8/19/2018

SUCCESSION
BAR REVIEW LECTURE
• mode of acquisition of ownership
WILLS AND SUCCESSION
• property, rights, obligations transmitted
• through death
ATTY. RONEY JONE P. GANDEZA
• by will or by operation of law
2

QUESTION: WHAT ARE THE MODES OF

ACQUISITION OF OWNERSHIP?
Which of the following is not a mode of
DONATION
acquisition of ownership?
PRESCRIPTION
a. prescription INTELLECTUAL CREATION
b. donation SUCCESSION
c. accession TRADITION
d. law OCCUPATION
LAW (Art. 712, CC)
3 4

QUESTION:
What is meant by “law” as a mode of
acquiring ownership?
Cite at least three examples.
5 6
ANSWER:
When the Civil code speaks of “law” as a
distinct mode of acquiring ownership, it
refers to those instances where the law,
independently of the other modes of
acquiring ownership, AUTOMATICALLY
and DIRECTLY vests the ownership of the
thing in a certain individual once the
prescribed conditions are present or
complied with.

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EXAMPLES:
Hidden treasure which a stranger discovers Fruits naturally falling from a tree upon
by chance on another’s property. Here, one- adjacent land. Here, the ownership of the
half of the treasure belongs to the stranger, fruits is vested automatically in the owner
while the other half belongs by operation of of the adjacent land. (Art. 681, CC)
law to the owner of the land. (Art. 438, CC)
Abandoned beds, when a river or stream Acquisition of property in a state of co-
suddenly changes its course to traverse ownership if marriage is governed by the
private lands. The former owners of the new absolute community regime.
bed shall be the owners of the abandoned
bed in proportion to the area lost by each.
(Art. 58, PD 1067) 7 8

WHY IS THERE A NEED TO DISTINGUISH

BETWEEN DONATION INTER
VIVOS AND DONATION MORTIS CAUSA? EFFECTIVITY OF DONATION
The distinctions are important to determine -

 Effectivity of donation Donation inter vivos takes effect during

 Transfer of ownership the lifetime of the donor.
 Revocability of donation
 Predecease of donee Donation mortis causa takes effect upon
 Formalities required by law the death of the donor.

9 10

TRANSFER OF OWNERSHIP DEATH OF DONEE

In inter vivos, ownership is transferred to Inter vivos is valid even if donor survives the
the donee before the death of the donor. donee.
In mortis causa, ownership is transferred
only upon the death of donor. Mortis causa is void if donor survives the
donee.

11 12

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REVOCABILITY OF DONATION
Inter vivos is essentially irrevocable.
Mortis causa is always revocable during the
lifetime of the donor.
13
PROBLEM:
X donated in a public instrument a parcel
of land to Y, who accepted it in the same
document. It is there declared that the
donation shall take effect immediately,
with the donee having the right to take
possession of the land and receive its
fruits but not to dispose of the land while
X is alive, as well as for ten years
following his death.
ANSWER:
Yes, the suit will prosper because the
donation did not comply with the
formalities of a will. In this instance, the fact
that the donor did not intend to transfer
ownership or possession of the donated
property to the donee until the donor’s
death, would result in a donation mortis
causa and in this kind of disposition, the
formalities of a will should be complied
with, otherwise, the donation is void.
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FORMALITIES
Inter vivos must comply with the formalities
for donations under Arts. 748 and 749, Civil
Code.
Mortis causa must comply with the
formalities for notarial and holographic
wills.
14
Moreover, X also reserved in the same deed
his right to sell the property should he
decide to dispose of it at any time – a right
which he did not exercise at all.
After his death, X’s heirs brought an action
to recover the property, alleging that the
donation was void because it did not comply
with the formalities of a will.
Will the suit prosper?
16
The donation mortis causa in this case
which is embodied only in a public
instrument without the formalities of a
will could not have transferred ownership
of the disputed property to Y.
18
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TRANSMISSION OF PROPERTY
RIGHTS AND OBLIGATIONS
All obligations are transmissible, except
purely personal obligations.
Heir’s liability to pay is co-extensive with
the value of his inheritance.
19
ANSWER:
Despite the substitution, the children are
not liable.
The remedy of the plaintiff, the creditor, is
to proceed against the estate of the
deceased debtor.
21
DEATH OF THE DECEDENT
The rights to the succession are
transmitted from the moment of death
of the decedent. (Art. 777, CC)
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PROBLEM:
D was the defendant in a civil case. During
the pendency of the case, he died, and his
children were substituted as defendants.
If judgment is rendered against the
defendants, can the children be held
personally liable with their own individual
properties?
20
PROBLEM:
A father sold a parcel of land to a buyer, but
had not yet delivered the parcel by the time
he died. Are the heirs required to make the
delivery?
ANSWER:
Yes, because the heirs also inherit the
obligations of the deceased which are not
extinguished by death.
22
PRIOR TO A PERSON’S DEATH
The heirs merely have an inchoate right
to his property.
AFTER DEATH OF A PERSON
The heirs own the property, subject to the
decedent’s liabilities.
They may dispose of the property, even if
the property is still under administration.
4

PROBLEM:
T died with a will survived by his legitimate
children: A, B and C.
Upon T’s death, A, the eldest son, sold his
entire share to his friend, F.
Is the sale valid?
ANSWER:
The sale is valid because the rights of A to
the inheritance became vested upon T’s
death.
PRESUMED DEATH
ORDINARY ABSENCE
If the absentee disappears under normal
conditions, there being no danger of death,
he is presumed dead for the opening of his
succession at the end of TEN YEARS.
If he disappeared at age 75, he is presumed
dead at the end of FIVE YEARS.
PRESUMPTION OF DEATH DUE
TO EXTRAORDINARY ABSENCE
A person on board a missing vessel or a
missing airplane, who has not been heard of
for FOUR YEARS since the loss of the vessel
or airplane.
 A person in the Armed Forces who has taken
part in war, and has been missing for FOUR
YEARS.
 A person who has been in danger of death
under other circumstances and his existence
has not been known for FOUR YEARS.
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QUESTION:
Is actual death the only trigger that opens
the estate of a person to succession?
ANSWER:
Yes, subject to two exceptions:
a) presumed death of a person.
b) judicial dissolution of marriage.
26
EXTRAORDINARY ABSENCE
This is absence coupled with great
probability of death.
An absence of FOUR YEARS is sufficient for
a person to be presumed dead.
QUESTION:
If a person disappears with great probability
of death, when should he be presumed
dead?
ANSWER:
The person is presumed to have died at the
time of the disappearance (or at the time of
the calamity, not at the end of four years.
The presumption of death will arise that
death had occurred four years before.
30
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NOTE:
While succession really took place four PROBLEM:
years before or on the day of the
W, wife of H, filed a petition seeking a
disappearance, actual division will only be
judicial declaration of presumptive death of
at the end of four years.
her missing husband, H, who has been
From the beginning of the four years, the missing and unheard of since 2005.
heir shall be considered the owner and
Will the petition prosper?
possessor of the property, and not only from
the end thereof.
31 32

QUESTION:
ANSWER: Suppose H was 76 years old when he
disappeared in 2005, when shall he be
No, because the presumption is already presumed dead for the opening of his
established by law. succession?
A judicial declaration of presumptive a. 2009
death is required only for purposes of b. 2010
remarriage under Article 41 of the Family
c. 2012
Code.
d. 2015
34
33

QUESTION:
TRANSMISSION BY WILL
What is freak succession?
OR BY OPERATION OF LAW
FREAK SUCCESSION
If a person dies with a will, his estate is to be
This is succession without the triggering distributed in accordance with the rules on
effect of actual death. testamentary succession.
Article 50 of the Family Code gives two
If he dies without a will, or with a void will,
instances which require the payment or
his estate is to be distributed in accordance
delivery of presumptive legitimes before the
with the rules on intestate succession.
actual death of the person who is obliged to
pay it. 36

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TESTAMENTARY
This is succession which results from the
DIFFERENT KINDS designation of an heir, made in a will, and
OF SUCCESSION executed in the form prescribed by law.

• Testamentary LEGAL OR INTESTATE

This is succession which is effected by
• Intestate operation of law in default of a will.
• Mixed
MIXED
This is succession effected partly by will and
37
partly by operation of law. 38

DISTINCTIONS BETWEEN HEIRS

DIFFERENT KINDS OF HEIRS
LEGATEES AND DEVISEES
COMPULSORY HEIRS
DEVISEES/LEGATEES are always called to
- primary compulsory heirs succeed to individual items of property.
- secondary compulsory heirs HEIRS are called to succeed to an
indeterminate, fractional or aliquot portion
VOLUNTARY HEIRS
of the decedent’s estate.
INTESTATE HEIRS
39 40

DEVISEES/LEGATEES succeed by particular

title. QUESTION:
HEIRS succeed by universal title.
What is the importance of the distinction
between heirs on the one hand and
DEVISEES/LEGATEES are always called to legatees/devisees on the other?
succeed by will.

HEIRS are called to succeed either by will

or by operation of law.
41 42

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ANSWER:
GENERAL RULE
There is no difference in their capacity,
effect and solemnities.
EXCEPTION
Distinction is important in cases of:
 PRETERITION
 IMPERFECT DISINHERITANCE.
43
REQUISITES OF PRETERITION
FIRST: There is a total omission in the
inheritance.
SECOND: The omission must be of a
compulsory heir.
THIRD: The compulsory heir omitted
must be in the direct line.
45
NO PRETERITION if a compulsory heir is
given a share in the inheritance no matter
how small.
REASON: The heir is entitled only to the
completion of his legitime. (Art. 906, CC)
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WHAT IS PRETERITION?
The omission in the testator’s will of one,
some or all of the compulsory heirs in
the direct line whether living at the time
of the execution of the will or born after
the death of the testator.
TOTAL OMISSION
IN THE INHERITANCE
THERE IS PRETERITION even if a compulsory
heir is named in the will, but he is not given
any share, the heir not having been
expressly disinherited.
REASON: Preterition involves an omission in
the inheritance, not in the will.
46
NO PRETERITION even if a compulsory heir
is not given anything in the will, but he had
already received a donation from the
testator.
REASON: A donation to a compulsory heir is
considered as an advance of the legitime.
(Art. 1073 CC)
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NO PRETERITION if a compulsory heir is

given a legacy, even if less than his
legitime. NO PRETERITION if part of the estate has
been given to a compulsory heir, whether
indicated in the will or not.
REASON: Remedy of the aggrieved heir is
to demand completion of his legitime.

49 50

OMITTED HEIR MUST BE A COMPULSORY COMPULSORY HEIR OMITTED

HEIR MUST BE IN THE DIRECT LINE

THERE IS NO PRETERITION of voluntary THERE IS NO PRETERITION of a

heirs or instituted heirs. surviving spouse.

NEITHER IS THERE PRETERITION of Although a compulsory heir, the spouse is

intestate heirs, unless they are not an heir in the direct line.
compulsory heirs.
51 52

PROBLEM:
EFFECTS PRETERITION
T has three legitimate children, A, B and C.
T made a will instituting his children, A
FIRST EFFECT and B, and a friend, F, as his sole heirs. C
was omitted in the inheritance.
The institution of heirs is automatically
annulled without need of court action.
Estate is 90,000. How should the
distribution be made?
INTESTACY RESULTS.
53 54

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90,000 ANSWER:

The preterition of C annuls the institution of

A, B and F as T’s heirs. Intestacy results.

A, B and C will each get 30,000.

A B C F The friend, F, gets nothing.

Instituted Instituted Preterited Instituted
56

PROBLEM:
T executed a will containing only one M
provision whereby he instituted his sister,
S, as his only heir.

Surviving T when he died were his parents,

F and M, and his sister, S.

How shall T’s estate of 50,000 be T S

distributed upon his death?
50,000 Instituted
57 58

ANSWER: IMPORTANT:

The omission of F and M constitutes In preterition, the preterited heir gets his
preterition which will result in the share not only of the legitime, but also of
annulment of the institution of S. the free portion.

Consequently, the entire will is void; This rule differs from a case of imperfect
estate is to be distributed as in intestacy. disinheritance where the disinherited heirs
gets only his legitime.

