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SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

WILLS & SUCCESSION


TITLE IV
Succession

b.

CHAPTER 1
General Provisions
ARTICLE 774.
Succession is a mode of acquisition by
virtue of which the property, rights and obligations to the
extent of the value of the inheritance, of a person are
transmitted through his death to another or others either by
his will or by operation of law. (n)

Succession is a derivative mode of acquisition

Bases of Succession
1. Natural Law
2. Socio-economic postulate prevents wealth from
being stagnant
3. Attribute of ownership

Foreigners can acquire lands in the Philippines


only in case of hereditary succession, which is
succession by operation of law and not by a will
Kinds of Succession
I. As to effectivity:
a. Inter vivos (donation) effective during the
lifetime of the person
b. Mortis causa (succession) effective upon
the death of the person

If a deed is a donation, there are


certain formalities that must be observed

If a deed is succession, the formalities


will be different. If it is a will, the person
intended it to be a succession and the
formalities shall comply with the formalities
of a will
2 Types of Will:
i. Notarial Will
ii. Holographic Will
3 distinguishing characteristics of a donation
mortis causa:
1. It conveys no title or ownership to the transferee
before the death of the transferor; or what amounts
to the same thing: the transferor should retain
ownership (full or naked) and control of the
property
2. Before his death, the transfer should be
revocable by the transferor at will, ad nutum but
revocability may be provided for indirectly by
means of a reserved power in the donor to dispose
of the properties conveyed
3. The transfer should be void if the transferor
should survive the transferee
If these 3 characteristics are present, the
document is not a deed of donation but rather, it is
a will. It must comply with the formalities of a will
II. As to whether or not there is a will:
a. Testamentary or Testate Succession if a
person leaves a will
b. Intestate or Legal Succession if a person
dies without leaving a will
III. As to the transferee or the recipient of the property
a. Compulsory succession or succession to
the legitime Part of property which cannot
be disposed of to anybody because that portion
is
reserved
to
his
compulsory
heirs.

Compulsory heirs are the persons who cannot


be deprived of their inheritance regardless of
the will of their decedent.
Voluntary succession or the succession
to the free portion If a person dies, his
estate shall be divided into 2 parts. One part
is the legitime which is reserved for his
compulsory heirs and the other part is the
free portion which he can give to anybody

IV. As to the extent of right and obligations involved:


a. Universal succession or succession by an
heir is the succession to the universality or
the aliquot portion of the estate of the
decedent
b. Particular succession which is succession
to the specific portion of the property of the
decedent
c. Contractual succession happens when
future husbands and wives give to each other
in their marriage settlement future property,
which shall be effective upon their death
d. Freak succession is where there is still
succession even without the intervening
effect of succession. This happens when in a
decree of annulment or separation or nullity
of the marriage, the spouses are ordered to
deliver to their children their presumptive
legitime.
ARTICLE 775.
In this Title, "decedent" is the general
term applied to the person whose property is transmitted
through succession, whether or not he left a will. If he left a
will, he is also called the testator. (n)

The decedent is the person


whether or not he left a will

The testator is the person who died who left


a will

who

died

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

Inheritance is different from succession


because the latter is a mode of acquisition, by
virtue of which the property, rights and
obligations are transmitted.

Property, as defined by law, may be subject


of succession except the following:
1.
Those which are outside the
commerce of men or which are not owned by
men (res nullus)
2.
Those which are owned by
everyone (res communes)
3.
Those which are prohibited by
law
4.
Any property which is not
capable of appropriation

The
ownership
of
organs may be transferred by donation or by will.
Even if the formalities of the will are not complied
with, as long as the donation was made in good
faith, the will or donation is not valid. It shall be
given effect since the important element is that
the will was made in good faith.
RIGHTS
Purely Personal Rights
GENERAL RULE: It is not transmissible since it is
extinguished by death
EXCEPTION: It is transmissible:
Article 173 Family Code The action to claim
legitimacy may be brought by the child during

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

his lifetime and shall be transmitted to the heirs


should the child die during minority or in a state
of insanity. In these cases, the heirs shall have a
period of five years within which to institute the
action.

Examples:
right to parental authority
marital rights
right of a Chinese merchant
right to vote
Patrimonial rights

These are rights which refer


to property
GENERAL RULE: Transmissible
Examples: action
for
forcible
entry/unlawful
detainer
action to recover property
EXCEPTIONS:
Extinguished by death as provided by law or
agreement by the parties (ex. agency, commodatum,
contract of lease)
OBLIGATIONS
GENERAL RULE: Transmissible
EXCEPTIONS:
1. Purely personal
2. Non-transferable by law

of seventy-five years, an absence of five years


shall be sufficient in order that his succession may
be opened. (n)
ARTICLE 391 (New Civil Code). The following shall
be presumed dead for all purposes, including the
division of the estate among the heirs:
(1) A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who has
not been heard of for four years since the loss of
the vessel or aeroplane;
(2) A person in the armed forces who has taken
part in war, and has been missing for four years;
(3) A person who has been in danger of death
under other circumstances and his existence has
not been known for four years. (n)
ARTICLE 43 (New Civil Code). If there is a doubt,
as between two or more persons who are called to
succeed each other, as to which of them died first,
whoever alleges the death of one prior to the
other, shall prove the same; in the absence of
proof, it is presumed that they died at the same
time and there shall be no transmission of rights
from one to the other. (33)

3.

Non-transferable by contract or agreement


between the parties.
Examples of obligations extinguished by death:
1. Obligation to pay taxes
2. Criminal liability

3. Right to give support


Debts (2 views)
1. Not transmissible since it is actually the estate
of the deceased which pays the debts
2. Transmissible because the shares of the heirs
are reduced by the payment of the debts
(preferred view)
ARTICLE 777.
The rights to the succession are transmitted
from the moment of the death of the decedent. (657a)

Death is a condition for


the transmission of a right by succession.

While your parents are


still alive, their properties are still owned by them.
What you have is merely an inchoate right or an
expectancy. It is not an absolute right.
Conditions for the transmission of a successional
right:
1. There should be death (actual or presumed) of the
transferor
2. The rights or properties are transmissible
3. The transferee is alive
Presumed Death

Under ordinary circumstances, 10 years

After the age of 75, 5 years


In these 2 instances, the moment of death
is reckoned after 5 or 10 years, whichever is
applicable.

Under extraordinary circumstances, 4


years
In this instance, the moment of death is
reckoned
from the moment of disappearance.
ARTICLE 390 (New Civil Code). After an absence of
seven years, it being unknown whether or not the
absentee still lives, he shall be presumed dead for all
purposes, except for those of succession.
The absentee shall not be presumed dead for
the purpose of opening his succession till after an
absence of ten years. If he disappeared after the age

If there are circumstances which point to the


time of the actual death of the person, then,
that time wherein there is proof should be
flowed and not the presumptions.

In theory, the heirs can immediately dispose


of their properties when the decedent dies
because of Article 777. But in reality, you cannot
since the will has to be probated first.

If you are the sole heir, all you have to do is


execute an Affidavit of Self-Adjudication and
follow the process provided by law

If there is more than one heir, they may


execute and Extrajudicial settlement among
themselves and follow the process provided by
law
ARTICLE 778.
Succession may be:
(1)
Testamentary;
(2)
Legal or intestate; or
(3)
Mixed. (n)
ARTICLE 779.
Testamentary succession is that which
results from the designation of an heir, made in a will
executed in the form prescribed by law. (n)

Conditions for Testamentary Succession:


1. There must be a will
2. There should be a designation of heir
3. There must be observance of the formalities
required
by law.
PRINCIPLES IN TESTAMENTARY SUCCESSION

1.

TESTAMENTARY SUCCESSION IS PREFERRED


OVER INTESTATE SUCCESSION
When there is a will, the will has to undergo
probate. Probate is a proceeding wherein you
determine whether or not the will was validly
executed and whether or not the will was
executed by person who has testamentary
capacity.
There is no prescriptive period in the probate
of will as long as there is a will.

2.

DOUBTS MUST BE RESOLVED IN FAVOR OF


TESTACY
If there is doubt as to the validity of a will, the
interpretation wherein the will is given effect
should be preferred.
Legal or Intestate Succession
1. There is no will
2. The will is not valid at all

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

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

When mixed succession occurs:


1.
When the testator fails to dispose all of
his properties in a will
2.
When the will does not validly dispose
of all the property of the testator
ARTICLE 781.
The inheritance of a person includes not only
the property and the transmissible rights and obligations
existing at the time of his death, but also those which have
accrued thereto since the opening of the succession. (n)

This
article
refers
to
after-acquired
properties. Those are acquired from the moment
of death onwards will belong to the devisee,
legatee or the heir to whom the property was
given.
Inheritance includes:

The
property,
transmissible
rights and the transmissible obligations of the
decedent to the extent of the value of the
inheritance; and

Those properties, or rights or


obligations, if any, which have accrued since the
opening of the succession.
ARTICLE 782.
An heir is a person called to the succession
either by the provision of a will or by operation of law.
Devisees and legatees are persons to whom gifts of real
and personal property are respectively given by virtue of a
will. (n)

Heirs

Those who succeed to the universality of the


rights, properties and obligations of the decedent

They are not given specific portions of the


property but aliquot shares
Kinds of Heirs:

Compulsory or forced heirs


are persons who are not deprived of their
inheritance unless there are causes to disinherit
them and the causes are provided by law.
LEGITIME is that portion of the property, rights and
obligations of the decedent which you cannot just
dispose of because the law reserved it for the
compulsory heirs.

Devisee succeeds to real properties


immovable properties of the decedent

HEIRS
1. Succeed by general
right or universal title to
all or an aliquot part of
the estate
2.
Heirs exist both in
testamentary succession
and intestate succession
3.
The
heir,
if
compulsory, succeeds to
the
inheritance
regardless of the will of
the decedent
4.
Quantity cannot be
determined until after
liquidation of properties
of the estate
5. Heirs represent the
juridical personality of
the deceased, acquiring
his property, rights and
obligations
6. Heirs succeed to the
remainder of the estate
after
all
the
debts,
devisees and legatees
have been paid

Legatee or Devisee

2.
Legatees
and
devisees exist only in
testamentary succession
3.
Legatees
and
devisees succeed only by
testators will
4. Quantity can easily be
determined
5.
Legatees
and
devisees
do
not
represent the juridical
personality
of
the
deceased
because
it
acquires only properties
6.
Legatees
and
devisees succeed only to
the determinate thing or
amount given

CHAPTER 2
Testamentary Succession
SECTION 1
Wills
SUBSECTION 1
Wills in General

PRETERITION happens when a direct line or a


compulsory heir is omitted form the will. The effect
is the will cannot be given effect. So, there shall be
intestacy wherein the will is disregarded and as if
the person died without a will.

LEGATEES & DEVISEES


1. Succeed by special or
particular title

Importance
of
distinguishing
heirs
from
legatees and devisees:
1.
When there is preterition, the
instituted voluntary heirs do not get anything.
The legatees/devisees retain the properties given
to them as long as the legitime is not impaired.
2.
When there is invalid disinheritance,
the instituted voluntary heir gets nothing while
the one who received properties by way of legacy
or devise retains the property given to them as
long as the legitimes of the compulsory heirs are
not impaired.

Legal or intestate heirs are


heirs who inherit by operation of law. The person
dies without a will. Voluntary, testamentary or
testate heirs are heirs who will inherit because of
the will of the decedent.

or

Distinctions between Heirs & Legatees and


Devisees:

All compulsory heirs are legal


heirs. But not all legal heirs are compulsory heirs.
When a person dies without a will, then, the
compulsory heirs succeed by operation of law. If
there is a will but the will is not valid, then, the
compulsory heirs succeed by operation of law since
the will is disregarded.

The free portion may be given to anybody


except those who are prohibited by law to inherit
from the decedent. If there is a will, the free
portion is given to the voluntary heirs

Legatee succeeds to personal properties

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

The making of a will is an act by which a


person is permitted by law to repose his property
effective upon his death. It is not a mode of
transferring property because that is succession.
It does not also consist of property, rights and
obligations because that is inheritance.

A will is an instrument wherein certain


dispositions are made by persons to effect mortis
causa

Thus, it may be an or an instrument


Elements of a Will:

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

1. It is strictly a personal act


It cannot be delegated to a third person. The
disposition of the will should be the disposition of the
person. Since it is personal, will-making shall not be
made in public. Even if a will is acknowledged before
a notary public, a will is not a public document. Even
a notary public is not required to keep a copy of the
will.
2. There must be animus testandi (intent to make a
will)
One should know that the effect of such
document is to transfer ones properties to a
particular person mentioned in the document.
3.The making of a will is a statutory right, not a natural
right
4.It is a solemn or formal act
For the will to be valid, each form shall comply
with the rules prescribed by the New Civil Code.
5.It is a unilateral act
The testator cannot condition the validity of his
will upon the consent of another.
6.The testator must be capacitated to make a will
7.It is free from vitiated consent
8.It is essentially revocable and ambulatory
9.It is an individual act, as distinguished from a joint act
The will must contain the act of only one
person. Joint will are prohibited.
10. It disposes of the testators estate in accordance to
his wishes
11. It is effective mortis causa
ARTICLE 784.
The making of a will is a strictly personal act;
it cannot be left in whole or in part to the discretion of a third
person, or accomplished through the instrumentality of an
agent or attorney. (670a)

Holographic wills are supposed to be entirely


written, dated and signed in the hands of the
testator. Even the mechanical act of drafting the
will cannot be delegated to a third person

As to notarial wills, the mechanical act of


drafting the will can be delegated to a third person.
But the content of the will must be the disposition
of the testator himself
ARTICLE 785.
The duration or efficacy of the designation of
heirs, devisees or legatees, or the determination of the
portions which they are to take, when referred to by name,
cannot be left to the discretion of a third person. (670a)

Testamentary acts which cannot be delegated to


third persons:
1. The duration of designation of the heirs,
devisees or legatees
2. The efficacy of the designation of the heirs,
devisees or legatees
3. The determination of the portions which the
heirs, devisees, or legatees are to take, when
refereed to by name
ARTICLE 786.
The testator may entrust to a third person
the distribution of specific property or sums of money that he
may leave in general to specified classes or causes, and also
the designation of the persons, institutions or establishments
to which such property or sums are to be given or applied.
(671a)

What is entrusted to a third person is the


distribution of specific property or sums of money
Requisites of Article 786:
1. The testator entrusts to a third person

2.

The distribution of specific property or sums of


money

3.

These specific property or sums of money are


left in general to specific classes or causes
4. There is the designation of the persons,
institutions or establishments to whom such
property or sums of money are to be given or
applied
Distinction between Article 785 and Article 786:
Article 785
The heirs, legatees
devisees are named.

or

There is no specific
property or sums of
money.
What is delegated is the
determination
of
the
portion which shall go to
the named heir, legatee
or devisee.

Article 786
There is no such heir,
legatee or devisee that is
named
There is specific property
or sums of money.
There is a determination
of
the
persons,
establishments
or
institution or to whom the
specific property or sums
of money is to be given or
applied.

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

Article 785
This refers more to the
institution of the heirs.

Article 787
This refers more on the
designation or disposition
of the properties. This is
not valid because the
disposition is subject to
the will of a 3rd person.
Whether
or
not
a
disposition shall be valid
cannot be left to the will
of a 3rd person.

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

The will must be interpreted liberally in favor


of validity

In the interpretation of the will, the wishes of


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

2 KINDS OF AMBIGUITY
1.
PATENT OR EXTRINSIC AMBIGUITY
appears on the face of the will itself.
2. LATENT OR INTRINSIC AMBIGUITY does
not appear on the face of the will. Ambiguity is
discovered by examination outside the will.
4 kinds of Latent or intrinsic ambiguity
1. Imperfect description of the heirs, legatees or
devisees
2. Imperfection description of the property to be
given
3. When 2 or more persons meet the description

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

4. When 2 or more things/properties meets the


description
How to resolve the ambiguities?
1. Intrinsic Evidence You cure the ambiguity
by examining the will. You examine the words
used in the will.
2. Extrinsic Evidence/Evidence Aliunde
Evidence that is not found in the will but found
outside of the will, such as letters, documents,
persons or investigation
Oral evidence

Supposed oral declarations of the


testator cannot be used because the testator is
already dead

Oral testimonies of other persons can


be used for as long as they are not testifying on the
supposed oral declarations of the testator
Dead Mans Statute

In an action where a claim is filed against the


estate, where the plaintiff is the claimant and the
defendant is the executor of the deceased person,
both parties are prohibited to testify as to
something which the deceased said in his lifetime
ARTICLE 790.
The words of a will are to be taken in their
ordinary and grammatical sense, unless a clear intention to
use them in another sense can be gathered, and that other
can be ascertained.
Technical words in a will are to be taken in their technical
sense, unless the context clearly indicates a contrary
intention, or unless it satisfactorily appears that the will was
drawn solely by the testator, and that he was unacquainted
with such technical sense. (675a)

Ordinary Terms
GENERAL RULE: Give it an ordinary or literal meaning
EXCEPTION: If there is an intention to give it another
meaning
Technical Terms

These are used by persons engaged in


specialized activities in certain fields or profession
GENERAL RULE: Give it a technical meaning
EXCEPTIONS:
1) If the testator himself made the will and it is very
clear that he is unacquainted or unfamiliar with the
term
2) If it is really the intention of the testator to give the
technical word an ordinary meaning
ARTICLE 791.
The words of a will are to receive an
interpretation which will give to every expression some effect,
rather than one which will render any of the expressions
inoperative; and of two modes of interpreting a will, that is to
be preferred which will prevent intestacy. (n)

2 parts of Article 791:


1. The will must be interpreted as a whole
2. Testacy favored over intestacy
ARTICLE 792.
The invalidity of one of several dispositions
contained in a will does not result in the invalidity of the other
dispositions, unless it is to be presumed that the testator
would not have made such other dispositions if the first invalid
disposition had not been made. (n)

GENERAL RULE: The invalid dispositions will not affect


the valid ones. The will remains valid.
EXCEPTION:
Entire will is invalidated or the valid
dispositions are invalidated is if it is the intention of the
testator that both the valid and invalid dispositions are
to be indivisible, such that the other dispositions cannot
be given effect if the other dispositions turn out to be
invalid.

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

Article 793 covers those after-acquired


properties after the execution of the will up to the
time of the death

Article 78 covers properties arising from the


moment of death onwards

Article 793 only applies to devices and


legacies and not to inheritance because
inheritance comprises the universality or an
aliquot portion of the estate
GENERAL RULE: Only those properties owned by the
testator at the time of the execution of the will are
included. Those acquired after the execution of the
will are excluded.
EXCEPTIONS:
1. If the testator expressly provides in his will
that properties acquired AFTER the execution of
the will are included.
2. Article 836 the effect of the execution of a
codicil
3. Article 930 legacy or device belonging to
another person is void as a general rule because
the testator cannot give what he does not own.
But if the testator later acquires the ownership,
the legacy or devise can be given effect
4. Article 935 legacy of credit or remission of
debt
ARTICLE 794.
Every devise or legacy shall convey all the
interest which the testator could devise or bequeath in the
property disposed of, unless it clearly appears from the will
that he intended to convey a less interest. (n)

GENERAL RULE: All of the testators rights in a


property are transmitted because it is presumed that
the testator intended to dispose his whole interest in
the property.
EXCEPTIONS:
1. If it clearly appears in the will that the
testator merely intend to convey a less interest
2. If the testator clearly provided that he
conveys a greater interest
3. The testator can also give property which he
knows is not owned by him
ARTICLE 795.
The validity of a will as to its form depends
upon the observance of the law in force at the time it is
made. (n)

Kinds of validity of wills:


1. FORMAL or EXTRINSIC VALIDITY refers to the
forms and solemnities and the formalities that have
to be conformed and complied with in the execution
of the will.
2. INTRINSIC VALIDITY refers to the legalities of
the provisions of wills.
EXTRINSIC VALIDITY
ARTICLE 17 NEW CIVIL CODE. The
forms
and
solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the
country in which they are executed.
When the acts referred to are executed before
the diplomatic or consular officials of the Republic
of the Philippines in a foreign country, the
solemnities established by Philippine laws shall be
observed in their execution.
Prohibitive laws concerning persons, their acts
or property, and those which have for their object
public order, public policy and good customs shall
not be rendered ineffective by laws or judgments

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

promulgated, or by determinations or conventions


agreed upon in a foreign country. (11a)

Extrinsic Validity can be viewed from 2 points:


a. Viewpoint of TIME the extrinsic validity of a will
depends upon the observance of the law enforced at
the time the will is made, not at the time of death and
not at the time of probate. Testator cannot possibly
and is not expected to know what laws will govern in
the future.
b. Viewpoint of PLACE/COUNTRY
i.
Testator is a Filipino who
executes a will in the Philippines
Philippine laws shall be applied
ii.
Testator is a Filipino who
executes a will abroad before the
diplomatic or consular officials of the
Philippines Philippine laws shall be applied
iii.
Testator is a Filipino who
executes a will abroad not before a
diplomatic or consular officials of the
Philippines
A.
Law of the place where
he may be Article 815
B.
Law of the place where
he executes the will Article 17
C.
Philippine law Article
815
iv.
Testator is an alien who
executes a will abroad
A.
Law of the place where
the will is executed Article 17
B.
Law of the place of his
residence or domicile Article 816
C.
Law of his own country
or nationality Article 816
D.
Philippine law Article
816
v.
Testator is an alien who
executes a will in the Philippines
A.
Law of the place where
the will is executed (Philippines)
Article 17
B.
Law of his own country
or nationality Article 817
ARTICLE 815.
When a Filipino is in a foreign country, he is
authorized to make a will in any of the forms established by
the law of the country in which he may be. Such will may be
probated in the Philippines. (n)
ARTICLE 816.
The will of an alien who is abroad produces
effect in the Philippines if made with the formalities prescribed
by the law of the place in which he resides, or according to the
formalities observed in his country, or in conformity with those
which this Code prescribes. (n)
ARTICLE 817.
A will made in the Philippines by a citizen or
subject of another country, which is executed in accordance
with the law of the country of which he is a citizen or subject,
and which might be proved and allowed by the law of his own
country, shall have the same effect as if executed according to
the laws of the Philippines. (n)

with this new body of laws and by the Rules of


Court; but the testamentary provisions shall be
carried out insofar as they may be permitted by
this Code. Therefore, legitimes, betterments,
legacies and bequests shall be respected;
however, their amount shall be reduced if in no
other manner can every compulsory heir be given
his full share according to this Code. (Rule 12a)

Example: A will was executed in 1910 without


giving anything to his illegitimate child. If he died
under the Old Civil Code, the illegitimate child does
not have a successional right. If he died under the
New
Civil
Code,
illegitimate
children
have
successional rights. Since the testator died during
the effectivity of the New Civil Code, the will is
intrinsically void.
b. Viewpoint of PLACE/COUNTRY law enforced
is the national law of the decedent
ARTICLE 16 NEW CIVIL CODE. Real property as
well as personal property is subject to the law of
the country where it is situated. iatdc2005
However,
intestate
and
testamentary
successions, both with respect to the order of
succession and to the amount of successional
rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law
of the person whose succession is under
consideration, whatever may be the nature of the
property and regardless of the country wherein
said property may be found. (10a)

2 Proceedings if a person dies with a will:


1. Probate proper proceeding instituted to
determine the genuineness and authenticity
of a will.
It is concerned only with the
extrinsic validity of the will.
2. Distribution proceedings intrinsic validity of
the will is considered
GENERAL RULE: Foreign laws may not be taken
judicial notice of and has to be proven like any other
fact in dispute between the parties in any proceeding
EXCEPTIONS:
1.
If the foreign laws are within the actual
knowledge of the court; or
2.
When these laws have been considered
before by the court in a previous case and the
parties do not oppose as to the consideration of
the court as to the existence of the foreign law.
Instances when the intrinsic validity of wills of
foreigners is governed by Philippine laws
1. DOCTRINE OF PROCESSUAL PRESUMPTION
In the absence of evidence of foreign laws, it
is presumed that it is the same as Philippine law.
2. RENVOI DOCTRINE (referring back)
The testator is a Philippine resident and a
national of another country. The national law of
the decedent says that the intrinsic validity of a
will should be governed by the domiciliary law or
the law of his residence or domicile. Hence,
Philippine law will be applied.

The legislature cannot validate a void will

INTRINSIC VALIDITY
Intrinsic Validity can be viewed from 2 points:
a. Viewpoint of TIME law enforced at the time of
the death of the decedent
ARTICLE 2263 NEW CIVIL CODE.
Rights to the
inheritance of a person who died, with or without a
will, before the effectivity of this Code, shall be
governed by the Civil Code of 1889, by other
previous laws, and by the Rules of Court. The
inheritance of those who, with or without a will, die
after the beginning of the effectivity of this Code,
shall be adjudicated and distributed in accordance

SUBSECTION 2
Testamentary Capacity and Intent

Testamentary power refers to the right or


privilege given by the state to the individual to
execute wills.

Testamentary capacity refers to the


qualification of a person to execute a will.

A person may have testamentary power but


no testamentary capacity

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

There are persons who have testamentary


capacity but they do not have testamentary power,
like in some other countries

But they may be used interchangeably


KINDS OF TESTAMENTARY CAPACITY
1. Active Testamentary Capacity refers to
the qualifications of persons to execute wills
2. Passive Testamentary Capacity refers to
the qualifications of persons to receive by virtue of
a will. This would be discussed more exhaustively
under the chapter on the capacity to succeed.
ARTICLE 796.
All persons who are not expressly prohibited
by law may make a will.

Testamentary capacity is the general rule

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

How do you compute 18 years?


1. Theory under the Spanish Law
Under the Spanish law, the 18th birthday should
have passed or commenced before the person can
execute a will. We follow Spanish Law
2. Theory under the American Law
It is sufficient that the day preceding ones
birthday has already commenced.
3. Theory under the Civil Code
You are already 18 years old 4 days before your
birthday because under the Civil Code, 1 year is
365 days. And in 18 years, there are 4 leap years.
So, 4 days prior to your birthday, under the Civil
Code, you are already 18 years of age.
ARTICLE 798.
In order to make a will it is essential that the
testator be of sound mind at the time of its execution.
ARTICLE 799.
To be of sound mind, it is not necessary that
the testator be in full possession of all his reasoning faculties,
or that his mind be wholly unbroken, unimpaired, or
unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of
making the will to know the nature of the estate to be
disposed of, the proper objects of his bounty, and the
character of the testamentary act. (n)

3 Requisites of a sound mind:


1. The testator must know the nature of the estate to
be disposed of
2. He must know the proper objects of his bounty
3. He must know the character of the testamentary act
Degrees of Mental Incapacity or Incapacity
1. Idiots IQ average of 25; congenitally and
intellectually deficient; considered as of unsound
mind in succession
2. Imbecile IQ average of 26 to 50; mentally
deficient; considered as of unsound mind in
succession
3. Moron IQ average of 51 to 70; they can do
reading and writing; they can be self-supporting;
considered as of sound mind in succession
GENERAL RULE: Testamentary incapacity invalidates
the whole will
EXCEPTION: If the incapacity proceeds from a delusion
on a particular subject and the product of such delusion
might be declared invalid without affecting other
portions of the will
ARTICLE 800.
The law presumes that every person is of
sound mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of sound
mind at the time of making his dispositions is on the person
who opposes the probate of the will; but if the testator, one
month, or less, before making his will was publicly known to

be insane, the person who maintains the validity of the will


must prove that the testator made it during a lucid interval.
(n)

When testator is presumed of unsound mind:


(1) When the testator, one month, or less, before
making his will was publicly known to be insane;
(2) When the testator was judicially declared insane
before making his will;
(3) When the testator has Insanity of a general or
permanent nature shown to have existed at one time.
How to establish evidence of soundness of
mind?
1. You may use the testimony of the notary
public
2. The testimony of the attesting witnesses
3. The testimony of the attending physician
4. The testimony of other witnesses
ARTICLE 801.
Supervening
incapacity
does
not
invalidate an effective will, nor is the will of an incapable
validated by the supervening of capacity. (n)

Testator must be of unsound mind AT THE


TIME of the execution of the will

This is the PRINCIPLE OF SUPERVENING


CAPACITY

ARTICLE 802.
A married woman may make a will without
the consent of her husband, and without the authority of the
court. (n)
ARTICLE 803.
A married woman may dispose by will of
all her separate property as well as her share of the conjugal
partnership or absolute community property. (n)

What can the married woman or man disposed


of in a will?
1. He/she may dispose of his/her separate property;
or
2. He/she may dispose of his/her share in the
conjugal/community property.

If the spouse disposes of the entire


community property, the disposition is only valid
with respect to the portion pertaining to the share
of the spouse who is the testator. The remaining
portion becomes invalid. But if the spouse knows
that he or she has no right to dispose of the share
or his or her spouse but still he or she provides in
the will that such portion or the entire portion be
given to a certain person, in that case, you will
learn later on that it is valid. What is to be done
is for the estate to acquire the other portion.
SUBSECTION 3
Forms of Wills
2 Kinds of Wills:
1. ORDINARY OR NOTARIAL WILL that
which requires, among other things, an
attestation clause and acknowledgement before
a notary public. This will is ordinarily executed
with the aid of a lawyer. There are witnesses
and attestation clause.
2. HOLOGRAPH OR HOLOGRAPHIC WILL
wills which are ENTIRELY written, dated and
signed in the handwriting of the testator. This
also requires NO attestation clause or witnesses
or acknowledgment.
ARTICLE 804.
Every will must be in writing and executed
in a language or dialect known to the testator. (n)

No such thing as oral wills in the Philippines

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Nuncupative Wills are wills orally made by


testator in contemplation of death and before
competent witnesses. Nuncupative wills are not
recognized in the Philippines.

The presumption is that the testator knew the


language used in writing the will

There is no statutory requirement that the will


should allege that the language used therein is
understood by the testator

There is no need to state in the Attestation


clause that the will is in the language or dialect
known to the testator

That the will is in a language known to the


testator can be proved by extrinsic evidence or
even by parol or oral evidence

If the will is executed in the locality where the


testator lives, it is presumed that indeed the
testator during his lifetime knew or understood the
language or dialect in that locality

The testator must know the language or dialect.


No amount of interpretation or explanation will cure
the defect

Attesting witnesses are not required to know


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

1. Article 805 only applies to notarial wills


2. The requirements under Article 805 are to be
strictly construed
Formal Requirements under Article 805:
1.
Subscribed at the end by the
testator himself or the testators name is
written by some other person in the presence
and under the express direction of the
testator

Subscription
means
the
physical act of signing

E-signatures cannot be affixed


in a will because e-signatures are applicable
only to transactions and contracts

Signature must appear not the


physical end but at the logical end of the will

The presence of additional


dispositions in a notarial will after the signature
of the testator invalidates the entire will
because it affects the form
2.
Attested and subscribed by three
or more credible witnesses in the presence of
the testator and of one another

in the presence of the testator


and of one another not actually seeing but in
a position to see if you want to see without any
physical obstruction
ATTESTATION

SUBSCRIPTION

Consists in witnessing the


testators execution of the
will in order to see and
take note mentally that
those things are done
which the statutes require
for the execution of the will
and that the signature of
the testator exist as a fact.
Mental act of the senses.
You see, smell, feel etc.

The signing of the


witnesses name upon
the same paper for the
purpose
of
identification of such
paper
as
a
will
executed
by
the
testator.

The purpose is to render


available proof of the
authenticity of the will and
its due execution.
The act of the witnesses

The
purpose
identification.

To attest a will is to know


that it was published as
such and to certify the fact
required to constitute an
actual or legal publication.

Tests
a.
b.
c.
d.

Mechanical act of the


hand.
is

May be the act of the


testator
when
the
testator signs the will
or the witnesses if the
witnesses affixed their
signature in the will.
To subscribe a paper
published as a will is
only to write on the
same
paper
then
names of the witnesses
for the sole purpose of
identification.

of Presence
Test of vision
Test of position
Test of mental apprehension
Test of available senses

3.
The testator or the person
requested by him to write his name and the
credible witnesses of the will shall sign
each and every page of the will, on the left
margin, except the last page

Marginal witnesses are also


the subscribing witnesses

Purpose of the signing at the


left-hand margin of the will is to identify the
pages and to prevent fraud
GENERAL RULE: Absence of signature on the first
page of the will invalidates the will.
EXCEPTIONS:
1. If the will contains only one page, then
logically that one page already has the signature
of the testator because he is required to sign at
the end of the disposition and that also contains
the signatures of the witnesses in the attestation
clause.
2. Inadvertent lifting of pages.
4.
All the pages shall be numbered
correlatively in letters placed on the upper
part of each page

As long as it the page number


has a physical location, the will is still valid.
The page number may even be incorporated
in the text of the document itself

If the will has only one page,


the will is valid because you can easily detect
whether there is loss of pages because if the
one page is lost then there is no will to speak
of

Purpose of numbering the


pages of a will:
a)
To
guard
against
fraud;
b)
To
forestall
any
attempt to suppress or substitute any of
the pages;

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

c)
To afford means of
detecting the loss of any of its pages;
d)
To prevent any increase
or decrease in the pages.
ATTESTATION

It is the act of
witnessing the execution of the will. It is a mental
act.

