one already made;
(6) The loss of parental authority for causes specified in this Code;
(7) The refusal to support the children or descendants without justifiable cause;
(8) An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them.
(756, 854, 674a)

BALANE: Pars. 2, 3, 4, 5, and 7 are also enumerated under Article 919. But note the variation in the wording of par. 3—The
word here used is false, whereas par. 2 of Art. 919 uses groundless. Par. 2 of Art. 921 also uses false. The change is not
substantive, but merely stylistic.

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APPLICABILITY OF ART. 920
‣ This article provides the causes for disinheritance of parent or ascendants (whether legitimate or illegitimate), as a
compulsory heir

‣ The enumeration is also exclusive

‣ Note that the testator contemplated here is the children or descendant, while the compulsory heir is the testator’s
parent or ascendant

GROUNDS FOR DISINHERITANCE OF PARENTS/ASCENDANTS


1. ABANDONMENT OF CHILDREN
‣ Abandonment here is not restricted to those instances of abandonment penalized by law (Articles 276-277, Revised
Penal Code; Article 59, PD 603), but includes all conduct constituting a repeated or total refusal or failure to care for
the child.

‣ BALANE: This means culpable (intentional) or negligent failure to support


‣ CHUA V. CABANGBANG, T7 SCRA 791
‣ Mere acquiescence—without more—is not sufficient to constitute abandonment. But the record yields a host of
circumstances which, in their totality, unmistakably betray the petitioner’s settled purpose and intention to
completely forego all parental responsibilities and forever relinquish all parental claim in respect to the child.

‣ She continuously shunned the natural and legal obligations which she owed to the child; completely withheld her
presence, her love, her care, and the opportunity to display maternal affection; and totally denied her support and
maintenance. Her silence and inaction have been prolonged to such a point that her abandonment of the child and
her total relinquishment of parental claim over her, can and should be inferred as a matter of law
2. INDUCED THEIR DAUGHTERS TO LIVE A CORRUPT OR IMMORAL LIFE
‣ This ground is basically the same as that given in Art. 231(2) of the Family Code as a ground for suspension or
deprivation of parental authority.

‣ The terms of this provision seem to apply only to daughters.

‣ TOLENTINO: Although the law mentions only ‘daughters', we believe that this should be construed to mean all
female descendants. For instance, X has two granddaughters, who are children of a predeceased child. He leads
one of them to a life of prostitution. Certainly, he has committed such a reprehensible act as would justify his
disinheritance by any of those granddaughters.
‣ BALANE: Shouldn’t sons and other male descendants, and other female descendants be covered as well by this
provision? It was a more innocent world when the present Code was drafted in the late forties. Now, sexual
offenses are committed, apparently with equal frequency, against both males and females. Gender equality cuts
both ways. Note that Art. 231, pars. (2) and (4) of the Family Code make no distinction. They should be included by
virtue of the Equal Protection Clause and Convention on the Rights of the Child
3. ATTEMPT AGAINST THE DAUGHTER’S VIRTUE
‣ Final conviction is NOT required here.
4. GUILTY OF ATTEMPT ON THE LIFE OF TESTATOR, HIS SPOUSE, DESCENDANTS, OR ASCENDANTS
5. FALSE ACCUSATION OF THE TESTATOR OF A CRIME PUNISHABLE BY IMPRISONMENT OF 6 YEARS OR MORE
‣ BALANE: “false” should be understood to be the same as “groundless” in Art. 919, but the latter is the better term
6. CONVICTION FOR ADULTERY OR CONCUBINAGE WITH TESTATOR’S SPOUSE
7. CAUSES THE TESTATOR TO MAKE OR CHANGE A WILL BY FRAUD, VIOLENCE, INTIMIDATION OR UNDUE INFLUENCE
8. CULPABLE LOSS OF PARENTAL AUTHORITY
‣ Obviously, not all causes for loss of parental authority are grounds for disinheritance (such as attainment of the age of
majority).

‣ Only those causes which involve culpability on the part of the parents will provide grounds for disinheritance (Art. 229,
231 and 232 of the Family Code), which are:

a. Sexual abuse

b. Judicial declaration of abandonment of the child

c. Excessively harsh or cruel treatment of the child

d. Giving the child corrupting orders, counsel, or example

e. Compelling the child to beg

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f. Subjecting the child or allowing to be subjected to acts of lasciviousness

‣ Note that there should be a judicial deprivation (a judicial decree) of parental authority based on these grounds
9. UNJUSTIFIABLY REFUSES TO GIVE SUPPORT THE TESTATOR, OR OTHER CHILDREN OR DESCENDANTS
10. ATTEMPT ON THE LIFE OF THE OTHER PARENT, UNLESS THERE IS RECONCILIATION
‣ No conviction is required here (unlike in number 3, where final conviction is required)

‣ The meaning of “attempt” is the same as its meaning in number 3, which is to be used in its non-technical sense.
‣ Reconciliation between the parents removes the right of a child or descendant to disinherit and rescinds a
disinheritance already made.

CAUSES FOR THE DISINHERITANCE OF SURVIVING SPOUSE

Article 921. The following shall be sufficient causes for disinheriting a spouse:
(1) When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or
ascendants;
(2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or
more, and the accusation has been found to be false;
(3) When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or to change
one already made;
(4) When the spouse has given cause for legal separation;
(5) When the spouse has given grounds for the loss of parental authority;
(6) Unjustifiable refusal to support the children or the other spouse. (756, 855, 674a)

Pars. 1, 2, 3, and 6 are also enumerated under Article 919

APPLICABILITY OF ART. 921


‣ This article provides the causes for disinheritance of the surviving spouse, as a compulsory heir

‣ The enumeration is also exclusive

‣ Note that the testator contemplated here is the decedent-spouse, while the compulsory heir is the surviving
spouse of the testator

GROUNDS FOR DISINHERITANCE OF SURVIVING SPOUSE


1. GUILTY OF ATTEMPT ON THE LIFE OF TESTATOR, HIS SPOUSE, DESCENDANTS, OR ASCENDANTS
2. FALSE ACCUSATION OF THE TESTATOR OF A CRIME PUNISHABLE BY IMPRISONMENT OF 6 YEARS OR MORE
3. CAUSES THE TESTATOR TO MAKE OR CHANGE A WILL BY FRAUD, VIOLENCE, INTIMIDATION OR UNDUE INFLUENCE
4. GIVING CAUSE FOR LEGAL SEPARATION
‣ A decree of legal separation is not required.

‣ But note that one of the effects of a decree of legal separation is to exclude the offending spouse from inheriting
from the innocent spouse

‣ Causes for legal separation (Art. 55 of the Family Code)

1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child
of the petitioner;

2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;

3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage
in prostitution, or connivance in such corruption or inducement;

4. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;

5. Drug addiction or habitual alcoholism of the respondent;

6. Lesbianism or homosexuality of the respondent;

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7. Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;

8. Sexual infidelity or perversion;

9. Abandonment of petitioner by respondent without justifiable cause for more than one year.
5. GIVING CAUSE FOR LOSS OF PARENTAL AUTHORITY
‣ Note that this is different from the ground in Art. 920.

‣ Whereas in Art. 920, actual loss of parental authority (a judicial decree) is required, here giving grounds therefor is
sufficient, thus, he need not be judicially deprived.
6. UNJUSTIFIABLY REFUSES TO GIVE SUPPORT THE TESTATOR OR THEIR CHILDREN

SUMMARY OF THE GROUNDS/CAUSES FOR DISINHERITANCE OF COMPULSORY HEIRS

ART. 919 ART. 920 ART. 921

Who is Child or Descendant (legitimate or Parent or Ascendant (legitimate or Surviving Spouse


disinherited? illegitimate) illegitimate)

Common 1. Guilty of attempt on the life of testator, his spouse, descendants, or ascendants
Grounds 2. Groundless/false accusation of the testator of a crime punishable by imprisonment of 6 years or more
3. Causes the testator to make or change a will by fraud, violence, intimidation or undue influence

4. Unjustifiably refuses to give support

5. Conviction for adultery or concubinage with testator’s spouse (Except for Art. 921)

Particular 1. Seriously maltreats the 1. Abandonment of children 1. Giving cause for legal separation
Grounds testator by word or deed 2. Induced their daughters to live a 2. Giving cause for loss of parental
2. Leads a dishonourable or corrupt or immoral life authority
disgraceful life 3. Attempt against the daughter’s virtue
3. Conviction of a crime 4. Culpable loss of parental authority
penalized by civil interdiction 5. Attempt on the life of the other parent,
unless there is reconciliation

SUBSEQUENT RECONCILIATION

Article 922. A subsequent reconciliation between the offender and the offended person deprives the latter of the right to
disinherit, and renders ineffectual any disinheritance that may have been made. (856)

BALANE: Through reconciliation, the law keeps the door open for the disinherited heir to be restored to capacity. This rescinds
the disinheritance previously made. This is akin to reconciliation in legal separation.

HOW RECONCILIATION IS MADE


‣ Reconciliation is either an express pardon extended by the testator to the offending heir or unequivocal conduct of the
testator towards the offending heir which reveals the testator’s intent to forgive the offense.

1. Express Pardon
‣ A general pardon extended by the testator on his deathbed to all who have offended him will not suffice; it must be
a pardon expressly and concretely extended to the offender, who accepts it

2. Unequivocal Conduct
‣ The intent to forgive must be clear.

‣ This is ultimately “a question of fact, which will be resolved, in case of controversy, by the courts

‣ BALANE: There is no definition or required form for reconciliation, it can be oral or in writing, it may be express or implied
from the acts of the parties. However, it must be definitive.

EFFECTS OF RECONCILIATION
1. The disinherited heir is restored to his legitime.

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2. If the disinheriting will did not dispose of the disposable portion, the disinherited heir is entitled to his proportionate
share (in intestacy) if any, of the disposable portion.
3. If the disinheriting will or any subsequent will disposed of the disposable portion (or any part thereof) in favor of
testamentary heirs, legatees, or devisees, such dispositions remain valid.
‣ BALANE: Reconciliation restores the disinherited heir to his capacity to inherit, but this is without prejudice to future
grounds of disinheritance.

RIGHT OF REPRESENTATION IN DISINHERITANCE

Article 923. The children and descendants of the person disinherited shall take his or her place and shall preserve the
rights of compulsory heirs with respect to the legitime; but the disinherited parent shall not have the usufruct or
administration of the property which constitutes the legitime. (857)

Article 972. The right of representation takes place in the direct descending line, but never in the ascending.

Article 1035. If the person excluded from the inheritance by reason of incapacity should be a child or descendant of the
decedent and should have children or descendants, the latter shall acquire his right to the legitime.

FAMILY CODE
Article 225. The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated
common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail,
unless there is a judicial order to the contrary.Where the market value of the property or the annual income of the child
exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine,
but not less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of
the obligations prescribed for general guardians.
A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides, or, if the
child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated.
The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the
performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved.
The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental
authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall
apply. (320a)

Article 226. The property of the unemancipated child earned or acquired with his work or industry or by onerous or
gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter's support and
education, unless the title or transfer provides otherwise.
The right of the parents over the fruits and income of the child's property shall be limited primarily to the child's support
and secondarily to the collective daily needs of the family. (321a, 323a)

WHO IS ENTITLED TO THE RIGHT OF REPRESENTATION


‣ The right of representation is granted only to the children/descendants of disinherited children/descendants.
‣ Thus, a disinherited child/descendant will be represented by his children or other descendants.

‣ However, if the heir disinherited is a parent/ascendant or spouse, the children or descendants of the disinherited heir
do not have any right of representation.

‣ BALANE: Art. 923 is carelessly worded. See Art. 972 and 1035 for correct wording. Representation takes place in favour
of the child or descendant of the disinherited heir (who himself is a child or descendant of the decedent).

EXTENT OF REPRESENTATION
‣ The representative takes the place of the disinherited heir not only with respect to the legitime, but also to any
intestate portion that the disinherited heir would have inherited.
‣ Representation, therefore, occurs in compulsory and intestate succession, but NOT in testamentary succession.


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IF THE DISINHERITED HEIR IS A PARENT
‣ If the disinherited heir is a parent, he/she shall NOT have the usufruct or administration of the property which
constitutes the legitime. (Art. 923, last portion)
‣ This presupposes that it is the child who inherits from the decedent, by virtue of representation, because his or her
parent was disinherited

‣ BALANE: This has been amended, read this together with Art. 225 and 226 of the Family Code, the right of the parents
now has a right over the fruits and income of the child’s property (which was acquired by the child by right of
representation, by virtue of the disinheritance of such parent) BUT such shall be limited primarily to the child’s support
and secondarily to the collective daily needs of the family

SECTION 7: LEGACIES AND DEVISES

DEFINITION OF LEGACIES AND DEVISES

Article 924. All things and rights which are within the commerce of man be bequeathed or devised.

Article 782. An heir is a person called to the succession either by the provision of a will or by operation of law. Devisees
and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will. (n)

‣ Legacies and devises are codally defined in Art. 782, par. 2, but the definitions by the Spanish Code and Castan are
better:

1. Legacy
‣ Testamentary disposition of personal property by particular title

‣ Testamentary disposition of specific or generic personal property

2. Devise
‣ Testamentary disposition of real property by particular title.

‣ Testamentary disposition of specific or generic real property.

‣ Distinguish this from a testamentary disposition to an “heir”


1. Heir
‣ One who succeeds to the whole or an aliquot (fractional) part of the inheritance

‣ Successor by universal title or by universal succession

‣ Ex: X gives Y the whole of his estate, or 1/4 of his estate, in either case, Y is considered as an heir

2. Devisee/Legatee
‣ Those who succeed to definite, specific and individual properties

‣ Successor by specific title or by particular succession

‣ Ex: X gives Y his house, or painting, etc.

‣ This distinction is only important he effects of preterition.

‣ What can be devised or bequeathed?


‣ Anything within the commerce of man.

‣ BALANE: Anything which is appropriable and alienable is within the commerce of man, fungible, indivisible,
divisible, real, personal, incorporeal, etc.
‣ It is not required that the thing devised or bequeathed belong to the testator.

TO WHOM THE LEGACY/DEVISE IS CHARGED

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Article 925. A testator may charge with legacies and devises not only his compulsory heirs but also the legatees and
devisees.
The latter shall be liable for the charge only to the extent of the value of the legacy or the devise received by them. The
compulsory heirs shall not be liable for the charge beyond the amount of the free portion given them. (858a)

Article 926. When the testator charges one of the heirs with a legacy or devise, he alone shall be bound.
Should he not charge anyone in particular, all shall be liable in the same proportion in which they may inherit. (859)

‣ RULE: GENERALLT, THE ESTATE IS CHARGED WITH THE LEGACY OR DEVISE


‣ The executor or administrator is charged with complying with the obligation to deliver it accordingly

‣ BALANE: The liability for the legacy/devisee is on the estate, this is called a direct legacy/devise
‣ EXCEPTION: THE TESTATOR MAY IMPOSE THE BURDEN ON A TESTAMENTARY HEIR OR TO ANOTHER LEGATEE OR DEVISEE,
BUT NOT THE COMPULSORY HEIR

‣ In this case, the testamentary disposition will be subject to a mode (modal disposition). As far as the heir, legatee,
or devisee charged is concerned, it will be a mode (Art. 882)
‣ BALANE: This is not common. This is also called an indirect or subsidiary legacy/devise
‣ If he does so, then the heir, legatee, or devisee charged will, if he accepts the disposition in his favor, be bound to
deliver the legacy or devise to the person specified.

