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(2) Money debts of the decedent are not

transmitted to the heirs nor paid by them.
The estate pays them. [Balane, 2010]

I. GENERAL
PROVISIONS

Rule on Transmission:
General rule: All property rights which have
accrued to the hereditary estate since the
opening of succession are transmitted to the
heirs

A. DEFINITION
Succession - a mode of acquisition by virtue of
which the property, rights and obligations to
the extent of the value of the inheritance, of a
person are transmitted through his death to
another or others either by his will or by
operation of law. [Art. 774, CC]

Exception: Property acquired after the making

of a will shall not pass to the heirs unless it
should expressly appear in the will that such
was the intention of the testator. [Art. 793, CC]

Kinds of Succession
(1) Testamentary that which results from the
designation of an heir, made in a will
executed in the form prescribed by law.
[Art. 779, CC]
(2) Legal or Intestate that which takes place
by operation of law in the absence of a
valid will.
(3) Mixed that which is effected partly by will
and partly by operation of law. [Art. 780,

Rules on Opening of Succession:

(1) The rights to succession are transmitted
from the moment of the death of the
decedent. [Art. 777, CC]

Inheritance includes:
(1) All the property, rights and obligations of a
person which are not extinguished by his
death [Art. 776, CC]
(2) Not only the property and the
transmissible rights and obligations
existing at the time of his death, but also
those which have accrued thereto since the
opening of the succession [Art. 781, CC]

Implications of this principle:

(a) The law in effect at the time of death of
the decedent governs the succession
[Art. 2236, CC]
(b) The heir becomes the owner of his
share as well as all fruits which accrue
after the death of the decedent.
(c) Upon death of the decedent, heirs may
immediately possess, administer and
dispose of their shares in the estate (in
the absence of existing debts/claims
against the estate);
(d) The possession of hereditary property
is deemed transmitted to the heir
without interruption and from the
moment of death of the decedent, in
case the inheritance is accepted [Art.
533, CC]
(e) Estate taxes accrue upon death of the
decedent, even if the heirs come into
possession only later.

What are transmitted?

(1) Rights and obligations which are not
strictly personal (intuit personae) [Balane,
2010]

(2) A person may be presumed dead for the

purpose of opening his succession. In this
case, succession is only of provisional
character because there is always a chance

CC]
(4) Compulsory succession to the legitime
and prevails over all other kinds of
succession [Balane, 2010]

B. OBJECT OF SUCCESSION AND

TRANSMISSION

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that the absentee may still be alive. [Arts.

390-391, CC].

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II.Testamentary
Succession

C. SUBJECTS OF SUCCESSION

A. WILLS

Decedent person whose property is

transmitted through succession, whether or
not he left a will. [Art. 775, CC]

A.1. IN GENERAL
Will - 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. [Art.
783, CC]

Testator a decedent who left a will [Art. 775,

CC]
Kinds of Successors
(1) Heirs those who are called to the whole
or an aliquot portion of the inheritance
either by will or by operation of law [Art.
782, CC]
(2) Devisees persons to whom gifts of real
property are given by virtue of a will
(3) Legatees persons to whom gifts of
personal property are given by virtue of a
will

i. KINDS OF WILLS
(5) Notarial an ordinary or attested will,
which must comply with the requirements
of the law [Arts. 804-808, CC]
(6) Holographic a will entirely written, dated
and signed by the hand of the testator [Art.
810, CC]

Note: The distinction is significant in case of

preterition.

ii. CHARACTERISTICS OF WILLS

(1) Purely personal will-making is nondelegable
making of a will cannot be left in whole
or in part of the discretion of a third
person, or accomplished through the
instrumentality of an agent or attorney
[Art. 784, CC]
testator may not make a testamentary
disposition in such manner that another
person has to determine whether or not
it is to be operative [Art. 787, CC]

Kinds of Heirs
(1) Compulsory Heirs those who succeed by
force of law to some portion of the
inheritance, in an amount predetermined
by law known as the legitime, of which they
cannot be deprived by the testator, except
by a valid disinheritance. They succeed
regardless of a will.
(2) Voluntary or Testamentary Heirs those
who are instituted by the testator in his
will, to succeed to the portion of the
inheritance of which the testator can freely
dispose. They succeed by reason of a will.
(3) Legal or Intestate Heirs those who
succeed to the estate of the decedent who
dies without a valid will, or to the portion of
such estate not disposed of by will, or
when certain grounds are met

What cannot be
delegated to 3rd
persons

What may be entrusted

to 3rd persons

(1) designation
of (1) designation
of
heirs, devisees and
person/institution
legatees
falling under a
(2) duration/efficacy
class specified by
of designation
testator
(3) determination of (2) manner
of

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portions,
when
referred to by
name [Art. 785,
CC]

SUCCESSION

CIVIL LAW

iii. RULES OF CONSTRUCTION AND

INTERPRETATION

distribution
of
property specified
by testator [Art.
786, CC]

[Arts. 788-795]
Main rule: All rules are designed to ascertain
and give effect to the intention of the testator.

Note: testator must

first specify the class
and the amount of
property for proper
delegation

Rationale:
Testamentary
preferred to intestacy.

succession

is

(1) Different interpretations, in case of doubt,

that which would make the will operative
[Art. 788, CC]
(2) Words to be taken in their ordinary and
grammatical sense unless there is a clear
intention to use them in another sense
[Art. 790, CC]
(3) Technical words are to be taken in their
technical sense unless there is a contrary
intention
or
when
testator
was
unacquainted with such technical sense
[Art. 790, CC]
(4) Words must be of an interpretation to give
effect to every expression. To make it
operative rather than inoperative; that
which will prevent intestacy [Art. 791, CC]
(5) Invalidity of one of several dispositions does
not result in invalidity of others unless the
testator would not have made such
dispositions if the first invalid disposition
had not been made [Art. 792, CC]
(6) Every devise and legacy shall convey all the
interest unless it clearly appears the
intention was to convey a less interest [Art.
794, CC]
(7) Where there are ambiguities (i.e. imperfect
description or no person or property
exactly answers to the description,
mistakes, omissions), intrinsic or extrinsic
evidence may be used to ascertain the
intention of the testator
Oral declarations of the testator as to his
intention must be excluded. [Art 789, CC]

(2) Free and intelligent [Art. 839, CC]

(3) Solemn and formal - if the form is
defective, the will is void
(4) Revocable and ambulatory will can be
revoked at any time before the testators
death [Art. 828, CC]
(5) Mortis causa - takes effect upon the
testators death
(6) Individual prohibition against joint wills
[Art. 818, CC]
(7) Executed with animus testandi intent to
dispose of the property
(8) Executed with testamentary capacity
(9) Unilateral act - does not involve an
exchange of values or depend on
simultaneous offer and acceptance
(10) Dispositive disposes of property
General rule: Wills contain disposition of
the testators estate mortis causa.
Exceptions: (non-dispositive wills)
will recognizing an illegitimate child
will disinheriting a compulsory heir
(11) Statutory grant permitted only by law,
not a constitutional right
As it is a statutory grant, a will must be
made in accordance with the formalities
prescribed by the law [Art. 783, CC; Balane
(2004)]

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Kinds of Ambiguities
Patent or Extrinsic
Ambiguity

Requisites:
He must not be expressly prohibited by law to
make a will [Art. 796, CC]

Latent or Intrinsic
Ambiguity

one which appears one which cannot be

upon the face of the seen from the reading
instrument
of the will but which
appears only upon
consideration
of
extrinsic
circumstances

(a) Age Requirement

The testator must not be under 18 years of
age [Art. 797, CC]
Year shall be understood to be 12
calendar months [Sec. 31, Book 1, Admin
Code]

There is no distinction between patent and

latent ambiguities in so far as the admissibility
of parol or extrinsic evidence to aid
testamentary disposition is concerned.

(b) Soundness of Mind of the Testator

The testator is of sound mind at the time of
execution [Art. 798, CC]
Sanity is negatively stated in Art. 799:
Not necessary that the testator be in full
possession of reasoning faculties
Not necessary that the testators mind be
wholly
unbroken,
unimpaired,
unshattered by disease, injury or other
cause [Art. 799, CC]

iv. GOVERNING LAWS, IN GENERAL

Aspect of the Will
Formal Validity

CIVIL LAW

Governing Law
Law in force at the time the
will was executed [Art. 795,
CC]

To be of sound mind, the testator must

know:
The nature of the estate to be disposed
of;
The proper objects of his bounty;
The character of the testamentary act
[Art. 799, CC]

Intrinsic Validity Law

of
decedents
nationality at the time of his
death [Arts. 16 and 2263, CC]
Aspects of the Will Governed by the National
Law of the Decedent
(1) Order of succession;
(2) Amount of successional rights;
(3) Intrinsic
validity
of
testamentary
provisions; and
(4) Capacity to succeed [Art. 16, CC]

General rule: Soundness of mind is

presumed [Art. 800, CC]
Exception: When the testator, one month
or less before the execution of the will, was
publicly known to be insane

A.2. TESTAMENTARY CAPACITY AND

INTENT
Testamentary capacity must exist at the time
of the execution of the will

A.3. FORM

Supervening incapacity does not invalidate an

effective will nor is the will of an incapable
validated by a supervening of capacity [Art.
801, CC]

IN GENERAL [Art. 804, CC]

(1) The will must be in writing
(2) It must be in a language or dialect known
to the testator

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country; or
(4) Philippine Law [Art.
816, CC]

Applicable Laws as to Formal Validity

Formal validity is governed by the law in
force at the time the will was executed [Art.

795, CC]

ATTESTED OR NOTARIAL WILLS

As to the place, forms and solemnities of a

will are governed by the law of the country in
which the will was executed [Art. 17, CC]
Arts. 815-817 (summarized in the table
below) provide for the various governing laws
in these instances:
(1) A will was made in a foreign country by a
Filipino [Art. 815]
(2) A will was made in a foreign country by
an alien [Art. 816]
(3) A will was made in the Philippines by an
Alien [Art. 817]

Specific Requirements for Notarial Wills

(1) Subscribed at the end
(2) Attestation clause
(3) Marginal signatures
(4) Page numbers
(5) Acknowledged by a notary public
(6) Additional requirements for handicapped
testators
(7) Subscribed by 3 or more witnesses in the
presence of the testator and of one another

Governing Law as to Place of Execution of Will

Place of
Testator Execution of
Governing Law
Will

(1) Subscription: Subscribed to, at the end of

the will [Art. 805, CC]
By the testator himself; or
By the testators name written by a
representative in his presence and under
his express direction.

Philippines

Philippine Law [Art. 16,

CC]

(2) Attestation: Attested and subscribed by 3

or more credible witnesses in the presence
of the testator and of one another [Art.
805, CC]

Outside of (1) Law of the country

Filipino the
in which it is
Philippines
executed
[Art.
17,CC]; or
(2) Philippine Law [Art.
815, CC]
Philippines

Alien

Attestation

Subscription

Mental act (act of the Mechanical act (act of

senses)
the hand)

(1) Philippine Law; or

(2) Law of the country
of which testator is a
citizen or subject
[Art. 817, CC]

Purpose is to render Purpose

available proof during identification
probate of will, not
only of the authenticity
of the will but also of
its due execution

Outside of (1) Law of the place

the
where the will is
Philippines
executed [Art. 17,
CC]; or
(2) Law of the place
where the testator
resides; or
(3) Law of the testators

of

The attestation clause shall state the

following:
(1) Number of pages;
(2) The fact that the testator or his
representative under his express

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direction signed the will and every

page in the presence of instrumental
witnesses
(3) That the witnesses signed the will and
all its pages in the presence of the
testator and of one another.

