1.

Modes of transmitting ownership:

a. Law
b. Donation
c. Testate and intestate succession
d. Tradition
(Art. 712, New Civil Code)

Succession defined:
Succession is a mode of acquisition by virtue of which
the property, rights and obligations to the extent of the
value of the inheritance, of a person are transmitted
through his death to another or others either by his will or
by operation of law (Art. 774).

Elements:
1. Mode of acquisition (ownership)
2. Transfer of property, rights and obligations to the
extent of the value of the inheritance of a person
(called grantor or transferor, decedent, testator, or
intestate))
3. Transmission thru death (not life)
4. Transmission to another (called grantee, or
transferee, heir, legatee or devisee)
5. By will or by operation of law (testamentary or legal
succession).
Is the human corpse a property?
NOTE: The human corpse is not property and is
therefore not part of the estate. This is without
prejudice to R.A. No. 349, as amended by R.A. No.
1056 allowing under certain conditions the granting
to certain entities of a person’s organs after death.
Basis of succession:
The basis is the necessity of perpetuating man’s
patrimony beyond the limits of human existence. This
necessity is in turn, based on the following: first, the
necessity of giving stability to the family, and second, the
necessity of giving stability to the social economy (4
Castan, 6th Ed., p. 148).
Inheritance distinguished from succession:
Inheritance may be defined as the universality of all
the 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.
Inheritance is merely the objective element of
succession.
Obligations that survive:
1. Obligations arising from contracts;
2. Funeral expenses of the decedent;
3. Expenses for the last illness; and
4. Money judgment
Obligations not extinguished by death:
1. General rule: All obligations are transmissible
(Araneta vs. Montelibano).
2. Exceptions: (1) Unless purely personal (like the
obligation to support); (2) Non-transferable by law
 or contract, hence, an heir still pays for the debts
of his deceased father, but only if same can be
covered by the inheritance.

2. Terms
a. Decedent- applies to deceased person whose property is
transmitted through succession, whether he left a will or not.
b. Testator-applies to a person who left a will
Inheritance- all property, rights and obligations of a person which are
not extinguished by his death. (Art. 776, NCC) Rights extinguished
by death:
1. Intransmissible personal rights because of their
nature ( family rights, marital and parental
authority, support, action for legal separation,
partnership, agency, life annuity);
2. Right to claim acknowledgment or recognition as a
natural child (Conde vs Abaya, 13 Phil 240);
3. Right to hold public or private office (Hu Niu v.
Collector of Customs, 36 Phil 433).
c.
i. The obligations of a deceased are only to the extent of
the value of the inheritance left by him to his heirs.
ii. In general, obligations are transmissible, unless purely
personal like obligations between husband and wife, and
those non-transferable by law or contract.
iii. Examples of rights extinguished by death:
1. Personal rights like marital rights, parental
authority, support, action for legal separation,
partnership, agency.
2. Right to recognition of a legitimate child:
 Except when a action has already been filed.
(Art. 173, Family Code)

Also, action is transmitted to heirs of child

dies during minority or in a state of insanity.
Heirs have 5 years to file the action. (Art. 173
Family Code)

Action already commenced survives,

notwithstanding death of either party. (id.)

Action for adoption is not extinguished by

death of adopter. (Sec. 13, RA 8552)

3. Right to hold office or job, public or private

4. Right of a lawyer to represent client

Rights not extinguished by death:

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 validand enforceable under the Statute of
Frauds (Araneta vs. Montelibano, 14 Phil 117);
3. Right to continue a lease contract either as a lessor
or lease unless otherwise provided for in the
contract;
4. Property right in an insurance policy ((the interest of
a beneficiary in a life insurance policy) is a vested
interest (provided the designation of the beneficiary
is irrevocable) and as such is transmissible by
hereditary succession, unless by the terms of the
policy it is irrevocable (belden vs Belden 183 N.Y.S.
850; Anderson vs. Grossbeck, 23 Col. 3).
 NOTE: Generally the life insurance policy or the
right to the indemnity belongs to the beneficiary,
transmissible to his own heirs and NOT to the
insured or the latter’s own heirs.
Art. 777 – to prevent vacuum in ownership
Conditions for the transmission of successional
rights/ Requisites for succession mortis causa:
1. That indeed there has been a death (either actual or
presumed);
2. That the rights or properties are indeed
transmissible or descendible;
3. That the transferee is still alive (no predecease),
willing (no repudiation), is capacitated to inherit

Presumed Death:
1. Ordinary presumption because of Ordinary
absence : An absentee (who disappears under
normal conditions, there being no danger or idea of
death) shall be presumed dead for the purpose of
opening his succession – at the end of ten years
(at the end of five years in case he disappeared after
the age of seventy five; Art. 390. Here, the death is
presumed to have occurred at the end of the 10 year
or 5 year period as the case may be.
2. Extraordinary presumption because of
extraordinary or qualified absence (Art. 391)
because of great probability of death.
The law says that the following shall be presumed
dead for all purposes including the division of the
estate among the heirs:
(a) A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who
 has not been heard of for four years since the loss
of the vessel or aeroplane;
(b) A person in the armed forces who has taken
part in war, and has been missing for four years;
(c)A person who has been in danger of death under
other circumstances and his existence has not
been known for four years.
NOTE: under this absence, the person is
presumed to have died at the time of the
disappearance, i.e., at the time the calamity took
place.

Effect of Absentees return or appearance:

If the absentee appears, or without appearing his
existence is proved, 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.
Future inheritance:
While it is true that “future” inheritance cannot be
sold, it is valid for an heir, after the testator’s death, to sell
his share in the estate even pending its liquidation, for here
the inheritance is already “present” and not “future”
(Mondonido vs. Roda. L-5561. Jan. 26, 1954). “Future
inheritance” is that which may eventually be received
from a person still alive. It is any property or right not yet
in existence or not yet capable of determination at the time
the contract is made which a person may acquire by
succession.
 3. When are rights to succession transmitted: Rights to succession are
transmitted from the moment of the death of the decedent (Art.
777, NCC)
a. Heirs become owners on date of decedent’s death although
properties are delivered to them later.
b. Both acceptance and repudiation retroact to the moment of
death

4. Kinds of succession: Succession may be:

a. Testamentary (by will or codicil),
b. Legal or intestate (by law),
c. Mixed (partly by will and party by operation of law) (Art. 778,
NCC)

Give and define the different kinds of succession.

(1) Mixed succession: The decedent may have died
partly testate and partly intestate. In so far as the will
disposes of certain properties, this generally the law
that shall govern.
Other kinds of succession:
(a) Compulsory (or necessary or forced) succession –
or succession to the legitime
(b) Contractual succession – this happens when a
future husband and future wife give to each other in
their marriage settlement as much of their future
property, in the event of death, as they may validly
dispose of in a will (Art. 130).
Art. 778, 779. Testamentary succession is that which
results from the designation of an heir, made in a will
executed in the form prescribed by law.
 (c)Will or codicil may be (1) notarial (ordinary, attested,
or acknowledged); (2) holographic (handwritten by
the testator from beginning to end, complete with
date and signature).
Art. 780.Mixed succession is that effected partly by will
and partly by operation of law.

5. What inheritance includes: Not only transmissible rights and

obligations at the time of death, but also those which accrued since
the opening of the succession (Art. 781, NCC).
Example: Alluvium, bot not properties acquired after this will
was made.

Art. 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 succession.
After acquired properties:
Property acquired by the testator between the time the
will is made and the time he dies, is not given at the
designated heir unless the contrary has been expressly
provided (Art. 793). Such property is acquired prior to the
death, not afterwards. 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
testator’s intention. It is evident that this rule is
applicable only to legacies and devises, and not to
institution of heirs.
 6. Heir, devisee, legatee distinguished (Art. 782, NCC):
Heir-called to the succession by will or by the operation of law; also
one who succeeds by universal title or to all or a fraction or aliquot
part of the estate. May be compulsory or voluntary.
Heir is compulsory as to legitime
Heir is voluntary, as when a friend or a child is given part of the
estate to be taken from the free portion.
Devisee: One given a gift of real property in a will
Legatee: One given a gift of personal property in a will.

Art. 782. An heir is a person called to the succession

either by the provision of a will or by operation of law.
What is meant by heirs, legatees and devisees?
Devisees and legatees are persons to whom gifts of real
and personal property are respectively given by virtue of a
will.
Heirs: succeed by universal title, i.e., to ALL or a
FRACTION or ALIQUOT PART of the properties, rights or
obligations.

7. Importance of distinction between heir and legatee/devisee

a. There are heirs in testate (compulsory heirs) and intestate
(legal or intestate heirs) succession.
Legatees and devisees only is testamentary succession.
b. In preterition, an instituted heir gets nothing, while a legatee
or devisee gets property given to him as long as legitime is not
impaired. (Art. 854, NCC)
 8. Dual status of heir:
a. In a will, a compulsory heir may be given other than his
legitime.
b. He is a compulsory heir with respect to the legitime. He is a
voluntary heir with respect to the excess.
c. If a compulsory heir dies ahead of the testator, his legitime
goes to his child to his child by representation.

The child of a voluntary heir who predeceases the testator

gets nothing, because there is no representation among
voluntary heirs nor in the free portion.

Importance of distinction:
While in general, there is no difference in capacity,
effect and solemnities, still one important distinction must
be pointed out, namely – that while in preterition (Art. 854)
an instituted voluntary heir gets nothing, a legatee or
devisee still gets the property given as long as the legitime
is not impaired (Art. 854).
In case of imperfect or defective disinheritance: The
effect is to annul the institution of heirs but legacies and
devises shall be valid in so far as they are not inofficious
(Art. 918)
Note: Art. 918 (disinheritance) provide cases where the
institution of heirs is VOID, but the legacies remain valid.

Possibility of dual status:

 If in a will, a compulsory heir is given more than his
legitime, he assumes a dual status:
(a) In so far as his legitime is concerned, he is a
compulsory heir;
(b) In so far 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 (Art. 856).
Do the heirs have a right on the property which was
allegedly allotted as an advance grant of their
inheritance?
The right of the heirs to inherit from their parents is
merely inchoate and is vested only upon the latter’s
demise. Indisputably, rights of succession are transmitted
only from the moment of death of the decedent. Assuming
that there was an “allotment” of inheritance, ownership
nonetheless remained with the parents. Moreover, an
intention to confer title to certain persons in the future is
not inconsistent with the owner’s taking back possession in
the meantime for any reason deemed sufficient (Macasaet
vs. Macasaet, G.R. Nos. 154391-92, Sept. 30, 2004.

WILLS
 1. Definition of will: An act whereby a person is permitted, with
formalities prescribed by law, to control a certain degree the
disposition of his estate, to take effect after his death. (Art. 783,
NCC)

Testamentary succession:
Wills- Art. 783 – 795
What is a will? 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 (Art. 783).
What law shall determine the validity of a will? The
validity of a will depends upon the observance of the law at
the time it is made (Art. 795, Vda. De Enriquez vs.
Abadia, 95 Phil 627).
What are the characteristics of a will?
(1) It is strictly a personal act;
(2) It is a unilateral and individual act;
(3) It is a free and voluntary act;
(4) It is a formal and solemn act;
(5) It is a disposition of property;
(6) It is an act mortis causa; and
(7) It is ambulatory and revocable
Characteristics of a will:

a. Statutory
b. Unilateral (Heirs can’t accept while testator is still alive)
 c. Solemn or formal
d. There must be animus testandi
e. Testator must have testamentary capacity
f. Strictly personal
g. Effective mortis causa.
h. Essential revocable or ambulatory.
Meaning of strictly personal (Art 784, NCC):
i. Cannot be left in whole or in part to the discretion of
third person.
ii. Duration or efficiency of designation of heirs, devisees,
or legatees or the portions given to them, cannot be left
to the discretion of a third person.
iii. But testators may entrust to a third person the
distribution of specific property or sums of money left to
a specified property or sums of money left to a specified
class or cause and the designation of persons,
institutions, and establishments to which property or
money to be given (Art. 786, NCC). Ex: Charitable
institutions
2000 Law of San Sebastian College
2. Interpretation of wills:
a. If it admits of Different interpretation, in case of doubt,
interpretation which will make the dispositions operative shall
be preferred (Art. 788, NCC), because testacy is preferred to
intestacy.
b. Ambiguities in a will:
i. Latent or intrinsic: Does not appear of the will and is
discovered only by extrinsic evidence.

Ex: I institute by sister (But I have two sisters)

I give my piano to Lisa (But I have two pianos)

 ii. Patent or extrinsic:Appears on the face of the will itself.

EX: I institute one of my three nephews (but the nephew was not
named)

I give X one of my three cars (without stating which car)

c. How to resolve ambiguities:

i. Latent or intrinsic: From context will or extrinsic
evidence, excluding oral declaration of testator (Art. 789,
NCC)
ii. Patents or extrinsic: Consider the words of the will or the
circumstances under which the will was made, but not
the oral declarations of the testator (id)

Why can’t the declarations of the testator be

considered?

Because to do so can result to fraud, as the words

of dead man

d. Words are to be interpreted in their ordinary or grammatical

sense, not in the technical sense (Art 790, NCC).
Examples: Natural child means child by nature
Use and possession of property only means usufruct, not
ownership.
e. But technical words used are to be taken in its technical sense,
unless
i. A contrary appear from the context, or
ii. It satisfactorily appears that will was drawn solely by the
testator, and he was unacquainted with such technical
sense (Art 790, id)

Example: “Ampon” means de facto adaptation, not legal

(judicial) adaptation
 f. After-acquired properties go to intestate heirs.
g. Rules of interpretation apply to institutions of heirs as well as
of legatees and devisees.
3. Validity of wills:
a. As to form (extrinsic validity) : depends on the law in at the
time of execution ( Art 795, NCC)
b. Intrinsic validity: Governed by the law in force at the time of
decedent’s death.
i. Legislature cannot pass a law validating a void will, like
holographic will executed before the New Civil Code,
because the Old Civil Code recognize holographic wills.
ii. Suppose the testator had no legitimate ascendants,
descendants, or wife. He died in 1949. He has a
recognized spurious child, but made a will leaving his
properties to a friend. His estate was settled in 1951. Is
this valid?
1. The will is valid because the intrinsic validity of a
will is governed by the law at the time of the
testator’s death. A spurious child has no hereditary
rights under the old Civil Code.
2. But if the testator had died in 1951, the spurious
child would get his legitime even if born before the
New Civil Code, because succession is determined
at the time of death of decedent.

Who can make a will?

