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TITLE IV SUCCESSION

CHAPTER I

GENERAL PROVISIONS

What are the modes of acquiring ownership?

Article 712 provides for the legal modes of acquisition:

a. Occupation
b. Intellectual creation
c. Law
d. Donation
e. Testate and intestate succession
f. Tradition (In consequence of certain contracts)
g. Prescription

Thus, under the Civil Code, succession is one of the modes of


acquiring ownership.

The first three are original and the last four are derivative.

What is the difference between mode and title?

Mode is a way or process of acquiring or transferring ownership;


while title refers to the juridical act or deed which is not sufficient by
itself to transfer ownership but it provides a juridical justification for the
effectuation of a mode. Consequently, mode directly produces a real
right, while title serves only to produce a means or occasion for its
acquisition. In other words, mode is the cause, while title is the means.

Thus, if a seller sells his car to a buyer, the sale is the title while
the delivery (tradition) is the mode which makes the buyer the owner of
the ring. A title merely creates a personal right which could real right if
followed with delivery.

MODE TITLE

OCCUPATION SEIZURE PROPERTY SEIZED IS


WITHOUT A KNOWN
OWNER
INTELLECTUAL CREATION EMERGENCE OR ORIGINALITY OR NOVELTY
DISCOVERY
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LAW FORCE OF LAW CONCURRENCE OF


PREREQUISITE
CONDITIONS
DONATION FORMALITIES/DELIVERY AGREEMENT OF PARTIES

SUCCESSION DEATH LAW OR WILL

TRADITION DELIVERY AGREEMENT OF THE


PARTIES
PRESCRIPTION LAPSE OF PRESCRIBED POSSESSION IN THE
PERIOD CONCEPT OF AN OWNER

Note that in the law on succession, the title is also the mode.
Hereditary rights are transferred from the moment of death of the
decedent (Article 777). Delivery (tradition) is not a condition pre-requisite
to transfer ownership. Actual possession, however, may be exercised only
upon actual delivery (Article 1089; 1091).

What is succession?

In its Generic or General Sense:

Succession (from the Latin suband cedere, meaning the placing


of one person in the place of another) is dened as the transmission of
rights and properties from one person to another. In this sense,
succession may be inter vivos or mortis causa, depending upon whether
the transfer is effective during the lifetime (inter vivos) of the giver, or
after his death (mortis causa). An example of succession inter vivos
occurs in an ordinary donation. Succession mortis causa is what is
discussed in this Title IV.

In its Technical Sense:

Succession is restricted to succession mortis causa. The


succession referred to in our Civil Code, in Title IV and in Article 774 is
succession mortis causa. It is in this limited sense that succession
denotes the transfer of title to property under the laws of descent and
distribution, taking place as it does, only on the death of a person.

Codal definition:

Article 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 will or by operation of law.

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Succession, may, therefore, be defined as the mode of acquiring


ownership, by virtue of which the inheritance of a person is transmitted
to us, either according to his express will and words, or, if by some
natural or accidental circumstances he has made no will, according to
his presumed will provided for by law as analogous to what he would
have made had he executed one. It is a mode of acquisition, by virtue of
which one succeeds to the universality of the transmissible rights, active
and passive, of a person who has died.

What are the elements of succession as defined by the Civil


Code?

1. It is a mode or way of acquiring ownership;


2. There is transmission of property, rights and obligations to another
or others, that is, to his heirs and other successors mortis causa.;
3. As to transmission of obligations, it is only to the extent of the
value of the inheritance;
4. The cause of transmission is the death of the decedent;
5. The procedure of transmission may be by will or operation of law;
6. The acceptance of the inheritance by the heir which is understood
even if not expressly stated in the Article. 1

What are the bases for Succession?

(a) The natural law which obliges a person to provide for those he
would leave behind. This is a consequence of family relations; a
recognition of the natural law of consanguinity, or of blood, and the
natural affection of a person toward those nearest him in relationship.
(Henry v. Thomas, 20 N.E. 519, 118 Ind. 23).

(b) A socio-economic postulate which would prevent wealth from


becoming inactive or stagnant. This is essential from an economic
standpoint to enable social economy to be rm (4 Castan 148).

(c) The implicit attributes of ownership which would beimperfect, if


a person is not allowed to dispose of his property, such disposal to take
effect when he is already dead. This is a consequence of rights to
property (See Guevara v. Guevara, et al., L-5405, Jan. 31, 1956).

What are the means employed by the present Code to attain


the principles on succession?

1Article 533 NCC: The possession of hereditary property is deemed transmitted


to the heir without interruption, and from the moment of death of the decedent, in case
the inheritance is accepted. One who validly renounces an inheritance is deemed never
to have possessed the same.

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One of the underlying principles of the present law on succession


is the philosophy of the socialization of ownership, to attain the stability
of the social order.

These principles are employed in the following provisions:

1. The purification of the system of private ownership of its


abuses; thus, the prohibition in donations inter vivos, based on
considerations of morality, are expressly made applicable to
testamentary succession (Article 1028);

2. The closing of those channels upon which wealth has flowed in


torrents from generation to generation of a particular family;
thus, fideicommissary substitutions have been limited to one
degree (Article 863), and the free portion has been increased
from one-third of the estate of the decedent when children and
descendants survive (Article 888).

3. The emancipation of innocent persons from the bondage of


undue conservatism which has denied them the rights to share
in the estate of their parents; thus, illegitimate children, who
did not have successional rights under the old Code, have been
given successional rights in the present (Articles 887 and 988).

4. The elimination of distant relatives who may succeed to


property to the accumulation of which they have not
contributed anything; thus the right to succeed without a will is
limited to relatives within the fifth civil degree (Article 1010),
while under the old Code, it extended to the sixth degree.

5. The staying of the dead hand to prevent it from meddling with


the affairs of the living; thus, the new Code has eliminated the
substitutions known as pupilar and ejemplar, by which a parent
or ascendant may appoint substitutes for their children or
descendants who may die without making a valid will.

What are the fundamental changes in the new Code?

1. Greater freedom is given to the testator in the choice of the form for
his will or testament. While under the prior legislation, only
attested wills were recognized, the new Code permits also the
execution of holographic wills, which are written entirely by the
testator, without witnesses or attestation.

2. Greater facility in the probate of wills is provided by the


introduction of the system of probate during the lifetime of the

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testator. Under the prior legislation, probate can be effected only


after the death of the testator.

3. The surviving spouse is given a better position in the law of


succession. Her legitime has been changed from a mere usufruct to
full ownership. In the law of intestatesuccession, she has been
raised to a higher degree in the order of succession.

4. In the legitime of legitimate children and descendants, the mejora


or betterment, consisting of one-third of the estate of the parents
or ascendants, has been abolished. (The system of betterment is
specially a Spanish institution. It is a peculiar concept in Spanish
law, in that it forms part of the long legitime and may be given only
in favor of legitimate children and descendants.)

5. The reservas and reversions, with the exception of the reserve


troncal, have been abolished.

What provisions of the law determine the effectivity of the


new rights granted under the new Code?

The following transitional provisions in the new Civil Code which


took effect on August 30, 1950 determine the effectivity of the new rights
granted under the new Code:

1. Article 2253. The Civil Code of 1889 and other previous laws
shall govern rights originating, under said laws, from acts done or events
which took place under their regime, even though this Code may regulate
them in a different manner, or may not recognize them. But if a right
should be declared for the first time in this Code it shall be effective at
once, even though the act of event which gives rise thereto may have
been done or may have occurred under the prior legislation, provided
said new right does not prejudice or impair any vested or acquired right,
of the same origin.

Illustration:

Facts: Maria Uson was the lawful wife of Faustino Nebreda who
upon his death in 1945 left five parcels of land. Faustino Nebreda left no
other heir except his widow, Maria Uson. Defendant Maria Del Rosario
was the common law wife of Nebreda with whom she has several
illegitimate children, the other defendants. Maria Uson file the present
action for the recovery of the ownership and the possession of said lands
claiming that when Nebreda died his common law wife took possession of
said lands. The defendant contended that under the new Civil Code,
which took effect in 1950, the illegitimate children are given the status

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and rights of natural children and are entitled to the successional rights
which the law accords to the latter and because these successional rights
were declared for the first time in the new Civil Code, they shall be given
retroactive effect even though the even which gave rise to them may have
occurred under the prior legislation.

Ruling: There is no merit in this claim. Article 2253 above referred


to provides indeed that rights which are declared for the first time shall
have retroactive effect even though the event which gave rise to them
may have occurred under the former legislation, but this is so only when
the new rights do not prejudice any vested or acquired right of the same
origin. Thus, said article provides that if a right should be declared for
the first time in this Code, it shall be effective at once, even though the
act or event which give rise thereto may have been done or may have
occurred under the prior legislation, provided said new right does not
prejudice or impair any vested or acquired right of the same origin. As
already stated in the early part of this decision, the right of ownership of
Maria Uson over the lands in question became vested in 1945 upon the
death of her late husband and this is so because of the imperative
provision of the law which commands that the rights to succession are
transmitted from the moment of death. The new right recognized by the
new Civil Code in favor of the illegitimate children of the deceased
cannot, therefore, be asserted to the impairment of the vested right of
Maria Uson over the lands in dispute.

2. Article 2263: Rights to the inheritance of a person who died,


with or without a will, before the effectivity of this Code, shall be
governed by the Civil Code of 1889, by other previous laws, and by the
Rules of Court. The inheritance of those who, with or without a will die
after the beginning of the effectivity of this Code, shall be adjudicated
and distributed in accordance with this new body of laws and by the
Rules of Court; but the testamentary provisions shall be carried out
insofar as they may be permitted by this Code. Therefore, legitimes,
betterments, legacies and bequests shall be respected; however, their
amount shall be reduced if in no other manner can every compulsory
heir be given his full share according to this Code.

The Report of the Code Commission explains the rule, to wit:

The decisive fact which gives origin to the right of the heirs,
devisees and legatees is the death of the decedent. This is the basis of the
foregoing rule. No heir, devisee or legatee has any vested right until the
moment of such death.

InYap vs. Court of Appeals, et al., G.R. No. L-40003 October 28,
1986, the Supreme Court held:

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We have accordingly ruled that the rights to the inheritance of a


person who died before the effectivity of the New Civil Code shall be
governed by the Civil Code of 1889, by other previous laws and by the
Rules of Court (See Vidaurrazaga v. Court of Appeals, 91 Phil. 492;
Canales v. Arrogante, 91 Phil. 9; and Morales, et al. v. Yaez, 98 Phil.
677), while the rights to the inheritance of a person who died after the
effectivity of the New Civil Code shall be governed by the New Civil Code
(Del Prado v. Santos, 18 SCRA 68).

What is the difference between a decedent and a testator?

Article 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.

Thus:

a. Decedent is a term used in Civil Law when reference is made to a


person who died with property to transmit to his heirs through
succession. The word is applicable whether or not the deceased
executed a will. Hence decedent is a general term for both
situations.

b. Testator is a term used only in reference to a decedent who left a


valid will. A decedent who did not leave any will cannot be called a
testator.

What are the subjective elements of succession?

The subject elements of succession consist of the decedent and


those who are called to succeed such decedent either by will or by
operation of law, such as heirs, devisees or legatees.

What includes inheritance?

Inheritance in Latin - hereditas; in Spanish - herencia

Article 776:The inheritance includes all the property, rights


and obligations of a person which are not extinguished by his
death.

Thus, inheritance includes:

a. Property;
b. Transmissible rights not extinguished by death;

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c. Transmissible obligations not extinguished by death; and


d. All property which have accrued thereto since the opening of the
succession (death of the decedent). 2

What is the objective element of succession?

The objective element of succession is what is known as the


inheritance.

What is meant by inheritance? Distinguish it from succession.

The inheritance may be defined as the universality of all properties,


rights and obligations constituting the patrimony of the decedent which
are not extinguished by his death and which are available for
distribution among his heirs after settlement or liquidation.

Succession is the legal mode by which such property, rights and


obligations are transmitted. In other words, the inheritance is merely the
objective element of succession.

Inheritance distinguished from succession and patrimony

Inheritance refers to the totality of the decedents property, rights


and obligations transmitted to his successor, while succession refers to
the legal mode or manner by which they are acquired or transmitted,
thus the first is the objective of the second.

Patrimony refers to the aggregate of all juridical relations of a


person susceptible of economic valuation, while inheritance refers to the
mass or totality of the patrimony of the decedent, which is not
extinguished by his death, thus the first is broader than the second.

What is the restricted concept of inheritance?

Under our law, no succession shall be declared unless and until a


liquidation of the assets and debts left by the decedent shall have
been made and all his creditors fully paid. Until a final liquidation is
made and all debts are paid, the right of the heirs to inherit remains
inchoate. It partakes of the nature of a mere hope or expectancy and
nothing more. This is so because under our rules of procedure,
liquidation is necessary in order to determine whether the or not the
decedent has left any liquid assets which may be transmitted to his
heirs. 3

2Article 781 NCC


3 Centenera vs. Sotto, 78 Phil. 432.

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Under the present legal system, such rights and obligations as


survived after death have to be exercised and fulfilled only be the estate
of the deceased. 4

Consequently, the inheritance may be more accurately defined as


the universality of all inheritance and transmissible rights and
obligations constituting the patrimony of the decedent which are not
extinguished by his death and which are available for distribution among
those who are called to succeed after settlement and liquidation.

What are examples of rights not extinguished by death?

Examples of rights not extinguished by death and whichtherefore


are part of the estate:

1) Right to bring or continue an action for forcible entry or


unlawful detainer.

2) Right to compel the execution of a document necessary for


convenience, provided that the contract is valid and enforceable under
the Statute of Frauds (See Araneta v. Montelibano, 14 Phil. 117).

3) Right to continue a lease contract either as lessor or lessee,


unless otherwise provided for in the contract. (Of course, it is understood
here that if the lessee-heir continues as lessee, he should still pay the
rents as they fall due from time to time, even if theinheritance has
already disappeared, the obligations being his, and no longer the
decedents.

4) Property right in an insurance policy (the interest of a


beneciary in a life insurance policy) is a vestedinterest (provided, the
designation of the beneciary is irrevocable), and as such is
transmissible by hereditary succession, unless by the terms of the policy
it is otherwise provided (Belden v. Belden, 183 N.Y.S. 350; Anderson v.
Groesbeck, 26 Colo. 3). Therefore, generally, the life insurance policy or
the right to the indemnity belongs to the beneciary, transmissible to his
own heirs; and not to the insured, or the latters own heirs (See Carter v.
First National Bank, 237 Ala. 47; Cook v. Cook, 17 Cal. 2d. 639).

A has a child B who has a child C. B is indebted to a stranger,


but dies before he pays the same. A then died, leaving C as heir. In
As intestate proceedings, the stranger presents his claim for the
credit. Is C bound to pay for the debt, or will As estate answer?

4Limjoco vs. Intestate Estate of Pedro Fragante, 80 Phil. 776.

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Neither As estate nor C is liable, for neither contracted the


debt,nor may it be said that C is inheriting from B. C in this case, is
inheriting only from A. Therefore, the creditor-stranger must shoulder
the loss himself (Ledesma v. McLachlin, 66 Phil. 547).

What rights and obligations are extinguished by the death of


the decedent?

1. Those arising from marriage, either with respect to the persons or


as regards the property of the spouses.
2. The action for legal separation, which belongs only to the innocent
spouse.
3. The action to annul marriage.
4. The obligation to give legal support, except in cases expressly
provided by law.
5. The right of patria potestas.
6. The right of a guardian.
7. The right of usufruct.
8. The right of the 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.
9. The rights arising from agency; but not the effects of the agency
already executed.
10. Criminal liability.
11. Right to claim acknowledgment or recognition as a natural
child (Conde v. Abaya, 13 Phil. 240).
12. Right to hold public or private ofce or job (Hu Niu v.
Collector of Customs, 36 Phil. 433).

What are the general rules to determine whether or not rights


and obligations are transmissible?

1. Rights which are purely personal, not in the inaccurate equivalent


of this term in contractual obligations, 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.

2. 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.

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3. Rights of obligation are by nature transmissible and may


constitute part of the inheritance, both with respect to the rights of
the creditor and as regards the obligations of the debtor.
Exceptions: (1) those which are personal, in the sense that the
personal qualifications and circumstances of the debtor have been
taken into account in the creation of the obligation; (2) those that
are instransmissible by express agreement or by the will of the
testator; and (3) those that are instransmissible by express
provision of law, such as life pensions given under contract.

When are successional rights transmitted?

Article 777.The rights to the succession are transmitted


from the moment of the death of the decedent.

It is understood of course that there is acceptance of the


inheritance. 5

The time of death is the determining point when the heirs acquire
a definite right to the inheritance whether such right be pure or
conditional (Rubio vs. Court of Appeals, 153 SCRA 183).

What is the causal element of succession?

From the very definition of succession as enunciated in Article 774,


it is evident that it is the expressed will of the decedent as manifested in
his last will and testament or his presumed will as provided by law which
is the efficient cause or causal element of the transmission of
successional rights, while the fact of his death is the condition.

It must be observed, however, that the fact of death with respect to


succession is more than a condition; it is the very reason of succession
itself- as a matter of fact, it is the very reason for the manifestation of the
will of the decedent. Hence, we can very well say that the death of the
decedent is not only the condition, but also the final cause of the
transmission of successional rights.

Article 1042 complements Article 777. (Article 1042: The effects of


the acceptance or repudiation shall always retroact to the moment of the
death of the decedent.)

Notes:

5Vide Article 533 NCC

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The right to the succession is not transmitted; it becomes vested.


To say that it is transmitted upon death implies that before the
decedents death, the right to the succession was possessed by the
decedent (which is absurd). To say it vests upon death implies that
before the decedents death the right is merely inchoate (which is
correct).

Article 777 merely specifies the time of vesting of the successional


right. It presumes that the person succeeding 1) has a right to succeed
by legitime (compulsory succession), or by law (intestate succession); 2)
has the legal capacity to succeed; and 3) accepts the successional
portion.

The vesting of the right occurs immediately upon the decedents


death; i.e. without a moments interruption. From this principle, obvious
consequences flow, thus:

a. During the lifetime of the decedent, the right of the heirs is a


mere expectancy. Until the death had supervened, the right to
succession is merely speculative for in the meantime, the law
may change, the will of the testator may vary, or the
circumstances may be modified to such an extent that he who
expects to receive property may be deprived of it. Indeed, the
moment of death is the determining point when an heir
acquires a definite right to the inheritance;
b. The right of the heirs is vested from the moment of death even
before judicial declaration;
c. Previous declaration of heirship is not essential;
d. Liquidation is not necessary;
e. Tax obligations accrue at the moment of death of the decedent;
f. The law in force at the time of the decedents death will
determine who the heirs should be. (Vide: Uson vs. Del Rosario,
92 Phil. 530);
g. Ownership passes to the heir at the very moment of death, who
therefore, from that moment acquires the right to dispose of his
share (Vide:Jose de Borja vs. Tasiana vda de Borja, 46 SCRA
577); and
h. The heirs have the right to be substituted for the deceased as
party in an action that survives (Vide:Bonilla vs. Barcena, 71
SCRA 491).

X, Y, Z are the heirs of A who died, leaving an estate of ten


hectares. Before partition, can X sell his share without the consent
of Y and Z? Why?

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Yes, because his hereditary share was transmitted from the


moment of death of A. There is no legal bar therefore, for X to sell his
share immediately even if the actual extent of his share has not been
determined. (Testate Estate of Tangco; Jose de Borja vs. Tasiana vda de
Borja, 46 SCRA 577)

A died without a will in 1960, survived by three legitimate


children B, C and D. Immediately, upon the death of A, B sold his
entire right to the inheritance to X, a third person for 20, 000.00. Is
the sale valid?

Yes.

Suppose that the hereditary estate was finally partitioned in


1962. According to the project of partition, B, C and D shall be
entitled to 30, 000.00 each. D however repudiated his share of the
inheritance. Under the law, the 30, 000.00, which would have
passed to him, shall now accrue to B and C in equal shares. Who
shall now be entitled to the 15, 000 accruing to B?

X is now entitled to the 15, 000.00.In other words, he can now


compel the estate of A to pay to him not only 30, 000 to which B is
entitled as a legal heir, but even the 15, 000 to which B is entitled by
right of accretion. This is because of the principle of retroactivity as
applied to acts and acceptance or repudiation (Art. 1042 NCC).

What law governs distribution of estate?

The law in force at the time of death of the deceased shall govern
the distribution of his estate and not the law at the time of distribution.

What are the rules in case of presumptive death?

The principle in Article 777 applies not only to actual death but
even to presumptive death. This is clear from the provisions of Articles
390 and 391.

Thus, according to Articles 390 and 391, in order than an absentee


is presumed dead for the purpose of opening his succession, it is
necessary that he must have been absent for at least ten years, it being
unknown whether or not he still lives.

This rule however, is subject to the following exceptions:

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First, if the absentee disappeared after the age of seventy-five


years, in which case an absence of five years shall be sufficient in order
that his succession may be opened.

Second, if the absentee disappeared under any one of the three


circumstances enumerated in Article 391, in which case an absence of
four years shall be sufficient.

The three circumstances under Article 391 are:

1. A person on board a vessel lost during a sea voyage, or an


aeroplane which is missing,
2. A person in the armed forces who has taken part in war,
3. A person who has been in danger of death under other
circumstances.

What is the nature of the presumption in ordinary and


extraordinary absences?

In both ordinary and extraordinary absences, the succession is


only of provisional character because there is always the chance that the
absentee may still be alive. Moreover, the presumptions regarding the
time of death are rebuttable, that is, proof may be presented as to when
death actually occurred.

What is the effect of the absentees return or appearance?

If the absentee appears, or without appearing his existence


isproved, he shall recover his property in the condition in which it may
be found, and the price of any property that may have been alienated or
the property acquired therewith; but he cannot claim either fruits or
rent.

Suppose the heir had already spent the money (for food, for
example), is there an obligation to reimburse its value?

It is submitted that there is no obligation to reimburse, inasmuch


as the consumption had been made in good faith. The recovery may not
be made anymore, however, if the heir, devisee, or legatee has
acquiredthe property through prescription (extraordinary prescription in
view of the lack of a just title, there being no true succession).

At what precise moment will the transmission of successional


rights occur in case of presumptive death?

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As applied to the case of normal or ordinary presumptive death,


will it be at the beginning of the ten year period or expiration of such
period, and as applied to the case of abnormal or extraordinary
presumptive death, will it be at the beginning of the four year period or at
the end or expiration of such period?

A distinction must be made between the fact of death and the


moment of death. These presumptions which are enunciated in the Civil
Code only tell us when the absentee is presumed dead; they do not tell
us when the absentee exactly died. Hence, as a general rule, the time
when the absentee died must be proved in accordance with the ordinary
rules of evidence. If this is not possible, then he is deemed to have died
at the time of the expiration of the period designated by law. There is,
however, an exception to this rule, and that is when the absentee
disappeared under any one of the extraordinary circumstance
enumerated under Article 390 of the Civil Code. Because the absentee
disappeared under danger of death, in such case, he is presumed to have
died at or about the time when he disappeared.

What are the requisites before rights may be transmitted


mortis causa?

a. Death of the person whose succession is in question, whether


actual or presumptive 6 (ordinary 10, 5 years; extra ordinary 4
years) (Succession takes place at the time of disappearance,
however, actual division takes place at the end of the required
period);
b. The express will of the testator, within the limits prescribed by law,
calling certain persons to succeed him or in the absence of a will,
the provision of law prescribing the presumed will of the decedent;
c. Rights or properties are transmissible;
d. The person called to succession must be alive (not predeceased), he
must be accept the inheritance (no repudiation) and he must be
capacitated (no disinheritance) to inherit.

Problem on Transitional Provisions:

Under the old Civil Code, spurious children were not entitled
to inherit even if their liation had been judicially decreed or
declared. Under the new Civil Code, said children if recognized
voluntarily or by judicial decree are entitled to inherit.(The new Civil
Code took effect August 30, 1950; Lara v.Del Rosario, L-6339, Apr. 30,
1954; see also Paulino v. Paulino, 3 SCRA 730 and Velez and Bato v.

6Article 391 NCC

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2012 Notes Compilations onWills and Succession 16

Velez, L-28873, July 31, 1973).If a spurious child was born in 1938,
but his father died in 1951, will said child inherit?

Yes, he will inherit so long as he can prove his liation because the
rights to the succession are transmitted or effected only from the
moment of death -1951. Thus, since it is the fathers death that gave rise
to the succession, and since the death occurred when the new Civil Code
was already effective, it is certain that the spurious child should inherit,
despite his being born under the old Code - there being no vested right of
the legitimate children that would be prejudiced. (See Bulos v. Tecson, L-
18286, Oct. 31, 1962; Montilla v. Montilla, L-14462, June 30, 1961; Tecson
v. del Rosario, L-4962, Jan. 29, 1953).

Had the father died before August 30, 1950, would the
spurious child be entitled to inherit?

Had the father died before August 30, 1950, the spurious child
would not be entitled to inherit because since this time, vested rights of
the legitimate children would be prejudiced. This is true even if there are
settlement proceedings in court, resulting in the delivery of the property
to the heirs only after the new Civil Code had become effective. (See
Jayme v. Gamboa, 75 Phil. 479). After all, the transfer of ownership takes
place not after delivery but from the moment of death, succession being
by itself (and without the necessity of delivery) a mode of acquiring
ownership. Upon the other hand, the rights to the inheritance of a
person who died, with or without a will, before the effectivity of the new
Civil Code shall be governed by the Civil Code of 1889, by other previous
laws and by the Rules of Court. (Members of the Cult of San Miguel
Arcangel v. Narciso, L-24843, July 15, 1968)

NOTE: In the case of Lilia Juana Barles, et al. v. DonAlfonso Ponce


Enrile, L-12894, Sep. 30, 1960, the Supreme Court held that while the
Civil Code nowhere species the period within which the action to
investigate spurious paternity should be brought, still the action is
similar to the action for compulsory recognition of natural children.
Both are actions whereby the child may prove that the defendant is
infact the father or mother of the plaintiff, notwithstanding the refusal of
the parent to admit the generative link. Generally, the investigation
should take place during the lifetime of the putative parent, for only the
parent is in a position to reveal the true facts surrounding the claimants
conception. Logically, therefore, the same time limitation, in the absence
of an express legal provision to the contrary, should apply to both
actions.

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2012 Notes Compilations onWills and Succession 17

T died, providing in his will that ten years after his death, H
would become owner of his (Ts) properties. Should the inheritance
tax be computed at Ts death or 10 years later?

The tax at Ts death based on the value of the estate must be


computed as of this time and not ten years later. Ifdeath is the
generating source from which the power of the state to impose
inheritance taxes takes its being, and if upon the death of the decedent,
succession takes place and the right of the state to tax vests instantly,
the tax should be measured by the value of the estate as it stood at the
time of the decedents death, regardless of any subsequent contingency
affecting value or any subsequent increase or decrease in value.

NOTE:

(a) The inheritance (estate) tax is a tax not on theproperty itself but
on the transmission (transfer or devolution) of the property (61 CJ 1952).

(b) The date the inheritance (estate) tax accrues is distinct from the
date on which it must be paid (Lorenzo v. Posadas, supra).

(c) The estate tax is a virtual charge on the giver (the deceased) for
the transmission of the property; the inheritance (now changed to estate)
tax is a charge on the recipient (the heirs, devisees, and legatees). The
inheritance tax is paid on what is left after the estate tax has been
deducted from the residuary estate.

What are the kinds of succession?

Article 778.Succession may be:

(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed.

Article 779. Testamentary succession is that which results


from the designation of an heir, made in a will executed in the
form prescribed by law.

Article 780. Mixed succession is that effected partly by will


and partly by operation of law.

Thus, succession may be classified as follows:

a. Compulsory succession to the legitime (this prevails over all


kinds);

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2012 Notes Compilations onWills and Succession 18

b. Testamentary (Article 778) which results from the designation of


an heir made by the testator in a will executed in the form
prescribed by law (Article 779);

c. Legal or intestate (Article 778) where the decedent did not execute
a will; or if there was a will, it is void; or there may be succession
by operation of law;

d. Mixed (Article 778) that which is effected partly by will and partly
by operation of law (Article 780); and

e. Contractual (Article 130) that which is effected when the future


spouses donate to each other in their marriage settlement their
future property to take effect upon the death of the donor to the
extent laid down by the provisions of the civil code relating to
testamentary succession. This is by way of exception of par. 2,
Article 1347. 7 However, it should be executed by the formalities of
a will. 8

Is it possible for an heir to havedual status?

If in a will, a compulsory heir is given more than his legitime, he


assumes a dual status: (a) Insofar as his legitime is concerned, he is a
compulsory heir. (b) Insofar as the excess is concerned, he is a voluntary
heir. This distinction is important because if a compulsory heir dies
ahead of the testator, his legitime is inherited by his own child. On the
other hand, the child of a voluntary heir who predeceases or dies ahead
of the testator gets nothing from said testator (Article 856).

What does inheritance include?

Article 781: The inheritance of a person includes not only


the property and the transmissible rights and obligations existing
at the time of his death, but also those which have accrued thereto
since the opening of the succession.

Thus, according to Article 781 in conjunction with Article 776, the


inheritance of a person includes:

7Article 1347. x x x No contract may be entered into upon future inheritance

except in cases expressly authorized by law.


8 Article 84. If the future spouses agree upon a regime other than the absolute

community of property, they cannot donate to each other in their marriage settlements
more than one-fifth of their present property. Any excess shall be considered void.
Donations of future property shall be governed by the provisions on
testamentary succession and the formalities of wills.

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2012 Notes Compilations onWills and Succession 19

1. All of his property which are existing at the time of his death (note
however that this can only refer to those properties which are
available for distribution among the persons called to the
inheritance after settlement or liquidation);
2. All of his transmissible rights and obligations which are existing at
the time of his death and not extinguished by his death; and
3. All of the property and rights which have accrued to the hereditary
estate since the opening of the succession.

What are intransmissible rights?

They are rights extinguished upon the death of the decedent. The
heirs could not succeed to intransmissible rights.

What is meant by after-acquired property?

Properties not only acquired between the period of the execution of


the will and the death of the testator, but also accruing property until the
distribution of the estate.

Note however that if the decedent died with a valid will, the after-
acquired property shall not pass to the designated heir unless the same
is expressly stated in the will or the intention clearly appears. 9 When the
testator used general terms in the disposition of his property such as my
entire estate, all my property, etc. the intention to pass after-acquired
property is deducible in the absence of the contrary context.

What are examples of after-acquired properties?

a. Accretions like alluvial deposits


b. Interests on credits

These are accretions and accessions. However, they are not strictly
inherited for they form part of the estate only after the heirs become the
owners thereof, hence, properly speaking, they are acquired by accretion
as an incident of ownership under the law, and not by succession.
Property acquired by the testator between the time the will is made and
the time he dies, is not given to the designated heir unless the contrary
has been expressly provided. Such property is acquired prior to the
death, not afterwards.

Defenders of the Civil Code, however, maintain that since such


property or right which may have accrued to the hereditary estate since
the opening of the succession is subject to the payment of debts of the

9Article 793 NCC

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2012 Notes Compilations onWills and Succession 20

decedent, in the same way as any existing property or transmissible


rights originating from such decedent, and since what will actually be
distributed to the persons who are called to the inheritance either buy
will or by operation of law will be the net remainder or residue of the
estate, therefore, we must include in the inheritance all property and
transmissible rights which may have accrued thereto since the opening
of the succession.

The testator gives a legacy of a sum of money deposited in a


bank to A, and names B as his heir to the rest of his estate. After
the death of the testator, and pending the distribution of his estate,
interest accrues on the sum which is given as legacy. Who owns the
interest?

The interest goes to the legatee A, and not to the heir B; it does not
form part of the inheritance, but it is acquired by right of accretion and
belongs to A, who owns the principal, which is the sum upon which the
interest accrues.

Are heirs liable for the personal debts of the decedent? Up to


what extent may an heir inherit obligations of his predecessor-in-
interest?

The heirs are only entitled to get what remains in the inheritance
after payment of all obligations. However, the heirs are not liable for the
debts of the decedent which debts must be paid or charged against the
property left by the deceased. And if this property is not enough to defray
all the indebtedness, the heirs are not liable to pay the balance. (Pavia
vs. Dela Rosa, 8 Phil. 70; Suilong & Co. vs. Chio Tayson, 12 Phil. 1;
Centeneral vs. Sotto, 78 Phil. 432) Thus, the heir may inherit obligations
but only to the extent of the value of the inheritance. The heir cannot be
required to pay more than what he gets. (Nacar vs. Nistal, 119 SCRA 29)
It is the estate of the decedent, instead of the heirs, who is vested and
charged with his rights and obligations, which survive after his death.
For this purpose, it has been held that it is the estate, rather than the
heir, which must be considered the decedents personality.

Are monetary obligations which the decedent incurred during


his lifetime transmissible to the heirs so that the latter may be
charged directly for the payment thereof?

No. Such monetary obligations are intransmissible. They must be


liquidated in the testate or intestate proceedings (Rule 87, Section 5,
Rules of Court) While the decedent is dead, nevertheless, his estate is
considered a juridical person with the right to sue and be sued through
the executor or administrator as the case may be. Heirs are the

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2012 Notes Compilations onWills and Succession 21

continuity of the juridical personality of the decedent and as such can


file an action to protect the latters estate. Hence, under our system of
procedure for the settlement of the estate of deceased persons, monetary
obligations of the decedent can only be charged against his estate and
not against his heirs.

Literally construed, however, money obligations of the deceased,


under Article 774, pass to the heirs, to the extent that they inherit from
him. Seemingly, therefore, this article mandates that the heirs receive the
estate, and then pay off the creditors. Philippine procedural law,
however, influenced by the common-law system, has laid down a
different method for the payment of money debts, which is found in
Rules 88 to 90 of the Rules of Court. It is only after the debts are paid
that the residue of the estate is distributed among the successors. 10
In our system, therefore, money debts are, properly speaking, not
transmitted to the heirs nor paid by them. The estate pays them; it is
only what is left after the debts are paid that are transmitted to the heirs.

Are rights arising from obligations or rights of obligations


transmissible?

Generally, rights arising from obligations or rights of obligations


are transmissible in character. Consequently, they may be included in
the inheritance.

Excepted from this rule are:

1. Those arising from contracts which are by their nature


intrasmissible;

2. Those which are made intransmissible by agreement of the


parties; and

10Rule 90, Sec. 1. When the order for the distribution of residue made. When
the debts, funeral charges, and expenses of administration, the allowance to the widow,
and inheritance tax, if any, chargeable to the estate in accordance with law, have been
paid, the court, on the application of the executor or administrator, or of a person
interested in the estate, and after hearing upon notice, shall assign the residue of the
estate to the person entitled to the same, naming them and the proportions, or parts, to
which each is entitled, and such persons may demand and recover their respective
shares from the executor or administrator, or any other person having the same in his
possession. If there is a controversy before the court as to who are the lawful heirs of
the deceased person or as to the distributive shares to which person is entitled under
the law, the controversy shall be heard and decided as in ordinary cases.
No distribution shall be allowed until the payment of the obligations above
mentioned has been made or provided for, unless the distributes, or any of them, give a
bond, in a sum to be fixed by the court, conditioned for the payment of said obligations
within such time as the court directs.

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3. Those which are expressly made instransmissible by


operation of law.

Thus, if the decedent is the lessor in a contract of lease with a


definite period, his heirs will inherit the obligation to respect the lease.
Similarly, in a contract of sale, the heirs are obligated to deliver the
property sold by their predecessor in interest to the buyer. (Pamplona
vs. Moreto, 96 SCRA 725) 11

In the case of Estate of Hermandy vs. Luzon Surety Co., Inc., 100
Phil. 389, it was held that:

The binding effect of contracts upon the


heirs of the deceased party is not altered by the
provision of our Rules of Court that money debts
of a deceased must be liquidated and paid from
his estate before the residue is distributed
among said heirs (Rule 89). The reason is that
whatever payment is thus made from the estate
is ultimately a payment by the heirs or
distributes, since the amount of the paid claim
in fact diminishes or reduces the shares that the
heirs would have been entitled to receive. Under
our law, therefore, the general rule is that a
partys contractual rights and obligations are
transmissible to the successors. It must,
however, be made clear that the heirs are liable
only to the extent of the value of their
inheritance.

Other obligations which are transmissible or chargeable against


the heirs but only to the extent of the property which they may have
received from the decedent: those arising by operation of law from
patrimonial rights which are adjudicated to the heirs after liquidation of
the estate, such as those connected with the ownership, possession or
real easements, as well as those arising from contracts the object of
which is the delivery of a thing other than money.

Does the body or mortal remains of the decedent form part of


the inheritance?

11Article 1311. Contracts take effect only between the parties, the assigns and
heirs, except in case where the rights and obligations arising from the contract are not
transmissible by their nature, or stipulation or by provision of law. The heirs are not
liable beyond the value of the property received from the decedent.

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The human corpse is not a property and is therefore not part of the
estate. This is without prejudice to RA 349, as amended by RA 1056
allowing under certain conditions the granting to certain entities of a
persons organs after death.

Under Act No. 349, as amended by R.A. 1056, a person may validly
grant to a licensed physician, surgeon, known scientist, or any medical
or scientific institution, any organ of his body, and to utilize the same for
medical, surgical or scientific purposes.

The duty and right to make funeral arrangements are vested in the
relatives of the deceased, in accordance with the order in which they are
obliged to support him. If there is a surviving spouse, he or she is given
priority over the next of kin (Almeida vs. Carrillo, 67 Phil. 92).

What is the difference between an heir, devisee and legatee?

Article 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 of real and personal
property are respectively given by virtue of a will.

Hence:

1. Heirs succeed by universal title, that is, to all or fraction or aliquot


part of the properties, rights and obligations.

2. While there can be heirs in either testate, legal or mixed


succession, legatees and devisees can exist only in testamentary
succession;

3. The heir represents the juridical personality of the deceased so


that he acquires not only his property and rights but also his
obligations not extinguished by death but only to the extent of the
value of their inheritance, while a devisee or legatee does not
represent the personality of the deceased regardless of the quantity
or value of the devise or legacy;

4. The heir inherit an indeterminate quantity of inheritance the value


of which cannot be determined or fixed until the inheritance is
liquidated, while the devisee succeeds to a determinate thing or
amount;

5. The heir succeeds to the remainder of the estate after all debts,
devises and legacies have been paid, while a devisee succeeds only
to the definite thing or amount bequeathed;

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2012 Notes Compilations onWills and Succession 24

6. The heir succeeds by general right, while the devisee succeeds by


special or particular title; and

7. The heir who succeeds by operation of law must be a relative while


the devisee may be a relative or not.

What is the importance of the distinction between heirs on the


one hand, and legatees and devisees on the other?

1. In the case of preterition (omission of a compulsory heir in the


inheritance), an instituted voluntary heir gets nothing, but a
devisee or legatee still gets the property given as long as the
legitime is not impaired (Article 854);

2. In case of imperfect or defective disinheritance, the effect is to


annul the institution of heirs to the extent that the legitime of the
disinherited heir is prejudiced, but legacies and devisees shall be
valid insofar as they are not inofficious (Article 918); and

3. In case properties are acquired by the testator after the execution


of the will, such properties are not, as a rule, included among the
properties disposed of unless it should expressly appear in the will
itself that such was the testators intention (Article 793). It is
evident that this rule is applicable only to legacies and devisees
and not to institution of heirs.

CHAPTER 2

TESTAMENTARY SUCCESSION

Section I. WILLS

Subsection 1. WILLS IN GENERAL

What is a will?

Article 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.

The following definition of expresses the concept of will and gives


all its characteristics: A will is a personal, solemn, revocable and free act
by which a capacitated person disposes of his property and rights and
declares or complies with the duties to take effect after his death.

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2012 Notes Compilations onWills and Succession 25

A more complete definition is a will is (1) a written instrument (2)


duly executed and attested, by which (3) a competent person makes (4) a
voluntary disposition (5) of property (6) in favor of another competent
person (7) to take effect after the makers death, (8) meantime being
revocable.

The divisions marked by numerals point out the elements of a will.

Why does the law use the word permitted?

The making of a will is merely a statutory (not personal) right


conferred by law. It must be considered subordinated to law and public
policy. And the making thereof must conform to the formalities
prescribed by law.

Why is it that the law says the testator can only control to a
certain degree the disposition of his estate?

The right to make a will, as conferred by law, is not absolute, thus,


if there are compulsory heirs, the power of the decedent to dispose of his
estate is limited to the free disposable portion because of the system of
legitime.

What are the characteristics of a will?

Article 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.

1. It is a personal act. It must be observed, however, that the mere


act of drafting or writing of the will does not fall within the purview
of the prohibition. Thus, it has been held that who does the
mechanical work of writing the will is a matter of indifference. The
fact, therefore, that the will was typewritten in the office of a lawyer
is of no consequence.

2. The making of a will is a statutory (not a natural) right.

3. It is a unilateral act. Thus no acceptance by the transferees is


needed while the testator is still alive.

4. It is a solemn or formal act. 12

12Vide Article 783 NCC

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2012 Notes Compilations onWills and Succession 26

5. It is executed with animus testandi.

6. It is executed with capacity. 13

7. Is effective mortis causa. 14

8. It is essentially revocable or ambulatory. 15

9. It is free from vitiated consent. 16

10. It is an individual act (as distinguished from a joint act); 17

11. It disposes of the testators estate (whether totally or


partially) in accordance with his wishes.

Are nuncupative wills allowed?

Nuncupative or orals wills are not allowed in the Philippines. A


tape-recorded will is still a nuncupative will.

Is Jose Rizals poem Ultimo Adios a will?

The crucial words are found in the poems 13 th stanza: Ahi te todo,
mis padres, mis amores (To you I leave everything, my parents, my
loves.) Declared the Supreme Court: It is a literary piece of work and was
so intended. If it were intended as a will the poem would have been
entitled Ultimo Voluntas and not Ultimo Adios His poem merely
expresses a thought of parting and not of bequeathing. Besides, at that
time, he knows that he has no known property. Therefore an instrument
which merely expresses a last wish as a thought or advice but does not
contain a disposition of property and was not executed with animus
testandi, cannot be legally considered a will in a judicial sense.
(Montinola v. Herbosa, 3 C.A. Rep. (2nd S) p. 377)

What testamentary acts cannot be left to the discretion of a


third person?

Article 785:The duration or efficacy of the designation of heirs,


devisees or legatees, or the determination of the portions which

13 Articles 769 798 NCC


14 Article 777 NCC
15 Article 828 NCC
16 Article 839 NCC
17Vide Articles 818 and 819.

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2012 Notes Compilations onWills and Succession 27

they are to take, when referred to by name, cannot be left to the


discretion of a third person.

Article 785 is an extension of Article 784 which provides for the


personal character of wills.

There are 3 acts inseparable or intimately connected with the


making of a will which acts are testamentary in character. These 3 acts
cannot be left to the discretion of a third person, to wit:

1. The duration or efficacy of the designation of heirs, devisees or


legatees;

2. The efficacy of the designation; and

3. The determination of the portions which they are to take, when


referred to by name.

What provisions in a will that can be entrusted to a third


person?

Article 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 are to be given or applied.

Thus, the following provisions may be entrusted to a third person:

1. The manner of distribution of specific property or sums of money


that he may leave in general to specified classes or causes; and

2. The designation of the persons, institutions or establishments to


which such property or sums of money are to be given or applied.

Why are the above two provisions allowed to be delegated to a


third person?

The above two provisions are non-testamentary acts. Here, there is


no delegation of the will of the testator. The testator has already
expressed his will and has entrusted merely to the third person the
execution of the same so as to carry out his purpose.

However, under this provision, two things must be determined by


the testator:

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2012 Notes Compilations onWills and Succession 28

a. The property or amount of money to be given; and

b. The class or the cause to be benefited.

What is the distinction between the Articles 786 and 785?

In Article 786 there are no particular names designated, whereas


in Article 785, the recipients of the bounty of the testator are specified
either individually or as a group. In the latter Article, the third person
simply implements the details of the testamentary dispositions made by
the testator.

Illustration:A testator segregated P1 Million for the relief of the


victims of Mt.Pinatubo. He designated a third person to carry out this
testamentary disposition. The third person will now make the necessary
distribution of the money to the said victims. Third is a valid delegation
of power which involves the implementation of the disposition as willed
by the testator.

Is a testator allowed to make a testamentary disposition in


such manner that another person has to determine whether or not
it is to be operative?

Article 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.

Although the act determining whether a testamentary disposition


is to be operative or not is not exactly testamentary in character, it is
evident that the delegation of such to a third person would be
tantamount to allowing the testator to substitute the will of a third
person for his own, which is precisely what the law intends to prevent
when it states that the making of a will cannot be left in whole or in part
to the discretion of a third person. This is not permitted because it would
violate the general principle embodied in Article 784.

If the delegation to a third person is void, is the testamentary


disposition also void?

It is not only the delegation which is void. The testamentary


disposition whose effectivity depends upon the determination of the third
person is also void.

What are the rules for construction or interpretation of wills?

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In construing the provisions of a will, substance rather than form


must be regarded and the instrument must receive the most favorable
construction to accomplish the purpose of the testator. Thus:

1. Article 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.

2. Article 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
testator's intention is to be ascertained from the words of the
will, taking into consideration the circumstances under
which it was made, excluding such oral declarations.

3. Article 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.

4. Article 791. The words of a will are to receive an


interpretation which will give to every expression some effect,
rather than one which will render any of the expressions
inoperative; and of two modes of interpreting a will, that is
to be preferred which will prevent intestacy.

5. Article 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.

6. Article 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.

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7. Article 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 intended to convey a less interest.

What are the kinds of ambiguity in a will?

1. Latent or intrinsic ambiguity this ambiguity is hidden because it


does not appear on the face of the will (not obvious on the face of
the will), and is discovered only by extrinsic evidence.

Examples:

Latent as to person I institute to of my estate my first


cousin Jose (and the testator has more than one first cousin
named Jose).

Latent as to property I devise to my cousin Pedro my


fishpond in GingoogCity (and the testator has more than one
fishpond in GingoogCity).

2. Patent or extrinsic ambiguity this ambiguity appears on the face


of the will. It is apparent and not hidden (obvious on the face of the
will); in other words, by examining the provisions itself, it is
evident that it is not clear.

Examples:

Patent as to person I institute to of my estate some of


my first cousins

Patent as to property I bequeath to my cousin Pedro some


of my cars.

Matters covered by the Article

The situations covered are:

a. There is an imperfect description of the heir, legatee, or


devisee;

b. There is an imperfect description of the gift given; or

c. A description to which no person or property exactly


answers; or

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2012 Notes Compilations onWills and Succession 31

d. An uncertainty arising upon the face of the will.

How may the ambiguities be cured? 18

a. By examining the will itself

b. The extrinsic or parol evidence of the testator

c. Testimonial evidence excluding the oral declarations of the


testator is inadmissible.

The testator in his will gave his friend X a specified parcel of


land. It turned out that he has 2 friends by that name. However,
while making the will, the testator orally stated that he was
referring to his neighbor X, but among his files was found a letter
stating that he wanted to give the land to X of MalaybalayCity.

a. What kind of ambiguity is this?

This is a latent or intrinsic ambiguity, because the provision


is clear by itself, the doubt arising only because of circumstances
outside of the will.

b. Is the testators oral declaration admissible?

The testators oral declaration is extrinsic evidence but


should not be admitted, by express provision of the law, in order to
discourage perjury.

c. To whom should the land be given?

The house should be given to X of Malaybalay City in view of


the written memorandum, which is indeed admissible extrinsic
evidence.

What is the effect if the ambiguity could not be explained?

If the ambiguity cannot be explained or is too doubtful and beyond


construction despite resort to parol evidence, it becomes incurable. The
testamentary provisions shall then be inoperative.

What are the rules on interpretation of words? What are the


exceptions?

18 Article 789 NCC

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2012 Notes Compilations onWills and Succession 32

According to Article 791:

1. Ordinary words have their ordinary meanings (understood in its


laymans sense or meaning). (For instance, a natural child is
understood to be a child born to his parents by nature as
distinguished from an adopted child.) Exception If there is a clear
intention that another meaning was used provided that other
meaning can be determined.

2. Technical words have technical meanings (a word which has its


own meaning as defined in the rules or laws of a certain subject,
discipline, science and the like). (Thus, a natural child in civil law
has a meaning different from its ordinary sense. It means a child
born to parents who at the time of its conception, were capacitated
to marry but did not marry each other) Exceptions (1) if there is a
contrary intention; or (2) if it appears that the will was drafted by
the testator alone, who did not know the technical meaning.

3. A translation, submitted to the court, made in accordance with the


idiomatic usage of the language from which it is made, will prevail
over a literal translation which, while word for word correct, is not
idiomatic (Dionisio vs. Dionisio, 45 Phil. 609).

4. Holographic wills, being usually prepared by one who is not


learned in the law, should be construed more liberally than ones
drawn by an expert, and the words and phrases employed in such
instruments should be interpreted according to their ordinary
acceptation, even though they may have different technical legal
meaning, where the circumstances surrounding the execution of
the will indicate that the testator so intended.

What is the presumption in the making of a will?

When a testator makes a will, the presumption is that he intends


to dispose of all his property. There is no presumption to die intestate as
to any portion of his estate when the language used can clearly cover the
entire estate.

The presumption against intestacy is so strong that probate courts


will adopt any reasonable construction of a will to make it effective and
avoid intestacy. (Booth vs. King, 368 III. 487, 14 N.E. [2nd] 645)

What is the effect of invalidity of one of several provisions?

According to Article 792:

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2012 Notes Compilations onWills and Succession 33

1. Even if one disposition or provision is invalid, it does not


necessarily follow that all others are also invalid.

2. Exception when the various dispositions are indivisible in intent


or nature.

What is the rule respecting after acquired properties? What


are the exceptions?

According to Article 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.

Thus:

1. What are given by will are only those properties already possessed
and owned by the testator at the time the will was made, not those
acquired after (after-acquired properties). Properties acquired after
the making of the will do not pass to the instituted heirs.

2. Exceptions:

a. If it expressly appears in the will that it was the intention to


give such after-acquired properties;

b. If the will is republished or modified by a subsequent will or


codicil (in which case, the properties owned at the time of
such republication or modification shall be given. 19

c. If at the time the testator made the will he erroneously


thought that he owned certain properties, the gift of said
properties will not be valid, unless after making the will, said
properties will belong to him.20

d. Legacies of credit or remission are effective only as regards


that part of the credit or debt existing at the time of the
death of the testator. 21

Note:

19 Article 836 NCC


20Vide Article 930 NCC
21 Article 935, par. 1 NCC

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2012 Notes Compilations onWills and Succession 34

Under Article 793, property acquired during the interval between


the execution of the will and the death of the testator are not, as a rule
included among the properties disposed of, unless it should expressly
appear in the will itself that such was the intention of the testator.

This article states a principle inconsistent with other principles in


other provisions. Article 781 provides that The inheritance of a person
includes not only the property and the transmissible rights and
obligations existing at the time of his death, but also those which have
accrued thereto since the opening of the succession.

The most can be done, to avoid inconsistency, is to construe the


present article as referring to devises and legacies only and not to
institution of heirs. This can be inferred from the provisions of Articles
776 and 781 regarding the extent of inheritance.

Even so, this article conflicts with Article 930 which provides: 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.

In every devise or legacy, what is the general rule as to what


interest of the testator may be disposed of? What are the
exceptions?

According to Article 794:

1. General rule: In a legacy or devise the testator gives exactly the


interest he has in the thing. 22The entire interest of the testator in
the property is given not more, not less.

2. Exceptions:

a. He can convey a lesser interest if such intent clearly appears in the


will;

b. He can convey a greater interest, thus the law provides if the


testator 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

22 Real properties are enumerated in Article 415 and personal properties in


Articles 416 and 417 NCC

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2012 Notes Compilations onWills and Succession 35

gives the thing in its entirety. 23 In this case, if the person owning
the interest to be acquired does not wish to part with it, the
solution in Article 931 can be applied; i.e. the legatee or devisee
shall be entitled only to the just value of the interest that should
have been acquired.

c. He can even convey property which he very well know does not
belong to him 24 provided that it also does not belong to the legatee
or devisee. 25 (If the testator thought the property was his,
although it is not really his, the legacy or devise is void, unless the
property subsequently becomes his.26)

What law shall determine the validity of a will as to its form?

