CIVIL LAW

NOTES ON

WILLS AND
SUCCESSION
Professor:

DEAN AUGUSTO K. ALIGADA, JR.

University of Santo Tomas

Faculty of Civil Law
España, Manila

2017
 Civil Code of the Philippines
WILLS AND SUCCESSION
These notes are meant to be a mere supplement to
your study of Succession, and it is not meant to be a
substitute for any law book. These were compiled
for review purposes only, and this may serve as a
guide as to how you can study Succession should
you have the good fortune of studying this subject
under Dean Aligada.
This reviewer is based largely on the books of
Justice Eduardo Caguioa and Atty. Ruben Balane,
and the lectures and comments of Dean Aligada
himself.
May this reviewer be of help to you in your exams
in law school and even in the Bar Exams. Feel free to
share this material to others if you wish. May the
Force be with you!
Special thanks to our friends in 3B and 3AA for
helping in producing this work.
JG + KM
3rd Year, 2017-2018
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SUCCESSION
GENERAL PROVISIONS
Art. 774. Succession is a mode of
acquisition by virtue of which the property, rights,
and obligations to the extent of the value of the
inheritance, of a person are transmitted through his
death to another or other either by will or by
operation of law.
Succession; Definition and Concept.–
Under the definition, the law refers to succession as a
mode of acquisition. However, it is not always correct
to say that it is such. It is a mode of acquisition
depending on whose standpoint succession is viewed.
If it is from the standpoint of the heir, then it
is a mode of acquisition. On the other hand, if it is
from the standpoint of the decedent, it is not a mode of
acquisition, but a mode of transmission.
This is because succession has a dual
juridical nature. It is both a mode of acquisition and a
mode of transmission. 1 It would depend always on
the parties’ standpoint.
“Extent of the value of the inheritance”.–
Under Art. 1311 of the law on Obligations and
Contracts, the law says that an heir is not liable
beyond the value of the property he received from the
decedent. Art. 1311 is intended to emphasize the
definition of succession.
An heir cannot be made liable beyond the
value of the inheritance. This is because the heir is
1 3 Caguioa 4-5, citing 4 Castan 148
MEESEEKS NOTES ON SUCCESSION
merely entitled to the residual portion of the estate.
He will only get what remains of the estate after the
payment of debts.
Before inheritance is transmitted, all
obligations and debts must be paid first. It means that
the heir cannot be held liable for the debts of the
deceased because the estate will be answerable to all
debts of the deceased.
Can creditors of a debtor-heir participate in the settlement
of the estate of the deceased?
The answer must be qualified.
If the decedent left debts, the creditor cannot
participate. The heirs cannot enter into the inheritance
before the settlement of the estate. Debts must all be
paid before the heirs can enter into the inheritance.
This is to prevent a situation wherein there will be
nothing left for the heir to inherit. (Litonjua v. Montilla,
G.R. L-4170, January 31, 1952)
If, however, the decedent left no debts, the
heirs can immediately enter into the inheritance.
Here, creditors can intervene. They may attach or ask
for the sale of the share of the debtor-heir. (Heirs of
Reganon v. Imperial, G.R. No. L-24434, January 17,
1968; Testate Estate of De Borja v. Vda. De Borja, G.R.
No. L-28040, August 18, 1972)
CASES:
1. Litonjua v. Montilla, G.R. L-4170 (January 31,
1952)
2. Heirs of Reganon v. Imperial, G.R. No. L-24434
(January 17, 1968)
3. Testate Estate of De Borja v. Vda. De Borja, G.R.
No. L-28040 (August 18, 1972)
4. Uson v. Del Rosario, et. al, 92 Phil. 530, G. R.
No. L-4963 (January 29, 1953)
5. Bonilla v. Barcena, G.R. No. L-41715 (June 18,
1976)
Art. 775. In this Title, “decedent” is the
general term applied to the person whose property
is transmitted through succession, whether or not he
left a will. If he left a will, he is also called the
testator.
Parties in Succession.– To know the parties
to succession, one must make a distinction between
testate and intestate succession.
In testate succession, the parties are:
1. Testator; and
2. Heirs, Legatees and/or devisees.
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NOTE: Legatees and devisees can exist only in testate
succession, because under the law a legacy or devise
can only be given through a will.
In intestate succession, the parties are:
1. Decedent; and
2. Heirs.
Definition of Terms.– The testator is a
person who dies in testate succession. He left a will.
The heir is a person who succeeds by
universal title, either by will or by law.
The decedent is a person whose property is
transmitted through succession, whether he left a will
or not.
Legatee or devisee is a person who succeeds
by particular title.
Can a person be an heir, legatee or devisee at the same
time?
YES, he can be. However, it is only possible
in testate succession because, remember, legatees and
devisees only exist in testate succession, never
intestate succession.
Art. 776. The inheritance includes all the
property, rights, and obligations of a person which
are not extinguished by death.
Art. 777. The rights of the succession are
transmitted from the moment of the death of the
decedent.
Inheritance; Concept.– Inheritance is the
bulk of the property which is transmitted to the
successor. 2 It is defined by law as all the property,
rights, and obligations of a person which are not
extinguished by death.
It is not the same as patrimony.
Inheritance; Extent of Patrimony.–
Patrimony is the sum total or aggregate of all the
juridical relations of a person susceptible to economic
valuation, whereas inheritance is limited to that
portion of the patrimony of a person which is not
extinguished by death. 3
Not all patrimonial properties and relations
of the deceased constitute inheritance. Inheritance
involves only a portion of the patrimony because it
involves those property, rights, and obligations of the
decedent not extinguished by his death.
Patrimony is a broader concept, while
inheritance is more limited.
2 3 Caguioa 9
3 Ibid.
MEESEEKS NOTES ON SUCCESSION
Art. 778. Succession may be:
(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed.
Art. 779. Testamentary succession is that
which results from the designation of an heir, made
in a will executed in the form prescribed by law.
Art. 780. Mixed succession is that effected
partly by will and partly by operation of law.
Art. 781. The inheritance of a person includes
not only the property and the transmissible rights
and obligations existing at the time of his death, but
also those which have accrued thereto since the
opening of the succession.
Definitions of Inheritance.– Under the law,
there are two (2) provisions which define inheritance:
one under Art. 776, and another under Art. 781.
Some authors say that there are two
definitions of inheritance, while some contend that
there is only one. Some say Art. 781 provides for a
broader definition, while some say that Art. 781 does
not define inheritance like Art. 776.
DEAN ALIGADA’S VIEW: Art. 776 is the true
definition of inheritance because it tells us what
inheritance is. Art. 781 merely speaks of accretion,
what accrues to the inheritance after the opening of
succession. Art. 781 is an elaboration of Art. 776.
What is included under Art. 781 cannot even
be considered inheritance, according to Justice Paras.
Accretion under Art. 781 is secured or added to the
inheritance after succession has already taken place.
Inheritance then must not be limited to
property, rights, and obligations not extinguished by
the death of the decedent, but must also include those
that have accrued thereto.
Opening of succession.– Succession is
opened by death. It begins at the exact moment of
death. Death closes the door on life, but opens up
succession.
The moment of death is the determining
point when the heirs acquire the right to the
inheritance whether such rights be pure, conditional,,
or with a term. 4 However, this does not mean to say
that the heirs can now enter into succession. The
estate must be settled first.
4 3 Caguioa 17
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WILLS AND SUCCESSION
Death, Concept. – The law contemplates two
(2) kinds of death:
1. Actual death; and
2. Presumptive death.
Art. 390 of the NCC provides that when a
person has been absent for 7 years, the absentee shall
be presumed for all legal purposes as dead, except for
the purposes of succession.
The absentee shall not be presumed dead for
the purpose of opening his succession till after an
absence of ten (10) years. If he disappeared after the
age of 75 years, an absence of five (5) years shall be
sufficient in order that his succession may be opened.
Note: The law merely provides for a presumption of
death, but no presumption as to the time when death
shall have taken place. 5
TESTAMENTARY SUCCESSION
WILLS IN GENERAL
Art. 783. A will is an act whereby a person
is permitted, with the formalities prescribed by law,
to control to a certain degree the disposition of this
estate, to take effect after his death.
Will; Definition.– Under Art. 783, a will is
defined as “an act whereby a person is permitted,
with the formalities prescribed by law, to control to a
certain degree the disposition of this estate, to take
effect after his death.”
A will must be in writing. It must be borne
in mind that the right to make a will is a statutory
right and must be subordinate to law and public
policy. (Herreros v. Gil Vda. de Murciano, G.R. L-3362,
March 1, 1951)
Disposition of Property.– A will, to be
considered as such, must contain a disposition of
property or to be more precise, a will to come under
the requirement of a probate must contain a
disposition of property. (Montinola v. Herbosa, 3 C.A.
377)
This disposition of property may be made
directly or indirectly. (Merza v. Porras, 93 Phil. 142)
Art. 784. The making of a will is a strictly
personal act; it cannot be left in whole or in part to
the discretion of a third person, or accomplished
through the instrumentality of an agent or attorney.
5 3 Tolentino 21-22
MEESEEKS NOTES ON SUCCESSION
Characteristics of Wills.– Art. 784 states one
of the characteristics of a will, and that it is a personal
act. However, other characteristics may be found in
the Civil Code, to wit:
1. It is a juridical act mortis causa;
2. Individual, being executed by a single
person;
3. Personal;
4. Free, in that it must not be vitiated by
any vice of consent;
5. Formal, because it must comply with the
formalities prescribed by law; and
6. Revocable.
Note: Characteristics merely refer to form or are mere
descriptions of what a will is. They are not requisites,
since they do not pertain to matters essential to its
validity.
Statutory right.– The right to dispose of
property by will is not natural but statutory, and
statutory requirements should be satisfied. The
formalities which the legislature has prescribed for
the execution of a will are essential to its validity, and
cannot be disregarded. (Herreros v. Gil Vda. de
Murciano supra.)
Meaning of purely personal.– As Art. 784
provides, a will is a strictly personal act and cannot be
left in whole or in part to the discretion of third
persons or through the instrumentality of an agent.
Does this mean that making a will must always be done by
the testator alone?
No.
So does this mean now that the execution of a will can be
delegated?
A distinction must be made. What the law
refers to is the disposition of property, and not to the
mechanical act of writing or drafting of the document.
Thus, execution can be delegated, while the
disposition of property can never be delegated. As to
who does the mechanical act of writing is a matter of
indifference. (Castañeda v. Alemany, 3 Phil. 426)
Note: This applies only to ordinary or notarial wills,
and not to holographic wills. This is because Art. 810
specifically provides that a holographic will be
written, dated, and signed by the testator himself.
Art. 785. The duration or efficacy of the
designation of heirs, devisees or legatees, or the
determination of the portions which they are to take,
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WILLS AND SUCCESSION
when referred to by name, cannot be left to the
discretion of a third person.
Art. 786. The testator may entrust to a third
person the distribution of specific property or sums
of money that he may leave in general to specified
classes or causes, and also the designation of the
persons, institutions or establishments to which
such property or sums are to be given or applied.
Art. 787. The testator may not make a
testamentary disposition in such manner that
another person has to determine whether or not it is
to be operative.
Testamentary Act.– What are the things a
testator cannot do?
The following cannot be left to the discretion
of third persons:
1. The duration of the designation of heirs,
devisees or legatees;
2. The efficacy of the designation;
3. The determination of the portions which
they are to take when referred to by
