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SUCCESSION Acquisition of ownership is one thing; it should not be confused

with the right of possession of the things that constitute the
inheritance.
Atty. Avelino Sebastian
Transmission of Inheritance
FINALS REVIEWER Death extinguishes the juridical capacity of a person; as well as
his title to or dominion over the things he owned. From the
CHAPTER I moment of death, the heirs automatically become the
absolute owners of the decedent’s property, rights and
General Provisions obligations.
Art. 774. Transmission of Property
Succession is a mode of acquisition by virtue of which the Butte v. Manuel Uy & Sons
property, rights and obligations, to the extent of the value
- The right of legal redemption under Art 1620 of the Civil
of the inheritance of a person, are transmitted through his
Code is property. Thus, where a decedent dies without
death to another or others, either by his will or by operation
of law. having exercised a right of redemption (and provided it
has not expired), the said right shall be transmitted to
Distinction Between Inheritance and Succession his heirs upon his death. In this event, the right of
redemption is part of the inheritance. However, where
Inheritance- the decedent’s properties, as well as rights and
the right of redemption was acquired after the death of
obligations which are not extinguished by his death and which
the decedent, the same pertains to the heirs directly in
are transmitted to his heirs. (It is the object)
their individual capacities, and not derivatively from the
Succession- a mode of acquisition by virtue of which the decedent. Butte makes a clear distinction as to when
decedent’s property, rights and obligations are transmitted to his the right of redemption is part of the hereditary estate,
heirs. (It is a mode of acquisition) and when it is not. Accordingly, Butte clarifies the issue
as to who may exercise the right of redemption.
ELEMENTS: - In this case, notice should not have been sent to BPI,
1. A Mode of Acquisition but to the heirs. Moreover, notice should not have been
2. Transmission of an Inheritance sent by Manuel Uy and Sons, Inc since they are not the
3. Object of Succession is the Inheritance “vendors”, but rather they are the vendee.
4. Death Triggers Succession Transmission of Rights
5. It is Governed by Will or by Law
Inheritance includes the rights that pertain to him which are not
A Mode of Acquisition extinguished by his death. However, rights that the personal in
Art. 712 enumerated the different modes of acquiring ownership. nature, or where transmission is prohibited by law or by
OLDTIPS (Occupation, Law, Donation, Tradition, Intellectual stipulation of parties thereto, are intransmissible, hence they
Creation, Prescription, Succession) are extinguished by death. Example: right to hold public office,
right arising from certain relationships (rights of a usufructuary),
Mode of acquisition may be ORIGINAL (no previous owner) or rights arising from civil personality and family relations.
DERIVATIVE (has previous owner who transmits title to
transferee) NHA vs Almeida

It is a derivative mode of acquisition subject to estate tax.
Ownership of the PRO is automatically transferred to the heirs
from the moment of decedent’s death.
- An affidavit made a certain disposition of property
which is to take effect upon the death of the affiant. The
case holds that such an affidavit is in the nature of a
will and that therefore, the transmission of the property
and/or rights pertaining thereto is not in the nature of
an assignment. The mode of acquisition is succession.

- However, CJ Puno also insisted that whatever PRO
which a deceased may leave behind, the same should
go to his or her estate for eventual distribution to the
heirs, either by will or by intestacy. This statement is
prone to misinterpretation because in Art 777, the
rights to succession are transmitted to the heirs from
the moment of the death of the decedent. Therefore,
ownership of the inheritance is automatically an
immediately transferred to the heirs. Any proceeding to
settle the estate is in the nature of an administrative
formality in order to ensure the payment of liabilities,
the proper identification of heirs, and the correct
allocation of shares.
- The Supreme Court considered the affidavit as a will.
As such, it should comply with the formal requisites
prescribed in Art 804, 805 and 806. With only 2
attesting witnesses and in the absence of an
attestation clause, the affidavit will be denied probate
and he estate of Herrera shall be distributed under the
rules of intestacy.
Verdad vs CA
- Socorro as the daughter-in-law is not an intestate heir
of his husband’s parents. David (husband) survived his
mother’s death. Socorro’s right to the property s no
because she rightfully can claim heirship in Macaria’s
estate, but that she is a legal heir of her husband, part
of whose estate is a share in his mother’s estate.
Transmission of Obligation
An obligation is a juridical necessity to give, to do or not to do.
As a rule, death of the obligor does not extinguish his
contractual obligations. Succession transfers to the heirs not
only the PR, but also O; however, the law limits the liability of
the heirs to the value of the inheritance.
Before inheritance could be distributed to the heirs, certain
procedures must be completed such as the payment of
outstanding obligations, etc. During this time, the inheritance
should go to the estate of the decedent.
Estate of Hemady vs Luzon Surety
- Art.774 provides that by succession, the PRO of a
deceased person are transmitted through his death to
his heirs either by his will or by operation of law.
Hemady holds that the contingent liabilities of the
decedent are part of the obligations transmitted by his
death to his heirs. Accordingly, contingent claims
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against the estate of a deceased person arising from
the decedent’s contractual undertakings under various
indemnity agreements executed in favor of various
persons and entities are money claims which may be
proved against his estate and/ or his heirs. These
contingent claims may be proved during settlement
proceedings by an indemnified surety even if in the
meantime, no actual liability of the part of an
indemnified surety has arisen by reason of actual
payment made under suretyship agreement.
Accordingly, Hemady holds that contingent obligations
of a deceased person arising from his personal
guaranty are not extinguished by his death.
Transmission to the Heirs through the Estate
GR: Art. 777 categorically states that the rights to succession
are transmitted from the moment of the death of the decedent.
From the moment of the death of the deceased, his inheritance
is transmitted to his heirs, even though such heirs may not have
been identified yet. At no point in time is the inheritance without
an owner; at no point is the estate the owner of the
inheritance or any part thereof.
Nowhere in Art.44 does the law confer juridical capacity on the
estate of a deceased person. Under this provision, the estate of
a deceased is not a juridical entity.
EXPN: Under the case of Billings and Limjoco, The estate of a
decedent is a juridical person who possess juridical capacity.
(Limjoco vs Intestate Estate of Fragante)
Cases Limjoco, Billings and NHA
- There would be a failure of justice unless the estate of
the deceased is considered a ‘person’.
- The estate of a deceased person id considered a
“person” in the avoidance of injustice or prejudice
resulting from the impossibility if exercising such legal
rights and fulfilling such legal obligations of the
decedent as survived after his death unless the fiction
is indulged.
- Sebastian: in the case of NHA, the obligation of the
deceased was fulfilled by her daughter, not her estate.
At no time was there a risk of loss or injustice.
Moreover Art. 777 states that the PRO is transmitted
from the moment of the death of the decedent.
Object of Succession is the Inheritance
Future Property vs Future Inheritance

Future property is anything which a person does not own at
present but which may acquire or proposes to acquire in the
future.
Future inheritance is the contingent universality or complex of
property, rights and obligations that are passed to the heirs upon
the death of the grantor.
NOTE: Future inheritance may NOT be the object of a contract.
(Art. 1347)
Contracts Involving future inheritance
Blas vs Santos
- Art. 776 defines the inheritance of a person. Art. 1347
prohibits any contract involving future inheritance. Blas
interprets the meaning of Art. 1347 in connection with
Art. 776.
Vda De Cabalu vs Tabu
- Under Art. 1347, “ no contract may be netered into
upon future inheritance except in cases expressly
authorized by law.”
- The law applies the ff. requisites to concur: (1) the
succession has not yet been opened; (2) the object of
the contract forms part of the inheritance; and (3) the
promissor has, with respect to the object, an
expectancy of a right which is purely hereditary in
nature.
- In this case, at the time the deed was executed,
Faustina’s will was not yet probated; the object of the
contract still forms part of the inheritance of his father
from Faustina; and Domingo had a mere inchoate
hereditary right therein.
Death Triggers Succession
Death may be actual or presumed.
In Art. 390, [presumed] death for the purpose of opening
succession is occurred at the end of 10 years from the
disappearance of the absentee; or 5 years if the absentee was
over 75 years old at the time of disappearance.
In Art.390, presumption of death arises at the end of 4 year
period in the following cases:
a. Lost during sea voyage or aeroplane which is
missing
b. Person in the armed forces who has taken part in
war
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c. Person who has been in danger of death under
other circumstances and his existence has not
been known
From the moment of death, the heirs automatically become the
absolute owners of the decedent’s property, rights and
obligations.
However, recognition of ownership of the inheritance by reason
of succession is [in some cases] is not self-executory.
For example, Puno vs Puno Enterprises. In the transfer of
ownership of shares of stock of a corporation, once the
decedent dies, the heirs do not automatically become
stockholders of the corporation and acquire the rights and
privileges of the deceased. The shares of stock must be
transferred to the heirs and such transfer must be recorded to
the stock and transfer books of the corporation
Succession Inter Vivos and Contractual Succession
Art.50, 51 and 52 of the Family Code.
Succession inter vivos is a type of succession that is not
triggered by death, but by annulment or declaration of nullity
of marriage.
Article 50 of the FC mandates the payment of the [presumptive]
legitime of the children following the annulment or the
declaration of nullity of marriage of their parents.
The presumptive legitime will answer for the support of the
children who will be prejudiced of the nullity
Contractual succession is a gratuitous disposition of future
property mortis causa made by one future spouse to the other
in their ante-nuptial contract.
Under Art. 130 of the NCC, future spouses may give each other
1/5 (or 20%) of their present property. While under Article 84 of
the FC, if the future spouses agreed upon a regime other than
absolute community of property, they cannot donate to each
other in their marriage settlements more than 1/5 of their
present property. Any excess- void. The gifts that re given are
embodied in the ante-nuptial contract.
It is governed by Will or by Law
Succession may be governed by:
1. The rules of testamentary succession
2. Rules of Intestate Succession
3. Combination of both
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Succession may be classified as: Art.776

1. Effectivity- inter vivos or mortis causa The inheritance includes all the property, rights and
2. Existence of a will- testamentary, intestate or mixed obligations of a person which are not extinguished by his
3. Transferees- compulsory succession or voluntary death.
succession
Art.781
4. Extent- Universal succession, particular succession
The inheritance of a person includes not only the property
Art. 775
and the transmissible rights and obligations existing at the
In this Title, “decedent” is the general term applied to the time of his death, but also those which have accrued
person whose property is transmitted through succession, thereto since the opening of succession.
whether or not he left a will. If he left a will, he is also called
The Inheritance
the testator.
The inheritance of a person includes his properties and
Art.782
transmissible rights and obligations which are not extinguished
An heir is a person called to the succession either by the by death.
provision of a will or by operation of law. Devisees and
Accruals thereto, while not forming part of the hereditary estate,
legatees are persons to whom gifts of real and personal
are liable for the payment of the claims of the creditors of the
property are respectively given by a will.
decedent.
Heir- person called to succession in the testator’s will, who will
The NIRC recognizes that the accruals to the hereditary estate
receive either the entire or fractional part of the inheritance
after the opening of succession are not included in the estate of
Legatee- a person called to succession in the testator’s will who the decedent for the purpose of computing the estate tax.
will receive a movable property specifically identified by the
Sebastian Lecture:
testator.
Devisee- a person called to succession in the testator’s will who
will receive an immovable property specifically identified by the
testator.
Importance of Distinction
1. Preterition annuls the institution of the heirs, but the
legacies and devises not otherwise inofficious remain
valid. (Art. 854)
2. Invalid disinheritance results in annulment of the
institution of heirs insofar as it prejudices the invalidly
disinherited heir, but the devises and legacies shall be
valid to the extent they do not impair the legitime. (Art.
918)
The legatees and devisees enjoy a preference over the
instituted heirs in the two articles cited.
Example:
Instituted heirs are not given specific property by the testator;
they are given fractional parts of the estate and the actual Condo unit with 20k/ month rental income. It is 9 months since
the death of the decedent.
composition of such aliquot part will depend entirely on the
project partition. 9 x 20k= 180k+ interest
- The 180k + interest is not subject to estate tax. And
under 440, the accessory follows the principal.

Whoever obtains the condo unit shall likewise obtain
the 180k + interest.
Exclusion to the Inheritance
1. Fideicommissary Substitutions
- In this case, the first heir receives the inheritance,
however, he is burdened with the obligation to
preserve and transmit to the second heir the whole or
part of the inheritance. Hence, it does not form part of
the inheritance of the first heir.
2. Reserva Troncal
- In this case the reservable property neither comes nor
falls under the absolute dominion of the ascendant
(reservor) who inherits and receives the same from his
descendant. It becomes his own property only in case
all of the reserves have died, repudiated or otherwise
incapable of receiving the property. (Florentino v.
Florentino)
- A reservor cannot will the reservable property to his or
her heirs of choice (Gonzales v. CFI)
3. Valid Aleatory Contracts
- It is permissible for 2 or more persons to pool their
resources and stipulate a survivorship agreement.
The remaining balance of the investment does not
form part of the estate of the deceased party and his
or her relatives have no successional rights thereto.
Macam vs. Gatmaitan; Rivera vs PBTC;Vitug vs CA
- The parties in these cases executed a survivorship
agreement. They are all co-owners of the properties
since the parties contributed to a common fund.
- All of them are valid aleatory contacts which will not
end up in the PRO.
- NOTE: There must be a contribution for the aleatory
contract to be valid.
Survivorships are valid and binding not only between the parties,
but also against the respective successors, provided that the
operation of such agreement is not violative of the law,
particularly those relating to wills, donations and property
relations between spouses.
Examples of violative effects of a survivorship agreement:
Used to conceal and inofficious donation
Used to transfer property in fraud of creditors
Used to defeat the legitime of compulsory heirs
NOTE: A person may enter into a survivorship agreement with
his/ her spouse, or with any unrelated person, with respect to
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his/ her separate property or any conjugal or community
property.
If upon death he/ she is survived by compulsory heirs, the latter
cannot assail the validity of such agreement except insofar as to
prejudice their legitime.
Art. 777
The right to the succession are transmitted from the
moment of the death of the decedent.
Time of Death of the Decedent
Ownership passes to the heirs at the time of such death. The
physical delivery of the inheritance to the heirs may be
delayed by legal formalities.
It is the precise time on which the following are determined:
a. Law applicable to the validity of the will
b. Composition of the decedent’s assets and valuation,
liabilities and payment
c. Compulsory heirs and their capacity to succeed.
d. Determination of issues relating to preterition.
e. Testamentary capacity of the testator
f. Timeliness of acceptance or repudiation of inheritance.
Consequences of Art.777
1. Death, the defining moment
2. Distiribution subject to the existence of a residual
estate
3. Automatic transmission of the hereditary estate
4. Recognition of ownership by reason of succession
5. Disposal of hereditary share after death of the
decedent
6. Sale of an undivided share of inheritance
7. Court approval for disposition of the hereditary estate
8. Co-ownership during the period of indivision
Bonilla vs Barcena
- While a dead person cannot sue in court, he can be
substituted by his heirs in pursuing the case up to its
completion.
- When the complaint was filed, Fortunata was still alive
and the court acquired jurisdiction over her person. If
she thereafter died, the Rules of Court prescribe a
procedure whereby a party who died during the
pendency of the proceeding can be substituted.

- When a person dies while a claim was filed, his claim
is not extinguished but was rather transmitted to his
heirs.
Salvador vs Sta. Maria
- While the rights to succession are transmitted from the
moment of death of the decedent, Salvador holds that
the right of an heir to his distributive share thereto is
not determinable until all the estate liabilities have
been paid. Until then, the right of an heir to his share
is not demandable, and is subject to the existence of
a residue after payment of debts.
- The case further holds that the proceeds of the sale of
a property forming part of the estate, likewise for part
of the estate.
- It must be noted that the reconveyance court had
jurisdiction over the determination of ownership of the
parcels of land subject matter of the case. Issues of
ownership are beyond the jurisdiction of the probate
court. However, the probate court has exclusive
jurisdiction with respect to the disposition of ay
property pertaining to the estate, as well as the
distribution of the shares of the instituted heirs.
The right of the heirs to specific distributive shares of the
inheritance does not become finally determinable until all the
debts of the estate are paid. The distribution of the estate is
subject to the existence of a residual estate after payment of the
decedent’s debts.
The rights to succession are automatically transmitted to the
heirs from the moment of death of the decedent. The court is
duty-bound to protect these rights from encroachments made or
attempted prior to such judicial declaration. If the administrator
or executor fails or refuses to act to protect the rights of the heirs,
the later may take action in place of such administrator or
executor.
Ramirez vs Baltazar
- The creditors initiated settlement proceedings against
the estate; Diawan, the deputy clerk of court was mad
e administrator of the estate since Ramirez failed to
qualify. Diawan initiated a trial by commissioners
which was allowed by the court without providing
notice to the heirs, heirs in turn was not present since
they had no idea of such proceeding. Diawan was
receiving uncontested evidence from the creditors as
commissioner.
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- GR: Heirs have no legal standing in court upon the
commencement of the estate.
- EXPN: When the administrator fails or refuses to act
for the benefit of the estate, the heirs may commence
such action being the owners of the property.
As a general rule, rights to the succession are transmitted from
the moment of the decedent’s death. However, the recognition
of ownership of the inheritance by reason of succession is no,
in certain cases, self executory
Puno vs Puno Enterprises
- In the transfer of ownership of shares of stock of a
corporation, once the decedent dies, the heirs do not
automatically become stockholders of the corporation
and acquire the rights and privileges of the deceased.
The shares of stock must be transferred to the heirs
and such transfer must be recorded to the stock and
transfer books of the corporation Until the settlement
and division of the estate is effected, the stocks are
held by the executor or administrator, who is entitled
to exercise the rights of the deceased as a stockholder.
Reyes vs RTC
- The SC clarified the relationship between corporation,
on the one hand, and the heirs of a deceased
stockholder, on the other. While the ruling in relation
to Sec 63 of the Corporation Code seems to be correct,
the dictum of the court in relation to the opening of
succession under Art.777 of the NCC, and the
consequences thereof, appear to be debatable. In
addition, the ruling of the SC in relation to the
acquisition or vesting of title to the estate of the
deceased person in favor of the latter’s heirs is clearly
in conflict with the statutory definition of the term
“inheritance” in the Art. 776 of the NCC.
- The statement of the Court to the effect that the
undivided interest of the co-heirs in relation to the
shares forming part of the estate of the deceased
person is “ still inchoate and subject to the outcome of
a settlement proceedings” is rather disturbing as it
clearly runs against explicit dictum of Art. 777.
The right to inherit is not a mere expectancy pending payment
of the outstanding debts of the decedent. What is uncertain is
whether or not the heir will receive anything after the debts are
paid. The “right to inherit” is not synonymous to the “right to
specific distributive share”.

There is no legal bar to a successor (with requisite contracting
capacity) to dispose his hereditary share immediately after such
death, even if the actual extent of such share is not determined
until the subsequent liquidation of the estate.
De Borja vs De Borja
- A compromise agreement was issued by an heir over
the inheritance that she will receive, with the probate
case was pending in court.
- At the time of the decedent’s death, the inheritance
was already transferred to the heirs. The heir can
already exercise the attributed of ownership over such
share which include the right to convey or dispose.
Lee vs RTC
- An heir can sell his right, interest, or participation in
the property under administration. Under Art. 533,
possession of hereditary property is deemed
transmitted to the heir without interruption from the
moment of the death of the decedent. However, an
heir can only alienate such portion of the estate that
may ultimately allotted to him in the division of the
estate by the probate or intestate court after all the
debts have been paid or the devisees or legatees shall
have been given their shares.
Heirs of Sandejas vs Lina
- Court approval is required in any disposition of the
decedent’s estate. A stipulation requiring court
approval does not affect the validity and the effectivity
of the sale as regards the selling heirs.
Santos vs Lumbao
- While an estate remains undivided, the co-owners
each have full ownership of their respective undivided
shares and may therefore alienate, assign or
mortgage them. The co-owner has no right to sell or
alienate a specific or determinate part of the thing
owned in common.
- As a general rule, heirs are bound by contracts
entered into by their predecessors-in-interest. The
heirs cannot escape legal consequences of a
transaction entered into by their predecessors-in-
interest because they have inherited the property
subject to the liability affecting their common ancestor.
Summary of Jurisprudence on Art.777
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Hereditary estate passes from the moment of the decedent’s
death. The heirs cannot be deprived of the rights to the
hereditary estate except by methods provided by law.
The rights of the heirs to specific distributive shares does not
become finally determinable until all the debts of the estate are
paid.
Each co-heir or co-owner may convey the whole or a portion of
his undivided interest in the inheritance. Nonetheless, if any o-
owner sells his or her undivided interest in the property co-
owned, the other co-heirs/co-owners are entitled to exercise the
right of redemption under Art. 1088.
Pending partition, co-heirs may enter into such compromise
agreements as they may deem appropriate even if the
compromise should alter the distribution of the estate as
prescribed by the will of the testator.
Court approval is required in any disposition of specific property
forming part of the decedent’s estate. The judicial approval
cannot adversely affect the substantive rights of heirs to dispose
of their pro indiviso shares in the co-heirship.
Upon the death of a shareholder, his heirs do not automatically
become stockholders of the corporation.
Art.778
Succession may be (1) testamentary; (2) legal or intestate;
or (3) mixed.
Art. 779
Testamentary succession is that which results from the
designation of an heir, made in a will executed in the form
prescribed by law.
Art.780
Mixed succession is that effected party by will and partly by
operation of law.
Types of Succession
Testamentary Succession takes place when the testator dies
with a valid and operative will. It must be both extrinsically valid
(formal requirements) and intrinsically valid (substantive validity).
Intestate succession takes place when a person dies without
a valid and operative will. The distribution of the estate is
controlled by law.

Mixed Succession occurs in the ff cases (1) If he executed a
will but failed to distribute the entirety of his estate [no provision
as how the residual property will be disposed]; (2) Sole
provisions of the will are not considered as testamentary/
property dispositions.; and (3) If any of the beneficiaries is
incapable to accept or enter into inheritance [ no substitution,
representation or accretion].
Testacy is always preferred over intestacy.
Rodriguez vs Borja
- Only after final decision as to the nullity of testate
succession could an intestate succession be instituted
in the form of pre-established action.
- The institution of intestacy proceedings in Rizal may
not thus proceed while the probate of the purported
will of Fr. Rodriguez is still pending.
CHAPTER 2
Testamentary Succession
WILLS
WILLS IN GENERAL
Art.738.
A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree
the disposition of his estate, to take effect after his death.
Characteristics of a will (SUF-PEEF)
1. Statutory right
2. Unilateral Act
3. Formal Act
4. Personal Act
5. Effective Mortis Causa
6. Essentially Ambulatory
7. Free Act
The making of a will is a right conferred solely by law.
It is a unilateral act wherein the consent of the beneficiaries to
the execution of the will is totally unnecessary. The participation
of the beneficiaries is limited to the acceptance or repudiation of
the inheritance.
The testator is required to comply with Articles 804,805 and 806
in the case of a notarial will, and Art. 810 in the case of a
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holographic will. Failure to comply will result in the nullity of the
will (denial of probate).
The making of the will cannot be left to the discretion of a third
person, or accomplished through the instrumentality of an agent
or attorney. What is prohibited is the exercise of judgment or
discretion by third persons in determining the testamentary
dispositions.
It shall take effect only after the testator’s death, subject to the
condition that it is admitted to probate.
A testator may revoke his will at any time before his death, and
any waiver or restriction of this right is void. However, in order
to revoke a will, the testator must possess testamentary capacity
at the time of revocation.
A testator who executes a notarial will must acknowledge before
a notary public that the will is free and voluntary act and deed.
While a holographic will need not be acknowledged before a
notary public, the testator nonetheless must freely give his
consent thereto.
Limitations on the Power of Control
1. Legitime
2. Reservable Property
3. Mistress
4. Fideicommisary Substitution
5. Condition not to Marry
6. Dispocicion Captatoria
7. Dispositions in favor of Incapacitated persons
The statutory reservation of the legitime of the compulsory heirs
is one of the more important limitations on a person’s power of
control over the disposition of his estate.
The reservable property does not form part of the estate of the
deceased ascendant and therefore such ascendant may not
bequeath the reservable property by will.
Public policy does not permit the testator to give any
testamentary benefit to the mistress.
While a testator may provide in his will a fideicommisary
substitution, the law requires that the first and second heirs be
related to each other within the 1st degree of consanguinity;
otherwise the substitution is void.
An institution of an heir that is subject to the absolute condition
not to contract a first marriage is void and deemed not written.
However, a condition not to contract a second marriage is valid
only if imposed on the widow/ widower by the deceased spouse.

Any disposition made upon the condition that the heir shall make
some provision in his will in favor of the testator or any other
person is void.
Testamentary dispositions made in favor of persons disqualified
under Art. 1027 and Art. 1028 are void.
Necessity of Conveyance of Property
A will must convey property; otherwise it is not a will. If the only
disposition of a will:
a. relates to the recognition of an illegitimate child, it is not
a will because the document does not dispose property.
The document need not be probated.
b. Relates to the disinheritance of a compulsory heir, it is
a will because the exclusion of compulsory heir from
the inheritance results in the increase in the shares of
others. A valid disinheritance is an indirect adjudication
of property to one or some of the qualified heirs, for
which reason probate is necessary.
Seangio vs Reyes
- The will entitled “Kasulatan ng pag-aalis mana” only
contains the disinheritance of Alfredo. The SC holds
that the document conforms to the formalities of a
holographic will since it was entirely handwritten,
dated and signed by the testator himself. Moreover,
while the document does not make an affirmative
disposition in itself, the disinheritance of Alfredo, is an
act of disposition in itself because the supposed share
of Alfredo would be disposed in favor of the other heirs.
Art.784
The making of a will is strictly personal act; it cannot be left
in the whole or part to the discretion of a third person, or
accomplished through the instrumentality of an agent
attorney.
Non-Delegability of Testamentary Discretion
The testamentary dispositions in a will must be left entirely to
the discretion of the testator. Only a testator can determine the
proper objects of his bounty. Testamentary dispositions in
breach of proscription are void.
Art.785
The duration or efficacy of the designation of heirs,
devisees or legatees, or the determination of the portions
Page |9
which they are to take, when referred to by name, cannot be
left to the discretion of a third person.
Art.786
The testator may entrust to a third person the distribution
of specific property or sums of money that he may leave in
general to specified classes or causes, and also the
designation of the persons, institutions or establishments
to which such property or sums of money are to be given
or applied.
Strictly a Personal Act
The making of a will is a strictly personal act. The testator is
prohibited from delegating to a 3rd person the determination of:
1. Duration of the designation of heirs, legatees or
devisees
2. Efficacy of their designation
3. Portions of property to be given to such heirs, legatees
and devisees.
NOTE: While the exercise of testamentary discretion is non-
delegable; the implementation of testamentary disposition is
delegable.
The testator cannot delegate to third person the discretion to
determine whether or not a testamentary disposition would be
operative.
Class Institution
The prohibited delegation in Art 785 does not apply when the
testator makes a class institution which is permitted by Art. 786.
The testator may entrust to a 3rd person the distribution of the
property the he left by will to such class or cause.
For example, in Art. 1030 the determination of the specific
person who are to receive under the testamentary disposition
may be delegated by the testator to another person; failing
which the law delegates such function to the executor appointed
by the testator or if there is not executor, to the 3 municipal
officers appointed to by law.
Art. 787
The testator may not make a testamentary disposition in
such manner that another person has to determine whether
or not it is to be operative.
Prohibited delegation

A testator is absolutely prohibited from delegating to a 3rd person
the discretion to determine whether a testamentary disposition
would be operative. By entrusting to a 3rd person the
determination as to whether the testamentary disposition will be
operative, a testator virtually gives the 3rd person the power to
countermand his testamentary directive.
Art. 789
When there is an imperfect description, or when no person
or property exactly answers the description, mistakes and
omissions must be corrected, if the error appears from the
context of the will or from extrinsic evidence, excluding the
oral declaration of the testator as to his intention; and when
an uncertainty arises upon the face of the will, as to the
application of any of its provisions, the testator's intention
is to be ascertained from the words of the will, taking into
consideration the circumstances under which it was made,
excluding such oral declarations.
Defective Testamentary Dispositions
1. Imperfect description of a property to be given to a
particular recipient.
2. Imperfect description of a person who is to receive the
property
3. Uncertainty on the face of the will on the application of
any of its provisions
Classification of Defects
1. Patent Defects
- These are defects that are apparent from a reading of
the will.
- Example, the reader cannot determine who among
the surviving brothers are entitled to receive the
inheritance
2. Latent Defects
- These are defects that ae non-apparent from the
reading of the will.
Remedial measures
Remedies in case of imperfections and ambiguities in the will.
First, examine the will in its entirety and from the other
provisions, make an attempt to correct the mistake, fill the
omission, or clarify the ambiguity of the relevant testamentary
disposition, if it is possible.
P a g e | 10
Second, if the will does not provide relevant information use
extrinsic evidence, excluding the oral declaration of the testator,
in order to ascertain his true intention.
Should any ambiguity arise in the interpretation of any provision
thereof resulting from an error or omission, the same must be
rectified by primary reference to the will. Only upon a failure of
the will to cure the error can extrinsic evidence be used to
correct the same. However, insofar as testimonial evidence is
concerned, the oral declarations of the testator are excluded.
Art. 788
If a testamentary disposition admits of different
interpretations, in case of doubt, that interpretation by
which the disposition is to be operative shall be preferred.
The testator’s will is the supreme law of succession. The true
intention of the testator must be ascertained if a disposition is
ambiguous.
Art 790
The words of a will are to be taken in their ordinary and
grammatical sense, unless a clear intention to use them in
another sense can be gathered, and that other can be
ascertained.
Technical words in a will are to be taken in their technical
sense, unless the context clearly indicates a contrary
intention, or unless it satisfactorily appears that the will
was drawn solely by the testator, and that he was
unacquainted with such technical sense.
De Roma vs CA
- The phrase “sa pamamagitan ng pagbibigay na di na
mababawing muli” merely described the donation as
“irrevocable” and should not be construed as an
express prohibition against collation. The fact that the
donation is irrevocable does not necessarily exempt
the subject from the collation required under Art. 1061.
- The intention to exempt from collation should be
expressly, plainly and unequivocally as an exception
to the general rule announced in Art. 1062.
Art. 791
The words of a will are to receive an interpretation which
will give to every expression some effect, rather than one
which will render any of the expressions inoperative; and
of two modes of interpreting a will, that is to be preferred
which will prevent intestacy.

Dizon-Rivera vs Dizon
- The words of a will are to receive an interpretation
which will give to every expression some effect, rather
than one which will render any of the expressions
inoperative. Of the two projects of partition submitted
by the contending parties, that project which will give
the greatest effect to the testamentary disposition
should be adopted. Thus, where the testatrix
enumerated the specific properties to be given to each
compulsory heir and the testatrix repeatedly used the
words “I bequeath” was interpreted to mean a partition
of the estate by an act mortis causa, rather than as an
attempt on her part to give such properties as devises
to the designated beneficiaries. Accordingly, the
specific properties assigned to each compulsory heir
were deemed to be in full or partial payment of legitime,
rather than a distribution in the nature of devises.
- It is important to note the provision of Art 886 which
reads: “ Legitime is that part of the testator’s property
which he cannot dispose of”. In the will under
consideration, the testatrix disposed of practically her
entire estate by designating a beneficiary for each
property. Necessarily, the testamentary disposition
included that portion of the estate called “legitime”. It
is imperative to reconcile the tenor of Art. 1080 with
Art. 886.
Vda. De Villaflor vs Juico
- The following decision illustrates the application of the
rule that the language of a will must be interpreted in
such a way that every expression therein must be
given some effect. Therefore, an interpretation which
suppresses a provision cannot be adopted if there is
another way of construing the said dispositions.
Art. 792
The invalidity of one of the several dispositions contained
in the will does not result in the invalidity of the other
dispositions, unless it is presumed that the testator would
not have made such dispositions if the first invalid
disposition had not been made.
Separability clause
GR: The nullity of a particular provision will not affect the others
which shall remain valid and enforceable if they can stand
independently of the void provision.
P a g e | 11
EXPN: Unless it is proved that the testator would not have made
the disposition if the prior invalid disposition had not been made.
In sum, a void disposition will not result in the nullity of the other
dispositions unless the valid disposition depend upon the void
disposition.
Balanay, Jr vs Martinez
- The court held that while the court may pass upon the
intrinsic validity of the will because of the apparent
dubious legality of certain provisions, it erred in
declaring the will void because under the code, the
invalidity of several dispositions in a will does not
result in the invalidity of other dispositions as well.
Art. 793
Property acquired after the making of a will shall only pass
thereby, as if the testator had possessed it at the time of
making the will, should it expressly appear by the will that
such was his intention.
Purpose of the Law
Testator’s balance sheet continuously changes over time. Art.
793 recognizes that a testator may, after the execution of the
will, acquire new assets which he could have disposed in his will.
The objective if Art. 793 is to permit a testator to dispose the
property which he may acquire after the making of a will without
having to execute a new will or to amend the existing will. This
procedure minimizes the occurrence of partial intestacy. This
article therefore permits the testator to dispose future property.
General rule and exceptions
As a general rule, a will can only distribute the properties owned
by the testator at the time of the execution of the will. This article
is an exception to this rule, it gives the testator the benefit of
disposing future property should he indicate his intention to do
so.
At best, the testator can make general provision for the
disposition of property which may pertain to him after the
execution of the will.
Sebastian lecture:
2 ways to distribute testate
1. Institution of heirs
- Give portion/ fractions/ percentages
- Downside: partition of estate
 P a g e | 12

2. Legacies/ Devises It may not be easy for the testator to find a competent person
- Name a particular property (real/ personal) who could assist him in complying with Philippine formalities.
Art 794 Law permits a foreign national to execute his will following the
formalities prescribed by Philippine law
Every devise or legacy shall cover all the interest which the
testator could device or bequeath in the property disposed NOTE: The NCC took effect on August 30, 1950
of, unless it clearly appears from the will that he intended
Conflicting rules as to Formal Requirements
to convey a less interest.
General rule As to Place of execution
Filipino a. Philippine law
Every legacy or devise is presumed to convey to the beneficiary Testator b. Law of the country in which they are
the entirety of the testator’s interest in the specific property executed
subject matter thereof. If the testator’s interest is limited to an c. If he is in a foreign country, he is
aliquot part, the legatee/ devisee will acquire the property only authorized to make a will in any
to the extent of the testator’s interest. form established by law of the
country in which he may be; such
Grant of less than full interest will may be probated in the
Philippines
While the general rule is that a testamentary disposition confers R/ NRA a. Law of the country in which they are
upon the beneficiary the totality of the testator’s interest in the Testator executed
property subject matter, a testator may confer a less interest. b. If the alien’s will produces effect in
the Philippines if it conforms with
Grant of greater interest the formalities prescribed by the law
A testator is permitted to convey to a beneficiary an interest in where he resides
the property that exceeds his right thereto. Coflicting rules as to Substantive Requirements

If the testator owns only a part of the thing bequeathed, the Time Law in force at the time of death of the
testator.
legacy or devise shall be understood limited to such part thereof,
As to place It shall be regulated by the national law of the
unless the testator declares that he gives the thing in its entirety.
person whose succession is under
The explicit grant is the testator’s directive that the 3rd party consideration, regardless of the country
interest in the thing be acquired [ by the executor] so that it may where the property may be found.
be given in its entirety to the designated beneficiary.
Art.795. NOTE:
The validity of a will as to its form depends upon the Bellis vs Bellis
observance of the law in force at the time it is made.
- The formal validity of the will depends upon the
Rules as to Formal Requirements observance of the law in force at the time of the
As to time execution. On the other hand, the substantive validity
of the dispositions therein is governed by the laws in
Formal validity is governed by the law in effect at the time of the force at the time of the death of the testator.
execution. The form prescribed by law in the execution of a will
is intended to close the door on bad faith and fraud, to avoid TESTAMENTARY CAPACITY AND INTENT
substitution of wills and testaments, and to guarantee their truth Art. 796.
and authenticity. (Lee vs Tambago)
All persons who are not expressly prohibited by law may
As to place make a valid will
A Filipino testator living abroad or temporarily living outside the Art. 797.
Philippines is not required to comply with Philippine formalities.

Persons of either sex under eighteen years of age cannot
make a will.
Art. 798.
In order to make a will, it is essential that the testator be of
sound mind at the time of its execution.
Elements of Testamentary Capacity (N2AS)
Natural person
Atleast 18 years old at the time of execution
Sound mind at the time of execution
Not expressly prohibited by law from making a will.
Age Requirement
A will executed by the testator on the eve of his 18th birthday is
void.
Capacity to Act
It is the power of the person to perform an act with legal effect.
It is conferred by law upon reaching the age of majority.
NOTE: Capacity to act is not an element of testamentary
capacity
Under Art. 38, Minority, insanity, imbecility, the state of being a
deaf-mute are mere restrictions on capacity to act.
People under civil interdiction and/or prodigality are
incapacitated only to acts inter vivos., not mortis causa; thus,
they may validly execute a will.
Art. 799.
To be of sound mind, it is not necessary that the testator
be in the full possession of all his reasoning faculties, or
that his mind be wholly unbroken, unimpaired or
unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able to at the time of
making the will to know the nature of the estate to be
disposed of, the proper objects of his bounty, and the
character of the testamentary act.
Soundness of Mind
Soundness of mind merely raises a red flag.
Things that a testator should know at the time of the execution
of the will.
P a g e | 13
1. The testator should know the components of his PRO
2. He should know the persons who has expectation in
the participation in the estate.
3. He is conscious that the document will take effect
mortis causa (after his death); and
4. The disposition is gratuitous in nature.
De Guzman vs Intestate estate of Francisco Benitez
- The case does not definitively settle the issue of
testamentary capacity insofar as it involves
soundness of the mind.
- However, the medical record of the testator should be
noted as it influenced to a great extent the factual
findings of the probate court and the affirmance of
such findings by the CA.
Baltazar vs Laxa
- Forgetfulness does not equate to unsound mind. The
presumption that Pacencia was of sound mind was
not disproved.
- There was no showing that Pacencia was publicly
known to be insane one month or less before making
of the will. Furthermore, Pacencis was aware of the
nature of her estate to be disposed of, the proper
objects of her bounty and the character of the
testamentary act. Thus, Pacencia was of sound mind
at the time of the execution of the will and was aware
since she even included the customs of her faith to be
observed upon death.
Art 800.
The law presumes that every person is of sound mind, in
the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind
at the time of making his dispositions is on the person who
opposes the probate of the will; but if the testator, one
month, or less, before making his will was publicly known
to be insane, the person who maintains the validity of the
will must prove that the testator made it during a lucid
interval.
Presumption of sanity
The law presumes that the testator is of sound mind at the time
of execution of his will. However, this presumption may be
controverted by competent evidence
Exceptions to the presumption of sanity

1. One month or less, before the execution of the will, the
testator was publicly known to be insane.
2. There’s a prior judicial declaration of testator’s insanity
(unless the declaration was set aside prior the
execution of the will)
3. Prior judicial appointment of a guardian over the
person/ property of a person b reason of having found
to be insane.
In the abovementioned cases, the party who asserts the validity
of the will has the burden of proving that the testator was either
in a lucid interval or has regained sanity.
Art 801.
Supervening incapacity does not invalidate an effective will,
nor is the will of an incapable validated by the supervening
of capacity.
Determination of Testamentary Capacity
The testator’s testamentary capacity is determined at the time
of the execution of the will. At this time the testator must be at
least 18 years old and must possess sound mind.
If the testator does not possess testamentary capacity at the
time of the execution of the will, the gaining or regaining capacity
at some future time will not validate the void will.
Art. 802.
A married woman may make a will without the consent of
her husband, and without the authority of the court.
Art. 803.
A married woman may dispose by will of all her separate
property as well as her share of the conjugal partnership or
absolute community property.
FORMS OF WILLS
NOTE: Memorize Art. 804,805 and 806
Art. 804.
Every will must be in writing and executed in a language or
dialect known to the testator
Art. 805.
P a g e | 14
Every will, other than a holographic will must be subscribed
at the end thereof by the testator himself or by the testator’s
name written by some other person in his presence, and by
his express direction, and attested and subscribed by three
or more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
signed, aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each
page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other
person to write his name, under his express direction, in
the presence of instrumental witness, and the latter
witnessed and signed the will and all the pages thereof in
the presence of the testator and one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
Art. 806.
Every will must be acknowledged before a notary public by
the testator and the witnesses. The notary shall not be
required to retain a copy of the will, or file another with the
office of the Clerk of Court.
Forms of wills
There are two types of wills: notarial and holographic
In a notarial will, the formalities are governed by Art.
804,805,806. Additional formalities are required of testators
suffering from certain disabilities. Art. 807 (deaf or deaf-mute),
Art. 808 (blind).
The form of a holographic will is prescribed in Art. 810. Note that
such type of will must also conform with the requirements under
Art. 804.
Purpose of the Formalities
The object of solemnities surrounding the execution of the wills
is to close the door on bad faith and fraud, to avoid substitution
of wills and testaments, and to guarantee their truth and
authenticity. (Lee vs Tambago)

In a probate court, the examination is limited to the
determination of the genuineness and authenticity of a will.
The formalities required for the execution of he will must be
strictly complied (expn. Few minor lapses which can be
corrected from an examination of the will itself)
Parts of a will
1. Testamentary Disposition
2. Attestation clause
3. Notary Public
The testamentary disposition should be in the language of the
testator.
The attestation clause must indicate the (1) number of pages (2)
that the signing was made in the presence of the witnesses and
the testator; and (3) signed by 3 witnesses.
The notary public confirm that the testator made the document
freely and voluntarily.
Formal requisites of a notarial will
1. It must be in writing
2. Written in a language or dialect known to the testator
3. Testator must sign at the end of the will
4. A will must be attested and subscribed by three
credible witnesses
5. Testator ad witnesses must sign in the presence of one
another
6. Testator and witnesses must sign on the left margin of
each page
7. Each page of the will must be numbered correlatively
8. The will must contain an attestation clause.
9. The will must be acknowledged before a notary public.
A will must be in writing
It must be written in order to preserve the document. A will may
be handwritten, typewritten or printed.
Specific objectives of the law requiring a written instrument
a. To evidence compliance with the formalities prescribed
by law
b. The serve as exclusive proof of its contents, avoiding a
reliance on the frail memory of man.
The written instrument must be presented to the court during
probate proceedings so that
P a g e | 15
a. A visual inspection could determine the compliance
with the required formalities
b. The probate court could have an opportunity to
examine the testamentary disposition to determine
compliance with substantive law.
In a language or dialect known the testator
To ensure that the testator is able to understand the contents of
the will without being assisted by another person. A testator is
not permitted to rely on translation of a will that is written in a
dialect or language that is foreign to him.
Writing a will is a personal act. The testator may be defrauded
in case he merely relies on the interpretation of a third person.
It is not necessary to include a statement in the will confirming
that it is written in a language or dialect known to the testator.
This fact may be established by extrinsic evidence. (Lopez vs
Liboro)
Suroza vs Honrado
- Every will must be in writing and executed in language
known to the testator. In this case, the testatrix was
proved to be illiterate. However, her alleged notarial
will was written in English, which in the opening
paragraph of the will, was supposedly a language
known to her. The contradiction of the concluding
paragraph of the will clearly indicated the nullity of the
purported will. The procedural lapse of the counsel for
oppositor must likewise be noted.
- The will is void because of the mandatory provision of
Art. 804 that every will must be executed in a language
or dialect known to the testator.
Reyes vs Vda. De Vidal
- Every will must be executed in a language known to
the testator. While this requirement is mandatory and,
as a rule, must be proved during probate proceedings,
a failure to introduce evidence in this respect does not
necessarily justify the denial of probate. Under certain
conditions, knowledge of the language in which the
will was written may be presumed.
- In this case, the probative value of the testimony of the
instrumental witnesses must be noted, particularly
when such testimony is sought to be controverted by
the testimony of an expert witness.
The testator must sign at the end of the will

The testator is required to affix his signature at the end of the
will in order to indicate the logical end thereof; in order to prevent
the insertion of unauthorized dispositions.
If the testator signed at any place other than at the end of the
will or if the testator inserted additional testamentary
dispositions after his signature, or otherwise acquiesced in the
insertion of additional testamentary dispositions by another
person—the will becomes an absolute nullity. Such additional
disposition invalidates the entire will and probate should be
denied.
If a forger or unauthorized person without the knowledge,
consent or acquiescence of the testator should insert additional
dispositions, the unauthorized insertions should be disregarded
and the validity of the will is not impaired.
The requirement that it must be signed at the logical end of the
will does not apply to the instrumental witnesses who may affix
their subscribing signatures elsewhere in the will, provided that
such signatures were in fact affixed on each page of the will.
The reason is that the signatures of the witnesses are meant to
identify the pages of the will and to prevent the fraudulent
substitution thereof.
Testator need not affix his full signature. Customary signature is
sufficient. A thumb mark would be sufficient.
Across allegedly affixed by the testator on the execution page of
the will was insufficient compliance with the requirement, absent
a showing that the cross represented his usual signature.
(Garcia vs Lacuesta)
Facsimile signature is an exact copy or reproduction of an
original signature. Because of the unmitigated risk of an
unauthorized stamping of a facsimile signature, a court is not
likely to give its stamp of approval.
The law permits a testator to designate a third person to sign
the will on his behalf. 3 requisites:
1. The testator makes an express directive to the third
person
2. The third person should write the name of the testator
and not his own name.
3. The third person writes the testator’s name in the will
in the presence of the testator and of each of the
instrumental witnesses.
In this manner, an illiterate person may execute a notarial will.
P a g e | 16
If the third person manually wrote his own name in the will, the
requirement is not complied with, the will is void and probate
should be denied.
Taboada vs Rosal
- Art. 805 required that the testator should sign at the
end of the will. This requirement does not apply to the
subscribing witnesses, who may sign in any other part
of each page of the will. The duty of the witnesses to
subscribe is substantially complied with by any such
signature. The failure of the attestation clause to
indicate the number of pages upon which the will is
written, as a rule, a fatal defect. However, where the
notarial acknowledgment does indicate the number of
pages of the will, the same conforms to an actual
account of the pages, deficiency is cured. A reference
to Art. 809 in this regard is appropriate.
Balonan vs Abellana
- Art. 805 prescribes the manner in which the will must
be signed by the testator, i.e., “subscribed at the end
thereof by the testator himself, or by the testator’s
name written by some other person in his presence
and by his express direction. This case confirms that
this requirement is mandatory, and failure to comply
therewith is a fatal defect. It is not important that the
person to whom the function of writing the testator’s
name indicates or writes his own name. But it is
imperative that this individual should write the name of
the testator. The case gives 2 alternate ways of
complying with the statutory requirement.
A will must be attested and subscribed by 3 credible
witnesses
The 2 specific functions of the witnesses are (a) attesting the
due execution of the will, and (b) subscribing thereto. (Taboada
vs Rosal)
Attestation consists in witnessing the testator’s execution of the
will in order to see and take note mentally that those things are
done which the statute requires for the execution of a will and
that the signature of the testator exists as a fact. It confirms the
compliance with certain procedural requirements.
Subscription is the signing of the witness’ names upon the
same paper for the purpose of identification of such paper. It
identifies the authentic pages of the will.

Where the attestation clause is not signed by the witnesses at
the time of the execution of the will, it would invalidate the will
as it would be easy to add the clause on a subsequent occasion
in the absence of the testator and the witnesses. (Caneda vs
CA)
Icasiano vs Icasiano
- Instrumental witnesses should sign the will on every
page thereof, except the last, on the left margin. If a
witness through oversight failed to sign one of the
pages of the will, but otherwise signed all the pages of
a duplicate original thereof, the formal defect in the
original copy is cured and the will may be admitted to
probate.
Art. 805 requires that a notarial will be witnessed by three or
more credible witnesses. “Credible” means worthy of belief.
Credibility cannot be legislated.
Competence on the other hand is a matter determined by law.
Art. 820 enumerates the qualifications. The combined
application of Art. 820 and Art. 821 determines the competence
of a witness to a notarial will.
The testator and witnesses must sign in the presence of
one another
A person requested by the testator to affix the testator’s name
in the will, must likewise sign the will in the presence of the
testator and the witnesses.
Nera vs Rimando
- Art. 805 requires that the will must be signed by the
testator and the witnesses in the presence of one
another. The case provides the test of presence. It is
not essential that the testator and the witnesses
should look at the paper purporting to be the will of the
testator at the time each of them affix their signatures.
It is sufficient that each of them be physically present
at the place where the execution will take place and
that they be in such position with respect to each one,
that by merely casting their eyes in the proper
direction, they would have been able to see each on
affix his signature on the will without any physical
obstruction.
The testator and witnesses must sign on the left margin of
each page
P a g e | 17
The location of the subscribing signature of the witnesses is not
material, for as long as the subscribing signatures are complete,
for this would constitute substantial compliance with the
requirement that the witnesses should subscribe the will.
(Taboada vs Rosal)
The purpose of the marginal signature is to prevent the
substitution of pages.
Each page must be numbered correlatively
The purpose of the law in such requirement is to safeguard
against possible insertion or suppression of one or some of its
pages. Pagination facilitates the discovery of both missing
pages and extra pages inserted in the will. Pagination serves to
confirm the accuracy of the attestation clause insofar as it states
the number of pages used upon which the will was written.
The location of the page number is not material for as long as
there is pagination. Pagination need not be in letters and may in
fact be in Arabic numerals. If the first page is not numbered,
omission shall not necessarily invalidate the will.
Lopez vs Liboro
- Art 805 required that every page of the will be
numbered correlatively in letters. The failure to affix
the page number of the first page is not necessarily a
fatal defect. The pagination requirement admits of a
liberal interpretation, particularly if the purpose of the
law has been satisfied.
- The will need not state that the language used therein
is known to the testator. Knowledge by the testator of
the language used in the will may be proved by
extrinsic evidence, and may, under certain conditions,
even be inferred by the probate court.
The will must contain an attestation clause
An attestation clause refers to that part of a will whereby the
witness certify 3 things.
1. The number of pages used upon which he will was
written
2. That the testator signed the will or caused another to
write his name
3. That the testator and the witness signed the will in the
presence of one another.
The witnesses execute the attestation clause for the purpose of
preserving in written form a record of certain actions taken

during execution of a will, so that in case of failure of memory or
other casualty, such facts may still be proved. (Caneda vs CA)
The failure of attestation clause to state the number of pages
used upon which the will is written is not necessarily a fatal
defect. The will may yet be admitted to probate if the actual
number of pages of the will is readily discernible from the will
and one need not adduce extrinsic evidence to establish that
fact.
Error in the attestation clause relating to the actual number of
pages used in the execution of the will is not necessarily a fatal
error.
Samaniego-Celada vs Abena
- The case holds that an error in the number of pages
of the will as stated in the attestation cause is not
material to invalidate the will.
Lopez vs Lopez
- The attestation must state the number of pages used
upon which the will is written. The purpose of the law
is to safeguard against possible interpolation or
omission of one or some of its pages and prevent any
increase or decrease in the pages.
- Comment of Justice Reyes: The rule must be limited
to disregarding those defects that can ab supplied by
an examination of the will itself; whether all pages are
consecutively numbered; whether the signature
appears in each and every page; whether the
subscribing witnesses are three or the will was
notarized… The total number of pages and whether
all the persons required to sign did so in the presence
of each other must substantially appear in the
attestation clause, being the only check against
perjury in the probate proceedings.
Estate of Abada vs Abaja
- Failure of the attestation clause to state the number of
attesting witnesses is not a fatal error.
- Abada’s will clearly shows 4 signatures: that of Adaba
and 3 other persons. It is reasonable to conclude that
there are 3 witnesses to the will.
Garcia vs Lacuesta
- The lawyer after writing the name of the testator, put
the following notation: “a ruego del testador”. However,
the attestation clause gave a different account of the
P a g e | 18
surrounding circumstances in the execution of the will,
in that the attesting witnesses stated that the testator
signed the will. The resulting conflict between the
signature page of the will and the attestation clause
resulted in the denial of probate because the
attestation clause failed to state that the testator’s
name was written by another person at the express
direction of the testator and the attesting witnesses.
Cagro vs Cagro
- The attesting signatures of the witnesses must be
affixed at the bottom of the attestation clause. If
signed elsewhere, the attestation clause is void- and
so is the will.
The instrumental witnesses are expected to take mental note of
the proceedings during the execution of the will. The witnesses
are required to include in the attestation clause certain
formalities that were supposedly observed.
While the witnesses may have signed the attestation clause,
they are not barred from subsequently contradicting the tenor of
the attestation clause or from disowning the same.
Azuela vs CA
- Of note is the decision of RTC which admitted the will
to probate notwithstanding the defects thereof ( nor
signature of witnesses at the bottom of the attestation
clause, no signature of the testator on the left margin
of the second page of the will, the failure of the
attestation clause to state the number of pages used
upon which the will is written, and the lack of
acknowledgment). As to the missing signature of the
witnesses at the bottom of the attestation clause, the
RTC ignored the ruling in Cagro vs Cagro. As regards
to the missing number of pages in the attestation
clause the RTC invoked the doctrine of liberal
interpretation but conveniently ignored the conditions
laid down in the case of Rodelas. As regards the
missing acknowledgment, the RTC ignored the ruling
in Garcia vs Gatchalian. It can well be said that the
decision of the RTC is “one for the books”
- This case also highlights the fundamental difference
between a jurat and an acknowledgment, and based
on the distinction, the Court held that a notarial will that
is not acknowledged by a notary public is void, even if
it was sworn before a notary public.
Vda. De Ramos vs CA

- The law requires at least 3 attesting witnesses to a
notarial will. The witnesses shall be called upon,
during probate, to recount the incidents which
occurred thereat. To a large extent, admission to or
denial of probate depends on the testimony of these
instrumental witnesses. However, if contrary to
expectation, these witnesses, or some of them, should
testify against the formal validity of the will, the
proponent of the will may use other evidence, direct or
circumstantial, to establish compliance with the
formalities prescribed by law. A will is not necessarily
void because the witnesses declared against its
validity.
The will must be acknowledged before a notary public
An acknowledgment is the act of one who has executed a deed
in going before some competent officer and declaring it to be his
act or deed.
The law does not require that the testator and the witnesses
acknowledge the will before the notary public at the same time.
If any of the testator and the witnesses failed to acknowledge
the will before a notary public, the notarial will is void.
3 components of a notarial will:
1. Testamentary dispositions
2. The attestation of the witnesses
3. Notarial acknowledgment
The first part is a personal act to the testator which he must
declare before a notary public as his free and voluntary act and
deed.
The second is a certification confirming the following facts:
1. Actual number of pages used upon which the will was
written
2. The testator signed the will and every page thereof’ or
caused some other person to sign in his behalf.
3. The instrumental witnesses witnessed and signed the
will and all the pages thereof in the presence of the
testator and one another.
The failure of the witnesses to declare before the notary public
their participation in the execution of the notarial will as narrated
in the attestation clause is a fatal omission which results in the
nullity of the notarial will.
Garcia vs Gatchalian
P a g e | 19
- In this case, the will was acknowledged before a
notary public by the testator but not by the
instrumental witnesses. The will was validly
disallowed because it did not comply with the
requirements and the same may not be probated. It
was held that compliance with the requirements of Art
806 to the effect that a will must be acknowledged
before a notary public by the testator and also by the
witnesses is indispensable for its validity.
Neither Art 805 or 806 required the notary public to be present
in person to witness the execution of the will. Note however, that
under Art 808, the notary public is required to read the will to the
blind testator. In this case, his presence in the execution of the
will is mandatory.
Disqualifications of a Notary Public
a. He must be duly commissioned
b. He must not be an instrumental witness.
Guerrero vs Bihis
- The case defines “acknowledgment” ad the
competent officer before whom it should be made in
the execution of a notarial will. The case further
explains the reason for the requirement of Art. 806
and the function of the acknowledgment The case
holds that a notarial will acknowledged before a notary
public outside the latter’s territorial jurisdiction is void.
Effectively, the will is not acknowledged as required
by Art. 806.
Cruz vs Villasor
- Art. 806 requires that the testator must acknowledge
the will before a notary public. The case involves a
situation where one of the three witnesses to the will
was the same person who notarized the same. By
reason thereof, the SC disallowed the will for the
reasons stated hereunder.
- The witness cannot simultaneously be the notary
public before whom the will shall be acknowledged.
Art 807
If the testator be deaf, or a deaf-mute, he must personally
read the will, if able to do so; otherwise, he shall designate
two persons to read it and communicate to him, in some
practicable manner, the contents thereof.

