ATENEO CENTRAL BAR OPERATIONS 2007

Civil Law
SUMMER REVIEWER

SUCCESSION KINDS OF SUCCESSION

1. Testamentary – that which results from the
CHAPTER 1: GENERAL PROVISIONS designation of an heir, made in a will executed in
the form prescribed by law
2. Legal or Intestate – that which takes place by
SUCCESION - Is a mode of acquisition by operation of law in the absence of a valid will
virtue of which the property, rights and 3. Mixed – that which is effected partly by will and
obligations to the extent of the value of the partly by operation of law
inheritance, of a person are transmitted
through his death to another or others either KINDS OF HEIRS
by his will or by operation of law (Art. 774) 1. Compulsory – those who succeed by force of
law to some portion of the inheritance, in an
amount predetermined by law, of which they
ELEMENTS OF SUCCESSION cannot be deprived by the testator, except by a
1. Decedent valid disinheritance
2. Successors 2. Voluntary or Testamentary – those who are
a. Heirs – those who are called to the whole or instituted by the testator in his will, to succeed to
to an aliquot portion of the inheritance either the portion of the inheritance of which the testator
by will or by operation on law can freely dispose
b. Devisees or Legatees – persons to whom 3. Legal or Intestate – those who succeed to the
gifts of real or personal property are estate of the decedent who dies without a valid
respectively given by virtue of a will. will, or to the portion of such estate not disposed
3. Death of the Person – However, a person may of by will
be presumed dead for the purpose of opening his
succession (see rules on presumptive death). In
this case, succession is only of provisional CHAPTER 2: GENERAL PROVISIONS ON WILLS
character because there is always the chance
that the absentee may be alive. ELEMENTS OF A WILL
4. Inheritance – is the subject matter of Succession 1. It is an act;
it includes: 2. whereby a person is permitted;
• Property and transmissible rights and 3. with the formalities prescribed by law;
obligations 4. to control to a certain degree;
• Existing at the time of his death 5. the disposition of his estate;
• AND those which have accrued thereto 6. to take effect after his death.
since the opening of succession.
KINDS OF WILLS:
RIGHTS EXTINGUISHED BY DEATH 1. Notarial – an ordinary or attested will
1. Support 2. Holographic – a handwritten will
2. Usufruct
3. Those arising from personal consideration COMMON REQUISITES BETWEEN THE TWO
4. Personal easements WILLS:
5. Partnership rights 1. must be in writing and
6. Agency 2. in a language or dialect known to the testator
QuickTime™ and a
7. Life Annuity TIFFare(Uncompressed) decompressor
needed to see this picture.
CHARACTERISTICS OF A WILL:
Succession Inheritance 1. Unilateral
Refers to the legal Refers to the 2. Strictly Personal act
mode by which universality or entirety a. Acts which may not be left to the discretion of
inheritance is of the property, rights third persons (Articles 785 AND 787):
transmitted to the and obligations of a i. Duration or efficacy of the designation of
persons entitled to it. person who died. heirs, devisees or legatees;

—Adviser: Dean Cynthia del Castillo Head: Joy Ponsaran, Eleanor Mateo; Understudy: Joy Tajan, John Paul Lim;
Subject Head: Polaris Rivas;
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007
ii. Determination of the portions which they
are to take, when referred to by name;
and
iii. Determination of whether or not the
testamentary disposition is to be
operative
b. Acts which may be entrusted to third persons
(Article 787);
i. Distribution of specific property or sums
of money that he may leave in general to
specified classes or causes; and
ii. Designation of the persons, institutions or
establishments to which such property or
sums are to be given or applied.
3. Free and voluntary act
4. Formal and solemn act
5. Act mortis causa
6. Ambulatory and revocable during the testator’s
lifetime
7. Individual act
INTERPRETATION OF WILLS
1. Animus Testandi - The testator’s intent (animus
testandi), as well as giving effect to such intent is
primordial. EXCEPT: when the intention of the
testator is contrary to law, morals or public policy.
2. In case of doubt, the interpretation by which the
disposition is to be operative or will sustain and
uphold the will in all its parts shall be adopted,
provided that it can be done consistently with the
established rules of law.
3. Ambiguities in Wills – Intrinsic or extrinsic
evidence may be used to ascertain the testatorial
intent of the testator. EXCEPT: the oral
declarations of the testator as to his intentions
must be excluded because such testimony would
be hearsay.
4. After Acquired Property - Property acquired
during the period between the execution of the
will and the death of the testator is NOT included
among the property disposed of. EXCEPT: When
a contrary intention expressly appears on the will.
NOTE: This rule applies
QuickTime™onlyand a to legacies and
TIFF (Uncompressed) decompressor
devisees and not areto institution
needed of heirs
to see this picture.
TESTAMENTARY CAPACITY
1. All persons who are not expressly prohibited by
law
2. 18 years old and above
3. Of sound mind, at the time of its execution; A
testator is considered of sound mind if he knows
at the time of making of the will the following:
a. Nature of the estate to be disposed of
b. Proper objects of his bounty
c. Character of the testamentary act
• Supervening capacity or incapacity does not
affect the will because the validity of a will is
determined at the time of the execution of the
will.
LEGAL PRESUMPTION IN FAVOR OF
SOUNDNESS OF MIND
• GENERAL RULE: The law presumes that the
testator is of sound mind
• EXCEPT:
a. When the testator, one month or less, before
making his will was publicly known to be
insane; or
b. Was under guardianship at the time of the
making of his will. (Torres and Lopez de
Bueno vs. Lopez, 48 Phil. 772)
CHAPTER 3: FORMS OF WILL
1. NOTARIAL WILL – a valid notarial will:
a. Must be in writing and in a language or
dialect known to the testator
b. Subscribed at the end by the testator himself
or by the testator’s name written by some
other person in his presence, and by his
express direction
c. Attested & subscribed by three or more
credible witnesses in the presence of the
testator and of one another
• Mandatory Part: The signing on every
page in the witnesses’ presence
• NOTE: Test of presence is not whether
they actually saw each other sign, but
whether they might have seen each other
sign had they chosen to do so
considering their mental and physical
condition and position with relation to
each other at the moment of inscription
of each signature.
• Directory Part: The place of the
signature, i.e. the left margin; the
signature can be affixed anywhere on the
page.
Page 84 of 297
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

d. Each and every page, except the last, must be • The attestation clause need only be signed
signed by the testator or by the person requested by the witnesses and not by the testator as it
by him to write his name, and by the instrumental is a declaration made by the witnesses.
witnesses of the will, on the left margin.
Signatures on the left margin on each and every
page NOT REQUIRED:
i. In the last page, when the will consists of two
or more pages;
ii. When the will consists of only one page;
iii. When the will consists of two pages, the first Icasiano vs. Icasiano, II SCRA 422 – the
consists of all the testamentary disposition inadvertent failure of one witness to affix his
and is signed at the bottom by the testator signature to one page of the original will due to
and the witnesses and the second contains the simultaneous lifting of two pages in the
only the attestation clause duly signed at the course of signing is not per se sufficient to
bottom by the witnesses. justify denial of probate when the duplicate will
shows
e. Each and every page of the will must be
numbered correlatively in letters placed on the Cruz v. Villasor, 54 SCRA 31- the notary
upper part of each page. public cannot be counted as one of the attesting
• Mandatory Part: Pagination by means of a witnesses
conventional system.
• Directory Part: The pagination in letters on
Subscription - The manual act of instrumental
the upper part of each page
witnesses in affixing their signature to the
instrument.
f. It must contain an attestation clause, stating the
following:
a. The number of pages used upon which the ATTESTATION SUBSCRIPTION
will is written
b. The fact that the testator signed the will and 1. act of the senses 1. act of the hand
every page, or caused some other person to
2. mental act 2. mechanical act
write his name, under his express direction,
in the presence of the instrumental witnesses 3. Purpose is to render 3. Purpose is for
c. All the instrumental witnesses witnessed and available proof during the identification
signed the will and all its pages in the probate that such will had
presence of the testator and of one another been executed in
accordance with the
formalities prescribed by
g. It must be acknowledged before a notary public law
by the testator and the witnesses 4. Found after the 4. Found at the left side
attestation clause at the margin of every page of
ATTESTATION v. SUBSCRIPTION end or last page of the will the will