Attestation
clause is that clause of an ordinary or notarial will
wherein the witnesses certify that the instrument
has been executed before them and the manner of
execution of the same

What do the
subscribing witnesses attest to?
1. They attest to the genuineness of the signature
of the testator
2. They attest to the due execution of the will

What
should the attestation clause state?
1.
The number
of pages used upon which the will is written
2.
The
fact
that the testator signed the will and every page
thereof, or caused some other person to write
his name, under his express direction;
3.
The signing
by the testator or by the person requested by
him in the presence of the instrumental
witnesses; and
4.
That
the
instrumental witnesses witnessed and signed
the will and all he pages thereof in the
presence of the testator and of one another.
ARTICLE 806.
Every will must be acknowledged before a
notary public by the testator and the witnesses. The notary
public shall not be required to retain a copy of the will, or file
another with the office of the Clerk of Court. (n)

Acknowled
gment is a statement made by the notary public
that the testator and the witnesses have personally
come before him, that they voluntarily executed
the will and that they understood the contents.

To
acknowledge means to admit, to avow, to own
as genuine

A
holographic will need not be acknowledged before
a notary public

The testator
acknowledges the execution of the will.
The
witnesses acknowledge the attestation clause.

Acknowledg
ment need not be made in the presence of the
testator and each and everyone of the witnesses. It
is just required that the testator and the witnesses
appear before the notary public, not actually at the
same time

It
is
not
required that the notary public before whom the
will is acknowledged be present during the
execution of the will

Absence of
an acknowledgment is a fatal defect
ARTICLE 807.
If the testator be deaf, or a deaf-mute, he
must personally read the will, if able to do so; otherwise, he
shall designate two persons to read it and communicate to
him, in some practicable manner, the contents thereof. (n)
ARTICLE 808.
If the testator is blind, the will shall be read
to him twice; once, by one of the subscribing witnesses, and

again, by the notary public before whom the will is


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

Article
809 gives the rule on substantial compliance
with respect to the attestation clause

There
is
substantial compliance when there has been
an HONEST ATTEMPT on the part of the testator
to comply with the formal requisites provided by
law but the compliance is only substantial and
not literal but the purpose of the law is
substantially accomplished although not strictly
followed

As
to
marginal signatures, there is no particular
requirement that it should really appear on the
left margin because the only purpose of marginal
signatures is for identification.

As
to
attesting signatures, the attesting witnesses are
supposed to own the statements mentioned in
the attestation clause.
Therefore, their
signatures should appear at the bottom of the
attestation clause.
If you just write on the
margin, the purpose here is not to own the
statements mentioned here but just to identify
this page, later on, as the same page which you
attested before.
Requisites of Article 809:
1. The defects and imperfections refer to the
form of the attestation or the language used
therein;
2. There is no bad faith, forgery or fraud, or
undue or improper pressure and influence;
3. The will was executed and attested in
substantial
compliance
with
all
the
requirements; and
4. The fact of such execution and attestation is
proved.
Defects or imperfections excused under Article
809:
1. Defects/imperfections in the form of
attestation clause;
2. Defects/imperfections in the language used in
the attestation clause.
Formal requisites to be observed in the
execution of Notarial Wills:
1. The will must be in writing (Article 804);
2. It must be in the language or dialect known to
the testator;
3. The will must be signed by the testator or by
another person in his presence or under his
express direction (Article 805);
4. That the signing by the testator or by the
person under his express direction and in his
presence must be done in the presence of at
least 3 instrumental witnesses;
5. That the will is attested and subscribed by at
least 3 credible witnesses in the presence of the
testator and of each and every one of them;
6. That the will must be signed by the testator
and by at least 3 credible witnesses on the left
hand margin on each and every page;

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

7. That the will must be numbered correlatively in


letters;
8. That the signing by the 3 witnesses must be
done in the presence of the testator and each and
every one of them;
9. There must be an Attestation clause stating
therein the number of pages upon which the will is
written, a statement that the testator signed the
will or another person signed the will under the
express direction of the testator;
10. The will is signed at the left margin by the
testator and the 3 instrumental witnesses in the
presence of the testator and of one another;
11. The will must be acknowledged before a notary
public (Article 806);
12. The will must be read twice by 2 persons
designated by the testator if the testator is deaf or
deaf-mute (Article 807);
13. If the testator is blind the will must be read to
him once, by one of the subscribing witnesses, and
again, by the notary public (Article 808); and
14. There must be substantial compliance with all
the requirements of the law (Article 809).
ARTICLE 810.
A person may execute a holographic will
which must be entirely written, dated, and signed by the hand
of the testator himself. It is subject to no other form, and may
be made in or out of the Philippines, and need not be
witnessed. (678, 688a)

A holographic will is a will that is entirely


written, dated and signed by the hand of the
testator himself

It is important to know the date of execution


because after the effectivity of the Spanish Civil
Code, which was overtaken by the Code of Civil
Procedure August 7, 1901 August 1950
holographic wills, during that period, were not
allowed.

Strictly speaking, in notarial wills, attestation


clause is not part of the will because it contains no
dispositions. The fact that the attestation clause is
typewritten will not invalidate the will.
Requisites in the execution of holographic wills:
1. It must be written in a language or dialect
known to the testator
2. It must be ENTIRELY written by the testator;
3. It must be dated in the hand writing of the
testator;
4. It must be signed in the hand writing of the
testator; and
5. It must be with animus testandi.
ARTICLE 811.
In the probate of a holographic will, it shall
be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such
witnesses shall be required.
In the absence of any competent witness referred to in
the preceding paragraph, and if the court deem it necessary,
expert testimony may be resorted to. (691a)

testator. EXPLICIT meaning you must possibly


and unconditionally declare

If probate is CONTESTED, at least 3 of such


witnesses should be presented

A photocopy or carbon copy of a holographic


is allowed
GENERAL RULE: The requirement of presenting an
expert witness is discretionary on the part of the
court.
EXCEPTION: It is mandatory when after the
presenting witnesses who allegedly know the hand
writing of the testator, the court still is not convince
as to the authenticity and genuineness of the will
then the court should require expert testimony.
ARTICLE 812.
In holographic wills, the dispositions of the
testator written below his signature must be dated and
signed by him in order to make them valid as testamentary
dispositions. (n)

If there is no signature and date, then it is


presumed that the testator has no testamentary
intent as to his additional dispositions

If dated without signature, the additional


disposition is void. If signed only without date,
the additional disposition is void.
But the
holographic will itself is not affected

With respect to notarial wills, the presence of


these additional dispositions will invalidate the
entire will because in a notarial will, the signature
should appear at the logical end.
Those
additional dispositions after the signature will
invalidate the entire will.
ARTICLE 813.
When a number of dispositions appearing
in a holographic will are signed without being dated, and the
last disposition has a signature and a date, such date
validates the dispositions preceding it, whatever be the time
of prior dispositions. (n)

If the dispositions are merely signed without


the date, and the last disposition is signed and
dated, the effect is that it validates the
disposition preceding it.

If the additional dispositions in a holographic


will are not in the handwriting of the testator and
they are not signed by the testator, then, these
additional dispositions are not valid but the will
itself remains valid.

But, if these additional dispositions are signed


by the testator, the testator is owning or adopting
the additional dispositions as his own. They will
now form part of the will because it now owned
by the testator or adopted. In that case, the
entire will is void. The will now is not entirely in
the handwriting of the testator.

Signed but not dated and the last disposition


is signed and dated validated

Date only and the last disposition is dated


and signed only the last disposition is valid, all
the previous dispositions are void because the
law says signed not dated. Only the disposition
unsigned is invalid.

Not signed and not dated even if the last


disposition is signed and dated void

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

Probate is the allowance of the will by the


court after its due execution is proved
Questions
addressed
during
probate
proceedings: question of identity, question of
testamentary capacity and question of due
execution
If probate is UNCONTESTED, one witness who
knows the hand writing of the testator must be
presented and who must explicitly declare that the
will and the signature are in the handwriting of the

The insertion, cancellation erasure or


alteration mentioned in Article 814 are the ones
written in the hand writing of the testator

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Insertion, cancellation, erasure or alteration, is


not per se prohibited as long as they are
authenticated by the full signature of the testator

If the insertion, cancellation, erasure or


alteration does not bear the signature of the
testator:
GENERAL RULE: Only the erasure or insertion is
void. The entire will itself is valid.
EXCEPTION: When this insertion, cancellation,
erasure or alteration is made in an essential part of
the will. When this insertion, cancellation, erasure
or alteration will affect the essence of the will then
not only the insertion, cancellation, erasure or
alteration is void but the entire will itself.
*** Articles 815, 816 and 817 were previously
discussed under extrinsic validity of wills from the
viewpoint of place or country
ARTICLE 818.
Two or more persons cannot make a will
jointly, or in the same instrument, either for their reciprocal
benefit or for the benefit of a third person. (669)

JOINT WILL is one wherein the same


testamentary instrument is made as the will of 2 or
more persons and it is jointly executed and signed
by them.

MUTUAL WILLS or RECIPROCAL WILLS are


wills of 2 persons wherein the disposition of one is
made in favor of the other and the other also
makes dispositions in favor of the other. This is
also called TWIN WILLS. The Mutual or reciprocal
wills are embodied in separate instruments.

When the 2 dispositions are made in the same


will, it becomes a joint will. Now, we have a Joint
and Mutual will. When you have a Joint and Mutual
will, it is prohibited under Article 818.

Article 818 may cover a joint and mutual will or


joint will wherein the benefit is not for the 2 parties
who execute the will but for a third person.

Not all mutual and reciprocal wills are joint


wills.

1st view: It is valid because if it is allowed


under his national law, it should be allowed here
in the Philippines under Art 817.
2nd view: By reason of public policy, it is void
because under Article 17, our laws cannot be
subrogated by the laws promulgated in other
countries.
SUBSECTION 4
Witnesses to Wills
ARTICLE 820.
Any person of sound mind and of the age
of eighteen years or more, and not blind, deaf or dumb, and
able to read and write, may be a witness to the execution of
a will mentioned in article 805 of this Code. (n)

A blind person, under Article 808, can be a


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

Qualification of witnesses to a will:


1. He must be of sound mind
2. At least 18 yrs of age
3. Not blind, deaf or dumb
4. Able to read and write;
5. Domiciled in the Philippines
6. Not convicted of falsification of document, perjury
of false testimony
Essential elements of domicile:
1.
The fact of residing, or the physical
presence in a fixed place
2.
The
intention
of
remaining
permanently, or the animus manendi

These disqualifications apply only if the will is


executed in the Philippines

Conviction here should be by final judgment

Why are joint wills not allowed?


1. It tends to convert a will into a contract
2. It destroys the character of wills as a strictly
personal act
3. It runs counter to the idea that wills are
essentially revocable or ambulatory;
4. It may subject one to undue influence.
It
induces Parricide.
5. It makes probate more difficult especially if the
testators dies at different times.

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

Joint wills executed by a Filipino in a foreign


country are not valid in the Philippines, even
though allowed in the place of execution

Article 819 is not applicable to foreigners


executing their will. If a joint will is executed by a
foreigner abroad and it is valid in the place of
execution, it shall be recognized by our courts,
because of lex loci celebrationes (law of the place
of execution). If it is valid in the place of execution
it is valid here in the Philippines.

If a joint will is executed by a Filipino and a


foreigner, the will is void as to the Filipino and valid
with respect to the foreigner.

If a foreigner executes a joint will in the


Philippines:

If pardoned and the pardon is by reason of


innocence then you become qualified again to
become a witness to a will because when you
were acquitted because of innocence, that means
you are trustworthy as witness.

If the pardon is by reason of an executive


clemency, you are still disqualified because the
pardon erases only the penalty or the civil
consequences of the conviction but it does not
change the fact that you are dishonest and
untrustworthy.
A notary public cannot be one of the attesting
witnesses
ARTICLE 822.
If the witnesses attesting the execution of
a will are competent at the time of attesting, their becoming
subsequently incompetent shall not prevent the allowance
of the will. (n)

As long as the witness is qualified at the time


of the execution of the will, it does not matter if
subsequently he becomes incapacitated.
The
validity of the will remains.
ARTICLE 823.
If a person attests the execution of a will,
to whom or to whose spouse, or parent, or child, a devise or
legacy is given by such will, such devise or legacy shall, so
far only as concerns such person, or spouse, or parent, or
child of such person, or any one claiming under such person
or spouse, or parent, or child, be void, unless there are three
other competent witnesses to such will. However, such

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

person so attesting shall be admitted as a witness as if such


devise or legacy had not been made or given. (n)

This article refers to an attesting witness to the


execution of the will but at the same time he is a
devisee or legatee in that will

The will is still valid but he is disqualified from


receiving the devise or legacy

Even if the attesting witness is not the devisee


or legatee himself but his spouse, the parents, the
child of that witness, so the mother of the attesting
witness, the will is still valid but such person cannot
receive the legacy or devise

But this article will not apply if there are more


than 3 witnesses.

In voluntary heirs, the inheritance which they


are to receive under the will is void. Voluntary
heirs are those who receive by virtue of the
liberality by the testator but they do not receive
something if the testator does not provide for them.

As to compulsory heirs, they may still get their


legitime.
But with respect to the free portion
accorded to the compulsory heirs in the will, it is
void if such compulsory heir is also one of the 3
witnesses.
ARTICLE 824. A mere charge on the estate of the testator
for the payment of debts due at the time of the testator's
death does not prevent his creditors from being competent
witnesses to his will. (n)

A creditor is not disqualified to receive if the


testator provides in the will that such portion shall
be given to the said creditor as payment for an
obligation. Whether or not he is instituted in the
will, the creditor is entitled to be paid for his credit.

SUBSECTION 5
Codicils and Incorporation by Reference
ARTICLE 825.
A codicil is a supplement or addition to a
will, made after the execution of a will and annexed to be
taken as a part thereof, by which any disposition made in the
original will is explained, added to, or altered. (n)

The validity of the codicil depends upon the


validity of the will

If the provisions of the will and the codicil are


inconsistent, the codicil should prevail because the
purpose of a codicil is to amend, alter, or add to a
previously executed will.
CODICIL
When you execute a
codicil after you execute
a will, the codicil is taken
as a part of the will.

The codicil explains, adds


to, supplements, and
alters the provisions in
the original will.
The codicil may revoke
only a PART of the
original will.
Because a codicil is
taken as a part of the

NEW WILL
When you say after
executing the first will,
you
again
execute
another will then the new
will exists independently
of the original will and
without reference to the
original will.
Has no regard to the
previous will, it does not
explain, or add to, or
supplement the original
will. .
When you execute a new
will, the ENTIRE previous
will is revoke as a general
rule.
When you execute a new
will, they are separate.

original will, then the


original will and the
codicil are taken as one.

The one
other.

revoking

the

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

2 kinds of Codicil:
1. NOTARIAL CODICIL it follow the rules
required by law for notarial will.
2. HOLOGRAPHIC CODICIL it follow the rules
required by law for holographic will

If the codicil does not follow the requirements


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

This is the Rule on Incorporation by


Reference. It is incorporation of an intrinsic or
separate document or paper into a will by
reference so as to become a part thereof and
probated as such.
Requisites of Incorporation by Reference:
1.
The document or paper referred to in
the will must be in existence at the time of the
execution of the will.
2.
The will must clearly describe and
identify the same, stating among other things the
number of pages thereof
3.
It must be identified by clear and
satisfactory proof as the document or paper
referred to therein
4.
It must be signed by the testator and
the witnesses on each and every page, except in
case of voluminous books of account or
inventories
Requirements to be stated in the face of the
will:
1. The fact that you are referring to the document or
paper
2. The clear description and identification of the
document
3. The number of pages
Requirements to appear on the face of the
document to be incorporated or being referred
to:
1. The signature of the testator;
2. The signature of the witnesses
Requirements that can be proved by extrinsic
evidence:
1. That the document is inexistence at the time of
the execution of the will;
2. That the document is the one being referred to in
the will.
GENERAL RULE: Only notarial wills shall have
incorporation by inference because:
1.
These documents under Article 827
have to be signed by the testator and the

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

witnesses. In notarial wills, there are witnesses. In


holographic wills, there are no witnesses.
2.
In a notarial will, the contents can
either be in the handwriting of the testator,
typewritten or a combination.
When you say
documents to be incorporated into the will, these
documents may either be typewritten or in the
hand of the testator.
EXCEPTION: It may be a holographic will:
1. When the holographic will has at least 3
witnesses, there can be incorporation by reference
because by then, the subscribing witnesses in the
holographic will, although a surplusage, can sign
the document to be incorporated.
2. Even if there are no witnesses but the
document to be incorporated are entirely written,
signed and dated in the hand of the testator. In
this case, what we have is a purely holographic will.
You may have a valid incorporation by reference.
SUBSECTION 6
Revocation of Wills and Testamentary
Dispositions
ARTICLE 828.
A will may be revoked by the testator at any
time before his death. Any waiver or restriction of this right is
void. (737a)

Revocation is an act of the mind terminating


the potential capacity of a will to operate at the
death of the testator manifested by some outward
and visible act or sign symbolic thereof
GENERAL RULE: The testator can always revoke his will
during his lifetime
EXCEPTION: If the testator during his lifetime loses
testamentary capacity or becomes of unsound mind.
ARTICLE 829.
A revocation done outside the Philippines, by
a person who does not have his domicile in this country, is
valid when it is done according to the law of the place where
the will was made, or according to the law of the place in
which the testator had his domicile at the time; and if the
revocation takes place in this country, when it is in accordance
with the provisions of this Code. (n)

If the revocation is made within the Philippines


we only have to comply with the Philippine law
regardless of the nationality or domicile

If the revocation is made outside the Philippines


by a non-resident (Filipino or foreigner):
1.
The law of the place where the will was
MADE (not where the will is revoke)
2.
The law of the place of the place of
DOMICILE of the testator

If the revocation is made outside the Philippines


by a resident (Filipino or foreigner):
1.
The law of the place of the
REVOCATION
2.
The law of the place of DOMICILE

In revocation, the national law has no


revocation
ARTICLE 830.
No will shall be revoked except in the
following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as
provided in case of wills; or
(3) By burning, tearing, cancelling, or obliterating the will
with the intention of revoking it, by the testator himself, or by
some other person in his presence, and by his express
direction. If burned, torn, cancelled, or obliterated by some
other person, without the express direction of the testator, the
will may still be established, and the estate distributed in
accordance therewith, if its contents, and due execution, and
the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of Court.
(n)

3 ways of revocation:
1.
By implication of law
2.
By some will, codicil, or other writing
executed as provided in case of will (by
subsequent instrument)
3.
By means of an overt act
Acts considered by law as an act of revocation:
1.
Article 957 of the NCC When after
the testator has made a will, he sells, donate the
legacy or devise
2.
Article 106 of the FC Provisions in
the will in favor of the spouse who has given
cause to legal separation
3.
Article 1032 of the NCC - When an
heir, legatee or devisee commits an act of
unworthiness
4.
Article 936 of the NCC When a
credit has been given as a legacy is judicially
demanded by the testator
5.
Article 854 of the NCC Preterition
Kinds of Revocation by Subsequent Instrument:
1. EXPRESS REVOCATION When the new will or
codicil contains a revocatory clause.
2. IMPLIED REVOCATION When the provisions
in the subsequent wills or codicil are completely
inconsistent with the provisions in the previous
will.
Requisites for the application of revocation by
subsequent instrument:
1.
There must be testamentary capacity
AT THE TIME of revocation
2.
The subsequent instrument must be
valid
3.
The subsequent will or instrument
must contain a revocatory clause or be
incompatible with the former will thereby
showing intent to revoke
4.
The subsequent will or instrument
must be admitted to probate
Requisites for the application of revocation by
an overt act:
1.
The
testator
has
testamentary
capacity AT THE TIME of performing the act
2.
The act must be any of the overt act
mentioned under Article 830:
a.
BURNING
It is not required that the whole instrument is
completely burned. Even if only a portion of
the document is burned, it is considered to
be an act of revocation.
b.
TEARING

either you tear or cut by means of your


hands or scissors. A slight cut or a slight tear
is sufficient to be considered an act of
revocation. The greater the cut the greater is
the presumption that there is animu
revocandi on the part of the testator. If the
codicil is torn, it is an act of tearing and both
the will and codicil are revoked because a
codicil is part of the will.
c.
CANCELING
when you place a mark or a line across the
writings. If you place a mark or a line on the
spaces, there is no cancellation.
d.
OBLITERATI
NG it is when you erase thru eraser or like
you blot out. If what is blotted out is just
some provisions, these provisions are
considered to be revoked but the will
remains valid

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

3.

4.
5.

The act must be a completed act (at least a


completion of the subjective phase of the overt
act)
GENERAL RULE: Even if the tearing is not complete
or the burning is not complete then there is an
act of revocation.
EXCEPTION: When the testator starts burning his
will but he realized that he really does not want
to revoke his will. So before the will is completely
burned, he desists from burning and that is
voluntary desistance on his part. In this case,
even if the will contains a slight burn or slight
tear there is NO ACT OF REVOCATION because of
the voluntary desistance by the testator.
There must be intent to revoke or animus revocandi
The revocation must be done by the testator
himself or by some other persons in his presence
and under his express direction

PRESUMPTION:
been revoked

A duly executed will has not

Burden of proof that the will is revoked lies


upon the one who opposes the probate of the will
which that person alleges has been revoked
What should be proven during the probate of a
lost or destroyed notarial will:
1. Establish compliance with the formalities
required by law under Articles 804-809 of the NCC
2. Prove that the will was inexistent at the time of
the death of the testator or that it was fraudulently
destroyed or lost without the knowledge of the
testator or it was accidentally lost or destroyed by
the testator without intent to revoke.
3. Prove the contents clearly and distinctly by
copies or without copy by recital of content by
some document or the testimony of the witnesses
ARTICLE 831.
Subsequent wills which do not revoke the
previous ones in an express manner, annul only such
dispositions in the prior wills as are inconsistent with or
contrary to those contained in the later wills. (n)

Article 831 talks about Implied Revocation


made in a subsequent instrument

There is IMPLIED REVOCATION when the


testator, after having executed a will executes
another will or codicil which the will or codicil does
not contain a revocatory clause but its contents are
inconsistent with the former will then there is
implied revocation
ARTICLE 832.
A revocation made in a subsequent will shall
take effect, even if the new will should become inoperative by
reason of the incapacity of the heirs, devisees or legatees
designated therein, or by their renunciation. (740a)

Article 832 is the DOCTRINE OF ABSOLUTE


REVOCATION

On the other hand, the DOCTRINE OF


DEPENDENT RELATIVE REVOCATION is where
the act or destruction is connected to the making of
a will so as squarely to raise the inference that the
testator meant the revocation of the old would
depend upon the efficacy of the new disposition
and if for any reason the new will intended to be
made as a substitute is inoperative, the revocation
fails and the original will is in full force and effect

There is no revocation by overt act if the


destruction of the first will was prompted by a false
belief that the subsequent will executed was valid

If the destruction is AFTER the execution of the


subsequent will, the Doctrine of Dependent Relative
Revocation applies. He destroyed the 1st will after
having executed the 2nd will.

But if he destroyed the 1st will LONG BEFORE


the execution of the subsequent will, you can no
longer apply the doctrine. The will here was
destroyed by an overt act, so it is absolute.
ARTICLE 833.
A revocation of a will based on a false
cause or an illegal cause is null and void. (n)

Article 833 is another aspect of the Doctrine


of Dependent Relative Revocation. You revoke
the will based on a false belief

When the revocation is made by a


subsequent instrument the false cause must
be stated in the face of the will
ARTICLE 834.
The recognition of an illegitimate child
does not lose its legal effect, even though the will wherein it
was made should be revoked. (741)

Recognition takes place immediately upon


the execution of the will

Recognition is not disposition of property


SUBSECTION 7
Republication and Revival of Wills
REPUBLICATION
It is the re-establishment by
the testator of previously
revoked will or one invalid
for want of proper execution
as to form or for other
reasons so as to give
validity to said will
It involves the act of the
testator.
There is a will previously
revoked or a will valid as to
form or a will invalid for any
other cause

REVIVAL
It
is
the
reestablishment
to
validity by operation
of law of a previously
revoked will.
It involves the act of
law, operation of law.
A
will
previously
revoked.

ARTICLE 835.
The testator cannot republish, without
reproducing in a subsequent will, the dispositions contained
in a previous one which is void as to its form. (n)

Article 835 gives the rule on express


republication
or
republication
by
reexecution

Republication is the re-establishment by the


testator of a previously revoked will or one invalid
for want of proper execution as to form or for
other reasons so as to give validity to said will

If the testator previously executed a void will


and he would want to give life to this void will,
then he has to republish his will.

Or, if previously, the testator revoked his will


and he would like to give life to this revoked will.
So, he has to republish his will.
2 Kinds of Republication:
1)
EXPRESS REPUBLICATION/
REPUBLICATION BY RE-EXECUTION is a
republication in a subsequent will a previous one
which is void as to form (Article 835)
2)
IMPLIED
REPUBLICATION/REPUBLICATION
BY
REFERENCE is the execution by a codicil
referring to a previously revoked will or a will
valid as to form but void because of some
extrinsic defects like lack of testamentary
capacity (Article 836)

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

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

If the old will is void as to form, the only way to


republish it is by re-execution.

If old will is void but not as to form because the


testator lacks testamentary capacity, it can be
republished by re-execution or it can be
republished by reference.

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

There is no revival if the first will is expressly


revoked by the 2nd will

There is revival if the first will is IMPLIEDLY


REVOKED by a second will

PRINCIPLE OF INSTANTER states that when


the will is EXPRESSLY revoked by a 2 nd will, the
revocation of the 2nd will by the 3rd will will not
revive the 1st will. This is because revocation takes
effect immediately. It does not wait for the death
of the testator to become effective because
revocation does not take the form of testamentary
disposition.
SUBSECTION 8
Allowance and Disallowance of Wills
ARTICLE 838.
No will shall pass either real or personal
property unless it is proved and allowed in accordance with
the Rules of Court.
The testator himself may, during his lifetime, petition the
court having jurisdiction for the allowance of his will. In such
case, the pertinent provisions of the Rules of Court for the
allowance of wills after the testator's death shall govern. i
The Supreme Court shall formulate such additional Rules
of Court as may be necessary for the allowance of wills on
petition of the testator.
Subject to the right of appeal, the allowance of the will,
either during the lifetime of the testator or after his death,
shall be conclusive as to its due execution. (n)

Probate is the act or process of proving before


a competent court the due execution of an
instrument purported to be the last will and
testament of a deceased for its allowance by the
said court, that is, for its official recognition and the
carrying out of its provision in so far as they are in
accordance with law.

A probate proceeding is a special proceeding.


It is a proceeding in rem.

In a probate proceeding, the inquiry as a


General Rule is limited only to the EXTRINSIC
VALIDITY of the will

Extrinsic validity means:


1.
whether or not the testator was of
sound mind when he executed the will
2.
whether or not he is 18 years or above

ANTE MORTEM PROBATE means a probate


done during the lifetime of the testator

POST MORTEM PROBATE means a probate


done after the death of the testator
2 aspects of POST MORTEM PROBATE:
1.
PROBATE PROPER is only concerned
on the due execution of the will and the
testamentary capacity of the testator
2.
DETERMINATION OF THE LEGALITY OF
THE PROVISION AND THE DISTRIBUTION OF THE
ESTATE.
GENERAL RULE: During probate proper, the probate
court HAS NO JURISDICTION to entertain other issues
except on issues on whether or not the will was duly
probated in compliance with the formalities required
by law and whether or not the testator has
testamentary capacity at the time he executed the
will
EXCEPTION:
Summary on issues that may be
passed upon by the probate court (intrinsic validity):
1. Ownership
a. when the testator has disposed of
property which is not his; or
b. whether or not a certain property is
included in the estate.
2. Filiation
a. whether or not the oppositor has
personality to intervene; or
b. whether or not the will has been
revoked
3. Whether or not there was preterition
But decisions of the court pertaining to
these questions are only provisional.
Matters that may be passed upon by the
probate court:
1) Questions of identity
2) Due Execution
3) Question as to the testamentary capacity
PROBATE OF
HOLOGRAPHIC WILL
In the probate of
holographic wills, if there
is no contest, it is enough
that at least 1 witness
explicitly declares that
the
will
is
in
the
handwriting
and
signature of the testator.
When
the
will
is
contested, there must be
at least 3 of witnesses.
In the absence of such
witnesses,
expert
testimony
may
be
resorted to or even if
there is no contest, still
expert testimony may be
resorted to.

PROBATE OF
NOTARIAL WILL
In the probate of
notarial wills, when there
is no contest, at least 1
subscribing
witness
should testify as to the
execution of the will.
When
there
it
is
contested, ALL of the
subscribing
witnesses
plus the notary public
must testify. If all of the
subscribing
witnesses
and the notary public are:
1.dead;
2.insane; or
3.they are all absent in
the Philippines or
4.testify against the due
execution of the will; or
5.they do not remember
having
attested
the
execution of the will; or
6.they are of doubtful
credibility
then, other witnesses
may be resorted to.

LOST/DESTROYED
HOLOGRAPHIC WILL
When it comes to a

LOST/DESTROYED
NOTARIAL WILL
In notarial wills, even if

3.

whether or not the will complied with


the formalities under Articles 804-809 with
respect to notarial will
4.
whether or not the will is entirely
written, dated and signed in the handwriting of
the testator with respect to holographic will

The rule on ESTOPPEL and the STATUTE OF


LIMITATION do not apply in probate

Probate is MANDATORY

Extrajudicial Settlement is NOT allowed when


there is a will

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

holographic will, there


must be a photocopy or
carbon
copy
of
the
holographic will. If there
is no copy of the
holographic will, even if
the reason why the
holographic will was lost
or destroyed was due to
the act of another person
without intent to revoke
on the part of the
testator still, no probate
of the holographic will
may be allowed because
there is no copy.

there is no copy, the


notarial will may be
probated because the
contents of a notarial will
may be proved by the
testimonies of at least 2
witnesses to clearly and
distinctly
proved
the
contents of the notarial
will.
NB: As long as there is no
animus revocandi on the
part of the testator.

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

These grounds are exclusive.


However,
despite the exclusivity given, it seems that there
are other grounds which are minority, revocation
and forgery.
1st ground:

In case of notarial wills, formalities under


Articles 804-809

2nd

ARTICLE 840. Institution of heir is an act by virtue of


which a testator designates in his will the person or persons
who are to succeed him in his property and transmissible
rights and obligations. (n)

entirely written, signed and dated in


the handwriting of the testator
b.
in the language known to the testator
c.
must be executed at the time when
holographic wills are allowed
ground:
This ground refers to the soundness of
mind of the testator at the time of execution of the
will
ground:

Requisites for an institution to be valid:


1. The will must be extrinsically valid

2.
3.

5th

th

Fraud is the use of insidious words or


machinations to convince a person to do what
ordinarily he would not have done.

There is an intent to make a will


ground:

The testator is acting because of his


mistake and the testator has no intent to make a
will

There is no intent to make a will

REVOCATION
A voluntary act of the
testator.
May be with or without
cause.
May be partial or total.

DISALLOWANCE
Given by judicial order
Must always be for legal a
cause.
Always total.

A will is valid even though it does not contain an


institution of an heir
Such institution should not comprise the entire
estate
Even though the person so instituted should not
accept the inheritance or should be incapacitated
to succeed

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

This connotes the idea of coercion, mental


or physical
4th ground:
Undue Influence connotes the idea of
coercion by virtue of which the judgment of the
testator is displaced, and he is induced to do that
which he otherwise would not have done.
ground:

The institution must be intrinsically valid


The institution must be effective

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

Institution refers to the free portion

Characteristics of an instituted heir?


1. The instituted heir constitutes the relation of the
personality, to continue the personality of the
testator but only in relation to the inheritance without
being personally liable for the death of the testator.
2. The instituted heir acquires the right limited to
the disposable portion and he cannot impair the
legitime.

In case of holographic wills it must be:

a.

3rd

SECTION 2
Institution of Heir

This article is called the freedom of disposition


But this freedom of disposition is not absolute
because when there are compulsory heirs, the
testator has to observe the portion pertaining to
the compulsory heirs

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

The best way to designate the heir is by name or


surname
Even if the name is omitted, the designation is
still valid as long as such person can be identified
If there are 2 or more 2 persons instituted and
they have the same name or corresponds to the
same description, Article 789 can be applied:
ARTICLE 789. When there is an imperfect
description, or when no person or property
exactly answers the description, mistakes
and omissions must be corrected, if the
error appears from the context of the will or
from extrinsic evidence, excluding the oral

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

declarations of the testator as to his intention;


and when an uncertainty arises upon the face
of the will, as to the application of any of its
provisions, the testator's intention is to be
ascertained from the words of the will, taking
into consideration the circumstances under
which it was made, excluding such oral
declarations. (n)

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

Article 843 mentions


mentions errors.

Errors in the name, surname or circumstances


would not matter as long as ultimately the court
can identify who are really the heirs intended by
the testator
Any manner maybe resorted to determine the
person instituted except oral declaration made by
the testator

omissions.

