LECTURE OF JUDGE ANTONIO C.

LUBAO
ON WILLS AND SUCCESSION

Title IV. SUCCESSION

Chapter 1
GENERAL PROVISIONS
Art. 774. Succession is 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. (n)
Nota Bene: If ever you are asked to define succession in the bar examination, it is safe to
quote verbatim the provisions of Article 774 of the Civil Code.
Do not confuse inheritance with succession. Inheritance is the universality or entirety of the
property, rights and obligations of a person who has died. It refers to the objective element of
succession, to the mass or totality of the patrimony of a deceased person. Succession, on the
other hand, refers to the legal mode by which this inheritance is transmitted to the person
entitled to it who may survive the deceased.
Art. 775. In this title, decedent is the general term applied to the person whose property is
transmitted through succession, whether or not he left a will. If he left a will he is also called the
testator. (n)
This article is self-explanatory
Art. 776. The inheritance includes all the property, rights and obligations of a person which
are not extinguished by his death. (659)
What is included in the inheritance of a deceased person? It is evident from this article that
the inheritance does not include everything that belongs to the deceased at the time of his
death. His inheritance is limited to his property, rights and obligations not extinguished by his
death. In addition, however, to the transmissible rights and obligation existing at the time of the
decedents death, all properties accruing thereto from that time will pertain to the heir.
To determine what the inheritance includes, we can, by exclusion, enumerate the rights and
obligations which are extinguished by death. Thus, those not included in the enumeration would
be part of the inheritance. Some of these are as follows:
Those arising from marriage, either with respect to the person or as regards the property of the
spouses.

The action for legal separation, which belongs only to the innocent spouse.
The action to annul marriage.
The obligation to give support, except in cases expressly provided by law.
The right to receive support.
The rights of patria potestas.
The right of a guardian.
The right of usufruct.
The right of a donor to revoke the donation by reason of ingratitude of the donee, if he does not
revoke the donation even if he can do so.
The right arising from agency; but not the effects of the agency already executed.
Criminal responsibility.
It is evident that the above enumeration cannot be complete as to cover every case. In general,
however, rights arising from public law, such as suffrage and public employment and private
rights founded on purely personal relations, or whose duration is limited by law to the lifetime of
the owner, or which require the intervention of the owner for their exercise, are intransmissible.
The following general rule can be laid down in determining whether or not a right is
transmissible or intransmissible.
First: That rights which are purely personal, not in the accurate equivalent of the term in
contractual obligation, but in its proper sense, are, by their nature and purpose, intransmissible,
for they are extinguished by death. Examples, those relating to civil personality, to family rights,
and to the discharge of public office.
Second: That rights which are patrimonial or relating to property are, as a general rule, not
extinguished by death and properly constitute part of the inheritance, except those expressly
provided by law or by the will of the testator, such as usufruct and those known as personal
servitudes.
Third: That rights or obligations are by nature transmissible and may constitute part of the
inheritance, both with respect to the rights of the creditor and as regards the obligation of the
debtor. This third rule has three exceptions, especially with respect to obligation of the debtor.
They are: (1) those which are personal, in the sense that the personal qualification and
circumstances of the debtor have been taken into account in the creation of the obligation, (2)
those that are transmissible by express agreement or by will of the testator and (3) those that
are transmissible by express provision of law, such as life pension given under contract.
CONDE VS. ABAYA, 13 Phil. 240: After death of an unacknowledged natural child, the mother of
such presumed natural child, as heir to the latter brought an action for acknowledgement of her
deceased child by his presumed natural father. Will the action prosper? Answer: No, the action
will not prosper. The right of an illegitimate child to claim for recognition is not transmissible. The
right being personal to the illegitimate child must be exercised by him during his lifetime.
LEDESMA vs, McLACHLIN, 66 Phil. 547: Lorenzo Quito executed a promissory note in favor of

the plaintiff. Before he could pay the note in full, he died without any inheritance; hence, no
proceeding for the settlement of his estate was instituted. Later, his father Eusebio Quitco died,
leaving as heirs his grand children, the children of Lorenzo. Plaintiff now seeks to collect the
promissory note in the instate proceeding for the settlement of the estate of Eusebio Quitco.
HELD: The promissory note cannot be collected from the estate of Eusebio Quitco, because he
was not the one who executed it. Lorenzo died without leaving any property. His debts cannot
be charged against the properties left by his father. It is true that the grandchildren represent
their father in the properties of their grandfather, but this right of representation does not make
such grandchildren answerable for the obligations contracted by their deceased father, because
the heirs only
answer with the properties received from their predecessor. The grandchildren are not bound to
pay the debts of the father from whom they did not receive any inheritance.
Please note that some obligations of the decedent are also part of his inheritance. However, for
such obligation to be part of the inheritance of a deceased person, the obligation must be
transmissible and must be chargeable to the estate of the decedent. These are monetary
obligations which are chargeable to the estate of the deceased. Please note also that there are
obligations which are not monetary debts of the deceased but which nevertheless constitute as
a charge against the hereditary property. Thus, if the decedent is a lessee for a definite period,
paying periodical rental, then his heirs will inherit the obligation to pay the rentals as they fall
due together with the rights arising from the lease contract. Heirs are also obliged to deliver a
parcel of land sold by their parents to the vendee thereof.
Art. 777. The rights to the succession are transmitted from the moment of death of the
decedent. (657a)
THE PRECISE MOMENT OF TRANSMISSION OF SUCCESSIONAL RIGHTS - Whatever
commentaries you may read, always bear in mind that THE MOMENT OF DEATH IS THE
DETERMINING POINT WHEN THE HEIR ACQUIRE A DEFINITE RIGHT TO THE
INHERITANCE, WHETHER SUCH RIGHT BE PURE OR CONDITIONAL. The right of the heirs
to the property of deceased is vested upon them at the moment of death of the latter. This is
true even in the mean time, they are not yet declared by a competent court as heirs of the
decedent. It is immaterial whether a short or a long period of time elapses between the death of
the predecessor and the entry in the possession of the properties of the inheritance, because
the right is always deemed to retroact to the moment of death.
QUION vs. CLARIDAD, 74 Phil. 100. The appellants are children of deceased by his first
marriage. Upon his death, they filed intestate proceedings for the settlement and distribution of
his estate. They concealed from the court the fact that the deceased left a second wife with
whom he had two children. The proceedings terminated, and all the property of the deceased
was adjudicated to the appellants. More than two years later, the children of the second
marriage learned of the fraudulent prosecution of the intestate proceedings. They instituted this
action to be declared entitled to one-half of the properties of their deceased father. The
appellants contend that since the intestate proceedings had been finished, the distribution can

no longer be questioned by anyone. HELD: The children of the second marriage must be
recognized as co-owners of the property left by the deceased, and they are entitled to the
possession of the portion corresponding to them.
Their right of ownership over their share in the inheritance was automatically and by operation
of law vested in them upon the death of the deceased. They may therefore maintain the present
action to obtain relief from the fraudulent acts of the appellants.
Nota Bene: Since the moment of death is the focal point to determine the exact moment of the
transmission of the successional rights to an heir, you must know what constitute the death of a
person and also know the legal presumption of death under articles 390 and 391 of the Civil
Code.
In connection with the term death, it should be borne in mind that it is not limited to natural or
physical demise of a person. The term includes presumed death occasioned by prolonged
absence.
Under Article 390, after an absence of ten years, a person shall be presumed dead for the
purpose of opening his succession; but if he disappeared after the age of seventy-five years, an
absence of five years will be sufficient in order that his succession may be opened. The death is
considered to have taken place on the last day of the period of absence required by the law.
Please note that under Article 391 of the Civil Code, the following are presumed dead for all
purposes, including the division of his estate among his heirs:
A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who
has not been heard of for four years since the loss of the vessel or the aeroplane;
A person in the armed forces who has taken part in war, and has been missing for four years;
A person whose has been in danger of death under other circumstances and his existence has
not been known for four years.
In these cases, the disappearance is not under ordinary circumstances which would merely
create a doubt as to the existence of the absent person; their disappearance is under
circumstances which give rise to the conviction or belief that they are victims of some
catastrophe or fatal event. In such cases, the presumptive death is fixed on the very day of the
occurrence of the event which has occasioned death.
Art. 778. Succession may be:
Testamentary;
Legal or intestate; or
Mixed (n)
Art. 779. Testamentary succession is that which results from the designation of an heir, made in
a will executed in the form prescribed by law. (n)

Art. 780. Mixed succession is that effected partly by will and partly by operation of law. (n)
Art. 781. The inheritance of a person includes not only the property and transmissible rights
and obligations existing at the time of his death, but also those which have accrued since the
opening of the succession. (n)
Art. 782. An heir is a person called to the succession either by the provision of a will or by
operation of law.
Devisees and legatees are persons to whom gifts or real and personal property are
respectively given by virtue of a will. (n)
Kinds of Heirs Heirs may be (1) compulsory, (2) voluntary or testamentary, and (3) legal or
intestate.
Compulsory Heirs are those who succeed by force of law to some portion of the inheritance,
in an amount predetermined by law, of which the testator cannot deprive them, except by a valid
disinheritance.
Voluntary or Testamentary Heirs are those who are instituted by the testator in his will, to
succeed to the inheritance or the portion thereof of which the testator can freely dispose.
Legal or intestate heirs are those who succeed to the estate of the decedent who dies without a
will.
Unless otherwise provided by law, the compulsory heirs succeeds regardless of the will of the
decedent the voluntary or testamentary heirs succeeds by reason of such will; and the legal or
intestate will succeeds in the absence of such will.
Chapter 2
TESTAMENTARY SUCCESSION
Section 1. Wills
Subsection 1. Wills in General
Art. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law,
to control to a certain degree the disposition of his estate, to take effect after his death. (667a)
Nota Bene: For purposes of the bar and the examinations, it will do you good to memorize
verbatim the definition of a will as provided for under Art. 783.
Please note very will the phrase to control to a certain degree the disposition of his estate.
Under Article 783, a person is allowed only to control to a certain degree the disposition of his

estate in a will with the formalities prescribed by law, the said dispositions to take effect after his
death.
Due to the use of the phrase to take effect after his death in Article 783, the law necessarily
intends that a will must necessarily be revocable because the will does not take effect during the
lifetime of the testator but only upon the death of the later. Up to the moment of his death, the
testator is free to change his mind. He is free to change his will. He is free to change the objects
of his bounty and nobody can complaint because the will is essentially revocable at any time at
the will of the testator.
Art. 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to
the discretion of a third person, or accomplished through the instrumentality of an agent or
attorney. (670a)
This article refers to prohibited delegation. The prohibited delegation is with respect to the
making of disposition, the expression of the will of the testator. In other word, the testator is not
allowed to substitute his mind or will with that of another. However, always bear in mind that the
mechanical act of drafting the will may be done by a third person, inasmuch as such act does
not constitute a delegation of the will or disposition.
Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the
determination of the portions which they are to take, when referred to by name, cannot be left to
the discretion of a third person. (670a)
Nota Bene: The matters mentioned in Article 785 are testamentary in nature, as they
constitute the expression of the will or dispositions of the testator. Hence, following the principle
stated in Article 784, they couldnt be delegated to a third person.
Art. 786. The testator may entrust to a third person the distribution of specific property or
sums of money that he may leave in general to specified classes or causes, and also the
designation of the persons, institutions or establishments to which such property or sums of
money are to be given or applied. (671a)
Please note that the cases contemplated in Article 786 are instances where there is no
delegation of the will or testamentary dispositions because the testator has already expressed
his will, by leaving specific property or sums of money in general to specified classed or causes.
The third person entrusted to make the distribution, to the extent of choosing the persons,
institutions or establishments to which the property or money will be given or applied under the
will does not make any disposition, but simply carries out details in the execution of the
testamentary disposition made by the testator in his will.

Art. 787. The testator may not make a testamentary disposition in such manner that another
person has to determine whether or not it is to be operative. (n)

Please note that the testator is not allowed to provide in his will to allow a person to
determine whether or not the testamentary dispositions is to be operative. To delegate to a third
person the power to determine whether or not a testamentary disposition is to be operative is in
effect delegating the power to make testamentary disposition would undeniably violate the
general principle embodied in Article 784, thus, the testator is not allowed to make such
delegation in his will.
Art. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that
interpretation by which the disposition is to be operative shall be preferred.
Please note that in interpreting the will or any dispositions therein, the primordial principle is
always preference to that interpretation that will give meaning and effect to the will of the
testator. Thus, in construing the provisions of a will, substance rather than form must be
regarded, and the instrument should receive the most favorable construction to accomplish the
purpose intended by the testator. The intention of the testator is the controlling factor in the
juridical relations arising from the will; hence, it is necessary to interpret that intention rationally
and in such manner as not to render ineffective the testamentary disposition. Please always
bear in mind also that in testamentary succession the will of the testator is the first law, unless
the intention of the testator in his will is contrary to law, such intention must be given effect. By
law, means not the permissive laws but compulsory laws that will render the intention or
dispositions of the testator null and void.
Please note that in the same manner as we construe the validity of a law, the object in the
construction or the will is not to seek flaws in the instrument and declare it invalid, but rather to
sustain it if legally possible. The presumption is that the testator intended a lawful rather than an
unlawful thing, and courts will not seek an interpretation that will nullify his will or any part
thereof. Therefore, as between two interpretations, one would render the will or any part thereof
void, that interpretation that would make the will valid and operative must be prepared.
Please note very well, however, that when the language of a will or any testamentary
dispositions therein is plain and unambiguous, courts are not permitted to wrest it from its
natural meaning in order to save it from nullity. Thus when it appear that the dispositions are
plainly and unambiguously void, courts cannot save it from its obvious nullity.
Art. 789. When there is an imperfect description, or when no person or property exactly
answers the description, mistakes and omissions must be corrected, if the error appears from
the context of the will or from extrinsic evidence, excluding the oral declarations of the testator
as to his intention; and when an uncertainty arises upon the face of the will, as to the application
of any of its provisions, the testators intention is to be ascertained from the words of the will,
taking into consideration the circumstances under which it was made, excluding such oral
declaration. (n)
Please note there are two kinds of ambiguity in a will. They are:

Patent or extrinsic ambiguity; and,

Latent or intrinsic ambiguity.
A patent or extrinsic ambiguity in a will appears on the face of the will itself, such as when the
testator gives a devise or legacy in his will to to some of the six children of his brother Juan. In
this case there is an ambiguity because it cannot be determined, who among the six children of
Juan are to receive the bounty of the testator. The doubt is readily discernible from the face of
the will itself.
A latent or intrinsic ambiguity is one which cannot be seen from a mere perusal or reading of a
will, but which ambiguity arises only upon consideration of extrinsic circumstances which is
outside the will. An example is when the testator gives a legacy to my cousin Pedro, and it turns
out that he has two or more cousins named Pedro. A latent or intrinsic ambiguity may, therefore,
arise either (1) when the will names a person as beneficiary of a gift, or a thing as the subject
matter of such gift, and there are two or more persons that answer to such name, or two or
more things that meet such description, or (2) where there is a misdescription of the beneficiary
or the thing given as gift.
Parol or extrinsic evidence the weight of authority in many American jurisdictions is that parol or
extrinsic evidence is admissible to explain the will if the ambiguity is latent or intrinsic; however,
such kind of evidence is not admissible if the ambiguity is patent. Since a latent ambiguity is
disclosed only by extrinsic evidence, it may be removed of evidence of the same kind; whereas,
on the other hand, a patent ambiguity appears on the face of the will and must be explained by
construction of the will according to settled legal principles, and not by extrinsic evidence, the
intention of the testator is to be determined from the will alone.
Please note that extrinsic evidence to explain ambiguities in a will cannot include oral
declarations of the testator. Thus, by implication, written declarations of the testator are
admissible. The reason is that the admission of oral declarations of the testator, whose lips have
been sealed by death and therefore can no longer deny or affirm the truth of what witnesses
may say he declared, would create confusion and give rise to false claims. Such oral
declarations are not admissible in evidence to clarify ambiguities in a will whether made before
or after the execution of a will.
Art. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a
clear intention to use them in another sense can be gathered, and that other can be
ascertained. Technical words in a will are to be taken in their technical sense, unless the context
clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn
solely by the testator, and that he was unacquainted with such technical sense. (675a)
Please note that in testamentary succession the intent of the testator is paramount. Thus, in
testamentary succession, the intent of the testator is the first law. Thus, all rules of construction
are designed to ascertain and give effect to that intention. It is only when the intention of the

testator is contrary to law, morals, or public policy that it cannot be given effect.
The words and provision in a will must be plainly construed to avoid a violation of the
intentions of the will of the testator in his last will and testament. When the words used by the
testator is clear and unequivocal, questions arising in the courts for the construction of such
words must be resolved in accordance with the plain and literal meaning of the language of the
testator, except where it clearly appears that his intention was other than that actually
expressed.
Art. 791. The words in a will are to receive an interpretation which will give to every
expression some effect, rather than one which will render any of the expression inoperative; and
of two modes of interpreting a will, that is to be prepared which will prevent intestacy. (n)
In construing the provisions of a will, the words thereof should receive an interpretation which
will give effect to expression of the testator, rather than one which will render any of the
expression inoperative. Thus as far as possible, the apparently conflicting provisions in a will
must be harmonized to make them co-exist with each other. And of modes of interpreting a will,
that interpretation which will prevent intestacy is prepared.
What is the reason why the law prefers that interpretation of a will that will cause intestacy?
Answer: The policy of the law is to give meaning and effect to the last will and testament of the
testator. In testamentary succession, the first law is the will of the testator. Thus, where a will
has been executed, the reasonable and natural presumption is that the testator intends to
dispose of all his property. There is no presumption of an intention to die intestate as to any
portion of his estate, when the words used by the testator in his will can clearly carry the whole
estate. The presumption against intestacy is so strong that courts will adopt any reasonable
constructions of a will in order to avoid it.
Art. 792. The invalidity of one of several dispositions contained in a will does not result in the
invalidity of the other dispositions, unless it is to be presumed that the testator would not have
made such other dispositions if the first invalid disposition had not been made. (n)
Please note that whenever a probate court declares the invalidity of one of the dispositions in
a will, the invalidity of such provision does not result in the invalidity of the other dispositions,
unless it could be presumed that the testator would not have made such other dispositions if the
first invalid disposition had not been made.
Art. 793. Property acquired after the making of a will shall only pass thereby, as if the testator
had possessed it at the time of making the will, should it expressly appear by the will that such
was his intention. (n)
Please note that according to Tolentino, This article states a principle that is contrary to the
principle expressed in the other provisions of the Civil Code. According to him, this article
contravenes the provisions of articles 774, 776, 781 and 782. According to Tolentino, the

principle underlying the said articles is that the inheritance of a person includes all the property,
rights, and obligations not extinguished by his death and it includes not only those existing at
the time of death, but also those accruing thereto since such death. In other words, according to
him, if the testator merely says in his will: Hereby institute Mr. X as my sole heir, the institution
should entitle Mr. X to all the transmissible property of the testator at the time of his death, not at
the time of the making of the will. Yet, by the provisions of the present article, Mr. X would be
limited to the property at the time of the making of the will. And properties
acquired by the testator therefore cannot pass to Mr. X, because there is no express declaration
of the intention of the testator to this effect.
Please disabuse your minds about the apparent conflict of this article with the other
provisions of the Civil Code. Suffice it to say that for the purposes of the Bar Examinations and
my examinations, you should always bear in mind this principle in succession: The inheritance
includes all the property, rights, and obligations of a person not extinguished by his death, and
those accruing thereto after his death.
Art. 794. Every devise or legacy shall convey all the interest which the testator could devise or
bequeath in the property disposed of, unless it clearly appears from the will that he intend to
convey a less interest. (n)
Please Note: When the testator does not state the extent of the interest that he gives to the
legatee or devisee in the property transmitted it is understood that his whole interest passes, no
more no less. However, the testator, under the present article, may manifest his intention to
convey a less interest, in which case, the intention of the testator will be followed.
Art. 795. The validity of a will as to its form defends upon the observance of the law in force at
the time it is made. (n)
Please note that there may be cases that the law in force at the time of the making of the will
may be amended or repealed by the legislature. The amendment of the law in force at the time
of the making of will does not affect the operation of the will. The law then in force at the time of
the making of the will shall be applied with respect to any issue in connection with the validity
thereof or any provisions thereof.
In connection with the present article, please take note of the provisions of Article 16, par. 2 of
the Civil Code. Intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of the
testamentary provisions, shall be regulated by the national law of the person whose succession
is under consideration, whatever may be the nature of the property and regardless of the
country wherein the said property may be found.
Please take note also, that the place of execution has no effect upon the validity of the
provisions of the will.

Nota Bene: In case the decedent is a foreign national, the question as to what foreign law is
to govern both with respect to the order of succession, the amount of successional rights and
the intrinsic validity of his will, the foreign law governing the issue is one of fact and not of law.
Hence, the national law of that foreigner must be proven like any other fact in dispute. They may
not be taken judicial notice of except when said laws are already within the actual knowledge of
the court or they have been actually ruled upon in other cases before it and none of the parties
concerned do not claim otherwise. (Phil. Commercial and Industrial Bank vs. Escolin, 56 SCRA
266)
Subsection 2. Testamentary Capacity and Intent
Art. 796. All persons who are not expressly prohibited by law may make a will. (662)
Nota Bene:
The law presumes capacity to make a will; hence, in order that a person may be disqualified to
make one, he must be expressly prohibited by law. Mere weakness of mind or partial imbecility
from disease of body or from age does not render a person incapable of making a will.
The word person means only natural persons.
Even a spendthrift or prodigal under guardianship, can make a will, there being no
disqualification provided by law.
A person under civil interdiction can make a will; he is disqualified for dispositions of property
only by an act inter vivos, but not by act mortis causa.
Art. 797. Persons of either sex under eighteen years of age cannot make a will. (n)
Nota Bene: Because it is the policy of the law to presume that the testator has capacity to
make a will, a testator must be at least 18 years old at the time of the making of the will. It is
submitted by this representation that in the first seconds of the day of the 18th birthday of a
person, he acquires capacity to make a will. Thus if a person was born at 11:00 Oclock P.M. on
January 1st 1980, when the clock turns 12:00:01 A.M. in 1998 that person can already validly
make a will right on that moment.
Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of
its execution. (n)
Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all
his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by
disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the nature of

the estate to be disposed of, the proper objects of his bounty, and the character of the
testamentary act. (n)
Nota Bene:
The law requires that the testator be of sound mind, at the time of the execution of the will. By
this is meant that he is able to execute his will with an understanding of the nature of the act,
such as the recollection of the property he means to dispose of, of the person who are or who
might reasonably be the objects of his bounty, and the manner in which it is to be distributed to
them.
The following are the elements of testamentary capacity:
The testator must have the mental capacity to understand the nature and effects of his act; that
is, he must know that the instrument is an act mortis causa which will dispose of his property
upon his death;
He must have sufficient recollection of his properties; that is, he must comprehend their kind
and character, and be able to designate them;
He must be able to remember the natural objects of his bounty; and,
He must have sufficient mental ability to make a disposition of his property among the objects of
his bounty according to some plan which he has formed in his mind.
Nota Bene:
The term Natural Object of His Bounty refers to near relations of the testator, those who are the
natural objects of his bounty. Cousins of the second, third and fourth degree of propinquinity are
not included in the term natural objects of testators bounty.
Under Articles 798 and 799, the rule that requires the testator to be capable of ascertaining in
his mind the items of his property does not mean that he must have such information in his mind
at one time. Persons of large means rarely know precisely what property they own, or even the
nature and present condition of every item of it; these person has testamentary capacity not
because they are rich but because if given the necessary information as to the details of each
item of their property, they can readily ascertain in their mind the that they own such item and
the nature and present condition thereof. However, a testator of such feeble mental condition
that he cannot furnish his attorney details concerning his property, or so dull or obtuse as not to
know that he owned property, does not have testamentary capacity.
Please bear this in mind. Sickness, old age, deafness, senile debility, blindness, poor
memory, or the fact that somebody had to guide the testators hand in order that he might sign
the will, by themselves are not sufficient to establish presumption of lack of testamentary
capacity, when there is evidence of the mental sanity of the testator at the time of the execution
of the will.

Please also note, that the absence of testamentary capacity is not equivalent to insanity
because actual insanity need not exist in order that a person be said to lack testamentary
capacity. For a person to lack testamentary capacity, it is enough that his mental condition at the
time of the making of the will be such that there is want of understanding on his part of the
nature and consequences of the disposition by will.
ASSIGNMENT: BE SURE TO RECITE THE CASES OF BUGNAO vs. UBAG, 14 Phil. 163,
and BAGTAS VS. PAGUIO, 22 Phil. 227. BE ABLE TO DISTINGUISH THEM FROM THE
CASES OF ABQUILAN vs. ABQUILAN, 49 Phil. 450 and LIM vs. CHINCO, 55 Phil. 891.
Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the
contrary.
The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator, one month,
or less, before making his will was publicly known to be insane, the person who maintains the
validity of the will must prove that the testator made it during a lucid interval. (n)
Please note that the presumption of the law is that the testator is of sound mind. The
obligation to prove the mental incapacity of the testator rest upon those who allege such
incapacity. Thus, conclusive proof of the mental incapacity and the evident lack of reason and
judgment at the time of the execution of the will must be shown before a will may be set aside
on the ground of the mental incapacity of the testator. However, if the testator, one month, or
less, before making his will was publicly known to be insane, the person who maintains the
validity of the will must prove that the testator made the will during a lucid interval.
Art. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an
incapable validated by the supervening capacity. (n)
Art. 802. A married woman may make a will without the consent of her husband, and without
authority of the court. (n)
Art. 803. A married woman may dispose by will of all her separate property as well as her
share of conjugal partnership or absolute community property. (n)
Articles 801, 802 and 803 are all self-explanatory.
Subsection 3. Forms of Wills
KINDS OF WILLS:
ORDINARY OR NOTARIAL WILLS That which requires among other things, an attestation
clause, and acknowledgement before a notary public.
HOLOGRAPH OR HOLOGRAPHIC WILL The most important feature thereof which is its being

written entirely, from the date to the signature, in the handwriting of the testator. Here neither an
attestation clause nor an acknowledgement before a notary public is necessary.
NOTE: The Civil Code does not recognize the validity of nuncupative wills wills orally made by
the testator in contemplation of death, and before competent witness.
Art. 804. Every will must be in writing and executed in a language or dialect known to the
testator. (n)
The language or dialect used in the will must be known to the testator. When a will is
executed in a certain municipality, in the dialect currently used in such province or locality, there
arises a presumption the testator knew the dialect so used, in the absence of evidence to the
contrary. In so proving the contrary, evidence aliunde or extrinsic evidence is allowed.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testators name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses
of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left
margin, and all the pages shall be numbered correlatively in letters placed on the upper part of
each page.
The attestation shall state the number of pages used upon which the will is written, and the
fact that the testator signed the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of the instrumental witnesses, and
that the latter witnessed and signed the will and all pages thereof in the presence of the testator
and of one another.
If the attestation clause is in a language not known to the instrumental witnesses, it shall be
interpreted to them. (n)

REQUIREMENTS FOR A NOTARIAL WILL:

The will must be in writing, either, handwritten, typed, or printed; the material on which it is
written is immaterial because the validity of a will is not affected by its having been written on
poor stationary, or its non-preparation by an attorney or the absence of copies (see Vda De
Roxas v. Roxas, 48 O.G. 2177)
The will must be executed in a language known to the testator;
It must be subscribed (signed) at the end thereof by the testator himself or by the testators
name written by another person in his presence, and by his express direction;

NOTA Bene: If the will is not signed at the end thereof but somewhere else, the will is not valid
and it will be denied probate. The requirement that the will must be signed at the end thereof by
the testator or by his name written therein by some other person at his express direction and in
his presence, is so important that if after the signature there are additional clauses or provisions,
not only should these clauses be considered void, but also the whole will from beginning to end.
The Civil Code requires that the signature of the testator be placed at the end of the will.
The end of the will means the LOGICAL not the physical end of the will. Thus, if a will starts
on the 1st page, continues on the 3rd page, but is concluded on the 2nd page, the end of the
2nd page is logical end of the will (57 Am. Jur. Sec. 268).
Even if only the testators first name of the testators is signed at the end of the will without his
surname, the will is valid just the same (Yap Tua v. Yap Ka Kuan, 27 Phil. 579)
A testator can sign with his thumb mark or with his initials, or even with a rubber stamp or an
engraved dye, provided he intends the same to be his signature (See Abaya v. Zalamero, 10
Phil. 357; Leano vs. Leano, 30 Phil. 612).
But when SOMEBODY ELSE writes the testators name for him, mere placing by the testator or
a cross after his name, without there being in the will a statement that somebody had signed for
the testator is NOT SUFFICIENT, and the will is considered VOID, not because of the cross, but
because of failure to state the signing of name by somebody else (Garcia vs. La Cuesta, et al.,
L-4067, Nov. 29, 1961) The Court in the La Cuesta case said that it would have been different
had it been proved that the cross was the usual signature of the testator, or was even one of the
ways by which he signed his name. If these were so, failure to state the writing by somebody
else would have been immaterial, since he would be considered to have signed the will himself.
Somebody else may write the testators name for the latter, provided this is done in the latters
presence and the latters express direction (Art. 805).
The person writing the name of the testator should not be one of the 3 witnesses. Of course,
if there be more than 3 witnesses, one of them may sign for the testator (In re Will of Tan Diuc,
45 Phil. 807). However, according to Tolentino, the law does not specify who may sign the
testors name on the will at his request. Hence, according to him, any person may sign for him.
Even one of the subscribing or attesting witnesses may sign for the testator, citing in his book,
EX parte Leonard, 39 S.C. 518, 18 S.E. 216; Riley v. Riley, 36 Ala. 496).
The person signing for the testator does not even have to put his own name (Barut v.
Cagacungan, 1 Phil. 461). All the law requires is that he puts the name of the testator (Caluya v.
Domingo, 27 Phil. 330)
But if somebody puts his name, and omits that of the testator, this would be a substantial
violation of the law and would render the will invalid (Guison v. Concepcion, 5 Phil. 551; Bolonan
v. Abellana, et al., L-15153, Aug. 31, 1960).

NOTE: The delegate must sign in the TESTATORS PRESENCE, but this does not
necessarily mean that the testator must actually see the signing; it is enough that he could have
done so, or felt it (as when he is blind) without any physical obstruction, had he wanted to
(Jaboneta v. Gustillo, 5 Phil. 541l Yap Tua v. Yap Ka Kuan, 27 Phil. 579).
4. The will must be attested and subscribed by three or more credible witnesses in the
presence of the testator and one another
Note: This requirement is aside from the other requirement that there must be an attestation
clause, because this requires an ATTESTING. Aside from the attesting itself, there must be
PROOF OF SUCH ATTESTING, AND THE PROOF IS WHAT WE CALL THE attestation clause.
The term in the presence does not necessarily require actually seeing, but mere possibility of
seeing without any physical obstruction (Jaboneta v. Gustillo, 5 Phil. 541). Hence, when a
person merely has his back turned, the signing is done in his presence since he could have
focus his eyes in the proper direction. On the other hand, if there is a curtain separating the
testator and some witnesses from the other witnesses there would be a physical obstruction,
and the will cannot be valid (See Nera v. Rimandi, 18 Phil. 450).
In case the testator is blind, the presence may be complied with if the signing or action is
within the range of the other senses like hearing, touch, etc. of the testator. What is important is
that he realizes what is being done. An authority has referred to this as the TEST OF
AVAILABLE SENSES.
The purpose of presence is to avoid fraudulent substitution of the will; and to make it more
difficult the invention of false testimony by the witnesses, since they may be the witnesses of
one another.
It is important that the testator signs in the presence of the witnesses, hence, it he brings to their
attention a document purportedly to be his will but already previously signed, the requirement of
the law have not been complied with.
As long as the signing is done within the presence of one another, it really does not matter
much whether the witnesses signed ahead of or after the testator, as long as the signing is
sufficiently contemporaneous. In either case, the will is valid (see Gabriel v. Mateo, 51 Phil.
216).
(5) The testator or the person requested by him to write his name, and the instrumental
witnesses of the will shall sign each and every page thereof, except the last, on the left margin.
The law says page not sheet. A sheet has two pages, the front and the reverse side; if both
are used, both must be paged (In Re Estate of Saguinsin, 41 Phil. 875)

The last page need not be signed on the margin, since the signatures already appear at the
end. Hence, it is wrong to say that the last page thereof needs not be signed at all).
If the last page contains only the attestation clause, the testator needs not sign on the margin
(Fernandez vs. Vergel de Dios, 46 Phi. 922).
Whenever the marginal signatures are required, although the law say left margin, the purpose is
served if they are on the right, top or bottom margin:, for the only purpose is to identify the
pages used, and thus prevent fraud (Avena v. Garcia, 42 Phil. 145; Nayue v. Mojal, 47 Phil.
152).
Failure to have the marginal signatures of the testator and the witnesses, when needed, is a
FATAL defect (In re: Will of Prieto, 46 Phil 700). Thus, even if the second page bears the
signature or thumb mark, as the case may be, of the testator, but absent on the first page, the
will cannot be admitted to probate (Estate of Tampoy v. Alberatine, L-14322, Feb. 25, 1960).
Please be able to distinguish the case of Celso Icasiano v. Natividad Icasiano, et al., L-18979,
June 30, 1964, 11 SCRA 423) with that of Estate of Tampoy v. Alberastine, L-14322, February
25, 1920).
A credible witness is one possessed of the qualifications imposed by law. He must be
competent to testify. At the probate, however, the testimony of the witnesses need not be a
detailed or accurate account of the proceedings (Javellana v. Javelana, L-13781, Jan 30, 1960).
The witness can sign with a cross or a mark, provided that such is his usual signature, and
provided further, that he really knows how to read and write. Otherwise, he cannot of course be
a witness (Garcia v. La Cuesta, L-4067, Nov. 29, 1951) (Note continue on p. 68 of Paras)
(7) The attestation clause shall state:
The number of the pages used upon which the will is written;
Taboada v. Hon Rosal
L-36033, Nov. 5, 1982
118 SCRA 195
FACTS: The attestation clause of a notarial will failed to state the number of pages thereof.
However, it is discernible from the entire will that it really consists of only two pages, the 1st
page containing the provisions, and the end, both the attestation clause and the
acknowledgement, besides the acknowledgement itself states that This last Will and Testament
consists of two pages including this page.
HELD: Under the circumstances, the will should be allowed probate. After all, we should
approach this matter liberally.