name.
These three acts are in the substance of the
making of a will as distinguished from a mechanical
act. The testator cannot substitute the mind or will of
another for his own. He should make use of his own
will and this power is not subject to delegation.
What are the things a testator can do?
1. Delegate the mechanical act of writing a
will, in case of ordinary or notarial wills;
and
2. The simple act of delivery of the
testamentary property, but not the
designation as to who is to receive it.
Art. 788. If a testamentary disposition
admits of different interpretations, in case of doubt,
that interpretation by which the disposition is to be
operative shall be preferred.
Art. 789. When there is an imperfect
description, or when no person or property exactly
answers the description, mistakes and omissions
must be corrected, if the error appears from the
context of the will or from extrinsic evidence,
excluding the oral declarations of the testator as to
his intention; and when an uncertainty arises upon
the face of the will, as to the application of any of its
provisions, the testator's intention is to be
ascertained from the words of the will, taking into
MEESEEKS NOTES ON SUCCESSION
consideration the circumstances under which it was
made, excluding such oral declarations.
Art. 790. The words of a will are to be taken
in their ordinary and grammatical sense, unless a
clear intention to use them in another sense can be
gathered, and that other can be ascertained.
Technical words in a will are to be taken in
their technical sense, unless the context clearly
indicates a contrary intention, or unless it
satisfactorily appears that the will was drawn solely
by the testator, and that he was unacquainted with
such technical sense.
Art. 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.
Art. 792. The invalidity of one of several
dispositions contained in a will does not result in
the invalidity of the other dispositions, unless it is
to be presumed that the testator would not have
made such other dispositions if the first invalid
disposition had not been made.
Note: Dean Aligada no longer discussed these
Articles as they were self-explanatory.
Art. 793. Property acquired after the making
of a will shall only pass thereby, as if the testator
had possessed it at the time of making the will,
should it expressly appear by the will that such was
his intention.
Art. 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.
Amount of interest which is deemed
conveyed.– A devise is a disposition by will of real
property; while a legacy is a disposition by will of
personal property.
A devise or legacy shall include all the
interest which the testator could devise or bequeath in
the property disposed of by will, the presumption
being that the testator wills the whole interest unless
it clearly appears another interest is conveyed in the
will itself. 6
Art. 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.
6 3 Caguioa 36
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Extrinsic validity of a will.– The extrinsic
validity of a will concerns itself with the forms and
solemnities which the law prescribes.
Intrinsic validity of a will.– Intrinsic
validity of a will concerns itself with the following:
1. The order of succession;
2. Amount of successional rights; and
3. Validity of testamentary provisions.
Validity; Governing laws.–
What law will govern the validity of wills?
The answer must be qualified. One must first
make a distinction between extrinsic validity and
intrinsic validity.
If it is extrinsic, the law in effect at the time
of the execution of will shall govern (Art. 795;
Enriquez v. Abadia, 95 Phil. 627).
If it is intrinsic, the law in effect at the time of
the death of the testator will govern.
The subsequent enactment of a law
invalidating an otherwise validly executed will before
such enactment cannot affect the validity of that will.
The same is true for the opposite. A subsequent
enactment of law validating an otherwise invalid will
cannot validate that will.
Rule as to intention.– The rule which states
that the intention of the testator governs the validity
of the will applies only to interpretation, not to the
form of the will because what governs the form is the
law itself.
Note: Always distinguish between an ordinary will
and a notarial will. Ordinary wills are those executed
during the effectivity of the Code of Civil Procedure.
TESTAMENTARY CAPACITY AND INTENT
Art. 796. All persons who are not expressly
prohibited by law may make a will. (662)
Testamentary capacity and Testamentary
power; Definition.– Testamentary capacity is the
power of the testator to execute a will provided he
complies with the formalities prescribed by the law.
Testamentary power is the power of the
testator to dispose of his property by acts mortis causa.
When does testamentary capacity apply?
It applies when one makes a will.
When does testamentary power apply?
It applies upon the death of the person who
made a will.
MEESEEKS NOTES ON SUCCESSION
Art. 797. Persons of either sex under
eighteen years of age cannot make a will. (n)
Art. 798. In order to make a will it is
essential that the testator be of sound mind at the
time of its execution. (n)
Art. 799. To be of sound mind, it is not
necessary that the testator be in full possession of all
his reasoning faculties, or that his mind be wholly
unbroken, unimpaired, or unshattered by disease,
injury or other cause.
It shall be sufficient if the testator was able
at the time of making the will to know the nature of
the estate to be disposed of, the proper objects of his
bounty, and the character of the testamentary act. (n)
Qualifications of a testator.– Articles 796-
799 provide for the qualifications of a testator, to wit:
1. Must not have been expressly
disqualified by law (Art. 796);
2. Must not be under 18 years of age (Art.
797);
3. Must be of sound mind (Art. 798);
4. Must be know the nature of the estate to
be disposed of, the proper objects of his
bounty, and the character of the
testamentary act (Art. 799); and
5. Must be a natural person.
Testator; natural person.– A testator must be
a natural person in order to be able to make a will,
because juridical persons do not possess soundness of
mind. However, juridical persons may be designated
as legatees or devisees, but never as heirs. 7
Age requirement.– The law expressly
provides that persons below the age of 18 cannot
make a will.
Does this mean that a minor cannot make a will?
The answer must be qualified.
If the will was made during the time when
the age of majority was 21 years old, then yes, a minor
may make a will so long as he is at least 18 years of
age.
Presently, minors cannot be allowed to make
a will because the age of majority is now 18 years of
age by virtue of R.A. 6809, or what Dean Aligada
refers to as the “Lina Law.”
Art. 800. The law presumes that every
person is of sound mind, in the absence of proof to
the contrary.
7 3 Tolentino 46
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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)
Art. 801. Supervening incapacity does not
invalidate an effective will, nor is the will of an
incapable validated by the supervening of capacity.
Art. 802. A married woman may make a will
without the consent of her husband, and without the
authority of the court. (n)
Sound mind; definition.– When we speak of
soundness of the 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. (Art. 799, par. 1)
Soundness of the mind comprehends 3
things:
1. The testator must know the nature of the
estate to be disposed of;
2. The proper objects of his bounty; and
3. The character of the testamentary act.
If the above elements are present, the testator
is of sound mind.
Art. 800 makes a rebuttable presumption in
favour of a sound mind. This presumption begins
from the birth of a person.
Presumption of unsoundness of the mind.–
While Art. 800 generally presumes soundness of the
mind, it also presumes unsoundness of the mind.
(Art. 800, par. 2)
When is unsoundness of mind presumed by law?
Unsoundness of the mind is presumed in 2 instances:
1. If the testator, one month, or less, before
making his will was publicly known to
be insane (Art. 800, par. 2); and
2. Whenever a will has been executed by a
person under guardianship for insanity
(Torres v. Lopez, 48 Phil. 772).
Note: Mere guardianship does not give rise to this
presumption. The reason for the guardianship must
be insanity for this presumption to take effect.
Supervening incapacity or capacity.–
Although Art. 801 says that supervening incapacity
does not affect the validity of a will, a further
qualification must be made with respect to this topic.
MEESEEKS NOTES ON SUCCESSION
If the supervening incapacity is temporary in
character, then it will have no effect on the validity of
the will.
If the supervening incapacity is permanent,
then, in this instance, it will affect the validity of the
will.
Art. 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.
FORMS OF WILLS
ORDINARY OR NOTARIAL WILLS
Art. 804. Every will must be in writing and
executed in a language or dialect known to the
testator.
Art. 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.
Art. 806. Every will must be acknowledged
before a notary public by the testator and the
witnesses. The notary public shall not be required to
retain a copy of the will, or file another with the
office of the Clerk of Court.
Form.– A will must be:
1. In writing; and
2. In a language or dialect known to the
testator. (Art. 804)
These requirements apply to both ordinary
or notarial wills and holographic wills.
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This means that there can be no oral will,
and that it cannot be in a language or dialect
unknown to the testator.
Note: Art. 805 must be memorized. If any of the
requirements are missing, the will becomes null and
void. Even a slight departure from Art. 805 could
mean the disallowance of the will. (See Abangan v.
Abangan, 40 Phil. 476, 1919)
Language or dialect known to the testator.–
Is a will translated from a language or dialect unknown to
the testator be considered valid?
No, because the law does not allow the
translation of the will. Translations are only allowed
in Attestation Clauses. (Art. 805, par. 4)
The act of translating and/or interpreting the
will for the testator will not cure the defect so as to
make the will valid.
Therefore, the answer must be qualified:
Insofar as the translating of the body of the
will is concerned, Art. 804 will apply. It will be void.
Insofar as the attestation clause is concerned,
Art. 805, par. 4 will apply. It will validate the will. The
testator has nothing to do with the attestation clause. 8
Requisites of a valid will.– To know the
requisites of a valid will, one must first make a
distinction. It must be ascertained whether it is an
ordinary or notarial will or a holographic will.
Distinguish first because the requisites are
not the same for both kinds of wills.
Ordinary or Notarial Wills; Requisites.–
The requisites are as follows:
1. It must be in writing; (Art. 804)
2. It must be in a language or dialect known to
the testator; (Art. 804)
3. Subscribed at the end by the testator himself
or by the testator's name written by some
other person in his presence, and by his
express direction; (Art. 805, par. 1)
4. Attested and subscribed by three or more
credible witnesses in the presence of the
testator and of one another; (Art. 805, par. 1)
5. The testator or the person requested by him
to write his name and the instrumental
witnesses of the will shall sign each and
every page thereof, except the last, on the left
margin; (Art. 805, par. 2)
8 3 Caguioa 76
MEESEEKS NOTES ON SUCCESSION
6. Numbered correlatively in letters placed on
the upper part of each page; (Art. 805, par. 2)
7. Must contain an attestation clause (Art. 805,
par. 3); and
8. Acknowledged before a notary public by the
testator and the attesting witnesses. (Art.
806)
Distinction between ordinary and notarial
wills.– What sets an ordinary will apart from a
notarial will is the absence of acknowledgment.
An ordinary will does not require
acknowledgment before a notary public, and is
governed by the Code of Civil Procedure.
A notarial will requires acknowledgment
before a notary public, and is governed by the Civil
Code.
Holographic Wills; Requisites.– It must be
written, dated, and signed by the testator himself.
(Art. 810)
It needs no further formalities.
Subscription and Attestation.– When a
testator subscribes his will, he should sign it in his
usual way of signing, provided that he knows how to
write.
If the testator knows how to write, and he
signs it with a mark which is not the usual way he
signs, the will is considered invalid. (Matias v. Salud,
104 Phil. 1046, G.R. No. L-10751, June 23, 1958; Garcia
v. La Cuesta, 90 Phil. 489, G.R. No. L-4067, November
29, 1951)
If he does not know how to write, he may either:
1. Sign by any mark; or
2. Ask a third person under his express
direction to sign for him in his presence
and in the presence of the witnesses.
Is the signature of the third person who signed for the
