Succession Notes of Atty Estolloso Made 2002 B

Silliman University College of Law – Estolloso Notes in Civil Law
Bar Ops 2002 – Series 21 - den Succession and Donation 1 of 46
Tips
● If you can use legal terms, use them, law has its own set of language;
● Don’t debate on the facts
● Present your answer in chronological manner
● Every fact has its purpose, use them in your answers.
● Before you answer – HAVE A MENTAL OUTLINE!!!
● Read the question very carefully
● Practice your penmanship (i.e., rephrasing UP Answers to the Bar)
● Pray for final denouement
Preliminaries
(EQ: - Estolloso Question – SU Civil Law Professor)
(CQ: - Concepcion Question – UP Civil Law Professor) (C – Concepcion)
(SQ): - Sempio-Diy Question – SSC Civil Law Professor)
CQ: What are the elements of succession?

A: 1. parties
1. object
2. mode
CQ: Who are the parties in succession?

A: Decedent – who is the owner of the property during his lifetime (Art. 775) and the
heir who acquires the property from the decedent upon death of decedent.
CQ: Is a juridical entity included in Art. 775 as a decedent?

A: No, not included in the term “person”
CQ: How do we call the decedent?

A: If he executed a will, he is called the testator/testatrix, if no will, decedent.
CQ: Who is an heir? How does one become an heir?

A: Under Article 782, an heir may be by provision of will or by operation of law.
In other words by will and by law. If one cannot find a provision in a will or law
pointing him as an heir, then he is not an heir.
CQ: The definition of heir does not qualify the term “person” does it include a
corporation?
A: Yes, under Article 1026.
CQ: May the cats be heirs, say 69 cats?

A: No, cats cannot qualify as heirs, because the Civil Code refers only to a human
being. Although in CC, nowhere the term person is defined, but assuming the cats are
included they are still disqualified because it cannot accept.
CQ: Who is a testamentary heir or voluntary heir? How does one become an heir in
the will?
A: One who is named in a will as heir. When he is instituted to the whole or aliquot
part. If given an aliquot part, he is an instituted. If given a specific gift, he is a legatee or
devisee.
CQ: Why is it important to know the distinction of an instituted heir to that of

legatee/devisee?
A: Because it is useful in preterition issues. If there is preterition, the instituted heir
loses his inheritance because effect of preterition is annulment of institution, while the
devise and legacy are not affected/abrogated.
CQ: I give ½ of all my jewelry to Renee, is she an instituted heir or a devisee?

A: She is a devisee. ½ of the jewelry is specific property.
CQ: Suppose ½ of estate?

A: She is then an instituted heir. Same is true with “I give ½ of my property to
Emery because whether or not an heir is instituted heir or devisee/legatee, it is the law
that determines it. It is the giving of an aliquot part thereof that made her an instituted
heir.
CQ: What is the object of succession?

A: The property that is acquired (Art. 776). It is also called the inheritance or estate.
CQ: What are included in the inheritance of a decedent?

A: Article 776 – includes all the property, rights and obligations of the decedent.
CQ: Are all property rights and obligations included?

A: No, per Art. 776, only those which are not extinguished by the death of the
owner/debtor.
CQ: How do we know that these are not extinguished?

A: There is no rule in CC. Several writers devised guidelines. Per Sanchez Roman,
rights are purely personal in the proper sense, not as used in contractual sense, i.e., status
of a person; right is personal because of election. But rights that are patrimonial like,
ownership of a piece land, or bank deposits, as a rule are not extinguished by death in
general. EXCEPTION: usufruct over a piece of property, the death the usufructuary
extinguishes the usufruct.
With respect to obligations, while it forms part of the estate, only those that are
not extinguished except if purely personal in character that only the decedent debtor can
perform.
CQ: Suppose the decedent debtor left P 10M assets but a P15M liability, is the heir
liable for the P5 M balance?
A: No. Under Article 1311, the heir is not liable beyond the value of the property he
received/left by decedent. But note that if the heir paid the obligation, under Article
1429, it is a valid payment, because the obligation remain a valid one (only that the
debtor cannot anymore perform).
CQ: How about a decedent’s corpse, is it an estate?

A: No. Nobody inherits it because it is not a property, it is given to the nearest of kin
for proper burial. Note, that when Jay Ilagan donated his eyes, it was not by virtue of the
Civil Code, but of RA No. 1056.
CQ: When does succession open? What is the right of the heir before the death.
A: Upon the moment of death. The right is merely inchoate.
CQ: When does the decedent die?

A: Consider Article 390 on ordinary presumption of death and Article 391 on extra-
ordinary presumption of death. Take note that the death that will open succession,
includes both actual and constructive.
CQ: In presumptive death, when is a person considered dead, date of disappearance

or after the lapse of the period? What is its importance?
A: In the CC, relatives born after death are not qualified to inherit. But those alive at
the time of death, can inherit. Thus, if the decedent is presumed dead under Article 390,
he is considered to have died after the lapse of after 4 years or seven year period.
If he is presumed dead under Article 391, he is considered dead form the time of
disappearance. (parang kino-confirm lang natin and kanyang disappearance, that is
apparent already due to the circumstances.)
Upon death of the decedent, the heir does not automatically own the property,
because he is given the opportunity to accept or repudiate it. He becomes the owner
therefore only after acceptance. But acceptance of course can be presumed. When he
accepts later on, acceptance RETROACTS to the time of death of the decedent.
CQ: What are the MODES of succession?

A: 1. Testamentary – if the disposition is thru a will. (Article 779)
1. Legal or intestate – there is no will, and the law will govern on how the
estate will be disposed. (Article 960)
2. Mixed
Note that there is no definition of legal succession, only an enumeration
on how it may take place under Article 960.
Note also that donation mortis causa is a testamentary disposition, the
form therefore in making a donation mortis causa should be that of a will.
CQ: May succession be by contract?

A: No, per Art. 1347. The status of the contract if there is any is a void contract
under Art. 5 of CC.
CQ: Is there any exception?

A: Yes, under said Art.5 provides, “except in cases expressly authorized by law” and
it refers to Article 1080 on partition inter vivos and Article 130 of the CC on donation
proper nuptias of future property under mortis causa. Note, however, that under the
Family Code, it is not anymore considered as contract. Thus, it is technically Article
1080 that survives as the lone exception.
CQ: Who is a legal heir or intestate heir?

A: Those named by law to succeed to the estate of a decedent.
Probate
EQ: What are the issues that are to be resolved in a probate proceeding?
A: 1. Identity – whether or not the will presented is that of the decedent
1. Due execution
2. Capacity of the testator
EQ: Does the probate court resolve issues of intrinsic validity?

A: Generally, no. (pls. See. P. 279 Albano)
E.g., the husband made his heir the concubine, the effect of which are: the will is
void as the wife is excluded and that the concubine is not entitled to the free portion the
institution being against public policy.
● Intrinsic validity means that when the only issue affects the would be probate
proceeding.
CQ: What issues may be raised in probate?

A: Only issues of form, but see Nuguid vs. Nuguid, it was ruled that although
preterition is a question NOT of form, when the nullity of the will, its substantive nullity
is patent, the will shall be denied probate. In Nepomuceno vs. Court of Appeals, the
invalidity as to substance such that there is a patent nullity where the provision in the
will, gives a share to the paramour..
CQ: What is the effect of probate?

A: It established genuineness – meaning the will is not a forgery, and due execution
meaning that in the execution thereof there was testamentary capacity, intent , good as to
form and it was freely and voluntarily made by the testator.
EQ: When the probate court ruled that the will was duly executed, is the criminal
court estopped from filing guilt of forgery on the alleged forger of the will?
A: Yes. Article 838, last par. Says it’s conclusive.
(BAR Q. p.249)
Discussion: a) Reference on the quantum of evidence required…the proof
needed are different…preponderance of evidence vs. proof beyond reasonable doubt.
a. Art. 838 says the finding of the probate court is conclusive.
A probate proceeding is a proceeding in rem. In Mercado vs. Santos, a duly

probated will, found later to be a forgery, will bar prosecution for forgery because there is
no more corpus delicti.
EQ: When may the question of intrinsic validity be entertained?

A: When the will itself contains a void provision. (BAR p. 23)
EQ: What are the characteristics of a will?

A: BAR p. 229 - a will is
1. personal
2. unilateral
3. formal or solemn
4. ambulatory or revocable
5. individual, not joint
6. free and voluntary
7. mortis causa
CQ: What is testamentary succession?

A: Under Article 783, a will is an act by which a person is permitted by law to
control to a certain degree the disposition of his estate.
EQ: What is a nuncupative will?

CA: Oral will. It is not valid if executed in the Philippines. But if it is executed in
Timbuktu where it is a valid will, then by virtue of Article 815 and Article 17, it shall be
valid here. This will is characterized by the recitation of the testator before a scribe of the
disposition of his property. After the scribe wrote the disposition, the scribe signs the
same. Hence, the signature of the testator does not appear in the nuncupative will.
EQ: Is a will executed abroad not in accordance with Philippine law valid?
A: Yes, under Article 815 and Article 17 of the Civil Code.
CQ: Can the last wishes/will of the decedent be evidenced in a video footage?
A: No. It is not the will contemplated in Article 783. While it mentions of an act,
the requirements of the law must be complied with. The definition of a will is not an act
but a document.
CQ: How do you know that the document is a will?

A: Under Article 783, you must look for the disposition of the property mortis causa.
CQ: “I command that none of my property will go to my eldest son, Miguel, he

having attempted on my life.” Is this a will?
A: Yes. Because there is disposition of property mortis causa, indirect lang nga,
because the share of the eldest son will be indirectly given to the other children. This is
called a “revoking will.”
CQ: “I command that the will I executed in Jan. 12, 1999 be without force and
effect” Is it a will?
A: Yes, that is a will. It is a revoking will. There is a disposition mortis cause here.
CQ: What are the general requirements for the validity of a will?
A: 1. Animus testandi – the intention on the part of the person to make a will.
When Jose Rizal wrote the “mi ultimo adios” he was not making a will, because he did
not have animus testandi. The last verse thereof, disposing them to relatives and love
ones does not contemplate a holographic will.
1. Testamentary capacity – those 18 years of age and
of sound mind (*Art. 798). Note that under Art. 796 by
implication no one can be prohibited to make a will. The
prohibition is in Art. 797. – (under 18 years of age). Soundness of
mind is not a prohibition but a qualification.
2. Compliance with formalities
3. Voluntariness and due execution
CQ: Born on Feb. 7, 1960. Executed a will on Feb. 3, 1978, Is it a valid will?
A: Yes. Because under Art. 13 of CC, we count years by the number of days, In 18
years there are 5 leap years. Note that 1960 is also a leap year.
CQ: When is a will executed?

A: When signed.
CQ: How do we know that a person is of sound mind?