‣ Extent of liability of heir, devisee, or legatee in case of subsidiary legacies or devises is the value of the benefit
received from the testator.

‣ Ex: “I give A 1/4 of my estate but I impose upon him the obligation to give B a car." If A wants to accept the 1/4, he
will have to give a car to B.”

‣ BALANE: The wording of Art. 925 is erroneous. A compulsory heir as such cannot be burdened or made liable with a
legacy or devise because that would impair his legitime. Only a testamentary heir can be so burdened and charged.
The devise or legacy can only be charged to the free portion.

SOLIDARY LIABILITY OF CO-HEIRS TO DEVISEE/LEGATEES

Article 927. If two or more heirs take possession of the estate, they shall be solidarily liable for the loss or destruction of a
thing devised or bequeathed, even though only one of them should have been negligent. (n)

‣ The liability imposed by this article is based on malice, fault or negligence.

‣ This liability will also attach to the executor or administrator in the proper cases.

‣ BALANE: This is just the principle of solidary liability of joint-tortfeasors. This is one of the cases where the law imposes
solidarity. In fact, this applies not just to the heirs, but to all persons, under Tort Law.

WARRANTY IN CASE OF EVICTION

Article 928. The heir who is bound to deliver the legacy or devise shall be liable in case of eviction, if the thing is
indeterminate and is indicated only by its kind. (860)

‣ Generally, the estate is liable in case of eviction

‣ EXCEPTION: In case of a subsidiary legacy or devise—the heir, legatee, or devisee charged.

‣ Warranty in case of eviction ONLY applies to generic legacy/devise, NOT specific/determinate

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LEGACY/DEVISE OF A THING OWNED IN PART BY THE TESTATOR; LEGACY/DEVISE OF A THING
OWNED BY ANOTHER

Article 929. If the testator, heir, or legatee owns only a part of, or an interest in the thing bequeathed, the legacy or devise
shall be understood limited to such part or interest, unless the testator expressly declares that he gives the thing in its
entirety. (864a)

Article 930. The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that
the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the disposition shall take effect. (862a)

Article 931. If the testator orders that a thing belonging to another be acquired in order that it be given to a legatee or
devisee, the heir upon whom the obligation is imposed or the estate must acquire it and give the same to the legatee or
devisee; but if the owner of the thing refuses to alienate the same, or demands an excessive price therefor, the heir or the
estate shall only be obliged to give the just value of the thing. (861a)

Article 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property
disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n)

‣ RULE: GENERALLY, IF THE LEGACY/DEVISE OF A THING ONLY OWNED IN PART BY THE TESTATOR WHAT IS CONVEYED IS ONLY
THE INTEREST OR PART OWNED BY THE TESTATOR. (ART. 929)

‣ EXCEPTION: IF TESTATOR PROVIDES OTHERWISE, HE CAN EITHER CONVEY:


1. More than he owns (Art. 930, 931)
‣ In this case, the estate should try to acquire the part or interest owned by other parties.

‣ If the other parties are unwilling to alienate (or the other parties are asking for an unreasonable price), the
estate should give the legatee/devisee the monetary equivalent (by analogy with Article 931)

‣ The validity of the disposition as to the part or interest not owned by the testator will be determined by the
provisions of Articles 930 and 931 (pertaining to devises/Legacies of a Thing Owned by Another)

2. Less than he owns (Art. 794)


‣ Ex: “Legal ownership to A, but beneficial ownership to B”

RULES ON LEGACIES/DEVISES IN CASE THE THING IS OWNED BY ANOTHER (ART. 930, 931)
BALANE: There are two requirements in case a devise/legacy of a thing owned by another:
1. Testator must expressly order the acquisition of the thing
2. The testator must not have made a mistake, he must know that the property belonged to him

1. IF THE TESTATOR ORDERED THE ACQUISITION OF THE THING


‣ The order should be complied with.

‣ If the owner is unwilling to part with the thing, the legatee/devisee should be given the monetary equivalent.

2. IF THE TESTATOR ERRONEOUSLY BELIEVED THAT THE THING BELONGED TO HIM


‣ Legacy/devise void.

‣ EXCEPTION: If, subsequent to the making of the disposition, the thing is acquired by the testator onerously or
gratuitously, the disposition is validated.

‣ BALANE: Th testator made a mistake, maybe he was rich and thought he owned the proeprty he made subject to a
testamentary disposition. Of course, it is void, except if he subsequent (after the making of the will) acquires such
property
3. IF THE TESTATOR KNEW THAT THE THING DID NOT BELONG TO HIM BUT DID NOT ORDER ITS ACQUISITION

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‣ BALANE: This is a middle-ground, the Code is silent on this. The most rational solution seems to be that such a
disposition should be considered valid, because:
a. The fact that the testator, with knowledge of another person’s ownership, bequeathed the thing, implies an order to
acquire;
b. At worst, there is a doubt, and doubts should be resolved in favor of testacy (Articles 788, 791)

LEGACY/DEVISE OF A THING ALREADY OWNED OR SUBSEQUENTLY ACQUIRED BY THE


DEVISEE/LEGATEE

Article 932. The legacy or devise of a thing which at the time of the execution of the will already belonged to the legatee
or devisee shall be ineffective, even though another person may have some interest therein.

Article 933. If the thing bequeathed belonged to the legatee or devisee at the time of the execution of the will, the legacy
or devise shall be without effect, even though it may have subsequently alienated by him.
If the legatee or devisee acquires it gratuitously after such time, he can claim nothing by virtue of the legacy or devise;
but if it has been acquired by onerous title he can demand reimbursement from the heir or the estate. (878a)

RULES IN CASE THE LEGACY/DEVISE IS ALREADY OWNED OR SUBSEQUENTLY ACQUIRED BY THE DEVISEE/LEGATEE
1. IF THE THING ALREADY BELONGED TO THE LEGATEE/DEVISEE AT THE TIME OF THE EXECUTION OF THE WILL
‣ Legacy/ devise void.

‣ It is NOT validated by an alienation by the legatee/devisee subsequent to the making of the will, unless the acquirer is
the testator himself

‣ NOTE: Arts. 932, par. 1 and 933, par. 1 say essentially the same thing and should be merged.
2. IF THE THING WAS OWNED BY ANOTHER PERSON AT THE TIME OF THE MAKING OF THE WILL AND ACQUIRED THEREAFTER BY
THE LEGATEE/DEVISEE

a. If the testator erroneously believed that it belonged to him


‣ Legacy/devise void (Art. 930)

b. If the testator was not in error (testator knew that it did not belong to him)
i. If the thing was acquired onerously by legatee/devisee
‣ Legatee/devisee is entitled to reimbursement

‣ BALANE: This is for the price the legatee/devisee paid


ii. If the thing was acquired gratuitously by legatee/devisee
‣ Nothing more is due

‣ BALANE: Devisee/legatee is not entitled to anything anymore since the purpose of the testator has already
been achieved
3. IF THE THING WAS OWNED BY THE TESTATOR AT THE TIME OF THE MAKING OF THE WILL AND ACQUIRED THEREAFTER FROM
HIM BY THE LEGATEE/DEVISEE

‣ Articles 932 and 933 are silent on this, but Article 957, par. 2 can be applied and the legacy/devise should be deemed
revoked.

‣ BALANE: Not entitled to reimbursement, because when the testator sold it to the devisee/legatee, this revokes the
legacy/devisee. This is one of the modes of revocation (revocation by operation of law, by alienation of the thing)

LEGACY/DEVISE TO REMOVE AN ENCUMBRANCE

Article 932. If the testator expressly orders that the thing be freed from such interest or encumbrance, the legacy or
devise shall be valid to that extent. (866a)

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Article 934. If the testator should bequeath or devise something pledged or mortgaged to secure a recoverable debt
before the execution of the will, the estate is obliged to pay the debt, unless the contrary intention appears.
The same rule applies when the thing is pledged or mortgaged after the execution of the will.
Any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes with it to the legatee or
devisee. (867a)

Article 946. If the thing bequeathed should be subject to a usufruct, the legatee or devisee shall respect such right until it
is legally extinguished. (868a)

RULE IN CASE THE THING SUBJECT OF A DEVISE/LEGACY IS ENCUMBERED


1. LEGACY/DEVISE TO REMOVE AN ENCUMBRANCE OVER A THING BELONGING TO THE LEGATEE/DEVISEE (ARTICLE 932, PAR. 2)
‣ Valid, if the encumbrance can be removed for a consideration.
‣ BALANE: The encumbrance can only be removed by money. Some encumbrances such as easement of right of way
cannot be validly subject to devise/legacy because it cannot be removed. The removal of the encumbrance is the
subject-matter of the devisee/legacy
2. LEGACY/DEVISE OF A THING PLEDGED OR MORTGAGED (ART. 934)
‣ The encumbrance must be removed by paying the debt, unless the testator intended otherwise
‣ BALANE: This is a legacy/devisee of something owned by the testator which is already subject to an outstanding
encumbrance (pledge or mortgage). In this case, the estate has to pay the debt to clear of the pledge/mortgage,
unless the testator expressly provides that the devisee/legatee must pay the debt. But remember, this must be a
pledge, mortage, or an antichresis. This will NOT apply if it was an easement of right of way or usufruct
3. A CHARGE OTHER THAN A PLEDGE OR MORTGAGE, SUCH AS A USUFRUCT OR EASEMENT (ART. 934, PAR. 3 & ART. 946)
‣ Passes to the legatee or devisee together with the thing
‣ The legatee or devisee should respect such right until it is legally extinguished.

LEGACY OF A CREDIT OR REMISSION

Article 935. The legacy of a credit against a third person or of the remission or release of a debt of the legatee shall be
effective only as regards that part of the credit or debt existing at the time of the death of the testator.
In the first case, the estate shall comply with the legacy by assigning to the legatee all rights of action it may have against
the debtor. In the second case, by giving the legatee an acquittance, should he request one.
In both cases, the legacy shall comprise all interests on the credit or debt which may be due the testator at the time of his
death. (870a)

Article 936. The legacy referred to in the preceding article shall lapse if the testator, after having made it, should bring an
action against the debtor for the payment of his debt, even if such payment should not have been effected at the time of
his death.
The legacy to the debtor of the thing pledged by him is understood to discharge only the right of pledge. (871)

Article 937. A generic legacy of release or remission of debts comprises those existing at the time of the execution of the
will, but not subsequent ones. (872)

APPLICABILITY OF ART. 935 TO 937


‣ These involve legacies of credit or remission

1. LEGACY OF CREDIT
‣ Takes place when the testator bequeaths to another a credit against a third person.

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‣ In effect, it is a novation of the credit by the subrogation of the legatee in the place of the original creditor.

‣ Example: "I give to A all the debts B owes me."

2. LEGACY OF REMISSION
‣ A testamentary disposition of a debt in favor of the debtor.

‣ The legacy is valid only to the extent of the amount of the credit existing at the time of the testator's death.

‣ In effect, the debt is extinguished.

‣ BALANE: Because this will be extinguished by meger/confusion. The legatee will be his own creditor.
‣ Example: "I give to A as legacy his debt to me."

RULES IN CASE OF LEGACY OF CREDIT OR REMISSION


1. Applies only to amount still unpaid at the time of testator’s death (Article 935)

‣ Example: “A owes B P1,000. B makes a will giving as legacy to A the debt of A. After the will is made, A pays B 500.
How much is the legacy? P500.”

2. Revoked if testator subsequently sues the debtor for collection (Article 936)

‣ The mere filing of an action to collect ipso facto revokes the legacy.

‣ The testator need not prosecute it, even if it is dismissed, the legacy is still revoked. Mere filing revokes it

‣ It must be a legal or judicial demand

‣ Example: “A bequeaths the credit he has against B to B. After making the will, A sues B for collection. A dies while the
suit is pending. Does B have a right to the credit? No. The filing of the action revoked the legacy.”

3. If generic, applies only to those existing at the time of the execution of the will. (Articles 937 and 793), unless
otherwise provided.
‣ Example: “"I give to A all the credits I have against B." When the will was made, B had 3 debts. After the will was
made, B incurs 2 more debts. Which ones can A claim? Only the first 3, except when the testator provides otherwise.”

‣ BALANE: As worded, Art. 937 only applies to legacy of remission, but by analogy it can apply to legacies of credit. This
is in accordance to the principle in Art. 793 (on rules of interpretation of testamentary dispositions)

LEGACY/DEVISE TO A CREDITOR; TESTAMENTARY INSTRUCTION TO PAY A DEBT

Article 938. A legacy or devise made to a creditor shall not be applied to his credit, unless the testator so expressly
declares.
In the latter case, the creditor shall have the right to collect the excess, if any, of the credit or of the legacy or devise.
(837a)

Article 939. If the testator orders the payment of what he believes he owes but does not in fact owe, the disposition shall
be considered as not written. If as regards a specified debt more than the amount thereof is ordered paid, the excess is
not due, unless a contrary intention appears.
The foregoing provisions are without prejudice to the fulfillment of natural obligations. (n)

LEGACY/DEVISE TO A CREDITOR
‣ RULE: GENERALLY, IT WILL BE TREATED LIKE ANY OTHER LEGACY/DEVISE AND THEREFORE WILL NOT BE IMPUTED TO THE
DEBT.

‣ EXCEPTION: IT WILL BE IMPUTED TO THE DEBT IF THE TESTATOR SO PROVIDES, AND IF THE DEBT EXCEEDS THE LEGACY/
DEVISE, THE EXCESS MAY BE DEMANDED AS AN OBLIGATION OF THE ESTATE.

‣ BALANE: Note that if the testator does provide that the legacy/devise should be imputed to the debt and the
amount of the debt is equal to or more than the value of the legacy/devise it would be folly for the creditor to
accept the “benefit.” He will be much better off renouncing the legacy/devise and filing a claim for the credit.

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TESTAMENTARY INSTRUCTION TO PAY A DEBT
1. TESTAMENTARY INSTRUCTION TO PAY A DEBT
‣ This is not a testamentary disposition, but merely a direction to discharge a civil obligation.

‣ BALANE: This is not really a legacy, the testator is just ordering the payment of a debt.
2. INSTRUCTION TO PAY A NON-EXISTING DEBT
‣ This should be disregarded, because this would be solutio indebiti
‣ BALANE: This is also not a legacy, just a simple mistake.
‣ But note that a non-existing debt may be a debt which has prescribed, in that case, the testator may validly make a
legacy to pay such prescribed debt, based on his moral/natural obligation.
3. INSTRUCTION TO PAY MORE THAN WHAT IS DUE
‣ Effective only as to what is due, unless the bigger amount specified constitutes a natural obligation (Articles
1423-1430).

ALTERNATIVE LEGACIES

Article 940. In alternative legacies or devises, the choice is presumed to be left to the heir upon whom the obligation to
give the legacy or devise may be imposed, or the executor or administrator of the estate if no particular heir is so obliged.
If the heir, legatee or devisee, who may have been given the choice, dies before making it, this right shall pass to the
respective heirs.
Once made, the choice is irrevocable.
In the alternative legacies or devises, except as herein provided, the provisions of this Code regulating obligations of the
same kind shall be observed, save such modifications as may appear from the intention expressed by the testator. (874a)

APPLICABILITY OF ART. 940


‣ This involves Alternative Legacies which are those which provide that, among several things mentioned, only one is to be
given.

