SUCCESSION (BALANE) CHAMP © 2004

Notes -1-

between god and family. Hence, it is a position

Introductory Lectures that must be occupied every time. When the
pater familias dies, it was necessary to have
Our Civil Code is divided into 4 books. Our law on laws to determine who would succeed to his
succession is part of property law as a mode of priestly functions.
acquiring ownership. It is an independent mode of
acquiring ownership. 3. Universal succession. Now, succession is
nothing more but a mode of acquiring
History: The Civil Code follows the Gaian Order. It ownership.
basically has 3 classifications.
1) the law on persons We derive succession from Roman Law, French Law
2) the law on things and Spanish Law.
3) the law on obligations.

DEFINITIONS:
Succession is derived from 2 Latin words.
Sub – meaning under Manresa
Cedere – to transfer, cede, transmit, pass, surrender ▪ A subrogation or replacement by one person of
another
Succession [sub-cedere] [succedere] [successus] ▪ Taking position of one formerly occupied by
[successio] is “to pass under.” another.
▪ In a juridical sense: succession is the
Passing Under. substitution of one person for another in a
Under Roman Law, a person occupies a space (like determinable legal relationship.
under a house), this is his legal personality. When he
dies, the law did not leave the space vacant. Castan and Balane
Instead, a successor will occupy the space. A ▪ Substitution by one person in the transmissible
successor, passes under that space, o fill that space rights of another
(successio). In effect, the space or personality is
always occupied.
ELEMENTS OF SUCCESSION (MANRESA)
Every person, during his lifetime stands inside a civil
personality out of which several relationships arise. a) cambio de sujeto – change of subject or
(ex. citizenship, filiation, being a lawyer, contract persons € ownership is transferred from
between buyer and seller € these are all decedent to heir
relationships). b) identidad de objecto – identity of object or
same thing, same rights. € the same
When he dies, the civil personality is extinguished. property is involved.
Some relationships die, some survive. Now, the law
provides for succession.
KINDS OF SUCCESSION
SUCCESSION IS A SET OF RULES THAT DETERMINES
A) TO WHOM Moment of transmission
B) AT WHAT TIME Mortis Causa Inter Vivos
C) IN WHAT MANNER, AND - takes place upon death - takes place during the
D) IN WHAT PROPORTIONS lifetime of the parties
THE RELATIONSHIPS THAT SURVIVE ARE, OR (now called donation,
SHOULD GO. (INTUITU PERSONAE) inter vivos)
*in the Philippines, succession is strictly mortis
The law that governs them is succession. That is all causa!
on succession. Everything else are footnotes. But as
lawyers, you have to know the footnotes. Extent of rights invovled
Universal Particular
- covers the entire - succession to specific
3 ASPECTS OF SUCCESSION IN ROMAN LAW estate, or the fractional items or property
part thereof Devise Legacy
1. Succession fulfills longing for immortality. It Specific Specific
creates something that survives the person. It real personal
satisfies yourself that something lives forever. property property
Some leave paintings or poems like Ovid,
Cicero, or Monet, but we are not like them.

2. Religious (pater familias) or priestly functions.

Pater familias means head of the family. In
Roman law, he is usually the one who manages
and exercises authority. He is seen as a bridge champ.reyno © 2004
 -2

Cause and Importance (Rank)

1. Compulsory - that effected by operation BASIS OF THE LAW ON SUCCESSION
of law to the forced heirs
even if not in the will Some say it is the law on property because it is a
2. Testamentary - by the provisions of a will mode of acquiring ownership. Some say it is the law
3. Intestate or Legal - in default of a will, on persons. Because of the family ties and legitimes.
subordinate to testamentary So how's that?
4. Mixed (not really a kind) but it
simply means a combination Castan says the law on succession is both part of
of the 3 above property law and family law.
5. Contractual - donation propter nuptias by
one to another of future
property which takes effect MAJOR CHANGES IN THE NEW CIVIL CODE (FROM
after death. (governed by the THE SPANISH CODE)
law on contracts)
- this is now eliminated by 1. Allowance of holographic wills. This was allowed
the FC, and donations during the Spanish times, but abrogated during
propter nuptias are governed the American Regime. Now we have restored it.
by testamentary succession
2. Improvement in the succession position of the
surviving spouse. Before, the surviving spouse
Parties to Succession had only a usufructuary right. She has no share
in ownership in case and was only a concurring
1. The one who dies – decedent (not dissident) / heir. Now she is given full ownership and is a
transferor / causante / de cuius / auctor compulsory heir.
▪ auctor € testator if with will, decedent if
without will 3. The abolition of mejora or betterment. (the right
of a parent to give a child more than the other).
2. The one who succeeds – successor / transferee/ Since Filipinos never understood this concept, it
causa habiente was deleted form the NCC.
▪ by universal title – heir
▪ by particular title – devisee, or legatee 4. Increase in the free portion because of the
abolition of the mejora.

PRINCIPLES OF SUCCESSION 5. Abolition of the reserves (reservation) and the

reversions (return). However, the NCC restored
1. No succession takes place when a person is the reserva troncal.
alive. Succession has to be upon death only.
During the lifetime, the heirs merely have an 6. Grant of succession rights to spurious children.
expectancy to the properties. (those of parents who are disqualified from
marrying each other or incapacitated).
2. The interest of the family may override the Previously, only legitimate children have
provisions of a will. (ex. legitimes). A will cannot successional rights.
impair the legitimes.
7. Greater facility in probate of wills. We now allow
3. The estate devolves upon the family, unless the ante mortem probate of wills, during the lifetime
decedent expressly provides for otherwise in a of the testator. (Testator himself files for
will. probate).

4. The family cannot be entirely deprived of the 8. Application of Art 739 (prohibited donations) to
estate. (ex. legitimes). the law on succession. The following are void
donations
5. Within a family, the heirs of equal degree or a. those made between persons who
proximity inherit in equal shares. (as a general are guilty of adultery or
rule). concubinage at the time of the
dontation.
6. The State has a share in the inheritance. (ex. b. Those made between persons
Intestacy – state has a share) found guilty of the same criminal
offense, in consideration thereof.
7. The heirs are not liable to the debts of the c. Those made to a public officer, or
estate beyond their shares in the inheritance. his wife, descendants or
The estate should be liable for the debts left by ascendants, by reason of his office.
the decedent. (debts are paid before heirs get
shares). 9. Limitation of the fidei commissary substitution to
only one degree. Previously it was two degrees.
SUCCESSION (BALANE) CHAMP © 2004
Notes -3-

10. Intestate succession is narrowed from the sixth

degree to fifth degree. (Balane: this is still too How do we determine those that are transmissible?
far!) ▪ Criterion
▪ If the right or obligation is strictly personal, it
11. Abolition of the pupilar and ejemplar is NOT transmissible, otherwise transmissible.
substitution. TRANSMISSBLE NOT TRANSMISSIBLE
Patrimonial rights Intuitu personae
12. Allowance of lifetime probate.

Are monetary obligations purely personal such that

Note: our law on succession is mostly Spanish law. they are not transmissible?
From a total of 332 articles, very few are from ▪ NO. They are patrimonial BUT they are NOT
American origin. Here are some areas of succession passed to the heirs.
derived from American laws: ▪ They are not intuitu personae.
▪ Money debts, according to the rules of court
▪ Rules on interpretation – Art 788 – 792 (ROC), are not transmitted to the heirs, nor
▪ Rules on formal requirements of will – Art 804- paid by them. It is the estate that pays them.
809 Only after the debts are paid that the residue
▪ Rules governing witnesses to wills – Art 820 – of the estate are distributed to the heirs.
824
▪ Rules on republication and revival of wills – Arts
835-836 RECAP:
▪ Rules on revocation – Art 829 –831 ▪ The General Rule is that properties, rights and
▪ Rules on allowance and disallowance of wills – obligations are transmitted to the heirs.
Art 838-839 ▪ Exception: monetary debts.
▪ Rules on testamentary capacity – Art 797-802 ▪ This means that there are transmissible
obligations (such as obligation of a lessor to a
lessee) that are non-monetary and which are
transmissible to the heirs.

ART 774. Estate of Hemady vs. Luzon Surety

In a sense, money debts are transmitted to
Succession is: and paid for by the heirs. Whatever is payment is
a) a mode of acquisition made from the estate is ultimately a payment by the
b) by virtue of which the property, heirs since the amount of the paid claim in fact
rights and obligations € to the diminishes or reduces the shares that the heirs
extent of the value of the would have been entitled to receive.
inheritance
c) of a person are, transmitted BALANE: In this case, it is not really a money debt
through his death, to another or but only a contingent claim (because of the contract
others, of guarantee). Since a guarantee obligation is
d) either by his will or by operation of patrimonial and not intuitu personae, it was passed
law. on to the heirs. In any case, a contingent claim is a
transmissible obligation.
1. a definition by Scaevola
2. succession is one of seven modes of acquiring
ownership under Article 712. Alvarez vs. IAC
3. Relate this to Article 776. The heirs cannot escape the legal
consequences of their father's transaction (Sale).
What is the definition of inheritance? The fact that the petitioners did NOT inherit the
▪ Go to Art 776. property involved is of no moment since by legal
▪ Inheritance includes all the property, fiction, the monetary equivalent thereof devolved
rights and obligations of a person which into the mass of their father's hereditary estate. The
are not extinguished by his death estate is always liable in their totality for the
(transmissible rights) payment of the debts of the estate. But note, that
the petitioners are liable only to the extent of the
value of their inheritance.
What are transmitted?
▪ Only the transmissible rights (which includes
property) and obligations are passed by ART 775.
succession.
Decedent = the general term applied to the
person whose property is transmitted through
succession, whether or not he left a will.
 -4

Testator = If he left a will. vested upon decedent's death, the new right
recognized under the NCC in favor of illegitimate
children of the deceased cannot be asserted now, to
ART 776. the impairment of the vested right of the legitimate
children.
Inheritance includes all the property, rights
and obligations of a person which are not
extinguished by his death. De Borja vs. De Borja
There was no attempt to settle or distribute
the estate among the heirs before the probate of the
ART 777. will. The contract was merely a conveyance of any
and all of her individual share and interest in the
The right to the succession are transmitted estate of the decedent. As a hereditary share in the
from the moment of the death of the decedent. decedent's estate is transmitted or vested
immediately from the moment of death, there is no
Los derechos a la succession de una persona se legal bar to the successor of disposing of his
transmitted desde el momento de su muerte. hereditary share immediately after such death, even
if the actual extent of such share is not yet
determined until after the subsequent liquidation of
When does the successional right transmit or vest? the estate.
▪ vests ONLY upon death. The effect of such alienation is deemed
▪ The right to succession is NOT transmitted, it limited to what is ultimately adjudicated to the
is vested. To say that it vests upon death vendor heir. The aleatory character of the contract
implies that before the decedent's death the does not affect the validity of the transaction.
right was merely inchoate or contingent.
▪ The vesting of the right occurs immediately
upon the decedent's death, without a Lee vs. RTC
moment's interruption. An heir may sell only his interest in the
▪ It is at the precise moment of death, that the estate, or an ideal, undivided or aliquot part thereof.
H,D, L is legally deemed to have acquired He cannot yet sell specific property to the prejudice
ownership. of the other heirs.
▪ NOT at the time of declaration of heirs, NOT at When the estate of the deceased person is
partition, NOT at distribution. already subject of a testate or intestate proceeding,
the administrator cannot enter into any transaction
involving it without prior approval of the probate
What is transmitted at the moment of death? court.
▪ It's the inheritance. Not the rights.
▪ Relate to Art 781
Bonilla vs. Barcena
In an action to quiet title, while it is true
What are the consequences of this principle? that a person who is dead cannot sue in court, yet he
1. The law in force at the time of the decedent's can be substituted by his heirs in pursuing the case
death determines who the heirs should be. up to its completion. When he filed the case,
[USON VS. DEL ROSARIO] decedent was still alive, hence the court had
2. Ownership passes to the heir at the very acquired jurisdiction over his person. If thereafter he
moment of death, who therefore, from that died, the ROC prescribes a procedure whereby a
moment acquires the right to dispose of his party who died during the pendency of the
share either onerously or gratuitously. proceeding can be substituted.
[DE BORJA] From the moment of death, the heirs
3. The heirs have the right to be substituted for the become the absolute owners of his property, subject
deceased as party in an action that survives. to the rights and obligations of the decedent, and
[BONILLA VS. BARCENA] they cannot be deprived of their rights except by
those provided for by law. The moment of death is
the determining factor when the heirs acquire a
definite right to the inheritance, whether such right
Uson vs. Del Rosario be pure or contingent.
The decedent's illegitimate children cannot The right of the heirs to the property vests
claim successional rights granted to illegitimate in them EVEN before judicial declaration of their
children in the New Civil Code because the decedent being heirs. Hence, when Barcena died, her claim or
died during the effectivity of the old code. right over the land in litigation was not extinguished
The provision in Art 2253 providing for by her death but transmitted to her heirs upon her
retroactive effect since they were declared for the death. The heirs acquired interests in the litigated
first time in the NCC will not apply because that is so property.
only when the new rights do not prejudice or impair
any vested or acquired right of the same origin.
Since the rights of the legitimate children already
SUCCESSION (BALANE) CHAMP © 2004
Notes -5-

Devisees / Legatees = persons to whom gifts of

real and personal property (respectively) are
ART 778. given by virtue of a will.
ART 779.
ART 780. ▪ Distinction between heir and devisee/legatee
important in preterition.
Succession may be ▪ Preterition effects:
1. testamentary The institution of an The institution of
2. intestate or legal heir is annulled legatees and devisees
3. mixed. remain effective to
the extent that
TESTAMENTARY INTESTATE / MIXED legitimes are not
LEGAL impaired.
779 Lost! 780
that which Takes place That effected Recall Castan:
results from by operation partly by will HEIR DEVISEE / LEGATEE
the of law in and partly by - one who succeeds to - one who succeeds to
designation of default of a operation of the whole or aliquot part definite, specific and
heir (or valid will. law of the inheritance individual properties
legatee or - by universal succession - by particular
devisee) HDL Combination of succession
= successor any two or all
of the other 3
- made in a kinds.
will, executed
in the form
prescribed by TESTAMENTARY SUCCESSION
law
The code is not logical. We should have started with
There should be a Fourth category to accommodate compulsory succession since it prevails over all the
the system of legitimes. other modes of succession.

▪ It is not under intestate succession because Testamentary succession = see Art 779.
intestate succession operates only in default of
a valid will. A legitime operates whether or not
there is a will and will prevail over a will. ART 783.
▪
COMPULSORY SUCCESSION What is a will?
(4TH KIND) 1. A will is an act whereby a person is
▪ Succession to legitimes permitted,
▪ Prevails over all other 2. Within the formalities prescribed by law,
kinds 3. To control to a certain degree the
disposition of his estate,
4. To take effect upon his death.

ART 781.
▪ Note: the will disposes only the free portion.
▪ Should have been deleted since the definition
of inheritance was already provided in 776. ▪ The will as an act is too broad a definition. It
▪ Inheritance includes ONLY those things should have been limited to only an instrument
enumerated in Art 776. or a document because to say act may include
▪ Whatever accrues to the heir after the nuncupative or oral wills, which are not
decedent's death (when succession opens), recognized in our Code.
belong to the heir by virtue of accession or ▪ To define it as an act would have been
ownership, not by virtue of succession. accurate under the Spanish Code because they
▪ Heir owns the accruals not by succession. allowed oral wills.
▪ To say that accruals are inherited is to negate ▪ [Exception: oral wills are allowed under Muslim
the principle in Art 777 that the transmission Personal Laws = testamentum nuncupativum]
takes place upon death.
Elements:
1. permitted – will making is purely statutory; a
ART 782. law may later on be passed prohibiting the
making of wills
Heir = a person called to the succession either 2. formalities – there are requirements as to the
by the provision of a will or by operation of law. form in cases of attested and holographic wills
 -6

3. control – the testator's power to dispose is

limited by the system of legitimes (which should What does purely personal mean?
go to the compulsory heirs) ▪ It means that the will-making is non-
4. after death – testamentary succession, similar to delegable.
all the 3 other kinds, is mortis causa. ▪ It must be done by the testator himself.

What cannot be delegated?

Vitug vs. CA ▪ The essence of a will.
Survivorship agreement in a bank account. ▪ i.e. the exercise of diposing power.
The survivorship agreement is a conveyance but it is
not a conveyance mortis causa. (It is not a will.) What is this essence or exercise of disposing power,
A will is a personal, solemn, revocable, and that is non-delegable?
free act by which a capacitated person disposes of ▪ Go to 785.
his property and rights and declares or complies with ▪ 785:
duties, to take effect after his death. 1. The designation of heirs, devisees
Neither is the survivorship agreement a or legatees (HDL)
donation inter vivos, because it was to take effect 2. The duration or efficacy of (such
upon death of one party. It is also not a donation designation)
between spouses, because it involved no conveyance 3. The determination of the portions
from one spouse to another. which they are to take (when
The survivorship agreement is in reality a referred to by name)
contract with a term, the term being death.
€ cannot be left to the discretion of a
BALANE: The survivorship agreement circumvents third person.
the law on legitimes. It may deprive the compulsory
heirs of legitimes.
ART 786.

CHARACTERISTICS OF A WILL General Rule: non-delegability of will-making.

1. PURELY PERSONAL - non-delegability of the Exception: 786. The testator may entrust to a
disposing power third person:
2. FREE AND - testator's consent 1. The DISTRIBUTION of specific property
INTELLIGENT should not be vitiated or sums of money
3. SOLEMN AND FORMAL - subject to formalities € that he may leave in general
under the law; depends or specified classes or causes,
on whether attested or and
holographic 2. The DESIGNATION of the persons,
4. REVOCABLE AND institutions or establishments
AMBULATORY € to which such property or
5. MORTIS CAUSA sums of money are to be given
or applied.
6. INDIVIDUAL - joint wills are
prohibited. NON-DELEGABLE DELEGABLE
7. EXECUTED WITH - (see Rizal's Mi Ultimo Must be by testator May be made by a third
ANIMUS TESTANDI Adios € not a will) himself person.
8. EXECUTED WITH ▪ Property or ▪ Manner of
TESTAMENTARY amount of money distribution
CAPACITY to be given (proportional to
9. UNILATERAL the total amount)
▪ Class or cause to ▪ Designation of
10. DISPOSITIVE OF - purpose of will making be benefited persons within
PROPERTY such previously
11. STATUTORY mentioned class or
cause (recipients)

ART 784.
ART 785. ART 787.

Making of will = strictly personal act. Testator may not make a testamentary
It cannot be disposition in a manner that:
▪ left (in whole or in part) to the discretion ▪ Another person has to determine whether
of a 3rd person, or or not it is to be operative.
▪ accomplished through the
instrumentality of an agent or attorney.
SUCCESSION (BALANE) CHAMP © 2004
Notes -7-

The article prohibits the delegation to a 3rd person ▪ Obviously the effects of a will operate only
the power to decide whether a disposition should at the time of death, because you don't
take effect or not. This is because in effect, the 3 rd make a will to take effect NOW!
person becomes the testator.
Art 794
This is entirely different from the acceptance or ▪ GR: In legacy or devise, the testator gives
renunciation by the heir as beneficiary. The heir has exactly the interest he has in the thing.
the freedom to accept or renounce the testamentary ▪ EX: He can give a lesser interest (794) or a
benefit. greater interest (929).

ART 788-794. ART 795.

RULES OF INTERPRETATION
The validity of a will as to its form
▪ Depends upon the observance of the law
Art 788 in force at the time it is made.
▪ Testacy is preferred to intestacy, since testacy
is the express will of the decedent, while Aspects of Validity of Will
intestacy is merely implied EXTRINSIC / INTRINSIC /
▪ Ut res magis valeat quam pereat. That the FORMAL VALIDITY SUBSTANTIVE VALIDITY
thing may rather be effective than be without Refers to the Refers to the substance
effect. € construction in favor of validity and requirement of form of the provisions
not nullity. Governing Law Governing Law
As to Time As to Time
Art 789 a. For Filipinos – at the a. For Filipinos – time of
▪ Ambiguity = capable of more than 1 meaning time of execution of will death
▪ Two kinds of ambiguity b. For Foreigners - same b. For Foreigners –
LATENT PATENT personal law
Latere = to be hidden Patere = to be open,
obvious, evident As to Place As to Place
Ambiguity that is not Ambiguity that is a. For Filipinos – law of a. For Filipinos –
obvious on the face of obvious on the fac of citizenship, domicile, Philippine law
the will the will residence, execution
IN EITHER CASE, the ambiguity of a will is NOT a place, or Philippines
ground to avoid it. It must be cleared up and b. For Foreigners – same b. For Foreigners –
resolved, not stricken down. Testacy is preferred to national law
intestacy. We must give effect to the testamentary
disposition.
How to deal (with ambiguities):
▪ We have to ascertain the intention of the ART 796-801
testator. TESTAMENTARY CAPACITY (Testamenti Factio)
▪ Any admissible and relevant evidence may
be used to clear up the meaning and Testamentary capacity
discover the intention of the testator, ACTIVE PASSIVE
EXCEPT oral declarations of the testator. Testamentifacion activa Inheriting by will
▪ You can use extrinsic evidence or intrinsic or testamentary capacity
evidence. Refers to the Refers to the
requirements for will requirments for
Art 790 making inheriting by a will
▪ General meaning
Who has testamentary capacity?
Art 791 ▪ Only a natural person.
▪ Because testacy gives the express will of the ▪ ART 796: All persons who are not
testator, we must apply integral expressly prohibited by law may make a
interpretation. will.

Art 792
▪ Severability or separability principle Disqualifications
1. Those under 18 (minors)
Art 793 ART 797: Persons of either sex under 18
▪ Article is problematic because it makes the years of age cannot make a will.
will speak as of the time it is made, and not
at the time of the decedent's death (which 2. Those of unsound mind
should be the case). ART 798: In order to make a will, it is
essential that the testator be of sound mind
at the time of its execution.
 -8

Is there a presumption of sanity (soundness of

What does unsound mind mean? mind)?
▪ The code does not say. ▪ Yes. The law presumes sanity. Hence, you
▪ BUT, we can use the definition of sound mind need not prove that you are sane.
in Art 799. ▪ ART 800: The law presumes that every
▪ Note: the law is interested in the legal person is of sound mind, in the absence of
consequences of the testator's mental capacity proof to the contrary.
or incapacity, not in the medical aspects of the ▪ But this is only rebuttable. It may still be
disease. overcome by other evidence.

What is of sound mind?

▪ ART 799: To be of sound mind: Who proves insanity?
€ it is NOT necessary that: ▪ ART 800: The burden of proof that the
a. the testator be in full testator was not of sound mind, at the
possession of all his reasoning time of making his dispositions, is:
faculties € on the person who opposes the probate
b. the testator’s mind be wholly of the will.
unbroken, unimpaired, or
unshattered by disease, injury
or other cause. When is there NO presumption of sanity € When is
there a presumption of insanity?
▪ € It is SUFFICIENT that the testator was 1. ART 800: But if the testator, one month or
able, at the time of making the will, to less, before making his will,
know: € was publicly known to be insane, the
a. the nature of the estate to be person who maintains the validity of the
disposed of will must prove that the testator made it
b. the proper objects of his during a lucid interval.
bounty, and
c. the character of the 2. [TORRES VS. LOPEZ] when the testator,
testamentary act a. while being placed under
guardianship for insanity , (under
Rule 93 or 101) executes the will,
Nature of Estate and
▪ testator should have a fairly accurate b. before said order has been lifted.
knowledge of what he owns
▪ The richer you are, the more liberal you ▪ As long there is a court order commitment for
interpret the requirement of law guardianship for insanity € there is a
presumption of insanity. When the order is
Objects of Bounty rescinded, there is no more presumption.
▪ Testator should know under ordinary ▪ Reason: when the question of insanity is put in
circumstances, who his relatives in the most issue in guardianship proceedings, the most
proximate degrees, are. that can be said is that it raises a presumption
▪ To give the testator a real option on whom to of incapacity to make a will. [TORRES VS.
give. LOPEZ]

Character of Testamentary Act

▪ Testator should know the legal nature of a will. When do you determine sanity or insanity?
▪ That he is executing a document that: ▪ At the time of making the will
a. disposes of his property gratuitously, and ▪ Regardless of any supervening cause
b. which would take affect upon his death.

RECAP ART 801.

▪ as long as the testator, at the time of making
the will, was capable of perceiving the 3 tests Supervening incapacity € does not invalidate
above, he has testamentary capacity, an effective will.
whatever else he has medically.
▪ A testator could be medically or mentally Nor is the will of an incapable € validated by
incapable but still testatmentarily capable, or supervening of capacity.
vice versa.

ART 802.
ART 800.
A married woman may make a will
▪ Without the consent of her husband, and
▪ Without the authority of the court.
SUCCESSION (BALANE) CHAMP © 2004
Notes -9-

ART 803. 1. the will was executed in a language

generally spoken in the place of execution.
A married woman may dispose by will And,
▪ All her separate property, and 2. the testator must be a native or resident of
▪ Her share of the CPG or ACP. such locality.

ART 805
ART 804. REQUIREMENTS FOR AN ATTESTED WILL

ATTESTED WILLS HOLOGRAPHIC WILLS Every will, other than a holographic will,
Articles 805, 806, 807, Articles 810, 811, 812, a) must be subscribed at the end thereof, by
808 813, 814 a. the testator himself, or
b. by the testator’s name written by some
What are the formal requirements for ATTESTED and other person
HOLOGRAPHIC wills? (COMMON REQUISITES) ▪ in his presence, and
1. Every will must be in writing, and ▪ by his express direction
2. Executed in a language or dialect known
to the testator. 2. and attested and subscribed by 3 or more
credible witnesses
Note: The will itself need not state that the language a. in the presence of the testator, and
is known to the testator. Compliance with the b. (in the presence) of one another.
language requirement may be shown by extrinsic
evidence. [LOPEZ VS. LIBORO] The testator, OR
The person requested by him to write his name,
The testator also need not know the language of the AND
attesting clause, since the attestation clause is the The instrumental witnesses, shall:
affair of witnesses only. ▪ also sign as aforesaid,
▪ each and every page thereof,
Requirement 1: In writing ▪ except the last,
▪ Anywhere written, by a typewriter, in pad ▪ on the left margin,
paper, even in a wall. ▪ and all the pages shall be numbered
▪ Oral or nuncupative wills are not allowed, correlatively in letters,
except for Muslims. ▪ placed on the upper part of each page.

Requirement 2: Language or dialect known The attestation shall state:

▪ Language = anything that may be written. 1. the number of pages used upon which the
Ilocano is a language. It has grammar, it has will is written, and
literature. It need not be a national language. 2. the fact that:
▪ Dialect = does not have a written form, no ▪ the testator signed the will and every
literature. page thereof,
▪ Presumption of compliance = that the testator ▪ or caused some other person to write
knew the language in which the will was his name
written. € under his express direction,
€ in the presence of the
instrumental witnesses, and
Suroza vs. Honrado 3. that the latter (instrumental witnesses)
Administrative action against a judge who witnessed and signed the will and all the
admitted to probate a will where it was written in pages thereof
English, but admits in the latter paragraphs that it € in the presence of the testator,
was translated in Filipino for the benefit of the € and of one another.
testator, and admits that the testator was illiterate.
That could only mean that the will was If the attestation clause is in a language not
written in a language not known to the illiterate known to the witnesses, it shall be interpreted
testator and is therefore void because of the to them.
mandatory provision of Art 804.

ART 806.
Abangan vs. Abangan
Will written in Cebuano dialect and executed Every will must be acknowledged before a
in Cebu by the testator. notary public by 1) the testator and, 2) the
In the absence of proof to the contrary, witnesses.
there is a presumption that she knew this dialect in
which the will was written. For the presumption to The notary public shall not be required*
apply, it must appear that: € to retain a copy of the will, or
 - 10

€ to file another with the office of the clerk of testator's name at his request. The absence of which
court. is not a fatal defect.

*to protect secrecy of the will and encourage will-

making. Is a cross considered a signature like thumbmark?
▪ No. [GARCIA vs. LACUESTA] It is unreliable.

Note: in effect, BOTH the testator and the witnesses, Garcia vs. Lacuesta
need not know the language of the attestation It is not pretended here that the cross
clause. appearing on the will is the usual signature of
Mercado. We are not prepared to like the mere sign
of a cross to a thumbmark, and the reason is
Must an attested will be dated? obvious. The cross cannot and does not have the
▪ Nope. No need. trustworthiness of a thumbmark.
BALANE: A cross is easy to falsify! Unless of course,
your usual signature is a cross.
Subscribed by the testator or his agent, (at the end
thereof)
▪ In his presence, and What must the agent write?
▪ By his express direction ▪ Agent need to write ONLY THE TESTATOR's
▪ In the presence of the witnesses NAME. (in his handwriting dapat!)
▪ That is all that is required for validity.
▪ He need not write his own name, or both their
Subscribing is not the same as signing. names.
▪ To subscribe = to write under
▪ To sign = to simply place a distinguishing
mark Barut vs. Cabacungan
▪ Signing is broader than subscribing. It is immaterial as to who writes the name
of the testator, provided that the the testator's name
The law should not be limited to subscribing. We is written at the testator's request and in the
include signing. testator's presence, and in the presence of all the
▪ This accommodates signing by thumbmark. witness to the execution of the will.
▪ A thumbmark is not a subscription but is valid It is unimportant whether the person who
signing. writes the name of the testator signs his own or not.
▪ The testator's thumbprint is always valid and It may be wise and practical that the one who signs
sufficient signature. [PAYAD VS. TOLENTINO] the testator's name also sign his own, but that is not
[MATIAS VS. SALUD] essential to the validity of the will. The law requires
▪ It validity of thumbmarks is not limited to only only three witnesses, not four. The main thing to be
cases of illness or infirmity. [DE GALA VS. established in the execution of the will is the
GONZALES] signature of the testator.

Payad vs. Tolentino Can the agent of the testaor be also one of the
The testator was assisted by his attorney, in witnesses?
placing his thumbmark on each and every page of ▪ If there are more than 3 witnesses – of
the will, and that said attorney merely wrote the course!
testator's name to indicate the place where the ▪ If there are exactly 3 – unsure!
testator placed said mark. In other words, the
attorney did not sign for the testator. This is valid
because the testator signed by placing his Where must the testator sign in the will?
thumbmark. ▪ At the end of the will.
A statute requiring a will to be signed is
satisfied if the signature is made by the testator's Where is the end of the will?
mark. Hence, it is not necessary that the attestation ▪ If the will contains only dispositive portions €
clause should state that the testator requested the then simply signed at the end.
attorney to sign for his name, inasmuch as the ▪ If the will contains both dispositive and non-
testator himself already signed the will, in dispositive portions € then either sign at the
accordance with law. Admitted to probate. 1. physical end, - where the writing stops,
or
2. logical end – where the last disposition
Matias vs. Salud ends
The legal requisite that the will should be € either valid.
signed by the testator is satisfied by the thumbprint
or other mark affixed by him. If such mark is affixed
by the decedent, it is unnecessary to state in the
attestation clause that another person wrote the champ.reyno © 2004
SUCCESSION (BALANE) CHAMP © 2004
Notes - 11 -

What is the effect of signing NOT at the end?