(1) A person who is at least 18 years of age;
(2) A person of sound mind at the time the will is
made (Arts. 796-798)
Testamentary capacity and intent (Arts. 796-803)
What is a testamentary power? It is the statutory right
to dispose of property by acts effective mortis causa.
What is testamentary capacity? It is the right to make a
will provided certain conditions are complied with like: (1)
the testator is not prohibited by law to make a will; (2) the
testator is at least 18 years of age; and (3) testator is of
sound mind.
Note: In American law, there is a well-recognized
distinction between testamentary capacity and
testamentary power. The first concerns the ability of the
testator, while the second involves privilege under the law
(57 Am Jur., Secs. 52, 74-75).
Active testamentary capacity is the capacity to make a
will.
Passive testamentary capacity is the capacity to receive
by virtue of a will.
May a convict under civil interdiction make a will? Yes.
This is because civil interdiction prohibits a disposition of
property intervivos not mortis causa (Art. 34 RPC).
Is there a distinction between senility and senile
dementia? Yes. Senility is infirmity of old age. It does not
result in loss of testamentary capacity. Senile dementia
which is the decay of mental faculties, if advanced or
absolute, may produce unsoundness of mind resulting in
testamentary incapacity (Crisostomo vs Maclang, [CA] 45
O.G., p.2106).
A minor executed a last will and testament. He died at
the age of 50, after which his will was submitted to
probate. Decide. The will is void. Under the law, a person
who is a minor cannot execute a will. His supervening
capacity cannot validate a void will (Art. 801).
At the time Z executed his will, he was sane. One day
thereafter, he became insane. What is the effect of A’s
subsequent insanity? The will is not voided. The rule is
that supervening incapacity does not invalidate an effective
will (Art. 801).
State the rule on soundness of mind.
(1) To be of sound mind, it is not necessary that the
testator be in 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 (Art. 799)
(2) The law presumes that a person is of sound mind
in the absence of the contrary.
The burden of proof that the testator was not of sound
mind at the time of making his disposition is on the
person who opposes the probate of the will; but if the
testator, one month, or les, 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 (Art. 800;
Torres vs Lopez, 48 Phil 772).
 How do you classify wills according to their forms?
A will may either ordinary or holographic depending
upon the formalities and solemnities which are
observed by the testator in its execution.
An ordinary or notarial will is one which is executed in
accordance with the formalities prescribed by Arts.
804-808 of the CC.

4. Testamentary capacity: (Art. 796 and ff., NCC)

Active-Capacity to make a will

Passive- Capacity to receive property under a will.

Who can make a will:

i. Those not expressly prohibited by law. (Art 796, NCC)

1. Juridical persons cannot make wills; this evident
from the requirement of soundness of mind.
2. Convicts under civil interdiction can make wills
3. Spendthrifts can make wills
ii. Must be 18 years of age (Art 797, NCC).
1. Thus, those below 18 cannot make wills
2. But sex is immaterial
iii. Must be sound of mind a the time of the will’s execution.
Meaning, the testator knows
1. The nature of the estate to be distributed
2. The proper objects of his bounty.
3. The character of the testamentary act.
 Old age alone (senility) is not enough. Must be
senile dementia (decay of mental faculties due to
old age)

Presumption is sanity (Art. 800, NCC)

But there is also presumption of sanity, if one

month or less before the making of the will, the
testator was publicly known to be insane (Art. 800,
id)

Supervening incapacity does not invalidate a will;

nor supervening capacity validate a will (Art 801,
NCC)

5. Forms of Wills:Notarial and Holographic

a. Notaria will
i. Must be writing (Art. 804, NCC)
ii. Must be executed in a language or dialect known to the
testator (Art 804, id)
Witnesses do not have to know the dialect or
language of the will, but the attestation clause (not
the will) must be interpreted them (Art. 804, id)
iii. Must be signed at the end by the testator or another
person in his presence and his express direction (Art.
805, id)
Person Signing should not be one of the attesting
witnesses, unless there are more than 3 such
witnesses
iv. Must be attested and subscribed any 3 or more credible
witnesses crediblewitnesses in the presence of the
testator and of one another (Art. 05, id)

Credible means: Of sound of mind

18 yrs or more,
Not blind, deaf, or dumb,
Able to read and write
Domiciled in the Philippines
(not necessarily a citizen)
Has not been convicted of falsification,
perjury, or false testimony. (Arts. 820, 821,
NCC)

But witnesses do not have to know the

language of the will except that the
attestation clause must be interpreted to
them. (Art 804)

Also, a blind or an illiterate can make a will,

but he cannot be a witness to a will.
v. The testator or person who signed for him and the
witnesses must be sign each and every page on the left
margin of the will except the last page.

The signatures may be on the right, top, or bottom

of the margin of the will. (Avena v. Gracia, 42 Phil.
145; Nayue v. Mojal, L-14322, Feb. 25,1960).
vi. All pages of the will must be correlatively numbered in
letters placed on the upper part of each page (Art 805,
id)
 1. Means “one, two, three”, but can be “1,2,3” or
“A,B,C”, or”I,II,II”.
2. Purpose: to prevent fraud, substitution or to detect
loss of any page. So, substantial compliance is
enough.
vii. Must have an attestation clause which state (Art. 805,
id):
1. The number of pages where the will is written;
2. That the testator signed in the presence of the
testator and of each other.
Purposes:
a. The number of pages where the will is
written;
b. To have proof of compliance
c. To minimize commission of fraud or undue
influence.
Failure to state number of pages in the
attestation clause is fatal. ( Re Andrada,
42 Phil. 180) unless number of pages
appears elsewhere in the will (Singson v.
Florentino, L-4603, Oct 25,1952;
Gonzales v. Gonzales, L-3272, Nov 29,
1951)
viii. Must be notarized (Art. 806):
1. The following are not essential: date, place of
execution, the reading of the will to the witnesses.
2. Only the attestation clause is the interpreted to the
witnesses.
3. Only the attestation clause is interpreted to the
witnesses if the language is not known to them,
and not the will itself.
 4. The notary does not have to read the will except if
the testator is blind (Art. 808)
5. The notary need not be present at the time of the
execution
6. Witnesses also need not appear before the notary
at the same time
7. But notary cannot be a witness to the will
ix. If the testator is deaf or a deafmute, he must personally
read the will, or he must designate two persons (need
not be the attesting witnesses) to read or communicate
the will to him, but they must know the sign language
(Art. 807).
x. IF the testator is blind, the will should be read to him
twice: once, by one of the subscribing witnesses, and
again, by the notary public, (Art. 808). But: (a) A blind,
deaf, and dumb man cannot make a will because of
difficulty of communication.
xi. The notary public cannot be one of the attesting
witnesses, because he cannot acknowledge his own act.

If the testator be deaf, or a deaf mute, or if he is blind,

what are the additional formalities imposed by law in
the execution of an ordinary will? He must personally
read the will if able to do so; otherwise, he shall designate
two persons to read it and to communicate it to him, in
some practicable manner, the contents thereof (Art. 807).
If he 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 (Art. 808)
Is it required that the witnesses actually saw the
testator affix his signature in the will? Why? No,
because the phrase “in the presence” does not necessarily
require actual seeing, but only the possibility of seeing
without physical obstruction. “If a witness merely turned
his back, the signing is still considered in his presence.
What is important is that, the witnesses and the testator
had the opportunity to have seen the signing of the
document (Jaboneta vs Gustilo, 5 Phil 241).

What is the purpose of the law in requiring the

presence of the three (3) witnesses at the time the
testator affixes his signature in the will? To prevent
fraudulent substitution of the will.

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

and testament? Why? No, because the notary public
cannot be considered as a third instrumental witness since
he could not have acknowledged 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 the marking of the will. To permit such
situation to obtain would be sanctioning sheer absurdity
(Cruz vs Villamor, 54 SCRA 31).
Who may be witnesses in a will? (Art. 820)
(1) Those of sound mind;
(2) Those who are at least 18 years of age;
(3) Those who are not blind, not deaf or dumb;
 (4) Those who are able to read and write.
Who are disqualified as witnesses in a will? (Art. 821)
(1) Those who are not domiciled in the Philippines;
(2) Those who have been convicted of falsification of
document, perjury or false testimony.
What is the effect of subsequent incapacity of a witness
in a will? Nothing. (Art, 822)
What is the attestation clause? What is its purpose?
What are the essential facts which must be stated
therein?
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 O.G. 327). It is made for the purpose of
preserving in permanent form a record of the facts
attending the execution of the will so that in case of failure
of the memory of witnesses or in case they are no longer
available, such facts may still be proved. According to the
third paragraph of Art. 805 CC, there are three essential
facts which must necessarily appear in the attestation
clause in order that it will constitute a real certification by
the instrumental witnesses that the formalities required by
law in the execution of an ordinary will have been complied
with. These facts, all of which are essential in character,
are as follows:
(1) The number of pages used upon which the will is
written;
 (2) 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
(3) The fact that the instrumental witnesses
witnessed and signed the will and all the pages thereof
in the presence of the testator and of one another.

What is the doctrine of liberal interpretation as applied

to facts and imperfections in the attestation clause?
It is embodied in Art. 809 CC which states, “In the absence
of bad faith, forgery, or fraud, or undue and improper
pressure or influence, defects and imperfections in the
form of the 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 Art. 805.
What is the effect of failure of the testator to affix his
signature in the attestation clause?
It is not fatal and is immaterial. The attestation clause is
not his act, it is an act of the instrumental witnesses
(Abangan vs. Abangan, 40 Phil. 476).
Suppose the attestation clause does not state the
number of pages, is the will valid?
Yes, if the same can be determined from the will. This is so
because of the liberality rule or that there was substantial
compliance with the law (Perez vs Rosal, 118 SCRA 195).
What is the effect if the attestation clause was signed
by the witnesses?
The will is void because the total absence of the signature
of the witnesses shows their non-participation (In re:
Testate of Vicente Cargo, April 28, 1953),
What is the effect if a will does not contain an
attestation clause?
The will is void because the total absence of the same is a
fatal defect of the will (In re: Newmark, 45 Phil 481).
What is the effect if the attestation clause does not
state that the will was signed by the testator in the
presence of the witnesses??
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; Perz vs Rosal, supra).

What are the purposes of the 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 vs Leynes, 40 O.G. No. 7, p. 51);
(2) To render available proof that there has been a
compliance with the statutory requisites for the
execution of the will; and
(3) To minimize the commission of fraud or undue
influence.
b. Holographic will
Requirements:
i. Language must be known to the testator. (Art. 804, NCC)
ii. It must be entirely written, dated, and signed by the
testator. (Art 810)
iii. Insertions, cancellations, erasures, or alterations must be
authenticated by the full signature of the testator (Art
814); otherwise, the alterations, etc. are void, but not
the will itself.
iv. If there are dispositions that are signed but not dated,
but last disposition has a signature and a date, such date
validates the disposition proceeding it (Art 813)
Advantages of Holographic wills:
 More intimate and personal
 Unlikely to be influenced by fraud or undue
influence
 No witnesses, no marginal signatures, no
notarization and acknowledgement needed
 Subject to no other form (Art. 810)
 Can be made in or out of the Philippines (id)

Probate of holographic wills:

 If not contested, only the testimony of one witness

who knows the handwriting and signature of the
testator is needed.
 If the will is contested, at least three of such
witnesses are required
 In the absence of said witnesses, expert testimony
may be presented. (id.)
HOLOGRAPHIC WILL:
What are the formalities of a holographic will?
A holographic will must be:
(1) In a language known to the testator;
(2) Entirely written in the handwriting of the testator
(3) Completely dated;
(4) Signed by the testator;
(5) With animus testandi;
(6) Executed at the time holographic wills are allowed
(Arts. 804, 810 and 795).

In the probate of a holographic will, how many

witnesses must be presented?
It shall be necessary that at least one witness who knows
the handwriting and signature of the testator explicitly
declares that the will and the signature are in the
handwriting of the testator. If the will is contested, at least
three (3) of such witnesses shall be required.
In the absence of a competent witness, and if the court
deems it necessary, expert testimony may be resorted to
(Art. 811CC, Heirs of Matilde MOntinola-Samson vs CA,
G.R. No. 76648, February 26, 1988).
What is the effect of the failure to comply with all the
requisites?
Failure to strictly observe other formalities will not result in
the disallowance of a holographic will that is
unquestionably handwritten by the testator.
A reading of Art. 813 CC shows that its requirement
affects the validity of the dispositions contained in the
holographic will, but not its probate. If the testator fails to
sign and date some of the dispositions, the result is that
this dispositions cannot be effectuated. Such failure does
not render the whole instrument void.
For purposes of probating non-holographic wills, the
formalities include the subscription, attestation and
acknowledgment (Ajero vs CA, et al., G.R. No. 106720,
Sept. 15, 1994).
Can a photocopy of a holographic will be submitted for
probate?
It is possible that a photostatic copy, or even a
mimeographed or carbon copy may be substituted to the
original document. This is so because in these cases
compliance with the requirements stated in Art. 811 of the
Civil Code would still be possible.
Note: this also true even if probate will take place after the
death of the testator because the comparison can still be
made with the standard writings of the testator (Rodelas vs
Aranza, 119 SCRA 16). As long as the authenticity of the
handwriting of the testator can be determined by the
Court, a photostatic copy can be admitted.
At what instance may insertions in a holographic will
be considered valid?
Insertions, cancellation, erasure or alteration in a
holographic will, he testator may authenticate the same
with his full signature (Art. 814)
Would the failure of the testator to authenticate some
of his dispositions in a holographic will render the
entire will void?
No. a holographic will can still be admitted to probate
notwithstanding non-compliance with the provisions of Art,
814CC. “Ordinarily, a number of erasures, corrections or
interlineations made by the testator in a holographic will
have not been noted under his signature, the will is not
thereby invalidated as a whole, but at most only as respect
the particular word erased, corrected or interlined (Kalaw
bs Relova, 132 SCRA 237; Velasco vs Lopez, 1Phil 720).

6. Wills executed abroad:

a. If executed by a Filipino, it can be in any form established in
the country where he may be at the time of execution (Art.
815)
b. If executed by an alien, will may be executed in accordance
with:
i. Lex domicilii (Art 816)
ii. Lex nationalii(id)
iii. Philippine Law(id)
iv. Lex loci celebrationis (place where testator was at time of
execution) (Art 17)

What law shall govern the formal validity of a will?

 (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;
(2) If the testator is a Filipino and the will is executed
in a foreign country, then its formal validity is either
governed by (a) the law of the place where the will is
made, or (b) by the Civil Code of the Philippines;
(3) If the testator is a foreigner and the will is
executed in the Philippines, then its formal validity is
either governed by (a) the Civil Code of the Philippines
(Art. 17CC) or (b) the law of his own country (Art.
817CC);
(4) If the testator is a foreigner and the will is
executed n a foreign country. Then, its formal validity
is either governed by (a) the law of the place where the
will is made (Art. 17 CC), or (b) by the law of his own
country (Art. 816 CC). or (c) the law of the country
where he resides, or (d) the Civil Code of the
Philippines.
John a European national but a resident of Singapore
executed a will in Pennsylvania. May his will be
probated in the Philippines? May his estate in the
Philippines be distributed in conformity with the
provisions of the will?
Yes, provided that his will was executed in accordance with
the formalities prescribed by any of the following laws:
(1) The law of the place in which he resides
(Singapore);
(2) The law of his own country (Europe);
(3) The Civil Code of the Philippines; or
(4) The law of the place where the will was made
(Pennsylvania)

7. Joint will of Filipinos:

a. Joint will defined: A will executed by two or more persons in
the same instrument, either for their reciprocal benefit or for
the benefit of a third person. (Art 818, NCC).
Example: A and B executed a will in one instrument, making C
their heir.
b. Distinguished from reciprocal or mutual wills:
Reciprocal or mutual wills provide that the survivor of the
testators will succeed to all or some of the properties of each
decedent;

Example: A made a will making B his heir. B also made a will

making A his heir

Mutual or reciprocal wills are valid, but if made in one

instrument, they are void not because they are reciprocal, but
because they are joint
c. Joint wills, whether reciprocal or not, are void (Art 818)
d. Reasons why joint wills are void:
i. To allow as much as possible secrecy, a will being a
purely personal act.
ii. To prevent undue influence by the more aggressive
testator on the other
iii. In case of death of the testators at different times
probate would be harder.
 iv. It militates against the right of a testator to revoke his
will at any time, like revocation by tearing or burning

v. In case the testators are husband and wife, one may be

tempted to kill the other
e. Void even executed by a Filipino in a foreign country where
such is allowed (Art 819)
f. How about joint wills executed by foreigners?
i. If executed abroad and valid in the country of execution,
valid also here (lex loci celebrationis).
ii. If executed in the Philippines, void because it is against
our public policy
8. May Filipino citizens execute joint wills? What is a
joint will?
9. Joint will is a single testamentary instrument which
contains the will of two or more persons jointly
executed by them, either for their reciprocal benefit or
for the benefit of a third person ( 57 Am Jur., Sec.
681, p. 458) Whether abroad or in the Philippines,
Filipinos are prohibited to execute joint wills (Arts.
818 & 819CC)