59 60

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PROBLEM:
SECOND EFFECT
In T’s will, he gave F, a friend, a legacy of
Although the institution of heirs is annulled, 10,000; instituted his son, A, as heir; and
the legacies and devises shall remain valid deliberately omitted his other son, B.
insofar as they are not inofficious.
If the estate is 100,000, how should the
In other words, they are not voided, but estate be distributed on T’s death?
they are merely reducible if the legitime has
been impaired.
61
62

ANSWER:
T 100,000 The preterition of B renders the institution
of heirs void.
The legacy is effective for the legitime has
not been impaired.
A B F Therefore, the remaining 90,000 will be
divided intestate as follows:
Instituted Preterited Legatee
10,000 A = 45,000
B = 45,000
F = 10,000
63 64

PROBLEM:
In the previous problem, if the legacy to F PROBLEM:
had been 60,000 and the other facts are the
same, how would the estate be distributed? In T’s will, he gave his friend, X, a legacy of
ANSWER: 60,000; instituted A and another friend, Y,
as heirs; and deliberately omitted B.
Since the estate is 100,000, the free portion
is only 50,000.
The legacy of 60,000 should be reduced by If the estate is 100,000, how should the
10,000. estate be distributed on T’s death?
A = 25,000
B = 25,000
F = 50,000 65 66

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ANSWER:

The preterition of B renders void the

T 100,000 institution of A and Y.

The legacy to X, though valid, is reducible

because it impairs the legitime of A and B.

A = 25,000
A B X Y B = 25,000
Instituted Preterited Legatee Instituted X = 50,000
60,000 Y=0
67 68

OBSERVATIONS: WHAT IS INEFFECTIVE DISINHERITANCE?

1.. Without specification of the cause

The legatee (X) is entitled to receive his (no cause stated)
legacy.
2. Cause denied by the heir and not proved
But the instituted heir (Y) is not entitled to by the instituted heir
receive anything from the estate. (false cause)

3. Cause not given by law

(illegal cause)
69
70

QUESTION: What are the legal effects of PROBLEM:

ineffective, imperfect or invalid disinheritance?
ANSWER:
FIRST EFFECT: The institution of heirs is
annulled insofar as it may prejudice the
person disinherited, or insofar as the
legitime of said heir is impaired.
SECOND EFFECT: The devises, legacies and
other testamentary dispositions shall be
valid to such extent as it will not impair the
legitime. 71
Testator T has three legitimate children: A,
B, and C.
In his will, T disinherited A and instituted B
and C as his heirs. The disinheritance of A
was invalid because it was for a cause not
provided by the law.
If the hereditary estate is 90,000, how shall
the distribution be made?
72

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ANSWER:
T 90,000
The institution of B and C remains valid,
but their shares are to be reduced to give
A his legitime.

Had there been preterition here, each

A B C would receive 30,000 each. Therefore:
Ineffectively Instituted Instituted A - 15,000
Disinherited
B - 37,500
C - 37,500
73 74

PROBLEM:
T
Estate is 100,000. T gave a legacy of 70,000
to a friend, X. Y, a legitimate child, was
ineffectively disinherited.
Y X
How much should X and Y get?

75 76

ANSWER: QUESTION:
X (legatee) gets only 50,000. The legacy to In his will, testator T (a) disinherits his
him is reducible by 20,000 so as not to daughter, A, because “she married a good
impair Y’s legitime. for nothing gigolo despite my repeated
warnings that she shouldn’t marry him” (b)
Y (disinherited heir) gets his legitime of omits his wife, W, (c) leaves a legacy of
50,000. 10,000 to his mistress, M, and 5,000 to his
driver, E, and (e) institutes his son, B, as his
sole heir. Distribute T’s estate of 100,000.
77 78

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ANSWER:
T W
The disinheritance of A was ineffective
because the ground relied upon by T does
not constitute a valid ground for
disinheritance under Article 919 of the Civil
A B M E Code. Hence, the testamentary provisions in
the will shall be annulled but only to the
extent that A’s legitime was impaired.

79 80

The total omission of W does not constitute The legacy of 5,000 in favor of E is not
preterition because she is not a compulsory inofficious because it does not exceed the free
heir in the direct line. Only compulsory heirs portion. Hence, E shall be entitled to receive it.
in the direct line may be the subject of The institution of B, which applies only to the
preterition. Not having been preterited, she free portion, shall be respected.
is entitled to her legitime. In sum the estate of T will be distributed as
follows: A 25,000
The legacy in favor of M is void under Article B 45,000
1028 of the Civil Code for being in
W 25,000
consideration of her adulterous relations
E 5,000
with T. She is, therefore, disqualified to
receive the legacy of 10,000. 81
M 0

QUESTION:
If all other facts in the previous problem are
T W the same, except that the disinheritance of
A was for a valid cause, how shall T’s estate
be distributed?
ANSWER: A 0
A B M E B 50,000 (legitime)
20,000 (by institution)
W 25,000 (legitime)
D 5,000 (legacy)
83
M 0 84

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EFFECTS OF A VALID DISINHERITANCE

 Heir is deprived of his legitime.

 Children of the disinherited child can

represent the latter, but the right of
FORMALITIES
representation extends only to the OF A WILL
legitime. (Art. 923, CC)

 There is no right to represent a

disinherited spouse or disinherited
parent. 85 86

WHAT IS A WILL?
QUESTION:
An act whereby a person is: What are the ambiguities in a will?

PERMITTED, with the formalities ANSWER:

prescribed by law, TO CONTROL to a
certain degree the disposition of his 1. Intrinsic (Latent) ambiguity.
estate.
2. Extrinsic (Patent) ambiguity.
To take effect after his death (Art. 783, CC)
88

CASES OF INTRINSIC AMBIGUITY

INTRINSIC AMBIGUITY
INTRINSIC AMBIGUITY is ambiguity which
does not appear on the face of the will. It is
is discovered only by extrinsic evidence.
EXAMPLE: “I institute as heir my friend,
Rod.” Testator has two friends named
Rod.
89
 when there is an imperfect description of
the heir, legatee or devisee.
 when there is an imperfect description of
the gift being given (“a house”)
 when only one recipient is designated, but
it turns out that there are two or more
who fit the description. (Art. 789, CC)

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EXTRINSIC AMBIGUITY HOW MAY AN AMBIGUITY

 appears on the face of the will.
 by examining the provision itself, it is
evident that it is not clear.
EXAMPLE: “I institute some of my
brothers and some of my sisters as
my heirs.”
IN A WILL BE CURED?
No difference in curing intrinsic or extrinsic
ambiguities.
FIRST, examine the will itself.
SECOND, admit extrinsic evidence.
Testator’s oral declarations are excluded.
92

PROBLEM:
T instituted “a brother-in-law” as one of his
heirs. When T died, it was discovered that ANSWER:
he has three brothers-in-law: A, B and C.
In making the will, T orally stated that he This is intrinsic ambiguity; the doubt arises
was referring to brother-in-law, A, but because of circumstances outside the will.
among T’s files was found a memorandum
that he wanted brother-in-law, B, to be his
heir.
C, the third brother-in-law, states that he
was the one referred to.
What kind of ambiguity is this? 93 94

QUESTION:
QUESTION: Who among the brothers-in-law should
Is T’s oral declaration extrinsic evidence? inherit from T?
ANSWER:
ANSWER: B should inherit in view of the written
memorandum which is admissible
Yes, but it is inadmissible to cure the
extrinsic evidence.
defect.
NOTE: In the law on evidence, evidence is
admissible if it is relevant and competent.
95

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AFTER-ACQUIRED PROPERTIES
GENERAL RULE: Property acquired between
the execution of the will and the death of
the testator are not included among the
properties disposed of.
EXCEPTION: Unless it appears in the will
that such was the intention of the testator.
(Art. 793, CC)
PROBLEM:
T made a will in 1998 giving to his friend, F,
all his cars. In 1998, T had three cars, but in
2005, when T died, he had at the time of his
death eight cars.
How many cars will F get?

97 98

ANSWER: VALIDITY OF WILLS IN POINT OF TIME

Three only. EXTRINSIC VALIDITY Determined by the law

The rule under Article 793 of the Civil Code
is applicable only to legacies and devises.
As to institution of heirs, Article 781 of the
Civil Code applies.
in force at the time the will is made. (Art.
795, CC)
INTRINSIC VALIDITY Determined by the law
in force at the time of decedent’s death.

REQUISITES IN THE
EXECUTION OF A WILL
CAN THERE BE A VALID ORAL WILL?

1. Testator be at least 18 years of age. No. “Every will must be in writing and
2. Testator be of sound mind. executed in a language or dialect known to
the testator.” (Art. 804, CC)

101

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KINDS OF WILLS
A will may either be notarial or holographic
depending upon the formalities or
solemnities which accompanied their
execution.
ESSENTIAL REQUIREMENTS
OF A NOTARIAL WILL
1. The will must be in writing.
2.The will must be executed in a language
or dialect known to the testator.
3. The will must be subscribed (signed) at
the end thereof by the testator’s name
written by another person in his
presence, and by his express direction.
7. The will must contain an attestation
clause.
8. The will must be acknowledged before a
notary public by the testator and the
witnesses.
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WHAT IS A NOTARIAL WILL?
A notarial will is one which is executed in
accordance with the formalities prescribed
by Arts. 804 to 808 of the Civil Code.
4. The will must be attested and
subscribed by three or more credible
witnesses in the presence of the
testator and of one another.
5. The testator or the person requested by
him to write his name and the
instrumental witnesses of the will shall
also sign and every page thereof, except
the last, on the left margin.
6. All the pages of the will must be
numbered correlatively in letters placed
on the upper part of each page.
106
TESTATOR IS DEAF OR DEAF-MUTE
9. He must personally read the will, if able
to do so, otherwise, he shall designate
two persons to read it and communicate
to him, in some practicable manner the
contents thereof.
108
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TESTATOR IS BLIND
9. The will shall be read to him twice; once
by one of the subscribing witnesses, and
again, by the notary public before whom
the will is acknowledged.
109
ANSWER:
There is no law which requires that the
will must expressly state the language
used in the will and that such language
was known by the testator.
What the law requires is that the language
was known by the testator. (Suroza v.
Honrado, 110 SCRA 381)
111
MEANING OF “SIGNED IN THE
PRESENCE OF”
“SIGNED IN THE PRESENCE OF” does not
mean that the testator and the
instrumental witnesses actually saw each
other sign.
TRUE TEST: Whether they might have seen
each other sign, had they chosen to do so,
considering their mental and physical
condition and position with respect to each
other at the moment of inscription of each
signature. (Nera v. Rimando, 18 Phil. 450)
113
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PROBLEM:
The probate of a notarial will is opposed
on the ground that it does not contain a
statement attesting that the language
used therein was known by the testator.
Should the opposition be given due
course?
110
QUESTION:
If a person is a beneficiary in a will, is he
competent to act as an instrumental
witness?
ANSWER:
Yes, but his institution as an heir, or the
legacy or devise given to him, shall be
rendered void, unless there are three other
competent witnesses. (Art. 823, CC)
In other words, he is disqualified from
inheriting from the testator. (Art. 1027, CC)
112
WHAT IS MEANT BY
“ATTESTATION” OF A WILL?
It is the act of witnessing the execution of a
will by the testator in order to see and take
note mentally that the requirements of the
law for the execution of a will and that the
signature of the testator exists as a fact.
PURPOSE OF ATTESTATION
To render available proof that there has
been compliance with the statutory
requirements for the execution of a will. 114
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SUBSCRIPTION
The manual act of the instrumental
witnesses in affixing their signatures in the
will.
Only purpose is identification.
WHAT ARE THE ESSENTIAL FACTS TO BE
STATED IN THE ATTESTATION CLAUSE?
 Number of pages upon which the will is
written.
That the testator signed the will and every
page thereof, or caused some other person
to write his name, under his express
direction, in the presence of the
instrumental witnesses.
 That the instrumental witnesses witnessed
and signed the will and all the pages thereof
in the presence of the testator and of one
another. (Art. 805, CC)
PROBLEM:
T died in 2005, leaving behind a
holographic will which is entirely written,
dated and signed in her own handwriting.
However, the will contains insertions and
cancellations which are not authenticated
by her signature. For this reason, the
probate of T’s will is opposed by her
relatives who stood to inherit intestate
from her.
May T’s will be probated?
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DISTINCTIONS BETWEEN ATTESTATION
AND SUBSCRIPTION
ATTESTATION is an act of the senses.
SUBSCRIPTION is an act of the hand.
ATTESTATION is mental.
SUBSCRIPTION is mechanical.
ATTESTATION is to render available proof
that the will had been executed in
accordance with the law.
SUBSCRIPTION is for identification.
115 116
FORMALITIES OF
HOLOGRAPHIC WILL
1. Written by the hand of the testator himself.
2. Dated by the hand of the testator himself.
3. signed by the hand of the testator
himself.
4. Executed in a language or dialect known to
the testator.
117 118
ANSWER:
Yes, the will as ORIGINALLY WRITTEN
may be probated. The insertions and
alterations were void since they were not
authenticated by the full signature of T
pursuant to Article 814 of the Civil Code.
The original will remains valid because a
holographic will is not invalidated by the
unauthenticated insertions or alterations.
(Ajero v. Court of Appeals, 236 SCRA 468)
119 120
20