Attestation – An act of witnessing execution of

will by testator in order to see and take note
mentally those things are done which the
statute requires for the execution of a will and
that the signature ofQuickTime™
the testator exists as a
and a
fact. TIFF (Uncompressed) decompressor
are needed to see this picture.
• The attestation clause need not be written in
a language or dialect known to the testator
nor to the witnesses since it does not form
part of the testamentary disposition
ADDITIONAL REQUISITES FOR VALIDITY
a. If the Testator be Deaf or Deaf-Mute:
i. Testator must personally read the will, if
able to do so;
ii. Otherwise, he shall designate two
persons to read it and communicate to
him, in some practicable manner, its
contents (Art 807)
b. If the Testator be Blind: The will shall be read
to the testator twice -
i. Once by one of the subscribing
witnesses

Page 85 of 297
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007
ii. Once by the notary public before whom
the will is acknowledged (Art 808)
• NOTE: Articles 807 and 808 are
mandatory, failure to comply with either
would result in nullity and denial of
probate.
2. HOLOGRAPHIC WILL – a holographic will is
valid if it is:
a. In writing and in a language or dialect known
to the testator
b. Entirely written, dated, and signed by the
hand of the testator himself
c. Dispositions of the testator written below his
signature must be dated and signed by him
in order to validate the testamentary
dispositions. (Art 812)
• EXCEPT: In case of dispositions
appearing in a holographic will which are
signed without being dated, where the last
disposition has a signature and a date,
such date validates the dispositions
preceding it, whatever be the time of prior
dispositions
• A holographic will is subject to no other
form, and may be made in or out of the
Philippines, and need not be witnessed.
(Art 810)
PROBATE OF HOLOGRAPHIC WILL
a. There must be at least one witness.
• EXCEPTION: If the will is contested, at
least three of such witnesses shall be
required (merely directory). In the absence
of such competent witness and if the court
deems it necessary, expert testimony may be
resorted to.
b. who knows the handwriting and signature of
the testator
c. must explicitly declare that the will and the
signature are in the handwriting of the
testator. (Art 811)
•
QuickTime™ and a
NOTE: This article decompressor
TIFF (Uncompressed) applies only to post
are needed to see this picture.
mortem probates and not to ante mortem
probates since in such cases the testator
himself files the petition and will identify the
document himself.
Gan v, Yap, 104 Phil 509 – in the probate of a
holographic will, the document itself must be
produced; a lost holographic will cannot be
probated. Exception: When copy of the will is
produced
INSERTION, CANCELLATION, ERASURE OR
ALTERATION IN A HOLOGRAPHIC WILL
a. If made after the execution of the will, but
without the consent of the testator, such
insertion is considered as not written
because the validity of the will cannot be
defeated by the malice or caprice of a third
person
b. If the insertion after the execution of the will
was with the consent of the testator, the will
remains valid but the insertion is void.
c. If the insertion after the execution is validated
by the testator by his signature thereon, then
the insertion becomes part of the will, and the
entire will becomes void, because of failure
to comply with the requirement that it must
be wholly written by the testator
d. If the insertion made by a third person is
made contemporaneous to the execution of
the will, then the will is void because it is not
written entirely by the testator
WHO MAY BE A WITNESS TO A WILL – Any
person may be a witness provided he is:
a. Of sound mind
b. Of the age of 18 years or more
c. Not blind, deaf or dumb
d. Able to read and write
e. Domiciled in the Philippines
f. Have not been convicted of falsification of a
document, perjury or false testimony
CHAPTER 4: LAWS GOVERNING VALIDITY OF A
WILL
1. FORMAL VALIDITY
a. If the testator is a Filipino and the will is
executed in the Philippines then its formal
validity is governed by the CC of the
Philippines
b. If the testator is a Filipino and the will is
executed in a foreign country, then its formal
validity is governed either:
Page 86 of 297
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007
i. By the law of the place where the will
was made
ii. By the CC of the Philippines
c. If the testator is a foreigner and the will is
executed in the Philippines, then its formal
validity is governed either:
i. By the CC of the Philippines
ii. By the law of his own country
d. If the testator is a foreigner and the will is
executed in a foreign country, then its formal
validity is governed either:
i. By the law of the place where the will
was made
ii. By the law of his own country
iii. By the law of the country where he
resides
iv. By the CC of the Philippines
2. SUBSTANTIVE VALIDITY
ASPECTS OF THE WILL GOVERNED BY
NATIONAL LAW OF THE DECEDENT:
a. Order of succession
b. Capacity to succeed
c. Amount of successional rights
d. Intrinsic validity (Art 16)
Intrinsic validity
VALIDITY OF JOINT WILLS
• Two or more persons cannot make a will jointly,
or in the same instrument, either for their
reciprocal benefit or for the benefit of a third
person. (669)
• NOTE: Joint wills executed by Filipinos in a
foreign country shall not be valid in the
Philippines, even though authorized by the laws
of the country where they may have been
executed.
CHAPTER 5: AMENDMENTMENT, REVOCATION
AND REPUBLICATION
QuickTime™ andOF
a WILLS
TIFF (Uncompressed) decompressor
are needed to see this picture.
AMENDMENT OF WILLS
1. Notarial – only through a codicil
2. Holographic – in three ways
a. Dispositions may be added below the
signature, PROVIDED that said dispositions
are also dated and signed, and everything is
written by the hand of the testator himself
b. Certain dispositions or additional matter may
be suppressed or inserted PROVIDED that
said cancellation is signed by the testator
and written by the hand of the testator
himself
c. Through a codicil which may either be
notarial or holographic
ELEMENTS OF A CODICIL
1. It is a supplementary or addition to a will
2. made after the execution of the will
3. and annexed to be taken as a part thereof
4. by which any disposition in the original will may
be explained, added to or altered
REQUISITES FOR INCORPORATION BY
REFERENCE
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
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
REVOCATION OF WILLS
1. By operation of law – instances of revocation by
operation of law:
a. decree of legal separation
b. preterition
c. legacy or credit against third person or
remission of debt was provided in will and
subsequently, testator brings action against
debtor
d. substantial transformation of specific thing
bequeathed
e. when heir, devisee or legatee commits any of
the acts of unworthiness
2. By the execution of a will, codicil or other writing
executed as provided in case of wills
a. EXPRESS – When there is a revocatory
clause expressly revoking the previous will or
a part thereof
Page 87 of 297
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007
b. IMPLIED – When the provisions thereof are
partially or entirely inconsistent with those of
the previous wills
3. By burning, tearing, canceling, 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.
REQUISITES:
a. Testamentary capacity at the time of
performing the act of destruction;
b. Intent to revoke (animus revocandi);
c. Actual physical act of destruction;
d. Completion of the subjective phase; AND
e. Performed by the testator himself or by some
other person in his presence and express
direction
LAWS WHICH GOVERN REVOCATION
1. If the revocation takes place in the Philippines
whether the testator is domiciled in the
Philippines or not,
a. Laws of the Philippines
2. If the revocation takes place outside the
Philippines, by a testator who is domiciled in the
Philippines,
a. Laws of the Philippines
3. Revocation done outside the Philippines by a
testator who is not domiciled in this country,
a. Laws of the place where the will was made;
or
b. Laws of the place in which the testator had
his domicile at the time of the revocation.
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.
EXCEPTION: Molo v. Molo, (90 Phil 37),
When the testator provides in the subsequent
will that the revocation of the prior one is
dependent on the capacity or acceptance of
QuickTime™ and a
the heirs, devisees, or legatees
TIFF (Uncompressed) instituted in the
decompressor
are needed to see this picture.
subsequent will (dependant
revocation)
REVOCATION BASED ON A FALSE OR ILLEGAL
CAUSE
• Revocation based on a false or illegal cause is
null and void. REQUISITES:
a. The cause must be concrete, factual and not
purely subjective
b. It must be false
c. The testator must not know of its falsity
d. It must appear from the will that the testator
is revoking because of the cause which is
false.
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.
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.
FACTS DEMONSTRATING ART 837
• In 1985, X executed Will 1
• In 1987, X executed Will 2, expressly revoking
Will 1
• In 1990, X executed Will 3, revoking Will 1
CONCLUSION ON THE FACTS
• The Revocation of Will 2 by Will 3 does not revive
Will 1
• This demonstrates the theory of instant
revocation because the revocatory effect of the
second will is immediate upon the first will
• NOTE: This article only applies where the
revocation of the first will by the second will is
express.
REPUBLICATION AND REVIVAL OF WILLS
• If the testator wishes to republish a will that is
void as to form, the only way to republish it is to
execute a subsequent will and reproduce it
• The testator need only execute a subsequent will
or codicil referring to the previous will if the
testator wishes to republish a will that is either:
a. Void for reason other than a formal defect
relative b. Previously revoked
REPUBLICATION REVIVAL
Takes place by an act of Takes place by
the testator operation of law
Corrects extrinsic and Restores a revoked will
extrinsic defects
Page 88 of 297
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