▪ It invalidates the ENTIRE attested will. Icasiano vs. Icasiano
▪ Because it violates the rule on 805. The failure of the witness to sign page 3 of
▪ Signing must be at the end. the original was due to the fact that he may have
lifted two pages instead of one when he signed the
same, but he admitted that page 3 was signed in his
What is the meaning of “Testator must sign in the presence.
presence of witness”? We hold that the inadvertent failure of one
▪ Actual seeing by the witnesses is not required, witness to affix his signature to one of the pages,
only the ability to see each other (the testator due to the simultaneous lifting of 2 pages in the
and the witnesses) by merely casting their course of signing, is not per se sufficient to justify
eyes in the proper direction is needed. denial of probate. The impossibility of substitution of
▪ [NERA VS. RIMANDO] this page is assured not only of the fact that the
testator and two other witnesses did sign the
Nera vs. Rimando questioned page, but also by its bearing the
The true test of the presence of the testator coincident imprint of the seal of the notary.
and the witnesses in the execution of the will is not The law should not be strictly and literally
whether they actually saw each other sign, but interpreted where the purpose of the law is to
whether they might have seen each other sign, had guarantee the identity of the testament and its
they chosen to do so, considering their mental and pages is sufficiently attained. No intentional or
physical condition, and the position with relation to deliberate deviation existed. Otherwise, the
each other at the moment of signing. witnesses may sabotage the will by muddling or
The position of the parties in relation to bungling it or the attestation clause.
each other at the moment of signing must be such It was pure oversight and satisfies the
that they may see each other sign if they choose to requirements in order to guard against fraud and bad
do so. faith, without undue or unnecessary curtailment of
It is sufficient that a witness was actually the testamentary privilege.
and physically present and in such position that he
could see everything that took place by merely BALANE: This ruling should not be interpreted that
casting his eyes in the proper direction and witnesses may dispense with singing each and every
without any physical obstruction to prevent his page of the will. Icasiano ruling is not recommended.
doing so. It does not depend upon proof that that
their eyes were actually cast upon the document at
the moment of subscription by each of them. How about the witnesses, where must they sign?
Admitted to probate. ▪ Witnesses must sign every page except the
last,
▪ In the presence of the testator and of one
What must the witnesses do? another.
1. attest – the act of witnessing, and
2. subscribe – the act of signing their names
*both must be done. Is there an order for signing?
▪ It is immaterial where the signing is done in a
single transaction.
May the witness sign by thumbmark also, like the ▪ It is material when the signing is done in
testator? several transactions. € In which case, the
▪ Debatable. Although many contend that it is testator must affix his signature ahead of the
not allowed since witnesses must be able to witnesses.
read and write. (820) ▪ Note: if the acknowledgement is done by the
testator and the witnesses separately, all of
them must retain their respective capacities
Again, where must the testator or his agent sign? until the last one has acknowledged!
▪ At each and every page thereof, on the left
margin,
▪ Except the last page € because it already How about pagination?
contains the testator's signature (see above) ▪ Page must be numbered correlatively in
letters, in the upper part of each page.
MANDATORY DIRECTORY
What is mandatory and what is merely directory in Pagination by means of Pagination in letters
signing? the conventional system Pagination in upper part
MANDATORY DIRECTORY (roman numerals,
Signing on every page Place of signing Arabic, greek, letters,
In the presence of (margins), it can be words, etc.)
witnesses anywhere. *In the
1950's typewriters had
only left margins. Must the testator sign the attestation clause?
▪ Nope. Is the affair of the witnesses.
 - 12

Where must the signatures of the witnesses in the is thereafter required is that the will must be
attestation clause be? Bottom or Left margin? acknowledged before a notary public.
▪ Must be at the bottom [CAGRO VS. CAGRO] The subsequent singing and sealing by the
notary is not part of the testamentary act. Hence,
their separate execution out of the presence of the
Cagro vs. Cagro testator and the witnesses cannot be said to violate
The attestation clause is not signed by the the rule that the testament should be completed
attesting witnesses where the signatures of the 3 without interruption.
witnesses do not appear at the bottom of the OBITER: Art 806 does not contain words
attestation clause, even if the page is signed by the requiring that the testator and the witnesses should
witnesses on the left hand margin. acknowledge the testament on the same day or
An unsigned attestation clause cannot be occasion that it was executed.
considered as an act of the witnesses, since the
omission of their signatures at the bottom negatives
their participation. May the notary public be also counted as a witness?
The signing at the left hand margin is not ▪ Definitely NOT. [CRUZ VS. VILLASOR]
substantial compliance because if the attestation
clause is not signed at the bottom, it would be easy Cruz vs. Villasor
to add such clause to a will on a subsequent occasion The notary public before whom the will was
even in the absence of the testator or any or all of acknowledged cannot be considered as the 3rd
the witnesses. instrumental witness since he cannot acknowledge
before himself his having signed the will. To
Bautista Angelo, dissent: acknowledge means to avow, in front or before. If
There is substantial compliance. The the 3rd witness were a notary public himself, he
objection is too technical to be entertained. The would have to avow, assent, or admit his having
purpose of the law which is to avoid the substitution signed the will in front of himself! He cannot do this
of the pages has already been accomplished, since because he cannot split his personality into two so
the fear of substitution has been obviated by the that one will appearing before the other acknowledge
uncontradicted testimony of the witnesses. his participation in the will. For he would be
interested in sustaining the validity of his own act.
Balane, concurring: US cases are not applicable since there, a
It is safer to sign at the bottom. notary is merely an instrumental witness, not an
acknowledging witness. Probate denied.

Note: RECAP:
▪ If there is only one page for the will, and ▪ May a notary public be an attesting witness?
another page for the attestation, there is no Yes.
need for marginal signatures. Since on the first ▪ If a notary public is also the witness, does it
page, the testator signs at the bottom, and the invalidate the will?
witnesses may also sign below. At the second No. If there are 3 more.
page, the attestation clause is signed at the ▪ So it simply means that, a notary public who
bottom by the witnesses. is also a witness is simply not counted as a
witness.

What is the last requirement for attested wills?

▪ Acknowledgement by the notary public ART 807,
▪ Notarization = it becomes a public document, ART 808.
and prima facie true. SPECIAL REQUIREMENTS FOR HANDICAPPED
▪ Note: at this time, all the parties must still TESTATORS
have capacity.
If testator is
Must the notary public acknowledge in the presence DEAF OR DEAF-MUTE BLIND
of the testator and the witnesses? If able to If unable to The will shall be
▪ No. [JAVELLANA VS. LEDESMA] read read read to him
He must He shall twice.
personally designate
Javellana vs. Ledesma read the two persons Once — by one of
Whether or not the notary signed the will. to read it the subscribing
certification or acknowledgement in the presence of and witnesses, and
the testator and the witnesses does not affect the communicate
validity of the will (codicil). The NCC does not require to him, in Again — by the
that the signing of the testator, witnesses and the some notary public
notary be accomplished all in one single act. practicable before whom
The NCC requires that the testator and the manner, the the will is
witnesses sign in the presence of each other. All that contents acknowledged.
thereof.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 13 -

Clear from the foregoing is that Art 808

applies not only to blind testators, but also for those
Garcia vs. Vasquez who are incapable of reading their wills. The testator
The testimony of the ophthalmologist who comes within the meaning of “blind” as it is used in
has first had knowledge of the actual condition of her 808.
eyesight was that her vision remained mainly for
viewing distant objects and not for reading print.
Thus conclusion is inescapable that she was ART 809.
incapable of reading and could not have read the RULE OF SUBSTANTIAL COMPLIANCE
provisions of the will supposedly signed by her. The
instrumental witnesses stated that she merely read In the absence of:
the instrument “silently.” She therefore could not ▪ Bad faith,
see at normal reading distance. ▪ Forgery
The rationale behind the requirement for ▪ Fraud
reading the will to the testator if he is blind or ▪ Undue and improper pressure and
incapable of reading the will himself (as when he is influence,
illiterate) is to make the provisions thereof known to
him, so that he may be able to object if they are not Defects and Imperfections, in the:
in accordance with his wishes. a) from of attestation, or
The aim of the law is to insure that the b) in the language used therein,
dispositions in the will are properly communicated to
and understood by the handicapped testator, thus € shall not render the will invalid € If it is
making them truly reflective of his desire. Hence, not proved that:
only must the will be read to him once, but must be ▪ the will was in fact executed and
twice by two different persons (the witness, and the attested in substantial compliance
notary) with all the requirements of 805.

Balane: These are protective measures because it is

easy to fool a blind person. JBL Reyes: a liberalization running riot!
Balane: an attempt to temper or liberalize the
Note: strictness of the formal requirements of attested
▪ It is not required that the attestation clause wills!
expressly state the Art 808 was complied
with. Proponent has burden of proof. ▪ This article does not provide sufficient guidelines
▪ BUT, Art 808 and 807 (by evident analogy), to limit the discretion of the judge in deciding
are still mandatory. Failure to comply with compliance. The Judge is clueless as to how
either results in the nullity or denial of liberal he can be.
probate.
Remedy by Justice JBL Reyes:
▪ If the defects or imperfections can be supplied
Alvarado vs. Gaviola by an examination of the will itself, and it is
Art 808 was substantially complied with proved that the will was in fact executed and
when the documents were read aloud to the testator attested in substantial compliance with all the
by the lawyer, once only, with each of the three requirements of 805 € will valid. [CANEDA
instrumental witnesses and the notary public merely vs. CA]
following the reading with their respective copies of ▪ Ex. If the attestation clause fails to state the
the instrument. fact that the testator signed each and every
There was substantial compliance since its page thereof € be liberal. You can easily
purpose of making known to the testator the verify these facts upon visual examination of
contents of the will was served. It was not the first the will.
time that the testator affirmed the truth and ▪ Ex. If the attestation clause fails to state that
authenticity of the contents of the will. He had earlier the witnesses signed in each other's presence
already acknowledged the will in accordance with his € be careful. This might be a fatal flaw.
express wishes when the draft was sent to him. We
can safely conclude that the testator was reasonably
assured that what was read to him were the terms Caneda vs. CA
actually appearing on the documents. Art 809 must be limited to disregarding only
The spirit of the law was served, though the those defects that can be supplied by an
letter was not. It was not the object of the law to examination of the will itself, such as:
restrain or curtail the exercise of the right to make a ▪ whether all the pages are numbered
will. ▪ whether the signatures appear in each and
every page, and
▪ whether the subscribing witness were really
Notably, Alvarado was not totally blind at the time three, or
the will was executed. He was capable of counting ▪ the will was itself notarized.
fingers at 3 feet, hence merely poor eyesight.
 - 14

All these are facts that the will itself can reveal, and Roxas vs. De Jesus
the defects or even omissions concerning them in Will merely had the date, Feb./61. Since the
the attestation clause can safely be disregarded. present NCC did not expressly provide for “aÑo,
mes y dia” and merely required that the will be
But: dated, this is valid. Liberal construction of the
▪ the total number of pages, and holographic will should prevail.
▪ whether all persons required to sign did so in The complete date is required merely to
the presence of each other (even if three provide against such contingencies as that of two
persons signed, it is not sure if they signed in competing wills executed on the same day, or of
the presence of one another!) the testator becoming insane on the day on which
€ must substantially appear in the attestation a will was executed. In this case, there is no such
clause, being the only check against perjury. contingency.
There appearing no fraud, bad faith, or
Omissions which can be supplied by mere undue influence, and the authenticity of the will is
examination of will itself, without need of resorting already established, the date, “Feb./61” is valid
to extrinsic evidence is not fatal. compliance.

Omissions which cannot be supplied except by Balane, dissent: The date must be complete! “El
evidence aliunde would result in the invalidation of aÑo, mes, y dia!” The only saving grace in the case
the attestation clause, and ultimately the will itself. was that no fraud or bad faith existed. But the
general rule should be that it must be a complete
date, that is, include the day, month and year of its
ART 810. execution.
REQUIREMENTS FOR A HOLOGRAPHIC WILL

A person may execute a holographic will which: Where must the date be placed?
a. must be entirely written, ▪ Oh anywhere. The beginning, middle or end
b. dated, and € that will do…
c. signed by the hand of the testator ▪ [LABRADOR VS. CA] € the date was in the
himself. contents of the will

It is subject to
d. no other form, and Labrador vs. CA
e. May be made in or out of the The law does not specify a particular
Philippines, and location where the date should be placed in the will.
f. Need not be witnessed. The only requirement is that the date be in the will
itself and executed in the hand of the testator.

Holographic wills are the soul of simplicity. Where must the testator sign the will?
ADVANTAGES DISADVANTAGES ▪ At the logical end, as implied from 812.
Secrecy Danger of forgery,
Inexpensiveness Greater difficulty of How must the testator sign the will?
determining ▪ By the hand of the testator.
testamentary capacity ▪ Can it be by thumbmark?
Brevity Increased risk of duress The article does not seem to permit this, kasi
nga hand!

Must the entire holographic will be handwritten?

What is the effect of non-compliance? ART 811.
▪ YES. If only part is handwritten and the other
parts are not, then the entire will is void. In the probate of a (uncontested) holographic
will, it shall be necessary that:
▪ At least ONE witness, who knows the
How must you date the holographic will? handwriting and signature of the testator,
▪ Any form. € explicitly declare that the will and the
▪ It may be December 25, 2004. 25 December signature are in the handwriting of the
2004, 12/25/04, 25/XII/2004. Christmas Day, testator.
2004. Bastille Day, 2005. Feast of St. Ignatius,
2003. The 50th anniversary of World War II, If the will is contested:
etc. ▪ At least THREE of such witnesses shall be
▪ As long as there is a generally known feast, or required.
historic event that can be verified and a. In the absence of any competent witness
checked. referred to in the preceding paragraph,
AND
b. If the Court deems it necessary
€ expert testimony may be resorted to.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 15 -

Comparison of Codoy and Azaola by Balane:

Notes: ▪ Conventional wisdom tells us Codoy overruled
▪ Art 811 is a rule of evidence. Azaola.
▪ It merely states that to determine the validity ▪ But looking it at again, there is no such
of the holographic will, it requires the overruling because all the witnesses in Codoy
presentation of the will itself. were useless! The reason for denying probate
▪ This article applies only to post mortem in Codoy was NOT really because there were
probates, since in ante mortem probate, the less than 3 witnesses, but because of the poor
testator himself can sufficiently identify the quality of the testimony of the remaining
document himself. witnesses! (yung 2 na natira!) .
▪ Hence, the Azaola case is still preserved, and
the rule requiring 3 witnesses is not really
What is a contested holographic will? mandatory.
▪ That which a ground for opposition is based on
the allegation that the will is not written by the
testator himself. Must the will itself be produced for probate?
▪ That which the genuineness of the signature is ▪ Although Art 811 does not expressly says so,
in issue. the case of [GAN VS. YAP] adds the additional
▪ It does NOT refer to grounds of fraud, or requirement. [SCAEVOLA]
vitiation of consent. ▪ In the probate of a holographic will, the
document itself must be produced.
UNCONTESTED CONTESTED ▪ If the holographic will is lost, then the will
HOLOGRAPHIC WILL HOLOGRAPHIC WILL cannot be probated anymore.
Only one (1) witness Three (3) witnesses are ▪ Except: If there is copy of the holographic will
necessary to declare required. left. [RODELAS VS. ARANZA]
handwriting of testator.
Two views: Gan vs. Yap
Mandatory 3 – [CODOY] Authenticity and due execution is the
Directory – [AZAOLA] dominant requirement to be fulfilled when such will
is submitted to the courts for allowance. In the
Balane: The credibility of matter of holographic wills since they need no
witnesses does not witnesses, it is reasonable to suppose that the law
depend on the numbers, regards the document itself as material proof of
but on the intrinsic authenticity and as its own safeguard since it could
quality of their be demonstrated that it was or was not in the hands
testimonies. of the testator himself.
The witnesses so presented do not need to
have seen the execution of the holographic will. They
Azaola vs. Singson may be mistaken in their opinion of the handwriting,
Since the authenticity of the will was not or they may deliberately lie in affirming it as the
contested, he was not required to produce more than testator's hand. The court itself may, in view of such
one witness. BUT, even if the genuineness of the will contradictory testimony may use its own visual
was contested, our NCC cannot be interpreted as to sense, and decide in the face of the document.
require the compulsory presentation of 3 witnesses Obviously, when the will itself is not
to identify the handwriting of the testator. submitted, these means of opposition and of
Since no witnesses may have been present assessing the evidence are not available. Then the
at the execution of the will, (there being none only guarantee of authenticity (the testator's
required by law), it becomes obvious that the handwriting), has disappeared.
existence of witnesses possessing the requisite
qualifications is a matter beyond the control of the
proponent. ATTESTED WILL HOLOGRAPHIC WILL
There may be no available witness May be proved by The only guarantee of
acquainted with the testator's hand, or even if testimonial evidence authenticity is the
available, is unwilling to testify. Hence, compliance when lost or destroyed handwriting itself
with the Art 811 may become an impossibility. (secondary evidence)
Anyway, expert testimony may be resorted The testimony of the Loss of holographic will
to if the court deems it necessary. subscribing witnesses entails the loss of the
shows the authenticity. only medium of proof
The loss of original € Here, there is a
Codoy vs. Calugay the subscribing possibility that only one
The language used in 811 is mandatory. witnesses are available man could engineer the
The word “shall” connotes mandatory order. to authenticate. whole fraud.
It is quite hard to (Oppositors have no way
convince 3 witnesses and to expose the errors
the notary to deliberately because the document
lie. itself is not at hand.
 - 16

ART 814.

Rodelas vs. Aranza In case of any:

A photostatic copy or xerox copy of the a. insertion
holographic will may be allowed probate because b. cancellation in the holographic will
comparison can be made with the standard writings c. erasure, or
of the testator. As recognized in the Gan ruling, d. alteration
footnote 8, a lost holographic will may still be proved
by a photographic or photostatic copy. € the testator must authenticate the same by
Even a mimeographed or carbon copy, or his full signature.
other similar means, if any, of determining the
authenticity of the handwriting of the deceased may What does full signature mean? How does the
be exhibited and tested before the probate court. testator countersign?
Hence, the xerox copy of a lost or destroyed ▪ By his usual and customary signature
holographic will may be admitted because then the ▪ Not necessarily by the testator's full name
authenticity of the handwriting of the deceased can
be determined by the probate court. What if the testator does not authenticate or
countersign the errors?
Balane, Dissent: Xerox copies are not accurate ▪ The change is simply considered not made.
because there the “penlifts” would no longer be ▪ The will is NOT entirely invalidated or
identifiable. (pen-strokes). invalidated as a whole.

So the erroneous portions are invalidated?

ART 812. ▪ Generally yes.
▪ Exception: When the portion involved is an
In holographic wills, essential part of the will (such as a date €
▪ The dispositions of the testator since it is required of holographic wills), then
▪ Written below his signature the error is also voided. [KALAW VS. RELOVA]

€ must be dated and signed by him Kalaw vs. Relova

▪ In order to make them valid as Ordinarily, when a number of erasures,
testamentary dispositions. 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
ART 813. whole, but at most only as respects the particular
words erased, corrected or interlined.
When a number of dispositions appear in a However in this case, the holographic will
holographic will had only one (1) substantial provisions, which was
▪ Are signed without being dated, and altered by substituting the original heir with another,
▪ The last disposition has a signature and and such alteration did not carry the requisite
date, authentication by the full signature of the testator.
The effect must be that the entire will is voided or
€ such date validates the dispositions revoked for the simple reason that nothing remains
preceding it, whatever be the time of prior in the will after that which could remain valid.
dispositions.

ART 815.
What are the requirements for each additional FILIPINO ABROAD
dispositions (in holographic wills)?
a. signature When a Filipino is in a foreign country,
b. date ▪ he is authorized to make a will in any of
the forms established by the law of the
country in which he may be.
What if there are many additional dispositions (in a
▪ Such will may be probated in the
holographic will), how may the signature and date be Philippines.
placed?
1) signature and date, OR
2) each additional disposition signed and ART 816.
undated € but the last disposition must be ALIEN ABROAD
signed and dated.
3) If in case of several additional dispositions, The will of an alien who is abroad,
before the last one are dated but not ▪ Produces effect in the Philippines,
signed, only the last will be valid if the last ▪ If made with the formalities prescribed by
is signed and dated. a. the law of the place in which he
resides, or
SUCCESSION (BALANE) CHAMP © 2004
Notes - 17 -

b. according to the formalities ▪ in the case of husband and wife, if the

observed in his country, or will is made jointly, the spouse who is
c. in conformity with those which more aggressive, stronger in will or
This Code prescribes. character is liable to dictate the terms
of the will for his or her benefit
▪ also, in case of reciprocal wills (where
ART 817. the whole property of one spouse goes
ALIEN IN THE PHILIPPINES to the surviving spouse, there may be
the temptation to kill or dispose of the
A will made in the Philippines by a citizen or other. [DACANAY VS. FLORENDO]
subject of another country,
▪ which is executed in accordance with the Are reciprocal wills valid?
law of the country in which he is a citizen ▪ Valid.
or subject, AND ▪ One spouse, for example, may give to the
▪ which might be proved and allowed by other spouse as a successor.
the law of his country ▪ BUT€ the will must be written in two separate
€ shall have the same effect as if executed documents.
according to the laws of the Philippines.

ART 819.
Summary for Filipino or Alien € What Will Govern
the Formal Validity of his Will, in order that it may be Wills, prohibited by the preceding paragraph
probated in the Philippines? (joint wills)
▪ Executed by Filipinos in a foreign country
1. the law of his citizenship € shall not be valid in the Philippines
2. the law of the place of execution ▪ Even though authorized by the laws of the
3. the law of his domicile country where they may have been
4. the law of his residence executed.
5. the law of the Philippines

Summarize the rule on joint wills.

ART 818. BY WHOM STATUS
JOINT WILLS Executed by Filipinos in VOID
the Philippines
Two or more persons Executed by Filipinos VOID (as an exception
▪ cannot make a will jointly, or abroad to Art 815)
▪ in the same instrument, Executed by aliens Art 816
abroad
Either: Executed by aliens in Controverted. Either
▪ for their reciprocal benefit, or the Philippines Void because of public
▪ for the benefit of a third person. policy or valid according
to Art 817
Executed by a Filipino Filipino – always void
What is a joint will? and an alien Alien – either Art 816,
a) It is ONE DOCUMENT, which constitutes the or void because of
will of two or more individuals public policy, or Art 817.
b) Such document functions as the will or two or
more persons
c) A joint will has nothing to do with “joint
testamentary dispositions” € it simply means WITNESSES TO (ATTESTED) WILLS
one document only!!
d) Joint wills are void. ART 820.
ART 821.
Are joint wills void? QUALIFICATION / DISQUALIFICATION OF
▪ YES. They are void. WITNESSES
Why are joint wills void?
1. it limits the modes of revocation (ex. the Any person:
revocation by physical destruction would not be 1. of sound mind,
possible because one testator may not revoke 2. of the age of 18 years or more,
his will (by destruction) without also revoking 3. not blind, deaf or dumb,
the will of the other testator. 4. able to read and write,
2. diminution of testamentary secrecy € may be a witness to the execution of a will
3. danger of undue influence mentioned in Art. 805.
4. danger of one testator killing the other
 - 18

The following are disqualified from being ART 822.

witnesses to a will:
1. any person not domiciled in the If the witnesses attesting the execution of a
Philippines. will are
2. Those who have been convicted of: ▪ Competent at the time of attesting
i. falsification of a document, Their becoming subsequently incompetent shall
ii. perjury, or not prevent the allowance of the wil.
iii. false testimony

These provisions apply only to attested wills. When should the witness be qualified?
▪ At the time of attesting.
What are the six qualifications of witnesses in ▪ Juridical capacity of the witnesses are
attested wills? determined at the time of the act, (the
1. sound mind execution of the will)
▪ because attestation is an act of the ▪ This is the only temporal criterion in the
senses determination of the competence of the
2. at least 18 years old witness
3. not blind, deaf, dumb
▪ dumb = mute! (not someone
stupid) ART 823.
4. able to read and write
5. domiciled in Phils. If a person attests to the execution of a will,
▪ Citizenship is not a factor ▪ To whom, or
▪ Domicile = because of the great ▪ To whose spouse, parent or child,
probability of being called by the € a device or legacy is given by such will,
court to be a witness
6. must not have been convicted of such devise or legacy shall, so far as concerns
falsification of document, perjury, or false such person, spouse, parent or child of such
testimony. person, or
▪ Conviction has to be by final
judgment anyone claiming under such person, or
▪ These are crimes affecting spouse, or parent or child,
credibility / trustworthiness of a
person (so it's still ok if you're € shall be VOID,
convicted of murder, rape € you Unless there are 3 other competent witnesses
can still be honest!) to such will.

However such person so attesting shall be

Gonzales vs. Court of Appeals admitted as a witness as if such devise or
Petitioner contends that the term credible is legacy had not been made or given.
not synonymous with the term competent and that
the term credible should be interpreted as in the
Naturalization Law. ▪ This is a misplaced article since it is concerned
There is no mandatory requirement that the not with a qualification of a witness to be a
witness testify to his good standing in the witness but his capacity to succeed. (refer to Art
community. It is enough that the qualifications under 1027)
Article 820 are complied with. We reject the
contention that it must first be established in the When is a witness disqualified to succeed to legacy
record the good standing of the witnesses in the or devise?
community, his reputation for trustworthiness and ▪ When there are only 3 witnesses.
reliability, his honesty and uprightness, because such
attributes are presumed of the witness unless the
contrary is proved otherwise by opposing party. Is the will void?
In fine, the rule is that the instrumental ▪ No. No. No. Not entirely void.
witness in order to be competent must be shown to ▪ The competence of the person as a witness is
have the qualifications under 820 and none of the not affected. The will is perfectly valid but the
disqualifications under 821. For their testimony to be witness (or relatives) cannot inherit.
credible, it only needs to be worthy of belief and ▪ They are counted as part of the 3 witnesses and
entitled to credence, it is not mandatory that the valid as to the other dispositions.
evidence be first established on record that the
witnesses have a good standing in the community or
that they are honest and upright. For a person is Does this provision apply only to devisees and
presumed to be such unless the contrary is legatees?
established. ▪ No. The disqualification to succeed (not to
witness) extends as well to the heirs.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 19 -

▪ The intent of the law is to cover all If a will, executed as required by this Code,
testamentary institutions € incorporates into itself by reference
▪ The disqualification applies to testamentary ▪ Any document or paper
dispositions made in favor of the witnesses or Such document or paper shall not be
the specified relatives. considered as part of the will unless the
▪ Hence, if the party is also entitled to a legitime following requisites are present:
or intestate share, he will be able to succeed,
and that portion is not affected by the party's
witnessing the will. So can a will make reference to documents or
papers? How will they become valid part of the will?
▪ Yes.
ART 824. ▪ The following requisites must concur: Art 827:
1. The document or paper referred to in
A mere charge on the estate of the testator for the will must be in existence at the
the payment of debts due at the time of the time of the execution of the will
testator’s death does not prevent his creditors (it must ante-date the will)
from being competent witnesses to his will.
2. The will must clearly describe and
May creditors be witnesses? identify the same, stating among
▪ Absolutely yes. other things the number of pages
▪ This is because the creditors do not inherit, the thereof.
payment of their claims is not a testamentary
disposition. 3. It must be identified (during probate) by
clear and satisfactory proof as the
document or paper referred to
therein, and
ART 825.
ART 826. 4. It must be signed by the testator and
CODICILS AND INCORPORATION BY the witnesses on each and every
REFERENCE page, except in case of voluminous
books of account or inventories.

What is a codicil?
▪ Art 825: A codicil is ▪ What is one very important requirement for
a) a supplement or addition to a will the attached documents to be valid?
b) made after the execution of a will 5. The documents, inventories, books of
c) annexed to be taken as a part thereof accounts, documents of titles and
d) by which any disposition made in the other papers of similar nature should
original is Explained, Added to, or under no circumstances, make
Altered. testamentary dispositions.
▪ The incorporated document or paper
must not make testamentary
Are codicils valid? dispositions € only a will can do so.
▪ Yes, provided Art 826:
In order that a codicil may be effective, it Can holographic wills incorporate documents by
shall be executed as in the case of a will. reference?
▪ It seems not.
▪ Since the article requires the signatures of the
How are codicils and subsequent wills different? testator AND the witnesses on EVERY page of
CODICILS SUBSEQUENT WILLS the incorporated document, it seems that only
Merely explains, adds to, Makes separate and attested wills can incorporate documents by
or alters a disposition in independent and distinct reference, since only attested wills are
a prior will dispositions witnessed.
*the distinction is academic because a codicil follows
the form of a will anyway. ART 828.
REVOCATION OF WILLS AND TESTAMENTARY
Must the codicil conform to the form of the will to DISPOSITIONS
which it refers?
▪ No. A will may be revoked by the testator at any
▪ An attested will may have a holographic time before his death. Any waiver or restriction
codicil; of this right is void.
▪ A holographic will may have an attested codicil
May a will be revoked by the testator?
▪ Yes. At his pleasure during his lifetime.
ART 827. ▪ There is no such thing as an irrevocable will.
(related to Art 834)
 - 20

▪ The right to revoke cannot be waived by the d. transformation, alienation, loss of object
testator. bequeathed (legacy or devise)
e. judicial demand of credit given as a legacy
Why is revocation allowed?
▪ Because according to Article 777,
successional rights vest only upon death. What is revocation by subsequent will? Requisites.
1. the subsequent will must comply with the
formal requirements of a will
ART 829, 2. the testator must possess testamentary
capacity
A revocation done outside the Philippines 3. the subsequent will must either contain
▪ By a person who does not have his ▪ express revocatory clause, or
domicile in this country ▪ implied (or be incompatible with the
€ is valid prior will) *see Art 831.
when it is done: 4. that such subsequent will be also probated
1. according to the law of the [MOLO VS. MOLO]
place where the will was made, 5. * see Art 832.
OR
2. according to the law of the
place in which the testator had What is revocation by physical destruction?
his domicile at the time time. a) burning
b) tearing
If the revocation takes place in this country c) canceling
▪ (it is valid) when it is in accordance with d) obliterating
the provisions of this Code. *this covers the entire gamut of destruction (ie,
nuclear bomb, flushing in the toilet)

Summarize the rules on revocation: How must physical destruction be done?

MADE IN THE MADE OUTSIDE THE PHILIPPINES ▪ ART 830: with the intention of revoking it
PHILIPPINES a. the testator himself,
Follow Domiciled in Not Domiciled b. or by some other person, in
Philippine law RP in RP his presence and by his
▪ Follow RP ▪ Follow law express direction.
law of place of
▪ Follow execution How do you show the testator's intention to
place of ▪ Follow law revoke by physical destruction?
revocation of place Corpus ▪ the physical destruction itself;
▪ Follow where ▪ there must be evidence of physical
place of testator destruction
execution domiciled
at time of Animus a) capacity and intent to revoke
revocation b) the testator must have completed
everything he intended to do – a
completed and finished intention
How may wills be revoked? What are the modes of such as throwing it in the trash
revoking a will under Philippine law? can (nothing left for him to do)
▪ ART 830: No will shall be revoked except * the corpus and animus must concur to produce
in the following causes: a valid revocation by physical destruction
1. By implication of law
(by operation of law)
What is the effect of unauthorized physical
2. by some will, codicil, or other destruction?
writing executed as provided in ▪ ART 830: If burned, torn, cancelled, or
case of wills obliterated by some other person,
(by subsequent will or codicil) without the express direction of the
testator
3. by burning, tearing, canceling, ▪ € the will may still be established, and
or obliterating the will. ▪ € the estate distributed in accordance
(by physical destruction) therewith, provided…

What is revocation by operation of law?

a. preterition
b. legal separation
c. unworthiness to succeed
SUCCESSION (BALANE) CHAMP © 2004
Notes - 21 -

What are the provisos? revocation and cancellation of wills. The fact that
▪ ART 830: If its such cancellation or revocation has taken place must
a. contents, be inferred from evidence showing that after due
b. due execution, and search, the original will cannot be found.
c. the fact of its unauthorized Where a will which cannot be found is
destruction, cancellation or shown to have been in the possession of the
obliteration testator, when last seen, the presumption is, in the
€ are established according to the Rules of absence of other competent evidence, that the same
Court. 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
So the physically destroyed will may still be death.
probated? Note that the force of the presumption of
▪ Yes. But Art 830 refers only to an attested cancellation or revocation is not conclusive, it may
will. be overcome by proof that the will was NOT
destroyed or revoked by the testator with the
LOST OR LOST OR requisite intention.
UNAUTHORIZED UNAUTHORIZED
DESTRUCTION DESTRUCTION
ATTESTED WILL HOLOGRAPHIC WILL ART 831.
May still be established GR: May no longer be ART 832.
by secondary evidence probated REVOCATION BY SUBSEQUENT WILLS
according to the Rules of [GAN VS. YAP]
Court Subsequent will which do not revoke the
Except: Unless a copy previous ones in an express manner
survives [RODELAS VS. € annul only such dispositions in the prior
ARANZA] wills as a inconsistent with or contrary to
those contained in the later wills.