PROBLEM:
T executed a will in his own handwriting,
signed by him at the end of each page on the
left marginal space of every page, except the
last page. The document bore no date.
However, below T’s every signature, were the
signature of two witnesses, who later testified
that the will was executed in their presence on
January 1, 1995, and that T was in full
possession of his faculties at that time and
even explained to them the details of the will
he was writing down.
Is the will formally valid?
121
CONFLICTS RULES IN THE
EXECUTION OF WILLS
TESTATOR IS FILIPINO
 WILL IS EXECUTED IN THE PHILS.
- Phil. Law
 WILL IS EXECUTED ABROAD
- law of the place
- Phil. law (Arts. 815-816, CC)
123
PROBLEM:
A, a Filipino, executed a will in Kuwait
while there as a contract worker.
Assume that under the laws of Kuwait,
it is enough that the testator affix his
signature in the presence of two
witnesses and that the will need not
be acknowledged before a notary
public.
May the will be probated in the
Philippines?
125
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ANSWER:
The will is not valid either as a notarial
will or a holographic will. It is not valid
as a notarial will because this requires
three witnesses. Neither is it valid as a
holographic will because the will must
be entirely written, dated and signed by
the hand of the testator. The fact that
the witnesses testified as to the date of
execution of the will did not cure the
defect. Lacking the date, it cannot be
probated as a holographic will.
122
TESTATOR IS AN ALIEN
 WILL IS EXECUTED IN THE PHILS.
- Phil. law (Art. 17, CC)
- national law (Art. 817, CC)
 WILL IS EXECUTED ABROAD
- lex loci (Art. 17, CC)
- national law (Art. 816, CC)
- law of domicile
- Phil. law
124
JOINT WILL
A single testamentary instrument
which contains the wills of two or
more persons jointly executed by
them, either for their reciprocal
benefit or for the benefit of a third
person.
126
21

IS A JOINT WILL VALID?
Whether in the Philippines or
abroad, Filipino citizens are
prohibited from executing joint
wills. This is a matter of public
policy. (Arts. 818, 819, CC)
REASON: It may lead to the
commission of parricide.
127
ANSWER:
By clear implication under Art. 819 of
the Civil Code, the prohibition does not
apply to foreigners, only to Filipinos.
The first par. of Art. 17 of the Civil Code
applies insofar as alien testators are
concerned.
129
ANSWER:
Yes, the will can be probated in the
Philippines insofar as the estate of Eleanor is
concerned. While the Civil Code prohibits the
execution of joint wills here and broad, such
prohibition applies only to Filipinos. Hence,
the joint will which is valid where executed is
valid in the Philippines, but only with respect
to Eleanor. Under Article 819, it is void with
respect to Manuel whose joint will remains
void in the Philippines despite being valid
where executed.
8/19/2018
QUESTION:
Is a joint will executed by aliens
abroad, valid according to their
national law and the law of the place
of execution, valid in the Philippines?
128
QUESTION:
Manuel, a Filipino, and his American
wife, Eleanor, executed a Joint Will in
Boston, Massachusetts when they were
residing in said city. The law of
Massachusetts allows the execution of
joint wills. Shortly thereafter, Eleanor
died. Can the will be probated in the
Philippines for the settlement of her
estate?
SUBSTITUTION OF HEIRS
SUBSTITUTION OF HEIRS is the
appointment of another heir so that he
may enter into the inheritance in
default of the heir originally instituted.
(Art. 857, CC)
132
22

KINDS OF
SUBSTITUTION OF HEIRS
133
3. RECIPROCAL
Takes place when two or more persons
are not only instituted as heirs, but are
also reciprocally substituted.
135
ESSENTIAL REQUISITES OF
FIDEICOMMISSARY SUBSTITUTION
 There must be a first heir called primarily to
the enjoyment of the estate.
 There must be a second heir.
 An obligation clearly imposed upon the first heir
to preserve and transmit to the second heir the
whole or a part of the estate.
 The first and second heirs must be only one
degree apart.
137
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1. SIMPLE OR COMMON
Takes place when the testator designates
one or more persons to substitute the heir
or heirs instituted. (Art. 859, CC)
2. BRIEF
Two or more persons are designated by
the testator to substitute for one heir.
COMPENDIOUS
One person substitutes for two or more
heirs.
134
4. FIDEICOMMISSARY
Takes place when the FIRST heir (fiduciary)
instituted is entrusted with the obligation to
preserve and to transmit to a SECOND heir the
whole or part of the inheritance.
Provided the substitution does not go
beyond one degree from the heir originally
instituted.
Provided further that the 1st heir and the 2nd
heirs are living at the time of the death of the
testator. (Art. 863, CC)
136
 Both heirs must be alive (or at least
conceived) at the time of the
testator’s death (Art. 863, CC)
 Must be made in an express manner
(Art. 867, CC)
 Must not burden the legitime.
138
23
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FIRST REQUISITE
FIRST HEIR  He is almost like a usufructuary, with
the right to enjoy the property.

 Like a usufructuary, he cannot

 must be capacitated; must accept
alienate the property itself.
the inheritance.
 Not a mere trustee, for while he  Like a usufructuary, he is bound to
also administers, he carries out make an inventory to know what
not another’s wishes, but his properties he must preserve and
own, insofar as the management transmit. NO BOND is required.
of the property property is
concerned.
139 140

SECOND REQUISITE THIRD REQUISITE

PRESERVE AND TRANSMIT SECOND HEIR
• Obligation must be given clearly and • ownership is consolidated to him
expressly. upon its transmission.
• If mere advice or suggestion, no • the second heir inherits not from
fideicommisary substitution. the first heir but from the testator.

EXAMPLE: T made X his heir so that X would
enjoy the property as long as X lived, but after
his death, the same should go to Y. No
fideicommisary substitution.
141
• must be capacitated to succeed not
the first heir but the testator.
142

FOURTH REQUISITE
ONE DEGREE APART ANSWER:
The first and second heirs must be one
FIRST VIEW: “One degree
degree apart.
apart” means one transfer, one
transmission, one substitution,
QUESTION: the purpose being to prevent,
successive entailments regard-
What is “one degree apart” in less of relationship.
fideicommissary substitution?
(View of JBL Reyes, Puno, Caguioa and Paredes Jr.)

143 144

24

SECOND VIEW: “One degree”
means one generation. This means
that the substitute may be the
parent or child of the first heir;
thus, no other person can be the
fideicommissary.
(View of Tolentino, Paras, Padilla)
145
SECOND HEIR PREDECEASES TESTATOR
First heir shall receive the property free from
encumbrances.
BOTH HEIRS PREDECEASE TESTATOR
Intestacy results, and legal heirs of the
testator shall receive the property.
147
ANSWER:
A fideicommissary substitution has no effect
unless it is made expressly. The testamentary
clause under consideration is not a
fideicommissary substitution.
The will establishes only a simple or common
substitution, the necessary result of which is
that B, upon the death of T, became the owner
of an undivided half of the property. Being a
co-owner, B can demand partition of the
property.
149
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FIFTH REQUISITE
BOTH HEIRS MUST BE ALIVE
FIRST HEIR PREDECEASES TESTATOR
Disposition shall be considered merely as a
simple substitution. In which case, the
second heir shall receive the property.
146
PROBLEM:
T devised one-half of a parcel of land to A,
and the other half to B, subject to the
condition that upon B’s death, whether
before or after that of T, the portion
devised to him (B) shall be delivered to A
or his heirs should he die before T.
Upon T’s death, B demanded partition of
the property. A refused on the ground that
B is only a fiduciary heir (second heir).
148
PROBLEM:
T died in 1990 with a will. In his will, he
devised a house and lot to his friend, A, as
first heir and to B, A’s son, as second heir.
B died in 1995 survived by his two children
E and F. A himself died in 2000 survived by
his two children C and D.
150
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In the settlement of A’s estate, E and F filed a T died 1990.

motion to exclude the house and lot
originating from T on the ground that they
are the exclusive owners of the property. A (1st heir)
+ 2000
C and D opposed the motion on the ground
that B, the second heir, predeceased T, and
B
that therefore, the fideicommissary (2nd heir)
substitution did not produce any effect as far
as B, the second heir, is concerned.
+ 1995 C D
Should the opposition be sustained?
E F
HOUSE AND LOT
151 152

ANSWER:

No. B, the second heir, acquires a right to the

succession from the time of the testator’s
death, even though he, B, should die before
the fiduciary, A. TESTAMENTARY
B inherited from T as second heir when the CONDITIONS AND DISPOSITIONS
latter died in 1990. When B died in 1995, he
was able to transmit his right to his own
heirs, E and F.
When A (first heir) died in 2000, the right of E
and F over the property became absolute.
153 154

QUESTION:
Under the law, the testator has no right
to impose any condition upon the
legitime, and that should he do so, the
same shall be considered as not
imposed.
Is this rule absolute?
ANSWER:
The rule is not absolute.
Testator can validly prohibit the
partition of the legitime for a period not
exceeding 20 years.
This is the only prohibition or condition
that can affect or burden the legitime.
(Arts. 494, 1083, CC)

155 156

26
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PROBLEM:
“If C dies after 10 years
A, a bachelor, named his brother, B, as following A’s death.”
heir if their sister, C, dies after ten years
following A’s death. B died two years after
A’s death, while C died one year later. A’s A B C
estate is claimed by D and E, B’s legitimate
children, and by F, G and H, C’s legitimate 150,000
children.
If A’s estate is valued at 150,000, how D E F G H
shall the distribution be made?

157 158

ANSWER: IMPOSSIBLE AND

ILLEGAL CONDITIONS
In a conditional institution, such as what
EFFECT: Impossible or illegal conditions
is involved in the problem, the instituted
heir (B) must survive not only the testator are deemed not imposed. (Art. 873, CC)
but also the fulfilment of the condition in
the will. (Art. 1034, CC) Since B did not survive NOTE: The rule is different in
the condition, his institution is conditional obligations: The condition
inoperative. Intestacy results. A’s estate and the obligation are void. (Art. 1183, CC)
must therefore be distributed to all
nephews and nieces in equal shares at
30,000 each.
159 160

ABSOLUTE PROHIBITION TO CONTRACT

A FIRST MARRIAGE ABSOLUTE PROHIBITION TO
CONTRACT
Condition A RE-MARRIAGE
is void for being contrary to 162
public policy.
 Condition is void. EXCEPTION: The condition is valid when
imposed:
 Considered as not imposed.
on the widow by the deceased spouse.
 Contrary to public policy. on the widow by the ascendants or
descendants of the deceased spouse.

27

RELATIVE PROHIBITION
TO CONTRACT MARRIAGE
163
Condition is perfectly valid.
EXAMPLE:
Not to marry a particular person.
Not to marry for a particular time.
No to marry for a number of years.
ANSWER:
The condition is valid insofar as the free
portion is concerned, since the absolute
prohibition to remarry was imposed by
the deceased spouse.
The condition is void insofar as the
legitime is concerned for no condition
can be imposed on the legitime. (see Art.
874, CC)
165
ANSWER:
Yes, but he must give a security to
guarantee he would not enter any
gambling casino for one whole year upon
T’s death.
The security is called “caucion muciana.”
If he enters any casino during the
prohibited period, he should return
whatever he may have received, together
with its fruits and interest. (Art. 879, CC)
167
8/19/2018
PROBLEM:
H instituted his wife as sole heir (no
other compulsory heirs existed) on
condition that when she becomes a
widow, she must never remarry. Two
years after H died, the widow remarried.
Is she entitled to the inheritance?
164
PROBLEM:
T institutes his friend, F, as heir on
condition that he should not enter any
gambling casino here or abroad for
one whole year after T’s death.
Is F entitled to receive the inheritance
upon T‘s death?
166
WHAT IS MODAL INSTITUTION?
Modal institution occurs when any or all of
the following are stated:
 The object of the institution.
 The application of the property left by the
testator.
 The charge imposed by the testator.
168
28

DISTINGUISH BETWEEN MODAL AND
CONDITIONAL INSTITUTION
MODAL INSTITUTION The inheritance is
immediately demandable, provided that security is
given. (Art. 882, CC)
INSTITUTION WITH A SUSPENSIVE
CONDITION Even if the heir wants to give security,
he will not be allowed to do so, and will not be
allowed to get the property in the meantime;
instead, the property will be placed under
administration. (Art. 880, CC)
169
PROBLEM:
T institutes his friend, F, as heir “on
condition that A marries B.”
Modal or conditional?
ANSWER:
This is a suspensive condition; the
inheritance is not demandable until
fulfilment of the condition.
171
PROBLEM:
T’s will contains the following
testamentary provision: “I institute A as
heir. He will use the money for the
establishment of a medical school.”
Modal or conditional?
ANSWER:
This is a modal institution; inheritance is
demandable right away, provided
security is given. 173
8/19/2018
When the condition, however, is
RESOLUTORY or is NEGATIVE, the
property can be taken upon the giving of
a security. (Art. 879, CC)
From this point of view, there is hardly
any difference between modal and
conditional institution.
170
PROBLEM:
T institutes his friend, F, as heir on
condition that “A does not smoke for a
period of one year.”
Conditional or modal?
ANSWER:
This is a negative condition; inheritance
is demandable right away, provided
security is given.
172
INSTITUTION OF HEIRS
An act by virtue of which the testator
designates or names in his will the
person or persons who are to succeed
him in his property and transmissible
rights and obligations. (Art. 840, CC)
29
 8/19/2018

WHAT ARE THE LIMITATIONS ON THE IMPORTANT PRINCIPLES

RIGHT OF A PERSON INSTITUTION OF HEIRS
TO INSTITUTE HEIRS?

