Professional Documents
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SUCCESSION
IT BEGINS WITH FAITH & CONVICTION, PERSEVERES WITH HARD WORK & DISCIPLINE, AND
ENDS WITH AN IMPASSIONED TRIUMPH WITHIN, WHEN WE REALIZE THAT WE CAN DO ANYTHING
[SEE EPH. 3:20]
#EMBRACETHEGRIND
CHAPTER 1: GENERAL PROVISIONS 7
DEFINITION OF SUCCESSION 7
DEFINITION OF “DECEDENT” AND “TESTATOR” 9
SCOPE OF THE INHERITANCE 10
WHEN THE RIGHTS OF SUCCESSION ARE VESTED 10
KINDS OF SUCCESSION 12
DEFINITION OF HEIRS, DEVISEES AND LEGATEES 13
DEFINITION OF SUCCESSION
Article 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the
value of the inheritance, of a person are transmitted through his death to another or others either by his will or by
operation of law. (n)
Article 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his
death. (659)
Article 1311. Contracts take effect only between the parties, their assigns and heirs, except in case where the rights and
obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir
is not liable beyond the value of the property he received from the decedent.
‣ It is one of the 7 legally recognized modes of acquiring ownership under Art. 712
1. Occupation
2. Intellectual Creation
1. Law
2. Donation
‣ Mixed Mode (because it’s hard to classify it, prescription is not strictly original, nor derivative)
1. Prescription
‣ Art. 774 talks of “property, rights and obligations to the extent of the value of the inheritance”, Art. 776, on the other hand,
talks of the “inheritance” as including “all the property, rights and obligations of a person which are not extinguished by
his death”
‣ BALANE: “For better clarity and correlation, Art. 774 should be read as: Succession is a mode of acquisition by virtue of
which the inheritance of a person is transmitted through his death to another or others either by his will or by operation of
law”
‣ And the inheritance which is transmitted is defined by Art. 776 to include “all the property, rights and obligations of a
person which are not extinguished by his death”
‣ Thus, only non-personal rights and obligations are transmissible through succession
‣ Procedural law (Rule 88 to 90, Rules of Court) however, provide that it is only after the debts are paid that the residue
of the estate is distributed among the successors. (So, under ROC, the estate pays off the creditors first then what is
left goes to the successors)
‣ Art. 774 expressly provides and the SC confirms that by virtue of succession, the property, rights and obligations,
to the extent of the value of the inheritance of a person, are transmitted by and at the moment of his death,
implying a transfer at that instant of the totality or universality of assets and liabilities.
‣ Several divergent rules on this point which should be clarified when the code is revised (JBL Reyes)
ART. 774 AND 776 SEEMS TO CLASH WITH THE RULES OF COURT; HARMONIZATION
‣ This pertains to the rule on when successional rights vest and its necessary implications and consequences.
‣ Logic from Art. 774/776: You can directly sue the heirs for obligations of the decedent. This is because, since the
successional rights vest on them, at the time of the death of the testator
‣ Rule 90, Rules of Court: You must sue the estate otherwise, the claim will be barred.
‣ Once the decedent dies, the estate passes through a judicial process and the creditors of the decedent must present
their claims in the court, otherwise it will be barred. It is only when the debts and expenses of administration and the
inheritance taxes have been paid, and after the satisfaction of creditors will the remaining residue of the estate or the
net estate pass through the heirs
‣ BALANE: Art. 774 and 776 seems to clash with the Rules of Court.. Because Art. 774 and 776 are based on Spanish and
Roman Law. Rules of Court is based on American Law. These are divergent systems that clash. How do you harmonise
this? Given that as a rule, substantive law should prevail over procedural law? See the next few cases
‣ UNION BANK VS. SANTIBANEZ 452 SCRA 228 [2005]
‣ The filing of a money claim against the decedent’s estate in the probate court is MANDATORY. This requirement
is for the purpose of protecting the estate of the deceased by informing the executor or administrator of the claims
against it, thus enabling him to examine each claim and to determine whether it is a proper one which should be
allowed. The plain and obvious design of the rule is the speedy settlement of the affairs of the deceased and the early
delivery of the property to the distributees, legatees, or heirs. The law strictly requires the prompt presentation and
disposition of the claims against the decedent’s estate in order to settle the affairs of the estate as soon as possible,
pay off its debts and distribute the residue.
‣ BALANE: Only the payment of money debts has been affected by the Rules of Court. The transmission of other
obligations not by nature purely personal follows the rule laid down in Article.
‣ ESTATE OF K.H. HEMADY VS. LUZON SURETY 100 PHIL. 389 (1956)
‣ While in our successional system the responsibility of the heirs for the debts of their decedent cannot exceed the
value of the inheritance they receive from him, the principle remains intact that these heirs succeed not only to the
rights of the deceased but also to his obligations. Articles 774 and 776 expressly so provide, thereby confirming
Article 1311 already quoted.
‣ Under the Civil Code the heirs, by virtue of the rights of succession are subrogated to all the rights and
obligations of the deceased and can not be regarded as third parties with respect to a contract to which the
deceased was a party, touching the estate of the deceased. The principle on which these rest is not affected
by the provisions of the new Code of Civil Procedure, and, in accordance with that principle, the heirs of the
deceased person cannot be held to be “third persons” in relation to any contracts touching the real estate of
their decedent which comes in to their hands by right of inheritance; they take such property subject to all the
obligations resting thereon in the hands of him from whom they derive their rights
‣ The binding effect of contracts upon the heirs of the deceased party is not altered by the provision in our Rules
of Court that money debts of a deceased must be liquidated before the residue is distributed among said heirs
(Rule 89). The reason is that whatever payment is thus made from the estate is ultimately a payment by the
heirs and distributees, since the amount of the paid claim in fact diminishes or reduces the shares that the
heirs would have been entitled to receive.
‣ Under our law, therefore, the general rule is that a party’s contractual rights and obligations are transmissible to the
successors. The rule is a consequence of the progressive “depersonalization” of patrimonial rights and duties that,
has characterized the history of these institutions. From the Roman concept of a relation from person to person, the
obligation has evolved into a relation from patrimony to patrimony, with the persons occupying only a representative
position, barring those rare cases where the obligation Is strictly personal, i.e., is contracted intuitu personae, in
consideration of its performance by a specific person and by no other. The transition is marked by the disappearance
of the imprisonment for debt.
‣ BALANE: This case harmonizes the conflict between Art. 774 and 776 and the Rules of Court as to when the vesting of
the successional right takes place. Court in said there is no conflict between the Civil Code and the Rules of Court. It
said that, ultimately the result will be the same anyway. Although the heirs are not immediately and directly liable,
ultimately they were still held liable since what they got from the estate, was reduced. So, successional rights
still vested on the heirs upon the death of the decedent, but it needs to go through liquidation and distribution
in court and pay off the decedent's creditors before the net estate passes to the heirs. Payments made by the
estate are deemed payments made by the heirs. Although the heirs are not immediately and directly liable,
ultimately they were still held liable since what they got from the estate, was reduced.
‣ ALVAREZ VS. INTERMEDIATE APPELLATE COURT 185 SCRA 8 (1990)
‣ This case reiterates the ruling in Hemady
‣ That heirs did not inherit the property involved herein is of no moment because by legal fiction, the monetary
equivalent thereof devolved into the mass of their father’s hereditary estate, and we have ruled that the hereditary
assets are always liable in their totality for the payment of the debts of the estate. The heirs are liable only to the
extent of the value of their inheritance.
‣ Such as, in a contract of lease, there is an obligation to return the subject-matter of the lease upon expiration of the lease
period. Since the right to the lease of the lessor passes to his heirs, the corresponding obligation to return the property to
the lessee, upon expiration of the lease, also passes to the heirs
Article 775. In this Title, "decedent" is the general term applied to the person whose property is transmitted through
succession, whether or not he left a will. If he left a will, he is also called the testator. (n)
‣ General term of the person who dies, whether or not he left a will: “Decedent”
Article 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his
death. (659)
Article 781. The inheritance of a person includes not only the property and the transmissible rights and obligations
existing at the time of his death, but also those which have accrued thereto since the opening of the succession. (n)
‣ This includes fruits (civil, natural and industrial) which accrue after death.
‣ The inheritance passes at the moment of death (Art. 777) to the heirs by virtue of succession, but the fruits of the
inheritance pass to the heirs by virtue of accession.
‣ The fruits which have accrued since the opening of the succession are really, NOT part of the inheritance, they are
fruits of the inheritance.
‣ BALANE: To say that the fruits are part of the inheritance means that the succession takes place beyond the
moment of death of the decedent, which is wrong. Art. 781 is a new provision which should not have been added.
‣ What are part of the inheritance?
‣ Only his patrimony the decedent owns the time of his death. Only his properties, rights and obligations existing at
the time of his death. Those properties which are not owned by the decedent at the time of his death are no longer
part of his inheritance. This is shown in the Balus Case
‣ In this case, since the testator lost ownership of the subject property during his lifetime, it only follows that at the time
of his death, the disputed parcel of land no longer formed part of his estate to which his heirs may lay claim. Stated
differently, the heirs never inherited the subject lot from their father.
Article 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a)
Art. 777 is the most important provision in Succession and one of the most important provisions in Civil Law!
‣ The ownership to the estate of the decedent is immediately vested to the heirs at the time of the death of the decedent.
‣ Art. 777 is not literally true as the heirs do not immediately receive the successional rights. But it is not pure fiction as the
heirs receive certain “vested” rights.
1. Has a right to succeed by legitime (compulsory succession), by will (testamentary succession), or by law (intestate
succession)
‣ Rights to succession are vested from the moment of death, not upon the filing of petition for testate/ intestate
proceedings, not upon the declaration of heirship or upon settlement of the estate.
‣ The rights to succession are automatic. Tradition or delivery is not needed. Fiction of the law is that from the moment of
the death of the decedent, the right passes to the heirs.
‣ During the lifetime of the predecessor, rights to succession are a mere expectancy. Hence, no contract can be legally
entered into regarding the expected inheritance. When a heir receives his inheritance, he is deemed to have received it at
the point of death. this is so by legal fiction to avoid confusion.
‣ BALANE: It should be emphasized that the operation of Article 777 is at the very moment of the decedent’s death; the
transmission by succession occurs at the precise moment of death and therefore the heir, devisee, or legatee is legally
deemed to have acquired ownership at that moment (even if, particularly in the heir’s case, he will generally not know how
much he will be inheriting and what properties he will ultimately be receiving), and not at the time of declaration of heirs, or
partition, or distribution.
‣ If a right should be declared for the first time in this Code, it shall be effective at once, even though the act or
event which gives rise thereto may have been done or may have occurred under the prior legislation, provided said
new right does not prejudice or impair any vested or acquired right, of the same origin.’
‣ In this case, the right of ownership of the heir (Maria Uson) over the lands in question became vested in 1945 upon
the death of her late husband and this is so because of the imperative provision of the law which commands that
the rights to succession are transmitted from the moment of death. Thus, what should govern is the provision in
the old civil code, since the testator's death took place during that time
‣ The new right recognized by the new Civil Code in favor of the illegitimate children of the deceased cannot,
therefore, be asserted to the impairment of the vested right of Maria Uson over the lands in dispute.
‣ In other words, when the testator died in 1945, the illegitimate children were not heirs yet, since the law in force
during that time was the Old Civil Code which does not give successional rights to illegitimate heirs.
2. OWNERSHIP PASSES TO THE HEIR AT THE VERY MOMENT OF DEATH, WHO THEREFORE, FROM THAT MOMENT, ACQUIRES THE
RIGHT TO DISPOSE OF HIS SHARE
‣ But, if the identity of the heirs is disputed, a declaration of heirship is necessary as seen in the case of Yap In Chay
vs Del Rosario where 2 groups were disputing who the heirs where.
‣ REPUBLIC VS MARCOS
‣ Heirs of the former dictator were impleaded as real parties in interest, in forfeiture cases against the former
dictator.
‣ Prior settlement of the estate is not necessary for the heirs to commence an action pertaining to the decedent. In
this case, it was an action for partition involved.
4. AN IMPLIED CO-OWNERSHIP ARISES BETWEEN THE HEIRS AS TO THE UNDIVIDED PORTION OF THE ESTATE AT THE MOMENT OF
THE DEATH OF THE DECEDENT. AND IF SUCH HEIR/CO-OWNER DIES, THEN HIS INTEREST OF THE ESTATE IS FURTHER
TRANSMITTED TO HIS HEIRS WHO BECOME CO-OWNERS OF THE UNDIVIDED PORTION OF HIS INTEREST.
KINDS OF SUCCESSION
Article 779. Testamentary succession is that which results from the designation of an heir, made in a will executed in the
form prescribed by law. (n)
Article 780. Mixed succession is that effected partly by will and partly by operation of law. (n)
KINDS OF SUCCESSION
‣ Art. 778 enumerates 3 kinds of succession, the first (testamentary) and the third (mixed) are described in the two
succeeding articles.
‣ BALANE: The draft of the Code contained a definition of this kind of succession which seems to have gotten lost in the
legislative mill
‣ “Intestate or legal succession takes place by operation of law in the absence of a valid will.”
‣ Legitimes does not fit in with legal or intestate succession because it operates only in default of a will while legitime
operates whether or not there is a will, in fact it prevails over a will. Also, there are instances when the rules on legitime
(Art. 887) operate, to the exclusion of the rules of intestacy (Art. 960)
‣ BALANE: Legitime should be classified as a separate and distinct kind of succession and can be denominated as
“compulsory succession”
‣ Kinds of Succession (according to order of importance):
2. TESTAMENTARY
‣ Succession by will
3. INTESTATE OR LEGAL
‣ Succession in default of a will
‣ "In default of a will" does not mean the absence of a will. Intestate succession can take place even if there is a will,
such as when the will does not dispose of all the disposable property of the decedent,, in such case, the will
defaulted as to the remaining property not covered by it.
‣ MIXED
‣ Combination of any two or all of the first three
‣ BALANE: Mixed succession is not really a kind of succession, but merely a combination of different kinds of
succession. So there are really, only 3 kinds of succession
‣ Before the family code, there was a fourth kind of succession, "Contractual Succession" between spouses in the form of
a donation propter nuptias to take effect upon the death of either spouse.
Article 782. An heir is a person called to the succession either by the provision of a will or by operation of law.
Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will.
(n)
1. Heir
‣ One who succeeds to the whole or an aliquot (fractional) part of the inheritance
‣ Ex: X gives Y the whole of his estate, or 1/4 of his estate, in either case, Y is considered as an heir
2. Devisee/Legatee
‣ Those who succeed to definite, specific and individual properties
‣ In cases of preterition, the institution of heir is annulled, while the institution of legatees and devisees is effective to the
extent that the legitimes are not impaired.
SECTION 1: WILLS
DEFINITION OF A “WILL”
Article 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain
degree the disposition of his estate, to take effect after his death. (667a)
‣ This erroneously characterisation is sourced from the Spanish Civil Code because orals wills are recognized in that
jurisdiction
2. PERMITTED
‣ Will making is purely statutory, it is not guaranteed by the Constitution. A law may be passed to invalidate will-making.
‣ BALANE: Note that the disposition of property is NOT an essential element of wills. A will is valid even though it does
not contain any testamentary disposition as long as it complies to the essential requirements of wills, although it is a
hollow will.
6. AFTER HIS DEATH
‣ Testamentary succession, like all other kinds of succession in our Code, is mortis causa
‣ VITUG VS CA (1990):
‣ A “survivorship agreement” executed by spouses (between themselves and the bank) pertaining to bank deposits,
which are conjugal during their lifetime but will be exclusive property of the surviving spouse upon the death of
either, is NOT a will. This is because a bequest or devise must be owned by the testator. In this case, it was
conjugal funds. Neither was it a donation since it was to take place upon the death.
‣ Court held that such an agreement is a kind of aleatory contract involving an obligation with a term, the term being
death.
‣ Alternative definition of a will in this case: "A personal, solemn, revocable, and free act by which a capacitated
person disposes of his property, rights and declares or complies with duties to take effect after his death."
CHARACTERISTICS OF WILLS
1. PURELY PERSONAL
‣ See Art. 784, 785, 787
4. REVOCABLE OR AMBULATORY
‣ See Art. 828
‣ This is because the will only takes effect upon the testator’s death and no rights vest yet as long as the testator is
alive, even if the will has already been probated ante-mortem
5. MORTIS CAUSA
‣ Expressed in Art. 783
6. INDIVIDUAL
‣ See Art. 818, joint wills are prohibited in this jurisdiction.
9. UNILATERAL
‣ Implied in Art. 783
‣ this means acceptance is not needed in making a will. A person may be stipulated in a will without his knowledge.
Acceptance comes later, after the decedent's death.
‣ Generally, it should dispose of a property, BUT this is NOT an essential requirement of a valid will.
‣ BALANE: If a will does not dispose of property (such as a document expressing the desire of the decedent to be
cremated) it is a hollow will, it is still a valid will but only as to its form, not substance.
11. STATUTORY
‣ Expressed in Art. 783, will-making is a purely statutory right.
Article 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a third
person, or accomplished through the instrumentality of an agent or attorney. (670a)
Article 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions
which they are to take, when referred to by name, cannot be left to the discretion of a third person. (670a)
Article 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may
leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to
which such property or sums are to be given or applied. (671a)
Article 787. The testator may not make a testamentary disposition in such manner that another person has to determine
whether or not it is to be operative. (n)
NON-DELEGABILITY OF “MAKING” A WILL (ART. 784, 785, 787); EXCEPTIONS (ART. 786)
‣ RULE: THE MAKING OF A WILL IS A STRICTLY PERSONAL ACT; IT CANNOT BE LEFT IN WHOLE OR IN PART TO THE DISCRETION
OF A THIRD PERSON, OR ACCOMPLISHED THROUGH THE INSTRUMENTALITY OF AN AGENT OR ATTORNEY.
‣ Art. 784 gives the will its purely personal character, as reinforced by Art. 785 and 787
‣ It is the exercise of the “disposing power” that cannot be delegated. Purely mechanical and clerical aspects, such as
typing, do not fall within the prohibition
‣ The following constitute the essence of will-making or the exercise of disposing power, and thus, are non-delegable:
1. The designation of heirs, devisees, or legatees
2. The duration or efficacy of such designation (including such things as conditions, terms, substitutions)
‣ The testator may not delegate to a third person the determination on whether or not disposition is operative. This is
because it violates the purely personal character of the will, in effect the third person will exercise the disposition
power.
‣ This should be interpreted rationally, it should not be interpreted as to make it clash with the principle (Art. 1041-1057)
that the heir is free to accept or reject the testamentary disposition
‣ It is only the manner of distribution or property and the designation of who are to receive it within the class or
cause which are delegable. Thus the third person can choose WHO to give (as long as it corresponds to the class
or cause) and HOW MUCH each of them should receive (as long this corresponds to how much the testator
chooses to give)
‣ BALANE: The exceptions here are part of the essence of the will-making power of the testator, they are allowed to
be delegated only because the law says so.
‣ What if the testator specified the recipients (by specific designation) but left the third person the determination of
the sharing (proportion of how much each receives), is this allowed?
‣ No, under Art. 786, the recipients must not be specifically designated by the testator. Art. 786 only applies where the
testator merely specifies the class or cause but not the specific recipients.
‣ This is the case even though this actually involves a lesser discretion for the third person than the instances
allowed by Art. 786. Since in Art. 786, the testator is allowed to delegate WHO to give and HOW MUCH each
person should receive. In the mentioned scenario, the testator chooses WHO to give but delegates merely HOW
MUCH each of them shall receive.
Article 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which
the disposition is to be operative shall be preferred. (n)
Article 789. When there is an imperfect description, or when no person or property exactly answers the description,
mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence,
excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will,
as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking
into consideration the circumstances under which it was made, excluding such oral declarations. (n)
Article 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use
them in another sense can be gathered, and that other can be ascertained.
Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention,
or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such
technical sense. (675a)
Article 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather
than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be
preferred which will prevent intestacy. (n)
Article 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other
dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid
disposition had not been made. (n)
Article 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the
time of making the will, should it expressly appear by the will that such was his intention. (n)
Article 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property
disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n)
Article 929. If the testator, heir, or legatee owns only a part of, or an interest in the thing bequeathed, the legacy or devise
shall be understood limited to such part or interest, unless the testator expressly declares that he gives the thing in its
entirety. (864a)
Article 931. If the testator orders that a thing belonging to another be acquired in order that it be given to a legatee or
devisee, the heir upon whom the obligation is imposed or the estate must acquire it and give the same to the legatee or
devisee; but if the owner of the thing refuses to alienate the same, or demands an excessive price therefor, the heir or the
estate shall only be obliged to give the just value of the thing. (861a)
BALANE: The principles in construction and interpretation of wills are based on the principle that the intent of the testator is
supreme.
‣ Underlying principle is that Testacy is preferred to Intestacy. This is because the former is the express will of the
decedent, whereas the latter is only his implied will.
‣ Also, the principle of “That the thing may rather be effective than be without effect.
‣ Similar rule in Contractual Interpretation, Article 1373: “If some stipulation of any contract should admit of several
meanings, it shall be understood as bearing that import which is most adequate to render it effectual”
‣ When there is doubt as to the interpretation of provisions of a will, then that interpretation which makes it valid should
be preferred, not the interpretation which will make it void.
‣ BALANE: Give effect, as much as possible, to the testator's intention, don't be too technical.
2. When there is an imperfect description, or when no person or property exactly answers the description, mistakes
and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence,
excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face
of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the
words of the will, taking into consideration the circumstances under which it was made, excluding such oral
declarations. (Art. 789)
‣ When there is an imperfect description, or when no person or property exactly answers the description.
i. Latent as to person: “I institute to 1/4 of my estate my first cousin Jose” (but the testator has several first
cousns named Jose)
ii. Latent as to property: “I devise to my cousin Pacifico my fishpond in Roxas City” (but the testator has more
than one fishpond on Roxas City)
b. Patent or Extrinsic Ambiguity (obvious on the face of the will)
b. The ambiguity as far as possible, be cleared up and resolved, in order to give effect to the testamentary
disposition. Remember that the testator's intention is supreme in testamentary succession.
c. Resolve the ambiguity by any evidence admissible and relevant, EXCLUDING oral declarations of the
testator as to his intention (Dead man cannot refute a tale)
‣ Note that both extrinsic and intrinsic evidence may be presented, as well as written declarations of the
testator.
3. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them
in another sense can be gathered, and that other can be ascertained. Technical words in a will are to be taken in
their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears
that the will was drawn solely by the testator, and that he was unacquainted with such technical sense (Art. 790)
‣ Sec. 10: “Interpretation of a writing according to its legal meaning.- The language of a writing is to be interpreted
according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise.”
‣ Sec. 14: “ Peculiar signification of terms.- The terms of a writing are presumed to have been used in their
primary and general application, but evidence is admissible to show that they have a local, technical, or
otherwise peculiar signification, and were so used and understood in the particular instance, in which case the
agreement must be construed accordingly.”
‣ Similar rule in Contractual Interpretation, Article 1370: “If the terms of a contract are clear and leave no doubt upon
the intention of the contracting parties, the literal meaning of its stipulations shall control.”
‣ Sec. 11: “Instrument construed so as to give effect to all provisions.- In the construction of an instrument where
there are several provisions or particulars, such as constructions is, if possible, to be adopted as will give effect
to all”
‣ Article 1373: “If some stipulation of any contract should admit of several meanings, it shall be understood as
bearing that import which is most adequate to render it effectual.”
‣ Article 1374: “The various stipulations of a contract shall be interpreted together, attributing to the doubtful ones
that sense which may result from all of them taken jointly.”
5. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other
dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first
invalid disposition had not been made. (Art. 792)
‣ This provision makes applicable to wills the sever ability or separability principle in statutory construction frequently
expressly provided in a separability clause
6. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time
of making the will, should it expressly appear by the will that such was his intention. (Art. 793)
‣ This provision creates problems which would not have existed had it not been so nonchalantly incorporated in the
Code
‣ The problems spring from the fact that this article makes the will speak as of the time it is made, rather than at the
time of the decedent’s death (which is more logical because that is when the will takes effect Art. 777)
‣ Example: X executes a will in 1980 with a provision “I leave to A 1/4 of my estate.” When he made the will, his estate
was worth P100,000. At the time of his death in 1990, X’s estate was worth P500,000. Per Art. 793, A is entitled only
to P25,000
‣ Art. 793 therefore departs from the codal philosophy of Art. 774 and 776 and constitutes an exception to the
concept of succession as linked to death and rendered legally effective by death.
‣ BALANE: This article should be reformed as to read “Property acquired after the making of a will passes thereby unless
the contrary clearly appears from the words or the context of the will” Testator is presumed to know that the will is to
operate only when he dies, therefore the provisions of a will is supposed to speak at the time of the death of the
testator. The reverse of Art. 793 should be true in that the will should pertain to the property as of the time of death.
‣ Some authorities say that this provision on after-acquired properties only applies to legatees and devisees and NOT to
heirs (as this makes more sense), but Prof. Balane didn’t say anything regarding that.
7. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property
disposed of, unless it clearly appears from the will that he intended to convey a less interest. (Art. 794)
‣ In a legacy or devise, the testator gives exactly the interest he has in the thing (Art. 794)
‣ EXCEPTION: He can give less interest (Art. 794) or a greater interest (Art. 929) than he has, if he indicates such
fact in the will
‣ How will he give more interest than he actually has under Art. 931? The estate will need to purchase the interest
the testator wishes to give but doesn't own yet when he dies. If the owners of such interest doesn't want to sell,
the heir gets the monetary equivalent instead.
‣ In the latter case, if the person owning the interest to be acquired does not wish to part with it, the solution in
Art. 931 can be applied, in that the legatee or devisee shall be entitled only to the just value of the interest
that should have been acquired.
Article 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made. (n)
‣ EXCEPTION TO EXCEPTION: When the testator dies before such subsequent law’s effectivity (Art. 777)
‣ The law in force when the will was executed (Art. ‣ The law as of the time of death (Art. 777,
795)
2263)
Governing
Law as to the ‣ BALANE: You don’t want the testator to be a
Time prophet and predict laws
For Foreigners
‣ Five choices are available to the testator (Art. ‣ Philippine law (Art. 16, par. 2)
815-817)
For Foreigners
Law as to the
2. Law of Domicile
5. Philippine Law
Article 796. All persons who are not expressly prohibited by law may make a will. (662)
Article 797. Persons of either sex under eighteen years of age cannot make a will. (n)
Article 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. (n)
Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or
that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed
of, the proper objects of his bounty, and the character of the testamentary act. (n)
Article 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who
opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be
insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. (n)
Article 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the
supervening of capacity. (n)
TESTAMENTARY CAPACITY
‣ This is the legal capacity to make a will
‣ Testamentary capacity is considered an extrinsic/formal requirement for the validity of a will (according to Art. 839)
‣ Note that the provisions says “under eighteen years of age cannot make a will”, this doesn’t necessarily mean he is a
minor because prior to 1989 (where a special law was passed to lower age of majority), the age of majority was 21,
thus, before such date, some minors (aged 18-21) can execute a will
2. PERSONS WHO ARE NOT OF SOUND MIND OR WHO ARE MENTALLY INCAPACITATED, AT THE TIME OF THE EXECUTION OF THE
WILL
‣ Art. 799 defines what a sound mind is
‣ To be of sound mind, it is NOT required or necessary that the testator should have:
a. Full possession of all his reasoning faculties
b. A mind that is wholly unbroken, unimpaired, or unshattered by disease, injury or other cause
‣ This is because there's no such person who fits these descriptions. There is no such person who has full
possession of all his reasoning faculties nor a person who has a mind which is wholly unbroken,
unimpaired, or unshattered. Every person has gone through something.
‣ To be of sound mind, it is sufficient that the testator has the ability to know the:
a. NATURE OF THE ESTATE TO BE DISPOSED OF
‣ The testator should have a fairly accurate knowledge of what he owns, but what is accurate should depend
on the circumstances. if the person is rich, then the latitude of what is fairly accurate is broader than a
person who is poorer.
‣ The testator must only have a reasonably accurate knowledge of his estate, an estimation which is fairly
accurate. Nobody knows how much money he exactly has.
‣ This doesn't mean he should give the properties to his relatives, but he must know who his immediate
relatives are so that he can make an intelligent decision
‣ He must know that he is disposing of his property gratuitously (and not for consideration) and it will take
effect upon his death
‣ Note: The standards of soundness of mind to execute a will is different in legal contemplation and medical
contemplation. What is important is that he meets the standards in Art. 799. He must be capable of
perceiving the three things in Art. 799 which renders him sufficient to meet the standard of a sound mind,
regardless of whether he is medically ill or not.
‣ Basically, the testator, in executing a will, should know and has an understanding of what he is about to do,
how he is disposing his property, and to whom he is disposing his property
‣ The definition of soundness of mind for purposes of testamentary succession is different from other purposes
‣ Time of determining mental capacity is at the time of execution of the will, no other temporal criterion is to
be applied
‣ Note that Art. 801 provides that supervening incapacity does not invalidate an effective will, nor is the will of an
incapable validated by the supervening of capacity. So no destructive or curative effect in the respective cases.
‣ EXCEPTION: In these cases, there is NO presumption of soundness of mind, but rather, a rebuttable presumption of
insanity:
1. When the testator, one month or less, before the execution of the will was publicly known to be insane (Article
800)
2. When the testator executed the will after being placed under guardianship or ordered committed, in either
case, for insanity (under Rules 93 and 101, respectively, of the Rules of Court), and before said order has been
lifted.
‣ This supports the principle that the qualification of soundness of mind is to be determined at the time the will was
made and executed.
‣ If the person was on sound mind when he made the will, then the will is valid. Supervening incapacity does not render
it invalid. The reverse is also true, if the person was of unsound mind when he made the will, the will is invalid, this
invalidity is not cured upon the supervening capacity of the testator.
Article 802. A married woman may make a will without the consent of her husband, and without the authority of the court.
(n)
Article 803. A married woman may dispose by will of all her separate property as well as her share of the conjugal
partnership or absolute community property. (n)
FAMILY CODE
Article 97. Either spouse may dispose by will of his or her interest in the community property
‣ BALANE: Sexist provisions which is explained by historical context. It contains an erroneous and unintended suggestion
that a married man does not have the same privilege
‣ Art. 803 has been superseded by Art. 97 of the Family Code. It provides that either spouse may dispose by will of his or
her interest in the community property.
‣ Note that during the subsistence of the marriage (of the absolute community or conjugal partnership) the community/
conjugal properties cannot be disposed of a single spouse without consent of the other, except token donations and
other exceptions, BUT, the spouses may dispose of their share by will since the absolute community property or conjugal
partnership is dissolved upon the death of either spouse (Art. 99 and 126 of Family Code)
The next provisions which will be taken up will pertain to the formal requirements or extrinsic validity of wills. These
requirements are in Articles 804-808; 810-814; 818 and 819. To summarize:
‣ Formal requirements of Wills in General (Art. 804, 818-819):
1. Must be in writing
2. Attested and subscribed by at least three credible witnesses in the presence of the testator and of one another
3. The testator, or his agent, must sign every page, except the last, on the left margin in the presence of the witnesses
4. The witnesses must sign every page, except the last, on the left margin in the presence of the testator and of one
another
5. All pages numbered correlatively in letters on the upper part of each page
b. The fact that the testator or his agent under his express direction signed the will and every page thereof, in the
presence of the witnesses
c. The fact that the witnesses witnessed and signed the will and every page thereof in the presence of the testator
and one another,
8. For testator who is a literate deaf-mute, he must read the will personally
9. For testator who is an illiterate deaf-mute, he must designate two persons to read the will and communicate to him,
in some practicable manner, its contents.
10. For blind testators, will must be read to him twice, once by one of the subscribing witnesses, and another by the
notary
4. Necessity of witnesses who knows the handwriting and signature of the testator or expert testimony
6. If each additional disposition is signed but undated, the last disposition must be signed and dated.
7. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the
same by his full signature.
Article 804. Every will must be in writing and executed in a language or dialect known to the testator. (n)
BALANE: Art. 804 lays down the common requirements that apply to both kinds of wills. These requirements are
MANDATORY, failure to comply with these two requirements renders the will VOID.
KINDS OF WILLS
1. Attested/Notarial Wills (Governed by special requirements in Art. 805-808)
‣ BALANE: Generally there is no presumption, because it is dangerous, only in exceptional cases such as in
Abangan, which was not really a presumption but rather compliance was proved by the facts in that case
‣ SUROZA VS. HONRADO 110 SCRA 388 (1981)
‣ In this case, the trial court judge, on perusing the will and noting that it was written in English and was
thumbmarked by an obviously illiterate testatator, could have readily perceived that the will is void.
‣ In the opening paragraph of the will, it was stated that English was a language ‘understood and known’ to the
testatrix. But in its concluding paragraph, it was stated that the will was read to the testator and was translated
into Filipino language. That could only mean that the will was written in a language not known to the illiterate
testatator and, therefore, it is void because of the mandatory provision of Article 804 of the Civil Code that every
will must be executed in a language or dialect known to the testator. Thus, a will written in English, which was not
known to the testator, is void.
‣ BALANE: Properly speaking, compliance with the language requirement is not then presumed but proved by these
attendant circumstances.
Article 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign,
as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other person to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n)
Article 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.(n)
2. Attested and subscribed by at least three credible witnesses in the presence of the testator and of one another
3. The testator, or his agent, must sign every page, except the last, on the left margin in the presence of the witnesses
4. The witnesses must sign every page, except the last, on the left margin in the presence of the testator and of one
another
5. All pages numbered correlatively in letters on the upper part of each page
b. The fact that the testator or his agent under his express direction signed the will and every page thereof, in the
presence of the witnesses
c. The fact that the witnesses witnessed and signed the will and every page thereof in the presence of the testator and
one another,
2. The attestation clause is not required to state that the agent signed in the testator’s presence
‣ This is a circumstance mandated by the first and second paragraphs of the article.
DATE REQUIREMENT
‣ There is NO requirement that an attested will should be dated, unlike a holographic will which must be.
‣ Consequently, a variance between the indicated dates of execution and acknowledgement does not in itself invalidate
the will
LANGUAGE REQUIREMENT
‣ Does the testator need to know the language of the attestation clause?
‣ No, only the testator needs to know the language of the will for its validity. The only language requirement is in Art.
804 in that the will must be in a language known to the testator.
‣ How about the attestation clause, do the witnesses need to know its language?
a. ACT OF SUBSCRIBING
i. By the Testator
‣ What does “subscribe” mean?
‣ The article uses two words to refer to this requirement which are used interchangeably, “subscribe” and
“sign”. By definition, they are not synonymous. To “sign” is a broader term as it simply means placing a
distinguishing mark; while to “subscribe” means “to write under”, this necessarily denotes writing.
‣ Note that this only applies to the testator, not the witnesses. It is said that the witnesses are required to
sign by writing
‣ BALANE: On the authority of these rulings, therefore, the testator’s thumbprint is always a valid and
sufficient signature for the purpose of complying with the requirement of the article. While in most of these
cases, the testator was suffering from some infirmity which made the writing of the testator’s name difficult
or impossible, there seems to be no basis for limiting the validity of thumbprints only to cases of illness or
infirmity.
‣ GARCIA VS. LACUESTA 90 PHIL. 489 (1951)
‣ It is not here pretended that the cross appearing on the will is the usual signature of the testator or even
one of the ways by which he signed his name. The Court is not prepared to liken the mere sign of a
cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the
trustworthiness of a thumb mark (because it is easy to fake).
‣ BALANE: A sign of the cross, therefore, placed by the testator does not comply with the statutory
requirement of signature, UNLESS it is the testator’s usual manner of signature or one of his usual styles
of signing
ii. By the Agent
‣ Requisites for signing by the agent:
‣ Thus, the testator should sign at the physical end, or at least, the logical end, otherwise the will is VOID
‣ BALANE: Meaning of “in the presence”, as long as the witness has the ability to see each other (the testator
and the other witnesses) by merely casting his eyes, or pivoting his body in the proper direction, then the
requirement is fulfilled. It is sufficient that the witness was in a position to see, if he wanted to. There must be
no barrier to his line of sight
‣ NERA VS. RIMANDO 18 PHIL. 451 (1911)
‣ The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually
saw each other sign, but whether they might have seen each other sign, had they chosen to do so, considering
their mental and physical condition and position with relation to each other at the moment of inscription of
each signature
‣ But it is especially to be noted that the position of the parties with relation to each other at the moment of the
subscription of each signature, must be such that they may see each other sign if they choose to do so.
This, of course, does not mean that the testator and the subscribing witnesses may be held to have executed
the instrument in the presence of each other if it appears that they would not have been able to see each other
sign at that moment, without changing their relative positions or existing conditions.
2. ATTESTED AND SUBSCRIBED BY WITNESSES- ATTESTED AND SUBSCRIBED BY AT LEAST THREE CREDIBLE WITNESSES IN
THE PRESENCE OF THE TESTATOR AND OF ONE ANOTHER
ii. Subscribing: The act of signing their names in the proper places of the will
‣ BALANE: The implication in Taboada is that, literally and ideally, the witnesses should sign at the end of the
will, though failure in this regard may be overlooked.
‣ May the witness, like the testator, affix his thumbmark, in lieu of writing his name?
‣ “Credible”?
‣ Qualification of the witnesses will be taken up later
‣ Nera ruling applies also in this case, in that, the ability to see is sufficient
3. SIGNATURE ON EVERY PAGE BY TESTATOR OR AGENT- THE TESTATOR, OR HIS AGENT, MUST SIGN EVERY PAGE,
EXCEPT THE LAST, ON THE LEFT MARGIN IN THE PRESENCE OF THE WITNESSES
‣ The signing may be done by the testator himself, or by the agent (through writing his name under his express
direction)
‣ What if the signature was not placed on the left margin? Still valid for substantial compliance. This may be viewed
merely as a directory requirement
‣ If the entire document consists of only two sheets, the first containing the will and the second, the attestation
clause, there need not be any marginal signatures at all (Abangan v. Abangan 1919)
4. SIGNATURE ON EVERY PAGE BY WITNESS- THE WITNESSES MUST SIGN EVERY PAGE, EXCEPT THE LAST, ON THE LEFT
MARGIN IN THE PRESENCE OF THE TESTATOR AND OF ONE ANOTHER
‣ If they didn’t sign the end, at least they should sign at the left margin
‣ The order of signing, insofar as all the signing requirements of this article are concerned, is immaterial,
provided everything is done in a single transaction. However, if the affixation of the signatures is done in
several transactions, then it is required for validity that the testator affix his signature ahead of the witnesses.
‣ BALANE: This ruling holding cannot, and should not, be taken as a departure from the rule that the will should
be signed by the witnesses on every page.
b. SIGNING IN THE PRESENCE OF THE TESTATOR AND OF ONE ANOTHER
5. NUMBERED PAGES- ALL PAGES NUMBERED CORRELATIVELY IN LETTERS ON THE UPPER PART OF EACH PAGE
a. ALL PAGES SHOULD BE NUMBERED
‣ By “letters” means you need to spell out the numbers, this is more thorough, similar to a check
6. ATTESTATION CLAUSE
a. ATTESTATION CLAUSE SHOULD STATE:
i. The number of pages of the will,
ii. The fact that the testator or his agent under his express direction signed the will and every page thereof, in the
presence of the witnesses
iii. The fact that the witnesses witnessed and signed the will and every page thereof in the presence of the
testator and one another
‣ Signature must be at the bottom of the attestation clause, it CANNOT be at the left margin of the page
‣ Court said that the attestation clause is “a memorandum of the facts attending the execution of the will”
required by law to be made by the attesting witnesses, and it must necessarily bear their signatures.
‣ An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission
of their signatures at the bottom thereof negatives their participation. If an attestation clause not
signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such
clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.
‣ Attestation is usually found at the bottom or after the end of the will
‣ To acknowledge before means “to avow, to own as genuine, to assent, to admit; and ‘before’ means in front or
preceding in space or ahead of.”
‣ Should the acknowledgment before a notary, take place, at the same time as the signing of the will by the
testator and his witnesses?
‣ No, Art. 805 does not require it, it can take place at another time
‣ Thus, the certification of acknowledgment need not be signed by the notary in the presence of the
testator and the witnesses. Also, Article 806 does not require that the testator and the witnesses
must acknowledge on the same day that it was executed.
‣ BALANE: Note that it is the “act” of acknowledgement which is required, not the signature of the notary. A
logical inference from this is also that the article does NOT require that the testator and the witnesses must
acknowledge in one another’s presence. But, if the acknowledgment is done by the testator and the witnesses
separately, all of them must retain their respective capacities until the last one has acknowledged. Note that the
notary public need NOT be present when the will is subscribed, signed, and attested to by the testator and his
witnesses.
‣ Should the notary be present when the will was executed?
‣ Can the notary be one of the attesting witnesses?
‣ No, he cannot avow, assent, or admit his having signed the will in front of himself.
‣ Consequently, if the third witness were the notary public himself, he would have to avow, assent, or admit his
having signed the will in front of himself. This cannot be done because he cannot split his personality into two
so that one will appear before the other to acknowledge his participation in the making of the will. To permit
such a situation to obtain would be sanctioning a sheer absurdity.
‣ To allow the notary public to act as third witness, or one of the attesting and acknowledging witnesses,
would have the effect of having only two attesting witnesses to the will which would be in contravention to
the provisions of Article 805 requiring at least three credible witnesses to act as such and of Article 806 which
requires that the testator and the required number of witnesses must appear before the notary public to
acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the
notary public for that purpose. In the circumstances, the law would not be duly observed.
‣ Thus, if the notary is one of the witnesses also, he cannot be counted as one of the witnesses.
Person cannot be a notary and a witness at the same time, he cannot avow, assent, or admit his
having signed the will in front of himself.
‣ Also, note that the notary is an officer of the court, he should be an objective person. If you make him a
witness, he gains an interest in the validity of the will.
‣ Can a will be acknowledged before a notary in a place outside his jurisdiction?
‣ No, the notary must act within the jurisdiction of his notarial commission
‣ No. One of the formalities required by law in connection with the execution of a notarial will is that it must be
acknowledged before a notary public by the testator and the witnesses. This formal requirement is one of the
indispensable requisites for the validity of a will. In other words, a notarial will that is not acknowledged before
a notary public by the testator and the instrumental witnesses is void and cannot be accepted for probate.
‣ The Notarial law provides: SECTION 240.Territorial jurisdiction. — The jurisdiction of a notary public in a
province shall be co-extensive with the province. The jurisdiction of a notary public in the City of Manila shall
be co-extensive with said city. No notary shall possess authority to do any notarial act beyond the limits of
his jurisdiction.
‣ In this case, the compulsory language of Article 806 of the Civil Code was not complied with and the
interdiction of Article 240 of the Notarial Law was breached. Ineluctably, the acts of the testatator, her
witnesses and the notary were all completely void.
Article 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall
designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (n)
Article 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and
again, by the notary public before whom the will is acknowledged. (n)
b. If unable to read (illiterate): He must designate two persons to read the will and communicate to him, in some
practicable manner, its contents.
2. FOR BLIND TESTATORS
‣ Will will be read to him twice, once by one of the subscribing witnesses, and another by the notary
‣ Art. 808 does not only cover actually blind persons, but also the following (they are in contemplation of the law, blind):
b. Illiterate persons
‣ Balane: The suggestion is that an illiterate testator, because of his incapacity to read the will is like a blind
testator. Consequently, Article 808 should apply.
‣ The rationale behind Art. 808 (the requirement of reading the will to the testator if he is blind or incapable of
reading the will himself as when he is illiterate), is to make the provisions thereof known to him, so that he may
be able to object if they are not in accordance with his wishes. That the aim of the law is to insure that the
dispositions of the will are properly communicated to and understood by the handicapped testator, thus making
them truly reflective of his desire, is evidenced by the requirement that the will should be read to the latter, not only
once, but twice, by two different persons, and that the witnesses have to act within the range of his (the testator's)
other senses.
‣ Requirements of Art. 808 is mandatory, failure to prove that fulfilment of such, renders the will VOID.
‣ BALANE: It should be noted that both the sense of Article 808 and the implication in Garcia are that the burden of
proof is upon the proponent of the will that the special requirement of the article was complied with. At the same
‣ Court said that he is covered under Art. 808, since it does not only apply to completely blind persons, but also, to
those incapable of reading their wills.
‣ Also, requirements of Art. 808 were substantially complied with. It said that in a number of occasions, substantial
compliance is acceptable where the purpose of the law has been satisfied, the reason being that the solemnities
surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery but are
never intended to be so rigid and inflexible as to destroy the testamentary privilege.
‣ In this case, the spirit behind the law was served though the letter was not. Although there should be strict
compliance with the substantial requirements of the law in order to insure the authenticity of the will, the formal
imperfections should be brushed aside when they do not affect its purpose and which, when taken into
account, may only defeat the testator’s will. IAMKOBA
‣ Purpose of Art. 808 is to make known to the incapacitated testator the contents of the draft of his will, this had
been accomplished in this case; substantial compliance suffices where the purpose has been served.
‣ BALANE: Alvarado does NOT reverse or abandon the Garcia ruling, it liberalizes it. Garcia says that Art. 808 is
mandatory, Alvarado says that substantial compliance (if it attains the purpose of the law, which is the protect the
blind testator) is sufficient.
Article 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that
the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. (n)
BALANE: This is a liberalization rule, an attempt to liberalize Articles 804 to 808. Substantial compliance with Articles 805 and
806 will validate the will despite some defects in the attestation clause.
‣ EXCEPT: If there is bad faith, forgery, or fraud, or undue and improper pressure and influence
‣ BALANE: If the defect is something that can be remedied by the visual examination of the will itself, liberalize. If not,
then you have to be strict.
‣ Justice JBL Reyes suggests a possible re- wording:
‣ “In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall NOT render the will invalid if such
‣ Examples:
1. A failure by the attestation clause to state that the testator signed every page can be liberally construed, since
that fact can be checked by a visual examination.
2. A failure by the attestation clause to state that the witnesses signed in one another’s presence should be
considered a more serious, indeed a fatal, flaw, since the attestation clause is the only textual guarantee of
compliance.
‣ CANEDA V. COURT OF APPEALS 222 SCRA 781 (1993):
‣ In this case, the opponents to the probate were claiming that the attestation clause was fatally defective in that while it
recites that the testator indeed signed the will and all its pages in the presence of the three attesting witnesses and
states as well the number of pages that were used, the same does NOT expressly state therein the circumstance that
said witnesses subscribed their respective signatures to the will in the presence of the testator and of each other. The
will, however, complied with the other requirements of Art. 805 and 806.
‣ Regarding the reasons of the law for requiring the formalities to be followed in the execution of wills, the Court quoted
the Code Commission in saying that “the underlying and fundamental objectives permeating the provisions on
the law on wills consists in the liberalisation of the manner of their execution with the end in view of giving the
testator more freedom in expressing his last wishes, but with sufficient safeguards and restrictions to prevent
the commission of fraud and the exercise of undue and improper pressure and influence upon the testator”
‣ Court said that in the absence of that statement required by law is a fatal defect or imperfection which must
necessarily result in the disallowance of the will. It cannot fall or be allowed under the substantial compliance rule
since it cannot be verified in the will itself if the will was really signed by the witnesses in the presence of the testator
and of each other. In this case, proof of the acts required to have been performed by the attesting witnesses can be
supplied only by extrinsic evidence thereof.
‣ JBL Reyes on Art. 809: The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in
each and every page; whether the subscribing witnesses are three or the will was notarised. All these facts that the
will itself can reveal, and the defects or even omissions concerning them in the attestation clause can be safely
disregarded. BUT, the total number of pages, and whether all persons required to sign did so in the presence
of each other must substantially appear in the attestation clause, being the only check against perjury in
the probate proceedings.
‣ Under Art. 809, the defects or imperfections would NOT render a will invalid should it be proved that the will as
really executed and attested in compliance with Art. 805. In this regard, however, the manner of proving the due
execution and attestation has been held to be limited to merely an examination of the will itself, without
resorting to evidence aliunde, whether oral or written.
‣ Art. 809 presupposes that the defects in the attestation clause can be cured or supplied y the text of the will or a
consideration of matters apparent therefrom which would provide the data not expressed in the attestation clause
or from which it may necessarily be gleaned or clearly inferred that the facts not sated in the omitted textual
requirements were actually complied with in the execution of the will. In other words, the defects must be
remedied by intrinsic evidence supplied by the will itself.
‣ Omission which can be supplied by an examination of the will itself, without need of resorting to extrinsic
evidence, will NOT be fatal and, thus, would not obstruct the allowance of the probate of such will.
