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The validity of a will as to its form depends upon signature unless there is
the law in force at the time it is made (Art. 795, proof that it is the usual
NCC). signature of the testator in all
documents (Jurisprudence).
Probate of a will – the judicial scrutiny of a will, b. Date – must have a month,
knowing whether such will is valid or not. day, and year. It can be
written in any form.
Executor – the person to whom the testator Case: A testator did not
entrusted the distribution of his properties. put the day on the will,
only the month and year
Property acquired after the making of a will shall was written. The
only pass thereby, as if the testator had Supreme Court held that
possessed it at the time of making the will (Art. there was already
793, NCC). substantial compliance
with the law.
The will must state whether full ownership or only Note: The policy of the law is to prefer testacy
a part thereof will go to the devisee or legatee over intestacy. The interpretation that must be
(Art. 794, NCC). given to a will is one that will give effect to it, not
defeat it.
Qualifications to make a will or to be a testator:
1. At least 18 years old 2. Notarial – must be in writing; handwritten
2. He must be of sound mind by the testator himself or another person,
Note: All persons are presumed or typewritten. May be done partly
to be of sound mind, and whoever handwritten and partly typewritten as
alleges otherwise has the burden of long as it is not oral.
proving it. However, if a person is publicly a. Signature – may be signed
known to be insane a month or less by himself or if in some
before making his will, the person who circumstances he cannot
maintains the validity of the will must sign the will, he can tell
prove that the testator made it during a another person to write his
lucid interval (Art. 800, NCC). name but it must be in his
All persons have their own presence and his express
temporary insanity, e.g. when he is direction. The person asked
angry. to sign must write the
Note: A supervening incapacity does not testator’s name in his own
invalidate an effective will, nor is the will of an style of handwriting, not
incapable validated by the supervening capacity copying the testator’s
(Art. 801, NCC). handwriting or signature.
Ex: Testator’s hands were
A married woman may make a will without the amputated. “Maria types
consent of her husband. She may dispose her everything that the testator
separate property as well as her share in the asked her to do, testator will
conjugal property (Art. 802 & 803, NCC). ask Maria to write the
testator’s name in the same
Forms of a will: way she writes any names.
1. Holographic – entirely handwritten by the Maria must not copy the
testator, signed by his usual signature, signature of the testator. If
and dated by his own hand. Maria will write the testator’s
Scenario: A person born without name while he is not in the
hands, but used his foot to write a will is room with her, such act
considered to have made a holographic violates the requirement of
will. the law. Maria should write
a. Signature – must be the the name of the testator in
personalized or usual his presence, where the
signature of the testator. A testator can see it.”
thumbprint is not a valid
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Note: A notarial will must have an attestation b. Blind – ask someone to type or write his
clause signed by at least 3 witnesses. will on his behalf; the will shall be read to
Note: A notarial will must be acknowledged by a him at least twice; once, by one of the
notary public. It must contain an subscribing witnesses, and again, by the
acknowledgement like a contract. The notary notary public before whom the will is
public is not required to keep a copy of the will. acknowledged.
Note: There is no provision in the NCC for a
Note: A will is only valid or void. testator who is both blind and deaf-mute.
Attestation Clause – a declaration signed by the Language of the will – The will must be in the
witnesses that the testator published to them the language or dialect known to the testator. It
preceding documents as his will. cannot be in the language not known to the
testator even if it has been interpreted to the
Contents of the attestation clause: testator.
a. Number of pages numbered Note: The testator may not make a testamentary
correlatively in letters disposition in such a manner that another person
Ex: First Page, Page One... has to determine whether or not it is operative
If written like these: Page A, (Art. 787, NCC) If the will admits to different
Page B, Page Too, Page Tree, Page interpretations, the interpretation in which it is
I, Page II – Supreme Court held it is made to be operative shall be preferred (Art. 788,
substantial compliance with the law. NCC).
b. Testator’s signature at the bottom of All clarifications intended for the will must be in
the will and on the left margin of all writing in order to be effective (See Art. 789,
other pages, in the presence of the NCC).
witnesses.
c. Signatures of the witnesses in the The invalidity of one disposition does not result in
presence of the testator and of one the invalidity of the other dispositions, unless it is
another. presumed that the testator would not have made
d. If the testator is unable to sign – the the other dispositions if such invalid disposition
name of the person who signed on had not been made (Art. 792, NCC).
his behalf must be stated therein and
must state that it was signed in the In holographic wills, the dispositions of the
testator’s express direction and in his testator written below his signature must be dated
presence. E.g. that the testator being and signed by him in order to make them valid as
unable to sign directed Maria Cruz to testamentary dispositions (Art. 812, NCC). When
write his name as his signature….. a number of dispositions appearing in a
holographic will are signed without being dated,
Witnesses to a will – must at least be three. If and the last disposition has a signature and a
there are only 2 witnesses, the will becomes date, such date validates the dispositions
invalid. preceding it, whatever be the time of prior
Qualifications: dispositions (Art. 813, NCC). If there is no date,
1. At least 18 years old the disposition is invalid.
2. Must be of sound mind
3. Must not be blind In case of any insertion, cancellation, erasure, or
4. Must know how to read and write alteration in the holographic will, the testator must
5. Must be a resident of the Philippines sign the said correction.
6. He must not have been convicted of a
crime involving falsification of Language of the attestation clause - An
documents, perjury, or false testimony. attestation clause can be in any language. If the
attestation clause is in the language not known to
If the testator is: the witnesses, it shall be interpreted to them.
a. Deaf, or deaf-mute - he must personally
read the will if able to do so; otherwise, In a probate proceeding, only the extrinsic validity
he shall designate two persons to read of a will is checked because a probate court has
and communicate to him the contents of limited jurisdiction.
the will through sign language.
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A probate may be applied by the testator himself. such person so attesting shall be admitted as a
If such was made, no publication is needed for a witness as if such devise or legacy had not been
notice of hearing. made or given (Art. 823, NCC).
Ex: Testator asked Maria to be a witness, but she
In the probate of a holographic will, it shall be does not want to. The testator then wrote in his
necessary that at least one witness who knows will that he will give Maria and the 2 other
the handwriting and signature of the testator witnesses sum amount of money for them to
explicitly declare that the will and the signature agree to be witnesses. However, such
are in the handwriting of the testator. If the will is dispositions are invalid because they are deemed
contested, at least three of such witnesses shall incapacitated to inherit unless there will be
be required. another witness who will attest without any
In the absence of any competent witness referred incentive. Only one additional witness is needed
to in the preceding paragraph, and if the court for them to be capacitated to succeed.
deem it necessary, expert testimony may be Note: The incapacity extends to the spouse,
resorted to (Art. 811, NCC). The expert must be parent, or child of such person.
at the initiative of the Court and not of any other
person. Note: A notary public cannot be made a witness
unless there are more than 3 witnesses.
When a Filipino is in a foreign country, he is
authorized to make a will in any of the forms
established by the law of the country in which he
may be. Such will may be probated in the September 22, 2017
Philippines (Art. 815, NCC). The rule on
nationality will apply or lex loci celebrationis. There is no limit as to how many wills a person
can make. Even if the will states “My last will and
The will of an alien who is abroad produces effect testament”.
in the Philippines if made with the formalities
prescribed by the law of his country, the law of the Codicil – later will or subsequent will. It is a
country in which he resides, or the Philippine law supplement or addition to a will, made after the
(See Art. 816, NCC). execution of a will and annexed to be taken as a
part thereof, by which disposition made in the
A will made in the Philippines by a citizen or original will is explained, added to, or altered.
subject of another country, which is executed in In order for a codicil to be effective, it must be
accordance with the law of the country of which executed as in the case of a will.
he is a citizen or subject, and which might be
proved and allowed by the law of his own country, The title of the subsequent will does not matter as
shall have the same effect as if executed long as the will is in accordance with the forms
according to the laws of the Philippines (Art. 817, prescribed by law. Ex: The first will may be
NCC). The doctrine of processual presumption holographic, and the second one can be notarial.
will apply which states that the laws of other
countries are the same of our laws, whoever Requirement of Codicil:
alleges otherwise has the burden of proving it. 1. The previous document (will) must be
described in details in order to identify
Joint will – two or more persons make a will which document is to be referred to in the
jointly. codicil.
