Succession Tips (Justice Hofilena)

By: Butch Ramiro

SUCCESSION [in general]

For Intrinsic Validity

Succession: Succession is a mode of acquisition by virtue of which the property, rights and
obligations to the extent of the value of his inheritance of a person are transmitted through his
death to another or others either by his will or by operation of law
Money claims: Creditor must pursue money claims in testators settlement proceedings.
Law in force at the time of the decedents death will determine who the heirs should be

As to time
As to place

WILLS:
Characteristics of wills: [PREFES-MUDIS]

4.

1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.

5.
6.
7.
8.

Extrinsic Validity [GR: Art 795: The validity of a will as to its form depends upon the observance
of the law at the time it is made]
As to time
As to place

Filipinos
Law in force at the time will was
executed [Art 795]
Art 815-817 provide:

Foreigners
Same, assuming it was probated
here

Filipinos Will Abroad: Authorized to make a will in any of the forms

established by the law in the country where he is. It may be probated in the
Philippines
Aliens Will Abroad: Authorized to make a will abroad and will produce effect
in the Philippines IF:
i.) Formalities prescribed by law of the place of his residence is
complied with
ii.) Formalities prescribed by law of his country is complied with
(e.g. Ukrainian making a will in US)
iii.) Formalities prescribed by Philippine law (805) is complied with
Aliens will in the Philippines: Alien may make a will in the Philippines and it
will produce effect here IF:
i.) Will is executed according to the laws of his country
ii.) Will might be probated and allowed in his country

Foreigners
Depends on their personal law
Their national law

Formal requisites of ATTESTED WILL

1.
2.
3.

Purely personal
Revocable
Executed with animus testandi [intent to make a will]
Free and intelligent
Executed with testamentary capacity
Solemn and formal
Mortis causa
Unilateral
Dispositive
Individual
Statutory

Filipinos
Law in force at the time of death
Philippine law

9.

In writing
In language or dialect known to testator
Subscribed at the end thereof by the testator or by his agent in his presence and by his
express direction in the presence of witnesses
Subscribed and attested by at least 3 credible witnesses in the presence of the testator and
of one another
The testator or his agent by his express direction must sign the will and every page thereof
except the last on the left margin in the presence of the witnesses
The witnesses must sign the will and every page thereof except the last on the left margin
in the presence of the testator and of one another
Every page must be numbered correlatively
An attestation clause, signed by the witnesses, stating:
a) # of pages of the will
b) The fact that the testator or his agent by his express direction signed the will and
every page thereof in the presence of the witnesses
c) That the witnesses signed and witnessed the will and every page thereof in the
presence of the testator and of one another
The will must be acknowledged before a notary public by the testator and the witnesses

Difference of subscription, attestation and the attestation clause

Subscription
Act of the hand

Attestation
Act of senses (Act of attesting)

Mechanical
Subscription is the signing of the
witnesses names upon the same
paper for the purpose of
identification of such paper as the
will which was executed by the
testator

Mental
Attestation consists in witnessing
the testators execution of the will
in order to see and take note
mentally that those things are
done which the law requires for
the execution of a will and that
the signature of the testator
exists as a fact

Attestation Clause
Refers to that part of the
will whereby the attesting
witnesses certify that there
was compliance with the
essential formalities
required by law
Mandatory part of the will
Must state:
1.
2.

3.

# of pages
Fact that
testator/agent under
his direction signed
the will and its every
page in presence of
witnesses
Witnesses witnessed
and signed the will
and its every page in
the presence of the
testator and of one
another

Succession Tips (Justice Hofilena)

By: Butch Ramiro
Difference of acknowledgement and Jurat

Requisites of HOLOGRAPHIC WILLS:

A will which does not contain an acknowledgement but a mere jurat is fatally defective because
acknowledged is different from subscribed and sworn to.

1.
2.
3.
4.

Acknowledgement
Act of one who has executed a deed in going
before the notary or court and declaring it to
be his own act or deed. Through this,
witnesses and testator declare that the
signing/execution were of their own free act.
This declaration is under pain of perjury.

Jurat
That part of an affidavit where the notary
certifies that before him/her, the document
was subscribed and sworn to. It is incomplete
as it does not present any textual proof, that
the decedent and the witnesses executed or
subscribed the will as their own free act.

Difference of witnesses signing at the left margin vs. witnesses signing the attestation
clause
SIGNATURES ON LEFT HAND
signifies that the witnesses are aware that the
page they are signing forms part of the will

SIGNATURES ON ATTESTATION CLAUSE

the witnesses are referring to the statements
contained in the attestation clause itself

OBITER in Cagro v. Cagro: Will could have been valid had the witnesses signed the
attestation clause BUT not the left-hand margin of the page containing such clause will is
invalid even if there are left hand signatures by witnesses but AC was not signed by them
Summary of /examples of substantial compliance as regards formal requirements of a will
1.
2.
3.
4.
5.
6.
7.