10. Devise, legacy, etc., to attesting witnesses (Art. 823, NCC ).

a. The devise or legacy is void, but the will is valid.
b. If given to the spouse, parent, or child of an attesting witness,
the legacy or devise is also void (but the attesting witness can
still act as such, if there are three other competent witnesses
to the will) (Art 823, id)
c. But if the witness or his spouse, parent, or child is a
compulsory heir, he will not lose his legitime
 d. Can a compulsory heir be an attesting witness? Yes, but any
property given to him out the free portion is void.
e. Can the notary public who acknowledges the will be a
witness? No, because he cannot acknowledge something
before himself.
11. Codicil (or a small will):
a. Meaning (Art 825, NCC )
i. A supplement or addition a will
ii. Made after the execution of a will and annexed to it to
be taken as part thereof
iii. Explains, alters, or adds to the original will.
b. How executed:
i. With the same formalities as will (Art 826)
ii. May be notarial or holographic
c. How revoked:
i. A notarial will may be revoked by a notarial or
holographic codicil; a holographic will may be revoked by
a holographic or notarial codicil;
ii. A valid will can never be revoked by an invalid codicil,
whetherexpressly or impliedly.
12. May Filipino citizens execute joint wills? What
is a joint will?
13. Joint will is a single testamentary instrument
which contains the will of two or more persons jointly
executed by them, either for their reciprocal benefit or
for the benefit of a third person ( 57 Am Jur., Sec.
681, p. 458) Whether abroad or in the Philippines,
Filipinos are prohibited to execute joint wills (Arts.
818 & 819CC)
 14. Incorporation by reference:
Means a will validly executed incorporates only by
reference(without copying the whole thing) certain documents or
papers, especially inventories and books of account, to save time
and energy

Requisites (Art 827):

a. The document or paper referred to must be in existence at the
time of execution of the will
Therefor, future papers cannot be incorporated by reference.
b. The will must clearly describe and identify the document or
paper, especially the number of pages thereof.
c. The document or paper referred to must be identified by clear
and satisfactory proof (by parol evidence or evidence aliunde)
d. The testator and the witnesses must sign each and every page
of the paper or document, except voluminous books of
account or inventories, but number of pages must be stated.

In case a will has been probated abroad, is there a need

to notify known heirs?
Yes. The rule that the court having jurisdiction over the
reprobate of a will shall “cause notice thereof to be given as
in case of an original will presented for allowance” (Revised
Rules of Court, Rule 77 Section 2) means that with
regard to notices, the will probated abroad should be
treated as if it were an “original will” or a will that is
presented for probate for the first time. Accordingly,
compliance with Sections 3 and 4 of Rule 76, which require
publication and notice by mail or personally to the “known
heirs, legatees and devisees of the testator resident in the
Philippines” and to the executor, if he is not the petitioner
are required (Vda. De Perez vs Hon. Tolete, G.R. No.
7614, June 2, 1994.

May a will of an alien produce an effect in the

Philippines?
Yes. 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 of
those which this Code prescribes (Art. 816 CC). Proof that
the will conforms to the laws mentioned is imperative
(Salud Teodoro Vda. De Perez vs. Hon. Tolete, supra).
What evidence 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) The testator has his domicile in a foreign country,
and not in the Philippines;
(3) The will has been admitted to probate in such
country;
(4) The fact that the foreign tribunal is a probate
court; and
(5) The laws of a foreign country on procedure and
allowance of wills (III Moran, Comments on the
Rules of Court, 1970 Ed., pp. 419-429; Suntay vs
Suntay, 95 Phil. 500).
Is there any exception to rule that the intrinsic validity
of a will is beyond the power of the court to look into?
Yes. As when there are unusual provisions of the will which
are of dubious legality and which might make the probate
of the will an empty ceremony since on its face, it is
intrinsically void. In Nepomuceno vs CA (139 SCRA 206),
where the devisee was the concubine of the testator, the
will was allowed, but declared the provision void in so far
as the concubine was concerned.
What is the extent of the power of the probate court?
It has limited jurisdiction and is without power to
determine the issue of ownership of the properties. As to
the issue f ownership, there must be a separate litigation,
except if 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 interests of third
persons are not prejudiced (Baybayan vs Aquino,149
SCRA 186, Sanchez, et al., vs CA et al., G.R. No.
108947, Sept. 29, 1997)
Does the probate of a will look into its intrinsic
validity?
No. the authentication of a will decides no other questions
than those that touch upon the capacity of the testator
and the compliance with those solemnities which the
law prescribes for the validity of the will. It does not
determine or even prejudge the validity or efficacy of the
provisions of the will. The questions relating to such points
remain entirely unaffected and may be raised even after the
will (Coronado vs CA, 191 SCRA 814).
 Revocation of Wills

1. When is revocation valid; law applicable (Art, NCC):

a. If done outside the Philippines-
i. If by one not domiciled here:
1. Apply law at the place the will was made; or
2. Follow the law at the place where the testator was
domiciled at the time the will was made; or
3. Follow Philippine Law.
ii. If done by one domiciled in the Philippines:
1. Follow Philippine law (since his domicile is here); or
2. Follow the general rule of the lex loci celebrationis
of the revocation (Art 17)
b. If done in the Philippines-
Follow Philippine law whether the testator is domiciled in the
Philippines or not; i.e., lex loci celebrationis of the revocation.
2. Ways of revocation (Art 830, NCC ):
a. By implication or operation of law, total or partial
b. By an overt act (burning, tearing, cancelling, or obliterating)
c. A revoking will or codicil, totally or partially, expressly or
impliedly
3. Different ways of revocation explained
a. By implication or operation of law:
When after the execution of a will, certain acts or events take
place rendering void the will totally or partially (presupposing
a change of mind on the part of the testator), like -
i. When the testator sells or donates the thing given as
legacy or devise (Art 957, NCC)
 ii. In case of legal separation, annulment of marriage, and
declaration of nullity of marriage, with respect to the
property given to the guilty spouse (Art 43,0, Family
Code)
iii. When an heir, legatee, or devisee commits an act of
unworthiness under Art 1032, NCC
iv. When a credit given as a legacy is judicially demanded by
the testator (Art 936, NCC)
v. When one or some of the compulsory heirs are
preterited or omitted in the will, the institution of heirs
is void, but legacies and devisees remain valid as long as
the legitime is not impaired (Art 854, id)
b. By an overt act (burning, tearing, cancelling or obliterating, or
crumpling) (Art 830, par. (3), NCC):
i. May be done by the testator or another upon his express
direction
ii. The subjective phase of the act must be completed (if,
for example, even a small part of the will is burned
iii. There must be capacity to make a will at the time of
revocation
iv. If the testator threw his will into a stove with the intent
of revoking it so that it would be burned once someone
lights the stove, but somebody removed the will from
the stove, but somebody removed the will from the
stove before it was lighted, there is no revocation
because there was never the overt act of burning.
v. If a will is burned accidentally, there is no revocation in
view of the lack of intention to revoke
vi. Tearing of the will, even if slight or only into two pieces,
is enough revocation as long as the subjective phased is
passed
 vii. Obliteration is rendering the words illegible; cancelling is
the drawing of lines across the text, but the words
remain legible.
viii. Cancellation of the signature is sufficient revocation, but
cancellation or obliteration of non-vital parts leaves the
other parts of the will in force
ix. If a will is mutilated by error or accident, there being no
animo revocandi, there is no revocation
x. If what was burned was only the envelope containing the
will, there is no revocation
c. By the execution of another will or by a codicil (Art 832 and
ff,NCC):
i. Revoking will or codicil must be valid as to form
otherwise, revocation is void
ii. Revocation by subsequent will or codicil takes effect
even if the new will becomes inoperative because of
incapacity or renunciation of the heirs, legatees, or
devisee(Art 832, NCC)
iii. Implied revocation by subsequent will (Art 831):
If subsequent will does not revoke the first will in the
express manner, only those dispositions in the first will
that are inconsistent or contrary to the second will are
annulled
Reasons: (1) The law does not favor implied revocation
(2) Efforts to reconcile must be made

iv. Revocation based on a false or illegal cause is void (Art

833)
Example of a false cause: T instituted A as heir. Then he
learned that A was already dead, so he made another
instituting B. If A turns out to be still alive, he and B
 inherits T, because the revocation of the will in his favor
was based on a false cause
v. Note the difference between an invalid second will is
void, it cannot revoke. If it is only. If it is only inoperative
by reason of the incapacity or renunciation of the heir,
legatee, or devisee, revocation takes place
vi. Doctrine of conditional revocation or dependent relative
revocation;
This refers to a revocation that is conditional; i.e.,
revocation takes place only if the condition is fulfilled.

Example: T makes will no. (1). After one week, he

excuses Will No (2). Then he tore Will No (1) to pieces.
Upon his death, it was discovered that his Will No. (2)
had not been validly executed.

Is Will No (1) revoked, or should be given effect?

In one case, it was held that Will No (1) was revoked

because the tearing was accompanied by animo
revocandi (Diag v. De Leon, 43 Phil 413).

Later, it was ruled that there was no revocation either by

subsequent will or by overt act of tearing because the
tearing was prompted false belief that the second will
was validly executed (see Art. 833, NCC, which states
that revocation of a will based on a false or illegal cause
is null or void). Or, under the doctrine of dependent
relative revocation, the revocation by destruction or
overt act is good only of the condition is fulfilled, namely,
that the revoking will is valid. Here, the condition was
 not fulfilled; therefor, the revocation be overt act did not
materialize. (De Molo v. Molo, et al, L-2538, Sept. 21,
1951)
vii. The second will referred to by the testator as his last will
revokes his first will, especially if the provisions of the
two wills are inconsistent, liken as to who are being
instituted heirs.
4. Remember that the testator can revoke his will at anytime before
his death
5. Recognition of an illegitimate child in a will does not lose its effect
even if the will is revoked (Art. 834, NCC)

Republication and Revival of Will

1. Definition of Terms

Republication is the act of the testator of reestablishing a will which

is void as to form (like there were only two attesting witnesses or
there was no attestation clause) or which has been revoked (Art
835, NCC)

Revival is the restoration of validity to a previously revoked will by

operation of law

2. Mode of republication:
a. Re-execution of the original will (copying the original
provisions there
b. Execution of a codicil referring to a previous will (also known
as implied republication) (Art 836, NCC)
3. Requisites and limitations of republication :
 a. If a will is void as to form (like if there were only two attesting
witnesses or there was no attestation clause), the new will
must reproduce or copy all the provisions of the first will.
i. But the effect of the will is the date of execution of the
new will not of the old will
ii. If I gave all my cars to A in my first will which turned out
void as to form, and I copied all its provisions in a second
will, and I had only 3 cars when I executed the first will
and 8 cars when I executed my second will, my heir A will
get 8 cars not 3 cars
b. If a will is void as to form, it cannot nr republished by mere
reference in a codicil. There must be a new will codicil
reproducing all the provisions of the first void will.
But if the first will was valid but had later been revoked, a
codicil merely referring to the revoked will revives said void
will. There is no need to reproduce the provisions of the
revoked will. The will however, effective as of the date of the
codicil.
c. If a will is void due to fraud or undue influence, the execution
of a codicil referring to the previous void will is sufficient
republication. There is no need to reproduce its provisions.
(Art 836,NCC)
4. Rules on Revival (Art 837, NCC ):
a. If the second will expressly revoked the first will, revocation of
the second will does not revive the first will
b. If the second will only implied revoked the first will (like having
inconsistent provisions), revocation of the second will revives
the first will
c. If the second will revoking the first will is invalid, the first will
is still effective because the revocation is void.
 5. Another Case of Revival
While the preterition of a compulsory heir annuls the institution of
heirs, still, if the omitted heir dies ahead of the testator, the
institution of heirs revived, without prejudice to the right
representation (Art 854, sec. par., NCC )

PROBATE OF WILLS
1. Study Rules 73 to 90 of the 1997 Rules of Civil Procedure

On Settlement of the Estate of deceased persons.

2. Meaning of probate: the act of proving before a competent court

the due execution of a will by a person with testamentary capacity,
and the approval of the will by said court.
3. Necessity of probate:No will shall pass real or personal property
unless proved and allowed in accordance with the rules of court
(Art 838, NCC)
4. Probate of will is conclusive as to:
a. Due execution of the will ;
b. Testamentary capacity of the testator.

5. Two kinds of probate:

a. During the testator’s lifetime (ante mortem probate)
Reasons:
i. To prevent or minimize fraud, intimidation or undue
influence in the execution of wills.
ii. To enable the testator to correct at once any failure to
comply with the legal requirements.
(Report of the Code of Commission, pp. 53-54)
 Note: But the testator can still revoke his will although
already probated during his lifetime.
b. After testator’s death
6. Grounds for disallowance of wills (Art. 839, NCC).
a. Formalities by law were not complied with
b. Testator had no testamentary capacity at the time of execution
of the will
c. Will was executed through force, duress, or influence of fear or
threats
d. Will was procured by undue and improper pressure and
influence on the part of the beneficiary or some other person
e. Signature of the testator on the testator on the will was
procured by fraud
f. Testator acted by mistake or did not intend that the instrument
he signed should be his will when he signed should be his will
when he signed it.
Remember:
a. The grounds for disallowance of wills in Art 839 are exclusive; no
other grounds can serve to disallow a will (Person v. Coronel,45
Phil. 216)
b. While the presence of force, duress, fear or threat in the
execution of a contract renders it merely voidable (i.e., capable
of ratification), their presence in a will renders the will void.
c. There is undue influence when the testator does something
because of fear or desire for peace or from any other feeling
that he is unable to resist (Torres v. Lopez, 48 Phil. 772). But he
alleges undue influence must prove it (Macapinlac v. Alimurong,
16 Phil. 41)
d. There is no undue influence if the testator gives the whole free
portion to an illegitimate child or a mistress. Mere affection,
 although illegitimate, is not undue influence, as long as the
giving was voluntary (Coso v. Fernandez Dez, 42 Phil. 596)
However, a mistress is incapacitated to inherit, on the ground of
public morality and public policy (Art 1028 in relation to Art 739,
NCC)
e. Fraud and undue influence are mutually repugnant and exclude
each other, as that their joinder as grounds for opposing probate
shows the absence of definite evidence against the validity of
the will (Icasiano v. Icasiano, L-18979, June 30, 1964)