A: Art. 799. It is not necessary that the testator be of perfect mind, it is enough that:
1. he knows the nature of the estate to be disposed of
2. he knows the proper object of his bounty and
3. he knows the character of the testamentary act.
Note that a person under Art. 800 is presumed to be of sound mind. If one month
prior to his execution of the will, he was insane and known publicly, he who alleges that
he executed the will during lucid interval has the burden of proving it. If he became
insane after the execution of the will, it does not matter anymore. Supervening insanity
does not invalidate the will.
CQ: What law shall govern the formalities of the will, the law at the time of
execution or at the time of his death?
A: Under Article 795 – the testator acquires a vested right by the continuous validity
of his will. The law at the time of execution.
CQ: What if Ernani executed the will today with only two witnesses. The next year
Congress enacted a law amending Article 795 reducing the witnesses to two, is the will
invalidated?
A: No, because those who are benefited by the invalidity of the will shall have a
vested right on the continuing invalidity of the will.
CQ: Suppose Mayet, is the daughter of a diplomat who grew up in New York and
eventually became a practicing lawyer there specializing in probate cases, came to the
Philippines for registration reasons. Thought she is a resident of New York, her
father, Sherwin won’t let her change her citizenship. While in Manila, she felt heart
burns, prompting her to execute a will, but following New York law as she was more
familiar with it. Is the will valid?
A: No. The will shall be void for failure to follow the formalities required by law. A
Filipino, like Mayet must execute the will using the formalities prescribed by Philippine
laws.
Note: You can only make a holographic will in a foreign country, as it is hard to
look for 3 witnesses who are domiciled in the Phils. and a notary public there.
CQ: What law shall govern the validity of the disposition?

A: The law enforced at the time of execution of the will. In the case of Cayetano vs.
Eunidas(?) – the nurse was naturalized as an American when she executed her will.
Thus, American succession law should govern the validity of her testamentary
disposition. Disposing all her property to her sister without leaving any property to her
mother is valid as it is valid under the State the nurse was a citizen.
CQ: What are the two kinds of formalities governing the making of a will?
A: 1. General formalities/requirements - it must be in writing and in the
language known to the testator. There is no specific form or as to the writing material.
The failure to conform to this requirement shall make the will invalid for failure to follow
the requirements of form under Article 839.
1. Specific requirement – i.e., notarial and holographic will formalities.
CQ: How do we know that the language is written in the language of the testator?
A: The testator is presumed to know the language of the place, but it is still a
rebuttable presumption. In the case of Acop v.s Perazo involving a wealthy Igorot, his
will was opposed that his will written in English is void because it is not in the language
not know to him, he being an illiterate. The SC rejected the contention on the basis that
Igorot man could speak English despite that he cannot write and read.
But in Soroza vs. Honrado where the will wrote “this is my last will and
testament written in English, a language known to me” …”this has been translated to me
in the dialect by the lawyer.” The SC ruled that it is obvious that the will was not written
in the language known to the testator.
CQ: What are the formalities of a notarial will?

A: Article 805 provides a) ordinary formalities b) special formalities
These requirements are mandatory in nature and cannot be waived.
CQ: What is meant by the requirement that it must be “subscribed by the testator?”
A: Meaning that it must be signed by the testator. The initial of the testator is
sufficient for as long as he intended it to be his signature in subscribing the will.
The meaning of the requirement of “FULL SIGNATURE” is that in

authenticating any alteration in the holographic will shall be the “full signature” he used
at the end of the will as that he used in the authentication. Thus if the testator used his
initials in subscribing the will, then placing his initials in the authentication shall be
sufficient as “full signature.”
CQ: Suppose he signed it not in a customary manner, will it automatically invalidate

the will?
A: No, but it is a basis for suspicion for investigation.
CQ: What if it is a pen name? Thumbmark?

A: If intended by the testator, it will suffice. But then, it may be an indication for
suspicion for investigation.
CQ: Where must the testator sign?

A: At the logical end, not at the physical end. This is the meaning of the phrase “at
the end thereof.”
CQ: Suppose the testator cannot sign, is he prohibited from making a will? How
may he comply?
A: Under the law, he may ask somebody else (called DELEGATE) to write his name
for him upon the condition that the DELEGATE must sign upon the testator’s EXPRESS
direction AND in the PRESENCE of the testator AND three witnesses.
CQ: What name must the delegate write? How will he write the name of the
testator?
A: The name of the testator and not his own. Any stroke, basta name of the testator.
CQ: Pwede ba I-type ng delegate?

A: Per SC, the delegate must write the name of the testator in his own hand. If the
delegate wrote his name and did not write the name of the testator, the will is NOT valid.
The delegate may not write his own name.
CQ: Who may be a delegate?

A: The law does not provide. But if you will look at the reason behind the
requirement (per Dr. Tolentino), it is clear that the delegate must know how to write and
must be able to understand the express direction of the testator.
CQ: May one of the witnesses be a delegate?

A: Two schools of thought – The first school is the Tolentino block which posits the
idea that anybody can be a delegate, even one of the three witnesses. Citing Barot vs.
Bacungan. The second school is the Caguioa block having the opinion that the three
witnesses be a delegate citing In Re Will of Tanjuco.
See the case of Cruz vs. Villasor.
CQ: Suppose the testator scheduled the signing of the will, but the witnesses came
late. Tired of waiting, he signed the will. When witnesses arrived, he told them that he
already signed them. Is the will valid?
A: No. It is not sufficient that the testator acknowledged or told the witnesses that he
signed the will, the witnesses must see the signing.
CQ: Must the witnesses actually see the signing? In the case of Jaboneta vs.
Gustilo, 5 Phil, the very photographs that evidenced the signing ceremony of the will
were used by the oppositors to invalidate the will. In the photographs, it was seen that
when the testator signed the will, one of the witnesses was not looking or was turning
his back as if he left.
A: No, it is enough that the witness was actually and physically present in such
position in relation to the testator that he could see everything which took place by
merely courting his eyes in the proper direction, and without any physical obstruction to
prevent his doing so…this case has been reiterated in the case of Nera vs. Remando.
CQ: If the testator asked a delegate, must the 3 witnesses see?

A: Yes. The presence contemplated is “conscious presence.” The delegate must also
sign the name of the testator before the testator and the 3 witnesses.
CQ: What is meant by “attest;” “subscribe?”

A: To attest means to witness. To subscribe means to sign.
CQ: Where will the witnesses sign? (specific requirement)

A: Article 805 requires two (2) sets of signatures. For the testator and witnesses, the
first set of signature shall be at the logical end of the will. The second set shall be on the
left margin of each of the pages except the last. Note that in Taboada vs. Rosal the SC
ruled that the signing of the 3 witnesses at the left margin in the last page is substantial
compliance. In Matias vs. Salud it was ruled that the witnesses may sign the will by
thumbmarks. When the thumbmark is used because the witnesses are illiterates, the
signing is VOID. If the thumbmarks were really intended to attest and subscribe, then it
is valid. The excess in the number of witnesses is a mere surplusage.
CQ: Is there an order of signing?

A: Under the strict view, the testator must sign first before the witnesses. Under the
liberal view, for as long as the signature making is done in one continuous transaction,
the will signing is valid. The witnesses must sign in the presence of one another.
CQ: Suppose the will is written on the sheets back to back and all the marginal
signatures were only at the front, is the will valid?
A: No, the requirement is strict, it talks of pages not sheets.
CQ: What is the effect if one page does not contain marginal signature? Is the
whole will valid or only the page?
A: In the case of Icasiano vs. Icasiano the court allowed probate even though the
original copy lacked one signature. The court relied on the duplicate copies which
contained all the signatures of the parties. The court deemed the carbon copies as
original copies.
CQ: Suppose the signatures were on the right margins, will it invalidate the will?
A: No, there was substantial compliance. It served the purpose behind the
requirement. (puede sa top or bottom)
CQ: What is meant by “all pages numbered correlatively in letters?”

A: It means that “ page one of six pages” are written.
CQ: Should the attestation clause and acknowledgment be included in the counting
of the pages?
A: No. In the case of Abangan vs. Abangan it was ruled that the pages to be
counted, are only up to the page containing the signature of the testator.
CQ: What is the purpose of the attestation clause?

A: For the purpose of guarding against the treachery of human memory.
CQ: Must the attestation clause be signed by the witnesses?

A: Per CC, there is no such requirement, but the SC ruled in Cagro vs. Cagro that
“an attestation clause” that is not signed is a mere scrap of paper. An unsigned attestation
clause will make the will invalid, because it is in the nature of a certificate that must be
signed.
CQ: Suppose the witnesses signed the attestation clause at the left margin, is it
valid?
A: SC ruled in Cagro vs. Cagro that it is INVALID. The signing by the witnesses in
this manner only shows that they did not read the attestation clause.
Compare this with Taboada vs. Rosal.
EQ: What is the effect of failure to state the number of pages in the attestation
clause?
A: But the acknowledgment can cure the defect by stating in it the number of pages
in the will. (BAR p. 145 and BAR p. 185)
CQ: May the attestation clause be executed at a different date?

A: No, per Concepcion, to guard against the treachery of human memory it must be
executed after the signing of the will.
CQ: Is an attestation clause embodied in the body of the will valid?

A: Yes per SC in Cuevas vs. Achacoso
CQ: Must the attestation clause be written in the language of the witnesses?
A: No need, it may be interpreted to them.
CQ: What is the effect if attestation clause fails to mention the requirement of law?
A: The general rule on SUBSTANTIAL COMPLIANCE is applicable to all of the
requirements, such that failure to mention the requirement of law shall render the will
VOID. But by way of EXCEPTION, Article 809, pertain to ATTESTATION CLAUSE,
and that its absence therein shall suffice as substantial compliance.
CQ: How about the defect is a total omission of a fact?

A: In Caneda vs. Court of Appeals (Regalado) if the defect in the attestation clause
consist in a total omission of a fact that is required to appear therein, the attestation is
NOT valid. Article 809 does not apply, because it only applies when the defect is in
FORM and LANGUAGE. Per this ruling, evidence aliunde is NOT admissible but shall
only be constrained to the four (4) corners of the will. Take note of the position of JBL
Reyes saying that Article 809 is very broad!
CQ: Must the notarial will be dated?

A: No. It is not required, it may be proven by parol evidence.
CQ: What must be acknowledged with the notary public?

A: The testator acknowledges that the will is his and the witnesses acknowledge the
attestation clause as their’s.
CQ: What is a certificate of acknowledgment? When should it be prepared?

A: It is the certificate evidencing the acknowledgment by the testator and witnesses
before the notary public. The law does not require that the lawyer/notary public execute
the certificate on the same occasion as the acknowledgment. It may even be made after
the death of the testator.
CQ: What is the so-called special requirement?