testator necessary for the will to be valid?
No, it is not. Only the signature of the
testator is necessary. (Barut v. Cabacungan, 21 Phil. 461,
1912)
Can a witness sign for the testator?
Yes, a witness can be made to sign for the
testator provided that there are 3 other remaining
witnesses to the will.
Signing every page.– The law requires that
the will be signed by the testator or the person
requested by him to write his name and the
instrumental witnesses of the will each and every
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 Civil Code of the Philippines
WILLS AND SUCCESSION
page thereof, except the last, on the left margin. It
must be complied with.
However, where one page of the original of
the will was not signed by the testatrix and the
duplicate copy contains such signature, it may be
allowed. (Icasiano v. Icasiano, 11 SCRA 422, G.R. No. L-
18979, June 30, 1964)
Witnesses.– The law requires at least three
(3) credible witnesses. A witness’ 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. (Gonzales v. Court of
Appeals, 90 SCRA 183, May 25, 1979) Simply put, a
credible witness is one who is capable of being
believed.
Witnesses; Credible and Competent.– A
credible witness is not the same as a competent
witness. The credibility of a witness depends on the
appreciation of his testimony and arises from the
belief and conclusion of the Court that said witness is
telling the truth, whereas his competency to be an
instrumental witness is determined by the statute,
Art. 820 and 821. (Ibid.)
A credible witness is one who is capable of
being believed by the court, while a competent
witness is one who possesses the qualifications
required by law.
Being a competent witness does not
automatically make one a credible witness, because it
is still up to the court whether or not to believe his
testimony.
Attestation Clause.– By the attestation
clause it is meant that clause wherein the witnesses
certify that the instrument has been executed before
them, and the manner of execution of the same.
This is a mandatory requirement of the law.
Lack of it will invalidate the will.
Purpose of the Attestation Clause.– It is
made to preserve in permanent form a record of facts
attending the execution of the will, so that in case of
failure of the memory of the subscribing witnesses or
other casualty, they may still be proved.
Where must the attestation clause be placed?
It can be placed anywhere in the will. So
long as the will has an attestation clause, the place
where it is put is immaterial. The attestation clause
may even be placed on a separate instrument,
provided that it is attached to the will.
MEESEEKS NOTES ON SUCCESSION
The reason for this is that the testator is not a
party to the attestation clause.
Requirements of the Attestation Clause.–
The attestation clause must state the following:
1. The number of pages upon which the
will is written;
2. The fact that the will and every page
thereof was signed by the testator, or
caused some other person to write his
name under his express direction, in the
present of the instrumental witnesses;
3. The instrumental witnesses witnessed
and signed the will and all the pages
thereof in the presence of the testator
and of one another.
It must be signed by the witnesses at the end
of the attestation clause. Failure on the part of the
witnesses to sign at the bottom of the attestation
clause is a fatal defect, which will cause the
disallowance of the will. (Cagro v. Cagro, 92 Phil. 1032)
DEAN ALIGADA’S VIEW: There is more wisdom in
the dissenting opinion of the Court in Cagro than in
the majority decision.
The dissenting opinion in Cagro submits that
nowhere in the Civil Code is it stated that the
witnesses must sign at the bottom or end of the
attestation clause. In fact, the law does not say where
the witnesses should sign the attestation clause. So it
is not correct to say that the witnesses’ act of signing
the attestation clause on the left margin is not good.
Language of the Attestation Clause.– It need
not be in a language or dialect known to the testator
because, as mentioned before, the testator has nothing
to do with the attestation clause since that is a
statement of the witnesses.
It is also submitted that it need not be in the
same language or dialect of the will itself because the
law does not impose such a requirement. 9
It also need not be in a language or dialect
known to the attesting witnesses because the law
allows its translation.
Acknowledgement before a notary public.–
The law requires that ordinary or notarial wills be
acknowledged before a notary public. There is no
such requirement for holographic wills.
Who must acknowledge the will before a notary public?
1. The testator;
9 3 Caguioa 76
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 Civil Code of the Philippines
WILLS AND SUCCESSION
2. The person requested by the testator to
sign for him in his presence and by his
express direction (if any); and
3. The witnesses.
Acknowledgement before a notary public is a
mandatory requirement and must be complied with, or
else the will shall be disallowed. Where no one made
the acknowledgement, the will is invalid. (In Re: Testate
Estate of Vicente G. Alberto, G.R. L-11948, 1959)
The acknowledgement cannot be made by the
testator alone. He must be accompanied by the
instrumental witnesses. (Garcia v. Gatchalian, 21 SCRA
1056)
A notary cannot be a witness to a will where
he was the notary before whom the acknowledgement
was made, because he cannot acknowledge himself.
(Cruz v. Villasor, 54 SCRA 33)
Art. 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)
Art. 808. If the testator is blind, the will
shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary
public before whom the will is acknowledged. (n)
Reading of the Will.– As a general rule, the
witnesses to a will need not read the will, however
they must know that what they are signing is in fact a
will.
This rule admits 2 exceptions, namely Art.
807 and 808. These are the only instances where
witnesses are required to read the will. It must also be
done in compliance with the abovementioned
Articles.
Art. 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 Art. 805. (n)
HOLOGRAPHIC WILLS
Art. 810. A person may execute a
holographic will which must be entirely written,
dated, and signed by the hand of the testator
himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be
witnessed.
MEESEEKS NOTES ON SUCCESSION
Holographic Wills; Requisites.– It must be
written, dated, and signed by the hand of the testator
himself. (Art. 810)
It needs no further formalities and it may be
made within or without of the Philippines.
While Art. 810 speaks of the requisites of a
holographic will, it must be correlated with Art. 804,
which imposes an additional requirement – that it is
written in a language or dialect known to the testator.
Notice that Art. 804 does not make a distinction
between an ordinary or notarial will and a
holographic will. It only speaks of a will.
Writing of a holographic will.– It must be
written by the testator himself. In holographic wills,
even the mechanical act of writing cannot be delegate
by the testator to a third person.
Dating of a holographic will.– The date of a
holographic will can be placed anywhere in the will.
It must be noticed that dating is a
requirement of holographic wills and not of ordinary
or notarial wills. The reason for this is that
holographic wills are not witnessed, so the date
placed in the instrument would be material in
determining whether or not the testator possesses
testamentary capacity at the time the holographic will
was made.
No such requirement exists in ordinary or
notarial wills because witnesses who can testify as to
the testator’s testamentary capacity are available.
Must a holographic will be completed in one sitting?
No, it need not be. However, it must be
dated and signed on the same day in order to be in
compliance with Art. 810.
What is the status of a holographic will where the date was
placed before the disposition?
It is VOID. The dating and the signing must
be made on the same day.
What if the testamentary disposition was written down but
the date was put in the will later?
It will validate the will because of the
express provision of Art. 813.
All requisites must concur for the will to be
valid. Absent one of these the will is not valid yet.
How should it be dated.– As a general rule,
the date in a holographic will should include the date,
month, and year (dd/mm/yy) of the execution.
However, the exception applies when there
is absence of appearance of fraud, bad faith, undue
influence, and pressure and the authenticity of the
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 Civil Code of the Philippines
WILLS AND SUCCESSION
will is established and the only issue is compliance
with Art. 810. Here, the will should be allowed under
the principle of substantial compliance. (Roxas v. De
Jesus, 134 SCRA 245, 1985) The court here will be
liberal to prevent intestacy.
Note: The exception laid down in Roxas applies only
when the will is not contested. Remember, the object
of solemnities surrounding the execution of wills is to
close the door on bad faith and fraud.
Art. 811. In the probate of a holographic
will, it shall be necessary that at least one witness
who knows the handwriting and signature of the
testator explicitly declare that the will and the
signature are in the handwriting of the testator. If
the will is contested, at least three of such witnesses
shall be required.
In the absence of any competent witness
referred to in the preceding paragraph, and if the
court deem it necessary, expert testimony may be
resorted to. (619a)
Probate of a holographic will.– To probate a
will means to prove that the instrument offered is the
last will and testament of a deceased person who
testamentary capacity it is alleged to be and (a) that it
has been executed in accordance with law and (b) that
the testator was of sound and disposing mind. 10
It is concerned with the allowance or
disallowance of a will. It settles once and for all the
capacity of the testator and the compliance with the
requisites of law.
Suppose there was no evidence presented as to the
soundness of the testator’s mind. Should the will be
admitted for probate?
Yes, because there need not be any evidence
as to the soundness of the mind of the testator. The
law presumes soundness of the mind. (Art. 800)
Would the answer be the same if it was the due execution of
the will which was not proven?
No, because noncompliance with the
requirements of law on the formalities of a will shall
result in its disallowance.
Probate of a lost holographic will.–
Can a lost or destroyed holographic will be admitted for
probate, where only testimonial evidence was offered?
No. If no will is presented and only
testimonies of those who have seen or read the said
will are presented, then it cannot be admitted for
probate. The execution and contents of a lost or
destroyed holographic will may not be proved by the
10 3 Caguioa 125
MEESEEKS NOTES ON SUCCESSION
bare testimony of the witnesses who have seen
and/or read it. The law regards the document itself as
material proof of authenticity. (Gan v. Yap, 104 Phil.
509, 1958)
Note: In Gan, attention must be directed to Footnote 8
of the Decision.
What if a xerox copy of the holographic will was submitted?
Will it be admitted for probate?
Yes. The photostatic or xerox copy of a lost
or destroyed holographic will may be admitted
because then the authenticity of the handwriting of
the deceased can be determined by the probate court.
(Rodelas v. Aranza, 119 SCRA 16, 1982)
Note: The basis of the Court’s decision in Rodelas was
based on footnote 8 of Gan. However, it does not
mean to say that this doctrine was laid down in Gan
since the footnote is not part of the decision. It was
only in Rodelas that this doctrine was laid down by the
Supreme Court.
Witnesses required.– They are as follows:
If the holographic will is uncontested, at least
one (1) witness is required. (Art. 811, par. 1)
If the holographic will is contested, at least
three (3) witnesses are required. (Art. 811, par. 1)
In the absences of any competent witness,
expert testimony may be resorted to. (Art. 811, par. 2)
Number of witnesses; mandatory.– In the
case of Azaola v. Singson (109 Phil. 102, 1960), the
Supreme Court, speaking through Justice J.B.L. Reyes,
said that Art. 811 is merely permissive if absurd
results are to be avoided.
This ruling was reversed in Codoy v. Calugay
(312 SCRA 333, 1999). Here, the Supreme Court,
speaking through Justice Pardo, said that Art. 811 is
mandatory because it uses the word “shall,” may the
holographic will be contested or uncontested.
Art. 812. In holographic wills, the
dispositions of the testator written below his
signature must be dated and signed by him in order
to make them valid as testamentary dispositions. (n)
Art. 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)
Refer to the discussion under Art. 810.
Art. 814. In case of any insertion,
cancellation, erasure or alteration in a holographic
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WILLS AND SUCCESSION