What is another important requisite for revocation Again, how may revocation be done by subsequent
for all kinds? will?
▪ The testator must have capacity to revoke. ▪ It must contain either an express revocatory
▪ This is the same as the testamentary clause, or an implied one through
capacity. incompatibility.
▪ The execution of a subsequent will does not
ipso facto revoke a prior one!
Estate of Maloto vs. CA
It is clear that the physical destruction of a ART 832: A Revocation made in a subsequent
will, like burning in this case, does not per se will shall take effect, even if the new will
constitute an effective revocation, unless the should become inoperative by reason of the
destruction is coupled with animus revocandi on the incapacity of the heirs, devisees, or legatees
part of the testator. It is not imperative that the designated therein, or by their renunciation.
physical destruction be done by the testator himself.
It may be performed by another person but under So what is the effect of revocation by subsequent
the express direction and in the presence of the will?
testator. ▪ The first will remains revoked.
In this case, the animus revocandi, or ▪ Revocation is an absolute provision.
intention to revoke is only one of the necessary ▪ It is independent of the acceptance or
elements for the effective revocation of wills. The capacity of the new heirs.
intention to revoke must be accompanied by the ▪ The efficacy of the revocatory clause does not
overt physical act of burning, tearing, obliterating, or depend on the testamentary dispositions of
canceling the will. the revoking willl, unless the testator so
It was not sufficiently established that the provides.
papers burned by the maid was the a will of the
deceased. Even so, the burning was not proven to be GR: The first is forever revoked.
done under the express direction of the testator and Except: When the testator provides in the
not in her presence. subsequent will that the revocation of the prior one
is dependent on the capacity or acceptance of the
H,D,L instituted in the subsequent will € first will is
Is there a presumption of revocation? not necessarily revoked.
▪ Yes. In the case of [GAGO VS. MAMUYAC]
This exception is called “dependent relative
Gago vs. Mamuyac revocation” or “conditional revocation”.
The law does not require any evidence of
the revocation or cancellation to be preserved. It
therefore becomes difficult at times to prove the
 - 22

What Is this Dependent Relative Revocation? [MOLO revocation is null and void € the first will
VS. MOLO] subsists.
▪ The failure of the new testamentary
disposition, upon whose validity the What are the requisites for the nullification of the
revocation depends, is equivalent to the non- revocation?
fulfillment of a suspensive condition, and a) the cause must be concrete, factual, and not
hence, prevents the revocation of the original purely subjective
will. [this means that to have a valid revocation,
▪ The revocation of the first will is considered the cause must be totally subjective (blind and
conditional and dependent upon the efficacy irrational prejudice ok!)
of the new disposition. If for any reason the b) the cause must be false
new will intended to be made as a substitute c) the testator must not know of its falsity
becomes inoperative, the revocation fails, and d) it must appear from the will that the testator is
the original will remains in full force. revoking because of the false cause.
e) The illegal cause must be stated in the will as
What is essential for the applicability of DRR? the cause of the revocation.
▪ It applies only if the testator intended his act
of revocation to be conditioned on the making
of a new will or on its validity or efficacy. How about revocation by physical destruction?
▪ If the revoked will is holographic, and the
revocation is invalid, and hence preserving
Is DRR applicable in cases of revocation by physical the first will), probate of the first will will still
destruction? not be possible [GAN VS. YAP], unless a copy
▪ In [MOLO], the Court held in obiter, that the survives [RODELAS VS. ARANZA].
physical destruction of the will did revoke it
(meaning first will subsists), on the inference
drawn by the Court that the testator meant ART 834.
the revocation to depend on the validity of a
new one. The recognition of an illegitimate child does not
lose its legal effect, even though the will
wherein it was made should be revoked.
Diaz vs. De Leon
The testator, shortly after the execution of ▪ The part of the will wherein the testator
the first will in question, asked that the same be acknowledges an illegitimate child is non-
returned to him. The instrument was returned to the revocable. Recognition is an irrevocable act.
testator who ordered his servant to tear the ▪ Even if the will is revoked, such recognition
document. remains effective.
The intention of revoking the will is manifest
from the fact that the testator was anxious to
withdraw or change the provisions he had made in ART 835.
his first will. The original will herein presented for ART 836.
probate has been destroyed with animus revocandi. REPUBLICATION AND REVIVAL OF WILLS

Balane: In order to revoke the first will, the second ART 835: The testator cannot republish,
or subsequent will must be valid and probated. A ▪ without reproducing in a subsequent
revoking will must be probated. will,
▪ the dispositions contained in a
previous one
ART 833. ▪ which is void as to its form.

A revocation of a will based on a false cause or ART 836: The execution of a codicil referring to
illegal cause is null and void. a previous will
▪ has the effect of republishing the will
Are wills revocable? ▪ as modified by the codicil
▪ Yes. Wills are revocable ad nutum, at the
pleasure of the testator.
What is republishing?
Must the testator have reason for revoking? ▪ To give efficacy to a will previously voided.
▪ General rule: No. He need not have a reason
or cause for revoking. What is void as to form?
▪ Those that do not comply with [804-808],
What is the exception? Are all causes valid reasons [810-814], [818-819]
for revocation? NO.
▪ When the there is a false or illegal cause €
the revocation is not given effect / the
SUCCESSION (BALANE) CHAMP © 2004
Notes - 23 -

What must the testator do to republish a will void as Does this provision apply to all kinds of revocation of
to its form? Will 2?
▪ Just execute a new will, and reproduce or ▪ No. This provision applies only if the
copy out the dispositions of the original will. revocation of Will 1 by Will 2 is express
▪ Mere reference to that (void) will will not do. (express revocation).
▪ If the Will 1 is revoked by Will 2 only
How about void as to other causes or defects? impliedly € the revocation of the Will 2 by
▪ Other causes for voiding a will (other than for Will 3 revives Will 1, unless Will 3 itself is
form: inconsistent or incompatible with Will 1.
1. void for non-formal defect
2. void for being previously revoked
WILL 1 REVOKED BY WILL 1 REVOKED BY
So what must the testator do to republish a will void WILL 2 – EXPRESSLY WILL 2 – IMPLIEDLY
for non-formal defect, or previously revoked will? Art 837 will apply. Art 837 will not apply.
▪ The testator should execute a new will or Effect: Effect:
codicil, referring to the previous will. The Will 3 revoking Will GR: The Will 3 revoking
▪ There is no need to reproduce or copy out the 2 will NOT revive Will 1. Will 2 revives Will 1.
provisions of the prior void will.
Except: Will 3 itself is
ART 835 ART 836 inconsistent with Will 1.
Void as to Form Void as to:
1. non-formal defect Another Except: When
2. previously revoked Will 2 is holographic and
How to Republish How to Republish it is revoked by physical
▪ execute new will ▪ execute new will destruction, probate is
▪ copy out the or codicil no longer possible,
provisions from ▪ simply make unless a copy survives.
original void will references to the
original void will
Reference to original Reference to original
insufficient sufficient ART 838.
ALLOWANCE AND DISALLOWANCE OF WILLS

ART 837. No will shall pass either real or personal

property unless:
If after making a will ▪ It is proved and allowed in accordance
▪ testator makes a second will expressly with the Rules of Court.
revoking the first,
▪ the revocation of the second The testator himself may, during his lifetime
€ does not revive the first will. ▪ Petition the court having jurisdiction for
(Such first will) can be revived only by another the allowance of his will.
will or codicil. In such case, the pertinent provisions of the
Rules of Court for the allowance of wills afer
Will 1 € Will 2 € Will 3 the testator’s death shall govern.

The revocation of Will 2 will not revive Will 1. The Supreme Court shall formulate
▪ Such additional Rules of Court as may be
What is the reason for non-revival of Will1? necessary for the allowance of wills on
▪ Theory of Instant Revocation. petition of the testator. (ante mortem
▪ The revocatory effect of Will 2 is immediate. probate)
▪ But such theory is inconsistent with the
principle that wills take effect only upon Subject to the right of appeal,
death. € The allowance of will, either
▪ Balane: This is a funny provision! a) during the lifetime of the testator, or
b) after his death,
What's funny about it? € shall be conclusive as to its due
▪ Because in order for the revocation of Will 1 execution.
to be effective, the second will must be
probated. But Will 2 has already been
revoked by Will 3. What is probate?
▪ It suggests that revoked wills (Will 2) are still ▪ It is a judicial proceed where the will is
submitted for probate. “tested” for its compliance with the formal
validity of wills.
▪ It is the first part of 2 stages in a settlement
proceeding.
champ.reyno © 2004
 - 24

1. probate of will – extrinsic validity ▪ Yes. In case of ante-mortem probates, since

2. settlement proper – intrinsic validity the testator is still alive, the testator may still
▪ The probate of wills is mandatory. [GUEVARA revoke the will, even if such will had already
VS. GUEVARA] been probated and even if such was
considered already res judicata.
▪ Also, see [GALLANOSA VS. ARCANGEL]
What are the kinds of probate?
1) post-mortem – after the testator's death
2) ante-mortem – during the testator's lifetime Anyway, so what is the scope of the final decree of
Advantages of ante-mortem probate: probate? What are the matters rendered final,
▪ easier for the court to determine the conclusive and res judicata?
mental condition of the testator (since he ▪ Only the due execution of the will
is still alive) ▪ Only the extrinsic or formal validity
▪ fraud, intimidation, and undue influence ▪ [GALLANOSA VS. ARCANGEL]
are minimized. ▪ Or you can also refer to Art 839.
▪ Lessens the number of contests upon wills

Gallanosa vs. Arcangel (relate to Art 839)

Guevera vs. Guevera The decree of probate is conclusive as to
If the decedent left a will and no debts and the due execution or formal validity of the will.
the HDL desire to make an extrajudicial partition of That means that:
the estate, they must first present the will to the 1. Testator: of sound and disposing mind
court for probate. They may not disregard the at the time when he executed the will
provisions of the will unless they are contrary to law. and
The suppression of wills is contrary to law
and public policy, because unless the will is probated 2. Testator: not acting under duress,
and notice thereof is given to the whole world, the menace, fraud, or undue influence.
right of a person to dispose of his property by will
may be rendered nugatory. Absentee devisees and 3. Will: signed by him in the presence of
legatees could be cheated of their inheritance thru the required number of witnesses
the collusion of some of the heirs who might agree to
the partition of the estate among themselves to the 4. Will: is genuine and not a forgery.
exclusion of others.
The probate of a will is a proceeding in rem, These facts cannot be questioned again in a
and cannot be dispensed with and substituted by any subsequent proceeding. After the finality of the
other proceeding, judicial or extrajudicial, without allowance of will, the issue as to the voluntariness of
offending public policy. its execution cannot be raised anymore. It was
No intestacy. Probate of will mandatory. rendered in a proceeding in rem and binding upon
the whole world.

What is a decree of probate? *always refer to Formality Requirements

▪ A declaration of the court that the will in Attested Holographic Misc. Reqmt's
question conforms to requirements for formal Reqmt's Reqmt's (joint wills)
validity. Art 804-808 Art 804, Art 818-819
Art 810-814
What is the effect of a decree of probate?
▪ It is conclusive of its due execution. General Rule for probate of wills.
▪ It is res judicata. [DE LA CERNA VS. POTOT] ▪ A decree of probate therefore, does not
concern itself with the question of intrinsic
validity.
De La Cerna vs. Potot ▪ The probate court should not pass upon such
The final decree of probate has conclusive issue in the first stage. There is a proper time
effect as to his last will and testament, despite the for that € the settlement proper stage.
fact that even then the Civil Code already decreed
the invalidity of joint wills. Exception:
The lower court committed error in allowing ▪ If it appears on the face of the will that it is
the joint will but having given a final judgment on intrinsically void, the probate of the will might
the probate, the same is binding upon the whole be an idle ceremony!
world. It does not affect the conclusiveness of its ▪ The substantive validity may be passed upon
final decision, however erroneous. on the first stage if patent on the face of the
The courts have spoken with finality when will that the same is void.
the will was probated. ▪ Practical considerations demand that the
intrinsic validity of the will be passed upon
even before probate. [NEPOMUCENO VS. CA]
Is there an exception to this rule of finality of
probate decree?
 SUCCESSION (BALANE) CHAMP © 2004
Notes - 25 -

Nepomuceno vs. CA ART 840.

The will itself expressly admits indubitably INSTITUTION OF HEIRS, DEVISEES, LEGATEES
on its fact the meretricious relationship between the
testator and the petitioner. Hence, the admission of Institution of heir, (devisee, or legatee), is an act,
the testator of the illicit relationship between him ▪ By virtue of which a testator designates
and the petitioner puts in issue the legality of the in his will
devise. ▪ The person or persons who are to
succeed him
GR: In probate proceedings, the court's area of ▪ In his property and transmissible rights
inquiry is limited to the examination and resolution and obligations.
of the extrinsic validity of the Will.
Except: In view of certain unusual provisions in the
will, which are of dubious legality, the court may ART 841.
pass upon the will's intrinsic validity even before its
formal validity has been established. A will shall be valid even though:
a. it does not contain an institution of an
heir, or
ART 839. b. such institution does not comprise the
GROUNDS FOR DISALLOWANCE OF WILLS. estate, or
(AKA. SCOPE OF FORMAL VALIDITY). c. even though the person so instituted
should not accept the inheritance or
The will shall be disallowed in any of the should be incapacitated to succeed.
following causes:
1. The formalities required by law In such cases,
▪ have not been complied with. ▪ the testamentary dispositions made in
accordance with law shall be complied
2. The testator was with, and
▪ insane, or ▪ the remainder of the estate shall pass to
▪ otherwise mentally incapable of the legal heirs.
making a will,
€ at the time of its execution
ART 842.
3. The will was executed through
▪ Force One who has NO One who has
▪ Under duress compulsory heirs compulsory heirs
▪ Influence of fear ▪ may dispose by ▪ may dispose of his
▪ Threats will estate
▪ all his estate or ▪ provided, he does
4. The will was procured by any part of it not contravene
▪ Undue and improper ▪ in favor of any the provisions of
▪ Pressure and influence person having this Code with
€ on the part of the beneficiary or some capacity to regard to the
other person succeed legitime of said
heirs.
5. The signature of the testator € was ▪ In short, MAY ▪ In short, MAY
procured by fraud. DISPOSE OF THE DISPOSE ONLY THE
ENTIRE DISPOSABLE
6. The testator HEREDITARY PORTION
▪ Acted by mistake, or ESTATE (HEREDITARY
▪ Did not intend that the instrument he ESTATE LESS
signed should be his will at the time LEGITIMES)
of affixing his signature thereto. Note: In either case,
If he still disposes only less than what he is entitled
to, the remainder passes by intestacy or intestate
Are the grounds for disallowance of wills exclusive? succession.
▪ Yes. But Legitimes still pass by strict operation of law.

What is the effect if these grounds are present? ART 843.

▪ It sets aside as void the will. ART 844.
▪ A will is either valid or void only. There is no MANNER OF DESIGNATE THE HEIR, DEVISEE OR
such thing as voidable will. (Even if consent is LEGATEE
vitiated, still void).

champ.reyno © 2004
 - 26

How must the testator designate the HDL ?

▪ ART 843: The testator shall designate the UNKNOWN PERSON DEFINITE CLASS OR
heir by his name and surname. GROUP OF PERSONS
▪ When there are two persons having the - a successor whose -
same names, he shall indicate some identity cannot
circumstances by which the instituted reasonably be
heir may be known. determined because the
designation in the will is
so clear or so ambiguous
What is the sense of this article? as to be incapable of
▪ The HDL must be identified in the will with resolution
sufficient clarity to leave no doubt as to the Ex. “I designate ¼ of my Ex. I designate ¼ of my
testator's intention. estate to novel writer.” estate to all the
▪ The basic rule in testamentary succession is members of the
respect for and compliance with the testator's graduating class of 2010.
wishes. VOID. VALID.

What does “unknown” mean?

Must the full name and surname of the HDL ▪ It means someone whose identity cannot be
completely identified? What is the effect of reasonably established.
incomplete name? ▪ It does NOT mean a stranger € you can still
▪ No. the designation of the name and surname make dispositions in favor of persons with
is merely directory. whom you are not acquainted with, provided
▪ ART 843: Even though the testator may his identity is clear.
have omitted the name of the heir, Ex. I designate ¼ of my estate to whoever
should he designate him in such manner will top the 2010 bar exams.
that there can be no doubt as to who has
been instituted, the institution shall be
valid. ART 846.
▪ The underlying principle is that the identity of
the designated successor (HDL) be sufficiently Heirs instituted without designation of shares
identified. € shall inherit in equal parts.
▪ Ex. “my Kuya Germs”, “Dean Bernas of
Ateneo”, “my youngest daughter”
What is the effect of collective designation of heirs?
▪ The heirs inherit in equal parts.
What if the designation is still ambiguous? ▪ The general presumption in cases of collective
▪ The ambiguity should be resolved using Art designation is equality.
789. ▪ If the testator intends an unequal
apportionment, he should so specify.

What if after Art 789, the designation remains Note:

ambiguous? ▪ This article applies only in testamentary
▪ If it is not possible to resolve the ambiguity, succession € among heirs, devisees and
the testator's intent becomes indeterminable, legatees
and therefore intestacy results for that ▪ Of course, one who is both a compulsory and
portion. testamentary heir will receive more than
▪ In short, neither of them will be an heir, and someone who is just a testamentary heir,
intestacy will result. because of the legitime.

ART 845. ART 847.

Every disposition in favor of an unknown When the testator institutes some heirs
person individually and others collectively,
▪ Shall be void. ▪ “as when he says, I designate as my
heirs A and B, and the children of C”
Unless by some event or circumstances,
▪ his identity becomes certain. those collectively designated shall be
considered as individually instituted,
However, a disposition in favor of a definite
class or group of persons unless it clearly appears that the intention of
▪ shall be valid. the testator was otherwise.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 27 -

Explain the Principle of Equality and Individuality of ART 850.

Designation.
▪ GR: Following the rule of equality in 846, The statement of a false cause
there is also a presumption that heirs ▪ For the institution of an heir
collectively referred to are designated per € shall be considered as not written,
capita along with those separately
designated. Unless it appears from the will that the testator
▪ Except: If the testator intended a block would not have made such designation if he
designation, he should so specify. had known the falsity of such cause.

Ex. I institute A and B as my heirs, and all the What is the effect of a false cause for the
members of Class 3A. testamentary institution?
▪ The total will not be 3 because you will have ▪ GR: The falsity of the stated clause does not
to count all the members of class 3A. affect the validity or efficacy of the institution.
▪ The false cause is considered as not written.
(meaning the institution remains valid)
ART 848. ▪ Reason: Testamentary dispositions are acts of
liberality.
If the testator should institute his brothers and
sisters What is the exception? When may a false cause
▪ And he has some of full blood and others annul the testamentary institution?
of half blood, ▪ If certain factors are present [AUSTRIA VS.
REYES]
The inheritance shall be distributed equally
unless a different intention appears.
Austria vs. Reyes
Before the institution of heirs may be
Note annulled, the following requisites must concur:
▪ This article also follows the rule of equality in 1) the cause for the institution of heirs must be
846. stated in the will
▪ If the testator intends an unequal 2) the cause must be shown to be false
apportionment, he should so specify. 3) it must appear from the face of the will that
the testator would not have made such
Is this article absolute? institution had he known of the false cause.
▪ NO. This article applies only to testamentary
succession, NOT to intestate or legal Note:
succession. ▪ This article refers only to false cause.
▪ In intestacy, there is a proportion of 2:1 ▪ It does not restrict the annulment of certain
between full and half blood brothers and testamentary dispositions by reason of public
sisters. policy, because in such case the reason for
annulling is illegality and not falsity.
TESTAMENTARY INTESTATE OR LEGAL
SUCCESSION SUCCESSION
- equality of shares of - proportion of 2:1
full and half blood between full and half ART 851.
brothers and sisters blood brothers and
sisters (Art 1006) A. If the testator has instituted only one heir,
AND
Does 848 apply to illegitimate brothers and sisters? B. The institution is limited to an aliquot part
▪ Apparently yes. There is no distinction made. of the inheritance

€ Legal succession takes place with respect to

ART 849. the remainder of the estate.

When the testator calls to the succession a The same rule applies if,
person and his children,
A. The testator has instituted several heirs
€ they are all deemed to have been instituted B. Each being limited to an aliquot part, AND
simultaneously and not successively. C. All parts do not cover the whole inheritance

▪ This also illustrates the principle of equality

and individuality (per capita).
 - 28

Summary ART 854.

Testator instituted only 1Testator instituted more PRETERITION
heir than 1 heir
Institution limited toEach institution limited The preterition or omission of:
aliquot part to aliquot part ▪ One
Sum of parts is less than ▪ Some, or A) of the compulsory
entire inheritance ▪ All heirs in the direct line,
What happens to the remainder of the estate?
▪ Legal succession takes place with respect to B) whether:
the remainder of the disposable portion, and ▪ Living at the time of the execution of
not the remainder of the estate (erroneous the will, or
851). ▪ Born after the death of the testator,

€ shall annul the institution of heir;

ART 852.
ART 853. But, the devises and legacies shall be valid in
so far as they are not officious.
1. If it was the intention of the testator that
the instituted heirs should become the sole If the omitted compulsory heirs should die
heirs of the whole estate or the whole free before the testator,
portion, as the case may be, AND € the institution shall be effectual,
2. Each of them has been instituted to an ▪ Without prejudice to the right of
aliquot part of the inheritance, AND representation.l
3. Their aliquot parts together do no cover the
whole inheritance or the whole free
portion, What is preterition?
▪ It is an omission.
€ Each part shall be increased proportionally. ▪ [prae-ter] – beside, [ire] – to go = [to go
beside, to pass by]
▪ Manresa: Preterition consists in the omission
1. If each of the instituted heirs has been of an heir in the will, either because he is
given an aliquot part of the inheritance, NOT NAMED ALTHOUGH NAMED
AND He is not He is neither:
2. The parts together exceed the whole named in the a. instituted as an heir
inheritance, or the whole free portion, as will. b. expressly disinherited
the case may be, c. assigned any part of
the estate
€ Each part shall be reduced proportionally. Thus: tacitly deprived of his right to legitime.

▪ Castan: Preterition is the omission in the will

ARTICLE 852 ARTICLE 853 of any of the compulsory heirs without being
Common Elements: expressly disinherited.
a. there are more than one instituted heir
b. the testator intended them to get the whole
estate or whole disposable portion What is the proper definition of preterition?
c. the testator has designated a definite or ▪ For there to be preterition, the compulsory
aliquot portion for each heir. heir in question must have received
The total of all the The total of all the absolutely nothing from the testator either by
portions is LESS than the portions EXCEEDS the way of:
whole. whole. a) testamentary succession
Common Element: b) legacy or devise
▪ In short, the testator obviously did not know c) donation inter vivos
how to add fractions! d) intestacy
**note: the remainder of ▪ Balane: It is not really an omission in the will.
portion cannot pass by The mention or non-mention is not
intestacy since the constitutive of preterition. Preterition must be
testator clearly intended a total omission from the inheritance.
to give the instituted
heirs the entire amount
Remedy: Remedy: When is there preterition?
Proportionate increase of Proportional reduction of ▪ Only in case of testamentary succession!
each share. each share. ▪ You cannot have preterition in intestacy.
*see book for examples.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 29 -

How do you distinguish disinheritance from ▪ This means, children or descendants, and
preterition? parents or ascendants.
DISINHERITANCE PRETERITION ▪ Illegitimate descendants and ascendants are
Express deprivation Tacit deprivation also protected according to Manresa. (Since
there is no distinction as to legitimacy).
▪ Adopted children are also included and may
When is there NO preterition? claim preterition. [ACAIN VS. IAC]
1. If the heir instituted in the will receives a portion ▪ The Art excludes the surviving spouse €
less than his legitime. (Remedy: completion of although she is also a compulsory heir, she is
legitime) not in the direct line and therefore cannot
claim to be preterited.
2. If the heir is given a legacy or devise. (Remedy:
completion of legitime) Balane: This is a bad provision. It omits the
spouse from the protection or remedy under Art
3. If the heir had earlier received a donation inter 854. The protection must be extended to all
vivos from the testator. (Donation inter vivos compulsory heirs!
are treated as an advance on legitimes.)

4. If not all of the estate is disposed of by the will, What happens in case the preterited compulsory
and the heir is still not mentioned in the will, nor heirs pre-deceases the testator?
earlier been a recipient of a donation inter vivos. ▪ ART 854: If the omitted compulsory heir
(The omitted heir would still receive something should die before the testator, the
by way of intestacy, from the vacant or institution shall be effectual, without
remaining portion, undisposed by the will). prejudice to the right of representation.
(Remedy: completion of legitime). ▪ The question of preterition becomes moot.
The institution of other heirs remains valid.
▪ If the omitted compulsory heir had heirs of
Reyes vs. Baretto his own, such heir may himself be entitled to
The fact that Milagros was allotted in her succeed by virtue of representation, unless
father's will a share small than her legitime does not such heir is also himself completely
invalidate the institution of Salud as heir, since there preterited. (See more on rules of
was no preterition, or total omission for a forced representation).
heir.
There is no pretertion where there is no
total omission, inasmuch as the heir received Acain vs. IAC
something from the inheritance. Preterition consists in the omission in the
The heir's remedy is not for the annulment testator's will of the forced heirs either because
of the other instituted heir (854), but for the they are not mentioned therein, or although
completion of legitime in 906-907. mentioned, they are neither instituted as heirs nor
are expressly disinherited [NUGUID VS. NUGUID].
Even if a surviving spouse (widow) is a compulsory
Aznar vs. Duncan heir, there is no preterition even if she is omitted
Any compulsory heir to whom the testator from the inheritance, for she is not in
has left by any title less than the legitime belonging the direct line.
to him (as in devise or legacy), may demand that the However, an adopted daughter was totally
same be fully satisfied. omitted and preterited in the will.
In this case, the testator expressly denied An adopted child is included in the
his relationship with Helen, but still left her a legacy “compulsory heir in the direct line”. If totally
nevertheless, although less than the amount of her omitted in the inheritance, is preterited.
legitime. The testator refused to acknowledge Helen
as his natural daughter and just gave her a share to Balane: [ACAIN]'s logic is the soul of simplicity:
a legacy. since an adopted child is given by law the same
The heir could not ask that the institution of rights as a legitimate child, vis-à-vis the adopter,
heirs be annulled entirely when a he was left a then the adopted child can invoke Art 854 in the
legacy worth less than the legitime, and even if said same manner that a legitimate child can.
legatee is not referred to as an heir or even a
relative. Should the value of the legacy or devise be
less than the recipient's claimed legitime, her What is the effect of preterition? What does the
remedy is only for the completion of legitime. remedy of preterition do?
▪ Preterition annuls the institution of an heir
and throws open the entire inheritance to
Who are these compulsory heirs referred to? intestate succession. The only provisions
Who may be preterited? that do not result in intestacy are the
Who may claim the annulment of institution of heirs? legacies and devises made in the will, for
▪ Under the Art 854, one, some or all of the they should stand valid and respected,
compulsory heirs in the direct line.
 - 30

except in so far as the legitimes are Recap:

concerned. Preterition abrogates the institution of heir but
▪ It results in the total abrogation of the will, respects the legacies and devises insofar as these do
or the nullification of the institution of not impair the legitimes.
heirs.
▪ If there are no other testamentary Preterition annuls the institution of an heir and
dispositions like legacies or devises, it annulment throws open to intestate succession the
amounts to a declaration that nothing at all entire inheritance including the free portion. The only
was written. provisions that do no result in intestacy are the
▪ The effect of annulling the institution of legacies and devises made in the will for they should
heirs will be the opening of intestacy, stand valid and respected, except insofar as the
except that proper legacies and devises legitimes are concerned.
must be respected. [ACAIN VS. IAC] [NUGUID VS. NUGUID]
▪ [ACAIN VS. IAC] [NUGUID VS. NUGUID]
The DL are subordinate to the legitimes. The DL
Does preterition result to intestacy? must not eat up the shares or legitimes of
▪ NO. It does not automatically result in compulsory heirs € ½ of estate.
intestacy because IF there are devises and
legacies, they are considered valid, insofar as 2 Situations:
they do not impair the legitimes.
1. If the will contains only institutions of heirs and
there is preterition, total intestacy will result.
Nuguid vs. Nuguid**spa.
Here, a one-sentence will institutes the 2. If there are legacies and devises and there is
petitioner (sister) as the sole heir, nothing more. No preterition, the legacies and devises will stand,
specific legacies or bequests were provided. The to the extent of the free portion. € The DL will
omission of the parents as forced heirs in the direct be reduced and not set aside if the legitimes are
line results in preterition. And the nullity of the impaired. The institution of heirs will be swept
institution is complete. away.
Legacies and devises merit consideration
only when they are so expressly given as such in a
will, in so far as they are not inofficious. ART 855.