A: It is an additional requirement applicable when the testator is deaf or deaf mute
and also if he is blind.
CQ: Must the two persons required to read the will one after the other?
A: The law will allow communication by them even by helping one another. (Article
808) see Garcia vs. Vasquez and Alvarado vs. Gaviola
CQ: Suppose the notary public is one of the three witnesses, is it allowed?
A: No. In Cruz vs. Villasor it was ruled that the notary public before whom the will
is acknowledged is disqualified to be a witness. Note that if there were 4 witnesses
including the notary public, the will is valid, the witnessing by the notary public being a
surplusage.
CQ: What is a holographic will and what are its three (3) essential requirements?
A: It is will entirely written by the hand of the testator. The three essential elements
are that it must be entirely written by the hand of the testator; signed by the hand of the
testator and dated by the hand of the testator.
CQ: Can an illiterate make a holographic will? Like for instance when he copied in
his own handwriting the handwritten sample of a will?
A: Yes, per Paras, but over the sarcastic objection of Concepcion “no comment ako
dyan”
CQ: Suppose, the wife of Samuel inserted in his holographic will additional
dispositions, is the insertion valid? Will it invalidate the will?
A: For an alteration in the holographic will to be valid, it must comply with Article
814 of the CC. Any authentication by Samuel/testator on the insertion by his wife is not
enough compliance with Article 814.
Note that in Aujero vs. CA, it was ruled that the presence of the insertion cannot
invalidate the holographic will because the validity of the holographic will cannot be left
to the caprice of a third party. But the moment the testator authenticates the insertion
written not by him but by his wife, the alteration becomes part of the will, and since it is
an improper alteration, it shall invalidate the will!
CQ: What if the date is “Feb. ’61.” Is this a sufficient date?

A: Yes. In Roxas vs. de Jesus the SC ruled the under the New Civil Code, it
mentions of “date” unlike in the old law where the requirement was “day, month and
year.” What invalidates a holographic will is the placing therein of a FALSE DATE.
The rule is “date having a connection with the making.” E.g., if the will was finished in
2001, the dating thereof of 2002 is valid because it shall have the effect of revalidation.
But the dating thereof of 1995 is a false date.
CQ: What signature is sufficient?

A: Any signature is sufficient. Take note on the meaning of FULL SIGNATURE in
the authentication requirement. Note also the ALTERATION is only allowed in
HOLOGRAPHIC will. There are two (2) kinds of alterations, one is found in the BODY
of the will to which Article 814 shall apply. If the alteration is found OUTSIDE the
body of the will then it is an alteration, and therefore must be authentication, meaning
SIGNED and DATED.
CQ: What three (3) kinds of alterations that may be introduced in a holographic
will?
A: 1) Insertion 2) Deletion 3) Substitution. In Kalaw vs. Relova if
an alteration is NOT authenticated, it will not take effect. When the name of the heir
was cancelled and replaced over it the name of another heir, the written new name is not
valid because it was not signed and dated (authenticated); but it does not restore the
cancelled name because it is the rule on cancellation that applies, and under Article 830,
cancellation does not need authentication. (But see opinion of J. Vitug)
CQ: May a lost holographic will probated?

A: No. But in Gan vs. Yap the use of a photostatic copy or a carbon copy is
sufficient. See the cases of Rodelas vs. Aranza, Araula vs. Singson – the requirement
in the law that at least two witnesses be sufficient (lost will) is merely DIRECTORY.
CQ: On witnesses to a notarial will, who are disqualified? Qualified? May an alien
be witness?
A: Disqualified – Art. 821; qualified – Art. 820. An alien may be a witness, because
citizenship is NOT a requirement, only domicile.
CQ: Suppose Lowell was released from prison for a 30-year service of sentence for
statutory rape, is he disqualified as a witness?
A: No. Limited only to “falsification” “perjury” “false testimony”
CQ: Can incorporation of a document by reference be allowed in a holographic

will?
A: No. Article 827 applies only to a notarial will.
CQ: Queenie executed a notarial will but it was void because the attestation clause
was not signed by the witnesses (Cagro vs. Cagro) So she executed another will
complying with the requirements, but he referred to the old will by incorporation. Is
the will valid?
A: There are two forms of republication, one form is re-execution and the other is by
incorporation by reference. If the defect is invalidity due to form, it cannot be republished
by incorporation through reference but by re-execution. Thus, in the making of the
codicil, which normally refers to a prior will, for it to be effective, it must be executed in
a case of a will also, i.e., notarial will or holographic will.(Article 826)
CQ: Noticing that the notarial will lacks formality as to FORM, Mimie made a
holographic will be reference only. Is it valid?
A: When a will is void as to FORM, it cannot be under Article 835 be republished
through mere reference. It can only be republished by REEXECUTION. But if other
than FORM, republication through reference, is allowed. Examples of reasons other than
form is absence of testamentary capacity.
CQ: If the testator erased his signature in a notarial will, is the will revoked?
A: Yes, through obliteration.
CQ: If he re-sign it, is the will republished?

A: No, because he must sign in the presence of witnesses and before a notary public.
But in a holographic will, the re-signature shall have the effect of republication BUT HE
MUST write a NEW DATE.
CQ: When is there revival?

A: There is revival because of an implication under Article 837 stating that the
revocation of second will (with express revocation) by the third will does not revive the
first (kasi EXPRESS yung second). There is revival when the second will IMPLIEDLY
(two cannot stand altogether) revoked the first will and the third will EXPRESSLY
revoked the second will. The second will may be revoked through express revocation or
act of destruction.
EQ: Can a will be probated during the lifetime of the testator?

A: Yes. Called the ante-mortem probate. (refer to Art. 838)
EQ: But can the testator after probate during his lifetime, revoke the will? What if it
is stipulated that it is irrevocable?
A: Irrevocability of the will is a void provision. (BAR p. 209).
It cannot be a subject of a waiver!
Yes the testator can revoke the will, it is ambulatory in nature.
EQ: What evidence are necessary for the allowance of the will?
A: pls. See Albano p. 279
EQ: Where is the venue for the probate of the will?

A: Residence of the decedent.
CQ: What are three (3) kinds of revocation of will?

A: 1) by implication of law 2 and 3) acts of the testator
By implication of law – i.e., before the testator died the property is sold by him;
or the heir commits an act of unworthiness. By acts of the testator are of two forms, first,
by subsequent will or codicil and second by acts of destruction.
CQ: What requisites for acts of revocation to be valid?

A: The testator must have 1) animus revocandi 2) testamentary
capacity and 3) perform the act of revocation either by subsequent will/codicil
which must be allowed for probate or any act of destruction.
CQ: Why is testamentary capacity is necessary?

A: Because by undoing the testamentary disposition is in effect transferring the estate
to another heir, that is the legal heir.
CQ: What are two kinds of revocation thru a codicil?

A: Total revocation and partial revocation; Express and implied revocation. It is
total revocation if it is the entire disposition which is revoked, and partial if not all.
Express when the will (codicil) states in categorical terms in the “revocatory clause” that
the prior will is so revoked. Implied, when even the express terms, the two wills cannot
stand together.
CQ: What are the requirements for the subsequent will to be valid?
A: There must be testamentary capacity, animus revocandi, revocatory clause and

probate of the subsequent will.
CQ: May a subsequent will be subject to condition i.e., the prior will be revoked if my
son cannot pass the bar? How about resolutory condition?
A: Revocation may be made subject to a suspensive condition but not to resolutory
condition.
CQ: What are the requisites of acts of destruction?

A: These are 1) animus revocandi 2) testamentary capacity 3) Act of
destruction 4) Appearance of an act of destruction on the will itself. Examples are
tearing, canceling, obliterating…note that these are NOT exclusive, they are just
examples in the law. For instance, the testator without realizing that the will is inside the
envelope, the testator threw to the fire. Is the will revoke? No, because there is no intent
to revoke.
CQ: Suppose in a party, the testator and the heir quarreled, thus the testator
announced openly that he is revoking the will, but before he could reach his room
where the will was placed, he died due to heart attack. Is the will revoked?
A: No. Because there was no act of destruction.
CQ: Suppose the testator threw the same to the fire but the maid timely retrieved it.
When the testator died, the will was presented to probate, may it be allowed?
A: Yes, because it was not destroyed. But take note that when there is any sign of
destruction, i.e., burning or blackening/browning of the edge, it is sufficient. The
principle is that the act of destruction must be determined only within the four corners of
the will.
CQ: Suppose the testator tore the will halfway, but he changed his mind and
repasted it, was there a valid revocation?
A: No. For revocation to be complete, the testator must have finished the act of
destruction. If the testator tore the paper but he intend to tear it once more when he
changed his mind because the heir pleaded for forgiveness, there was no revocation yet.
CQ: May the testator delegate the act of destruction?

A: Yes, subject to the additional requirement that 1) the delegate must destroy the
will thru the express direction of the testator and 2) the destruction must be carried out
by the delegate in the presence of the testator.
CQ: What is the effect of the ratification by the testator of the act of the delegate?
A: Per Dr. Tolentino, the ratification is not valid.
CQ: If the will cannot be found, is it presumed revoked by the testator?

A: In the case of Gago vs. Mamuyag it was ruled that when a will can’t be found
after the death, and it was shown that the will is in the possession of the testator when last
seen or if he had a ready access to it before he died, a REBUTTABLE presumption exist

that it was destroyed by him.
CQ: What is the doctrine of dependent relative revocation?

A: It is a species of revocation based on a false cause. It shall occur when the second
will which expressly revoked the first will, which belief by the testator that the second
will was valid, led to the destruction of the first will. In the event the second will is not
allowed probate, the doctrine applies making the first will revived, because the
destruction thereof was dependent on the validity of the second will. Thus, if the first
will was torn, the act of tearing shall be invalid.
The principle behind this doctrine is that revocation may be based for any reason,
or it could be no reason at all. But if the suppose reason relied upon is false, the
provision under Article 833 applies. The revocation of a will based on a false cause or
illegal cause is null and void.
CAVEAT – you are allowed to introduce evidence under Article 833 if the will
states a REASON, why the will was destroyed. But if the revocation is by act of
destruction, the allegation…(ngee)
CQ: Do the rules apply to holographic will?

A: Yes, same rules apply, but take note of the case of Kalaw vs. Relova that the
alteration requires authentication thru a full signature. Note further that the deletion or
cancellation does not require authentication under Article 830.
EQ: May succession be conferred by acts inter vivos?

A: While the testator is still alive, he either makes a will and have it probated or have
the property partitioned.
EQ: Can a person do acts inter vivos which are considered for purposes of
succession?
A: Article 839 – probate; and Article 1080 – partition
EQ: Distinguish mortis causa donation from inter vivos donation. What is the main
criteria?
A: BAR p. 392 – the main criteria is the test of revocability.
Institution of Heirs
SQ: What is the meaning of “institution of heirs?”

A: It is the act by virtue of which the testator designates in his will the person or
persons who are to succeed him in his property and transmissible rights and obligations.
(A840)
EQ: What are the requisites to a valid institution of heirs?

A: 1. With to the heir himself, he should be CLEARLY DESIGNATED;
1. The heir should be capacitated.
Per Sempio-Diy, it refers only to voluntary heirs and cannot affect the legitime.
Applicable also to devisees and legatees. Exists only in testamentary succession. Even a
conceived child can be instituted, subject to Art. 40 and Art. 41. There must be no preterition,
except that devises and legacies are valid as long as legitime is not impaired. The institution must
be effective, that is, there is no predecease, repudiation or incapacity of heirs. The will must be
intrinsically and extrinsically valid. If the institution is partial, the remainder of the estate goes to
the legal heirs.
A Voluntary heir who dies before the testator or who proves to be incapacitated transmits
nothing to his heirs. a) there is NO representation among voluntary heirs b) there is also NO
representation in legacies and devises.
Remember also that a person who renounces cannot be represented.
CQ: How is institution made?