However, those omissions which cannot be supplied except by evidence aliunde would result in the
invalidation of the attestation clause, and ultimately, of the will itself.
‣ Since the object of the solemnities surrounding the execution of the will is to close the door against bad faith
and fraud, to avoid substitution of the wills and testaments and to guarantee their truth and authenticity.
Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends.
Nonetheless, it was also emphasized that one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will, hence when an interpretation already given assures
such ends, any other interpretation whatsoever that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator’s last will, must be disregarded.
‣ AZUELA VS CA 487 SCRA 119 (2006)
‣ The will in this case contains a lot of defects (as enumerated below). Court explained why each and every defect is
fatal to the validity of the will.
1. THE THREE WITNESSES TO THE WILL AFFIXED THEIR SIGNATURES ON THE LEFT-HAND MARGIN OF BOTH PAGES OF THE
WILL, BUT NOT AT THE BOTTOM OF THE ATTESTATION CLAUSE.
‣ Article 805 particularly segregates the requirement that the instrumental witnesses sign each page of the will,
from the requisite that the will be "attested and subscribed by the instrumental witnesses. The respective
intents behind these two classes of signature are distinct from each other. The signatures on the left-hand
corner of every page signify, among others, that the witnesses are aware that the page they are signing forms
part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are
referring to the statements contained in the attestation clause itself. Indeed, the attestation clause is
separate and apart from the disposition of the will. An unsigned attestation clause results in an
unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the
unsigned attestation clause, such signatures cannot demonstrate these witnesses’ undertakings in the clause,
since the signatures that do appear on the page were directed towards a wholly different avowal.
‣ The Court may be more charitably disposed had the witnesses in this case signed the attestation clause
itself, but not the left-hand margin of the page containing such clause. Without diminishing the value of the
instrumental witnesses’ signatures on each and every page, the fact must be noted that it is the attestation
clause which contains the utterances reduced into writing of the testamentary witnesses themselves. It is the
witnesses, and not the testator, who are required under Article 805 to state the number of pages used upon
which the will is written; the fact that the testator had signed the will and every page thereof; and that they
witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. The
only proof in the will that the witnesses have stated these elemental facts would be their signatures on the
attestation clause.
‣ Thus, if the attestation was signed by the witnesses, but they didn’t sign the left margin of the page
containing the attestation, this may be allowed under the substantial compliance rule
2. WILL WAS NOT NUMBERED CORRELATIVELY IN LETTERS PLACED ON UPPER PART OF EACH PAGE
‣ There was an incomplete attempt to comply with this requisite, a space having been allotted for the insertion of
the number of pages in the attestation clause. Yet the blank was never filled in
3. THE ATTESTATION DID NOT STATE THE NUMBER OF PAGES ON WHICH THE WILL WAS WRITTEN
‣ Court held that: a will whose attestation clause does not contain the number of pages on which the will is
written is fatally defective. The failure of the attestation clause to state the number of pages on which the will
was written remains a fatal flaw, despite Article 809.
‣ The purpose of the law in requiring the clause to state the number of pages on which the will is written is to
safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or
decrease in the pages.
‣ The failure to state the number of pages equates with the absence of an averment on the part of the
instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly
just witnessed and subscribed to.
‣ Following Caneda, there is substantial compliance with this requirement if the will states elsewhere in it how
many pages it is comprised of. In this case, however, there could have been no substantial compliance with the
requirements under Article 805 since there is no statement in the attestation clause or anywhere in the will itself
as to the number of pages which comprise the will.
4. THE WILL WHICH DOES NOT CONTAIN AN ACKNOWLEDGMENT, BUT A MERE JURAT
‣ In lieu of an acknowledgment, the notary public, wrote "Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10
(sic), 1981 dito sa Lungsod ng Maynila."
‣ Court held that: a notarial will that is not acknowledged before a notary public by the testator and the
witnesses is fatally defective, even if it is subscribed and sworn to before a notary public.
‣ The importance of this requirement is highlighted by the fact that it had been segregated from the other
requirements under Article 805 and entrusted into a separate provision, Article 806. The non-observance of
Article 806 in this case is equally as critical as the other cited flaws in compliance with Article 805, and should
be treated as of equivalent import.
‣ Compliance with these requirements, however picayune in impression, affords the public a high degree of
comfort that the testator himself or herself had decided to convey property post mortem in the manner
established in the will. The transcendent legislative intent, even as expressed in the cited comments of
the Code Commission, is for the fruition of the testator’s incontestable desires, and not for the indulgent
admission of wills to probate.
‣ Court also reiterated the comments of Justice JBL Reyes in the Caneda Ruling
‣ Court said that the law is clear that the attestation must state the number of pages used upon which the will is written.
The purpose of the law is to safeguard against possible interpolation or omission of one or some of its pages and
prevent any increase or decrease in the pages. The statement in the Acknowledgment portion of the subject last will
and testament that it "consists of 7 pages including the page on which the ratification and acknowledgment are
written” cannot be deemed substantial compliance. The will actually consists of 8 pages including its
acknowledgment which discrepancy cannot be explained by mere examination of the will itself but through the
presentation of evidence aliunde
‣ Court cited JBL Reyes: “The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear
in each and every page; whether the subscribing witnesses are three or the will was notarized. All these are facts
that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons required to sign did so in the presence
of each other must substantially appear in the attestation clause, being the only check against perjury in
the probate proceedings”
‣ BALANE: It is not correct to say that the defect in stating the number of pages in a will cannot be supplied by the will
itself. In fact, the will is paginated and one can simply look at the number of pages of a will. But note that Justice JBL
Reyes himself said that failure of the attestation to state the total number of pages upon which the will is written is a
fatal defect.
Article 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.
(678, 688a)
‣ May a blind person execute a holographic will? Yes, just because a person is blind doesn't mean he can’t write, note
also that some blind persons become blind only after birth, they already learned how to write.
2. DATED BY THE TESTATOR
‣ Date may be written by any of the conventional ways or by indicating a day of general knowledge (such as “christmas
day of 2015”, “date of the hiroshima bombing”)
‣ Date is very important, it goes into the testamentary capacity of the testator, from this you can already know his age
and it helps determine if he was mentally capacitated.
‣ Proponents of the probate were arguing that while the old civil code (Art. 688) required the testator to state in his
holographic will, the “year, month, and day of its execution”, the new civil code omitted the phrase. Thus, what is
simply required now that the holographic will should be dated (even if there was no day, such as in this case where
the will was dated “Feb./61”).
‣ Court said that the liberal trend of the civil code in the manner of execution of wills should not be overlooked, the
purpose of which, in case of doubt, is to prevent intestacy. Therefore, as a general rule, the “date” in a
holographic will should include the day, month, and year of its execution. However, when there is no
appearance of fraud, bad faith, undue influence, and pressure and the authenticity of the will is established
and the only issue is whether or not the date “Feb./61” appearing on the holographic will is a valid
compliance of Art. 810, probate of the holographic will should be allowed under the principle of substantial
compliance.
‣ LABRADOR VS CA 184 SCRA 170 (1990):
‣ In this case, the will was not expressly dated, but its contents (in one of the testamentary dispositions) impliedly
revealed the date on which it was written
‣ Court said that the law does NOT specify a particular location where the date should be placed in the will.
The only requirements are that the date be in the will itself and executed in the hand of the testator.
‣ BALANE: No, the article does not seem to permit this: “entirely written, dated and signed by the hand of the
testator himself.”
Article 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting
and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the
will is contested, at least three of such witnesses shall be required.
In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary,
expert testimony may be resorted to. (619a)
RULE IN ART. 811; TESTIMONIAL AND DOCUMENTARY REQUIREMENTS IN PROBATE OF HOLOGRAPHIC WILLS
1. TESTIMONIAL REQUIREMENT
‣ Under Art. 811, witnesses who KNOWS the handwriting and signature of the testator are required to explicitly
declare that the will and the signature are in the handwriting of the testator.
‣ It is contested only if the opponents of the will allege that the will was not written or signed by the testator
himself (IMPORTANT!). Alleging fraud or vitiation of consent does not mean it is contested for the purposes of
Art. 811
‣ Under the Rules of Court (Rule 132, Sec. 22), the genuineness of a handwriting may be proved by any of the
following:
2. A witness familiar with such handwriting and who can give his opinion thereon, such opinion being an exception
to the opinion rule
3. A comparison by the court of the questioned handwriting and admitted genuine specimen thereof; and
4. Expert evidence
‣ Court said that the authenticity of the will was NOT contested. It is contested when the authenticity of the will
is challenged. The opponents did not raise the issue of the will’s authenticity. Thus, it is not required that at least
three witnesses be presented.
‣ Court also said that, even assuming, that the will was contested (in that the will’s authenticity is challenged):
‣ Article 811 cannot be interpreted as to require the compulsory presentation of three witnesses to identify
the handwriting of the testator, under penalty of having the probate denied. Since no witness may have
been present at the execution of a holographic will, none being required by law, it becomes obvious that the
existence of witnesses possessing the requisite qualifications is a matter beyond the control of the
proponent.
‣ For it is not merely a question of finding and producing any three witnesses; they must be witnesses “who
know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law
does not so express) “that the will and the signature are in the handwriting of the testator.” There may be no
available witness acquainted with the testator’s hand; or even if so familiarized, the witnesses may be unwilling
to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an
impossibility. This is the reason why the second paragraph prescribes that, in the absence of witnesses and if
the court may deem so, expert testimony may be resorted to.
‣ Where the will is holographic, no witness need be present (Art. 810), and the rule requiring production of
three witnesses must be deemed merely permissive if absurd results are to be avoided.
‣ Again, under Article 811, the resort to expert evidence is conditioned by the words “if the Court deem it
necessary,” which reveal that what the law deems essential is that the Court should be convinced of the
will’s authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their
‣ Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely directory and
is not mandatory.
‣ BALANE: This is obiter since the will was ruled as uncontested, therefore the pronouncements of the court in
assuming that the will was contested is immaterial to the disposition of the case. But, nevertheless, the obiter is a
strong one. Proof is not a matter of quantity, not a matter of numbers. To hold that a probate of a will should require
three witnesses is to make it more serious than treason (which requires only two witnesses). Art. 811 is merely
directory, what is important is the discretion of the court, it depends on the judge.
‣ CODOY VS CALUGAY 312 SCRA 333 (1999):
‣ In this case, the opponents of the probate of a holographic will was arguing the such will was a forgery. They
challenged the authenticity of the will. The proponents presented six witnesses, but the probate court discarded
the testimony of the four since it was worthless.
‣ Court said that based on the language used, Article 811 of the Civil Code is mandatory. The word “shall” connotes
a mandatory order. We have ruled that “shall" in a statute commonly denotes an imperative obligation and is
inconsistent with the idea of discretion and that the presumption is that the word “shall,” when used in a statute is
mandatory.”
‣ We cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if
the holographic will is contested, that law requires three witnesses to declare that the will was in the handwriting of
the deceased.
‣ BALANE: Codoy does NOT reverse Azaola. The word “shall” does not always connote a mandatory intent. It should
be noted that the Codoy ruling was not based on there being less than three witnesses (there were in fact six).
Neither did the ruling state that since there were less than three witnesses (apparently only the testimonies of two
witnesses were considered at length), even if their testimony was convincing, the probate must be denied because
of the mandatory import of 811. (The testimony of these two witnesses was found to be indecisive).The ruling in
fact said that visual examination of the will reveals that the strokes are different compared with standard
documents. Therefore, the basis of the ruling was that evidence for authenticity was not adequate, not failure to
present three witnesses. Which, if analyzed closely is in accord with Azaola, which stated that the decisive factor is
not quantity, but quality. If one goes beneath the surface, Codoy, rather than reversing Azaola, may have affirmed it.
‣ BUT, for the purposes of the bar, Codoy REVERSES Azaola. Art. 811 requiring the production of three
witnesses in case the holographic will was contested is MANDATORY. For purposes of exams under
BALANE, it seems it is merely DIRECTORY.
2. DOCUMENTARY REQUIREMENT
‣ In the probate of a holographic will, must the document itself must be produced?
‣ Yes, a lost holographic will cannot be probated. UNLESS a copy is presented
Article 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by
him in order to make them valid as testamentary dispositions. (n)
Article 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last
disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior
dispositions. (n)
‣ Additional dispositions are those dispositions of the testator written below his signature
‣ What if the additional dispositions are dated but not signed but the last additional disposition is dated and signed?
‣ What if the additional dispositions are neither dated nor signed, but the last additional disposition is dated and signed?
‣ BALANE: A distinction should be made whether the additional dispositions were made on one occasion or on different
occasions. If they were all made on one occasion, the last additional disposition validates all and thus, all additional
dispositions are valid, but if they were made on different occasions, only the last disposition is valid.
‣ This distinction, although theoretically valid, is in practice, almost worthless, because we are speaking here of
holographic wills and the circumstances of their execution are very often extremely difficult to prove.
Article 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate
the same by his full signature. (n)
1. Insertions
2. Cancellations
3. Erasures
4. Alterations
‣ But it cannot merely be his initials, as seen in the case of Kalaw (unless it’s his usual signature?)
‣ Effect of failure to authenticate: The change is simply considered NOT made
‣ No, but at most only as to the particular words erased, corrected or inserted. Unless the portion involved is an
essential part of the will
‣ Court said that Court said that the will was in effect, void because it had no testamentary dispositions left. The
alteration invalidated the testamentary disposition as far as both persons are concerned (the original heir and
the heir who allegedly replaced such person)menggay
‣ Ordinarily, when a number of erasures, corrections, and 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 respects the particular words erased, corrected or interlined
‣ However, when as in this case, the holographic Will in dispute had only one substantial provision, which
was altered by substituting the original heir with another, but which alteration did not carry the requisite of full
authentication by the full signature of the testator, the effect must be that the entire Will is voided or
revoked for the simple reason that nothing remains in the Will after that which could remain valid.
‣ BALANE: The court, in this case, did not give effect to the insertion of Gregorio’s name; why, however, was the
cancellation of the original testamentary institution (the cancellation of rosa) given effect? That cancellation was
not done in the way mandated by the article, because it was not properly authenticated, yet the court gave it
effect by invalidating the disposition. The cancellation of Rosa should not have been given effect, thus, the
disposition should have been given effect, and Rosa as the universal heir. The court should have cited Art. 830
in giving effect to the cancellation of the original heir. Art. 830 pertaining to revocation by means of cancellation.
But even if we apply Art. 830, the cancellation will still be erroneous since Art. 814 is the specific provision, Art.
830 being only a general provision. This decision is really a defective one.
‣ What if there was an insertion by a third person, in the holographic will?
‣ If the insertion was authenticated by the testator, the will is VOID because it’s not completely in his handwriting
‣ If the insertion was NOT authenticated, the will is valid, because the insertion is not deemed made.
Article 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the
law of the country in which he may be. Such will may be probated in the Philippines. (n)
Article 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by
the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with
those which this Code prescribes. (n)
Article 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with
the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own
country, shall have the same effect as if executed according to the laws of the Philippines. (n)
Article 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad. (9a)
Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of
the country in which they are executed.
When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a
foreign country, the solemnities established by Philippine laws shall be observed in their execution.
RULES IN ART. 815, 816, 817; AS TO WHAT LAW ON FORMAL VALIDITY SHALL APPLY
‣ By combining the three articles with Art. 15 and 17, there are identical rules for Filipinos and Aliens.
‣ Every testator, whether Filipino or Alien, wherever he may be, has five choices as to what law to follow for the
form of his will:
1. Law of his citizenship
‣ Art. 816 and 817 for aliens; applying to Filipinos by analogy, Art. 15
5. Philippine law
‣ Art. 816 and 817 for aliens; Art. 15, applying to Filipinos by analogy
‣ Example: A french person who owns several properties in the Philippines is domiciled in Germany, resides in Brazil
because he works there, but is in vacation in Japan
‣ He can either follow Philippine law, German law (place of domicile), Brazilian law (place of residence), Japanese law
(place of execution), or French law (place of citizenship).
Article 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or
for the benefit of a third person. (669)
Article 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the
Philippines, even though authorized by the laws of the country where they may have been executed. (733a)
Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of
the country in which they are executed.
When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a
foreign country, the solemnities established by Philippine laws shall be observed in their execution.
‣ What a single paper contains the two wills of two persons, one will executed in the front page, the other in the
back page?
‣ BALANE: It is NOT a joint will, since there are two separate documents. The fault is in the wording of the law in
saying “one instrument”. What the law prohibits is not two wills on the same sheet of paper but two wills in one
document.
‣ Are reciprocal wills, joint wills?
‣ Not necessarily, reciprocal wills are sometimes used by married couples or life partners as a simple means of
securing the transfer of property to the other spouse upon death. Reciprocal wills between spouses are where
basically mirror images of one another
‣ This is an exception tot he rule on lex loci celebracionis (in Art. 17)
1. The limitation on the modes of revocation (such as one of the testators would not be able to destroy the
document without also revoking it as the will of the other testator, or in any event, as to the latter, the problem of
unauthorized destruction would come in)
4. The danger of one testator killing the other (such that if they executed the joint will for their reciprocal benefit, as
in the case when they are the heirs of each other, especially if husband and wife.)
‣ Reciprocal wills are NOT prohibited as long as they are executed in separate documents (though it encourages
murder)
2. JOINT WILLS EXECUTED BY FILIPINOS IN A FOREIGN COUNTRY ARE VOID IN THE PHILIPPINES, EVEN THOUGH AUTHORIZED BY
THE LAWS OF THE COUNTRY WHERE THEY MAY HAVE BEEN EXECUTED
‣ In Germany, joint wills are allowed if executed by spouses. But even if Filipino spouses, who are in Germany, executed
a joint will, it is void under Art. 819.
‣ Note that under Art. 17, the forms and solemnities of wills is governed by the laws of the country in which they are
executed. So, the general rule that the law of the place of the execution of the will applies, if this is the choice of the
testator. The prohibition on joint wills is an exception to this rule.
‣ Two views. One view says that the will is valid, under Art. 17, 816 and 817 in relation to the principles of
international law (following law of citizenship, residence, place of execution, or domicile, given that such is a
foreign country). On the other hand, the other view says it is void, under the expressed public policy against joint
wills
‣ First view is better, I think, because of Art. 17. This was asked in the recent 2015 bar exams!
Note: When executed by a Filipino and Alien, the joint will is always VOID as to the Filipino; but as to the alien, Art. 816 or 17
applies depending on the place of execution
Article 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to
read and write, may be a witness to the execution of a will mentioned in article 805 of this Code. (n)
Article 821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a document, perjury or false testimony. (n)
6. MORAL FITNESS- Must not have been convicted of falsification of a document, perjury, or false testimony
‣ BALANE: There is some controversy whether that requirement is applicable in cases of wills executed abroad. The
controversy is too sterile and picayune to merit discussion: the Gordian knot is simply cut by the testator resorting to
one of two very easy solutions in case there is no such witness readily available—either execute a holographic will or
elect to follow the law of the place of execution (Articles 17 and 815).
‣ Art. 820 and 821 pertains to the “competency” of a witness to be such. But remember Art. 805 uses the word
“credible” pertaining to the witnesses. What are the distinctions?
‣ GONZALES VS CA (1979):
‣ The “competency” of a person to be an instrumental witness to a will is determined by the statute, that is the
qualifications under Art. 820 and 821. His “credibility” depends on the appreciation of his testimony and arises
from the belief and conclusion of the Court that said witness is telling the truth. Competency as a witness is one
‣ In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the
execution of a will or testament and affirm the formalities attendant to said execution.
‣ The rule is that the instrumental witnesses in order to be competent must be shown to have the qualifications
under Article 820 of the Civil Code and none of the disqualifications under Article 821 and for their testimony
to be credible, that is worthy of belief and entitled to credence, it is not mandatory that evidence be first
established on record that the witnesses have a good standing in the community or that they are honest and
upright or reputed to be trustworthy and reliable, for a person is presumed to be such unless the contrary is
established otherwise. In other words, the instrumental witnesses must be competent and their testimonies
must be credible be- fore the court allows the probate of the will they have attested (Gonzales vs CA 1979)
Article 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming
subsequently incompetent shall not prevent the allowance of the will.
‣ As in the case of testamentary capacity (Art. 801), the time of the execution of the will is the only relevant temporal
criterion in the determination of the competence of the witnesses
Article 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy
is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of
such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other
competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or
legacy had not been made or given. (n)
‣ BALANE: This article is misplaced here, since this is not concerned with capacity to be a witness, but with capacity to
succeed. Note that the person becomes incapacitated as an heir/devisee/legatee but not as a witness
‣ The application of this article is NOT limited to devisees and legatees. Although the provisions of the article seem to
limit its application to devisees and legatees, the disqualification will extend as well to heirs. The intent of the law is to
cover all testamentary institutions
‣ The reason for the infelicitous wording of the article as pointed out by Tolentino, is the injudicious borrowing from
foreign law (American Law in this case)
‣ Note that this disqualification is reiterated in Art. 1027 (4) and there it is not limited to devises and legacies.
‣ Assuming all other requisites for formal validity being present, the will is perfectly valid but the witness (or the relatives
specified in this article) cannot inherit
‣ The disqualification applies only to the testamentary disposition made in favor of the witness or the specified relatives
(spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child).
‣ If the party is also entitled to a legitime or an intestate share, that portion is NOT affected by the parties’ witnessing
the will
‣ BALANE: The witnesses must be objective to the validity of the will. They must not have any interest in the will. if they
have an interest such as a devise or legacy, then obviously they will be a proponent to the will's validity to protect their
interest. They might perjure themselves in the probate to protect their interest. (recit ko ito hehe :D)
Article 824. A mere charge on the estate of the testator for the payment of debts due at the time of the testator's death
does not prevent his creditors from being competent witnesses to his will. (n)
DEFINITION OF A CODICIL
Article 825. A codicil is supplement or addition to a will, made after the execution of a will and annexed to be taken as a
part thereof, by which disposition made in the original will is explained, added to, or altered. (n)
‣ The distinction is purely academic because Art. 826 requires the codicil to be in the form of a will anyway
VALIDITY OF CODICILS
Article 826. In order that a codicil may be effective, it shall be executed as in the case of a will. (n)
‣ No, the law does not require this. Thus, an attested will may have a holographic codicil; a holographic will may have
an attested codicil
Article 827. If a will, executed as required by this Code, incorporates into itself by reference any document or paper, such
document or paper shall not be considered a part of the will unless the following requisites are present:
(1) The document or paper referred to in the will must be in existence at the time of the execution of the will;
(2) The will must clearly describe and identify the same, stating among other things the number of pages thereof;
(3) It must be identified by clear and satisfactory proof as the document or paper referred to therein; and
(4) It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of
account or inventories. (n)
‣ The document should NOT make testamentary dispositions, for then the formal requirement for wills would be
circumvented.
‣ This article covers only attested wills. The wording of the article suggests that holographic wills cannot incorporate
documents by reference.
‣ Paragraph 4 of the article requires the signatures of the testator and the witnesses on every page of the incorporated
document (EXCEPT voluminous annexes).
‣ BALANE: It seems, therefore, that only attested wills can incorporate documents by reference, since only attested wills
are witnessed. Unless, of course, the testator executes a holographic will, and superfluously, has it witnessed. But the
liberal view says that this article also applies to holographic wills, meaning holographic wills can also incorporate
documents and papers by reference.
‣ The purpose of this rule is for authentication, to prevent substitution of the incorporated documents.
Article 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is
void. (737a)
‣ This characteristic of a will is considered with the principle, enunciated in Art. 777, that successional rights vest only upon
death.
‣ A will is effective only upon the testator’s death, and he dies, the will is revocable.
Article 829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid
when it is done according to the law of the place where the will was made, or according to the law of the place in which
the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with
the provisions of this Code. (n)
i. Follow the law of the place where the will was made, or
ii. Follow the law of the place where the testator was domiciled at the time of the revocation
b. If testator is domiciled in the Philippines (This situation is not governed by Art. 829)
‣ Either:
i. Follow Philippine law (consistently with the domiciliary principle followed by this article
ii. Follow the law of the place of revocation (consistently with the principle of lex loci celebracionis in Art. 17)
iii. Follow the law of place where the will was made (by analogy with the rules on revocation where the testator is
a non-philippine domiciliary)
‣ BALANE: Note that the law follows the domiciliary theory. It is curious that it departs from the nationality theory.
MODES OF REVOCATION
(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by
some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some
other person, without the express direction of the testator, the will may still be established, and the estate distributed
in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation,
or obliteration are established according to the Rules of Court. (n)
Article 831. Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions
in the prior wills as are inconsistent with or contrary to those contained in the later wills. (n)
‣ Examples:
a. Preterition (Art. 854)
2. SUBSEQUENT WILL OR CODICIL: BY SOME WILL, CODICIL, OR OTHER WRITING EXECUTED AS PROVIDED IN CASE OF
WILLS
‣ The revocation may also be total or partial
‣ Revocatory effect: Normally, the prior will is totally revoked, but really it depends on the revocatory
clause
ii. Implied Revocation: if the subsequent instrument is inconsistent and contrary to such prior will
‣ Revocatory effect: Annul only such dispositions in the prior wills as are inconsistent with or contrary to
those contained in the later wills (Art. 831)
‣ Mere subsequent wills do not ipso facto revoke prior wills. A person may die with two wills, this is not
prohibited. There must be an express revocation (through a revocation clause) or a implied revocation (through
incompatibility
3. BY PHYSICAL DESTRUCTION: BY BURNING, TEARING, CANCELLING, OR OBLITERATING THE WILL WITH THE INTENTION OF
REVOKING IT
a. Burning
b. Tearing
d. Obliterating
‣ Note that both requisites must concur if the destruction is done by the testator’s agent (Molo vs Molo).
a. Attested Will: The will may still be proved as lost or destroyed (Art. 830 par. 3 and Rule 76, Sec. 6 of the
Rules of Court).
‣ To give effect to an attested will which was destroyed without authority, the following must be proved and
established under the Rules of Court (Art. 831, par. 3):
‣ No will shall be proved as a lost or destroyed will unless the following are established (Rule 76, Sec. 6 of the
Rules of Court):
ii. The will has been in existence at the time of the death of the testator, OR is shown to have been
fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge
iii. The will’s provisions are clearly and distinctly proved by at least two (2) credible witnesses.
‣ When a lost or destroyed will is proved, the provisions thereof must be distinctly stated and certified by the
judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and
recorded.(Rule 76, Sec. 6 of the Rules of Court)
‣ Present the instrumental witnesses to the will and the notary before whom it was acknowledged.
d. Holographic Will: The will CANNOT anymore be probated if it is lost or destroyed, even if such was
unauthorized.
‣ This is because in holographic wills, the will itself must be presented in probate. As the document itself is
the only material proof of authenticity (Gan vs Yap)
‣ EXCEPTION: A copy of the holographic will may be admitted into probate (Rodelas vs Aranza)
‣ Elements of Valid Revocation by Physical Destruction
a. CORPUS (Body): Physical act of destruction
‣ The physical destruction itself, there must be evidence of physical destruction.
‣ Total destruction is not required, as long as evidence on the face of the will shows act to revoke.
‣ The corpus and animus must concur. One without the other will NOT produce revocation.
‣ Example of absence of corpus: If the testator categorically says he will “revoke the will and the will is
considered revoked”, but doesn’t not actually revoke it, there was no revocation, as there was no physical act
of destruction
‣ TESTATE ESTATE OF ADRIANA MALOTO VS. COURT OF APPEALS 158 SCRA 451 (1988):
‣ It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an
effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator.
‣ In this case, while animus revocandi, or the intention to revoke, may be conceded, for that is a state of
mind, yet that requisite alone would not suffice. “Animus revocandi is only one of the necessary elements
for the effective revocation of a last will and testament.
‣ The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by another person in his presence and under his express
direction.
‣ It is not imperative that the physical destruction be done by the testator himself. It may be performed by
another person but under the express direction and in the presence of the testator. Of course, it goes without
saying that the document destroyed must be the will itself.
‣ Presumption of Revocation
‣ The loss or unavailability of a will may, under certain circumstances, give rise to the presumption that it had been
revoked by physical destruction when:
a. It is shown to have been in the possession of the testator, when last seen, or
b. The testator had ready access to the will and it cannot be found after his death.
‣ Where a will which cannot be found is shown to have been in the possession of the testator, when last
seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or
destroyed. The same presumption arises where it is shown that the testator had ready access to the will
and it cannot be found after his death.
‣ It will not be presumed that such will has been destroyed by any other person without the knowledge or
authority of the testator.
‣ The force of the presumption of cancellation or revocation by the testator, while varying greatly, being weak or
strong according to the circumstances, is never conclusive, but may be overcome by proof that the will was
not destroyed by the testator with intent to revoke it.
‣ In a great majority of instances in which wills are destroyed for the purpose of revoking them there is no
witness to the act of cancellation or destruction and all evidence of its cancellation perishes with the testator.
Copies of wills should be admitted by the courts with great caution. When it is proven, however, by proper
testimony that a will was executed in duplicate and each copy was executed with all the formalities and
requirements of the law, then the duplicate may be admitted in evidence when it is made to appear that the
original has been lost and was not cancelled or destroyed by the testator.
Article 832. A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by
reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation. (740a)
‣ Revocation is, generally speaking, an absolute provision, independent of the acceptance or capacity of the new heirs.
‣ Example: X executes a will, naming A as his universal heir. Two years later, X executes a second will revoking the first
and naming B as his universal heir. X then dies and B renounces the inheritance. The first will remains revoked.
‣ The rule laid down in this article will apply even if the revocation of the prior will by the subsequent will is implied (by
incompatibility of provisions, not by a revocatory clause).The intent of the testator to set aside the prior institutions is,
in either case, clear.
‣ EXCEPTION: IN CASE OF CONDITIONAL REVOCATIONS FALLING UNDER THE DOCTRINE OF DEPENDENT RELATIVE
REVOCATION, THE REVOCATION MADE IN A SUBSEQUENT WILL MAY BE INEFFECTIVE.
‣ An exception to the general rule is an instance where the testator provides in the subsequent will that the revocation
of the prior one is dependent on the capacity or acceptance of the heirs, devisees, or legatees instituted in the
subsequent will.
2. A PRIOR WILL IS STILL REVOKED EVEN IF HEIRS IN THE SUBSEQUENT WILL CANNOT INHERIT (ART. 832)
‣ The heirs cannot inherit due to predecease, incapacitated, or renunciation.
‣ Because the revoking will is nonetheless valid, its validity does not depend on the capacity or willingness of the
heirs
‣ EXCEPTION: UNDER THE DOCTRINE OF DEPENDENT RELATIVE REVOCATION, IN THIS CASE, THE PRIOR WILL IS NOT
REVOKED
‣ This doctrine applies if the revocation is conditional, meaning the testator intended the revocation to be
dependent on the effectivity of the institutions of subsequent wills
‣ In other words, the testator intended that if the subsequent heirs either predecease, are incapacitated or are
unwilling to inherit, he would not have revoked the prior will
‣ A dependent relative revocation applies only if it appears that the testator intended his act of revocation
to be conditioned on the making of a new will or on its validity, or efficacy.
‣ The testator’s intent to revoke was conditional on the validity of the subsequent will.
‣ This is the doctrine of dependent relative revocation. The failure of the new testamentary disposition, upon whose
validity the revocation depends, is equivalent to the non-fulfillment of a suspensive condition, and hence prevents the
revocation of the original will. But a mere intent to make at some time a will in place of that destroyed will not render
the destruction conditional. It must appear that the revocation is dependent upon the valid execution of a new will.
(Molo v. Molo)
‣ What if the institution of heirs, legatees, or devisees in the subsequent will is subject to a suspensive condition, is
the revocation of the prior will absolute or conditional?
‣ It always depends on the testator’s intent. If the subsequent will contains a revocatory clause which is absolute or
unconditional, the revocation will be absolute, and the happening or non-happening of the suspensive condition
will be immaterial. If, however, the testator states in the subsequent will that the revocation of the prior will is
subject to the occurrence of the suspensive condition, or if the will does not contain a revocatory clause, the
revocation will depend on whether the condition happens or not.
‣ Is the rule of dependent relative revocation applicable if the revocation of the will is by physical destruction?
‣ In Molo, the Supreme Court held, in an obiter, that the physical destruction of the will did not revoke it, on the
inference, drawn by the Court, that the testator meant the revocation to depend on the validity of a new one.
‣ The doctrine is not limited to the existence of some other document, however, and has been applied where a will
was destroyed as a consequence of a mistake of law
‣ In this case, the court concluded that, the destruction of the prior will by the testator cannot have the effect of
defeating the effectivity of such prior will because of the fact that it is founded on the mistaken belief that the
subsequent will of 1939 has been validly executed and would be given due effect.
‣ The theory on which this principle is predicated is that the testator did not intend to die intestate. And this
intention is clearly manifest when he executed two wills on two different occasions and instituted his wife as
his universal heir. There can therefore be no mistake as to his intention of dying testate.
‣ In Molo, the testator executed a subsequent will 21 years after execution a prior will. The subsequent will contained
a revocation clause but was NOT admitted into probate for failure to comply with the requirements of law. Thus, the
subsequent will was void. The court held that the first will was still effective and not considered revoked since the
the subsequent will containing the revocatory clause was void. Thus, if the will is void, the revocatory clause in
such will is likewise void and inefficacious.
‣ The opponents countered by saying that the prior will remains void as it could not be found and thus presumed
to have been destroyed by the testator (note that this is also a mode of revocation, by physical destruction)
‣ Court held that even if such will can be considered physically destroyed, the revocation cannot be given effect
due to the Doctrine of Dependent Relative Revocation. The prior will remains valid.
‣ BALANE:
‣ Apart from the fact that the statement is obiter (the facts did not clearly show that the will had been destroyed),
it is arguable whether the prior will should be deemed to subsist despite its physical destruction. Can it not be
argued that the act of the testator in destroying the will in fact confirmed his intent to revoke it? Was the
Supreme Court not drawing too remote an inference? The case of Diaz v. De Leon might be more instructive.
‣ The prior will should not be given effect because by physical destruction, the testator definitely shows his intent
to revoke it. First by executing a subsequent will with a revocation clause and second by physical destruction.
So why would you give effect to such prior will?
‣ DIAZ VS. DE LEON (43 PHIL. 413 [1922])
‣ In this case, a subsequent will was executed by the testator which contained a revocation clause to revoke his
prior will. The testator also revoked the prior will by means of physical destruction. However, the subsequent will
was later disallowed in probate as it did not comply with the requirements of validity.
‣ The issue was whether or not the prior will should be given effect
‣ Court said it should NOT be given effect. The intention of revoking the will is manifest from the established fact
that the testator was anxious to withdraw or change the provisions he had made in his first will. This fact is
disclosed by the testator’s own statements to the witnesses.The original will herein presented for probate having
been destroyed with animo revocandi, cannot now be probated as the will and last testament.
‣ Thus, if the prior will was revoked not only by express revocation by a subsequent will but also with physical
destruction it can be said that the intent of the testator was to definitely revoke such prior will. It seems that the
doctrine of Dependent Relative Revocation is NOT applicable to give it effect.
‣ For DRR to apply, it must clearly appear that the testator intended the first will to be effective if the subsequent will
later turns out to be void or ineffective.
Article 833. A revocation of a will based on a false cause or an illegal cause is null and void. (n)
‣ The cause must not be merely based on the testator’s personal judgment, opinions or bias
‣ BALANE: If, for example, a testator were to revoke on the stated ground that he has learned that the heir was
an Ilocano and all Ilocanos are bad, the revocation would be valid. The ground is blind and irrational prejudice
(as all prejudices are) but a purely subjective one and will not invalidate the revocation under this article
b. It must be false
c. The testator must NOT know of its falsity
‣ In other words, the testator has a misconception of the truthfulness of the cause
d. It must appear from the will that the testator is revoking because of the cause which is false
2. REVOCATIONS BASED ON ILLEGAL CAUSES
‣ If the cause is simply illegal, then the rule in Art. 833 also applies.
‣ It must be noted, however, that the illegal cause should be stated in the will as the cause of the revocation
RULE IN ART. 833; RULE IF THE REVOCATION BY THE TESTATOR IS BASED ON A FALSE OR ILLEGAL CAUSE
‣ RULE: A REVOCATION OF A WILL BASED ON A FALSE CAUSE OR AN ILLEGAL CAUSE IS VOID.
‣ Wills are revocable ad nutum, at will or at the testator’s pleasure (Art. 828). Testator may revoke his will for any reason
or no reason at all. He does not need a cause for revoking
‣ The rule in Art. 833 is based on the fact that the law respects the testator’s true intent, such at it sets asides a
revocation that does not reflect such intent.
‣ The extension of the coverage of this Article to illegal causes in effect restricts the testator’s freedom to revoke. There
is no question of mistake in such a case, which might vitiate the testator’s autonomy of will.
‣ Balane: If the principle is that a will is revocable ad nutum, then it should indeed be revocable at pleasure, whatever
the testator’s motives or reasons might be, and however impure or blemished they might be, as long only as he
acts freely and knowingly. A testamentary disposition is, after all, a gratuitous grant, and can be withdrawn for any
reason, or for no reason. The rule in this article regarding nullity of revocation for an illegal cause limits this
freedom, albeit for laudable public policy considerations
‣ Such as by burning, tearing or obliterating the will in a manner as to completely destroy the will
‣ If the revocation is by complete physical destruction, and the revoked will is holographic, then though the revocation
be null and void, probate will not be possible since in a probate of a holographic will, the will itself must be presented.
(Gan v. Yap, Article 811), unless a copy survives (Rodelas v. Aranza)
‣ What is the holographic will was revoked by physical destruction but the cause is false or illegal, but the will is merely
cancelled or it can still be read as it was not completely destroyed? It seems like the will is still valid as the revocation is
void under Art. 833
Article 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made
should be revoked. (741)
‣ Note that this is one instance where a revoked will may be submitted for probate
‣ What if the will was void?
‣ Under the Family Code, admission of illegitimate filiation in a will would constitute proof of illegitimate filiation. (Art. 175,
FC)
‣ Basically, the principle laid down in Article 834 remains unaltered regarding these admissions contained in wills.
Article 835. The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in a
previous one which is void as to its form. (n)
Article 836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the
codicil. (n)
b. REVOKED
2. VOID WILL FOR REASONS OTHER THAN FORMAL DEFECTS OR REVOKED WILLS
‣ The only thing necessary to republish it is for the testator to execute a subsequent will or codicil referring to the
previous will.
‣ There is no need to reproduce the provisions of the prior will in the subsequent instrument.
‣ BALANE: It seems arbitrary that the rules for republication should be different in cases where the original will is void as to
form and those where it is not. The explanation is found in the fact that Article 835 is derived from Argentine law and
Article 836, from California law. Our Code is a patchwork quilt.
REVOCATION OF A SUBSEQUENT “REVOKING” WILL DOES NOT REVIVE THE REVOKED PRIOR
WILL
Article 837. If after making a will, the testator makes a second will expressly revoking the first, the revocation of the
second will does not revive the first will, which can be revived only by another will or codicil. (739a)
‣ Note that the manner of revocation of the first will must be EXPRESS (by revocation clause in the second will). But the
revocation of the second will need NOT be express.
‣ The revocation of the second will does NOT revive the first will
‣ Thus, the first and second will is revoked, the third will alone (if any) remains effective
‣ Illustration:
‣ In 1985, X executed Will I
‣ The revocation of Will II by Will III does not revive Will I, unless of course, Will III expressly revives Will I.
‣ What if the revocation of the first will was implied (by incompatibility)?
‣ Remember that the terms of this article apply only where the revocation of the first will by the second will is
EXPRESS.
‣ By contrary sense, if the revocation is implied, the article will NOT apply, therefore, in such a case, the
revocation of the second will by a third will REVIVES the first will, unless the third will is itself inconsistent with
the first.
‣ This reviving will may be the third will itself. The third will can both revoke the second will and revive the first
will.
‣ EXCEPTIONS TO EXCEPTION: IN THESE CASES, THE FIRST WILL IS NOT REVOKED, AND IS STILL EFFECTIVE:
1. Where the second will is holographic and it is revoked by complete physical destruction, because then,
the possibility of its probate is foreclosed (Gan vs. Yap, supra, Article 811), UNLESS a copy survives
(Rodelas vs. Aranza)
Article 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the
Rules of Court.
The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such
case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's a death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on
petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be
conclusive as to its due execution. (n)
BALANE: The second and third paragraphs have become moot and academic since they are merely transitory provisions
pending the promulgation by the SC of rules, which they have already done. Rules on probate—both post-mortem and ante-
mortem are found in Rule 76 of the Rules of Court.
‣ Probate is a judicial proceeding to pass upon the “formal” validity of a will. It is mandatory, meaning the will will NOT be
effective unless and until it is probated.
‣ It is the first part of the two stages in a settlement proceeding, which are:
‣ BALANE: Probate cannot be foregone, even if the heirs choose to do so. But the heirs can partition the estate after the will
has been probated, even if the partition is against the wishes of the will.
‣ GUEVARA VS. GUEVARA 74 PHIL. 479 (1943):
‣ The presentation of a will to the court for probate is mandatory and its allowance by the court is essential and
indispensable to its efficacy.
‣ This rule is only for holographic wills, in the case of attested wills, it must be presented also but if it is destroyed,
without authority, it can still be probated by testimony of the attesting witnesses
‣ The law enjoins the probate of the will and public policy requires it, because unless the will is probated and notice
thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory.
‣ Even if the decedent left no debts and nobody raises any question as to the authenticity and due execution of the will,
none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance
or probate by the court, first, because the law expressly provides that “no will shall pass either real or personal estate
unless it is proved and allowed in the proper court”; and, second, because the probate of a will, which is a proceeding
in rem, cannot be dispensed with and substituted by any other proceeding, judicial or extrajudicial, without offending
against public policy designed to effectuate the testator’s right to dispose of his property by will in accordance with
law and to protect the rights of the heirs and legatees under the will thru the means provided by law, among which are
the publication and the personal notices to each and all of said heirs and legatees
KINDS OF PROBATE
1. POST-MORTEM PROBATE: PROBATE AFTER THE TESTATOR’S DEATH
2. ANTE-MORTEM PROBATE: PROBATE DURING THE TESTATOR’S LIFETIME
‣ Ante-mortem probate is a new feature introduced by the new Civil Code.
‣ The Code Commission explains the reason for the innovation thus: “Most of the cases that reach the courts involve
either the testamentary capacity of the testator or the formalities adopted in the execution of wills. There are relatively
few cases concerning the intrinsic validity of testamentary dispositions. It is far easier for the courts to determine the
mental condition of a testator during his lifetime than after his death. Fraud, intimidation and undue influence are
minimized. Furthermore, if a will does not comply with the requirements prescribed by law, the same may be corrected
at once. The probate during the testator’s life, therefore, will lessen the number of contests upon wills. Once a will is
probated during the lifetime of the testator, the only questions that may remain for the courts to decide after the
testator’s death will refer to the intrinsic validity of the testamentary dispositions. It is possible, of course, that even
when the testator himself asks for the allowance of the will, he may be acting under duress or undue influence, but
these are rare cases.” (The Code Commission Report, p. 53)
‣ Easier for the court to determine the mental capacity of the testator, since he is still alive
‣ It may be superfluous or futile because the testator can easily make a subsequent will revoking it. So unless the
testator is very sure, it might be useless to have an ante-mortem probate.
‣ Thus, in this case, a void will (due to formal defects) may be given effect if probated and allowed, because of res
judicator
‣ The court held that the CA erred and upheld the decision of the trial court. While res judicator operates to validate
the probate of the will of the husband even if it is void as a joint will, it does not include the wife’s will. The Court of
Appeals should have taken into account also, to avoid future misunderstanding, that the probate decree in 1939
could only affect the share of the deceased husband, It could not Include the disposition of the share of the wife,
who was then still alive, and over whose interest in the conjugal properties the probate court acquired no
jurisdiction, precisely because her estate could not then be in issue.
‣ A final judgment rendered on a petition for the probate of a will is binding upon the whole world and public
policy and sound practice demand that at the risk of occasional errors, judgment of courts should become
final at some definite date fixed by law (Interest rei publicae ut Jinis sit litium).
‣ The ultimate decision on whether an act is valid or void rests with the courts, and here they have spoken
with finality when the will was probated in 1939
‣ Thus, the joint will is valid as the husband’s will (by reason of res judicata) BUT void as to the wife
‣ The testamentary proceeding is a special proceeding for the settlement of the testator’s estate. A special
proceeding is distinct and different from an ordinary action
‣ The finality of a decision of allowance of a will into probate is conclusive as to the due execution or formal
validity of the will. That means that the testator was of sound and disposing mind at the time when he
executed the will and was not acting under duress, menace, fraud, or undue influence; that the will was
signed by him in the presence of the required number of witnesses, and that the will is genuine and not a
forgery. Accordingly, these facts cannot again be questioned in a subsequent proceeding, not even in a
criminal action for the forgery of the will.
‣ After the finality of the allowance of a will, the issue as to the voluntariness of its execution cannot be
raised anymore
‣ It is a fundamental concept in the organization of every jural system, a principle of public policy, that, at the risk of
occasional errors, judgments of courts should become final at some definite date fixed by law. Interest rei publicae
utfinis sit litum The very object for which the courts were constituted was to put an end to controversies.
‣ After the period for seeking relief from a final relief or judgment under Rule 38 of the Rules of Court has expired, a
final judgment or order can be set aside only on the grounds of (a) lack of jurisdiction or lack of due process of law
or (b) that the judgment was obtained by means of extrinsic or collateral fraud. In the latter case, the period for
annulling the judgment is four years from the discovery of fraud
‣ Note that Gallanosa enumerates what are covered by or included in the term “formal validity” and therefore are
conclusively settled by a final decree of probate:
3. That the will was signed by him in the presence of the required number of witnesses, and
‣ BALANE: As to number 3, it would be better to state it thus: “that all the formal requirements of the law have been
complied with.” These formal requirements are those laid down in Articles 804-808, and 820-821 (if the will is an
attested one) or those provided in Articles 804 and 810-814 (if the will is holographic), and Articles 818-819.
‣ DOROTHEO VS. CA, 320 SCRA 12 [1999]
‣ This case also enumerates what formal validity encompasses:
3. Testamentary capacity
‣ Another way of defining the scope of a final decree of probate is to refer to Article 839
‣ Objections to a will on any of the grounds enumerated in that article is foreclosed by a final decree of probate.
‣ A decree of probate, therefore, does not concern itself with the question of intrinsic validity and the probate court
should not pass upon that issue. This general rule, however, “is not inflexible and absolute”. The probate of a will
might become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations
demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the
issue.” (Nepomuceno vs. CA, 139 SCRA. 206 [1985], citing various cases). Or, as stated in another case, “save in an
extreme case where the will on its face is intrinsically void, it is the probate court’s duty to pass first upon the formal
validity of the will.” (Balanay v. Martinez, 64 SCRA 452 [1975])
‣ The general rule is that in probate proceedings, the court’s area of inquiry is limited to an examination and
resolution of the extrinsic validity of the Will. The rule, however, is not inflexible and absolute. Given exceptional
circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon
certain provisions of the Will.
‣ The probate of a will might b come an idle ceremony if on its face it appears to be intrinsically void. Where
practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated,
the court should meet the issue. This is also based on the fact that separate proceedings to determine the intrinsic
validity of the testamentary provisions would be superfluous.
‣ BALANE: It seems, therefore, that, on the authority of Nepomuceno and the cases there cited, a probate court may
pass upon the issue of intrinsic validity if on the face of the will, its intrinsic nullity is patent.
Article 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other
person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing
his signature thereto. (n)
‣ It covers matters involved in formal validity. In relation to the Gallanosa Case, a probate decree once final, forecloses any
subsequent challenge on any of the matters enumerated in this article
‣ The issue of formal validity or nullity is precisely what the probate proceedings will determine.
‣ A will is either valid or void, there is no such thing as a voidable will. If none of the defects enumerated in this article is
present, the will is valid; if any one of these defects is present, the will is void.
2. THE TESTATOR WAS INSANE, OR OTHERWISE MENTALLY INCAPABLE OF MAKING A WILL, AT THE TIME OF ITS EXECUTION
‣ This pertains to the testamentary incapacity of the testator.