Note: A joint will is absolutely prohibited in the 2. Every page must be signed by the
Philippines. testator. (most important requirement)
3. The document referred to must be in
If a person attests the execution of a will, to whom existence.
or to whose spouse, or parent, or child, a devise
or legacy is given by such will, such devise or Revocation of a will – when a testator changes
legacy shall, so far only as concerns such person, those stated in the will.
or spouse, or parent, or child of such person, or Ex: Testator made a will which states that
any one claiming under such person or spouse, his house will go to Jose, but he later on changes
or parent, or child, be void, unless there are three his mind and wants to give his house to Maria.
other competent witnesses to such will. However,
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Note: Both extrinsic and intrinsic validity of a will should be his will at the time of affixing
are under the jurisdiction of the Regional Trial his signature thereto.
Court. However, they must be filed in different
cases. Institution of heir is an act by virtue of which a
testator designates in his will the person or
Who may file for probate: persons who are to succeed him in his property
1. The testator himself and transmissible rights and obligations.
2. By anyone in possession of the will after Note: The person must be described if
the death of the testator within the period not named.
of 30 days
Scenario:
Advantages when the testator himself filed for A person writes down all his properties in
probate: a piece of paper and signs the said paper with
1. The proceeding is simplified date. However, he was not able to put the names
2. There is no need for the publication of the of those who will inherit the said properties. – The
notice of hearing paper is considered a valid holographic will.
3. The defect in the will can still be However, the will is useless because it does not
corrected institute heirs. The rule on intestacy will apply.
Note: There is a difference between the
Note: A will may still be revoked even after validity of a will and the use of a will. A will is valid
probate. even if it has no institution of heirs.
If the testator makes a testament but not all
Probate of holographic will by the testator: properties are disposed, rules on intestacy will
1. Petitioner must present at least 1 person apply to the residual property.
familiar with the handwriting and If the heir predeceases the testator, or he is
signature of the testator incapacitated to succeed, or he renounces his
2. If there is contention: 3 persons are inheritance; absence of any provision for
required to testify for the genuineness of substitution, the rule on intestacy shall apply.
the handwriting and signature of the
testator One who has no compulsory heirs may dispose
Ex: The petitioner immediately presented expert by will of all his estate or any part of it in favor of
witness, such is not allowed by the court. It is only any person having capacity to succeed.
by the initiative of the court when an expert One who has compulsory heirs may dispose of
witness’s opinion is deemed admissible. his estate provided he does not contravene the
GR: Hearsay Evidence is inadmissible provisions of this Code with regard to the legitime
XPN: Expert’s opinion of said heirs (Art. 842, NCC).
XPN: You can result to expert’s testimony Compulsory heirs – entitled to a legitime,
immediately if everyone who knows your which is the minimum inheritance of a compulsory
handwriting are already dead. heir. Only compulsory heirs are entitled to a
legitime.
Grounds on disallowing a will: a. Legitimate children and
1. If the formalities required by law have not descendants, with respect to their
been complied with; legitimate parents and ascendants;
2. If the testator was insane, or otherwise b. In default of the foregoing, legitimate
mentally incapable of making a will, at the parents and ascendants, with
time of its execution; respect to their legitimate children
3. If it was executed through force or under and descendants;
duress, or the influence of fear, or c. The widow or widower;
threats; d. Acknowledged natural children, and
4. If it was procured by undue and improper natural children by legal fiction;
pressure and influence, on the part of the e. Other illegitimate children
beneficiary or of some other person; Note: Legitime are preserved by law for your
5. If the signature of the testator was compulsory heirs. They cannot be given to
procured by fraud; anyone else. If the testator wishes to bequeath
6. If the testator acted by mistake or did not other persons than his compulsory heirs, only
intend that the instrument he signed
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properties in the disposable free portion must be to the inheritance. However, if the testator states
allocated to them. “if Jose Cruz did not save my life, he will not get
If the testator wishes to bequeath more to his the inheritance” then Jose Cruz will not get
compulsory heir, other than that of his legitime, anything.
the additional inheritance shall be taken from the
disposable free portion. If it was the intention of the testator that the
instituted heirs should become sole heirs to the
The testator shall designate the heir by his name whole estate, or the whole free portion, as the
and surname, and when there are two persons case may be, and each of them has been
having the same names, the said heir must be instituted to an aliquot part of the inheritance and
described by the testator (See Art. 843, NCC). their aliquot parts together do not cover the whole
inheritance, or the whole free portion, each part
If two or more persons have the same name and shall be increased proportionally (Art. 852, NCC).
by description, the heir still cannot be Since it is the intention of the testator to bequeath
ascertained, nobody will inherit. all his properties to those instituted heirs, then
their inheritance will increase proportionately.
Every disposition in favor of an unknown person Ex: A – Php 3,000,000
shall be void, unless by some event or B – Php 2,000,000
circumstance his identity becomes certain. C – Php 1,000,000
However, a disposition in favor of a definite class Total Estate = Php 7,000,000
or group of persons shall be valid (Art. 845, NCC). Excess of Php 1,000,000 will be
Ex: Testator bequeaths sum of money to proportioned to A, B, and C.
the lepers of the Philippine Red Cross, it is the Therefore: 3:2:1; A - Php 500,000 (3/6 x
Philippine Red Cross who will decide on which Php1,000,000); B – Php 333,333 (2/6 x
among the lepers will inherit the said sum of Php1,000,000); C – Php 166,666 (1/6 x
money. Php1,000,000)
If the sharing of inheritance is not stated, the If each of the instituted heirs has been given an
sharing will be divided equally (See Art. 846, aliquot part of the inheritance, and the parts
NCC). Even if the heirs instituted are composed together exceed the whole inheritance, or the
of full blood siblings and half-blood siblings (See whole free portion, as the case may be, each part
Art. 848, NCC). shall be reduced proportionally (Art. 853, NCC).
Note: The rule wherein the half-brother or half-
sister gets only one-half of the inheritance of the Preterition - omission of one, some, or all of the
full blood sibling only applies when there is no compulsory heirs in the direct line.
will. The effect of preterition shall annul the institution
of heirs.
When the testator calls to the succession a Legacies and Devisees shall be valid as long as
person and his children they are all deemed to they do not diminish the legitime.
have been instituted simultaneously and not If the omitted compulsory heirs dies before the
successively (Art. 849, NCC). Those instituted testator, the institution will be effectual so long as
collectively are deemed instituted individually it does not prejudice the right of representation
(See Art. 847, NCC). (Art. 854, NCC).
Ex: “I leave Php 10,000,000 Jose Cruz
and his 3 children.” – The Php 10,000,000 should The share of a child or descendant omitted in a
be divided to the 4 of them. will must first be taken from the part of the estate
not disposed of by the will, if any; if that is not
The statement of a false cause for the institution sufficient, so much as may be necessary must be
of an heir shall be considered as not written, taken proportionally from the shares of the other
unless it appears from the will that the testator compulsory heirs (Art. 855, NCC). The free
would not have made such institution if he had portion will be used first, if it is not sufficient, then
known the falsity of such cause (Art. 850, NCC). the legitime of the compulsory heirs will be taken
Ex: “I leave to Jose Cruz Php1,000,000 proportionately.
because he saved me during the flood of typhoon
Marie.” – Even though it was not Jose Cruz who A voluntary heir who dies before the testator
saved the testator’s life, he would still be entitled transmits nothing to his heirs.