A: By designating him as to name and surname (Article 843). Although the heir was
not described by name but so long as the person described can be ascertained there was
proper institution.
EQ: Can the compulsory heir be instituted to the free portion?

A: Article 844 “in any other manner”
CQ: How much may be given to the heir instituted?

A: It depends. If there is no compulsory heirs, it may be all including strangers. Note
that institution may be for no reason at all. Its basis is pure act of liberality.
CQ: What if the institution is through a reason, and the reason turned out to be
false, is the institution valid?
A: Yes, the false reason is deemed not written because of the pure act of liberality
nature of the institution. EXCEPT: when the institution could not have been made
without said reason. But the reason must be EXPRESSLY written in the will and NO
evidence ALIUNDE is allowed per Article 815.
CQ: What are meant by the principles of equality, simultaneity and individuality?
A: Equality – heirs designated without designation shall share equally. Simultaneity
– heirs are deemed instituted at the same time though they may be of different classes.
Individuality – when simultaneously instituted, although mentioned as a class it shall get
the same share as those individually instituted.
EQ: What is preterition?

A: BAR p. 250
There is preterition when : nothing was given by will; the compulsory heir must
not receive anything under intestacy or anything by donation inter vivos.
Per Sempio Diy “Art. 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 testator,
shall annul the institution of heir; but the devises and legacies shall be valid in so far 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.
EQ: What is the effect of preterition?

A: Under Art. 854, it shall annul the institution of a voluntary heir.
SQ: Kathia has three daughters, Renee, Mimie and Queenie. She makes a will
instituting Mimie and Queenie and her friend Mayet. Who gets her estate?
A: Mayet gets nothing since she is a voluntary heir, not a legatee or devisee. The
institution is annulled because of preterition or the omission of Renee. But if Mayet was
a legatee or devisee, the gift is valid if not inofficious. If inofficious , it is reducible.
EQ: Distinguish preterition from ineffective disinheritance?

A: In preterition, the will is annulled. While in ineffective disinheritance, the will
shall subsist but the legitime of the heir supposedly disinherited shall be fulfilled or given
to him.
EQ: In ineffective disinheritance, how much should the compulsory heir receive?
A: Only the legitime.
EQ: Supposing A and B are instituted as heirs without referring to the share how
much should each share?
A: Equal sharing.
EQ: Distinguish PER CAPITA and PER STIRPES.

A: Under Article 975, the nephews and nieces will be entitled to representation only
when they concur with at least one uncle or aunt. If they don’t, then they shall inherit by
their own right. In the first they inherit per stirpes, whereas in the second per capita.
Per Sempio-Diy, When there is representation, the heirs inherit per stirpes, not per
capita. (Art. 974) That is, all those in a group inherit in equal shares, because per stirpes
means inheritance per group.
EQ: What are the requisites of preterition?

A: see Albano p.288 on adopted child. (*BAR p. 250)
EQ: Which should be preferred accretion or substitution?

A: Substitution will prevail!
SQ: What is the meaning of substitution of heir?

A: It is the appointment of another heir in default of a or after the heir originally
instituted (Article 857)
SQ: What are the purposes of substitution?

A: To prevent the property from falling into the hands of people not desired by the
testator. To prevent intestate succession. To allow the testator greater freedom to reward
those more worthy of his affection and bounty than his intestate heirs. There may also be
substitution of legatees and devisees.
Remember that the cause of substitution need not be stated, in which case the
substitution applies in predecease, renunciation or incapacity.
EQ: When can simple substitution be made?

A: ONLY when there is 1. Predecease 2. Repudiate 3. Incapacity
If the testator specifically states the mode (CAUSE) by which substitution may be
made, in case of non-fulfillment, ACCRETION will be observed. These instances are
exclusive (Kilayko vs. Tengco)
CQ: Compare fideicommissary substitution from Legacy of Usufruct.

T---- Usufructuary --- naked owner (heir) (Article 869)
T---- First heir ------- second heir (Article 868)
A: In a legacy of usufruct, there is no substitution, meaning the usufructuary in not
an owner and in no event that it could get the property, while in fideicommissary
substitution, the first heir may have a chance of owning the property by virtue of
substitution if the second heir does not survive the first heir or for failure to inherit.
LALABASAN SA BAR!!!! DAW ITO
CQ: Re rich American couple Hodges – PCIB vs. Escolin:
Brother and Sisters -- Husband and Wife ----Brothers and Sisters
The rich wife instituted her husband to all her property subject to the resolutory
condition that he should dispose of it. In the event he cannot dispose of them all, the
Brothers and Sisters of the Wife are instituted to the undisposed property via
suspensive condition. The B and S of the Husband contend that there was no
fideicommissary substitution making the B and S of the Wife as second heir because
there was no obligation on the part of the Husband to preserve the property for B and S
of Wife. The B and S of Wife argued that there was only simple substitution, thus they
are entitled. Who is correct? Who shall inherit?
A: Both are not correct, the Husband is instituted to a resolutory condition while the
Brothers and Sisters of the Wife were instituted to a suspensive condition. Thus, the
Brothers and Sisters shall inherit.
CQ: Re: Kilayko vs. Tengco
Parents
Maria B Brother and Sisters (1)
N Brothers and sisters (2)
In the event the N dies without issue, the Brothers and Sisters (1) shall inherit.
What is the ruling of SC?
A: There is no fideicommissary substitution, as there is no provision in the four

corners of the will. It is not also a simple or vulgar substitution because there was no
predecease, incapacity nor repudiation. But contrary to PCIB vs. Escolin, Brothers and
Sisters (2) inherit. (strongly dissented by Concepcion)
EQ: What are the requirements of a fideicommissary substitution?

A: (BAR p. 250)
Per Sempio-Diy, in fideicommissary substitution, the testator institutes a first heir or fiduciary, but
he must preserve and transmit the estate to a second heir called the fideicommissary or beneficiary subject
to the conditions: that the substitution does not apply to the legitime; that the fideicommissary substitution
must be EXPRESS (the obligation to preserve and transmit the property to the second heir is clearly
imposed; the second heir should NOT go beyond one degree or one transfer from the first heir. (A863)
Both heirs inherit from the testator. Both heirs must be LIVING or at least conceived at the time of
testator’s death. The second heir acquires his right from the time of the testator death. If he dies before the
first heir or fiduciary dies, his (second heir’s) right passes to his heirs. (A866) The first heir enjoys the
property almost like a usufructuary, so he CANNOT ALIENATE the property. He is entitled to refund of
useful improvements, legitimate expenses and other credits (A865) One degree means one generation or
one transfer (so (per Sempio Diy) the second heir can be a juridical person (corporation) Since the
substitute must be one degree from the first heir, he must be a parent or child of the first heir. He
CANNOT be a BROTHER, because brother is two degrees from the first heir. The nullity of the
fideicommissary substitution does not prejudice the validity of the substitution does NOT prejudice the
validity of the institution of the first heir. The fideicommissary clause is simply deemed NOT written.
SQ: Myla instituted Adrian as first heir and Beethoven, Adrian’s brother, as
fideicommissary or second heir. Myla died and her property passed on to Adrian.
Upon Adrian’s death will Beethoven get the property?
A: No. The fideicommissary substitution is not valid because Beethoven is second
degree from Adrian. Property will go to Adrian’s heirs, testate or intestate.
SQ: Doming instituted Michael as first heir; Michael’s son Lowell as second heir;
and Lowell’s mother Renee as third heir. Is this a valid fideicommissary substitution?
A: As far as Michael and Lowell are concerned, yes. But as to Lowell’s mother,
Renee, no, because she is not one degree from Michael; in fact, she may not even be
related to Michael by blood. But she may still get the property from Lowell by testate or
intestate succession.
EQ: Can a testator prohibit an heir from alienating the land for more than 10 years
(in his will)?
A: The limit is 20 years in fideicommissary substitution.
EQ: Testator---- B --- C-- Child

10 yrs 10 yrs
Is the situation allowed? Is it not that the period is more than 20 years?
A: Article 870 – an exception – is fideicommissary substitution.
EQ: Can the fideicommissary substitution include the legitime?

A: No. because it may not burden the legitime.
Partition is one of the possible EXCEPTION under Art. 872 and Art. 904 to the
provision that the legitime should not be burdened.
If the fideicommissary is void, the nullity (Art. 868) of the first heir is NOT
affected but take note of Art. 867 par. 4
CQ: What is meant by “must not go beyond one degree?”

A: Per SC of Spain, Scaevola, Caguioa, JBL Reyes, Puno and Jurado – “transfer”
Per Manresa, Tolentino and Paras – “relationship”
Per Palacios vs. Ramirez - “relationship” – thus under this a corporation cannot
be second heir.
Conditional Testamentary Disposition
CQ: What are those conditions that when imposed are deemed not written?
A: Article 873 – Impossible, illegal, immoral condition
Article 872 – Imposed on legitimes
Article 874 – Absolute prohibition the contract a first or subsequent marriage
Article 875 – disposition captatoria
Note that if the prohibition not to marry only applies to particular situation it shall
be a valid condition, i.e., not to marry a man from Siquijor, what is prohibited is absolute
prohibition not to marry.
Note also the prohibition applies when IMPOSED by WIDOW’s OWN
ascendants. If IMPOSED by the ASCENDANTS of his deceased spouse, then even the
absolute prohibition is VALID.
The example of disposition captatoria is “I will let you inherit this land in Pasay
if you will also give my son in your will the land in Makati..”
In cases of suspensive condition, for the heir to inherit, he must be alive both at
the time of death of the decedent and at the time of the happening of the condition.
Note that there is no representation in testamentary succession, only in legal
succession.
Pending the happening of the condition, the property shall be placed under
administration under Article 880..
SQ: Do dispositions with conditions or terms apply to legitime?

A: No. It applies only to the free portion, never to the legitime.
SQ: What are the kinds of conditional/term institution?

A: a) With a condition: Dax is instituted provided he passes the 2002 bar exams.
b) With a term: Renee is instituted beginning 2003.
c) For a certain purpose or cause (modal institution): Kathia is given P30,000
to be spent for the internment of the testator.
SQ: What is disposition captatoria?

A: A disposition on condition that the heir shall make in his will a provision in favor
of the testator or any other person. The disposition itself is void, not just the condition.
So the heir gets NOTHING because the institution is a NULLITY.
SQ: Absolute condition not to remarry is void as it is against morality and public
policy, what are the exceptions?
A: When imposed on the widow or widower by a deceased spouse. If the condition
is violated, the widow/er gets only his/her legitime. Free portion goes to the intestate
heirs of the deceased. When imposed on the widow/er by the ascendants/descendants of
the deceased spouse.
SQ: What is modal institution?

A: May be a statement of the object of the institution, or the application of the
property for a certain purpose or a charge imposed on the heir or legatee/devisee.
The RULES to be followed include: a) the inheritance can be immediately
demanded provided he gives security for compliance with the wishes of the testator.(Art.
882) b) the heir must return the property with the fruits and interests if obligation is
disregarded.
SQ: Distinguish modal institution from suspensive condition.