The special formalities in Art. 807 and 808 are intended to
compensate or otherwise make up for the disability of the
testator.
Art. 807 makes a distinction between a literate and illiterate
testator who is deaf or deaf-mute. The objective of the law is to
ensure that he understands the contents of his will.
If the deaf or deaf-mute testator is illiterate, the law requires him
to designate a person of his choice to read the will and to
communicate to him the contents thereof in some practicable
manner. The objective of the law is clear, the testator must
somehow acquire an understanding of the contents of the will.
The testator is given a free hand in selecting the person who will
read the will because the person so selected must be able to
communicate to the testator the contents of the will.
Art 808.
If the testator is blind, the will shall be read to him twice;
once, by one of the subscribing witnesses, and again, by
the notary public before whom the will is acknowledged.
The additional formality if meant to give additional protection to
the testator. It is to make the provisions of the will known to the
testator, so that he may able to object thereto if they are not in
accordance with his wishes. This is the only instance when a
notary public is required to participate in the actual execution of
the will.
Garcia vs Vasquez
- Art. 808 prescribes an additional formality in the case
of a blind testator. The case held that if a testator’s
vision does not permit him to read the document, even
if he can see distant object, the testator is deemed
blind for the purpose of requiring the observance of
the additional formality prescribed in Art. 808.
- Justice Reyes opined that if the testator is blind or
incapable of reading the will (illiterate) the requirement
of reading must be complied with in order to enable
the testator to object to provisions which are not in
accordance to his wishes. While the opinion seems
reasonable, Art. 808 makes specific reference to a
blind person. An illiterate person with good vision was
not mentioned in the law. There is serious doubt,
therefore, if the provision of Art. 808 is applicable to
an illiterate testator.
Alvarado vs Gaviola
P a g e | 20
- The case confirms that a person unable to read the
draft of his will, either because of poor, defective or
blurred eyesight must be considered blind for the
purpose of compliance with the additional formalities
prescribed in Art. 808. In addition, the Court confirms
that inability to read by reason of illiteracy is included
within the broader concept of “blindness” for the
purpose of the same article.
Art 809.
In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and
imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved
that the will was in fact executed and attested in substantial
compliance with all the requirements of article 805.
The disenfranchisement of the testator would be unjust if the
same resulted from causes which are not attributable to his fault
or negligence, but to circumstances beyond, his control, or to
the fault, negligence or ignorance of the assisting counsel or
witnesses or both.
Requisites of the Doctrine of Liberal Interpretation
1. It applies solely to defects and imperfections in the
form of language of the attestation clause. The doctrine
cannot be used to address defects or imperfections in
the body of the will or the notarial acknowledgment.
2. Bad faith, forgery, fraud, undue and improper pressure
and influence must be ruled out insofar as the
execution of the attestation clause is concerned.
3. Defects and imperfections in the form of language of
the attestation clause shall be ignored and will not
cause the nullity of the will, if it is proved that the will
was in fact executed and attested in substantia
compliance with Art. 805.
4. The doctrine of liberal interpretation cannot be invoked
in a holographic will simply because this will does not
have an attestation clause.
Gil vs Vda. De Murciano
- Art. 809 enunciates the doctrine of liberal
interpretation. Accordingly, in the absence of bad faith,
forgery, fraud or undue and improper influence and
pressure, defects or imperfections in the form of
attestation clause or in the language used therein
shall not render the will invalid, if it is proved that the
will was in fact executed and attested in substantial

compliance with the requisites of law. The case
involves an attestation clause which omitted to state
that the testator signed the will in the presence of the
witnesses. Such fact was, however, stated by the
testator in the body of the will. There is no question as
to the genuineness of the will, as even the opponents
concede that issue.
- It is most unfortunate that there was a sharp division
in the court. In the original decision, 6 voted for its
nullity and 5 for its validity. In resolving the motion for
reconsideration, 6 members voted for the validity of
the will, 5 against it. The issue remained controversial
and far from being resolved.
Caneda vs CA
- The court affirms the ruling in Gil vs Murciano.
However, the results of these 2 cases are divergent.
Gil allowed the probate of the will, whereas Caneda
disallowed the will. The factual difference between
these 2 cases should be noted.
Art 810.
A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be
witnessed.
Purpose of writing a will, in general
The objective of the testator is to take control of or otherwise
determine the distribution in accordance with his distribution
plan. If the intention is to merely divide his estate equally among
other heirs, there would be no need to execute a will, this will be
achieved by the law on intestacy.
By executing a will he accomplished 2 things:
1. Designate voluntary heirs, legatees and devisees
2. Able to distribute his estate among his designated heirs
in uneven shares.
Objective of a holographic will
The distribution of the hereditary estate can be a sensitive
matter, and for this reason, the contents of the will must be kept
secret during the testator’s lifetime to avoid bickering among the
heirs and/ or ill-feeling towards the testator by the heirs who are
less-favored in the will.
Advantages and Disadvantages of a Holographic will
P a g e | 21
Advantages
It is a simple document that can be executed without the
assistance of a lawyer. The testator is able to keep secret its
execution and keep confidential its contents.
Disadvantages
Simplicity makes it susceptible to forgery, it has no other safety
feature aside from the handwriting. The secrecy in its execution
does not give any assurance that the testator executed the will
freely.
Requisites of a Holographic will
1. Entirely handwritten
2. Date of a holographic will
A holographic will must be entirely written, dated and signed by
the hand of the testator. It cannot be executed in any other way.
Facsimile or electronic signature is not sufficient.
It must be written in the language known to the testator (Roxas
vs De Jesus). Nonetheless, knowledge of the language in which
the will is written may be presumed because the testator is
required to write the entire holographic will by his hand.
The testator must possess testamentary capacity. It is a
condition sine qua non to the execution of a will.
Entirely handwritten
A holographic will consists of 3 parts: date, testamentary
dispositions and signature. All these should be in the
handwriting of the testator. If any of the essential parts is not in
the handwriting of the testator, the same is void.
If certain portion of the will is not in handwriting of the testator,
an examination of such portion should be made. If such portion
is not an essential part of the holographic will, the holographic
will should not be invalidated.
Date of a holographic will
The date of a holographic will is presumably the true date of
execution. The presumption is disputable.
The date of a holographic will determines 2 things: (1) the
testamentary capacity of the testator at or about the time of the
execution of the will ; and (2) the law applicable to the formal
validity of the holographic will.
The date is also helpful in determining which of the several wills
represent the true will of the testator. If the testator executed
several ills, and if there are inconsistencies in the dispositions of

these various wills, the dispositions of the most recent will shall
prevail over the dispositions of the prior ones.
Incomplete date
Roxas vs De Jesus Jr
- The date of the holographic will need not be a
complete calendar date. An incomplete date should
be sufficient reference date to establish testamentary
capacity of the testator at the time of the execution of
the will. The reference to an event which occurred on
a definite date, or any evet which is celebrated or
commemorated on a particular date would be
sufficient for the execution of a valid holographic will.
Sebastian Lecture:
810 did not require that the date of the holographic will be the
exact date of the execution.
It is sufficient that “date” can determine: (1) the testator’s age;
(2) testamentary capacity; and (3) law established
Ante-dating or post- dating not necessarily makes the will void,
provided it was not done fraudulently.
Labrador vs CA
- The required date which must be indicated in a
holographic will is substantially complied with if the
date were incorporated as part of the body of the will
(under the testamentary dispositions).
Art.811
On the probate of a holographic will, it shall be necessary
that at least one witness who know the handwriting and
signature of the testator explicitly declare that the will and
the signature are in the handwriting of the testator. If the
will contested, at least three of such witnesses shall be
required.
If the absence of any competent witness referred to in the
preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to.
Proving the Authenticity of a Holographic will
The genuineness and authenticity of a holographic will is totally
dependent on the genuineness of the testator’s handwriting. In
holographic wills, the participation of witnesses and the notary
public is not required.
P a g e | 22
If the probate is uncontested, it shall be sufficient that one
witness who knows the handwriting and signature of the testator
declares that the entirety of the will is in the handwriting of the
testator. It is not enough that the witness should testify that he
or she is “familiar” with the handwriting and signature of the
testator. The law requires knowledge not only of the signature,
but also of the handwriting of the testator.
If the probate is contested, Art. 811 provides that at least 3 such
witnesses shall make the required declaration. However, in the
case of Azaola v Singson (1960),the 3 witness rule is directory
and not mandatory. This ruling was subsequently overturned by
Justice Pardo which ruled that the 3 witness rule is mandatory
(Codoy vs Calugay).
Whether one witness is enough or three witnesses are required,
the probate court must be satisfied that the testimony of the
witness/es is/are sufficient to establish the genuineness of the
handwriting and signature of the testator.
Sebastian Lecture:
Codoy vs Calugay is WRONG. 3 witness rule should not be
mandatory
What must the witness say?
1. They know (not familiar) the handwriting and signature
of the testator.
2. That the will and signature are in the handwriting of the
testator.
Art 812.
In holographic wills, the dispositions of the testator written
below his signature must be dated and signed by him in
order to make them valid as testamentary dispositions.
Signature at the End of the Holographic will
As an indicator of the logical end, the testator must affix his
signature at the end of the last testamentary disposition. If an
additional disposition is found after, a presumption arises that
the same is unauthorized.
It shall not be considered a testamentary disposition unless it is
entirely written, dated and signed by the hand of the testator.
Compared to a Notarial will
Notarial will Holographic will
-Any additional testamentary -testator may add a new
disposition appearing after disposition after his signature
the signature of the testator provided the same is entirely

makes the entire will void. written, dated and signed by
The only way to add new the testator.
disposition is to execute a -holographic will is presented
codicil as a work in progress in that
the testator, from time to time
until his death may add new
provisions.
Art 813.
When a number of dispositions appearing in a holographic
will are signed without being dated, and the last disposition
has a signature and a date, such date validates the
dispositions preceding it, whatever be the time of prior
dispositions.
Validating Date
Under Art. 813, the testator wrote and signed various
testamentary dispositions but omitted to put a date on some or
all of the intermediate dispositions. The various testamentary
dispositions shall be construed as a single holographic will and
the date appearing on the last disposition validates all prior
dispositions.
The last testamentary disposition which is both dated and
signed by the testatrix validates all prior dispositions which are
not dated.
Art 814.
In case of any insertion, cancellation, erasure or alteration
in a holographic will, the testator must authenticate the
same by his full signature.
Customary signature sufficient
The testator’s authentication of insertions, cancellations,
erasures or alterations of testamentary dispositions indicates his
conformity thereto and authenticity of the same. The law
requires a full signature, customary signature should be
sufficient.
Kalaw vs Relova
- Art. 814 requires the authentication of any alteration
in a holographic will. The failure to authenticate such
alterations results in the invalidity of the desired
change. However, where the testator cancelled the
name of the original heir, and substituted in lieu
thereof another name, without the requisite
authentication, the institution of the new heir is
P a g e | 23
inoperative by reason of a failure to comply with the
requirement of Art. 814. The court ruled that the nullity
of the alteration should not result in the effectivity of
the original disposition. The intention of the testatrix
has become indeterminable.
Art 813 and 814 do not form part of formal requisites of a
valid will
During a probate proceeding, the court’s area of inquiry is limited
to:
1. The testamentary capacity of the testator
2. The formal validity of the will
3. Identification of the will as that of the testator, and
4. That the testator freely executed
Matters under Art 813 and 814 only voids a particular
testamentary disposition.
Ajero vs CA
- The Court upholds the proposition that Art. 813 and
814 do not form part of the requisites for formal or
extrinsic validity of a holographic will. Thus, a failure
on the part of the testator to observe the requirements
of Art. 813 and 814 does not justify the disallowance
of the will. However, the relevant provisions may be
disallowed. The court further stresses that proof of
compliance with the requirements of Art 813 and 814
cannot ordinarily be dealt with during probate proper,
because at this stage, the court’s area of inquiry
should, in general be limited to the following issues: (1)
whether the instrument submitted is indeed, the
decedents last will and testament; (2) whether the will
was executed in accordance with the formalities
prescribed by law; (3) whether the decedent had
testamentary capacity at the time the will was
executed; and (4)whether the execution of the will
andits sgning were voluntary acts of the decedent.
Art 815.
When a Filipino is in a foreign country, he is authorized to
make a will in any of the forms established by the law of the
country in which he may be. Such will may be probated in
the Philippines. (n)
Art 816.
The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the
 P a g e | 24

law of the place in which he resides, or according to the Joint wills are prohibited by law because one of the joint
formalities observed in his country, or in conformity with testators might influence the other. The law recognizes the risk
those which this Code prescribes. that the dominant testator could exert undue influence on the
other.
Art 817.
Joint wills (assuming they are permitted) require submission to
A will made in the Philippines by a citizen or subject of
probate. As probate would be conclusive with respect to the
another country, which is executed in accordance with the testamentary capacity of one of the testator and the due
law of the country of which he is a citizen or subject, and
execution of the will, the probate of joint will cannot be
which might be proved and allowed by the law of his own
conclusive to the testamentary capacity of the other.
country, shall have the same effect as if executed according
to the laws of the Philippines. Erroneous order of the probate court in admitting the probate of
a joint will, will attain finality. Such erroneous final order
Art 815, 816 and 817 are the conflict rules pertaining to the
admitting a joint will to probate can no longer be re-opened.
formal validity of a will.
De La Cerna vs Rebaca- Potot
Vda. De Perez vs Tolete
- Art. 818 prohibits the execution of joint wills whether
- This case outlines the procedure for the reprobate of
they be for reciprocal benefit of the testators, or for the
a will that was executed and probated in accordance
benefit of a third person. However, it must be noted
with foreign law.
that if a probate court erroneously admitted a joint will
- The evidence necessary for the reprobate or
to probate, the error thus committed would be an error
allowance of wills which have been probated outside
of law and not of jurisdiction. Therefore, such an error
the Philippines are as follows:
must be corrected by appeal; failing which the
(1) The due execution of the will in accordance with
erroneous decision would become final.
foreign laws
(2) The testator has his domicile in the foreign Art 819.
country and not in the Philippines
Wills, prohibited by the preceding article, executed by
(3) The will has been admitted to probate in such
Filipinos in a foreign country shall not be valid in the
country
Philippines, even though authorized by the laws of the
(4) The fact that the foreign tribunal is a probate court
country where they may have been executed.
(5) The laws of the foreign country on procedure and
allowance of wills. Art 819 emphasizes the nationality rule. It creates an exception
to Art 17 which permits a Filipino to execute a will in a foreign
Art 818.
jurisdiction by complying with the formalities prescribed in such
Two or more persons cannot make a will jointly, or in the jurisdiction.
same instrument, either for their reciprocal benefit or for
The doctrine of lex loci celebrationis is made explicitly
the benefit of a third person.
inapplicable to Filipinos. Joint wills executed by Filipinos in any
Nature of Joint wills jurisdiction where they are allowed cannot and will not be
admitted to probate in the Philippines.
Joint wills relate to testamentary dispositions contained in a
single instrument made jointly by two or more testators. They Foreign nationals are not covered by the prohibition, provided
may refer to properties owned in common by the joint testators, that their own national laws permit them to execute joint wills.
or to properties separately owed by them.
WITNESSES TO WILLS
Where it is physically possible to segregate the dispositions of
Art 820.
each testator into separate instruments, each being complete in
form, the wills cannot be considered joint. Any person of sound mind and of the age of eighteen years
Policy Statement or more, and not blind, deaf or dumb, and able to read and

write, may be a witness to the execution of a will mentioned
in article 805 of this Code.
Application of the Law
The qualifications of a witness in Art 820 apply only to a witness
to a notarial will. The intervention of witnesses is not required in
a holographic will. Even if a holographic will is in fact witnessed,
the qualifications referred in Art 820 and the disqualifications in
Art 821 do not apply to the witnesses who are deemed
dispensable.
Reason for the prescribed qualifications
A sound mind is necessary to enable an attesting witness to fully
appreciate and understand the formalities that he is supposed
to witness.
An insane person can neither appreciate the significance of
these formalities nor understand the nature of the document that
it is to be executed.
Age requirement- to assure maturity of the witness
Not be blind- must be present and see the testator and other
witnesses sign the will
Not be dumb- the need for his testimony in court to give account
of the formalities during the execution
Not be deaf- difficulty of communicating with deaf witness when
presented in court
Literacy requirement- to ensure the intellectual fitness to
appreciate the formalities and their legal significance.
Gonzales vs CA
- Art. 805 requires the notarial will to be attested by at
least 3 credible witnesses. Art. 820 prescribes the
qualifications of a witness, while Art. 821 enumerates
the disqualifications. Thus, an issue arises as to
whether a witness competent under 820 and 821 is
necessarily credible as required by Art. 805. The case
makes a distinction between a competent witness and
a credible witness. Furthermore, the case stresses hat
competence may be proved or inferred; whereas,
credibility, which is a matter to be determined by the
court, is presumed unless evidence to the contrary is
presented.
Credible vs Competent witness
P a g e | 25
805 requires that a notarial will must be “attested and subscribed
by 3 or more credible witnesses”
Competence of a witness may have to be proved, his credibility
is a matter addressed to the court. It is not required that the
credibility of the attesting witness be established before such
witness testifies.
Art 821.
The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a
document, perjury or false testimony.
Domiciliary requirement
The domiciliary requirement is intended to ensure that when the
witnesses are called upon to testify, they can without much
difficulty appear in court. The failure of a witness to appear may
jeopardize the admission of the will.
The domiciliary requirement assumes that the probate is
conducted in the Philippines. Domiciliary requirement is not
mandatory if probate proceedings were held in a foreign
jurisdiction.
Disqualification due to Criminal Conviction
The crimes that would disqualify a person from being an
attesting witness to a notarial will have one element in
common—dishonesty.
If the credibility of the witness is questionable, his testimony on
these matters would be pointless and cannot serve as basis for
admitting the will to probate.
Disqualification pertains to 3 specific offenses. It is submitted
that the grounds are exclusive and do not include other forms of
dishonesty. In any case, appreciation of the credibility is a matter
left to the probate judge.
The notary public before whom the will is acknowledged cannot
be one of the instrumental witnesses to the will. (Cruz vs Villasor)
Art 822.
If the witnesses attesting the execution of a will are
competent at the time of attesting, their becoming
subsequently incompetent shall not prevent the allowance
of the will.
Subsequent Incapacity

The competence of a witness is material at the time of the
execution of the will because it is the time that the witness is
called upon to take mental note of the procedures that were
observed. The competence of a witness is determined as of
such time.
Soundness of the mind is an example of a qualification that a
witness must possess when he takes the witness stand during
probate. However, the law does not require the continuing
qualification of a witness, for to do so would be unjust to the
testator whose will may be disallowed for reasons beyond his
control.
Art 823.
If a person attests the execution of a will, to whom or to
whose spouse, or parent, or child, a devise or legacy is
given by such will, such devise or legacy shall, so far only
as concerns such person, or spouse, or parent, or child of
such person, or any one claiming under such person or
spouse, or parent, or child, be void, unless there are three
other competent witnesses to such will. However, such
person so attesting shall be admitted as a witness as if such
devise or legacy had not been made or given.
Persons prohibited from obtaining benefit under a notarial
will
Art. 823 voids any economic benefit given by a testator in his
notarial will to certain persons. These prohibited benefits are
testamentary gifts given by the testator to:
1. An attesting witness
2. His or her spouse
3. His or her parents
4. His or her child or children
5. Anyone claiming under such witness, spouse, parents
or child.
Note: Prohibition in 823 does not apply to a holographic will.
Reason for the nullity of the disposition
Primary functions of the witnesses to a notarial will:
1. To identify each page of the will by subscribing thereto
2. To attest the observance of certain formalities during
the execution thereof.
During probate, the witnesses are expected to give testimony
confirming:
1. Their signature appearing in the will
P a g e | 26
2. The truth of the matter set forth in the attestation clause.
If any of the witnesses should deny his signatures in the will, or
otherwise disavow the contents of the attestation clause, the
probate of the will is put at serious risk.
The admission or denial of the will to probate depend on the
quality of the testimonies of the witnesses and their credibility.
823 seeks to preserve the integrity, honesty and credibility of the
witnesses while testifying on the formalities observed in the
execution of the will.
To ensure that the witness will not be tempted, the nullification
of legacies and devises extends to those given by the testator
to the members of the immediate family of the witness.
Nature of Prohibition
The law declares void the testamentary benefit given by the
testator to a witness or to the members of his immediate family,
or to anyone claiming under them.
The law does not disqualify the immediate family from being a
witness to the will. By agreeing to be an attesting witness to a
notarial will, a person understands that neither he nor his family
can receive any economic benefit under the will.
Exception to the rule
The nullification does not apply if there are “three other
competent witnesses to such will.” The availability of at least 3
other witnesses who can testify makes unnecessary the
testimony of the witness who has economic interest.
Art. 823 Art. 1027(4)
-nullifies the legacy or devise -the witness, his immediate
given by the testator to an family and persons claiming
attesting witness, immediate under them are declared
family, or anyone claiming incapacitated to inherit from
under them the testator
While the nullity of the legacies and devises in Art 823 is
qualified by an exception, the incapacity of the witness, his
immediate family, and persons claiming under them in Art 1027
is absolute and unqualified.
It would seem that the appropriate remedy to this situation is to
amend either Art 823 or Art 1027.
Compulsory Heir as witness
The nullification of the legacies and devises may extend to
compulsory heir who acted as instrumental witness to a notarial
will.

Many commentators believe that such effect should be limited
to such dispositions in his favor that may exceed the legitime.
Creditor as witness
A creditor who served as instrumental witness is prohibited from
receiving a legacy or devise from the testator. However,
creditor-witness is not precluded from collecting his credit from
the estate.
Persons claiming under the witness, his spouse, ascendant
or descendants
The nullity of the legacy or devise given extends to any person
claiming under them. The creditor cannot derivatively make a
claim on the legacy or devise which is void as to the primary
beneficiary.
Same principle with Art 1027 (4). If the witness and his family
are incapacitated to inherit, a creditor cannot accept the legacy
or devise on their behalf.
Art 824.
A mere charge on the estate of the testator for the payment
of debts due at the time of the testator's death does not
prevent his creditors from being competent witnesses to
his will.
To “charge” the estate simply means to hold the estate liable for
the payment thereof, or to record a claim as a debt or obligation
of the estate.
CODICILS AND INCORPORATION BY REFERENCE
Art 825.
A codicil is supplement or addition to a will, made after the
execution of a will and annexed to be taken as a part thereof,
by which disposition made in the original will is explained,
added to, or altered.
Functions of a codicil
Two distinct functions:
1. It may add to, explain or modify provisions of an
antecedent will
2. It may revoke the antecedent will.
P a g e | 27
The execution of a codicil presumes the existence of a prior
formally valid will. If the antecedent will is formally defective,
there is nothing which a codicil can add to, explain, modify or
otherwise revoke.
First case, effectivity of the dispositions in the codicil is
dependent on the formal validity of both the antecedent will and
the codicil.
Second, when the codicil revokes the antecedent will, it is
likewise important to preserve the antecedent will. The effectivity
of revocation is dependent on the admission to probate of the
subsequent revoking will.
Execution of a codicil for the purpose of amending or adding
additional disposition is not absolutely necessary if the
antecedent will is holographic in form.
Art 826.
In order that a codicil may be effective, it shall be executed
as in the case of a will.
Formalities of a Codicil
A codicil may either be notarial or holographic.
For notarial codicil, Art. 804,805, and 807 and/ or 808 must be
complied
For holographic codicil, Art. 810 must be complied.
Despite the difference, the law does not prohibit a notarial will
from being modified by a holographic codicil. The will and the
codicil shall, be evaluated separately.
Testamentary Capacity
The one who executes a codicil must possess testamentary
capacity at the time of its execution.
Subsequent valid document cannot cure the defect of or
otherwise validate a prior void will. A valid codicil cannot bring
back to life an antecedent void will.
Art 827.
If a will, executed as required by this Code, incorporates
into itself by reference any document or paper, such
document or paper shall not be considered a part of the will
unless the following requisites are present:

(1) The document or paper referred to in the will must be in
existence at the time of the execution of the will;
(2) The will must clearly describe and identify the same,
stating among other things the number of pages thereof;
(3) It must be identified by clear and satisfactory proof as
the document or paper referred to therein; and
(4) It must be signed by the testator and the witnesses on
each and every page, except in case of voluminous books
of account or inventories.
Attachments to a will
827 permits the attachment of documents to a will. By making
reference and attaching such documents, the same are
incorporated to it. By such incorporation, the documents
become integral parts of the will.
Requisites
Requisites for a valid incorporation:
1. The document must be in existence at the time of the
execution of the will.
2. The will must clearly describe and identify the
documents incorporated, stating in particular the
number of pages to avoid any doubt as to the identity
of the documents being incorporated. This is meant to
ensure that the incorporated document is complete,
without addition or suppression of pages.
3. During probate, the document must be clearly
identified by satisfactory evidence. This requires
presentation of the document coupled with testimonial
evidence.
4. The document must be signed by the testator and the
witnesses to each and every page, except in case of
voluminous books of accounts and inventories. (1) to
ensure authenticity of the document; and (2) to prevent
substitution of pages.
5. If a document is incorporated to a notarial will by
reference, the number of pages of the will as stated in
the attestation clause should include the pages of the
attached document.
Incorporation by reference in a holographic will
P a g e | 28
Some commentators suggest that a document may be
incorporated into a holographic will if the following requisites are
met:
1. The document is entirely written by the hand of the
testator.
2. The testator must procure at least 3 witnesses who
shall sign each and every page of the document to be
incorporated into the holographic will.
REVOCATION OF WLLS AND TESTAMENTARY
DISPOSITIONS
Art 828.
A will may be revoked by the testator at any time before his
death. Any waiver or restriction of this right is void.
A will is ambulatory
It does not become final until the death of the testator. He may
revoke the will any time before his death. The effectively revoke,
he must possess testamentary capacity at the time of the
revocation.
Revocation is a personal act of the testator
A testator cannot enter into a contractual arrangement whereby
he relinquishes in favor of a third person his right to revoke a will
already executed. Neither shall a provision to the same effect be
valid if incorporated as disposition in the will.
If the testator should wish to revoke, he may cause another
person to write his name in the revoking codicil, provided it is
done by his express direction, in his presence and likewise in
the presence of 3 instrumental witnesses. (Baloanan vs
Abellana)
Art 829.
A revocation done outside the Philippines, by a person who
does not have his domicile in this country, is valid when it
is done according to the law of the place where the will was
made, or according to the law of the place in which the
testator had his domicile at the time; and if the revocation
takes place in this country, when it is in accordance with
the provisions of this Code.
Conflict rule on revocation of wills
 P a g e | 29

Place of revocation Applicable law A revocation by implication of law may be total or partial. Article
Revocation outside the Domiciliary law of the 44 and 63 of the Family Code are examples of revocations by
Philippines by a non- testator; or law of the place implication of law.
domiciliary where the will was executed
Revocation within the Philippine law By execution of another will or codicil
Philippines
The formal validity of both the revoked will and the revoking
Revocation outside the Philippine law; or Law of the
codicil are essential. If the prior will is formally defective and
Philippines by a domiciliary place of revocation
therefore void, it cannot be revoked by a subsequent will or
codicil.
If the subsequent revoking will or codicil is formally defective, it
cannot revoke a prior valid will. (Samson vs Naval)
Art 830. If the revoking will or codicil is formally defective and accordingly
denied probate, the revocatory clause cannot be given effect.
No will shall be revoked except in the following cases: The prior will may be presented for probate as the last will and
(1) By implication of law; or testament on the testator, assuming it was preserved.

(2) By some will, codicil, or other writing executed as
provided in case of wills; or
(3) By burning, tearing, cancelling, or obliterating the will
with the intention of revoking it, by the testator himself, or
by some other person in his presence, and by his express
direction. If burned, torn, cancelled, or obliterated by some
other person, without the express direction of the testator,
the will may still be established, and the estate distributed
in accordance therewith, if its contents, and due execution,
and the fact of its unauthorized destruction, cancellation,
or obliteration are established according to the Rules of
Court.
Modes of Revoking a Will
3 modes:
1. By implication of law
2. Execution of a subsequent will or codicil
3. Execution of certain overt acts by the testator
The testator’s power to revoke his will is not negated or diluted
in any manner by the facts that the will has been previously
admitted by a court in an ante mortem probate. (Alvarado vs
Gaviola)
By implication of law
A form of revocation which needs no affirmative action on the
part of the testator. Mere occurrence of the relevant event gives
rise to automatic revocation of the relevant testamentary
disposition.
If the testator revoked the prior will by destroying it through any
overt acts in Art 830 (3), its contents and due execution may yet
be proved by secondary evidence, and if so proved, the
destroyed will may be admitted to probate and given effect.
Conditional revocation
Revocation may be conditional. A conditional revocation is not
prohibited by law. The revocation of a will is subject to a
suspensive condition; it will not be effective unless the condition
is fulfilled.
Express and Implied Revocation
An express revocation is accomplished through a clause in a
subsequent will or codicil which expressly revokes the prior will.
This is referred to as a “revocatory clause”
Implied revocation arises when there is an irreconcilable
inconsistency between the provisions of two formally valid wills.
The provisions of the latter will prevail over and implicitly revoke
the inconsistent provisions of the prior will.
Requisites of revocation by means of a subsequent will
1. The testator must possess testamentary capacity at
the time of the execution of the revoking will.
2. The revocation must be definite (expressly or impliedly)
3. The revoking will must be formally valid and admitted
to probate.
Revocation by means of an overt act
A testator may revoke his will by the execution of certain acts
which the law deems consistent with the notion of revoking a will.

These overt acts (burning, tearing, cancelling, or obliterating)
may be described as the deliberate destruction of the will which
indicates the testator’s intention to get rid of the same. The
probate of a will requires the presentation thereof for the
purpose of allowing the court to examine to determine if the
formalities have been complied with. The loss or destruction of
the will or inability to submit the original copy is a formidable
obstacle to its allowance.
Destroy means to reduce an object to useless fragments; to put
an end or extinguish; to render ineffective or useless
Destruction may refer to the physical destruction of the will. It
may also refer to the act which will render the will ineffective or
useless.
The enumeration of overt acts in 830 is non-exclusive.
If a testator wrote the words” null and void” across the face of
the instrument, it should be considered revoked.
Requisites of revocation by overt act
1. Overt act must be specified by law, or otherwise
consistent with the notion of revoking a will.
2. The testator must complete the subjective phase of the
overt act. The overt act must be fully consummated. At
the very least, the “destruction” of the will must reach a
stage where in the mind of the testator, he has
completed the act. The completion can only be
determined from the facts and circumstances of each
case.
If the non-completion of the overt act is due to the
intervention of 3rd persons, a different conclusion
arises. By reason of the non-completion of the
subjective phase of the overt act, the will is not revoked.
In certain cases, the destruction of a small portion of
the will is sufficient for its revocation.
3. The testator must possess testamentary capacity at
the time of the revocation.
4. The testator must have animus revocandi.
Animus Revocandi is the intention of the testator to
revoke his will. Animus revocandi and the overt act
must go hand in hand.
As a general rule, unlawful intervention of a third
person which prevented the testator from revoking his
will cannot be considered as an excuse for the
testator’s failure to perform the overt act of revocation.
There is no provision which allows the reversal of the
revocation of a will which has been completed. If the
P a g e | 30
testator regretted the revocation, the only option is to
re-execute his will.
5. The overt act must be executed by the testator
personally, or through a third person under the express
direction and in the presence of the testator.
The testator may delegate to a 3rd person the physical
act of destroying a will under 2 specific conditions
a. Express directive given by the testator to 3rd
person
b. Destruction be done in the presence of the testator.
Estate of Maloto vs CA
- The burning of a will is one of the modes of revocation.
Under Art. 830, the act of destroying the document
must be done by the testator himself, and if done by a
third person, it must be executed pursuant to the
testator’s express direction and in his presence. The
Court reversed the CA which upheld the revocation of
the will on the basis of sufficient proof of animus
revocandi on the part of the testator. While there are
various requisites for the validity of a revocation by
means of an overt act, this case holds that if a third
person executed the overt act of destroying the will,
the same must be upon the express direction of the
testator and in his presence. Both requisites must be
duly proved, otherwise evidence intended to establish
due execution and the contents of the destroyed will
might be admissible. If the due execution and the
contents of the destroyed will is sufficiently
established, the will may be admitted to probate as a
will which had been invalidly revoked.
Partial revocation by means of an overt act
Partial revocation can be had through the execution of a
revoking will or through a revocation by implication of law.
Completion of the overt act of destroying the will results in the
revocation of the will. The testator may revoke specific
dispositions in the will without necessarily revoking the entire will.
Presumed revocation
The law does not require proof of the revocation of the will. The
revocation can be proved only by parol evidence.
Gago vs Mamuyac
- A will being essentially ambulatory, it may be revoked
at any time by the testator prior his death. Art. 830
enumerates the mode of revocation. The Court held
that a revocation of a will may be implied if the testator

in his lifetime had ready access to the same, and that
after his death the will cannot be found. The
presumption, while disputable, may be reinforced by
testimony regarding the circumstances of the alleged
revocation of the will. And if the presumption of
revocation should apply, a duplicate copy of the said
will cannot be admitted to probate.
- Note: In Gan vs Yap, the Court had the occasion to
opine that a lost holographic will might be proved
through a photographic, photostatic, mimeographed
or carbon copy thereof.; while in Rodelas vs Aranza,
the court reversed an order of the probate court which
dismissed the proceeding based solely on the fact that
the original copy of the holographic will could not be
presented for examination.
Art 831.
Subsequent wills which do not revoke the previous ones in
an express manner, annul only such dispositions in the
prior wills as are inconsistent with or contrary to those
contained in the later wills.
The dispositions of the subsequent will or codicil shall cancel
only those provisions of the prior will which are irreconcilably
inconsistent. Both the prior and the subsequent wills shall be
submitted to probate and if admitted, shall be given
simultaneous effect.
Art 832.
A revocation made in a subsequent will shall take effect,
even if the new will should become inoperative by reason
of the incapacity of the heirs, devisees or legatees
designated therein, or by their renunciation.
Revocation of a prior will takes effect even if the revoking will is
inoperative. A will is inoperative if:
a. The heirs cannot inherit from the testator either
because they predeceased (w/o representation),
became incapacitated or repudiated.
b. The revoking fails to designate any heir of beneficiary.
In Art 832, the revoking will or codicil is presumably valid and
was duly admitted to probate.
Art 833.
A revocation of a will based on a false cause or an illegal
cause is null and void.
False Cause
P a g e | 31
The “cause” refers to the reason which impelled the testator to
revoke a duly executed will or make changes in the dispositions
therein.
The revocation would be vitiated by mistake if the intervening
event which caused the testator to revoke his will, or any
disposition therein, is eventually proved to be false.
Nullity of a revocation based on false cause can only be invoked
if the revocation of the prior will was through the execution of
another will or codicil wherein the cause of the revocation is
explicitly stated.
Non-applicability of the Theory
If the revocation was accomplished through any of the overt
acts ( burnng,tearing, etc.), the doctrine of revocation based on
false cause cannot apply because in the execution of these acts,
the cause of the revocation cannot be stated. There would be
no basis to challenge the truth or falsity of the cause.
Art 834.
The recognition of an illegitimate child does not lose its
legal effect, even though the will wherein it was made
should be revoked.
When the putative father of an illegitimate child recognized the
filiation of the latter in a will, the revocation of the will shall not
result in the nullification of the recognition accorded to such
illegitimate child. The ambulatory character of the testamentary
disposition does not extend to the recognition of the filiation of
an illegitimate child.
The Family Code provides that illegitimate children may
establish their illegitimate filiation in the same way and evidence
as legitimate children.Filiation of legitimate children is
established by any of the following:
1. Record of birth in the civil register or final judgment
2. Admission of legitimate filiation in a public document or
private handwritten instrument and signed by the
parent concerned.
In absence of the foregoing evidence, legitimate filiation shall be
proved by
1. Open and continuous possession of status of a
legitimate child
2. Any other means allowed by ROC and special law.

An illegitimate child may prove his filiation through a will
because notarial and holographic will are admissible evidence
of filiation.
The will need not be admitted to probate in order to be accepted
as evidence of filiation.
Art. 834 cannot apply if the revocation was through overt acts of
burning, particularly if the entire document is destroyed, except
if there is an authentic duplicate copy which can be used as
secondary evidence.
If the will is denied probate on account of non-observance of the
formalities, the recognition of filiation is not necessarily avoided.
The recognition of an illegitimate child is not a property
disposition whose efficacy depends on the admission of the will
to probate.
If the will is denied probate because the testator was insane at
the time of the execution, the nullity of the will necessarily carries
with it the nullity of the recognition of the illegitimate child. An
insane person does not possess the requisite capacity to
perform an act that will produce legal effect.
If the will is denied probate because it was a complete forgery,
a provision relating to the recognition of the illegitimate child is
likewise void.
REPUBLICATION AND REVIVAL OF WILLS
Art 835.
The testator cannot republish, without reproducing in a
subsequent will, the dispositions contained in a previous
one which is void as to its form.
Art 836.
The execution of a codicil referring to a previous will has
the effect of republishing the will as modified by the codicil.
Republication
To “publish” means to issue or cause to be issued publicly; to
announce or proclaim officially or formally; to make known.
To “republish” means to re-issue publicly. The republication of a
will is a process sanctioned by law pursuant to which:
1. A will that is void as to form is rectified by re-executing
the same
2. A revoked will which is valid as to form is brought back
to life through the execution of a codicil.
Forms of republication
P a g e | 32
2 forms: will is void as to form; and will is formally valid but
revoked
1. Will is void as to form
- If the will is void as to form, the testator can rectify the
mistake by re-executing the will in accordance with the
formalities prescribed by law at the time of
republication
- He must (1) rewrite the entire will, (2) procure 3
attesting witnesses; and (3) re-execute the will
following the procedure under 804,805 and 806.
2. Will if formally valid but revoked
- The rewriting and re-execution would be unnecessary.
Republication of the will in this instance is
accomplished through the execution of subsequent
valid codicil that makes specific reference to the
revoked will.
- The testator may republish by executing a codicil
expressly stating his desire that the canceled will be
reinstated. – Republication by mere reference
- In this form of republication, it is necessary for the
testator to preserve the canceled will because the
formal validity of the revoked will can only be
established by its presentation and examination.
Effects of republication by means of a codicil
1. As to amendments
- The testator may amend or modify to the contents
2. As to effectivity
- The republished will speaks as of the date of
republication
3. As to governing law
- The formal validity of the notarial codicil which
republished the notarial will is governed by the law in
force at the time of republication.
Art 837.
If after making a will, the testator makes a second will
expressly revoking the first, the revocation of the second
will does not revive the first will, which can be revived only
by another will or codicil.
Revival of wills
“Revival” is the reinstatement of a revoked will by operation of
law. Revival requires no action on the part of the testator.
Requisites of revival:
1. First formally valid will

2. Second formally valid will whose provisions are
irreconcilably inconsistent with the first will
3. Second will does not expressly revoke the first, but
because of inconsistency, the second implicitly
revoked the first.
4. The testator revoked the second will.
When the requisites are met, the first will is automatically revived.
If a formally valid prior will is expressly revoked by a formally
subsequent will or codicil, the revocation of the subsequent will
or codicil would not revive the prior will.
ALLOWANCE AND DISALLOWANCE OF WILLS
Art 838.
No will shall pass either real or personal property unless it
is proved and allowed in accordance with the Rules of
Court.
The testator himself may, during his lifetime, petition the
court having jurisdiction for the allowance of his will. In
such case, the pertinent provisions of the Rules of Court
for the allowance of wills after the testator's a death shall
govern.
The Supreme Court shall formulate such additional Rules
of Court as may be necessary for the allowance of wills on
petition of the testator.
Subject to the right of appeal, the allowance of the will,
either during the lifetime of the testator or after his death,
shall be conclusive as to its due execution.
Nature and Necessity of Probate
Rodriguez vs Rodriguez
- The case emphasizes the need for probate of a will,
as mandated in Art. 838. Without probate, the will is
ineffective and does not produce legal effect. In this
case, the SC recognized the testator’s right, during his
lifetime, to sell the property which he had previously
adjudicated to his heirs in his will. In this regard, the
provision of Art. 957 is worth considering: “the legacy
or devise shall be without effect: x x x (2) If the testator
by any title or for any cause alienates the thing
bequeathed or any part thereof, it being understood
that in the latter case the legacy or devise shall be
without effect only with respect to the part thus
alienated. x x x Art. 957 is one of the 7 provisions of
P a g e | 33
the Civil Code and Family Code which pertains to
implied revocation of a testamentary disposition.
Lasam vs Umengan
- To probate a will means to prove before some officer
or tribunal, vested by law with authority for that
purpose, that the instrument offered to be proved is
the last will and testament of the deceased person
whose testamentary act it is alleged to be, and that it
has been executed, attested and published as
required by law, and that the testator was of sound
and disposing mind. It is a proceeding to establish the
validity of the will.
The proceeding has 2 phases
1. Probate proper
2. Partition
In probate proper, the probate court determines
1. The testamentary capacity of the testator
2. Compliance with the formal requisites by law
3. The fact that the document presented is indeed the will
of the testator; and
4. The fact that the testator freely and voluntarily
executed the same.
The jurisdiction is vested in the RTC and the procedure is
governed by the ROC.
In the second phase, the probate court determines the intrinsic
validity of the dispositions preparatory to the eventual partition
of the hereditary estate. Included is the evaluation of the
capacity of the heirs.
Probate is necessary before a will can pass property.
Jurisdiction of the Probate Court; Effect of Judgment
Scope of inquiry
The scope of inquiry is limited to 4 specific matters. If the
petitioner is able to prove these matters, the court will issue an
order admitting the will to probate. The probate order is final and
conclusive on the matters stated above, unless the probate
order is appealed within the period allowed by ROC.
Gallanosa vs Arcangel
- Art 838 of the Code requires probate as a condition
precedent for the effectivity of a will. Probate is limited

to determination of 2 issues: first, the soundness of
mind of the testator, and second, the requisite age.
Due execution refers to compliance with the formal
requisites prescribed by law. If the proponents of the
will are able to prove testamentary capacity and due
execution, the probate judge will forthwith issue an
order admitting the will to probate. Once the probate
order becomes final, the testamentary capacity of the
testator and the due execution of the will becomes
incontestable. Res judicata will apply to any attempt to
reopen and or revisit the issues of testamentary
capacity and due execution.
- The case illustrates the inevitable result of an attempt
to reopen probate proceedings long after the probate
order has become final. It is important to note that the
procedural laws do not permit nor sanction the
institution of an action for the “annulment” of a will.
Extrinsic and Intrinsic Validity
One of the functions of the probate court is to determine the
extrinsic (formal) validity of the will. Matters of intrinsic validity
are determined after the will has been duly admitted to probate.
Issue of ownership
A probate court does not have jurisdiction to rule with finality on
the issue of ownership. Probate court may provisionally pass
upon questions of ownership, but such determination is without
prejudice to the filing of a separate reinvindicatory action by the
aggrieved party.
Pastor, jr vs CA
- This case is a detailed account of the jurisdiction of a
probate court, particularly in the matter of liquidating
the estate of a deceased person. The appropriate
procedure must be noted in the light of the unusual
haste in which the probate judge sought to deliver a
legacy to the designated legatee. More importantly,
the jurisdiction of a probate court to determine the
issue of ownership must be noted.
Jimenez vs IAC
- The probate court, as a rule, cannot pass with finality
on issues affecting ownership of property. The case
holds that this limitation applies also to proceedings
in intestacy where an intestate court can only pass
upon on issues of title on a provisional basis only.
And despite a ruling of the intestate court on the
matter, the parties are not barred by res judicata
P a g e | 34
from instituting a separate and subsequent
independent action to thresh out the matter.
Exception to the scope of inquiry
The scope of inquiry of a probate court is limited to matters
pertaining to testamentary capacity of the testator and the
extrinsic validity of the will.
Nepomuceno vs CA
- While the general rule is that the probate court’s area
of inquiry is limited to the extrinsic validity of the will,
practical considerations may compel the probate court
to pass upon matters of intrinsic validity. In particular,
where a testamentary provision is void on its face, a
probate court, in accordance to the ruling in Nuguid
case, pass upon such provision for the purpose of
declaring its nullity.
Types of Probate
1. Ante-mortem probate
2. Post-mortem probate
3. Reprobate of a will
Ante-mortem probate
This is probate of a will during the lifetime of the testator. It is the
testator who initiates the proceedings.
Advantages
1. The testator can readily identify the document as his
will
2. The probate court can easily make determination of the
testator’s capacity
3. When called to testify, the attesting witness have a
fairly fresh recollection of formalities.
If the probate is uncontested, it is sufficient if the testator affirms
the holographic will and the signature as his own handwriting.
Opposition to probate can only be anchored to testator’s lack of
capacity which he can conveniently rebut.
The ambulatory nature of the will is not destroyed. He may
revoke such will during his lifetime.
Post-mortem probate
This type is initiated after the death of the testator. The testator
can no longer be examined. Much is dependent on the
testimony of the witnesses
 P a g e | 35

Reprobate of will In case of a lost or accidentally destroyed notarial will, it is

essential that the proponent proves that the requirements are
It is the reprobate of a will that has been admitted by a probate
fulfilled. The burden of proving compliance is problematic
court in a foreign jurisdiction. The matters to be proved are as
because the very document that will establish compliance is
follows:
nowhere to be found.
a. The due execution of the will in accordance with foreign
The quality of evidence necessary to convince a probate court
laws that the formalities were observed must be of such kind that
b. That the testator has his domicile in the foreign country
leaves no doubt that there was compliance with the law. The
c. That the will has been admitted to probate in such
contents of a lost or destroyed will may be proved by secondary
country
evidence such as records, notes or drafts of the will, if there be
d. That the fact that the tribunal is a probate court; and any, coupled by the testimony of the lawyer who assisted the
e. The laws of the foreign country on procedure and
testator in preparing the same.
allowance of wills.
Lost holographic will
Presentment of the will
The primary evidence of authenticity is not available. At best,
Presentment of the will to the probate court for examination is
the proof of due execution is totally dependent on the testimonial
necessary. The custodian of the will is under the obligation to evidence. Affirmative declaration of at least 1 witness if probate
deliver the will to the court within 20 days from learning of the
is uncontested, or 3 witnesses if probate is contested, that the
death of the testator under pain of penalty. (Vda de Perez vs
entire holographic will is in the handwriting of the testator.
Tolete)
Gan vs Yap
A physical examination of the notarial will enable the court to
verify whether or not - Art. 81 prescribes the evidence required for the
probate of holographic will. The case stresses that if
a. The testator signed at the end
the holographic will sought to be probated is lost, or
b. The testator signed in person or through another
otherwise cannot be presented in court, the same
c. There are atleast 3 witnesses who signed each and
must be denied probate. This is so because the only
every page of the will
guarantee of authenticity is not available for scrutiny.
d. Each pages of the will is correlatively numbered
e. The attestation clause complies with the statutory Secondary evidence of a lost will
requirements in terms of contents and signatures
Rodelas vs Aranza
f. Will is acknowledged before a notary public.
- Petitioner presented a photostatic copy of an alleged
From a physical examination of a holographic will, 3 things must
holographic will that was missing. The court held that
be proved:
the photostatic copy of the lost holographic will may
a. The entire will is in the handwriting of the testator be used as secondary evidence of its existence and
b. The will is dated genuineness.
c. The signature appearing at the end is that of the
Evidentiary value of a machine copy of a last will
testator
A probate court is not justified in denying probate simply
Probate of lost will
because the original copy of the holographic will is not presented
2 fundamental obstacles must be surmounted: for examination.
1. Proof of compliance with the formalities is absolutely It is doubtful if a handwriting expert would certify the
necessary genuineness of the testator’s handwriting based solely on an
2. Proof of contents which is the basis for the distribution examination of the photocopy of the missing will.
of the estate.
Art 839.
Lost notarial will
The will shall be disallowed in any of the following cases:

(1) If the formalities required by law have not been complied
with;
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other
person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of
affixing his signature thereto.
Grounds to Disallow a Will
The grounds may be classified into 3 categories:
1. Failure to comply with the formal requisites (par 1)
2. Testator’s want of testamentary capacity ( par 2)
3. Testator’s consent is vitiated (par 3-6)
Denial of probate due to the incapacity of the testator and non-
compliance with the formalities is extensively discussed in Art
796- 810.
Vice of Consent
Consent is manifested by the meeting of the offer and the
acceptance upon the thing and the cause to constitute the
contract.
Consent presupposes that the party is fully aware of the nature
of the contract, the terms and conditions thereof, as well as his
rights and obligations thereunder.
The requisites of consent are:
1. Intelligent
2. Free
3. Spontaneous
Paragraph 3-6 of Art. 839 refer to the vices of consent affecting
the testator’s consent to the execution of the will.
Mistake
Art. 1331 describes the nature of mistake. A mistake on the part
of the testator vitiates his consent and shall invalidate a will if at
the time of its execution the testator did not know that the
P a g e | 36
instrument he signed is a testament that will govern the
disposition of his estate upon his death, and that he
consequently signed the will by mistake.
Force
Force or violence is defined in Art. 1335. There is violence when
in order to wrest consent, serious and irresistible force is
employed.
Force or violence is physical. Requisites in order that violence
may vitiate consent:
1. Physical force must be irresistible or of such degree
that the victim has no other recourse but to submit.
2. The force is the determining cause in giving consent.
Force vitiates the testator’s consent if the physical force is
irresistible and leaves the testator to sign the will; and the
testator would not have executed the will were it not for the
physical force.
Intimidation
Intimidation is defined in the 2nd and 4th paragraph of Art. 1335.
Intimidation is the internal force exerted by a person which is
intended to influence the mind of another to choose between
two evils.
Requisites:
1. The intimidation caused the giving of consent
2. The threatened act is unjust or unlawful
3. The threatened act must be real and serious
4. The intimidation produces a reasonable well-grounded
fear that the intimidator has the necessary means or
ability to inflict the threatened injury.
A will is void if the testator signed the will under a real threat.
Emphasis must be made to the seriousness of the threat and
seriousness of the evil that is threatened to be inflicted.
Undue Influence
Undue influence is defined under Art. 1337
Undue influence is a form of moral coercion, it does not
necessarily involve the performance of an unjust or unlawful act
on the part of the person exerting the influence.
Undue influence is any means employed upon a person which
under the circumstances he could not resist, and which
controlled his volition and induced him to give his consent.
 P a g e | 37

Simple influence does not vitiate consent. It is critical to Article 840.

differentiate between the use of power of persuasion from
Institution of heir is an act by virtue of which a testator
influence that is undue because it destroys the free agency of
designates in his will the person or persons who are to
the will. The first is an appeal to the intellect or to the emotion;
succeed him in his property and transmissible rights and
the latter destroys the freedom of the will.
obligations. (n)
Fraud
Institution of heirs is one of two modes, which the second mode
Fraud is defined under Art. 1338. is through bequests. However, it is annulled completely in the
case of preterition(Art 854), of partially in the case of void
Fraud is synonymous with deception. The purpose if fraud is to
inheritance (Art 918), but legacies and devises which do not
lead one person to error so that he would give his consent to
impair the legitime are preserved.
execute an act.
Heir Legatee (movables)
Fraud includes: misrepresentations, false promises, misleading
and Devices
exaggerations, concealment of material facts, giving of false
(immovables)
hope, promise of false benefits, use of fictitious names, etc.
person persons designated by
Fraud vitiates consent if:
designated by the the testator in his will to
1. It is employed by a party upon a counter-party testator in his will receive specific
2. It is serious to receive an movables and
3. Induced the other to give consent aliquot or immovables.
4. Resulted to damage or injury to the party defrauded fractional part of
the estate.
Jurisprudence of vices of consent
In order to invalidate a will, the vice of consent must be proved.
A will cannot be declared void on the basis of unsubstantial Requisites of a Valid Institution (concurrence of all to be
allegations of intimidation, undue influence or fraud. (Baltazar vs effective)
Laxa) 1. Will must be extrinsically valid (Art 838)
That the testatrix lived with the heir does not per se indicate that 2. Institution must be compliant with law
the latter had unduly influence the former in the making of the a. No preterition of Compulsory heir (Art 854)
will. (Pascual vs De La Cruz) b. Not impair legitime (Art 907)
c. IH must be capacitated to inherit (Art 1024)
The allegation that a testator was unduly influenced by the
3. Institution must be free from vices of consent (VIMFU)
person with whom he temporarily lived is negated by the fact
that the testator did not revoke the will when he stepped out of 4. Testator must personally institute the heir (Art 784)
the house of the supposed influencer. (Ozaeta vs Cuartero) 5. Instituted Heir (IH) must be clearly identified (Art 786)

The oppositor has the burden of proving undue influence. The Article 841.
testator’s strong affection for a particular person does not prove
A will shall be valid even though it should not contain an
that the latter had exerted undue influence on the former. (Coso
institution of an heir, or such institution should not
vs Fernandez-Deza)
comprise the entire estate, and even though the person so
Th fact that the testator was an octogenarian and that his wife instituted should not accept the inheritance or should be
was 52 years his junior does not establish the fact that the wife incapacitated to succeed.
had defrauded the testator into signing the will; neither does the
In such cases the testamentary dispositions made in
omission of the relatives from the will. (Ortega vs Valmonte)
accordance with law shall be complied with and the
remainder of the estate shall pass to the legal heirs. (764)
SECTION 2
Institution of Heirs

Institution of Heirs and Complete Distribution Not
Necessary
Institution of heirs does not affect the validity of the will since the
testator must only make a property disposition. Neither for the
testator to give all of the entire estate to the Instituted Heirs,
since testator may also distribute it by legacies or devises or on
the rules of intestacy.
Partial Intestacy and Avoidance of Partial Intestacy
Incomplete distribution leads to partial intestacy or a case of
mixed succession. The rule is property acquired after making of
the will may be disposed by the testator under the terms of the
said will as if he had possessed it at the time of the execution of
the will, provided that the testator expresses such intent in the
will. However, Article 793 gives the testator an opportunity to
dispose future property without having to execute another will or
amend the existing one. Remember that a will is not invalidated
simply because the institution of heirs did not comprise the
entire estate. Also, the rules on intestacy will be applied in
distributing the portion of the estate that was not distributed by
the testator in his will and there was no accretion.
Vacancy in the inheritance due to incapacity or Repudiation
Will is not invalidated in case of incapacity or repudiation. The
validity of a will is a matter of law whether intrinsic or extrinsic.
Effectiveness of a will is partly dependent on the law (incapacity)
and dependent on the heir (might repudiate). If the will is
admitted to probate, other heirs may accept the inheritance of
the incapacitated or those who repudiated, or if all heirs were
incapacitated or repudiated, the will may be given effect if the
testator provided for substitute heirs,
3 Contingencies that limits the scope of substitution
1. Heir predeceased the testator
2. Heir repudiated the inheritance
3. Heir is incapacitated to inherit from the testator.
In any of these contingencies, the substitute, unless disqualified,
may enter into the inheritance in default of the heir originally
instituted.
If there is no substitute provided but will is admitted to probate,
the will is extrinsically valid but the distribution is inoperative.
Intestacy kicks in! NO right of accretion ( plurality of heirs not
met Art 1016) and NO right of representation(Vacancy caused
by repudiation).
Article 842.
P a g e | 38
One who has no compulsory heirs may dispose by will of
all his estate or any part of it in favor of any person having
capacity to succeed.
One who has compulsory heirs may dispose of his estate
provided he does not contravene the provisions of this
Code with regard to the legitime of said heirs. (763a)
Freedom to Dispose Property
Compulsory succession refers to the system of succession
where the law confers upon some specified heirs the statutory
right to receive a definite portion of the hereditary estate unless
they are disqualified to receive the same by reason of
disinheritance or incapacity.
Legitime is the guaranteed minimum amount of entitlement.
Freedom to dispose by the testator if survived by compulsory
heirs should not impair the legitime. However, if no compulsory
heirs, more freedom to dispose his estate by will since there will
be no impairment of legitime.
3 categories on statutory and jurisprudential limitations on the
freedom to dispose the estate
1. Incapacity to Succeed (Art 1027)
2. Testamentary Provisions that are void
3. Disqualification of an heir
Article 843.
The testator shall designate the heir by his name and
surname, and when there are two persons having the same
names, he shall indicate some circumstance by which the
instituted heir may be known.
Even though the testator may have omitted the name of the
heir, should he designate him in such manner that there can
be no doubt as to who has been instituted, the institution
shall be valid. (772)
Article 844.
An error in the name, surname, or circumstances of the heir
shall not vitiate the institution when it is possible, in any
other manner, to know with certainty the person instituted.
If among persons having the same names and surnames,
there is a similarity of circumstances in such a way that,
even with the use of other proof, the person instituted
cannot be identified, none of them shall be an heir. (773a)
Article 845.
 P a g e | 39

Every disposition in favor of an unknown person shall be Total 45,000.00 45,000.00 90,000.00
void, unless by some event or circumstance his identity
becomes certain. However, a disposition in favor of a
definite class or group of persons shall be valid. (750a) b. Second Approach
(reiterates 786)
Example:
Identification of Heir
Testator with net hereditary estate of P90,000.00 instituted his
Testator personally selects his beneficiaries and personally
son A, and his nephews B and C in equal shares as universal
determines the specific property or specific portion of the estate
heirs.
that he intends to give to each of them. Testator should indicate
some circumstance by which the true heir can be identified. If Distribute according to institution noting that there is no
still, unable to resolve determine intent of testator by examining impairment of legitime. If there is impairment, remedy according
the will and then by reception of extraneous evidence excluding to Art 906. Hence, distribute then adjust.
oral declaration.
Heir Institution Adjustment Total
Validity of Class Institution
A - CH 30,000.00 15,000.00 45,000.00
It does not require to identify each member. Example Art 1030
– institution of poor in general. B - VH 30,000.00 (7,500.00) 22,500.00

Article 846. C - VH 30,000.00 (7,500.00) 22,500.00

Heirs instituted without designation of shares shall inherit Total 90,000.00 90,000.00
in equal parts. (765)
Principle of Equality In Dizon-Rivera v Dizon, the Court ordered the completion to
Article premised upon the assumption that heirs are of the same satisfy the legitime in accordance with Art 906. It supported the
class (all VH or all CH) and should inherit in equal parts. second method.
However, this should not impair the legitime of compulsory heirs. Article 847.
Hence, the respective share of CH is at least equal to legitime
and if less, share of VH must be decrease. Remember that it is When the testator institutes some heirs individually and
a statutory obligation to set aside the legitime of CH. others collectively as when he says, "I designate as my
heirs A and B, and the children of C," those collectively
a. First Approach designated shall be considered as individually instituted,
unless it clearly appears that the intention of the testator
Example:
was otherwise. (769a)
Testator with a net hereditary estate of P90,000.00 instituted his
Collective Institution
two sons A and B, and his nephew C as universal heirs.
Heirs collectively instituted are deemed instituted individually.
Segregate legitime (Art 888), always half of estate and then
(quantitative equality among them)
divide equally to CH. The other half then should be divided
equally to instituted heirs ABC. Testator left a net hereditary estate of P180,000.00 and
instituted A, B, and the Children of C. Each will get its share as
Heir Legitime Institution Total
instituted, and the share of those collectively instituted will be
A - CH 22,500.00 15,000.00 37,500.00 divided among them.

B - CH 22,500.00 15,000.00 37,500.00 Heir Institution Collective Institution

C - VH 15,000.00 15,000.00 A 60,000.00

B 60,000.00

Children 60,000.00 X 20,000.00
of C
Y 20,000.00
Z 20,000.00
Total 180,000.00
Article 848.
If the testator should institute his brothers and sisters, and
he has some of full blood and others of half blood, the
inheritance shall be distributed equally unless a different
intention appears. (770a)
Reason for equality
Bothers and Sisters are not CH but Intestate Heirs. If instituted,
full blood and half blood gets equal share. However, in Art 1006,
share of full blood is twice of half blood in intestate succession.
Article 849.
When the testator calls to the succession a person and his
children they are all deemed to have been instituted
simultaneously and not successively. (771)
Proscription Against Successive Institution
In the absence of the intention specified in Art 849, share in the
inheritance will be equally. Successive institution effectively
bars the instituted heir from disposing the inherited property,
whose destiny has been predetermined by the testator.
Article 850.
The statement of a false cause for the institution of an heir
shall be considered as not written, unless it appears from
the will that the testator would not have made such
institution if he had known the falsity of such cause. (767a)
The “Cause” of Acts of Pure Beneficience
Cause is the liberality of grantor, and it can never be false.
Institution with False Cause
The cause is the incidental reason for the institution. It can be
false. The general rule is that such institution will not affect the
validity of the institution of the heir. It is deemed not written and
ignored. The exception is when it appears from the will that the
testator would not have made the institution of the heirhad he
P a g e | 40
known the falsity of the incidental cause for such institution, the
testator would be deemed to have acted on the basis of a
mistake of fact which under the law is a vice of consent. Hence,
institution is void.
In order to void the institution based on false cause, it is
necessary that:
1. Testator must expressly state the incidental cause for
institution
2. Cause is shown false. Extraneous evidence to the will
may be used.
3. It must appear in the will that the testator would have
not made such institution if he had known the falsity of
the cause. Extraneous evidence to the will cannot be
used.
In Austria vs. Reyes, inferences and conjectures are not
sufficient to invalidate a provision which is challenged as one
made on the basis of a false cause.
Article 851.
If the testator has instituted only one heir, and the
institution is limited to an aliquot part of the inheritance,
legal succession takes place with respect to the remainder
of the estate.
The same rule applies if the testator has instituted several
heirs, each being limited to an aliquot part, and all the parts
do not cover the whole inheritance. (n)
Causes of Partial Intestacy
1. When the institution refers only to one heir and the
same is limited to an aliquot part of the estate.
2. When several heirs are instituted to aliquot parts of the
estate, and all the parts do not cover the whole
inheritance.
However, not limited to a failure of the instituted heir to take the
entire inheritance pursuant to the provisions of the will, or if an
instituted heir, legatee or devisee (PIR) predecease the testator,
incapacitated to succeed, or repudiates the inheritance, and
neither the right of representation nor the right of accretion is
inapplicable.
Article 852.
 P a g e | 41

If it was the intention of the testator that the instituted heirs 2. All CH
should become sole heirs to the whole estate, or the whole
free portion, as the case may be, and each of them has been Testator left a net hereditary estate of P720,000.00 to A,B and
instituted to an aliquot part of the inheritance and their C with share of 6/12, 3/12 and 2/12. There is an undisposed
aliquot parts together do not cover the whole inheritance, balance of 1/12 or 60,000.00.
or the whole free portion, each part shall be increased Adjusted Share of an heir to the disposable free portion = Total
proportionally. (n) disposable free portion x Original Share of the heir in the
Application of 852 disposable free portion pursuant to institution ÷ Total amount
of Disposable
It applies in the institution of soe heirs. Sole Heirs refer to a
group of two or more heirs who are instituted by the testator Heir Legitime Share in Free Unadjusted
either to the entire estate or to a portion thereof to the exclusion Portion Total
of all other persons. A 120,000. 240,000.00 360,000.00
Three possibilities: 00

1. All are CH B 120,000. 60,000.00 180,000.00

2. All are VH 00
3. Combination of CH and VH C 120,000. - 120,000.00
00
Incomplete Distribution
Total 360,000. 300,000.00 660,000.00
The undisposed residual balance shall be given to the sole heirs
amount 00
by proportionately increasing their respective entitlements.
distribute
Same rule applies if the testator instituted a group of heirs to a
d
specific portion of the estate and the aliquot parts assigned to
each of the heirs, when added up do not cover the entirety of Undispos 60,000.00
that portion of the estate given to the said heirs. ed
Balance
Illustration:
Net 720,000.00
1. All VH
Hereitary
Testator left a net hereditary estate of P720,000.00 to A,B and Estate
C with share of 3/12, 4/12 and 4/12. There is an undisposed
balance of 1/12 or 60,000.00.
H Total Origina Total share Adjust Total
Adjusted Share = Net Hereditary Estate x Fraction assigned by ei disposa l Share
X
DFP ÷ ed =
testator ÷ Total amount distributed (Legiti
r ble free in DFP distributed Free
me
Heir Net Hereditary Fraction assigned by Total amount Adjusted portion Portion
Estate testator distributed Share +AFP)
A 720,00 3 11 196,36 A 360,000 240,00 300,000 288,000 408,0
0.00 4 .00 0.00 .00 00
B 720,00 4 11 261,81 B 360,000 60,000. 300,000 72,000 192,0
0.00 8 .00 00 .00 00
C 720,00 4 11 261,81 C - - - - 120,0
0.00 8 00
 P a g e | 42

Tot 720,00 C 150,000.0 18,750. 112,500.0 25,000 25,000

al
0 0 00 0

Note: no need to adjust if institution result is equal to legitime D 150,000.0 18,750. 112,500.0 25,000 25,000
and no participation/benefit from DFP. 0 00 0

3. CH + VH concurring T 300,00
o 0
Testator left a net hereditary estate of P720,000.00 to A and B t
(sons) and C and D (brothers) with share of ¾ to the sons and al
1/8 to the brothers. There is an undisposed balance of 2/16 or
37,500.00
Article 853.
If each of the instituted heirs has been given an aliquot part
of the inheritance, and the parts together exceed the whole
inheritance, or the whole free portion, as the case may be,
Heir Legitime Share in Free Unadjusted each part shall be reduced proportionally. (n)
Portion Total Proportionate Reduction of Shares
A - son 75,000.0 37,500.00 112,500.00 Adjusted Share of an heir = Net Hereditary Estate x Amount
0 representing the aliquot part assigned by the testator to the heir
B - son 75,000.0 37,500.00 112,500.00 ÷ total amount distributed in accordance with the terms of the
0 will

C - bro 18,750.00 18,750.00 If distribution by testator exceeds the value of estate, the excess
should be proportionately reduced of the respective shares of
D - bro 18,750.00 18,750.00 the heirs in order.
Total 150,000 112,500.00 262,500.00 Illustrations:
amount
1. All VH
distributed

Undispos 37,500.00 A testator who has no CH instituted his brothers A, B, C and D

ed to a net hereditary estate of P360,000.00 for 1/8, ½, ¼ and 1/6.
Balance This provides an excess of 1/24 or P15,000.00

H Total Original Total Adjuste Total

ei disposabl Share share d Free (Legitim
r e free in DFP DFP Portion e
portion distribute +AFP) Heir Net Institut Total Adjusted
d Heredit ed distributed Share of an
ary Share instituted share Heir
A 150,000.0 37,500. 112,500.0 50,000 125,00 Estate
0 00 0 0
A 360,000.0 45,000. 375,000.00 43,200
B 150,000.0 37,500. 112,500.0 50,000 125,00 0 00
0 00 0 0
 P a g e | 43

B 360,000.0 180,00 375,000.00 172,800 B 180,0 135,000.00 195,000.00 124,615

0 0.00 00.00
C 360,000.0 90,000. 375,000.00 86,400 C 180,0 45,000.00 195,000.00 41,538
0 00 00.00
D 360,000.0 60,000. 375,000.00 57,600 D 180,0 15,000.00 195,000.00 13,846
0 00 00.00
To 360,000 To 195,000.00 180,000
tal tal

2. All CH H Legit Instituted Redu Adjusted Final

eir ime Share from ction Share of an Shar
A testator instituted his four legitimate sons to a net hereditary DFP Heir e
estate P360,000.00 as follows: 1/8, ½, ¼ and 1/6. There is an
excess of 1/24 or P15,000.00. Note: CH then legitime should not A 45,0 0.00 0.00 0 45,00
be impaired. 00.0 0.00
0
Heir Legitime Institution Share of the free
(fraction in portion (Instituted B 45,0 135,000.00 (10,3 124,615 169,6
the will) Share less legitime) 00.0 84.62 15.38
0 )
A - son 45,000.0 45,000.00 0.00
0 C 45,0 45,000.00 (3,46 41,538 86,53
00.0 1.54) 8.46
B - son 45,000.0 180,000.0 135,000.00 0
0 0
D 45,0 15,000.00 (1,15 13,846 58,84
C - son 45,000.0 90,000.00 45,000.00 00.0 3.85) 6.15
0 0
D - son 45,000.0 60,000.00 15,000.00 T 180, 195,000.00 (15,0 180,000 360,0
0 ot 000 00.00 00.00
Total 180,000 375,000.0 195,000.00 al )
amount 0
distribute
d

excess 360,000- 3. CH and VH concurring

375000=15000
A testator instituted A 1/8, B ½, C ¼ and D 1/6 to a net hereditary
estate of P360,000.

H DFP x Institution ÷Total Adjusted Heir Legitime Institution Share of the free
eir to the DFP distributed/D Share of an (fraction in portion or (impairment
FP Heir the will) of legitime)

A 180,0 0.00 195,000.00 0 A - bro 45,000.00 45,000.00

00.00
 P a g e | 44

B - bro 180,000.0 180,000.00 If the omitted compulsory heirs should die before the
0 testator, the institution shall be effectual, without prejudice
to the right of representation. (814a)
C - son 90,000.0 90,000.00 -
0 Protection to the Legitime
D - son 90,000.0 60,000.00 (30,000.00) If the CH in the direct line is denied a share of the hereditary
0 estate because the testator excluded him in the will, the omitted
heir is entitled to the annulment of the institution of heirs under
Total 180,000 375,000.0 195,000.00 Art 854 so that he may participate in the distribution of the
amount 0 hereditary estate under the rules of intestate succession.
distribute
d Requisites of Preterition

excess 360,000- 1. Preterited CH is totally omitted

375000=15000 2. Omitted heir must be compulsory heir Art887 (VH
never preterited since not entitled to legitime)
3. Omitted CH must be an heir in the direct line
The impairment of legitime must be first satisfied and be 4. Omitted CH must survive the testator
completed from the respective shares. In case of excess, a
second reduction will be made against the DFP. In Aznar vs Duncan, if a compulsory heir were given a legacy
by the testator in the will (without instituting him or her as an
H Legi Comp Free 1st 2nd Final heir), the said compulsory heir can no longer claim the benefit
ei tim letion Portio Reduc Reduct Share of Article 854.
r e n tion ion s
In Balanay Jr vs Martinez, no such thing as preterition of
A 45000 (6,000 (3,000) 36,00 surviving spouse.
) 0
In Acain vs IAC, an adopted child may be preterited.
B 180,0 (24,00 (12,00 144,0
Distinction between Preterition and ineffective
00 0) 0) 00
Disinheritance
C 90, 90,00 Preterition Ineffective
000 0 Disinheritance
D 60, 30,00 90,00 Art 854 Art 918
000 0 0
presumed always for a
To 360,0 unintentional reason/cause
tal 00
annuls institution of annuls institution of
heirs in its totality heirs only insofar as it
Article 854. may be necessary to
give the legitime
The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the triggers either partial not necessarily result in
time of the execution of the will or born after the death of or total intestacy intestacy
the testator, shall annul the institution of heir; but the
devises and legacies shall be valid insofar as they are not
inofficious.
 P a g e | 45

may be invoked only applies to Surviving X 80000 105 120000 70,000.0

by CH in the Direct Spouse 000 0
Line excluding
Y 40000 105 120000 35,000.0
surviving spouse in its
000 0
protection
Total (should be 105,000.
preterited heir may receives his or her
equal to DFP) 00
receive in addition to relative
legitime, a share in the
disposabke free
portion Preterition: An Issue of Substantive Validity of the Will
The jurisdiction of probate court is limited to an inquiry on:
1. Extrinsic validity of the will
Effects of Preterition
2. Testamentary capacity of testator
Preterition annuls the institution of heirs. 3. Confirmation that the document is the will of the
testator
1. Annulment of the Institution of heirs resulting in total
4. Testator freely executed the will
intestacy
In general, matters of intrinsic or substantive validity are passed
Testator left a will instituting sons A and B, and friend X to
upon only after the will is admitted to probate. General Rule, the
equally share his estate. However, legitimate son C was
question of preterition should not be raised during probate
preterited. Thus, it annuls the institution of A, B, and X. The
proceedings, and the probate court should not entertain such
entire estate passes to the intestate heirs. In this case, A B and
issue.
C share equally and friend X is not entitled.
In Nuguid vs Nuguid, if it should appear on the face of the will
2. Annulment of the Institution of heirs without prejudice
that the sole disposition is intrinsically invalidity, and that nothing
to a legacy
is gained from an inquiry into extrinsic validity, then a probe into
A testator instituted two of his sons as sole heirs after paying a the testamentary disposition, and the consequential invalidation
legacy to testator’s brother. Legitimate third child was preterited. thereof is justified for practical considerations. While Article 854
Hence, it annulled the institution of A and B as sole heirs, but annuls merely the institution of heir, the court is justified in
the legacy in favour of testator’s brother may be honoured if not declaring the entire will void if the only testamentary disposition
inofficious. It is not inofficious if the legacy can be carried by the in the questioned will is the institution of the universal heir. In
DFP without impairing the legitime. such a case, the effect of the nullification of the testamentary
disposition would be the same as the nullification of the will itself.
3. Annulment of the Institution with reduction of legacies
Law Governing the Issue of Preterition
However, if in the case that legacies paid exceeded the value of
Preterition is a matter covered by Article 16 insofar as it relates
the DFP, the legacies paid must be reduced to the extent that
to the order of succession and to the amount of successional
will prevent the impairment of legitime. Note that reduction is
rights.
pro rata, it means proportionate share of what they received.
In Cayetano vs Leonidas, Article 854 does not apply in the
Example:
case of a foreign testator who omits in his or her will the
Leg Legacy x ÷ Total Legacies Reduced compulsory heirs in the direct line. In the case of a foreign
ate actually DF actually given. Legacies testator, the conflict rule enunciated in Article 16 of the Civil
e given P Code applies.