Article

844

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

An unknown person is one that cannot be


identified. He is not necessarily a stranger

A disposition in favor of an unknown person who


cannot be identified cannot be given effect

ARTICLE 846.
Heirs instituted without
shares shall inherit in equal parts. (765)

designation

of

Article 846 refers to PRINCIPLE OF EQUALITY


It is presumed that the testator intended to give
equal shares to the heirs instituted. Otherwise, he
would have specifically mentioned the shares of the
heirs had he intended that each heir shall get
different portion or unequal portions

GENERAL RULE: Heirs instituted without designation of


shares shall inherit in equal parts.
EXCEPTION: Article 846 cannot apply when there are
compulsory heirs.
ARTICLE 847.
When the testator institutes some heirs
individually and others collectively as when he says, "I
designate as my heirs A and B, and the children of C," those
collectively designated shall be considered as individually
instituted, unless it clearly appears that the intention of the
testator was otherwise. (769a)

This article refers to the PRINCIPLE OF


INDIVIDUALITY
As long as the intention to have the estate
collectively distributed does not appear in the will,
the presumption is individual institution
When there are compulsory heirs, you have to first
satisfy the portion pertaining to the legitime of the
compulsory heirs.
INSTITUTION refers to FREE PORTION

ARTICLE 848.
If the testator should institute his brothers
and sisters, and he has some of full blood and others of half
blood, the inheritance shall be distributed equally unless a
different intention appears. (770a)

Remember that brothers and sisters are not


compulsory heirs although they are legal heirs
When the testator institutes his brothers and
sisters whether or full blood or half blood they are
deemed to have been instituted equally

INTESTATE
SUCCESSION
The
shares
of
the
brothers or sisters of the
full blood, is twice as
much as those of the half
blood. So here there is a
presumption
that the
affection of the testator
for the brothers and
sisters of the full blood is
greater than those of the
half blood

TESTATE SUCCESSION
There
is
NO
presumption.

such

ARTICLE 849.
When the testator calls to the succession
a person and his children they are all deemed to have been
instituted simultaneously and not successively. (771)

This article is known as the PRINCIPLE OF


SIMULTANEITY

There is only a presumption. There is nothing


which can prevent the testator from providing in
his will that the institution shall be successive and
not simultaneous.

ARTICLE 850.
The statement of a false cause for the
institution of an heir shall be considered as not written,
unless it appears from the will that the testator would not
have made such institution if he had known the falsity of
such cause. (767a)

GENERAL RULE: The statement of a false cause for


the institution of an heir shall not vitiate the
institution.
The false cause shall always be
considered as not written.
The law presumes that in giving a legacy or
devise or inheritance, the real motivation or the real
cause is the liberality or generosity of the testator not
he false cause.
EXCEPTION: Unless it appears from the will that the
testator would not have made such institution if he
had known the falsity of such cause.

According to some authorities in succession, the


statement of Illegal cause for the institution will
not invalidate the institution. The illegal cause is
deemed not written.

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

Aliquot part means a fraction


interest

Article 851 should be applied when there is NO


INTENTION on the part of the testator to give the
remaining part of the estate. So, only the specific
portions mentioned.

or undivided

ARTICLE 852.
If it was the intention of the testator that
the instituted heirs should become sole heirs to the whole
estate, or the whole free portion, as the case may be, and
each of them has been instituted to an aliquot part of the
inheritance and their aliquot parts together do not cover the
whole inheritance, or the whole free portion, each part shall
be increased proportionally. (n)

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

In Article 852, the intention of the testator is to give


the entire estate to the instituted heir or heirs but
the shares given to the instituted heirs when added
do not comprise the entirety of the estate

Problem1
Q: A, B and C are instituted as heirs: A = 1/4, B = 1/4 and C =
1/4. The testator says that he is giving the entire estate to A, B
and C. The estate is worth P120,000. Does the institution
comprise the entire estate? No, because the institution only
amounts to 3/4. How do we divide the estate among A, B and
C?
A: A = P30,000
B = P30,000
C = P30,000
------------P90,000
P120,000 - 90,000 = P30,000
P30,000 / 3 = P10,000
Total share of:
A = P30,000 + 10,000 = P40,000
B = P30,000 + 10,000 = P40,000
C = P30,000 + 10,000 = P40,000
-----------P120,000
Problem2
Q: A = 1/6, B = 1/8, C = 2/3. The estate is worth P120,000.
A: A = (P120,000 / 6) * 1 = P20,000
B = (P120,000 / 8) * 1 = P15,000
C = (P120,000 / 3) * 2 = P80,000
------------P115,000
A = (20,000 / 115,000) * 5,000 = P 869.565
B = (15,000 / 115,000) * 5,000 = P 652.179
C = (80,000 / 115,000) * 5,000 = P3,478.826
---------------P5,000.00
Total share of:
A = P20,000 + 869.565 = P20,869.565
B = P15,000 + 652.179 = P15,652.179
C = P80,000 + 3,478.862 = P83,478.862
-----------------P120,000.00
ARTICLE 853.
If each of the instituted heirs has been given
an aliquot part of the inheritance, and the parts together
exceed the whole inheritance, or the whole free portion, as the
case may be, each part shall be reduced proportionally. (n)

Article 853 is the reverse of Article 852

Problem1
Q: A =1/4, B = 1/8, C = 2/3. The estate is worth P120,000.
A: A = 1/4 * P120,000 = P30,000
B = 1/8 * P120,000 = P15,000
C = 2/3 * P120,000 = P80,000
-----------P125,000

If the omitted compulsory heirs should die before the


testator, the institution shall be effectual, without prejudice
to the right of representation. (814a)

Requisites of Preterition
1. The omission from the inheritance must be total
or complete

No preterition in the following situations:


a. If the compulsory heir is given a
devise or a legacy, he is not
considered preterited even if the
legacy or devise is worth less than
the legitime of the compulsory heirs.
b. If the estate is worth P100T but the
testator says, I hereby institute my
heir to one-half of my estate. That is
the only provision in the will. For
example, A is a son, an heir. There is
no preterition even if A is not
mentioned because something is
being left for A in the inheritance.
c. As long as there is still a balance after
all the provisions in the will have
been given effect, there are still
undisposed properties which the
omitted compulsory heir may partake
so there is no preterition.
2. The omission must be the compulsory heir in the
direct line

Compulsory heirs:
1. The children whether legitimate
or illegitimate
2. The parents in the absence of the
children

A spouse is a compulsory
heir but NOT in the direct line

By fiction of law, an
adopted child is a compulsory heir in
the direct line
3. The omitted compulsory heir must survive the
testator.

If the omitted heir died ahead of the testator,


there is no preterition because by reason of his
early death, he is deemed not to have inherited
from the testator

However, the omitted compulsory heir dies ahead


and he has children who can represent him.
There
is
representation
wherein
the
representative is exalted to the position of the
one they are representing. In this case, there is
preterition.
If there was a donation given to the compulsory
heir during the lifetime of the testator, and such
heir is omitted from the will, there is no
preterition because he is not omitted from the
inheritance. There must be omission from the
inheritance, not merely from the will.

A = (P30,000 / 125,000) * 5,000 = P1,200


B = (P15,000 / 125,000) * 5,000 = P600
C = (P80,000 / 125,000) * 5,000 = P3,200
Total share of:
A = P30,000 - 1,200 = P28,800
B = P15,000 - 600 = P14,400
C = P80,000 - 3,200 = P76,800
------------P120,000
ARTICLE 854.
The preterition or omission of one, some, or
all of the compulsory heirs in the direct line, whether living at
the time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious.

PRETERITION is the total omission generally due


to mistake or oversight by the testator in his will
of one, some or all of the compulsory heirs in the
direct line living at the time of the testators
death.
The omission may be voluntary or involuntary

The donations made to compulsory heirs during


the lifetime of the testator, upon the death of the
testator, the values of these donations are
brought back to the value of the estate through
collation.

Effects of Preterition
1. It shall annul the institution of heir (Article
854)

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

2.

The legacy or devise shall be valid in so far as


they are not inofficious (do not impair the
legitime).

ARTICLE 855.
The share of a child or descendant omitted
in a will must first be taken from the part of the estate not
disposed of by the will, if any; if that is not sufficient, so much
as may be necessary must be taken proportionally from the
shares of the other compulsory heirs. (1080a)

Article 855 talks about the share of a child or


descendant omitted in the will.

This article can also be applied when what is at


hand is merely an impairment of the legitime, so,
you just have to complete the legitime.

Article 855 talks only of the legitime.


concern of the Free Portion.

It has no

ARTICLE 856.
A voluntary heir who dies before the testator
transmits nothing to his heirs.
A compulsory heir who dies before the testator, a person
incapacitated to succeed, and one who renounces the
inheritance, shall transmit no right to his own heirs except in
cases expressly provided for in this Code. (766a)

The term voluntary heir here covers


also legacies or devises. So, if a legacy or devise is
given, it transmits nothing to the heir of the
voluntary heir if the voluntary heir dies before the
testator
GENERAL RULE: If a compulsory heir is predeceases,
is incapacitated or renounces or repudiates the
inheritance, he transmits nothing to his own heirs.
EXCEPTION : Right of Representation

This article speaks of an heir who


predeceased the testator, incapacity and one who
renounces the inheritance. But this article applies
by analogy to DISINHERITANCE. A compulsory heir
who is disinherited shall transmit no right to his
own heirs except when there is Right of
Representation.
SECTION 3
Substitution of Heirs
ARTICLE 857.
Substitution is the appointment of another
heir so that he may enter into the inheritance in default of the
heir originally instituted. (n)

Article 857 speaks of substitution where there is


appointment of another heir in default of another
heir instituted. If the first heir cannot inherit for
reasons provided for by law, then the testator may
appoint a substitute in place of the original heir.
The substitute will instead get the inheritance
which should have pertained to the original heir

In substitution, there are also instances wherein


both heirs, the original heir and the substitute
inherit. That is covered by the case of what we call
the FIDEICOMMISSARY SUBSTITUTION

As such, substitution is the appointment of


another heir so that he may enter into the
inheritance in default of the heir originally
instituted or AFTER SUCH HEIR either one after the
other or all at the same time.

2 Concepts of Substitution:
1. Direct Substitution only one inherits. If the
original heir defaults, then the substitutes
inherit. (Article 857)
2. Indirect Substitution the inheritance is
assumed by 2 heirs. So, one inherits after the

other. (Fideicommissary substitution Article


863)
Purposes of substitution
1.
To avoid intestate succession
2.
To prevent the descent of the estate
of the testator to whom the testator does not
want to succeed him in his property whether by
right of representation, or by right of accretion or
by right of intestate succession
3.
To allow the testator greater freedom
to help or reward those who by reasons of
services rendered are more worthy of his
affection and deserving of his bounty than
intestate heirs
4.
To enable the testator to make
arrangements for his succession in the manner
most convenient for him
5.
To realize some honorable purpose of
the testator like the maintenance of the property
within his property because in substitution, the
testator to some extent may preserve the
property within the confines of his own
immediate family and prevent the estate from
descending to the other legal heirs like the
brothers or sisters

You can have a substitute for a legatee or


devisee because Article 857 applies to the free
portion and not to the legitime

ARTICLE 858.
Substitution of heirs may be:
(1)
Simple or common;
(2)
Brief or compendious;
(3)
Reciprocal; or
(4)
Fideicommissary. (n)

Simple or Common - Article 859


Brief or Compendious Article 860
Reciprocal Article 861
Fideicommissary Article 863

ARTICLE 859.
The testator may designate one or more
persons to substitute the heir or heirs instituted in case such
heir or heirs should die before him, or should not wish, or
should be incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases
to which it refers, shall comprise the three mentioned in the
preceding paragraph, unless the testator has otherwise
provided. (774)

The substitute inherits from testator, not from the


person substituted

Under Article 859, if the original heir dies ahead


of the testator or renounces the inheritance or
becomes incapacitated then the substitution shall
be effective even if the disposition is silent as to
the cause of the substitution.

Unless the testator has otherwise provide :


thus, the testator here is not precluded from
providing other causes other than predecease,
incapacity and renunciation

But if the disposition is silent, then it is presumed


that the 3 causes mentioned under Article 859
are the ones being referred to by the testator

Substitution must be EXPRESSLY provided by the


testator.
No presumption that there is
substitution.

Article 860. Two or more persons may be substituted for


one, and one person for two or more heirs.

Article 860 talks about Brief or Compendious


Substitution

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

BRIEF SUBSTITUTION is when 2 or more persons


may be substituted for one heir (plurality of
substitutes)

COMPENDIOUS SUBSTITUTION is when 2 or


more heirs are instituted and one is appointed as
substitute for all heirs originally instituted. (plurality
of persons substituted)

But in compendious substitution, the substitute is


for ALL the heirs. The substitute inherits if all the
heirs die ahead of the testator, renounces the
inheritance or becomes incapacitated.

If only one dies, renounces or is incapacitated, the


concept of accretion is applied unless there are
representatives

ARTICLE 861.
If heirs instituted in unequal shares should
be reciprocally substituted, the substitute shall acquire the
share of the heir who dies, renounces, or is incapacitated,
unless it clearly appears that the intention of the testator was
otherwise. If there are more than one substitute, they shall
have the same share in the substitution as in the institution.
(779a)

Article 861 refers to Reciprocal Substitution


where all the heirs are constituted as the
substitutes of one another.
Example 1: If the share of A is P 30,000 and the
share of B is P 10,000, if A dies ahead of the
testator, B will get As share even if As share is
greater than B, unless the testator EXPRESSLY
provides that the substitution of B to the share of A
is only to the extent of the inheritance by B.

Fideicommissary substitution is an indirect


substitution, where both heirs inherit one after
the other

Example of a fideicommissary substitution:


The testator has 2 heirs A and B. A first
succeeds to the property, first acquired or enjoyed
the property. But the enjoyment of A is subject to the
condition that he should preserve the property and
later on, upon conditions given by the testator, either
upon death or repudiation or upon certain period, A
will now transmit the property to B, the second heir.
Both A and B enjoy the property. Although A here
merely enjoy uses of the property, he is like a
usufructuary because he cannot own the property
because of his obligation to transmit the property to
B. Aside from enjoying the property, B also owns the
property with all the rights pertaining to an owner.
Because of the obligation of A to preserve and
transmit, A:
1. cannot absolutely alienate the property inter
vivos or mortis causa
2. cannot make a will providing that the
properties is given to another person
Requisites of fideicommissary substitution:
1.
The fideicommissary substitution
must be expressly made
How?
a. By providing the name of the
fideicommissary substitute or that
this is a fideicommissary substitution
b. By providing the obligation to
preserve and obligation to transmit
2.
There must be a first heir (fiduciary,
fiduciaro, heredero or trustee)

Example 2: If there are more than 2 persons


instituted where the estate is P 300,000 and the
heirs are A, B and C. As share is P 100,000, Bs
share is P 50,000 and Cs share is P 150,000. If A
dies ahead of the testator, B and C shall have the
same share in substitution as in the institution.
Institution
Substitution
Total
A
(100T)
B
P 50T 50/200 * 100T = P 25T
P
75T
C
P150T 150/200 * 100T = P 75T
P 225T

A trustee or a trust has


no right to enjoy the
property

ARTICLE 862.
The substitute shall be subject to the same
charges and conditions imposed upon the instituted heir,
unless the testator has expressly provided the contrary, or the
charges or conditions are personally applicable only to the heir
instituted. (780)

USUFRUCTUARY
Required to furnish a bond

GENERAL RULE: The substitute shall be subject to the


same charges and conditions imposed upon the
instituted heir.
EXCEPTIONS:
1. When the testator has expressly provided the
contrary
2. When the charges or conditions are only
personally applicable to the person instituted

The first heir must have the


capacity to inherit and has the obligation to
preserve and transmit the estate in whole or
in part
TRUSTEE (TRUST)

Not entitled to refund.

Simple
substitution,
brief
or
compendious
substitution and reciprocal substitution are
examples of direct substitution, where the
substitute inherits in default of the heir originally
instituted. Their enjoyment of the property is in the
alternative.

FIDUCIARY
The fiduciary is not
required to furnish a
bond or security.
Entitled to refund for
expenses and for the
increase in the value of
the property by reason
of its improvements

3.

There must be a second heir


(fideicommissary or fideicomisario or beneficiary
or cestui que trust)

ARTICLE 863.
A fideicommissary substitution by virtue
of which the fiduciary or first heir instituted is entrusted with
the obligation to preserve and to transmit to a second heir the
whole or part of the inheritance, shall be valid and shall take
effect, provided such substitution does not go beyond one
degree from the heir originally instituted, and provided
further, that the fiduciary or first heir and the second heir are
living at the time of the death of the testator. (781a)

FIDUCIARY (FIRST
HEIR)
A fiduciary, although he
has
the
obligation
pertaining to a trustee in
a trust, he can enjoy the
property

The second heir receives the property


from the first heir but the 2nd heir actually
inherits from the testator, not from the first
heir

The 2nd heir must be capacitated to


inherit from the testator. He must not die
ahead of the testator, must not be unworthy,
and must not repudiate the inheritance from
the testator.
4.

The second heir must not be beyond one


degree from the first heir or the heir
originally instituted

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

2 views as to what one degree means:


a.
Some authorities before interpreted
one degree as one transfer.
b.
Later on, it was clarified that
degree means generation. One degree means
one generation apart. The 1st heir and the 2nd
heir must not be beyond one degree or one
generation apart. You count one generation
from the first heir not from the testator. The 2 nd
heir must either be child or a parent of the first
heir.

There is only fideicommissary substitution


in natural persons

There
can
be
no
fideicommissary
substitution in juridical persons because there
is no generation to speak of when it comes to
juridical persons
5. Both of the 1st heir and the 2nd heir must be
living at the time of the death of the testator
or at least conceived.
ARTICLE 41 NEW CIVIL CODE.
For
civil
purposes, the foetus is considered born if it is alive
at the time it is completely delivered from the
mother's womb. However, if the foetus had an
intra-uterine life of less than seven months, it is
not deemed born if it dies within twenty-four hours
after its complete delivery from the maternal
womb. (30a)

ARTICLE 864.
A fideicommissary substitution can never
burden the legitime. (782a)

Legitime is imposed by law so the testator cannot


deprive his heirs of their legitime and he cannot
circumvent the law on legitime by imposing
conditions, charges, burdens and substitutions
upon the legitime

The rights of the compulsory heirs to their legitime


are absolute except when there is a cause for
disinheritance
The fideicommissary substitution is only limited to
the free portion

ARTICLE 865.
Every fideicommissary substitution must be
expressly made in order that it may be valid.
The fiduciary shall be obliged to deliver the inheritance to
the second heir, without other deductions than those which
arise from legitimate expenses, credits and improvements,
save in the case where the testator has provided otherwise.
(783)

Obligations of the fiduciary:


1. to preserve the property
2. to deliver the property to the 2nd heir

he should die before the fiduciary. The right of the second


heir shall pass to his heirs. (784)

As long as the first heir and the second heir did


not predecease the testator, then, their rights
become vested upon the death of the testator

Whether the 2nd heir dies ahead or after the 1 st


heir, this would not defeat the right of the 2 nd heir
to inherit.

If the 2nd heir dies ahead of the 1st heir, his rights
shall pass to his own heirs

The second heir can sell the property even if he


still cannot enjoy the property because the
usufruct still belongs to the 1st heir. This is
because the second heir acquired his title as
naked owner upon the death of the testator. But
the buyer is also subject to the right of the first
heir to enjoy the property.

ARTICLE 867.
The following shall not take effect:
(1) Fideicommissary substitutions which are not made in an
express manner, either by giving them this name, or
imposing upon the fiduciary the absolute obligation to
deliver the property to a second heir;
(2) Provisions which contain a perpetual prohibition to
alienate, and even a temporary one, beyond the limit fixed
in Article 863;
(3) Those which impose upon the heir the charge of paying
to various persons successively, beyond the limit prescribed
in Article 863, a certain income or pension;
(4) Those which leave to a person the whole or part of the
hereditary property in order that he may apply or invest the
same according to secret instructions communicated to him
by the testator. (785a)

(1) Fideicommissary substitutions which are not


made in an express manner, either by giving
them this name, or imposing upon the fiduciary
the absolute obligation to deliver the property to
a second heir

(2) Provisions which contain a perpetual prohibition


to alienate, and even a temporary one, beyond
the limit fixed in article 863

Any perpetual prohibition on the fiduciary to


alienate the property is just okay because in
the first place he is prohibited from alienating
the property

If only for a period example 10 years, he is


prohibited from disposing the property for 10
years but after 10 years he can alienate BUT
ONLY to the 2ND HEIR

If the testator says in his will that he is


prohibiting his heirs from alienating the
property forever, it is void insofar as it
exceeds the 20th year. If it is up to 100 years,
it is valid only up to 20 years.
Prohibition to alienate is only up to the first
degree

3.

If the institution is SILENT as to the date


when the delivery should be made, it should be
MADE AT THE TIME OF DEATH OF THE
FIDUCIARY or 1ST HEIR. If there is a period
stated by the testator, then, that period should
be followed.
to make an inventory of the property

Deductions the fiduciary can make out of the


property:
1. legitimate expenses
2. credits
3. improvements
ARTICLE 866.
The second heir shall acquire a right to the
succession from the time of the testator's death, even though

The fideicommissary substitution must be an


obligation. If it is just a suggestion or an
advice, then that is not fideicommissary
substitution. When we say obligation, the heir
has no choice but to comply.

(3) Those which impose upon the heir the charge of


paying to various persons successively, beyond
the limit prescribed in Article 863, a certain
income or pension

The successive payments shall only be


limited to those heirs one degree from the
first heir
This paragraph applies if the obligation to pay
is successive, not simultaneous

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

(4) Those which leave to a person the whole or part of


the hereditary property in order that he may apply
or invest the same according to secret instructions
communicated to him by the testator

This is not allowed because we do not know


what were the instructions made by the
testator to such person
ARTICLE 868.
The
nullity
of
the
fideicommissary
substitution does not prejudice the validity of the institution of
the heirs first designated; the fideicommissary clause shall
simply be considered as not written. (786)

If the fideicommissary substitution is not valid


because the obligation to preserve and transmit
were not expressly made or because the second
heir dies ahead of the testator, there is no more
fideicommissary substitution. The first heir will still
get the property. It becomes a simple substitution.
ARTICLE 869.
A provision whereby the testator leaves to a
person the whole or part of the inheritance, and to another the
usufruct, shall be valid. If he gives the usufruct to various
persons, not simultaneously, but successively, the provisions
of article 863 shall apply. (787a)

If the testator gives the usufruct to A and the naked


ownership to B, this is valid
If the testator gives the naked ownership to A and
to B and C the usufruct, remember in Property that
the usufruct in favor of as many persons who will
claim successively is not allowed
If the testator gives to A the naked ownership and
the usufruct to B and when B dies, C will succeed B
to the usufruct and if C dies, D will succeed to the
usufruct, then, the transfer from B to C is valid. But
C to D is no longer valid because it is beyond the
limit under Article 863. If B, C and D are just
friends, from B to C and C to D, all are not valid
because are not one degree.
If he gives the usufruct to various persons
successively, then, it will partake the nature of a
fideicommissary substitution.
The heirs will be
bound by the provisions of Article 863 insofar as
the degree is concerned.
The first person who enjoys the usufruct and the
second person enjoying the usufruct should not be
beyond one degree, if we are talking of successive
enjoyment of property.
If it is simultaneous, we do not have to observe the
rules on fideicommissary substitution

ARTICLE 870. The dispositions of the testator declaring all


or part of the estate inalienable for more than twenty years
are void. (n)

Article 870 provides the period within


which the testator may limit the disposition of his
property which is only up to 20 years only.
If 20 years valid.
If MORE than 20 years, what is void is merely
the excess.

If the prohibition is silent, it is considered as 20


years. The same is true if the prohibition is
forever.

SECTION 4
Conditional Testamentary Dispositions and
Testamentary Dispositions With a Term
ARTICLE 871.
The institution of an heir may be made
conditionally, or for a certain purpose or cause. (790a)

There is no need of institution in the case of


legitime because regardless of the intention of the

testator, the compulsory heirs are entitled to


their legitimes
Institution refers to the free portion

4 Kinds of Institution:
1.
Simple or Pure Institution It is an
institution that takes immediately after the death
of the testator. It is absolute and not subject to
any condition, charge or burden.
2.
Conditional Institution It is an
institution which is subject to a condition. There
are different kinds of condition, e.g. as to cause,
as to effect, as to mode. Conditional institution
can be found in Articles 871-877 and Articles 883884
3.
Institution with a Term It is an
institution that which is subject to a term which
must necessarily come, although not known
when. An example is when the testator institutes
A as an heir but A will only receive the
inheritance 5 years after the death of the
testator. It is sure that A will receive the
inheritance but only upon the death of the
testator.
4.
Modal Institution It is an institution
that which for a certain purpose or cause or that
which is provided under Articles 882 and 883.

CONDITION in Obligations and Contracts is a


future or uncertain event or a past event
unknown to the parties

CONDITION in Succession is a future or uncertain


event or a past event unknown to the parties
upon which the acquisition or extinguishment of a
right under a testamentary disposition is made
subject
The condition must be express

A TERM is a day or time which necessarily comes


although it may not be known when

Kinds of Condition:
1. As to Cause
a.
Potestative
Condition
the
fulfillment depends exclusively upon the will
of the heir, devisee or legatee.
b.
Casual Condition - depends upon
chance or the will of a third person
c.
Mixed Condition - depends partly
upon the will of the heir and partly upon
chance or the will of a third person.
2. As to Effect
a.
Suspensive
Condition
the
happening of which gives rise to the
inheritance
b.
Resolutory
Condition
the
happening of which extinguishes the right to
the inheritance.
3. As to Mode
a.
Positive
Condition
to
do
something that would happen.
b.
Negative
Condition
to
do
something that will not happen or that should
not be done.
4.

As to Form
a. Express Condition
b. Implied Condition

ARTICLE 872.
The testator cannot impose any charge,
condition, or substitution whatsoever upon the legitimes
prescribed in this Code. Should he do so, the same shall be
considered as not imposed. (813a)

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

The legitime should not be impaired


There is only one prohibition which can be imposed
upon the legitime and that is, the testator can
validly provide that the legitime should not be
partitioned/divided for a period not exceeding 20
years.
Although it is not really considered an
impairment because the properties are still
properties of the compulsory heirs although they
shall not divide the properties for more than 20
years.

ARTICLE 873.
Impossible conditions and those contrary to
law or good customs shall be considered as not imposed and
shall in no manner prejudice the heir, even if the testator
should otherwise provide. (792a)

Article 873 talks of impossible conditions imposed


in the institution of heirs

In succession, when there is an impossible or illegal


condition then, the institution is still valid. Just
disregard the impossible or illegal condition. This is
because in succession, the underlying reason for
the institution is the liberality of the testator and
not really the illegal or impossible condition.
The legality or illegality of the condition is to be
determined at the time when the condition is to be
performed

ARTICLE 874.
An absolute condition not to contract a first
or subsequent marriage shall be considered as not written
unless such condition has been imposed on the widow or
widower by the deceased spouse, or by the latter's ascendants
or descendants.
Nevertheless, the right of usufruct, or an allowance or
some personal prestation may be devised or bequeathed to
any person for the time during which he or she should remain
unmarried or in widowhood. (793a)

Article 874 refers to the prohibition to marry or


remarry

RELATIVE PROHIBITION is allowed. But if this


would amount to an absolute prohibition like to
marry for 60 years then it is not allowed. An
example is prohibition to marry or re-marry a
particular person or prohibited to marry a particular
time

ABSOLUTE PROHIBITION is not allowed.


An
example is prohibition to marry or re-marry
anybody or prohibited to marry at all
The effect of an absolute prohibition is that it will
be considered as not written and shall be
disregarded

Exceptions to Absolute Prohibition


a.
When the condition is imposed
upon the spouse by a deceased spouse
b.
If imposed by the ascendants or
descendants of a deceased spouse to the spouse of
a deceased spouse

Even if it is the deceased spouse who provides for


the prohibition, that prohibition will not apply to the
legitime of the spouse. Only that which pertains to
her as a voluntary heir (free portion) is forfeited

In the 1st paragraph of Article 874, the property is


not yet enjoyed. In the 2nd paragraph, there is
already the right of usufruct or allowance or some
personal prestation. That is allowed but it is only
limited to usufruct, allowance or personal
prestation. If it is not among these 3, it is not
considered as a valid prohibition.

ARTICLE 875.
Any disposition made upon the condition
that the heir shall make some provision in his will in favor of
the testator or of any other person shall be void. (794a)

Article 875 is
CAPTATORIA

Disposition Captatoria is when the testator in


his will institutes A as his heir provided that A will
also give the testator a certain property or give to
the son of the testator certain property

It is prohibited the controlling motive or the main


consideration in succession is the liberality of the
testator. If you make that kind of provision, then
you are making testamentary privilege as a
contractual privilege. You are turning your will
into a contract.
Both the institution and the condition are VOID
If it is a Deed of Donation, there is no disposition
captatoria since the law refers to a will

what

we

call

DISPOSITION

ARTICLE 876.
Any purely potestative condition imposed
upon an heir must be fulfilled by him as soon as he learns of
the testator's death.
This rule shall not apply when the condition, already
complied with, cannot be fulfilled again.

POTESTATIVE CONDITION is the condition the


fulfillment of which depends upon the sole will of
the debtor (in obligations and contracts) or of the
heir (succession)

Potestative Condition
in Obligations and
Contract
Valid
But when it is
suspensive at the same
time on the part of the
debtor, it is not valid.
This means that the
obligation will arise if
subject to a condition
which is to be fulfilled by
the debtor. That is what
is
potestative
and
suspensive. It is not valid
because naturally the
debtor would not fulfill
the condition because if
the condition is fulfilled
then he is obliged already
because he is the debtor

Potestative Condition
in Succession
Valid because the heir is
naturally interested in
fulfilling the condition.
So even if potestative
and
suspensive,
the
condition is still valid.

The potestative condition is to be complied with


as soon as the heir learns of the testators death
because since the will is revocable during the
lifetime of the testator, it would be useless for the
heir to comply with the condition knowing that it
may be revoked by the testator anytime

Only substantial compliance is required because


it is presumed that by imposing a purely
potestative condition the testator trusted the
heirs enough to comply with the condition

As a general rule, if already complied with by the


heir, it must be complied with again unless it is of
such a nature that it cannot be complied with
again

ARTICLE 877.
If the condition is casual or mixed, it shall
be sufficient if it happen or be fulfilled at any time before or
after the death of the testator, unless he has provided
otherwise.
Should it have existed or should it have been fulfilled at
the time the will was executed and the testator was
unaware thereof, it shall be deemed as complied with.
If he had knowledge thereof, the condition shall be
considered fulfilled only when it is of such a nature that it
can no longer exist or be complied with again. (796)

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Article 877 talks about casual or mixed condition

MIXED CONDITION is a condition which depends


upon
1.
the will of the heir AND
upon chance; or
2.
the will of the heir AND
upon the will of a 3rd person

Example of a mixed and casual condition:


I
hereby give to A my jewelry provided that A will
bear a child

There must be actual or strict compliance because


by subordinating the condition upon chance, the
testator presumably did not trust the heir enough

CASUAL CONDITION is a condition which depends


upon chance and/or upon the will of a third person

ARTICLE 878.
A disposition with a suspensive term does
not prevent the instituted heir from acquiring his rights and
transmitting them to his heirs even before the arrival of the
term. (799a)

Article 878 talks about suspensive term

When the disposition is subject to a suspensive


term, it means that the heir is sure to inherit but
the demandability of the inheritance is just
suspended. The heir is not prevented from
acquiring his right when the institution is subject to
a suspensive term. The right of the instituted heir
becomes vested from the moment of the death of
the testator, although the enjoyment of the
property is just suspended. What is suspended is
just the demandability of the inheritance but his
right to demand becomes vested upon the moment
of death.

A term is a day certain which must necessarily


come although it may not be known when

In a suspensive condition, unless the condition is


fulfilled, the instituted heir acquires no right to the
inheritance.

In TERM, the rights will pass

When institution is subject to a condition, the


acquisition of rights must be determined AT THE
TIME OF THE FULFILLMENT OF THE CONDITION. So,
at the time of the fulfillment of the condition when
the heir is already dead then, there is no right to
speak of.
The testator can institute can heir subject to a
resolutory term because the law does not prohibit it

In CONDITION, until after the condition is fulfilled,


then the heir instituted has no right to demand.

ARTICLE 879.
If the potestative condition imposed upon
the heir is negative, or consists in not doing or not giving
something, he shall comply by giving a security that he will
not do or give that which has been prohibited by the testator,
and that in case of contravention he will return whatever he
may have received, together with its fruits and interests.
(800a)

If the heir contravenes the condition, the heir will


now return what he or she received by way of
inheritance and all the fruits and interest

When monthly allowance, monthly pension,


monthly income, usufruct or personal prestation
are given by way of inheritance and the heir is
prohibited from doing something, otherwise, he
shall forfeit the inheritance, there is no
requirement of giving a security. If the heir
contravenes the condition, the heir is not obliged
to return the fruits and interest because in this
example we apply by analogy Article 874 wherein
no security is required and the heir is not
required to return the fruits and interest.

ARTICLE 880.
If the heir be instituted under a suspensive
condition or term, the estate shall be placed under
administration until the condition is fulfilled, or until it
becomes certain that it cannot be fulfilled, or until the
arrival of the term.
The same shall be done if the heir does not give the
security required in the preceding article. (801a)

Article 880 refers to a situation wherein the


institution is subject to a suspensive condition
or term

When the institution is subject to a suspensive


term or a suspensive condition, the heir instituted
will NOT get the inheritance right away. The heir
instituted still will have to wait for the arrival of
the term or for the happening of the condition.
Pending the arrival of the term or the happening
of the condition, the property but shall be placed
under administration.