Article 795: The validity of a will as to its form depends


upon the observance of the law in force at the time it is made.

Thus,

A. Aspects of validity of wills

1. Extrinsic validity refers to the requirement of form (formal


validity)

a. Governing law as to time

a) For Filipinos the law in force when the will was


executed.

b) For foreigners same rule (Note: The assumption


here, of course, is that the will is being probated
here.)

b. Governing law as to place

a) For Filipinos

(1) Law of citizenship If the testator is a Filipino, he


can observe Philippine laws; 27 or

23 Article 929 NCC


24Vide Articles 930 and 931 NCC
25Vide Article 937 NCC
26 Vide Article 930 NCC
27 Articles 804- 814 NCC

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2012 Notes Compilations onWills and Succession 36

(2) Law of domicile laws of the country where he


may be; 28 or

(3) Law of residence; or

(4) Law of place of execution law of the country where


he executes the will; 29 or

(5) Philippine law

b) For foreigners

(1) If the testator is an alien who is abroad, he can


follow the law of his domicile, or his nationality
or Philippine laws 30 or where he executes the
will. 31

(2) If the testator is an alien in the Philippines, he


can follow the law of his nationality 32 or the
laws of the Philippines, since he executes the
will here. 33

2. Intrinsic validity refers to the substance of the provisions


(substantive validity)

a. Governing law as to time successional rights are governed


by the law in force at the time of the decedents death. 34It is
when succession opens and when the rights are transmitted
to the heirs.

a) For Filipinos the law as of the time of death (Article


226335)

28 Article 815 NCC


29 Article 17 NCC (Lex loci celebrationis or locus regit actum)
30 Article 816 NCC
31 Article 17 NCC
32 Article 817 NCC
33 Article 17 NCC
34Vide Article 2263 NCC
35 Article 2263. Rights to the inheritance of a person who died, with or without

a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by
other previous laws, and by the Rules of Court. The inheritance of those who, with or
without a will, die after the beginning of the effectivity of this Code, shall be adjudicated
and distributed in accordance with this new body of laws and by the Rules of Court; but
the testamentary provisions shall be carried out insofar as they may be permitted by
this Code. Therefore, leitimes, betterments, legacies and bequests shall be respected;

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2012 Notes Compilations onWills and Succession 37

b) For foreigners depends on their personal law


(Article 16, par. 2; 36 Article 1039 37)

b. Governing law as to place

a) For Filipinos the national law (Philippine law) of the


decedent, that is, the law of his country or
nationality 38 - regardless of the place of execution.
However, if the conflict rules under the national law
of the deceased refer the matter to the law of the
domicile and the foreigner was domiciled in the
Philippines at the moment of death, our courts will
have to apply the Philippine international law on
succession (Renvoi doctrine).

b) For foreigners their national law (Article 16, par. 2;


Article 1039)

X executed a holographic will in 1923. It was presented for


probate in 1946. It was allowed in 1952. Was the allowance valid?

No, because there was no law authorizing the execution of a


holographic will in 1923. The law says that the validity of a will depends
upon the observance of the law at the time it is made. 39

X made a will instituting his friend Y as his only heir. He had


no legitimate descendants or ascendants or wife. He had a
recognized spurious child Z. X died in 1949. Can Z inherit?

Z cannot inherit because the father died in 1949 (under the


old Civil Code). The intrinsic validity of a will is governed by the law
in force at the time of the testators death. 40 Although Article 2253
provides indeed that rights which are declared for the first time
shall have retroactive effect even though the event which gave rise
to them may have occurred under the former legislation, but this is

however, their amount shall be reduced if no other manner can every heir be given his
full share according to this Code.
36 Article 16, Par. 2.x x x However, intestate and testamentary succession, both

with respect to the order of succession and 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 may be the nature of the
property and regardless wherein said property may be found.
37 Article 1039. Capacity to succeed is governed by the law of the nation of the

decedent.
38 Article 16 NCC
39Vda de Enriquez vs. Miguel Abadia, L-7188, August 9, 1954
40 Article 2263 NCC

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2012 Notes Compilations onWills and Succession 38

so only when the new rights do not prejudice any vested or


acquired right of the same origin. Thus, said article provides that
if a right should be declared for the first time in this Code, it shall
be effective at once, even though the act or event which give rise
thereto may have been done or may have occurred under the prior
legislation, provided said new right does not prejudice or impair
any vested or acquired right of the same origin. the right of
ownership of Y became vested in 1949 upon the death of the
testator and this is so because of the imperative provision of the
law which commands that the rights to succession are transmitted
from the moment of death. The new right recognized by the new
Civil Code in favor of the illegitimate child of the deceased cannot,
therefore, be asserted to the impairment of the vested right of Y.

An American executed a will in the Philippines, observing


Philippine laws, and distributing his estate in accordance with
Philippine laws. Is the will valid?

The provision is void, because the estate must be distributed in


accordance with the laws of his country, and not the law of the
Philippines. Article 16 provides: Real property as well as personal
property is subject to the law of the country where it is situated.
However, intestate and testamentary succession both with respect to the
order of succession n 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 may be
the nature of the property, and regardless of the country wherein said
property may be found.

X, an American had a legitimate child Y. X made a will in the


Phil observing Phil solemnities. In his will, he gave all his properties
found here in the Phil to his friend Z without giving anything to Y.
In the USA, there are no compulsory heirs. Can Y insist that he be
given a share?

Since under America law as assumed in the problem a child is not


a compulsory heir, it follows that Y cannot insist that he be given a
share. It was valid for the testator to disregard him.

May a will void at the time of execution validated by


subsequent law changing the formalities required?

A will which is void for failure to observe the formalities required at


the time of its execution cannot be validated by the passage of a new law
changing the formalities which now suits its form.

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2012 Notes Compilations onWills and Succession 39

May a statutory change enacted after the execution of the will


but before the death of the testator have retroactive effect upon the
formal validity of the will?

As a general rule, a statutory change enacted after the execution of


the will but before the death of the testator cannot have retroactive effect
upon the formal validity of a will.

The only exception which is recognized is when a retroactive effect


is expressly declared by the statute itself or is necessarily implied in the
language used therein.41

This exception does not violate the constitutional prohibition


regarding deprivation of property without due process of law because the
statue is enacted before the death of the testator, and as a consequence,
no rights are as yet vested in the persons called to inheritance either as
heirs, devisees or legatees.

Subsection 2. TESTAMENTARY CAPACITY AND INTENT

Who can make wills?

Article 796 provides: All persons who are not expressly


prohibited by law may make a will.

The general rule is capacity. It is incapacity that is the exception.

There are two general qualications:

(1) 18 years old or over; and

(2) Soundness of mind at the time the will is made.

Capacity to make a will is called testamentifaccion active,


whereas capacity to inherit or to receive by will is testamentifaccion
passive.

Can a convict under civil interdiction allowed to make a will?

A convict under civil interdiction is allowed to make a will. This is


because civil interdiction prohibits a disposition of property inter vivos,
not mortis causa(Article 34, Revised Penal Code).

41 Article 4, NCC

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2012 Notes Compilations onWills and Succession 40

Are spendthrifts allowed to make a will?

Since the law does not disqualify them, it is believed that


spendthrifts or prodigals, even if under guardianship, can make a will
provided they are at least 18 years old and are of sound mind.

Can juridical persons make a will?

Art. 796 refers to all persons, but this should be understood to


refer only to natural persons, not juridical ones, like corporations. This is
evident from the requirement of soundness of mind (Article 798).

Distinguish between testamentary capacity and testamentary


power.

This question can be answered from different viewpoints.

(a) From one angle:

1) Testamentary power-is the statutory right to dispose of property


by acts effective mortis causa which is a right given usually as a
consequence of ownership and respect for family relations.

2) Testamentary capacity-as used in the new Civil Code is the right


to make a will provided certain conditions are complied with; namely that
the testator is not prohibited by law to make a will (Article 796); that the
testator is at least 18 years of age (Article 797); and that the testator be
of sound mind at the time of the execution of the will (Article 798),
soundness of mind being present when the testator knows the nature
of the estate to be disposed of, the proper objects of his bounty, and the
character of the testamentary act (Article 799).

(b) From another viewpoint:

Testamentary capacity may be classied into two kinds:

1) Active testamentary capacity-capacity to make a will or codicil;


and
2) Passive testamentary capacity-capacity to receive by virtue of a
will.

Active testamentary capacity (to make) is often referred to as


testamentary power while passive testamentary capacity (to receive) may
also be referred to as plain testamentary capacity.

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2012 Notes Compilations onWills and Succession 41

[NOTE: The new Civil Code makes no mention of the phrase


testamentary power.]

(c) From a third viewpoint:

Testamentary capacity is the ability of one to make a will, while


testamentary power is the privilege granted by the law to someone to
make a will. Hence, in some common law countries, while convicts may
have testamentary capacity, they are denied testamentary power,that is,
they are not allowed to make a will (57 Am. Jur. Wills, Sec. 71). In the
Philippines, however, convicts have both testamentary capacity and
power, unless otherwise disqualied.

Who are persons disqualified from making a will?

Article 797: Persons of either sex under eighteen years of


age cannot make a will.

Article 798: In order to make a will it is essential that the


testator be of sound mind at the time of its execution.

Thus, persons who are expressly prohibited from making a will are
those who do not possess the necessary age and mental requirements. 42

Other circumstances such as family relations, civil interdiction,


prodigality, insolvency, alienage, and other similar nature, which
ordinarily modify or limit capacity to act, do not affect or restrict
capacity.

How is the age of the testator computed?

Under Spanish Law, a person should have passed his 18th


birthday before he can make a will (6 Sanchez Roman 212). Under
American Law, he can make a will on the day just before his 18th
birthday, on the ground that by that time, 18 years shall have passed
(See Gardner, p. 86). Obviously, we follow the Spanish concept.

In the computation of age of the testator, Article 13 of the Civil


Code shall govern. A year consists of 365 days. Thus, the last day of the
required year (18th) should have already passed to qualify a person to
make a will. Our law does not recognize fractions of a day. Accordingly, a
person is said to have reached the age of 18 within the meaning of the
law only at the commencement of the day which is popularly known as
his birthday.

42 Articles 797, 798, NCC

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2012 Notes Compilations onWills and Succession 42

The age of 18 has been xed for at this age, an individual is


generally no longer subject to fraud, inuence, or insidious
machinations.

Does the extra day in a leap year affect the computation of the
age of the testator?

Yes, because Article 13 speaks of a year as containing 365 days.


This is a legal year which is not a calendar year. The legal year and
calendar year do not coincide because Article 13 does not recognize a
leap year. The legal year must always be 365 days.

What is soundness of mind?

Article 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.

Thus to be of sound mind for purposes of making a will, the


testator must have the ability to know three things:

1. Nature of the estate to be disposed of;

2. Proper objects of ones bounty; and

3. Character of the testamentary act.

It is not required, in order for the last requisite to be present that


the testator knows the legal nature of the will with the erudition of a
civilist. All that he needs to know is that the document he is executing is
one that disposes of his property upon death.

Due execution of a will includes a determination of whether the


testator was of sound and disposing mind at the time of its execution,
that he had freely executed the will and was not acting under duress,
fraud, menace or undue inuence and that the will is genuine and not a
forgery, that he was of the proper testamentary age and that he is a
person not expressly prohibited by law from making a will.

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2012 Notes Compilations onWills and Succession 43

Therefore, just because a person has paralysis and loss of speech


(Bagtas v. Paguio, supra), or cholera (Galvez v. Galvez, 6 Phil. 243),
insomnia (Caguioa v. Calderon, 20 Phil. 400), diabetes (Samson v.
Corrales Tan Quintin, 44 Phil. 573), sleeping sickness or Addisons
disease (Neyra v. Neyra, 76 Phil. 296), cerebral hemorrhage affecting half
of the body (Magsuci v. Gayona, [C.A.] 45 O.G. [5th S] p. 157), deafness,
blindness, poor memory (Garcia v. Garcia, 35 O.G. 956; Neyra v. Neyra,
76 Phil. 296), it does not follow that he was of an unsound mind at the
time he executed the will.

Senility (inrmity of old age) should be distinguished from senile


dementia (decay of mental faculties). The latter, when advanced or
absolute, may produce unsoundness of mind resulting in testamentary
incapacity (Crisostomo v. Maclang, 46 O.G. No. 5, p. 2106).

What are the elements of testamentary capacity?

1. The testator must have the mental capacity to understand the


nature and effect of his act; that is, he must know that the
instrument is an act mortis causa which will dispose of his
properties.

2. He must have sufficient recollection of his properties; that is, he


must comprehend their kind and character, and be able to
designate them.

3. He must be able to remember the natural objects of his bounty.

4. He must have sufficient mental ability to make a disposition of his


property among the objects of his bounty according to the plans
which he has formed in his mind.

How is unsoundness of mind manifested?

(a) Religious delusion resulting in the unsettling of judgment (57


Am. Jur. Wills, Sec. 85).

(b) Blind extraordinary belief in spirits while executing a will(57


Am. Jur. Wills, Sec. 86).

(c) Monomania (insanity on a single subject), if this happens to be


on the subject of wills or succession (57 Am. Jur. Wills, Sec. 81).

(d) Insane delusions-belief in things which no rational mindwould


believe to exist (57 Am. Jur. Wills, Sec. 80).

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2012 Notes Compilations onWills and Succession 44

(e) Drunkenness if this results in failure to know the nature of the


testamentary act (57 Am. Jur. Wills, Sec. 74).

(f) Idiocy-congenital intellectual deciency (I Page, Wills, Sec. 136,


p. 283).

(g) A comatose stage, resulting from hypertension and cerebral


thrombosis, and preventing the testator from talking or understanding.
(Gonzales v. Carungcong, L-3272-73, Nov. 29, 1951).

(h) State of delirium (Albornoz v. Albornoz, 71 Phil. 414).

What is the presumption as to soundness of mind?

Article 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.

Thus, when the testator executed the will after being placed under
guardianship or ordered committed, in either case, for insanity (under
Rules 93 and 101, respectively, of the Rules of Court), and before said
order has been lifted, there is a rebuttal presumption of insanity.

What is the effect of supervening incapacity or supervening


capacity?

Article 801: Supervening incapacity does not invalidate an


effective will, nor is the will of an incapable validated by the
supervening of capacity.

What is the time for determining mental capacity?

It is the time of execution of the will; no other temporal criterion is


to be applied (Article 801).

May a married woman make a will and dispose of her separate


property by herself?

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2012 Notes Compilations onWills and Succession 45

Article 802. A married woman may make a will without the


consent of her husband, and without the authority of the court.

Article 803. A married woman may dispose by will of all her


separate property as well as her share of the conjugal partnership
or absolute community property.

SUBSECTION 3. FORMS OF WILLS

What are the kinds of wills allowed in the Philippines?

a. Ordinary or notarial will that which requires, among other


things, an attestation clause, and acknowledgment before a
notary public.

b. Holograph or holographic will the most important feature of


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 acknowledgment before a notary
public is needed.

Are nuncupative wills allowed in our jurisdiction?

Our new Civil Code does not recognize the validity of nuncupative
wills, wills which are orally made by the testator in contemplation of
death, and before competent witnesses.

What is the objective of the provisions on the formalities of


wills?

According to the Code Commission, the underlying and


fundamental objective permeating the provisions on the law on wills in
this Project consists in the liberalization of the manner of their execution
with the end in view of giving the testator more freedom in expressing his
last wishes but with sufcient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure
and inuence upon the testator. This objective is in accord with the
modern tendency in respect to the formalities in the execution of
wills(Report of the Code Commission, p. 103).

What are the common requirements of a will?

Article 804. Every will must be in writing and executed in a


language or dialect known to the testator.

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2012 Notes Compilations onWills and Succession 46

The requirements provided in this article apply to both the attested


and the holographic wills.

The will may be handwritten, typed, or printed; and the material


on which it is written is immaterial.

The validity of a will is not affected by its having been written on


poor stationery or its non-preparation by an attorney or the absence of
copies (Vda. de Roxas v. Roxas, 48 O.G. 2177).

Is it necessary that a notarial will be dated?

It is not necessary that a notarial will be dated (Estate of Labitoria,


54 Phil. 379). Even if erroneous, the date will not defeat a notarial will
since the law does not even require it to be dated (Padilla v. Padilla, L-
43750). Note though that a holographic will hand has to be dated,
otherwise it is null and void.

Is it essential to state the place where the will is being made or


executed?

It is not essential to state the place where the will is being made or
executed (Dionisio v. Dionisio, CA, 40 O.G. 71).

Must the testator himself perform the act of writing his


notarial will?

The law does not specify that the testator himself must perform the
act of writing.

Is it required that the fact that the testator knew the wills
language appear on the face of the will?

The fact that the testator knew the wills language need not appear
on the face of the will. Extrinsic evidence is allowed to prove this(Lopez v.
Liboro, 81 Phil. 429).

In the opening paragraph of the will, it was stated that English


was a language understood and known to the testratrix. But in its
concluding paragraph, it was stated that the will was read to the
testratrix and was translated into Filipino language. Is the will
valid?

In Suroza vs. Honrado, 110 SCRA 388, the will was declared
void.The phrase in the concluding paragraph that the will was read to

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2012 Notes Compilations onWills and Succession 47

the testratrix and was translated into Filipino language could only mean
that the will was written in a language not known to the illiterate
testratrix and, therefore, it is void because of the mandatory provision of
Article 804 of the Civil Code. Translation of the language used will not
cure the defect.

Is it required that the testator know the language used in the


attestation clause?

The rule in attestation clause is different. The language or dialect


need not be known to the testator. The attestation clause of the ordinary
or notarial will need not be known to the testator. This is not a part of
the testatmentary disposition.

Must the witnesses know the language used in the will?

The witness to the will need not know the language or dialect used
in the attestation clause. The law, however requires that it be interpreted
to them, if they do not know it. (Article 805, par. 4)

Must the testators knowledge of the language in which the


will is executed be expressed in the body of the will or in the
attestation clause?

There is no statutory requirement that the testators knowledge or


understanding of the language or dialect in which the will was executed
should be expressed either in the body of the will or in the attestation
clause. Consequently, it is a matter that may be established by proof
aliunde.43

What are the presumptions that the testator know the


language or dialect in which the will was written?

It may be presumed that the testator knew the language in which


the will was written when the following appear:(Abangan vs. Abangan, 40
Phil. 476, and Gonzales vs. Laurel, 46 Phil. 750):

1. The will must be in a language or dialect generally spoken in


the place of execution; and

2. The testator must be a native or resident of said locality.

What are the special formalities of a notarial will?

43Javellana vs Javellana, 106 Phil. 1073

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2012 Notes Compilations onWills and Succession 48

Article 805. Every will, other than a holographic will, must


be subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and
by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one
another.

The testator or the person requested by him to write his name


and the instrumental witnesses of the will, shall also 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 the pages thereof in the presence of the testator
and of one another.

If the attestation clause is in a language not known to the


witnesses, it shall be interpreted to them.

Article 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.

Thus, aside from the fundamental requisites that the testator be at


least 18 years old, and possessed of a sound mind, the following
formalities must be complied with:

a. The will must be in writing.

b. It must be executed in a language or dialect known to the


testator.

c. It must be subscribed at the end thereof by the testator


himself or by the testators name written by some other
person in his presence or direction.

d. It must be attested and subscribed by three or more credible


witnesses in the presence of the testator and of one another.

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2012 Notes Compilations onWills and Succession 49

e. It must be signed on each and every page thereof by the


testator and the witnesses, except the last page, on the left
margin.

f. All pages must be numbered correlatively in letters placed on


the upper part of each page.

g. 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 therefore, 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 the pages thereof in the
presence of the testator and of one another.

h. It must be acknowledged before a notary public by the


testator and the witnesses.
Notes:

Some discrepancies:

1) Par. 1, Article 805 No statement that the testator


must sign in the presence of the witnesses.

2) Par. 2, Article 805 - No statement that the testator


and the witnesses must sign every page in one
anothers presence.

These two things, however, are required to be stated in the


attestation clause. The only conclusion, therefore, is it cannot be
presumed that the attestation clause was meant to tell a lie.

3) On the other hand, the attestation clause is not


required to state that the agent signed in the
testators presence a circumstance mandated by
the first and second paragraph of the article.

Indication of date There is not requirement that an attested will


should be dated, unlike a holographic will.

If the testators rst name appears, without the surname, is


the will valid?

If the testators rst name appears, without the surname, the will
is valid (Yap Tua v. Yap Ka Kuan, 27 Phil. 579).

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2012 Notes Compilations onWills and Succession 50

If the testators name is misspelled, abbreviated, or by


nickname or by an assumed name, is the will valid?

If the testators name is misspelled, abbreviated, or by nickname,


or by Father or Mother, or in an assumed name, this is all right
provided the testator intended same to be his signature (57 Am. Jur.
Wills,Secs. 244, 245, 246, 247). This is true even in the case of a will
signed by the testatrix after her second marriage in the name she had
borne under her former marriage (Ibid., Sec. 247).

What is the difference between subscription and signing?

The article uses two words interchangeably: subscribe and sign.


Strictly speaking, they are not exactly synonymous. To subscribe
necessarily denotes writing, more precisely, to write under; to sign simply
means to place a distinguishing mark. Thus, signing has a broader
meaning than subscribing; not every signature is necessarily a
subscription; not every distinguishing mark is a writing.

What is the difference between attestation and subscription?

Attestation and subscription differ in meaning. Attestation is the


act of the senses, while subscription is the act of the hand. The former is
mental the latter is mechanical, and to attest a will is to know that it was
published as such, and to certify the facts required to constitute an
actual and legal publication; but to subscribe a paper published as a will
is only to write on the same paper the names of the witnesses, for sole
purpose of identification. (Caneda vs. Court of Appeals, 222 SCRA 781)

In Toboada vs. Rosal, it was held that attestation consists in


witnessing the testators execution of the will in order to see and take
note mentally that those things are done which the statute requires for
the execution of a will and that the signature of the testator exists as a
fact. On the other hand, subscription is the signing of the witnesses
names upon the same paper for the purpose of identification of such
paper as the will which was executed by the testator. As it involves a
mental act, there would be no means, therefore of ascertaining by a
physical examination of the will whether the witnesses had indeed signed
in the presence of the testator and of each other unless this is
substantially expressed in the attestation.

What are the requisites for signing by the agent of the


testator?

Two requisites for signing by the agent must be complied with:

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2012 Notes Compilations onWills and Succession 51

1. The agent must sign in the testators presence; and


2. It must be done by his express direction.

The delegate must sign in the testators presence. 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. Gustilo,
5 Phil. 641; Yap Tua v. Yap Ka Kuan, 27 Phil. 579).

Express direction means that the delegate must be expressly


authorized to do so. Hence, mere knowledge on his part that the will is
being signed in his behalf or his acquiescence to such an act is not
sufcient(67 Am. Jur. Wills, Sec. 259; Anno. 16 B.R.C. 320; Waite v.
Frisbe, 45 Minn. 361). However, an express direction may be given by the
testator even without using words - mere clear gestures or motions or
conduct is sufcient (57 Am. Jur. Wills, Sec. 259). Thus, in one case,
when a witness asked the testatrix if he should sign for her, and she
answered Yes or nodded her head, it was held that there was express
authorization (Ex Parte Leonard, 139 S.C. 518).

What must the agent write?

The law does not require any specific form in which the name of
the testator should be affixed at the end of the will when written at his
request by another person. The only requirement is that the will shall
bear the name of the testator.

Must the person signing for the testator put his own name?

The person signing for the testator does not even have to put his
own name (Barut v. Cagacungan, 1 Phil. 461; Bolonan v. Abellana, et al.,
L-15153, Aug. 31, 1960). All the law requires is that he puts the name of
the testator (Caluya v. Domingo, 27 Phil. 330). Upon the other hand, if he
puts down his own name, and omits that of the testator, this would be a
substantial violation of the law and would render the will invalid, thus if
the name of the testator is not written as a signature to the will, the
testament is invalid notwithstanding that the third persons name
appears on the will with the authorization of the testator (Guison v.
Concepcion, 5 Phil. 551; Bolonan v. Abellana, et al., L-15153, Aug. 31,
1960; Ex-parte Santiago, 4 Phil. 692).

Thus, it is unimportant whether the person who writes the name of


the testator signs his own or not. The important thing is that it clearly
appears that the name of the testator was signed at his express direction

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2012 Notes Compilations onWills and Succession 52

in the presence of three witnesses and that they attested and subscribed
it in his presence. That is all the statute requires.

In several cases, however, the Supreme Court has suggested that


where the testator does not know how, or is unable for any reason to
sign the will himself, it shall be signed in the following manner:

John Doe, by the testator,-Richard Roe or


By the testator, John Doe, Richard Roe 44

Are the words at the request of Senora Maria Siason, (followed


by the signature of) Catalino Geva and the three witnesses
sufficient?

Since the name of the testatrix appear after the words at the
request of, the said name of the testatrix forms a part of the recital and
not a signature, the signature being the names of the witnesses
themselves (In re Will of Siason, 10 Phil. 504).

Would the will be valid if evidence does not show that the
signature was made at the testators express request but the
testator subsequently acknowledged the will as his own will?

Yes, because the subsequent acknowledgment by the testator is


sufficient signing and it is presumed to have been made at his direction.

Where must the third person write the testators name?

The third person should write the testators name somewhere


between the dispositive provisions of the will and the attestation clause.
If the name appears only in the attestation clause, and not before it, the
will is not considered as signed with the testators name. But if it is
written just after the dispositive provisions and before the signature of
the witnesses and the attestation clause, it is sufficient, although not
written separately as a distinct signature but merely as part of a recital.

Is it 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 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 (See Jallores v. Interino, L-42463). Nor is it possible to state

44Ex parte Arcenas, 4 Phil. 700; Ex parte Ondevilla, 13 Phil. 470

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2012 Notes Compilations onWills and Succession 53

therein that another person was requested by the testator to sign for
him, when the testator himself has thumb-marked the will (See Payad v.
Tolentino, 6 Phil. 849).

May the agent be one of the attesting witnesses?

The law does not specify who may sign the testators name on the
will at his request. Therefore, any person may sign for him. Even one of
the subscribing or attesting witnesses may sign for the testator (Ex-parte
Leonard, 39 S.C. 518, 18 S.E. 216).

Where must the testator place his signature?

The law fixes the location of the signature and requires that it
must be at the foot or end of the will. The purpose of such requirement is
not only to show that the testamentary purpose therein expressed is
completed, but also to prevent any opportunity for fraud or interpolations
between the written matter and the signature. The position of the
signature at the end of the will furnishes in itself evidence of finality or
completion of intent. Consequently, a writing in the form of a will is a
nullity where it is not signed at the end as required by law, and probate
thereof should be denied. 45

If, however, the will contains non-dispositive paragraphs after the


testamentary dispositions, one can refer to two kinds of end: the physical
end where the writing stops; or the logical end where the last
testamentary disposition ends.

Surely, signing at the physical end is always permissible, but


equally permissible is signing at the logical end. The non-dispositive
portions are not essential parts of the will.

Note: Signing before the end invalidates not only the dispositions
that come after, but the entire will, because then one of the statutory
requirements would not have been complied with.

If after the testators signature there are additional clauses or


provisions, is the whole will void, or only those clauses?

So important is the requirement that the will must be subscribed


(signed) at the end thereof by the testator himself or by the testators
name written by another person in his behalf that if after the signature
there are additional clauses or provisions, not only should those clauses
be considered void, but also the whole will from beginning to end, and

45Am. Jur., Sec. 267, p. 213

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2012 Notes Compilations onWills and Succession 54

will, therefore, be denied probate (Matter of Tyner,138 Misc. 192, 245 N.Y.
Supp. 206; see Re Andrews, 162 N.Y. 1, 56 N.E. 529). The new Civil Code
expressly requires that the signature be placed at the end (logical end) of
the will.

The signatures of the witnesses are on top or at the right or


bottom margin. Is the will valid? Why?

Yes, because there was substantial compliance with the law. The
purpose of the law is merely to identify the pages used and to prevent
fraud (Avena vs. Garcia, 42 Phil. 145).

There is a mandatory and a directory part to this requirement:


The mandatory part is the signing on every page in the witnesses
presence.The directory part is the place of the signature, i.e. the left
margin; the signature can be affixed anywhere.

Is placing of the testators thumb mark or thumbprint a


signature within the contemplation of this article? Does it comply
with the statutory requirement?

In Matias vs. Salud, L-10751, 23 June 1958, it was held that the
requisite that the will should be signed by the testator is satisfied by a
thumbprint or other mark affixed by him (De Gala vs. Ona, 53 Phil. 104;
Dolar vs. Diancin, 55 Phil. 479; Neyra vs, Neyra, 42 O.G. 2817; Lopez vs.
Liboro, 46 O.G. [Supp. To No1]); Solar v.Diancin, 55 Phil. 479; De Gala v.
Gonzales, 51 Phil. 480) ; and that where such mark is affixed by the
decedent, it is unnecessary to state in the attestation clause that another
person wrote the testators name at his request (Payad vs. Tolentino, 62
Phil. 849).

Is a cross as a signature sufficient?

A sign of the cross, placed by the testator does not comply with the
statutory requirement of signature, unless it is the testators usual
manner of signature or one of his usual styles of signing. (Garcia vs.
Lacuesta, 90 Phil. 489). In Abaya v. Zalamero, 10 Phil. 357; Leario v.
Leano, 30 Phil. 612, it was held that a testator can sign with a mere cross
if he intends that to be his signature

If somebody else writes the testators name for him, would the
mere placing by the testator of a cross after his name sufficient?

If somebody else writes the testators name forhim, the mere


placing by the testator of a cross after his name, without there being in

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2012 Notes Compilations onWills and Succession 55

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
v. La Cuesta, et al., L-4067, Nov. 29, 1961). The Supreme Court in the La
Cuesta case said 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 this 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.

Even if a person knows how to write his name, can he still sign
by the use of a mark?

Even if a person knows how to write his name, he can still sign by
the use of a mark (67 Am. Jur. Wills, Sec. 250).

Is it sufficient for the testator to sign with his initials?

It is sufficient that the testator sign with his initials (Yap Tua v.
Yap Ka Kuan,27 Phil. 579).

Is it sufficient for the testator to sign witha rubber stamp?

It is sufficient that the testator sign with a rubber stamp or an


engraved dye, provided he intends the same to be his
signature(Thompson on Wills, Sec. 108, pp. 171-173).

If the testators hand is guided by another when the signing or


marking is made, is the signing of the will valid?

Even if the testators hand is guided by another when the signing


or marking is made, the signing will still be valid, and will be considered
as having been done by the testator himself (Amata v. Tablejo, 48 Phil.
485).

Where must marginal signatures be placed?

Although according to the first part of the second paragraph of


Article 805 provides that 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, the requirement regarding the location of the marginal
signatures is not mandatory in character, provided that such signatures
are present in every page of the will except the last (Avera vs. Garcia 42
Phil. 145; Nayre vs. Mojal, 47 Phil. 153).

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2012 Notes Compilations onWills and Succession 56

Failure to have the marginal signatures of the testator and of 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 thumbmark, as the
case may be, of the testator, but absent on said rst page, the will cannot
be admitted to probate (Estate of Tampoy v. Alberastine, L-14322, Feb.
25, 1960).

The rst page of a will bore the signatures of the three


instrumental witnesses, but not the signature or the thumb mark of
the testator. Is the will valid?

In Estate of Tampoy v. Alberastine,L-14322, Feb. 25, 1960, it was


held that the will is not valid for the absence here constitutes a fatal
defect. However, if through the inadvertence or negligence of one of the
three witnesses, he forgets to sign on the 3rd page of a 5-page will, but
was able to sign on all the pages of the duplicate, the omission ought not
to be considered a fatal defect. Indeed, the impossibility of substitution of
this page is assured not only by the fact that the testatrix and the two
other witnesses did sign the defective page, but also by its bearing the
coincident imprint of the seal of the notary public before whom the
testament was ratied. The law should not be so strictly and literally
interpreted as to penalize the testatrix on account of the inadvertence of
a single witness over whose conduct she had no control, where the
purpose of the law to guarantee the identity of the testament and its
component pages is sufciently attained, no intentional or deliberate
deviation existed, and the evidence on record attests to the full
observance of the statutory requisites. Otherwise, witnesses may
sabotage the will by muddling or bungling it at the attestation clause
(Celso Icasiano v. Natividad Icasiano, et al., L-18979, June 30, 1964). The
attesting witnesses must also be the very same marginal witnesses,
otherwise the will is void (Will of Tan Diuco, 45 Phil. 187).

Must the last page of the will be signed on the margin?

The last page need not be signed on the marginsince the


signatures already appear at the end. It is wrong to say that the last page
needs no signature at all.

If the last page contains only the attestation clause, the testator
need not sign on the margin (Fernandez v. Vergel de Dios, 46 Phil. 922).

If the whole will including the attestation clause consists of only


one page, no marginal signatures are needed since these would be

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2012 Notes Compilations onWills and Succession 57

purposeless as the page already has, at the end thereof, all the necessary
signatures (Abangan v. Abangan, 40 Phil. 476).

The will of Ana Abangan consists of two sheets, the first of


which contains all the disposition of the testatrix, duly signed at the
bottom by Martin Montalban (in the name and under the direction of
the testatrix) and by three witnesses. The following sheet contains
only the attestation clause duly signed at the bottom by the three
instrumental witnesses. Neither of these sheets is signed on the left
margin by the testatrix and the three witnesses, nor numbered by
letters. Is the will valid?

In requiring that each and every sheet of the will should also be
signed on the left margin by the testator and three witnesses in the
presence of each other, the law evidently has for its object to avoid the
substitution of any of said sheets, thereby changing the testator's
dispositions. But when these dispositions are wholly written on only one
sheet signed at the bottom by the testator and three witnesses as the
instant case, their signatures on the left margin of said sheet would be
completely purposeless. In requiring this signature on the margin, the
statute took into consideration, undoubtedly, the case of a will written on
several sheets and must have referred to the sheets which the testator
and the witnesses do not have to sign at the bottom. A different
interpretation would assume that the statute requires that this sheet,
already signed at the bottom, be signed twice. We cannot attribute to the
statute such an intention. As these signatures must be written by the
testator and the witnesses in the presence of each other, it appears that,
if the signatures at the bottom of the sheet guarantee its authenticity,
another signature on its left margin would be unnecessary; and if they do
not guaranty, same signatures, affixed on another part of same sheet,
would add nothing. We cannot assume that the statute regards of such
importance the place where the testator and the witnesses must sign on
the sheet that it would consider that their signatures written on the
bottom do not guaranty the authenticity of the sheet but, if repeated on
the margin, give sufficient security.

In requiring that each and every page of a will must be numbered


correlatively in letters placed on the upper part of the sheet, it is likewise
clear that the object of the law is to know whether any sheet of the will
has been removed. But, when all the dispositive parts of a will are written
on one sheet only, the object of the statute disappears because the
removal of this single sheet, although unnumbered, cannot be hidden.

What has been said is also applicable to the attestation clause.


Moreover, referring specially to the signature of the testatrix, we can add
that same is not necessary in the attestation clause because this, as its

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2012 Notes Compilations onWills and Succession 58

name implies, appertains only to the witnesses and not to the testator
since the latter does not attest, but executes, the will.

The object of the solemnities surrounding the execution of wills is


to close the door against bad faith and fraud, to avoid substitution of
wills and testaments and to guaranty their truth and authenticity.
Therefore the laws on this subject should be interpreted in such a way as
to attain these primordial ends. But, on the other hand, also one must
not lose sight of the fact that it is not the object of the law to restrain and
curtail the exercise of the right to make a will. So when an interpretation
already given assures such ends, any other interpretation whatsoever,
that adds nothing but demands more requisites entirely unnecessary,
useless and frustative of the testator's last will, must be disregarded
(Abangan vs. Abangan, 40 Phil. 476).

Is a will executed through e-document valid?

The Electronic Commerce Act (ECA) or RA 8792 was signed into


law on June 14, 2000. The said law provides that [w]here the law
requires a document to be in writing, that requirement is met by an e-
document if said document maintains its reliability and integrity and can
be authenticated so as to be usable for subsequent reference (Sec. 7[a],
id).

Nonetheless, this afore-quoted provision has provoked concerns on


how it could be reconciled with the requisite set forth under the Civil
Code that certain documents be put in writing (See Articles 1403[2],
1874, 1956, and 804, Civil Code). For instance, Article 804 of the Civil
Code provides that every will must be in writing and strictly following the
formalities laid down by Articles 805 (1st par.) and 806 (i.e., signed by
the testator and at least three witnesses at the end of every page, and
acknowledged before a notary public).

Upon the other hand, under Sec. 7(c-ii) of the ECA, no provision .
. . shall apply to vary any and all requirements of existing laws and
formalities required in the execution of documents for their validity -
thus, the felt need to amend - concerning an apparent conict in the
existing laws, not excluding that of the Civil Code and the Rules of Court
vis--vis issues dealt with in the e-commerce law. Sufce it to say, from
all appearances, it would seem that any contractual agreement entered
into may be deemed valid and enforceable even if it is in the form of an e-
document except in the execution of a will.

An e-signature is not a handwritten signature that is scanned or


graphically imprinted on the e-document(Marlene A. Tucker, A

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2012 Notes Compilations onWills and Succession 59

Comparative Study of the Regulatory Framework of E-Commerce in the


Philippines and Singapore, Phil. Law Journal, June 2001, Vol. 75, No. 4,
p. 823).

How should the numbering of pages be made?

Article 805 states that all the pages shall be numbered


correlatively in letters placed on the upper part of each page. The
principal object of this requirement is to forestall any attempt to
suppress or substitute any of the pages of the will (Martir vs. Martir, 70
Phil. 89).

However, this requirement is not necessary when all of the


dispositive parts of a will are written on one sheet only (Abangan vs.
Abangan, supra).

Neither is it necessary that the pages of the will shall be numbered


correlatively in letters such as one, two, three. Substantial
compliance with the statutory requirement is sufficient. Consequently, if
the pages of a will are numbered by mere alphabetical letters (Alaba vs.
Roque, 43 Phil. 379), or by Arabic numerals (Unson vs. Abella, 43 Phil.
494; Nayre vs. Mojal, 47 Phil. 152; Martir vs. Martir, supra), or by any
form of identification, there is sufficient compliance with the statutory
requirement.

Thus, the numbering A, B, C, would be sufcient (Aldaba v.


Roque, 43 Phil. 378), or Page 1, Page 2, Page 3 (Nayue v. Mojal and
Aguilar, 47 Phil. 152), or even plain 1, 2, or 3, since this would
amount to substantial compliance with the law. As a matter of fact, it
has been held that the omission to put a page number on a sheet if that
be necessary, may be supplied by other forms of identication more
trustworthy than the conventional numeral words or characters (Lopez
v. Liboro, supra).

It is not necessary to number the rst page (Lopez v. Liboro, 81


Phil. 429; Icasiano v. Icasiano, L-18979, June 30, 1964), nor even the last
page as long as, for example, said page, in its attestation clause states
that the will consists of three pages, besides this one for here, it is
evident that the last page is really the fourth page. This is true also even
if there is no reference to besides, if the last page contains solely the
attestation clause. (Fernandez v. Vergel de Dios, 46 Phil. 922).

What is the purpose of the law in requiring that the pages of


the will be numbered?

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2012 Notes Compilations onWills and Succession 60

The purpose is to prevent fraud, and to afford means of preventing


substitution of the will (Lopez vs. Leboro, 81 Phil. 429).

If the will is written on the front and reverse sides of one


sheet, must both sides be paged?

The law says page and not sheet. A sheet has two pages, the front
and the reverse sides and if both sides are used,both must be paged(See
In Re Estate of Saguinsin, 41 Phil. 875).

Can a witness sign with a cross or a mark?

The witness can sign with a cross or a mark, provided that such is
the usual signature, and provided further, that he really knows how to
read and write. Otherwise, he cannot of course be a witness (See Garcia
v. La Cuesta, L4067, Nov. 29, 1961).

What is the meaning of presence of the testator and of one


another in attesting and subscribing?

The execution of a will is a single act or transaction and cannot be


legally effective if the various participants signed on various days or
occasions and in various combinations of those present (Andalis vs.
Pulgueras, 59 Phil. 643).

Hence, it is not sufficient if the witnesses merely acknowledged


their previously affixed signatures in the presence of the testator or in
the presence of each other.

It is not, however, essential that the testator must have actually


seen the signing of the will by each one of the instrumental witnesses (In
re Will of Siason, 10 Phil. 504; Yap Tua vs. Yap Ca Kuan, 27 Phil. 579).

In the presence does not necessarily require actual seeing, but


only the possibility of seeing without physical obstruction. In Jaboneta
vs. Gustilo, 5 Phil. 541, it was said that if a witness merely turned his
back, the signing is still considered in his presence. (Could have seen it
had he chosen to)

What is the true test to determine the presence of the testator


and the witnesses in the execution of a will?

In Nera vs. Rimando, 18 Phil. 451, it was held that the true test of
presence of the testator and the witnesses in the execution of a will is not
whether they actually saw each other sign, but whether they might have

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seen each other sign, had they chosen to do so, considering their mental
and physical condition at the moment of inscription of each signature.

But it is especially to be noted that the position of the parties with


relation to each other at the moment of the subscription of each signature,
must be such that they may see each other sign of they choose to do so.
It does not depend upon proof of the fact that their eyes were actually
cast upon the paper at the moment of its subscription by each of them,
but that at the moment of its subscription and their position with
relation to each other were such that by merely casting their eyes in the
proper direction they could have seen each other sign. Thus, actual
seeing is not required, but the ability to see each other by merely casting
their eyes in the proper direction.

The testators consciousness of the fact that the attesting


signatures are being written is held to be an indispensable requirement.
If the testator is unable to move by reason of physical infirmities, this will
not prevent the act of attestation being performed in his presence.

The testator had received a severe injury, and was lying upon
his head unable to move. His sight was unimpaired, but he could
only look upward, as he was incapable of turning his head so as to
see what took place at his side.

The codicil was attested and subscribed by the three witnesses


in the same room with the testator, at a table by the side of the bed
about four feet from his head.

The contestant of the will contends that this attestation was


insufficient because the testator did not and could not see the
witnesses subscribed their names. Is the will valid?

Vision may be the usual and safest test of presence, but it is not
the only test. A man may take note of the presence of another by the
other senses, as hearing or touch. It would be against the spirit of our
statutes to hold that because a mind is blind, or because he is obliged to
keep his eyes bandaged, or because, by an injury, he is prevented from
using his sight, he is deprived of the right to make a will (Riggs vs. Riggs,
1883, 135 Mass. 938, 48 Am. Rep. 646).

After the testator and the first and second witnesses had
signed the will and all the pages thereof, the second witness stood
up and left the room just as the third witness was signing the will
and all of the pages thereof but the will was signed before he finally
left the room. Is the will valid?

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The fact that the second witness was still in the room, when he
saw the third witness moving his hand and pen in the act of affixing his
signature to the will shows that the third witness did in fact there and
then sign his name to the will. The fact that he was in the act of leaving,
and that his back was turned, while a portion of the name of the witness
was being written is of no importance. He, with the other witnesses and
the testator were together in the same room for that purpose and at the
moment when the third witness signed the document he was actually
and physically present and in such position with relation to the third
witness that he could see everything which took place by merely casting
his eyes in the proper direction, and without any physical obstruction to
prevent him from doing so, therefore, the will was in fact signed before he
finally left the room (Jaboneta vs. Gustilo, 5 Phil. 541).

A subscribing witness was in the outer room separated by a


curtain when the testator and the other witnesses signed the
instrument in the inner room. Is the will valid?

The attaching of the signatures under these circumstances is not


being done "in the presence" of the witness in the outer room. This is so
because the line of vision from this witness to the testator and the other
subscribing witnesses would necessarily have been impeded by the
curtain separating the inner from the outer one "at the moment of
inscription of each signature" (Nera vs. Rimando, 18 Phil. 450).

The true test of presence of the testator and the witnesses in the
execution of a will is not whether they actually saw each other sign, but
whether they might have been seen each other sign, had they chosen to
do so, considering their mental and physical condition and position with
relation to each other at the moment of inscription of each signature.

But it is especially to be noted that the position of the parties with


relation to each other at the moment of the subscription of each signature,
must be such that they may see each other sign if they choose to do so.
This, of course, does not mean that the testator and the subscribing
witnesses may be held to have executed the instrument in the presence
of each other if it appears that they would not have been able to see each
other sign at that moment, without changing their relative positions or
existing conditions.

What are the two distinct things required of the witnesses?

1. Attesting which is the act of witnessing; and


2. Subscribing which is the act of signing their names in the
proper places of the will.

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Both must be done.

The law requires that the will must be attested and subscribed by
three or more credible witnesses in the presence of the testator and of
one another. 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
this proof is what we call the Attestation Clause.

What is attestation clause?


The attestation clause is a record or memorandum of facts wherein
the instrumental witnesses certify that the will has been executed before
them and that it has been executed in accordance with the formalities
prescribed by law. (Toray vs. Abaja, 47 Off. Gaz. 327)

Attestation clause is mandatory A will without an attestation


clause is void and cannot be probated (In re Estate of Neumark, 46 Phil.
841).

What are purposes of attestation clause?

1) To preserve in permanent form a record of the facts attending


the execution of the will so that in case of failure of the memory of the
subscribing witnesses, or any other casualty, they may still be proved
(Leynes v. Leynes, 40 O.G. No. 7, p. 51).

2) To render available proof that there hasbeen a compliance with


the statutory requisites for the execution of the will.

3) And, incidentally, to minimize the commission of fraud or undue


inuence (57 Am. Jur. 221).

What is the difference between attestation and subscription?

Attestation if the will consists in the act of the witnesses of


witnessing the execution of the will in order to see and take note
mentally that such will has been executed in accordance with the
requirements prescribed by law. Strictly speaking, it is the act of the
witnesses not that of the testator, although it necessarily involves the
acts of the testator in the execution of the will.

Subscription, on the other hand, consists in the manual act of the


instrumental witnesses in affixing their signatures to the instrument.

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Hence, attestation is an act of the senses, while subscription is an


act of hand. The first is a mental act, while the second is a mechanical
act.

What are the purposes of attestation and subscription?

The purpose of attestation is to preserve in permanent form a


record of the facts attending the execution of the will so that in case of
failure if memory of the witnesses or in case they are no longer available,
such facts may still be proved (Leynes vs. Leynes, 68 Phil. 745).
On the other hand, the purpose of subscription is identification.

Example of a very simple attestation clause:

This Will consisting of one page was signedby the testator and by
all of us in the presence of all of us and the testator.

(Sgd.)A (Sgd.) B (Sgd.) C.

If instrumental witnesses signed the left hand margin of the


page containing an unsigned attestation clause, is the will valid?

Article 805 of the new Civil Code particularly segregates the


requirement that the instrumental witnesses sign each page of the will,
from the requisite that the will be attested and subscribed by the
instrumental witnesses. The respective intents behind these two classes
of signature are distinct from each other. Even if instrumental witnesses
signed the lefthand margin of the page containing the unsigned clause,
such signatures cannot demonstrate these witnesses undertakings in
the clause, since the signatures that do appear on the page were directed
towards a wholly-different crowd (Azuela v. CA, 487 SCRA 119, G.R. No.
122880, April 12, 2006where it was held: A will whose attestation clause
does not contain the number of pages on which the will is written is
fatally defective. A will whose attestation clause is not signed by the
instrumental witnesses is fatally defective. And perhaps most
importantly, a will which does not contain an acknowledgment, but a
mere jurat, is fatally defective. Any one of these defects is sufficient to
deny probate).46

46Azuelav. CA, 487 SCRA 119, G.R. No. 122880, April 12, 2006, the Supreme
Court explained in this wise:

For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses appear on the left-hand

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margin of the will, they do not appear at the bottom of the attestation clause which after
all consists of their averments before the notary public.

Cagro v. Cagrois material on this point. As in this case, "the signatures of the
three witnesses to the will do not appear at the bottom of the attestation clause,
although the page containing the same is signed by the witnesses on the left-hand
margin." While three (3) Justicesconsidered the signature requirement had been
substantially complied with, a majority of six (6), speaking through Chief Justice Paras,
ruled that the attestation clause had not been duly signed, rendering the will fatally
defective.

There is no question that the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the page containing the same is
signed by the witnesses on the left-hand margin.

We are of the opinion that the position taken by the appellant is correct. The
attestation clause is "a memorandum of the facts attending the execution of the will"
required by law to be made by the attesting witnesses, and it must necessarily bear
their signatures. An unsigned attestation clause cannot be considered as an act of the
witnesses, since the omission of their signatures at the bottom thereof negatives their
participation.

The petitioner and appellee contends that signatures of the three witnesses on
the left-hand margin conform substantially to the law and may be deemed as their
signatures to the attestation clause. This is untenable, because said signatures are in
compliance with the legal mandate that the will be signed on the left-hand margin of all
its pages. If an attestation clause not signed by the three witnesses at the bottom
thereof, be admitted as sufficient, it would be easy to add such clause to a will on a
subsequent occasion and in the absence of the testator and any or all of the witnesses.

The Court today reiterates the continued efficacy of Cagro. Article 805
particularly segregates the requirement that the instrumental witnesses sign each page
of the will, from the requisite that the will be "attested and subscribed by [the
instrumental witnesses]." The respective intents behind these two classes of signature
are distinct from each other. The signatures on the left-hand corner of every page
signify, among others, that the witnesses are aware that the page they are signing forms
part of the will. On the other hand, the signatures to the attestation clause establish
that the witnesses are referring to the statements contained in the attestation clause
itself. Indeed, the attestation clause is separate and apart from the disposition of the
will. An unsigned attestation clause results in an unattested will. Even if the
instrumental witnesses signed the left-hand margin of the page containing the unsigned
attestation clause, such signatures cannot demonstrate these witnesses' undertakings
in the clause, since the signatures that do appear on the page were directed towards a
wholly different avowal.

The Court may be more charitably disposed had the witnesses in this case
signed the attestation clause itself, but not the left-hand margin of the page containing
such clause. Without diminishing the value of the instrumental witnesses' signatures
on each and every page, the fact must be noted that it is the attestation clause which
contains the utterances reduced into writing of the testamentary witnesses themselves.
It is the witnesses, and not the testator, who are required under Article 805 to state the
number of pages used upon which the will is written; the fact that the testator had

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Is it essential for the validity of the will that the testator or the
person requested by him to write his name should sign the will
ahead of the three attesting witnesses? Must there be order of
signing?

The majority opinion holds that the execution of the will by the
testator and the signing of the same by the subscribing witnesses
constitute one continuous transaction, the signing by each, taking place
in the presence of the others, is sufficient and is to all intents and
purposes an attestation by the subscribing witnesses to a fact which has
already taken place, and the will is valid notwithstanding a subscribing
witness signed the will before the testator does.

Should the attestation clause be written in a language or


dialect known to the testator?

The attestation clause need not be written in a language or dialect


known to the testator since it does not form part of the testamentary
disposition (Caneda vs. Court of Appeals, 222 SCRA 781).

Should the language used in the attestation clause be known


to the attesting witnesses?

The language used in the attestation clause need not be known to


the attesting witnesses. The last paragraph of Article 805 merely requires
that, in such a case, the attestation must be interpreted to the witnesses
(Caneda vs. Court of Appeals, 222 SCRA 781).

What are the essential facts which must be stated in the


attestation clause?

1. The number of pages used upon which the will is written;

signed the will and every page thereof; and that they witnessed and signed the will and
all the pages thereof in the presence of the testator and of one another. The only proof
in the will that the witnesses have stated these elemental facts would be their
signatures on the attestation clause.

Thus, the subject will cannot be considered to have been validly attested to by
the instrumental witnesses, as they failed to sign the attestation clause.