CIVIL LAW
testament, due to the simultaneous lifting
of two pages in the course of signing, is not
per se sufficient to justify denial of probate.
[Icasiano v. Icasiano (1964)]

(4) Page Numberings: Numbered correlatively

in letters placed on the upper part of each
page (i.e. Page One of Five Pages). [Art.
805, CC]
Mandatory part: pagination by means of
a conventional system
Directory part: pagination in letters on
the upper part of each page [Balane
(2010)]

The signatures of the witnesses must be at

the bottom of the attestation clause [Cagro
v. Cagro (1953)]
The notary public cannot be counted as an
attesting witness [Cruz v. Villasor (1973)]
Test of presence: 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. [Jaboneta v.
Gustilo (1906)]

(5) Acknowledged before a notary public by

the testator and the witnesses [Art. 806,
CC]
Notary public cannot be considered a third
witness. He cannot acknowledge before
himself his having signed the will. To allow
such would have the effect of having only
two attesting witnesses to the will. [Cruz v.
Villasor (1973)]

(3) Marginal Signatures

General rule: Testator or his representative
shall write his name, and the witnesses
shall sign each and every page except the
last page [Art. 805, CC]

The certification of acknowledgement need

not be signed by the notary in the presence
of the testator and the witnesses.
[Javellana v. Ledesma (1955)]

Exceptions:
(1) When the will consists of only one page
(2) When the will consists of only two
pages, the first of which contains all
dispositions and is signed at the
bottom by the testator and the
witnesses, and the second page
contains only the attestation clause
duly signed at the bottom by the
witnesses. [Abangan v. Abangan (1919)]

(6) Additional rules for handicapped testators:

(a) Deaf Mute [Art. 807, CC]
Testator must personally read the
will; or
Testator shall personally designate
two persons to read the contents and
communicate it to him in some
practicable manner.

The use of thumbprint was allowed [Matias

v. Salud (1957)]

(b) Blind [Art. 808, CC]

The will shall be read to the testator
twice - By one of the subscribing
witnesses and by the notary public
acknowledging the will.

The inadvertent failure of one witness to

affix his signature to one page of a

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Examples:
Whether all pages are consecutively
numbered
Whether the signatures appear in each and
every page
Whether the subscribing witnesses are three
Whether the will was notarized [Caneda v CA
(1993)]

A testator suffering from glaucoma is

considered as legally blind [Garcia v.
Vasquez (1970)]

(7) Witnesses
Qualifications [Art. 820, CC]
(1) Of sound mind
(2) Aged 18 years or over
(3) Not blind, deaf or dumb
(4) Able to read and write

Omissions which can be supplied by an

examination of the will itself, without the need
of resorting to extrinsic evidence, will not be
fata and will not prevent allowance of the will.

Disqualifications [Art. 821, CC]

(1) Person not domiciled in the Philippines
(2) Those who have been convicted of
falsification, perjury, or false testimony.

Omissions which cannot be supplied except by

extrinsic evidence or evidence aliunde are fatal
and would result in the invalidation of the will.

Rules on Interested Witness [Art. 823, CC]

General Rule
Exception
Devises or legacies in
favor of a spouse,
parent or child who
also attests to the will
as a witness shall be
void

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Example: Whether the testator signed in the

presence of the witnesses, or the witnesses
signed in the presence of the testator and of
one another.

If there are three other

competent witnesses,
the device or legacy
shall be valid and the
interested
witness
shall be treated as a
mere surplusage

HOLOGRAPHIC WILLS
Requisites:
(a) In writing [Art. 804, CC]
(b) In a language known to the testator [Art.
804, CC]
(c) Entirely written, dated and signed in the
hand of the testator himself [Art. 810, CC]

Creditors are not incompetent to be

witnesses [Art. 824, CC]
Supervening incompetency shall not
prevent the allowance of the will [Art. 822,
CC]

Advantages

Disadvantages

Simple and easy to No guarantee as to

make
the capacity of the
Induces foreigners in testator
this jurisdiction to No
protection
set down their last against
violence,
wishes
intimidation
or
undue
influence
Guarantees
the
absolute secrecy of May not faithfully
the
testamentary express the will of
dispositions
the testator due to
faulty expressions
Can
be
easily

Substantial Compliance Rule (as to the form of

the attestation clause)
Substantial compliance rule applies only in
cases when such defects and imperfections can
be supplied by an examination of the will itself.
There must be no bad faith, forgery, fraud, or
undue and improper pressure and influence for
substantial compliance to be allowed. [Art.
809, CC]

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falsified
concealed

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Effect of insertion written by another person on

the validity of a holographic will

and

When Made

Effect

After the execution, Insertion considered

without consent of not written. Validity
testator
cannot be defeated by
the malice or caprice
of a third person

Witnesses Required for Probate [Art. 811, CC]

At least one witness who knows the
handwriting and signature of the testator;
explicitly declare that it is the testators
If contested at least 3 of such witnesses
In the absence of a competent witness,
expert testimony may be resorted to

After execution, with Will is valid, insertion

consent
is void
After
execution, Insertion becomes part
validated by testators of the will. Entire will
signature
becomes void because
it is not wholly written
by the testator

General rule: The holographic will itself must

be presented for probate [Gan v. Yap (1958)]
Exception: If there is a photostatic copy or
xerox copy of the holographic will, it may be
presented for probate [Rodelas v. Aranza
(1982)]

Contemporaneous to Will is void because it

the execution of the is not written entirely
will
by the testator

Additional Dispositions
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 [Art.
812, CC]

Joint Wills
(1) A single testamentary instrument,
(2) Which contains the wills of two or more
persons,
(3) Jointly executed by them,
(4) Either for their reciprocal benefit or for the
benefit of a third person.

When a number of dispositions appearing in a

holographic will are signed without being
dated, and the last disposition has a signature
and date, such date validates the dispositions
preceding it, whatever be the time of prior
dispositions. [Art. 813, CC]

Mutual Wills
(1) Executed pursuant to an agreement
between two or more persons,
(2) Jointly executed by them,
(3) Either for their reciprocal benefit or for the
benefit of a third person.

Insertion, Cancellation, Erasure or Alteration

[Art. 814, CC]
Testator must authenticate by his full
signature.

Reciprocal Wills
(1) Testators name each other as beneficiaries
in their own wills,
(2) Under similar testamentary plans

Full signature does not necessarily mean the

testators full name; it rather means his usual
and customary signature. [Balane (2010)]

Note: A will that is both joint and mutual is one

executed jointly by two or more persons, the
provisions of which are reciprocal and which
shows on its face the devises are made in
consideration of each other. Such is prohibited

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under Art. 819, CC. Prohibition is applicable

only to joint wills executed by Filipinos, even if
execution is made in a foreign country which
allows joint wills.

CIVIL LAW
revoking it, by the testator himself, or by
some other person in his presence, and by
his express direction.

The act contemplating revocation must be

done at any time before the death of the
testator. The right of revocation cannot be
waived or restricted. [Art. 828, CC]

A.4. CODICILS
Codicil
(1) It is a supplement or addition to a will,
(2) made after the execution of a will,
(3) and annexed to be taken as a part of the
will,
(4) by which any disposition made in the
original will is explained, added to, or
altered.
(5) in order that it may be effective, it shall be
executed as in the case of a will. [Arts.
825-826, CC]

Law Governing Revocation [Art. 829, CC]

Place of
Testators
Governing Law
Revocation
Domicile
Philippines Philippines, or Philippine Law
some
other
country

A.5. INCORPORATION BY REFERENCE

Requisites [Art. 827, CC]

Outside the
Philippines

(a) The document or paper referred to in the

will must be in existence at the time of the
execution of the will.
(b) The will must clearly describe and identify
the same, stating among other things the
number of pages thereof.
(c) It must be identified by clear and
satisfactory proof as the document or
paper referred to therein; and
(d) 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.

Philippines

Philippine law

Foreign
Country

(1) Law of the

place where
the will was
made; or
(2) Law of the
place in which
the testator
had
his
domicile
at
the time of
revocation

Doctrine of Dependent Relative Revocation

Molo v. Molo (1951)

The rule that where the act of destruction is
connected with the making of another will so
as to fairly raise the inference that the testator
meant the revocation of the old to depend
upon the efficacy of the new disposition
intended to be substituted, the revocation will
be conditional and dependent upon the
efficacy of the new disposition; and if for any
reason, the new will intended to be made as a
substitute is inoperative, the revocation fails
and the original will remain in full force.

A.6. REVOCATION
A will may be revoked by the testator at any
time before his death [Art. 828, CC]
Modes of Revocation [Art. 830, CC]
(1) By implication of law; or
(2) By the execution of a will, codicil or other
writing executed as provided in the case of
wills; or
(3) By burning, tearing, canceling, or
obliterating the will with the intention of

The failure of the new testamentary disposition

upon whose validity the revocation depends is
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equivalent to the non-fulfillment of a

suspensive condition and hence prevents the
revocation of the original will.
Revocation vs. Nullity
Revocation
By the act of the
testator
Presupposes a valid
act
Takes place during
the lifetime of the
testator
Testator
cannot
renounce the right to
revoke

CIVIL LAW

operates to revoke the prior will immediately

upon the execution of the will containing it.
The revocation of the 2nd will does not revive
the 1st will which has already become a nullity.
Republication vs. Revival
Revocation

Nullity
Proceeds from law
Inherent in the
testament, be it an
intrinsic or an
extrinsic defect
Invoked after the
testators death by
his heirs
Nullity of a will can
be disregarded by
the heirs through
voluntary
compliance
therewith

Nullity

Takes place by an Takes place by

act of the testator
operation of law
Corrects
extrinsic Restores a revoked
and intrinsic defects
will

A.8. ALLOWANCE AND DISALLOWANCE

OF WILLS
i. PROBATE REQUIREMENT
No will shall pass either real or personal
property unless it is proved and allowed in
accordance with the Rules of Court [Art. 838,
CC]

A.7. REPUBLICATION AND REVIVAL

The execution of a codicil referring to a
previous will has the effect of republishing the
will as modified by the codicil. [Art. 836, CC]

Probate a proceeding in rem required to

establish the validity of a will and in order to
pass real or personal property [Art. 838, CC]

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. 835, CC]

The testator himself may, during his lifetime

petition the court having jurisdiction for the
allowance of his will. [Art. 838, CC]
Matters to be proved in probate
(1) Identity Whether the instrument which is
offered for probate is the last will and
testament of the decedent
(2) Due Execution Whether the will has been
executed in accordance with the
formalities prescribed by law
(3) Capacity Whether the testator had
testamentary capacity at the time of
execution of the will