at the time of affixing his signature

CHAPTER 6: ALLOWANCE AND DISALLOWANCE thereto.(Art 839)
OF WILLS
REVOCATION DISALLOWANCE
1. PROBATE OF A WILL Voluntary act of the Given by judicial decree
a. A special proceeding required for the purpose of testator
establishing the validity of the will. With or without cause Always for a legal cause
b. Probate of a will is mandatory May be partial or total Always total EXCEPT
c. The probate court can only inquire into the when the ground of fraud
extrinsic validity of testamentary provisions, or influence for example
which include the following: affects only certain
i. That the testator was of sound and disposing portions of the will
mind
ii. That his consent was not vitiated CHAPTER 7: INSTITUTION OF HEIRS
iii. That the will was signed by the required
number of witness INSTITUTION OF HEIR
iv. That the will is genuine 1. It is an act by virtue of which a testator
designates in his will
2. the person or persons who are to succeed him in
EXCEPTION: Nuguid v. Nuguid, 17 SCRA
his property and transmissible
449, the probate court may pass upon the
3. rights and obligations
intrinsic validity of the will when its probate
might become an idle ceremony if on the will’s
REQUISITES FOR A VALID INSTITUTION OF HEIR
face it appears to be intrinsically void.
1. Designation in will of person/s to succeed
a. Directory - designation of name and
surname
b. Mandatory – identity of the heir must be
KINDS OF PROBATE established, otherwise void disposition,
1. Post-Mortem – after the testator’s death unless his identity becomes certain.
2. Ante-Mortem – during his lifetime NOTE: If there is ambiguity in the
designation, the designation must be
FINAL DECREE OF PROBATE resolved by discerning the testator’s intent. If
• Once a decree of probate becomes final in the ambiguity cannot be resolved, intestacy
accordance with the rules of procedure it to that portion results.
becomes Res Judicata 2. Will specifically assigns to such person an
• It is conclusive as to the due execution of the will inchoate share in the estate.
(extrinsic validity only) 3. The person so named has capacity to succeed
4. The will is formally valid
2. DISALLOWANCE OF WILL - grounds for 5. No vice of consent is present
disallowance of a will: 6. No preterition results from the effect of such will

a. If the formalities required by law have not
been complied with;
b. If the testator was insane, or otherwise
mentally incapable of making a will, at the
time of its execution;
c. If it was TIFF
executed
(Uncompressed)through
decompressorforce or under
QuickTime™ and a
are needed to see this picture.
duress, or the influence of fear, or threats;
d. If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or of some other person;
e. If the signature of the testator was procured
by fraud;
f. If the testator acted by mistake or did not
intend that the instrument should be his will
THREE PRINCIPLES IN THE INSTITUTION OF
HEIRS
1. Equality – heirs who are instituted without a
designation of shares inherit in equal parts
2. Individuality – heirs collectively instituted are
deemed individually named unless a contrary
intent is proven
3. Simultaneity – when several heirs are instituted,
they are instituted simultaneously and not
successively
RULES ON A PERSON’S RIGHT TO DISPOSE OF
HIS ESTATE

Page 89 of 297
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

1. If one has no compulsory heirs: a. A devise or legacy has been given to the heir
a. He can give his estate to any person b. A donation inter vivos has been previously
qualified to inherit under him given to the heir
b. However, he must respect restrictions c. Anything is left from the inheritance which the
imposed by special laws heir may get by way of intestacy
2. If one has compulsory heirs:
a. He can give only the disposable portion to EFFECTS OF PRETERITION:
strangers 1. The institution of heir is annulled
b. Legitimes of compulsory heirs must be 2. Devises and legacies shall remain valid as long
respected as they are not inofficious
3. If the omitted compulsory heir should die before
REQUISITES FOR THE ANNULMENT OF the testator, the institution shall be effectual,
INSTITUTION OF HEIRS: without prejudice to the right of representation
1. Cause of institution of the heirs must be stated in
will DISTINGUISH PRETERITION FROM
2. Cause must be shown to be false DISINHERITANCE
3. It appears from the face of the will that the PRETERITION DISINHERITANCE
testator would not have made the institution had Deprivation of a Deprivation of the
he known the falsity of the cause. compulsory heir of his compulsory of his legitime
legitime is tacit is express
RULES ON INSTITUTION OF ALIQUOT SHARE May be voluntary but Always voluntary
LESS THAN OR IN EXCESS OF THE WHOLE the law presumes that it
ESTATE: is involuntary
Law presumes that Done with a legal cause
1. Intestacy Results if there has been merely
a. the heir institutes an aliquot portion of the an oversight or mistake
estate on the part of the
b. to only one heir If the heir institutes several testator
heirs to an aliquot part of the Omitted heir gets not If disinheritance is
2. Each heir’s share shall be proportionally increased: only his legitime but also unlawful, compulsory heir
a. There are more than one instituted heir his share in the free is merely restored to his
b. The testator intended the heirs to inherit the portion not disposed of legitime
whole estate by way of legacies or
c. The aliquot parts of each share do not cover devises
the whole inheritance
3. Each heir’s share shall be proportionally CHAPTER 8: SUBSTITUTION OF HEIRS
decreased:
a. There are more than one instituted heir CLASSES OF SUBSTITUTION:
b. The testator intended the heirs to inherit the
whole estate 1. Vulgar or Simple – the testator may designate
c. The aliquot parts of each share exceed the one or more persons to substitute the heir or
whole inheritance heirs instituted in case such heir or heirs should:
a. die before him (PREDECEASE)
PRETERITION b. should not wish, (RENOUNCE) or
c. should be incapacitated to accept the
1. There must be an omission of one, some or all of inheritance (INCAPACITATED)
QuickTime™ and a
the heir/s in the
TIFFwill
(Uncompressed) decompressor 2. Brief or Compendious – two or more persons
are needed to see this picture.
2. The omission must be that of a COMPULSORY may be substituted for one; and one person for
HEIR two or more heirs
3. Compulsory heir omitted must be of the DIRECT 3. Reciprocal – if heirs instituted in unequal shares
LINE should be reciprocally substituted, the substitute
4. The omitted compulsory heir must be LIVING at shall acquire the share of the heir who dies,
the time of testator’s death or must at least have renounces, or incapacitated, unless it clearly
been CONCEIVED before the testator’s death appears that the intention of the testator was
5. The omission must be complete and total otherwise. If there are more than one substitute,
in character. : There is no omission if