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2. That the testator signed, or expressly caused another to sign,


the will and every page thereof in the presence of the
attesting witnesses; and

3. That the attesting witnesses witnessed the signing by the


testator of the will and all its pages, and that said witnesses
also signed the will and every page thereof in the presence of
the testator and of one another.

4. When the testator had expressly directed another to sign the


formers name in the will, this fact must be stated in the
attestation clause. Otherwise, the will is fatally defective
(Garcia vs. Lacuesta, 90 Phil. 489.)

What is the effect of lack of the above statements in the


attestation clause?

Under the third paragraph of Article 805, such a clause, the


complete lack of which would result in the invalidity of the will (Caneda
vs. Court of Appeals, 222 SCRA 781).

In Uy Coque vs. Sioca, it was held that when the attestation clause
failed to state the number of sheets or pages upon which the will was
written, the will cannot be probated (In re Will of Andrada, 42 Phil. 180).
Such statement is mandatory. Non-compliance therewith invalidates the
will. Such fact cannot be proven by evidence aliunde.

A executed a will consisting of ten pages. At the probate, B,


one of his children interposed an opposition on the ground that A
and one of the witnesses has not signed one of the pages of the
same. Rule on the opposition and cite your reasons for your ruling.

As a rule, the testator and the instrumental witnesses must sign


the will on each and every page thereof. The defect is fatal if there is
failure to have the original signatures (Estate of Tampoy vs. Alberastine,
L-14322, Feb. 25, 1960). However, if there was a mere inadvertence of
one of the three witnesses or even the testator, where he forgot to sign on
one of the pages, the will must be admitted to probate because of the
application of the liberality rule. The will must be respected, rather than
having the testator die intestate (Icasiano vs. Icasiano, L-18979, June 30,
1964).

The attestation clause of Xs will does not contain his


signature. At its probate, it is being opposed on that basis. Is the
opposition correct? Why?

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2012 Notes Compilations onWills and Succession 68

No, because the attestation clause is not an act of the testator. It is


an act of the instrumental witnesses. The testators failure to sign it is
not fatal; it is immaterial (Abangan vs. Abangan, 40 Phil. 467; Estate of
Paula Tray, L-2415, July 31, 1950; Fernandez vs. Vergel de Dios, 46 Phil.
922).
Suppose the attestation does not state the number of pages, is
the will valid? Why?

In Taboada vs. Hon. Rosal, 48 SCRA 195, the Supreme said that
even the attestation clause does not state the number of pages, if the
same can be determined from the will, it is valid. This is because of the
liberality rule or that there was substantial compliance with the law
(Singson vs. Florentino, Oct. 25, 1952; Perez vs. Rosal, 118 SCRA 195).

What is the effect if the instrumental witnesses did not sign


the attestation clause? Why?

The will is void, because the total absence of the signature of the
witnesses shows their non-participation (In re: Testate of Vicente Cagro,
April 29, 1953[92 Phil. 1032]). The attestation clause must be signed by
the witnesses at the bottom thereof, and not on the left hand margin,
otherwise, it would be easy to add such clause to a will on a subsequent
occasion and in the absence of the testator and any or all of the
witnesses.

If the entire document consists of only two sheets, the first


containing the will and the second, the attestation clause, there need not
be any marginal signatures at all (Abangan vs. Abangan, 40 Phil. 476)

Suppose the attestation clause does not state that the will was
signed by the testator in the presence of the witnesses, is the will
valid? Why?

As a rule, it is void, except if such statement is made in some other


parts of the will (Gil vs. Murciano, L-3362, March 1, 1951; Singson vs.
Florentino, Oct. 25, 1952; Perez vs. Rosal, 118 SCRA 195).

May an attesting witness sign the attestation clause by


making a mark or writing his initials?

Yes, he may do so. Even if he accidentally writes some other name


for his own, or even a description of himself, such as servant of Mr. T,
the statute is satisfied.

Is there a need for the publication of the will?

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Publication is the declaration of the testator to the witnesses that


the instrument is his will.

In this jurisdiction, although there is no provision of law requiring


publication, it is necessary that the witnesses should know that they are
attesting a will, inasmuch as the attestation clause must state that the
testator signed the will and that the witnesses themselves witnesses
and signed the will. The witnesses cannot attest to the signing of an
instrument as a will unless they know that it is one.

If the acknowledgment of the will was not signed by the notary


public in the presence of the testator and the witnesses, is the will
valid?

The notary public need not be present at the time of the execution
of the will. In Javellana vs. Ledesma, 97 Phil. 258, it was held that
whether or not the notary signed the certification of acknowledgment in
the presence of the testator and the witnesses does not affect the validity
of the will. A comparison of Articles 805 and 806 of the new Civil Code
reveals that while the testator and witnesses must sign in the presence of
each other,all that is thereafter required is that every will must be
acknowledged before a notary public by the testator and the witnesses
(Article 806); i.e. that the latter should avow to the certifying officer the
authenticity of their signatures and the voluntariness of their actions in
executing the testamentary dispositions. The subsequent signing and
sealing by the notary of his certification that the testament was duly
acknowledged by the participants therein is no part of the
acknowledgment itself nor of the testamentary act. Hence, their separate
execution out of the presence of the testator and his witnesses cannot be
said to violate the rule that testaments should be completed without
interruption.

Thus, the certification of acknowledgment need not be signed by


the notary in the presence of the testator and the witnesses. Article 806
does not require that the testator and the witnesses must acknowledge
on the same day that it was executed. Neither does the article require
that the testator and the witnesses must acknowledge in one anothers
presence. However, if the acknowledgement is done by the testator and
the witnesses separately, all of them must retain their respective
capacities until the last one has acknowledged (Testate Estate of A.
Ledesma, L-7179, June 30, 1955). However, the execution of the will
must be done in one occasion (Andalis vs. Pulgueras, 59 Phil. 643).

In the acknowledgment of the notarial will, what do the


witnesses acknowledge before the notary public?

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While the witnesses are required to participate in the


acknowledgment before the notary public, still what they will
acknowledge is not the will but attestation clause.

Note that it is the subscribing or attesting witnesses who should


acknowledge together with the testator, and not ordinary or other
witnesses.

Is it sufficient that a will is subscribed and sworn to?

The express requirement of Article 806 of the new Civil Code is


that the will is to be acknowledged, and not merely subscribed and
sworn to. The acknowledgment coerces the testator and the instrumental
witnesses to declare before an ofcer of the law that they had executed
and subscribed to the will as their own free act or deed (Azuela v. CA,
487 SCRA 119 [2006].)

If a will is duly acknowledged before a notary public, there is in its


favor the presumption of regularity (Gonzales v. Court of Appeals, L-
37453, May 25, 1979).

A notarial will not acknowledged before a notary public by the


testator and the witnesses is fatally defectiveeven if it is subscribed and
sworn to before a notary public (Azuela v. Court of Appeals, 487 SCRA
119 [2006]).

Acknowledgment is dened as an act of one who has executed a


deed in going before some competent ofcer or court and declaring it to
be his act or deed. It involves an extra-step undertaken whereby the
signor actually declares to the notary that the executor of the document
has attested to the notary that the same is his own free act and deed
(Azuela v. CA, 487 SCRA 119 [2006]).

On the other hand, a jurat is that part of an afdavit whereby the


notary certies that before him, the document was subscribed and sworn
by the executor (Azuela v. CA, 487 SCRA 119 [2006]).

May the notary public himself be a witness in a last will and


testament? Why?

No, because the notary public cannot be considered as third


instrumental witness since he could not have acknowledge before himself
his having signed the will. He cannot split his personality into two so
that one will appear before the other to acknowledge his participation in

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the making of the will. To permit such a situation to obtain would be


sanctioning a sheer absurdity (Cruz vs. Villasor, 54 SCRA 31).

Is a notarial will a public document?

A notarial will although notarized is not considered a public


document because the notary is not required to retain a copy thereof or
to file a copy with the office of the Clerk of Court where copies of
documents notarized by notaries are submitted every month. The
rationale behind is to keep the contents of the will secret so that the
testator may not be unduly pressured or influenced to change his will by
unscrupulous relatives or interested persons. The notary public is not
even allowed to read the will unless permitted by the testator. The only
time the notary public is required to read the will is when the will is
executed by a blind person (Article 808).

Can the notary public be counted as one of the attesting


witnesses?

In Cruz vs. Villasor, 54 SCRA 31, the notary public before whom
the will was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his
having signed the will. Consequently, if the third witness was the notary
public himself, he would have to avow, assent, or admit his having
signed the will in front of himself. This cannot be done because he
cannot split his personality into two so that one will appear before the
other to acknowledge his participation in the making of the will. To
permit such a situation to obtain would be sanctioning a sheer
absurdity.

Note that the affixing of documentary stamp is not required for


validity.

What are the two special requirements for handicapped


testator?

Article 807. If the testator be deaf, or a deaf-mute, he must


personally read the will, if able to do so; otherwise, he shall
designate two persons to read it and communicate to him, in some
practicable manner, the contents thereof.

Article 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.

Thus,

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A. For deaf / deaf mute testator:

1. If able to read he must read the will personally;


2. If unable to read he must designate two persons to read the
will and communicated to him in some practicable manner its
contents. The two persons designated need not be the attesting
witnesses.

B. For blind testator:

The will must be read to him twice, once by one of the


subscribing witnesses, and another time by the notary.

Is it necessary to state in the attestation clause that the will


was read to the testator?

That Article 807 has been complied with must be proved in the
probate proceedings. And this is why it would seem wise to state either in
the notarial acknowledgment or in the attestation clause itself that the
Article has been complied with. Yet, it is not essential to do so, as long as
sufcient proof (even extrinsic or parol evidence is enough) is presented.

In a case involving an illiterate testator, it was held that the fact


that the will had been read to him, need not be stated in the attestation,
and that it is sufcient if this fact is proved during the probate
proceedings (Mascarin v. Angeles, et al., L-1323, June 30, 1948).

What is the effect of failure to comply with the requisites of


reading the will under Article 808?

If the will was not read twice by the persons mentioned in the will,
the will is void.

Provision of Article 808 is mandatory. This provision is also


applicable when the testator is incapable of reading the will himself (as
when he is illiterate) (Garcia vs. Vasquez, 32 SCRA 489); or due to poor,
defective or blurred vision (Alvarado vs. Gaviola, Jr. 226 SCRA 348).

What are the distinctions between Articles 807 and 808?

1. In Article 807 (deaf or deaf-mute testator) if the testator is


literate, he must personally read the will. In Article 808
(blind testator) whether literate or not, the will must be
read to him because he cannot see.

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2. In Article 807 if illiterate, the will must be read by two


persons designated by the testator. In Article 808 whether
literate or not, the will must be read twice. The reading shall
be done by one of the subscribing witnesses and by the
notary public before whom the will is acknowledged.

3. In Article 807 reading by the two designated persons is not


enough. They must communicate the contents to the
testator. In Article 808 reading is enough because the
testator can hear and listen.

If a testator is a deaf-mute and also blind, may he still make a


will?

No, unless in some way, the contents thereof may properly be


communicated to him in accordance with the legal requirements
(Alvarado v. Gaviola, Jr., 44 SCAD 73 [1993]).

What is the effect of substantial compliance of the formal


requisites of the attestation clause?

Article 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.

Note that the article speaks only of defects and imperfections in


the form of the attestation or in the language used therein. It does not
cover the substance or the basic elements of an attestation clause which
are mandatory. If the basic requirements are omitted, like the absence of
an attestation clause, absence of the signatures of the required number
of witnesses on the attestation clause, the absence of a statement that
the testator signed the will in the presence of the instrumental witnesses,
will invalidate the will. No amount of liberal interpretation would save the
will. For the substantial compliance rule to govern, the defects of the
attestation clause must not go into the very essence of the clause itself.

What is the test in determining substantial compliance?

In determining whether the statements made in the attestation


clause comply substantially with what the law requires, the correct rule
is that omissions which can be supplied by an examination of the will
itself, without resorting to extrinsic evidence, will not be fatal; but

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omissions which cannot be supplied except by presenting evidence


aliunde will invalidate the attestation clause.

There must be a strict compliance with the substantial


requirements of an attestation clause of the will to insure its authenticity
but formal imperfections which do not affect the will, must be
disregarded so as not to defeat the testators wishes.

How can substantive defect of an attestation clause be cured?

Defects of substance can be cured only by evidence within the will


itself not by evidence aliunde (extrinsic evidence).

While Article 809 requires mere substantial compliance, still the


failure of the attestation clause to state the number of pages is a fatal
defect (See In Re Andrada, 42 Phil. 180). However, even if not in the
attestation itself, 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 a substantial compliance with the law (SeeSingson v.
Florentino, L-4603, Oct. 25, 1952; Gonzales v. Gonzales, L-3272, Nov. 29,
1951).

Clara, thinking of her mortality, drafted a will and asked


Roberta, Hannah, Luisa and Benjamin to be witnesses. During the
day of the signing of her will, Clara fell down the stairs and broke
both her arms. Coming from the hospital, Clara insisted on signing
her will by thumb mark and said that she can sign her full name
later. While the will was being signed, Roberta experienced a
stomach ache and kept going to the restroom for long periods of
time. Hannah, while waiting for her turn to sign the will, was
reading the 7th Harry Potter book on the couch, beside the table on
which everyone was signing. Benjamin, aside from witnessing the
will, also offered to notarize it. A week after, Clara was run over by a
drunk driver while crossing the street in Greenbelt. May the will of
Clara be admitted to probate? Give your reasons briefly.

Yes, the will of Clara may be probated.

A thumb mark has been considered by the Supreme Court as a valid


signature if intended by the testator to be his signature (Garcia v. La
Cuesta, G.R. No. L-4067, November 29, 1951; De Gala v. Gonzales, G.R.
No. L-37756, November 28, 1933).

The three witness rule required for the validity of an ordinary will
is satisfied provided either of the two conditions exists:

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1. Roberta could see Clara and the other witnesses sign the will at any
time while she was in the toilet, had she wanted to.

2. If Roberta could not have seen Clara and the other witnesses sign the
will, the same is valid if the will was acknowledged before a Notary Public
other than Benjamin.

It is not necessary that the testator or the witnesses should actually see
the others subscribe their names to the instrument, provided that he is
position to see them sign if he chooses (Nera v. Rimando, G.R. NO. 5971,
February 27, 1911; Yap Tua v. Yap Ka Kuan, G.R. No. L-6845, September
1, 1914). Thus, the signing must be considered to be in the presence of
Hannah, who was reading a book on the couch beside the table.

What is a holographic will?

A holographic will is one entirely written, dated and signed by the


hand of the testator.

Though Article 806 says that every willmust be acknowledged


before a notary public, it is understood to refer only to notarial or
ordinary wills, not to holographic wills.This is evident because the law
says that the acknowledgment should be by the testator and the
witnesses, and a holographic will needs no witnesses (Article 810).

What are the advantages of a holographic will?

(a) It is simple and easy to make, convenient for those who have no
means to employ lawyers or notaries, or who are timid and want to read
and re-read their wills before signing them, or who have only very little
property to dispose of;

(b) It is easier to revise;

(c) It is easier to keep secret, because it can be made without


anyone else knowing about it;

(d) It induces foreigners in this jurisdiction to set down their last


wishes.

What are the disadvantages of a holographic will?

(a) It iseasier to forge by expert falsiers because no witness or


public official intervenes in the execution;

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(b) It is easier to misunderstand since the testator may have been


faulty in expressing his last wishes;

(c) It is no guaranty as to the capacity of the testator, that is,


regarding testators soundness of mind (See 4 Castan, 336-337);

(d) There is no protection against violence, fraud, force,


intimidation, undue inuence, which may never be known in case of
immediate death of the testator;

(e) It can easily be concealed.

What are the formalities of a holographic will?

Article 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.

Thus, the following requisites of a holographic will must be


complied with:

a. The will must be in a language known to the testator; therefore, it


is not sufcient that it be interpreted to him.

b. The will must be entirely written by the hand of the testator


himself; therefore, if it is typewritten, printed, in a computer print-
out, or mimeographed, it is void. If the testator has no hands, but
can write with his foot, this would be all right, since what the law
requires is a personal distinctiveness.

c. The will must be completely dated by the hand of the testator


himself; hence, if printed, the whole will is null and void (4 Castan
341).

d. The will must be entirely signed by the hand of testator himself;

e. The will must be executed with animus testandi;

f. The will must be executed at the time holographic wills are


allowed, not before, the time of death being immaterial.

It must be noted that in Article 810, the word entirely modifies


not only the word written but also the words dated and signed.
Consequently, in order that a holographic will may be admitted to
probate, it is essential that it must be entirely written, dated and signed

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in the handwriting of the testator himself. The law exacts literal


compliance with these requirements.

Hence, the doctrine of liberal interpretation and substantial


compliance as applied to ordinary or notarial wills cannot be applied to
holographic wills.

Even the mechanical act of drafting a holographic will may be left


to someone other than the testator, as long as the testator himself copies
the draft in his own handwriting, dates it, and signs it (See Article 810).

Why should holographic wills be construed more liberally than


the ones drawn by an expert?

Taking into account the circumstances surrounding the execution


of the instrument and the intention of the parties, holographic wills are
usually prepared by one who is not learned in the law (Seangio v.
Reyes, 508 SCRA 177 [2006]). It is a fundamental principle that the
intent or the will of the testator, expressed in the form and within the
limits prescribed by law, must be recognized as the supreme law in
succession (Ibid).

Can a blind testator execute a holographic will? If so, is it


necessary that his will be read to him?

A blind testator can make a holographic will if he has the general


testamentary capacity. It is not necessary that the will be read to him as
required by Article 808 because this refers to the ordinary attested will.

How may the handwriting of the testator be proven?

The handwriting of a person may be proved by anywitness who


believes it to be the handwriting of such person because he has seen the
person write, or has seen writing purporting to be his upon which the
witness has acted or been charged, and has, thus, acquired knowledge of
the handwriting of such person (Batulanon v. People, 502 SCRA 35
[2006]).

Handwriting experts are usually helpful in the examination of


forged documents, but resort to these experts is not mandatory or
indispensable to the examination or the comparison of handwriting, and
because the judge must conduct an independent examination of the
questioned signature in order to arrive at a reasonable conclusion as to
its authenticity (De Jesus v. CA, 491 SCRA 325 [2006]).The opinions of
handwriting experts, although helpful in the examination of forged

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documents because of the technical procedure involved in the analysis,


are not binding upon the courts. Resort to these experts is not
mandatory or indispensable to the examination or the comparison of
handwriting (G & M Philippines, Inc. v. Cuambot, 507 SCRA 552 [2006]).
In other words, [t]he opinion of handwriting experts are not necessarily
binding upon the courts. (Gulam v. Santos, 500 SCRA 413 [2006]).

Can a letter be a holographic will?

A person can make a holographic will in the form of a letter in


which he states his testamentary dispositions, giving to the said letter
the real character of a will. There must be, however, a manifest intent to
make a testamentary act and a disposition of all or part of the writers
property effective upon his death.

If the signature of the testator on a holographic will is a mark,


such as a cross or a thumb mark, is it valid?

The will is not valid for failure to comply with an essential


requirement.

Is it required that the testator must sign the holographic will


with his full signature?

Article 810 does not so require, although this is required under


Article 814 when it comes to the authentication of an insertion,
cancellation, erasure or alteration. Consequently, the testator may sign
the will with his initials, or nickname, or appellation. All the law requires
is that such signature must be entirely signed by the hand of the
testator.

The holographic will of A has no date except the one found on


the second page of the same. Is the will valid? Why?

Yes, since the law does not specify any particular location where
the date should be placed (Labrador vs. CA, 184 SCRA 170).

What is the rule as to the date that must be written in a


holographic will?

The date must be complete, that is, it must contain the year,
month, and day. Independence Day, 2002 would be all right, however,
since here, there is no doubt as to the exact date. June 8/02 would
also be sufcient, since it is understood that the year is 2002. But
June 8, 200__ would not be proper, since the date would then be
considered incomplete (See 5 Valverde, 83-84).

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Although generally the date should be the true one,an incorrect


date, as long as it was made in good faith, does not invalidate the will
(TS, Dec. 5, 1957). A simple involuntary mistake as to the correct date,
when there are other statements or material elements in the will which
fix the date with certainty, does not invalidate the will.

But if the wrong date was inserted intentionally, it is as if there is


no date, hence, the will is considered void (See 4 Castan 341).

In Roxas v. De Jesus, Jr., GR 38338, Jan. 28, 1985, it was held that
while as a general rule, the date in a holographic will should include
the day, month, and year of its execution, however, when as in the case
at bar, there is no appearance of fraud, bad faith, undue inuence and
pressure and the authenticity of the will is established and the only issue
is whether or not the date Feb./61 appearing on the holographic will is
a valid compliance with Article 810 of the Civil Code, probate of the
holographic will should be allowed under the principle of substantial
compliance.
The date Christmas day 1990 is a substantial compliance with the
requirements of the law (Roxas vs. De Jesus, Jr. G.R. No. 38338, Jan. 28,
1985[134 SCRA 245]). The law has a tender regard for the will of the
testator expressed in his last will and testament because the testators
disposition is better than that which the law can make.

What is the concept of probate of holographic wills?

Probate is the allowance of a will after proving before a competent


court:

1. Its due execution by the testator; and


2. Its compliance with the solemnities prescribed by law.

Unless a will is allowed probate, it shall not pass any property. And
the effect of the probate of a will I that it is conclusive to its due
execution. Probate is limited however to the formal or extrinsic validity
of the will.

The probate of notarial wills is governed by Article 838.

What are the issues to be resolved in the probate of a


holographic will?

In a petition to admit a holographic will to probate, the only issues


to be resolved are the following:

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1. Whether the instrument submitted is, indeed the


decedents last will and testament;

2. Whether said will was executed in accordance with the


formalities prescribed by law;

3. Whether the decedent had the necessary testamentary


capacity at the time the will was executed; and

4. Whether the execution of the will and its signing were


the voluntary acts of the decedent (Ajero vs. CA).

In the probate of a holographic will, how many witnesses must


be presented?

Article 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.

If the testator himself, while he is still living, will present his


holographic will for probate, shall the requirements of Article 811
still have to be complied with?

According to Section 12, Rule 76 of the Rules of Court, Where the


testator himself petitions for the probate of his holographic will and no
contest in filed, the fact that he affirms that the holographic will and the
signature are in his own handwriting, shall be sufficient evidence of the
genuineness and due execution thereof. If the holographic will is
contested, the burden of disproving the genuineness and due execution
thereof shall be on the contestant. The testator may, in his turn, present
such additional proof as may be necessary to rebut the evidence for the
contestant.

Can a holographic will be probated upon the testimony of


witnesses? Is it necessary to produce the document itself? Can a
lost holographic will be probated?

In Gan vs. Yap, 104 Phil. 509, if the holographic will has been lost
or destroyed and no other copy is available, the will cannot be probated

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because the best and only evidence is the handwriting of the testator in
said will.

Can a holographic will be proven by a photostatic or Xerox


copy?

A photostatic or Xerox copy of the holographic will may be allowed


because a comparison can be made with the standard writings of the
testator (Rodelas vs. Aranza, 119 SCRA 16). In Gan vs. Yap, the Court
ruled that the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of witnesses
who have seen and/or read such will. The will itself must be presented;
otherwise, it shall produce no effect. The law regards the document itself
as material proof of authenticity. But in Footnote 8 of said decision, it
says that Perhaps it may be proved by a photographic or photastatic
copy. Even a mimeographed or carbon copy; or by other similar means, if
any, whereby the authenticity of the handwriting of the deceased may be
exhibited and tested before the probate court.

Where should the testator sign the holographic will?

Article 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.

Thus, it is inferable from the wordings of Article 812 that the


testator should sign at the end of the will. Any additional provision after
the signature of the testator must further be signed and dated. Clearly
then, the signature must be placed at end of the dispositions.

What are the formal requirements for additional dispositions


in a holographic will?

Article 813. When a number of dispositions appearing in


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

Thus, when there are several additional dispositions in a


holographic will, the following requirements must be complied with:

1. The additional dispositions must be signed and dated; or


2. An additional disposition must be signed and may not be dated,
but the last disposition must be signed and date.

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If, in the case of several additional dispositions the additional ones


before the last are dated but not signed, only the last will be valid,
provided the last is signed and dated.

Summary:

If the last disposition is signed and dated

a. Preceding dispositions which are signed but not dated are


validated.
b. Preceding dispositions, which are not signed but dated, are
void.
c. Preceding dispositions which are not signed and not dated are
void, unless written on the same date and occasion as the latter
disposition

The discussion above presupposes that the latter disposition was


dated and signed by the testator himself.

Therefore;
a. If done by another, without the testators consent, same
will not affect the previous dispositions, which remain
void if in themselves void; and remain valid if in
themselves valid.
b. If done another with the testators consent, same effects
in (d), because the latter disposition is not really
holographic (not done by the testator himself.)

What is the requirement in case of any insertion, cancellation,


erasure or alteration in a holographic will?

Article 814. In case of any insertion, cancellation, erasure


or alteration in a holographic will, the testator must authenticate
the same by his full signature.

Suppose there is an alteration without the full signature, is


the whole will void?

No, only the alteration is void. However, if what was altered was
the date or the signature, the alteration without the full signature makes
the whole will void.

What does full signature mean for purposes of authenticating


an insertion, cancellation, erasure or alteration in a holographic
will?

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Full signature does not necessarily mean the testators full name;
it rather means his usual and customary signature.

What is the effect if the date of the holographic will was


altered without the full signature of the testator?

It makes the whole will void (TS, Apr. 3, 1905).

A executed a holographic will in 1962. He authenticated or


signed the will with his initials. In addition, there is an inserted
testamentary disposition found in page two of the will also
authenticated with his initials. Are such authentications valid?
We must distinguish. The act of A in signing the will with his
initials is a valid authentication. This is clear from Article 810. The law
merely requires that the will must be entirely written, dated and signed
by the hand of the testator himself. However, the act of A in
authenticating the inserted testamentary disposition with his initials is
not a valid authentication. This is clear from Article 814, which declares
that in case of any insertion, cancellation, erasure or alteration in a
holographic will, the testator must authenticate the same by his full
signature.

Give the rules governing the formal validity of wills.

Article 815. When a Filipino is in a foreign country, he is


authorized to make a will in any of the forms established by the
law of the country in which he may be. Such will may be probated
in the Philippines.

Article 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.

Article 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.

Articles 815, 816 and 817 lay down the rules of formal validity of
wills for:

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1. A Filipino abroad (Article 815)


2. An alien abroad (Article 816)
3. An alien in the Philippines (Article 817)

Not covered is a situation of a Filipino executing a will in the


Philippines

Every testator, whether Filipino or alien, wherever he may be, has


five choices as to what law to follow for the form of his will:

1. The law of his citizenship (Articles 816 and 817 for aliens; applying
to Filipinos by analogy, Article 15);
2. The law of the place of execution (Article 17);
3. The law of his domicile (Article 816 for aliens abroad; applying to
aliens in the Philippines and to Filipinos by analogy);
4. The law of his residence (Same basis as [3]);
5. The Philippine law (Articles 816 and 817 for aliens, Article 15,
applying to Filipinos by analogy).

Thus:

1. If the testator is a Filipino and the will is executed in the


Philippines, then its formal validity is governed by the Civil code
of the Philippines (Article 17).

2. If the testator is a Filipino and the will is executed in a foreign


country, then its formal validity is governed either (a) by the law
of the place where the will is made, or (b) by the Civil Code of
the Philippines. It must be observed that Article 815 of the New
Civil code does not state that a will made by a Filipino in a
foreign country may be executed in accordance with the
formalities prescribed by the Civil Code of the Philippines. In
spite of the omission, however, it is submitted that such a will
may still be admitted to probate in the Philippines. Not to grant
this concession to Filipino citizens would be illogical and unfair
considering the fact that it is even granted to foreigners (Article
816).

3. If the testator is a foreigner and the will is executed in the


Philippines, then its formal validity is governed either (a) by the
Civil Code of the Philippines (Article 17), or (b) by the law of his
own country (Article 817).
4. If the testator is a foreigner and the will is executed in a foreign
country, then its formal validity is governed either (a) by the law
of the place where the will is made (Article 17), or by the law of

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his own country (Article 816), or by the law of the country


where he resides, or (d) by the Civil Code of the Philippines.

What is a joint will? Distinguish it from mutual and reciprocal


wills.

A joint will is a single testamentary instrument which contains the


wills of two or more persons jointly executed by them, either for their
reciprocal benefit or for the benefit of a third person.
Mutual wills are wills executed pursuant to an agreement between
two persons to dispose of their property in a particular manner, each in
consideration of the other.
Reciprocal wills are wills in which the testators name each other as
beneficiaries under similar testamentary plans.
It is clear from these definitions that a joint will may either be
mutual or reciprocal, although it is not necessary so, just as mutual or
reciprocal wills may be joint of they are contained in a single
testamentary instrument.

Are joint wills allowed?

Article 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.
Article 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.

Hence,
1. If executed by Filipinos in the Philippines (Article 818) void.
2. If executed by Filipinos abroad (Article 819) void even if
authorized by the law of the place of execution (an exception
to the permissive provision of Articles 17 and 815)
3. If executed by aliens abroad governed by Article 816.
4. If executed by aliens in the Philippines controverted: One
view void; because of public policy; Another view Article
817 governs.

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5. If executed by a Filipino, always void; as to the alien, [3] or


[4] would apply.

Although the general rule is that a will may be made by a Filipino


who is abroad in accordance with the formalities prescribed by law in the
country where the will is executed (Articles 17 and 815), Article 819
creates an exception to the rule. A joint will is against public policy of the
Philippines.

May a husband and wife make mutual or reciprocal wills


contained in separate instruments?

Yes, what is prohibited is the execution of a joint will or a will


contained in the same instrument either for their reciprocal benefit or for
a benefit of a third person.Reciprocal wills between a husband and wife,
as long as not made jointlyare valid (Araniera v. Rodriguez, et al., 46 O.G.
584). This is true even if the same witnesses are used (57 Am. Jur. Wills,
Sec. 682).

What are reasons why joint wills are void?

(a) A will is purely personal and unilateral act, and this defeated if
two or more persons make their wills in the same instrument.

(b)To allow as much as possible secrecy, a will being a purely


personal act.

(c) To prevent undue inuence by the more aggressive testator on


the other (Dacanay v. Florendo, et al., 48 O.G. 81).

(d) In case of death of the testators at different times, probate


would be harder.

(e) It is contrary to the revocable character of a will. It militates


against the right of a testator to revoke his will at any time. (Example:
One testator would be prevented from revoking by an overt act, like
tearing or burning, for the other may not agree.)

(f) In case of a husband and wife, one may be tempted to kill the
other (In re Will of Bilbao, 47 O.G. [Sup. 12] 331, L-3200, Aug. 2, 1960).

Wills that are not joint wills?

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(a) Those made on a single sheet of paper, the rst on the front,
and the second on the reverse side. Reason: There are really two wills
here.

(b) Those made even on the same page with or without a dividing
line between them, but neither combining the signature of both together.
Reason: Here again there are really two instruments or two wills, which
are independent of each other.

SUBSECTION 4. WITNESSES TO WILLS

What are the qualifications for witnesses to notarial wills?

Article 820. Any person of sound mind and of the age of


eighteen years or more, and not blind, deaf or dumb, and able to
read and write, may be a witness to the execution of a will
mentioned in article 805 of this Code.

Who are disqualified to be witnesses to notarial wills?

Article 821. The following are disqualified from being


witnesses to a will:

(1) Any person not domiciled in the Philippines;

(2) Those who have been convicted of falsification of a


document, perjury or false testimony.

Thus, there are six requirements for one to be a witness to a


notarial will:

At the time of attesting, they must;

a. be of sound mind
b. be at least 18 years of age
c. be able to read and write
d. not be blind, deaf, or dumb
e. be domiciled in the Philippines
f. not have been convicted (by final judgment) of falsification of
a document, perjury, or false testimony

If a person has the capacity to make a will, does he also have


the capacity to be an instrumental witness?

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If a person has the capacity to make a will, it does not necessarily


follow that he can qualify as an instrumental witness. A blind, deaf or
dumb person or even a deaf-mute can make a will, but he cannot be a
witness to the making of a will. A person who cannot read and write can
make a will, but he cannot be a witness to the making of a will.

What is the reason of the law in disqualifying persons who are


not domiciled in the Philippines to be an instrumental witness?

The reason for the inclusion of the requirement that an


instrumental witness must be domiciled in the Philippines is because a
person not domiciled in the Philippines would be practically useless
during the probate of the will.

What are the reasons for the requirement of Philippine domicile of


witnesses?

(a) The assurance that the witness will be available at the time the
will is presented for probate; and

(b) The likeliness of personal acquaintance with the testator,


hence, greater credibility as a witness, for example, on the soundness of
mind of the testator.

Is it essential that the witness be a citizen of the Philippines?

It is not essential that the witness be a citizen of the Philippines,


for domicile is what the law merely requires. Domicile is dened in Article
6 of the new Civil Code as the place of habitual residence.

When a will is executed in a foreign country, is it required that


the witnesses by domiciled in the Philippines?

No, because the reason of the requirement that the witnesses must
be domiciled in the Philippines ceases to exist.

What is the reason of the law in disqualifying blind, deaf, dumb


and illiterate persons to be instrumental witnesses?

The reason for the inclusion of the requirements that an


instrumental witness must not be blind, deaf-mutes and must be literate
is, the testimony of the attesting witness will be required. Consequently,
it will be difficult for an illiterate witness to give an intelligent testimony.
The same thing can be said of a deaf-mute or a person who is either
blind or deaf or dumb.

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What is the reason of the law in disqualifying those who have


been convicted of falsification of a document, perjury or false
testimony to be instrumental witnesses?

The reason for the disqualification is that a person convicted of


falsification of a document, perjury or false testimony is unworthy of
credence.

Note that regarding convicts, only three crimes have been


mentioned: (a) falsication of a document (whether the document be
public, commercial, or even private); (b) perjury; and (c) false testimony

By implication, conviction for other crimes such as murder or


arson or rape cannot be said to be a disqualication.

What is the effect of pardon to a convict?

(a) If the pardon was given because of the mans innocence, as


when somebody else had been proved to be the really guilty person, he
can now act as a witness to a will. This is because there is no mental
dishonesty.

(b) If the absolute pardon was an act of Executive grace of


clemency, it is submitted that the disqualication remains, for even an
absolute pardon does not remove civil consequences. The would-be
witness still has a taint of mental dishonesty.

When is competency of the witness to a notarial will


determined?

The competency of a witness to a will is to be determined as of the


time of the execution of the instrument, and not as of the time the will is
presented for probate.

What is the result of subsequent incapacity of a witness to a


notarial will?

Article 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.

Conversely, if the witness is incompetent when he signed the will,


his subsequent competency, in the absence of an enabling statute, will
be of no avail.

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How is competence of an instrumental witness distinguished


from credibility to be a witness in court?

In Gonzales vs. CA, 90 SCRA, 183, it was held that in the strict
sense, the competency of a person to be an instrumental witness to a will
is determined by the statute, that is Articles 820 and 821, whereas his
credibility depends on the appreciation of his testimony and arises from
the belief and conclusion of the Court that said witness is telling the
truth. Competency as a witness is one thing, and it is another to be a
credible witness, so credible that the Court must accept what he says.
Trial courts may allow a person to testify as a witness upon a given
matter because he is competent, but may thereafter decide whether to
believe or not to believe his testimony.

Thus, the rule is that the instrumental witness in order to be


competent must be shown to have the qualifications under Articles 820
and none of the disqualifications under Article 821 and for their
respective testimony to be credible, that is worthy of belief and entitled
credence, it is not mandatory that evidence be first established on record
that the witnesses have a good standing in the community or that they
are honest and upright or reputed to be trustworthy and reliable, for a
person is presumed to be such unless the contrary is established
otherwise. In other words, the instrumental witnesses must be
competent and their testimonies must be credible before the court allows
the probate of the will they have attested.

The term credible witness or witnesses means competent


witnesses and not those who testify to facts from or upon hearsay
evidence.

Capacity to be a witness in court (Rule 130, Section 20, Revised


Rules of Evidence) 47 is different from capacity to be a witness in wills.
The latter has more restrictions.
A credible witness is one possessed of the qualications imposed
by law. He must be able or competent to testify (Costigan on Wills, pp.
188-191). At the probate, however, the testimony of the witnesses need
not be a detailed or accurate account of the proceedings (one, for
instance, which would recall the exact order for the signing of the
document by the witnesses) (Javellana v. Javellana, L-13781,Jan. 30,
1960).

47Section 20. Witnesses; their qualifications. Except as provided in the next


succeeding section, all persons who can perceive, and perceiving, can make known their
perception to others, may be witnesses.

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Is it necessary that the instrumental witnesses must know the


contents of the will?

The law does not require it. All the law requires is that they must
attest and subscribe the will in the presence of the testator and of each
other. To attest and subscribe do not mean that they must read the will
or comprehend the contents thereof. Hence, even if the will is written in a
dialect or language unknown to them, the requirements of the law are
still complied with.

If the attestation clause is written in a dialect or language


unknown to the instrumental witnesses, it is sufficient that the same be
interpreted to them.

X made a notarial will with A, B and C as witnesses. Aside from


the other testamentary provisions in the will, A was given a piece of
land as a devise. Is the will valid?

The will is valid, since there were three credible witnesses.


However, while A is capacitated as a witness, he is incapacitated to
receive the devise, hence the provision regarding said devise should be
disregarded, the rest of the will being valid.

Article 823: If a person attests the execution of a will, to


whom or to whose spouse, or parent, or child, a devise or legacy is
given by such will, such devise or legacy shall, so far only as
concerns such person, or spouse, or parent, or child of such person,
or any one claiming under such person or spouse, or parent, or
child, be void, unless there are three other competent witnesses to
such will. However, such person so attesting shall be admitted as a
witness as if such devise or legacy had not been made or given.

This article does not refer to the disqualification of a devisee or


legatee and their spouse, parent or child from becoming a witness to the
will but to disqualification to inherit.

It is believed that an instituted heir, or his spouse, parent or child


is likewise disqualified. The disqualification is intended to apply to one
succeeding by will, and it is immaterial in what concept he succeeds.
This conclusion is strengthened by the rule on relative incapacity to
inherit, provided in Article 1027, paragraph 4, which makes no
distinction between heirs, legatees and devisees.

The rule in Article 823 is reiterated in Article 1027, paragraph 4


which states that any attesting witness to the execution of a will, as well
as his spouse, parents, or children, or anyone claiming under such

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witness, spouse, parents or children (e.g. the creditor of the witness if the
said creditor has not been paid), are incapable of succeeding from the
testator.

Other relatives of the witness, like his brother or sister, to whom a


devise or legacy has been given, can get the inheritance.

What is the purpose of the law in making such


disqualification?

To prevent undue influence

What is the effect if the disqualified witness is a compulsory


heir?

The compulsory heir is still entitled to his legitime but is


disqualified from being a voluntary heir.

Can creditors of the estate of the testator act as instrumental


witnesses to a will?

Yes. But he is disqualified to inherit. However, he is qualified to


receive his credit, which after all cannot be considered a gift.

Article 824, A mere charge on the estate of the testator for


the payment of debts due at the time of the testator's death does
not prevent his creditors from being competent witnesses to his
will.

Can a witness who is disqualified to inherit under Articles 823


and 824 still be a witness in court?

Yes. Although he is disqualified to inherit, he is not disqualified to


testify. He can attest to the due execution of the will at the probate
hearing. He will be admitted as a witness as if the devise or legacy had
not been made or given.

SUBSECTION 5. CODICILS
AND INCORPORATION BY REFERENCE

What is a codicil?

Article 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

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part thereof, by which any disposition made in the original will is


explained, added to, or altered.

Codicil is derived from the Latin codex and literally means a


little code or a little will (although, of course, physically it may be larger
or longer than a will) (See Cyc. Law Dic. 179).

The word codicil imports a reference to some prior paper as a


will. There may, however, be a valid codicil to a revoked will. At first
codicils were writings actually attached to the will, but this is no longer
necessary; when they are separate documents, the codicils referring to
and ratifying the will may be said to incorporate the will by reference, or
to republish the will.

In order to operate as a republication of the will, it is sufficient if


the codicil refers to the will in such a way as to leave no doubt as to the
identity of that instrument. A reference to the will in the codicil
constitutes a sufficient identification of the will.

What is the difference between a codicil and a subsequent


will?

After a testator has already made a will, a subsequent instrument


mortis causa may either be a codicil or a new will. If the subsequent
instrument explains the original will, or alters or adds it, then it is a
codicil. But if the later instrument makes dispositions independent of
those in the original will, without explaining or modifying such original
will, then it is a new will, not a codicil. A codicil is always related to some
prior will.

Can a codicil be made before a will?

A codicil, since it refers to a will, cannot be made before a will; it is


always made after. (Of course, even the codicil may later on be revoked
by another will or codicil).

What requirement must be complied with in order that a


codicil may be effective?

Article 826 provides that it is required that In order that a


codicil may be effective, it shall be executed as in the case of a
will.

This means that the testator must also possess testamentary


capacity and must comply with the formalities prescribed by law in the
execution of a will.

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How is a codicil distinguished from a subsequent will?

A codicil, by definition, explains, adds to, or alters a disposition in


a prior will; while a subsequent will makes independent and distinct
dispositions.

The distinction, however, is purely academic because Article 826


requires the codicil to be in the form of a will anyway.

What is the rule in case of conflict between a will and a


codicil?

The codicil should prevail, it being the later expression of the


testators wishes.

What is incorporation by reference?

A will, duly executed and witnessed according to statutory


requirements, may incorporate into itself by an appropriate reference a
written paper or document which is in existence at the time of the
execution of the will, irrespective of whether such document is one
executed by the testator or a third person, whether it is in and of itself a
valid instrument, provided the document referred to is identified by clear
and satisfactory proof. If so incorporated, the extrinsic paper takes effect
as part of the will and is admitted to probate as such.

What is the purpose of the law in allowing incorporation by


reference?

The purpose of the Article is to provide for those cases when a


testator wishes to incorporate to his will only by reference (i.e., without
copying the whole thing) certain documents or papers, especially
inventories and books of accounts (Report of the Code Commission, p.
108).Thereby, the testator is able to save time and energy.

What are the requisites for a valid incorporation by reference?

Article 827. If a will, executed as required by this Code,


incorporates into itself by reference any document or paper, such
document or paper shall not be considered a part of the will unless
the following requisites are present:

(1) The document or paper referred to in the will must be in


existence at the time of the execution of the will;

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(2) The will must clearly describe and identify the same,
stating among other things the number of pages thereof;
(3) It must be identified by clear and satisfactory proof as the
document or paper referred to therein; and
(4) It must be signed by the testator and the witnesses on each
and every page, except in case of voluminous books of account or
inventories.

The general rule is that an instrument which is not executed in


accordance with the formalities of a will shall not be probated. The
exception is given in Article 827 which permits incorporation by reference
provided the requisites enumerated are present.

Notes:

1. In No. (1), if the document or paper was prepared after the


execution of the will, the validity of the will is not affected. The
reference to the writing must appear on the face of the will. That
the document was in existence at the time the will was made can
be proved by extrinsic evidence.

2. In No. (2), the pages must be stated even if the writing consists of
voluminous books of accounts or inventories mentioned in No. (4).
The description and identification of the writing, and the statement
of the number of pages thereof must likewise appear on the face of
the will.

3. In No. (3), the identification of the writing may be shown by


extrinsic evidence.

Note that Article 827 can refer only to such documents as


inventories, books of accounts, documents of title, and papers of
similar nature; the document should, under no circumstances,
make testamentary dispositions, for then the formal requirements
for will would be circumvented.

In the signing of documents or papers (when not voluminous),


there is no need to make an attestation clause. The attestation
clause on the will is enough (Unson vs. Abella, 43 Phil. 494).

To establish a separate writing as part of a will by


incorporation, what are the three things that must appear on the
face of the will?

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On the face of the will, these must appear:

1. There must be a distinct reference to such writing, so explicit, it


has been held, as to identify it beyond doubt; but much less often
been held sufficient, and parol evidence is of necessity received to
identify the writing.

2. The reference must indicate that the writing has already been
made, that is, must speak of it as then existing. It is not enough
that the writing was in fact made before the will; the will must
speak of it as then made.

3. It can be given effect only in case, and to the extent that, such
appears from the face of the will to have been the wish of the
testator.

When the writing is offered, what are the two things that must
be shown by extrinsic evidence?

1. That it is the very writing referred to in the will; and


2. That it was in fact made before the will was executed.

What is the effect if future papers are incorporated in the will?

Reference to future papers will render the incorporation void (See


In Re Goods of Pied, 38 LJ, [NS] Pand M 1). However, the will itself
remains valid.

Can holographic will incorporate documents by reference?

The test of Article 827 suggests a negative answer. Paragraph 4 of


the article requires the signatures of the testator and the witnesses on
every page of the incorporated documents (except voluminous annexes).
It seems, therefore, that only attested will can incorporate documents by
reference, since only attested wills are witnesses (unless, of course, the
testator executes a holographic will, and superfluously, has it witnessed).

Also, a holographic will requires that its contents be in the


handwriting of the testator, thus if the other instrument is not entirely in
the handwriting of the testator, it is submitted that there can be no valid
incorporation by reference in a holographic will.

Must the codicil conform to the form of the will to which it


refers? (That is, a holographic codicil for a holographic will, and
notarial codicil for a notarial will?)

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The law does not require this. Thus, an attested will may have a
holographic codicil; a holographic will may have an attested codicil. It is
enough that the codicil has the formalities of a will. Article 826 requires
that the codicil be executed as in the case of a will, not of the will.

Must the documents or inventories, when referred to in a


notarial will need an attestation clause?

Said documents or inventories, when referred to in a notarial will,


do not need any attestation clause, because the attestation clause of the
will itself is sufcient (Unson v. Abella, 43 Phil. 494).

SUBSECTION 6. REVOCATION OF WILLS


AND TESTAMENTARY DISPOSITIONS

What is revocation of wills?

Revocation as applied to wills is an act of the mind, terminating


the potential capacity of the will to operate at the death of the testator,
manifested by some outward or visible act or sign, symbolic thereof.

When may the testator revoke his will?

Article 828. A will may be revoked by the testator at any


time before his death. Any waiver or restriction of this right is
void.

Why is a will essentially revocable?

From the definition of a will, the instrument does not pass a


present interest or right in property, and such right or interest does not
take effect until the death of the testator. During his lifetime it is entirely
operative and is wholly ineffective for any purpose until his death.

A will being a unilateral disposition of property, acquiring binding


force only at the death of the testator, it follows that no present rights are
conferred at the time of its execution, and no title vests in the beneficiary
during the life of the testator. Comparison may be made between a will
and an undelivered deed or power of attorney containing an expression of
a purpose not yet effective, but ceases to be ambulatory on the death of
the maker, acquires a fixed status, and operates to pass title.

Distinguish between revocation and nullity.

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Both revocation and nullity of will have the common purpose of


depriving a last will of legal effect. They differ in the following respects:

1. Revocation is by the act of the testator, while nullity proceeds from


the law;
2. Revocation presupposes a valid act, while nullity is inherit in the
testament, be it an intrinsic or an extrinsic defect;
3. Revocation takes place during the lifetime of the testator, while
nullity is invoked after his death by intestate or compulsory heirs;
4. The testator cannot renounce the right to revoke, while the nullity
of a will can be disregarded by the heirs through voluntary
compliance therewith.

What law governs revocation of will?

Article 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.

It is evident from the provisions of Article 829 that the only time
when the testator may revoke his will either in accordance with the law
of the place where the will was made or in accordance with the law of the
place of his domicile at the time is when he is not domiciled in the
Philippines. In all other cases, the law which governs the revocation is
the law of the Philippines.

Consequently, the rules may be restated as follows:

1. If the act of revocation takes place in the Philippines, it is essential


that it must be done in accordance with the laws of the
Philippines. This is true whether the testator is domiciled in this
country or in some other country.
2. If the act of revocation takes place outside of the Philippines by a
testator who is domiciled in the Philippines, it is essential that it
must be done in accordance with Philippine laws.
3. If the act of revocation takes place outside of the Philippines by a
testator who is not domiciled in the Philippines, it is essential that
it must be done in accordance with the laws of the place where the
will was made or in accordance with the laws of the place where
the testator had his domicile at the time of revocation.

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Summary of the conflicts rules for revocation of wills:

a. For revocation outside the Philippines:


(1) If not domiciled in the Philippines:

a) follow the law of the place where the will was


made; or

b) follow the law of the place where the testator


was domiciled at that time.

(2) If domiciled in the Philippines (this situation is not


covered by Article 829):

a) follow the law of the Philippines (since his


domicile is here); or

b) follow the general rule of lex loci celebrationis of


the revocation; or

c) follow the law of the place where the will was


made (by analogy with the rules on revocation
where the testator is a non-Philippine
domiciliary)

b. If revocation is in the Philippines, follow Philippine law.

What are the modes of revoking a will under Philippine law?

Article 830. No will shall be revoked except in the following


cases:

(1) By implication of law; or

(2) By some will, codicil, or other writing executed as


provided in case of wills; or

(3) By burning, tearing, cancelling, or obliterating the will


with the intention of revoking it, by the testator himself, or by
some other person in his presence, and by his express direction. If
burned, torn, cancelled, or obliterated by some other person,
without the express direction of the testator, the will may still be
established, and the estate distributed in accordance therewith, if
its contents, and due execution, and the fact of its unauthorized

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destruction, cancellation, or obliteration are established according


to the Rules of Court.

What is revocation by implication of law?

It is the revocation of a will by the occurrence of certain


circumstances not specifically mentioned in the statues which prescribe
the methods of revocation.

The doctrine of implied revocation is that the revocation of a will is


to be implied from certain changes in the family or domestic relations of
the testator, or in his property, or involving the beneficiaries of his will,
from which the law infers or presumes that he intended a change, either
total or partial, in the disposition of his property.

The rule is based on the theory that by reason of such changes new
moral duties and obligations have accrued to the testator subsequent to
the date of the will.

What is the reason for allowing revocation by implication of


law?

There may be certain changes in the family or domestic relations or


in the status of his property, such that the law presumes a change of
mind on the part of the testator.

What are the instances of revocation by implication or


operation of law?

There are five instances when a will, or more accurately, a


testamentary disposition may be revoked by implication of law, to wit:

1. When there is preterition 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 (Article 854). In
such case, the preterition shall annul the institution of heirs;

2. When there is a decree of legal separation (Article 63, FC; Article


106, No. 4 NCC). In such case, provisions in favor of the offending
spouse made in the will of the innocent spouse shall be revoked by
operation of law;

3. When the heir, devisee or legatee commits any acts of


unworthiness which by express provision of Article 1032 will
incapacitate a person to succeed. In such case, any testamentary
disposition in favor of such heir, devisee or legatee is revoked;

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4. When the testator transforms the thing bequeathed in such a


manner that it does not retain either the form or denomination it
had, or when he aliens by any title or for any cause the thing
bequeathed or any part thereof, or when the thing bequeathed is
totally lostduring the testators lifetime or after his death without
the heirs fault. In such cases, the legacy is revoked (Article 957);

5. When in the testators will there is a legacy of a credit against a


third person or of the remission of a debt of the legatee, and
subsequently, after the execution of the will, the testator brings an
action against the debtor for the payment of his debt. In such case,
the legacy is revoked (Articles935, 936).

Suppose the testator never intended to change his mind (for


example, a car in legacy was sold but the testator nevertheless
intended to give the cash equivalent to the legatee), should there
still be revocation by implication of law?

Generally, yes. What the testator should do in a case like this is to


manifest his unchanged mind by executing a new will or codicil.
American Jurisprudence provides: Where the revocation of a will is
presumed by law from a change in the testators circumstances, evidence
is generally not admissible to rebut the presumption, at least not
evidence of subsequent unexecuted intentions of the testator (57 Am.
Jur., Wills, Sec. 521). In some cases though, if the subsequent intention
has been executed or manifested by a new will, for instance, said new
will must prevail.

How may a will be expressly revoked by subsequent


instrument?