‣ BALANE: This is an “either/or” thing.

RULES IN CASE OF ALTERNATIVE LEGACIES


‣ BALANE: The rules on alternative obligations (Art. 1199-1206) apply suppletorily, but really the rules are similar
1. WHO HAS THE RIGHT OF CHOICE?
a. If direct legacy/devise
‣ The estate, through the executor or administrator

‣ This is in accordance under the rules on alternative obligations, the debtor (the estate in this case) has the right of
choice

b. If subsidiary legacy/devise
‣ The heir, legatee, or devisee charged

‣ BALANE: These parties are, analogously, in the position of the debtor (Article 1200).
‣ EXCEPTION: The legatee/devisee (or any other person), if the testator so provides.
2. IF THE PERSON WHO IS TO CHOOSE DIES BEFORE CHOICE IS MADE
a. If the choice belonged to executor or administrator
‣ The right is transmitted to his successor in office.

b. If the choice belongs to an heir, legatee, or devisee


‣ The right is transmitted to his own heirs.

3. CHOICE IS IRREVOCABLE

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GENERIC LEGACIES AND DEVISES

Article 941. A legacy of generic personal property shall be valid even if there be no things of the same kind in the estate.
A devise of indeterminate real property shall be valid only if there be immovable property of its kind in the estate.
The right of choice shall belong to the executor or administrator who shall comply with the legacy by the delivery of a
thing which is neither of inferior nor of superior quality. (875a)

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

Article 943. If the heir, legatee or devisee cannot make the choice, in case it has been granted him, his right shall pass to
his heirs; but a choice once made shall be irrevocable. (877a)

Article 1246. When the obligation consists in the delivery of an indeterminate or generic thing, whose quality and
circumstances have not been stated, the creditor cannot demand a thing of superior quality. Neither can the debtor
deliver a thing of inferior quality. The purpose of the obligation and other circumstances shall be taken into consideration.
(1167a)

APPLICABILITY OF ART. 941-943


‣ These articles pertain to Generic Legacies and Devises

‣ BALANE: The rules on generic legacies are different with generic devises. Rule is stricter in devises rather than legacies
because this is based in Roman Law, before, real property is much highly regarded. But now, no valid reason for this,
because the distinction of the value of real and personal properties is really inexistent. Most people would even prefer
personal property, as it is much easier to transfer and dispose.

RULES IN CASE OF GENERIC LEGACIES AND DEVISES


1. VALIDITY (ART. 941)
a. Generic Legacies
‣ Valid even if no such movables exist in the testator’s estate upon his death.

‣ The estate will simply have to acquire what is given by legacy.

‣ Ex: “I give to A a patek watch”

b. Generic Devise
‣ Valid only if there exists such an immovable in the testator’s estate at the time of his death.

‣ What if Limited Generic Legacy/Devise?


‣ Valid, subject to same rules of choice

‣ Ex: “I give to A one of my watches, or one of my residential houses

2. RIGHT OF CHOICE (ART. 942, 943)


‣ Generally, the executor or administrator, acting for the estate has the right to choose.
‣ But he must give neither inferior nor superior quality.

‣ EXCEPTION: If the testator gives the right of choice to the legatee/devisee, or to the heirs on whom the obligation
to give the benefit is imposed (in a subsidiary legacy or devise).
‣ The choice must be limited to something which is neither superior nor inferior in quality.
‣ This rule applies whether the choice belongs to the executor/administrator or the legatee/devisee

‣ See Art. 1246

‣ Ex: If the legacy is a patek watch, don’t get the high end watch full of diamonds, nor a fake one.
‣ The choice is irrevocable, once made.
‣ Transmissibility of right to choose:

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a. If the choice belongs to the executor/administrator and he dies before making the choice
‣ Right is transmitted to his successor in the position.

b. If the choice belongs to the legatee/devisee and he dies before making the choice
‣ Right passes to his heirs.

LEGACY FOR EDUCATION AND SUPPORT

Article 944. A legacy for education lasts until the legatee is of age, or beyond the age of majority in order that the legatee
may finish some professional, vocational or general course, provided he pursues his course diligently.
A legacy for support lasts during the lifetime of the legatee, if the testator has not otherwise provided.
If the testator has not fixed the amount of such legacies, it shall be fixed in accordance with the social standing and the
circumstances of the legatee and the value of the estate.
If the testator or during his lifetime used to give the legatee a certain sum of money or other things by way of support, the
same amount shall be deemed bequeathed, unless it be markedly disproportionate to the value of the estate. (879a)

RULES ON LEGACIES FOR EDUCATION AND SUPPORT

LEGACY FOR EDUCATION LEGACY FOR SUPPORT

Duration Age of majority (18) or the completion The period provided for the testator, if there is none, then the legatee’s
of a professional, vocational, or lifetime
general course, whichever comes
later.

(In the latter instance, only if the


legatee pursues his studies diligently.)

Amount In the order of preference:


In the order of preference:

1. That fixed by the testator


1. That fixed by the testator.

2. That which is proper, as 2. That which the testator during his lifetime used to give the legatee by
determined by two variables:
way of support, unless markedly disproportionate to the value of the
disposable portion.

a. The social standing and


circumstances of the 3. That which is reasonable, on the basis of two variables:

legatee, and

a. The social standing and circumstances of the legatee, and

b. The value of the


b. The value of the disposable portion of the estate.

disposable portion of the


estate. (But now the variables under the Family Code, are the needs of the person to
be supported and the capacity of the person giving the support)

LEGACY OF A PERIODICAL PENSION

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

‣ Demandability—upon the testator’s death, and the succeeding ones at the beginning of the period without duty to
reimburse should the legatee die before the lapse of the period.
‣ BALANE: This is basically the same as support. Don't take the “upon the testator’s death” literally. This should be
harmonized with the rules on the settlement of estates, the debts should first be paid before any testamentary grants can
be complied with (unless the legatee files a bond under Rule 90, Section 1 of the Rules of Court). However, should the
legacy prove not inofficious, the date of effectivity shall retroact to the decedent’s death.

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‣ Example: “Testator dies on March 1, 2015 He has a will giving A a monthly pension of P1,000. If we follow Art. 945
literally, A can compel the estate to give him his pension from March 1, 2015. In reality, A has to wait. The estate
should be settled first (will probated, payment of debts, determine if legacy is effectual, etc.) After settlement of the
estate, A can demand his legacy and its effectivity will retroact to March 1, 2015.”

DEMANDABILITY, OWNERSHIP, AND FRUITS OF LEGACIES/ DEVISES

Article 947. The legatee or devisee acquires a right to the pure and simple legacies or devises from the death of the
testator, and transmits it to his heirs. (881a)

Article 948. If the legacy or devise is of a specific and determinate thing pertaining to the testator, the legatee or devisee
acquires the ownership thereof upon the death of the testator, as well as any growing fruits, or unborn offspring of
animals, or uncollected income; but not the income which was due and unpaid before the latter's death.
From the moment of the testator's death, the thing bequeathed shall be at the risk of the legatee or devisee, who shall,
therefore, bear its loss or deterioration, and shall be benefited by its increase or improvement, without prejudice to the
responsibility of the executor or administrator. (882a)

Article 949. If the bequest should not be of a specific and determinate thing, but is generic or of quantity, its fruits and
interests from the time of the death of the testator shall pertain to the legatee or devisee if the testator has expressly so
ordered.

Article 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights and
transmitting them to his heirs even before the arrival of the term. (799a)

Article 1187. The effects of a conditional obligation to give, once the condition has been fulfilled, shall retroact to the day
of the constitution of the obligation. Nevertheless, when the obligation imposes reciprocal prestations upon the parties,
the fruits and interests during the pendency of the condition shall be deemed to have been mutually compensated. If the
obligation is unilateral, the debtor shall appropriate the fruits and interests received, unless from the nature and
circumstances of the obligation it should be inferred that the intention of the person constituting the same was different.
In obligations to do and not to do, the courts shall determine, in each case, the retroactive effect of the condition that has
been complied with. (1120)

Article 885. The designation of the day or time when the effects of the institution of an heir shall commence or cease shall
be valid. In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its
expiration. But in the first case he shall not enter into possession of the property until after having given sufficient
security, with the intervention of the instituted heir. (805)

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

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RULES ON DEMANDABILITY, OWNERSHIP, AND FRUITS OF LEGACIES/ DEVISES

DEMANDABILITY WHEN OWNERSHIP VESTS RIGHT TO THE FRUITS

1. PURE AND Upon testator’s Upon testator’s death Upon the testator’s death (Article 948)
DETERMINATE death

2. PURE AND 1. If acquired from estate:


Upon determination, unless testator provides otherwise
GENERIC (Article 949)
‣ Upon testators death

2. If acquired from a third


person:

‣ Upon acquisition

3. WITH A Upon the arrival of Upon arrival of the term, but Upon the arrival of the term (implied from Article 885)

SUSPENSIVE the term the right to it vests upon the


Although this article does not explicitly so declare, the
TERM testator’s death (Art. 878)
descendants of illegitimate children shall inherit per
capita if all the illegitimate children renounce. If these
descendants can inherit per stirpes, they can, in proper
cases, inherit per capita.

4. WITH A Upon the Upon the testator’s death, if Upon the happening of the condition, unless the
SUSPENSIVE happening of the the condition is fulfilled (Article testator provides otherwise (Article 884, in relation to
CONDITION condition 1187) Art. 1187).

RULES OF PREFERENCE IN DEVISE/LEGACIES

Article 950. If the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in the
following order:
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the testator to be preferential;
(3) Legacies for support;
(4) Legacies for education;
(5) Legacies or devises of a specific, determinate thing which forms a part of the estate;
(6) All others pro rata. (887a)

Article 911. After the legitime has been determined in accordance with the three preceding articles, the reduction shall be
made asfollows:
(1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary, the devises
or legacies made in the will;
(2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever.
If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer any
reduction until the latter have been applied in full to the payment of the legitime.
(3) If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than that of the
disposable portion, the compulsory heirs may choose between complying with the testamentary provision and
delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose. (820a)

‣ Art. 950 lays down an order of preference among legacies and devises in case the estate is not sufficient for all of
them.
‣ Art. 950 conflicts Art. 911
‣ Art. 911 also contains a rule for reduction of legacies and devises and the order of preference there is different

‣ This simply provides that all the non-preferred legacies/devises will be reduced pro rata, and the preferred legacies/
devises are reduced last.

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‣ BALANE: All commentators are in agreement of this reconciliation between the two articles: Each article should be given
its own area of applicability

ART. 950 ART. 911

When Applicable This will apply if the reason for the reduction is NOT This will apply if reductions have to be made because
the impairment of legitimes the legitimes have been impaired

Reasons other than impairment of legitimes, such as: *If the legacies/devises have exceeded the disposable
portion.
1. If there are no legitimes because there are no
compulsory heirs

2. If the legitimes have already been satisfied


through donations inter vivos.

Order of Preference Reduce in the following order (#1 first, #6 last):


Reduce in the following order:

1. All others pro rata


1. Reduce non-preferred devises and legacies first,
pro-rata
2. Legacies or devises of a specific, determinate
thing which forms a part of the estate
2. Reduce preferred devises and legacies
3. Legacies for education

4. Legacies for support

5. Legacies or devises declared by the testator to


be preferential

6. Remuneratory legacies or devises

OBLIGATION TO DELIVER THE ACCESSIONS AND ACCESSORIES

Article 951. The thing bequeathed shall be delivered with all its accessories and accessories and in the condition in which
it may be upon the death of the testator. (883a)

Article 1166. The obligation to give a determinate thing includes that of delivering all its accessions and accessories, even
though they may not have been mentioned. (1097a)

‣ The obligation to deliver the accessions and accessories exists even if the testator does not explicitly provide for it.

‣ BALANE: This is only limited to determinate or specific legacies, NOT to generic ones. Same rule with Art. 1166
‣ The crucial time is the testator’s death, because that is when successional rights vest (Art. 777). That is why the thing
must be delivered in the condition in which it is at that time.

OBLIGATION TO DELIVER THE THING ITSELF OR CASH; EXPENSES OF DELIVERY

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

Article 1244. The debtor of a thing cannot compel the creditor to receive a different one, although the latter may be of the
same value as, or more valuable than that which is due. In obligations to do or not to do, an act or forbearance cannot be
substituted by another act or forbearance against the obligee's will. (1166a)

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

‣ This article conforms to the rule of identity in the performance of obligations in Art. 1244

‣ Devisee/Legatee cannot immediately take possession (Art. 953)

‣ Although the efficacy of a legacy or devise vests upon the testator’s death, actual delivery does not take place at that
time. As already pointed out, debts first have to be paid, then legitimes have to be determined, and the testamentary
dispositions (including legacies and devises) computed lest they impair the legitimes.

‣ It is only after these steps have been taken that the beneficiaries of the will can take possession.

ACCEPTANCE AND REPUDIATION OF LEGACIES/DEVISES

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

Article 955. The legatee or devisee of two legacies or devises, one of which is onerous, cannot renounce the onerous one
and accept the other. If both are onerous or gratuitous, he shall be free to accept or renounce both, or to renounce either.
But if the testator intended that the two legacies or devises should be inseparable from each other, the legatee or devisee
must either accept or renounce both.
Any compulsory heir who is at the same time a legatee or devisee may waive the inheritance and accept the legacy or
devise, or renounce the latter and accept the former, or waive or accept both. (890a)

Article 1055. If a person, who is called to the same inheritance as an heir by will and ab intestato, repudiates the
inheritance in his capacity as a testamentary heir, he is understood to have repudiated it in both capacities.
Should he repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he may still accept it in the
latter capacity. (1009)

RULES ON ACCEPTANCE AND REPUDIATION OF LEGACIES/DEVISES


‣ BALANE: We have already seen some of these rules in acceptance or renunciation of the inheritance
1. ACCEPTANCE MAY BE TOTAL OR PARTIAL
‣ This is implied from Article 954, par. 1

‣ EXCEPTION: If the legacy/devise is partly onerous and partly gratuitous, the recipient cannot accept the gratuitous
part and renounce the onerous part (Article 954, par. 1).

‣ Any other combination however is permitted.

2. IN CASE THE LEGATEE/DEVISEE DIES BEFORE ACCEPTING OR RENOUNCING


‣ If the legatee/devisee dies before accepting or renouncing, his heirs shall exercise such right as to their pro-indiviso
share, and in the same manner as outlined above.

3. IN CASE OF TWO LEGACIES/DEVISES TO THE SAME RECIPIENT


a. If both gratuitous or both onerous

‣ The recipient may accept or renounce either or both.

b. If one gratuitous and the other onerous


‣ The recipient cannot accept the gratuitous and renounce the onerous. Any other combination is permitted (Art.
955, par. 1)

4. IN CASE OF LEGACY/DEVISE TO ONE WHO IS ALSO A COMPULSORY HEIR

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‣ The recipient may accept either or both, the legacy/devise and the legitime. (Art. 955, par. 2, 1055)

5. EFFECT IF WILL PROVIDES OTHERWISE


‣ All of the rules above (numbers 1-4) apply only in the absence of a stipulation in the will providing otherwise.

‣ The testator’s wishes are supreme.