Reproduction in the codicil is required only

when the original will is void as to it form; in all
other cases, reference to the original will
suffices to republish it through the codicil.
[Tolentino]
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. [Art. 837, CC]

Scope of probate proceedings [Art. 839, CC]

General rule: The probate court cannot inquire
into the intrinsic validity of testamentary

Principle of instanter Revoking clause in the

2nd will is not testamentary in character but
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provisions. Only the extrinsic validity of such

wills may be examined.

testator or after his death, shall be conclusive

as to due execution. [Art. 838, CC]

Exception: When practical considerations

demand that the intrinsic validity of the will be
resolved

The probate of a will by the probate court

having jurisdiction thereof is usually
considered as conclusive as to its due
execution and validity, and is also conclusive
that the testator was of sound and disposing
mind at the time when he executed the will,
and was not acting under duress, menace,
fraud, or undue influence, and that the will is
genuine and not a forgery. [Mercado v. Santos
(1938)]

When the will is intrinsically void on its face

(e.g., when there is clearly a preterition) such
that to rule on its formal validity would be a
futile exercise. [Acain v. Diongson (1987)]
Claimants are all heirs and they consent, either
expressly or impliedly, to the submission of the
question of intrinsic validity to the court.
[Valera v. Inserto (1987)]

ii. GROUNDS FOR DENYING PROBATE

(1) If the signature of the testator was
procured by fraud;
(2) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or some other person;
(3) If the testator acted by mistake or did not
intend that the instrument he signed
should be his will at the time affixing his
signature thereto;
(4) If the testator was insane or otherwise
mentally incapable of making a will at the
time of its execution;
(5) If the formalities required by law have not
been complied with; or
(6) If it was executed through force or under
duress, or the influence of fear, or threats.
[Art. 839, CC]

Probate court may pass upon the title to a

property, but such determination is provisional
and not conclusive, and is subject to the final
decision in a separate action to resolve title.
[Pastor v.CA (1983)]
Probate court may decide on the ownership of
a property when the estate contains only one
property to be adjudicated upon. [Portugal v.
Portugal-Beltran (2005)]
Revocation vs. Disallowance
Revocation
Disallowance
Voluntary act of the Given
testator
decree

by

judicial

With or without cause Must always be for a

legal cause

B. INSTITUTION OF HEIR

May be partial or total Always total, except

when the ground of
fraud or influence for
example affects only
certain portions of the
will
Effect of Final Decree of Probate, Res Judicata
on Formal Validity
Subject to the right of appeal, the allowance of
the will, either during the lifetime of the

Institution of Heirs an act by virtue of which

the testator designates in his will the person or
persons who are to succeed him in his property
and transmissible rights and obligation [Art.
840, CC]
A will shall be valid even though it
(1) should not contain an institution of an heir
or

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(2) such institution should not comprise the

entire estate or
(3) the person so instituted should not accept
the inheritance or be incapacitated to
succeed.

CIVIL LAW

If there is error in the name but identity can

still be identified through other proof,
institution is still valid.
If heir is unidentifiable, none is deemed
instituted.

In such cases, the testamentary dispositions

made in accordance with law shall be
complied with and the remainder of the estate
shall pass to the legal heirs. [Art. 841, CC]

MANNER OF DISTRIBUTION
Heirs instituted without designation of
shares shall inherit in equal parts [Art. 846]
If the institution pertains to some heirs
individually and others collectively, the
presumption is that all are individually
instituted. [Art. 847]
If siblings are instituted (whether full or halfblood), the presumption is that the
inheritance is to be distributed equally [Art.
848]. This is different from the rules of
distribution in intestate succession.
If parents and children are instituted, they
are presumed to have been instituted
simultaneously and not successively. [Art.
849]

Extent of Grant [Art. 842, CC]

Freedom of disposition depends upon the
existence, kind and number of compulsory
heirs.
No compulsory heirs Testator has full
power of disposition
One with compulsory heirs cannot disregard
the rights of the latter; may only dispose of
the free portion of his estate
Effect of Predecease of Heir [Art. 856, CC]
Any heir who dies before the testator or is
incapacitated to succeed or renounces the
inheritance transmits no rights of the testator
to his own heirs. This is without prejudice to
the rights of representation. [Tolentino]

Every disposition in favor of an unknown

person shall be void, unless by some event or
circumstance his identity becomes certain.
A disposition in favor of a definite class or
group of persons shall be valid. [Art. 845, CC]

MANNER OF INSTITUTION
Rules on Identity of Heirs [Arts. 843-849, CC]
The heir must be designated with sufficient
clarity
If an unknown person is instituted, the
disposition is void (unless by some event, the
identity becomes certain)
If a definite class or group of persons is
instituted, institution is valid.

INTENT OF THE TESTATOR

False Cause [Art. 850, CC]
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.

Austria v. Reyes (1973)

The heir shall be designated by name or

surname.
If there are two or more persons with the
same names, indicate some circumstance by
which the heir may be known.
Even though the name may have been
omitted but there can be no doubt as to who
has been instituted, the institution is valid.

Falsity of stated cause for institution will set

aside or annul the institution if the following
are present:
(1) The cause for the institution is stated in the
will
(2) The cause is shown to be false

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(3) It appears on the face of the will that the

testator would not have made such
institution if he had known the falsity of the
cause.

CIVIL LAW

(3) The compulsory heir omitted must be of

the direct line.
(4) The omitted compulsory heir must be living
at the time of the testators death or must
at least have been conceived before the
testators death.

Scope of Institution [Arts. 852-853, CC]

(1) There are more than one instituted heir
(2) The testator intended them to get the
whole estate or the whole disposable
portion
(3) The testator has designated a definite
portion for each heir
(4) Under Art. 852: the total of all portions is
less than the whole estate (or free portion)
Therefore, a proportionate increase is
necessary
The difference cannot pass by intestacy
because the intention of the testator is
clearto give the instituted heirs the
entire amount
(5) Under Art. 853: The total exceeds the
whole estate (or free portion)
Therefore, a proportionate reduction
must be made on the remaining part of
the estate.

(a) Compulsory Heirs in the Direct Line

A direct line is that constituted by the
series of degrees among ascendants and
descendants (ascending and descending).
[Art. 964, par.2, CC]
(b) Dispositions Less Than Legitime But No
Preterition [Balane]
If the heir in question is instituted in the
will but the portion given to him by the will
is less than his legitime there is no
preterition. [Reyes v. Barretto-Datu (1967)]
If the heir is given a legacy or devise
there is no preterition. [Aznar v. Duncan
(1966)]
If the heir had received a donation inter
vivos from the testator the better view is
that there is no preterition. The donation
inter vivos is treated as an advance on the
legitime under Articles 906, 909, 910 and
1062.

Preterition
The preterition or omission of one, some, or all
of the compulsory heirs in the direct line,
whether living at the time of the execution of
the will or born after the death of the testator,
shall annul the institution of heir; but the
devises and legacies shall be valid insofar as
they are not inofficious.

The remedy, if the value of inheritance,

legacy or devise, or donation inter vivos is
only for completion of his legitime under
Articles 906 and 907.

If the omitted compulsory heirs should die

before the testator, the institution shall be
effectual, without prejudice to the right of
representation. [Art. 854, CC]

(c) Distinguished from Disinheritance

Preterition

Disinheritance

Tacit deprivation of a Express deprivation

compulsory heir of of a compulsory heir
his legitime
of his legitime
May be voluntary but Always voluntary
the presumption of For some legal

Concept [Art. 854, CC]

(1) There must be a total omission of one,
some or all of the heir/s from the
inheritance. [Seangio v. Reyes (2006)]
(2) The omission must be that of a compulsory
heir.
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CIVIL LAW

Kinds
(1) Brief or Compendious
(2) Reciprocal
(3) Simple or Common
(4) Fideicommissary

law is that it is cause

involuntary
If the disinheritance
Law presumes there is
valid,
the
has been merely compulsory
heir
oversight or mistake disinherited
is
on the part of the totally
excluded
testator
from
the
Since
preterition inheritance. In case
invalid
annuls
the of
institution of heirs, disinheritance, the
the omitted heir gets compulsory heir is
not only his legitime merely restored to
but also his share in his legitime
the free portion not
disposed of by way
of legacies and
devises

(1) Brief or Compendious [Art. 860, CC]

Brief Two or more persons were
designated by the testator to substitute for
only one heir
Compendious One person is designated
to take the place of two or more heirs
(2) Reciprocal [Art. 861, CC]
If the heirs instituted in unequal shares
should be reciprocally substituted, the
substitute shall acquire the share of the
heir who dies, renounces, or is
incapacitated, unless it clearly appears
that the intention of the testator was
otherwise. If there is more than one
substitute, they shall have the same share
in the substitution as the institution.

(d) Effects of Preterition [Art. 854, CC]

(1) The institution of the heir is annulled.
(2) Devises and legacies shall remain valid
as long as they are not inofficious.
(3) If the omitted compulsory heir should
die before the testator, the institution
shall be effective, without prejudice to
the right of representation.

Example (only 1 substitute): If two heirs are

reciprocally substituted, then if one of
them dies before the testator dies,
renounces, or turns out to be
incapacitated, the other will get his share,
regardless of whether or not their shares
are equal.

When there are no devises and legacies,

preterition will result in the annulment of
the will and give rise to intestate
succession. [Neri v. Akutin (1941)]

C. SUBSTITUTION OF HEIRS
Example (more than 1 substitute): A is
instituted to 1/3, B to 1/6, and C to . If C
dies before the testator, renounces or turns
out to be incapacitated, then the other two
will get his shares in the same proportion
as in the institution. A will get twice as
much as B (because his share of 1/3 in the
institution is twice the size of Bs share of
1/6)

Substitution - is the appointment of another

heir, so that he may enter into the inheritance
in default of the heir originally instituted. [Art.
857, CC]
The substitute shall be subject to the same
charges and conditions imposed upon the
instituted heir, unless the testator has
expressly provided the contrary, or the charges
or conditions are personally applicable only to
the heir instituted. [Art. 862, CC]

(3) Simple Substitution [Art. 859, CC]

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The testator may designate one or more

persons to substitute the heir/s instituted
in case the heirs should:
(1) die before him (predecease),
(2) should not wish to accept the
inheritance (repudiation), or
(3) should be incapacitated to accept the
inheritance (incapacitated).

CIVIL LAW

Effects of predecease of the first heir/fiduciary

or the second heir/fideicommissary
Situation 1: If the first heir dies followed by the
second heir, then the testator dies, who will
inherit? The legal heirs. There is no
fideicommissary substitution because first and
second heirs are not living at the time of the
testators death. [Art. 863, CC]

(4) Fideicommissary Substitution

The testator institutes an heir with an
obligation to preserve and to deliver to
another the property so inherited. The heir
instituted to such condition is called the
First Heir or the Fiduciary Heir; the one to
receive the property is the Fideicommissary
or the Second Heir. [Art. 863, CC]

Situation 2: The testator dies first followed by

the second heir. The first heir survived them
but subsequently dies, who will inherit? The SH
and his heirs under Art. 866, CC. This is
because the SH passes his rights to his own
heirs when he dies before FH.
Situation 3: If the first heir dies, followed by the
testator, then the second heir, who will inherit?
No specific provision in law, but SH inherits
because the T intended him to inherit.