The will here does not expressly disinherit The share of a child or descendant, omitted in a
the parents, the forced heirs. It simply omitted their will
names. Such is preterition rather than an ineffective
disinheritance. € must first be taken from:
We repeat, the preterition shall annul the a) the part of the estate not disposed of by
institution of heir. This annulment is in toto, unless the will, if any,
in the will there are additional testamentary and if that is not sufficient,
dispositions in the form of devises and legacies. b) so much as may be necessary must be
taken proportionally from the shares of the
DISINHERITANCE PRETERITION other compulsory heirs.
A testamentary provision Balane: total omission
depriving any from the inheritance, Balane:
compulsory heir of his without the heir being ▪ this article is redundant and completely
share in the legitime for expressly disinherited unnecessary. 854 is already complete in itself
a cause authorized by to provide for the effects of preterition.
law.
The nullity is limited to A Complete nullity of the Tolentino:
that portion of the estate institution of heir. ▪ this article is absurd if we follow it. Do not
of which the disinherited (except DL). follow it.
heir has been illegally
deprived. So when should this article apply?
Always voluntary, Presumed to be ▪ This article should NOT apply to preterition.
explicit on the part of the involuntary; based on ▪ It should apply in cases where the heir
testator. inadvertent omission by receives something less than his legitime.
the testator
He is still not bypassed He is bypassed, and the This is the Superfluity of the Article – it does not
since the heir is simply remedy is the annulment apply to preterition but to completion of legitime.
entitled to demand his of institution of heirs. There are other rules for completion under Art 906-
rightful share. (entire will, except DL). 911.

champ.reyno © 2004
SUCCESSION (BALANE) CHAMP © 2004
Notes - 31 -

ARTICLE 854 ARTICLE 855

Preterition No Preterition, as when Note:
the heir receives ▪ This is another inaccurate provision.
something less than his ▪ Both a voluntary and compulsory heir, who
legitime dies before the testator € transmit nothing to
his own heirs
In short, Impairment of ▪ This rule of non-transmission is absolute.
Legitime
Remedy: Remedy: What about representation?
Annulment of Institution Completion of Legitime ▪ There may be representation by the heirs of
said decedent heir, but representation is still
not a transmission.
When does Art 855 operate? ▪ Representation in the person does not
▪ In case of inofficious disposition by the transmit anything to the heirs. Rather,
testator in the will. representation is a form of subrogation or “to
▪ When the testamentary heirs, devisees and take the place.”
legatees get more than the free portion.
Outline of Rules:

How does Art 855 operate? How do you fill up the In all cases, NOTHING IS TRANSMITTED TO HIS
compulsory heir's impaired legitime? OWN HEIRS
1. First, from the portion of the estate still left COMPULSORY VOLUNTARY LEGAL
undisposed of by will. HEIR HEIR HEIR
2. Second, from the shares of the testamentary (compulsory (testamentary (intestate
heirs, legatees and devisees. succession) succession) succession)
1. Predecease: 1. Predecease: 1. Predecease:
Representation No Representation
Who are entitled to full satisfaction of legitimes? Representation
▪ Not only the children and descendants (as
inaccurately expressed in the article) but the 2. Incapacity: 2. Incapacity: 2. Incapacity:
protection must extend to all compulsory Representation No Representation
heirs: Representation
a) children and descendants
b) parents and ascendants 3. Renunciation: 3.Renunciation: 3.Renunciation:
c) surviving spouse. No No No
Representation Representation Representation
From whom are their shares to be taken for
completion? 4. Disinheritanc 4.Disinheritanc 4.Disinheritanc
▪ The proportionate reduction should be borne e e e
by the testamentary heirs, legatees and Representation N/A N/A
devisees, (not the compulsory heirs as
inaccurately expressed in the article).
▪ To make the compulsory heirs suffer for the midterms champ.reyno 2004
completion of legitimes is the case of “robbing
Peter to pay Paul.”
▪ It is the testamentary dispositions that must
be reduced if they impair or diminish the
legitimes of the compulsory heir.
▪ In fact, the testamentary heirs are subject to
reduction even up to ZERO!!

ART 856.

A voluntary (or testamentary) heir who dies

before the testator
€ transmits nothing to his heirs.

a) A compulsory heir who dies before

the testator,
b) A person incapacitated to succeed,
and,
c) One who renounces the inheritance,
€ shall transmit no right to his own heirs,
except in cases provided for in this Code.
 - 32

SUBSTITUTION OF HEIRS (DEVISEES, AND What are the modes, or modalities (variations) for
LEGATEES) each kind?
▪ Brief or compendious and reciprocal.

ART 857.
ART 859.
What is substitution?
▪ ART 857: Substitution is the appointment The testator may designate one or more
of an heir, persons
€ so that he may enter into the ▪ To substitute the heir or heirs instituted
inheritance in default of the heir € in case such heir or heirs:
originally instituted. 1. should die before him,
2. should not wish, or
3. should be incapacitated, to accept the
Is this definition complete? inheritance.
▪ No. Because it covers only simple substitution
and excludes the fideicommisary. A simple substitution, without a statement of
▪ The complete definition should be: the cases to which it refers,
Substitution is the appointment of another € shall comprise the 3 mentioned, unless the
heir so that he may enter into the inheritance testator has otherwise provided.
in default of, or subsequent to, the heir
originally instituted.
What are the causes for simple substitution (vulgar)?
When is a first (original) heir said to be in default?
When is there substitution? 1. predecease of the first heir
▪ Substitution operates only in testamentary 2. renunciation of the first heir
succession! (thus it covers not only heirs, but 3. incapacity of the first heir
also legatees and devisees).

How does the testator provide for simple (vulgar)

What are the 2 kinds of substitution? substitution?
SIMPLE (VULGAR) FIDEICOMMISSARY a. by specifying all the three causes above
(FIDEICOMISARIA) b. by merely providing, “simple substitution”
Basis: Basis: c. he may also limit the operation of simple
The right to provide for The right to provide for substitution by not specifying all the 3
substitutions is based on substitution is based on causes (just one or two) € it becomes a
testamentary freedom. testamentary freedom, restricted simple substitution.

In simple substitution, In fideicommissary, the

the basis is the freedom basis is the testator's May the testator provide for substitution on other
of the testator to make a freedom to impose a grounds?
second choice or burden on the first heir! ▪ Yes. But strictly speaking, this will not be
replacement called “substitution”.
What is it? What is it? ▪ It would be called a conditional testamentary
The testator simply The testator imposes disposition (see next chapter)
makes a second choice, what is essentially a ▪ Nevertheless it would still be a valid
in case the first choice restriction or burden on institution.
does not inherit. (in the first heir, coupled
default of the first) with a selection of a
subsequent recipient of How many substitutions can be made by the
the property. testator?
▪ Only one substitution is allowed. The person
substituting cannot be substituted again.
ART 858.

Substitution of heirs may be: ART 860.

1. simple or common (vulgar)
2. brief or compendious (breviloca Two or more persons may be substituted for
compendiosa) one (original heir) € brief
3. reciprocal (reciproca)
4. fideicommissary (fidecomisaria) Or, one person for two or more (original) heirs.
€ compendious

What are the two kinds of substitution?

▪ Simple and fideicommissary.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 33 -

BRIEF COMPENDIOUS ART 863.

Two or more One substitute for two or more
substitutes for original heirs. A fideicommissary substitution, by virtue of
one original which,
heir. ▪ the fiduciary or first heir instituted is
Default of only Default of ALL entrusted with the obligation
one original original heirs € to preserve, AND
heir* € to transmit
Substitution Substitution ▪ to a second heir, the whole or part of the
will NOT take will take place! inheritance,
place! € the € shall be valid and shall take effect,
share left
vacant will Provided,
accrue to the a. such substitution does not go beyond
surviving co- one degree from the heir originally
heir(s) instituted, and
*But, as an exception: the b. that the fiduciary or first heir AND the
testator may provide for second heir are living at the time of the
substitution even if only one of death of the testator.
the original heirs is in default.

Again, fideicommissary is the second kind of

ART 861. substitution.

If heirs instituted in unequal shares should be What are the elements of fideicommissary?
reciprocally substituted, 1. the first heir – who takes the property upon the
€ the substitute shall acquire the shares of the testator's death
▪ the fiduciary enters upon the inheritance
heir who dies, renounces, or is incapacitated,
when the testator dies
Unless, it clear appears that the intention of
2. the second heir – who takes the property after
the testator was otherwise.
or subsequently from the fiduciary
If there are more than one substitute, ▪ but the fideicommissary heir already has a
€ they shall have the same share in the vested right at the time of the testator
death, and his right is merely subject to a
substitution as the institution.
period.
▪ This is true even if the fideicommissary does
not receive the property yet. Both heirs
What is reciprocal substitution?
▪ It is when the heirs are made substitutes of enter into the inheritance one after the
one another! other, each in his own turn or sequence.
▪ Thus, he has a vested expectancy.
▪ As earlier said, it is merely a modality or
variation of the vulgar or fidecomisaria. ▪ Even if he dies before the end of the
▪ See book for examples. fiduciary's term, the right passes to the
heirs because he already has vested right
in it. (he need not be alive by then).

3. the second heir – must be one degree from the

ART 862.
first heir
▪ only one transmission is allowed, i.e., from
The substitute shall be subject to the same
the fiduciary to the fideicommissary heir.
charges and conditions imposed upon the
▪ One degree = second heir must be a parent
instituted heir,
or child of the first heir [PALACIOS VS.
RAMIREZ]
Unless:
a. the testator has expressly provided the
4. the dual obligation imposed upon the fiduciary
contrary, or
to preserve the property, and to transmit it after
b. the charges or conditions are
the lapse of the period, to the fideicommissary
personally applicable only to the heir
heir.
instituted.
▪ This requisite is the essence of
In short, the substitute merely takes the place of the fideicommissary. This is because the first
heir is merely fiduciary, and that of a
original heir.
usufruct, having the right to use and
enjoy property, but without the right to
dispose of the same.
▪ [PCIB vs. ESCOLIN]
 - 34

5. Both heirs must be living AND qualified What is the tenure or duration of the fiduciary (first
(capacitated) to succeed at the time of the heir)?
testator´s death. ▪ First, the period indicated by the testator.
▪ The only temporal criterion is the time of ▪ Second, if the testator did not indicate a
the testator's death. period, then the fiduciary's lifetime.
▪ Note: the testator need not survive the first
heir; if the second heir dies before the
first heir, the second heir's heirs merely ART 864.
take his place. (866).
A fideicommissary substitution can never
burden the legitime.
Palacios vs. Ramirez
The substitutes Jankowski and Ramirez ▪ The legitime passes by operation of law. The
were not related to Wanda, the heir originally testator has no power over it.
instituted.

Tolentino says that “one degree” from the ART 865.

first heir is, adopting the view of Manresa and
Sanchez Roman, construed as generation. The code Every fideicommissary substitution must be
thus clearly indicates that the second heir must be expressly made in order that it may be valid.
related to and be one generation from the first heir.
It follows that the fideicommissary can only be either The fiduciary shall be obliged:
a child or parent of the first heir. These are the only ▪ To deliver the inheritance to the second
relatives who are one generation or degree from the heir
fiduciary. ▪ Without other deductions than:
a) those which arise from
Balane: This is an unsatisfactory decision! Justice legitimate expenses,
Abad Santos, my teacher in property law, merely b) credits, and
quoted Tolentino, without explaining why. c) improvements,
▪ save in the case where the testator has
Scaevola and Traviesas: Degree should mean a provided otherwise.
designation, or transmission, or transfer.

How do you make/ impose a fideicommissary

PCIB vs. Escolin substitution?
The substitution provided for by the Will is ▪ There are 2 ways:
not a fideicommissary substitution, because there is a. by express imposition – using the term
clearly no obligation on the part of the husband, as “fideicommissary”
the first designated heir, to preserve the properties b. by imposing upon the first heir the absolute
for the substitute heirs. In fact, the husband had obligation to preserve and to transmit to the
absolute freedom to dispose of the properties. second heir.
The designation that should the husband
die, then the brothers and sisters of the testator
would receive whatever residue or properties are left How should the first heir transmit the property to the
is not a fideicommissary substitution. second heir?
▪ The fiduciary should deliver the property intact
But, this does not render inoperative nor and undiminished to the fideicommissary upon
invalid the dispositions in favor of the “substitute” the arrival of the period.
heirs. The brothers and sisters are not substitutes of ▪ Generally, there should be no deductions.
the husband because under the will, they are not to ▪ Exceptions: those 3 mentioned above.
inherit what the husband cannot, would not, or may
not inherit. What they inherit is that which he the
husband would not dispose of. How about damage to or deterioration of property?
▪ Fiduciary liable if and only if such was caused
This makes them heirs instituted by the fiduciary fault or negligence
simultaneously with the husband (first heir), subject
only to certain conditions. It becomes a conditional
simultaneous substitution, partially resolutory as to
the husband, and suspensive as to the brothers and
sisters.

▪ Here, the institution is deemed to be a

simultaneous institution, not a
fideicommissary.
▪ It is still a valid institution.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 35 -

ART 866. 4. Those which leave to a person

▪ The whole or part of the hereditary
The second heir shall acquire the right to the property,
succession ▪ In order that he may apply or invest
€ from the time of the testator’s death, the same,
▪ According to the secret instructions
Even though he should die before the fiduciary. communicated to him by the testator.

The right of the second heir shall pass to his ▪ Here, the entire provision itself becomes void.
heirs. ▪ The obvious purpose of such surreptitious
disposition is to circumvent some prohibition
or disqualification.
Should the second heir survive the testator?
▪ YES. Otherwise there would be no substitution

Should the second heir survive the first heir? ART. 868
▪ No. As long as he survives the testator, (sure
na siya!) In case he dies, the second heir's The nullity of the fideicommissary substitution
own heirs simply take his place. € does not prejudice the validity of the
▪ The second heir's right vests upon the institution of heirs first designated.
testator's death, only that his institution is one
subject to a suspensive term The fideicommissary clause shall simply be
considered as not written.

ART 867. When is there a nullity of fideicommissary

substitution?
The following shall NOT take effect: ▪ When it fails to comply with the 5 requisites in
1. Fiduciary substitutions Art 863.
▪ Which are not made in an express
manner: What is the effect of such nullity?
€ either by giving them this name, ▪ The fideicommissary substitution becomes void
or and ineffective.
€ imposing upon the fiduciary the ▪ The institution of the first heir simply becomes
absolute obligation to deliver the pure and unqualified. It will not be annulled.
property to the second heir.

▪ If there is no dual obligation, then there is no

fideicommissary substitution. ART 869.
▪ But, the lack of this element does NOT, by that
fact alone, nullify the institution. A provision whereby the testator leaves to a
▪ It only means that it is not a fideicommissary person,
substitution. It could be something else as in ▪ The whole or part of the inheritance,
PCIB vs. Escolin. AND
To another
▪ The usufruct
2. Provisions which contain perpetual € shall be valid.
prohibition to alienate
▪ Even a temporary one, beyond the limit If he gives the usufruct to various persons,
fixed in 863. Not simultaneously, but successively,
€ the provisions of 863 shall apply.
FIDEICOMMISSARY NON-FIDEICOMMISSARY
-limit is the first -limit is 20 years.
heir´s lifetime Are successive usufructuaries valid?
▪ Yes. Provided, there can only be two (2)
usufructuaries, one after the other. Provided
3. Those which impose upon the heir further, the requisites in Art 863 must be
€ the charge of paying to various persons present.
successively (a certain income or pension),
€ beyond the limit prescribed in 863.

▪ There can only be two beneficiaries of the ART 870.

pension, one after the other, and the second
must be one degree from the first. The dispositions declaring all or part of the
▪ There is no prohibition on simultaneous estate inalienable for more than 20 years
beneficiaries € shall be void.
 - 36

DISPOSITIONS WITH A CONDITION

FIDEICOMMISSARY / NON-FIDEICOMMISSARY ART 873.
SUBSTITUTIONS / INSTITUTION OF
HEIRS IN GENERAL 1. Impossible conditions, and
-limit is the first -limit is 20 years. 2. Those which are contrary to law or good
heir´s lifetime customs

€ shall be considered as not imposed, AND

€ shall in no manner, prejudice the heir, even
if the testator should provide otherwise.
CONDITIONAL TESTAMENTARY DISPOSTIONS
& TESTAMENTARY DISPOSITIONS WITH A
TERM What is the effect of an impossible or illegal
condition?
▪ It is simply considered as not written.
ART 871. ▪ The testamentary disposition itself is not
annulled and simply becomes pure.
The institution of an heir may be made: (CMT)
a. Conditionally, (conditional) or Then what?
b. For a certain purpose or cause. (modal) ▪ Then the property immediately goes to the
c. (dispositions with a term) intended heirs.

Why is this rule different in oblicon?

Can you recall the difference between conditions and OBLICON RULE SUCCESSION RULE
terms in oblicon? - annuls the obligation - condition simply
TERM CONDITION itself considered as not
- uncertainity when it - uncertainity if at all it written, but the
will happen (but it will will happen institution itself is still
happen) valid.
▪ Similarity: demandability of obligations € both In onerous obligations, Testamentary
refer to future events. the condition imposed dispositions are in the
▪ Difference: certainity becomes an integral part nature of gratuitous
of the causa of the obligations, based on the
obligation. The testator's liberality. This
Why are these 3 kinds of testamentary dispositions elimination of the liberality is the basis of
allowed? condition results in the grant.
▪ The right of the testator to impose conditions, failure of cause. No
terms and modes springs from testamentary cause = No obligation.
freedom.

ART 874.
ART 872.
An absolute condition
The testator cannot impose any charge, Not to contract a first or subsequent marriage
condition, or substitution whatsoever upon the € shall be considered as not written,
legitimes prescribed in this Code.
Unless: such condition has been imposed on
Should he do so, the same shall be considered the widow or widower,
as not imposed. € by the deceased spouse, or
€ by the latter’s ascendants or descendants.

▪ Legitimes must be pure, free, and Nevertheless,

unencumbered. ▪ 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.

champ.reyno © 2004
SUCCESSION (BALANE) CHAMP © 2004
Notes - 37 -

Can a condition prohibiting marriage be imposed? c. It gives the testator the power to dispose
▪ Yes. But only for a subsequent marriage mortis causa not only of his property but
imposed by the deceased spouse or by his also of his heirs.
ascendants or descendants.

Prohibition on First VOID. Condition always What is declared void?

Marriage considered as not ▪ The testamentary disposition itself, not just
imposed. the condition.
Reason: Art 873: It ▪ Therefore, it is deemed not imposed at all.
contrary to law and good
customs.
Prohibition on VALID – If imposed by:
Subsequent Marriage a) the deceased's ART 876.
spouse, or
b) by his ascendants Any purely potestative condition imposed upon
or descendants an heir
€ must be fulfilled by him as soon as he learns
VOID – If imposed by of the testator’s death.
anyone else € it is (Unless,) This rule shall not apply when:
considered as not ▪ The condition, already complied
imposed. with,
▪ Cannot be fulfilled again.

How about the imposition of a condition to marry?

▪ This is valid. The article refers only to
absolute prohibition. ART 877.
▪ The testator may still impose a condition to
marry either with reference to a particular IF the condition is casual or mixed,
person or a class. € it shall be sufficient if it happen, or be
▪ Ex. You should not marry a foreigner. fulfilled,
▪ Ex. Do not marry Miss X. ▪ At any time, Before or After, the death of
▪ Ex. Do not marry a lawyer. the testator,
▪ Ex. You must marry a doctor. Unless, he has provided otherwise.
▪ These are Valid conditions because they are
only relative prohibitions. Should it have existed, OR
Should it have been fulfilled at the time the will
How about a priest? Can you require him to marry? was executed,
▪ Of course not.
AND € the testator was unaware thereof,
Can the testator make a condition terminating a € it shall be deemed as complied with.
testamentary benefaction should the heir contract a
marriage, even a first one? Ex. Granting a pension If he had knowledge thereof,
while you're single only. € the condition shall be considered fulfilled
▪ Yes. only when:
▪ It is of such nature that it can no longer
exist, OR
ART 875. ▪ Be complied with again.

Any disposition, made upon the condition that:

▪ The heir shall make some provision in ART 883, par. 2
HIS will in favor of the testator, or any
other person If the person interested in the condition
€ shall be void. € should prevent its fulfillment
€ without the fault of the heir,
The condition shall be deemed to have
What is a scriptura captatoria? been complied with.
▪ It is a legacy-hunting disposition.
▪ It is void.
ART 879,
Why is it void?
a. because the captatoria converts If the potestative condition imposed upon the
testamentary grants into contractual heir is:
transactions. (It makes it onerous). a. negative, OR
b. It deprives the heir of testamentary b. consists in not doing or not giving
freedom. something,
 - 38

€ he shall comply by: Casual & Mixed Conditions

1) giving a security that he will not do or GR: may be fulfilled at any time (before or after the
give that which has been prohibited by testator's death),
the testator, AND Unless the testator' provides otherwise.
2) that in case of contravention, he will
return whatever he may have received, Exception:
together with its fruits and interests. ▪ If already fulfilled at the time of the execution of
the will
Kinds of Conditions If testator NOT aware If testator was aware of
Potestative Casual Mixed Condition of fact of fulfillment fact of fulfillment
Condition Condition - deemed fulfilled If can If it can
One that One that One that NOT be be
depends solely depends solely depends partly fulfilled fulfilled
on the will of on the will of a on the will of again again
the HDL 3rd person or by the HDL, and Deemed Must be
Either: chance partly on the fulfilled fulfilled
Posit Nega will of a 3rd again.
ive tive person or by
chance.
See Below for more…

Potestative Conditions What is the rule on constructive compliance?

Positive Potestative Negative Potestative Casual Mixed Conditions
(876) (879) Conditions
GR: must be fulfilled as Heir must give a security Not Dependent Dependent partly on will
soon as the heir learns of (caucion muciana) to applicable partly on of 3rd party
the testator's death guarantee the return of chance
The HDL must decide the value of the Not If 3rd If 3rd party
whether to fulfill it or property, fruits, and applicable party not interested
not. interest, in case of interested
contravention. Not Applicable
Exceptions: applicable
1) if the condition was Ex. prohibition to marry
already complied under Art 874.
with at the time the
heir learns of the ART 880.
testator's death.
2) If the condition is of If the heir be instituted under a suspensive
such nature that it conditions,
cannot be fulfilled € the estate shall be placed under
again. administration,
a. until the condition is fulfilled, OR
Note: A constructive b. until it becomes certain that it cannot
compliance is sufficient be fulfilled, OR
€ condition deemed c. until the arrival of the
fulfilled. (Art 883, p.2)
The same shall be done,
d. if the heir does not give the security
required in the preceding article.

*Note: this article should not be applicable to

institutions with a term. Disregard any reference to
the term in this article.

What is to be done between the time of testator's

death and the time of the fulfillment of the
suspensive condition?
▪ The property must be placed under
administration.
▪ The property shall be in the executor's or
administrator's custody until the heir furnishes a
caucion muciana.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 39 -

▪ The heirs may thereafter demand the

If condition happens If it becomes certain property when the term arrives (because a
that condition will NOT term is certain to happen).
happen ▪ This is the same rule in fideicommissary
- the property will be - the property will be substitutions (866).
turned over to the turned over to a
instituted heir secondary heir (if Again distinguish this from suspensive conditions.
any), or the intestate SUSPENSIVE SUSPENSIVE TERM
heirs. CONDITION
- capacity to succeed is - capacity to succeed is
determined: determined:
Compare / Distinguish with institutions with a term: a) at the time of death, a) at the time of death
INSTITUTION WITH A INSTITUTION WITH A AND only.
(SUSPENSIVE) (SUSPENSIVE) TERM b) at the time the
CONDITION condition happens
- property is placed - property is given to the
under administration in legal heirs at once, even * hence the heir must be
the meantime (while before the arrival of the living and qualified to
waiting), until the term. succeed at both
condition happens or if it instances
becomes certain that the
condition will not happen

ART 885.

ART 881. The designation of the day or time,

▪ when the effects of the institution of an
1. The appointment of the administrator of heir shall commence, or cease,
the estate mentioned in the preceding € shall be valid.
article, as well as
2. The manner of the administration, and In both cases, the legal heir, shall be
3. The rights and obligations of the considered as called to the succession,
administrator € until the arrival of the period, or its
€ shall be governed by the Rules of Court. expiration.

But in the first case, he shall not enter into

ART 884. possession of the property
€ until after having given sufficient security,
Conditions imposed by the testator upon the with the intervention of the instituted heir.
heirs,
€ shall be governed by the rules established
for conditional obligations in all matters not TERM
provided for by this Section. SUSPENSIVE (ex die) RESOLUTORY (in diem)
(commence later) (cease later)
Before the arrival of the Before the arrival of the
term, term,
DISPOSITIONS WITH A TERM € property should be € property should be
ART 878. delivered to INTESTATE delivered to the
HEIRS (not to be placed INSTITUTED HEIR.
A disposition with a suspensive term under adminstration!)
€ does not prevent the instituted heir from No requirement for
acquiring his rights, and transmitting them to A caucion muciana is caucion muciana.
his heirs, required to be posted.

even before the arrival of the term.

When does the heir's right vest?

▪ In dispositions with a term, the heir's right
vests upon the testator's death

What happens if the heir dies before the arrival of

the suspensive term?
▪ Its ok. He merely transmits his right to his
own heirs.
 - 40

DISPOSTIONS WITH MODES Distinguish a mode from a condition.

ART 882. CONDITION MODE
▪ The condition must ▪ Imposes a burden, but
The statement of: happen or be fulfilled the heir gets the
1. The object of the institution, OR first before the heir property right away
2. The application of the property left by will be entitled to ▪ It obligates but does
the testator, OR succeed. not suspend.
3. The charge imposed upon him (the heir) ▪ It suspends (the
€ shall NOT be considered as a condition, effectivity) but does
Unless, it appears that such was his (testator) not obligate.
intention.
Rabadilla vs. CA
That which has been left in this manner Condition was imposed on the devisee that
€ may be claimed at once, he should give sugar to someone every year until
Provided that, that person dies. Should the devisee die, his own
▪ The instituted heir, or his heirs, heirs still have the obligation to give the sugar
▪ Give a security for compliance with the yearly.
wishes of the testator, and Here the testator intended the property to
▪ For the return of anything he or they may be inherited by the devisee. It was clear that the
have received, (together with its fruits testator imposed an obligation on said instituted heir
and interests), and his own heirs. However, it did NOT make the
▪ If he or they should disregard this institution of the devisee dependent on the
obligation. performance of said obligation. It was clear that
should the obligation (of giving sugar) be not
complied with, the property shall be turned over to
What is a mode? the testator's near descendants. Thus the manner of
▪ It is an obligation imposed upon the heir, institution of the devisee is evidently modal in nature
without suspending the effectivity of the because it imposes a charge upon the instituted heir
institution or the rights to the succession without however affecting the efficacy of such
[RABADILLA VS. CA] institution.
▪ Since it imposes an obligation upon the heir,
the heir may choose to renounce it if he does
not want to be burdened. ART 883, par 1.

When without the fault of the heir,

How can a mode be imposed? ▪ an institution referred to in the preceding
▪ It must be clearly imposed as an obligation in article cannot take effect in the exact
order to be considered as one. manner stated by the testator
▪ Mere preferences or wishes expressed by the
testator are not modes. € it shall be complied with in a manner most
▪ An obligation imposed upon the heir should analogous to and in conformity with his wishes.
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 What is the rule on analogous performance/
institution should be considered as modal and constructive compliance?
not conditional. [RABADILLA VS. CA] ▪ If a modal institution cannot be literally
performed, it may be complied with in an
Why do we resolve in favor of a mode? analogous manner, taking into account the
▪ Because a mode is more conducive to the purpose of said institution.
efficacy of the will. ▪ Ex. duty of providing rice € if it cannot be
literally complied with, € provide camote
instead!
Is a caucion muciana required?
▪ Yes. For modal institutions, a caucion
muciana is required. Summary of Terms, Conditions, Modes:

What are the 3 instances where a caucion muciana is

What are the things imposed by the testator in a required?
modal institution? (indicators of a modal institution) 1) Negative potestative conditions – 874
1) The object of the institution and 879
2) The purpose or application of the property left 2) Suspensive terms – 885 par. 2
by the testator 3) Modal institution – 882
3) The charge imposed by the testator upon the
heir. [RABADILLA VS. CA] Who requires the bond?
▪ The intestate heirs.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 41 -

LEGITMES SPOUSES MANONGSONG VS. ESTIMO

The contract of sale does not deprive the compulsory
Balane: You don't know succession if you don't know heirs of their legitimes. A valid sale for valuable
legitimes! consideration does not diminish the estate of the
seller. When the disposition is for a valuable
Background: consideration, there is no diminution of the estate
There are 3 successional systems. but merely a substitution of values, that is, the
1. Absolute freedom – no legitimes (ex. US) property sold is replaced by the equivalent monetary
2. Absolute reservation – all legitimes consideration.
3. Partial reservation – (French, Spanish,
German)
Who are these certain heirs?
Our successional system is the partial reservation ▪ They are the compulsory heirs. Art 887.
system, which reserves a portion of the net estate in ▪ The compulsion is not on the part of the heirs
favor of certain heirs. but on the part of the testator.
▪ The compulsory heirs may still choose to
Legitime: Is that portion so reserved. See Art 886. accept or reject it.
Free Portion: Is that portion left available for
testamentary dispositions after the legitimes have
been covered. ART 887.

The following are compulsory heirs:

Primary 1. The legitimate children and
ART 886. Compulsory descendants, with respect
(Define Legitime) € They are to their legitimate parents
preferred and ascendants.
▪ Is that part of the testator’s property over and
▪ Which he cannot dispose of exclude the 1a. (also adopted children,
▪ Because the law has reserved it for secondary. legitimated children)
certain heirs,
€ who are therefore called, compulsory ▪ They will all share equally
heirs. regardless of age, sex, or
marriage of origin.
▪ As to legitimate descendants:
What is the nature of legitimes? The nearer exclude the more
▪ It is a quota, portion, fraction, pro-indiviso remote. Children exclude
share of the estate. grandchildren
▪ It is NOT specific property. ▪ Exception: rule on
▪ It is NOT a money value. representation when proper.
▪ Legitimes are set aside by mandate of the
law. The testator is prohibited from disposing
by GRATUITOUS TITLE (either inter vivos or
mortis causa) because the testator is
compelled to set aside legitimes in favor of
certain heirs.

Are onerous dispositions prohibited?

▪ No. Because in theory, nothing is lost from
the estate in an onerous transaction, since
there is merely an exchange of values.

SPOUSES JOAQUIN VS. CA

The right of the heirs are merely inchoate and vests
only upon their parents' death. While still living, the
parents (from whom they are to inherit) are free to
dispose of their properties. In their overzealousness
to safeguard their future legitime, the heirs forget
that theoretically, the sale of the lots to their siblings
does not affect the value of their parent's estate.
While the sale of the lots reduced the estate, the
cash of equivalent value replaced the lots taken from
the estate.
 - 42

Secondary 2. In default of the foregoing, Concurring 3. The widow or widower

Compulsory legitimate parents and Compulsory (surviving spouse)
€ They ascendants, with respect to € They are
receive their legitimate children and not excluded ▪ Refers to the spouse of the
legitimes only descendants. by the decedent, not the spouse of the
in default of primary or predecease heir-child.
the primary. ▪ As to legitimate ascendants, secondary [ROSALES VS. ROSALES]
only in default of parents. The heirs, Neither ▪ The marriage between the
nearer exclude the more do they decedent and the surviving
remote. (You can go up to exclude one spouse must be either VALID,
whatever degree). another. or AT LEAST VOIDABLE (having
They succeed no final decree of annulment
together with yet, at the time of the
2a. (also illegitimate parents) the primary decedent's death)
and ▪ In case the spouse dies during
▪ The illegitimate ascending line secondary the pendency for declaration of
includes only parents, it does heirs. nullity under Art 36 or Art 40
not go beyond the parents. FC, the case proceeds [CARINO
VS. CARINO]
Legitimate € are ▪ In case of legal separation,
Parents / excluded only ➢ Mere
Ascendants by legitimate estrangement is not a
children ground for
disqualification of the
Illegitimate € are surviving spouse
Parents (only) excluded by ➢ During
both pendency ofpetition for
legitimate and legal
illegitimate separation, in case of
children death of EITHER spouse,
the case is dismissed €
still entitled to inherit
[LAPUZ VS. EUFEMIO]
➢ After there has
ben
decree of separation,
➢ the guilty spouse is
disqualified (from the
legitimes / compulsory
succession only)
➢ the innocent spouse
stilentitled.

4. & 5. Illegitimate children/

descendants.

▪ Note: The FC has abolished the

distinction between natural and
spurious children. All
illegitimate children are given
equal legitimary portions. (But
death prior to August 3, 1988,
old distinctions apply, the
spurious gets 4/5 of the
natural.)
▪ As to illegitimate descendants,
the rule is also the nearer
exclude the more remote,
except in cases of
representation, when proper.