REPUDIATION BY OR INCAPACITY OF LEGATEE/DEVISEE

Article 956. If the legatee or devisee cannot or is unwilling to accept the legacy or devise, or if the legacy or devise for
any reason should become ineffective, it shall be merged into the mass of the estate, except in cases of substitution and
of the right of accretion. (888a)

‣ In case of Repudiation by or Incapacity of Legatee/Devisee, the following shall take effect, in the order of preference:

1. Substitution

2. Accretion

3. Intestacy

‣ If the these three things do not take effect, the legatee/devisee shall be merged into the mass of the estate (it goes by
intestacy)

GROUNDS FOR THE REVOCATION OF LEGACY/DEVISE BY OPERATION OF LAW

Article 957. The legacy or devise shall be without effect:


(1) If the testator transforms the thing bequeathed in such a manner that it does not retain either the form or the
denomination it had;
(2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that
in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the
alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or
devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the
right of repurchase;
(3) If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir's fault.
Nevertheless, the person obliged to pay the legacy or devise shall be liable for eviction if the thing bequeathed should not
have been determinate as to its kind, in accordance with the provisions of article 928. (869a)

INSTANCES WHEN THE LEGACY/DEVISE IS REVOKED BY OPERATION OF LAW


1. TRANSFORMATION
‣ Ex: “The testator converts a plantation into a fishpond.”

2. ALIENATION
‣ The alienation by the testator may be onerous or gratuitous

‣ The alienation revokes the legacy/devise even if for any reason the thing reverts to the testator.

‣ This includes cases when the alienation is declared void or annulled.

‣ Example: When the testator sells the thing to the legatee or devisee himself

‣ EXCEPTIONS: In these cases, the devise/legacy is NOT revoked:


a. If the reversion is caused by the annulment of the alienation and the cause for annulment was vitiation of
consent on the grantor’s part, either by reason of incapacity or of duress. (Fernandez v. Dimagiba, 21 SCRA
428 [1967])

‣ BALANE: This is an obvious exception because the testator had no intent to part with the property since he
merely alienated it under duress. The intent of the testator is the rationale here

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b. If the reversion is by virtue of redemption in a sale with pacto de retro.
3. TOTAL FORTUITOUS LOSS
a. Loss before the testator's death
‣ This will be a cause for revocation only if it takes place before the testator’s death.

‣ If the loss is merely partial, the legacy will subsist as to what remains

a. Loss after the testator's death


‣ Will NOT constitute revocation (despite the wording of par. 3 of this article, because legally the disposition takes
effect upon death (Art. 777).

‣ Therefore, fortuitous loss after the testator’s death will simply be an instance of “res perit domino'' and will be
borne by the legatee/devisee.

‣ BALANE: How can you revoke it if it is vested already. This is “gago”. This is a case of res perit domino, the legatee
bears the loss because he is the owner, subject to the warranty against eviction in case of generic legacies.

MISTAKE AS TO THE NAME OF THE THING AS DEVISE/LEGACY

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

Article 789. When there is an imperfect description, or when no person or property exactly answers the description,
mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence,
excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will,
as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking
into consideration the circumstances under which it was made, excluding such oral declarations. (n)

‣ BALANE: Art. 958 is already set forth in Art. 789 (on rules of interpretation of wills)

DISPOSITION MADE IN GENERAL TERMS IN FAVOR OF THE TESTATOR'S RELATIVES

Article 959. A disposition made in general terms in favor of the testator's relatives shall be understood to be in favor of
those

‣ BALANE: This article is misplaced here, because it applies not just to legatees/devisees but to all testamentary heirs as
well. This article should have been placed in Section 2 of this Chapter: “Institution of Heir.” This applies only in favor of the
testator's own relatives.
‣ Who are these relatives?
‣ The term “relatives” extends only up to the fifth degree (the limit in intestacy).

‣ Belen v. BPI (109 Phil. 1008 [I960]) states in an obiter that “...the law [Art. 959] assumes that the testator intended to
refer to the rules of intestacy …”.

‣ BALANE: But you don’t apply the other rules intestacy, only the rule of proximity in degree up to the fifth degree
‣ TOLENTINO AND PARAS: Intestacy in Philippine law stops with the fifth degree of consanguinity. Beyond that degree,
blood kinship is not recognized.
‣ Institution of relatives of another person
‣ TOLENTINO AND VITUG: The institution of relatives of another person, not of the testator, does not fall within the
ambit of this article. There is opinion to the effect that such an institution is void for vagueness
‣ But it was held in Belen u. BPI, that an institution (by way of simple substitution, of the legatee’s “descendientes
legitimos” was valid and covered all legitimate descendants, i.e. children, grandchildren, etc. per capita, in accord with
Art. 846


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CHAPTER 3: LEGAL OR INTESTATE SUCCESSION
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CHAPTER 3: LEGAL OR INTESTATE SUCCESSION

SECTION 1: GENERAL PROVISIONS

WHEN INTESTATE SUCCESSION TAKES PLACE

Article 960. Legal or intestate succession takes place:


(1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal
succession shall take place only with respect to the property of which the testator has not disposed;
(3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies
before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place;
(4) When the heir instituted is incapable of succeeding, except in cases provided in this Code. (912a)

DEFINITION OF INTESTATE SUCCESSION


‣ Intestate or legal succession takes place by operation of law, in the absence, of a valid will. (According to the Draft
Code, this draft provision was, however, inexplicably, deleted)
‣ BALANE:
‣ It is succession which takes place, IN DEFAULT OF, a valid will.
‣ Remember the three modes of succession, Intestacy is the least preferred/important among the three, but is the
most common.
‣ This is the most frequent kind of succession which operates, after compulsory succession, because Filipinos rarely
bother to make a will.

CAUSES OF INTESTACY UNDER ART. 960


‣ BALANE: Number 1 refers to total intestacy, the other grounds, may be total or partial. It’s total when there’s no
testamentary disposition at all, partial when will disposes only part of it. Always remember to take into consideration
compulsory succession and the legitimes.
1. IF A PERSON DIES WITHOUT A WILL, OR WITH A VOID WILL, OR ONE WHICH HAS SUBSEQUENTLY LOST ITS VALIDITY
‣ The three instances under this paragraph all contemplate the absence of a will, provided there is a free portion

a. There is no will

b. Will was void

c. Will has lost its validity

‣ A will that has subsequently lost its validity is one that has been revoked without a later one taking its place.

‣ BALANE: “validity” should read “efficacy”, because if a will is valid, it will always be valid. Only efficacy is lost.
2. WHEN THE WILL DOES NOT INSTITUTE AN HEIR TO, OR DISPOSE OF ALL THE PROPERTY BELONGING TO THE TESTATOR
‣ In such case, legal succession shall take place only with respect to the property of which the testator has not
disposed

‣ Remember that a will which does not institute an heir is still valid (as disposition of property is not an essential
element of wills), but it is a useless will as far as succession is concerned.

‣ BALANE: This is when the will does not dispose of the entire “free portion”, not the entire estate (as the provision says)
because the legitimes have to be respected.
3. IF THE SUSPENSIVE CONDITION ATTACHED TO THE INSTITUTION OF HEIR DOES NOT HAPPEN OR IS NOT FULFILLED
‣ Intestacy here may also be total or partial, depending on the extent of the disposition that turns out to be inoperative.

4. IF THE HEIR DIES BEFORE THE TESTATOR, OR REPUDIATES THE INHERITANCE, THERE BEING NO SUBSTITUTION, AND NO RIGHT
OF ACCRETION TAKES PLACE

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‣ This is when the instituted heir, devisee or legatee predeceases the testator in testamentary succession or there is
renunciation by the heir, provided substitution or accretion does not take place

‣ Note that there is no right of representation in these cases

5. WHEN THE HEIR INSTITUTED IS INCAPABLE OF SUCCEEDING, EXCEPT IN CASES PROVIDED IN THIS CODE.
‣ Intestacy here may also be total or partial

‣ Incapacity to succeed is found in Articles 1027, 1028, and 1032.

OTHER CAUSES OF INTESTACY


1. Happening of a Resolutory Condition

2. Expiration of a Resolutory Term

3. Preterition

BASIC RULES OF INTESTACY

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

Article 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of
representation when it properly takes place.

Relatives in the same degree shall inherit in equal shares, subject to the provisions of article 1006 with respect to relatives
of the full and half blood, and of article 987, paragraph 2, concerning division between the paternal and maternal lines.
(912a)

BASIC PRINCIPLES OF INTESTACY


‣ Intestacy operates on the same principles as succession to the legitime.

‣ There are two principles, operating sometimes simultaneously, sometimes singly: exclusion and concurrence.
‣ The groups of intestate heirs and the different combinations in intestacy are outlined under Section 2 (Articles 978-
1010)

‣ BALANE: Intestacy will be very easy if you know the legitimes

BASIS OF INTESTACY
‣ The presumed will of the decedent, which would distribute the estate in accordance with the love and affection he has
for his family and close relatives, and in default of these persons, the presumed desire of the decedent to promote
charitable and humanitarian activities.

‣ MANRESA: The law of intestacy is founded on the presumed will of the deceased. Love, it is said, first descends, then
ascends, and, finally, spreads sideways. Thus, the law first calls the descendants, then the ascendants, and finally the
collaterals, always preferring those closer in degree to those of remoter degrees, on the assumption that the deceased
would have done so had he manifested his last will. Lastly, in default of anyone called to succession or bound to the
decedent by ties of blood or affection, it is in accordance with his presumed will that his property be given to charitable or
educational institutions, and thus contribute to the welfare of humanity

WHO ARE THE INTESTATE HEIRS?


1. Legitimate children or descendants

2. Illegitimate children or descendants

3. Legitimate parents or ascendants

4. Illegitimate parents

5. Surviving spouse

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6. Brothers and sisters, nephews and nieces

7. Other collateral relatives up to the fifth degree

8. The State.

‣ Numbers 1 to 5 are both compulsory and intestate heirs


‣ Numbers 6 to 8 are intestate heirs

BASIC RULES IN INTESTACY


1. RELATIONSHIP
‣ You have to be related to the decedent to be an intestate heir

‣ There are only four kinds of relationships of the decedent that will give rise to the status of intestate heir

a. Family (Jus Familial)


‣ Relationship with his descendants and ascendants in the direct line

‣ Generally, blood relationship, except for adopted

b. Blood (Jus Sanguinis)


‣ Relationship with his collateral relatives (up to the fifth degree)

‣ Always blood relationship

c. Spouse (Jus Conjugis)


‣ Relationship with his spouse

‣ Not a blood relationship

‣ Relationship created by a valid or voidable marriage

d. State (Jus Imperii)


‣ Relationship with the State

‣ State as the last heir

2. PREFERENCE OF LINES
‣ The three lines of relationship are:

a. The descending

b. The ascending; and

c. The collateral

‣ The law lays down an order of preference among these lines

‣ The descending excludes the ascending and the collateral

‣ The ascending excludes the collateral.

‣ BALANE: This is also true in compulsory succession. The descending is preferred over the ascending.
‣ EXCEPTION: Illegitimate children/descendants do NOT exclude the legitimate parents/ascendants

3. PROXIMITY OF DEGREE
‣ The nearer exclude the more remote (Article 962, par. 1), without prejudice to representation.

‣ This applies to the descending and ascending line, but representation only takes place in the descending line.

‣ It also applies to the collateral line, but there is only once instance where representation take place in this line, this
is in case of brothers and sisters, and nephews and nieces.

4. EQUALITY AMONG RELATIVES OF THE SAME DEGREE


‣ This rule is a corollary of the previous one: If the nearer exclude the more remote, logically those of equal degree
should inherit in equal shares (Article 962, par. 2).

‣ EXCEPTIONS:
a. The rule of preference of lines
‣ Parents and children are both one degree, but the descending is preferred over the ascending

‣ In fact, the descendant excludes the ascendants from inheriting, but if they are legitimate descendants

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b. The distinction between legitimate and illegitimate filiation
‣ They are governed by a ratio of 2:1 (Article 983, in relation to Article 895, as amended by Article 176, Family
Code)

c. The rule of division by line in the ascending line


‣ This pertains to the paternal and maternal ascending line

‣ Should there be more than one of equal degree belonging to the same ascending line (the grandparents and
higher) they shall divide the inheritance per capita; should they be of different lines but of equal degree, one-
half shall go to the paternal and the other half to the maternal ascendants. In each line the division shall be
made per capita. (Article 987, par. 2)

d. The distinction between full-blood and half-blood relationship among brothers and sisters, as well as
nephews and nieces
‣ They are also governed by a ratio of 2:1 (Articles 1006 and 1008)

e. Representation
‣ Heirs who inherit by right of representation will normally inherit in different shares, because the portioning is NO
per capita, but per stirpes

‣ Those (grandchildren, etc) who will inherit by right of representation will not inherit in equal shares, because
it will depend on the number of grandchildren in relation of the children they stand to inherit from by right of
representation (persons representing will only inherit what the person to be represented will inherit).

‣ More on representation later :)

SUBSECTION 1: RELATIONSHIP

DETERMINATION OF LINES AND COMPUTATION OF DEGREES

Article 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree. (915)

Article 964. A series of degrees forms a line, which may be either direct or collateral.
A direct line is that constituted by the series of degrees among ascendants and descendants.
A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants,
but who come from a common ancestor. (916a)

Article 965. The direct line is either descending or ascending.


The former unites the head of the family with those who descend from him.
The latter binds a person with those from whom he descends. (917)

Article 966. In the line, as many degrees are counted as there are generations or persons, excluding the progenitor.
In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the parent, two
from the grandfather, and three from the great-grandparent.
In the collateral line, ascent is made to the common ancestor and then descent is made to the person with whom the
computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle, who is the
brother of his father, four from his first cousin, and so forth. (918a)

BASIC CONCEPTS IN RELATIONSHIP


1. Concept of “Degrees”
‣ This is the method of computing the proximity of relationship.

‣ Proximity of relationship is determined by the number of generations, and each generation forms a degree.

‣ BALANE: Just count the number of generations to get the number of degrees.

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2. Concept of “Lines”
‣ These are relative positions in the family between 2 persons

‣ A series of degrees forms a line (Art. 964, par. 1)

RULES IN ART. 963-966; HOW TO DETERMINE THE LINES AND COMPUTING DEGREES IN INTESTACY
1. DETERMINATION OF LINES
a. Direct Line

‣ That constituted by the series of degrees among ascendants and descendants. (Art. 964, par. 2)
i. Descending
‣ Unites the head of the family with those who descend from him. (Art. 965)

ii. Ascending
‣ Binds a person with those from whom he descends (Art. 965)

b. Collateral Line
‣ That constituted by the series of degrees among persons who are not ascendants and descendants, but who
come from a common ancestor. (Art. 964, par. 3)
‣ A collateral relative is any relative related to you by blood who is neither your descendant nor ascendant (siblings,
cousins, uncles and aunts)

2. COMPUTATION OF DEGREES
a. Direct line
‣ There is NO legal limit to the number of degrees for entitlement to intestate succession

‣ Theoretically, even the great-great-great grandfather is an intestate heir, assuming he is still living.