According to No. 2 of Article 830, a will may be revoked by some (1)


will, (2) codicil, or (3) other writing executed as provided in case of wills.

What are the kinds of revocation by subsequent instrument?

Revocation by a subsequent instrument may be express or implied.

When is there express revocation by subsequent instrument?

There is express revocation when in a subsequent will, codicil, or


other writing executed as provided in case of wills, there is a revocatory
clause expressly revoking the will or a part thereof.

When is there implied revocation by subsequent instrument?

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There is implied revocation when the provisions of the subsequent


will or codicil are partially or absolutely inconsistent with those of the
previous will.

It is evident that whether the revocation is express or implied it


may be either total or partial depending upon the circumstances of each
case.

How may express revocation be effected by a subsequent


instrument? How may implied revocation be effected by a
subsequent instrument?

It is evident that while express revocation may be effected by (1) a


subsequent will, or (2) codicils, or (3) non-testamentary writing executed
as provided in case of wills, implied revocation may be effected only
either by (1) a subsequent will or (2) codicil. It cannot be effected by a
non-testamentary writing executed as provided in case of wills since
such writing does not contain any affirmative disposition of property
which can be said to be inconsistent with the dispositions contained in
the will.

As regards revocation by a codicil, ordinarily, a codicil to a will is a


republication thereof. If the revocation is partial, it will have the effect of
republishing the will as of the date of the codicil with respect to all parts
not revoked. If the revocation is total, there is no republication.

As regards revocation by a non-testamentary writing executed as


provided in case of wills, it is not essential that the writing should
contain any affirmative disposition of property. Neither is it essential that
a writing which is not in fact a will be erroneously characterized a will in
order to be effective as a revoking instrument. Thus, a will may be
revoked by express words of revocation contained in a deed of trust or in
a letter, signed by the testator and executed in accordance with the
formalities prescribed by law for the making of wills the exact wording if
a revocatory writing is not so important, if the intent to revoke the will is
clear from the language used, and the formalities of execution are
observed.

What are the requisites for a valid revocation by a subsequent


instrument?

1. The subsequent instrument must comply with the formal


requirements of a will (Molo vs. Molo, 90 Phil. 37);

2. The testator must possess testamentary capacity;

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3. The subsequent instrument must either contain an express


revocatory clause or be incompatible with the prior will (Article
831)

What is the requirement to be complied with in order for the


subsequent will to take effect?

Like any other will, such wills must be probated in order to take
effect (Molo vs. Molo).

What is the effect if the subsequent will containing the


revocatory clause should become inoperative?

If the subsequent will containing the revocatory clause should


become inoperative either by reason of the incapacity of the heirs,
devisees or legatees designated therein or by reason of their renunciation
or repudiation, the revocation shall still take effect.

This is so because while the capacity or the desire of the heirs,


devisees or legatees to succeed is absolutely beyond the control of the
testator, the act of revocation is within his absolute control.
Consequently, the revocatory clause must be entirely separated from the
other testamentary dispositions which are affected by the incapacity or
the renunciation of the heirs, devisees or legatees.

What is the effect if the subsequent will containing the


revocatory clause is disallowed by the probate court?

If the subsequent will containing the revocatory clause is


disallowed by the probate court on the ground that it has not been
executed in accordance with the formalities prescribed by law, the
revocatory clause will not produce any effect whatsoever (Samson vs.
Naval, 41 Phil. 838; Vda de Molo vs. Molo, 90 Phil. 37). This is so because
after all, the effect of the disallowance is to nullify the will altogether,
including the revocatory clause contained in such will.

What are the four ways of revocation of a will by physical


destructionor overt acts?

According to No. 3 of Article 830, a will may be revoked by:

(1) Burning;
(2) Tearing;
(3) Canceling; or
(4) Obliterating with the intention of revoking it.

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What are the requisites for revocation of a will by physical


destruction or overt acts?

1) The intention of revoking the will must have been accompanied by


an overt act specified by the law; that is, by an actual physical act
of destruction manifested by burning, or tearing, or cancelling, or
obliterating of the will or a part thereof; and there must be a
completion at least of the subjective stage;
2) The act of destruction must have been performed with animus
revocandi or with the intention of revoking the will;
3) The testator must have the testamentary capacity at the time of
performing the act of destruction;
4) The act of destruction must have been performed by the testator
himself, or by some other person in his presence and by his
express direction.

Thus there must be corpus the physical destruction itself; there


must be evidence of physical destruction; and animus the capacity and
intent to revoke.

Corpus and animus must concur. One without the other will not
produce revocation.

Hence, intent to revoke is not sufficient. This is only one of the


elements. There must be overt act of burning, tearing, obliterating, or
canceling by the testator or anyone under his express direction (Manaloto
vs. CA, GR No. 76464, February 29, 1988).

In the same way, an act of destruction which is done accidentally,


by mistake, or as result of fraud or undue influence does not operate as
a revocation.

The intent to revoke may be inferredfrom the nature of the act, or it


may be shown by extrinsic evidence, but it must in some competent way
be made to appear.

If the testator stated that his will is irrevocable, will such


provision have binding effect?

Even if the testator shall state that his will is irrevocable, such
provision will have no binding effect on him because any waiver or
restriction of this right is void (Article 828).

Can the act of revocation be delegated to an agent?

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The act of revocation is a personal act of the testator. He cannot


delegate to an agent to do the act for him. Another person, however, may
be selected by him as an instrument and directed to do the revocatory
acts in his presence, in which case any so done in his presence and by
his express direction is his personal act and operates to the same extent
as if done by his own hands.

T, the testator, threw his will on a stove but it was not burned
because H, one of the heirs tried to recover it from the stove. Was
the will revoked?

No, because there was no physical destruction. However, the heir


who saved it is not entitled to inherit due to unworthiness (Article 1032).

T executed a will in 1990 with his nephew N who was living


with him as a principal beneficiary. In 1991, with intent to revoke
the will, he sent N to get it from the safe so that he can destroy it;
however, knowing of the intent of his uncle, substituted another
paper inside the envelope and hid the real will. It was this envelope
which he gave to the testator. The latter, without investigating the
contents, subsequently destroyed it by burning. After his death in
1992, N presented the will, which was hidden, for probate. Is there a
revocation in this case?

There is no revocation by burning because although there was


intent to revoke, yet there was no actual physical destruction. Not all the
intention in the world without destruction can revoke a will; and not all
the destruction in the world without the intention can revoke a will. The
two must always go together. However, the heir who saved it is not
entitled to inherit due to unworthiness (Article 1032).

What is the effect of crumpling of a will?

Crumpling of a will is not equivalent to tearing. There is no


revocation of the same. However, in Roxas vs. Roxas, 48 Phil., the
Supreme Court said that crumpling with intent to revoke constitutes
revocation.

What is the effect of tearing of the will up to the signature


only?

Tearing of a will with intent to revoke it is one of the recognized


modes of revocation. The degree of tearing necessary to the revocation of
a will is not fixed by law.

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If the testator tears the will up to the signature, there is revocation


because to goes to the heart of the will. However, if it is only the
signature of the witness, there is no revocation.

How is revocation by cancelling or obliterating effected?

Generally, revocation by cancellation is effected by diagonal or


horizontal lines, or criss-crosses written upon the face of the will or upon
any part thereof, while revocation by obliteration is effected by erasing or
scraping off any word or disposition which the testator intends to revoke.
Hence, in the first, as a rule, the words are still legible, while in the
second, the words are rendered illegible.

What is the difference between revocation by cancelling or


obliterating on one hand and revocation by burning and tearing on
the other hand?

From the very nature of the methods of revocation by cancelling


and obliterating, it is evident that the revocation of the will may either be
total or partial in character. This is what differentiates them from
revocation effected by burning or tearing. In the latter, the revocation is
always total, while in the former, the revocation is total if it is directed
against an essential part of the will and partial if it is directed against a
nonessential part of the will.

Are marks made upon a will by the testator effective as a


revocation by cancellation?

Marks made upon a will by the testator are effective as a


revocation by cancellation, regardless of their depth, faintness, or other
characteristics, if they were placed there for the purpose of cancelling the
will.

The act of the testator in drawing lines across his will constitutes
revocation in toto, if so intended by him. It is necessary, however, that
the testator, with an intention to revoke, must have caused some
physical defacement of the will adopted to give the expression to that
purpose. The general rule is that revocation by cancellation or
obliteration requires the making of marks or lines across the will, or of
some portion thereof which is of such significance that its elimination
would cause a material alteration in the meaning or legal effect of the
will.

If the marks or lines upon a will are in the form of written and
legible words, is there revocation by cancellation?

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The efficacy of marks or lines upon a will as a cancellation is not


lessened by the fact that they are in the form of written and legible
words. Thus, if words indicating an intent to revoke the will are written
upon the instrument in such a manner that many words of the will are
touched, there is effective revocation by cancellation.

If the writing or mark is upon the blank portion of the will, is


there revocation by cancellation?
Most American authorities make a distinction between a writing
across the face of the will constituting defacement of the used portion of
the instrument and a similar writing upon a blank portion, and hold that
while in the first there is a revocation, in the second there is none.
Accordingly, a memorandum written upon the blank margin of the
instrument stating that the will is revoked or that indicated portion is
annulled does not constitute a sufficient revocation (57 A. Jur., Sec.
506, p., 361).

If the writing or mark was executed in accordance with all the


requirements prescribed by law for the execution of wills, is there
revocation by cancellation?

If the memorandum, however, was executed in accordance with all


the requirements prescribed by law for the execution of wills, there would
be revocation, not by cancellation, but by a non-testamentary writing
executed as provided in case of wills.

If there is cancellation of the signature of witnesses to a


holographic, will it make the will void?

It will leave the holographic will valid since no witnesses are after
all required.

What are the disputable presumptions of revocation?

Because it is difficult to prove by competent evidence that a will


has been destroyed or cancelled with intent to revoke, American courts
have been compelled to recognize certain presumptions of revocation,
which by their very nature are disputable in character. Some of these
presumptions have been adopted in this jurisdiction (Gago vs. Mamuyat,
49 Phil. 902). They are:

1. Where the will cannot be found following the death of the testator
and it is shown that it was in the testators possession when last
seen, the presumption is, in the absence of other evidence, that he

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must have destroyed it animo revocandi (57 Am. Jur. Sec. 549, pp.
377-378).

2. Where the will cannot be found following the death of the testator
and it is shown that the testator had ready access to it, the
presumption is, in the absence of other evidence, that he must
have destroyed it animo revocandi (Ibid).

3. Where it is shown that the will was in the custody of the testator
after its execution, and subsequently, it was found among the
testators effects after his death in such a state of mutilation,
cancellation or obliteration as represents a sufficient act of
revocation within the meaning of the applicable statute, it will be
presumed, in the absence of evidence to the contrary, that such
act was performed by the testator with the intention of revoking
the will (57 Am. Jur. Sec. 550, pp. 378-379).

If a will is destroyed without the testators express direction,


can the will still be established and the testators estate distributed
in accordance therewith?

Yes, but the same must be proved in accordance with the rules of
evidence: a) the contents of the will; b) its due execution; and the fact of
its unauthorized destruction, cancellation, or obliteration.

Can there be revocation by oral declaration?

Revocation cannot be done by mere parol. Generally speaking,


revocation of a written will can be accomplished by the testator only by
another writing, by destruction of the instrument, or by some act
manifest thereon, except where, under the doctrine of implied revocation
by a change in circumstances, he may revoke his will indirectly by some
act which results in such a change.

What is the effect of implied revocation?

Article 831. Subsequent wills which do not revoke the


previous ones in an express manner, annul only such dispositions
in the prior wills as are inconsistent with or contrary to those
contained in the later wills.

May two or more instruments, each purporting to be a will, be


admitted to probate if they are not inconsistent with each other?

Yes, two or more instruments, each purporting to be a will, may be


admitted to probate if they are not inconsistent with each other. In the

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absence of any legal provision to the contrary, two separate and distinct
wills may be probated if one does not revoke the other and provided that
the statutory requirements relative to the execution of will have been
complied with (Merza vs. Forras, 93 Phil. 142). 48

If a subsequent will which revokes a prior will and the said


subsequent will becomes inoperative by reason of the incapacity of
or repudiation by the heirs designated therein, does this fact affect
the revocation?

Article 832. A revocation made in a subsequent will shall


take effect, even if the new will should become inoperative by
reason of the incapacity of the heirs, devisees or legatees
designated therein, or by their renunciation.

There is a difference between an invalid will, and a valid but


ineffective will. An invalid revoking will cannot revoke. But a valid though
ineffective will can revoke.

The reason for this article is that the act of revoking a will is
entirely distinct, separate and independent from the testamentary
disposition contained in the subsequent will. Moreover, the incapacity of
or repudiation by, the heirs is beyond the control of the testator, but the
act of revocation is within his absolute control.

T made a will making X his heir. Later, T expressly revoked his


rst will by executing a second will containing a revocatory clause.
T made Y his heir. The second will was validly made, but on Ts
death, Y refused to accept the inheritance. Is the rst will still
revoked?

Yes. Therefore, T will be considered to have died intestate, and X


cannot inherit, except, if he will also be one of the intestate heirs.

What is the doctrine of conditional or dependent relative


revocation?

There is also another presumption connected with revocation of


wills which is recognized in this jurisdiction. The presumption is what is
known as the doctrine of dependent relative revocation.

Under this doctrine, the established rule is that if a testator


revokes a will with a present intention of making a new one immediately
and as a substitute, and the new will is not made, or, if made, fails to

48See Bustamante vs. Arevalo, &3 Phil. 635 where wills could not stand together.

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effect for any reason, it will be presumed that the testator preferred the
old will to intestacy, and the old one will be admitted to probate in the
absence of evidence overcoming the presumption, provided its contents
can be ascertained.

The failure of the new testamentary disposition, upon whose


validity the revocation depends, is equivalent to the non-fulfillment of a
suspensive condition, and hence prevents the revocation of the original
will.

But a mere intent to make at some time a will in place of that


destroyed will will not render the destruction conditional. It must appear
that the revocation is dependent upon the valid execution of a new will.

This doctrine is not limited to the existence of some other


document and has been applied where a will was destroyed as a
consequence of a mistake of law.

The doctrine of dependent relative revocation is a rule of presumed


intention rather than a substantive rule of law. The presumption
recognized by the doctrine is not conclusive; it does not prevail as against
actual evidence of the testators intention. Being merely a rule of
presumed intention, this doctrine cannot be carried so far as to defeat
the real intention of the testator in a case where the facts in evidence do
not support the presumption.

Thus, the question in each case is whether the destruction or


revocation was with the absolute intent to revoke at all events, or only in
case the new will is well and completely executed and operative, or
conditionally on the effectual execution of the new instrument.

The testator made will No. 1. After one week, he wanted to


revoke the same, so he executed will No. 2, expressly revoking will
No. 1. In the belief that he had already accomplished what he
wanted, he then tore into two pieces will No. 1. On his death, it was
discovered that will No. 2 had not been validly executed. Can we
consider will No. 1 as having been revoked, or should it still be given
effect?

In one case, if was held that while it is true that revocation was not
produced by the execution of an invalid will, revocation was made
through an overt act - the act of tearing or destruction - with animo
revocandi. Hence, the court concluded that will No. 1 had indeed been
revoked (Diaz v. De Leon, 43 Phil. 413).

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However, in a subsequent case, itwas ruled that there was no


revocation either by subsequent will (for same was invalid) or an overt act
(since the act of destruction or tearing the rst will was prompted by the
false belief that the second will had been validly executed.) (See Article
833, which provides that a revocation of a will based on a false cause or
illegal cause is null and void.) To put it in another way, the doctrine of
dependent relative revocation-the revocation by destruction or overt act
was good only if this condition is fullled, namely, that the revoking will
was valid. The condition was not fullled; therefore, the revocation by
overt act did not really materialize (De Molo v. Molo, et al., L-2538, Sep.
21, 1951, citing 68 CJ 799, Gardner, pp. 232-233; 1 Alexander, p. 751).

What is the effect of a revocation of a will based on a false


cause or an illegal cause?

Article 833. A revocation of a will based on a false cause or


an illegal cause is null and void.

The fact that the cause for the revocation was a false belief or a
mistake must be found on the face of the will or codicil itself (57 Am.
Jur., Wills, Sec. 519), i.e., if the revocation is through a will or codicil.

X made a will making Y his heir. X then learned that Y was


dead, so he made another will instituting Z as heir. If Y turns out to
be still alive, who inherits?

Y inherits, because the revocation was based on a false cause.

What if the testator states in his second will: I am not sure


whether Y is dead or still alive. However, I hereby revoke the legacy
to him which I made in my first will. Is there a revocation of the
legacy?

Yes, for here, he cannot be said to be proceeding upon an error.

What is the effect of revocation on the recognition of an


illegitimate child?

Article 834. The recognition of an illegitimate child does not


lose its legal effect, even though the will wherein it was made
should be revoked.

Thus, if the will is revoked, the instrument still constitutes an


authentic instrument within the meaning of Article 278 of the Civil Code,
which states that recognition of natural children shall be made in the

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record of birth, or in a will, or in a statement before a court of record, or


in an authentic writing.

What is the reason for Article 834?

While a will is essentially revocable, recognition is irrevocable


(unless there be vitiated consent). Moreover, (1) recognition is not really a
testamentary disposition; and (2) recognition does not wait for the
testators death to become effective (See 1 Manresa 592).

Article 834 applies only if the recognizing will is extrinsically valid,


otherwise there would be no recognition that can be revoked.

SUBSECTION 7. REPUBLICATION
AND REVIVAL OF WILLS

What is republication?

Republication, as applied to wills, is an act of the testator whereby


he reproduces in a subsequent will the dispositions contained in a
previous will which is void as to its form or executes a codicil to his will.

It is the process of re-establishing a will, which has become useless


because it was void, or had been revoked.

How may republication be made?

Article 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.

Article 836. The execution of a codicil referring to a previous


will has the effect of republishing the will as modified by the
codicil.

To avoid inconsistencies between Articles 835 and 836, 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 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. Thus, a codicil may republish and validate a will which was
originally void for want of testamentary capacity or on account of undue
influence upon the testator.

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Manner of republications:

1. Express republication or republication by re-execution of the


original will the testator reproduces in a subsequent will the
dispositions contained in a previous one which is void as to its
form (the original provisions are copied); and

This is the republication referred to in Article 835. Its


purpose is to cure the will of its formal defects.

2. Implied or constructive republication or republication by reference


the testator executes a codicil referring to a previously revoked
will which is valid as to its form, or to a will which is void not as to
its form but for other causes, such as want of testamentary
capacity.

This is the republication referred to in Article 836.

What are the requisites in republication by re-execution?

1. The original will must be void as its form;


2. All the testamentary dispositions in the original will must be
reproduced (not merely referred to) in the subsequent will;
3. The new will must be executed in accordance with the formalities
required by law.

What are the rules in republication?

1. To republish a will void as to its form, all the dispositions must be


reproduced in the new or subsequent will.

2. To republish a will valid as its form but already revoked, the


execution of a codicil which makes reference to the revoked will is
sufficient.

What are the effects of republication by virtue of a codicil?

1. The codicil revives the previous will.

2. The old will is republished as of the date of the codicil makes it


speak, as it were, from the new and later date, insofar as it is not
altered or revoked by the codicil, although the codicil is not
physically annexed to the will, and although the will is not in the
presence of the testator at the time of the execution if the codicil
where it refer to the will in such a way as to identify that

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instrument beyond doubt. If the codicil revokes in terms portions


of the will, it republishes the will as of the date of the codicil with
respect to all parts not revoked.

3. A will republished by a codicil is governed by a statute enacted


subsequent to the execution of the will, but which was operative
when the codicil was executed.
What are the requisites in republication by reference?

1. The will must be void for causes other than as to its form;
2. The codicil must refer to the previous will; and
3. It must be executed as in the case of a will.

In 2002, T gave all his automobiles to X, and at that time, T


had 5 automobiles, but in 2004, he republished the will, and by that
time he already had eight automobiles, how many should X get?

X gets all the 8 automobiles.

Note that under Article 793, had the original will been valid, and
no republication been made, X would get only 5 automobiles, even if by
the time of Ts death, T already had 8 automobiles, unless of course,
there was an express contrary provision in the will.

Can a will, invalid because of fraud or force or undue inuence


or because the testator was under 18 or was insane, be republished
by mere reference in a codicil?

It is submitted that the answer is yes, because this is not a case


when the will is void as to its form. (Form - in this Article, it is believed,
refers to such things as those covered by Article 805, et seq., like defect
in the number of witnesses, lack of or fatal defect in the attestation, lack
of acknowledgment, etc.). But not to vitiated consent or to lack of
testamentary capacity, although of course these are included in the
phrase extrinsic validity, as distinguished from intrinsic validity.

What is revival of wills?

Revival is the restoration or re-establishment of a revoked will or


revoked provisions thereof, to effectiveness, by virtue of legal provisions
or by operation of law.

How may a previously revoked will be revived?

Article 837. If after making a will, the testator makes a


second will expressly revoking the first, the revocation of the

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second will does not revive the first will, which can be revived only
by another will or codicil.

It seems that under our law, the only way by which a previously
revoked will may be revived is through another will or codicil. Thus, the
testator will have to make another will or codicil either by reproducing
the contents of the revoked will or incorporating thereto such revoked
will by reference in accordance with the provisions of Article 837.

What is the difference between republication and revival?

Republication of wills is an act of the testator while revival is one


that takes place by operation of law.

What are examples of revival by operation of law?

1. By implication of Article 837, if the second will merely impliedly


revoked the first will, and the second will was itself revoked, the
first will is automatically revived.

2. If a compulsory heir in the direct line is omitted, the institution of


heir is annulled; but should the omitted heir die before the
testator, the institution is revived, without prejudice to the right of
representation (Article 854).

T executed two wills. Under the first will, A is the only


beneficiary, while under the second will, B is the only beneficiary.
Subsequently, he executed a codicil wherein he expressly revoked
the second will. May the first will now be admitted to probate as his
last will and testament?

Yes. Express revocation is superior to implied revocation. When T


expressly revoked his second will by a codicil, the effect is that the will
ceases to exist and is as inoperative as if it has never been written.
Consequently, there is now only one will of T which remains the first
will which was executed. In reality, the first will was not considered
revived since it has never been validly revoked in the first place.

T made 3 wills. Will No. 2 expressly revoked Will No. 1. Will No.
3 revoked Will No. 2. Is Will No. 1 revived?

No, by express provision of Article 837. The rule is based on the


principle that the revocatory clause of the second will took effect
immediately or at the instant the revoking will was made. (This is the
principle of instanter)

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T made 3 wills. Will No, 2 is completely inconsistent with, and


therefore, impliedly repeals Will No. 1. Later, will No. 3 revokes Will
No. 2. Is the Will No. 1 revived?

Yes. This is a clear inference from Article 837. Since the Article
uses the word expressly, it follows that in case of an implied
revocation by the second will, an automatic revival of the first occurs.
Apparently, the reason is the fact that an implied revocation is
ambulatory, the consistency being truly and actually apparent only
mortis causa, when the properties are distributed.

T made Will No. 1, then Will No. 2 expressly revoking the first.
Then he destroyed Will No. 2, and orally expressed his desire that
his first will be followed. Should this be allowed?

No, the oral expression of the desire to revive cannot be given


effect. He should have made a new will or codicil.

Subsection 8. ALLOWANCE AND DISALLOWANCE


OF WILLS (PROBATE)

What is probate?

It 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.

Article 838. No will shall pass either real or personal


property unless it is proved and allowed in accordance with the
Rules of Court. 49

The testator himself may, during his lifetime, petition the


court having jurisdiction for the allowance of his will. In such
case, the pertinent provisions of the Rules of Court for the
allowance of wills after the testator's 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.

49Rule75, SECTION 1. Allowance necessary. Conclusive as to execution.No will


shall pass either real or personal estate unless it is proved and allowed in the proper
court. Subject to the right of appeal, such allowance of the will shall be conclusive as to
its due execution.

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Subject to the right of appeal, the allowance of the will, either


during the lifetime of the testator or after his death, shall be conclusive
as to its due execution.

What is the nature of a probate proceeding?

The proceeding is not contentious litigations, and although the


persons in interest are given an opportunity to appear and reasonable
precautions are taken for publicity, they are not impleaded or required to
answer (Rosario Guevara vs. Ernesto Guevara, 74 Phil. 479).

What are the kinds of probate?

1. Probate during the lifetime of the testator (ante-motem) (Article


838, paragraph 2); and
2. Probate after the testators death (post mortem) (Section 1, Rule
76 of the Rules of Court).

If a will has been probated during the lifetime of the testator,


can he still alter or revoke his will before his death?

After a will has been probated during the lifetime of the testator, he
can still alter or revoke his will before his death. Should he make a new
will, it would also be allowance on his petition, and if he should die
before he had the chance to present such petition, the ordinary probate
proceedings after the testators death would be in order.

Why is there a need for probate?

1. It is essential because under the law, no will shall pass either


personal or real property unless it is proved and allowed in
accordance with the Rules of Court (Article 838 and Rule 75,
Section 1).
2. Probate proceeding which is in rem cannot be dispensed with and
substituted by any other proceeding, judicial or extra-judicial; and
3. Suppression of a will from probate is contrary to law and public
policy.

What is the purpose of probate of a will?

To establish conclusively against everyone, once and for all, the


facts that the will was executed with the formalities required by law and
that the testator was in a condition to make a will, is the purpose of the
proceedings for the probate of a will.

When does the court acquire jurisdiction to probate a will?

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When it is shown by evidence before it:

1. That a person has executed a will or has died leaving a will;


2. In the case of a resident of this country, that he resides (refers to
the actual residence or physical place or abode of the deceased as
distinguished from his legal residence or domicile) or died in the
province where the court exercised territorial jurisdiction (for
purposes of settlement of the estate of a deceased person, his
residence or location of his estate is not an element of jurisdiction
over the subject matter but merely of venue [Fule vs. Court of
Appeals, 74 SCRA 361]);
3. In the case of non-resident, that he has an estate in the province
where the court is situated (Cayetano vs. Leonides, 129 SCRA 522);
and
4. That the testament or last will has been delivered 50to the court
and is in the possession thereof.

Does the probate court have the power to pass upon the
validity of any provisions made in the will?

50Rule 75, Sec. 2. Custodian of will to deliver.The person who has custody of a
will shall, within twenty (20) days after he knows of the death of the testator, deliver the
will to the court having jurisdiction, or to the executor named In the will.
Rule 75, Sec. 3. Executor to present will and accept or refuse trust.A person
named as executor in a will shall, within twenty (20) days after he knows of the death of
the testator, or within twenty (20) days after he knows that be is named executor if he
obtained such knowledge after the death of the testator, present such will to the court
having jurisdiction, unless the will has reached the court in any other manner, and
shall, within such period, signify to the court in writing his acceptance of the trust or
his refusal to accept it.
Sec. 4. Custodian and executor subject to fine for neglect.A person who neglects
any of the duties required in the two last preceding sections without excuse satisfactory
to the court shall be fined not exceeding two thousand pesos.
Sec. 5. Person retaining will may be committed.A person having custody of a
will after the death of the testator who neglects without reasonable cause to deliver the
same, when ordered so to do, to the court having jurisdiction, may be committed to
prison and there kept until he delivers the will.
Rule 76, Sec. 3. Court to appoint time for proving will. Notice thereof to be
published.When a will is delivered to, or a petition for the allowance of a will is filed
in, the court having jurisdiction, such court shall fix a time and place for proving the
will when all concerned may appear to contest the allowance thereof, and shall cause
notice of such time and place to be published three (3) weeks successively, previous to
the time appointed, in a newspaper of general circulation in the province.
But no newspaper publication shall be made where the petition for probate has
been filed by the testator himself.

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The probate court merely determines if the will was executed with
the formalities required by law and that the testator was in a condition to
make a will. The judgment in such proceedings determines and can
determine nothing more. In them the court has no power to pass upon
the validity of any provisions made in the will. It cannot decide, for
example, that a certain legacy is void and another one valid. Such
question must be decided in some other proceeding (Castaneda v.
Alemany, 3 Phil. 426). This is so because although the allowance of a will
is conclusive as to its due execution, it is not so as to intrinsic validity of
the provisions made therein, which is covered by substantive law relative
to descent and distribution. The probate of a will does not affect the
legitimate rights of the heirs at law or of the widow in the estate.

Who may petition for the probate of a will?

Any executor, devisee, or legatee named in a will, or any other person


interested in the estate, may, at any time after the death of the testator,
petition the court having jurisdiction to have the will allowed, whether
the same be in his possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition the court for
the allowance of his will (Rule 76, Section 1).

What must a petition for the allowance or probate of a will show?

A petition for the allowance of a will must show, so far as known to


the petitioner: 1. the fact of death of the testator, indicating the time and place of such death.
2. The fact that the deceased left a will, attaching a copy of said will.
3. The fact that the will was executed according to the law.
(a) The jurisdictional facts; 4. Whether the person named as executor consents to as such, or renounces his
right to become an executor.
(b) The names, ages, and residences of the heirs, legatees, and
devisees of the testator or decedent;
(c) The probable value and character of the property of the
estate;
(d) The name of the person for whom letters are prayed;
(e) If the will has not been delivered to the court, the name of
the person having custody of it.
But no defect in the petition shall render void the allowance of the
will, or the issuance of letters testamentary or of administration with the
will annexed (Rule 76, Section 1).

What must be shown during the hearing of the probate of the


will?

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1. The fact of death of the testator, in case of probate after death;


2. The publication of notice of hearing; and
3. The execution of the will with the formalities required by law.

What are the issues to be resolved in probate proceedings?

1. Whether the instrument submitted is, indeed, the decedents last


will and testament; in other words, the question is one of identity;
2. Whether the said will was executed in accordance with the
formalities required by law; in other words, the question is one of
due execution;
3. Whether the decedent had the necessary testamentary capacity at
the time the will was executed; in other words, the question is one
of capacity;
4. Whether the execution of the will and its signing were the
voluntary acts of the decedent (Ajero vs. CA, supra).

May title to property be litigated in the probate court?

Title to property cannot be litigated in the probate court. If a third


person asserts a right to the property contrary to the decedents, the
probate court has not authority to resolve the issue but a separate action
must be instituted (Valera vs. Inserto, 149 SCRA 533).

The probate court, however may resolve whether property should


be included in the inventory, but this determination is merely provisional
in character (Id). It cannot be subject to execution, and does not
constitute res judicata, because the question of title or ownership may
still be brought before the regular courts.

Does the probate court have the power to look into the
intrinsic validity of the will?

The probate court does not have the power to pass upon the
provisions made in the will (Maninang vs. Court of Appeals, 114 SCRA
478). The probate of the will does not look into its intrinsic validity.

Does the probate court have the power to determine the status
and rights of persons to inherit?

The status and rights of persons to inherit are not within the scope
of probate proceedings. But when the issue is raised before it in relation
to the probate of the will, it may validly resolve the issue of heirship with
finality, in the absence of an appeal therefrom (Ortega vs. CA, 153 SCRA
96).

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When may the probate court determine matters other than the
due execution of the will?

1. In exceptional cases, as where the defect is apparent on its face,


the probate court may determine the intrinsic validity of the will even
before the formal validity of the will is established, as the probate of a
will may become a useless ceremony if the will is intrinsically invalid
(Balanay, Jr. vs. Martinez, L-39247, June 27, 1975), as where the devise
was intrinsically invalid since the will itself stated that the devisee was
the paramour of the testator.

2. Where 2 successive inconsistent wills were presented for probate


and the issue of filiations was squarely raised by the pleadings and had
to be decided in order to determine whether the testator intended really
to revoke the first will. When the issue is revocation, it is the function of
the court to examine the words of the will (Rarreto v. Reyes, 98 Phil. 996).

3. It can inquire as to whether the disinheritance by the testator of


an heir is legal, and receive evidence during the hearing in support of the
validity of the provision of disinheritance. As a matter of fact even the
question of the status of a natural child is an issue which is completely
not germane to the main question of probate, could be decided in a
probate proceeding when it is raised in conjunction therewith (Severino
vs. Severino, 44 Phil. 343, Hilado v. Ponce de Leon, 50 O.G. 222).

4. The general rule is that questions of title to property cannot be


passed upon in testate or intestate proceedings. The probate court can
decide only provisionally questions of title to property for the purpose of
inclusion into, or exclusion from the inventory, without prejudice to a
final determination of the question in a separate action. It is only when
the parties interested are all heirs and they agree to submit to the
probate court the question as to title of property that the probate court
may definitely pass judgment thereon (Alvarez vs. Espiritu, G.R. No. L-
18833, Aug. 14, 1965).

5. The successional rights of an oppositor to the probate of a will


may be inquired in a probate proceeding. Said the Supreme Court: It is
urged that as probate is only concerned with the due execution of a
testament, any ruling on the successional rights of the oppositors is
premature. Inquiry into the hereditary rights of the oppositors is not
premature, if the purpose is to determine whether their opposition
should be excluded in order to simplify and accelerate the proceedings. If
the oppositors cannot gain any hereditary interest in the estate, whether
the will is probated or not, their intervention would merely result in
unnecessary complication (Cach v. Udan, No. L-19996, April 30, 1950).

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Does the probate court have jurisdiction to decide questions


on ownership?

Generally no, except:

1. When the parties voluntarily submit this matter to the court;

2. When all the claimants have legal interests in the property, and
with their consent, they submit the question of ownership to the
probate court and the interest of third persons are not prejudiced
(Baybayan vs. Aquino, 149 SCRA 186; Sanches vs. CA, GR 108947,
September 29, 1997).

3. When provisionally, ownership is passed upon to determine


whether or not the property involved is part of the estate. [The
court may only provisionally pass upon titles of properties to be
included in the inventory of estate properties, subject to final
decision in a separate action to resolve the question of ownership.]

In probate proceedings, in what instances, if any, may proof of


filiation be allowed and for what purpose?

1. If it is essential to establish which of the two wills has been


revoked;

2. To give prima facie proof whether or not an oppositor or intervenor


who claims to be related to the testator, can be allowed to
intervene in the probate proceedings for the purpose of protecting
his rights.

Note however, that the final decision on the matter of relationships


can be threshed out either in another case, or even in the later stages of
the settlement proceedings, the stage when the declaration of heirship is
made, and only after the probate order has been made.

How may a lost or destroyed will be probated?

No will shall be proved as a lost or destroyed will unless the


execution and validity of the same be established and the will is proved
to have been in existence at the time of the death of the testator, or is
shown to have been fraudulently or accidentally destroyed in the lifetime
of the testator without his knowledge, nor unless its provisions are
clearly and distinctly proved by at least two (2) credible witnesses. When
a lost will is proved, the provisions thereof must be distinctly stated and
certified by the judge, under the seal of the court, and the certificate

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must be filed and recorded as other wills are filed and recorded (Rule 76,
Section 6).

Do the above rules apply to a lost or destroyed holographic


will?

The above rules apply only to a lost or destroyed notarial will and
not to a holographic will. A lost or destroyed holographic will cannot be
proved by the bare testimony of witnesses who have seen and/ or read
such will as the probate thereof requires identification of the handwriting
and signature of the testator (Section 5, 11 and 12, Rule 76),
presupposing the availability of the holographic will in court.

The Supreme Court however, intimated that perhaps it may be


proved by photostatic, photographic or carbon copies.

How many witnesses are necessary to grant the allowance of a


will?

At the hearing compliance with the provisions of the last two


preceding sections must be shown before the introduction of testimony in
support of the will. All such testimony shall be taken under oath and
reduced to writing. If no person appears to contest the allowance of the
will, the court may grant allowance thereof on the testimony of one of the
subscribing witnesses only, if such witness testify that the will was
executed as is required by law.
In the case 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. In the absence of any such competent witness, and if the
court deem it necessary, expert testimony may be resorted to (Rule 76,
Section 5).

If the will is contested, all the subscribing witnesses, and the


notary in the case of wills executed under the Civil Code of the
Philippines, if present in the Philippines, and not insane, must be
produced and examined, and the death, absence, or insanity of any of
them must be satisfactorily shown to the court. If all or some of such
witnesses are present in the Philippines but outside the province where
the will has been filed, their deposition must be taken. If any or all of
them testify against the due execution of the will, or do not remember
having attested to it, or are otherwise of doubtful credibility, the will may,
nevertheless, be allowed if the court is satisfied from the testimony of

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other witnesses and from all the evidence presented that the will was
executed and attested in the manner required by law (Rule 76, Section
11).

If it appears at the time fixed for the hearing that the subscribing
witnesses are dead or insane, or that none of them resides in the
Philippines, the court may admit the testimony of other witnesses to
prove the sanity of the testator, and the due execution of the will; and as
evidence of the execution of the will, it may admit proof of the
handwriting of the testator and of the subscribing witnesses, or of any of
them (Rule 76, Section 8).

Where the testator himself petitions for the probate of his


holographic will and no contest is filed, the fact that he affirms that the
holographic will and the signature are in his own handwriting, shall be
sufficient evidence of the genuineness and due execution thereof. If the
holographic will is contested, the burden of disproving the genuineness
and due execution thereof shall be on the contestant The testator
may, in his turn, present such additional proof as may be necessary to
rebut the evidence for the contestant (Rule 76, Section 12).

What is the effect of the probate of a will?

The probate of a will, in case there should be administration


proceedings, is only part of these proceedings. After the hearing set by
the court for the probate, an order is issued by the court, either allowing
or disallowing the will. This order finally disposes of the question of the
due execution of the will and the capacity of the testator. If no appeal is
taken in due time to such an order, it becomes final, and the question
determined by it can no longer be raised anew, either in the same
proceedings or in a different action. The matter of due execution of the
will and capacity of the testator acquire the character of res judicata an
cannot again be brought into question, all judicial question in connection
therewith being for once and forever closed.

With respect to the due execution of the will, and the capacity of
the testator, the order allowing the will, after it has become final, is
conclusive as against the whole world. The proceeding for the probate of
the will is one in rem. The decree admitting the will to probate cannot be
impugned on any of the grounds authorized by law, except that of fraud,

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in any separate or independent action or proceeding (Manahan vs.


Manahan, 58 Phil. 448).
The Court may pass upon the will's intrinsic validity even before its formal validity had been established. The probate of a will might become an idle
ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that intrinsic validity of the will be passed upon, even before
it is probated; the Court should meet the issue.
What is the effect of the allowance of a will?

Subject to the right of appeal, the allowance of the will, either


during the lifetime of the testator or after his death, shall be conclusive
as to its due execution (Article 838, last paragraph). 51
The status and rights of persons to inherit are not within the scope of probate proceedings. But when the issue is raised before it in relation to the probate of
the will, it may validly resolve the issue of heirship with finality in the absence of an appeal therefrom.
What is the prescriptive period for instituting probate
proceeding?

Prescription is not applicable. The Statute of Limitations fixes time


limits for the filing of civil actions but not in special proceeding of which
probate is admittedly one. This is because probate proceedings are not
exclusively established in the interest of the surviving heirs but primarily
for the protection of the testators expressed wishes that are entitled to
respect as an effect of ownership and of the right of disposition. If the
probate of validly executed wills is required of public policy, the State
could not have intended the statute to defeat public policy.

Is estoppel applicable to probate proceedings?

No, it does not apply to probate proceedings for they are vested
with public interest, and if estoppel would be a applied, the
ascertainment of the truth may be blocked. This should be avoided for
the primary purpose of a probate proceeding is not the protection of the
interest of living persons.

May the probate of a will be dispenses with if the testator


provides that his Last Will and Testament shall not be ventilated in
court?

The provision made by the testator that his Last Will and
Testament shall not be ventilated in court, cannot deprive the courts of
their authority to determine if his will referred to should be allowed or
not. It is not the parties interested in one way or another in a case that
51 Rule 76, Sec. 13. Certificate of allowance attached to proved will. To be

recorded in the Office of Register of Deeds.If the court is satisfied, upon proof taken
and filed, that the will was duly executed, and that the testator at the time of its
execution was of sound and disposing mind, and not acting under duress, menace, and
undue influence, or fraud, a certificate of its allowance, signed by the judge, and
attested by the seal of the court shall be attached to the will and the will and certificate
filed and recorded by the clerk. Attested copies of the will devising real estate and of
certificate of allowance thereof, shall be recorded in the register of deeds of the province
in which the lands lie.

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can confer or take away from the courts the jurisdiction and authority to
resolve and decide what the law itself desires to be resolved and decided.
However, an instrument which neither disposes of property, as it only
appoints an executor, not being testamentary in character, is not entitled
to probate, although executed with all the formalities required by law.

If a codicil contains nothing but the revocation of a former


will, should it still be probated?

A codicil should be probated, even though it contains nothing but


the revocation of a former will.

What are the requirements before the distribution of the


properties given in the will?

1. There must be a decree of partition allocating property to each


heir;
2. Then payment of the estate tax; and
3. Finally, the distributive shares may be delivered.

How is a probate proceeding terminated?

1. Upon approval of the project of partition;


2. The granting of the petition to close the proceedings; and
3. The consequent issuance of the orders of distribution directing the
delivery of the properties to the heirs in accordance with the
adjudication made in the will.

What evidences are necessary for the allowance of wills which


have been probated outside of the Philippines?

1. The due execution of the will in accordance with the foreign laws;
2. That the testator has his domicile in the foreign country, and not
in the Philippines;
3. That the will has been admitted to probate in such country;
4. The fact that he foreign tribunal is a probate court; and
5. The laws of a foreign country on procedure and allowance of
wills.52

52RULE 77: ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND


ADMINISTRATION OF ESTATE THEREUNDER
SECTION 1. Will proved outside Philippines may be allowed here.Wills proved
and allowed in a foreign country, according to the laws of such country, may be
allowed, filed, and recorded by the proper Regional Trial Court in the Philippines.
SEC 2. Notice of hearing for allowance.When a copy of such will and of the
order or decree of the allowance thereof, both duly authenticated, are filed with a

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When may the allowance of a will be set aside?


When a judgment or order is entered, or any other proceeding is taken, against a party in the trial court through FAME . MUST BE FILED
WITHIN 60 days after the petitioner learns of the judgment and not more than 6 months after the judgement or order was entered.
Since a proceeding for the probate of a will is essentially one in
rem, a judgment allowing a will shall be conclusively as to its due
execution. Consequently, no question or the validity or invalidity of the
will could be thereafter raised, except:

1. By means of an appeal; 53or


2. By means of a petition for relief from judgment by reason of fraud,
accident, mistake, or excusable negligence; 54or
3. By means of a petition to set aside the judgment by reason of lack
of jurisdiction or lack of procedural due process; or
4. By means of an action to annul the judgment by reason of extrinsic
or collateral fraud.

Is the probate of a will by final judgment prior to that of a


codicil thereof a bar to the probate of the codicil?

In Macam vs. Gatmaitan, 60 Phil. 358, the Supreme Court ruled


that:

The fact that a will has been allowed without opposition and the
order allowing the same has become final and executory is not a bar to
the presentation and probate of a codicil, provided it complies with all
the necessary formalities for executing a will.

petition for allowance in the Philippines, by the executor or other person interested in
the court having jurisdiction, such court shall fix a time and place for the hearing, and
cause notice thereof to be given as in case of an original will presented for allowance.
SEC. 3. When will allowed, and effect thereof.If it appears at the hearing that
the will should be allowed in the Philippines, the court shall so allow it, and a certificate
of its allowance, signed by the judge, and attested by the seal of the court, to which
shall be attached a copy of the will, shall be filed and recorded by the clerk, and the will
shall have the same effect as if originally proved and allowed in such court.
SEC. 4. Estate, how administered.When a will is thus allowed, the court shall
grant letters testamentary, or letters of administration with the will annexed, and such
letters testamentary or of administration, shall extend to all the estate of the testator in
the Philippines. Such estate, after the payment of just debts and expenses of
administration, shall be disposed of according to such will, so far as such will may
operate upon it; and the residue, if any, shall be disposed of as is provided by law in
cases of estates in the Philippines belonging to persons who are inhabitants of another
state or country.

53This exception is recognized by the 4th paragraph of Article 838 as well as by

the provision of Section 1, Rule 75, Rules of Court.

54This
exception is recognized by the general provisions of Sections 2 and 3,
Rule 38 of the Rules of Court.

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It is not necessary that the will and the codicil be probated


together, as the codicil may be concealed by an interested party and it
may not be discovered until after the will has already been allowed; and
they may be presented and probated one after the other, since the
purpose of the probate proceedings is merely to determine whether or not
the will and the codicil meet all the statutory requirements for their
extrinsic validity, leaving the validity of their provisions for further
consideration.

With respect to the oppositor, the fact that he failed to file


opposition to the probate of the will does not prevent him from filing
opposition to the probate of the codicil thereof, inasmuch as the will may
satisfy all the external requisites necessary for its validity, but the codicil
may, at the time of its execution, not be in conformity therewith. If the
testator had testamentary capacity at the time of the execution of the
will, and the will was executed in accordance with all the statutory
requirements, opposition to its probate would not lie. On the contrary, if
at the time of the execution of the codicil the testator lacked some of the
subjective requisites legally capacitating him to execute the same, or all
the statutory requirements were not complied with in the execution
thereof, opposition to its probate would lie.

What are the grounds for the disallowance of a will?

Article 839. The will shall be disallowed in any of the following


cases:

(1) If the formalities required by law have not been complied with;

(2) If the testator was insane, or otherwise mentally incapable of


making a will, at the time of its execution;

(3) If it was executed through force or under duress, or the


influence of fear, or threats;

(4) If it was procured by undue and improper pressure and


influence, on the part of the beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing his
signature thereto. 55

55The same grounds are also enumerated in Section 9, Rule 76, Rules of Court.

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The above grounds are exclusive (Ajero vs. CA, GR No. 106720,
September 15, 1994). A will should not be disallowed on dubious grounds
(Maninang vs. CA, 114 SCRA 478).

What constitutes force and duress, or the influence of fear, or


threats, or fraud as grounds to disallow a will?

Since there is no definition of these terms under the law on wills,


the definitions of violence and intimidation found under the law on
contracts can, therefore be applied.

According to Article 1335:

There is violence when in order to wrest consent, serious or


irresistible force is employed.

There is intimidation when one of the contracting parties is


compelled by a reasonable and well-grounded fear of an imminent and
grave evil upon his person or property, or upon the person or property of
his spouse, descendants or ascendants, to give his consent.

To determine the degree of intimidation, the age, sex and


condition of the person shall be borne in mind.

A threat to enforce one's claim through competent authority, if the


claim is just or legal, does not vitiate consent.

According to Article 1337:

There is undue influence when a person takes improper


advantage of his power over the will of another, depriving the latter of a

SEC. 9. Grounds for disallowing will.The will shall be disallowed in any of the
following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a
will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on the
part of the beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he did
not intend that the instrument should be his will at the time of fixing his signature
thereto.

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reasonable freedom of choice. The following circumstances shall be


considered: the confidential, family, spiritual and other relations between
the parties, or the fact that the person alleged to have been unduly
influenced was suffering from mental weakness, or was ignorant or in
financial distress.

According to Article 1338:

There is fraud when, through insidious words or machinations of


one of the contracting parties, the other is induced to enter into a
contract which, without them, he would not have agreed to.

Must the violence or intimidation be employed by a


beneficiary?

Whether the violence or intimidation is employed by a beneficiary


or by a stranger is immaterial. The will must be disallowed.

According to Article 1336:

Violence or intimidation shall annul the obligation, although it


may have been employed by a third person who did not take part in the
contract.

What are the basic principles of undue influence as a ground


for the disallowance of wills?

In Pacual vs. Dela Cruz, G.R. No. L-24819, May 30, 1969, the
Supreme Court laid down these principles:

The basic principles on undue pressure and influence as laid


down by the jurisprudence of this Court: that to be sufficient to avoid a
will, the influence exerted must be of a kind that so overpowers and
subjugates the mind of the testator as to destroy his free agency and
make him express the will of another rather than his own (Coso vs.
Fernandez Deza, 42 Phil. 596; Icasiano vs. Icasiano, L-18979, 30 June
1964; Teotico vs. Del Val, L-18753, 26 March 196); that the contention
that a will was obtained by undue influence or improper pressure cannot
be sustained on mere conjecture or suspicion, as it is enough that there
was opportunity to exercise undue influence, or a possibility that it may
have been exercised (Ozaeta vs. Cuartero, L-5597, 31 May 1956); that the
exercise of improper pressure and undue influence must be supported by
substantial evidence that it was actually exercised (Ozatea vs. Cuartero,
ante; Teotico vs. Del Val, L-18753, 26 March 1965); that the burden is on
the person challenging the will to show that such influence was exerted

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at the time of its execution (Teotico vs. Del Val, ante); that mere general of
reasonable influence is not sufficient to invalidate a will (Coso vs.
Fernandez Deza, ante); nor is moderate and reasonable solicitation and
entreaty addressed to the testator (Barreto vs. Reyes, L-5831-31, 31
January 1956), or omission of relatives, not forced heirs, evidence of
undue influence (Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronel, 45
Phil. 416).

What constitutes mistake as a ground for disallowance?

Mistake which will invalidate a will is a mistake as to the identity


or character of the instrument which he signed, as well as a mistake as
to the contents of the will itself. These mistakes are generally known as
mistakes in the execution. Mistakes in the appreciation of the effect of
the language of a will or in the expression do not invalidate a will.

What is the difference between the 5 th and 6th ground?

Under the 5th ground, the testator is aware that he is signing a will
but was tricked into signing said will, that is, that although the testator
knows it is a will, the contents thereof are not according to his wishes
and he would not have signed the will were it not for the fraud employed
on him.

The 6th ground, on the other hand, contemplates the situation


where the testator did not intend to sign a will but some other document
as happens when, for example, the testator believes he is signing a
promissory note or a contract but in lieu thereof, a will is substituted.
There is no intent, therefore, to make or sign a will but some other
document under the 6th ground.

If his will is disallowed under any of the grounds mentioned in


Article 839, can the testator, before the promulgation of the decree
of disallowance, ratify the will?

The answer should be qualified. With respect to a will which is void


because of non-compliance with the formalities prescribed by law,
ratification is not possible. However, with respect to influence, fraud or
mistake, since we cannot exactly say that the will is void or inexistent,
ratification is possible.

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SECTION 2. - INSTITUTION OF HEIR

What is institution of heirs?

Article 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.

This simply means the designation of the testator in his will of the
person or persons who are going to succeed him in his property and
transmissible rights and obligations.

Give the rules on institution of heirs.

1. Being a voluntary heir of the testator, it cannot affect the


legitime, otherwise, the compulsory heirs would be unduly
prejudiced;
2. It is applicable only in testate succession;
3. It affects only the free portion;
4. A conceived child may be instituted if the conditions in
Articles 40 and 41 are present (Art. 1025).

May a will be valid even if it does not institute heirs?

Article 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.

If the designated heir repudiates the inheritance or is


incapacitated to succeed, how shall the inheritance pass?

If the designated heir repudiates the inheritance or is


incapacitated, the inheritance will devolve by accretion on the qualified
heirs, if any (Article 1016).

In legal succession, the share of the person who repudiates the


inheritance shall always accrue to his co-heirs (Article 1018).

If a will does not institute an heir, is there a need to probate


the will?

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2012 Notes Compilations onWills and Succession 133

No, except:

1. When the will recognizes an illegitimate child;


2. When it disinherits a compulsory heir (A valid disinheritance is in
effect a disposition of the testator of those who would succeed in
the absence of the disinherited heir);
3. When it instituted an executor.

What are the requisites in general for a valid and effective


institution of heirs?

1. That the testator has the capacity to make the institution;


2. That in making the institution of heir the testator is not subjected
to any vice that vitiates consent;
3. That the institution is made in a will;
4. That the institution is made personally by the testator without
leaving it to the will or discretion of a third person;
5. That the person instituted is identified or identifiable in the will
with sufficient clarity to leave no doubt as to the testators
intention, since the institution of an unknown heir is void;
6. That there be no preterition of a compulsory heir in the direct line.

When is the testators freedom of disposition absolute in


character? When is it not absolute?

Article 842. One who has no compulsory heirs may dispose by will
of all his estate or any part of it in favor of any person having capacity to
succeed.