Requisites: [Arts. 863-865, CC]

(a) A Fiduciary or First Heir instituted is
entrusted with the obligation to
preserve and to transmit to a
Fideicommissary Substitute or Second
Heir the whole or part of the
inheritance.
(b) The substitution must not go beyond
one degree from the heir originally
instituted.
(c) The
Fiduciary
Heir
and
the
Fideicommissary are living at the time
of the death of the testator.
(d) The fideicommissary substitution must
be expressly made.
(e) The fideicommissary substitution is
imposed on the free portion of the
estate and never on the legitime

D. TESTAMENTARY DISPOSITIONS
WITH A CONDITION, A TERM, AND A
MODE
3 Kinds of Testamentary Dispositions
(1) Conditional [Art. 871, CC]
(2) Dispositions with a term [Art. 885, CC]
(3) Dispositions
with
a
mode/modal
dispositions [Art. 882, CC]
CONDITIONAL DISPOSITIONS
Basis of testators right to impose conditions,
terms or modes: Testamentary freedom
Prohibited conditions: (considered as not
imposed)
(1) Any charge, condition or substitution
whatsoever upon the legitimes. [Art. 872]
(2) Impossible and illegal conditions. [Art.
873]
(3) Absolute condition not to contract a first
marriage. [Art. 874]

In the absence of an obligation on the part

of the first heir to preserve the property for
the
second
heir,
there
is
no
fideicommissary substitution. [PCIB v.
Escolin (1974)]

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(4) Absolute condition not to contract a

subsequent marriage unless imposed on
the widow or widower by the deceased
spouse, or by the latters ascendants or
descendants. [Art. 874]
(5) Scriptura captatoria or legacy-hunting
dispositions - dispositions made upon the
condition that the heir shall make some
provision in his will in favour of the testator
or of any other person. [Art. 875]

Scriptura

captatoria/

CIVIL LAW
partly on chance or the will of a third
person.
General rule: May be fulfilled at any time
(before or after testators death), unless
testator provides otherwise.
Exception: If already fulfilled at the time of
execution of will:
(1) if testator unaware of the fact of
fulfillment deemed fulfilled
(2) if testator aware:
can no longer be fulfilled again:
deemed fulfilled
can be fulfilled again: must be
fulfilled again.

Legacy-Hunting

Dispositions
Reasons for prohibition:
(1) The captatoria converts the testamentary
grants into contractual transactions;
(2) It deprives the heirs of testamentary
freedom;
(3) It gives the testator the power to dispose
mortis causa not only of his property but
also of his heirs.

Constructive Compliance:
if casual not applicable
if mixed applicable only if dependent partly
on the will of a third party not interested.
DISPOSITIONS WITH A TERM
A term may either be suspensive or resolutory.
(1) If the term is suspensive:
Before the arrival of the term, the property
should be delivered to the legal or
intestate heirs.

Effect: Entire disposition is void

Potestative, Casual and Mixed Conditions
(1) Potestative Conditions
General rule: Must be fulfilled as soon as
the heir learns of the testators death

A caucin muciana has to be posted by the

heirs.

Exception: If the condition was already

complied with at the time the heir learns of
the testators death; or if the condition is of
such a nature that it cannot be fulfilled
again.

(2) If the term is resolutory:

Before the arrival of the term, the property
should be delivered to the instituted heir.

Constructive Compliance: deemed fulfilled

No caucin muciana required as the heir

has a right over the property during the
period.

(2) Casual or mixed

Casual condition one whose fulfillment
depends on chance or the will of a third
person.

MODAL DISPOSITIONS
Dispositions with an obligation imposed upon
the heir, without suspending the effectivity of
the institution, as a condition does

Mixed condition one whose fulfillment

depends partly on the will of the heir and

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Must be clearly imposed as an obligation in

order to be considered as one.
Mere
preferences or wishes expressed by the
testator are not modes.

(a) Legitimate Parents and Legitimate

Ascendants, with respect to their
Legitimate Children and Descendants.
(They will inherit only in default of
legitimate
children
and
their
descendants)
(b) Illegitimate Parents with respect to
their Illegitimate Children. (They will
inherit only in default of the
illegitimate and legitimate children
and their respective descendants).
Note
that
other
illegitimate
ascendants are not included.
(3) Concurring: Those who succeed together
with the primary or the secondary
compulsory heirs:
(a) Widow or Widower / Surviving Spouse
(Legitimate)
(b) Illegitimate Children and Illegitimate
Descendants

A mode functions similarly to a resolutory

condition.
In modal institutions, the testator states (1) the
object of the institution, (2) the purpose or
application of the property left by the testator,
or (3) the charge imposed by the testator upon
the heir. [Rabadilla v. CA (2000)]

Caucin Muciana
A security to guarantee the return of the value
of property, fruits, and interests, in case of
contravention of condition, term or mode
Instances when it is needed:
(1) Suspensive term [Art. 885,CC]
(2) Negative potestative condition - when the
condition imposed upon the heir is
negative, or consists in not doing or not
giving something [Art. 879, CC]
(3) Mode [Art. 882, par 2, CC]

E. LEGITIME
It is that part of the testators property which
he cannot dispose of because the law has
reserved it for his compulsory heirs. [Art. 886,
CC]
COMPULSORY
HEIRS
COMBINATIONS

AND

CIVIL LAW

If the testator is a
legitimate child:

If the testator is an
illegitimate child:

(1) LC
and
descendants
(2) In default of No. 1,
LP and ascendants
(3) SS
(4) IC
and
descendants

(1) LC
and
descendants
(2) ILC
and
descendants
(3) In default of Nos.
1-2 ILP only
(4) SS

Specific Rules on Legitimes

(1) Direct Descending Line
(a) Rule of Preference between lines [Arts.
978 and 985, CC]
Those in the direct descending line
shall exclude those in the direct
ascending and collateral lines; and
Those in the direct ascending line
shall, in turn, exclude those in the
collateral line.
Rule of Proximity [Art. 926, CC]: The
relative nearest in degree excludes
the farther one

VARIOUS

Classes of Compulsory Heirs [Art. 887, CC]

(1) Primary: Those who have precedence over
and exclude other compulsory heirs:
Legitimate Children and Legitimate
Descendants with respect to their
Legitimate Parents and Ascendants
(2) Secondary: Those who succeed only in the
absence of the Primary compulsory heirs:

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(b) Right of representation ad infinitum in

case of predecease, incapacity, or
disinheritance [Arts. 972 and 992, CC]
For decedents who are Legitimate
Children, only the Legitimate
Descendants are entitled to right of
representation.
For decedents who are Illegitimate
Children, both the Legitimate and
the Illegitimate Descendants can
represent, only with respect to the
decedents illegitimate parents.
(c) If all the Legitimate Children repudiate
their legitime, the next generation of
Legitimate Descendants may succeed
in their own right.

CIVIL LAW
The father and the mother shall
inherit equally if both living. One
parent succeeds to the entire estate
of the child if the other parent is
dead. [Art. 986, CC]
In default of the mother and the
father, the ascendants nearest in
degree will inherit. [Art. 987]
If there is more than one relative of
the same degree but of different
lines, one half will go to the paternal
ascendants and the other half to the
maternal ascendants. [Art. 987]
(b) Rule of equal division
The relatives who are in the same
degree shall inherit in equal shares.
[Art. 987]

(2) Direct Ascending Line

(a) Rule of division between lines
Summary of Legitimes of Compulsory Heirs
Legend:
LC Legitimate Children
SS Surviving Spouse
LP Legitimate Parents
ILP Illegitimate Parents
Surviving
Relatives
1

LC alone

LC &
Descendants

SS

ILC

1/2
of
the
estate in equal
portions

2 1 LC, SS

1/2

1/4

3 LC, SS

1/2 in equal Same portion as 1LC

portions

4 LC, ILC

1/2 in equal
portions

5 1 LC, SS, ILC

1/2

1/2 share of 1 LC (for

each ILC)
1/4 (preferred)

1/2 share of 1 LC (for

each child)
N.B. The share of the
ILC
may
suffer
reduction pro rata

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LP &
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CIVIL LAW

because spouse
given preference
6 2 or more LC, 1/2 in equal Same as share of 1LC
SS, ILC
portions

is

1/2 share of 1 LC (for

each child)

7 LP alone

1/2

8 LP, ILC

1/4 in equal portions 1/2

9 LP, SS

1/4

10 LP, SS, ILC

1/8

1/2
1/4

11 ILC alone

1/2

1/2 in equal portions

12 ILC, SS

1/3

13 SS alone

1/2

1/3 in equal portions

*SS
alone
where
marriage is in articulo
mortis and testator
dies within 3 months
from marriage 1/3
But if they have been
living
together
as
husband and wife for
more than 5 years 1/2
14 ILP alone
15 ILP, SS

1/2
1/4

1/4

Steps in Determining the Legitime of

Compulsory Heirs
(1) Determine the gross value of the estate at
the time of the death of the testator.
(2) Determine all debts and charges which are
chargeable against the estate.
(3) Determine the net value of the estate by
deducting all the debts and charges from
the gross value of the estate.
(4) Collate or add the value of all donations
inter vivos to the net value of the estate.
(5) Determine the amount of the legitime from
the total thus found.
(6) Impute the value of all donations inter
vivos made to strangers against the

disposable free portion and restore it to the

estate if the donation is inofficious.
(7) Distribute the residue of the estate in
accordance with the will of the testator.
Remedy of a Compulsory Heir in case of
Impairment of Legitime
Extent and Nature of
Remedy
Impairment
Total omission of a
compulsory heir who is
a direct descendant or
ascendant (preterition)

Annulment
of
institution
and
reduction of legacies
and devises [Art. 854,
CC]

Testamentary
Reduction
of
the
dispositions impairing disposition insofar as

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Mediate Source; the one obligated to

reserve the property
(4) Reservatarios within the 3rd degree of
consanguinity from the Prepositus
[Cabardo v. Villanueva (1922)] belonging to
the line from which the property came

the they may be inofficious

or excessive [Art. 907,
CC]

Partial impairment

CIVIL LAW

Completion of the
legitime [Art. 906, CC]

Impairment
by Collation reduction
inofficious donations of donations [Arts. 771
and 911, CC]

Requisites for Reserva Troncal [Chua vs. CFI

(1977)]:
(a) That the property was acquired by a
descendant
(Prepositus)
from
an
ascendant or from a brother or sister
(Origin or Mediate Source) by gratuitous
title,
(b) That the Prepositus died without
(legitimate*) issue,
(c) That the property is inherited by another
ascendant (Reservista) by operation of law,
and
(d) That there are relatives within the 3rd
degree (Reservatarios) belonging to the
line from which said property came.

RESERVA TRONCAL
Art. 891, CC. The 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 such 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
said property came.
Concept of Reserva Troncal
(1) A descendant (prepositus) inherits or
acquires property from an ascendant or
from a brother or sister (origin or mediate
source) by gratuitous title
(2) The same property is inherited by another
ascendant (reservista) or is otherwise
acquired by him by operation of law from
the said descendant (prepositus)
(3) The said ascendant (reservista) must
reserve the property for the benefit of the
relatives of the deceased descendant
within the third civil degree and who
belong to the line from which the said
property came (reservatarios).