‣ BALANE: Obviously, the practical limit is human mortality


‣ Mode of Counting Degrees: One generation is one degree (Art. 966, par. 2)
‣ First degree: parents and children

‣ Second degree: Grandparents and grandchildren

‣ Third degree: Great-grandparents and great-grandchildren

‣ And so on, until infinity!


b. Collateral Line
‣ The limit is five (5) degrees for intestate succession

‣ Mode of Counting Degrees (Article 966, par. 3)


i. From one reference point, ascend to nearest common ancestor (If there are more than one nearest
common ancestor, choose any one)

ii. Then, descend to the other reference point.


iii. Number of generations constituting the ascent and the descent is the degree of collateral relationship.
‣ BALANE: The roman system is more simpler, just draw a line to the nearest collateral relative (who is the
sibling) and that’s one degree. We follow the german system which is more complicated, you need to go to
the ascending line first to get to the collateral line. Count first the nearest common ancestor (if there are
more than one, choose one). Because of this way of counting, the nearest collateral is at least two degrees,
never one degree. (your sibling is two degrees from you)
‣ Collaterals by degree
‣ First degree: None

‣ Second degree: Siblings (brothers and sisters)

‣ Third degree:

i. Uncles and aunts

ii. Nephews and nieces

‣ Fourth degree:

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i. First cousins

ii. Siblings of a grandparent (grand-uncles and grand-aunts)

iii. Grandchildren of a sibling (grand-nephews and grand-nieces)

‣ Fifth degree:

i. Children of first cousin

ii. First cousins of a parent

iii. Siblings of great-grandparent

iv. Great-grandchildren of a sibling

BASIC RULES IN RELATIONSHIP


‣ These rules are the reason why it’s important to know the degrees and lines!
1. NEARER EXCLUDES THE MORE REMOTE
‣ Children will exclude grandchildren (qualified by representation of course)

2. THE DIRECT IS PREFERRED OVER THE COLLATERAL.


‣ Parents or children are preferred over siblings

2. IN THE DIRECT LINE, THE DESCENDING IS PREFERRED OVER THE ASCENDING


‣ Children are preferred over parents

FULL AND HALF-BLOOD RELATIONSHIP

Article 967. Full blood relationship is that existing between persons who have the same father and the same mother.
Half blood relationship is that existing between persons who have the same father, but not the same mother, or the same
mother, but not the same father. (920a)

‣ Full or half-blood relations is only material for certain collateral relatives, particularly the brothers and sisters and
nephews and nieces
‣ There is a ratio of 2:1 for full-blood and half-blood relationship respectively (Articles 1006 and 1008).

‣ With respect to other collateral relatives, the full-blood and half-blood relationship is not material.

RIGHT OF ACCRETION IN INTESTACY

Article 968. If there are several relatives of the same degree, and one or some of them are unwilling or incapacitated to
succeed, his portion shall accrue to the others of the same degree, save the right of representation when it should take
place. (922)

Article 1015. Accretion is a right by virtue of which, when two or more persons are called to the same inheritance, devise
or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is
added or incorporated to that of his co-heirs, co-devisees, or co-legatees. (n)

Article 1018. In legal succession the share of the person who repudiates the inheritance shall always accrue to his co-
heirs. (981)

APPLICABILITY OF ART. 968; WHEN ACCRETION OPERATES IN INTESTACY


‣ All the following requisites must be present:
1. IN INTESTATE SUCCESSION

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‣ No accretion in compulsory succession, since it passes to them by their own right. (Art. 1021)

‣ In testamentary succession, its covered under Art. 1022

2. HEIRS OF THE SAME DEGREE


‣ Note that the heirs must be in the same kind of relationship

‣ For accretion to take place the heirs involved must be in the same kind of relationship to the decedent, inheriting
together (must be all siblings, or all children, etc.)

‣ This is because of the principle of preference of lines in intestate succession.

‣ Thus, there can be no accretion among a grandchild, a grandparent and a brother of the decedent (even if they are
all related to him in the second degree) because they are not inheriting together in the first place.

3. SOME HEIRS ARE DISQUALIFIED OR ARE UNWILLING TO INHERIT


a. Predecease
b. Incapacity, or

c. Renunciation

‣ Note that only “some” of the heirs are disqualified or unwilling to inherit. If ALL of them are disqualified or unwilling,
then Art. 969 applies instead.

4. REPRESENTATION DOES NOT OPERATE


‣ Instances when Representation does NOT operate:
1. Renunciation or Unwillingness

2. In the direct ascending line

3. In the collateral line

‣ EXCEPT: In intestate succession, representation only operates in the collateral line in favour of nephews and
nieces (representing their parents, who are the siblings of the decedent) (Art. 975)

‣ EXCEPTION TO EXCEPTION: In intestate succession, representation will NOT operate in favour of the
nephews and nieces, if ALL the siblings of the decedent are disqualified to inherit. (Art. 975)
4. In cases of adopted children

‣ In case of predecease or incapacity, representation, if proper, will prevent accretion from occurring.
‣ No accretion if there is representation (such as if predecease or incapacity in the descending line)

‣ BUT note that accretion will be proper, in favour of the heirs of the same degree, if there is no representation
(meaning the predeceased or incapacitated heirs have no children)

‣ Example: A has three sons, X, Y, and Z. A dies without a will. X is childless. For intestate purposes, if X in
disinherited (or incapacitated or predeceases) then the share of X will go to Y and Z by right of accretion, because
representation will not take place. If however, X has a child, then his share will go to his son by right of
representation, accretion will not take place.
‣ Accretion is more relevant in renunciation, because there is no representation is renunciation.
‣ Example: A has three sons, X, Y and Z. Z has children. A dies without a will. For compulsory/intestate purposes, if Z
renounces his share, then Z’s children cannot inherit (because they are excluded by nearer descendants X and Y,
and they can’t inherit by representation because there is no representation in renunciation), thus, Z’s share will
accrue by right of accretion to the other heirs of the same degree, X and Y.

RULE IN CASE OF ACCRETION


‣ The portion of the disqualified or unwilling heir shall accrue to the others of the same degree and kind (those
inheriting together with him) (Art. 968)
‣ The part assigned to the one disqualified/unwilling to inherit (meaning he renounces or cannot receive his share, or who
died before the testator) is added or incorporated to that of his co-heirs, co-devisees, or co-legatees (Art. 1015)

RENUNCIATION BY ALL IN THE SAME KIND

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Article 969. If the inheritance should be repudiated by the nearest relative, should there be one only, or by all the nearest
relatives called by law to succeed, should there be several, those of the following degree shall inherit in their own right
and cannot represent the person or persons repudiating the inheritance. (923)

Article 977. Heirs who repudiate their share may not be represented.

EFFECT OF RENUNCIATION BY ALL NEAREST RELATIVES IN THE SAME DEGREE


‣ RULE: IF THE INHERITANCE IS REPUDIATED (RENOUNCED) BY THE ALL THE NEAREST HEIRS IN THE SAME KIND, THE RIGHT OF
SUCCESSION SHOULD FIRST BE PASSED ON THE HEIRS IN SUCCEEDING DEGREES (IN THE SUCCESSIONAL ORDER) BEFORE THE
NEXT LINE CAN SUCCEED, BECAUSE OF THE RULE OF PREFERENCE OF LINES.

‣ Note that it must be ALL (who will renounce) because if not, then the right of accretion in Art. 968 applies, in favor of
the others (who did not renounce) of the same kind and degree
‣ Successional Order:
1. The descending line first
‣ If all the descendants of a certain degree renounce, succession passes to the descendants of the next degree, and
so on, ad indefinitum

2. The ascending line next


‣ Should no one be left in the descending line, the heirs in the ascending acquire the right of succession, again in
order of degrees of proximity

3. The collateral line last


‣ Only if all the descendants and ascendants renounce will the collateral relatives acquire the right to succeed.

PREDECEASE OR INCAPACITY BY ALL IN THE SAME DEGREE


‣ This eventuality is not provided for by this article.

‣ The rules outlined above, however, are equally applicable to such a situation, EXCEPT in cases where representation is
proper (such as in the descending line)

‣ Remember that representation does not apply in cases of universal renunciation outlined above, because there is no
representation in renunciation (Art. 977)

SUMMARY OF RULES IN ART. 968 AND 969

ART. 968 ART. 969

When it applies 1. Renuncation by SOME heirs of the 1. Renunciation by ALL heirs of the same
same degree
degree (universal renunciation)

2. Predecease or Incapacity of SOME 2. Predecease or Incapacity of ALL heirs of


heirs of the same degree when the same degree when representation does
representation does NOT operate NOT operate (universal predecease or
incapacity) (This is not explicitly provided
for in Art. 869 but according to Balane it is
covered)

Who will inherit Heirs of the Same Kind and Degree (those Next heirs in the successional order
instead? who inherit together)

Basis of inheriting Right of Accretion By their own right, as the nearest heirs
heirs

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SECTION 1: GENERAL PROVISIONS
ART. 968 ART. 969

Example Renuncation by SOME heirs of the same Renunciation by ALL heirs of the same degree

degree

‣ A has three sons, X, Y and Z. X, Y and Z


‣ A has three sons, X, Y and Z. Z has have their own children. If they X, Y and Z
children. A dies without a will. For ALL renounce their inheritance, then their
intestate purposes, if Z renounces his shares will go to their children, not by
share, then Z’s children cannot inherit representation, but by virtue of their own
(because they are excluded by nearer right, as their heirs in the nearest degree
descendants X and Y, and they can’t according to the successional order.
inherit by representation because there
is no representation in renunciation),
thus, Z’s share will accrue by right of
accretion to the other heirs of the same
degree, X and Y.

SUBSECTION 2: RIGHT OF REPRESENTATION


Finally, this is where representation will be discussed, after being constantly cited all throughout from the start @_@

Article 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place
and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he
could have inherited. (942a)

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

Article 972. The right of representation takes place in the direct descending line, but never in the ascending.

In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half
blood. (925)

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

Article 974. Whenever there is succession by representation, the division of the estate shall be made per stirpes, in such
manner that the representative or representatives shall not inherit more than what the person they represent would
inherit, if he were living or could inherit. (926a)

Article 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by
representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions. (927)

Article 976. A person may represent him whose inheritance he has renounced. (928a)

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

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DEFINITION OF REPRESENTATION
‣ Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the
degree of the person represented, and acquires the rights which the latter would have if he were living or if he could
have inherited. (Art. 970)
‣ Criticisms on this statutory definition (According to JBL Reyes)

1. The term “representation” is erroneous, it should be called “subrogation” instead


‣ It has been suggested that a better term to call this legal process is either hereditary subrogation or successional
subrogation, because the person inheriting in another’s stead actually represents no one and truly succeeds in his
own right

‣ BALANE: “Representation” is a case of agency, where one who acts in behalf of another. Representation involves
an agent who acts on behalf of a principal, where the former’s acts are considered the latter’s own. In
“representation” in succession, the heirs (who will represent) are really placed in the position of the heirs (who will
be represented) in their own right, thus it is really a case of substitution or subrogation. But because the law calls it
“representation” we will call it that.
2. The right is not created by “fiction of law”, rather, it is created directly by law
‣ The law has ample authority to pre- determine who are to be called to inherit; It needs no resort to fictions, but to
merely make use of its power to designate those who are to take the inheritance

‣ BALANE: Representation is a right because the law says so, period.

INSTANCES WHEN REPRESENTATION OPERATES

As to the Grounds As to the Kind of As to the Lines As to the Child Represented


for Disqualification Succession

1. Predecease
1. Compulsory In Compulsory Succession If the child to be represented is
Succession
LEGITIMATE
2. Incapacity
1. In the direct descending line only (Art.
‣ Only legitimate children/descendants
2. Intestate 972)
3. Disinheritance
can represent him (Art. 992)

Succession

‣ EXCEPT: (1) adopted children (2)


legitimate children can only be
If the child to be represented is
Representation represented by legitimate children
Note that there is no ILLEGITIMATE
operates when the (Art. 992)

express provision ‣ Both legitimate and illegitimate


heir is disqualified
on representation in In Intestate Succession children/descendants can represent
from inheriting, and
the legitime, except him (Art. 902, 989, 990)

the causes for 1. In the direct descending line (Art. 972)

Art. 923, in case of


disqualification may
disinheritance 2. In the collateral line, but only in favour
only be these three.
of nephews and nieces (Art. 975)
BALANE: This is the rule for both
(Art. 981, 1035, 923) compulsory and intestate succession. No
‣ Representing their parents (who are
reason or logic for the distinction, it's just
the siblings of the decedent). This is
what the law says. Note that illegitimate
the only case of representation in
children are preferred here.
the collateral line

‣ EXCEPT: If ALL the siblings of the


decedent are disqualified to inherit,
then representation does NOT
operate in favour of the nephews
and nieces, but rather they will all
inherit in their own right, per capita.
(Art. 975)

INSTANCES WHEN REPRESENTATION DOES NOT OPERATE


1. RENUNCIATION OR UNWILLINGNESS (TO INHERIT)
‣ See Art. 977

‣ Representation NEVER operates in renunciation

‣ In this case, what operates is either: Art. 968 on right of accretion (if some of the heirs of the same degree renounce)
or Art. 969 on the rule on successional order and preference (if all of the heirs of the same degree renounce)

‣ But note that although a renouncer cannot be represented, he can represent the person whose inheritance he has
renounced (Article 976).

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‣ In other words, the renouncer can represent but can never be represented.
‣ The reason for this is found in Article 971 (2nd sentence): “The representative does not succeed the person
represented but the one whom the person represented would have succeeded.

‣ Example:

‣ “A has a son B, B has a son C, and C has a son D. Note that there are four generations here. When B dies, C
renounces his inheritance from B. Later, A dies. C can still inherit from A by virtue of representing B. When C
renounced, he only renounced his share from B, not A. But, D cannot represent C and inherit from B. Thus, the
renouncer C can represent B but he cannot be represented by D.”

2. TESTAMENTARY SUCCESSION
‣ See Art. 856

‣ Representation only operates in compulsory and intestate succession

‣ If the testator provides that in case the instituted heir (or devisee or legatee) cannot inherit from him (due to
predecease, incapacity, disinheritance), another person will represent him or inherit instead, this is a case of
substitution, NOT representation.

‣ Example: A makes a will, instituting X to 1/3 of his estate, and provides that if X dies before him, the son of X, will
represent him. The son of X will inherit by virtue of substitution, not representation.

3. IN THE DIRECT ASCENDING LINE


4. IN THE COLLATERAL LINE
‣ EXCEPT: In intestate succession (not compulsory), representation only operates in the collateral line in favour of
nephews and nieces (representing their parents, who are the siblings of the decedent) (Art. 975)

‣ EXCEPTION TO EXCEPTION: In intestate succession, representation will NOT operate in favour of the nephews
and nieces, if ALL the siblings of the decedent are disqualified to inherit. (Art. 975)

‣ In this case the nephews and nieces will not inherit by representation, but in their own right, per capita.
5. IN THE DIRECT DESCENDING LINE
a. WHEN THE IRON CURTAIN RULE APPLIES (ART. 992)
‣ Illegitimate children cannot represent their legitimate parents

b. IN CASES OF ADOPTED CHILDREN


‣ An adopted can neither represent nor be represented

‣ This applies to both compulsory and intestate succession

‣ This is because the relationship created by adoption only extends to the adopter and adopted. It does not extend
to their respective relatives.

‣ TEOTICO VS. DEL VAL 13 SCRA 406 (1965)


‣ Under our law the relationship established by adoption is limited solely to the adopter and the adopted and
does not extend to the relatives of the adopting parents or of the adopted child except only as expressly
provided for by law. Hence, no relationship is created between the adopted and the collaterals of the adopting
parents.

‣ As a consequence, the adopted is an heir of the adopter but not of the relatives of the adopter.

‣ The relationship established by the adoption, however, is limited to the adopting parent, and does not extend
to his other relatives, except as expressly provided by law.