Article 855.
 P a g e | 46

The share of a child or descendant omitted in a will must P50,000.00 to A and P40,000.00 eachto B and C. Thus, there is
first be taken from the part of the estate not disposed of by undistributed portion of 10,000.00. However, D was omitted. In
the will, if any; if that is not sufficient, so much as may be this case, there is no preterition since the undistributed portion
necessary must be taken proportionally from the shares of which can be used to satisfy his legitime and the remaining
the other compulsory heirs. (1080a) balance to his legitime will be taken from the legacies of ABC
proportionately. Note that reduction in ABC should only be from
Omissions Not Total
the excess of the legitime of ABC.
No preterition in case of omission of CH as may yet to recover
First approach:
his or her legitime from the undisposed balance of the hereditary
estate. Omission in this provision is not total. Hei Legac Portion charged to Portion charged
rs y Legitime to DFP
Illustrations:
A 50,00 17,500 32,500
1. Recovery from the undisposed portion of the estate
0
Testator instituted A B and C to a net hereditary estate of
B 40,00 17,500 22,500
P90,000.00 in a 1/3, 1/3 and 1/6 sharing. It left an undisposed
0
portion of 2/12 or P15,000.00. However, a legitimate son D was
omitted. In this case, there is no preterition since D’s omission C 40,00 17,500 22,500
did not impair his entitlement to the legitime because he can 0
recover it to the undisposed portion of the estate. Even more,
there is a balance left in the DFP of P3,750.00 after satisfaction Tot 130,0 52,500 77,500
of legitime. al 00
Heirs Should be Actually
legitime distributed
H Legacy xExcess ÷Total Legacy Red
A 11,250 30,000 ei charged to Legacy Charged to ucti
rs DFP DFP on
B 11250 30,000
A 32,500 7,500 77,500 3,14
C 11250 15,000
5.16
D 11250 omitted
B 22,500 7,500 77,500 2,17
7.42

90,000/2 = 75,000 C 22,500 7,500 77,500 2,17

45000 7.42

undistributed 15,000 To 77,500 7,50

balance ta 0.00
l
Net Hereditary 90,000
Estate
H Legacy D recovery Reduction of Net
ei of Legacies Shar
2. Recovery from the undisposed portion of the estate rs Legitime e
with reduction of legacies

Teastator was survived by his children ABCD. The net

hereditary estate is P 140,000.00. He gave legacies to
 P a g e | 47

A 50,000 (3,145.16) 46,8 iii. Final distribution. Give the heirs their respective
54.8 legitime and add the new amount of legacy for
4 ABC, which is the net legacy.

B 40,000 (2,177.42) 37,8 Heirs Legitime Reduced Legacies Net Share

22.5
8 A 17,500 29,354.84 46,854.84

C 40,000 (2,177.42) 37,8 B 17,500 20,322.58 37,822.58

22.5 C 17,500 20,322.58 37,822.58
8
D 17,500 17,500.00
D 17,500 17,5
00.0 Total 70,000 70,000.00
0

To 130,000 140, 3. Recovery from undisposed portion of the estate with

ta 000 reduction of shares of CH and VH
l
Testator was survived by three legitimate children ABC.The net
hereditary estate is P150,000. He gave legacies of P50,000 to
A and P 40,000 each to B and D (nephew). There is
undistributed portion of P20,000.00. C was omitted. In this case,
Second Approach: there is no preterition since the undistributed portion may
partially satisfy C’s legitime. The legacies of ABD will
i. Give D the undistributed portion of the proportionately be reduced to complete the legitime of D.
estate.(P10,000.00)
Hei Legac Portion charged to Portion charged
ii. Completion of Legitime. Reduce legacies of A, B,
rs y Legitime to DFP
and C in excess of their legitime or portion charged
to DFP. (DFP x Legacy charged to DFP ÷ Total A 50,00 25,000 25,000
Legacy distributed = Net Lagacy) 0

Heir DFP Legacy Total Net B 40,00 25,000 15,000

s distribute Legacies Legacy 0
d charged
D 40,00 40,000
to free
0
portion
Tot 130,0 50,000 80,000
A 70,00 32,500 77,500 29,354.84
al 00
0

B 70,00 22,500 77,500 20,322.58

0 He Legacy xExcess ÷Total Legacy Redu
irs charged to Legacy Charged to DFP ction
C 70,00 22,500 77,500 20,322.58
DFP
0
A 25,000 5,000 80,000 1,56
70000
2.50
 P a g e | 48

B 15,000 5,000 80,000 937. 1. Representation is available only in the descending line,
50 never in ascending and collateral
2. Recovery of representatives is limited to the legitime of
D 40,000 5,000 80,000 2,50
the predeceased or incapacitated CH
0.00
3. Representatives must not be barred to inherit from the
To 80,000 5,00 testtor by Art 992, or for any other reason disqualified
tal 0.00 or incapacitated to inherit

Repudiator cannot be represented. (Art 977)

He Lega C's recovery of Reduction of Net SECTION 3
irs cy Legitime Legacies Share
Substitution of Heirs
A 50,0 (1,562.50) 48,437
00 .50 Article 857.

B 40,0 (937.50) 39,062 Substitution is the appointment of another heir so that he

00 .50 may enter into the inheritance in default of the heir
originally instituted. (n)
C 25,000 25,000
Vacancy in the inheritance
.00
3 Contingencies affecting the heir, legatee or devisee which can
D 4000 (2,500.00) 37,500 obstruct the implementation of the testator’s testamentary
0 .00 dispositionsPIR)
To 130, 150,00 1. Predecease
tal 000 0.00 2. Incapacity
3. Repudiation

Article 856. If any of the contingencies should occur, there shall be a

A voluntary heir who dies before the testator transmits
nothing to his heirs.
A compulsory heir who dies before the testator, a person
incapacitated to succeed, and one who renounces the
inheritance, shall transmit no right to his own heirs except
in cases expressly provided for in this Code. (766a)
Representation in Testamentary Succession
VH cannot be represented. The share of predeceased or
incapacitated VH may pass by substitution, if provided by
testator, or otherwise by accretion, if appropriate, and by
intestate succession if accretion is not available.
CH may be represented by his own heirs. The right of
representation in testamentary succession is subject to three
essential limitations:
vacancy in the inheritance even if the testator faithfully complied
with all legal requirements in the execution of the will.
A vacancy in the inheritance may result in the distribution of the
vacant portion by intestacy.
3 intermediate remedies to prevent intestacy from setting in
(remedies are exclusive and successive)
1. Substitution of heirs
2. Right of representation
3. Right of accretion
Substitution of heirs entitles the testator to appoint a substitute
who shall enter into the inheritance in the default of the heir
originally instituted. In contrast, representation and accretion
prevent the occurrence of intestacy without the intervention of
the testator. It takes place when the right of the first heir expires.
However, it does not cover a fideicommissary substitution
wherein substitution takes place even if the heir originally
instituted (or legatee or devisee) is not in default. In a

fideicommissary substitution, the testator institutes two heirs
simultaneously but the beneficial use, enjoyment and
possession of the inheritance are granted to the heirs
successively.
Objective of Substitution
It is to prevent the distribution of the vacant portion of the
inheritance by intestacy (except in the case of fideicommissary
substitution. Substitution gives the testator greater flexibility and
freedom in disposing his estate by allowing the testator to
designate a substitute heir in case the instituted heir defaults.
And it prevents the estate or any part thereof from coming into
the hands of individuals who may be unwanted by the testator.
Article 858.
Substitution of heirs may be:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary. (n)
Types of Substitution
The law states four types of substitution but ultimate analysis
there are only two: simple and fideicommissary. Brief,
Compendious and reciprocal are considered mere variants of
simple.
In simple substitution, the substitute takes place of the instituted
heir who defaults (i.e PIR).
Brief if there are two or more substitutes for one instituted heir.
(Art 860)
Compendious when one substitute is appointed for two or more
instituted heirs. (Art 860)
Reciprocal is when two or more heirs are instituted and each of
them is a substitute for the others in case of default. (Art 861)
Fideicommissary Substitution (Art 863)
Article 859.
The testator may designate one or more persons to
substitute the heir or heirs instituted in case such heir or
P a g e | 49
heirs should die before him, or should not wish, or should
be incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to
which it refers, shall comprise the three mentioned in the
preceding paragraph, unless the testator has otherwise
provided. (774)
Simple Substitution
Simple Substitution is the appointment of one or more
substitutes to one or more instituted heirs.
Grounds for Substitution
1. Heir, legatee or devisee predeceased the testator or
2. Is incapacitated to inherit from the testator or
3. Repudiated the inheritance
A substitution couched in general terms without specifying the
cause shall include all three contingencies (PIR). However, if the
testator specifies what contingency should be complied, then it
should be strictly followed.
Example: Testator gave A P10,000 with B as substitute. If A PIR,
then B will substitute since it is couched in general terms.
However if testator expressly state that ‘..if A repudiates’, then
only repudiation will give effect to the substitution of B.
Article 860.
Two or more persons may be substituted for one; and one
person for two or more heirs. (778)
Brief and Compendious Substitution
In brief substitution, 2 or more substitutes take the place of one
instituted heir, legatee or devisee. The substitutes share the
inheritance equally except if the testator specified a different
basis for sharing.
Example: Testator gave A P10,000 with B and C as substitutes.
If A PIR, then B and C will substitute and will get equal share:
P5,000 each. However, if testator provided a ratio, ‘..with 4:6
sharing’ then it should be followed and give B P4,000 and C
P6,000.
In Compendious substitution, one substitute takes the place of
2 or more instituted heirs.
Example: Testator left a P10,000 bank account to A and B in a
4:6 share with C as substitute. A predeceased the testator. At
the time the testator’s death, A’s share of P4,000 shall pass to
C by compendious substitution.
 P a g e | 50

Substitution takes precedence over the right of accretion. This pass down to B and C by reason of brief substitution in the
is because substitution is a positive directive of the testator in proportion they were instituted.
respect of the disposition of a vacant portion of the inheritance.
Substitution among Compulsory Heirs (CH)
Accretion, on the other hand, vests title to the vacant portion of
the inheritance to co-heirs, co-legatees and co-devicees by Substitution should never burden the legitime (Art 904). If there
is a vacancy in the legitime, the vacant portion is distributed
operation of law. Accordingly, in filling the vacancy in the
inheritance, the directive of the testator takes precedence over either by right of representation, if applicable, or by way of
additional legitime to other compulsory heirs. In any event, the
a remedial measure provided by law.
vacant portion, excluding legitime, shall be proportionately
Conceivable is a variation of simple substitution. A testator may distributed among the substitutes. If the designated substitute is
institute 2 or more heirs, legatees or devicees, subject to the a CH, he will be entitled to such amount of the vacant portion
substitution of 2 or more persons. (excluding legitime) as may be proportionate to their respective
entitlement of the DFP.
Example: Testator left a P10,000 bank account to A and B in a
4:6 share with C and D in a 4:6 sharing as substitute. A Illustration:
predeceased the testator. At the time the testator’s death, A’s
Testator instituted ABC, legit sons with 2:2:3 sharing in the net
share of P4,000 shall pass to C and D in their proportionate
share of 4:6 or 1,600 and 2,400 by conceivable substitution. hereditary estate of P 210,000. Appointed A as substitute for B
and C, while B and C are substitutes for A. A predeceased
Article 861. testator but survived by a legitimate son D.
If heirs instituted in unequal shares should be reciprocally 1. Show testator’s intended distribution. (Original sharing)
substituted, the substitute shall acquire the share of the
heir who dies, renounces, or is incapacitated, unless it Heirs Fraction Instituted Share
clearly appears that the intention of the testator was
A 2/7 60000
otherwise. If there are more than one substitute, they shall
have the same share in the substitution as in the institution. B 2/7 60000
(779a)
C 3/7 90000
Reciprocal Substitution
Total 210,000
Reciprocal substitution is a bilateral substitution of 2 or more
heirs, legatees or devisees in the event of PIR.
Example: Testator gave A a car and B a parcel of land subject 2. Give effect to substitution by carving out the legitime to
to reciprocal substitution. If A PIR, then B is entitled to the car. A’s share that will pass down to his son, D by right of
It follows that if it is B that PIR, then A is entitled to the parcel of representation.
land. BOOM.
Chargeable to:
Substitution among Voluntary Heirs (VH) Heirs Instituted Share
Legitime DFP
Reciprocal substitution may involve more than 2 heirs, legatees
or devisees in which case the reciprocal substitution may be A 60,000 35,000 25,000
either brief or compendious.
B 60,000 35,000 25,000
Example: Testator instituted ABC for 3:2:1 in the net hereditary
estate of P120,000. A is appointed as substitute for B and C C 90,000 35,000 55,000
(Compendious); and B and C are substitutes for A (Brief). If B
Total 210,000 105,000 105,000
PIR, his share will pass down to A by reason of compendious
substitution. Same if C will PIR, then his share will pass down to
A by reason of compendious substitution. If A PIR, his share will
 P a g e | 51

3. Distribute the proportionate shares of B and D from A’s Article 862.

entitlement to DFP.
The substitute shall be subject to the same charges and
÷Combined conditions imposed upon the instituted heir, unless and
Share x testator has expressly provided the contrary, or the
shares of Share b y
Heirs of Free Vacant charges or conditions are personally applicable only to the
free substitution
Portion Portion heir instituted. (780)
portion
Applicability of Conditions to the Substitute
B 25,000 25,000 80,000 7,812.50
Substitution is similar to subrogation. The Substitute is subject
C 55,000 25,000 80,000 17,187.50 to the same charges and conditions imposed by the testator on
Total 25,000.00 the instituted heir except:
1. If the testator expressly so provided, or
2. If the charges or conditions are personal to the
4. Compute the final distribution of the estate. instituted heir, or
3. If the charges or conditions cannot be fulfilled by the
Rep
substitute.
res
Legitim Free Substit
Heirs ent Total The condition of the institution shall be inapplicable to the
e Portion ution
atio substitute if it is impossible for the substitute to comply with the
n same.
7,812.5 67,812 Article 863.
B 35,000 25,000
0 .50
A fideicommissary substitution by virtue of which the
17,187. 107,18 fiduciary or first heir instituted is entrusted with the
C 35,000 55,000 obligation to preserve and to transmit to a second heir the
50 7.50
whole or part of the inheritance, shall be valid and shall take
35, 35,000 effect, provided such substitution does not go beyond one
D
000 .00 degree from the heir originally instituted, and provided
further, that the fiduciary or first heir and the second heir
35, 25,000. 210,00 are living at the time of the death of the testator. (781a)
Total 70,000 80,000
000 00 0.00
Nature of Fideicommissary
In successive institutions, a testator seeks to retain control of his
Note: estate even after it has passed to his heirs. Under Art 777,
1. Substitution can prevent the onset of intestacy in case inheritance passes to the heirs from the moment of the testator’s
a vacancy in the inheritance occurs. death. Succession transfers ownership of the inheritance to his
heirs. Testator has nothing to control.
2. Substitution cannot burden the legitime and may thus
be applied only to a vacancy in the inheritance to the
extent the vacancy pertains to the DFP
In successive institution, a testator determines not only the
3. A substitute heir may be either a CH or VH
identity of the person who shall receive the property upon his
4. Distribution of the vacant portion of the inheritance
demise. There is, however, residual control over the property
among several substitutes follows the proportion in
bequeathed.
which they are instituted in the DFP.
Fideicommissary substitution is not a real case of substitution
but a case of limited successive institutions disguised as a
substitution. (supporting provision: Art 869)

Requisites
1. Testator institutes a first heir or bequeaths to a legatee
or devisee (the fiduciary) a specific property.
Fiduciary must be living at the time of the testator’s death and
must not suffer from any statutory disqualifications. Succession
confers title to fiduciary. Fiduciary, thus, inherits property and
acquires ownership and not mere usufructuary.
Art 869 grants testamentary usufruct. It is only when the usufruct
is granted successively to various beneficiaries that Art 863
apply.
Neither is a fiduciary a trustee of the property bequeathed. A
trustee holds legal title to the entrusted property, he does not
have beneficial rights.
In Vda de Mapa vs CA, the court ruled that there is no
fideicommissary substitution because it was not made in an
express manner either by designating the substitution, or by
imposing upon the fiduciary the obligation to preserve and to
transmit the property to the fideicommissary. A testamentary
trust operates differently from a fideicommissary substitution.
2. The testator imposes upon the fiduciary the duty to
preserve the inheritance and to transmit the same in
whole or in part to the second heir (the
fideicommissary).
Testator determines the date of transmission to the
fideicommissary, otherwise it shall take effect upon death of the
testator. The law does not require the first heir to post a security
for the delivery of the object of the fideicommissary substitution
to the second heir.
3. The substitution must not go beyond one degree apart
from the fiduciary.
The fiduciary and fideicommissary must be related to each other
within the first degree of consanguinity, which by necessity
restricts the substitution between a parent and a child.
In Ramirez vs Ramirez, the court held that the phrase “one
degree apart” pertains to the blood relationship between the
fiduciary and the fideicommissary.
4. The fiduciary and the fideicommissary must be living at
the time of the death of the testator.
Capacity to succeed requires that the fiduciary and the
fideicommissary must both be alive at the time of death of the
P a g e | 52
testator. At the vesy least, fideicommissary be conceived at the
time of the testator’s death (Art 40).
A fiduciary and fideicommissary inherit simultaneously from the
testator, the fideicommissary does not inherit from the fiduciary.
Also, their respective rights to use, possession and enjoyment
of the property are successive. They are not co-owners even if
both acquires title. Moreover, fiduciary gets first dibs of the use,
possession and enjoyment (UPE) of the property over the
fideicommissary. However, the fideicommissary gets ultimate
advantage over fiduciary if at the designated time of substitution
or upon demise of the fiduciary, fideicommissary acquires
absolute title to the property free and clear of the substitution, to
the exclusion of the fiduciary and its heirs.
If fiduciary PIR, fideicommissary gets the property as an
instituted heir but if the fideicommissary PIR, the fiduciary will
receive the inheritance free and clear of the fideicommissary
substitution.
5. The substitution must be made in an express manner
by naming the substitution as fideicommissary,; or in
alternative, the testator must explicitly impose upon the
fiduciary the duty to preserve the inheritance and to
transmit the same to the fideicommissary.
2 ways to constitute
i. By naming the substitution fideicommissary and
ii. By explicitly imposing upon the first heir the duty to
preserve the inheritance and to transmit the same to
the second heir.
In Crisologo vs Singson, that the essence of a
fideicommissary substitution is the imposition of an obligation on
the part of the first heir to preserve and to transmit the property
to the second heir upon the former's death or upon the
happening of a particular event.
Article 864.
A fideicommissary substitution can never burden the
legitime. (782a)
Consistent with 872, and principle in 904.
Article 865.
Every fideicommissary substitution must be expressly
made in order that it may be valid.

The fiduciary shall be obliged to deliver the inheritance to
the second heir, without other deductions than those which
arise from legitimate expenses, credits and improvements,
save in the case where the testator has provided otherwise.
(783)
Refer to Art 863 in relation to requisites.
Article 866.
The second heir shall acquire a right to the succession
from the time of the testator's death, even though he should
die before the fiduciary. The right of the second heir shall
pass to his heirs. (784)
Fideicommissary inherits from the testator and not from the
fiduciary. It is sufficient that fideicommissary should survive the
testator, even if he should predecease the fiduciary. In the latter,
the heirs of fideicommissary shall acquire the property on the
date designated for substitution, or upon demise of the fiduciary.
Article 867.
The following shall not take effect:
(1) Fideicommissary substitutions which are not made in an
express manner, either by giving them this name, or
imposing upon the fiduciary the absolute obligation to
deliver the property to a second heir;
(2) Provisions which contain a perpetual prohibition to
alienate, and even a temporary one, beyond the limit fixed
in article 863;
(3) Those which impose upon the heir the charge of paying
to various persons successively, beyond the limit
prescribed in article 863, a certain income or pension;
(4) Those which leave to a person the whole or part of the
hereditary property in order that he may apply or invest the
same according to secret instructions communicated to
him by the testator. (785a)
867 reinforces 863.
Article 868.
The nullity of the fideicommissary substitution does not
prejudice the validity of the institution of the heirs first
designated; the fideicommissary clause shall simply be
considered as not written. (786)
P a g e | 53
The substitution in favour of the fideicommissary is an accessory
to the institution of the fiduciary, the nullity of the substitution will
not result in the nullity of the institution.
Article 869.
A provision whereby the testator leaves to a person the
whole or part of the inheritance, and to another the usufruct,
shall be valid. If he gives the usufruct to various persons,
not simultaneously, but successively, the provisions of
article 863 shall apply. (787a)
Distinction between Naked Title and Usufruct
2 components of ownership:
1. Naked Title
2. Usufruct
Both are separable and may be dealt with separately by the
owner. Under 869, it specifically deals with a testamentary
disposition whereby the testator bequeaths naked title to one
heir and the usufruct to another. They are not co-owners and
not a fideicommissary substitution. The recipient of naked title
may not claim of usufruct, and vice versa. Unless the testator
otherwise provides. However, upon demise of usufructuary, the
usufruct is extinguished unless the contrary intention appears.
Statutory Limitation on Successive Usufructs
If testator grant the usufructuary rights to the property to 2 or
more persons successively, the limitation imposed by Art 863
must be complied with.
Art 869 requires:
i. Because the first usufructuary is the fiduciary and the
second is the fideicommissary, they must be related to
each other within the first degree of consanguinity
ii. Both the first and second usufructuaries must be alive
at the time of the death of the testator
iii. First usufructuary must preserve the usufruct and must
transmit the same to the second usufructuary
Successive usufruct
i. Governed by Art 863
ii. Both first and second usufructuaries must be
capacitated to inherit
iii. Second does not inherit from first
iv. They are not co-usufructuaries

v. Second acquires right to enjoy the usufruct only upon
the death of the first usufructuary, unless the testator
prescribed a different period.
vi. The nullity of the institution of the second usufructuary
does not affect the institution of the first usufructuary
who shall receive the usufruct free and clear of the
substitution.
vii. The nullity of the institution of the first usufructuary
gives the second the right to enjoy the usufruct
immediately.
Article 870.
The dispositions of the testator declaring all or part of the
estate inalienable for more than twenty years are void. (n)
A perpetual prohibition to alienate the inheritance is void. The
restrictions imposed by the testator must be reasonable and
must not unduly curtail the exercise of and enjoyment by the
heirs of the essential attributes of ownership.
In Rodriguez vs CA, a testamentary disposition prohibiting the
alienation of the hereditary estate for a period exceeding
twenty years is void. However, the Court has ruled that the
nullity refers not to the prohibition to alienate, but to the
prohibition in excess of the first twenty years.
SECTION 4
Conditional Testamentary Dispositions
and Testamentary Dispositions With a
Term
Article 871.
The institution of an heir may be made conditionally, or for
a certain purpose or cause. (790a)
Institution of heirs is a personal act by the testator by virtue of
which he designates the person or persons who are to inherit
his estate. The law grants the testator the right to institute an
heir for a certain purpose or cause . This is referred as modal
institution.
Conditional Institution
A condition refers to a future and uncertain event upon the
happening of which the acquisition of rights or the
P a g e | 54
extinguishment or loss of those which have been acquired is
made to depend. (Art 1181) Institution may be subject to a
condition. A conditional institution, legacy and devise has two
important variants: the suspensive and the resolutory.
1. Institution subject to a suspensive condition (SusCO)
Legacy or devise is dependent on the happening of a future and
uncertain event.
2. Institution subject to a resolutory condition (ResOC)
It is a future and uncertain event upon the happening of which
the institution, legacy or devise is terminated. If the Resolutory
Condition happens at anytime after the death of the testator or
within the period specified by the testator, the instituted heir
loses the right to the inheritance and must return the same to
the estate for proper disposition.
Requisites of Conditional Institution
1. Condition must be expressly stated in the will
The express constitution of the condition mirrors an essential
feature of the parol evidence rule in Section 3, Rule 130 of RoC.
(term agreement includes wills)
2. Condition must be clear
It must be clear and understandable. In case of ambiguity, the
rules of interpretation (including, without limitation, those found
in Arts 788, 789, 790, and 791) may be resorted to for the
purpose of ascertaining the true testamentary intent. If still
ambiguous, condition shall be considered as impossible and
deemed not imposed. However, institution remains valid.
Applying the rule on accession by analogy, the nullity of the
condition (the accessory) does not necessarily include the nullity
of the institution (the principal).
Article 872.
The testator cannot impose any charge, condition, or
substitution whatsoever upon the legitimes prescribed in
this Code. Should he do so, the same shall be considered
as not imposed. (813a)
Exclusion of the Legitime
Testator’s power to impose conditions on testamentary
disposition excludes the legitime. (Also Art 904) CH must
receive legitime free and clear from any and all burdens,
encumbrances, conditions or substitutions of any kind

whatsoever. A breach on this proscription does not void the
disposition but the condition is deemed not imposed.
Article 873.
Impossible conditions and those contrary to law or good
customs shall be considered as not imposed and shall in
no manner prejudice the heir, even if the testator should
otherwise provide. (792a)
Impossible Conditions
These are:
 Physically impossible to fulfil
 Contrary to law, morals, public order or public policy
 Particularly impossible to the beneficiary
This refer to both positive and suspensive (those that require the
performance of an affirmative act and which must be
accomplished prior to receiving the inheritance.) If negative or
resolutory, condition may be ignored.
Effect of an Impossible Condition
The law expressly provides that an impossible condition which
is attached to a testamentary disposition is deemed not imposed.
Thus, it will not prejudice the heir who, despite the nonfulfillment,
will receive the inheritance even if the testator should provide
otherwise.
Compared to Impossible Condition in an Obligation
Art. 1183. Impossible conditions, those contrary to
good customs or public policy and those prohibited by
law shall annul the obligation which depends upon
them. If the obligation is divisible, that part thereof
which is not affected by the impossible or unlawful
condition shall be valid.
The condition not to do an impossible thing shall be
considered as not having been agreed upon. (1116a)
The effect of impossible condition in an obligation is to annul the
obligation to which the condition is attached; nullity is not
confined to the condition but also in the promise. When the
obligation is nullified, neither party can demand the fulfilment of
any obligation resulting therefrom.
In succession, the effect of an impossible condition to a
testamentary disposition is similar to the effect of the impossible
condition to a donation. Thus, in Art 727 “illegal or impossible
conditions in simple and remuneratory donations shall be
P a g e | 55
considered as not imposed”. Testamentary dispositions are
gratuitous transmissions of property. Any deterrence will result
to setting aside that which impedes the effectivity of the
disposition.
Time of Impossibility
There are conditions which are clearly impossible to fulfil at any
point in time. Such are obviously void and not deemed imposed.
However, there are conditions that are,: 1. May be impossible at
the time of the execution of the will but become impossible after
the death of the testator, or 2. May be impossible at the time of
the execution of the will but become possible after the death of
the testator. The nullification of the impossible condition
depends upon the time of reckoning such impossibility.
Article 874.
An absolute condition not to contract a first or subsequent
marriage shall be considered as not written unless such
condition has been imposed on the widow or widower by
the deceased spouse, or by the latter's ascendants or
descendants.
Nevertheless, the right of usufruct, or an allowance or some
personal prestation may be devised or bequeathed to any
person for the time during which he or she should remain
unmarried or in widowhood. (793a)
Condition not to Marry
It is generally considered void to prohibit one to marry because
it violates a person’s right to choose his or her status.
Condition Prohibiting a Subsequent Marriage
It may be permitted under the exception that the testator
imposed on his widow or widower by the ascendants or
descendants of the deceased spouse, shall be valid. (Note
nonimpairment of legitime)
Justification for the Prohibition
1. Family affection
2. The often tumultuous nrelationship between the
children of the first marriage and the step-parent, or the
children of the first marriage and the children of the
second marriage
3. To prevent the property that once belonged to the
deceased spouse from being enjoyed by, or worse,
from being transferred to, intentionally or accidentally,
the spouse of the second marriage.

Who may Impose the Prohibition
1. By Deceased spouse or by the ascendants of the
deceased spouse on the Surviving Spouse
2. By Descendants of the deceased spouse
Relative Prohibition to Marry
It is generally valid because it does not totally deprive the heir/s
of his or her right to choose his or her status. Also, where
prohibition is relative to person, time, and place, it may be valid
provided the prohibition is not inordinately onerous.
Condition Imposing Marriage
A condition that imposes marriage to a specific person or to
anyone in general is not explicitly prohibited , and generally valid.
Except if it falls under Art 873 on impossible condition.
Testamentary Gifts while Remaining Single or in a State of
Widowhood
It is valid. Thus, it is deemed as a testamentary gifts until
contracting marriage is deemed temporary gifts by the testator
to the single person or to a widow or widower. Testamentary gift
is in the nature of an institution subject to a resolutory condition.
Article 875.
Any disposition made upon the condition that the heir shall
make some provision in his will in favor of the testator or of
any other person shall be void. (794a)
Dispocicion Captatoria
This provision refers to the testamentary disposition called
Dispocicion Captatoria. The testator makes a conditional
testamentary disposition in favour of an heir, a legatee or
devisee, the condition being that the heir, legatee or devisee
shall make some provision in his will in favour of the testator or
any other person designated by the testator. This is a void
provision – not just the condition.
Agreements not Constituting a Dispocicion Captatoria
A separate agreement, not part of the will, between the testator
and the heir, legatee or devisee may not be a dispocicion
captatoria, even to the effect that the heir, legatee or devisee
will make some provision in his will in favour of the testator or its
nominee.
Article 876.
P a g e | 56
Any purely potestative condition imposed upon an heir
must be fulfilled by him as soon as he learns of the
testator's death.
This rule shall not apply when the condition, already
complied with, cannot be fulfilled again. (795a)
Testamentary Disposition with Positive, Potestative and
Suspensive Condition
The heir, legatee or devisee must personally fulfil the condition
as soon as he learns of the testator’s death.
The condition referred to must be:
1. Potestative, where the fulfilment of the condition is
purely dependent on the will of the heir, legatee or
devisee;
2. Positive, where the condition requires the heir, legatee
or devisee to give or to do something,
3. Suspensive, or until the fulfilment of the condition, the
heir, legatee or devisee cannot enter into the
inheritance.
Prior compliance
The potestative condition must be fulfilled after succession has
opened. Fulfillment of the condition during the lifetime of the
testator is generally not considered compliance with the
condition. While the testator is alive, there is nothing to accept
nor inheritance nor condition to be fulfilled. Prior fulfilment is
deemed sufficient if the potestative condition has been fulfilled
during the testator’s lifetime and the same cannot be fulfilled
again.
Article 877.
If the condition is casual or mixed, it shall be sufficient if
it happen or be fulfilled at any time before or after the death
of the testator, unless he has provided otherwise.
Should it have existed or should it have been fulfilled at the
time the will was executed and the testator was unaware
thereof, it shall be deemed as complied with.
If he had knowledge thereof, the condition shall be
considered fulfilled only when it is of such a nature that it
can no longer exist or be complied with again. (796)
Testamentary Dispositions with Casual and Mixed
Conditions
 P a g e | 57

A casual condition does not depend on the will of the heir, give that which has been prohibited by the testator, and that
legatee or devisee, but upon chance, l;uck, and/or upon the will in case of contravention he will return whatever he may
of a third person over whose will the heir, legatee or devisee has have received, together with its fruits and interests. (800a)
no control.
Negative Potestative Condition
The casual or mixed condition must be suspensive. In both, the
A negative potestative condition whose fulfilment is wholly
element of chance/luck is prominent. The fulfilment of condition,
and consequently the effdicacy of the testamentary disposition dependent upon the will of the heir, legatee or devisee; and the
negative condition is an imposition on the heir, legatee or
to which such condition is attached, are wholly or partly
devisee not to do something, both of which are within the power
dependent on good fortune.
of the heir, legatee or devisee to comply with.
Time of Fulfillment of the Condition
Effect of Negative Potestative Condition
In both, it may be fulfilled before or after the death of the testator
The breach of a negative potestative condition results in the
premised on the condition is not totally within the control of the
extinguishment of the title to the property and consequently the
heir, legatee or devisee. Time of fulfilment is irrelevant.
obligation to return the same to the estate of the testator for
Article 878. proper disposition. Returning the property includes the fruits. In
sum, it is deemed not to have acquired the property at all.
A disposition with a suspensive term does not prevent the
instituted heir from acquiring his rights and transmitting The Security
them to his heirs even before the arrival of the term. (799a)
The law does not specify what type of security must be given. If
Definition of a term unable to give one, the property shall be put under ad
ministration during the lifetime of the heir, legatee or devisee.
Term is a future and certain event upon which the demandability
of a testamentary disposition is made to depend. It may be
suspensive or resolutory.
Suspensive Term – is a future and certain event which defers
Article 880.
the demandability of the testamentary disposition until the term
arrives. If the heir be instituted under a suspensive condition or
term, the estate shall be placed under administration until
Resolutory Term – is a future and certain event the happening
of which terminates the efficacy of the testamentary disposition. the condition is fulfilled, or until it becomes certain that it
cannot be fulfilled, or until the arrival of the term.
Effect of a Suspensive Term
The same shall be done if the heir does not give the security
It does not prevent the instituted heir from acquiring the required in the preceding article. (801a)
inheritance and transmitting the same to his heirs before the
Conflict with Art 885
arrival of the term. Also, it does not delay the acquisition of the
heir to its inheritance. It merely defers the demandability. Art 880 provides thatif a testamentary disposition is subject to
either a suspensive term or condition, the property shall be
Effect of a Resolutory Term
placed under administration until the suspensive condition is
It entitles the heir to claim the inheritance as soon as it becomes fulfilled or the suspensive term arrives.
available. Whenthe resolutory term arrives, the right to the
Art 885 interim solution, thus “the legal heir shall be considered
inheritance expires. The heir must return the inheritance to the
as called to the succession until the arrival of the period or its
estate for proper disposition.
expiration”.
Article 879.
Effect of a Suspensive Term and Suspensive Condition
If the potestative condition imposed upon the heir is Compared
negative, or consists in not doing or not giving something,
he shall comply by giving a security that he will not do or

When institution is subject to s suspensive condition, the
effectivity of the testamentary disposition is deferred until the
fulfilment of the condition. In testamentary disposition subject to
a suspensive condition, the acquisition of title to the inheritance
is contingent upon the happening of the suspensive condition.
Administration of the Property in cases of Disposition
subject to a Negative Potestative Condition
Testamentary disposition subject to Negative POtestative
Condition, the beneficiary must provide a security that he shall
not do or give that which is prohibited by the testator. If breached,
return the property including the fruits and interest.
Second par of 879: if the beneficiary of a testamentary
disposition that is subject to a negative potestative condition is
unable to post the security, the property subject matter shall be
placed to administration.
Application of Article 880
3 Specific Circumstances that the interim solution of placing
property under administration is applicable
1. If the condition to the testamentary disposition is both
negative and potestative and the heir, legatee or
devisee is unable to post the required security (causion
muciana)
2. If the testamentary disposition is subject to a
suspensive condition, pending the fulfilment of the
same and
3. If an heir fails to deliver the security required under the
modal institution (Art 882)
Article 881.
The appointment of the administrator of the estate
mentioned in the preceding article, as well as the manner of
the administration and the rights and obligations of the
administrator shall be governed by the Rules of Court.
(804a)
Governing Law
When placed under administration, Rules 78 to 87 of the Rules
of Court shall apply in matters related to the administrator.
Article 882.
The statement of the object of the institution, or the
application of the property left by the testator, or the charge
imposed by him, shall not be considered as a condition
unless it appears that such was his intention.
P a g e | 58
That which has been left in this manner may be claimed at
once provided that the instituted heir or his heirs give
security for compliance with the wishes of the testator and
for the return of anything he or they may receive, together
with its fruits and interests, if he or they should disregard
this obligation. (797a)
Modal Institution and its Effects
882 refers to modal institution. In modal institution, the testator
specifically states:
1. The object of the institution
2. The application of the property given
3. The charge imposed on the recipient
It imposes a specific obligation which the heir, legatee or
devisee must comply with but it does not defer or suspend
efficacy of the institution contrary to a suspensive condition.
In Rabadilla v CA, Justice Purisima concluded that in case of
doubt, the institution must be deemed modal and not conditional.
Following his discussion, he noted that while a modal institution
obliges, it does not suspend the effectivity of the institution. On
the other hand, a conditional institution suspends the efficacy of
the institution, although it does not impose any obligation on the
instituted heir.
Constitution of a mode
To be considered modal, compliance with:
1. Object of the institution or
2. Application of the property subject matter or
3. Charge imposed on the recipient of the property, must
be mandatory.
Rules of Interpretation
In case of ambiguity:
1. Ambiguity whether modal or conditional, it is modal. In
modal institution, the recipient will automatically
receive the gift, subject to posting of security.
2. If there is doubt if the object of the institution, the
application of the property, or the charge imposed on
the recipient is a mode or a mere suggestion, consider
it as a mere suggestion.
Enforcement of the Mode
 P a g e | 59

The beneficiary of a mode may be a When without the fault of the heir, an institution referred
to in the preceding article cannot take effect in the exact
1. Specific person/s
manner stated by the testator, it shall be complied with in
2. Or undetermined persons (poor in general) or a manner most analogous to and in conformity with his
3. No particular person at all wishes.
Modal Institution with Conditional Institution If the person interested in the condition should prevent its
fulfillment, without the fault of the heir, the condition shall
Modal Conditional
be deemed to have been complied with. (798a)
Institution Institution
Substantial Complaince of a Modal Institution
1. as to effect of Forfeiture of gifts including
breach fruits and insterests. Substantial compliance is accepted if heir, legatee or devisee
cannot, without fault, comply with the exact manner
2. as to posting of required for compliace of contemplated by the testator.
security obligation and resolutory
condition Waiver of Benefit

3. As to demandable by if suspensive, Compliance is excused if a particular person waived his right

thereto.
demandability of recipient at receipt of gift
the gift once upon Prevention Principle
fulfillment of
If the fulfilment of the obligation, imposed by the modal
condition. If
institution is deliberately or maliciously prevented by the
resolutory,
intestate heirs of the testator who stand to benefit from the non
immediately fulfilment (which would result in forfeiture of gifts with fruits and
demandable. interests), the second paragraph of 883 will apply. The principle
4. As to the imposes on the it suspends of law is referred to as the prevention principle.
imposition of an part of the the efficacy Article 884.
obligation recipient to of the
comply with institution Conditions imposed by the testator upon the heirs shall be
the mode, it but does not governed by the rules established for conditional
obligations in all matters not provided for by this Section.
does not obligate the
(791a)
however beneficiary
suspend the Article 885.
efficacy of the
The designation of the day or time when the effects of the
gift.
institution of an heir shall commence or cease shall be valid.
In both cases, the legal heir shall be considered as called
Net effect of a Modal Institution to the succession until the arrival of the period or its
expiration. But in the first case he shall not enter into
If there is breach, institution is terminated and the recipient is possession of the property until after having given
under a legal obligation to return the gift, together with fruits and sufficient security, with the intervention of the instituted
interests, to the legal heir. heir. (805)
The Security Testamentary Disposition with a Term
Modal heir required to post security to assure compliance with 885 refers to testamentary disposition with either suspensive or
testator’s wishes. resolutory term. Both are valid. If testamentary disposition is to
Article 883. take effect from a certain day (ex die), the heir legatee or
 P a g e | 60

devisee, while they may have inherited, is not entitled to demand The Security
delivery of the gift until the arrival of the day specified by the
Interim heirs who are called to succession in institution ex die
testator. On the other hand, if a testamentary disposition is to be
are required to post security in favour of instituted heir before
effective only up to a certain day (in diem), the heir, legatee or
possession. The posting of security is a condition precedent.
devisee may demand the delivery of the gift upon completion of
the required formalities, but he or she loses the right therto upon
arrival of the day specified by the testator.
For ease of reference, order of intestate succession that
Disposition of the Property Before the Arrival of the would govern the selection of the interim heirs:
Suspensive Term
1. If testator were a legitimate child
In an institution ex die, the legal or intestate heirs of the testator
are considered called to succession until the arrival of the term. Priority Intestate Heir
However, the interim heirs are required to give the instituted heir
sufficient security prior to possession. The security is meant to 1 Legitimate children and other
assure that upon the arrival of the term, the legal or intestate legitimate descendants
heirs of the testator shall peacefully surrender possession of the
property to the instituted heir, failing which, the latter may 2 Indefault of the foregoing,
recover to the security. legitimate parents and other
legitimate ascendants
Disposition of the Property upon the Arrival of the
Resolutory Term 3 Illegitimate children and the
legitimate descendants of the latter
The law provides that the legal or intestate heirs of the testator
are called to the succession upon the expiration of the period 4 Surviving Spouse
given to the instituted heir; but the instituted heir is not required
5 Legitimate brothers, sisters,
by law to give security to the legal or intestate heirs.
nephews and nieces
Appointment of an Heir Before the Arrival or at the
Expiration of the Period 6 Other legitimate collateral relatives
up to the fifth civil degree
An institution ex die creates a vacuum in the inheritance prior to
the arrival of the term, an institution in diem creates the same 7 The State
vacuum after the expiration of the term. 885 provides a simple
solution, the legal heir shall be considered as called to the
succession until the arrival of the period or its expiration. 2. If testator were an illegitimate child
Title of the property
Priority Intestate Heir
Institution ex die, instituted heir inherits from the testator from
1 Legitimate children and other
the moment of death. However, demandability of inheritance is
legitimate descendants
deferred until the arrival of such term. The delivery of inheritance
is suspended; and The intestate heir is called to succession until 2 Illegitimate children and the
arrival of the term. In the interim, the intestate heir acquires title legitimate or illegitimate
to the subject property. descendants of the latter
Institution in diem, the instituted heir inherits from the testator 3 In default of those falling within the
and thus acquires title to the property at the time of the death of
first or second priorities, the
the testator. However, upon arrival of the term, the instituted heir
illegitimate parents
loses all rights and must turn over the property to the instestae
heirs. The title of the instituted heir to the property is subject to 4 Surviving Spouse
a resolutory term.

5 Illegitimate brothers and sisters
6 The State
SECTION 5
LEGITIME
Article 886
Legitime is that part of the testator's property which he
cannot dispose of because the law has reserved it for
certain heirs who are, therefore, called compulsory heirs.
Concept
The legitime is a portion of the decedent’s estate which the law
earmarks for the compulsory heirs.
Testator’s relative freedom to control the disposition is to a large
restrained by 886 which compels him to preserve and deliver
the legitime to compulsory heirs.
“which he cannot dispose of”
- is misleading in the sense that it implies a prohibition
to dispose the legitime;
- the fact is the testator can dispose his entire estate
including the legitime
“one who has compulsory heirs may dispose of his estate
provided he does not contravene the provisions of this Code
with regard to the legitime of said heirs” (Art. 842(2))
- Thus, a testator who disposes his entire estate needs
only to ensure that he gives his compulsory heirs the
minimum amounts respectively due them as legitime.
“the preterition of one, some, or all of the compulsory heirs in
the direct line, whether living at the time of the death of the
execution of the will or born after the death of the testator, shall
annul the institution of heirs, but the devises and legacies shall
be valid as they are not inofficious.” (Art. 854)
- If indeed testator cannot dispose the legitime, then
there could hardly be a case of preterition except in a
case of a posthumous child (one born after the death
of the testator).
P a g e | 61
“any compulsory heir to whom the testator has left by any title
less than the legitime belonging to him may demand that the
same be fully satisfied” (Art. 906)
- This confirms the testator’s ability to dispose his entire
estate, but if, in the process, a compulsory heir is
shortchanged, the latter may demand that his legitime
be fully satisfied.
“testamentary dispositions that impair or diminish the legitime of
the compulsory heirs shall be reduced on petition of the same,
insofar as they may be inofficious or excessive” (Art.907)
- Again indicates that the testator disposed his estate in
a manner that impaired the legitime of a compulsory
heir
- The compulsory heir may petition that the dispositions
be reduced or abated to the extent that they may be
inofficious or excessive
“should a person make a partition of his estate by an act inter
vivos, or by will, such partition shall be respected, insofar as it
does not prejudice the legitime of the compulsory heirs.”
(Art.1080 (1))
- In partition inter vivos, the testator is not precluded
from disposing his entire estate including the legitime
of the compulsory heirs
Therefore, the legitime is a specified portion of the estate of a
deceased person which is reserved for the compulsory heirs as
the latter’s minimum share of the inheritance.
It is error to assert that a testator cannot dispose the legitime.
In Dizon-Rivera v. Dizon the SC said:
“Oppositors err in their premises, for the adjudications and
assignments in the testatrix’ will of specific properties to specific
properties to specific heirs cannot be considered all devises, for
it clearly appear from the whole estate that her clear intention
was to partition her whole estate through her will.”
In sum, testator can and may dispose the entire estate including
the legitime. All that Art. 886 requires is that compulsory heirs
should be given the legitime at the very least.
Article 887
The following are compulsory heirs:

(1) Legitimate children and descendants, with respect
to their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate
children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural
children by legal fiction;
(5) Other illegitimate children referred to in article 287.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not
excluded by those in Nos. 1 and 2; neither do they exclude
one another.
In all cases of illegitimate children, their filiation must be
duly proved.
The father or mother of illegitimate children of the three
classes mentioned, shall inherit from them in the manner
and to the extent established by this Code.
Classification of heirs
Two basic categories
Essential Qualifications
1. Testamentary Heirs – they inherit by virtue of a duly
probated will
a. Voluntary heirs – inherit solely by the express will
of the testator
b. Compulsory heirs – heirs to whom the legitime is
reserved; unless lawfully disinherited, they inherit
at least to the extent of the legitime
2. Intestate Heirs
They inherit from a decedent who dies without having
executed a valid and operative will.
- Blood relatives and surviving spouse of the testator
who are called to succession by law
- Intestate heirs inherit only if decedent did not leave a
valid and operative will while a compulsory heir is
called to succeed whether or not the decedent left a will
Sub-classifications of compulsory heirs:
(a) Primary Compulsory Heirs (PCH) – principal
beneficiaries of the estate who exclude the
secondary compulsory heirs and enjoy preference
over other compulsory heirs
 Legitimate children
 Adopted children fall within the
category of legitimate children
P a g e | 62
 They exclude the parents and other
ascendants of the decedent
(whether legitimate of illegitimate)
(b) Secondary Compulsory heirs (SCH)- they
succeed only in default of PCH
 Legitimate parents and other
legitimate ascendants
 Illegitimate parents, as secondary
compulsory heirs, are treated more
restrictively because they inherit
only if the decedent does not have
legitimate or illegitimate
descendants.
(c) Concurring Compulsory Heirs (CSH) – refer to
heirs who succeed concurrently with primary or
secondary compulsory heirs
 Surviving spouse and illegitimate
children
NOTE: Collateral blood relatives (brothers, sisters,
nephews, nieces, uncles, aunts and cousins) are not
compulsory heirs
1. Paragraph 1 of Art.886 should be qualified as:
“Legitimate children and legitimate descendants, with
respect to their legitimate parents and legitimate
ascendants.”
“An illegitimate child has no right to inherit ab intestado from
the legitimate children and relatives of his father or mother;
nor shall such children or relatives inherit in the same
manner from the illegitimate child.” (Art.992)
- Bilateral disqualification between members of the
legitimate family and members of the illegitimate family
from inheriting ab intestado from each other
- Under 992, an illegitimate child cannot inherit from the
legitimate relatives of his illegitimate father or mother
- If an illegitimate child’s father/mother is legitimate, he
cannot inherit from his grandparents from either
maternal or paternal line
2. Paragraph 2 of Art. 886 should be qualified as follows:
“In default of the foregoing, legitimate parents and
legitimate ascendants, with respect to their legitimate
children and legitimate descendants.
Under 992, an illegitimate ascendant cannot inherit
from the legitimate children and descendants of his
own illegitimate child.

3. The grant of successional rights to a widow or widower
is premised upon a prior valid marriage with the
decedent.
- A surviving common law spouse is not a widow or
widower and therefore not a compulsory heir
- A person whose marriage with the decedent has been
annulled or judicially declared null and void is not a
surviving spouse and consequently not a widow or
widower for the purpose of succession
4. The marriage between the spouses is not terminated
by a decree of legal separation.
- They remain married to each other
- However, the spouse who gave cause for legal
separation is disqualified to inherit from the innocent
spouse by intestate succession.
- Provisions in favor of the offending spouse made in the
will of the innocent spouse shall be revoked by
operation of law (Art. 63 FC)
- The innocent spouse is a compulsory heir of the guilty
spouse
5. Paragraphs 4 and 5 of Art.887 makes a distinction
among natural, natural by legal fiction, and spurious
children.
- Amended by Art. 165 Family Code
- Based on the sub-classification of illegitimate children
in the Civil Code
- Repealed by Family Code which provides for a single
class of illegitimate children
“Children conceived and born outside of a valid marriage
are illegitimate, unless otherwise provided in this code.”
(Art.165 FC)
Illegitimate children inherit from their illegitimate parents without
distinction as to class.
“The legitime of each illegitimate child shall consist of one-half
of the legitime of a legitimate child” (Art.176 FC)
Components of the Estate of a Deceased Person
Two parts
a. Strict legitime (SP) – ½ of the net hereditary estate
- reserved for the legitimate children and other legitimate
descendants as PCH
- in default of them, the strict legitime is given to
legitimate parents and other legitimate ascendants as
SCH
b. Free portion (FP)
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- From where he legitime of the concurring compulsory
heirs is taken
- The balance after paying the legitime of concurring
compulsory heirs is the disposable free portion (DFP)
Article 888
The legitime of legitimate children and descendants
consists of one-half of the hereditary estate of the father
and of the mother.
The latter may freely dispose of the remaining half, subject
to the rights of illegitimate children and of the surviving
spouse as hereinafter provided.
Rosales v. Rosales
A widow is not an intestate heir of her mother-in-law.
Legitime of Legitimate Children
Strict legitime is reserved for the legitimate children and
legitimate descendants.
It is divided equally among the legitimate children and/or
legitimate descendants.
If only one legitimate or adopted child, the strict legitime pertains
solely to that child.
A legitimate child whose legitime is impaired by disposition
made by his or her parents, whether by an act inter vivos or
mortis causa, is entitled to its completion.
Francisco v. Francisco-Alfonso
Illustration on how a father supposedly attempted to deprive his
legitimate daughter of the legitime.
Gregorio sold a property to his two illegitimate daughters under
a kasulatan.
SC: The kasulatan was simulated. No consideration for the
contract of sale. The illegitimate daughters (market vendor and
cashier at a night club) had no source of income in 1983 when
they bought the property.
Even if not simulated, transaction affected Aida’s legitime (as
legitimate daughter) to prevent her from claiming her legitime
and rightful share in the property.
Observations on Francisco
Erroneous in many respects:
 P a g e | 64

- Absolutely simulated contract – parties do not intent to Illustration

be bound at all (VOID)
(1) Succession by Right of Representation
- Relative simulation of contract – mere concealment of
the true agreement between the parties (may be VALID)
1. Nothing unlawful with Gregorio’s simulated
conveyance of the lots
- Intended to donate
- Did not complain that he did not receive the purchase
price for 7 years
- Should have been construed as a relatively simulated
contract of sale
- A relative simulation when it does not prejudice a third
person and is not intended for any purpose contrary to (2)
law, morals, good customs, public order or public policy, Succession in One’s Own Right
binds the parties to their real agreements.
2. No inheritance or legitime yet to which Aida was
entitled.
- Gregorio was free to dispose his property.
- Legitime could have only been impaired only upon
death of Gregorio
- Remedy is to seek collation of donation
3. No basis on the malicious intention in making the
conveyances to his illegitimate daughters.
4. Premature declaration of impairment of legitime
- Action is for annulment of sale with damages
- Aida’s legitime is to be computed in accordance with NOTE: if all legitimate children (or only legitimate child)
908 (after determination of gross estate, payment of repudiates the inheritance of the decedent, succession
unpaid debts and taxes and the addition of the will flow to the legitimate descendants in the nearest
collationable donations to the illegitimate daughters) degree where grandchildren will inherit in their own
right
Successional Rights of Legitimate Descendants
Legitimate Children Exclude Legitimate Parents
Art. 888 refers to the legitimate descendants other than the
legitimate children. (grandchildren, great-grandchildren and A legitimate or an adopted child excludes the parents or other
beyond) legitimate ascendants from the inheritance of the decedent.

They inherit in two capacities: Baritua v. CA

i. By representation The petitioners were correct in settling their obligation for the
ii. In their own right death of Bienvenido with his wife Alicia as widow of Bienvenido
and natural guardian of their lone child because they are the
They inherit by right of representation in the following cases: proper successors in interest. Parents of Bienvenido will only
(DIP) succeed if he dies without a legitimate descendant.
(1) Predecease – legitimate parent predeceased the The Disposable Free Portion (DFP)
decedent
(2) Incapacity – legitimate parent incapacitated to inherit The DFP may be disposed by the testator by will.
from decedent Article 889
(3) Disinheritance – legitimate parent was disinherited by
decedent
 P a g e | 65

The legitime of legitimate parents or ascendants consists Legitimate ascendants (other than parents) inherit in their own
of one-half of the hereditary estates of their children and right if both the parents of the decedent cannot inherit because
descendants. they either: (DRIP)
The children or descendants may freely dispose of the (1) Predecease the decedent;
other half, subject to the rights of illegitimate children and (2) Were Incapacitated to inherit from the decedent;
of the surviving spouse as hereinafter provided. (3) Have Repudiated the inheritance of the decedent; or
(4) Were Disinherited by the decedent
Legitimate Parents as Secondary Compulsory Heirs
No Right of Accretion
- In default of legitimate or adopted children of decedent.
- Result of the rule of proximity where the surviving If one of the parents is unable to succeed, the vacant half share
ascendants nearest in degree exclude more remote shall pertain to the other parent.
surviving ascendants
- Not by right of accretion
- Legitimate parent exclude legitimate grandparent
“Among the compulsory heirs the right of accretion shall take
Concurring Compulsory Heirs
place only when the free portion is left to two or more of them,
Surviving spouse and illegitimate children will concur with the or to any one of them and to a stranger.” (Art.1021)
legitimate parents or ascendants.
- Right of accretion applies only to the disposable free
Strict legitime – legitimate parents/ascendants portion never to the legitime
- Inheriting parent gets he entire legitime in his own right
Free portion – surviving spouse and/or illegitimate children
under 890
Article 890
Succession Per Stirpes
The legitime reserved for the legitimate parents shall be
Whenever legitimate ascendants of the same degree inherits,
divided between them equally; if one of the parents should the legitime is divided equally between maternal and paternal
have died, the whole shall pass to the survivor.
lines.
If the testator leaves neither father nor mother, but is
- Each line subject to consolidation if either ascendant of
survived by ascendants of equal degree of the paternal and
such line is unable to inherit.
maternal lines, the legitime shall be divided equally
between both lines. If the ascendants should be of different
degrees, it shall pertain entirely to the ones nearest in
degree of either line.
Legitime of Legitimate Parents
Legitimate parents share the legitime equally. If one predecease
the decedent, the legitime shall pertain to the survivor even if
there are more remote ascendants.
- Result of the two general rules
i. Rule of proximity
Article 891
ii. Rule that bars representation in the
ascending line The ascendant who inherits from his descendant any
- Same rule applies to incapacitated or disinherited property which the latter may have acquired by gratuitous
parent or a parent who repudiated the inheritance of title from another ascendant, or a brother or sister, is
the child; the legitime shall pertain to the other parent obliged to reserve such property as he may have acquired
by operation of law for the benefit of relatives who are
Succession of Ascendants

within the third degree and who belong to the line from
which said property came.
Evolution of the Reserva
Middle ages- preservation of family wealth a major
preoccupation of the privileged class
Ancient laws made provisions for the preservation of a family’s
wealth.
Philippine law is no exception.
Old Civil Code (1889) – reserva was introduced as a novel
concept of wealth presservation
1. Reservas under the old Civil Code
(a) Reserva troncal – lineal segregation of the wealth
of the maternal and paternal lines, such that the
accidental transfer of wealth from one line to the
other was considered an anomaly which must be
rectified. - Reversion of the property back to the
origin
(b) Reversion Legal – mandated the return to the
ascendant-donor any property (or
proceeds/replacement) which he or she had
donated to his or her children or descendants who
died without issue
(c) Reserva Viudal – requires a widow or a widower
to reserve for the children and descendant of the
former marriage all property received by him or her
by gratuitous title from the deceased spouse/
relative of the deceased/ children of the first
marriage
2. Reserva Adoptiva Under the old Rules of Court
Sec. 5 Rule 100 of the ROC – any property gratuitously
received by an adopted child from his or her adopting
parents is reserved for the legitimate relatives of the
adopters
3. Reserva Troncal Under the New Civil Code
- New Civil Code repealed reserva viudal and reversion
legal as well as the reserva adoptive under the old
Rules of court
- Retained reserva troncal
4. Reserva Adoptiva Under PD No. 63
- 1974 – Marcos issued PD No. 603 known as the Child
and Youth Welfare Code
- Sec.39, paragraph 4 of the decree reinstated a
watered-down version of the reserva adoptiva
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- reserva in PD No. 603 is extinguished if the adopted
child alienated the property gratuitously acquired from
the adopter
- reserva is reduced to one half is the adopted child,
upon demise, leaves no other property and is survived
by illegitimate issue and a spouse
- Family Code repealed the reserva adoptiva in PD Np.
603.
- What remains is the reserva troncal; a special rule in
succession, is a reversionary right designed primarily
to assure the return of the reservable property to the
third degree relatives of the prepositus belonging tpo
the line from which the property originally came.
Objective of Reserva Troncal
To correct the anomaly caused by the unintentional
transmission of the reservable property from the prepositus
to the reservor by mandating the reversion of the reservable
property to the line to which the such reservable property
originally belong.
Objections to the Reserva
Section 1 of Art. XII of the PH CONST states that the goals
of the national economy are a more equitable distribution of
opportunities, income and wealth.
The natural effect of reserva troncal is the concentration of
wealth which is the basic foundation of the economic
oligarch. This system is repugnant to the CONST and has
no place in the modern world.
Reserva Troncal is a potential deterrent to the use of the
property for productive endeavors.
- Reservor may not endeavor to develop or improve the
property conscious of his or her conditional title over
the property.
 P a g e | 67

Reserva Troncal operates in a discriminatory manner. It rather a payment assumed in order to liquidate the
runs only in the legitimate family. - No reservation if transfer estate of the origin.
involved illegitimate child hence discriminates against Chua v. CFI of Negros Occidental
legitimate filiation.
The payment of the debts in order to proceed with the intestate
Elements of Reserva Troncal proceedings does not alter the gratuitous nature of the
transmission of property.
(1) A legitimate ascendant (reservoir) acquires property
(reservable property) from a legitimate descendant (c) Simulated Contract of Sale
(prepositus) by operation of law. Example:
(2) The prepositus in turn acquired the reservable property A father simulated a sale of parcel of land to his son.
by gratuitous title from another legitimate ascendant, The true intention was to donate the property. The son
brother or sister (the origin). did not pay the purchase price and at the time of the
(3) The reservoir is required by law to reserve the donation the father was solvent.
reservable property. - Simulated sale may be valid under contract law
(4) The beneficiaries of the reserve are the legitimate - The intention was not unlawful. The transfer was not
relatives of the prepositus within the third degree of against the law, morals, good customs, public policy or
consanguinity coming from the line of origin (reserves). public order; neither would it prejudice third persons
- The relative simulation of sale is therefore valid
Parties to Reserva Troncal
“if the price is simulated, the sale is void, but the act may be
1. Origin
shown to have been in reality a donation, or some other act
2. Prepositus
or contract” (Art.1471)
3. Reservor
4. Reservees - Treated by law as donation; assessed donor’s tax
- Theoretically, the property may become a reservable
Origin
property subject to the fulfillment of the other requisites
- source of the reservable property of reserva troncal
- Legitimate ascendant, brother or sister - This gratuitous nature of the transfer must however be
- Origin transfers ownership of the property to the established by competent evidence
prepositus by gratuitous title (First Transmission) either (d) Transfers for Less than Full Consideration
by: - The inadequacy of price is not a ground to set the
o Donation inter vivos contract aside
o Donation propter nuptias
“Except in cases, specified by law, lesion or inadequacy of
o Hereditary succession (testate or intestate)
cause shall not invalidate a contract, unless there has been
- The key consideration is that the first transmission
fraud, mistake or undue influence.” (Art. 1335)
must be gratuitous.
(a) Who is the origin? “Gross inadequacy of price does not affect a contract of
Mendoza v. Delos Santos sale, except as it may indicate a defect in the consent, or
that the parties really intended a donation or some other act
A collateral relative cannot be considered an ascendant for
or contract.”(Art.1470)
purposes of the reserva.
- In a contract of sake of a land where the consideration
(b) First transmission of Title
was grossly inadequate, evidence may be shown that
An acquisition is gratuitous if it is without valuable
the true intention was to donate the property.
consideration.
- To the extent of the inadequacy, the transaction may
- Gratuitous even if in the settlement proceedings, the
be treated as a donation
prepositus paid a debt owed to a third party by the
- The property, to the same extent, may eventually
origin.
become reservable
- What is important is that the payment was not an
obligation imposed on the prepositus by the origin, but Prepositus
 P a g e | 68

- Is a legitimate descendant, brother or sister of the - not reservable at this point in time
origin who acquires ownership of the reservable
Lacerna v. Vda. De Corcino
property from the latter by gratuitous title
- There is no reserva if the prepositus is still the owner Art.891 applies only to properties inherited, under
of the property; he may alienate it during his lifetime conditions set forth, by an ascendant from a descendant.
upon which the property loses the prospect of
becoming reservable at some future time (a) Second Transmission of Title
(a) The Prepositus Forestalling the Reserva Transmission by operation of law – is a transfer of
ownership other than through a voluntary act of the
The prepositus can directly or indirectly thwart the reserva testator
in at least four ways:
In succession, there are three ways by which an heir
i. By disposing the potentially reservable
may acquire title to property by operation of law:
property by an act inter vivos
i. Intestate succession
o Not subject to any statutory restriction in
o The law governs the distribution of the
respect to disposing of the property
inheritance of a person who died without
ii. By controlling the partition of his estate
having executed a valid and operative will.
o He may give the reservable property to an
ii. Succession to the legitime (compulsory
ascendant as a legacy or devise in which
succession)
case the transfer is not by operation of law
o Law determines the compulsory heirs and
iii. By begetting a legitimate child
specifies the amounts each of the are entitled
o The legitimate descendant will exclude all
to receive as legitime
ascendants from succeeding the prepositus
o Right conferred by law
by operation of law
o Not because of generosity of he testator
o Only way for ascendant to inherit in this case,
iii. Succession by right of representation
is through testamentary succession which is
o Representative is called upon by law to inherit
not by operation of law
from the decedent in representation of an heir
iv. By adopting a child
who DIP (was disinherited, was incapacitated,
o an adopted child is deemed to be legitimate
predeceased)
child of the adopter (Art.189 FC)
o the adopted child will exclude all ascendants In reserva troncal the second transmission of title must be by
from the inheritance operation of law. Of the three modes, right of representation
o ascendants may inherit only through a will must be excluded.
which is not by operation of law
- Reservor (ascendant) cannot inherit by right of
Reservor representation from the prepositus because right of
representation is not available in the ascending line
- is the legitimate ascendant who acquires ownership of
- SO second transmission could only be:
the reservable property by operation of law from the
a. Transfer of legitime
prepositus (second transmission of title)
b. Transfer of inheritance by intestate succession
- has the statutory obligation to return the reservable
property to the reservees
- must be an ascendant of the prepositus
Solivio v. CA
- a descendant who gratuitously acquired property from
an ascendant is not a reservor of the property
- Clearly, the property of the deceased is not reservable
property for Esteban Jr. was not an ascendant, but the
descendant of his mother

(b) Reservor’s Title to the Reservable Property
Two views:
a. Reservor is at best a lifetime usufructuary of the
reservable property/ trusteefor the benefit of the
reservees
b. Reservor is the owner of the reservable property
Weight of authority favors “b”
A reservor enjoys all attributes of ownership, except
the his power to alienate the reservable property is
subject to certain qualifications
i. The reservor is the owner of the reservable
property and has a registrable title thereto
Edroso v. Sablan
A reservor may register the reservable property under her own
name just as a vendee a retro is allowed to in pacto de retro
sales even if their title to the property is annexed with a
subsequent condition.
ii. The reservor is a conditional heir of the
prepositus with respect to the reservable
property.
Reservor’s title to the reservable property is subject to two
resolutory conditions:
1. The death of the reservor
2. The survival of a reserve
Upon fulfillment of the two conditions, ownership of the property
passes to the reservees who inherit from the prepositus
Sienes v. Esparcia
The reserva instituted by law in favor of the heirs within the third
degree belonging to the line from which the reservable property
came, constitutes a real right which the reservee may alienate
and dispose of, albeit conditionally, the condition being that the
alienation shall transfer ownership to the vendee only if and
when the reservee survives the person obliged to reserve.
iii. Termination of Reservor’s Title; Fulfillment of
the Double Resolutory Conditions
Upon death of reservor, reservable property passes by intestate
succession to reservees who inherit the same from the
prepositus.
The reservable property does not form part of the estate of the
reservor.
P a g e | 69
Florentino v. Florentino
Reservable property neither comes nor falls under the absolute
dominion of the ascendant who inherits and receives the same
from his descendant.
Reservees
The ultimate beneficiaries of the reservable property, provided
that the double resolutory conditions are fulfilled.
- Relatives of the prepositus within the third degree of
consanguinity who belong to the line of the origin.
The following are potential reservees:
(a) First Degree Relatives
- Legitimate parents
- NOTE: legitimate child of the prepositus cannot be a
reservee because:
i. Property would devolve from the prepositus to
his legitimate child by operation of law; the
statutory obligation is with a reservor who is
an ascendant of the prepositus
ii. the reserva will be barred because the
legitimate child would prevent the transfer of
the property by operation of law to a legitimate
ascendant
(b) Second Degree Relatives
- Direct Line: legitimate grandparents of the prepositus
- Collateral line: legitimate brothers and sisters of the
prepositus (whether full or half blood); full blood will
inherit twice than a half blood (Art.1006)
- NOTE: grandchildren could not be a reservee (same
reasons as with legitimate child);
o presupposes a legitimate issue by the
prepositus who would exclude the
ascendants from inheriting;
o even if the legitimate issue would DIP, the
grandchildren may inherit either by right of
representation or y their own right
(c) Third Degree Relatives
- Direct line: legitimate great grandparents of the
prepositus
- Collateral line:
a. nephews and nieces of the prepositus and
o law does not distinguish between full-blood
and those of the half-blood except that the
former inherit twice that of the latter

o they may inherit as second degree relatives
by right of representation when they concur
with an uncle or an aunt
b. the legitimate uncles and aunts of the prepositus
In de Papa v. Camacho the SC took an exception to the rule
of proximity and held that while the legitimate nephews and
nieces of the prepositus and his legitimate uncles and aunts
are all collateral relatives in the third degree, the former
exclude the latter because in the order of intestate
succession, nephews and nieces rank fifth while uncles and
aunts rank sixth (other collateral relatives)
NOTE: legitimate great grandchild cannot be a reservee
(same reason as with legitimate child and grandchild)
c. Legitimacy of Relationship
“relatives” must be legitimate family of the prepositus; hence
reserva runs only on the legitimate family
Accidental transfer of wealth from one illegitimate family to
another illegitimate line is not considered anomalous
Illegitimate parent enjoys a distinct advantage over a legitimate
parent or ascendant who may be burdened by the reserva
Nieva and Alcala v. Alcala and De Ocampo
Reserva runs only in the legitimate family.
d. Identification of Reservees’
The rule of proximity squarely applies. Relatives nearer in
degree to the prepositus will exclude the more remote ones
If reservees are within same degree, they may inherit
collectively but without prejudice to the preference established
by the order of intestate succession.
De Papa v. Camacho
A niece excludes the uncles and aunts of the prepositus.
Distribution of the Reservable Property
Two theories were advanced in relation to the distribution of the
reservable property among the reservees.
(1) Integration Theory (Reserva Integral)
Premise: Art.891 obliges the reservor “to reserve the
property as he may have acquired by operation of law for
the benefit of relatives who are within the third degree and
who belong to the line from which the property came.”
P a g e | 70
The reference to third degree relatives is unqualified.
Therefore, all legitimate relatives of the prepositus within
the third degree of consanguinity belonging to the line of
origin, as a class, are eligible reservees who shall divide the
property equally without distinction.
- Proximity and order of intestate succession are
irrelevant
- Thus brothers, sisters, nephews and nieces divide the
property equally
(2) Theory of Delayed Intestacy
Basic premise: reservees inherit the reservable property
from the prepositus
Following Padura, Art.891 is limited to two issues:
i. Determination whether or not the relevant property
is reservable
ii. Identification of the heirs of the prepositus entitled
thereto
Rules of intestate succession applies in distribution of
reservable property
- Reservees do not inherit as a class
- Reservable property is in effect brought back to the
intestate estate of the prepositus (delayed intestacy)
(a) Rule of Equal Division
Equal division of the property among the reservees.
However between full-blood and half-blood brother or sister of
the prepositus, the former get double the share of the half-blood
Padura – SC gave each nephew/niece of the full blood double
the share of the half-blood
Florentino- SC overlooked the fact that one of the reservees was
full-blood sister of the prepositus while the others were brothers
or sisters of the half-blood
(b) Right of Representation
Distribution of reservable property governed by intestate
succession.
In intestate succession, right of representation is given to
legitimate children of a predeceased or incapacitated brother or
sister of the decedent.