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A compulsory heir who dies before the testator, a for the second heir, who shall not be greater than
person incapacitated to succeed, and one who one degree from the first heir.
renounces the inheritance, shall transmit no right For a fideicommissary to happen, both heirs must
to his own heirs except in cases expressly survive the testator.
provided for in this Code (Art. 856, NCC). The right of the second heir shall pass to his heirs;
- Right of representation will take place; which means that if the second heir inherits from
applicable to descendants only. There is the testator, his heirs can now inherit from him the
no right of representation in the said estate.
ascending line. Ex: I leave my house and lot to Pedro
Cruz, but he must preserve the house for his son,
Pedrito.
September 29, 2017 Note: Parent and Child is the one degree
relationship.
The law allows substitution and institution of heirs Note: The second heir inherits from the testator,
to avoid intestacy, because the law prefers not from the first heir. The first heir only acts like
testacy over intestacy. a trustee.
Scenario:
Substitution of heirs can be done by the a. First heir dies before the testator - no
testament itself or it may be done in another will, substitution happens (simple
called the codicil. succession)
b. Second heir dies before the testator
Substitution is the appointment of another heir so - no succession take place; the
that he may enter into the inheritance in default of property now becomes the intestate
the heir originally instituted (Art. 857, NCC). estate of the testator; legal heirs will
Ex: I leave to my friend my car. If for any succeed
reason he cannot receive the inheritance, the car Q: If second heir is not yet born –
will go to Mario Cruz. allowed; as long as it will have
juridical personality.
Substitution happens when the heir dies ahead of Note: A voluntary heir who dies before
the testator, or when by reason of incapacity the the testator passes no inheritance to his
heir cannot succeed, or the heir renounces his own heirs.
inheritance. Note: If you will analyze the law, there are only 2
classes of substitution; simple and
Kinds of substitution: fideicommissary. Brief or compendious, and
1. Simple or Common reciprocal are considered as simple substitution.
2. Brief or Compendious
3. Reciprocal If heirs instituted in unequal shares should be
4. Fideicommissary reciprocally substituted, the substitute shall
acquire the share of the heir who dies,
Simple or Common – when the testator after renounces, or is incapacitated, unless it clearly
instituting an heir institutes his substitute. appears that the intention of the testator was
otherwise. If there are more than one substitute,
Brief Substitution – the testator institutes an heir they shall have the same share in the substitution
but he provides for two or more substitutes. as in the institution (Art. 861, NCC).
Ex: A – 50%, B- 30%, and C 20%. If A
Compendious – testator names 2 heirs but dies, B and C will get A’s inheritance according to
names only one substitute. their proportionate share. Therefore, B will get an
additional 30% and C will get an additional 20%.
Reciprocal – testator institutes 2 or more heirs; if
one of them cannot receive inherit, the others will The substitute shall be subject to the same
take over the inheritance. charges and conditions imposed upon the
instituted heir, unless and testator has expressly
Fideicommissary – the testator institutes a first provided the contrary, or the charges or
heir, but he creates an express obligation to the conditions are personally applicable only to the
first heir to preserve and transmit the inheritance heir instituted (Art. 862, NCC). If there is a burden
imposed upon the instituted heir, the substituted
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shall also be bound with the said condition unless GR: The legitime of the compulsory heir can
stated otherwise by the testator, or the condition never be impaired.
imposed is strictly personal to the instituted heir. XPN: The legitime of the illegitimate children. If
the remaining free portion is not enough to satisfy
GR: A legitime can never be burdened. Such fully the legitime of the illegitimate child, then the
burden shall be deemed as not imposed. diminution is allowed.
XPN: The testator prohibits partition for not more Note: If the legitime of compulsory heirs
than 20 years. If partition is more than 20 years, are not fully satisfied, the heir may ask for the full
the prohibition will only be up to 20 years, the satisfaction of his legitime. Therefore, the
remaining years will be void. legacies and devises may be diminished.
Note: If the compulsory heir inherits from
the disposable free portion, apart from his If an inheritance is subject to a burden, the heir
legitime. A condition may now be imposed on the must accept both the inheritance and the burden.
legacy or devise to be inherited.
Burdens that may be imposed to legatee or
Fideicommissary will take effect on the following devisees:
grounds: 1. Conditions not contrary to law, morals,
1. The testator uses exactly the words public policy… if contrary, it is deemed as
fideicommissary substitution; or not imposed
2. The testator creates an obligation to the Note: Impossible conditions are also
fiduciary to preserve and transmit/deliver deemed as not imposed.
the property to the second heir. Ex: I leave to Pedro Cruz my
house and lot, provided he will marry
A testator cannot prohibit the alienation of the Maria Santos 2 years from the probate of
property, because he is no longer the owner of the will. – Pedro will only get the
the property when he dies. inheritance when he marries Maria.
However, if Maria already have a
A testator cannot impose secret instructions husband and the two years already
because he is no longer the owner of the property lapsed, Pedro will still get the inheritance.
when succession takes place. The conditions imposed are considered
impossible condition.
A provision whereby the testator leaves to a
person the whole or part of the inheritance, and Executor – person who implements the will; may
to another the usufruct, shall be valid. If he gives be appointed by the testator or by the court.
the usufruct to various persons, not
simultaneously, but successively, the provisions Administrator – those who manage the property
of article 863 shall apply (Article 869, NCC). before being distributed
Ex: Pedro is given a land by testator for
usufructuary, but it is Pedrito who will inherit the An absolute condition not to contract a first or
land. subsequent marriage shall be considered as not
Pedro – usufructuary until his written unless such condition has been imposed
death; the fruits and interests of the on the widow or widower by the deceased
property will go to him. spouse, or by the latter's ascendants or
Pedrito – has full ownership descendants.
Note: If Article 863 is to be applied, the movement Nevertheless, the right of usufruct, or an
is only from the first heir to the second heir. It allowance or some personal prestation may be
cannot go beyond. devised or bequeathed to any person for the time
during which he or she should remain unmarried
Pretirition – when a compulsory heir in the direct or in widowhood (Art. 874, NCC).
line was not given any inheritance. Pretirition Ex: I leave to my wife our house and lot,
annuls the institution of heirs, but legacies and provided she will never re-marry. – The
devisees will subsist so long as they are not prohibition is valid. If she violates the prohibition,
inofficious. the wife can still inherit her legitime but not the
legacy or devise.
Legitime – part of the net estate of the testator
which is reserved by law for the compulsory heirs.
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Note: The absolute prohibition to contract Ex: I give my wife Php 10,000,000,
marriage may also be imposed by an ascendant provided she will never re-marry again. – For the
or descendant. wife to get the inheritance, she must put up a
Ex: The testator is the mother in law of security. In case she violates the condition, she
the heir; or the son from the previous marriage. – must return the inheritance together with its fruits
If the legatee or devisee violates such condition, and interests.
she cannot get anything because she does not
have any legitime to the said testator If the heir be instituted under a suspensive
Absolute prohibition: Prohibition of marriage to a condition or term, the estate shall be placed
girlfriend. However, if prohibition for marriage is under administration until the condition is fulfilled,
only for a limited time, such prohibition is allowed. or until it becomes certain that it cannot be
fulfilled, or until the arrival of the term.
Any disposition made upon the condition that the The same shall be done if the heir does not give
heir shall make some provision in his will in favor the security required in the preceding article (Art.
of the testator or of any other person shall be void 880, NCC). When a person dies, the inheritance
(Article 875, NCC). Only the disposition is void, cannot immediately be given to the heirs because
not the whole will. some conditions may still need to be fulfilled. The
Ex: I will give something to Pedro, executor still needs to probate the will. If there is
provided he will give me something to inherit in no will, the administrator will take over the
his testament. properties until conditions are fulfilled.