A: In suspensive condition, if the condition is not yet fulfilled, property is not
demandable even if security is offered. In modal institution, property is immediately
demandable provided heir gives security for compliance with wishes of testator.
CQ: Who shall inherit the fruits?

A: The conditional heir shall inherit the fruits because the moment the condition
happens, his right RETROACTS to the death of the decedent.
CQ: In a will involving a resolutory condition, if the heir dies ahead of the testator
may his heirs represent him?
A: No. There is no representation in testamentary succession.
CQ: What if heir died before the happening of the resolutory condition although
after the testator died?
A: The decedent’s heirs get the property subject to the resolutory condition.
CQ: In a will involving a suspensive term, what will happen if the heir dies before
the arrival of the term although the testator died ahead of him?
A: Under this situation, Article 878 applies, the heirs of the decedent heir can get the
property because in reality the decedent already inherited, but his entry into the property
is only upon arrival of the term.
CQ: Pending the arrival of the term what shall be done to the property?
A: Per Article 880, it shall be placed under administration. Per Article 885, it shall
be given to the legal heirs first requiring them to post a bond called CAUCION
MUCIANA. Per JBL Reyes, Article 885 is more akin to a situation with a suspensive
term. The caucion muciana shall be posted in order to answer for any damages pending
the arrival of the term..
EQ: What are the different kinds of heirs?

A: Compulsory (who are primary and secondary) and legal heirs.
EQ: What are primary compulsory heirs? Who are the secondary compulsory heirs?
Who are the concurring heirs?
A: (BAR p. 250)
BQ: Distinguish acceptance and repudiation of inheritance from collation.

A: BAR p. 517
EQ: Can minors accept inheritance by will?

A: Must be with assistance of guardian or parents.
EQ: Can a deaf mute who is an illiterate accept inheritance?

A: Yes, under the supervision of a guardian.
EQ: Can repudiation be tacit?

A: No. It must be through a public instrument.
EQ: How about revocation of will, can it be tacit?

A: Yes. Such as when the second will and the previous will are inconsistent and
cannot stand altogether.
EQ: Is repudiation similar to revocation?

A: No. Repudiation- heir; revocation - testator
EQ: Can there be tacit disinheritance?

A: No.
EQ: When is there partial intestacy?

A:
Rule: In partial intestacy, if the legitime and intestate shares are the same, the
division of the free portion is EQUAL. (pro rata)
But if they are different like in the above as to the spouse, then you give the
excess to the surviving spouse, or in another way, you deduct from the spouse (the share
pertaining to legacy/devise and donation) because her/his legitime is in anyway not
impaired. The free portion goes to the spouse, it is not unfair because same free portion
shall answer for the donation, legacy and devise.
When there is no legacy or device, you can go directly to the sharing or table of
shares without checking whether the legitimes have been impaired.
In the following, the sharing (in partial intestacy) (free portion) shall be PRO
RATA because the legitime ratio and intestate share ratio is the same.
1. legitimate children 1:1
surviving spouse 1:1
2. legitimate child 2:2

illegitimate child 1:1

illegitimate child .5:.5

illegitimate child .5:.5
5. Legitimate child 1:1

Illegitimate children .5:.5
6. Illegitimate children
Surviving spouse
7. illegitimate parents
surviving parents
(Art.994. p. 477 Tolentino)
EQ: Can illegitimate parents concur with illegitimate child?

A: No. Any kind of child eliminates the illegitimate parents. Illegitimate parents
only concur with surviving spouse. Read the following Articles in relation to
ILLEGITIMATE RELATIONSHIP – Articles 902, 989, 990 and 992.
Note: Article 972 – on provision that under the descending line, there shall be
representation instead of inheritance by their own right.
In case of the ascending line wherein no right of representation shall be
recognized, in the absence of parents, the grandparents inherit in THEIR OWN RIGHT.
“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 halfblood.
EQ: Can an adopted child be preterited?

A: Yes. Acain vs. IAC
EQ: If adopter died, can an adopted inherit?

A: Yes.
EQ: If natural parents died, can the adopted still inherit?

A: Yes.
EQ: What if the adopted died, can the adopter inherit while natural parents concur?
A: See BAR p. 302-303 – as a rule, no. the relative parents and relatives by
consanguinity shall inherit. According to law, however, if both natural parents are dead,
the adopter takes place of such parents in line of succession.
Take note of the opinion of Sempio Dy, that the natural parents and adopters shall
share equally, this is however, strongly protested by Concepcion, saying that the opinion
has no basis in law. His illustration (intestacy), showed that adopting parents are not
compulsory as compared to natural parents. But see Art. 190 FC.
CQ: Can an adopting parent be preterited?

A: If we follow the position of Sempio Dy, that they are compulsory heirs, then, Yes.
No, if we follow the Concepcion’s criticism, then No. Solano vs. Court of Appeals –
wrong decision daw?
EQ: Is there reserva in an illegitimate line?

A; No, it is limited only to legitimate relationship. (p. 269 Tolentino)
EQ: Is there preterition in the illegitimate line?

A: parang wala yata…meron ba?
EQ: T -----M
Sister A
B C
Property left by T (deceased) and M (spouse) is P2,000,000. What is the share

of M, B and C who are the children of A (deceased sister of T)?
A: M will get P1,500,000 (1M for share in community property, 500k as intestate
shares. B and C will get 500,000.(250k each)
EQ: (testator) Enrique ----W
A B C D (predeceased)
G F E
The property left is P1.2 M. Compute the shares.

A; Heir Legitime Intestate Total

A 150k 90k 240k
B 150k 90k 240k
C 150k 90k 240k
Widow 150k 90k 240k
E 75k 45k 120k
F 75k 45k 120k
G cannot inherit, as he is an illegitimate child. There is a bar between the

legitimate family and illegitimate family.
EQ: T-----W
A B C (repudiate)
D E F G H I
If C repudiated, can H and I inherit?

A: No. Only when there is predecease, incapacity and disinheritance. But if A, B
and C all died, H and I inherits, C’s repudiation is prior to the death of T is invalid, thus
H and I inherit in their own right.
EQ: T
Legitimate illegitimate
A B (predecease)
C D E F
Who can succeed?
A: Only D cannot succeed.
EQ: How about if it is F in the above example who died (B also predeceased), who
can inherit?
A: None, among them. T cannot succeed, because there is no reciprocity here, only
the father inherits from the illegitimate son in an illegitimate relationship. Neither E can
inherit because there is a bar. (See Art. 902 and 989, the bar issue is A. 992) Under Art.
902, the illegitimate (F) can represent B against T (grandfather.)
(BAR . pp. 37, 38, 60, 68 and 104)
REPRESENTATION
EQ: When does the right of representation take place in succession? In what line
does it take place?
A: (BAR p. 518)
Note: There is no representation in the ascending line. Allowed only in the
descending line. There is no right of representation in testamentary succession, only in
intestate succession.
CQ: A
B C
D E F G
May B represent A? May G represent C? May F represent C? May E
represent B?
A: B may represent A. G may also represent C. Yes F may represent C. No. E
may not represent B.
SQ: What is representation?

A: It is a “right created by fiction of law, by virtue of which the representative is
raised to the place and degree of the person represented, and acquires the rights which the
latter would have if he were living or if he could have inherited.” (Article 970)
SQ: When does representation exist?

A: In testate succession - a) exists in predecease, incapacity and disinheritance b)

covers only the legitime, which goes to the representative by operation of law c) there is
no right to represent a voluntary heir.
In intestate succession – a) exists also in predecease and incapacity b) covers
all that the person represented could have inherited.
In the collateral line, representation takes place only in favor of children of
brothers and sisters, whether full or half blood (Art. 972, sec.par.) Hence, grandnephews
and grandnieces do not represent. A renouncer also may represent but may not be
represented.
CQ: Suppose T has sons A, B and C who survived him. Two months after the
death of T, B died. The illegitimate child of B, F, sued for partition of the property. A
and C opposed on the basis of the illegitimacy bar. Is the opposition meritorious?
A: No. F is not representing B to the estate of T, but inheriting by his own right to
the estate of B who inherited from T, he (B) being alive when T died. (BAR 2001)
EQ: How about in adoption, is there right of representation as to the adoptive

parents?
A: No.
EQ: F
(Predeceased) A B C
D E F
If B and C predecease – PER STIRPES - D, E and F

If B and C repudiate - PER CAPITA – D, E, and F
CQ: Is there right of representation in the collateral line?

A: Yes, but only in favor of nephews and nieces.
EQ: Is there a right of representation in reserva troncal?

A: Generally, No. The right of representation shall NOT be available in the
following:
a. ascendant
b. adoption
c. voluntary heirs
d. illegitimate = re: legitimate relationship (BAR p. 85) (BAR p. 375)
e. collateral
f. reserval troncal – there is, provided that the one representing is within the
3rd degree. (de Papa vs. Camacho)
(BAR p.252)
SQ: Is there representation in the illegitimate line in intestate succession?

A: Yes. There is also representation in the illegitimate line.
EQ: GF (dead)
aunt F-------------M
gratuitous
donation operation of law
(dead) sister propositus
niece
Between aunt and niece, who can inherit?

A: The niece can inherit under the principle of the lower removes the ascendant.
See de Papa vs. Camacho. (BAR p. 281) (BAR p. 327) (BAR p. 386)
EQ: Supposing Sister before she died, repudiated the reservation, is the
repudiation valid?
A: Repudiation is void because M has not yet died. Repudiation is valid only when
death is certain. If M, died, the repudiation of S does not affect the niece and by virtue of
de Papa vs. Camacho, the niece shall have the better right. Feliciano vs. Feliciano
EQ: Can there be reserva troncal in cash?

A: Yes, per Dr. Tolentino, because the propositus did not touch it. (only when) p.
283.
EQ: Can the reservista alienate the property?

A: Yes, subject to the resolutory condition that when the reservatarios survive him,
the property shall inure to them.
EQ: What if the property or reservation was not annotated? Who has better right?
A: Third party in good faith. If the reservista does not annotate, the reservatarios
should do so within 90 days. p. 299 Tolentino.
Moreover, third persons will have a better right than the reservatarios when the
latter fail to annotate his/her right.
EQ: Does the reservista need to ask permission from the reservatarios?
A: No need, because he is deemed the owner thereof.
EQ: Who has the right to the improvements?

A: If made through the nature of time, it belongs to the reservatarios. If through
the effort of the reservista, the increase shall NOT go the reservatarios.
SQ: Suppose the property subject to reserva troncal is expropriated, does reserva
subsist?
A: The reserva continues on the indemnity. If the property is insured and later
destroyed, the reserva continues on the insurance proceeds.
CQ: Suppose P is an adopted child, will reserva arise?