Therefore, nephews and nieces of the prepositus (whether of
the full of half-blood) are entitled to exercise the right of
representation if concurring with at least one brother or sister of
the prepositus.
- They inherit in the second degree
- No other collateral relatives may exercise right of
representation
- Right of representation not available in the ascending
line
Padura v. Baldovino
In other words, the reserva troncal merely determines the group
of relatives to whom the property should be returned; but within
that group, the individual right to the property should be decided
by the applicable rules of intestate succession.
Accidental Transfer of Property not Necessary
It is possible that no accidental lineal transfer of wealth even if
an ascendant acquired property by operation of law from a
descendant who in turn acquired same property by gratuitous
title from another ascendant, brother or sister.
(a) A paternal grandfather donated a parcel of land to his
grandson.
Grandson died without issue ad without a will.
Land passed to his father by intestacy.
(b) A person donated to his full blood sister a parcel of land.
Sister died without issue and without will.
Land passed to her mother nu intestacy.
In the above illustrations, there is no lineal transfer because the
property remained within the same family.
Some authorities advance the view that if the origin is the full-
blood brother or sister of the prepositus, then reserva will not
apply as there would be no accidental transfer of wealth to a
stranger.
However, if the relationship between the origin and prepositus
is that of the half-blood brother or sister, reserva is applicable
because the transfer to a stranger is obvious.
Gonzales v. CA
The SC applied the reversionary rule even if the ancestral
wealth of the Legarda family did not cross another line of the
family
Encumbrance created by the Reserva
P a g e | 71
The reserva creates an encumbrance o the reservable property
which affects the reservor’s title thereto.
While a reservor may dispose of the reservable property in his
lifetime, the burden created by the reserva will follow the
reservable property such that every transferee, with actual or
constructive notice of the reservable nature of the property, is
subject to the double resolutory conditions the fulfillment of
which creates the obligation to return to the reservees.
Rule: return of the property cannot be by any other manner such
as paying money equivalent or by delivering a thing of same kind
and quality.
- Reason why the reservees cause the annotation of
their right as reservees in immovable properties or by
asking for a security in case of a movable property
Sumaya v. IAC
There is a need to register the register the reservable character
of the property if only in order to protect the reservees against
innocent third persons.
The reservable character of the property may be lost to innocent
purchasers for value.
Reserva in Testamentary Succession
(1) Prepositus inherited from his father parcel 1.
Prepositus also owns parcel 2.
He wrote a will where he devised Parcel 1 to his mother.
He died single and without issue.
- Parcel 1- is not reservable because the mother
acquired by will and not by operation of law
- Parcel 2 which was acquired by the mother as legitime
is not reservable because the same was not
gratuitously acquired by the prepositus from an
ascendant, brother or sister.
End result: the son was able to thwart the reserva over
parcel 1
(2) Prepositus inherited from his father a parcel of land
worth 1M
Prepositus executed a will and bequeathed the same
land to his mother as sole compulsory heir.
If admitted probate, the mother would receive under
two capacities:
o As compulsory heir with respect to ½
 This is the reservable portion
because her legitime was acquired
by her by operation of law
 P a g e | 72

o As voluntary heir with respect to the other half - Proportionate allocation of parcel 1 and parcel 2 in the
legitime and DFP.
End result- by executing a will, prepositus can mitigate the effect
- Ratio is 1:1 since the fraction of legitime and DFP are
of the reserva.
both ½ of the net hereditary estate (1M each)
Reserva Maxima and Reserva Minima - NOTE: basis is the ratio between the legitime and free
portion
- Best illustrated by examples
1. Example 1 End result: M inherits as follows:

P (prepositus) received parcel 1 (1M) from his father gratuitously. Source of amount allocation value
P also owns parcel 2 (1M) right
P executed a will wherein he instituted his mother M, as legitime 1M ½ parcel 1 500k
universal heir. ½ parcel 2 500k
P died single and without issue. Institution 1M ½ parcel 1 500k
P’s net hereditary estate – 2M to the DFP ½ parcel 2 500k
Net estate 2M 2M

M’s successional rights:

2. Example 2
- As compulsory heir – 1M legitime
A donated to his only son C a parcel of land (60k)
o By operation of law – parcel 1 is potentially
A died
reservable (received from father gratuitously
C owned shares of stocks worth 40k
and transferred to mother by operation of law)
C died without issue but left a will wherein he instituted his
- As voluntary heir – 1M free portion
mother B as universal heir.
To what extent is parcel 1 reservable? Net hereditary estate – 100k

(a) Under theory of reserva maxima To what extent is land reversible?

- Reservable character of parcel 1 must be preserved to - Only land is reversible because it is the one which
the maximum extent possible satisfied the requisites of reserva
- Parcel 1 must be allocated as legitime (a) Under theory of reserva maxima
End result: M inherits as follows B would inherit as follows:
Source of amount allocation value
Source of amount Property right
right allocated legitime 50k 5/6 land* 50k
legitime 1M Parcel 1 Institution 50k 1/6 land 10k
Institution to 1M Parcel 2 to the DFP shares 40K
the DFP Net Estate 100k 100k
Net estate 2M * land was allocated to the legitime but its value
exceeded the legitime hence 1/6 of the land would be
included in the DFP
Parcel 1 was made reservable in its entirety. Parcel 2 may
not be reservable because it was not acquired by the
(b) Under theory of reserva minima
prepositus from an ascendant, brother or sister and also
B would inherit as follows:
because it was not received by M by operation of law
Source of amount allocation value
(received in capacity as voluntary heir in the will).
right
(b) Under theory of reserva minima legitime 50k ½ land 30k*
- There is an effort to mitigate the reservable character ½ shares 20k
of Parcel 1 Institution 50k ½ land 30k
to the DFP ½ shares 20k
Net estate 100k 100k

* 30k is ½ of the 60k land; 20K is ½ of 40k shares
Only half of the land was made reservable because the other ½
shares allocated to the legitime is not reservable; and because
the other ½ share of the land was allocated to the DFP.
No definitive ruling in these theories.
Edroso v. Sablan gives a hint on the thinking of the magistrates.
“If Pedro Sablan had instituted his mother in a will as the
universal heiress of his property, all he left at death would not
be required by law to be reserved, but only what he would have
perforce left her as the legal portion of a legitimate ascendant.”
“In such case only the half constituting the legal portion would
be required by law to be reserved, because it is what, by
operation of law, would fall to the mother from her son’s
inheritance; the other half at free disposal would not have to be
reserved.”
But the SC stopped short of elaborating on the issue of
allocation. Only mentioned that the ascendant-reservor would
inherit in two capacities: as compulsory heir and as voluntary
heir
Reserva on Consumable and/or Fungible Property
Encumbrance on the reserva attaches to the reservable
property and not to its value based on clear language of 891.
- Also inferred under 1061 (collation) where the law
requires the compulsory heirs to bring into the mass of
the estate ay property or right received by them during
the decedent’s lifetime by gratuitous title.
- However: 1071 clarifies that “the same things donated
are it to be brought into collation and partition, but only
their value at the time of donation, even though their
just value may not have been accessed.”
Return of the property; cannot be complied with in any other
manner (money, another thing of same kind and quality)
If prepositus sells the reservable property. The reserva is
thwarted because unlike reversion legal the proceeds of the sale
is not reservable.
Difficult legal issue: what if the reservable property is a
consumable or fungible property?
Father gave a 1M cash donation to son.
Son deposited it in a bank account.
Son died single and without issue.
P a g e | 73
At time of death the deposit amounted to 2M, inherited by
mother through intestacy (by operation of law).
Is the mother a reservor of the deposit? Should the 1M be set
aside from the credit balance of the bank account as the same
money donated by father to son?
Nature of money:
- Consumable – not in the physical sense but in the
sense that the owner parts with it
- Fungible – capable of substitution
It would seem that it cannot be burdened by reserva. If
prepositus spend it, he loses ownership thereof and the
encumbrance could not follow a consumable or fungible
property.
Majority of commentators: if the prepositus alienates the
money/cash, the reserva is extinguished
The proposition that the money equivalent of a potentially
reservable property (or money itself) is not reservable in no
uncertain terms dilutes the reversionary effects of 891.
Extinguishment of the Reserva
Reserva may be extinguished in different ways:
(1) Loss of the Reservable Property
- Not limited to physical loss but include going out of the
commerce of man
- Loss by Force majeure extinguishes obligation of
reservor
- Accidental loss without fault or negligence also
extinguishes the reserva
Deliberate destruction – reservee should at least be
permitted to file a claim for damages against the estate of
the reservor; the basis of the claim is not the value of the
property but the breach of reservor’s legal obligation or tort
under 2176 or alternatively under Art.20.
(2) Waiver of the Reservees
- Upon fulfillment of the double resolutory conditions,
reservees may waive their respective rights to the
reservable property
- If all reservees waive, reserva extinguished I its entirety
- If only some, the other non-waiving reservees benefit

NOTE: waiver by reservee during lifetime of reservor void
for being a contract involving future inheritance (Velayo
Bernardo v. Siojo)
(3) Non-Survival of the Reservees
Reserva is extinguished if there are no surviving
reservees at time of death of reservor.
- non-fulfillment of the second resolutory condition
(4) Prescription
Carillo v. De Paz
Having been filed more than 10 yrs from the reservor’s
death, the action herein has prescribed.
Sebastian Lecture on Reserva:
Art. 891 does not prohibit intentional transfer of wealth to the
other family.
2 modes of reserva troncal.
1.
2.
The reservor is an “owner” of the thing received. He is not a
usufructuary nor a trustee. His ownership is conditional. He has
the obligation to bring it back in favor of the reservees.
The prepositus must die intestate, without heirs.
P a g e | 74
The reservoir must be the ascendant of the prepositus.
2 transfers by operation of law
1. Intestacy
2. Art. 886- by legitime
Article 892
If only one legitimate child or descendant of the deceased
survives, the widow or widower shall be entitled to one-
fourth of the hereditary estate. In case of a legal separation,
the surviving spouse may inherit if it was the deceased who
had given cause for the same.
If there are two or more legitimate children or descendants,
the surviving spouse shall be entitled to a portion equal to
the legitime of each of the legitimate children or
descendants.
In both cases, the legitime of the surviving spouse shall be
taken from the portion that can be freely disposed of by the
testator.
One Legitimate Child Concurring with the Surviving Spouse
The legitimate children as a class include the adopted child.
The legitimate children are entitled to one-half of the estate of
the deceased parent b way of legitime which is equally divided
between or among them. If there should only be one, entire
legitime pertains to that child.
General rule: legitime of the surviving spouse is equal to the
legitime of one legitimate child
892 as an exception:
- ideally if only a legitimate child and the spouse survives
the entire estate should be divided in half between
them
- 892 reduces the share of the spouse in such instance
to only one-fourth of the estate
This reduction is necessary for two reasons:
1. To allow some provision for the payment of legitime of
illegitimate children
2. To give the deceased the leeway to execute a will and
make certain dispositions of his estate;
- To hold otherwise, would make executing a will
senseless as every disposition would impair the child’s
and the spouses’ legitime
 P a g e | 75

b. LC B
estate of deceased person c. LC C
d. LC D
e. SS

Legitime LC A 11, 250

Legitime LC B 11, 250
Legitime LC C 11, 250
Legitime LC D 11, 250
Legitime SS 11, 250
legitime of legitimate child
Total Legitime 56, 250
DFP 33, 750
legitime of surviving spouse
Free Portion
If the decedent is survived by many legitimate children:
(a) The legitime of the SS gets smaller
(b) The DFP becomes bigger
(c) There will be more assets available for payment of the
Surviving Spouse (SS) Concurring with Two or More legitime of his illegitimate children
Legitimate or Adopted Children (LC)
Successional Rights of A Foreign National Who Divorced
The legitime of the SS is equal to one LC, if there should be the Filipino Spouse
several.
Nationality rule – on all matters pertaining to family rights and
Fewer LCs, the bigger their respective shares of strict legitime duties, as well as to the status, condition and legal capacity of
be; and so with the SS (taken from free portion) persons (Art.15)
The bigger the legitime of the SS is, the smaller the disposable Application of the nationality rule results in a grotesque situation
free portion will be wherein a foreign national is released from all marital rights and
(1) Example 1 obligations towards the Filipino spouse while theoretically the
X- decedent latter is not.
Net hereditary estate (NHE) – 90k Van Dorn v. Romillo, Jr.
Survivors:
a. LC A A foreign national who obtained a divorce decree abroad and is
b. LC B no longer the spouse of the Filipino spouse under his national
c. SS law may not sue as the latter’s husband in PH courts to exercise
control over conjugal assets.
Net estate 90k
Strict Legitime 45k Successional Rights of a Surviving Spouse in Case of Legal
Free Portion 45k Separation
Legitime LC A 22.5 k
Legal separation does not terminate the marriage between the
Legitime LC B 22.5 K
spouses hence they still continue to be reciprocal compulsory
Legitime SS 22.5k
heirs.
Total Legitime 67.5 K
DFP 22.5k It is clear, however, from paragraph 4 of Art.63 that the offending
spouse is disqualified from inheriting from the innocent spouse
(2) Example 2 by intestate succession.
X- decedent NOTE: Art.63 para 4 does not disqualify the offending spouse
Survivors: from inheriting from the innocent spouse by testamentary
a. LC A succession.

Rather the law provides that any provision in favor of the
offending spouse in the will of the offended spouse is revoked
by operation of law.
There is a marked difference between:
(i) Disqualification of the offending spouse to inherit
from the innocent spouse by intestate succession
(ii) Revocation of prior testamentary dispositions
made in favor of the offending spouse
The object of revocation is the testamentary disposition.
The object of disqualification is the heir.
Can an offending spouse inherit from the innocent spouse by
testamentary succession?
- On a will before the decree of legal separation – NO.
(deemed revoked)
- On a will subsequent to the decree of legal separation
– YES
Reasons:
1. The testamentary disposition in a subsequent will
could not have been revoked by operation of law
at the time the decree of separation was issued
2. The testamentary provision may be construed as
a forgiveness extended by the innocent spouse to
the offending spouse
Most important consideration is the fact that the
innocent spouse and the offending spouse remain
married to each other notwithstanding the final decree
of legal separation.
Innocent spouse – remains a compulsory heir of the
offending spouse both in testacy and intestacy
Successional Rights of Spouses in Marriages terminated by
Judicial Decree
Marriage may be judicially terminated in two ways:
(1) By petition foe declaration of nullity, in case the
marriage is void ab initio
(2) By petition for annulment, in case of a voidable
marriage
In either case, the former spouses cease to be reciprocal
compulsory heirs.
1. Bigamous Marriage under Article 41 of the Family
Code
(a) Concept
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Special kind of bigamous marriage
Elements:
(1) There is a first valid marriage between the parties
thereto
(2) One of the spouses of the first marriage has been
absent for 4 consecutive years; provided however if at
the time of disappearance of the absent spouse there
was danger to his or her life, absence for two years
would be sufficient
(3) The spouse present has a well-founded belief that the
absent spouse was already dead. (in good faith)
(4) The spouse present instituted a summary proceeding
for the declaration of the presumptive death of the
absent spouse
(5) The court having jurisdiction over the proceeding
issued a decree for the declaration of the presumptive
death of the absent spouse.
(6) On the basis of such decree, the spouse present
contracted a subsequent marriage with another
person- the second spouse
Subsequent marriage is at best conditionally valid because
the declaration of presumptive death is “without prejudice
to the effect of reappearance of the absent spouse”
Thus the second marriage “shall be automatically
terminated by the recording of an affidavit of reappearance
of the absent spouse, unless there is a judgment annulling
the previous marriage or declaring it void ab initio” (Art.42)
Spouse present – acted in good faith
Therefore, the “spouse in bad faith” could only pertain to the
spouse in the second bigamous marriage (who married the
souse present).
(b) Effect of termination of marriage on successional
rights
Para 5 of Art 43
“Art.43. The termination of the subsequent marriage referred to
in the preceding Article shall produce the following effects:
(5) The spouse who contracted the subsequent marriage
in bad faith shall be disqualified to inherit from the
innocent spouse by testate or intestate succession.”
Base Case

In 2005, B (wife of A) instituted a proceeding for the declaration
of A’s presumptive death.
A has been absent for more than 5 yrs.
In 2006 a decree of presumptive death was issued.
In 2008, B married C. C was in bad faith (knew that A is still alive)
In 2009, B executed a will wherein he gave C a devise in addition
to legitime
In 2010, A recorded an affidavit of reappearance.
End result – C was disqualified to inherit from B by testate or
intestate succession.
(c) Disqualification to inherit by testamentary
succession
i. The spouse in bad faith
C was the spouse in bad faith
C’s successional disqualification has 2 dimensions:
a. C may not inherit as compulsory heir of B
b. C may not receive the devise
What if B executed the will subsequent to the termination of the
second marriage?
- The disqualification of C cannot be overwritten by the
subsequent will
Reasons:
1. There is no provision of law that allows B to overwrite
the disqualification of C
2. The marriage bond between B and C has been
severed
ii. The innocent spouse
There is nothing in the law that would disqualify B from inheriting
by testacy as a voluntary heir of C.
B may inherit only as voluntary heir and not as a surviving
spouse. B not entitled to legitime.
(d) Disqualification to inherit by intestate succession
Disqualification of C to inherit by intestacy has very limited
application.
The right to inherit ab intestado extends to the fifth degree of
relationship in the collateral line.
P a g e | 77
C may only be disqualified to inherit by intestacy if he/she was
a relative in the 5th civil degree of B. (this is because marriage
with relatives within the 4th civil degree is void due to public
policy.
(e) Summary of Rules
(1) Upon the recording of the affidavit of reappearance of
A, the marriage between B and C is terminated
(2) B and C cease to be reciprocal compulsory heirs
(3) C is disqualified to inherit from B pursuant to a will
executed by B prior to or after the termination of
marriage
(4) C is disqualified to inherit from B as an intestate heir
(5) The marriage of A and B subsists; they continue to be
reciprocal compulsory heirs
(f) The Unforeseen Contingency
The family code does not address a case where both parties to
the second marriage acted in good faith.
If B dies and C is in good faith. Who between A and C inherits
as surviving spouse?
A inherits as the surviving spouse of B. This is because in Art.42
the marriage between B and C is automatically terminated upon
the recording of the affidavit of reappearance.
There would be problems in the distribution of legitime and
intestate shares if both A and C are treated as surviving spouse.
See complete listing on pp.560-562
It could not have been the intention of the framers of the Family
Code to confer successional rights to two surviving spouses.
2. Void Marriages
Family Code enumerated the void marriages in Arts/ 35, 36, 37,
38 and 53.
A person who seeks to contract a second marriage on the basis
of nullity of a first marriage is required to institute a petition for
declaration of nullity of a previous marriage under Art. 40 of the
Family Code (FC).
HOWEVER in succession:
If the marriage between the parties is void, they never became
spouses. Succession will not flow between them.
- No need for judicial declaration of nullity
- May be attacked collaterally (e.g. settlement of estate)
 P a g e | 78

They are not reciprocal compulsory heirs but are treated as
virtual strangers to each other.
NOTE: if incestuous marriage the blood relationship could serve
as the basis for succession to flow
3. Voidable Marriages
- Enumerated under Art. 45 FC
- Valid until judicially annulled
Prior to decree of annulment, spouses are reciprocal
compulsory heirs.
4. Successional Disqualification in Void and Voidable
Marriages
“Art.43. The termination of the subsequent marriage referred to
in the preceding Article shall produce the following effects:
(5) The spouse who contracted the subsequent
marriage in bad faith shall be disqualified to inherit from
the innocent spouse by testate or intestate succession.”
“Art.44. If both spouse of the subsequent marriage acted in bad
faith, said marriage shall be void ab initio and all donations by
reason of marriage and testamentary dispositions made by one
in favor of the other are revoked by operation of law.”
No more basis to impose the disqualification because there is
no successional right to begin with.
Only instance where disqualification make sense:
A married B (5th degree relatives).
Marriage declared void due to the psychological
incapacity of A.
If B has no other intestate heirs (descendants,
ascendants, surviving spouse, brother, sisters, nephews or
nieces) then the disqualification would apply.
Article 893
If the testator leaves no legitimate descendants, but leaves
legitimate ascendants, the surviving spouse shall have a
right to one-fourth of the hereditary estate.
This fourth shall be taken from the free portion of the estate.
Legitimate Parents or Ascendants Concurring with the
Surviving Spouse

The declaration of nullity and annulment of marriage produces Legitimate parents and other legitimate ascendants inherit as
the following effects on the successional right of the guilty party: secondary compulsory heirs. (in the absence of PCH)

(a) He/she is disqualified to inherit from the innocent party They take the strict legitime and are entitled to one-half of the
by testate or intestate succession hereditary estate.
(b) The testamentary dispositions made by the innocent SS concurs with legitimate parents and ascendants – gets ¼ of
party in his or her favor are revoked by operation of law the hereditary estate as legitime
The successional disqualification of the guilty party in void Example 1
marriages, voidable marriages and bigamous marriages X – decedent
under Art.41 of the FC are the same. NHE – 90K
5. Successional Disqualification of the Guilty Party Survivors:
a. LP A (legitimate parent)
General rule: party in bad faith/guilty party in a void or voidable b. LP B
marriage is disqualified to inherit from the innocent party by c. SS
testate or intestate succession
This disqualification does not make much sense: Net estate 90k
Strict Legitime 45k
- In void marriages, marital bonds never existed Free Portion 45k
- In voidable marriages that are annulled, marriage Legitime LP A 22.5k
bonds are severed. From the decree of annulment, Legitime LP B 22.5k
parties cease to be spouses Legitime SS 22.5k
Total Legitime 67.5k
No more marriage as basis of the successional right. DFP 22.5k
 P a g e | 79

Illegitimate Children Concurring with the Surviving Spouse

Example 2
No primary nor secondary compulsory heirs
If X survived by:
SS- 1/3
a. LF A (legitimate father) Illegitimate children (collectively) - 1/3
b. SS DFP – 1/3

Legitime of LF A 45k
Legitime of SS 22.5k NOTE: illegitimate children shall divide their share equally
Total Legitime 67.5k without distinction
DFP 22.5k
Article 895

Example 3 The legitime of each of the acknowledged natural children

and each of the natural children by legal fiction shall
If X survived by: consist of one-half of the legitime of each of the legitimate
children or descendants.
a. LF A (legitimate father)
b. LMGM (legitimate maternal grandmother) The legitime of an illegitimate child who is neither an
c. SS acknowledged natural, nor a natural child by legal fiction,
shall be equal in every case to four-fifths of the legitime of
Legitime LF A 45k
an acknowledged natural child.
Legitime SS 22.5k
Total legitime 67.5k The legitime of the illegitimate children shall be taken from
DFP 22.5k the portion of the estate at the free disposal of the testator,
Maternal grandmother was excluded by the legitimate father. provided that in no case shall the total legitime of such
Example 4 illegitimate children exceed that free portion, and that the
legitime of the surviving spouse must first be fully satisfied.
If X survived by:
Amendments under the Family Code
a. PGP A (paternal grandparent)
b. PGP B (paternal grandparent) 895 is partly amended by 165 and 176 FC
c. MGM C (maternal grandmother) 165 FC – repealed the classification pf illegitimate children to
d. SS natural and spurious
Legitime of PGP A 11,250 176 FC – repealed the distinction between legitime of natural
Legitime of PGP B 11,250 child and that of spurious
Legitime of MGM C 22,500
Legitime of SS 22,500 Preference of the Spouse over the Illegitimate Children
Total legitime 67,500
SS enjoys preference over illegitimate children since the
DFP 22,250
legitime of the latter is paid only after satisfying the legitime of
the SS.
Legitimate grandparents – legitime distributed per stirpes
Illustrations
SS – ¼ of the estate
Article 894 X- decedent
NHE-90k
If the testator leaves illegitimate children, the surviving
Survivors:
spouse shall be entitled to one-third of the hereditary estate
a. LC A
of the deceased and the illegitimate children to another
b. LC B
third. The remaining third shall be at the free disposal of the
c. LC C
testator.
d. SS
 P a g e | 80

e. IC D (illegitimate child) 1. The decedent is survived by a single primary

NHE 90k compulsory heir.
Strict legitime 45k - One legitimate child/adopted child – ½ of the estate
Free Portion 45k - If concurred in by 3 illegitimate children (entitled to ½
Legitime LC A 15k of the share of the legitimate; in this case ¼) estate is
Legitime LC B 15k not enough
Legitime LC C 15k Solution: the other half would be divided equally
Legitime SS 15k between the number of IC if 3 or more
Legitime IC D 7.5k 2. The illegitimate children outnumber the legitimate or
Total Legitime 67.5k adopted children.
DFP 22.5k Example:
NHE- 90k
In the above example, all legitimes were satisfied in full. 2 legitimate children – each will get 22.5k
6 illegitimate children – each will get 7.5k only
D- decedent 3. The illegitimate children outnumber the legitimate
NHE – 90k children and they concur with the surviving spouse.
Survivors: Example:
a. LC A NHE – 90k
b. SS 2 legitimate children – each with 22.5k
c. IC X SS -22.5k
d. IC Y 4 Illegitimate children – 5,625 each
e. IC Z (instead of 11.25k each)
Theoretically the legitimes should be:
Legitime LC A 45k Illegitimate children are at a disadvantage since they
Legitime SS 22.5k suffer the reduction of their legitime if the estate is
Legitime IC X 22.5k insufficient to cover the legitime of compulsory heirs.
Legitime IC Y 22.5k
Legitime IC Z 22.5k Article 896
Total Legitime 135k
Illegitimate children who may survive with legitimate
NHE of 90k is insufficient parents or ascendants of the deceased shall be entitled to
Share of each IC should therefore be reduced one-fourth of the hereditary estate to be taken from the
Solution: portion at the free disposal of the testator.
Pay first LC A and SS Legitimate Parents Concurring with Illegitimate Children
Then balance divided equally by number of IC
Must be read together with 889
Actual distribution
Legitimate parents – ½
Legitime LC A 45k
Illegitimate children - ¼
Legitime SS 22.5k
DFP – ¼
Legitime IC X 7.5k
Legitime IC Y 7.5k
X- decedent
Legitime IC Z 7.5k
Total Legitime 90k NHE – 90k
DFP 0 Survivors:
a. LP A
b. LP B
Early Detection of the Insufficiency of the Hereditary Estate c. IC C
d. IC D
e. IC E
 P a g e | 81

NHE 90k If the widow or widower survives with legitimate children or

Strict legitime 45k descendants, and with illegitimate children other than
Free Portion 45k acknowledged natural, or natural children by legal fiction,
Legitime LP A 22.5k the share of the surviving spouse shall be the same as that
Legitime LP B 22.5k provided in the preceding article.
Legitime IC C 7.5k
Legitime IC D 7.5k 897 now covers 898 following the amendment by 165 FC.
Legitime IC E 7.5k Article 899
Total legitime 67.5k
DFP 22.5k When the widow or widower survives with legitimate
parents or ascendants and with illegitimate children, such
If no legitimate child, the share of the ICs shall generally not be surviving spouse shall be entitled to one-eighth of the
reduced. hereditary estate of the deceased which must be taken from
the free portion, and the illegitimate children shall be
If only one LP survives entire half shall pertain to him or her. entitled to one-fourth of the estate which shall be taken also
from the disposable portion. The testator may freely
If both LPs predecease, or are incapacitated, the nearest dispose of the remaining one-eighth of the estate.
surviving legitimate ascendants shall get the legitime. (per
stirpes between maternal and paternal lines) Legitimate Parents or Ascendants Concurring with
Article 897 Illegitimate Children and Spouse

When the widow or widower survives with legitimate - decedent has no legitimate or adopted children hence
children or descendants, and acknowledged natural legitimate parents or legitimate ascendants inherit as
children, or natural children by legal fiction, such surviving SCH
spouse shall be entitled to a portion equal to the legitime of - legitime of ICs will be taken from the free portion
each of the legitimate children which must be taken from Unique provision- only instance where the law gives preference
that part of the estate which the testator can freely dispose to an illegitimate relationship over a legitimate one
of.
Illegitimate child/children – ¼
Amendment under the Family Code SS- 1/8
Amended by 165 FC
Seems unfair to the SS
897 should read as follows: Justifications:
1. the SS will receive his or her legitime in its entirety and
“When the widow or widower survives with legitimate children or
will not share it with anyone
descendants, and illegitimate children, such surviving spouse
2. the ICs still had to divide the ¼ share amongst
shall be entitled to a portion equal to the legitime of each of the
themselves
legitimate children which must be taken from the part of the
3. 1/8 share to the SS intended to give the decedent
estate which the testator can freely dispose of.”
leeway in disposing the remaining 1/8 of the estate
Legitime of an illegitimate child is equal to ½ of the legitime of
one legitimate child. (Art. 176 FC) x- decedent
NHE – 120k
Surviving Spouse Concurring with Legitimate and Survivors:
Illegitimate Children a. LP A
SS same legitime as that of one legitimate child but taken from b. LP B
the free portion. c. SS
d. IC C
Only legitime of illegitimate child subject to reduction. e. IC D
Article 898 NHE 120k
 P a g e | 82

Strict Legitime 60k

Free Portion 60k 5 yrs reckoning date
Legitime LP A 30k Two interpretations of law:
Legitime LP B 30k 1. Computed backwards from time of celebration of
Legitime SS 15k marriage
Legitime IC C 15k 2. Backwards from the death of the decedent
Legitime IC D 15k
Total Legitime 105k No.1 seems to be the appropriate point of reference.
DFP 15k
Application of the Law
If there are 2 or more ICs, each IC will receive as legitime an 900 only affects the legitime of the SS not the totality of
amount smaller than that of the SS his/her hereditary rights.
Article 900
1. Intestate Succession
If the only survivor is the widow or widower, she or he shall
be entitled to one-half of the hereditary estate of the A and B cohabited as common law spouses fro 3 yrs.
deceased spouse, and the testator may freely dispose of A – no living blood relatives
the other half. A figured in a vehicular accident and had very little chance
for survival so he ordered that a priest be summoned so
If the marriage between the surviving spouse and the that he could marry B.
testator was solemnized in articulo mortis, and the testator The marriage in articulo mortis was celebrated.
died within three months from the time of the marriage, the 10 days later A died. NHE – 90k
legitime of the surviving spouse as the sole heir shall be A’s estate shall pertain to B.
one-third of the hereditary estate, except when they have Legitime of B- 1/3
been living as husband and wife for more than five years. B receives the balance as the sole intestate heir.
In the latter case, the legitime of the surviving spouse shall
be that specified in the preceding paragraph. 2. Testamentary Succession
Surviving Spouse Inheriting as Sole Compulsory Heir A and B cohabited as common law spouses for 3 yrs.
1. General Rule A write a will wherein he gave a legacy of 60k to his friend
SS as sole compulsory heir – ½ of estate by way of X.
legitime
2. Exception to the Rule Impending death, he summoned a priest so he could marry
Marriage in articulo mortis (decedent at point of death B. The marriage in articulo mortis was celebrated. 10 days
at celebration of marriage) later A passed away. NHE – 90k. will was admitted to
If decedent dies within 3 months (90 days) – share probate
reduced to 1/3 - X gets legacy of 60k
- B gets 30K (1/3)
Reason: law considers it scandalous for a healthy
person to enter into a marriage contract primarily for If A and B cohabited for more than 5yrs prior to the marriage
financial grain in articulo mortis.
- Presumed if decedent dies within short period of time
B’s legitime – 45k
3. Exception to the Exception Legacy to X would be inofficious by 15k (reducible)
If prior to the marriage in articulo mortis – couple have
been cohabiting as husband and wife for more than 5 Article 901
yrs When the testator dies leaving illegitimate children and no
other compulsory heirs, such illegitimate children shall
Legitime of the SS is ½ of the NHE
 P a g e | 83

have a right to one-half of the hereditary estate of the Scope of the Right of the Descendants of Illegitimate
deceased. Children under Article 902
The other half shall be at the free disposal of the testator. Covers only “the rights of the illegitimate children set forth in the
preceding articles.”
Self-explanatory
Right of representation in 902 does not encompass the totality
Article 902
of the hereditary estate of a predeceased illegitimate child.
The rights of illegitimate children set forth in the preceding
- Explicitly limited to the legitime
articles are transmitted upon their death to their
descendants, whether legitimate or illegitimate. Discriminatory Effect of Article 902
The Right of the Descendants of Illegitimate Children under While the right of representation on 902 humanely treats
Article 902 illegitimate children and their descendants, the law
unintentionally discriminates against the illegitimate
902 confers upon legitimate and illegitimate descendants of an
descendants of a legitimate child.
illegitimate child the right of representation
Reference is the provision of 992 wherein an illegitimate child
902 introduced the following changes in the old Civil Code:
has no right to inherit ab intestado from the legitimate children
(1) Right of representation is conferred upon both the and relatives of his father.
legitimate and illegitimate descendants of a
In sum, while the legitimate descendants of a predeceased,
predeceased illegitimate child
incapacitated or disinherited child may exercise the right of
(2) All predeceased illegitimate children of the decedent
representation, the illegitimate descendants of a predeceased,
may be represented by their respective descendants in
incapacitated, or disinherited legitimate child are denied such
appropriate cases
right.
902 – an affirmation that the child should not bear the brunt of
902 gave a premium to an unbroken chain of illegitimacy.
his illegitimacy
Article 903
902 – should extend to disinheritance or incapacity
The legitime of the parents who have an illegitimate child,
D – decedent
when such child leaves neither legitimate descendants, nor
NHE – 90k
a surviving spouse, nor illegitimate children, is one-half of
Survivors:
the hereditary estate of such illegitimate child. If only
a. LC A
legitimate or illegitimate children are left, the parents are
b. LC B
not entitled to any legitime whatsoever. If only the widow or
c. Illegitimate grandson – X
widower survives with parents of the illegitimate child, the
C- parent of X; predeceased D
legitime of the parents is one-fourth of the hereditary estate
of the child, and that of the surviving spouse also one-
NHE 90k fourth of the estate.
Strict Legitime 45k
Free Portion 45k Legitime of Illegitimate Parents
Legitime LC A 22.5k
Legitime LC B 22.5k In 903, illegitimate parents are SCH of their deceased
Legitime LC C 0 (predeceased) illegitimate child.
Legitime X 11.25k They however inherit only when the IC dies without issue
Total legitime 56.25k (whether legitimate, illegitimate or adopted)
DFP 33.75k
In contrast to legitimate parents who are excluded only be
C’s legitime transferred to X by virtue of right of representation legitimate or adopted children
 P a g e | 84

Illegitimate parents as sole compulsory heirs – ½ of NHE as
legitime
If illegitimate parents concur with SS – ¼
In which case legitime of SS -1/4
NOTE: in the illegitimate line, other illegitimate ascendants
(grandparents and beyond) are not compulsory heirs of the
decedent
- Right to succeed in illegitimate ascending line ends
with illegitimate parents
- No reciprocity: illegitimate grandchild may inherit from
illegitimate grandparent; reverse is not true
Neither can he impose upon the same any burden,
encumbrance, condition, or substitution of any kind
whatsoever.
Protection of the Legitimate
886 reserves the legitime for the compulsory heir.
904 prohibits a testator from depriving the compulsory heir of his
legitime except I specific cases where the former lawfully
disinherit the latter.
- Testator cannot impose any burden, encumbrance,
condition or substitution of any kind on the legitime

Table of Legitime Deprivation of Legitime

Summary of the legitime of compulsory heirs Disinheritance is the only means sanctioned by law by which a
testator may deprive his or her compulsory heir of the legitime.
LC – legitimate child (including adopted child)
IC – Illegitimate child - Requires a valid will that must specify the cause
SS – Surviving Spouse - Stated cause must be one of the grounds specified by
LP – legitimate parents or parents or other legitimate law
ascendants - Cause of disinheritance must be true and certain
IP – Illegitimate parents - Will must be admitted to probate

Survivors Reference LC SS IC LP IP
Burden on the Legitime
LC only Art. 888 ½÷
LC General rule: testator cannot impose any burden on the
1LC and Art. 892 ½ 1/4 legitime
SS
2 or more Arts. 892, ½÷ 1LC ½ One exception: in 1083, the testator may forbid the partition of
LC, IC 895, 897, LC LC the estate for a period not exceeding 20 yrs
and SS 898
SS and IC Art. 894 1/3 1/3 Statutory burdens may however attach to the legitime.
LP, SS Arts. 896, 1/8 1/4 1/2 First, the property which an ascendant acquired by operation of
and IC 899
law from a descendant may be burdened with a reserva
LP only Art. 889 1/2
IC only Art. 901 1/2 Second, a family home shall continue despite the death of one
SS only Art. 900 ½; of both spouses for a period of 10 yrs or for as long as there is
1/3; a minor beneficiary, unless the court finds a compelling reason
1/2 to order its partition
LP and Art. 893 1/4 1/2
SS Article 905
IP only Art. 903 1/2
IP and SS Art. 903 1/4 1/4 Every renunciation or compromise as regards a future
legitime between the person owing it and his compulsory
heirs is void, and the latter may claim the same upon the
Article 904 death of the former; but they must bring to collation
whatever they may have received by virtue of the
The testator cannot deprive his compulsory heirs of their
renunciation or compromise.
legitime, except in cases expressly specified by law.
Transactions Involving Future Inheritance
 P a g e | 85

A renunciation or compromise involving future legitime is an act “if it should ever be, then no agreement concerning present
or transaction involving future inheritance because future property can escape the legal ban. No donation inter vivos, no
legitime is but a portion of the future inheritance of a living reversionary clause, no borrowing of money, and no alienation,
person. not even a contract of sale will avoid the reproach that it
concerns or affects the grantor’s future inheritance.”
Bases for the nullity of every renunciation or compromise
involving future inheritance. Article 906
a. The renunciation of a right or a compromise relating Any compulsory heir to whom the testator has left by any
thereto requires the existence of a right title less than the legitime belonging to him may demand
b. Article 1347 comprehensively prohibits any and all that the same be fully satisfied.
contracts with future inheritance as their object
Article 907
Uson v. Del Rosario
Testamentary dispositions that impair or diminish the
The deed of separation cannot be entertained for the simple legitime of the compulsory heirs shall be reduced on
reason that future inheritance cannot be the subject of a contract petition of the same, insofar as they may be inofficious or
nor can it be renounced. excessive.
Renouncer not estopped Impairment of the Legitime
Nullity may be asserted by renouncer or person who entered Legitime may be impaired by a testator either directly or
into a compromise thereon. indirectly.
A party to a void transaction is not estopped from asserting its Directly – 906 when a testator gives to a compulsory heir a share
nullity. of the inheritance that is short of the legitime due to such
compulsory heir
Any third person prejudiced by the renunciation or compromise
may assert nullity thereof. (unpaid creditor) Indirectly – 907 when a testator makes testamentary
dispositions whose aggregate value exceed the disposable free
Duty to Collate
portion.
If the renunciation or compromise is between a compulsory heir Sebastian Lecture:
and the testator or decedent, and, if valuable consideration was
paid by the testator or decedent to the compulsory heir who Loss in Pari Materia
renounced the legitime or who entered into a compromise in
relation thereto, the payment must be considered a gift given by Art 906 Art. 907
the testator or decedent to the compulsory heir. - The testator gave - The testator gives
him less than the disposition that
- 1061 is squarely applicable (collation) legitime impairs the legitime
- If not with a testator or decedent, the compulsory heir - Gives the heir that of compulsory
would have no duty to bring to collation that which he the legitime be heirs.
received in consideration for the renunciation or satisfied - Reduce the
- Presumption: may disposed portion to
compromise (just pure donation)
natira na satisfy the legitime
Impact on Donations Inter Vivos undisposed - Presumption:
madami kang
All present property of a person will form part of his hereditary binigay na walang
estate unless in his lifetime he disposed or lost the same. masyadong natira.
Intentional Not intentional
Are donations of present property included in the broad Subject to completion of the Legacy/ Devises will be
prohibition on contracts involving future inheritance? NO. (JBL Legitime reduced.
Reyes, Concurrring Opinion in Blas v. Santos)

Direct Impairment
Separate reviewer; illustrations and computations
Indirect Impairment
Separate reviewer; illustrations and computations
Summary of Rules Relating to the Legitime
(1) The legitime is part of the estate of the deceased
person which the law reserves for the compulsory heirs.
- No legitime is reserved of the testator or decedent
has no surviving compulsory heirs.
(2) In its true sense, the legitime is the minimum amount
that a compulsory heir should receive from the testator
or decedent.
- A testator is not prohibited from making a
complete disposition of his estate, provided that all
the compulsory heirs receive the legitime as a
bare minimum.
(3) The compulsory heirs are identified by law.
- They include the legitimate descendants, as
primary compulsory heirs, and the surviving
spouse and illegitimate children as concurring
compulsory heirs.
(4) In general, the net hereditary estate is divided into two
parts: one-half being the strict legitime and the other
half being the free portion.
- From the free portion is paid the legitime of the
surviving spouse and the illegitimate children, with
the surviving spouse enjoying a preference.
- The balance after shall comprise the disposable
free portion which is that part of the testator’s
hereditary estate which may be disposed of by will.
(5) The legitime is allocated among the compulsory heirs
in the proportion prescribed by law.
(6) Legitimate children and in their default, the legitimate
descendants, always inherit the strict legitime, or one-
half of the net hereditary estate.
- They divide the legitime equally amongst
themselves.
- Adopted children may fall under the category of
legitimate children
(7) Legitimate children always inherit in their own right.
Other illegitimate descendants (e.g. grandchildren)
may inherit in their own right or by right of
representation.
P a g e | 86
- Other legitimate descendants inherit in their own
right only if all legitimate children collectively
repudiate the inheritance.
- They inherit be representation where a legitimate
child:
(i) Predeceases the testator or decedent;
(ii) Is declared incapacitated to inherit
(iii) Is lawfully disinherited by the testator
- They inherit by right of representation the legitime
pertaining to the predeceased, incapacitated or
disinherited child.
(8) Legitimate parents and other legitimate ascendants
inherit from their legitimate children and other
legitimate descendants only if the latter is not survived
by legitimate descendants.
- They are excluded by legitimate children
(including adopted) and other legitimate
descendants.
- Legitimate parents and legitimate ascendants
concur with the surviving spouse and illegitimate
children.
(9) The legitime of legitimate parents and legitimate
ascendants may be burdened with reserva troncal.
(10) Illegitimate parents inherit from their illegitimate
children only if the latter is not survived by any issue,
whether legitimate or illegitimate.
- Other illegitimate ascendants (e.g. illegitimate
grandparents) are not compulsory heirs of an
illegitimate child.
(11) In the ascending line, the legitime is divided equally
between the paternal and maternal lines. The legitime
pertaining to each line is divided equally between the
surviving ascendants of such line.
- When only one survives, the legitime pertaining to
that line shall pertain to the sole survivor.
(12) In the ascending line, the right of representation is
denied. Therefore, the rule of proximity applies without
exception, even if as a result thereof either of the
paternal or maternal line is excluded from the
inheritance of a deceased descendant.
(13) The successional right of a surviving spouse is
premised upon a prior valid marriage with the
deceased spouse.
- If declared void or annulled, there is no legal basis
to give the legitime to the survivor.
- If the surviving spouse gave cause for legal
separation, he or she is not entitled to the legitime.

- Innocent spouse may inherit from the offending
spouse
(14) The legitime of the surviving spouse is flexible.
- Concurs with only one legitimate child or with the
legitimate parents or ascendants of deceased
spouse, legitime is one-fourth of the net hereditary
estate
- Concurs with two or more legitimate or adopted
children, legitime is equal to that if the legitimate
or adopted child
- Concurs with only illegitimate children, legitime is
one-third of the net hereditary estate
- Concurs with legitimate parents and illegitimate
children of the deceased spouse, legitime is one-
eighth of the net hereditary estate
- Concurs with both legitimate and illegitimate
children, legitime of the surviving spouse enjoys a
preference over the legitime of the illegitimate
children
- If sole compulsory heir, legitime is one-half of the
net hereditary estate subject to the exception
pertaining to the marriage in articulo mortis
- The legitime of the surviving spouse is never
reduced due to insufficiency of the estate
(15) The legitime of an illegitimate child concurring with a
legitimate child is half the legitime of the latter.
- Illegitimate children inherit from their illegitimate
parents without distinction as to class.
- The right of illegitimate children to the legitime is
transmissible to their own descendants, whether
legitimate or illegitimate, by right of representation.
- Illegitimate children are barred from inheriting ab
intestado from the legitimate relatives of their
father or mother, in the same way that such
legitimate relatives are barred from inheriting from
the illegitimate child.
(16) A testator cannot deprive a compulsory heir of the
legitime except through a valid disinheritance.
- Neither may a testator impose a burden, condition,
charge, encumbrance nor substitution with
respect to the legitime, except as provided in 1083.
(17) A compulsory heir to whom the testator left by any title
less than legitime is entitled to completion thereof. Any
disposition that impairs the legitime shall be reduced at
the instance of the aggrieved compulsory heir. In no
case may a voluntary heir demand the reduction of any
testamentary disposition since a voluntary heir is not
entitled to legitime.
P a g e | 87
- Any disposition that impairs the legitime shall be
reduced at the instance of the aggrieved
compulsory heir.
- In no case may a voluntary heir demand the
reduction of any testamentary disposition since a
voluntary heir is not entitled to the legitime.
(18) There can be no waiver or compromise of future
legitime.
- Any such waiver or compromise is void ab initio.
Article 908
To determine the legitime, the value of the property left at
the death of the testator shall be considered, deducting all
debts and charges, which shall not include those imposed
in the will.
To the net value of the hereditary estate, shall be added the
value of all donations by the testator that are subject to
collation, at the time he made them. (818a)
Determination of the Legitime
Procedure:
1. Determine the total value of the properties left by the
decedent or the testator at time of death
2. Deduct the unpaid debts as well as the other charges
against the estate – result is the Net hereditary estate
3. In the net hereditary estate add the value of
collationable donations – result is the theoretical
hereditary estate
Value of the properties
Less: unpaid debts and estate tax
Net hereditary estate
Plus: Collationable donations
Theoretical Hereditary estate
Theoretical hereditary estate – basis for calculating the
legitime of compulsory heirs
Net hereditary estate – that which will be distributed to the
heirs
Valuation of Properties Forming part of the Estate
Calculated at the time of the decedent’s death
Real estate:
FMV – independent and licensed property dealer or the BIR
zonal value are customarily used for valuation

Shares of stock: (listed in stock exchange) closing price on the
trading day of his death or nearest to the date of his death
Intangibles: valuation of an independent property valuer
Debts as Part of the Hereditary Estate
The debts refer to the contractual as well as extra-contractual
obligations of the decedent which remain outstanding at the time
of his death.
Estate Tax
The NIRC (tax code) imposes a graduated tax on the estate of
a deceased person (0-20%) of the hereditary estate, net of the
exemptions and allowable deductions
Valuation of Collationable Donations
FMV of the gift at the time of the donation
- Value indicated in the relevant deed or donor’s tax
return
Relevance of Collation
Collation is necessary only if the decedent is survived by
compulsory heirs.
If no compulsory heirs, no legitime may be impaired.
Entire estate may be disposed of by the testator.
Collation as a Notional Accounting Process
908 – collation is a mere notional process of bringing back the
values of all donations inter vivos made by the testator to the
value of the net hereditary estate
“notional process”- donated property is not physically taken back
from the donee; only the values of the donations are brought
back to the net hereditary estate
Donee retains ownership; but may be held to make restitution if
donation found to be inofficious
- Appreciation since time of donation: inure to the
benefit of the donee
- Depreciation since time of donation: for the
donee’s account and risk
Illustrative Example
Separate reviewer; illustrations and computations
Sebastian Lecture:
P a g e | 88
If there is primary compulsory heir—half the estate
If there’s non, then secondary heirs.
If wala, don’t divide the estate into two.
Power to Give Donations; Limitations
That a person has the right to give donations Inter vivos is clear
in law. However there are limits to what a person may give by
way of donations.
Vda. De Tupas v. Br. XLII RTC Negros Occidental
Donation of the three parcels of land to Tupas Foundation Inc.
was inofficious because such donation deprived the surviving
spouse of her legitime.
Information Necessary to Determmine an Impairment of the
Legitime
Mateo v. Lagua
In other words, before any conclusion about the legal share due
to the compulsory heir may be reached, it is necessary that
certain steps be taken first. The net estate of the decedent must
be ascertained, by deducting all payable obligations and
charges from the value of the property; then all donations
subject to collation would be added to it. The legitime of the
compulsory heir can then be established. Only then can it be
ascertained whether or not a donation had prejudiced a legitime.
Jurisdiction of the Court
An action for reconveyance must be distinguished from a
proceeding for the settlement of the estate of the deceased
person, such that a court of general jurisdiction has no authority
to entertain issues pertaining to the impairment of the legitime
of the compulsory heirs.
Natcher v. CA
Matters which involve the settlement and distribution of the
estate of the decedent fall within the exclusive province of the
probate court in the exercise of its limited jurisdiction.
Estates without Disposable Free Portion
It is possible that the estate of a deceased person may be:
(i) Barely sufficient to pay the legitime of all
compulsory heirs (one legitimate child, SS, one
illegitimate child)

(ii) Insufficient to pay in full the legitime of some of the
surviving compulsory heirs (one legitimate child,
SS, 2 or more illegitimate children)
In these cases, all donations made by the decedent in his or her
lifetime would be inofficious.
Effects of Collation
2 distinct effects
(1) Collation equalizes the respective shares of all
compulsory heirs in the hereditary estate
(2) Collation protects the legitime of the compulsory heirs
by limiting the value of the donation to that which can
be absorbed by the DFP (if Collationable donation to
stranger)
Collation of Donations to Compulsory heirs
Separate reviewer; illustrations and computations
Collation of Donation to Strangers
Separate reviewer; illustrations and computations
The Insolvent Estate
Separate reviewer; illustrations and computations
Article 909
Donations given to children shall be charged to their
legitime.
Donations made to strangers shall be charged to that part
of the estate of which the testator could have disposed by
his last will.
Insofar as they may be inofficious or may exceed the
disposable portion, they shall be reduced according to the
rules established by this Code.
Imputation of Donations
Separate reviewer; illustrations and computations
Article 910
Donations which an illegitimate child may have received
during the lifetime of his father or mother, shall be charged
to his legitime.
Should they exceed the portion that can be freely disposed
of, they shall be reduced in the manner prescribed by this
Code.
P a g e | 89
Imputation of Donations to Illegitimate Children
Donations made by ether parent to an illegitimate child are
imputable to the legitime of such illegitimate child with respect
to the donor-parent.
Same process of imputation as with legitime of a legitimate child.
Article 911
After the legitime has been determined in accordance with
the three preceding articles, the reduction shall be made as
follows:
(1) Donations shall be respected as long as the legitime can
be covered, reducing or annulling, if necessary, the devises
or legacies made in the will;
(2) The reduction of the devises or legacies shall be pro rata,
without any distinction whatever.
If the testator has directed that a certain devise or legacy
be paid in preference to others, it shall not suffer any
reduction until the latter have been applied in full to the
payment of the legitime.
(3) If the devise or legacy consists of a usufruct or life
annuity, whose value may be considered greater than that
of the disposable portion, the compulsory heirs may
choose between complying with the testamentary
provision and delivering to the devisee or legatee the part
of the inheritance of which the testator could freely dispose.
Order of Reduction or Abatement of Donations and
Testamentary Dispositions
911 applies to:
- Order of reduction or abatement of donations inter
vivos
- Reduction or abatement of dispositions made in
his will
This order is relevant only if:
(i) The testator is survived by compulsory heirs and
(ii) If donations Inter vivos given by the testator in his
lifetime and/or the legacies and devises provided
in his will cannot be accommodated after payment
of the legitime of the compulsory heirs
Summary of rules:
First, calculate the theoretical hereditary estate in accordance
with 908
 P a g e | 90

Second, pay the legitime of the PCH Physical partition is the method prescribed for curing impairment
of legitime.
Third, if the legitime of the concurring compulsory heirs is equal
to the free portion or there is a residual balance in the free Premise of the General Rule
portion, then the donations did not impair the legitime.
Premise: real property is essentially divisible
Fourth, if there is a positive balance, the same shall be used to
Standard: a thing is divisible if its value is not diminished when
pay the preferred legacies and devises.
divided into parts
Fifth, if there remains a balance, the same shall be applied to
Parcel of land may be divisible or not divisible.
ordinary legacies and devises
Examples: contractually impossible to partition a condo unit if
Illustration
the Master Deed prohibits such; partition is impractical if it will
Separate reviewer; illustrations and computations impair the value of the property such as partition of an integrated
factory that produces a product that cannot be physically divided
Order of Preference in Intestate Succession
without impairing its value
Governed by Art.950
Special Rule Where Partition of the Property is Impractical
Article 912
Rules:
If the devise subject to reduction should consist of real
1. If reduction does not absorb one-half (less than) of the
property, which cannot be conveniently divided, it shall go
value thereof, devisee may retain the property but he
to the devisee if the reduction does not absorb one-half of
shall reimburse the aggrieved compulsory heirs in cash
its value; and in a contrary case, to the compulsory heirs;
2. If exactly one-half or more than one-half of value, the
but the former and the latter shall reimburse each other in
aggrieved compulsory heir shall be entitled to retain the
cash for what respectively belongs to them.
property but he shall reimburse the devisee
The devisee who is entitled to a legitime may retain the
Illustrations
entire property, provided its value does not exceed that of
the disposable portion and of the share pertaining to him Separate reviewer; illustrations and computations
as legitime.
Devisee is Also a Compulsory Heir
Article 913
A devisee who is likewise a compulsory heir is entitled to the
If the heirs or devisees do not choose to avail themselves devise in addition to the legitime.
of the right granted by the preceding article, any heir or
Excess of the value of the devise with the free portion may be
devisee who did not have such right may exercise it; should
imputed in the legitime of the devisee.
the latter not make use of it, the property shall be sold at
public auction at the instance of any one of the interested Separate reviewer; illustrations and computations
parties.
Lack of Interest to Acquire the Property
Reduction of Partly Inofficious Devises; General Rule
If the aggrieved heir who is entitled to exercise the right to retain
912 pertains to partly inofficious devises of real property that the property chooses not to exercise the right, the devisee, may
must be reduced in order to preserve the legitime of compulsory exercise the same subject to the requirement of reimbursement.
heirs. (Reverse situation where devisee chooses not to exercise the
right, the aggrieved heir may exercise the right)
Implicit rule: reduction of the devise should, in general, take the
form of a physical partition of the property. If neither is interested, then any other heir or devisee may
exercise the right
Devisee- retains portion not exceeding free portion; the other
portion shall be given to the compulsory heir whose legitime has They shall:
been impaired
 P a g e | 91

(1) Pay the value of the property (2) Upon the death of the parents, the child will be
(2) To the compulsory heirs, to the extent of impairment capacitated to inherit from the parents.
(3) Balance to the devisee (3) Child will indeed accept the inheritance.
(4) The parents will not have a ground to disinherit the
If no one is interested at all, the property shall be sold at a public
child and in fact will not do so.
auction. The proceeds would be given to the aggrieved
compulsory heir and the balance to the devisee. Legal Problems Resulting from the Payment of
Presumptive Legitime
Article 914
Separate reviewer; illustrations and computations
The testator may devise and bequeath the free portion as
he may deem fit. 1. The problem of adjustment
2. The problem when an heir predeceased
- Disposable free portion 3. The problem with disinheritance
Instances of limitation in the distribution of the DFP 4. Tax treatment of the transmission of the presumptive
legitime
1. Testator may not delegate the exercise of testamentary
discretion to a third person Conclusion
2. Testator who has no compulsory heir may dispose by The concept of presumptive legitime is fine in theory. It is a
will all or any part of his estate, but only in favor of
solution that seeks to address the risk that children of a judicially
persons with capacity to succeed reserved marriage might be neglected.
3. If a testator should devise or bequeath the free portion
subject to a fideicommisary substitution, he must Unintentional injustice – presumptive legitime of the children of
comply with 863 the first marriage exceeded that which they are entitled to
4. A testator cannot declare his estate or any part thereof receive
inalienable for a period in excess of 20 yrs.
Not exactly a neat solution – it has the potential of creating
5. A testator cannot subject a testamentary disposition to
serious problems in the adjustment of the successional rights of
an impossible suspensive condition or to an absolute
said children upon the death of the parents.
condition prohibiting a first or subsequent marriage.
6. A testator is prohibited from making a dispocicion
captatoria.
7. A testamentary disposition is favor of a common-law SECTION 6
spouse is void.
In sum, 914 is misleading, right to bequeath the DFP is not
DISINHERITANCE
absolute. Article 915
The Presumptive Legitime A compulsory heir may, in consequence of disinheritance,
The payment of the presumptive legitime to the children be deprived of his legitime, for causes expressly stated by
following the annulment or declaration of nullity of marriage of law.
their parents is a novelty introduced by the FC. Concepts of Disinheritance
Objective is to protect the financial interest of said children. A compulsory heir may not be deprived of legitime except
“presumptive” simply means based on a presumption through a testamentary act known as disinheritance.