One who has compulsory heirs may dispose of his estate provided
he does not contravene the provisions of this Code with regard to the
legitime of said heirs.

Hence, the testator is free to dispose of the free portion of his estate
to anyone who is qualified to succeed. The free portion is the remainder of
the estate after all the legitimes of the compulsory heirs had been
satisfied.

If the testator has complulsory heirs, he cannot dispose of or


encumber the legal portion due to his compulsory heirs by force of
law.Article 904 provides: 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.

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2012 Notes Compilations onWills and Succession 134

Another restriction of the testators power of disposition is the


liability of his estate for his obligations. His estate is liable for all legal
obligations incurred by him. This restriction takes precedence over the
right of compulsory heirs to their legitime.

What is the concept of compulsory or forced heirs?

They are those for whom legitimes are reserved and they succeed
to the inheritance regardless of the wishes of the testator and cannot be
deprived of their legitimes except by valid disinheritance.

Compulsory heirs are not however compelled to accept their


legitimes because they may reject them. They are called compulsory
because they could not be disregarded by the decedent. Their legitimes
are forced, so to speak, against the estate. 56

What is the concept of legitime?

Legitime is that part of the testators property which he cannot


dispose of because the law has reserved it for certain heirs whom he
cannot disregard known as compulsory or forced heirs.

The amount of the legitmes depends on the kinds and number of


compulsory heirs. Various combinations are possible. Consequently, the
amount of the disposable portion is also variable.

May voluntary heirs question the institution of heirs?

No, only compulsory or forced heirs can question the institution.

May an unborn child be instituted as an heir?

It depends. A child already conceived at the time of death of the


decedent is capable of succeeding; provided, it be born later under the
condition prescribed in Article 41 of the Code 57 (Article 1025, second
56Article 887 enumerates the compulsory heirs
1. Legitimate children and descendants, with respect to their legitimate parents
and ascendants;
2. In default of the foregoing, legitimate parents and ascendants, with respect to
their legitimate children and descendants;
3. The widow or widower;
4. Acknowledged natural children, and natural children by legal fiction;
5. Other illegitimate children referred to in Article 287; Compulsory heirs
mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2; neither
do they exclude one another.
57Article 41. For civil purposes, the foetus is considered born if it is alive at the time it is

completely delivered from the mothers womb. However, if the foetus had an intra-

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2012 Notes Compilations onWills and Succession 135

paragraph). Otherwise, the institution is void because the foetus did not
become a person.

What if the testator wants to dispose all his properties


onerously during his lifetime, can he do so even if he has
compulsory heirs?

Yes, because what is prohibited is only gratuitous alienation to the


extent that will prejudice the legitime of compulsory heirs.

What are the characteristics of an instituted heir?

1. He is a testamentary heir as distinguished from a legal or intestate


heir. He is also different from a devisee or legatee.

2. He continues the juridical personality of the testator but only in


relation to the inheritance without being personally liable for the
testators debts.

3. He is a natural person (Art. 40 to 42), even if only a conceived


child, but not a child not yet conceived. However, testamentary
dispositions may be made in favor of a juridical person, except
those not permitted by law to succeed.

4. He acquires rights which are limited to the disposable portion of


the inheritance and cannot impair that portion known as legitime.

5. He is presumed to have been instituted, where there are several


heirs, equally, individually and simultaneously with the others,
unless the contrary intention appears.

How may the testator make designation of the heirs?

Article 843. The testator shall designate the heir by his


name and surname, and when there are two persons having the
same names, he shall indicate some circumstance by which the
instituted heir may be known.

Even though the testator may have omitted the name of the
heir, should he designate him in such manner that there can be no
doubt as to who has been instituted, the institution shall be valid.

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.

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What is the reason for the precept contained in the first


paragraph of Article 843?

The reason for the precept contained in the first paragraph of


Article 843 can easily be inferred from the fact that under Article 845,
dispositions in favor of an unknown person shall be void, unless by some
event or circumstance his identity becomes certain. Therefore, in order to
avoid such nullity, the law recommends that the designation should be
made in the form indicated in the first paragraph of Article 843.

This form, however, is not mandatory. The designation may be


made in any other form, so long as there will be no doubt as to the
identity of the heir or heirs instituted.

What is the effect of the institution if there is an error in


the name, surname or circumstances of the heir? What is the effect
of ambiguity resulting in the non-identification of the heir?

Article 844. An error in the name, surname, or


circumstances of the heir shall not vitiate the institution when it is
possible, in any other manner, to know with certainty the person
instituted.

If among persons having the same names and surnames,


there is a similarity of circumstances in such a way that, even
with the use of other proof, the person instituted cannot be
identified, none of them shall be an heir.

Can extrinsic evidence be admissible to determine the identity


of the heir?

Imperfect description may be corrected by extrinsic evidence but


not the testimony regarding the oral declaration of the testator.

What is the effect of disposition in favor of an unknown person


or in favor of a definite class or group of persons?

Article 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.

What is the proper test in order to determine the validity of


institution of heir? In what cases is such test applicable?

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2012 Notes Compilations onWills and Succession 137

The provisions of Articles 843 and 844 should be applied in


relation to the provision of Article 789. The latter article provides that
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 testator's intention is to
be ascertained from the words of the will, taking into consideration the
circumstances under which it was made, excluding such oral
declarations

From these provisions, it is clear that the proper test in order to


determine the validity of an institution of heir is the possibility of finally
ascertaining the identity of the instituted heir either by intrinsic or
extrinsic evidence.

This test is essentially applicable to the following cases:

1. If the name and surname of the instituted heir has been omitted by
the testator (Article 843);
2. If there has been error with respect to the name, surname, or
circumstance of the instituted heirs (Article 844);
3. If the name, surname, and circumstances of the instituted heir are
the same as those of other persons (Article 844); and
4. If an unknown or uncertain person (persona incierta) has been
instituted (Article 845).

Is the designation valid if the identity is not known at the


time of making of the will?

Yes, provided the said identity can be known in the future by some
circumstance. How?By establishing certain criteria at the proper time,
e.g. First Filipino who wins a gold medal in the Olympics.

With regard to the identity of an heir, what are the


requirements in order that a disposition may be considered valid?

Before the disposition can be considered valid, it is indispensable


(1) that the identity of the beneficiary can be ascertained either by past,
present, or future even or circumstance. This requisite is predicated on
the fact (2) that the beneficiary must be in existence at the time of the
testators death. Otherwise, even if it would be possible to determine his
identity by some even or circumstance, the disposition would still be
effective on the ground of absolute incapacity.

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2012 Notes Compilations onWills and Succession 138

What are the limitations of the rule that an heir may be validly
instituted if by some future event his identity may be known?

1. Where the determination of the heir is delegated to another, the


disposition is void under Article 785; 58 thus, the testator cannot
validly provide I hereby institute as my heir the person whom my
brother Juan may designate.

2. Where the instituted heir when identified does not have the
capacity to succeed at the time of the death of the testator, the
disposition is void under Article 1025; 59 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.

Dispositions in favor of a definite class or group of persons are


valid, although the particular persons comprising the specified class or
group be unknown (2nd sentence, Article 845). This rule which recognizes
the validity of such dispositions is complemented by the provisions of
Articles 786 and 1030.

Article 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
are to be given or applied.

Article 1030. Testamentary provisions in favor of the poor in


general, without designation of particular persons or of any community,
shall be deemed limited to the poor living in the domicile of the testator
at the time of his death, unless it should clearly appear that his intention
was otherwise.

The designation of the persons who are to be considered as poor


and the distribution of the property shall be made by the person
appointed by the testator for the purpose; in default of such person, by
the executor, and should there be no executor, by the justice of the

58Article 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.
59 Article 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.

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2012 Notes Compilations onWills and Succession 139

peace, the mayor, and the municipal treasurer, who shall decide by a
majority of votes all questions that may arise. In all these cases, the
approval of the Court of First Instance shall be necessary.

The preceding paragraph shall apply when the testator has


disposed of his property in favor of the poor of a definite locality.

Can the testator give his entire free portion to a person he


does not personally know?

Yes, the unknown person (persona incierta) referred to in Article


845 refers to one who cannot be identified and not to one whom the
testator does not personally know. The basis of the nullity is the
incapability of determination of the intention of the testator.

What are the classes or groups who can be instituted as heirs?

1. Article 848 Brothers and sisters, some of the full blood,


others half-blood;
2. Article 849 A person and his children;
3. Article 959 - The testators relative (nearest in degree);
4. Article 1030 The poor in general living in the domicile of
the testator or the poor in a definite locality.

How would heirs inherit if they are instituted without


designation of shares? What is the exception?

Article 846. Heirs instituted without designation of shares shall


inherit in equal parts. (Belen vs. BPI, L- 14470, Oct. 31, 1960)

There is, however an exception to the rule. If of the persons


instituted, one is a compulsory heir, the rule would not apply. The
legitime of that heir has to be removed first; otherwise, he would be
unduly prejudiced.

Does the rule in Article 846 apply to all kinds of heirs?

Article 846 applies only in testamentary succession, that is to say,


only among testamentary heirs. It will not apply to an heir who is both a
compulsory and a testamentary heir, for in that case the heir will get his
legitime and his testamentary portion; that is, the compulsory heir shall
first be entitled to what corresponds to him as a legitime, and then the
balance shall be divided by him and the voluntary heir in equal portions.

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2012 Notes Compilations onWills and Succession 140

A instituted B, (his son) and his brothers C and D as heirs to


an estate of P600,000. Distribute the estate.

Art 846 of the civil code which declares that heirs instituted
without designation of shares shall inherit in equal parts. It must be
noted, however, that one of the instituted heirs (B) is a compulsory heir
while the other two (C and D) are voluntary heirs. Article 486 is
applicable only to the disposable free portion and not to the legitime of
the compulsory heirs. Therefore the estate of 600,000 shall be divided as
follows: B shall receive his legitime of of the estate (i.e. 300,000) and
that leaves the disposable portion of of the estate which shall be
divided into equal parts among the three instituted heirs. Thus: B shall
receive P400,000; C P100,000 and D P100,000.

What is the rule as to individual and collective institutions of


heirs?

Article 847. When the testator institutes some heirs


individually and others 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.

The testator provides: I give 1/3 of my estate to A, B and C. C


is a class of people. How do you divide the estate?

It is not to be interpreted as 1/3 to A, B and class C. Rather, the


1/3 of the estate should be divided equally among A, B and the members
of class c. Why? Because the presumption is that the members of C were
individually designated.

If the testator says, I give 1/3 of my estate to A, B and class C as


a unit, then 1/3 will be divided equally among A, B and class C.

If it is not possible to resolve the ambiguity, the testators intent


becomes indeterminable and, therefore, intestacy as to that portion will
result.

A died in 1980. He left a will which contains the following


institution of heirs: I designate as my heirs son of B, my daughter
C, the children of my deceased son D, and my friend X. D, who died
in 1969, is survived by his three legitimate children E, F, and G. The
net residue of As estate is P180,000. How shall the distribution be
made?

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2012 Notes Compilations onWills and Succession 141

The provisions of Articles 846 and 847 are applicable. Under


Article 846, where there are compulsory heirs among the heirs instituted,
the rule that the heirs shall inherit in equal part should be applied only
to the disposable free portion. Correlating it with Article 847, the
distribution of the estate shall be as follows:

First, satisfy the legitime of B, C, E, F and G. B and C shall be


entitled to P30,000 each, in their own right, while E, F and G shall be
entitled to P10,000 each, by right of representation (Articles 888, 902).
The disposable free portion of P90,000 will then be divided equally
among the instituted heirs B, C, E, F, D, and X. Therefore, the shares of
each will be:

B - P30,000, as compulsory heir


P15,000, as voluntary heir

C - P30,000, as compulsory heir


P15,000, as voluntary heir
E - P10,000, by right of representation
P15,000, as voluntary heir

F - P10,000, by right of representation


P15,000, as voluntary heir

G - P10,000, by right of representation


P15,000, as voluntary heir

X - P15,000, as voluntary heir


___________
P180,000

What is the rule in institution of brother and sister?

Article 848. If the testator should institute his brothers and


sisters, and he has some of full blood and others of half-blood, the
inheritance shall be distributed equally unless a different
intention appears.

Note:

a. In intestacy proportion of 2:1 between full and half blood


brothers and sisters (Article 1006), and only if the qualification
in Article 992 does not apply. (Article 992 An illegitimate child
has no right to inherit ab intestato from the legitimate children
and relatives of his father or mother, nor shall such children or
relatives inherit in the same manner from the illegitimate child.)

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Does Article 848 apply even to illegitimate brothers and


sisters in cases where the testator is of legitimate status and vice
versa?

Yes, because Article 848 makes no distinction.

X instituted the following as his heirs: His full brother, his


half-brother, his stepbrother, his brother in law and his illegitimate
brother. How much will each get if the estate is 20, 000?

Each gets 20, 000. While the law mentions only full and the half-
brother, it is evident that the others may be considered in the same
category as strangers, making Article 846 applicable.

What is the rule in institution of a person and his children?

Article 849. When the testator calls to the succession a


person and his children they are all deemed to have been
instituted simultaneously and not successively.

Note that the word descendants include children and


grandchildren. They succeed per capita (per person), and not per stirpes
(by groups).

Summary:

What are the governing principles in institution of heirs?

1. Equality the heirs instituted without designation of shares inherit


in equal parts.
2. Individuality the presumption is that heirs collectively designated
are considered individually instituted unless the contrary appears.
3. Simultaneity The presumption is that several heirs are instituted
simultaneously and not successively unless the contrary appears.

What is the effect of institution based on a false cause?

Article 850. The statement of a false cause for the institution of an


heir shall be considered as not written, unless it appears from the will
that the testator would not have made such institution if he had known
the falsity of such cause.

For mass institution, see Articles 786, 843 (brothers and sisters),
849 (designation of a person and his children), 1029 (prayers and pious
works for the benefit of his soul), and 1030 (poor).

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What is the meaning of false cause?

A false cause refers to the erroneous reason for the institution of an


heir.

Before the institution of heirs may be annulled by reason of


false cause, what are the requisites that 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;
3. It must appear from the face of the will that the testator would not
have made such institution of he had known the falsity of the
cause. (Austria vs. Reyes, 31 SCRA 754)

Consequently, where the testators will does not state in a specific or


unequivocal manner the cause for such institution, the annulment of
such institution cannot be availed of.

Note:

This article does not restrict the operation of Article 1028 60 in


relation to Article 739 61declaring void certain testamentary dispositions,
be reason of public policy. The annulling factor in those two articles is
not falsity but illegality.

A is the tallest in the class. I give him of my estate. If A is


not the tallest, is the institution ineffective?

No, follow the general rule because the real cause was not the
height but the liberality of the testator.

A instituted his brother X as his heir because he saved As


sons life. If X did not in fact save the life of As son. Will the falsity
of this cause vitiate the institution of X?
60Article1028. The prohibitions mentioned in article 739, concerning donations inter
vivos shall apply to testamentary provisions.
61Article739.The following donations shall be void:

(1) Those made between persons who were guilty of adultery or concubinage at the
time of the donation;
(2) Those made between persons found guilty of the same criminal offense, in
consideration thereof;
(3) Those made to a public officer or his wife, descendants and ascendants, by
reason of his office.
In the case referred to in No. 1, the action for declaration of nullity may be brought by
the spouse of the donor or donee; and the guilt of the donor and donee may be proved
by preponderance of evidence in the same action.

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No, the falsity of this cause will be merely incidental and will not
vitiate the institution of X since the fundamental reason for the
institution is his blood relationship to me. But if in the above example, X
should be a total stranger, then the fact that he did not save the life of
As son would annul his institution because there would be no reason for
instituting a total stranger as As heir were it not for the fact that he
saved the life of As son.

What is the effect if the cause is contrary to law?

The same will not be considered as written unless such illegal


cause appears to be the sole reason for the institution of the heir.

X institutes Y because he wants him to kill Z. Is the


institution valid?

No, it is void since the real motive is illegal.

What are the rules in institutions in aliquot parts?

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

Article 852.If it was the intention of the testator that the instituted
heirs should become sole heirs to the whole estate, or the whole free
portion, as the case may be, and each of them has 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.

Article 853. If each of the instituted heirs has been given an


aliquot part of the inheritance, and the parts together exceed the whole
inheritance, or the whole free portion, as the case may be, each part
shall be reduced proportionally.

What is the difference between Articles 851 and 852 on one


hand and Article 853 on the other hand?

Articles 851 and 852 refer to those institutions where the testator
has instituted one or more persons as heirs to inherit in aliquot parts,
but such parts are not sufficient to cover the entire inheritance, or the

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2012 Notes Compilations onWills and Succession 145

entire free portion while Article 853 refers to those institutions where the
testator has instituted several persons as heirs to inherit in aliquot parts,
but such parts taken together exceed the entire inheritance, or the entire
free portion, as the case may be.

In Article 851, the testator institutes only one heir and the
institution is limited to an aliquot part. Legal succession takes place with
respect to the remainder of the estate. There will therefore be a mixed
succession. Thus, if the testator institutes A to of the inheritance and
there are no other heirs instituted, A shall receive of the estate upon
the death of the testator, while the other half shall pass to the legal heirs.
The same rule applies if the testator has instituted several heirs each
being limited to an aliquot part. Thus, if the testator institutes A to 2/5
of the inheritance, B to 1/5, and C to 1/5, there will still be a remainder
of 1/5 which shall pass to the legal heirs.

The rule, however is different if it was the intention of the


testator that the instituted heirs should become the sole heirs of the
entire estate, or the whole free portion, as the case may be. According to
Article 852, each part shall be increased proportionately. It is therefore
evident that the rule stated in Article 852 is an exception to Article 851.
It enunciates the principle that when there is a conflict between the
intention of the testator and his mathematical computation, the former
shall prevail. The difference cannot pass by intestacy because the
intention is clear to give the instituted heirs the entire amount.

In Article 853, if the aliquot parts are in excess of the entire


inheritance, or the free portion, as the case may be, each part shall be
reduced proportionately.

In Articles 852 and 853, what are the requisites in order that
the said articles will apply?

1. There are more than one instituted heir;


2. The testator intended them to get the whole estate or the whole
disposable portion, as the case may be;
3. The testator has designated a definite portion for each heir;
4. The total of portions is less or more than the whole estate or free
portion as the case may be.

The value of the estate of T is P1,200,000. He specifically


provides in his will that a specific car valued at 200,000 goes to A; a
specific parcel of land worth 300,000 to B; and all the other
properties to C. How will the estate be divided?

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2012 Notes Compilations onWills and Succession 146

A gets the car plus 200, 000; B gets the land plus 300, 000 and C
gets 700, 000.

T institutes X, Y and Z as his sole heirs giving each of them an


aliquot part of his estate of 360, 000 as follows: X to 1/3 of the
estate, Y to and Z to 1/6. How shall the estate be distributed?

X- 1/3 (P120, 000)


Y- (P90, 000)
Z- 1/6 (P60, 000)
P270, 000

The balance of P90, 000 will be distributed as follows:

12/27 x 90, 000 = P 40, 000


9/27 x 90, 000 = P30, 000
6/27 x 90, 000 = P20, 000
P90, 000

Suppose in the preceding example, the aliquot parts given to


X, Y and Z are as follows: X to of the estate, Y to 1/3 and Z to .
How will the estate be distributed?

X- (180, 000)
Y- 1/3 (120, 000)
Z- (90, 000)
P390, 000
The excess ofP30, 000 will be distributed as follows:

X 18/39 x 30, 000 = P13, 846


Y 12/39 x 30, 000 = P 9, 231
Z 9/39 x 30, 000 = P 6, 923
P 30, 000

The testator has no compulsory heirs. He indicates in the will


his intention to give his entire estate to his heirs. He gives to A,
1/6 to B and 1/3 to C. The estate is worth 120, 000, therefore, A
gets 30, 000, B gets 20, 000 and C gets 40, 000.00 or a total of 90,
000. Since the estate is 120, 000, what will you do with the
remaining 30, 000?

a. Get the least common denominator: 12.

A= 3/12
B= 2/12
C=4/12

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2012 Notes Compilations onWills and Succession 147

b. Get the ratio of the shares with each other.

A(3) : B(2) : C(4)


3+2+4=9

c. Multiply the remainder (30, 000) by the share of each heir


with respect to the ratio in (b).

For A; 3/9 x 30, 000 = 10, 000.(3 x 30, 000 = 90, 000
/ 9 = 10, 000.)

For B: 2/9 x 30, 000 = 6, 666.67 (2 x 30, 000 = 60,


000 / 9 = 6, 666.67)

For C: 4/9 x 30, 000 = 13.333.33 (4 x 30, 000 = 120,


000 / 9 = 13, 333.33)

d. Add the result to what they originally received and the sum
will complete their inheritance.

For A: 30, 000 + 10, 000 = 40, 000

For b: 20, 000 + 6, 666.67 = 26, 666.67

For C: 40, 000 + 13, 333.33 = 53, 333.33

e. Add your figures in (d) to make sure that it equals to the


value of the entire estate (To make sure that you did not
make a mistake)

40, 000 + 26, 666.67 + 53, 333.33 + 120, 000.

f. If you want to get the inheritance of each right away,


multiply the ratio in (c) with the value of the whole estate.

For A: 3/9 x 120, 000 = 40, 000.

For B: 2/9 x 120, 000 = 26, 666.67

For C: 4/9 x 120, 000 = 53, 333.33

You get the same result but faster.

The testator institutes A to 1/3 of the entire inheritance, B to


and C to , with the intention that all of them shall become the

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2012 Notes Compilations onWills and Succession 148

sole heirs of the whole estate. The net remainder of the estate after
the death of the testator is P120,000. How much is the share of
each instituted heirs?

Solution - Before we can compute the share of each of the instituted


heirs, each aliquot part to which each heir was instituted shall have to be
increased proportionately. According to the institution, A shall receive
1/3 or P120,000 or P40,000; B to of P120,000 or P30,000; and C to
of P120,000 or P30,000, the aggregate amount of which is P100,000,
which is less by P20,000 than the aggregate amount available for
distribution. It is this amount of P20,000 which shall be distributed
proportionately among the three heirs. The method which is used may
be:

Arithmetical: Since the portion in which A, B and C had been


instituted is 4:3:3, therefore, A shall be entitled to an additional 4/10 of
P20,000 or P8,000; B to an additional of 3/10 of P20,000 or P6,000; and
C to an additional of 3/10 of P20,000 or P6,000. Thus, A shall be entitled
to a total amount of P48,000; B to a total amount of P36,000; and C to a
total amount of P36,000.

Algebraic: The formula may be stated as follows: The increased


share of an heir is equal to the aggregate amount available for
distribution multiplied by the amount of the share of the heir given by
the testator divided by the aggregate amount given to all. Thus

Share of A = P120,000 x P40,000


____________________ = P48,000
P100,000

Share of B = P120,000 x P30,000


____________________ = P36,000
P100,000

Share of C = P120,000 x P30,000


____________________ = P36,000
P100,000

A institutes as his sole heirs X, Y and Z, X to and Y to and


Z to 1/3 of the estate. The total estate is 12, 000. How much is the
total share of each heir?

According to the disposition, X will receive 3, 000, Y 3, 000 and Z


4, 000 thereby leaving a balance of 2, 000 undisposed of. This balance
will be given to the heirs proportionally. X, therefore, will get furthermore

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2012 Notes Compilations onWills and Succession 149

3/10 x 2, 000 or 600, Y will get the same and Z will have 4/10 x 2,000 or
800, thus X will get a total of 3, 600, Y 3, 600 and Z 4, 800 or a total of
12, 000.

The testator has no compulsory heirs. He indicates in the will


his intention to give his entire estate to his heirs. He gives to A,
1/3 to B and 1/4 to C. The estate is worth 30, 000, therefore, A gets
15, 000, B gets 10, 000 and C gets 7, 500 or a total of 32, 500. Since
the estate is 30, 000, what will you do with the excess of 2, 500?

1. Get the least common denominator: 12


A = 6/12
B = 4/12
C = 3/12

2. Get the ratio of the shares with each other.

A(6) : B(4) : C(3)

6 + 4 + 3 = 13

3. Multiply the excess by the share of each heir in the


ration in (ii).

For A: 6/13 x 2, 500 = 1, 153.84

For B: 4/13 x 2, 500 = 769.23

For C: 3/13 x 2, 500 = 576.93

4. Subtract the results in (iii) from what each heir was to


receive initially.

For A: 15, 000 1, 153.84 = 13, 846.16

For B: 10, 000 769.23 = 9, 230.77

For C: 7, 500 576.93 = 6, 923.07

5. Add the figures in (iv) to make sure it equals to the


value of the whole estate.

13, 846.16 + 9, 230.77 + 6, 923.07 = 30, 000.

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2012 Notes Compilations onWills and Succession 150

6. If you want to get the inheritance of each right away,


multiply the ratio in (iii ) by the value of the estate.

For A: 6/13 x 30, 000 = 13, 846.16

For B: 4/13 x 30, 000 = 9, 230.77

For C: 3/13 x 30, 000 = 6, 923.07

The testator has instituted as heirs, X, Y and Z and he gives X


, to Y 1/3 and Z another 1/3.The estate or the available free
portion amounts to 12, 000. How will the estate be distributed?

X should get 6, 000, Y 4, 000 and Z 4, 000 which will total 14,
000 or more than the estate available. The excess is 2, 000. This shall be
divided proportionally among the heirs. Thus, since X gets or 3/6, Y
1/3 or 2/6 and Z another 1/3 or 2/6, the proportion is 3:2:2. Therefore,
Xs share in the 2, 000 shall be 3/7, Ys share will be 2/7 and Zs share
will also be 2/7 or x will get 857.14 2/7, Y will get 571.42 6/7 and Z
571.42 6/7. These amounts shall be deducted from that which they
ought to receive.

The testator institutes as his universal heirs A to 1/2 of the


entire inheritance, B to 1/3, C to , and D to 1/6. The net
remainder of the estate after the death of the testator is P120,000.
How much is the share of each instituted heirs?

Solution - Before we can compute the share of each of the instituted


heirs, each aliquot part to which each heir was instituted shall have to be
decreased proportionately. According to the institution, A shall receive
1/2 of P120,000 or P60,000; B to 1/3 of P120,000 or P40,000; C to of
P120,000 or P20,000; and D to 1/6 of P120,000 or P20,000, the
aggregate amount of which is P150,000, which is more by P30,000 than
the aggregate amount available for distribution.

Arithmetical: Since the proportion in which A, B, C and D had been


instituted is 6:4:3:2, therefore, As share of P60,000 shall be reduced by
6/15 of P30,000 or P12,000; Bs share of P40,000 shall be reduced by
4/15 of P30,000 or P8,000; Cs share of P30,000 shall be reduced by
3/15 of P30,000 or P6,000; Ds share of P20,000 shall be reduced by
2/15 of P30,000 or P4,000. Thus, A shall be entitled to only P48,000; B
to only P32,000; C to only P24,000; and D to only P16,000.

Algebraic:

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2012 Notes Compilations onWills and Succession 151

Share of A = P120,000 x P60,000


____________________ = P48,000
P150,000

Share of B = P120,000 x P40,000


____________________ = P32,000
P150,000

Share of C = P120,000 x P30,000


____________________ = P24,000
P150,000

Share of D = P120,000 x P20,000


____________________ = P16,000
P150,000

What is preterition and its effects?

Article 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 heirs should die before the testator, the
institution shall be effectual, without prejudice to the right of
representation.

What are the three kinds of preterition?

1. Preterition or omission of a compulsory heir in the direct line


covered by Article 854;
2. Preterition or omission of a property, objects or securities in the
project of partition covered by Article 1103;
3. Preterition or omission of an heir in the project of partition
submitted to the court for approval covered by article 1104.

What are the requisites of preterition?

1. The heir omitted must be a compulsory heir in the direct line


(legitimate, illegitimate and adopted children included)
2. The omission from the inheritance must be total and complete in
character;
3. The compulsory heir omitted should survive the testator, or there
is a right of representation.

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2012 Notes Compilations onWills and Succession 152

The law considers as preterition the omission of a


compulsory heir in the direct line, whether living at the time
of the execution of the will or born after the death of the
testator. Also evidently included are those born after the
execution of the will and before the death of the testator so
long as they are alive at the time of the death of the testator.
However, should the compulsory heir predecease the
testator, the institution shall be effectual i.e., it is the same
as if there had been no preterition. But if the preterited heir
has legitimate children and descendants who have
preferential right of succession by right of representation
(Article 970), the institution will be annulled, just the same
i.e., preterition will still result notwithstanding that the
preterited heir died before the testator.

Should the compulsory heirs omitted, however predecease


the testator, there is no preterition unless there is a right of
representation in which case preterition will still result
notwithstanding the predecease of said compulsory heir.

Where is there no omission:

1. If the heir in question is instituted in the will but the portion given
to him by the will is less than his legitime inasmuch as the heir
received something from the inheritance. The heirs remedy is not
found on Article 854 but in Articles 906 and 907 for the
completion of their legitime.

2. If the heir is given a legacy or devise. Should the value of the legacy
or devise be less than the recipients legitime, his remedy is for
completion of his legitime under Articles 906 and 907.

3. If the heir had received a donation inter vivos from the testator
the donation inter vivos is treated as an advance on the legitime
under Articles 906, 909, 910 and 1062.

4. If the heir is not mentioned in the will nor was a recipient of a


donation inter vivos from the testator, but not all of the estate is
disposed of by will. The omitted heir in this instance would receive
something by intestacy, from the portion not disposed of by will.
The right of the heir, should the vacant portion be less than his
legitime, will simply to demand completion of his legitime under
Article 906 and 907.

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2012 Notes Compilations onWills and Succession 153

NOTE: For there to be preterition, there, the heir in question must


have received nothing from the testator by way of:

a. Testamentary succession,
b. Legacy or devise,
c. Donation inter vivos, or propter nuptials,
d. Intestacy.

Preterition means total omission in the inheritance.

Summarizing therefore, total omission means that the omitted


compulsory heir receives nothing under the will, whether as heir, legatee
or devisee, has received nothing by way of donation intervivos or
propternuptials, and will receive nothing by way of intestate succession.

What are the effects of preterition?

1. The institution of heirs is annulled, that is, by force or operation of


law;
2. The devises and legacies shall be valid, unless inofficious; this
simply means they are reducible to preserve the affected legitimes;
3. If the compulsory heirs would predecease the testator, the
institution of heir shall be effectual, but the omitted heir would be
represented by his heirs, when representation is proper.

Other effects:

1. If the omitted heir is not in the direct line (like a spouse), only his
legitime is given to him and the institution of heir is annulled up to
that extent only.
2. As intestacy results, the previous appointment of the executor is
rendered moot and academic. The appointment of an administrator
becomes necessary.

Who are included within the term of the article?

1. Compulsory heirs in the direct line covers children or


descendants, and in proper cases, in default of children or
descendants, parents or ascendants;
2. Illegitimate descendants or ascendants;
3. Quasi-posthumos children.

There is a flaw in the wording of the Article. The phrase


whether living at the time of the execution of the will or
born after the death of the testator does not, by its terms,

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2012 Notes Compilations onWills and Succession 154

include those compulsory heirs in the direct line born after


the execution of the will but before the testators death (los
cuasi postumos) Such children are, without doubt, to be
included within the purview of the protection of this Article.
This gap is merely the result of careless drafting (according
to Manresa)

4. Adopted children.

How do you distinguish preterition from disinheritance?

i. Preterition may be intentional but is presumed to be


involuntary, while disinheritance is always voluntary.

ii. In preterition, the law presumes that there has been


merely some mistakes or oversight, while in
disinheritance, there is some legal cause or reason.

iii. In preterition, the nullity of the institution is total


resulting in intestacy, saving devises and legacies,
while in disinheritance, the nullity is partial, i.e. not
only insofar as it may prejudice the heir disinherited.

iv. In preterition, the omitted compulsory heir gets his


share from the entire estate, i.e. not only his share of
the legitime but also of the free portion not disposed of
by way of devises and legacies, while in disinheritance,
if valid, the compulsory heir is excluded from the
inheritance and if defective, the compulsory heir is
merely restored to his legitime, and testamentary
dispositions which are inofficious reduced.

v. In pretertion, a compulsory heir in the direct line is


omitted, while in disinheritance, any compulsory heir
may be disinherited though not in the direct line.

The express deprivation of the legitime


constitutes disinheritance. The tacit deprivation
of the same is called preterition. This is not to
say however, that disinheritance and preterition
are the same. Disinheritance consists precisely
in the deprivation of a compulsory heir of his
legitime by virtue of a just cause provided for by
law, and since disinheritance is always express,
it is always voluntary. Preterition, on the other

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2012 Notes Compilations onWills and Succession 155

hand, is the omission of an heir in the will.


Consequently, preterition may also be voluntary
but the law presumes that it is voluntary

Application:

1. In his will, X stated: I instituted my 2 children A and B as my


sole heirs to my entire estate, and to C, my other child, I give
nothing. Is there preterition here?

There is disinheritance (Article 918), not preterition. Here X


makes it known that he really had no intention to give any part of
his estate to C. If the disinheritance is improper, C can still get his
legitime. The institution of A and B remains valid.

2. X institutes his sons A and B, and a friend C. His 3 rd son D was


omitted. If the entire estate is 90, 000.00, how should his
estate be distributed?

Since the institution is annulled, it is as if there was no


institution, hence, intestate succession takes place. A, B and D will
get 90, 000. C, the friend gets nothing.

3. X had 2 sons, A and B. In Xs will, he gave C a friend a legacy


of 10, 000 out of an estate of 100, 000. A and B were omitted.
How should the estate on Xs death be distributed?

Since the estate is worth 100, 000, the free portion is 50,
000. Therefore, the legacy of 10, 000 is not inofficious and should
remain effective. The remaining 90, 000 should be divided equally
between the 2 estate.

4. X had 2 legitimate sons A and B. In Xs will, he gave a friend C


a legacy of 10, 000. He also instituted A as heir and
deliberately omitted B. If the estate is 100, 000, how should
the estate be distributed on Xs death?

In view of the preterition, the institution of A is not valid, but


the legacy is effective for the legitime has not been impaired.
Therefore, the remaining 90, 000 shall be divided intestate between
A and B.

5. In the problem above, suppose the legacy is 60, 000, how


would the estate be distributed?

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2012 Notes Compilations onWills and Succession 156

The estate being 100, 000, the free portion is only 50, 000,
hence, the legacy of 60, 000 is inofficious and should be reduced
by 10, 000, leaving A and B 25, 000 each.

6. X instituted Y a friend as heir to an estate of 100, 000. Y dies


ahead of X but leaves a son Z. Upon Xs death, will Z get
anything?

No, because Y the father was a voluntary heir who


predeceased the testator. The estate should therefore go to the
intestate heirs of X.

7. T has three legitimate children, X, Y and Z. He institutes in


his will X, Y and his cousin C. The estate is 150, 000.
The institution is totally annulled. There is total intestacy.
Thus, X, Y and Z will get 50, 000 each and C gets nothing

8. In the same example, T gives instead to C a devise of real


property worth 30, 000.

The remaining 120, 000 of the estate shall be distributed 40,


000 each to X, Y and Z.
9. In the preceding example, the legacy given to C is 100, 000.

The legacy is inofficious by 25, 000. The estate shall be


distributed be distributed as follows: 75, 000 to C, 25, 000 equally
X, Y and Z.

10. Suppose, in the first example, Z is given 15, 000.

Z will be entitled to his full legitime of 25, 000 (he gets


additional 10, 000). The balance of 125, 000 shall be distributed
equally between X, y and z.

11. Same, but T gives to C his cousin 50, 000, X and Y 100,
000 to be divided equally between them, out of his entire
estate of 150, 000.

There is no preterition. Z is entitled only to get his share of


the legitime of 25, 000. C will get the 50, 000 as it is not inofficious
and the remainder of 75, 000 shall be divided equally between X
and Y. The presumption is that T wants Z to receive only his share
of the legitime.

12. Suppose in the first example, Z is the wife of T. Is there


preterition?

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2012 Notes Compilations onWills and Succession 157

There is no preterition because Z is not a compulsory heir in


the direct line. Z shall be merely restored to her legitime to be
taken from the free portion. Under Article 892 (par, 2), it shall be
equal to the legitime of each pf X and Y. The legitme of X and Y is
of the hereditary estate or 75, 000 (Art. 888, [par. 1]. They get
37, 500 each. So, Z also gets 37, 500. The remainder shall go to C.

Can there be preterition of an adopted child?

Yes, because an adopted child has the same rights as a legitimate


child. (Acain vs. IAC, Oct. 27, 1987)

X objected to the will of Y, his son, on the ground that (a) He


has not been instituted, he being the only heir of his son; and (b)
That even if he is instituted, his share is less than Z, his wife, as the
free portion was left to Z.

Rule on Xs objections.

a. His objection is proper if the parents of Y are the only


nearest relatives, Y having no issues. (Nuguid vs. Nuguid, 17
SCRA 449). There is preterition if the parents, who are the
only closest relatives of the decedent are not instituted,
because while the law mentions of direct line, it does not
make a distinction, whether ascending or descending.

b. The will is still valid even if the share of one of the heirs is
less than the other. Variation in the shares of the heirs is
normal and is the essence of the law. (Heirs of Montinola-
Samson vs. CA, G.R. No. 76648, Feb. 26, 1988)

If a sister of the decedent is not instituted, can she oppose the


probate of the will on the ground of preterition?

No, because a sister is not a compulsory heir in the direct line. She
is a relative in the collateral line. (Article 854; Ventura vs. Ventura, April
27, 1988)

X, the daughter-in-law of A, opposed the will of the latter


contending that X was not instituted as an heir, hence, there is
preterition. Is Xs contention correct? Why?

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2012 Notes Compilations onWills and Succession 158

No. Preterition of a daughter-in-law does not annul the institution


of heirs because she is not a compulsory heir in the direct line of her
mother-in-law. (Rosales vs. Rosales, Feb. 27, 1987)

During the lifetime of A, he executed a last will and testament


instituting his parents X and Y. At the probate of the will, B, an
illegitimate son of A, opposed on the ground of preterition. Will the
contention of B prosper?

Yes, because there was preterition of a compulsory heir in the


direct descending line. The law does not make a distinction whether the
heir is legitimate or illegitimate.

Suppose that it is the husband or the wife who is omitted in


the testators will, would there be a preterition, which would have
the effect of annulling the institution of heirs?
No, because a husband or wife is not a compulsory heir in the
direct line. However, such husband or wife would still be entitled to his
or her legitime, in other words, there would be an annulment of the
institution of heirs but only to the extent that the legitime of such
husband or wife is prejudiced.

Is there any difference as to effect between the omission of a


forced heir by mistake or inadvertence and voluntary or intentional
omission?

Yes, in Acain vs. IAC, G.R. No. 72706, Oct. 27, 1987, it was held
that if preterition is by mistake or inadvertence, there is true preterition
and total intestacy results. The reason for this is the inability to
determine how the testator would have distributed his estate if none of
the heirs had been omitted or forgotten.
If the omission is intentional, the effect would be a defective
disinheritance covered by Article 918, in which case the institution of
heirs is not wholly void but only insofar as it prejudices the legitime of
the person disinherited. The nullity is partial unlike in true preterition
where the nullity is total.
Preterition is presumed to be only an involuntary omission; that if
the testator had known of the existence of the compulsory heir at the
time of the execution of the will, he would have instituted such heir. On
the other hand, if the testator attempts to disinherit a compulsory heir,
the presumption of the law is that he wants such heir to receive as little
as possible from the estate.

What is the right of the preterited heir or heirs?

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2012 Notes Compilations onWills and Succession 159

They are entitled not only to their shares of the legitime but also to
those of the free portion which was not expressly disposed of by the
testator by way of devise and legacies, unlike in the case of improper
disinheritance or incomplete legitime wherein their right is limited to the
completion of their legitime.

If the omitted heir is not in the direct line, the institution of heir is
annulled only to the extent that it impairs the legitime. This is not true
preterition.

If an heir was omitted, from where will his share be taken?

i. The estate not disposed of by will; or


ii. Proportionately from the shares of the other
compulsory heirs, if the first is not enough. (Art. 855)

Outline of the rules under Article 856:

Kind of Predecease Incapacity Renunciation Disinheritanc


heir e
Compulsor Transmits Transmits Transmits Transmits
y nothing nothing nothing nothing
Representatio Representatio No Representatio
n n representatio n
n
Voluntary Transmits Transmits Transmits Not applicable
nothing nothing nothing
No No No
representatio representatio representatio
n n n
Legal Transmits Transmits Transmits Not applicable
nothing nothing nothing
Representatio Representatio No
n n representatio
n

Application:

1. A and B are legitimate children of X. C is a legitimate child of


A. The estate is worth 100, 000. A and B were instituted heirs.

i. If A dies before X, how much will C and B get?

A was a compulsory heir to the legitime of 25,


000. Therefore, C will get only 25, 000 in
representation of A. The remaining 75, 000 will all go
to B.

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2012 Notes Compilations onWills and Succession 160

ii. If A is incapacitated?

The same answer as (i).

iii. If A renounces the inheritance?

C gets nothing since a person who renounces


an inheritance cannot be represented. Therefore,
everything goes to B.

2. T has two legitimate children, X and Y. X has a child C. Y is


childless. T institutes X, Y and F (a friend) as heirs and gives a
legacy of 10, 000 to L. The value of the estate is 100, 000.

a. X predeceases T Since X is a compulsory heir instituted in


a will, he can be represented with respect to the legitime
only. As to the free portion, he is a voluntary heir. Hence C
gets only 25, 000. Y and F get the undisposed portion of 65,
000 equally. L will get the 10, 000. In testate succession, the
right of representation pertains only to the legitime.

If T dies without a will, and X and Y are the sole heirs,


c will get 50, 000 by right of representation of x. In intestate
succession, the right of representation covers the whole
share of the person represented.

b. Y predeceases T X and F get 90, 000 equally, L gets 10,


000

c. F predecease T Since he is a voluntary heir, he cannot be


represented. He transmits absolutely nothing to his heirs. X
and Y get 90, 000 equally, L will get 10, 000. In testate
succession, only compulsory heirs may be represented.

d. L predeceases T Since he, as legatee, is not a compulsory


heir, he cannot also be represented. X, Y and F get the entire
inheritance equally.

e. If Y renounces the inheritance, how much would C get?

C will get nothing.

Notes:

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When there is right of representation, the representative inherits


directly, not from the person represented (the one who
predeceases, becomes incapacitated, or has been disinherited), but
from the one whom the person represented would have succeed,
i.e., the testator or decedent whose estate is inherited.

In the case of representation, the heir represented does not


transmit his rights to the heir representing him; the representative
acquires directly from the decedent or testator the rights which the
person represented would have received if he had inherited. Article
971 provides: The representative does not succeed the person
represented but the one whom the person represented would have
succeed.

As Mr. Justice J.B.L. Reyes says, The code in fact recognizes no


exceptions to this rule. The right of representation does not
constitute an exception, because the one representing does not
acquire the inheritance from the one represented. This is expressly
recognized by Article 971. Hence the representation does not imply
that the one represented acquires and transmits rights to his
representative.

Thus, the phrase except in cases expressly provided for in this


Code in the second paragraph of Art. 856 does not really provide
exceptions to the three situations mentioned in the said Article. It
is still true that the heir or person transmits nothing to heirs
having acquired none.

There is only representation with regard to the legitime because


the compulsory heir is only one with regard to the legitime and is a
voluntary heir with regard to the free portion. The right of
representation exists only in case of predecease, incapacity and
disinheritance but does not exist in repudiation. Therefore, if the
heir is voluntary and he predeceases or repudiates or is
incapacitated to succeed, he transmits nothing to the heirs
absolutely because there is no right of representation as to the
voluntary heir. In the case of the compulsory heir he transmits no
rights to his heirs in case of predecease, incapacity, repudiation or
disinheritance without prejudice to the right of representation
which, however, may exist only in case of predecease, incapacity or
disinheritance but never when there is repudiation.

Note that a compulsory heir in the ascending line cannot be


represented (Article 977). In the collateral line, it takes place only

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2012 Notes Compilations onWills and Succession 162

in favor of nephews and nieces of the deceased when they survive


with brothers and sisters of said decedent.

An heir, even though a compulsory one, who has repudiated his


share of the inheritance may not be represented. (Art. 977)
because one who validly renounces an inheritance is deemed never
to have received the same (Art. 533, par. 2). The rule is absolute.
But a person may represent him whose inheritance he has
renounced. (Art. 976) Thus a son who renounced the inheritance
from his father may represent the father in the inheritance from
the latters father.

Thus, in testate succession, the right of representation covers only


the legitime. In intestate succession, it covers the entire share of
the person represented. The whole inheritance would descend by
the rules of intestate succession.

SECTION 2. - SUBSTITUTION OF HEIRS

Define substitution of heirs.


Substitution is the appointment of another heir so that he may
enter into the inheritance in default of the heir originally instituted.

What rules on institution of heir are made applicable in


substitution?

Since substitution is merely a second institution, the principles


and rules on institution of heir are applicable to substitution, except in
so far as they may be modified by the express provisions on substitution.
Thus

a. The substitution can affect only that portion of the


inheritance for which institution can be made; namely, the
free portion where there are compulsory heirs and the entire
estate when there are none.
b. The manner in which the testator should designate and
identify the substitute is governed by the pertinent rules on
institution (Articles 843 to 845)
c. If two or more persons are substituted for another, their
shares are to be determined by the same rules which apply
to the institution of several heirs (Articles 846 to 849, and
851 to 853).

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d. A substitute who dies before the testator, or who is


incapacitated to succeed, or who repudiates the inheritance,
does not transmit rights to his own heirs (Article 856).

What property of the testator may be the subject of


substitution?

Substitution can never refer to the legitime because the law


prohibits the testator from imposing any burden, encumbrance,
condition or substitution of any kind whatsoever on the legitime.
Therefore, substitution may refer only to the free portion.

Can there be substitution in devises and legacies?

There can be substitution in devises and legacies because there is


no prohibition in our law regarding substitution and it may be justified
under the principle of disposition of the testator.

How is substitution distinguished from accretion?

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 co-heirs, co-devisees,
or co-legatees. As in substitution, therefore, a vacant portion of the
inheritance goes to another heir.
In case of conflicting claims between a substitute and an heir
entitled to accretion, the former should be preferred, because his right
from the express will of the testator while that of the latter is derived only
from a will presumed by law.

What are the purposes of substitution?

1. To prevent the property from falling into the ownership of people


not desired by the testator;
2. To prevent the effects of intestate succession;
3. To allow the testator greater freedom to help or reward those who
by reason of services rendered to the testator, are more worthy of
his affection and deserving of his bounty than intestate heirs.
4. It is designed for the prosperity and heritage of the family.

What is the nature or character of substitution?

1. Substitution obtains only in testate succession, hence,


there is no substitution in intestate succession;

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2. It is a consequence of the principle of freedom of


disposition, which is recognized in favor of the testator;
3. it is nothing more than a subsidiary or secondary
institution of a second or subsequent heir, hence,
Section 2 on Institution of Heir also applies except
insofar as its provisions ma be modified by those on
substitution;
4. It is really a conditional institution, involving as it does
a suspensive conditional for the substitute heir, hence
the provisions on conditional substitution are also
suppletorily applicable;
5. It may refer only to the free portion because the law
prohibits the testator from imposing any burden,
encumbrance, condition, or substitution of any kind
whatsoever on the legitime (Article 872, 904); and
6. It has preference, after institution of heir, over right of
representation, right of accretion and intestacy.

What is the order of priority in case of institution,


substitution, representation, accretion and intestacy?

1. Institution if there is a valid and effective institution of heirs, the


institution shall be followed (Article 840). The instituted heirs shall
inherit even if there is a provision for substitution.
2. Substitution If there is a provision for substitution, the
substitute/s will inherit if the instituted heir/s become
incapacitated, or repudiated the inheritance or predeceased the
decedent and there are no available representatives. Substitution
is conditional institution.
3. Representation If there is no provision for substitution, the
instituted heir/s who could not inherit will be represented by their
descendant/s or representative/s if representation is proper and
applicable (Article 970). However, a repudiating heir cannot be
represented (Article 977)
4. Accretion If the instituted heir predeceased the decedent, or was
incapacitated and representation is not proper and applicable, or if
he repudiated the inheritance, his share which becomes a vacant
portion of the inheritance shall be inherited by his co-heirs, co-
devisees or co-legatees by accretion (Article 1015).
5. Intestacy If institution, substitution, representation and
accretion all failed, intestacy will set in. The estate will be divided
in accordance with the rules on intestacy (Article 960 to 1014).

What are the kinds of substitution of heirs?

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1. Simple or common (vulgar);

Where the testator designates one or more persons to


substitute the heir or heirs instituted in case of (1) predecease; (2)
renunciation or repudiation; and (3) incapacity.

2. Brief or compendious (brevilocua / compendiosa);

Where two or more persons are substituted for one (brief


substitution), and one person for two or more heirs (compendious
substitution)

3. Reciprocal (reciproca)

Where the instituted heirs are also made the substitute of each
other.

4. Fideicommissary (fideicommisaria).

Where the testator institutes a first heir, and charges him to


preserve and transmit the whole or part of the inheritance later on
to a second heir.

Note: In reality, there are only two kinds of substitution: the


simple and the fideicommissary. These two are mutually exclusive, i.e., a
substitution must be one or the other, and cannot be both at the same
time.

The other two enumerated the brief or compendious and the


reciprocal are mere variations of either the simple of fideicommissary.

What are the causes of simple substitution?

a. Predecease of the first heir


b. Renunciation of the first heir;
c. Incapacity of the first heir.

How may the testator provide for simple substitution with all
three causes?

a. By specifying all the three causes;


b. By merely providing for a substitution.

How may restricted simple substitution be made?

By specifying only one or two of the three causes.

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X instituted A and B as substitute. X did not state the causes


for which the substitution may be made. What should these causes
be?

All or any of the three cases, unless X has provided otherwise.

If the second heir (or the substitute) enters into the


inheritance, does he do so because he succeeds from the first heir?

No. The second heir succeeds from the testator and not from the
first heir.

Note: It may happen that the heir for whom a substitute is


appointed is a compulsory heir of the testator. In such case, the
substitution cannot affect the legitime, because the law prohibits the
testator from imposing any charges, conditions, or limitations upon that
part of his inheritance. Besides, the power to appoint a substitute
emanates only from the freedom to dispose by will; since the legitime is
not subject to the free disposal of the testator, there is nothing to justify
his right to order vulgar substitution as to such part.

What are the instances when the substitution is extinguished?

a. When the substitute predeceases the testator;


b. When the substituted is incapacitated;
c. When the substitute renounces the inheritance;
d. When the institution of heir is annulled by preterition;
e. When the institution or the substitution is revoked by the
testator;
f. When the will is void or disallowed or revoked.

In case of simple or vulgar substitution, the same is


extinguished:

a) By the nullity of the will;


b) By the annulment of the institution of
heir;
c) By the death of the substitute before the
testator;
d) When the substitute himself is
incapacitated to succeed the testator, and
e) When the substitute repudiates or
renounces the inheritance.

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If the substitution is conditioned upon the


renunciation of the inheritance by the first heir, the
substitution is extinguished by the death of the substitute
before the repudiation by the instituted heir. Such
substitution is essentially a conditional institution of the
second heir. Therefore, the second heir must have the
capacity at the time the condition (renunciation by first heir)
happens. To have capacity, the second heir must be living at
that time (Article 1025); hence, if he had died prior to the
happening of the condition, or the renunciation, he cannot
succeed because of want of capacity. The capacity must be
determined, not only at the time of the testators death but
also when the condition happens (Article 1034, par. 3).

X made a will instituting A as heir, and B as substitute. In


1995, B died, leaving C, his child. In 2000, X died but B is
incapacitated to inherit. Can C inherit from X?

No, because B is a voluntary heir and since he predeceased the


testator, he transmits nothing to his own heirs.

X made a will instituting B as heir, and B as substitute. X died


in 2000. B renounced the inheritance in 2001. B died in 2002. Can
C, the child of B inherit from Xs estate?