That the testator signed, (or expressly caused another person to sign, under his express
direction) the will and every page thereof in the presence of the instrumental witnesses;
That the instrumental witnesses witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.
EXAMPLE OF A VERY SIMPLE ATTESTATION CLAUSE:
This will consisting of one page was signed by the testator and by all of us in the presence of
all of us and the testator.
Sgd: A; Sgd: B; Sgd: C
The absence of the attestation clause is a fatal defect. (In Re: Nemark, 445 Phil. 481) Moreover,
if the attestation clause is not signed by the attesting witnesses at the bottom thereof, the will is
void since the omission negatives the participation of the said witnesses (In Re Testate of
Vicente Cagro, L-5826, April 29, 1953).
While Art. 809 requires mere substantial compliance, Still, the failure of the attestation clause to
state the number of pages as fatal defect, However, even if the number of pages is put down
somewhere else in the will, as long as no evidence aliunde or extrinsic evidence is required,
there is deemed substantial compliance with the law. Singson v. Florentino, L-4603, Oct. 25,
1952; Gonzales v. Gonzales, L-3272, Nov. 29, 1951).
The attestation is, properly speaking, not part of the will itself, but same may of course be
incorporated into the will itself (Aldaba v. Roque, 43 Phil. 478). Or it may of course be written on
a separate page (Villaflor v. Tobias, 53 Phil. 714).
The attestation clause is an act of the witnesses, hence, it need not contain the signature of the
testator. If present, said signature will be treated as a mere surplusage.
While the testator is required to know the language of the will, the witnesses are not required to
know the language of the attestation clause. It is sufficient that it be translated to them (Art. 85
last par.).
Purpose of the attestation clause:
To preserve in permanent form a record of the facts attending the execution of the will so that in
case of failure of memory of the subscribing witnesses, or any other casualty, they may still be
proved. (Leynes v. Leynes, 40 O.G. No. 7, p 51);
To render available proof that there has been a compliance with the statutory requisites for the
execution of the will; and,
Incidentally, to minimize the commission of fraud or undue influence (57 Am. Jur. 221).

NOTA BENE:
An attestation clause is a memorandum of facts attending the execution of the will and is part
of the instrument wherein the witnesses certify that the instrument has been executed before
them, and the manner of its execution. It is a certification by the witnesses that the requirements
of law for the execution of the will have been complied with. Since it is a declaration made by
the witnesses and not by the testator, it need be signed only by the witnesses and not by the
testator, the will is subscribed at the end thereof by the testator alone, while the attesting
witnesses sign at the end of the attestation clause.
BAR QUESTION
Suppose the attestation clause of a notarial will fails to state that the testator signed the will in
the presence of the witnesses, will the will be considered valid or void?
Answer: It is submitted that the answer is that the will is VOID (despite substantial compliance
with Art. 809). Unless in some other part of the will, such statement is made. In no case should
evidence aliunde be allowed to prove this even if there are witnesses who can testify in court as
to this fact, their testimony should be excluded. This is because Article 809 refers only to defects
and imperfections in the form of attestation clause or the language used therein (See Testate
Estate of Pula Toray, L-2415, July 31, 1950).
NOTA BENE:
It is not essential that the will has to be read to the witnesses, or that they know their contents
(57 Am. Jur. Will, Sec. 300). While they are required to participate in the acknowledgement
before the notary public, still what they acknowledge is not the will, but the attestation clause.
Is it necessary that the notarial will be dated?
Even if erroneous, the date will not defeat a notarial will, since the law does not require it to
be dated (Padilla v. Padilla).
Note however, that a holographic will must be dated. Otherwise, it is null and void.
It is not essential to state in the attestation clause that the person delegated by the testator to
sign in his behalf did so in the presence of the testator. It is enough that it be proved in court that
this was what happened (Jollares v. Interino, L-42453) Nor is it possible to state therein that
another person requested by the testator to sign for him, when the testator himself has thumb
marked the will (Payad v. Tolentino, 6 Phil. 849).
NOTA BENE: For purpose of the Prelims, be sure to know the ruling of the Supreme Court in
the following cases:

Neyve v. Mojal, 47 Phil. 152

Sano v. Quintana, 48 Phil. 506
Gumban v. Gorecho, 50 Phil. 30
Dichoso v. De Gorostiza, 57 Phil. 437
Sebastian v. Panganiban, 50 Phil. 653
Essential requirements for notarial will other than those mentioned in Articles 804 and 805:
Art. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file another with
the office of the Clerk of Court. (n)
QUESTION: Is the acknowledgement be made in one single transaction with the execution of
the will?
Answer: There is no provision in the present code whether the acknowledgement before the
notary public and the signing of the will by the testator and the witnesses should be signed in a
single transaction. In the Spanish Civil Code (Art. 699), there was such a provision, requiring
that all the formalities prescribed by law should be performed in a single act, without any
interruption. Under the Code of Civil Procedure, which governed the execution of wills prior to
the enactment of the present Civil Code, the same principle was recognized by our Supreme
Court. However, Tolentino is of the view that, under the present Civil Code, the signing of the will
by the testator and the instrumental witnesses, and the acknowledgement thereof before the
notary public, do not have to be a single act. Thus, an interval of time may elapse between the
actual signing of the will by the testator and the witnesses and the acknowledgement before the
notary public.
The notary public does not have to be present at the execution of the will. He may of course be
present if he wants. He cannot however be one of the 3 instrumental witnesses referred to in the
law. His presence, however, is required for the acknowledgement.
Art. 807. If the testator is deaf, or deaf-mute, he must personally read the will, if able to do so;
otherwise, he shall designate two persons to read it and communicate to him, in some
practicable manner, the contents thereof. (n)
NOTA BENE: If the testator is deaf or deaf-mute and is literate, he must personally read the
will. If he is illiterate, he must designate two persons to read the will and communicate it to him
in some practicable manner, the two persons designated need not be the attesting witnesses.
Compliance of this article must be proved during the probate proceedings. It is therefore
advisable and wise to state in the notarial acknowledgement or in the attestation clause itself
that this article has been complied with. However, it is not essential to state it in the
acknowledgement or attestation clause because parol evidence is enough to prove it.

Art. 808. If the testator is blind, the will shall be read to him twice; once by one of the
subscribing witnesses, and again by the notary public before whom the will is acknowledged. (n)
NOTA BENE: The purpose of this article is to make the provisions of the will known to the
testator, so that he may object if they are not in accordance with his wishes. Failure to comply
with this article makes the will invalid (Prescilla v. Narciso, et al., 32 SCRA 490)
QUESTION: Should the will be signed and executed in the presence of the notary public?
ANSWER: The law is silent on this point, but it would seem that for the better protection of the
testator it is advisable that the will is signed by the testator and the instrumental witnesses
before the notary public so that the blind or illiterate testator may have the benefit of the notary
publics participation even before he signs the will.
QUESTION: If a person is a deaf-mute and also blind, may he still make a will?
ANSWER: No, unless in some way, the contents of the will may properly be communicated to
him in accordance with the legal requirements.
NOTE: This article should also be applied to a case of an illiterate testator who is not blind
because he is on the same plane or situation as of a blind testator because he cannot also read
the will.
Art. 809. In the absence of bad faith, forgery, or fraud, or undue influence and improper
pressure and influence, defects and imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved that the will was in fact executed and
attested in substantial compliance with all the requirements of Article 805. (n)
Effects of substantial compliance with Article 805:
Article 809 states the rule for substantial compliance with article 805. That is as long as the
purpose sought by the attestation clause is obtained, the same should be considered valid.
NOTA BENE: The law speaks not of defects of substance but defects and imperfections in
the FORM of attestation clause or the language used therein.
Art. 810. A person may execute a holographic will which must be entirely written, dated, and
signed by the hand of the testator himself. It is subject to no other form, and may be made in or
out of the Philippines, and need not be witnessed.
(678, 688a)
NOTA BENE:
There is no specific form for the validity of a holographic will. It may be made in or out of the
country and need not be witnessed. It is a must that the will must be entirely written, dated, and

signed by the hand of the testator.

Art. 811. In the probate of a holographic will, it shall be necessary that at least one witness
who knows the handwriting and signature of the testator explicitly declare that the will and the
signature are in the handwriting of the testator. If the will is contested, at least three of such
witnesses shall be required.
In the absence of any competent witness referred to in the preceding paragraph, and
if the court deem it necessary, expert testimony may be resorted to. (691a)
In the probate of a holographic will, at least one witness must be presented to probe that the
handwriting and the signature in the will is that of the testator. In the course of the testimony of
this witness, he should establish in evidence the fact that he is familiar with the handwriting and
signature of the testator by narrating circumstances why he became familiar thereto and he
must explicitly declare that the will and the signature in the will are in the handwriting of the
testator.
If the holographic will is contested at least three witnesses is necessary. In the absence of
any competent witness, and if the court deem it necessary, expert testimony may be resorted to.
Art. 812. In holographic wills, the dispositions of the testator written below his signature must
be dated and signed by him in order to make them valid as testamentary dispositions. (n)
It is possible that a testator may have already made his holographic will. But subsequent
thereto, he desired to make additional testamentary dispositions without making another will by
adding said dispositions after his signature in his holographic will. For the validity of any
additional disposition in a holographic will, it must be in the handwriting of the testator, dated,
and signed by him.
Hence, if another person under the express direction of the testator wrote the additional
disposition, even if the same be signed and dated by the testator himself, the additional
disposition is void. Also even if the disposition be in the handwriting of the testator but if it is only
signed but not dated or dated but not signed by the testator, the said disposition is void and has
no effect whatsoever.

Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the
testator must authenticate the same by his full signature. (n)
It is also possible that after the execution of a holographic will, the testator may have a
change of mind in connection with some of the testamentary dispositions he made in his will. So
there are instances that instead of making a new will, the testator merely make cancellations or
alterations or insertions in his holographic will. Thus for the validity of any insertion, cancellation,
erasure or alteration in a holographic will, the testator must authenticate the same with his full

signature. Full signature means the full or usual or customary signature of the testator.
The failure of the testator to authenticate the insertion, cancellation, erasure or alteration with
his full signature will not render the whole holographic will void. However, if what is altered or
erased was the date or the signature, the alteration without the full signature makes the whole
will void (TS, April 3, 1905).
Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in
any forms established by the law of the country in which he may be. Such will may be probated
in the Philippines. (n)
Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the
formalities prescribed by the law of the place in which he resides, or according to the formalities
observed in his country, or in conformity with those which this code prescribes. (n)
Art. 817. A will made in the Philippines by a citizen or subject of another country, which is
executed in accordance with the law of the country of which he is a citizen or subject, and which
might be proved and allowed by the law of his own country, shall have the same effect as if
executed according to the laws of the Philippines. (n)
NOTA BENE:
Art. 815 deals with a Filipino in a foreign country. Such Filipino is authorized to make a will in
any forms established by the law of the country he may be and such will may be probated in the
Philippines. It must be stressed that although a Filipino who is abroad is allowed to executed a
will in any of the forms allowed in the country where he may be, nevertheless, in the probate of
the said will in the Philippines, it must be proved that the said will complies with the intrinsic
requirements for its validity.
Note also: That in the absence of contrary proof, foreign laws on the formalities of a will are
presumed to be the same as those existing in the Philippines (*Miciano v. Brimo, 50 Phil. 867). It
has been held that if there is no proof regarding the foreign law of probate procedure and no
proof that the foreign court that approved the will is indeed a probate court, it will be presumed
that the proceedings in the matter of probate in said court are the same as those provided for
under Philippine laws. (Testate Estate of Suntay, L-3087, July 31, 1954)
Article 816 deals with an alien who is abroad. Such alien may make a will in accordance with
the formalities (extrinsic requirements for validity of the will) prescribed by the law of:
The place of his residence or domicile;
His own country or nationality;
The Philippines; or
The country where the will was executed.

Thus, if the said foreigner executed a will abroad, his will may be probated in the Philippines if it
is in accordance with the formalities prescribed by the law of the said countries, including the
Philippines.
NOTA BENE: Articles 815 and 816 refers to extrinsic requirements for the validity of a will.
Extrinsic requirements for the validity of the will must not be confused with the intrinsic
requirements. Intrinsic validity of a will is governed by Article 16 of the Civil code which reads:
Art. 16. Real property as well as personal property is subject to the law of the country where it
is situated.
However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person whose succession is under
consideration, whatever the nature of the property and regardless of the country wherein said
property may be found.
NOTA BENE:
Article 817 deals with a situation where a foreigner makes a will in the Philippines. In which
case, said foreigner may execute his will in accordance with the law of his country or in
accordance with the law of the Philippines and his will may be probated in the Philippines.
Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for
their reciprocal benefit or for the benefit of a third person. (669)
JOINT WILLS are those, which contain in one instrument the will of two or more persons
jointly signed by them.
Example: A & B, friends, made a will in one instrument, making C their heir.
RECIPROCAL OR MUTUAL WILLS are those that provide that the survivor of the testator will
succeed to all or some of the properties of the decedent.
Example: In one instrument, A made a will making B his heir. In the same instrument, B also
made a will making A his heir.
NOTE MUTUAL WILLS OR RECIPROCAL WILLS BY THEMSELVES ARE VALID, BUT IF
MADE IN ONE INSTRUMENT, THEY ARE VOID, NOT BECAUSE THEY ARE RECIPROCAL
OR MUTUAL, BUT BECAUSE THEY ARE JOINT. HENCE, JOINT WILLS, WHETHER
RECIPROCAL OR NOT ARE VOID.
REASONS WHY JOINT WILLS ARE VOID:

The execution of a will being a purely personal act, the testator must be afforded SECRECY,
which would not be attained in a joint will;
To prevent undue influence by the more aggressive testator;
In case of death of the testator at different times, probate would be harder;
It militates against the right of a testator to revoke his will at any time;
As a preventive measure for possible temptation on the part of a testator to kill his joint
testator.

Art. 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country
shall not be valid in the Philippines, even though authorized by the laws of the country where
they may have been executed. (733a)
NOTA BENE:
Effects of Joint Wills Executed abroad:
Article 819 is an expression of public policy, and is clearly one exception to the rule of lex loci
celebrationis. However, the prohibition on joint wills refers only to Filipinos. Hence, if made by
foreigner abroad, and valid in accordance with Article 816, the same should be considered as
valid here.
Thus, if a joint will is executed abroad by foreigners and valid in accordance with the law of
their nationality or the country of celebration, the same should be considered valid here. This
conclusion is drawn by clear implication of Article 819.

But, if a joint will was executed in the Philippines by foreigners, the will should be considered
void because although apparently allowed under Art. 817, still Art. 819, which refers specifically
to joint wills, and which should be considered as an expression of public policy, should prevail.

Subsection 4
WITNESSES TO WILLS
Art. 820. Any person of sound mind and of age of eighteen years or more, not blind, deaf or
dumb and able to read and write, may be a witness to the execution of a will mentioned in
Article 805 of this Code. (n)

Art. 821. The following are disqualified from being witnesses to a will:
Any person not domiciled in the Philippines;
Those who have been convicted of falsification of a document, perjury or false testimony. (n)
NOTA BENE:
The above articles provide for the qualifications for witnesses to notarial wills.
Note, however, that it is not essential for a witness to be able to speak and write the language
in which the will was written, because he does not even have to know the contents of the will
(57 Am. Jur. Wills, Sec. 311). IT IS NOT ESSENTIAL FOR THE WITNESS TO KNOW THE
LANGUAGE IN WHICH THE ATTESTATION HAS BEEN WRITTEN. It is sufficient that the same
be interpreted to him (Art. 805)
Note also: That only three crimes are mentioned in connection with the qualification of
witnesses to a will.
Falsification of a document;
Perjury and
False Testimony
PARDON: The subsequent pardon of a person convicted of the above crime, even if the
pardon be absolute, will not remove the disqualification of the convict, because an absolute
pardon does not remove civil consequences. Example: A wife convicted of adultery. Even if she
receives an absolute pardon, the husband can still file a suit for legal separation as long as the
prescriptive period has not yet lapsed.
The notary public before whom the notarial will is acknowledged is disqualified to be a
witness to said will. It would be absurd for him (as witness) to be acknowledging something
before himself (as notary public)
(Cruz v. Villasor, et al., L-32212, Nov. 26, 1973).
Art. 822. If the witnesses attesting the execution of a will are competent at the time of
attesting, their becoming subsequently incompetent shall not prevent the allowance of the will.
(n)
NOTA BENE:
Once a witness has all the qualification and none of the disqualification at the time of the
execution of the will, his subsequent incapacity is immaterial to the probate of the will.
Capacity as a witness to a will is different from capacity as a witness in court. To be a
competent witness in court, it is sufficient that a person be possessed of organs of perception,

and perceiving can make known to other what he has perceived. Hence, a seven-year-old
person may be a witness in court.
Art. 823. If a person attests the execution of a will, to whom or whose spouse, or parent, or
child, a devise or legacy is given in such will, such devise or legacy shall, so far only as
concerns such person, or spouse, or parent, or child of such person, or any one claiming under
such person or spouse, or parent, or child, be void, unless there are three other competent
witnesses to such will. However, such person so attesting shall be admitted as a witness as if
such devise or legacy had not been made or given. (n)
Please note that this article does not disqualify a devisee or legatee, or the spouse, parent or
child of such devisee or legatee, from becoming a witness to the will. If he is qualified and not
disqualified under articles 820 and 821 he is a competent witness; but the devise or legacy in
his favor, or in favor of his spouse, parent or child, will be void. Article 823, therefore, does not
refer to disqualification to be a witness, but to disqualification to inherit.
Note also, that if there are more than three witnesses, the disqualification to inherit under Art.
823 do not apply.
QUESTION:
What if there are only three witnesses and a witnesses, or his spouse or parent or child, who
is a compulsory heir received a legatee or devise under the will, is the said witness, his spouse,
or parent or child disqualified from inheriting from the testator up to the extent of prejudicing
their legitime?
NO, the disqualification to inherit should not prejudice their legitime. The disqualification to
inherit under Art. 823 apply only to the free portion or to voluntary heirs. Otherwise, Art. 823
could be easily employed as an easy way to disinherit a compulsory without any justifiable
cause. This conclusion was drawn by implication under Articles 915, 919, 920 and 921 of the
Civil Code. Thus:
Art. 915. A compulsory heir may, in consequences of disinheritance, be deprived of his
legitime, for causes expressly stated by law. (848a)
Whereas, Article 919 provides:
Art. 919. The following shall be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:
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;
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;

When a child or descendant has been convicted of adultery or concubinage with the spouse of
the testator;
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;
A refusal without justifiable cause to support the parent or ascendant who disinherit such child
or descendant;
Maltreatment of the testator by word or deed, by the child or descendant;
When a child or descendant leads a dishonorable or disgraceful life;
Conviction of a crime which caries with it the penalty of civil interdiction.
QUOTE ARTICLE 920 and 921.

Art. 824. A mere charge on the estate of the testator for the payment of debts due at the time
of the testators death does not prevent his creditors from being competent witnesses to his will.
(n)
P
The word CHARGE used in article 824 means debt of the estate or of the testator. This article
mere says that even a creditor of the testator or of his estate could be a witness to the will of the
testator.

Subsection 5
CODICILS AND INCORPORATION BY REFERENCE

Art. 825. A codicil is a supplement or addition to a will, made after the execution of a will and
annexed to be taken as a part thereof, by which any disposition made in the original will is
explained, added to, or altered. (n)
A codicil is a supplement or an addition to a will; it may explain, modify, add to, or subtract
from, qualify, explain, alter, restrain or revoke provisions in an existing will. Since it refers to a
will, it cannot be made before the execution of the will but always subsequent thereto.
In case of conflict between a will and a codicil, it is understood that the latter should prevail, it
being the later expression of the testators will (57 Am. Jur. Wills, Sec. 608).
Art. 826. In order that a codicil may be effective, it shall be executed as in the case of a will.
NOTA BENE:
Codicil must conform with the formalities of either:

Notarial or ordinary codicils;

Holographic codicils.
Thus, if a codicil is not executed with the formalities of a will, said codicil is void and it can never
revoke a valid will, expressly or impliedly.
Art. 827. If a will, executed as required by this Code, incorporates into itself by reference any
document or paper, such document or paper shall not be considered a part of the will unless the
following requisites are present:
The document or paper referred to in the will must be in existence at the time of the execution
thereof;
The will must clearly describe and identify the same, stating among other things the number of
pages thereof;

It must be identified by clear and satisfactory proof as the document or paper referred to therein;
and
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. (n)
INCORPORATION BY REFERENCE;
If a will duly executed and witnessed according to the requirements of the Civil Code,
incorporates in itself by reference any document or paper not so executed and witnessed,
whether such paper referred to be in the form of a will or codicil, or of a deed or indenture, or of
a mere list or memorandum, the paper so referred to, if it was in existence at the time of the
execution of the will and is identified by a clear and satisfactory proof as the paper referred to
therein, will take effect as part of the will and be admitted to probate as such.
NOTA BENE: The document or paper incorporated in the will itself by reference need not
contain an attestation clause. The attestation clause in the will itself is sufficient provided that all
the requisites provided for in Article 827 are present.
There are instances that a testator makes testamentary dispositions of some properties
enumerated in a book of account or inventories, with sufficient description of the properties
enumerated therein and it may so happen that these books of accounts or inventories are so
long or voluminous making it very burdensome or not practicable for the testator to copy the
entire contents thereof in his will. Also even if the said books or inventories may not be so long
or voluminous, instead of copying verbatim the contents of the said book of account or
document, the testator is allowed to considered them as part of his will by complying with the
requirements of Article 827.

PLEASE ALWAYS BEAR IN MIND THAT THE:

The document or paper referred to in the will must be inexistence at the time of the execution of
the will. It is not enough that in truth it was already in existence, the will must refer to the paper
or document as having been already made;
The will must clearly describe and identify the same, stating among other things the number of
pages thereof even if the paper or document consists of voluminous books of account or
inventories;
It must be identified by clear and satisfactory proof as the document or paper referred to therein.
Note that parol evidence or evidence aliunde is needed to probe this.
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.
Subsection 6
REVOCATION OF WILLS AND
TESTAMENTARY DISPOSITIONS

Art. 828. A will may be revoked by the testator at any time before his death. Any waiver or
restriction of this right is void. (737a)
NOTA BENE:
As long as the testator is still alive, he at any time may revoke his will. The heirs instituted in a
will, either in their capacity as compulsory heir or voluntary heir, have no vested right thereon till
after the testators death. However, provisions in a will which are ordered to be effected
immediately, even during the testators lifetime, are all right, provided the proper formalities and
requisites are present, because they are not really testamentary dispositions.
QUESTION:
Mr. Santos executed a notarial will in 1965 designating his only brother as his only heir. He
died without any issue on January 1st 1998. On December 1, 1999 his will was admitted to
probate. Final distribution of his estate worth 6 Million was made to his brother. On December
1st 2002, Mariah, the only sister of the said decedent found a document dated December 25,
1997 entirely written by the latter explicitly stating that he is revoking for good his 1965 will.
Soon after the discovery of the said document, Mariah filed a petition in court for the probate
thereof.

NOTA BENE: LIMIT YOUR ANSWER TO THE FACTS GIVEN IN THE PROBLEM. MAKE NO
OTHER ASSUMPTION.
Assuming that you are the RTC judge in whose court the petition for probate of the document
dated December 25, 1997 was raffled, will you admit the same to probate? Why?
Art. 829. A revocation done outside the Philippines, by a person who does not have his domicile
in this country, is valid when it is done according to the law of the place where the will was
made, or according to the law of the place in which the testator had his domicile at the time; and
if the revocation takes place in this country, when it is in accordance with the provisions of this
Code. (n)
NOTA BENE:
CONFLICT RULES FOR REVOCATION OF WILLS:
If revocation is done OUTSIDE the Philippines:
If testator has his domicile outside the Philippines:
Follow the law of the country where will was made; or
Follow law of the country of domicile of testator at the time of revocation.
If testator has his domicile in the Philippines:
Follow Philippine Law because he has his domicile here at the time of revocation; or
Follow the general rule on lex loci celebracionis of revocation by applying Art. 17.
If revocation was done in the Philippines, follow Philippine law, the Civil Code. Irrespective of
the domicile of the testator.

Art. 830. No will shall be revoked except in the following cases:

By implication of law; or
By some will, codicil or other writing executed as provided in case of wills; or
By burning, tearing, canceling, or obliterating the will with the intention of revoking it, by the
testator himself, or by some other person in his presence, and by his express direction. If
burned, torn, cancelled, or obliterated by some other person, without the express direction of the
testator, the will may still be established, and the estate distributed in accordance therewith, if its
contents, and due execution, and the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of Court. (n)

REVOCATION BY IMPLICATION OF LAW:

A revocation of a will by implication of law is that kind of revocation produced by operation of
law when certain acts of the testator or occurrence of events after the execution of the will,
rendering void or useless either the whole will or certain testamentary dispositions therein.
Please bear in mind that revocation of a legacy or a devise does not operate to revoke the
entire will. Only total and absolute revocation of the entire will shall prevent the probate of the
revoked will.
Revocation of a will by operation of law is allowed because there may be certain changes in
the family or domestic relations or in the status of the property of the testator, such as the law
presumes a change of mind by the latter.
SOME INSTANCES OF REVOCATION OF A WILL OR TESATAMENTARY DISPOSITIONS
THEREIN BY OPERATION OF LAW:
In case of sale of the legacy or devise by the testator after he executed his will;
Provisions in a will in favor of a spouse who has given cause for legal separation shall be
revoked by operation of law the moment a decree of legal separation is granted;
When an heir, legatee, or devisee commits an act of unworthiness under Art. 1032;
When a credit that had been given as a legacy is judicially demanded by the testator (Art. 936);
When one, some or all of the compulsory heirs have been preterited or omitted, the institution of
heir is void (Art. 854).

REVOCATION BY AN OVERT ACT OF THE TESTATOR:

Requisites of Revocation by Overt Act of Testator:
There must be an overt act specified by the law;
There must be a completion at least of the subjective phase of the overt act. Be sure to
understand the doctrine enunciated in Perkes v. Perkes, Costigan, p. 231.
There must be animus revocandi or intent to revoke;
The testator at the time of revocation must have capacity to make a will;
The revocation must be done by the testator himself, or by some other person in his presence

and by his express direction. (NOTA BENE: Ratification of an unauthorized destruction is

however permissible provided sufficient proof of this is presented).
NOTA BENE: In connection with revocation by overt act of the testator, an heir or a legatee or
devisee who prevented the revocation of the will shall NOT inherit, not because of revocation by
means of overt act (for indeed there was no overt act) but because of revocation by implication
of law, said person being incapacitated to inherit by reason of UNWORTHINESS (See Art.
1032).

THE OVERT ACT OF BURNING:

Nota Bene:
The overt act of burning is deemed completed even if only a small part of the will itself is burned
even though the entire will itself be left untouched (57 Am. Jur., Wills, Sec. 501).
If thrown into the fire with intent to revoke, and it was burned in three places without scorching
the writing, there is already a revocation even if, unknown to the testator somebody was able to
snatch it from the fire and thus save it.

THE OVERT ACT OF TEARING:

Nota Bene:
Even a slight tear is sufficient to revoke the will as long as the animus revocandi is manifest and
the subjective phase of the act of tearing is passed, that is as long as the testator considers the
will already revoked.
PERKES VS. SPERKES
3 B and Ald. 489, Costigan, p. 312
FACTS In a fit of anger, a testator tore his will twice and was continuing to so tear it when
somebody held his arms and persuaded him to refrain from tearing the will. He was prevailed
upon. He then placed the torn pieces in his pocket and said, nothing significant has after all
been torn. Later, the testator died, and the torn will was found. Was there a revocation of the will
by the testator?
HELD: The will was NOT revoked for the act of tearing was subjectively not yet complete,
inasmuch as he had intended to tear up the will some more.
The tearing off of the signature in a will alone constitutes revocation provided the other
requisites are present. This is because the signature goes to the very heart of the will.

right even if the will is revoked. The recognition does not lose its legal effect even if the will is
revoked, because the recognition is not a testamentary disposition; it takes effect upon the
execution of the will and not upon the death of the testator.

Subsection 7
REPUBLICATION AND REVIVAL OF WILLS

Art. 835. The testator cannot republish, without reproducing in a subsequent will, the
dispositions contained in a previous one, which is void as to its form. (n)
Please note that the testator cannot republish without reproducing the dispositions contained
in a will void as to its form, even if the republication is made with all the formalities required for
the validity of wills.
Please also note that if the 1st will is void because of some other causes other than fatal defect
as to form, even if the second will does not reproduced the dispositions in the 1st will, Article
835 will not apply. In this connection, this question may be raised:
Can a will invalid because of fraud or force or undue influence or because the testator is under
18 or insane, be republished by mere reference in a codicil?
Answer: It is submitted that the answer is yes, because this is not a case when the will is void as
to its FORM. The term form as used in Article 835, it is believed, refers to such things as those
covered in Art. 805, like defect in the number of witnesses, lack of or fatal defect in the
attestation clause, lack of acknowledgment, etc. but not to vitiated consent or lack of
testamentary capacity.

Art. 836. The execution of a codicil referring to a previous will has the effect of republishing
the will as modified by the codicil. (n)
NOTA BENE:
If we will examine closely articles 835 and 836 it will occur to us that these articles are
inconsistent with each other. Why it is that Article 835 is inconsistent with Article 836? It is
because Article 835 tells us that republication is not possible unless the 2nd will reproduces the
dispositions in the 1st will that is void. Whereas, Article 836 tells us that mere execution of a
codicil referring to a previous will has the effect of republishing the will as modified by the
codicil. Article 836 does not tell us that the codicil should also reproduce the dispositions in the
previous will.

Article 835 and 836 must be reconciled with each other. Thus, Article 836 must be considered
as the general rule, and article 835 must be regarded as an exception. In other words,
reproduction in the codicil or in a subsequent will is required only when the original will is void as
to its form; in all other cases, reference to the original will suffices to republish it through the
codicil or by a subsequent will. Thus, a codicil or a subsequent will may republish and validate a
will which was originally void for want of testamentary capacity or on account of undue influence
upon the testator.