A: No. There is no relatives by adoption.
CQ: Illustrate the correct concept involving reserva troncal in full or half blood
relatives.
A: Two views – Tolentino vs. JBL Reyes and Puno. Per Concepcion, the position
of JBL and Puno is more reasonable.
A--- B--- D A-----B
C E C E
This is the position of JBL and Puno, there is a need for reservation if C donates
to E, a half-blood relative, because there is a possibility that the property will get out of
the family, D being the mother of E and not related to A or C. Therefore, if the brother
donates to a full blood sister, there is no need to reserve.
In the example in the right, (Tolentino) if C will donate to E, and it is inherited
by B by operation of law, per Concepcion, there is no danger that the property will get
out of the family.
NOTE: The propositus must be a legitimate heir
The Reservista must be another ascendant – meaning an ascendant
coming from a different family.
CQ: What is the double consanguinity test?

A: Meaning relative by blood NOT only by the propositus but also by the original
from whence the property came.
SQ: Are proceeds of insurance given to beneficiary subject to reserva troncal?

A: No. Proceeds of insurance given to the beneficiary are not subject to reserva
troncal because this is NOT a donation. If a mother gives a sweepstakes ticket to her son
and the ticket wins and later, the prize is inherited by the father, there is NO reserva
troncal because the prize came from the PCSO, not from the mother.
SQ: Devery received from his mother, Rogelyn P20 Million under her will. She
also had properties of her own worth P40 Million. When the daughter died without a
spouse and without children, she left all her estate (worth P60 Million) to her father,
Jason, in her will. How much is the reservable property?
A: The legitime of the father in his daughter’s estate is P30 Million (1/2 x P 60
Million). Under the principle of reserva maxima, since the P20 Million legitime of P30
Million received by the daughter from her mother can be included or contained in his
legitime of P30 Million, said P20 Million is reservable. But under the principle of
reserva minima, on the theory that only ½ of the P20 Million received by the daughter
from her mother went to the father by operation of law. The reserva maxima is more in
consonance with the original objective of reserva troncal, because it subjects to the
reservation the largest amount possible. But the reserva minima is more just and more
equitable, more in line with the philosophy of the law of socialization of property, and
favored by Manresa and Scaevola.
SQ: How is the reserva extinguished?

A: a) Death of the reservor or reservista
a. Death of all the would-be reserves ahead of the reservor.
b. Accidental loss of the reservable property
c. Prescription (runs from the death of the reservor) – 30 years for real property,
8 years for personal property.
DISINHERITANCE
EQ: What are the requisites of a valid disinheritance?

A: RE: Article 919, the presence of conditions.
The disinheritance must be in a will and that the cause must be with reason.
EQ: Can the testator disinherit the spouse for adultery?

A: Yes, under Article 921 (sufficient causes for disinheriting a spouse)
These are:
1. spouse has been convicted of an attempt against the life of the testator, he
or her descendants or ascendants;
2. spouse accuses testator of crime the penalty of which is 6 years or more
and it was found not true
3. spouse by fraud, violence, intimidation or undue influence causes the
testator to make a will or change a will already made.
4. Spouse has given cause for legal separation
5. Spouse has given grounds for loss of parental authority
6. Unjustifiable refusal to support the children or other spouse.
EQ: Is it necessary for conviction of adultery?

A: No. “Cause for legal separation is (sexual infidelity only suffices) as long as the
other heirs prove.
EQ: What if the testator did not disinherit the spouse and testator was able to get a
decree of legal separation, can the spouse be disinherited still?
A: Yes, by operation of law. (BAR p. 388)
EQ: How about by will?

A: If the will was made after legal separation, it a gesture of forgiveness. If the
will was made before legal separation, the donation is revoked. (BAR p. 535) Guilty
spouse cannot inherit.
EQ: Are there causes of disinheritance which the testator can include in the will
other than stated by law?
A: The enumeration is exclusive. Exclusio unios est exclusio alterius applies.
EQ: Distinguish causes in preterition from causes in disinheritance.

A: Causes in preterition are intentional/unintentional, with or without cause and
preterition annuls institution of heirs. Causes in disinheritance are specifically provided
by law and must be with cause and must be stated in the will. In disinheritance, the
disinherited heir inherits nothing.
EQ: Article 739 and Article 1028. Does Article 739 require conviction?
A: No need for conviction, although the phrase/words “is guilty.” The last
paragraph talks about preponderance of evidence, thus no need for conviction.
Under Article 739, the following donations shall be VOID:
1. those made between persons who are guilty of adultery or concubinage at
the time of donation;
2. those made between persons found guilty of the same criminal offense,in
consideration thereof;
3. those made to a public officer or his wife, descendants and ascendants, by
reason of his office;
In the case referred to in No. 1, the action for declaration of nullity
may be brought by the spouse of the donor or donee; and the GUILT of the
donor and donee may BE PROVED BY PREPONDERANCE OF EVIDENCE
in the action.
EQ: Is disinheritance limited to legitime?

A: Article 915. No. if the person/heir is not entitled to legitime, how much more
to the free portion. Art. 915 “ a compulsory heir may, in consequence of disinheritance,
be deprived of his legitime, for causes expressly stated by law.
EQ: The father disinherited her daughter because she was once a prostitute. Is it
allowed?
A: Disgraceful life does not involve a single act, but if the instance of the father
disinherited by daughter because he sold her to a foreigner ONCE…the daughter can
very well disinherit the father…a mere inducement is even a ground!!!
EQ: The will stated that he will disinherit the child if the latter will not support the
former. Is it valid?
A: No. The will is conditional…the cause when he said so was not yet
existing…but when the cause is existing and the i.e., pardon is conditional, it is valid.
EQ: Distinguish conditional cause from conditional pardon.

A: BAR p. 353
EQ: On disinheritance of a collateral relative.

A: BAR p. 397
EQ: Does pardon by the President, reinstate the heir?

A: No!
EQ: If the son killed the testator’s brother, can he be validly disinherited?
A: Yes, under # 8
Art. 919 # 8 – conviction of a crime which carries with it the penalty of civil
interdiction.
EQ: If the son falsely testified against the testator in a case against him, can the
son be validly disinherited?
A: Yes. It is included in “falsely accusing” phase (the false testimony)
EQ: Suppose the child was an accessory in the killing of the mother, can he be
disinherited by the father?
A: Yes, as long as he knows the intent, but must be before, not after.
EQ: Can a daughter disinherit her father and mother because they consented to
her adoption?
A: Article 920, - grounds for disinheritance of parents; #6 the loss of parental
authority for causes specified in this Code. (please see comments of Dr. Tolentino)
EQ: Can there be a tacit revocation of disinheritance or should it be made in

another will?
A: Tacit revocation is allowed under Article 922 providing “a subsequent
reconciliation between the offender and offended person deprives the latter of the right to
disinherit, and renders ineffectual any disinheritance that may have made.”
Compare with Article 1033 – the causes of unworthiness shall be without effect
IF the testator had knowledge thereof at the time he made the will, of IF having known of
them subsequently, he should CONDONE them IN WRITING.
Article 1033 and Article 922 – both should be in writing.
Whether prior to making will or after knowledge of unworthiness.
EQ: I disinherit my child, because he attempted on my life (convicted). They later

reconciled, though no express condonation in writing. Now both are grounds under
disinheritance and unworthiness. Can the child inherit?
A: Under disinheritance, tacit condonation is allowed. But under unworthiness, it
must be in express writing.
The rule on disinheritance shall PREVAIL because it is deemed superior (intent
expressed by testator) is greater than presumed by the will (law).
The rules therefore on disinheritance shall apply over the rules on unworthiness
only when former is present. (Dr. Tolentino. P.538)
EQ: What if reconciliation is after death?

A: Reconciliation must be before death.
EQ: Who shall prove reconciliation?

A: The person claiming that disinheritance in no longer effective.
CASES:
Lauro Visconde vs. Court of Appeals 2/11/98
Parish Priest of Victoria vs. Rigor 89 SCRA 493
De Papa vs. Camacho 144 SCRA 281
Kalaw vs. Relova 132 SCRA 237
CQ: To what heir does disinheritance apply?

A: Only to compulsory heirs. A testator cannot validly disinherit a voluntary heir
or a legal heir. The provisions in the Code speak only of grounds for disinheritance of
ascendants, descendants and spouse. Acts of unworthiness, however, disqualifies legal
heirs from inheriting.
EQ: If the heir is disinherited due to lawful causes, is it limited only to legitime?
A: No, also to free portion. Per Article 1034 par 3, as a general rule, capacity to
inherit should be at the time of death. Thus, the inheritance or bequeathal is subject to
suspensive condition, i.e., passing the bar two requisites must concur:
a. alive at the time of death of the testator and
b. legatee/devisee fulfills condition
Per Concepcion the grounds under Article 919, 920 and 921 are exclusive.
There are no other grounds.
CQ: Can there be partial disinheritance?

A: No. Disinheritance is always total, the testator cannot disinherit the heir as to
his legitime only. It cannot be subject to a condition. It must be made in a valid will.
The legal cause must be stated. The compulsory heir disinherited must be named.
CQ: What is the effect if the disinheritance does not state the ground?
A: When the ground is not stated or where the ground should turn out to be false,
there shall be ineffective disinheritance.
Remember that reconciliation, which not merely lip service but honest to
goodness shall remove the ground. It the disinheritance has already been made, it shall
be ineffective.
CQ: What is the effect of ineffective disinheritance?

A: It will NOT annul the will but will entitle the disinherited compulsory heir to his
legitime. The instituted heirs shall suffer reduction.
BARQ: Case of the daughter answering her father, and the father disinherited her in
the will. Was there a valid disinheritance?
A: Yes, it may fall under Article 919 par. 6 on maltreatment by word or by deed.
The alternative answer argued that it does not tantamount to maltreatment by word or by
deed.
EQ: Supposing the priest called to give “spiritual aid” to the dying testator, was
made as a voluntary heir. Is he qualified?
A. Yes, if the will is made before confession. If made after the confession, the
provision on the will is not valid.
EQ: Is the disqualification in Art. 1027 absolute, like when the priest can prove
absence of undue influence?
A: Article 1027 is an absolute disqualification that cannot be rebutted. Thus, it
does not matter whether there is undue influence or not.
EQ: Is the priest still disqualified even though the cause of death is not
endangered death feared upon? Does the law say die by last illness?
A: The priest is still disqualified, the rule being absolute; the law says during the
last illness.
EQ: What if testator died a year after confession?

A: The rule of disqualification states for sufficient time (to revoke). Thus, priest
can receive.
EQ: Is a legacy to the sister of the priest covered under the prohibition?
A: Yes. (BAR p. 252)
EQ: How about the sister in law of the priest?

A: Not covered per Art. 1031
Note: The prohibition also applies to doctors.
EQ: Is the consultant doctor disqualified? How about quack doctor?

A: Yes, by analogy as interns are also disqualified.
Note: Art. 1029 – disposition for prayers and various works – ½ church and ½ state.
EQ: Can you make as an heir your soul?

A: The legatee is the church but the real beneficiary is the soul.
EQ: Parents knew that daughter was living an immoral life, upon death of parents,
other heirs asked the court to disqualify her to inherit (IMMORAL LIFE), is she
incapacitated?
A:
EQ: What if the parents merely tolerated the leading of immoral life of daughter,
can the parents disinherit her?
A:
EQ: When the child, who witnessed the killing by mother of father, is the child
disqualified to inherit from the mother if he does not report the crime?
A: Yes. Per paragraph 4 but according to Tolentino, there is no law compelling
witnesses to report a crime such that the failure of the child under paragraph 4, is still
non-executory in the absence of a law.
EQ: Suppose the heir attempted on the life of the testator, later testator instituted
him as heir, can he really inherit?
A: Yes, institution is pardon.
EQ: When is implied pardon given?