Any purely potestative condition imposed upon Legitime is that part of the testator's property
an heir must be fulfilled by him as soon as he which he cannot dispose of because the law has
learns of the testator's death. reserved it for certain heirs who are, therefore,
This rule shall not apply when the condition, called compulsory heirs (Art. 886, NCC). It is not
already complied with, cannot be fulfilled again a definite property nor amount. It is a part of the
(Art. 876, NCC). estate reserved by law for the compulsory heirs.
Ex: The condition is to pass the bar exam
within 5 years from the death of testator. – The The following are compulsory heirs:
heir now needs to do it within the prescribed 1. Legitimate children and descendants,
period. However, if such condition was already with respect to their legitimate parents
fulfilled prior to when he learned of the condition, and ascendants;
the condition is now deemed fulfilled. 2. In default of the foregoing, legitimate
parents and ascendants, with respect to
A disposition with a suspensive term does not their legitimate children and
prevent the instituted heir from acquiring his descendants;
rights and transmitting them to his heirs even 3. The widow or widower;
before the arrival of the term (Art. 878, NCC). 4. Acknowledged natural children, and
Ex: Pedro will get his inheritance on natural children by legal fiction;
Christmas 2020. – Pedro will have to wait until 5. Other illegitimate children referred to in
Christmas of 2020 before he gets his article 287.
inheritance. But the inheritance already pertains Compulsory heirs mentioned in Nos. 3, 4, and 5
to him, however, the possession is not yet with are not excluded by those in Nos. 1 and 2; neither
him. do they exclude one another.
If Pedro dies before Christmas of 2020, In all cases of illegitimate children, their filiation
the inheritance will be given to Pedro’s heirs must be duly proved.
when the term arrives. The father or mother of illegitimate children of the
three classes mentioned, shall inherit from them
If the potestative condition imposed upon the heir in the manner and to the extent established by
is negative, or consists in not doing or not giving this Code (Art. 887, NCC).
something, he shall comply by giving a security Note: Legitimate ascendants only becomes
that he will not do or give that which has been compulsory heirs if the is no legitimate
prohibited by the testator, and that in case of descendant.
contravention he will return whatever he may Note: Natural children by legal fiction does not
have received, together with its fruits and need recognition because they are married,
interests (Art. 879, NCC). however, the marriage is void. – Family Code:
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The marriage is void, but the children born out of Note: After giving the ½ to the
the said marriage are considered legitimate. descendants or ascendants, the
remaining half is called the free
Computation for Net Estate: *those in parenthesis portion. This is where the legitime of
are to be deducted* the spouse and the illegitimate child
a. Single: will come from. And what is left of
All Assets that free portion, will be called
(All Liabilities) disposable free portion, which will be
--------------------------- given to anyone the testator desires.
Net Assets c. No legitimate child or children –
(Estate Tax) Parents will inherit – ½ of the estate
------------------ for the parents to be divided equally
NET ESTATE to both of them; ¼ to the spouse; ¼
disposable free portion. If only parent
b. Married – all assets and liabilities are is alive, then the whole ½ will go to
common or conjugal the surviving parent.
Total Assets d. Art. 890 - No legitimate children, no
(Total Liabilities) parents, but has grandparents – the
Net Assets ½ will be given to the grandparents
Divided by 2 to be divided equally between the
½ share husband & ½ share wife paternal line and maternal line – the
maternal line of grandparents will get
½ share of deceased ¼ to be divided to the grandparents
(Estate Tax) alive equally, the remaining ¼ will be
given to the grandparents from the
Net Estate
paternal line, and divide by them
equally; ¼ of the estate will go to the
c. Married – with conjugal/common assets
spouse.
and liabilities; and with exclusive assets
Note: Include the nearer and exclude the further.
and liabilities
e. Husband and wife with 1 legitimate
Total Assets-conjugal
child and the husband has 1
(Total Liabilities)-conjugal
illegitimate child – ½ goes to the
Net assets from conjugal legitimate child; ¼ goes to the wife;
Divided by 2 ¼ goes to the illegitimate child, which
½ share husband & ½ share wife is ½ of the legitime of the legitimate
child.
½ share of deceased In case of 2 illegitimate child – ½
Exclusive Assets goes to the legitimate child; ¼ will go
Total Assets to the surviving spouse; ¼ will go to
(Exclusive Liabilities) the 2 illegitimate children, which will
Net Assets have them 1/8 each.
(Estate Tax) Note: GR: Legitime may never be
Net Estate diminished. XPN: Legitime of the
illegitimate child.
Legitime Scenarios: f. Art. 899 – Husband and wife with no
a. Art. 888 - Husband & Wife; 2 legitimate child but the testator still
legitimate children – ½ of net estate have parents and 3 illegitimate child
goes to the children, each will get – The ½ will go to the parents to be
1/4. If there are 3 children, each child divided equally, each getting ¼; the
will get 1/6. spouse will get 1/8; and the 3
b. Husband and Wife with 1 legitimate illegitimate child will get the ¼ of the
child – ½ of the estate will go to the estate to be divided by them equally,
child; Only 1 child - the ¼ will go to thus each having a share of 1/12;
the wife; the remaining ¼ is the disposable portion of 1/8.
disposable free portion g. Art. 894 – husband and wife with no
legitimate child and legitimate
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ascendants, but with 3 illegitimate When W dies, applying Art. 891, the
children – 1/3 goes to the wife; 1/3 house will now go to M or B.
will go to the 3 illegitimate children to
be divided equally among them, 3 persons involve in reserve troncal:
each getting 1/9; the remaining 1/3 1. Praepositus or Prepositus or Propositus
will be the disposable free portion. – X – the descendant
h. Husband and wife only – ½ will go to 2. Reservista or Reservor – W – the
the surviving spouse; the remaining ascendant who reserves the property
½ free disposable portion. 3. Reservatarios or Reservees – M or B –
i. Testator has no spouse, but has 1 the one who will receive the reserved
child – ½ will go to the child, whether property.
legitimate or illegitimate; the
remaining ½ will be the disposable Note: If in the scenario, X gives the house to W
free portion. by reason of a will, then there is no more reserve
j. Art. 900 – Marriage in articulo mortis, troncal.
testator died within 3 months –
surviving spouse gets only 1/3. Note: No reserve troncal will commence if there
XPN: The spouse cohabited as is no more relative within the 3rd degree from the
husband and wife for more than five propositus or there are no more reservatarios.
years – the surviving spouse will get
½. If the property that was given to the propositus
was not in a gratuitous title, e.g. sale, there is no
Note: Art. 895 does not apply anymore because reserve troncal.
of The Family Code.
The reservista inherits ownership but subject to a
resolutory condition.
October 6, 2017
Example of reserve troncal from a brother:
Reserva Troncal – The ascendant who inherits B H W
from his descendant any property which the latter
may have acquired by gratuitous title from A D C
another ascendant, or a brother or sister, is Upon B’s death, H marries W.
obliged to reserve such property as he may have A donated a property to C
acquired by operation of law for the benefit of C dies, B is also dead.
relatives who are within the third degree and who The property will go to W for reserve
belong to the line from which said property came troncal.
(Art. 891, NCC). When the W dies, the property will go to
Purpose: to prevent the property A or D, or to any relatives within the 3 rd
acquired in one family line to move in another degree in the same line.
family line because of intestacy. Note: The property will go to the nearer degree
first. Direct relatives first before collateral.
Family lines: Ex: Between a grandparent and a
1. Paternal – from the father’s side brother, the property will go first to the
2. Maternal – from the mother’s side grandparent.
P M T N Persons who have legitime but are compulsory
heirs: Illegitimate Parents - The legitime of the
B H W A B C parents who have an illegitimate child, when such
child leaves neither legitimate descendants, nor a
surviving spouse, nor illegitimate children, is one-
X half of the hereditary estate of such illegitimate
P donated his house to X. child. If only legitimate or illegitimate children are
X dies, H is also dead left, the parents are not entitled to any legitime
The house will now go to W. whatsoever. If only the widow or widower
survives with parents of the illegitimate child, the
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legitime of the parents is one-fourth of the Collation – add back the previous donations
hereditary estate of the child, and that of the which the compulsory heir received from the
surviving spouse also one-fourth of the estate decedent.