Only legitimate descendants will prevent the

property from being inherited by the legitimate
ascending line by operation of law [Balane]
3 transmissions involved: [Balane]
(1) 1st transfer by gratuitous title, from a
person to his descendant, brother or sister
(2) 2nd transfer by operation of law, from the
transferee in the 1st transfer to another
ascendant. This creates the reserva.
(3) 3rd transfer from the transferee in the
second transfer to the relatives
JURIDICAL NATURE OF RIGHTS
Nature of the reservistas right: [Balane citing
Edroso v. Sablan]
The reservistas right over the reserved
property is one of ownership
The right of ownership is subject to a
resolutory condition, i.e. the existence of
reservatarios at the time

Parties: [Balane]
(1) Origin or Mediate Source either an
ascendant of any degree of ascent or a
brother or sister of the Prepositus;
responsible for the 1st transfer
(2) Prepositus the first transferee of the
reserved property
(3) Reservista an ascendant of the
Prepositus other than the Origin or

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CIVIL LAW

(6) Prescription, when the reservista holds the

property
adversely
against
the
reservatarios, as free from reservation

The right of ownership is alienable, but

subject to the same resolutory condition.
The reservistas right of ownership is
registrable.

F. DISINHERITANCE

Nature of reservatarios right: [Sienes v.

Esparcia]
The reservatarios have a right of expectancy
over the property.
The right is subject to a suspensive condition,
i.e. the expectancy ripens into ownership if
the reservatarios survive the reservistas.
The right is alienable but subject to the same
suspensive condition.
The right is registrable.

Definition [Art. 915, CC]

(1) It is the act by which the testator
(2) For just cause
(3) Deprives a compulsory heir of his right to
the legitime.
Requisites of a Valid Disinheritance
(a) Heir disinherited must be designated by
name or in such a manner as to leave no
room for doubt as to who is intended to be
disinherited.
(b) It must be for a cause designated by law.
(c) It must be made in a valid will.
(d) It must be made expressly, stating the
cause in the will itself.
(e) The cause must be certain and true, and
must be proved by the interested heir if the
person should deny it.
(f) It must be unconditional.
(g) It must be total.

Reserva Minima vs. Reserva Maxima

(1) The
prepositus
acquired
property
gratuitously from an ascendant, a brother
or sister
(2) In his will, he institutes as his heir his
ascendant (who is also a compulsory heir)
such that the ascendant receives half of
the estate by operation of law as legitime
and the other half by testamentary
disposition

F.1. DISINHERITANCE OF CHILDREN AND

DESCENDANTS
[Art. 919, CC]

Two Views
(1) Reserva Maxima: The entire property will
be considered acquired as legitime and
therefore wholly reservable
(2) Reserva Minima: One half is reservable, the
other half is not subject to reserva troncal
[Tolentino, p. 284]

(1) When a child or descendant has been

found guilty of an attempt against the life
of the testator, his or her spouse,
descendants, or ascendants;
(2) When a child or descendant 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;
(3) When a child or descendant has been
convicted of adultery or concubinage with
the spouse of the testator;
(4) When a child or descendant by fraud,
violence, intimidation, or undue influence
causes the testator to make a will or to
change one already made;

Extinguishment of the Reserva

(1) Loss of the reservable property
(2) Death of the reservista
(3) Death of all the relatives within the third
degree belonging to the line from which
the property came
(4) Renunciation by the reservatarios
(5) Registration of the reservable property
under the Torrens system as free

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(5) A refusal without justifiable cause to

support the parent or ascendant who
disinherits such child or descendant;
(6) Maltreatment of the testator by word or
deed, by the child or descendant;
(7) When a child or descendant leads a
dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it
the penalty of civil interdiction.

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.

F.2. DISINHERITANCE OF PARENTS AND

ASCENDANTS
[Art. 920, CC]

F.3. DISINHERITANCE OF A SPOUSE

[Art. 921, CC]

(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

(1) When the spouse has been convicted of an

attempt against the life of the testator, his
or her descendants, or ascendants;
(2) When the spouse has accused the testator
of a crime for which the law prescribes
imprisonment of six years or more, and the
accusation has been found to be false;
(3) When the spouse by fraud, violence,
intimidation, or undue influence cause the
testator to make a will or to change one
already made;
(4) When the spouse has given cause for legal
separation;
(5) When the spouse has given grounds for the
loss of parental authority;
(6) Unjustifiable refusal to support the
children or the other spouse.

Summary of Causes of Disinheritance

CC 919
CC 920
Grounds for Disinheritance
Children &
Parents &
Descendants
Ascendants
1

CC 921
Spouse

CC 1032
Unworthiness

Guilty or Convicted of Attempt Against

the Life of the Testator, Spouse,
Ascendant or Descendant

2 Accused Testator or Decedent of Crime

Punishable by Imprisonment of 6 years
or more, and Found Groundless or False

3 Causes testator or decedent to Make a

Will or Change one by Fraud, Violence,

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Intimidation, or Undue Influence

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4 Unjustified Refusal to Support Testator

5 Convicted of Adultery or Concubinage

with Spouse of Testator or Decedent

6 Maltreatment of testator by Word and

Deed

7 Leading a Dishonorable or Disgraceful

Life

8 Conviction of Crime which carries the

penalty of Civil Interdiction

9 Abandonment of Children or Inducing

Children to Live Corrupt and Immoral
Life or Against Attempted Virtue

10 Loss of Parental Authority

11 Attempt by One Parent Against the Life

of the Other Unless there is
Reconciliation Between Parents

12 Spouse Has Given Cause for Legal

Separation

13 Failure to Report Violent Death of

Decedent Within One Month Unless
Authorities Have Already Taken Action

14 Force, Violence, Intimidation, or Undue

Influence to Prevent Another from
Making a Will or Revoking One Already
Made or Who Supplants or Alters the
Latters Will

15 Falsifies or Forges Supposed Will of

Decedent

Modes of Revocation of Disinheritance

(1) Reconciliation [Art. 922, CC]
(2) Subsequent institution of the disinherited
heir
(3) Nullity of the will which contains the
disinheritance.

rules on disinheritance. Thus, reconciliation

renders the disinheritance ineffective.
Reconciliation [Art. 922, CC]
Effect of Reconciliation between Offender and
Offended Person: If no disinheritance has been
made yet, the offended person will be deprived
of his right to disinherit.

Note: The moment that testator uses one of

the acts of unworthiness as a cause for
disinheritance; he thereby submits it to the

If disinheritance has been effected, it will be

rendered ineffectual.

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Persons Charged With the Duty to Give

Legacies and Devises in a Will
(1) Compulsory heir, provided, their legitimes
are not impaired [Art. 925, CC]
(2) Voluntary heir
(3) Legatee or devisee can be charged with the
duty of giving a sub-legacy or sub-devise
but only to the extent of the value of the
legacy or devise given him [Art. 925, CC]
(4) The estate represented by the executor or
administrator, if no one is charged with this
duty to pay or deliver the legacy or devise
in the will
If there is an administration proceeding,
it constitutes a charge upon the estate.
If there is no administration proceeding,
it is a charge upon the heirs.

Rights of descendants of person disinherited

[Art. 923, CC]
Disinheritance gives rise to the right of
representation in favor of the children and
descendants of the disinherited person with
respect to his legitime.
This is inconsistent with Art. 1033.
In
disinheritance, reconciliation is sufficient. It
need not be in writing. In unworthiness,
however, it needs to be in writing. [Balane]
INEFFECTIVE DISINHERITANCE [Art. 918, CC]
Instances of Ineffective disinheritance:
(1) There is no specification of the cause.
(2) The cause is not proved.
(3) The cause is not among those specified in
the provisions.

Validity and Effect of Legacy or Devise

Legacy or devise of a thing belonging to another
[Art. 930, CC]

Effect of Ineffective Disinheritance: if the

disinheritance lacks one or other of the
requisites mentioned in this article, the heir in
question gets his legitime. [Balane]
Ineffective
Disinheritance

Testator erroneously believed Void

that the property belonged to
him
The
thing
bequeathed Effective
afterwards becomes his by
whatever title

Preterition

Person
disinherited Person omitted must
may
be
any be a compulsory heir
compulsory heir
in the direct line

Legacy or devise of thing already belonging to

the legatee or devisee
The thing already belongs to Ineffective
the legatee or devisee at the
time of the execution of the
will [Art. 932, CC]

Only
annuls
the Annuls the entire
institution in so far as institution of heirs
it
prejudices
the
person disinherited

The thing is subject to an Valid only as to

encumbrance or interest of the interest or
another person [Art. 932, CC] encumbrance

G. LEGACIES AND DEVISES

Legacy

Legatee
or
devisee Ineffective
subsequently alienates the
thing [Art. 933,CC]

Devise

A gift of personal A gift of real property

property given in a will given in a will
It is bequeathed

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After alienating the thing, the Ineffective

legatee
or
devisee
subsequently reacquires it

It is devised

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gratuitously [Art. 933, CC]

or estate

After alienating the thing, the Legatee

or
legatee or devisee acquires it devisee
can
by onerous title [Art. 933, CC] demand
reimbursement
from the heir
Different Objects of Legacies and Devises [Art. 934-944, CC]
Objects of Legacy or Devise

Effect

Thing pledged or mortgaged to Estate is obliged to pay the debt

secure a debt
Other charges pass to the legatee or devisee
Credit or remission or release of Effective only as regards the credit or debt existing at the time of
the testators death
a debt
Legacy lapses if the testator later brings action against the debtor
If generic, comprises all credits/debts existing at time of execution
of will
Thing pledged by debtor

Only the pledge is extinguished; the debt remains

To a creditor

Shall not be applied to his credit unless the testator so declares

Order of payment of a debt

If testator does not really owe the debt, the disposition is void
If the order is to pay more than the debt, the excess is not due
This is without prejudice to the payment of natural obligations

Alternative legacies and devises The choice is with the heir, or the executor or administrator
If the heir, legatee or devisee dies, the right passes to their heirs
Once made, the choice is irrevocable
Legacy of generic personal Legacy is valid even if there are no things of the same kind in the
property or indeterminate real estate
Devise of indeterminate real property valid only if there are
property
immovable property of the same kind in the estate
The choice belongs to the heir, legatee or devisee or the executor
or administrator
Legacy of education

Lasts until the legatee is of age or beyond the age of majority in

order that he may finish some professional, vocational or general
course provided he pursues his course diligently
If testator did not fix the amount, it is fixed in accordance with the
social standing and circumstances of the legatee and the value of
the estate

Legacy of support

Lasts during lifetime of legatee

If the testator used to give the legatee a sum of money for support,
give the same amount unless it is markedly disproportionate to the
estate
If testator did not fix the amount, it is fixed in accordance with the
social standing and circumstances of the legatee and the value of
the estate

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Order of Payment in Case the Estate Is Not Sufficient to Cover All the Legacies and Devises
Art. 911

Art. 950
Order of Preference

Legitime of compulsory heirs

Donations inter vivos
Preferential legacies or devises
All other legacies or devises pro rata

Remuneratory legacy/devise
Preferential legacy/devise
Legacy for support
Legacy for education
Legacy/devise of specific, determinate thing
which forms a part of the estate
All others pro rata

Application
When the reduction is necessary to preserve the
legitime of compulsory heirs from impairment
whether there are donations inter vivos or not; or
When, although, the legitime has been
preserved by the testator himself there are
donations inter vivos.