Page 90 of 297
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007
they shall have the same share in the substitution
as in the institution
4. Fideicommissary Substitution - if the testator
institutes an heir with an obligation to deliver to
another the property so inherited. The heir
instituted to such condition is called the first heir
or fiduciary heir, the one to receive the property is
the fideicommissary or second heir
REQUISITES FOR A FIDEICOMMISSARY
SUBSTITUTION:
1. A fiduciary or first heir instituted entrusted with
the obligation to preserve and to transmit to a
fideicommissary substitute or second heir the
whole or part of the inheritance
2. Such substitution must not go beyond one
degree from the heir originally instituted
3. The fiduciary or first heir and the second heir are
living at the time of the death of the testator
4. The fideicommissary substitution must be
expressly made
5. The fideicommissary substitution is imposed on
the free portion of the estate and never on the
legitime
• NOTE: Pending the transmission of the property,
the fiduciary is entitled to all the rights of a
usufructuary although the fideicommissary is
entitled to all the rights of a naked owner.
CHAPTER 9: CONDITIONAL TESTAMENTARY
DISPOSITIONS AND DISPOSITIONS WITH A
TERM
TESTAMENTARY DISPOSITIONS
1. Condition – future or uncertain event, or a past
event unknown to the parties, upon which the
performance of an obligation depends
2. Term – the day or time when an obligation either
becomes demandable or terminates
3. Modal Institution – the statement of the
institution; application of the property left by the
testator or the charge imposed on him
4. Disposicion Captatoria – condition that the heir
shall make some provision in his will of the
testator or of any other person (prohibited
QuickTime™ and a
because it willTIFF
make the making
(Uncompressed) decompressorof the will a
are needed to see this picture.
contractual act)
5. Causal Condition – condition us casual if it
depends upon chance and/or upon the will of a
third person
6. Mixed Condition - It is mixed if it depends both
partly upon the will of the heir himself and upon
chance and/or the will of a third person
7. Potestative Condition – one the fulfillment of
which depends purely on heir
8. Suspensive term – one that merely suspends
the demandability of a right. It is sure to happen
9. Caucion Muciana – bond or security that should
be given in favor of those who would get the
property if the condition not be complied with
INTERPRETATION
• When in doubt whether there is a condition or
merely a mode, consider the same as mode
• When in doubt as to whether there is a mode or
merely a suggestion, consider same only as a
suggestion
• The condition suspends but does not obligate,
the mode obligates but does not suspends (for he
who inherits with a mode is already an heir; one
who inherits conditionally is not yet an heir.)
RULES ON POTESTATIVE, CASUAL AND MIXED
CONDITIONS
1. POTESTATIVE
Positive Potestative Condition:
• General Rule – must be fulfilled as soon as the
heir learns of the testator’s death
• EXCEPTION
a. the condition was already complied with at
the time the heir learns of the testator’s death
b. the condition is of such nature that it cannot
be fulfilled again
Negative Potestative Condition:
• Heir must give security to guarantee the return of
the value of property, fruits, and interests, in
cases of contravention
2. CASUAL OR MIXED
Positive
• GENERAL RULE – may be fulfilled at any other
time (before testator’s death), unless testator
provides otherwise.
• If ALREADY FULFILLED at the time of
execution of the will
a. If testator unaware of fact of fulfillment-
deemed fulfilled
b. If testator aware thereof –
i. If it can no longer be fulfilled again –
deemed fulfilled
ii. If it can be fulfilled again – must be
fulfilled again
Constructive Compliance
a. if casual – not applicable
Page 91 of 297
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

b. if mixed – i. On the offending spouse –

i. If dependent partly on chance – not disqualified
applicable ii. On the innocent spouse – no effect
ii. If dependent partly on will of third party – c. Death of either spouse during the
1. if 3rd party interested – applicable pendency of a petition for legal
2. if 3rd party not interested – not separation – dismissal of the case
applicable • Illegitimate children and descendants
(legitimate or illegitimate)
EFFECTS OF SUSPENSIVE CONDITION OR TERM

• The estate shall be placed under administration Testator is a Legitimate Testator is an

until Person Illegitimate Person
1. condition is fulfilled Legitimate children and Legitimate children and
2. until it becomes certain condition will never be descendant descendants
fulfilled In default of the Illegitimate parents and
3. until arrival of the term foregoing, legitimate ascendants
parents and ascendants
CONDITIONS PROHIBITING MARRIAGE Surviving spouse In default of the
foregoing, illegitimate
1. If a first marriage is prohibited – condition parents only
considered always as not imposed Illegitimate children and Surviving spouse
2. If a subsequent marriage is prohibited as descendant
imposed by the deceased spouse or by his/her
ascendants or descendants - valid GENERAL RULES IN ASCERTAINING LEGITIMES
3. if a subsequent marriage is prohibited and
imposed by anyone else- considered not written 1. Direct descending line
a. Rule of preference between lines
CHAPTER 10: LEGITIMES b. Rule of proximity
c. Right of representation ad infinitum in case of
• The portion of the decedent’s estate reserved by predecease, incapacity or disinheritance
law is called the legitime. 2. Direct ascending line
• The heirs for whom the law reserves such portion a. Rule of division by line
are called compulsory heirs. b. Rule of equal division

CLASSES OF COMPULSORY HEIRS 3. Non-impairment of legitime - Any compulsory

heir who was given title less than his legitime
1. Primary – those who have precedence over and may demand that the same be completed (Art
exclude other compulsory heirs 906)
• Legitimate children and descendants EXCEPTIONS:
(legitimate), with respect to their legitimate a. If the predecessor gave the compulsory heir
parents and ascendants a donation inter vivos and provided that it
2. Secondary – those who succeed only in the was not charged against the legitime (Art
absence of the primary heirs 1062)
• Legitimate parents and ascendants b. Testamentary dispositions made by the
(legitimate), with respect to their legitimate predecessor to the compulsory heir, unless
children and descendants the testator provides that it should be
QuickTime™ and a
3. Concurring –TIFFthose who decompressor
(Uncompressed) succeed together with considered part of the legitime.
are needed to see this picture.
the primary or the secondary compulsory heirs
• Widow or widower (legitimate) – the surviving SHARES OF COMPULSORY HEIRS
spouse referred to is the spouse of the
decedent. 1. Legitimate Children or Descendants -
• NOTE:
Share of legitimate children ½ of the net estate
a. Mere estrangement is not a ground for and descendants
the disqualification of the surviving Free portion ½ of the net estate
spouse as heir
b. Effect of decree of legal separation:

Page 92 of 297
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007
2. Legitimate Parents and Ascendants Surviving spouse Equal to the portion of the
legitime of each legitimate
Share of legitimate parents ½ of the net estate child
and ascendants Illegitimate children ½ of the share of each
Free portion of the estate ½ of the net estate legitimate child
Free portion Whatever remains
3. One legitimate child or descendant; Surviving
spouse; 10. Surviving spouse; Legitimate parents or
ascendants; Illegitimate children
Share of a legitimate child ½ of the net estate
Share of the surviving spouse ¼ of the net estate Share of legitimate parents ½ of the net estate
Free disposable portion ¼ of the estate and ascendants
Surviving spouse 1/8 of the estate
4. Illegitimate children, legitimate children; Illegitimate children ¼ of the estate
Free portion 1/8 of the estate
Share of children and ½ of the net estate
descendants 11. Surviving spouse only; Exception: Marriage in
Share of each illegitimate ½ of the legitime of each articulo mortis
children legitimate children or
ascendant Surviving spouse only ½ of the net estate
Free portion Whatever remains Free portion ½ of the estate

5. Two or more legitimate children or descendant; Surviving spouse only 1/3 of the net estate
surviving spouse (marriage in articulo mortis)
Free portion 2/3 of the estate
Share of legitimate children ½ of the net estate
Share of the surviving Portion equal to the legitime 12. Illegitimate children only.
spouse of each of the legitimate
children or descendant Share of illegitimate children ½ of the net estate
Free disposable portion Whatever remains Free portion ½ of the estate

6. Legitimate parents or ascendants; Surviving 13. Illegitimate parents only; With illegitimate and
spouse legitimate children or descendant; With surviving
spouse.
Share of legitimate parents or ½ of the net estate
ascendants Share of illegitimate parents ½ of the net estate
Share of the surviving spouse ¼ of the free portion only
Free disposable portion ¼ of the estate Free portion ½ of the estate