INSTITUTION OF HEIR

1. Meaning of “institution of heir” in the:

It is “an act of virtue of each testator designates in his will the
person or persons who are to succeed him in his property and
transmissible rights and obligations”. (Art. 840, NCC).
2. Requisites for a valid institution of heirs:
a. Refers only to voluntary heirs; cannot affect the legitime.
b. Applicable also to devisees and legatees.
c. Exists only on testamentary succession.
d. Even a conceived can be instituted, subject to Arts. 40 and 41
of NCC.
e. Heirs, legatees, and devisees must be certain or ascertainable.
f. There must be no preterition, except the devises and legacies
are valid as long as the legitime is not impaired.
g. The institution must be effective; that is, there is no
predeceased, repudiation, or incapacity of heirs.(Art. 841)
h. The will must be extrinsically and intrinsically valid.
 i. If the institution is partial, the reminder of the estate goes to
intestate heirs (Art. 841)
3. Other rules to remember:
a. And heirs must be designated by his name and surname, and
when two persons have the same name, the will must indicate
circumstances to identify the heir (Art. 843, NCC).
b. Even if the name of the heir is omitted, if there's no doubt as
to his identity, the institution is valid (Art. 843)
c. Error in name, surname, or circumstances of the heir shall not
vitiate the institution if he can be ascertained in any other
manner (but that only by the oral declaration of the testator)
(Art. 844)
d. If several persons have the same name and surname and
similar circumstances, and even with the presentation of
other proof, the heir cannot be identified, none shall be an
heir.(Art. 844)
e. Institution of unknown person is void(Art. 845)
Example: ” I institute my friend" (But have many friends)

f. Special kinds of institution:

i. The poor in general (apply Art. 1030, NCC)
ii. The relatives of the testator (meaning those nearest in
degree) (Art. 959)
iii. " X and his children"(Art. 849) —they are instituted
simultaneously
iv. " My brothers and sisters" —equally, even if some are
full and some half blood (Art. 848)
g. Heir instituted with the designation of shares inherit in equal
parts (Art. 848). But this does not apply to the legitime.
h. " T instituted his son A and his friends X and Y to these P1 M
estate. Divide"
 First, give A his legitime of 500,000 pesos
Then, divide the other 500,000 pesos among A X and Y
i. “T instituted A and B and the 3 children of C to his estate of
P100,00” How should the estate be divided?
Divide the estate into 5 equal parts.
j. “I instituted his two brothers and three half-sisters. Divide”
i. They get equal shares (Art. 848).
ii. Remember, though, that in intestate succession, full-
blood gets double share of half-blood
k. “T instituted A and the latter’s 2 children to his estate of
P100,000. Divide”
Divide the estate into three equal parts or shares, ie, the heirs
inherit simultaneously, not successively.
l. A statement of a false cause in the institution of heir is
considered not written unless it appears from the will that the
testator would not have made the institution had he known of
the falsity of the cause (Art. 850).
“I institute my student X for getting 100% in Civil Law.”
The institution is valid, even if the student did nit get 100% in
Civil Law .What is disregarded is false cause, not institution
m. “I institute my friend F to ½ of my P1M estate”
Who get’s the other half?
The intestate heirs (Art. 851)
n. A voluntary heir who dies before the testator or who proves
to be incapacitated transmits nothing to his heirs (Art. 856)
i. There is no representation among voluntary heirs
ii. There is no also representation in legacies and devises.
o. “T has children A and B. A has a child A-1. If T institutes his
children A and B to his P1M estate, but A dies ahead of T, who
gets the estate?”
 A-1 gets A’s legiteme of P250,000 by representation. The
remainder of the estate goes to B as compulsory and
voluntary heir
p. Remember that a person renounces cannot be presented (Art
977)

Preterition
1. Art 854 NCC: “The preterition or omission of one, some, or all
of the compulsory heirs in the direct line, whether living at the
time of execution of the will or born after deatof testator, shall
annul the institution of heir; but devises and legacies shall be
valid in so far as they are not innofficious.

If the omitted compulsory heirs should die before the testator, the
institution shall be effectual, without prejudice to the right of
representation”
2. Nature of Preterition:
a. Total omission of one, some, or all of the compulsory heirs in
the direct line.
b. Omissions may be intentional or unintentional
c. Compulsory heirs must be in direct line (ascendants and
descendants)
d. Compulsory heirs may be leaving or conceive at that time
institution.
e. The institution of heir shall be annulled or voided, but legacies
and devises remain if not inoffcious
f. If the omitted heir predeceased the testator, the institution is
effectual, with out prejudice to the rights of presentation
g. illegitimate ascendants or descendants are included
 h. If a compulsory heir is given a very small share, complete only
his legiteme. There is no preterition
i. If a child has been given a donation inter vios, there is no
preterition because the donation is an advance on his legitime.
So he's entitled only to the completion of his legitime
j. The omission of the surviving spouse in the will is not
preterition because she is not a compulsory heir in the direct
line. So, give her the legitime given to her by the law
k. If brothers or sisters are omitted, there is no preterition
because they are not compulsory heirs and not in the direct
line
l. " T has three sons A,B and C. He makes a will instituting a and
B and his friend F. Who gets his estate?"
Answer: F gets nothing since he's a voluntary heir, not a
legatee or devisee. The institution is annulled because of
preterition or the omission of C. But if F is a legatee or
devisee, the gift is valid if not enough inofficious. If inofficious,
it is reducible.

SUBSTITUTION OF HEIRS
1. Meaning of “substitution of heir”:
It is the appointment of another heir in default of or after the
heir originally instituted (Art 857, NCC)
2. Purpose of substitution of heirs
a. To prevent the property from falling into the hands of people
not desired ny the testator
b. To prevent intestate succession
c. To allow the testator greater freedom to reward those
worthy of his affection and bounty than his intestate heirs
Note: There may also be substitution of legatees and devisees
3. Kinds of substitution: (Art 858, NCC)
 a. Simple, vulgar or common (Art 859) (without stating the
reasons of substitution)
One or more persons substitute the instituted heirs in case of
predecease, repudation, or incapacity.
Ex: T instituted A cannot as his heir, but provided in his will
that in case A cannot for any reason receive the inheritance,
he shall be substituted by B
Or, simply, T designates B as his heir and C as B’s substitute
b. Brief (Art 860):
Ex: T institute Aas his heir, with B and C as substitutes.
(art.860)
c. Compendious (Art.860)
Ex.: A and B are instituted, with C as substitute.
d. Fideicommissary substitution (Art.863)- see discussion below
and next pages
e. Reciprocal (Art.861)
Ex.: If A and B are instituted, with the provision that if A
predeceases, renounces, or is incapacitated, B substitute him,
and vice-versa.
Even if the original shares given to A and B are not equal, like A
was given 2/3 and B 1/3 of the testator’s estate, since the
institution is reciprocal, if either A or B predeceases,
renounces, or incapacitated, the other gets the original share
of the one originally instituted.

f. Remember that cause for the substitution need not be

stated, in which case the substitution applies predecease,
renunciation, or incapacity.
4. Fideicommissary substitution (Art. 863, NCC)
 T institutes A as first heir or fiduciary, but he must preserve and
transmit the estate to second heir B called fideicommissary or
beneficiary, with the following conditions;
a. The substitution does not to the legitimate (art.864)
b. The fideicommissary substitution must be express; i..e.the
obligation to preserve and transmit the property to the
second heir is clearly imposed.
c. The second heir should not go beyond one degree or one
transfer from the first heir.(art.863).
d. Both heirs inherit from the testator.
e. Both heirs must be living or at least conceived at the time of
testator’s death.
f. The second heir acquires his right from the time of testator’s
death.if he dies before the first heir or fiduciary dies,his (the
second heir’s) right passes to his heir.(art.866)
g. The first heir enjoys the property almost like a
usufructuary(art.866)
So:
i. He cannot alienate the property.
ii. He is entitled to refund of useful improvements,
legitimate expenses and credits(art.865).
h. One degree means one generation or one transfer(so, the
second heir can be juridical person).b
i. Since the substitute must be one degree from the first heir,
he must be a parent or child of the first heir. He cannot be a
brother,because brother is two degrees fiduciary
j. The nullity of the fideicommissary substitution does not
prejudice the validity of the first heir.the fideicommissary
clause is simply deemed not written.(art.868).
5. Remember also:
a. Suppose the fiduciary dies ahead of the testator,the second
heir gets the property not as fideicommissary but as a simple
substitute, to give effect to the testator’s will.
But if the the second heir or fideicommissary dies ahead
of the testator, there is no fideicommissary substitution
because both heirs must be living at the time of testator’s
death ,since both inherit from the testor.
However, if after the testator’s death,the fideicommissary
dies ahead of the fiduciary,the right of fideicommissary (or
second heir) passes to his heirs (866).
b. If the fiduciary registers the property in his name without the
fideicommissary substitution, the innocent parties are
protected.
However, if the property is unregistered, the buyer
acquires only the seller’s right;i.e.,subject to the
fiddeicommissary substitution.
c. The fideicommissary is a sort of naked owner;ownership is
consolidated in him upon transmission of the property to
him.
d. The second heir can be, as stated above,ajuridical person,
provided there is only one transfer.
e. The second heir,being an heir also of the testator,must be
capacitated to succeed the testator, not the first heir or
fiduciary.
f. T instituted A as first heir and B as fideicommissary or second
heir.A predeceasest
T .Will B inherit when T dies?
Yes,not as a fideicommissary but as an ordinary
substitute heir.
 g. T instituted A as first heir and B, A’s brother, as
fideicommissary or second heir. T died and his property
passed on to A . upon A’s death ,will B get the property?
No. The fideicommissary substitution is not valid because
B is second degree from A. Property will go to A’s heirs,
testate or intestate.
h. T instituted A as first heir; A’s son A-1 as second heir, and
A-1’s mother is third heir. Is this a valid fideicommissary
substitution?

As far as A and A-1 are concerned, yes. But as to A-1’s

mother ,no because she is not one degree from A; in fact, she
may not even related to A by blood. But she may still get
property from A-1 by testate or intestate succession.

DISPOSITIONS WITH CONDITIONS OR TERMS

1. Applies to the free portion; never to the legitime.
2. Kinds of institution;
a. With a condition; B is instituted provided he passes the 2004
bar exams.
b. With a term; B is instituted beginning 2003.
c. For a certain purpose or cause ( Modal institution); A is
d. to be spent for the interment of the testator.
3. With condition;
a. Impossible or illegal conditions and those against good
customs are deemed not imposed and do not prejudice the
heir, even if the testator should provide otherwise (Art.873).
that is only the condition is void.
b. An absolute condition not to marry is void for being against
good morality and public policy. Hence , the disposition is
deemed not subject to a condition and is valid. (Art.874)
c. Absolute condition not to remarry is also void as against
morality and public policy,except;
i. when imposed on the widow or widower by a
deceased spouse.if the condition is violated, the widow
or widower gets only his/ her legitime. free portion
goes to the intestate heirs of the deceased.(id.)
ii. when imposed on the widow / widower by the
ascendants or descendants of the deceased spouse.(id)
d. examples;
i. T instituted friend F provided he will never marry. F
married after T’s death.
ii. F is still entitled to inherit from T because the
condition is immoral.
iii. H instituted his wife as sole heir ( there are no other
compulsory heirs) on condition that when she
becomes a widow ,she would not remarry. Two years
H’s death, the widow remarried. The condition is valid
as to the free portion. But the wife still gets her
legitime.
e. Disposition captatoria: A disposition on condition that the
heir shall make in his a provision in favor of the testator or
any other person.
The disposition itself is void, not just the condition.so the
heir gets nothing because the institution is a nullity.
f. Potestative condition (art. 876); the fulfillment depends
solely on the heir and must be performed by him personally.
i. Must be fulfilled as soon as the heir learns of the
testator’s death.
ii. When condition has already been complied with and
cannot be complied again. Condition is deemed fulfilled
( art. 876 ).
 Ex. the heir must learn to play the piano.
iii. Substantial or constructive compliance is enough (that
is, the heir tried his best).
g. Casual or mixed condition ( art. 877);
Casual – depends upon chance or the will of a third person.
Mixed – depends partly on the heir and partly upon chance
or the will of a third person.
Examples; that A becomes a lawyer.
That C wins first prize in the lotto.
That A wins the Miss Universe contest.
Rules;
i. Condition may be fulfilled before or after the death of
the testator.
ii. If already complied with and testator was not aware of
the compliance ,already deemed fulfilled.
iii. If already complied with and testator was aware of the
compliance,deemed fulfilled if cannot be complied with
again.
Ex.; that B becomes a lawyer.

Iv again substantial or constructive compliance is

sufficient.

h. Negative potestative condition;

i. A institutes B provided he stops smoking.
ii. B gets the property upon giving security; and will have
to return the property in case of contravention of
condition, with fruits and interest .

i. Positive potestative condition;

 i. A institutes B provided the latter learns how to play the
piano.
ii. Upon A,s death ,the property is placed under
administration until the condition is fulfilled (art.880)
4. With term
a. Distinguished from condition
A term is sure to happen. It merely suspends the demandability of
a right.
Ex. I give this property to X upon his mother’s death. ( the mother
will surely die.)
A condition not only suspends the demandability,but even the
acquisition of the right itself. It may or may not happen.
Ex. I give this property to X if his mother dies of cancer.

b. In a disposition with a term , the heir acquires the right

pending the arrival of the term, and transmits the right to his
heir even before the arrival of the term ( art 878.NCC).this is
because the term is sure to happen.

But if the instituted heir under a suspensive condition dies before

the condition is fulfilled, he transmits nothing to his heirs because he
never inherited from the testator

c. Kinds of terms;
i. Suspensive ; beginning 2003.
ii. Resolutory ;effects cease on December 1,2003.
iii. Ex die in diem; from a certain day to a certain day,like
from year 2002 to 2010.
d. Rules to follow;
i. T institutes his brother A for 5 years after T’s death.
A enters possession at once ,which will end after 5
years.
 ii. T institutes his brother A 5 years from his ( T’s) death
This is a suspensive term .the legal heirs enter into
possession of the property in the meantime before the
arrival of term after giving security (art 885). A gets the
property only after 5 years from testator’s death.
iii. T institutes B subject to a suspensive condition;if T
dies ,the property shall be placed under administration
until the condition is fulfilled (art .880).
In suspensive term, the legal heirs enter into the
possession of the property before term arrives,subject
to giving security (art.885).
If the legal heirs do not give security,placed the
property under administration (Art 880)

iv. A institutes B upon the death of C.

1. Legal heirs possess property until the term arrives
after giving security. If security is not given ,place
the property under administration.
2. Instituted heir who dies before the arrival of the
term transmits his rights to his own heirs. This is
because the term is sure to come.

Modal institution

May be a statement of the object of the institution,or the

application of the property for a certain purpose,or a charge
imposed on the heir or legatee/ devisee.
a. examples ;
(i) I institute A to my estate for his legal education.
(ii)I institute A as my heir provided he devotes 50% of the
income of the property to the establishment of a
 professorial chair in civil law at the San Sebastian
College of Law.
b. Rules to follow;
(i) The inheritance can be immediately demanded
provided the heir gives security for compliance with
the wishes of the testator. ( Art. 882);
Heir must return property with fruits and interests if
obligation is disregarded ( Art. 882).
(ii)Heir must return property with fruits and interest if
obligation is disregarded (Art 882)
1. Distinguished from suspensive condition in that if
suspensive condition is not yet fulfilled, property is
not demandable even if security is offered. In modal
institution, property is immediately demandable
provided heirs gives security for compliance with
wishes of testator.