As to who will be selected as the administrator,


the provisions of the Rules of Court in Special
Proceedings must be complied with. Those who
are
preferred
in
the
appointment
as
administrators are also the legal heirs.

The property is also placed under administration


if is bond is not furnished

ARTICLE 881.
The appointment of the administrator of
the estate mentioned in the preceding article, as well as the
manner of the administration and the rights and obligations
of the administrator shall be governed by the Rules of Court.
(804a)

This article speaks for the appointment of


administrator, which are discussed in Special
Proceedings

Administrator is a person appointed by the


court to take care of the properties of the testator
who died without a will

Executor is the person provided by the testator


in his will who will take care of his properties
pending settlement of his estate

Article 879 talks of NEGATIVE POTESTATIVE


CONDITION, a condition that is purely dependent
upon the will of the heir, devisee or legatee which
consists of not doing or not giving something
Under this article, inheritance is immediately
demandable from the moment of death of the
testator

ARTICLE 882.
The statement of the object of the
institution, or the application of the property left by the
testator, or the charge imposed by him, shall not be
considered as a condition unless it appears that such was
his intention.
That which has been left in this manner may be claimed
at once provided that the instituted heir or his heirs give
security for compliance with the wishes of the testator and
for the return of anything he or they may receive, together
with its fruits and interests, if he or they should disregard
this obligation. (797a)

But, the heir or devisee must give a caucion


muciana

CAUCION MUCIANA is the security given by an


heir who is subject to a potestative condition which
is negative or who is subject to the condition which
consist in not doing or not giving something

Article 882 refers to MODAL INSTITUTION


(2001 Bar Question)

MODAL INSTITUTION is the institution wherein


the statement of the object of the institution, or
the application of the property left by the

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

testator, or the charge imposed by him, shall not be


considered as a condition unless it appears that
such was his intention.

If the heir does not comply with the object or the


attestation and the purpose of the institution, the
heir forfeits the inheritance

If the institution is subject to a mode, the heir


immediately enjoys the property

The heir is required to furnish a security so that he


will do what has been imposed by the testator

If there is doubt as to whether the institution is a


mode or condition, it is resolved in favor of a mode
because we have to consider that the real reason in
the institution is the liberality of the testator
According to Paras, if there is a doubt as to whether
it is a mode or a suggestion, it is considered as a
suggestion because it is less burdensome

MODE
This refers to:
a.
t
he object of the
institution;
b.
t
he application of
the property; and
c.
c
harge
Heir immediately enjoys
the property upon the
death of the testator,
provided he has furnished
security
It is obligatory upon the
instituted heir and so, he
has to comply with the
object of the institution or
the burden imposed by
the testator. The failure
to do so would result in
the forfeiture of the
inheritance
When you are in doubt,
treat the same as a mode
because when there is a
condition, the burden is
heavier. A mode merely
obligates but does not
suspend.

CONDITION
If it refers to other
things, you can say that
they are conditions.

Heirs do not enjoy the


property after the death
of the testator but only
upon the fulfillment of
the condition
It is not obligatory upon
the part of the heir
because the condition
may or may not happen

fulfilling
when a
so that
testator

ARTICLE 884.
Conditions imposed by the testator upon
the heirs shall be governed by the rules established for
conditional obligations in all matters not provided for by this
Section. (791a)

An example of the same rule on conditions


applied both to succession and obligations and
contracts is an institution subject to a resolutory
condition. Just like in obligations and contracts,
the heir immediately enjoys the property. But
upon the fulfillment of the resolutory condition
the heir ceases to enjoy the property. The
happening of the condition gives rise to the
extinguishment of the right to the inheritance

If there are specific provisions in succession


referring to conditions and these conditions are
not the same as in obligations and contracts, the
provisions in succession shall prevail

In succession, an impossible condition shall be


considered as not written and so, the institution
shall still be given effect.
In obligations and contracts, if the obligation is
subject to an impossible condition both the
condition and the obligation are annulled

ARTICLE 885.
The designation of the day or time when
the effects of the institution of an heir shall commence or
cease shall be valid.
In both cases, the legal heir shall be considered as
called to the succession until the arrival of the period or its
expiration. But in the first case he shall not enter into
possession of the property until after having given sufficient
security, with the intervention of the instituted heir. (805)

But if the condition


happens, the burden is
heavier
because
a
condition obligates AND
suspends.

ARTICLE 883.
When without the fault of the heir, an
institution referred to in the preceding article cannot take
effect in the exact manner stated by the testator, it shall be
complied with in a manner most analogous to and in
conformity with his wishes.
If the person interested in the condition should prevent its
fulfillment, without the fault of the heir, the condition shall be
deemed to have been complied with. (798a)

that other persons prevented him from


his obligation.
Example of constructive fulfillment is
third person cuts the hand of the heir
such heir cannot paint a portrait of the
anymore.

Article 883 talks about substantial compliance or


constructive fulfillment
Without the fault of the heir instituted, the
obligation cannot be fulfilled by the heir exactly in
the manner stated by the testator.
But as long as it is substantially in accordance with
the obligation imposed then the institution will take
effect.
Example of substantial compliance is when the heir
is obligated to paint a portrait of the testator but
the portrait is not an exact resemblance of the
testator.
Nevertheless, there is substantial
compliance.
Even if the obligation cannot be fulfilled with, still, it
is as if it is fulfilled by constructive fulfillment. The
instituted heir should not be prejudiced by the fact

This article talks about an institution subject


to either a suspensive term or resolutory
term

If it is subject to a suspensive term, the


demandability of the property inherited shall be
suspended until after the arrival of the term. If in
the meantime the instituted heir dies before the
arrival of the term, his rights shall pass on to his
own heirs because the heir already acquired
rights to the property from the moment of death
although the demandability is just postponed.

If the institution is subject to a resolutory


term, immediately after the death of the
testator, the heir enjoys the property and upon
arrival of the term the heir shall return the
property.
Instances wherein the legal heirs or the
instituted heirs are to give a security:
1. When the institution is subject to a
suspensive term, the legal heirs can enjoy the
property pending the arrival of the term
provided that the legal heirs shall give
security (Article 885);
2. In modal institution, the heir instituted
subject to a mode shall give security before
the heir can enjoy the property (Article 882);
and
3. When the institution is subject to a negative
potestative condition or consists in not doing
or not giving then the heir instituted must
also give a security which is called caucion
muciana (Article 879).

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

SECTION 5
Legitime

children, it is when the ascendants or parents


inherit. It is either the legitimate children or
descendants, parents or ascendants. They will
not concur.

Simpler Table of Legitime (from the book of


Paras)
Illegitimate Children 1/3
Surviving Spouses 1/3
Illegitimate children
Surviving Spouse 1/8
Legitimate Parents
Illegitimate Children
Legitimate Parents
Legitimate Parents
Surviving Spouse
Illegitimate Parents
Surviving Spouse
Illegitimate Child alone

Legitimate Parents alone

Illegitimate Parents
Surviving Spouse ,
1/3,
Legitimate Child alone

1 Legitimate Child
Surviving spouse
2 or more legitimate
children
Surviving spouse - same
as 1 legitimate child
Legitimate Child
Illegitimate child of
each legitimate child

ARTICLE 886.
Legitime is that part of the testator's
property which he cannot dispose of because the law has
reserved it for certain heirs who are, therefore, called
compulsory heirs. (806)

When it comes to foreigners, the intrinsic


validity of the will shall be governed by the national
law of the decedent. So, if in their country there is
no system of legitime, the will is still valid.

Philippines follows a system of legitime

The purpose of providing for legitimes is to


protect the compulsory heirs of the testator
because the testator by his passion, prejudice
might just omit his compulsory heirs.
ARTICLE 887.
The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to their
legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and
ascendants,
with respect to their legitimate children and
descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by
legal
fiction;
(5) Other illegitimate children referred to in article 287.
Compulsory heirs mentioned in Nos. 3, 4 and 5 are not
excluded by those in Nos. 1 and 2; neither do they exclude
one another.
In all cases of illegitimate children, their filiation must be
duly proved.
The father or mother of illegitimate children of the three
classes mentioned, shall inherit from them in the manner and
to the extent established by this Code. (807a)

This has been already qualified by the Family


Code because the Family code does not mention
acknowledged natural children or natural children
by legal fiction. We only have legitimate children
and illegitimate children.

Article
887
enumerate
compulsory heirs

who

are

the

Illegitimate children concur with legitimate


children. They concur with the parents or
ascendants. They concur with the surviving
spouse.
Illegitimate children are concurring
compulsory heirs

Brothers and sisters are not compulsory heirs


ARTICLE 888.
The legitime of legitimate children and
descendants consists of one-half of the hereditary estate of
the father and of the mother.
The latter may freely dispose of the remaining half,
subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided. (808a)

The legitime of legitimate children is of the


net hereditary estate

The legitime of the surviving spouse and


illegitimate children shall be taken from the free
portion. What remains is the free disposal

Tip:
Compute first the legitime of the
children before the spouse provided there are 2
or more legitimate children
ARTICLE 889.
The legitime of legitimate parents or
ascendants consists of one-half of the hereditary estates of
their children and descendants.
The children or descendants may freely dispose of the
other half, subject to the rights of illegitimate children and
of the surviving spouse as hereinafter provided. (809a)

The legitime of legitimate parents is of the


net hereditary estate. It is the same because
legitimate parents inherit in the absence of
legitimate children.

If the parents are legitimate, they are


excluded only by the presence of legitimate
children. They concur with illegitimate children.

But if the parents or ascendants are


illegitimate, they are excluded even by the
presence of illegitimate children or descendants.
ARTICLE 890.
The legitime reserved for the legitimate
parents shall be divided between them equally; if one of the
parents should have died, the whole shall pass to the
survivor.
If the testator leaves neither father nor mother, but is
survived by ascendants of equal degree of the paternal and
maternal lines, the legitime shall be divided equally
between both lines. If the ascendants should be of different
degrees, it shall pertain entirely to the ones nearest in
degree of either line. (810)

This is the inheritance of the parents or


ascendants

Observe the rule on proximity the nearer


relatives exclude those who are farther

In the ascending line, there is no right of


representation

Always remember to divide equally between


the maternal side and the paternal side

The word compulsory means that the testator


cannot deprive the heir of their share but the heir
has the liberty whether or not to accept the
inheritance. It is not compulsory upon the heirs to
accept but is compulsory upon the testator to
provide something for his heirs.

The primary compulsory heirs the legitimate


children, widow or widower, and illegitimate
children. They inherit all at the same time. They
concur with each other.

The
legitimate
parents
are
secondary
compulsory heirs. In the absence of legitimate

ARTICLE 891.
The ascendant who inherits from his
descendant any property which the latter may have
acquired by gratuitous title from another ascendant, or a
brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of
relatives who are within the third degree and who belong to
the line from which said property came. (871)

Article 891 talks about RESERVA TRONCAL

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

The purpose of reserve troncal is to prevent the


property of one family from falling into the hands of
another family

The concepts of reserve troncal is to return the


property from where it originally came from

The concept of reserva troncal is actually a


burden or restriction or a charge on the legitime of
the ascendant.
Parties involved in Reserva Troncal:
1. Origin of the property
2. Propositus
3 Reservor or reservista
4. Reservees or reservatorios
Origin

Reservor

Reservees

Propositus
ORIGIN

The origin must be a legitimate relative, either


the legitimate mother or father or ascendant or
legitimate half-brother or half-sister

It cannot be full blood brothers and sisters


because there would be no distinction as to the
line.

The property transferred from the origin to the


propositus must be OWNED by the origin
PROPOSITUS

The propositus must be a descendant of the


origin or of the half brother or half sister. It must be
a legitimate relationship.

The transfer from the origin to the propositus


should be by gratuitous title, which is either the
origin donated the property to the propositus or the
propositus inherited the property from the origin.

The propositus, there being no obligation to


reserve yet on his part, can just dispose the
property to anybody. He can use the property or he
can destroy the property.
That is why the
propositus is called the ARBITER of the reserve
because it is within the hands of the propositus
whether or not the reserve will arise.
If the
propositus will destroy the property, then reserva
troncal cannot arise. If the propositus reserves the
property until his death, then reserve troncal may
arise. If the propositus has children of his own,
then reserve troncal cannot arise.

Upon the death of the propositus, the obligation


to reserve will now arise. The propositus died with
no issues and no children, then, the same property
received from the origin is transferred to the
reservor (ascendant) by OPERATION OF LAW.

When the propositus died with a will, what is


transferred by operation of law is the portion
corresponding to the legitime of the reservor. If
there is NO will, the entire property is transmitted
to the reservor by operation of law.

The very same property received by the


propositus from the origin must be the same
property transferred to the reservor

If the origin (ascendant) left an insurance policy


where the propositus was the beneficiary, there is
no reserve if the cash received by the propositus
was inherited by his mother because the proceeds
from the insurance policy were not received by the
propositus from the origin but from the insurance
company.
RESERVOR

The reservor is not merely a usufructuary.


He is the full owner of the property. He can
alienate, donate or pledge the property. He owns
the property but his ownership is subject to a
RESOLUTORY CONDITION. Upon the happening of
the resolutory condition, the ownership of the
reservor will be extinguished.

The resolutory condition is that upon the


death of the reservor, there must be reservees or
relatives of the descendant propositus who are
LIVING AND WITHIN THE 3RD DEGREE OF
CONSANGUINITY from the descendant propositus.
Upon the happening of this resolutory condition,
the ownership of the reservor is extinguished.

But the disposition again is also subject to the


resolutory condition that upon the death of the
reservor (ascendant), if there are living
reservees, then the effect of the alienation
becomes ineffective.

If the reservor sold the property to a third


person, the obligation of the reservor, if it is a
personal property, is not to return but the estate
of the reservor must pay the value to the
reservees.

If what was sold was a real property, if the 3 rd


party is NOT innocent, as such that he knows that
the property is subject to the reserve troncal,
then that 3rd party is obliged to return the
properties to the reservees.

But if the 3rd party is an innocent purchaser or


innocent mortgagor, then the right of the
reservees consists of demanding payment from
the estate of the reservor or demanding payment
from the Assurance Fund under the Land
Registration Authority.

Obligations of the reservor during the


subsistence of the reserve:
1. The reservor must make an inventory of the
property received by operation of law from
the descendant;
2. He must register the inventory with the
Registry of Property;
3. If the property received from the descendant
is Real property, then the reservor has the
obligation to furnish a bond, mortgage or
security to insure the safe delivery of the
property to the reservees who might be living
at the time of the death of the reservor;
4. If the real property is already registered, then
the reservor is obliged to annotate the
reserve. He must do this within 90 days from
the time he received the property from the
descendant or from the time the court makes
a decision that the reservor is entitled to
receive the property. If the reservor does not
make the annotation, then the reservees
have the right to file an action to compel the
reservor to make the annotation but they
must wait after the lapse of 90 days. The
annotation itself is sufficient protection or if
there is no annotation, bond, security, or
mortgage must be furnished.
5. The reservor also must not substitute the
property with another. The same property
received from the origin and from the
descendant must be same properties to be
given to the reservees
Exceptions:
1. If the property is sold to the innocent
purchaser for value, in effect the
obligation of the reservor is substituted
with the obligation to pay money to
reserve;

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

2.

If the property is lost or destroyed without


the fault of the reservor, then the obligation
is extinguished.

The reservees may intervene in the


land registration proceeding not for the purpose of
opposing the registration but for the purpose of
having their claim to the reserva being annotated
to the title

If the reservees did not intervene in the


said proceedings, within 1 year, they can file for a
review of decree of registration so that they can
cause the annotation thereof. But they can no
longer do so beyond the 1-year period if the
purchaser is innocent.
If the purchaser is not
innocent, the 1-year period does not apply. The
purchaser may still be obliged to return the
property because knowledge is equivalent to
registration.
RESERVEES

Reservees are 3rd degree relatives of the


propositus.

Upon the death of the reservor, if there are still


relatives within the 3rd degree of the propositus
who are still living, then the ownership of the
reservor is extinguished and the property will now
go to the reservees.

The reservees inherit from the propositus, not


from the reservor.
The reservor is actually a
conditional heir of the propositus.

The reservees already have rights to the


property but their inheritance is subject to the
condition that they must be living at the time of the
death of the reservor.

During the lifetime of the reservor the


reservees can compel the reservor to furnish bond,
security, mortgage or to annotate the reserva
because they already inherit such property
although conditional. But the right of action of the
reservees commences only from the death of the
reservor. As long as the reservor is alive, if the
reservor sells the property to the 3rd person, the
reservees cannot impugn the sale made by the
reservor. They only have the right to demand that
the reservor annotate the reserva or that the
reservor give security, bond or mortgage.

Reservees can sell the property themselves


even if the reservor is still alive.

This is not a case of future inheritance because


the reservees inherit not from the reservor but from
the propositus. This is a case of sale of future
property or emptio rei speratae. The sale of future
property is valid subject to the condition that it
should exist.
ARTICLE 1461 NEW CIVIL CODE. Things having a
potential existence may be the object of the
contract of sale.
The efficacy of the sale of a mere hope or
expectancy is deemed subject to the condition that
the thing will come into existence.
The sale of a vain hope or expectancy is void.
(n)

How to know that a relative is within 1st, 2nd or 3rd


degree?
1st degree: parents,
2nd degree: grandparents, brothers and sisters
3rd degree:
great grandparents, uncles and
aunts, nephews and nieces

Collateral relatives are uncles


brothers & sisters, nephews & nieces

&

aunts,

Relatives in the direct line are parents,


grandparents and the great grandparents

Reserva troncal determines only a class of


relatives who would be entitled to the property
after the death of the testator. But as to who will
specifically be entitled to the property, follow the
rule on legal or intestate succession

In legal or intestate succession, the nearer


relatives exclude the farther. Those who are in
the descending line are favored than those who
are in the ascending line. And those who are in
the direct line are favored other than those who
are in the collateral line.
The obligation of the reservors estate upon his
death if the property deteriorates includes:
1. reimburse the reservees for the value of the
deterioration from the security furnished by
the reservor; or
2. claim reimbursement from the estate of the
reservor.
2 theories on the value of the reserva:
1. Under the theory of RESERVA MAXIMA, all
that can be embraced or included in the legitime
shall be considered as reservable property.
2. Under the theory of RESERVA MINIMA, only
HALF of the property received from the origin to
the descendant is transferred to the ascendant
reservor as legitime.
Example: Propositus inherits a land worth P500,000.
Upon his death, he also has P 1M worth of properties
aside from the P 500,000.The descendant propositus
has no issues and thus, all his properties will go to his
father (ascendant). The descendant made a will
giving all his properties to his father. If the father has
no other properties, how much should be the value of
the properties came from the propositus should the
reservor (father) reserve in favor of the reservees?

The legitime of the ascendant is P750,000,


which is from P 1.5 M divided by 2. Under the
theory of reserve maxima, the reservable
property is that which can be embraced in the
legitime.
As such, the entire P 500,000 is
reservable because it can be embraced in the
whole legitime worth P 750,000. Out of the
legitime,
P 500,000 is reservable and P
250,000 is property owned by the descendant.

Under the theory of reserva minima, only


half of the property received from the origin to
the descendant is reservable. So, half of P
500,000 and half of P 1M will be part of the
legitime, which is equal to P 750,000. Thus, the
reservable property is only P 250,000, which is
half of the property received from the origin to
the descendant.
Example: Propositus inherits a land worth P 1M.
Upon his death, he also has P 500,00 worth of
properties aside from the P 1M.The descendant
propositus has no issues and thus, all his properties
will go to his father (ascendant). The descendant
made a will giving all his properties to his father. If
the father has no other properties, how much should
be the value of the properties came from the
propositus should the reservor (father) reserve in
favor of the reservees?

The legitime of the ascendant is P750,000,


which is from P 1.5 M divided by 2. Under the
theory of reserve maxima, the reservable
property is that which can be embraced in the
legitime. As such, only P 750,000 is reservable
because it is only up to such amount that can be
embraced in the whole legitime worth P 750,000.

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Under the theory of reserva minima, only half


of the property received from the origin to the
descendant is reservable. So, half of P 1M and half
of P 500,00 will be part of the legitime, which is
equal to P 750,000. Thus, the reservable property is
only P 500,000, which is half of the property
received from the origin to the descendant.

The reserva maxima theory is more in keeping


with Article 891.
Reserva minima is more in
keeping with equity and justice. What is followed
is reserva minima.
If there is no will:

The entire property which came from the other


ascendant is reservable because the entire
property was transferred to the ascendant by
operation of law because there is no will. So, the
entire P 500,000 is reservable from the first
example and the entire P 1M is reservable from the
second example if there was no will.

When there is a will, only that part which


corresponds to the legitime is transferred by
operation of law.

But if there is no will then everything is


reservable
How is reserva maxima extinguished?
1. Upon the death of reservoir

2.

Upon the death of ALL the would-be reservees


ahead of the reservoir
3. Upon the loss of the reservable properties
without the fault or negligence of the reservoir
4. Upon prescription Adverse possession as
against reservees by the reservoir or a stranger of
the reservable property as free from reserva for 30
years if it is a real property and 8 years if it is a
personal property. In order for prescription to run,
the fact that the reservor repudiates or hold the
property free from the reserva must be
communicated to the reservees, the reservees
must know that the reservor is holding the property
as free from the reserva otherwise there will be no
prescription.
5. Upon registration under the Torrens System as
free from the reservation.
6. Upon renunciation or waiver by ALL reservees
AFTER the death of the reservoir

Reservable property is not extinguished by the


government. It will just continue on the indemnity
or just compensation

If the reservable property is insured and then,


destroyed, there is reserve on the insurance
indemnity or proceeds thereof
Bar Question: What do you understand by the
DELAYED INTESTACY THEORY?
This is the theory that is applied in RESERVA
TRONCAL.
Remember, in RESERVA TRONCAL, the
reservor inherits from the propositus. The reservee
also inherit from the propositus.
However, the inheritance by the reservee from the
propositus is delayed until after the death of the
reservor. The inheritance of the reservee from the
propositus is by virtue of legal or intestate succession.
Remember, even if the propositus dies testate or with a
will, that only refers to the inheritance of the reservor.
But, with respect to the reservee, what governs is the
law on legal or intestate succession.
That is the concept of DELAYED INTESTACY when
the resolutory condition of the reservor is fulfilled, the
properties are distributed to the reservees as if they
are inheriting from the propositus at the time of the

fulfillment of the condition. Since there is no will,


then, the reservees inherit by virtue of intestate
succession, the decedent being the propositus. The
inheritance of the reservees are delayed.
ARTICLE 892.
If only one legitimate child or descendant
of the deceased survives, the widow or widower shall be
entitled to one-fourth of the hereditary estate. In case of a
legal separation, the surviving spouse may inherit if it was
the deceased who had given cause for the same.
If there are two or more legitimate children or
descendants, the surviving spouse shall be entitled to a
portion equal to the legitime of each of the legitimate
children or descendants.
In both cases, the legitime of the surviving spouse shall
be taken from the portion that can be freely disposed of by
the testator. (834a)

If there is only one legitimate child, the


legitime of the surviving spouse would be of
the net hereditary estate to be taken from the
free portion

The guilty spouse shall be disqualified from


inheriting from the innocent spouse but the
innocent spouse can still inherit from the guilty
spouse.

If there are 2 or more legitimate children, the


surviving spouse can inherit from the deceased
even if there was legal separation and the
deceased spouse gave cause for the legal
separation
ARTICLE 893.
If the testator leaves no legitimate
descendants, but leaves legitimate ascendants, the
surviving spouse shall have a right to one-fourth of the
hereditary estate.
This fourth shall be taken from the free portion of the
estate. (836a)

In here, the surviving spouse concurs with the


legitimate ascendants. There are no legitimate
children

The share of the legitimate ascendant is onehalf. The share of the surviving spouse is to be
taken from the free portion

In order to memorize effectively, you have to


memorize first the share of the surviving spouse.
ARTICLE 894.
If the testator leaves illegitimate children,
the surviving spouse shall be entitled to one-third of the
hereditary estate of the deceased and the illegitimate
children to another third. The remaining third shall be at the
free disposal of the testator. (n)

In this scenario, the survivors are the spouse


and the illegitimate children.

The share would be 1/3 each. The remaining


1/3 would be the free portion.

The share of the surviving spouse is not taken


from the free portion

The legitimes of the legitimate children and


the legitimate parents would always be

The legitimes of the surviving spouse and the


illegitimate children may vary.
ARTICLE 895.
The legitime of each of the acknowledged
natural children and each of the natural children by legal
fiction shall consist of one-half of the legitime of each of the
legitimate children or descendants.
The legitime of an illegitimate child who is neither an
acknowledged natural, nor a natural child by legal fiction,
shall be equal in every case to four-fifths of the legitime of
an acknowledged natural child.
The legitime of the illegitimate children shall be taken
from the portion of the estate at the free disposal of the
testator, provided that in no case shall the total legitime of
such illegitimate children exceed that free portion, and that
the legitime of the surviving spouse must first be fully
satisfied. (840a)

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Note that under the Family Code, there are no


longer acknowledged natural, natural child by legal
fiction. We only have legitimate or illegitimate
children.

With respect to illegitimate children, they are


entitled to one-half of the share of one legitimate
child

In the distribution of legitimes, you first have to


satisfy the legitime of legitimate children and then,
the surviving spouse which should be taken from
the free portion. And whatever remains, divide it
equally among the illegitimate children
ARTICLE 896.
Illegitimate children who may survive with
legitimate parents or ascendants of the deceased shall be
entitled to one-fourth of the hereditary estate to be taken from
the portion at the free disposal of the testator. (841a)

In this scenario, the illegitimate children survive


with the legitimate parents of the testator

to the parents and to the illegitimate


children

Illegitimate children DO NOT exclude the


legitimate
parents
or
ascendants
whereas
legitimate children excludes legitimate parents or
ascendants
ARTICLE 897.
When the widow or widower survives with
legitimate children or descendants, and acknowledged natural
children, or natural children by legal fiction, such surviving
spouse shall be entitled to a portion equal to the legitime of
each of the legitimate children which must be taken from that
part of the estate which the testator can freely dispose of. (n)

The widow or the surviving spouse concur with


legitimate children and illegitimate children

If there is only 1 legitimate children, the


surviving spouse gets

If there are 2 or more legitimate children, the


spouse shall be entitled to a share which is
equivalent to a share of one of the legitimate child

For the illegitimate children, the share would be


of the share of 1 legitimate child

ARTICLE 898.
If the widow or widower survives with
legitimate children or descendants, and with illegitimate
children other than acknowledged natural, or natural children
by legal fiction, the share of the surviving spouse shall be the
same as that provided in the preceding article. (n)
ARTICLE 899.
When the widow or widower survives with
legitimate parents or ascendants and with illegitimate
children, such surviving spouse shall be entitled to one-eighth
of the hereditary estate of the deceased which must be taken
from the free portion, and the illegitimate children shall be
entitled to one-fourth of the estate which shall be taken also
from the disposable portion. The testator may freely dispose of
the remaining one-eighth of the estate. (n)

The survivors here are the legitimate parents,


illegitimate children and the spouse.

To the legitimate parents , to the illegitimate


children to be taken from the free portion and to
the surviving spouse 1/8 to be taken from the free
portion.
ARTICLE 900.
If the only survivor is the widow or widower,
she or he shall be entitled to one-half of the hereditary estate
of the deceased spouse, and the testator may freely dispose of
the other half. (837a)
If the marriage between the surviving spouse and the
testator was solemnized in articulo mortis, and the testator
died within three months from the time of the marriage, the

legitime of the surviving spouse as the sole heir shall be


one-third of the hereditary estate, except when they have
been living as husband and wife for more than five years. In
the latter case, the legitime of the surviving spouse shall be
that specified in the preceding paragraph. (n)

The only survivor here is the spouse

GENERAL RULE: The spouse shall be entitled to of


the net hereditary estate if he/she is the only
survivor.
EXCEPTION: The spouse shall be entitled to 1/3 if:
1.
The
marriage
was
celebrated in articulo mortis and
2.
the other spouse died
within 3 months from the celebration of the
marriage

The spouse who is at the point of death


during the marriage must be the one who
should die

The cause of death must be the very same


reason why the marriage was in articulo
mortis
EXCEPTION TO THE EXCEPTION: Surviving spouse
gets 1/2 even if the testator or the testatrix died
within 3 months from time of celebration of marriage
wherein the couple had been living previously as
husband and wife for more than 5 years

This provision is only true with respect to


testate succession. When it comes to intestate or
legal succession, this provision does not apply.
ARTICLE 901.
When the testator dies leaving illegitimate
children and no other compulsory heirs, such illegitimate
children shall have a right to one-half of the hereditary
estate of the deceased.
The other half shall be at the free disposal of the
testator. (842a)

The only survivors here are the illegitimate


children. They are entitled to of the estate. The
other half is considered as the free portion.
ARTICLE 902.
The rights of illegitimate children set forth
in the preceding articles are transmitted upon their death to
their descendants, whether legitimate or illegitimate. (843a)

If the illegitimate child died ahead of his


parents and he also has his own children
legitimate or illegitimate, all of these children will
inherit by Right of Representation. They will
get whatever rights their parents have.

The right of an illegitimate child passes to his


children whether legitimate or illegitimate.

In the case of a legitimate child, his own


illegitimate child cannot represent.
ARTICLE 903.
The legitime of the parents who have an
illegitimate child, when such child leaves neither legitimate
descendants, nor a surviving spouse, nor illegitimate
children, is one-half of the hereditary estate of such
illegitimate child. If only legitimate or illegitimate children
are left, the parents are not entitled to any legitime
whatsoever. If only the widow or widower survives with
parents of the illegitimate child, the legitime of the parents
is one-fourth of the hereditary estate of the child, and that
of the surviving spouse also one-fourth of the estate. (n)

The parents under this article are the


illegitimate parents (parents of an illegitimate
child)

The presence of legitimate children will


exclude the legitimate parents. But legitimate

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

parents, in the absence of legitimate children, will


concur with the illegitimate children.

With respect to the illegitimate parents of the


testator, they are excluded by the presence of the
children of the testator whether his children are
legitimate or illegitimate.

The illegitimate parents are only secondary


compulsory heirs because they inherit their
legitimes only in the absence of the legitimate or
illegitimate children or descendants of the
decedent

Article 903 refers to only to illegitimate parents


and not to other ascendants like the parents of the
illegitimate parents.

Thus, the rule here is different from the case of


the grandparents of a legitimate child, for they may
inherit in default of both legitimate parents
ARTICLE 904.
The testator cannot deprive his compulsory
heirs of their legitime, except in cases expressly specified by
law.
Neither can he impose upon the same any burden,
encumbrance, condition, or substitution of any kind
whatsoever. (813a)

Even without the will of the testator, the


compulsory heirs are always entitled to their
legitimes

The only way to deprive the compulsory heirs


of their legitime is by expressly disinheriting them
in a will, wherein the legal cause therefore shall be
specified.

Only the Free portion of the estate that the


testator can give away is subject to certain
condition, substitution or burden.

But the law states except in cases expressly


specified by law.
Burdens that the testator may impose on the
legitime:
In accordance with law:
1. A prohibition to partition the legitime is valid for
a period not exceeding 20 years
2. Reserva Troncal is also a burden insofar as the
legitime of the reservor or reservista is
concerned.
ARTICLE 905.
Every renunciation or compromise as
regards a future legitime between the person owing it and his
compulsory heirs is void, and the latter may claim the same
upon the death of the former; but they must bring to collation
whatever they may have received by virtue of the
renunciation or compromise. (816)

During the lifetime of the testator, the heirs


only have inchoate right over the properties of the
testator as well as to their legitime

The right to their legitime only becomes vested


when the testator dies

You can waive your right to the inheritance


and that can be executed because from the
moment of death of the testator, the right of heirs
to the estate already becomes vested even if
there is still no distribution.
ARTICLE 906.
Any compulsory heir to whom the testator
has left by any title less than the legitime belonging to him
may demand that the same be fully satisfied. (815)

Article
legitime

906

talks

about

completion

of

In this case, a compulsory heir has been


given his legitime by means of donation,
condonation, remission, devise, legacy as long as
the giving of the title is gratuitous
COMPLETION OF
LEGITIME (Article 906)
Part of the estate is given
to the compulsory heirs
although the amount is
equivalent
to
the
legitime but less than the
legitime.
All you have to do is to
give whatever amount
that is lacking.
The will remains

PRETERITION
There is total omission so
nothing is given to the
compulsory heir during
the lifetime or in the will,
nothing at all in the
inheritance.
We annul the institution
of heirs.
The will is invalidated but
legacies
and
devises
which are not inofficious
shall be respected.

ARTICLE 907.
Testamentary dispositions that impair or
diminish the legitime of the compulsory heirs shall be
reduced on petition of the same, insofar as they may be
inofficious or excessive. (817)

Article
907
talks
about
testamentary
disposition that impair or diminish the legitime of
compulsory heirs

By analogy, this article applies to donation


inter vivos. Donations which impair (donation
inter vivos) the legitime shall be reduced on
petition of the compulsory heirs.

When you apply inofficious donation, only the


compulsory heirs can assail that the donation
shall be reduced because it impairs their legitime.