7. Illegitimate children, surviving spouse Share of illegitimate parents ¼ of the net estate
Share of the surviving ¼ of the estate
Share of illegitimate children 1/3 of the net estate spouse
Share of surviving spouse 1/3 of the net estate Free portion ½ of the estate
Free portion 1/3 of the net estate

STEPS IN DETERMINING THE LEGITIME OF

8. Legitimate parents or ascendants; Illegitimate
children
COMPULSORY HEIRS:

Share of legitimate parents ½ of the net estate 1. Determination of the gross value of the estate at
and ascendants QuickTime™ and a the time of the death of the testator;
TIFF (Uncompressed) decompressor
Illegitimate children are needed to see
¼this
ofpicture.
the net estate 2. Determination of all debts and charges which are
Free portion ¼ of the estate chargeable against the estate;
3. Determination of the net value of the estate by
9. Surviving spouse; Legitimate children and deducting all the debts and charged from the
descendant; Illegitimate children gross value of the estate;
4. Collation or addition of the value of all donations
Share of legitimate children ½ of the net estate inter vivos to the net value of the estate;
and descendants
5. Determination of the amount of the legitime from
the total thus found;

Page 93 of 297
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007
6. Imputation of all the value of all donations inter
vivos made to compulsory heirs against their
legitimes and of the value of all donations inter
vivos made to strangers against the disposable
free portion and restoration to the hereditary
estate if the donation is inofficious.
7. If legitime is impaired, the following reductions
shall be made:
a. First, reduce pro-rata non-preferred legacies
and devises, and the testamentary
dispositions.
b. Second, reduce pro rata the preferred
legacies and devises
c. Third, reduce the donations inter vivos
according to the inverse order of their dates
8. Distribution of the residue of the estate in
accordance with the will of the testator.
CHAPTER 11: RESERVA TRONCAL
Reserva Troncal - The reservation by virtue of
which an ascendant who inherits from his
descendant any property which the latter may have
acquired by gratuitous title from another ascendant
or a brother or sister, is obliged to reserve the
property form the benefit of relative within the 3rd
degree and who belong from the same line from
which the property came from.
• It constitutes as an exception to both the system
of legitime and the order of intestate succession.
PURPOSE OF RESERVA TRONCAL:
1. To reserve certain properties in favor of certain
persons;
2. To prevent person outside a family from
acquiring, by some chance or accident, property
which otherwise would have remained with the
said family;
3. To maintain a separation between paternal and
maternal lines.
REQUISITES OF RESERVA TRONCAL
1. The property should have been acquired by
operation of
QuickTime™ and a
law
TIFF (Uncompressed) by
decompressor an ascendant
(RESERVISTA)
are needed to see this picture.
from his descendant
(PROPOSITUS) upon the death of the latter.
NOTE: by operation of law is limited to
succession, either by legitime or intestacy
2. The property should have been previously
acquired by gratuitous title by the propositus
from another ascendant or from a brother or
sister (ORIGINATOR).
NOTE: gratuitous encompasses transmissions by
donation and succession.
3. The propositus should have died without any
legitimate issue in the direct descending line who
could inherit from him.
NOTE: Nieva v. Alcala, 41 Phil 495, all
relationships must be legitimate
PERSONAL ELEMENTS
1. ORIGINATOR – the ascendant, brother or sister
from whom the propositus had acquired the
property by gratuitous title
2. PROPOSITUS – The descendant who died and
from whose death the reservistas in turn had
acquired the property by operation of law. The so
called “ARBITER OF THE FATE OF THE
RESERVA TRONCAL.”
Note: Prepositus can terminate the reserva by:
a. Substituting or alienating the property
b. By bequeathing or devising it either to the
potential reservista or to other third person
c. By partitioning it and assigning the property
to parties other than the reservista
3. RESERVISTA – The ascendant, not belonging to
the line from which the property came that is the
only compulsory heir and is obliged to reserve
the property.
4. RESERVATARIOS – The relative of the
propositus within the 3rg degree and who belong
to the line from which the property came and for
whose benefit reservation is constituted. They
must be related by blood not only to the
propositus but also to the originator.
• NOTE: The Civil Code did not provide for the
rules on how the reservatarios would
succeed to the reservista. However, the
following rules on intestacy have been
consistently applied:
a. Rule of preference between the lines
b. Rule of proximity
c. Right of representation – provided that the
representative is a relative within the 3rd
degree, and that he belongs to the line from
which the reservable property came
d. “full blood/double share” rule in Article 1006
NOTE: Gonzales v. CFI, 104 Phil 479, the
reservista had no power to appoint, by will, which
reservatarios were to get the reserved property
Page 94 of 297
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

2. Representation
RIGHT OF THE RESERVATARIOS OVER THE 3. Accretion
RESERVABLE PROPERTY
DISINHERITANCE
1. Death of Propositus – qualified reservatario
merely acquire an inchoate right. The reservistas 1. Heir is being deprived of his legitime.
own the property subject to the resolutory 2. Only in cases of testate succession.
condition 3. Counterpart in intestate is unworthiness.
2. Death of Reservista – surviving reservatarios 4. Will containing disinheritance must be probated.
acquire a perfect right. 5. Effect: Heir loses legitime.
6. However, the disinherited heir can be
RIGHT OF THE RESERVISTA OVER THE represented in the legitime.
RESERVABLE PROPERTY a. Only in the descending line, never in the
ascending
1. The right of the reservista over the reserved b. In collateral line, only with respect to
property is one of ownership nephews and nieces.
2. The ownership is subject to a resolutory condition 7. In the free portion, SAI
3. the right of ownership is alienable 8. Even if validly disinherited, heir can still be validly
4. The right of ownership is registrable restored in the legitime by RECONCILIATION.
9. Reconciliation – when in “speaking terms again,”
no particular form
Reserva Maxima Rerserva Minima 10. In unworthiness, there must a pardon in writing to
Much of the potentially Every single property in remove incapacity to inherit. However, it does not
reservable property as the Prepositus estate have to be in a will.
possible must be demed must be deemed to 11. If grounds for disinheritance and unworthiness
included in the part that pass, partly by will and are common, reconciliation does not erase the
passes by operation of partly by operation of
law law, in the same
fact that the heir is unworthy.
proportion that the part 12. As long as there is reconciliation, it should be
given by will bears to the considered to have revoked the inheritance as
part not so given well as the unworthiness.
Maximizes the scope of Minima finds wider 13. Ineffective disinheritance v. Preterition
reserva acceptance here
REQUIREMENTS FOR VALID DISINHERITANCE
EXTINGUISHMENT OF RESERVA TRONCAL
1. The death of the Reservista 1. Effected only through a valid will;
2. The death of the all the Reservatorios’ 2. For a cause expressly stated by law;
3. Renunciation by all Reservatorios, provided none 3. Cause must be expressly state in the will itself;
is born subsequently 4. Cause must be certain and true;
4. Total Fortuitous loss of the reserved property 5. Unconditional;
5. Confusion or merger of rights 6. Total; AND
6. Prescription or adverse possession 7. The heir disinherited must be designated in such
a manner that there can be no doubt as to his
identity.
CHAPTER 12: DISINHERITANCE
GROUNDS FOR DISINHERITANCE

CAUSES OF VACANCY IN SUCCESSION

QuickTime™ and a
TIFF (Uncompressed) decompressor
Grounds for Disinheritance Common To All
are needed to see this picture. Compulsory Heirs
1. Disinheritance - The testator creates it himself
2. Repudiation - The heir does something 1. Attempt on the life of testator, spouse,
3. Incapacity/Predecease - Something happens to ascendant, descendant
the heir a. Conviction necessary
b. In case of spouse, giving cause for legal
HOW VACANCIES ARE FILLED separation, no conviction needed
c. Include both attempted and frustrated.
1. Substitution