Yes, because this is not a case of predecease on the part of B, who


after all survived the testator, and immediately inherited from X, subject
to the condition of Bs non-inheritance. Since the condition was fulfilled,
B inherited. C gets the estate not as an heir of X but as an heir of B.

X institutes A to 120, 000, B to 20, 000, and C to 40, 000. The


estate is 180, 000. A made the substitute of B or C; B and C are
substitutes of A. A predeceased B and C. How much will B and C
get?

B gets 60, 000. (20, 000 by institution, 40, 000 by substitution)


C gets 120, 000. (40, 000 by institution, 80, 000 by substitution)

X makes the following provisions in his will: I institute A and


B to 1/3 of my estate and nominate C as their substitute. If A
predeceases B, will the 1/3 portion go to C?

No, the 1/3 portion goes to B. There is no substitution by C.


Substitution occurs only of both A and B are disqualified. (The obvious
exception to this is a case where the testator provides for substitution in

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the event of the death (or renunciation or incapacity) of any one of the
original heirs.)

Note: If one is substituted for two or more original heirs - effect of


default of one but not all of the original heirs: substitution will not take
place; the share left vacant will accrue to the surviving co-heir or co-
heirs. Substitution will take place only if all the original heirs are
disqualified.

A, B and C are instituted, respectively, to , 1/3 and 1/6 of


the estate. Should A predecease the testator, how much would B and
C get?

B and C will acquire As portion in the proportion of 2:1 (since


their testamentary shares are 1/3 and 1/6).

Should B predecease, how much would A and C get?

A and C will get Bs 1/3 portion in the proportion of 3:1


(corresponding to the testamentary shares of and 1/6).

Should C predecease, How much would A and B get?

A and B will share Cs 1/6 portion in the proportion of 3:2, by the


same logic.

Note: If heirs instituted in unequal shares should be reciprocally


substituted shall acquire the share of the heir who dies, renounces, or is
incapacitated, unless it clearly appears that the intention of the testator
was otherwise. If there are more than one substitute, they shall have the
same share in the substitution as in the institution.

I institute A, B and C to 1/3 of my estate and in case they all


die before me, I institute D by way of simple substitution. If A and
B predeceases the testator, will D get any share?

No, the substitution will take effect only upon the death of all the
three. However, if what was stated was any or all die before me, then
D will get A and Bs share.

I institute A to 1/3, B to 1/6, and C to of my estate and by


way of simple substitution, I institute them as substitutes of one
another. If C predeceases the testator, how will his share be divided
if the estate is worth 60, 000?

A = 1/3 = 20, 000

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B = 1/6 = 10, 000


C = = 30, 000

a. Get the LCD of the remaining heirs : 6

A = 2/6
B = 1/6

b. Get the ratio between the remaining heirs and the sum of the
ratios:

2:1 = 3
A = 2/3
B = 1/3

c. Multiply the original share of C by the ratio in (b)

A = 2/3 x = 2/6
B = 1/3 x =1/6

d. Add the result in (c) to their original shares

A = 2/6 + 2/6 = 4/6


B = 1/6 + 1/6 = 2/6
e. Multiply the result in (d) by the value of the estate

A = 4/6 x 60, 000 = 40, 000


B = 2/6 x 60, 000 = 20, 000

Article 866 provides that 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 heir. Is it possible that the second heir has no heirs?

That the second heir has no heirs is impossible. His heirs are:
descendants, ascendants, and collateral relatives to the fifth degree, then
the state.

What is the effect of the charges and conditions imposed on


the substitution?

General rule: If the substitute inherits, he must fulfill the


conditions imposed on the original heir.

Exceptions:

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1. If the testator has expressly provided the contrary (which must


appear in the will);
2. If the charges or conditions are personally applicable only to the
heir instituted.

Distinguish between a fideicommissary substitution from a


simple substitution.

While in the simple substitution, only one of the heirs inherits, in


the fideicommissary, both inherit the property or right simultaneously,
although the enjoyment and possession are successive.

What are the requisites of the fideicommissary substitution?

a. There must be a first heir called primarily to the enjoyment


of the property
b. There must be an obligation clearly imposed upon him to
preserve and transmit to a third person the whole or part of
the inheritance;
c. There must be a second heir;
d. The first and second heirs must be only one degree apart;
e. Both heirs must be alive or at least conceived at the time of
the testators death;
f. It must be made in an express manner;
g. It must not burden the legitime (it must be imposed on the
free portion only); and
h. It must not be conditional.

What does the requirement one degree mean?

There is no question that only one transmission is allowed in


fideicomisoria, from the first heir to the second heir. But, on top of that,
does the term one degree mean that the second heir must be in the first
degree of relationship with the first heir, as the word degree is used in
Article 963, 964 and 966? In other words, must the second heir be either
a child or a parent of the first heir?

Yes, ruled the Supreme Court in Palacios vs. Ramirez, 111 SCRA
704.

Manresa, Morell and Sanchez Roman construe the word degree


as generation, and the present Code has obviously followed this
interpretation, by proving that the substitution shall not go beyond one
degree from the heir originally instituted. The Code thus clearly
indicates that the second heir must be related to and be one generation
from the first heir.

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From this, it follows that the fideicommissary can only be either a


child or a parent of the first heir. These are the only relatives who are one
generation or degree from the fiduciary.

What is the tenure of fiduciary?

Primary rule the period indicated by the testator


Secondary rule if the testator did not indicate a period, then the
fiduciarys lifetime.

What does the requisite that both heirs must be living and
qualified to succeed at the time of the testators death mean?

Living this requisite is defined in Articles 40-41


Qualified Articles 1024-1034

This two-fold requirement is to be met only upon the testators


death, and this applies not only to the fiduciary but to the second heir as
well. Thus, the second heir need not survive the first heir; the second
heirs own heirs merely take his place.

What is the nature of the rights of the fiduciary heir and the
fideicommissary substitute with respect to the property which is
the subject matter of the substitution?

Upon the death of the testator or fideicomitente, the fiduciary heir


acquires all the rights of a usufructuary until the moment of delivery to
the fideicommissary substitute. In other words, pending the transmission
or delivery, he shall possess the beneficial ownership of the property,
although the naked ownership is vested in the fideicommissary
substitute.

What are the obligations of the fiduciary heir?

1. Preservation of the property. Corollary to this obligation is the


obligation to make an inventory of the property. Because of this
obligation to preserve, he cannot alienate the property itself,
although he may alienate his right to the property;
2. Transmission of the property to the fideicommissary substitute.
The time of transmission shall depend on the will of the testator. If
the time is not designated, then the transmission shall take place
upon the death of the fiduciary heir.

Is a fiduciary bound to furnish a bond?

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A fiduciary, being considered in the same situation as a


usufructuary, is not bound to furnish a bond.

In a fideicommissary substitution, no period was fixed by the


testator as when the property shall be transmitted to the second
heir. What rule shall apply?

In the absence of a period fixed by the testator, the inheritance is


supposed to be delivered at the death of the first heir.

X devised a land to A. He provided in the will that A would


enjoy the land as long as A lived, bit after his death, the same
should go to B. Is there a fideicommissary substitution here?

No, because there was no obligation to preserve.

X instituted A as the first heir, and B (As brother), as second


heir in a fideicommissary substitution. When X dies, A got the
property. Will B now get the property?

No, because the fideicommissary substitution was not valid, B,


being a relative of the second degree of A. Consequently, As heirs get the
property.

X instituted A as first heir, B (As son) as second heir; and C


(Bs mother) as third heir in a fideicommissary substitution. Is this
valid?

It is valid insofar as A will get and then B. But on deaths, C does


not get the property as a result of the fideicommissary substitution
because C is not one degree apart for A.

X instituted a as first heir, As third child as second heir. If A


does not still have a child at the time X dies, can the
fideicommissary substitution be given effect?

No, for the second heir was not yet living or conceived at the
testators death. This is so even if at the time A dies, the third child
already exists.

X institutes A as first heir, B as second heir. B dies in 2000; X


dies in 2001. In 2002, does A inherit?

Yes, for while the substitution is not valid, the institution remains
valid.

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How much should be delivered to the second heir?

1. The general rule is that the fiduciary should deliver the property
intact and undiminished to the fideicommissary heir upon the
arrival of the period.

2. The only deductions allowed, in the absence of a contrary


provision in the will are:

1. Legitimate expenses like necessary repairs for


the preservation of the property
2. Legitimate credits;
3. Legitimate improvements necessary and useful
improvements

What is the rule on damage or deterioration?

1. If caused by a fortuitous event or ordinary wear and tear


fiduciary not liable.
2. If caused by fiduciarys fault or negligence fiduciary liable.

X instituted A as first heir, and B as second heir. X died in


2000. B died in 2001, leaving a son C. On As death, will C get the
property?

Yes. On Xs death in 2000, A got the property and on As death,


same should go to the heirs of B. B really had already inherited from X
since he acquired the right from Xs death; and his right goes to C, his
heir, even if B predeceased the fiduciary A. Had B predeceased X, B
would never have acquired any right to the property and would not be
able to transmit same to his own heir.

What provisions shall not take effect?

1. Fideicommissary substitutions which are not made in an express


manner, either by giving them this name, or imposing upon the
fiduciary the absolute obligation to deliver the property to a second
heir.

[Note that the lack of this element does not, by the fact
alone, nullify the institution. It only means that the institution is
not a fideicomisaria. It could; however be something else, as was
the case in PCIB v. Escolin]

2. Provisions which contain a perpetual prohibition to alienate, and


even a temporary one, beyond the limit fixed in Article 863.

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[If there is fideicomisaria, the limit is the first heirs lifetime.


If there is no fideicomisaria, the limit is 20 years.]

3. Those which impose upon the heir the charge of paying to various
persons successively, beyond the limit fixed in Article 863, a
certain income or pension

[Conformably to the limits set in Article 863, there can only


be two beneficiaries of the pension, one after the other, and the
second must be one degree from the first. There is no prohibition,
however, on simultaneous beneficiaries.]

4. Those, which leave to a person the whole or part of, the hereditary
property in order that he may apply or invest the same according
to secret instructions communicated to him by the testator.

[The ostensible heir is in reality only a dummy, because in


reality, the person intended to be benefited is the one to whom the
secret instructions refer.]

If the testator imposes a longer period than 20 years, is the


prohibition valid?

Yes, but only for 20 years.

If there is a fideicommissary substitution, can the testator


impose a period longer than 20 years?

Yes, because the limitation will not apply. Rather, Article 863 will
apply, which allows, as a period, the lifetime of the first heir.

X devised a land to A and prohibited him never to sell the


property. Is the prohibition valid?

Strictly speaking, the prohibition is of no effect, but considering


Article 870, the same would be valid, but only for the first twenty years.

X instituted A as first heir, and B as second heir in a


fideicommissary substitution. X died and A got the property. If A
lives for 50 years more, can A sell the property?

No, he must preserve the property till his death, then B takes the
property.

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X instituted A as first heir, and B as second heir in a


fideicommissary substitution. X ordered A not to sell the property
for 30 years, and after said period to deliver the property the
property to B. Is this a valid stipulation?

Yes, even if the period exceeds 20 years, for after all, at the end of
the 30 years, A cannot give the property to anybody except B. Moreover,
if the first heir can be prohibited to alienate as long as he lives in order
that the same could be delivered to the second heir, why not for a period
of 30 years? Of course, even if 30 years have not elapsed yet, if the first
heir has already died, the property should be given to B by virtue of the
fideicommissary substitution.

X instituted A as his only heir but prohibited him and all who
may subsequently inherit form him to dispose of the property for a
period of 20 years. X died. If A dies 3 years after X, will As son B
still bound to respect the temporary prohibition?

Yes, for the next 17 years.

Suppose B died after 10 years more, and the property is in


turn inherited by C who is his son, is C bound not to alienate for the
remaining 7 years?

No more, because although a total of 13 years has lapsed, still to


impose the prohibition for the remaining 7 years on C would be beyond
the limits of Article 863, since C is not a first degree relative of A who
originally inherited the property.

[In case there is no fideicommissary substitution, the testator can


prohibit an heir, and all those who may inherit from the latter, for a total
period of 20 years, provided the same prohibition will not go beyond the
limits imposed by Article 863 (does not go beyond one degree from the
heir originally instituted)]

X died in 1952 with a will. In the will, he devised a house and


lot to A as fiduciary heirs and to the latters son, C, as
fideicommissary substitute, declaring that said property shall not be
alienated for 100 years. A died in 1962. May B now validly alienate
the property?

No. 3 of article 867 provides that provisions which contain a


perpetual prohibition to alienate, and even a temporary one, beyond the
limit fixed in Article 863 shall not take effect. There are only two
limitations stated in Article 863. They are: first that the substitution
must not go beyond one degree from the heir originally instituted; and

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second, that both the first heir and the second heir must be living at the
time of the death of the testator. It is evident that in testamentary
dispositions, which contain a perpetual prohibition to alienate, neither
one nor the other can possibly be violated. He only limitation, which is
violated, is that provided in Article 870. The prohibition to alienate is
good for 20 years. Beyond that, it is void. Therefore, in the instant
problem, C must still have to wait for 1972 before he can validly
alienated the property.

What is the effect of the nullity of the fideicommissary


substitution?

It does not prejudice the validity of the institution of the heirs first
designated; the fideicommissary clause shall simply be considered as not
written.

X instituted A as first heir, and B as second heir. If B


predeceases X, will A still inherit?

Yes, as instituted heir, notwithstanding the invalidity of the


fideicommissary substitution. The clause on substitution is simply
considered as not written.

X in his will gave to A the naked ownership of his house and B


the usufruct over the same. Is this allowed?

Yes, because the naked ownership of the property is really distinct


and severable from the use of fruits (the beneficial ownership) thereof.

May the usufruct be given to B and D, a stranger


simultaneously?

Yes, and in such a case, B and C would be co-owners of the


usufruct and of the usufructuary rights.

X disposed of his house in a will giving the naked ownership of


the same to A; and to B and C, successively, the usufruct. This
means that B first gets the usufruct, and after B dies, the usufruct
goes to C. Is this disposition of the usufruct valid?

Yes, provided that B is a first degree relative of C; and both B and


C are alive at the time X dies.

A was given his legitime in the form of a house in the will but
was prohibited to sell the same within a period of 10 years. Can A
sell the house even before the expiration of said period?

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Yes, the prohibition, even if less than 20 years cannot be applied to


the legitime.

What are the purposes of the prohibition of the alienation of


the estate for more than 20 years?

a. To give more impetus to the socialization of ownership;


b. To prevent perpetuation of large holdings.

Summary:

1. Prohibition to alienate applies to voluntary heirs for a


period of not exceeding 20 years. Exception:
Fideicommissary substitution.

2. Prohibition to alienate cannot be imposed on the


legitime. Article 904 provides that No burden,
encumbrance, condition or substitution of any kind
whatsoever can be imposed on legitime. The only
condition that can be validly imposed on a legitime is
the prohibition to partition which shall not exceed 20
years (Article 1083 in relation to Article 494) which
provides that a donor or testator may prohibit partition
for a period which shall not exceed 20 years.
3. Substitution as to legitime It is not only
fideicommissary substitution that cannot be
established with respect to the legitimes of compulsory
heirs; all kinds of substitutions are prohibited in so far
as legitimes are concerned. If the testator provides for a
substitution in relation to a legitme, the substitution is
considered as not imposed.

SECTION 4

CONDITIONAL TESTAMENTARY DISPOSITIONS


AND TESTAMENTARY DISPOSITIONS WITH A TERM

What are kinds of testamentary dispositions?

1. Conditional dispositions (Articles 873, 874, 875, 876, 883 (par. 2),
879, 880, 881 and 884);
2. Dispositions with a term (Articles 878 and 885); and
3. Dispositions with a mode (modal dispositions) (Articles 882 and
883 (par. 1).

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How are conditions classified?

1. By the form of its establishment into express or tacit

Express conditions are those which are imposed explicitly;


tacit conditions are those which are not expressly stated but which
are understood or which can be inferred logically and juridically
from the expression of the will of the testator.

2. By its effect into suspensive and resolutory

Suspensive conditions are those which prevent the effectivity


of the right which they affect until the fulfillment of the condition
imposed; resolutory conditions are those which extinguish on their
fulfillment the right created, which right exists until then, thereby
restoring the things which are the object of the right.

3. By reason of its fulfillment into potestative, casual or mixed

Potestative conditions are those which depend for their


fulfillment on the will of the heir or legatee; casual conditions are
those which depend on chance or an event; and mixed conditions
are those which depend at the same time on the will of the heir
and chance or on the will of the heir and a third person.

4. By reason of the nature of the fact into positive and negative

Positive conditions are those which are fulfilled by giving or


doing something and negative conditions are those which are
fulfilled by abstaining from doing something.

5. By reason of its adaptation to the technical concept of condition


into proper or improper.

Included in the improper conditions are the following:

i. Impossible conditions those which cannot be fulfilled


either because they are contrary to the laws of nature,
to morals or to law.

ii. Ambiguous conditions which because of their


defective statement are obscure and unintelligible.

iii. Captatroy conditions which are a species of those


contrary to morals. They impose on the heir the

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2012 Notes Compilations onWills and Succession 179

condition that he should provide for the testator or a


third person as a condition of being named as heir.

GENERAL PROVISIONS

What is the general rule on the testamentary freedom of the


testator (Article 871)?

GENERAL RULE: The right of the testator to impose conditions,


terms and modes springs from the testamentary freedom. If he has the
right to dispose of his estate mortis causa, then he has the right to make
the dispositions subject to a condition, term or mode.

What is the exception to this testamentary disposition (Article


872)?

EXCEPTION: The legitime passes by strict operation of law,


independently of the testators will. This is the logical consequence of the
principle that the testator cannot impose any charge, condition or
substitution whatsoever upon the legitimes, and should he do so, the
same shall be considered as not written. Therefore, the condition can be
imposed only on the free portion and never on the legitme.

EXCEPTION TO THE EXCEPTION: Article 1083 - The testator can


validly impose a prohibition against the PARTITION of the legitime (not
disposition), for a period not exceeding 20 years. This is the only
prohibition or condition that can affect or burden the legitme.

CONDITIONS

What are the general rules on imposition of conditions?

1. The conditions to affect the disposition must appear in the


language of the will and cannot be presumed. Parol evidence
to prove the existence of oral or other conditions cannot be
allowed. However, if the condition appears in a document
incorporated by reference into the will, it is proper to
consider said condition.

2. Impossible conditions and those contrary to law or good


morals shall be considered as not imposed and shall in no
manner prejudice the heir, even if the testator should
provide otherwise (Article 873).

This rule is also applicable in donations. However, the


rule in civil obligations is different, in that impossible

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conditions shall annul the obligation which depends upon


them. This is so because the condition that is imposed
becomes an integral part of the causa of the obligation and
the elimination of that condition for being impossible or
illegal results in a failure of cause. On the other hand,
testamentary dispositions and donations are both gratuitous
and liberal; thus, the imposition of the condition does not
displace liberality as the basis of the grant.

The rule under Article 873 therefore, departs from the


general rule in obligations where the impossibility of the
condition annuls the obligations dependent on them.

What are the kinds of conditions?

1. Suspensive condition - If an heir is instituted subject to a


suspensive condition, what is acquired is only a hope or
expectancy. It is however a hope or expectancy that is protected by
law. The inheritance shall be placed under administration until the
condition is fulfilled, or it becomes certain that it cannot be
fulfilled.

2. Resolutory condition - If an heir is instituted subject to a


resolutory condition, he acquires a right to the inheritance
immediately upon the testators death. This right, however, is
subject to the threat of extinction. If the condition is fulfilled or
voided, such right is extinguished.

3. Conditions prohibiting marriage.

The prohibition is against first marriage when the heir or


legatee is single. The prohibition is against a subsequent marriage
when it refers to the surviving spouse or to one who is a widow or
widower.

What are the rules on conditions prohibiting marriage?

1. If a first marriage is prohibited the condition is always considered


as not imposed.
2. If a subsequent marriage is prohibited (remarriage):

a. Absolute prohibition when the heir or legatee is forbidden


to marry any person at any time or place or when he or she
is required to remain unmarried or in widowhood.

Effect: Void as it is contrary to morality and public policy.

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Exceptions:

a) If imposed by the deceased spouse or by his


ascendants or descendants condition is valid.
b) If imposed by anyone else condition is
considered as not written.

b. Relative prohibition (to marry or remarry) when it refers


only to a particular persons or group of persons or when it
refers only to a particular period or places.

Effect: Valid, unless it becomes so onerous or burdensome

What are the rules in order that the absolute condition not to
contract a subsequent marriage be valid and enforceable?

1. In order, however, that the absolute condition not to contract a


subsequent marriage imposed by the deceased spouse on the
surviving spouse be valid, it must be expressly stated in the will
and the condition cannot be implied from the context of the will.

2. This absolute prohibition to contract a second marriage is only


applicable to the free portion which is given to the surviving spouse
but cannot apply to the legitime of the widow or widower because
as regards legitime, the law prohibits any condition from being
imposed upon it.

Are the following conditions valid and enforceable?

1) Condition to contract marriage -

This condition is valid as there is no prohibition on the


imposition of a condition to marry, either with reference to a
particular person or not.

2) Usufruct or allowance under certain conditions

The law allows in the second paragraph of Article 874 the


right of usufruct or an allowance or some personal prestation to be
bequeathed to any person during the time he or she should remain
unmarried or in widowhood.

3) Relative prohibition, e.g., Not marry a lawyer valid


4) Condition to renounce a religion not valid
5) Condition to enter into a religious life valid

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6) Condition to leave priesthood/religious life debatable, as the


same can be considered not valid as being contrary to public
policy.

Conditions not covered by the prohibition:

The following conditions are not included in the article and


therefore implicitly allowed:

a. The generic condition imposing marriage


b. The specific condition of marrying a particular person
c. The specific condition of not marrying a determinate person

With regard to the conditions imposing marriage, the same


are valid provided that they are susceptible of performance.
But if they are impossible of performance, they shall be
deemed as an impossible condition and, therefore,
considered as not written. The heir or legatee will then be
deemed instituted without a condition.

What is scriptura captatoria or disposition captatoria?

Article 875 provides: Any disposition made upon the condition


that the heir shall make some provision in his will in favor of the testator
or of any other person shall be void.
Is scriptura captatoria or disposition captatoria allowed?

Scriptura captatoria (or disposition captatoria) is prohibited. Note


that what is declared void here is not merely the condition but the
testamentary disposition itself which contains the condition.

What are the reasons why scriptura captatoria or disposition


captatoria is not allowed?

1. The captatoria converts testamentary grants


into a contractual transaction;
2. It deprives the heir of testamentary freedom;
3. It gives the testator the power to dispose mortis
causa not only for his property but of his heirs.

Note: If the favor to be done by the heir will not be made in a will,
both the disposition and the condition should be considered valid.

What are potestative, casual and mixed conditions?

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1. Potestative condition one that depends solely on the


will of the heir
2. Casual condition one that depends on the will of a
third person or on chance
3. Mixed one that depends partly on the will of the heir
and partly on the will of a third person or chance

State the rules.

A. Potestative (Article 876)

a. Positive:

1. General rule must be fulfilled as soon as the


heir learns of the testators death
2. Exceptions

a. If the condition was already complied with


at the time the heir learns of the testators
death; and

b. If the condition is of such nature that it


cannot be fulfilled again

3. Constructive compliance (Article 883 par 2)


condition is deemed fulfilled.

b. Negative:

The heir must give security to guarantee (caucion


muciana) the return of the value of the property,
fruits, and interests, in case of contravention.

B. Casual or mixed (Article 877)

a. General rule may be fulfilled at any time, before or


after the testators death, unless the testator
provides otherwise.

b. Qualifications if already fulfilled at the time of the


execution of the will:

(1) If the testator was unaware of the fact of


fulfillment the condition is deemed
fulfilled.

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(2) If the testator was aware of the fact of


fulfillment:

i. If can no longer be fulfilled again


condition is deemed fulfilled.

ii. If it can be fulfilled again the


condition must be fulfilled again

State the rules on constructive compliance (Article 883, par


2).

1. If casual not applicable;


2. If mixed:
a. If dependent partly on chance not applicable
b. If dependent partly on the will of a third party:
c. If third party is an interested party applicable
d. If third party is not an interested party not applicable.

Pending the fulfillment of the suspensive condition, what


must be done with the property? (Article 880 and 881)

Between the time of the testators death and the time of fulfillment
of the suspensive condition or the certainty of its non-occurrence, the
property must be place under administration. The property shall be in
the executors or administrators custody until the heir furnishes the
caucion muciana. The procedural rules governing the appointment of
administrator is governed by Rules 77-90 of the Rules of Court.

State the effects of the fulfillment or non-fulfillment of the


suspensive condition.

1. If the condition happens the property will be turned over to the


instituted heir;
2. If it becomes certain that the condition will not happen the
property will be turned over to a secondary heir, and if there is
none, to the intestate heirs.

Note that this article is not applicable to institutions with a term


despite the wording of the article. Institution with a term is governed by
Article 885, par. 2. To do otherwise would result to an irreconcilable
conflict with that article, which mandates that before the arrival of the
term, the property should be given to the legal heirs.

TERMS

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What are the different terms?

1. Suspensive term (Article 878)

A suspensive term is one that merely suspends the


demandability of a right. It is sure to happen. A suspensive
condition, on the other hand suspends, not merely the
demandability, but even the acquisition itself of the right.

The heirs rights vests upon the testators death. Therefore,


should the heir die before the arrival of the suspensive term, he
merely transmits his rights who can demand the property when
the term arrives. The rule in this article is similar to a
fideicommissary substitution.

State the rules:

1. The right of the instituted heir is suspended until the


arrival of the term.
2. The instituted heir acquires his rights after the
testators death but even before the arrival of the
term.
3. Should the instituted die before the arrival of the
term. He transmits his rights to his own heirs.
4. Before the arrival of the suspensive term, the
property should be delivered to the intestate heirs. A
caucion muciana has to be posted by the intestate
heirs. The intestate heirs here are merely considered
a usufructuary because they have the obligation of
preserving the property until the arrival of the term
when they must turnover the property to the second
heir

Note: If the heir is instituted to a suspensive condition and he dies


after the testator but before the fulfillment of the condition, he does not
transmit his rights to his own heirs, for he never inherited.

2. Resolutory term

Rules:

1. The rights of the instituted heir are immediately


demandable, although they are extinguished upon the
arrival of the date or time designated by the testator.
2. Therefore, before the arrival of the term, the property should
be delivered to the instituted heir.

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3. When the term arrives, he must give it to the intestate heirs.


4. No caucion muciana is required.

MODES (Article 882)

What is a mode?

A mode (institucion sub modo) is an obligation imposed upon the


heir, without suspending (unlike in a conditional disposition), the
effectivity of the institution.

State the rules:

A mode must be clearly imposed as an obligation in order to be


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

Requisites:

a. The testator states the object of the institution


b. The testator states the purpose or application of the property
left
c. The testator states the charge impose by him upon the heir.
(Johnny Rabadilla vs. CA, GR No. 113725, June 29, 2000)
d. Caucion muciana should be posted by the instituted heir.

Distinguish between modal institution and conditional


testamentary disposition.

1. A mode imposes an obligation upon the heir or legatee but it does


not affect the efficacy of his rights to the succession; while in a
conditional testamentary disposition, the condition must happen
or be fulfilled in order for the heir to be entitled to succeed to the
testator.

2. The condition suspends but does not obligate; while the mode
obligates but does not suspend. To some extent, it is similar to a
resolutory condition. (Johnny Rabadilla vs. CA, ibid.)

Principles:

When in doubt as to whether there is a condition or merely a


mode, consider, consider them as a mode.
When in doubt as to whether there is a mode or merely a
suggestion, consider same only as a suggestion.

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CAUCION MUCIANA

What is caucion muciana?

It is a security to be put up to protect the rights of the heirs who


would succeed to the property, in case the condition, term or mode is
violated.

What are the instances where caucion muciana is needed?

1. Suspensive condition (Article 885)


2. Negative potestative condition (Article 879)
3. Modal institution (Article 882, par. 2)

SUBSTANTIAL COMPLIANCE
What are the rules in substantial compliance?

1. If the instituted heir, without his fault cannot comply with the
condition exactly in the manner imposed by the testator, it shall be
complied with in a manner most analogous to and in conformity
with his wishes.
2. If the person interested in the condition (like the intestate heir)
should prevent its fulfillment, the condition shall be deemed to
have been complied with, provided that the instituted heir is
without fault.
3. When applicable:

1) If casual not applicable;


2) If mixed:

a. If dependent partly on chance not


applicable
b. If dependent partly on the will of a third
party:

(a) If third party is an interested


party applicable
(b) If third party is not an
interested party not
applicable.

PLACING OF ESTATE UNDER ADMINISTRATION

What are the instances when the estate is placed under


administration?

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1. When the heir is instituted under a suspensive condition.


2. Where the heir instituted is subject to a negative potestative
condition and he does not give a security when demanded by the
heirs entitled to the same.

SECTION 5. LEGITIME

What is legitime?

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 (Article 886).

The legitime consists of a part or fraction of the entirety of the


hereditary estate, and not a specific or determinate property.

From the definition of legitime in Article 886, it is patent that the


portion of the hereditary estate called legitime is to a certain extent
withdrawn from the patrimony if the testator thus preventing him from
disposing it by gratuitous title. Of course, he can still enjoy the same
because it is still his. It is only upon his death that his heirs become
entitled thereto (Article 777).

The legitimes are translated into properties only upon the delivery
if the properties to the heirs, which is usually done after all claims
against the estate ahs been settled.

A testator who has compulsory or forced heirs cannot impair the


legitimes of the latter (Article 842). Accordingly, if he has no forced or
compulsory heirs, he may dispose of all his estate or any part of it in
favor of any persons having capacity to succeed (Ibid.).

Can the testator deprive his compulsory heirs of their


legitime?

No, the testator cannot deprive his compulsory heirs of their


legitme, except in cases expressly specified by law (Article 904).

Does the testator have the power to impose burdens on


legitime? Why?

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No, the testator cannot impose upon the legitime any burden,
encumbrance, condition or substitution of any kind whatsoever (Article
904). This is so because of the principle that the legitime passes by strict
operation of law.

Can the owner dispose of the legitime by onerous title?

Yes because in such a case, the alienated property is substituted


by an equivalent. However, his power of disposal by gratuitous title,
whether inter vivos or mortis causa is limited.

What is the instance in which the law allows the testator to


deprive a compulsory heir of his legitime?

The only instance in which the law allows the testator to deprive
the compulsory heirs of their legitimes is disinheritance (Articles 915-
923), the grounds of which are set forth in Articles 919-921.

Are there instances in which the law grants the testator some
power over the legitime?

Yes, the following laws grant the testator some power over the
legitime:

1. Article 1080, par. 2 partition inter vivos of a will.

A parent who, in the interest of his heirs or her family,


desires to keep any agricultural, industrial, or
manufacturing enterprise intact, may avail himself of the
right granted him in this article, by or ordering that the
legitime of the other children to whom the property is not
assigned, be paid in cash.
2. Article 1083, par 1 Indivision for 20 years.

Every co-heir has a right to demand the division of the


estate unless the testator should have expressly forbidden its
partition, in which case the period of indivision shall not
exceed twenty years as provided in Article 494. This power of
the testator to prohibit applies to legitime.

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Are there restrictions on the legitime imposed by law?

Yes, the following are restrictions imposed by law on legitime:

1. Article 159 of the Family Code family home shall continue for 10
years.

The family home shall continue despite the death of one or


both spouses or of the unmarried head of the family for a period of
10 years or for as long as there is a minor beneficiary, and the
heirs cannot partition the same unless the court finds compelling
reasons therefore. This rule shall apply regardless of whoever owns
the property or constituted the family home.
2. The reserva troncal (to be discussed separately).

What are the possible ways of disturbing the legitimes of


compulsory heirs?

The legitime of a compulsory heir may be disturbed in any of the


following way:

1. By preterition of a compulsory heir in the direct line (Article 854);


2. By not giving the full legitime of the heir to which he is entitled
(Article 906);
3. By imperfect or defective disinheritance of the compulsory heir
(Article 918). (The disinheritance is imperfect when it does not
follow the requisites prescribed by law);

Under the above circumstances, the compulsory heir does


not lose his legitime although there is disturbance.

4. By validly disinheriting the compulsory heir (Article 915). This is a


case of deprivation of legitme which is expressly allowed (Article
904).

What are the factors that determine the amount of legitime of


an heir?

The amount of legitme of an heir is determined by several factors,


particularly:

1. The amount of the property;


2. The number of compulsory;

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3. The relations of such heirs to the testator; and


4. The percentage of shares assigned to them by law.

What are the kinds of heirs?

1. Compulsory heirs- they are those for whom the law reserves
a portion of a decedents estate by way of legitime.
2. Voluntary, testamentary, or testate heirs- they are so called
to the succession by virtue of the expressed will of the
testator;
3. Legal or intestate heirs- They are those called to the
succession by operation of law in the absence of voluntary
heirs designated by the testator.

Who are compulsory heirs? (Article 887)

(2) Legitimate children and descendants, with respect to their


legitimate parents and ascendants;
(3) In default of the foregoing, legitimate parents and ascendants, with
respect to their legitimate children and descendants;
(4) The widow or widower;
(5) [Acknowledged natural children, and natural children by legal
fiction];
(6) [Other illegitimate children referred to in Article 287]. 62

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 in the manner and to the extent established by
this Code.

Amendment to Article 887: The Family Code which became


effective on August 3, 1988, classified all kinds of illegitimate children
(natural and spurious) into one general group illegitimate children. The
distinction between the different kinds of illegitimate children under the
Civil Code had been abolished (Article 165 FC). The legitimes of
illegitimate children have also been fixed by the Family Code into one-
half (1/2) of the legitime of a legitimate child (Article 176 FC).

Paragraphs 4 and 5 [bracketed] are deemed deleted by Article 165, EO No.


62

209 {Family Code}, and to read illegitimate children.

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Thus, under the law now, there are only four (4) groups of
compulsory heirs:

1. First, legitimate children and descendants, with respect to their


legitimate parents and ascendants;
2. Second, in default of the foregoing, the legitimate parents and
ascendants, with respect to their legitimate children and
descendants;
3. Third, the widow or widower (Article 887);
4. Fourth, the illegitimate children (Article 165 FC)

What are the classes of compulsory heirs?

1. The primary compulsory heirs they are the legitimate children


and/or descendants. They are preferred over, and exclude, the
secondary compulsory heirs.
2. The secondary compulsory heirs they are the legitimate parents
and/or ascendants; illegitimate parents. They receive legitime only
in default of the primary compulsory heirs.
3. The concurring compulsory heirs they are the surviving spouse,
illegitimate children and/or descendants. They succeed as
compulsory heirs together with the primary or secondary heirs,
except only that illegitimate children/descendants exclude
illegitimate parents.

What does the term legitimate child or legitimate children


and legitimate parents include?

1. A legally adopted child pursuant to Art. 189 FC; 63


2. Legitimated children;
3. In proper cases, legitimate descendants other than legitimate
children;
4. The term legitimate parents includes, in proper cases, legitimate
ascendants other than parents.

What is the condition before illegitimate children could


become compulsory heirs?

There must be recognition of the illegitimate relationship. Articles


172 and 175 of the Family Code provide the rules on establishment of
filiation. 64

63Section 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) left a will,
the law on testamentary succession govern (R.A. No. 8552).

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What are the different computations for the legitimes of each


compulsory heir?

LC alone

of the estate.
LC and SS

LC: of the estate;


SS: a share equivalent to 1 child.

1LC and SS

LC: of the estate;


SS: of the estate.

LC and IC

LC: of the estate;


IC: share of 1LC.

LC, IC, and SS

LC: of the estate;


IC: of share of 1LC;
SS: a share equal to 1LC (the share of SS is preferred over
those of the IC which shall be reduced if necessary).

1LC, IC and SS

LC: of the estate


IC: of share of 1LC;

64Article 172. The filiation of legitimate children is established by any of the


following:
1. The record of birth appearing in the civil register or final judgment;
2. An admission of legitimate filiation in a public instrument or a private
handwritten instrument and signed by the parent concerned;
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
1. The open and continuous possession if the status of a legitimate child; or
2. Any other means allowed by the Rules of Court and special laws (Family Code).
Article 175. Illegitimate children may establish their illegitimate filiation in the
same way and the same evidence as legitimate children.
The action must be brought within the same period specified in Article 173,
except when the action is based on the second paragraph of Article 172, in which case
the action may be brought during the lifetime of the alleged parent (Family Code).

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SS: (preferred) of the estate.

LP alone

of the estate.

LP and IC
LP: of the estate;
IC: of the estate.

LP and SS

LP: of the estate;


SS: of the estate.

LP, IC and SS

LP: of the estate;


IC: of the estate;
SS: 1/8 of the estate.

SS alone

of the estate (1/3 of the estate if marriage is in articulo


mortis; of the estate if living together for 5 years).

SS and IC

SS: 1/3 of the estate;


IC: 1/3 of the estate.

SS and IP

SS: of the estate;


IP: of the estate.

IC alone

of the estate.

IP alone

of the estate.

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LEGITIME OF SURVIVNG SPOUSE IN TESTAMENTARY


SUCCESSION (TESTACY)

Concurring Heirs Legitime Free Portion Article


Spouse alone ; 1/3; Art. 900
Spouse Art. 892
1 leg. Child
Spouse Same share of 1 leg. Remainder Art. 898
child
2 or more leg.
children
Spouse Same share of 1 leg. Remainder Art. 897
child
Leg. Children Art. 895

Illeg. Children Art.176,
Remainder not to FC. 65
exceed free portion
Spouse Arts.889
& 893
Leg. Parents
Spouse Art. 903
Illeg. Parents
Spouse 1/3 1/3 Art. 894
Illeg. Children 1/3
Spouse 1/8 1/8 Art. 899
{Cf. Art
Leg. parents
1000}
Illeg. Children
Spouse Art. 900
Brothers and sisters, None 66

nephews and nieces

LEGITIMES OF CHILDREN/PARENTS AS SOLE HEIRS IN


TESTAMENTARY SUCCESSION (TESTACY)

65 Applies if free portion is sufficient, otherwise, free portion will be divided

equally. (Unless otherwise specified by the testator, sharing in the available free portion
is equal [Article 846].
66Reason:: They are not compulsory heirs. Hence, they are not entitled to

legitime. They can become heirs only in intestat4e succession (Article 1001 and 994) or
if designated as devisees or legatees, i.e. as voluntary heirs.

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Heirs Share Free Article


Portion
Legitimate Alone Article 888
child/children
Illegitimate Alone Article 901
child/children
Legitimate parents Alone Article 889
Illegitimate parents Alone Article 903

LEGITIMES OF ILLEGITIMATE CHILDREN/LEGITIMATE PARENTS


OR CHILDREN IN TESTAMENTARY SUCCESSION (TESTACY)

Heirs Share Free Portion Article


Legitimate parents Arts. 888
& 896
Illegitimate
children
Legitimate children Remainder, if Arts.
of share of 1 leg. child any 176(FC)
Illegitimate
Children
Illegitimate Art. 903
children None (being excluded)
Illegitimate parents

Article 887 mentions of children and descendants and


legitimate parents and ascendants; does it mean that they all
automatically succeed to the inheritance?

No, in their category as compulsory heirs, the rule is that the


nearer excludes the more remote, except in cases where the right of
representation is proper. This is known as the rule of proximity.

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May a compulsory heir renounce or compromise his future


legitime? What are its consequences?

No, every renunciation or compromise as regards future legitime


between the person owing it and his compulsory heirs is void, and the
latter may claim the same upon the death of the former (Article 905).

What are the consequences in case there is renunciation or


compromise?

a. The compulsory heir may claim his legitime upon the death
of the person owing it;
b. But the compulsory heir must bring to collation whatever he
may have received by virtue of the renunciation or
compromise (Article 905). That is, any property, which the
compulsory heir may have gratuitously received from his
predecessor by virtue of the renunciation or compromise, will
be considered an advance of his legitime and must be duly
credited.

What is the reason of the foregoing rule?

a. Before the predecessors death, the heirs right is simply


inchoate which does not vest in the heir until the moment of
the death of the testator. (Article 777)
b. Such renunciation or compromise contravenes the policy of
the law which seeks to secure to the testator the greatest
possible freedom in disposing of his property by will (Article
783), and to prevent the utilization of the will form as a
vehicle fro imposing contractual obligations on the testator.
c. A future legitime involves future inheritance, and under
Article 1347, par. 2, no contract may be entered into upon
future inheritance except in cases expressly authorized by
law.

As worded, the article refers to transactions of compromise or


renunciation between a prospective compulsory heir and the
predecessor. Is a transaction between the prospective compulsory
heir and another prospective compulsory heir, or between a
prospective compulsory heir and a stranger prohibited?

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Yes, pursuant to Article 1347, which provides that No contract


may be entered into upon future inheritance except in cases expressly
authorized by law?

What is the scope of prohibition?


1. Any renunciation of future legitimes, whether for a valuable
consideration or not, made unilaterally or otherwise;
2. The waiver of the right to ask for the reduction of an officious
donation either by the heirs express declaration or by consenting
to the donation (Article 772); and
3. Article 1347. 67

What are the instances where the prohibition is not


applicable?

1. Renunciations or compromises made after the death of the


testator, for in such a case, the right to legitime being already an
acquired right and no longer an expectancy;
2. Donations or remissions made by the testator to the compulsory
heirs as advances of the legitime. Their acceptance does not
amount to renunciation of future legitime

The rule is that anything that a compulsory heir receives by


gratuitous title from the predecessor is considered an advance on
the legitme and is deducted there from. Are there exceptions to this
rule?

Yes, they are:

1. Article 1062 If the predecessor gave the compulsory heir a


donation inter vivos and provided that it was not to be charged
against the legitime;
2. Article 1063 Testamentary dispositions made by the predecessor
to the compulsory heir, unless the testator provides that it should
be considered part of the legitime.

67Article 1347. All things which are not outside the commerce of men, including

future things, may be the object of a contract. All rights which are not intransmissible
may also be the object of contracts.
No contract may be entered into upon future inheritance except in cases
expressly authorized by law.

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What is the remedy of the compulsory heir to whom the


testator has left any title less than the legitime belonging to him?

He may demand that the same be fully satisfied (Article 906).

What is meant by any title referred to in the article?

It applies to transmissions by gratuitous title. It also includes


donation inter vivos, which are considered advances on the legitime.

What is the remedy of the compulsory heir if there are


testamentary dispositions that exceed the disposable portion?

The compulsory heir may petition that the same be reduced to the
extent that the legitmes may have been impaired, in so far as they may
be inofficious or excessive (Article 907).

Distinguish completion of legitime from preterition.

1. In case of preterition, ignorance or faculty memory on the part of


the testator can be presumed but such presumption does not lie in
case the compulsory heir has been given something.
2. In the former, the compulsory heir is not totally deprived of his
legitime. Thus, the compulsory heir does not lose his legitime but
on the other hand, he cannot claim more than his legitime. He has
therefore a right to claim what is lacking, that is, the completion of
the portion that by law belongs to him. However, in the case of
preterition, the compulsory heir who was totally omitted has the
right to demand his legitime and also demand that the institution
of heirs be annulled except the devises and legacies.

How is legitime determined?

The value of the property left at the death of the testator shall be
considered, deducting all debts and charges, which shall not include
those imposed in the will. To the net value of the hereditary estate, shall
be deducted the value of all donations by the testator that are subject to
collation at the time he made them (Article 908).

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FORMULA: Property left debts and charges + value of


collationable donations = net hereditary estate.

What are the seven distinct steps in the distribution of the


hereditary estate in testamentary succession?

1. The determination of the value of the estate at the time of the


testators death;
2. The determination of all deductible debts and charges which are
chargeable to the testators estate;
3. The determination of the net hereditary estate by deducting all of
the debts and charges from the value of the estate;
4. The collation or addition of the value of all donations inter vivos to
the net value of the estate;
5. The determination of the amount of the legitime from the total thus
found in accordance with the rules established in Article 888 to
Article 903 of the Civil Code;
6. Imputation of the value of the donation inter vivos against the
legitime of the donee, if made to a compulsory heir, or against the
free portion, if made to a stranger; and finally,
7. Distribution of the net estate in accordance with the will of the
testator.

What are the steps/ manner of computing the hereditary


estate?

3 steps:

1. Inventory of all existing assets

(1) This will involve an appraisal / valuation of these existing


assets at the time of the decedents death.
(2) These assets include only those property and obligations
that survive the decedent; i.e., those, which are not
extinguished by his death.
(3) The value determined by this inventory will constitute the
gross assets.

2. Deducting unpaid debts and charges

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(1) All unpaid obligations of the decedent should be deducted


from the gross assets.
(2) Only those obligations with monetary value, which are not
extinguished by death, are considered here. Thus, those
obligations, which are purely persona; are not taken into
account.
(3) The difference between the gross assets and th unpaid
obligations will be available assets.

3. Adding the value of donations inter vivos

(1) To the available assets should be added all the inter vivos
donations made by the decedent.
(2) The donations inter vivos shall be valued as of the time they
were respectively made. Any increase or decrease in value
from the time they were made to the time of the decedents
death shall be for the donees account, since donation
transfers ownership to the donee.
(3) The sum of the available assets and all donations inter vivos
is the net hereditary estate.
NOTES:

Collation is not necessary when there are no


compulsory heirs for the reason that there is no
legitime to be determined.

The value of the donations shall be determined as of


the time they were made and not at the time of the
death of the testator.

The collation of the donation does not mean that the


properties donated shall be brought back to the
estate but only the value thereof, determined as of
the time they were made, should be added to the net
value of the estate to determine the whole estate of
the testator.

What is the rule as to donations inter vivos to compulsory


heirs?

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They shall be imputed to his legitime; i.e., considered as an


advance to his legitime (Article 909, par. 1).

Is there an exception to this rule?


Yes, this rule of imputation to the legitime will not apply of the
donor provided otherwise (Article 1062), in which case the donation will
be imputed to the disposable portion of the estate.

What is the rule as to donations inter vivos to strangers?

1. A stranger is anyone who does not succeed as a compulsory heir;


2. Donations inter vivos to strangers are necessary imputed to that
part of the estate which the testator could have disposed by his
last will (the disposable portion) (Article 909, par. 2).
3. In so far as they may be inofficious or may exceed the disposable
portion, they shall be reduced (Article 909, par. 3).

Summary of donations:

a. Donation to a child, whether legitimate or illegitimate


General rule charged to legitime

Exceptions

1. If the donee who is a child without descendant predecease


the testator, is incapacitated or is disinherited;
2. In case the donee-child repudiates the inheritance;
3. In case the donor-testator has expressly provided that
there shall be no collation unless it impairs the legitime.

b. Donation to parents or ascendants (Article 1062) 68

68NOTE: The donations made to legitimate parents or ascendants or to the


parents of illegitimate children should only be charged to their legitime when they are
compulsory heirs, since they are not primary compulsory heirs but only secondary and,
therefore, may not always be compulsory heirs if there are present the primary
compulsory heirs.

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General rule charged to legitime


Exceptions

1. When the testator provides otherwise;


2. When they are not compulsory heirs.

c. Donation to spouse

General rule not allowed.

Exception gifts of moderate value; treat the same as a


donation to a compulsory heir.

d. Donation to strangers charged to free portion.

What is the order of priorities to be observed in the reduction


of the testators gratuitous dispositions?

After the legitime has been determined in accordance with Articles


908 to 910, the reduction shall be made as follows:

1. Donations shall be respected as long as the legitime can be


covered, reducing or annulling, if necessary, the devises or legacies
made in the will;
2. The reduction of the devises or legacies shall be pro rata, without
any distinction whatever;
3. If the testator has directed that a certain devise or legacy be paid
in preference to others, it shall not suffer any reduction until the
latter have been applied in full to the payment of the legitime;
4. If the devise or legacy consists of a usufruct or life annuity, whose
value may be considered greater than that of the disposable
portion, the compulsory heirs may choose between complying with
the testamentary provision and delivering to the devisee or legatee
the part of the inheritance of which the testator could freely
dispose (Article 911).

What are methods [rules] of reduction?

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1. First, reduce pro rata the non-preferred legacies and (Art. 911 [2]),
and the testamentary dispositions (Art. 907). Among these legacies,
devises, and testamentary dispositions there is no preference;
2. Second, reduce pro rata the preferred legacies and devises (Art.
911, last par.);
3. Third, reduce the donations inter vivos according to the inverse
order of their dates (i.e., the oldest is the most preferred) (Art. 773).
If the donations were made with the same date, they shall be
reduced pro rata.

Note: These reductions shall be to the extent required to complete


the legitimes, even if in the process the disposition is reduced to nothing.

How is Article 911 reconciled with Article 950?

Article 911 provides that if the devise or legacy must be reduced


the reduction shall be pro rata without distinction whatever; whereas
Article 950 provides an order of preference in the reduction of the devises
and legacies. Although seemingly contradictory, these articles can be
reconciled by applying Article 911 to those cases where the legacy or
devise must be reduced (1) because it is necessary to preserve the
legitime and (2) when although the legitime is unimpaired, reduction is
necessary because there are donations and the donations and the
legacies together exceed the free portion. While Article 950 will be applied
when the reduction is between the legacies themselves alone because
there are no compulsory neither heirs; nor donation inter vivos, or there
being compulsory heirs their legitimes are unimpaired and there are no
donations.

What is the order of payment from the hereditary estate?

1. The legitimes shall first be paid;


2. Then the donations inter vivos;
3. Next, the preferred devises and legacies; and
4. Lastly, the other devises and legacies and all other testamentary
dispositions to take effect mortis causa, shall be reduced pro rata,
without distinction, in case the free portion is not sufficient.

The value of the testators estate at the time of his death is


P40, 000. However, the claims against his estate based on
obligations incurred by him during his lifetime amounted to P10,

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2012 Notes Compilations onWills and Succession 205

000. During his lifetime, he had also made two donations P15, 000
to a legitmate child A, and another P15, 000 to a friend F. In his
will, he instituted his two legitimate children, A and B, as his heirs.
How shall his estate be distributed?

1. P40, 000 P10, 000 = P30, 000


2. P30, 000 + P15, 000 + P15, 000 = P60, 000
3. Determine the legitime of A and B = P15, 000 each
4. Determine the free disposable portion = P30, 000
5. Give the legitimes: B = P15, 000; A = P15, 000 [the donation
to A of P15, 000 shall be imputed to his legitime]
6. Give P15, 000 donation to F from the free disposable portion
7. Balance of the hereditary estate is P15, 000, which shall be
divided equally to A, and B; thus, each shall get P22, 500.00
each. [P15, 000 + 7, 500]

Testator X dies with 2 legitimate children A and B; and one


acknowledged child C. While alive, X made a donation of P10, 000 to
A; P10, 000 to C and another P10, 000 to a total stranger. His gross
estate is P30, 000 and his debts and liabilities are P10, 000. Divide
the estate of X.

1. P30, 000 P10, 000 = P20, 000


2. P20, 000 + P10, 000 + P10, 000 + P10, 000 (donations) = P50,
000.
3. Determine the legitimes: P25, 000 to A and B or P12, 500 each.
4. Free disposable is P25, 000.
5. Get Cs legitime from free disposal: P6, 250.
6. Balance of free disposal P18, 750.
7. Donation of P10, 000 made to A shall be imputable to his
legitime of P12, 500.
8. The donation of P10, 000 made to C shall be imputable to his
legitime of P6, 250, there is therefore an excess of P3, 750
which shall be imputed to the free portion.
9. The donation of P10, 000 made to d shall be charged to the free
portion.
10. The free portion amounts to P18, 750 and the donations
imputed to it are the excess of P3, 750 in the donation to c and
the whole donation of P10, 000 to D or a total of P13, 750.