3. THE WILL WAS EXECUTED THROUGH FORCE OR UNDER DURESS, OR THE INFLUENCE OF FEAR, OR THREATS
‣ Force or violence in contract law
‣ Article 1335. There is violence when in order to wrest consent, serious or irresistible force is employed
‣ Duress, intimidation, influence of fear, or threats in contract law
‣ Art. 1335: There is intimidation when one of the contracting parties is compelled by a reasonable and well-
grounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his
spouse, descendants or ascendants, to give his consent. To determine the degree of intimidation, the age, sex and
condition of the person shall be borne in mind. A threat to enforce one's claim through competent authority, if the
claim is just or legal, does not vitiate consent.
4. THE WILL WAS PROCURED BY UNDUE AND IMPROPER PRESSURE AND INFLUENCE, ON THE PART OF THE BENEFICIARY OR OF
SOME OTHER PERSON
‣ Article 1337: There is undue influence when a person takes improper advantage of his power over the will of
another, depriving the latter of a reasonable freedom of choice. The following circumstances shall be considered:
the confidential, family, spiritual and other relations between the parties, or the fact that the person alleged to have
been unduly influenced was suffering from mental weakness, or was ignorant or in financial distress.
5. THE SIGNATURE OF THE TESTATOR WAS PROCURED BY FRAUD
‣ Fraud in contract law
‣ Article 1338: There is fraud when, through insidious words or machinations of one of the contracting parties, the
other is induced to enter into a contract which, without them, he would not have agreed to.
‣ Article 1331: In order that mistake may invalidate consent, it should refer to the substance of the thing which is the
object of the contract, or to those conditions which have principally moved one or both parties to enter into the
contract. Mistake as to the identity or qualifications of one of the parties will vitiate consent only when such identity
or qualifications have been the principal cause of the contract. A simple mistake of account shall give rise to its
correction.
‣ PARAS — Apply Institution if proper; if not, apply Substitution if proper; if not, apply Representation if proper; if not,
apply Accretion if proper; if not, apply Intestacy.
Article 840. Institution of heir is an act by virtue of which a testator designates in his will the person or persons who are to
succeed him in his property and transmissible rights and obligations. (n)
‣ BALANE: The only way to institute an heir is by making a will. Note that the right of the testator to institute persons to
succeed only covers the “free portion” of his estate. The legitime is NOT subject to institution because it is reserved for
the compulsory heirs. He can, of course, dispose of the entire estate if he has no compulsory heirs
Article 841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not
comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be
incapacitated to succeed.
In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of
the estate shall pass to the legal heirs. (764)
Article 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance,
legal succession takes place with respect to the remainder of the estate. The same rule applies if the testator has
instituted several heirs, each being limited to an aliquot part, and all the parts do not cover the whole inheritance. (n)
APPLICABILITY OF ART. 841; WHEN THE ENTIRE ESTATE OF FREE PORTION IS NOT DISPOSED OF
‣ Art. 841 contemplates a situation where the entire estate or free portion is NOT disposed of, either because the testator
failed to dispose of it completely or partially, or the heirs (or devisees, or legatees) were unwilling or unworthy to inherit)
1. The will does not contain an institution of an heir (does not contain any testamentary disposition)
2. The institution does not cover the entire estate, and
3. The person instituted should not accept the inheritance (heir is unwilling)
4. The person instituted is incapacitated to succeed (heir is unworthy)
‣ Even if the will does not contain any testamentary disposition, it will be formally valid provided it complies with all
the formal requisites. The will is valid to form but has no substance; but note that it has the same effect as though
the will is void as to form, both will result in intestacy
‣ BALANE: Thus, even if there is no institution of an heir, the will is valid, but it is useless unless it acknowledges an
illegitimate child or disinherits a compulsory heir.
2. MIXED SUCCESSION (TESTATE AND INTESTATE), IF ONLY A PART OF THE ESTATE OR FREE PORTION IS DISPOSED OF
‣ Testamentary succession as to the part disposed of by the will, and intestate succession as to the part not
disposed of by the will.
‣ The legitimes, of course, if there are any, pass by strict operation of law.
‣ As seen in the case of Seangio vs Reyes, this was considered an act of disposition
3. When it instituted an executor
Article 842. One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person
having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code
with regard to the legitime of said heirs. (763a)
‣ Also, the testator can disinherit his compulsory heirs but the only way to do this is to make a will
2. If the testator leaves compulsory heirs: The disposable or free portion only (the net hereditary estate minus the
legitimes)
‣ The amount of the legitimes depends on the kinds and number of compulsory heirs. Various combinations are
possible. Thus, the amount of the disposable portion is also variable.
Article 843. The testator shall designate the heir by his name and surname, and when there are two persons having the
same names, he shall indicate some circumstance by which the instituted heir may be known.
Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can
be no doubt as to who has been instituted, the institution shall be valid. (772)
Article 844. An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is possible,
in any other manner, to know with certainty the person instituted.
If among persons having the same names and surnames, there is a similarity of circumstances in such a way that, even
with the use of other proof, the person instituted cannot be identified, none of them shall be an heir. (773a)
Article 845. Every disposition in favor of an unknown person shall be void, unless by some event or circumstance his
identity becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid. (750a)
‣ Generally, the testator should designate the heir by his name and surname, and when there are two persons having
the same names, he shall indicate some circumstance by which the instituted heir may be known.
‣ Example: “ I institute Father Bernas”, “to my beloved girlfriends, Anne Sy of Rizal and Anne Sy of Makati”
‣ But, even though the testator may have omitted the name of the heir, should he designate him in such manner that
there can be no doubt as to who has been instituted, the institution is still valid
‣ Examples: “I institute my eldest brother, I institute the dean of the Ateneo Law School when this will was made”
‣ Also, designation is valid if the identity is not known at the time of making the will but can be known in the future by
circumstances .This is by establishing certain criteria at the proper time
‣ Example: “To whoever becomes the next President of the Philippines after my death”, “to the bar topnotcher of the
2040 bar exams”
‣ The designation of name and surname is directory. What is required is that the identity of the designated successor be
sufficiently established. This is most usually done by giving the name and surname, but there are other ways, as can
be gleaned from Article 843, par. 2.
2. AN ERROR IN THE NAME, SURNAME, OR CIRCUMSTANCES OF THE HEIR SHALL NOT INVALIDATE THE INSTITUTION WHEN IT IS
POSSIBLE, IN ANY OTHER MANNER, TO KNOW WITH CERTAINTY THE PERSON INSTITUTED
‣ If there is any ambiguity in the designation the ambiguity should be resolved in accordance with Article 789.
‣ Remember that rules on interpretation and construction of wills if there are patent or latent doubts or ambiguities such
as an imperfect description of heirs (Art. 789)
‣ Imperfect descriptions be cleared up as much as possible, as long as the testator’s intent as to who he is
instituting can be reasonably ascertained, the institution is not invalidated.
‣ The heir, legatee, or devisee must be identified in the will with sufficient clarity to leave no doubt as to the testator’s
intention. The basic rule in testamentary succession always is respect for and compliance with the testator’s wishes
3. IF IT IS NOT POSSIBLE TO RESOLVE THE AMBIGUITY, THE TESTATOR’S INTENT BECOMES INDETERMINABLE AND, THEREFORE,
INTESTACY AS TO THAT PORTION WILL RESULT. THE RESULT IS, THAT THE INSTITUTION IS VOID.
1. Persons having the same names and surnames, and there is a similarity of circumstances in such a way that,
even with the use of other proof, the person instituted cannot be identified (Art. 844, 2nd paragraph)
‣ This refers to a successor whose identity cannot be determined because the designation in the will is so
unclear or so ambiguous as to be incapable of resolution
‣ This does not refer to a mere stranger, or someone whom the testator is not personally acquainted. The
testator may institute somebody who is a perfect stranger to him, provided the identity is clear.
‣ Example: “To my students in Succession of the Ateneo Law School Block B of the school year starting 2015”
Article 846. Heirs instituted without designation of shares shall inherit in equal parts.
‣ It will not apply to an heir who is both a compulsory and a testamentary heir, for in that case the heir will get his
legitime and his testamentary portion (Art. 1062)
‣ Example: X, the testator, in his will institutes to one-fourth of his estate the following: A (his son), B (his cousin), and C
(his friend). A, being Xs compulsory heir, will get his legitime plus one-third of the one-fourth given by will. As
testamentary heir, A gets a share equal to those of B and C, but since A is also a compulsory heir, and is entitled to his
legitime over and above his testamentary share, he will end up getting a larger slice of Xs estate than B or C.
‣ Not explicitly covered by this article is an instance where the shares of some of the heirs are designated and
those of others are not.
‣ Example: “I institute to one-fourth of my estate A, B, C, and D, of which portion A is to get one-third, and B is to get
one-fourth.” The shares of C and D are unspecified. How much are they to get? Are they to divide equally the
remaining portion of the one-fourth of the estate, after deducting A’s and B’s portions (The remainder is 5/12 of 1/4)?
Article 847. When the testator institutes some heirs individually and others collectively as when he says, "I designate as
my heirs A and B, and the children of C," those collectively designated shall be considered as individually instituted,
unless it clearly appears that the intention of the testator was otherwise. (769a)
Article 849. When the testator calls to the succession a person and his children they are all deemed to have been
instituted simultaneously and not successively. (771)
BALANE: It may be noted, amusingly, that, to the author’s knowledge, Art. 847 is the only article in the Code which contains
an example. This article is hardly a model for codification
‣ Ex: ”I designate as my heirs A and B, and the children of C" or when the testator calls to the succession a person and
his children
RULES OF INDIVIDUAL AND SIMULATENEOUS INSTITUTION AND EQUALITY UNLESS OTHERWISE STATED
‣ RULE: THOSE COLLECTIVELY DESIGNATED SHALL BE CONSIDERED AS INDIVIDUALLY INSTITUTED, UNLESS IT CLEARLY APPEARS
THAT THE INTENTION OF THE TESTATOR WAS OTHERWISE.
‣ Meaning, those who have been individually and collectively designated are deemed to have been instituted
simultaneously and not successively
‣ This follows the basic rule of equality in the previous article. In addition, this article establishes the presumption that the
heirs collectively referred to are designated per capita along with those separately designated.
‣ Examples:
1. “To my friend Dean Sedfrey Candelaria, my friend Atty. Giovanni Vallente, and to my students of Succession in the
Ateneo Law School Block B of the school year starting 2015”
‣ This is not to be interpreted as 1/3 to the Dean, 1/3 to the Atty. and 1/3 to the class. Rather, the entire of the estate
should be divided equally among the dean, the Atty. and to each member of the class C. Because the presumption
is that the members of the class were individually designated.
2. “To A, B and the children of C”
‣ This is not to be interpreted to mean that A and B would get 1/3 each and the children of C would all share in 1/3
portion. But rather, assuming C has 4 children, A would get 1/6, B would get 1/6 and each of the children of C
would get 1/6.
Article 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood,
the inheritance shall be distributed equally unless a different intention appears. (770a)
‣ Full blood means same parents; half blood means only one parent is the same
‣ BALANE: Does Article 848 apply even to illegitimate brothers and sisters, in cases where the testator is of legitimate
status and vice-versa? It seems so, because Article 848 makes no distinction. Ubi lex non disttnguit, nec nos
distinguere debemus.
‣ Also, this article refers only to testamentary succession, in intestacy, the rule is different
‣ This article follows the general rule of equality laid down in Article 846. If the testator intends an unequal apportionment,
he should so specify.
‣ Thus, the rule on full and half-siblings depends on the kind of succession:
1. IN TESTAMENTARY SUCCESSION
‣ Equality of shares of full- and half-blood brothers and sisters, unless the testator provides otherwise (Article 848)
2. IN INTESTATE SUCCESSION
Article 850. The statement of a false cause for the institution of an heir shall be considered as not written, unless it
appears from the will that the testator would not have made such institution if he had known the falsity of such cause.
(767a)
‣ Note that the testator has the absolute freedom to revoke and absolute freedom to institute, regardless of any reason,
these are components of testamentary freedom
‣ But Art. 833 and 850 limits this freedom, really, to respect the testator’s intent.
‣ Also, this article does NOT restrict the operation of Article 1028 in relation to Article 739 (on prohibited donations)
declaring void certain testamentary dispositions, by reason of public policy. The annulling factor in those two articles is
not falsity but illegality.
‣ Example: “I institute A as my heir because he is kind” Even though it is later proven that A is not kind, the institution is
nonetheless valid. This is because the “true” cause of the institution is not really the fact of kindness of the heir, but
rather the testator’s liberality.
‣ Thus, the mere fact that the testator gives a reason for an institution, and it is later proved that such reason is false,
does not invalidate the institution. Institutions based on false causes are generally valid, because they are deemed
based on the testator’s liberality.
‣ EXCEPTION: The falsity of the stated cause for institution will set aside the institution (will make it VOID), if certain
factors are present.
‣ What factors are these? Those factors the SC provides for us in the case of Austria
‣ AUSTRIA VS. REYES 31 SCRA 754 (1970)
‣ Before the institution of heirs may be annulled under article 850 of the Civil Code, the following requisites
must concur:
1. The cause for the institution of heirs must be stated in the will
2. The cause must be shown to be false and,
3. It must appear from the face of the will that the testator would not have made such institution if he had
known the falsity of the cause.
‣ Note that this last requisite is a both a requirement in institution and revocation based on false cause
‣ Article 850 is a positive injunction to ignore whatever false cause the testator may have written in his will for the
institution of heirs. Such institution may be annulled only when one is satisfied, after an examination of the will,
that the testator clearly would not have made the institution if he had known the cause for it to be false. The will
alone should provide the answer
‣ Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in the Civil Code:
The words of a will are to receive an interpretation which will give to every expression some effect, rather than one
which will render any of the expressions inoperative: and of two modes of interpreting a will, that is to be preferred
which will prevent intestacy.
‣ Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention on the part of
the testator to dispose of practically his whole estate, as was done in this case. Moreover, so compelling is the
‣ BALANE: Exceptionally, therefore, the falsity of the cause will annul the institution if the three requisites enumerated
in Austria concur.
Article 841. In such cases the testamentary dispositions made in accordance with law shall be complied with and the
remainder of the estate shall pass to the legal heirs. (764)
Article 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance,
legal succession takes place with respect to the remainder of the estate.The same rule applies if the testator has
instituted several heirs, each being limited to an aliquot part, and all the parts do not cover the whole inheritance. (n)
BALANE: Art. 851 has already been covered by Art. 841, it is redundant. But note that the wording of Art. 851 is erroneous.
Legal succession does not take place with respect to the remainder of the estate, but rather to the remainder of the
disposable (free) portion. There may, after all, be compulsory heirs whose legitimes will therefore cover part of the estate; the
legitimes do not pass by legal or intestate succession.
WHEN THE WHOLE ESTATE IS INTENDED TO BE DISPOSED OF BUT THE INSTITUTIONS DO NOT
COVER THE ENTIRE PORTION
Article 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or
the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and
their aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased
proportionally. (n)
Article 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed
the whole inheritance, or the whole free portion, as the case may be, each part shall be reduced proportionally. (n)
‣ If no compulsory heirs basis is the whole estate; if there are compulsory heirs, basis is the disposable free portion
3. The testator has designated a definite portion for each heir, but the total of such portions do NOT correspond
to the entire or disposable portion of the estate
‣ It does not correspond to the entire or disposable estate either because the total of the designated portions is less
than it or it exceeds it
‣ Under Art. 852 and 853, the intent of the testator is to institute the heirs to the entire estate or disposable portion, as
manifested in the will. He simply made a mistake in the addition of the different portions each heir is to receive.
‣ Under Art. 841 and 851, no such intent to institute the heirs to the entire estate or disposable portion is manifest; and
the testator failed to dispose of his entire estate or the disposable portion, as the case may be.
2. IF THE TOTAL OF ALL THE PORTIONS EXCEEDS THAN THE WHOLE ESTATE OR THE WHOLE DISPOSABLE PORTION (ART. 853)
‣ A proportionate reduction will be made
PRETERITION; OMISSION OF THE COMPULSORY HEIRS, IN THE DIRECT LINE, FROM THE
INHERITANCE
Article 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the
time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the
right of representation. (814a)
BALANE: Preterition means “to go beyond” or “to bypass”; it means omission. but omission from what? The answer to that
question is the basic problem in preterition.
a. Testamentary succession
b. Legacy or devise
c. Intestacy, or
d. Donation inter vivos
‣ BALANE: The mention or non-mention in the will is NOT constitutive of preterition. Preterition must be total omission
from the inheritance
‣ An heir can be omitted in the will and not be preterited. This is seen in the case of Seangio vs Reyes.
‣ An heir can also be mentioned or included in the will but be preterited
‣ BALANE: No preterition if there is no will, compulsory heirs cannot be preterited if intestacy results because then, they
will not be totally omitted from the inheritance
3. PRETERITION IS DIFFERENT FROM DISINHERITANCE OR INEFFECTIVE DISINHERITANCE
‣ Preterition vs Disinheritance
‣ Preterition is total omission from the inheritance, without the heir being expressly disinherited. The implied basis of
the rule on preterition is inadvertent omission by the testator. Thus, if the testator explicitly disinherits the heir,
this article will NOT apply.
‣ Should the disinheritance be ineffective, for absence of one or other of the requisites for a valid disinheritance,
the heir is simply entitled to demand his rightful share.
‣ With respect to the compulsory heir, Preterition is a tacit deprivation; while Disinheritance is an express deprivation
by the Testator
‣ Should the disinheritance be ineffective, for absence of one or other of the requisites for a valid disinheritance, the
heir is simply entitled to demand his rightful share.
4. PRETERITION ONLY COVERS COMPULSORY HEIRS IN THE DIRECT LINE. THUS, A SPOUSE, AS A COMPULSORY HEIR, IS NOT
COVERED
‣ Art. 854 covers compulsory heirs in the direct line, whether living at the time of the execution of the will or born after
the death of the testator. It does NOT cover the surviving spouse, who is a compulsory heir, though NOT in the direct
line.
‣ Thus, a spouse cannot be preterited. Only compulsory heirs in the direct line may preterited
‣ Art. 964 defines what a direct line is. “A direct line is that constituted by the series of degrees among ascendants and
descendants.”
‣ Compulsory heirs in the direct line covers children or descendants, and in proper cases, (in default of children or
descendants) parents or ascendants.
‣ BALANE: This is a bad provision, it omits the spouse from its protection and remedies. All compulsory heirs should be
covered. BUT the spouse is not unprotected, his or her remedy is to file an action for the completion of his or her
legitime. Though the protection given by Art. 854 is much better.
‣ Remedy of the Spouse who was omitted from the inheritance? Completion of Legitime under Art. 906 and 907
‣ Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may
demand that the same may be fully satisfied.
‣ Art. 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on
petition of the same, insofar as they may be inofficious or excessive.
‣ Are illegitimate descendants or ascendants within the coverage of “compulsory heirs in the direct line”?
‣ BALANE: Yes, since the law does not distinguish
5. ART. 854 COVERS ADOPTED CHILDREN OF THE TESTATOR. THEY ARE DEEMED DESCENDANTS IN THE DIRECT LINE BY “FICTION
OF LAW”
‣ Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not ascend or descend
from the testator, although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory
heir, there is no preterition even if she is omitted from the inheritance, for she is not in the direct line. (Art. 854, Civil
Code) However, the same thing cannot be said of adopted children
‣ Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted
person the same rights and duties as if he were legitimate child of the adopter and makes the adopted
person a legal heir of the adopter.
‣ BALANE: An adopted child, therefore, if totally omitted in the inheritance, is preterited within the contemplation of
Article 854 and can invoke its protection and consequences. Acain’s logic is the soul of simplicity: since an adopted
child is given by law the same rights as a legitimate child, vis-a-vis the adopter, then the adopted child can, in proper
cases, invoke Article 854 in the same manner that a legitimate child can. The law cited by Acain—Article 39 of PD 603
(the Child and Youth Welfare Code) was supplanted by Article 189(1) of the Family Code, which, however, has in turn
been supplanted by Secs. 17 and 18 of RA 8552 (the Domestic Adoption Act of 1998)
6. PRETERITION CAN ONLY BE KNOWN AT THE TIME OF THE TESTATOR'S DEATH, NOT DURING THE EXECUTION OF THE WILL
‣ This is because the compulsory heirs can only be determined at the time of the testator’s death
‣ Example: X has two sons, A and B. In 2005, X makes a will. He gives 1/2 to his son B and 1/2 to a third person C.
Note that A has no share in the will when it was made. In 2012, A dies. X dies only in 2013. In other words, A pre-
deceases his father, X. Even if there was a “potential” preterition of A when the will was made in 2005, he was not
preterited because when X died, A was already dead, thus he could no longer be a compulsory heir as this is
determined only at the time of the testator’s death, not when the will was made. Remember the principle that wills
only take effect at the testator’s death.
7. ART. 854 COVERS COMPULSORY HEIRS IN THE DIRECT LINE BORN AFTER THE EXECUTION OF THE WILL, WHETHER BORN
BEFORE OR AFTER THE TESTATOR'S DEATH
‣ Quasi-posthumous children
‣ One who, born during the life of his grand father, or other male ascendant, was not his heir at the time he made his
testament, but who by the death of his father became his heir in his lifetime (law.com)
‣ BALANE: There is a flaw in the wording of the Article. The phrase “whether living at the time of the execution of the
will or born after the death of the testator” does not, by its terms, include those compulsory heirs in the direct line
born after the execution of the will but before the testator’s death. Such children are, without doubt, to be
included within the purview of the protection of this Article. This gap is merely the result of careless drafting.
The proposed Spanish Code of 1851 expresses the legislative intent correctly: “whether living at the time of the
execution of the will or born subsequently, even after the testator’s death.”
‣ Also, remember that while you determine who the compulsory heirs are only at the time of the testator’s death,
he might have children conceived in his lifetime but unborn during his death. They are also deemed
compulsory heirs
‣ Art. 40 and 41, an unborn child is considered born for all purposes favourable to it provided they are born later.
8. IF THE OMITTED COMPULSORY HEIRS IN THE DIRECT LINE SHOULD DIE BEFORE THE TESTATOR, THE INSTITUTION SHALL BE
EFFECTUAL, WITHOUT PREJUDICE TO THE RIGHT OF REPRESENTATION.
‣ “If the omitted compulsory heirs should die before the testator, the institution shall be effectual”
‣ This pertains to cases of Predecease of Preterited Compulsory Heir
‣ This means that when a compulsory heir was omitted at the time of the execution of the will, but such heir pre-
deceases the testator, then the institution are effectual, meaning the omission of the compulsory heir is of NO
CONSEQUENCE, it does not make the institutions invalid, meaning there is NO preterition
‣ See comments in number 5 above. The determination of whether or not there are preterited heirs can be made
only upon the testator’s death. Should the preterited heir predecease (or be unworthy to succeed) the testator,
obviously the question of preterition of that heir becomes moot.
1. IF THE HEIR IN QUESTION IS INSTITUTED IN THE WILL BUT THE PORTION GIVEN TO HIM BY THE WILL IS LESS THAN HIS
LEGITIME
c. The testamentary disposition given to such heir was LESS than her legitime
‣ Court held that there was no preterition because there was no total omission, inasmuch as the heir received
something from the inheritance.
‣ The heir who received something in the will but which is less than his entitled legitime, the remedy is not
found in Article 854 but in Articles 906 and 907, for completion of legitime
‣ Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him
may demand that the same may be fully satisfied.
‣ Art. 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be
reduced on petition of the same, insofar as they may be inofficious or excessive.
‣ The court said there was not preterition since the testator did not entirely omit Helen, but left her a legacy of
P3.600.00.
‣ Should the value of the legacy or devise be less than the recipient’s legitime, his remedy, as in number 1, is only for
completion of his legitime under Articles 906 and 907.
‣ BALANE: When a compulsory heir, in the direct line, receives something (such as a devise or legacy) from the
inheritance, no matter how small, there is NO preterition. Remedy is merely for completion of his legitime.
3. IF THE HEIR HAD RECEIVED A DONATION INTER VIVOS FROM THE TESTATOR
‣ The donation inter vivos is treated as an advance on the legitime under Articles 906, 909, 910 and 1062.
‣ Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him
may demand that the same may be fully satisfied.
‣ Art. 909. Donations given to children shall be charged to their legitime. Donations made to strangers shall be
charged to that part of the estate of which the testator could have disposed by his last will.Insofar as they may
be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established
by this Code.
‣ Art. 910. Donations which an illegitimate child may have received during the lifetime of his fa- ther or mother,
shall be charged to his legitime. Should they exceed the portion that can be freely disposed of, they shall be
reduced in the man- ner prescribed by this Code.
‣ Art. 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly
provided, or if the donee should repudiate the inheritance, unless the donation should be re- duced as
inofficious.
4. IF THE HEIR IS NOT MENTIONED IN THE WILL NOR WAS A RECIPIENT OF A DONATION INTER VIVOS FROM THE TESTATOR,
BUT NOT ALL OF THE ESTATE IS DISPOSED OF BY THE WILL— THERE IS NO PRETERITION.
‣ The omitted heir in this instance would receive something by intestacy, from the portion not disposed of by the will
(the vacant portion).
‣ The right of the heir, should the vacant portion be less than his legitime, will simply be to demand completion of his
legitime, under Articles 906 and 907.
‣ Note that this is about the only instance in the Philippine law on succession where there is still a practical effect in the
distinction between an heir and a legatee/devisee.
‣ Practically, a compulsory heir who was preterited can get more than his legitimate because all institutions of heirs are
annulled
‣ BALANE:
‣ The institution is not merely reduced, but is annulled or set aside. The heirs do not get anything by testamentary
succession. However, the result is NOT always total intestacy because the devices or legacies are valid as long as
they do not impair the legitimes.
‣ NUGUID VS. NUGUID 17 SCRA 449 (1966)
‣ To ‘annul’ means to abrogate, to make void. “The word ‘annul’ as used in statute requiring court to annul alimony
provisions of divorce decree upon wife’s remarriage means to reduce nothing; to annihilate; obliterate: blot out; to
make void or of no effect; to nullify; to abolish
‣ In this case, there was no specific legacies or bequests provided for. Thus the court said that the nullity is complete
and the testator died completely intestate.
‣ As of consequence of “annulment”, the universal institution to the entire inheritance results in totally abrogating the
will. Because, the nullification of such institution of universal heir—without any other testamentary disposition in the
will—amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 offers
no leeway for inferential interpretation. Giving it an expansive meaning will tear up by the roots the fabric of the
statute.
‣ Legacies and devises merit consideration only when they are so expressly given as such in a will. Nothing in Article
854 suggests that the mere institution of a universal heir in a will—void because of preterition—would give the heir so
insti- tuted a share in the inheritance. As to him, the will is inexistent. There must be, in addition to such institution, a
testamentary disposition granting him bequests or legacies apart and separate from the nullified institution of heir.
‣ As Manresa puts it, annulment throws open to intestate succession the entire inheritance
‣ In disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been illegally
deprived
‣ The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator
results in totally abrogating the will because the nullification of such institution of universal heirs—without any other
testamentary disposition in the will—amounts to a declaration that nothing at all was written.
‣ Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway for inferential interpretation (Nuguid
v. Nuguid). No legacies nor devises having been provided in the will, the whole property of the deceased has been left
by universal title to petitioner and his brothers and sisters.
‣ The effect of annulling the institution of heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74
Phil. 185 [1943]) except that proper legacies and devises must, as already stated above, be respected.
‣ BALANE: To recapitulate, therefore, the correct rule on the effect of preterition: Preterition abrogates the institution of heir
but respects legacies and devises insofar as these do not impair the legitimes. Thus, if the will contains only institutions of
heirs and there is preterition, total intestacy will result; if there are legacies or devises and there is preterition, the legacies
or devises will stand, to the extent of the free portion (merely to be reduced, not set aside, if the legitimes are impaired) but
the institution of heirs, if any, will be swept away.
Article 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not
disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the
shares of the other compulsory heirs. (1080a)
BALANE:
‣ This article is redundant and completely unnecessary if it is, as some believe, made to apply to cases of preterition. If there
is preterition, only Article 854 need be applied: that article is sufficient and self-implementing for cases of preterition. Art.
855 talks about completion of legitime, NOT preterition. The Code Commission meant this provision to apply in cases of
preterition, but if you analyse the provision, it really does not refer to preterition because something is left to the
compulsory heirs
‣ The remedy in this article pertaining to completion for legitime is superfluous. Since this article, properly understood, does
not apply to preterition but to completion of legitime, it is redundant, because the rules and manner of completing
impaired legitimes are laid down with greater detail in Articles 906, 907, 909, 910, and 911.
‣ This article is properly applied in cases where a compulsory heir is not preterited but left something (because not
all the estate is disposed of by will) less than his legitime. Article 855 really talks of a completion of legitime.
‣ BALANE: Art. 855 should not only apply to children and descendants but to ALL compulsory heirs, which includes
the surviving spouse, or parents and ascendants (in default of descendants)
1. From the part of the estate not disposed of by the will, if any
2. Proportionally from the shares of the other compulsory heirs (if there is no estate not disposed of if it is
insufficient)
‣ BALANE:
‣ The remedy is Art. 855 is ERRONEOUS! It will lead to absurd results
‣ Its coverage should extend NOT only to children and descendants, but to all compulsory heirs. As subsequent articles
(906, etc) mandate, any compulsory heir whose legitime is impaired may demand that the same be fully satisfied.
‣ The proportionate reductions (after consuming the undisposed portion) should be borne NOT by the compulsory heirs
as such but by the testamentary heirs, including the devisees and legatees. To make the compulsory heirs qua
compulsory heirs bear the reduction would mean reducing their own legitimes—a patent absurdity.
WHAT SHOULD BE THE CORRECT RULE IN ART. 855? (ACCORDING TO BALANE AND TOLENTINO)
‣ The impaired legitime of the compulsory heir should be completed by taking portions from the following: (in the order of
preference)
1. From the part of the estate not disposed of by the will, if any
2. Proportionally from the shares of the testamentary heirs, devisees or legatees (if there is no estate not disposed
of if it is insufficient)
‣ Note that you can still reduce the share of a compulsory heir whose legitime is not impaired.
‣ TOLENTINO: To harmonize this article with the system of legitimes, and to erase its absurdity, it should perhaps be
rephrased as follows: “The share of the compulsory heir omitted in a will must first be taken from the part of the estate not
disposed of by the will, if any: if that is not sufficient, as much as may be necessary must be taken proportionally from the
shares of the other heirs given to them by will.
‣ BALANE: You should not reduce the legitime of the compulsory heirs, but rather, proportionally reduce the shares of the
testamentary heirs (who may also be compulsory heirs whose legitimate is not impaired, meaning, they get more than
entitled legitime)
Article 856. A voluntary heir who dies before the testator transmits nothing to his heirs.
A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the
inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code. (766a)
BALANE:
‣ Art. 856 is inaccurate and misleading
‣ Because it suggests that there are exceptions to the rule that an heir—in case of predecease, incapacity, or
renunciation— transmits nothing to his own heirs. This rule of non- transmission is absolute; there is no exception to it.
Representation does not constitute an exception, because in representation the person represented does not transmit
anything to his heirs. Representation is rather a form of subrogation
‣ Art. 856 says both too much and too little
‣ Too much—because this article is found in the chapter on testamentary succession (in the section on institution of
heir); thus it should speak only of voluntary or testamentary heirs. Yet the second paragprah speaks of compulsory
succession
‣ Too little—because if it wished to cover the entire gamut of rules on this point, the first paragraph only mentions pre-
decease but does not mention unworthiness of unwillingness to succeed.
‣ Too little—It also does not mention legal or intestate heirs. Neither does it provide for cases of disinheritance.
‣ Art. 856 should be modified to read:
‣ An heir—whether compulsory, voluntary, or legal— transmits nothing to his heirs in case of predecease, incapacity,
renunciation, or disinheritance. However, in case of predecease or incapacity of compulsory or legal heirs, as well as
disinheritance of compulsory heirs, the rules on representation shall apply.
‣ BALANE:
‣ This should not cover merely cases where the testamentary heir pre-deceases the testator, but also cases where he is
incapacitated to succeed (unworthiness) and renounces his inheritance (unwillingness).
‣ PROPER RULE: A VOLUNTARY, COMPULSORY OR LEGAL HEIR WHO DIES BEFORE THE TESTATOR, IS UNWORTHY OR
UNWILLING TO SUCCEED TRANSMITS NOTHING TO HIS HEIRS.
‣ Dead person cannot inherit. Unqualified or unwilling persons also cannot inherit.
‣ This rule on non-transmission is ABSOLUTE. But in certain cases, there may be representation
‣ There may be representation by the heirs of a pre-deceased or incapacitated/unworthy compulsory or legal heirs.
Though there can never be representation in case of unwilling heirs; and never in the case of testamentary heirs
NOTE:
‣ In all cases, there is NO transmission of successional rights to the heir (regardless of the kind of heir or cause)
‣ Representation only applies in Compulsory and Intestate Succession, NEVER in Testamentary Succession
‣ Representation only applies in case of Pre-Decease and Incapacity, NEVER in Renunciation
DEFINITION OF SUBSTITUTION
Article 857. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir
originally instituted. (n)
DEFINITION OF SUBSTITUTION
‣ The definition of substitution in Art. 857 is incomplete because it covers only simple substitution and excludes the
fideicommissary.
‣ In the fideicommissary, the second heir does not succeed in default of the first, but after the first.
‣ BALANE: The complete definition should be “Substitution is the appointment of another heir so that he may enter into
the inheritance in default of, or subsequent to, the heir originally instituted.”
‣ In simple substitutions, the testator simply makes a second choice, in case the first choice does not inherit.
‣ In fideicommissary substitutions, the testator imposes what is essentially a restriction or burden on the first heir, coupled
with a selection of a subsequent recipient of the property.
‣ For fideicommissary substitution, the basis is the testator’s right to impose burdens on his heirs.
KINDS OF SUBSTITUTION
KINDS OF SUBSTITUTION
‣ Art. 858 enumerates four kinds of substitution:
‣ But, in reality, there are only two kinds of substitution: the simple or common (vulgar) and the fideicommissary
(fideicomisaria).
‣ These two are mutually exclusive; i.e., a substitution must be one or the other, and cannot be both at the same time.
‣ The two others enumerated—the brief or compendious and the reciprocal are merely variations
‣ BALANE: The Spanish Code, in addition to the four here enumerated, had two more substitutions (both of which were
eliminated in the present Code): the pupilar and the ejemplar
Article 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or
heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the
preceding paragraph, unless the testator has otherwise provided.
‣ No, if the ground provided for is other than the three mentioned then it becomes a condition
4. In case of renunciation by the first heir, must the substitute have capacity at the time of the renunciation?
‣ Stated differently, supposing the substitute dies before the first heir manifests his renunciation, may the successors of
the substitute acquire the testamentary disposition?
‣ The view that the substitute must have capacity at the time of the renunciation by the first heir finds support in
Article 1034, par. 3
‣ ““If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall
also be considered.”
‣ A simple substitution is a form of conditional institution; therefore, Article 1034, par. 3 can be applied to it.
‣ The opposite view—that the substitute need not have capacity at the time of the renunciation (as when he died
previously)—can be defended by an invocation of Articles 1042 and 533, par. 2:
‣ “Art. 1042. The effects of the acceptance or repudiation of the inheritance shall always retroact to the moment
of the death of the decedent.
‣ “Art. 533. “One who validly renounces an inheritance is deemed never to have possessed the same.”
‣ Will the substitute be disqualified if the cause of the first heir’s predecease is that the substitute killed him?
Article 860. Two or more persons may be substituted for one; and one person for two or more heirs. (778)
‣ BALANE: The majority of commentators, however, make no distinction between the two, and certainly the law uses the
terms interchangeably.
‣ If one is substituted for two or more original heirs, what is the effect of default of one but not all of the original heirs?
‣ Substitution will NOT take place; the share left vacant will accrue to the surviving co-heir or co-heirs.
‣ Substitution will take place only if ALL the original heirs are disqualified.
RECIPROCAL SUBSTITUTION
Article 861. If heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share
of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was
otherwise. If there are more than one substitute, they shall have the same share in the substitution as in the institution.
(779a)
‣ If both are disqualified, then no substitution will take place and the estate will pass by intestacy.
‣ Basically, in reciprocal substitution, the heirs are the substitutes of one another
Article 862. The substitute shall be subject to the same charges and conditions imposed upon the instituted heir, unless
and testator has expressly provided the contrary, or the charges or conditions are personally applicable only to the heir
instituted. (780)
‣ Art. 862 provides that the substitute shall be subject to the same charges and conditions imposed upon the instituted
heir
‣ Unless and testator has expressly provided the contrary, or the charges or conditions are personally applicable only to
the heir instituted.
‣ The rationale for this provision is that the substitute merely takes the place of the original heir.
FIDEICOMMISSARY SUBSTITUTION
Article 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the
obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take
effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further,
that the fiduciary or first heir and the second heir are living at the time of the death of the testator. (781a)
Article 866. The second heir shall acquire a right to the succession from the time of the testator's death, even though he
should die before the fiduciary. The right of the second heir shall pass to his heirs. (784)
2. A second heir (fideicommissary heir) who takes the property subsequently from the fiduciary
3. The second heir must be one degree from the first heir
4. The dual obligation imposed upon the fiduciary to preserve the property and to transmit it after the lapse of the
period to the fideicommissary heir
5. Both heirs must be living and qualified to succeed at the time of the testator’s death.
1. A FIRST HEIR (FIDUCIARY) WHO TAKES THE PROPERTY UPON THE TESTATOR’S DEATH
‣ This is the heir normally instituted to succeed
2. A SECOND HEIR (FIDEICOMMISSARY HEIR) WHO TAKES THE PROPERTY SUBSEQUENTLY FROM THE FIDUCIARY UPON THE
EXPIRATION OF THE TENURE OF THE FIDUCIARY
‣ The fideicommissary heir does not receive the property until the fiduciary’s right expires.
‣ Both heirs enter into the inheritance, one after the other, each in his own turn. This distinguishes the fideicomisaria
from the vulgar, in which the substitute inherits only if the first heir fails to inherit.
‣ Period of the first heir's tenure: Generally, the period indicated by the testator, BUT if the testator did not indicate a
period, then the fiduciary’s lifetime.
‣ Note, however, that, though the fideicommissary heir does not receive the property upon the testator’s death, his
right thereto vests at that time and merely becomes subject to a period, and that right passes to his own heirs
should he die before the fiduciary’s right expires (Article 866)
‣ Only one transmission is allowed, from the first heir to the second heir
3. THE SECOND HEIR MUST BE ONE DEGREE FROM THE FIRST HEIR
‣ The second heir MUST be in the first degree of blood relationship with the first heir (Palacios vs. Ramirez)
‣ As the word “degree” is used in Articles 963, 964 and 966
‣ In other words, must the second heir be either a child or a parent of the first heir
‣ In this case, the testator provided for fideicommisary substitution but the court ruled that such substitution
was VOID because the substitutes are not related to the heir originally instituted.
‣ Art. 863 of the Civil Code validates a fideicommissary substitution “provided such substitution does not go
beyond one degree from the heir originally instituted.”
‣ Manresa, Morell, and Sanchez Roman, however, construe the word ‘degree’ as generation, and the present
Code has obviously followed this interpretation, by proving that the substitution shall not go beyond one
degree ‘from the heir originally instituted.’
‣ The Code thus clearly indicates that the second heir must be related to and be one generation from the
first heir. From this, it follows that the fideicommissary can only be either a child or a parent of the first
heir. These are the only relatives who are one generation or degree from the fiduciary.
‣ If there is no absolute obligation to preserve and transmit, there is NO fideicommisary substitution, BUT the
institution is not necessarily void; it may be valid as some other disposition
‣ PCIB VS. ESCOLIN 56 SCRA 266 (1974)
‣ In this case, the testator instituted her husband to her entire estate as she had no compulsory heirs, along with
the right to manage, control, use enjoy and dispose of such estate; though there were certain properties in
Texas which could not be disposed of. The testator also provided that upon her husband’s death, the
remainder or residue of the estate would pass to her siblings.
‣ Court held that there was no substitution that took place. There was no fideicommissary substitution as there
was no clear obligation on the part of the heir to preserve the properties for a second heir (substitute heirs).
Neither was there simple substitution as none of its causes (predecease, renunciation or incapacity) was
provided for. No simple substitution either because the provision in the will contemplates the death of the
husband after the wife’s death, not before.
‣ Thus, the substitution provision in the will is VOID and in view of the invalidity of the provision for
substitution in the Will, the husband’s inheritance to the entirety of the wife’s estate is irrevocable and final.
‣ There are generally only two kinds of substitution provided for and authorized by our Civil Code (Articles
857-870), namely, (1) simple or common substitution, sometimes referred to as vulgar substitution (Article 859),
and (2) fideicommissary substitution (Article 863). All other substitutions are merely variations of these.
‣ Substitution occurs only when another heir is appointed in a will ‘so that he may enter into inheritance in
default of the heir originally instituted,’ (Article 857) and, in the present case, no such possible default is
contemplated.
‣ The siblings of the testator are not substitutes for the husband because, under her will, they are not to inherit
what the husband cannot, would not or may not inherit, but what he would not dispose of from his inheritance;
rather, therefore, they are also heirs instituted simultaneously with the husband. Such an institution (of the
siblings of the testator) was a simultaneous institution—on the one hand, of the husband subject to a
resolutory condition (which is his death), on the other, of the testator’s siblings subject to a suspensive
condition (the husband’s death); but not a fideicomisaria “because no obligation is imposed thereby
upon Hodges to preserve the estate or any part thereof for anyone else.
‣ BALANE: Just because the substitution is void, does NOT make the institution void. It is merely a different kind
of institution a double institution in this case. The first institution (to the husband) subject to a resolutory
condition (to the siblings), the second institution subject to a suspensive condition
5. BOTH HEIRS MUST BE LIVING AND QUALIFIED TO SUCCEED AT THE TIME OF THE TESTATOR’S DEATH.
‣ Note that this two-fold requirement is to be met only upon the testator’s death, and this applies not only to the
fiduciary but to the second heir as well.
‣ Upon the testator’s death, the second heir already acquires a VESTED right
Article 864. A fideicommissary substitution can never burden the legitime. (782a)
‣ The legitime passes by strict operation of law, therefore the testator has no power over it.
Article 865. Every fideicommissary substitution must be expressly made in order that it may be valid.
The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than those which
arise from legitimate expenses, credits and improvements, save in the case where the testator has provided otherwise.
(783)
‣ The only deductions allowed in the absence of a contrary provision in the will are:
1. Legitimate expenses
2. Credits
3. Improvements
‣ These must pertain to necessary and useful expenses, not ornamental expenses.
Article 866. The second heir shall acquire a right to the succession from the time of the testator's death, even though he
should die before the fiduciary. The right of the second heir shall pass to his heirs. (784)
Article 777. The rights to the succession are transmitted from the moment of the death of the decedent.
Article 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights and
transmitting them to his heirs even before the arrival of the term.
‣ The second heir’s right vests upon the testator’s death, conformably to Article 777 and also to Article 878 (since, as far
as the second heir is concerned, the institution of him is one subject to a suspensive term).
‣ Thus, the second heir does not have to survive the first heir in order for the substitution to be effective. The
second heir’s own heirs simply take his place. His own heirs succeed to the vested right already possessed by the
second heir.
‣ But remember that the second heir must survive the testator, otherwise there would be no institution/substitution
Article 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are
void. (n)
2. PROVISIONS WHICH CONTAIN A PERPETUAL PROHIBITION TO ALIENATE, AND EVEN A TEMPORARY ONE, BEYOND THE LIMIT
FIXED IN ARTICLE 863
‣ In institutions or substitutions, a perpetual prohibition or temporary prohibition (but for more than 20 years) to
alienate the inheritance is ineffective
‣ This is because of public policy
‣ BALANE: If the testator imposes a longer period than 20 years, the period is NOT void, but rather, the prohibition is
valid only for 20 years.
‣ So the disposition is not really void, contrary to what Art. 870 provides
3. THOSE WHICH IMPOSE UPON THE HEIR THE CHARGE OF PAYING, TO VARIOUS PERSONS SUCCESSIVELY, A CERTAIN INCOME OR
PENSION BEYOND THE LIMIT PRESCRIBED IN ARTICLE 863
‣ The testator may provide that the heir is charged with the obligation of paying pension or income to third persons
‣ Conformably to the limits set in Article 863, there can only be two beneficiaries of the pension, one after the
other, and the second must be one degree (of blood relationship) from the first.
‣ In other words, the first and second recipient must be within one degree from each other and it cannot extend
beyond the second recipient.
‣ Example: “I give my entire estate to X and impose upon him the obligation to give a P10,000 pension to Y and in Y's
death, to Y's son."
‣ But if the obligation is to give pension to Y and then in Y’s death, his grandson, then it is ineffective because they
are not within one degree from each other
‣ If the obligation is to give pension to Y and then in Y’s death, his son, then in the son’s death, to Y’s grandson,
then it is also ineffective because there can only be two beneficiaries.
4. THOSE WHICH LEAVE TO A PERSON THE WHOLE OR PART OF THE HEREDITARY PROPERTY IN ORDER THAT HE MAY APPLY OR
INVEST THE SAME ACCORDING TO SECRET INSTRUCTIONS COMMUNICATED TO HIM BY THE TESTATOR
‣ This pertains to “Dummy Provisions” where the testator provides for an ostensible heir or “dummy” for the purpose of
circumventing some prohibition or disqualification.
‣ The ostensible heir here is in reality only a dummy, because, in reality, the person intended to be benefited is the one
to whom the secret instructions refer.
‣ Note that the institution of such ostensible heir or “dummy” makes the institution VOID because there is no intent to
dispose.
‣ BALANE: The practical problem here, however, is the difficulty of establishing the fact of circumvention. Supposing
the ostensible heir conceals or destroys the secret instructions (something fairly easy to do) and claims as heir
under the testamentary provision as worded, what then? It would appear that, in the absence of proof, the
disposition is operative in favor of such ostensible heir.
Article 868. The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs
first designated; the fideicommissary clause shall simply be considered as not written. (786)
‣ Ineffective or inoperative such as if the second heir predeceases the testator or renounces
‣ JUSTICE VITUG: When the fiduciary predeceases or is unable to succeed, the fideicommissary heir takes the inheritance
upon the death of the decedent
‣ BALANE: Vitug, however, does not elaborate. Suffice it to say that there is much to recommend the view that the nullity or
inefficacy of the institution of the fiduciary should not nullify the institution of the fideicommissary heir, but, on the
Article 869. A provision whereby the testator leaves to a person the whole or part of the inheritance, and to another the
usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of
article 863 shall apply. (787a)
‣ BALANE: This is similar to Art. 867, par. 3 on the heir having the obligation of paying pension or income to other persons.
It is NOT a fideicommissary substitution but its rulesand requirements in Art. 863 apply; and by analogy the other
provisions on fideicommissaries can also apply
‣ If the testator institutes successive usufructuaries, there can only be two usufructuaries, one after the other, and, as to the
two of them, all the requisites of Article 863 (on fideicommisary substitutions) must be present.
‣ In other words, if there can only be two successive usufructuaries and they should be within one degree (of blood
relationship) from each other
‣ Note that simultaneous (as distinguished from successive) usufructuaries are allowed and not restricted, the testator
can designate as many usufructuaries as he wants
‣ Also, just as there can be a substitution with regard to the usufruct, there can also be a substitution with regard to the
naked ownership.
‣ Example: "I give to A naked ownership, and to B the usufruct and upon B's death, to his son C.”
Article 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are
void. (n)
‣ BALANE:
‣ This has nothing to do with substitution. It refers to simple institution of heir, devisee or legatee.
‣ This article is a recognition of the testator’s right to prohibit alienation and is also a restriction on the testator’s
testamentary freedom.
‣ It is based on public policy because if the property remains inalienable forever, it will be frozen and will negatively affect
the economy.
‣ If the testator provides for a period of inalienability of his properties, to be transmitted through succession. The
period should NOT be more than twenty years.
‣ What if it is more than twenty years? (Such as if he provides for 40 years, or the heir’s lifetime, which turns out to be
longer than 20 years)
‣ BALANE: The period should be reduced to twenty years. The disposition is NOT void, contrary what Art. 870 says.
This is to respect and give effect to the testator’s intent
‣ BUT remember that in fideicommisary substitutions, the limit is the first heir’s lifetime (Art. 863).
‣ What if the heir who is prohibited from disposing the inheritance sells it?
Article 871. The institution of an heir may be made conditionally, or for a certain purpose or cause. (790a)
Article 885. The designation of the day or time when the effects of the institution of an heir shall commence or cease shall
be valid.