Art. 837. If after making a will, the testator makes a second will expressly revoking the first,
the revocation of the second will does not revive the first will, which can be revived only by
another will or codicil. (739a)
This article covers a case where the second will expressly revokes the first will; the first will is
not revived by the revocation of the second will, unless such revival is provided in another will or
codicil. This rule is based on the theory that the revoking clause in the second will is not
testamentary in character, but operates to revoke the prior will instanter upon the execution of
the will containing it; hence, the revocation of the second will does not revive the first will, which
has already become a nullity.
According to Tolentino, the validity of the principle upon which article 837 is based is open to
serious question. The operation instanter of the revocatory clause is not judicially sound. The
revocatory clause is always part of the will, so much so that if the will in which it is contained is
improperly executed and cannot be probated, such revocatory clause is void and does not take
effect. I agree with Tolentino and I add that the revocatory clause is a testamentary disposition.
Because provision in a will that give away any of the property of the testator or deny the same
from anybody is a testamentary disposition. Thus for the validity of the revocatory clause, the
same must be contained in a valid will. Thus, once the revocatory clause is rendered null and
void and without effect because it is provided in a void will, it follows that it does not operate to
revoke the prior will because in truth and in fact, the revocatory clause is a testamentary
disposition.
NOTA BENE:
Article 837 speaks of express revocation. But how about an implied revocation. Is there such
a thing as implied revocation of a will or testamentary disposition?
Where there is merely inconsistency between two wills, but no revoking clause, it has been held
in common law that upon the destruction of the second will the first will was revived
automatically, regardless of the intention of the testator, provided the first will has been
preserved undestroyed and uncancelled. This rule is based on the ground that, while the
inconsistent provision of the second will clearly manifest an intention on the part of the testator
to revoke the prior will, yet this intent, purely testamentary in character, can have no effect until

the death of the testator, and, if the instrument containing the inconsistent provision is destroyed
by the testator before that time, the revocatory intent, for legal purposes, shall be deemed to
have never been contemplated at all by the testator, and the first will being uncancelled, takes
effect. Tolentino believes that the rule on implied revocation is application in this jurisdiction,
because
article 837 limits itself to cases where the second will expressly revokes the first will; hence, it
does not cover cases of implied revocation. I subscribed to the view of Tolentino.

Subsection 8
ALLOWANCE AND DISALLOWANCE OF WILLS

Probate or Allowance of a Will. Before a will can have force or validity it must be probated. To
probate a will means to prove before some officer or tribunal, vested by law with authority for
that purpose, that the instrument offered to be proved is the last will and testament of the
deceased person whose testamentary act it is alleged to be, and that it has been executed,
attested and published as required by law, and that the testator was of sound and disposing
mind. It is a civil proceeding to establish the validity of the will.
Distinction between Revocation and disallowance of a will:
Although revocation and disallowance of a will have the same ultimate effect the will
becomes inoperative, they differ in the following respect:
!. Revocation is a voluntary act of the testator himself, whereas, disallowance is by judicial
decree;
Revocation may be made even without a cause; whereas, disallowance may be decreed only
for causes provided by law;
Revocation may be partial, whereas, disallowance is always total.

Art. 838. No will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having jurisdiction for the
allowance of his will. In such case, the pertinent provisions of the Rules of Court for the
allowance of wills after the testators death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be necessary for the
allowance of wills on petition of the testator.

Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator
or after his death, shall be conclusive as to its execution. (n)

NOTA BENE: Jurisdiction of courts in connection for probate cases, whether testate or
intestate:
Under Section 5, in relation to Sec. 19, paragraph 4 of Batas Pambansa Blg. 129, as
amended by R.A. 7691, today, the jurisdiction in testate and intestate proceedings is as follows:
If the case is to be filed outside Metro Manila:
If the value of the estate is P200,000.00 or below MTC;
If the value of the estate is more than P200,000.00 RTC
If the case is to be filed within Metro Manila
If value of estate is P400,000.00 or below MTC;
If value of estate is more than P400,000.00 RTC.
The jurisdictional amounts as aforementioned shall increase accordingly, after ten years from
the date of effectivity of B.P. 129. Originally the jurisdictional amount was much lesser than the
aforesaid amounts but five years from the effectivity of B.P. 129 the said jurisdictional amount
was increased as above-listed.
PROBATE (Defined):
Probate is the act of proving before a competent court the due execution of a will by a person
possessed of testamentary capacity, as well as approval thereof by said court.
Note that: Probate is one thing; the validity of the testamentary provisions is another. The first
decides the execution of the document and the testamentary capacity of the testator; the
second deals with descent and distribution.
Note also, that there are two kinds of probate mentioned in article 838. Namely, probate
during the testators life and probate after his death.
If the will of the testator was probated during his lifetime, it will not prevent him from altering his
will by executing another will. The subsequent will of course has still to be probated, either
during or after the lifetime of the testator.
Even if only one heir was instituted in the will to receive the entire estate of the testator, the
will should still be probated and there must be an order of adjudication to be issued by the

probate court.
What may the court do in a probate proceeding?
1. Orders the probate proper of the will;
2. Grants letters testamentary or letter with a will annexed;
3. Hears and approves claims against the estate
4. Orders the payment of lawful debts of the estate;
5. Authorizes the sale, mortgage, or any other encumbrance of real estate;
6. And directs the delivery of the estate or properties to those who are entitled thereto.
QUESTION: X executed a holographic will in 1990 in his entire handwriting and duly signed
by him at the end thereof. However, he failed to place a date on his will. In the said will X
provided as follows:
I hereby bequeath 10 Million Pesos to my best friend Mr. Santiago Guevarra. The remainder
of my estate shall necessarily pass to my only remaining relative, my nephew Mr. Armando
Masiba.
X died on January 1, 1995 without any issue. His only nephew, Mr. Masiba, survived him. Mr.
Masiba instead of presenting the will of his uncle to probate kept it. He however, gave Mr.
Santiago Guevara 5 Million Pesos telling the latter that before the death of his uncle the latter
told him to give the former the said amount after his death.
On January 1, 2003, Mr. Masiba learned that the holographic will of his uncle was void
because it was not dated. He made an extrajudicial demand from Mr. Santiago Guevarra for the
return of the 5 million pesos he gave to him. Mr. Guevarra refused because he said he already
spent the said amount. Mr. Masiba filed a case for a sum of money against Mr. Guevarra. You
are the RTC judge in whose court the case was raffled. How will you decide the case?
(PLEASE READ THE PROCEDURE IN ANTE MORTEM AND POST MORTEM PROBATE OF
A WILL. ALTHOUGH THIS IS MORE FOR PRACTIONERS, HOWEVER, ALTHOUGH IT IS A
LONG SHOT THAT THIS MATTER MAY BE COVERED IN THE BAR EXAMINATION, THERE
IS NO SUBSTITUTE FOR BEING PREPARED)
ALWAYS BEAR IN MIND THAT ANTE MORTEM PROBATE IS ALLOWED BY THE LAW TO
PREVENT OR MINIMIZE FRAUD, INTIMIDATION, AND UNDUE INFLUENCE; ALSO TO
ENABLE THE TESTATOR TO CORRECT AT ONCE FAILURE TO OBSERVE LEGAL
REQUIREMENTS.
NOTE ALSO THAT IF A WILL HAS ALREADY BEEN PROBATED, IF LATER ON A
SUBSEQUEWNT WILL IS DISCOVERED, THE LATTER MAY STILL BE PRESENTED FOR A
PROBATE.

EFFECT OF PROBATE OF A WILL (PROOF OF EXTRINSIC VALIDITY):

As long as there has been final judgment by a court of competent jurisdiction, the probate
proper (or allowance) of the will is binding upon the whole world insofar as testamentary
capacity of the testator and due execution of the will are concerned. The order of the court
allowing probate of the will is not an interlocutory order and is therefore immediately appealable
(Dionisio Fernandez, et al. v. Ismaela Dimagiba, L-23638, Oct. 12, 1967). An order determining
the distributive share of the estate to which a person is entitled is of course appealable, before
final judgment (Claro Santillon v. Perfecta Miranda, et al., L-19281, June 30, 1965). In no case
is the judgment conclusive on matters such as ownership of property (Castaneda v. Alemany, 3
Phil. 427; Macam v. Gatmaitan, 60 Phil. 3850. However, persons who are neither compulsory
heirs, voluntary heirs, legatees, nor devisees cannot question anymore the validity of the order
of distribution that
has long become final (Rufino Coloma, et al., v. Atanacio Coloma, L-19399, July 31, 1965).
NOTA BENE: The proceeding for distribution of the property is not in rem, and cannot affect
those who were not personally served with summons.
DISTRIBUTION is defined as the division, by order of the court having authority, amount
those entitled thereto, of the estate of a person, after the payment of debts and charges.

Art. 839. The will shall be disallowed in any of the following cases:
if the formalities required by law have not been complied with;
If the testator was insane, or otherwise mentally incapable of making a will, at the time of its
execution;
If it was executed through force or under duress, or the influence or fear, or threats;
If it was procured by undue and improper pressure and influence, on the part of the beneficiary
or of some other person;
If the signature of the testator was procured by fraud;
If the testator acted by mistake or did not intend that the instrument he signed should be his will
at the time of affixing his signature thereto. (n)

NOTA BENE: The ground given in article 839 for the disallowance of a will is exclusive; thus, no
other ground can serve to disallow it (Pecson v. Coronel, 45 Phil. 216).

QUESTION: How about if the testator was only 17 years old at the time he executed his will?
Will it be a ground for disallowance of the will?
(Please take note that: Art. 797 provides: Persons of either sex under eighteen years of age
cannot make a will.
Disallowance of wills. While public policy favors the probate of a will it does not follow that
every will presented for probate be allowed. The law enumerates the different grounds for
disallowing wills. No other ground than those provided may serve as a reason for denying
probate of the will
The ground of FORCE, DURESS, FEAR OR THREAT:
These grounds connote the idea of coercion, either mental or physical. While their presence
in a contract renders it voidable, their presence in a will renders the will void.
Why is it in contract force duress fear or threat renders the contract merely voidable but not in
a will? (mental calisthenics)
The ground of Undue and Improper pressure and influence:
Undue influence connotes the idea of coercion by virtue of which the judgment of the testator
is displaced, and he is induced to do that which he otherwise would not have done. The wish of
the testator must be subdued and displaced by some influence which he has not the power to
resist though it has not convinced his judgment nor changed his desire. The coercion may
consist of actual violence or threats express or implied, or of harassing importunity. (For a
through discussion on this subject matter, see Tolentino p. 162-164)
However, note that: There is no undue influence just because a testator had made his
mistress, or his illegitimate child by her, the heir to the entire free portion. Mere affection, even if
illegitimate, is not undue influence, as long as the giving is voluntary (Coso v. Fernandez Deza,
42 Phil. 596).
The Ground of Fraud:
Fraud is the use of insidious machinations to convince a person to do what ordinarily he
would not have done. For fraud to vitiate a will there must be intent to defraud. This intent, and
the nature of fraud must be proved. (Pecson v. Coronel, 45 Phil. 216).
The ground of Mistake or Lack of Testamentary Intent in so far as the Document is
concerned:
Example: A man signed a document not believing it to be a will. This mistake is a ground for
disallowance.

Section 2
INSTITUTION OF HEIR

Art. 840. Institution of heir is an act by virtue of which a testator designates in his will the person
or persons who are to succeed him in his property and transmissible rights and obligations. (n)
NOTA BENE:
Article 840 defines institution of an heir.
Institution of heir is a voluntary act on the part of the testator and it cannot be allowed to
affect or prejudice the legitimes of compulsory heirs.
In general, the provisions on institution of heir are applicable only to devises and legacies.
There can be instituted heir only in testamentary succession because the heir in intestate
succession is called legal or intestate heir.
A conceived child may be instituted, if the conditions in Arts. 40 and 41 of the Family Code
are present because Art. 1025 provides that In order to be capacitated to inherit, the heir,
devisee or legatee must be living at the moment the succession opens, except in case of
representation, when it is proper. A child already conceived at the time of the death of the
decedent is capable of succeeding provided it be born later under the conditions prescribed in
Article 41.
On this matter, let me call your attention on the provision of Articles 40 and 41 of the Civil
which provide, thus:
Art. 40. Birth determines personality; but the conceived child shall be considered born for
all purposes that are favorable to it, provided, it be born later with the conditions specified in the
following article.
Art. 41. For civil purposes, the fetus is considered born if it is alive at the time it is
completely delivered from the mothers womb. However, if the fetus had an intra-uterine life of
less than seven months, it is not deemed born if it dies within twenty-four hours after its
complete delivery from the maternal womb.

REQUISITES FOR A VALID INSTITUTION OF HEIR:

1. The will must be EXTRINSICALLY VALID, hence, the testator must be capacitated, the
formalities must be observed, there must be no vitiated consent, the will must have been duly
probated, the will must have been the personal act of the testator;
2. The institution must be valid INTRINSICALLY. Hence, the legitime of compulsory heirs must
not be impaired, the heir must be certain or ascertainable and there should be no preterition of a
compulsory heir; and,
3. The institution must be EFFECTIVE, that is there must be no predecease, no repudiation by
the heir and/or no incapacity of heir.

Art. 841. A will shall be valid even though it should not contain an institution of an heir, or such
institution should not comprise the entire estate, and even though the person so instituted
should not accept the inheritance or should be incapacitated to succeed.
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. (764)

NOTA BENE: Article 841 tells us that if a will is not defective, shall remain valid, even if: There is
no institution of heir, or the instituted heir is given only a portion of the estate, or the heir
instituted should repudiate or be incapacitated to inherit.
Please note that a will is valid and effective even if the only provision therein is for the
appointment of an executor, or the disinheritance of a compulsory heir.

Art. 842. One who has no compulsory heir may dispose by will of all his estate or any part of it
in favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not contravene
the provisions of this Code with regard to the legitime of the said heirs. (763a)
Article 842 states the principle of freedom of disposition by will. However, the extent of this
freedom depends upon the existence, kind, and number of compulsory heirs. One who has no
compulsory heir has practically full power of disposition; but one with compulsory heir cannot
disregard the rights of the latter to their legitime because legitime is that portion of the estate of
a deceased person reserved upon them by law.
COMPULSORY HEIRS ARE THOSE WHO SUCCEED BY FORCE OF LAW TO A CERTAIN

PORTION OF THE ESTATE OF THE DECEDENT, IRRESPECTIVE OF THE WILL OF

TESTATOR, EXCEPT IN THOSE CASES EXPRESSLY PROVIDED BY LAW. The portion to
which they succeed is known as the legitime; the remainder of the estate is called free portion,
and may be freely disposed of by the testator as he may desire to any person with capacity to
succeed.
EFFECT OF SPECIAL LAW ON FREEDOM OF DISPOSITION BY WILL:
The rule on Freedom of Disposition by Will set forth in Article 842 of the Civil Code, must
necessarily be modified in cases, which are governed by special laws.
Example of special law that takes precedence on Article 842:
Sec. 105 of Commonwealth Act. No. 141, otherwise known as the Public Land Act, expressly
provides: If at any time the applicant or grantee of homestead, sale or lease of public
agricultural land shall die before the issuance of the patent or final grant of the land, or during
the lifetime of the lease, or while the applicant or grantee still has obligation pending towards the
Government, in accordance with this Act, he shall be succeeded in his rights and obligations
with respect to the land applied for or granted or leased under this Act by his heirs in law, who
shall be entitled to have issued to them the patent or final concession if they show that they
have complied with the requirements therefore, and who shall be subrogated in all his rights and
obligations for the purpose of this Act. Note that the provision in the Public Land Act that the
rights and obligations to the land shall pass to the heir in law clearly indicate that the applicant
or
grantee does not have any right to dispose of the property by will in favor of any other person.

FREEDOM OF DISPOSITION BY WILL WITH RESPECT TO THE CORPSE OF THE

TESTATOR:
The rule is well established that the body of the deceased testator will not pass under his will
or become part of his estate, because the corpse is not property. To a certain extent, however, a
person is allowed to dispose of his body or any part thereof, for scientific or educational
purposes.

Art. 843. The testator shall designate the heir by his name and surname, and when there are
two persons having the same names, he shall indicate some circumstances by which the
instituted heir may be known.
Even though the testator may have omitted the name of the heir, should he designate him in
such manner that there can be no doubt as to who has been instituted, the institution shall be

valid. (772)

Art. 844. An error in the name, surname, or circumstances of the heir shall not vitiate the
institution when it is possible, in any other manner, to know with certainty the person instituted.
If among persons having the same names and surnames, there is similarity of circumstances
in such way that, even with the use of other proof, the person instituted cannot be identified;
none of them shall be an heir. (773a)
NOTA BENE:
The provisions of Article 843 and 844 of the Civil Code follow the principle that if the
institution leaves no doubt as to who is designated, the will of the testator must be complied
with; and vice versa, if the doubt as to who is instituted cannot be resolved, then it is the same
as if the testator has not expressed his will.
Examples of allowable institutions:
To my dog trainer macky; To my brother (in case there is only one brother); to my brothers (in
case of two or more brothers; To the children of my classmate in Grade I, Armando Sulit.
Effect of doubt on the institution of heir:
In the following and similar cases, no one inherits because there is doubt as to who is being
instituted:
To my classmate in Grade I, Jose. If there be two Joses;
To my son-in-law if there be two sons-in-law.
HOW ABOUT IF THE TWO JOSES OR SONS-IN LAW ENTERED IN AN AMICABLE
SETTLEMENT IN THE PROBATE PROCEEDING AND ALLOWANCE OF WILL THAT THEY
SHALL DIVIDE EQUALLY THE LEGACY OR DEVISE BEQUETH BY THE TESTATOR, IS THE
AMICABLE SETTLEMENT REACHED BY THEM VALID?
Error and ambiguity: An error in the name or circumstances of the heir will not vitiate the
institution, if the person intended by the testator can be ascertained in any other manner. The
phrase in any other manner is broad enough to cover all kinds of evidence. Hence, evidence
outside of the will and even if not directly related to it may be presented to show the error and
prove with certainty the intention of the testator.
If the testator institutes my nephew Jose Reyes, and he happens to have two nephews with
the same name, the institution is void, and neither of them inherits under the will, unless it can

be determined from the will itself that one is intended by the testator. Extrinsic evidence that the
testator had more affection for one than the other is inadmissible.
But if the testator merely says he institutes Jose Reyes, without mentioning any
circumstances regarding him, the mere appearance of two persons bearing the same name
does not by itself vitiate the institution. If it can be proven that one Jose Reyes is a close friend
of the testator, while the other is not, then the former must be taken as the one instituted. If both
are close friends or the testator, or both are strangers to him, neither one succeeds.
The reason for vitiating the institution of the latter case above, instead of dividing the
inheritance equally among all those who may have the circumstance mentioned by the testators
will, is that the testator meant that only one shall get the entire property bequeath. To divide the
property will be to reduce the amount given by the testator to the heir he intended, and at the
same time give property to one whom the testator did not intend to benefit.

Art. 845. Every disposition in favor of an unknown person shall be void, unless by some event or
circumstance his identity becomes certain. However, a disposition in favor of a definite class or
group of persons shall be valid. (750a)

NOTA BENE:
The person instituted must be certain; that is, his identity must be known. The heir is
considered known not only when he is individually determined or specified, but also when the
necessary elements for the determination of his identity are given in the will. It is the absolute
uncertainty of the identity of the heir that nullifies the disposition.
The disposition of the testator in favor of an unknown person is void, because it cannot be
determined from the will who is intended to be favored, and the will of the testator cannot
therefore be given effect.
In testamentary disposition there is an UNKNOWN PERSON whenever the person indicated
by the testator is not determined, that is, he is not individualized, thus making it impossible to
know who is meant by the decedent.
An institution stating,
I bequeath all my properties:
To an inventor;
to a group of soldiers;
to a professor;
to a group of students; or

to a student,
would be a disposition in favor of an unknown person. But when the disposition is altered to
read,
I bequeath all my properties:
to the inventor of the electric fountain pen,
to the soldiers of Tabak Division of the Philippine Army;
to the oldest professor of the Mindanao State University;
to the 3rd year students of the College of Law of MSU, GSC Campus; or
to the brightest student in my class in wills and succession,
the beneficiary becomes determined or individualized, and the will of the testator can and
should be carried into effect. Of course, this conclusion is based on the assumption that such
person actually exists, and has the capacity to succeed. If, for example, no electric pen has
been invented, then the disposition cannot be given effect, not because the institution refers to
an unknown person, but because no such person (the inventor) actually exists. THE
UNCERTAINTY CONTEMPLATED BY LAW, THEREFORE, HAS REFERENCE, NOT TO THE
EXISTENCE, BUT TO THE IDENTITY OF THE PERSON INSTITUTED. Thus, if the person is
not determined, the legal effect in succession mortis causa is the same as if he did not exist.
Please note that an unknown person instituted as heir, however, should not be confused with
one that is unknown to the testator, or with whom the testator has no acquaintance. As long as
the identity of the heir is determined, even if the testator does not know him, the institution will
be valid.
VALIDITY OF AN INSTITUTION OF HEIR WHOSE IDENTITY IS DETERMINED BY THE
OCCURRENCE OF AN EVENT OR CIRCUMSTANCE:
The determinate event or circumstance, sufficient to indicate with certainty the person whom
the testator wants to favor, must appear in the will itself; it cannot be shown by extrinsic
evidence, either oral or documentary.
On this subject matter, the Supreme Court of Cuba held that the identifying event or
circumstance must necessarily take effect before the death of the testator. Tolentino believes
otherwise. According to him, it is difficult to subscribed to the said view. His view is that the
identity of the person may be determined, not only by past or future ones. All that is necessary is
that the event or circumstance appear in the will itself, and the person must exists and have
capacity to succeed at the time of the death of the testator. The event determining his identity
may take place later, in the same manner as a condition or a period. Thus, the testator may
validly provide: I hereby bequeath 10 Million Pesos to the person who gets the highest average
in the bar examination to be given in the year following my death."

THERE ARE OTHER PROVISIONS OF LAW, ASIDE FROM ARTICLE 845 THAT PROVIDE
FOR A VOID OR INEFFECTIVE INSTITUTION:
Please note that although Article 845 of the Civil Code has for it subject matter void or
ineffective institution of heir, however, there are other articles in the Civil Code also covering
void or ineffective institution of heirs. Where the determination of the heir is delegated by the
testator to another, the disposition is void under the provisions of Article
785. Thus, the testator cannot validly provide: I hereby institute as my heir the person whom my
brother Juan may designate.
Another institution that would not be effective is one where the instituted heir does not have
capacity to succeed at the time of the death of the testator. Thus, if the testator provides: I
institute as my heir the first child of my brother Juan, and the said child is conceived and born
after the death of the testator, the heir although determined, cannot succeed for lack of capacity
at the time of the death of the testator. Article 1025 requires that, in order to be capacitated to
inherit the heir, devisee or legatee must be living at the moment the succession opens.
INTITUTION OF CLASS:
Please note that the law allows testamentary disposition in favor of a definite class or group
of persons. All the individuals belonging to the class or group, if existing and having capacity to
succeed at the time of the death of the testator, are considered as called to succession. Thus,
the testator may provide: I hereby institute as my heir to receive 10 Million pesos the bar
candidates of the College of Law of the Mindanao State University, General Santos Campus, in
the bar to be given ten years after my death. In connection with the institution of a class, please
take note of the provisions of Article 786. When the testator institutes a definite class or group of
persons, he may entrust to a third person the distribution of the property or money he leaves to
such class or group, and also the designation of the persons within the class or group to whom
the property or money shall be given.

Art. 846. Heirs instituted without designation of shares shall inherit in equal parts. (765)
Nota Bene: This article is a reiteration of the principle that the express or presumed will of
the testator is the law that should govern succession. It is only logical to presume that if the
testator intended that his heirs should inherit in unequal proportions, he should have stated it in
his will. Hence, in the absence of express designation of shares it should be presumed that he
wanted them to inherit in equal parts.
INSTITUTION WITHOUT DESIGNATION OF SHARES:
Example: T institutes his friends A and B as his heirs. T has no compulsory heirs. How much
will A and B inherit?

Answer: A and B inherit equally, that is 50-50. Reason for the law: The law merely expresses
what it presumes to have been the testators intention, for had he desired otherwise, he should
have been more specific.
NOTA BENE: When the term ISSUES or DESCENDANTS, appeared in a will and it is
unexplained by anything in the context of the instrument, the said term shall mean ALL
PERSONS DESCENDING LINEALLY FROM ANOTHER, TO THE REMOTEST DEGREE, AND
INCLUDES PERSONS SO DESCENDED, EVEN THOUGH THEIR OWN PARENTS ARE STILL
LIVING; AND SUCH DESCENDANTS OR ISSUES TAKE PER CAPITA (PER PERSON) AND
NOT BY STIRPES (BY GROUP) (Wyeth, et al. V. Crane, 174 N.E. 871; Belen v. Bank of the
Philippine Islands, et al., L-14474, Oct. 31, 1960, 109 Phil. 1008)
Please also note that the rule in this article is not absolute. The rule enunciated in Article 846
should be understood as referring to heirs who are of the same class or juridical condition, and
only with respect to the portion of the inheritance of which the testator can freely dispose.
Because as between two heirs, one of whom is a compulsory heir and the other a voluntary heir,
without designation of heirs, it is not legally possible to give them equal shares in the entire
inheritance. The legitime of the compulsory heir must first be separated and allotted to him,
because the testator cannot deprive him of it; the remainder of the free portion is what shall be
divided equally between the two.
RULE IF THE SHARES OF SOME HEIRS ARE DESIGNATED, WHILE THOSE OF THE
OTHERS ARE NOT:
If the shares of some heirs are designated, while those of the others are not, those parts
designated shall be given to their owners, and the balance shall be divided equally among those
whose shares are not designated. But if the shares of those whose portions are designated
should consume the entire estate, those whose shares are not designated will inherit nothing.
RULE WHERE THERE IS NO DESIGNATION OF SHARES BUT THE TESTATOR HAS
PROVIDED THAT SPECIFIC THINGS BE GIVEN TO EACH HEIR AND SUCH THING FORM
ONLY A PORTION OF THE ESTATE:
Example:
T institutes SON and DAUGHTER as his sole heirs. Then in a separate clause in his will, he
states that he desires his house valued at 5 Million to go to SON and his land situated at
Polomolok valued at 10M to go to DAUGHTER. There are other properties in the estate.
SOLUTION: The institution must be considered as without designation of shares, and the
heirs shall divide the estate equally and the value of the specific things assigned to each being
included in the amount that should pertain to each.
DESIGNATION OF ALIQUOT PARTS:

If the testator expressly designates the shares or aliquot part of each heir, his will must be
complied with, in so far as it does not violate the law. If the aliquot parts designated in the will
should exceed the amount of the inheritance, or should be less than such inheritance, the
solution will depend upon the intention of the testator and the circumstances of each case.
Articles 851, 852 and 853 govern such cases.

Art. 847. When the testator institutes some heirs individually and the other collectively as
when he says, I designate as my heirs A and B, and the children of C, those collectively
designated shall be considered as individually instituted, unless it clearly appears that the
intention of the testator was otherwise. (769a)
Please note that in the absence of a clear intention of the testator to the contrary, it is
presumed that heirs collectively instituted shall be considered individually instituted. Note also
that the contrary intention must clearly appear in the will itself, and in case there is doubt on the
existence of such contrary intention, then the rule in Article 847 must be applied. Hence, those
collectively designated shall be considered as individually instituted.
EXAMPLE: T instituted A, B and the six (6) children of C to his estate of 4 Million Pesos.
Upon the death of T how do you divide his estate?
SOLUTION: A, B, and the six (6) children of C shall received 500 Thousand Pesos each.
Reason, although collectively designated, the six (6) children of C shall be considered as
individually instituted because the testator did not provide a contrary intention in his will.
Thus, where a testatrix instituted her husband as her heir, and upon his death the property
shall pass to her sisters and nieces, it was held in the case of Nable Jose vs. Unson, 27 Phil.
73, that upon the death of the husband, the living sisters and the children of deceased sisters
should take per capita and in equal parts.

Art. 848. If the testator should institute his br

thers and sisters, and he has some of full blood and others of half blood, the inheritance shall be
distributed equally, unless a different intention appears. (770a)
Nota Bene: Under the old Civil Code, where the testator institutes his bothers and sisters,
and he has some of the full blood and others of half blood, the rule on intestate succession was
applied; that is, each sister or brother of full blood received twice as much as each brother or
sister of the half blood. This rule in intestacy follows the presumed will of the testator, and it is
assumed that his affection for brothers and sisters of the full blood is necessarily stronger that
that for those of the half blood.
Please note, however, that Article 848 of the Civil Code had discarded the rule in intestate

succession when the testator makes an express institution of his brothers and sisters without
designation of shares. Each of the brothers or sisters, whether of full or half blood, shall share
equally. The rule now enunciated in Article 848 is based on the principle that if the testator
really had stronger affection for brothers and sisters of the full blood than those of the half blood,
he would have made an express designation of shares more favorably to the former. Since he
made his institution without designation of shares, the general presumption the he intends to
favor them equally must prevail. This presumption will yield only to a different intention of the
testator which must appear clearly in the will itself.
Art. 849. When the testator calls to succession a person and his children, they are all deemed
to have been instituted simultaneously and not successively. (771)
QUESTION: The testator provided in his will as follows:
I hereby institute my only son and his children as my only heirs
How do you distribute the estate of the testator upon his death?
ANSWER: Distribute the net estate of the testator equally between his only son and the
children of the latter. Thus, if the net estate is 5 Million and the only son of the testator has 4
children, the estate should be divided equally among them and the son and his children shall
received 1 Million each. (QUESTIONABLE ANSWER)
`Nota Bene: This article, unlike Article 848 does not contain a proviso unless a different
intention appears. This omission, however, does not mean that the rule stated in this article is
absolute and admits of no qualification. Even in the absence of express provision in the law, it
must be understood that the rule state in this article cannot prevail as against a contrary
intention of the testator. The will of the testator is the supreme law in the succession, and must
be observed. That contrary intention, however, must appear in the will itself and cannot be
shown by parol or extrinsic evidence.
The term simultaneously means together at the same time; whereas, the term successively
means one after the other.

Art. 850. The statement of a false cause for the institution of an heir shall be considered as
not written, unless it appears from the will that the testator would not have made the institution if
he had known the falsity of such false cause. (767a)

NOTA BENE: Before the institution of heirs may be annulled by reason of a false cause, the
following requisites must concur:
1. The cause for the institution of heirs must be stated in the will;

2. The cause must be shown to be false;

It must appear from the face of the will that the testator would not have made such intstitution if
he had known the falsity of the cause. (Austria, et al. vs. Hon. Andres Reyes, 31 SCRA 754)
REASON WHY THE CAUSE OF FALSITY OF THE CAUSE OF INSTITUTION MUST APPEAR
ON THE FACE OF THE WILL ITSELF TO RENDER THE INSTITUTION VOID.
The real cause or consideration in the institution of heirs in testamentary succession is the
GENEROSITY of the testator because the testamentary disposition in favor of the instituted heir
is a gratuitous act. Thus if the false cause that moved the testator to make the testamentary
disposition to the instituted heir does not appear on the face of the will, the testamentary
disposition is valid because the real cause or consideration is the generosity of the testator to
the instituted heir. However, if the falsity of the cause that moved the testator to make the
testamentary disposition in favor of the instituted heir appears on the face of the will, it cannot
be said that the real cause or consideration is the generosity of the testator but the false cause
itself. Thus, for such testamentary disposition to be ineffective, the falsity of the cause for the
institution must appear on the face of the will.
Where it appear on the face of the will that the testator would not have made the institution if
he had known of the falsity of the cause he had stated, then the institution is avoided by the
falsity of the cause. Thus, where the testator make the following testamentary disposition, as
follows:
I bequeath to Pedro P100, 000.00 because he saved my sons life but then it turned out that it
was not Pedro who saved the life of his son.
It is clear from the example given above that the consideration or cause that impelled the
testator to institute Pedro is not his generosity but a mistake of fact in believing that it was Pedro
who saved the life of his son. This fact being false, the institution is without real cause, and is
therefore, void.
Please know and understand the case of Austria, et al. v. Hon. Andres Reyes, 31 Phil. 754.
NOTA BENE: The effects of institution based on an illegal or immoral cause shall be
discussed in Art. 873.

Art. 851. If the testator has instituted only one heir, and the institution is limited to an aliquot
part of the inheritance, legal succession takes place with respect to the remainder of the estate.
The same rule applies, if the testator instituted several heirs each being limited to an aliquot
part, and all the parts do not cover the whole inheritance. (n)

This is self-explanatory.
Art. 852. If it was the intention of the testator that the instituted heirs should become sole
heirs of the whole estate, or the whole free portion, as the case may be, and each of them had
been instituted to an aliquot part of the inheritance and their aliquot parts together do not cover
the whole inheritance, or the whole free portion, each part shall be increased proportionally. (n)
Nota Bene: If the aliquot parts of the instituted heir when taken together does not cover the
whole estate or the whole free portion, as the case may be, shall only be increased
proportionately if the intention of the testator that the instituted heirs should become sole heirs
of the whole estate or the free portion appears on the will itself.
Examples:
I hereby institute my friends A, B, and C to be my heirs, A to received of my estate, B and C
1/4 thereof. Here, the entire estate was not covered by the testamentary disposition. However,
no proportional increase may be made on the shares of the instituted heirs because it does not
appear from the face of the will that the testator intended them to be his sole heirs.
But if the testator stated in his will: I hereby institute my friends A, B, and C as my only heirs, A
to received of my estate, B and C 1/4 thereof. Here, the aliquot parts of the hairs shall be
increased proportionately. Thus, if the estate is worth P100, 000.00 Each heir will first get P25,
000.00 each and they will also share on equal proportion on the remaining P25, 000.00. Thus,
in the last analysis, each of them shall get 1/3 of the entire estate instead of only .