Page 95 of 297
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

d. Attempt on life of relatives, may be Grounds for Disinheritance Only against

consummated.
2. Accusation of a crime with penalty of six
years or more.
a. Penalty imposable, not actually imposed.
b. Made by the heir in a proceeding as a
complainant or witness in a criminal case.
c. Found to be groundless, false.
d. Groundless – court should make a positive
finding that the testator has not committed
the crime. It is then false.
e. Chismis – not the one referred here, it is
outside criminal proceeding.
3. Induce testator to make/change the will.
a. Will – purely personal
b. Vices of consent.
c. It does not punish the result but the
interference in the making/changing of the
will.
d. Will + disinheritance (will making)
e. Will + amended will + disinheritance (will
changing)
4. Support unjustifiably not given.
a. Must prove obligation to give support
b. Spouses: mutual obligation to give support
c. Reason must be unjustifiable
Grounds for Disinheritance Common between
Ascendants and Descendants
• Adultery and Concubinage – with the spouse of
the testator
1. It must be the heir who committed such liaison
2. With the legal spouse of the testator
3. Not necessarily incestuous
4. Applicable to both legitimate and illegitimate
descendant
Grounds for Disinheritance Common Ascendant
and Spouse (in addition to A, B)
• Loss of parental authority
1. Causes: Arts. 230, 231, 232 of the Family Code
2. Ascendant of testator
3. Spouse has TIFFgiven causedecompressor
for loss of parental
QuickTime™ and a
(Uncompressed)
authority. are needed to see this picture.
4. No actual deprivation, but it must exist. It means
that the act is committed which may be a cause
for loss of parental authority over their common
children, EXCEPT for those enumerated in A.
5. There are no common grounds between spouse
and descendants.
Descendant
1. Maltreatment of testator
a. By word – slander, offensive language,
insult, libel. May be spoken or written.
b. By deed – no need for violence,
something which caused the testator to
be humiliated. Laying hands if not under
attempt on life.
2. Leading a disgraceful life (or dishonest)
i.e., daughter living with a married man,
estafadora, prostitutes, drug dealers, drug
addict.
3. Commission of crime which carries with it the
penalty of civil interdiction
a. Descendant convicted of crime with civil
interdiction. Necessarily imposable, not
actually imposed.
b. Reclusion temporal, reclusion perpetua.
Ground for Disinheritance Only against
Ascendants (Parents)
1. Abandonment by parents
a. Willfully left the children to fend for
themselves
b. Abdication of parental duties.
c. Only refers to abandoned child.
d. Induced daughters to lead a disgraceful life –
also applicable to sons.
2. Attempt on the life of one parent against
another parent.
a. Parent v. parent
b. Even if parents are not married, it is still a
ground.
c. No need for conviction. As long as the heir
can prove that there is an attempt.
d. They do not need to be spouses. However,
the testator must be a common child.
Grounds for Disinheritance Only against spouse
– refers to legal spouses only, legally married to
each other
1. Giving cause for legal separation
a. No need for previous conviction
b. Prove infidelity if cause is contested
c. No need to prove grounds unless contested
by the heir.
d. Legal separation instituted but not
terminated, OK
e. If there is already a decree:
i. Ground is conclusive
ii. But, there is a need to disinherit

Page 96 of 297
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

iii.Effects: Guilty spouse is not entitled to is the effect of a subsequent reconciliation upon
inherit. the heir’s capacity to succeed?
f. See 10 causes under the Family Code. 1. If disinheritance has been made: Rule on
2. Support – refusal to give support to the children reconciliation applies, the disinheritance
a. Offended the testator becomes ineffective
b. Common children of the testator and the 2. If disinheritance has not been made: The rule on
spouse reconciliation does not apply, the heir continues
c. Spouse refuses to give support to the child to be incapacitated to succeed unless the testator
d. Parents share in support of their common pardoned him under Art. 1033.
children. Refusal of the other spouse causes
damage to the other. (testator) CHAPTER 13: LEGACIES AND DEVICES

IMPERFECT DISINHERITANCE PERSONS CHARGED WITH LEGACIES AND

DEVICES:
Imperfect Disinheritance - Disinheritance which
1. Compulsory heir;
does not have one or more of the essential
2. Voluntary heir;
requisites for its validity.
3. Legatee or devisee;
4. Estate.

EFFECTS OF IMPERFECT DISINHERITANCE • If the will is silent as to who shall pay or deliver
the legacy/devise, there is a presumption that
1. If the testator had made disposition of the entire such legacy or devise constitutes a charge
estate; annulment of the testamentary disposition against the decedent’s estate
only in so far as they prejudice the legitime of the • Since legacies and devises are to be taken from
person disinherited; does not affect the the disposable free portion of the estate, the
dispositions of the testator with respect to the provisions on institution of heirs are generally
free portion applicable to them
2. If the testator did not dispose of the free portion;
compulsory heir given all that he is entitled to ORDER OF PAYMENT IN CASE ESTATE IS
receive as if the disinheritance has not been INSUFFICIENT TO COVER ALL LEGACIES AND
made, without prejudice to lawful dispositions DEVICES
made by the testator in favor of others
3. Devisees, legacies and other testamentary 1. Remuneratory legacies or devises
dispositions shall be valid to such extent as will 2. Legacies or devises declared by the testator to
not impair the legitime be preferential
3. Legacies for Support
IMPERFECT PRETERITION 4. Legacies for Education
DISINHERITANCE 5. Legacies or devises of a specific, determinate
Person disinherited may be The person omitted must thing which forms a part of the
any compulsory heir be a compulsory heir in the
6. estate
direct line
Always express Always implied
7. All others, pro-rata
Always intentional May be intentional or
unintentional WHEN LEGACY/DEVISE CAN BE REVOKED BY
Effect: partial annulment of Effect: total annulment of OPERATION OF LAW
institution of heirs institution of heirs
QuickTime™ and a
TIFF (Uncompressed) decompressor 1. If the testator transform the thing bequeathed or
are needed to see this picture.
REVOCATION OF DISINHERITANCE devised in such a manner that it does not retain
1. Reconciliation its form and denomination
2. Subsequent institution of the disinherited heir 2. If the testator, by any title or for any cause,
3. Nullity of the will which contains the alienates the thing bequeathed or devised or any
disinheritance part thereof
3. If the thing bequeathed or devised is totally lost
• NOTE: Where the ground for disinheritance is during the lifetime of the testator, or after his
also a ground for unworthiness to succeed, what death without the heir’s fault