AC does not have to state that an agent signed in the testators presence
If testator thumbmarked each page and asked her attorney to write her name under the
thumbmark, signing requirement is fulfilled (no need for AC to state that testator had an
agent sign testators name)
Even if testator is healthy enough to sign, a thumbmark still satisfies signing requirement
It is immaterial who writes the testators name provided it is done with the testators
request, in her presence and in the presence of the witnesses to the wills execution
If testator signs at the end of the will but the witnesses signed at the left margin, there is
substantial compliance although ideally, witnesses should also sign at the end of the will
If AC fails to state # of pages but acknowledgement states the number of pages, there is
substantial compliance because the # of pages can still be seen elsewhere (within the will)
In the presence of testator and of one another is complied with if at the moment of the
subscription of each signature, the parties are positioned in such a way that they can see
each other sign if they chose to do so.

Requisites for having a sound mind:

It is not necessary that the testator be fully physically and mentally healthy. It shall be sufficient if
at the time of making the will, he knows:
1. Estate to be disposed of
2. His relatives in the closest degrees
3. The character of the testamentary act

Entirely handwritten
In a language or dialect known to the testator
Signed by testator
Dated by testator

Possible exceptions to joint wills:

1.
2.
3.

Survivorship agreements
Reciprocal wills in separate instruments
Separate documents each serving as one independent will

Requisites to be a witness to a will

1.
2.
3.
4.
5.
6.

18 and above
Sound mind
Not blind, deaf or dumb
Able to read and write
Domiciled in the PH
Must not have been convicted of:
a) Falsification of a document
b) Perjury
c) False testimony

Codicil: A supplement or addition to a will, made after its execution,

It is a supplement of addition to a will

It is made after the execution of such will
It is annexed to the will, to be taken as a part of such will
It either:
o
Adds to a disposition (e.g. Will: I leave my house to A. Codicil: I also leave the lot
where the house is to A)
o
Explains a disposition
o
Alters a disposition (e.g. Will: I leave 50 hectares of my 100 hectare land to Y. Codicil:
Oops. 25 hectares na lang pala)

Difference of revocation of wills and nullity of wills

Revocation of a will
An act of a testator
Presupposes a valid act
Takes place during testators lifetime
Testator cannot renounce his right to revoke

Nullity of a will
Provided for by law
Inherent in the testament
Invoked after testators death by his heirs
Heirs may disregard by still complying with the
testamentary dispositions

Quoting Sancho v. Abella: neither senile debility, deafness, blindness, poor memory is
BY ITSELF sufficient to establish unsound mind when there is sufficient evidence of his
mental sanity at the time of the wills execution
2

Succession Tips (Justice Hofilena)

By: Butch Ramiro
Effect of a lost attested will:
The presumption that the will was revoked will arise when:
1. Will was last seen in the possession of the testator but subsequently cannot be found after
his death
2. Testator had ready access to the will and it cannot be found after his death
However, in Estate of Adriana Maloto: When a will was alleged to have been destroyed but
afterwards, a carbon copy of the will was found with the testators attorney, SC held that though
evidence shows that there was intent to revoke, its actual physical destruction was not proven.

PROBATE PROCEEDINGS
Rule: No will shall pass any property unless it is proved and allowed in accordance with the
Rules of Court.
When a will does not contain any dispositive portions, is it still valid?
Technically yes. Tolentino says When there is no disposition of property, although the
instrument may still be considered as a will, it does not have to be probated. An example would
be a recognition of a natural child
HOWEVER, if a compulsory heir is validly disinherited in the will, the will has to be probated
because it has the effect of a testamentary disposition.
Note:

INSTITUTION OF HEIRS
Art 850: The statement shall be considered as not written unless it appears from the will that the
testator would not have made such institution had he known of the falsity of such cause.
Austria v. Reyes provides: Before the institution of heirs may be annulled under Art 850, three
requisites must concur:
1. The cause for institution must be stated in the will
2. Cause must be shown to be false
3. It must appear on the face of the will that testator would not have made the institution if he
had known of the falsity of the cause
Note: Intent of testator must also be taken into consideration. For example, if he states in the will
I institute X, my adopted child, as universal heir It does not appear the face of the will that the
fact that X was adopted was a determining factor in his institution.