The creditor cannot petition that donation


inter vivos which are inofficious be reduced
ARTICLE 908.
To determine the legitime, the value of
the property left at the death of the testator shall be
considered, deducting all debts and charges, which shall not
include those imposed in the will.
To the net value of the hereditary estate, shall be
added the value of all donations by the testator that are
subject to collation, at the time he made them. (818a)

There can be no renunciation or compromise


that can be made based upon a right that is yet an
expectancy or an inchoate right

Even if the compromise is made among the


compulsory heirs themselves, such compromise
would still not be valid.

There can be renunciation of or compromise on


present legitime because the subject matter is no
longer a future inheritance

If you do not arrive at the correct net


hereditary estate, all your computation of the
legitimes would be wrong

To reconcile with a waiver of a hereditary right,


a waiver of hereditary right is executed after the
death of the testator. Hereditary right means your
right to the inheritance. But in Article 905, we are
talking here of future inheritance or future legitime
executed during the lifetime of the testator.

You add the donations made during the


lifetime of the testator. That is the process of
COLLATION.

In collation, you do not actually return the


property physically but only the value thereof is
considered as part of the estate
Donations are collated because it would
easy for the testator to circumvent the law
legitime by donating all his properties during
lifetime so that nothing would be left for
compulsory heirs at the time of his death.

be
on
his
his

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Donations which are inofficious cannot be


assailed by creditors except when the donation is in
fraud of the creditor

The value to be considered is the value of the


property donated at the time it was donated, not
the value upon the death of the testator

Remember that donations to spouses are void.


Since it is void, it is still part of the estate and so,
there is nothing to collate because it was not
deducted
Example:
Donations
X
P 100,000
Y
P 350,000
Estate:
Less:
Debts
Taxes
Add:
Donations (X)
Donations (Y)
NET HEREDITARY

Estate: P2,500,000
Debts:
250,000
Taxes:
150,000
P 2,500,000

ARTICLE 910.
Donations which an illegitimate child may
have received during the lifetime of his father or mother,
shall be charged to his legitime.
Should they exceed the portion that can be freely
disposed of, they shall be reduced in the manner prescribed
by this Code. (847a)

( 250,000)
(
50,000)
---------------P 2,100,000
100,000
350,000
---------------ESTATE
========

This is not inofficious because it can be


accommodated in the free portion.
Assuming that the testator in his will made a
legacy to M worth P 500,000. The testator is survived
a by a spouse, a legitimate child and an illegitimate
child. A donation to Y worth P 350,000 was also
made.
Legitimate child
P 1,275,000
Spouse
637,500 (1,275,000/2)
Y
350,000
Illegitimate child
637,500
The estate is already consumed with what due to
the legitimate child, the spouse and the illegitimate
child. In this case, there is no more free portion left.
Thus, the donation becomes inofficious. In addition,
the legacy to M cannot be given effect because there
is no free portion anymore

P 2,550,000

Remedies provided for by law in assuring that


the compulsory heirs would receive their
legitime:
1.
Preterition where even if the
testator omits the compulsory heirs in his estate,
the law assures that the compulsory heirs would
still receive their inheritance.
2.
Collation where even if the
testator already dispose all his properties during his
lifetime, still, the compulsory heirs are assured of
their legitime.
ARTICLE 909.
Donations given to children shall be charged
to their legitime.
Donations made to strangers shall be charged to that part
of the estate of which the testator could have disposed by his
last will.
Insofar as they may be inofficious or may exceed the
disposable portion, they shall be reduced according to the
rules established by this Code. (819a)

Remember that in succession, a stranger is


one who is not a compulsory heir of the testator

Donations made to strangers during the


lifetime of the testator are charged to the free
portion.

Donations to strangers should be collated,


otherwise, the legitime of the compulsory heirs will
be impaired

If there is no free portion to speak of, the


donation becomes inofficious. As such, there has to
be a reduction or a return of the property donated.
Example: Same data as in the previous example in
Article 908
Legitime = P 2,550,000 / 2
= P 1,275,000
Donation made to X is considered as an advance.
Upon distribution, he will only receive P 1,175,000.
Donation made to Y shall be charged to the free
portion:
P 1,275,000 350,000 = P 925,000
The remaining free portion is P 925,000 because
the testator already disposed P 350,000 in advance.

ARTICLE 911. After the legitime has been determined in


accordance with the three preceding articles, the reduction
shall be made as follows:
(1) Donations shall be respected as long as the legitime
can be covered, reducing or annulling, if necessary, the
devises or
legacies made in the will;
(2) The reduction of the devises or legacies shall be pro
rata, without
any distinction whatever.
If the testator has directed that a certain devise or
legacy be
paid in preference to others, it shall not
suffer any reduction until the latter have been applied in
full to the payment of the legitime.
(3) If the devise or legacy consists of a usufruct or life
annuity, whose value may be considered greater than that
of the disposable portion, the compulsory heirs may choose
between complying
with the testamentary provision
and delivering to the devisee or
legatee the part of the
inheritance of which the testator could
freely dispose.
(820a)

Order of priority:
1. Legitime
2. Donations
3. Preferred legacy or devise; and
4. All other pro-rata
Steps to be followed under Article 911:
1. Determine the Net Hereditary Estate (NHE);
How?
Gross Estate
Less: Debts & charges
Plus: Donations subject to Collation
2. Determine the legitime of the compulsory
heirs based on #1;
3. Add total value of all of all the legitimes of all
the compulsory heirs;
4. Deduct the total value of the legitimes in #3
from the Net Hereditary Estate in #1 to arrive at
the free disposal;
5. Charge the donations to compulsory heirs to
their legitimes. In case of excess of donations
over the legitime, charge excess to free disposal;
6. Charge the donations to strangers to the free
disposal;
7. Charge PREFERRED legacies/devises to free
disposal;
8. Charge all other legacies/devises to free
disposal;
9. In case free disposal is insufficient, reduce
the legacies, donations etc in the order of
priority.
How?
1. Donation to strangers;

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

2.
3.

and the devisee will just pay the compulsory heirs


for such value

If there is still an excess, then you charge the


legacies & devises;
If still insufficient, all others.

If the reduction absorbs more than of its


value, it shall go to the compulsory heirs and the
compulsory heirs will just pay the devisee for
such value

Article 911 is when there are compulsory heirs


AND/OR there are donations subject to collations
Example:
Net Hereditary Estate
P 2,550,000
Donations: Legitimate child
P 100,000
X (friend)
350,000
M (legacy)
500,000
N (devise)
200,000
Testator is survived by a spouse and a legitimate
child.
Legitimate child
Spouse
Free Portion

P 1,275,000
637,500
--------------P 637,500

If it is exactly of its value, the real property


shall go to the devisee if you apply the article
literally, you would be defeating the intent of the
testator.
The devisee will just pay the
compulsory heirs for the value
ARTICLE 913.
If the heirs or devisees do not choose to
avail themselves of the right granted by the preceding
article, any heir or devisee who did not have such right may
exercise it; should the latter not make use of it, the property
shall be sold at public auction at the instance of any one of
the interested parties. (822)

If the legatee or devisee does not want to


exercise the right under Article 912, the other
parties (heir or devisee) may exercise the right
on behalf of the party who does not wish to
exercise the right

The free portion is not sufficient to accommodate


the donation, the legacy, and the devise.
Donations are preferred as long as the legitime can
be covered, reducing or annulling, if necessary, the
devises or legacies made in the will.
Free Portion
Donation to X (friend)
Remaining Free Portion

P 637,500
350,000
-----------P 287,500

The remaining free portion is to be distributed prorata since the testator did not prefer a certain devise or
legacy.

If none of the parties have the interest to


exercise the right or reimbursement or retention,
the property may just be sold at a public auction
at the instance of any interested party such as a
creditor of the estate
ARTICLE 914.
The testator may devise and bequeath the
free portion as he may deem fit. (n)

After all the legitimes of the compulsory heirs


have been satisfied, including the surviving
spouse and the illegitimate children, the free
disposal may be given by the testator to anybody
provided that there is no prohibition by law.

If he gives the free disposal to his concubine,


that is not allowed

Legacy: 5/7 x 287,500 = P 205, 357.14


Devise: 2/7 x 287,500 = P 82, 142.86

If there are preferred legacy or devise, for


example, the testator says that the legacy to M is
preferred, therefore, of the P287,500 remaining,
this will all be given as legacy to M. The whole P
500,000 cannot be given because the net estate is
not sufficient. But because it is preferred, it shall
be given ahead of the devise. In that case, the
devise will not be given anymore.

If there were 2 or more donations, they shall be


respected equally if made at the same time. It
shall be apportioned the same with the legacy and
devise, which means pro-rata.

If there were 2 or more donations made on


different dates, the earlier one shall be respected.
The more recent donations are less preferred than
the donations earlier made because there is a
presumption that it was made first. This means
that the testator has more preference or affection
for that person to whom he made that first
donation. That is if the donations are made on
different dates.
ARTICLE 912.
If the devise subject to reduction should
consist of real property, which cannot be conveniently divided,
it shall go to the devisee if the reduction does not absorb onehalf of its value; and in a contrary case, to the compulsory
heirs; but the former and the latter shall reimburse each other
in cash for what respectively belongs to them.
The devisee who is entitled to a legitime may retain the
entire property, provided its value does not exceed that of the
disposable portion and of the share pertaining to him as
legitime. (821)

In this case, the devise subject to reduction


cannot be conveniently divided

According to Article 912, if the reduction does


not absorb of its value, it shall go to the devisee

Review on LEGITIME

MEMORIZE
the
legitime
of
the
compulsory heirs

For easy memorization, maybe, you first start


with the legitime of the surviving spouse because
the legitime of the surviving spouse varies
according to the other concurring heirs.
1.

Surviving spouse with 1 legitimate child


Legitimate child
=

2. If there are 2 or more legitimate children, the


share of the
surviving spouse changes:
Surviving spouse = share of 1 legitimate child
Legitimate child
= 1/2
3.

Spouse surviving with the parents of the testator:


Surviving spouse =
Parents
=
If there are illegitimate children:
Surviving spouse = 1/8

4.

Spouse survives with illegitimate children only:


Surviving spouse = 1/3
Illegitimate children= 1/3

5.

If
If
other
If

the spouse is the only survivor


=
marriage celebrated articulo mortis and the
spouse died within 3 months
= 1/3
they have been living together for 5 years =
Legitimate children always

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Legitimate parents always

Illegitimate children always of the share of 1


legitimate child unless there are many illegitimate
children and the estate is not enough to
accommodate their share. In that case, divide the
remainder among the illegitimate children.
SECTION 6
Disinheritance
ARTICLE 915.
A compulsory heir may, in consequence of
disinheritance, be deprived of his legitime, for causes
expressly stated by law. (848a)

Article 915 talks about the consequence of


being disinherited

DISINHERITANCE is the process or act, thru a


testamentary disposition of depriving in a will any
compulsory heir of his legitime for true and lawful
causes.

Disinheritance refers only to a compulsory heir

Disinheritance is made through a testamentary


disposition. There must be a will.

There is no disinheritance in legal or intestate


succession, only in testate succession

Disinheritance can be made only for causes


expressly stated by law
Ways of depriving the compulsory heir of his
legitime
1. Disinheritance (Article 915)

2.

Repudiation of the inheritance - the act of the


heir himself
3. Incapacity by reason of unworthiness

4.

Predecease - the actual or presumptive death


of the heir
5. Loss of the estate
6. When the death or charges are equal to or
more than the value of the estate
ARTICLE 916.
Disinheritance can be effected only through
a will wherein the legal cause therefor shall be specified. (849)

Requisites for a valid disinheritance:


1. The disinheritance must be made in valid will

The disinheritance can also be effected by


virtue of a codicil
Disinheritance can also be made in a separate
will

Disinheritance
can
also
be
made
in
Incorporation By Reference
2. The disinheritance must be made expressly, not
impliedly
3. There must be a legal cause for the disinheritance
4. The disinheritance must be made for a true cause
5. The disinheritance must be for and existing cause

A conditional disinheritance is not allowed:


I will disinherit my son if he will kill me in the
future

But a conditional revocation of disinheritance is


allowed:
My son attempted for my life. I will disinherit
him.
But if he will ask for my forgiveness, I
will revoke the disinheritance
6. The disinheritance must be total or complete
7. The cause must be stated in the will itself
8. The heir disinherited must be clearly identified, so
that
there will be no doubt as to who is really being
disinherited
9. The will in which the disinheritance is stated must
not have been revoked, at least in so far as the
disinheritance is concerned

ARTICLE 917.
The burden of proving the truth of the
cause for disinheritance shall rest upon the other heirs of
the testator, if the disinherited heir should deny it. (850)
ARTICLE 918.
Disinheritance without a specification of
the cause, or for a cause the truth of which, if contradicted,
is not proved, or which is not one of those set forth in this
Code, shall annul the institution of heirs insofar as it may
prejudice the person disinherited; but the devises and
legacies and other testamentary dispositions shall be valid
to such extent as will not impair the legitime. (851a)

Article 918 talks of invalid disinheritance

Instances
wherein
there
is
ineffective
disinheritance:
1. Disinheritance without specification of the cause
2. For a cause which is not a true cause
3. For a cause not given in law
Consequence
disinheritance

if

there

is

an

invalid

It shall annul the institution of the heirs but in


so far as only for the purpose of completing the
legitime of the compulsory heir

But the devises and legacies and other


testamentary dispositions shall be valid to such
extent as will not impair the legitime
EXAMPLE # 1:
The testator instituted A and B in his will and
disinherited C for the reason that C is ugly . A, B
and C are all his legitimate children. His estate is
worth P 120,000.
The effect is it shall annul the institution of heirs
insofar as only it may prejudice the legitime of the
invalidly disinherited heir.
Legitime = P 120,000 / 2
= P 60,000
Legitime of each child = P 60,000 / 3
= P 20,000
Distribution:
C
=
P 20,000 (legitime)
A
=
P 20,000 + 30,000 = P
50,000
B
=
P 20,000 + 30,000 = P
50,000
EXAMPLE # 2:
Same example with additional data that X is
given a legacy of P 30,000 cash.
C = P 20,000
A = P 20,000 + P 15,000
B = P 20,000 + P 15,000
X = P 30,000

Remember, in the order of distribution, the


devise or legacy shall be given ahead of the
inheritance.
PRETERITION
The omission may be
either
intentional
or
unintentional as long as
the deprivation is total.
With cause or without
cause
Annuls the institution
May
exist
with
or
without a will.
Q: How does preterition
exist without a will?

VALID DISINHERITANCE
Disinheritance is always
intentional because it has
to be provided for in the
will.
The
cause
must
be
provided
for
by
law.
(Articles 920 & 921 NCC)
The
disinherited
heir
inherits nothing from the
legitime & the free portion.
There must always be a
will

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

A: During the lifetime of


the testator, he can
make donations and the
donations
will
be
collated later on.
If
during his lifetime, he
gave all his properties
to one of his children.
So upon his death,
there is nothing left. So
upon his death, there is
no will but still there is
preterition
because
there is omission.
The institution is always
void

PRETERITION
The institution of heirs
is completely annulled
If there is
legacy, he
the devise
long as
inofficious

a devise or
will receive
or legacy as
it is not

It
is
important
to
distinguish whether the
person is an instituted
heir or a devisee or
legatee

The institution will be


followed unless there is
another cause for not
following the institution
which is not because of the
disinheritance
but
for
other causes.
IMPERFECT
DISINHERITANCE
The institution remains
valid, but must be reduced
insofar as the legitime has
been impaired
Devises, legacies or other
testamentary dispositions
shall be valid. Even if the
person is just an instituted
heir, he will still receive his
share or inheritance.
Even if the person is just
an instituted heir, as long
as the institution does not
prejudice the legitime of
the invalidly disinherited
heir, then, that heir shall
receive the inheritance

ARTICLE 919.
The following shall be sufficient causes for
the disinheritance of children and descendants, legitimate as
well as illegitimate:
(1) When a child or descendant has been found guilty of an
attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(2) When a child or descendant has accused the testator of a
crime
for which the law prescribes imprisonment for six
years or more, if the accusation has been found groundless;
(3) When a child or descendant has been convicted of
adultery or
concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence,
intimidation, or undue influence causes the testator to make
a will or to change
one already made;
(5) A refusal without justifiable cause to support the parent or
ascendant who disinherits such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child
or descendant;
(7) When a child or descendant leads a dishonorable or
disgraceful
life;
(8) Conviction of a crime which carries with it the penalty of
civil
interdiction. (756, 853, 674a)

Article 919 talks about the grounds


disinheritance

Under Article 919, the person who is


disinherited is a child or descendant of the testator,
whether that child is legitimate or illegitimate
(1) When a child or descendant has been found guilty
of an attempt against the life of the testator, his or
her spouse, descendants, or ascendants

(2) When a child or descendant has accused the


testator of
a crime for which the law prescribes
imprisonment for
six years or more, if the
accusation has been found
groundless

The accusation be groundless

The crime being referred here is against


anybody
Accusations referred in this paragraph:
1. It may include the institution of a criminal
action
2. You testify in a case against your parents or
ascendants involving a crime which carries a
penalty of 6 years or more
3. Statements wherein you affirm the
accusations made against your parents,
ascendants.
(3) When a child or descendant has been convicted
of adultery
or concubinage with the spouse of
the testator

The law here says convicted of adultery or


concubinage, unlike the ground in legal
separation where preponderance of evidence
is sufficient

There has to be conviction


(4) When a child or descendant by fraud, violence,
intimidation, or undue influence causes the
testator to
make a will or to change one already
made

There has to be another will made


(5) A refusal without justifiable cause to support the
parent or
ascendant who disinherits such child
or descendant

There is final judgment or conviction already


At the time of the execution of the will, it is not
necessary that the judgment is final

The determination whether or not the refusal


of the child is without just cause will depend
upon the means of the child and the
necessity of the ascendant

(6) Maltreatment of the testator by word or deed, by


the child
or descendant

This ground of maltreatment is present only


with
respect
to
disinheritance
of
a
descendant

(7) When a child or descendant leads a dishonorable


or disgraceful life

for

He can be found guilty and the judgment may


become final after the death as long as it
becomes final. Disinheritance can be given
effect once the judgment becomes final
already. There must be an intent to kill.
Even if the descendant is just an accomplice
or accessory, this paragraph applies
Even if the law says attempt, the more
reason that frustrated and consummated
stages are to be included

What is dishonorable or disgraceful life is a


question which is addressed to the judgment
of the court but generally, the act must not
be an isolated or single act
It has to be a way of life
The child or descendant may be a male or a
female

(8) Conviction of a crime which carries with it the


penalty of
civil interdiction

Generally, crimes which are punishable by


death penalty, reclusion perpertua and
reclusion temporal, all of these carry with it
the accessory penalty of civil interdiction

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

ARTICLE 920.
The following shall be sufficient causes for
the disinheritance of parents or ascendants, whether
legitimate or illegitimate:
(1) When the parents have abandoned their children or
induced their
daughters to live a corrupt or immoral life, or
attempted against
their virtue;
(2) When the parent or ascendant has been convicted of an
attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(3) When the parent or ascendant has accused the testator of
a crime for which the law prescribes imprisonment for six
years or more, if the accusation has been found to be false;
(4) When the parent or ascendant has been convicted of
adultery or
concubinage with the spouse of the testator;
(5) When the parent or ascendant by fraud, violence,
intimidation, or undue influence causes the testator to make
a will or to change
one already made;
(6) The loss of parental authority for causes specified in this
Code;
(7) The refusal to support the children or descendants
without justifiable cause;
(8) An attempt by one of the parents against the life of the
other,
unless there has been a reconciliation between them.
(756, 854,
674a)

This
article
deals
with
disinheriting an ascendant

The disinherited heir


grounds stated in the will

may

the

causes

controvert

the

(1) When the parents have abandoned their children or


induced their daughters to live a corrupt or
immoral life, or attempted against their virtue

Abandonment here does not even have to


amount to a crime as long as he has already
deprived his child of the basic necessity or he
has not been seen for a number of years

Abandonment refers to either physical,


educational or moral as long as you neglect
your child
This may be applied by analogy to sons

(2) When the parent or ascendant has been convicted


of an attempt against the life of the testator, his or
her spouse, descendants, or ascendants
(3) When the parent or ascendant has accused the
testator
of a crime for which the law prescribes
imprisonment for
six years or more, if the
accusation has been found to be false
(4) When the parent or ascendant has been convicted
of adultery or concubinage with the spouse of the
testator
(5) When the parent or ascendant by fraud, violence,
intimidation, or undue influence causes the testator
to make a will or to change one already made

Numbers 2, 3, 4, and 5 are the same as those


in Article 919
(6) The loss of parental authority for causes specified
in this Code

In this case, this should refer to those causes


by which the parent or ascendant is at fault.
These causes are provided for in Article 330
and 332 of the Civil Code.

ARTICLE 330 NEW CIVIL CODE. The father and in a


proper case the mother, shall lose authority over
their children:
(1) When by final judgment in a criminal case the
penalty of deprivation of said authority is imposed
upon him or her;
(2) When by a final judgment in legal separation
proceedings such loss of authority is declared. (169a)
ARTICLE 332 NEW CIVIL CODE. The
courts
may
deprive the parents of their authority or suspend the
exercise of the same if they should treat their
children with excessive harshness or should give
them corrupting orders, counsels, or examples, or

should make them beg or abandon them. In these


cases, the courts may also deprive the parents, in
whole or in part, of the usufruct over the child's
property, or adopt such measures as they may
deem advisable in the interest of the child. (171a)

A child under parental authority cannot


execute a will
If the parent regains parental authority, there
are 2 views:
1. The disinheritance will remain
notwithstanding that the parent has
regain his or her parental authority
because the reason for the disinheritance
is not really the loss of parental authority
but the cause for the loss of parental
authority.
2. The disinheritance is already deemed
ineffective because upon the death of the
child there is really no more loss of
parental authority.

(7) The refusal to support the children


descendants
without justifiable cause

The same with Article 919

or

(8) An attempt by one of the parents against the life


of the other, unless there has been a reconciliation
between
them.

The child, the son, the daughter or the


grandchild may disinherit his parent who has
attempted against the life of the other parent

No need for conviction because the law says


attempt, so mere attempt

But if there is a reconciliation between the


parents, then, the child cannot anymore
disinherit because if the offended party has
deemed it proper to forgive the other spouse,
then, with more reason the child because he
is not the party directly offended

ARTICLE 921.
The following shall be sufficient causes for
disinheriting a spouse:
(1) When the spouse has been convicted of an attempt
against the
life of the testator, his or her descendants,
or ascendants;
(2) When the spouse has accused the testator of a crime
for which
the law prescribes imprisonment of six
years or more, and the
accusation has been found to be
false;
(3) When the spouse by fraud, violence, intimidation, or
undue influence cause the testator to make a will or to
change one
already made;
(4) When the spouse has given cause for legal separation;
(5) When the spouse has given grounds for the loss of
parental
authority;
(6) Unjustifiable refusal to support the children or the other
spouse. (756, 855, 674a)

When the
separation

spouse

has

given

cause

for

legal

In this case, there is yet no decree of legal


separation but only the occurrence of the
cause for legal separation.
You do not have to secure a decree of legal
separation first before you can disinherit your
spouse who has given ground

Grounds for Legal Separation:


ARTICLE 55 NEW CIVIL CODE. A petition for legal
separation may be filed on any of the following
grounds:
(1) Repeated physical violence or grossly abusive
conduct
directed against the petitioner, a
common child, or a
child of the petitioner;
(2) Physical violence or moral pressure to compel
the petitioner to change religious or political
affiliation;

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

(3) Attempt of respondent to corrupt or induce the


petitioner, a common child, or a child of the
petitioner,
to engage in prostitution, or connivance
in such
corruption or inducement;
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if
pardoned;
(5) Drug addiction or habitual alcoholism of the
respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines
or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the
petitioner; or
(10) Abandonment of petitioner by respondent
without
justifiable cause for more than one
year.
For purposes of this Article the term "child" shall
include a child by nature or by adoption. (97a)

Note that even if there is merely an attempt


against the life of the other spouse, it can be a
ground for disinheritance because it is a ground
for legal separation. In this ground, there is no
conviction, but mere attempt

But under Article 921, paragraph 1, take note


that what it provides is conviction: When the
spouse has been convicted of an attempt
against the life of the testator, his or her
descendants, or ascendants

If one of the spouses attempt against the life of


a common child or descendant, there has to be
conviction in order that it may constitute a
ground for disinheritance because it is not a
ground for legal separation

If there already has been a decree of legal


separation, there is no more need to disinherit the
offending spouse because by operation of law, the
inheritance given to the other spouse is revoked
and he or she is also disqualified from inheriting
from the innocent spouse.
ARTICLE 922.
A subsequent reconciliation between the
offender and the offended person deprives the latter of the
right to disinherit, and renders ineffectual any disinheritance
that may have been made. (856)

Reconciliation is the mutual restoration of


feelings to the status quo. It is a bilateral act. The
offended party must be able to forgive and the
offender must be able to accept the forgiveness.

If there is disinheritance and subsequently


there is reconciliation, then the disinheritance
becomes ineffectual

There is no reconciliation if it is merely a


general pardon wherein the testator forgives all
who have offended him because such is a unilateral
act of the testator
How is disinheritance revoked?
1.
There is subsequent reconciliation (so
the disinheritance shall be ineffective)
2.
By making the disinherited heir an
instituted heir
3.
By the revocation of a will containing
disinheritance
4.
By the disallowance of a will containing
the disinheritance

ARTICLE 923.
The children and descendants of the person
disinherited shall take his or her place and shall preserve the
rights of compulsory heirs with respect to the legitime; but the

disinherited parent shall not have the usufruct or


administration of the property which constitutes the
legitime. (857)

Article 923 talks about the


representation
of
the
heirs
disinherited heir

right of
of
the

EXAMPLE: Testator has 2 children, A and B. A has 2


children, C and D. A is disinherited. Even if A can no
longer inherit, C and D will now represent A but only
with respect to the legitime of A. The fault of A
should not be imputed against As heirs.

An heir who has been disinherited can be


represented

PER CAPITA means one inherits in his own


right. In the example, B inherits in his own right.

PER STIRPES means one inherits by virtue


of representation.
In the example, C and D
inherit as representatives of A

When there is a will, representation takes


place only with respect to the legitime

But if there is no will, representation pertains


to the ENTIRE portion

A will containing only a disinheritance is an


indirect disposition. It is a valid will

PRINCIPLE: When there is a will, the


representation of the heir of the disinherited heir
will only be to the EXTENT OF THE LEGITIME. But
with respect to the free portion, that goes to the
instituted heir UNLESS the will does not dispose
of the entire property and that there is intestacy
the own heirs of the disinherited heir may still
part of the free portion

The disinherited heir who is represented has


no usufruct or administration of the property
which constitutes the legitime. Even if his own
children will get the property which he should
have gotten had he not been disinherited, he
cannot use it and he cannot administer it

There is no representation with respect to the


spouse. right of representation pertains only to
the descending and direct line

There is no right of representation in the


ascending line
SECTION 7
Legacies and Devises
ARTICLE 924.
All things and rights which are within the
commerce of man may be bequeathed or devised. (865a)

Everything can be bequeathed or devise as


long as within the commerce of man
Things which cannot be bequeathed or devised:
1. Res Communes
2. Property of Public Dominion
3. Property of Public Use
4. Res Nullus
5. Illicit things
6. Purely Personal or Intransmissible Rights
ARTICLE 925.
A testator may charge with legacies and
devises not only his compulsory heirs but also the legatees
and devisees.
The latter shall be liable for the charge only to the extent of
the value of the legacy or the devise received by them. The

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

compulsory heirs shall not be liable for the charge beyond the
amount of the free portion given them. (858a)

GENERAL RULE: When the will is silent, the estate has


the duty of effecting the legacy or devise
EXCEPTION: If the testator charges his heirs with the
legacy or devise, then ALL of the heirs, including the
legatees or devisees, has the duty of effecting the
legacy or devise. The value of the legacy or devise
given by the heirs shall be proportion to the shares
which they received.
EXCEPTION TO THE EXCEPTION: But is a SPECIFIC HEIR
or LEGATEE OR DEVISES is charged with the burden of
giving this legacy or devise, then that legatee, devisee,
or heir alone shall bear the burden of giving out the
legacy or devise. Even the compulsory heirs may be
charged with the burden of the legacy or devise but it
should not exceed the amount of the free portion given
Kinds of Legacy
1. LEGACY PROPER The estate has the duty to
give the legacy.
2. PRE-LEGACY The duty is given to the estate
but the gift is given to a specific heir or legatee.
The legacy is made specific or determinate so a
car, a house and lot but still the duty to give the
legacy or devise is upon the estate.
3. SUB-LEGACY/SUB-DEVISE this is the one
referred to under Article 925, when a legacy is
charged to an heir, or a legatee or a devisee.
ARTICLE 926.
When the testator charges one of the heirs
with a legacy or devise, he alone shall be bound.
Should he not charge anyone in particular, all shall be
liable in the same proportion in which they may inherit. (859)
ARTICLE 927.
If two or more heirs take possession of the
estate, they shall be solidarily liable for the loss or destruction
of a thing devised or bequeathed, even though only one of
them should have been negligent. (n)

Even if they are solidarily liable, the heir who is


not negligent can demand reimbursement form the
one who was negligent

If the thing is lost through a fortuitous event,


the heirs do not have any obligation to deliver.

If it is intentional, there is no solidary liability.


The one who is at fault is the only one liable.
ARTICLE 928.
The heir who is bound to deliver the legacy
or devise shall be liable in case of eviction, if the thing is
indeterminate and is indicated only by its kind. (860)

If indeterminate or generic, the heir bound to


deliver is liable for eviction. There is warranty
against eviction because being indeterminate or
being generic, the heir charged should not have
delivered thing which is defective.

If specific, the heir is not liable because his duty


is merely to deliver what the testator has chosen. It
is beyond the power of the heir, legatee or devisee
charged. He is merely charged with he duty of
delivering the very same thing mentioned by the
testator. He has no liability for eviction.
ARTICLE 929.
If the testator, heir, or legatee owns only a
part of, or an interest in the thing bequeathed, the legacy or
devise shall be understood limited to such part or interest,
unless the testator expressly declares that he gives the thing
in its entirety. (864a)

GENERAL RULE: The legacy or devise shall be valid


only to that portion which is owned by the testator
EXCEPTION: If the testator EXPRESSLY declares that he
gives the thing in its entirety

Article 929 presupposes that the testator


knows that he is not the full owner of the thing
but still he has interest or he is a part owner

The knowledge of the testator can be proved


by the will itself or by evidence aliunde (evidence
oustside the will).

But if the testator wants to give the property


in its entirety, he must expressly provide it in the
will.
ARTICLE 930.
The legacy or devise of a thing belonging
to another person is void, if the testator erroneously
believed that the thing pertained to him. But if the thing
bequeathed, though not belonging to the testator when he
made the will, afterwards becomes his, by whatever title,
the disposition shall take effect. (862a)

ARTICLE 929
The testator is a partowner or has a part
interest AND he knows
that he a part interest or
ownership in the thing
bequeathed or devise.

ARTICLE 930
The testator has no
interest whatsoever but
he erroneously believed
that
he
owns
the
property.

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

Article 930
The testator does not own
the property but he
erroneously believed that
he owns the property
If the owner of the
property
demands
an
excessive price or refuses
to alienate the property
then, that is the time
when the estate, or the
heir, legatee or devisee
charged with the duty of
giving
shall
give
a
reasonable or just value
of the thing.

Article 931
The testator knows that
the property is not his
and he makes an ORDER
that the property shall
be given to the devisee
or to the legatee.
If theres an order, the
estate, or the heir,
legatee
or
devisee
charged MUST ACQUIRE
it and give it to the
legatee or devisee.

If the testator knows that he does not own


the property but gives it to the devisee or legatee
and there is no order that it shall be acquired by
the estate, the devise or legacy is still valid but
the estate, or the heir, legatee or devisee
charged with the duty of giving the property has
a choice. He may have or acquire the property
and give it to the legatee or devisee or he may
just pay the just value.

If there is an order, follow the order

But if the owner of the property does not


want to alienate the property, the heir or the
estate must pay the just value

If there is no order that it shall be acquired by


the estate, the estate has the choice. He may
just acquire the property or pay the just value
thereof.

The order that the thing belonging to another


be acquired NEED NOT BE EXPRESS. It may be
implied.

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Remember the difference:

Article 929 he owns only a part of the thing

Article 930 he does not own the thing and he


does not know that he does not own the thing

Article 931 he does not own the thing but at


the time of the execution of the will, he knew that
he was not the owner of the thing
ARTICLE 932.
The legacy or devise of a thing which at the
time of the execution of the will already belonged to the
legatee or devisee shall be ineffective, even though another
person may have some interest therein.
If the testator expressly orders that the thing be freed
from such interest or encumbrance, the legacy or devise shall
be valid to that extent. (866a)

This article talks of a thing given as a devise or


as a legacy which at the time of the execution of
the will already belongs to the legatee or devisee

The point to remember is THE TIME OF THE


EXECUTION OF THE WILL

In this case, the legacy or devise would be void


because it would be a legal impossibility for the
testator to give to the legatee something that the
legatee already owns

Even if the thing is mortgaged to another


person, the mortgagor still remains to be the owner
of the thing. The legacy or devise will still be void.

the
will
the
the

But if there is an order from the testator that


thing be saved from the mortgage, the legacy
be valid only to such extent. Upon the death of
testator, the estate has to pay the debt so that
property may be saved from the mortgage.