A: i.e., sex with the guilty spouse (?) hehe
EQ: When a person is INCAPACITATED, i.e., attempt to life, but after serving
sentence, he was accepted, can he inherit? Is he again capacitated?
A:
EQ: If the father is incapacitated, is there right of representation?

A: Yes. Within 5 years.
COLLATION
EQ: What is collation?

A: Collation has many aspects like bringing of the net distributable assets back; to
determine whether (in restitution) it has to be reduced and what has to be returned;
What is to be returned is the value at the time of donation, not at the time of
death.
EQ: What are the steps before collation?

A: First, compute for the net hereditary estate; Second, collate the donation inter
vivos (legacy cannot be collated because it was not yet given). Third, know where do
you charge the donation? - if compulsory heir – from legitime, if stranger – from free
portion.
CQ: Why do we add back?

A: The law requires the adding back of donation inter vivos in order to prevent the
testator from diminishing the legitimes of the compulsory heirs.
CQ: What value should be added back, the value of the property at the time of
donation or at the time of death?
A: Value at the time of donation.
CQ: Are all donations added back?

A: Yes, as a rule. Except for reasonable contribution to charity or reasonable gifts.
This concept is known as the first sense of collation.
CQ: What is the second sense in collation?

A: Meaning donation inter vivos to compulsory heir is an advance to the legitimes.
CQ: What is collation in the third sense?
A: Collation in the third sense arise when the share of the compulsory heir in the
hereditary estate will result in a deficiency of the distributable assets of the testator.
Thus, the donees shall contribute to the share of the heir through reduction of the property
received by way of donation. The rule here is last in time of donation is first to be
reduced.
EQ: Should donation mortis causa be preferred over donation inter vivos?
Suppose the testator donated inter vivos a car to A but gave the same to B in the will as
involuntary heir to the free portion. Who has a better right?
A: A has a better right. Donation inter vivos is preferred.
EQ: In donation, the rule is first in time, first in right, what if in legacies, what
rule shall apply?
A: Rule is Art. 911, meaning pro-rata, due to the taking effect at the same time
(*of death) (Art. 911 vs. A950) Unless, the testator says one is preferred over the other.
EQ: Where do you charge the donation inter vivos?

A: If compulsory heir, to the legitime. If a stranger, to the free portion.
EQ: If the heir (compulsory) repudiated his inheritance, but not the donation,
where will it be charged?
A: From the free portion, because he does not have legitime anymore.
EQ: GF
donation Father (predecease)
Grandson (by right of representation)

Under the foregoing, where do you charge it?
A: Under Art. 1064, it must be from the legitime of the grandchild.
EQ: What if it is repudiation by father?

A: Grandson inherit by his own right, hence, charge to free portion.
EQ: Donation propter nuptias given by parent to a child in consideration of

marriage, where do you charge?
A:
EQ: Donation made in marriage settlement to wife (not exceeding 1/5 of present
property) and property relations is not absolute community property, where do you
charge it?
A: From the free portion, because the wife is not yet a compulsory heir, a stranger.
EQ: How about when there are no legitime, no heir, no donation, all legacies, is
there a need for collation?
A: No need to collate.
EQ: Consider the following: P10,000 in will for services rendered; P15,000 to
C – education; P30,000 to D – for support. What will you apply, Art. 950 or Art. 911?
A: Art. 950 will apply if the only issue affects legacies and donation. (no donations
that affects the free portion) But when there are donations Art. 911 applies, wherein, the
donations are to be given respect over legacies and devises. Under Art. 950, pro rata.
EQ: How about donation for elementary or high school education. Is it

collationable?
A: No. This also included medical… under Art. 1067.
EQ: How about expenses for a career, like law, medicine? Is it subject to
collation?
A: No, to legitime. But yes to free portion.
Note that Art. 1067, literally is not subject to collation either to legitime or free
portion. But other legacies, when said NOT collationable, it refers to NON-CHARGING
TO THE LEGITIME. But please take note of comment of Tolentino on educational
expenses for career, wherein he said that it should fall under Article 1067.
EQ: What is the meaning of Article 1062 when it says “no collation?”
A: Don’t be misled, because it meant that if it expressly stated that it will not be
collated, it will not be charged to the legitime. So only Art. 1067 that should be literally
interpreted.
CQ: May the donor provide that the donation shall not be collated, what is the
meaning?
A: No. It shall only mean that the donation shall not be charged to the legitime but
to the free portion. The rule is that all donations shall be collated.
EQ: Son paid for the campaign expenses of the father, is it subject to collation?
Where will it be charged?
A: Article 1069.
EQ: Can the creditor go against the donee?

A: No, because the nature of collation is not to pay the debt, but to determine
distributable estate. So there could be a situation where the net hereditary estate is zero
yet, there is a net distributable estate because there are donations made.
The situation where the donation may be revoked pertains to the donation made
after the debt was incurred, and it can be proven that the donation was made to defraud
creditors.
EQ: What if the donation is inofficious, but the donee is insolvent?

A: The other donees shall bear the expenses pro rata.
Note: Art. 909 on the Rule that donation be given to children should be charged to the
legitime…if to strangers – charged to the free portion.
EQ: Can the donations be alienated?

A: Per Art. 1071, donations of course can be alienated.
EQ: Supposing the heir will consider the return of the property, will he have to
return the whole or the portion equivalent only? Say 10,000 increased to 50,000?
A: Portion only. Value is basis.
Notes: See: Article 1072 and 1064. Read Jurado p. 616. \
Legacies and devices are not collationable!
INTESTATE SUCCESSION/LEGAL SUCCESSION
SQ: What is legal succession?

A: That kind of succession prescribed by law (and presumed) by it to be the desire of
the deceased) which takes place when the expressed will of the decedent has not been set
down in a will.
SQ: What is the basis of legal succession?

A: Because unexpected death may come to any person, the law presumes what would
have been his last wishes had he executed a will while still alive, taking into
consideration his love and affection for those closest to him.
SQ: Is there reserval troncal in legal succession?

A: Yes. There is also reserva troncal in legal succession, because legal succession is
by operation of law.
CQ: Who are the legal heirs?

A: Those enumerated by the law i.e., legitimate ascendants, illegitimate parents,
legitimate children, illegitimate spouse, surviving spouse, brother, sister, nephew and
nieces, relatives within the 5th degree of consanguinity and the state.
CQ: As between the State and the 6th degree relative, who shall inherit the property?
A: The State.
CQ: Legitimate child and illegitimate child survives. In intestacy, the legitime of
legitimate child is ½ of the estate while the legitime of the illegitimate is ¼ of the estate,
who shall get the remaining ¼?
A: The illegitimate child. It is because the remaining ¼ is the free portion which
shall suffer the devises and legacies as well as donations.
CQ: Legitimate child and spouse survives the decedent. In intestacy, the legitime of
the legitimate child is ½ of the estate while that of the spouse is ¼. Who shall get the
remaining ¼?
A: The surviving spouse gets the ¼. In Santillon vs. Miranda the legitimate child
questioned the sharing as unfair, because his status was not improved whether testacy or
intestacy. The SC ruled that it is not unfair because it is what the law is saying. Besides,
the free portion of ¼ is the part that suffers any legacies, devises and donations.
ACCRETION
SQ: What is accretion?

A: “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.” (Art. 1015)
SQ: Give the reason for accretion.

A: It is based on the presumed will of the deceased that he prefers to give certain
properties to certain individuals, rather than to his legal heirs. Thus, accretion is
preferred to intestacy.
SQ: What are the requisites of accretion?

A: a) Unity of object (same inheritance, legacy or devise). b) plurality of subjects
(two or more persons are called to the same property pro indiviso) c) vacant portion due
to Repudiation, Predecease, Incapacity, If suspensive condition is not fulfilled and if a
particular heir cannot be identified.
SQ: Is there accretion in legal succession?

A: Yes. Article 1018 provides that in legal succession, the share of the person who
repudiates the inheritance always accrues to his co-heirs. Article 1018 applies to
incapacity, without prejudice to representation (Manresa). Article 1018 does not speak of
predecease, because here, there is no vacant portion; that is, the predecease heir never had
a chance to inherit.
SQ: When is accretion taking place among compulsory heirs?

A: Accretion among compulsory heirs takes place only when they are instituted to
the FREE portion. If it is the legitime that is repudiated, other compulsory heirs take the
share of the repudiating heir in their OWN RIGHT, not by accretion. (Art. 1021)
SQ: Does accretion takes place among devisees, legatees and usufructuaries?
A: Yes. Accretion also takes places among devisees, legatees and usufructuaries
under the same conditions established for heirs. (Article 1023)
SQ: Ryan, left to his nieces Renee, Kathia and Mimie all his money at PNB at the
time of his death. When Ryan died, he had P30 Million at PNB. Renee, however, died
before Ryan, leaving a child named Queenie. Who gets the P30 Million?
A: Kathia and Mimie get Renee’s share by accretion. Queenie does not inherit
because there is no representation among voluntary heirs.
SQ: Louie gave P10,000 deposited at PNB to friend Renee, and P10,000 deposited at
PBC to friend Dax. No substitute was appointed. Gina, the sister of Louie was not
given anything. If, Renee repudiates, who gets her share?
A: There is no accretion here because the shares are EARMARKED. So Gina, sister,
gets Renee’s share as a sole intestate heir.
DONATION
EQ: Are donations contracts?

A: Onerous donations are in the nature of a contract.
EQ: What are the different kinds of donation?

A: 1. Remuneratory – which is not a demandable debt
1. Pure or simple
2. Onerous donations – (actually contracts) – “I’ll donate to you this land,
provided that you’ll take care of me until I die.”
3. Conditional
EQ: What if (in the above example of onerous contract) not made in a public
instrument? Before the death of the donor, can the donee ask the donor to execute a
public instrument? Can the donee compel the donor to execute a public instrument?
A: The general rule on donation is that she cannot compel but since this is an
onerous donation, the rules on contracts govern.
EQ: If the donation contains a clause that the land cannot be sold within 100
years, is it valid?
A: The donation remain as valid although the condition is voided. In contract, the
presence of a void condition invalidates the contract. But in donation, the presence of
void condition does not invalidate the donation making only the condition as NOT
written.
EQ: What is the rule on donation of personal property donation?

A: On personal property amounting to more than P 5,000.00, the donation must be
in writing, but the acceptance need not be in writing.
EQ: A, donated to B sending the latter the written donation thru mail. B made a
separate document accepting the donation also thru mail. But before the donor could
receive the mail, the donor died. Has the donation perfected?
A: The donation is void. Same is true when the donor became insane. The donor
has to know the acceptance. However, a presumption exist that acceptance is
simultaneous to donation if made in the same instrument. (BAR p. 1, 34 and 323)
EQ: State the rules of acceptance in remuneratory donations.