will, the testator must authenticate the same by his
full signature. (n)
Changes in a holographic will.– If
subsequent to the making of a holographic will, the
testator should make insertion, cancellation,
alteration, or erasure in the will, the same is not valid
unless they are authenticated by the full signature of
the testator.
If insertions, cancellations, alterations, or erasures are not
authenticated by the testator, does that make the will void?
It depends.
The will itself remains valid; what is void are
the unauthenticated insertions, cancellations,
erasures, or alterations. 11
However, should the alterations or insertions
affect the essence of the will of the testator then the
whole will is void. Likewise, should it affect the date
or signature, the validity of the will is affected if the
same is not authenticated. 12
Full signature.– Full signature does not
mean that the testator must sign his full name. What
is meant is customarily the full signature of the
testator even though the first name may only be
initial.
Full signature precludes signing of mere
initials. While a testatrix may have had a change of
heart, the will must be disallowed because the
alteration was not authenticated in accordance with
law because she did not sign in the usual way she
signs, instead she signed using mere initials. (Kalaw v.
Relova, 132 SCRA 237, 1984)
Art. 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)
Art. 816. The will of an alien who is abroad
produces effect in the Philippines if made with the
formalities prescribed by the law of the place in
which he resides, or according to the formalities
observed in his country, or in conformity with those
which this Code prescribes. (n)
Art. 817. A will made in the Philippines by
a citizen or subject of another country, which is
executed in accordance with the law of the country
of which he is a citizen or subject, and which might
be proved and allowed by the law of his own
country, shall have the same effect as if executed
according to the laws of the Philippines. (n)
11 3 Caguioa 90
12 Ibid.
Will executed abroad; governing law.- To
determine the law that must be followed in case of a
will executed abroad, first distinguish who executed
it.
If he is a Filipino:
1. The law of the place where the will was
executed; and
2. Philippine Law
If he is an alien:
1. The law of the place where the will was
executed;
2. The law of the place where he resides;
3. The law of his nationality; and
4. If he is in the Philippines, in accordance
with Philippine Law
If a Filipino executed his ordinary will abroad, must he
comply with Philippine Law?
No, he need not to, provided he executed it
in accordance with the law of the place where it was
executed. Thus, he need not comply with the domicile
requirement of the 3 witnesses to his ordinary will.
However, if he executed it in accordance
with Philippine Laws, such law must be followed.
NOTE: These rules are applicable only to the extrinsic
or formal validity of a will.
Art. 818. Two or more persons cannot make
a will jointly, or in the same instrument, either for
their reciprocal benefit or for the benefit of a third
person. (669)
Art. 819. Wills, prohibited by the preceding
Article, executed by Filipinos in a foreign country
shall not be valid in the Philippines, even though
authorized by the laws of the country where they
may have been executed. (733a)
WITNESSES TO WILLS
Art. 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)
Art. 821. The following are disqualified
from being witnesses to a will:
(1) Any person not domiciled in the
Philippines;