Testator X dies leaving his legitimate children A and B,


surviving spouse S and one acknowledged natural child C. While
alive X donated P5, 000 to A in 1995, another P5, 000 to C in 1998

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and P10, 000 to D a very good friend in 1993. His gross estate at the
time of his death if P20, 000. His debts and liabilities amount to
P15, 000. Divide the estate:

1. P20, 000 P15, 000 = P5, 000


2. P5, 000 + P5, 000 + P5, 000 + P10, 000 = P25, 000
3. P12, 500 is the legitime of A and B or P6, 250 each.
4. Free portion is P12, 500 legitime of S P6, 250 and legitime of C
P3, 125.
5. Free disposal [balance] P3, 125.
6. Donation of P5, 000 to A shall be imputed to his legitime of P6, 250
7. Donation to C of P5, 000 shall be imputed to his legitime of P3,
125 and therefore exceeds the same by P1, 875 which together
with the P10, 000 donation to D or a total of P11, 875 shall be
charged to the free portion which amounts only to P3, 125 and
should be reduced.
8. The reduction shall be based on the dates of the donation in the
inverse order of dates.
9. Since the donation to D is earlier than that of C, the whole
donation of C, which is P1, 875 will be revoked and then the
donation of D will furthermore be reduced by P6, 875. Hence C will
return to the estate P1, 875 and D will return 6, 875.

If the devise has to be reduced because it is inofficious and the


thing given, as devise is indivisible, what are the rules?
1. If the extent of reduction is less than of the value of the thing
it should be given to the devisee.
2. If extent of reduction is or more of the value of the thing it
should be given to the compulsory heir.
3. In ether case, there should be pecuniary reimbursement to the
party who did not get his physical portion of the thing devised
(Article 912).

If neither party elects to exercise this right, how should the


thing devised be disposed of?

1. Any other heir or devisee, who elects to do so, may acquire the
thing and pay the parties (the compulsory heir and the devisee in
question) their respective shares in money.
2. If no heir or devise elects to acquire it, it shall be sold at a public
auction and the net proceeds accordingly divided between the
parties concerned (Article 913).

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Summary of the limitations of the power of the testator to


dispose of as he may deem fit the free portion:

1. The free portion must be absolutely free portion i.e., the remainder
of the estate after all legitimes have been deducted.
2. The absolutely free portion, which can be freely disposed of, does
not include those properties governed by special laws such as the
friar lands.
3. The person to whom it is bequeathed must have the capacity to
succeed the testator.

RESERVA TRONCAL (Article 891)

What is the doctrine of reserva troncal?

It is a system of reserve by virtue of which an ascendant who


inherits from his descendant any property which the latter may have
acquired by gratuitous title from another ascendant, or a brother or
sister, is obliged to reserve 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 the said property came.

Illustration and diagram:


Reservatorio

O (Origin) R (Reservista)

P (Prepositus)

P (prepositus) inherits a piece of land from his father, O (origin).


Subsequently, P dies intestate, single and without issue, and the land is
in turn inherited by his mother R (reservista). R is now required to
reserve the property in favor of Ps paternal relatives within the third
degree (rerservatorios).

What are the three transmissions are involved in a reserva


troncal?

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1. First transmission by gratuitous title from an ascendant or


brother or sister to the decedent;
2. A posterior transmission by operation of law, from the
decedent in favor of another ascendant belonging to another
[Operation of law: 1) compulsory succession; 2) intestate
succession. Cannot be: 1) testate succession, 2) donation];
3. A third transmission of the same property from the reservoir
or reservista to the reservatorio.

What are the purposes of reserve troncal?

1. To prevent certain properties from passing from one family to the


other or from one trunk or from one line to the other through
accident of lack of heir;
2. To maintain as absolute as possible, with respect to the property to
which it refers, a separation between the paternal and maternal
line so that property of one line may not pass to the other or
through them to strangers.

Who are the persons involved in a reserva troncal?


1. Origin or mediate source - the ascendant, brother or sister,
known as the origin, from whom the descendant-propositus
acquired the property by gratuitous title.
2. Reservista - the ascendant acquired the property by
operation of law;
3. Prepositus - the descendant who acquired the property by
gratuitous title from an ascendant;
4. Reservatorio - the relatives of the propositus, who are within
the third degree and who belong to the line from which the
property came and for whose benefit the reservation is
constituted.

RESERVISTA

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ASCENDANT ASCENDANT (RECEIVES BY LAW)

3RD DEGREE (RESERVATARIOS)

RELATIVES DESCENDANT (PREPOSITUS) LEG. RELATIVES


1. RECEIVES PROPERTY BY GRATUITOUS TITLE
2. DIES WITHOUT ISSUE

What are the requisites in reserva troncal?

1. The property was acquired by a person from an ascendant or


from a brother or sister by gratuitous title;
2. Property was inherited by operation of law by an ascendant
from a descendant upon the death of the latter;
3. Descendant should have died without any legitimate issue in
the direct descending line who could inherit from him;
4. There must be relatives of the descendant who are within the
third degree and who belong to the line from which the
property came.

Notes:

All relationship must be legitimate. In effect, this requirement


punishes legitimate relations because if the relation is illegitimate,
there is no obligation to reserve. However, it does not necessarily
mean that all four are related to each other, for the ascendant-
reservista may not be related at all to the ascendant from where
the property originated. It only means that the parties are related
to the prepositus legitimately. The point of reference is the
prepositus.

The term descendant should read person, because if the grantor is


a brother or sister, the one acquiring obviously is not a
descendant.

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That the descendant died without legitimate issue, because only


legitimate descendants will prevent the property from being
inherited by the legitimate ascending line by operation of law.

Transmission by operation of law is limited to succession, either to


the legitime or by intestacy.

What is the meaning of the term dying without issue?

The issue of a person consists of his children, grandchildren, and


all other lineal descendants. It means dying without issue (descendants)
in the lifetime or at the death of the party and not an indefinite failure of
issue.

Can there be reserve if the prepositus is an adopted child?

Under the old rule: No, because adoption only creates a personal
relationship between the adopter and the adopted; hence, there are no
relatives of the adopted or adopter by adoption. For the same reason, an
adopted child cannot claim the benefit of reserva troncal, and therefore
cannot be a reserve through adoption.

Under the new rule: Yes. The adopted may represent the adopter in
the inheritance of the latters parents (Section 17, R.A. No. 8552 [1988]).
69

Suppose that there are several persons who can qualify as


reservatorios, to whom shall the reservable property be
adjudicated?

In such a case, the rules of intestate succession shall apply. This is


because Article 891 merely determines the group of relatives to whom the
reservable property should be returned; it is silent with regard to the
individual right of such relatives to the property. Thus, the following
principles of intestate succession still apply:

1. The principle of preference relatives of the prepositus in the direct


ascending line shall exclude his relatives in the collateral line;
grandparents are preferred over brothers and sisters. [Relatives in
the direct ascending shall exclude relatives in the collateral lines.];

69Section 17.Legitimacy. The adoptee shall be considered the legitimate son/daughter


of the adopter(s) for all intents and purposes and as such is entitled to all the rights and
obligations provided by law to legitimate sons/daughters born to them without
discrimination of any kind. x x x x )R.A. No. 8552: Domestic Adoption Act of 1988).

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2. If all claimants belong to the same line, the principle of proximity


shall apply relatives of the prepositus nearest in degree shall
exclude the more remote ones;
3. Principle of representation provided that the representatives are
relatives of the prepositus within the third degree;
4. If all of the claimants are brothers and sisters of the prepositus and
some of the half blood and others of the full blood, the principle of
double share for the full blood collaterals shall apply those of the
full blood shall be entitled to double the share of those of the half
blood.

What is the meaning of line in reserva troncal?

The term line is not used in the juridico-geometrical sense of


direct or collateral lines, but in the familiar sense of paternal and
maternal lines. Exception: When the origin is a full-blood brother or
sister, who comes from the same common parents, the line would be the
same.

Can money be reserved?

Yes. In money, the property is the purchasing power and not the
bills. As such, the value of the money can be reserved.

The origin/mediate source:


He is either an ascendant or a brother or sister of the prepositus:

1. If an ascendant he may be any degree of ascent;


2. If a brother/sister there are 2 schools of thought:

a. If the origin is a brother/sister, the relationship must be of


the half blood, because otherwise the property would not
change lines in passing to a common ascendant of the
prepositus and the brother. There should, in other words be
no reserve if the fraternal relationship is of the full blood for
them it would not be possible to identify the line of origin-
whether paternal or maternal (JBL Reyes);
b. It does not matter whether the fraternal relationship is of the
full- or the half-blood. In either case a reseva may arise.
Since the law makes no distinction, we should not make one
(Manresa).

The prepositus or propositus:

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He is either a descendant or a brother/sister of the origin, who


receives the property from the origin by gratuitous title. Thus, in the
scheme of the reserva troncal, he is the first transferee of the property.

He is the point of reference of the 3rd degree relationship.

While the property is still with the prepositus there is as yet no


reserve. During the lifetime of the prepositus, he is the full owner of the
property. He can therefore alienate the property and defeat the seeds of
reserva troncal at this point of time. He can even prevent the supposed
reservor from receiving it (by operation of law) causing its partition. The
reserve arises only upon the second transferor.

The origin must be a legitimate relative because reserva troncal


exists only in the legitimate family. The prepositus must be a legitimate
descendant or a legitimate half brother of the origin of the property.

The reservista or reservor

He is an ascendant of the prepositus by whatever degree. The


reservista must be an ascendant other than the origin; otherwise, if the
two parties are the same person, there would be no reserva troncal.

He must be another ascendant other than the mediate source, if


the mediate source is an ascendant.

The reservor must have inherited the property by operation of law


(as share in legal succession or as legitime in testamentary succession).
If he acquire it through other means, there is no obligation to reserve.

Reserva troncal begins once the reservista inherits the property. He


is bound by the obligation.
The ownership of the reservoir over the property is full ownership
subject, however, to two (2) resolutory conditions: (1) his death; and (2)
on his death, the presence of relatives of the prepositus who are within
the third degree of consanguinity. Upon the death of the reservor, his
ownership is terminated and the same is transferred to the reserves.

Should the origin and the reservista belong to different lines?

Query illustrated: A receives by donation a parcel of land from his


paternal grandfather X. Upon As death, the parcel passes by intestacy to
his father Y (Xs son). The property never left the line. Is Y obliged to
reserve?

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One view: No, because another ascendant is one belonging to a


line other than that of the reservista.

Another view: Yes, because: 1) the law makes no distinction, and 2)


the purpose of the reserve is not only curative, but also preventive; i.e. to
prevent the property from leaving the line. This is the view accepted by
the majority.

May the reservista sell the reservable property? If so, what is


the nature of the sale?

Yes, because he acquired ownership of the reservable property


upon the death of the descendant propositus. The sale, however, is
subject to the resolutory condition that there must exist, at the time of
his death, relatives of the descendant who are within the third degree
and who belong to the line from which the property came. In this case,
the buyer acquires a limited and revocable title. After the death of the
reservista, the reservatorios may rescind the contract because the
resolutory condition to which the reserve is subject has already been
fulfilled.

If the reservor has alienated the property, his estate will reimburse
the reserves for the value of the reserved properties which were alienated
(Lunsod vs. Ortega, 46 Phil. 664).
Can the reservista execute a will disposing of the reservable
property?

No, because the reservable property does belong to him or his


estate. The property belongs to the reservatorios if they are existing upon
the reservistas death.

The reservoir cannot dispose of the reservable property by acts


mortis causa because upon his death, the property does not belong to his
estate. Automatically, and by operation of law, the reserves if there are
any, become the owners thereof.

Is the reserved property part of the reservistas estate which


can be transmitted to his heirs or which may be used to pay the
debts of his estate?

A reservista is nothing but a life usufructuary or a fiduciary of the


reservable property received.

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Reservable property neither comes, nor falls under the absolute


dominion of the ascendant who inherits and receives same from
descendant, therefore does not form part of his property nor become the
legitime of his forced heirs. It becomes his own property only in case that
all relatives of his own descendant shall have died in which case said
reservable property losses such character [Florentino vs. Florentino, 40
Phil. 480].

The reserved property is not part of the reservistas estate upon his
death. It does not even answer to the debts of the latter [Cano vs.
Director, 105 Phil. 1]. The reservable property cannot be transmitted by a
reservista to his or her own successorsmortis causa so long as a
reservatorio within the 3rd degree from the propositus are in existence
when the reservista dies.

Consequently, the creditors of the reservor cannot attach or levy on


execution a reservable property temporarily held by the reservor.

Can the property reserved be substituted?

The very same property must go to the process of transmissions in


order for the reserve to arise. Thus, the same property must come from
the mediate source, to the prepositus by gratuitous title, and to the
reservista by operation of law. If the prepositus substitutes the property
by selling, bartering, or exchanging it, the substitute cannot be reserved,
since while the property is with the prepositus, there is yet no reserve,
which commences only when the property is received by the reservista.
Consequently, the prepositus has, over the property, plenary powers of
ownership, and he may exercise these powers to thwart a potential
reserve. This refers to all kinds of properties real or personal, fungible
or non fungible.

What is the nature of reservistas right?

1. The reservistas right over the reserved property is one of


ownership;
2. The ownership is subject to a resolutory condition, i.e. the
existence of reservatorios at the time of the reservistas
death;
3. The right of ownership is alienable, but subject to the
same resolutory condition;
4. The reservistas right of ownership is registrable.

Can the reservista, by will, prefer some reservatorios over the


others?

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They have no power to appoint by will such reservatorios who


would get the reserved property.

Suppose the reservista is survived by the uncles and aunts and


by nephews and nieces of the prepositus, who shall be entitled to
the property reserved?

The uncles and aunts shall not share in the reservable property,
since under the law of intestate succession, a decedents uncles and
aunts may not succeed ab intestate so long as nephews and nieces of the
decedent survive and are willing and qualified to inherit.

The reservatorios or reservees:

They are usually the following:

1. 1st degree father, mother;


2. 2nd degree grand parents of the line from which the
properties originated and the brothers of double relationship
or the half blood coming form the source of the property;
3. 3rd degree great grandparents from said line, the 1st degree
uncles and the nephews, children of the brothers or half
brothers of the descendant as the case may be.

The reserve is in favor of a class, collectively referred to as the


reservatorios.

What are the requirements to be a reservatorio?


1. The reservee (reservatorio) must have double relations of
consanguinity;
2. He must be related by blood to the descendant prepositus or to
the other ascendant, or brother or sister (origin) from whom the
property came;
3. He must be within the third degree from the prepositus;
4. He must belong to the line from which the property came. This is
determined by the origin/mediate source;
5. They must be legitimate relatives of the origin and prepositus;
6. They must be living at the time of the death of the reservista
though may not have existed yet at the time of death of the
propositus.

Must the reservatorio also be related to the mediate source?

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One view: No, the article only speaks solely of two lines, the
paternal and the maternal of the descendant, without regard to
substitutions.

Another view: Yes, otherwise, results would arise completely


contrary to the purpose of the reserve, which is to prevent property from
passing to persons not of the line of origin.

Reserva in favor of reservatorios, as a class consequence: To


be qualified as a reservatorio, is it necessary that one must already
be living when the prepositus dies?

The better opinion seems to be that this is not required, because


the reserve is established in favor of a group or class; the relatives within
the third degree-not in favor of specified individuals, as long as one
belongs to the class when the reservista dies, then one is a reservatorio.

As long therefore as the reservatorio is alive at the time of the


reservistas death, he qualifies as such, even if he was conceived and
born after the prepositus death.

What are therefore the only requisites for the passing of the
title from the reservista to the reservatorio?

They are (1) death of the reservista; and (2) the fact that the
reservatorio has survived the reservista.

From whom do the reservatorios inherit?

They inherit from the descendant propositus and not from the
reservista, of whom the reservatorios are the heirsmortis causa, subject
to the condition that they must survive the reservista. The reservable
property is not part of the estate of the reservista, who may not dispose
of it by will, as long as there are reservatorios existing.

Is there preference among the reservatorios?

They are beneficiaries in equal shares, regardless of the difference


in degree of relationship with the prepositus.

Is there representation among reservatorios?

As in intestate succession, the rule of preference of degree among


reservatorios is qualified by the rule of representation.

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If the claimants of the property after the death of the reservor are
brothers and sisters of the prepositus and nephews and nieces (children
of other brothers and sisters who have predeceased the reservoir), the
right of representation is applicable as long as the representatives are
relatives to the prepositus within the third degree (Florentino vs.
Florentino, 40 Phil. 489).

What are the reservatorios rights?

(1) The reservatorios have a right of expectancy over the property;


(2) The right is subject to a suspensive condition, i.e. the
expectancy ripens into ownership if the reservatorios survive the
reservista;
(3) The right is alienable, but subject to the same suspensive
condition;
(4) The right is registrable.

Can the reservatorio (reservee) alienate his right of expectancy


during the lifetime of the reservor?

The SupremeCourt answered in the negative in the case of Edroso


vs. Sablan, 24 Phil. 295, decided on September 13, 1913. Later, the
Supreme Court in the case of Sienes vs. Esparcia, 1 SCRA 750 decided
on March 24, 1961 abandoned the Edroso doctrine holding that the
reservee may alienate the reservable property during the lifetime of the
reservor subject to the resolutory condition that he would survive the
reservor. If he does not survive the reservor, the ownership of the latter
becomes fixed and consolidated rendering ineffective the sale made by
the reservee.

Under the new Civil Code, future property or thereafter-acquired


property which is merely an expectancy can be sold (Articles 1461 and
1462). 70
Reserva Maxima and Reserva Minima

70Article 1461. Things having potential existence may be the object of the

contract of sale.
The efficacy of the sale of a mere hope or expectancy is deemed subject to the
condition that the thing will come into existence.
The sale of a vain hope or expectancy is void.
Article 1462. The goods which form the subject of a contract of sale may be
either existing goods, owned or possessed by the seller, or goods to be manufactured,
raised, or acquired by the seller after the perfection of the contract of sale, in this Title
called future goods.
There may be a contract of sale of goods, whose acquisition by the seller
depends upon a contingency which may or may not happen.

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What are reserva maxima and reserva minima?

Reserva maxima is a principle which provides that the reserva


applies to all the property gratuitously acquired from the ascendant,
brother or sister which could be included within the legitime of the
reservor received from the estate of the prepositus.

Reseva minima, on the other hand provides that all property


passing to the reservor must be considered as passing partly by
operation of law and partly by will of the prepositus. Resultingly, one-half
of the property acquired gratuitously by the prepositus should be
reservable property and the other half should be free and remain in the
estate of the reservor.

Illustration:

A died leaving a will. C received P1, 000, 000 from A by virtue


of the latters will. C in his own right, acquired properties worth P2,
000, 000. C died without issue. In his will, he gave the entirety of
his estate (P3, 000, 000) to B. One-half of this P3 Million was
received by B by operation of law (i.e. legitime) and the other half by
will as voluntary heir.

When B died, there is a surviving relative who qualified as a


reservee (D).

Is the entire property (P3, 000, 000) received by B reservable?

The reservable property refers only to the P1 Million received by C


from A and not the entire P3, 000, 000.

Out of this P1 Million, how much is the reservable portion?

1. Based on the principle of reserva maxima, the reservable portion of


the estate of C shall include all properties or money which can be
comprised within the one-half of the inheritance constituting the
lgitime of the reservor (B). Since the legitime of B in the entire
estate of C is P1, 500, 000. It is clear that the P1, 000, 000
received by C gratuitously from A can be contained within that
legitime. Hence, this P1, 000, 000 is totally reservable.
2. Based on the principle of reserva minima, the reservable property is
only P500, 000. This is premised on the fact that only one-half of
the P1, 000, 000 was received by B (reservor) as legitime which is
by operation of law, because the other half (P500, 000) was
received by will by B as voluntary heir.

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Suppose C died intestate and B is his only intestate heir, how


much is the reservable property?

All the amount received from A is reservable property because all


was received by operation of all.

Note: The principles of reserva maxima and reserva minima are


advocated by Manresa and Scaevola. These principles or theories need
not be followed in the Philippines. They will only complicate the already
complicated reserva troncal. The law must be interpreted to mean that
the entire property actually received by the prepositus be considered
reservable. The phrase by operation of law should not be considered in
its technical sense. It should be read simply to mean inherited by the
reservor. Otherwise, if some part of the property will be retained by the
reservor, the intention to return the property to the trunk where it
came from is partly defeated. Therefore, if reserva troncal is applicable,
the problem will just be a matter of identifying the property or knowing
its value and which must be transmitted to the reservees, if there are
any. If there are none, the property shall remain part of the estate of the
reservor and shall pass to his own heirs.

Extinguishment

How may the reserva be extinguished?

1. The death of the reservor or reservista;


2. The death or incapacity of all the would-be reservatorios or
reservees during the lifetime of the reservor or reservista ;
3. Renunciation or waiver by all the reservatorios of their right
to the reserva made subsequent to the death of the reservor,
provided that no other reservatorio is born subsequently;
4. Total fortuitous loss or destruction of the reserved property
without any fault or negligence on the part of the reservor or
reservista ;
5. Confusion or merger of rights, as when the reservatorio
acquire the reservistas right by a contract inter vivos;
6. Prescription of action to recover property from the estate of
the reservor or adverse possession. Prescription is ten years.
7. Registration of the reserved property under the Torrens
System as free from the reservation and its subsequent
alienation to a third party who got it in good faith (De los
Reyes vs. Paterno, 34 Phil. 470);
8. Estoppel and laches (Arroyo vs. Gerona, 58 Phil. 266).

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What are the rights and obligations of the parties?

a. Rights of the reservatorios:

(1) To demand inventory and appraisal of movables;


(2) To demand annotation of reservable character of the
immovable within 90 days;
(3) To demand security and bond.

b. Obligations of the reservistas:

(1) To inventory and appraise movables within 90 days;


(2) To annotate reservable character of the immovable within
90 days;
(3) To give security and bond;
(4) He must not substitute the reservable property with
another.

SECTION 6. DISINHERITANCE

Define disinheritance

It is the process or act, thru a testamentary disposition of


depriving in a will any compulsory heir of his legitime for true and lawful
causes.

What are the requisites of a valid disinheritance?

1. It must be made in a will (Article 916);

1.1 The will must be formal and valid;


1.2 The will must not have been revoked at least in
so far as the disinheritance is concerned.

2. Disinheritance must be expressly made, that is, the identity of the


heir must be identified;

3. It must specify the cause (Articles 916-918);

3.1 Article 919 for descendant;


3.2 Article 920 for ascendant; and
3.3 Article 921 for surviving spouse

4. It must be for a cause specified by law [for a legal cause] (Article


916 in relation to Articles 919-921);

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4.1 The cause must be stated in the will.

5. It must be unconditional and absolute;

6. It must be total or complete disinheritance;

7. The cause must be certain and true (Article 918);

7.1 It must be for an existing cause its existence must be


proved by evidence.

7.2 If the truth of the cause is denied, it must be proved


by the proponent (Article 917)

Who has the burden of proving the truth of the cause for
disinheritance?

If there is a testamentary disposition whereby a compulsory heir is


being disinherited for a cause mentioned in the law, but the said heir
denies the truth of the alleged cause, the burden of proof rests upon the
heirs (not necessarily forced heirs) who wish to sustain the
disinheritance (Article 917). If they cannot prove the truth or existence of
the cause, the disinheritance is void and the compulsory heir could not
be deprived of his legitime. Preponderance of evidence is enough in
proving the truth of the cause for disinheritance.

A was disinherited by his father on the ground of refusal


without justifiable cause to support him. He denied it. What is the
effect of such denial?

The other heirs should then prove the truth of the cause for
disinheritance. Under the law, the burden of proving the truth of the
cause of the disinheritance shall rest upon the other heirs of the testator,
if the disinherited heir should deny it (Article 917). Proponent of
disinheritance has the burden of proof. There is no presumption that the
cause is true. The presumption is falsehood.

What is the effect of disinheritance?

The effect of disinheritance is not just deprivation is not just


deprivation of the legitime but the total exclusion of the disinherited heir,
from the inheritance. Thus, the disinherited heir forfeits:

a. His legitime;
b. His intestate portion; and

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c. Any other testamentary disposition made in a prior will of the


disinheriting testator.

What is ineffective disinheritance?

It is disinheritance which lacks one or other of the requisites,


either because it is:

1. Without a specification of the cause, or


2. For a cause the truth of which, if contradicted, is not proved, or
3. The cause of which is not one of those set forth in the Civil Code
(Article 918).

What is the effect of ineffective disinheritance?

1. It shall annul the institution of heirs insofar as it may prejudice


the person disinherited;
2. But the devises and legacies and other testamentary dispositions
shall be valid to such extent as will not impair the legitime (Article
918);
3. The effect of a defective or imperfect disinheritance is the same as
that of preterition of a compulsory heir (Article 854).

If there is ineffective or imperfect disinheritance, will the heir


in question get any part of the free portion other than his legitime?

The heir in question gets his legitime, but as to whether he will


also get any part if the intestate portion or not, depends on whether the
testator gave away the free portion through testamentary dispositions. If
he did, these dispositions are valid and the compulsory heir improperly
disinherited gets his legitime. If the testator did not, the compulsory heir
will be entitled to his corresponding share of the free portion as well.

What is the difference between imperfect disinheritance and


preterition?

In preterition, the institution of heirs is completely annulled, while


in imperfect disinheritance, the institution remains valid, but must be
reduced insofar as the legitime has been impaired.

What are the sufficient causes for the disinheritance of


children and 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 her spouse, descendants,
or ascendants;

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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 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 (Article 919).

NOTE: Enumeration is exclusive. The list is an exclusive list and


not illustrative.

What does the term children and descendants include in


Article 919?

The children or descendants referred to in the Article include the


legitimate and illegitimate (recognized) children and include
grandchildren, great-grandchildren and so on. They are compulsory
heirs.

Can an intestate heir who is not a compulsory heir be the


subject of disinheritance?

Intestate heirs who are not compulsory heirs (not entitled to


legitime) cannot be the subject of disinheritance. The right to disinherit
must be exercised through a will where the specific cause for
disinheritance must be specifically stated.

Re: Par. 1 (Attempt against the life of testator)

The word attempt is used non-technically and should not be


construed to limit the provision to the attempted stage of the
felony. All stages of commission are included whether attempted,
frustrated or consummated.

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The felony must be an intentional one the intent to kill must be


present, thus reckless imprudence resulting in homicide is not
covered.

Final conviction is required.

If the child or descendant participated in the commission of the


crime as an accomplice, he can still be disinherited, But if he is
just an accessory after-the-fact, as his participation was
subsequent to the commission of the crime, he could not be
disinherited.

If after having been found guilty as a principal or an accomplice,


the child or descendant is granted executive clemency or pardon,
he may still be disinherited.

The disinheritance is personal to the testator. He has the


prerogative to exclude a person from his estate if there is a valid
ground.

Re: Par. 2 (Groundless or baseless accusation against the


testator)

The word accused is generically, and will include filing of the


complaint before the prosecutor, or presenting incriminating
evidence against the testator, or even suppressing exculpatory
evidence.

The accusation must be in connection with a criminal case. The


accusation must be for a crime which carries a penalty of at least
six years imprisonment (afflicitive penalty).

The testator must be acquitted.

The accusation must be found groundless, i.e., the judgment of


acquittal must state either that no crime was committed or that
the accused did not commit the crime. An acquittal on reasonable
doubt will not be a ground for disinheritance.
Re: Par. 3 (Conviction for adultery or concubinage with the
spouse of the testator)

Final conviction is required.

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The guilty spouse is deemed disinherited by operation of law in


case of a legal separation decreed by the court (Article 63 [par. 4]
FC). This is disinheritance without formal disposition in a will.

If both the child and the spouse happen to be compulsory heirs of


the testator, he could disinherit them together in his will. But there
must first be conviction if the basis is Article 919 (par. 3). Under
Article 921 (par. 4), conviction is not required. It is enough to prove
the adultery or concubinage during the testate or intestate
proceedings.

Re: Par. 4 (Causing the testator to make a will or change


already made)

Does not mention prevent, but prevention is a ground for


unworthiness (Art. 1032) which has the same effect as
disinheritance.

Re: Par. 5 (Unjustifiable refusal to give support)

There must have been a need and a demand for support either
judicially or extra-judicially.

The demand must have been unjustifiably refused.

Re: Par. 6 (Maltreatment of the testator)

This will include a wide range of misdeeds, but it is required that


the act of verbal or physical assault be of a serious nature.

Maltreatment could be by word or by deed.

All acts of physical violence against the testator but not sufficient
to kill are encompassed in maltreatment. Otherwise, the act or acts
may fall under paragraph 1.

Example: The son shoots his father. The father is wounded but
recovers. The father does not want a scandal so he does not file
charges against his son. So he disinherits his son not under No. 1
but under No. 6.

No conviction is required; in fact, it is not even required that any


criminal case be filed

Re: Par. 7 (Leading a dishonorable or disgraceful life)

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The operative word here is lead. There must be a habituality,


continuity and constancy to the conduct to make it fall under this
paragraph

The dishonorable or disgraceful conduct need not be sexual in


nature; drug pushing or smuggling is included.

Re: Par. 8 (Conviction for a crime with civil interdiction)

Final conviction is required.

Summary:

1. Conviction is required in Nos. 1, 2, 3 & 9.


2. Common causes: Paragraphs 1, 2, 3, 4, 5 of Article 919 are also
among the causes for disinheriting parents and ascendants (Vide:
Paragraphs 2, 3, 4, 5 and 7 of Article 920).
3. Paragraphs 1, 2, 3 and 4 are among the causes which constitute
acts of unworthiness which disqualify an heir, devisee or legatee
from succeeding the testator (Vide: Paragraphs 2, 3, 5 and 6 of
Article 1032)

Can an adopted child be disinherited by the adopting parent?

Under the Domestic Adoption Act of 1988 (R.A.) No. 8552 approved
on February 25, 1988), adopted children can be disinherited by the
adopting parents (Section 19, R.A. 8552). The reason for this is that, the
right of the adopting parent to rescind the adoption authorized under
Article 192 of the Family Code had been abrogated by the new law.
Instead of rescission, the new law simply authorized the adopting
parents to disinherit the adopted if any of the causes for disinheritance
under Article 919 exists. This new provision is a complementary to the
prevailing jurisprudence that adopted children, if preterited in a will,
shall cause the nullification of the institution if heirs (Acain vs. IAC, 155
SCRA 500).

If the adopter died intestate, no disinheritance could be effected


because disinheritance can apply only in testamentary succession.

Under the new law, the adopted child is impliedly given the right of
representation which right was not accorded to him before (Section 17,
R.A. No. 8552).
What are the sufficient causes for the disinheritance of
parents or ascendants, whether legitimate or illegitimate?

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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 a parent or ascendant has been convicted of an attempt
against the life of the testator, his or her spouse, descendants,
or ascendants;
3. When the parent or ascendant has accused the testator of a
crime for which the law prescribes an imprisonment for six
years or more, if the accusation has been found to be false;
4. When the parent or ascendant has been convicted of adultery or
concubinage with the spouse of the testator;
5. When the parent or ascendant by fraud, violence, intimidation,
or undue influence causes the testator to make a will or change
one already made;
6. The loss of parental authority for causes specified in this Code;
7. The refusal to support the children or descendants without
justifiable cause;
8. An attempt by one of the parents against the life of the other,
unless there has been reconciliation between them (Article 920).

NOTES:

Enumeration is exclusive.
Nos. 2, 5 & 7 are the same as the grounds in Art. 919.
Exception to par. 6: Adoption, age of majority.
The loss of parental authority should have been effected either:

i. By final judgment in a criminal case, or


ii. By final judgment in a legal separation proceeding, or
iii. By judicial order due to excessive harshness,
corrupting orders or examples or counsels, making the
child beg, or abandonment.

Relatedly, those found guilty of adultery or concubinage with one


another cannot donate properties to each other (Article 739).
Neither can they succeed each other (Article 1028).
Exception to par. 8: If the offended parent has forgiven the
offending parent or if reconciliation has been reached between
them, the disinheritance of the former will not be sanctioned by
law.

What are the sufficient causes for disinheriting of a spouse?


1. When the spouse has been convicted of an attempt against the
life of the testator, his or her descendants, or ascendants;

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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 latter to make a will or to change one
already made;
4. When the spouse has given grounds for legal separation;
5. When the spouse has given grounds for the loss of parental
authority;
6. Unjustifiable refusal to support the children or the other spouse
(Article 921).

Note: A decree of legal separation is not required.

What is the effect of subsequent reconciliation?

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 (Article 922)

Therefore, if reconciliation occurs before the disinheritance is made


right to disinherit is extinguished. If it occurs after the disinheritance is
made disinheritance is set aside. In this case, no revocation of the will
is needed. The reconciliation itself repudiates the will.

What are the other ways of lifting or revoking disinheritance?

1. Nullification of the will of the testator.


2. The subsequent institution of the disinherited heir in a subsequent
will.

What is the effect of setting aside the disinheritance?

a. The disinherited heir is restored to his legitime;


b. If the disinheriting will did not dispose of the disposable
portion, the disinherited heir is entitled to his proportionate
share (in intestacy), if any, of the disposable portion.
c. If the disinheriting will disposed of disposable portion in
favor of testamentary heirs, such dispositions remain valid.

Note: There is no required form of reconciliation. It may be express


or implied. In fact, the mere act of living together in the same house is
sufficient.

Is there a right of representation in disinheritance?

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The right of representation is granted to descendants of


disinherited descendants only (Article 972 provides that the right of
representation takes place in the direct descending line, but never in the
ascending line).

Thus, a disinherited child will be represented by his children or


other descendants. However, if the heir disinherited is a
parent/ascendant or spouse, the children or descendants of the
disinherited heir do not have any right of representation.

The very property which the children and descendants have


received as legitime in representation of the disinherited heir cannot be
administered by the disinherited heir; neither can he exercise any right
of usufruct over the same (Article 923).

What is the extent of representation?

The representative takes the place of the disinherited heir not only
with respect to the legtime but also to any intestate portion that the
disinherited heir would have inherited, if the free portion was not
disposed in favor of testamentary heirs.

Representation, therefore, occurs in compulsory and intestate


succession.

SECTION 7. LEGACIES AND DEVISES

What is legacy?

It is a testamentary disposition of personal property by particular


title.

What is devise?

It is a testamentary disposition of real property by particular title.

Distinguish legatee and devisee from an ordinary heir.

Essentially, the difference is that an heir receives an aliquot or


fractional part of the inheritance, whereas a legatee or devisee receives
specific or generic personalty or realty, respectively.

What is the importance of the definition/distinction?

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To distinguish it from a testamentary disposition to an heir


because of the effects of preterition.

What can be devised or bequeathed?

Anything within the commerce of man. It is not required that the


thing devised or bequeathed belong to the testator.

What is the limitation on the legacy or devise?

It should not impair the legitime.

Who is charged with the payment or delivery of a legacy or


devise?

General rule the estate.

However, the testator may impose the burden on a testamentary


heir or a legatee or devisee, who shall be bound thereby. This will be in
the nature of a subsidiary legacy or devise, and as far as the heir, legatee
or devisee, it will be a mode.

What is the extent of liability of heir, devisee or legatee in


case of subsidiary legacies or devises?

The value of the benefit received by the testator.

What is the liability of two or more heirs who take possession


of the estate for the loss or destruction of a thing devised or
bequeathed?

They shall be solidarily liable, even though only one of them should
have been negligent. The liability imposed here is based on malice, fault
or negligence.

Who is liable for eviction?

General rule the estate.

In case of a subsidiary legacy or devise the heir, legatee, or


devisee charged.

State the rule if the testator, heir or legatee owns only a part
of, or an interest in the thing bequeathed.

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General rule conveys only the interest or part owned by the


testator.
Exception if the testator provides otherwise.

State the rule if the testator conveys more than he owns.

The estate should try to acquire the part or interest owned by the
other parties.

If the other parties are unwilling to alienate, the estate should give
the legatee/devisee the monetary equivalent.

State the rule when the legacy/devise of a thing belongs to


another.

1. If the testator ordered the acquisition of the thing the order


should be complied with. If the owner is unwilling to part with the
thing, the legatee/devisee should be given the monetary value.
2. If the testator erroneously believed that the thing belonged to him
legacy/devise is void.
3. Exception if subsequent to the making of the disposition, the
thing is acquired by the testator onerously or gratuitously, the
disposition is validated.

State the rule if the legacy/devise of a thing already belonged


to the legatee/devisee.

1. The legacy of devise shall be void; and


2. It shall not be validate by an alienation by the legatee/devisee
subsequent to the making of the will

State the rule if the thing was owned by another person at the
time of making of the will and acquired thereafter by the
legatee/devisee.

1. If the testator erroneously believed that it belonged to him the


legacy/devise is void.
2. If the testator was not in error

a. If the thing was acquired onerously by the legatee/devisee


the latter is entitled to reimbursement;
b. If the thing was acquired gratuitously by the legatee/devisee
nothing more is due;
c. If the thing was owned by the testator at the time of making
of the will and acquired thereafter from him by the
legatee/devisee Articles 932 and 933 are silent on this, but

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Article 957, par. 2 can be applied and the legacy/devise


should be deemed revoked.
State the rules in legacy of credit or remission.

1. It applies only to amount still unpaid at the time of the testators


death;
2. It is deemed revoked if testator subsequently sues the debtor for
collection;
3. If generic, it applies only to those existing at the time of the
execution of the will, unless otherwise provided.

State the rule if the legacy/devise is to a creditor.

General rule treated like any other legacy/devise and therefore


will not be imputed to the debt.

Exception imputed to the debt of the testator so provides, and if


the debt exceeds the legacy/devise, the excess may be demanded as an
obligation of the estate.

Define alternative legacies/devises.

One which provides that, among several things mentioned, only


one is to be given.

Who has the right of choice?

1. In a direct legacy/devise the estate, through the executor or


administrator;
2. In a subsidiary legacy/devise - the heir, legatee or devisee charged.

What are the rules if the person who is to choose dies before
choice is made?

1. If the choice belonged to executor or administrator the right is


transmitted to his successor-in-interest;
2. If the choice belongs to an heir, legatee, or devisee the right is
transmitted to his own heirs.

Finality of choice choice is irrevocable.

What is the rule on validity of generic legacies/devises?

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1. Generic legacy valid even if no such movables exist in the


testators estate upon his death. The estate will simply have to
acquire what is given by legacy.
2. Generic devise valid only if there exists such an immovable in the
testators estate at the time of his death.

What is the duration and amount of legacy for education?

1. Duration age of majority (18) or the completion of a professional,


vocational, or general course whichever comes later;
2. Amount

a. Primarily that fixed by the testator


b. Secondarily that which is proper, as determined
by (i) the social standing and circumstances of the
legatee, and (ii) the value of the disposable portion
of the estate

What is the duration and amount of legacy for support?

1. Duration the legatees lifetime, unless the testator provides


otherwise.
2. Amount

a. Primarily that fixed by the testator;


b. Secondarily - that which the testator during his lifetime
used to give the legatee by way of support, unless
markedly disproportionate to the value of the disposable
portion;
c. Tertiarily that which is reasonable, on the basis of (i) the
social standing and circumstances of the legatee, and (ii)
the value of the disposable portion.

When is a legacy of periodical pension demandable?

Upon the death of the testator, and the succeeding ones at the
beginning of the period without duty to reimburse should the legatee die
before the lapse of the period.

When is a devise/legacy demandable?

1. If pure and determinate upon the testators death.


2. If pure and generic upon the testators death.
3. If conditional (suspensive) upon the happening of the condition.

When does ownership of the devise/legacy vest?

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1. If pure and determinate upon the testators death.


2. If pure and generic
a. If from testators estate upon testators death.
b. If acquired from a third person upon acquisition.

3. If with suspensive term upon arrival of the term but right to it


vests upon the testators death.
4. If conditional (suspensive) upon the testators death, if the
condition is fulfilled.

When shall the devisee/legatee entitled to the fruits of the


devise/legacy?

1. If pure and determinate upon the testators death.


2. If pure and generic upon determination, unless testator provides
otherwise.
3. If with a suspensive term upon the arrival of the term.
4. If conditional suspensive upon the happening of the condition,
unless the testator provides otherwise.

If the estate should not be sufficient to cover all the legacies


or devise, what is the order payment that must be followed?

1. Remuneratory legacies and devises;


2. Legacies or devises declared by the testator to be preferential;
3. Legacies for support;
4. Legacies for education;
5. Legacies or devises of a specific, determinate thing which forms a
part of the estate;
6. All other pro rata.

What are the rules on acceptance and repudiation of


legacies/devises?

General rule - acceptance may be total or partial.

Exception if the legacy/devise is partly onerous and partly


gratuitous, the recipient cannot accept the gratuitous part and renounce
the onerous part. Any other combination however is permitted.

If the legatee/devisee dies before accepting or renouncing the


legacy/devise, who can exercise such right to accept or renounce?

His heirs as to their pro-indiviso share.

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What are the rules in case there is repudiation by or


incapacity of legatee/devisee?

1. Primarily substitution;
2. Secondarily accretion;
3. Tertiarily intestacy.

When may a legacy or devise be revoked by operation of law?

1. Transformation of the thing;


2. Alienation;
3. Total loss;
4. If the legacy is a credit against a third person or the remission of
debt, and the testator, subsequent to the making of the will, brings
an action against the debtor for payment.

CHAPTER 3. INTESTATE SUCCESSION

What is legal or intestate succession?

It is one, which takes place by operation of law in the absence of a


valid will.

When does 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 a 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;
4. When the heir instituted is incapable of succeeding, except in
cases provided in the Civil Code;
5. When there is preterition of a compulsory heir in the direct line;
6. If the testamentary disposition is subject to a resolutory condition
and such condition is fulfilled;
7. If the testamentary disposition is subject to a resolutory term and
such term expires;
8. In case of ineffective dispositions (Articles 960 & 854).

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What are the three basic rules of intestacy?

1. The rule of preference of lines;


2. The rule of proximity; and
3. The rule of equality among relatives of the same degree.

What is meant by the principle of preference of lines in


intestate succession?

It refers to the principle by virtue of which relatives of the decedent


who are in the direct descending line shall exclude those who are in the
direct ascending or in the collateral line, while those who are in the direct
ascending line, on the other hand, shall exclude those who are in the
collateral line.

What is meant by the principle of proximity?

It refers to the rule by virtue of which relatives of the decedent


nearest in degree shall exclude the more remote ones. (Article 962) This
rule, however, presupposes the fact that all the relatives involved should
belong to the same line. In other words, it is subject to the principle of
preference between lines.

Is there an exception to the principle of proximity?

There is one exception to this rule and that is when the right of
representation properly takes place. The reason for this is that in
representation, the representative is raised by legal fiction to the place
and degree of the person represented so that he acquires the rights
which the latter would have of he were living or if he could have
inherited.

What are the exceptions to the rule that relatives in the same
degree shall inherit in equal shares?

1. The rule of division by line in the ascending line (Article 987), that
is, when the inheritance is divided between paternal and maternal
grandparents. In this case, if two grandparents survive the
decedent in the paternal line and by one grandparent in the
maternal line, one-half shall pass to the surviving grandparent in
the maternal line.
2. The distinction between full-blood and half-blood relationships
among brothers and sisters, as well as nephews and nieces
(Articles 1006 & 1008), that is, when the inheritance is divided
among brothers and sisters, some of whom are of the full blood
and others of the half blood. In this case, those of the full blood

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shall be entitled to double the share of those of the half blood.


(NOTE: This distinction is important only with reference to
brothers and sisters and nephews and nieces, because there is a
ratio of 2:1 for full-blood and half-blood relationship respectively.
But with respect to other collateral relatives, the full-blood and
half-blood relationship is immaterial.)
3. In certain cases when the right of representation takes place. In
this case, the division of the inheritance is per stripes and not per
capita. (Article 974).
4. The rule of preference of lines.
5. The distinction between legitimate and illegitimate filiations (the
ratio under the present law is 2:1 (Article 983, in relation to Article
895 as amended by Article 176, Family Code).

What is meant by degree? How is proximity of relationship


determined?

Proximity of relationship is determined by the number of


generations. Each generation forms a degree (Article 963).

What is meant by line?

Line refers to a series of degrees, which may be either direct or


collateral.

Define the different kinds of lines.

1. A direct line is that constituted by the series of degrees among


ascendants and descendants. There is no legal limit to the number
of degrees for entitlement to intestate succession.
2. A collateral line, on the other hand, is that constituted by the
series of degrees among persons who are not ascendants and
descendants, but who come from a common ancestor. (Article 964)
Computation of degrees is particularly important in the collateral
line because intestate succession extends only to the 5th degree of
collateral relationships.
3. The direct line, in turn, may either be descending or ascending.
The former unites the head of the family with those who descend
him. The latter binds a person with those from whom he descends.
(Article 965)

Who are collaterals by degrees?

1. First degree none


2. Second degree brothers and sisters
3. Third degree

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3.1 Uncles and aunts


3.2 Nephews and nieces

4. Fourth degree
4.1 First cousins
4.2 Brothers and sisters of grandparent (Granduncles and
grandaunts)
4.3 Grandchildren of a brother or sister (Grandnephews
and grandnieces)
5. Fifth degree
5.1 A child of a first cousin
5.2 First cousin of a parent
5.3 Brothers and sisters of a great-grandparent
5.4 Great grandchildren of a brother or sister.

Define representation.

It is a right crated by fiction of law, by virtue of which the


representative is raised to the place and degree of the person
represented, and acquires the rights, which the latter would have if he
were living or if he could have inherited (Article 970).

Is there accretion in intestacy?

There is accretion in intestacy among heirs of the same degree, in


case of predecease, incapacity, or renunciation of any one of them.
Relatives must be in the same kind of relationship to the decedent.

This is because of the principle of preference of lines in intestate


succession, thus there can be no accretion among a grandchild, a
grandparent and a brother of the decedent, even if they are all related to
him in the second degree, because they are not inheriting together in the
first place.

Exception when there is no accretion:

In case of predecease or incapacity, representation if proper, will


prevent accretion from occurring (Article 968).

What is the effect of renunciation by all in the same degree?

The right of succession should first be passed on the heirs in


succeeding degrees (in successive order) before the next line can succeed,
because of the rule if preference of lines. Thus:

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1. The descending line first if all the descendants of a certain degree


renounce, succession passes to the descendants of the next
degree, and so on;
2. The ascending line next should no one be left in the descending
line, the heirs in the ascending line acquire the right of succession,
again in order of degrees of proximity;
3. The collateral line last only if all the descendants and ascendants
renounce will the collateral relatives acquire the right to succeed.
(Article 969)

Notes:

They inherit in their own right and cannot represent the person
repudiating the inheritance.
Representation does not apply in cases of universal renunciation
outlined above, because there is no representation in renunciation.

What is representation?

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 if he could have inherited (Article 970).

The representative is called to the succession by 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 (Article 971).

In order that representation may take place, it is necessary that


the representative himself be capable of succeeding the decedent (Article
973)

In what kinds of succession do representation operate?

a. Legitime; and

b. Intestacy.

In what line or lines shall the right of representation take place?

1. It takes place in the direct descending line, but never in the


ascending line (Article 972).

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2. 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 (Article
972).
3. When children of one or more brothers or sisters of the deceased
survive, if they survive with their uncles or aunts. But if they alone
survive, they shall inherit in equal portions (Article 975).

When does the right of representation take place? What are the
instances when representation operates?

1. In testamentary succession:

a. In case a compulsory heir in the direct descending line dies


before the testator survived by his children or descendants
(Article 856);
b. In case a compulsory heir in the direct descending line is
incapacitated to succeed from the testator and has children
and descendants (Articles 856, 1035);
c. In case a compulsory heir in the direct descending line is
disinherited and he has children or descendants (Article
923).

2. In intestate succession:

a. In case a legal heir in the direct descending line dies before


the decedent survived by his children or descendant (Articles
981, 982), or in the absence of other heirs who can exclude
them from the succession, a brother or sister dies before the
decedent survived by his or her own children (Articles 972,
975);
b. In case a legal heir in the direct descending line is
incapacitated to succeed from the decedent (Articles 1035)
and he has children or descendants, or in the absence of
other heirs who can exclude them from the succession, a
brother or sister is incapacitated to succeed from the
decedent and he or she has children. (Articles 972, 975,
1035).

Can an heir who repudiates his inheritance be represented?

No, because an heir who has repudiated his inheritance may not
be represented (Article 977).

Can a voluntary heir or legatee or devisee who dies before the


testator or who is incapacitated to succeed be represented?

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No, since in testamentary succession, the right of representation is


a right, which pertains only to the legitime of compulsory heirs (Article
856).

What are the different limitations imposed by law to the right


of representation in the collateral line?

(1) The right can be exercised only by nephews and nieces of the
decedent (Articles 792, 975);
(2) The right can be exercised by nephews and nieces of the
decedent only if they concur with at least one brother or
sister of the decedent (Article 975). Otherwise, if they are the
only survivors, they shall inherit in their own right and not
by right of representation.
(3) The right of representation in the collateral line is possible
only in intestate succession; in other words, it cannot
possibly take place in testamentary succession. In
testamentary succession, only compulsory heirs may be
represented (Article 856). It is, of course, obvious that
brothers and sisters are not compulsory heirs. If instituted,
they are classified as mere voluntary heirs.

Can an illegitimate person be represented?

If the child to be represented is legitimate only legitimate


children/descendants can represent him (Article 992).

If the child to be represented is illegitimate both legitimate and


illegitimate children/descendants can represent him (Articles 902, 989,
990)

Is there representation by a renouncer?


Although a renouncer cannot be represented, he can represent the
person whose inheritance he has renounced (Article 976). The reason is
in Article 971 The representative does not succeed the person
represented but the one whom the person represented would have
succeeded.

How does representation operate?

Per stirpes the representative receives only what the person


represented would have received. If there are more than one
representative in the same degree, then the portion is divided equally,
without prejudice to the distinction between legitimate and illegitimate
children, when applicable.

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What are the rules on qualification?

1. The representative must be qualified to succeed the


decedent (Article 973).
2. The representative need not be qualified to succeed
the person represented (Article 971).
3. The person represented need not be qualified to
succeed the decedent in fact, the reason why
representation is taking place is that the person
represented is not qualified, because of predecease,
or incapacity, or disinheritance.

What is the share, which is given to a person who inherits by


right of representation?

In testamentary succession, the share which is given to the


representative is the legitime of the compulsory heir who is represented,
while in intestate succession, it is the entire share of the legal heir who is
represented.

What is the difference in the rule in case of representation by


grandchildren and representation by nephews and nieces?

1. If all the children are disqualified the grandchildren


still inherit by representation (Article 982) (Per
stirpes).
2. If all the brothers and sisters are disqualified the
nephews and nieces inherit per capita (Article 975).

Who are intestate heirs?

1. Legitimate children/ descendants;


2. Illegitimate children/descendants;
3. Legitimate parents/ascendants;
4. Illegitimate parents;
5. Surviving spouse;
6. Brothers, sisters, nephews, nieces;
7. Other collaterals to the 5th degree;
8. State.

What is the order of intestate succession?

1. If the decedent is a legitimate person:

(1) Legitimate children or descendants.

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a. Exclude parents, collaterals and state.


b. They concur with surviving spouse and
illegitimate children.
c. They are excluded by no one.
(2) Legitimate parents or ascendants.

a. Exclude collaterals and state


b. Concur with illegitimate children and surviving
spouse
c. They are excluded by legitimate children

(3) Illegitimate children.

a. Exclude illegitimate parents, collaterals and


state
b. Concur with surviving spouse, legitimate
children and legitimate parents
c. They are excluded by no one

(4) Illegitimate parents.

a. Exclude collaterals and state


b. Concur with surviving spouse
c. They are excluded by legitimate children and
illegitimate children

(5) The surviving spouse.

a. Excludes collaterals other than brothers, sisters,


nephews and nieces and state
b. Concurs with legitimate children, illegitimate
children, legitimate parents, illegitimate parents,
brothers, sisters, nephews and nieces
c. Excluded by no one.

(6) Brothers and sisters, nephews and nieces.

a. Exclude all other collaterals and the state


b. Concur with surviving spouse
c. Are excluded by legitimate children, illegitimate
children, legitimate parents, and illegitimate
parents.

(7) Other collateral relatives within the fifth degree.

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a. Exclude collaterals in remoter degree and the


state
b. Concur with collaterals in the same degree
c. Are excluded by legitimate children, illegitimate
children, legitimate parents, illegitimate parents,
surviving spouse, brothers and sisters, and
nephews and nieces.