Page 97 of 297
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007
4. If the legacy is a credit against a third person or
the remission of a debt, and the testator,
subsequent to the making of the will brings an
action against such debtor for payment
VALIDITY AND EFFECT OF LEGACY/DEVISE
Please Refer to Succession Table 1
GROUNDS FOR REVOCATION OF LEGACIES OR
DEVISES
1. Testator transforms the thing bequeathed in such
a manner it does not retain either the form or the
denomination it had.
2. 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 only with
respect to the part alienated
EXCEPT: when the thing should again belong to
the testator after alienation.
3. The thing bequeathed is totally lost during the
lifetime of the testator, or after his death without
the heirs fault;
4. Other Causes: nullity of the will; noncompliance
with suspensive conditions affecting the
bequests; sale of the thing to pay the debts of the
deceased during the settlement of his estate.
CHAPTER 14: GENERAL PROVISIONS ON LEGAL
OR INTESTATE SUCCESSION
CAUSES OF INTESTATE SUCCESSION IN
GENERAL
1. In the absence of applicable valid will
a. Annulment of institution of heirs.
b. When will loses its validity.
c. Testator did not make any will.
d. Will not probated.
e. Revocation. QuickTime™ and a
TIFF (Uncompressed) decompressor
f. Preterition are needed to see this picture.
2. In the absence of qualified heirs
a. Ineffective disinheritance (a portion)
b. Repudiation (one or all)
c. Incapacity
d. Disinheritance
e. Institution subject to conditions
i. Suspensive condition did not happen
ii. Resolutory condition happens.
iii. Expiration of term or period of institution
BASIC PRINCIPLES IN INTESTATE SUCCESSION
1. Intestate heirs always related by blood.
Except:
a. Spouse - not related by blood, stranger in the
family
b. Adoptive relation – adopter/adopted, fiction
by law created by adoption, purely personal
c. State – in the event no heir can inherit.
2. The nearer excludes the farther (rule of
proximity) – the relative nearest in degree
exclude the farther one.
3. Direct line is always preferred over collateral
4. Ascending line is always preferred over collateral
5. Descending line is always preferred over
ascending and collateral lines.
6. Rule of equal division– – the relatives who are
in the same degree shall inherit in equal shares
same class
Exception:
a. Descending line – difference in class in the
cases of legitimate or illegitimate filiation.
i. In case of paternal/maternal lines
ii. Collateral – half or full blood
b. Ascending line – the shares are divided
equally between maternal and paternal lines,
which could result to unequal shares when
there is only one grandparent in the maternal
line while both grandparents survived in the
paternal side.
NOTE: In all cases where there has been an
institution of heirs, follow the I.S.R.A.I. order of
Justice Paras. If the Institution fails, Substitution
occurs. If there is no substitute, right of
Representation applies in the direct descending line
to the legitime of the vacancy is caused by
predecease, incapacity or disinheritance. The right of
Accretion applies to the free portion when the
requisites in Article 1016 are present. If there is no
substitute, and the right of representation or accretion
does not apply, the rule of Intestate succession shall
take over.
REPRESENTATION - Instances when
Representation Occurs:
1. Predecease
2. Incapacity of Unworthiness
3. Disinheritance
• NOTE: In case of repudiation, accretion takes
place.
Sayson v. CA, 205 SCRA 324, although a
renouncer cannot be represented, he can
Page inheritance
represent the person whose 98 of 297 he has
renounced.
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

IN WHAT KINDS OF SUCCESSION

REPRESENTATION OPERATES
QUALIFICATIONS TO REPRESENT
1. Legitimes
• The children and descendants of the person 1. The representative himself must have capacity to
disinherited shall take his or her place and shall succeed the decedent
preserve the rights of compulsory heir with 2. The representative need not be qualified to
respect to the legitime (Art 923) succeed the person represented.
• And only when the heir to be represented:
a. Predecease, becomes incapacitated, or was HOW REPRESENTATION OPERATES
disinherited by the testator.
b. Is a compulsory heir. ƒ Division shall be made PER STIRPES.
c. No right of representation if the heir to be Factual Situation Division
represented is a voluntary heir. If all the children are All grandchildren still
2. Intestate succession disqualified inherit per stirpes
If all the brothers /sisters Nephews and nieces
• Representation occurs in all intestate estate. All
are disqualified inherit per capita
legal heirs may be represented when proper. (It
is not proper only when the heir to be
represented repudiated his share in the
THE SUCCESSIONAL BARRIER
inheritance)
• An illegitimate child has no right to inherit ab
IN WHAT LINES DOES REPRESENTATION
intestato from the legitimate children and
OBTAIN
relatives of his father or mother; nor shall such
children or relatives inherit in the same manner
1. Legitime - in the direct descending line only.
from the illegitimate child. (Art 992)
Representation does not exist in the ascending
line. Hence, the father cannot represent the son • The Barrier rule only applies if there is a
in the inheritance from the grandfather. legitimate and illegitimate relation. Example: A is
2. Intestacy: the legitimate son of B. C is the illegitimate son of
a. In the direct descending line. A. C cannot inherit from B if A predeceases, or
b. In the collateral line, it takes place only in becomes incapacitated or be disinherited by B.
favor of the children of brother or sisters
(nieces and nephews of the decedent, not
grand-nieces or grand-nephews). NOTE: If CHAPTER 15: ORDER OF INTESTATE
all the brothers and sisters are disqualified, SUCCESSION
the nephews and nieces shall inherit per
capita. INTESTATE HEIRS

REPRESENTATION OF ILLEGITIMATE OR 1. Legitimate Children/Descendants

ADOPTED CHILDREN 2. Illegitimate Children/Descendants
3. Legitimate Parents/ Ascendants
1. If the child to TIFF QuickTime™ and a
be (Uncompressed)
represented is legitimate – only 4. Illegitimate Parents
decompressor
are needed to see this picture.
legitimate children and descendants can 5. Surviving Spouse
represent him. 5. Brothers, Sisters, Nephews, Nieces
2. If the child to be represented is illegitimate – both 6. Other Collaterals – to the 5th degree
legitimate and illegitimate children/descendants 7. State
can represent him.
2. An adopted child can neither represent nor be RULES OF EXCLUSION AND CONCURRENCE
represented Please Refer to Succession Table 2