Rosales vs. Rosales

Widow Irene insisted on getting a share of
the estate in her capacity as the surviving spouse of
the Carterio, the son of the deceased. She claims
that she is a compulsory heir of her mother-in-law,
together with her son, Macikequerox.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 43 -

4. legitimate children ½ estate divided

Is the widow (surviving spouse) an intestate heir of equally
her mother-in-law? Illegitimate children Share equal to ½
No. The provision in Art 887 refers to the of 1 legitimate
estate of the deceased spouse, in which case the child, (each)
surviving spouse (widow or widower) is a compulsory
heir. It does not apply to the estate of a parent in 5. legitimate children ½ estate divided
law. equally
Illegitimate children** Share equal to ½
The surviving spouse is considered a 3rd person as (subject to reduction) of 1 legitimate
regards the estate of the parent-in-law. Since the child, (each)
estate which is the subject mater of the intestate Surviving spouse* Share equal to
proceedings in this case is that of the mother-in-law (preferred) that of 1
of the widow, Irene cannot claim to be a compulsory legitimate child
heir. She also cannot assert the right of
representation as she has no filiation by blood with 6. One legitimate child ½ estate
her mother-in-law.
Illegitimate children** Share equal to ½
(subject to reduction) of 1 legitimate
How about the son, Macikequerox? Can he represent
child, (each)
his father in the inheritance of his grandmother?
Surviving spouse* ¼ estate
Yes. Macikequerox is called to succession by
(preferred)
law because of his blood relationship. He does not
succeed his father Carterio (the person represented),
who predeceased his grandmother BUT in fact
succeeds from the grandmother, from whom his 7. Legitimate parents alone ½ estate
father would have succeeded.
8. Legitimate parents ½ estate
LAPUZ VS. EUFEMIO Illegitimate children ¼ estate
An action for legal separation involves
nothing but the mere bed-and-board separation of 9. Legitimate parents ½ estate
the spouses and is purely personal. Being personal in Surviving spouse ¼ estate
character, it follows that the death of one party to
the action causes the death of the action itself (actio 10. Legitimate parents ½ estate
personalis moritum cum persona). Hence, they Illegitimate children ¼ estate
cannot survive the death of the plaintiff if the death Surviving spouse 1/8 estate
occurs prior to the decree.
11. Surviving Spouse alone ½ estate
In short, an action for legal separation is abated by OR
the death of the plaintiff. If death supervenes during 1/3 estate if
the pendency of the action, no decree can be articulo mortis
forthcoming. marriage

Note that it does not matter who dies, it can be the 12. Surviving spouse 1/3 estate
guilty spouse or the innocent spouse. Illegitimate children 1/3 estate

13. Surviving spouse ¼ estate

What is the foundation of the legitimary system in Illegitimate parents ¼ estate
the Civil Code?
▪ The principles of exclusion and concurrence.
14. Illegitimate children ½ estate
alone
Different combinations: Art 888-903
1. legitimate children ½ of the estate 15. Illegitimate parents ½ estate
alone
alone divided equally

2. legitimate children ½ estate, divided ***note that a legitimate child includes an adopted
equally child.
***Balane: There is a premium on legitimacy and
surviving spouse Share equal to
blood relations.
that of 1 child

3. one legitimate child ½ estate

surviving spouse ¼ estate
 - 44

BARITUA VS. CA Rule for Surviving Spouse ALONE

The parents of the deceased succeed only Surviving Spouse as the Sole ½ of estate
when the latter dies without a legitimate descendant. Compulsory Heir
On the other hand, the surviving spouse concurs 1. If marriage was in 1/3 of estate
with all classes of heirs, even if such spouse had articulo mortis
been estranged from the deceased. Mere 2. The testator died within 3
estrangement is not a legal ground for the months from the time of
disqualification of a surviving spouse as an heir of said marriage.
the deceased spouse. 3. The parties did NOT
cohabit for more than 5
years
Basic Legitime 4. The spouse who now died
▪ every time there's a legitimate child/ren – ½ was the party who, at the
always from the estate. time of marriage, was at
the point of death.

Rule for Descendants Other than Children (Art 888).

▪ The general rule is that the nearer exclude the
more remote. Ex. Grandchildren cannot inherit Rule on Reduction of Legitimes (Shares)
if there are children. a. legitimate children € never reduced,
▪ UNLESS, ALL the children renounce, in which they are primary
case all the grandchildren become the nearest and preferred
in degree. b. surviving spouse € never reduced
▪ Similarly, great-grandchildren cannot inherit c. illegitimate children € subject to
unless ALL children and ALL grandchildren also reduction, pro rata,
renounce. without preference
▪ The exception to the general rule is (you get the
representation when proper. remaining portion,
Representation occurs in the following divide it by the
instances: number of
a. predecase illegitimate children)
b. incapacity
c. disinheritance

Also there is no limit as to the number of ART 902.

degrees in the descending line that may be
called to succeed, whether in their own right The rights of illegitimate children (set forth in
or by representation. the preceding articles)
€ are transmitted upon their death
€ to their descendants, whether legitimate or
Rule for the Ascending Line (Art 889) illegitimate.
▪ they are only secondary compulsory heirs.
▪ They succeed only in default of the legitimate
descending line. What is the right of representation?
1. The nearer exclude the more ▪ It is the right of the descendants to get the
remote – there is no representation legitime of their parents.
in the ascending line. ▪ It is not really representation but more of
2. Division by line – the legitime is subrogation or successional subrogation.
divided equally between the
paternal side and the maternal side
3. Equal division within the line To whom is the right of representation granted?
When Decedent Child When Decedent Child
is Legitimate is Illegitimate
Rule for Surviving Spouse With Children
- the right of - the right of
▪ Share equal to that of one legitimate child (in
representation is representation is
case spouse concurs with legitimate children)
given only to the granted to both
▪ Even if all these children renounce, spouse'
legitimate legitimate and
share will still be computed on the basis of the
descendants illegitimate
children's share had they accepted (not on the
descendants
basis of the number of grandchildren) € you
still divide by the number of children so as not
to trifle with the legitime of the spouse by the
mere expedient of all the children agreeing to
renounce.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 45 -

ART 891. When is there a reserva troncal?

RESERVA TRONCAL ▪ CHUA VS. CFI (Requisites)
1. The property was acquired by a person
The ascendant who inherits from his (PREPOSITUS) from an ascendant, brother
descendant or sister (ORIGIN)
▪ Any property which the latter may have € by gratuituous title (First Transfer)
acquired a. by donation
▪ By gratuitous title b. by any kind of succession
▪ From another ascendant, brother or
sister, ▪ Note: no inquiry is to be made beyond
the Origin. It does not matter who the
€ is obliged to reserve such property owner of the property was before it was
▪ As he may have acquired acquired by the Origin.
▪ By operation of law
2. That said person dies without legitimate
€ for the benefit of relatives issue/ descendants.
▪ Who are within the 3rd degree, AND ▪ Only a legitimate descendant will
▪ Who belong to the line from which said prevent the legitimate ascendant from
property came. inheriting by operation of law.

3. That the property is inherited by another

Origin ascendant (RESERVISTA)
R'ista € by operation of law (Second Transfer)
a. by legitimes
Gratuitous Operation b. by intestacy
title of law by intestacy
(donation or (legitimes or ▪ Note: It is this Second Transfer that
succession) intestacy) creates the reserva. [SOLIVIO VS. CA]

Prepositus 4. That there are relatives (RESERVATARIOS)

within the 3rd degree (from Prepositus)
R'ios belonging to the line from which said
property came.

▪ Note: Here, there is a Third Transfer as

the Effect of the Reserva.
What is the reserva troncal?
▪ It is simply a restriction or encumbrance upon 5. Note: All the relationships among the
property parties must be all legitimate. The
provisions of Art 891 apply only to
legitimate relatives. [NIEVA VS. ALCALA]
What is the purpose of reserva troncal?
▪ It is a special rule designed to assure the return
of reservable property to the third degree SOLIVIO VS. CA
relatives belonging to the line from which the Bachelor had only 2 surviving relatives, one
property originally came, and to avoid its being was his maternal aunt, the other was his paternal
dissipated by the relatives of the inheriting aunt. Bachelor's mother earlier inherited from her
ascendant. mother. When the mother died, Bachelor inherited.
▪ Concretely, it is to avoid the danger that When the Bachelor died, maternal aunt claims sole
property existing for many years in the family's ownership, paternal aunt claims inheritance as well.
patrimony might pass gratuitously to outsiders
through the accident of marriage and untimely No reserva troncal. Here, there was no second
death. transmission. The property of the Bachelor is not
▪ In short, it is to bring back the property back to reservable property because he was not an
the line of origin. ascendant but the descendant of his mother, from
▪ According to some, it operates as a form of whom he inherited the property. He need not reserve
compensation for the lack of representation in it in favor of his maternal aunt. The reserva troncal
the ascending line. applies only to properties inherited by an ascendant
from a descendant who inherited it from another
2 Conditions for Reserva ascendant, brother or sister. It does not apply to the
1) death of the R'ista property inherited by a descendant from his
2) survival of the R'ios ascendant.

For there to be a reserva, the 2 transfers or

transmissions are required.
 - 46

Who are the parties involved in the reserva tronacal?

1. ORIGIN EDROSO VS. SABLAN
▪ the transferor in the first transfer The ascendant who inherits from a descendant
▪ the ascendant, brother or sister of the acquires the inheritance by virtue of a title perfectly
Prepositus transferring absolute ownership. All the attributes of
the right of ownership belong to him. This absolute
Note: in case of brother or sister, there are 2 schools ownership is not altered for as long as
of thought: a) there be NO relatives within the 3rd degree in
a. that the relationship must be half-blood the line from which the property came, OR
because if it is full-blood, it would not be b) said relatives die before the ascendant
possible to identify the line of origin,
either paternal or maternal. In short, should there be
b. there is no need to distinguish between a) relatives within 3rd degree, AND
full or half-blood bro/sis. b) said relatives (R'ios) survive the R'ista,
at the time of the R'ista's death,
then the limitation on absolute ownership will
arise.
2. PREPOSITUS
▪ the first transferee The ascendant (R'ista) acquires the property with a
▪ the descendant, brother or sister of the condition subsequent: whether or not there exist at
Origin the time of his death, relatives with the 3rd degree. If
▪ receives the property from the origin by such relatives (R'ios) exist, they acquire ownership
gratuitous title of the property at the death of the ascendant
▪ while the property is with the Prepositus, (R'ista). If they (R'ios) do not exist, then the
there is still no reserva. ascendant (R'ista) may freely dispose thereof.
▪ He is the “arbiter” of the reserva (Sanchez
Roman) Hence, the R'ista has legal title but subject to a
condition. He can do anything that a genuine owner
He still has all the rights of ownership and may can do.
prevent the reserva from arising by:
1. substituting or alienating the property
2. bequeathing (through a will) or devising it to Does the R'ista have the power to appoint, by will,
either the potential reservista or to 3rd who among the reservatarios will get the reserva?
persons. Why?
3. partitioning it and assigning it to parties other ▪ No. [GONZALES VS. CFI]
than the potential reservista. ▪ Because the reserved property does not form
part of her estate.

GONZALES VS. CFI

3. RESERVISTA
▪ the other ascendant of the Prepositus of May the R'ista convey by will to the R'ios within
whatever degree, the 3rd degree and bypass the R'ios within the 2nd
degree? (favor the grandchildren over her own
▪ He is the one obliged to reserve
▪ The reserva arises only at the time of the children)?
R'ista's receives the property from the P.
▪ Upon the R'ista death, the property passes No. Mrs. Legarda cannot convey in her will to her
by strict operation of law according to the grandchildren the reserved property which she had
rules of intestate succession to the proper inherited from her descendant daughter because the
R'ios. reserved properties did not form part of her estate.
The R'ista cannot make a disposition mortis causa of
What is the nature of the reservista's right? the reserved properties as long as the R'ios survive
[EDROSO VS. SABLAN] the R'ista.
a) The R'ista right over the property is one of
Art 891 clearly indicates that the reserved properties
ownership.
should be inherited by the nearest relatives within
the 3rd degree from the prepositus, which in this
b) The ownership is subject to a resolutory
case, are the children of Mrs. Legarda.
condition (i.e., the existence of R'ios at the
time of the R'ista death)
Since the reserved property does not form part of
€ The right of the R'ista terminates upon
the R'ista lawful inheritance, nor legitime, the R'ista
the happening of the resolutory condition.
has the strict obligation to delivery it to the relatives.
c) The right of ownership is alienable. (subject The property should go to the nearest relatives
to the same resolutory condition) (R'ios). The R'ista cannot by means of her will, chose
the R'ios to whom the property should be awarded.
d) The R'ista right of ownership is registrable.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 47 -

4. RESERVATARIOS the rules of intestate succession are followed,

▪ the relatives benefited the reservatarios nearer in degree to the
▪ the reserva is in favor of a class, collectively Prepositus will exclude those more remotely
▪ Two Requisites: related. (Hence, there is no equal sharing in the
1. must be within the 3rd degree of class).
consanguinity from the Prepositus
[CABARDO VS. VILLANUEVA]
2. must belong to the line from which PADURA VS. BALDOVINO
the property came. Upon the death of the ascendant reservista, the
reservable property should pass, NOT to ALL the
Note: R'ios need NOT be alive when the reserva is reservatarios as a class, but only to those nearest in
created. This is because the reserva is in favor of a degree to the descendant-prepositus, excluding the
class. reservatarios of a more remote degree.
As long as the R'io is alive at the time of the R'ista's
death, even if born conceived and born after the Proximity of degree and right of representation are
Prepositus' death! the basic principles in ordinary intestate succession.
In other words, the reserva troncal merely
determines the group of relatives (R'ios) to whom
From whom do the R'ios inherit? the property should be returned, but within that
▪ The R'ios receives the property as conditional group, the individual right to the property shouldbe
heirs of the descendant Prepositus. [CANO VS. decided by the applicable rules of ordinary intestate
DIRECTOR] succession since Art 891 does not specify otherwise.

CANO VS. DIRECTOR

The R'ios is not the R'ista successor. The R'ios Can there be representation among reservatarios?
receive the property as a conditional heir of the ▪ Yes. [FLORENTINO VS. FLORENTINO]
descendant Prepositus since the property is merely ▪ Actually, there will only be ONE instance of
reverting to the line of origin from which it had representation among reservatarios € in case of
temporarily and accidentally strayed during the the Prepositus being survived by the bro/sis and
R'ista lifetime. children of a predeceased or incapacitated
Since the R'ios nearest to the Prepositus bro/sis.
becomes automatically and by operation of law the ▪ The relatives within the 3rd degree will have
owner of the reserved property upon the R'ista only an expectation to the property while the
death, the R'ios acquire the property without need ascendant (R'ista) lives, an expectation that can
of estate proceedings. be transmitted to their own heirs, provided that
they are also within the 3rd degree.

What is the nature of the Reservatarios right?

[SIENES VS. ESPARCIA] FLORENTINO VS. FLORENTINO
a) The R'ios have a right of expectancy over Following the law in legitimate succession, when
the property there are relatives of the descendant within the 3rd
degree, the right of the nearest relative (R'io), over
b) The right is subject to a suspensive the property which the R'ista should return to him,
condition (i.e., the expectancy will ripen into excludes that of the one more remote.
ownership only if the R'ios survive the
R'ista). The right of representation cannot be alleged when
the one claiming the same as a Reservatario is not
c) The right is alienable. (subject to the same among the relatives within the 3rd degree belong to
suspensive condition) the line from which the property came.

d) The R'ios right is registrable. The right granted by Art 891 is in the highest
degree personal and for the exclusive benefit of the
designate persons who are the relatives within the
SIENES VS. ESPARCIA 3rd degree. Therefore relatives of the 4th and
The reserva constitutes a real right which the succeeding degrees can never be considered as
R'ios may alienate and dispose of, conditionally, the reservatarios.
condition being that the alienation shall transfer
ownership to the buyer if and only if the R'ios survive In short, there is a right of representation on the
the R'ista. Any sale made by the R'ios prior to the part of the R'ios who are within the 3rd degree, as in
death of the R'ista became effective because of the the case of nephew and nieces of the deceased
occurrence of the suspensive condition (survival of from who the reservable property came. These R'ios
the R'ios). have the right to represent their ascendants
(fathers and mothers) who are the brothers of the
said deceased person and relatives within the 3rd
Is there a preference among reservatarios? degree.
▪ Yes. According to [PADURA VS. BALDOVINO],
 - 48

GONZALES VS. CFI

The R'ios do not inherit from the R'ista but from
the descendant Prepositus, of whom the R'ios are As much as of the Every single property
the heirs mortis causa, subject to the condition that potentially reservable
(regardless of Origin or
they must survive the R'ista. property as possible
Own-Acquired) will pass,
must be deemed partly by operation of
included in that part that
law, and partly by the
What kind of property may be included in the reserva passes by operation of will, in the same
troncal? law. proportion that the part
▪ Any kind. Movable or immovable, fungible or given by the will bears in
infungible, fruit-bearing or not, corporeal or relation to the part not
incorporeal. given.
▪ Money? – yes, provided it is in a form of deposit. Note: there may be
other portions reservable
depending on how much
May the property be substituted? the Prepositus institutes
▪ The very self-same property must undergo the 3 in favor of the
transfers in order for the reserva to arise. Ascendant-Reservista.
▪ If the prepositus substitutes the property (ex, by *read more.. The reserva minima is more accepted
selling, barter or exchange), then the in the Philippines.
substituted property will not be reservable.
▪ After all, the Prepositus has the power to decide
if a reserva will arise. The Prepositus has
plenary powers of ownership. OBLIGATIONS OF THE RIGHTS OF THE
▪ The reserva commences only when the property RESERVISTA RESERVATARIOS
is received by the R'ista. 1. To inventory the property € to enable the R'ios
to know what to expect.
2. In case of immovables € annotate its reservable
character in the Registry of Property within 90
RESERVA MAXIMA & RESERVA MINIMA days from acceptance by the R'ista. [SUMAYA
VS. IAC]
Requisites: 3. In case of movables € appraise its value.
1) If the Prepositus makes a will instituting the 4. To secure by means of mortgage:
Ascendant-Reservista to the whole or part of the a. indemnity for any deterioration or
free portion; AND damage to the property due to the fault
2) There is mixture of properties – there is left in of the R'ista.
the Prepositus' estate, upon his death, property b. Payment for the value of the reserved
reservable and property not reservable. movables which may have been
alienated by the R'ista.

Ex. If the Prepositus institutes the R'ista, who is also

a compulsory heir to ½ of his (P) estate but his How is the Reserva Troncal extinguished?
estate has mixed properties. Note that P has no 1. death of the R'ista
legitimate issue but he has R'ios such as bro/sis. 2. death of ALL the R'ios
3. renunciation by ALL the R'ios (but a future
In that case, ½ of P's estate goes to the R'ista as R'ios is not bound by such renunciation € a
legitime, the other ½ also goes to R'ista by virtue of conditional extinguishment)
the will. In effect, the whole estate is given to the 4. total and fortuitous € loss of the reserved
Ascendant-Reservista. property
5. confusion or merger of rights between R'ista
However, note that Prepositus has mixed properties. and R'ios (as in the case of a contract)
If he another property (not from the Origin but from 6. prescription or adverse possession.
his own acquisition), the problem arises as to which
properties the reserva is created.

RESERVA MAXIMA RESERVA MINIMA

Back to Legitimes tayo…
- the property from the - You take the proportion
Origin (the whole of from both kinds of ART 904.
which) is subject to the properties (both from
Reserva. You have to fit the Origin and from his 1. The testator cannot deprive his
as much of the Own Acquisition). compulsory heirs of their legitime,
reservable property into - ½ from the Origin's € except in cases expressly provided for
the ½ legitime. property and ½ from by law.
Own-Acquired property.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 49 -

2. Neither can he impose upon the same any: What is the scope of this prohibition?
a. burden, ▪ This article applies only to compromises or
b. encumbrance renunciation between the predecessor and the
c. condition, or prospective compulsory heir.
d. substitution ▪ Note: there is also a prohibition between a
€ of any kind whatsoever. prospective compulsory heir and another
(no CMT in legitimes!!) prospective compulsory heir, or a prospective
compulsory heir and a stranger € provision in
What are the 2 prohibitions on the part of the Oblicon.
testator regarding legitimes?
1. Prohibition to deprive the compulsory heirs of
legitimes ART 906.
▪ The legitime is not within the testator's
control, it passes to the compulsory heirs by Any compulsory heir to whom the testator left
strict operation of law. by any (gratuitous) title
▪ EXCEPTION: ▪ Less than the legitime belonging to him
€ in case of disinheritance: the law allows the
testator to deprive the compulsory heirs of € may demand that the same be fully satisfied.
their legitimes.

2. Prohibition to impose burdens on legitime When will this provision apply?

▪ EXCEPTIONS: ▪ The right of completion of legitime (actio ad
1) Art 1080 p. 2: a parent may desire to supplendam legitimam)
keep an enterprise intact and so may 1. Article 855 – when the title by which the
order that the legitime of other testator transmitted property is intestate
children to whom the property will succession. Art 855 is a true case of
not be assigned, be just paid in cash. completion of legitime (no preterition).
2) Art 1083, p.1: Testator may 2. Art 909 and 910 – donation inter vivos to
expressly forbid partition, the period compulsory heirs are imputable to their
of indivision however should not legitimes.
exceed 20 years.
3) Art 159 FC: the family home should € in both cases, anything that the compulsory heir
continue despite death of spouses, as receives by gratuitous title from the predecessor is
long as there is a minor beneficiary. considered as an advance on the legitime and should
The heirs cannot partition the same be deducted therefrom.
without court order.
4) Art 891: The Reserva Troncal. EXCEPTIONS: (When Not Counted as Legitime)
1. Art 1062 – When the donation inter vivos
was given with the express provision by the
testator that it should not be charged to the
ART 905. legitime of the donee-compulsory heir.
2. Art 1063 – Testamentary dispositions even
Every renunciation or compromise as regards a to a compulsory heir. (unless testator
future legitime expressly provides that it should be counted
▪ Between the person owing it, and as legitime).
▪ The compulsory heir

€ is void. AND
€ the latter (compulsory heirs) may claim ART 907.
the same upon the death of the former.
Testamentary dispositions that impair or
But the compulsory heirs must bring to diminish the legitime of compulsory heirs
collation whatever they may have received by € shall be reduced on petition of the same
virtue of the renunciation or compromise. € insofar as they may be inofficious or
excessive.

What is the duty to collate?

▪ Any property which the compulsory heir may ▪ Again, testamentary dispositions that exceed the
have gratuitously received from his predecessor disposable portion may be subject to reduction
will be considered as an advance on his legitime upon the instance of the compulsory heirs, to
and must be duly credited. the extent that the legitimes have been
impaired.
 - 50

ART 908. ART 909/ 910.

To determine the legitime: DONATIONS GIVEN TO DONATIONS GIVEN TO

1. the value of the property left at the CHILDREN (also STRANGERS
death of the testator shall be COMPULSORY HEIRS)
considered
(Also, donations
▪ Inventory of all the existing assets received by an
▪ Appraisal or valuation shall be at the time of illegitimate child
the decedent's death during the lifetime of
▪ You get the Gross Assets. his father or mother).

2. deducting all debts and charges which € shall be charged to € shall be charged to
shall not include those imposed in the their legitime. that part of the estate
will. of which the testator
could have disposed
▪ Deducting unpaid debts and charges by his last will.
▪ Only those obligations with monetary value Legitimes can never be In so far as they may
which are not extinguished by death should impaired. be inofficious or may
be paid. exceed the disposable
▪ The difference between the Gross Assets portion, they shall be
and the Unpaid Obligations = Available reduced according to
Assets. the rule established
by this Code.
Applies to Whom: Applies to Whom:
3. To the net value of the hereditary Donation inter vivos to A stranger is anyone who
estate shall be added the value (at the all compulsory heirs (not is not a compulsory heir.
time he made them) of all the just children but also (ex. bro/sis)
donations by the testator that are ascendants) are imputed
subject to collation. to the legitime. Donations to strangers
are imputed to the free
▪ Adding the value (only) of the donations Note that spouses are portion.
inter vivos prohibiting from
▪ Valuation should be as of the time the donating to each other They may also be
donations were respectively made. (since during marriage. reduced if they impair
donation transfers ownership upon legitimes.
acceptance, any increase or decrease in EXCEPTION: Note: Donations to
value is for the account of the donee). Art 1062: If the testator illegitimate children
▪ The sum of the Available Assets and the provides otherwise, that are subject to
Collated Donations = Net Hereditary Estate. the donation will not be reduction should they
counted or imputed as exceed the free
legitime. portion.
VIZCONDE VS. CA € in which case, the
Collation is the act by virtue of which donation is imputed to
descendants and other forced heirs bring into the the free portion.
common mass, the property which they received
from the predecessor, so that the division may be
made according to law and the will of the testator. ART 911.
Collation is required only of compulsory
heirs succeeding with other compulsory heirs. It also After the legitime has been determined in
involves only properties received by donation or according with the 3 preceding articles, the
gratuitous title during the lifetime of the decedent. reduction shall be made as follows:
The purpose is to attain equality among the
compulsory heirs. 1. Reduce pro-rata the Non-preferred DL and
Collation does not impose any lien on the testamentary dispositions.
property. What is brought to collation is not the 2. Reduce pro-rata the preferred DL.
property donated itself, but rather the value of such 3. Reduce the donation inter vivos according to the
property at the time it was donated. The rationale is inverse order of their dates (the last donation
that donation is a real alienation which conveys goes first, the first donation goes last).
ownership upon acceptance. 4. Reduce the legitimes of the illegitimate children.

Collation applies only to property given to *Note: You reduce step by step to the extent
compulsory heirs of the decedent. required to complete the legitimes. You stop
reducing as soon as the legitimes are sufficiently
covered.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 51 -

How are Devises and Legacies with usufructs, life When is there a disinheritance? Requisites.
annuities and pensions reduced? 1. It must be made in a will.
▪ If the value of these grants exceeds the free ART 916: Disinheritance can be effected
portion, it impairs the legitimes and should be only through a will
reduced. ▪ Wherein the cause therefor shall be
▪ The compulsory heir has 2 options: specified.
a) Delivering to the devisee or legatee the free
portion ▪ The will must be valid as to its form.
b) Complying with the testamentary provision ▪ The will must be admitted to probate.

2. It must be for causes specified by law.

ART 912. ▪ The causes are enumerated in Art 919-
921.
If the devise is: ▪ See article 918 for effects.
1. subject to reduction AND
2. consists in real property which cannot 3. The will must specify exactly which cause.
be conveniently divided ▪ The law is very strict because it regards
disinheritance with disfavor as it results
If the reduction is less If the reduction is ½ in the deprivation of legitimes.
than ½ of the value of or more of the value ▪ See article 918 for effects.
the thing of the thing
€ it shall go to the € it shall go to the 4. It must be unconditional.
devisee compulsory heir ▪ Implied in the nature of disinheritance. It
must not contain any conditions.
In either case, the compulsory heir and the
devisee shall reimburse each other in cash for 5. It must be total.
what respectively belongs to them. ▪ Disinheritance covers the entire
(reimburse the party who did not get his physical inheritance, not just the legitimes.
portion of the thing).
6. The cause must be true.
▪ See article 918 for effects.
ART 913.
7. If the truth of the cause is denied (by the
If neither the compulsory heir nor the devisee disinherited heir), it must be proved by the
avail themselves of the right under Art 912, proponent.
ART 917: (In case the disinherited heir
How may the thing devised be disposed of? should deny it,) The burden of proving
1) any other heir or devisee may acquire the the truth of the cause for disinheritance
thing and pay the parties their respective shall rest upon the other heirs of the
shares in money. testator.
2) If still no other heir or devisee should acquire
it, it shall be sold at a public auction and the
net proceeds should be divided accordingly. What is the effect if all of these requisites are
present?
▪ You get an valid disinheritance.
ART 914. ▪ It is a total exclusion from the inheritance.
▪ The disinherited heir forfeits:
The testator may devise and bequeath the free a) his legitime (compulsory)
portion as he may deem fit. b) his intestate portion, if any (intestate)
c) any testatmentary disposition made in a
prior will (testamentary)

ART 915-918.
What is the effect if some of these requisites are
DISINHERITANCE
absent?
▪ You get an ineffective disinheritance.
A compulsory heir, may,
▪ The heir “so-disinherited” shall still get his
▪ in consequence of disinheritance,
legitime. Art 918.
be deprived of his legitime
▪ for causes expressly stated by law.

What is the nature of disinheritance?

▪ It is the sole exception to the prohibition that
the testator may not deprive compulsory heirs of
legitime.
 - 52

ART 918: A disinheritance:

a. without a specification of the cause
b. or for a cause the truth of which is not
proved, if contradicted,
c. 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 DL and other testamentary
dispositions shall be valid to the extent as will
not impair the legitime.

champ.reyno © 2004
SUCCESSION (BALANE) CHAMP © 2004
Notes - 53 -

ART 919-921
GROUNDS FOR DISINHERITANCE

Disinherit Who?
919: CHILDREN/ DESCENDANTS 920: PARENTS/ ASCENDANTS 921: SPOUSE
1) when the C/D has been found 2) when the P/A has been convicted of 1) When the S has been convicted of
guilty of an attempt on the life of an attempt on the life of the testator, an attempt on the life of the testator,
the testator, his spouse, his spouse, ascendants, descendants his descendants or ascendants
ascendants, descendants
▪ attempted, frustrated,
consummated - same- - same-
▪ final conviction required

2) when the C/D has accused the 3) when the P/A has accused the 2) when the S has accused the
testator of a crime for which the testator of a crime for which the law testator of a crime for which the law
law prescribes imprisonment 6 prescribes imprisonment 6 years or prescribes imprisonment 6 years or
years or more, if the accusation more, if the accusation has been found more, if the accusation has been found
has been found groundless to be false to be false

a) filing of complaint before fiscal

b) presenting incriminating - same- - same-
evidence against testator
c) suppressing exculpatory
evidence

-refers to imprisonment of more

than 6 years.
-testator must be acquitted
-accusation must be groundless
€ acquittal beyond reasonable doubt.

3) When the C/D has been convicted 4) when the P/A has been convicted of
of adultery or concubinage with adultery or concubinage with the
the spouse of the testator spouse of the testator.

-final conviction required

-there must have been a valid - same-
marriage

4) When a C/D by fraud, violence, 5) When the P/A by fraud, violence, 3) When the S by fraud, violence,
intimidation, or undue influence, intimidation, or undue influence, intimidation, or undue influence,
causes the testator to make a will causes the testator to make a will or to causes the testator to make a will or to
or to change one already made change one already made. change one already made.

5) A refusal, without justifiable 7) The refusal to support the C/D 6) Unjustifiable refusal to support the
cause, to support the P/A who without justifiable cause. children, or the other spouse.
disinherits such C/D.

a) there must be a need for support - same- - same-

b) there must be a demand for
support
c) the demand must be unjustifiably
refused.

6) Maltreatment by the C/D of the

testator by word or by deed,

-must be either verbal or physical

assault
-must be serious in nature
-conviction not required, mere
commission sufficient
 - 54

7) When a C/D leads a dishonorable or

disgraceful life

-habituality required
-not just isolated cases
-need not be sexual
indiscretion

8) Conviction of a crime which carries

with it the penalty of civil interdiction.

-conviction is required.
1) when the parents have
a. abandoned their children,
- repeated or total refusal or
failure to care and support
b. induced their daughters to live a
corrupt or immoral life, or
-should also apply to sons,
-should also apply against
ascendants
c. attempted against their virtue
-conviction not required

6) the loss of parental authority for 5) When the spouse has given grounds
causes specified in this Code. for the loss of parental authority

-refers to culpable loss of PA, not -judicial decree NOT required

attainment of age of majority. -just giving grounds sufficient
-requires a judicial decree

8) An attempt by one of the parents

against the life of the other parent,
unless there has been reconciliation
between them.
4) when the spouse has given cause
for legal separation.