Legitime
1. Definition of legitime:
The part of the testator’s estate which cannot dispose because the
law reserved it for his compulsory heirs. (Art. 886, NCC)
2. What are compulsory heirs?
a. Primary compulsory heirs
i. Legitimate children and their legitimate descendants
ii. Surviving spouse
iii. Illegitimate children and their descendants whether
legitimate or illegitimate.
b. Secondary Compulsory Heirs
i. Legitimate parents and other legitimate ascendants
(They inherit only in default of legitimate children and
their descendants)
 ii. Illegitimate parents (other illegitimate ascendants not
included). They inherit only in default of legitimate and
illegitimate children and their respective descendants.
3. Remember:
a. Purpose of legitime is to protect the surviving spouse and
children from unjustified anger or thoughtlessness of the
testator
b. If there in so compulsory heirs, there can be no legitime
c. The testator cannot deprive the compulsory heirs of their
legitime except through valid disinheritance
d. The testator cannot impose conditions, substitutions, or
burdens on the legitime except the condition that the estate
will not be divided for a period not exceeding 20 years (Art.
1083)
e. Donations intervivos are to be reduced if found inofficious
(i.e., if the exceed the free portion)
f. Compulsory heirs are not compelled to accept their legitime
4. Legitimes of compulsory heirs
a. Legitimate children-1/2 of estate divided by number of
children
b. One legitimate child- still ½
c. One legitimate child and surviving spouse- Child-1/2 Surviving
Spouse-1/4
d. Two or more legitimate children and surviving spouse
Legitimate children-1/2
Surviving Spouse- Same share as one legitimate child
e. Two or more legitimate child, surviving spouse, illegitimate
children
Legitimate child-1/2
Surviving Spouse-Same share as one legitimate child (to be
taken from the free portion)
 Illegitimate child- each gets ½ of share one illegitimate child
(also to be taken from free portion)
f. Legitimate parents and surviving spouse- 1/2, ¼
g. Surviving spouse and illegitimate children;
Surviving spouse----1/3
Illegitimate children---1/3

h. legitimate parents,surviving spouse,illegitimate children----

Legitimate parents---1/2 ( even there is only one parent)
Surviving spouse------1/8
Illegitimate children ---1/4
i. legitimate parents only---------1/2
j. Illegitimate children only-----1/2
k. Surviving spouse only----1/2, but if marriage was in articulo
mortis testator died within 3 before their marriage ,1/3; if
parties, however had lived together for more than 5 years
before their marriage,1/2.
l. Legitimate parents and illegitimate children
Legitimate parents-----1/2
Illegitimate children----1/4
m. Illegitimate parents only----1/2
n. Illegitimate parents and surviving spouse ---
Illegitimate parents------1/4
Surviving spouse ----------1/4

o.illegitimate children only----1/2

p.illegitimate parents and illegitimate children

Parents----none

Illegitimate children---1/2
Remember also;

a. Legitimate children always get ½ of the estate as legitimate. And

this is true even there is only one child.
b. Legitimate parents as secondary compulsory heirs also always get
½ of the estate as their legitime, and this is true even there is
only one legitimate parent.
c. There is no representation in the ascending line.
d. The legitime of the surviving spouse must be paid first out of the
free portion; then, give the illegitimate children their legitime.
Therefore , if there are many illegitimate children ,each of them
might not get ½ of the share of a legitimate child.
e. There is also representation of illegitimate children.
f. Illegitimate children do not inherit abintestato from legitimate
children and relatives of their illegitimate father and mother
because of the barrier, and vice versa ( Art 992).
g. Brothers and sisters are not compulsory heirs ,but they are
intestate heirs. So , a testator can give his entire estate to
strangers in his will,excluding his brothers and sisters.
h. To determine the legitime ,get the value of the property minus
debt,plus the value donations subject to collation (Art.908).
i. Donations to children shall be charge to their legitime;donations
to strangers shall be charged to the free portion;if they are
inofficious, they shall be reduced (Art 909).
j. The legitime of legitimate parents shall be divided between them
equally.if one parent is dead ,the other gets the whole legitime.
k. If the testator has no legitimate parents but is survived by
ascendants of equal degree ,the legitime shall be divided equally
between paternal and maternal lines. If the ascendants are of
different degrees ,the ones nearest in degrees get the entire
legitime. (Art 889).
 5. Reserva Troncal
Art. 891. The ascendant who inherits from his descendant any
property which the latter may have acquired by gratuitous title
from another ascendant, or a brother or sister ,is obliged to reserve
such property as he may have acquired by operation of law for the
benefit of relatives who are within the third degree and who belong
to the line which said property came.(NCC).
Example ;

MOTHER (origin) FATHER (Reservoir or reservista)

(transmission by gratuitous title)

(transmission by operation of law i.e. by
legitime or by intestate succession)

Child

(propositus)

a. Mother gave land to child by donation or in her o will;

i.e.,by gratuitous title.

b. Child died with no descendant and no will,so father inherited land

intestate.or child gave land to father as the latter’s legitime in a will.

c. Father owns land only until he dies. Land is reserved by law in favor
of the relatives of the mother within the 3rd degree from the child ,who
are the reserves or reservatorios.

d. the reserves or reservatorios within the 3rd degree from the child
,are any of the following;
 i. Maternal haf-brothers and half- sisters (second degree)

ii. maternal half-nephews and half-nieces (third degree).

iii. maternal grandparents (second degree)

iv.maternal great grandparents (third degree)

v.maternal aunts and uncles (third degree)

MGGP

oReservatarios I MGP

Or Reservees MA

(Relatives of the MU
Mother
(origin)

Propositus within MHS MHB

Child
(propositus)

The 3rd degree in the MHN MHN

Maternal line.

e.Among the reserves, those in the direct line are preferred as against
the collateral line. Thus , a grand is preferred to a half-brother or sister.
Also ,the nearer excludes the farther.

f. Maternal half-nephews and half-nieces are preferred to maternal

aunts and uncles because they are also intestate heirs of the
propositus,while aunts and uncles are not.

g. children of first cousins are not reserves,because they are already 6th
degree from the propositos.
Other rules to remember;

a. Between the brother of the father and brother of the

mother, the property goes to the latter by reserve troncal.
b. Suppose the mother dies intestate,leaving a car to her child.
Later , the child dies intestate with no wife and no children.
The father inherits the car by intestate succession. This car is
reservable.
c. The prositus is the owner of the above car while alive. So he
can defeat the reserve by selling the car.
d. There is no reserve troncal if the child gives the property to
his father in a will out of the free portion,because that is not
by operation of law.
e. The reservista is a full owner of the property subject to a
resolutory condition; i.e.,upon his death ,the property goes
to the reserves.
f. The property cannot the used to pay the debt of the
reservista’s estate because it not part of his estate after his
death.
g. The reservista must inventory the property and must furnish
a bond,mortgage or any other security to secure the delivery
of the property or its value to the reserves.
h. The reservista is liable for all deterioration imputable to his
fault or negligence.
i. Land may be registered as subject to reserve troncal ,and if
there is such annotation in the title ,security is not necessary.
j. If the property is personal,the reservista may sell, donate ,or
pledge the property, but his estate must reimburse the
reserves the value of the property.
k. If the property is land, the reservista must annotate the
reserve troncal within 90 days from the time he accepts the
 inherit,ance(when there is no case filed in court) or 90 days
from the time it is awarded to him by the court(Art 199 and
191,Spanish mortgage law)
The reserves can judicially demand the annotation.
l. The reservees inherit the property from the propositus,not
from the reservista. They are conditional heirs of the
propositus.
m. There is representation in reserve troncal,but the
representative must also be within the third degree from the
propositus (like nephews and nieces).
n. Proceeds of insurance given to the beneficiary are not
subject to reserve troncal because this is not a donation.
o. If the mother gives a sweepstakes tickets to her son and the
ticket wins and later, the prize is inherited by the
father,there is no reserve troncal because the prize came
from the PCSO,not from the mother.
p. Prescription extinguishes the reserva troncal (30 years for
real property, 8 years for personal property).
q. If the property subject to reserva troncal is expropriated the
reserva continues on the indemnity.
r. If the property is insured and later destroyed ,the reserve
continues on the insurance proceeds.
s. The purpose of the reserve troncal is to keep the property in
the family to which it belongs (Velayo Bernardo v. Siojo, 58
Phil. 89 ).
t. Reserva troncal exist only in the legitimate family ;no reserve
exist in favor of illegitimate relatives.
u. Reserve maxima and reserve minima;
Explanation ;a son received from his mother P20,000
under her will.he also had properties of his own worth
P40,000. When the son dies without a spouse and without
 children,he left all his estate ( worth P60,000) to his father
ihis will. How much is the reservable property?
The legitime of the father in his son’s estate is P30,000
(1/2 of P60,000). Under the principle of reserva maxima,since
the P20,000 legitime of P30,000 received by the son from his
mother can be included or contained in his legitime of
P30,000, said P20,000 is reservable.but under the principle
of reserve minima,only ½ of P20,000 is reservable,on the
theory that only ½ of the P20,000 received by the son from
his mother went to the father by operation of law.
The reserva maxima is more in consonance with the
original objective of reserve troncal ,because it subjects to
the reservation the largest amount possible.
But the reserva minima is more just and more equitable
,more in line with the philosophy of the law of socialization
,and favored by Manresa and Scaevola.
v. How is the reserve extinguished?
i. Death of the reservoir or reservista.
ii. Death of all the would-be reservees ahead of the
reservoir.
iii. Accidental loss of the reservable property.
iv. Prescription (runs from the death of the reservoir) ---30
years for real property,8 years for personal property.

DISINHERITANCE

1. Meaning of disinheritance;
Art. 915. A compulsory heir may ,in consequence of
disinheritance, be deprived of his legitime,for causes expressly
stated by law. (NCC)
2. Purpose or object of disinheritance;
a. To maintain good order and discipline within the family.
(Castan).
b. To punish the ungrateful, the culpable, the cruel, the
unworthy heir,the unfaithful spouse.
3. Requisites of a valid disinheritance;
a. Disinherited heir must be clearly identified.
b. Must be for a cause provided by law (art. 915 )
c. Must be express ,stating the cause in the will (Art 916).
d. Cause must be legal, true, and existing (art. 916)
e. Must be unconditional.
f. Can’t be partial;must be total or complete. If partial ,
disinheritance is not valid, and the heir gets his or her
legitime.
4. Remember also ;
a.can be made only in a will. There is no inheritance in legal
succession.
b.Includes not only the legitime ,but also the free portion.
c.If will is revoked,disinheritance becomes ineffective.
d.Only compulsory heirs can be disinherited ,so bbrothers and
sisters cannot be the subject of disinheritance.
e.Reconciliation renders disinheritance ineffective.
f. In preterion ,the whole institution of heirs is annulled. In invalid
disinheritance ,the disinherited heir still gets his legitime.
g.Heirs of the disinherited heir represent the latter in the legitime
,but the disinherited heir shall not have the usufruct of the
property constituting the legitime. (art.923).
5. Problems;
a. T has 5 children . He made a will with only one provision ,i.e.,
disinheriting one of his children for living a disgraceful life. If T
 dies with an estate of P100,000, how would his estate be
divided ?

the disinherited child is not entitled to his legitime and also a share in
the estate as an intestate heir,since intestacy is only the presumed will of
the deceased .divide the estate among the other four children equally
or P25,000 each.

b. Suppose in problem (a), T also instituted is 4 other children as

heirs in his will. Divide the P100,000 estate.

Since the disinherited heir loses not only his legitime but any share
in the free portion, again divide the P100,00 estate equally among the 4
instituted children

c. T has 3 daughters. He made a will disinheriting one of them for

living a disgraceful life, and gave his entire P300,000 to his two
daughters. Divide the estate
The disinheritance is valid, so just divide the entire estate
equally between the two daughters who were instituted as
heirs
d. Suppose in Problem (c), the ground for disinheritance is that
the married a man that the father does like. Divide the estate
The disinheritance is not valid because the cause is not valid.
So the disinherited daughter gets her legitime of P50,000.
Then divide the free portion of P150,000 equally between the
free portion of P150,000 equally between the two other
daughters, which they got as instituted heirs in addition to
their legitime of P50,000 each
e. T’s will reads; ‘’ I disinherit my son A if he makes an attempt
against my life.’’ Is the disinheritance valid’’
No ,because it is conditional. And this is true even if A actually
makes an attempt against his father’s life after the execution
 of the will. But if A is convicted,he will not also inherit from T,
not because of the attempted disinheritance, but because he
is incapacitated under art. 1032 (2).
f. T disinherited his child C in his will, providing that C would
only get ½ of his rightful share in T,s estate. Is the
disinheritance valid?
No, because it is partial. So C still gets his legitime
6 . .Grounds for disinheritance

Of children,leg. Or Of parents, leg. Or Of spouse (Art.9210

illegitimate ( Art. illegitimate (Art.920)
919)
1.conviction of 1.---same -- 1.---same--
attempt against life
of testator, his
spouse, descendant
or ascendant.
Has accused testator 2.---same-- 2.—same--
of a crime punishable
by 6 yrs. Or more if
found to be
groundless.
3.conviction of 3.—same--- 3. when he/ she has
adultery or given ground for
concubinage with legal separation
testator,s’s spouse. (even if no case is
filed)
4.Refusal to support 4.refusal to support 4.unjustified refusal
refusal to support children and to support children
testator w/o descendants w/o or other spouse.
justifiable cause. justifiable cause.
5.Maltreatment of 5.Attempt against life5. when spouse has
testator by word or of other parent, given ground for
deed (conviction not unless there is loss of parental
 necessary) reconciliation. authority.
6.leading 6. loss of parental 6.same as No. 7 in
dishonorable or authority for causes case of parents.
disgraceful life. specified by law.
7.conviction of crime 7.caused testator to
punishable by civil make a will or to
interdiction. change one through
fraud, intimidation,
or undue influence.
8.abandonment of
children and
descendants and
inducing daughters
to live corrupt or
immoral lives or
attempted against
their virtue/
Note; Maltreatment
of child by parent is
not for disinheriting
parent because it is
a part of parental
discipline.

7. Reconciliation between testator and disinherited heir;

a. Subsequent reconciliation deprives the testator of the right
to disinherit, and any disinheritance already made becomes
ineffectual.
b. Reconciliation needs no special form. It can be express or
implied.
 c. If ground for disinheritance is also ground for unworthiness,
like abandonment of children or an attempt against the life
of the testator, the heir cannot also inherit.
But reconciliation extinguishes unworthiness as n
incapacity, because incapacity is only the presumed will of
the testator.
8. Ineffective disinheritance;
a. No cause for disinheritance is stated.
b. The cause is false.
c. The cause is not legal.
d. Subsequent reconciliation between testator and disinherited
heir results in ineffective disinheritance.
9. How disinheritance is revoked;
a. By subsequent reconciliation between testator and
disinherited heir.
b. By the making of a new will making the disinherited heir an
instituted heir.

LEGACIES AND DEVISES

1. Legacy and devise distinguished.

A legacy is gift of personal property given in will.
A devise is a gift of real property given in a will.
A legacy is ‘’ bequeathed’’; while a devise is ‘’devised’’.
2. Who has the duty to give the legacies and devises in a will.

a.if no one is charged with this duty in the will, the estate must give
them, as represented by the executor or administrator with a will
annexed.
 b. testator may impose the duty on the compulsory heirs as long as
their legitimes are not impaired; i.e.; legacies/ devises cannot be beyond
the free portion.(art .925).