PRETERITION
The preterition or omission of one, some or all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born after the death of the testator, shall annul the
institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall be effectual,
without prejudice to the right of representation.
Break down the provision:

Decree of probate is conclusive as to the wills formal validity

Court may however, pass upon intrinsic validity of a will if the invalidity of the
dispositions can be readily seen in th will

Preterition or omission of one, some or all of

the compulsory heirs in the direct line

Grounds for disallowance of wills: [FIFUSM]

1.
2.
3.
4.
5.
6.

Formalities not complied with [formalities: 804-814, 818-819, 820-821]

If testator was insane or mentally incapable of making the will at the time of its
execution [insane]
If executed through force, duress, fear or threats [force]
If executed by undue and improper pressure and influence on the part of the
beneficiary of some other person [undue influence or pressure]
If signature is procured by fraud [signature fraud]
If the testator acted by mistake and did not intend for the instrument he signed to
be his will [mistake]

Whether living at the time of the execution of

the will or born subsequently, even after the
testators death (better definition)

Shall annul the institution of heir

Devises and legacies shall be valid insofar as
they are not inofficious

Compulsory heirs in direct line: Children or

other descendants (in default of them, parents
or ascendants) This includes
illegit/legit/adopted child
Surviving spouse not included. Surviving
spouse can be preterited and the institution of
heir would still be valid.
Preterition applies w/n CH is:
1) Living at the time of execution of the will
2) Born after the execution of the will
3) Born after the execution of the will and even
after testators death
No heir considered instituted. Intestacy will
occur
Institution of heir may be annulled and
testamentary succession may occur, but
devises and legacies are valid insofar as they
do not impair the legitime

Note: As long as compulsory heir in the direct line got something by way of donation inter vivos
(considered advance on the legitime), legacy, devise, testate succession, by will (though less
than legitime), there is no preterition
3

Succession Tips (Justice Hofilena)

By: Butch Ramiro

FIDEICOMMISSARY SUBSTITUTION

Difference of preterition and disinheritance

Disinheritance

Preterition

Art 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

Express deprivation of legitime

Implied deprivation of legitime

Always voluntary

May also be voluntary but is presumed to be

involuntary (as its an omission to mention
as an heir or though mentioned, isnt
instituted as an heir)

Legal cause is present

Presumed by law to be a mere oversight

What are the elements of a FC? (memorize)

Even a compulsory heir may be totally

excluded

Compulsory heir is merely restored to his

legitime

1.

Art 856/857

2.

A voluntary heir who dies before the testator transmits nothing to his heirs.

3.
4.

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
Balane provides a complete statement of the rule (memorize): An heir, whether compulsory,
voluntary or legal, transmits nothing to his heirs in case of predecease, incapacity, renunciation
or disinheritance. However, in case of predecease or incapacity of compulsory or legal heirs, as
well as disinheritance of compulsory heirs, the rules on representation shall apply

5.

A first heir who takes the property [whole or part of inheritance] upon the
testators death
A second heir [fideicommissary] who takes the property subsequently from the
fiduciary
The second heir must be one degree from the first heir
The first heir is absolutely obliged to preserve the property and transmit it after
the lapse of the period to the fideicommissary heir
Both heirs (first and second) must be living and qualified to succeed at the
time of the testators death

In PCIB v. Escolin, it was held that since there was no absolute obligation to preserve
and to transmit, there was instead a simultaneous institution. Institution of heir subject
to a resolutory condition and the other institution subject to a suspensive condition.

TN transmits nothing, R representation rules apply, NR no representation

Kind of heir
Compulsor
y
Voluntary
Legal

If heir predeceases
testator
TN, R

If heir
incapacitated
TN, R

If heir
renounces
TN, NR

If heir is
disinherited
TN, R

TN, NR

TN, NR

TN, NR

TN, R

TN, R

TN, NR

N/A (because
DH is for
CH/LH)
N/A

Succession Tips (Justice Hofilena)

By: Butch Ramiro

CONDITIONS, TERMS, MODES

LEGITIMES

Differentiate modal institution, conditional institution and institution with a term

Important thing to take note of:

Modal
A mode imposes an obligation
upon the heir or legatee but it
does not affect the efficacy of
his rights to the succession

Art 902 903 and 992 PROVIDE the FOLLOWING:

1) object of institution
2) application of left property
provided
3) charge is imposed by testator

Obligates the heir, heir can

surely get the inheritance but he
has to return if he does not
follow obligations set forth
The inheritance can be
immediately be demanded,
provided a security is given

Conditional
The condition must happen or
be fulfilled for the heir to be
entitled to succeed
[condition is a future and
uncertain event: may be
suspensive, potestative,
casual or mixed]

Suspends the inheritance and it

is not sure if heir will get
inheritance
Even if the heir wants to give
security, he will not be allowed
to demand his inheritance as
long as the condition has not
been fulfilled.