(Art. 903, NCC). Ex: The Prodigal Son – the son asked for
his inheritance in advance and signs a waiver of
Scenarios: future inheritance.
a. Illegitimate Parents only – The parents Upon the father’s death, the prodigal son
will inherit ½, to be divide by them is still asking for his legitime. (Note: The waiver
equally, thus ¼ each; the remaining ½ that the prodigal son signed before is not a valid
will be the disposable free portion waiver.)
b. Illegitimate Parents and Spouse – ¼ will Compute the net estate and the value of
go to the spouse; ¼ will go to the the donation given to arrive at the final net estate
illegitimate parents, to be divided equally to be disposed of.
among them; the remaining ½ will be the
disposable free portion. Scenario: Husband and wife with 2 children;
husband donated a house worth Php 1,000,000
Instances stated by law wherein the legitime may to one of his children.
be diminished or the compulsory heir may be Net Estate:
deprived of his legitime: Php4,000,000 – the estate left
a. Illegitimate child – diminution Php1,000,000 – the value of the donation
b. Valid disinheritance – deprivation -------------------
Php 5,000,000
Note: The only burden that may be imposed upon Legitimes:
the legitime is prohibit partition of no longer than 1st child – Php1,250,000
20 years. 2nd child – Php1,250,000
However, since the 1st child
Disinheritance – an act permitted by law, wherein already got Php1,000,000, he will now only
a person deprives his compulsory heirs of his receive Php 250,000.
legitime for any of the causes provided by law. Note: For purpose of collation, the value of the
donation at the time it was made will still be the
How to do a valid disinheritance: value that is to be added.
1. Valid will
2. In the valid will, the testator expressly Note: Whatever was donated as inter vivos will be
disinherits his compulsory heirs. There is charged to his legitime. If there was donation inter
no implied disinheritance. vivos, even if the compulsory heir was not entitled
Note: The testator must mention the to anything in the will, there is no preterition.
ground for disinheritance and it must be
valid. If the donation inter vivos given was more than
the legitime of the one who received:
In case the disinherited heir contests the Ex: X dies, leaving his spouse W, his
disinheritance, the heirs interested to maintain children S and D with nothing. Prior to his death,
the disinheritance must prove the existence of the he donated Php 1,000,000 to S.
disinheritance. Net Estate:
If there is lacking of one requirement, there will be Php1,000,000 – the value of the donation
a defective disinheritance. Therefore, the heir made to S
who was defectively disinherited will now receive --------------------
his legitime. Php 1,000,000 – total net estate
Legitime:
Every renunciation or compromise as regards a S: Php250,000
future legitime between the person owing it and D: Php250,000
his compulsory heirs is void, and the latter may W: Php250,000
claim the same upon the death of the former; but S will have to give back the excess
they must bring to collation whatever they may Php750,000 that he inherited in order to give the
have received by virtue of the renunciation or legitime of the other compulsory heir.
compromise (Art. 905, NCC). Any compulsory heir to whom the testator has left
by any title less than the legitime belonging to him
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may demand that the same be fully satisfied (Art. will then be distributed appropriately according to
906, NCC). If the donation given to him is still their share.
insufficient, he is entitled to get the remaining
value of his legitime. The testator may devise and bequeath the free
portion as he may deem fit (Art. 914, NCC). This
Testamentary dispositions that impair or diminish is about the disposable free portion which may be
the legitime of the compulsory heirs shall be given to anyone. Except to those who are
reduced on petition of the same, insofar as they disqualified by law in making donation inter vivos.
may be inofficious or excessive (Art. 907, NCC).
In cases of legacies or devisees. If the legitime is Disinheritance can be effected only through a will
not enough, the legacies and devisees will be wherein the legal cause therefor shall be
diminished. specified (Art. 916, NCC). There must be a will,
Note: The legacies and devisees may be taken and in that will the cause must be expressly
only from the disposable free portion. stated in order to be valid. The cause of
disinheritance must be one of those specified by
Donations given to children shall be charged to law.
their legitime.
Donations made to strangers shall be charged to Disinheritance without a specification of the
that part of the estate of which the testator could cause, or for a cause the truth of which, if
have disposed by his last will. contradicted, is not proved, or which is not one of
Insofar as they may be inofficious or may exceed those set forth in this Code, shall annul the
the disposable portion, they shall be reduced institution of heirs insofar as it may prejudice the
according to the rules established by this Code person disinherited; but the devises and legacies
(Art. 909, NCC). and other testamentary dispositions shall be valid
to such extent as will not impair the legitime (Art.
Donations which an illegitimate child may have 918, NCC). If the disinheritance turns out to be
received during the lifetime of his father or defective, the compulsory heir will now receive
mother, shall be charged to his legitime. his legitime. The legacies and devisees will be
Should they exceed the portion that can be freely reduced to give the legitime of the compulsory
disposed of, they shall be reduced in the manner heir.
prescribed by this Code (Art. 910, NCC).
The following shall be sufficient causes for the
If the devise subject to reduction should consist disinheritance of children and descendants,
of real property, which cannot be conveniently legitimate as well as illegitimate:
divided, it shall go to the devisee if the reduction 1. When a child or descendant has been
does not absorb one-half of its value; and in a found guilty of an attempt against the life
contrary case, to the compulsory heirs; but the of the testator, his or her spouse,
former and the latter shall reimburse each other descendants, or ascendants;
in cash for what respectively belongs to them. 2. When a child or descendant has accused
The devisee who is entitled to a legitime may the testator of a crime for which the law
retain the entire property, provided its value does prescribes imprisonment for six years or
not exceed that of the disposable portion and of more, if the accusation has been found
the share pertaining to him as legitime (Art. 912, groundless;
NCC). Devise – real property. 3. When a child or descendant has been
Ex: The devise that the devisee inherited convicted of adultery or concubinage with
is 50sqm. Therefore, compulsory heir should get the spouse of the testator (the second
25sqm. Since it is impractical to divide the land, spouse of the testator if he has a child
apply Art. 912. – Land given to the devisee was from the first marriage);
reduced to ½, the land will now go to the 4. When a child or descendant by fraud,
compulsory heir. If the land was not reduced to violence, intimidation, or undue influence
½, the land will remain to the devisee. Thus, causes the testator to make a will or to
whatever the value of the part of the land that change one already made;
should be given to the heir should be paid in cash 5. A refusal without justifiable cause to
by the one who gets the land. support the parent or ascendant who
Note: If the heirs or devisees will not exercise the disinherits such child or descendant;
right, then the property will be sold. The proceed
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6. Maltreatment of the testator by word or 4. When the spouse has given cause for
deed, by the child or descendant; legal separation;
7. When a child or descendant leads a 5. When the spouse has given grounds for
dishonorable or disgraceful life; the loss of parental authority;
8. Conviction of a crime which carries with it 6. Unjustifiable refusal to support the
the penalty of civil interdiction. children or the other spouse.
Note: The grounds mentioned above are
exclusive. Disinheritance will not be effective if Common causes of disinheritance:
the ground is not mentioned above. 1. Attempt on life
2. Unjust refusal to provide for support
The following shall be sufficient causes for the 3. Compelling the testator to make his will if
disinheritance of parents or ascendants, whether he hasn’t made one
legitimate or illegitimate: 4. Compelling the testator to change his will
1. When the parents have abandoned their if he already made one
children or induced their daughters to live 5. Accusing the testator of a crime that is
a corrupt or immoral life, or attempted punishable of 6 years imprisonment or
against their virtue; more, which turns out to be false.