Ex. ‘’I institute my child C as heir ,but he must give P10,000 to X.

c. .A legatee or devisee can also be charged with the duty of

giving a sub –legacy or sub-devise but only to the extent of
the value of the legacy or devise given him. (art. 925).
Ex,I give my NISSAN car to X, but he must give Y P500.
3. Indeterminate legacy ( art. 928);
a. Example is a legacy of an indeterminate or generic car.
b. Heir bound to deliver is liable for eviction.
c. If legacy is a specific, determinate car, heir is not liable for
eviction.
4. Legacy or devise of a thing belonging to another.(Art.930);
a. Void , if the testator erroneously believed that he was the
owner of the thing when in reality, he is not the owner.
b. But if the thing subsequently becomes his, the disposition is
valid.
c. If the testator orders the heir, legatee, or devisee to acquire
the property from another, the latter must do so; if the owner
refuses to sell or demands an excessive price, he is obliged
only to give the just value of the thing (Art.931).
5. Legacy or devise of thing already belonging to the legatee or devisee
(art .932);
a. If the t (hing already belongs to the legatee or devisee at the
time of the execution of the will, the legacy or devise is
ineffective.
b. If the thing is subject to an encumbrance or interest of
another person , the legacy or devise is valid only as to the
interest or encumbrance.
 c. If thing bequeathed belonged to the legatee or devisee, legacy
or devise is without effect even if legatee or devisee
subsequently alienates the thing (Art.933)
d. If after alienating the thing , the legatee or devisee
subsequently reacquires it gratuitously, the legacy or devise is
still void.
But if he reacquires it by onerous title , he is entitled to
reimbursement of what he paid ( Art. 933).
6. Legacy of a thing pledge or mortgage to secure a debt ( art. 934);
a. If pledge or mortgage before the execution of the will the
estate must pay the debt.
b. If pledge or mortgaged after the execution of the will , still the
estate must pay the debt.
c. Other charges like easement,usufructs ,leases which are real
rights, pass to the legatee or devisee.
7. Legacy of credit, or remission or release of a debt (art .935);
a. Effective only as regards the credit or debt existing at the time
of the testator’s death.
b. The legacy comprises all interests due to the testator at the
time of his death.
c. Legacy lapses if the testator later brings action against the
debtor.
d. If generic, comprises all credits /debt existing at the time of
execution of the will (art.937)
8. Legacy to the debtor of thing pledge by him (art.936)
a. Only the pledge is extinguished, the debt remains.
b. Can also be applied to mortgage, antichresis, or any other
security
9. Legacy or devise to a creditor (Art 938):
a. Shall not be applied to his credit, or to what the testator owes
him, unless the testator so declares
 b. In the latter case, the creditor can still collect excess if any, of
the credit or of the legacy or devise
10. If the testator orders the payment of a debt (Art 939):
a. If he does not really owe the alleged debt, the disposition is
void
b. If the order is not to pay more than the debt , the excess is not
due
c. This is without prejudice to the payment of natural obligation,
like a prescribed debt.
11. Alternative legacies and devices (Art. 940):
a. The choice is with heir, or the executor or administrator.
b. If the heir, legatee, or devisee who is bound to give the gift
dies, the right passes to their heirs
c. The choice, once made, is irrevocable
d. Apply rules on obligations in general
12. Legacy of generic personal property or indeterminate real
property (Art 941)
a. Legacy of generic personal property is valid even if there are
no things of the same kind in the estate
b. But devise of indeterminate real property is valid only if there
is immovable property of the same kind in the estate.
c. The right to choose the legacy belongs to the executor or
administrator who shall deliver a thing which is neither of
inferior or superior quality
d. If the choice is given to the heir, legatee, or devisee, he may
choose whenever he prefers (need not be of medium quality)
(Art 942)
e. If the heir, legatee, or devisee cannot make the choice, the
right passes to his heirs (Art 943)
13. Legacy of education (Art 944)
 a. Lasts until legatee is of age, or beyond the age of majority in
order that he may finish some professional, vocational, or
general course, provided he pursues his course diligently
b. If the testator did not fix the amount, it is fixed in accordance
with the social standing and circumstances of the legatee and
the value of the estate
14. Legacy of Support (Art 944)
a. It lasts during lifetime of the legatee
b. If the testator used to give the legatee a sum of money for
support, give same amount, unless it is markedly
disproportionate to the estate
c. If the testator did not fix the amount consider the social
standing and circumstances of the legatee and the value of the
estate
15. When does the legatee or devisee acquire ownership of the
gift? (Art 947)
a. If the legacy or devise is pure and simple, from death of
testator, and he transmits it to his heirs (Art 947)
b. If gift is specific or determinate, also upon the death of
testator, and gift includes growing fruits, unborn offsprings
and uncollected income, but not income due before the
testator’s death (Art 948)
c. If the gift is specific and determinate, the risk of loss or
deterioration is on the legatee or devisee, as well as any
increase and improvement.
d. If the gift is generic, fruits and interests from the time of death
of the testator pertain to the legatee or devisee if the testator
expressly ordered the same (At 949)
16. Order of preference if the estate is not sufficient to cover all
legacies and devises ( Art.950);
a. Remuneratory
 i. Those which testator gives because of his moral
obligation to compensate certain persons for services
which do not constitute recoverable debts, like legacy to
one who saves the life of the testator.
ii. Entitled to preference because they are moral
obligations of the testator
iii. Remuneratory nature can be proven by extrinsic
evidence
b. Those declared by the testator as preferential
c. For support
d. For education
e. Legacy or devise of specific, determinate thing in the estate.
f. Others, pro rata
17. How legacy or devise is delivered (Art 951)
a. With all accession and accessories and in the condition it was
at the time of the testator’s death
b. Delivery the very thing given (if specific or determinate), not
its value
c. Legacies of money must be paid in cash
d. Expenses of delivery are for the account of the heir or estate,
but without affecting the heir’s legitime
18. Acceptance of legacy or devise:
a. Gift cannot be accepted in part if it is onerous. (Art 954)
b. Heirs of legatee or devisee can accept the gift if the legatee or
devisee dies after the death of the testator, not before (id)
c. Legacy or devise not accepted shall be merged into the mass
of the estate, except in substitution or accretion (Art. 956)
d. If the compulsory heir is also a legatee or devisee, he can
accept or waive his inheritance or the gift, or waive both (Art
955)
19. When does legacy or devise become of no effect (Art 957)
 a. If the testator transforms the thing such that does not retain
its original form or denomination
b. If the testator alienates the thing by any title or of any cause.
Reacquisition of the thing by the testator does not make the
legacy or devise valid, unless it is affected by right of
repurchase.
c. If the thing is totally lost during the lifetime or after the death
of the testator
20. Mistake as to name of thing given (Art 958)
a. Of no consequence, if thing can be identified
b. Ex: “I give X my only car, a NISSAN 93.” This is effective even if
the car is a NISSAN 92
21. Disposition in favor of testator’s relatives (Art 959)
a. Limited to 5th degree relatives of the testator
b. Nearer excludes farther
c. No preferences as to lines. Grandson and sister are both
relatives within second degree. What is important is nearness
of degree
d. Does not apply to relatives of wife

Legal Succession

1. Legal succession defined:

That kind of succession prescribed by law (and presumed by it

to be the desire of the deceased) which takes place when the expressed
will of the decedent has not been set down in a will

2. Basis of legal succession

 Because unexpected death may come to any person, the law
presumes what would have been his last wishes had he executed a
will while still alive, taking into consideration his love and affection
for those closest to him
3. When does legal succession take place? (Art 960, NCC)
a. When a person dies without a will or a void will, or a will that
has lost its validity (like a revoked will)
b. When the will does not institute an heir or does not dispose of
all the properties of the testator (partial intestacy)
c. If a suspensive condition attached to the institution of heir in a
will does not happen;
d. If the heir predeceases the testator, or is incapacitated to
inherit, or repudiates the inheritance, and there is no
substitution or accretion;
e. When the heir is incapable of succeeding
f. Upon the expiration of resolutory term attached to the
institution of heir
g. Upon fulfillment a resolutory condition attached to the
institution of heir, rendering the will ineffective
Ex: A has a brother B, his only relative.

A makes a will giving a certain house to C provided he passes

the 2002 bar examinations; and giving a certain car to D, with
E as D’s substitute in case of predecease.

D dies in1997. A dies in 1998. C flunks the 2002 bar exams.

Ans: the house goes to the brother B as intestate heir;

The car goes to E as the substitute of D
4. Rules to remember in legal or intestate succession
a. An intestate heir is not necessarily a compulsory heir (like
brother or sister)
b. Relatives nearer or nearest in degree exclude the more distant
ones, saving the right of representation when proper (Art 962)
c. Relatives in the same degree inherit equal shares, subject to
the rule on full or half-blood brothers and sister (Art 1006),
and the division between the paternal and maternal lines (Art
987)
d. Intestate shares are either equal or more than legitime (like
the case of the surviving spouse)
e. There is no representation in the ascending line (Art 972)
f. There is representation in the descending line, whether full or
half blood descendants. (Art 972)
g. There is also no representation in the illegitimate line (Art 989)
h. In the collateral line, there is representation only in favor of
children brothers and sisters, whether full or half blood (Art
972)
i. Grandchildren of brothers and sister cannot represent
ii. Children of first cousins cannot represent; but first
cousins represent because they are the children of
brothers and sisters
iii. Representation in a collateral line is truly only in legal
succession, because collaterals are not compulsory heirs,
and a voluntary heir cannot be represented.
i. In partial intestacy, legacies and devisees are charged to the
free portion proportionately against heirs who are given more
than their legitimes, but in no case shall the legitimes be
impaired.
j. Grandchildren always inherit by representation whether they
concur with the children or not. They inherit in their own right
 only when all the chikdren renounce, and they share equally
or per capita (Art 982)
k. Nephews and nieces inherit either by representation or in
their own right (Art 1005)
i. They inherit by right of representation when they concur
with aunts and uncles, who divide per capita, while
nephews/nieces divide per stirpes. (Calisterio v.
Calisterio, GR 134647, April 6, 2000)
ii. They inherit in their own right when they do not concur
with aunts and uncle; in this case, they divide per capita
or equally (Art 975)
l. Illegitimate children do not inherit abintestato from the
legitimate children and relatives of his illegitimate father or
mother; nor do said legitimate children and relatives inherit
from the illegitimate child (Art 992)
m. There is also reserva troncal in legal succession, because legal
succession is by operation of law
n. A renouncer can represent but cannot be represented (Arts
976,977)
5. Other rules to remember:
a. If a man dies survived by a brother and a cousin, the brother
excludes the cousin
b. If the deceased has two brothers, they get equal shares (Arts
1004)
c. If a man is survived by a grandfather and a brother (both 2
degrees), the grandfather inherits alone because the direct
line is preferred to the collateral line
d. Half-sister excludes nephews and nieces
e. An aunt is excluded by nephews and nieces although both are
4th degree relations, because nephews and nieces are 4th in
the order of legal succession, while an aunt is only 5th
f. In giving the shares of illegitimate children, the shares of the
legitimate children not be impaired (1/2 of the estate), if there
are many illegitimate children, give what corresponds to the
legitime of the legitimate children first (1/2 of the estate),
then divide the rest among illegitimate children
g. If the are relatives of the same degree and some repudiate or
are incapacitated, their shares accrue to the others of the
same degree, save the right of representation (Art 968)
Example:

Parents
(both dead_

A B C D

A-1 B-1

A, B, C, and D are brothers. If their parents both died, leaving

an estate of P100,000, and A repudiates his share while B
turns out to be incapacitated, the share of A accrues to C and
D, because there is no representation in repudiation, while the
share of B goes to his children B-1 by representation, because
the share of A accrued to them

h. If in the above example, all the brothers and sisters repudiate,

the next in line (nephews and nieces) get the estate in their
own right per capita, not by representation because again,
there is no representation in repudiation
 So, if A, B, C, and D all repudiate, the P100,000 estate of
their parents will go to A-1 and B-1, which they will divide per
capita, or P50,000 each
i. If the nephews and nieces alone survive, they inherit in equal
shares (Art 975)
6. The sharing in Intestate Succession:
a. Legitimate children alone-All
b. Legitimate children-Surviving spouse-S gets the same share as
one legitimate child. If there is only one child, they divide ½, ½.
c. Legitimate children and illegitimate children- Proportion of 10-
5, provided legitimes of the legitimate children are not
impaired. So, if there are only 2 legitimate children and 10
illegitimate children, since the legitime of the 2 legitimate
children is ½ of the estate, they get ½ of the estate, while the
illegitimate children will just have to divide the other P50,000
equally among themselves
Thus, if the parent’s estate is P100,000 the two
legitimate children get P50,000 or P25,000 each, while the ten
illegitimate children will divide the other P50,000 equally
among themselves or only P5,000 each.
d. Legitimate children-illegitimate children-surviving spouse:
Legitimate children and illegitimate children Proportion
of 10-5.

Surviving Spouse- Same share as one legitimate child, to

be taken from the other half of the estate so that the share of
the legitimate children of ½ of the estate will not be impaired.

So if there are many illegitimate children, they will again

have to share what remains of the other half of the estate
after giving the share of the surviving spouse, so that it can
 well happen that each illegitimate child cannot get ½ of the
share of a legitimate child.

e. One legitimate child-surviving spouse- illegitimate children:

One legitimate child-1/2
Surviving Spouse-1/2
Illegitimate children-1/4
f. Illegitimate children alone – ALL
g. Illegitimate children and surviving spouse-1/2, ½
h. Surviving spouse alone-all
i. Legitimate parent alone-all
j. Legitimate parent, surviving spouse, illegitimate children- ½,
1/4, ¼.
Remember that when there are legitimate children
ascendants are excluded
k. Legitimate parent and illegitimate children- ½, ½
l. Legitimate parent and surviving spouse- ½, ½
m. Surviving spouse and illegitimate parents- ½, ½
n. Illegitimate parents alone-all
o. Surviving spouse, brothers and sisters- ½, ½
p. Brothers and sisters, nephews and nieces-All
q. Other collaterals- All
i. Nearer excludes the farther
ii. Does not extend beyond 5th degree
iii. A half sister excludes all other relatives

7. Intestate succession in adoption:

a. In the intestate succession of the adopter, “the adopter(s) and
the adoptee shall have reciprocal rights of succession without
distinction from legitimate filiation” (Art 18, Rep. Act 8552)
 b. In the intestate succession of the adopted child, the adopted
child remains an intestate heir (Art 984, NCC)
c. In the intestate succession of the parents by nature and other
blood relatives of the adopted child, the adopted child remains
an intestate heir (Art 189, par (3), Family code)
d. If the adopter predeceases the adopted child, the latter
cannot represent the former in the inheritance from the
legitimate relatives of the adopter and the adopted.

Representation

1. Representation defined:
Representation is “a right by fiction 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” (Art 970, NCC)

2. When does representation exist:

a. In testate succession:
i. Exist in predecease, incapacity, and disinheritance.
ii. Covers only the legitime, which goes to the
representative by operation law.
iii. There is no right to represent to voluntary heir
b. In intestate succession:
i. Exist also in predecease and incapacity
ii. Covers all that the person represented could have
inherited
3. Rules to remember:
a. An adopted child cannot represent. Neither may an adopted
child be represented
b. The representative succeeds not the person represented but
the one whom the person would have succeeded. (Art 971)
i. Since the representative does not succeed the person
represented, he is not liable for the debts of the latter
ii. Because the property inherited by the representative
does not come from the person represented, if under the
will of the latter, the representative is given less than the
other representatives, the representative still gets an
equal share in the property of the person whom the
person represented would have succeeded.

Ex: T has 2 children A and B. A has two children A-1 and

A-2.

If A dies giving 2/3 of his estate to A-1 and 1/3 to A-2, if

later, T dies, and A-1 and A-2 will get equal shares in A’s
inheritance from T or as A’s representatves

c. The right of representation takes place only in the direct

descending line; never in the ascending line (Art 972)
d. In the collateral line, representation takes place only in favor
of the children of brothers and sisters, whenever full or half
blood (Art 973, sec part). Hence, grandnephews and
grandnieces do not represent
e. The representative must himself be capable of succeeding the
decedent (Art 973)
Ex: A has a child B who has a child B-1. If B disinherits B-1 in his
will, B-1 can still represent B in the succession of A; because B-
1 succeeds A, not B
f. The representative must at least be conceived at the time
successions opens
 g. When there is representation, the heirs inherit per stirpes, not
per capita
h. A person may represent him but may not be represented (Art
976, 977)
i. Illegitimate children of legitimate children cannot represent
because of the barrier, but illegitimate children of illegitimates
can represent
j. When nephews and nieces survive with uncles and aunts, they
inherit by representation. If they alone survive, they inherit
equal portions or per capita (Art 975)
i. A died intestate leaving an estate worth P24,000. He is
survived by his wife W, his brother B, and C. Divide A’s
estate
W gets ½ or P12,000
B gets P6,000 (1/2 of the other P12,000)
C-1 and C-2 gets P3,000 each (They divide per
stripes the remaining P6,000)
ii. Suppose in the above problem, B is also dead, survived
by his son B-1. How should A’s estate be divided
W gets ½ or P12,000
Nephews B-1, and C-1, and C-2 divide the other
P12,000 per capita because they alone survive, their
parents being already dead and they have no surviving
uncles or aunts.