Art. 853. If each of the instituted heir has been given an aliquot part of the inheritance, and
the part together exceeds the whole inheritance, or the whole free portion, as the case may be,
each part shall be reduced proportionally. (n)
Illustration of the article:
The testator institutes the following as his heirs entitling each of them to an aliquot part of his
estate worth P120, 000.00, as follows:
A 1/2; B ; C ; and, D 1/8 of the entire estate. There is an excess of 1/8 of the entire
estate which is in the amount of P15, 000.00.
SOLUTION:
1ST determine the amount due to the each heir on the basis of the aliquot part given to them
under the will: thus:

A - of P120, 000.00 is P60, 000.00

B - of P120, 000.00 is P30, 000.00
C - of P120, 000.00 is P30, 000.00
D 1/8 of 120,000.00 is P15, 000.00
The total of the shares of each of the four heirs is P135, 000.00 but the value of the estate is
only P120, 000.00, hence, there is an excess of P15, 000.00. To determine the amount to be
deducted from the above shares of the heirs, we have to determine the percentage of each of
their shares on the total amount of P135, 000.00; thus,
A P60, 000.00 divide by P135, 000.00 = .4444444 X P15, 000.00 = P 6,667.00
B P30, 000.00 divide by P135, 000.00 = .2222222 X P15, 000.00 = P 3,333.00
C P30, 000.00 divide by P135, 000.00 = .2222222 X P15, 000.00 = P 3,333.00
D P15, 000.00 divide by P135, 000.00 = .1111111 X P15, 000.00 = P 1,667.00
Total amount of reduction - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - P15, 000.00

Art. 854. 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.
If the omitted compulsory heir should die before the testator, the institution shall be effectual,
without prejudice to the right of representation. (814a)

CONCEPT OF PRETERITION:

Preterition means the total omission of a compulsory heir from the inheritance. It consists in
the silence of the testator with regards to a compulsory heir, omitting him in the testament, either
by not mentioning him at all, or by not giving him anything in the hereditary property but without
expressly disinheriting him, even if he is mentioned in the will in the latter case. (Neri vs. Akutin,
72 Phil 322; Maninang vs. Court of Appeals, 114 SCRA 478)
There is no preterition where the testator allotted to a descendant a share less than the
legitime, since there was no total omission of a forced heir. (Reyes-Barreto vs. Barreto-Datu, 13
SCRA 85)
Please note that If a compulsory heir is given a share in the inheritance no matter how small,
there is no preterition because in such case, he is entitled to the completion of his legitime as
provided for under Article 906. So also, if a compulsory heir is not given anything in the will, but
he has already received a donation from the testator, there is no preterition because after all a
donation to a compulsory heir is considered an advance of the inheritance or legitime as very
evident following the principle laid down in Article 1073 of the Civil Code.

HOW ABOUT THE SPOUSE LEFT OUT IN THE WILL, IS THERE PRETERITION IN SUCH
CASE?
There can be no preterition of a spouse because the said heir, although a compulsory heir, is
not a compulsory heir in the direct line?
HOW ABOUT AN ADOPTED CHILD LEFT OUT IN THE WILL. IS THERE PRETERITION IN
SUCH CASE?
DEFINITION OF PRETERITION:
Preterition or pretermission is the omission, whether intentional or not, of a compulsory heir in
the inheritance of a person.
REQUISITES FOR PRETERITION:
A. There is TOTAL omission in the inheritance;
B. The omission must be of a compulsory heir in the direct line;
The compulsory heir omitted survives the testator.
Please take note of the phrase used in the law., WHETHER LIVING AT THE TIME OF THE
EXECUTION OF THE WILL OR BORN AFTER THE DEATH OF THE TESTATOR, how about
compulsory heirs in the direct line born between the time of the execution of the will and the
death of the testator, will there be preterition if any of such heir was left out in the will?

Please also note that although there is no preterition in case a compulsory heir in the direct line
predecease the testator, in case such heir was left out in the will, however, the right of
representation, if proper, should not be lost sight of. Thus, if the preterited heir has legitimate
children and descendants entitled to represent him, and they have been left out in the will, the
institution shall be annulled just the same, even if the preterited heir died before the testator.
EFFECT OF PRETERITION:
Preterition totally annuls the institution of heirs, but the devisees and legacies shall be valid
insofar as they are NOT inofficious. Thus, the Supreme Court held:
The annulment of the institution of heirs, in case of preterition, thus in toto and creates
intestate succession; but legacies and devises are valid in so far as they are not inofficious.
Maninang vs. Court of Appeals, (114 SCRA 478; Acain vs. Intermediate Appellate Court, 155
SCRA 100)

SAMPLE PROBLEMS:
PROBLEM NO. 1:
A testator, whose net estate is valued at P100 Million, totally omitting his only legitimate child
in his will stated in his last will and testament:
I hereby leave my entire estate to my beloved niece, Liza Marie
Is there preterition?

PROBLEM NO. 2:
SAME PREMISE, but the disposition is as follows:
I hereby leave my 100 Hectare farm at General Santos City, valued at P20 Million to my
Niece Liza Marie, to my Nephew Jaime my house and lot at Marikina worth P10 Million, and to
my Brother Rodrigo my Condominium Unit at Robinson Tower 1 at Padre Faura, Manila, worth
P5 Million.
Is there preterition?
The testator also made SAME, SAME, but in addition to the disposition in Problem 2, the
following dispositions was added:
And also to my friend Mario, my house and lot at Quezon City worth P15 Million, and to my
former girl friend, Alona, my building at Pioneer Street, General Santos City worth P10 Million.
Is there preterition?
BE SURE TO READ THE FOLLOWING CASES;
NERI VS. AKUTIN, 74 PHIL. 185.
Escuin vs. Escuin, 11 Phil. 332
Eleazar vs. Eleazar, 67 Phil. 497
QUESTION: Suppose the spouse was left out in the will. Will the institution of heir annulled?
Answer: No, if the spouse was left out in the will or the testator gave nothing to him/her, the
institution of heir will not be totally annulled. The institution is only partially annulled, by reducing
the rights of the instituted heir to the extent necessary to cover the legitime of the omitted
surviving spouse. This differs from the preterition of compulsory heirs in the direct line, which

produces total intestacy, saving devises and legacies.

Please note that the legitime of the surviving spouse is protected by Article 842, which
provides that one who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regards to the legitime of said heirs.

Art. 855. The share of a child or descendant omitted in a will must first be taken from the part
of the estate not disposed of by will, if any; if that is not sufficient, so much as may be necessary
must be taken proportionately from the shares of the other compulsory heirs. (1080a)

NOTA BENE: According to Tolentino, this article does not necessarily refer to preterition. It
refers to a child or descendant omitted in the will. Because mere omission of a compulsory heir
in the direct line does not necessarily imply preterition as the compulsory may have receive or
may still receive a part of the inheritance in some other concept than by will. There will be
preterition of such compulsory heir if he is completely omitted from the inheritance of the
decedent.
It must not be conditional.
1st Requisite: There must be a FIRST HEIR. The 1st heir is called the FIDUCIARY. He is not a
mere administrator of the property. Neither is he a mere intermediary or agent of the deceased.
He is an instituted heir, entitled to the enjoyment of the property. He is also considered as a
usufructuary, thus, although he has the right to enjoy the property, he cannot alienate it. Like a
usufructuary, he is implicitly bound to make an inventory to know what properties he must
preserve and transmit.
2nd Requisite: To preserve and transmit. The obligation to preserve and transmit must be given
clearly and expressly, either by giving the substitution this name of fideicommissary substitution
or by imposing upon the first heir the absolute obligation to deliver the property to a second
heir. Hence, if mere advise, suggestion, or request, or if obligation is conditional, no
fideicommissary substitution.
3rd Requisite: There must be a SECOND HEIR: The second heir is known as fideicommissary,
and as a sort of naked owner. It is only upon transmission to him of the property that full
ownership is consolidated in him. Because he inherits from the testator, he must be capacitated
to inherit from the testator.
4th Requisite: The First and the Second heirs must be ONE DEGREE APART.
Meaning of One Degree.
According to the Spanish Supreme Court, one-degree means one transfer, one transmission or
one substitution, the purpose is to prevent successive entailments, regardless of relationship
(TS, June 23, 1940). J.B.L. Reyes, Profs. Ricardo Puno, Caguioa and the late Jess Paredes, Jr.

subscribe to this view.

According to Manresa, Tolentino, Padilla and Paras, one degree means one-degree relationship
by blood
5th Requisite: Both the First Heir and the Second Heirs Must Be Alive (or at Least Conceived) at
the time of the Death of the Testator:
Be sure to know Perez vs. Garchitorena, 54 Phil 431 for a better understanding of
Fideicommissary Substitution:

Art. 864. A fideicommissary substitution can never burden the legitime. (782)

Art. 865. Every fideicommissary substitution must be expressly made in order that it may be
valid.
The fiduciary shall be obliged to deliver the inheritance to the second heir, without other
deductions than those which arise from legitimate expenses, credits and improvements, save
the case where the testator has provided otherwise. (783)
Nota Bene: To be express, the words fideicommissary substitution need not be used by the
testator; it is sufficient that there be the absolute obligation imposed by the testator to the 1st
heir of delivering (and therefore preserving the property) to the 2nd heir. On the other hand just
because the word fideicommissary substitution was used by the testator, it does not necessarily
mean that it takes effect after all the other essential requisites may be absent.
In the absence of period fixed by the testator, the inheritance must be delivered at death of
the first heir.
Deductions to be made in case of transmittal of the property to the 2nd heir:
1. Legitimate Expenses, such as necessary repairs for the preservation of the property; and
the increase in value occasioned by useful improvements. (Note: The actual expenses for useful
improvements are not reimbursable) (Example of useful improvements is: a house, a fence.
Other legitimate expenses include those spent to defend the property from usurpation by others.
Expenses for luxury are not to be reimbursed.
2. Legitimate credits.
3. Legitimate Improvements.

Art. 866. The second heir shall acquire a right to the succession from the time of the testators
death, even though he should die before the fiduciary. The right of the second heir shall pass to
his heirs. (784)
NOTA BENE: This is self-explanatory.

867. The following shall not take effect:

Fideicommissary substitution which are not made in an express manner, either by giving them
this name, or imposing upon the fiduciary the absolute obligation to deliver the property to a
second heir;
Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond
the limit fixed in article 863;
Those which impose upon the heir the charge of paying various persons successively, beyond
the limit prescribed in article 863, a certain income or pension;
Those which leave to a person the whole or part of the hereditary property in order that he may
apply or invest the same according to secret instructions communicated to him by the testator.
(785a)
NOTA BENE:
Perpetual prohibition to alienate: Example. The testator devised a parcel of land to A and
imposed upon the latter never to alienate the said property. Under the present article, (Article
867, No. 2, strictly speaking the stipulation is of no effect. However, under Article 870, it is
submitted that same would be valid, but only for the first twenty years. Thus, A can sell the land
after twenty years, but not before.
Provisions which contain a perpetual prohibition to alienate beyond the limit fixed in article 863:
Example. The testator devised a parcel of land to A and further provided in his will that A is
obliged to preserve and transfer the property to his As son B upon his death; B was also obliged
by the testator to preserve and transfer the property after his (Bs) death to his own son C. Here,
the perpetual obligation not to alienate the property imposed upon B has no effect at all. But
with the regards to the perpetual obligation not to alienate the same property imposed upon A is
valid. Why, reason out.
Provision which contains a temporary prohibition to alienate beyond the limit fixed in article 863.
Example:
The testator provided in his will:

Upon my death, my house and lot at Forbes Park shall go to my friend A. He shall preserve and
hold the property for a period of ten years after my death and within that period he cannot
alienate or encumber the same because after the lapse of the said period, he shall transfer the
ownership of the said property to his son B. B however, cannot sell the property for a period of
another ten year from acquisition of ownership thereof because after the said period, he shall be
obliged to transfer the ownership thereof to his own son X. Here although the prohibition to
alienate the property is temporary, but because the prohibition goes beyond the limit fixed in
article 863, the prohibition imposed against B by the testator shall not take effect.
NOTA BENE: THE PERPETUAL PROHIBITION TO ALIENATE IMPOSED AGAINST THE 1ST
HEIR (FIDUCIARY) MAY ACTUALLY LAST FOR MORE THAN 20 YEARS AND THAT WILL BE
PERFECTLY VALID AND ARTICLE 870, NO. 2 WILL NOT BE APPLICABLE IN SUCH CASE.
OTHERWISE, THE PUROPOSE OF A FIDEICOMMISSARY SUBSTITUTION WILL BE
NEGATED OR DEFEATED.
Please note that in case there is no fideicommissary substitution, even if the temporary
prohibition to alienate is within the limit provided in article 863, the period of the temporary
disqualification can not go beyond 20 years because of the prohibition in Art. 870.
Payment of Income or Pensions. Any provision in the will that imposes upon the heir the
obligation of paying a certain income or pension to various persons successively, beyond the
limit prescribed in article 863, shall not have any effect. Example: The testator instituted his only
son as sole heir to his estate. It was provided in the will that the sole heir shall be obliged to pay
a lifetime pension of P100 Thousand Pesos a month to his (testators) friend A. After A death, the
sole heir shall pay the pension instead to the only son of A B. But after the death of B the sole
heir shall pay the daughter of B, C. The obligation imposed on the sole heir to pay a pension to
C after the death of B shall have no effect and it would not
then be enforceable.
Effect of Secret Instructions: If the one given the secret instruction was really intended to be an
heir by the testator, then only the secret instruction is ineffective and must be disregarded and
the legacy or devise given to him must be respected. But if the person who received the secret
instruction was only intended to be a mere agent of the testator for the former to received the
said property, in whole or in part, so that said property may be applied, given to another or
invested in accordance with the secret instruction of the testator, then both the testamentary
disposition and the secret instruction must be disregarded for being ineffective.

Art. 868. The nullity of the fideicommissary substitution does not prejudice the validity of the
institution of the heirs first designated; the fideicommissary clause shall simply be considered as
not written. (786)
Example: The testator instituted A as first heir and B as second heir in a fideicommissary
substitution. If B should predecease the testator, the fideicommissary substitution is annulled

because for the validity thereof, both the 1st and 2nd heir must survive the testator. However,
predecease of B will not prejudice the validity of the institution of the 1st heir because the
fideicommissary clause shall simply be considered as not written.

Art. 869. A provision whereby the testator leaves to a person the whole or in part of the
inheritance, and to other the usufruct, shall be valid. If he gives the usufruct to various persons,
not simultaneously, but successively, the provisions of article 863 shall apply. (787a)
Simply put, this article tells us that the testator can give to an heir the naked ownership of the
whole or a part of the inheritance but at the same time leave to another the usufruct thereof. In
case he will also give the usufruct of the property bequeathed or devised or the whole or any
part of the estate to various persons successively, the provisions of Art. 863 must be followed.

Art. 870. The dispositions of the testator declaring all or part of the estate inalienable for more
than twenty years are void. (n)
PLEASE TAKE NOTE VERY WELL: The reason for the enactment of Article 870 is to give more
impetus to the socialization of the ownership of property, and to prevent the perpetuation of
large holdings which give rise to agrarian trouble.
Note that in fideicommissary substitution, a prohibition for the first heir not to alienate the
property for more than twenty years is valid. To hold otherwise would defeat the very purpose of
the law in enacting the provision for fideicommissary substitution. In fact, the fiduciary in a
fideicommissary substitution is obliged to preserve the property for the fideicommissary during
his remaining lifetime after the death of the testator.

Section 4
CONDITIONAL TESTAMENTARY DISPOSITIONS
AND TESTAMENTARY DISPOSITIONS WITH A TERM

Art. 871. The institution of an heir may be made conditionally, or for a certain purpose or
cause. (790a)
NOTA BENE: A testator may make the validity and efficacy of his testamentary dispositions
dependent upon such future and uncertain events. A testator to compel the fulfillment of or the
abstention from certain things under pain of losing the inheritance, devise, or legacy can
frequently utilize this manner of institution. It must always be borne in mind at all times that the
legitime of compulsory heirs cannot be impaired by the testator by the imposition of any

condition.
DIFFIRENT KINDS OF INSTITUTION OF HEIRS:
A. With a Condition (Art. 871 to 877 and 883 to 884)
B. With a Term (Arts. 878, 880, 885)
C. For a certain purpose or cause (modal institution) (Arts. 871, 882 & 883)
Definitions:
Condition future or uncertain event, or a past or future event unknown to the parties, upon
which the performance of an obligation depends (Art. 1179)
Term the day or time when an obligation either becomes demandable or terminates (Art. 1193).
A day certain is understood to be that which must necessarily come, although it may not be
known when (Art. 1193, 3rd paragraph). As applied to succession, it is the day or time when the
effect of an institution of the heir is to begin or cease. Under Article 855 of the Civil Code the
designation of the day or time when the effects of the institution of an heir shall commence or
cease is allowed.
Modal Institution
1. When the institution of an heir is made for a certain purpose or cause (Art. 871).
2. The statement of the object of the institution or the application of the property left by the
testator or the charge imposed upon him (Art. 882). Note: Such statement shall not be
considered a condition unless it appears that such was his intention (Art. 882).
3. Modo also signified every onerous disposition by which the obligor imposed upon another
and thus limited his promise, such as demanding a loan in exchange for what the other person
receive (Manresa)
NOTA BENE: The institution of an heir may be made conditionally, or for a certain purpose or
cause. But always bear in mind that the conditions, purpose or cause for the institution of the
heir must not be contrary to law, morals, good customs, public policy or public order. It may also
be possible that the conditions, purpose or cause of the institution may not be found on the will
where the institution was made but in another instrument, however, for such other instrument to
effect the institution, it must be executed with the same formalities as a will.
Art. 872. The testator cannot impose any charge, condition, or substitution whatsoever upon
the legitimes prescribed in this Code. Should he do so, the same shall be considered as not
imposed. (813a)
QUESTION: What is the reason why the testator cannot impose any charge, conditions, or

substitution on the legitime of his compulsory heir?

Nota Bene: The testator is allowed to forbid the partition of the estate for a period not exceeding
twenty years; and this power to prohibit division applies to the legitime (Article 1083).
Art. 873. Impossible conditions and those contrary to law or good customs shall be considered
as not imposed and shall in no manner prejudice the heir, even if the testator should otherwise
provide. (792a)
This article expressly departs from the well-recognized principle that the will of the testator
must be the law governing the succession.
In obligations and contracts, when the condition is impossible, contrary to law or to good morals,
the obligation dependent upon it is void. However, in case of testamentary dispositions, such
condition is disregarded, and the validity of the disposition is maintained. The validity of the
testamentary disposition is maintained because the law presumes that the condition is an error
or oversight of the testator, or a mere whim or caprice.
In connection with this article please bear in mind that the will is an act of liberality, and the
intention of the testator to benefit the heir must be considered as stronger that the impossible
limitation which he adds to it. Thus, the impossible condition is simply disregarded. The rule is
different in act inter vivos, where the impossible condition annuls the obligation dependent upon
it. One reason advanced for this difference is that even when the act inter vivos is annulled, it
can still be repeated by the donor; but if the act mortis causa is annulled, it can no longer be
repeated, because the testator would be dead by then.
The determination of the impossibility of the condition imposed by the testator is to be reckoned
at the time of the fulfillment thereof.

Art. 874. An absolute condition not to contract a first or subsequent marriage shall be
considered as not written unless such condition has been imposed on the widow or widower by
the deceased spouse, or by the latters ascendants or descendants.

Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised
or bequeathed to any person for the time during which he or she should remain unmarried or in
widowhood. (794a)
Please note that an absolute condition not to contract a first or subsequent marriage to be
binding on the heir must be imposed on the latter by her or his deceased spouse or by the
latters ascendants or descendants. If the condition was imposed on the heir by a testator who is
neither the spouse nor the latters ascendants or descendants, the condition shall be considered
as not written and need not be complied with for the said heir to receive his or her inheritance.

Please also note, however, that the right of usufruct, or an allowance or some personal
prestation may be devised or bequeathed to any person for the time during which he or she
should remain unmarried or in widowhood.
The 1st paragraph is self-explanatory. An example of the 2nd paragraph is:
T in his will gave the usufruct of his Building at Ayala Avenue, Makati City to his friend B as long
as the latter remained unmarried.
Art. 875. Any disposition made upon the condition that the heir shall make some provisions in
his will in favor of the testator or of any other person shall be void. (794a)
This article speaks of what is known as disposition captatoria. This kind of disposition is void
because it tends to make the making of the will a contractual act. Here the disposition itself, and
not merely the condition, is void
Example of the prohibited disposition under this article:
Mario gave in his will a legacy to Juan on the condition that the latter in his own will would
finance the education of Jose.

Art. 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as
soon as he learns of the testators death.
This rule shall not apply when the condition, already complied with, cannot be fulfilled again.
(795a)
NOTA BENE: Article 876 speaks of a potestative condition. A potestative condition is one the
fulfillment of which depends purely on the heir. He must perform personally and nobody else
must do it for him.
Please always bear in mind that the purely potestative condition must be complied with
AFTER, and not before, the testators death because it is only then that obedience to or
compliance with the condition can be indicated.
Example: The testator instituted Mario as his sole heir on condition that the latter would eat
the 1st cake he would bake. Mario must fulfill the condition as soon as possible after the
testators death. Of course, if Mario had already baked his first cake and ate the same even
before the death of the testator, he will receive his inheritance just the same. But if Mario had
already baked his 1st cake even before the death of the testator and he did not eat it, should he
bake a cake after the death of the testator he should eat it for him to be entitled to his
inheritance?

Art. 877. If the condition is casual or mixed, it shall be sufficient if it happen or be fulfilled at
any time before or after the death of the testator, unless he has provided otherwise.
Should it have existed or should it have been fulfilled at the time the will was executed and
the testator was unaware thereof, it shall be deemed as complied with.
If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such
nature that it can no longer exist or be complied with again. (796)
NOTA BENE:
A condition is CASUAL if it does not depend on the will of the heir, legatee or devisee, but upon
chance and/or the will of a third person.
A condition is mixed if it defends both partly upon the will of the heir himself AND upon chance
and/or upon the will of a third person.
Example of Casual Condition:
BY CHANCE:
The testator gives a legacy to Pedro on condition that THE LATTERS BROTHER, JOSE wins a
consolation prize of at least P20,000.00 in any lotto draw within a year immediately after his
death. If within a year from the death of the testator, JOSE should win a consolation o prize of at
least P20,000.00 in any lotto draw, then PEDRO gets his legacy. Otherwise, he will not.
UPON THE WILL OF A THIRD PERSON:
The testator gives a legacy to PEDRO on condition that within three (3) years after his death,
the brother of PEDRO, MARIANITO HEMINGWAY who is a famous author finish his novel,
entitled, WHERE ARE THE CLOWNS?
Please note that under Article 877, substantive or constructive compliance is enough for the
fulfillment of the obligation with respect to potestative conditions, except of course, the testator
in his will manifests the contrary intention. However, in mixed conditions, since the will of a third
party intervenes, a distinction should be made. If the heir, devisee, or legatee has done
everything within his power towards the fulfillment of the condition, but this is not fulfilled
because of the failure of the third party to comply with what is expected of him, the condition is
deemed fulfilled if such party has an interest in the fulfillment or non-fulfillment of the condition,
otherwise, the condition cannot be considered fulfilled, and the institution is annulled.
Note that in casual conditions, there can be no constructive compliance, since their performance

does not defend on the will of the heir, devisee, or legatee, there must always be fulfillment as a
fact or actual compliance.
Art. 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring
his rights and transmitting them to his heir even before the arrival of the term. (799a)
DISTINCTINCTION BETWEEN A TERM AND A CONDITION:
While a condition is an uncertain event which may or may not happen, a term is sure to
happen or to arrive, even if the exact date of such happening or arrival may be uncertain. In a
conditional institution, therefore, the acquisition of the right of the heir depends upon the
happening of the condition, such as if the condition does not happen, the heir does not succeed.
But in an institution with a term, the right is already transmitted to the heir upon the death of the
testator; the term merely serves to determine the demandability of such right already acquired.
Example of difference:
Suspensive Term: If Maria dies. The time of death may be uncertain, but being mortal, the death
of Maria is a sure thing to happen.
Suspensive condition: If Maria dies of cholera. Although Maria will surely die, she being but a
mortal, however, her death may not be necessarily due to cholera.
Like the condition, the term may either be suspensive or resolutory. It is suspensive when the
inheritance can be delivered to the heir only upon the arrival of the term; and it is resolutory
when the inheritance is delivered immediately upon the death of the testator to the instituted
heir, who holds it until the arrival of the period.
EFFECTS OF A SUSPENSIVE TERM: The heir instituted under a suspensive term acquires
his right from the moment of the testators death; therefore, even if such heir die before the term
arrives, his right is no longer affected. His own heirs are entitled to succeed to his rights to the
inheritance, which must be delivered to them when the term arrives.
EXAMPLE OF A DISPOSITION WITH A SUSPENSIVE TERM:
The testator instituted his brother B as heir, the
institution to be effective upon the death of SADAM. The testator dies in 2000. The effects of
institution of heir will have to wait till the death of SADAM.
Question: What if Sadam died ahead of the testator. Will the institution of his brother B
effective?

Art. 879. If the potestative condition imposed upon the heir is negative, or consists in not
doing or giving something, he shall comply by giving a security the he will not do or give that
which has been prohibited by the testator, and in case of contravention he will return whatever
he may have received, together with its fruits and interests. (800a)

The bond or security given by an heir conditioned that he will not do or give something
prohibited of him by the testator under the will is called CAUCION MUCIANA. The said bond or
security should be given in favor of those who would get the property if the condition be not
complied with.
Example of Negative Potestative Condition:
The testator institutes his brother B who is a notorious gambler, on condition that he should
not smoke tobacco within ten (10) year from his death. Upon the death of the testator, B gets his
inheritance right away but the persons who are to be benefited with the non-fulfillment of the
condition can ask for the giving of a security that B must comply. If he does not smoke tobacco
within the prohibited period, B gets his inheritance for good. However, if he does, then the
persons to be benefited can demand the inheritance from B with its fruits and interest.

Art. 880. If the heir be instituted under a suspensive condition or term, the estate shall be
placed under administration until the condition is fulfilled, or until it becomes certain that it
cannot be fulfilled, or until the arrival of the term.
The same shall be done if the heir does not give the security required in the preceding article.
(801a)

Art. 881. The appointment of the administrator of the estate mentioned in the preceding
article, as well as the manner of administration and the rights and obligations of the
administrator shall be governed by the Rules of Court. (804a)
Nota Bene: Articles 880 and 881 are both self-explanatory. However, be sure to know the
distinction between an Executor and an Administrator. Also know the terms letters testamentary,
administrator with a will annexed and letters of administration with a will annexed under Sec. 4,
5, of Rule 79 and Sec. 4 of Rule 77 of the Revised Rules of Court. You will take these matters in
Special Proceedings.

Art. 882. The statement of the object of the institution, or the application of the property left by
the testator, or the charge imposed by him, shall not be considered as a condition unless it
appears that such was his intention.

That which has been left in this manner may be claimed at once provided that the instituted
heir or his heirs give security for compliance with the wishes of the testator and for the return of
anything he or they may receive, together with its fruits and interests, if he or they should
disregard this obligation. (797a)

Article 882 speaks of Modal Institution or institucion sub modo . This form of institution is one
where the testator states (1) the object of the institution, or (2) the purpose of application of the
property left by the testator, or (3) the charge imposed by the testator upon the heir.
In modal institution or institucion sub modo, an obligation is imposed by the testator upon the
heir, legatee or devisee, but does not affect the efficacy of the latters right to the succession.
Thus, a MODE may be distinguished from a CONDITION in the following tenor:
A CONDITION must be fulfilled for an instituted heir, legatee or devisee to acquire a perfect
right as such; whereas, a MODE is complied with because of being already an heir, a legatee or
a devisee.

Please note that Article 882 follows the principle that testamentary dispositions are generally
acts of liberality, an obligation imposed upon the heir, legatee or devisee should not be
considered a condition unless it clearly appears from the will itself that such was the intention of
the testator. In case of doubt, the institution should be considered as modal and not conditional.

Art. 883. When without the fault of the heir, an institution referred to in the preceding article
cannot take effect in the exact manner stated by the testator, it shall be complied with in a
manner most analogous to and in conformity with his wishes.
If the person interested in the condition should prevent its fulfillment, without the fault of the
heir, the conditions shall be deemed to have been complied with. (798a)
Constructive or substantial compliance was already discussed. Do remember that in MODAL
INSTITUTION, if the person for whose benefit the mode has been imposed should renounce his
right, there is no more need for the instituted heir to comply with the wishes of the testator. But if
the third party beneficiary seeks to enforce the obligation, and it cannot be complied with in the
exact terms of the will, then compliance must be in terms most analogous to and in conformity
with the wishes of the testator. If the intestate heirs or third party beneficiary, who would legally
take the property with its fruits and interests upon non-compliance with the obligation, however,
prevents the fulfillment of the mode, then the obligation should be construed as fulfilled, by
analogy to the rules on the fulfillment of conditions.

Art. 884. Conditions imposed by the testator upon the heirs shall be governed by the rules

established for conditional obligations in all matters not provided for by this Section. (791a)
Please be informed that there is a section in Book IV of the Civil Code, Obligations and
contracts, particularly Chapter 3, Section 1 thereof that deals on conditional obligations. Art. 884
simply tells us that Section 1, Chapter 3 of Book IV of the Civil Code shall be applied to
supplement whatever deficiency in the provisions in the law of succession on testamentary
succession.

Art. 885. The designation of the day or time when the effects of the institution of an heir shall
commence or cease shall be valid.
In both cases, the legal heir shall be considered as called to the succession until the arrival of
the period or its expiration. But in the first case he shall not enter into possession of the property
until after having given sufficient surety, with the intervention of the instituted heir. (805)
INSTITUTION WITH A TERM:
Suspensive Term or EX DIE effects begin from a certain day. Example: On the tenth day after
my death.
Resolutory Term or IN DIEM Effect cease on a certain day. Example: Until the end of the year
2020
EX DIE IN DIEM from a certain day to a certain day: Example: from the time of my death until
exactly 10 years therefrom. Or from January 1, 2010 to December 31, 2020.
Example of application of Art. 885.

The testator has a brother B as his only relative. In his will, the testator however, institutes his
best friend C as his sole heir effective on the 10th year after his death. Upon the death of the
testator and until the arrival of the 10th year following his death, his brother B is called to the
succession. But B cannot enter into possession of the property until after he has given sufficient
security. The security must be approved and considered by C, the instituted heir.

Section 5
LEGITIME
Art. 886. Legitime is that part of the testators property which he cannot dispose of because

the law has reserved it for certain heirs who are, therefore, called compulsory heirs. (806)
Nature and Purpose of Legitime: The system of legitime is a limitation upon the freedom of
the testator to dispose of his property. Its purpose is to protect those heirs, for whom the testator
is presumed to have an obligation to reserve certain portions of his estate, from his unjust ire or
weakness or thoughtlessness. Thus, the testator cannot impose any lien, substitution or
condition on the legitime of his compulsory heirs.
Respect of the Law for the Legitime: The law respects the legitime so much that even
donations inter vivos are to be reduced if found inofficious (if they exceed the free portion) for no
person may give by way of donation more than he may give by will.
Legitime is a Notion in Law and has no Physical Form: The legitime does not consist in
determinate or specific property which the testator must reserve for his compulsory heirs. It
consists of a part or fraction of the entire mass of the hereditary estate. Law fixes the standard
or measure for its determination, but the quantity may vary according to the number and relation
of the heirs to the testator.