BALANE:
‣ The section heading of section 4 is incomplete as it does not include modal dispositions. The wording of Article 871 is
incomplete as it does not include dispositions with a term, which is in Art. 885
‣ The right of the testator to impose conditions, terms or modes springs from testamentary freedom. If he has the right to
dispose of his estate mortis causa, then he has the right to make the dispositions subject to a condition, term, or mode.
This is the same basis for the right to provide for substitutions.
‣ “Article 1193. Obligations for whose fulfillment a day certain has been fixed, shall be demandable only when that
day comes. xxxxx “A day certain is understood to be that which must necessarily come, although it may not be
known when, xxx”
‣ Difference of a term and condition?
‣ It lies in the certainty of fulfillment. Term pertains to a future certain event, a condition pertains to an uncertain
event (future or past, unknown to the parties).
‣ Art. 871 and 872 pertains to general provisions applicable to all three
‣ Art. 873, 874, 875, 876, 877, 883 (par. 2), 879, 880, 881, 884 pertains to Conditional Dispositions
‣ Art. 878 and 885 pertains to Dispositions with a Term
‣ Art. 882 and 883 (par. 1) pertains to Modal Dispositions
Article 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes prescribed
in this Code. Should he do so, the same shall be considered as not imposed. (813a)
‣ When a testator imposes any of the following upon the legitimes, is considered as NOT imposed:
CONDITIONAL DISPOSITIONS
Impossible Conditions
Art. 873
Illegal Conditions
Condition is VOID
Condition prohibiting a first
marriage
Article 873. Impossible conditions and those contrary to law or good customs shall be considered as not imposed and
shall in no manner prejudice the heir, even if the testator should otherwise provide. (792a)
‣ Note that the rule in donations is the same (Art. 727), only the condition is affected, the disposition remains valid.
‣ This is because testamentary dispositions and donations share a common element, they are both gratuitous and
spring from the grantor’s liberality.
‣ The imposition of a condition does not displace liberality as the basis of the grant.
‣ On the other hand, the rule in obligations is different, in this case, the obligation which depends on the condition is
void.
‣ In obligations which are onerous (Art. 1183), the condition that is imposed becomes an integral part of the causa of
the obligation.
‣ The elimination of that condition for being impossible or illegal results in a failure of cause, which is an essential
element of an obligation.
Article 874. An absolute condition not to contract a first or subsequent marriage shall be considered as not written unless
such condition has been imposed on the widow or widower by the deceased spouse, or by the latter's ascendants or
descendants.
Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised or bequeathed to any
person for the time during which he or she should remain unmarried or in widowhood. (793a)
‣ Such as a condition prohibiting the heir to marry persons other than those of chinese descent.
‣ The condition is considered as not imposed, thus the disposition is absolute and unconditional
2. IF A CONDITION PROHIBITS A SUBSEQUENT MARRIAGE, ITS EFFECTIVITY DEPENDS ON WHO THE TESTATOR IS
a. Imposed by the deceased spouse, or by his/her ascendants or descendants: VALID
i. Deceased spouse
‣ Example: “I give my entire estate to my husband on the condition that if I predecease him, he will not get
married.”
‣ Example: “I give 1/3 of my estate to A on the condition that if he should be widowed, he will not get married.”
3. THE TESTATOR STILL HAS A MEANS OF TERMINATING THE TESTAMENTARY BENEFACTION SHOULD THE HEIR CONTRACT
MARRIAGE (EVEN A FIRST ONE)
‣ See second paragraph of Art. 874: “Nevertheless, the right of usufruct, or an allowance or some personal prestation
may be devised or bequeathed to any person for the time during which he or she should remain unmarried or in
widowhood.”
‣ The wording of the disposition will be crucial; it should not be so worded as to constitute a prohibition forbidden
in the first paragraph.
‣ The pensions which has been received prior to the heir’s marriage is NOT forfeited.
‣ BALANE: The purpose of this is to help the heir out while he/she is unmarried.
‣ Example: "I give A a pension of P10,000 during the entire time she is single.”
LEGACY-HUNTING DISPOSITIONS
Article 875. Any disposition made upon the condition that the heir shall make some provision in his will in favor of the
testator or of any other person shall be void. (794a)
1. It converts testamentary grants into contractual transactions because the consideration becomes onerous rather
than gratuitous.
2. It deprives or restricts the heir of testamentary freedom because there is a pressure to make a will.
3. It gives the testator the power to dispose mortis causa not only of his property but also of his heir’s
Article 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon as he learns of the
testator's death.
This rule shall not apply when the condition, already complied with, cannot be fulfilled again. (795a)
Article 877. If the condition is casual or mixed, it shall be sufficient if it happen or be fulfilled at any time before or after
the death of the testator, unless he has provided otherwise.
Should it have existed or should it have been fulfilled at the time the will was executed and the testator was unaware
thereof, it shall be deemed as complied with.
If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such a nature that it can no
longer exist or be complied with again. (796)
Article 883. If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the
condition shall be deemed to have been complied with. (798a)
Article 879. If the potestative condition imposed upon the heir is negative, or consists in not doing or not giving
something, he shall comply by giving a security that he will not do or give that which has been prohibited by the testator,
and that in case of contravention he will return whatever he may have received, together with its fruits and interests.
(800a)
Article 884. Conditions imposed by the testator upon the heirs shall be governed by the rules established for conditional
obligations in all matters not provided for by this Section. (791a)
1. Potestative condition
‣ One that depends solely on the will of the heir/devisee/legatee
2. Casual condition
‣ One that depends on the will of a third person or on chance
3. Mixed condition
‣ One that depends partly on the will of the heir/devisee/legatee and partly either on the will of a third person or
chance.
‣ If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the
condition shall be deemed to have been complied with (Art. 883)
‣ EXCEPTIONS:
i. The condition was already complied with at the time the heir learns of the testator’s death, and
‣ Heir must give security to guarantee (caucion Muciana) the return of the value of property, fruits, and interests, in
case of contravention.
‣ Note that this is the first of three instances where a caucion Muciana is required. The other two: Art. 885, par. 2
and 882
‣ But note the following qualifications if already fulfilled at the time of execution of will:
a. If casual
‣ Not applicable
b. If mixed
i. If dependent partly on chance
‣ Not applicable
‣ NOTE: Articles 1179-1192, on conditional obligations apply suppletorily to conditional institutions (Art. 884)
Article 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed under administration
until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled, or until the arrival of the term.
The same shall be done if the heir does not give the security required in the preceding article. (801a)
Article 881. The appointment of the administrator of the estate mentioned in the preceding article, as well as the manner
of the administration and the rights and obligations of the administrator shall be governed by the Rules of Court. (804a)
a. If condition happens
‣ The property will be turned over to the instituted heir.
Article 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights and
transmitting them to his heirs even before the arrival of the term. (799a)
‣ In dispositions with a term, the heir’s right vests upon the testator’s death, conformably to Article 777.
‣ Therefore, should the heir die before the arrival of the (suspensive) term, he merely transmits his right to his own heirs who
can demand the property when the term arrives.
‣ In conditional institutions, what is the rule if the instituted heir dies before the happening of the condition?
‣ In conditional institutions, the heir should be living and qualified to succeed both at the time of the testator’s death
and at the time of the happening of the condition.
Article 885. The designation of the day or time when the effects of the institution of an heir shall commence or cease shall
be valid.
In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration.
But in the first case he shall not enter into possession of the property until after having given sufficient security, with the
intervention of the instituted heir. (805)
‣ A cauccion Muciana has to be posted by them. (This is the second instance where a caucidn Muciana has to be
posted.)
2. Resolutory Term
‣ Before the arrival of the term, the property should be delivered to the instituted heir.
MODAL DISPOSITIONS
Article 882. The statement of the object of the institution, or the application of the property left by the testator, or the
charge imposed by him, shall not be considered as a condition unless it appears that such was his intention.
That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security
for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits
and interests, if he or they should disregard this obligation. (797a)
‣ In fact, modes could very well have been absorbed in the concept of resolutory conditions.
‣ Note that a cauccion Muciana should be posted by the Instituted heir (the third instance of Caucidn Muciana).
‣ In this case, the testatrix did not make the devisee’s inheritance and the effectivity of his institution as a devisee,
dependent on the performance of the said obligation. It is clear, though, that should the obligation be not complied
with, the property shall be turned over to the testatrix’s near descendants. The manner of institution of the devisee
under subject Codicil is evidently modal in nature because it imposes a charge upon the instituted heir without,
however, affecting the efficacy of such institution.
‣ Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should
not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator.
In case of doubt, the institution should be considered as modal and not conditional.
WHEN AN INSTITUTION CANNOT TAKE EFFECT IN THE EXACT MANNER STATED BY THE
TESTATOR
Article 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the
exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his
wishes.
‣ The intention of the testator should always be the guiding norm in determining the sufficiency of the analogous
performance.
SECTION 5: LEGITIME
DEFINITION OF LEGITIME
Article 886. Legitime is that part of the testator's property which he cannot dispose of because the law has reserved it for
certain heirs who are, therefore, called compulsory heirs. (806)
SYSTEM OF LEGITIMES
‣ Our successional system, closely patterned after that of the Spanish Code, reserves a portion of the net estate of the
decedent in favor of certain heirs, or groups of heirs, or combination of heirs.
1. Partial Reservation: a certain portion set aside for the compulsory heirs
‣ But there are a lot of variations depending on which country. The Philippine system is based on the Spanish
system
‣ But there may be reservation for support of minor children (but this is not really succession)
NATURE OF LEGITIMES
‣ LEGITIME IS THAT PART OF THE TESTATOR'S PROPERTY WHICH HE CANNOT DISPOSE OF GRATUITOUSLY.
‣ The legitimes are set aside by mandate of the law. Thus, the testator is required to set aside or reserve them.
‣ The legitime does NOT pertain to any specific property its pertains to a “value” or “fraction” of the testator’s estate
‣ Because the testator is compelled to set aside the legitimes, the heirs in whose favor the legitimes are set aside are
called compulsory heirs.
‣ BALANE: The term is wrong as it gives the impression that the heirs are compelled. It was originally called “forced
heirs”, but this term is also erroneous also because it gives the impression that the heirs are forced to succeed.
Both terms are wrong, why did you change a wrong term with another wrong term? Hmmph!
‣ Remember the three kinds of succession, compulsory, testamentary and intestate succession.
‣ Compulsory succession pertains to succession of the legitime. It takes precedence and prevails over the other kinds
of succession.
‣ Dispositions by onerous title are NOT prohibited or covered because, in theory, nothing is lost from the estate in an
onerous disposition, since there is merely an exchange or substitution of values.
‣ When the disposition is for valuable consideration, there is no diminution of the estate but merely a substitution of
values, that is, the property sold is replaced by the equivalent monetary consideration
‣ But this is on the assumption that the sale is genuine and not simulated.
‣ Presumption that the sale is genuine, the burden is on the opponents of the sale to prove that it was relatively simulated
and that it was really a donation. (Calalang-Parulan vs Calalang-Garcia 2014)
COMPULSORY HEIRS
FAMILY CODE
Article 176. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for
this modification, all other provisions in the Civil Code governing successional rights shall remain in force. (287a)
This list is EXCLUSIVE, but numbers 4 and 5 has been repealed by Art. 176 of the Family Code.
‣ TUMBOKON VS LEGASPI, G.R. NO. 153736, AUGUST 12, 2010
‣ A decedent’s compulsory heirs in whose favor the law reserves a part of the decedent’s estate are exclusively the
persons enumerated in Article 887,
3. Surviving Spouse
They preferred over, and They receive legitimes only in They succeed as compulsory heirs together with the primary or
exclude, the secondary default of the primary secondary. They live in harmony, with primary and secondary
compulsory heirs and with each other.
Descendants Ascendants
1. LEGITIMATE CHILDREN
‣ The following are considered “legitimate” children (Articles 54, 164, 179 of the Family Code)
a. Children conceived OR born during the marriage of the parents are legitimate.
c. Adopted Children (in relation to their adopter, (Secs. 17 & 18, R.A. 8552 [Domestic Adoption Act of 1998])
e. Children conceived or born before the judgment of absolute nullity of the marriage under Article 36 of the Family
Code (Psychological Incapacity)
f. Children conceived or born of the subsequent marriage under Article 53 of the Family Code (in relation to Art. 52)
‣ The law does not specify how the legitimate children should share in the legitime. There is universal agreement,
however, that they will share equally, regardless of age, sex, or marriage of origin.
2. LEGITIMATE DESCENDANTS
‣ Such as the grandchild or great-grandchild of the decedent
‣ BUT, the qualification to this rule is representation (succession per stripes) for legitimate descendants, when
proper.
‣ Note also that only “legitimate” descendants can represent legitimate children.
‣ The rule is different in the case of illegitimate children, who can be represented by both legitimate and
illegitimate descendants.
3. LEGITIMATE PARENTS
‣ The rule for legitimate parents, is that, they are only excluded (from being compulsory heirs), by “legitimate” children/
descendants.
‣ The rule is different for illegitimate parents who are excluded by both legitimate and illegitimate children/
descendants
‣ Note that the adopter has, in relation to the adopted, the same successional right as legitimate parents.
‣ Under present law (Sec. 18, R.A. 8552), the adopter displaces the biological parents in the successional scheme
relative to the estate of the adopted.
‣ In the same way that certain rights still attach by virtue of the blood relation, so too should certain
obligations, which, We rule, include the exercise of parental authority, in the event of the untimely
passing of their minor offspring’s adoptive parent.
‣ We cannot leave undetermined the fate of a minor child whose second chance at a better life under the care of
the adoptive parents was snatched from him by death’s cruel grasp. Otherwise, the adopted child’s quality of
life might have been better off not being adopted at all if he would only find himself orphaned in the end. Thus,
We hold that the adopter’s death at the time of the adopted’s minority resulted in the restoration of the
biological parent’s parental authority over the adopted child.
‣ BUT — This case was decided under the rules prior to the Domestic Adoption Act. Now such law governs and
it provides that adoption terminates the relationship of the biological parents and the adopted. No rights remain.
4. LEGITIMATE ASCENDANTS
‣ Such as grandparents or great-grandparents
‣ The rule that they are excluded by “legitimate” children/descendants also applies.
‣ Again, the rule that the nearer exclude the more remote applies
‣ Note that this rule is absolute in the ascending line, it is NOT qualified by representation (unlike in the case of
legitimate descendants)
5. SURVIVING SPOUSE
‣ The person to whom the decedent is legally married.
‣ The surviving spouse referred to here is the spouse of the decedent, NOT the spouse of a child who has predeceased
the decedent.
‣ Court that she is NOT a compulsory heir, neither in her own right, nor by right of representation. There is
no provision in the Civil Code which states that a widow (surviving spouse) is an intestate heir of her
mother-in-law.
‣ Intestate or legal heirs are classified into two (2) groups, namely, those who:
‣ Re- stated, an intestate heir can only inherit either by his own right, as in the order of intestate succession
provided for in the Civil Case, or by the right of representation provided for in Article 981
‣ The entire Code is devoid of any provision which entitles her to inherit from her mother-in-law either by her
right or by the right of representation.
‣ The provisions of the Code which relate to the order of intestate succession (Articles 978 to 1014) enumerate
with meticulous exactitude the intestate heirs of a decedent, with the State as the final intestate heir. The
conspicuous absence of a provision which makes a daughter-in-law an intestate heir of the deceased all the
more confirms our observation. If the legislature intended to make the surviving spouse an intestate heir of
the parent-in-law, it would have so provided in the Code.
‣ In annulment, the heirs cannot attack the marriage since collateral attack is not allowed in voidable
marriages.
‣ In nullity, direct attack is allowed only in the lifetime of the spouses, collateral attack is allowed though
‣ Check this, this is only what I remembered in Persons nung 1st year
‣ CARINO VS. CARINO (351 SCRA 127 [2001])
‣ “ Under article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.
Meaning, where the absolute nullity of a previous marriage is sought to be invoked for purposes of
contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free from
legal infirmity, is a final judgment declaring the previous marriage void.
‣ However, for purposes other than remarriage, NO judicial action is necessary to declare a marriage an
absolute nullity (judicial declaration NOT required). For other purposes, such as but not limited to the
determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property
regime, or a criminal case for that matter, the court may pass upon the validity of marriage even after the
death of the parties thereto, and even in a suit not directly instituted to question the validity of said marriage
(Indirect Attack), so long as it is essential to the determination of the case.
‣ BALANE: This is a punitive effect of a decree of legal separation, against the offending spouse.
‣ Death of either spouse during the pendency of a petition for legal separation— dismissal of the case, the
offending spouse will inherit in this case.
‣ BALANE: It doesn’t matter who dies before the decree of legal separation is issued (during the pendency), the
spouses are capacitated to succeed each other in this case, as the legal separation proceedings cannot
continue (under the family code). The action cannot continue just to adjudicate the incidental effects of legal
separation
‣ LAPUZ VS. EUFEMIO 43 SCRA 177 (1972)
‣ The wife (Carmen Lapuz Sy) filed a petition for legal separation against the husband (Eufemio Eufemio) based
on the abandonment by the latter, and that the fact that he was cohabiting with another chinese woman.
Before, the trial could be completed, the wife died due to a vehicular accident. Thus, the husband moved for
the dismissal of the legal separation proceedings, this was granted by the lower court.
‣ Issue was, does the death of the plaintiff before final decree, in an action for legal separation, abate the
action? If it does, will abatement also apply if the action involves property rights?
‣ Court held that the death of EITHER spouse abates the action because an action for legal separation
is purely personal.
‣ An action for legal separation which involves nothing more than the bed-and-board separation of the
spouses (there being no absolute divorce in this juris- diction) is purely personal.
‣ The Civil Code recognizes this in its Article 100, by allowing only the innocent spouse (and no one else) to
claim legal separation; and in its Article 108, by providing that the spouses can, by their reconciliation, stop
or abate the proceedings and even rescind a decree of legal separation already rendered.
‣ Being personal in character, it follows that the death of one party to the action causes the death of the
action itself
‣ A review of the resulting changes in property relations between spouses shows that they are solely the
effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it occurs
prior to the decree.
‣ Art. 106. “The decree of legal separation shall have the following effects: (4) The offending spouse shall be
disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor
of the offending spouse made in the will of the innocent one shall be revoked by operation of law.”
‣ From this article it is apparent that the disqualification of the offending spouse to inherit by intestacy from
the innocent spouse as well as the revocation of testamentary provisions in favor of the offending spouse
made by the innocent one, are all rights and disabilities that, by the very terms of the Civil Code article, are
‣ A further reason why an action for legal separation is abated by the death of the plaintiff, even if property
rights are Involved, is that these rights are mere effects of a decree of separation, their source being the
decree itself; without the decree such rights do not come into existence, so that before the finality of a
decree, these claims are merely rights in expectation. If death supervenes during the pendency of the
action, no decree can be forthcoming, death producing a more radical and definitive separation; and the
expected consequential rights and claims would necessarily remain unborn.
‣ Note that this case pertained to legal separation under the Civil Code, but the rule is the same under the
Family Code
‣ But note that If after the final decree of legal separation there was a reconciliation between the spouses, the
reciprocal right to succeed is restored (because reconciliation sets aside the final decree) (Article 66, par. 2,
Family Code).
c. Spouse in a terminated subsequent marriage must NOT be in bad faith in contracting such subsequent
marriage
‣ This pertains to a case of subsequent marriage contracted by a party whose spouse has been absent for the
specified period and then the subsequent termination of such subsequent marriage by reappearance of prior
the spouse (Articles 41-43 of the Family Code)
‣ Note that the reappearance of the prior spouse terminates the second marriage.
‣ One of the effects of such termination is that the spouse who contracted the subsequent marriage in bad faith
(had knowledge that the absent spouse was still living) shall be disqualified to inherit from the innocent spouse
by testate and intestate succession
‣ The clear implication of this article is that (1) if both consorts in the second marriage were in good faith, they
continue to be heirs of each other, and (2) if only one of said consorts acted in bad faith, the innocent one will
continue to be an heir of the other.
d. Mere estrangement is not a ground for the disqualification of the surviving spouse as heir.
6. ILLEGITIMATE CHILDREN
‣ The Family Code has abolished the distinction between natural and spurious children and gives all of them—
indiscriminately called illegitimate children simply—equal legitimary portions (Article 176, Family Code).
‣ However, pursuant to Article 777, if death occurred before the effectivity of the Family Code on 3 August 1988, the
old distinctions will apply and the spurious child gets only 4/5 the share of the natural (Article 895).
‣ Children conceived AND born outside a valid marriage are illegitimate, unless otherwise provided (Art. 165, Family
Code)
‣ EXCEPT, the following are legitimate:
a. Those legitimated
c. Born into a void marriage under Art. 36 or Art. 52/53, before the final judicial declaration of nullity
d. Adopted children
7. ILLEGITIMATE DESCENDANTS
‣ The same rule applies here as in the legitimate descending line: the nearer exclude the more remote, without prejudice
to representation when proper.
‣ Note that the illegitimate child can be represented by both legitimate and illegitimate descendants, as distinguished
from the legitimate child, who can be represented only by legitimate descendants.
8. ILLEGITIMATE PARENTS
‣ Unlike the legitimate ascending line, which includes ascendants of whatever degree, the illegitimate ascending line
includes only parents; it does not go beyond the parents.
‣ Note that the illegitimate parents are secondary heirs of a lower category than legitimate parents, because the
illegitimate parents are excluded by legitimate and illegitimate children (Article 903) whereas legitimate parents are
excluded only by legitimate children/descendants.
‣ Consequently, the variations of the portions assigned as legitime can be bewildering, depending as they do on the given
combination.
‣ But generally, there is a basic quota of one-half (1/2) that is given to one heir or one group of heirs.
‣ EXCEPTION:
1. Surviving spouse and illegitimate children (Art. 894)
2. Surviving spouse in a marriage in articulo mortis, with the conditions specified in that article (Art. 900, par. 2)
3. Legitimate Parents *But, 1/3 only in the case of a surviving spouse and the marriage, being in Art. 889
articulo mortis falling under Art. 900, par. 2
4. Illegitimate Children Art. 901
6. One Legitimate Child a. Legitimate Child: 1/2 of the estate Art. 892, par. 1
and Surviving Spouse
b. Surviving Spouse: 1/4 of the estate
7. Legitimate Children a. Legitimate Children: 1/2 of the estate Art. 892, par. 2
and Surviving Spouse
b. Surviving Spouse: Share equal to that of one child
8. Legitimate Children a. Legitimate Children: 1/2 of the estate Art. 176, Family Code
and Illegitimate Children
b. Illegitimate Children: Each will get 1/2 of share of one legitimate child
10. Legitimate Children, a. Legitimate Children: 1/2 of the estate Art. 895
Illegitimate Children, and
Surviving Spouse b. Illegitimate Children: Each will get 1/2 of share of one legitimate child
11. Legitimate Parents a. Legitimate Parents: 1/2 of the estate Art. 896
and Illegitimate Children
b. Illegitimate Children: 1/4 of the estate
12. Legitimate Parents a. Legitimate Parents: 1/2 of the estate Art. 893
and Surviving Spouse
b. Surviving Spouse: 1/4 of the estate
13. Legitimate Parents, a. Legitimate Parents: 1/2 of the estate Art. 899
Illegitimate Children, and
Surviving Spouse b. Illegitimate Children: 1/4 of the estate
14. Surviving Spouse a. Surviving Spouse: 1/3 of the estate Art. 894
and Illegitimate Children
b. Illegitimate Children: 1/3 of the estate
15. Surviving Spouse a. Surviving Spouse: 1/4 of the estate Art. 903
and Illegitimate Parents
b. Illegitimate Parents: 1/4 of the estate
Article 888. The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father
and of the mother.
The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving
spouse as hereinafter provided. (808a)
2. EQUAL SHARING
‣ The legitimate children share the one-half in equal parts, regardless of age, sex, or marriage of origin.
‣ BALANE: The provision should have been explicit about this, rather than leaving it to implication and assumption. The
counterpart provision in intestacy is quite explicit on this. Before, only men inherit, particularly the eldest child, women
cannot inherit. This is the principle of “primogeniture” as prevalent in medieval europe where the firstborn male inherits
the family estate.
3. THE NEARER EXCLUDE THE MORE REMOTE, QUALIFIED BY REPRESENTATION, WHEN PROPER
‣ The general rule is that the nearer exclude the more remote.
‣ Hence, grandchildren cannot inherit, since the children will bar them, unless all the children renounce, in which case
the grandchildren become the nearest in degree.
‣ The rule goes on down the line; great-grandchildren cannot inherit unless all the children and grand- children
renounce.
‣ The only qualification to the rule that the nearer exclude the more remote in the descending line is representation
when proper (Art. 970-977)
‣ BALANE: Remember that there is no representation in renouncement, the grandchildren cannot inherit when their
parents (the children of the decedent), merely renounce, unless ALL the children renounce, in which case the
grandchildren inherit in their own right, not by representation
4. THERE IS NO LIMIT TO THE NUMBER OF DEGREES IN THE DESCENDING LINE THAT MAY BE CALLED TO SUCCEED, WHETHER IN
THEIR OWN RIGHT OR BY REPRESENTATION.
Article 889. The legitime of legitimate parents or ascendants consists of one-half of the hereditary estates of their children
and descendants.
The children or descendants may freely dispose of the other half, subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided. (809a)
Article 890. The legitime reserved for the legitimate parents shall be divided between them equally; if one of the parents
should have died, the whole shall pass to the survivor.
If the testator leaves neither father nor mother, but is survived by ascendants of equal degree of the paternal and
maternal lines, the legitime shall be divided equally between both lines. If the ascendants should be of different degrees,
it shall pertain entirely to the ones nearest in degree of either line. (810)
2. THE LEGITIMATE ASCENDING LINE SUCCEEDS ONLY IN DEFAULT OF THE LEGITIMATE DESCENDING LINE
‣ The Legitimate parents/ascendants are secondary compulsory heirs, they will succeed in default of legitimate
children/descendants.
‣ Note that can only be disqualified by legitimate children/descendants. Even if the decedent has a surviving spouse
and/or illegitimate children/descendants, they are still compulsory heirs.
‣ The legitime shall then be divided in equal parts between the paternal line and the maternal line.
‣ After the portion corresponding to the line has been assigned, there will be equal apportionment between or among
the recipients within the line, should there be more than one.
‣ Example: “Should X (the decedent) die without legitimate descendants and be survived by three grandparents as his
nearest ascendants—A and B (paternal grandparents) and C (maternal grandmother-the legitime of 1/2 will be divided
equally between the paternal and the maternal line (Rule B, supra). Since there are two heirs in the paternal line, the
paternal line portion will be shared equally by the two; and since there is only one in the maternal line, she gets the
entire allotment for the maternal line.
‣ Result: A and B get 1/8 each of the estate; C gets 1/4 of the estate.
Article 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to
one- fourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased
who had given cause for the same.
If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the
legitime of each of the legitimate children or descendants.
In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the
testator. (834a)
Article 897. When the widow or widower survives with legitimate children or descendants, and acknowledged natural
children, or natural children by legal fiction, such surviving spouse shall be entitled to a portion equal to the legitime of
each of the legitimate children which must be taken from that part of the estate which the testator can freely dispose of.
(n)
b. Two or more legitimate children or descendants: Spouse gets a portion equal to the legitime of “each” of the
legitimate children or descendants
‣ As long as at least one of several children inherits in his own right, the determination of the share of the surviving
spouse presents no problem. It will always be the equivalent of one child’s share.
‣ BALANE: But, supposing all the children predecease (or are disinherited or unworthy to succeed), since all the
grandchildren would then inherit per stirpes (by representation), and therefore in different amounts, the practical
solution will still be to give the spouse the share that each child would have gotten if qualified. Supposing, however,
all the children renounce, the grandchildren would then inherit per capita, and therefore equally. Should the
Article 893. If the testator leaves no legitimate descendants, but leaves legitimate ascendants, the surviving spouse shall
have a right to one-fourth of the hereditary estate.
This fourth shall be taken from the free portion of the estate. (836a)
‣ Legitimate ascendants/surviving spouse—The sharing is 1/2 for the ascendants collectively and 1 /4 for the surviving
spouse.
‣ Remember that tor the parents or ascendants, the sharing will be in accordance with the rules laid down in Articles
889-890
Article 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of the hereditary
estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of
the testator. (n)
‣ If the decedent died before the effectivity of the Family Code, the old distinction must be observed, and the legitime of
a spurious child will only be 4/5 that of a natural child, according to the ratio established in Article 895, par. 2.
‣ This ratio of 5:4 among natural and spurious children should be observed in all cases under the Civil Code where they
concur.
Article 895. The legitime of each of the acknowledged natural children and each of the natural children by legal fiction
shall consist of one-half of the legitime of each of the legitimate children or descendants.
The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child by legal fiction, shall be
equal in every case to four-fifths of the legitime of an acknowledged natural child.
The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator,
provided that in no case shall the total legitime of such illegitimate children exceed that free portion, and that the legitime
of the surviving spouse must first be fully satisfied. (840a)
Article 898. If the widow or widower survives with legitimate children or descendants, and with illegitimate children other
than acknowledged natural, or natural children by legal fiction, the share of the surviving spouse shall be the same as that
provided in the preceding article. (n)
FAMILY CODE
Art. 163. The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate. (n)
Art. 165. Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code. (n)
Art. 176. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this
modification, all other provisions in the Civil Code governing successional rights shall remain in force. (287a)
Art. 895 has been pro tanto amended by Articles 163, 165 and 176 of the Family Code.
3. SHARING OF THE ILLEGITIMATE CHILDREN PRIOR TO FAMILY CODE (IF THE DECEDENT DIED PRIOR TO THE EFFECTIVITY OF
THE FAMILY CODE)
‣ Art. 895 article will govern; consequently, should natural and spurious children concur in the succession, each
spurious child will get 4/5 the share of one natural child, and each natural child gets 1/2 the share of one legitimate
child.
‣ Should there be no natural children but only spurious children, each spurious child will get 2/5 the share of one
legitimate child.
4. PRO-RATA REDUCTION OF SHARES OF THE ILLEGITIMATE CHILDREN, IN CASE THE TOTAL PORTIONS EXCEED THE ENTIRE ESTATE
‣ Depending on the number of legitimate and illegitimate children, the possibility exists that the total legitimes will
exceed the entire estate.
‣ Reductions, therefore, will have to be made in accordance with the following rules:
a. The legitimes of the legitimate children should never be reduced; they are primary and preferred compulsory
heirs.
b. The legitime of the surviving spouse should never be reduced; this article prohibits this.
c. The legitimes of the illegitimate children will be reduced pro rata and without preference among them.
Article 896. Illegitimate children who may survive with legitimate parents or ascendants of the deceased shall be entitled
to one- fourth of the hereditary estate to be taken from the portion at the free disposal of the testator. (841a)
‣ The sharing is 1/2 for the legitimate parents collectively and 1/4 for the illegitimate children collectively.
Article 899. When the widow or widower survives with legitimate parents or ascendants and with illegitimate children,
such surviving spouse shall be entitled to one-eighth of the hereditary estate of the deceased which must be taken from
the free portion, and the illegitimate children shall be entitled to one-fourth of the estate which shall be taken also from
the disposable portion. The testator may freely dispose of the remaining one-eighth of the estate. (n)
‣ The sharing is 1/2 for the legitimate parents collectively, 1/4 for the illegitimate children collectively, and 1/8 for the
surviving spouse.
Article 900. If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of
the deceased spouse, and the testator may freely dispose of the other half. (837a)
If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died
within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be one-third
of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter
case, the legitime of the surviving spouse shall be that specified in the preceding paragraph. (n)
RULES ON THE LEGITIME OF THE SURVIVING SPOUSE (AS SOLE COMPULSORY HEIR)
‣ RULE: THE SURVIVING SPOUSE WILL GET 1/2 OF THE ESTATE, IF SHE IS THE SOLE COMPULSORY HEIR
‣ EXCEPTION: IN CASE THE MARRIAGE CONTRACTED IN ARTICULO MORTIS (AT THE POINT OF DEATH) AND THE FOLLOWING
REQUISITES ARE PRESENT, THE SURVIVING SPOUSE WILL ONLY GET 1/3 OF THE ESTATE
2. The testator died within three months from the time of the marriage;
3. The parties did not cohabit for more than five years; and
4. The spouse who died was the party in articulo mortis at the time of the marriage
‣ BALANE: The decedent must be the one in articulo mortis, it would be absurd if the decedent was the healthy
spouse. This is not provided in Art. 900 but is implied, obviously the law does not regard such marriages with
eager approbation.
Article 901. When the testator dies leaving illegitimate children and no other compulsory heirs, such illegitimate children
shall have a right to one-half of the hereditary estate of the deceased.
The other half shall be at the free disposal of the testator.
Article 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their
descendants, whether legitimate or illegitimate. (843a)
‣ In the case of descendants of legitimate children, the right of representation is given only to legitimate
descendants (not to illegitimate), by virtue of the provisions of Art. 992
Article 903. The legitime of the parents who have an illegitimate child, when such child leaves neither legitimate
descendants, nor a surviving spouse, nor illegitimate children, is one-half of the hereditary estate of such illegitimate
child. If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever. If only the
widow or widower survives with parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary
estate of the child, and that of the surviving spouse also one-fourth of the estate. (n)
RULES ON THE LEGITIME OF ILLEGITIMATE PARENTS (AS SOLE COMPULSORY HEIRS) OR WITH SURVIVING SPOUSE
1. LLEGITIMATE PARENTS ALONE—THEY GET 1/2 OF THE ESTATE.
‣ Note that in the illegitimate ascending line, the right does NOT go beyond the parents (illegitimate ascendants are not
compulsory heirs)
2. ILLEGITIMATE PARENTS/SURVIVING SPOUSE—THE SHARING IS 1 /4 FOR THE PARENTS COLLECTIVELY AND 1 /4 FOR THE
SPOUSE.
‣ Whereas legitimate parents are excluded only by legitimate children, illegitimate parents are excluded by all kinds
of children, legitimate or illegitimate.
RESERVA TRONCAL
Article 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 from
which said property came. (871)
‣ The Spanish Code contained two reservas: the viudal (also called the ordinaria because it was the older reserva) and the
troncal (also called the extraordinaria because it was a more recent addition). More, there was a reversion (the legal) in the
same Code. Add to that the reversion in adoption (the adoptiva) found in Sec. 1 of Act 3977 and incorporated in the Rules
of Court of 1940, and we had in our law just prior to the present Civil Code, two reservas and two reversiones:
1. Reserva viudal (Article 968, Spanish Code)
4. Reversion adoptiva (Act 3977 and incorporated in Rule 100, Section 5, Rules of Court of 1940)
‣ Reserva: Property set aside for a group of people who are the relatives of the person from whom it came
‣ The draft Code submitted to Congress in 1948 had abolished all these four but the legislature decided to retain the
reserva troncal.
‣ BALANE: All of the four were supposed to be abolished in the New Civil Code, but there was this congressman from
Romblon who pushed for the revival of the reserva troncal at the last minute.
PURPOSE
‣ The purpose of the principle was to provide a means to bring back property back to within the family line from there it
came, which has left because of marriage.
‣ It is marriage (of outside the line) that makes it possible for the property to drift away from the line where it came
‣ It has its roots in medieval and feudal times which was incorporated in the Philippines by the Spaniards.
‣ The reserva troncal is a special rule designed primarily to assure the return of the reservable property to the third degree
relatives belonging to the line from which the property originally came, and to avoid its being dissipated by the relatives of
the inheriting ascendant
‣ The purpose is also to avoid the danger that property existing for many years in a family’s patrimony might pass
gratuitously to outsiders through the accident of marriage and untimely death.
‣ It is to prevent outsiders from acquiring, through an accident of life, property which, but for such accident, would have
remained in the family.
‣ BALANE: One’s interpretation on the purpose of the reserva has consequences (as will be discussed later) on the
interpretation of issues pertaining to it. These two view have different consequences in several debatable issues.
‣ MANRESA: Purpose of the reserva is BOTH curative and preventive. To bring back property to the line from where it
came or to prevent the property from leaving the line from where it came
‣ JBL REYES: Purpose of the reserve is PURELY curative.
‣ The following requisites must be present in order for Art. 891 to apply:
1. THAT THE PROPERTY WAS ACQUIRED BY A PERSON FROM AN ASCENDANT OR FROM A BROTHER OR SISTER BY
GRATUITOUS TITLE
‣ The person receiving (by donation or succession) need not necessarily be a descendant, since the grantor is not
necessarily an ascendant, he may be a sibling
‣ Acquisition should be by gratuitous title when “the recipient does not give anything in return”.
‣ It encompasses transmissions by donation (pure or simple, not onerous) or by succession (of whatever kind).
‣ Note that only legitimate descendants will prevent the property from being inherited by the legitimate
ascending line by operation of law. Thus, the said descendant, may have a child, an illegitimate one, and the
ascendants can still inherit by operation of law
b. Intestate Succession
‣ The ascendant here must be “another/other” ascendant, other than the origin.
‣ What are the cases where the other ascendant will inherit by operation of law, from his descendant?
a. Descendant has NO legitimate children/descendants
‣ This covers cases where the descendant has a surviving spouse and/or illegitimate children/descendants
(because in these cases, the ascendant is still entitled to a legitime because only legitimate descendants
will prevent the property from being inherited by the legitimate ascending line by operation of law. )
2. Second transfer—by operation of law, from the transferee in the first transfer to another ascendant. (It is this second
transfer that creates the reserva)
3. Third transfer—from the transferee in the second transfer to the relatives (reservatarios)
‣ SOLIVIO VS. COURT OF APPEALS 182 SCRA 119 (1990)
‣ Subject properties involved here was owned by Salustia Solivio, a widower, who had a child, Esteban Javellana, Jr.
When the mother died, her only son inherited her properties consisting mostly of lands in Iloilo. The son later died a
bachelor, without descendants, brothers, sisters, nephews or nieces. His only relatives are his maternal aunt
Celedonia (half-sister of his mother) and Concordia (sister of his deceased father). During his lifetime, Esteban, Jr. had,
more than once, expressed to his aunt Celedonia and some close friends his plan to place his estate in a foundation
to honor his mother and to help poor but deserving students obtain a college education. Unfortunately, he died of
heart attack before he could set up such foundation. Two weeks after his funeral, Concordia and Celedonia talked
about what to do with Esteban’s properties. Celedonia told Concordia about Esteban’s desire to place his estate in a
foundation to be named after his mother, from whom his properties came, for the purpose of helping indigent students
in their schooling. Concordia agreed to carry out the plan of the deceased. Pursuant to their agreement that Celedonia
would take care of the proceedings leading to the formation of the foundation, she was declared the sole heir by the
court. Thereafter, she sold properties of the estate to pay the taxes and other obligations of the de- ceased and
proceeded to set up the foundation. Concordia later filed a petition to also be recognized as an heir of Esteban
(maybe she changed her mind?). This was granted, the trial court ordered the execution of its judgment pending
appeal and required Celedonia to submit an inventory and accounting of the estate. Caledonia refused, saying that the
properties have been transferred to the foundation.
‣ The issue was whether the decedent’s properties were subject to reserva troncal in favor of Celedonia, his relative
within the third degree on his mother’s side from whom he had inherited them.
‣ Court ruled that there reserve troncal does NOT apply in this case. It does not apply to property inherited by a
descendant from his ascendant
‣ The property of the deceased, Esteban is not reservable property, for he was not an ascendant, but the
descendant of his mother, from whom he inherited the properties in question. Therefore, he did not hold his
inheritance subject to a reservation in favor of his aunt, Celedonia Solivio, who is his relative within the third
degree on his mother’s side. The reserva troncal applies to properties inherited by an ascendant from a
descendant who inherited it from another ascendant or a brother or sister.
‣ BALANE: In this case, there can be no reserva troncal as the second transmission was not from a descendant to an
ascendant, the properties passed to the person’s aunts. The third requisite (that the property is inherited by another
ascendant by operation of law) is absent.
a. Ascendant
‣ May be of any degree of ascent
‣ Debatable, but it seems the view of Manresa that reserva applies to BOTH full and half blood siblings is
better
‣ MANRESA: It does not matter whether the fraternal relationship is of the full-or the half-blood. In either case
a reserva may arise. Since the law makes no distinction, we should not make one. Reserva is NOT just
preventive but curative, it should apply to both full and half-blood as to prevent the property form leaving
the line
‣ JBL REYES: it must be half-blood, since if it is full-blood, there is no line, the line is both paternal and
maternal, the property does not leave the line in this case. The property must leave the line, for reserva to
apply, since the purpose of the reserva is to bring back property to the line from which it came, thus, if the
origin is a sibling, he or she must be of half-blood, for the property to leave the line. Reserva is merely
curative in nature.
2. PREPOSITUS
‣ The first transferee, who is a descendant or brother/sister of the Origin
‣ He is the descendant who received by gratuitous title and who later dies without issue, making his other ascendant
inherit by operation of law.
‣ While the property is still with the Prepositus there is as yet no reserva. The reserva arises only upon the second
transfer (to the reservista).
‣ Consequently, while the property is owned by the prepositus, he has all the rights of ownership over it and may
exercise such rights in order to prevent a reserva from arising. He can do this in several ways, such as:
c. By partitioning in such a way as to assign the property to parties other than the potential reservista
‣ He is thus the “arbiter” of the reserva troncal
3. RESERVISTA (RESERVOR)
‣ He is an ascendant of the Prepositus, of whatever degree, who inherits by operation of law property from his such
descendant
‣ The Reservista must be an ascendant other than the Origin/Mediate Source (if the latter is also an ascendant, as he
could be a sibling)
‣ The law is clear on this: it refers to the Origin/Mediate Source as another ascendant. If these two parties are the
same person, there would be no reserva troncal.
‣ Should the Origin/Mediate Source and the Reservista belong to different/opposite lines?
‣ Debatable, but the better view is, NO, they need not belong to different lines, since the law does not distinguish.
‣ MANRESA: No, reserva can apply regardless if they belong to same or opposite lines since the law does not
distinguish. The purpose of the reserva is not merely curative but also preventive.
‣ JBL REYES: Yes, because if they belong in both lines, the property cannot leave the line, thus, there is no
reason for reserva to apply. Reserva is purely curative.
‣ How can this happen in the first place? remember that the origin need not be the father or mother, of the
prepositus he just needs to be an ascendant (or a sibling) thus, he can be a grandfather or grandmother and there
could be mixing of lines
‣ Example: A receives by donation a parcel of land from his paternal grandfather X. Upon A’s death, the parcel
passes by intestacy to his father Y (X’s son). The property never left the line. Is Y obliged to reserve?
‣ Requirements to be a reservatario:
a. HE MUST BE WITHIN THE THIRD DEGREE (OF CONSANGUINITY) FROM THE PREPOSITUS
‣ BALANE: The law does not say it is third degree from the prepositus, but this is the correct rule as supported by
all civilists unanimously
b. HE MUST BELONG TO THE LINE FROM WHICH THE PROPERTY CAME. (THIS IS DETERMINED BY THE ORIGIN/MEDIATE
SOURCE)
i. If origin is an ascendant
‣ If, however, it is a brother or sister of the full blood, it would not be possible to distinguish the lines. Thus, in
this case the question of which line is immaterial, all relatives within the third degree, irrespective of lines
is a reservatario (as supported by Manresa)
‣ This is an exception to the general rule that the reservatario must belong to the line from which the
property came, in this case, the question of line is immaterial, those within the third degree from the
prepositus are all reservatarias (according to Manresa). But if you would follow JBL Reyes, there would
be no reserva, as the property never left the line in case of full-blood siblings.
c. HE MUST BE RELATED BY BLOOD TO THE ORIGIN OR MEDIATE SOURCE
‣ This is implied. The reservatario must be related by blood to the origin (according to Sanchez-Roman)
2. Nephews or nieces
‣ These are the only relatives within the third degree of the Prepositus
‣ BALANE: If reserva troncal applies and the descendant (prepositus) has legitimate children, but they all renounce or
are incapacitated to inherit, such that the property will pass to the ascendant (reservista), are the descendants who
have renounced or are incapacitated inherit considered reservatarios? (note that they are obviously relatives within
the third degree from the prepositus) In other words, can the descendant son, or even grandson of the prepositus,
now become a reservatario in this case?
‣ To be qualified as a reservatario, is it necessary that one must already be living when the Prepositus dies?
‣ NO, they are not required to be alive when the prepositus dies BUT they must be living with the Reservista dies
‣ BALANE:
‣ NOT required, because as Manresa points out: ‘The reserva is established in favor of a group or class: the
relatives within the third degree, not in favor of specific individuals. As long, therefore, as the reservatario is
alive at the time of the reservista’s death, he qualifies as such, even if he was conceived and born after the
Prepositus’ death.
‣ The reservatarios do not “strictly” succeed or inherit from the prepositus, it is a kind of delayed succession.
This is despite the fact that some cases say that the reservatarios inherits (the reserved property) from the
prepositus (not the reservista). They do not “strictly” inherit from the prepositus because they are not
required to be alive at the time the prepositus dies. The reservatarios do not inherit from the prepositus
directly because one requirement of the capacity to succeed is that the heir should be alive when the
decedent dies (Art. 1025). They are inheriting by virtue of the special rule of the reserva troncal. The correct
way to say it, is that the reservatarios “as if” or “by analogy” suceeds from the prepositus like ordinary heirs.
‣ BALANE: According to the Padura case, in the reserva, it is “as if “the reservatarios inherit from the prepositus by
intestacy, thus, by analogy, the following principles apply to the reservatarios:
1. PROXIMITY IN DEGREE: Those reservatarios nearer in degree of relationship to the Prepositus will exclude
those more remotely related
2. RIGHT OF REPRESENTATION: Heirs of the reservatarios has the right of representation in the proper cases
3. RULE ON DOUBLE SHARE: Those whole blood brothers and nephews are entitled to a share double that of
brothers and nephews of half blood.
‣ PADURA VS. BALDOVINO GR NO. 11960, DECEMBER 27, 1958
‣ The stated purpose of the reserva is accomplished once the property has devolved to the specified relatives of
the line of origin. But from this time on, there is no further occasion for its application.
‣ In the relations between one reservatario and another of the same degree, there is no call for applying
Art. 891 any longer; wherefore, the respective share of each in the reversionary property should be
governed by the ordinary rules of intestate succession.
‣ In this spirit the jurisprudence of this Court and that of Spain has resolved that upon the death of the
ascendant reservista, the reservable property should pass, not to all the reservatorios as a class, but only to
those nearest in degree to the descendant (prepositus), excluding those reservatarios of more remote degree.
And within the third degree of relationship from the descendant (prepositus), the right of representation
operates in favor of nephews
‣ Proximity of degree and right of representation are basic principles of ordinary intestate succession; so
is the rule that whole blood brothers and nephews are entitled to a share double that of brothers and
nephews of half blood.
‣ If in determining the rights of the reservatarios inter se, proximity of degree and the right of representation of
nephews are made to apply, the rule of double share for immediate collaterals, of the whole blood should
be likewise operative.
‣ In other words, the reserva troncal merely determines the group of relatives (reservatarios) to whom the
property should be returned; but within that group the individual right to the property should be decided
by the applicable rules of ordinary intestate succession, since Art. 891 does not specify otherwise.
‣ This conclusion is strengthened by the circumstance that the reserva being an exceptional case, its
application should be limited to what is strictly needed to accomplish the purpose of the law.
‣ The restrictive interpretation is the more imperative in view of the new Civil Code’s hostility to successional
reservas and reversions, as exemplified by the suppression of the reserva viudal and the reversion legal of the
Code of 1889
‣ Even during the reservista’s lifetime, the reservatarios, who are the ultimate acquirers of the property, can
already assert the right to prevent the reservista from doing anything that might frustrate their reversionary
right; and for this purpose they can compel the annotation of their right in the Registry of Property even while
the reservista is alive. This right is incompatible with the mere expectancy that corresponds to the natural heirs
of the reservista. It is likewise clear that the reservable property is no part of the estate of the reservista, who
may not dispose of them by will, so long as there are reservatarios existing. The latter, therefore, do not inherit
from the reservista, but from the descendant prepositus, of whom the reservatarios are the heirs mortis causa,
subject of the condition that they must survive the reservista.
‣ Had the nephews of whole and half-blood succeeded the prepositus directly, those of full-blood
would undoubtedly receive a double share compared to those of the half blood, why then should the
latter receive equal shares simply because the transmission of the property was delayed by the
interregnum of the reserva? The decedent (causante) the heirs and their relationship being the same,
there is no cogent reason why the hereditary portions should vary.
‣ BALANE: Actually, there will be only one instance of representation among the reservatarios, a case of the
Prepositus being survived by brothers/sisters and children of a predeceased or incapacitated brother/sister.