MEESEEKS NOTES ON SUCCESSION 11

 Civil Code of the Philippines
WILLS AND SUCCESSION
(2) Those who have been convicted of
falsification of a document, perjury or false
testimony. (n)
Qualifications of witnesses.-
1. Must be at least 18 years of age;
2. Must be of sound mind;
3. Must be able to read and write;
4. Must not be blind, deaf or dumb;
Disqualifications of witnesses.-
5. Must not be convicted of falsification of
a document, perjury or false testimony;
and,
6. Must be domiciled in the Philippines.
NOTE: It is not enough that the witness possesses all
the qualifications. He must have none of the
disqualifications.
Can the testator execute an ordinary will abroad, despite
the requirement of domicile of his 3 witnesses?
He cannot do so because of that requirement
of domicile.
However, he can execute a holographic will
instead because it can be validly executed anywhere
in the world; and, it is not burdened by such
requirement. 13
Is a competent witness the same as a credible witness?
No, they are not the same.
A competent witness is a witness that satisfies
all the qualifications and none of the disqualifications
set forth by law.
A credible witness, on the other hand, is a
witness capable of being believed.
To be more precise, the competency of a
person to be an instrumental witness to a will is
determined by the statute, that is Art. 820 and 821 of
the Civil Code, whereas his credibility depends on the
appreciation of his testimony and arises from the
belief and conclusion of the Court that said witness is
telling the truth. (Gonzales v. CA, 90 SCRA 183)
Art. 822. If the witnesses attesting the
execution of a will are competent at the time of
attesting, their becoming subsequently incompetent
shall not prevent the allowance of the will. (n)
Art. 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
13 3 Caguioa 99
MEESEEKS NOTES ON SUCCESSION
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)
Witnesses as legatees or devisees.–
Can a legatee or devisee be a witness to a will?
Yes, but his legacy or device shall be void.
However, where such legatee or devisee is
accompanied by 3 other credible witnesses, the legacy
or devise shall be valid.
Nevertheless, the legacy or devise shall
remain void if one those 3 other witnesses is the
legatee’s or devisee’s spouse, parent, or child.
Therefore, the giving of a legacy to a witness
or to the spouse, or parent or child of such witness
does not disqualify the witness as such. What is only
nullified is the devise or legacy. 14
NOTE: Remember:
Devise - it is a gift of real property
Legacy - it is a gift of personal property
Will the same rule apply if the legatee or devisee was
instituted as an heir?
The rule still applies, such heir is
disqualified from inheriting.
Although the law provides no provision for
such disqualification, the heir is nevertheless
disqualified because the law does not make any
distinction in the manner by which the one succeeds,
succeeding as an heir, legacy, or devisee. 15
Art. 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)
Creditor as heir.– The creditor in whose
favour such devise or legacy is made may still be a
competent witness to the will, and at the same time
entitled to the legacy or devise since in reality it is not
a legacy or devise but a mere payment of an
obligation. 16
The law does not consider it a gift, but rather
it is payment.
14 3 Caguioa 101
15 3 Tolentino 112,cited in 3 Caguioa 100
16 3 Caguioa, supra. Note 12
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 Civil Code of the Philippines
WILLS AND SUCCESSION
CODICILS AND INCORPORATION BY
REFERENCE
Art. 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)
Art. 826. In order that a codicil may be
effective, it shall be executed as in the case of a will.
Codicil; Concept.- It is a supplement or
addition to a will. It is some addition or qualification of
one’s last will and testament.
Is a codicil a will?
Yes, only if it is executed as in the case of a
will; otherwise, it is a mere supplement.
Must a codicil be submitted to a probate to pass property?
If it is executed as in the case of a will, it must
pass through a probate.
Art. 827. If a will, executed as required by
this Code, incorporates into itself by reference any
document or paper, such document or paper shall not
be considered a part of the will unless the following
requisites are present:
(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)
Incorporation by reference.– The doctrine of
incorporation by reference means the incorporation of
an extrinsic document or paper into a will so as to
become a part thereof. This is an exception to the rule
that if an instrument is not executed with all the
formalities of a will it cannot be admitted to probate. 17
It is an independent, separate instrument
made a part of the will or incorporated in the will.
17 3 Caguioa 102
MEESEEKS NOTES ON SUCCESSION
Requisites for Incorporation by reference.–
Four (4) requisites must be complied with:
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.
NOTE: These requisites may either appear on the face
of the will and some may be shown by extrinsic
evidence.
On the face of the will, it must appear: 18
1. A distinct reference to the writing or
document incorporated;
2. A clear description and identification of
the writing or document; and
3. The will must state the number of pages
of the document or writing.
If through extrinsic evidence: 19
1. That the document was in existence at the
time the will was made; and
2. That the document or writing
incorporated must be identified by clear
and satisfactory proof as the document or
paper referred to therein.
NOTE: It would seem that there can be no
incorporation by reference in the case of holographic
wills since it is required that each and every page of the
document be signed by the testator and the witnesses.
Such requirement are not necessary in holographic
wills. 20
18 3 Caguioa 102-103
19 Ibid.
20 3 Caguioa 106
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 Civil Code of the Philippines
WILLS AND SUCCESSION
REVOCATIONS OF WILLS AND TESTAMENTARY
DISPOSITIONS
Art. 828. A will may be revoked by the
testator at any time before his death. Any waiver or
restriction of this right is void. (737a)
Revocation of wills; concept.– It is an act of
the mind terminating the potential capacity of the will
to take effect after the death of the testator, manifested
by a visible and outward act or sign, symbolic thereof.
A will is entirely in operative and wholly
ineffective for any purpose during the lifetime of the
testator. This essentially makes the will revocable at any
time before the testator dies.
It has not taken effect yet. It is but a mere scrap
of paper.
NOTE: It is not the will which has been terminated, but
the potential capacity of the will to operate, because a
will has yet to take effect during the lifetime of the
testator.
Suppose X executed a will containing a provision
acknowledging Y as his child. Later on, the will was revoked
during X’s lifetime. Is the acknowledgment of Y as a child of
X likewise revoked?
No, it is not.
The act of acknowledgment immediately
produces effect, so much so that it is not included in the
revocation. It is not dependent upon the death of the
testator to take effect. (See Art. 834)
Art. 829. A revocation done outside the
Philippines, by a person who does not have his
domicile in this country, is valid when it is done
according to the law of the place where the will was
made, or according to the law of the place in which the
testator had his domicile at the time; and if the
revocation takes place in this country, when it is in
accordance with the provisions of this Code. (n)
Art. 830. No will shall be revoked except in
the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing
executed as provided in case of wills; or
(3) By burning, tearing, cancelling, or
obliterating the will with the intention of
revoking it, by the testator himself, or by some
other person in his presence, and by his express
MEESEEKS NOTES ON SUCCESSION
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)
Ways of revoking a will.– The law provides for
only 3 ways to revoke a will, namely:
1. By implication of law;
Illustration: Legal Separation
There must be an issuance of a
decree of legal separation in its finality for
it to take effect.
Once there is finality, the guilty
spouse becomes disqualified to succeed
from the innocent spouse because of the
former’s loss of worthiness to succeed.
Should the innocent spouse condone the guilty
spouse, does it entitle the latter to succeed the
former again?
It depends.
If the loss of worthiness is based on
the law of succession, the guilty spouse
must be pardoned by the innocent spouse.
If the loss of worthiness is based on
the law of legal separation, the there must
be reconciliation 21 between the spouses.
2. By a subsequent will or codicil; and,
3. By an act of physical destruction
coupled with the intention to revoke.
By jurisprudence, a will may be revoked by
crumpling (Vda. De Roxas v. Roxas, 87 Phil. 692)
Acts of Physical Destruction.– A will can b
revoked by doing any of the following acts:
1. Burning;
2. Tearing;
3. Canceling;
4. Obliterating; (Art. 830 [3]) and
5. Crumpling (Vda. De Roxas v. Roxas,
supra.)
21The resumption of marital relations. One act considered as
such resumption is enough to be considered as
reconciliation.
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Such acts must be coupled with the intention
to revoke (animus revocandi) in order to effectively
revoke a will. Such intention is only necessary in
these acts of destruction.
Why is animus revocandi not necessary in the first two
cases?
The will of the testator is immaterial in the
first two (2) cases.
In the first case, the revocation takes place by
operation of law.
In the second case, the manifestation of
making another will constitutes animus revocandi.
How much of the will must be torn or burned in order for
the will to be considered as revoked?
The law does not say how much of the will
must be torn or burned. So long as it is done with the
intent to revoke, it does not matter how much is torn
or burned. It will still be revoked.
It need not be totally destroyed. It is
sufficient that on the face of the will or instrument,
there is shown some sign of the physical act of
destruction.
Suppose the will was revoked by the testator by writing the
word “cancelled” on the back of the will, is that a valid
revocation?
There is a difference in opinion.
Nevertheless, it is submitted that it can be
written in the back of the will and it must bear the
date and signature of the testator. Here, the
revocation can be considered revocation by
subsequent instrument, may it be a holographic will
or codicil. 22
DEAN ALIGADA’S VIEW: There is no law saying
where the word “cancelled” must be written on the
will.
Who can destroy the will?
It may be the testator himself; or, any other