One who has no compulsory heirs may dispose

by will all his estate or any part of it in favor of PRINCIPLE OF EQUALITY
any person having capacity to succeed.
Heirs instituted without designation of
One who has compulsory heirs may dispose of shares shall inherit in equal parts. (Art.
his estate provided he does not contravene the 846, CC)
provisions of the law with regard to the
legitime of said heirs.
175 176

PRINCIPLE OF INDIVIDUALITY
GENERAL RULE: PRINCIPLE OF SIMULTANEITY
When the testator institutes some heirs
individually and others collectively as when he When the testator calls to the succession
says, “I designate as my heirs A and B, and the a person and his children, they are all
children of C,” those collectively designated shall
be considered as individually instituted. deemed to have been instituted
EXCEPTION:
simultaneously and not successively. (Art.
849, CC)
Unless it clearly appears that the intention of
the testator was otherwise.
(Art. 847, CC)

177 178

PROBLEM: T 180,000

In T’s will, he instituted his legitimate

children, A and B, the “children of his
deceased son, C,” and a friend, M, as
heirs without designation of their A B C+ M
shares. C’s children are D, E and F.
Instituted Instituted Instituted
Estate is 180,000. How shall the
distribution be made?
D E F
Instituted Instituted Instituted
179 180

30
 8/19/2018

ANSWER: STEP 1
Apply Arts. 846 and 847, Civil Code.
Satisfy the legitimes of A, B, D, E and F.
ART. 846: Heirs instituted without designation of
shares shall inherit in equal parts.
Estate is 180,000: Legitime portion is
ART. 847: When the testator institutes some heirs
one-half, or 90,000.
individually and others collectively as when he says,
“I designate as my heirs A and B and the children of As to the legitimes, A and B will inherit
C,” those collectively designated shall be considered in their own right; while D, E, and F will
as individually instituted, unless it clearly appears inherit by right of representation
that the intention of the testator was otherwise.
181 182

DISTRIBUTION OF THE LEGITIME

A = 30,000 (own right) STEP 2

B = 30,000 (own right)
D = 10,000 (right of rep.) The free portion of 90,000 shall
E = 10,000 (right of rep.) be divided equally among the
instituted heirs, A, B, D, E, F
F = 10,000 (right of rep.) and M, in accordance with Arts.
90,000 846 and 847.

183 184

DISTRIBUTION OF THE FREE PORTION

THEREFORE:
A = 30,000 as compulsory heir
A = 15,000 15,000 as voluntary heir
B = 15,000 B = 30,000 as compulsory heir
D = 15,000 15,000 as voluntary heir
E = 15,000 D = 10,000 by right of rep.
F = 15,000 15,000 as voluntary heir
M = 15,000 E = same as D
F = same as D
90,000
M = 15,000 as voluntary heir
185 186

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QUESTION: ANSWER:

A voluntary heir who dies before the testator

Explain the first paragraph of Art. 856 of transmits nothing to his heirs.
the Civil Code regarding the predecease
of a voluntary heir. REASON:
A voluntary heir cannot be represented.

187 188

SECOND PARAGRAPH OF ART. 856, CC

A COMPULSORY HEIR who:

1. dies before the testator QUESTION:

2. is incapacitated to succeed May the right to revoke a will be waived?

3. renounces the inheritance
shall transmit no right to his own heirs, except
in the cases expressly provided in the Civil
Code.

189 190

ANSWER: REVOCATION OF WILLS

No. Until the death of the testator, a
will is ambulatory and revocable.
1. by implication of law
The heirs do not acquire a vested
right to the disposition in a will till 2. by some will, codicil or other writing
after the testator’s death.
3. by an overt act

191 192

32
 8/19/2018

REVOCATION BY AN OVERT ACT PROBLEM:

Testator placed his will on a stove so that it

would be burned later when a fire would
BURNING be lighted in the stove.
Sufficient revocation even if small part of The will was later removed by another
the will is burned even though the entire person from the stove before the stove
writing itself is left untouched. was lighted.
Is the will deemed revoked?
193 194

ANSWER:
No. While there was intent to revoke,
there was no overt act of burning.
NOTE:
If the person who retrieved the will was
an heir or legatee or devisee, he will not
inherit because he is incapacitated by
reason of unworthiness under Art. 1032,
CC.

195 196

OVERT ACT OF TEARING PROBLEM:

Even a slight tear is sufficient. What about if the testator

What matters is the intent to revoke. crumpled his will?

197 198

33

ANSWER:
No revocation.
It is not one of the modes recognized by
law.
NOTE: Tearing of signature is sufficient
revocation because the signature goes to
the very heart of the will.
199
ANSWER:
Revocation may be express or implied.
Implied revocation consists in complete
inconsistency between two wills.
A notarial will may be revoked by a
holographic will, vice-versa.
The revoking will must be valid.
201
One day when A was clearing up his desk,
he mistakenly burned, along with other
papers, the only copy of his holographic
will.
His business associate, D, knew well the
contents of the will which was shown to
him by A the day it was executed. A few
days after the burning incident, A died.
Both wills were sought to be probated in
two separate petitions.
Which of the two petitions will prosper?
203
8/19/2018
QUESTION:
What is revocation by the execution of
another will or codicil?
200
PROBLEM:
A, with no known living relatives,
executed a notarial will giving all his
estate to his girlfriend, B. One day, he
had a serious altercation with B. A few
days later, he was introduced to a
charming lady, C, who later became a
dear friend. Soon after, he executed a
holographic will expressly revoking the
notarial will and designating his new
friend, C, as sole heir.
202
ANSWER:
The probate of the notarial will will
prosper. The holographic will cannot be
admitted to probate because a
holographic will can only be probated
upon evidence of the will itself, unless
there is a photocopy. But since the
holographic will was lost and there was
no other copy, it cannot be probated and
therefore the notarial will will be
admitted to probate because there is no
revoking will.
204
34

Section 6, Rule 76 of the Rules of Court
provides that no will shall be proved as a lost or
destroyed will “unless its provisions are clearly
and distinctly proved by at least two credible
witnesses.”
If the foregoing two-witness rule to prove a lost
or destroyed will is to be strictly applied in the
instant case, the holographic will which A
mistakenly burned cannot be probated since
there is only one witness, D, who can be called
to testify as to the execution and existence of
the will.
ANSWER:
It must be observed that T left two wills.
In his first will, T bequeathed the ricefield to
his friend, F, and instituted as heirs in equal
shares his two brothers, A and B, with respect
to the rest of the estate. In his second will, T
instituted his wife and son as heirs in equal
shares.
Under our law on revocation of wills, a will may
be revoked by another will. The revocation may
be effected either expressly or impliedly. Since
there is no express revocation, is there an
implied revocation in the instant case?
FIRST VIEW
According to the first view, reading the two
wills together it is clear that the testatorial
intention is that only the testator’s wife and
son shall inherit. They are instituted as
universal heirs with respect to the
hereditary estate in its totality. Therefore,
the second will in its totality cannot stand
together with the first will in its totality.
Consequently, the incompatibility between
the two wills is total and absolute in
character. Hence, the first will is impliedly
revoked by the second will.
8/19/2018
PROBLEM:
T, a bachelor of 60, executed a will
bequeathing a ricefield worth 100,000 to his
friend, F. The will further provided that “all
other assets owned by me after death shall be
equally divided between my two brothers, A
and B.
T subsequently married a young woman,
begot a son, and left another will designating
his wife and son as his heirs in equal shares.
The second will did not expressly revoke the
first will. He left an estate worth 300,000
(including the ricecefield).
Who is entitled to the ricefield? Who acquires
the rest of T’s assets?
205 206
It is undeniable that there is an implied
revocation if the testamentary dispositions
found in the first will are totally or partially
incompatible with those found in the second
will. It is also undeniable that the
incompatibility must be absolute in character
in the sense that the testamentary
dispositions cannot stand together. The real
issue, therefore, is whether the two
testamentary dispositions found in the first
will can stand together with the
testamentary disposition in the second will.
207 208
The testator’s widow and son are,
therefore, entitled to the entire estate,
including the ricefield.
ESTATE 300,000
SON 150,000 (plus 50,000)
WIDOW 75,000 (plus 25,000)
FP 75,000
209 210
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SECOND VIEW Consequently, F is entitled to the ricefield but

only to the extent that it does not encroach
upon the legitime of T’s son and widow.
According to the second view, only the ESTATE 300,000
institution of A and B in the first will as
SON 150,000
heirs and that portion or part of the
WIDOW 75,000
bequest given to F which will impair FP 75,000
the legitime of T’s son and widow are
revoked by the second will. The reason Considering that the value of the ricefield is
is that it is only to that extent that there 100,000, the bequest is inofficious to the
is absolute incompatibility between the extent of 25,000; it shall be reduced to that
extent.
two wills.
211 212

DOCTRINE OF DEPENDENT
RELATIVE REVOCATION
Stated otherwise, the revocation is subject
to a SUSPENSIVE CONDITION:
If the testator revokes his will with the present
intention of making a new one and the new will is That the testator will make a new will and
not made, or if made, fails to take effect for any that such will shall take effect.
reason whatsoever, it will be presumed that the
testator prefers the old will to intestacy.
If such condition is not fulfilled, then there is
The old will can still be admitted to probate. no revocation.

213 214

PROBATE OF WILLS FORMULA IN THE COMPUTATION OF

NET HEREDITARY ESTATE

 Probate of wills is a special proceeding Gross Estate

to establish the validity of a will. - Debts/Charges
+ Collationable Donations
 Probate is in the nature of a proceeding
= Net Hereditary Estate
in rem. (Art. 838, CC)

 A testator cannot deprive courts of their

jurisdiction.

36
 8/19/2018

PROBLEM:
T died leaving an estate worth 100,000 T 100,000 (debts: 30,000)
and debts amounting to 30,000.
During his lifetime, T had given a donation
of P50,000 to A, his legitimate son. When T
died, two legitimate sons, A and B,
survived him.
How much is the legitime of A and B?
A B
DONATION
50,000

217 218

ANSWER:
COMPUTATION:
Since the net hereditary estate is 120,000,
the legitime of the legitimate children is
Gross Estate 100,000 60,000.
Debts - 30,000 Since there are two children, each will
70,000 receive 30,000 as his legitime.

Collate +50,000 The legitime of A is only 30,000. The 50,000

donation to him should first be charged to
120,000 (NHE)
the legitime.
219 220

The excess of 20,000 (50,000 minus 30,000) QUESTION:

should be taken from the free portion
which is 60,000. Should donations inter vivos to children be
collated?
The net free portion of 40,000 (60,000
minus 20,000) goes to the instituted heirs. YES.

Out of the actual net assets of 70,000 (because Should donations inter vivos to strangers be
the debts have been paid), B gets 30,000; A collated?
gets 0; free portion of 40,000 equals 70,000. YES.

221 222

37
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EXPLANATIONS:
Donations to strangers are collationable Paragraph 2 of Article 909 of the Civil Code
because they are considered as advances is clear:
on the free disposal, just as donations
inter vivos to children are considered as
advances on their legitimes. Donations to strangers are also taken into
account in determining the legitime – “of
Besides, how can the free portion be which the testator could have disposed by
determined or computed unless the his last will.”
value of said donations be added to the
actual estate?

223 224

PROBLEM: SOLUTION:
A gave B, his legitimate child, a donation 100,000 (actual estate)
inter vivos of 50,000 and to C, a friend, a 50,000 (donation to B)
donation inter vivos of 100,000. When A 100,000 (donation to C)
died, his remaining estate was worth 250,000 (NHE)
only 100,000. LEGITIME = 125,000
FREE PORTION = 125,000
If A was survived by his only child, B,
The donation to C (100,000) does not exceed
should the donation to C be reduced? the free portion of 125,000. Hence, there is
no need to reduce it.
225 226

LEGITIME PURPOSE OF LEGITIME

LEGITIME is to protect the children and

That part of the testator’s
property which he cannot
dispose of because the law
has reserved it for certain
heirs who are, therefore,
called compulsory heirs. (Art.
886, CC)
the surviving spouse from the unjustified
anger or thoughtlessness of the other
spouse.
If there are no compulsory heirs, there
can be no legitime.