When there are no compulsory heirs and the

entire estate is distributed by the testator as
legacies or devises; or
When there are compulsory heirs but their
legitime has already been provided for by the
testator and there are no donations inter vivos.

Art. 911, CC governs when there is a conflict Art. 950, CC governs when the question of
between compulsory heirs and the devisees and reduction is exclusively among legatees and
legatees.
devisees themselves.

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Delivery of Legacy/Devise [Art. 951, CC]

(1) The very thing bequeathed shall be
delivered and not its value
(2) With all its accessions and accessories
(3) In the condition in which it may be upon
the death of the testator
(4) Legacies of money must be paid in cash

CIVIL LAW

Instances when Legal or Intestate Succession

operates [Art. 960, CC]
(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
(3) Upon the expiration of term, or period of
institution of heir [Balane, 426]
(4) Upon fulfillment of a resolutory condition
attached to the institution of heir,
rendering the will ineffective [Balane, 426]
(5) When the will does not dispose of all the
property belonging to the testator. Legal
succession shall take place only with
respect to the property which the testator
has not disposed (mixed succession)
(6) If the suspensive condition attached to the
institution of the heir does not happen or is
not fulfilled
(7) If the heir dies before the testator
(8) If the heir repudiates the inheritance, there
being no substitution, and no right of
accretion takes place
(9) When the heir instituted is incapable of
succeeding, except in cases provided in the
Civil Code
(10) Preterition Intestacy may be total or
partial depending on whether or not there
are legacies or devises [Balane, 426]

Effect of ineffective legacies or devises [Art.

956, CC]
In case of repudiation, revocation or incapacity
of the legatee or devisee, the legacy or devise
shall be merged with the mass of the
hereditary estate, except in cases of
substitution or accretion.
Revocation of Legacies and Devises [Art. 957,
CC]
(1) Testator transforms the thing such that it
does not retain its original form or
denomination
(2) Testator alienates the thing by any title or
for any cause. Reacquisition of the thing by
the testator does not make the legacy or
devise valid, unless it is effected by right of
repurchase.
(3) Thing is totally lost during the lifetime or
after the death of the testator
(4) Other causes: nullity of will, noncompliance with suspensive condition, sale
of the thing to pay the debts of the
deceased during the settlement of his
estate.

Note: In all cases where there has been an

institution of heirs, follow the ISRAI order:
(1) If the Institution fails, Substitution occurs.
(2) If there is no substitute, the right of
Representation applies in the direct
descending line to the legitime if the
vacancy is caused by predecease,
incapacity, or disinheritance.
(3) The right of Accretion applies to the free
portion when the requisites in Art. 1016 are
present.
(4) If there is no substitute, and the right of
Representation or Accretion are not

III. Legal or Intestate

Succession
A. GENERAL PROVISIONS
Intestacy that which takes place by operation
of law in default of compulsory and
testamentary succession. Not defined in the
Civil Code.

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proper, the rules on Intestate succession

shall apply.

CIVIL LAW

(b) Distinction between legitimate and

illegitimate filiation. The ratio under
present law is 2:1. [Art. 983, in relation
to Art. 895 as amended by Art. 176, FC]
(c) Rule of division by line in the ascending
line [Art. 987 (2), CC]
(d) Distinction between full-blood and
half-blood
relationship
among
brothers and sisters, as well as
nephews and nieces. [Art. 1006 and
1008, CC]
(e) Right of representation.
(4) Rule of Barrier between the legitimate
family and the illegitimate family (the ironcurtain rule)
The illegitimate family cannot inherit by
intestate succession from the legitimate
family and vice-versa. [Art. 992, CC]
(5) Rule of Double Share for full blood
collaterals
When full and half-blood brothers or
sisters, nephews or nieces, survive, the full
blood shall take a portion in the
inheritance double that of the half-blood.
[Arts. 895 and 983, CC]

The Intestate or Legal Heirs:

(1) Relatives
(a) Legitimate ascendants
(b) Illegitimate parents
(c) Legitimate children
(d) Illegitimate children
(e) Surviving Spouse
(f) Brothers, sisters, nephews and nieces
(BSNN)
(g) Other collateral relatives
(2) Surviving spouse
(3) State (through escheat proceedings)
Intestate succession is based on the presumed
will of the decedent. That is, to distribute the
estate in accordance with the love and
affection he has for his family, and in default of
these persons, the presumed desire to promote
charitable and humanitarian activities.
[Balane]
Fundamental Principles in Intestate Succession:
(1) Rule of Preference between Lines
Those in the direct descending line shall
exclude those in the direct ascending
and collateral lines;
Those in the direct ascending line shall,
in turn, exclude those in the collateral
line.
(2) Rule of Proximity
The relative nearest in degree excludes
the farther one [Art. 962(1), CC], saving
the right of representation when it
properly takes place.
(3) Rule of Equal Division
The relatives who are in the same degree
shall inherit in equal shares. [Arts.
962(2), 987 and 1006, CC]

Note:
If one of the legitimate ascendants,
illegitimate parents, legitimate children or
illegitimate children survives, the brother,
sisters, nephews, and nieces (BSNN) are
excluded.
If one of the legitimate ascendants,
illegitimate parents, legitimate children,
illegitimate children or surviving spouse
survives, the other collateral relatives and
the state are excluded.
If any of the heirs concur in legitimes, then
they also concur in intestacy.

A.1. RELATIONSHIP
The number of generations determines the
proximity of the relationship. Each generation
forms one degree. [Art. 963, CC]

Exceptions: [Balane, 427-428]

(a) Rule of preference between Lines

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A series of degrees forms a line. This line may

either be direct or collateral. [Art. 964, CC]
A direct line is that constituted by the series
of degrees among ascendants and
descendants.
The direct line is either ascending (brings a
person with those from whom he descends)
and descending (connecting the head of the
family with those who descend from him).
[Art. 965, CC]
A collateral line is that constituted by the
series of degrees among persons who are not
ascendants or descendants, but who come
from a common ancestor.

CIVIL LAW

portion shall accrue to the others of the same

degree.
Exception: When the right of representation
should take place.
Note: This accretion in intestacy takes place in
case of predecease, incapacity, or renunciation
among heirs of the same degree. The relatives
must be in the same relationship because of
the Rule of Preference of Lines.
Repudiation [Arts. 968-969, CC]
There is no right of representation in
repudiation. If the nearest relative/s repudiates
the inheritance, those of the following degree
shall inherit in their own right.

Note: It is important to distinguish between

direct and collateral as the direct has
preference over the collateral.

In case of repudiation by all in the same

degree, the right of succession passes on the
heirs in succeeding degrees: descending line
first, ascending line next, and collateral line
next. [Balane]

In a line, as many degrees are counted as there

are generations. [Art. 966, CC]
(1) In the direct line, ascent is made up to the
common ancestor or progenitor.
(2) In the collateral line, ascent is made to the
common ancestor. Then descent to the
person with whom the computation is to be
made.

Adoption [Art. 189, FC]

In adoption, the legal filiation is personal and
exists only between the adopter and the
adopted. The adopted is deemed a legitimate
child of the adopter, but still remains as an
intestate heir of his natural parents and other
blood relatives. (Note, however, Section 16 of
the Domestic Adoption Act [RA 8552], which
provides that all legal ties between the
biological parent(s) and the adoptee shall be
severed and the same shall then be vested on
the adopter(s).

Note: Descending line is preferred over

ascending.
Blood relationship is either full or half-blood.
[Art. 967, CC]
Note: As among brothers and sisters and
nephews and nieces, there is a 2:1 ratio for fullblood and half-blood relatives. Direct relatives
are preferred. But this distinction does not
apply with respect to other collateral relatives.

A.2. RIGHT OF REPRESENTATION

Representation 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 [Art. 970, CC]

Incapacity [Art. 968, CC]

General rule: If there are several relatives of the
same degree, and one or some of them are
unwilling or incapacitated to succeed, his

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Effect of Representation
The representative heir acquires the rights
which the person represented would have if he
were living or if he could have inherited.

CIVIL LAW

and only if they concur with at least one uncle

or aunt. In this case, they share in the
inheritance per stirpes.
If the children survive alone, they inherit in
their own right and share in equal proportions
or per capita. [Art. 975, CC]

When it occurs
Representation is allowed with respect to
inheritance conferred by law (legitime and
intestate based on Art. 923)

Right of representation in the collateral line is

only possible in intestate succession. It cannot
take place in testamentary succession.

It occurs only in the following instances: (DIP)

(1) Predecease of an heir
(2) Incapacity or unworthiness
(3) Disinheritance [Art. 923, CC]

Per stirpes
Inheritance per stirpes means that the
representative/s shall receive only what the
person represented would have received, if
he were living or could inherit. [Art.975, CC]
If there are more than one representative in
the same degree, then it shall be divided
equally, without prejudice to the distinction
between legitimate and illegitimate, if
applicable.

There is no representation in testamentary

succession. [Art. 856, CC]
There is no representation in repudiation.
A renouncer can represent, but cannot be
represented. Rationale is found in Art. 971
which states that The representative does not
succeed the person represented but the one
whom the person represented would have
succeeded.