Teotica v. Del Val, 13 SCRA 406, the

rationale why an adopted child can neither
represent or be represented is because the Page 99 of 297
legal relationship created by the adoption is
strictly between the adopter and the adopted
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007
WHEN DECEDENT HAS NO HEIRS
1. Assignment and Disposition of Assets
a. if decedent is a resident of the Philippines at
any time
i. Personal property – to the municipality of
last residence
ii. Real property – where situated
b. If decedent was never a resident of the
Philippines
i. Personal and real property – where
respectfully situated
2. How Property is to be Used
a. For the benefit of public educational and
charitable institutions in the respective
municipalities/cities
b. Alternatively, at the instance of an interested
party, or motu proprio, the court may order
the permanent trust for the benefit of the
institutions concerned
CHAPTER 16: PROVISIONS COMMON TO
INTESTATE AND INTESTATE SUCCESSION
RIGHT TO ACCRETION
1. In Testamentary Succession
a. Predecease
b. Incapacity
c. Repudiation
d. Non-fulfillment of suspensive condition
imposed upon instituted heir
e. Ineffective testamentary disposition
2. In Intestate Succession
a. Predecease of a legal heir (only when
representation does not apply)
b. Incapacity of legal heir (only when
representation does not apply)
c. Repudiation by a legal heir
ELEMENTS OF ACCRETION IN TESTAMENTARY
SUCCESSION
1. Two or more persons are called to the same
inheritance, or to the same portion thereof, pro
indiviso (aliquot
TIFFshare)
QuickTime™ and a
(Uncompressed) decompressor
are needed to see this picture.
a. In cases of legacy or devise, as long as there
is no specific designation of the specific
share of each legacy or devise.
b. Not necessarily equal.
c. Once a certain specific part of the free
portion has already been specifically
earmarked, there is no accretion and there is
no express provision on accretion.
d. But, it is okay to earmark parts of the free
portion as long as no specific property has
been designated.
• NOTE: The heir to whom the portion goes by
the right of accretion takes it in the same
proportion that they inherit
2. Renunciation, predecease or incapacity of one
(or more but less than all) of the instituted heirs.
FUNDAMENTAL PRINCIPLES IN ACCRETION
1. Accretion in testate succession only takes place in
the free portion. No accretion in the legitime
because when the compulsory heir repudiates his
legitime, the other co-compulsory heir inherits the
repudiated share in their own right and not
through accretion. If the cause of the vacancy is
PID, representation will occur.
2. Accretion also takes place in cases of devisees
and legatees and usufructuaries under the same
conditions established for heirs.
3. Accretion is subordinate to substitution, because
substitutes are instituted by the testator; hence,
express will prevails over presumed will.
• NOTE: if there is neither accretion nor
substitution in testamentary succession, the part
left vacant will lapse into testacy
4. The one that the heir gets from accretion can be
renounced separate from the inheritance
attributed to the heir who will renounced the
accrued inheritance.
CAPACITY TO SUCCEED
The following are capable of succeeding:
1. Natural Persons
a. General Rule – must be living when
succession opens. NOTE: It is enough that
the heir, devisee or legatee be already
conceived in accordance with Arts 40 and 41,
to be considered living.
b. If institution subject to a suspensive
condition – successor must be living both
when decedent dies and when the
condition happens
c. If institution subject to a suspensive term –
must be alive only at the moment of
decedent’s death, successor need not be
alive when the term alives.
2. Juridical Persons
a. Organizations or associations which
possess juridical personality
Page 100 of 297
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007
WHO ARE INCAPABLE OF SUCCEEDING
1. Those Prohibited under Art 1027
a. 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
b. Relatives of such priest or minister of the
gospel within the 4th degree, the church,
order, chapter, community, organization, or
institution to which such priest or minister
may belong
c. 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;
EXCEPT if the guardian is his ascendant,
descendant, brother, sister, or spouse
d. Attesting witness to execution of will, their
spouses, parents, children or any one
claiming under such witness, spouse,
parents or children
e. Physician, surgeon, nurse, health officer or
druggist who took care of the testator during
his last illness
f. Individuals, associations, and corporations
not permitted by law to inherit
2. Those prohibited under Art 739 from giving and
receiving donation from each other.
a. Those made between persons who were
guilty of adultery or concubinage at the time
of the donation;
b. Those made between persons found guilty of
the same criminal offense, in consideration
thereof;
c. Those made to a public officer or his wife,
descedants and ascendants, by reason of his
office.
3. The following are incapable of succeeding by
reason of unworthiness:
a. Parents who have abandoned their children
or induced their daughters to lead a corrupt
or immoral life, or attempted against their
virtue;
b. Any person who has been convicted of an
attempt against QuickTime™ and a
the lifedecompressor
TIFF (Uncompressed) of the testator, his or
are needed to see this picture.
her spouse, descendants, or ascendants;
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 has been found groundless;
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;
e. Any person convicted of adultery or
concubinage with the spouse of the testator;
f. Any person who by fraud, violence,
intimidation, or undue influence should cause
the testator to make a will or to change one
already made;
g. 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;
h. Any person who falsifies or forges a
supposed will of the decedent. (756, 673,
674a)
• NOTE: 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. (757a)
ADDITIONAL NOTES
1. The capacity to succeed is governed by the law
of the nation of the decedent.
2. Persons not incapacitated by law may succeed
by will or ab intestato.
3. If the heir excluded from the inheritance by
reason of incapacity is a compulsory heir, and if
such compulsory heir has children or
descendant, the latter shall acquire the
incapacitated heir’s right to the legitime (by
representation.).
4. 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. (755)
ACCEPTANCE OF INHERITANCE – Two kinds:
1. Express
a. Public Document
b. Private Writing
2. Tacit Acceptance
a. When heir sells, donates, or assigns his right.
b. When heir renounces it for the benefit of one
or more heirs.
c. When renunciation is in favor of all heirs
indiscriminately for consideration
d. Other acts of tacit acceptance:
i. Heir demands partition of the inheritance
Page 101 of 297
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007
ii. Heir alienates some objects of the
inheritance
iii. Under Article 1057, failure to signify
acceptance or repudiation within 30 days
after an order of distribution by the
probate court.
CHARACTERISTICS OF REPUDIATION
1. Free and Voluntary Act
2. Irrevocable once made and cannot be impugned,
except in cases vitiating consent.
3. Retroactive
REQUISITES FOR A VALID REPUDIATION
1. Heir repudiating must be certain of two things
before repudiating:
a. Death of the person from whom he is to
inherit;
b. Right to the inheritance.
2. Who may repudiate? Any person having the
free disposal of his property.
3. How is repudiation made? The repudiation of
the inheritance shall be made in a public or
authentic instrument, or by a petition
presented to the court having jurisdiction over the
testamentary or intestate proceedings.
a. If the heir repudiates the inheritance to the
prejudice of his own creditors, the latter may
petition the court to authorize them to accept
it in the name of the heir.
b. If an heir is both a testate and legal heir,
repudiation of the inheritance as a testate
heir, he is understood to have repudiated in
both capacities. However, should he
repudiate as a legal heir, without knowledge
of being a testate heir, he may still accept the
inheritance as a legal heir.
• NOTES: If renounced in favor of other heirs,
does it mean acceptance? It depends:
a. If specific heir – whether or not renouncing
heir receives anything, considered as
acceptance on the part of the heir. There are
two transfers. QuickTime™ and a
TIFF (Uncompressed) decompressor
b. If gratuitous –
are needed to see this picture.
i. In favor of all his co heirs indiscriminately
- there is repudiation because heir
deemed to have not accepted. Hence,
accretion takes place.
ii. In favor of all co-heirs but in proportion
different from those they would receive
by accretion: considered as tacit
acceptance.
iii. If gratuitous in favor of one or some of
his co-heirs – deemed conveyance in
favor of the co-heirs specified, hence
there is acceptance.
c. If onerously:
• There is no repudiation
• Transfer considered to be with
consideration
• There are also tax implications because
there are two transfers.
COLLATION
Collation – is the act by virtue of which, the
persons who concur in the inheritance bring
back to the common hereditary mass the
property which they have received from him,
so that a division may be effected according to
law and the will of the testator.
To collate – is to bring back or to return to the
hereditary mass, in fact or by fiction, property
which came from the estate of the decedent,
during his lifetime, but which the law considers
as an advance from the inheritance.
PROPERTIES OR RIGHTS RECEIVED BY
COMPULSORY HEIR NOT SUBJECT TO
COLLATION
1. Property left by will
2. Property which may have been donated by an
ascendant of the compulsory heir
3. Property donated to the spouse of the
compulsory heir
4. Expenses for support, education, medical
attendance even in extraordinary illness,
apprenticeship, ordinary equipment or customary
gifts
5. Expenses incurred by parents in giving their
children a professional, vocational, or other
career
6. Wedding gifts consisting of jewelry, clothing and
outfit, given by parents or ascendants, so long as
they do not exceed 1/10 of the disposable portion
OPERATIONS RELATED TO COLLATION
1. Collation – adding to the mass of the hereditary
estate the value of the donation or gratuitous
disposition
2. Imputing or Charging – crediting the donation
as an advance on the legitime (if the donee is a
Page 102 of 297
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

compulsory heir) or on the free portion (if the
donee is a stranger)
3. Reduction – determining to what extent the
donation will remain and to what extent it is
excessive or inofficious
4. Restitution – return or payment of the excess to
the mass of hereditary estate.
PERSONS OBLIGATED TO COLLATE
• GENERAL RULE: compulsory heirs
• EXCEPT:
a. When the testator should have so expressly
provided; and
b. When the compulsory heir should have
repudiated his inheritance
fixed by law or given under the will to heirs or
successors.
EFFECTS OF INCLUSION OF INTRUDER IN
PARTITION
1. Between a true heir and several mistaken heirs –
Partition is VOID
2. Between several true heirs and a mistaken heir –
transmission to mistaken heir is VOID
3. Through error or mistake; share of true heir is
allotted to mistaken heir – partition shall not be
rescinded unless there is bad faith or fraud on the
part of the other persons interested, but the latter
shall be proportionately obliged to pay the true
heir of his share

• NOTE: Partition with respect to the mistaken

CHAPTER 17 : PARTITION AND DISTRIBUTION heir is VOID.
OF ESTATE
IMPORTANT PERIODS TO REMEMBER
Please Refer to Succession Table 4

WHO MAY PARTITION

1. Decedent himself during his lifetime by an act

inter vivos or by will;
2. Heir themselves;
3. Competent court; 3rd person designated by the
decedent

WHO CAN DEMAND PARTITION

1. Compulsory heir;
2. Voluntary heir
3. Legatee or devisee;
4. Any person who has acquired interest in the
estate

WHEN PARTITION CANNOT BE DEMANDED

(PAPU)

1. When expressly Prohibited by the testator himself

for a period not exceeding 20 years;
2. When the co-heirs Agreed that the estate shall
not be divided for a period not exceeding 10
years, renewable for QuickTime™
another
TIFF (Uncompressed) 10 years;
and a
decompressor
are needed to see this picture.
3. When Prohibited by law;
4. When to partition the estate would render it
Unserviceable for the use for which it is intended.

• NOTE: Partition Inter Vivos – it is one that

merely allocates specific items or pieces of
property on the basis of the pro-indiviso shares

Page 103 of 297