227 228

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LEGITIMATE TESTATOR
COMPULSORY HEIRS

1. Legitimate children and their legitimate

In determining who are compulsory heirs, descendants.
it is important to know whether the
2. Legitime parents and their legitimate
testator is - ascendants.
LEGITIMATE 3. Surviving spouse.
ILLEGITIMATE 4. Illegitimate children and their
descendants, whether legitimate or
illegitimate.
229

ILLEGITIMATE TESTATOR CLASSES OF COMPULSORY HEIRS

231

1. Legitimate children and their legitimate

descendants PRIMARY COMPULSORY HEIRS
2. Illegitimate parents (NO OTHER They get their legitime even in the presence of
ASCENDANTS) other primary compulsory heirs and even in the
presence of secondary compulsory heirs.
3. Surviving spouse
They are those mentioned in Nos. 1, 3, 4.
4. Illegitimate children and their
descendants, whether legitimate or
illegitimate
232

SECONDARY COMPULSORY HEIRS PROBLEM:

Parents, legitimate or illegitimate, are secondary
compulsory heirs.
IF TESTATOR IS LEGITIMATE, parents are excluded
by No. 1 only.
IF TESTATOR IS ILLEGITIMATE, parents are are
excluded by Nos. 1 and 4.
T is the testator; F and M are his
parents; A is T’s legitimate child; B and
C are T’s illegitimate children; S is T’s
surviving spouse; and W is the wife of
A.
Who are entitled to inherit from T?

233 234

39
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ANSWER:
F M
 A, B, C and S are all entitled to their
legitimes even if all of them are present.
T S  F and M are entitled to their legitimes
only in default of a legitimate child such
as A.
 If only F and A are present, A is entitled
to his legitime, but not F.
W A B C
 W, A’s wife is not a compulsory heir of T
but is a compulsory heir of A.

235 236

LEGITIMATE CHILDREN
1/2 of the estate, in equal portions, whether
they survive alone or with concurring
compulsory heirs.
TABLE OF LEGITIMES
LEGITIMATE PARENTS ALONE
1/2 of the estate, whether they survive alone
or with other compulsory heirs.

237 238

SURVIVING SPOUSE ALONE

ILLEGITIMATE CHILDREN ALONE
1/2 of the estate.
1/2 of the estate, to be divided equally
1/3 if marriage is in articulo mortis and among themselves.
deceased spouse dies within three
months after marriage.
ILLEGITIMATE PARENTS ALONE
1/2 if despite marriage in articulo
mortis, deceased and surviving spouse 1/2 of the estate.
have been living as husband and wife for
more than five years (Art. 900, CC)
239 240

40
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ONE LEGITIMATE CHILD LEGITIMATE CHILDREN

SURVIVING SPOUSE SURVIVING SPOUSE

Legitimate child, 1/2 of the estate. Legitimate children, 1/2 of the estate.
Surviving spouse,1/4 of the estate. Surviving spouse, same as one LC.

241 242

ONE LEGITIMATE CHILD

LEGITIMATE CHILDREN
SURVIVING SPOUSE
ILLEGITIMATE CHILDREN
ILLEGITIMATE CHILDREN
Legitimate children, 1/2 of the estate.
Legitimate child, 1/2 of the estate.
Illegitimate children, 1/2 of one LC.
Surviving spouse, 1/4 of the estate.
Illegitimate children, 1/2 of one LC.

243 244

LEGITIMATE CHILDREN
LEGITIMATE PARENTS
SURVIVING SPOUSE
ILLEGITIMATE CHILDREN
ILLEGITIMATE CHILDREN
Legitimate parents, 1/2 of the estate.
Legitimate children, 1/2 of the estate.
Illegitimate children, 1/4 of the estate.
Surviving spouse, share of one LC.
Illegitimate children, 1/2 of one LC.

245 246

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LEGITIMATE PARENTS LEGITIMATE PARENTS

SURVIVING SPOUSE SURVIVING SPOUSE

Legitimate parents, 1/2 of the estate. Legitimate parents, 1/2 of the estate.
Illegitimate children, 1/4 of the estate.
Illegitimate children, 1/4 of the estate.

247 248

ILLEGITIMATE CHILDREN
ILLEGITIMATE PARENTS
SURVIVING SPOUSE
CHILDREN OF ANY CLASS
Illegitimate children, 1/3 of the estate.
Illegitimate parents are excluded.
Surviving spouse, 1/3 of the estate.

249 250

ILLEGITIMATE PARENTS
SURVIVING SPOUSE
Illegitimate parents, 1/4of the estate.
Surviving spouse, 1/4 of the estate.
PROBLEM:
T dies leaving an estate of 100,000. The
surviving relatives are: A, a legitimate
child, and W, the wife. What are the
corresponding
legitimes?

251 252

42
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ANSWER:
100,000 T W
A 50,000
W 25,000
FP 25,000
A

253 254

PROBLEM

T died with four legitimate children, A, 100,000 T W

B, C and D and a surviving spouse, W. T
left an estate valued at 100,000.

How much is the legitime of each of the

heirs?
A B C D

255 256

ANSWER
PROBLEM

A 12,500 T is survived by his legitimate children, A

and B, and his illegitimate children, C and
B 12,500
D. The net value of his estate is 200,000.
C 12,500
D 12,500 What is the legitime of each of the
W 12,500 survivors?
FP 37,500
TOTAL 100,000
257 258

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ANSWER

200,000 T
A 50,000
B 50,000
C 25,000
A B C D D 25,000
FP 50,000
TOTAL 200,000
259 260

PROBLEM
200,000 T
All the facts in the previous problem are
the same, except that T had left four
(instead of two) illegitimate children, C,
D, E, and F.
A B C D E F
What is the legitime of each of the
survivors?

261 262

ANSWER
A 50,000
B 50,000 PROBLEM
C 25,000 T is survived by his wife, W, his
D 25,000 legitimate child, A, and his illegitimate
E 25,000 child, B. Net value of the estate is
100,000. What is the legitime of each
F 25,000 survivor?
FP 0_____
TOTAL 200,000
263 264

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ANSWER
100,000 T W
A 50,000
W 25,000
A B
B 25,000
FP 0

265 266

PROBLEM T W
100,000

Suppose T died with two illegitimate

children, B and C (instead of only one
illegitimate child, B), what is the legitime
of the survivors?
A B C

267 268

PROBLEM:
ANSWER T has three legitimate children; A, B, and
C; a wife, W; a father, F; and two
A 50,000 illegitimate children, D and E. A is a
“special child,” and T wants to leave to
W 25,000 him as much of his estate as he can
B 12,500 legally do under the law.
C 12,500 State the aliquot parts of the estate that
FP 0 T can leave all the foregoing relatives.
Assume a net estate of 120,000 and that
all the above-named relatives survived T.
269 270

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F ANSWER
F 0
A 20,000
120,000 T W
B 20,000
C 20,000
W 20,000
D 10,000
A B C D E
E 10,000
FP 20,000
TOTAL 120,000
271 272

DIVISION IN THE
ASCENDING LINE A B C D

A and B are the paternal grandparents,

while F is the father; C and D are the
maternal grandparents while M is the F M
mother. T is the testator, leaving a
hereditary estate of 100,000.
T
100,000
273 274

EXPLANATION:
If all (except T) survive, the
grandparents get nothing. 50,000 is
the legitime of F and M together, so
each gets 25,000. The remaining
25,000 is the free portion.
If M predeceased T, F gets 50,000 as
legitime. The remaining 50,000 is the
free portion. C and D cannot represent
M, because there is no right of
representation in the ascending line.
The rule of proximity also applies.

275 276

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If F and M predeceased T, and the others
are still alive, the paternal line gets half
of the legitime and the maternal line
gets the other half. The paternal line
gets 25,000 and this should be divided
equally between A and B.
PROBLEM:
T is survived by his legitimate parents, F
and M, and his wife, W. The net value of
the estate is 100,000. What is the
legitime of the survivors?

What has been said of the paternal line

is also true of the maternal line.

277 278

ANSWER
F M

F 25,000
M 25,000
W 25,000
T W FP 25,000
100,000

279 280

QUESTION F M

T is survived by his legitimate parents,

F and M, and his illegitimate children, T
100,000
A and B. The net value of the estate is
100,000. What is the legitime of the
survivors?

A B
281 282

47
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ANSWER
PROBLEM:

F 25,000 T is survived by his legitimate parents,

M 25,000 F and M, his wife, W, and his
A 12,500 illegitimate children, A and B. The net
B 12,500 value of the estate is 72,000. What is
the legitime of the survivors?
FP 25,000

283
284

ANSWER
F M
F 18,000
M 18,000
72,000 T W W 9,000
A 9,000
B 9,000
FP 9,000
A B
285 286

PROBLEM

T is survived by his wife, W, and his 90,000 T W

illegitimate children, A and B. The net
value of the estate is 90,000. What is
the legitime of the survivors?

A B

287 288

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ANSWER PROBLEM

T, an illegitimate person, is survived by

W 30,000 his parents by nature, F and M, and his
A 15,000 widow, W. The net estate is 100,000.
What is the legitime of the survivors?
B 15,000
FP 30,000

289 290

ANSWER
F M
F 12,500
M 12,500
W 25,000
FP 50,000
100,000 T W
Illegitimate

291 292

PROBLEM F M

T, an illegitimate person, is survived by

his parents by nature, F and M, and his
illegitimate children, A and B. The net 100,000 T Illegitimate

estate is 100,000. What is the legitime

of the survivors?
A B

293 294

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ANSWER
RESERVA TRONCAL

• A system of reservation of property by virtue of

F 0 which an ascendant inherits from his descendant
M 0 property, which property the descendant in turn
had acquired by gratuitous title from another
A 25,000 ascendant, or brother or sister.
B 25,000 • ascendant is obliged to reserve such property for
the benefit of relatives who are within the third
FP 50,000
degree and who belong to the line from which
said property came (Art. 891, CC)
295

RESERVA TRONCAL is an extraordinary QUESTION

reservation of property because it
constitutes an exception both to the Why is reserva troncal regarded as an
system of legitime and the order of extraordinary reservation of
intestate succession. property?

297 298

PERSONAL ELEMENTS OF RESERVA

ANSWER
Instead of the property passing to the
compulsory heirs of the ascendant-
reservista, it passes automatically and by
operation of law to the relatives of the
descendant-propositus who are within the
third degree and who belong to the line from
whence it came.
TRONCAL
ORIGIN: The ascendant, brother or sister from
whom the descendant-propositus has acquired
the property by gratuitous title.
PROPOSITUS: The descendant from whom the
ascendant (reservista) in turn had
acquired the property by operation of law.

299 300

50
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RESERVATARIOS
RESERVISTA: The ascendant of the propositus
who is obliged to reserve the property.
ORIGIN RESERVISTA
RESERVATARIOS: The relatives of the propositus
who are within the third degree and who
belong to the line from which the property
came and for whose benefit the reservation is GRATUITOUS OPERATION OF
constituted. TITLE LAW

PROPOSITUS
301 302

ELEMENTS OF RESERVA TRONCAL

FIRST: The property is inherited by operation of
law (legal succession or legitime) by an
ascendant from his descendant upon the death
of the latter.
SECOND: The property had been previously
acquired by gratuitous title (such as donation inter
vivos, remission, succession) by the descendant
from another ascendant or from a brother or
sister.
303
THIRD: The descendant has died without any
legitimate issue in the direct descending line
who could inherit from him.
FOURTH: There are relatives of the descendant-
propositus who are within the third degree and
who belong to the line from which the property
came. (This is a condition subsequent. If there
be no such relatives, no reserva troncal.
304

The land is subject to reserva troncal.

EXAMPLE:
F and M are the parents of C.
F died leaving a will, one provision of which
gave a parcel of land to C.
One year later, C died without any
descendant, and without any will. The
mother, M, then inherited the land.
M owns it only till she dies, and at her
death, it should not go to anybody whom
she desires, but is reserved by law in
favor of the relatives of F, the line from
which the property came.
F’s relatives must be within the third
degree, to be counted from C.