The law assumes that the child will eventually inherit from the The causes for such are serious offenses committed by a
parents compulsory heir against the testator.

The law assumes: Only a compulsory heir may be disinherited. A voluntary heir
cannot be disinherited as he is not entitled to the legitime. Thus,
(1) The child will survive his or her parent
 P a g e | 92

going by the definition of disinheritance, the testator cannot Hugo, Tracy). No surviving spouse. Estate shall be distributed
deprive him of it. in accordance with rules of intestacy.
Note: This is an exception to the GR that the testator cannot Heir Intestate Reason
deprive the CH of the legitime. Share
Rose 0 Totally
Total Exclusion from the Inheritance excluded by
Disinheritance results in the total exclusion of the disinherited reason of
disinheritance
heir from the inheritance of the testator. The reason for this is
Hugo 60,000 Legitime
that the testator, after depriving the disinherited heir of his
(30,000) +
legitime, would not be inclined to favor the latter with a share of Share in
the disposable free portion, over which the testator exercises Disposable
almost absolute control over. Free Portion
(30,000)
To sum up, the disinherited heir forfeits: (1) his legitime; (2) his
Tracy 60,000 Legitime
intestate portion, if any, and (3) any testamentary disposition
(30,000) +
made in a prior will of the disinheriting testator. Share in
Illustrations: Disposable
Free Portion
Scenario 1: Ron left a net hereditary estate of P120,000. He (30,000)
was survived by two legitimate children Rose and Hugo, the Total 120,000
surviving spouse Hermione, and an illegitimate child, Link. The
sole disposition in Ron’s will is the disinheritance of Rose for a
Article 916
true and lawful cause. Estate of Ron will be distributed as follows:
Disinheritance can be effected only through a will wherein
Heir Intestate Share Reason
the legal cause therefor shall be specified.
Rose 0 Totally
excluded by Article 917
reason of
disinheritance The burden of proving the truth of the cause for
Hugo 60,000 As sole primary disinheritance shall rest upon the other heirs of the testator,
CH, gets the if the disinherited heir should deny it.
strict legitime.
(1/2 of estate, Requisites of a valid Disinheritance
as per Art. 888) 1. The disinherited heir must be a compulsory heir.
Hermione 30,000 Entitled to ¼ of
2. The disinherited heir must be identified with certainty.
estate as
3. The disinheritance must be for a cause specified by law.
legitime (Art
892) 4. The disinheritance must be made in a valid will.
Link 30,000 Entitled to half 5. The disinheritance must be express.
of the share of 6. The disinheritance must be for a true and certain cause.
Hugo as 7. The disinheritance must be total.
legitime (FC
NOTES:
176)
Total 120,000 Must be Compulsory Heir
No free portion because the estate was just enough to cover the
legitime of the heirs. Voluntary heirs cannot be disinherited as they do not have any
statutory entitlement to the hereditary estate. For this reason,
Scenario 2: Ron, with the same net hereditary estate and sole they cannot be deprived of anything.
disposition in the will, is survived by 3 legitimate children (Rose,
Identified with Certainty

Ideally, testator must designate the disinherited heir by name. If
there are two people with the same name, the testator shall
indicate circumstances by which the disinherited heir shall be
known. (Art 843)
A testator may identify the disinherited heir by description,
provided that there is no doubt as to the identity of the
disinherited heir. Examples: “only son”, “eldest daughter”, “wife”.
Disinheritance is effective provided these are true (he has only
one son, etc)
In case of uncertainty, ambiguity must be clarified from the
context of the will or from extrinsic evidence, excluding testator’s
oral declarations. (art. 789)
If ambiguity is not clarified, disinheritance is void and cannot be
given effect.
An error in the name or personal circumstances of the
disinherited heir will not necessarily invalidate the disinheritance,
provided the true identity of the disinherited heir can be
established with certainty in other ways. (Art. 844)
Must be for a cause specified by law
These causes are exclusive and cannot be extended to include
any other cause even if the testator should consider it to be a
more serious offense.
If an offense carries a penalty, both must be specified in the will.
Otherwise, the disinheritance will be ineffective. The disinherited
heir must be informed of the cause of disinheritance so that he
may be given the chance to dispute the same, if he wishes to.
Testator need not strictly follow the language of the law in
expressing the cause of the disinheritance. It is sufficient that
the testator’s description falls squarely within the ground
specified by law.
Example: If the testator’s son is convicted of adultery with the
spouse of the testator (Art. 919(3)), he may state in his will: “I
disinherit my son for having sexual relations with my wife.
Must be made in a valid will
Not really necessary that the disinheritance and cause be stated
in the same will; it is permissible for the testator to make
reference to the offense committed by the heir in his will and
make the disinheritance in a subsequent codicil.
Example: Harry states in his will that he is gravely offended by
Albus’ (his son) attempt on his life. In the subsequent codicil,
P a g e | 93
Harry may state that, for the reason stated in the prior will, he
disinherits his son, Albus.
Note that there must be a logical connection between the
disinheritance and the cause therefor. Without such, the
disinheritance is void.
Disinheritance is in the nature of a testamentary disposition.
(Seangio v. Reyes) Thus, the will must be formally valid and duly
admitted to probate for the disinheritance to be effected.
Consequently, if the will is denied probate, the disinheritance
cannot be given effect regardless of the guilt or innocence of the
disinherited heir.
Disinheritance becomes ineffective if the testator validly revokes
the will containing the same, or the disinheriting clause
specifically. (Art. 828)
Must be express
Disinheritance cannot be inferred from the mere omission of a
CH in the testator’s will. The law does not recognize tacit
disinheritance.
The omission of a CH in the will, in the proper case, constitute
preterition (Art. 854) or, alternatively, entitle the omitted CH to
teh completion of legitime. (Art. 906)
Must be for a true and certain cause
The cause for disinheritance must exist at the time of the
execution of the will. The offense must have been committed at
the time of the execution of the will. Otherwise, the ground for
disinheritance is not true, not factual, and is at best speculative.
A disinheritance premised upon a future offense is NOT
permitted.
Example: Harry stated in his will that “my son Albus is deemed
disinherited if he should make an attempt on my life in the future.”
This disposition is void and of no effect.
Must be total
If the testator has a valid ground to disinherit a CH, he only has
2 choices:
1. To disinherit the heir, or
2. To pardon the heir.
An offense that merits disinheritance is indivisible and the
corresponding disinheritance is likewise indivisible.

Testator is not permitted to use disinheritance as a tool to partly
deprive a CH of the legitime.
Testator may not exercise the power to disinherit a CH in
the following manner:
1. Partially deprive a CH of the legitime or otherwise
reduce his legitime;
2. Deny the legitime, but give a legacy or devise to the
disinherited heir; or
3. Deny the disinherited heir the right to participate in the
distribution of the estate through testamentary
succession, but permit the same heir to participate in
the distribution of any undistributed part of the
inheritance by intestacy.
Summary
Disinheritance can only occur in testamentary succession.
There can be no disinheritance in intestacy.
Only compulsory heirs may be disinherited. Voluntary heirs
cannot be disinherited as they are not entitled to the legitime.
Any testamentary disposition in favor of a voluntary heir may be
revoked by the testator at any time prior to his death with or
without cause (provided the testator still possesses
testamentary capacity), and such revocation cannot be
construed as a form of disinheritance.
A valid disinheritance carries with it the automatic revocation of
any and all testamentary dispositions made by the testator in
prior wills in favor of the disinherited heir. Such revocation need
not be made expressly in the will that disinherits such
compulsory heir. Remember: disinheritance is the TOTAL
exclusion of an heir from the inheritance of the testator.
A valid disinheritance bars the disinherited heir from inheriting
from the testator both by testacy and by intestacy. In
disinheritance, the testator expressly directs the exclusion of a
compulsory heir from the inheritance. The rules of intestacy are
based on the presumed will of the testator. Hence, if a person
expressly directs the exclusion of the disinherited compulsory
heir, there is no basis to grant successional rights to the
disinherited heir based on the presumed will of the testator.
Burden of Proof
If the disinherited heir denies the cause for disinheritance, the
other heirs who seek to enforce the disinheritance have the
burden of proving the truth of the cause thereof.
P a g e | 94
Competent evidence of culpability on the part of the disinherited
heir is necessary; the word of the testator is not sufficient.
Testator cannot dispense with presentation of proof of guilt
especially if the disinherited heir should deny the accusation.
If the other heirs fail to prove the cause with clear and convincing
evidence, the disinheritance cannot be given effect.
If the disinherited heir does not contest the validity of
disinheritance, or if he admits his guilt, no further proof is
necessary. His silence would amount to an admission of guilt.
His admission of guilt is evidence of highest probative value.
Article 918
Disinheritance without a specification of the cause, or for a
cause the truth of which, if contradicted, is not proved, or
which is not one of those set forth in this Code, shall annul
the institution of heirs insofar as it may prejudice the
person disinherited; but the devises and legacies and other
testamentary dispositions shall be valid to such extent as
will not impair the legitime.
Effects of Void Disinheritance
1. The disinheritance is ineffective
2. The institution of heirs is annulled
3. Legacies and devises may be reduced
Art. 918 identifies three types of void disinheritance:
1. Disinheritance without a specification of the cause;
2. Disinheritance for a cause the truth of which, if
contradicted, is not proved, and
3. Disinheritance for cause not provided by law.
NOTES:
Institution of heirs is annulled
Purpose of annulling the institution of heirs is to make available
sufficient assets to pay the legitime of the ineffectively
disinherited heir. The annulment may be total or partial,
depending on the circumstances of the case. In most cases, the
annulment of the institution of heirs is partial because it is carried
out only to the extent necessary to make good the legitime of
the disinherited heir.
The institution of heirs need not be annulled if, after distributing
the estate based on the will, there remains sufficient assets to
pay the legitime of the ineffectively disinherited heir.
Example of total annulment:
 P a g e | 95

The testator was survived by the following compulsory heirs: a When a testator gives a legacy or a devise, the law presumes
legitimate child, his spouse and an illegitimate child. He that the testator intended to give the legatee or devisee a
disinherited all the CH on the ground that the latter conspired to preferential right to the specific property allotted to him. No such
kill him. Testator then instituted his brother as universal heir. The presumption arises when the testator gives an aliquot portion of
children and the spouse were charged with parricide. Upon his estate to an instituted heir. Thus, should it be necessary to
testator’s death, the will was admitted to probate. However, the reduce or abate a testamentary disposition in order to satisfy the
children and the spouse were subsequently acquitted of the legitime of CH, the instituted heirs must yield to the preferential
crime charged. The universal institution of the testator’s brother rights given to the legatees and devises.
must be annulled in its entirety because the legitime of the CH
Example:
covers the entire estate of the testator.
Example of partial annulment: Harry has a net hereditary estate of P1.2M. He was survived by
his three legitimate children (James, Albus and Luna), his
Harry, the testator, was survived by 3 legitimate children: James, spouse Ginny, and an illegitimate child (Frank). In his will, he
Albus, and Lily. In his will, Harry disinherited James without made the following dispositions:
stating the cause, and instituted Albus and Lily as universal heirs
1. Disinherited Frank for allegedly maltreating him;
to the net estate of P120,000. (60k each for Albus and Lily,
2. Instituted Ron to 1/20 of the net estate;
excluding James from inheritance) However, the disinheritance
3. Gave a devise of a parcel of land to Hermione valued
of James is void, and he cannot be deprived of the legitime. As
at P250k, which he expressly declared preferential;
such, to recover the legitime under Art. 918, the institution of
and
Albus and Lily as universal heirs shall be annulled, but only to
4. Gave a legacy of P90k to Neville.
the extent necessary to allow the recovery of James’ legitime. In
sum: Division was to be as follows:
Heir Share Reason James 200k Legitime
Represents Albus 200k Legitime
James’ Lily 200k Legitime
legitime which Ginny 200k Legitime
he is entitled to Ron 60k Institution as
James 20,000
recover due to VH
the nullity of Hermione 250k Preferred
his devise
disinheritance. Neville 90k Ordinary
Their original legacy
entitlements to Total 1.2M
P60,000 each
as universal
heirs must be Due to sufficient proof, the court declared void the disinheritance
Albus and Lily 50,000 each
proportionally of Frank. As such, Frank is entitled to recover his legitime of
reduced so 100k, ½ of the legitime of a legitimate child.
that James’
legitime could Due to this, the annulment of certain testamentary dispositions
be paid. is required. James, Albus, Lily and Ginny cannot contribute
since all they got was their respective legitime which cannot be
reduced. Thus, the recovery of Frank’s legitime will follow the
Legacies and devises may be reduced
order of reduction and abatement prescribed in Art. 911.
Legacies and devises shall be reduced or abated only if after
Ron’s institution to 1/20 of the estate (P60k) must be annulled
the annulment of the institution of heirs there are insufficient
in its entirety. However, this is insufficient to cover Frank’s
assets to satisfy the legitime of the disinherited CH.
legitime. The legacies and devises given by the testator must be
reduced to the extent necessary to complete Frank’s legitime.
 P a g e | 96

Neville’s legacy of 90k will be reduced by 40k to complete the annulment should have been total, as in the case of
legitime of Frank. He is entitled to keep the balance of 50k. preterition.
Given the facts, Hermione’s preferred devise cannot be reduced
Atty. Sebastian believes in the second view as it is
and thus remains the same. In the order of preference in Art.
consistent with the intent of the law.
911, a preferred legacy or devise is reduced or annulled only if
the other legacies or devises are insufficient to pay the legitime Article 919
of CH.
The following shall be sufficient causes for the
Final division: disinheritance of children and descendants, legitimate as
well as illegitimate:
James 200k Legitime
Albus 200k Legitime (1) When a child or descendant has been found guilty of an
Lily 200k Legitime attempt against the life of the testator, his or her spouse,
Ginny 200k Legitime descendants, or ascendants;
Ron 0 Institution
annulled (2) When a child or descendant has accused the testator of
pursuant to Art. a crime for which the law prescribes imprisonment for six
918 years or more, if the accusation has been found groundless;
Hermione 250k Preferred
devise (3) When a child or descendant has been convicted of
protected as adultery or concubinage with the spouse of the testator;
per Art. 911
(4) When a child or descendant by fraud, violence,
Neville 50k Ordinary
legacy reduced intimidation, or undue influence causes the testator to
as per Art. 911 make a will or to change one already made;
and 918 (5) A refusal without justifiable cause to support the parent
Total 1.2M or ascendant who disinherits such child or descendant;
(6) Maltreatment of the testator by word or deed, by the
Extent of Recovery
child or descendant;
This article guarantees the recovery of the legitime of an heir
(7) When a child or descendant leads a dishonorable or
under a void disinheritance. However, it is unclear whether the
disgraceful life;
nullity of disinheritance would entitle the heir to recover beyond
the legitime. There are two views regarding this: (8) Conviction of a crime which carries with it the penalty of
civil interdiction.
1. 1st view: Disinheritance without stating the cause is
void. Since a void act produces no effect whatsoever, Who may be Disinherited
the successional rights should not be adversely
affected or diminished. As such, the disinherited heir Legitimate and illegitimate children and descendants may be
should retain full and unimpaired successional rights. disinherited. This includes adopted children who are deemed to
2. 2nd view: The testator’s sentiment towards the be legitimate children of the adopted under FC 189.
disinherited heir should not be totally disregarded. Attempt on the Life of the Testator
Except for the legitime of the heir, the testator is at
liberty to dispose his estate according to his wishes, 1. The Victim
restrained only by matters of morality, good customs, The child or descendant who makes an attempt on the life of the
public policy, and public order. Furthermore, under Art. following people may be disinherited by his parents or
918, the partial annulment of the institution of heirs is ascendants:
intended solely to allow the disinherited heir to recover
his legitime. If the intention of the law were to restore (1) his or her brother or sister, whether full or half-blood;
the disinherited heir to full successional rights, then the (2) his or her nephews or nieces, whether full or half-blood;

(3) his or her grandparents or other ascendants if the latter
are ascendants of the disinheriting parent, or
(4) his or her biological parent or stepparent
The legitimacy or illegitimacy between the victim, the testator
and the disinherited heir are irrelevant.
HOWEVER, if the attempt is made on the life of the testator’s
spouse, it is necessary that the testator and the spouse are
lawfully married. Otherwise, the victim cannot be considered as
spouse of the testator.
If the marriage between the testator and victim is voidable, they
are considered spouses until the marriage is annulled by final
judgment. Thus, if a child makes an attempt on the life of the
spouse of the testator prior to the decree of annulment, there is
a ground for the testator to disinherit a child.
2. Stage of commission of the crime
The cause for disinheritance is applicable to the attempted,
frustrated or consummated stage of the commission of the crime.
3. Intent to Kill
This is the critical element of this cause for disinheritance. Thus,
if the defendant during trial is able to prove a justifying or
exempting circumstance, criminal intent would be missing and,
consequently, there would be no criminal conviction which is the
legal basis for the testator to disinherit the defendant CH.
Nor would there be any legal basis to disinherit a child or
descendant for the death of the aforementioned resulting from
the criminal negligence of the child or descendant due to the
absence of an intent to kill.
4. Necessity of final conviction
Disinherited heir must be convicted by final judgement of the
offense charged.
Testator may disinherit a CH after the latter has committed the
offense even if there has been no final conviction yet. However,
it is necessary that final conviction is eventually obtained.
An acquittal, whether due to finding the defendant innocent or
due to reasonable doubt, renders the disinheritance ineffective.
The grant of executive clemency will not render the
disinheritance ineffective. It does not negate the fact that a crime
was committed nor is it one of the grounds for eliminating the
effects of a valid disinheritance.
5. Degree of participation in the crime
P a g e | 97
This cause does not make any distinction as to the degree of
participation of the disinherited heir in the offense charged.
Disinheritance is valid even if he is convicted as a mere
accomplice or as an accessory after the fact.
Degree of participation does not make the heir less unworthy to
inherit.
False Accusation
This has three essential elements:
1. CH must make an accusation against the testator;
2. Accusation is for a crime for which the law imposes a
penalty of imprisonment for 6 years or more;
3. The Court acquits the testator and declares accusation to
be false.
1. The accusation
The heir need not accuse the testator directly by initiating the
criminal proceedings. The following acts may constitute an
Indirect accusation:
(1) Intervention of the heir in the court proceeding against
the testator initiated by the prosecutor;
(2) Giving oral testimony during trial that would tend to
prove guilt of the testator;
(3) Testifying for the prosecution in a case filed against
testator;
(4) Withholding evidence favorable to testator;
(5) Refusal without just cause to give truthful testimony
which would prove testator’s innocence of the crime.
The filing of a complaint-affidavit by an heir against the
testator before the prosecutor for preliminary investigation
is in the nature of an accusation. However, dismissal of the
complaint at that level is no indication that the accusation is
false.
Prosecutor has no authority to rule on the guilt or innocence
of the accused. Thus the dismissal cannot be used as basis
for disinheriting the accusing heir.
2. The crime
Accusation must refer to the commission of a crime for which
the law prescribes a penalty of imprisonment for six years or
more.

Basis of disinheritance is the gravity of the crime directly or
indirectly imputed by the heir to the testator and the
corresponding penalty.
If the imposable penalty is below the threshold, no cause for
disinheritance.
3. A definitive acquittal
There must be a judicial declaration that the accusation was
baseless thereby resulting in the acquittal of the testator. It
requires that the testator is judicially determined to be innocent
of the crime charge.
An acquittal based on any other reason such as the insufficiency
of evidence, prescription of the crime, reasonable doubt, or
failure to prosecute, cannot be considered false and there would
be no basis for the testator to disinherit the accusing heir.
Adultery or Concubinage
1. Necessity of criminal conviction
As adultery and concubinage are felonies defined in the RPC, it
is necessary that the child or descendant be convicted by final
judgment of the crime of adultery or concubinage for it to
constitute a ground for disinheriting a child or descendant.
REMEMBER:
Adultery – crime committed by:
(1) a married woman who has sexual intercourse with a
man who is not her husband, and
(2) by a man who has carnal knowledge of her, knowing
her to be married.
Concubinage is a crime committed by a man who:
(1) keeps a mistress in the conjugal dwelling, or
(2) shall have sexual intercourse with a woman not his wife
under scandalous circumstances; or
(3) who cohabits with a woman not his wife in any other
place.
Here, the man is the principal while the woman/concubine
is charged as a principal by indispensable cooperation.
A testator may disinherit a child or descendant on the ground of
adultery or concubinage at any time after the commission of the
offense. The conviction may come later. However,
disinheritance will only be effective once final judgment is
obtained.
P a g e | 98
2. The disinherited offender
The penalty of disinheritance under Art. 919(3) is imposed only
on the guilty child or descendant and not on the guilty spouse.
The offended spouse may disinherit the offending spouse under
Art. 921(4), giving cause for legal separation. One of the
grounds for legal separation is the sexual infidelity of a spouse.
Fraud or Coercion
A testator may disinherit a descendant who resorted to fraud,
violence, intimidation or undue influence to cause the testator to
make a will or change one already made.
1. Definition of the vices of consent
(a) Violence and intimidation
Under Art. 1335, there is violence when in order to
obtain consent, serious or irresistible force is employed.
There is intimidation when one of the contracting
parties is compelled by a reasonable and well-
grounded fear of an imminent and grave evil upon his
person or property, or upon the person or property of
his spouse, descendants or ascendants to give his
consent.
To determine the degree of intimidation, the age, sex
and condition of the person shall be borne in mind.
A threat to enforce one's claim through competent
authority, if the claim is just or legal, does not vitiate
consent.
(b) Undue influence
Under Art. 1337, there is undue influence when a
person takes improper advantage of his power over the
will of another, depriving the latter of a reasonable
freedom of choice.
The following circumstances shall be considered: the
confidential, family, spiritual and other relations
between the parties, or the fact that the person alleged
to have been unduly influenced was suffering from
mental weakness, or was ignorant or in financial
distress.
(c) Fraud
Under Art. 1338, there is fraud when, through insidious
words or machinations of one of the contracting parties,

the other is induced to enter into a contract which,
without them, he would not have agreed to.
2. Nullity of the will executed with vice of consent
To be valid, a will must be executed freely by the testator. The
law requires him to acknowledge before a notary public that he
freely and voluntarily signed the will. (Art. 806)
A will shall be denied probate, among other grounds, if consent
was vitiated in a manner provided for in Art. 839, namely: xx (3)
If it was executed through force or under duress, or the influence
of fear, or threats; (4) If it was procured by undue and improper
pressure and influence, on the part of the beneficiary or of some
other person; (5) If the signature of the testator was procured by
fraud.
3. The unworthy heir
A CH who coerces the testator to execute a will or otherwise
to change one already made violates the testator’s
fundamental right to control the disposition of his estate.
The law considers the gravity of the offense to be sufficient
to justify the disinheritance of the offending heir.
4. Necessity of executing a new will or codicil
A testator who invokes this cause for disinheritance must,
at any time subsequent to the will executed under a vice of
consent, execute a new will or codicil in which he shall
disinherit the offending heir.
Refusal to give support
Art. 194 provides that Support comprises everything
indispensable for sustenance, dwelling, clothing, medical
attendance, education and transportation, in keeping with the
financial capacity of the family.
GR: Support must be provided on the basis of the need of the
person entitled to it and the financial capacity of the person
obliged to give it.
Parents are obliged to support their children, and such obligation
goes hand in hand with their exercise of parental authority over
the latter, save in cases where the law extends such obligation
way past the age of emancipation.
If an ascendant disinherits a descendant on the basis of the
latter’s unjustifiable refusal to give support, the necessary
premises are:
P a g e | 99
(1) The ascendant was, at some time in the past, in need
of support;
(2) The descendant who was requested to provide it
refused to give support; and
(3) The refusal to give support to the ascendant was
unjustified.
Maltreatment of the Testator
This can be committed in two ways: by word or by deed.
Maltreatment by deed: committed through use of physical
violence on the testator, but without intent to kill and
consequently without constituting an attempt on the life of the
testator.
Maltreatment by word: committed by use of grossly abusive
language on the testator that demonstrates in no uncertain
terms the utter disrespect of the offender towards the testator.
Need not be slanderous; must be grossly disrespectful to the
testator who deserves respect.
Maltreatment, to be a cause for disinheritance, must be
intentional and its purpose is to demonstrate lack of respect for
or otherwise to humiliate the testator.
In Seangio v. Reyes, the details of the maltreatment of Segundo
by his son were delineated in “Kasulatan sa Pag-aalis ng Mana.”
The incidents, taken as a whole, were considered by the court
as a form of maltreatment of Segundo by his son Alfredo. As
such, it was deemed to be a sufficient cause for the
disinheritance of a child or descendant under Art. 919.
Leading a Disgraceful Life
Cause here is the embarrassment caused to the parentsor
ascendants by a child or descendant who leads a disgraceful or
dishonorable life.
What constitutes a disgraceful or dishonorable life is a matter of
opinion, often influenced by the moral standards of a particular
community.
Those who seek the exclusion of the disinherited heir must
prove that the latter conducted himself or herself in a manner
that brought shame to the parent who disinherited him or her.
A single or isolated act , no matter how disgraceful or
reprehensible, is not sufficient to justify the disinheritance of a
child or descendant.
Keyword here is “lead” connoting that it must be continuing.
Civil Interdiction

This is an accessory penalty imposed by Art. 41 of the RPC
upon convicted felons sentenced to suffer the penalty of
reclusion temporal (12 years and 1 day to 20 years) or higher.
Definition: deprivation of an offender during the time of his
sentence of the rights of parental authority or guardianship,
either as to the person or property of any ward, of marital
authority, of the right to manage his property, and of the right to
dispose of such property by any act or any conveyance inter
vivos.
Effectivity of disinheritance is deferred until such time as the
child is convicted of final judgment whereupon the accessory
penalty of civil interdiction is imposed.
Article 920
The following shall be sufficient causes for the
disinheritance of parents or ascendants, whether legitimate
or illegitimate:
(1) When the parents have abandoned their children or
induced their daughters to live a corrupt or immoral life, or
attempted against their virtue;
(2) When the parent or ascendant has been convicted of an
attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(3) When the parent or ascendant has accused the testator
of a crime for which the law prescribes imprisonment for
six years or more, if the accusation has been found to be
false;
(4) When the parent or ascendant has been convicted of
adultery or concubinage with the spouse of the testator;
(5) When the parent or ascendant by fraud, violence,
intimidation, or undue influence causes the testator to
make a will or to change one already made;
(6) The loss of parental authority for causes specified in this
Code;
(7) The refusal to support the children or descendants
without justifiable cause;
(8) An attempt by one of the parents against the life of the
other, unless there has been a reconciliation between them.
Common Causes for Disinheritance
Par. 2 – 5 : same reasoning as 919.
Abandonment of Children
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This means the total neglect of parental obligations towards the
children. It includes the failure, omission, or refusal to give
financial support, and the obligation to give care, guidance, as
well as physical, spiritual, and emotional attention reasonably
expected of responsible parents.
Does not necessarily have to constitute a criminal offense.
Example: An unwed mother gives up her infant to a friend on
account of poverty is guilty of abandonment even if her intention
is to give the infant a change for a better life.
When a parent voluntarily gives consent to the adoption of his
or her child, the parent is not guilty of abandonment. Giving
consent to adoption of one’s child does not make the parent
irresponsible; adoption is a lawful process.
Inducing the Child to Live a Corrupt or Immoral Life
One of the duties of the parent is to teach and guide them to live
a decent and honorable life. A parent is expected to teach them
and instill in them good values. To induce one’s daughter to live
a corrupt or immoral life is a breach of this duty.
Under the present Code, a parent need not induce the daughter
to become a prostitute; it is sufficient that parent induced her to
live a corrupt or immoral life.
Attempt on Virtue
This may constitute attempted rape, attempted seduction, or
acts of lasciviousness. Depending on the age of victim, could
also constitute child abuse.
Neither the prosecution for such offenses nor a conviction is
necessary to justify the disinheritance of a parent or ascendant.
What is important is that the offending parent or ascendant
performed such acts with inappropriate sexual undertones.
Loss of Parental Authority
1. Termination of parental authority under Art. 229
PA is terminated, without prejudice to the restoration thereof to
the parent divested of it in the ff. cases:
Cause of termination of Restoration of PA
PA
Adoption of Child Rescission of adoption,
under FC 192, provided
the child has not been
emancipated at the time
of rescission

Appointment of general Termination of
guardian guardianship
Judicial determination ofJudicial restoration of
the abandonment of the PA upon return of parent
child who abandoned the
child
Judicial declaration of Judicial restoration of
absence or incapacity of PA to the returning
the parent exercising PA absentee parent;
regaining of capacity of
incapacitated parent.
2. Suspension of parental authority under Article 230
Under this article, PA is suspended upon conviction by a parent
of a cfime with carried the accessory penalty of civil interdiction.
PA is restored upon service of sentence, or upon receipt of
executive clemency or amnesty by convicted parent.
No fault can be attributed to the convicted parent whose PA is
temporarily suspended
3. Suspension or deprivation of parental authority under
Article 231
Under this article, PA may be suspended, whether due to the
willful acts of the parent or by his or her culpable negligence.
Suspension of PA may be lifted by court in the appropriate cases.
If the gravity of the offense is serious, the court may deprive the
erring parent of PA.
4. Permanent deprivation of parental authority under
Article 232
The parent shall be permanently deprived of PA if he or she
subjects the child or allowed the child to be subjected to sexual
abuse. No possibility for restoration of PA.
5. Observations on loss of parental authority
PA may be terminated, suspended or divested.
Termination of PA under FC 228 imputes no fault on the part of
parents. (death of parent, death of child, emancipation of child)
No fault can be imputed on parents in the ff. cases, as regards
FC 229 and 230:
(1) Suspension of PA as a consequence of civil interdiction;
(2) Termination of PA as a consequence of adoption of
child.
P a g e | 101
(3) Appointment of a general guardian for the child.
(4) Judicial declaration of absence or incapacity of a
parent.
Disinheritance of a parent is justified only when the loss of PA is
for culpable act or omission of the erring parent.
Disinheritance is full justified in the ff. cases:
(1) Suspension of PA under FC 231;
(2) Deprivation of PA in FC 232
(3) Termination of PA under FC 229 due to: (1)
abandonment of child, and (2) final judgment divesting
PA.
6. Recovery of parental authority
PA may be restored by order of the court, EXCEPT:
(1) When PA is terminated under FC 228
(2) Permanent deprivation under FC 232.
Atty. Sebastian is of the view that the recovery or restoration of
PA cannot obliterate the sins of the past. It should have no effect
on the right of child to disinherit an unworthy parent. The basis
for disinheriting the parent is not the fact of losing PA but for the
commission of underlying culpable acts that justified the loss of
PA. (Such as when parent subjects the child to sexual abuse)
Attempt of a Parent on the Life of the Other
A child may disinherit a parent who made an attempt on the life
of the other parent, unless there has been reconciliation
between the parents.
1. Conviction by final judgment
Prior conviction by final judgment is not necessary. However,
there must have been intent to kill the other parent.
2. Relationship with the testator
The plotter and victim are the biological parents of the testator.
Does not apply to adopting parents because they are not CH of
the adopted child.
Does not apply if plotter is a stepparent who attempted on the
life of the biological parent. Stepparent is not CH.
3. Effect of Reconciliation of the Parents
The child loses the right to disinherit if the plotter and victim
reconciled.
 P a g e | 102

Mere fact that spouses lived under one roof after one made an prostitution, or connivance in such corruption or
attempt on the life of the other implies reconciliation. inducement;
(4) Final judgment sentencing the respondent to
4. Paragraphs 2 and 8 compared
imprisonment of more than six years, even if pardoned;
Par. 2 Par. 8 (5) Drug addiction or habitual alcoholism of the respondent;
Requires final conviction Does not need final (6) Lesbianism or homosexuality of the respondent;
for disinheritance to be conviction (7) Contracting by the respondent of a subsequent bigamous
effective marriage, whether in the Philippines or abroad;
Reconciliation between Reconciliation will (8) Sexual infidelity or perversion;
parents will not render render disinheritance (9) Attempt by the respondent against the life of the petitioner;
ineffective the ineffective. or
disinheritance (10) Abandonment of petitioner by respondent without
justifiable cause for more than one year.
Article 921 The spouse who gave cause for legal separation may be
The following shall be sufficient causes for disinheriting a disinherited by the offended spouse.
spouse: A judicial decree for legal separation is NOT necessary. Nor is
(1) When the spouse has been convicted of an attempt a criminal conviction necessary. It is the fact of giving cause to
against the life of the testator, his or her descendants, or legal separation that justifies the disinheritance.
ascendants; Article 922
(2) When the spouse has accused the testator of a crime for A subsequent reconciliation between the offender and the
which the law prescribes imprisonment of six years or more, offended person deprives the latter of the right to disinherit,
and the accusation has been found to be false; and renders ineffectual any disinheritance that may have
(3) When the spouse by fraud, violence, intimidation, or been made.
undue influence cause the testator to make a will or to Concept of Reconciliation
change one already made;
Pardon must refer to the forgiveness of a specific offense
(4) When the spouse has given cause for legal separation; committed by the offender against the offended party. To be
(5) When the spouse has given grounds for the loss of effective, the pardon must be accepted by the offender.
parental authority; Pardon by the offended party however is not enough to render
(6) Unjustifiable refusal to support the children or the other ineffective the disinheritance. It must be followed by
spouse. reconciliation.

Common Causes for Disinheritance
Par. 1-3, 5-6 have been discussed in Art.920.
Giving cause for Legal Separation
FC 55 provides 10 grounds for legal separation:
(1) Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a child
of the petitioner;
(2) Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner,
a common child, or a child of the petitioner, to engage in
Reconciliation is the mutla restitution of feelings between the
offender and the offended party. It is established by evidence
and its existence is a matter for the court to determine.
In Bugayong v. Ginez, there was condonation of the wife by the
husband as evidenced by the acts of the husband: persuading
her to go with him to his cousin’s house where they slept as
husband and wife for 2 days. The reconciliation occurred almost
10 months after he discovered the wife’s infidelity.
Effect of Reconciliation
This renders the disinheritance ineffective. No particular form for
this; it may be express or implied. However, it must be proved
as a fact.

Common Grounds for Disinheritance and Unworthiness
Five causes for disinheritance in Ar. 919-921 that also constitute
grounds for incapacity by reason of unworthiness:
(1) Attempt on the life of the testator, his spouse,
ascendants or descendants;
(2) Abandonment of children or inducing their daughters to
live a corrupt or immoral life, or attempting against their
virtue;
(3) Falsely accusing the testator of a crime for which the
law imposes a penalty of imprisonment for 6 years or
more.
(4) Conviction of adultery or concubinage with spouse of
testator;
(5) Use of fraud, violence, intimidation or undue influence
in causing the testator to make a will or change on
already made.
Obliterating the Effects of Disinheritance and Unworthiness
Art. 1033 provides two means by which unworthiness may be
obliterated:
(1) if the testator had knowledge of such unworthiness at
the time he made the will and nonetheless left
something for the unworthy heir (implied condonation)
(2) If, having known of unworthiness after execution of will,
testator should condone the unworthiness in writing
(express condonation)
The Conflict
As far as the common grounds are concerned, problem arises if
the testator, after having disinherited the heir, should
subsequently reconcile with the latter.
Theoretically, disinherited heir who has reconciled with testator
can still be denied successional rights because of the lingering
effects of unworthiness.
Two views:
First view: While reconciliation renders ineffective the
disinheritance of the CH, the latter remains unworthy to inherit
from testator except if he should execute a written deed of
condonation.
Second view: If testator exercises the right to disinherit the
offending heir, he is deemed to have submitted to the rules of
disinheritance. By reconciling with the disinherited heir, testator
makes known that he is no longer interested in enforcing the
disinheritance.
P a g e | 103
The second view appears to be a reasonable reconciliation of
Art. 922 and 1033.
Article 923
The children and descendants of the person disinherited
shall take his or her place and shall preserve the rights of
compulsory heirs with respect to the legitime; but the
disinherited parent shall not have the usufruct or
administration of the property which constitutes the
legitime.
The Right of Representation
Disinheritance of a CH entitles the children and descendants of
such to exercise the right of representation.
Objective of the law is to temper the effect of disinheritance.
These descendants have committed no offense against the
testator that would justify their exclusion from the distribution of
the estate.
The ff. rules are applicable:
1. The right of representation is generally available only
in the direct descending line, never in the ascending
line. (Art. 972) Disinherited heir must be a child or
descendant of testator.
2. Right of representation in testamentary succession
only covers the legitime. (art. 923) In intestate
succession, it covers the entire intestate share of the
defaulting intestate heir. (Art. 981)
3. In order to exercise the right of representation, the
representative must be capable of succeeding the
testator. As such, the exercise of the right is subject to
Art. 992.
Example:
A testator was survived by four legitimate children A, B, C,
D , and the surviving spouse E. The sole disposition in the
will is the disinheritance of A. A has two descendants, F, a
legitimate son, and G an illegitimate daughter. Net
hereditary estate is P200k.
Without disinheritance, the legitime is as follows:
Net Estate 200k
Strict Legitime 100k
Free Portion 100k
Distribution of A 25k
Legitime B 25k
C 25k
 P a g e | 104

D 25k A testator may charge with legacies and devises not only
E 25k his compulsory heirs but also the legatees and devisees.
Total Legitime 125k
Disposable Free 75k The latter shall be liable for the charge only to the extent of
Portion the value of the legacy or the devise received by them. The
compulsory heirs shall not be liable for the charge beyond
the amount of the free portion given them.
Since will is silent on distribution of the estate, rules on intestacy
govern. Burden of Legacies and Devises

Heir Legitime Representation Intestate Total Tolentino explains: The reason for this burden is that, under the
Share old Civil Code, the heir is the continuation of the personality of
B 25k 18,750 43750 the deceased. By diminishing his own patrimony through
C 25k 18,750 43750 provisions for payments of legacies and devises, he diminishes
D 25k 18,750 43750 that which would pass to those who continue his personality.
E 25k 18,750 43750 Under our present law, the heirs are no longer the continuation
F 25k 25k of the personality of the deceased. The property of the testator
Total 100k 25k 75k 200k remains charged with his obligations , and it passes to the heir
only after all debts, charges and expenses have been fully paid.
If there is any person who, under our present law, can be
F, legitimate son of A (the disinherited heir), got the legitime of
considered as continuing the personality of the deceased, it is
A but nothing more.
the executor or administrator in the proceedings for the
G, as an illegitimate child of A, is not capable of succeeding settlement of the estate of the testator.”
because of Art. 992.
GR: Legacies and devises are burdens on the estate of the
deceased which are to be paid by the executor or administration
CHAPTER 3 from the assets of the estate.
LEGAL OR INTESTATE SUCCESSION Exception: Testator may impose the burden of paying the
legacies and devises upon a particular heir, legatee or devisee.
SECTION 7 LEGACIES AND DEVISES
Note: under the old Code, these were referred to as sub-
Article 924 legacies and sub-devises.
All things and rights which are within the commerce of man In any case, the burden of paying:
be bequeathed or devised.
When imposed on a VH: Cannot exceed the value of the gift
Concept of Legacy and Devise given to him
Legacies – gifts of movable property given by the testator to a When imposed on CH: cannot exceed the value of his
specified beneficiary under such conditions as may be provided participation in the disposable free portion.
in the will.
Article 926
Devises – gifts of immovable property given by the testator to a
specified beneficiary under such conditions as may be provided When the testator charges one of the heirs with a legacy or
in the will. devise, he alone shall be bound.
Object must be a thing or right that is within the commerce of Should he not charge anyone in particular, all shall be liable
man, i.e., if it is capable of private ownership or can otherwise in the same proportion in which they may inherit.
be the subject matter of a contract.
Individual and Collective Responsibility
Article 925
 P a g e | 105

When the testator imposes the burden of paying the legacy or Responsibility for Loss or Destruction of Thing Bequeathed
devise upon a particular heir, he alone shall be obliged to pay it,
The exclusive responsibility for the possession, care and
subject to the limitation of Par. 2 of Art 925.
preservation of the estate of the testator is vested in the
If the burden is imposed collectively upon the heirs, legatees executor or administrator. He is mandated to take possession
and/or devisees, all of them shall be liable to pay the same in and charge of the goods, chattel, rights, credits, and estate of
the same proportion in which they inherit. the deceased.
Example: If an heir or some of them should take possession of the estate
or any part thereof, such possession is, at the very least,
Eric instituted his 3 legitimate sons Alvin, Simon and Theo as
unauthorized. Established procedures mandate the
universal heirs to an estate of P180k. Alvin gets ½, Simon gets
administration of the estate by either the executor or
1/3 and Theo gets 1/6; with a condition that the heirs shall give
administrator to ensure the payment of debts, taxes, and
a legacy of P30k to Tina. The distribution is as follows:
charges.
(Liabili If some of all of the heirs take possession of the estate or any
Free Net
Instituti Legiti Lega ty for
Heir Portio Shar part thereof prior to the issuance by the court of an order for the
on me cy Legac
n e distribution thereof, and in the meantime any property forming
y)
Alvin 90k 30k 60k (20k) 70k part of the estate is lost and destroyed, the possessor are held
Simo 60k 30k 30k (10k) 50k jointly and severally liable for such loss or destruction. Basis:
n unauthorized possession of the thing.
Theo 30k 30k 0 0 30k The unauthorized possessor is not exempt from liability even
Tina 30k 30k though the loss or destruction may have been caused by force
Total 180k 90k 90k 30k (30k) 180k
majeure.
Article 928
Since the legacy payable to Tina is a burden imposed by the
estate on all the CH, there is a need to ensure the preservation The heir who is bound to deliver the legacy or devise shall
of the legitime. be liable in case of eviction, if the thing is indeterminate and
is indicated only by its kind.
The shares were broken down into two parts: legitime and
disposable free portion. Note: cf. Art. 1548
Remember: the legitime cannot be burdened with any charge. Warranty for Generic Legacies and Devises
(Art.904) As such, the responsibility for the payment of the
legacy to Tina can only be imposed on the CH who benefitted An heir charged with a legacy of a generic thing is bound to
from the distribution of the disposable free portion. deliver, as a matter of good faith, that thing which he has the
right, power and authority to deliver.
Theo cannot be made responsible because all he got was his
legitime which cannot be impaired. Alvin and Simon are the only Art. 928 makes the heir a warrantor of his title to and his right of
ones who can contribute. The legacy of Tina is paid by debiting and to the possession of the thing which he will deliver to the
proportionately the respective shares of Alvin and Simon in the legatee.
disposable free portion. Since Alvin gets twice as much as Example:
Simon, he contributes twice as much in the payment of legacy
to Tina. Harry (testator) imposed upon James (heir) the obligation to give
to a ward of Harry a car with a value of not less than P100k.
Article 927
James owns two cars:
If two or more heirs take possession of the estate, they shall
be solidarily liable for the loss or destruction of a thing 1. one which belongs to and is registered in his name
devised or bequeathed, even though only one of them without any lien or encumbrance.
should have been negligent.

2. One registered in his name, purchased on installment
basis and is subject to a chattel mortgage in favor of a
financing company to whom he is remitting monthly
amortization payments.
If James, in discharging the burden imposed upon him, should
deliver the encumbered (2nd) car, and he later defaults in the
remittance of the monthly amortization resulting in the
foreclosure of the chattel mortgage, the seizure of the car from
the legatee would make James liable to the latter under Art. 928.
Sebastian Lecture:
Relate this Article to Art. 1548.
Exclusion to the Warranty
Art. 928 explicitly refers to legacies and devises of generic
things.
If it is a specific thing, the warranty in Art. 928 is inapplicable and
the heir cannot be made liable for eviction.
Why? Two reasons:
1. By delivering the specific thing that the testator ordered
the heir to give to the legatee or devisee, the heir’s
faithful compliance with such directive does not and
cannot serve as basis for bad faith. He was merely
obeying the directive of the testator.
2. If the testator knew the limitation to or restriction on the
heir’s ability to deliver the thing that he ordered to be
delivered to the legatee or devisee, or the uncertainty
of the heir’s title to the thing he ordered delivered, it can
reasonably be assumed that the testator intended the
legatee or devisee to bear the risk of potential loss of
the thing through eviction.
Extension of Warranty
Some commentators believe that the warranty in Art. 928 should
not be limited to eviction and that it includes the warranty against
hidden defects. (non-apparent defects which may or may not be
known to the heir) They reason that if good faith requires an heir
to deliver to the legatee a thing which the heir has a right to
deliver, so too must he deliver a thing which he knows is free of
hidden defects.
If so, the liability for a breach of this extended warranty must be
premised on two important factors:
1. That the heir delivered the thing with knowledge of the
hidden defects;
P a g e | 106
2. That the heir had two or more things to choose from
and he deliberately chose the one with hidden defects.
The heir cannot be accused of bad faith if: (1) he did not know
of the hidden defect; (2) if he had no option but to deliver the
defective thing which was the only one he had. In either case,
heir cannot be made liable for breach of warranty.
Since the application of this extended warranty is by analogy
and not by express provision of Art. 928, the more lenient
treatment of a breach of warranty against hidden defect is
justified.
Article 929
If the testator, heir, or legatee owns only a part of, or an
interest in the thing bequeathed, the legacy or devise shall
be understood limited to such part or interest, unless the
testator expressly declares that he gives the thing in its
entirety.
Partly Owned Property
No one can give that which he does not have.
The GR that the legacy or devise is limited to that part of the
property owned by the person charged, applies whether or not
the testator knew at the time of the execution of the will that the
property subject matter of the legacy or devise is partly owned
by another person.
Exception to the Rule
If the testator, at the time of the execution of the will, knew that
he owns only a part of the thing bequeathed, or that the person
charged with the sub-legacy or sub-devise owns only a part
thereof, he may if he so wishes make an express declaration
that:
(1) He gives the thing to the legatee or devisee in its
entirety;
(2) He directs the person charged with the sub-legacy or
sub-devise to give the thing to the sub0legatee or sub-
devisee in its entirety.
In order to give the thing in its entirety, the testator must indicate
in the will that he is aware that another person has an interest in
the property and that notwithstanding, he gives the thing to the
legatee or devisee in its entirety.
Important here is the testator’s knowledge or awareness of a
third party interest in the thing. Without such indication of
knowledge, the giving of the whole thing to the legatee or

devisee may be construed as a mistake on that part of the
testator, a mistaken belief that he owned the thing in its entirety.
This may, under Art. 930, void the legacy or devise insofar as
the legacy or devise pertains to a 3rd party.
Implicit Order to Acquire
Testator is not required to give the person burdened with the
legacy or devise a specific instruction to acquire the interest of
the 3rd party in the property bequeathed.
It is sufficient that the testator is aware of the 3rd party interest
and, despite such knowledge, he gave the thing in its entirety to
the legatee or devisee.
Such knowledge gives rise to the implicit instruction from the
testator to acquire the interest of the 3rd party so that the
property could be delivered in its entirety to the legatee or
devisee.
In order to do this, the person burdened with the legacy or devise
must acquire (by purchase or otherwise) the third party interest.
This is subject to certain limitations:
1. If burden imposed on estate, price for acquisition of the
third party interest must not exceed the disposable free
portion.
2. If the burden is imposed on a CH, the price must not
exceed the value of that which he received form the
disposable free portion and his legitime shall at all
times be preserved.
3. If burden is imposed on a voluntary heir, legatee or
devisee, the price must not exceed the value of the gift
which he received from the testator.
If acquisition price should exceed these limits, the person
burdened with the legacy or devise cannot be compelled to
acquire the interest of the third party in the thing bequeathed. If
the beneficiary wishes to acquire the property in its entirety he
may demand such acquisition provided that he shall pay that
part of the consideration which exceeds the limits set by law.
Article 930
The legacy or devise of a thing belonging to another person
is void, if the testator erroneously believed that the thing
pertained to him. But if the thing bequeathed, though not
belonging to the testator wh9en he made the will,
afterwards becomes his, by whatever title, the disposition
shall take effect.
Effect of Mistaken Belief
P a g e | 107
Mistake is a vice of consent which makes a contract voidable.
Art. 1331 provides that a mistake invalidates consent if it refers
to the substance of the thing which is the object of the contract,
or to those conditions which have principally moved one or both
parties to enter into the contract. This can be applied by analogy
to Art. 930, i.e., that mistake vitiates the testator’s consent to the
testamentary disposition.
HOWEVER, in succession, a will or a testamentary disposition
is either valid or void. In art. 930, the testator’s mistaken belief
in his ownership of a thing bequeathed causes the nullity of the
legacy or devise.
Effect of Subsequent Acquisition of Title
This provision allows the validation of an otherwise void act.
While mistake in Art. 930 results in the nullity of the legacy or
devise, the testator’s subsequent acquisition of ownership of the
property by any title validates the disposition. The requisite
condition, however, is that at the time of the execution of the will,
the testator was unaware that the property did not belong to him.
Article 931
If the testator orders that a thing belonging to another be
acquired in order that it be given to a legatee or devisee, the
heir upon whom the obligation is imposed or the estate
must acquire it and give the same to the legatee or devisee;
but if the owner of the thing refuses to alienate the same, or
demands an excessive price therefor, the heir or the estate
shall only be obliged to give the just value of the thing.
Order to Acquire
Here, the testator bequeaths to a legatee or devisee a specific
property which, at the time of the execution of the will, he knew
did not belong to him.
The testator may in his will issue a specific instruction to the
executor or administrator (in case L or D is charged to the estate)
or to an heir, legatee or devisee (in case of sub-legacy or sub-
devise) to acquire such property.
In Art. 930, testator acted on mistaken belief. In Art. 931, testator
knew at all times that he did not own the property.
Express Order to Acquire
The testator’s instruction to acquire the property must be
express.
An uncertainty arises if the testator failed to give the explicit
directive to acquire the property.
 P a g e | 108

NOTE: Art. 930 is inapplicable because Art. 930 refers only to a devisee shall be ineffective, even though another person
case where the testator erroneously believed that the property may have some interest therein.
belonged to him when it belonged to another person.
If the testator expressly orders that the thing be freed from
Example: Testator’s disposition: “I bequeathed to my wife my such interest or encumbrance, the legacy or devise shall be
mother’s 2-carat diamond ring.” By acknowledging his mother’s valid to that extent.
ownership thereof, the testator knew he did not own it.
Nevertheless, his intention is clear. Thus, an effort must be Sebastian Lecture:
exerted to make his wish come true. This is done by interpreting VOID—nangyari na ang gusto ng testator, what is there to be
such disposition to implicitly include an order or instruction to done? Fait accompli
acquire the ring.
Article 933
Sebastian Lecture:
If the thing bequeathed belonged to the legatee or devisee
Explicit instruction is not required as long as it can be deduced at the time of the execution of the will, the legacy or devise
that the order of the testator is to acquire the property. shall be without effect, even though it may have
subsequently alienated by him.
Party Charged with Obligation to Acquire
If the legatee or devisee acquires it gratuitously after such
The obligation to acquire the property is addressed either to:
time, he can claim nothing by virtue of the legacy or devise;
1. the executor or administrator in case the legacy or but if it has been acquired by onerous title he can demand
devise is a burden imposed on the estate; or reimbursement from the heir or the estate.
2. an heir, legacy or devisee in case of sub-legacies and
Things owned by Legatee or Devisee
sub-devises.
These articles refer to things bequeathed to legatees or
Limitations on Obligations to Acquire
devisees which, at the time of execution of the will, already
While not explicitly stated in Art. 931, the executor or belonged to them. These provisions are premised upon the
administrator charged with the acquisition of the property cannot testator’s ignorance of the fact that at the time of the making of
spend an amount in excess of the disposable free portion. the will, the thing he bequeathed to the legatee or devisee
already belonged to the latter. Testator’s ignorance of the facts
Legitime of CHs must also be preserved.
results in his mistake, vitiating his consent and thus nullifying the
CH charged with the obligation to acquire property cannot be legacy or devise. Reckoning date is the date of the execution of
compelled to spend an amount in excess of what he may have the will.
received from the disposable free portion.
Acquisition of beneficiary Subsequent to Execution of Will
A voluntary heir charged with the acquisition cannot be
At time of execution of will, Void under 930; subsequent
compelled to spend an amount in excess of the value of the gift the thing belonged to a third acquisition will not validate
he received from the testator pursuant to the will. person and testator the disposition
If owner of the thing refuses to sell the property, the person erroneously believed that he
owned the thing
obliged to acquire may discharge such obligation by tendering
At time of execution of will, If acquired by onerous title,
to the legatee or devisee an amount equal to the fair value of
the thing belonged to a third Art. 933
the thing bequeathed. If the legatee or devise and person person and testator If acquired by gratuitous title,
charged with acquisition of the thing cannot amicably agree on expressly ordered its legacy or devise is deemed
the fair value, they may refer the matter to a licensed acquisition satisfied without entitling the
independent professional property appraiser for determination. legatee or devisee to any
recovery from the estate or
Article 932
from the heir, legatee or
The legacy or devise of a thing which at the time of the devisee burdened by such
execution of the will already belonged to the legatee or legacy or devise.
 P a g e | 109

At time of execution of will, Legacy or devise considered which was secured by the testator as a third party pledger or
the thing belonged to testator revoked under Art. 957 (2). mortgagor or as an accommodation pledger or mortgagor.
and testator later sold the
thing to legatee or devisee A recoverable debt is an obligation which is demandable i.e. an
At time of execution of will, Legacy or devise considered obligation whose performance can be enforced by an action for
the thing belonged to testator satisfied. specific performance. Thus, executor or administrator need not
and testator later gratuitously pay a prescribed debt which is secured by a pledge or mortgage
conveyed the thing to on the property bequeathed because payment of such cannot
legatee or devisee be enforced against the debtor by an action for specific
At time of execution of will, Legacy or devise is revoked performance.
the thing belonged to testator under Art. 957 (2)
and testator later sold the NOTE: See Chua v. CFI re: demandable v. prescribed debt.
thing to a third person
If the encumbrance on the property bequeathed was constituted
for some purpose other than to secure a recoverable debt the
Instruction to Acquire Third Party Interest or to Discharge executor or administrator need not make any payment.
Encumbrance
Article 935
If at the time of the execution of the will, the thing bequeathed
The legacy of a credit against a third person or of the
belonged to the legatee or devisee, but the property is subject
remission or release of a debt of the legatee shall be
to an interest of a third party or to an encumbrance, the legacy
effective only as regards that part of the credit or debt
or devise is valid to the extent of the testator’s instruction to free
existing at the time of the death of the testator.
the property from such interest or encumberance.
In the first case, the estate shall comply with the legacy by
Article 934
assigning to the legatee all rights of action it may have
If the testator should bequeath or devise something against the debtor. In the second case, by giving the legatee
pledged or mortgaged to secure a recoverable debt before an acquittance, should he request one.
the execution of the will, the estate is obliged to pay the
In both cases, the legacy shall comprise all interests on the
debt, unless the contrary intention appears.
credit or debt which may be due the testator at the time of
The same rule applies when the thing is pledged or his death.
mortgaged after the execution of the will.
Article 936
Any other charge, perpetual or temporary, with which the
The legacy referred to in the preceding article shall lapse if
thing bequeathed is burdened, passes with it to the legatee
the testator, after having made it, should bring an action
or devisee.
against the debtor for the payment of his debt, even if such
Sebastian Lecture: payment should not have been effected at the time of his
death.
Ridiculous provision
The legacy to the debtor of the thing pledged by him is
Release of Pledge or Mortgage understood to discharge only the right of pledge.
GR: Executor or administrator must pay the underlying debt. General Rule on Legacies of Credit and Remission
Exception: When testator provides otherwise. A legacy of credit or remission is a gift of intangible property.
Payment of the debt results in the discharge of the encumbrance The first paragraph of Art. 935 refers to legacies of credit and
and the avoidance of foreclosure, which in turn ensures that the remission. Both legacies have for their objects
legatee or devisee shall receve the property given by the claims/receivables that the testator has against one or several
testator as gift. debtors. A receivable is an asset, an intangible property.

The underlying obligation secured by the pledge or mortgage Legacy of credit – testator gives to a legatee a claim or
must be a debt recoverable by a creditor from a third person receivable that the testator has against a third party debtor.