person, provided, the act of destruction is done in the
presence of the testator at his (testator’s) express
direction.
Art. 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
latter wills. (n)
Art. 832. A revocation made in a subsequent
will shall take effect, even if the new will should
22 3 Caguioa 114
MEESEEKS NOTES ON SUCCESSION
become inoperative by reason of the incapacity of the
heirs, devisees or legatees designated therein, or by
their renunciation. (740a)
Doctrine of Dependent Relative
Revocation.– To put it simply, the revocation is
deemed conditional – its validity being conditioned on
the effectivity of the revoking will. The revocation is
subject to a suspensive condition.
Thus, if the revoking will turns out ineffective,
the revocation shall not take effect. If the new will is
inoperative, the original will remains in full force and
effect.
Revoking will.– The will that revokes
previously executed wills.
The execution of the revoking will serves as
proof that the testator had no intention of dying
intestate; thus, the revoked will must still be probated
despite the invalidity of the revoking will (Vda. De Molo
v. Molo 90 Phil. 37, 1951)
Revoked will.– The will that is revoked by a
revoking will.
If the testator executed a hundred wills which, among those,
must be submitted for probate?
It depends.
If there is an express revocation, only the
revoking will must be probated because all other will
previously executed are deemed revoked.
If there is an implied revocation, both the
revoking will and the revoked will must be submitted
because some dispositions in the latter might still be
effective.
Art. 833. A revocation of a will based on a
false cause or an illegal cause is null and void. (n)
Revocation based on a false or illegal
cause.– If the testator revokes a will on the basis of a
false or illegal cause, the revocation is not automatically
null and void.
A distinction must be made as to the method
of revocation used by the testator.
If the revocation is done through a physical act
of destruction, the revocation will be considered null
and void.
If the revocation was made through the
execution of a subsequent instrument, the reason relied
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upon by the testator for revoking the will must appear
on the face of the will for the revocation to take effect. 23
Art. 834. The recognition of an illegitimate
child does not lose its legal effect, even though the
will wherein it was made should be revoked. (714)
See discussion under Art. 828.
REPUBLICATION AND REVIVAL OF WILLS
Art. 835. The testator cannot republish,
without reproducing in a subsequent will, the
dispositions contained in a previous one which is void
as to its form. (n)
Art. 836. The execution of a codicil referring
to a previous will has the effect of republishing the
will as modified by the codicil. (n)
Art. 837. If after making a will, the testator
makes a second will expressly revoking the first, the
revocation of the second will does not revive the first
will, which can be revived only by another will or
codicil. (739a)
ALLOWANCE AND DISALLOWANCE OF WILLS
Art. 838. No will shall pass either real or
personal property unless it is proved and allowed in
accordance with the Rules of Court.
The testator himself may, during his lifetime,
petition the court having jurisdiction for the
allowance of his will. In such case, the pertinent
provisions of the Rules of Court for the allowance of
wills after the 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)
Inquiries made in a probate.- The probate
court must inquire on the following facts:
1. The extrinsic or formal validity of the
will; and
2. The testamentary capacity of the testator
at the time he executed the will.
If the due execution of the will was not
proved, the will will be disallowed. On the other hand,
23 3 Caguioa 120, citing Am. Jur.
MEESEEKS NOTES ON SUCCESSION
if the testamentary capacity of the testator is not proved,
the will will be allowed.
This is so because the law always presumes
soundness of the mind. (Art. 800)
Can the probate court inquire on the intrinsic validity of the
will?
As a general rule, the intrinsic validity of a will
is touched by the court in a separate proceeding after its
allowance or probate (Palacios v. Palacios, 1959)
By way of exception, the probate court may
inquire the intrinsic validity of the will based on
practical considerations where no benefit would be
gained in remanding the case to the lower court and
such remanding would only result to waste of time,
effort, expense, and added anxiety (Nuguid v. Nuguid, 17
SCRA 449, 1966)
What kind of proceeding is a probate?
It is a proceeding in rem because the findings
thereof cannot be questioned by anyone; and,
publication thereof is required for it is binding against
the whole world.
What is the nature of probate?
Probate is a necessary proceeding for the law
expressly provides that no will shall pass any property,
except through probate. (Art. 838)
When must a probate of the will take place?
Under the old law, probate only takes place
after the testator’s death (post-mortem).
Under the new law, it may take place before
death (ante-mortem) or after death of the testator. In
this case, the testator has a right to initiate the
proceedings during his lifetime.
NOTE: Defects in the will can be corrected in ante-
mortem probate, however it is not so in the case of post-
mortem probate.
Probate of a holographic will.– Please refer to
the discussion under Art. 811.
Probate; Mandatory.– 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 of 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
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WILLS AND SUCCESSION
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. (Guevara v. Guevara,
74 Phil. 479)
Because of this nature of probate, the statute
of limitations is not applicable to probate proceedings
(Guevara v. Guevara, 8 Phil. 249), because these are not
exclusively established for the interest of the
surviving heirs, but primarily for the protection of the
testator’s express wishes that are entitled to respect as
an effect of the ownership and right of disposition.
NOTE: There are two Guevara cases. The first speaks
of necessity of probate, while the second speaks of its
imprescriptibility.
Furthermore, the principle of estoppel
likewise does not apply to probate proceedings.
(Testate Estate of Obispo v. Obispo, 50 O.G. 614) It
would be non sequitur to allow public policy to be
evaded on the pretext of estoppel.
NOTE: Based on his discussion in 3B, Dean Aligada
seemed to have switched the two cases – Guevara
speaking of estoppel, while Obispo speaking of
prescription. It should be the other way around.
Probate of a revoked will.– To understand
this concept better, a distinction between an expressly
revoked will and an impliedly revoked will must first
be made.
An expressly revoked will cannot be
admitted to probate and its testamentary dispositions
become ineffective.
An implied revocation will not affect the will
itself but merely the particular devise or legacy.
Hence, it can be admitted for probate.
In other words, only total and absolute
revocation can preclude probate of a revoked will. 24
Foreign will probated abroad.– A will
already probated abroad need not be probated in the
Philippines again. However, another proceeding is
still required for the purposes of establishing the fact
that such will has been admitted for probate and
allowed in the foreign country concerned.
24 3 Caguioa 132
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Art. 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)
Dean Aligada no longer discussed this part with us.
INSTITUTION OF HEIRS
Article 840. Institution of heir is an act by
virtue of which a testator designates in his will the
person or persons who are to succeed him in his
property and transmissible rights and obligations. (n)
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)
Is it necessary that a will should contain an institution?
No, it is not necessary. A will can be valid
even though it contains no institution of an heir.
If a will is executed without an institution of an heir, how can
it pass property?
In case of absence of institution of an heir in a
will, the order of intestate succession shall be applied.
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.
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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)
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)
How does one institute an heir?
To institute an heir, the testator must
designate him by his name and surname.
If he is identical with another, some
circumstance must be stated to make the designated
heir known.
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)
Can an unknown person be instituted as an heir?
GR: No, an unknown person cannot be
instituted as an heir.
XPN: If he can be identified by some other
circumstance, an unknown person can be instituted as
an heir.
NOTE: It is essential that he must be identified;
otherwise, he is an unknown heir incapable of
succeeding.
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)
MEESEEKS NOTES ON SUCCESSION
Article 846. Heirs instituted without
designation of shares shall inherit in equal parts. (765)
In making an institution of an heir, is it enough that the heir
be identified without stating therein the amount of disposition
they should receive?
Yes, in this case, the heirs are considered to
inherit in equal amounts.
NOTE: In order for the equal sharing to apply, the
instituted heirs must belong to the same class;
otherwise, they won’t be sharing anything.
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 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)
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)
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)
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)
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)
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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)
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)
Preterition; definition.- As a term, it means
omission. The law defines it as the total omission of a
compulsory heir in the direct line.
Real Compulsory Heir.– A compulsory heir in
the direct line.
Under the new law: rights of an absolute
owner.
What may be the object of preterition?
The object of preterition may be a person (real
compulsory heir) or a property.
What are the effects if a property is alienated?
If it is preterited in the will, the rules
governing intestate succession will apply as to the
omitted parts.
If it is preterited in partition, the omitted parts
will be subjected to a collation first and will be subjected
to a further division.
Can there be preterition in case of a real compulsory heir
predeceasing the testator?
Yes, only if there is a right to representation.
Illustration:

NOTE: A mere omission of an heir does not amount to

a preterition. In order for preterition to exist, the TESTATOR
omitted heir must be a real compulsory heir.

Can an adopted child be preterated?

Under the old law, an adopted child cannot be

preterited because preteration occurs only if a real
A B C
compulsory is totally omitted. A real compulsory heir is
related by blood to the testator; however, an adopted (married) (married) (single)
child’s relationship with his adopter is only by fiction of (omitted)
law.
In this case, in the event that C predeceases the
Under the new law on adoption (Domestic
Testator, there is no preterition because there is no right
Adoption Act, RA 8552), an adopted child can be
of representation.
preterited. They can now be preterited because adopted
children are now given the same rights as a legitimate Illustration:
child without discrimination (Akain v. Diokson, 239 Phil
96).
TESTATOR
NOTE: A surviving spouse cannot be
preterated although a compulsory heir because she is
not in the direct line (Akain v. Diokson, 239 Phil 96).

What is the remedy of the surviving spouse if omitted from

the will? A B C
Their remedy lies in Art. 906, they may (married) (married) (married)
demand for the completion of their legitime. (omitted)
Rights of a surviving spouse.-

Under the old law: rights of a usufructuary

C1
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In this case, in the event that C predeceases the VOLUNTARY HEIR COMPULSORY HEIR
Testator, there is preterition because there is a right of
representation on the part of C1. In case of predecease, GR: In case of predecease,
incapacity or repudiation, incapacity or repudiation,
NOTE: Right of representation is a right by virtue of he transmits nothing to his he also transmits nothing
which the representative is raised to the place and the heirs. to his heir. However,
degree of the person represented, and acquires the when there is right of
rights which the latter would have if he were living or if representation he may
he could have inherited. transmit his rights to his
heirs.
It takes place in the direct descending line, and
in the collateral line, it takes place only in favor of the XPN: Right of
children of brothers or sisters, whether they be of the representation does not
full or half blood. apply in the case of
repudiation.
Is preterition the same as disinheritance?