ARTICLE 933.
If the thing bequeathed belonged to the
legatee or devisee at the time of the execution of the will, the
legacy or devise shall be without effect, even though it may
have subsequently alienated by him.
If the legatee or devisee acquires it gratuitously after such
time, he can claim nothing by virtue of the legacy or devise;
but if it has been acquired by onerous title he can demand
reimbursement from the heir or the estate. (878a)

1st paragraph: At the time of the execution of


the will, the legatee or devisee is the owner

2nd paragraph: At the time of the execution of


the will, the legatee or devisee is NOT the owner.
He can still get something if he acquires the
property subsequently by virtue of onerous title. If
it was acquired by gratuitous title, he can claim
nothing from the estate of the testator.

before the execution of the will, the estate is obliged to pay


the debt, unless the contrary intention appears.
The same rule applies when the thing is pledged or
mortgaged after the execution of the will.
Any other charge, perpetual or temporary, with which
the thing bequeathed is burdened, passes with it to the
legatee or devisee. (867a)

Here, the property devised or bequeathed is


subject to a pledge or mortgage to secure a
recoverable debt

The estate has the obligation to free the land


from the mortgage

This will apply even if the mortgage was


made after the execution of the will or before

The estate has no obligation to free the


property from the burden imposed by a bond
because this article only applies to a pledge or a
mortgage
or anything
which
secures
a
recoverable debt.
If the property bond is
constituted upon a property, that is not a
recoverable debt.

The same thing if the property is leased. The


estate has no obligation to free the land from the
lease. The lease is not a pledge or a mortgage.

In these cases, the legatee or devisee has the


obligation to respect the lease or have the
obligation to respect the property bond
ARTICLE 935.
The legacy of a credit against a third
person or of the remission or release of a debt of the
legatee shall be effective only as regards that part of the
credit or debt existing at the time of the death of the
testator.
In the first case, the estate shall comply with the legacy
by assigning to the legatee all rights of action it may have
against the debtor. In the second case, by giving the legatee
an acquittance, should he request one.
In both cases, the legacy shall comprise all interests on
the credit or debt which may be due the testator at the time
of his death. (870a)

This article refers to LEGACY OF CREDIT


and LEGACY OF REMISSION

In Legacy of Credit, the testator (creditor)


has some receivables from X (debtor). In his will,
the testator provides that if upon his death, the
said obligation is not yet paid, then, A will have
the right to whatever amount is paid by X or A
may proceed against X.

The law says only as regards that part of the


credit or debt existing at the time of the
death of the testator

When property is acquired after the execution


of the will but before the death, those
properties will not pass to the heir (Article
793)

This also applies even if at the time of the


execution of the will, the testator was the owner of
the thing.
What should be reimbursed?
1. If thru sale the price paid therefore

2.
3.
4.

If thru barter the value of the thing


exchanged
If thru an onerous donation (there is
consideration, not pure liberality) the value of
the burden imposed
If thru adjudicacion en pago the value of the
credit, interest and cost

Who reimburses?
1. The estate if no one has been charged in
particular
2. The heir, legatee, or devisee who has been
charged
ARTICLE 934.
If the testator should bequeath or devise
something pledged or mortgaged to secure a recoverable debt

In Legacy of Remission, the testator


provides upon his death that whatever obligation
X has at that time is already condoned or
remitted.

This refers to only such part existing at the


time of the death of the testator

This legacy of remission stands in the same


status as donation because when the testator
dies, the value of the debt should be added
or collated to the gross estate

The legacy of remission also carries with it


the duty of the estate of the testator to give
the legatee an acquittal, like a note indicating
that the legatee has no more debt

ARTICLE 936.
The legacy referred to in the preceding
article shall lapse if the testator, after having made it,

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

should bring an action against the debtor for the payment of


his debt, even if such payment should not have been effected
at the time of his death.
The legacy to the debtor of the thing pledged by him is
understood to discharge only the right of pledge. (871)

This is an example of REVOCATION BY


OPERATION OF LAW

The law presumes that by filing the action for


collection, the testator is no longer interested to
give the legacy

Action means judicial action. Mere demand


letter is not sufficient. For the law to set in or for
us to presume that there is revocation by operation
of law, there has to be a judicial action.

A legacy that belongs to the legatee or devisee


is void. Even if the legatee pledged the car to the
testator, but, that is just a pledge. There is no
grant of ownership to the testator. The legatee
remains to be the owner of the car. So, the status
of the legacy is void.

But, as a consequence of that legacy, the law


presumes that the testator is said to extinguish the
pledge already. The legatee cannot enforce the
legacy but he may enforce, as a legal consequence,
that the pledge is now extinguished.

Under Article 936, although there is a legacy of


remission and legacy of credit, still there is no
warranty on the part of the testator as to the
existence or legality of the credit or as to the
solvency of the debtor.
ARTICLE 937.
A generic legacy of release or remission of
debts comprises those existing at the time of the execution of
the will, but not subsequent ones. (872)

This article specifically talks about legacy of


release or remission of debt

Only those existing at the time of the execution


of the will

The value of the debt remitted should not


exceed the portion which the testator can freely
dispose of. It must not exceed the free disposal.
ARTICLE 938.
A legacy or devise made to a creditor shall
not be applied to his credit, unless the testator so expressly
declares.
In the latter case, the creditor shall have the right to
collect the excess, if any, of the credit or of the legacy or
devise. (873a)

In this case, the testator is the debtor

The reason for the legacy is presumed as the


liberality of the testator

But if it is expressly declared by the testator


that the legacy or devise shall be applied to the
debt, then, it may be given effect

But, if it is another kind of property, you cannot


force the creditor to accept something which is not
the obligation
ARTICLE 939.
If the testator orders the payment of what
he believes he owes but does not in fact owe, the disposition
shall be considered as not written. If as regards a specified
debt more than the amount thereof is ordered paid, the
excess is not due, unless a contrary intention appears.
The foregoing provisions are without prejudice to the
fulfillment of natural obligations. (n)

In this case, the testator is allotting a certain


amount of money in payment of his obligation
which he believes to exist, but in fact does not exist

As such, it is considered as not written because


the giving here is impelled by the wrong belief by
the testator

If it is as payment for an obligation, the


estate shall pay only the exact amount which is
due

If the debt of
prescribed but the
payment thereof in
effect because this
OBLIGATION

the testator has already


testator provided for the
his will, it should be given
is governed by NATURAL

ARTICLE 940.
In alternative legacies or devises, the
choice is presumed to be left to the heir upon whom the
obligation to give the legacy or devise may be imposed, or
the executor or administrator of the estate if no particular
heir is so obliged.
If the heir, legatee or devisee, who may have been
given the choice, dies before making it, this right shall pass
to the respective heirs.
Once made, the choice is irrevocable.
In the alternative legacies or devises, except as herein
provided, the provisions of this Code regulating obligations
of the same kind shall be observed, save such modifications
as may appear from the intention expressed by the testator.
(874a)

Article 940 talks about right of choice in an


alternative legacy or devise

This is just like in alternative obligations


wherein the delivery of one of the prestations is
sufficient to extinguish the entire obligation

It is the heir upon whom the obligation to


give the legacy or devise is imposed or if, for
instance there is no heir charged in particular,
the executor or administrator of the estate, who
has the obligation to deliver

If before making the choice, the heir, the


legatee or devisee dies, the right to make the
choice shall be exercised by the heirs of such
heir, legatee or devisee.

This is not a personal right.


This is a
transmissible right.

Once the heir burdened exercised the right of


choice, then the legacy or devise ceases to
become an alternative one. It becomes pure and
simple legacy.

Moreover, once the choice is exercised, that


choice becomes irrevocable

In alternative legacies or devises, the rule in


obligations and contracts with respect to
alternative obligations, is also applied but only in
a suppletory manner because the supreme law
here is really the will of the testator. If anything
in the rule in obligations and contract conflicts
with the will of the testator, then the will of the
testator shall prevail.
ARTICLE 941.
A legacy of generic personal property shall
be valid even if there be no things of the same kind in the
estate.
A devise of indeterminate real property shall be valid
only if there be immovable property of its kind in the estate.
The right of choice shall belong to the executor or
administrator who shall comply with the legacy by the
delivery of a thing which is neither of inferior nor of superior
quality. (875a)

This article talks about the difference in the


rule on generic/indeterminate personal property
and generic/indeterminate real property

The estate has the obligation to deliver such


personal property which is of middle quality. This
depends upon the status of the estate or upon
the situation

But if you are talking of an immovable


property, if there if there is no other immovable
property in the estate, then, the devise is void.

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

The period to reckon if there is really such king


of thing existing in the estate of the testator is at
the time of the death of the testator
ARTICLE 942.
Whenever the testator expressly leaves the
right of choice to the heir, or to the legatee or devisee, the
former may give or the latter may choose whichever he may
prefer. (876a)

This article also talks about alternative legacy


or devise
GENERAL RULE: The right of choice belongs to the
estate, or the heir or legatee or devisee
EXCEPTION: If the testator will give the right of choice
to the heirs or legatee or devisee favored

The legatee or devisee can actually choose


things which are of superior quality or inferior
quality or medium quality. There is no obligation
on his part to choose only the one which is of
medium quality.
ARTICLE 943.
If the heir, legatee or devisee cannot make
the choice, in case it has been granted him, his right shall pass
to his heirs; but a choice once made shall be irrevocable.
(877a)

This is a reiteration of Article 940

Limitations of the right of choice: (in alternative


legacies/devisees
or
in
generic/indeterminate
legacies/devisees)
1. The choice is limited to things alternatively the
object of legacy or devise. If it is a generic
legacy of a car, he can choose only a car. He
cannot choose a house.
2. He cannot choose an illegal or impossible thing
or that which could not have been intended by
the testator.
3. No right of choice when among legacies or
devises only one is practicable.
ARTICLE 944.
A legacy for education lasts until the legatee
is of age, or beyond the age of majority in order that the
legatee may finish some professional, vocational or general
course, provided he pursues his course diligently.
A legacy for support lasts during the lifetime of the
legatee, if the testator has not otherwise provided.
If the testator has not fixed the amount of such legacies,
it shall be fixed in accordance with the social standing and the
circumstances of the legatee and the value of the estate.
If the testator during his lifetime used to give the legatee
a certain sum of money or other things by way of support, the
same amount shall be deemed bequeathed, unless it be
markedly disproportionate to the value of the estate. (879a)

LEGACY OF EDUCATION
GENERAL RULE: The legacy of education lasts up
to the age of majority (18 years old)
EXCEPTION: Beyond the age of majority in order
that the legatee may finish some professional,
vocational or general course, provided he pursues
his course diligently

LEGACY OF SUPPORT
GENERAL RULE: As long as the legatee is alive the
legacy for support lasts
EXCEPTION: The testator can provide otherwise

If the legacy is charged against the estate, then


it should not exceed the value of the free disposal

But if the legacy is charged against an heir or


another legatee, then the value should not exceed
the inheritance of that heir or legatee charged with
the legacy for support or education

ARTICLE 945.
If a periodical pension, or a certain annual,
monthly, or weekly amount is bequeathed, the legatee may
petition the court for the first installment upon the death of
the testator, and for the following ones which shall be due at
the beginning of each period; such payment shall not be
returned, even though the legatee should die before the
expiration of the period which has commenced. (880a)

The heir can petition for his allowance or


pension after the death of the testator for the 1st
installment and for the following ones, which shall
be due at the beginning of each period
When do you petition?
1. The will must be admitted to probate
2. After the will is admitted to probate, the legatee
can
petition the court for the delivery to him of
the allowance provided that the debts and taxes of
the estate have been paid first.
ARTICLE 946.
If the thing bequeathed should be subject
to a usufruct, the legatee or devisee shall respect such right
until it is legally extinguished. (868a)

If the thing is subject to usufruct, the estate


has no obligation to free the thing from the
usufruct because the legatee or devisee has to
respect the usufruct

This is related to Article 934

As long as the charge or burden is not to


secure a recoverable debt, that shall pass on to
the heirs, legatees or devisees
ARTICLE 947.
The legatee or devisee acquires a right to
the pure and simple legacies or devises from the death of
the testator, and transmits it to his heirs. (881a)

A pure and simple legacy or devise is one


that is immediately demandable upon the death
of the testator. It is not subject to a condition, a
term or a mode

As long as the testator is already dead, the


right of the legatee or devisee becomes vested
already. If the legatee or the devisee dies prior
to the delivery of the legacy or devise, his heirs
may enforce the legacy or devise.

It is different if the legatee or devisee dies


ahead of the testator. In that case, the heirs of
the legatee or devisee cannot demand from the
estate. When it comes to the free portion, there
is no right of representation.

If the property is specific, then you acquire


the property from the testators death

If the property is generic, then from the time


of the selection. Although you have right to the
legacy or devise from the time of death but as to
the property itself, you have the right over the
property from the time of selection

If it is alternative, from the time of selection


also

If it is to be acquired from a stranger, from


the time of acquisition

If the legacy or devise is subject to a


condition, as long as the condition is fulfilled, it
retroacts to the death of the testator

If the legacy or devise is subject to a term, if


the legatee or devisee dies prior to the arrival of
the term, he acquired the right from the time of
death but the right to the property vests only
upon the arrival of the term

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

ARTICLE 948.
If the legacy or devise is of a specific and
determinate thing pertaining to the testator, the legatee or
devisee acquires the ownership thereof upon the death of the
testator, as well as any growing fruits, or unborn offspring of
animals, or uncollected income; but not the income which was
due and unpaid before the latter's death.
From the moment of the testator's death, the thing
bequeathed shall be at the risk of the legatee or devisee, who
shall, therefore, bear its loss or deterioration, and shall be
benefited by its increase or improvement, without prejudice to
the responsibility of the executor or administrator. (882a)

This talks about specific or determinate thing

If a parcel of land is devised, growing fruits and


crops at the time of the death of the testator shall
be included in the delivery to the devisee. Those
which are already harvested or gathered no longer
form part of the devise or legacy. Only the growing
crops are included, by virtue of accession.

Unborn offsprings are also included

Uncollected
income
are
also
include.
Uncollected income are income that should have
accrued after the death of the testator

RIGHT OF ADEMPTION is the process of


giving effect inter vivos to a disposition mortis
causa. He wants to give effect to the legacy
intervivos which is disposition mortis causa
during the lifetime of the testator because the
testator says the legacy is to be effective if and
only if I have not done this during my lifetime.
ARTICLE 949.
If the bequest should not be of a specific
and determinate thing, but is generic or of quantity, its fruits
and interests from the time of the death of the testator shall
pertain to the legatee or devisee if the testator has
expressly so ordered. (884a)

In Article 949, the devise or legacy is a


generic thing

Money is generic, unless serial number is


provided

The interest accrues only from the time of


default. There is default when there is already
demand.

Accrued means it is already due and


demandable

After-acquired properties (under Article 793)


are not to be included because they were acquired
after the institution of the will up to the time before
the death of the testator

GENERAL RULE: The right to the fruit does not pertain


to the legatee/devisee prior to selection and even
after the death of the testator
EXCEPTION: If the testator expressly provides that
the legatee/devisee will still get the fruits prior to
selection

ARTICLE 781 NEW CIVIL CODE. The inheritance of a


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

ARTICLE 950.
If the estate should not be sufficient to
cover all the legacies or devises, their payment shall be
made in the following order:
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the testator to be
preferential;
(3) Legacies for support;
(4) Legacies for education;
(5) Legacies or devises of a specific, determinate thing
which forms a
part of the estate;
(6) All others pro rata. (887a)

ARTICLE 793 NEW CIVIL CODE. Property


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

2nd paragraph provides that from the moment


of death, the legatee or devisee becomes the
owner.
We have the principle of res perit
domino, wherein the owner bears the risk of the
loss. But he shall also bear the benefit of the
improvement.

But if the loss is by fault of anyone other than


the legatee/devisee, apply the rule on quasi-delict
or obligations and contracts.

Example: If there is a delay in the delivery of


the thing given as legacy/devise and the
legatee/devisee already demanded for it, and the
thing is lost before the delivery, the estate, the heir
or legatee or devisee burdened shall bear the loss.

The heir of the legatee/devisee in Article 948


need not pay the testator for the expenses with
respect to the production under Article 443. The
testator is not considered as a third person. The
legatee/devisee is merely succeeding to the rights
of the testator
Article 443 NEW CIVIL CODE. He who receives the
fruits has the obligation to pay the expenses made
by a third person in their production, gathering and
preservation.

Applicability of Article 948:


1. Simple and pure legacy/devise
2. Legacies and devises subject to resolutory
condition
3. Legacies and devises subject to suspensive
condition in view of the retroactive effect of the
condition once it is fulfilled
Bar Question: What is a Right of Ademption?

Article 950 talks about the order of payment


if the estate is not sufficient to pay all the
legacies or devises (RPSESA)

R remuneratory legacies or devises


P - preferred
S - support
E - education
S specific things
A all others
1. Remuneratory legacies or devises

Those which are made by the testator in


consideration of the service made by the legatee
or devisee but that which does not constitute a
recoverable debt
2. Preferred legacy or devise

Those which are declared by the testator to


be preferred
3. Support

Under the Family Code, support comprises


everything indispensable food, shelter, clothing,
education.

In succession, if we are talking of support, we


do not include education
4. Education
5. Specific Legacy or Devise

Even if it is specific legacy or devise but it is


not yet on the estate and it is to be acquired from
another person or another estate, it is not
included in the legacy or devise of a specific
determinate thing. If the legacy/devise is to be
taken from another person to be given to the
legatee/devisee, that falls under all others prorata
6. Among all other pro-rata

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Order under Article 911:


1. Legitime

2.
3.

4.

Donations inter vivos


Preferred legacies/devises
All others pro rata

Article 911
This article is applied
when
there
is/are
compulsory
heir/s
AND/OR
there
are
donations inter vivos

Article 950
This article is applied when
there NO compulsory heirs
and their legitimes are in
danger of being impaired
AND/OR there are NO
donations inter vivos. All
you have to do is, among
the legacies/devises which
of them should be given
priority over the other. If
there are compulsory heirs
but their legitimes are not
impaired, you apply Article
950.

If there are no compulsory heirs, there is no


need to collate the donations because the purpose
of collation is only to determine the legitime.
ARTICLE 951.
The thing bequeathed shall be delivered
with all its accessions and accessories and in the condition in
which it may be upon the death of the testator. (883a)
ARTICLE 952.
The heir, charged with a legacy or devise, or
the executor or administrator of the estate, must deliver the
very thing bequeathed if he is able to do so and cannot
discharge this obligation by paying its value.
Legacies of money must be paid in cash, even though the
heir or the estate may not have any.
The expenses necessary for the delivery of the thing
bequeathed shall be for the account of the heir or the estate,
but without prejudice to the legitime. (886a)

The obligation of the heir, legatee, devisee or


estate charged is to deliver the very same thing to
be given

The estate cannot just discharge the legacy or


devise by paying the value of the thing devised or
bequeathed

The debts and obligations of the estate must


first be paid and afterwards, if there is excess, we
now have the delivery of the legacy, devise or
inheritance.
ARTICLE 954.
The legatee or devisee cannot accept a
part of the legacy or devise and repudiate the other, if the
latter be onerous.
Should he die before having accepted the legacy or
devise, leaving several heirs, some of the latter may accept
and the others may repudiate the share respectively
belonging to them in the legacy or devise. (889a)

This article refers to one legacy or devise,


which partly onerous and partly gratuitous

The devisee cannot just accept the part which


has no burden imposed and repudiate the part
which is onerous

But he can choose to accept the onerous and


reject the gratuitous part

If the legatee or devisee dies, his right may


be exercise by his heirs
ARTICLE 955.
The legatee or devisee of two legacies or
devises, one of which is onerous, cannot renounce the
onerous one and accept the other. If both are onerous or
gratuitous, he shall be free to accept or renounce both, or to
renounce either. But if the testator intended that the two
legacies or devises should be inseparable from each other,
the legatee or devisee must either accept or renounce both.
Any compulsory heir who is at the same time a legatee
or devisee may waive the inheritance and accept the legacy
or devise, or renounce the latter and accept the former, or
waive or accept both. (890a)

Article 955 refers to two or more legacies or


devises

The same rule - the legatee or devisee cannot


renounce the onerous and accept the gratuitous.

If both are onerous or gratuitous, he can just


accept or renounce both or either, unless the
testator intends that the two legacies or devises
shall be inseparable

A compulsory heir who is a legatee or


devisee, may waive his inheritance and accept
the legacy or either way, accept the inheritance
and renounce the legacy or accept both or
renounce both

ARTICLE 956.
If the legatee or devisee cannot or is
unwilling to accept the legacy or devise, or if the legacy or
devise for any reason should become ineffective, it shall be
merged into the mass of the estate, except in cases of
substitution and of the right of accretion. (888a)

If the legacy is for cash, even if the estate has


no cash, the estate has to sell property so that it
may generate cash

Even in alternative legacies/devises, you have


to deliver the thing which is contemplated within
the selection
The burdened heir, legatee/devisee or the
estate shall bear the expenses for the delivery of
the thing bequeathed or devised.
If he is a
compulsory heir, the expenses should not such as
to affect the legitime of compulsory heir.
ARTICLE 953.
The legatee or devisee cannot take
possession of the thing bequeathed upon his own authority,
but shall request its delivery and possession of the heir
charged with the legacy or devise, or of the executor or
administrator of the estate should he be authorized by the
court to deliver it. (885a)

There should be an authority by the court that


the thing shall now be delivered to the legatee or
devisee

A legatee or devisee, from the moment of


death, theoretically, is already entitled to the
legacy or devise.
But he cannot immediately
demand the delivery because there has to be
proceedings conducted.

We are talking of testate proceedings because


this is legacy or devise.

If the legatee or devisee does not want to


accept or cannot accept or is disqualified from
accepting, it shall be merged into the mass of the
estate. It shall go by way of legal succession,
subject to the rights of substitution and the rights
of accretion

Remember that we have the rule on ISRAI as


to the order which has to be followed in case
there is vacancy in the portion inherited:
1. INSTITUTION
2. SUBSTITUTION
3. REPRESENTATION
4. ACCRETION
5. INTESTATE SUCCESSION
ARTICLE 957.
The legacy or devise shall be without
effect:
(1) If the testator transforms the thing bequeathed in such
a manner
that it does not retain either the form or
the denomination it had;

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

(2) If the testator by any title or for any cause alienates the
thing
bequeathed or any part thereof, it being understood
that in the
latter case the legacy or devise shall be
without effect only with
respect to the part thus alienated. If
after the alienation the thing
should again belong to the
testator, even if it be by reason of nullity of the contract, the
legacy or devise shall not thereafter be
valid, unless the
reacquisition shall have been effected by virtue of
the
exercise of the right of repurchase;
(3) If the thing bequeathed is totally lost during the lifetime of
the testator, or after his death without the heir's fault.
Nevertheless,
the person obliged to pay the legacy or
devise shall be liable for eviction if the thing bequeathed
should not have been
determinate as to its kind, in
accordance with the provisions of Article 928. (869a)

Article 957 talks of revocation of a legacy or


devise by operation of law. Because of the act
performed by the testator, the law presumes that
there is revocation.
1. TRANSFORMS THE THING

The thing here refers to a specific thing


because if it is a generic thing then you do not
know prior to selection which of the thing in
the estate of the testator is being bequeathed
or devised
The transformation must be IN FORM
(appearance of the thing) or IN DENOMINATION
(name being given to the thing)

When the testator transforms the thing such


that it does not retain the form or the
denomination
it
had,
then,
there
is
REVOCATION of the legacy or devise and the
legacy/devise becomes ineffective
2. ALIENATES THE THING
The alienation made by the testator should be
made with the intent to part with the thing
If the testator alienates PART of the property
then the revocation is only as to the part
alienated. So only partial not entire revocation

If after the alienation the thing should again


belong to the testator, the law says the legacy
or devise shall not thereafter be valid
Even if the alienation was void by reason of
nullity of the contract so that the property
returns to the testator, still the legacy or devise
shall not be valid
If the alienation was annulled because there
was fraud or intimidation or mistake on the part
of the testator, the devise would be valid
because the law presupposes a voluntary
alienation by the testator
If the reacquisition shall have been effected by
virtue of the exercise of the right repurchase,
the devise or legacy would still be valid

The right to repurchase must be included in the


contract of sale itself or in the contract wherein
the testator alienated the thing devised or
bequeathed because if it is an absolute sale
and then, subsequently, he repurchases the
property, the devise should be void or it is
revoked
If subsequently, the legatee or devisee acquires
the thing devised or bequeathed, then, it
depends whether or not his acquisition is by
onerous title or by gratuitous title
3. LOST OF THE THING

A thing is considered LOST when it perishes,


goes out of commerce or disappears in such a
way that its existence is unknown or it cannot
be recovered
The thing is lost WITHOUT the fault of the
testator

If the loss is the fault of the heir charged with


the obligation to deliver, then, the heir has
the obligation to pay the legatee for the value
of the thing lost
When the thing is not specific, it is generic or
determinate, then the choice pertains to the
estate or the legatee/devisee or the heir
charged, in which case they should not
deliver a thing which has defect

ARTICLE 958.
A mistake as to the name of the thing
bequeathed or devised, is of no consequence, if it is possible
to identify the thing which the testator intended to bequeath
or devise. (n)

This article is related to Article 789 and 844

If there is a mistake as to the name of the


thing, it is still possible to determine what is the
thing referred to by the testator as a devise or
legacy. You can use the rules of interpretation,
especially, those rules in latent or patent
ambiguity.

So, the devise or legacy remains valid


ARTICLE 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. (751)

Article 959 talks of a COLLECTIVE


INSTITUTION, wherein there is a disposition
made in general terms in favor of the testators
relatives

Under this article, the only rule to be followed


is the RULE OF PROXIMITY, the nearer relatives
exclude the farther.

There is no right of representation here and


we do not follow the rule that those who are in
the descending line are favored over those in the
ascending line and that those who are in the
direct line are favored over those who are in the
collateral line. We just follow one rule.

The law recognizes only those who are within


the 5th degree within the collateral line as the
legal relatives of the testator. If there are no
relatives within that line, then, the estate shall be
given in favor of the State.

If it is a direct line, there is no limit. But if


you are talking of a collateral line, only within the
5th degree of consanguinity.

If the testators words are to all those who


are entitled thereto, he would be referring to the
legal or intestate heirs. We follow the rule on
intestate succession and thus, we are not limited
by only one rule on proximity.

If the testator says I am giving this house


and lot to the relatives of my wife, Article 959
cannot be applied because Article 959 only refers
to the testators relatives.
CHAPTER 3
Legal or Intestate Succession
SECTION 1
General Provisions
ARTICLE 960.
Legal or intestate succession takes
place:
(1) If a person dies without a will, or with a void will, or one
which
has subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of
all the property belonging to the testator. In such case,
legal succession shall take place only with respect to the
property of which the
testator has not disposed;
(3) If the suspensive condition attached to the institution of
heir does
not happen or is not fulfilled, or if the heir

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

dies before the testator, or repudiates the inheritance, there


being no
substitution, and no right of accretion takes
place;
(4) When the heir instituted is incapable of succeeding,
except in
cases provided in this Code. (912a)

will

the

Article 960 gives you the instances when there


be legal or intestate succession
In legal or intestate succession it is based on
presumed will of the testator

1. Without a will, void will or subsequently lost


its validity

If a person dies without a will, his estate will go


by legal succession

The will becomes void when it does not comply


with the formalities required by law

By virtue of the revocation, the will loses


validity. Therefore, you cannot give effect to
the will and the estate will be disposed of by
way of intestacy
2. No institution of heir

An example is when the will only provides for


disinheritance wherein the will is effective as to
the disinheritance and the rest of the estate
shall go by intestate succession

The will does not dispose of all the property


belonging to the testator. In this case, there is
mixed succession
3. Suspensive
condition
is
not
fulfilled,
predecease, repudiates

Suspensive condition is one wherein the


institution is subject to the fulfillment of a
condition. If the condition does not happen, the
institution cannot be given effect.

If the heir dies ahead of the testator and


there is no representative to succeed, then,
there is intestate succession

In case of repudiation, there being no


substitution, no representative and no right of
accretion then, there is intestacy.
4. Incapacity

If incapacitated, it shall go by way of legal


succession

Other instances where legal


succession takes place:
1. Preterition
2. Improper disinheritance

3.
4.

or

intestate

Fulfillment of a resolutory condition


Arrival of the resolutory period

Forced Succession
Succession
to
the
legitime regardless of
the will of the testator.
Even if it is against the
desire of the testator,
but
the
heirs
are
compulsory heirs then,
the testator has to give
to these compulsory
heirs.

Legal/intestate
succession
The
dispositions
provided
for
by
because it is based on
presumed will of
testator.

This article does not yet talk about the


preference or order but as to who are entitled to
the estate in default of testamentary heirs

Not all legal/intestate heirs are compulsory


heirs. But all compulsory heirs are legal heirs.

Brothers and sisters are legal heirs but they


are not compulsory heirs

There is no disinheritance in legal succession


because disinheritance occurs only when there is
a will and that the will must be a valid will

But there is EXCLUSION where legal heirs


who are NOT compulsory heirs are not given
anything in the will

Even if you can exclude a legal heir who is


not a compulsory heir, you cannot exclude the
State

If you do not have heirs within the 5 th degree


then, the property has to go to the State

There is representation of the excluded legal


heirs
Kinds of exclusion:
1) Express Exclusion
2) Implied Exclusion
ARTICLE 962.
In every inheritance, the relative nearest
in degree excludes the more distant ones, saving the right
of representation when it properly takes place.
Relatives in the same degree shall inherit in equal
shares, subject to the provisions of article 1006 with respect
to relatives of the full and half blood, and of article 987,
paragraph 2, concerning division between the paternal and
maternal lines. (921a)

RULE ON PROXIMITY

The legal and intestate heirs of the decedent


are
legitimate
children
and
descendants,
illegitimate children or descendants.
In the

The nearer excludes the farther

RULE OF EQUAL DIVISION


GENERAL RULE: Relatives in the same degree shall
inherit in equal share
EXCEPTIONS:
(1)
Article 1006 with respect to the
relatives of full blood and half blood. In legal
succession, the full blood relatives are entitled to
twice as much as those of the half-blood
relatives.
(2)
Article 987 concerning the division
between the maternal and paternal lines
(3)
Right of representation
(4)
In legal succession and the same in
testamentary succession, illegitimate children
only get of the share of one legitimate child.

are
law
the
the

ARTICLE 961.
In default of testamentary heirs, the law
vests the inheritance, in accordance with the rules hereinafter
set forth, in the legitimate and illegitimate relatives of the
deceased, in the surviving spouse, and in the State. (913a)

absence of the legitimate children, the legitimate


parents or ascendants, we have the surviving
spouse and the state.

SUBSECTION 1
Relationship
ARTICLE 963.
Proximity of relationship is determined by
the number of generations. Each generation forms a degree.
(915)

Relationship is blood (consanguinity) or


marriage (affinity) tie uniting a person to another
person
ARTICLE 964.
A series of degrees forms a line, which
may be either direct or collateral.
A direct line is that constituted by the series of degrees
among ascendants and descendants.