305 306

51

FIRST ELEMENT: ORIGIN
• must be an ascendant or brother or sister.
• must be a legitimate relative because
reserva troncal exists only in the legitimate
family.
• The transmission from the origin to the
propositus must be by gratuitous title.
307
THIRD ELEMENT: RESERVISTA
• The ascendant who inherits from the
propositus by operation of law. It is he who
has the obligation to reserve.
• No reserva if he inherits it as free portion by
virtue of a will.
• He is the full owner of the property, subject
to a resolutory condition.
309
QUESTION
Can the reservista sell, mortgage, dispose
or otherwise encumber the property?
311
8/19/2018
SECOND ELEMENT PROPOSITUS
• must be a legitimate descendant (or legitimate
half-sibling) of the origin.
• the propositus is the descendant (brother or
sister) whose death gives rise to the reserva,
and from whom the third degree is counted.
• While the propositus is still alive, there is no
reserva yet, therefore, he is the absolute owner
of the property with full power to alienate or
encumber.
308
• If at reservista’s death, there should still
exist relatives within the third degree of
the propositus, and belonging to the line
from which the property came, his
ownership is terminated.
• the property is not part any more of his
estate. Instead, ownership is transferred
to the third degree relatives of the
propositus.
310
ANSWER
Yes, but subject to the reserva.
The reservatarios can get the real
property from the transferee as soon as
ownership is transferred to such
reservatarios, without prejudice to our
Land Registration Laws.
312
52
 8/19/2018

FOURTH ELEMENT: RESERVATARIOS PROBLEM:

• Relatives within the 3rd degree (from the
propositus) who will become the full
owners of the property the moment the
reservista dies.
• They inherit the property from the
propositus
• Must be a legitimate relative of the origin
and the propositus.
313
H died leaving an estate of 100,000. His
widow, W, gave birth to a child four
months after H’s death, but the child died
five hours after birth. Two days after the
child’s death, W also died because she had
suffered from difficult childbirth. The
estate of H is now being claimed by his
parents, A and B, and by C and D, the
parents of W. Who is entitled to H’s estate
of 100,000?
314

ANSWER:
A B C D
If the child had an intra-uterine life of not
less than seven months, it inherited from
the father. Consequently, the estate of
+ H
100,000
W+ 100,000 shall be divided equally between
the child and his mother as legal heirs.
Upon the death of the child, its share of
50,000 goes by operation of law to the
CHILD + mother, W, which is subject to reserva
troncal.
5 hrs. after birth
315 316

A B C D Under Article 891 of the Civil Code, the

reserva is in favor of relatives
belonging to the paternal line and who
are within three degrees from the
child. The parents of H (A and B) are

100,000
H W entitled to the reserved portion which
is 50,000 as they are two degrees
related from the child. The 50,000
50,000 inherited by W from H will go to her
50,000
operation
CHILD operation parents, C and D, as her legal heirs.
of law
of law
317 318

53

However, if the child had an intra-
uterine life of less than seven months,
half of the estate of H, or 50,000, will be
inherited by W, the widow, while the
other half, or 50,000, will be inherited
by the parents of H. Upon the death of
W, her estate of 50,000 will be inherited
by her own parents, C and D.
319
The house and lot is now claimed by:
(a) B, widow of A and grandmother of F
(b) C, son of A and B and uncle of F
(c) G, sister and only living relative of E
To whom shall the property be adjudicated?
321
ANSWER:
Half to C; other half to G.
F, the propositus, died with a will
instituting his mother, E, as sole heir.
Consequently, only one-half of the
property passed to her by operation of
law since that is her legitime. Only this
portion of the property has become
reservable.
323
8/19/2018
PROBLEM:
Before his death in 1990, A donated to his
grandson, F, a child of his predeceased
son D, a house and lot worth 600,000.
In 1995, F died with a will instituting his
mother, E, as his sole heir. His estate
consisted entirely of the house and lot
which he had received from A.
In 1998, E also died but without a will.
320
A B
C D E G
DONATION
F WILL
322
B is not entitled to the reservable portion of
the property.
Although a relative of the propositus in the
second degree, B is merely related by affinity
to the ascendant (A) from whom the property
came. She does not, therefore, belong to the
“line from which the property came.”
A reservatario must not only be related by
consanguinity to the propositus within the
third degree, but he must also be related by
consanguinity to the ascendant from whom
the property came.
324
54

C is entitled to the reservable portion of
the property since he is not only a third
degree relative by consanguinity of the
propositus, but he also belongs to the line
from which the property came.
G, on the other hand, is entitled to the part
of the property which is not reservable in
accordance with the ordinary rules of
intestate succession.
In 1995, X, who was very sickly, donated
to his half-brother, Y, a parcel of land. X
died the following year.
In 1998 Y also died. He died intestate
and without any surviving issue. The
land which he had acquired from X was
inherited by his father, F, who was his
only legal heir.
F died intestate in 2002, survived only by
his father, C.
A B C
+ +
E D F operation of law by an ascendant (F) from his
+ +
X DONATION
Y INTESTATE
8/19/2018
PROBLEM:
D, only daughter of B, married E, only
son of A, in 1981.
A son, X, was born to the couple in 1982.
E died in a vehicular accident in 1984.
In 1986, D married F, only son of C. A
son, Y, was born to the couple in 1988. D
also died in a vehicular accident in 1992.
325 326
The land which had originated from X is
now being claimed by A and B on the
ground that it is reservable. C claims
that the property belongs to him and
him alone as his inheritance from his
son, F.
Who among the grandfathers is entitled
to the property?
327 328
ANSWER:
B alone is entitled to the property.
The property is reservable.
+
FIRST, the property had been acquired by
descendant (Y) upon the death of the latter.
SECOND, the property had been previously
acquired by gratuitous title by the descendant
(Y) from a brother (X).
329 330
55
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THIRD, descendant (Y) died without any

legitimate issue who can inherit from him. A B C
In order to determine who can qualify as a
reservatario, two tests should be applied:

First, is the claimant a relative of the

+ + +
descendant-propositus within the third
degree? E D F
Second, does he belong to the line from which
the reservable property came?
Applying the tests, it is clear that:
+ +
A cannot qualify because he is not even a X DONATION
Y INTESTATE
relative of the descendant-propositus, Y.
331 332

A B C
Neither can C qualify because
he does not belong to the line + + +
from which the property came.
He is not related by E D F
consanguinity to X.

+ +
X DONATION
Y INTESTATE

333 334

A B C

Only B can qualify. He is not only a

+ + +
relative of Y within the third degree; he E D F
also belongs to the line from which the
reservable property came.
+ +
X DONATION
Y INTESTATE

335 336

56

THIRD DEGREE RELATIVES OF
PROPOSITUS
• Parents of the propositus (1st degree)
• Grandparents, full and half-brothers, full and
half-sisters of the propositus (2nd degree)
• Uncles and aunts by blood; great
grandparents; nephews and nieces of the
propositus (3rd degree)
337
ANSWER
The rules of intestate succession shall apply.
Art. 891 of the Civil Code merely determines
the group of relatives to whom the
reservable property should be returned.
It is silent with regard to the individual right
of such relatives to the property.
339
• If all the claimants belong to the same
line, the principle of proximity shall
apply.
• If some of the claimants are brothers
• In other words, relatives of the
propositus nearest in degree shall
exclude the more remote ones.
• Thus, between brothers or sisters and
uncles or aunts – brothers and sisters
are preferred.
341
8/19/2018
QUESTION
Suppose there are several persons who
can qualify as reservatarios, to whom
shall the reservable property be
adjudicated?
338
• If some claimants are in the direct
ascending line and others are in the
collateral line, the principle of preference
between lines shall apply.
• Relatives of the propositus in the direct
ascending line shall exclude his relatives
in the collateral line.
• If the claimants are grandparents and
brothers or sisters of the propositus, the
grandparents are preferred.
340
and sisters of the propositus and others
are nephews and nieces, the principle
of representation shall apply.
342
57
 8/19/2018

• If all the claimants are brothers and
sisters of the propositus and some of
them are of the full-blood and others are
of the half-blood, the principle of double
share for full blood collaterals shall apply.
343
PROBLEM:
Among the properties in the estate of D, who
died intestate and without issue, were a farm,
which came from his father, B, and a house,
which he acquired from A, B’s father. In the
partition of D’s inheritance, the house was
allotted to B and the farm to C, D’s mother.
Upon the death of B and C, who were
simultaneously killed in a car accident, the farm
was claimed by A and E, a child of B and C born
after D’s death, while the house was claimed
also by A and E and F, the latter being C’s child
by a prior marriage.
Who owns the farm and house?
344

A
E ANSWER:
HOUSE: This property was acquired by D from his
grandfather, A, and was transmitted by D to B, his
HOUSE father. There is no reserva troncal because there
HOUSE
B + C +
is no change of line. Hence, E alone is entitled to
inherit the house.
FARM: The farm originally came from B, the
FARM father of D. and from D it went to his mother, C.

D + A
There is a change of line line from paternal to
E F maternal line. The farm is reservable property and
must be acquired by relatives within the third
FARM degree of the propositus (D) and belonging to the
345
paternal line. 346

WHO IS ENTITLED TO THE FARM?
There are two theories:
In the “delayed intestacy doctrine,” the
preferences in the rules of intestate
succession must be observed.
Under this theory, A alone will inherit
the farm because in intestacy, the direct
line excludes the collateral line. Hence,
A, the grandfather of P, should exclude
E, the brother of D.
347
The second theory is to the effect that
relatives in the same degree inherit in
equal shares without distinction as to
the direct or collateral line. Under this
theory, which allows no distinction as to
direct or collateral line, A and E will
inherit the farm in equal shares since
they are both second degree relatives of
D, both belonging to the paternal line.
In any case, F does not inherit since he is
not a reservatario.
348

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QUESTION
INTESTATE SUCCESSION
What is intestate succession?

349 350

ANSWER:

INTESTATE SUCCESSION is succession BASIC PRINCIPLES OF

prescribed by law which takes place INTESTATE SUCCESSION
when the expressed will of the decedent
has not been set down in a will.

351 352

CONCURRENCE PROXIMITY

Relatives of the decedent nearest in degree

Even if there is an order of intestate exclude the more remote ones, without
succession, compulsory heirs are never prejudice to the right of representation
excluded from the inheritance. when proper.

All compulsory heirs are intestate heirs, but By virtue of representation the farther
not all intestate heirs are compulsory heirs. becomes just as near.

59

PROBLEM:
P, deceased, is survived by A, a
legitimate half-sister on his father’s
side, and an aunt, B, his mother’s
sister. He left as his only property that
which was inherited from his mother.
He died intestate.
Who shall succeed to P’s estate?
355
PREFERENCE OF LINES
Relatives in the direct descending line
exclude those who are in the direct
ascending and collateral lines.
Relatives in the direct ascending line
exclude those who are in the collateral
line.
MEANING OF REPRESENTATION
Right by fiction of law.
The representative is raised to the place
and the degree of the person
represented.
Acquires the rights which the person
represented would have if he were living
or if he could have inherited. (Art. 970, CC)
359
8/19/2018
ANSWER:
A shall succeed to P’s estate. Both A and B are
collateral relatives of the decedent, P,
therefore, the rule of proximity is applicable.
Relatives nearest in degree exclude the more
remote ones. A is a second degree relative of P,
while C is a third degree relative.
Besides, under the general order of intestate
succession, brothers and sisters, whether of the
full or half-blood, are always preferred to
uncles or aunts.
356
There is no right of representation in the
ascending line, but there is right of
representation in the descending line (Art. 972,
par. 1, CC).
In the collateral line, the right of
representation is given only to children of
RIGHT OF REPRESENTATION
brothers and sisters. (Art. 972, par. 2, CC)
PROPRIETY OF REPRESENTATION
• PREDECEASE (testate and intestate).
• INCAPACITY (testate and intestate).
• DISINHERITANCE (testate only).
360
60

SCOPE OF REPRESENTATION
In intestate succession, the right of
representation covers all that the person
being represented would have inherited.
In testamentary succession, the right of
representation covers only the legitime.
(Arts. 865-1035, CC)
There is no right to represent a voluntary
heir.
T 90,000
+ A B C
D
GRANDCHILDREN
GRANCHILDREN ALWAYS inherit by right of
representation.
This is true whether they concur with
children of the decedent or not.
EXCEPTIONS:
Art. 43 and Art. 992, Civil Code
8/19/2018
PROBLEM:
T has three legitimate children: A, B and C.
The eldest, A, has a legitimate child, D. In
T’s will, he gave each child 30,000; but A
predeceased T. Divide T’s estate of 90,000.
361 362
ANSWER
D gets 15,000 which is A’s legitime.
B and C will each get 37,5000. D is not allowed
to get the extra 15,000 because in this respect,
his father, A, was a voluntary heir.
HAD T DIED INTESTATE, D gets 30,000
corresponding to the share of A which
represents all that A would have inherited if he
was not incapacitated.
363 364
GRANCHILDREN INHERIT
IN THEIR OWN RIGHT
Whenever all the children of the
decedent repudiate the inheritance, the
grandchildren inherit in their own right,
for here representation is not proper.
(Art. 977, CC)
365
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P 90,000 NOTE:
Whenever there is succession by
representation, the division of the estate
shall be made per stirpes.
A B C REASON: The representative or
representatives shall not inherit more than
what the person they represent would
inherit, if he were living our could inherit.
(Art. 974, Civil Code)
D E F G H
45,000 22,500 22,500 0 0 367 368

QUESTION ANSWER

What are the two ways of inheriting? • per stirpes (as a group)
• per capita (per person)

• by representation
• one’s own right.