Term
The period, which must
necessarily arrive (e.g.
on dec 12, 2013) or in
certain cases that day
is not uncertain BUT
sure to arrive (e.g.
when X dies), should
arrive for the heir to be
entitled to succeed
[may be resolutory or
suspensive]
Suspends the inheritance
(if suspensive) and
extinguishes the
inheritance (if resolutory)
IF SUSPENSIVE: The
legal heir must give
security in order to enter
into possession of
property before term
arrives.
IF RESOLUTORY: The
instituted heir
immediately entitled to
inheritance, no need to
give security

What is a caucion mauciana?

1.
2.
3.
4.
5.
6.

When surviving spouse [alone] only entitled to 1/3 of the estate:

1.
2.

Marriage solemnized in articulo mortis [near death]

Testator died within 3 months from celebration of marriage

HOWEVER, if they have been living as husband and wife for more than 3 years, surviving
spouse [if alone] will still get 1/2

RESERVA TRONCAL
What is the reserva troncal? (memorize)
Art 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 the relatives who
are within the third degree and who belong to the line from which the said property came.
What are the requisites of the reserva troncal?

This is the bond or security required to be given in favor of those who would get the property if
the condition is not complied with (intestate heir/substitute)
It is required in the following:
1. Art 879: In negative potestative conditions (heir obliged not to do or give something)
inheritance can be taken by instituted heir provided he gives the security
2. Art 882: Modal Institutions modally instituted heir can get the property at once provided
he gives security that he will comply with testators wishes
3. Art 885: Institutions with a term legal heir can enter into possession of the property
before the term arrives provided he gives security

The legitimate children of an illegitimate child can represent the illegitimate child (if IC
predeceases the testator)
The illegitimate children of an illegitimate child can represent the illegitimate child (if IC
predeceases the testator)
The legitimate children of a legitimate child can represent the legitimate child (if LC
predeceases the testator)
The illegitimate children of a legitimate child cannot represent the legitimate child (if LC
predeceases the testator)
Illegitimate parents are excluded by all kinds of children (illegit/legit)
Legitimate parents are only excluded by legitimate children

i.
ii.
iii.
iv.

The property was acquired by a descendant from an ascendant or from a brother or

sister by gratuitous title [transmission by donation or succession by any kind]
Descendant died without legitimate issue (single)
Property is inherited by a descendant by operation of law [transmission limited
succession by legitime or intestacy and not testamentary]
That there are relatives within the third degree [from Prepositus] belonging to the line
from which the said property came.

What are the three transfers that are involved in a reserva troncal
1.
2.
3.

FIRST: by gratuitous title, from a person to his descendant, brother or sister

SECOND: by operation of law, from the transferee in the first transfer to another ascendant.
This creates the reserva
THIRD: From transferee in the second transfer to the relatives within the 3rd degree

Succession Tips (Justice Hofilena)

By: Butch Ramiro
Who are the parties involved?
How is the reserva troncal extinguished?
1.
2.
3.
4.

Origin: transferor in the first transfer

Prepositus: the first transferee (descendant, brother or sister of origin)
Reservor: ascendant obliged to reserve
Reservee: relatives benefited (must be within the 3rd degree from prepositus)

What are the options of the prepositus to prevent the reserva?

1.
2.
3.

Substitute or alienate the property

Bequeath or devise it to the potential reservor
Partitioning the property as assign it to parties other than the reservor

What are the rights of the reservor?

1.
2.
3.

Ownership subject to a resolutory condition, which is the existence of reservees at the time
of reservors death
This right of ownership is alienable but subject to the same resolutory condition
The right of reservoir is registrable

1.
2.
3.
4.
5.
6.

Death of reservor
Death of all reservees
If all entitled reservees renounce and all parties in interest accept such renunciation
If reserved property is totally lost by fortuitous event
When reservees acquire the reservors right [merger/confusion]
By prescription, when reservor holds the property adversely against reservee

123. Explain reserva maxima or reserva minima

A problem arises when two circumstances occur:
i.
Prep makes a will instituting the reservee-ascendant to a whole or a part of the free
portion
ii.
There is left in preps estate, upon his death, in addition to the reserved property,
property not reservable
Reserva maxima: As much as potentially reservable property must be deemed included in the
part that passes by operation of law

What are the rights of the reservees?

1.
2.
3.

Right of expectancy
Right subject to suspensive condition (if reservees survive the reservoir)
Right is registrable

Reserva minima: Every single property in preps estate must be deemed to pass, partly by will
and partly by operation of law