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

A collateral line is that constituted by the series of


degrees among persons who are not ascendants and
descendants, but who come from a common ancestor. (916a)
ARTICLE 965.
The direct line is either descending or
ascending.
The former unites the head of the family with those who
descend from him.
The latter binds a person with those from whom he
descends. (917)
ARTICLE 966.
In the line, as many degrees are counted as
there are generations or persons, excluding the progenitor.
In the direct line, ascent is made to the common ancestor.
Thus, the child is one degree removed from the parent, two
from the grandfather, and three from the great-grandparent.
In the collateral line, ascent is made to the common
ancestor and then descent is made to the person with whom
the computation is to be made. Thus, a person is two degrees
removed from his brother, three from his uncle, who is the
brother of his father, four from his first cousin, and so forth.
(918a)
ARTICLE 967.
Full blood relationship is that existing
between persons who have the same father and the same
mother.
Half blood relationship is that existing between persons
who have the same father, but not the same mother, or the
same mother, but not the same father. (920a)
ARTICLE 968.
If there are several relatives of the same
degree, and one or some of them are unwilling or
incapacitated to succeed, his portion shall accrue to the others
of the same degree, save the right of representation when it
should take place. (922)
ARTICLE 969.
If the inheritance should be repudiated by
the nearest relative, should there be one only, or by all the
nearest relatives called by law to succeed, should there be
several, those of the following degree shall inherit in their own
right and cannot represent the person or persons repudiating
the inheritance. (923)

This article talks about what happens when


there is repudiation

The person who repudiates the inheritance


CANNOT be represented
SUBSECTION 2
Right of Representation
ARTICLE 970.
Representation is a right created by fiction
of law, by virtue of which the representative is raised to the
place and the degree of the person represented, and acquires
the rights which the latter would have if he were living or if he
could have inherited. (924a)

Instances where there is right of representation:


1)
Predecease
2)
Incapacity
3)
Disinheritance

The right of representation takes place in both


testate and intestate succession

Disinheritance is only in testate succession


because you have to have a will

In testate succession, representation covers


only the legitime

In legal or intestate succession, the right of


representation, when proper, covers ALL that the
person being represented would have inherited

ARTICLE 971.
The representative is called to the
succession by the law and not by the person represented.
The representative does not succeed the person
represented but the one whom the person represented
would have succeeded. (n)

Representative inherits not from the person


represented but from the person to whom the
person represented would have inherited
ARTICLE 972.
The right of representation takes place in
the direct descending line, but never in the ascending.
In the collateral line, it takes place only in favor of the
children of brothers or sisters, whether they be of the full or
half blood. (925)

In the collateral
line, the right of
representation takes place only in favor of the
children of brothers or sisters (nephews or
nieces)

Right of representation never takes place in


the ascending line
ARTICLE 973.
In order that representation may take
place, it is necessary that the representative himself be
capable of succeeding the decedent. (n)

The representative must be capacitated to


inherit
ARTICLE 974.
Whenever
there
is
succession
by
representation, the division of the estate shall be made per
stirpes, in such manner that the representative or
representatives shall not inherit more than what the person
they represent would inherit, if he were living or could
inherit. (926a)

Remember that PER STIRPES means


inheritance by all those within the group
inheriting in equal shares
ARTICLE 975.
When children of one or more brothers or
sisters of the deceased survive, they shall inherit from the
latter by representation, if they survive with their uncles or
aunts. But if they alone survive, they shall inherit in equal
portions. (927)
ARTICLE 976.
A person may represent
inheritance he has renounced. (928a)

him

whose

ARTICLE 977.
Heirs who repudiate their share may not
be represented. (929a)

A renouncer may represent but he may not


be represented

A renouncer, for motives of his own, does so


voluntarily. His act of repudiation takes away his
right to dispose of the property

In cases of incapacity or disinheritance,


however, the loss is involuntary. The children of
the incapacitated or disinherited person should
not be deprived of the right of representation.
They should not suffer for having an unworthy
parent
SECTION 2
Order of Intestate Succession
SUBSECTION 1
Descending Direct Line

The right of representation covers not only the


properties but also the transmissible rights and
obligations

In adoption, the relationship that is created is


only between the adopter and the adoptee

If the adopter dies ahead of his parents, the


adoptee cannot represent the adopter

The adoptee can inherit from the adopter


An adopted child cannot represent
Neither may an adopted child be represented

ARTICLE 978.
Succession pertains, in the first place, to
the descending direct line. (930)

Descendants are preferred

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

The nearer excludes the farther

Compulsory
heirs,
with
the
legitimate
descendant, are concurrent intestate heirs
ARTICLE 979.
Legitimate children and their descendants
succeed the parents and other ascendants, without distinction
as to sex or age, and even if they should come from different
marriages.
An adopted child succeeds to the property of the adopting
parents in the same manner as a legitimate child. (931a)
ARTICLE 980.
The children of the deceased shall always
inherit from him in their own right, dividing the inheritance in
equal shares. (932)

This is true even if the children come from


different marriages, for after all, the dead parent is
the common parent
ARTICLE 981.
Should children of the deceased and
descendants of other children who are dead, survive, the
former shall inherit in their own right, and the latter by right of
representation. (934a)
ARTICLE 982.
The grandchildren and other descendants
shall inherit by right of representation, and if any one of them
should have died, leaving several heirs, the portion pertaining
to him shall be divided among the latter in equal portions.
(933)

When the children are ALL dead, the


grandchildren inherit by right of representation,
provided that representation is proper

When ALL the children repudiate, there is no


right of representation and therefore the
grandchildren inherit in heir own right, per capita
and in equal portions
ARTICLE 983.
If
illegitimate
children
survive
with
legitimate children, the shares of the former shall be in the
proportions prescribed by article 895. (n)

The shares of the illegitimate children are to be


taken only from the half, which is the free portion
ARTICLE 984.
In case of the death of an adopted child,
leaving no children or descendants, his parents and relatives
by consanguinity and not by adoption, shall be his legal heirs.
(n)

The adopted child shall become the legal heir of


his adoptive parents and shall also remain the legal
heir of his natural parents

In case of the death of the adopted child, his


parents and relatives by nature, and not by
adoption, shall be his legal heirs
SUBSECTION 2
Ascending Direct Line
ARTICLE 985.
In default of legitimate children and
descendants of the deceased, his parents and ascendants
shall inherit from him, to the exclusion of collateral relatives.
(935a)

Parents and ascendants referred to in this


article should be legitimate
ARTICLE 986.
The father and mother, if living, shall inherit
in equal shares.
Should one only of them survive, he or she shall succeed
to the entire estate of the child. (936)
ARTICLE 987.
In default of the father and mother, the
ascendants nearest in degree shall inherit.
Should there be more than one of equal degree belonging
to the same line they shall divide the inheritance per capita;
should they be of different lines but of equal degree, one-half

shall go to the paternal and the other half to the maternal


ascendants. In each line the division shall be made per
capita. (937)

SUBSECTION 3
Illegitimate Children
ARTICLE 988.
In the absence of legitimate descendants
or ascendants, the illegitimate children shall succeed to the
entire estate of the deceased. (939a)
ARTICLE 989.
If, together with illegitimate children,
there should survive descendants of another illegitimate
child who is dead, the former shall succeed in their own
right and the latter by right of representation. (940a)

Descendants in this article refers to


legitimate and illegitimate descendants, since the
law does not distinguish

The grandchildren inherit by right of


representation in order not to prejudice the
children left
ARTICLE 990.
The hereditary rights granted by the two
preceding articles to illegitimate children shall be
transmitted upon their death to their descendants, who shall
inherit by right of representation from their deceased
grandparent. (941a)

According to Paras, it is believed that Articles


989 and 990 apply not only to predecease but
also to incapacity and disinheritance

In repudiation, there is no right of


representation
ARTICLE 991.
If legitimate ascendants are left, the
illegitimate children shall divide the inheritance with them,
taking one-half of the estate, whatever be the number of the
ascendants or of the illegitimate children. (942, 841a)

If illegitimate children survive with legitimate


ascendants, the sharing would be one-half

When there are illegitimate children and no


legitimate children, the legitimate ascendants
inherit half in intestate succession

When
there
are
legitimate
children,
legitimate ascendants are excluded

Although illegitimate children are placed 3rd in


the order of intestate succession, the presence of
the legitimate descendants and ascendants does
not exclude them. They are concurring intestate
heirs.
GENERAL RULE for all cases of PARTIAL INTESTACY:
Charge the legacies to the intestate shares of
those given by law on intestate succession more than
their respective legitimes, without impairing said
legitimes.
Moreover, the charging must be
proportionate to the amount in the intestate share
over and above that given by law as legitime.
ARTICLE 992.
An illegitimate child has no right to inherit
ab intestato from the legitimate children and relatives of his
father or mother; nor shall such children or relatives inherit
in the same manner from the illegitimate child. (943a)

Article 992 is the Principle of Absolute


Separation with the legitimate family and the
illegitimate family.
There is Reciprocal
prohibition. This is prohibition is also called the
IRON-CLAD BARRIER.

If the person to be represented is an


ILLEGITIMATE, he can be represented by his
legitimate and illegitimate children

If the person to represented is a LEGITIMATE


child, he can only be represented by his own
legitimate children

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Articles 902, 989 &


992
General Rule:
These
speak of the successional
right
of
illegitimate
children which rights are
transmitted
to
their
descendant upon their
death whether legitimate
or illegitimate.

Article 992
Exception:
Even
if
illegitimate children have
the right to succeed from
their parents they cannot
inherit
from
the
RELATIVE
of
their
parents.

Table of Intestate Shares:


Illegitimate Children
Surviving Spouse
Illegitimate Children
Surviving spouse
Legitimate Parents
Illegitimate Children -
Legitimate Parents
Legitimate Parents
Surviving Spouse
Illegitimate Parents
Surviving Spouse
Surviving spouse
Brothers
&
nieces,
nephews & nieces

Illegitimate Child alone


ALL
Legitimate Parents Alone
All
Illegitimate Parents Alone
All
Surviving Spouse Alone All
Legitimate Child Alone
All
1 Legitimate Child
Surviving spouse
2 or more legitimate child
)
Surviving spouse )
Co
nsider
spouse
as
1
legitimate
child
and
divide estate by total
number

ARTICLE 993.
If an illegitimate child should die without
issue, either legitimate or illegitimate, his father or mother
shall succeed to his entire estate; and if the child's filiation is
duly proved as to both parents, who are both living, they shall
inherit from him share and share alike. (944a)
ARTICLE 994.
In default of the father or mother, an
illegitimate child shall be succeeded by his or her surviving
spouse, who shall be entitled to the entire estate.
If the widow or widower should survive with brothers and
sisters, nephews and nieces, she or he shall inherit one-half of
the estate, and the latter the other half. (945a)

Heirs of the ILLEGITIMATE CHILD:


1. Legitimate children and other legitimate
descendants
2. Illegitimate children and other descendants
3. Illegitimate parents; ( NB: An illegitimate child
has no legitimate ascendants)
4. Surviving spouse
5. Illegitimate brothers and sisters subject to
article 992;
6. Nephews & nieces subject to rule in article 992
(because nephews & nieces who are legitimate
cannot inherit from the illegitimate child.)
7. Other collateral relatives up to the 5th civil
degree of consanguinity
8. The State
Heirs of the LEGITIMATE CHILD:
1. Legitimate children and heir legitimate
descendants
2. Legitimate parents and other legitimate
ascendants
3. Illegitimate children and their descendants

4.

Surviving spouse, without prejudice to the


rights of brothers & sisters, nephews & nieces
should there be any

5.
6.
7.
8.

Brothers & sisters subject to Article 992.


(Illegitimate brothers & sisters cannot inherit
from him)
Nephews & nieces subject to Article 992;
Collateral relatives up to the 5th degree
subject to Article 992
The State.

Legitimate children excludes the parents,


brothers & sisters, nephews & nieces and other
collateral relatives

Legitimate children concur with the spouse

Illegitimate children concur with the spouse

Illegitimate excludes brothers & sisters,


nephews & nieces of the deceased

Parents also excludes the brothers & sisters,


nephews & nieces and other collateral relatives

Parents concur with the surviving spouse

Surviving spouse concur with the brothers &


sisters or nephews & nieces of the deceased
SUBSECTION 4
Surviving Spouse
ARTICLE 995.
In the absence of legitimate descendants
and ascendants, and illegitimate children and their
descendants, whether legitimate or illegitimate, the
surviving spouse shall inherit the entire estate, without
prejudice to the rights of brothers and sisters, nephews and
nieces, should there be any, under Article 1001. (946a)
ARTICLE 996.
If a widow or widower and legitimate
children or descendants are left, the surviving spouse has in
the succession the same share as that of each of the
children. (834a)

Article 996 speaks of children, and does not


expressly provide for a case when there is only
one legitimate child, unlike in the case of the
legitime

If there is only one legitimate child concurring


with the surviving spouse and there are no other
relatives, both will get equal intestate shares, in
accordance with the clear intent of the law to
consider the spouse as a child
ARTICLE 997.
When the widow or widower survives with
legitimate parents or ascendants, the surviving spouse shall
be entitled to one-half of the estate, and the legitimate
parents or ascendants to the other half. (836a)
ARTICLE 998.
If a widow or widower survives with
illegitimate children, such widow or widower shall be
entitled to one-half of the inheritance, and the illegitimate
children or their descendants, whether legitimate or
illegitimate, to the other half. (n)
ARTICLE 999.
When the widow or widower survives with
legitimate children or their descendants and illegitimate
children or their descendants, whether legitimate or
illegitimate, such widow or widower shall be entitled to the
same share as that of a legitimate child. (n)
ARTICLE 1000. If legitimate ascendants, the surviving
spouse, and illegitimate children are left, the ascendants
shall be entitled to one-half of the inheritance, and the other
half shall be divided between the surviving spouse and the
illegitimate children so that such widow or widower shall
have one-fourth of the estate, and the illegitimate children
the other fourth. (841a)
ARTICLE 1001. Should brothers and sisters or their
children survive with the widow or widower, the latter shall
be entitled to one-half of the inheritance and the brothers
and sisters or their children to the other half. (953, 837a)

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Brothers and sisters do not concur with


recognized illegitimate children of the deceased. In
fact, the former are excluded by the latter.
ARTICLE 1002. In case of a legal separation, if the surviving
spouse gave cause for the separation, he or she shall not have
any of the rights granted in the preceding articles. (n)

Rules for SURVIVING SPOUSE:


The decedent and the surviving spouse must be
legally married.
The surviving spouse must not be the guilty
party when there is legal separation.

There must be a decree of legal separation. If


there is no decree, she is not disqualified but
she can be disinherited.

If there is a reconciliation between the


surviving spouse and the decedent prior to the
death of the decedent, even if there is a decree
of legal separation, the surviving spouse is now
qualified.

In intestate succession there is no similar rule


on death in articulo mortis.

If there is a surviving spouse with 1 legitimate


child and 1 illegitimate child, there is no such
provision in intestate succession applicable in
this case. The rule is, give to the legitimate
child then the illegitimate child gets of the
share of the legitimate child (same as testate
succession).
The spouse gets the remainder
(which is ) because in testate succession the
spouse gets .

If there is partial intestacy, you charge the


legacy/devise to the share of one gets more by
intestacy than by testacy. In testate, the share
of the spouse concurring with the parent is ,
while in intestacy . As long as the legitime of
the surviving spouse is not impaired.
SUBSECTION 5
Collateral Relatives

ARTICLE 1003. If there are no descendants, ascendants,


illegitimate children, or a surviving spouse, the collateral
relatives shall succeed to the entire estate of the deceased in
accordance with the following articles. (946a)

The collaterals referred to in this article are


intestate, but not compulsory heirs

Among said collaterals, the nearer excludes the


farther

Collaterals cannot inherit in the presence of


descendants
ARTICLE 1004. Should the only survivors be brothers and
sisters of the full blood, they shall inherit in equal shares.
(947)
ARTICLE 1005. Should brothers and sisters survive together
with nephews and nieces, who are the children of the
descendant's brothers and sisters of the full blood, the former
shall inherit per capita, and the latter per stirpes. (948)

Although it is a fact that brothers and sisters of


a decedent, and their children, are collateral heirs,
they are not given any share in the inheritance if
there is a will instituting the widow as the sole heir
of the estate
ARTICLE 1006. Should brothers and sisters of the full blood
survive together with brothers and sisters of the half blood,
the former shall be entitled to a share double that of the latter.
(949)

The relative of the full blood does not exclude


the relatives of the half-blood

ARTICLE 1007. In case brothers and sisters of the half


blood, some on the father's and some on the mother's side,
are the only survivors, all shall inherit in equal shares
without distinction as to the origin of the property. (950)
ARTICLE 1008. Children of brothers and sisters of the half
blood shall succeed per capita or per stirpes, in accordance
with the rules laid down for brothers and sisters of the full
blood. (915)
ARTICLE 1009. Should there be neither brothers nor
sisters, nor children of brothers or sisters, the other
collateral relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or
preference among them by reason of relationship by the
whole blood. (954a)

If the deceased is survived by children of a


predeceased full blood sister, and by children of a
predeceased half blood brother, each of the first
group gets twice the share of each of the second
group

The absence of brothers, sisters, nephews,


and nieces of the decedent is a precondition of
the other collaterals
ARTICLE 1010. The right to inherit ab intestato shall not
extend beyond the fifth degree of relationship in the
collateral line. (955a)

The collateral relatives are the brothers,


sisters, nephews and nieces, and the uncles and
aunts and cousins.
Rules for COLLATERAL RELATIVES:

The nearer relative excludes the


farther subject to the right of representation
when proper.

If they are all in the same degree,


those who are in direct line are preferred over
those who are in the collateral line

If both are in the direct line, those


who are in the descending line are favored over
those who are in the ascending line. That is
why the descendants excludes the parents or
ascendants.

If both are in the collateral and the


same degree, those who are in the descending
are favored over those in the ascending. That
is why the nephews & nieces are favored over
the uncles & aunts.

All of the brothers & sisters on the full


blood will inherit in equal shares.

Those who are in the half blood, as


long as married, not illegitimate, entitled to
of the share of the full blood.

With respect to the heirs in the


collateral line, the right of representation
extends only to the nephews & nieces (children
of brothers & sisters).

Grandnephews & nieces and the


great grandnephews & nieces can no longer
represent.

Between uncles & aunts vis--vis the


nephews & nieces, the nephews & nieces are
preferred

SUBSECTION 6
The State
ARTICLE 1011. In default of persons entitled to succeed in
accordance with the provisions of the preceding Sections,
the State shall inherit the whole estate. (956a)

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

1.
ARTICLE 1012. In order that the State may take possession
of the property mentioned in the preceding article, the
pertinent provisions of the Rules of Court must be observed.
(958a)

Rule 91 (Escheats) of the Rules of Court shall


be observed
ARTICLE 1013. After the payment of debts and charges, the
personal property shall be assigned to the municipality or city
where the deceased last resided in the Philippines, and the
real estate to the municipalities or cities, respectively, in
which the same is situated.
If the deceased never resided in the Philippines, the whole
estate shall be assigned to the respective municipalities or
cities where the same is located.
Such estate shall be for the benefit of public schools, and
public
charitable institutions
and centers, in
such
municipalities or cities. The court shall distribute the estate as
the respective needs of each beneficiary may warrant.
The court, at the instance of an interested party, or on its
own motion, may order the establishment of a permanent
trust, so that only the income from the property shall be used.
(956a)

While the State actually inherits, still


assignment of the properties to the proper
municipalities must be made

The law makes a distinction as to whether or


not the deceased resided in the Philippines
ARTICLE 1014. If a person legally entitled to the estate of
the deceased appears and files a claim thereto with the court
within five years from the date the property was delivered to
the State, such person shall be entitled to the possession of
the same, or if sold, the municipality or city shall be
accountable to him for such part of the proceeds as may not
have been lawfully spent. (n)

In the absence of ALL those in the direct line


and ALL those within the 5th degree in the collateral
line, the State succeeds

CADUCIARY RIGHT is the right of the state to


succeed

A claim must be filed within 5 years from the


date the property was delivered to the State
CHAPTER 4
Provisions Common to Testate and Intestate
Successions
SECTION 1
Right of Accretion
ARTICLE 1015. Accretion is a right by virtue of which, when
two or more persons are called to the same inheritance,
devise or legacy, the part assigned to the one who renounces
or cannot receive his share, or who died before the testator, is
added or incorporated to that of his co-heirs, co-devisees, or
co-legatees. (n)

Accretion is based on the presumed will of the


testator that he prefers to give certain properties to
certain individuals rather than that the property
shall go by way of intestacy

Accretion is proper in both testate and intestate


succession

In testate succession, it is proper only with


respect to the free portion

In intestate succession, it is proper with the


entire portion

2.
3.

4.

There is only one inheritance, devise or


legacy (unity of object);
Plurality of subjects there must be at least 2
or more heirs, devisees of legatees instituted.
There is a vacant portion meaning, one of
the heirs, devises, legatees instituted cannot
succeed.
Acceptance of the portion accruing by the
person entitled. (If there is no acceptance the
share will go by way of intestacy.)

There is unity of object when two or more


persons are called to the same inheritance. The
property is not divided and the heirs, devisees or
legatees are called to the entire estate pro
indiviso

If there is already a specification ( north


portion, south portion), accretion is not proper

With respect to money or fungible goods, as


long as the share of devisee, legatee or heir is
not earmarked, there is still unity of object
ARTICLE 1016. In order that the right of accretion may
take place in a testamentary succession, it shall be
necessary:
(1) That two or more persons be called to the same
inheritance, or to the same portion thereof, pro indiviso;
and
(2) That one of the persons thus called die before the
testator, or
renounce
the
inheritance,
or
be
incapacitated to receive it. (982a)
ARTICLE 1017. The words "one-half for each" or "in equal
shares" or any others which, though designating an aliquot
part, do not identify it by such description as shall make
each heir the exclusive owner of determinate property, shall
not exclude the right of accretion.
In case of money or fungible goods, if the share of each
heir is not earmarked, there shall be a right of accretion.
(983a)

In testamentary succession, accretion is proper


if the vacancy is caused if one of the heirs:
1. Predeceased
2. Incapacitated;
3. Repudiates the inheritance
4. If the suspensive condition is not fulfilled
5. Failure to identify one particular heir
ARTICLE 1018. In legal succession the share of the person
who repudiates the inheritance shall always accrue to his
co-heirs. (981)

This treats of accretion in intestacy


One who renounces cannot represented

ARTICLE 1019. The heirs to whom the portion goes by the


right of accretion take it in the same proportion that they
inherit. (n)

In intestate succession, accretion is proper if


the vacancy is caused by repudiation or
incapacity (subject to the right of representation)

There is no accretion in intestate succession


if the vacancy is caused by disinheritance
ARTICLE 1020. The heirs to whom the inheritance accrues
shall succeed to all the rights and obligations which the heir
who renounced or could not receive it would have had.
(984)

This is the same in substation. The rights and


obligations shall pass to the others to whom the
shares will accrue
EXCEPTIONS:
Requisites of Accretion:

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

1.
2.

If the testator expressly provide that the other


heirs will not be subject to the same rights and
obligations
If the rights and obligations are personal to the
heir whose portion becomes vacant

ARTICLE 1021. Among the compulsory heirs the right of


accretion shall take place only when the free portion is left to
two or more of them, or to any one of them and to a stranger.
Should the part repudiated be the legitime, the other coheirs shall succeed to it in their own right, and not by the right
of accretion. (985)

There can be no accretion insofar as the


legitime is concerned

Accretion, if it takes place, concerns only the


free portion
ARTICLE 1022. In testamentary succession, when the right
of accretion does not take place, the vacant portion of the
instituted heirs, if no substitute has been designated, shall
pass to the legal heirs of the testator, who shall receive it with
the same charges and obligations. (986)

This illustrates the order of preference (ISRAI)

ARTICLE 1023. Accretion shall also take place among


devisees, legatees and usufructuaries under the same
conditions established for heirs. (987a)

SECTION 2
Capacity to Succeed by Will or by Intestacy
ARTICLE 1024. Persons not incapacitated by law may
succeed by will or ab intestato.
The provisions relating to incapacity by will are equally
applicable to intestate succession. (744, 914)

CAPACITY TO SUCCEED is the ability to


inherit and retain property obtained mortis causa

Capacity to succeed is governed by the law of


the nation of the decedent
Bar Question: What matters are governed by the
national law of the decedent?
Under Article 15:
1. The order of succession
2. The amount of successional right

3.
4.

The intrinsic validity of


provision
The capacity to succeed.

the

testamentary

ARTICLE 1025. In order to be capacitated to inherit, the


heir, devisee or legatee must be living at the moment the
succession opens, except in case of representation, when it is
proper.
A child already conceived at the time of the death of the
decedent is capable of succeeding provided it be born later
under the conditions prescribed in article 41. (n)

Natural persons must be living AT THE TIME


that the succession opens or AT THE TIME OF THE
DEATH

But the word living includes those at least


conceived (Article 41). A conceived child is deemed
to have live from the moment of the complete
separation from mothers womb.

But if the child has an intra-uterine life LESS


THAN 7 MONTHS, he should be considered alive if
the child does not die WITHIN 24 HOURS.

In representation, the representative must also


be living or at least conceived at the moment the
succession opens

ARTICLE 1026. A testamentary disposition may be made


to the State, provinces, municipal corporations, private
corporations, organizations, or associations for religious,
scientific, cultural, educational, or charitable purposes.
All other corporations or 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. (746a)

Juridical persons inherit only by WILL

Under article 1026, some of these entities are


not juridical persons. Juridical personality is
acquired when it is registered.

Article 1026 grants capacity to succeed even


to non-juridical persons

The STATE inherits by will or by intestacy by


virtue of its caduciary right

ARTICLE 1027. The


following
are
incapable
of
succeeding:
(1) The priest who heard the confession of the testator
during his last
illness, or the minister of the gospel who
extended spiritual aid to him during the same period;
(2) The relatives of such priest or minister of the gospel
within the
fourth degree, the church, order, chapter,
community,
organization, or institution to which such
priest or minister may
belong;
(3) A guardian with respect to testamentary dispositions
given by a
ward in his favor before the final accounts
of the guardianship
have been approved, even if the
testator should die after the
approval
thereof;
nevertheless, any provision made by the ward in
favor
of the guardian when the latter is his ascendant,
descendant, brother, sister, or spouse, shall be valid;
(4) Any attesting witness to the execution of a will, the
spouse, parents, or children, or any one claiming under
such witness,
spouse, parents, or children;
(5) Any physician, surgeon, nurse, health officer or druggist
who took
care of the testator during his last illness;
a
(6) Individuals, associations and corporations not permitted
by law to
inherit. (745, 752, 753, 754a)

1. Priest or Minister

to safeguard the right of the heirs who may


be defrauded by the sinister and undue
influence which may be exercised by some
priest and minister over a dying man
The will must be made DURING THE LAST
ILLNESS of the testator
LAST ILLNESS means the illness of which the
testator dies or the illness which immediately
preceded the death of the testator
The will must be made AFTER the confession
The priest must hear the confession. If he
merely extends spiritual aid, that is not
considered as confession. BUT with respect
to the minister, the giving of spiritual aid
disqualifies the minister.
It does not matter whether the illness is long,
lingering or short as long as there is great
possibility of death

The disqualification under this paragraph


does not extend to the legitime, intestacy
and dispositions which do not extend to a
testamentary benefit
2. Relatives of such pries or minister within
the 4th degree, the church, organization, etc.
3. Guardians
This refers to both to guardians over the
property and guardians of the person

As long as the final account has not been


approved, the guardian is prohibited from
being an heir, legatee/devisee of the testator

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

What is important is that at the time of the


making of the will, the final accounts have not
been approved. It does not matter that he is no
longer the guardian at the time of death.
The prohibition only applies when the
institution is during the subsistence of the
guardianship prior to the approval of the final
account

Unlike the priest, the relatives (spouse,


ascendant, descendant, brother or sister) are
not disqualified, For the priest up to the 4th
degree they are disqualified.
4. Attesting witnesses

If you give a legacy or devise only, the legacy


or devise is void but the witness is still qualified

But applying Article 823, if there are 3 other


witnesses who are competent, then the witness
to whom the legacy or devise is given is
capacitated to inherit
5. Physicians, surgeons, etc
The will must be made DURING the LAST
ILLNESS and AFTER THE CARE had commenced
The disqualification does not apply if the
physician or nurse is a compulsory heir
6. Individuals, associations and corporations not
permitted by law to inherit

Article 1027 still applies even if it is proved that


there was no undue influence on the part of the
priest, guardian, or physician

Article 1027 provides for a conclusive


presumption. Being conclusive, you cannot present
controverting evidence
ARTICLE 1028. The prohibitions mentioned in article 739,
concerning donations inter vivos shall apply to testamentary
provisions. (n)

6.

No place is specified or date is fixed for the


prayers

ARTICLE 1030. Testamentary provisions in favor of the


poor in general, without designation of particular persons or
of any community, shall be deemed limited to the poor
living in the domicile of the testator at the time of his death,
unless it should clearly appear that his intention was
otherwise.
The designation of the persons who are to be
considered as poor and the distribution of the property shall
be made by the person appointed by the testator for the
purpose; in default of such person, by the executor, and
should there be no executor, by the justice of the peace, the
mayor, and the municipal treasurer, who shall decide by a
majority of votes all questions that may arise. In all these
cases, the approval of the Court of First Instance shall be
necessary.
The preceding paragraph shall apply when the testator
has disposed of his property in favor of the poor of a definite
locality. (749a)

This is disposition in favor of the poor

This refers only to the poor living in the


domicile of the testator at the time of his death,
unless the testator has provided otherwise

The institution is for the poor in general.

When the testator says a poor of a definite


locality, then the poor in that place.

Insane persons have no testamentary


capacity

But with respect to being heirs, insane


persons are capacitated

Incapacity should be construed strictly


Who will designate the persons who
considered poor?
1. The person designated by the testator;
2. The executor;
3. Three people by majority vote

are

This is incapacity by reason of public morality

Applying the law on succession, the following


donations shall be void:
1.
When the testator and the recipient are
guilty of adultery or concubinage
2.
When the testator and the recipient are
guilty of the same criminal offense in consideration
thereof
3.
Those made by the testator to a public
officer, or his wife, descendant and ascendant by
reason of his office
ARTICLE 1029. Should the testator dispose of the whole or
part of his property for prayers and pious works for the benefit
of his soul, in general terms and without specifying its
application, the executor, with the court's approval shall
deliver one-half thereof or its proceeds to the church or
denomination to which the testator may belong, to be used for
such prayers and pious works, and the other half to the State,
for the purposes mentioned in article 1013. (747a)

Article
1029
is
commonly
called
the
Institution of the Soul. The soul is considered as
an entity which does not have a juridical
personality but may otherwise inherit
Requisites for the institution of the soul:
1. The disposition must be for prayers and pious
works
2. The prayers and pious works must for the
benefit of the testators soul
3. The disposition must be in general term
4. It does not specify the application
5. No particular person is charged with the duty of
giving the money or property

Kinds of Incapacity
1. ABSOLUTE INCAPACITY You cannot inherit from
anybody under any circumstance.
2. RELATIVE INCAPACITY You can inherit only from
certain persons or can only inherit certain properties
under certain circumstances.
Classes under Absolute Incapacity
1. Article 1026 last paragraph : All other
corporations or 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.
2. Article 1027 paragraph 6 : Individuals,
associations and
corporations not permitted by
law to inherit.
3. Those who lacks juridical personality
Classes under Relative Incapacity
1. Article 1027: Incapacity by reason of possible
undue influence
2. Article 1027 paragraphs 1-5: Incapacity by
reason of public policy
3. Article 1028 Incapacity by reason of public
policy and morality
4. Article 1032: Incapacity by reason of
unworthiness.
ARTICLE 1031. A testamentary provision in favor of a
disqualified person, even though made under the guise of
an onerous contract, or made through an intermediary, shall
be void. (755)

This article applies only to incapacity by


reason of possible influence and Incapacity by

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

reason of public morality.


With respect to
incapacity by reason of unworthiness, Article 1031
will not apply
ARTICLE 1032. The following are incapable of succeeding by
reason of unworthiness:
(1) Parents who have abandoned their children or induced
their
daughters to lead a corrupt or immoral life, or
attempted against
their virtue;
(2) Any person who has been convicted of an attempt against
the life of the testator, his or her spouse, descendants, or
ascendants;
(3) Any person who has accused the testator of a crime for
which the
law prescribes imprisonment for six years or
more, if the
accusation has been found groundless;
(4) Any heir of full age who, having knowledge of the violent
death of the testator, should fail to report it to an officer of the
law within a
month, unless the authorities have already
taken action; this
prohibition shall not apply to cases
wherein, according to law,
there is no obligation to
make an accusation;
(5) Any person convicted of adultery or concubinage with the
spouse of the testator;
(6) Any person who by fraud, violence, intimidation, or undue
influence should cause the testator to make a will or to
change one already made;
(7) Any person who by the same means prevents another
from
making a will, or from revoking one already made, or
who
supplants, conceals, or alters the latter's will;
(8) Any person who falsifies or forges a supposed will of the
decedent. (756, 673, 674a)

2nd paragraph: Any person who has been convicted of


an attempt against the life of the testator, his or her
spouse, descendants, or ascendants
The incapacity must be measured AT THE TIME
of death of the testator
Such person is not incapacitated if the attempt
against the wife of the testator was made after
the death of the testator
4th paragraph: Any heir of full age who, having
knowledge of the violent death of the testator, should
fail to report it to an officer of the law within a month,
unless the authorities have already taken action; this
prohibition shall not apply to cases wherein, according
to law, there is no obligation to make an accusation
18 years old is the legal age but 21 is the full
age
Death must be violent. It must be caused by a
crime

Under the last sentence, paragraph 4 applies


only when there is an obligation to make an
accusation but there is no law in the Philippines
which obliges anyone to make an accusation
because in criminal cases, it is People of the
Philippines versus the criminal. It is the State
which prosecutes. As of the present, paragraph
4 has no application.
5th paragraph: Any persons convicted or adultery or
concubinage with the spouse of the testator

The person convicted is the one incapacitated,


he is the unworthy. The spouse of the testator
is not incapacitated or unworthy.
But the
infidelity of the spouse constitutes a ground for
disinheritance. If there is a decree of legal
separation, by law, the spouse who is guilty is
disqualified from inheriting.
If there is now reconciliation between the guilty
spouse and the innocent spouse after the
decree of legal separation has been granted,
the decree shall be set aside so the spouse will
now be reinstated to succeed to capacity.
8th Paragraph: Any person who falsifies or forges a
supposed will of the decedent.
Article 1032 applies to both testate or intestate
succession
When it is the compulsory heir who becomes
unworthy, the compulsory heir loses the
legitime and all other rights pertaining to the

legitime and as well to the free portion. But


the incapacitated heir can be represented.
ARTICLE 1033. The causes of unworthiness shall be
without effect if the testator had knowledge thereof at the
time he made the will, or if, having known of them
subsequently, he should condone them in writing. (757a)

This article
CONDONATION

talks

Condonation / Pardon
It is the unilateral of the
testator.

about

PARDON

OR

Reconciliation
It is a bilateral act. There
must be forgiveness and
the heir must accept.

Rules for Condonation:

If the testator already knew the cause of the


unworthiness at the time of making the will
but still he provides something for that
unworthy heir in the will, there is now an
IMPLIED CONDONATION.
The will in which the implied condonation is
made must be valid and it must not be
revoked in order that there is implied
condonation because implied condonation is
dependent on the will.