369 370

TESTATE INTESTATE
T 90,000 P 60,000

+ A B C + A B C
Instituted Instituted 20,000 20,000
15,000 15,000
+ 22,500 + 22,500
D
D 20,000
15,000 371 372

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TESTATE INTESTATE
T 90,000 P 90,000

+ A B C + A B C
Instituted Instituted 45,000 45,000
22,500 22,500
+ 22,500 + 22,500

D D
0 373 0 374

TESTATE INTESTATE
T 100,000 P 100,000

+ A B C + A B C
Instituted Instituted 40,000 40,000
25,000 25,000
+18,750 + 18,750

D D
12,500 375 20,000 376

• Nephews and nieces inherit by right of

SUCCESSIONAL RIGHTS OF representation when they concur with
NEPHEWS AND NIECES aunts and uncles provided that
representation is proper, and that their
own parents should not have
repudiated.
Nephews and nieces inherit either by
right of representation or in their own
• They inherit in their own right whenever
right. (Art. 975, CC)
they do not concur with aunts and
uncles.

378

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QUESTION

B and C are A’s brothers; X, the legitimate A B C +

child of B; Y and Z, the legitimate children 90,000
of C. Estate is 90,000. A is the decedent, If
C predeceases A, divide the estate.
X Y Z
45,000 22,500 22,500
379 380

A B + C + A B + C +
90,000 90,000

X Y Z X Y Z
30,000 30,000 30,000 0 45,000 45,000
381 382

THE IRON CURTAIN RULE A

lllegitimate children of legitimates

cannot represent because of the
barrier. + B C +
But illegitimates and legitimates of
illegitimates can represent. (Arts. 902 and
992, CC) D E F G
Art. Art.
384
992 902

64

PROBLEM:
P. the illegitimate son of F and M, died
intestate, without any descendant or
ascendant. His valuable estate is being
claimed by A, the legitimate son of F from
a previous marriage, and B, the legitimate
son of M from a previous marriage.
Who is entitled to inherit from P?
385
ANSWER:
Neither A nor B is entitled to inherit ab
intestato from P. Both are legitimate
relatives of P’s parents and therefore they
fall under the prohibition prescribed by
Article 992 of the Civil Code. (Manuel v. Ferrer,
242 SCRA 477)
387
A B
+ succeed either because legitimate
P C
D
389
8/19/2018
+ +
F M
A P + B
386
PROBLEM:
P, an illegitimate person, died intestate
survived by B, the legitimate brother of
his deceased mother A, and D, his
mother’s legitimate granddaughter who is
a legitimate child of C who predeceased
A.
May B or C or both inherit from A?
388
ANSWER:
B cannot succeed because uncles have
no right to inherit from their
illegitimate nephews. D cannot
relatives have no right to inherit from
an illegitimate child and vice-versa.
390
65
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PROBLEM
EFFECT OF REPUDIATION
A has two children, B and C. B has two
children D and E. D has a child F.
A renouncer can represent, but
cannot be represented. (Arts. 976 and 977, B died in 1993 but D repudiated his share.
CC) Later A died in 1995.

Is D entitled to represent B in the

inheritance of A?

392

INHERITANCE IN
A + 1995 EQUAL SHARES

1993 + B C EXCEPTIONS:
1. Division in the ascending line. (Art. 987,
par. 2, CC)
repudiated D E 2. Division between relatives of the full-
blood and half-blood. (Art. 1006, CC)
3. In cases of representation.
F
393

P 120,000

PROBLEM
A, B and C are the children of P; while A B C
D and E are the children of A; F is the
child of B; G is the child of C.
D E F G
395 396

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ANSWER
P 120,000

If A, B and C repudiated the inheritance,

the estate will be divided among the 4
grandchildren, and each will get 30,000
in his own right. A B C
In repudiation, there is no right of
representation. (Art. 977, CC)
D E F G
397 398

If only C repudiates, A and B will each get

60,000.
D and E are excluded, because the nearer
excludes the farther. (Art. 962, CC)
G is also excluded because there is no right
of representation in case of repudiation.
F is excluded by B. (Art. 977, CC)
If A, B and C all predeceased P, the 4
grandchildren will inherit by right of
representation, not in their own right.
Hence, D and E will each get 20,000; F,
40,000; and G gets 40,000.

399 400

P 120,000

A B C ORDER OF INTESTATE
SUCCESSION

D E F G
401 402

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ESTATE OF A LEGITIMATE CHILD

4. Surviving spouse, without prejudice to the
rights of brothers, sisters, nephews, and
1. Legitimate children and their legitimate nieces, should there by any. (Art. 995, CC)
descendants. (Art. 979, CC)
5. Collateral relatives up to the fifth degree
2. Legitimate parents and other legitimate of consanguinity. (Art. 1010, CC)
ascendants. (Art. 985, CC)
6. State. (Art. 1011)
3. Illegitimate children and their descendants,
whether legitimate or illegitimate. (Arts. 988,
990, 902)

404

ESTATE OF AN ILLEGITIMATE CHILD

1. Legitimate children and their
descendants. (Art. 979, CC)
2. Illegitimate children
descendants, whether legitimate or
illegitimate. (Arts. 988, 989, 990)
3. Illegitimate parents. (Art. 993, CC)
4.Surviving spouse (Art. 994, CC), without
prejudice to the rights of illegitimate
legitimate brothers and sisters and nephews and
nieces who are children of illegitimate
brothers and sisters (by inference from Art. 992)
and other
5.State

405 406

1. LEGITIMATE CHILDREN ALONE

Entire estate to be divided in equal
shares as there are legitimate children.
COMBINATIONS OF (Art. 980, CC)

SURVIVAL AND CONCURRENCE 2. LEGITIMATE PARENTS ALONE

OF INTESTATE HEIRS Entire estate to be divided equally

between the parents. (Art. 985, CC)
3. SURVIVING SPOUSE ALONE
Entire estate. (Art. 995, CC)

407 408

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4. ILLEGITIMATE CHILDREN ALONE

Entire estate. (Art. 988, CC)
7. 5TH DEGREE RELATIVES
5. BSNN ALONE
Entire estate. (Art. 1010, CC)
Entire estate. (Art. 1003, CC)
8. STATE
6. ILLEGITIMATE PARENTS ALONE
Entire estate. (Art. 1011, CC)
Entire estate. (Art. 903, CC)

NOTE: Illegitimate parents inherit intestate only in

default of legitimate or illegitimate descendants of
the decedent.
409 410

9. ONE LEGITIMATE CHILD 10. TWO OR MORE LEGITIMATE CHILDREN

SURVIVING SPOUSE SURVIVING SPOUSE

Legitimate child, ½ of the estate. Consider the surviving spouse as a

legitimate child and then divide the estate
Surviving spouse, ½ of the estate. (Arts. 888
and 996, CC)
by the total number. (Art. 996, CC)

411 412

12. ONE LEGITIMATE CHILD

11. LEGITIMATE CHILDREN ILLEGITIMATE
CHILDREN ILLEGITIMATE CHILDREN
SURVIVING SPOUSE
Estate to be divided in proportion of
two shares for each legitimate child Legitimate child, ½ of the estate.
and one share for each illegitimate (Art. 888, CC)
child.
Surviving spouse, ¼ of the estate.
The legitimes of the legitimate
children shall not be impaired. (Arts. 983 Illegitimate children, ¼ of the estate.
and 985, CC) (applying by analogy Arts. 892, par. 1 and 895,CC)

413 414

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13. TWO OR MORE LEGITIMATE CHILDREN

ILLEGITIMATE CHILDREN
SURVIVING SPOUSE 14. LEGITIMATE PARENTS
Divide the estate according to the ratio of: ILLEGITIMATE CHILDREN

Two shares for each legitimate child. Legitimate parents, ½ of the estate.

Two shares for the surviving spouse.

Illegitimate children, ½ of the estate.
One share each for each illegitimate child. (Art. (Art. 991, CC)
999, CC)

415 416

16. LEGITIMATE PARENTS ILLEGITIMATE

CHILDREN SURVIVING SPOUSE
15. LEGITIMATE PARENTS
SURVIVING SPOUSE Legitimate parents, ½ of the estate.

Legitimate parents, ½ of the estate. Illegitimate children, ¼ of the estate.

Surviving spouse, ½ of the estate.
(Art. 997, CC) Surviving spouse, ¼ of the estate.
(Arts. 896 and 1000, CC)

417 418

18. ILLEGITIMATE PARENTS

17. ILLEGITIMATE CHILDREN CHILDREN OF ANY CLASS
SURVIVING SPOUSE
Illegitimate parents, none (Art. 993, CC).
Illegitimate children, ½ of the estate.

Legitimate or illegitimate children of the

Surviving spouse, ½ of the estate. (Art. 998,
decedent , entire estate.
CC)

419 420

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19. ILLEGITIMATE PARENTS 20. SURVIVING SPOUSE

SURVIVING SPOUSE BSNN

Illegitimate parents, ½ of the estate. Surviving spouse, ½ of the estate.

Surviving spouse, ½ of the estate. BSNN, ½ of the estate. (Art. 1001, CC)

421 422

60,000
PROBLEM:

P died without a will. He is survived by

+ X Y
his widow, W, and by one legitimate son, 30,000
A. The estate is 60,000. How shall the
distribution be made?
A
30,000

423 424

PROBLEM: 72,000

P died without a will. He is

survived by his widow, W, one
+ P W
legitimate son, A, and two 18,000
illegitimate children, B and C. The
estate is 72,000. How shall the
distribution be made? A B C
36,000 9,000 9,000
425 426

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ANSWER:
A is entitled to ½ of 72,000, or 36,000.
W is entitled to ¼ of 72,000, or 18,000.
B and C are entitled to ¼ of 72,000, or
18,000, which shall be divided equally
between them.
PROBLEM:
P died without a will. He is survived by:
(1) A and B, his legitimate children.
(2) W, his widow; and
(3) C, D, E, his illegitimate children.
The net value of his estate is 60,000. How
shall the distribution be made?

427 428

PROBLEM:
60,000
P died without a will. He is survived by:
+ P W (1) A and B, his legitimate children.
15,000
(2) W, his widow; and
(3) C, his illegitimate child.

A B C D E The net value of his estate is 140,000. How shall

the distribution be made?
15,000 15,000 5,000 5,000 5,000

429 430

ANSWER:
140,000

+ P W EXCLUSION THEORY

1. Satisfy the legitimes of the heirs.

2. The balance must be given to the

A B C legitimate children because they
are first in the order of intestate
succession
431 432

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LEGITIMES: Under the exclusion theory, the balance of

17,500 is to be divided equally between A
A 35,000 and B, or 8,750 each.
B 35,000
A 43,750
W 35,000 B 43,750
C 17,500 W 35,000
C 17,500
BALANCE 17,500
TOTAL 140,000
It is with respect to the balance that
there is a conflict of opinion.
433 434

LEGITIMES:
CONCURRENCE THEORY
A 35,000
B 35,000
1. Satisfy the legitimes of the heirs. W 35,000
C 17,500

2. The balance must be divided among BALANCE 17,500

the heirs in the proportion of 2:2:2:1.
Under the concurrence theory, the balance
of 17,500 is to be divided equally among the
heirs in the proportion of 2:2:2:1. Thus,

435 436

A, B and W are entitled to 2/7 each of EXCLUSION OR CONCURRENCE?

17,500, or 5,000 each.
Art. 983, CC: Legitimate and illegitimate inherit in
C is entitled to 1/7 of 17,500, or 2,500. the proportion of 2:1.

A 40,000 Art. 999, CC: Surviving spouse has the same

successional right as a legitimate child.
B 40,000
W 40,000 Under the exclusion theory, the above proportions
C 20,000 are discarded; the spouse would receive a share less
than that of a legitimate child.
TOTAL 140,000 CONCLUSION: Concurrence theory.

437 438

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PROBLEM: 140,000
In the previous problem, B (legitimate) and C
(illegitimate) predeceased P. + P W
(1) B is survived by two children, D and E. D is a
legitimate child, while E is an illegitimate child.

(2) C, on the other hand, is also survived by two

children, F and G. F is a legitimate child, while
G is an illegitimate child.
A B + C +
How shall the distribution be made?