‣ Thus, the adopted child cannot be considered as a relative of the ascendants and collaterals of the adopting parents, nor of
the legitimate children which they may have after the adoption, except that the law imposes certain impediments to marriage
by reason of adoption.

‣ Neither are the children of the adopted considered as descendants of the adopter. The relationship created is exclusively be-
tween the adopter and the adopted, and does not extend to the relatives either.

‣ Relationship by adoption is limited to adopter and adopted, and does not extend to other members of the family of either; but
the adopted is prohibited to marry the children of the adopter to avoid scandal.

‣ BALANE: The rationale for the rule barring an adopted from representing and being represented is that the legal relationship
created by adoption is strictly between the adopter and the adopted. It does not extend to the relatives of either party.

‣ SAYSON V. CA, 205 SCRA. 321 (1992)


‣ While it is true that the adopted child shall be deemed to be a legitimate child and have the same right as the
latter, these rights do not include the right of representation.

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SECTION 1: GENERAL PROVISIONS
‣ The relationship created by the adoption is between only the adopting parents and the adopted child and does
not extend to the blood relatives of either party

PARTIES IN REPRESENTATION
1. Decedent
2. Person represented — Person who fails to inherit due to certain ground (predecease, incapacity, etc)
3. Representative — Person who inherits by right of representation

HOW REPRESENTATION OPERATES


‣ RULE: IT OPERATES PER STIRPES
‣ This means that the representative or representatives receive only what the person represented would have
received
‣ In other words, representation operates in such manner that the representative or representatives shall not inherit
more than what the person they represent would inherit, if he were living or could inherit. (Art. 974)

‣ If there are more than one representative in the same degree, then divide the portion equally, without prejudice to the
distinction between legitimate and illegitimate children, when applicable

‣ Distinguish this from “per capita” which involves proportionate sharing.

‣ BALANE: per stirpes means “through the roots”, meaning the representative will only get what the “root” would have
gotten.
‣ Example:
‣ “A has 3 children, X, Y and Z. X has 2 children X1 and X2. If X dies before A (or is incapacitated or disinherited),
then X1 and X2 will inherit from A by right of representation. Once A dies, the portioning is 1/3 to Y, 1/3 to Z and
1/3 collectively to X1 and X2 (because they will receive only what the person represented would have received, per
stirpes, not per capita), they will then share the 1/3 equally, or 1/6 each.”
‣ “A has 2 children, B and C. B has 1 child, B1, while C has two children C1 and C2. B and C predeceases A. When
A dies, the three grandchildren will NOT inherit equally, because representation operates per stirpes, the
representatives receive only what the person represented would have received. Thus, B1 would get 1/2 and C1
and C2 will get 1/4 each (as they divide equally the share of their father C)”
‣ Remember of course the rules and portioning in legitime and intestacy
‣ Note the difference in the rule in case of disqualification of all children and all siblings (of the decedent)
1. If ALL the children (of the decedent) are disqualified
‣ The grand-children still inherit by representation, per stirpes (Article 982).

‣ This is the rule is all or some of the children are disqualified.

2. If ALL the brothers/sisters (of the decedent) are disqualified

‣ The nephews/nieces do NOT inherit by representation, but by their own right as the next heirs preferred in
the successional line

‣ Meaning they will inherit per capita, or in equal portions (Article 975).

‣ In other words, parang Art. 869 din yung application (note that Art. 869 does not apply when representation
operates)
‣ Note that ALL the siblings of the decedent must be disqualified to inherit for per capita portioning to apply
(due to predecease, incapacity, or disinheritance)
‣ If only some of the siblings of the decedent are disqualified, then the nephews and nieces will inherit by
representation, and thus, per stirpes.

RULES IN REPRESENTATION
1. THE REPRESENTATIVE MUST BE QUALIFIED TO SUCCEED THE DECEDENT (ART. 973)
‣ This is because the representative succeeds the decedent (the one whom the person represented would have
succeeded), NOT the person represented. (Art. 971)

‣ Thus, the representative must be alive when the decedent dies


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CHAP. 3: LEGAL OR INTESTATE SUCCESSION
SECTION 2: ORDER OF INTESTATE SUCCESSION

2. THE REPRESENTATIVE NEED NOT BE QUALIFIED TO SUCCEED THE PERSON REPRESENTED


‣ This is because the representative does not succeed the person represented (Art. 971)

3. THE PERSON REPRESENTED NEED NOT BE QUALIFIED TO SUCCEED THE DECEDENT


‣ In fact, the reason why representation is taking place is that the person represented is not qualified (due to
predecease, incapacity, or disinheritance)

‣ If the person represented is qualified to succeed, then representation does not operate duh

SECTION 2: ORDER OF INTESTATE SUCCESSION

INTESTATE HEIRS

WHO ARE THE INTESTATE HEIRS?


1. Legitimate children or descendants

2. Illegitimate children or descendants

3. Legitimate parents or ascendants

4. Illegitimate parents

5. Surviving spouse

6. Siblings (brothers and sisters), nephews and nieces

7. Other collateral relatives up to the fifth degree

8. The State.

‣ Numbers 1 to 5 are also compulsory heirs.


‣ Numbers 6 to 8 are intestate heirs only
‣ BALANE:
‣ Generally, the first five groups (1-5) will EXCLUDE the last 3 groups (6-8). Meaning the existence of any compulsory
heirs will exclude the last three groups (who are not compulsory heirs) from inheriting. The only exception is that
number 5 (the surviving spouse), will not exclude number 6 (the siblings and nephews and nieces)
‣ Because of the overlapping of compulsory and intestate heirs, there is, to a considerable extent, an overlapping of
compulsory and intestate succession, the legitime and the intestate portions merge. Also, because of this, there is a
very close parallel between the rules of compulsory succession and those of intestate succession.

EXCLUSION AND CONCURRENCE OF INTESTATE HEIRS; COMBINATIONS IN INTESTATE


SUCCESSION

SUMMARY OF THE RULES OF EXCLUSION AND CONCURRENCE OF INTESTATE HEIRS

GROUP OF WHO THEY EXCLUDE WHO THEY CONCUR WITH WHO EXCLUDES THEM
INTESTATE HEIRS

1. Legitimate 1. Legitimate or Illegitimate 1. Surviving Spouse No one


Children Parents 2. Illegitimate Children
2. Collaterals
3. State

2. Illegitimate 1. Illegitimate Parents 1. Legitimate Children No one


Children 2. Collaterals 2. Legitimate Parents
3. State 3. Surviving Spouse

3. Legitimate 1. Collaterals 1. Surviving Spouse Legitimate Children


Parents 2. State 2. Illegitimate Children

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CHAP. 3: LEGAL OR INTESTATE SUCCESSION
SECTION 2: ORDER OF INTESTATE SUCCESSION
GROUP OF WHO THEY EXCLUDE WHO THEY CONCUR WITH WHO EXCLUDES THEM
INTESTATE HEIRS

4. Illegitimate 1. Collaterals Surviving Spouse 1. Legitimate Children


Parents 2. State 2. Illegitimate Children

5. Surviving 1. Collaterals other than 1. Legitimate Children No one


Spouse siblings, nephews and nieces 2. Illegitimate Children
2. State 3. Legitimate Parents
4. Illegitimate Parents
5. Siblings, nephews and
nieces

6. Siblings, 1. All other collaterals Surviving Spouse 1. Legitimate Children


Nephews and 2. State 2. Illegitimate Children
Nieces 3. Legitimate Parents
* Note that nephews/nieces 4. Illegitimate Parents
exclude uncles/aunts, though all
are 3rd degree relatives.

7. Other Collaterals 1. Collaterals in remoter Collaterals in the same 1. Legitimate Children


(up to the fifth degrees (those nearer degree 2. Illegitimate Children
degree) collaterals exclude more 3. Legitimate Parents
remote collaterals) 4. Illegitimate Parents
2. State 5. Surviving Spouse
6. Siblings, nephews and
nieces

8. The State No one No one Everyone (of the intestate


heirs)

‣ Like the legitime, intestacy operates in rules of exclusion and concurrence. Know the heirs who will exclude the others and
concur with others. Inversely, know the heirs who are excluded by the existence of the other heirs.
‣ Note under the table above:
‣ “Legitimate children” include legitimate descendants and adopted children
‣ “Illegitimate children” include illegitimate descendants
‣ “Legitimate parents” include legitimate ascendants and adopted parents
‣ “Illegitimate parents” DO NOT INCLUDE illegitimate ascendants (you do not go beyond the illegitimate parents)
‣ The State is always the last intestate heir. Thus, a person will always have an intestate heir.

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CHAP. 3: LEGAL OR INTESTATE SUCCESSION
SECTION 2: ORDER OF INTESTATE SUCCESSION

COMBINATIONS IN INTESTATE SUCCESSION

HEIRS LEGITIME INTESTATE (FREE) PORTION TOTAL PORTION BASIS

1. Legitimate
The whole estate, divided Art. 979
Children
equally
2. Illegitimate
Art. 988
Children *The rule in case of a
1/2 of the estate
surviving spouse and the
3. Legitimate marriage, being in articulo Art.
*But, 1/3 only in the case of a
Parents mortis falling under Art. 900, 985,
surviving spouse and the 1/2 of the estate
par. 2 becomes irrelevant 987
marriage, being in articulo
now since total intestacy
mortis falling under Art. 900,
4. Surviving operates. Art.
par. 2
Spouse 994,
* For the legitimate 995
ascendants, observe the rule
5. Illegitimate of division by line Art. 993
Parents

6. Legitimate Art.
Siblings 1004,
The whole estate, divided equally. But in case of full or half-blood 1006
siblings, proportion of 2:1 applies (half-blood sibling gets only 1/2
7. Illegitimate of the share of a full-blood sibling) By
Siblings analogy
*The 2:1 rule also applies to full or half-blood nephews and nieces with Art.
1004,
*Note that for nephews and nieces, they are NOT inheriting by 1006
representation but rather, in their own right, as there is no sibling (Art.
8. Nephews and 975) Art.
None
Nieces 975,
1008

9. Other The whole estate, divided equally, between those of the same
Collaterals (up to degree. But observe the rule that the nearer in degree excluding
Art.
the fifth degree) the more remote
1009,
1010
*Note also that there is no representation nor full or half-blood
distinction for the other collateral relatives

10. State Art.


The whole estate
1011

11. Legitimate a. Legitimate Children: 1/2 a. If legitimes do not exceed the The whole estate, each
Children and of the estate estate: Apportion the free portion illegitimate child getting 1/2
Illegitimate between the children, but each the share of one legitimate
Children b. Illegitimate Children: illegitimate child get only 1/2 the child.
Each will get 1/2 of share of one legitimate child.
share of one legitimate b. If legitimes exceed the estate:
child No free portion (The legitime
prevails over intestacy, since you
Art.
don’t even have enough for the
983, Art.
legitimes, intestacy will not apply)
176 of
the
*This is a case where there may be no
Family
free portion as the legitimes may
Code
exceed the entire estate. Get the
legitimes first to determine whether it
has been impaired, in order to know
whether there is a free portion that will
pass by intestacy. Remember that in
this case, a proportionate reduction
must be made against the illegitimate
children

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CHAP. 3: LEGAL OR INTESTATE SUCCESSION
SECTION 2: ORDER OF INTESTATE SUCCESSION

HEIRS LEGITIME INTESTATE (FREE) PORTION TOTAL PORTION BASIS

12. Legitimate a. Legitimate Children: 1/2 Apportion the free portion equally The whole estate, divided
Children and of the estate between the legitimate children and the equally (the surviving spouse
Surviving Spouse spouse (the surviving spouse counted counted as one legitimate
b. Surviving Spouse: as one legitimate child) child)
Share equal to that of
Art. 996
one child *But if only one legitimate child, then *If only one legitimate child,
the entire free portion of 1/4 is given to then the child gets 1/2, the
*But if only one legitimate the surviving spouse (meaning the surviving spouse gets the
child, then legitime of spouse spouse is beneficiary of the entire other half
is 1/4 of the estate only intestate portion)

13. Legitimate a. Legitimate Children: 1/2 a. If legitimes do not exceed the The whole estate, the
Children, of the estate estate: Apportion the free portion surviving spouse being
Illegitimate between the children, but each counted as one legitimate
Children, and b. Illegitimate Children: illegitimate child get only 1/2 the child and each illegitimate
Surviving Spouse Each will get 1/2 of share of one legitimate child. The child getting 1/2 the share of
share of one legitimate surviving spouse is counted as one legitimate
child one legitimate child
b. If legitimes exceed the estate:
c. Surviving Spouse: No free portion (The legitime
Art. 999
Share equal to that of prevails over intestacy, since you
and Art.
one legitimate child don’t even have enough for the
176 of
legitimes, intestacy will not apply)
the
*But if only one legitimate
Family
child, then legitime of spouse *This is the other case where there may
Code
is 1/4 of the estate only be no free portion as the legitimes may
exceed the entire estate. Get the
legitimes first to determine whether it
has been impaired, in order to know
whether there is a free portion that will
pass by intestacy. Remember that in
this case, a proportionate reduction
must be made against the illegitimate
children

14. Legitimate a. Legitimate Parents: 1/2 a. Legitimate Parents: None a. Legitimate Parents: 1/2
Parents and of the estate of the estate
Illegitimate b. Illegitimate Children: 1/4 of the Art. 991
Children b. Illegitimate Children: 1/4 estate b. Illegitimate Children: 1/2
of the estate of the estate

15. Legitimate a. Legitimate Parents: 1/2 a. Legitimate Parents: None a. Legitimate Parents: 1/2
Parents and of the estate of the estate
Surviving Spouse b. Surviving Spouse: 1/4 of the Art. 997
b. Surviving Spouse: 1/4 of estate b. Surviving Spouse: 1/2
the estate of the estate

16. Legitimate a. Legitimate Parents: 1/2 a. Legitimate Parents: None a. Legitimate Parents: 1/2
Parents, of the estate of the estate
Illegitimate b. Illegitimate Children: None
Children, and b. Illegitimate Children: 1/4 b. Illegitimate Children: 1/4 Art.
Surviving Spouse of the estate c. Surviving Spouse: 1/8 of the of the estate 1000
estate
c. Surviving Spouse: 1/8 c. Surviving Spouse: 1/4
of the estate of the estate

17. Surviving a. Surviving Spouse: 1/3 of a. Surviving Spouse: 1/6 of the a. Surviving Spouse: 1/2
Spouse and the estate estate of the estate
Illegitimate Art. 998
Children b. Illegitimate Children: 1/3 b. Illegitimate Children: 1/6 of the b. Illegitimate Children: 1/2
of the estate estate of the estate

18. Surviving a. Surviving Spouse: 1/4 of a. Surviving Spouse: 1/4 of the a. Surviving Spouse: 1/2
By
Spouse and the estate estate of the estate
analogy
Illegitimate
with Art.
Parents b. Illegitimate Parents: 1/4 b. Illegitimate Parents: 1/4 of the b. Illegitimate Parents: 1/2
997
of the estate estate of the estate

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CHAP. 3: LEGAL OR INTESTATE SUCCESSION
SECTION 2: ORDER OF INTESTATE SUCCESSION

HEIRS LEGITIME INTESTATE (FREE) PORTION TOTAL PORTION BASIS

19. Surviving a. Surviving Spouse: 1/2 of a. Surviving Spouse: None a. Surviving Spouse: 1/2
Spouse and the estate of the estate
Legitimate b. Legitimate Siblings, Nephews and
Siblings, b. Legitimate Siblings, Nieces: 1/2 of the estate b. Legitimate Siblings,
Nephews and Nephews and Nieces: Nephews and Nieces:
Art.
Nieces None *Note that the legitimate nephews and 1/2 of the estate
1001
nieces are inheriting either by
representation (if they inherit with
legitimate siblings) or in there own right
(there is no legitimate sibling) (See Art.
975)