Art. 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their legitimate parents and
ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate
children and descendants;
(3) The widow or widower;
(4) Acknowledge natural children, and natural children by legal fiction;
(5) Other compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1
and 2; neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes mentioned, shall inherit from
them in the manner and to the extent established by this Code. (807a)

THREE KINDS OF HEIRS

In succession, there are three kinds of heirs. They are distinguished from each other as
follows:
The Voluntary Heirs, who become such only by the express will of the testator. They can only
be present in testamentary succession;
The Legal or Intestate Heirs, who are called by law to the succession in the absence of
voluntary heirs designated by the testator. They are present only in intestate succession;
The Compulsory Heirs, for whom the legitime is reserved by the law, and who succeed
whether the testator likes it or not, for they cannot be deprived by the testator of their
participation in the inheritance except by disinheritance properly effected.
Both the compulsory and the intestate heirs are called to the succession by operation of law.
The difference, however, is that the intestate heir succeeds only when the deceased has not
disposed of his property by will; while the compulsory heir succeeds to his legitime even when
the testator has so disposed of his property.
A compulsory heir has no obligation to accept or received the legitime. An heir of whatever
classification is absolutely free to accept or renounce the inheritance. The law on legitime is a
restriction, not on the freedom of the heir to accept or repudiate the inheritance, but on the
freedom of the testator to dispose of his property.
KINDS OF COMPUSORY HEIRS
There are three kinds of compulsory heirs. Namely:
PRIMARY COMPULSORY HEIRS Those who have precedence over and exclude other
compulsory heirs. Legitimate children and descendants are primary compulsory heirs.
SECONDARY COMPULSORY HEIRS Those who succeed only in the absence of the primary
heirs. The legitimate parents and ascendants are secondary compulsory heirs.
CONCURRING COMPULSORY HEIRS Those who succeeds together with the primary or
secondary compulsory heirs. The illegitimate children, and the surviving spouse are concurring
compulsory heirs.
SPECIAL RULE ON DIRECT DESCENDING AND/OR ASCENDING LINE
The presence of legitimate children and legitimate descendants eliminates all ascendants of the
deceased. Thus, with respect to legitimate parents and ascendants, they inherit only in default

of legitimate children or legitimate descendants. And with respect to illegitimate parents and
illegitimate ascendants, they inherit only in default of legitimate children or illegitimate children.
The nearest degree excludes the more remote, except in cases where representation is proper

Art. 888. The legitime of legitimate children and descendants consists of one-half of the
hereditary estate of the father and of the mother.
The latter may freely dispose of the remaining half, subject to the rights of illegitimate children
and of the surviving spouse as hereinafter provided. (808a)
Nota Bene: If for example, the estate of the testator (father or mother) is worth 100 Million,
the legitime of legitimate children is 50 Million because it is one-half of the hereditary estate of
the decedent. The balance of 50 Million is the free portion. From this free portion will be
deducted or satisfied the legitime of the surviving spouse (if any) and/or the illegitimate children
(if any). The remainder is called the free disposal because this is really that part of the estate of
the testator that he can give freely even to strangers.

Art. 889. The legitime of legitimate parents or ascendants consists of one-half of the
hereditary estate of their children and descendants.
The children or descendants may freely dispose of the other half, subject to the rights of
illegitimate children and of the surviving spouse as hereinafter provided. (809)
Example of the application of Article 889:
Say, only his legitimate parents survive the testator and his estate at the time of his death is
100 Million Pesos. The legitime of the parents is one-half of the hereditary estate. Thus, the
legitime of the surviving parents of the testator is 50 Million Pesos to be divided equally between
them. Hence, the legitime of the legitimate father is P25 Million while that of the legitimate
mother is also the same.

Art. 890. The legitime reserved for the legitimate parents shall be divided between them
equally; if one of the parents should have died, the whole shall pass to the survivor.
If the testator leaves neither father nor mother, but is survived by ascendants of equal degree
of the paternal and maternal lines, the legitime shall be divided equally between both lines. If the
ascendants should be of different degrees, it shall pertain entirely to the ones nearest in degree
of either line. (810)
Please note the special rule that the nearest degree excludes that of the more remote.

Art. 891. The ascendants who inherits from his descendant any property which the latter may
have acquired by gratuitous title from another ascendant, or a bother 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. (871)
Nota Bene: We will discuss Reserva Troncal in detail after we are finish with legitime.

Art. 891. If only one legitimate child or descendant of the deceased survives, the widow or
widower shall be entitled to one-fourth of the hereditary estate. In case of a legal separation, the
surviving spouse may inherit if it was the deceased who had given cause for the same.
If there are two or more legitimate children or descendants, the surviving spouse shall be
entitled to a portion equal to the legitime of each of the legitimate children or descendants.
In both cases, the legitime of the surviving spouse shall be taken from the portion that can be
freely disposed of by the testator. (834a)
RESUME: Legitime of the surviving spouse if concurring only with legitimate children or
descendants of decedent/testator:
If concurring with only one legitimate child or descendant Legitime is one-fourth of the estate;
If concurring with two or more legitimate children or descendants Legitime is equal to the
legitime of each legitimate child or descendant.

Art. 893. If the testator leaves no legitimate descendants, but leaves legitimate ascendants,
the surviving spouse shall have a right to one-fourth of the hereditary estate.
This fourth shall be taken from the free portion of the estate. (836a)
RESUME: Legitime of the surviving spouse if concurring only with legitimate ascendants of
the testator/decedent is one-fourth of the estate.
Art. 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to
one-third of the hereditary estate of the deceased and the illegitimate children to another third.
The remaining third shall be at the free disposal of the testator. (n)
RESUME: Testator/decedent is survived only by the surviving spouse and illegitimate
children: Spouse 1/3; Illegitimate Children, 1/3, the free disposal is 1/3.

Art. 895. The legitime of each of the acknowledged natural children and each of the natural
children by legal fiction shall consist of one-half of the legitime of each of the legitimate children
or descendants.
The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural
child by legal fiction, shall be equal in every case to four-fifths of the legitime of an
acknowledged natural child.
The legitime of the illegitimate children shall be taken from the portion of the estate at the free
disposal of the testator, provided that in no case shall the total legitime of such illegitimate
children exceed that free portion, and that the legitime of the surviving spouse must first be fully
satisfied.
RESUME: Testator/decedent survived by legitimate child/children, spouse, acknowledged
natural child, natural child by legal fiction and illegitimate children. Legitimate child/children ;
Wife or equal to the legitime of each of the legitimate children; acknowledged natural
child/natural child by legal fiction/illegitimate child of the legitime of each legitimate
children/child but the their legitime shall be taken from the free portion after the legitime of the
surviving spouse has been satisfied.

Art. 896. Illegitimate children who may survive with legitimate parents or ascendants of the
deceased shall be entitled to one-fourth of the hereditary estate to be taken from the portion at
the free disposal of the testator. (841a)
RESUME: Testator/decedent survived by legitimate parents or ascendants and illegitimate
children Legitimate parents/ascendants one-half; Illegitimate children one-fourth to be taken
from the free disposal of the testator.

Art. 897. When the widow or widower survives with legitimate children or descendants, and
acknowledged natural children or natural children by legal fiction, such surviving spouse shall be
entitled to a portion equal to the legitime of each of the legitimate children which must be taken
from that part of the estate which the testator can freely dispose of. (n)
Nota Bene: this is the same as in Article 895 Legitime of wife is equal to the legitime of one
legitimate child; that of the acknowledged natural child or natural child by legal fiction is equal to
one-half of the legitime of 1 legitimate child.
Art. 898. If the widow or widower survives with legitimate children or descendants, and with
illegitimate children other than acknowledged natural, or natural children by legal fiction, the
share of the surviving spouse shall be the same as that provided in the preceding article. (n)
This article is self-explanatory. Note however, that the Family Code has now abolished the

distinction between natural and other illegitimate children, all of them being grouped now under
one class illegitimate children.

Art. 899. When the widow or widower survives with legitimate parents or ascendants and with
illegitimate children, such surviving spouse shall be entitled to one-eighth of the hereditary
estate of the deceased which must be taken from the free portion, and the illegitimate children
shall be entitled to one-fourth of the estate which shall be taken also from the disposable
portion. The testator may freely dispose of the remaining one-eighth of the estate. (n)
RESUME: Surviving spouse concurring with legitimate parents/ascendants and illegitimate
children. Legitimate Parents/ascendants one-half of the estate; Surviving spouse one-eighth
(1/8); Illegitimate children One-fourth (1/4). The share of the surviving spouse and the
illegitimate children to be taken from the free portion but the wife shall have priority.
Art. 900. If the only survivor is the widow or widower, she or she shall be entitled to one-half
of the hereditary estate of the deceased spouse, and the testator may freely dispose of the
other half. (837a)
If the marriage between the surviving
spouse and the testator was solemnized in articulo mortis, and the testator died within three
months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall
be one-third of the hereditary estate, except when they have been living as husband and wife
for more than five years. In the latter case, the legitime of the surviving spouse shall be that
specified in the preceding paragraph. (n)
NOTA BENE: This article will apply only if the only compulsory heir of the testator/decedent is
the surviving spouse. Hence, the legitime of the surviving spouse is one-half of the hereditary
estate. However, if her marriage with the testator/decedent was solemnized in articulo mortis
and the testator died within three months from the time of marriage, the legitime will only be
one-third of the hereditary estate, except, if they have been living as husband and wife for more
than five years prior to the marriage.

Art. 901. When the testator dies leaving illegitimate children and no other compulsory heirs,
such illegitimate children shall have a right to one-half of the hereditary estate of the deceased.
The other half shall be at the free disposal of the testator. (842a)
Nota Bene: This article is self-explanatory.

Art. 902. The rights of illegitimate children set forth in the preceding articles are transmitted
upon their death to their descendants, whether legitimate or illegitimate. (843a)

NOTA BENE: Please take due notice of the phrase set forth in the preceding articles The
articles referred to in the said phrase are articles 894, 895, 896, 899 and 901. This is important
because under the old Civil Code, only legitimate descendants were allowed to represent an
acknowledged natural child. However, Article 902 now allows both the legitimate and the
illegitimate descendants to represent the illegitimate child who predeceases his own parent.
Under the old code, they did not have this right. Since the distinction between legitimate and
illegitimate children have been primarily preserved in the New Civil code, the illegitimate
children must be considered as having only those rights which are clearly and expressly granted
to them in the Civil Code.
Thus, the phrase set forth in the preceding articles should mean that the only rights of
illegitimate children that they transmit to their descendants, whether legitimate or illegitimate,
upon their death is their legitime as granted and specified in articles 894, 895, 896, 899 and 901
of the Civil Code. The restrictive and qualifying words set forth in the preceding articles exclude
the possibility of extending the right of representation conferred by this article to other rights or
other parts of the inheritance. Hence, Article 902 has no application to intestate succession; the
right to represent an illegitimate child in intestate succession is provided for in articles 989 and
990.
IT MUST ALSO BE NOTED VERY WELL that only illegitimate children of an illegitimate child
are given the right of representation in article 902. There is no law or provision in the Civil Code
which expressly gives this right to the illegitimate children of a legitimate child

Art. 903. The legitime of the parents who have an illegitimate child, when such child leaves
neither legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of
the hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left,
the parents are not entitled to any legitime whatsoever. If only the widow or widower survives
with parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary
estate of the child, and that of the surviving spouse also one-fourth of the estate.

Art. 904. The testator cannot deprive his compulsory heirs of their legitime, except in cases
expressly specified by law. Neither can he impose upon the same any burden, encumbrance,
condition, or substitution of any kind whatsoever. (813a)
NOTA BENE: The only encumbrance that the testator can impose upon the legitime is that he
can forbid the partition of the inheritance, including the legitime, for not more than twenty years.

(INSERT MISSING LECTURE COVERING ARTICLES 905 TO 914)

Section 6 . Disinheritance

Art. 915. A compulsory heir may, in consequence of disinheritance, be deprived of his

legitime, for causes expressly stated by law. (848a)
Art. 916. Disinheritance can be effected only through a will wherein the legal cause thereof
shall be specified. (849)
Art. 917. The burden of proving the truth of the cause of disinheritance shall rest upon the
other heirs of the testator, if the disinherited heir should deny it. (850)
Art. 918. Disinheritance without specification of the cause, or for a cause the truth of which, if
contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the
institution of heirs insofar as it may prejudice the person disinherited; but the devises and
legacies and other testamentary dispositions shall be valid to such extent as will not impair the
legitime.
Art. 919. The following shall be sufficient cause for the disinheritance of children,
descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt against the life of the
testator, his or his 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;
(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; (756, 853, 674a)
Art. 920. The following shall be sufficient causes for the disinheritance of parents or
ascendants, whether legitimate or illegitimate:
(1) When the parents have abandoned their children or induced their daughters to live a

corrupt or immoral life, or attempted against their virtue;

(2) When the parent or ascendant has been convicted of an attempt against the life of the
testator, his or his spouse, descendants, or ascendants;
(3) When the parent or ascendant has accused the testator of a crime which the law
prescribes imprisonment of six years or more, if the accusation has been found to be false;
(4) When the parent or ascendant has been convicted of adultery or concubinage with the
spouse of the testator;
(5) When the parent or ascendant by fraud, violence, intimidation, or undue influence causes
the testator to make a will or to change one already made;
(6) The loss of parental authority for causes specified in this Code;
(7) The refusal to support the children or descendants without justifiable cause;
(8) An attempt of one of the parents against the life of the other, unless there has been a
reconciliation between them. (756, 854, 674a)
Art. 921. The following shall be sufficient causes for disinheriting a spouse:
(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 for six years or more, and the accusation has been found to be false;
(3) When the spouse by fraud, violence, intimidation, or undue influence causes 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;
Unjustifiable refusal to support the children or the other spouse. (756, 855, 674a)
Art. 922. A subsequent reconciliation between the offender and the offended person deprives
the latter of the right to disinherit, and renders ineffectual any disinheritance that may have been
made. (856)
Art. 923. The children and descendants of the person disinherited shall take his or her place
and shall preserve the rights of compulsory heirs with respect to the legitime; but the

disinherited parent shall not have the usufruct or administration of the property which constitutes
the legitime. (857)
Section 7. Legacies and Devises
Art. 924. All things and rights which are within the commerce of man may be bequeathed or
devised. (865a)
Art. 925. A testator may charge with legacies and devises not only his compulsory heirs but
also legatees and devisees.
The latter shall be liable for the charge only to the extent of the value of the legacy or the
devise received by them. The compulsory heir shall not be liable for the charge beyond the
amount of the free portion given them. (858a)
Art. 926. When the testator charges one of the heirs with a legacy or devise, he alone shall be
bound.
Should he not charge anyone in particular, all shall be liable in the same proportion in which
they may inherit. (859)
Art. 927. If two or more heirs take possession of the estate, they shall be solitarily liable for
the loss or destruction of a thing devised or bequeathed, even though only one of them should
have been negligent. (n)
Art. 928. The heir who is bound to deliver the legacy or devise shall be liable in case of
eviction, if the thing is indeterminate and indicated only by its kind. (860)
Art. 929. If the testator, heirs, or legatee owns only a part of, or an interest in the thing
bequeathed, the legacy or devise shall be understood limited to such part or interest, unless the
testator expressly declares that he gives the thing in its entirety. (864a)
Art. 930. The legacy or devise of a thing belonging to another person is void, if the testator
erroneously believed that the thing pertained to him. But if the thing bequeathed, though not
belonging to the testator when he made the will, afterwards becomes his, by whatever title, the
disposition shall take effect. (862a)
Art. 931. If the testator orders that a thing belonging to another be acquired in order that it be
given to a legatee or devisee, the heir upon whom the obligation is imposed or the estate must
acquire it and give the same to the legatee or devisee; but if the owner of the thing refuses to
alienate the same, or demands an excessive price therefore, the heir or the estate shall only be
obliged to give the just value of the thing. (861a)
Art. 932. The legacy or devise of a thing which at the time of the execution of the will already

belonged to the legatee or devisee shall be ineffective, even though another person may have
interest therein.
If the testator expressly orders that the thing be freed of such interest or encumbrance, the
legacy or devise shall be valid to that extent. (866a)
Art. 933. If the thing bequeathed belonged to the legatee or devise at the time of the
execution of the will, the legacy or devise shall be without effect, even though it may have been
subsequently alienated by him.
If the legatee or devisee acquires it gratuitously after such time, he can claim nothing by
virtue of the legacy or devise, but if it has been acquired by onerous title he can demand
reimbursement from the heir or the estate. (878a)
Art. 934. If the testator should bequeathed or devise something pledged or mortgaged to
secure a recoverable debt before the execution of the will, the estate is obliged to pay the debt,
unless the contrary intention appears.
The same rule applies when the thing is pledged or mortgaged after the execution of the will.
Any other charge, perpetual or temporary, with which the thing bequeathed is burdened,
passes with it to the legatee or devisee. (867a)
Art. 935. The legacy of a credit against a third person or of the remission or release of a debt
of the legatee shall be effective only as regards that part of the credit or debt existing at the time
of the death of the testator.
In the first case, the state shall comply with the legacy by assigning to the legatee all rights of
action it may have against the debtor. In the second case, by giving the legatee an acquittance,
should he request one.
In both cases, the legacy shall comprise all interests on the credit or debt which may be due
the testator at the time of his death. (870a)
(insert missing lecture on Articles 936 to Article 959)
Chapter 3
LEGAL OR INTESTATE SUCCESSION
CONCEPT OF LEGAL SUCCESSION: Legal or intestate succession is that mode of
transmission mortis causa which takes place in the absence of the expressed will of the
decedent embodied in a testament. It is denominated as legal succession because it is that
succession that takes place by operation of law. It is also denominated as intestate succession

because it takes place only in the absence of the will of a decedent, either because the
decedent did not leave a will or he left a will but the same cannot be probated or the whole or
parts thereof cannot be given effect.
Please note that the provisions of the Civil Code on intestate succession are based on the
presumed will of the deceased. That is the law presumes that had the decedent made a will he
would have designated the persons mentioned in the various articles dealing on intestate
succession to receive his inheritance, taking into consideration, the order of preference, based
on human affection or love and blood relationship. On this basis, the law presumes that if the
intestate had made a will he would have given his property, first to his descendants, then his
ascendants, and finally to his collaterals. It is also the presumption of the law that even when
concurring with legitimate relatives, the deceased would not abandon illegitimate relatives,
illegitimate children and the surviving spouse. And in the absence of these persons, the law
further presumes that it would be in conformity with the presumed will of the deceased to have
his property pass to the
State, to be used by it for worthy purposes.
Section 1
GENERAL PROVISIONS
Art. 960. Legal or intestate succession take place:
(1) If a person dies without a will, or with a void will, or one which has subsequently lost its
validity;
(2) When the will does not institute an heir to, or dispose of all the property belonging to the
testator. In such case, legal succession shall take place only with respect to the property of
which the testator has not disposed;
(3) If the suspensive condition attached to the institution of heir does not happen or is not
fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no
substitution, and no right of accretion takes place;
(4) When the heir instituted is incapable of succeeding, except in cases provided in this Code.
(912a)
NOTA BENE: Be sure to know the instances where legal or instate succession takes place.
The instances are enumerated in Article 960.
MEANING OF THE TERM A WILL WHICH HAS SUBSEQUENTLY LOST ITS VALIDITY According to Tolentino, this term should be interpreted as EFFICACY. To him, once a will has
been executed by a testator having full legal capacity and under, the conditions and the
requisites imposed by law, it is valid and never ceases to be such. Thus, as a will it is valid,

though later it may lose its efficacy. Tolentinos view is akin to that of Scaevola and Sanchez
Roman who both agree that loss of validity does not refer to a will revoked by subsequent valid
will for in that case there would be no intestate succession because of the existence of a second
valid will and because the first will is not invalidated by the second will but only made ineffective.
The view of Tolentino, Scaevola and Sanchez Roman that there would be no intestate
succession if another will subsequently revokes a valid will of the testator is not totally correct.
Because there may be instances where a
1st valid will be revoked by a 2nd valid will and yet the execution of the latter will result to
intestacy.
Example: 1985 the testator, who has no compulsory heir, instituted his friends A and B as his
only heirs. In 1999, the testator executed another will where he expressly revoked the institution
of A and B in his 1st will but in the said will he totally did not make any institution of heir. This is
an example of execution of a 2nd will expressly making the 1st will lose its efficacy and yet,
although the 2nd will is valid, it result to total intestacy. Thus, the interpretation of Tolentino,
Scaevola and Sanchez Roman on this matter is not totally correct.
Non-fulfillment of Condition. The condition referred to in Article 960 is suspensive and not
resolutory. Please note that the fulfillment of the suspensive condition gives rise to rights; its
non-fulfillment prevents the acquisition of such rights by the persons conditionally instituted.
Thus, in case of non-fulfillment of the suspensive condition attached to a conditional institution,
the same result to intestacy with respect to the property which should have passed to the heir
conditionally instituted.
Please also note that intestacy will not follow in case of predecease or repudiation if the
testator has provided for substitution or when there is a co-heir in whose favor the right of
accretion exists. For this matter, an absolute mastery of the right of accretion, when accretion is
proper, is indispensable.
Please also bear in mind that there are instances, other than those enumerated in Article 960
of the Civil Code, when intestacy takes place. Among the said instances are:
The happening of the resolutory condition, which sets aside the institution of the heir or legatee
or devisee and this gives rise to intestate succession;
Intestate succession also takes place upon the expiration of the term or period of the institution,
when the heir, or devisee or legatee, under Article 885, is instituted up to and until a day certain;
Noncompliance or the impossibility of complying with the will of the testator is another instance.
Art. 961. In default of testamentary heirs, the law vests the inheritance, in accordance with the
rules hereinafter set forth, in the legitimate and illegitimate relatives of the deceased, in the
surviving spouse, and the State.
NOTA BENE: The term In default of testamentary heirs means no heir was instituted by the
decedent in his will.

DISINHERITANCE OF INTESTATE HEIRS: The testator may validly exclude, by means of his
will, any intestate heir from the whole or part of the inheritance. Unlike the disinheritance of
compulsory heirs, this exclusion does not require any legal cause but depends solely upon the
will of the testator. It may be tacit, as when a voluntary heir is instituted, thus, excluding the
intestate heir. Or, it may be express and purely negative, as when the testator merely excludes
an intestate heir, wholly or partly, from the inheritance without instituting any heir. This is
possible only when the intent of the testator to exclude is indisputable.
Please also bear in mind that although a testator may exclude an intestate heir from the
inheritance, the STATE may not be so excluded by the testator without instituting a voluntary
heir because a person may not be totally succeeded to his property without a successor mortis
causa.
Also bear in mind that the effect of exclusion of an intestate heir is to make his share accrue
to the other heirs of the same degree. If the one excluded is the only one nearest in degree,
then those next in degree will succeed.
How do you distinguish then an intestate heir from a compulsory heir?

Art. 962. In every inheritance, the relative nearest in degree excludes the more distant ones,
saving the right of representation when it properly takes place.
Relatives in the same degree shall inherit in equal shares, subject to the provisions of article
1006 with respect to relatives of the full and half blood, and article 987, paragraph 2, concerning
division between the paternal and maternal lines. (921a)
RULE OF PROXIMITY: In intestate or legal succession, you must always remember this
cardinal rule. THE RELATIVES NEAREST IN DEGREE EXCLUDES THE MORE REMOTE.
Thus, if a relative of the first degree survives the decedent, the latters second degree relatives
cannot inherit. Therefore, a son excludes a grandson because the former is in the 1st degree
while the latter is in the second.
RULE OF PROXIMITY TAKES AN EXCEPTION WHEN RIGHT OF REPRESENTATION IS
PROPER: There is therefore no substitute for purposes of the bar for mastering the instances
and the rule on representation.
RULE OF PROXIMITY PREFERENCE AMONG LINES: The law calls first the descendants,
then the ascendants, and finally the collaterals. Thus, the general rule, that 1st the descendants,
then the ascendants and lastly the collaterals will apply to relatives within the same degree,
except in the case when the relatives are found in different lines, in which case, the order of
preference between lines must first be observed, and within each line, the rule on proximity
applies.

Article 962 is subject to the provisions of Article 1006 with respect to r

latives of the full and half blood and Article 987, paragraph 2, concerning division between the
paternal and maternal lines.
Article 987 and Article 1006 provide, thus:
Art. 987 In default of the father and mother, the ascendants nearest in degree shall inherit.
Should there be more than one of equal degree belonging to the same line they shall divide the
inheritance per capita; should they be of different lines but of equal degree, one-half shall go to
the paternal lines and the other half to the maternal ascendants. In each line the division shall
be made per capita."
Art. 1006. Should brothers and sisters of the full blood survive together with brothers and sisters
of the half blood, the former shall be entitled to a share double that of the latter
IN RESUME, TWO BASIC PRINCIPLES OF INTESTATE SUCCESSION MUST ALWAYS BE
BORNE IN MIND:
Nearer relative excludes farther relative, without prejudice to the right of representation and
also without prejudice to preference to lines.
In general, inheritance is in equal shares (be sure to know the exceptions)
The right of representation takes place in the direct descending line, but never in the
ascending line (Art. 972)
In the collateral line, the right of representation takes place only in favor of the children of
brothers or sisters, whether they be of full or half-blood (Art. 972)
Should brothers and sisters of the full blood survive together with brothers and sisters of the
half-blood, the former shall be entitled to a share double that of the latter (Art. 1006)
Should there be more than one ascendant of equal degree belonging to the same line they
shall divide the inheritance per capita; should they be of different lines but of equal degree onehalf shall go to the paternal and the other to the maternal ascendants. In each line the division
shall be made per capita (par. 2 Art. 987)
Nota Bene: The right to equal shares enunciated in Article 962 is what we call the Right to
Equal Division. Of the said rule, we have at least three exceptions, as follows:
(1) Division in the ascending line;
(2) Division between relatives of the full and half blood; and

(3)Division in cases of representation.

Subsection 1
RELATIONSHIP
Art. 963. Proximity of relationship is determined by the number of generations. Each
generation forms a degree. (915)

Art. 964. A series of degree forms a line, which may be either direct or collateral.
A direct line is that constituted by the series of degrees among ascendants and descendants.
A collateral line is that constituted by the series of degrees among persons who are not
ascendants and descendants, but who come from a common ancestor. (916a)
Art. 965. The direct line is either descending or ascending.
The former unites the head of the family with those who descend from him.
The latter binds a person with those from whom he descends. (917)

Art. 966. In the line, as many degree are counted as there are generations or persons,
excluding the progenitor.
In the direct line, ascent is made to the common ancestor. Thus, the child is one degree
removed from the parent, two from the grandfather, and three from the great-grandparent.
In the collateral line, ascent is made to the common ancestor and then descent is made to the
person with whom the computation is to be made. Thus, a person is two degrees removed from
his brother, three from his uncle, who is the brother of his father, four from his first cousin, and
so forth. (918a)

Art. 967. Full blood relationship is that existing between persons who have the same father
and the same mother.
Half blood relationship is that existing between persons who have the same father, but not the
same mother, or the same mother, but not the same father. (920a)

Art. 968. If there are several relatives of the same degree, and one or some of them are
unwilling or incapacitated to succeed, his portion shall accrue to the others of the same degree,
save the right of representation when it should take place. (22)
Nota Bene: Repudiation and incapacity of an heir: This article presupposes the case where
there are several relatives of the same degree and one or more of them repudiate their share or
are incapacitated to inherit. In such case the shares that would have pertained to those who
repudiated or are incapacitated do not pass to relatives of the next degree, but are retained by
the other relatives of the same degree through the right of accretion, with exception of the cases
where the right of representation obtains. Please note that the right of representing a living
person obtains only in cases of disinheritance and incapacity. Always bear in mind that that
when the fact which prevents a living person from succeeding is his repudiation of the
inheritance, he cannot be represented, thus, the right of accretion takes place with respect to his
share; if there are no other coheirs, the provisions of article 969 will apply.

Art. 969. If the inheritance should be repudiated by the nearest relative, should there be one
only, or by all the nearest relative called by law to succeed, should there be several, those of the
following degree shall inherit in their own right and cannot represent the person or persons
repudiating the inheritance. (923)
Nota Bene: Repudiation by Nearest Kin. Article 969 also deals with repudiation by an
intestate heir just like in Article 965. However, the situation in the said articles are different in
that Article 965 deals with a situation where only one or some of the several relatives of the
same degree repudiates the inheritance. While article 969 deals with a situation when there is
only one nearest relative who repudiate his inheritance or there are several nearest relative of
the same degree but all of them also repudiate their inheritance, leaving none in the same
degree to succeed. Under Article 969, it is clearly provided that those next in degree shall
inherit in their own right, thus, the right of representation does not obtain, in perfect harmony
with Article 977 which provides that heirs who repudiate may not be represented. Since the only
heir or all the heirs called by law to succeed the decedent repudiate the inheritance, so that
accretion is not
possible, and the right of representation not obtaining, it is but natural that the relatives of the
next degree should be called by law to inherit in their own right.
QUESTION:
Incapacity of Nearest Relatives: Article 969 does not provide for the case where the only heir or
all the heirs called by law to succeed the decedent are incapacitated; it deals only with
repudiation. What, then, would be the effect of such incapacity?
ANSWER:
The right of representation may or may not obtain. Should the incapacitated heir be a child or

descendant of the decedent, and he in turn has children or descendants, the latter may
represent the incapacitated heir. The same rule obtains when children or an incapacitated
brother or sister survive with uncles and aunts with whom they concur in succession. In all other
cases, no representation can obtain; the heirs next in degree shall succeed in their own right.

Subsection 2
RIGHT OF REPRESENTATION

Art. 970. Representation is a right created by fiction of law, by virtue of which the
representative is raised to the place and the degree of the person represented, and acquire the
rights which the latter would have if he were living or would have inherited. (924a)
Lately, you have been hearing from me the terms to inherit in their own right or shall inherit in
their own right. For a better understanding of the right of representation, emphasis must be
made in connection with the terms in their own rights and right of representation.
Legal heirs fall into two groups. Namely, those who inherit in their own right, and those who
inherit by the right of representation. Those who inherit in their own right are heirs as such and
there is no need to further elaborate since the term is self-explanatory. However, those who
inherit by the right of representation are the heirs who are not supposed to be entitled to an
inheritance because they concur with other relatives of the deceased much nearer in degree to
the latter, but because of the said right, by fiction of law, they are placed in the same degree as
that of the nearest.

EFFECTS OF REPRESENTATION. The right of representation has two main effects, as

follows:
1st: A relative of a remote degree of relationship is placed in the degree which entitles him to
inherit. Thus, in the succession to the grandfather, the son is the first degree, while the
grandson who is the child of another son who has predeceased the grandfather, is in the second
degree. Ordinarily, therefore, the son should exclude the grandson. The right of representation,
however, raises the grandson to a degree side by side with the son, thus, enabling the grandson
to succeed his grandfather in representation of his predeceased father.
2nd: The sole representative or the entire representative merely takes the place of the person
represented. They, therefore, can only inherit the portion which the person represented should
rightfully receive.
NOTA BENE: From the foregoing, we can make the following conclusions:

1. The person representing does not succeed the person represented but the deceased
person from whom the latter was supposed to inherit;
2. The son who repudiates his inheritance from his father does not lose the right to represent
the latter in the inheritance of his grandfather;
3. A great-grandson may be called to the inheritance of his great-grandfather even if the
grandfather should die before the great-grandson has been conceived;
4. A son who can not inherit from his father on the ground of unworthiness can still inherit
from his grandfather by representing the latter, provided he himself is not unworthy with regards
to the said grandfather;
Please note that:
The representative must be possessed of all the qualities necessary for the right to inherit; he
must not, therefore, be incapacitated or disinherited by the person to whom he succeeds.
The representative succeeds not only to the rights but also the obligations which are
transmissible.
You must always be reminded that in right of representation, the subrogation or the
representation obtains degree by degree, the inferior one representing the relative immediately
higher in degree. No jump is made. Thus, a son represents his father; the father the grandfather,
the grandfather the great-grandfather, and so on.
Please take note that the law created the right of representation for certain purposes and for
certain limited application. Thus, the provisions, therefore, creating this right must be strictly
interpreted and applied.
The right conferred by law in the right of representation is representation only with respect to
inheritance conferred by law. It takes place only in legal or intestate succession, and only with
respect to the legitime in testamentary succession. It does not take place with respect to what is
voluntarily given by the will.
REPRESENTATION BY ILLEGITIMATES:
It is generally said that representation takes place only in favor of legitimate descendants.
Under our present law, however, this rule cannot be taken without any qualification. Article 992
prevents intestate succession between an illegitimate child and the legitimate relatives of his
father or mother; or in other words, the law of succession has placed a legal barrier between the
illegitimate and legitimate members of the family.
Thus,

An illegitimate child cannot represent its father in the succession of the latters legitimate
father
However, please note very well that the law does not preclude the succession of an illegitimate
child to an illegitimate relative of his father or mother. In fact, there are provisions of the Civil
Code recognizing the right of representation by an illegitimate child, provided that the parent to
be represented is himself of illegitimate filiation. Thus, Article 902 provides that the rights of
illegitimate children to the legitime are transmitted upon their death to their descendants,
whether legitimate or illegitimate. And under Article 998, if the surviving spouse concurs with
illegitimate children, the spouse gets one-half of the intestate estate, and the other half goes to
the illegitimate children and their descendants, whether legitimate or illegitimate
Thus, WE CAN THEREFORE CONCLUDE:
That while a legitimate child can always represent, whether succeeding to a legitimate or an
illegitimate ascendant of its parent, the illegitimate child can represent only when the parent to
be represented is himself an illegitimate child of the decedent, In other words,
AN ILLEGITIMATE CHILD WILL BE ENTITLED TO REPRESENT WHEN HIS PARENTAL
LINE IS COMPLETELY ILLEGITIMATE; THAT IS, THE RESPRESENTATIVE, THE PERSON
TO BE REPRESENTED, AND THE DECEDENT ARE ALL RELATED TO EACH OTHER BY
ILLEGITIMATE FILIATION

Regarding adoption, you must always be guided by the cardinal principle in adoption that the
relationship between the adopter and the adopted is personal between them. Thus, the
descendants of an adopted child cannot represent the latter in the inheritance of the adopter.