‣ FLORENTINO VS. FLORENTINO 40 PHIL. 480 (1919)
‣ Issue was whether reserva troncal applies such that the plaintiffs are entitled to their share
‣ Court held that reserva troncal applies and that the plaintiffs are entitled to their share as they are
relatives of the prepositus within the third degree. Some (3 plaintiffs) are his relatives within the third
degree in their own right and some (12 plaintiffs) are such by representation, all of them are indisputably
entitled as reservatarios to the property. The reservista, has no right to choose, which of the
reservatarios should inherit.
‣ Following the order prescribed by law in legitimate succession, when there are relatives of the descendant
within the third degree, the right of the nearest relative, called reservatario, over the property which the
reservista (person holding it subject to reservation) should return to him, excludes that of the one more
remote. The right of representation cannot be alleged when the one claiming same as a reservatario of the
reservable property is not among the relatives within the third degree belonging to the line from which such
property came, inasmuch as the right granted by the Civil Code in Article 811 is in the highest degree
personal and for the exclusive benefit of designated persons who are the relatives, within the third degree,
of the person from whom the reservable property came. Therefore, relatives of the fourth and the
succeeding degrees can never be considered as reservatarios, since the law does not recognize them as
such.
‣ In spite of what has been said relative to the right of representation on the part of one alleging his right as
reservatario, who is not within the third degree of relationship, nevertheless there is right of
representation on the part of reservatarios who are within the third degree mentioned by law, as in
the case of nephews of the deceased person from whom the reservable property came. These
reservatarios have the right to represent their ascendants (fathers and mothers) who are the brothers
of the said deceased person and relatives within the third degree in accordance with Article 811 of
the Civil Code.
‣ According to the provisions of law, ascendants do not inherit the reservable property, but its enjoyment, use
or trust, merely for the reason that said law imposes the obligation to reserve and preserve same for certain
designated persons who, on the death of the said ascendants-reservists, (taking into consideration the
nature of the line from which such property came) acquire the ownership of said property in fact and by
operation of law in the same manner as forced heirs (because they are also such)—said property reverts to
said line as long as the aforementioned persons who, from the death of the ascendant-reservists, acquire in
fact the right of reservatarios (persons for whom property is reserved), and are relatives, within the third
degree, of the descendant from whom the reservable property came.
‣ Any ascendant who inherits from his descendant any properly, while there are living, within the third degree,
relatives of the latter, is nothing but a life usufructuary or a fiduciary of the reservable property received. He
is, however, the legitimate owner of his own property which is not reservable property and which
constitutes his legitime, according to Article 809 of the Civil Code. But if, afterwards, all of the relatives,
within the third degree, of the descendant (from whom came the reservable property) die or disappear, the
said property becomes free property, by operation of law, and is thereby converted into the legitime of the
ascendant heir who can transmit it at his death to his legitimate successors or testamentary heirs. This
property has now lost its nature of reservable property, pertaining thereto at the death of the relatives,
called reservatarios, who belonged within the third degree to the line from which such property came.
‣ Reservable property neither comes, nor falls under, the absolute dominion of the ascendant who inherits
and receives same from his descendant, there- fore it does not form part of his own property nor
become the legitime of his forced heirs. It becomes his own property only in case that all the relatives of
his own descendant shall have died (reservista), in which case said reservable property losses such
character.
‣ While it is true that by giving the reservable property to only one reservee it did not pass into the
hands of strangers, nevertheless, it is likewise true that the heiress of the reservor was only one of
the reservees and there is no reason founded upon law and justice why the other reservees should
be deprived of their shares in the reservable property
‣ Issue in this case asks the question, what are the rights of the reservista in the reserved property?
‣ Court held that the reservista absolute ownership over the reserved property (right to use, enjoy, dispose
and recover it). But such right is subject to a resolutory condition that, in the event, that such reservista
dies, and there are still reservatarios who are still living, then the properies would be given to them
‣ There are not lacking writers who say, only those of a usufructuary, the ultimate title belonging to the persons in
whose favor the reservation is made. If that were so, the person holding the property could not apply for
registration of title, but the person In whose favor it must be reserved, with the former’s consent. This opinion
does NOT seem to be admissible
‣ The ascendant who inherits from a descendant, whether by the latter's wish or by operation of law, acquires
the inheritance by virtue of a title perfectly transferring absolute ownership. All the attributes of the right
of ownership belong to him exclusively—use, enjoyment, disposal and recovery.
‣ This absolute ownership which is inherent in the hereditary title, is not altered in the least, if there be no
relatives within the third degree in the line whence the property proceeds or they die before the ascendant heir
who is the possessor and absolute owner of the property.
‣ If there should be relatives within the third degree who belong to the line whence the property proceeded, then
a limitation to that absolute ownership would arise. The nature and scope of this limitation must be determined
with exactness in order not to vitiate rights that the law wishes to be effective.
‣ The opinion which makes this limitation consist in reducing the ascendant heir to the condition of a mere
usufructuary, depriving him of the right of disposal and recovery, does not seem to have support in the law, as
it does have, according to the opinion that has been expressed in speaking of the rights of the father or mother
who has married again.
‣ The conclusion is that the person required by Article 811 to reserve the right has, beyond any doubt at
all, the rights of use and usufruct. He has, moreover, for the reasons set forth, the legal title and do-
minion, although under a condition subsequent (resolutory condition).
‣ Clearly he has, under an express provision of the law, the right to dispose of the property reserved, and to
dispose of is to alienate, although under a condition.
‣ He has the right to recover it, because he is the one who possesses or should possess it and have tide to it,
although a limited and revocable one.
‣ In a word, the legal title and dominion, even though under a condition, reside in him while he lives. After the
right required by law to be reserved has been assured, he can do anything that a genuine owner can do.
‣ On the other hand, the relatives within the third degree in whose favor the right is reserved (the
reservatarios) cannot dispose of the property, first because it is in no way, either actually, constructively
or formally, in their possession; and, moreover, because they have no title of ownership or of fee simple
which they can transmit to another, on the hypothesis that only when the person who must reserve the right
should die before them will they take their place in the succession of the descendant of whom they are
relatives within the third degree, that is to say, a second contingent place in said legitimate succession in the
fashion of aspirants to a possible future legacy.
‣ If any of the persons in whose favor the right is reserved should, after their right has been assured in the
registry, dare to dispose of even nothing more than the fee simple of the property to be reserved his act
would be null and void, for, it is impossible to determine the part “that might pertain therein to the relative at
the time he exercised the right, because in view of the nature and scope of the right required by law to be
reserved the extent of his right cannot be foreseen, for it may disappear by his dying before the person
required to reserve it, just as it may even become absolute should that person die.
‣ To prevent persons outside a family from securing, by some special accident of life, property that would
otherwise have remained therein.
‣ Issue was the validity of the sales entered into by the reservista and the reservatarios.
‣ Court held that both sales were valid but both were subject to conditions; a resolutory condition in the case
of the sale by the reservista and a suspensive condition in the case of the reservatarios
‣ The reserva creates two resolutory conditions (against the reservista), namely:
2. The survival, at the time of his death, of relatives within the third degree belonging to the line from which
the property came
‣ The reservista has the legal title and dominion to the reservable property but subject to a resolutory condition;
that he is like a life usufructuary of the reservable property but subject to the reservation, said alienation
transmitting only the revocable and conditional ownership of the reservista, the rights acquired by the
transferee being revoked or resolved by the survival of reservatarios at the time of the death of the reservista
‣ The sale made by Andrea in favor of third persons was, therefore, subject to the condition that the vendees
would definitely acquire ownership, by virtue of the alienation, only if the vendor died without being survived by
any person entitled to the reservable property. Inasmuch as when Andrea died, the reservatarios were still alive,
the conclusion becomes inescapable that the previous sale made by the former in favor of third persons
became of no legal effect and the reservable property subject matter thereof passed in exclusive ownership to
the reservatarios.
‣ On the other hand, it is also clear that the sale executed by the reservatarios in favor of third persons was
subject to a similar resolutory condition (a suspensive condition, really). The reserva instituted by law in favor of
the heirs within the third degree belonging to the line from which the reservable property came, constitutes a
real right which the reservee may alienate and dispose of, albeit conditionally, the condition being that the
alienation shall transfer ownership to the vendee only if and when the reservee survives the person obliged to
reserve
‣ In this case, one of the reservatarios, was still alive when Andrea, the person obliged to reserve, died. Thus the
former became the absolute owner of the reservable property upon Andrea’s death.
‣ The issue was, whether the disputed properties are reservable properties under Article 891, and whether Filomena
Legarda could dispose of them in her will in favor of her grandchildren to the exclusion of her six children.
‣ In other words, whether Mrs. Legarda as reservor, could convey the reservable properties by will of mortis
causa to the reservees within the third degree (her sixteen grandchildren) to the exclusion of the reservees in
the second degree, her three daughters and three sons.
‣ Court held that reserva troncal applies in this case as the requisites of Art. 891 are present. Mrs. Legarda
could NOT convey in her holographic will to her sixteen grandchildren the reservable properties because
the reservable properties did NOT form part of her estate. The reservor cannot make a disposition mortis
causa of the reservable properties as long as the reservees survived the reservor.
‣ As repeatedly held in the Cano and Padura cases, the reservees inherit the reservable properties from the
prepositus, not from the reservor. The reservees are the heirs mortis causa subject to the condition that they
must survive the reservor
‣ Article 891 clearly indicates that the reservable properties should be inherited by all the nearest relatives within
the third degree from the prepositus who in this case are the six children of Mrs. Legarda. She could not
select the reservees to whom the reservable property should be given and deprive the other reservees
of their share therein.
‣ Because the Rules on Intestacy (particularly the rules of proximity of degree, the nearer exclude the more
remote) apply, once the application of the reserva troncal
‣ To allow the reservor in this case to make a testamentary disposition of the reservable properties in favor of the
reservees in the third degree and, consequently, to ignore the reservees in the second degree would be a
glaring violation of Article 891. That testamentary disposition cannot be allowed.
‣ Reservable property left, through a will or otherwise, by the death of ascendant (reservista) together with his
own property in favor of another of his descendants as forced heir, forms no part of the latter’s lawful
inheritance nor of the legitime, for the reason that, as said properly continued to be reservable, the heir
receiving the same as an inheritance from his ascendant has the strict obligation of its delivery to the relatives,
within the third degree, or the predecessor in interest (prepositus), without prejudicing the right of the heir to an
aliquot part of the property, if he has at the same time the right of a reservatario
‣ BALANE:
‣ The reservatarios do not really inherit from the prepositus, because they are not required to be alive
when the prepositus dies (note that this is a requirement in capacity to succeed in Art. 1025). They only
inherit from the prepositus “in a manner of speaking”. They really inherit by virtue of the special rule of
the reserva troncal.
‣ The rule in this jurisdiction, therefore, is that, upon the reservista’s death, the property passes by strict operation
of law (according to the rules of intestate succession, declared in the Padura case), to the proper reservatarios.
Thus, the selection of which reservatarios will get the property is made by law and not by the reservista. The
reservista has no power to appoint, by will, which reservatarios will get the reserved property
‣ In one case, a sugar quota allotment (incorporeal property) was held to be reservable.
2. THE VERY SAME PROPERTY MUST GO THROUGH THE PROCESS OF TRANSMISSIONS IN ORDER FOR THE RESERVA TO ARISE
‣ Remember that there are 3 transmissions involved
‣ If the Prepositus substitutes the property by selling, bartering, or exchanging it, the substitute cannot be reserved.
‣ Note that while the property is with the Prepositus, there is yet no reserva, which commences only when the
property is received by the reservista.
‣ Consequently, the Prepositus has, over the property, plenary powers of ownership, and he may exercise these
powers to thwart a potential reserva.
‣ Remember that the Prepositus is the arbiter of the reserva
3. THE RESERVED PROPERTY IS NOT PART OF THE RESERVISTA’S ESTATE UPON HIS DEATH
‣ Unless there are no reservatarios
‣ Court affirmed the decision of the lower court and held that a separate proceeding to determine the
existence of the reserva tranquil is NOT required, and may be established in the registration proceedings.
The reserved property is NOT part of the estate of the reservista, and does not even answer for the debts of
the latter. Hence, its acquisition by the reservatario may be entered in the property records without
necessity of estate proceedings, since the basic requisites therefor appear of record. It is equally well
settled that the reservable property can not be transmitted by a reservista to her or his own successors
mortis causa, so long as a reservatario within the third degree from the prepositus and belonging to the line
where the property came, is in existence when the reservista dies.
‣ The requisites for the application of the reserva troncal have already been declared to exist by the decree of
registration wherein the rights of the reservatario troncal were expressly recognized
‣ The contention that an intestacy proceeding is still necessary rests upon the assumption that the reservatario
will succeed in, or inherit, the reservable property from the reservista. This is not true.
‣ The reservatario is not the reservista's successor mortis causa nor is the reservable property part of the
reservista's estate; the reservatario receives the property as a conditional heir of the descendant (prepositus),
said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during
the reservista’s lifetime.
‣ The authorities are all agreed that there being reservatarios that survive the reservista the latter must be
deemed to have enjoyed no more than a life interest in the reservable property.
‣ It is a consequence of these principles that upon the death of the reservista, the reservatario nearest to the
prepositus, becomes, automatically and by operation of law, the owner of the reservable property.
‣ BALANE: The Cano ruling is perfectly consistent with the principle that the reserved property, upon the reservista’a
death, passes to the reservatarios by strict operation of law. It may be stated, relevantly, that as a consequence of
the rule laid down in Cano, since the reserved property is not computed as part of the reservista’s estate, it is not
taken into account in determining the legitimes of the reservista’s compulsory heirs. It thus partakes the nature of
an encumbrance or burden on the legitimate of the compulsory heirs of the reservista (a burden imposed by law)
1. The Prepositus acquires property by gratuitous title from the origin or mediate source
2. The Prepositus has other properties of his own (which he did not acquire from the mediate source)
3. The Prepositus makes a will instituting the ascendant-reservista, as a compulsory heir, to a part of his estate
4. There is a mixture of properties left in the Prepositus’ estate (from mediate source and those of his own),
which will pass to the ascendant-reservista by operation of law
‣ Thus, the properties will pass to the reservista by will and by operation of law
‣ Example:
a. The indemnity for any deterioration of or damage to the property occasioned by the reservista’s fault or
negligence, and
b. The payment of the value of such reserved movables as may have been alienated by the reservista onerously
or gratuitously.
‣ BALANE: The abolition of the reserva viudal has caused some uncertainty whether these requirements still apply. The case
of Sumaya v. IAC, 201 SCRA 178 (1991), provides some help. It states that the requirement of annotation remains, despite
the abolition of the reserva viudal.
‣ Sumaya: ““The jurisprudential rule requiring annotation in the Registry of Property of the right reserved In real property
subject of reserva viudal insofar as it is applied to reserva troncal stays despite the abolition of reserva viudal in the
New Civil Code”
‣ Sumaya, however, is silent on two points: 1) within what period must the annotation be made; and 2) whether the other
requirements of the old viudal also remain.
DECEDENT CANNOT DEPRIVE THE COMPULSORY HEIRS OF, OR BURDEN THE LEGITIME
Article 904. The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly specified by law.
Neither can he impose upon the same any burden, encumbrance, condition, or substitution of any kind whatsoever. (813a)
Article 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes prescribed
in this Code. Should he do so, the same shall be considered as not imposed.
Article 1080. A parent who, in the Interest of his or her family, desires to keep any agricultural, industrial, or manufacturing
enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other
children to whom the property is not assigned, be paid in cash.
Article 1083. Every co-heir has a right to demand the division of the estate unless the testator should have ex- pressly
forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in Article 494. This
power of the testator to prohibit division applies to the legitimate
FAMILY CODE
Article 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the
family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same
unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or
constituted the family home.
‣ The legitime is NOT within the testator's control. It passes to the compulsory heirs by strict operation of law.
‣ This rule, first enunciated in Art. 872 and reiterated in the second paragraph of this Art. 904, is but a consequence of
the principle that the legitime passes by strict operation of law.
‣ EXCEPTION: IN AT LEAST TWO INSTANCES, THE LAW GRANTS THE TESTATOR SOME POWER OVER THE LEGITIME, OVER ITS
FORM, NOT VALUE:
1. Testator can provide that it is to be paid in cash, if he is a parent who, in the interest of his or her family, desires to
keep any agricultural, industrial, or manufacturing enterprise intact (Art. 1080)
2. Testator can prove that the legitime cannot be partitioned or divided, for a maximum of 20 years (Art. 1083)
‣ BALANE: In these two cases, the legitime is NOT impaired, it is merely subjected to a burden
1. Family home cannot be partitioned unless there are compelling reasons (Art. 159 of the Family Code)
‣ BALANE: This is not an impairment of the legitime, merely a burden imposed by law
2. The reserva troncal (Art. 891)
‣ BALANE: This is a case where the legitime can be impaired and it is provided for by law. The law itself has provided
for the legitime and it can take it away.
RENUNCIATION AND COMPROMISE OF FUTURE LEGITIME BETWEEN THE DECEDENT AND HIS
COMPULSORY HEIR
Article 905. Every renunciation or compromise as regards a future legitime between the person owing it and his
compulsory heirs is void, and the latter may claim the same upon the death of the former; but they must bring to collation
whatever they may have received by virtue of the renunciation or compromise. (816)
Art. 1347. No contract may be entered into upon future inheritance except in cases expressly authorized by law
‣ Before the predecessor’s death, the heir’s right is simply inchoate (Art. 777).
‣ Note that as worded, this article applies only to transactions of compromise or renunciation between the predecessor
and the prospective compulsory heir.
‣ Is a transaction between the prospective compulsory heir and another prospective compulsory heir, or between a pro-
spective compulsory heir and a stranger, prohibited?
‣ Yes, by Art. 1347. A contract involving future inheritance is void, regardless of who the parties are.
DUTY OF COLLATION
‣ Any property which the compulsory heir may have gratuitously received from the decedent by virtue of the renunciation or
compromise must be brought to collation
‣ Such donation will considered an advance on his legitime and must be duly credited.
Article 908. To determine the legitime, the value of the property left at the death of the testator shall be considered,
deducting all debts and charges, which shall not include those imposed in the will.
To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to
collation, at the time he made them. (818a)
‣ Art. 908 makes possible the computation of the absolute amounts of the legitimes by laying down the manner of
computing the net value of the estate (the net hereditary estate), on which the proportions are based.
‣ BALANE: Without Art. 908, you would not know the specific amounts each compulsory heir will get, while the previous
articles define their legitime, meaning the portion of the estate they are entitled to, such amount is based on the net
hereditary estate. You must first determine this amount, before you can get the specific amount of their legitime.
‣ Note that these assets include only those properties that survive the decedent, those which are not extinguished by
his death.
‣ In other words, only non-personal assets (in relation to Art. 774 and 777)
‣ All unpaid obligations of the decedent should be deducted from the gross assets.
‣ Note that it involves the same rule with assets, only those obligations with monetary value which are not extinguished
by death are considered here.
‣ Thus, those obligations which are purely personal (intuitu personae) are not taken into account
‣ The donations inter vivos shall be valued as of the time they were respectively made.
‣ Any increase or decrease in value from the time they were made to the time of the decedent’s death shall be for
the donee’s account, since donation transfers ownership to the donee.
‣ Collation is only required of compulsory heirs succeeding with other compulsory heirs and involves property or
rights received by donation or gratuitous title during the lifetime of the decedent.
‣ The purpose is to attain equality among the compulsory heirs in so far as possible for it is presumed that the
intention of the testator or predecessor in interest in making a donation or gratuitous transfer to a forced heir is
to give him something in advance on account of his share in the estate, and that the predecessor’s will is to
treat all his heirs equally, in the absence of any expression to the contrary.
‣ Collation does not impose any lien on the property or the subject matter of collationable donation. What is
brought to collation is not the property donated itself, but rather the value of such property at the time it was
donated, the rationale being that the donation is a real alienation which conveys ownership upon its
acceptance, hence any increase in value or any deterioration or loss thereof is for the account of the heir or
donee.
‣ Collation covers only properties gratuitously given by the decedent during his lifetime to his compulsory
heirs
Article 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may
demand that the same be fully satisfied. (815)
Article 905. Every renunciation or compromise as regards a future legitime between the person owing it and his
compulsory heirs is void, and the latter may claim the same upon the death of the former; but they must bring to collation
whatever they may have received by virtue of the renunciation or compromise. (816)
Article 909. Donations given to children shall be charged to their legitime. (819a)
Article 910. Donations which an illegitimate child may have received during the lifetime of his father or mother, shall be
charged to his legitime. (847a)
Article 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not
disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the
shares of the other compulsory heirs. (1080a)
Article 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly provided, or if
the donee should repudiate the inheritance, unless the donation should be reduced as inofficious. (1036)
Article 1063. Property left by will is not deemed subject to collation, if the testator has not otherwise provided, but the
legitime shall in any case remain unimpaired. (1037)
‣ How do you determine if it has been satisfied? Know which dispositions or transfers to the compulsory heir are
considered part of the legitime first.
‣ The following received by the compulsory heirs from the decedent, are considered part of their legitime
1. PROPERTY RECEIVED BY INTESTATE SUCCESSION
‣ The legitime is first satisfied from the portion of the estate not disposed of by will.
‣ See Art. 855, this applies if the title by which the testator transmitted property is intestate succession
‣ Donations inter vivos to a compulsory heir shall be imputed to his legitime. They are considered as an advance
on his legitime.
‣ This rule applies to ALL compulsory heirs.
‣ Note that these two articles omit, inadvertently, ascendants who succeed as compulsory heirs. This rule
applies to them as well.
‣ For obvious reasons (because spouses cannot donate to each other), this rule has no application to a surviving
spouse, except in cases of donations propter nuptias and moderate gifts under Article 87 of the Family Code
‣ EXCEPTION: This rule of imputation to the legitime will not apply if the donor provided otherwise (Art. 1062), in
which case the donation will be imputed to the disposable portion of the estate
‣ He is person who is not a compulsory heir, who may be a sibling, cousin, or a total stranger
‣ Donations inter vivos to strangers are necessarily imputed to the free or disposable portion.
‣ The compulsory heir has the remedy of filing an action for completion or satisfaction of his legitime (Art. 906)
‣ Art. 907 and 911 implements and provides the procedure for satisfying such legitime
Article 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on
petition of the same, insofar as they may be inofficious or excessive. (817)
Article 911. After the legitime has been determined in accordance with the three preceding articles, the reduction shall be
made as follows:
(1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary, the devises
or legacies made in the will;
(2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever.
If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer any
reduction until the latter have been applied in full to the payment of the legitime.
(3) If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than that of the
disposable portion, the compulsory heirs may choose between complying with the testamentary provision and
delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose. (820a)
Article 773. If, there being two or more donations, the disposable portion is not sufficient to cover all of them, those of the
more recent date shall be suppressed or reduced with regard to the excess. (656)
Article 912. If the devise subject to reduction should consist of real property, which cannot be conveniently divided, it
shall go to the devisee if the reduction does not absorb one-half of its value; and in a contrary case, to the compulsory
heirs; but the former and the latter shall reimburse each other in cash for what respectively belongs to them.
The devisee who is entitled to a legitime may retain the entire property, provided its value does not exceed that of the
disposable portion and of the share pertaining to him as legitime. (821)
Article 913. If the heirs or devisees do not choose to avail themselves of the right granted by the preceding article, any
heir or devisee who did not have such right may exercise it; should the latter not make use of it, the property shall be sold
at public auction at the instance of any one of the interested parties. (822)
TESTAMENTARY DISPOSITIONS THAT IMPAIR THE LEGITIME; REMEDY OF REDUCTION (ART. 907)
‣ Normally the legitime is impaired because the testamentary dispositions exceed the free and disposable portion
‣ Art. 907 provides the remedy in this case, it provides that testamentary dispositions that impair or diminish the
legitime of the compulsory heirs shall be REDUCED on petition of the same, insofar as they may be inofficious or
excessive
‣ Art. 907 is based on the same principle expressed in Art. 904, that the testator cannot deprive the compulsory heirs of
their legitime
‣ To allow the testator to make testamentary dispositions that impair the legitime would in effect allow him to deprive
the compulsory heirs of part of their legitime
‣ If the testamentary dispositions exceed the disposable portion, the compulsory heirs may demand their reduction to the
extent that the legitimes have been impaired.
‣ Art. 911 implements the principle laid down in Arts. 872, 886, and 904—the inviolability of the legitime. Thus if the
legitimes are impaired, the gratuitous dispositions of the testator (either inter vivos or mortis causa) have to be set
aside or reduced as may be required to cover the legitimes.
‣ It gives an order of priorities to be observed in the reduction of the testator’s gratuitous dispositions
‣ These reductions shall be to the extent required to complete the legitimes, even if in the process the disposition is
reduced to nothing.
‣ Non-preferred means that the testator did not provide for preference
‣ The last step is to reduce the donations inter vivos made to strangers
‣ Because donations inter vivos made to compulsory heirs are considered advances on their legitimate
‣ The deduction is NOT pro-rata, but according to the inverse order of their dates, meaning you reduce the most
recent first. (Art. 773)
‣ BALANE: The last donation is the first to go, and the first donation is the last to go. Follow the principle of “first
in time, stronger in right”. Law contemplates that the testator prefers the earlier donations.
4. REDUCE THE LEGITIMES OF THE ILLEGITIMATE CHILDREN/DESCENDANTS
‣ Remember that there is one instance where the legitime will NOT be satisfied
‣ This is when there is no free portion because the total legitimes exceed the estate.
‣ This occurs when there is a concurrence of legitimate and illegitimate children/descendants. (Art. 895)
‣ Even if you reduce all the testamentary dispositions and donations to nothing, you cannot satisfy the legitime
‣ The remedy is to reduce pro-rata the legitimes of the illegitimate children/descendants (Art. 895)
1. If, upon being capitalized according to actuarial standards, the value of the grant exceeds the free portion (it impairs
the legitime), it has to be reduced, because the legitime cannot be impaired.
2. The testator can impose no usufruct or any other encumbrance on the part that passes as legitime
3. Subject to the two rules just stated, the compulsory heirs may elect between ceding to the devisee/legatee the free
portion (or the proportional part thereof corresponding to the said legacy/devise, in case there are other dispositions),
and complying with the terms of the usufruct or life annuity or pension.
METHOD OF REDUCTION IF THE DEVISE IS INDIVISIBLE REAL PROPERTY (ART. 912 AND 913)
‣ Art. 912 and 913 provides specific rules in cases the devise to be reduced is:
2. Indivisible
‣ Rules:
1. If the extent of reduction is less than 1 /2 of the value of the thing, devisee has right to acquire it
2. If extent of reduction is 1/2 or more of the value of the thing, compulsory heir (whose legitime is impaired) has right
to acquire it
3. There should be pecuniary reimbursement to the party who did not get his physical portion of the thing devised.
4. If neither party (the compulsory heir/s and the devisee) elects to exercise his right of acquiring such property, any
other heir or devisee, who elects to do so, may acquire the thing and pay the parties (the compulsory heir and
the devisee in question) their respective shares in money
5. If no heir or devisee elects to acquire it, it shall be sold at public auction and the net proceeds accordingly divided
between the parties concerned.
‣ Note: This rule of constructive partition is similar to that in co-ownership (Art. 498) and in partition of the decedent’s
estate (Art. 1086), except that, in these two latter cases, the acquisition by one of the co-owners or co-heirs can be
done only if all the co-owners or co-heirs agree to such acquisition.
Article 914. The testator may devise and bequeath the free portion as he may deem fit. (n)
‣ This is the portion left after satisfying the legitimes of the compulsory heirs
‣ BALANE: Note that this covers not only dispositions by devise or legacies but all modes of testamentary dispositions
‣ This article is simply a restatement of Art. 842, and is therefore unnecessary.
‣ “One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this
Code with regard to the legitime of said heirs"
SECTION 6: DISINHERITANCE
EFFECT OF DISINHERITANCE
Article 915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes expressly
stated by law. (848a)
2. It must be for a cause specified by law (Article 916 in relation to Articles 919-921);
3. The will must specify the cause (Articles 916 and 918);
7. If the truth of the cause is denied, it must be proved by the proponent (Article 917).
‣ BALANE: The strictness of the requisites indicates the policy of the law. It regards disinheritance with disfavor and will
grant it only with reluctance, because disinheritance results in deprivation of legitime.
EFFECT OF DISINHERITANCE
‣ RULE: THE EFFECT OF DISINHERITANCE IS NOT JUST DEPRIVATION OF THE LEGITIME, BUT TOTAL EXCLUSION OF THE
DISINHERITED HEIR FROM THE INHERITANCE.
‣ Remember that Art. 904 sets forth the rule that the testator cannot deprive the compulsory heirs of the legitime. The
sole exception to this rule is disinheritance.
1. His legitime,
Article 916. Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified. (849)
Article 917. The burden of proving the truth of the cause for disinheritance shall rest upon the other heirs of the testator, if
the disinherited heir should deny it. (850)
‣ All the disinherited heir need do is deny the cause and the burden is thrown upon those who would uphold the
disinheritance.
INEFFECTIVE DISINHERITANCE
Article 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not
proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice
the person disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as
will not impair the legitime. (851a)
‣ This article refers to the requisite that the legal cause for disinheritance should be specified and such must be proved to
be true.
‣ If the disinheritance lacks one or other of the requisites mentioned in this article, the heir in question gets his legitime.
As to whether he will also get any part of the intestate portion or not, this depends on whether the testator gave away
the free portion through testamentary dispositions.
‣ If he did, these dispositions are valid and the compulsory heir improperly disinherited gets only his legitime.
‣ If the testator did not, the compulsory heir will be entitled to his corresponding share of the free portion as well.
‣ Note the difference between the effect of ineffective disinheritance and that of preterition. (Article 854).
Article 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well
as illegitimate:
(1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six
years or more, if the accusation has been found groundless;
(3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or
to change one already made;
(5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or descendant;
(7) When a child or descendant leads a dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil interdiction. (756, 853, 674a)
‣ Note that the testator contemplated here is the parent or ascendant, while the compulsory heir is the testator’s
children or descendant
‣ The crime of which the testator is accused must carry a penalty of at least six years’ imprisonment
‣ BALANE: This should be “more” than 6 years, because what is contemplated is prision mayor and above.
b. The testator must be acquitted.
c. The accusation must be found to be groundless
‣ The judgment of acquittal must state either that no crime was committed or that the accused did not commit the
crime.
4. CAUSES THE TESTATOR TO MAKE OR CHANGE A WILL BY FRAUD, VIOLENCE, INTIMIDATION OR UNDUE INFLUENCE
‣ Covers causing the testator either to make a will or to change one already made
‣ BALANE: On its face, this ground is not that serious compared to the previous grounds, but in testmentary law, this is
very serious, as you are depriving the testator of his testamentary freedom
5. UNJUSTIFIABLY REFUSES TO GIVE SUPPORT THE TESTATOR
‣ The demand must have been unjustifiably refused. Mere refusal is not enough
‣ Note that the ascendants are only third in the hierarchy of preference among claimants of support (Art. 200, par. 3,
Family Code).
‣ Consequently, a physical assault that would not fall under par. 1, could fall under this paragraph.
‣ Note that this is very hard to prove, especially if the verbal or physical assault took place with no witnesses. The other
heirs will have a hard time proving this ground.
‣ There must be a habituality or continuity to the conduct to make it fall under this paragraph.
‣ BALANE: This should also be judged by the present values of society. The dishonorable or disgraceful conduct or
pattern of behavior need not be sexual in nature, although it may often be that. Surely, a child or descendant whose
livelihood is drug-pushing or smuggling is living a dishonorable and disgraceful life (assuming our society still
recognizes some civilized values).
8. CONVICTION OF A CRIME PENALIZED BY CIVIL INTERDICTION
‣ Final conviction is required.
‣ The accessory penalty of civil interdiction is imposed with the principal penalties of death, reclusion perpetua, and
reclusion temporal. (Articles 40-41, Revised Penal Code).
‣ BALANE: Note that you need “conviction” (criminal) in some cases, thus, it must be proved by proof beyond reasonable
doubt before a competent court. But in other cases, it may be proved by preponderance of evidence.
Article 920. The following shall be sufficient causes for the disinheritance of parents or ascendants, whether legitimate or
illegitimate:
(1) When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or
attempted against their virtue;
(2) When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(3) When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six
years or more, if the accusation has been found to be false;
(4) When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator
(5) When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or
to change one already made;
(6) The loss of parental authority for causes specified in this Code;
(7) The refusal to support the children or descendants without justifiable cause;
(8) An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them.
(756, 854, 674a)
BALANE: Pars. 2, 3, 4, 5, and 7 are also enumerated under Article 919. But note the variation in the wording of par. 3—The
word here used is false, whereas par. 2 of Art. 919 uses groundless. Par. 2 of Art. 921 also uses false. The change is not
substantive, but merely stylistic.
‣ Note that the testator contemplated here is the children or descendant, while the compulsory heir is the testator’s
parent or ascendant
‣ She continuously shunned the natural and legal obligations which she owed to the child; completely withheld her
presence, her love, her care, and the opportunity to display maternal affection; and totally denied her support and
maintenance. Her silence and inaction have been prolonged to such a point that her abandonment of the child and
her total relinquishment of parental claim over her, can and should be inferred as a matter of law
2. INDUCED THEIR DAUGHTERS TO LIVE A CORRUPT OR IMMORAL LIFE
‣ This ground is basically the same as that given in Art. 231(2) of the Family Code as a ground for suspension or
deprivation of parental authority.
‣ TOLENTINO: Although the law mentions only ‘daughters', we believe that this should be construed to mean all
female descendants. For instance, X has two granddaughters, who are children of a predeceased child. He leads
one of them to a life of prostitution. Certainly, he has committed such a reprehensible act as would justify his
disinheritance by any of those granddaughters.
‣ BALANE: Shouldn’t sons and other male descendants, and other female descendants be covered as well by this
provision? It was a more innocent world when the present Code was drafted in the late forties. Now, sexual
offenses are committed, apparently with equal frequency, against both males and females. Gender equality cuts
both ways. Note that Art. 231, pars. (2) and (4) of the Family Code make no distinction. They should be included by
virtue of the Equal Protection Clause and Convention on the Rights of the Child
3. ATTEMPT AGAINST THE DAUGHTER’S VIRTUE
‣ Final conviction is NOT required here.
4. GUILTY OF ATTEMPT ON THE LIFE OF TESTATOR, HIS SPOUSE, DESCENDANTS, OR ASCENDANTS
5. FALSE ACCUSATION OF THE TESTATOR OF A CRIME PUNISHABLE BY IMPRISONMENT OF 6 YEARS OR MORE
‣ BALANE: “false” should be understood to be the same as “groundless” in Art. 919, but the latter is the better term
6. CONVICTION FOR ADULTERY OR CONCUBINAGE WITH TESTATOR’S SPOUSE
7. CAUSES THE TESTATOR TO MAKE OR CHANGE A WILL BY FRAUD, VIOLENCE, INTIMIDATION OR UNDUE INFLUENCE
8. CULPABLE LOSS OF PARENTAL AUTHORITY
‣ Obviously, not all causes for loss of parental authority are grounds for disinheritance (such as attainment of the age of
majority).
‣ Only those causes which involve culpability on the part of the parents will provide grounds for disinheritance (Art. 229,
231 and 232 of the Family Code), which are:
a. Sexual abuse
‣ Note that there should be a judicial deprivation (a judicial decree) of parental authority based on these grounds
9. UNJUSTIFIABLY REFUSES TO GIVE SUPPORT THE TESTATOR, OR OTHER CHILDREN OR DESCENDANTS
10. ATTEMPT ON THE LIFE OF THE OTHER PARENT, UNLESS THERE IS RECONCILIATION
‣ No conviction is required here (unlike in number 3, where final conviction is required)
‣ The meaning of “attempt” is the same as its meaning in number 3, which is to be used in its non-technical sense.
‣ Reconciliation between the parents removes the right of a child or descendant to disinherit and rescinds a
disinheritance already made.
Article 921. The following shall be sufficient causes for disinheriting a spouse:
(1) When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or
ascendants;
(2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or
more, and the accusation has been found to be false;
(3) When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or to change
one already made;
(4) When the spouse has given cause for legal separation;
(5) When the spouse has given grounds for the loss of parental authority;
(6) Unjustifiable refusal to support the children or the other spouse. (756, 855, 674a)
‣ Note that the testator contemplated here is the decedent-spouse, while the compulsory heir is the surviving
spouse of the testator
‣ But note that one of the effects of a decree of legal separation is to exclude the offending spouse from inheriting
from the innocent spouse
1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child
of the petitioner;
2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage
in prostitution, or connivance in such corruption or inducement;
4. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
9. Abandonment of petitioner by respondent without justifiable cause for more than one year.
5. GIVING CAUSE FOR LOSS OF PARENTAL AUTHORITY
‣ Note that this is different from the ground in Art. 920.
‣ Whereas in Art. 920, actual loss of parental authority (a judicial decree) is required, here giving grounds therefor is
sufficient, thus, he need not be judicially deprived.
6. UNJUSTIFIABLY REFUSES TO GIVE SUPPORT THE TESTATOR OR THEIR CHILDREN
Common 1. Guilty of attempt on the life of testator, his spouse, descendants, or ascendants
Grounds 2. Groundless/false accusation of the testator of a crime punishable by imprisonment of 6 years or more
3. Causes the testator to make or change a will by fraud, violence, intimidation or undue influence
5. Conviction for adultery or concubinage with testator’s spouse (Except for Art. 921)
Particular 1. Seriously maltreats the 1. Abandonment of children 1. Giving cause for legal separation
Grounds testator by word or deed 2. Induced their daughters to live a 2. Giving cause for loss of parental
2. Leads a dishonourable or corrupt or immoral life authority
disgraceful life 3. Attempt against the daughter’s virtue
3. Conviction of a crime 4. Culpable loss of parental authority
penalized by civil interdiction 5. Attempt on the life of the other parent,
unless there is reconciliation
SUBSEQUENT RECONCILIATION
Article 922. A subsequent reconciliation between the offender and the offended person deprives the latter of the right to
disinherit, and renders ineffectual any disinheritance that may have been made. (856)
BALANE: Through reconciliation, the law keeps the door open for the disinherited heir to be restored to capacity. This rescinds
the disinheritance previously made. This is akin to reconciliation in legal separation.
1. Express Pardon
‣ A general pardon extended by the testator on his deathbed to all who have offended him will not suffice; it must be
a pardon expressly and concretely extended to the offender, who accepts it
2. Unequivocal Conduct
‣ The intent to forgive must be clear.
‣ This is ultimately “a question of fact, which will be resolved, in case of controversy, by the courts
‣ BALANE: There is no definition or required form for reconciliation, it can be oral or in writing, it may be express or implied
from the acts of the parties. However, it must be definitive.
EFFECTS OF RECONCILIATION
1. The disinherited heir is restored to his legitime.
Article 923. The children and descendants of the person disinherited shall take his or her place and shall preserve the
rights of compulsory heirs with respect to the legitime; but the disinherited parent shall not have the usufruct or
administration of the property which constitutes the legitime. (857)
Article 972. The right of representation takes place in the direct descending line, but never in the ascending.
Article 1035. If the person excluded from the inheritance by reason of incapacity should be a child or descendant of the
decedent and should have children or descendants, the latter shall acquire his right to the legitime.
FAMILY CODE
Article 225. The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated
common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail,
unless there is a judicial order to the contrary.Where the market value of the property or the annual income of the child
exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine,
but not less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of
the obligations prescribed for general guardians.
A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides, or, if the
child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated.
The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the
performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved.
The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental
authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall
apply. (320a)
Article 226. The property of the unemancipated child earned or acquired with his work or industry or by onerous or
gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter's support and
education, unless the title or transfer provides otherwise.
The right of the parents over the fruits and income of the child's property shall be limited primarily to the child's support
and secondarily to the collective daily needs of the family. (321a, 323a)
‣ However, if the heir disinherited is a parent/ascendant or spouse, the children or descendants of the disinherited heir
do not have any right of representation.
‣ BALANE: Art. 923 is carelessly worded. See Art. 972 and 1035 for correct wording. Representation takes place in favour
of the child or descendant of the disinherited heir (who himself is a child or descendant of the decedent).
EXTENT OF REPRESENTATION
‣ The representative takes the place of the disinherited heir not only with respect to the legitime, but also to any
intestate portion that the disinherited heir would have inherited.
‣ Representation, therefore, occurs in compulsory and intestate succession, but NOT in testamentary succession.
‣ BALANE: This has been amended, read this together with Art. 225 and 226 of the Family Code, the right of the parents
now has a right over the fruits and income of the child’s property (which was acquired by the child by right of
representation, by virtue of the disinheritance of such parent) BUT such shall be limited primarily to the child’s support
and secondarily to the collective daily needs of the family
Article 924. All things and rights which are within the commerce of man be bequeathed or devised.
Article 782. An heir is a person called to the succession either by the provision of a will or by operation of law. Devisees
and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will. (n)
‣ Legacies and devises are codally defined in Art. 782, par. 2, but the definitions by the Spanish Code and Castan are
better:
1. Legacy
‣ Testamentary disposition of personal property by particular title
2. Devise
‣ Testamentary disposition of real property by particular title.
‣ Ex: X gives Y the whole of his estate, or 1/4 of his estate, in either case, Y is considered as an heir
2. Devisee/Legatee
‣ Those who succeed to definite, specific and individual properties
‣ BALANE: Anything which is appropriable and alienable is within the commerce of man, fungible, indivisible,
divisible, real, personal, incorporeal, etc.
‣ It is not required that the thing devised or bequeathed belong to the testator.
Article 925. A testator may charge with legacies and devises not only his compulsory heirs but also the legatees and
devisees.
The latter shall be liable for the charge only to the extent of the value of the legacy or the devise received by them. The
compulsory heirs shall not be liable for the charge beyond the amount of the free portion given them. (858a)
Article 926. When the testator charges one of the heirs with a legacy or devise, he alone shall be bound.
Should he not charge anyone in particular, all shall be liable in the same proportion in which they may inherit. (859)
‣ BALANE: The liability for the legacy/devisee is on the estate, this is called a direct legacy/devise
‣ EXCEPTION: THE TESTATOR MAY IMPOSE THE BURDEN ON A TESTAMENTARY HEIR OR TO ANOTHER LEGATEE OR DEVISEE,
BUT NOT THE COMPULSORY HEIR
‣ In this case, the testamentary disposition will be subject to a mode (modal disposition). As far as the heir, legatee,
or devisee charged is concerned, it will be a mode (Art. 882)
‣ BALANE: This is not common. This is also called an indirect or subsidiary legacy/devise
‣ If he does so, then the heir, legatee, or devisee charged will, if he accepts the disposition in his favor, be bound to
deliver the legacy or devise to the person specified.
‣ Extent of liability of heir, devisee, or legatee in case of subsidiary legacies or devises is the value of the benefit
received from the testator.
‣ Ex: “I give A 1/4 of my estate but I impose upon him the obligation to give B a car." If A wants to accept the 1/4, he
will have to give a car to B.”
‣ BALANE: The wording of Art. 925 is erroneous. A compulsory heir as such cannot be burdened or made liable with a
legacy or devise because that would impair his legitime. Only a testamentary heir can be so burdened and charged.
The devise or legacy can only be charged to the free portion.
Article 927. If two or more heirs take possession of the estate, they shall be solidarily liable for the loss or destruction of a
thing devised or bequeathed, even though only one of them should have been negligent. (n)
‣ This liability will also attach to the executor or administrator in the proper cases.
‣ BALANE: This is just the principle of solidary liability of joint-tortfeasors. This is one of the cases where the law imposes
solidarity. In fact, this applies not just to the heirs, but to all persons, under Tort Law.
Article 928. The heir who is bound to deliver the legacy or devise shall be liable in case of eviction, if the thing is
indeterminate and is indicated only by its kind. (860)
Article 929. If the testator, heir, or legatee owns only a part of, or an interest in the thing bequeathed, the legacy or devise
shall be understood limited to such part or interest, unless the testator expressly declares that he gives the thing in its
entirety. (864a)
Article 930. The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that
the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the disposition shall take effect. (862a)
Article 931. If the testator orders that a thing belonging to another be acquired in order that it be given to a legatee or
devisee, the heir upon whom the obligation is imposed or the estate must acquire it and give the same to the legatee or
devisee; but if the owner of the thing refuses to alienate the same, or demands an excessive price therefor, the heir or the
estate shall only be obliged to give the just value of the thing. (861a)
Article 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property
disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n)
‣ RULE: GENERALLY, IF THE LEGACY/DEVISE OF A THING ONLY OWNED IN PART BY THE TESTATOR WHAT IS CONVEYED IS ONLY
THE INTEREST OR PART OWNED BY THE TESTATOR. (ART. 929)
‣ If the other parties are unwilling to alienate (or the other parties are asking for an unreasonable price), the
estate should give the legatee/devisee the monetary equivalent (by analogy with Article 931)
‣ The validity of the disposition as to the part or interest not owned by the testator will be determined by the
provisions of Articles 930 and 931 (pertaining to devises/Legacies of a Thing Owned by Another)
RULES ON LEGACIES/DEVISES IN CASE THE THING IS OWNED BY ANOTHER (ART. 930, 931)
BALANE: There are two requirements in case a devise/legacy of a thing owned by another:
1. Testator must expressly order the acquisition of the thing
2. The testator must not have made a mistake, he must know that the property belonged to him
‣ If the owner is unwilling to part with the thing, the legatee/devisee should be given the monetary equivalent.
‣ EXCEPTION: If, subsequent to the making of the disposition, the thing is acquired by the testator onerously or
gratuitously, the disposition is validated.
‣ BALANE: Th testator made a mistake, maybe he was rich and thought he owned the proeprty he made subject to a
testamentary disposition. Of course, it is void, except if he subsequent (after the making of the will) acquires such
property
3. IF THE TESTATOR KNEW THAT THE THING DID NOT BELONG TO HIM BUT DID NOT ORDER ITS ACQUISITION
Article 932. The legacy or devise of a thing which at the time of the execution of the will already belonged to the legatee
or devisee shall be ineffective, even though another person may have some interest therein.
Article 933. If the thing bequeathed belonged to the legatee or devisee at the time of the execution of the will, the legacy
or devise shall be without effect, even though it may have subsequently alienated by him.
If the legatee or devisee acquires it gratuitously after such time, he can claim nothing by virtue of the legacy or devise;
but if it has been acquired by onerous title he can demand reimbursement from the heir or the estate. (878a)
RULES IN CASE THE LEGACY/DEVISE IS ALREADY OWNED OR SUBSEQUENTLY ACQUIRED BY THE DEVISEE/LEGATEE
1. IF THE THING ALREADY BELONGED TO THE LEGATEE/DEVISEE AT THE TIME OF THE EXECUTION OF THE WILL
‣ Legacy/ devise void.
‣ It is NOT validated by an alienation by the legatee/devisee subsequent to the making of the will, unless the acquirer is
the testator himself
‣ NOTE: Arts. 932, par. 1 and 933, par. 1 say essentially the same thing and should be merged.
2. IF THE THING WAS OWNED BY ANOTHER PERSON AT THE TIME OF THE MAKING OF THE WILL AND ACQUIRED THEREAFTER BY
THE LEGATEE/DEVISEE
b. If the testator was not in error (testator knew that it did not belong to him)
i. If the thing was acquired onerously by legatee/devisee
‣ Legatee/devisee is entitled to reimbursement
‣ BALANE: Devisee/legatee is not entitled to anything anymore since the purpose of the testator has already
been achieved
3. IF THE THING WAS OWNED BY THE TESTATOR AT THE TIME OF THE MAKING OF THE WILL AND ACQUIRED THEREAFTER FROM
HIM BY THE LEGATEE/DEVISEE
‣ Articles 932 and 933 are silent on this, but Article 957, par. 2 can be applied and the legacy/devise should be deemed
revoked.
‣ BALANE: Not entitled to reimbursement, because when the testator sold it to the devisee/legatee, this revokes the
legacy/devisee. This is one of the modes of revocation (revocation by operation of law, by alienation of the thing)
Article 932. If the testator expressly orders that the thing be freed from such interest or encumbrance, the legacy or
devise shall be valid to that extent. (866a)
Article 934. If the testator should bequeath or devise something pledged or mortgaged to secure a recoverable debt
before the execution of the will, the estate is obliged to pay the debt, unless the contrary intention appears.
The same rule applies when the thing is pledged or mortgaged after the execution of the will.