-judicial decree NOT required

Notes:
▪ these are exclusive grounds
▪ children € both legitimate and illegitimate
SUCCESSION (BALANE) CHAMP © 2004
Notes - 55 -
 - 56

ART 922.
If the person disinherited If the person disinherited
A Subsequent reconciliation between the is a child or descendant is the parent or
offender and the offended person ascendant, or the spouse
▪ deprives the latter (the offended person) € his own heirs may € his own heirs cannot
the right to disinherit, AND represent him represent
▪ renders ineffectual any disinheritance that To what extent may they
may have been made. represent?
▪ Both to the legitime
How can the testator forgive the offense? and the intestate
▪ Either by: portion that the
1) concrete and express pardon extended to the disinherited heir
offending heir. would have
2) unequivocal conduct towards the offending received.
heir which reveals the testator's intent to
forgive the offense.

INTESTATE SUCCESSION
What is the effect of reconciliation?
▪ If reconciliation is made before disinheritance €
the right to disinherit (later) is extinguished.
Review:
▪ If reconciliation is made after disinheritance €
▪ What are the 3 kinds of succession according to
the disinheritance itself is set aside.
importance?
This means that the disinherited heir:
1. compulsory
a) is restored to his legitime
2. testamentary
b) is entitled to his proportionate
3. intestate
share in intestacy, if any.
c) Remains entitled to the
testamentary dispositions (HDL), if
▪ The intestate succession yields to the 2 other
he was given some.
kinds. It operates only in default of the legitimes
and testamentary succession.
▪ But realistically, intestate succession occurs
most frequently because many people die
ART 923.
without a will.
The children and descendants of the
(descendant) disinherited
How do we define intestate or legal succession
€ shall take his place
again?
€ shall preserve the rights of compulsory heirs
▪ Intestate or legal succession takes place by
with respect to the legitime.
operation of law in default of a valid will.
▪ It Is the presumed or implied will of testator.
But the disinherited parent
€ shall not have the usufruct or administration
of the property which constitutes the legitime.
When does intestate succssion operate?
ART 960: Legal or intestate succession takes
place:
What is the rule on right of representation in
1) if a person dies
disinheritance?
a) without a will, or
▪ The right is granted only to descendants of the
b) with a void will, or
disinherited descendants.
c) one which has subsequently lost its
▪ The right of representation takes place only in
validity (efficacy)
the direct descending line, never in the
ascending line.
2) When the will does NOT:
▪ This is similar to Art 1035.
a) institute an heir to, or
b) dispose of
€ ALL the property of the testator.
Note:
▪ Representation occurs only in compulsory and
In which case legal succession takes place
intestate succession, NEVER in testamentary
only with respect to the property of which
succession.
the testator has not disposed.

3)
a. If the suspensive condition attached to
the institution of heir does not happen
or is not fulfilled, or
SUCCESSION (BALANE) CHAMP © 2004
Notes - 57 -

▪ But still observing the rule that the nearer

b. IF the heir exclude the more remote.
▪ Dies before the testator, or ▪ Lastly, in default of anyone called to succession,
▪ Repudiates the inheritance it is the presumed will that his property be given
to charitable and educational institutions.
€ there being no substitution, and
€ no right of accretion takes place
What are the 4 Basic Rules of Intestacy?
1) Rule of Relationship
4) When the instituted heir is incapable of ▪ of course, the heirs must be related to the
succeeding except in cases provided in this decedent. This relationship must first be
Code. ascertained.
▪ There are 4 kinds of relationships:
a. jus familiae – ascendants and
#1 refers to total intestacy descendants
#2,3,4 may be total or partial intestacy b. jus sanguinis – collaterals
c. jus conjugis – marriage
d. jus imperii – State or sovereign
Still there are other causes of intestacy:
5) happening of resolutory condition 2) Rule of Preference of Lines
6) expiration of resolutory term ▪ Note that there are 3 lines of relationship:
7) preterition a. descending line
b. ascending line
c. collateral line
▪ The descending excludes the ascending and
ART 961. collateral,
▪ The ascending excludes the collateral.
In default of testamentary heirs,
€ the law vests the inheritance 3) Rule of Proximity of Degree
(in accordance with the rules hereinafter set ▪ The nearer exclude the more remote,
forth), without prejudice to representation

1. in the legitimate and illegitimate relatives 4) Rule of Equality Among Relatives of the Same
of the deceased, Degree
2. in the surviving spouse, and ▪ Those of equal degree inherit in equal
3. in the State. shares.
Exceptions:
a) rule of preference of lines – the direct
ART 962. line is preferred over the collateral,
even if they are of the same degree.
In every inheritance, the relative nearest in b) The distinction between legitimate and
degree excludes the more distant ones, illegitimate filiation (ratio is 2:1)
€ saving the right of representation when it c) Rule of division by line in the ascending
properly takes place. line (Art 987)
d) The distinction between full-blood and
Relatives in the same degree shall inherit in half-blood bro/sis, nephews/nieces (Art
equal shares, 1006 & 1008) [PADURA] (ratio is 2:1)
€ subject to the provisions of e) Right of representation € ex. the
▪ Art 1006 — with respect to relatives of the grandchildren may inherit depending on
full or half blood, and their number.
▪ Art 987, p.2 — concerning division between
the paternal and maternal lines.

ART 963-966
The rules of intestacy is similar to that of succession RELATIONSHIP
to legitimes. They are both governed by the rules on
exclusion and concurrence. 963: Proximity of relationship is determined by
the number of generations.
What is the basis of intestate succession?
▪ The presumed will of the decedent Each generation forms a degree.
▪ The law puts itself in the heart and mind of the
decedent.
▪ As Manresa explains it: Love first descends, then 964: A series of degrees € forms a line
ascends, then finally spreads sideways. which may either be:
▪ Thus the law first calls the descendants, then a) direct or,
the ascendants, then finally the collaterals. b) collateral.
 - 58

What is the importance of degree?

Direct Line Collateral Line ▪ It determines proximity of relationship. Every
-is that constituted by the -is that constituted genereation is a degree.
series of degrees among by the series of ▪ Also, we recall the rule that: the nearer exclude
ascendants and descendants. degrees among the more remote.
persons who are not
ascendants and
descendants, ART 967.
-but who come from
a common ancestor. Full Blood Half-Blood
965: The direct line is (in short, they are Relationship Relationship
either: ascending or persons who are not -is that existing between -is that existing between
descending ascended or persons who have the persons who have the
descended from same father AND the same father, BUT not
Descending Ascending each other). same mother the same mother, or
-unites the -binds a vice versa.
head of the person
family with with those What is the importance of distinguishing between
those who from whom full-blood and half-blood?
descend he ▪ The distinction applies only to:
from him. descends. 1)brothers and sisters, and (Art 1006)
2)nephews and nieces (Art 1008)
966: In the line, as many degrees are counted ▪ There is a ratio of 2:1 for full-blood and half-
as there are generations or persons, excluding blood. But this applies only in intestacy!!!
the progenitor.

966: In the direct line, In the collateral line, ART 968.

ascent is made to the ascent is made to the
common ancestor. common ancestor, If there are several relatives of the same
AND then descent is degree,
Thus, the child is 1 made to the person
degree removed from with whom the And one or some of them are unwilling or
the parent, 2 from the computation is to be incapacitated to succeed,
grandfather, and 3 made.
from the great- € his portion shall accrue to the others of the
grandparent. Thus, a person is 2 same degree,
degrees removed from € save the right of representation when it
his brother, 3 from his should take place.
uncle (who is the
brother of his father),
4 from his first cousin, Is there accretion is intestacy?
and so forth. ▪ Yes, among heirs of the same degree for the
Limit: Ad infinitum Limit: 5 degrees following instances: (Art 1015)
1. predecease
2. incapacity
3. renunciation
What is the importance of line?
▪ However, if there is representation (only in the
▪ There are preferences made in intestacy. See
distinction between direct and collateral, descending line) in those 3 instances, then there
will be NO accretion.
ascending and descending.
▪ Should there be accretion, the heirs involved
must be in the same kind of relationship to the
What is the importance of distinguishing the direct
decedent. This is because of the preference of
and collateral lines?
▪ The direct line is preferred over the collateral. lines in intestate succession. (ex. all brothers, all
▪ Ex. lolo is preferred over kuya. grandchildren).
▪ Also, in the direct line € there is no limit to the
number of degrees. (you can go ad infinitum in
ART 969.
intestacy)
▪ In the collateral line € there is a limit, intestate
If the inheritance should be repudiated by
succession extends only to the 5th degree of
1. the nearest relative, should there be only
collateral relationship.
one, or
What is the importance of distinguishing the 2. by all of the nearest relatives called by law
descending direct and the ascending direct lines? to succeed, should there be several,
▪ The descending is preferred over the ascending.
▪ Ex. the anak is preferred over the lolo.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 59 -

€ those of the following degree shall inherit in ▪ But of course, a renouncer can represent the
their own right, person whose inheritance he has renounced.
€ and cannot represent the person or persons 976: A person may represent him whose
repudiating the inheritance. inheritance he has renounced.

What is the effect of renunciation by all in the same What kinds of succession may there be
degree? representation?
▪ The right of succession should first be passed on 1. Compulsory succession € as to the legitime
the heirs in succeeding degrees (successive 2. Intestate/ legal succession € as to intestate
order), before the next line can succeed. share.
▪ This is because of the rule of preference of lines. € BUT NEVER IN TESTAMENTARY SUCCESSION.

So how will the right be passed if an heir repudiates?

▪ First, to the descending line € if all of the Which line does the representation obtain?
descendants of a certain degree renounce, As to legitime As to intestacy
succession passes to the descendants of the -only in the direct line, -in the direct line (972)
next degree, and so on, ad infinitum. never in the ascending 972: The right of
▪ Second, to the ascending line € if nobody is left line. representation takes
in the descending line, the heirs in the 972: The right of place in the direct
ascending line acquire the right of succession, representation takes descending line, but
again in the order of proximity. place in the direct never in the
▪ Last, to the collateral line € if all the ascendants descending line, but ascending.
and descendants renounce, only then will the never in the
collateral relatives have the right to succeed. ascending. -in the collateral line
but only in case of
nephews and nieces,
representing their
ART 970-977. fathers or mothers, as
RIGHT OF REPRESENTATION the brothers or sisters
of the deceased.
What is this right of representation? 972: In the collateral
▪ 970: Representation is line, it takes place
o a right created by fiction of law, only in favor of the
o by virtue of which the representative is children of brothers
raised or sisters, whether
o to the place and the degree of the they be of the full or
person represented, and half blood.
o acquires the rights which the latter
would have 975: When the
o if he were living or could have children of one or
inherited. more
▪ Actually, representation should be termed
brothers/sisters of
“subrogation” since the representative does not the deceased
represent but actually takes the place of the
survive, they shall
person. What he receives is not for the benefit inherit from the
of the deceased but for himself! For his own
latter by
benefit! The inheritance is really for him, not for representation, if
the dead! they survive with
▪ 971: The representative is called to the their uncles or
succession by law, and not by the person aunts. But if they
represented. (deaceased or incapacitated
survive alone, they
na nga eh!) shall inherit in equal
▪ The representative does not succeed the portions.
person represented, but the one whom the
person represented would have succeeded.
Can illegitimate children represent?
If the person to be If the person to be
When does representation operate?
represented is a represented is an
1. Predecease (981)
legitimate child illegitimate child
2. Incapacity or unworthiness (1035)
€ only his legitimate € both legitimate and
3. Disinheritance (923)
€ BUT NEVER IN RENUNCIATION. children/descendants can illegitimate
represent him children/descendants can
▪ Hence, a renouncer cannot be represented.
represent him.
977: Heirs who repudiate their share
may not be represented.
 - 60

Can adopted children represent? Can they be

represented? a (decedent)
▪ No, no, no!
▪ An adopted child can neither represent nor be
represented. [TEOTICO VS. DEL VAL]
[SAYSON VS. CA]

b (person represented)
TEOTICO VS. DEL VAL
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. Hence, no c (representative(s))
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. 1. The representative must be qualified (art
1032) to succeed the decedent.
The adopted child cannot be considered as a relative
of the ascendants and collaterals of the adopting 2. The representative need not be qualified to
parents, nor of the legitimate children which they succeed the person represented.
may have after the adoption. Neither are the 3. The person represented need not be
children of the adopted considered as descendants of qualified to succeed the decedent € kaya
the adopter. The relationship created by adoption is nga he died, or was incapacitated, or
limited to the adopter and the adopted, and does not disinherited.
extend to other members of the family of either.
Only that the adopted is prohibited to marry the
children of the adopter (not because they are Distinguish representation by grandchildren and by
relatives, which they are not), but just to avoid nephews/nieces.
scandal. BY GRANDCHILDREN BY NEPHEWS / NIECES
-If all the children are -If all the brothers and
disqualified € the sisters of the deceased
How does representation operate? grandchildren still inherit are disqualified € the
▪ 974: Whenever there is succession by by representation nephews and nieces
representation, the division of the estate inherit per capita.
shall be made per stirpes, 982: The
€ in such manner that the grandchildren and 975: When the
representative(s) shall not inherit more other descendants children of one or
than what the person they represent shall inherit by right more brothers/sisters
would inherit, if he were living or could of representation. of the deceased
have inherited. survive, they shall
inherit from the latter
▪ Per stirpes. The representative(s) receive by representation, if
collectively only what the person represented they survive with their
would have received had he not died or not uncles or aunts. But if
been incapacitated. Among the they survive alone,
representatives, they divide the portion they shall inherit in
equally, in general. equal portions.
▪ Note: if the representatives are composed of But, even if only some, not all, of the children or the
legitimate and illegitimate children € they brothers and sisters are disqualified, the rule is still
just don't divide equally, you have to observe the same.
the distinction.
**Study problem on page 415.

Who are qualified to represent?

▪ Note: capacity to succeed is not the same as
capacity to represent.
▪ 973: In order that representation may
take place, it is necessary that the
representative himself be capable of
succeeding the decedent.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 61 -

ORDER OF INTESTATE SUCCESSION 6. Brother/Sister; Nephews/Nieces

Exclude: All other collaterals,
Compulsory Heirs in Intestate Heirs State
Legitimes Concur With: Surviving Spouse,
1. Legitimate C/D 1. Legitimate C/D Are excluded by: Legitimate Children,
2. Illegitimate C/D 2. Illegitimate C/D Illegitimate Children,
3. Legitimate P/A 3. Legitimate P/A Legitimate Parents,
4. Illegitimate P (only) 4. Illegitimate P (only) Illegitimate Parents
5. Surviving Spouse 5. Surviving Spouse
6. Bro/Sis, 7. Other Collaterals Up to the 5th
Nephews/Nieces Exclude: Collaterals in remoter
7. Other Collaterals – up degrees,
to the 5th degree only State
8. State Concur With: Collaterals in the same
degree
*1-5 exclude 6-8, except Are excluded by: Legitimate Children,
5&6 (they will concur) Illegitimate Children,
5&6 are given special Legitimate Parents,
preference Illegitimate Parents,
Surviving Spouse,
Bro/Sis; Nephews/Nieces
Intestacy Rules on Exclusion and Preference
8. State
1. Legitimate Children/Descendants Exclude: No one.
Exclude: Parents, Concur With: No one.
Collaterals, Are excluded by: Everyone above.
State
Concur With: Surviving Spouse,
Illegitimate Children
Are excluded by: No one. COMBINATIONS IN INTESTATE SUCCESSION —
TOTAL INTESTACY: (ART 960!)
2. Illegitimate Children/Descendants
Exclude: Illegitimate Parents, Note: the rules on exclusion and preference will also
Collaterals, come into play in intestacy.
State
Concur With: Surviving Spouse, 1.
Legitimate Children, Legitimate Legitime: Intestate Total Take
Legitimate Parents Children ½ portion: Home:
Are excluded by: No one. Alone the ½ free
portion The whole
3. Legitimate Parents/Ascendants divided, estate,
Exclude: Collaterals, equally divided
State equally.
Concur With: Surviving Spouse, Free:½
Illegitimate Children goes to all
Are excluded by: Legitimate Children

4. Illegitimate Parents (only) 2.

Exclude: Collaterals, Legitimate Legitime: Intestate Total Take
State Children ½ portion: Home:
Concur With: Surviving Spouse, Illegitimate Legitime: Apportion
Are excluded by: Legitimate Children, Children each gets residue to The whole
Illegitimate Children ½ share of both estate,
1 legitimate with each
5. Surviving Spouse legitimate and illegitimate
Exclude: Collaterals other than child illegitimate child
bro/sis, nephews/nieces children getting ½
State with the of share of
Concur With: Legitimate Children, ratio 2:1 1
Illegitimate Children, legitimate
Legitimate Parents, child.
Illegitimate Parents,
Bro/Sis; Nephews/Nieces Free: any
Are excluded by: No one. residue
left.
 - 62

3. 5.
Legitimate Legitime: Intestate Total Take Legitimate Legitime: Intestate Total Take
Children ½ Portion: Home: Parents ½ Portion: Home:
Surviving Legitime: Give the Alone Give all of
Spouse gets share residue to The whole them the Thus, the
of 1 all of estate, ½ free. whole
legitimate them. divided estate
child equally, went to
*spouse The them.,
counted as surviving divided
1 child. spouse equally
counted as Free: ½
1
legitimate 6.
child. Legitimate Legitime: Intestate Total Take
Free: any Ascendants ½ Portion: Home:
residue Alone Give all of
left. them the Thus, the
½ free. whole
3a. estate
One Legitime: Intestate Total Take went to
Legitimate ½ Portion: Home: them,
Child None. ½ divided
Surviving Legitime: Intestate Total Take equally +
Spouse ¼ Portion: Home: observe
The free ½ rule of
¼. division by
line
Free: 1/4 The whole Free: ½
estate was
given to 7.
them. Legitimate Legitime: Intestate Total Take
Parents ½ Portion: Home:
4. None. ½
Legitimate Legitime: Intestate Total Take Illegitimate Legitime: Intestate Total Take
Children ½ Portion: Home: Children ¼ Portion: Home:
Surviving Legitime: Apportion The free ½
Spouse share of 1 residue to The whole ¼.
legitimate both estate, Free: ¼
Illegitimate Legitime: legitimate with each
Children ½ share of and illegitimate 8.
1 illegitimate child Legitimate Legitime: Intestate Total Take
legitimate, children getting ½ Parents ½ Portion: Home:
each with the of share of None. ½
ratio 2:1 1 Surviving Legitime: Intestate Total Take
legitimate Spouse ¼ Portion: Home:
*the child The free ½
surviving And the ¼.
spouse is surviving Free: ¼
counted as spouse
1 counted as
legitimate 1 9.
child legitimate Legitimate Legitime: Intestate Total Take
child Parents ½ Portion: Home:
None. ½
Free: Thus the Illegitimate Legitime: Intestate Total Take
Residue whole Children ¼, divided Portion: Home:
estate equally None. ¼ divided
went to all equally
of them. Surviving Legitime: Intestate Total Take
Spouse 1/8 Portion: Home:
The free ¼
1/8.
Free: 1/8
SUCCESSION (BALANE) CHAMP © 2004
Notes - 63 -

10. 15.
Illegitimate Legitime: Intestate Total Take Surviving Legitime: Intestate Total
Children ½ Portion: Home: Spouse ½ Portion: Take
Alone The free None. Home:
½. The whole ½
estate, Illegitimate Legitime: Intestate Total
divided Bro/Sis None. Portion: Take
equally. The free ½ Home:
Free: ½ Nephews/ Legitime: Intestate ½
Nieces None. Portion:
11. Inherit by
Illegitimate Legitime: Intestate Total Take representation
Children 1/3 Portion: Home: only.
Half of the ½ Free: ½
free 1/3 =
1/6 16.
Surviving Legitime: Intestate Total Take Illegitimate Legitime: Intestate Total Take
Spouse 1/3 Portion: Home: Parents ½ Portion: Home:
Half of the ½ Alone The free ½
free 1/3 = The whole
1/6 estate.
Free: 1/3 Free: ½

12. 17.
Surviving Legitime: Intestate Total Take Illegitimate Legitime: Intestate Total Take
Spouse ½ ordinary Portion: Home: Parents None. Portion: Home:
Alone The free ½ Excluded. None. None.
The whole Children of Legitime: See Box # 1, 2, 10
estate. any kind ½
Free: ½
18.
13. Legitimate Legitime: Intestate Total Take
Surviving Legitime: Intestate Total Take Bro/Sis None. Portion: Home:
Spouse ¼ Portion: Home: Alone The whole
Half of the ½ free, The whole
free ½ = estate.
¼ If all full
Illegitimate Legitime: Intestate Total Take blood or all
Parents ¼ Portion: Home: half blood
Half of the ½ € divided
free ½ = equally.
¼
Free: ½ If mixed
blood €
14. 2:1 ratio
Surviving Legitime: Intestate Total Free:
Spouse ½ Portion: Take whole
None. Home: estate
½
Legitimate Legitime: Intestate Total
Bro/Sis None. Portion: Take
The free ½ Home:
Nephews/ Legitime: Intestate ½
Nieces None. Portion:
Inherit by
representation
only.
Free: ½

Remember: The person who has the free portion

may suffer reduction of his intestate share in case of
partial intestacy.
 - 64

19. 22.
Legitimate Legitime: Intestate Total Illegitimate Legitime: Intestate Total
Bro/Sis & None. Portion: Take Bro/Sis None Portion: Take
The whole Home: The whole free, Home:
free,
The If all full blood The
If all full blood whole or all half blood whole
or all half estate. € divided estate.
blood € equally.
divided
equally. If mixed blood
€ 2:1 ratio
If mixed blood Nephews/ Legitime: Intestate
€ 2:1 ratio Nieces None Portion:
Nephews/ Legitime: Intestate Inherit by
Nieces None. Portion: representation
Inherit by only
representation Free:
only Whole
Free: estate
whole
estate 23.
Nephews/ Legitime: Intestate Total Take
20. Nieces None. Portion: Home:
Nephews/ Legitime: Intestate Total Take Alone The whole
Nieces None. Portion: Home: free The whole
The whole estate.
free, The whole If all full
estate. blood or all
PROVIDED, half blood
See box € *per
#22 capita
Uncles/ Legitime: Excluded
Aunts None. [BACAYO If mixed
VS. blood €
BORROMEO] 2:1 ratio
Free:
whole
estate
Free:
21. Whole
Illegitimate Legitime: Intestate Total Take estate
Bro/Sis None Portion: Home:
Alone 24.
The whole The whole Other Legitime: Intestate Total Take
free, estate. Collaterals None. Portion: Home:
The whole
If all full free, The whole
blood or all estate.
half blood *Per
€ divided capita.
equally.
The nearer
If mixed exclude
blood € the more
2:1 ratio remote.
Free:
Whole Free:
estate Whole
estate
SUCCESSION (BALANE) CHAMP © 2004
Notes - 65 -

25. CORPUS VS. ADMINISTRATOR

State Legitime: Intestate Total Take Since Teodoro Yangco was an acknowledged
None. Portion: Home: natural child or was illegitimate and since Juanita
The whole Corpus was the legitimate child of Jose Corpus,
free The whole himself a legitimate child, we hold that the appellant
estate. Tomas Corpus has no cause of action for recovery of
Free: the supposed hereditary share of his mother, Juanita
Whole Corpus, as legal heir, in Yangco's estate. Juanita
estate Corpus was not a legal heir of Yangco because there
is no reciprocal succession between legitimate and
illegitimate relatives.

This rule is based on the theory that the illegitimate

Direct Descending Line Art 978-983 child is disgracefully looked upon by the legitimate
Including Adopted Children Family COde 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
SAYSON VS. CA resentment.
In the case of adopted children, while it is
true that the adopted child shall be deemed to be a
legitimate child and have the same rights as the LEONARDO VS. CA
latter, these rights do not include the right of Even if the petitioner is the child of
represenatation. The relationship created by the Leonardo, still he cannot, by right of representation,
adoption is between only the adopting parents and claim a share of the estate left by the decease Reyes
the adopted child and does not extend to the blood considering that he was born outside wedlock. His
relatives of either party. alleged putative father and mother were then not yet
married. At most, petitioner is an illegitimate child
Rules of Succession of an Adopted Child who has not right to inherit ab intestato from the
1. The adopted child inherits from his adopter legitimate children and relatives of his father, like
in exactly the same way and exactly the the deceased Reyes.
same extent as a legitimate child.
2. The adopted child remains an heir of his
biological parents and other blood relatives MANUEL VS. FERRER
(as if there was no adoption). This applies This is the principle of absolute separation
to both compulsory and intestate between the legitimate family and the illegitimate
succession. family. The doctrine rejects succession ab intestato
*see book for combinations, page 455. in the collateral line between legitimate relatives on
the one hand, and the illegitimate relatives on the
other.

Direct Ascending Line Art 985-987 What is meant by the law when it speaks of brothers
and sisters, nephews and nieces, as legal or intestate
heirs of an illegitimate child? It is clear that by virtue
Illegitimate Children Art 988-994 of this barrier, the legitimate brothers and sisters, as
well as the children, whether legitimate or
illegitimate, of such brothers and sisters, cannot
Art 992 is very important because it is the
inherit from said illegitimate child.
successional barrier between the legitimate and
illegitimate relatives of the decedent.
DIAZ VS. IAC
ART 992:
Art 992 provides a barrier or iron curtain in
An illegitimate child
that it prohibits absolutely a succession ab intestato
€ has no right to inherit ab intestato
between:
▪ From the legitimate children and
1. illegitimate child and
relatives of his father or mother
2. the legitimate children and relatives of the
€ Nor such children or relatives inherit in the
father or mother of said legitimate child.
same manner
▪ From the illegitimate child.
Between the legitimate family and the illegitimate
family, there is presumed to be an intervening
Note:
antagonism and incompatibility.
▪ An illegitimate cannot inherit from legitimate.
▪ Legitimates cannot also inherit from the
Art 902, 989 and 990 clearly speak of successional
illegitimate.
rights of illegitimate children, which rights are
▪ But an illegitimate can inherit from another
transmitted to their descendants upon their death.
illegitimate.
The descendants of these illegitimate children, who
 - 66

may inherit by virtue of representation may either be In testate succession In intestate succession
legitimate or illegitimate. Where there is only one The Child gets ½ and the
child surviving the surviving spouse gets
In whatever manner, one should not overlook the spouse, the child gets ½ also ½.
fact that the person to be represented are and the surviving spouse
themselves illegitimate. The right of representation is gets only ¼.
not available to illegitimate descendants of legitimate
children, in the inheritance of a legitimate
grandparent. Collateral Relatives Art 1003-1010

The right to represent illegitimate children however

is subject to the limitation prescribed in Art 992 The State Art 1011-1014
to the end that an illegitimate child has no right to
inherit ab intestato from the legitimate children, and How is the decedent's assets disposed in favor of the
relatives of his father or mother. State in intestacy?
If resident of the If never a resident of the
While the NCC may have granted successional rights Philippines Philippines
to illegitimate children, they however, read in Real Personal -real and personal
conjunction with Art 992, prohibit the right of Property Property property € where
representation from being exercised where the situated.
-where -to muni.
person to be represented is a legitimate child.
situated Of last
Needless to say, the determining factor is the
residence
legitimacy or illegitimacy of the person to be
represented.
How may the properties be used?
a. for the benefit of public educational and
If the person to be If the person to be
charitable institutions in the respective
represented is an represented is a
municipalities or cities.
illegitimate child legitimate child
b. The court may also order the creation of a
€ then his descendants, € his illegitimate
permanent trust for the benefit of the
whether legitimate or descendants cannot
institutions concerned.
illegitimate, may represent him because
May a person still claim the property from the State?
represent him the law provides that
▪ Yes. Provided such person is really entitled by
only his legitimate
succession to the estate (whether by
descendants may
compulsory, testamentary, or intestate
exercise the right of
succession)
representation by virtue
▪ The prescriptive period to make the claim is €
of Art 992.
5 years from the deliver of the property to the
municipality or city concerned.
Surviving Spouse Art 995-1002

SANTILLON VS. MIRANDA PARTIAL INTESTACY

Art 892 falls under the chapter on
testamentary succession, while Art 996 comes under ▪ The provisions and combinations above cover
intestate succession. Art 892 merely fixes the only cases of total intestacy.
legitime of the surviving spouse and the legitime of
children in testate succession. While it may indicate What happens if the decedent left a will disposing
the intent of the law with respect to the ideal shares only part of the free portion? What is to be done to
that a child and a spouse should get when the concur the remainder of the free portion?
with each other. It does not fix the amount of shares 1. First, trace where the free portion went in total
that such child and spouse are entitled when intestacy.
intestacy occurs. 2. Then, carry out the testamentary provision so
that you can determine the real net free
In intestacy, if there is only one legitimate child portion.
surviving with the spouse, since they share equally, 3. What is left of the free portion should then be
½ of the estate goes to the child and the other ½ given to the intended beneficiary in intestacy.
goes to the surviving spouse Although the law refers ▪ You use the provisions in total intestacy
to children or descendants, the rule in statutory to determine to whom you will give the
construction that the plural can be understood to real net free portion.
include the singular is applicable in this case.
*NOTE: you don´t simply divide the free portion!
If the surviving spouse and 1 legitimate child are life, *see book for example, page 457.
the surviving spouse has the same share as that of
the child.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 67 -

In short, in intestacy, accretion is subordinate to

representation.
PROVISIONS COMMON TO TESTATE AND
INTESTATE SUCCESSION ART 918: In legal succession, the share of the
person who repudiates the inheritance shall
always accrue to his co-heirs.
ART 1015-1023
RIGHT OF ACCRETION
How does accretion operate?
What is the right of accretion? 1. Accretion should be proportional.
▪ ART 1015: Accretion is the right by virtue ART 1019: The heirs to whom the portion
of which goes by the right of accretion,
€ when 2 or more persons are called to the € take it in the same proportion that they
same inheritance, devise or legacy, inherit.
the part assigned to:
1) the one who renounces, or 2. GR: ART 1020: The heirs to whom the
2) cannot receive his share, or inheritance accrues
3) who died before the testator, € shall succeed to all the right and
€ is added or incorporated, obligations
to that of his co-heir, co-devisees, or co- € which the heir who renounced or could
legatees. not receive it would have had.
EXCEPTIONS:
a. in testamentary succession, if the
What are the elements of accretion? testator provides otherwise
▪ ART 1016: In order that the right of b. if the obligation is purely personal,
accretion may take place in a testamentary hence intransmissible
succession, it shall be necessary that:

1) Two or more persons be called to ART 1021.

o The same inheritance, or
o The same portion thereof, Among the compulsory heirs,
€ pro indiviso; ▪ the right of accretion shall take place
▪ only when the free portion is left
What does pro-indiviso mean? a) to 2 or more of them, or
▪ That either of the co-heirs are instituted b) to anyone of them and to a stranger
without individual designation of shares.
▪ That the co-heirs are instituted with the Should the part repudiated be the legitime,
specification that they share equally or that ▪ the other co-heirs shall succeed to it in
they have the same fractional sharing. their own right
▪ In short, it means “undivided” or “in ▪ Not by the right of accretion
common”
As long as the result would be co-ownership, ▪ This shows that there is no accretion in the
regardless of equality or inequality. legitime.