Art. 971. The representative is called to the succession by the law and not by the person
represented. The representative does not succeed the person represented but the one whom
the person represented would have succeeded. (n)

Art. 972. The right of representation takes place in the direct descending line, but never in the
ascending.
In the collateral line, it takes place only in favor of the children of brothers or sisters, whether
they be of the full or half-blood. (925)
Representation in the Direct Line: The 1st paragraph of Article 972 is self-explanatory. The
right of representation takes place in the direct descending line, but never in the ascending. In
the descending line the right of representation is unlimited with regards to the descendants who
may succeed in representation of his direct ascendants. It obtains till the infinite.

Representation in the Collateral Line: In the collateral line the right of representation is
limited in favor only of the children of brothers or sisters of the deceased. Even then, it does not
always obtain, because article 975 authorizes this right only in case such children of brothers or
sisters concurs with uncles and aunts.
LINARAT y PAVIA vs. UGARTE
(5 Phil. 176)
FACTS: A niece who is a child of the sister of the deceased and a grandniece of the latter are
the only surviving relatives. The grandniece claims part of the inheritance by right of
representation.
HELD: In an intestate succession where a niece and a grandniece survive, the grandniece
cannot participate in the inheritance, because the former, being a nearer relative, the more
distant grandniece is excluded. In the collateral line the right of representation does not obtain
beyond the sons and daughters of the brothers and sisters of the decedent.
QUESTION: Can the children of the illegitimate brothers or sisters of the deceased represent
them?
ANSWER: Because the second paragraph of Article 945 of the Civil Code provides that, if the
surviving spouse of an illegitimate child should survive with brothers and sisters, nephews and
nieces, he or she shall inherit one-half of the estate, the latter the other half. From this, it follows
that the children of an illegitimate brother or sister of the deceased can represent their father or
mother, without prejudice to the provision of Article 992.

Art. 973. In order that representation may take place, it is necessary that the representative
himself be capable of succeeding the decedent. (n)
NOTA BENE: In representation, the representative inherits from the decedent and not from
the person he is representing. Hence, the representatives capacity and right to succeed must be
determined in relation to the decedent and not the person represented. Hence, even if he is
incapacitated to succeed, or has been disinherited by the person he represents, he is still
entitled to succeed, so long as he has the capacity to succeed the decedent.

Art. 974. Whenever there is succession by representation, the division of the estate shall be
per stirpes, in such manner that the representative or representatives shall not inherit more than
what the person they represent would inherit, if he were living or could inherit. (926a)
NOTA BENE: Division of the estate whenever the right of representation is proper. When the
right of representation obtains, the division of the estate shall be made per stirpes alone, or per

stirpes and per capita combined. In the division per capita the estate is divided into as many
equal parts as there are person to succeed. If there are four children, for instance, each will
receive per capita, one-fourth of the estate. Division per capita is the general rule. On the other
hand, division per stirpes is made when one sole descendant or a group of descendants
represent a person in intestate succession. In such case, the sole representative or group of
representatives are counted as one head. Thus, should a son and four children of another son
who has predeceased the decedent are among the surviving relatives of the latter, then the
estate will be divided per stirpes. It will be divided into two equal parts; the first half is given to
the surviving
son, and the other half is divided equally among the four grandchildren.

Art. 975. When children of one or more brothers or sisters of the deceased survive, they shall
inherit from the latter by representation, if they survive with their uncles or aunts. But if they
alone survive, they shall inherit in equal portions. (927)
NOTA BENE: Nephews and nieces shall inherit only by right of representation if they survive
with uncle and aunts. But if they survive alone, they shall divide the estate of their deceased
uncle or aunt equally because in such case, they shall be inheriting in their own right.

Art. 976. A person may represent him whose inheritance he has renounced. (928a)

Art. 977. Heirs who repudiate their share may not be represented. (929a)

For a better understanding, Articles 976 and 977 must be discussed together.
Article 976 contemplates a situation where the representative has repudiated the inheritance
of the person represented. Since he is in fact inheriting from the decedent and not from the
person he is representing, the repudiation of the inheritance of the latter by the representative is
of no moment. Thus, even if the representative has repudiated the inheritance of the person he
is supposed to represent, he is entitled to the inheritance of the decedent. In short and in other
words, Article 976tells us in representation, even a renouncer has a right to represent
Article 977 contemplates a situation where the person supposed to be represented had
renounced or repudiated his own inheritance from the decedent. In which case, the person
supposed to be represented cannot be represented. In short and in other words, Article 977 tells
us a renouncer cannot be represented.
THUS, IN RESUME, ARTICLES 976 AND 977 TELL US:
A RENOUNCER MAY REPRESENT BUT MAY NOT BE REPRESENTATED.

Section 2
ORDER OF INTESTATE SUCCESSION
Please note that there is now a marked difference between the provisions of the old Civil
Code and the new Civil Code with respect to the order of intestate succession. Under the old
code, the order of intestate succession was based on the principle of exclusion, meaning the
heirs higher in the order of succession excluded those who were lower in that order, except
when the latter were compulsory heirs they preserve their right to their legitime.
For example: Under the old Civil Code, since the legitimate children were highest in the order
of succession, they excluded the natural children and the surviving spouse as intestate heirs.
The natural children and the surviving spouse were only entitled to their legitime and the rest of
the estate went to the legitimate children.
Another example: Also under the old Civil Code, the brothers and sisters of the decedent is
higher in the order of succession than the surviving spouse of the latter. Thus, the former
excluded the latter, which receive the entire estate, subject only of the usufructuary right or
legitime of the surviving spouse.
Under the present code, although an order of succession is maintained, the rule of exclusion
is not applied with the same rigidity as under the old Code. The principle of concurrence now
qualifies or modifies the order of intestate succession. Thus, under the new Civil Code, when
the surviving spouse or the illegitimate children survive with legitimate children or parents of the
deceased, the former are no longer limited to their legitimes because in addition to their legitime
they have their own shares as intestate heirs. And when the surviving spouse concurs with
brothers and sisters of the deceased, there is no exclusion because they all concur and take
their respective shares in the intestate estate.
SUCCESSION TO LEGITIMATE CHILDREN: In general, and without prejudice to the
concurrent right of other heirs in the proper cases, the order of intestate succession to a
deceased who is a legitimate child of its parent is as follows: (1) Legitimate children and
descendants, (2) legitimate parents and ascendants, (3) illegitimate children, (4) the surviving
spouse, (5) collaterals up to the fifth degree, and (6) the state.
SUCCESSION TO ILLEGITIMATE CHILDREN: With respect to the intestate estate of a
deceased who is an illegitimate child of its parent, without prejudice to the rights of concurrent
heirs in the proper cases, the order of succession is as follows: (1) legitimate children and
descendants, (2) illegitimate children and descendants, (3) Illegitimate parent or parents, (4) the
surviving spouse, (5) brothers and sisters, nephews and nieces, and (6) the State.

RULE ON PARTIAL INTESTACY: Under the old Civil Code, when there is partial intestacy,
the amounts or portions given by will are simply deducted from the mass of the net hereditary
estate, and the remainder would all go to the intestate heirs. The rule was that of exclusion, and
so there was no conflict among intestate heirs of different grades. Under the present Code,
however, there is often concurrence between intestate heirs of different grades. Thus, the
surviving spouse concurs with legitimate children and descendants as well as with legitimate
parents and ascendants. The illegitimate children also concur with such legitimate heirs in the
direct line. The law defines the share of each grade of heirs in a succession where they concur.
In case of partial intestacy, where the testator has made certain dispositions of some amounts
or some portions of his property, questions arise on which grade of heir shall suffer the reduction
caused by the
testamentary disposition? Or will all of them bear the reduction resulting from the will of the
testator? Or will the distribution of shares defined by law of intestate succession apply only to
the remainder of the estate after deducting the amounts or portions disposed of by the testator?
The present Code is silent on these matters. We cannot apply the old rule of exclusion
embodied in the old Civil Code because the Code Commission had already abandoned it by
adopting the new rule of concurrence of intestate heirs. Thus, despite the silence of the new
Code on the matter, it is now impossible to apply to the new situation of concurring intestate
heirs the rule of the old Civil Code that the amounts or portions disposed of by will be simply
deducted from the state, and the balance be given to the intestate heirs who exclude others of
lower grade in the order of succession. Some intestate heirs are also compulsory heir; to apply
the rule of the old Civil
code will in many cases impair their legitimes.
Thus, faced with this void in the present Code, it will be necessary to deduce a rule from the
express provisions of the law and from universally accepted principles in succession. Please
always bear in mind that the will of the testator is superior to the laws of intestacy. Thus, the
shares of intestate heirs, as defined by law, must yield to the express will of the testator in the
form of devises, legacies and other testamentary dispositions. But it must also be remembered
that the will of the testator cannot prevail over the express provisions of law on legitimes; in
other words, the testamentary dispositions cannot impair the legitimes of the compulsory heirs.
From this, we can conclude that in partial intestacy, the testamentary disposition can reduce the
shares of intestate heirs, provided that their legitimes, if they are compulsory heirs, are not
impaired. More specifically
1. The law of legitimes must be brought into operation in partial intestacy, because the
testamentary dispositions can affect only the disposable portion but never the legitimes.
2. If among concurring intestate heirs there are compulsory heirs, whose legal or intestate
portions exceed their respective legitimes, then the amount of testamentary disposition must be
deducted from the disposable portion, to be borne by all the intestate heirs in the proportions
that they are entitled to receive from such disposable portion as intestate heirs.
3. If legal or intestate share of a compulsory heir is equal to his legitime, then the amount of

testamentary disposition must be deducted only from the legal or intestate shares of the others,
in the proportion stated above.
4. If the testamentary dispositions consume the entire disposable portion, then the intestate
heirs who are compulsory heirs will get only their legitimes, and those who are not compulsory
heirs will get nothing.
The above conclusions are the necessary and logical consequence of basic principle of
succession applied to the system of concurrence of intestate heirs. In the legal or intestate
shares of compulsory heirs have been merged their legitimes. The legitime goes to the
compulsory heirs by operation of law, whether the testator likes it or not because he cannot
tamper with it. If the instate share is equal only to the legitime, it cannot be affected or reduced
by the testamentary dispositions. If the testamentary disposition exceeds the legitime, then the
excess goes to the intestate heirs by the presumed will of the deceased. While the testator
cannot reduce the legitime, nevertheless, he can dispose that part of his estate in excess
thereof. And since the express will of the testator must prevail over his presumed will, the
excess over the legitime must yield to the and suffer reduction from the testamentary
dispositions But the different intestate
heirs may receive varying portions through the presumed will of the decedent; hence these
portions must suffer pro rata the reduction, caused by the express will of the testator. It would do
violence to the presumed will of the deceased to reduce the portions of the intestate heirs in
excess of the legitime in any other proportion.

Subsection 1
DESCENDING DIRECT LINE

Art. 978. Succession pertains, in the first place, to the descending direct line. (30)

Art. 979. Legitimate children and their descendant succeed the parents and other
ascendants, without distinction as to sex, age, and even if they should come from different
marriages.
An adopted child succeeds to the property of the adopting parents in the same manner as a
legitimate child. (931a)
Please note that the line referred to in Article 978 is the direct descending line and it is
qualified further by Article 979 as legitimate line only because the said article uses the phrase
legitimate children and their descendants. The term legitimate children embrace those children
legitimated by subsequent marriage, as the term is known in the Civil Code. However, the
question may be asked: Are children born and conceived prior to the marriage of their parents

who have no impediment to marry each other are deemed included in the term legitimate
children if the marriage of their parents was solemnized during the effectivity of the Family
Code? Will such children also be included in the term legitimate children if they were conceived
and born during the effectivity of the Family Code?
Please note with emphasis that the rule enunciated in Article 978 presupposes that there are
no concurring intestate heirs. The rights of such heirs should therefore, qualify it. In other words,
the descending direct line does not take real precedence over illegitimate children and the
surviving spouse. It takes precedence only over the direct ascending line, the collateral
relatives, and the State.
Rule in case of Adopted Children: Under the second paragraph of Article 979, an adopted
child succeeds in the same manner as a legitimate child. This reiterates the rule in Article 341,
paragraph (3), under which the adopted child is a legal heir of the adopter. But please note the
provision of Article 343 which provides, if the adopter is survived by legitimate parents and
ascendants and by an adopted person, the latter shall not have more successional rights than
an acknowledge natural child. Article 343 should be considered as an exception to the general
rule established in the second paragraph of Article 979 and in Article 341, because a particular
or special provision controls a general provision.
It must also be noted that Article 341 and 343 of the Civil Code have been considered omitted
by repeal by the Family Code. Tolentino is of the view that the adopted child excludes the
parents and ascendants of the adopter because of the provisions of Article 189 of the Family
Code that the adopted shall be deemed to be a legitimate child of the adopters. Thus, according
to him, if legitimate parents and ascendants, and the adopted child survive the adopter, the
adopted child would now exclude the parents and ascendants, in the same manner that a
legitimate child of the adopter excludes them. This representation does not fully subscribe to the
this view because it will deny parents and ascendants their legitime by simply adopting a child,
thus, in effect, giving to a person the right to deny his parent and ascendants their right to their
legitime without necessarily disinheriting them in accordance with law. The law guarantees the
legitime of the
legitimate parents and ascendants and even the testator cannot tamper with it. Thus, with or
without a will, a decedent cannot deny to his legitimate parent and ascendants their legitime.
But what about if a person has only illegitimate children and still have a young and strong
parent. Of course he cannot disinherit his parents in the absence of a valid ground. Any
provisions in his will to the effect that he is giving his entire estate to his illegitimate children will
not prejudice the legitime of his parents or ascendants. If we will agree to the view of Tolentino,
then all that person has to do is to adopt his illegitimate children. Thus, in effect denying to his
parents their legitime that he is not supposed to tamper with by direct provision of the law. If the
law on intestacy is inferior to the express will of the decedent, and the latter cannot prevail over
the law guaranteeing the legitime of the legitimate parent of the adopter, it follows
that the adoption of an illegitimate child or any other person for that matter shall not have any
effect on the legitime of the legitimate parents of the adopter.

It is therefore my considered view that if an adopted child and legitimate parents or

ascendants survive the deceased the former will not exclude the latter. It is also submitted that
under such circumstance, the division of the estate shall be fifty-fifty between the parents or
ascendants and the adopted child. If they both concur with the surviving wife, then the share of
the wife shall be deducted from their respective shares. This view is based on justice and equity
and by applying in analogy the provisions of Article 991 in the absence of an express provision
of law and in accordance with Article 9 of the Civil Code. This view was made not withstanding
the provisions of Republic Act 8552.

Art. 980. The children of the deceased shall always inherit from him in their own right, dividing
the inheritance in equal shares. (932)
This article is self-explanatory.
Art. 981. Should Children of the deceased and descendants of other children who are dead,
survive, the former shall inherit in their own right, and the latter by right of representation. (934a)
This is also self-explanatory.
Art. 982. The grandchildren and other descendants shall inherit by right of representation, and if
any one of them should have died, leaving several heirs, the portion pertaining to him shall be
divided among the latter in equal portions. (933)
Article 982 contemplates a situation where the survivors are all grandchildren and other
descendants of the deceased. In such cases, the grandchildren and other descendants inherit
by right of representation. Thus, the division of the estate shall be per stirpes defending on the
number of children that predeceased the decedent. Of course the child that predeceased the
decedent should have a child of his own otherwise, he will just simply be disregarded in the
division of the state because there will be nobody to represent him.
Please take note that Articles 981 and 982 refers exclusively to representation resulting to
predecease. There are other provisions of the Code that refer specifically to representation
resulting from incapacity or disinheritance and they should not be confused with articles 981 and
982.

Art. 983. If illegitimate children survive with legitimate children, the shares of the former shall be
in the proportions prescribed by article 895. (n)
This article contemplates a situation where both illegitimate and legitimate children survive
the decedent. The division of the intestate estate shall be in the same proportion provided for in
article 895 as modified by the Family Code.

According to Tolentino, the legitimes of the legitimate children and the illegitimate children
must first be determined. Thereafter, the remainder, if any, shall be divided in the proportion
prescribed in article 985. Thus, the legitime of each illegitimate child is one-half of the legitime of
each legitimate child provided that the legitime of the later shall not be prejudiced. If the
remainder of the estate after deducting the legitime of the legitimate children is not enough to
cover the legitime of all the illegitimate children, then the remainder or the free portion shall be
divided equally between them.
In Case of Partial Intestacy: If the deceased bequeaths any amount or portion of his property,
the testamentary provision should be carried into effect in so far as it does not impair the
legitimes of compulsory heirs. In case of partial intestacy, Article 960, paragraph (2), provides
that legal succession shall take place only with respect to the property of which the testator has
not disposed. This means that after deducting the amounts or portions disposed of by will, the
remainder of the estate is the property which shall be distributed in the proportions prescribed in
article 895. In no case, however, should the legitimes be impaired.

Art. 984. In case of the death of an adopted child, leaving no children or descendants, his
parents and relatives by consanguinity and not by adoption shall be his legal heirs. (n)
Please take note that Article 984 was already repealed by the Family Code and the latter was
modified accordingly by Republic Act 8552, entitled, An Act Establishing the Rules and Policies
in domestic Adoption of Filipino Children, particularly Article V, Sec. 18 thereof.
Art. 190 of the Family Code, reads as follows:

Art. 190. Legal or intestate succession to the estate of the adopted shall be governed by
the following rules:
(1) Legitimate and illegitimate children and descendants and the surviving spouse of the
adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate
succession;
(2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the adopted
concur with the adopters, they shall divide the entire estate, one-half to be inherited by the
parents or ascendants and the other half, by the adopter;
(3) When the surviving spouse or the illegitimate children of the adopted concur with the
adopters, they shall divide the entire estate in equal shares, one-half to be inherited by the
spouse or the illegitimate children of the adopted and the other half, by the adopters;
(4) When the adopters concur with a the illegitimate children and the surviving spouse of the
adopted, they shall divide the entire estate in equal shares, one-third to be inherited by the

illegitimate children, one-third by the surviving spouse, and one-third by the adopters;
(5) When only the adopters survive, they shall inherit the entire estate; and
(6) When only collateral blood relatives of the adopted survive, then the ordinary rules of legal or
intestate succession shall apply
Section 18 of Article V of Republic Act 8552, reads as follows:
SEC. 18. Succession. In legal and intestate succession, the adopter(s) and the adoptee
shall have reciprocal rights of succession without distinction from legitimate filiation. However, if
the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession
shall govern.
It is submitted that Sec. 18 of Republic Act 8552 did not amend or repeal the provisions of
Article 190 of the Family Code because of the vagueness of the former. At the most Sec. 18 of
R.A. 8552 merely galvanized the provisions of paragraph (2) of Article 190 of the Family Code
by stating that the adopter(s) and the adopted shall have reciprocal rights of succession without
distinction from legitimate filiation. Said law does not take away from the natural parents of the
adoptee their right to inherit from the latter.

Subsection 2
ASCENDING DIRECT LINE
Art. 985. In default of legitimate children and descendants of the deceased, his parents and
ascendants shall inherit from him, to the exclusion of collateral relatives. (935a)
This article is self-explanatory and needs no further discussion, except, that the ascendants
called by law are the legitimate ones; the succession of natural parents is governed by Articles
993 and 994.

Art. 986. The father and mother, if living, shall inherit in equal shares.
Should only one of them survive, he or she shall succeed to the entire estate of the child.
(936)
The first paragraph of this article is self-explanatory. The 2nd paragraph tells us that if only
the father or the mother survives the decedent, the survivor shall be entitled to the entire estate.
The parents of the predeceased shall not inherit because there is no right of representation in
the ascending line.

Art. 987. In default of the father and mother, the ascendants nearest in degree shall inherit.
Should there be more than one of equal degree belonging to the same line they shall divide
the inheritance per capita; should they be of different lines but of equal degree, one-half shall go
to the paternal and the other half to the maternal ascendants. In each line, the division shall be
per capita.
Please take note that when the decedent dies without children and descendants, and his
parents have predeceased him, the grandparents succeeds, not by right of representation, but
in their own right. The division of the estate is by line and per capita within each line. You must
always take note of the rule of proximity. If all ascendants in the nearest degree are in a single
line, nothing goes to the ascendants of a further degree belonging to the other line. It is only
when the ascendants of different lines are of the same degree that there is a division by lines.

Subsection 3
ILLEGITIMATE CHILDREN
Art. 988. In the absence of legitimate descendants or ascendants, the illegitimate children
shall succeed to the entire estate of the deceased. (939a)
Please note that the succession of the illegitimate children to the entire estate under article
988, in the absence of legitimate descendants or ascendants, presupposes that there are no
concurring intestate heirs. Thus, when the surviving spouse concurs with the illegitimate
children, the latter get only one-half of the estate, because the other goes to the surviving
spouse as provided in Article 998.
The term illegitimate children include all children born out of wedlock. Please note that the
under the Family Code there now only one kind of illegitimate children. Those that are born out
of wedlock. The said Code has abolished the distinction made by the Civil Code between
recognized natural children, natural children by legal fiction and other illegitimate children.
Therefore, all illegitimate children divide the intestate estate equally.

Art. 989. If, together with illegitimate children, there should survive descendants of another
illegitimate child who is dead, the former shall succeed in their own right and the latter by the
right of representation. (940a)
The situation contemplated by Article 989 is when a deceased person has illegitimate children
but one or more said children have predeceased the former. Upon the death of the illegitimate
child, his right to succeed shall be transmitted to his descendants, who shall inherit by right of
representation from their deceased grandparent.
over the express provisions of law on legitimes; in other words, the testamentary dispositions

cannot impair the legitimes of the compulsory heirs. From this, we can conclude that in partial
intestacy, the testamentary disposition can reduce the shares of intestate heirs, provided that
their legitimes, if they are compulsory heirs, are not impaired. More specifically
1. The law of legitimes must be brought into operation in partial intestacy, because the
testamentary dispositions can affect only the disposable portion but never the legitimes.
2. If among concurring intestate heirs there are compulsory heirs, whose legal or intestate
portions exceed their respective legitimes, then the amount of testamentary disposition must be
deducted from the disposable portion, to be borne by all the intestate heirs in the proportions
that they are entitled to receive from such disposable portion as intestate heirs.
3. If legal or intestate share of a compulsory heir is equal to his legitime, then the amount of
testamentary disposition must be deducted only from the legal or intestate shares of the others,
in the proportion stated above.
4. If the testamentary dispositions consume the entire disposable portion, then the intestate
heirs who are compulsory heirs will get only their legitimes, and those who are not compulsory
heirs will get nothing.
The above conclusions are the necessary and logical consequence of basic principle of
succession applied to the system of concurrence of intestate heirs. In the legal or intestate
shares of compulsory heirs have been merged their legitimes. The legitime goes to the
compulsory heirs by operation of law, whether the testator likes it or not because he cannot
tamper with it. If the instate share is equal only to the legitime, it cannot be affected or reduced
by the testamentary dispositions. If the testamentary disposition exceeds the legitime, then the
excess goes to the intestate heirs by the presumed will of the deceased. While the testator
cannot reduce the legitime, nevertheless, he can dispose that part of his estate in excess
thereof. And since the express will of the testator must prevail over his presumed will, the
excess over the legitime must yield to the and suffer reduction from the testamentary
dispositions But the different intestate
heirs may receive varying portions through the presumed will of the decedent; hence these
portions must suffer pro rata the reduction, caused by the express will of the testator. It would do
violence to the presumed will of the deceased to reduce the portions of the intestate heirs in
excess of the legitime in any other proportion.

Subsection 1
DESCENDING DIRECT LINE

Art. 978. Succession pertains, in the first place, to the descending direct line. (30)

Art. 979. Legitimate children and their descendant succeed the parents and other
ascendants, without distinction as to sex, age, and even if they should come from different
marriages.
An adopted child succeeds to the property of the adopting parents in the same manner as a
legitimate child. (931a)
Please note that the line referred to in Article 978 is the direct descending line and it is
qualified further by Article 979 as legitimate line only because the said article uses the phrase
legitimate children and their descendants. The term legitimate children embrace those children
legitimated by subsequent marriage, as the term is known in the Civil Code. However, the
question may be asked: Are children born and conceived prior to the marriage of their parents
who have no impediment to marry each other are deemed included in the term legitimate
children if the marriage of their parents was solemnized during the effectivity of the Family
Code? Will such children also be included in the term legitimate children if they were conceived
and born during the effectivity of the Family Code?
Please note with emphasis that the rule enunciated in Article 978 presupposes that there are
no concurring intestate heirs. The rights of such heirs should therefore, qualify it. In other words,
the descending direct line does not take real precedence over illegitimate children and the
surviving spouse. It takes precedence only over the direct ascending line, the collateral
relatives, and the State.
Rule in case of Adopted Children: Under the second paragraph of Article 979, an adopted
child succeeds in the same manner as a legitimate child. This reiterates the rule in Article 341,
paragraph (3), under which the adopted child is a legal heir of the adopter. But please note the
provision of Article 343 which provides, if the adopter is survived by legitimate parents and
ascendants and by an adopted person, the latter shall not have more successional rights than
an acknowledge natural child. Article 343 should be considered as an exception to the general
rule established in the second paragraph of Article 979 and in Article 341, because a particular
or special provision controls a general provision.
It must also be noted that Article 341 and 343 of the Civil Code have been considered omitted
by repeal by the Family Code. Tolentino is of the view that the adopted child excludes the
parents and ascendants of the adopter because of the provisions of Article 189 of the Family
Code that the adopted shall be deemed to be a legitimate child of the adopters. Thus, according
to him, if legitimate parents and ascendants, and the adopted child survive the adopter, the
adopted child would now exclude the parents and ascendants, in the same manner that a
legitimate child of the adopter excludes them. This representation does not fully subscribe to the
this view because it will deny parents and ascendants their legitime by simply adopting a child,
thus, in effect, giving to a person the right to deny his parent and ascendants their right to their
legitime without necessarily disinheriting them in accordance with law. The law guarantees the
legitime of the

legitimate parents and ascendants and even the testator cannot tamper with it. Thus, with or
without a will, a decedent cannot deny to his legitimate parent and ascendants their legitime.
But what about if a person has only illegitimate children and still have a young and strong
parent. Of course he cannot disinherit his parents in the absence of a valid ground. Any
provisions in his will to the effect that he is giving his entire estate to his illegitimate children will
not prejudice the legitime of his parents or ascendants. If we will agree to the view of Tolentino,
then all that person has to do is to adopt his illegitimate children. Thus, in effect denying to his
parents their legitime that he is not supposed to tamper with by direct provision of the law. If the
law on intestacy is inferior to the express will of the decedent, and the latter cannot prevail over
the law guaranteeing the legitime of the legitimate parent of the adopter, it follows
that the adoption of an illegitimate child or any other person for that matter shall not have any
effect on the legitime of the legitimate parents of the adopter.
It is therefore my considered view that if an adopted child and legitimate parents or
ascendants survive the deceased the former will not exclude the latter. It is also submitted that
under such circumstance, the division of the estate shall be fifty-fifty between the parents or
ascendants and the adopted child. If they both concur with the surviving wife, then the share of
the wife shall be deducted from their respective shares. This view is based on justice and equity
and by applying in analogy the provisions of Article 991 in the absence of an express provision
of law and in accordance with Article 9 of the Civil Code. This view was made not withstanding
the provisions of Republic Act 8552.

Art. 980. The children of the deceased shall always inherit from him in their own right, dividing
the inheritance in equal shares. (932)
This article is self-explanatory.
Art. 981. Should Children of the deceased and descendants of other children who are dead,
survive, the former shall inherit in their own right, and the latter by right of representation. (934a)
This is also self-explanatory.
Art. 982. The grandchildren and other descendants shall inherit by right of representation, and if
any one of them should have died, leaving several heirs, the portion pertaining to him shall be
divided among the latter in equal portions. (933)
Article 982 contemplates a situation where the survivors are all grandchildren and other
descendants of the deceased. In such cases, the grandchildren and other descendants inherit
by right of representation. Thus, the division of the estate shall be per stirpes defending on the
number of children that predeceased the decedent. Of course the child that predeceased the
decedent should have a child of his own otherwise, he will just simply be disregarded in the
division of the state because there will be nobody to represent him.

Please take note that Articles 981 and 982 refers exclusively to representation resulting to
predecease. There are other provisions of the Code that refer specifically to representation
resulting from incapacity or disinheritance and they should not be confused with articles 981 and
982.

Art. 983. If illegitimate children survive with legitimate children, the shares of the former shall be
in the proportions prescribed by article 895. (n)
This article contemplates a situation where both illegitimate and legitimate children survive
the decedent. The division of the intestate estate shall be in the same proportion provided for in
article 895 as modified by the Family Code.
According to Tolentino, the legitimes of the legitimate children and the illegitimate children
must first be determined. Thereafter, the remainder, if any, shall be divided in the proportion
prescribed in article 985. Thus, the legitime of each illegitimate child is one-half of the legitime of
each legitimate child provided that the legitime of the later shall not be prejudiced. If the
remainder of the estate after deducting the legitime of the legitimate children is not enough to
cover the legitime of all the illegitimate children, then the remainder or the free portion shall be
divided equally between them.
In Case of Partial Intestacy: If the deceased bequeaths any amount or portion of his property,
the testamentary provision should be carried into effect in so far as it does not impair the
legitimes of compulsory heirs. In case of partial intestacy, Article 960, paragraph (2), provides
that legal succession shall take place only with respect to the property of which the testator has
not disposed. This means that after deducting the amounts or portions disposed of by will, the
remainder of the estate is the property which shall be distributed in the proportions prescribed in
article 895. In no case, however, should the legitimes be impaired.

Art. 984. In case of the death of an adopted child, leaving no children or descendants, his
parents and relatives by consanguinity and not by adoption shall be his legal heirs. (n)
Please take note that Article 984 was already repealed by the Family Code and the latter was
modified accordingly by Republic Act 8552, entitled, An Act Establishing the Rules and Policies
in domestic Adoption of Filipino Children, particularly Article V, Sec. 18 thereof.
Art. 190 of the Family Code, reads as follows:

Art. 190. Legal or intestate succession to the estate of the adopted shall be governed by
the following rules:
(1) Legitimate and illegitimate children and descendants and the surviving spouse of the

adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate
succession;
(2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the adopted
concur with the adopters, they shall divide the entire estate, one-half to be inherited by the
parents or ascendants and the other half, by the adopter;
(3) When the surviving spouse or the illegitimate children of the adopted concur with the
adopters, they shall divide the entire estate in equal shares, one-half to be inherited by the
spouse or the illegitimate children of the adopted and the other half, by the adopters;
(4) When the adopters concur with a the illegitimate children and the surviving spouse of the
adopted, they shall divide the entire estate in equal shares, one-third to be inherited by the
illegitimate children, one-third by the surviving spouse, and one-third by the adopters;
(5) When only the adopters survive, they shall inherit the entire estate; and
(6) When only collateral blood relatives of the adopted survive, then the ordinary rules of legal or
intestate succession shall apply
Section 18 of Article V of Republic Act 8552, reads as follows:
SEC. 18. Succession. In legal and intestate succession, the adopter(s) and the adoptee
shall have reciprocal rights of succession without distinction from legitimate filiation. However, if
the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession
shall govern.
It is submitted that Sec. 18 of Republic Act 8552 did not amend or repeal the provisions of
Article 190 of the Family Code because of the vagueness of the former. At the most Sec. 18 of
R.A. 8552 merely galvanized the provisions of paragraph (2) of Article 190 of the Family Code
by stating that the adopter(s) and the adopted shall have reciprocal rights of succession without
distinction from legitimate filiation. Said law does not take away from the natural parents of the
adoptee their right to inherit from the latter.

Subsection 2
ASCENDING DIRECT LINE
Art. 985. In default of legitimate children and descendants of the deceased, his parents and
ascendants shall inherit from him, to the exclusion of collateral relatives. (935a)
This article is self-explanatory and needs no further discussion, except, that the ascendants
called by law are the legitimate ones; the succession of natural parents is governed by Articles

993 and 994.