Any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes with it to the legatee or
devisee. (867a)
Article 946. If the thing bequeathed should be subject to a usufruct, the legatee or devisee shall respect such right until it
is legally extinguished. (868a)
Article 935. The legacy of a credit against a third person or of the remission or release of a debt of the legatee shall be
effective only as regards that part of the credit or debt existing at the time of the death of the testator.
In the first case, the estate shall comply with the legacy by assigning to the legatee all rights of action it may have against
the debtor. In the second case, by giving the legatee an acquittance, should he request one.
In both cases, the legacy shall comprise all interests on the credit or debt which may be due the testator at the time of his
death. (870a)
Article 936. The legacy referred to in the preceding article shall lapse if the testator, after having made it, should bring an
action against the debtor for the payment of his debt, even if such payment should not have been effected at the time of
his death.
The legacy to the debtor of the thing pledged by him is understood to discharge only the right of pledge. (871)
Article 937. A generic legacy of release or remission of debts comprises those existing at the time of the execution of the
will, but not subsequent ones. (872)
1. LEGACY OF CREDIT
‣ Takes place when the testator bequeaths to another a credit against a third person.
2. LEGACY OF REMISSION
‣ A testamentary disposition of a debt in favor of the debtor.
‣ The legacy is valid only to the extent of the amount of the credit existing at the time of the testator's death.
‣ BALANE: Because this will be extinguished by meger/confusion. The legatee will be his own creditor.
‣ Example: "I give to A as legacy his debt to me."
‣ Example: “A owes B P1,000. B makes a will giving as legacy to A the debt of A. After the will is made, A pays B 500.
How much is the legacy? P500.”
2. Revoked if testator subsequently sues the debtor for collection (Article 936)
‣ The mere filing of an action to collect ipso facto revokes the legacy.
‣ The testator need not prosecute it, even if it is dismissed, the legacy is still revoked. Mere filing revokes it
‣ Example: “A bequeaths the credit he has against B to B. After making the will, A sues B for collection. A dies while the
suit is pending. Does B have a right to the credit? No. The filing of the action revoked the legacy.”
3. If generic, applies only to those existing at the time of the execution of the will. (Articles 937 and 793), unless
otherwise provided.
‣ Example: “"I give to A all the credits I have against B." When the will was made, B had 3 debts. After the will was
made, B incurs 2 more debts. Which ones can A claim? Only the first 3, except when the testator provides otherwise.”
‣ BALANE: As worded, Art. 937 only applies to legacy of remission, but by analogy it can apply to legacies of credit. This
is in accordance to the principle in Art. 793 (on rules of interpretation of testamentary dispositions)
Article 938. A legacy or devise made to a creditor shall not be applied to his credit, unless the testator so expressly
declares.
In the latter case, the creditor shall have the right to collect the excess, if any, of the credit or of the legacy or devise.
(837a)
Article 939. If the testator orders the payment of what he believes he owes but does not in fact owe, the disposition shall
be considered as not written. If as regards a specified debt more than the amount thereof is ordered paid, the excess is
not due, unless a contrary intention appears.
The foregoing provisions are without prejudice to the fulfillment of natural obligations. (n)
LEGACY/DEVISE TO A CREDITOR
‣ RULE: GENERALLY, IT WILL BE TREATED LIKE ANY OTHER LEGACY/DEVISE AND THEREFORE WILL NOT BE IMPUTED TO THE
DEBT.
‣ EXCEPTION: IT WILL BE IMPUTED TO THE DEBT IF THE TESTATOR SO PROVIDES, AND IF THE DEBT EXCEEDS THE LEGACY/
DEVISE, THE EXCESS MAY BE DEMANDED AS AN OBLIGATION OF THE ESTATE.
‣ BALANE: Note that if the testator does provide that the legacy/devise should be imputed to the debt and the
amount of the debt is equal to or more than the value of the legacy/devise it would be folly for the creditor to
accept the “benefit.” He will be much better off renouncing the legacy/devise and filing a claim for the credit.
‣ BALANE: This is not really a legacy, the testator is just ordering the payment of a debt.
2. INSTRUCTION TO PAY A NON-EXISTING DEBT
‣ This should be disregarded, because this would be solutio indebiti
‣ BALANE: This is also not a legacy, just a simple mistake.
‣ But note that a non-existing debt may be a debt which has prescribed, in that case, the testator may validly make a
legacy to pay such prescribed debt, based on his moral/natural obligation.
3. INSTRUCTION TO PAY MORE THAN WHAT IS DUE
‣ Effective only as to what is due, unless the bigger amount specified constitutes a natural obligation (Articles
1423-1430).
ALTERNATIVE LEGACIES
Article 940. In alternative legacies or devises, the choice is presumed to be left to the heir upon whom the obligation to
give the legacy or devise may be imposed, or the executor or administrator of the estate if no particular heir is so obliged.
If the heir, legatee or devisee, who may have been given the choice, dies before making it, this right shall pass to the
respective heirs.
Once made, the choice is irrevocable.
In the alternative legacies or devises, except as herein provided, the provisions of this Code regulating obligations of the
same kind shall be observed, save such modifications as may appear from the intention expressed by the testator. (874a)
‣ This is in accordance under the rules on alternative obligations, the debtor (the estate in this case) has the right of
choice
b. If subsidiary legacy/devise
‣ The heir, legatee, or devisee charged
‣ BALANE: These parties are, analogously, in the position of the debtor (Article 1200).
‣ EXCEPTION: The legatee/devisee (or any other person), if the testator so provides.
2. IF THE PERSON WHO IS TO CHOOSE DIES BEFORE CHOICE IS MADE
a. If the choice belonged to executor or administrator
‣ The right is transmitted to his successor in office.
3. CHOICE IS IRREVOCABLE
Article 941. A legacy of generic personal property shall be valid even if there be no things of the same kind in the estate.
A devise of indeterminate real property shall be valid only if there be immovable property of its kind in the estate.
The right of choice shall belong to the executor or administrator who shall comply with the legacy by the delivery of a
thing which is neither of inferior nor of superior quality. (875a)
Article 942. Whenever the testator expressly leaves the right of choice to the heir, or to the legatee or devisee, the former
may give or the latter may choose whichever he may prefer. (876a)
Article 943. If the heir, legatee or devisee cannot make the choice, in case it has been granted him, his right shall pass to
his heirs; but a choice once made shall be irrevocable. (877a)
Article 1246. When the obligation consists in the delivery of an indeterminate or generic thing, whose quality and
circumstances have not been stated, the creditor cannot demand a thing of superior quality. Neither can the debtor
deliver a thing of inferior quality. The purpose of the obligation and other circumstances shall be taken into consideration.
(1167a)
‣ BALANE: The rules on generic legacies are different with generic devises. Rule is stricter in devises rather than legacies
because this is based in Roman Law, before, real property is much highly regarded. But now, no valid reason for this,
because the distinction of the value of real and personal properties is really inexistent. Most people would even prefer
personal property, as it is much easier to transfer and dispose.
b. Generic Devise
‣ Valid only if there exists such an immovable in the testator’s estate at the time of his death.
‣ EXCEPTION: If the testator gives the right of choice to the legatee/devisee, or to the heirs on whom the obligation
to give the benefit is imposed (in a subsidiary legacy or devise).
‣ The choice must be limited to something which is neither superior nor inferior in quality.
‣ This rule applies whether the choice belongs to the executor/administrator or the legatee/devisee
‣ Ex: If the legacy is a patek watch, don’t get the high end watch full of diamonds, nor a fake one.
‣ The choice is irrevocable, once made.
‣ Transmissibility of right to choose:
b. If the choice belongs to the legatee/devisee and he dies before making the choice
‣ Right passes to his heirs.
Article 944. A legacy for education lasts until the legatee is of age, or beyond the age of majority in order that the legatee
may finish some professional, vocational or general course, provided he pursues his course diligently.
A legacy for support lasts during the lifetime of the legatee, if the testator has not otherwise provided.
If the testator has not fixed the amount of such legacies, it shall be fixed in accordance with the social standing and the
circumstances of the legatee and the value of the estate.
If the testator or during his lifetime used to give the legatee a certain sum of money or other things by way of support, the
same amount shall be deemed bequeathed, unless it be markedly disproportionate to the value of the estate. (879a)
Duration Age of majority (18) or the completion The period provided for the testator, if there is none, then the legatee’s
of a professional, vocational, or lifetime
general course, whichever comes
later.
2. That which is proper, as 2. That which the testator during his lifetime used to give the legatee by
determined by two variables:
way of support, unless markedly disproportionate to the value of the
disposable portion.
legatee, and
Article 945. If a periodical pension, or a certain annual, monthly, or weekly amount is bequeathed, the legatee may
petition the court for the first installment upon the death of the testator, and for the following ones which shall be due at
the beginning of each period; such payment shall not be returned, even though the legatee should die before the
expiration of the period which has commenced. (880a)
‣ Demandability—upon the testator’s death, and the succeeding ones at the beginning of the period without duty to
reimburse should the legatee die before the lapse of the period.
‣ BALANE: This is basically the same as support. Don't take the “upon the testator’s death” literally. This should be
harmonized with the rules on the settlement of estates, the debts should first be paid before any testamentary grants can
be complied with (unless the legatee files a bond under Rule 90, Section 1 of the Rules of Court). However, should the
legacy prove not inofficious, the date of effectivity shall retroact to the decedent’s death.
Article 947. The legatee or devisee acquires a right to the pure and simple legacies or devises from the death of the
testator, and transmits it to his heirs. (881a)
Article 948. If the legacy or devise is of a specific and determinate thing pertaining to the testator, the legatee or devisee
acquires the ownership thereof upon the death of the testator, as well as any growing fruits, or unborn offspring of
animals, or uncollected income; but not the income which was due and unpaid before the latter's death.
From the moment of the testator's death, the thing bequeathed shall be at the risk of the legatee or devisee, who shall,
therefore, bear its loss or deterioration, and shall be benefited by its increase or improvement, without prejudice to the
responsibility of the executor or administrator. (882a)
Article 949. If the bequest should not be of a specific and determinate thing, but is generic or of quantity, its fruits and
interests from the time of the death of the testator shall pertain to the legatee or devisee if the testator has expressly so
ordered.
Article 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights and
transmitting them to his heirs even before the arrival of the term. (799a)
Article 1187. The effects of a conditional obligation to give, once the condition has been fulfilled, shall retroact to the day
of the constitution of the obligation. Nevertheless, when the obligation imposes reciprocal prestations upon the parties,
the fruits and interests during the pendency of the condition shall be deemed to have been mutually compensated. If the
obligation is unilateral, the debtor shall appropriate the fruits and interests received, unless from the nature and
circumstances of the obligation it should be inferred that the intention of the person constituting the same was different.
In obligations to do and not to do, the courts shall determine, in each case, the retroactive effect of the condition that has
been complied with. (1120)
Article 885. The designation of the day or time when the effects of the institution of an heir shall commence or cease shall
be valid. In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its
expiration. But in the first case he shall not enter into possession of the property until after having given sufficient
security, with the intervention of the instituted heir. (805)
Article 884. Conditions imposed by the testator upon the heirs shall be governed by the rules established for conditional
obligations in all matters not provided for by this Section. (791a)
1. PURE AND Upon testator’s Upon testator’s death Upon the testator’s death (Article 948)
DETERMINATE death
‣ Upon acquisition
3. WITH A Upon the arrival of Upon arrival of the term, but Upon the arrival of the term (implied from Article 885)
4. WITH A Upon the Upon the testator’s death, if Upon the happening of the condition, unless the
SUSPENSIVE happening of the the condition is fulfilled (Article testator provides otherwise (Article 884, in relation to
CONDITION condition 1187) Art. 1187).
Article 950. If the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in the
following order:
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the testator to be preferential;
(3) Legacies for support;
(4) Legacies for education;
(5) Legacies or devises of a specific, determinate thing which forms a part of the estate;
(6) All others pro rata. (887a)
Article 911. After the legitime has been determined in accordance with the three preceding articles, the reduction shall be
made asfollows:
(1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary, the devises
or legacies made in the will;
(2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever.
If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer any
reduction until the latter have been applied in full to the payment of the legitime.
(3) If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than that of the
disposable portion, the compulsory heirs may choose between complying with the testamentary provision and
delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose. (820a)
‣ Art. 950 lays down an order of preference among legacies and devises in case the estate is not sufficient for all of
them.
‣ Art. 950 conflicts Art. 911
‣ Art. 911 also contains a rule for reduction of legacies and devises and the order of preference there is different
‣ This simply provides that all the non-preferred legacies/devises will be reduced pro rata, and the preferred legacies/
devises are reduced last.
When Applicable This will apply if the reason for the reduction is NOT This will apply if reductions have to be made because
the impairment of legitimes the legitimes have been impaired
Reasons other than impairment of legitimes, such as: *If the legacies/devises have exceeded the disposable
portion.
1. If there are no legitimes because there are no
compulsory heirs
Article 951. The thing bequeathed shall be delivered with all its accessories and accessories and in the condition in which
it may be upon the death of the testator. (883a)
Article 1166. The obligation to give a determinate thing includes that of delivering all its accessions and accessories, even
though they may not have been mentioned. (1097a)
‣ The obligation to deliver the accessions and accessories exists even if the testator does not explicitly provide for it.
‣ BALANE: This is only limited to determinate or specific legacies, NOT to generic ones. Same rule with Art. 1166
‣ The crucial time is the testator’s death, because that is when successional rights vest (Art. 777). That is why the thing
must be delivered in the condition in which it is at that time.
Article 952. The heir, charged with a legacy or devise, or the executor or administrator of the estate, must deliver the very
thing bequeathed if he is able to do so and cannot discharge this obligation by paying its value.
Legacies of money must be paid in cash, even though the heir or the estate may not have any.
The expenses necessary for the delivery of the thing bequeathed shall be for the account of the heir or the estate, but
without prejudice to the legitime. (886a)
Article 1244. The debtor of a thing cannot compel the creditor to receive a different one, although the latter may be of the
same value as, or more valuable than that which is due. In obligations to do or not to do, an act or forbearance cannot be
substituted by another act or forbearance against the obligee's will. (1166a)
Article 953. The legatee or devisee cannot take possession of the thing bequeathed upon his own authority, but shall
request its delivery and possession of the heir charged with the legacy or devise, or of the executor or administrator of
the estate should he be authorized by the court to deliver it. (885a)
‣ This article conforms to the rule of identity in the performance of obligations in Art. 1244
‣ Although the efficacy of a legacy or devise vests upon the testator’s death, actual delivery does not take place at that
time. As already pointed out, debts first have to be paid, then legitimes have to be determined, and the testamentary
dispositions (including legacies and devises) computed lest they impair the legitimes.
‣ It is only after these steps have been taken that the beneficiaries of the will can take possession.
Article 954. The legatee or devisee cannot accept a part of the legacy or devise and repudiate the other, if the latter be
onerous. Should he die before having accepted the legacy or devise, leaving several heirs, some of the latter may accept
and the others may repudiate the share respectively belonging to them in the legacy or devise. (889a)
Article 955. The legatee or devisee of two legacies or devises, one of which is onerous, cannot renounce the onerous one
and accept the other. If both are onerous or gratuitous, he shall be free to accept or renounce both, or to renounce either.
But if the testator intended that the two legacies or devises should be inseparable from each other, the legatee or devisee
must either accept or renounce both.
Any compulsory heir who is at the same time a legatee or devisee may waive the inheritance and accept the legacy or
devise, or renounce the latter and accept the former, or waive or accept both. (890a)
Article 1055. If a person, who is called to the same inheritance as an heir by will and ab intestato, repudiates the
inheritance in his capacity as a testamentary heir, he is understood to have repudiated it in both capacities.
Should he repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he may still accept it in the
latter capacity. (1009)
‣ EXCEPTION: If the legacy/devise is partly onerous and partly gratuitous, the recipient cannot accept the gratuitous
part and renounce the onerous part (Article 954, par. 1).
Article 956. If the legatee or devisee cannot or is unwilling to accept the legacy or devise, or if the legacy or devise for
any reason should become ineffective, it shall be merged into the mass of the estate, except in cases of substitution and
of the right of accretion. (888a)
‣ In case of Repudiation by or Incapacity of Legatee/Devisee, the following shall take effect, in the order of preference:
1. Substitution
2. Accretion
3. Intestacy
‣ If the these three things do not take effect, the legatee/devisee shall be merged into the mass of the estate (it goes by
intestacy)
2. ALIENATION
‣ The alienation by the testator may be onerous or gratuitous
‣ The alienation revokes the legacy/devise even if for any reason the thing reverts to the testator.
‣ Example: When the testator sells the thing to the legatee or devisee himself
‣ BALANE: This is an obvious exception because the testator had no intent to part with the property since he
merely alienated it under duress. The intent of the testator is the rationale here
‣ If the loss is merely partial, the legacy will subsist as to what remains
‣ Therefore, fortuitous loss after the testator’s death will simply be an instance of “res perit domino'' and will be
borne by the legatee/devisee.
‣ BALANE: How can you revoke it if it is vested already. This is “gago”. This is a case of res perit domino, the legatee
bears the loss because he is the owner, subject to the warranty against eviction in case of generic legacies.
Article 958. A mistake as to the name of the thing bequeathed or devised, is of no consequence, if it is possible to
identify the thing which the testator intended to bequeath or devise. (n)
Article 789. When there is an imperfect description, or when no person or property exactly answers the description,
mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence,
excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will,
as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking
into consideration the circumstances under which it was made, excluding such oral declarations. (n)
‣ BALANE: Art. 958 is already set forth in Art. 789 (on rules of interpretation of wills)
Article 959. A disposition made in general terms in favor of the testator's relatives shall be understood to be in favor of
those
‣ BALANE: This article is misplaced here, because it applies not just to legatees/devisees but to all testamentary heirs as
well. This article should have been placed in Section 2 of this Chapter: “Institution of Heir.” This applies only in favor of the
testator's own relatives.
‣ Who are these relatives?
‣ The term “relatives” extends only up to the fifth degree (the limit in intestacy).
‣ Belen v. BPI (109 Phil. 1008 [I960]) states in an obiter that “...the law [Art. 959] assumes that the testator intended to
refer to the rules of intestacy …”.
‣ BALANE: But you don’t apply the other rules intestacy, only the rule of proximity in degree up to the fifth degree
‣ TOLENTINO AND PARAS: Intestacy in Philippine law stops with the fifth degree of consanguinity. Beyond that degree,
blood kinship is not recognized.
‣ Institution of relatives of another person
‣ TOLENTINO AND VITUG: The institution of relatives of another person, not of the testator, does not fall within the
ambit of this article. There is opinion to the effect that such an institution is void for vagueness
‣ But it was held in Belen u. BPI, that an institution (by way of simple substitution, of the legatee’s “descendientes
legitimos” was valid and covered all legitimate descendants, i.e. children, grandchildren, etc. per capita, in accord with
Art. 846
a. There is no will
‣ A will that has subsequently lost its validity is one that has been revoked without a later one taking its place.
‣ BALANE: “validity” should read “efficacy”, because if a will is valid, it will always be valid. Only efficacy is lost.
2. WHEN THE WILL DOES NOT INSTITUTE AN HEIR TO, OR DISPOSE OF ALL THE PROPERTY BELONGING TO THE TESTATOR
‣ In such case, legal succession shall take place only with respect to the property of which the testator has not
disposed
‣ Remember that a will which does not institute an heir is still valid (as disposition of property is not an essential
element of wills), but it is a useless will as far as succession is concerned.
‣ BALANE: This is when the will does not dispose of the entire “free portion”, not the entire estate (as the provision says)
because the legitimes have to be respected.
3. IF THE SUSPENSIVE CONDITION ATTACHED TO THE INSTITUTION OF HEIR DOES NOT HAPPEN OR IS NOT FULFILLED
‣ Intestacy here may also be total or partial, depending on the extent of the disposition that turns out to be inoperative.
4. IF THE HEIR DIES BEFORE THE TESTATOR, OR REPUDIATES THE INHERITANCE, THERE BEING NO SUBSTITUTION, AND NO RIGHT
OF ACCRETION TAKES PLACE
5. WHEN THE HEIR INSTITUTED IS INCAPABLE OF SUCCEEDING, EXCEPT IN CASES PROVIDED IN THIS CODE.
‣ Intestacy here may also be total or partial
3. Preterition
Article 961. In default of testamentary heirs, the law vests the inheritance, in accordance with the rules hereinafter set
forth, in the legitimate and illegitimate relatives of the deceased, in the surviving spouse, and in the State. (913a)
Article 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of
representation when it properly takes place.
Relatives in the same degree shall inherit in equal shares, subject to the provisions of article 1006 with respect to relatives
of the full and half blood, and of article 987, paragraph 2, concerning division between the paternal and maternal lines.
(912a)
‣ There are two principles, operating sometimes simultaneously, sometimes singly: exclusion and concurrence.
‣ The groups of intestate heirs and the different combinations in intestacy are outlined under Section 2 (Articles 978-
1010)
BASIS OF INTESTACY
‣ The presumed will of the decedent, which would distribute the estate in accordance with the love and affection he has
for his family and close relatives, and in default of these persons, the presumed desire of the decedent to promote
charitable and humanitarian activities.
‣ MANRESA: The law of intestacy is founded on the presumed will of the deceased. Love, it is said, first descends, then
ascends, and, finally, spreads sideways. Thus, the law first calls the descendants, then the ascendants, and finally the
collaterals, always preferring those closer in degree to those of remoter degrees, on the assumption that the deceased
would have done so had he manifested his last will. Lastly, in default of anyone called to succession or bound to the
decedent by ties of blood or affection, it is in accordance with his presumed will that his property be given to charitable or
educational institutions, and thus contribute to the welfare of humanity
4. Illegitimate parents
5. Surviving spouse
8. The State.
‣ There are only four kinds of relationships of the decedent that will give rise to the status of intestate heir
2. PREFERENCE OF LINES
‣ The three lines of relationship are:
a. The descending
c. The collateral
‣ BALANE: This is also true in compulsory succession. The descending is preferred over the ascending.
‣ EXCEPTION: Illegitimate children/descendants do NOT exclude the legitimate parents/ascendants
3. PROXIMITY OF DEGREE
‣ The nearer exclude the more remote (Article 962, par. 1), without prejudice to representation.
‣ This applies to the descending and ascending line, but representation only takes place in the descending line.
‣ It also applies to the collateral line, but there is only once instance where representation take place in this line, this
is in case of brothers and sisters, and nephews and nieces.
‣ EXCEPTIONS:
a. The rule of preference of lines
‣ Parents and children are both one degree, but the descending is preferred over the ascending
‣ In fact, the descendant excludes the ascendants from inheriting, but if they are legitimate descendants
‣ Should there be more than one of equal degree belonging to the same ascending line (the grandparents and
higher) they shall divide the inheritance per capita; should they be of different lines but of equal degree, one-
half shall go to the paternal and the other half to the maternal ascendants. In each line the division shall be
made per capita. (Article 987, par. 2)
d. The distinction between full-blood and half-blood relationship among brothers and sisters, as well as
nephews and nieces
‣ They are also governed by a ratio of 2:1 (Articles 1006 and 1008)
e. Representation
‣ Heirs who inherit by right of representation will normally inherit in different shares, because the portioning is NO
per capita, but per stirpes
‣ Those (grandchildren, etc) who will inherit by right of representation will not inherit in equal shares, because
it will depend on the number of grandchildren in relation of the children they stand to inherit from by right of
representation (persons representing will only inherit what the person to be represented will inherit).
SUBSECTION 1: RELATIONSHIP
Article 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree. (915)
Article 964. A series of degrees forms a line, which may be either direct or collateral.
A direct line is that constituted by the series of degrees among ascendants and descendants.
A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants,
but who come from a common ancestor. (916a)
Article 966. In the line, as many degrees are counted as there are generations or persons, excluding the progenitor.
In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the parent, two
from the grandfather, and three from the great-grandparent.
In the collateral line, ascent is made to the common ancestor and then descent is made to the person with whom the
computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle, who is the
brother of his father, four from his first cousin, and so forth. (918a)
‣ Proximity of relationship is determined by the number of generations, and each generation forms a degree.
‣ BALANE: Just count the number of generations to get the number of degrees.
RULES IN ART. 963-966; HOW TO DETERMINE THE LINES AND COMPUTING DEGREES IN INTESTACY
1. DETERMINATION OF LINES
a. Direct Line
‣ That constituted by the series of degrees among ascendants and descendants. (Art. 964, par. 2)
i. Descending
‣ Unites the head of the family with those who descend from him. (Art. 965)
ii. Ascending
‣ Binds a person with those from whom he descends (Art. 965)
b. Collateral Line
‣ That constituted by the series of degrees among persons who are not ascendants and descendants, but who
come from a common ancestor. (Art. 964, par. 3)
‣ A collateral relative is any relative related to you by blood who is neither your descendant nor ascendant (siblings,
cousins, uncles and aunts)
2. COMPUTATION OF DEGREES
a. Direct line
‣ There is NO legal limit to the number of degrees for entitlement to intestate succession
‣ Theoretically, even the great-great-great grandfather is an intestate heir, assuming he is still living.
‣ Third degree:
‣ Fourth degree:
‣ Fifth degree:
Article 967. Full blood relationship is that existing between persons who have the same father and the same mother.
Half blood relationship is that existing between persons who have the same father, but not the same mother, or the same
mother, but not the same father. (920a)
‣ Full or half-blood relations is only material for certain collateral relatives, particularly the brothers and sisters and
nephews and nieces
‣ There is a ratio of 2:1 for full-blood and half-blood relationship respectively (Articles 1006 and 1008).
‣ With respect to other collateral relatives, the full-blood and half-blood relationship is not material.
Article 968. If there are several relatives of the same degree, and one or some of them are unwilling or incapacitated to
succeed, his portion shall accrue to the others of the same degree, save the right of representation when it should take
place. (922)
Article 1015. Accretion is a right by virtue of which, when two or more persons are called to the same inheritance, devise
or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is
added or incorporated to that of his co-heirs, co-devisees, or co-legatees. (n)
Article 1018. In legal succession the share of the person who repudiates the inheritance shall always accrue to his co-
heirs. (981)
‣ For accretion to take place the heirs involved must be in the same kind of relationship to the decedent, inheriting
together (must be all siblings, or all children, etc.)
‣ Thus, there can be no accretion among a grandchild, a grandparent and a brother of the decedent (even if they are
all related to him in the second degree) because they are not inheriting together in the first place.
c. Renunciation
‣ Note that only “some” of the heirs are disqualified or unwilling to inherit. If ALL of them are disqualified or unwilling,
then Art. 969 applies instead.
‣ EXCEPT: In intestate succession, representation only operates in the collateral line in favour of nephews and
nieces (representing their parents, who are the siblings of the decedent) (Art. 975)
‣ EXCEPTION TO EXCEPTION: In intestate succession, representation will NOT operate in favour of the
nephews and nieces, if ALL the siblings of the decedent are disqualified to inherit. (Art. 975)
4. In cases of adopted children
‣ In case of predecease or incapacity, representation, if proper, will prevent accretion from occurring.
‣ No accretion if there is representation (such as if predecease or incapacity in the descending line)
‣ BUT note that accretion will be proper, in favour of the heirs of the same degree, if there is no representation
(meaning the predeceased or incapacitated heirs have no children)
‣ Example: A has three sons, X, Y, and Z. A dies without a will. X is childless. For intestate purposes, if X in
disinherited (or incapacitated or predeceases) then the share of X will go to Y and Z by right of accretion, because
representation will not take place. If however, X has a child, then his share will go to his son by right of
representation, accretion will not take place.
‣ Accretion is more relevant in renunciation, because there is no representation is renunciation.
‣ Example: A has three sons, X, Y and Z. Z has children. A dies without a will. For compulsory/intestate purposes, if Z
renounces his share, then Z’s children cannot inherit (because they are excluded by nearer descendants X and Y,
and they can’t inherit by representation because there is no representation in renunciation), thus, Z’s share will
accrue by right of accretion to the other heirs of the same degree, X and Y.
Article 969. If the inheritance should be repudiated by the nearest relative, should there be one only, or by all the nearest
relatives called by law to succeed, should there be several, those of the following degree shall inherit in their own right
and cannot represent the person or persons repudiating the inheritance. (923)
Article 977. Heirs who repudiate their share may not be represented.
‣ Note that it must be ALL (who will renounce) because if not, then the right of accretion in Art. 968 applies, in favor of
the others (who did not renounce) of the same kind and degree
‣ Successional Order:
1. The descending line first
‣ If all the descendants of a certain degree renounce, succession passes to the descendants of the next degree, and
so on, ad indefinitum
‣ The rules outlined above, however, are equally applicable to such a situation, EXCEPT in cases where representation is
proper (such as in the descending line)
‣ Remember that representation does not apply in cases of universal renunciation outlined above, because there is no
representation in renunciation (Art. 977)
When it applies 1. Renuncation by SOME heirs of the 1. Renunciation by ALL heirs of the same
same degree
degree (universal renunciation)
Who will inherit Heirs of the Same Kind and Degree (those Next heirs in the successional order
instead? who inherit together)
Basis of inheriting Right of Accretion By their own right, as the nearest heirs
heirs
Example Renuncation by SOME heirs of the same Renunciation by ALL heirs of the same degree
degree
Article 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place
and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he
could have inherited. (942a)
Article 971. The representative is called to the succession by the law and not by the person represented. The
representative does not succeed the person represented but the one whom the person represented would have
succeeded. (n)
Article 972. The right of representation takes place in the direct descending line, but never in the ascending.
In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half
blood. (925)
Article 973. In order that representation may take place, it is necessary that the representative himself be capable of
succeeding the decedent. (n)
Article 974. Whenever there is succession by representation, the division of the estate shall be made per stirpes, in such
manner that the representative or representatives shall not inherit more than what the person they represent would
inherit, if he were living or could inherit. (926a)
Article 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by
representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions. (927)
Article 976. A person may represent him whose inheritance he has renounced. (928a)
Article 977. Heirs who repudiate their share may not be represented. (929a)
DEFINITION OF REPRESENTATION
‣ Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the
degree of the person represented, and acquires the rights which the latter would have if he were living or if he could
have inherited. (Art. 970)
‣ Criticisms on this statutory definition (According to JBL Reyes)
‣ BALANE: “Representation” is a case of agency, where one who acts in behalf of another. Representation involves
an agent who acts on behalf of a principal, where the former’s acts are considered the latter’s own. In
“representation” in succession, the heirs (who will represent) are really placed in the position of the heirs (who will
be represented) in their own right, thus it is really a case of substitution or subrogation. But because the law calls it
“representation” we will call it that.
2. The right is not created by “fiction of law”, rather, it is created directly by law
‣ The law has ample authority to pre- determine who are to be called to inherit; It needs no resort to fictions, but to
merely make use of its power to designate those who are to take the inheritance
1. Predecease
1. Compulsory In Compulsory Succession If the child to be represented is
Succession
LEGITIMATE
2. Incapacity
1. In the direct descending line only (Art.
‣ Only legitimate children/descendants
2. Intestate 972)
3. Disinheritance
can represent him (Art. 992)
Succession
‣ In this case, what operates is either: Art. 968 on right of accretion (if some of the heirs of the same degree renounce)
or Art. 969 on the rule on successional order and preference (if all of the heirs of the same degree renounce)
‣ But note that although a renouncer cannot be represented, he can represent the person whose inheritance he has
renounced (Article 976).
‣ Example:
‣ “A has a son B, B has a son C, and C has a son D. Note that there are four generations here. When B dies, C
renounces his inheritance from B. Later, A dies. C can still inherit from A by virtue of representing B. When C
renounced, he only renounced his share from B, not A. But, D cannot represent C and inherit from B. Thus, the
renouncer C can represent B but he cannot be represented by D.”
2. TESTAMENTARY SUCCESSION
‣ See Art. 856
‣ If the testator provides that in case the instituted heir (or devisee or legatee) cannot inherit from him (due to
predecease, incapacity, disinheritance), another person will represent him or inherit instead, this is a case of
substitution, NOT representation.
‣ Example: A makes a will, instituting X to 1/3 of his estate, and provides that if X dies before him, the son of X, will
represent him. The son of X will inherit by virtue of substitution, not representation.
‣ EXCEPTION TO EXCEPTION: In intestate succession, representation will NOT operate in favour of the nephews
and nieces, if ALL the siblings of the decedent are disqualified to inherit. (Art. 975)
‣ In this case the nephews and nieces will not inherit by representation, but in their own right, per capita.
5. IN THE DIRECT DESCENDING LINE
a. WHEN THE IRON CURTAIN RULE APPLIES (ART. 992)
‣ Illegitimate children cannot represent their legitimate parents
‣ This is because the relationship created by adoption only extends to the adopter and adopted. It does not extend
to their respective relatives.
‣ As a consequence, the adopted is an heir of the adopter but not of the relatives of the adopter.
‣ The relationship established by the adoption, however, is limited to the adopting parent, and does not extend
to his other relatives, except as expressly provided by law.
‣ Thus, the adopted child cannot be considered as a relative of the ascendants and collaterals of the adopting parents, nor of
the legitimate children which they may have after the adoption, except that the law imposes certain impediments to marriage
by reason of adoption.
‣ Neither are the children of the adopted considered as descendants of the adopter. The relationship created is exclusively be-
tween the adopter and the adopted, and does not extend to the relatives either.
‣ Relationship by adoption is limited to adopter and adopted, and does not extend to other members of the family of either; but
the adopted is prohibited to marry the children of the adopter to avoid scandal.
‣ BALANE: The rationale for the rule barring an adopted from representing and being represented is that the legal relationship
created by adoption is strictly between the adopter and the adopted. It does not extend to the relatives of either party.
PARTIES IN REPRESENTATION
1. Decedent
2. Person represented — Person who fails to inherit due to certain ground (predecease, incapacity, etc)
3. Representative — Person who inherits by right of representation
‣ If there are more than one representative in the same degree, then divide the portion equally, without prejudice to the
distinction between legitimate and illegitimate children, when applicable
‣ BALANE: per stirpes means “through the roots”, meaning the representative will only get what the “root” would have
gotten.
‣ Example:
‣ “A has 3 children, X, Y and Z. X has 2 children X1 and X2. If X dies before A (or is incapacitated or disinherited),
then X1 and X2 will inherit from A by right of representation. Once A dies, the portioning is 1/3 to Y, 1/3 to Z and
1/3 collectively to X1 and X2 (because they will receive only what the person represented would have received, per
stirpes, not per capita), they will then share the 1/3 equally, or 1/6 each.”
‣ “A has 2 children, B and C. B has 1 child, B1, while C has two children C1 and C2. B and C predeceases A. When
A dies, the three grandchildren will NOT inherit equally, because representation operates per stirpes, the
representatives receive only what the person represented would have received. Thus, B1 would get 1/2 and C1
and C2 will get 1/4 each (as they divide equally the share of their father C)”
‣ Remember of course the rules and portioning in legitime and intestacy
‣ Note the difference in the rule in case of disqualification of all children and all siblings (of the decedent)
1. If ALL the children (of the decedent) are disqualified
‣ The grand-children still inherit by representation, per stirpes (Article 982).
‣ The nephews/nieces do NOT inherit by representation, but by their own right as the next heirs preferred in
the successional line
‣ Meaning they will inherit per capita, or in equal portions (Article 975).
‣ In other words, parang Art. 869 din yung application (note that Art. 869 does not apply when representation
operates)
‣ Note that ALL the siblings of the decedent must be disqualified to inherit for per capita portioning to apply
(due to predecease, incapacity, or disinheritance)
‣ If only some of the siblings of the decedent are disqualified, then the nephews and nieces will inherit by
representation, and thus, per stirpes.
RULES IN REPRESENTATION
1. THE REPRESENTATIVE MUST BE QUALIFIED TO SUCCEED THE DECEDENT (ART. 973)
‣ This is because the representative succeeds the decedent (the one whom the person represented would have
succeeded), NOT the person represented. (Art. 971)
‣ If the person represented is qualified to succeed, then representation does not operate duh
INTESTATE HEIRS
4. Illegitimate parents
5. Surviving spouse
8. The State.
GROUP OF WHO THEY EXCLUDE WHO THEY CONCUR WITH WHO EXCLUDES THEM
INTESTATE HEIRS
‣ Like the legitime, intestacy operates in rules of exclusion and concurrence. Know the heirs who will exclude the others and
concur with others. Inversely, know the heirs who are excluded by the existence of the other heirs.
‣ Note under the table above:
‣ “Legitimate children” include legitimate descendants and adopted children
‣ “Illegitimate children” include illegitimate descendants
‣ “Legitimate parents” include legitimate ascendants and adopted parents
‣ “Illegitimate parents” DO NOT INCLUDE illegitimate ascendants (you do not go beyond the illegitimate parents)
‣ The State is always the last intestate heir. Thus, a person will always have an intestate heir.
1. Legitimate
The whole estate, divided Art. 979
Children
equally
2. Illegitimate
Art. 988
Children *The rule in case of a
1/2 of the estate
surviving spouse and the
3. Legitimate marriage, being in articulo Art.
*But, 1/3 only in the case of a
Parents mortis falling under Art. 900, 985,
surviving spouse and the 1/2 of the estate
par. 2 becomes irrelevant 987
marriage, being in articulo
now since total intestacy
mortis falling under Art. 900,
4. Surviving operates. Art.
par. 2
Spouse 994,
* For the legitimate 995
ascendants, observe the rule
5. Illegitimate of division by line Art. 993
Parents
6. Legitimate Art.
Siblings 1004,
The whole estate, divided equally. But in case of full or half-blood 1006
siblings, proportion of 2:1 applies (half-blood sibling gets only 1/2
7. Illegitimate of the share of a full-blood sibling) By
Siblings analogy
*The 2:1 rule also applies to full or half-blood nephews and nieces with Art.
1004,
*Note that for nephews and nieces, they are NOT inheriting by 1006
representation but rather, in their own right, as there is no sibling (Art.
8. Nephews and 975) Art.
None
Nieces 975,
1008
9. Other The whole estate, divided equally, between those of the same
Collaterals (up to degree. But observe the rule that the nearer in degree excluding
Art.
the fifth degree) the more remote
1009,
1010
*Note also that there is no representation nor full or half-blood
distinction for the other collateral relatives
11. Legitimate a. Legitimate Children: 1/2 a. If legitimes do not exceed the The whole estate, each
Children and of the estate estate: Apportion the free portion illegitimate child getting 1/2
Illegitimate between the children, but each the share of one legitimate
Children b. Illegitimate Children: illegitimate child get only 1/2 the child.
Each will get 1/2 of share of one legitimate child.
share of one legitimate b. If legitimes exceed the estate:
child No free portion (The legitime
prevails over intestacy, since you
Art.
don’t even have enough for the
983, Art.
legitimes, intestacy will not apply)
176 of
the
*This is a case where there may be no
Family
free portion as the legitimes may
Code
exceed the entire estate. Get the
legitimes first to determine whether it
has been impaired, in order to know
whether there is a free portion that will
pass by intestacy. Remember that in
this case, a proportionate reduction
must be made against the illegitimate
children
12. Legitimate a. Legitimate Children: 1/2 Apportion the free portion equally The whole estate, divided
Children and of the estate between the legitimate children and the equally (the surviving spouse
Surviving Spouse spouse (the surviving spouse counted counted as one legitimate
b. Surviving Spouse: as one legitimate child) child)
Share equal to that of
Art. 996
one child *But if only one legitimate child, then *If only one legitimate child,
the entire free portion of 1/4 is given to then the child gets 1/2, the
*But if only one legitimate the surviving spouse (meaning the surviving spouse gets the
child, then legitime of spouse spouse is beneficiary of the entire other half
is 1/4 of the estate only intestate portion)
13. Legitimate a. Legitimate Children: 1/2 a. If legitimes do not exceed the The whole estate, the
Children, of the estate estate: Apportion the free portion surviving spouse being
Illegitimate between the children, but each counted as one legitimate
Children, and b. Illegitimate Children: illegitimate child get only 1/2 the child and each illegitimate
Surviving Spouse Each will get 1/2 of share of one legitimate child. The child getting 1/2 the share of
share of one legitimate surviving spouse is counted as one legitimate
child one legitimate child
b. If legitimes exceed the estate:
c. Surviving Spouse: No free portion (The legitime
Art. 999
Share equal to that of prevails over intestacy, since you
and Art.
one legitimate child don’t even have enough for the
176 of
legitimes, intestacy will not apply)
the
*But if only one legitimate
Family
child, then legitime of spouse *This is the other case where there may
Code
is 1/4 of the estate only be no free portion as the legitimes may
exceed the entire estate. Get the
legitimes first to determine whether it
has been impaired, in order to know
whether there is a free portion that will
pass by intestacy. Remember that in
this case, a proportionate reduction
must be made against the illegitimate
children
14. Legitimate a. Legitimate Parents: 1/2 a. Legitimate Parents: None a. Legitimate Parents: 1/2
Parents and of the estate of the estate
Illegitimate b. Illegitimate Children: 1/4 of the Art. 991
Children b. Illegitimate Children: 1/4 estate b. Illegitimate Children: 1/2
of the estate of the estate
15. Legitimate a. Legitimate Parents: 1/2 a. Legitimate Parents: None a. Legitimate Parents: 1/2
Parents and of the estate of the estate
Surviving Spouse b. Surviving Spouse: 1/4 of the Art. 997
b. Surviving Spouse: 1/4 of estate b. Surviving Spouse: 1/2
the estate of the estate
16. Legitimate a. Legitimate Parents: 1/2 a. Legitimate Parents: None a. Legitimate Parents: 1/2
Parents, of the estate of the estate
Illegitimate b. Illegitimate Children: None
Children, and b. Illegitimate Children: 1/4 b. Illegitimate Children: 1/4 Art.
Surviving Spouse of the estate c. Surviving Spouse: 1/8 of the of the estate 1000
estate
c. Surviving Spouse: 1/8 c. Surviving Spouse: 1/4
of the estate of the estate
17. Surviving a. Surviving Spouse: 1/3 of a. Surviving Spouse: 1/6 of the a. Surviving Spouse: 1/2
Spouse and the estate estate of the estate
Illegitimate Art. 998
Children b. Illegitimate Children: 1/3 b. Illegitimate Children: 1/6 of the b. Illegitimate Children: 1/2
of the estate estate of the estate
18. Surviving a. Surviving Spouse: 1/4 of a. Surviving Spouse: 1/4 of the a. Surviving Spouse: 1/2
By
Spouse and the estate estate of the estate
analogy
Illegitimate
with Art.
Parents b. Illegitimate Parents: 1/4 b. Illegitimate Parents: 1/4 of the b. Illegitimate Parents: 1/2
997
of the estate estate of the estate
19. Surviving a. Surviving Spouse: 1/2 of a. Surviving Spouse: None a. Surviving Spouse: 1/2
Spouse and the estate of the estate
Legitimate b. Legitimate Siblings, Nephews and
Siblings, b. Legitimate Siblings, Nieces: 1/2 of the estate b. Legitimate Siblings,
Nephews and Nephews and Nieces: Nephews and Nieces:
Art.
Nieces None *Note that the legitimate nephews and 1/2 of the estate
1001
nieces are inheriting either by
representation (if they inherit with
legitimate siblings) or in there own right
(there is no legitimate sibling) (See Art.
975)
20. Surviving a. Surviving Spouse: 1/2 of a. Surviving Spouse: None a. Surviving Spouse: 1/2
Spouse and the estate of the estate
Illegitimate b. Illegitimate Siblings, Nephews and
Siblings, b. Illegitimate Siblings, Nieces: 1/2 of the estate b. Illegitimate Siblings,
Nephews and Nephews and Nieces: Nephews and Nieces:
Nieces None *Note that the illegitimate nephews and 1/2 of the estate
nieces are inheriting either by
representation (if they inherit with
illegitimate siblings) or in there own
right (there is no illegitimate sibling)
(See Art. 975)
Art. 994
*Who are illegitimate siblings? These
are the siblings of an illegitimate
decedent. When the law speaks of
‘brothers and sisters, nephews and
nieces’ as legal heirs of an illegitimate
child, it refers to illegitimate brothers
and sisters as well as to the children,
whether legitimate or illegitimate, of
such brothers and sisters (relate this
with the iron curtain rule in Art. 992)
21. Legitimate
Siblings, The whole estate, divided equally. But in case of full or half-blood Art.
Nephews and siblings, proportion of 2:1 applies (half-blood sibling gets only 1/2 of the 1005,
Nieces share of a full-blood sibling) 1008
None *The 2:1 rule also applies to full or half-blood nephews and nieces
22. Illegitimate By
Siblings, *Note that the legitimate nephews and nieces are inheriting either by analogy,
Nephews and representation (if they inherit with legitimate siblings) or in there own Art.
Nieces right (there is no legitimate sibling) (See Art. 975) 1005,
1008
PARTIAL INTESTACY
BALANE:
‣ The problem of partial intestacy is an unnecessary one. There is a problem because the civil code does not provide for
such situation. This is the bad news. The good news is that all the major commentators have a similar solution, which is
the most logical.
‣ The combinations laid down by the preceding articles (978-1014) cover only cases of total intestacy. Nowhere in this
Chapter or elsewhere can one find provisions to govern cases of partial intestacy; Instances where the decedent has
left a will disposing of part, but not all, of the disposable portion. How then should the estate be divided if the
decedent died with a will but the will does not dispose of the entire free or disposable portion?
‣ The problem is solved by inference, bearing in mind the law’s intent, thus:
1. Trace where the intestate or free portion went in total intestacy.
2. Since part of that free portion was disposed of by will, the testamentary provision should be carried out, and
what is left of the free portion should then be given to the intended beneficiary in intestacy.
RULE: TRACE WHERE THE INTESTATE/FREE PORTION WILL GO IN TOTAL INTESTACY, THE REMAINING FREE PORTION IN PARTIAL
INTESTACY (AFTER DEDUCTING TESTAMENTARY DISPOSITIONS) WILL BE DISPOSED ACCORDING TO SUCH PROPORTION
‣ This involves comparing the legitime portion and intestate portion in relation to the total portion each heir or group of heir
will get in total intestacy (see table of total intestacy above)
‣ Where the free portion will go, in total intestacy, can be generalised into these classes, thus in partial intestacy, it
will also go accordingly
1. INTESTATE (FREE) PORTION IS ENTIRELY GIVEN TO ONE OR ONE GROUP OF INTESTATE HEIR
‣ Thus, in partial intestacy the remaining free potion will also be disposed to the one heir or group of heir in these
cases
a. When there is only one or one group of intestate heir
‣ Obviously, since they are the only remaining intestate heirs, meaning they do not concur with other groups,
then the entire free portion is given to them
‣ Such as, if the only intestate heirs are the legitimate children alone; or legitimate parents alone, or the brothers
and sisters alone; legitimate siblings, nephews and nieces alone (unless there are full-blood and half-blood) or
illegitimate siblings, nephews and nieces alone (unless there are full-blood and half-blood).
‣ Entire free portion is given to the legitimate siblings, nephews and nieces
‣ Entire free portion is given to the illegitimate siblings, nephews and nieces
‣ Example: The net estate of A is 12 million. His compulsory heirs are his legitimate parents, and surviving spouse. Then
A institutes a third person to 1/8 of his estate. If A dies, you cannot divide the 12 million into 1/2 to parents (as
legitime), 1/4 to spouse (as legitime) and 1/8 to third person. Where will the remaining intestate portion of 1/8 go? To
the spouse alone. Why? since under Art. 997, if it had been total intestacy, the entire free portion would have gone
solely to the spouse, thus, in partial intestacy, the free portion should also go solely to the spouse.
‣ BALANE: The obvious intention of the law is to give it the free portion to the spouse. whats left of the free portion
should go to the intestate heir to whom it is meant to go if there was no will (in total intestacy).
3. INTESTATE PORTION IS DIVIDED BETWEEN THE INTESTATE HEIRS IN DIFFERENT PROPORTIONS (2:1 PROPORTION)
‣ Thus, in partial intestacy the remaining free potion will also be disposed of in a 2:1 proportion to such group of
heirs (illegitimate or half-blood get only 1/2 of what legitimate or full-blood gets)
a. Legitimate Children and Illegitimate Children
c. Legitimate Siblings, Nephews and Nieces (if there are full-blood and half-blood)
d. Illegitimate Siblings, Nephews and Nieces (if there are full-blood and half-blood)
FREE PORTION GIVEN TO ONE OR ONE FREE PORTION DIVIDED EQUALLY FREE PORTION DIVIDED 2:1
GROUP OF INTESTATE HEIR BETWEEN THE INTESTATE HEIRS ACCORDINGLY
Nieces
Article 978. Succession pertains, in the first place, to the descending direct line. (930)
Article 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as
to sex or age, and even if they should come from different marriages.