2) One of the persons thus called: How does accretion take place in testamentary
o Die before the testator, or succession?
o Renounce the inheritance, or ▪ ART 1022: when the right of accretion
o Be incapacitated to receive it. does not take place
€ the vacant portion of the instituted
heirs
When will accretion take place?
▪ if no substitute has been
a. Predecease
designated
b. Renunciation
€ shall pass to the legal heirs of the
c. Incapacity
testator,
PROVIDED, only some, not all, of the instituted heirs
▪ who shall receive it with the same
give ground.
charges and obligations.
*these are the same grounds for simple substitution
▪ Hence, in testamentary succession, accretion
When will accretion take place in intestacy?
and substitution may overlap. But the
a. Predecease – only if there's no
substitution will prevail over the accretion.
representation
This is because substitution is the testator's
b. Renunciation – always
express intent, while accretion is merely his
c. Incapacity or Unworthiness – only if there's
implied intent.
no representation.
 - 68

▪ If there is neither substitution nor accretion, In short, it is enough that the HDL be already
the vacant part will go by way of intestacy. conceived when the decedent dies, provided it be
born later.

ART 1023.

Accretion shall also take place among Devisees, If institution of HDL is If institution of HDL is
Legatees, and Usufructuaries, under the same subject to a subject to a
conditions as established for Heirs. SUSPENSIVE SUSPENSIVE TERM
CONDITION
1. Successor HDL 1. Successor HDL
must be living at must be living at
the time the the time the
CAPACITY TO SUCCEED decedent dies, AND decedent dies.
(BY WILL OR BY INTESTACY) 2. At the time the
condition happens.
*note: Requirement #1 is absolute for both cases.
ART 1024. Not even representation is an exception because for
representation to occur, the representative must
Persons not incapacitated by law also be at least already conceived when the
€ may succeed by will or ab intestato decedent dies. (Art 971 and 973)
(intestacy). (see book example, page 465)
*this table also applies to juridical persons
The provisions relation to incapacity by will are
equally applicable to intestate succession.
PARISH PREIST OF TARLAC VS. RIGOR
There was a devise in favor of the nearest
Who may succeed by will or by intestacy? male relative who would become a parish priest, who
▪ Any person having capacity to succeed, as was forbidden to sell such land and would lose the
long as he has juridical personality. devise if he discontinued his studies for the
▪ Incapacity must be based on some legal priesthood.
ground and must be shown.
Issue: the time when the nearest male relative
Codal Provisions Applicability: would study for the priesthood should be
1. Art 1027, par.1-5 determined. Did the testator contemplate only his
▪ Testamentary succession only. nearest male relative at the time of his death or at
2. Art 1027, par. 6 anytime after his death?
▪ All kinds of succession.
3. Art 1028 SC: Only at the time of his death. Not an indefinite
▪ Testamentary succession only. time thereafter. In order to be capacitated to inherit,
4. Art 1032 the HDL must be living at the moment the
▪ All kinds of succession. succession opens. To construe them as referring to
the testator's nearest male relative at anytime after
his death would create uncertainty as to the
Who may inherit? disposition of the estate. The testator must have
▪ Both a natural person and a juridical person. known that such a broad provision would suspend for
an unlimited period of time the efficaciousness of his
What are the requisites for succeeding? bequest.
NATURAL PERSON
Art 1025: Since the testator was not survived by any nephew
In order to be capacitated to inherit, who became a priest, the devise in question was
ineffectual or inoperative.
€ the HDL must be living
▪ at the moment the succession opens
(when the decedent dies). JURIDICAL PERSON
Can a juridical person inherit?
When is a person living? ▪ Of course yes!
Art 1025: ART 1026:
A child already conceived at the time of the A testamentary disposition may be made to
death of the testator the:
▪ State, provinces, municipal
€ is capable of succeeding, corporations
▪ provided it be born later. ▪ Private corporations, organizations
or associations
€ for religious, scientific, cultural,
educational, or charitable purposes.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 69 -

What are the requisites for succeeding?

ART 1026:
All other corporations and entities may
succeed under a will
€ unless there is a provision to the contrary
in their charter, or the laws of their creation,
and always subject to the same.

In short, it must already exist as a juridical person

when the decedent dies.
4) Any attesting witness
▪ To the execution of a will,
ART 1027.
The spouse, parents, or children, or
The following are incapable of succeeding:
Anyone claiming under such witness,
1) The priest spouse, parent or children.
€ who heard the confession of the
testator during his last illness, or Recall that in Art 823, if there are 3 other
competent witness attesting, then the said witness,
The minister of the gospel, spouse, parent, children, etc., are not disqualified.
€ who extended spiritual aid to him
during the same period.
5) Any physician, surgeon, nurse, health
Requisites: officer or druggist,
1. the will must have been executed during ▪ Who took care of the testator during
the testator's last illness his last illness.
2. the spiritual ministration must have been
extended during the last illness. Requisites:
3. the will must have been executed during 1. The person must have taken care of the
or after the spiritual ministration. testator. (medical attendance with
regularity or continuity)
Note: this applies not only to Christian priests, but 2. During the latter's final illness.
also to all other religions.

2) The relatives of such priest of minister of 6) Individuals, associations, corporations

the gospel ▪ Not permitted by law.
▪ Within the 4th degree,
Note: Unlike #1-5 which applies only to
The church, order, chapter, community, testamentary succession, #6 applies to all kinds of
organization or institution succession.
▪ To which such priest or minister may
belong.
ART 1028.

The prohibitions mentioned in Art. 739,

3) A guardian € concerning donations inter vivos
▪ With respect to the testamentary
dispositions given by a ward in his shall apply to testamentary dispositions.
favor
▪ Before the final accounts of the ▪ The following people are disqualified under Art
guardianship have been approved 739, from receiving testamentary dispositions
▪ Even if he testator should die after only from the parties specified therein.
the approval thereof;
1. Those made between persons who are
Nevertheless, a provision made by the guilty of adultery, or concubinage at the
ward time of the donation.
▪ In favor of the guardian, (when the 2. Those made between persons found guilty
latter is his ascendant, descendant, (conviction) of the same criminal offense, in
brother, sister, or spouse), shall be consideration thereof.
valid. 3. Those made to a public officer or his wife
(spouse), descendants, and ascendants, by
reason of his office.
 - 70

ART 1029. ART 1032.

Should the testator dispose of the whole or The following are incapable of succeeding by
part of his property (What are the requsites:) reason of unworthiness: (What are the grounds
a) for prayers and pious works for the for unworthiness to succeed?)
benefit of his soul
b) in general terms and without specifying 1) Parents who:
its application a) have abandoned their children, or
b) induced their daughters to lead a
€ executor, with the court’s approval, shall corrupt or immoral life, or
deliver: (How to apportion the disposition:) c) attempted against their virtue.

1. ½ thereof or its proceeds to the church

or denomination to which the testator 2) Any person who has been convicted of an
may belong, to be used for such attempt against the life of the:
prayers and pious works, and ▪ testator,
2. the other ½ to the State, for the ▪ his or her spouse,
purpose mentioned in Art 1013. ▪ ascendants or descendants

ART 1030.
3) Any person who has accused the testator:
Testamentary provisions € of a crime for which the law prescribes
a) in favor of the poor in general,
imprisonment for 6 years or more,
b) without designation of the particular
€ if the accusation has been found
persons or of any community,
groundless.
shall be deemed limited to the:
▪ poor living in the domicile of the
4) Any heir of full age, who
testator at the time of his death,
€ having knowledge of the violent
▪ unless, it should clearly appear that his
death of the testator,
intention was otherwise.
€ should fail to report it to an officer
of the law (within one month)
A. The designation of the persons who are to be
€ unless the authorities have already
considered poor
taken action.
B. The distribution of the property,
This prohibition shall not apply to cases
Shall be made by: (How do you choose the poor?)
wherein, according to law, there is no
obligation to make an accusation.
1. the person appointed by the testator for
the purpose, in default of such person,
Note: this item cannot be operative since there is
(Primary Rule: Testator´s Wish)
no such obligation under present law.
2. the executor, or in his default,
3. the justice of the peace, the mayor and the
municipal treasurer € who shall decide by
a majority of votes all questions that may 5) Any person convicted of adultery or
arise. (This will never operate, since there will concubinage with the spouse of the
always be an executor/administrator of the testator.
estate.)

€ in all these cases, the approval of the CFI 6) Any person who by Fraud, Violence,
shall be necessary. Intimidation, or Undue Influence,

The preceding paragraph shall apply when the € should cause the testator to make a will or
testator has disposed of his property in favor of to change one already made.
the poor of a definite locality.

ART 1031. 7) Any person who by the same means

(a)prevents another from making a will,
A testamentary provision or
▪ in favor of a disqualified person, even (b) from revoking one already made, or
though (c) who supplants, or
1. made under the guise of an onerous (d)conceals, or
contract, or (e)alters the latter’s will.
2. made through an intermediary,
€ shall be void.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 71 -

8) Any person who falsifies ART 1034.

or forges a supposed will of the decedent.
In order to judge the capacity of the HDL,
*Note: all these items (#1-8) apply to all kinds of ▪ his qualification at the time of the death
succession. of the decedent,
▪ shall be the criterion.
What is the effect of unworthiness?
▪ Total disqualification. In cases falling under #2,3,5 of Art 1032
▪ Incapacitated to succeed by any form of (grounds for unworthiness),
succession! € it shall be necessary to wait until final
▪ Thus unworthiness and disinheritance have judgment is rendered, and
identical effects. Unworthiness is disinheritance
imposed by law. In case falling under #4,
€ the expiration of the month allowed for the
report.

ART 1033. If the institution, devise or legacy should be

REVOCATION OF UNWORTHINESS conditional,
€ the time of the compliance with the condition
The causes of unworthiness shall be without shall also be considered.
effect: (How may an heir be restored to capacity?)
(When will the unworthiness be set aside?)
When should you determine capacity to succeed?
1. if the testator had knowledge thereof 1) Generally, at the time the decedent dies.
at the time he made the will 2) If the institution is subject to a suspensive
(additionally, the will must also either condition:
institute the formerly unworthy heir, or ▪ at the time the decedent dies, AND
restore him to capacity) , or ▪ at the time the condition happens
2. if having known of them subsequently, 3) If final judgment is a requisite for unworthiness,
he should condone them in writing. at the time of final judgment.

How do you reconcile unworthiness and

disinheritance as regards Restoration to Capacity? ART 1035.
Under the rules on Under the rules on
Disinheritance Unworthiness If the person excluded from the inheritance by
-a subsequent -either: 1) written reason of the incapacity
reconciliation is enough pardon, or 2) ▪ should be the child or descendant of
subsequent will the decedent, AND
-reconciliation is not ▪ should have children or descendants,
enough € the latter shall acquire his right to the
Overlap of Rules: Remedy legitime.

a) If the offended party does not make a will The person so excluded shall not enjoy the
subsequent to the occurrence of the cause usufruct and the administration of the property
▪ Unworthiness sets in thus inherited by his children.
▪ Written condonation is necessary to restore.

b) if the offended party makes a will subsequent to Is there representation in unworthiness?

the occurrence of the cause ▪ Yes. Remember the 3 instances?
If he knew the cause If he did not know a) predecease
the cause b) disinheritance
-If he disinherits – Art -unworthiness stays. c) unworthiness,
922 NEVER in renunciation.
-If he institutes or
To what extent may there be representation?
pardons the offender
– restored to capacity ▪ As to the legitime
▪ As to intestate portion
-If will silent –
€ the person represented may have been entitled
unworthiness stays.
to.

Is there representation in the collateral line?

▪ Yes. If the unworthy heir is a brother or
sister, then his own children (meaning the
nephews and nieces of the decedent), will
represent.
 - 72

ART 1036. ART 1039.

a. Alienations of hereditary property, and Capacity to succeed is governed by the law of

b. Acts of administration the nation of the decedent.

€ Performed by the excluded heir, What law governs the capacity to succeed?
€ before the judicial order of exclusion, ▪ The law of the decedent,
▪ Not the law of the heir.
Are valid as to 3rd persons who acted in good
faith;
ART 1040.
But, the co-heirs shall have a right to recover
damages from the disqualified heir. The action for:
a) declaration of incapacity, and
b) for the recovery of the inheritance,
What happens to the alienations made by a now legacy or devise
excluded heir? shall be brought within 5 years
▪ The validity of the alienation is determined by ▪ from the time the disqualified person
the good or bad faith of the transferee (3rd took possession thereof.
party purchaser), not the transferor
(excluded-heir-seller). It may be brought by any one who may have an
▪ In case the alienation is valid, of course, the interest in the succession.
transferee has now the right. But, the rightful
heirs also have a right to go after the
excluded-heir-seller for damages.

ACCEPTANCE AND REPUDIATION OF

ART 1037. INHERITANCE

The unworthy heir who is excluded from the

succession has the right: ART 1041.
a. to demand indemnity for any expenses
incurred in the preservation of the The acceptance or repudiation of the
hereditary property, and inheritance is an act which is purely voluntary
b. to enforce such credits as he may have and free.
against the estate.
Freedom to Accept or Renounce
What right is an excluded heir granted? ▪ The heir has the freedom to accept or
▪ The right of reimbursement for necessary renounce
expenses. ▪ Whether it be in the form of legitime,
▪ Even if he was in bad faith. testamentary succession, or intestacy.
▪ This is because it is similar to a donation
which is essentially free and voluntary.
ART 1038. ▪ No one can be required to accept a benefit.

Any person incapable of succession, who

▪ disregarding the prohibition stated in the Is there retroactivity of acceptance or renunciation?
preceding articles, ▪ Yes. This is the Rule on Retroactivity.
▪ entered into the possession of the ▪ This is because of Art 777.
hereditary property
€ shall be obliged to return it together with its Of Acceptance Of Renunciation Of Conditional
accessions. Institutions
-the successor -the substitute, -Upon
€ He shall be liable for all the fruits and rents, will be deemed co-heir, or happening of
▪ he may have received or could have to have owned intestate heir the condition
received through the exercise of due and possessed who gets the the property
diligence. the property property (in passes to the
from the default of the heir but with
What are the obligations of a disqualified heir (who precise moment renouncer) is retroactive
took possession in bad faith)? the decedent deemed to effect.
a) obligation to return, with accessions. dies. have owned
b) Liability for fruits and rents. and possessed It is not
the property overridden
the moment even if the
the decedent institution is
dies. subject to a
SUCCESSION (BALANE) CHAMP © 2004
Notes - 73 -

suspensive 1a. An Heir In Without having accepted or

Meanwhile, the condition. General. repudiate the inheritance
renouncer is ART 1053: If
deemed never *Only that the the heir € his right shall be transmitted
to have owned property is should die to his heirs.
or possessed placed under *Obviously, this will apply only if
the property at administration the heir's heir accepts.
all. in the
meantime. ART 1054: Should there be
several heirs called to the
inheritance, some of them may
Time for Acceptance/ Renunciation accept and the others may
repudiate. (see book)
When should there be acceptance or renunciation?
ART 1043: No person may accept or repudiate 2. ART 1044: May be May be
an inheritance, unless he is certain of: Any accepted by: repudiated
1) the death of the person from whom he inheritance By their by:
is to inherit, AND left to minors parents, or Their parents
2) of his right to the inheritance. or guardians. or guardians,
incapacitated only by
What is the basis for this rule? persons, judicial
▪ Art 777 authorization.

ART 1057: Within 30 days 3.Testamentary May be accepted May be

▪ after the court has issued an order for Grants to the only by the repudiated by:
the distribution of the estate Poor persons in Art The poor
1030 , persons
€ the HDL shall signify to the court having selected as
jurisdiction Or recipients
whether they accept or repudiate the
▪
inheritance. The poor persons
selected as
€ If they do not do so within that time, they recipients.
are deemed to have accepted the inheritance.
▪ Here, silence = acceptance. 4. ART 1045: The lawful But in order
Corporations, representatives to repudiate
Associations, may accept any it, the
Irrevocability of Acceptance or Renunciation Institutions, inheritance left approval of
Entities to the latter, the court
ART 1056: The acceptance or repudiation of an (when shall be
inheritance, once made qualified to necessary.
€ is irrevocable, and acquire
€ cannot be impugned, property

Except: 5. The ART 1046: Public official

▪ when it was made through any of the Government. establishments can neither
causes that vitiate consent, or accept nor repudiate an
▪ when an unknown will appears. inheritance without the
approval of the government.
Who may accept or renounce?
PERSON PERSON WHO CAN ACCEPT OR 6. Married ART 1047: A married person of
INHERITING / RENOUNCE Person age, and not incapacitated for
BENEFITING any reason, may accept or
1. People in ART 1044: Any person having renounce an inheritance
General the free disposal of his property without his or her spouse’
may accept or repudiate an consent.
inheritance.
7. Literate ART 1048: Deaf-mutes who can
-capacity to act is required for Deaf-Mute read and write, may accept or
personal acceptance and repudiate the inheritance
renunciation. ▪ Personally, or
-an agent, when authorized, may ▪ Through an agent.
accept, in behalf of his principal.
 - 74

8. Illiterate ACCEPTANCE RENOUNCE 2. If the heir, Renounces the same, even

Deaf-Mute The These though gratuitously,
inheritance guardians may ▪ for the benefit of one or more of his co-
ART 1048: shall be repudiate the heirs.
Should they accepted by same, with
not be able to their judicial € gratuitous
read and guardians. approval. € in favor of one, some only, or
write,
2a.
€ gratuitous
How can ACCEPTANCE be made? € in favor of all provided it is NOT
1. Express ART 1049: An express acceptance INDISCRIMINATELY BUT in different proportions.
Acceptance may be made in a public or private
document.
3. If he Renounces it for a price
2. Tacit ART 1049: A tacit acceptance is ▪ in favor of all of his co-heirs
Acceptance one resulting from acts: ▪ indiscriminately
a. By which the intention to
accept is necessarily implied, € onerous
or € in favor of all indiscriminately.
b. By which one would have no
right to do except in the
capacity of the heir. But, if this renunciation should be gratuitous,
the co-heirs in whose favor it is made are those
What is tacit acceptance? upon whom the portion renounced should
▪ Acts revealing an intent to devolved by virtue of accretion
accept. € the inheritance shall NOT be deemed as
▪ Inferred from acts of ownership accepted.
performed by the heir over the
property.
What is the true case of renunciation?
What is not a tacit acceptance? ▪ Gratuitous renunciation in favor of the co-
Acts of mere preservation or heirs indiscriminately.
provisional administration ▪ Renunciation in favor of all the co-heirs who
€ do not imply an acceptance of would get the renounced portion by virtue of
the inheritance if through such accretion.
acts:
€ title or capacity of an heir has
not been assumed. Rule for Renouncement/ Renunciation

What are examples of tacit How should renunciation or renouncement be made?

acceptance? ART 1051: The repudiation of an inheritance
▪ ART 1050 shall be made
3. Implied ART 1057: a. in a public or authentic instrument, or
Acceptance If the heirs do not signify to the Court b. by petition presented to the court
whether they accept or renounce the having jurisdiction over the
inheritance within 30 days after the testamentary or intestate proceedings.
court has issued an order for the
distribution of the estate,
€ they are deemed to have accepted Rule on Renouncement Prejudicial to Creditors
the inheritance.
ART 1052.

ART 1050. If the heir repudiates the inheritance to the

-these are examples of tacit acceptance. prejudice of his own creditors,
€ the latter may petition the court to authorize
An inheritance is deemed accepted: them to accept it in the name of the heir.
1. If the heir Sells, Donates, or Assigns his right
to a The acceptance shall benefit the creditors only
▪ stranger, or to the extent sufficient to cover the amount of
▪ to his co-heirs, or their credits.
▪ to any of them.
The excess (should there be any), shall in no
€ onerous or gratuitous case pertain to the renouncer,
€ in favor of one, some or all of co-heirs € but shall be adjudicated to the persons to
whom it may belong.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 75 -

In case both a testamentary and compulsory heir?

▪ This is the instance of accion pauliana € he can accept either or both.
▪ The creditors have the right to impugn or set € legitime passes by strict operation of law,
aside contracts, transactions and dispositions irrespective of the decedent's wishes.
which will prejudice or defraud them.
▪ This will only apply if they the debtor has no
other properties with which to pay. ART 1058-1060.
▪ The right of the creditor to make the heir RULE ON EXECUTORS AND
accept the inheritance extends only to the ADMINISTRATORS. (see book). (see book)
amount or value needed to satisfy the credit.
▪ Any amount in excess of that is considered
validly renounced.
COLLATION

ART 1055. What is collation?

▪ It has several meanings.
If a person who is called to the same Collation as Just a simple accounting or
inheritance as an heir Computation arithmetical process,
▪ by will AND whereby the value of all
▪ ab intestato, the donation inter vivos
€ repudiates the inheritance in his capacity as made by the decedent is
a testamentary heir added to the available
assets in order to arrive at
he is understood to have repudiated it in both the value of the net
capacities. hereditary estate (this is
the 3rd step in Article 908.)
Should he repudiate it as an intestate heir,
€ without the knowledge of his being a Collation as Process whereby the
testamentary heir, Imputation donations inter vivos are
charged either to the
he may still accept it in the latter donee's legitime or against
(testamentary) capacity. the disposable portion.
(This is article 909-910.)

What happens if a person is both testamentary HDL, Collation as Takes place when the
and is also a intestate heir, with respect to the same Return donation inter vivos is
inheritance? found to be inofficious (or
RENOUNCES AS RENOUNCES AS INTESTATE exceeds the disposable
TESTAMENTARY HEIR portion), and so much of
HDL its value as is inofficious is
- he is deemed With Without returned to the estate to
to have Knowledge Knowledge satisfy the legtimes. (This
renounced the of being a of being a is also article 909-910.)
intestate heir testamentary testamentary
as well. heir heir
-disputed: - he is not
-but it seems deemed to ART 1061.
that he can have (as computation)
still accept renounced
as as Every compulsory heir, who succeeds with
testamentary testamentary other compulsory heirs,
heir. heir (may € must bring into the mass of the estate
still accept ▪ any property or right which he may
it) have received from the decedent
Rationale: The testamentary disposition is the ▪ during the lifetime of the decedent,
express will of the testator, whereas, intestacy is ▪ by way of donation or any other
only his implied will. One who renounces the gratuitous title
express will is deemed to have renounced also the
implied will, but not vice versa. € in order that it may be computed
▪ in the determination of the legitime of
Note: this applies only if both testamentary and each heir,
intestate heir. ▪ and in the account of the partition.
 - 76

What should be included in the computation for the ART 1064.

purpose of determining the value of the net estate? (as imputation)
▪ ALL donations inter vivos,
▪ Whether made to compulsory heirs or to When the grandchildren (who survive with
strangers (non-compulsory heirs). their uncles, aunts, cousins)
▪ This is because every donation is imputable to ▪ inherit from the grandparents in
either the legitime or the free portion. representation of their father or
▪ You compute only the value of the property mother,
donated at the time the donation was made.
€ they shall bring to collation all that their
parents, if alive, would have been obliged to
bring,
ART 1062. € even though such grandchildren have not
(as imputation) inherited the property.

Collation shall not take place among They shall also bring into collation,
compulsory heirs, ▪ all that they may have received from
1. if the testator should have so expressly the decedent during his lifetime,
provided, or ▪ Unless the testator provided otherwise
2. if the donee should repudiate the € in which case, his wishes must be
inheritance respected,
€ Unless the donation should be reduced € if the legitime of the co-heirs is not
as inofficious. prejudiced.

How are these donations imputed? X has 3 children A, B, C.

TO COMPULSORY HEIRS TO STRANGERS A has 2 children, A1 and A2.
GR: Imputable to the Always to the free
heir's legitime, because portion. If A predeceases X, A1 and A2 inherit by
a donation is considered representation. The question is:
an advance on legitime. What must the grandchildren (A1 & A2) impute to
EXCEPT: their inheritance?
1. If donor provides a) Whatever the parent whom they are
otherwise, representing would have been obliged to collate,
2. If the donee and
renounces (gives up ▪ (Whatever donation X made to A, their
status as parent)
compulsory heir) b) Whatever they themselves have received from
3. The donation the grandparent by gratuitous title.
exceeds the legitime ▪ (Whatever A1&A2 received from X)
(as to the excess) ▪ Even if X and A1&A2 are non-compulsory
heirs of each other!!
In which cases, the
donation is imputable to
the free portion. ART 1065.
(as imputation)

ART 1063. Parents are not obliged to bring to collation

(as imputation) ▪ In the inheritance of their ascendants,

Property left by will is not deemed subject to Any property which may have been donated by
collation the latter to their children.
▪ if the testator has not otherwise
provided
€ but the legitime shall in any case remain What happens if grandpa donated property to
unimpaired. grandson? Should the parent collate to grandpa's
estate?
▪ The parent should not collate what grandpa
How are testamentary dispositions to compulsory gave to his (parent's) son since he was not
heirs imputed? the recipient of the conveyance.
▪ GR: Imputed to the free portion. ▪ Since the donation was made to a stranger, it
▪ EX: If the testator provides otherwise. should be imputed to grandpa's free portion
of the estate.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 77 -

ART 1066.
(as imputation) Exception: Expenses for “professional, vocational
and other career” (ex. law school!). They are
Neither shall donations to the spouse of the chargeable to the free portion.
child be brought to collation. Unless, the parents provide otherwise.

But if they have been given by the parent to the

spouses jointly, What happens if the parents provide otherwise? That
€ the child shall be obliged to bring to collation my law school expenses will be charged to my
½ of the thing donated. legitime?
▪ Then the child (me) is entitled to deduct the
sum corresponding to what the parents would
What happens if parent donated property to have spent on him had he stayed at home
daughter-in-law? and loafed.
▪ The donation to the daughter-in-law is her
separate property, and should NOT be ART 1069.
imputed to the son's (husband) legitime. (as imputation)
▪ The donation is made to a stranger and
therefore imputable to the free portion of the Any sums paid by a parent:
parent's estate. ▪ in satisfaction of the debts of his
children,
▪ election expenses
What if the donation is made by parent to the ▪ fines,
spouses jointly (the son and the daughter-in-law)? ▪ similar expenses
▪ Then ½ of the donation belonged to the € shall be brought to collation.
son € imputable to the son's legitime.
▪ The other ½ is still a donation to a stranger Why?
€ imputable to the free portion. ▪ Because they are considered donations to the
child!
▪ So they are generally imputable to the
ART 1067. legitime, unless… (Art 1062).
(as computation)

Expenses for ART 1070.

▪ Support, (as imputation)
▪ Education,
▪ Medical attendance, even Extraordinary Wedding gifts by parents and ascendants
illness, consisting of:
▪ Apprenticeship, ▪ jewelry
▪ Ordinary equipment, or ▪ clothing, and
▪ Customary gifts, ▪ outfit
€ shall not be subject to collation.
€ shall not be reduced as inofficious, except
insofar as they may exceed 1/10 of the sum
ART 1068. which is disposable by will.
(as imputation)

Expenses incurred by the parents in giving What if the parents gave you wedding gifts? How
their children a Profession or Vocation or Other shall it be imputed?
Career ▪ The gifts will still be imputed to the free
€ shall not be brought to collation, portion, after all, the parents may give the
entire free portion as wedding gift!
Unless: ▪ The value imputed will be to the extent of
1. the parents so provide, or 1/10 of the free portion. Beyond that value,
2. they impair the legitime the excess will be imputed to the child's
legitime.
But when their collation is required, ▪ Ex. 1,000,000- free portion.
€ the sum which the child would have spent if 300,000 – wedding gift.
he had live in the house and company of his
parents shall be deducted therefrom. 1/10 of the free portion = 100,000 € impute
to the free portion.

General Rule: Expenses for “support” should not Balance: 200,000 € impute as legitime.
even be included in the computation of the estate.
(Imagine, you will account for every cup of rice you
ate and every medicine you took!)
 - 78

ART 1071. ART 1073.

(as computation and as imputation) (as imputation) What should the heirs receive?

The same things donated are not to be brought The donee’s share of the estate shall be
to collation and partition € reduced by the amount equal to that
€ BUT only their value at the time of the already received by him.
donation, € and his co-heirs shall receive an equivalent
€ even though their just value may not then (as much as possible), in property of the same
have been assessed. nature, class and quantity.

Their subsequent increase or deterioration, and

even their total loss or destruction (be it ▪ This applies when the donee is a compulsory
accidental or culpable) heir, not a stranger.
€ shall be for the benefit or account and risk of ▪ This article requires that equivalence in amount,
the donee. kind of property that compulsory heirs should
receive.
In general, since we only look at the values in ▪ Of course, the compulsory heirs may agree
collation, what value should be computed and among themselves.
imputed?
▪ Compute (in the estate) – the value of the
thing donated at the time the donation was ART 1074.
made. (What should the heirs receive in case equality
▪ Impute (against the free portion or the cannot be obtained?)
legitime) – the value of the thing donated at
the time the donation was made. Should the provisions of the preceding article
by impracticable,
Why?
▪ Because donation transfers ownership to the if the property If the property is
donee upon acceptance, any decrease or donated was movable,
increase in value in the thing donated should immovable,
be for the donee's account. 1. the co-heirs shall 1. the co-heirs shall
be entitled to only have the
receive its right to select an
IMPERIAL VS. CA equivalent in cash equivalent of
A claim for legitime does not amount to a or securities other personal
claim for title. In Vizconde vs. CA, what is brough to ▪ at the rate of property of the
collation is not the donated property itself, but the quotation inheritance at its
value of the property at the time it was donated. The just price.
rationale for this is that the donation is a real 2. Should there be
alienation which conveys ownership upon its neither cash or
acceptance, hence any decrease or increase in value securities in the
is for the account of the donee. estate
▪ so much of the
Therefore, the prescriptive period for an action for other property
reduction of an inofficious donation is 10 years, as may be
since it is an action upon an obligation created by necessary
law. From when is this 10 year period counted? The shall be sold
cause of action to enforce a legitime accrues upon at a public
the death of the decedent, since it is only then that auction.
the net estate may be ascertained and the legitimes
be determined.

ART 1075.
ART 1072. (as return)
(as computation and as imputation)
The fruits and interest of the property subject
In the collation of a donation made by both to collation
parents, € shall not pertain to the estate except from
▪ ½ shall be brought to the inheritance of the day on which the succession is opened.
the father,
▪ the other ½ to that of the mother. For purpose of ascertaining their amount,
The fruits and interest of the property of the
That given by ONE alone shall be brought to estate of the same kind and quantity as that
collation in his or her inheritance. subject to collation
€ shall be made as the standard of
assessment.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 79 -

What if the donation turns out to be inofficious? ART 1077.

▪ Of course the donee should return the
donated property to the estate. Should any question arise among the co-heirs
▪ The fruits and interests accruing from the ▪ upon the obligation to bring to
time of the decedent's death should also be collation, or
returned. This is because it is from that time ▪ as to the things which are subject to
that the rightful heirs should have acquired it. collation,
€ the distribution of the estate shall NOT be
If donation totally If donation partially interrupted, provided adequate security is
inofficious inofficious given.
-return entire fruits -return only a pro-rated
amount of fruits and
interests

PARTITION AND DISTRIBUTION OF ESTATE

ART 1076.
(as return) When do you partition?
▪ Only if there's a net estate remaining. You
The co-heirs are bound to reimburse to the partition only if there's really an estate (when
donee the assets still more than the debts)
▪ the necessary expenses which he has ▪ And Of course only if there is more than 1
incurred for the preservation of the heir!
property donated to him
▪ though they may not have augmented What is partitioned?
its value. ▪ The mass of properties.
▪ The net estate, after all the debts are paid,
The donee who collates in kind an immovable and the donations are collated.
which has been given to him ▪ The immediate effect of the decedent' death
▪ must be reimbursed by co-heirs for the is a co-ownership of the heirs over the entire
improvements mass of properties.
▪ which may have increased the value of ▪ This co-ownership lasts until there has been
the property, and partition.
▪ which exist at the time of the partition.