2. When the parent or ascendant has been
convicted of an attempt against the life of A subsequent reconciliation between the offender
the testator, his or her spouse, and the offended person deprives the latter of the
descendants, or ascendants; right to disinherit, and renders ineffectual any
3. When the parent or ascendant has disinheritance that may have been made (Art.
accused the testator of a crime for which 922, NCC). The reconciliation must be mutual,
the law prescribes imprisonment for six there must be acceptance. It cannot be pardon
years or more, if the accusation has been only. If only unilateral, the person is still
found to be false; disinherited.
4. When the parent or ascendant has been
convicted of adultery or concubinage with The children and descendants of the person
the spouse of the testator; disinherited shall take his or her place and shall
5. When the parent or ascendant by fraud, preserve the rights of compulsory heirs with
violence, intimidation, or undue influence respect to the legitime; but the disinherited parent
causes the testator to make a will or to shall not have the usufruct or administration of the
change one already made; property which constitutes the legitime (Art. 923,
6. The loss of parental authority for causes NCC). This is right of representation.
specified in this Code; Representation takes place in the following:
7. The refusal to support the children or 1. Heir predeceases the testator
descendants without justifiable cause; 2. The heir is incapacitated to succeed
8. An attempt by one of the parents against 3. Disinheritance
the life of the other, unless there has Ex: Husband and Wife with 3 children, A, B
been a reconciliation between them. and C. A has a wife, R, they also have 2
children S and T.
The following shall be sufficient causes for If the husband dies, and A is already dead, S
disinheriting a spouse: and T will inherit A’s right to the estate
1. When the spouse has been convicted of because of right of representation, together
an attempt against the life of the testator, with B and C.
his or her descendants, or ascendants; Note: S and T will only get the part of A. Thus,
2. When the spouse has accused the they are inheriting because of right of
testator of a crime for which the law representation. On the other hand, B and C
prescribes imprisonment of six years or will inherit in their own right.
more, and the accusation has been found
to be false;
3. When the spouse by fraud, violence, November 16, 2017
intimidation, or undue influence cause
the testator to make a will or to change Legacy – inheritance of personal property. The
one already made; person to receive a legacy is called the legatee.
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Devise – inheritance of real property. The person of credit back or ask from the executor an
to receive a devise is called a devisee. acquittance.
Note: Legatees and devisees are Note: The condonation requires the
voluntary heirs. It will only take place if there is a acceptance of the debtor-heir.
valid will.
A generic legacy of release or remission of debts
GR: A testator may bequeath or devise only comprises those existing at the time of the
something that belongs to him. execution of the will, but not subsequent ones
(Art.937, NCC).
Legacy or Devise is a specific property – If the Ex: The testator on his will condoned the
testator dies and the thing that was inherited to credit of Maria. However, after the testator made
you was gone out of existence, the heir receives his will, Maria borrowed money from the testator
nothing. If the thing was sold by the testator prior again. – Upon the testator’s death, the condoned
to his death, such act is considered as a credit are only those existing at the time of the
revocation (implied) of the legacy. making of the will. Credits arising after the making
of the will are not condoned because the testator
Legacy is a generic thing: has no right to such credits. The testator can only
1. The estate does not own the said condone those which he has existing rights on.
property – the executor will acquire the
said property and give it to the heir. The Note: In legacy of credit and condonation, if the
quality of the thing to be given will testator sues the debtor, the heir will get nothing.
depend on the capacity of the estate to It is implied revocation of the legacy.
give. The legatee cannot ask for The legatee for the legacy of credit cannot
something superior, and the executor substitute the testator as plaintiff unless such
cannot give something inferior. The substitution was made by the testator when he
reason for this is because there might be was still alive.
other legacies and devisees which needs
to be given and the order of preference When the testator charges one of the heirs with a
according to law should be followed. legacy or devise, he alone shall be bound.
Should he not charge anyone in particular, all
Devise of an indeterminate thing: shall be liable in the same proportion in which
1. The estate does not own the said they may inherit (Art. 926, NCC). All heirs
property – the devisee will get nothing. assigned by the testator must contribute
Ex: The testator bequeathed to according to their proportionate heir in the estate.
the devisee a parcel of land in Manila. At the If nothing was stated as to the sharing, the
time of the making of the will, the testator contribution will be assumed by the heirs equally.
owns many parcel of land in Manila. Ex: Testator asked the 3 heirs to feed the
However, before he died he sold all his land poor with a portion of their inheritance. If the heirs
in Manila and acquired a parcel of land in got equal inheritance, the contribution they will
Antipolo. The devisee in this case will receive give is equally assumed by all. However, if the
nothing. inheritance was divided to the 3 heirs in a ratio of
3:2:1. The contribution of such heirs will be
Legacy of a credit – Only the part which remains according to the proportion they inherited.
to be unpaid at the time of the testator’s death is
the amount which the legatee will receive. If the If two or more heirs take possession of the estate,
debtor already paid everything before the they shall be solidarily liable for the loss or
testator’s death, the legatee will receive nothing. destruction of a thing devised or bequeathed,
The heir has the right to ask for the instrument of even though only one of them should have been
credit so that he can collect from the debtor. negligent (Art. 927, NCC).
Legacy in the form of condonation of an The heir who is bound to deliver the legacy or
obligation. – Only the part which was still unpaid devise shall be liable in case of eviction, if the
by the debtor-heir at the time of testator’s death thing is indeterminate and is indicated only by its
will be condoned. The debtor cannot ask for kind (Art. 928, NCC). If the thing delivered to the
refund. The debtor-heir can ask for the instrument legatee or devisee is not the property of the
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testator, such thing will be replaced by other encumbrance. However, if the testator states that
indeterminate things that are part of the estate. Pedro should pay it, it is Pedro who will pay the
mortgage.
If the testator, heir, or legatee owns only a part of, Note: The legatee or devisee should get
or an interest in the thing bequeathed, the legacy the property not subject to any claim.
or devise shall be understood limited to such part If the property inherited is subject to a burden, the
or interest, unless the testator expressly declares heir must accept both the burden and the
that he gives the thing in its entirety (Art. 929, inheritance. The testator cannot just accept the
NCC).Rules on co-ownership will apply. inheritance and refuse the burden.
The legacy or devise of a thing belonging to A legacy or devise made to a creditor shall not be
another person is void, if the testator erroneously applied to his credit, unless the testator so
believed that the thing pertained to him. But if the expressly declares.
thing bequeathed, though not belonging to the In the latter case, the creditor shall have the right
testator when he made the will, afterwards to collect the excess, if any, of the credit or of the
becomes his, by whatever title, the disposition legacy or devise (Art. 938, NCC).
shall take effect (Art. 930, NCC). When the thing Ex: “I leave to Pedro Php 1,000,000.” The
bequeathed was not part of the testator’s estate, testator has an existing debt to Pedro of Php
such disposition is void. It will only become valid 1,000,000. – Pedro will then get Php 2,000,000
if such property belongs to the testator. from the estate. However, if the testator states
that the 1,000,000 is for the payment of his debt.
A testator may state on his will an obligation to Pedro will only get Php 1,000,000.
acquire a property not belonging to him be
bequeathed to a legatee or devisee. The executor If the testator orders the payment of what he
will be the one to acquire the said property. If the believes he owes but does not in fact owe, the
owner refuses to sell the property or demands for disposition shall be considered as not written. If
an excessive price, the estate will then give the as regards a specified debt more than the amount
legatee or devisee the just value of the property thereof is ordered paid, the excess is not due,
(See Art. 931, NCC). unless a contrary intention appears.