The Double Heirship Test

In determining whether or not representation
is proper, it is necessary that the
representative must be a legal heir of both
the person he is representing and the
decedent. [Art. 973, CC]
But the representative need not be qualified
to succeed the person represented. [Art. 971,
CC] In the same manner, the person
represented need not be qualified to succeed
the decedent, as it is his disqualification
which gives rise for representation to apply.
Legitimate children may
not
be
represented
by
their
illegitimate
descendants (because of the bar in Art.
992). In contrast, illegitimate children may
be represented by their legitimate and
illegitimate descendants. [Art. 902]
Illustration: A has legitimate son J and
illegitimate son K. J has an illegitimate son
J-1 while K also has an illegitimate son K-1.
K-1 may inherit from A by representation of

Representation in the Direct Descending Line

Representation takes place ad infinitum in the
direct descending line but never in the direct
ascending line. [Art. 972, CC]
General rule: Grandchildren inherit from the
grandparents by right of representation, if
proper.
Exception: Whenever all the children repudiate,
the grandchildren inherit in their own right
because representation is not proper. [Art.
969, CC]
Representation in Collateral Line
In the collateral line, representation takes
place only in favor of the children of the
brothers or sisters (i.e., nephews and nieces)
whether of the full or half-blood [Art. 972, CC]

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K (under Art. 902), but J-1 may not inherit

from A (because of the barrier under Art.
992)

CIVIL LAW

the former in the inheritance of the parents

or ascendants of the adopter. The adopted
child is not related to the deceased in that
case, because filiation created by fiction of
law is exclusively between the adopter and
the adopted. [Tolentino, 448-449]

Representation in Adoption
If the adopting parent should die before the
adopted child, the latter cannot represent

B. ORDER OF INTESTATE SUCCESSION

Decedent is a Legitimate Child
1

Decedent is an Illegitimate Child

Decedent is an Adopted Child

Legitimate
children
descendants (LCD)

or Legitimate
children
descendants (LCD)

or Legitimate
children
descendants (LCD)

or

2 Legitimate
parents
ascendants (LPA)

or Illegitimate
children
descendants (LPA)

or Illegitimate
children
descendants (ICD)

or

3 Illegitimate
children
descendants (ICD)

or Illegitimate parents (IP)

4 Surviving spouse (SS)

Surviving spouse (SS)

Legitimate
or
illegitimate
parents,
or
legitimate
ascendants, adoptive parents
Surviving spouse (SS)

5 Brothers and sisters, nephews, Illegitimate

brothers
and Brothers and sisters, nephews,
sisters,
nephews,
nieces nieces (BS/NN)
nieces (BS/NN)
(IBS/NN)
6 Legitimate collateral relatives State
within the 5th degree (C5)

State

7 State
Rules of Exclusion and Concurrence in Intestate Shares
Intestate Heirs

Excluded By

Excludes

Concurs With

LC + LD

Ascendants, Collaterals No one

and State

SS + ILC

ILC + D

ILP, Collaterals
State

SS, LC, LP

LP + LA

Collaterals and State

LC

ILC + SS

ILP

Collaterals and State

LC and ILC

SS

SS

Collaterals other than No one

siblings, nephews and
nieces, State

Siblings,
Nieces

and No one

Nephews, All other collaterals and LC, ILC, LP, ILP

State

LC, ILC,
Siblings,
Nieces

LP, ILP,
Nephews,

SS

Other collaterals within Collateral more remote LC, ILC, LP, ILP and SS
in degree and State
5th degree

Collaterals in the same

degree

State

No one

No one

Everyone

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Outline of Intestate Shares

(1) Legitimate children only
Divide entire estate equally among all
legitimate children [Art. 979, CC]

Divide the entire estate equally but with the

observance of the rule of division by line.
[Art. 987, CC]
(7) Legitimate parents and illegitimate children
Legitimate parents get of the estate,
illegitimate children get the other . [Art.
991, CC]

Legitimate children include an adopted

child.
(2) Legitimate children and Illegitimate children
Divide entire estate such that each
illegitimate child gets of what a
legitimate child gets [Art. 983, CC and Art.
176, FC]

(8) Legitimate parents and surviving spouse

Legitimate parents get of the estate; The
surviving spouse gets the other . [Art. 997,
CC]
(9) Legitimate parents, surviving spouse and
illegitimate children
Legitimate parents get of the estate;
surviving spouse and the illegitimate child
each get each, the latter to share among
themselves if more than one. [Art. 1000, CC]

Ensure that the legitime of the legitimate

children are first satisfied.
(3) Legitimate children and surviving spouse
Divide entire estate equally between the
legitimate children and the surviving
spouse, the latter deemed as one child. The
same rule holds where there is only one
child.

(10) Illegitimate children only

Divide the entire estate equally. [Art. 988,
CC]

Children as used in Art. 996 is interpreted

to include a situation where there is only
one child.

(11) Illegitimate children and surviving spouse

Illegitimate children get of the estate; the
surviving spouse gets the other . [Art. 998,
CC]

(4) Legitimate children. Surviving spouse, and

Illegitimate children
Divide the entire estate such that the
surviving spouse is deemed one legitimate
child and each illegitimate child getting
of what the legitimate child gets. [Art. 996,
CC and Art. 176, FC]

(12) Surviving spouse only

Entire estate goes to the surviving spouse.
[Art. 994/995, CC]
(13) Surviving spouse and illegitimate parents
Illegitimate parents get and the spouse
gets the other . [by analogy with Art. 997,
CC]

Ensure that the legitime of the legitimate

children and the spouse are first satisfied.

(14) Surviving spouse and legitimate brothers

and sisters, nephews and nieces
Surviving spouse gets of the estate, while
the rest gets the other with the nephews
and nieces inheriting by representation if
proper. [Art. 1001]

(5) Legitimate parents only

Divide the entire estate equally. [Art. 985,
CC]
(6) Legitimate
parents)

ascendants

only

CIVIL LAW

(excluding

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CIVIL LAW
Note: the nearer relative excludes the more
remote relatives.

(15) Surviving spouse and illegitimate brothers

and sisters, nephews and nieces
Surviving spouse gets of the estate while
the rest gets the other with the nephews
and nieces inheriting by representation, if
proper; Note that all the other relatives
should be illegitimate because of the ironcurtain rule. [Art. 994, CC]

(22)
State
If there are no other intestate heirs, the
State inherits the entire estate through
escheat proceedings. [Art. 1011, CC]

IV. Provisions Common

to Testate and Intestate
Succession

(16) Illegitimate parents only

Entire estate goes to the illegitimate
parents. [Art. 993, CC]
(17) Illegitimate parents and children of any kind
(whether legitimate or illegitimate child)
Illegitimate parents are excluded and do
not inherit; For the rule on the respective
shares of the children, see numbers 1, 2 or
10, whichever is applicable.

A. RIGHT OF ACCRETION
Definition of Accretion [Art. 1015, CC]
It 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 one who
renounces or cannot receive his share or who
died before the testator is added or
incorporated to that of his co-heirs, co-devisees,
or co-legatees.

(18) Legitimate brothers and sisters only

Divide the entire estate such that full-blood
brothers/sisters gets a share double the
amount of a half-blood brother or sister.
[Art. 1004 and 1006, CC]

Requisites: [Tolentino p. 497-499]

(a) Unity of object and plurality of subjects (two
or more persons are called to the same
inheritance or same portion thereof)
(b) Vacancy of share (one of the heirs dies
before the testator, or renounces the
inheritance, or is incapacitated)

(19) Legitimate brothers and sisters, nephews

and nieces
Divide the entire estate observing the 2 is to
1 ratio for full and half-blood relationships
with respect to the brothers and sisters,
with the nephews and nieces inheriting by
representation, if proper. [Art. 1005 & 1008,

When does Accretion Occur?

Accretion happens when there is repudiation,
incapacity, or predecease of an heir. (RIP)

CC]
(20)
Nephews and nieces only
Divide the entire estate per capita,
observing the 2 is to 1 ratio. [Arts. 975 and
1008, CC]

It is the mechanism where the share of an heir is

increased by vacant shares vacated by heirs who
cannot inherit for various reasons. (Rationale:
the decedent intended to give the property to
nobody but the co-heirs.)

(21) Other collaterals [Arts. 1009 and 1010]

Divide entire estate per capita. Collateral
relatives must be with the 5th degree of
consanguinity.

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There can only be accretion if there is an

institution of heirs with respect to specific
properties. [Art. 1016, CC]

CIVIL LAW

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. [Art. 1020, CC]

Among compulsory heirs, there can only be

accretion with respect to the free portion. There
can be no accretion with respect to the
legitimes. [Arts. 1021 and 1018, CC]

In testamentary succession, when the right of

accretion does not take place, the vacant
portion of the instituted heirs, if no substitute
has been designated, shall pass to the legal
heirs of the testator, who shall receive it with
the same charges and obligations. [Art. 1022,
CC]

The heirs to whom the portion goes by the right

of accretion take it in the same proportion that
they inherit. [Art. 1019, CC]
Exceptions [Balane]
(1) In testamentary succession, if the testator
provides otherwise
(2) If the obligation is purely personal, and
hence intransmissible

Accretion shall also take place among devisees,

legatees and usufructuaries under the same
conditions established for heirs. [Art. 1023, CC]

Effect of Predecease, Incapacity, Disinheritance or Repudiation

Cause of Vacancy

Testamentary Succession

Intestate Succession

Legitime

Free Portion

Predecease

Representation
Intestate Succession

Accretion
Intestate Succession

Representation
Intestate
Succession

Incapacity

Representation
Intestate Succession

Accretion
Intestate Succession

Representation
Intestate Succession

Disinheritance

Representation
Intestate Succession

Repudiation

Intestate Succession

Accretion
Accretion
PERSONS INCAPABLE OF SUCCEEDING [Arts.
1027, 739, 1032]

B. CAPACITY TO SUCCEED BY WILL

OR INTESTACY

Based on undue influence or interest [Art. 1027,

CC]
(1) Priest who heard the last 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) Individuals, associations and corporations
not permitted by law to inherit;
(3) Guardian with respect to testamentary
dispositions given by a ward in his favor
before the final accounts of the

Requisites for Capacity to Succeed by Will or by

Intestacy: [Art. 1024 1025, CC]
(a) The heir, legatee or devisee must be living
or in existence at the moment the
succession opens; [Art 1025] and
(b) He must not be incapacitated or
disqualified by law to succeed. [Art 1024,
par.1]

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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;
(4) Relatives of the 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;
(5) Attesting witness to the execution of a will,
the spouse, parents, or children, or any one
claiming under such witness, spouse,
parents, or children;
(6) Physician, surgeon, nurse, health officer or
druggist who took care of the testator
during his last illness.

CIVIL LAW

(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.

Based on morality or public policy [Arts. 739

and 1028, CC]
(1) Those made in favor of a person with
whom the testator was guilty of adultery or
concubinage at the time of the making of
the will.
(2) Those made in consideration of a crime of
which both the testator and the beneficiary
have been found guilty.
(3) Those made in favor of a public officer or
his spouse, descendants and ascendants,
by reason of his public office.

Pardon of Acts of Unworthiness

Based on acts of unworthiness [Art. 1032, CC]

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;

Express

Implied

Made by the execution

of a document or any
writing in which the
decedent
condones
the cause of incapacity

Effected when the

testator makes a will
instituting
the
unworthy heir with
knowledge of the
cause of incapacity

Cannot be revoked

Revoked when the

testator revokes the
will or the institution

Unworthiness vs. Disinheritance

357

Unworthiness

Disinheritance

Unworthiness renders
a person incapable of
succeeding to the
succession, whether
testate or intestate

Disinheritance is the
act by which a
testator, for just cause,
deprives a compulsory
heir of his right to the
legitime [Art. 815, CC]

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(1) Express Acceptance one made in a public

or private document. [Art. 1049 par. 1]
(2) Tacit Acceptance one resulting from acts
by which the intention to accept is
necessarily implied or from acts which one
would have no right to do except in the
capacity of an heir.
(3) Implied Acceptance - 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. [Art 1057,
CC]

Determination of Capacity [Tolentino p. 539]

General Rule: At the death of the decedent
[Art. 1034, CC]
Exceptions:
(1) Those falling under 2, 3, and 5 of Art. 1032
when the final judgment is rendered
(2) Those falling under 4 of Art. 1032 when
the month allowed for the report expired
(3) If the institution is conditional when the
condition is complied with

C. ACCEPTANCE AND REPUDIATION

OF THE INHERITANCE
Characteristics [Arts. 1041 1042, 1056, CC]
(1) Acceptance and repudiation must be
voluntary and free [Art. 1041, CC]
(2) They are irrevocable except if there is
vitiation of consent or an unknown will
appears [Art. 1056, CC]
(3) They have a retroactive effect [Art. 1042,
CC]

An inheritance is deemed accepted:

(a) If the heir sells, donates, or assigns his
right to a stranger, or to his co-heirs, or
to any of them the heir must first
accept the inheritance before he can
dispose of it.
(b) If the heir renounces the same, even
though gratuitously, for the benefit of
one or more of his co-heirs this is
actually a donation. The heir must first
accept the inheritance before he can
donate it.
(c) If the heir renounces it for a price in
favor of all his co-heirs indiscriminately
this is actually an onerous
disposition. The heir must first accept
the inheritance before he can dispose
of it.