As to the works made on the estate for mere How may partition be done?
pleasure of the donee, *either may be availed with or without a will.
▪ no reimbursement is due him for them 1) extra-judicial agreement among heirs,
▪ he has however, the right to remove ▪ but this happens only if there are no
them if he can do so without injuring more debts to be paid, and
the estate. ▪ the heirs agree on a partition
2) judicial proceedings.
So now, the donation turns out to be inofficious, and
the donee should return the property donated.
However, is he entitled to reimbursement on ART 1078.
expenses he made to the property?
Where there are two or more heirs,
TOTAL PARTIAL € the whole estate of the decedent is (before
RETURN RETURN its partition)
NECESSARY Yes. Reimburse Yes.
EXPENSES to the full Proportional to ▪ owned in common by such heirs,
extent. the value to be ▪ subject to the payment of debts of the
returned. deceased.
USEFUL Yes. Reimburse Yes.
EXPENSES to the full Proportional to
extent (if the the value to be ART 1079.
thing is still returned.
there.) Partition in general
ORNAMENTAL No. That's for No. But, if the ▪ is the separation, division and
EXPENSES the donee's ornament is assignment
account. (But located in the ▪ of a thing held in common
donee can portion which ▪ among those to whom it may belong.
remove it, will not be
provided no returned The thing itself may be divided, or its value.
injury to the (donee's
property) portion), then
it's the donee's.
 - 80

*Note: even if partition is made years later, testator. This designation constitutes the disposition
remember that succession rights vest at the time of of the properties, and hence must necessarily appear
the decedent's death, and the heirs are deemed to in the testament since it is an expression of the
have acquired the property at that time. testator's last will.

Kinds of Partition: There is therefore a necessity of a prior will, before

Actual Physical division of the thing making the partition. A condition for the testator in
partition his estate by an act inter vivos, is that he
Constructive Any other act which terminates the have made a valid will disposing of said estate
co-ownership. among his heirs. If this will is nullified, then the
partition itself is also nullified.
Art 1082 – sale, exchange,
compromise
Art 1086 – sale then divide Note:
proceeds ▪ the Legasto case was based on the Spanish
Code. Now Art 1080 does not say “testator”
but “person”
ART 1080. ▪ It not longer applies under present rules.

Should a person make a partition of his estate

by Can the predecessor make a partition without a will?
▪ an act inter vivos, or ▪ Now, the answer is yes.
▪ by will, ▪ A partition inter vivos can be validly made
€ such partition shall be respected even without a prior will provided, it is not
€ in so far as it does not prejudice the legitime used to make mortis causa dispositions.
of the compulsory heirs. ▪ You can just put it in a simple document.
▪ In other words, by following strictly the
A parent who, intestate portions and legitimes provided for
▪ in the interest of his or her family, by law. The partition should conform exactly
▪ desires to keep any agricultural, to the portions under the rules on intestacy
industrial or manufacturing enterprise and legitimes.
intact, ▪ Hence, the dispositions should be by virtue of
€ may avail himself of the right granted him in intestate and compulsory succession.
this article, by

▪ ordering that the legitime of the other ART 1081.

children to whom the property is not
assigned, A person may,
▪ be paid in cash. ▪ by an act inter vivos or mortis causa
€ entrust the mere power to make the
partition after his death
Can the decedent himself effect the partition? How? ▪ to any person who is not one of the co-
▪ Yes. heirs.
1) by making a will (but this is not a
testamentary disposition) , or The provisions of this and of the preceding
2) by act inter vivos (such as sale) article shall be observed
▪ but this should be in writing and in ▪ even should there be among the co-
a public instrument [FAJARDO VS. heirs
FAJARDO] ▪ a MINOR or a PERSON SUBJECT TO
▪ it must observe the formalities of a GUARDIANSHIP;
will. [LEGASTO VS. VERSOZA]
▪ but an oral partition is also valid But the mandatary, in such case,
[CHAVEZ VS. IAC] ▪ shall make an inventory of the property
of the estate,
▪ But this partition: ▪ after notifying the co-heirs, the
a) takes effect only upon his death, and creditors, and the legatees and
b) is revocable as long as he is alive. devisees.
c) the legitimes of the compulsory heirs
should not be impaired. *A mandatary – the person entrusted to make a
partition – cannot be a co-heir to ensure fairness and
impartiality.
LEGASTO VS. VERSOZA
A testator may, by act inter vivos, partition his
property, but he must first make a will with all the
formalities provided for by law. The idea is to divide
the estate among the heirs designated by the
SUCCESSION (BALANE) CHAMP © 2004
Notes - 81 -

ART 1082: ART 1084.

Every act which is intended to put an end to Voluntary heirs upon whom some condition has
indivision among co-heirs and legatees or been imposed cannot demand a partition
devisees ▪ unless the condition has been fulfilled;
▪ is deemed to be partition.
But the other co-heirs may demand it
Even though it should purport to be ▪ by giving sufficient security
▪ a sale, ▪ for the rights which the former may
▪ an exchange, have in case the condition should be
▪ a compromise, or complied with,
any other transaction.
AND, until it is known that the condition
▪ has not been fulfilled, OR
TUASON VS. TUASON ▪ can never be complied with,
The agreement was that the co-owners would € the partition shall be understood to be
improve the property and construct roads and then provisional.
subdivide it into small lots for sale. In return, they
would receive the gross selling price and the rents
that may be collected from the property. Can the testamentary heirs demand partition where
a suspensive condition is imposed?
The contract itself has for its purpose and object, the ▪ Of course not.
dissolution of the co-ownership by selling the lots ▪ They have to wait for the condition to happen
owned in common and dividing the proceeds of the before they can partition.
sale among the co-heirs.
But can the other heirs demand partition?
The obligation in the contract to preserve the co- ▪ Yes.
ownership until all the lots shall have been sold, is ▪ The heirs not so instituted, may demand
merely an incident to the main object of dissolving partition, subject to the obligation to protect
the co-ownership. the inchoate right of the conditional heir
(above)
▪ So they must provide security.
ART 1083.

Every co-heir has a right to demand division of ART 1085.

the estate,
▪ unless the testator should have In partition of the estate,
expressly forbidden its partition. € equality shall be observed as far as
€ in which case, the period of possible,
indivision shall not exceed 20 years, as ▪ dividing the property into lots, or
provided in Art 494. ▪ assigning to each of the co-heirs
things of the same Nature, Kind
This power of the testator to prohibit and Quality.
division applies to the legitime.
How do co-heirs share the partitioned estate?
Even though forbidden by the testator, the co- ▪ Quantitatively – depending on the legitimes,
ownership terminates, intestate succession, and the will.
a) when any of the causes for which ▪ Qualitatively –
partnership is dissolved takes place, OR GR: equally.
b) when the court finds for compelling EX: 1) when the decedent himself made the
reasons that division should be partition.
ordered, upon petition of one of the co- 2) if the co-heirs agree otherwise
heirs. 3) if equality is impossible.

GR: Partition is a matter of right. ART 1086.

EX: When indivision is imposed by: (no partition) When is this form of constructive partition resorted
a) the testator himself – 20 years max. to?
b) the co-heirs agree – 10 years max.
Should the thing be:
EX to the EX: (insist partition even if indivision) 1) indivisible, or
a) when any of the causes for dissolution 2) would be much impaired by its being
of partnership occurs. divided,
b) When the court finds compelling reason
 - 82

€ it may be adjudicated to one of the heirs, ▪ In [ALONZO VS. CA] [DISTRITO VS. CA], the
€ provided, he shall pay the others the excess rule was relaxed, and actual notice to or
in cash. knowledge by the co-heir of the sale is
sufficient.
Nevertheless,
▪ if any of the heirs should demand that ART 1089.
the thing be sold at a public auction,
and The titles of acquisition or ownership of each
▪ that strangers are allowed to bid. property
€ this must be done. ▪ shall be delivered to the co-heir to
whom said property has been
adjudicated.
To whom may the thing be sold?
a) to a stranger, third person
b) to any one of the co-heirs if none of them ART 1090.
object
When the title comprises 2 or more pieces of
land,
ART 1087. ▪ which have been assigned to 2 or more
co-heirs, or
In the partition, the co-heirs shall reimburse When it covers 1 piece of land
one another ▪ which has been divided between 2 or
1. for the income and fruits which each more co-heirs,
one of them may have received from
any property of the estate, € the title shall be delivered to the one having
2. for any useful and necessary expenses the largest interest,
made upon such property, and
3. for any damage thereto through malice € AND, authentic copies of the title shall be
or neglect. furnished to the other co-heirs, at the expense
of the estate.

ART 1088. If the interest of each-co-heir should be the

same,
Should any of the heirs sell his hereditary € the oldest shall have the title.
rights to a stranger before the partition,
€ any or all of the co-heirs may be subrogated
to the rights of the purchaser ART 1091.
▪ by reimbursing him for the price of the
sale, A partition legally made,
▪ provided they do so within the period ▪ confers upon each heir
of 1 month from the time they were ▪ the exclusive ownership of the property
notified in writing of the sale by the adjudicated to him.
vendor.

Can the heir sell his share even before partition? ART 1092.
▪ Yes. He can dispose his aliquot share Obligation of Mutual Warranty
gratuitously or onerously.
▪ Since successional rights vest at the moment of After the partition has been made,
the decedent's death. ▪ the co-heirs shall be reciprocally bound
to warrant
Can the other co-heirs redeem the portion sold? a) the title to, and
▪ Yes. But they can do so only before partition, b) the quality of,
and within 1 month from notice by the each of the property adjudicated.
vendor.
▪ These co-heirs should be notified in writing by
the selling heir. Otherwise, the period does ART 1093.
not commence to run.
The reciprocal obligation of warranty
So the right to redeem may be exercised only within ▪ referred to in the preceding article
1 month from notification. Is written notification ▪ shall be proportionate to the respective
required? hereditary shares of the co-heirs;
▪ In [GARCIA VS. CALALIMAN], written notice is
required, even if there's already a registration But if any one of them should be insolvent,
of the deed of sale with the Register of ▪ The other co-heirs shall be liable for his
Deeds. (actual notice). Written notice is part in the same proportion,
indispensable.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 83 -

▪ Deducting the part corresponding to ART 1097.

the one who should be indemnified. Can you rescind a partition?

Those who pay for the insolvent heir shall have A partition may be rescinded or annulled for
the right of action against him for the same causes as contracts.
reimbursement,
€ should his financial condition improve.
ART 1098.

ART 1094. A partition, judicial or extrajudicial,

May also be rescinded on account of lesion:
An action to enforce the warranty among the € when any one of the co-heirs received
co-heirs things whose value is less by at least ¼
▪ Must be brought within 10 years € than the share to which he is entitled,
▪ From the date the right of action € considering the value of the things at the
accrues. time they were adjudicated.

When is there lesion as a ground to rescind partition?

ART 1095. ▪ Ex. legitime should be 1,000,000
Credit Assigned to Co-heir in Partition. But upon partition I only got 750,000.
Lesion = 250,000 € rescissible!
If a credit should be assigned as collectible, ▪ But, if injury is less than 25% € ask for
€ the co-heirs shall not be liable for the completion!
subsequent insolvency of the debtor of the
estate,
€ but only for his insolvency at the time the ART 1099.
partition is made.
The partition made by the testator cannot be
The warranty of the solvency of the debtor impugned on the ground of lesion,
▪ Can only be enforced during the 5 years EXCEPT:
following the partition. a) when the legitime of the compulsory heirs
is thereby prejudiced, or
Co-heirs do not warrant bad debts, b) when it appears or may reasonably be
▪ If so known to and accepted by the presumed, that the intention of the testator
distributee. was otherwise.

▪ But if such debts are not assigned to a GR: partition by testator € cannot be rescinded,
co-heir, and EX: partition even if by testator rescissible if
▪ should be collected in whole or in part a) impair legitimes
€ the amount collected shall be distributed b) mistake by testator, vitiation
proportionately among the heirs.

ART 1100.
ART 1096.
Instances when there is no mutual warranty. The action for rescission on account of lesion
▪ shall prescribe after 4 years from
The obligation of warranty among co-heirs the time the partition was made.
shall cease in the following cases:
ART 1101.
1) When the testator himself has made the
partition The heir who is sued shall have the option of:
▪ Or unless it appears or it may be 1. indemnifying the plaintiff for the less, or
reasonably presumed, 2. consenting to a new partition.
▪ That his intention was otherwise,
▪ But the legitime shall always remain Indemnity may be made:
unimpaired. 1. by payment in cash, or
2) When it has been so expressly stipulated in 2. by the delivery of a thing of the same
the agreement of partition kind, and quality as that awarded to the
▪ Unless there has been bad faith. plaintiff.
3) When the eviction is due to a cause
subsequent to the partition, If a new partition is made
4) has been caused by the fault of the ▪ it shall affect neither those who have not
distributee of the property. been prejudiced, nor
▪ those who have not received more than
their just share.
 - 84

Ex. I have 3 co-heirs. My legitime is 100. I only got What if a person is mistakenly included in the
75. I can demand rescission. I will sue the other 2 partition?
co-heirs. What can they do? ▪ The property will be taken away from him and
▪ The co-heirs sued have the option of: redistributed among the proper recipients.
a) having a re-partition (give me more
property), or
b) indemnify the suing heir the amount of
lesion suffered (pay me deficiency if all of LEGACIES AND DEVISES
them agree)

Art. 924.
ART 1102.
All things and rights which are within the
An heir who has alienated the whole or a commerce of man be bequeathed or devised.
considerable part of the real property
adjudicated to him ▪ Recall the definitions of legacy and devise.
▪ cannot maintain an action for
rescission HEIR LEGATEE OR DEVISEE
▪ on the ground of lesion, -succeed by universal -succeeds by particular
▪ But he shall have a right to be title title
indemnified in cash. -receives an aliquot or -receives specific
fractional part property

ART 1103.
What may be devised or bequeathed?
The omission of one or more objects or ▪ Anything within the commerce of man,
securities of the inheritance ▪ It is not required that the thing belong to the
▪ Shall not cause the rescission of the testator.
partition ▪ Provided that it does not impair the legitimes.
▪ On the ground of lesion,
▪ But the partition shall be completed by the
distribution of the objects or securities Art. 925.
which have been omitted.
A testator may charge with legacies and
devises
ART 1104. ▪ not only his compulsory heirs but
▪ also the legatees and devisees.
A partition made with preterition of any of the
compulsory heirs The latter shall be liable for the charge
▪ Shall not be rescinded, € only to the extent of the value of the legacy
▪ Unless it be proved that there was bad or the devise received by them.
faith, or fraud on the part of the other
persons interested, The compulsory heirs shall not be liable for the
▪ BUT, the latter shall be proportionately charge beyond the amount of the free portion
obliged to pay the person omitted the share given them.
which belongs to him.

Who is charged the legacy?

What if an heir is mistakenly excluded in the GR: It is the estate. When you make a DL, it is the
partition (not preterition)? What can he do? burden of the estate of the testator. It is the primary
▪ If omission was in good faith € indemnity, he obligation of the estate through the executor or
simply gets his rightful share. administrator.
▪ If omission was in bad faith € have the partition
annulled. EX: A testator may impose the burden of DL on
another person. If such other person accepts the
disposition (burden) in his favor, then it will be a
ART 1105. subsidiary legacy or devise. It is essentially a
disposition with a mode. In that case, the burden is
A partition which includes a person believed to on the estate of the testamentary heir.
be an heir
▪ But who is not, Art. 926.
▪ Shall be void only with respect to such
person. When the testator charges one of the heirs with
a legacy or devise,
€ he alone shall be bound.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 85 -

Should he not charge anyone in particular, Art. 931. If the testator orders that a thing
€ all shall be liable in the same belonging to another be acquired
proportion in which they may inherit. ▪ in order that it be given to a legatee or
devisee,
▪ the heir upon whom the obligation is
Art. 927. imposed or the estate
What happens if other heirs take the DL? € must acquire it and
€ give the same to the legatee or devisee;
If two or more heirs take possession of the
estate, but if the owner of the thing refuses to
▪ they shall be solidarily liable for the loss or alienate the same, or demands an excessive
destruction of a thing devised or price therefor,
bequeathed, € the heir or the estate shall only be obliged
▪ even though only one of them should have to give the just value of the thing.
been negligent.
If testator knew he did not own it AND
If testator ordered its acquisition
Art. 928. 1) the estate should try to acquire it.
Who is liable in case of eviction? 2) If not, estate should give the DL the monetary
equivalent.
The heir who is bound to deliver the legacy or
devise If testator thought he owned it, but in reality he
€shall be liable in case of eviction, if the does not own it
thing is indeterminate and is indicated only DL is void. It was vitiated by mistake.
by its kind. If testator thought he owned it, but in reality he
does not own it, BUT after making the
disposition, he acquires it onerously or
Art 929 − 937. Kinds of DL gratuitously
DL is validated.
Legacy/Devise of a Thing Owned In Part by the If testator knew that he did not own it, BUT did
Testator NOT order its acquisition
Art. 929. If the testator, heir, or legatee owns 1) the estate should try to acquire it.
only a part of, or an interest in the thing 2) If not, estate should give the DL the monetary
bequeathed, equivalent.
€ the legacy or devise shall be understood
limited to such part or interest,

Unless the testator expressly declares that he Legacy/Devise of a Thing Already Owned by the DL
gives the thing in its entirety. or Subsequently Acquired by the DL
Art. 932. The legacy or devise of a thing which
at the time of the execution of the will already
GR: It conveys only the interest or part owned by belonged to the legatee or devisee
the testator. € shall be ineffective,
€ even though another person may have some
EX: If the testator provides otherwise:
interest therein.
Convey More Than He Convey Less Than He
Owns Owns
1) the estate should try 1) He may do so. Art Art. 933. If the thing bequeathed belonged to
to acquire it. 794. the legatee or devisee at the time of the
execution of the will,
2) If not, estate should € the legacy or devise shall be without effect,
give the DL the € even though it may have subsequently
monetary equivalent. alienated by him.

If the legatee or devisee acquires it

Legacy/Devise of a Thing Owned by Another gratuitously after such time, he can claim
Art. 930. The legacy or devise of a thing nothing by virtue of the legacy or devise; but if
belonging to another person it has been acquired by onerous title he can
▪ is void, if the testator erroneously believed demand reimbursement from the heir or the
that the thing pertained to him. estate.
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.
 - 86

If thing already owned by the DL at execution of

will
DL void. You can't give something to someone
who already owns it.

Even if the DL later sells it such that at the time of

testator's death, DL is no longer the owner, still
void.

If thing owned by another at execution of will,

BUT subsequently acquired by the DL
If testator thought it If testator knew he
belonged to him did not own it
DL void. Acquired onerously –
DL entitled to
reimbursement

Acquired gratuitously
– no effect.

If thing owned by testator at execution of will AND

was sold to the DL himself
DL deemed revoked.

Legacy/Devise To Remove an Encumbrance Over a

Thing Belonging to the DL
Art 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.

Valid. The estate should remove the encumbrance

for a consideration.

Legacy/Devise of A Thing Pledged or Mortgaged

Art. 934. If the testator should bequeath or
devise something pledged or mortgaged to
secure a recoverable debt before the execution
of the will,
€ the estate is obliged to pay the debt,
€ unless the contrary intention appears.

The same rule applies when the thing is

pledged or mortgaged after the execution of
Legacy/Devise to a Creditor
the will.
Any other charge, perpetual or temporary, with Art. 938. A legacy or devise made to a creditor
€ shall not be applied to his credit,
which the thing bequeathed is burdened,
€ unless the testator so expressly declares
passes with it to the legatee or devisee.

Valid. In the latter case, the creditor shall have the

GR: The encumbrance must be removed, the estate right to collect the excess, if any, of the credit
paying the debt or of the legacy or devise.
Unless: the testator intended otherwise.
GR: The DL to the creditor will not be counted as
payment of the debt.
EX: If the testator provides otherwise.
Legacy of a Credit or Remission
Art. 935.
a) The legacy of a credit against a third
person or
b) of the remission or release of a debt of the
legatee
SUCCESSION (BALANE) CHAMP © 2004
Notes - 87 -

Testamentary Instruction to Pay A Debt Art. 941. A legacy of generic personal property
Art. 939. If the testator orders the payment of shall be valid even if there be no things of the
what he believes he owes but does not in fact same kind in the estate.
owe,
€ the disposition shall be considered as not A devise of indeterminate real property shall be
written. valid only if there be immovable property of its
kind in the estate.
If as regards a specified debt more than the
amount thereof is ordered paid, the excess is The right of choice shall belong to the executor
not due, unless a contrary intention appears. or administrator who shall comply with the
The foregoing provisions are without prejudice legacy by the delivery of a thing which is
to the fulfillment of natural obligations. neither of inferior nor of superior quality.

Obviously, this is not a legacy or devise. Art. 942. Whenever the testator expressly
It is a mere directive to discharge a civil obligation. 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.

Alternative Legacies Art. 943. If the heir, legatee or devisee cannot

-It is one which provides among several tings make the choice, in case it has been granted
mentioned, only one is to be given. (similar to him, his right shall pass to his heirs; but a
alternative obligations) choice once made shall be irrevocable.

Art. 940. In alternative legacies or devises,

▪ the choice is presumed to be left to the GENERIC LEGACY GENERIC DEVISE
heir upon whom the obligation to give the Valid. Even if such Valid. Only if the real
legacy or devise may be imposed, movable does not exist property really exists at
▪ or the executor or administrator of the at the time of testator's the time of testator's
estate if no particular heir is so obliged. death. death.
▪ € This means the state
If the heir, legatee or devisee, who may have will have to acquire the
been given the choice, dies before making it, movable.
this right shall pass to the respective heirs
.
Once made, the choice is irrevocable. Who makes the choice?
General Rule Exception
In the alternative legacies or devises, except as -The estate, through If the testator provides
herein provided, the provisions of this Code the E/A. otherwise such that the
regulating obligations of the same kind shall be choice will be made by
observed, save such modifications as may the testamentary heir.
appear from the intention expressed by the -right to choose -right to choose
testator. transmissible to the transmissible to his
successor E/A own heirs
Who makes the choice?
 GR: The debtor of course
In a direct DL In a subsidiary DL If the testator provides otherwise, that the choice
-the estate (E/A) -the testamentary heir will be made by the testamentary heir.
chooses chooses
-right to choose -right to choose Limitation on the choice?
transmissible to the transmissible to his ▪ Something which is neither superior or inferior in
successor E/A own heirs quality.
Ex. I give a watch € Don't give a P200 watch,
 EX: If the testator provides otherwise, that but don't give also a Patek Philippe, or a
the DL himself can choose, or that a 3rd party Vacheron Constantin. (Give an Omega).
can choose
The choice is irrevocable.
The choice is irrevocable.

Legacy for Education

Art. 944. A legacy for education lasts until
Generic Legacies a) the legatee is of age, or
Ex. I give to X a car. I give to A 50 sacks of rice. b) beyond the age of majority in order that
(In generic legacies, there is only a specification of the legatee may finish some professional,
the kind or quality.) vocational or general course, provided he
pursues his course diligently.
 - 88

Art. 946.
If the testator has not fixed the amount of such
legacies, If the thing bequeathed should be subject to a
€ it shall be fixed in accordance with the social usufruct,
standing and the circumstances of the legatee € the legatee or devisee shall respect such
and the value of the estate. right until it is legally extinguished.

Until When Do you have to Give Legacy?

1) 18 years old, or Art. 947.
2) completion of the course
*whichever comes later, The legatee or devisee acquires a right to the
pure and simple legacies or devises
How much Legacy do you have to give? ▪ from the death of the testator, and
1) that amount fixed by testator, or ▪ transmits it to his heirs.
2) that which is proper, according to -social
standing of the legatee, and -value of free
portion. Art. 948.

If the legacy or device is of a specific and

determinate thing pertaining to the testator,
Legacy for Support € the legatee or devisee acquires the
A legacy for support lasts ownership thereof upon the death of the
a) during the lifetime of the legatee, testator,
b) if the testator has not otherwise € as well as any growing fruits, or unborn
provided. offspring of animals, or uncollected income;
€ but not the income which was due and
If the testator or during his lifetime used to unpaid before the latter's death.
give the legatee a certain sum of money or
other things by way of support, From the moment of the testator's death, the
€ the same amount shall be deemed thing bequeathed shall be at the risk of the
bequeathed, legatee or devisee,
€ unless it be markedly disproportionate to the ▪ who shall, therefore, bear its loss or
value of the estate. deterioration, and
▪ shall be benefited by its increase or
Until When Do you have to Give Legacy? improvement,
1) the whole lifetime of the legatee, or ▪ without prejudice to the responsibility of
2) that provided by testator. the executor or administrator.

How Much Legacy to give? Art. 949.

1)that amount fixed by the testator, or
2)that usual amount given to the legatee, or If the bequest should
3)that which is proper, according to -social ▪ not be of a specific and determinate
standing of the legatee, and -value of free thing,
portion ▪ 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
Legacy of a Periodical Pension € if the testator has expressly so ordered.
Art. 945. If a periodical pension, or a certain PURE AND PURE AND SUSPENSIVE SUSPENSIVE
GENERIC SPECIFIC CONDITION TERM
annual, monthly, or weekly amount is
Demand: Demand: Demand: Demand:
bequeathed,
-upon -upon -upon -upon
▪ the legatee may petition the court
testator' testator' happening arrival of
▪ for the first installment upon the death of death death of condition term
the testator, and
▪ for the following ones which shall be due at Ownership Ownership Ownership Ownership
the beginning of each period; -if from -upon -upon -upon
testator – testator's testator's arrival of
€ such payment shall not be returned, even upon death death, if term,
though the legatee should die before the testator's condition is retroactive
expiration of the period which has death, fulfilled to the
commenced. testator's
if acquired death
When is the Legacy given? from 3rd
▪ Demandable at the time of the testator's death. person-
upon
acquisition
SUCCESSION (BALANE) CHAMP © 2004
Notes - 89 -

Fruits: Fruits: Fruits: Fruits: Art. 952.

-upon -upon -upon -upon
selection, testator's testator's arrival of 1) The heir, charged with a legacy or devise,
unless death death, term or
testator unless 2) the executor or administrator of the estate,
provides testator
otherwise provides
€ must deliver the very thing bequeathed if he
otherwise
is able to do so and
*note demandability here refers to legal
€ cannot discharge this obligation by paying its
demandability, not physical demandability, which can
value.
only be made after settlement of estate.
Legacies of money
▪ must be paid in cash,
Art. 950. ▪ even though the heir or the estate may
Rule of Preference in DL!!! not have any.
If the estate should not be sufficient to cover The expenses necessary for the delivery of the
all the legacies or devises, thing bequeathed shall be for the account of
▪ their payment shall be made in the the heir or the estate, but without prejudice to
following order: the legitime.
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the testator Art. 953.
to be preferential;
(3) Legacies for support; The legatee or devisee cannot take possession
(4) Legacies for education;
of the thing bequeathed upon his own
(5) Legacies or devises of a specific, authority,
determinate thing which forms a part of the € but shall request its delivery and possession
estate; a) of the heir charged with the legacy or
(6) All others pro rata. devise, or
b) of the executor or administrator of the
estate should he be authorized by the
Compare Art 950 with Art 911 court to deliver it.
ART 911 ART 950
Simple Reduction: Complicated Preference *this is to be done only after debts have been paid,
1) reduce non- -follow order above (Art legitimes have been delivered, and DL have been
preferred DL first, 950). computed to check whether they impair the
pro-rata (the first is the last to be legitimes.
2) then reduce reduced, the last is the
preferred DL first to be reduced)
Art. 954.
When Applicable: When Applicable:
Apply when the legitimes Apply when the What is the rule for Acceptance & Renunciation of
have been impaired, the reduction is due to other DL?
DL exceeded the free reasons (other than
portion impaired legitimes) The legatee or devisee cannot
-no compulsory heirs, ▪ accept a part of the legacy or devise and
-legitimes already ▪ repudiate the other, if the latter be
satisfied through onerous.
donations
-arithmetic errors, when GR: Acceptance must be total or partial.
DL exceed the estate! EX: If the DL is partly onerous and partly gratuitous,
the recipient cannot accept the gratuitous and
renounce the onerous.

Art. 951.
Acceptance or Renunciation by Heirs of DL
The thing bequeathed shall be delivered
▪ with all its accessories and accessories Should he die before having accepted the
and legacy or devise,
▪ in the condition in which it may be upon ▪ leaving several heirs,
the death of the testator.
€ some of the latter may accept and the others
*with or without the instruction of the testator. may repudiate the share respectively belonging
to them in the legacy or devise.
 - 90

Art. 955. What happens if the DL renounces or is incapacitated

to succeed to the DL?
The legatee or devisee of, 1. First, follow the substitution, if any.
▪ two legacies or devises 2. Then, follow accretion,
▪ one of which is onerous 3. Lastly, follow intestacy.

€ cannot renounce the onerous one and accept Art. 957.

the other. When is a DL Revoked By Operation of Law?

If both are onerous or gratuitous, The legacy or devise shall be without effect:
▪ he shall be free to accept or renounce
both, or (1) If the testator transforms the thing
▪ to renounce either. bequeathed in such a manner that it does not
retain either the form or the denomination it
But if the testator intended that the two had;
legacies or devises should be inseparable from
each other, *transformation
▪ the legatee or devisee must either accept
or renounce both. (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
What is the Rule for 2 DL to 1 Person? case the legacy or devise shall be without
1) The testator's instruction, if any, should prevail effect only with respect to the part thus
first. alienated. If after the alienation the thing
2) Gratuitous + Gratuitous = Recipient may: should again belong to the testator, even if it
▪ accept either, renounce the other, be by reason of nullity of the contract, the
▪ accept both legacy or devise shall not thereafter be valid,
▪ renounce both unless the reacquisition shall have been
3) Onerous + Onerous = Recipient may: effected by virtue of the exercise of the right of
▪ accept either, renounce the other, repurchase;
▪ accept both
▪ renounce both *alienation – either onerously or gratuitously
4) Gratuitous + Onerous = Recipient: Ex. Testator sells the thing to the DL himself.
▪ Cannot accept gratuitous and renounce
onerous, What if the testator gets the thing back from the DL
▪ Any OTHER combination is allowed. via succession?
▪ GR: Still the DL is revoked, even if the thing
reverts to the testator.
What is the Rule for DL to a Compulsory Heir also? ▪ EX: (DL valid, not revoked)
▪ The testator's instruction, if any, should prevail 1) when the reversion is caused by the
first. annulment of the sale because of vitiated
▪ If not: Art 955: consent (in effect, there really was no
Any compulsory heir who is at the same time intention to sell it to the DL)
a legatee or devisee may : 2) when the reversion is cause by redemption in
1) waive the inheritance and accept the a sale pacto de retro.
legacy or devise, or
2) renounce the latter and accept the
former, or (3) If the thing bequeathed is totally lost
3) waive or accept both. 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
Art. 956. shall be liable for eviction if the thing
bequeathed should not have been determinate
1. If the legatee or devisee cannot or is as to its kind, in accordance with the provisions
unwilling to accept the legacy or devise, or of Article 928.
2. if the legacy or devise for any reason should
become ineffective, *total loss, -provided it occurred before the
€ it shall be merged into the mass of the testator´s death
estate, except *this is because a total loss of the thing extinguishes
1. in cases of substitution and the obligation.
2. of the right of accretion.
SUCCESSION (BALANE) CHAMP © 2004
Notes - 91 -

Art. 958.

A mistake as to the name of the thing

bequeathed or devised, is of no consequence, if
it is possible to identify the thing which the
testator intended to bequeath or devise.

Art. 959.

A disposition made in general terms in favor of

the testator's relatives shall be understood to
be in favor of those nearest in degree.

THE END. champ.reyno © 2004