(8) State.

a. Excludes no one
b. Concurs with no one
c. Is excluded by everyone

2. If the decedent is an illegitimate person:

[For rules of exclusion and concurrence, see above]

(1) Legitimate children and descendants;


(2) Illegitimate children;
(3) Natural or spurious parents;
(4) The surviving spouse subject to the concurrent right of brothers
and sisters, nephews and nieces;
(5) Brothers and sisters, nephews and nieces;
(6) State.

Who among the legal heirs enumerated above cannot be


excluded from the succession?

(1) Legitimate children or descendants;


(2) Illegitimate children; and
(3) Surviving spouse.

What are the different combinations in intestate succession


(Articles 978 to 1011)?

1. Legitimate children alone (Article 979)

The whole of the estate, divided equally.

2. Legitimate children and illegitimate children (Articles 983 and 176


FC)

The whole estate, each illegitimate child getting the share


of one legitimate child.

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3. Legitimate children and surviving spouse (Article 996)


The whole estate, divided equally (the surviving spouse
counted as one legitimate child).

4. Legitimate children, surviving spouse and illegitimate children


(Articles 999 and 176, FC)

The whole estate, the surviving spouse being counted as one


legitimate child and each illegitimate child getting of the
share of one legitimate child.

5. Legitimate parents alone (Article 985)

The whole estate, divided equally.


6. Legitmate ascendants (other than parents) alone (Article 987)

The whole estate, observing, in proper cases, the rule of


division by line.

7. Legitimate parents and illegitimate children (Article 991)

Legitimate parents of the estate;


Illegitimate children of the estate.

8. Legitimate parents and surviving spouse (Article 997)

Legitimate parents of the estate;


Surviving spouse of the estate.

9. Legitimate parents, surviving spouse, illegitimate children (Article


1000)

Legitimate parents of the estate;


Surviving spouse of the estate;
Illegitimate children of the estate.

10. Illegitimate children alone (Article 988)

The whole of estate, divided equally.

11. Illegitimate children and surviving spouse (Article 998)

Illegitimate children - of the estate;


Surviving spouse of the estate.

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12. Surviving spouse alone (Article 994 & 995)

The whole of the estate.

13. Surviving spouse and illegitimate parents

(No article governing)

Surviving spouse of the estate;


Illegitimate parents of the estate by analogy with Article
997.

14. Surviving spouse and legitimate brothers and sisters,


nephews and nieces (Article 1001)

Surviving spouse of the estate;


Legitimate brothers, sisters, nephews and nieces of the
estate (the nephews and nieces inheriting by representation,
in proper cases).

15. Surviving spouse and illegitimate brothers and sisters,


nephews and nieces (Article 994)

Surviving spouse of the estate;


Illegitimate brothers, sisters, nephews, nieces of
the estate (the nephews and nieces inheriting by
representation, in proper cases).

16. Illegitimate parents alone (Article 993)

The whole estate.

17. Illegitimate parents and children of any kind (Article 993)

Illegitimate parents excluded;


Children inherit in accordance with Nos. 1, 2 & 10,
supra.

18. Legitimate brothers and sisters alone (Articles 1004 & 1006)

The whole estate, with a brother/sister of the half-


blood inheriting the share of a brother/sister of the
full-blood;

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Legitimate brothers and sisters, nephews and nieces


(Article 1005 & 1008) the whole of the estate,
observing the 2:1 proportion of full- and half-blood
fraternity (No. 18, supra) and the nephews and nieces
inheriting by representation in proper cases.

19. Nephews and nieces with aunts and uncle (Article 1009 by
inference)

Uncles and aunts excluded;


Nephews and nieces inherit in accordance with No.
22, infra.

20. Illegitimate brothers and sisters alone (no article governing)

The whole estate, observing the 2:1 proportion of full-


and half-blood fraternity by analogy with No. 18,
supra.

21. Illegitimate brothers, sisters, nephews, and nieces (no article


governing)

The whole estate, as in No. 19, supra, by analogy.

22. Nephews and nieces alone (Article 975 & 1008)

The whole estate, per capita, but observing the 2:1


proportion for the full- and the half-blood.

23. Other collaterals (Article 1009 & 1010)

The whole estate, per capita, the nearer in degree


excluding the more remote.

24. State (Article 1011)

The whole estate, assigned and disposed as follows:

a. If decedent is a resident of the Philippines at any time:

1. Personality property to municipality of last


residence
2. Real property where situated

b. If decedent never a resident of the Philippines:

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1. Personal property and real property where


respectively situated.

c. How property is to be used:

1. For the benefit of public education and


charitable institutions in the respective
municipalities/cities situated.
2. Alternatively, at the instance of an interested
party, or motu propio, court may order creation
of a permanent trust for the benefit of the
institution concerned.

What are the successional rights of illegitimate children in


intestate succession?

a. If they survive alone as a class they are entitled to the


entire estate. (Articles 988, 989, 990, 983)

b. If they survive with legitimate descendants estate shall be


divided with the proportion of 2:1. (Articles 895, 983)

c. If they survive with ascendants if decedent is legitimate,


the legitimate ascendants are entitled to of the estate,
while the illegitimates are entitled to the other . (Article
991) If the decedent is illegitimate, ascendants are excluded;
consequently, the illegitimates are entitled to the entire
estate. (Article 993)

d. If they survive with spouse the illegitimates are entitled to


of estate, while the surviving spouse is entitled to the
other (Article 998)

e. If they survive with legitimate descendants and spouse


estate shall be divided in the proportion of 21, with the
surviving spouse getting the same share as that of a
legitimate child. (Article 999, 983)

f. If they survive with ascendants and spouse if decedent is


legitimate, the legitimate ascendants are entitled to of the
estate; the illegitimates are entitled to . (Article 1000)If the
decedent is illegitimate, the parents are excluded;
consequently, the illegitimates are entitled to of estate,
while the surviving spouse is entitled to the other . (Article
993, 994)

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Can an illegitimate child inherit ab intestato from the


legitimate children and relatives of his father or mother, and vice
versa?

No, an illegitimate child has no right to inherit ab instestato 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 (Article 992).

This is the well known, and much criticized, successional barrier


between legitimate and the illegitimate relatives of a decedent.

What are the successional rights of the surviving spouse in


intestate succession?

(1) If he or she survives alone he or she is entitled to the entire


estate (Article 995);
(2) If she or he survives with legitimate descendants he or she shall
have the same share as that of each legitimate child (Article 996);
(3) If he or she survives with ascendants if decedent is legitimate,
the legitimate ascendants are entitled to of estate, while he or
she is entitled to the other . (Article 997) If decedent is
illegitimate, the same rule applies (Article 994);
(4) If he or she survives with illegitimate children the illegitimates
are entitled to of the estate, while she or he is entitled to the
other (Article 998);
(5) If she or he survives with brothers and sisters, nephews and
nieces he or she is entitled to of the estate, while brothers and
sisters, nephews and nieces are entitled to the other (Article
1001);
(6) If he or she survives with legitimate descendants and illegitimate
children estate shall be divided in accordance with the
proportion of 2:1, with the surviving spouse getting the same share
as that of a legitimate child (Article 999, 983);
(7) If he or she survives with ascendants and illegitimate children if
decedent is legitimate, the legitimate ascendants are entitled to
of estate, the illegitimates are entitled to , and the surviving
spouse is entitled to . (Article 1000) If decedent is illegitimate,
the parents are excluded; consequently, the illegitimates are
entitled to of estate, while the surviving spouse is entitled to the
other . (Article 993, 994)

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INTESTACY: INTESTATE SHARE OF SURVIVING SPOUSE

SPOUSE AND SHARE ARTICLE


CONCURRING HEIRS
1. Spouse alone 1. All Articles 995 & 996
1. Spouse 1. Article 996
2. 1 leg. Child 2.
1. Spouse Divide the estate by Article 996
total number of
2. 2 or more leg.
children legitimate children
plus the spouse.
Spouse is considered
as one child.
1. Spouse 1. Same share as one Articles 999 & 176 FC
legitimate child 71

2. 2 shares each
2. Leg. Children
3. 1 share each
3. Illeg. children
1. Spouse 1. Article 997
2. Leg. parents 2.
1. Spouse 1. Article 991 (by
analogy)
2. Illeg. parents 2.
Article 889 (by
analogy)
1. Spouse 1. Article 998
2. Illeg. children 2.
1.Spouse 1. Article 1000
2. Leg. parents 2.
3. Illeg. Children 3.
1. Spouse 1. Articles 1001 & 994

71Formula: The legitimate and illegitimate children will divide the estate in the
proportion of 2:1. The surviving spouse will be considered as one legitimate child. If due
to the number of illegitimate children, the legitimes of the legitimate children and the
spouse are impaired, the illegitimate children will receive only what is the equivalent of
the free portion in testamentary succession.

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2. Brothers & sisters, 2. 1/2


nephews & nieces

Special case not included in the chart on intestacy:

Article 999 does not cover the situation where the mere survivors
are (1) one legitimate child; (2) one or more illegitimate children; and (3)
spouse.

If the surviving spouse is given a share equivalent to the share of


the legitimate child (which is one-half of the estate), nothing would be left
to the illegitimate children.

In order not to deprive the illegitimate children of their legitimes,


the fair solution is to apply by analogy the provisions of Article 892
under Testamentary Succession (See par. 2 Chart on Testacy). In which
situation, the surviving spouse will get a share equivalent to of the
estate. The other will go to the illegitimate children.

What conditions must exist in order that the estate of the


decedent shall be escheated in favor of the state?

a. First, the decedent must have died intestate;


b. Second, he dies seized of real and/or personal properties in
the Philippines; and
c. Third, he leaves no heir or person entitled to such real and
personal properties.

What are the rules on adopted children?

The present rules are contained in Article 189 of the Family Code:

The adopted child inherits from his adopter in exactly the same
way and to exactly the same extent as a legitimate child

The adopted child remains an heir (both compulsory and intesate)


of his parents and blood relatives, as if he had not been adopted. See
R.A. No. 8552.

What are the rules on succession to the estate of an adopted


child?

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1. Legitimate and illegitimate children and surviving spouse


- Same as Nos. 1, 2, 3, 4, 10, 11 and 12, supra.
2. Biological parents

Parents/ascendants of the estate


Adopter of the estate

3. Surviving spouse or illegitimate children + adopter

Spouse or illegitimate children of the estate


Adopter of the estate

4. Surviving spouse and illegitimate children + adopter

Spouse 1/3 of the estate


Illegitimate children 1/3 of the estate
Adopter 1/3 of the estate

5. Adopter alone the whole estate

6. Collateral blood relatives alone Civil Code on intestacy


applies. See Nos. 18 to 24, supra.

CHAPTER 4. PROVISIONS COMMON TO TESTATE


AND INTESTATE SUCCESSION

SECTION 1. RIGHT OF ACCRETION

Define accretion

Accretion is a right by virtue of which, when two or more persons


are called to the same inheritance, devise or legacy, the pat assigned to
the one who renounces or cannot receive his share, or who died before
the decedent, is added or incorporated to that of his co-heir, co-devisee,
or co-legatee (Article 1015).

When does the right of accretion take place?

a. In case of testamentary succession:

1) Predecease of the instituted heir


2) Incapacity of the instituted heir
3) Repudiation by the instituted heir
4) Non fulfillment of the suspensive condition imposed
upon the instituted heir

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5) Ineffective testamentary dispositions

NOTE: There must be renunciation, predecease, or incapacity of


one (or more but less than all) of the instituted heirs.

b. In case of intestate succession:

1) Predecease
2) Incapacity
3) Repudiated

What are the requisites, which must concur in order for


accretion to take place in testamentary succession?

a. Two or more persons are called to the same inheritance, legacy or


devise jointly or pro indiviso;
b. There is a vacancy in the inheritance, legacy or devise as a result
of predecease, incapacity, repudiation, or some other cause (Article
1016).

In intestate succession, only one requisite is necessary that there


must be a vacancy in the inheritance as a result of predecease.

Distinguish representation from accretion.

I. In testamentary succession:

a. As to legitime:

i. In case of prerdecease of an heir, there is


representation if there are children or
descendants; if none, the other heirs inherit in
their own right.
ii. In case of incapacity of an heir, the results are
the same as in predecease.
iii. In case of disinheritance of an heir, the results
are the same as in incapacity or predecease.
iv. In case of repudiation by an heir, the other heirs
inherit in their own right; no accretion.

b. As to the free portion:

Accretion takes place when the requisites in Article 1016 are


present, provided that there is no substituted, but if such requisites are
not present, the other heirs inherit in their own right.

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II. In intestate succession:


a. In case of predecease, there is representation if there are children
or descendants; if none, the heirs inherit in their own right, the
result being the same as accretion.
b. In case of incapacity, there is representation if there are children or
descendants; if none, accretion takes place.
c. In case of repudiation, there is always accretion.

NOTE: In intestacy, accretion is subordinate to representation. In


testamentary succession, accretion is subordinate to substitution, if the
testator so provides. This is because substitution is the testators express
intent, whereas accretion is merely his implied intent.

Article 1020 provides that the heirs whom the inheritance


accrues shall succeed to al the rights and obligations which the heir
who renounced or could not receive it would have had. What are the
exceptions to this rule?

a. In testamentary succession, if the testator provides otherwise;


b. If the obligation is purely personal, and hence intransmissible.

Among compulsory heirs, when does the right of accretion


take place?

Among 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. (Article 1021, par 1)

Is there accretion in legitime?

No, Article 1021, par. 2 provides that should the part repudiated
be the legitime, the other co-heirs shall succeed to it in their own right,
and not by accretion.

State the basic rules in legal succession.

a. The share of the person who repudiates the inheritance shall


always accrue to his co-heirs. (Article 1018)
b. The share of the person who repudiates shall go to his co-heirs by
their own right in the same proportion they inherit (Article 1019)
c. The heirs inherit all the rights and obligations (Article 1020)
d. 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. (Article 1021, par 1)
e. Should the part repudiated be the legitime, the other co-heirs shall
succeed to it in their own right, and not by accretion. (Article 1021)

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Is there accretion if the renunciation of inheritance was made


during the lifetime of the decedent?

No, said renunciation is void, having been done during the lifetime
of the decedent. Renunciation of future inheritance is void. (Article 905).
Accretion takes place when there is renunciation after the decedents
death, because the heir who renounced already acquired a vested right
over his share.

Suppose that the person who is incapacitated to inherit has


children, will his share accrue to his co-heirs?

No, because accretion applies only if the right of representation


would not take place. (Article 968).

SECTION 2. CAPACITY TO SUCCEED


BY WILL OR BY INTESTACY

In order that a person can inherit either by will or by


intestacy, what requisites must concur?

a. That the heir, legatee or devisee must be living or in


existence at the moment the succession opens;
b. That such heir, legatee or devisee must not be incapacitated
or disqualified by law to succeed. (Articles1024, 1025)

Can a thing or an entity which is neither natural nor a


juridical person inherit by will?

As a general rule, a thing or an entity, which is neither a natural


nor a juridical person, cannot inherit by will. This is apparent from
Article 1025, which declares that in order to be capacitated to inherit,
the heir, legatee or devisee must be living at the moment the succession
opens. There are however some well known exceptions, such as those
organizations or associations for religious, scientific, cultural,
educational, or charitable purposes mentioned in Article 1026 or the
poor in general contemplated in Article 1030.

Give and define the different kinds of incapacity.

Incapacity to succeed may either be:

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a. Absolute incapacity the incapacity of a person, whether


natural or juridical, to succeed any person in any form with
regard to any property.
b. Relative incapacity the incapacity of a person, whether
juridical or natural, to succeed by reason of a special
relation which he has to the decedent or to other persons, or
to the property disposed of.

Who are absolutely incapacitated to succeed?

a. Those not living at the moment the succession is opened


(Article 1025, par. 1);
b. Individuals, associations and corporations not permitted by
law to inherit (Article 1027, par 6); and
c. Uncertain persons. (Article 855)

What are the different kinds of relative incapacity?

a. Incapacity based on the possibility of undue influence or on


interest (Article 1027)
b. Incapacity based on public policy or morality (Articles 1028,
739)
c. Incapacity by reason of unworthiness (Article 1032); and
d. Incapacity by operation of law, such as the incapacity of the
guilty spouse to inherit ab intestato from the innocent
spouse if there is a decree of legal separation, or the
incapacity of illegitimate children and legitimate relatives of
the decedent to inherit ab intestato from each other (Article
992)

Who are incapacitated to inherit by will?

1. The priest who heard the confession of the testator during his last
illness, or the minister of the gospel who extended spiritual aid to
him during the same period.
2. The relatives of such priest or minister of the gospel within the
fourth degree, the church, order, chapter, community,
organization, or institution to which such priest or minister may
belong.
3. A guardian with respect to testamentary dispositions given by a
ward in his favor before the final accounts of 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.

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4. Any attesting witness to the execution of the will, the spouse,


parents, or children, or any one claiming under such witness,
spouse, parents, children.
5. Any physical, surgeon, nurse, health officer or druggist who took
care of the testator during his last illness.
6. Individuals, associations and corporations not permitted by law to
inherit. (Article 1027)
7. The person with whom the testator was guilty of adultery and
concubinage at the time of the execution of the will.
8. Those persons found guilty of the same criminal offense as the
testator, when the inheritance, legacy or devise is the consideration
thereof.
9. A public officer or his spouse, descendants and ascendants, when
the inheritance, legacy or devise is given to such officer or his
spouse, descendants and ascendants by reason of his office.
(Article 739)

NOTE: Those who are disqualified from receiving donations under


Article 739 are likewise disqualified from receiving testamentary
dispositions from the parties specified in that article. (Article 1028)

In Article 1027, can the incapacitated heir still entitled to his


legitime or to an intestate portion?

Yes, because this article applies only to testamentary succession. It


has no application to the legitime or to intestacy

Who are incapable of succeeding by reason of unworthiness?

1. Parents who have abandoned their children or induced their


daughters to lead a corrupt or immoral life, or attempted against
their virtue.
2. Any person who has been convicted of an attempt against the life
of the testator, his or her spouse, descendants, or ascendants.
3. Any person who has accused the testator of a crime for which the
law prescribes imprisonment of 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 latter.

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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, 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.

What is the effect of unworthiness as to the successional


rights of the heir?

Unworthiness gives rise to total disqualification, i.e., the unworthy


heir is incapacitated to succeed from the offended party by any form of
succession: the legitime, testamentary, and intestate. [Thus,
unworthiness and disinheritance have identical effects.]

How may the cause of unworthiness be erased?

1. A written condonation, or
2. The execution by the offended party of a will with knowledge of the
cause of unworthiness.

Since the acts of unworthiness are offenses directed against the


decedent, only the decedent and no other can erase the effects of such
acts of unworthiness. He can do this by pardoning the offense either
expressly or impliedly. There is an express pardon when the decedent
condones the act of unworthiness in writing. There is an implied pardon
when the testator with knowledge of the act of unworthiness, executes a
will instituting the person who has committed the offense as an heir.
(Article 1033)

What is the effect of incapacity upon compulsory heirs?

If the heir who is incapable of succeeding is a compulsory heir,


whether or not his right to the legitime is affected shall depend upon the
cause of the incapacity. If the incapacity is due to any of the causes
specified in either Article 1027 or 1028, only the free portion given to him
is affected, but not his legitime. If the incapacity however, is due to any
of the causes specified in Article 1032, it is clear that even the legitime of
the compulsory heir who has committed the act of unworthiness is
affected.

If an incapacitated heir has already taken possession of his


inheritance after the decedents death, what is the remedy of the
other heirs?

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Any person who has an interest in the succession may bring an


action against the incapacitated heir for a declaration of incapacity and
for the recovery of the inheritance, devise or legacy.

Within what period must the action be bought?

The action must be bought within five years from the time the
incapacitated heir took possession thereof. (Article 1040)

When is capacity determined?

1. General rule the time of the decedents death.


Reason: That is when succession vests (Article 777)

2. If institution is subject to a suspensive condition:

a) Time of decedents death, and


b) Time of happening of condition

3. If final judgment is a requisite of unworthiness time of final


judgment.

[Final judgment is required in Pars. 2,3 and 5 of Article 1032]

Is there representation in unworthiness?

Yes, unworthiness is one of the three occasions for representation


to operate.

What is the extent of representation in unworthiness?

It extends not only to the legitime, but also to whatever portion in


intestate succession the person represented

What is the liability of the person who is incapable of


succession who enters into the possession of the hereditary
property?

a. The obligation to return, with accessions;


b. Liability for fruits, which were received and could have been
received.

Note: These are the same rules laid down in Article 549, because
he is deemed in bad faith and the law applies to him the rules on
possession of bad faith.

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SECTION 3. ACCEPTANCE AND REPUDIATION OF INHERITANCE

Define acceptance and repudiation.

Acceptance of inheritance is the act by virtue of which the person


called to succeed by universal title by the testator or by law manifests his
will to make as his own the universality of the rights and obligations
which are transferred to him. Repudiation is the manifestation by such
heir his desire not to succeed to said universality.

Note: In all hereditary succession, three moments can be


distinguished:

a. The opening of the succession;


b. The availability of the same; and
c. The acquisition of the same.

The succession of a person is opened at the moment of his death;


it becomes available from the moment it can be accepted; and it is
acquired through acceptance.

What is the nature of acceptance and repudiation of inheritance?

It is an act, which is purely voluntary and free. (Article 1041)

When an heir accepts or repudiates his inheritance, when will


it take effect?

The effects of the acceptance or repudiation shall always retroact


to the moment of the death of the decedent. (Article 1042)

Consequences:

a. Acceptance the successor will be deemed to have owned and


possessed the property from the precise moment of the
decedents death. This rule has consequence with respect to
acquisitive prescription, capacity to succeed, representation,
etc.
b. Renunciation the renouncer is deemed never to have owned or
possessed the property (Article 533) 72. Consequently, the

72Article 533: The possession of hereditary property is deemed transmitted to the heir
without interruption, and from the moment of death of the decedent, in case the
inheritance is accepted. One who validly renounces an inheritance is deemed never to
have possessed the same.

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substitute, co-heir, or intestate heir who gets the property in


default of the renouncer is deemed to have owned and
possessed it from the moment of the decedents death.
c. Conditional institutions Even if the institution is conditional,
the principle of retroactivity still applies. Consequently, upon
the happening of the condition, the property passes to the heir
but with retroactive effect. [This is the same principle in
conditional obligations (Article 1187)] Similarly, if the condition
does not happen, the property goes to the appropriate
successor, with the same retroactive effect.

When may an heir, legatee or devisee accept or repudiate his


inheritance?

When the following requisites are present:

1. He is certain of the death of the person from whom he is to


inherit; and
2. He is certain of his right to the inheritance, legacy or devise.
(Article 1043)

What are the requisites of a valid waiver of inheritance?

For a waiver to exist, three elements are essential:

1. The existence of a right;


2. The knowledge of the existence thereof;
3. An intention to relinquish such right. [Borromeo-Herrera vs.
Borromeo, G.R. No. 41171, July 23, 1987]

Who may accept or repudiate an inheritance, legacy or devise?

As a general rule, if the heir, legatee or devisee has the free


disposal of his property [capacity], he himself may accept or repudiate
his inheritance, legacy or devise.

What are the special limitations on acceptance and repudiation


imposed by law on other cases?

1. If the beneficiary cannot freely dispose of his property as in the


case of:
1) Minors
2) Incapacitated parties
3) Deaf mutes who cannot read and write,
4) An insolvent judicially declared,
5) One under civil interdiction,

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They may accept or renounce only through their guardian or


legal representatives. However, for renunciation, judicial
authorization is necessary [court approval]. (Articles 1044, 1048)

2. If the beneficiary is the poor, the right to accept shall belong to the
persons empowered under Article 1030 [The person authorized by
the testator or in his default, the executor, or in his default, the
administrator]. As far as the right to repudiate is concerned, it may
be exercised only by the beneficiary themselves once they are
finally determined. (Article 1044) Thus, 1) these authorized
individuals can only accept, not reject the grant; 2) the person
selected as qualified recipients are, for their own part, free accept
or renounce the benefit.
3. If the beneficiary is a corporation, association, institution or entity,
the right to accept or repudiate belongs to the legal representative,
but in case of repudiation, judicial authorization is necessary.
(Article 1045)

4. If the beneficiary is a married woman of age, she may repudiate


without the consent of her husband.

How may the acceptance of an inheritance, legacy or devise be


made? What are the kinds of acceptance?

a. Express one that is made in a public or private document.


b. Tacit or implied - one resulting from acts by which the
intention to accept is necessarily implied, or which one
would have no right to do except in the capacity of an heir.
(Article 1049)]
c. Presumed when the heirs, devisees or legatees do not
signify to the court their repudiation of the inheritance
within thirty days after the court has issued an order for the
distribution of the estate. (Article 1057)

When is an inheritance deemed accepted?

It is deemed accepted in the following cases:

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 heir renounces the same, even though gratuitously, for the
benefit of one or more of his co-heir;
3. If he renounces it for a price in favor of all his co-heirs
indiscriminately; but if the renunciation should be gratuitous, and
the co-heirs in whose favor it is made are those upon whom the

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portion renounced should devolve by virtue of accretion, the


inheritance shall not be deemed accepted; (Article 1050)
4. If he performs acts of preservation or administration from which it
can be inferred that he has assumed the title or capacity of an
heir; (Article 1049)
5. If he fails to accept or repudiate within a period of thirty days after
the issuance of the order of distribution of the estate. (Article 1057)
6. When the heir demands partition of the inheritance.

How may an inheritance, legacy or devise be repudiated?

Repudiation of an inheritance, legacy or devise must always be


express.

This can be done either:

1. By means of a public instrument, or


2. By means of an authentic instrument, or
3. By means of a petition presented to the court having jurisdiction
over the testate proceedings. (Article 1051)

Note: While acceptance may be tacit or express, repudiation is


always express and never tacit. The law considers the act of repudiation
more solemn that the act of acceptance.

Suppose that an heir repudiates his inheritance to the


prejudice of his creditors, what is the remedy of the latter in order
to protect their right?

The creditors in such case may petition the court to authorize


them to accept the inheritance, legacy or devise in the name of the heir.
This acceptance, however, shall benefit them only to the extent sufficient
to cover the amount of their credits. The excess, should there be any,
shall in no case pertains to the renouncer, but shall be adjudicated to
the persons to whom it may belong in accordance with the rules
established in the Civil Code. (Article 1052)

Note: This is an instance of accion pauliana, which is the right


given to creditors to impugn or set aside contracts, transactions, or
dispositions of their debtors which will prejudice or defraud them

If the heir should die without having accepted or repudiated


the inheritance, is his right to the inheritance extinguished?

No, if the heir should die without having accepted or repudiated


the inheritance, his right shall be transmitted to his heirs. (Article 1053)

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This rule is a consequence of the principle that the right of succession


vests at the moment of death (Article 777). Therefore, the right of the heir
who dies before accepting or renouncing is already vested and is
transmitted to the heir.

But in order that this be available two requisites must concur:


a. That the inheritance is either available or transmissible;
b. The death of the heir without having accepted or repudiated the
inheritance.

What is the effect if a person who is called to the same


inheritance, as an heir by will and ab intestato, repudiates the
inheritance as a testamentary heir?

He is understood to have repudiated it in both capacities (Article


1055); that is, if he renounces as testamentary heir, he is deemed to
have renounced as intestate heir as well.

What is the effect if an heir renounces as an intestate heir


without knowledge of his being a testamentary heir?

He may still accept it in the latter capacity (Article 1055, 2 nd par);


that is, he is not deemed to have renounced as testamentary heir and
may therefore accept or renounce separately in his capacity as a
testamentary heir.

Rationale: The testamentary disposition is the express will of the


testator, whereas intestacy is only his implied will. One who renounces
the express will is deemed to have renounced the implied also, but not
the other way around.

Note: This rule is not applicable to legitime. In view of the rationale


of the rule, should the heir be simultaneously as compulsory heir and a
testamentary heir, he can accept either or both. The legitime passes not
because of any implied will or wish of the decedent but by strict
operation of law, irrespective of the decedents wishes. Thus, the term ab
intestato in this article refers solely to intestate succession.

What is the nature of the acceptance or repudiation of an


inheritance?

The acceptance or repudiation of an inheritance, once made, is


irrevocable, and cannot be impugned (Article 1056).

The exceptions are:

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a. When it was made through any of the causes that vitiate


consent. The factors vitiating consent are: 1) violence, 2)
intimidation, 3) undue influence, 4) mistake, and 5) fraud.
b. Or an unknown will appear. This applies if the newly discovered
will is subsequent to any will, which may have formed the basis
for the acceptance or renouncement. The new will, if valid and
admitted to probate, reopens the whole affair and will call for a
new acceptance or renunciation.

SECTION 5. COLLATION

What is meant by collation?

It refers to the act of restoring to the common mass of the


hereditary estate, either actually or fictitiously, any property or right,
which a compulsory heir, who succeeds with other compulsory heirs,
may have received by way of donation or any other gratuitous title from
the decedent, during the lifetime of the latter, but whish is understood
for legal purposes as an advance of his legitime.

What is the object of collation?

Its object is in order that no descendant will be deprived of his


legitime or portions corresponding to him, and to determine whether the
decedent has disposed properties more than what he can give away in
accordance with law to the prejudice of his compulsory heirs. Equality
among children will thus be insured.

What are the three kinds of collations under the law on


succession? [What are the three general acts included in collation?]

a. Collation as computation this is a simple accounting or


arithmetical process, whereby the value of all donations inter
vivos made by the decedent is added to his available assets
in order to arrive at the value of the net hereditary estate.
(Article 908)

Articles covered: 1061, 1067 (as an exception to 1061), 1071,


and 1072.

b. Collation as imputation this is the process by which


donations inter vivos made by the decedent are
correspondingly charged either to the donees legitime or
against the disposable portion.

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General rule: If compulsory heir, imputable to the legitime.


Exception: When the testator has provided otherwise.

Articles covered: 1062, 1063, 1064, 1065, 1066, 1068, 1069,


1071, 1072, and 1073.
c. Collation as return this takes place when the donation
inter vivos is found to be inofficious and so much of its value
as inofficious is returned to the decedents estate to satisfy
the legitime.

Articles covered: 1075, 1078

What is the difference between the collation referred to in


Articles 1061 to 1077 and the collation referred to in Articles 908
to 910?

Under Articles 908 to 910, collation refers to the mathematical


process of adding the value of the thing donated to the net value of the
hereditary estate. It is a process, which is applicable to all donations
inter vivos, whether to compulsory heirs or to strangers. The immediate
purpose is to determine or compute the legitime of compulsory heirs.

Under Articles 1061 to 1077, collation refers to the subsequent act of


charging or imputing the value of the thing donated against the legitime
of the compulsory heir to whom the donation is made. Thus, when the
Code says that a property or right which a compulsory heir had received
by gratuitous title from the decedent, during the lifetime of the latter,
must be brought to collation, what is meant is that the value of such
property or right shall be considered as an advance of his legitime and,
therefore, imputable against it during the partition. Hence, it is
applicable only to donations made to a compulsory heir who succeeds
with other compulsory heirs.

What properties or rights, which a compulsory heir may have


received by gratuitous title form the decedent, are not subject to
collation?

a. Property left by will (Article 1063);


b. Property which may have been donated by an
ascendant of the compulsory heir to the children
of the latter (Article 1065)

Reason: Because the said person is not the recipient of


the conveyance. The donation to the grandchild should
therefore be imputed to the free portion, since it is a
donation to a stranger.

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c. Property donated to the spouse of the


compulsory heir (Article 1066);

The donation here is one made to a stranger.

If the donation is made to the spouses jointly, one-half


belongs to the donors child and should be treated in
accordance with Article 1062 and the other half is the
property of the donors son or daughter-in-law and should
be treated as a donation to a stranger.

d. Expenses for support, education, medical


attendance even in extraordinary illness,
apprenticeship, ordinary equipment, or
customary gifts (Article 1067)

Scope of support the general coverage of support is


defined in Article 194 of the Family Code. For purposes of
this article, however, support has a more restricted meaning;
it does not include expenses for the recipients professional,
vocational, or other career, because that is governed by
Article 1068)

e. Expenses incurred by parents in giving their


children a profession, vocational, or other career
(Article 1068);

f. Wedding gifts consisting of jewelries, clothing,


and outfit, given by parents or ascendants, so
long as they do not exceed one-tenth of the
disposable portion. (Article 1070)

The gift will be imputed to the free portion to the


extent of one-tenth of the free portion. Beyond the value, the
excess will be imputable to the recipients legitime.

Common exception to all the foregoing: When the


testator provides otherwise. (Article 1062)

Note: When the law says that the above properties


shall not be brought to collation, what is meant is that their
value shall not be imputable against the legitime of the
compulsory heir to whom they are given or donated, but
against the free or disposable portion. It is only in the case of

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the fourth that the expenses are not at all imputable, even
against the free or disposable portion.

Therefore, the obligation to bring back either the


property or the value to the mass of the estate is always
present with regard to properties received by donation or by
gratuitous title. However, there may be difference in
imputation; it is either imputable to the legitime or the free
portion. Since donations or gifts by gratuitous title to
compulsory heirs are generally chargeable to the their
legitime, when the testator provides that there be no
collation, the evident meaning is that it should not be
imputed to the legitime but to the free portion. That is the
reason why if it exceeds the free portion it should be reduced
insofar as it is inofficious.

If the owner of a property sells it to his heirs and transfers


them during his lifetime, are these collationable?

No, because they did not involve gratuitous transfers of future


inheritance, hence, not collationable. Essentially, collation mandated
under Article 1061 contemplates properties conveyed inter vivos by the
decedent to an heir by way of donation or other gratuitous title.

What are the rules on imputation of donations inter vivos?

1. Donations to compulsory heirs:

a. General rule: Should be imputed to the heirs legitime


[considered as an advance on the legitime]
b. Exceptions [donation will have to be imputed to the free
portion]:

a) If the donor provides otherwise; or


b) If the donee renounces the inheritance, because in
this case the donee gives up his status as a
compulsory heir and therefore cannot be considered
as one. (Article 1062)

2. Donations inter vivos to strangers imputed to the free portion.

What are the instances when donations inter vivos are to be


imputed to the free portion?

a. When made to strangers;

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b. When made to compulsory heirs, and the donor so provides;


c. When made to compulsory heirs who renounce the
inheritance;
d. When in excess of the compulsory heirs legitime, as to the
excess.

What is the obligation of grandchildren who inherit by


representation concurrently with children (uncles and aunts) who
are inheriting in their own right? (Article 1064)

The grandchildren shall bring to collation:


1. Whatever the parents whom they are
representing would have been obliged to collate;
and
2. Whatever they themselves have received from
the grandparent by gratuitous title (subject to
the same rules and exceptions laid down in
Article 1062).

Cases where the grandchildren inherit in their own right as would


happen in case of repudiation by the parents - the said grandchildren
shall be bound to collate what they themselves have received from the
grandparent during his lifetime and not the donation given to their father
since as to that portion, it is equivalent to a donation made to a stranger
and therefore imputable to the free portion.

What is the rule as to sums paid by a parent in satisfaction of


the debts of his children, election expenses, fines, and similar
expenses? (Article 1069)

They shall be brought to collation, meaning, it should be imputable


to the childs legitime.

What value should be considered in the computation and


imputation? (Article 1071)

Only the value of the thing donated at the time the donation was
made should be considered in the computation of the donors estate.

Reason: Any appreciation or depreciation of the thing after that


time should be for the donees account, since donation transfers
ownership to him. Thus any accretion should belong to him.

What are rights of the co-heirs if the donees share shall be


reduced by an amount equal to that already received by him?
(Article 1073 and 1074)

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1) The donees co-heirs shall receive an equivalent, as


much as possible, in property of the same nature,
class and quality.
2) If this is not possible

1. If the property was immovable:

a. The co-heirs shall be entitled to receive its


equivalent in cash or securities, at the rate
of quotation.
b. Should there be neither cash nor
marketable securities in the estate, so
much of the other property as may be
necessary shall be sold to public autction.

2. If the property was movable:

(1) The co-heirs shall only have a right to select an


equivalent of other personal property of the
inheritance at its just price.

Who owns the fruits and interests of collationable properties?


(Article 1075)

(1) The entirety of the fruits and interests shall pertain to the
compulsory heir, only if the donation is totally inofficious.
(2) If the donation is only partially inofficious, the right to the fruits
and interests shall be probated between the compulsory heir and
the donee, in proportion to their respective interests over the
property.

If the donation is totally inofficious and the thing has to be


returned in its entirety, what are the obligations of the co-heirs to
the donee? (Article 1076)

1. Reimbursement to the full extent of the necessary expenses


incurred (The same rule in Article 546, par. 1) 73
2. Reimbursement to the full extent of useful expenses provided that
the improvement is still in existence. (The same rule in Article 546,
par. 2)74

73Article 546, par. 1. Necessary expenses shall be refunded to every possessor; but only
the possessor in good faith may retain the thing until he has been reimbursed therefore.
74Article 546, par 2. Useful expenses shall be refunded only to the possessor in good

faith with the same right of retention, the person who has defeated him in the

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3. No reimbursement as to ornamental expenses, but right of removal


is granted if no injury to the estate will be cause. (Article 548)75

If the donation is partially inofficious and the thing has to be


returned only in part, what are the obligations of the co-heirs to the
donee?

a. Partial reimbursement of necessary and useful expenses, in


proportion to the value to be returned.
b. As to ornamental expenses, the same rule as in total return
applies, unless the property is physically divided and the ornament
happens to be located in the portion assigned to him, in which
case he will have all the rights of ownership.

SECTION 6. PARTITION AND DISTRIBUTION OF ESTATE

I. PARTITION

Define partition.

Partition, in general, is the separation, division and assignment of


a thing held in common among those to whom it may belong. The thing
itself may be divided, or its value. (Article 1079)

Every act, which is intended to put an end to indivision among co-


heirs and legatees or devisees, is deemed to be a partition, although it
should purport to be a sale, an exchange, a compromise, or any other
transaction. (Article 1082)

What are the different kinds of partition?

a. As regards its extent:

a) Total when all the things comprised in the whole estate are
divided among all of the participants or co-owners.
b) Partial when some of the things are divided among all or
some of the participants or co-owners, the rest remaining in
a state of indivision or community ownership.

possession having the option of refunding the amount of the expenses or of paying the
increase in value which the thing may have acquired by reason thereof.
75Article 548. Expenses for pure luxury or mere pleasure shall not be refunded to the

possessor in good faith; but he may remove the ornaments with which he has
embellished the principal thing if it suffers no injury thereby, and if his successor in the
possession does not prefer to refund the amount expended.

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b. As regards its duration:

i. Provisional when the division is merely temporary or


transitory until a final or definite division is made.
ii. Definite when it is stable, final and absolute.

c. As regards the manner or method by which it is done:

i. Extra-judicial when it is effected by the testator


himself, or by some person named by such testator, or
by the participants or co-owners themselves amicably
or by common accord.

a. Made by the testator (Article 1080)


b. Made by the decedent in an act inter vivos
(Article 1080)
c. Made by the heirs themselves (Rule 74,
Sec., Rules of Court)
d. Made by a third person entrusted by the
testator or decedent (Article 1081, par. 1).

ii. Judicial when the court intervenes in the division.

What are the four ways by which the estate of the decedent
may be partitioned under the Rules of Court?

a. By extra-judicial settlement (Rule 74, Sec. 1)


b. By ordinary action for partition (Rule 74, Sec. 1)
c. By judicial summary settlement (Rule 74, Sec. 2)
d. By administration proceedings (Rule 79 to Rule
91)

The last three are judicial in character.

Who may effect the partition of the decedents estate?

a. By the decedent himself during his lifetime by an act inter


vivos or by will (Article 1080);
b. By a third person designated by the decedent by means of an
act inter vivos or by will (Article 1081); or
c. By the heirs themselves (Articles 1083, 1084); or
d. By a competent court in accordance with the Rules of Court
(Rules 74-91)

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If the decedent himself partitions his estate by an act inter


vivos, is a will necessary for the validity of the partition?

A mere partition inter vivos which does not observe the formalities
of a will cannot, by itself, make testamentary dispositions, because that
would circumvent the requirement of law that dispositions mortis causa
can be made only by means of a will. A person cannot, in the guise of
making a partition, make disposition of property to take effect upon his
death.

What is the nature of partition made by the causante


(decedent):
1. It takes effect only upon death;
2. It is revocable as long as the causante is alive; hence the causante
can change or modify it, or even rescind it during his lifetime.

How may the causante make the partition?

1. By will, or
2. By act inter vivos

What is the limitation on partition by causante?

The legitimes of the causantes compulsory heirs cannot be


impaired by partition made by him, whether in a will or by an act inter
vivos.

What is the rule as to partition to keep an enterprise intact?

A parent who, in the interest of his or her family, desires to keep


any agricultural, industrial, or manufacturing enterprise intact, may
partition his or her estate by an act inter vivos, or by will, by ordering
that the legitime of the other children to whom the property is not
assigned, be paid in cash (Article 1080).

Rules:

1. Only the parent is allowed the privilege of this Article (Article 1080)
2. This privilege can be exercised only if enough cash or other
property is available to satisfy the legitimes of the other children.
3. Under no circumstances should the legitimes be impaired.

Is it possible for the testator to prohibit the partition of his


entire estate even if there are compulsory heirs?

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Yes, but in such a case the period of indivision shall not exceed 20
years. This power of the testator applies even to the legitime of
compulsory heirs. (Article 1083)

Who can demand the partition of the decedents estate after


his death?

1. By any compulsory heir, or


2. By any voluntary heir, or
3. By any legatee or devisee, or
4. By any person who has acquired an interest in the estate.

When may an heir demand the division of the estate?

Every co-heir has a right to demand the division of the estate at


any time (Article 1083). This is the same rule laid down in Article 494,
par. 1.76

What are the instances when partition cannot be demanded?

1. When the partition has been expressly prohibited by the testator


for a period which shall not exceed 20 years (Article 1983)

Exception: Despite this imposed indivision, partition may be


demanded:

i. When any of the causes for the dissolution of a


partnership occurs (Articles 1830 1831)
ii. When the court finds compelling reason for partition.

2. When the co-heirs have agreed that the estate shall not be divided
for a period, which shall not exceed 10 years, renewable for
another 10 years. (Article 494)

a. When the partition is prohibited by law (Article 494)


b. When to partition the estate would render it unserviceable
for the use for which it is intended. (Article 494)

3. Where there are two or more heirs, the whole estate of the
decedent is, before its partition, owned in common by such heirs,
subject to the payment of the debts of the deceased. (Article 1078)

76Article494, par. 1. No co-owner shall be obliged to remain in the co-ownership. Each


co-owner may demand at any time the partition of the thing owned in common, in so far
as his share is concerned.

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The immediate effect of the decedents death is the vesting of


the success ional rights of the successors because the rights to the
succession are transmitted from the moment of the death of the
decedent (Article 777). The estate however is a mass of properties.
The immediate effect, therefore, of the decedents death is a co-
ownership of the heirs over the entire mass. Partition ends the co-
ownership among the co-heirs as to the thing partitioned.

What are the kinds of partition?

a. Actual physical division of the thing among the co-heirs;


b. Constructive any act, other than physical division, which
terminates the co-ownership, such as:

i. Every act which is intended to put an end to indivision


among co-heirs and legatees or devisees is deemed to
be a partition, although it should purport to be a sale,
an exchange, a compromise, or any other transaction
(Article 1082)
ii. Sale of the thing and division of the proceeds among
the heirs, resorted to when the thing is essentially
indivisible or if physical partition will so diminish its
value that it becomes unserviceable or useless (Article
1086)

In institutions with a suspensive condition, when can the


voluntary heirs demand partition?

1. They cannot demand a partition until the


condition has been fulfilled;
2. But the other co-heirs may demand it by giving
sufficient security for the rights which the said
voluntary heirs may have in case the condition
should be complied with, and until it is known
that the condition has not been fulfilled or can
never be complied with, the partition shall be
understood to be provisional. (Article 1084)

How is equality among heirs provided for under Article 1985?

1. Quantitative the shares of the co-heirs are not necessarily equal


in value, but are determined by law and by will
2. Qualitative whatever the aliquot portions be, however, the law
mandates equality in nature, kind and quality. [Thus if an heir gets
a parcel of land, the other heirs should also be given parcels of
land.]

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What are the exceptions or qualifications to the requirement of


qualitative equality?

1. If the causante has made the partition himself;


2. If the co-heirs agree otherwise;
3. If qualitative equality is impossible or impracticable.

If an heir sells his hereditary right to a stranger before the


partition of the decedents estate, what is the right given to the
other co-heirs?
The co-heirs in such a case are subrogated to the rights of the
purchaser by reimbursing him for the price of the sale, provided they do
so within the period of one month from the time they were notified in
writing of the sale by the vendor. (Article 1088)

What requisites must concur in order that the right of legal


redemption may be availed of?

1. There must be several co-heirs;


2. One of them sells his hereditary rights
3. The buyer must be a stranger;
4. The sale must be before partition
5. At least one co-heir must demand the redemption.
6. The right is exercised within a period of one month to be counted
from the time they were notified in writing by the co-heir vendor;
and
7. The vendee is reimbursed for the price of the sale.

Note:

>Sale must be made to stranger a stranger within the meaning of


this article is anyone who is not a co-heir. (Basa vs, Aguilar, 117
SCRA 128)
>When right of redemption may be exercised the right may be
exercised only before partition, not after. (Caro vs, CA, 113 SCRA
10)
>Written notice is required without it period does not commence
to run (Garcia vs. Calaliman, 172 SCRA 201)

What is the rule if a thing is indivisible, or would be much


impaired by its being divided? (Article 1086)

1. The thing may be adjudicated to one of the co-heirs, provided he


shall pay the others the excess in cash;

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2. Sell the thing in a public auction if any of the heirs should demand
that the thing be sold at public auction, provided that strangers
are allowed to bid.

Upon partition, what are the obligations of the co-heirs among


each other? (Article 1087)

The co-heirs shall reimburse one another:

1. For the income and fruits which each one of them may have
received from any property of the estate
2. For any useful and necessary expenses made upon such properties
3. For any damage thereto through malice or neglect.

The same rule in co-ownership (Article 500)

To whom shall the title be delivered if it comprises two or


more pieces of land, which have been assigned to two or more co-
heirs, or when it covers one piece of land, which has been divided
between two or more co-heirs?

1. The title shall be delivered to the one having the largest interest
and authentic copies of the title shall be furnished to the other heir
at the expense of the estate.
2. If the interest of each co-heir should be the same, the oldest shall
have the title. (Article 1090)

Note: This article only provides for the right over the
document. The co-heirs, however, have the right to have the title
divided into individual titles, separate for each of the owners to
correspond to the separate portions held by them respectively.

II. EFFECTS OF PARTITION

What is the obligation of the co-heirs after the partition has


been made?

The co-heirs are reciprocally bound to warrant the title to, and
quality of, each property adjudicated. (Article 1092)

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Partition among co-heirs imposes upon them the same mutual


obligation of warranties imposed among co-owners in general (Article
501)77

Rules on warranties: Articles 1547-1580 (Title on Sales, insofar as


they are not inconsistent with the rules given in this subsection)

What is the extent of liability of the co-heirs on warranty?

The reciprocal obligation of warranty shall be proportionate to the


respective hereditary shares of the co-heirs. (Article 1093)

What is the effect of the mutual warranty of the co-heirs if any


of them is insolvent?
The other co-heirs shall be liable for his part in the same
proportion, deducting the part corresponding to the one who should be
indemnified. (Article 1093)

What is the right of the heirs who pay for the insolvent heir?

Those who pay for the insolvent heir shall have a right of action
against him for reimbursement, should his financial condition improve.
(Article 1093, par. 2)

Exception [When there is nor right to be reimbursed]

When the insolvency has been judicially declared, since judicially


declared insolvency extinguishes all obligations.

What is the period within which to file an action to enforce


the warranty among co-heirs?

It must be brought within ten years from the right of action


accrues. (Article 1094)

If a credit should be assigned as collectible, what is the effect


of the subsequent insolvency of the debtors estate on the co-heirs?

The co-heirs shall not be liable for the subsequent insolvency of


the debtor of the estate, but only for his insolvency at the time the
partition is made (Article 1095). [The warranty covers only insolvency of
the decedents debtor at the time of partition, not subsequent insolvency,
for which the co-heir takes the risk.]

77Article 501. Every co-owner shall, after partition, be liable for defects of title and
quality of the portion assigned to each of the co-owners.

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What is the period within which the warranty of the solvency


of the debtor can be enforced?

It can only be enforced during the five years following the partition.
(Article 1095, par. 2)

Warranty for good debts that the debtor is solvent at the time of
the partition (not later). The warranty is good for five years following the
date of the partition.

There is no warranty for bad debts an heir accepts them at his


own risk.

Are co-heirs bound to warrant bad debts?

Co-heirs do not warrant bad debts if:

1. So known to the distributee; and


2. Accepted by the distributee. (Article 1095, par. 3)

When may the obligation of warranty among co-heirs cease?

1. When the testator himself has made the partition, unless it


appears, or it may be reasonably presumed, that his intention was
otherwise, but the legitime shall always remain unimpaired;
2. When it has been so expressly stipulated in the agreement of
partition, unless there has been bad faith;
3. When the eviction is due to a cause subsequent to the partition, or
has been caused by the fault of the distributee of the property.
(Article 1096)
4. Supervening event causing the loss or the diminution in value
5. Waiver

III. RESCISSION AND NULLITY OF PARTITION

What are the causes of rescission or annulment of a partition?

A partition may be rescinded or annulled for the same causes as


contracts. (Article 1097)

1. Causes for annulment: Article 1390


2. Causes for rescission: Article 1381 and Article 1098 (lesion)

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When may a partition, judicial or extra-judicial be rescinded


on account of lesion?

When any one of the co-heirs received things whose value of less,
by at least one-fourth, than the share to which he is entitled, considering
the value of the things at the time they were adjudicated. (Article 1098)

Lesion is economic injury where the party receives less than he is


entitled to receive.

Note the slight variation from pars. 1 & 2 of Article 1381, which
specifies more than one-fourth, while Article 1098, provides for a
minimum lesion for rescission, which is one-fourth (25%). In cases of
partition of the inheritance, Article 1098 applies.

What is the exception to the rule that partition can be


impugned on the ground of lesion?

A partition made by the testator himself is not subject to rescission


even in case of lesion in the amount specified in Article 1098. (Article
1099)

Exceptions:

1. Impairment of the legitime (Even if lesion is less than one-fourth)


2. Mistake by the testator or vitiation of his intent. (Article 1099)

What is the prescriptive period for the action of rescission on


account of lesion?

Four years from the time the partition was made (Article 1100).
This is the same period laid down in the general rule of rescission of
contracts (Article 1389)

What are the options of the heir who is sued for rescission?

1. To have a re-partition [In which case, the old partition will not be
disturbed in its entirety but it shall only be between those who
have been prejudiced and those who have received more than their
just share.], or
2. To indemnify the co-heir the amount of the lesion suffered, by
payment in cash or by the delivery of a thing in the same kind and
quality as that awarded to the plaintiff (Article 1101).

Note that it is the co-heir who is sued for rescission who has the
option.

By: Kathryn Pineda Dela Serna


2012 Notes Compilations onWills and Succession 281

If the property given to the heir demanding the rescission consists


of real property and said heir has alienated in whole or a considerable
part of the real property, he cannot maintain an action for rescission on
the ground of lesion, but he shall have a right to be indemnified in cash.
(Article 1102)

What is the effect if there is a preterition of any of the


compulsory heirs in the partition of the decedents estate?

A partition made with preterition of any of the compulsory heirs


shall not be rescinded, unless it is proved that there was bad faith or
fraud on the part of the other persons interested; but the latter shall be
proportionately obliged to pay to the person omitted the share which
belongs to him (Article 1104)

What is the effect if the partition includes a person believed to


be an heir, but who is not?

A partition, which includes a person, believed to be an heir, but


who is not, shall be void only with respect to such person. (Article 1105)

By: Kathryn Pineda Dela Serna