20. Surviving a. Surviving Spouse: 1/2 of a. Surviving Spouse: None a. Surviving Spouse: 1/2
Spouse and the estate of the estate
Illegitimate b. Illegitimate Siblings, Nephews and
Siblings, b. Illegitimate Siblings, Nieces: 1/2 of the estate b. Illegitimate Siblings,
Nephews and Nephews and Nieces: Nephews and Nieces:
Nieces None *Note that the illegitimate nephews and 1/2 of the estate
nieces are inheriting either by
representation (if they inherit with
illegitimate siblings) or in there own
right (there is no illegitimate sibling)
(See Art. 975)
Art. 994
*Who are illegitimate siblings? These
are the siblings of an illegitimate
decedent. When the law speaks of
‘brothers and sisters, nephews and
nieces’ as legal heirs of an illegitimate
child, it refers to illegitimate brothers
and sisters as well as to the children,
whether legitimate or illegitimate, of
such brothers and sisters (relate this
with the iron curtain rule in Art. 992)

21. Legitimate
Siblings, The whole estate, divided equally. But in case of full or half-blood Art.
Nephews and siblings, proportion of 2:1 applies (half-blood sibling gets only 1/2 of the 1005,
Nieces share of a full-blood sibling) 1008

None *The 2:1 rule also applies to full or half-blood nephews and nieces
22. Illegitimate By
Siblings, *Note that the legitimate nephews and nieces are inheriting either by analogy,
Nephews and representation (if they inherit with legitimate siblings) or in there own Art.
Nieces right (there is no legitimate sibling) (See Art. 975) 1005,
1008

‣ Note under the table above:


‣ “Legitimate children” include legitimate descendants and adopted children
‣ “Illegitimate children” include descendants
‣ “Legitimate parents” include legitimate ascendants and adopted parents
‣ “Illegitimate parents” DO NOT INCLUDE illegitimate ascendants (you do not go beyond the illegitimate parents)
‣ Note these certain rules of exclusion :
1. Children of any kind EXCLUDE illegitimate parents (Art. 993)
2. Nephews and nieces EXCLUDE uncles and aunts (Art. 1009 and Bacayo v. Borromeo 1986) (This is another
exception to the rule that relatives of the same degree inherit equally.

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CHAP. 3: LEGAL OR INTESTATE SUCCESSION
SECTION 2: ORDER OF INTESTATE SUCCESSION

PARTIAL INTESTACY

BALANE:
‣ The problem of partial intestacy is an unnecessary one. There is a problem because the civil code does not provide for
such situation. This is the bad news. The good news is that all the major commentators have a similar solution, which is
the most logical.
‣ The combinations laid down by the preceding articles (978-1014) cover only cases of total intestacy. Nowhere in this
Chapter or elsewhere can one find provisions to govern cases of partial intestacy; Instances where the decedent has
left a will disposing of part, but not all, of the disposable portion. How then should the estate be divided if the
decedent died with a will but the will does not dispose of the entire free or disposable portion?
‣ The problem is solved by inference, bearing in mind the law’s intent, thus:
1. Trace where the intestate or free portion went in total intestacy.
2. Since part of that free portion was disposed of by will, the testamentary provision should be carried out, and
what is left of the free portion should then be given to the intended beneficiary in intestacy.

RULE: TRACE WHERE THE INTESTATE/FREE PORTION WILL GO IN TOTAL INTESTACY, THE REMAINING FREE PORTION IN PARTIAL
INTESTACY (AFTER DEDUCTING TESTAMENTARY DISPOSITIONS) WILL BE DISPOSED ACCORDING TO SUCH PROPORTION
‣ This involves comparing the legitime portion and intestate portion in relation to the total portion each heir or group of heir
will get in total intestacy (see table of total intestacy above)
‣ Where the free portion will go, in total intestacy, can be generalised into these classes, thus in partial intestacy, it
will also go accordingly
1. INTESTATE (FREE) PORTION IS ENTIRELY GIVEN TO ONE OR ONE GROUP OF INTESTATE HEIR
‣ Thus, in partial intestacy the remaining free potion will also be disposed to the one heir or group of heir in these
cases
a. When there is only one or one group of intestate heir

‣ Obviously, since they are the only remaining intestate heirs, meaning they do not concur with other groups,
then the entire free portion is given to them

‣ Such as, if the only intestate heirs are the legitimate children alone; or legitimate parents alone, or the brothers
and sisters alone; legitimate siblings, nephews and nieces alone (unless there are full-blood and half-blood) or
illegitimate siblings, nephews and nieces alone (unless there are full-blood and half-blood).

b. Legitimate Child and Surviving Spouse

‣ Entire free portion is given to the surviving spouse

c. Legitimate Parents and Illegitimate Children

‣ Entire free portion is given to Illegitimate children

d. Legitimate Parents and Surviving Spouse

‣ Entire free portion is given to the surviving spouse

e. Legitimate Parents, Illegitimate Children, and Surviving Spouse

‣ Entire free portion is given to the surviving spouse

f. Surviving Spouse and Legitimate Siblings, Nephews and Nieces

‣ Entire free portion is given to the legitimate siblings, nephews and nieces

g. Surviving Spouse and Illegitimate Siblings, Nephews and Nieces

‣ Entire free portion is given to the illegitimate siblings, nephews and nieces

‣ Example: The net estate of A is 12 million. His compulsory heirs are his legitimate parents, and surviving spouse. Then
A institutes a third person to 1/8 of his estate. If A dies, you cannot divide the 12 million into 1/2 to parents (as
legitime), 1/4 to spouse (as legitime) and 1/8 to third person. Where will the remaining intestate portion of 1/8 go? To
the spouse alone. Why? since under Art. 997, if it had been total intestacy, the entire free portion would have gone
solely to the spouse, thus, in partial intestacy, the free portion should also go solely to the spouse.
‣ BALANE: The obvious intention of the law is to give it the free portion to the spouse. whats left of the free portion
should go to the intestate heir to whom it is meant to go if there was no will (in total intestacy).

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CHAP. 3: LEGAL OR INTESTATE SUCCESSION
SECTION 2: ORDER OF INTESTATE SUCCESSION
2. INTESTATE PORTION IS EQUALLY DIVIDED TO BETWEEN THE INTESTATE HEIRS
‣ Thus, in partial intestacy the remaining free portion will also be disposed equally to such group of heirs
a. Legitimate Children and Surviving Spouse

b. Surviving Spouse and Illegitimate Children

c. Surviving Spouse and Illegitimate Parents

3. INTESTATE PORTION IS DIVIDED BETWEEN THE INTESTATE HEIRS IN DIFFERENT PROPORTIONS (2:1 PROPORTION)
‣ Thus, in partial intestacy the remaining free potion will also be disposed of in a 2:1 proportion to such group of
heirs (illegitimate or half-blood get only 1/2 of what legitimate or full-blood gets)
a. Legitimate Children and Illegitimate Children

b. Legitimate Children, Illegitimate Children, and Surviving Spouse

c. Legitimate Siblings, Nephews and Nieces (if there are full-blood and half-blood)

d. Illegitimate Siblings, Nephews and Nieces (if there are full-blood and half-blood)

PARTIAL INTESTACY: TO WHOM WILL THE REMAINING FREE PORTION BE GIVEN?

FREE PORTION GIVEN TO ONE OR ONE FREE PORTION DIVIDED EQUALLY FREE PORTION DIVIDED 2:1
GROUP OF INTESTATE HEIR BETWEEN THE INTESTATE HEIRS ACCORDINGLY

1. Give to the Sole Intestate Heir


This is if the remaining intestate heirs are This is if the remaining intestate heirs are
the following:
the following:

‣ When there is only one or one group of


intestate heir
1. Legitimate Children and Surviving 1. Legitimate Children and Illegitimate
Spouse (Divide equally individually)
Children

2. Give to Surviving Spouse

2. Surviving Spouse and Illegitimate 2. Legitimate Children, Illegitimate


‣ If intestate heirs are either:

Children (Divide equally between the Children, and Surviving Spouse

a. Legitimate Child and Surviving two groups)

3. Legitimate Siblings, Nephews and


Spouse

3. Surviving Spouse and Illegitimate Nieces

b. Legitimate Parents and Surviving Parents (Divide equally between the


4. Illegitimate Siblings, Nephews and
Spouse
two groups)

Nieces

c. Legitimate Parents, Illegitimate


Children, and Surviving Spouse

*For siblings, nephews and nieces, only if if


3. Give to Illegitimate Children

there are full-blood and half-blood

‣ If intestate heirs are Legitimate Parents


and Illegitimate Children

*Illegitimate or half-blood get only 1/2 of


4. Give to Siblings, Nephews and Nieces

what legitimate or full-blood gets


‣ If intestate heirs are either:

a. Surviving Spouse and Legitimate


Siblings, Nephews and Nieces

b. Surviving Spouse and Illegitimate


Siblings, Nephews and Nieces

SUBSECTION 1: DESCENDING DIRECT LINE

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

Article 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as
to sex or age, and even if they should come from different marriages.
An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child. (931a)

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SECTION 2: ORDER OF INTESTATE SUCCESSION

Article 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal
shares. (932)

Article 981. Should children of the deceased and descendants of other children who are dead, survive, the former shall
inherit in their own right, and the latter by right of representation. (934a)

Article 982. The grandchildren and other descendants shall inherit by right of representation, and if any one of them
should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions.
(933)

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

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

‣ Art. 984 has been repealed by Secs. 17 and 18, R.A. 8552.

SUBSECTION 2: ASCENDING DIRECT LINE

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

Article 986. The father and mother, if living, shall inherit in equal shares.
Should one only of them survive, he or she shall succeed to the entire estate of the child. (936)

Article 987. In default of the father and mother, the ascendants nearest in degree shall inherit.
Should there be more than one of equal degree belonging to the same line they shall divide the inheritance per capita;
should they be of different lines but of equal degree, one-half shall go to the paternal and the other half to the maternal
ascendants. In each line the division shall be made per capita. (937)

SUBSECTION 3: ILLEGITIMATE CHILDREN

Article 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire
estate of the deceased. (939a)

Article 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is
dead, the former shall succeed in their own right and the latter by right of representation. (940a)

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

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

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SECTION 2: ORDER OF INTESTATE SUCCESSION

Article 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father
or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (943a)

Article 993. If an illegitimate child should die without issue, either legitimate or illegitimate, his father or mother shall
succeed to his entire estate; and if the child's filiation is duly proved as to both parents, who are both living, they shall
inherit from him share and share alike. (944a)

Article 994. In default of the father or mother, an illegitimate child shall be succeeded by his or her surviving spouse who
shall be entitled to the entire estate.
If the widow or widower should survive with brothers and sisters, nephews and nieces, she or he shall inherit one-half of
the estate, and the latter the other half. (945a)

IRON CURTAIN RULE (ART. 992)


‣ Generally, the grandchildren and other descendants shall inherit by right of representation, and if any one of them should
have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions. (Art. 982)

‣ EXCEPTION: THE EXCEPTION IS THE “IRON CURTAIN” RULE IN ART. 992


‣ AN ILLEGITIMATE CHILD HAS NO RIGHT TO INHERIT AB INTESTATO FROM THE LEGITIMATE CHILDREN AND RELATIVES OF
HIS FATHER OR MOTHER; NOR SHALL SUCH CHILDREN OR RELATIVES INHERIT IN THE SAME MANNER FROM THE
ILLEGITIMATE CHILD.

‣ This only applies in intestacy, not to testacy, as the rule is predicated on the presumed will of the decedent

‣ The illegitimate cannot inherit from the legitimate, and the legitimate cannot inherit from the illegitimate.

‣ In other words, Article 992 prohibits succession ab intestato between the illegitimate child and the legitimate
children and relatives of his father or mother. 

‣ This means that an illegitimate child cannot inherit by right of representation from the legitimate relatives of
his illegitimate parent, and vice versa. Thus, an illegitimate child of one who is himself a legitimate child
cannot represent the latter in the inheritance to his legitimate descendants (such as the illegitimate child’s
legitimate half-sister) or other legitimate relatives (such as grandparents). 

‣ In the same manner, these legitimate relatives are prohibited from succeeding intestate the illegitimate child.

‣ Note that the illegitimate child of an illegitimate parent is not so barred. If both of them are illegitimate, there is
NO bar 

‣ CORPUS VS. ADMINISTRATOR 85 SCRA 567 (1978)


‣ Article 943 “prohibits all successory reciprocity mortis causa between legitimate and illegitimate relatives. The
rule in Article 943 is now found in Article 992 of the Civil Code

‣ That rule is based on the theory that the illegitimate child is disgracefully looked upon by the legitimate family
while the legitimate family is, in turn, hated by the illegitimate child.

‣ The law does not recognize the blood tie and seeks to avoid further grounds of resentment

‣ LEONARDO VS. COURT OF APPEALS 120 SCRA 890 (1983)


‣ An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father,
this prohibition extends to the right of representation.
‣ DIAZ VS. IAC 150 SCRA 645 (1987)
‣ Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely a succession
ab intestato between the illegitimate child and the legitimate children and relatives of the father or
mother of said legitimate child. They may have a natural tie of blood, but this is not recognized by law for the
purposes of Art. 992.

‣ Between the legitimate family and the illegitimate family there is presumed to be an intervening antagonism and
incompatibility. The illegitimate child is disgracefully looked down upon by the legitimate child; the latter
considers the privileged condition of the former, and the resources of which it is thereby deprived; the former,
in turn, sees in the illegitimate child nothing but the product of sin, palpable evidence of a blemish broken in
life; the law does no more than recognize this truth, by avoiding further grounds of resentment.