Legacy of remission – testator condones a receivable which he
has against the debtor who is a legatee.
GR: Legacies of credit and remission pertain only to that part of
the credit or that portion of a debt that is existing at the time of
the death of the testator.
A legacy of credit may include future receivables. Cf. Art. 793
However, in a generic legacy of remission (art. 937), this
comprises only those debts which are in existence at the time of
the execution of the will, but not subsequent ones.
Legacy of Credit
A credit may be the object of a legacy provided that the same
arose from a lawful transaction.
Two kinds: generic or specific.
Generic: all receivables owed by any and all debtors to the
testator arising from any and all lawful transactions. It may be
all-inclusive or it may be defined by certain parameters.
Example: I give to X all outstanding receivables which may be
due me from any person or entity, arising out of any and all
lawful transactions that I may have entered into during my
lifetime, including such transactions consummated prior to the
date of this will and hereafter.
Example 2: I give to X all outstanding receivables which may be
due me from any person or entity, arising out of my trading
transactions in grains during my lifetime, including such
transactions consummated prior to the date of this will and
hereafter.
It is limited to those receivables arising from a specified
business activity.
Specific: Includes only receivables specifically identified by the
testator in his will. These are not necessarily limited to those that
exist at the time of the making of the will but may include credits
accruing to the testator subsequent to the execution of the will
provided such intention appears.
Example: I give to X as a legacy the principal, interest, penalties
if any, and all other monetary entitlements due me from Y under
a promissory note dated as of 15 June 2012.
How Effected
It shall be delivered to the legatee by way of a deed of
assignment to be executed by teh executor in favor of the
P a g e | 110
legatee. This generally does not need the conformity of the
relevant obligor. (Art. 1178)
Upon execution of teh deed of assignment, the legatee shall
have the right to personally collect the receivable, to enforce the
creditor’s rights therein, to rbing an action for specific
performance in case of debtor’s default, or to be substituted as
plaintiff if a collection case has been filed by the executor or
administrator.
Legacy of Credit does not Result in Novation
The legacy of credit does not result in a novation of teh
underlying transaction that gave rise to it. The legacy does not
extinguish the underlying transaction; neither does it create a
new one in lieu thereof.
Legacy of credit does not novate the credit itself. It is the same
credit that is passed by the testator to the legatee. IN novation,
an original credit is extinguished by teh creation of a new one. If
original credit was novated by the legacy, then there would be
no credit that will pass to the legatee.
Compliance of the legacy of credit through the execution of a
deed of assignment negates novation since all that the testator
transfers to the legatee is his right of action against the debtor.
The collection of the credit by the executor or administrator
negated the idea of novation, for if it did result in novation,
executor or administrator has nothing to collect.
It also does not result in novation of the underlying transaction
through subrogation. The legacy of credit becomes effective
only upon teh death of the testator, at which time teh testator
would not have the power or authority to substitute the legatee
in his place by way of subrogation.
Accessories to the Credit
Even without the testator’s express directive, the legacy of credit
includes all of the accessory obligations of the debtor such as
interest and accrued penalties and all security arrangements.
The inclusion of all these is in accordance with the law of
accession: the accessory follows the principal.
Extinguishment of Legacy of Credit
Legacy of credit is extinguished if at any time during the
testator’s lifetime he should bring an action against the debtor
for the payment of the debt, even if payment was not obtained
or otherwise obtained only after the death. By bringing an action
 P a g e | 111

to collect the debt, it is presumed that the testator changed his
mind. Instead of giving the credit to teh legatee, he wants to
collect the proceeds thereof for himself.
Article 937
A generic legacy of release or remission of debts
comprises those existing at the time of the execution of the
will, but not subsequent ones.
Legacy of Remission
Remission refers to the condonation of a debt. It extinguishes a
debt arising out a lawful transaction owed by a debtor to the
testator. The legatee in a legacy of remission is the debtor
whose debt is condoned by the testator.
However, legatee is entitled to a written deed of acquittance
from the executor or administrator, if the legatee should so
demand. It is his proof of his release from liability.
Other documents that can prove:
(1) a certified copy of the will together with a certified copy
of the order admitting the same to probate and a
certificate of finality of such order
(2) Certified copy of the project of partition together with a
certified copy of the order approving the same
(3) The document evidencing the condone debt duly
stamped “condoned”
(4) The document evidencing the condoned debt which is
in the possession of the debtor-legatee. (Art. 1272)

Distinguished from Legacy of Credit Release of Security

Legacy of Credit Legacy of Remission This legacy automatically releases all mortgages, pledges,
Testator technically gives guaranties and all other security arrangements given by the
Testator gives the his credit to the debtor debtor to the testator to secure the prompt and full repayment of
receivable to a person other thereby resulting in the the debt.
than the debtor extinguishment of the
debtor’s obligation. However, this does not automatically carry with it the
Testator’s intention is to condonation of the secured obligation. The accessory follows
assign and transfer to the Testator’s intention is to the principal, not the other way around.
legatee the enforcement of extinguish the claim against
Extinguishment of Legacy of Remission
the testator’s claim against the debtor
the debtor It is extinguished if the testator, subsequent to the execution of
the will, should bring an action agsint the legatee for the
Scope of Remission payment of the debt, even if this is not obtained during the
testator’s lifetime.
It may be generic or specific.
Same is true should the testator revoke the will which contains
Generic : includes all debts owed by the debtor to the testator at the legacy of remission.
the time of the execution of the will which remain outstanding as
at the time of the death of the latter. It cannot comprise future Article 938
debts. A legacy or devise made to a creditor shall not be applied
Specific: includes only such debts or portions thereof that are to his credit, unless the testator so expressly declares.
owing by the debtor to the testator at the time of the execution In the latter case, the creditor shall have the right to collect
of the will, outstanding as at the time of death of the testator, the excess, if any, of the credit or of the legacy or devise.
and identified by the testator in the will.
Creditor as Legatee or Devisee
How Effected
A testator may give a legacy or devise to a person to whom he
It is embodied in the will of the testator. When admitted to is indebted. A creditor is not disqualified to inherit from the
probate, the will is the best evidence of condonation. No testator solely because he has a claim against the latter. The
additional formality is required in order to give effect to the testamentary disposition will only create a new relationship
legacy of remission. between them.
 P a g e | 112

By giving a legacy or devise to a creditor, the testator is deemed debt. Payment of a claim against the estate must be proved by
to have intended to give an economic benefit to the creditor, in competent evidence.
addition to the recovery of the creditor’s claim.
3. Issue of characterization
Application to the Claim
A legacy or devise shall be paid and delivered provided:
Testator may qualify a legacy or devise given to the creditor. He
1. The will is valid and thus admitted to probate;
may provide that the gift be applied in whole or in part to the
2. Amount thereof does not impair the legitime of CH
payment of his obligation to the legatee or devisee.
3. Legatee or devisee is not DQ to inherit from the testator;
Legal Issues 4. The funeral expenses and expenses of administration
have been paid;
1. Relevance of dacion
5. The tax on the net estate and debts owed by testator
Unless the legacy that will be applied in whole or in part to the have been paid in full.
payment of a monetary claim of the legatee against the testator
A creditor’s claim, on the other hand, must be proved by the
is a cash gift, teh legacy may be viewed as an offer of the
claimant to the satisfaction of the probate court. But the
testator to settle the legatee’s claim by way of dacion en pago.
claim, if proved, will be paid ahead of the legitime and of all
(Art. 1245) Here, acceptance of the creditor is necessary.
testamentary dispositions.
Under the principle of identity of payment (Art. 1244), the debtor
Atty Sebastian:
cannot compel the creditor to accept any property other than
money in the settlement of the creditor’s monetary claim against To the extent that the legacy is equal to the legatee’s claim,
the debtor. Thus, if legatee should reject the application of the consider the testamentary disposition as an instruction of
property given as a legacy to his monetary claim against the the testator to pay a debt.
testator, dacion cannot take place.
To the extent of the excess of the legacy over the legatee’s
Example: Testator in his will gave the creditor by way of legacy claim, consider the excess as pure legacy.
a car valued at P1M, which shall be applied to the testator’s debt
Such excess will be reduced or abated if it impairs the
of P800k to the creditor.
legitime; it shall be abated if the estate is insolvent.
If the creditor accepts the legacy, his claim against the estate is
Article 939
extinguished. He would have received a net gift of P200k from
the testator. If the testator orders the payment of what he believes he
owes but does not in fact owe, the disposition shall be
If creditor rejects the legacy, he is entitled to recover P800k form
considered as not written. If as regards a specified debt
estate of the testator but he cannot demand that he be given
more than the amount thereof is ordered paid, the excess
P200k difference between his credit and the value of the car.
is not due, unless a contrary intention appears.
2. Proof of the legatee’s claim
The foregoing provisions are without prejudice to the
A creditor who has a claim against the estate is required by the fulfillment of natural obligations.
ROC to file within a definite period of time a formal claim against
Erroneous Order of Payment
the estate.
A testator may believe that he owed a debt for which reason he
As a prerequisite to payment, ROC further require the creditor
ordered the payment thereof in his will. The debt, however, must
to prove or otherwise substantiate his claim at the appropriate
exist as a fact. Testator’s acknowledgement is not conclusive. If
time.
the testator ordered the payment of a debt which is not owed,
Atty. Sebastian believes that the testator’s acknowledgement of the law considers the payment instruction void and it is deemed
his indebtedness to the legatee-creditor will not relieve the latter not written.
from the obligation to prove his claim before the court. This
The erroneous payment instruction cannot be considered a
recognition is not conclusive evidence of the existence of the
legacy to the person the testator thought was a creditor. The

intent of the testator to pay the debt which he thought owed a
creditor is totally incompatible with donative intent.
Excessive Payment
The excessive payment may hav been due to two possible
causes:
1. Error on the part of the testator, or
2. The testator’s sincere desire to give the creditor the
excess over the correct amount owed.
In the first instance, the excess over the amount due is void and
should not be given to the creditor.
In the second case, this is an exception to the general rule. If it
is evident from the tenor of the testamentary disposition that the
testator intended to pay a creditor an amount in excess of what
is owed, the excess over the amount owed is a legacy of the
testator to the creditor.
In this case, payment must be made in two parts.
1. The amount actually owing by the testator to the
legatee: paid after the payment of the estate tax but
before the distribution of the hereditary estate
2. Amount in excess: paid to the legatee only after the
payment of the obligations of the estate, the estate tax,
the expenses of administration, the allowance of the
widow or widower, and the legitime.
Instruction to Pay is Unnecessary
Testator need not give explicit instruction in his will for his debts
to be paid. Even without such directive, it must and should be
paid.
The creditor may, however, use the testator’s instruction as
prima facie evidence of the existence of the debt.
Natural Obligations
The performance of a natural obligation is based on equity and
natural law, for which reason its fulfillment cannot be enforced
through an action for specific performance.
In art. 939, the saving clause provides that if the testator orders
the payment of an obligation and that it was accordingly paid,
the fact that the obligation has in fact prescribed will not permit
recovery of payment from the creditor. If a prescribed debt is
voluntarily paid, the obligor cannot recover what he has paid.
(Art. 1424)
P a g e | 113
Atty. Sebastian: If the testator orders the payment of a debt, the
judicial scrutiny should be limited to the existence of the debt
and the amount thereof. The inquiry should not delved into the
enforceability of the creditor’s claim which, in in light of the
specific payment instruction of the testator, should be deemed
waived.
It is appropriate to assume that the testator issued the payment
order because of his desire to make good all his outstanding
obligations, if not during his lifetime, then in the settlement of his
estate upon his demise.
The testator can order payment of natural debt.
Article 940
In alternative legacies or devises, the choice is presumed
to be left to the heir upon whom the obligation to give the
legacy or devise may be imposed, or the executor or
administrator of the estate if no particular heir is so obliged.
If the heir, legatee or devisee, who may have been given the
choice, dies before making it, this right shall pass to the
respective heirs.
Once made, the choice is irrevocable.
In the alternative legacies or devises, except as herein
provided, the provisions of this Code regulating obligations
of the same kind shall be observed, save such
modifications as may appear from the intention expressed
by the testator.
Alternative Legacies and Devises
In alternative legacies and devises, a testator gives to a legatee
or devisee two or more things in the alternative. Testator’s
intention is not to give all or both things.
Example: I bequeath to A my Mercedes Benz bearing plate
number CBA 707 or alternatively P1M.
The rules on alternative obligations (cf Art. 1199, 1200, 1202,
1204) are applicable to alternative legacies and devises.
1. The right of choice is presumably given to the heir
charged with the legacy or devise. If no such person is
burdened, the choice shall be made by the executor or
administrator of the estate. The testator may direct that
the right of choice be given to the legatee or devisee.
2. The legatee or devisee cannot be compelled to receive
part of one thing and part of the other thing. Neither

may he demand the delivery of part of one thing and
part of the other thing.
3. The person burdened with the legacy or devise, or the
executor or administrator of the estate, as the case
may be, cannot choose that thing which is impossible
or which could not have been the object of legacy or
devise.
4. The person burdened with the legacy or devise, or the
executor or administrator of the estate, as the case
may be, loses the right of choice when among the
things which he is alternatively bound to deliver to the
legatee or deivsee only one is practicable.
5. The legatee or devisee shall have a right to indemnity
for damages when through the fault of the person
burdened with the legacy or devise or the executor or
administrator of the estate, as the case may be, all the
things which are alternatively the object of the legacy
or devise should be lost, or when the compliance with
the legacy or devise is impossible.
6. If the testator confers upon the legatee or devisee the
right of choice, the responsibility of the person
burdened with the legacy or devise, or the executor or
administrator of the estate, as the case may be, shall
be governed by the ff rules:
a. If lost through force majeure, person
burdened with the legacy or devise shall
deliver to the legatee or devisee that which
the former shall choose from among the
remaining things, or that which remains if
there is only one that subsists.
b. If the loss of one thing occurs through the fault
of the person burdened with the legacy or
devise, the legatee or devisee may claim any
of those subsisting, or the price of that which,
through the fault of the former was lost, with a
right to damages.
c. If all the things are lost through the fault of the
person burdened with the legacy or devise,
the choice of the legatee or devisee shall fall
upon the price of any one of htem, likewise
with right to damages.
Exercise of Right of Choice
The right of choice can be exercised only after the death of the
testator when succession opens. Prior to the testator’s death,
there is no legacy or devise that can be accepted.
P a g e | 114
If testator gave the right of choice to teh legatee or devisee and
the latter dies without having exercised it, the right of choice
shall pass to the heirs of the legatee or devisee.
Irrevocability of Choice
Once a choice has been made and duly communicated, the
choice is, as a general rule, irrevocable.
However, nothing prevents the person who made the choice
from repudiating the same if it is proved that the exercise of the
right of choice was vitiated.
Article 941
A legacy of generic personal property shall be valid even
if there be no things of the same kind in the estate.
A devise of indeterminate real property shall be valid only
if there be immovable property of its kind in the estate.
The right of choice shall belong to the executor or
administrator who shall comply with the legacy by the
delivery of a thing which is neither of inferior nor of superior
quality.
Article 942
Whenever the testator expressly leaves the right of choice
to the heir, or to the legatee or devisee, the former may give
or the latter may choose whichever he may prefer.
Article 943
If the heir, legatee or devisee cannot make the choice, in
case it has been granted him, his right shall pass to his
heirs; but a choice once made shall be irrevocable.
Generic Legacies and Devises
Generic thing: one that is identified by its genus or species (eg
horse, parcel of land)
Specific thing: one that is identified not only by its specifies but
by its specifications. (eg my blind female horse)
Art. 941 makes a distinction between a generic legacy and a
generic devise.
Generic Legacy Generic Devise
Valid even if there be no Valid only if there be
things of the same kind immovable property of
in the estate its kind in the estate.

The thing can be Cannot be substituted.
substituted by others of
the same kind or genus
Note: Should not create
uncertainty
A legacy of a Siamese cat is valid even if at the time of the
testator’s death there is no Siamese cat among the assets of the
estate.
A devise of a residential condo unit is not valid is there is no
such thing among the assets of the estate.
Article 944
A legacy for education lasts until the legatee is of age, or
beyond the age of majority in order that the legatee may
finish some professional, vocational or general course,
provided he pursues his course diligently.
A legacy for support lasts during the lifetime of the legatee,
if the testator has not otherwise provided.
If the testator has not fixed the amount of such legacies, it
shall be fixed in accordance with the social standing and
the circumstances of the legatee and the value of the estate.
If the testator or during his lifetime used to give the legatee
a certain sum of money or other things by way of support,
the same amount shall be deemed bequeathed, unless it be
markedly disproportionate to the value of the estate.
Legacy for Education
Unless testator imposed a time limit, legacy for education lasts
until the legatee finishes a profession, vocational or general
course. It will not expire when the legatee reaches the age of
majority.
As a condition, however, the legatee msust pursue his studies
diligently. If breached, the heirs may petition the court for
termination of the legacy.
Testator may specify the amount of legacy for education. If so,
legacy should not exceed the amount. Nor can it exceed the
disposable free portion.
This is personal to the legatee. It cannot be transferred to the
legatee’s own heirs or any other perons unless the testator so
provides.
Legacy for Support
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Support includes everything that is indispensable for
sustenance, dwelling, clothing, medical attention, education and
transportation. When a testator fgives a legacy for support, as a
rule, it is in recognition of the needs of the legatee.
This is not subject to a time limit unless declared by the testator.
It is, however, limited by the disposable free portion. It should
also not impair the legitime of the CH.
Termination of Support
FC is silent on the grounds for the termination of support.
Pineda opined that the grounds for extinguishment of the
obligation to provide support found in Art. 303 of the civil Code
are still effective, namely:
(1) Upon the death of the recipient;
(2) When the resources of the obligor have been reduced to the
point where he cannot give the support without neglecting his
own needs and those of his family;
(3) When the recipient may engage in a trade, profession, or
industry, or has obtained work, or has improved his fortune in
such a way that he no longer needs the allowance for his
subsistence;
(4) When the recipient, be he a forced heir or not, has committed
some act which gives rise to disinheritance;
(5) When the recipient is a descendant, brother or sister of the
obligor and the need for support is caused by his or her bad
conduct or by the lack of application to work, so long as this
cause subsists.
These may be invoked for the purpose of terminating a legacy
for support.
Article 945
If a periodical pension, or a certain annual, monthly, or
weekly amount is bequeathed, the legatee may petition the
court for the first installment upon the death of the testator,
and for the following ones which shall be due at the
beginning of each period; such payment shall not be
returned, even though the legatee should die before the
expiration of the period which has commenced.
Legacy of Pension
Periodic allowance granted by teh testator to a legatee is
demandable from the time of the testator’s death.

As provided by the ROC, there shall be no distribution of the
estate until the funeral expenses, outstanding debts of the
deceased and the expenses of administration have been paid
and the estate tax has been remitted to the taxing authorities.
Only then can a probate court issue an order for the distribution
of the estate of the deceased.
The delivery of thes allowance must await the payment of the
debts of the testator and the taxes due to the government. The
deferral of payment of the periodic allowance is withouth
prejudice to the right of the legatee to recover from the estate
the allowance in arrears.
Article 946
If the thing bequeathed should be subject to a usufruct, the
legatee or devisee shall respect such right until it is legally
extinguished.
Usufruct not to be Discharged
If the property bequeathed by the testator is burdened by a
usufruct, the executor or administrator of the estate is not
obliged to discharge the burden. The legatee or devisee shall
respect the usufruct until it is legally extinguished.
Sebastian Lecture:
Not related to the pension in SSS.
Article 947
The legatee or devisee acquires a right to the pure and
simple legacies or devises from the death of the testator,
and transmits it to his heirs.
Right to Pure and Simple Legacies and Devises
The legatees and devises acquire the right to pure and simple
legacies and devises from the moment of the death of the
testator. (cf. Art.777)
This article does not apply to legacies and devises that are
subject to a suspensive condition or suspensive term. In these
cases, the acquisition of the right to the legacy or devise occurs
only upon the fulfillment of the condition or the arrival of the term.
Sebastian Lecture:
This does not mean that you are entitled to delivery.
Transferability of the Right to Pure and Simple Legacies
and Devises
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A legatee or devise who died prior to the physical delivery of the
gift transfers the right thereto to his own heirs. This presumes
that the legatee or devise survived the testator.
Summary of Rules
1. For pure and simple legacies, the acquisition of the
rights thereto accrues from the moment of death of the
testator. Physical delivery may be deferred by the
proceedings for the settlement of the estate.
2. For legacies and devises of specific movable and
immovable property, the acquisition of the rights
thereto accrues from the moment of the death of the
testator. Similarly, physical delivery may be deferred by
the proceedings for the settlement of the estate.
3. For legacies and devises of generic movable or
immovable property respectively, the acquisition of the
rights thereto accrues from the time the person to
whom the right of selection was given by the testator
exercised the right to select.
4. For alternative legacies and devises, the rights thereto
accrue from the moment the person, to whom the right
of choice was given by the testator, exercises the right
of choice.
5. For legacies and devises whose objects are, with the
knowledge of the testator, owned by a third person, the
acquisition of the rights thereto accrues from the time
the person burdened with such legacies or devises
acquires the relevant objects from the third party owner.
6. For legacies and devises subject to a suspensive
condition or term,the rights thereto accrue from the
time the condition is fulfilled or the arrival of the term.
Article 948
If the legacy or devise is of a specific and determinate thing
pertaining to the testator, the legatee or devisee acquires
the ownership thereof upon the death of the testator, as
well as any growing fruits, or unborn offspring of animals,
or uncollected income; but not the income which was due
and unpaid before the latter's death.
From the moment of the testator's death, the thing
bequeathed shall be at the risk of the legatee or devisee,
who shall, therefore, bear its loss or deterioration, and shall
be benefited by its increase or improvement, without
prejudice to the responsibility of the executor or
administrator.
Right to Fruits of Specific and Determinate Things

The right is premised on two conditions: (1) the object is specific
and determinate, and (2) the object belongs to the testator.
If fulfilled, legatee or devisee upon the death of the testator
acquires, in addition to the objet itself, the right ot he growing
fruits, the unborn offspring of animals and the uncollected
income.
With respect to the uncollected income, the same shall pertain
to the legatee or devisee only if it accrued after the death of the
testator.
Income that became due but remained unpaid at the time of the
testator’s death is excluded from the legacy or devise and
constitutes a receivable which forms part of the estate of the
testator.
Risk of Loss and Benefit of Improvement
The loss of the thing is the risk of the owner: res perit domino.
If the legatees and devisees acquire ownership of the things
bequeathed to them by the testator, the risk of loss of the things
is for the account of the respective legatees and devisees.
If prior to the delivery of an object of the legacy or devise, the
thing is lost or it otherwise deteriorates due to the fault or
negligence of the person charged with the obligation to deliver
it, the person is personally liable to the legatee or devisee for
such loss or deterioration.
Article 949
If the bequest should not be of a specific and determinate
thing, but is generic or of quantity, its fruits and interests
from the time of the death of the testator shall pertain to the
legatee or devisee if the testator has expressly so ordered.
Right to Fruits and Interests of Generic Things
Right accrues only after the person burdened with such legacy
or devise has made the selection and has identified the specific
thing that would be delivered to the legatee or devisee. However,
the fruits and interest accruing to the object of the legacy or
deivse after the death of the testator must be paid to the legatee
or devisee if the testator expressly so ordered.
This is without prejudice to the application of the assets forming
part of the estate to the payment of the debts of the testator.
Article 950
P a g e | 117
If the estate should not be sufficient to cover all the legacies
or devises, their payment shall be made in the following
order:
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the testator to be
preferential;
(3) Legacies for support;
(4) Legacies for education;
(5) Legacies or devises of a specific, determinate thing
which forms a part of the estate;
(6) All others pro rata.
No Compulsory Heirs
Relevant only if the inheritance is insufficient to discharge all the
gifts given by the testator in his will.
Requisites:
1. In his will the testator gave various legacies and
devises
2. Estate does not have sufficient assets to pay all these
legacies and devises, after payment of the claims
against the estate, if any, the estate tax, and expenses
of administration.
3. Testator has no CH.
If there are CHs, the order of preference is governed by Art. 911.
Order of Preference
1. Remuneratory legacies and devises
A remunatory gift is one given by the testator to the recipient in
recompense for past meritous services which do not give rise to
a demandable debt. To reward the recipient.
2. Preferential legacies and devises
It is sufficient that the testator declares it to be preferential.
3. Legacies for support
Given the nature of support, it is readily discernible why the law
gives the payment of such legacies and devises priority over
some others. Note: transportation is not included in support
under old civil code. In FC it is.
4. Legacies for education
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Preferential treatment of these gifts is based on the similarity of Discharge of Legacies and Devises
its purpose to that of a legacy for support.
GR: The heir, legatee or devisee burdened with a legacy or
5. Legacies and devises of specific things devise, or the executor or administrator of the estate, as
appropriate, shall comply with the testamentary disposition by
By giving a specific thing, the testator makes manifest his delivering to the legatee or the devisee that thing which the
intention to give that specific thing particularly and exclusively to
testator identified in the will.
the legatee or devisee so that the latter may enjoy the fruits and
benefits thereof to the exclusion of all others. The executor of the person burdened with the legacy or devise
does not have the right to substitute money or another property
Payment of Legacies and Devises
for the legacy or devise given by the testator
If assets are enough to pay the remunatory gifts, then whatever
Exception to the Rule
is available is divided pro rata.
Art. 952 does not prohibit an agreement between the concerned
Some of the legatees and devises, particularly in the lower
parties on the matter of fulfilling the legacy or devise in another
priorities, may not be able to get the gifts in full or may not get
manner.
anything at all.
Example: A legatee who is entitled to receive P1M from the
Article 951
executor may agree to accept a specific car in lieu of money.
The thing bequeathed shall be delivered with all its An agreement between the executor and the legatee or devisee
accessions and accessories and in the condition in which
which changes the manner of discharging the legacy or devise:
it may be upon the death of the testator.
1. May be objected to by any heir of the testator on the
Right of Accession
ground of an adverse or prejudicial effect on his right
Art. 951 used accessories and accessions in the broadest sense. as an heir.
They do not refer only to the thing produced by or incorporated 2. Is subject to the approval of the probate court.
or attached to the principal object but also include any
All that the person burdened has to prove to the probate court is
subordinate or supplemental part or object used for convenience,
that he has discharged the legacy or devise. His agreement with
adornment or safety.
the legatee or devisee, particularly if reduced into writing, is
The obligation of the person burdened with a legacy or devise competent evidence of his compliance with the obligation
to deliver the accessions and accessories is conditioned upon imposed by the testator.
the existence of such accessions and accessories at the time of
Delivery Expenses
the death of the testator. If, during the lifetime of the testator,
they were lost, destroyed or otherwise removed from the Must be reasonable.
principal object, the person burdened need not re-install them
These are for the account of the person burdened with said
for delivery to the legatee or devisee.
legacy or devise, OR
Article 952
For the account of the estate in respect of the legacies and
The heir, charged with a legacy or devise, or the executor devises whose objects are assets forming part of the estate.
or administrator of the estate, must deliver the very thing
Article 953
bequeathed if he is able to do so and cannot discharge this
obligation by paying its value. The legatee or devisee cannot take possession of the thing
bequeathed upon his own authority, but shall request its
Legacies of money must be paid in cash, even though the
delivery and possession of the heir charged with the legacy
heir or the estate may not have any.
or devise, or of the executor or administrator of the estate
The expenses necessary for the delivery of the thing should he be authorized by the court to deliver it.
bequeathed shall be for the account of the heir or the estate,
Necessity of Orderly Delivery
but without prejudice to the legitime.

After the payment of obligations, the executor or administrator
shall prepare a project of partition which shall be submitted to
the probate court for approval. Only after the same is approved
may an heir demand delivery of his or her share.
Accordingly, a legatee or devisee cannot take possession of the
thing bequeathed upon his own authority. He shall make a
request for its delivery to the person burdened with the legacy
or devise.
Article 954
The legatee or devisee cannot accept a part of the legacy or
devise and repudiate the other, if the latter be onerous.
Should he die before having accepted the legacy or devise,
leaving several heirs, some of the latter may accept and the
others may repudiate the share respectively belonging to
them in the legacy or devise.
Partly Onerous Unitary Bequests
The legacy or devise in this article has a unitary object. The first
paragraph invokes the indivisibility of a unitary bequest where a
part is gratuitous and another part is onerous. This is based on
a legal presumption that the testator would not have given the
gratuitous part of the gift separately or independently from the
onerous part. Since it is indivisible, the legatee or devisee must
either accept or reject the legacy or devise in its entirety. (cf Art.
955)
Right of the Heirs to Accept the Legacy or Devise
The second paragraph of Art. 954 contemplates a situation
where the legatee or devisee of a partly gratuitous and partly
onerous unitary gift dies without having accepted or rejected the
same. The acceptance or rejection of the legacy or devise is
exercisable by the heirs in their individual capacities subject to
the limit of their respective rights thereto as heirs of the legatee
or devisee.
Acceptance or repudiation of an inheritance is covered by Title
IV, Chapter 4 of Book III of the Civil Code. Cf. Art. 1053-1054
When the heirs of the legatee or devisee individually exercise
the right conferred upon them by art. 954, it is important to
remember that none of them may accept the gratuitous part of
the legacy or devise and repudiate the other part which is
onerous.
If some of the heirs of the legatee or devisee accept and others
repudiate their respective shares of the legacy or devise, the
portion that would have otherwise pertained to the repudiating
P a g e | 119
heirs shall generally pertain by right of accretion to those who
accepted it, except if accretion is not available, in which case
the repudiated portion shall revert to the estate of the testator.
The portions that revert to the estate shall pertain to the heirs of
the testator which would result in a co-ownership among the
heirs of the legatee or devisee on one hand, and the heirs of the
testator on the other.
Article 955
The legatee or devisee of two legacies or devises, one of
which is onerous, cannot renounce the onerous one and
accept the other. If both are onerous or gratuitous, he shall
be free to accept or renounce both, or to renounce either.
But if the testator intended that the two legacies or devises
should be inseparable from each other, the legatee or
devisee must either accept or renounce both.
Any compulsory heir who is at the same time a legatee or
devisee may waive the inheritance and accept the legacy or
devise, or renounce the latter and accept the former, or
waive or accept both.
Multiple Legacies and Devises
Involved two or more legacies or devises given by the testator
to a legatee or devisee.
This is different from the previous article in that in this article
there are two or more legacies or devises given to a single
person while there is only one legacy or devise in art. 954.
The rules in this article are:
1. If one of the objects of the legacy or devise is onerous
and the other gratuitous, the legatee or devisee cannot
renounce the onerous one and accept the gratuitous.
2. If both are gratuitous or onerous, the legatee or
devisee is permitted to accept one and to the reject the
other, except that if the testator intended the legacies
or devises to be inseparable from each other, the
legatee or devisee must either accept both or reject
both.
In the second paragraph of the same article, the law
contemplates a CH who, in addition to his entitlement as such,
is also the beneficiary of a bequest.
He inherits in two capacities: as a CH with respect to the legitime
and as a VH with respect to the bequest.
In this case, CH has several options:
 P a g e | 120

1. Accept both the legitime and bequest
2. Repudiate both legitime and bequest
3. Accept the legitime and repudiate the bequest
4. Repudiate legitime and accept the bequest.
Illustration
Tony, testator, was survived by 3 CH: Peter and Harley,
legitimate children, and Pepper, surviving spouse.
In Tony’s will, the only disposition is a legacy in favor of Peter
for P22,500.
At the time of Tony’s death, his net estate is P90k.
1. Divide the estate if all accepted the inheritance.
If the legatee or devisee cannot or is unwilling to accept the
legacy or devise, or if the legacy or devise for any reason
should become ineffective, it shall be merged into the mass
of the estate, except in cases of substitution and of the right
of accretion.
Ineffective Legacies and Devises
A legacy or devise becomes ineffective for a number of reasons:
1. Legatee or devisee predeceased the testator.
2. Legatee or devisee was declared incapacitated to
inherit from the testator;
3. The legatee or devisee repudiated the bequest;
4. For any of the causes specified in Art. 857

Heir Legitime Legacy Total In the first three instances, the ineffectivity of the legacy or
Peter 22,500 22,500 45,000 devise may be cured by two statutory remedies: (1) testator’s
Harley 22,500 22,500 appointment of a substitute; and (2) right of accretion. If neither
Pepper 22,500 22,500 is applicable, the object of the legacy or devise shall revert to
Total 67,500 22,500 90,000 the mass of the estate of the testator and shall be distributed to
Here, the legacy comprises the entire disposable free portion. his heirs under the rules of intestacy.
2. Divide the estate if A repudiated the legacy Example:

Heir Legitime Legacy Intestate Total Tony executed a will with only one disposition: a legacy of P30k
share to his faithful driver Happy. Tony died with an estate of P90k with
Peter 22,500 0 7,500 30,000 the following survivors: Peter, Harley and Kamala, as legitimate
Harley 22,500 7,500 30,000 children, and Pepper, the surviving spouse.
Pepper 22,500 7,500 30,000
If all are capacitated to inherit and all accepted the inheritance,
Total 67,500 0 22,500 90,000
estate will be divided as follows:

Repudiated legacy will revert back to the estate of Tony and, Heir Legitime Legacy Total
Peter 15,000 15,000
there being no substitution, representation or accretion, will be
distributed to the heirs of Tony under the rules of intestacy. Harley 15,000 15,000
Kamala 15,000 15,000
3. Divide the estate if A accepted the legacy but Pepper 15,000 15,000
repudiated his share as a CH. Happy 30,000 30,000
Total 60,000 30,000 90,000
Heir Legitime Legacy Total
Peter 0 22,500 22,500
Harley 45,000 45,000 Legacy of Happy did not impair the legitime of the CH.
Pepper 22,500 22,500
If Happy predeceased Tony, or is otherwise incapacitated to
Total 67,500 22,500 90,000
inherit from Tony, or repudiates the legacy, the legacy shall
revert to the estate of Tony and shall be distributed to the heirs
The strict legitime shall be consolidated in Harley as though of Tony under the rules of intestacy, there being no substitution
Harley was the only legitimate descendant of Tony. Accordingly, or accretion. Each of the CH will receive an additional amount
Harley’s share is ½ of the estate and Pepper gets ¼. Peter will of P7,500.
receive a legacy even if he repudiated his legitime.
Article 956

If Tony appointed Natasha as a substitute for Happy, and Happy
predeceased, or is incapacitated, or repudiates the legacy, the
legacy of P30k shall be awarded to the substitute Natasha.
GR: In case substitution or accretion is available and the legacy
is subject to a burden or condition, the person or persons who
shall benefit from the substitution or accretion are subject to the
same burden or condition.
EXCEPTION: If burden or condition is clearly personal to the
predeceased, incapacitated or repudiating legatee or devisee.
In this case, burden extinguishes when substitution or accretion
takes place.
Article 957
The legacy or devise shall be without effect:
(1) If the testator transforms the thing bequeathed in such
a manner that it does not retain either the form or the
denomination it had;
(2) If the testator by any title or for any cause alienates the
thing bequeathed or any part thereof, it being understood
that in the latter case the legacy or devise shall be without
effect only with respect to the part thus alienated. If after
the alienation the thing should again belong to the testator,
even if it be by reason of nullity of the contract, the legacy
or devise shall not thereafter be valid, unless the
reacquisition shall have been effected by virtue of the
exercise of the right of repurchase;
(3) If the thing bequeathed is totally lost during the lifetime
of the testator, or after his death without the heir's fault.
Nevertheless, the person obliged to pay the legacy or
devise shall be liable for eviction if the thing bequeathed
should not have been determinate as to its kind, in
accordance with the provisions of article 928.
Ineffective Legacies and Devises
1. Loss of the thing bequeathed
2. Transformation of the thing bequeathed
3. Alienation of the object of the object
(a) Nullity of the alienation
(b) Conditional alienation
1. Loss of the thing bequeathed
Not limited to physical or material loss. The thing here must be
a specific thing for this article to apply. The loss of a specific
thing due solely to force majeure renders the legacy or devise
P a g e | 121
ineffective without any liability on the part of the administrator of
the estate or person burdened with the legacy or devise.
However, if executor or administrator guilty of fault or negligence,
he or she shall be accountable for ht eloss of the thing pursuant
to ROC 85(1). Value of the thing lost shall be charged against
the bond filed by teh executor or administrator.
If the object of legacy or devise belongs to a third person and
the same is lost due to the fault or negligence on the part of the
person burdened with the legacy or devise, the latter shall be
liable to the legatee or devise for the fair value of the thing.
2. Transformation of the thing bequeathed
There is transformation of the thing bequeathed if the
transformation changes its form or denomination.
Form = physical appearance of the thing; denomination = name
by which the thing is commonly known.
Example: testator gives 5-hectare parcel of rice and to devisee.
Testator applied, in his lifetime, for land conversion with DAR
and the rice land was reclassified from agricultural to industrial
land. The Riceland was redeveloped into an industrial estate
and thereafter registered as an export processing zone. The
transformation caused a change in form and denomination of
the rice land. As such, devise is implicitly revoked.
3. Alienation of the object of the object
If the testator voluntarily alienates the object of the legacy or
devise, the testator’s intention to give it to the legatee or devisee
is negated.
If testator disposes the object of legacy or devise, the legacy or
devise is implicitly revoked.
GR: The fact that the testator should subsequently reacquire the
property by any title will not reinstate the legacy or devise.
EXCEPT: by right of repurchase.
Even if disposition of object should subsequently be declared
void, implied revocation will hold.
HOWEVER, if conveyance of object is involuntary on the part of
the testator, the legacy or devise cannot be considered implicitly
revoked. There is no intention to alienate the thing.
(a) Nullity of the alienation
If after the alienation, the thing should again belong to the
testator by reason of the nullity of the contract, the legacy or

devise shall not be valid. Term nullity includes voidable
alienations.
The critical factor that determines WON there is an implicit
revocation of a legacy or devise is the intention of the testator to
alienate the object.
Example: Testator was a grantee of a free patent under CA 141.
He bequeathed the land to D. However, after execution of the
will, the testator sold the land to X during the prohibitory period
of 10 years. Under Sec. 29 of CA 141, said sale is void.
Nonetheless, due to the intention of the testator to dispose the
land, the devise in favor of D is impliedly revoked, even if the
subsequent sale to X is declared void.
(b) Conditional alienation
If the alienation of the object of legacy or devise is subject to a
suspensive condition, the alienation will not result in the
revocation of the gift pending the fulfillment of the condition.
Testator retains ownership until condition is fulfilled. If condition
is not fulfilled, legacy or devise shall not be deemed revoked.
If the alienation of the thing is subject to a suspensive term, the
testator’s intention to dispose the same is evident, deferred only
to some definite future time.
If the alienation of the object of a legacy or devise is subject to
a resolutory condition, the alienation will result in the implied
revocation of the gift from the time alienation takes effect.
Alienation is immediately effective, albeit subject to the testator’s
recovery of the title upon the happening of the resolutory
condition. Even so, the legacy or devise shall not be reinstated
because, under Art. 957, reinstatement is possible only If the
testator’s recovery of ownership is by exercise of his right to
repurchase.
If the alienation of the object of a legacy or devise is subject to
a resolutory term, the alienation will result in the implied
revocation of the gift from the time alienation takes effect. Also
not reinstated unless by exercise of his right to repurchase.
Divisiblity of Gift
This article refers to a divisible legacy or devise. Accordingly,
partial alienation of the object of a legacy or devise will result in
the implicit revocation of that part of the thing which is the object
of alienation; the legacy or devise shall subsist with respect to
that part of the thing which is not covered by the alienation.
Article 958
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A mistake as to the name of the thing bequeathed or
devised, is of no consequence, if it is possible to identify
the thing which the testator intended to bequeath or devise.
Article 959
A disposition made in general terms in favor of the
testator's relatives shall be understood to be in favor of
those nearest in degree.
A Misplaced Provision
This article seems to be a misplaced provision since it broadly
covers dispositions made in general terms. Its scope is not
limited to legacies and devises but encompasses all
testamentary dispositions in general. Atty. Sebastian says it
should have been included as part of the group in Art. 789 – 792.
This article should be interpreted in its literal sense and without
distinction. All relatives within the first degree, without taking into
account the ascending or descending line, will exclude relatives
of the second degree. Relatives within the second degree,
disregarding the direct and collateral lines, will exclude relatives
of the third degree and so forth.
The relatives referred to in this article are those related to the
testator by blood, excluding those related to him by affinity.
CHAPTER 3
LEGAL OR INTESTATE
SUCCESSION
SECTION 1 – GENERAL PROVISIONS
Article 960
Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one
which has subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of
all the property belonging to the testator. In such case, legal
succession shall take place only with respect to the
property of which the testator has not disposed;
(3) If the suspensive condition attached to the institution of
heir does not happen or is not fulfilled, or if the heir dies
before the testator, or repudiates the inheritance, there
being no substitution, and no right of accretion takes place;

(4) When the heir instituted is incapable of succeeding,
except in cases provided in this Code.
Sebastian Lecture:
MEMORIZE:
1. Order of intestate succession- priority
2. Order of intestate succession- entirely and completely
in line with the rules on legitime.
Preference of Testacy over Intestacy
Testacy is preferred over intestacy (Rodriguez v. Borja)
The testator’s wishes and intention constitute the first and
principal law in the matter of testaments. And when expressed
clearly and precisely in his last will, they amount to the only law
whose mandate must be faithfully obeyed and complied with.
(Dizon-Rivera v. Dizon)
Therefore courts must exert every reasonable effort to give
effect to the will and disregard minor defects of form which do
not compromise the genuineness, authenticity and the
voluntariness of the execution of the will.
In the following cases, the SC bent some rules prescribed in the
execution of a will to prevent intestacy from taking place:
1. Nera v. Rimando (test of presence)
It is not necessary for the testator and the witnesses,
during the execution of the will, to actually see each
other affix their respective signatures to the will, it being
sufficient that they might have seen each other.
2. Taboada v. Rosal
- Will composed of only 2 pages
- Page 1: entire testamentary dispositions
- Page 2: attestation clause and acknowledgment
Court disregarded the rule that the witnesses must sign at
the end of the testamentary dispositions when they signed
at the left margin of page 1.
- Attestation clause failed to state the number of
pages
- The acknowledgment, on the other hand, stated
the number of pages
3. Icasiano v. Icasiano
A witness omitted to sign the 3rd page of the will by
inadvertence. The court allowed the probate of the will
basing from a duplicate copy of the original testament
which showed that the witness signed in all the pages.
4. Lopez v. Liboro
P a g e | 123
Court allowed probate even if:
i. The first sheet of a 2-page will was not paged
either in letters of in Arabic numerals
ii. Testator affixed thumb mark instead of
signature
iii. No statement that testator knew the language
in which the will was written
5. Samaniego-Celada v. Abena
Error in number of pages of the will as stated in the
attestation clause is not material so as to invalidate the
will
6. Alvarado v. Gaviola Jr.
Court allowed a radical departure from the twin
requirements under 808 by admitting the will of the
blind testator even if it was read to him only once by a
person who was neither the notary public before whom
the will was acknowledged.
7. Roxas v. de Jesus Jr.
Holographic will was admitted to probate despite being
incompletely dated since there was no evidence of bad
faith, fraud, and undue and improper influence and
pressure.
More importantly in 809 the law mandates a liberal interpretation
of the attestation clause of a notarial will which should remain
valid in the absence of bad faith, forgery, fraud etc.
Intestate succession is a type of succession that takes place
when decedent failed to express his property dispositions in a
valid and operative last will and testament.
- Disposition of property controlled by law
Rodriguez, et al v. Borja et al.
Intestate succession is only subsidiary to the testate, since
intestacy only takes place in the absence of a valid and
operative will.
Intestate proceedings should be discontinued, while the probate
proceedings should be given priority.
The presumed will of the Decedent
The framers of the law put themselves into the shoes of the
decedent in an attempt to distribute the latter’s estate in a
manner that will most closely resemble the distribution which the
decedent would have made. In this sense, there is a distribution
of inheritance in accordance with the decedent’s presumed will.
Causes of Intestacy

1. Decedent dies without a will
- Most common cause of intestacy
Reluctance to write a will because:
-Does not believe it to be timely
-Not certain as to how he should divide the estate
-Resists the idea of death
-Believes that not much is to distributed
-Execution of a will would imply expose his estate
to taxation
2. Decedent dies with a void will
Failure to comply with legal requirements:
- Testamentary capacity (797-798)
- Formalities of a notarial will
- Formalities of a holographic will
Under 839, the above are causes for disallowance of will
3. Decedent dies with a will that had lost its validity
The phrase, a will which “has subsequently lost its validity” is
inaccurate.
A valid will is one which at the time of execution:
(a) Testator possessed testamentary capacity
(b) Formalities were observed
But the supervening incapacity of the testator does not
invalidate a will and so does any subsequent change in the
required formalities.
The more logical interpretation is that the word “validity” must be
understood as efficacy.
A valid will loses efficacy once revoked. Revocation will only
result in intestacy if the testator afterwards fail or omits to
execute a new will.
4. The will does not institute an heir
- Erroneous
“Art. 841. A will is valid even though it should not contain an
institution of heir…”
Seangio v. Reyes – valid even of only disposition is the
disinheritance of a son
Dizon-Rivera v. Dizon – valid even if will only contained
distribution of entire estate through legacies and devises
5. The will failed to dispose the entire estate
P a g e | 124
Easy to distribute entire inheritance if with basic skills in
arithmetic (fractions – used in institution of heirs)
Significant chance of not being able to dispose of the entire
estate , if testator chooses to award specific property to specific
beneficiaries.
Undistributed property – through intestacy
6. Non-fulfillment of a suspensive condition attached to
the institution of heirs
Institution subject of a suspensive condition – efficacy is
deferred until fulfillment
Non-fulfillment – intestacy
But intestacy may be prevented by appointing substitute heirs to
the conditionally instituted heirs
7. The instituted heir predeceases the testator or is
otherwise incapacitated to inherit from the latter, or
repudiates the inheritance
Predecease, incapacity and repudiation does not necessarily
result in intestacy. Subject to the application of substitution,
representation and right of accretion.
8. Other causes of intestacy
Enumeration under 960 not exclusive.
- Institution of an heir subject to a resolutory term or
condition, upon arrival of term or fulfillment of
condition
- Illegality of testamentary disposition
- Preterition (always results in intestacy) partial
intestacy only if there are legacies or devises
which may be given effect
Article 961
In default of testamentary heirs, the law vests the
inheritance, in accordance with the rules hereinafter set
forth, in the legitimate and illegitimate relatives of the
deceased, in the surviving spouse, and in the State.
The Intestate Heirs
Three basic categories
i. Intestate heirs who are likewise compulsory heirs
ii. Collateral relatives
iii. Intestate heir by default – state
 P a g e | 125

Article 962 2. Relatives in descending line are preferred over

relatives in ascending line
In every inheritance, the relative nearest in degree excludes
Same degree – inherit concurrently but descending line
the more distant ones, saving the right of representation
is preferred
when it properly takes place.
Relatives in the same degree shall inherit in equal shares, Succession pertains in the first place in the direct
subject to the provisions of article 1006 with respect to descending line. It is only in default of children and
relatives of the full and half blood, and of article 987, descendants that parents and other ascendants inherit.
paragraph 2, concerning division between the paternal and
maternal lines. Legitimate child of decedent preferred over his
legitimate parent
Fundamental Rules of Intestacy
(i) Rule of proximity 3. Relatives in direct line are preferred over relatives in
(ii) Rule of equal division collateral line

The Rules of Proximity Direct line preferred over collateral line

- Prescribes the relatives nearest to the decedent in
degree will inherit from the decedent to the
exclusion of the more remote ones
- Son (1st degree) excludes grandfather (2nd degree)
- Presumed that decedent had deeper affection to a
relative in a nearer degree
De Los Santos v. De la Cruz
Nephew (3rd degree) excludes grandniece (4th degree)
Bagunu v. Piedad
Maternal aunt (3rd degree) excludes the daughter of a first
cousin (5th degree)
Right of representation is not available to “other collateral
relatives within the fifth civil degree”
Heirs of Pascasio Uriarte v. CA
Half-blood nephew (3rd degree) excludes the children of first
cousin (5th degree)
Being half-blood is immaterial. Full-blood and half-blood
distinction material only in determining shares of survivors.
Exceptions to the Rule of Proximity
1. The rule of proximity yields to the right of
representation
Representation is a right created by law where a
representative is raised to the place and degree of the
person represented and acquires the latter’s rights which
he could have if he were living or if he could have inherited.
Order of preference on intestate succession:
1. Descending direct line
2. Ascending direct line
3. Surviving spouse
4. Collateral relatives only up to 5th civil degree
5. State
Preference for direct line is obvious
Legitimate grandson excludes legitimate brother
The Rule of Equal Division
Heirs of the same degree shall inherit in equal shares.
Presumption: equal affection by decedent to relatives of same
degree
Exceptions to the Rule of Equal Division
1. The decedent’s brothers and sisters of the full blood
are entitled to twice the shares of brothers and sisters
of the half blood
Art.1006
2. In the ascending line, the inheritance is divided equally
between the paternal and material lines. Within each
line, the inheritance is divided per capita.
“Art.987. in default of the father and mother, the ascendants
nearest in degree shall inherit.
Should there be more than one of equal degree belonging
to the same line, they shall divide the inheritance per capita;
should they be of different lines but of equal degree, one-
 P a g e | 126

half shall go to the paternal line and the other half to the c. LGC D (legitimate grandchildren)
maternal line. In each line the division shall be made per d. LGC E
capita.” e. LGC F
f. LGC G
X- decedent
D, E,F and G are children of C who predeceased X
NHE – 100k
Survivors: Heir Intestate Representation total
a. GPM A (grandparent maternal) share
b. GPM B A 40k 40k
c. GPP C (grandparent paternal) B 40k 40k
d. GPP D D 10k 10k
E 10k 10k
Maternal 50k Paternal 50k F 10k 10k
line line G 10k 10k
Heir Intestate Heir Intestate total 80k 40k 120k
share share
A 25k C 25k
What if B also predeceased? B’s legitimate children H and I
B 25k D 25k
would represent him
Total 50k Total 50k
Heir Intestate representation total
If A predecease share
A 40k 40k
Maternal 50k Paternal 50k H 20k 20k
line line
I 20k 20k
Heir Intestate Heir Intestate
D 10k 10k
share share
E 10k 10k
A (+) 0 C 25k
F 10k 10k
B 50k D 25k
G 10k 10k
Total 50k Total 50k
total 80k 120k

Even if the grandparents from both lines are 2nd degree relatives,
B had double amount of shares because A predeceased
decedent.
3. Whenever heirs inherit by right of representation, the
representatives get only that portion which the person
represented would otherwise inherit if he were living
and could inherit.
“Art.974. Whenever there is succession by representation,
the division of the estate shall be made per stirpes, in such
a manner that the representative or representatives shall
not inherit more than that what the person they represent
would inherit, if living or could inherit.”
x- decedent
NHE – 120k
Survivors:
a. LC A (legitimate child)
b. LC B
In the above example, while both (D,E,F,G) and (H,I)
represented their parents, the latter got more shares.
RELATIONSHIP
Article 963.
Proximity of relationship is determined by the number of
generations. Each generations forms a degree.
Article 964.
A series of degree forms a line, which may be either direct
or collateral.
A direct line is that constituted by the series of degrees
among ascendants and descendants
A collateral line is that constituted by the series of degrees
among ascendants and descendants, but who come from a
common ancestor. (916a)

Article 965.
The direct line is either descending or ascending.
The former unites the head of the family with those who
descend from him.
The latter binds a person with those from whom he
descends. (917)
Article 966. In the line, as many degrees are counted as
there are generations or persons, excluding the progenitor.
In the direct line, ascent is made to the common
ancestor. Thus, the child is one degree removed from the
parent, two from the grandfather, and three from the great-
grandparent.
In the collateral line, ascent is made to the common
ancestor and then descent is made to the person with
whom the computation is to be made. Thus, a person is two
degrees removed from his brother, three from his uncle,
who is the brother of his father, four from his first cousin,
and so forth. (918a)
Article 967.
Full blood relationship is that existing between persons
who have the same father and the same mother.
Half blood relationship is that existing between persons
who have the same father, but not the same mother, or the
same mother, but not the same father. (920a)
The foregoing provisions are self explanatory.
Article 968.
If there are several relatives of the same degree, and one or
some of them are unwilling or incapacitated to succeed, his
portion shall accrue to the others of the same degree, save
the right of representation when it should take place. (922)
ACCRETION IN INTESTATE SUCCESSION
Art. 968 refers to repudiation and incapacity as specific causes
for a vacany in the inheritance where there are several heirs of
the same degree who are entitled to the same inheritance.
GR: if any intestate heirs should be unable or unwilling to accept,
the vacant portion pertaining to such heir shall not devolve to
the relatives next in degree, BUT shall accrue in favor of the co-
heirs of the same degree by right of accretion.
P a g e | 127
BUT, if the vacany in the inheritance is caused specifically by
the INCAPACITY of the heir, the incapacitated heir may, under
the condition specified by law, BE REPRESENTED by his
descendants; in which case accretion in favor of the co-heirs of
the incapacitated shall not take place.
 The right of representations is SUPERIOR to the right
of accretion.
EXAMPLE:
A’s Estate: P90,000
Intestate heirs of A: Legitimate brothers B, C and D
1. If all the heirs accepted the inheritance, each will receive
P30,000
2. if B is incapacitated to inherit from A, but B has 2 children E
and F:
a. The vacant portion pertaining to B shall pertain to E
and F in equal shares by right of representation
b. such VP shall not accrue in favor of legitimate brothers
C and D because the right of representation is
superior to the right of accretion.
3. However if E and F are illegitimate children of B, these IC
are barred from inheriting from A. (Art. 992: A LC has no right
to inherit ab inestato from the legitimate children and relatives of
his father or mother; nor shall such children or relatives inherit
in the same manner from the illegitimate child.) In this case, the
VP pertaining to B shall accrue in favor of C and D.
Article 969.
If the inheritance should be repudiated by the nearest
relative, should there be one only, or by all the nearest
relatives called by law to succeed, should there be several,
those of the following degree shall inherit in their own right
and cannot represent the person or persons repudiating the
inheritance.
Art. 969 provided for the only instance when
succession is pushed down to the relatives next in degree.
Ex. When the relative nearest in degree, if there is only one, or
all the nearest relatives called by law succeed, if there are
several, should repudiate the inheritance.
EXAMPLE:
A – decedent
B C D – brothers of A (relatives of A in the second degree)

E & F – legitimate children of B
1. If B, C & D should collectively repudiate the inheritance of
A, the same shall pertain to E and F as relatives of A in the 3rd
degree. E & F shall hall inherit from A as intestate heirs in
their own right.
2. Having repudiated the inheritance of A, B cannot be
represented by his children E and F.
3. If E & F are illegitimate children of B, they are disqualified
to inherit from A under Art. 992. In which case, the inheritance
of A will be pushed further down to qualified relatives next in
degree, and all the way down to the 5th civil degree. If no relative
should qualify, the inheritance shall pertain to the State.
IN SUM:
o If an heir repudiated the inheritance of the decedent,
he cannot be represented by his children
o The collective repudiation of the inheritance by the
children (from their father <decedent>) pushes down
the succession to the grandchildren, the descendants
of the decedent next in degree in the descending line,
who will inherit in their own right, not by right of
representation.
o The representatives inherit that which the person
represented would inherit, if living at the time of the
death of the decedent and capacitated to inherit from
the latter.
RIGHT OF REPRESENTATION
Article 970.
Representation is a right created by fiction of law, by virtue
of which the representative is raised to the place and the
degree of the person represented, and acquires the rights
which the latter would have if he were living or if he could
have inherited. (942a)
Article 971.
The representative is called to the succession by the law
and not by the person represented. The representative does
not succeed the person represented but the one whom the
person represented would have succeeded. (n)
Concept of the Right of Representation
P a g e | 128
Right created by fiction of law. The fiction lies in the
raising of a more distant relative to the place and the degree of
the person who is unable to accept an inheritance because:
1. such person was disinherited by decedent
2. he was declared incapacitated to inherit from the
decedent
3. he predeceased the decedent
Availability and Scope of Representation
The right of representation (RR) is exercisable both in
testamentary and intestate succession, but with marked
difference.
TESTAMENTARY SUCCESSION:
o RR is available in cases of disinheritance, incapacity
and predecease (DIP).
o The RR covers only the legitime of the person
represented.
o The right is available only in the descending line,
never in ascending line.
INTESTATE SUCCESSION:
o Avaiable in cases of incapacity and predecease (IP)
o Covers the full intestate share of the person
represented
o Generally available only in the descending line, by way
on exception it may be exercised in the collateral line
BUT only by the children of brothers and sisters of
the decedent (full or half blood)
Basic Principles of the Right of Representation
BASE CASE EX: Spouses A and B have 2 illegitimate child, C
& D.
B has an illegitimate child E by an extramarital affair.
C has 2 descendants: F and illegitimate child and G a legitimate
child.
D has 2 descendants: H an adopted child and J and LC
E has 2 descendants: K and L both illegitimate
G has a LC M.
H has a legitimate child N.
B died intestate.

1. The right of representation is an exception to the rule of
proximity (the nearer will exclude the more distantly related.
The RR prevents the exclusion of relatives more distantly
related to the decedent by those nearer in degree by raising the
representative to the place and degree of the person to be
represented.
It is for the purpose of enabling the representative to acquire the
inheritance due to the person represented which the latter is
deprived of (as a result of disinheritance) or which he cannot
otherwise accept (bec of predecease and incapacity)
2. The representative is called to the succession by law
- the representative is called to the succession by law and not
by the person represented. The representative inherits from the
decedent not because the person represented wants him to, but
because the law vests in the representative the right to inherit
3. The representative does not inherit from the person
represented
o The representative does not inherit from the person he
represents, but from the decedent whom the person
represented would have succeeded.
o In the base case, if B validly disinherited E (illegitimate
child of B), K and L will exercise the right of
representation (Art. 902: predeceased IL of the
decedent may be represented by their respective
descendants whethere legitimate or illegitimate) and
shall receive the legitime of E.
o K and L inherit from their grandfather B and from their
father E.
o Notice that E never acquired ownership of any part of
B’s estate. Clearly, E passed nothing to his children K
and L.
o K and L, while they are illegitimate children of E, are
not barred by article 992 from inheriting from B
because the line of B to E and the line from E to K and
L are both illegitimate.
o Whatever K and L receive from the estate of B will
pertain to them in ownership to the exclusion of E who
is barred from enjoying the usufruct or administration
of the same (Art.923).
4. The representative must be capacitated to inherit from
the decedent.
The capacity or incapacity of the representative to
inherit from the person represented is totally irrelevant because
the representative inherits from the decedent and not from the
P a g e | 129
person represented hence the representative must be
capacitated to inherit from the decedent.
Thus in the base case, G (legitimate child of C) may
represent his father C in the inheritance from B because G is
capacitated to inherit from B.
However, F (illegitimate child of C) is disqualified to
inherit from B because of the separation of the legitimate from
illegitimate family under Art. 992. There’s disqualification even if
F is fully capacitated to inherit from his father C.
5. An adopted child may not represent his adoptive parent.
The artificial relationship created by adoption is limited
to the adopter and the adopted child. Such relationship doesn’t
not extend to the biological relatives of either of them.
DE LA PUERTA v. CA
- No right of representation for adopted child
- The fictional tie that binds the adopter and the adopted
does not extend to the relatives of the adopter.
SAYSON v. CA
The right of representation is accorded to the legitimate
grandchild and it is unavailable to the adopted child
The legitimate child has a right to represent her
deceased father in the distribution of the intestate estate of her
grandparents. Under Art. 981, she is entitled to the share her
father would have directly inherited had he survived, which shall
be equal to the shares of her grandparents’ other children.
While it is true that the adopted child shall be deemed
to be a legitimate child and have the same rights as the latter,
these rights do not include the right of representation.
6. An adopted child may not be represented in the
inheritance of his adoptive parent.
Same reason in de la Puerta, an adopted child cannot
be represented in the succession to the inheritance of the
adopting parents.
7. A representative only steps into the shoes of the person
represented.
Representative is entitled to receive no more than the
share pertaining to the person represented.
Does not inherit from the decedent in his own right.

8. In the descending line, the right of representation is
exercisable in an unbroken share one degree at a time.
Thus in the base case example, if G (grandchild of B)
repudiated the inheritance of B, M (great-grandchild of B)
cannot inherit from his great-grandfather B by representing his
grandfather C because the successional right that would link
M to his great-grandfather B is broken by the repudiation of
B’s inheritance by G.
9 Because representation is a right created by fiction of law, it
does not take into account the wishes of the deceased person.
Representation therefore transmits to the
representative only that portion of the estate which the
person represented is entitled by law to receive from the
decedent.
TESTAMENTARY: legitime of CH who is represented
INTESTATE: full intestate share of the person represented.
VOLUNTARY SUCCESSION: the right of representation cannot
to these personal dispositions of the testator. The law would
have no basis to best unto the representatives of a VH the right
to receive. Nonetheless, if the testator explicitly provides in his
will for the representation of a VH, the disposition must be
construed as, for indeed it is, a form of substitution.
Article 972.
The right of representation takes place in the direct
descending line, but never in the ascending.
In the collateral line, it takes place only in favor of the
children of brothers or sisters, whether they be of the full
or half blood. (925)
Representation in the Descending Line
o Available only in the descending line.
o Representation is unlimited in the sense that
the successional right will descend one
person at a time in an unbroken chain until
the law finds that descendant who will
inherit from the decedent in representation of
the intervening persons who are unable to
exercise such right
EXAMPLE:
Father A -> Son B -> Grandson C -> Great-Grandson D
P a g e | 130
1. D may inherit from A in representation of C and B. It is not
necessary, in order for D to inherit from A, that he (D) is alive (or
at least conceived) at the time of the death of A.
2. However, a repudiating intermediate heir will break the chain
that would link D to the estate of A would thus prevent D’s
exercise of the right of representation.
3. If C repudiated A’s inheritance, D cannot exercise the right of
representation but D may be able to inherit from A in D’s own
right if D is the nearest surviving descendant of A.
Representation in Collateral Line
o Available only in intestate succession, NEVER in
testamentary succession.
o May be exercised exclusively by the children of
brothers and sisters of the decedent (decedent’s
nephews and nieces)
o Nephews and nieces inheriting in a representative
capacity inherit as relatives of the decedent in the 2nd
degree
o RR cannot be extended to grandnephews and
grandnieces
o Nephews and nieces may exercise RR only if they
concur with at least one uncle or aunt; otherwise
they inherit in their own right as relatives of the
decedent in the 3rd degree.
o Subject to the barrier in Art.992
EXAMPLE:
Legit bros A B C
LEGIT
D E F G H
NEPHEWS &
NIECES
D
A died intestate with an estate of 90K

1. If B and C survive A and are capacitated to inherit from A,
they will divide the estate equally between them at 45k each
2. If B predeceased A, D and E shall exercise the right of
representation with respect to B’s share of 45k. D and E,
inheriting by representation as 2nd degree relatives of A in
the collateral line, will each receive P22,500. C will receive 45k.
3. if both B and C predeceased A, or should otherwise be
incapacitated to inherit from A, the nephews and nieces D, E,
F, G, and H will inherit from A in their own right as 3rd degree
relatives of A in the collateral line, dividing the estate equally
among them at 18k.
4. If B and D predeceased A, J is not entitled to exercise the RR
because J is a grandnephew of A. E gets P45K in representation
of B. C gets 45K.
 Nephews and nieces inheriting from the decedent in a
representative capacity inherit as 2nd degree
relatives of the latter in the collateral line.
 They will exclude all other relatives of the decedent
who are more remote in degrees
 Nephews and nieces inheriting from decedent in their
own right inherit as 3rd degree relatives of the latter
in the collateral line.
 They will exclude all other relatives of the decedent
more remote in degree including the uncles and aunts
of the decedent, although such uncles and aunts are
likewise related to the decedent in the 3rd degree
(Abellana-Bacayo)
ABELLANA-BACAYO v. FERRARIS-BORROMEO
A decedent’s uncles and aunts may not succeed ab
intestate so long as nephews and nieces of the decedent survive
and are willing & qualified to succeed.
Representation of Illegitimate Brothers and Sisters
When succession flows in the collateral line, an illegitimate
brother or sister may be represented by his or her descendants,
regardless of the legitimacy or illegitimacy of the latter.
EXAMPLE:
Illegit bros A B
NEPHEWS &
D E F G
NIECES
P a g e | 131
1. If B and C survive A, each of B and C will receive 45K in their
own right
2. If B predeceased A, D and E will each receive P22,500 pesos
representing B in A’s inheritance. D and E inherit as 2nd degree
relatives of A in the collateral line. C gets the other half of the
estate (45k)
3. If both B and C predeceased A or incapacitated to inherit - D,
E, F, G and H will inherit from A in their own right as 3rd degree
relatives of A in the collateral line, each receiving 18k.
4. Article 992 has no application since the nephews and nieces
are qualified to inherit from an illegitimate relative of their father.
 If A was a legitimate child, and B and C were
illegitimate children, the latter would be disqualified to
inherit from the former by intestacy pursuant to Article
992. If B and C are denied successional right, their
descendants cannot exercise the RR in respect of the
inheritance of A.
Article 973.
In order that representation may take place, it is necessary
that the representative himself be capable of succeeding
the decedent. (n)
Representative must be capacitated to inherit from the
decedent . It is not important if the representative is capacitated
to inherit from the person he is representing.
Example: Son B disinherited Grandson C, Grandson C may
exercise the right of representation, if qualified and capacitated,
in order to inherit from A (Father of B/ Grandfather of C)
Article 974.
Whenever there is succession by representation, the
division of the estate shall be made per stirpes, in such
manner that the representative or representatives shall not
inherit more than what the person they represent would
inherit, if he were living or could inherit. (926a)
o the representative or representatives is/are called
C upon by law to take the share of the person
represented.
o Thus, regardless of the actual number of
representatives, they are considered as one group
H entitled to get no more than the share of the person
whom they represent.

o A distribution per capita among the representatives
would work injustice to those heirs who inherit in their
own right.
 Ex. If the estate will be divided per
capita, the surviving child will be
grossly disadvantaged because the
estate will be divided into equal parts
between him and the grandchildren
(children of his bros/sis or his
nephews/nieces). In effect, the
surviving child will be penalized for
surviving his father while the
grandchildren would be rewarded
simply bec their parents (bros/sis of
the surviving child), predeceased
their father.
Article 975.
When children of one or more brothers or sisters of the
deceased survive, they shall inherit from the latter by
representation, if they survive with their uncles or aunts.
But if they alone survive, they shall inherit in equal portions.
(927)
Discussed in Abellana-Bacayo supra
Article 976.
A person may represent him whose inheritance he has
renounced.
Article 977.
Heirs who repudiate their share may not be represented.
Art. 976 and 977 give rise to the rule that a repudiator
may represent but may not be represented.
1. A repudiator may represent – while a son repudiated his
father’s inheritance, it does not follow that the son is unwilling to
accept the inheritance of his grandfather.
Since in representation, the representative inherits from the
decedent and not from the person whom he represents.
2. A repudiator cannot be represented
P a g e | 132
If the repudiator is not willing to accept the inheritance of the
decedent, there is no legal basis to allow the repudiator’s
children to accept that which the repudiator has repudiated.
BUT they can inherit in their own right as the nearest surviving
descendants of their grandfather (Ex. if the remaining child
(uncle nya na natira) predeceased their grandfather.
Meaning: since nag repudiate tatay nila sa inheritance ng lolo
nila, bawal sila mag represent sa tatay nila BUT dahil yung
nagiisang kapatid ng tatay nila ay na predeceased yung lolo nila,
sila na nearest relatives, so they will inherit in their own right.
Lol )
Differences between Representation in Testamentary and
Inestate Succession
1. Representation in testamentary succession
o The RR is available in cases of disinheritance,
incapacity and predecease (DIP)
o available only in the descending line
o only with respect to the legitime of the person
represented.
o Art. 992 applies as a barrier
2. Representation in Intestate succession
o Assume that testator’s will was denied probate on
account of non-compliance with the formal requisites
of a notarial will. The testator’s estate will be distributed
under the rules of intestacy.
o RR is available in cases of incapacity and
predecease
o Covers the full intestate share of the person
represented
o Art. 992 applies as a barrier
Section 2
Order of Intestate Succession
The Principle of Occurrence
Intestate succession under the NCC abandoned the
exclusionary rule and adopted the rule of concurrence. Thus,
while legitimate children are on top of the hierarchy of intestate
heirs, they do not excluse the surviving spouse and the
illegitimate children.
Problem in case of Partial Intestacy
 P a g e | 133

Writer suggests (atty. Sebastian): Legitimate parents and other Illegitimate children and their
legitimate ascendants enjoy descendants enjoy a
o Pay the legacy which is not inofficious preference over illegitimate preference over the
o Give the legitime of CH children and their illegitimate parents
o Divide the disposable free portion equally between the descendants
CH Succession in the ascending Succession in the ascending
line includes legitimate line is limited to the
Order of Intestate Succession parents and other legitimate illegitimate parents only.
o The statutory order of preference of intestate heirs in ascendants Other illegitimate ascendants
the succession to estate of the decedent. are excluded
o Order of intestate succession is controlled by the status Legitimate brothers, sisters, In the collateral line,
nephews and nieces enjoy a succession is limited to
of the decedent
preference over all other illegitimate brothers, sisters,
1. Order of intestate succession to a legitimate decedent legitimate collateral relatives nephews and nieces. No
within the fifth degree, for other collateral relatives is
1. Legitimate children and their legitimate descendants, which reason they exclude called to the succession.
with respect to their legitimate parents and other legitimate uncles and aunts
legitimate ascendants
2. Legitimate parents and other legitimate ascendants,
with respect to their legitimate children and other
legitimate descendants Descending Direct Line
3. Illegitimate children and their descendants, whether
legitimate or illegitimate Article 978.
4. Surviving spouse Succession pertains, in the first place, to the descending
5. Legitimate brothers, sisters, nephews and nieces direct line.
6. Other legitimate collateral relatives up to the fifth
degree Article 979.
7. The state
Legitimate children and their descendants succeed the
2. Order of intestate succession to an illegitimate decedent parents and other ascendants, without distinction as to sex
or age, and even if they should come from different
1. Legitimate children and other legitimate descendants, marriages.
with respect to their legitimate parents
2. Illegitimate children and their descendants, whether An adopted child succeeds to the property of the
legitimate or illegitimate adopting parents in the same manner as a legitimate child.
3. In default of the foregoing, the illegitimate parents
Legitimate Descendants
4. Surviving spouse
5. Illegitimate brothers, sisters, nephews and nieces o Descendants in Art. 979 means the descendants of
6. The state legitimate children, or
o as regards the decedent, his grandchildren, great-
3. Differences between the succession to a legitimate and
grandchildren and other descendants beyond.
an illegitimate decedent
o Art. 979 does not make a qualification as regards the
LEGITIMATE DECEDENT ILLEGITIMATE DECEDENT descendants but it understood that these descendants
Legitimate parents and other Illegitimate parents are must be legitimate
legitimate ascendants are excluded by any descendant, o In Art. 992, the IC and other illegitimate descendants
excluded by legitimate whether legitimate, adopted, have no right to inherit ab intestate from the LC and
children and their legitimate or illegitimate other legitimate relatives of their father or mother
descendants, as well as by o Art. 978 confirms the top preference to LC but it does
an adopted child not mean the exclusion of the SS and the IC who,
together with the LC, are concurring intestate heirs.
 P a g e | 134