Art. 986. The father and mother, if living, shall inherit in equal shares.
Should only one of them survive, he or she shall succeed to the entire estate of the child.
(936)
The first paragraph of this article is self-explanatory. The 2nd paragraph tells us that if only
the father or the mother survives the decedent, the survivor shall be entitled to the entire estate.
The parents of the predeceased shall not inherit because there is no right of representation in
the ascending line.
Art. 987. In default of the father and mother, the ascendants nearest in degree shall inherit.
Should there be more than one of equal degree belonging to the same line they shall divide
the inheritance per capita; should they be of different lines but of equal degree, one-half shall go
to the paternal and the other half to the maternal ascendants. In each line, the division shall be
per capita.
Please take note that when the decedent dies without children and descendants, and his
parents have predeceased him, the grandparents succeeds, not by right of representation, but
in their own right. The division of the estate is by line and per capita within each line. You must
always take note of the rule of proximity. If all ascendants in the nearest degree are in a single
line, nothing goes to the ascendants of a further degree belonging to the other line. It is only
when the ascendants of different lines are of the same degree that there is a division by lines.

Subsection 3
ILLEGITIMATE CHILDREN
Art. 988. In the absence of legitimate descendants or ascendants, the illegitimate children
shall succeed to the entire estate of the deceased. (939a)
Please note that the succession of the illegitimate children to the entire estate under article
988, in the absence of legitimate descendants or ascendants, presupposes that there are no
concurring intestate heirs. Thus, when the surviving spouse concurs with the illegitimate
children, the latter get only one-half of the estate, because the other goes to the surviving
spouse as provided in Article 998.
The term illegitimate children include all children born out of wedlock. Please note that the
under the Family Code there now only one kind of illegitimate children. Those that are born out
of wedlock. The said Code has abolished the distinction made by the Civil Code between

recognized natural children, natural children by legal fiction and other illegitimate children.
Therefore, all illegitimate children divide the intestate estate equally.

Art. 989. If, together with illegitimate children, there should survive descendants of another
illegitimate child who is dead, the former shall succeed in their own right and the latter by the
right of representation. (940a)
The situation contemplated by Article 989 is when a deceased person has illegitimate children
but one or more said children have predeceased the former. Upon the death of the illegitimate
child, his right to succeed shall be transmitted to his descendants, who shall inherit by right of
representation from their deceased grandparent.

Art. 990. The hereditary rights granted by the two preceding articles to illegitimate children
shall be transmitted upon their death to their descendants, who shall inherit by right of
representation from their deceased grandparent. (941a)
Please note that as we have already discussed in Article 970, illegitimate children can represent
their parents in the succession of their grandparent provided that their illegitimate parent is also
of illegitimate filiation with the deceased grandparent

Art. 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance
with them, taking one-half of the estate, whatever be the number of the ascendants or of the
illegitimate children (942, 841a)
Please note that in the absence of a will, Article 991 is self-explanatory. Thus, in such case,
the intestate estate shall be divided equally between the legitimate ascendants and the
illegitimate children, without regard to the number of legitimate ascendant and illegitimate
children. However, problem may arise when there is partial intestacy.
Sample Problem Involving Partial Intestacy:
The decedent left an estate of P100 Thousand. He is survived by his parents and illegitimate
children. He however, left a will where he gave P10 Thousand to a friend.
Solution: Determine first how much of the disposable portion goes by intestacy to the
concurring heirs, and deduct the legacy from such portion, to be borne proportionately by the
concurring heirs. In this case, the parents get by intestacy no more than their legitime of onehalf of the estate. Hence, the entire disposable portion goes by intestacy to the illegitimate
children. They are the only ones a who should suffer the burden of the legacy. This means that
the parents get their share of P50 thousand; the legatee gets P10 thousand and the balance of
the estate or P40 thousand goes to the illegitimate children. Please take note that the legacy of

P10 thousand must be given effect because it does not prejudice the legitime of both the
legitimate parent and the illegitimate children. The legitime of the legitimate parent being P50
thousand or one-half of the hereditary estate and that of the illegitimate children is one-fourth of
the said estate.

Art. 992. An illegitimate child has no right to inherit ab intestado from the legitimate children
and relatives of his father or mother; nor shall such children or relatives inherit in the same
manner from the illegitimate child. (943a)
Please always remember the cardinal rule in intestate succession enunciated in article 992 of
the Civil Code (The barrier between the legitimate family and the illegitimate family of the
deceased whose intestate estate is under consideration) The prohibition to succeed by
intestacy between the illegitimate child and the legitimate children and relatives of the father or
mother. The tie of illegitimacy exists only between the illegitimate child and his illegitimate
parents. In the law of intestate succession, the illegitimate child is not a relative of the legitimate
children and relatives of his father or mother. They may have a natural tie of blood, but this tie is
not recognized by law. Between the illegitimate family and the illegitimate family there is
presumed to be an intervening antagonism and incompatibility. This is the basis which the law
has taken into consideration for in article 992. Please take note of the ruling of the Supreme
Court in
Leonardo vs. Court of Appeals, 120 SCRA 890. Thus, An alleged grandchild born outside
wedlock cannot, by right of representation, claim a share of an estate left by an alleged
deceased grandparent.
Please take note of the disqualification to inherit: The deprivation of the right to inherit
extends to the legitimate descendants of the illegitimate child, and is reciprocal, that is, the
person whom the illegitimate child cannot succeed is also disqualified to succeed him. Hence,
relatives on the legitimate line have no right to inherit ab intestado from an illegitimate relative,
and vice versa.

Art. 993. If an illegitimate child should die without issue, either legitimate or illegitimate, his
father or mother shall succeed to his entire estate; and if the childs filiation is duly proved as to
both parents, who are both living, they shall inherit from him share and share alike. (944a)
Art. 994. In default of the father or mother, an illegitimate child shall be succeeded by his or
her surviving spouse, who shall be entitled to the entire estate.
If the widow or widower should survive with brothers and sisters, nephews and nieces, she or
he shall inherit one-half of the estate, and the latter the other half. (945a)
Please note that before the illegitimate father or mother of the decedent could inherit from the
later by intestate succession their filiation with the decedent should first be proved.

Articles 993 and 994 cover the case of intestate succession to a decedent who is an
illegitimate child. However, the said articles do not completely determine the order of succession
or the shares of the different heirs when they concur. It is necessary to resort to inference and to
other provisions of the Code to supplement the said articles. In this light, the order of succession
may be determines as follows:
1ST: LEGITIMATE DESCENDANTS: The legitimate children and descendants of a person
who is an illegitimate child are preferred over other intestate heirs, without prejudice to the right
of concurrence of illegitimate children and the surviving spouse;
2nd: ILLEGITIMATE DESCENDANTS: Ordinarily the legitimate ascendants succeed to the
inheritance when there are no legitimate children or descendants. This is the case where the
decedent is a person of legitimate origin. When the decedent is, however, an illegitimate child,
he has no legitimate father or mother. His parents must necessarily be illegitimate. In this case,
the law makes a change. The ascendants in case the decedent is an illegitimate child must give
way to the illegitimate issues of the illegitimate child. The second to be called then are the
illegitimate children and their descendants, whether legitimate or illegitimate. Thus, in the
absence of legitimate children and descendants, they succeed to the entire estate, without
prejudice to the concurrent right of the surviving spouse.
3rd: ILLEGITIMATE PARENTS: In the absence of children and descendants, legitimate or
illegitimate, the third in the order of succession to the estate of a child who is illegitimate is his
parents or parents. But in order that a parent of an illegitimate child may be entitled to succeed
the latter, his paternity or her maternity must be established. If both parents survive and are
entitled to succeed, they divide the estate share and share alike; but if only one entitled to
succeed survives, he gets the entire estate; if both are dead, their ascendants cannot succeed
the illegitimate child, because in law the latter has no ascendants except the parent or parents
who have recognized it or whose paternity or maternity has been proved.
QUESTION: How about if the illegitimate parent survive with the surviving spouse of the
decedent. How will the intestate estate be divided?
Although the Civil Code is silent if the surviving spouse concur with the illegitimate parent of
deceased, however, we can apply by analogy the provisions of Article 997 which provides for
the share of the surviving spouse concurring with the legitimate parents of a deceased person;
the surviving spouse gets one-half of the intestate estate and the legitimate parents or
ascendants gets the other half. If that is the share of the surviving spouse concurring with
legitimate parents of a deceased person, certainly such share cannot be less when he concurs
with illegitimate parents. In other words, if the legitimate parents get only one-half of the
intestate estate when concurring with the surviving spouse of the decedent, the illegitimate
parents, who should have less rights, cannot be entitled to more than one-half in the same
situation. If the effect therefore is that, the surviving spouse should not be limited to only to his
or her legitime which is

one-fourth of the hereditary estate but one-half thereof.

4th: SURVIVING SPOUSE: In default of the foregoing heirs, the surviving spouse shall
inherit the entire estate. But if he concurs with brothers and sisters, and nephews and nieces of
the deceased, he or she will get one-half of the estate, and the latter the other half.
5th BROTHERS, SISTERS, NEPHEWS and NIECES: Although it may appear that brothers
and sisters, nephews and nieces of a deceased illegitimate son shall to succeed ab intestado if
they concur with the surviving spouse, however, even without the surviving spouse they can
succeed to the intestate estate of a deceased illegitimate child provided that their relation to the
latter is also illegitimate this conclusion is drawn from the fact that if they concur with the
surviving spouse they get one-half of the estate of the deceased hence, if they alone survive the
deceased illegitimate child they should be entitled to the whole estate. To conclude otherwise
shall be absurd and illogical. They are therefore, 5th in the order of succession to the estate of
an illegitimate child.
6th: In the absence of the persons called upon in the foregoing order in the succession of an
illegitimate child, the State steps in and inherit the estate of a deceased illegitimate child in the
same manner that it does in the succession of a legitimate child. For the State to be entitled to
the estate of the decedent it must institute the corresponding proceeding in accordance with
Rule 91 of the Rules of court and prove to the satisfaction of the court that it is entitled to the
estate of deceased because the latter left no relatives entitled to inherit from him.

Subsection 4
SURVIVING SPOUSE

Art. 995. In the absence of legitimate descendants and ascendants, and illegitimate children
and their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the
entire estate, without prejudice to the rights of brothers and sisters and nephews and nieces,
should there be any, under article 1001. (946a)
Effects of Marriage in Articulo Mortis: Under Article 900, second paragraph, there is a
reduction of the legitime of the surviving spouse when the other dies within three months after

the celebration of the marriage in articulo mortis. Please note that the marriage in articulo mortis
has no effect at all in cases of intestate succession. Thus, even if the deceased dies within three
months from the celebration of his marriage in articulo mortis with the surviving spouse, the
latter is entitled to the entire estate of the decedent, without prejudice to the rights of brothers
and sisters and nephews and nieces if they concur.

Art. 996. If the widow or widower and legitimate children or descendants are left, the surviving
spouse has in the succession the same share as that each of the children. (834a)
Please take note that the share of the surviving spouse is computed in relation to the share of
each legitimate child of the deceased, even if only grandchildren and other descendants
survive. The surviving spouse should always be considered as one legitimate child in the
division of the intestate estate.
Division of the intestate estate if there is only one legitimate child concurring with the
surviving spouse of the decedent: If there is only one legitimate child surviving with the spouse
of the deceased, since they share equally, one-half of the estate goes to the legitimate child and
the other to the surviving spouse. Please note that although the law refers to children or
descendants the rule on statutory construction that the plural can be understood to include the
singular is applicable in this case.

Art. 997. When the widow or widower survives with legitimate parents or ascendants, the
surviving spouse shall be entitled to one-half of the estate, and the legitimate parents or
ascendants of the other half. (836a)
This article is self-explanatory in that the testate estate shall simply be divided equally
between the surviving spouse and the legitimate parents or ascendants of the deceased.
However, a problem may arise in case of partial intestacy as when, for example, a legacy is
given by the decedent in his will. How do we divide estate of the decedent.
Please note that the one-half share given to the legitimate parents or ascendants of the
deceased in Article 997 is equal to the legitime given to them Article 889 whereas, the share
given to the surviving spouse in Article 997 is in excess of the legitime given to her under Article
893 which is only one-fourth of the hereditary estate. Thus, the division of the estate in case of
partial intestacy is to always give one-half of the intestate estate to the legitimate parents or
ascendants and honor the testamentary disposition in so far as they shall not prejudice the
legitime of the surviving spouse. In effect therefore, the amount of testamentary disposition shall
be deducted from the share of the surviving spouse on the hereditary estate of the deceased
but in no case shall her legitime shall be prejudice. Thus, if the legitime of the surviving spouse
will be prejudice, then the legacy or devise should suffer reduction.

Art. 998. If a widow or widower survives with illegitimate children, such widow or widower
shall be entitled to one-half of the inheritance, and the illegitimate children or their descendants,
whether legitimate or illegitimate, to the other half. (n)
This article is also self-explanatory. However, problem may arise in case of partial intestacy.
Please note that under Article 894, the legitime of surviving spouse and the illegitimate
children are the same, one-third of the hereditary estate. The division therefore of the estate of
the deceased in case of partial intestacy is to give effect to the testamentary disposition, in so
far as they will not prejudice the legitime of both the surviving spouse and the illegitimate
children.

Art. 999. When the widow or widower survives with legitimate children or their descendants
and illegitimate children or their descendants, whether legitimate or legitimate, such widow or
widower shall be entitled to the same share as that of a legitimate child. (n)
Please note that a literal application of this article can be made only if there are several
legitimate children or descendants concurring with the surviving spouse and illegitimate
children. Because if there is only one legitimate child or descendant concurring with the
surviving spouse and illegitimate children, literal application of this article is not possible as will
be shown below.
The estate is worth P200,000.00. The decedent was survived by 1 legitimate child, A, the
surviving spouse, W, and two illegitimate children, B and C.
A Literal application of Article 999 will result to the following distribution:
Legitimate Child A P100,000.00 because it is his legitime and his share in the intestate
estate of his father is one-half of the estate of P200,000.00
Surviving Spouse W P100,000.00 because her share is equal to the share of one legitimate
child
Illegitimate Child B P50,000.00 (one-half of the share of each legitimate child)
Illegitimate Child C P50,000.00 (One half of the share of each legitimate child)
Total amount distributed P300,000 which is in excess of the amount of the estate which is
only P200,000.00
Thus, a literal application of Article 999 if there is only one legitimate child or descendant
concurring with the surviving spouse and illegitimate children is not physically and
mathematically possible because the total of shares of the intestate hairs shall exceed the

amount of the intestate estate.

The proper and correct distribution of the intestate estate in a case where only one legitimate
child or descendant concurs with the surviving spouse and illegitimate children of the deceased
is as follows:
Legitimate Child A - - - - - - - - - - - - - - P100,000.00
Surviving Spouse W - - - - - - - - - - - 50,000.00 (her legitime)
Illegitimate Child B - - - - - - - - - - - 25,000.00
Illegitimate Child C - - - - - - - - - - - 25,000.00
Total Amount distributed - - - - - - - - - - P200,000.00 (intestate estate)
Please note that in the above computation, the share of the legitimate child given to him under
article 999 did not suffer any reduction. It is so because the share given to him under the said
article is equal or equivalent to his legitime. But because the legitime of the surviving spouse, if
she survives with one legitimate child, is one-fourth of the estate, her share in the above
distribution suffered deduction but such deduction should not prejudice her legitime. Because
by law, the legitime of the surviving spouse must be satisfied first before that of the illegitimate
children, it follows that whatever remainder there may
be should be divided equally between the illegitimate children to satisfy their legitime.
Art. 1000. If legitimate ascendants, the surviving spouse and illegitimate children are left, the
ascendants shall be entitled to one-half of the inheritance, and the other half shall be divided
between the surviving spouse and the illegitimate children so that such widow or widower shall
have one fourth of the estate, and the illegitimate children the other fourth. (841a)
DISTRIBUTION OF THE INTESTATE ESTATE, SAY IF THE VALUE THEREOF IS
P200,000.00:
Legitimate Ascendants - - - - - - - -P100,000.00 (one-half of estate)
Surviving spouse - - - - - - - - - - - - 50,000.00 (one-fourth of estate)
Illegitimate Children (to be divided
equally between them) - - - - - - 50,000.00 (one-fourth of estate)
Total amount distributed - - - - - - -P200,000.00
DISTRIBUTION IN CASE OF PARTIAL INTESTACY
Say in addition to the above set of fact, the decedent gave by way of will the amount
P30,000.00 to a friend X. The distribution in this case shall be:
Legitimate Ascendant - - - - - - - - P100,000.00 (always honor his legitime)
Surviving Spouse
- - - - - - - - 25,000.00 (her legitime under Art. 899)
Illegitimate Children - - - - - - - 50,000.00 (
- do )
Friend X - - - - - - - - - - - - - - - - 25,000.00 (will suffer reduction in order not to prejudice

the legitime of the surviving spouse and illegitimate children guaranteed to them under article
899)
Please note that under Article 899, when the widow or widower survives with legitimate
parents or ascendants and with illegitimate children, the legitime of the legitimate parents or
ascendants is one-half of the estate, that of the surviving spouse is one-eight and the
illegitimate children is entitled to one-fourth thereof. We should therefore reduce the share given
to the surviving spouse and the illegitimate children under Article 1000 but no case shall their
legitime guaranteed to them under article 899 be prejudice. The shares of the surviving spouse
and the illegitimate children given to them under article 1000 gave way to the testamentary
provision because the will of the decedent has priority over the law on intestacy. However, the
reduction should not in any way prejudice the legitimes of the surviving spouse and illegitimate
children who both concur with the legitimate parents or ascendants of the deceased.

Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the
latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children
to the other half. (953, 837a)
Art. 1002. In case of legal separation, if the surviving spouse gave cause for the separation,
he or she shall not have any of the rights granted in the preceding articles. (n)
These articles are both self-explanatory.

Subsection 5
COLLATERAL RELATIVES
Art. 1003. If there are no descendants, ascendants, illegitimate children, or surviving spouse,
the collateral relatives shall succeed to the entire estate of the deceased in accordance with the
following articles. (946a)
Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit
in equal shares. (947)
Art. 1005. Should brothers and sisters survive together with nephews and nieces, who are
children of the decedents brothers and sisters of the full blood, the former shall inherit per
capita, and the latter per stirpes. (948)
Art. 1006. Should brothers and sisters of the full blood survive together with brothers and
sisters of the half blood, the former shall be entitled to a share double that of the latter. (949)
Art. 1007. In case brothers and sisters of the half blood, some of the fathers and some of the

mothers side, are the only survivors, all shall inherit in equal shares without distinction as to the
origin of the property. (950)
Art. 1008. children of brothers and sisters of the half blood shall succeed per capita or per
stirpes, in accordance with the rules laid down for brothers and sisters of the full blood. (951)
These articles are all self-explanatory. But please note that in cases of nephews and nieces
and they inheriting in their own rights, nephews and nieces of the whole blood should receive
double that received by the nephews and nieces of the half blood. Half blood nephews and
nieces are the sons or daughters of the half blood brothers or sisters of the deceased.

Art. 1009. Should there be neither brothers or sisters, nor children of brothers or sisters, the
other collateral relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or p preference among them by reason of
relationship by the whole blood. (945a)
Art. 1010. The right to inherit ab intestado shall not extend beyond the fifth degree of
relationship in the collateral line. (955a).
Other Collateral Relatives: The last of the relatives of the decedent in intestate succession are
the collaterals other than brothers and sisters or children of brothers or sisters. These other
collateral relatives in order to inherit ab intestado from the decedent must be related to the latter
with the fifth degree of consanguinity. Relatives beyond the fifth degree are not entitled to inherit
ab intestado from the decedent. Of course the rule on proximity of relationship is applicable in
cases of other collateral relatives. Thus, the nearer in degree excludes the more distant ones.
Collaterals of the same degree inherit in equal parts. They succeed without distinction of lines or
preference among them on account of the whole blood or half blood relationship.

Subsection 6
THE STATE
Art. 1011. In default of persons entitled to succeed in accordance with the provisions of the
preceding Sections, the State shall inherit the whole estate. (956a)
Reason why the State has to succeed the decedent in case the latter left no relatives who by
law are entitled to succeed him To avoid the estate of the decedent from being res nullius that
can be the object of appropriation by anybody; thus, the State steps in and appropriate the
estate to prevent breakdown of public and economic order of the nation.
Art. 1012. In order that the State may take possession of the property mentioned in the

preceding article, the pertinent provisions of the Rules of Court must be observed. (958a)
Please note that the procedure to be followed in escheat is provided for in Rule 91 of the
Rules of court. You will learn this in detail in your Remedial Law, particularly, Special
Proceedings.
Art. 1013. After payment of debts and charges, the personal property shall be assigned to the
municipality or city where the deceased last resided in the Philippines, and the real estate to the
municipalities or cities, respectively, in which the same is situated.
If the deceased never resided in the Philippines, the whole estate shall be assigned to the
respective municipalities or cities where the same is located.
Such estate shall be for the benefit of public schools, and public charitable institutions and
centers, in such municipalities or cities. The court shall distribute the estate as the respective
needs of each beneficiary may warrant.
The court, at the instance of an interested party, or on its own motion, may order the
establishment of a permanent trust, so that only the income from the property shall be used.
(956a)

Art. 1014. If a person legally entitled to the estate of the deceased appears and files a claim
thereto with the court within five years from date the property was delivered to the State, such
person shall be entitled to the possession of the same, or if sold, the municipality or city shall be
accountable to him for such part of the proceed as may not have been lawfully spent. (n)

Chapter 4
PROVISION COMMON TO ESTATE AND
INTESTATE SUCCESSION
Section 1
RIGHT OF ACCRETION
Art. 1015. Accretion is a right by virtue of which, when two or more persons are called to the
same inheritance, devise or legacy, the part assigned to the one who renounces or cannot
receive his share, or who died before the testator, is added or incorporated to that of his coheirs, co- devises, or co-legatees. (n)
Please note that the basis of accretion is the presumed will of the decedent. When two or
more persons were given a legacy or devise by a testator in his will without expressly

designating their respective shares, the law presumes that the testator gives these persons
preference over the thing given. Thus, when one of the persons designated repudiates or is
incapable of succeeding, the law respects the will of the testator and gives the vacant share to
the other co-heir, co-devisee or co-legatee.
Please do not confuse accretion with substitution of heirs. When the testator designated a
substitute or substitutes for persons he has instituted, then in case one of them predecease the
testator or repudiates or be incapable of receiving his corresponding share, the right of accretion
shall not take place because there is no necessity to rely upon the presumed will of the testator
because he has already expressed his intention to give to the substitute the share that has been
left vacant.
Please always bear in mind that the express will of the testator takes precedence over the
provisions of the Civil Code on accretion. This is so because the law on accretion is based only
on the presumed will of the testator, thus, it should never be allowed to defeat his express will.
Thus, a testator can legally provide in his will that there shall be no accretion among persons
who would otherwise be entitled thereto.
Please also bear in mind that in both testamentary and intestate succession, there can be no
accretion if the right of representation is proper. This is so because when there is right of
representation, by legal fiction, no share is vacated.

Art. 1016. In order that the right of accretion may take place in a testamentary succession, it
shall be necessary:
(1) That two or more persons be called to the same inheritance, or to the same portion
thereof, pro indiviso; and
(2) That one of the persons thus called die before the testator, or renounce the inheritance, or
be incapacitated to receive it. (982a)

Art. 1017. The words one-half for each or in equal shares or any other which, though
designating an aliquot part, do not identify it by such description as shall make each heir the
exclusive owner of determinate property, shall not exclude the right of accretion.
In case of money or fungible goods, if the share of each heir is not earmarked, there shall be
right of accretion. (983a)
Requisites of accretion in testamentary succession:
There must be one object or the same portion thereof given in the will.

It must be given jointly or collectively to two or more persons without designation of a particular
part or portion or aliquot part of the property among the different heirs;
That one or some persons to whom the thing or portion thereof was given predeceased the
testator or renounced his inheritance or became incapacitated to receive it.
The testamentary disposition must be made in a single will.
Acceptance of the vacant portion by the co-heir, co devise or co-legatee,
Please note that in order that there may be accretion, it is necessary that the subjects be
called to the same inheritance, or same portion thereof. The subjects must be called jointly to
the inheritance, in the same will and under the same testamentary disposition, without the
testator making a distribution of shares among them or fixing a quota or amount for each heir by
designations which make each one the owner of a separate mass of property.
PROBLEM: A and B were instated by the testator to his farm located in General Santos City
consisting of 100 hectares in equal shares. Is accretion possible?
Yes, accretion will take place should either of A or B die before the testator or renounce his
inheritance or be incapacitated to receive the same. Although a quota was given to each heirs,
however, under Article 1017, the phrase one half each or in equal parts, does not exclude the
right of accretion.
But where the testator designates an aliquot part or quota separately for each heir, or state
numerically or by quantity what each heir shall receive, there will be no accretion, as in the
following cases:
I leave one-half of my farm in General Santos City to A, one-fourth to B and one-fourth to C;
I bequeath my money in my bank account with PNB to A and B, such that A shall be entitled
to 80% thereof and B to the remainder.
Thus, in conclusion, when the heirs are instituted collectively and together to the inheritance
or some portion thereof in such manner that there is created as among them a condition of coownership or indivision in which each has an equal participation, clearly indicating the intention
of the testator to give to all of them the property or a portion thereof as a single unit, accretion
will take place, whether or not the testator has expressly stated such equality in participation.

Art. 1018. In legal succession the share of the person who repudiates the inheritance shall
always accrue to his co-heirs. (981)
Please take note and analyze the use of the phrase person who repudiates the inheritance in

article 1018. Importance must be given thereto, because in legal succession, accretion is
possible only if a co-heir repudiates his inheritance or in case of incapacity of a child or
descendant, who has his own child or descendant. In legal succession, in case of predecease
or incapacity of the co-heir to succeed, accretion does not take place because in such cases
representation comes in or in case representation is not possible, the vacant share goes to the
other heirs not by right of accretion but in their own right. There is accretion in case a co-heir
repudiates his inheritance because representation is not possible since a renouncer can never
be represented. Thus, the share vacated by the renouncer goes to his co-heirs by right of
accretion.

Art. 1019. The heirs to whom the portion goes by the right of accretion take it in the same
proportion that they inherit. (n)
This article is self-explanatory.

Art. 1020. The heir 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. (984)
This article is self-explanatory

Art. 1021. Among the compulsory heirs the right of accretion shall take place only when the
free portion is left to two or more of them, or to any one of them and to a stranger.
Should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own
right, and not by right of accretion. the right of accretion shall take place only when the free
portion is left to two or more of them, or to any one of them and to a stranger.
Should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own
right, and not by right of accretion. (985)
Please always remember this rule: Accretion is possible only with respect to the free portion
but never in the legitime.
Illustrative application of Article 1021:
A testator instituted his two legitimate children, A and B and his friend X to his estate of P300,
000.00. Upon the testators death, A repudiates his share in the inheritance. What will be the
division of the estate?

Solution:
Original Share Share in
Legitime:
on Free Portion: Accretion:
Total Share:
B - - - - P150,000.00 + P50,000.00 + 25,000.00 = P225,000.00
X---50,000.00 + 25,000.00 =
75,000.00
Total Distribution - - - - - - - - - - - - - - - - - - - - - - = P300,000.00
Explanation:
Since accretion applies only to the free portion and never to the legitime, the share of A, who
repudiated his inheritance, in the whole legitime shall go to the other legitimate child of the
decedent B in his own right and not by right of accretion. Because the institution of heir affects
only the free portion, the share of the three instituted heirs thereon is only P50,000.00 each.
Since A renounced his inheritance his share shall go to his co-heirs by accretion and they will
divide the same equally or P25,000.00. B received P225,000.00 because it is the total of the
legitime, his own share in the institution, which is P50,000.00, and his share in the accretion,
which is P25,000.00. X received P75,000.00 because it is the total of his own share in the
institution, which is P50,000.00, and his share in the accretion, which is P25,000.00
Art. 1022. In testamentary succession, when the right of accretion does not take place, the
vacant portion of the instituted heir, 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. (986)
Nota Bene: There may be instances that the testate estate or part thereof may be claimed by
a substitute of an instituted heir and another heir by right of accretion. Their controversy must be
resolved applying the principle in testamentary succession that the will of the testator is
supreme. Hence, it must be respected as much as possible. The right of the substitute arises
from the will of the testator, while the right of the heir claiming by accretion is based only on the
presumed will of the testator. Thus, the right of a substitute must prevail over the right of an heir
who is claiming by virtue of the right of accretion.
In case there is no substitute and accretion is not possible because its requisites are not
present, Article 1022 provides that the vacant portion shall pass to the legal heirs, who shall
receive it with the same charges and obligation.

Art. 1023. Accretion shall also take place among devisees, legatees and usufructuaries under
the same conditions established for heirs. (987a)

Section 2

CAPACITY TO SUCCEED BY WILL OR BY INTESTACY

Art. 1024. Persons not incapacitated by law may succeed by will or ab intestado.
The provisions relating to incapacity by will are equally applicable to intestate succession.
(744 and 914)
Capacity of a person to succeed is presumed: The general rule is that every person has
capacity to succeed mortis causa. In order to deny a person the capacity to succeed, it must be
shown that some provisions of law exclude him. An entity, once endowed with juridical
personality, capacity to succeed follows as a matter of course, unless some special cause for
disqualification or incapacity exists.
Requisites that must concur for the possession of capacity to succeed:
1st: that there be general civil capacity of the person, whether natural or artificial, according to
law; and
2nd: that there be no incapacity or prohibition to succeed expressly provided by law.
Please also note that there are some forms of disqualification or incapacity that are applicable
only to a certain kind of succession, it be testamentary or intestate. Please note that the
incapacity of the priest, his relatives or church, the disqualification of the guardian, the exclusion
of the witness to a will or of those who took care of the testator during his last illness, provided
for in paragraphs (1), (2), (3), (4) and (5) of Article 1027 are applicable only to testamentary
succession and not to intestate succession. Thus, the provisions of the second paragraph of
Article 1025 must be considered only as a general rule, without prejudice to the determination of
the true scope of specific disqualifications.

Art. 1025. In order to be capacitated to inherit, the heir, devisee or legatee must be living at
the moment the succession opens, except in case of representation, when it is proper.
A child already conceived at the time of the death of the decedent is capable of succeeding
provided it be born later under the conditions prescribed in article 41. (n)
Kinds of incapacity to succeed:
Absolute or per se Incapacity to succeed in any form, to any one, or to any quantity or
property.
Relative Incapacity to succeed with respect to certain persons or property.

Acquisition of juridical personality in point of time:

Although a conceived child is considered born for all purposes favorable to it, nevertheless, it
lacks true juridical personality. Full real juridical personality is acquired only if the conceived
child is subsequently born with the conditions mentioned in article 41. Thus, all the rights it may
acquire while in its mothers womb are dependent upon the condition that it shall one day
acquire complete personality. If it never comes to have complete personality, either because it is
not born or because it is born without the conditions required in Article 41, then all the rights
acquired by it while in its mothers womb are extinguished. Thus, it becomes absolutely
incapacitated to succeed, even if the testator may have anticipated its subsequent birth and has
instituted it in his will.
Those who were not even conceived at the time of the death of the testator are clearly
incapacitated to succeed for absolute absence of legal personality at the time of the opening of
the succession, save in case of representation, when it is proper. However, according to
Sanchez Roman, when the institution is under suspensive condition or from a day certain, the
succession does not really open except upon the happening of the condition or the arrival of the
day certain. In such cases, even if the unborn person instituted has not yet been conceived at
the time of the death of the testator, if it is subsequently born and has legal personality at the
time the condition happens or the day arrives, then it has the capacity to succeed.
Only persons may succeed, and there is no person unless there is juridical existence. If the
rights to succession are transmitted from the moment of death of the predecessor, there must
be a subject with juridical capacity to whom the transmission can be made at that precise
moment. If no such subject exists at the moment of the death of the testator, then there cannot
be transmission at that moment.
Please also remember this: In the dead, the personality has ceased to exists; in the
unconceived child, it has not yet commenced. Whenever confronted with problems about
juridical personality.

Art. 1026. A testamentary disposition may be made to the State, provinces, municipal
corporations, private corporations, organizations, or associations for religious, scientific, cultural,
education, or charitable purposes.
All corporations or entities may succeed under a will, unless there is provisions to the contrary
in their charter or the laws of their creation, and always subject to the same. (746a)
Please note that not all the entities mentioned in Article 1026 are persons having juridical
existence. Organizations or associations mentioned therein may or may not have juridical
personality. Such organizations or association that may not have juridical personality,
nevertheless, are allowed to succeed, not by virtue of the general rule of capacity, but by a

special provision in the said article conferring upon them such special capacity to succeed.