The foregoing provisions are without prejudice to
If the testator orders that a thing belonging to the fulfillment of natural obligations (Art. 939,
another be acquired in order that it be given to a NCC).
legatee or devisee, the heir upon whom the
obligation is imposed or the estate must acquire In alternative legacies or devises, the choice is
it and give the same to the legatee or devisee; but presumed to be left to the heir upon whom the
if the owner of the thing refuses to alienate the obligation to give the legacy or devise may be
same, or demands an excessive price therefor, imposed, or the executor or administrator of the
the heir or the estate shall only be obliged to give estate if no particular heir is so obliged.
the just value of the thing (Art. 932, NCC). Since If the heir, legatee or devisee, who may have
the legatee or devisee already owns the property, been given the choice, dies before making it, this
the disposition is considered ineffective. right shall pass to the respective heirs.
Once made, the choice is irrevocable.
If the testator should bequeath or devise In the alternative legacies or devises, except as
something pledged or mortgaged to secure a herein provided, the provisions of this Code
recoverable debt before the execution of the will, regulating obligations of the same kind shall be
the estate is obliged to pay the debt, unless the observed, save such modifications as may
contrary intention appears. appear from the intention expressed by the
The same rule applies when the thing is pledged testator (Art. 940, NCC). Alternative legacies – 2
or mortgaged after the execution of the will. or more things are bequeathed to the legatee or
Any other charge, perpetual or temporary, with devisee. The choice shall be given to the heir.
which the thing bequeathed is burdened, passes However, if the heir who has the right of choice
with it to the legatee or devisee (Art. 934, NCC). dies, it is heirs who will make the choice.
Ex: I leave to Pedro a particular parcel of Note: The choice should be communicated to the
land. – Before dying, the testator mortgaged the legatee or devisee to be effective, and such
property. When the testator dies, the estate shall becomes a simple obligation.
pay the mortgage to free the property from
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A legacy for education lasts until the legatee is of However, if the thing is indeterminate, the testator
age, or beyond the age of majority in order that must expressly state that fruits and interests will
the legatee may finish some professional, pertain to the legatee or devisee. It is only the
vocational or general course, provided he thing inherited who shall automatically pertain to
pursues his course diligently. the legatee or devisee.
A legacy for support lasts during the lifetime of the From the moment of the testator's death, the thing
legatee, if the testator has not otherwise bequeathed shall be at the risk of the legatee or
provided. devisee, who shall, therefore, bear its loss or
If the testator has not fixed the amount of such deterioration, and shall be benefited by its
legacies, it shall be fixed in accordance with the increase or improvement, without prejudice to the
social standing and the circumstances of the responsibility of the executor or administrator
legatee and the value of the estate. (Art. 948, NCC).
If the testator or during his lifetime used to give
the legatee a certain sum of money or other Order of Preference - If the estate should not be
things by way of support, the same amount shall sufficient to cover all the legacies or devises, their
be deemed bequeathed, unless it be markedly payment shall be made in the following order:
disproportionate to the value of the estate (Art. 1. Remuneratory legacies or devises – one
944, NCC). Support in this article does not given in consideration of a past service
include education. which does not have a claim on the
Ex: Testator’s will: Support Maria’s education – estate; Ex: someone you have “utang na
Maria will get money for education from the estate loob” – Testator left Php 5,000,000 for
until the end of her studies. However, she must the remuneratory legatee
pursue her studies diligently. Net estate = Php 5,000,001
Legacy for support is lifetime. On the other hand, The Php 5,000,000 will be given
legacy for education is not lifetime. to the remuneratory legatee. The
If there is a provision as to how much will be given remaining Php 1 will be shared to the
for support or education but the estate cannot other heirs.
give the said amount, the estate will provide for it 2. Legacies or devises declared by the
according to its ability to provide. It may be less testator to be preferential;
than what was stated in the will. 3. Legacies for support;
4. Legacies for education;
If a periodical pension, or a certain annual, 5. Legacies or devises of a specific,
monthly, or weekly amount is bequeathed, the determinate thing which forms a part of
legatee may petition the court for the first the estate;
installment upon the death of the testator, and for 6. All others pro rata.
the following ones which shall be due at the
beginning of each period; such payment shall not The thing bequeathed shall be delivered with all
be returned, even though the legatee should die its accessories and accessories and in the
before the expiration of the period which has condition in which it may be upon the death of the
commenced (Art. 945, NCC). Same as provided testator (Art. 951, NCC).
in the family code, you can never get back what
was given. The heir, charged with a legacy or devise, or the
executor or administrator of the estate, must
If the thing bequeathed should be subject to a deliver the very thing bequeathed if he is able to
usufruct, the legatee or devisee shall respect do so and cannot discharge this obligation by
such right until it is legally extinguished (Art. 946, paying its value.
NCC). If property subject of usufruct is Legacies of money must be paid in cash, even
consumable, replace the thing with the same kind though the heir or the estate may not have any.
and quality. The expenses necessary for the delivery of the
thing bequeathed shall be for the account of the
Legacies and Devises which are determinate are heir or the estate, but without prejudice to the
transmitted to the heirs from the moment of death legitime (Art. 952, NCC). The heir who is charged
of the testator, including its fruits. Except for the to deliver cannot replace the thing by cash. If the
income which was already due and unpaid before estate has no more money, the administrator
the testator’s death. (Similar as to the earlier must sell properties which are not bequeathed to
provision) others to get cash for the legacies of money.
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The legatee or devisee cannot take possession Right of Accretion: Ex: A, B and C inherits
of the thing bequeathed upon his own authority, Php300,000. However, C is incapacitated to
but shall request its delivery and possession of inherit. Therefore, the Php100,000 for C will be
the heir charged with the legacy or devise, or of divided between A and B, Php50,000 each.
the executor or administrator of the estate should Right of accretion only applies if there are several
he be authorized by the court to deliver it (Art. heirs who will receive from a common
953, NCC). It is only the rights of ownership that inheritance.
are transferred upon death. The heir must await
the settlement of liabilities first because the thing The legacy or devise shall be without effect:
bequeathed to him may still be used to pay up the 1. If the testator transforms the thing
creditors of the estate. bequeathed in such a manner that it does
Note: Creditors are preferred over a legitime. not retain either the form or the
denomination it had;
Legacy or Devise with a burden: 2. If the testator by any title or for any cause
1. Accept both inheritance and burden; or alienates the thing bequeathed or any
2. Reject both inheritance and burden. part thereof, it being understood that in
Note: The legatee or devisee cannot the latter case the legacy or devise shall
accept the inheritance then reject the be without effect only with respect to the
burden. part thus alienated. If after the alienation
If the legatee or devisee dies before having the thing should again belong to the
accepted the legacy or devise, the choice now to testator, even if it be by reason of nullity
accept or reject will be given to the legatee or of the contract, the legacy or devise shall
devisee’s heirs. not thereafter be valid, unless the
Note: If the legatee or devisee renounces the reacquisition shall have been effected by
property, his heirs will inherit nothing because he virtue of the exercise of the right of
is a voluntary heir. The property now will form part repurchase;
of the intestate estate of the decedent. 3. If the thing bequeathed is totally lost
during the lifetime of the testator, or after
The legatee or devisee of two legacies or his death without the heir's fault.
devises, one of which is onerous, cannot Nevertheless, the person obliged to pay
renounce the onerous one and accept the other. the legacy or devise shall be liable for
If both are onerous or gratuitous, he shall be free eviction if the thing bequeathed should
to accept or renounce both, or to renounce either. not have been determinate as to its kind.
But if the testator intended that the two legacies The things now sold or transformed or given to
or devises should be inseparable from each others does not form part of the estate anymore.
other, the legatee or devisee must either accept Therefore, the legatee or devisee inherits
or renounce both. nothing.