However, the LC exclude the parents and other
ascendants, the collateral relatives, and the state.
The Adopted Child
Art. 189 FC: ”the adopted child shall be deemed to be a
legitimate child of the adopters”
Thus, the successional right of an adopted with respect to the
adopting parents is the same as that of a LC.
This is confirmed in Acain v. Intermediate Appellate Court: the
total omission of an adopted child from the inheritance of the
adopting parents constitutes preterition.
Article 980.
The children of the deceased shall always inherit from him
in their own right, dividing the inheritance in equal shares.
Intestate Share of Children
o Makes no distinction between LC (includes
adopted) and IC
o Whenever LC or IL inherit from their parents,
they do so in their own right.
o Note: their intestate shares are not equal. IC gets half
of the intestate share of a LC.
grandchildren will inherit in their own right as descendants of
their grandfather in the second degree (sabi sa book second
degree, but diba dapat 3rd degree? Own right naman pero as
nearest relatives na? tama ba?)
Art. 982 stretches the RR down to the descendants in
the third and further degrees. However, the application of the
stretched-down RR requires that there should be no break in the
linkage between the descendant exercising the RR, and the
decedent from whom such descendant exercising the RR, and
the decedent from whom such descendant seeks to inherit
(break in linkage= if an intermediate heir repudiates
Article 983.
If illegitimate children survive with legitimate children, the
shares of the former shall be in the proportions prescribed
by article 895.
o Art. 176 FC: the legitime of an IC is half the legitime of
a LC.
o The intestate share of an IC is likewise half the share
of a LC.
Concurrence of Legitimate and Illegitimate Children
Test of Sufficiency of the Estate

COMBINATION OF INTESTATE SHARES

INTESTATE HEIRS
1 LC (or adopted) Entire estate
Article 981. 2 or more LC (and/or Entire state divided equally
adopted)
Should children of the deceased and descendants of other 1 LC (or adopted) and 1/2; 1/2
children who are dead, survive, the former shall inherit in spouse
their own right, and the latter by right of representation. 2 or more LC (and/or Entire estate divided equally
adopted) and spouse
Article 982. Legitimate parents Entire estate divided equally
Legitimate paternal and Entire estate estate divided
The grandchildren and other descendants shall inherit by
maternal ascendants per stirpes
right of representation, and if any one of them should have
Illegitimate parents Entire estate divided equally
died, leaving several heirs, the portion pertaining to him
Spouse Entire estate
shall be divided among the latter in equal portions. Spouse with brothers and 1/2; ½, subject to Art. 1006
Children Concurring with Grandchildren sisters
Brothers, sisters, nephews Entire estate divided equally,
While a child inherits from his or her parents in his or and nieces subject to the right of
her own right, the descendants of a predeceased, incapacitated representation and Article
or disinherited child, as a general rule, inherit from their 1006
grandparents by RR. Collateral Relatives within Entire estate divided eqially
the 5th degree
However, grandchildren can still inherit from their The state Entire estate
grandparents in their own right – if the only child, or if all the
children should repudiate the inheritance of the father, the

Article 984.
In case of the death of an adopted child, leaving no children
or descendants, his parents and relatives by consanguinity
and not by adoption, shall be his legal heirs.
Successional Rights of the Biological Parents
Art. 984 clarifies that in the ascending line the legal
heirs of the adopted child are his biological parents and not the
adopting parents. This rule holds both in testamentary and
intestate succession.
Successional Rights of the Adopting Parents
Art. 190 FC introduced certain modifications to Art. 984
which allowed to a certain extent the adopting parents to inherit
by intestate succession from an adopted child.
Art. 190. Legal or intestate succession to the estate of the
adopted shall be governed by the following rules:
(1) Legitimate and illegitimate children and descendants
and the surviving spouse of the adopted shall inherit from
the adopted, in accordance with the ordinary rules of legal
or intestate succession;
(2) When the parents, legitimate or illegitimate, or the
legitimate ascendants of the adopted concur with the
adopter, they shall divide the entire estate, one-half to be
inherited by the parents or ascendants and the other half,
by the adopters;
(3) When the surviving spouse or the illegitimate children
of the adopted concur with the adopters, they shall divide
the entire estate in equal shares, one-half to be inherited by
the spouse or the illegitimate children of the adopted and
the other half, by the adopters.
(4) When the adopters concur with the illegitimate children
and the surviving spouse of the adopted, they shall divide
the entire estate in equal shares, one-third to be inherited
by the illegitimate children, one-third by the surviving
spouse, and one-third by the adopters;
(5) When only the adopters survive, they shall inherit the
entire estate; and
P a g e | 135
(6) When only collateral blood relatives of the adopted
survive, then the ordinary rules of legal or intestate
succession shall apply.
If the adopted child should execute a will, the law on
testamentary succession will apply. The adopted child may
provide something for the adopting parents either by instituting
either or both of the adopting parents as VH or by giving them a
legacy or decise
In any event, the adopting parents are not CH of the
adopted child. The biological parents retain their stats as the
legal heirs of the adopted child in case the parents are called
upon to succeed.
Adopting parents are not CH hence not entitiled to
legitime and cannot be preterited.
In Art. 190 of the FC, the adopting parents inherit from
the adopted child by intestacy only in 4 specific instances. In 3
instances, the law simply gave the adopting parents the
disposable free portion, after paying the legitime of the CH of
the adopted child.
1. the adopting parents concur with the biological parents of the
adopted child:
o ½ of the estate = legitime of the Biological Parents
(legit or illegit)
o The other ½ is the disposable free portion = adopting
parents
2. Adopting parents concur with the illegitimate children or the
surviving spouse of the adopted child:
o ½ of the estate = legitime of the illegitimate children or
the SS
o ½ of the estate which represents the disposable free
portion = adopting parents
3. Adopting parents concur with the illegitimate children and the
surviving spouse of the adopted child.
o 1/3 of the estate = legitime of the illegitimate children
o 1/3 of the estate = legitime of the SS
o 1/3 = art. 190 awards the remaining 1/3 of the
disposable free portion to the adopting parents
4. no descendants, ascendants, or collateral relatives surviving
the adopted child:
Entire estate = adopting parents (in lieu of the state)

 In par.6 of Article 190, the collateral blood relatives of
the adopted child succeed to the entire estate by
intestacy. In this instance, the adopting parents are
excluded.
 The biological brothers, sisters, nephews and nieces
inherit from the adopted child, or failing them, the other
biological collateral relatives up to the 5th civil degree.
(assuming that the adopted child is a legitimate child of
his biological parents)
 If adopted child was an IC of his biological parents =
only the illegitimate brothers, sisters, nephews and
nieces of the adopted child may inherit.
Ascending Direct Line
Article 985.
In default of legitimate children and descendants of the
deceased, his parents and ascendants shall inherit from
him, to the exclusion of collateral relatives.
Ascendants as Secondary Intestate Heirs
 the legitimate children (adopted included) and other
legitimate descendants are the primary beneficiaries of
the estate of a deceased person.
 Legitimate parents and other legitimate ascendants
inherit from the decedent only in default of LC and
legitimate descendants.
 Legitimate parents & other legitimate ascendants
are excluded ONLY by legitimate children (adopted
included) and legitimate descendants
 ILLEGITIMATE parents are excluded by ANY
descendant (legit or illegit)
 Whenever parents and ascendants inherit, they
exclude all collateral relatives
Article 986.
The father and mother, if living, shall inherit in equal shares.
Should one only of them survive, he or she shall succeed
to the entire estate of the child.
Parents as Sole Intestate Heirs
When there’s neither legitimate or illegitimate children
nor a SS.
Rule on Equal Division
P a g e | 136
o Parents will inherit in equal shares. If both
LIVING, CAPACITATED, and WILLING TO
ACCEPT the inheritance of the child.
o If one of them predeceased, is incapacitated
to inherit from the child or repudiated the
inheritance, the entire estate shall pertain to
the surviving, capacitated and non-
repudiating parent.
o the predeceased or incapacitated parent
cannot be represented by an ascendant
next in degree because RR IS NOT
AVAIABLE IN THE ASCEDNING LINE
(Art.972).
o In case of repudiation, a repudiator cannot
be represented (Art.977).
Article 987.
In default of the father and mother, the ascendants nearest
in degree shall inherit.
Should there be more than one of equal degree
belonging to the same line they shall divide the inheritance
per capita; should they be of different lines but of equal
degree, one-half shall go to the paternal and the other half
to the maternal ascendants. In each line the division shall
be made per capita.
Successional Rights of Other Ascendants
Art. 987 assumes that the decedent has neiher children
nor a SS.
The successional right of other ascendants in Art. 987
is premised upon the default of the father and mother of the
decedent.
Default refers to:
1. both parents have predeceased the child
2. both are incapacitated to inherit from the child
3. both parents have repudiated the inheritance AND
4. both parents have been disinherited by the child and
the disinheriting will contains no other testamentary
dispositions.
Whenever grandparents inherit, they inherit in their own right
and not by RR.
Grandparents inherit per stirpes (ex. By line)
Within a line, the grandparents will divide the inheritance per
capita:
 P a g e | 137

Ex. If both grandparents survive in the paternal and maternal An illegitimate child excludes collateral relatives to
lines who are not disqualified and are willing to accept the inherit such as brothers and sisters of the decedent.
inheritance = estate shall be divided equally between the 2 lines
In this case, between an IC and a legitimate brother of
(1/2 each) and within each line the grandparents shall divide the
the decedent, the IC is preferred to inherit.
inheritance equally (1/4 each).
Article 989.
Only 1 survivor in a line = share of the line pertain to the sole
survivor If, together with illegitimate children, there should survive
descendants of another illegitimate child who is dead, the
No surviving grandparents in one line = other line gets the entire
former shall succeed in their own right and the latter by
inheritance
right of representation.
No surviving grandparents – next degree in the ascending line,
Article 990.
and so forth
The hereditary rights granted by the two preceding articles
to illegitimate children shall be transmitted upon their death
Illegitimate Children to their descendants, who shall inherit by right of
representation from their deceased grandparent.
Article 988.
Right of Representation
In the absence of legitimate descendants or ascendants,
the illegitimate children shall succeed to the entire estate of In the succession to the parents of the predeceased IC,
the deceased. a predeceased IC may be represented by his or her children or
descendants, whether legitimate or illegitimate.
The Illegitimate Children
While Art. 989 specifically refers to the representation
Children conceived outside a valid marriage are
of a predeceased IC, RR is exercisable by children or
illegitimate, except as otherwise provided by Art. 165 of the FC.
descendants in cases of incapacity and disinheritance of an IC.
IC rank 3rd in the order of intestate succession to a
Ex.
legitimate decedent
A - father
2nd in the order of intestate succession to an
illegitimate decedent B, C and D – all legitimate children of A
Illegitimate Children as Concurring Intestate heirs E – Legit son of B
IC may concur with: F – Legit son of C
1. legitimate and adopted children G- Legit son of D
2. legitimate parents
If B predeceased A, and C is incapacitated to inherit from A, and
3. surviving spouse
A disinherited D, the grandchildren E, F and G may exercise the
 Art. 988 therefore is premised on the assumption that
RR.
the decedent died without a surviving legitimate or
adopted child, legitimate parents or other legitimate BUT, if B, C & D collectively repudiate A’s inheritance, E, F and
ascendants, and spouse. G will inherit from A in their own right as second degree
relatives.
IC cannot concur with illegitimate parents. IC excludes the
illegitimate parents. Article 991.
When IC inherit, collateral relatives of the decedent (ex. Legit If legitimate ascendants are left, the illegitimate children
bros and sis) are excluded. shall divide the inheritance with them, taking one-half of the
estate, whatever be the number of the ascendants or of the
DEL PRADO v. SANTOS
illegitimate children.

Illegitimate Children Concurring with Legitimate
Ascendants
The estate shall divide into 2 equal parts:
1. First part shall pertain to the legitimate ascendants who
shall divide the same equally between then (or
otherwise consolidated to the lone surviving ascendant)
2. The other half shall pertain to the illegitimate children
who shall divide the same equally among themselves
(or otherwise to the sole survivor)
Article 992.
An illegitimate child has no right to inherit ab intestato from
the legitimate children and relatives of his father or mother;
nor shall such children or relatives inherit in the same
manner from the illegitimate child.
The Barrier (important)
 Art. 992 created a successional barrier between the
members of the legitimate family and the illegitimate
family.
 Applies to succession ab intestato; succession by
operation of law
 The barrier therefore covers: 1. Intestate succession,
and 2. The right of representation
 Article 992 does not apply and cannot be invoked in
testamentary succession (ex. an illegitimate relative is
instituted as an heir, or given a legacy or devise, by a
relative coming from the legitimate line, and vice versa.)
Reason for the Barrier
VDA. DE CRISOLOGO v. CA
o Being relatives on the legitimate line of the
decedent, they cannot inherit from the
decedent’s illegitimate child.
o Between the illegitimate child and the
legitimate relatives of the father or mother
who acknowledged it, the code denies any
right of succession. They cannot be called
relatives and they have no right to inherit.
Conclusive Presumption of Animosity
o Art. 993 presumes the existence of animosity
between the legitimate and illegitimate
families.
P a g e | 138
o The only way by which succession can flow between
the legitimate and illegitimate ties is through
testamentary succession.
The Barrier Operates Bilaterally
Illegitimate children are barred from inheriting ab
intestato from the legitimate relatives of their parents; the
legitimate relatives are also barred from inheriting ab intestate
from the illegitimate children.
CACHO v. UDAN
The legitimate relatives of the mother cannot succeed
her illegitimate child.
Application of the Barrier in the Collateral Line
1. Conformably with the ruling in Cacho, a legitimate child is
barred from inheriting ab intestate from an illegitimate uncle (ex.
An illegitimate brother of his mother)
CORPUS v. CORPUS
o There’s no reciprocal succession between legitimate
and illegitimate relatives
o Legitimate relatives of the mother cannot succeed her
illegitimate child. By reason of that same rule, the
natural child cannot represent his natural father in the
succession to the estate of the legitimate grandparent.
2. A legitimate child cannot inherit ab intestato from a half-
blood brother in the illegitimate line
MANUEL v. FERRER
o Barrier between the members of the legitimate and
illegitimate family in intestacy
o “iron curtain”
o Just as Art. 992 cuts off the IC from inheriting ab
intestate from the LC and relatives of his father or
mother so does the same barrier not allow the
legitimate children inheriting from the illegitimate family
a. Inquiry into filiation
filiation of a person may be looked into for the purpose
of determining the qualification to inherit from a deceased
person.
LEONARDO v. CA
court found from an examination of the birth certificate
of the petitioner that he was an IC and hence barred by Art. 992
to claim a share in the inheritance of his great-grandmother.
 P a g e | 139

b. the “relatives” covered by the barrier her husband as their own son, reared from infancy,
educated and trained in their business, and eventually
the barrier can produce harsh effects, particularly when
legally adopted by decedent’s husband.
it disqualifies the illegitimate descendants of the decedent and
gives the inheritance to a remote collateral relative in the Article 993.
legitimate line.
If an illegitimate child should die without issue, either
DIAZ v IAC legitimate or illegitimate, his father or mother shall succeed
to his entire estate; and if the child's filiation is duly proved
o The word relative used in the Art. 992 is to be
as to both parents, who are both living, they shall inherit
understood in its broadest sense such that the
from him share and share alike.
disqualification applies not merely to the illegitimate
relatives in the collateral line, but also to the illegitimate Article 994.
relatives in the direct descending line.
In default of the father or mother, an illegitimate child shall
o Despite the grant of successional rights to illegitimate
be succeeded by his or her surviving spouse who shall be
children under the NCC, the IC cannot exercise the
right of representation in order to inherit from their entitled to the entire estate.
grandmother who was the legitimate mother of their If the widow or widower should survive with
predeceased illegitimate father. brothers and sisters, nephews and nieces, she or he shall
inherit one-half of the estate, and the latter the other half.
RESOLUTION OF THE SECOND MOTION FOR
RECONSDERATION Succession to an Illegitimate Child
o While the NCC may have granted successional rights Commentators are in agreement that the succession to
to IC, those articles, however, in conjunction with Art. an IC is governed by the ff. order of preference:
992, prohibit the right of representation from being
exercised where the person to be represented is a LC. 1. legitimate children and their legitimate descendants
o Needless to say, the determining factor is the 2. Illegitimate children and their descendants
legitimacy or illegitimacy of the person to be 3. Illegitimate parents
represented. 4. Surviving spouse
o If the person to be represented is an IC, then his 5. Brothers, sisters, nephews and nieces in the
descendants, whether legitimate or illegitimate, may illegitimate line
represent him; however, if the person to be Concurrence of Intestate Heirs
represented is legitimate, his illegitimate descendants
cannot represent him because the law provides that Concurring Heirs Share
only his legitimate descendants may exercise the RR Legitimate and illegitimate Each IC is entitled to half of
by reason of the barrier imposed in Article 992. children the share of a LC
Legitimate and illegitimate o Each IC is entitled to
c. Rebutting the presumption of animosity children, and the SS half of the share of
LC.
the law is silent as to whether or not the presumption
o The SS gets the
is conclusive or disputable; may commentators of the code same as LC.
believe it is. o In any case, the
SUNTAY III v. COJUANGCO-SUNTAY legitime of the LC
and the SS cannot
o The peculiar circumstance of this case, overthrow the be reduced.
legal presumption in Art. 992 that there exisit animosity Illegitimate parents and the o In the absence of
and antagonism between legitimate and illegitimate SS legitimate or IC, the
descendants of a deceased. illegitimate parents
o In this case, Emilio III, an illegitimate grandchild of the inherit from the
decedent
decedent, was actually treated by the decedent and

o When illegitimate
parents concur with
the SS, the former
are entitled to ½ of
the estate and the
latter the other ½.
o If both illegitimate
parents survive, they
are entitled to equal
shares
Illegitimate brothers and o In the absence of
sisters and the SS legitimate or IC and
illegitimate parents,
the illegitimate
brothers and sisters
inherit from the
decedent.
o When such brothers
and sisters concur
with the SS, the
former are entitled to
½ of the estate and
the latter to the other
½.
Surviving Spouse
Article 995.
In the absence of legitimate descendants and ascendants,
and illegitimate children and their descendants, whether
legitimate or illegitimate, the surviving spouse shall inherit
the entire estate, without prejudice to the rights of brothers
and sisters, nephews and nieces, should there be any,
under article 1001.
Article 996.
If a widow or widower and legitimate children or
descendants are left, the surviving spouse has in the
succession the same share as that of each of the children.
Article 997.
When the widow or widower survives with legitimate
parents or ascendants, the surviving spouse shall be
entitled to one-half of the estate, and the legitimate parents
or ascendants to the other half.
Article 998.
If a widow or widower survives with illegitimate children,
such widow or widower shall be entitled to one-half of the
P a g e | 140
inheritance, and the illegitimate children or their
descendants, whether legitimate or illegitimate, to the other
half.
Article 999.
When the widow or widower survives with legitimate
children or their descendants and illegitimate children or
their descendants, whether legitimate or illegitimate, such
widow or widower shall be entitled to the same share as
that of a legitimate child.
Article 1000.
If legitimate ascendants, the surviving spouse, and
illegitimate children are left, the ascendants shall be
entitled to one-half of the inheritance, and the other half
shall be divided between the surviving spouse and the
illegitimate children so that such widow or widower shall
have one-fourth of the estate, and the illegitimate children
the other fourth.
Article 1001.
Should brothers and sisters or their children survive with
the widow or widower, the latter shall be entitled to one-half
of the inheritance and the brothers and sisters or their
children to the other half.
Article 1002.
In case of a legal separation, if the surviving spouse gave
cause for the separation, he or she shall not have any of the
rights granted in the preceding articles.
The Surviving Spouse as a Concurring intestate Heir
The SS may concur with the ff. heirs of the decedent:
1. Legitimate children and their legitimate descendants
2. Adopted child
3. IC and their descendants, whether legitimate or
illegitimate
4. Leigitmate parents and other legitimate ascednants, or
the illegitimate parents; and
5. Brothers, sisters, nephews and nieces
 The SS excludes only the collateral relatives of the
decedent other than brohers, sisters, nephews and
nieces of the decedent with whom the SS may concur.
Summary of the intestate share of the SS:
Concurring Heirs Share

Spouse alone (Art. 995)
Spouse + Legitimate
children or descendants
(Art. 996)
Spouse + legitimate
parents or ascendants (Art.
997)
Spouse + illegitimate
parents (Art. 993)
Spouse + IC (Art. 998)
Spouse + legitimate and IC
(Art. 999)
Spouse + legitimate
parents or ascendants and
illegitimate children (Art.
1000)
Spouse + brothers and
sisters and/or their
descendants (Art. 1001)
P a g e | 141
Entire estate in their own right) and
Same share as a LC subject further to the
provision of Art.
1006.
½ spouse; ½ illegitimate
parents divided by per capita
between them; or Qualifications to the Successional Rights of the SS
Divided by per stirpes bet. the o The right of the SS to succeed the deceased
paternal and maternal lines in
spouse is premised on 1 important condition:
the case of other legitimate
marriage with the decedent must be
ascendants
o ½ spouse terminated by the death of the latter.
o ½ illegitimate parents o if marriage was void and was so declared in a
divided per capita final judgment, they never became spouses at
between them all.
½ spouse; ½ IC divided o Hence if either of the parties dies subsequent
equally between them to the declaration of nullity of marriage or the
o Spouse gets a share final decree of annulment, the survivor cannot
equal to that of a LC; be construed as the SS.
o IC gets half the share
of LC which shall be Disqualification Resulting from Legal Separation,
taken from the free Declaration of Nullity of Marrige and Annulment of Marriage
portion after payment
See discussion in Art. 892
of the share of the
spouse. SANTILLON v. MIRANDA
o If the estate is not
sufficient to pay the o If the widow or widower and a LC are left, the SS has
full intestate shares the shares as that of the child
of the IC, the balance o Legitimate child concurs with SS; distribution of estate
of the estate after is 50-50.
payment of the share
of the spouse shall Spouse Concurring with Grandchildren
be divided equally
among the IC If the spouse concurs with grandchildren inheriting by
o ½ legitimate parents RR, the intestate share of a spouse must nonetheless be
(divided per capita calculated on the basis of the intestate share of one LC.
bet. them) or
Ex.
o Other legitimate
ascendants (divided Parents predeceased: The intestate share of the SS must be
per stirpes bet. computed as through there was a concurring legitimate child.
paternal and After all, the grandchildren who inherit by RR will merely get that
maternal lines) which would have otherwise pertained to the parents.
o ¼ spouse
o ¼ IC divided equally If parents repudiated: intestate share of the SS must be
between them computed as though the legitimate children did not repudiate the
o ½ spouse inheritance. Hence, the SS should receive her intestate share
o ½ brothers and had the legitimate children not repudiated. And the balance of
sisters, subject to the the estate shall be distributed equally among the legitimate
RR of nephews and
grandchildren who shall inherit in their own right. (illustration:
nieces (without
prejudice to nephews page 816-817 of the book)
and nieces inheriting Collateral Relatives

Article 1003.
If there are no descendants, ascendants, illegitimate
children, or a surviving spouse, the collateral relatives shall
succeed to the entire estate of the deceased in accordance
with the following articles.
Article 1004.
Should the only survivors be brothers and sisters of the full
blood, they shall inherit in equal shares.
Article 1005.
Should brothers and sisters survive together with nephews
and nieces, who are the children of the descendant's
brothers and sisters of the full blood, the former shall
inherit per capita, and the latter per stirpes.
Article 1006.
Should brother and sisters of the full blood survive together
with brothers and sisters of the half blood, the former shall
be entitled to a share double that of the latter.
Article 1007.
In case brothers and sisters of the half blood, some on the
father's and some on the mother's side, are the only
survivors, all shall inherit in equal shares without
distinction as to the origin of the property.
Article 1008.
Children of brothers and sisters of the half blood shall
succeed per capita or per stirpes, in accordance with the
rules laid down for brothers and sisters of the full blood.
Article 1009.
Should there be neither brothers nor sisters nor children of
brothers or sisters, the other collateral relatives shall
succeed to the estate.
The latter shall succeed without distinction of lines
or preference among them by reason of relationship by the
whole blood.
Article 1010.
The right to inherit ab intestato shall not extend beyond the
fifth degree of relationship in the collateral line. (955a)
Classification of Collateral Relatives
2 groups:
P a g e | 142
1. decedent’s brothers and sisters, whether full or half
blood, and their respective descendants (ex. Children
of bros and sis hence decedent’s nephews and nieces)
2. all other collateral relatives w/in the 5th degree of
consanguinity
 brothers and sisters (and in the proper case, the
nephews and nieces) enjoy preference over all other
collateral relatives
 Collateral relatives inherit from the decedent subject to
Art. 992
Collateral Relatives are not Compulsory Heirs
o Not entitled to legtime
o In testamentary succession, they may inherit only as
VH
o In intestate succession, they may, under certain
conditions, inherit as intestate heirs of the decedent.
Collateral Relatives are Excluded by Compulsory Heirs
CR inherit as intestate heirs only in the absence of
legitimate or illegitimate children or descendants, legitimate or
illegitimate parents or ascendants, and the SS.
GR: CR excluded by CH
1 EXP: CR relatives (bros and sis of the decedent, as well as
the children of the former) who may concur with a CH (surviving
spouse): ½ widow; ½ bros and sis or their children
Brothers and Sisters inherit in their own Right
o They inherit in their own right
o In art. 1005, they inherit from the decedent per capita
Full-blood and Half-Blood Relationship
o Full blood gets a share double that of the half-blood.
This only applies to intestate succession.
o If a testator instituted without qualifaction his brothers
and sisters as his heirs, the latter will inherit in equal
shares regardless of their full or half blood rel.
Step Relationship
o Half-blood brothers are reciprocal intestate heirs.
Stepbrothers are not. There is no blood tie between
stepbrothers.
Nephews and Nieces Inherit in their own Right or by
Representation

o RR if they concur with at least 1 brother or sister of the
decedent, otherwise the nephews and nieces will
inherit from the decedent in their own right (Art.975)
o Rule on full and half-blood relationship apply
o The rule in Art. 1006 is carried down to the nephews
and nieces by inference from Art. 1009. Thus, CR other
than bros and sis, inherit w/out distinction of lines and
w/out preference by reason of relationship by the whole
blood
o Note that in intestate succession, RR is granted only to
the children of the brothers and sisters of the decedent.
No other collateral relatives has RR.
Brothers, Sisters, Nephews and Nieces exclude all other
collaterals
This bec in the order of intestate succession:
1. as regards a legitimate decedent, his bros, sis,
nephews and nieces rankd 5th in the order of
succession. All other CRs rank 6th
2. as regards an illegitimate decedent, succession in the
collateral line is limited to the illegitimate brothers,
sisters, nephews and nieces. All other CRs are
excluded.
Summary of the Successional Rights of Brothers, Sisters,
Nephews and Nieces
Example illustration page 821-822.
Successional Rights of Other Collaterals
In the absence of bros, sis, nephews and nieces, the
other CR of the decedent w/in the 5th degree inherit as intestate
heirs.
o Inherit in their own right
o Without the benefit of RR
o Without distinction as to line
o w/out reference to full or half-blood relationship
o w/out considering the source of the property inherited
o BUT always subject to the barrier in Art. 992.
o Also, rule of proximity applies to them
The State
Article 1011.
P a g e | 143
In default of persons entitled to succeed in accordance
with the provisions of the preceding Sections, the State
shall inherit the whole estate.
Article 1012.
In order that the State may take possession of the property
mentioned in the preceding article, the pertinent provisions
of the Rules of Court must be observed.
Article 1013.
After the payment of debts and charges, the personal
property shall be assigned to the municipality or city where
the deceased last resided in the Philippines, and the real
estate to the municipalities or cities, respectively, in which
the same is situated.
If the deceased never resided in the Philippines,
the whole estate shall be assigned to the respective
municipalities or cities where the same is located.
Such estate shall be for the benefit of public
schools, and public charitable institutions and centers, in
such municipalities or cities. The court shall distribute the
estate as the respective needs of each beneficiary may
warrant.
The court, at the instance of an interested party, or
on its own motion, may order the establishment of a
permanent trust, so that only the income from the property
shall be used.
Article 1014.
If a person legally entitled to the estate of the deceased
appears and files a claim thereto with the court within five
years from the date the property was delivered to the State,
such person shall be entitled to the possession of the same,
or if sold, the municipality or city shall be accountable to
him for such part of the proceeds as may not have been
lawfully spent.
The State as an Intestate Heir by Default
o The state inherits as an intestate heir only when a
decedent dies without any surviving relative who is
designated by law to succeed him.
o The state is excluded by any and all of the intestate
heirs designated by law.
o Designation of the state as the last intestate heir is a
matter of necessity
o No qualified blood relatives, state will inherit
 P a g e | 144

Escheat Proceedings o A person who may have legal claim to the estate may
filed a claim with the court w/in 5 years from the date
Escheat – reversion of the property to the State when
the property is delivered to the State.
there is a failure of persons legally qualified to inherit or to claim
o If he is able to prove his entitlement, he may recover
the same.
the estate or as may correspond to his entitlement
o The state enforces its right to inherit by intestacy the
TABULAR SUMMARY OF INTESTATE SHARES
property of a decedent through escheat proceedings.
(and not by traditional methods) Intestate Heir Intestate Share
o The claim of the state as an intestate heir is enforced Legitimate and/ or o Entire estate divided
through a judicial process in which all persons who adopted children and equally among the L
may have an interest in the estate of the deceased may their legitimate and/or A children.
be heard to assert his claim and to prove the legal basis descendants (excluding o LD of a LC may
thereof. the descendants of the exercise RR in cases
o Thus, in Art. 1012, in order that the State may take adopted children of predecease,
incapacity and valid
possession of the estate of the deceased, the pertinent
disinheritance
provisions of the ROC (Rule 91) must be observed.
o ID of a LC are barred
Judgment by art. 992 from
exercising RR
If the court renders judgment in favor of the State, o AC may not be
represented by his or
o The personal property of the deceased = shall be her descendants
assigned to the municipality or city where the deceased Concurring w/ IC and their o IC gets ½ off the
last resided in the Phil descendants share of a LC and/or
o Real property= municipalities or cities where they may AC.
be located o IC’s intestate share
o If the deceased never resided in the Phil = may be reduced if
municipalities or cities where the same may be located the division would
result in the
Beneficiary impairment of the
legitime of the LC
o The estate shall be used for the benefit of the public
and/or AC.
schools and public charitable institutions and centers o A predeceased,
in such municipalities or cities. incapacitated or
o Court shall distribute the estate as the respective disinherited IC may
needs of each beneficiary may warrant, w/out prejudice be represented by
to the discretion of the court to set up a permanent trust his or her
so that only the income from the property may be used. descendants,
o The trust is a convenient vehicle that can be used to whether legit or illegit
allow future claimants to file their respective claims w.in Concurring w/ the SS Estate shall be divided equally
the statutory period of 5 years. among them
o Art. 1013’s designation of the beneficiaries is exclusive, Concurring w/ SS AND LC o SS get same share
Thus, the estate or any part thereof may not be as a LC and/or AC.
awarded to a non-educational institution, or to a private o Each IC shall get half
of the share of a
educational institution, or a private charitable
LC/AC; provided that
foundation. the intestate share of
Reversion of the Estate the IC shall be paid
only after the
intestate share of the
SS has been paid;
 P a g e | 145

o And provided that the the inheritance shall

intestate share if IC be divided bet. the
may be reduced if, surviving ascendants
after the payment of per capita
the intestate share of o The other ½- IC,
the SS, the estate is subject to RR of the
insufficient to pay in grandchildren
full the share of the regardless of
IC illegitimacy
LEGITIMATE PARENTS o Estate divided Concurring w/ SS o Half the estate = SS
or LEGITIMATE equally bet. surviving o Other half = SP (per
ASCENDANTS parents; provided capita) or legitimate
that if there’s only 1 ascendants (per
SP, the entire estate stirpes)
shall be given to the Concurring w/ SS and IC o ½ = LP or in default
survivor. and descendants LA
o No SP = estate shall o ¼- SS
be adjudicated to the o ¼- IC and divide the
ascendants nearest same equally
in degree, dividing ILLEGITIMATE o Entire estate to IC
the estate equally CHILDREN and their who shall divide the
bet. the paternal and DESCENDANTS same equally among
maternal lines; them
o Privded that in each o Subject to RR of the
line the intestate grandchildren
share shall be regardless of
divided per capita; legitimacy
o No surviving Concurring w/ the SS ½ estate – SS
ascendants in one ½- IC and divide the same
line = entire estate equally, subject ti the RR if the
adjusdicated to the grandchildren regardless if
line w. surviving legitimacy
ascendants ILLEGITIMATE PARENTS o Entire estate and
o illegitimate divide equally bet.
ascendants (illegit them
grandparents and o 1 surviving illegit
beyond) do not have parent = entire to the
successional rights survivor
o No RR in the o Illegitimate
ascending line ascendants do not
Concurring w/ IC and their o ½ = legitimate have successional
descendants parents who shall rights
divide the same Concurring w/ the SS o ½ - IP divide equally
equally bet. them or bet. them
otherwise o But if 1 surviving
consolidated in the illegit parent = entire
SP ½ to the survivor
o No SP = legitimate o ½ - SS
ascendants will take
½ estate dividing the SURVIVING SPOUSE o Entire estate
same per stirpes o The rule in Art. 900
BUT within each line (ex. ½, 1/3, ½) is not
 P a g e | 146

applicable to the added or incorporated to that of his co-heirs, co-devisees,

intestate share of the or co-legatees
SS; it relates solely
to his or her legitime Causes of vacancy: (RIP)
Concurring w/ brothers, o ½- SS
1. Repudiation
sisters, nephews and o ½ - bro and sis,
nieces subject to the RR of 2. Incapacity
nephews and nieces. 3. Predeceased
o In appropriate case, 4. Others like non-fulfillment of a suspensive condition,
nephews and nieces nullity of the testamentary disposition
may inherit in their
own right Vacancy in the Inheritance in the Testamentary Succession;
o The successional
rights of bro, sis, Remedies
nephews and nieces 1. Substitution of Heirs
are subect to Art. 992 2. Right of Representation
and 1006 3. Right of Accretion – If accretion fails to fill the vacancy
BROTHERS, SISTERS, o Bro and sis, in testamentary succession, then by default, the vacant
NEPHEWS AND NIECES concurring w/ portion shall be distributed to the heirs under the rules
children of of intestacy.
predeceased or
incapacitated bro or
sis will take the entire Right of Accretion in Testamentary Succession
estate; 1. The testator can prohibit the application of the right of
o Provide that the accretion by expressly prohibiting the same.
children of a 2. It is a right, therefore it can be exercised or not.
predeceased or
incapacitated bro or
Vacancy in the Inheritance in Intestate Succession
sis inherit by RR
o Their successional 1. Unlike in testamentary succession, there is no
rights are subject to substitution of heirs in intestacy.
Art. 992 and 1006 2. Remedies are Right of Representation and Right of
Other Collateral Relatives Entire estate subject to strict Accretion
application of the rule of
proximity and Art. 992 Testacy  Substitution  Right of Representation 
STATE Entire estate
Accretion  Intestacy  Representation  Accretion

CHAPTER 4
Provisions common to Testate and
Intestate Succession
RIGHT OF ACCRETION
Art. 1015.
Accretion is a right by virtue of which, when two or more
persons are called to the same inheritance, devise or
legacy, the part assigned to the one who renounces or
cannot receive his share, or who died before the testator, is
The right of accretion is premised on the theory that the testator
intended to give preference to and reserve exclusively for such
co-heirs, co-legatee, co-devisee a specific portion of the estate.
So, if a vacancy arise, the law presumes that the testator
intended to add or incorporate to the shares of the co-H,L,D that
portion that is left vacant by the predeceased, incapacitated, or
repudiating co-H,L,D, to the exclusion of all other persons.
Art. 1016.
In order that the right of accretion may take place in a
testamentary succession, it shall be necessary:

(1) That two or more persons be called to the same
inheritance, or to the same portion thereof, pro indiviso;
and
(2) That one of the persons thus called die before the
testator, or renounce the inheritance, or be incapacitated to
receive it.
Requisites of Accretion in Testamentary Succession:
1. plurality of subjects: Two or more co-heir, co-legatee,
or co-devisee
2. non-earmarking of the shares: co-ownership exists
3. unity of the object: Such are called to the same
inheritance, devise or legacy
4. There exists a vacancy due to repudiation, incapacity,
or predeceased;
5. at least one co-heir, co-legatee or co devisee is
capacitated to accept and accepts the inheritance
Art. 1017.
The words "one-half for each" or "in equal shares" or any
others which, though designating an aliquot part, do not
identify it by such description as shall make each heir the
exclusive owner of determinate property, shall not exclude
the right of accretion.
In case of money or fungible goods, if the share of each heir
is not earmarked, there shall be a right of accretion
There is no earmarking as long as it cannot be ascertained
which specific property belongs to each heirsm co-legatee, or
co-devisee.
Art. 1018.
In legal succession the share of the person who repudiates
the inheritance shall always accrue to his co-heirs
- Not always true.
- If the repudiator were a CH, accretion does not apply
to the legitime. Legitime must be adjusted and shall not
accrue to his co-heirs.
- This is true if the repudiator is a voluntary heir.
Accretion in Intestacy
- When right of representation is not available, then
accretion shall apply to the intestate share
P a g e | 147
- If the intestate heir repudiates, the repudiator cannot
exercise the right of representation and therefore
excluded from the distribution of the estate.
- If the intestate heir predeceased the decedent, or
otherwise declared incapacitated, his children would
be entitled to exercise the right of representation and
accretion shall not take place.
- The right of representation is superior to the right of
accretion.
Instances right of representation is not available, so right of
accretion shall apply:
1. The predeceased intestate heir is an ascendant or a
collateral relative other than nephew or niece of the
decedent. Right of representation is never available to
the ascendants.
2. When the testate or intestate heir repudiates
3. In intestate succession, an illegitimate child cannot
inherit by right of representation to his father or
mother’s legitimate relatives (disqualification in Art.
992).
Art. 1019
The heirs to whom the portion goes by right of accretion
take it in the same proportion that they inherit.
- The basis of the accretion is the respective shares of
the co-heirs in the DFP
Art. 1020.
The heirs to whom the inheritance accrues shall succeed
to all the rights and obligations which the heir who
renounced or could not receive it would have had.
1. In testamentary succession, a co-heir, co-legatee, or
co-devisee not only acquires the right of the other
person who R, I, P but also acquires the obligation/s
attached to the vacant portion.
Art. 1021.
Among the compulsory heirs the right of accretion shall
take place only when the free portion is left to two or more
of them, or to any one of them and to a stranger.
Should the part repudiated be the legitime, the other co-
heirs shall succeed to it in their own right, and not by the
right of accretion
 P a g e | 148

2. Right of accretion does not apply to the legitime.

Should the part repudiated be the legitime, such shall
Art. 1023. Accretion shall also take place among devisees,
be distributed to the other compulsory heirs.
legatees and usufructuaries under the same conditions
Illustration: established for heirs.
John has a net estate of P210,000. A, B, C and D are 6. Right of accretion applies among devisees, legatees,
compulsory heirs. In the will, A – ½, B – ¼, C and D – 1/8 each.
and usufructuaries. If a testator bequeaths a usufruct
D repudiates. No substitution provided.
to A and B, and B repudiates. A may invoke the right of
3. accretion. Same goes with devisees and legatees.
Institutiiin Legitime FP (2) Accretion 1 + 2 + 3
stiution (1) (3) =
as basis ) 17,500* Art. 1024.
A 105,000 35,000 70,000 14,000 119,000
B 52,500 35,000 17,500 3,500 56,000 Persons not incapacitated by law may succeed by will or ab
C 26,250 35,000 0 35,000 intestato.
D 26,250 - - 0 The provisions relating to incapacity by will are equally
183,750 105,000 87,500 17,500 210,000 applicable to intestate succession.

* 210,000 - (total Legitime + total FP) = 17,500

CAPACITY TO SUCCEED BY WILL OR BY INTESTACY
Computation Accretion:
(70,000 / 87500) * 17,500 = 14,000 - Refers to the fitness to receive inheritance
(17,500/87,500) * 17,500 = 3,500 - Incapacity must be proven by competent evidence by
an heir who challenges the capacity of another heir.
Art. 1022. In testamentary succession, when the right of
accretion does not take place, the vacant portion of the Absolute Incapacity refers to the incapacity of a person to inherit
instituted heirs, if no substitute has been designated, shall from any one or to inherit any property under any circumstance
pass to the legal heirs of the testator, who shall receive it for the duration of such incapacity.
with the same charges and obligations
4. When the accretion cannot take place in testamentary Relative Incapacity refers to the incapacity of a person to
succession, the vacant portion shall pass to the legal succeed a particular decedent or to inherit a particular property.
heirs of the testator
Illustration: Art. 1025.
In order to be capacitated to inherit, the heir, devisee or
A died intestate with a hereditary estate of P100,000. His legatee must be living at the moment the succession opens,
intestate share are (i) his legitimate children B and C, (ii) except in case of representation, when it is proper.
surviving spouse E, (iii) illegitimate children F and G. B
repudiates. A child already conceived at the time of the death of the
Heir Intestacy adjust Total decedent is capable of succeeding provided it be born later
B under the conditions prescribed in article 41.
5.
C 25,000 8,333 33,333 Essential element of capacity to succeed
D 25,000 8,333 33,333
E 12,500 4,167 16,667
G 12,500 4,167 16,667
TOTAL 75,000 25,000 100,000*

GR: the heir is alive, or at least conceived, (Art. 40)1 at the time
of the death of the testator or decedent
XPN: (1) right of representation (Art. 1025)
(2) reserva troncal based on the theory of delayed intestacy
Parish Priest of Roman Catholic Church of Victoria vs.
Rigor
One must be living at the time of the death of the decedent to
inherit from the latter.
Art. 1026.
A testamentary disposition may be made to the State,
provinces, municipal corporations, private corporations,
organizations, or associations for religious, scientific,
cultural, educational, or charitable purposes.
All other corporations or entities may succeed under a will,
unless there is a provision to the contrary in their charter
or the laws of their creation, and always subject to the same
- A juridical person has a right to inherit.
- An entity who neither a natural person nor a juridical
person (organizations or association for religious,
scientific, cultural, educational, or charitable purposes)
may inherit under Article 1026. Ownership of the
inheritance goes to the individual members of the
unincorporated organization.
Art. 1027.
The following are incapable of succeeding:
(1) The priest who heard the confession of the testator
during his last illness, or the minister of the gospel who
extended spiritual aid to him during the same period;
(2) The relatives of such priest or minister of the gospel
within the fourth degree, the church, order, chapter,
community, organization, or institution to which such priest
or minister may belong;
(3) A guardian with respect to testamentary dispositions
given by a ward in his favor before the final accounts of the
guardianship have been approved, even if the testator
should die after the approval thereof; nevertheless, any
provision made by the ward in favor of the guardian when
1
A conceived child, for civil purposes, is deemed born for all
purposes favorable to it provided it is born later. If the fetus
had an intra-uterine life of less than 7 months, it is not deemed
P a g e | 149
the latter is his ascendant, descendant, brother, sister, or
spouse, shall be valid;
(4) Any attesting witness to the execution of a will, the
spouse, parents, or children, or any one claiming under
such witness, spouse, parents, or children;
(5) Any physician, surgeon, nurse, health officer or druggist
who took care of the testator during his last illness;
(6) Individuals, associations and corporations not
permitted by law to inherit.
INCAPACITY BY REASON OF UNDUE INFLUENCE (Art.
1027)
Remember:
a. This applies only to testamentary succession. (by the
used of the word “testator”)
b. The persons enumerated are CONCLUSIVELY
presumed to be incapacitated to inherit in testamentary
succession. Even the testator cannot lift the
presumption.
c. If a compulsory heir falls under Art. 1027, the
disqualification does NOT apply to his legitime.
A. Priest who heard the confession
Requisites:
(i) the priest hear the confession of the testator
(ii) at the time of the confession, the testator was
gravely ill and was cognizant that he could die
If the testator did not die shortly after making the will and had
the time to revoke the disposition in favor of the priest but failed
to do, testator is deemed to have impliedly ratify the
testamentary disposition.
B. Minister of Gospel who extended spiritual aid
C. Relatives of such priest or minister
D. Guardian
- The legal guardians, who are the parents, of the
children are not disqualified to inherit from the latter.
This disqualification applies to judicial guardian.
- “Any provision made by the ward in favor of the
guardian when the latter is his ascendant, descendant,
brother, sister or spouse shall be valid.”
born if its dies within 24hrs after its delivery from the maternal
womb.

- A guardian is incapacitated to inherit from the ward
unless his accounts are finally approved.
- The approval of the accounts terminates the
guardianship and the conclusive presumption.
- Review incapacity Art. 37 – 39
Types of guardians
- Legal guardian- one who is such with respect to the
ward by provision of law. Needs no judicial
appointment.
- Judicial guardian- appointed by the court to represent
an incapacitated person. He may be appointed for the
person or property of the ward, or both.
E. Any attesting witness, his spouse, parents or children
or any one claiming under such witness, spouse,
parent, or children
Article 823 Article 1027
EFFECT
The testamentary disposition is The attesting witness is
declared VOID INCAPACITATED to
inherit from the testator
EXCEPTION
Unless, there are three other None
attesting witness to the will
REASON
To ensure that the witness will The witness exerted undue
not be tempted to give false influence and improper
testimony as to the formalities influence on the testator.
in the execution of the will
Atty Sebastian: The exception in Art 823 (which pertains to the
credibility) does not cure the conclusive incapacity of the
attesting witness to inherit.
F. A physician, surgeon, nurse, health officer or druggist
who took care of the testator during the last illness.
- Should the CH fall under this disqualification, he cannot
be deprived of his legitime.
- But he is barred from any share in the disposable free
portion
- If in the testamentary disposition it is stated that the
testamentary disposition is the payment for the
professional fee, such TD is not considered a gift but
payment of obligation.
P a g e | 150
Art. 1028.
The prohibitions mentioned in article 739, concerning
donations inter vivos shall apply to testamentary
provisions
INCAPACITY BY REASON OF PUBLIC POLICY OR
MORALITY (Art.1028)
Remember: This applies only to testamentary succession
(i) In favor of the mistress or paramour
- No need for prior conviction
- Proven by preponderance of evidence in the probate
proceedings
(ii) In favor of co-conspirators
- Disqualification becomes ineffective from the time the
testator and the co-conspirator are convicted by final
judgment
- NOTE: This disqualification apples to
TESTAMENTARY DISPOSITION only
- NOTE: if the con-conspirators are compulsory heirs,
the disqualification shall not apply to the legitime.
(iii) In favor of a public officer
- This should be made by reason of the public office. So
the unlawful cause must be stated in the will.
Art. 1029.
Should the testator dispose of the whole or part of his
property for prayers and pious works for the benefit of his
soul, in general terms and without specifying its
application, the executor, with the court's approval shall
deliver one-half thereof or its proceeds to the church or
denomination to which the testator may belong, to be used
for such prayers and pious works, and the other half to the
State, for the purposes mentioned in Article 1013.
Art. 1030.
Testamentary provisions in favor of the poor in general,
without designation of particular persons or of any
community, shall be deemed limited to the poor living in the
domicile of the testator at the time of his death, unless it
should clearly appear that his intention was otherwise.

The designation of the persons who are to be considered
as poor and the distribution of the property shall be made
by the person appointed by the testator for the purpose; in
default of such person, by the executor, and should there
be no executor, by the justice of the peace, the mayor, and
the municipal treasurer, who shall decide by a majority of
votes all questions that may arise. In all these cases, the
approval of the Court of First Instance shall be necessary.
The preceding paragraph shall apply when the testator has
disposed of his property in favor of the poor of a definite
locality.
Class Institution
- The testator instituted a specific class of persons or a
specific cause, and another person is entrusted to determination
of the poor and implementation of the testamentary disposition.
- While another person is entrusted to identify the
individuals to benefit from the institution, such delegation of
function does not amount to an abdication of the personal
testamentary power.
Testamentary disposition in favor of the poor
a. To whom
(i) In general without designation of particular
persons (or cause)
b. Where
(i) Without definite locality – poor living in the
domicile of the testator at the time of the death
(ii) Testator provided the locality
Persons to determine to the individual beneficiaries:
1. The person authorized by the testator, or in his default,
2. The executor , or in his default
3. A committee composed of the municipal or city mayor,
municipal or city treasurer and judge of the MTC who
shall decide by a majority votes
Note: While these persons are authorized to accept the
inheritance, they are however not authorized to repudiate the
inheritance. Such rights is vested upon the individual
beneficiaries.
Art. 1031.
P a g e | 151
A testamentary provision in favor of a disqualified person,
even though made under the guise of an onerous contract,
or made through an intermediary, shall be void.
- The circumvention of the law can only be proved by
circumstantial evidence.
Art. 1032.
The following are incapable of succeeding by reason of
unworthiness:
(1) Parents who have abandoned their children or induced
their daughters to lead a corrupt or immoral life, or
attempted against their virtue;
(2) Any person who has been convicted of an attempt
against the life of the testator, his or her spouse,
descendants, or ascendants;
(3) Any person who has accused the testator of a crime for
which the law prescribes imprisonment for six years or
more, if the accusation has been found groundless;
(4) Any heir of full age who, having knowledge of the violent
death of the testator, should fail to report it to an officer of
the law within a month, unless the authorities have already
taken action; this prohibition shall not apply to cases
wherein, according to law, there is no obligation to make an
accusation;
(5) Any person convicted of adultery or concubinage with
the spouse of the testator;
(6) Any person who by fraud, violence, intimidation, or
undue influence should cause the testator to make a will or
to change one already made;
(7) Any person who by the same means prevents another
from making a will, or from revoking one already made, or
who supplants, conceals, or alters the latter's will;
(8) Any person who falsifies or forges a supposed will of
the decedent.
Art. 1032 INCAPACITY BY REASON OF UNWORTHINESS
Remember:

a. This applies to both testamentary and intestate
succession
b. Effect: the offender, whether a compulsory heir or
voluntary heir, is disqualified to inherit anything from
the decedent whether testate or intestate succession.
Unworthiness deprives the heir even of his legitime.
c. These are common causes (par 1,2,3,5,6) to
disinheritance. So, if the testator failed to disinherit the
offender, the law intervenes by excluding the offender
from the inheritance of the testator of the decedent by
reason of unworthiness.
d. If the testator chose to disinherit the offeding heir, it is
presumed that the father submits to the provisions of
Art. 992 that prescribes reconciliation as the mode of
restoring the successional right of the disinherited son.
e. On the other hand, if the testator chose not to disinherit
the son, it is presumed he submits to the provisions of
Art. 033 that prescribed condonation as the mode of
restoring the succession right of the unworthy heir.
f. This incapacity is relative meaning the person is
incapacitated to succeed to a particular decedent or to
inherit a particular property.
A. Person who have abandoned their children or induced
their daughters to lead a corrupt or immoral life, or
attempted against their virtues
- As a cause of unworthiness, abandonment of children
is essentially the complete neglect of parental duties.
No criminal abandonment is required.
- The inducement must be proved by positive acts
committed by the unworthy parent.
B. Any person who has been convicted of an attempt
against the life of the testator, his or her spouse,
descendants or ascendants
- The offender must be convicted by final judgment of
such attempt
Instance when the heir is not incapacitated to inherit from the
testator or decedent:
(i) If the heir is acquitted for any reason, including
without limitation, reasonable doubt;
(ii) If the charge against the heir is dismissed due to
failure to prosecute
(iii) If the charge against he heir is dismissed on
ground of prescription; or
P a g e | 152
(iv) If the heir dies before judgment is rendered by the
court, even if there is strong evidence pointing to
his or her guilt
C. Any person who has accused the testator of a crime for
which the law prescribes imprisonment for six years or
more, if the accusation is found groundless
- Giving testimony against the testator falls is included.
To be a false accusation, the testator must be acquitted
of the crime charged on the basis of a positive finding
of innocence
D. Any heir of full age who, having knowledge of the
violent death of the testator, should fail to report it to
an officer of the law within a month, unless the
authorities have already taken action; this prohibition
shall not apply to cases wherein, according to law,
there is no obligation to make an accusation;
- Irrelevant because there is no law up to date imposing
such obligation
Paragraphs 6, 7, and 8 refers to acts committed by the offender
in violation of the testamentary privileges of the testator.
Art. 1033.
The cause of unworthiness shall be without effect if the
testator had knowledge thereof at the time he made the will,
or if, having known of them subsequently, he should
condone them in writing.
Condonation
1. Express – written condonation
Requisites
(a) At the time of the execution of the will, testator was
unaware of the fact which render the offender
incapable of succeeding

(b) Upon knowing, testator condoned the act in writing. It
must refer to the specific antecedent act 2 of
unworthiness
(c) Must be signed by the testator
(d) The condonation must be made subsequent to the
commission of the offense
In general, express condonation is unconditional, irrevocable,
and immediately effective. An express condonation may,
however, be revoked by the testator if the testator’s consent
thereto was vitiated by mistake, fraud, violence, intimidation or
undue influence.
2. Implied – execution by the offended party of a will with
knowledge of the cause of unworthiness
Requisites:
(a) The testator must have knowledge of the facts which
render the offender incapacitated to succeed him
(b) The testator nonetheless executes a will and makes a
provision in favor of the offender
(c) The will is admitted to probate
Effect of an effective condonation:
The unworthy heir is restored to full successional rights.
Art. 1034.
In order to judge the capacity of the heir, devisee or
legatee, his qualification at the time of the death of the
decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall
be necessary to wait until final judgment is rendered, and
in the case falling under No. 4, the expiration of the month
allowed for the report.
If the institution, devise or legacy should be conditional, the
time of the compliance with the condition shall also be
considered
Determination of capacity
GR: at the time of the death of the decedent
XPN:
2
A general condonation is insufficient. The commission of a
subsequent offense after condonation is not covered by the
condonation.
P a g e | 153
(1) In case of attempt on the life and adultery or
concubinage – at the time of the final judgment of the
conviction or of the unworthy heir
(2) In case of false accusation - at the time of the final
judgment of the acquittal of the testator
(3) In case of TD subject to suspensive condition – at the
time of the death of the testator AND at the time of the
fulfillment of the condition
Art. 1035.
If the person excluded from the inheritance by reason of
incapacity should be a child or descendant of the decedent
and should have children or descendants, the latter shall
acquire his right to the legitime.
The person so excluded shall not enjoy the usufruct and
administration of the property thus inherited by his
children.
Representation of the Incapacitated Heir
- The children or descendants of the incapacitated heir
may represent the latter and acquire his right to the legitime (in
testacy) or intestate share (in intestacy)
- NOTE: If the representative is a minor and the
represented incapacitated heir is the parent of such minor, the
latter shall not enjoy usufruct of the property received by the
unemancipated children, nor shall he/she be entitled to exercise
the powers of administration of the property
Remember:
a. In testacy, representation is available only to the direct
descendants. The representation covers only the
legitime of the incapacitated heir.
b. In intestacy, representation is available to nephew and
nieces of decedent.
c. The representatives must be capacitated to inherit from
the testator.
d. Art. 992: if the representatives are illegitimate children
of the incapacitated heir, the former cannot inherit from
the legitimate relatives of the latter. Vice versa
Art. 1036.

Alienations of hereditary property, and acts of
administration performed by the excluded heir, before the
judicial order of exclusion, are valid as to the third persons
who acted in good faith; but the co-heirs shall have a right
to recover damages from the disqualified heir.
Example: A son took possession of a property forming part of
the inheritance of his father who dies intestate. Before
settlement proceedings could be initiated, the son executed a
lease over the same and collected rents. The son was
subsequently declared incapacitated to inherit from his father.
Effects: (a) the lessee cannot be evicted from the property
(b) The incapacitated heir shall be held liable for any income
received and for any consequential damages (unrealized
profit) that might have been caused to the true heirs of the
decedent.
Art. 1037.
The unworthy heir who is excluded from the succession
has a right to demand indemnity or any expenses incurred
in the preservation of the hereditary property, and to
enforce such credits as he may have against the estate.
- This follows the rule on reimbursements due to a
possessor. An incapacitated heir who incurred
expenses necessary for the preservation of the
hereditary property is entitled to reimbursement.
- The incapacitated heir is not precluded from recovering
a claim which he may have against the estate of the
deceased.
Art. 1038.
Any person incapable of succession, who, disregarding the
prohibition stated in the preceding articles, entered into the
possession of the hereditary property, shall be obliged to
return it together it its accessions.
He shall be liable for all the fruits and rents he may have
received, or could have received through the exercise of
due diligence.
3
Atty. Sebastian: The law is speculative as to the
consequential damages.
P a g e | 154
- Art. 1038 par 1 speaks of actual damages. If an
incapacitated heir disregards the prohibition and
entered into possession of the hereditary property shall
be obliged to return possession of the property
together with its accessions.
- Art. 1038 par 2 speaks of consequential damages. 3
Incapacitated heir shall also be liable for the fruits and
rents he may received or could have received through
the exercise of due diligence.
Art. 1039.
Capacity to succeed is governed by the law of the nation of
the decedent. (n)
National law of the deceased person governs:
(a) the order of succession
(b) the amount of successional rights
(c) the intrinsic validity of the disposition, (Art. 16) and
(d) the capacity of the heirs to succeed (Art. 1039).
Art. 1040.
The action for a declaration of incapacity and for the
recovery of the inheritance, devise or legacy shall be
brought within five years from the time the disqualified
person took possession thereof. It may be brought by any
one who may have an interest in the succession.
Prescriptive period: 5 years fro, the time the disqualified person
took possession thereof.
Proper Parties:
(1) in case of the designation of the incapacitated person
is subject to substitution, the appointed substitute may
bring the action
(2) If the incapacitated person is a child or descendant of
the deceased, the children and descendants of such
incapacitated person who are entitled to exercise the
right of representation may bring the action.

(3) In intestate succession, if the incapacitated person is a
brother or sister of the decedent who succeeds with
other brother or sister, the children of the incapacitated
person are accorded the right of representation may
bring the action
(4) If there is no substitution, right of representation, or
right of accretion, then the intestate heirs shall bring the
action, subject to the order of intestate succession
(5) During the proceedings for the settlement of the estate
of the deceased person, the administrator, in case of
intestacy, or the executor, in the case of testacy, may
prior to the termination of the settlement proceeding,
bring an action to recover the property unlawfully taken
by the incapacitated person.
Alienation of Property Wrongfully Taken
If the transferee acted in good faith, Art. 1036 will apply thus he
is fully protected by the law. His acquisition of the property will
be respected.
If the transferee acted in bad faith, he may be impleaded as a
co-defendant with the incapacitated person in the action for the
recovery of the hereditary property.
Acceptance and Repudiation by inheritance
Acceptance confirms the transmission of the inheritance at the
time of the death of the decedent.
Art. 1041.
The acceptance or repudiation of the inheritance is an act
which is purely voluntary and free.
- No person may be compelled to accept or to reject an
economic benefit against his will.
- Consent must be free, intelligent and spontaneous.
The Civil Code enumerates five vices of consent:
mistake, violence, intimidation, undue influence and
fraud.
GR: The acceptance and repudiation of an inheritance is a
voluntary acts of the heir.
XPN: Art. 1052 If the heir repudiates the inheritance to the
prejudice of his creditors, the latter may petition the court to
authorize them to accept in the name of the heir.
P a g e | 155
The creditor shall benefit only to an extent sufficient to cover the
credits.
Any excess thereto shall be adjudicated to the persons to whom
it may belong. (Rules in filling vacancy shall apply.)
Art. 1042.
The effect of the acceptance or repudiation shall always
retroact to the moment of the death of the decedent.
Retroactive effect of Acceptance and Repudiation
- Upon acceptance of the inheritance, the heirs,
legatees, and devisees become co-owners of the
hereditary estate retrospectively to the date of the
death of the decedent.
- The rights to succession are transmitted from the
moment of the death of the decedent. However, the
effectivity of the transmission of the inheritance is put
in a temporary state of suspense until the appropriate
time for the heir, legatee, or devisee to accept or
repudiate the same.
Art. 1043.
No person may accept or repudiate an inheritance unless
he is certain of the death of the person from whom he is to
inherit, and of his right to the inheritance.
GR: Before an heir accepts of repudiates, the (i) death of the
decedent must be certain and (i) the right of the acceptor or
repudiator to succeed the decedent must be confirmed.
XPN: Presumptive death
The certainty of the right of a testamentary heir to the
inheritance can only be confirmed when
(i) The will is admitted to probate in a final order
of the probate court;
(ii) The taxes, the claims against the estate, and
expenses of administration have been paid;
(iii) The validity of the testamentary disposition is
not challenged; and
(iv) The project of partition is approved by the
probate court.
In intestate succession, a relative must ascertain that he or she
is called to succeed in accordance with the order of intestate
succession. An acceptance or repudiation of the inheritance
prior thereto is ineffective because it is premature.