‣ JBL REYES:

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SECTION 2: ORDER OF INTESTATE SUCCESSION
‣ In the Spanish Civil Code of 1889 the right of representation was admitted only within the legitimate family:
so much so that Article 943 of that Code prescribed that an illegitimate child can not inherit ab intestato
from the legitimate children and relatives of his father and mother.
‣ The Civil Code of the Philippines apparently adhered to this principle since it reproduced Article 943 of the
Spanish Code in its own Art. 992, but with fine inconsistency, in subsequent articles (990, 995 and 998) our
Code allows the hereditary portion of the illegitimate child to pass to his own descendants, whether
legitimate or illegitimate. So that while Art. 992 prevents the illegitimate issue of a legitimate child from
representing him in the intestate succession of the grandparent, the illegitimate of an illegitimate
child can now do so. This difference being indefensible and unwarranted, in the future revision of the Civil
Code we shall have to make a choice and decide either that the illegitimate issue enjoys in all cases the right
of representation, in which case Art. 992 must be suppressed: or contrariwise maintain said article and
modify Articles 995 and 998. The first solution would be more in accord with an enlightened attitude vis-a-
vis illegitimate children
‣ DIAZ VS. IAC 182 SCRA 427 (1990)
‣ Issue was, does the term “relatives” in Article 992 include the legitimate parents of the father or mother of the
illegitimate children?
‣ The right of representation is not available to illegitimate descendants of legitimate children in the inheritance of
a legitimate grandparent. It may be argued, as done by petitioners, that the illegitimate descendant of a
legitimate child is entitled to represent by virtue of the provisions of Article 982, which provides that “the
grandchildren and other descendants shall inherit by right of representation.” Such a conclusion is erroneous. It
would allow intestate succession by an illegitimate child to the legitimate parent of his father or mother, a
situation which would set at naught the provisions of Article 992. Article 982 is inapplicable to instant case
because Article 992 prohibits absolutely a succession ab intestato between the illegitimate child and the
legitimate children and relatives of the father or mother. It may not be amiss to state that Article 982 is
the general rule and Article 992 the exception.
‣ The rules laid down in Article 982 that ‘grandchildren and other descendants shall inherit by right of
representation’ and in Article 902 that the rights of illegitimate children are transmitted upon their death to their
descendants, whether legitimate or illegitimate are subject to the limitation prescribed by Article 992 to the end
that ‘an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his
father or mother

‣ MANRESA: Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely a
succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or
mother of said illegitimate child. They may have a natural tie of blood, but this is not recognized by law for the
purpose of Article 992. Between the legitimate family and the illegitimate family there is presumed to be an
intervening antagonism and incompatibility. The illegitimate child is disgracefully looked down upon by the
legitimate family; and the family is in turn, hated by the illegitimate child; the latter considers the privileged
condition of the former, and the resources of which it is thereby deprived; the former, in turn, sees in the
illegitimate child nothing but the product of sin, palpable evidence of a blemish broken in life; the law does no
more than recognize the truth, by avoiding further ground of resentment.
‣ While the new Civil Code may have granted successional rights to illegitimate children, those articles, however,
in conjunction with Article 992, prohibit the right of representation from being exercised where the person to be
represented is a legitimate child. Needless to say, the determining factor is the legitimacy or illegitimacy of the
person to be represented. If the person to be represented is an illegitimate child, then his descen- dants,
whether legitimate or illegitimate, may represent him; however, if the person to be represented is
legitimate, his illegitimate ascendants cannot repre- sent him because the law provides that only his
legitimate descendants may exercise the right of repre- sentation by reason of the barrier imposed In
Article 992. In this wise, the commentaries of Manresa on the matter in issue, even though based on the old
Civil Code, are still very much applicable to the new Civil Code because the amendment, although substantial,
did not consist of giving illegitimate children the right to represent their natural parents (legitimate) in the
intestate succession of their grandparents (legitimate).

‣ The word “relative” in Art. 992 is broad enough to comprehend all the kindred of the person spoken
of.The word “relatives” should be construed in its general acceptance.
‣ BALANE: The term relatives, although used many times in the Code, is not defined by it. In accordance
therefore with the canons of statutory interpretation, it should be understood to have a general and inclusive
scope, inasmuch as the term is a general one. Generalia verba sunt generaliter intelligenda That the law
does not make a distinction prevents us from making one
‣ According to Prof. Balane, to interpret the term relatives in Article 992 in a more restrictive sense than it is
used and intended is not warranted, by any rule of interpretation. Besides, he further states that when the
law intends to use the term in a more restrictive sense, it qualifies the term with the word col- lateral, as in

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SECTION 2: ORDER OF INTESTATE SUCCESSION
Articles 1003 and 1009 of the new Civil Code.Thus, the word, “relatives” is a general term and when
used in a statute it embraces not only collateral relatives but also all the kindred of the person
spoken of, unless the context indicates that it was used in a more restrictive or limited sense.
‣ BALANE CITING TOLENTINO: “The lines of this distinction between legitimates and illegitimates, which
goes back very far in legal history, have been softened but not erased by present law. Our legislation has not
gone so far as to place legitimate and illegitimate children on exactly the same footing. Even the Family
Code of 1987 (EO 209) has not abolished the gradation between legitimate and illegitimate children
(although it has done away with the subclassification of illegitimates into natural and 'spurious’). It would
thus be correct to say that illegitimate children have only those rights which are expressly or clearly granted
to them by law”
‣ We conclude that until Article 992 is suppressed or at least amended to clarify the term “relatives,” there is
no other alternative but to apply the law literally
‣ SUNTAY VS. SUNTAY, G.R. NO. 183053, 16 JUNE 2010
‣ The peculiar circumstances of this case, painstakingly pointed out by counsel for petitioner, overthrow the legal
presumption in Article 992 of the Civil Code that there exist animosity and antagonism between legitimate and
illegitimate descendants of a deceased.

‣ The illegitimate grandchild of the decedent, was actually treated by the decedent and her husband as their own
son, reared from infancy, educated and trained in their businesses, and eventually legally adopted by
decedents husband, the original oppositor to respondents petition for letters of administration.

‣ In this case, Article 992 was also not applied where the illegitimate grandchild was legally adopted by
the grandparents, thus raising his status to that of a legitimate child entitled to succeed as a direct heir
to the inheritance left by his grandmother/adoptive mother

SUBSECTION 4: SURVIVING SPOUSE

Article 995. In the absence of legitimate descendants and ascendants, and illegitimate children and their descendants,
whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate, without prejudice to the rights of
brothers and sisters, nephews and nieces, should there be any, under article 1001. (946a)

Article 996. If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the
succession the same share as that of each of the children. (834a)

Article 997. When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be
entitled to one-half of the estate, and the legitimate parents or ascendants to the other half. (836a)

Article 998. If a widow or widower survives with illegitimate children, such widow or widower shall be entitled to one-half
of the inheritance, and the illegitimate children or their descendants, whether legitimate or illegitimate, to the other half.
(n)

Article 999. When the widow or widower survives with legitimate children or their descendants and illegitimate children or
their descendants, whether legitimate or illegitimate, such widow or widower shall be entitled to the same share as that of
a legitimate child. (n)

Article 1000. If legitimate ascendants, the surviving spouse, and illegitimate children are left, the ascendants shall be
entitled to one-half of the inheritance, and the other half shall be divided between the surviving spouse and the
illegitimate children so that such widow or widower shall have one-fourth of the estate, and the illegitimate children the
other fourth. (841a)

Article 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to
one-half of the inheritance and the brothers and sisters or their children to the other half. (953, 837a)

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SECTION 2: ORDER OF INTESTATE SUCCESSION

Article 1002. In case of a legal separation, if the surviving spouse gave cause for the separation, he or she shall not have
any of the rights granted in the preceding articles. (n)

‣ SANTILLON VS. MIRANDA 14 SCRA 563 (1965)


‣ Issue was, how shall the estate of a person who dies intestate be divided when the only survivors are the spouse and
one legitimate child?

‣ The child argues that under Art. 892, he should get 3/4 of his father's estate. Art 892: “If only the legitimate child or
descendant of the deceased survives the widow or widower shall be entitled to one-fourth of the hereditary estate.”
As she gets one-fourth, therefore, I get 3/4, says the child.

‣ The spouse argues that under Art. 992, if a widow or widower and legitimate children or descendants are left, the
surviving spouse has in the succession the same share as that of each of the children.

‣ The child says that Art. 992 is unjust and unequitable to the extent that it grants the widow the same share as that of
the children in intestate succession, whereas in testate, she is given 1/4 and the only child 1/2. In testate succession,
where there is only one child of the marriage, the child gets one-half, and the widow or widower one-fourth. But in
intestate , if Art. 996 is applied now, the child gets one-half, and the widow or widower one-half. Unfair or inequitable,
they insist.

‣ The spouse contends that Art. 996 should control, regardless of its alleged inequity, being as it is, a provision on
intestate succession involving a surviving spouse and a legitimate child, inasmuch as in statutory construction, the
plural word "children" includes the singular "child."

‣ Art. 892 of the New Civil Code falls under the chapter on Testamentary Succession; whereas Art. 996 comes under
the chapter on Legal or Intestate Succession. Such being the case, it is obvious that the child cannot rely on Art. 892
to support his claim to 3/4 of his father's estate. Art 892 merely fixes the legitime of the surviving spouse and Art. 888
thereof, the legitime of children in testate succession. While it may indicate the intent of the law with respect to the
ideal shares that a child and a spouse should get when they concur with each other, it does not fix the amount of
shares that such child and spouse are entitled to when intestacy occurs. Because if the latter happens, the pertinent
provision on intestate succession shall apply, i.e., Art. 996.

‣ Since this is intestate proceedings. The only article applicable is Art. 996

‣ Art. 996 could or should be read (and so applied) : "If the widow or widower and a legitimate child are left, the
surviving spouse has the same share as that of the child."
‣ Indeed, if we refuse to apply the article to this case on the ground that "child" is not included in "children,"
the consequences would be tremendous, because "children" will not include "child" in the other articles
‣ Court said that “children” in Art. 996 includes “child” (if there is only one)

SUBSECTION 5: COLLATERAL RELATIVES

Article 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives
shall succeed to the entire estate of the deceased in accordance with the following articles. (946a)

Article 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. (947)

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

Article 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the
former shall be entitled to a share double that of the latter. (949)

Article 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother's side, are the
only survivors, all shall inherit in equal shares without distinction as to the origin of the property. (950)

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ATENEO LAW 4B, BATCH 2017 170 OF 217 CIVIL LAW REVIEWER
CHAP. 3: LEGAL OR INTESTATE SUCCESSION
SECTION 2: ORDER OF INTESTATE SUCCESSION

Article 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with
the rules laid down for brothers and sisters of the full blood. (915)

Article 1009. Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives
shall succeed to the estate.
The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole
blood. (954a)

Article 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line.
(955a)

‣ INING VS VEGA, GR 174727, AUGUST 12, 2013


‣ One who is merely related by affinity to the decedent does not inherit from the latter and cannot become a co-owner
of the decedent’s property. Consequently, he cannot effect a repudiation of the co-ownership of the estate that was
formed among the decedent’s heirs. Family relations, which is the primary basis for succession, exclude relations by
affinity

SUBSECTION 6: THE STATE

Article 1011. In default of persons entitled to succeed in accordance with the provisions of the preceding Sections, the
State shall inherit the whole estate. (956a)

Article 1012. In order that the State may take possession of the property mentioned in the preceding article, the pertinent
provisions of the Rules of Court must be observed. (958a)

Article 1013. After the payment of debts and charges, the personal property shall be assigned to the municipality or city
where the deceased last resided in the Philippines, and the real estate to the municipalities or cities, respectively, in
which the same is situated. If the deceased never resided in the Philippines, the whole estate shall be assigned to the
respective municipalities or cities wherethe same is located. Such estate shall be for the benefit of public schools, and
public charitable institutions and centers, in such municipalities or cities. The court shall distribute the estate as the
respective needs of each beneficiary may warrant. The court, at the instance of an interested party, or on its own motion,
may order the establishment of a permanent trust, so that only the income from the property shall be used. (956a)

Article 1014. If a person legally entitled to the estate of the deceased appears and files a claim thereto with the court
within five years from the date the property was delivered to the State, such person shall be entitled to the possession of
the same, or if sold, the municipality or city shall be accountable to him for such part of the proceeds as may not have
been lawfully spent. (n)

ASSIGNMENT AND DISPOSITION OF DECEDENT’S ASSETS TO THE STATE


1. If decedent was a resident of the Philippines at any time
a. Personal property—to municipality of last residence

b. Real property—where situated

2. If decedent never a resident of the Philippines:


‣ Personal and real property—where respectively situated

‣ Lex situs is observed

HOW PROPERTY IS TO BE USED


‣ For the benefit of public educational and charitable institutions in the respective municipalities/cities;

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ATENEO LAW 4B, BATCH 2017 171 OF 217 CIVIL LAW REVIEWER
CHAP. 3: LEGAL OR INTESTATE SUCCESSION
SECTION 2: ORDER OF INTESTATE SUCCESSION
‣ Alternatively, at the instance of an interested party, or motu proprio, court may order creation of a permanent trust for
the benefit of the institutions concerned.

IF THE ESTATE HAS BEEN GIVEN TO THE STATE BUT A PERSON LEGALLY ENTITLED LATER APPEARS
‣ Any person entitled by succession to the estate may file a claim with the court
‣ This would include any heir by any kind of succession: the legitime, testamentary, or intestate

‣ Such person shall be entitled to the possession of the same, or if sold, the municipality or city shall be accountable to
him for such part of the proceeds as may not have been lawfully spent

‣ Prescriptive period for claim—5 years from the delivery of the property to the State (the political subdivision
concerned).

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ATENEO LAW 4B, BATCH 2017 172 OF 217 CIVIL LAW REVIEWER
CHAP. 4: PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSION
SECTION 1: RIGHT OF ACCRETION
CHAPTER 4: PROVISIONS COMMON TO TESTATE AND INTESTATE
SUCCESSION

SECTION 1: RIGHT OF ACCRETION

DEFINITION OF ACCRETION

Article 1015. Accretion is a right by virtue of which, when two or more persons are called to the same inheritance, devise
or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is
added or incorporated to that of his co-heirs, co-devisees, or co-legatees. (n)

Article 1023. Accretion shall also take place among devisees, legatees and usufructuaries under the same conditions
established for heirs. (987a)

WHEN ACCRETION OPERATES


1. IN TESTAMENTARY OR INTESTATE SUCCESSION
‣ Accretion operates only in testamentary and intestate succession

‣ For testamentary succession see Art. 1016, 1022

‣ For intestacy, see Art. 968, 1018

‣ When accretion does not operate, according to the kind of succession involved:

a. Accretion NEVER operates with respect to the legitimes (Art. 1022)

b. In testacy, accretion is subordinate to substitution (simple), meaning it does not operate if there is substitution.

c. In intestacy, accretion is subordinate to representation, meaning it does not operate if there is representation.

2. THERE MUST BE TWO OR MORE HEIRS, LEGATEES, DEVISEES CALLED TO THE SAME INHERITANCE, DEVISE OR LEGACY
3. WHEN AN HEIR, DEVISEE, OR LEGATEE:
a. Dies before the testator (predecease)

b. Renounces (renunciation)

c. Cannot receive his share (incapacity)

‣ Note that these are also the same grounds for substitution (which operates in testamentary succession)

EFFECT OF ACCRETION
‣ RULE: THE SHARE OF THE HEIR WHO CANNOT INHERIT IS ADDED OR INCORPORATED TO THAT OF HIS CO-HEIRS, CO-DEVISEES
OR CO-LEGATEES

COMPARISON: ACCRETION, SUBSTITUTION AND REPRESENTATION

ACCRETION SUBSTITUTION (SIMPLE) REPRESENTATION

Effect A co-heir, co-devisee, or co- The appointed heir (substitute) The representative (compulsory or intestate
legatee is added or enters into the inheritance in heir) is raised to the place and the degree of
incorporated to the share of his default of the heir originally the person represented, and acquires the
co-heirs, co-devisees, or co- instituted (Art. 857) rights which the latter would have if he were
legatees. (Art. 1015) living or if he could have inherited. (Art. 970)

In what Mode of 1. Intestate Testamentary 1. Compulsory


Succession it 2. Testamentary 2. Intestate
Operates

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ATENEO LAW 4B, BATCH 2017 173 OF 217 CIVIL LAW REVIEWER
CHAP. 4: PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSION
SECTION 1: RIGHT OF ACCRETION
ACCRETION SUBSTITUTION (SIMPLE) REPRESENTATION

Causes 1. Predecease 1. Predecease


2. Renunciation 2. Incapacity
3. Incapacity 3. Disinheritance

ACCRETION IN TESTAMENTARY SUCCESSION

Article 1016. In order that the right of accretion may take place in a testamentary succession, it shall be necessary:
(1)