Art. 1027. The following are incapable of succeeding:

(1) The priest who heard the confession of the testator during his last illness, or the minister of
the gospel who extended spiritual aid to him during the same period;
(2) The relatives of such priest or minister of the gospel within the fourth degree, the church, the
order, chapter, community, organization, or institution to which such priest or minister belong;
(3) A guardian with respect to testamentary dispositions given by a ward in his favor before the
final accounts of the guardianship have been approved, even if the testator should die after the
approval thereof; nevertheless, any provision made by the ward in favor of the guardian when
the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid;
(4) Any attesting witness to the execution of a will, the spouse parents, or children, or any one
claiming under such witness, spouse, parents, or children;
(5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during
his last illness;
(6) In individuals, associations and corporations not permitted by law to inherit. (745, 752, 753,
754a)
Please note that the disqualifications provided in paragraphs 1 to 5 of this article are
applicable only to testamentary succession and they are relative disqualification; that of the last
paragraph, paragraph (6) refers to both testamentary and intestate succession and it is an
absolute disqualification.
Please also note that the relative disqualification under paragraphs 1 to 5 of this article
although applicable only to testamentary dispositions should not be allowed to prejudice the
legitime of compulsory heirs. Thus, if the priest who heard the last confession of the testator is a
legitimate son of the testator and the former was made the universal heir of the latter, the
incapacity to inherit by way of testamentary succession shall refer only to the free portion
because as legitimate child he is entitled to receive his legitime. Please take cognizance of the
possibility that the person disqualified in article 1027 may be the nearest relative of the
decedent and as such may exclude other relatives of the latter. In such cases, even if the
testamentary disposition may be disallowed because of the effects of article 1027, still the whole
state may go to the said person so disqualified by virtue of intestate succession.
You are advised to memorize this article and to read the commentaries of Paras or Tolentino
on this matter.

Art. 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall
apply to testamentary provisions. (n)
Under this article, in relation with article 739, the following testamentary provisions shall be
without effect:
(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; and
(3) Those made in favor of a public officer or his spouse, descendants and ascendants, by
reason of his public office.
These disqualifications are based on considerations of morality, and are intended to prevent
circumventing of the prohibitions on donations by resorting to the making of a will as a means of
disposing of property in favor of the disqualified donees.
Note: a devise given by a married man estranged from his wife for 22 years prior to his death, to
a woman with whom he has been living maritally for said period of time, is void. (Nepomuceno
vs. Court of Appeals, 139 SCRA 207)

Art. 1029. Should the testator dispose of the whole or part of his property for prayers and pious
works for the benefit of his soul, in general terms and without specifying its application, the
executor, with the courts approval shall deliver one-half thereof or its proceeds to the church or
denomination to which the testator may belong, to be used for such prayers and pious works,
and the other half to the State, for the purposes mentioned in article 1013. (747a)

Art. 1030. Testamentary provisions in favor of the poor in general, without designation of
particular persons or of any community, shall be deemed limited to the poor living in the
domicile of the testator at the time of his death, unless it should clearly appear that his intention
was otherwise.
The designation of the person who are to be considered as poor and distribution of the property
shall be made by the person appointed by the testator for the purpose; in default of such
person, by the executor, and should there be no executor, by the justice of the peace, the
mayor, and the municipal; treasurer, who shall decide by a majority of votes all questions that
may arise. In all cases, the approval of the Court of First Instance shall be necessary.
The preceding paragraph shall apply when the testator has disposed of his property in favor of

the poor of a definite locality. (749a)

Art. 1031. A testamentary provisions in favor of a disqualified person, even though made under
the guise of an onerous contract, or made through an intermediary, shall be void. (755)
This is an application of the rule that what the law prohibits to be done directly cannot be
done indirectly. Hence, this article renders void any acts done to circumvent the prohibitions in
favor of incapacitated persons.
Interposition The person interposed is one who is named in a will as the apparent heir,
legatee, or devisee, but he is not the one who is really intended to benefit from the testamentary
disposition but the person disqualified. The intervention of the person interposed in the
succession is false, for he does not really receive anything, and it is this fraudulent
circumventing of the legal prohibition against disposition in favor of incapacitated persons that
taints the interposition with the vice of nullity.
The interposition may be made in either of these ways: (1) by the institution of a person who
has capacity, with a verbal charge or instruction to deliver the inheritance to the incapacitated
person; (2) by disguising the disposition in the form of a contract; and (3) by simulating debts in
favor of the incapacitated person.
Proof of interposition must always be proved and it cannot be presumed. It is not necessary,
however, to show that there has been a previous understanding before the death of the testator
to make the incapacitated person the real beneficiary because in the nature of things such
understanding would be secret and impossible to prove. It is enough to show the absence of
benefit to the person instituted, and the ultimate enjoyment of the inheritance by the
incapacitated person, if it is he who really enjoys and benefits from it.
Please note that the disqualified person in this article does not include those who are such by
reason of unworthiness. The institution of the unworthy person, with knowledge of the cause of
unworthiness, is itself a tacit pardon by the testator.

Art. 1032. The following are incapable of succeeding by reason of unworthiness:

(1) Parents who have abandoned their children or induced their daughters to lead a corrupt or
immoral life, or attempted against their virtues;
(2) Any person who has been convicted of an attempt against the life of the testator, his or her
spouse, descendants, or ascendants;
(3) Any person who has accused the testator of a crime for which the law prescribes
imprisonment for six years or more if the accusation has been found groundless;

(4) Any heir of full age who, having knowledge of the violent death of the testator, should fail
to report it to an officer of the law within a month, unless the authorities have already taken
action; this prohibition shall not apply to cases wherein, according to law, there is no obligation
to make an accusation;
(5) Any person convicted of adultery or concubinage with the spouse of the testator;
(6) Any person who by fraud, violence, intimidation, or undue influence should cause the
testator to make a will or to change one already made;
(7) Any person who by the same means prevents another from making a will, or from
revoking one already made, or who supplants, conceals, or alters the latters will;
(8) Any person who falsifies or forges a supposed will of the decedent. (756, 673, 674a)
Please note that grounds for incapacity enumerated in article 1032 are equally applicable to
both testamentary and intestate succession. The use of the word testator in some paragraphs in
the said article is of no moment because the reason for the incapacity exists in both kinds of
succession.
The incapacity to succeed by reason of unworthiness is not absolute; the person who is
disqualified by reason of unworthiness is disqualified to succeed only from the person against
whom the act of unworthiness has been committed.
Abandonment of a child: According to Tolentino and other reliable commentators, the word
abandonment is not used in the limited sense of having exposed the children to the danger of
death, but in the broad and general sense of not giving the proper care to the children, not
supporting them, and not attending to their physical, moral or educational welfare.
Inducing Immorality; attempts against virtue: Please note that to be disqualified on these
grounds, there must be some positive act showing perversion on the part of the parent. He must
have led or persuaded the daughter to live a corrupt or immoral life, or he must have made an
attempt against her virtue. Tolentino is of the view that mere act of a parent of inducing his
daughter to lead a disgraceful or immoral life is a sufficient cause for disinheritance, even if the
daughter did not heed the inducement.
Attempt against the life of the decedent, his or her spouse, descendants, or ascendants: Please note that the attempt must be made by the person supposed to be disqualified and there
must have been a conviction for such attempt. Please note that whatever is the degree of the
attempt is immaterial. It is enough that the person disqualified be convicted of any crime against
person with intent to kill as one of its elements. Even an accomplice to such crimes is included
in the disqualification.

False accusations: - These include not only the filing of a complaint against the decedent
without cause, but also declaring or testifying falsely as a witness against him. One who merely
testifies to the truth, even if such testimony may incriminate the decedent and be the basis of his
conviction, is not covered in the disqualification.
Please note the elements of false accusations as we have already discussed in Article 919: 910
the act of accusing the testator, (2) the judicial declaration that the accusation is false, and (3)
that the offense charged is punishable by imprisonment of six years or more.
Failure to report violent death of the decedent: - This cause for unworthiness has the following
requisites:
1. The heir must be of full age;
2. He knows of the violent death of the decedent;
3. There is an obligation to make an accusation; and,
Failure of the heir to report such death to the proper authority within one month from discovery
of the violent death.
Adultery or Concubinage: - The heir, devisee, or legatee who is convicted of adultery or
concubinage with the spouse of the decedent is unworthy to succeed the offended decedent. A
conviction for the crime is necessary. The mere commission of the offense is not enough to
disqualify.
Please note that the wife or husband of the offended decedent who has been convicted of
adultery or concubinage, is not rendered unworthy because only his or her paramour is
disqualified to succeed from the offended spouse. However, if the offended spouse asks for
legal separation on the ground of adultery or concubinage and the court issued a decree of legal
separation, then the guilty spouse is rendered incapacitated to succeed the offended spouse ab
intestado or by a will already existing at the time of the legal separation, under Article 63 of the
Family Code.
Please note that the guilty pair is not disqualified to succeed ab intestado from each other.
However, by virtue of article 739, they cannot succeed each other by testamentary succession.
Acts Relating to Execution or Non-Execution of Will:: The following act will cause
unworthiness in relation to the testators will, are: (1) Causing the testator to make a will, (2)
Causing the testator to change an existing will, (3) Preventing the decedent from making a will,
(4) preventing the testator from revoking his will, (5) Supplanting, concealing, or altering the
testators will, and (6) Falsifying or forging a supposed will of the decedent. The first four acts
must be committed through fraud, violence, intimidation or undue influence. The last two acts
are acts by themselves, executed in any manner, will cause the doer unworthy to succeed from
the decedent.
Effects of Unworthiness: Deprivation of the right of the heir to inherit from the decedent,

including the loss of his legitime if the heir is a compulsory heir.

Effects of Unworthiness on Donations Inter Vivos: donations inter vivos are not affected by the
incapacity of the donee to succeed the donor. The donations shall simply be considered as
having been made to strangers even if the donee should be the compulsory heir of the donor.
However, if the act of unworthiness is also an act of ingratitude, the donor may revoke the
donation during his lifetime.
otherwise.

Art. 1038. Any person incapable of succession, who, disregarding the prohibition stated in the
preceding articles, entered into the possession of the hereditary property, shall be obliged to
return it together with its accessions.
He shall be liable for all the fruits and rents he may have received, or could have received
through the exercise of due diligence. (760a)
Please note that the incapable person who entered into possession of the hereditary
property shall be obliged to return it with all its accessions or all kinds of improvements and
accessories. Also liable for all the fruits and rents he may have received or could have received
through the exercise of due diligence. He shall also be liable for the deterioration or loss of the
property. If the incapacitated person entered the property in bad faith, he shall be liable even if
the thing be lost through force majeure.

Art. 1039. Capacity to succeed is governed by the law of the decedent. (n)
Please note that this article is in perfect harmony with Article 16 (2) of the Civil Code. The
national law of the decedent governs the intrinsic validity of his will.

Art. 1040. The action for a declaration of incapacity and for the recovery of the inheritance,
devise or legacy shall be brought within five years from the time the disqualified person took
possession thereof. It may be brought by any one who may have an interest in the succession.
(762a)
Please note that this article provides prescription of the action for the declaration of incapacity
of an heir and the recovery of inheritance from the disqualified heir. The action must be brought
within five (5) years from the time such person took possession of the inherited property. Any
one who may have an interest in the succession may bring the action.
Section 3

ACCEPTANCE AND REPUDIATION

OF THE INHERITANCE
Acceptance is manifestation of an heir, legatee or devisee, express or implied, of his
willingness to receive the possession and enjoyment of the inheritance of a deceased person.
Repudiation on the other hand, is the manifestation by a heir, devisee or legatee of his desire
not to accept the inheritance of a deceased person.

Art. 1041. The acceptance or repudiation of the inheritance is an act which is purely voluntary
and free.
Except on the question of whether or not partial acceptance of an inheritance is possible in
this jurisdiction, this article is self-explanatory.
The rule under the old Civil Code: partial acceptance is not allowed. The heir must either
repudiate or accept the whole inheritance.
The rule under the present law: Partial acceptance or repudiation is allowed. Reason:
Deletion in the present Code of the provision in the old Civil Code of the express prohibition on
partial acceptance or repudiation. If acceptance or repudiation of the whole inheritance is
allowed, then there is no valid reason why a partial acceptance or repudiation may not be
allowed. The greater right always includes the less.

Art. 1042. The effects of the acceptance or repudiation shall always retroact to the moment of
the death of the decedent. (989)
The effect of acceptance or repudiation has to retroact must retroact to the moment of death
of the decedent because it marks the moment of the transmission of the rights to succession.
Hence even if the acceptance or repudiation of the inheritance be made much later than the
death of the decedent, by fiction of law, the will of the heir, devisee or legatee, to take or refuse
to take the inheritance is made simultaneous with the death of the decedent because the
continuity of ownership of property should not suffer interruption.

Art. 1043. No person may accept or repudiate an inheritance unless he is certain of the death
of the person from whom he is to inherit, and of his right to the inheritance. (991)
Please note that this article lays down the two requisites for the validity or an acceptance or
repudiation of inheritance, as follows: (1) The subject must be certain of the death of the person
from whom he is supposed to inherit; and (2) he must be certain that he has a right to inherit for
the deceased.

Art. 1044. Any person having the free disposal of his property may accept or repudiate an
inheritance.
Any inheritance left to minors or incapacitated persons may be accepted by their parents or
guardians. Parents or guardians may repudiate the inheritance left to their wards only by judicial
authorization.
The right to accept an inheritance left to the poor shall belong to the persons designated by
the testator to determine the beneficiaries and distribute the property, or in their default, to those
mentioned in article 1030. (992a)

Art. 1045. The lawful representatives of corporation, associations, institutions and entities to
acquire property may accept any inheritance left to the latter, but in order to repudiate it,
approval of the court shall be necessary. 993a)

Art. 1046. Public official establishments can neither accept nor repudiate an inheritance
without the approval of the government. 994)
The approval must be made by the head of the department to which the public establishment
belongs or is subordinated.

Art. 1047. A married woman of age may repudiate an inheritance without the consent of her
husband. (995a)
Please note that this article may have been rendered obsolete already by the Family code.

Art. 1048. Deaf-mute who can read and write may accept or repudiate the inheritance
personally or through an agent. Should they not be able to read and write, the inheritance shall
be accepted by their guardians. These guardians may repudiate the same with judicial approval.
(996a)

Art. 1049. Acceptance may be express or tacit.

An express acceptance must be made in a public or private document.
A tacit acceptance is one resulting from acts which the intention to accept is necessarily
implied, or which one would have no right to do except in the capacity of an heir.

Acts of mere preservation or provisional administration do not imply an acceptance of the

inheritance if, through such acts, the title or capacity of an heir has not been assumed. (999a)

Art. 1050. An inheritance is deemed accepted:

(1) If the heir sells, donates, or assigns his right to a stranger, or to his co-heirs, or to any of
them;
(2) If the heirs renounces the same, even though gratuitously, for the benefit of one or more
of his co-heirs;
(3) If he renounces it for a price in favor of all his co-heirs indiscriminately; but if this
renunciation should be gratuitous, and the co-heirs in whose favor it is made are those upon
whom the portion renounced should devolve by virtue of accretion, the inheritance shall not be
deemed as accepted. (100)
Tacit acceptance may be presumed from certain acts of the heirs. Article 1050 enumerates
some of the acts where tacit acceptance may be presumed. Thus, when an heir sells, donates,
or assigns his right on his inheritance, such act is deemed an acceptance of the inheritance
because his act involves alienation of the property or his right. Please note, however, that the
mere calling by a will or law of an heir does not give him the right to succession. His right on the
succession depends upon his acceptance.
Thus, when a person called by will or law to succession disposes his right or alienates the
property to which he is to succeed without express acceptance, the law presumes that he
considers the right or property to be his own and his ownership can only be justified by an
implied acceptance.
Please note that when an heir renounces the inheritance for the benefit of one or more of his coheirs, the renunciation may either be gratuitously or for a valuable consideration and the act is
not really renunciation in the strict term but it is in fact a cession or act of disposition.
Also note that even if the law limits the renunciation in favor of one or more of the co-heirs,
nevertheless, the renunciation may be made indiscriminately in favor of all the co-heirs,
provided, that they are not the persons called by law in case of intestacy. In other words, in case
of gratuitous and indiscriminate renunciation made by an heir in favor of all his co-heirs, the
latter must not be the intestate heirs of the decedent.
QUESTION: Will there be accretion if favor of all the co-heirs who are all intestate heirs in
case of a renunciation made for a valuable consideration?
Art. 151. The repudiation of an inheritance shall be made in a public or authentic instrument,
or by petition presented to the court having jurisdiction over the testamentary or intestate

proceedings. (1008)
This is self-explanatory.
Art. 1052. If the heir repudiates the inheritance to the prejudice of his own creditors, the latter
may petition the court to authorize them to accept it in the name of the heir.
The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of
their credits. The excess, should there be any, shall in no case pertain to the renouncer, but
shall be adjudicated to the persons to whom, in accordance with the rules established in this
Code, it may belong. (1001)
Although this article may be self-explanatory, nevertheless you must always bear this in mind
for the purposes of the bar examination. The question on this article may be framed as follows:
A who is called to the succession of his father in the amount of ten million pesos renounced
his inheritance in favor of his brothers and sisters to avoid the inheritance falling on the hands of
his judgement creditor B. To protect his interest, what should B do under the premises?
Art. 1053. If the heir should die without having accepted or repudiated the inheritance his right
shall be transmitted to his heirs. (1006)

Art. 1054. Should there be several heirs called to the inheritance, some of them may accept
and the others may repudiate it. (1007a)
Articles 1053 and 1054 are both self-explanatory.

Art. 1055. If a person, who is called to the same inheritance as an heir by will and ab
intestato, repudiates the inheritance in his capacity as a testamentary heir, he is understood to
have repudiated it in both capacities.
Should he repudiate it as an intestate heir, he may still accept it in the latter capacity. (1009)
Please always bear in mind that for this article to apply, the heir who made the renunciation
must be both an intestate and voluntary heir and he must be called to the same succession.
Thus, if he repudiates his inheritance in his capacity as testamentary heir, he is deemed to have
waived his right as an intestate heir at the same time. But if he only renounced his right in his
capacity as an intestate heir, he can still accept the same inheritance in his capacity as a
voluntary or testamentary heir.

Art. 1056. The acceptance or repudiation of an inheritance, once made, is irrevocable, and

cannot be impugned, except if was made through any of the causes that vitiate consent, or
when an unknown will appears. (997)
Please note that acceptance or revocation of an inheritance is final and irrevocable. It cannot
be impugned save in cases where consent is vitiated or when an unknown own will of the
decedent appears.

Art. 1057. Within thirty days after the court has issued an order for the distribution of the
estate in accordance with the Rules of Court, the heirs, devisees and legatees shall signify to
the court having jurisdiction whether to accept or repudiate the inheritance.
If they do not do so within that time, they are deemed to have accepted the inheritance. (n)
This article is self-explanatory.

Section 4. Executors and Administrators

Art. 1058. All matters relating to the appointment, powers and duties of executors and
administrators and concerning the administration of estates of deceased persons shall be
governed by the Rules of Court. (n)

Art. 1059. If the assets of the estate of a decedent which can be applied to the payment of
debts are not sufficient for that purpose, the provisions of Articles 2239 to 2251 on Preference of
Credits shall be observed, provided that the expenses referred to in Article 2244, No. 8, shall be
those involved in the administration of the decedents estate. (n)

Art. 1060. A corporation or association authorized to conduct the business of a trust company
in the Philippines may be appointed as an executor, administrator, guardian of an estate or
trustee, in the like manner as an individual; but it shall not be appointed guardian of the person
of a ward. (n)

Section 5. Collation

The word collation is no longer new to you. To collate is to bring back or to return to the
hereditary mass, in fact or by fiction, property which came from the estate of the decedent
during his lifetime, but which the law considers as an advance from the inheritance.
In collation an heir who have previously received by gratuitous title property coming from the

hereditary mass of the decedent during his lifetime is required to bring back the said property or
the value thereof to the hereditary mass, so that a division may be effected in favor of all the
heirs according to law and the will of the testator. Its object is to prevent any heir from being
deprived of the legitime or the part thereof that corresponds to him; and to verify whether the
testator has disposed, to the prejudice of the compulsory heirs, of property in excess of the
amount of which he can dispose by law. In short, collation is devised by law to determine if
gratuitous alienation of the property during the lifetime of the testator or a decedent is inofficious
or not.
HOW TO DETERMINE WHETHER A DONATION IS INOFFICIOUS OR NOT:
1st: determine the value of the property which remains at the time of the testators death;
2nd: determine the obligations and debts, charges on the estate;
3rd: determine the net estate after deducting the obligations, debts and charges from the
value of the property which remains at the time of death of testator;
4th: add the value of the donations subject to collation made to the heir, at the time of the
donation, to the net estate;
5th: determine if the legitime of each compulsory heir based on the total of the collation and
the net estate. In the determination of the legitime of each compulsory heir, the donation is
treated as an advance on the legitime.

Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into
the mass of the estate any property or right which he may have received from the decedent,
during the lifetime of the latter, by way of donation, or any gratuitous title, in order that it may be
computed in the determination of the legitime of each heir, and in account of the partition.
(1035a)
Please note that the surviving spouse is not covered in this article although he or she is a
compulsory heir of the decedent. It is because donations during the marriage between spouses
are prohibited, thus, they are completely null and void, and hence, there is no need for collation.
Moderate gifts during family celebrations are valid, but these are not subject to collation. If a
donation had been given to the surviving spouse prior to the celebration of the marriage, still
said donation is not subject to collation because at the time of the donation the donee is not yet
a compulsory heir of the donor, hence, such donation should be considered as given to a
stranger and therefore must be charged against the free portion.
Please note that tacit or indirect donations, such as release or remission of a debt of the heir,
the repairs or improvements of the properties or tenements belonging an heir, the purchase of
immovables by the deceased in the name of an heir, are subject to collation.

Art. 1062. Collation shall not take place among compulsory heirs if the donor should have
expressly provided, or if the donee should repudiate the inheritance, unless the donation should
be reduced as inofficious. (1036)
This is self-explanatory. Again this is an application of the doctrine that the will of the testator
must always be respected. Thus, if the donor expressly provided in his will or in the deed of
donation that the property donated to an heir will not be subject to collation, then that will of the
testator or the donor must be respected. Again, the express will of the testator or decedent must
be preferred over the provisions of the Civil code on collation because the said provisions are
based only upon the presumed will of the testator or the decedent
Please note that the intention to exempt a donation from collation must be clear and
unequivocally in the deed of donation or in the will, otherwise, the donation is subject to
collation.
Note also that if the heir repudiates the inheritance, properties donated to him by the testator
or the decedent during his lifetime is not subject to collation, except if the donation should be
reduced as inofficious. Thus, even if there is repudiation, if the donation prejudiced the legitime
of the other compulsory heirs, a portion of the donated property or a portion of the value thereof
must be collated to satisfy the legitime of the other compulsory heirs.
Art. 1063. Property left by will is not deemed subject to collation, if the testator has not
otherwise provided, but the legitime shall in any case remain unimpaired. (1037)
This self-explanatory. But you are advised to read the comments of Tolentino on this matter
regarding what he termed lack in accuracy of language and concept of the code in providing for
this article.
Art. 1064. When grandchildren, who survive with uncles, aunts, or cousins, inherit from their
grandparents in representation of their father or mother, they shall bring to collation all that their
parents, if alive, would have obliged to bring, even thoug h such children have not inherited the
property. (1038)
Please note that this article is an exception to the general rule that only persons who received
donations should collate. In case of succession to the grandparents, grandchildren, if they
concur with their uncles, aunts and cousins, are required to bring to collation whatever
properties that was donated to their parent by their deceased grandparents. This so because
grandchildren surviving with uncles, aunts and cousins inherits from their grandparents by
representation of their parent. Thus, being a mere representative, they merely step into the
shoes of the person they are representing. Thus, they are obliged to collate the donated
property because that is the obligation of the represented had they been alive.
Note also that the grandchildren are also required to collate properties donated to them by

the decedent during his lifetime, unless the testator has provided otherwise, provided that the
legitime of the co-heirs is not prejudiced.

Effects of renunciation of the grandchildren from the inheritance of their parents:

If the grandchildren renounce their inheritance from their parent, thus, renouncing the
inheritance to a property previously donated by their deceased grandparent to the latter,
although the renouncing grandchild can not inherit the donated property from the parent-donee,
still he is obliged to collate the donated property because he is still inheriting from his
grandparent who donated the property to his own parent from whom he renounced his
inheritance. Again this is a case of representation, and the representative is obliged to perform
the obligation of the person he is representing, although he may have renounced his inheritance
from the latter.

Art. 1065. Parents are not obliged to bring to collation in the inheritance of their ascendants
any property, which may have been donated by the latter to their children. (1039)
Please always bear in mind this principle in succession: the compulsory heirs are obliged to
collate only the properties they received personally and in their own name from their
ascendants. Thus, a parent is not responsible to collate properties donated by their ascendants
to his own children.
Clearly therefore, this article provides that donations inter vivos made by a grand parent to his
grandchild shall not oblige the parent of the latter to collate the donated property.
Art. 1066. Neither shall donations to the spouse of the child be brought to collation; but if they
have been by the parents to the spouses jointly, the child shall be obliged to bring to collation
one-half of the thing donated. (1040)
This is again an application of the principle in succession that a compulsory heir is obliged to
collate only the properties they received personally and in their name from his ascendants.
Art. 1067. Expenses for support, education, medical attendance, even in extraordinary illness,
apprenticeship, ordinary equipment, or customary gifts are not subject to collation. (1041)

Art. 1068. Expenses incurred by the parents in giving their children a professional, vocational
or other career shall not be brought to collation unless the parents so provide, or unless they
impair the legitime; but when their collation is required, the sum which the child would have
spent if he had lived in the house and company of his parents shall be deducted therefrom.
(1042a)

Please note that, except for customary gifts, the expenses enumerated in Articles 1067 are
expenses that by law the decedent is obliged to shoulder in fulfillment of his obligation to his
compulsory heirs. Thus, parents are obliged to pay the said expenses of their children. The said
expenses being the obligation of the testator, the amount thereof and customary gifts are not
subject to collation.
Article 1068 is self-explanatory.
Art. 1069. Any sums paid by a parent in satisfaction of the debts of his children, election
expenses, fines and similar expenses shall be brought to collation. (1043a)
This article is also self-explanatory.
Art. 1070. Wedding gifts by the parents, ascendants consisting of jewelry, clothing, and outfit,
shall not be reduced as inofficious, except insofar as they may exceed one-tenth of the sum
which is disposable by will. (1044)
This article is likewise self-explanatory.

Art. 1071. The same things donated are not to be brought to collation and partition, but their
value at the time of donation, even though their just value may not have been assessed.
Their subsequent increase or deterioration and even total loss or destruction, be it incidental
or culpable, shall be for the benefit or account of the donee. (1045a)
Please note that in collation only the value of thing donated or given by gratuitous title by the
testator during his lifetime to a compulsory heir is to be considered or added back to the
hereditary mass. The value of the thing should of course be determined at the time of the
perfection of the donation.
What do you mean by time of perfection? Is the time the donation was actually made by the
donor or the acceptance by the donee of the donation?
What is the controlling valuation? Is the value of the thing stated by the donor in the deed of
donation or the actual value thereof at the time of the donation?
Answer: The value of the thing donated as appearing in the deed of donation is not controlling
because the vanity of the donor may impel him to increase the value of the thing, or the wish to
avoid payment of taxes, registration fees and documentary stamp tax may impel him to lower
the valuation. Hence, the true value of thing must be probed by competent evidence at the time
of the donation.
The increase or decrease in the value of the thing donated, increment, deterioration and even

the total loss thereof shall be for the account and benefit of the donee because after his
acceptance of the donation he becomes the owner thereof.

Art. 1072. In the collation of a donation made by both parents, one-half shall be brought to the
inheritance of the father, and the other half, to that of the mother. That given by one alone shall
be brought to collation in his or her inheritance. (1046a)
This is self-explanatory.

Art. 1073. The donees share of the estate shall be reduced by an amount equal to that
already received by him; and his co-heirs shall receive an equivalent, as much as possible, in
property of the same nature, class and quality. (1047)
Art. 1074. Should the provisions of the preceding article be impracticable, if the property
donated was immovable, the co-heirs shall be entitled to receive its equivalent in cash or
securities, at the rate of the quotation; and should there be neither cash nor marketable
securities in the estate, so much of the other property as may be necessary shall be sold at
public auction.
If the property donated was movable, the co-heirs shall only have a right to select an
equivalent of other personal property of the inheritance at its just price. (1048)
Please note that under Articles 1073 and 1074 the law seeks not only equality of value but
also equality with respect to the nature, class and quality of the properties to be distributed to
the heirs of the decedent. Thus, if a lot situated in Forbes Park was given in a donation mortis
causa to one of the five surviving children of the decedent and if he has four other lots in the
same subdivision of equal size, then the said lots must be distributed also to the other heirs. If
perfect equality is not possible because it may happen that the decedent has no other property
of the same kind and quality as that of the thing donated, we then apply Article 1074.

Art. 1075. The fruits and interest of the property subject to collation shall not pertain to the
estate except from the day on which the succession is opened.
For the purpose of ascertaining their amount, the fruits and interest of the property of the
estate of the same kind and quality as that subject to collation shall be made the standard
assessment. (1049)
Reason why the donee should account for the fruits and interest of the donated property at
the time of the opening of succession despite the fact that he is already the owner thereof:
As owner of the property, the donee is entitled to all fruits and increments thereof because of

the attributes of ownership. At the moment of death of the donor, however, when the duty of the
donee to collate arises, the latters right over the property is modified. Since it is the donees duty
to bring back the value of the property to the hereditary mass which should be divided equally
between him and his co-heirs with all its fruits and interest, it is but just that the fruits,
increments and interest of the donated property be also included in the mass because he is
entitled to the fruits, increments and interest of the properties in the hereditary mass not
donated by the decedent.

Art. 1076. The co-heirs are bound to reimburse to the donee the necessary expenses which
he has incurred for the preservation of the property donated to him, though they may not have
augmented its value.
The donee who collates in kind an immovable, which has been given to him, must be
reimbursed by his co-heirs of the improvements which have increased the value of the property,
and which exists at the time the partition is effected.
As to works made on the estate for the mere pleasure of the donee, no reimbursement is due
him for them; he has, however, the right to remove them, if he can do so without injuring the
estate. (n)
Please note that according to Dr.Tolentino and the late Justice JBL Reyes, Article 1076
should not pertain to collation but to inofficious donation and should have been in the chapter
treating on reduction of donations, in the chapter of legitimes. I agree with their observation
because although article 1076 speaks of collation in kind, this
s strictly speaking not collation, but a returning in kind and the said articles applies when the
donation is totally reduced because it is completely inofficious and the donee either has no
money or does not desire to reimburse money.

Art. 1077. Should any question arise among the co-heirs upon the obligation to bring to
collation or as to the things which are subject to collation, the distribution of the estate shall not
be interrupted for this reason, provided adequate security is given. (1050)
Please note that disputes among heirs with respect to the obligation to collate may be
determined in the course of the testate or intestate proceedings. The final order of court having
jurisdiction of the proceedings shall be binding on the person raising the question and on the
heir. But bear in mind that pending the determination of the issue of whether there is a duty to
collate or not, the court can still order the distribution of the estate provided that that adequate
security is given by the heir required to collate.

Please be informed of the effects of the provisions of Art. 43, par. (5), Art. 44, Art. 50 and Art. 63,
par. (4) of the Family Code, quoted hereunder as follows on the law of succession:

Art. 43. The termination of the subsequent marriage referred to in the preceding article shall
produce the following effects:
(1) x x x
(2) x x x
(3) x x x
(4) x x x
(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to
inherit from the innocent spouse by testate and intestate succession.
Nota Bene: The subsequent marriage referred to in Art. 43 is a subsequent marriage entered
into by a married person whose spouse has been absent for four consecutive years.
Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be
void ab initio and all donations by reason of marriage and testamentary disposition made by one
in favor of the other are revoked by operation of law.
Art. 50. The effects provided for in paragraph (2), (3) (4) and (5) of Article 43 and in Article 44
shall also apply in proper cases to marriages which are declared void ab initio or annulled by
final judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation, partition and distribution of
the properties of the spouses, the custody and support of the common children, and the delivery
of their presumptive legitimes, unless such matters had been adjudicated in previous judicial
proceedings.
All creditors of the spouses as well as the absolute community or the conjugal partnership
shall be notified of the proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in
accordance with the provisions of Articles 102 and 129.
Art. 63. The decree of legal separation shall have following effects:
(1) x x x
(2) x x x
(3) x x x
(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by
intestate succession. Moreover, provisions in favor of the offending spouse made in the will of
the innocent spouse shall be revoked by operation of law (END)