An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child. (931a)
Article 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal
shares. (932)
Article 981. Should children of the deceased and descendants of other children who are dead, survive, the former shall
inherit in their own right, and the latter by right of representation. (934a)
Article 982. The grandchildren and other descendants shall inherit by right of representation, and if any one of them
should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions.
(933)
Article 983. If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions
prescribed by article 895. (n)
Article 984. In case of the death of an adopted child, leaving no children or descendants, his parents and relatives by
consanguinity and not by adoption, shall be his legal heirs. (n)
‣ Art. 984 has been repealed by Secs. 17 and 18, R.A. 8552.
Article 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit
from him, to the exclusion of collateral relatives. (935a)
Article 986. The father and mother, if living, shall inherit in equal shares.
Should one only of them survive, he or she shall succeed to the entire estate of the child. (936)
Article 987. In default of the father and mother, the ascendants nearest in degree shall inherit.
Should there be more than one of equal degree belonging to the same line they shall divide the inheritance per capita;
should they be of different lines but of equal degree, one-half shall go to the paternal and the other half to the maternal
ascendants. In each line the division shall be made per capita. (937)
Article 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire
estate of the deceased. (939a)
Article 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is
dead, the former shall succeed in their own right and the latter by right of representation. (940a)
Article 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon
their death to their descendants, who shall inherit by right of representation from their deceased grandparent. (941a)
Article 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking one-
half of the estate, whatever be the number of the ascendants or of the illegitimate children. (942, 841a)
Article 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father
or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (943a)
Article 993. If an illegitimate child should die without issue, either legitimate or illegitimate, his father or mother shall
succeed to his entire estate; and if the child's filiation is duly proved as to both parents, who are both living, they shall
inherit from him share and share alike. (944a)
Article 994. In default of the father or mother, an illegitimate child shall be succeeded by his or her surviving spouse who
shall be entitled to the entire estate.
If the widow or widower should survive with brothers and sisters, nephews and nieces, she or he shall inherit one-half of
the estate, and the latter the other half. (945a)
‣ This only applies in intestacy, not to testacy, as the rule is predicated on the presumed will of the decedent
‣ The illegitimate cannot inherit from the legitimate, and the legitimate cannot inherit from the illegitimate.
‣ In other words, Article 992 prohibits succession ab intestato between the illegitimate child and the legitimate
children and relatives of his father or mother.
‣ This means that an illegitimate child cannot inherit by right of representation from the legitimate relatives of
his illegitimate parent, and vice versa. Thus, an illegitimate child of one who is himself a legitimate child
cannot represent the latter in the inheritance to his legitimate descendants (such as the illegitimate child’s
legitimate half-sister) or other legitimate relatives (such as grandparents).
‣ In the same manner, these legitimate relatives are prohibited from succeeding intestate the illegitimate child.
‣ Note that the illegitimate child of an illegitimate parent is not so barred. If both of them are illegitimate, there is
NO bar
‣ That rule is based on the theory that the illegitimate child is disgracefully looked upon by the legitimate family
while the legitimate family is, in turn, hated by the illegitimate child.
‣ The law does not recognize the blood tie and seeks to avoid further grounds of resentment
‣ Between the legitimate family and the illegitimate family there is presumed to be an intervening antagonism and
incompatibility. The illegitimate child is disgracefully looked down upon by the legitimate child; the latter
considers the privileged condition of the former, and the resources of which it is thereby deprived; the former,
in turn, sees in the illegitimate child nothing but the product of sin, palpable evidence of a blemish broken in
life; the law does no more than recognize this truth, by avoiding further grounds of resentment.
‣ JBL REYES:
‣ MANRESA: Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely a
succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or
mother of said illegitimate child. They may have a natural tie of blood, but this is not recognized by law for the
purpose of Article 992. Between the legitimate family and the illegitimate family there is presumed to be an
intervening antagonism and incompatibility. The illegitimate child is disgracefully looked down upon by the
legitimate family; and the family is in turn, hated by the illegitimate child; the latter considers the privileged
condition of the former, and the resources of which it is thereby deprived; the former, in turn, sees in the
illegitimate child nothing but the product of sin, palpable evidence of a blemish broken in life; the law does no
more than recognize the truth, by avoiding further ground of resentment.
‣ While the new Civil Code may have granted successional rights to illegitimate children, those articles, however,
in conjunction with Article 992, prohibit the right of representation from being exercised where the person to be
represented is a legitimate child. Needless to say, the determining factor is the legitimacy or illegitimacy of the
person to be represented. If the person to be represented is an illegitimate child, then his descen- dants,
whether legitimate or illegitimate, may represent him; however, if the person to be represented is
legitimate, his illegitimate ascendants cannot repre- sent him because the law provides that only his
legitimate descendants may exercise the right of repre- sentation by reason of the barrier imposed In
Article 992. In this wise, the commentaries of Manresa on the matter in issue, even though based on the old
Civil Code, are still very much applicable to the new Civil Code because the amendment, although substantial,
did not consist of giving illegitimate children the right to represent their natural parents (legitimate) in the
intestate succession of their grandparents (legitimate).
‣ The word “relative” in Art. 992 is broad enough to comprehend all the kindred of the person spoken
of.The word “relatives” should be construed in its general acceptance.
‣ BALANE: The term relatives, although used many times in the Code, is not defined by it. In accordance
therefore with the canons of statutory interpretation, it should be understood to have a general and inclusive
scope, inasmuch as the term is a general one. Generalia verba sunt generaliter intelligenda That the law
does not make a distinction prevents us from making one
‣ According to Prof. Balane, to interpret the term relatives in Article 992 in a more restrictive sense than it is
used and intended is not warranted, by any rule of interpretation. Besides, he further states that when the
law intends to use the term in a more restrictive sense, it qualifies the term with the word col- lateral, as in
‣ The illegitimate grandchild of the decedent, was actually treated by the decedent and her husband as their own
son, reared from infancy, educated and trained in their businesses, and eventually legally adopted by
decedents husband, the original oppositor to respondents petition for letters of administration.
‣ In this case, Article 992 was also not applied where the illegitimate grandchild was legally adopted by
the grandparents, thus raising his status to that of a legitimate child entitled to succeed as a direct heir
to the inheritance left by his grandmother/adoptive mother
Article 995. In the absence of legitimate descendants and ascendants, and illegitimate children and their descendants,
whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate, without prejudice to the rights of
brothers and sisters, nephews and nieces, should there be any, under article 1001. (946a)
Article 996. If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the
succession the same share as that of each of the children. (834a)
Article 997. When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be
entitled to one-half of the estate, and the legitimate parents or ascendants to the other half. (836a)
Article 998. If a widow or widower survives with illegitimate children, such widow or widower shall be entitled to one-half
of the inheritance, and the illegitimate children or their descendants, whether legitimate or illegitimate, to the other half.
(n)
Article 999. When the widow or widower survives with legitimate children or their descendants and illegitimate children or
their descendants, whether legitimate or illegitimate, such widow or widower shall be entitled to the same share as that of
a legitimate child. (n)
Article 1000. If legitimate ascendants, the surviving spouse, and illegitimate children are left, the ascendants shall be
entitled to one-half of the inheritance, and the other half shall be divided between the surviving spouse and the
illegitimate children so that such widow or widower shall have one-fourth of the estate, and the illegitimate children the
other fourth. (841a)
Article 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to
one-half of the inheritance and the brothers and sisters or their children to the other half. (953, 837a)
Article 1002. In case of a legal separation, if the surviving spouse gave cause for the separation, he or she shall not have
any of the rights granted in the preceding articles. (n)
‣ The child argues that under Art. 892, he should get 3/4 of his father's estate. Art 892: “If only the legitimate child or
descendant of the deceased survives the widow or widower shall be entitled to one-fourth of the hereditary estate.”
As she gets one-fourth, therefore, I get 3/4, says the child.
‣ The spouse argues that under Art. 992, if a widow or widower and legitimate children or descendants are left, the
surviving spouse has in the succession the same share as that of each of the children.
‣ The child says that Art. 992 is unjust and unequitable to the extent that it grants the widow the same share as that of
the children in intestate succession, whereas in testate, she is given 1/4 and the only child 1/2. In testate succession,
where there is only one child of the marriage, the child gets one-half, and the widow or widower one-fourth. But in
intestate , if Art. 996 is applied now, the child gets one-half, and the widow or widower one-half. Unfair or inequitable,
they insist.
‣ The spouse contends that Art. 996 should control, regardless of its alleged inequity, being as it is, a provision on
intestate succession involving a surviving spouse and a legitimate child, inasmuch as in statutory construction, the
plural word "children" includes the singular "child."
‣ Art. 892 of the New Civil Code falls under the chapter on Testamentary Succession; whereas Art. 996 comes under
the chapter on Legal or Intestate Succession. Such being the case, it is obvious that the child cannot rely on Art. 892
to support his claim to 3/4 of his father's estate. Art 892 merely fixes the legitime of the surviving spouse and Art. 888
thereof, the legitime of children in testate succession. While it may indicate the intent of the law with respect to the
ideal shares that a child and a spouse should get when they concur with each other, it does not fix the amount of
shares that such child and spouse are entitled to when intestacy occurs. Because if the latter happens, the pertinent
provision on intestate succession shall apply, i.e., Art. 996.
‣ Since this is intestate proceedings. The only article applicable is Art. 996
‣ Art. 996 could or should be read (and so applied) : "If the widow or widower and a legitimate child are left, the
surviving spouse has the same share as that of the child."
‣ Indeed, if we refuse to apply the article to this case on the ground that "child" is not included in "children,"
the consequences would be tremendous, because "children" will not include "child" in the other articles
‣ Court said that “children” in Art. 996 includes “child” (if there is only one)
Article 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives
shall succeed to the entire estate of the deceased in accordance with the following articles. (946a)
Article 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. (947)
Article 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the
descendant's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes. (948)
Article 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the
former shall be entitled to a share double that of the latter. (949)
Article 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother's side, are the
only survivors, all shall inherit in equal shares without distinction as to the origin of the property. (950)
Article 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with
the rules laid down for brothers and sisters of the full blood. (915)
Article 1009. Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives
shall succeed to the estate.
The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole
blood. (954a)
Article 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line.
(955a)
Article 1011. In default of persons entitled to succeed in accordance with the provisions of the preceding Sections, the
State shall inherit the whole estate. (956a)
Article 1012. In order that the State may take possession of the property mentioned in the preceding article, the pertinent
provisions of the Rules of Court must be observed. (958a)
Article 1013. After the payment of debts and charges, the personal property shall be assigned to the municipality or city
where the deceased last resided in the Philippines, and the real estate to the municipalities or cities, respectively, in
which the same is situated. If the deceased never resided in the Philippines, the whole estate shall be assigned to the
respective municipalities or cities wherethe same is located. Such estate shall be for the benefit of public schools, and
public charitable institutions and centers, in such municipalities or cities. The court shall distribute the estate as the
respective needs of each beneficiary may warrant. The court, at the instance of an interested party, or on its own motion,
may order the establishment of a permanent trust, so that only the income from the property shall be used. (956a)
Article 1014. If a person legally entitled to the estate of the deceased appears and files a claim thereto with the court
within five years from the date the property was delivered to the State, such person shall be entitled to the possession of
the same, or if sold, the municipality or city shall be accountable to him for such part of the proceeds as may not have
been lawfully spent. (n)
IF THE ESTATE HAS BEEN GIVEN TO THE STATE BUT A PERSON LEGALLY ENTITLED LATER APPEARS
‣ Any person entitled by succession to the estate may file a claim with the court
‣ This would include any heir by any kind of succession: the legitime, testamentary, or intestate
‣ Such person shall be entitled to the possession of the same, or if sold, the municipality or city shall be accountable to
him for such part of the proceeds as may not have been lawfully spent
‣ Prescriptive period for claim—5 years from the delivery of the property to the State (the political subdivision
concerned).
DEFINITION OF ACCRETION
Article 1015. Accretion is a right by virtue of which, when two or more persons are called to the same inheritance, devise
or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is
added or incorporated to that of his co-heirs, co-devisees, or co-legatees. (n)
Article 1023. Accretion shall also take place among devisees, legatees and usufructuaries under the same conditions
established for heirs. (987a)
‣ When accretion does not operate, according to the kind of succession involved:
b. In testacy, accretion is subordinate to substitution (simple), meaning it does not operate if there is substitution.
c. In intestacy, accretion is subordinate to representation, meaning it does not operate if there is representation.
2. THERE MUST BE TWO OR MORE HEIRS, LEGATEES, DEVISEES CALLED TO THE SAME INHERITANCE, DEVISE OR LEGACY
3. WHEN AN HEIR, DEVISEE, OR LEGATEE:
a. Dies before the testator (predecease)
b. Renounces (renunciation)
‣ Note that these are also the same grounds for substitution (which operates in testamentary succession)
EFFECT OF ACCRETION
‣ RULE: THE SHARE OF THE HEIR WHO CANNOT INHERIT IS ADDED OR INCORPORATED TO THAT OF HIS CO-HEIRS, CO-DEVISEES
OR CO-LEGATEES
Effect A co-heir, co-devisee, or co- The appointed heir (substitute) The representative (compulsory or intestate
legatee is added or enters into the inheritance in heir) is raised to the place and the degree of
incorporated to the share of his default of the heir originally the person represented, and acquires the
co-heirs, co-devisees, or co- instituted (Art. 857) rights which the latter would have if he were
legatees. (Art. 1015) living or if he could have inherited. (Art. 970)
Article 1016. In order that the right of accretion may take place in a testamentary succession, it shall be necessary:
(1) That two or more persons be called to the same inheritance, or to the same portion thereof, pro indiviso; and
(2) That one of the persons thus called die before the testator, or renounce the inheritance, or be incapacitated to receive
it. (928a)
Article 1017. The words "one-half for each" or "in equal shares" or any others which, though designating an aliquot part,
do not identify it by such description as shall make each heir the exclusive owner of determinate property, shall not
exclude the right of accretion.
In case of money or fungible goods, if the share of each heir is not earmarked, there shall be a right of accretion. (983a)
Article 1022. In testamentary succession, when the right of accretion does not take place, the vacant portion of the
instituted heirs, if no substitute has been designated, shall pass to the legal heirs of the testator, who shall receive it with
the same charges and obligations. (986)
‣ It means “undivided” or “in common”, such that the result is co-ownership (regardless of equality or inequality)
b. The co-heirs are instituted with the specification that they share equally (“in equal shares”) or that they
have the same fractional sharing (“one-half or one-third, etc.) for each (Article 1017)
‣ Ex: ““I institute A, B, and C to one-half of my estate in equal shares.” or “I institute A, B, and C to one-half of
my estate, each of them to take one-third of that one-half.”
c. The co-heirs are instituted but their fractional sharings are unequal
‣ Ex: “I institute A, B, and C to one-half of my estate; of this one-half, A is to get 1/2; B, 1/3; and C, 1/6”.
‣ TOLENTINO: If unequal proportions, then it’s not pro-indiviso, because the sharing have to be equal, thus
accretion does not apply.
‣ BALANE:
‣ Tolentino is wrong. Not because he is stupid, because he is one of the greatest civilists, possibly second to
JBL Reyes, but because the comments of Tolentino on this was written under the old civil code.
‣ Pro-indiviso may include unequal shares. All that the law requires is that the institution be pro indiviso, which
means “as undivided” or “in common”. The term does not import equality. It would therefore seem that
accretion will occur even if the sharings are unequal, as long as the result of the institution is co-ownership.
In fact, it is implied that the shares do not have to be equal under Art. 1019 for it to be pro-indiviso. Under
Art. 1019, the portion that the heirs get by accretion, should be in the same proportion that they inherit. This
implies that if the proportion in which they inherit is unequal, what they would get by accretion is unequal
‣ Thus, if the shares are earmarked (designated), then accretion does NOT operate
2. RENUNCIATION, PREDECEASE, OR INCAPACITY OF ONE (OR MORE BUT NOT ALL) OF THE INSTITUTED HEIRS.
‣ Note that these are the same occasions for simple substitution.
3. SUBSTITUTION IS NOT PROVIDED FOR
‣ Accretion does NOT operate in testamentary succession, if there is substitution
‣ In testamentary succession, accretion is subordinate to substitution, if the testator has so provided (for substitution).
This is because substitution is the testator’s express intent, whereas accretion is merely his implied intent.
‣ If there is neither substitution nor accretion, the part left vacant will lapse into intestacy
Article 1018. In legal succession the share of the person who repudiates the inheritance shall always accrue to his co-
heirs. (981)
Article 968. If there are several relatives of the same degree, and one or some of them are unwilling or incapacitated to
succeed, his portion shall accrue to the others of the same degree, save the right of representation when it should take
place. (922)
‣ BUT, the representation here is with regard to the share of the heir supposedly subject to accretion.
Accretion may apply if there is representation with regard to the other heirs. In other words, the
representatives (to the legitime) may inherit by right of accretion (to the intestate portion)
‣ Ex: “A has three children, X,Y and Z. X has two children X1 and X2. Y and Z have no children/descendants. X
predeceases A. When A dies intestate, Y renounces his share. The intestate share (free portion, the legitimes
are excluded in accretion) of Y in the estate of A accrues in favour of Z and X1 and X2 (the latter two share
equally in what X would have gotten by right of representation)” . Thus, when A dies, X1 and X2 get the share
of X by representation (as to the legitime) and by accretion (as to the intestate portion, of the share of Y).
3. THE CO-HEIRS IN WHOSE FAVOR ACCRETION OCCURS MUST BE CO-HEIRS IN THE SAME CATEGORY AS THE EXCLUDED HEIR.
‣ In intestacy, it must accrue in favour of co-heirs of the same category because accretion presupposes that there are
multiple heirs who are called to the same inheritance (Art. 1015)
‣ Ex: “X dies intestate, survived by his wife Y and his brothers A, B, and C. If C renounces, his portion goes to A and B
by accretion. Y is not an accruing co-heir, not being of the same category or class.”
Article 1019. The heirs to whom the portion goes by the right of accretion take it in the same proportion that they inherit.
(n)
BALANE: This article merely makes explicit what is implied; that accretion should be proportional (to the proportion that the
heirs inherit). This article opens the possibility that accretion can operate in different proportions, as long as the institution is
pro indiviso.
EFFECT OF ACCRETION
Article 1020. The heirs to whom the inheritance accrues shall succeed to all the rights and obligations which the heir who
renounced or could not receive it would have had. (984)
‣ RULE: HEIR IN WHOSE FAVOR ACCRETION APPLIES SUCCEEDS TO ALL THE RIGHTS AND OBLIGATIONS WHICH THE
UNQUALIFIED HEIR WOULD HAVE RECEIVED
‣ EXCEPTION:
1. In testamentary succession, if the testator provides otherwise
Article 1021. Among the compulsory heirs the right of accretion shall take place only when the free portion is left to two
or more of them, or to any one of them and to a stranger.
Should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own right, and not by the right of
accretion. (985)
Article 1063. Property left by will is not deemed subject to collation, if the testator has not otherwise provided, but the
legitime shall in any case remain unimpaired. (1037)
‣ Under the first paragraph, accretion is restricted in its operation within the confines of the particular kind of succession
involved
‣ RULE: IN THE LEGITIME, NOTHING GOES BY ACCRETION. ACCRETION DOES NOT OPERATE IN COMPULSORY SUCCESSION
(ART. 1021, 2ND PAR.)
‣ Examples:
1. “A has three sons, X, Y, and Z. If X predeceases and he has no children or descendants, the legitime of the
legitimate children (which is 1/2 of the estate) is divided between Y and Z. They do not get the share of X by
accretion, but rather, by their own right as the remaining compulsory heirs, accretion does not operate. But
assuming that X has children, then his legitime will go to his children by right of representation.”
2. “A makes a will and institutes his 2 sons X and Y, and his brother Z to his entire estate. X has no children/
descendants. A dies, but X predeceases him. 1/2 of the estate will immediately go to Y, as his legitime (not by
accretion by by his own right in compulsory succession), the remaining 1/2 will be divided to X, Y and Z equally,
thus 1/6 each. But since X predeceases, then his 1/6 share will go to Y and Z equally, or 1/12 each, by accretion.”
Article 1024. Persons not incapacitated by law may succeed by will or ab intestato.
The provisions relating to incapacity by will are equally applicable to intestate succession. (744, 914)
‣ The general rule is in favor of capacity to succeed, as long as the successor has juridical personality.
Article 1025. In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the
succession opens, except in case of representation, when it is proper.
A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later
under the conditions prescribed in article 41. (n)
Article 41. For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered from the
mother's womb. However, if the foetus had an intra-uterine life of less than seven months, it is not deemed born if it dies
within twenty-four hours after its complete delivery from the maternal womb.
Article 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are
favorable to it, provided it be born later with the conditions specified in the following article.
BALANE: Both natural and juridical persons have the capacity to succeed (unless there are grounds for incapacity), but for
making a will, only natural persons are capacitated to make a will.
‣ Ex: “X has two sons—A and B—and B was disinherited by X. X died in 1985. In 1988 B begot a child. B’s child
cannot represent B in the succession to X.”
‣ How about in the reserva troncal where the reservatarios are not required to be alive when the prepositus dies?
Note that several cases say that the reservatarios inherit from the prepossess (Cases of Cano, Gonzales, etc)
‣ BALANE: NOT an exception, the reservatarios do not really inherit from the prepositus, they only inherit from “in
a manner of speaking”. They really inherit by virtue of the special law on the reserva troncal.
‣ This requirement applies regardless whether the institution is subject to a suspensive condition or term, but
may be subject to addition requirements
1. If institution subject to a suspensive condition
‣ Successor must also be living when condition happens (Article 1034, par. 3).
‣ Thus, in a conditional institution, the successor must be living both when the decedent dies and when the
condition happens.
Article 1026. A testamentary disposition may be made to the State, provinces, municipal corporations, private
corporations, organizations, or associations for religious, scientific, cultural, educational, or charitable purposes.
All other corporations or entities may succeed under a will, unless there is a provision to the contrary in their charter or
the laws of their creation, and always subject to the same. (746a)
‣ BALANE: You cannot institute a corporation to be organised and incorporated in the future, but you can place it in a
trust. In the case of a trust, you can give it to a trust, even if the beneficial owner of a trust is still inexistent This is a
consequence of Art. 777. This is similar to the law on donations. You also cannot donate to an unincorporated entity
because it is legally inexistent.
provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or
spouse, shall be valid;
(4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such
witness, spouse, parents, or children;
(5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness;
(6) Individuals, associations and corporations not permitted by law to inherit. (745, 752, 753, 754a)
Article 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to testamentary
provisions. (n)
Article 1031. A testamentary provision in favor of a disqualified person, even though made under the guise of an onerous
contract, or made through an intermediary, shall be void. (755)
‣ Thus, a person may be disqualified to succeed by will under these paragraphs but be entitled to a legitime or to an
intestate portion.
‣ BALANE: It is unfortunate that these paragraphs (with the exception of par. 3, which clearly limits its application to
“testamentary dispositions”) do not state with sufficient clarity that they apply solely to testamentary succession and
not to the legitime or intestacy. The Spanish Code did not suffer from this ambiguity. Par. 6 is misplaced here because
it provides for total disqualification. It should have been made a separate article.
‣ Rationale of Pars. 1-5: The law, in imposing this disqualification, seeks to prevent any possible abuse of the moral or
spiritual ascendancy for purposes of testamentary benefit.
‣ This disqualification is peremptory. No actual duress or influence need be shown; these are conclusively presumed.
‣ Proof of absence of duress or influence is irrelevant and will, anyway, not remove the disqualification.
‣ BALANE: The rationale behind the disqualification is the reason why par. 1-5 only apply to testamentary succession,
this is because undue influence has no place there because legitime and intestacy is provided for by law, not by the
testator.
‣ Inconsistencies in Art. 1027
‣ BALANE: This article is a hodgepodge of rules derived from various sources: different articles of the old Code (which
itself did not lay down consistent rules), the Code of Civil Procedure, and the ideas of the Code Commission.
‣ Why, for instance, do some paragraphs (2 and 4) disqualify relatives but another (5) doesn’t? In fact even the
degrees of relationship differ (2, 3, and 4).
‣ Why is the exception in par. 3 not also applied to pars. 1 and 5?
a. The will must have been executed during the testator’s last illness
b. The spiritual ministration must have been extended during the last illness
c. The will must have been executed during or after the spiritual ministration
‣ BALANE:
‣ What is contemplated here is a deathbed will. Note that the sequence is important here, the will must be excited
during or after (not before) the spiritual ministration to fall under this disqualification
‣ A literal reading of the paragraph does not clearly indicate that the will must have been made during the testator's
last illness, nor that the spiritual ministration be anterior to, or simultaneous with, the making of the will. Again, we
have here a case of clumsy draftsmanship.
‣ Note that notwithstanding the seemingly restrictive terms of this disqualification, it applies not only to Christian
priests, pastors, ministers, and so forth, but also to all individuals belonging to other religions, sects, or cults,
whose office or function it is to extend the peculiar spiritual ministrations of their creed.
2. RELATIVES OF THE PRIESTS OR RELIGIOUS MINISTERS
‣ The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community,
organization, or institution to which such priest or minister may belong
‣ Fourth degree of relationship—The computation is made in accordance with Articles 963-969
‣ The purpose of this disqualification is to prevent indirect violations or circumventions of Par. (1)
‣ NO, Art. 1027 doesn’t expressly include the spouse of the minister, because this involves incapacity to succeed,
thus it is strictly construed against incapacity.
‣ BALANE: Certainly, the mischief sought to be averted can be perpetrated by the spouse. The code commission
forgot to include the spouse because they forgot that while the Catholic priesthood is celibate, the priesthood or
ministry of many other denominations or religions. The disposition in favour of a spouse can still be void by reason
of undue influence, but it must be proven, no conclusive presumption here.
3. GUARDIANS
‣ A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the
guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision
made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall
be valid
‣ For this disqualification to apply, the will must have been executed by the ward during the effectivity of the
guardianship, which is at anytime between the commencement of the guardianship and its dissolution.
‣ BALANE: For guardians over the property, the guardianship is terminated upon final approval of the accounts. For
guardians over the person, it is terminated upon order of the court.
‣ Note that the terms of this prohibition limit it to guardians over the property.
‣ BALANE: In view, however, of the purpose of the prohibition, the argument that this prohibition should apply as well
to guardians over the person is most tenable.
‣ EXCEPTION: A guardian who happens to be an ascendant, descendant, brother, sister, or spouse of the ward-
testator is excluded from the prohibition.
‣ BALANE: Curiously, this exception is not allowed in the other paragraphs. Why is this exception not extended to
the priest? Also what about the relatives of the guardian, why are they not disqualified as well like the relatives of
the priest?
4. ATTESTING WITNESSES
‣ Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such
witness, spouse, parents, or children
‣ ‘Taking care” means medical attendance with some regularity or continuity, because it is in such circumstances
that the possibility of duress or influence exists.
‣ Obviously, the pharmacist of “Farmacia Patakbuhin” who only happens to fill a prescription does not fall under the
interdiction.
‣ EXCEPTION: The State, as a juridical entity, can inherit by intestacy, as the last intestate heir.
‣ BALANE: Note that dispositions subject to an illegal condition (such as to commit a crime) is considered not written,
thus the condition is void but disposition is effective. If, however, the condition has already been fulfilled (because the
heir committed the crime) the disposition will now be void under Art. 1028 in relation to Art. 739 (2)
9. PUBLIC OFFICERS
‣ Those made to a public officer or his wife, descendants and ascendants, by reason of his office
10. DISQUALIFIED PERSONS, UNDER THE GUISE OF AN ONEROUS CONTRACT
‣ A testamentary provision in favor of a disqualified person, even though made under the guise of an onerous contract,
or made through an intermediary, shall be void (Art. 1031)
‣ BALANE: What cannot be done by direction cannot be done by indirection.
‣ The simulation must be proved, for this to apply.
‣ Art. 1031 provides that the disposition is void, hence ineffective both as to the intended beneficiary and the
intermediary. The intestate heirs, to whom the property would go, have the right to claim the nullity.
Article 1029. Should the testator dispose of the whole or part of his property for prayers and pious works for the benefit
of his soul, in general terms and without specifying its application, the executor, with the court's approval shall deliver
one-half thereof or its proceeds to the church or denomination to which the testator may belong, to be used for such
prayers and pious works, and the other half to the State, for the purposes mentioned in article 1013. (747a)
Article 1030. Testamentary provisions in favor of the poor in general, without designation of particular persons or of any
community, shall be deemed limited to the poor living in the domicile of the testator at the time of his death, unless it
should clearly appear that his intention was otherwise.
The designation of the persons who are to be considered as poor and the distribution of the property shall be made by
the person appointed by the testator for the purpose; in default of such person, by the executor, and should there be no
executor, by the justice of the peace, the mayor, and the municipal treasurer, who shall decide by a majority of votes all
questions that may arise. In all these cases, the approval of the Court of First Instance shall be necessary.
The preceding paragraph shall apply when the testator has disposed of his property in favor of the poor of a definite
locality. (749a)
DISPOSITION FOR PRAYERS AND PIOUS WORKS; APPLICABILITY AND RULE IN ART. 1029
‣ Requisites:
1. Disposition for prayers and pious works for the benefit of the testator’s soul
‣ BALANE: Note that there is no institute heir here, and thus the disposition should be void, but the law considers it valid
‣ Apportionment of the disposition or its proceeds:
‣ One-half to the church or denomination to which the testator belonged
‣ BALANE: Where did the state come from? Why the State? Under what rubric does the State fall: Prayers? Pious works?
‣ If there is no designated locality, the beneficiaries shall be the poor of the testator's domicile, unless excluded by the
testator in his will.
‣ BALANE: What is meant by the testator’s domicile? What political subdivision will this refer to? The country? the
region? the city or the barangay?
‣ The determination of the individual beneficiaries within the class designated by the testator shall be made by: (in the order
of preference):
2. Executor or administrator
3. Committed composed of the justice of the peace (now the MTC) , the mayor, and the municipal treasurer
‣ BALANE: The Committee specified in this article will, in fact, not have occasion to function, because if there is a will,
there will always be an executor, if not, then the court will simply appoint an administrator.
‣ Paragraphs 1, 2, 3, 5 and 6 are the same as in disinheritance. Thus, there are only 3 new grounds, paragraphs 4, 7, and 8.
‣ BALANE: Note that paragraph 4 is inoperative and has no application because there is no law penalizing misprision of
murder. No law has been passed obligating a person to report to the authorities the fact of the testator’s death.
‣ Thus, unworthiness and disinheritance have identical effects. They both apply to all kinds of heirs. Unworthiness is
disinheritance imposed by law.
‣ That unworthiness deprives the unworthy heir even of the legitime is clear from Article 1035
‣ BALANE: If these grounds are present, the law itself disinherits the heir. This is legal disinheritance. The effect is exactly
the same as disinheritance, which is total exclusion from the inheritance
NEW GROUNDS FOR UNWORTHINESS TO SUCCEED (THAT ARE NOT GROUNDS FOR DISINHERITANCE)
1. Any person who by the same means prevents another from making a will, or from revoking one already made, or who
supplants, conceals, or alters the latter's will;
Common 1. Guilty of attempt on the life of testator, his spouse, descendants, or ascendants
Grounds
2. Groundless/false accusation of the testator of a crime punishable by imprisonment of 6 years or
more
3. Causes the testator to make or change a will by fraud, violence, intimidation or undue influence
4. Conviction for adultery or concubinage with testator’s spouse (Except for disinheritance of
spouse)
RESTORATION TO CAPACITY
Article 1033. The cause of unworthiness shall be without effect if the testator had knowledge thereof at the time he made
the will, or if, having known of them subsequently, he should condone them in writing. (757a)
Article 922. A subsequent reconciliation between the offender and the offended person deprives the latter of the right to
disinherit, and renders ineffectual any disinheritance that may have been made. (856)
1. A written condonation, or
2. The execution by the offended party of a will with knowledge of the cause of unworthiness
‣ BALANE: Is it NOT enough that the offended party execute a will with knowledge of the existence of the cause of
unworthiness. The better opinion seems to be that the will must also either institute the unworthy heir or restore
him to capacity. Making a will is not enough, there must be a written pardon in the will itself, or in any other
written instrument.
UNWORTHINESS DISINHERITANCE
‣ The problem then arises: how is the disqualified heir restored to capacity?
‣ BALANE: According to commentators, if heir is disqualified due to similar grounds, disinheritance should
prevail over unworthiness, meaning reconciliation also erases the effects of unworthiness.
‣ BALANE: The most acceptable reconciliation seems to be the following:
1. If Offended Party does not make a will subsequent to the occurrence of the (common) cause:
‣ Apply Article 1033—Unworthiness sets in ipso facto and written condonation is necessary to restore to capacity
2. If Offended Party makes a will subsequent to the occurrence of the (common) cause:
a. If he knew of the cause
‣ If he disinherits—Apply Article 922
‣ If will is silent—This is disputed, but the better opinion seems to be that the unworthiness stays.
Article 1034. In order to judge the capacity of the heir, devisee or legatee, his qualification at the time of the death of the
decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of article 1032, it shall be necessary to wait until final judgment is rendered, and in
the case falling under No. 4, the expiration of the month allowed for the report.
If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be
considered. (758a)
‣ Generally, capacity of the heir (devise, or legatee) to succeed, should be determined at the time of the decedent’s
death.
‣ Because that is when successional rights vest (Article 777)
‣ EXCEPT:
1. If institution is subject to a suspensive condition: Capacity of the heir should be determined at the time of the
decedent’s death AND at the time of the happening of the condition
2. If heir is unworthy to succeed and final judgment is a requisite to the ground of unworthiness: Capacity of
the heir should be determined at the time of final judgment
REPRESENTATION IN UNWORTHINESS
Article 1035. If the person excluded from the inheritance by reason of incapacity should be a child or descendant of the
decedent and should have children or descendants, the latter shall acquire his right to the legitime.The person so
excluded shall not enjoy the usufruct and administration of the property thus inherited by his children. (761a)
‣ Remember that unworthiness (under incapacity to succeed) is one of the three occasions for representation to operate
‣ Representation in unworthiness (as also in predecease and disinheritance) extends not only to the legitime, but also to
whatever portion in intestate succession the person represented may have been entitled to.
‣ BALANE: The first paragraph of this article should not be taken to imply that representation is confined to the legitime.
‣ Remember also that there is representation in the collateral line for intestacy—If the unworthy heir is a brother or sister,
his children (nephews and nieces of the decedent) will represent.
Article 1036. Alienations of hereditary property, and acts of administration performed by the excluded heir, before the
judicial order of exclusion, are valid as to the third persons who acted in good faith; but the co-heirs shall have a right to
recover damages from the disqualified heir. (n)
Article 1037. The unworthy heir who is excluded from the succession has a right to demand indemnity or any expenses
incurred in the preservation of the hereditary property, and to enforce such credits as he may have against the estate. (n)
Article 1038. Any person incapable of succession, who, disregarding the prohibition stated in the preceding articles,
entered into the possession of the hereditary property, shall be obliged to return it together it its accessions.
He shall be liable for all the fruits and rents he may have received, or could have received through the exercise of due
diligence. (760a)
Article 1040. The action for a declaration of incapacity and for the recovery of the inheritance, devise or legacy shall be
brought within five years from the time the disqualified person took possession thereof. It may be brought by any one
who may have an interest in the succession. (762a)
‣ But, the co-heirs have the right to recover damages from the excluded heir
‣ The validity of the alienation is determined by the good faith or bad faith of the transferee, not of the transferor (the
excluded heir).
‣ For the transferee to be in good faith, he must have acquired the thing for value and without knowledge of the
defect of the transferor’s title.
‣ Thus, a donee cannot claim the benefit of this provision, since he did not acquire for value.
‣ BALANE: This applies the doctrine of innocent purchaser for value without prejudice to the right to damages of the
prejudiced heirs against the incapacitated heir.
2. IN CASE OF EXPENSES INCURRED IN THE PRESERVATION OF THE HEREDITARY PROPERTY OR CREDITS AGAINST THE ESTATE
‣ Disqualfied heir has right to demand indemnity or reimbursement of the expenses, or to enforce his claims of credit
against the estate
‣ Good faith/bad faith is immaterial because what are involved are necessary expenses
‣ The disqualified heir here is a possessor in bad faith, thus, the law applies to him the rules on possession in bad faith
(Art. 549)
‣ What is the period for action to recover (the property unlawfully possessed by the disqualified heir?
‣ Five (5) years from the time the disqualified heir took possession of the property
‣ This is also the period when to bring an action for the declaration of incapacity.
Article 1039. Capacity to succeed is governed by the law of the nation of the decedent. (n)
‣ Note that it is the national law of the decedent, NOT that of the heir that governs capacity to succeed.
‣ This is the same principle in Article 16, par. 2. (regarding intestate and testamentary successions, both with respect to
the order of succession and to the amount of successional rights and to the intrinsic validity of the testamentary
provisions)
Article 1041. The acceptance or repudiation of the inheritance is an act which is purely voluntary and free. (988)
Article 1054. Should there be several heirs called to the inheritance, some of them may accept and the others may
repudiate it. (1007a)
‣ BALANE: It should be noted that the rules for acceptance are much more liberal than those for repudiation. This is
because acceptance is beneficial, whereas repudiation is prejudicial to the successor. Note that “repudiation” is
synonymous with “renunciation”, but the latter is easier to pronounce.
‣ Based on the principle that no one can be required to accept a benefit Non potest liberalitas nolenti adquiri.
‣ “Liberality cannot be acquired by someone unwilling”
‣ If there are several heirs, their right to accept or right corresponds to the aliquot share to which they are entitled.
Article 1042. The effects of the acceptance or repudiation shall always retroact to the moment of the death of the
decedent. (989)
‣ Based on the principle that the moment of death is the time succession vests (Art. 777)
‣ Consequences of Retroactivity:
1. Acceptance
‣ The successor will be deemed to have owned and possessed the property from the precise moment of the
decedent’s death.
2. Renunciation
‣ The renouncer is deemed never to have owned or possessed the property.
‣ Consequently, the substitute, co-heir, or intestate heir who gets the property in default of the renouncer is deemed
to have owned and possessed it from the moment of the decedent’s death.
3. Conditional Institutions
‣ The principle of retroactivity is not overridden even if the institution is subject to a suspensive condition.
‣ Upon the happening of the condition, the property passes to the heir but with retroactive effect.
‣ This is the same principle enunciated in conditional obligations (Article 1187). Similarly, if the condition does
not happen, the property goes to the appropriate successor, with the same retroactive effect.
‣ However, the provisions of Art. 880 should be complied with; the property should be placed under administration
during the interim.
‣ BALANE: Nothing is vested to the renouncing heir, he is deemed never to have acquired anything by virtue of
succession. Correlatively, the person who acquires and accepts it as a consequence of the renunciation is deemed to
have acquired it from the moment of the decedent’s death.
Article 1043. No person may accept or repudiate an inheritance unless he is certain of the death of the person from whom
he is to inherit, and of his right to the inheritance. (991)
Article 905. Every renunciation or compromise as regards a future legitime between the person owing it and his
compulsory heirs is void
Article 1347. No contract may be entered into upon future inheritance except in cases expressly authorized by law.
‣ Heir must have knowledge and certainty of the following facts, before he can accept or renounce:
‣ BALANE: Acceptance or renunciation must be made knowingly. Unless the successor has knowledge of the two things
mentioned in this article, his acceptance or renunciation is not effective.
‣ Remember that renunciation of future inheritance is void. It can only be made after the decedent’s death. (Art. 905, 1347)
Article 1044. Any person having the free disposal of his property may accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons may be accepted by their parents or guardians. Parents or
guardians may repudiate the inheritance left to their wards only by judicial authorization.
The right to accept an inheritance left to the poor shall belong to the persons designated by the testator to determine the
beneficiaries and distribute the property, or in their default, to those mentioned in article 1030. (992a)
Article 1878. Special powers of attorney are necessary in the following cases:
(13) To accept or repudiate an inheritance;
Article 1045. The lawful representatives of corporations, associations, institutions and entities qualified to acquire
property may accept any inheritance left to the latter, but in order to repudiate it, the approval of the court shall be
necessary. (993a)
Article 1046. Public official establishments can neither accept nor repudiate an inheritance without the approval of the
government. (994)
Article 1047. A married woman of age may repudiate an inheritance without the consent of her husband. (995a)
Article 1048. Deaf-mutes who can read and write may accept or repudiate the inheritance personally or through an agent.
Should they not be able to read and write, the inheritance shall be accepted by their guardians. These guardians may
repudiate the same with judicial approval. (996a)
a. Personally
b. Through agent (by special power of attorney)
‣ A married person of age and not incapacitated for any reason may accept or renounce an inheritance without his or
her spouse’s consent.
‣ Repudiation is an act of alienation of property which must pass the court’s scrutiny in order to protect the interest of
the ward.
‣ For deaf-mutes:
‣ But note that these authorized individuals can only accept, not reject the grant
4. JURIDICAL PERSONS
‣ For corporations, associations, institutions and entities qualified to acquire property
5. GOVERNMENT
‣ Public official establishments can neither accept nor repudiate an inheritance without the approval of the
government
A tacit acceptance is one resulting from acts by which the intention to accept is necessarily implied, or which one would
have no right to do except in the capacity of an heir.
Acts of mere preservation or provisional administration do not imply an acceptance of the inheritance if, through such
acts, the title or capacity of an heir has not been assumed. (999a)
Article 1057. Within thirty days after the court has issued an order for the distribution of the estate in accordance with the
Rules of Court, the heirs, devisees and legatees shall signify to the court having jurisdiction whether they accept or
repudiate the inheritance.
If they do not do so within that time, they are deemed to have accepted the inheritance. (n)
KINDS OF ACCEPTANCE
1. EXPRESS
‣ Can be done either by:
a. Public document
b. Private writing
2. TACIT
‣ One resulting from acts by which the intention to accept is necessarily implied, or which one would have no right to do
except in the capacity of an heir.
a. If the heirs sells, donates, or assigns his right to a stranger, or to his co-heirs, or to any of them
‣ Onerous or gratuitous conveyance in favor of one, some, or all of his co-heirs, or to a stranger.
‣ Disposition is an act of ownership, which necessarily implies that the heir has accepted the inheritance.
b. If the heir renounces the same, even though gratuitously, for the benefit of one or more of his co-heirs
‣ Gratuitous renunciation in favor of one or some (but not all) of his co-heirs.
‣ This is not in fact a renunciation but a conveyance in favor of the co-heirs specified.
‣ It partakes of the nature of donation and therefore must conform to the prescribed form for donations
‣ If the gratuitous “renunciation” is in favor of all the co-heirs BUT in proportions different from those in which
they would receive by accretion, it is still a conveyance and must be treated as a tacit acceptance.
‣ Also, if the “renunciation” in favor of one or some of the co-heirs is for an onerous consideration, there is an
acceptance
c. If he renounces it for a price in favor of all his co-heirs indiscriminately; but if this renunciation should be
gratuitous, and the co-heirs in whose favor it is made are those upon whom the portion renounced should
devolve by virtue of accretion, the inheritance shall not be deemed as accepted
‣ Onerous renunciation in favor of all the co-heirs indiscriminately
‣ This is not in fact a renunciation but a sale of his portion and therefore constitutes a tacit acceptance.
‣ But, if it's a gratuitous renunciation in favor of the co-heirs indiscriminately, it is a true renunciation and cannot
be treated as a tacit acceptance.
‣ Indiscriminate renunciation means a renouncement, gratuitously made, in favor of all the co-heirs who
would get the renounced portion by virtue of accretion.
3. IMPLIED
‣ Acceptance by inaction
‣ Once the court issues an order for the distribution of the estate, the heirs must accept or repudiate the inheritance
within 30 days, if they fail to do so, they are deemed to have accepted it.
‣ BALANE: The law interprets silence in your favour, silence means acceptance in this case
Article 1051. The repudiation of an inheritance shall be made in a public or authentic instrument, or by petition presented
to the court having jurisdiction over the testamentary or intestate proceedings. (1008)
FORMS OF REPUDIATION
‣ Either by:
Article 1052. If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the court to
authorize them to accept it in the name of the heir.
The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their credits. The excess,
should therebe any, shall in no case pertain to the renouncer, but shall be adjudicated to the persons to whom, in
accordance with the rules established in this Code, it may belong. (1001)
Article 1177. The creditors, after having pursued the property in possession of the debtor to satisfy their claims, may
exercise all the rights and bring all the actions of the latter for the same purpose, save those which are inherent in his
person; they may also impugn the acts which the debtor may have done to defraud them. (1111)
Article 1313. Creditors are protected in cases of contracts intended to defraud them. (n)
‣ This is an instance of accion pauliana, which is the right given to creditors to impugn or set aside contracts, transactions,
or dispositions of their debtors which will prejudice or defraud them.
Article 1053. If the heir should die without having accepted or repudiated the inheritance his right shall be transmitted to
his heirs. (1006)
Article 1054. Should there be several heirs called to the inheritance, some of them may accept and the others may
repudiate it. (1007a)
‣ Therefore, the right of the heir who dies before accepting or renouncing is already vested and is transmitted to the
heir’s heirs.
‣ The right to the inheritance itself forms part of the inheritance of the heir (Articles 774 & 776) and therefore, the heir of the
heir can exercise the right granted by this article only if he (the heir’s heir) accepts his own predecessor’s inheritance.
‣ Right to renounce transmitted is pro-rata if there are several heirs, (even if transmitted to the heir’s heirs)
‣ Ex: “If X dies and Y, his heir, himself dies before accepting or renouncing the inheritance, leaving A, B, and C as his
own heirs—A, B, and C each has the right to accept or renounce his corresponding one-third interest in whatever Y
was entitled to inherit from X.
‣ BALANE: Should one or more of the heirs renounce, to whom will the repudiated portion go? To the ones who accept,
by accretion? Or to the intestate heirs of the decedent whose inheritance the predecessor of the heirs was unable to
accept or renounce?
Article 1055. If a person, who is called to the same inheritance as an heir by will and ab intestato, repudiates the
inheritance in his capacity as a testamentary heir, he is understood to have repudiated it in both capacities.
Should he repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he may still accept it in the
latter capacity. (1009)
Article 955. Any compulsory heir who is at the same time a legatee or devisee may waive the inheritance and accept the
legacy or devise, or renounce the latter and accept the former, or waive or accept both.
‣ BALANE:
‣ The rationale is that while the testamentary disposition is the express will of the testator, intestacy is only his implied
will. Thus, one who renounces the express will is deemed to have renounced the implied also, but not the other way
around.
Article 1056. The acceptance or repudiation of an inheritance, once made, is irrevocable, and cannot be impugned,
except when it was made through any of the causes that vitiate consent, or when an unknown will appears. (997)
‣ RULE: Generally, the acceptance or repudiation of an inheritance, once made, is irrevocable, and cannot be
impugned
‣ BALANE: There is a principle of irrevocability, because otherwise, it can cause chaos, if the heir keeps changing his
mind
‣ EXCEPT: In cases of:
1. Vitiated Consent
‣ In case of violence, intimidation, undue influence, mistake, and fraud.
‣ The new will (assuming it is valid and admitted to probate) reopens the whole affair and will call for a new
acceptance or renunciation.
Article 1058. All matters relating to the appointment, powers and duties of executors and administrators and concerning
the administration of estates of deceased persons shall be governed by the Rules of Court. (n)
Article 1059. If the assets of the estate of a decedent which can be applied to the payment of debts are not sufficient for
that purpose, the provisions of articles 2239 to 2251 on Preference of Credits shall be observed, provided that the
expenses referred to in article 2244, No. 8, shall be those involved in the administration of the decedent's estate. (n)
Article 1060. A corporation or association authorized to conduct the business of a trust company in the Philippines may
be appointed as an executor, administrator, guardian of an estate, or trustee, in like manner as an individual; but it shall
not be appointed guardian of the person of a ward. (n)
‣ See Rules 78-90 of the Rules of Court for Art. 1058 and 1060
‣ See Rules of Concurrence and Preference of Credits for Art. 1059
DEFINITION OF COLLATION
‣ Three components of Collation
1. Collation as Computation.
‣ This is a simple accounting or arithmetical process, whereby the value of all donations inter vivos made by the
decedent is added to his available assets in order to arrive at the value of the net hereditary estate.
‣ This process has been discussed as the third step under Article 908
2. Collation as Imputation
‣ This is the process by which donations inter vivos made by the decedent are correspondingly charged either to the
donee’s legitime or against the disposable portion.