D E F G
439 440

ANSWER: FINAL DISTRIBUTION:

D who is legitimate, can represent his father UNDER THE EXCLUSION THEORY
B.
E cannot because of Art. 992 of the Civil A 43,750 own right
Code.
D 43,750 by representation
F and G can inherit by right of E none
representation. The barrier under Art. 992
does not exist. W 35,500
Since F is legitimate and G is illegitimate, the F 11,666+ by representation
share which would have passed to their G 5,833+ by representation
father, C, they shall inherit in the proportion
of 2:1. TOTAL 140,000
441 442

PROBLEM:
P died without a will. He is survived by: F M
18,000 18,000
(1) F and M, his legitimate parents.

(2) W, his widow; and 72,000 P W

(3) A, B, C, and D, his illegitimate children. 18,000

The net value of his estate is 72,000. How

shall the distribution be made? A B C D
443
4,500 4,500 4,500 4,500 444

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HAD P DIED WITH A WILL: PROBLEM:

F and M, 1/2 of the estate: 36,000, P died intestate survived by: (a) M, his
or 18,000 each. mother; (b) W, his widow; (c) A and B, his
legitimate children; (d) E, his grandson, being
W, 1/8 of the estate: 9,000. the legitimate son of B; (e) F, his other
grandson, being the son of C who was a
legitimate son of P, and who predeceased P;
A, B, C, and D, 1/4 of the estate: (f) G, his grandson, being the son of D, a
4,500 each legitimate son who repudiated the
inheritance from P.
Free portion of 9,000.
Distribute T’s net estate of 120,000.
445 446

M ANSWER:

+ The legal heirs are A, B, F and W.

P W E is excluded by B who is still alive.
F represents C who predeceased P.

+ G is excluded because of the repudiation of D.

A B C D M is excluded by the legitimate children of P.
The answer may be premised on two theories:
THEORY OF EXCLUSION and THEORY OF
E F G CONCURRENCE.
447 471

EXCLUSION
A 20,000 (own right)
B 20,000 (own right)
F 20,000 (representation)
W 20,000
FP 40,000
TOTAL 120,000
Under the Theory of Exclusion, the Free Portion
goes to the legitimate children, A and B, and
grandson F, at 13,333.33 each; they are entitled
to the free portion to the exclusion of the other
heirs because they are first in the order of
succession. 449
CONCURRENCE
In addition to their legitimes, the heirs A, B, F
and W will be given equal shares in the free
portion of 40,000.
A 20,000 plus 10,000
B 20,000 plus 10,000
F 20,000 plus 10,000
W 20,000 plus 10,000
450

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PROBLEM: ESTATE: 240,000

P died without a will. He is survived by:

120,000 40,000 40,000
(1) W, his widow.

(2) A and B, his legitimate brothers. W P A B C +

(3) D and E, children of his deceased brother C.

The net value of his estate is 240,000. How shall

the distribution be made? D E
20,000 20,000
451 452

PROBLEM: ESTATE: 240,000

P died without a will. He is survived by:
(1) W, his widow.

(2) X and Y, children of a deceased legitimate W P A B

brother, A.

(3) Z, child of a deceased legitimate sister, B.

The net value of his estate is 240,000. How shall the X Y Z

distribution be made?

453 454

PROBLEM: ESTATE: 120,000

With her first husband A, B begot two children, D + A B + C +
and E. When A died, B married C with whom she
begot four legitimate children, F, G, H and I. B and
C are now both dead. D died intestate, survived by:

(1) E, a brother of the full-blood.

(2) F, G, H and I, brothers of the half-blood.

The net value of his estate is 120,000. How shall + D E F G H I

the distribution be made?
40,000 20,000 20,000 20,000 20,000
455 456

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ESTATE: 120,000
PROBLEM:
A B + C +
Suppose that in the previous problem,
ALL the five brothers of D predeceased
him, and the only survivors are the
D E + F + G + H + I +
nephews, J, being the legitimate son of
E, and K and L, being the legitimate
children of H, how shall the estate be
divided?
J K L
457 60,000 30,000 30,000
458

ANSWER:
The rule of double share for full-blood
collateral still applies.
If there are nephews ad nieces surviving
the decedent, relationship by the whole or
half-blood becomes material in the
distribution of the estate.
NOTE: The nephews and nieces inherit in their
own right here because they do not concur
with an uncle or aunt.
459
PROBLEM:
B contracted two marriages: the first was
with A, with whom she begot two
legitimate children, D and E; and the
second was with C, with whom she begot
four legitimate children, F, G, H and I.
D died intestate survived by:
460

A B C
(1) E, a brother of the full-blood

(2) F and G, brothers of the half-blood.

+ D E F G H
+ I +
(3) J, a son of H, a deceased half-brother.

(4) L, a grandson of I, and a child of K.

J K +
The net value of his estate is 120,000. How
shall the distribution be made?

ESTATE: 120,000 L
461 462

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ANSWER: PROBLEM:

E 48,000 own right X, an illegitimate person, died without a will.

F 24,000 own right He is survived by:
G 24,000 own right (1) F, his father.
J 24,000 representing H
(2) W, his widow.
L 0
(3) A, his brother.
TOTAL 120,000
(4) B and C, his brothers from his father’s
lawful marriage.
NOTE: L is not entitled to inherit anything
because in the collateral line, inheritance If the net value of X’s estate is 120,000. How
extends only to nephews and nieces. shall the distribution be made?
463 464

ANSWER:

Only F and W are entitled to inherit, at

60,000 each.

Illegitimate parents do not exclude the ACCRETION

surviving spouse.
A, B, and C, brothers of X, are not entitled to
inherit because they are excluded by F
pursuant to the principle of preference of
line.
465 466

ACCRETION
Same inheritance, devise or legacy.
QUESTION:

Heir, devisee or legatee vacates share. When is accretion proper?

(repudiation, incapacity, predecease)
Vacated share Is added or incorporated to co-
heirs, co-devises, co-legatees.

467 468

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TESTATE SUCCESSION
1. predecease IMPORTANT
2. incapacity
No accretion among compulsory heirs
3. repudiation
insofar as the legitime is concerned.
INTESTATE SUCCESSION
Accretion, if it takes place, concerns only
1. repudiation the free portion. (Art, 1021, CC)
2. incapacity

469 470

PROBLEM:

T instituted his legitimate children, A and

T 60,000

B, and a friend, F, as heirs. Estate is

60,000.

Divide the estate.

A B F
471 472

ANSWER:
The institution of A, B and F concerns only the QUESTION
free disposal of 30,000. A and B are first given
their respective legitimes (15,000 each). The free
disposal is then divided equally among the three Suppose A predeceases T, how will his share
instituted heirs: be divided between his co-heirs, B and F?
A 15,000 (CH)
10,000 (VH)
B 15,000 (CH)
10,000 (VH)
F 10,000 (VH)
473 474

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ANSWER:

A’s share in the legitime goes to B in

If F predeceases T, his share in the free
his own right (since this is the
portion will go to A and B by accretion.
legitime).
It is so because they were instituted as
A’s share in the free portion (10,000) voluntary heirs.
will go equally to B and F by
accretion since this is the proportion
in which they were were
instituted to the free portion.

475 476

QUESTION:
Suppose T gave one-half of his estate to F,
and gave A and B their respective legitimes
of ¼ each, to whom should F’s share go if
he predeceases T?
ANSWER
To A and B, not by accretion for they
were not given any part of the free
portion.
Intestacy then results, and A and B will
get F’s share as intestate heirs.

477 478

PROBLEM
X
X died intestate. He is survived by: (1) A, B, D
and E, his legitimate children; (2) F and G,
legitimate children of C (predeceased), a
legitimate son of X; (3) H and I, legitimate
children of D; and (4) J and K, legitimate A B C D E
children of E.

D is incapacitated; while E repudiated the

inheritance.

The net value of the estate is 120,000, how

F G H I J K
shall the distribution be made?
479 480

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ANSWER DISTRIBUTION OF VACANT SHARES

There are three vacant shares.

The share which C would have inherited if
he had not predeceased X.
The share which D would have inherited if
he had the capacity to inherit from X.
The share of C in the estate goes to his
legitimate children, F and G, by
representation.
The share of D in the estate goes to his
legitimate children, H and I, by
representation.

The share which E would have inherited if The share of E in the estate goes to his co-
he had not repudiated it. heirs, A and B, by accretion. An heir who
repudiates cannot be represented.
481 482

FINAL DISTRIBUTION PROBLEM:

A 24,000own right
12,000accretion Testator instituted A, B and C as universal
heirs to his estate valued at 65,000.
B 24,000own right
12,000accretion Testator in his will gave A several properties
worth 15,000; B, 20,000; and C, 30,000.
F 12,000own right
C predeceases the testator. How shall the
G 12,000own right
distribution be made?
H 12,000own right

I 12,000own right
483 484

ANSWER:
PROBLEM:
B and C will each get their inheritance.
P has three legitimate brothers, X, Y and Z.
A’s share of 15,000 goes to B and C by right of
accretion in the proportion of 2:1. (Art. 1019, CC) (1) X predeceases P, but he is survived by his
legitimate child, A.
HEIR DEVISE ACCRETION TOTAL (2) Y is incapacitated, but he has two legitimate
children, B and C.

B 20,000 6,000 26,000 (3) Z repudiates the inheritance.

How shall P’s estate of 120,000 be distributed?

C 30,000 9,000 39,000 485 486

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ANSWER:
The 40,000 share of X who predeceased X goes to

X +
his legitimate child, A, by representation.
P Y Z
The 40,000 share of Y who is incapacitated to
inherit goes to his legitimate children, B and C, by
representation, or 20,000 each.

A B C The share of Z who repudiated the inheritance

goes to A, B and C by accretion in the same
proportion they inherit, or in the proportion of
2:1:1.

487 488

FINAL DISTRIBUTION PROBLEM:

Suppose Z is incapacitated?
A 40,000 by representation
20,000 by accretion Same distribution as in the previous problem.

B 20,000 by representation Suppose Z predeceased the decedent?

10,000 by accretion
A 40,000 own right
B 40,000 own right
C 20,000 by representation
C 40,000 own right
10,000 by accretion
489 490

PROBLEM: ESTATE: 120,000

T, an unmarried person and without any
children of any kind, instituted his friends, A,
B, C and D as his universal heirs to his estate of T
210,000.
T intended the distribution of his estate as REPUDIATED
follows: A, ½ of the estate; B, 1/4; C, 1/8; and
D, 1/8. A B C D
D repudiated the inheritance. How shall the 1/2 1/4 1/8 1/8
distribution be made?

491 492

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ANSWER:
There is no need to check the legitimes since T
left no compulsory heirs.
Assuming there is no provision in the will
regarding substitution of heirs, accretion exists
insofar as D’s share is concerned.
493
ANSWER:
D’S vacant share goes to the other heirs by
right of accretion.
The co-heirs will therefore receive the vacant
share of 26,250 in the same proportion they
inherit.
Since they inherit in the proportion of 4:2:1,
the vacant share is to be divided into 7 parts.
495
CAPACITY TO INHERIT
497
8/19/2018
A is to get it ½ of the estate, or 105,000.
B is to get 1/4 of the estate, or 52,500.
C is to get 1/8 of the estate, or 26,250.
D is to get 1/8 of the estate, or 26,250.
If D’s share is rendered vacant because of
his repudiation of the inheritance, who
gets such vacated share?
494
FINAL DISTRIBUTION
A 105,000 as an instituted heir
15,000 by accretion
B 52,500 as an instituted heir
7,500 by accretion
C 26,250 as an instituted heir
3,750 by accretion
496
QUESTION:
In point of time, what law governs the
capacity of the heir to inherit?
ANSWER:
Art. 1034 CC: The qualification of the heir to
inherit is reckoned at the time of death of
the decedent.
498
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PROBLEM: ESTATE: 100,000

During his last illness, testator T
confessed to a priest, A, who was his only
son. In his will which he made shortly T
after his confession, T gave his son-priest,
A, 60,000 out of an estate worth 100,000.
T gave the remainder of his estate to his
friend, B. A B
How shall T’s estate be distributed?
499 500

ANSWER: PROBLEM:
The son-priest inherits only 50,000 as his The beneficiary in a will is the wife of
legitime.
the minister of the gospel who rendered
The additional 10,000 which is part of the aid to the testator during the latter’s
free portion is nullified by the last illness.
disqualification of the son-priest because he
heard the confession of T during his last Would she be disqualified from
illness. (Art. 1027, par. (1), CC)
inheriting from the testator?
The excess 10,000 shall accrue in favor of the
instituted heir, F.
501 502

ANSWER:
She is qualified. The law extends the …Thank you
disqualification of priests and ministers of
the gospel to their relatives within the
fourth degree as well as to the church, order,
chapter, community, organization or
institution to which they may belong. The
spouse is not included. (No. 2, Art. 1027, CC) NOW GO AND TOP THE BAR!
Otherwise, we would be reading into the
law what is not found there. Besides,
capacity to succeed is the general rule, while
incapacity to succeed is the exception.
Hence, the rules on incapacity must always
be strictly construed.
503 504

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