Requisites [Art. 1043, CC]

(a) Certainty of death of the decedent
(b) Certainty of the right to the inheritance
Acceptance
Involves the
confirmation of
transmission of
successional rights

CIVIL LAW

Repudiation
Renders the
transmission of
successional rights
ineffective
Equivalent to an act
of disposition or
alienation
Publicity
requirement is
necessary for the
protection of other
heirs and creditors

Note: But if the renunciation should be

gratuitous, and in favor of all the co-heirs (to
whom the portion renounced should devolve
by accretion), the inheritance shall not be
deemed as accepted. [Art. 1050] This is a true
case of renunciation.
Forms of Repudiation [Art. 1051, CC]

Forms of Acceptance [Arts. 1049 1050, CC]

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CIVIL LAW

Rationale for collation: If donations inter vivos

will not be collated, then the rule on legitimes
shall be circumvented or disregarded.

(1) in In a public instrument acknowledged

before a notary public; or
(2) In an authentic document equivalent of
an indubitable writing or a writing whose
authenticity is admitted or proved; or
(3) By petition presented to the court having
jurisdiction over the testamentary or
intestate proceeding

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 compulsory heir) or on the
free portion (if the donee is a stranger, i.e.,
not a compulsory heir). [Balane, p. 522]
(3) Reduction determining to what extent
the donation will remain and to what
extent it is excessive or inofficious.
(4) Restitution returning or the act of
payment of the excess to the mass of
hereditary estate.

Heirs in Two Capacities [Art. 1055, CC]

(1) If a person is called to the same
inheritance as an heir by will and by law
and he repudiates the inheritance in his
capacity as a testamentary heir, he will be
considered to have also repudiated the
inheritance as a legal heir.
(2) If he repudiates it as a legal heir, without
knowledge of his being a testamentary
heir, he may still accept it in the latter
capacity.

D. COLLATION

Persons Obliged to Collate

General rule: Compulsory heirs
Exceptions:
(1) When the testator should have so expressly
provided [Art. 1062, CC]
(2) When the compulsory heir should have
repudiated his inheritance [Art. 1062, CC]

Concept of Collation
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 by donation or other
gratuitous title but which the law considers as
an advance from the inheritance. [Art. 1061,
CC]

Grandchildren who survive with their uncles,

aunts, or first cousins and inherit by right of
representation [Art. 1064, CC]

It is the act by virtue of which, the compulsory

heir who concurs with other compulsory heirs
in the inheritance brings back to the common
hereditary mass the property which they may
have received from the testator so that a
division may be effected according to law and
the will of the testator.

Note: Grandchildren may inherit from their

grandparents in their own right, i.e., as heirs
next in degree, and not by right of
representation if their parent repudiates the
inheritance of the grandparent, as no living
person can be represented except in cases of
disinheritance and incapacity. In this case, the
grandchildren are not obliged to bring to
collation what their parent has received
gratuitously from their grandparent.

In reducing inofficious donations, the last to be

donated should be the first to be reduced.

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Surviving spouse is not obliged to collate.

CIVIL LAW

(3) Neither shall donations to the spouse of

the child be brought to collation; but if
they have been given by the parent to the
spouses jointly, the child shall be obliged
to bring to collation one-half of the thing
donated. [Art. 1066, CC]

What to Collate
(1) Any property or right received by
gratuitous title during the testators
lifetime [Art. 1061, CC]
(2) All that they may have received from the
decedent during his lifetime. [Art. 1061, CC]
(3) 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. [Art. 1068,
CC]
(4) 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. [Art. 1069, CC]

Note: 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. [Art. 1065, CC]

E. PARTITION AND DISTRIBUTION

OF ESTATE
E.1. IN GENERAL
Separate, Divide, Assign. Partition is the
separation, division and assignment of a thing
held in common among those to whom it may
belong. The thing itself or its value may be
divided. [Art. 1079, CC]

Note: Only the value of the thing donated shall

be brought to collation.

Owned in common. Before partition, the whole

estate of the decedent is owned in common by
the heirs. [Art. 1078, CC]

PROPERTIES NOT SUBJECT TO COLLATION

Thing or value may be divided. [Art. 1079]

Absolutely no collation
Expenses for support, education (only
elementary
and
secondary),
medical
attendance, even in extraordinary illness,
apprenticeship, ordinary equipment, or
customary gifts [Art. 1067, CC]

Acts deemed partition. Every act which is

intended to put an end to indivision among
heirs and legatees or devisees is deemed a
partition, although it should purport to be a
sale, an exchange, a compromise, or any other
transaction. [Art. 1082, CC]

Generally not imputable to legitime/ cannot be

collated, subject to exceptions
(1) Expenses incurred by parents in giving
their children professional, vocational or
other career unless the parents so provide,
or unless they impair the legitime. [Art.
1067, CC]
(2) Wedding gifts by parents and ascendants,
consisting jewelry, clothing and outfit,
except when they exceed 1/10 of the sum
disposable by will. [Art. 1070, CC]

A void partition may be valid if:

(1) The will was in fact a partition
(2) The beneficiaries of the void will were legal
heirs
The titles of acquisition or ownership of each
property shall be delivered to the co-heir to
whom said property has been adjudicated.
[Art. 1089, CC]

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CIVIL LAW

Prohibition to Partition
(1) The prohibition to partition for a period not
exceeding 20 years can be imposed even
on the legitime.
(2) If the prohibition to the partition is for
more than 20 years, the excess is void.
(3) Even if a prohibition is imposed, the heirs
by mutual agreement can still make the
partition.

JUDICIAL vs. EXTRAJUDICIAL PARTITION

Judicial Partition done by Court pursuant to
an Order of Distribution which may or may not
be based on a project of partition.
Extra-judicial partition made by the decedent
himself by an act inter vivos or by will or by a
third person entrusted by the decedent or by
the heirs themselves. [Paras]
Partition Inter Vivos: It is one that merely
allocates specific items or pieces of property
on the basis of the pro-indiviso shares fixed
by law or given under the will to heirs or
successors. [Art. 1080, CC]

Effects of Inclusion of Intruder in Partition [Art.

1108, CC]
(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. The partition with respect to
the mistaken heir is void. [Sempio-Dy]

Who May Effect Partition

(1) The Decedent, during his lifetime by an act
inter vivos or by will [Art.1080, CC]
(2) The decedents heirs [Art.1083, CC]
(3) A competent court [Art. 1083,CC]
(4) A third person not an heir designated by
the decedent [Art.1081, CC]
Who Can Demand Partition
(1) Compulsory heir
(2) Voluntary heir upon fulfillment of condition
if any [Art. 1084, CC]
(3) Legatee or devisee
(4) Any person who has acquired interest in
the estate

Right of Redemption in Partition

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 [Art. 1088, CC]

When Partition Cannot Be Demanded

(1) When expressly Prohibited by the testator
for a period not exceeding 20 years [Art.
1083, CC]
(2) When the co-heirs Agreed that the estate
shall not be divided for a period not
exceeding 10 years, renewable for another
10 years
(3) When Prohibited by law
(4) When to partition the estate would render
it unserviceable for the use for which it is
intended

Strangers those who are not heirs on the

succession.

E.2. EFFECTS OF PARTITION

Effect
A partition legally made confers upon each
heir the exclusive ownership of the property
adjudicated to him [Art. 1091, CC]
Warranty
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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 [Art. 1092, CC]

CIVIL LAW

The obligation of warranty among co-heirs

shall cease in the following cases:
(1) 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. [Art. 1096, CC]

The reciprocal obligation of warranty shall be

proportionate to the respective hereditary
shares of the co-heirs;
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.
Those who pay for the insolvent heir shall have
a right of action against him for
reimbursement, should his financial condition
improve [Art. 1093, CC]

E.3. RESCISSION AND NULLIFICATION

OF PARTITION
Causes for Rescission or Annulment
(1) A partition may be rescinded or annulled
for the same causes as contracts. [Art.
1097, CC]
(2) 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 onefourth, than the share to which he is
entitled, considering the value of the
things at the time they were adjudicated
[Art. 1098, CC]
This article applies only to cases of
partition among-coheirs
Lesion is the injury suffered in
consequence of inequality of situation by
one party who does not receive the full
equivalent for what she gives in a sale or
any commutative contract
(3) 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 be reasonably be
presumed, that the intention of the
testator was otherwise. [Art. 1099, CC]

An action to enforce the warranty among the

co-heirs must be brought within ten years from
the date the right of action accrues. [Art. 1094,
CC]
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. [Art. 1095, CC]
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. [Art. 1095,
CC]
End of Warranty

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(4) Preterition of a compulsory heir in the

partition [Art. 1104, CC]:
Partition shall not be rescinded unless
bad faith or fraud on the part of other
heirs is proved.
The culpable heirs shall share in the
damages of the prejudiced compulsory
heir proportionately.
(5) A partition which includes a person
believed to be an heir, but who is not, shall
be void only with respect to such person.
[Art. 1105, CC]

CIVIL LAW

Nullity the act is supposed to never have

existed
Rescission the act is valid at the origin
though it afterwards became ineffective
Important Periods in Partition
Testator, if publicly known to
1 month or
be insane, burden of proof is
less
before
on the one claiming validity of
making a will
the will
Maximum period testator can
20 years
prohibit
alienation
of
dispositions
5 years from
To claim property escheated
delivery to the
to the State
State
To report knowledge of violent
1 month
death of decedent lest he be
considered unworthy
5 years from
Action for declaration of
the
time
incapacity & for recovery of
disqualified
the inheritance, devise or
person took
legacy
possession
30 days from
Must
signify
issuance
of
acceptance/repudiation
order
of
otherwise, deemed accepted
distribution
1 month form Right to repurchase hereditary
written notice rights sold to a stranger by a
of sale
co-heir
To enforce warranty of
title/quality
of
property
10 years
adjudicated to co-heir from
the time right of action
accrues
To enforce warranty of
5 years from solvency of debtor of the
partition
estate at the time partition is
made
4 years from Action for rescission of
partition
partition on account of lesion

The action for rescission on account of lesion

shall prescribe after four years from the time
the partition was made. [Art. 1100, CC]
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:
(1) By payment in cash or
(2) By the delivery of a thing of the same kind
and quality as that awarded to the
plaintiff.
If a new partition is made, it shall affect neither
those who have not been prejudiced nor those
who have not received more than their just
share [Art. 1101, CC]
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
[Art. 1102, CC]
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. [Art. 1103, CC]
Difference of Nullity from Rescission
363