Art. 1044.
Any person having the free disposal of his property may
accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons
may be accepted by their parents or guardians. Parents or
guardians may repudiate the inheritance left to their wards
only by judicial authorization.
The right to accept an inheritance left to the poor shall
belong to the persons designated by the testator to
determine the beneficiaries and distribute the property, or
in their default, to those mentioned in Article 1030.
Capacity to Accept or Repudiate an inheritance requires that the
acceptor or repudiator must possess free disposal of the
property
Minors or other Incapacitated Person
GR: The parents may accept the inheritance in behalf of his
minor child or incapacitated persons without prior judicial
obligation.
XPN: If the inheritance is burdened with an obligation which the
minor or incapacitated person is obliged to perform, the parents
need to obtain judicial authorization prior to acceptance
Guy vs. Court of Appeals
- Parents and guardian may not repudiate the
inheritance of wards without judicial approval. This is
because repudiation amounts to an alienation of
property which must pass the court’s scrutiny in order
to protect the interest of the ward.
- Parents have no right to waive successional rights due
to their minor children
Acceptance of an Inheritance Left to the Poor in General
The inheritance may be accepted by:
(1) The person designated by the testator
(2) In default, the executor, or
(3) In default, a committee composed of city or municipal
mayor, city or municipal treasurer, and the judge.
4
Trivia: in case inheritance in favor of the National Musuem of
the PH, the cultural Center of the PH, or the National Library,
P a g e | 156
Art. 1045.
The lawful representatives of corporations, associations,
institutions and entities qualified to acquire property may
accept any inheritance left to the latter, but in order to
repudiate it, the approval of the court shall be necessary.
(993a)
The power to accept an inheritance left by a testator to a
corporation is vested in its board of directors or board of
trustees. A resolution duly adopted by the BoD/T accepting an
inheritance is sufficient.
The repudiation of an inheritance given to a juridical entity
required judicial approval.
In case of unicorporated associations, the acceptance may be
made upon execution of a special power of attorney in favor of
a representative.
Repudiation of the inheritance would require the individual act
of such members.
Art. 1046.
Public official establishments can neither accept nor
repudiate an inheritance without the approval of the
government.
Public official establishments like the national museum, public
library, and a center for arts and culture are not juridical persons.
Hence, inheritance left to such may be accepted through the
agency or department of the government to which they are
attached.4
Art. 1047.
A married woman of age may repudiate an inheritance
without the consent of her husband.
- The consent of the husband is not necessary in order
that a wife may repudiate an inheritance.
the National commission for Culture and the Arts may accept
or repudiate such. (RA 9155)

- Inheritance if accepted will not form part of the
community property5 or conjugal property6.
Art. 1048.
Deaf-mutes who can read and write may accept or repudiate
the inheritance personally or through an agent. Should they
not be able to read and write, the inheritance shall be
accepted by their guardians. These guardians may
repudiate the same with judicial approval.
- Deaf-mutes who can read and write may accept or
repudiate the inheritance personally OR through an
agent.
- Deaf-mutes who are illiterate are deemed
incapacitated and may thus accept an inheritance only
through their guardians. These guardians may
repudiate the same with judicial approval.
Art. 1049.
Acceptance may be express or tacit.
An express acceptance must be made in a public or private
document.
A tacit acceptance is one resulting from acts by which the
intention to accept is necessarily implied, or which one
would have no right to do except in the capacity of an heir.
Acts of mere preservation or provisional administration do
not imply an acceptance of the inheritance if, through such
acts, the title or capacity of an heir has not been assumed.
Express acceptance
- must be in writing
- may be in the form of a public or private instrument.
Ex. Affidavit of self-adjudication, deed of extrajudicial
partition, a notarized deed of partition submitted for
court approval
5
“The ff shall be excluded from the community property: (1)
property acquired during the marriage by gratuitous title x x x,
unless it is expressly provided by the donor”
6
“The ff shall be the exclusive property of each
spouse: xxx
P a g e | 157
Tacit acceptance results from
(a) the acts of a person by which his intention to accept
the inheritance is implied, or
Ex. a legatee tacitly accepted the legacy in c ash if he
used the same to purchase a house
(b) acts which a person would have no right to do unless
he accepted the inheritance.
Ex. if the legatee deposited the money to his personal
bank account by which he entered into an indirect
contract of loan with the bank
Art. 1050.
An inheritance is deemed accepted:
(1) If the heirs sells, donates, or assigns his right to a
stranger, or to his co-heirs, or to any of them;
(2) If the heir renounces the same, even though
gratuitously, for the benefit of one or more of his co-heirs;
(3) If he renounces it for a price in favor of all his co-heirs
indiscriminately; but if this renunciation should be
gratuitous, and the co-heirs in whose favor it is made are
those upon whom the portion renounced should devolve by
virtue of accretion, the inheritance shall not be deemed as
accepted.
Art. 1050. Is not an exclusive enumeration of tacit acceptance.
If an heir repudiates an inheritance in favor of a specified co-heir
or co-heirs, he is deemed to have donated the inheritance in
favor of the latter. Accordingly, he is deemd to have accepted
the inheritance, otherwise he could not have donated the same
to the specified co-heir or co-heirs.
If an heir repudiates an inheritance in general terms without
designating a specific person or persons in whose favor the
renounces the inheritance, the presumption of acceptance does
not arise.
(2) that which wach acquires during the marriage by
gratuitous title”
 P a g e | 158

Art. 1051. representation. This applies to both testamentary and

The repudiation of an inheritance shall be made in a public intestate succession.
or authentic instrument, or by petition presented to the - In disinheritance, the testator deliberately excludes a CH
court having jurisdiction over the testamentary or intestate from the inheritance because the latter committed a grave
proceedings. offense against him. The heir is totally excluded from the
inheritance of the testator. The descendants of the
Repudiation in a Public or Authentic Document disinherited heir may exercise the right of representation,
- a public instrument is a notarized documents. subject to Art. 992.
- An authentic instrument, or an instrument whose - In preterition, a CH in the direct line is totally excluded
genuineness is accepted by the parties concerned, or (unintentionally by the testator) from the inheritance by
an instrument whose authenticity is duly approved. receiving nothing by way of donation inter vivos, in the will
and intestacy.
Repudiation by Petition
- By filing a petition for repudiation of inheritance before Repudiation Disinheritance Preterition
the relevant probate or intestate court Extent of Exclusion
Generally, total, Total Total. Where it is
Rational for the Difference in the form of Accepting and except as partial, the
Repudiating provided in Art. remedy is
- Acceptance is nothing more than a confirmation of the 954, 955, 1055 completion of
transmission of the hereditary estate from the decedent legitime under
to the heirs. Art. 906
- Repudiation bars the transmission of the inheritance Right of Representation
which would have otherwise occurred. Not available Available in the None. The
- The repudiation could have a material adverse effect descending line but preterited heir is
on the patrimony of the repudiation heir. So, the law only with respect to entitled to full
does not presume that repudiation can be implied from the legitime of the recovery.
the acts and omission of the heir. disinherited heir,
- Repudiation triggers the application of a number of subject to the
statutory solutions that are intended to fill the vacancy. provision of Art. 992
It is inappropriate to permit the re-alignment o the rights Recovery
on the basis of a mere presumption of repudiation by None. Through right of Art. 906
one or some of the heirs. representation
Application
Repudiation vs. Disinheritance vs. Preterition T and IT T only T only
*with respect to compulsory heirs because disinheritance and
preterition are irrelevant to voluntary heirs.
Art. 1052.
- They have a common effect of excluding the compulsory If the heir repudiates the inheritance to the prejudice of his
heir from the inheritance. own creditors, the latter may petition the court to authorize
- They differ in the casues of the exclusion. In repudiation, them to accept it in the name of the heir.
a CH deliberately and voluntary excludes himself from the
inheritance by rejecting that which he is entitled to receive. The acceptance shall benefit the creditors only to an extent
As a result, the repudiation heir is excluded from the sufficient to cover the amount of their credits. The excess,
inheritance. None of his descendants may exercise right of should there be any, shall in no case pertain to the
renouncer, but shall be adjudicated to the persons to

whom, in accordance with the rules established in this
Code, it may belong.
Requisites for the acceptance of the creditor on behalf of the
repudiator:
(a) The creditor has a valid and lawful claim against the
repudiator.
(b) Succession has opened. (upon death of the testator)
(c) The successional rights of the repudiator must have
been duly established. (the will is admitted to probate,
taxes and other liabilities are paid and the capacity to
inherit is confirmed)
(d) The repudiator must have the free disposal of his
property.
(e) The repudiated inheritance must have not been
distributed with finality.
(f) The creditor must prove that the repudiation of the
inheritance caused him damage.
(g) The recovery of the creditor is limited to the amount of
his claim.
Leviste vs. CA
The petitioner, who is counsel of Rosa, is not a creditor of Rosa.
The payement of his fees is contingent and dependent upon the
successful probate of the will. Since the petition is dismissed,
the contingency did not occur. Leviste is not entitled to his fees.
Prevention theory
Act of deliberately prevening the happening of the condition is
deemed constructive fulfilment.
Explanation
- (b) There is no inheritance which a debtor can
repudiate (and which the creditor may accept) prior to
the death of the person or testator as to whom the
debtor is a presumptive heir.
- (c) The successional right of the repudiator is
confirmed when the will is admitted to probate in case
of testamentary succession, and when the liabilities
have been paid, the heirs have been identified, and the
capacity to repudiate is confirmed in case of intestate
succession.
- (d) the repudiator must be a fully capacitated person
and is subject to no legal constraint in disposing his
property.
P a g e | 159
The creditor shall benefit only to an extent sufficient to cover the
credits.
Any excess thereto shall be adjudicated to the persons to whom
it may belong. (Rules in filling vacancy shall apply.)
Art. 1053
If the heir should die without having accepted or repudiated
the inheritance, his right shall be transmitted to his heirs.
ABC
C can accept both. C can accept inheritance of B but repudiate
that of A. If C repudiates the inheritance of B, he gets nothing.
Art. 1054.
Should there be several heirs called to the inheritance,
some of them may accept and the others may repudiate it.
The acceptance or repudiation of an inheritance is a free and
voluntary act, the plurality or heirs does not require the collective
acceptance or repudiation of the inheritance.
Art. 1055.
If a person, who is called to the same inheritance as an heir
by will and ab intestato, repudiates the inheritance in his
capacity as a testamentary heir, he is understood to have
repudiated it in both capacities.
Should he repudiate it as an intestate heir, without
knowledge of his being a testamentary heir, he may still
accept it in the latter capacity.
Drag-along Repudation
GR: The rule is he who repudiate an inheritance based on the
express will of the testator is deemed to have repudiated an
inheritance based on the presumed will of the decedent.
XPN: If an intestate heir repudiates his share of the hereditary
estate without knowledge of his institution as a testamentary
heir, he may accept his testamentary share. In other words, he
who repudiates an inheritance based on the presumed will of
the decedent is not precluded from accepting an inheritance
based on the express will of the testator.

Art. 1056.
The acceptance or repudiation of an inheritance, once
made, is irrevocable, and cannot be impugned, except
when it was made through any of the causes that vitiate
consent, or when an unknown will appears.
GR: The acceptance or repudiation once made is irrevocable.
XPN:
(1)When it is made though any causes of vitiated consent, or
(2) when the unknown will appears.
- After accepting or repudiating an inheritance as the nearest
collateral relative, the will was discovered and admitted to
probate. Such acceptance or repudiation is without effect.
Art. 1057.
Within thirty days after the court has issued an order for the
distribution of the estate in accordance with the Rules of
Court, the heirs, devisees and legatees shall signify to the
court having jurisdiction whether they accept or repudiate
the inheritance.
If they do not do so within that time, they are deemed to
have accepted the inheritance.
Under Art. 1057, the heirs, devisees and legatees are obliged to
signify their acceptance or repudiation within 3o days after the
court has issued the order of the distribution of the estate. If they
do not do so, they are deemed to have accepted the inheritance.
This aims to eliminate the long period of uncertainty as regards
the acceptance or repudiation of the inheritance.
Executors and Administrators
Art. 1058.
All matters relating to the appointment, powers and duties
of executors and administrators and concerning the
administration of estates of deceased persons shall be
governed by the Rules of Court.
Qualifications of Executors and Administrators
Rule 78 Section 1. No person is competent to serve as executor
or administrator who:
P a g e | 160
(a) Is a minir
(b) Is not a resident of the Philippines, and
(c) Is in the opinion of the court unfir to execute the duties
of the trust by reason of drunkenness, improvidence,
or want of understanding or integrity, or by reason of
conviction of an offense involving moral turpitude
Section 3. A married woman may serve as executrix or
administratrix, and the marriage of a single woman shall not
affect her authority to serve a previous appointment.
Definition of Terms
An executor is a person nominated by a testator to carry out the
directions in his will and dispose of his property according to the
will after his death. He derives his authority primarily from the
will.
An administrator is one appointed by a court to administer an
intestate estate. His power is derived solely from his
appointment.
A special administrator is a representative of the decedent
who has been appointed by the probate court to take care for
and preserve the decedent’s estate until an executor or general
administrator is appointed.
Nature of Office of Executor and Adminstrator
They occupy a position of the highest trust and confidence. He
is required to exercise reasonable diligence and act in entire
good faith in the performance of that trust.
Bond Required
The ability to give bond is on the nature of a qualification for the
office. The execution and approval of the bond constitute a
condition precedent to acceptance of the responsibilities.
Discretion o the Court in Apponting an Executor
Generally, no discretion is vested in the courts to refuse letters
testamentary to the executor named in a will, unless the court in
its opinion sees the appointed executor unfit to exercise the
duties of the trust (Rule 78 Section 1 par. c)
Republic v. Marcos II and Imelda Marcos
The burden of proof lies to the petitioner to substantiate the
grounds upon which it claims that respondents should be

disqualified to serve as executors. Also, the Court notes that
“failure to file an income tax return” is not a crime involving moral
turpitude thus cannot serve as a ground for disqualification. The
filing of a “fraudulent return with intent to evade tax” is a crime
involving moral turpitude as it entails willfulness and fraudulent
intent on the part of the individual.
Appointment of Executor
After a will is admitted to probate, the court shall issue
testamentary to the person named as executor in the will,
provided that such person possesses the qualifications and
none of the disqualifications. Hence, even if the order of probate
is on appeal, it is the duty of the court to issue the letters
testamentary to the named executor if all the foregoing
requisites are present.
Rule 78 Section 5
As a general rule, several co-executors are in law only one
representing the testator, and the acts done by one in reference
to the administration of the testator’s assets are deemed the
acts of all. Thus an agreement between co-executors or co-
administrators that one of them shall along manage the estate
is void.
Section 6. Instances when letters of administration shall be
granted:
(1) If the decedent died intestate;
(2) If there is no executor named in a will;
(3) If the executor is, or all the executors are, incompetent;
(4) If the executor dies, or all the executor refuse, the trust;
and
(5) If the executor refuses, or all the executor refuse, to
give bond
Instances when the court shall issue letters of administration to
the ff:
(a) To the surviving husband or wife, as the case may
be, or next of kin, or both, in the discretion of the
court, or to such person as such surviving husband
or wife, or next of kin, requests to have appointed, if
competent and willing to serve;
(b) If such surviving husband or wife, as the case may
be, or next of kin, or the person selected by them, be
P a g e | 161
incompetent or unwilling, or if the husband or widow,
or next of kin, neglects for thirty (30) days after the
death of the person to apply for administration or to
request that administration be granted to some other
person, it may be granted to one or more of the
principal creditors, if may be granted to one or more
of the principal creditors, if competent and willing to
serve;
(c) If there is no such creditor competent and willing to
serve, it may be granted to such other person as the
court may select.
Next of kin
Persons who are entitled under the statute of distribution to the
decedent’s property. The nearest of kin whose interest in the
estate is more preponderant is preferred in the choice of
administrator.
Creditors
One or more creditors of the deceased may be appointed
administrator:
(a) If the suriving husband or wife, or next of kin, or the
person selected by them, is incompetent or unwilling
to serve; or
(b) If the surviving husband or wife, or next to kin neglect
to apply for administration, or neglect to request that
administration be granted to some other person,
within thirty days after the decedent’s death; and
(c) Such principal creditor/s are competent and willing to
serve.
Strangers
If there is no creditor competent and willing to serve, letters of
administration may be granted to such other person or persons
as the court may select.
Opposition to Petition for Administration
Rule 79 Section 4. Opposition to petition for administration. —
Any interested person may, by filing a written opposition, contest
the petition on the ground of the incompetency of the person for
whom letters are prayed therein, or on the ground of the
contestant's own right to the administration, and may pray that

letters issue to himself, or to any competent person or person
named in the opposition.
Section 5. Hearing and order for letters to issue. — At the
hearing of the petition, it must first be shown that notice has
been given as hereinabove required, and thereafter the court
shall hear the proofs of the parties in support of their respective
allegations, and if satisfied that the decedent left no will, or that
there is no competent and willing executor, it shall order the
issuance of letters of administration to the party best entitled
thereto.
Section 6. When letters of administration granted to any
applicant. — Letters of administration may be granted to any
qualified applicant, though it appears that there are other
competent persons having better right to the administration, if
such persons fail to appear when notified and claim the issuance
of letters to themselves.
Interested party
An interested party is the one who would be benefited by the
estate, such as an heir or a creditor. The interest of such party
must be material and direct, and not indirect or contingent.
Appointment of Special Administratiors
- Lies within the discretion of the probate court
- Rules 80 does not say who is to be appointed and the
qualification he must have
Powers of Special Administrators
Rule 80 Section 2. Powers and duties of special adminsitrator.
— Such special administrator shall take possession and charge
of the goods, chattels, rights, credits, and estate of the deceased
and preserve the same for the executors or administrator
afterwards appointed, and for that purpose may commence and
maintain suits as administrator. He may sell only such
perishable and other property as the court orders sold. A special
administrator shall not be liable to pay any debts of the
deceased unless so ordered by the court.
Section 3. When powers of special administrator
cease. Transfer of effects. Pending suits. — When letters
testamentary or of administration are granted on the estate of
P a g e | 162
the deceased, the powers of the special administrator shall
cease, and he shall forthwith deliver to the executor or
administrator the goods, chattels, money, and estate of the
deceased in his hands. The executor or administrator may
prosecute to final judgment suits commenced by such special
administrator.
Bonds
The administration bond is for the benefit of the creditors and
their heirs as it compels the administrator to perform the
trustreposed in him. Its purpose is to safeguard the properties of
the decedent, therefore the bond should not considered as part
of the necessary expenses chargeable against the estate, not
being uncluded among the acts constituting the care,
management and settlement of the estate.
- The probate court is empowered to fix the amount of
the administration bond.
- The term of the bond does not expire until the
administration has been closed and terminated,
Section 4. Bond of special administrator. — A special
administrator before entering upon the duties of his trust
shall give a bond, in such sum as the court directs, conditioned
that he will make and return a true inventory of the goods,
chattels, rights, credits, and estate of the deceased which come
to his possession or knowledge, and that he will truly account
for such as are received by him when required by the court, and
will deliver the same to the person appointed executor or
administrator, or to such other person as may be authorized to
receive them.
Inventory and Appraisal
Rule 83 Section 1. Inventory and appraisal to be returned within
three months. — Within three (3) months after his appointment
every executor or administrator shall return to the court a true
inventory and appraisal of all real and personal estate of the
deceased which has come into his possession or knowledge. In
the appraisement of such estate, the court may order one or
more of the inheritance tax appraisers to give his or their
assistance.
Section 2. Certain article not to be inventoried. — The wearing
apparel of the surviving husband or wife and minor children., the
marriage bed and bedding, and such provisions and other

articles as will necessarily be consumed in the substinence of
the family of the deceased, under the direction of the court, shall
not be considered as assets, nor administered as such, and
shall not be included in the inventory.
Court’s Power to Include or Exclude Assets
As a general rule, the question as to the title to property cannot
be passed upon in testate or intestate proceedings, except
where on og the parties prays merely for its inclusion or
exclusion from the inventory, in which case the probate court
may pass upon the question without prejudice to its final
determination in a separate action.
Allowance to Widow and Family
Rule 83 Section 3. Allowance to widow and family. — The
widow and minor or incapacitated children of a deceased
person, during the settlement of the estate, shall receive
therefrom, under the direction of the court, such allowance as
are provided by law.
Babao v. Villavicencio
The SC clarified that grandchildren are not included in Section
3.
Estate of Ruiz vs CA
Children of the deceased are included even beyong the age of
majority
Revocation of Administration
The discovery of a document purporting to be the last will and
testament of the deceased, after the appoinemtn of an
administrator, does not ipso facto nullify the letters of
administration already issued, or even authorize the revocation
thereof. It is only after the will is actually “proved and allowed”
that the probate court has authority to revoke the letters of
administration.
Removal, Resignation or Death of Executor or Administrator
Rule 87 Section 2. Court may be remove or accept resignation
of executor or administrator. Proceeding upon death,
resignation, or removal. — If an executor or administrator
neglects to render his account and settle the estate according to
law, or to perform an order or judgment of the court, or a duty
expressly provided by these rules, or absconds, or becomes
P a g e | 163
insane, or otherwise incapable or insuitable to discharge the
trust, the court may remove him, or in its discretion, may permit
him to resign. When an executor or administrator dies, resign,
or is removed the remaining executor or administrator may
administer the the trust alone, unless the court grants letters to
someone to act with him. If there is no remaining executor or
administrator, administration may be to any suitable person.
- The rule is that the removal of an administrator lies
within the discretion of the court appointing him.
- The removal or resignation of an administrator or
executor, or even his death, does not have the effect
of divesting the probate court of its jurisdiction.
Acts Prior to Revocation, Removal or Resignation
- Valid and binding to the new executor or administrator
Art. 1059.
If the assets of the estate of a decedent which can be
applied to the payment of debts are not sufficient for that
purpose, the provisions of Articles 2239 to 2251 on
Preference of Credits shall be observed, provided that the
expenses referred to in Article 2244, No. 8, shall be those
involved in the administration of the decedent's estate.
Insolvent Estate
In general, an estate is insolvent if the assets left by the
decedent are insufficient to pay the liabilities. In such a case, the
provisions of law pertaining to preference of credits shall apply.
Art. 1060.
A corporation or association authorized to conduct the
business of a trust company in the Philippines may be
appointed as an executor, administrator, guardian of an
estate, or trustee, in like manner as an individual; but it shall
not be appointed guardian of the person of a ward.

COLLATION
Art. 1061.
Every compulsory heir, who succeeds with other
compulsory heirs, must bring into the mass of the estate
any property or right which he may have received from the
decedent, during the lifetime of the latter, by way of
donation, or any other gratuitous title, in order that it may
be computed in the determination of the legitime of each
heir, and in the account of the partition. (1035a)
Collation is an integrated solution that that involves the ff.
process:
1. Collation of donation
2. Determination of whether donations a inofficous
3. Imputation of donation
4. Restitution of inofficious donation
Purpose of collation
1. Preservation of legitime
Art. 750. The donations may comprehend all the present
property of the donor, or part thereof, provided he reserves,
in full ownership or in usufruct, sufficient means for the
support of himself, and of all relatives who, at the time of
the acceptance of the donation, are by law entitled to be
supported by the donor. Without such reservation, the
donation shall be reduced in petition of any person affected.
(634a)
Art. 752. The provisions of Article 750 notwithstanding, no
person may give or receive, by way of donation, more than
he may give or receive by will.
A man may choose to be generous. However if he has
compulsory heir, he must make sure that donations that he
gave in the past and those that he intends to give in the
future should not exceed, in the aggregate, that portion of
his estate which he may freely dispose by will based on
NET HEREDITARY ESTATE at the time of his death. And
towards this end, all donations he has given in his lifetime
shall be accounted for upon his death in order to ensure
that these donations are not inofficious.
a. Collation is relevant only when compulsory heir
succeed.
P a g e | 164
Collation is relevant only when there are surviving
compulsory heirs who are entitled to the legitime. Thus, if
the decedent is surviving only by his siblings, the donations
made by the decedent in his lifetime are not collationable
since no portion of the estate is reserved to compulsory
heirs. (Arellano v. Pascual)
b. Collation is likewise irrelevant if the donee is the sole
compulsory heir of the donor.
Collation is relevant only when there are surviving compulsory
heirs who are entitled to the legitime. Thus, if the decedent is
surviving only by his siblings, the donations made by the
decedent in his lifetime are not collationable since no portion of
the estate is reserved to compulsory heirs.
The term collation has two distinct concepts: first, it is a mere
mathematical operation by the addition of the value of donations
made by the testator to the value of the hereditary estate; and
second, it is the return to the hereditary estate of property
disposed of by lucrative title by the testator during his lifetime.
The purposes of collation are to secure equality among the
compulsory heirs in so far as is possible, and to determine the
free portion, after finding the legitime, so that inofficious
donations may be reduced. Collation takes place when there
are compulsory heirs, one of its purposes being to
determine the legitime and the free portion. If there is no
compulsory heir, there is no legitime to be safeguarded.
Arellano v. Pascual
The records do not show that the decedent left any primary,
secondary or concurring compulsory heirs. He was only
survived by his siblings, who are his collateral relatives and,
therefore, are not entitled to any legitime – that part of the
testator’s property which he cannot dispose of because the law
reserved it for compulsory heirs.
The decedent not having left any compulsory heir who is entitled
to any legitime, he was at liberty to donate all his properties,
even if nothing was left for his siblings (collateral relatives) to
inherit. His donation to petitioner, assuming that it was valid, is
deemed as donation made to a stranger, chargeable against the
free portion of the estate. There being no compulsory heir,
however, the donated property is not subject to collation.
2. Quantitative equality among compulsory heirs.
a. Every donation to a compulsory heir is
charged to the legitime of such heir unless the
donor, in the relevant deed of donation,

expressly declared the donation to be non-
collationable.
Two concepts of collation
(a) Notional Accounting Process (b) Collation in the concept of
returning the property to the Donor’s estate. Atty. Sebastian
suggests that the fairest and the most practical solution for the
preservation of the legitime is to require every done, in case of
inofficous donations, to make cash reimbursement to the
donor’s estate for the value of donation exceeded, whether in
whole or in part, the disposable free portion.
Collation in concept of physically returning the property to the
donor’s estate should be mandatory only as last recourse; that
is, if the done is unable to make cash reimbursement to donor’s
estate following a definitive finding that the donation is wholly or
partially inofficous.
Art. 1062.
Collation shall not take place among compulsory heirs if
the donor should have so expressly provided, or if the
donee should repudiate the inheritance, unless the
donation should be reduced as inofficious. (1036)
Sebastian Lecture:
Stupid provision.
How do you know if collationable or not? Look at the deed of
donation.
If a donor stipulates that the donation to a compulsory heir is
non-collationable, the donation shall nonetheless be accounted
for, but it shall be charged to the disposable free portion and not
to the legitime of the done, provided that the donation is not
inofficous. The waiver of collation must in all cases, be expressly
stipulated in the relevant deeds of donation.
Collation seeks to preserve the legitime of the compulsory heirs,
and at the same time, to equalize the shares of the heirs in the
hereditary estate. As a rule, all gratuitous conveyances made by
the decedent during his lifetime are collationable. By way of an
exception, the donor may provide that a particular donation shall
not be collationable. In the exceptional case, it is necessary that
the prohibition to collate is expressed. Otherwise, no inference
can be deduced that the intention of the donor was to excuse
collation. (De Roma v CA)
Effect of Repudiation
P a g e | 165
The donation to the repudiating compulsory heir shall be
charged to the disposable free portion as though he was treated
as a STRANGER.
*SEE ANNEX COMPUTATION
Exclusion of the Surviving Spouse from the obligation to collate
Every donation or grant of gratuitous advantage, direct or
indirect, between the spouses during the marriage shall be void,
except moderate gifts which the spouses may give each other
on the occasion of any family rejoicing. The prohibition shall also
apply to persons living together as husband and wife without a
valid marriage (Art 87 FC)
There is an exclusion of the surviving spouse from obligation to
collate because donation between the spouses are void, a
surviving spouse can never be made to account for donations
given to him or to her by the deceased spouse in liquidation of
the estate of the latter.
Variants of Collationable Donation
Anything given by a person and received by another gratuitously,
other tha by way of support, is considered a donation.
Collationable donation may come from different form, the most
common being an ordinary donation inter vivos. Variants include
donation propter nuptias, remission of debts, renunciation of
inheritance in favor of specified persons, sums paid by parent
for outstanding debts of a child or for the latter’s civil liability
arising from criminal offense.
Persons Responsible to Collate
As a general rule, the responsibility to collate rests with the done.
Except as provided in Article 1064, the heirs of the donee cannot
be made to account for a donation which would have otherwise
been collationable by the donee in the settlement of the estate
of the donor.
Collation is the act by virtue of which descendants and other
forced heirs who intervene in the division of the inheritance of
an ascendant bring into the common mass, the property which
they receive from him, so that the division may be made
according to law and the will of the testator. Collation is only
required if compulsory heirs succeeding with other compulsory
heirs and involves property or rights received by donation or
gratuitous title during the lifetime of the decedent. The purpose
is to attain equality among the compulsory heirs in so far
possible for it is presumed that the intention of the testator or
predecessor in interest in making a donation or gratuitous

transfer to a forced heir is to give him something in advance on
account of his share in the estate, and that the predecessor’s
will is to treat all his heirs equally, in the absence of any
expression to the contrary. Collation does not impose any lien
on the property or the subject matter of collationable donation.
What is brought to collation is not the property donated itself, but
rather the value of such property at the time it was donated, the
rationale being that the donation is a real alienation which
conveys ownership upon its acceptance, hence any increase in
value or any deterioration or loss thereof is for the account of
the heir or donee.
Vizconde case:
It is not the property that is brought into the common mass, but
the only value thereof. Otherwise an erroneous inference may
arise: i.e., that collation refers to the property itself and thus
requires the restoration of the property to the mass of the estate
of the deceased person. Collation relates solely to the value of
the property donated and solely for accounting purposes – it
does not require the physical return of the property donated; for,
if the donation was valid, title to the property donated passed to
the ownership and dominion of the donee.
In respect of compulsory succession, the objective of collation
is to equalize the shares of compulsory heirs so that those who
receive an advance of their hereditary shares are made to
account for such advances when the estate of the donor is
divided among them at the time succession opens. In respect of
voluntary heirs inheriting with compulsory heirs, the objective of
collation is to ensure that what the donor gave gratuitously in his
lifetime does not exceed the free portion of the estate. Therefore,
the duty to collate is not limited to compulsory heirs. Voluntary
heirs are also charged with this obligation. Otherwise, the
legitime could be impaired through the simple expedient of
making donations to strangers.
It is not accurate to state that collation shall take place only after
a determination that the legitime of any compulsory heir has
been impaired. Collation is required by law precisely to
determine whether or not the legitime was impaired by a prior
donation inter vivos. If it is determined that the collationable
donation to strangers is within the “free disposal,” the same shall
be honored and the value of such donation shall be disregarded
for the purpose of distributing the estate to the rightful
beneficiaries. In the case of Ubarde v Jurado cited in the
decision, the refusal of the Supreme Court to compel the
collation of all prior donations to compulsory heirs was premised
on the fact that upon the death of the decedent, there were
substantial properties yet to be divided by the compulsory heirs,
P a g e | 166
and that there was no showing that the prior donations made to
some of the compulsory heirs indeed impaired the legitime of
the other compulsory heirs. Clearly, the rationale of Ubarde
rests on the lack of proof that the prior donations impaired the
legitime. Nonetheless, I subscribe to the idea that collation
should have been ordered by the court since it is only after the
collation of the value of prior donations can it be ascertained
whether or not the legitime of the compulsory heirs was impaired.
In any event, the collation in Ubarde is not that collation referred
to in Article 1061, but rather collation referred to in Article 1070
because the potentially collationable donations were donations
propter nuptias. In Article 1070, wedding gifts are collationable
only to the extent that they (collectively) exceed 10% of the free
disposal.
Collation does not refer to the property that was the subject
matter of a donation inter vivos made by the decedent in his
lifetime. Collation refers only to the value thereof. Hence it is
correctly stated that the Parañaque property is not a
collationable property since, it did not come from the decedent
Rafael. One thing should be very clear: while there is such a
thing as a collationable donation, there is no such thing as a
collationable property. This is the inevitable conclusion from the
fact that collation is a mere accounting process that requires the
inclusion of the value of all prior donations in calculating the
hereditary estate.
Art. 1063.
Property left by will is not deemed subject to collation, if the
testator has not otherwise provided, but the legitime shall
in any case remain unimpaired. (1037)
Legacies or devise given by the testator to compulsory heir is
generally charged to disposable free portion (NOT TO THE
LEGITIME) except if the testator explicitly provides otherwise.
At best, legacy or devise may be construed as instruction of the
testator that the legitime of the said compulsory heir shall be
paid, wholly or partly, by specific movable or immovable
property, as the case may be.
Treatment of donations and Testamentary Gifts Given to
Compulsory heir.
As a general rule, a donation to a compulsory heir is charged to
the disposable free portion, provided that legitime is not
impaired. The exception is when the testator in his will
specifically declared the same is to be charged to the legitime of
the compulsory heir.
SEE COMPUTATION p.962

Art. 1064.
When the grandchildren, who survive with their uncles,
aunts, or cousins, inherit from their grandparents in
representation of their father or mother, they shall bring to
collation all that their parents, if alive, would have been
obliged to bring, even though such grandchildren have not
inherited the property.
They shall also bring to collation all that they may have
received from the decedent during his lifetime, unless the
testator has provided otherwise, in which case his wishes
must be respected, if the legitime of the co-heirs is not
prejudiced. (1038)
*SEE COMPUTATION
Rules may be summed up as follows:
1. The grandchildren inherit from their grandparents by
right of representation.
2. Grandchildren represent their parent who either
predeceased the decedent or was otherwise
incapacitated to inherit from or disinherited by the latter.
3. Grandchildren are obliged to bring to collation
whatever their parent would have been obliged to
collate if the latter had inherited from the decedent. By
the right of representation, the grandchildren acquires
not only the inheritance that would have otherwise
pertained to their parents, but also their obligation of
their parents to collate the donations given them by the
decedent.
4. The obligation of the grandchildren under Art 1064
applies to both testamentary and intestate succession,
although there are differences in the causes and scope
of the right of representation in testamentary and
intestate succession.
Sebastian lecture:
If you inherited through representation, you are obligated to
collate.
Art. 1065.
Parents are not obliged to bring to collation in the
inheritance of their ascendants any property which may
have been donated by the latter to their children. (1039)
The burden of collation is personal to the done. Parents are not
obliged to bring to collation any property received by their
children by gratuitous title from the grandparents.
Art. 1066.
Neither shall donations to the spouse of the child be
brought to collation; but if they have been given by the
P a g e | 167
parent to the spouses jointly, the child shall be obliged to
bring to collation one-half of the thing donated. (1040)
A child is a compulsory heir of his or her parents; the spouse of
the child is not. A donation to a child is chargeable to the legitime
of the child, unless the donor specifically stipulated the donation
is non-collationable. A donation to the spouse of the child is a
donation to a stranger which is chargeable to the disposable free
portion.
Art. 1067.
Expenses for support, education, medical attendance, even
in extraordinary illness, apprenticeship, ordinary
equipment, or customary gifts are not subject to collation.
(1041)
Anything that is for support is not donation.
The following are bilaterally obliged to support each other:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and
illegitimate children of the latter;
(4) Parents and their illegitimate children and the legitimate and
illegitimate children of the latter; and
(5) Legitimate brothers and sisters, whether of full or half-blood
(6) illegitimate brothers and sisters whether full or half blood.
Support comprises everything indispensable for sustenance,
dwelling, clothing, medical attendance, education and
transportation, in keeping with the financial capacity of the family.
The education of the person entitled to be supported referred to
in the preceding paragraph shall include his schooling or training
for some profession, trade or vocation, even beyond the age of
majority. Transportation shall include expenses in going to and
from school, or to and from place of work.
Art. 1068.
Expenses incurred by the parents in giving their children a
professional, vocational or other career shall not be
brought to collation unless the parents so provide, or
unless they impair the legitime; but when their collation is
required, the sum which the child would have spent if he
had lived in the house and company of his parents shall be
deducted therefrom. (1042a)

Collation of Expenses for Education
The objective of the law is to avoid a situation where the
resources of the parents are exhausted by the educational
expenses of one or some of the children, to the prejudice of the
others. Thus, while a couple can afford to send one child to the
US for post grad studies, the expenses for such education
should not prejudice the legitime of the other children. For this
reason, if the parent so wishes, he or she may require the
expenses incurred to enable a child to finish a profession, trade
or vocation be collated.
Art. 1069.
Any sums paid by a parent in satisfaction of the debts of
his children, election expenses, fines, and similar expenses
shall be brought to collation. (1043a)
The general rule is that the obligations and expenses of a child
referred to in this article if paid by the parent/payor, is deemed
to be a donation of the payor to the child. The payment is not
part of the obligation of the payor to provide support to the child.
The payment is thus collationable by the child in the settlement
of the estate of the payor. The exception is if the payor did not
intend the child to make reimbursement, the payor is deemed to
have given a donation to the child in the amount of the sum thus
paid.
Art. 1070.
Wedding gifts by parents and ascendants consisting of
jewelry, clothing, and outfit, shall not be reduced as
inofficious except insofar as they may exceed one-tenth of
the sum which is disposable by will. (1044)
Sebastian note:
Jewelry, clothing, outfit—up to 10%
Donations by reason of marriage (Donation propter nuptias) are
those which are made before its celebration, in consideration of
the same, and in favor of one or both of the future spouses.
Hence it has the ff requisites:
a. It is made before the celebration of the marriage
b. Made in consideration thereof
c. Given in favor of one or both of the spouses
Wedding gift under 1070:
a. Gift of a parent to a child, or by ascendant to
descendant
b. Gift consists of jewelry, clothing or outfit
P a g e | 168
c. Given in consideration of marriage of a child or
descendant
Wedding gifts are not collationable to the extent of one tenth of
the disposable free portion of the estate of the donor.
*SEE COMPUTATION
Art. 1071.
The same things donated are not to be brought to collation
and partition, but only their value at the time of the donation,
even though their just value may not then have been
assessed.
Their subsequent increase or deterioration and even their
total loss or destruction, be it accidental or culpable, shall
be for the benefit or account and risk of the donee. (1045a)
The law specifically provides that the collationable value of a
donation is the value of the thing at the time the donation was
made. This is because such is the value of the property which is
left the patrimony of the donor. The final determination of the fair
valuation of collationable donation lies with the probate court.
Art. 1072.
In the collation of a donation made by both parents, one-
half shall be brought to the inheritance of the father, and
the other half, to that of the mother. That given by one alone
shall be brought to collation in his or her inheritance.
(1046a)
This article assumes that the property donated by the parents to
their children forms part of the community property or the
conjugal partnership and therefore co-owned by the parents.
Thus, if both parents gave a joint donation to a child, one half of
the value of donation is from the father and half from the mother.
A child who brings to collation a donation jointly made in his or
her favor by his or her parents will have to account for such
donation separately in the settlement of the respective estates
of his or her father or mother.
Art. 1073.
The donee's share of the estate shall be reduced by an
amount equal to that already received by him; and his co-
heirs shall receive an equivalent, as much as possible, in
property of the same nature, class and quality. (1047)
Art. 1074.
Should the provisions of the preceding article be
impracticable, if the property donated was immovable, the

co-heirs shall be entitled to receive its equivalent in cash or
securities, at the rate of quotation; and should there be
neither cash or marketable securities in the estate, so much
of the other property as may be necessary shall be sold at
public auction.
If the property donated was movable, the co-heirs shall only
have a right to select an equivalent of other personal
property of the inheritance at its just price. (1048)
This article seeks to achieve not only quantitative equality
among heirs; it also endeavors to achieve qualitative equality.
The law is premised on the clause “as much as possible” Thus
if qualitative equality is not possible, the aggrieved co-heir may
be compensated for his disadvantage thru payment in cash or
transfer of marketable securities.
Art. 1075.
The fruits and interest of the property subject to collation
shall not pertain to the estate except from the day on which
the succession is opened.
For the purpose of ascertaining their amount, the fruits and
interest of the property of the estate of the same kind and
quality as that subject to collation shall be made the
standard of assessment. (1049)
The article assumes that after collation, the donation was found
to be inofficous thereby requiring the donee to make restitution.
The restitution in this article contemplates a physical return of
the property to the donor’s estate (FORGET ABOUT THIS –
Sebastian)
Art. 1076.
The co-heirs are bound to reimburse to the donee the
necessary expenses which he has incurred for the
preservation of the property donated to him, though they
may not have augmented its value.
The donee who collates in kind an immovable which has
been given to him must be reimbursed by his co-heirs for
the improvements which have increased the value of the
property, and which exist at the time the partition if effected.
As to works made on the estate for the mere pleasure of the
donee, no reimbursement is due him for them; he has,
however, the right to remove them, if he can do so without
injuring the estate. (n)
The physical return of the property is inferred from the donee’s
right to reimbursement for the necessary and useful expenses
P a g e | 169
he incurred in the preservation and improvement of the property
donated to him. He is reimbursed for these expenses because
the donation was found to be inofficous and he must return the
same to the estate of the donor.
(Forget this! – Sebastian)
Art. 1077.
Should any question arise among the co-heirs upon the
obligation to bring to collation or as to the things which are
subject to collation, the distribution of the estate shall not
be interrupted for this reason, provided adequate security
is given. (1050)
The distribution of estate should not be delayed. This article
prescribes that the distribution of estate shall not be interrupted
by unresolved issues pertaining to collation. However; the done
who resists collation must provide adequate security to those
who insist on it.
Partition and Distribution of the Estate
Partition
Art. 1078.
Where there are two or more heirs, the whole estate of the
decedent is, before its partition, owned in common by such
heirs, subject to the payment of debts of the deceased. (n)
From the moment of death, the heirs acquire legal title to
hereditary estate. Respective shares will be determined by will
or by law.
In testamentary, it is necessary that the will must first be
probated. In intestacy, there could be a judicial or extrajudicial
partition of estate.
Art. 1079.
Partition, in general, is the separation, division and
assignment of a thing held in common among those to
whom it may belong. The thing itself may be divided, or its
value. (n)
Quasha Ancheta v LCN Construction
In sum, although it is within the discretion of the RTC whether or
not to permit the advance distribution of the estate, its exercise
of such discretion should be qualified by the following: (1) only

part of the estate that is not affected by any pending controversy
or appeal may be subject of advance distribution; and (2) the
distributes must post a bond fixed by the court conditions for the
payment of outstanding obligations of the estate. There is no
showing that the RTC in awarding to the petitioner children and
widow their shares in the estate prior to the settlement of all its
obligations, complied with these two requirements or, at the very
least, took the same into consideration. Its Order of 12 June
2003 is completely silent on these matters. It justified its grant of
the award in a single sentence which stated that petitioner
children and widow had not yet received their respective shares
from the estate after all these years. Taking into account that the
claim of LCN against the estate of the late Raymond Triviere
allegedly amounted to Php6,016,570.65, already in excess of
the Php4,738,558.63 reported total value of the estate, the RTC
should have bee more prudent in approving the advance
distribution of the same.
Art. 1080.
Should a person make partition of his estate by an act inter
vivos, or by will, such partition shall be respected, insofar
as it does not prejudice the legitime of the compulsory heirs.
A parent who, in the interest of his or her family, desires to
keep any agricultural, industrial, or manufacturing
enterprise intact, may avail himself of the right granted him
in this article, by ordering that the legitime of the other
children to whom the property is not assigned, be paid in
cash. (1056a)
Sebastian note:
Take not of this. This happens often.
Dimayuga case:
Article 1043 provides that no person may accept or repudiate an
inheritance unless his is certain of the death of the person from
whom he is to inherit, and of his right to the inheritance. A
compulsory heir who is deprived of his legitime through a
donation inter vivos or through a partition inter vivos made by
his father, is not deemed to have repudiated the inheritance to
the extent of the shortfall of his legitime, even if in the meantime
he had executed an affidavit confirming and accepting his share
of the distributed property.
Mang-oy case:
P a g e | 170
Article 1080 permits a person to make a partition of his estate
by an act inter vivos, or by will. Such partition shall be respected
provided the legitime of the compulsory heirs is not prejudiced.
The Court held that this partition is not in the nature of a donation
nor of a will. It is of a special character which does not even
require the execution of a prior will. The partition is revocable at
any time during the lifetime of the causante, and does not
operate to convey ownership of the properties involved until the
death of the latter.
CURRENT RULE:
Chavez case:
The ruling in Mang-oy has not been abandoned. Indeed, Chavez
goes one step further.
Mang-oy holds that a partition inter vivos executed in
accordance with Article 1080 is revocable by a person at any
time during his or her lifetime, and that such partition will not
result in a transfer of ownership to his heirs during his lifetime.
Chavez holds that an exception may be taken if the partition has
been implemented and that one (or some) of the heirs, with the
consent of the person making it, conveys or sells his or her pro-
indiviso share to another co-heir. Estoppel bars a selling heir
from disavowing the sale and from proceeding contrary thereto.
The Court further ruled that the several sales among the co-
heirs did not constitute contracts involving future inheritance
because each of the sales was with the expressed consent of
the parent. This was construed as a sale of the parent herself.
Finally, the court opined that a partition inter vivos under Article
1080 does not require a specific form and may be made orally
or in writing.
Art. 1081.
A person may, by an act inter vivos or mortis causa, intrust
the mere power to make the partition after his death to any
person who is not one of the co-heirs.
The provisions of this and of the preceding article shall be
observed even should there be among the co-heirs a minor
or a person subject to guardianship; but the mandatary, in
such case, shall make an inventory of the property of the
estate, after notifying the co-heirs, the creditors, and the
legatees or devisees. (1057a)
The provision of the law envisions a situation where a testator
instituted several heirs to aliquot parts of hereditary estate. The
third person who is authorized to make partition of the estate is

guided by the testamentary dispositions in the will. The power
entrusted to him is limited to effecting a partition and does not
include the power how much shall be given to the heir.
Art. 1082.
Every act which is intended to put an end to indivision
among co-heirs and legatees or devisees is deemed to be a
partition, although it should purport to be a sale, and
exchange, a compromise, or any other transaction. (n)
Every act that puts an end to indivision is deemed a partition
regardless of how the same was documented. Thus, when a co-
ownership is extinguished by transactions such as sale, the
transaction is considered a partition.
Art. 1083.
Every co-heir has a right to demand the division of the
estate unless the testator should have expressly forbidden
its partition, in which case the period of indivision shall not
exceed twenty years as provided in article 494. This power
of the testator to prohibit division applies to the legitime.
Even though forbidden by the testator, the co-ownership
terminates when any of the causes for which partnership is
dissolved takes place, or when the court finds for
compelling reasons that division should be ordered, upon
petition of one of the co-heirs. (1051a)
No co-owner shall be obliged to remain in the co-ownership.
Each co-owner may demand at any time the partition of the thing
owned in common, insofar as his share is concerned.
Nevertheless, an agreement to keep the thing undivided for a
certain period of time, not exceeding ten years, shall be valid.
This term may be extended by a new agreement.
A donor or testator may prohibit partition for a period which shall
not exceed twenty years.
Neither shall there be any partition when it is prohibited by law.
No prescription shall run in favor of a co-owner or co-heir against
his co-owners or co-heirs so long as he expressly or impliedly
recognizes the co-ownership.
A testamentary disposition prohibiting the alienation of the
hereditary estate for a period exceeding twenty years is void.
However, the Court has ruled that the nullity refers not to the
prohibition to alienate, but to the prohibition in excess of the first
twenty years.
Art. 1084.
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Voluntary heirs upon whom some condition has been
imposed cannot demand a partition until the condition has
been fulfilled; but the other co-heirs may demand it by
giving sufficient security for the rights which the former
may have in case the condition should be complied with,
and until it is known that the condition has not been fulfilled
or can never be complied with, the partition shall be
understood to be provisional. (1054a)
The partition of hereditary estate cannot be deferred indefinitely
by reason of delayed fulfillment of a condition that affects only
one or some of the beneficiaries of the hereditary estate. Those
who are not affected by the suspensive condition may demand
partition of the estate, provided that they give adequate security
to the heir affected by the suspensive condition. The security is
intended to guaranty that upon its fulfillment, the heir receives
his share if the inheritance.
Art. 1085.
In the partition of the estate, equality shall be observed as
far as possible, dividing the property into lots, or assigning
to each of the co-heirs things of the same nature, quality
and kind. (1061)
The qualitative equality is not a rigid rule. It is distinctly possible
that qualitative may be extremely difficult, if not altogether
impossible, to achieve.
Art. 1086.
Should a thing be indivisible, or would be much impaired
by its being divided, it may be adjudicated to one of the
heirs, provided he shall pay the others the excess in cash.
Nevertheless, if any of the heirs should demand that the
thing be sold at public auction and that strangers be
allowed to bid, this must be done. (1062)
This article provides two alternate solutions to dissolve co-
ownership between or among other heirs to wit-
1. Adjudicate the thing to one heir who shall be obliged to
pay the other heir or heirs the cash equivalent of his or
her shares. This option may require that the property
be professionally appraised so that the cash payment
would be based on fair valuation.
2. Sell the thing at public auction where the heirs (any of
them) and the public shall be invited to participate. The
sale at public auction is calculated to fetch the FMV of
the thing sold.

Between the 2 options, the second shall be undertaken on
demand of any co-heir.
Art. 1087.
In the partition the co-heirs shall reimburse one another for
the income and fruits which each one of them may have
received from any property of the estate, for any useful and
necessary expenses made upon such property, and for any
damage thereto through malice or neglect. (1063)
Reimbursement of Costs and Benefits
1. Co-heirs are mandated to reimburse each other for any
income or benefit which each of them may have
received from any property forming part of the
hereditary estate prior to partition
2. Co-heirs are obligated to reimburse a co-heir who
incurred expenses for necessary or useful
improvements on the thing or property owned in
common.
3. A co-heir is obliged to reimburse the other co-heirs for
any damage which thru malice or neglect he caused
the thing or property owned in common.
Art. 1088.
Should any of the heirs sell his hereditary rights to a
stranger before the partition, any or all of the co-heirs may
be subrogated to the rights of the purchaser by reimbursing
him for the price of the sale, provided they do so within the
period of one month from the time they were notified in
writing of the sale by the vendor. (1067a)
Article 1088 of the Code gives to co-heirs the right to redeem,
within 30 days from written notice of the sale, the hereditary
property sold by a co-heir to a stranger. The Court has
interpreted this provision (as well as the counterpart provision in
Article 1623) that the notice must be in writing and sent by the
seller to all prospective redemptioners. The Court took
exception in this case in view of the peculiar circumstances and
waived the written notice requirement.
In requiring written notice, Article 1088 seeks to endure that the
redemptioner is properly notified of the sale and to indicate the
date of such notice as the starting time of the 30-day period of
redemption. Considering the shortness of the period, it is really
necessary, as a general rule, to pinpoint the precise date it is
supposed to being, to obviate any problem of alleged delays,
sometimes consisting of only a day or two.
The instant case presents no such problem because the right of
redemption was invoked not days but years after the sales were
P a g e | 172
made in 1963 and 1964. The complaint was filed by Tecla
Padua in 1977, thirteen years after the first sale and fourteen
years after the second sale. The delay invoked by the petitioners
extends to more than a decade, assuming of course that there
was a valid notice that tolled the running of the period of
redemption.
Alonzo v IAC
Sebastian note:
Important case. Without written notice, redemption period will
not commence.
We realize that in arriving at our conclusion today, we are
deviating from the strict letter of the law, which the respondent
court understandably applied pursuant to existing jurisprudence.
The said court acted properly as it had no competence to
reverse the doctrines laid down by this Court in the above cited
cases. In fact, and this should be clearly stressed, we ourselves
are not abandoning the de Cornejo and Butte doctrines. What
we are doing simply is adopting an exception to the general rule,
in view of the peculiar circumstances of this case.
The co-heirs in this case were undeniably informed of the sales
although no notice in writing was given them. And there is no
doubt either that the 30-day period began and ended during the
14 years between the sales in question and the filing of the
complaint for redemption in 1977, without the co-heirs
exercising their right of redemption. These are the justifications
for this exception.
Art. 1089.
The titles of acquisition or ownership of each property shall
be delivered to the co-heir to whom said property has been
adjudicated. (1065a)
Art. 1090.
When the title comprises two or more pieces of land which
have been assigned to two or more co-heirs, or when it
covers one piece of land which has been divided between
two or more co-heirs, the title shall be delivered to the one
having the largest interest, and authentic copies of the title
shall be furnished to the other co-heirs at the expense of
the estate. If the interest of each co-heir should be the same,
the oldest shall have the title. (1066a)
Self explanatory

Effects of Partition
Art. 1091.
A partition legally made confers upon each heir the
exclusive ownership of the property adjudicated to him.
(1068)
This article does not contradict Art 777. While heris acquire title
to hereditary estate upon the moment of death of the decedent,
non of the co-heirs acquire exclusive title to any property forming
part thereof. Until the partition, the entire estate is owned in
common by the co-heirs.
Art. 1092.
After the partition has been made, the co-heirs shall be
reciprocally bound to warrant the title to, and the quality of,
each property adjudicated. (1069a)
Warranty of Title:
The warranty of title does not require a new partition. The
obligation of each co-heir under the warranty of title may be
discharged by any means mutually acceptable to all concerned
whereby the deficiency in the share of the evicted heir is made
whole. Accordingly, the obligation under this warranty may be
discharged by cash payment from the other heirs, or by delivery
of property that would complete the share of the evicted heir.
Sebastian lecture:
Warranty is important if the partition is made by the heirs
themselves.
Warranty Against Hidden Defect:
The heir may invoke the warranty against hidden defects. The
co-heirs are therefore called upon to make whole the loss of the
aggrieved heir. On the other hand, if the heir accepts a parcel
of land which is known to have been used as a dumpsite, he
cannot claim breach of warranty against hidden defects.
Art. 1093.
The reciprocal obligation of warranty referred to in the
preceding article shall be proportionate to the respective
hereditary shares of the co-heirs, but if any one of them
should be insolvent, the other co-heirs shall be liable for his
part in the same proportion, deducting the part
corresponding to the one who should be indemnified.
P a g e | 173
Those who pay for the insolvent heir shall have a right of
action against him for reimbursement, should his financial
condition improve. (1071)
Co-heirs who are called upon to make good the warranty of title
and/or warranty of hidden defects are liable to aggrieved heir in
proportion to their respective shares of the inheritance.
Insolvency of the indemnitor
If any of the heirs who is obliged to indemnify an aggrieved heir
is insolvent, the share of the insolvent indemnitor shall be
assumed by the solvent indemnitors, but deducting therefrom
the share corresponding to the indemnitee.
Sebastian lecture:
Those heirs who exactly received their share cannot be made
as defendant in the rescission of partition.
Art. 1094.
An action to enforce the warranty among heirs must be
brought within ten years from the date the right of action
accrues. (n)
Self explanatory
Art. 1095.
If a credit should be assigned as collectible, the co-heirs
shall not be liable for the subsequent insolvency of the
debtor of the estate, but only for his insolvency at the time
the partition is made.
The warranty of the solvency of the debtor can only be
enforced during the five years following the partition.
Co-heirs do not warrant bad debts, if so known to, and
accepted by, the distributee. But if such debts are not
assigned to a co-heir, and should be collected, in whole or
in part, the amount collected shall be distributed
proportionately among the heirs. (1072a)
Whenever receivables form part of the inheritance of the
deceased person, their value must be determined. If it is
determined that the debtor has the capacity to make full and
prompt payment, the receivable is deemed sound and its face
value shall be recognized in full.
The warranty of solvency is enforceable by an heir against his
or her co-heirs within the period of 5 years from the date of
partition.

The last sentence of the article envisions a situation where a
doubtful receivable was not distributed to the heirs on partition.
The same was retained by the estate for collection. If no
recovery was made, the same must be considered written-off.
On the other hand, if there is a full or partial recovery obtained
from the debtor, the proceeds thereof shall be distributed to the
heirs proportionately.
Art. 1096.
The obligation of warranty among co-heirs shall cease in
the following cases:
(1) When the testator himself has made the partition, unless
it appears, or it may be reasonably presumed, that his
intention was otherwise, but the legitime shall always
remain unimpaired;
(2) When it has been so expressly stipulated in the
agreement of partition, unless there has been bad faith;
(3) When the eviction is due to a cause subsequent to the
partition, or has been caused by the fault of the distributee
of the property. (1070a)
Exclusion on the warranties
1. The warranties are generally not extended to the heirs
when the partition is made by the testator
2. The warranties may be waived by the heirs in the
relevant deed of partition.
3. The warranty of title cannot be invoked by an heir who
is evicted for a cause that arose subsequent to a
partition.
Rescission and Nullity of Partition
Art. 1097.
A partition may be rescinded or annulled for the same
causes as contracts. (1073a)
Annulment of Partition
A partition of hereditary estate is premised on the survival of two
or more co-heirs who are entitled to inherit the hereditary estate.
Upon the demise of the decedent, they became co-owners of
the inheritance. Unless the testator partitioned his estate
between or among his heirs, the partition of the hereditary estate
among the heirs requires the execution of a contract referred to
as deed of donation.
Recission in Contract Law
P a g e | 174
In this context, rescission is governed by the ff basic principles
1. The action for rescission is subsidiary; it cannot be
instituted except when the party suffering damage has
no other legal means to obtain reparation for the same.
2. Rescission shall be only to the extent necessary to
cover the damages caused to the plaintiff
3. Rescission creates the obligation to return the things
which were the object of the contract, together with
their fruits, and the price with its interest; consequently,
it can be carried out only when he who demands
rescission can return whatever he may be obliged to
restore.
Neither shall rescission take place when the things
which are the object of the contract are legally in the
possession of third persons who did not act in bad faith.
In this case, indemnity for damages may be demanded
from the person causing the loss.
4. Rescission of contract based on lesion is not available
with respect to contracts approved by the court.
5. The action for rescission prescribes in four years
Recission of Partition
A partition may be rescinded for the same causes of contracts.
Accordingly, a deed of partition may be rescinded for the causes
referred to in Art 1381.
Void Partition:
Bautista holds that an action to set aside a void extra judicial
partition is imprescriptible. However, the Court’s statement that
an invalid partition transmits no right is rather disturbing. Notice
that it is the death of the decedent that transmits ownership of
the hereditary estate to the heirs – not the partition that is
executed between or among them. In Go Ong v Court of
Appeals, the Court upheld the sale of 1⁄2 of the property which
pertains to the conjugal share of the wife, setting aside only the
sale insofar as the 1⁄2 portion of the property that is subject of
settlement proceedings. In the instant case, Angelica and
Alegria already acquired ownership of their respective shares of
the property upon the demise of Teodora. Shouldn’t the Court
uphold the sale to Pacita, and Pacita’s sale to Pedro, at least
insofar as the shares of Angelica and Alegria are concerned?
The above presents an intriguing case of partition which the SC
declared invalid. The court ruled that an action to set aside an
invalid partition is imprescriptible.

Art. 1098.
A partition, judicial or extra-judicial, may also be rescinded
on account of lesion, when any one of the co-heirs received
things whose value is less, by at least one-fourth, than the
share to which he is entitled, considering the value of the
things at the time they were adjudicated. (1074a)
Lesion in Partition
A partition may be rescinded on account of lesion, provided that
the extent of damage to aggrieved heir is at least one-fourth of
the value of his rightful share in the inheritance. A judicially
approved partition does not bar the remedy of rescission
Art. 1099.
The partition made by the testator cannot be impugned on
the ground of lesion, except when the legitime of the
compulsory heirs is thereby prejudiced, or when it appears
or may reasonably be presumed, that the intention of the
testator was otherwise. (1075)
As the general rule; an heir cannot raise issue of economic
damage. Thus, whatever the testator may have given to a
voluntary heir, the latter has an economic advantage of which
the heir must be grateful. The exception is when the legitime is
impaired. A voluntary heir may raise economic damage resulting
from a partition made by the testator which can only be proved
by competent evidence.
Art. 1100.
The action for rescission on account of lesion shall
prescribe after four years from the time the partition was
made. (1076)
This article sets a period of 4 years to bring an action to rescind
a partition and for an action to rescind contract.
Art. 1101.
The heir who is sued shall have the option of indemnifying
the plaintiff for the loss, or consenting to a new partition.
Indemnity may be made by payment in cash or by the
delivery of a thing of the same kind and quality as that
awarded to the plaintiff.
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If a new partition is made, it shall affect neither those who
have not been prejudiced nor those have not received more
than their just share. (1077a)
The article contemplates that even if an heir suffered economic
damage in consequence of a partition, the court is not required
to order a rescission. The law gives action for rescission of
partition in 2 distinct options.
1. To indemnify the plaintiff heir for the economic damage
which the latter sustained under the partition
2. To agree on a new partition. (rests on defendants)
Art. 1102.
An heir who has alienated the whole or a considerable part
of the real property adjudicated to him cannot maintain an
action for rescission on the ground of lesion, but he shall
have a right to be indemnified in cash. (1078a)
The heir who seeks to rescind a partition must not have
alienated the property which he received under the partition
which he seeks to rescind. His sole remedy is to ask
indemnification to compensate him for the economic damage
which he suffered under the assailed partition.
Art. 1103.
The omission of one or more objects or securities of the
inheritance shall not cause the rescission of the partition
on the ground of lesion, but the partition shall be completed
by the distribution of the objects or securities which have
been omitted. (1079a)
Incomplete distribution of Estate
A partition cannot be rescinded simply because of an incomplete
distribution of hereditary estate. If some of the assets comprising
the inheritance were omitted, the remedy of the heirs is not to
set aside partition, but to execute a supplemental deed of
partition whereby the omitted assets shall be distributed among
them.
Art. 1104.
A partition made with preterition of any of the compulsory
heirs shall not be rescinded, unless it be proved that there
was bad faith or fraud on the part of the other persons
interested; but the latter shall be proportionately obliged to
pay to the person omitted the share which belongs to him.
(1080)

In this article, preterition means exclusion of compulsory heir in
the partition of an inheritance. The omission is not attributable
to the testator, but is the result of the partition executed by the
heirs themselves.
Non v CA
In debunking the continued existence of a co-ownership among
the parties hereto, respondents rely on the deed of donation and
deed of extrajudicial settlement which consolidated the title
solely to Nilo Viado. Petitioners assail the due execution of the
document on the grounds heretofore expressed.
Unfortunately for petitioners, the issues they have raised boil
down to the appreciation of the evidence, a matter that has been
resolved by both the trial court and the appellate court. The
Court of Appeals, in sustaining the court a quo, has found the
evidence submitted by petitioners to be utterly wanting,
consisting of, by and large, self- serving testimonies. While
asserting that Nilo Viado employed fraud, forgery and undue
influence in procuring the signatures of the parties to the deeds
of donation and of extrajudicial settlement, petitioners are vague,
however, on how and in what manner those supposed vices
occurred. Neither have petitioners shown proof why Julian Viado
should be held incapable of exercising sufficient judgment in
ceding his rights and interest over the property to Nilo Viado.
The asseveration of petitioner Rebecca Viado that she has
signed the deed of extrajudicial settlement on the mistaken
belief that the instrument merely pertained to the administration
of the property is too tenuous to accept. It is also quite difficult
to believe that Rebecca Viado, a teacher by profession, could
have misunderstood the tenor of the assailed document,
The fact alone that the two deeds were registered five years
after date of their execution did not adversely affect their validity
nor would such circumstance alone be indicative of fraud. The
registration of the documents was a ministerial act and merely
created a constructive notice of its contents against all third
persons. Among the parties, the instruments remained
completely valid and binding.
The exclusion of petitioner Delia Viado, allegedly to be a
retardate, from the deed of extrajudicial settlement verily has
had the effect of preterition. This kind of preterition, however, in
the absence of fraud and bad faith, does not justify a collateral
attack on Transfer Certificate of Title No. 373646. The relief, as
so correctly pointed out by the Court of Appeals, instead rests
on Article 1104 of the Civil Code to the effect that where the
preterition is not attended by bad faith and fraud, the partition
shall not be rescinded but the preterited heir shall be paid the
P a g e | 176
value of the share pertaining to her. Again, the appellate court
has thus acted properly in ordering the remand of the case for
further proceedings to make the proper valuation of the Isarog
Property and ascertainment of the amount due petitioner Delia
Viado.
The omission of a compulsory heir in the distribution of the
partible estate, in the absence of fraud or bad faith, will not result
in the rescission of the partition. In Article 1104, the law uses the
phrase “preterition of any of the compulsory heirs”. Preterition
as used in this article should be distinguished from preterition
under Article 854.
Art. 1105.
A partition which includes a person believed to be an heir,
but who is not, shall be void only with respect to such
person. (1081a)
Participation of Strangers in Partition
The parties must have an actual interest in the hereditary estate;
each party must be a co-heir. A stranger to the inheritance, a
person who has no economic interest therein, has no legal
standing to participate in the partition of the estate. And if by his
participation, he receives something from the estate, he does
not acquire ownership thereof because there is no legal basis
for such acquisition. If he is made a party to a deed of partition,
the same is void but only as to him.
Effect of the Nullity of Partition
The nullity of partition is limited only to those strangers who
participated therein. The partition shall not be set aside
completely, it being valid with respect to all other parties who
have genuine interest in the hereditary estate. Accordingly,
whatever may have been adjudicated in favor of the stranger(s)
must be returned to the estate for proper disposition in
accordance with law.