If knowledge comes only AFTER the execution


of the will, condonation must be in writing.
This is EXPRESS CONDONATION

If the cause for unworthiness is also a ground


for disinheritance, the rule on disinheritance
applies. Thus, reconciliation is enough. There
is no requirement that the testator should
condone it in writing. But if there is no
disinheritance and there is only act of
unworthiness, if the testator knew of the act
only after the execution of the will, there has
to be condonation in writing.
The only instance wherein an incapacitated
heir is restored to capacity by the mere act of
reconciliation is when there is a decree of
legal separation the guilty spouse becomes
incapacitated. But when there is subsequent
reconciliation the decree shall be set aside
and the spouse will now be restored to
capacity.

ARTICLE 1034. In order to judge the capacity of the heir,


devisee or legatee, his qualification at the time of the death
of the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of article 1032, it
shall be necessary to wait until final judgment is rendered,
and in the case falling under No. 4, the expiration of the
month allowed for the report.
If the institution, devise or legacy should be conditional,
the time of the compliance with the condition shall also be
considered. (758a)

In case of a suspensive conditional institution,


the heir must be capacitated BOTH:
1. At the time of the testators death
2. At the time the condition is fulfilled
ARTICLE 1035. If the person excluded from the
inheritance by reason of incapacity should be a child or
descendant of the decedent and should have children or
descendants, the latter shall acquire his right to the
legitime.
The person so excluded shall not enjoy the usufruct and
administration of the property thus inherited by his children.
(761a)

In disinheritance, if a person is disinherited


he can still be represented.

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

But the disinherited parent shall have no


usufruct and administration of the property
received by the representative (Article 923).

This same rule applies to incapacity. The


incapacitated heir can still be represented but the
incapacitated heir has no right of usufruct or
administration over the property received by the
representative.
ARTICLE 1036. Alienations of hereditary property, and acts
of administration performed by the excluded heir, before the
judicial order of exclusion, are valid as to the third persons
who acted in good faith; but the co-heirs shall have a right to
recover damages from the disqualified heir. (n)

The unworthiness must be declared by the


court
ARTICLE 1037. The unworthy heir who is excluded from the
succession has a right to demand indemnity for any expenses
incurred in the preservation of the hereditary property, and to
enforce such credits as he may have against the estate. (n)
ARTICLE 1038. Any person incapable of succession, who,
disregarding the prohibition stated in the preceding articles,
entered into the possession of the hereditary property, shall
be obliged to return it together with its accessions.
He shall be liable for all the fruits and rents he may have
received, or could have received through the exercise of due
diligence. (760a)

Articles 1037 and 1038 speak of the rights and


obligations of the excluded unworthy heir
ARTICLE 1039. Capacity to succeed is governed by the law
of the nation of the decedent. (n)
ARTICLE 1040. The action for a declaration of incapacity
and for the recovery of the inheritance, devise or legacy shall
be brought within five years from the time the disqualified
person took possession thereof. It may be brought by any one
who may have an interest in the succession. (762a)

of the property, rights and obligations which are


transmitted to him thru the death of the decedent

Repudiation is the act by which the person


called to succeed to the inheritance manifest his
unwillingness to succeed to the same

Rights may be waived provided that the


waiver is not contrary to law, morals, public
policy, good customs or prejudicial to the right of
the person recognized by law. This is applicable
in acceptance and repudiation.

No person can be forced to accept the


generosity of another

Repudiation and acceptance are subsequent


to the death of the decedent. But their effects
retroact from the moment of death.

If you accept or repudiate before the death of


the decedent, it is void because it involves future
inheritance.
Moreover, a will is essentially
revocable so, the acceptance or repudiation is
premature
GENERAL RULE: Acceptance and repudiation once
made are irrevocable
EXCEPTION: When it was made through any of the
causes that vitiate consent or when an unknown will
appears.

Acceptance may be EXPRESS, TACIT or


PRESUMED

Repudiation being an act of disposition, it


requires greater capacity and more formalities
than acceptance

Repudiation of hereditary rights partakes the


nature of donations

Acceptance of inheritance does not make the


heir personally liable for the debts and
obligations of the decedent

Acceptance and Repudiation must


absolute, thus, not subject to condition

be

ARTICLE 1043. No person may accept or repudiate an


inheritance unless he is certain of the death of the person
from whom he is to inherit, and of his right to the
inheritance. (991)

Requisites:

The action for declaration of incapacity and


recovery of the inheritance shall be brought WITHIN
5 YEARS from the time the DISQUALIFIED heir took
possession of the property
Only those who have an interest who will either
stand to gain or lose by the exclusion of the
incapacitated heir can bring the action
SECTION 3
Acceptance and Repudiation of the Inheritance
ARTICLE 1041. The acceptance or repudiation of the
inheritance is an act which is purely voluntary and free. (988)

Acceptance and repudiation must be a free and


voluntary act

The presence of vitiated consent gives rise to


their revocability

There can be partial acceptance and partial


repudiation

Even the legitime may be repudiated since no


one can be compelled to accept the generosity of
another
ARTICLE 1042. The effects of the acceptance or repudiation
shall always retroact to the moment of the death of the
decedent. (989)

1.

The heir must be certain of the death


(actual or presumed) of the decedent
2.
The heir must be certain of his rights
to the inheritance
3.
The heir must have free disposal of
his property
ARTICLE 1044. Any person having the free disposal of his
property may accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons
may be accepted by their parents or guardians. Parents or
guardians may repudiate the inheritance left to their wards
only by judicial authorization.
The right to accept an inheritance left to the poor shall
belong to the persons designated by the testator to
determine the beneficiaries and distribute the property, or
in their default, to those mentioned in article 1030. (992a)

HEIRS
MINORS

Acceptance is the act by which a person called


to succeed to the inheritance of a decedent either
by will or by law manifests his assent to the receipt
POOR

WHO MAY
ACCEPT
Minors can be
represented
by
their
parents
or
guardians
(Minor himself
cannot
accept)
Acceptance

WHO MAY
REPUDIATE
The repudiation
by
the
parents/guardian
s must be with
judicial approval
for it to be valid.

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

CORPORATIONS/
ASSOCIATIONS/
ENTITIES
PUBLIC OFFICIAL/
ESTABLISHMENT
S
MARRIED
WOMAN

DEAF-MUTE
Who can read
and write
DEAF-MUTE
who cannot read
or write

must be made
by the person
designated by
the testator or
in his default,
follow
the
order made in
Article 1030.
(Justice of the
Peace, Mayor,
Municipal
Treasurer)
May be made
by the lawful
representative
.
Must be with
the approval
of
the
government
May accept on
her
own
without
the
consent of her
husband
May
accept
personally or
thru an agent
Must be made
by
the
guardian
(because deaf
mute
who
cannot
read
and write has
no
juridical
capacity)

(3) If he renounces it for a price in favor of all his co-heirs


indiscriminately; but if this renunciation should be
gratuitous,
and the co-heirs in whose favor it is made
are those upon whom the portion renounced should
devolve by virtue of
accretion, the inheritance shall
not be deemed as accepted.
(1000)

Article 1050 enumerates the instances


wherein there is tacit acceptance

The
lawful
representative
may
repudiate
with
court
approval.
With
the
approval of the
government
May
repudiate
on
her
own
without
the
consent of her
husband.
May
repudiate
personally
or
thru an agent.
Must be made by
the
guardian
with
court
approval

ARTICLE 1045. The lawful representatives of corporations,


associations, institutions and entities qualified to acquire
property may accept any inheritance left to the latter, but in
order to repudiate it, the approval of the court shall be
necessary. (993a)
ARTICLE 1046. Public official establishments can neither
accept nor repudiate an inheritance without the approval of
the government. (994)
ARTICLE 1047. A married woman of age may repudiate an
inheritance without the consent of her husband. (995a)
ARTICLE 1048. Deaf-mutes who can read and write may
accept or repudiate the inheritance personally or through an
agent. Should they not be able to read and write, the
inheritance shall be accepted by their guardians. These
guardians may repudiate the same with judicial approval.
(996a)
ARTICLE 1049. Acceptance may be express or tacit.
An express acceptance must be made in a public or
private document.
A tacit acceptance is one resulting from acts by which
the intention to accept is necessarily implied, or which one
would have no right to do except in the capacity of an heir.
Acts of mere preservation or provisional administration do
not imply an acceptance of the inheritance if, through such
acts, the title or capacity of an heir has not been assumed.
(999a)

The acts of mere preservation or administration


do not constitute acceptance because these acts
are not acts of dominion
ARTICLE 1050. An inheritance is deemed accepted:
(1) If the heirs sells, donates, or assigns his right to a
stranger, or
to his co-heirs, or to any of them;
(2) If the heir renounces the same, even though gratuitously,
for the benefit of one or more of his co-heirs;

Under the 2nd paragraph, take note that the


renunciation must be in favor of one or some but
not all. When you renounce in favor of one or
some, you are actually choosing who will receive.
You are exercising dominion over your share and
it is an act of ownership. Thus, there is tacit
acceptance

Under the 3rd paragraph, if you renounce in


favor of your co-heirs of ALL indiscriminately but
you were paid, then there is tacit acceptance
because why would they pay you if you do not
own the share you are giving to them. BUT the
portion renounced should not devolve to the
other heirs who would succeed by virtue of
accretion if the renunciation is gratuitous.
ARTICLE 1051. The repudiation of an inheritance shall be
made in a public or authentic instrument, or by petition
presented to the court having jurisdiction over the
testamentary or intestate proceedings. (1008)

How do you repudiate?


1. Repudiation by public document
2. When repudiation is embodied in an authentic
document
3. By petition presented in court having jurisdiction
over
the testamentary or intestate proceeding
ARTICLE 1052. If the heir repudiates the inheritance to
the prejudice of his own creditors, the latter may petition
the court to authorize them to accept it in the name of the
heir.
The acceptance shall benefit the creditors only to an
extent sufficient to cover the amount of their credits. The
excess, should there be any, shall in no case pertain to the
renouncer, but shall be adjudicated to the persons to whom,
in accordance with the rules established in this Code, it may
belong. (1001)

The creditors can accept in behalf of the heirs


only if the heir repudiates and the repudiation
prejudices the creditors

But in that case, creditors cannot accept the


entire inheritance, devise /legacy.
Only the
amount sufficient to cover the credit.
ARTICLE 1053. If the heir should die without having
accepted or repudiated the inheritance his right shall be
transmitted to his heirs. (1006)

The death of the heir should be after that of


the decedent in order that Article 1053 may be
applied
ARTICLE 1054. Should there be several heirs called to the
inheritance, some of them may accept and the others may
repudiate it. (1007a)

If all the heirs accept, there is co-ownership

If one of them repudiates, there is accretion


or substitution if there is a substitute
ARTICLE 1055. If a person, who is called to the same
inheritance as an heir by will and ab intestato, repudiates
the inheritance in his capacity as a testamentary heir, he is
understood to have repudiated it in both capacities.

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Should he repudiate it as an intestate heir, without


knowledge of his being a testamentary heir, he may still
accept it in the latter capacity. (1009)

An heir is both a testamentary heir and an


intestate heir

If you renounced your share in testamentary


succession, it follows that you also renounced your
share in legal succession

If at the time of your being legal or intestate


heir, you already knew that you are instituted as
testamentary heir, you are deemed to have
repudiated both. But if at the time that you are
renouncing your being an intestate or legal heir,
you do not know that you are also instituted heir in
a will, then you are not deemed to have renounced
your institution in the will because the presumption
is that the shares of the heir in legal succession is
just based on the presumed will of the testator.
ARTICLE 1056. The acceptance or repudiation of an
inheritance, once made, is irrevocable, and cannot be
impugned, except when it was made through any of the
causes that vitiate consent, or when an unknown will appears.
(997)
ARTICLE 1057. Within thirty days after the court has issued
an order for the distribution of the estate in accordance with
the Rules of Court, the heirs, devisees and legatees shall
signify to the court having jurisdiction whether they accept or
repudiate the inheritance.
If they do not do so within that time, they are deemed to
have accepted the inheritance. (n)

Within 30 days, you must signify your


acceptance or repudiation.
Otherwise, the
presumption is you have accepted the inheritance

Article 1057 refers to presumed acceptance


Article 1050 refers to tacit acceptance
SECTION 4
Executors and Administrators

ARTICLE 1058. All matters relating to the appointment,


powers and duties of executors and administrators and
concerning the administration of estates of deceased persons
shall be governed by the Rules of Court. (n)
ARTICLE 1059. If the assets of the estate of a decedent
which can be applied to the payment of debts are not
sufficient for that purpose, the provisions of articles 2239 to
2251 on Preference of Credits shall be observed, provided that
the expenses referred to in article 2244, No. 8, shall be those
involved in the administration of the decedent's estate. (n)
ARTICLE 1060. A corporation or association authorized to
conduct the business of a trust company in the Philippines
may be appointed as an executor, administrator, guardian of
an estate, or trustee, in like manner as an individual; but it
shall not be appointed guardian of the person of a ward. (n)

SECTION 5
Collation
ARTICLE 1061. Every compulsory heir, who succeeds with
other compulsory heirs, must bring into the mass of the estate
any property or right which he may have received from the
decedent, during the lifetime of the latter, by way of donation,
or any other gratuitous title, in order that it may be computed
in the determination of the legitime of each heir, and in the
account of the partition. (1035a)

COLLATION means computing or adding


certain values to the estate, and charging the same
to the LEGITIME

COLLATION also means computing or adding


certain values to the estate, and charging the same
to the FREE PORTION

ARTICLE 1062. Collation shall not take place among


compulsory heirs if the donor should have so expressly
provided, or if the donee should repudiate the inheritance,
unless the donation should be reduced as inofficious. (1036)
ARTICLE 1063. Property left by will is not deemed subject
to collation, if the testator has not otherwise provided, but
the legitime shall in any case remain unimpaired. (1037)
ARTICLE 1064. When grandchildren, who survive with
their uncles, aunts, or cousins, inherit from their
grandparents in representation of their father or mother,
they shall bring to collation all that their parents, if alive,
would have been obliged to bring, even though such
grandchildren have not inherited the property.
They shall also bring to collation all that they may have
received from the decedent during his lifetime, unless the
testator has provided otherwise, in which case his wishes
must be respected, if the legitime of the co-heirs is not
prejudiced. (1038)

Items which are not subject to collation:


1. If the testator provides that the donation shall
not be collated, but subject to the rule that it
should not impair the legitime of the other
compulsory heirs
2. If the compulsory heir repudiated his share in
the inheritance. The donation will not be
revoked but if it is inofficious, the heir who
repudiated the inheritance will pay or give
back the value to the other compulsory heirs
whose legitimes are impaired.
3. Those given to voluntary heirs, legatees and
devisees. The donations given to them will
be charged to the free portion. If it will
impair the legitime of the other compulsory
heirs, it has to be reduced. (Article 1063)
4. Expenses incurred by the parents in giving
their children the professional, vocational or
other career (Article 1068)
5. Wedding gifts (Article 1070)
GENERAL RULE: Expenses incurred by the parents in
giving their children the professional, vocational or
other career is not charged to the legitime of the
compulsory heirs but only to the free portion
EXCEPTION: If the parents expressly provide that it
shall be charged to the legitime
ARTICLE 1070. Wedding gifts by parents and ascendants
consisting of jewelry, clothing, and outfit, shall not be
reduced as inofficious except insofar as they may exceed
one-tenth of the sum which is disposable by will. (1044)

These items are charged to the free portion


but subject to the limitation that they should not
exceed 1/10 of the free portion
ARTICLE 1065. Parents are not obliged to bring to
collation in the inheritance of their ascendants any property
which may have been donated by the latter to their
children. (1039)
ARTICLE 1066. Neither shall donations to the spouse of
the child be brought to collation; but if they have been given
by the parent to the spouses jointly, the child shall be
obliged to bring to collation one-half of the thing donated.
(1040)
ARTICLE 1067. Expenses for support, education, medical
attendance, even in extraordinary illness, apprenticeship,
ordinary equipment, or customary gifts are not subject to
collation. (1041)

SUPPORT includes education but Article 1067


separates support and education

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Education under this article means only up to


HIGH SCHOOL education because there is separate
provision under Article 1068 as to professional,
vocational and other careers
Items which are not collated to the legitime and
to the free portion because they are not included
in the computation in the net hereditary estate:
1. Properties received from the testator by the
children of the heir (Article 1065)
2. Donations by the testator to the spouse of the
compulsory heir (Article 1066) If the donation
was made to the spouses jointly, is subject to
collation pertaining to the share of the heir
3. Expenses for support, education, medical
attendance

ARTICLE 1068. Expenses incurred by the parents in giving


their children a professional, vocational or other career shall
not be brought to collation unless the parents so provide, or
unless they impair the legitime; but when their collation is
required, the sum which the child would have spent if he had
lived in the house and company of his parents shall be
deducted therefrom. (1042a)

When you give your child elementary or high


school education , this is not generosity but a Moral
Obligation on you part
ARTICLE 1069. Any sums paid by a parent in satisfaction of
the debts of his children, election expenses, fines, and similar
expenses shall be brought to collation. (1043a)
ARTICLE 1071. The same things donated are not to be
brought to collation and partition, but only their value at the
time of the donation, even though their just value may not
then have been assessed.
Their subsequent increase or deterioration and even their
total loss or destruction, be it accidental or culpable, shall be
for the benefit or account and risk of the donee. (1045a)

Only the value at the time of the perfection of


the donation should be collated
ARTICLE 1072. In the collation of
parents, one-half shall be brought
father, and the other half, to that of
one alone shall be brought to
inheritance. (1046a)

a donation made by both


to the inheritance of the
the mother. That given by
collation in his or her

1.
2.
3.

Property of the same nature, class and


quality
If no property of the same nature, cash or
security
Other property as may be necessary shall be
sold at public auction

Rules for movables:


1. Property of the same nature, class or quality

2.

If none, the equivalent value of the property

When the property donated is a MOVABLE


property, there is NO RIGHT to sell at a public
auction
ARTICLE 1075. The fruits and interest of the property
subject to collation shall not pertain to the estate except
from the day on which the succession is opened.
For the purpose of ascertaining their amount, the fruits
and interest of the property of the estate of the same kind
and quality as that subject to collation shall be made the
standard of assessment. (1049)

In donation, there is immediate transfer of


ownership. Thus, the fruits and interest from the
time of the donation up to the death of the
testator shall belong to the donee

The fruits from the time of the death of the


testator shall pertain to the estate
ARTICLE 1076. The co-heirs are bound to reimburse to the
donee the necessary expenses which he has incurred for the
preservation of the property donated to him, though they
may not have augmented its value.
The donee who collates in kind an immovable, which
has been given to him, must be reimbursed by his co-heirs
for the improvements which have increased the value of the
property, and which exist at the time the partition is
effected.
As to works made on the estate for the mere pleasure
of the donee, no reimbursement is due him for them; he
has, however, the right to remove them, if he can do so
without injuring the estate. (n)

This
article
talks
RETURNING IN KIND

the

RULES

FOR

When there is collation in kind (return of


the property or the value), the other heirs should
reimburse the donee for the necessary expenses

You have to reimburse the heir of the value of


the improvements

The donee has the right to remove the


improvements which are for his own pleasure if
the removal will not impair the property donated

ARTICLE 1073. The donee's share of the estate shall be


reduced by an amount equal to that already received by him;
and his co-heirs shall receive an equivalent, as much as
possible, in property of the same nature, class and quality.
(1047)

ARTICLE 1077. Should any question arise among the coheirs upon the obligation to bring to collation or as to the
things which are subject to collation, the distribution of the
estate shall not be interrupted for this reason, provided
adequate security is given. (1050)

ARTICLE 1074. Should the provisions of the preceding


article be impracticable, if the property donated was
immovable, the co-heirs shall be entitled to receive its
equivalent in cash or securities, at the rate of quotation; and
should there be neither cash nor marketable securities in the
estate, so much of the other property as may be necessary
shall be sold at public auction.
If the property donated was movable, the co-heirs shall
only have a right to select an equivalent of other personal
property of the inheritance at its just price. (1048)

Questions on collation do not interrupt


distribution as long as adequate security is
given

Only properties received by gratuitous title


may be the subject of collation

When the estate proceedings have not yet


reached the stage of partitioning and distributing
the property, any question of collation that is
brought up can be regarded as having been
prematurely raised

Article 1073 and article 1074 are the RULES


OF EQUALIZATION IN COLLATION
Rules for immovables:

SECTION 6
Partition and Distribution of the Estate
SUBSECTION 1
Partition

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

ARTICLE 1078. Where there are two or more heirs, the


whole estate of the decedent is, before its partition, owned in
common by such heirs, subject to the payment of debts of the
deceased. (n)
ARTICLE 1079. Partition, in general, is the separation,
division and assignment of a thing held in common among
those to whom it may belong. The thing itself may be divided,
or its value. (n)

Article 1079 defines PARTITION

Before partition, there is co-heirship.


heirship is dissolved by partition.

This co-

How partition is made?


1. JUDICIAL PARTITION
2. EXTRA-JUDICIAL PARTITION
ARTICLE 1080. Should a person make a partition of his
estate by an act inter vivos, or by will, such partition shall be
respected, insofar as it does not prejudice the legitime of the
compulsory heirs.
A parent who, in the interest of his or her family, desires
to keep any agricultural, industrial, or manufacturing
enterprise intact, may avail himself of the right granted him in
this article, by ordering that the legitime of the other children
to whom the property is not assigned, be paid in cash. (1056a)

This is refers to Extra-judicial Partition by


the Decedent

This is subject to the limitation that the


legitimes of the compulsory heirs should not be
impaired
Kinds of extra-judicial partition by decedent:
1. By acts inter vivos
There is no requirement or no formalities
required.
In partition, there is no transfer of
ownership. There is
merely
a
physical
determination of the portion to be
given to the
heir.
2. By will
Formalities are required.
Kinds of extra-judicial partition by heirs:
1. Orally
This is binding only between the heirs
themselves who
are participants
2. By public instrument
This is binding even against the 3rd person.
Limitations of extra-judicial partition:
1. There are no debts;
2. That everyone is of legal age or represented by
guardian.
ARTICLE 1081. A person may, by an act inter vivos or mortis
causa, intrust the mere power to make the partition after his
death to any person who is not one of the co-heirs. i
The provisions of this and of the preceding article shall be
observed even should there be among the co-heirs a minor or
a person subject to guardianship; but the mandatory, in such
case, shall make an inventory of the property of the estate,
after notifying the co-heirs, the creditors, and the legatees or
devisees. (1057a)

This is what you call the appointment of the


MANDATARY

MANDATARY is a person entrusted to make


the partition

The heirs are not bound by the partition made


by the mandatory. The heirs may accept or they
may reject.

In case of conflict, the court may settle the


conflict

Requirements in order that there is valid


partition by the mandatary:
1. The mandatary should not be a co-heir
because if he is one of the co-heirs his
partition may be tainted with impartiality.
2. In case one of the heirs is subject to
guardianship, it is required that there be
notifications to the co-heirs, creditors,
legatees or devisees
3. There has to be inventory of the estate
ARTICLE 1082. Every act which is intended to put an end
to indivision among co-heirs and legatees or devisees is
deemed to be a partition, although it should purport to be a
sale, an exchange, a compromise, or any other transaction.
(n)

There is no specific time as to when partition


is to be effected as long as it is intended to put
an end to indivision or to end the co-ownership
ARTICLE 1083. Every co-heir has a right to demand the
division of the estate unless the testator should have
expressly forbidden its partition, in which case the period of
indivision shall not exceed twenty years as provided in
article 494. This power of the testator to prohibit division
applies to the legitime.
Even though forbidden by the testator, the coownership terminates when any of the causes for which
partnership is dissolved takes place, or when the court finds
for compelling reasons that division should be ordered, upon
petition of one of the co-heirs. (1051a)

GENERAL RULE:
Heirs, whether compulsory or
voluntary, can demand partition
EXCEPTION: When the testator has forbidden the
partition of the estate. But this prohibition shall not
exceed 20 years.
Instances when the heirs may partition even if
before 20 years:
1.
When any of the causes for the
termination of the partnership (e.g. death)
2.
If the heirs themselves mutually
agree to partition
3.
Upon order of the court for
compelling reasons and upon petition of the
heirs
ARTICLE 1084. Voluntary
heirs
upon
whom
some
condition has been imposed cannot demand a partition until
the condition has been fulfilled; but the other co-heirs may
demand it by giving sufficient security for the rights which
the former may have in case the condition should be
complied with; and until it is known that the condition has
not been fulfilled or can never be complied with, the
partition shall be understood to be provisional. (1054a)

A voluntary heir whose institution is subject


to a condition cannot demand partition before the
fulfillment of the condition.
The other heirs
concurring with such voluntary heir may demand
partition provided they given security or cash
bond to safeguard the rights of the conditional
heirs
GENERAL RULE: The right to demand partition does
not prescribe
EXCEPTION:
When one of the heirs adversely
possesses the property and he has complied with all
the requirements for acquisitive prescription
ARTICLE 1085. In the partition of the estate, equality shall
be observed as far as possible, dividing the property into
lots, or assigning to each of the co-heirs things of the same
nature, quality and kind. (1061)

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

ARTICLE 1086. Should a thing be indivisible, or would be


much impaired by its being divided, it may be adjudicated to
one of the heirs, provided he shall pay the others the excess in
cash.
Nevertheless, if any of the heirs should demand that the
thing be sold at public auction and that strangers be allowed
to bid, this must be done. (1062)

Note that if even ONE heir should demand a


public auction, this must be done
ARTICLE 1087. In the partition the co-heirs shall reimburse
one another for the income and fruits which each one of them
may have received from any property of the estate, for any
useful and necessary expenses made upon such property, and
for any damage thereto through malice or neglect. (1063)

Reimbursement made by co-heirs:


1. Income and fruits
2. Useful and necessary expenses
3. Damages thru malice or neglect
ARTICLE 1088. Should any of the heirs sell his hereditary
rights to a stranger before the partition, any or all of the coheirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they do so
within the period of one month from the time they were
notified in writing of the sale by the vendor. (1067a)

This article talks about LEGAL REDEMPTION

Requisites for the exercise of legal redemption:


1.
There are two or more heirs
2.
There is a sale of hereditary right

There must be a sale or other


onerous disposition

The sale must be voluntary or


forced as in the case of sales on execution
3.
The buyer must be a stranger
4.
The sale must be made BEFORE
partition
5.
At least one co-heir must demand
partition

If all of the of the co-heirs


demand partition, they shall be allowed to
redeem the proportionate share pertaining
to them
6.
The demand must be made within one
month from Notification in Writing
7.
The redemptioner must reimburse the
price of the sale
GENERAL RULE: The right of legal redemption is a
PERSONAL RIGHT. They cannot assign or sell this right.
EXCEPTION: If the heir who wants to exercise the right
of legal redemption dies prior to the exercise, his right
may be transmitted to his own heirs.
ARTICLE 1089. The titles of acquisition or ownership of each
property shall be delivered to the co-heir to whom said
property has been adjudicated. (1065a)
ARTICLE 1090. When the title comprises two or more pieces
of land which have been assigned to two or more co-heirs, or
when it covers one piece of land which has been divided
between two or more co-heirs, the title shall be delivered to
the one having the largest interest, and authentic copies of
the title shall be furnished to the other co-heirs at the expense
of the estate. If the interest of each co-heir should be the
same, the oldest shall have the title. (1066a)

Title here refers to the


document evidencing the right of ownership and
not to the right itself
Order of preference as to whom title shall be
delivered if some properties remain undivided:
1. The one having the largest interest
2. If all of them have the same interest, the oldest heir

SUBSECTION 2
Effects of Partition
ARTICLE 1091. A partition legally made confers upon each
heir the exclusive ownership of the property adjudicated to
him. (1068)
ARTICLE 1092. After the partition has been made, the coheirs shall be reciprocally bound to warrant the title to, and
the quality of, each property adjudicated. (1069a)

For warranty against eviction


to be enforceable, it is enough that there be a
burden or encumbrance that must be respected.
It is not necessary that the heir be deprived full
ownership

Eviction here does not have


to be by final judgment before recourse to the
warranty can be sought, as long as no heir
objects
Effects of partition:
1. Once there is partition, the heirs will be the
exclusive owners of the thing given to them
or delivered to them (Article 1091)
2. There is a reciprocal and proportionate
warranty (Article 1092)
ARTICLE 1093. The reciprocal obligation of warranty
referred to in the preceding article shall be proportionate to
the respective hereditary shares of the co-heirs, but if any
one of them should be insolvent, the other co-heirs shall be
liable for his part in the same proportion, deducting the part
corresponding to the one who should be indemnified.
Those who pay for the insolvent heir shall have a right
of action against him for reimbursement, should his financial
condition improve. (1071)
ARTICLE 1094. An action to enforce the warranty among
co-heirs must be brought within ten years from the date the
right of action accrues. (n)

The period of exercise of the


warranty is 10 years
ARTICLE 1095. If a credit should be assigned as
collectible, the co-heirs shall not be liable for the
subsequent insolvency of the debtor of the estate, but only
for his insolvency at the time the partition is made.
The warranty of the solvency of the debtor can only be
enforced during the five years following the partition.
Co-heirs do not warrant bad debts, if so known to, and
accepted by, the distributee. But if such debts are not
assigned to a co-heir, and should be collected, in whole or in
part,
the
amount
collected
shall
be
distributed
proportionately among the heirs. (1072a)

This is Warranty as to
Insolvency

There is a warranty of
insolvency provided that the debtor was solvent
at the time of the partition, not later

Such warranty is good for 5


years, following the date of partition

There is no warranty for bad


debts. An heir accepts them at his own risk

ARTICLE 1096. The obligation of warranty among co-heirs


shall cease in the following cases:
(1) When the testator himself has made the partition,
unless it
appears, or it may be reasonably
presumed, that his intention
was otherwise, but the
legitime shall always remain
unimpaired;
(2) When it has been so expressly stipulated in the
agreement of
partition, unless there has been bad faith;

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

(3) When the eviction is due to a cause subsequent to the


partition,
or has been caused by the fault of the
distributee of the property. (1070a)

SUBSECTION 3
Rescission and Nullity of Partition
ARTICLE 1097. A partition may be rescinded or annulled for
the same causes as contracts. (1073a)
ARTICLE 1098. A partition, judicial or extra-judicial, may
also be rescinded on account of lesion, when any one of the
co-heirs received things whose value is less, by at least onefourth, than the share to which he is entitled, considering the
value of the things at the time they were adjudicated. (1074a)
ARTICLE 1099. The partition made by the testator cannot be
impugned on the ground of lesion, except when the legitime of
the compulsory heirs is thereby prejudiced, or when it appears
or may reasonably be presumed, that the intention of the
testator was otherwise. (1075)

GENERAL RULE: In order that that you may be justified


in asking for rescission on the account of lesion, the
deduction must at least be . If it is less than , you
can only ask for a completion.
EXCEPTION: If the partition is made by the TESTATOR,
even if the deduction is less than , you cannot ask for
rescission
EXCEPTION TO THE EXCEPTION:
1. When the legitime of the compulsory heirs has
been impaired.
2. If the intent of the testator is for his partition to
be rescinded should there be lesion
ARTICLE 1100. The action for rescission on account of lesion
shall prescribe after four years from the time the partition was
made. (1076)

If brought after more than 4 years, the


action for rescission will fail

The 4-year period begins to run not


from the time of the project of partition but from
the time there is court approval
ARTICLE 1101. The heir who is sued shall have the option of
indemnifying the plaintiff for the loss, or consenting to a new
partition.
Indemnity may be made by payment in cash or by the
delivery of a thing of the same kind and quality as that
awarded to the plaintiff.
If a new partition is made, it shall affect neither those who
have not been prejudiced nor those have not received more
than their just share. (1077a)

The defendant heir, despite a proper


ground for rescission, is given an option:
1.
To indemnify the plaintiff This may be
made by

payment in cash or

delivery of the thing of the same kind.


2.
New partition
ARTICLE 1102. An heir who has alienated the whole or a
considerable part of the real property adjudicated to him
cannot maintain an action for rescission on the ground of
lesion, but he shall have a right to be indemnified in cash.
(1078a)

restitution

Rescission

requires

mutual

ARTICLE 1103. The omission of one or more objects or


securities of the inheritance shall not cause the rescission of
the partition on the ground of lesion, but the partition shall be
completed by the distribution of the objects or securities which
have been omitted. (1079a)

ARTICLE 1104. A partition made with preterition of any of


the compulsory heirs shall not be rescinded, unless it be
proved that there was bad faith or fraud on the part of the
other persons interested; but the latter shall be
proportionately obliged to pay to the person omitted the
share which belongs to him. (1080)

This involves a preterition of


compulsory heirs, not in the institution, but in the
partition of one or more objection

Preterition of an object in a
will gives rise to mixed succession. Preterition of
an object in the partition does not give rise to
rescission.
GENERAL RULE: Such preterition in the partition will
NOT cause rescission.
EXCEPTION: If there was
1.
Fraud
2.
Bad faith
ARTICLE 1105. A partition which includes a person
believed to be an heir, but who is not, shall be void only with
respect to such person. (1081a)

This speaks of an intrusion


of a stranger in the partition

The partition in this case is


not completely void.

Only the part corresponding


to the non-heir is void.

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared
by: Jazzie M. Sarona
Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran,
Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Success is not the key to happiness. Happiness is the


key to success.
If you love what you are doing, you will be successful.
- Albert Schweitzer