3. Collation as Return
‣ This takes place when a donation inter vivos is found to be inofficious (exceeds the disposable portion) and so
much of its value as is inofficious is returned to the decedent’s estate to satisfy the legitimes.
‣ BALANE: The biggest problem about collation is the term; or more precisely, the several meanings which the term carries.
Basically, collation, as used in this section, carries three meanings. The articles in this section swing from one meaning to
an- other. Hence, it is necessary—for a proper understanding of the articles—to understand the sense in which the word
collation is used in each article. These three senses are related but distinct.
COLLATION AS COMPUTATION
Article 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate
any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation,
or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the
account of the partition. (1035a)
Article 908. To determine the legitime, the value of the property left at the death of the testator shall be considered,
deducting all debts and charges, which shall not include those imposed in the will.
To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to
collation, at the time he made them. (818a)
Article 1067. Expenses for support, education, medical attendance, even in extraordinary illness, apprenticeship, ordinary
equipment, or customary gifts are not subject to collation. (1041)
Article 1071. The same things donated are not to be brought to collation and partition, but only their value at the time of
the donation, even though their just value may not then have been assessed.
Their subsequent increase or deterioration and even their total loss or destruction, be it accidental or culpable, shall be
for the benefit or account and risk of the donee. (1045a)
Article 1072. In the collation of a donation made by both parents, one-half shall be brought to the inheritance of the
father, and the other half, to that of the mother. That given by one alone shall be brought to collation in his or her
inheritance. (1046a)
‣ But Art. 1071 and 1072 also use collation in the sense of imputation
‣ This is exactly the same thing that is referred to in Art. 908, par. 2., as the third step in the process of computing the
net hereditary estate, as laid down in Article 908
‣ This presupposes that you have already inventoried the assets and paid the debts of the estate.
‣ The process, as already pointed out, is purely arithmetical; it is merely a paper computation, you don’t determine
yet if the donations are inofficious at this stage
‣ BALANE: Art. 1061 seems to suggest that only donations inter vivos to compulsory heirs need be computed. This
is not so. Donations to strangers should also computed, because if not, then you are opening the door to
circumvention of the legitime. Also Art. 1061 seems to suggest that it applies only if there is only one compulsory
heir, but this is erroneous.
‣ EXCEPTION: Expenses for support, education, medical attendance, even in extraordinary illness,
apprenticeship, ordinary equipment, or customary gifts are NOT included in the computation of the net
hereditary estate (Art. 1067)
‣ BALANE: These are not donations, not being based on liberality, these are based on the parent’s legal obligation to
support their children The rationale also is that it would be extremely impractical, if not impossible, to make an
accounting of all these items.
‣ Note that the general coverage of support is defined in Article 194 of the Family Code. BUT for purposes of this
article, however, support has a more restricted meaning: it does not include expenses for the recipient’s
professional, vocational, or other career, because those items are governed by Article 1068
2. THE VALUE OF THE PROPERTY DONATED IS BASED ON THE TIME THE DONATION WAS MADE (ART. 1071)
‣ Since in donations, ownership transfers at the time the donation is perfected.
‣ Thus, any subsequent increase in value is for the donee’s benefit, and any decrease is for his account.
3. IN CASE OF JOINT DONATIONS (BY SPOUSES IN ACP OR CPG), IT WILL BE TREATED, UPON THE DISSOLUTION OF THE
PROPERTY REGIME, AS PERTAINING IN EQUAL SHARES TO THE ESTATE OF EACH (ART. 1072)
‣ “Joint” presupposes either a regime of absolute community or of conjugal partnership between the donor spouses
‣ Obviously, the donation by one spouse alone, will be of separately-owned property and should be treated as such.
COLLATION AS IMPUTATION
Article 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly provided, or if
the donee should repudiate the inheritance, unless the donation should be reduced as inofficious. (1036)
Article 910. Donations which an illegitimate child may have received during the lifetime of his father or mother, shall be
charged to his legitime.
Should they exceed the portion that can be freely disposed of, they shall be reduced in the manner prescribed by this
Code. (847a)
Article 1063. Property left by will is not deemed subject to collation, if the testator has not otherwise provided, but the
legitime shall in any case remain unimpaired. (1037)
Article 1064. When the grandchildren, who survive with their uncles, aunts, or cousins, inherit from their grandparents in
representation of their father or mother, they shall bring to collation all that their parents, if alive, would have been obliged
to bring, even though such grandchildren have not inherited the property.
They shall also bring to collation all that they may have received from the decedent during his lifetime, unless the testator
has provided otherwise, in which case his wishes must be respected, if the legitime of the co-heirs is not prejudiced.
(1038)
Article 1065. Parents are not obliged to bring to collation in the inheritance of their ascendants any property which may
have been donated by the latter to their children. (1039)
Article 1066. Neither shall donations to the spouse of the child be brought to collation; but if they have been given by the
parent to the spouses jointly, the child shall be obliged to bring to collation one-half of the thing donated. (1040)
Article 1068. Expenses incurred by the parents in giving their children a professional, vocational or other career shall not
be brought to collation unless the parents so provide, or unless they impair the legitime; but when their collation is
required, the sum which the child would have spent if he had lived in the house and company of his parents shall be
deducted therefrom. (1042a)
Article 1069. Any sums paid by a parent in satisfaction of the debts of his children, election expenses, fines, and similar
expenses shall be brought to collation. (1043a)
Article 1070. Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit, shall not be reduced as
inofficious except insofar as they may exceed one-tenth of the sum which is disposable by will. (1044)
Article 1071. The same things donated are not to be brought to collation and partition, but only their value at the time of
thedonation, even though their just value may not then have been assessed.
Their subsequent increase or deterioration and even their total loss or destruction, be it accidental or culpable, shall be
for the benefit or account and risk of the donee. (1045a)
Article 1072. In the collation of a donation made by both parents, one-half shall be brought to the inheritance of the
father, and the other half, to that of the mother. That given by one alone shall be brought to collation in his or her
inheritance. (1046a)
Article 1073. The donee's share of the estate shall be reduced by an amount equal to that already received by him; and
his co- heirs shall receive an equivalent, as much as possible, in property of the same nature, class and quality. (1047)
Article 1074. Should the provisions of the preceding article be impracticable, if the property donated was immovable, the
co-heirs shall be entitled to receive its equivalent in cash or securities, at the rate of quotation; and should there be
neither cash or marketable securities in the estate, so much of the other property as may be necessary shall be sold at
public auction.
If the property donated was movable, the co-heirs shall only have a right to select an equivalent of other personal
property of the inheritance at its just price. (1048)
‣ This was the norman conquest of England. It was a battle between the Norman-French army of Duke William II and the
English Army of King Harold. Normans won
‣ BALANE: If you don’t know this you’re stupid and ignorant. Don’t look for this in your stupid machines! Legal history!
RULES IN DETERMINING WHICH DONATIONS ARE CHARGED TO THE LEGITIME OR THE FREE PORTION
1. DONATIONS INTER VIVOS TO COMPULSORY HEIRS ARE IMPUTED TO THE HEIR’S LEGITIME
‣ See Art. 1062, 909, 910, 1069, this is the general rule, they are considered as an advance on the legitime.
‣ These include any sums paid by a parent in satisfaction of the debts of his children, election expenses, fines, and
similar expenses (Art. 1069)
b. If the donee renounces the inheritance, predeceases or is incapacitated to succeed (provided there is no
representation)
‣ Because in this case the donee gives up his status as a compulsory heir and therefore cannot be considered
as one.
c. The expenses incurred by the parents for the child’s professional, vocational, or other career (Art. 1068)
‣ These are courses beyond the secondary level
‣ But they must not be in officious, meaning it does not impair the legitimes
‣ BALANE: By implication these are computed as part of the net hereditary estate (collation in the computation
sense) because these are no longer covered by the parent’s legal obligation to support. But these are not
imputed to the legitime because the law provides so
‣ EXCEPTION TO EXCEPTION: The expenses for such will still be charged to their legitimate if the parents
provide that it will be so charged
‣ Should the parents provide that it will charged to the legitime, the child is entitled, to deduct from the said
amount the sum corresponding to what his parents would have spent on him had he stayed at home and
loafed.
‣ Pag may galit yung magulang mo sayo, but the child has the right to deduct the expenses the parent would
have incurred if he would have made tambay at home
d. The excess amount of donations inter vivos which exceed the legitime of the donee
‣ BALANE: Supposing the compulsory heir received a donation inter vivos from the decedent but the value of the
donation exceeds the donee's legitime?—The donation will be imputed to the donee’s legitime to the extent of
the legitime’s value and the excess, to the free portion.
e. Wedding gifts by parents and ascendants to children or descendants consisting of jewelry, clothing, and
outfit, if they do not exceed 1/10 of the estate (Art. 1070)
‣ Note that the gifts must be jewelry, clothing and outfit only, not other stuff such as real property
‣ Under Art. 1070 the value of such wedding gifts cannot go beyond one-tenth of the free portion of the donor’s
estate.
‣ BALANE: This is very confusing, even Manresa does not understand it. Art. 1070 says that if it is inofficious
(meaning it exceeds 1/10 of the free portion), it needs to be reduced. But why should you reduce it simply
because it is inofficious? after all you can donate up to the extent of the entire free portion. Thus, according to
Manresa (whcih I agree with) if the donation goes beyond 1/10 of the estate, the excess is imputed to the
legitime, but the 1/10 is still imputed to the free portion
‣ What if the compulsory heir is a grandchild who inherits by right of representation?
‣ See Art. 1064, this contemplates a situation where the grandchildren (of the decedent) are inheriting by
representation concurrently with children (uncles and aunts of the grandchildren) who are inheriting in their own
right, or with other grandchildren (cousins of the grandchildren).
‣ Rules in Art. 1062 will also apply in this case (in relation to the rules of Art. 1064, 1063), in that the following
dispositions will be imputed to the Grandchild’s legitime:
a. Whatever the parent whom they are representing would have been obliged to collate
‣ This covers donations inter vivos or testamentary dispositions (Art. 1063), if the testator provides it will
be charged to the legitime) by the decedent to the parents
‣ BALANE: This is logical. Imputation is required even if the heir in this case is not the recipient of the
donation, because he is merely representing his parent to the legitime
b. Whatever they themselves have received from the grandparent by gratuitous title
‣ This is also subject to the same rules and exceptions laid down in Article 1062
‣ BALANE: Not logical but fair, while he is merely inheriting by representation of his parent, the
dispositions given to the heir themselves must be imputed to the legitime
‣ What about joint donations of parents (governed by ACP or CPG) in favor of their children?
‣ See Art. 1072, A joint donation by the parents will be treated, upon the dissolution of the property regime, as
pertaining in equal shares to the estate of each.
2. DONATIONS INTER VIVOS AND TESTAMENTARY DISPOSITIONS TO STRANGERS ARE IMPUTED TO THE FREE PORTION
‣ See Art. 909, obviously they are not imputed to the legitime, because they are not compulsory heirs
‣ This covers the situation where:
a. The decedent donates to his grandchild while the parents of such grandchild are still alive when the
decedent dies, meaning the grandchild is not a compulsory heir (Art. 1065)
‣ A parent (who are the compulsory heirs of the decedent) is NOT obliged to bring to collation any property
which may have been donated by the decedent to their children (the grandchild of the decedent).
‣ The donation to the grandchild (not being compulsory heirs in this case) should be imputed to the free portion,
since it is a donation to a stranger.
‣ What if the parent dies, and the grandchild, who was a recipient of such donations, now inherits the legitimate
by right of representation? Governed by Art. 1062 and 1064 above
‣ BUT, if the donation is made to the spouses jointly, one-half belongs to the donor’s child and should be treated
in accordance with Article 1062 and the other half is the property of the donor’s son- or daughter-in-law and
should be treated as a donation to a stranger.
‣ Needless to say, this presumption of equality of aliquot shares will yield to a different designation by the
donor.
‣ BALANE: Why? because, if you impute it to the legitime, then the testamentary disposition will be useless
‣ EXCEPTION: If the testator provides otherwise
‣ Should the testator provide that the testamentary disposition will be charged to the legitime, testamentary
disposition in favor of the heir will be merged with his legitime.
‣ Art. 1064 will also apply in case the grandchild is the compulsory heir inheriting by representation, the
testamentary dispositions in favor of the parent (of the grandchild who he will be representing) will be charged to
the legitime if the testator provides for it.
‣ Same rule with collation in the sense of computing the value of the net hereditary estate
‣ Any appreciation or depreciation of the thing after that time should be for the donee’s account, since the donation
transfers ownership to him.
‣ BALANE: This is logical because the property leaves the patrimony of the donor at the time the donation is perfected
UNLESS:
a. Made to strangers;
3. Wedding gifts by parents and ascendants to children e. Which are expenses incurred by the parents for the
or descendants consisting of jewelry, clothing, and child’s professional, vocational, or other career
outfit, as to the amount exceeding 1/10 of the estate
(unless the donor provides otherwise)
4. Testamentary Dispositions to compulsory heirs, but f. Wedding gifts by parents and ascendants to
only when the testator provides that it will charged to children or descendants consisting of jewelry,
the legitime clothing, and outfit (as to the amount equal to or
less than 1/10 of the estate)
‣ BALANE: These articles merely gives suggestions and guidelines on how to partition the property and uses collation in
the sense of imputation as part of these guidelines. This provisions really talk about partition rather than collation.
‣ Generally, the donee's share of the estate shall be reduced by an amount equal to that already received by him;
and his co- heirs shall receive an equivalent, as much as possible, in property of the same nature, class and
quality (Art. 1073)
‣ BALANE: This is not a mandatory rule, but merely sets the “ideal” rule. This rule will yield to a different agreement
among the heirs and is also dependent on the existence/availability of properties of the same nature, class and quality
as that imputed to the donee contemplated here. Most of the time, this rule is not carried out, due to a different
agreement or non-availability of properties. For example, the donee got a fishpond, upon partition, this should be
‣ BALANE: Art. 1074 provides for the closest analogue to strict equivalence, in case there are not enough of the same
things to distribute among all. Again, this will yield to a contrary agreement among the heirs.
Article 909. Donations given to children shall be charged to their legitime. Donations made to strangers shall be charged
to that part of the estate of which the testator could have disposed by his last will. Insofar as they may be inofficious or
may exceed the disposable portion, they shall be reduced according to the rules established by this Code. (819a)
Article 910. Donations which an illegitimate child may have received during the lifetime of his father or mother, shall be
charged to his legitime. Should they exceed the portion that can be freely disposed of, they shall be reduced in the
manner prescribed by this Code.
Article 1075. The fruits and interest of the property subject to collation shall not pertain to the estate except from the day
on which the succession is opened.
For the purpose of ascertaining their amount, the fruits and interest of the property of the estate of the same kind and
quality as that subject to collation shall be made the standard of assessment. (1049)
Article 1076. The co-heirs are bound to reimburse to the donee the necessary expenses which he has incurred for the
preservation of the property donated to him, though they may not have augmented its value.
The donee who collates in kind an immovable which has been given to him must be reimbursed by his co-heirs for the
improvements which have increased the value of the property, and which exist at the time the partition if effected.
As to works made on the estate for the mere pleasure of the donee, no reimbursement is due him for them; he has,
however, the right to remove them, if he can do so without injuring the estate. (n)
Article 546. Necessary expenses shall be refunded to every possessor; but only the possessor in good faith may retain
the thing until he has been reimbursed therefor.
Useful expenses shall be refunded only to the possessor in good faith with the same right of retention, the person who
has defeated him in the possession having the option of refunding the amount of the expenses or of paying the increase
in value which the thing may have acquired by reason thereof. (453a)
Article 548. Expenses for pure luxury or mere pleasure shall not be refunded to the possessor in good faith; but he may
remove the ornaments with which he has embellished the principal thing if it suffers no injury thereby, and if his successor
in the possession does not prefer to refund the amount expended. (454)
‣ See also Art. 909 and 910 (last sentences for both)
‣ BALANE:
‣ Note that the donations were made in the lifetime of the decedent, but you only know that they are inofficious at
the time of his death
‣ As correctly pointed out by Justice J.B.L. Reyes and Senator Tolentino, the situation treated in this article is really a
case of reduction of inofficious donations and the rules set forth in this article really belong in the provisions on
inofficious donations in Articles 909, 910, and 911. A good deal of confusion would have been avoided if the Code
had not insisted on using the term collation so variedly.
RULES IN CASE THE DONATIONS TO COMPULSORY HEIRS EXCEED THE FREE PORTION
1. REDUCE/RETURN THE DONATIONS (ART. 909)
‣ So much of the value of the donations (to the compulsory heirs) as is inofficious is returned to the decedent’s estate to
satisfy the legitimes.
b. Cash value
‣ Took this up already in satisfaction of legitimes, placed this here just for emphasis
2. THE FRUITS OF THE DONATION SHALL BELONG TO THE ESTATE FROM THE TIME OF THE DECEDENT’S DEATH (ART. 1075)
‣ The fruits and interest of the property subject to collation shall not pertain to the estate except from the day on which
the succession is opened.
‣ If any donation turns out to be inofficious, then the obligation to return it to the estate arises as of the time the
succession vests (the time of the decedent’s death) because it is from that time that the compulsory heir’s right to
the inheritance becomes absolute (Article 777). From that time therefore the compulsory heir is entitled to the
fruits.
‣ Example: X gives his son Y a mango plantation, when X dies it is discovered that the donation was in officious. If
the donation was totally inofficious, Y has to return the mango plantation (or its cash value) plus ALL the fruits
(civil, industrial, or natural) but counted only from the time of the decedent’s death. If the donation was only 50%
inofficious, Y has to return 50% of its value, plus 50% of the fruits, but counted only from the time of the
decedent’s death.
3. ESTATE OR CO-HEIRS SHOULD REIMBURSE THE DONEE FOR EXPENSES (ART. 1076)
‣ What can be involved is either be total or partial return (depending on the degree of inofficiousness)
‣ Expenses contemplated:
a. Necessary (for preservation and management)
3. Ornamental Expenses No reimbursement, but right of removal granted if no injury will be caused
*But for partial return, if the property is physically divided and the ornament happens to be located in the
portion assigned to the donee, he will have all the rights of ownership.
Article 1077. Should any question arise among the co-heirs upon the obligation to bring to collation or as to the things
which are subject to collation, the distribution of the estate shall not be interrupted for this reason, provided adequate
security is given. (1050)
FAMILY CODE
Article 51. The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional
rights of the children accruing upon the death of either or both of the parents; but the value of the properties already
received under the decree of annulment or absolute nullity shall be considered as advances on their legitime.
Article 227. If the parents entrust the management or administration of any of their properties to an unemancipated child,
the net proceeds of such property shall belong to the owner. The child shall be given a reasonable monthly allowance in
an amount not less than that which the owner would have paid if the admin- istrator were a stranger, unless the owner,
grants the entire proceeds to the child. In any case, the proceeds thus given in whole or in part shall not be charged to
the child's legitime.
RULE IN CASE ANY QUESTIONS ARISE AMONG THE CO-HEIRS UPON THE OBLIGATION TO BRING TO COLLATION OR RETURN
‣ Should any question arise among the co-heirs upon the obligation to bring to collation or as to the things which are
subject to collation, the distribution of the estate shall not be interrupted for this reason, provided adequate
security is given
‣ The division and distribution of the estate can be made partially, should there be controversy as to the inclusion of
certain items either in the computation of the estate’s value or the imputation of heirs’ shares.
‣ The distribution can proceed on the items that are not controverted.
SUBSECTION 1: PARTITION
DEFINITION OF PARTITION
Article 1078. Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in
common by such heirs, subject to the payment of debts of the deceased. (n)
‣ BALANE:
‣ When the decedent dies, there is already “juridical” assignment or transfer of the estate to the heirs. Partition is the
means of how this is really done. After the decedent’s death, there will always be some interval of time before partition
occurs, it may be a short interval if there is no issue, or a long one if there are a lot of issues or if there is a will
‣ The consequence of this “juridical” vesting upon the decedent’s death is that a co-ownership is automatically
constituted by operation of law over the net hereditary estate. This co-ownership will subsists until partition is effected.
Thus, until there is partition, the properties may even pass to the heirs of the heirs, co-owned by the other heirs of the
heirs, as we saw in the case of.….forgot the case sorry :(
WHAT IS PARTITIONED?
‣ Only the mass of properties constituting the net hereditary estate is partitioned.
‣ What the successors acquire vested rights over is the net estate and the net estate is what remains after:
‣ BALANE: Thus, debts first have to be paid; it is possible, if the debts exceed the assets, that after the debts are paid, there
will be no estate to speak of. If, however, the decedent’s gross assets exceed his liabilities, or if there are inofficious
donations to be returned, his net estate passes to his successors (heirs, legatees, devisees) at the precise moment of
death. The estate, however, is a mass of properties, usually consisting of various items. The immediate effect, therefore, of
the decedent’s death—as far as successional law is concerned—is a co-ownership of the heirs over the entire mass. (The
legatees and devisees will acquire a right to the specific items given to them, assuming the legacies and devises are not
inofficious).
2. Subsequent partition
b. Through judicial order in appropriate settlement proceedings (Rule 90, Rules of Court).
‣ BALANE: Actually, the judicial proceeding in which the partition is ordered comprises the entire settlement of the estate of
the decedent, covered by Rules 73 to 90 of the Rules of Court. In this part of successional law (the partition of the estate),
substantive law and procedural law intersect.
KINDS OF PARTITION
Article 1079. Partition, in general, is the separation, division and assignment of a thing held in common among those to
whom it may belong. The thing itself may be divided, or its value. (n)
Article 1082. Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed
to be a partition, although it should purport to be a sale, and exchange, a compromise, or any other transaction. (n)
Article 1086. Should a thing be indivisible, or would be much impaired by its being divided, it may be adjudicated to one
of the heirs, provided he shall pay the others the excess in cash.
Nevertheless, if any of the heirs should demand that the thing be sold at public auction and that strangers be allowed to
bid, this must be done. (1062)
‣ Partition ends the co-ownership among the co-heirs as to the thing partitioned.
‣ Kinds of Partition:
1. Actual
‣ Physical division of the thing among the co-heirs
2. Constructive
‣ Any act, other than physical division, which terminates the co-ownership (such as sale to a third person)
‣ Such as a:
‣ BALANE: Anything which terminates the co-ownership in whole or in part is a partition (even if only one of
the co-heirs wants out by selling his share to strangers or other co-heirs, in this case, it is a partial partition)
b. Sale of the thing and division of the proceeds among the heirs (Art. 1086)
‣ This will have to be resorted to if the thing is essentially indivisible or if physical partition will so diminish its
value that it becomes unserviceable or useless.
i. To a third person, or
‣ BALANE: This applies if the co-heirs are quarrelling, even if the others want to buy it but one co-heir
objects wants to sell it to others “para lang hindi mapunta sa co-heirs nya”, but the proceeds will be
less because they have to pay for the expenses of the auction. MAGIC MIKE
ii. If none of the co-heirs object, to any one of them who is interested.
‣ If more than one are interested in buying, they may buy it jointly and have the proceeds distributed
among the others to the extent of their respective shares. But the co- ownership will continue as to
the buyers.
‣ TUASON VS. TUASON, JR. & GREGORIO ARANETA, INC. 88 PHIL. 428 (1951)
‣ The contract in this case, precisely has for its purpose and object the dissolution of the co-ownership and of
the community by selling the parcel held in common and dividing the proceeds of the sale among the co-
owners. The obligation imposed in the contract to preserve the co-ownership until all the lots shall have been
sold, is a mere incident to the main object of dissolving the co-ownership. By virtue of the document, the
parties thereto practically and substantially entered into a contract of partnership as the best and most
expedient means of eventually dissolving the co-ownership, the life of said partnership to end when the
object of its creation shall have been attained.
‣ An agreement of partition may be made orally or in writing. An oral agreement for the partition of the property
owned in common is valid and enforceable upon the parties. The Statute of Frauds has no operation in this
kind of agreements, for partition is not a conveyance of property but simply a segregation and designation of
the part of the property which belong to the co-owners
‣ On general principle, independent and in spite of the statute of frauds, courts of equity have enforce [sic] oral
partition when it has been completely or partly performed.
‣ Regardless of whether a parol partition or agreement to partition is valid and enforceable at law, equity will [in]
proper cases, where the parol partition has actually been consummated by the taking of possession in
severalty and the exercise of ownership by the parties of the respective portions set off to each, recognize and
enforce such parol partition and the rights of the parties thereunder.
‣ Thus, it has been held or stated in a number of cases involving an oral partition under which the parties
went into possession, exercised acts of ownership, or otherwise partly performed the partition agreement,
that equity will confirm such partition and in a proper case decree title in accordance with the possession in
severalty.
‣ In numerous cases it has been held or stated that parol partition may be sustained on the ground of estoppel
of the parties to assert the rights of a tenant in common as to parts of land divided by parol partition as to
which possession in severalty was taken and acts of individual ownership were exercised. And a court of
equity will recognize the agreement and decree it to be valid and effectual for the purpose of concluding the
right of the parties as between each other to hold their respective parts in severalty.
‣ A parol partition may also be sustained on the ground that the parties thereto have acquiesced in and ratified
the partition by taking possession in severalty, exercising acts of ownership with respect thereto, or otherwise
recognizing the existence of the partition.
Article 1080. Should a person make partition of his estate by an act inter vivos, or by will, such partition shall be
respected, insofar as it does not prejudice the legitime of the compulsory heirs.
A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or manufacturing enterprise
intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom
the property is not assigned, be paid in cash. (1056a)
Article 904. The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly specified by law.
Neither can he impose upon the same any burden, encumbrance, condition, or substitution of any kind whatsoever
‣ The testator is allowed to do so even if he has compulsory heirs. He can also partition which properties will constitute
the legitimes.
‣ The partition is valid as long as the items given do not impair the legitime.
‣ Example:
‣ “X has no compulsory heirs. He states in his will "I give to A 1/3 of my estate. To comprise A's share, I would like
her to get my house in Makati.”
‣ “X has a son A and B, who are each entitled to 1/4 legitime. He can provide in a will that he gives A his business
(because he is good in business) which is to be his legitime. This is valid as long as the value of the business does
not impair the legitime of B.”
‣ A person cannot, in the guise of making a partition, make disposition of property to take effect upon his death.
‣ BALANE: You cannot make a partition by acts inter vivos first then make a will, a will must first be made, before
partition can take place by acts inter vivos. But it can be possible for a person not to make a will but make a
partition, this is in the case of intestacy. No need for a will in that case because intestacy already governs the rules
of approportionment. But once the causante changes the proportions (provided for by intestacy), he should make a
will
‣ LEGASTO VS. VERZOSA 54 PHIL. 766 (1930)
‣ Both the Spanish Supreme Court and the learned and authoritative commentator, Manresa, are of opinion
that a testator may, by an act inter vivos, partition his property, but he must first make a will with all
the formalities provided for by law. And it could not be otherwise, for without a will there can be no
testator; when the law, therefore, speaks of the partition inter vivos made by the testator of his
property, it necessarily refers to that property which he has devised to his heirs.
‣ It is an indispensable condition precedent to a testator partitioning his estate inter vivos that he have
made a valid will disposing of said estate among his heirs; and if this will be declared null and void,
the partition made by the testator in pursuance of its provisions is likewise null and void, for where
these provisions cease to exist, the partition made in conformity therewith also becomes null and
void, as the cessation of the cause implies the cessation of the effect.
‣ In this case, since the will is null and void for lack of the legal requisites, consequently, the partition
which she made of her estate among her nieces the defendants-appellants herein, during her lifetime is
likewise null and void.
‣ BALANE:
‣ Legasto lays down the rule that a partition inter vivos is valid only if there is a supporting will on which
the partition is based. The Legasto ruling was reiterated in Alsua-Betts v. CA (92 SCRA 332 [1979]) and
Dimayuga v. CA (129 SCRA 110 [1984]); Alsua-Betts in fact amplified the ruling by holding that the
partition inter vivos is void even if a subsequent will is executed in conformity with the provisions of the
prior partition.
‣ Possible effect of amended wording of Article 1080; The Legasto, Alsua-Betts, and Dimayuga, rulings
were all decided under Article 1056 of the Spanish Code, which is the predecessor provision of the
present Article 1080. The wording of the old Article 1056, however, is not identical to that of the present
article. The original provision specified “testator”
‣ Article 1080, however, does not say “testator”; it says “person.” Is the change significant? We should
assume that the change in wording was not unintentional, but an indication of an intent to modify the
operation of the law. We can, therefore, with reason conclude that, under the present provision, a
partition inter vivos can be validly made even without a prior supporting will, provided that it is
not used to make mortis causa dispositions. Nothing can take the place of a will to dispose of
property mortis causa. Hence, the only way a partition without a will can be valid is by following
strictly the intestate portions provided by law, the partition should conform exactly to the
portions provided by law in intestate succession, for then the causante would not be making
testamentary dispositions in the partition—the dispositions would be by virtue of intestate succession.
‣ The case of Chavez v. IAC (191 SCRA. 211(1990]), decided under the present article, and recognizing
the validity of a partition inter vivos even without a supporting will could have been cited as authority for
the view just presented above, but for the fact that the authoritative force of Chavez is considerably
diminished by its rulings: 1) giving an irrevocable character to the partition inter vivos, and 2) allowing a
conveyance by the compulsory heirs of their legitimes even during their lifetimes. For obvious reasons,
these two rulings should raise eyebrows very high.
‣ It is understood that this privilege (to make the partition in such a way as to keep the enterprise intact) can be
exercised only if enough cash or other property is available to satisfy the legitimes of the other children.
Article 1081. A person may, by an act inter vivos or mortis causa, intrust the mere power to make the partition after his
death to any person who is not one of the co-heirs.
The provisions of this and of the preceding article shall be observed even should there be among the co-heirs a minor or
a person subject to guardianship; but the mandatary, in such case, shall make an inventory of the property of the estate,
after notifying the co-heirs, the creditors, and the legatees or devisees. (1057a)
‣ A mandatary is the person entrusted to make the partition of the decedent’s estate
‣ BALANE: Does this article also prohibit a devisee or legatee from being appointed? It is not certain. If he is given a
specific portion, then there is no temptation to favor himself. But if his share be a generic portion, then the temptation
exists.
Article 1083. Every co-heir has a right to demand the division of the estate unless the testator should have expressly
forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in article 494. This
power of the testator to prohibit division applies to the legitime.
Even though forbidden by the testator, the co-ownership terminates when any of the causes for which partnership is
dissolved takes place, or when the court finds for compelling reasons that division should be ordered, upon petition of
one of the co-heirs. (1051a)
Article 1831. On application by or for a partner the court shall decree a dissolution whenever:
(1) A partner has been declared insane in any judicial proceeding or is shown to be of unsound mind;
(2) A partner becomes in any other way incapable of performing his part of the partnership contract;
(3) A partner has been guilty of such conduct as tends to affect prejudicially the carrying on of the business;
(4) A partner wilfully or persistently commits a breach of the partnership agreement, or otherwise so conducts himself in
matters relating to the partnership business that it is not reasonably practicable to carry on the business in
partnership with him;
(5) The business of the partnership can only be carried on at a loss;
(6) Other circumstances render a dissolution equitable.
On the application of the purchaser of a partner's interest under article 1813 or 1814:
(1) After the termination of the specified term or particular undertaking;
(2) At any time if the partnership was a partnership at will when the interest was assigned or when the charging order was
issued. (n)
Article 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any time the
partition of the thing owned in common, insofar as his share is concerned. Nevertheless, an agreement to keep the thing
undivided for a certain period of time, not exceeding ten years, shall be valid. This term may be extended by a new
agreement. A donor or testator may prohibit partition for a period which shall not exceed twenty years. Neither shall there
be any partition when it is prohibited by law.
FAMILY CODE
Art. 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family
for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the
court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the
family home. (238a)
‣ BALANE: Generally, any co-heir may demand partition, this is a right of each co-heir, the others need not consent to it.
‣ EXCEPTIONS: There are some instances when partition cannot be demanded.
‣ This enforced co-ownership may cover even the legitimes (legitime may remain undivided if testator wants)
‣ BALANE: The law does not like co-ownership, it is a source of quarrels. Thus, the law limits the testator’s
right to prohibit partition
‣ EXCEPTIONS TO EXCEPTION: Despite this imposed indivision, partition may be demanded:
i. When any of the causes for the dissolution of a partnership occurs (Articles 1830-1831)
Article 1084. Voluntary heirs upon whom some condition has been imposed cannot demand a partition until the condition
has been fulfilled; but the other co-heirs may demand it by giving sufficient security for the rights which the former may
have in case the condition should be complied with, and until it is known that the condition has not been fulfilled or can
never be complied with, the partition shall be understood to be provisional. (1054a)
‣ Rules:
1. The heir instituted under a suspensive condition acquires no rights unless and until the condition happens.
‣ Their right as heir vests only when the suspensive condition happens.
2. The other heirs has the right to demand partition, but they must give adequate security.
‣ They must give sufficient security for the rights which the former may have in case the condition should be
complied with, and until it is known that the condition has not been fulfilled or can never be complied with, the
partition is still provisional.
Article 1085. In the partition of the estate, equality shall be observed as far as possible, dividing the property into lots, or
assigning to each of the co-heirs things of the same nature, quality and kind. (1061)
‣ BALANE: We already saw this in collation (Art. 1073,1074). It applies to heirs similarly situated. It is subject to agreement
between the parties and the realities of the situation, if there are properties of the same kind. It’s NOT mandatory but is
merely a guide.
‣ How do co-heirs share the partitioned estate?
1. Quantitative
‣ The shares of the co-heirs are NOT necessarily equal in value, but are determined by law and by will.
2. Qualitative
‣ Equality in nature, kind, and quality (whatever the aliquot portions be)
‣ EXCEPT:
a. If the causante has made the partition himself;
Article 1087. In the partition the co-heirs shall reimburse one another for the income and fruits which each one of them
may have received from any property of the estate, for any useful and necessary expenses made upon such property, and
for any damage thereto through malice or neglect. (1063)
Article 500. Upon partition, there shall be a mutual accounting for benefits received and reimbursements for expenses
made. Likewise, each co-owner shall pay for damages caused by reason of his negligence or fraud. (n)
‣ BALANE: This pertains to the interval of time between which the decedent died and the partition is effected, in that time,
some heirs might have taken the property and incurred expenses or received fruits, those will be subject to reimbursement
and accounting accordingly. This article lays down the same rule contained in the Title on Co-ownership (See Art. 500)
‣ Upon partition, the co-heirs shall render a mutual accounting of benefits received and expenses (necessary and
useful) incurred by each of them.
1. Obligation to Reimburse for Fruits Received
‣ Any heir who, between the decedent’s death and partition time, received fruits from the estate shall reimburse his
co-heirs their respective shares, in proportion to the hereditary interest of each.
Article 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs
may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within
the period of one month from the time they were notified in writing of the sale by the vendor. (1067a)
Article 1620. A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-owners or
of any of them, are sold to a third person. If the price of the alienation is grossly excessive, the redemptioner shall pay
only a reasonable one. Should two or more co-owners desire to exercise the right of redemption, they may only do so in
proportion to the share they may respectively have in the thing owned in common. (1522a)
‣ RULE: HEIR HAS RIGHT TO CONVEY HIS HEREDITARY SHARE EVEN BEFORE PARTITION (EVEN THOUGH HIS SHARE IS NOT YET
DETERMINATE)
‣ Remember that this is a consequence of the rule that successional rights vest upon the decedent’s death (Art. 777).
‣ Consequently, an heir may dispose of his aliquot share after that time; he may do this gratuitously or onerously
‣ IN THE EVENT ANY CO-HEIR SELLS HIS ALIQUOT PORTION TO A STRANGER BEFORE PARTITION TIME, ART. 1088 ENTITLES ANY
CO-HEIR TO REDEEM THE PORTION SOLD.
‣ BALANE: See also Art. 1620 which applies where the co-ownership covers specific property: Article 1088, where the
co-ownership covers the mass of the hereditary estate. But the distinction is academic, the rule is exactly the same.
‣ Note the following rules:
3. CO-HEIR MUST EXERCISE THE RIGHT OF REDEMPTION WITHIN ONE MONTH FROM WRITTEN NOTICE TO THEM BY THE
VENDOR.
‣ Written notice (from the stranger-buyer) is required; without it, the prescriptive period of one month, does not
run.
‣ The Supreme Court has, as a rule, interpreted this requirement of written notice strictly.
‣ BALANE: Actual or even constructive notice is NOT enough. Oral is NOT enough.
‣ GARCIA VS. CALALIMAN 172 SCRA 201 (1989)
‣ Both the letter and spirit of the new Civil Code argue against any attempt to widen the scope of the notice
specified in Article 1088 by including therein any other kind of notice, such as verbal or by registration. If
the intention of the law had been to include verbal notice or any other means of information as sufficient to
give the effect of this notice, then there would have been no necessity or reasons to specify in Article 1088
that the said notice be made in writing for, under the old law, a verbal notice or information was sufficient
‣ Written notice is indispensable, actual knowledge of the sale acquired in some other manners by the
redemptioner, notwithstanding. He or she is still entitled to written notice, as exacted by the Code, to
remove all uncertainty as to the sale, its terms and its validity, and to quiet any doubt that the
alienation is not definitive.
‣ The law not having provided for any alternative, the method of notifications remains exclusive, though the
Code does not prescribe any particular form of written notice nor any distinctive method for written
notification of redemption
‣ BALANE: The Court has, in at least three recent cases, however, relaxed the requirement of written notice
and held that actual notice to, or knowledge by, the co-heir achieves the purpose of the law and meets the
legal requirement. Alonzo v. IAC, 150 SCRA 259 (1987); Distrito v. CA, 197 SCRA 606 (1991); Fernandez v.
Tarun, 391 SCRA 653 [2002]. Alonzo declared, however, that it was not abandoning the previous rulings but
was simply laying down an exception to the general rule, in view of peculiar circumstances. Whether these
three cases are merely exceptions or are portents of changing jurisprudence, remains to be seen. The
Article 1089. The titles of acquisition or ownership of each property shall be delivered to the co-heir to whom said
property has been adjudicated. (1065a)
Article 1090. When the title comprises two or more pieces of land which have been assigned to two or more co-heirs, or
when it covers one piece of land which has been divided between two or more co-heirs, the title shall be delivered to the
one having the largest interest, and authentic copies of the title shall be furnished to the other co-heirs at the expense of
the estate. If the interest of each co-heir should be the same, the oldest shall have the title. (1066a)
‣ Once partition is made, respective titles are given to the respective heirs. So that they can transfer the titles in their
names.
‣ This is particularly important in case of registered land because the old title has to be surrendered so that a new title in
the name of the heir may be issued.
‣ Art. 1090 only provides for the right over the document. The co-heirs, however, have the right to have the title divided into
individual titles, a separate one for each of the owners to correspond to the separate portions held by them respectively.
‣ BALANE: This is to enable everybody to get their respective properties. Usually you must have the land resurveyed. I
won’t ask this in the finals
TERMINATION OF CO-OWNERSHIP
Article 1091. A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him.
(1068)
Article 1092. After the partition has been made, the co-heirs shall be reciprocally bound to warrant the title to, and the
quality of, each property adjudicated. (1069a)
Article 501. Every co-owner shall, after partition, be liable for defects of title and quality of the portion assigned to each of
the other co-owners. (n)
Article 1093. The reciprocal obligation of warranty referred to in the preceding article shall be proportionate to the
respective hereditary shares of the co-heirs, but if any one of them should be insolvent, the other co-heirs shall be liable
for his part in the same proportion, deducting the part corresponding to the one who should be indemnified. Those who
pay for the insolvent heir shall have a right of action against him for reimbursement, should his financial condition
improve. (1071)
Article 1094. An action to enforce the warranty among heirs must be brought within ten years from the date the right of
action accrues. (n)
Article 1095. If a credit should be assigned as collectible, the co-heirs shall not be liable for the subsequent insolvency of
the debtor of the estate, but only for his insolvency at the time the partition is made.
The warranty of the solvency of the debtor can only be enforced during the five years following the partition.
Co-heirs do not warrant bad debts, if so known to, and accepted by, the distributee. But if such debts are not assigned to
a co-heir, and should be collected, in whole or in part, the amount collected shall be distributed proportionately among
the heirs. (1072a)
Article 1096. The obligation of warranty among co-heirs shall cease in the following cases:
(1) When the testator himself has made the partition, unless it appears, or it may be reasonably presumed, that his
intention was otherwise, but the legitime shall always remain unimpaired;
(2) When it has been so expressly stipulated in the agreement of partition, unless there has been bad faith;
(3) When the eviction is due to a cause subsequent to the partition, or has been caused by the fault of the distributee of
the property. (1070a)
‣ The applicable rules on warranties are found in Articles 1547-1580, in the Title on Sales, insofar as those articles are
not inconsistent with the rules given in this subsection.
‣ These are:
‣ BALANE: But these defects must have arisen before the partition
‣ Example: “Three co-heirs A, B and C divided the land they inherited equally. But part of the land given to A did not
really belong to the predecessor so A loses part of his share. B and C will be liable for the warranty for the part lost.
They will either: (a) give cash; or (b) give land.”
3. INSOLVENCY BY CO-HEIR, OTHERS BOUND TO MAKE GOOD THE WARRANTY (ART. 1093)
‣ Should one of the co-heirs bound to make good the warranty be insolvent, his portion shall be borne proportionally
by all, including the one entitled to the warranty
‣ Example: “Co-heirs are A, B, C, D, and E in equal shares of P60,000.00 each. B claims warranty for the total amount
of his share, for having been evicted. A, C, D, and E have to contribute P12,000.00 each to make good the warranty.
(Since there was eviction in the amount of P60,000.00, it follows that the total value to be partitioned was only
P240,000.00; hence, P48,000.00 each). Should A be insolvent, his share of P12,000.00 shall be borne by all the
others, including B. Hence, C, D, and E have to contribute P3,000.00 more, making their individual liability P15,000.00.
B receives a total of P45,000.00 hav- ing borne his own share of P3,000.00 from A’s insolvency.
‣ Exception to right to reimbursement from insolvent obligor: The obvious exception to this is insolvency judicially
declared, under the Insolvency Law, since judicially declared insolvency extinguishes all obligations
‣ This presupposes that the co-heir accepts as his share in the partition, accounts receivables or credits
‣ BALANE: If he does this, he’s not very bright. Foolhardy is the co-heir who will accept a collectible as part of his
share in the partition. A credit, even under the best of circumstances, is aleatory. If the debtor in the account
receivable later becomes insolvent, the risk is borne by the co-heir.
‣ The warranty covers only insolvency of the decedent’s debtor at the time of partition, NOT subsequent
insolvency, for which the co-heir takes the risk.
‣ But if such debts are not assigned to a co-heir, and should be collected, in whole or in part, the amount
collected shall be distributed proportionately among the heirs
‣ BALANE: A co-heir who accepts a known bad debt as his share is either a fool or a masochist. The law does
not protect you from your own foolishness.
5. PRESCRIPTION OF THE ACTION TO ENFORCE THE WARRANTY (ART. 1094)
‣ An action to enforce the warranty among heirs must be brought within ten years from the date the right of action
accrues.
‣ The action accrues from the time the portion was lost or the hidden defect was discovered.
e. Waiver
Article 1097. A partition may be rescinded or annulled for the same causes as contracts. (1073a)
Article 1390. The following contracts are voidable or annullable, even though there may have been no damage to the
contracting parties:
(1) Those where one of the parties is incapable of giving consent to a contract;
(2) Those where the consent is vitiated by mistake, violence, intimidation, undue influence or fraud.
These contracts are binding, unless they are annulled by a proper action in court. They are susceptible of ratification. (n)
(3) Those undertaken in fraud of creditors when the latter cannot in any other manner collect the claims due them;
(4) Those which refer to things under litigation if they have been entered into by the defendant without the knowledge
and approval of the litigants or of competent judicial authority;
(5) All other contracts specially declared by law to be subject to rescission. (1291a)
Article 1098. A partition, judicial or extra-judicial, may also be rescinded on account of lesion, when any one of the co-
heirs received things whose value is less, by at least one-fourth, than the share to which he is entitled, considering the
value of the things at the time they were adjudicated. (1074a)
Article 1099. The partition made by the testator cannot be impugned on the ground of lesion, except when the legitime of
the compulsory heirs is thereby prejudiced, or when it appears or may reasonably be presumed, that the intention of the
testator was otherwise. (1075)
Article 1100. The action for rescission on account of lesion shall prescribe after four years from the time the partition was
made. (1076)
2. Vitiated Consent
‣ BALANE: Note the slight variation of Art. 1098 from pars. 1 and 2 of Article 1381, which specifies more than one-
fourth. Evidently, in cases of partition of the inheritance, Article 1098 applies, or at least 1/4. Lesion is exceedingly
difficult to determine and evaluate and is viewed with increasing disfavor by modern civil law.
‣ Example: “A is a co-heir of B and C. A is entitled to receive 100. In partition, he receives property worth 80. No
rescission of partition because the lesion is less then 1/4. But A has rights under the warranties. So he can ask for
completion. However, if the property is worth 75. There is lesion so A can demand for the rescission of the partition.”
‣ EXCEPTION: A partition made by the testator himself is NOT subject to rescission, even in case of lesion
‣ EXCEPTIONS TO EXCEPTION: In the following cases, even if the partition is made by the testator, rescission
applies:
b. Mistake by the testator or vitiation of his intent (Testator’s intent was not carried out)
‣ BALANE: Outside these two exceptions, the heirs cannot complain, swerte na sila may nakuha silk
‣ The action for rescission on account of lesion shall prescribe after four years from the time the partition was
made. (Art. 1099)
‣ This is the same period laid down in the general rule of rescission of contracts
‣ Prof. Balane said something about from the time of the discovery of the lesion
2. Entered in fraud of creditors
3. Involves property under litigation, entered into by the defendant without the knowledge and approval of the
litigants or of competent judicial authority
4. Others declared by law subject to rescission
Article 1101. The heir who is sued shall have the option of indemnifying the plaintiff for the loss, or consenting to a new
partition. Indemnity may be made by payment in cash or by the delivery of a thing of the same kind and quality as that
awarded to the plaintiff. If a new partition is made, it shall affect neither those who have not been prejudiced nor those
have not received more than theirjust share. (1077a)
Article 1102. An heir who has alienated the whole or a considerable part of the real property adjudicated to him cannot
maintain an action for rescission on the ground of lesion, but he shall have a right to be indemnified in cash.
‣ Note that it is the co-heir who is sued for rescission who has the option. He has two choices:
1. Re-partition, or
‣ Example: “A, B and C. A is supposed to receive P100,000 as his legitime. He receives only P70,000. A sues B and C.
B and C has the choice of which option to follow. They can either opt for repartition (give A more property so that he
gets P100,000) or opt just to pay A the P30,000.”
‣ BALANE: Art. 1102 is unnecessary, since anyway it is the party sued who is given the option. This is purely academic
Article 1103. The omission of one or more objects or securities of the inheritance shall not cause the rescission of the
partition on the ground of lesion, but the partition shall be completed by the distribution of the objects or securities which
have been omitted. (1079a)
‣ Incompleteness of the partition is not a ground for rescission (such as certain properties weren’t included because they
were not known).
Article 1104. A partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it be proved
that there was bad faith or fraud on the part of the other persons interested; but the latter shall be proportionately obliged
to pay to the person omitted the share which belongs to him. (1080)
‣ BALANE:
‣ This is not preterition from the inheritance under Article 854. This is simply an omission of a compulsory heir in the
partition, the assumption being that something is left for him in the form of an undisposed portion of the estate. It
could be intentional (but no bad faith or fraud) or inadvertent. The omitted heir simply gets his rightful share (Non v. CA,
325 SCRA 652 [2000]).
‣ I have a friend who is a lawyer (who lived in some province), he had 6 children, his eldest was a girl and the others
were boys. His eldest son was the type who wanted to live life to the fullest and was always restless, one day, the son
disappeared. My friend, the father never saw him again, but he thinks the son is somewhere in mindanao and wishes
him well. If assuming that the father dies and the estate is accordingly partitioned, but the eldest son later re-appears
and demands his share, then the co-heirs will simply proportionally give him his share. No bad faith or fraud here, thus,
no rescission.
Article 1105. A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to
such person. (1081a)
‣ BALANE: This is the reverse of the preceding article. Here an outsider is mistakenly included in the partition. The obvious
remedy is to recover the property from him and have it redistributed among the proper recipients. No rescission here, just
get back the share and make a supplemental partition