Accretion

1. Meaning of accretion:
“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” (Art 1015, NCC)
2. Reason for accretion:
Based on the presumed will of the deceased that he prefers
to give certain properties to certain individuals, rather than to his
legal heirs.
Thus, accretion is preferred to intestacy
3. Requisites of accretion:
a. Unity of object (the same inheritance, legacy, or devise).
b. Plurality of subjects (two or more persons are called to the
same property pro indiviso).
c. Vacant portion: Due to –
i. Repudiation
ii. Pre-decease
iii. Incapacity
iv. If a suspensive condition is not fulfilled
v. If a particular heir cannot be identified
4. Is there accretion in legal succession?
Yes. Art 1018 provides that in legal succession, the share of
the person who repudiates the inheritance always accrues to his co-
heirs

Art. 1018 applies also to incapacity, without prejudice to

representation (Manresa)

Art 1018 does not speak of predecease, because here, there is

no vacant portion; that is, the predeceased heir never had a chance
to inherit
5. Accretion among compulsory heirs
Takes place only when they are instituted to the free portion. If it is
the legitime that is repudiated, other compulsory heirs take the
 share of the repudiating heir in their own right, not by accretion (Art
1021)
6. Accretion also takes place among devisees, legatees, and
usufructuaries under the same condition established for heirs (Art
1023)
7. Examples:
a. A gives a particular car to X and Y in his will.
If X repudiated, entire car goes to Y
If X predecease A, the car also goes to Y
b. T gives the first floor of a house to X, and the second floor to Y.
Accretion would not apply here, because the shares of X and Y
have been earmarked
c. A gives ½ of his money in the PNB to X and ¾ to Y. Accretion
takes place even if the shares are not equal
d. T left his nephews A, B, and C all his money at PNB at the time
of his death. When T died, he had P30,000 at PNB. A however,
died before T, leaving child A-1.
Who gets the P30,000?
B and C get A’s share by accretion
A-1 does not inherit because there is no representation among
voluntary heirs
e. T instituted his only cousin and the latter’s daughter as his
only heir. If the cousin turns out to be incapacitated, who gets
his share, his daughter or T’ intestate heirs?
The daughter by accretion
f. A and B, are brothers of T, are the latter’s only surviving
relatives. T dies
i. If A repudiates, B gets A’s share by accretion
ii. Suppose A has a child, his child cannot represent him
because one who renounces cannot be represented
 iii. If A is incapacitated instead of having repudiated his
share, will his share accrue to B?

No, because A’s child gets A’s share by

representation. In the collateral line, intestacy, children of
brothers or sisters represent

If this is testacy, A’s child cannot represent because

there is no representation among voluntary heirs, so A’s
share will accrue to B

8. Other cases:
a. T institutes in his will two legitimate children X and Y, and
Friend F, to his estate of P60,000. T dies divide his estate.
X gets P15,000 (his legitime) plus P10,000of the free portion.
Y gets the same share as X.
F gets P10,000.
b. T has two legitimate children A and B . in his will, he left his
estate worth P100,000 to his two children, A and B, ¼ each,
and ½ to his friend F, who has a child F-1.
If F predeceases T, his child F -1 cannot represent him because
he is a voluntary heir. So his share goes to A and B as intestate
heirs. (Art.1022)
If B predeceases T, his share goes to A in the latter’s own
right, not by accretion. So A gets his own legitime of P25,000
and B ‘s legitime of P25,000. F gets P50,000.
c. T gave P10,000 deposited at PNB to friend F, and P10,000
deposited at PBC to friend F-1. No substitute was appointed. S,
sister of T was not given anything .if F repudiates, who gets his
share.?
There is no accretion here because the shares are
earmarked. So S , sister, gets F,s share as sole intestate heir.
CAPACITY TO SUCCEED BY WILL OR BY INTESTACY

1. Applies to both testate and intestate succession.

2. Capacity to succeed is also called passive
testamentary capacity.;
3. Kinds of incapacity;;
a.absolute---cannot inherit fromanybody.
b. Relative
i. because of possible undue influence (Art.1027)
ii. because of public policy and morality (art. 1028
in relation to Art. 739).
ii. Iii.because of unworthiness (Art.1032).
4. Absolute incapacity;
a. Individuals, corporations,associations not permitted by law or
their charter to inherit (Art.1026,1027 (6)).
But all other corporations or entities (the State,provinces,
municipal corporations,private corporations,organizations, or
association for religious, scientific, cultural, educational, or
charitable purposes) may inherit under a will (Art. 1026, first
par.).
b. A child not yet conceived, or abortive infants (Art.1025).
5. Incapacity to succeed because of possible undue influence
(Art.1027);
This incapacity does not include the legitime orintestacy, because
heirs inherit by law.
a. Priest who heard last confession or gave spiritual aid during
last illness of decedent (Art. 1027, (1)).
 i. Reason; To safeguard the heirs from the sinister and
undue influence which may be exercised by a priest or
minister over a dying man.
ii. Undue influence is conclusively presumed, but can be
cured by evidence that there was no undue influence.
iii. If the priest is a compulsory or intestate heir of the
deceased, his legitime or intestate share is not included
in the incapacity.
b. Relatives of the priest in (a) within the 4th degree of
consanguinity, or the church or the organization to which such
priest belongs (Art.1027 (2)).
c. Guardian with respect to testamentary disposition of ward
before approval of guardian’s final accounts (Art. 1027,(3)).
i. Except when guardian is an ascendant, descendant,
brother or sister or spouse of the ward, in which case
disposition is valid.
ii. Relatives of the guardian are not included in the
incapacity.
d. Attesting witness to descedent’s will or the spouse , parents or
children of such witness ,or anyone claiming under such
witness,spouse, parents or children (Art.1027 (4)).
i. Brother, sister,and grandchildren and other descendant
are not included.
ii. If there are more than three attesting witnesses,
incapacity does not apply.
iii. The notary public who acknowledged the testator’s will
is not disqualified.
e. Physician, surgeon, nurse, health officer, or druggist who took
care of testator during his last illness (Art.1027 (5))
i. Relatives of the physician, etc. are not included.
 ii. The care of the testator must be continuing or regular
not an isolated service.
iii. Physician , etc. is not disqualified to inherit by intestacy
because the law says ‘testator’, and intestacy takes place
by operation of law.
f. Individuals , association and corporations not permitted by law
to inherit (Art.1027 (6)).
6. Incapacity by reason of public policy or morality (Art.1028)
This is the same as void donations in Art 739, NCC

a. Made between persons who were guilty of adultery or

concubinage:
i. Criminal conviction not necessary; guilt can be proved
civilly
ii. Legacy or devise to a concubine of the testator in the
latter’s will is void
b. Made between persons who were guilty of the same criminal
offense, in consideration thereof
Ex: A and B committed murder and were duly convicted. In A’s
will, he gave B a legacy for cooperating him in the murder. The
legacy is void.
c. Made to a public officer or his wife, descendants, and
ascendants, by reason of his office.
i. Example is a disposition in the will of an employee in
favor of his superior so that he (the employee) can get a
promotion
ii. But if the disposition is made by a superior in favor of an
employee, the disqualification does not apply, unless
morality is involved, like if the employee is the mistress
of the superior officer.
7. Special dispositions:
a. For prayers and pious works for the benefit of the soul of the
testator, made in general terms (Art 1029):
i. Application of disposition must not be specified; i.e.,
general
ii. Executor must deliver ½ to the church to which the
testator belongs, and ½ to the State
iii. Action of executor must be with court approval
b. Disposition in favor of the poor in general (Art 1030)
i. Limited to the poor in the domicile of the testator at the
time of his death
ii. The following determines the distribution
1. Persons appointed by the testator
2. If one is appointed by the testator, the executor
determines;
3. If there is no executor, the municipal judge, mayor,
and municipal treasurer, who shall decide by a
majority of votes, subject to the approval by the
RTC judge.
iii. The above rules also apply even when the testator
specifies the poor of a definite locality.
c. Provisions in favor of a disqualified person even in the guise of
an onerous contract or made through an intermediary (Art.
1031)
i. Void
ii. Refers to absolute incapacity or incapacity by reason of
possible influence or immorality
iii. Unworthiness is not included, since there can be
condonation in unworthiness. Legacy in favor of a person
disqualified by unworthiness is implied condonation.
8. Incapacity by reason of unworthiness (Art 1032)
a. Parents who have abandoned their children or induces them
to lead immoral lives or attempted against their virtue (Art
1032 (1));
i. Applies to daughters and sons, and even grandchildren
ii. Attempt “against their virtue” does not need criminal
conviction
b. Any person convicted of an attempt against life of the testator,
his spouse, descendant, or ascendant (Art 1032 (2));
i. Since conviction is necessary, if the testator dies before
conviction, await final judgment
ii. An acquittal on reasonable doubt the incapacity
iii. Heir need not be convicted before testator’s death. If
conviction comes after testators death, effect is
retroactive
iv. Pardon by the president does not erase the incapacity
v. If heir does before final judgment, his heirs can still
inherit because he has not been convicted, as long as
testator dies ahead of him
c. Any person who has accused the testatorof a crime punishable
by six years of imprisonment or more if accusation has been
groundless (Art 1032, (3)):
i. Acquittal must be definite
ii. If acquittal is based in reasonable doubt, there is some
ground for the acquisition; hence, incapacity does not
arise
d. Failure to report violent death of testator within one month
(Art 1032 (5)):
i. Of doubtful application now, since under present law, no
one is really bound to make accusation except the
authorities concerned
 ii. Heir or legatee or devisee should be at least 21
e. Conviction of adultery or concubinage with spouse of testator
(Art 1032 (5)):
i. Conviction by final judgment is necessary
ii. The guilty spouse is not included in this incapacity but he
or she cannot also inherit if there is already a decree of
legal separation between testator and spouse (Art 63
(43), Family code)
f. Any person who causes testator to make a will or to change by
fraud, violence, intimidation, or undue influence (Art 1032 (6))
g. Any person who by the same means mentioned in (f) prevents
testator from making a will or from revoking one already
made, or who supplants, conceals, or alters the latter’s will
(Art 1032 (7))
h. Any person who falsifies or forges a supposed will of the
deceased
9. Condonation
a. Cause of unworthiness is without effect if there is condonation
(Art 1033):
i. Implied condonation: If, having knowledge of the act of
unworthiness, the testator gave the person concerned
an inheritance, legacy, or devise
ii. Express condonation: If, not knowing of the act of
unworthiness at the time of the execution of the will, but
having known of the same subsequently, the testator
condones it in writing, public or private
b. If implied condonation is made in a void will or revoked will,
the incapacity remains

10. When is capacity or incapacity to be judged (Art 1034):

 a. Consider the same at the time of the death the testator.
b. In the second, third, and fifth paragraphs of Art 1032, wait for
final judgment
c. If the institution is conditional, consider the time if compliance
or fulfillment of the condition is fulfillment of the condition
i. Condition here is suspensive not resolutory
ii. If heir, legatee, or devisee dies before condition is
fulfilled, testamentary disposition becomes inoperative
d. Capacity to succeed is governed by the law of the nation of the
decedent, whether succession is testate or intestate (Arts.
1039; 16, sec par., NCC)
11. Prescriptive period for declaration of incapacity and recovery
of property (Art 1040)
a. Within 5 years from the time incapacitated person took
possession of property (Art 1040):
b. Anyone who has as an interest in the succession (person who
inherits in place of the incapacitated heir) may bring the action
12. Representation in case of incapacity (Art 1035)
a. Representation of the incapacitated person by his children or
descendants is only in the legitime because there is no right of
representation with respect to the free portion
b. But the incapacitated heir is excluded from the usufruct and
administration of the property in question.
13. Effects of acts of incapacitated heir, legatee, or devisee with
respect to hereditary property:
a. Alienation and acts of administration before the judicial order
of exclusion are valid as to third persons who acted in good
faith (Art 1036)
b. Co-heirs have, however, the right to recover damages from
the incapacitated heir (id)
 c. Incapacitated heir may demand indemnity for expenses for
preservation of property, and may enforce credits due to him
from the estate (Art 1037)
d. As to improvements introduced by the incapacitated person
apply the rules on possession in good faith or bad faith.
e. Incapacitated persons must return property together with its
accession (like the increase of property by alluvium) (Art 1038)
f. Incapacitated person is liable for all fruits and rents received
or could have been through the exercise of due diligence (id)

Acceptance and Repudiation of Inheritance

1. General principles:
a. Acceptance or repudiation is a purely voluntary and free act
(Art 1041, NCC)
b. It is more usual to accept than to repudiate; hence, while
acceptance may be presumed, repudiation requires formalities
c. There can be partial acceptance and partial repudiation,
because no one can be compelled to accept the generosity of
another
d. Even the legitime may be repudiate, because no one can be
compelled to accept the generosity of another
e. The effects of acceptance or repudiation always retroact to
the moment of death of the deceased (Art 1042)
f. No person may accept or repudiate an inheritance unless he
certain of:
i. The death of the testator
ii. His right to the inheritance (Art 1043)
g. If an heir dies without having accepted or repudiated, his right
shall be transmitted to his heirs (Art 1053)
h. If several heirs are called to the same inheritance, some may
accept and others may repudiate (Art 1054)
 i. If a person who is called to the same inheritance by will and ab
intestato repudiation includes his capacity as intestate heir
(Art 1055)
If the heir repudiates the inheritance as intestate heir
without knowledge that has been named as testamentary heir,
he may still accept testamentary heir, the repudiation includes
his capacity as intestate heir (Art 1055)

j. Acceptance or repudiation, once made, is irrevocable and

cannot be impugned except for causes that vitiate consent, or
when an unknown will appears (Art 1056)
2. Forms of acceptance:
a. Express acceptance: Public or private document (Art 1049)
b. Implied acceptance
i. Results from acts by which intention to accept is
necessarily implied, or which one would have no right to
do except in the capacity of an heir (Art 1049)
ii. Acts of mere preservation or provisional administration
do not imply acceptance (id)
iii. Examples of implied acceptance (Art 1050)
1. If heir sells, donates, or assign right to a stranger, or
to his co-heirs or any of them
2. If heir renounces right, even gratuitously, for
benefit of one or more of his co-heirs
3. If heir renounces right for a price in favor of all his
co-heirs indiscriminately; but if renunciation is
gratuitous and co-heirs in whose favor renunciation
is made would get right by accretion, inheritance,
inheritance is not deemed acceptance
3. Who may accept or repudiate:
a. Any person who has free disposal of his property (Art 1044)
 b. Minors and incapacitated persons:
i. Acceptance may be made by parents or guardians (id)
ii. Repudiation by parents or guardian must be with judicial
authorization (id)
c. Deafmutes (Art 1048)
i. If literate, he can accept or repudiate personally or
through an agent
ii. If illiterate, acceptance must be by guardian, who can
also repudiate but with judicial approval.
d. Inheritance left to the poor (Art 1044)
i. Right to accept or repudiate personally or through an
agent
ii. If illiterate, acceptance must be by guardian, who can
also repudiate but with judicial approval
e. Corporations (Art 1045):
i. Acceptance may be made by their lawful representatives
qualified to acquire property in their behalf
ii. Repudiation may be made by the same representative
but only with court approval
f. Public officials establishments (those devoted to public
purposes like charity and education and supported by public
funds) (Art 1046)
Approval of the proper government agency or
department head is necessary
4. Acceptance by creditors (Art 1052)
a. Creditors may accept if repudiation by heir prejudices them
b. Creditors must petition the court to allow them to accept in
name of heir
c. Acceptance by creditors should be only to the extent of their
credits
 d. Any excess after acceptance by creditors pertains to the
proper testate or intestate heirs
5. Period for accepting or repudiating (Art 1052)
a. Thirty days after court issues an order of distribution
b. If there is no acceptance or repudiation within said period,
inheritance is deemed accepted.