Any compulsory heir who is at the same time a Note: Testator can only give what he owns.
legatee or devisee may waive the inheritance and
accept the legacy or devise, or renounce the A mistake as to the name of the thing bequeathed
latter and accept the former, or waive or accept or devised, is of no consequence, if it is possible
both (Art. 955, NCC). to identify the thing which the testator intended to
Ex: A legitimate child is given a legacy besides bequeath or devise (Art. 958, NCC).
the legitime. The child can accept the legacy only Ex: In the testator’s will: I leave to A my Mercedes
and reject the legitime, or accept the legitime and Benz with plate number AAA 111. However, the
reject the legacy, or accept both, or reject both. Mercedes Benz is not with that plate number, but
it is the Toyota Vios which has the said plate
If the legatee or devisee cannot or is unwilling to number. Therefore, the legatee will inherit the
accept the legacy or devise, or if the legacy or Toyota Vios because the plate number better
devise for any reason should become ineffective, describes the property to be inherited.
it shall be merged into the mass of the estate,
except in cases of substitution and of the right of A disposition made in general terms in favor of
accretion (Art. 956, NCC). If there is substitution, the testator's relatives shall be understood to be
the property will go to the substitute. If there is no in favor of those nearest in degree (Art. 959,
substitute, the property will be part of the intestate NCC).
estate.
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2. 976 – If C repudiates his inheritance The grandchildren and other descendants shall
to B, he may still inherit from A. inherit by right of representation, and if any one
of them should have died, leaving several heirs,
The representative is called to the succession by the portion pertaining to him shall be divided
the law and not by the person represented. The among the latter in equal portions (Art. 982,
representative does not succeed the person NCC). If a grandchildren passes away with heirs,
represented but the one whom the person the inheritance will be divided per stirpes. Right
represented would have succeeded (Art. 971, of representation takes place. But if all
NCC). grandchildren are still alive, they will inherit
equally.
The right of representation takes place in the Note: If all are of same degree, they will
direct descending line, but never in the inherit equally.
ascending.
In the collateral line, it takes place only in favor of The inheritance of an illegitimate child is one half
the children of brothers or sisters, whether they of the legitimate child.
be of the full or half blood (Art. 972, NCC).
According to the adoption law, the ties between
In order that representation may take place, it is the adopted child and biological parents are
necessary that the representative himself be severed, therefore, they can only inherit by
capable of succeeding the decedent (Art. 973, reason of a will.
NCC).
In default of legitimate children and descendants
When children of one or more brothers or sisters of the deceased, his parents and ascendants
of the deceased survive, they shall inherit from shall inherit from him, to the exclusion of collateral
the latter by representation, if they survive with relatives (Art. 985, NCC). Note: If there is
their uncles or aunts. But if they alone survive, someone still alive from the direct line, whether
they shall inherit in equal portions (Art. 975, legitimate or illegitimate, the collateral relative will
NCC). If the nephews and nieces survived with not inherit.
living aunts, they will only get the inheritance
subject to the right of the person they are In default of the father and mother, the
inheriting. However, if they are all nephews and ascendants nearest in degree shall inherit.
nieces, the division now will be per capita, which Should there be more than one of equal degree
means they are to receive equally, because they belonging to the same line they shall divide the
are all in the same degree inheriting in their own inheritance per capita; should they be of different
right. lines but of equal degree, one-half shall go to the
paternal and the other half to the maternal
Succession pertains, in the first place, to the ascendants. In each line the division shall be
descending direct line (Art. 978, NCC). made per capita (Art. 987, NCC). It is the same
as the rule on legitime.
Legitimate children and their descendants
succeed the parents and other ascendants, In the absence of legitimate descendants or
without distinction as to sex or age, and even if ascendants, the illegitimate children shall
they should come from different marriages. succeed to the entire estate of the deceased (Art.
An adopted child succeeds to the property of the 988, NCC).
adopting parents in the same manner as a
legitimate child (Art. 979, NCC). If the adopted If, together with illegitimate children, there should
child wants his biological brothers and sisters to survive descendants of another illegitimate child
inherit, he must make a will. who is dead, the former shall succeed in their own
right and the latter by right of representation (Art.
Should children of the deceased and 989, NCC).
descendants of other children who are dead,
survive, the former shall inherit in their own right, The hereditary rights granted by the two
and the latter by right of representation (Art. 981, preceding articles to illegitimate children shall be
NCC). transmitted upon their death to their descendants,
who shall inherit by right of representation from
their deceased grandparent (Art. 990, NCC).
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Illegitimate descendants also enjoys the right of The inheritance of the spouse is the same as the
representation. inheritance of a legitimate child. Even if there is
no more children alive, but only grandchild, the
An illegitimate child has no right to inherit ab share will still be the same as a legitimate child.
intestato from the legitimate children and relatives
of his father or mother; nor shall such children or When the widow or widower survives with
relatives inherit in the same manner from the legitimate parents or ascendants, the surviving
illegitimate child (Art. 992, NCC). This is the spouse shall be entitled to one-half of the estate,
barrier between legitimate and illegitimate. For and the legitimate parents or ascendants to the
the illegitimate child to inherit, there must be a other half (Art. 997, NCC).
will; and vice versa.
Ex: If a widow or widower survives with illegitimate
A children, such widow or widower shall be entitled
to one-half of the inheritance, and the illegitimate
B C (illeg) children or their descendants, whether legitimate
or illegitimate, to the other half (Art. 998, NCC).
D E(ill) F G(illeg)
C, E and G are illegitimate. If B and C If legitimate ascendants, the surviving spouse,
predecease A, E cannot represent his father, B. and illegitimate children are left, the ascendants
However, both F and G may represent their shall be entitled to one-half of the inheritance, and
father, C. the other half shall be divided between the
surviving spouse and the illegitimate children so
If an illegitimate child should die without issue, that such widow or widower shall have one-fourth
either legitimate or illegitimate, his father or of the estate, and the illegitimate children the
mother shall succeed to his entire estate; and if other fourth (Art. 1000, NCC). The same as the
the child's filiation is duly proved as to both legitime.
parents, who are both living, they shall inherit
from him share and share alike (Art. 993, NCC). In case of a legal separation, if the surviving
Illegitimate parent will inherit. spouse gave cause for the separation, he or she
shall not have any of the rights granted in the
In default of the father or mother, an illegitimate preceding articles (Art. 1002, NCC). The
child shall be succeeded by his or her surviving offender, will be disqualified to inherit to the
spouse who shall be entitled to the entire estate. offednded party, but the offended party may still
If the widow or widower should survive with inherit from the offender.
brothers and sisters, nephews and nieces, she or
he shall inherit one-half of the estate, and the The collateral relatives will only inherit the entire
latter the other half (Art. 994, NCC). estate if there are no descendants or ascendants,
In the absence of legitimate descendants and illegitimate children or a surviving spouse.
ascendants, and illegitimate children and their Note: The spouse is always the concurring heir to
descendants, whether legitimate or illegitimate, all; ascendants, descendants or collateral
the surviving spouse shall inherit the entire relative, except to the state.
estate, without prejudice to the rights of brothers
and sisters, nephews and nieces (Art. 995, NCC). Should the only survivors be brothers and sisters
Should brothers and sisters or their children of the full blood, they shall inherit in equal shares
survive with the widow or widower, the latter shall (Art. 1004, NCC).
be entitled to one-half of the inheritance and the
brothers and sisters or their children to the other Should brothers and sisters survive together with
half (Art. 1001, NCC). Right of representation nephews and nieces, who are the children of the
may take place. descendant's brothers and sisters of the full
Ex: Testator has 3 siblings and spouse. Give the blood, the former shall inherit per capita, and the
legitime of the spouse first which is ½ of the latter per stirpes (Art. 1005, NCC). The nephews
estate. Then the remaining half will be divided to and nieces inherits per stirpes, because they are
the siblings and the spouse; spouse getting ¼; only inheriting by right of representation.
siblings will divide the remaining ¼ to themselves.
Should brother and sisters of the full blood
survive together with brothers and sisters of the
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