A: Remuneratory in a sense that the donation is made in payment of services
rendered. If onerous, acceptance need not be known before the donor died, Article 390.
But if remuneratory, rules on acceptance shall be observed, the is, he knew before he died
or become insane.
EQ: Distinguish mortis causa donation from inter vivos donation. What is the main
criteria?
A: the main criteria is the test of revocability.
(BAR p. 35, 446 and 392)
EQ: When can donations be revoked? Reduced?

A: Article 750 – when the donor will not have enough property to support his
children.
Article 759 – in case of fraud of creditors
Article 760 – revoked when subsequent children be born
Article 769 – on ingratitude – one year prescriptive period, counted from the
time the donor have knowledge of the fact of ingratitude.
****AQ: Where the acceptance of the donation was made in a separate

instrument but not formally communicated to the donor, may the donation be
nonetheless considered complete, valid and subsisting?
A: NO. The donation following the Theory of Cognition (Art. 1319) is perfected
only upon the moment the donor knows of the acceptance by the donee. Furthermore, if
the acceptance is made in a separate instrument, the donor shall be notified in an
authentic form, and this step shall be noted in both instruments.
Acceptance of the donation by the donee is, therefore, indispensable. Its
absence makes the donation null and void. The deed of donation does not show any
indication that the petitioner donee accepted the gift. During the trial, he did not present
any instrument evidencing such acceptance despite the fact that private respondent
already raised this allegation in his supplemental pleading to which petitioner raised no
objection.
It is only after the CA had rendered its decision, when petitioner came before
this Court, that he submitted an affidavit dated August 28, 1998, manifesting that he
wholeheartedly accepted the lot given to him. This is too late, because arguments,
evidence, causes of action and matters not raised in the trial court may no longer be
raised on appeal. An granting arguendo, that such acceptance may still be admitted in
evidence on appeal, there is still need for proof that a formal notice of such acceptance
was received by the donor and noted in both the deed of donation and the separate
instrument embodying the acceptance. At the very least, this last legal requisite of
annotation in both instruments of donation and acceptance was not fulfilled by petitioner.
Acceptance of the donation by the donee is, therefore indispensable; its absence
makes the donation null and void.
True, the acceptance of a donation may be made at any time during the lifetime
of the donor. And granting arguendo that such acceptance may still be admitted in
evidence on appeal, there is still need for proof that a formal notice of such acceptance
was received by the donor and noted in both the deed of donation and the separate
instrument embodying the acceptance. At the very least, this last legal requisite of
annotation in both instruments of donation and acceptance was not fulfilled by the
petitioner. For this reason, the subject lot cannot be adjudicated to him. [the very
important case of Lagzo vs. Court of Appeals (1998)]
****AQ: Respondents donated a parcel of land in favor of the Bureau of Public

Schools (BPS) of the Municipality of Malangas, Zamboanga del Sur, with a condition
that said property should be “used exclusively and forever for school purposes only.”
This donation was accepted by the BPS District Supervisor through an Affidavit of
Acceptance and/or Confirmation of Donation.
Through a fund raising campaign spearheaded by the PTA of Brgy. Kauswagan,
a school building was constructed on the donated land. However, the Bagong Lipunan
School building that was supposed to be allocated for the donated parcel of land could
not be released since the government required that it be built upon a one-hectare land. To
remedy this predicament, the District Supervisor transacted for the exchange of the one
half hectare old school site of Kauswagan Elementary School to a new suitable location
which would fit the specifications of the government. Pursuant to this, he and Teresita
Palma entered into a Deed of Exchange whereby the donated lot was exchanged with the
bigger lot owned by the latter. Consequently, the Bagong Lipunan school building was
constructed on the new site and the school building previously erected on the donated lot
was dismantled and transferred to the new location.
Respondents filed a complaint before the RTC but it was dismissed for lack of
merit. The trial court held that the exchange was proper since it was still for school
purposes such as the expansion and improvement of school facilities within the
community. It declared that the Deed of Exchange was but a continuity of the desired
purpose of the donation. The CA reversed the above decision that there was an invalid
acceptance of the donation.
Issues: 1) Is the above donation onerous?
1. Was there an invalid acceptance of donation?
2. Did the donee, in exchanging the donated lot with a bigger lot, violate
the condition in the donation that the lot be used for school purposes
only?
A: 1) YES. Donations, according to purpose or cause, may be categorized as

(a) pure or simple; (b) remuneratory or compensatory (c) conditional or modal; and (d)
onerous. Of all the foregoing classifications, donations of the onerous type are the most
distinct. This is because, unlike the other forms of donation, the validity of and the rights
and obligations of the parties involved in an onerous donation is completely governed not
by the law on donations but by the law on contracts. An onerous donation is that which
imposes upon the donee a reciprocal obligation or, to be more precise, this is the kind of
donation made for a valuable consideration, the cost of which is equal to or more than the
thing donated.
The donation involved in the present controversy is one which is onerous since
there is a burden imposed upon the donee to build a school on the donated property.
2) NO. On the contrary there was a valid acceptance of the donation.
Articles 745 and 749 of the CC provide:
Art. 745 – the donee must accept the donation personally, or through an authorized person with a special
power for the purpose, or with a general and sufficient power; otherwise the donation shall be void.
Art. 749 – in order that the donation of an immovable may be laid, it must be in a public document,
specifying therein the property donated and the value of the charge which the donee must satisfy.
The acceptance may be made in the same deed of donation or in a separate public document, but it shall
not take effect unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be notified thereof in authentic form,
and this step shall be noted in both instruments.
In the case at bar, acceptance was made through an Affidavit of Acceptance
and/or Confirmation of Donation. Also, a school building was immediately constructed
after the donation was executed. Respondents has knowledge of the existence of the
school building put up on the donated lot through the efforts of the PTA of Brgy.
Kauswagan. It was when the school building was being dismantled and transferred to the
new site and when Vice-Mayor Wilfredo Palma was constructing a house on the donated
property that respondents came to know of the Deed of Exchange. The actual knowledge
by respondents of the construction and existence of the school building fulfilled the legal
requirement that the acceptance of the donation by the donee be communicated to the
donor.
3) NO. Without the slightest doubt, the condition for the donation was not
only in any way violated when the lot donated was exchanged with another one. The
purpose for the donation remains the same, which is for the establishment of a school.
The exclusivity of the purpose was not altered or affected. In fact, the exchange of the lot
for a much bigger one was in furtherance and enhancement of the purpose of the
donation. The acquisition of the bigger lot paved the way for the release of the funds for
the construction of the Bagong Lipunan school building which could not be
accommodated by the limited area of the donated lot. (the very important case of
Republic vs. Leon Silim, April 2, 2001, Kapunan, J.)
TABLE OF TABLE OF
LEGITIMES INTESTATE SHARES
Ill. Children 1/3 Ill. Children 1/2

Surviving spouse 1/3 Surviving spouse 1/2
Legitimate Parents Legitimate Parents
1/2 1/2
Legitimate parents 1/2 Legitimate parents 1/2
Legitimate parents 1/2 Legitimate parents 1/2
Ill. Parents 1/4 Ill. Parents 1/2
Surviving Spouse 1/2
Brothers, Sisters, Nephews and 1/2
Nieces
Ill. Child alone 1/2 Ill. Child alone ALL
Legitimate Parents alone
1/2 Legitimate Parents alone ALL
Ill. Parents alone 1/2 Ill. Parents alone ALL
Surviving spouse alone
½ 1/3 ½ Surviving spouse alone ALL
Legitimate child alone
1/2 Legitimate child alone ALL
Legitimate child 1/2 Legitimate child 1/2
2 or more legitimate ½ 2 or more legitimate children Consider spouse as leg. Child (per
capita)
children same 1 child Surviving spouse
surviving spouse
Legitimate child ½ Leg. Child
Ill. Children ½ of each
Illeg. Child. Proportion of 10-5 provided legitimes
Padilla formula of leg. Children not impaired.
leg. child
LC NCC
SC SS
½ 4/5 2/5
1/4

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Silliman University College of Law – Estolloso Notes in Civil Law

Bar Ops 2002 – Series 21 - den Succession and Donation 1 of 46

CQ: What are the elements of succession?

CQ: Who are the parties in succession?

CQ: Is a juridical entity included in Art. 775 as a decedent?

CQ: How do we call the decedent?

CQ: Who is an heir? How does one become an heir?

CQ: May the cats be heirs, say 69 cats?

CQ: Why is it important to know the distinction of an instituted heir to that of

CQ: I give ½ of all my jewelry to Renee, is she an instituted heir or a devisee?

CQ: Suppose ½ of estate?

CQ: What is the object of succession?

CQ: What are included in the inheritance of a decedent?

CQ: Are all property rights and obligations included?

CQ: How do we know that these are not extinguished?

CQ: How about a decedent’s corpse, is it an estate?

CQ: When does the decedent die?

CQ: In presumptive death, when is a person considered dead, date of disappearance

CQ: What are the MODES of succession?

CQ: May succession be by contract?

CQ: Is there any exception?

CQ: Who is a legal heir or intestate heir?

EQ: Does the probate court resolve issues of intrinsic validity?

CQ: What issues may be raised in probate?

CQ: What is the effect of probate?

A probate proceeding is a proceeding in rem. In Mercado vs. Santos, a duly

EQ: When may the question of intrinsic validity be entertained?

EQ: What are the characteristics of a will?

CQ: What is testamentary succession?

EQ: What is a nuncupative will?

CQ: How do you know that the document is a will?

CQ: “I command that none of my property will go to my eldest son, Miguel, he

CQ: When is a will executed?

CQ: How do we know that a person is of sound mind?

CQ: What law shall govern the validity of the disposition?

CQ: What are the formalities of a notarial will?

The meaning of the requirement of “FULL SIGNATURE” is that in

CQ: Suppose he signed it not in a customary manner, will it automatically invalidate

CQ: What if it is a pen name? Thumbmark?

CQ: Where must the testator sign?

CQ: Pwede ba I-type ng delegate?

CQ: Who may be a delegate?

CQ: May one of the witnesses be a delegate?

CQ: If the testator asked a delegate, must the 3 witnesses see?

CQ: What is meant by “attest;” “subscribe?”

CQ: Where will the witnesses sign? (specific requirement)

CQ: Is there an order of signing?

CQ: What is meant by “all pages numbered correlatively in letters?”

CQ: What is the purpose of the attestation clause?

CQ: Must the attestation clause be signed by the witnesses?

CQ: May the attestation clause be executed at a different date?

CQ: Is an attestation clause embodied in the body of the will valid?

A: No need, it may be interpreted to them.

CQ: How about the defect is a total omission of a fact?

CQ: Must the notarial will be dated?

CQ: What must be acknowledged with the notary public?

CQ: What is a certificate of acknowledgment? When should it be prepared?

CQ: What is the so-called special requirement?

CQ: What if the date is “Feb. ’61.” Is this a sufficient date?

CQ: What signature is sufficient?

CQ: May a lost holographic will probated?

CQ: Can incorporation of a document by reference be allowed in a holographic

CQ: If he re-sign it, is the will republished?