Collation

1. Meaning of collation
it has two meanings:
First: Computing or adding certain values to the estate, and
charging the same to the legitime (Arts. 1061, 1062, 1063, 1064,
NCC)
Second: Computing or adding certain values to the estate, and
charging the same to the free portion (Arts 1062, 1063)
2. Meaning of “not collationable”
First, property or value should be computed or added, but
should be charged to the free portion (not to the legitime)
Second, property should not be computed or charged to the
estate at all, because it is not part of the estate. (Art. 1067), like
expenses for support education, medical attendance, customary
gifts.
3. As a general rule, all donations inter vivos, whether given to
compulsory heirs or to strangers, must be reduced if found
inofficious.
4. Only the value of the thing donated at the time if the donation
should be collated (Art 1071)
5. Collation by compulsory heir:
a. Compulsory heirs must bring to collation any property
received as donation or by gratuitous title, in order to
determine the legitime (Art 1061)
 Reason: Every donation inter vivos to a legitimate child is
generally considered an advance on his legitime
b. The surviving spouse is a compulsory heir, but she is not
included in Art 1061 because:
i. Donations during the marriage are null and void
ii. Donations propter nuptias to a future spouse is donation
to a stranger and must be imputed to the free portion
because at that time, the done was not yet a spouse,
hence, not a compulsory heir.
c. Proceeds of life insurance are not collationable because they
are not considered donations
d. When collation does not take place among compulsory heirs
(Art 1062);
i. When donor expressly provided, i.e., he does not want
donation to be charged to an heir’s legitime.
But it still be imputed to the free portion in order to
compute the legitime of the compulsory heirs (Art 1062)
ii. If the donee repudiates the inheritance, the donation
shall be charged to the free portion.
Ex: D has 2 sons, A and B. He gave A a donation of
P10,000 expressly stating in the donation that the same
was not collationable. If D later dies intestate leaving an
estate of P90,000, A and B will each get P45,000.
Obviously, D wanted to give A a preference of P10,000.
Anyway, the legitime of B has not been impaired
6. Is a legacy or devise subject to collation?
Art. 1063. Property left by will (like a legacy or devise) is not
deemed subject to collation if the testator has no otherwise
provided, but the legitime shall in any case remains impaired
 a. This means that the legacy or devise should be imputed to the
free portion, not the legitime
b. Ex: T has 2 legitimate children, A and B. In T’s will, he gave A a
legacy of P10,000. There was no other provisions in his will. If
T dies with an estate of P100,000 , how should be the estate
divided?
Answer: Give P10,000 legacy to A, and divide the P90,000
between A and B, or P45,000 each. The P10,000 legacy to A
does not impair B’s legitime, which is P25,000 (1/2 of P50,000)
c. Suppose in the above example, T gave P10, 000 to A as a
donation inter vivos. No preference to A was clearly intended
by T. So upon T’s death, leaving an estate of P90,000, add the
P10,000 donation, give P40,000 to A (he already got P10,000
as advance legitime), and give B P50,000
7. Grandchildren who inherit from their grandparents by
representation of their parents must bring to collation all
properties received by their parents from their grandparents (Art
1064)
8. What donations are not collationable:
a. Parents are not obliged to bring to collation in the inheritance
of their own parents or ascendants properties which had been
donated by the latter to their children (Art 1065)
Reasons: the parents were not the ones who received
donations
b. Donation to the spouse of a child should not be brought to
collation (Art 1066):
i. The donation here is not considered an advance on the
child’s legitime because it was not given him, but it must
still be imputed to the free portion of the estate of his
parent.
 ii. But if the donation was given to the spouse jointly, the ½
share pertaining to the child of the donor must be
brought to collation
c. Expenses for support, education, medical attendance, even in
extraordinary illness, apprenticeship, ordinary equipment , or
customary gifts are not subject to collation (Art 1067)
i. Reason: These expenses are not donations but part of
the moral, social, and legal obligations of the parents
towards their children
ii. Education here means only up to high school because
college education is covered by Art 1068
d. Expenses of parents in giving children professional, vocational,
or other career shall not be brought to collation unless the
parents so provide or unless they impair the legitime (like a
Doctor of Philosophy degree obtained by a child abroad at the
expense of the parents)
But when collation is required, the sum that the child
would have spentb had he lived with the parents must be
deduced (Art 1068)
e. Wedding gifts by parents and ascendants consisting of jewelry,
clothing, and outfit are not chargeable to the legitime of the
child or descendant
NOTE: Justice J.B.L. Reyes had believed that cash wedding gifts
are not included in the above Article; while Justice
f. But payment by parents of a child of a child’s debts, election
expenses, fines, and similar expenses are collationable (Art
1069)
9. What should be brought to collation, the thing or its value? (Art
1071)
a. Only the value of the thing at the time of the donation not the
thing itself, shall be brought to collation (Art 1071)
 The thing’s subsequent increase or deterioration and
even its total loss or destruction, be it accidental or culpable,
shall be for the account and risk of the donee
10. How to equalize shares of heirs if there is collation B (Arts.
1073, 1074)
a. Co-heirs shall receive properties of the same nature class, and
quality
b. If donated property is immovable, co-heirs should receive the
cash equivalent or in securities, or sell other properties at
public auction.
c. If donated property is movable, co-heirs should receive the
cash equivalent of other personal property in the estate at its
just price.
11. Reimbursable expenses of the done (Art 1076):
a. Necessary expenses for preservation
b. Improvements to immovable which have increased value of
property
c. Works for mere pleasure of done should be removed without
injuring the estate
12. Problems:
a. T had 2 children X and Y. During his lifetime, T gave child X
P10,000. Later, in his will, T distributed his estate of P90,000 as
follows:
X – P15,000
Y – P25,000
Friend F – P50,000
When T died, X complained, claiming that he was nit given his
legitime. Is X right?
Answer: The P10,000 earlier given by T to X is collationable, so
that T’s estate is actually valued at P10,000. The legitime of X
and Y is ½ of P100,000(P50,000) or P25,000 each.X had already
 received from T P10,000. Add to this the P15,000 that T gave
him in latters’s will, and he actually received his legitime of
P25,000.00
b. X has three children A, B, and C. During his lifetime, X gave A a
donation of P60,000. When X died, he left an P30,000. Divide
X’s estate.
Answer: X’s estate is actually P90,000 (the P60,000 donation to
A and the remainder of his estate of P30,000). The legitime of
A, B, and C is therefor, P45,000. Divide this into 3, and A, B,
and C each gets a legitime of P15,000, and the free portion of
P45,000 (imputing his donation to his legitime and the free
portion). So X’s donation is not officious
c. T has 2 legitimate children A and B. In his will, T gave A a
legacy of P80,000. However, when T died, his estate minus A’s
legacy would only be P20,000. Should A’s legacy be reduced?
Answer: the total estate of T is P100,000 (P80,000 plus
P20,000), so the legitime of A and B is P50,000 or P25,000
each. In order to complete B’s legitime of P25,000, reduce A’s
legacy by P5,000 and add it to the remaining estate of
P20,000. So both A and B would receive a legitime of P25,000
each, while the rest of A’s legacy would be taken from the free
portion

Partition

1. General principles:
a. Where there are two or more heirs, the whole estate of the
decedent is, before partition, owned in common by such heirs,
subject to the payment of the debts of the deceased (Art 1078,
NCC)
b. In partition, the thing itself may be divided, or its value (Art
1079)
c. Partition made by the decedent inter vivos or by will shall be
respected, provided it does not prejudice the legitime of
compulsory heirs (Art 1080)
d. A person may, by an act inter vivos or mortis causa, entrust
the power to make partition to make partition of his estate
after his death to any person (art.1081) called a mandatory,
provided;
i. The mandatory should not be a co-heir.
ii. The partition by the mandatory may be rejected by the
heirs, in which case the court will decide the conflict.
e. While a co-heir can demand the division of the estate
anytime,a right that does not prescribe and also applies to a
co-legatee or co-devisee,the testator can prohibit the division
for a period not exceeding 20 years,which applies even to the
legitime,except-
i. For causes that dissolve a partnership; or
ii. When the court finds compelling reason to order a
partition upon the petition upon the petition of a co-heir
(or co-legatee or devisee) (Art 1083)
f. Causes that dissolve a partnership (Arts 1830-1831)
i. The business becomes unlawful
ii. Insolvency of one partner
iii. Civil interdiction of one partner
iv. Insanity of one partner
v. It has become impractical to carry out the business
vi. Business can be carried out only at a loss
g. If a condition is imposed on some voluntary heirs:
i. Said heirs cannot demand a partition until the condition
is fulfilled
 ii. The co-heirs may-, however, demand sufficient security
until the condition is fulfilled or can never be fulfilled
(Art. 1084)
2. How is partition made (Arts 1085, 1086, 1087):
a. Equality shall be observed as far as possible in nature quality,
and kind
b. If the estate is indivisible or would be impaired if divided (like
a restaurant business or house), it shall be adjudicated to one
heir, who should pay the shares of the other heirs in cash
c. Any heir can demand that the thing be sold at public auction
where strangers can participate
d. Co-heirs should mutually reimburse one another the income
and fruits received, and necessary and useful expenses
e. Damages due to malice or neglect of a co-heir are deductible
3. Legal redemption among co-heirs (Art 1088)
a. Takes place when any heir sells his hereditary rights to a
stranger before partition
b. Requisites
i. There must be at least two or more heirs
ii. One heir must sell his hereditary rights
iii. The sale must be to stranger. If the buyer is a co-heir,
there is no redemption
iv. The sale must be before partition
v. At least one co-heir must demand redemption; but 2
heirs may redeem in proportion to their shares in the
inheritance
NOTE: A person who is not a co-heir cannot demand
redemption, like the wife of a co-heir

vi. The demand must be made within one month from

notice in writing of the sale by the vendor
 NOTE: Even if there was no demand, but if the other co-
heirs knew of the fact of sale, the period of 1 month shall
also run from the moment of knowledge. The only
purpose of the notification is to inform or give
knowledge

vii. Price to be paid by the redemptioner is the same price of

sale

4. After agreement of partition is approved, Art 1088 does not apply

anymore because the parties are no longer co-heirs but are now co-
owners. So, apply Art 1620, which is legal redemption among co-
owners. In such case the requisites are the following
a. If the price of alienation is grossly excessive, the redemptioner
shall pay only a reasonable price
b. If two or more co-owners want to redeem, they may do so in
proportion to their respective shares
c. Right must be exercised within 30 days from notice in writing
by the prospective vendor (i.e. before the sale is actually
made) to his co-owners
d. The deed of sale shall not be recorded by the Register of
Deeds unless accompanied by an affidavit of the vendor that
he had given notice to all his co-owners
5. Delivery of title to co-heirs if property remains undivided (Art
1090)
a. “Title” refers to the document of ownership (like the TCT)
 b. The title must be delivered to the heir having the largest
interest in the property, with authentic copies of the title given
to the other heirs
c. If the co-heirs have the same interest, title should be given to
the oldest heir, again with authentic copies given to the other
heirs.
d. It is the estate which will pay for the titles
6. Effects of partition (Art 1091)
a. After the partition, each heir acquires exclusive ownership of
property or share adjudicated to him
b. Rights of third person are not, however, affected by the
partition
c. If a co-heir had sold his share before the partition is made, the
purchaser acquires the property adjudicated to said heir
7. Reciprocal obligation of warranty among the heirs
a. After the partition, the co-heirs are reciprocally bound to
warrant the title to (warranty against eviction), and the quality
of (warranty against hidden defects) each property
adjudicated
b. The obligation to warrant on the part of each heir is
proportionate to his share
c. If an heir is insolvent, the other co-heir are liable for his part in
the warranty, deducting the share of the one entitled to
indemnity
d. Those who pay the liability of the insolvent heir have the right
of reimbursement should the financial condition of said heir
improves
e. Action to enforce warranty must be brought within 10 years
from the date the right of action accrues (Art 1094)
8. Adjudication of a credit to a co-heir (Art 1095):
 a. If a credit in the estate is assigned to a co-heir, the others are
liable for the insolvency of the debtor only at the time the
partition is made, not for the debtor’s previous insolvency
b. Warranty of the solvency of the debtor is enforceable only
within 5 years following the partition
c. Co-heirs do not warrant bad debts if known to and accepted
by the distributee
d. If a bad debt is subsequently collected by the estate, the
amount shall be shared proportionately by the heirs
9. When obligation of warrant among co-heirs ceases (Art 1096):
a. When the testator himself has made the partition, unless it
appears or it may be presumed that his intention was
otherwise, but legitime must always remain unimpaired;
b. When it was expressly stipulated in the agreement of
partition, unless there was bad faith;
c. When the eviction was due to a cause subsequent to the
partition, or was caused by the fault of the distribute of the
property (like loss of the property by prescription)
10. Rescission or nullity of the partition:
a. Partition may be rescinded or annulled for the same causes as
contracts (Art 1097)
b. Partition, judicial or extrajudicial, may also be rescinded an
account of lesion (Art 1098)
i. Applied when a co-heir receives a thing the value of
which is less by at least ¼ than the share to which he is
entitled;
ii. Value of property is determined at the time of
adjudication
iii. The proper action of the prejudiced heir is for damages.
11. Rescission of partition on account of lesion
a. If partition was made by the testator, action lies only:
 i. When legitime of compulsory heir is prejudiced or
ii. When it appears, or may be reasonably presumed, that
intention of the testator was otherwise (Art 1099)
b. Action on account of lesion prescribes after 4 years from time
partition was made (Art 1100)
c. Heir who is sued may (Art 1011)
i. Indemnify plaintiff for his damages; or
ii. Consent to a new partition
d. If indemnify is chosen, payment may be made:
i. In cash, or
ii. Delivery of a thing of the same kind and quality as that
awarded to the plaintiff (id)
e. If a new partition is made, it shall not affect those who have
not been prejudiced, or those who have not received more
than their just share (Art 1101)
f. An heir who has alienated the whole or a considerable part of
the real property adjudicated to him cannot maintain an action
for partition on the ground of lesion (Art 1102)
But he has a right to be indemnified in cash (id)
g. When one or more objects or securities in the inheritance has
been omitted in the partition (Art 1103):
i. Rescission on the ground of lesion does not lie
ii. But omitted objects or securities shall be distributed
h. Preterition of a compulsory heir in the partition (Art 1105)
i. Partition shall not be rescinded unless bad faith or fraud
on the part of the other heirs provided
ii. The culpable heirs shall share in the damages of
prejudiced compulsory heir proportionately
12. Inclusions of a person not an heir in the partition (Art 1108)
a. Partition is not completely void, but void only with respect to
the part corresponding to the non-heir
b. The non-heir who got a share must give what he had received
to the heir lawfully entitled therto.