No, they are not the same.

PRETERITION
It is the total omission of
an heir in the will because
he is neither mentioned;
or, he is mentioned but he
is not instituted as an heir
nor is he disinherited.
It is always voluntary
because it is expressly
made.
SUBSTITUTION OF HEIRS
DISINHERITANCE
Article 857. Substitution is the appointment
It is the deprivation of a
of another heir so that he may enter into the
legitime of a compulsory
inheritance in default of the heir originally instituted.
heir by virtue of a just
(n)
cause provided by law.
Article 858. Substitution of heirs may be:
(1) Simple or common;
It is presumed
(2) Brief or compendious;
involuntary but may be
voluntarily made. (3) Reciprocal; or

It only applies to real It applies only to (4) Fideicommissary. (n)

compulsory heirs. compulsory heirs.
Substitution; ways of substitution – The law
provides for four ways, namely:

Article 855. The share of a child or 1. Simple or common (vulgar);

descendant omitted in a will must first be taken from 2. Brief or Compendious;
the part of the estate not disposed of by the will, if 3. Reciprocal;
any; if that is not sufficient, so much as may be 4. Fideicommisary
necessary must be taken proportionally from the
shares of the other compulsory heirs. (1080a) NOTE: In reality, there are only two kinds of
substitution: simple (direct substitution) and
Article 856. A voluntary heir who dies before fideicommisary (indirect substitution). Reciprocal,
the testator transmits nothing to his heirs. brief, and compendious are mere variations of simple
substitution.
A compulsory heir who dies before the
testator, a person incapacitated to succeed, and one What is the purpose of substitution?
who renounces the inheritance, shall transmit no right
to his own heirs except in cases expressly provided for It is to prevent intestacy.
in this Code. (766a)
NOTE: Substitution allows only the free portion to be
Rights of an heir. – Such rights depend upon its subject because legitimes cannot be subject to
the kind of heir involved, voluntary or compulsory. substitution (Art. 904).

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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. (774)
Simple Substitution.– The designation of the
testator of a certain person or persons to substitute an
heir or heirs in case the latter:
(i) predeceases the testator (predecease);
(ii) repudiates the inheritance (repudiation); or
(iii) becomes incapacitated to succeed
(incapacity).
NOTE: The above mentioned are the causes
which allows substitution of heirs. Such grounds are not
exclusive.
Is it necessary for the testator to put the ground for
substitution?
As a rule, he must specify the ground for
substitution. However, if he fails to state the ground,
substitution can still take place on any of the
aforementioned causes.
Article 860. Two or more persons may be
substituted for one; and one person for two or more
heirs. (778)
Brief Substitution – a kind of substitution
where two or more persons are substituted in the place
of a single heir.
Compendious Substitution - a kind of
substitution where one person is substituted in the
place of two or more heirs.
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)
Article 862. The substitute shall be subject to
the same charges and conditions imposed upon the
instituted heir, unless and testator has expressly
MEESEEKS NOTES ON SUCCESSION
provided the contrary, or the charges or conditions are
personally applicable only to the heir instituted. (780)
Reciprocal Substitution.- It is a kind of
substitution where heirs are designated as substitutes of
one another.
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)
Fideicommissary Substitution.- It is a kind of
substitution where the testator designates two heirs: the
first one called a fiduciary heir who is imposed with the
obligation to preserve the thing inherited and transmit
the same to the second heir called the fideicommissary
heir.
Illustration:
A
B C
First heir, Second heir,
son of A, son of B,
ordered to substitutes B
preserve A’s in the
property and property.
transmit it to
C.
In the given illustration, if the estate amounts to 1,000,000
pesos, how much can the fideicommissary heir receive?
The fideicommissary heir can only 500,000
pesos because the substitution only applies to the free
portion. If there are compulsory heirs, remove the
legitimes first. B being a legitimate child of A, he is
entitled to ½ of A’s estate.
In what capacity does the first heir hold the inheritance?
He only holds it as a mere usufructuary
because he has the obligation to preserve the property
of the testator. In addition to this obligation, he is also
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prohibited to alienate such property because of his In this case, the father is one degree from the
corollary duty to transmit it to the second heir. child. The grandfather, on the other hand, is 2 degrees
from the child.
Is the capacity of a fiduciary heir the same as a reservor?
Article 864. A fideicommissary substitution
FIDUCIARY HEIR RESERVOR can never burden the legitime. (782a)
He is created by the will of He is created by law. Article 865. Every fideicommissary
the testator. substitution must be expressly made in order that it
may be valid.
He enjoys the property as He enjoys the property as The fiduciary shall be obliged to deliver the
a mere usufructuary. an owner. He may inheritance to the second heir, without other
alienate such property deductions than those which arise from legitimate
subject to its reservable expenses, credits and improvements, save in the case
nature. where the testator has provided otherwise. (783)

Article 866. The second heir shall acquire a

Why is the first heir called a fiduciary heir?
He is called a fiduciary heir because he holds
in trust or he is obligated to preserve the propertry
inherited from the testator until that moment of
transmission.
The law provides that the second heir must not go beyond
“one degree from the first heir. What does “one degree”
mean?
In the case of Ramirez v. Ramirez, if the second
heir pertains to a natural person, it means one degree of
relationship. Consequently, only the parent or child of a
fiduciary heir can be made a fideicommissary heir.
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)
How long can a fiduciary hold the property?
It depends.
If the testator gave a period or term, such must
be followed. Thus, the fiduciary holds the property up
until its expiration.
However, if there is no period or term given
by the testator, the fiduciary can hold the property
during his entire lifetime.

However, if the second heir pertains to a Is it essential that a period be given by the testator?
juridical person, it means one degree of transfer.
No, it is not necessary. It is presumed that the
How is one degree counted? testator wanted the first heir to enjoy the property
during his lifetime.
Always start counting from the progenitor.
From there, subtract one degree. Article 867. The following shall not take
effect:
Illustration:
(1) Fideicommissary substitutions which are
3 Grandfather minus 1 = 2 degrees not made in an express manner, either by giving them
this name, or imposing upon the fiduciary the
absolute obligation to deliver the property to a second
heir;

2 Father minus 1 = 1 degree (2) Provisions which contain a perpetual

prohibition to alienate, and even a temporary one,
beyond the limit fixed in article 863;

(3) Those which impose upon the heir the

Child charge of paying to various persons successively,
1 (Progenitor) beyond the limit prescribed in article 863, a certain
income or pension;

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(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.
(785a)
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)
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)
Can a testator, with respect to the property he leaves, give it
(the ownership) to another and give the right to use (usufruct)
to another?
Yes, the law allows it under Art. 869.
In the case of usufruct, make a distinction
between: simultaneous usufruct and successive
usufruct.
In simultaneous usufruct, all the usufructuary
can enter in the enjoyment of the property at the same
time.
In successive usufruct, the “one degree” rule
will apply. Thus, the first usufructuary must not be
beyond one degree of the second usufructuary.
Article 870. The dispositions of the testator
declaring all or part of the estate inalienable for more
than twenty years are void. (n)
CONDITIONAL TESTAMENTARY DISPOSITIONS
AND TESTAMENTARY DISPOSITIONS WITH A
TERM
Art. 871. The institution of an heir may be
made conditionally, or for a certain purpose or
cause. (790a)
Conditional Dispositions; Dispositions with
a Term.– Institution of heirs may be subject to a
condition, term, or a mode.
What are the kinds of conditions a testator may impose?
Any conditions may be imposed, such as:
1. Suspensive
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2. Resolutory;
3. Potestative;
4. Casual
5. Mixed
NOTE: It is only the free portion that can be subjected
to conditions for the legitime can never be burdened.
By not complying with the conditions
imposed by the testator, the compulsory heir merely
loses his right to the legacy, devise or the free portion
never the right to the legitime (Broce v. Marcellana, CA
L-10896, 1954).
Art. 872. The testator cannot impose any
charge, condition, or substitution whatsoever upon
the legitimes prescribed in this Code. Should he do so,
the same shall be considered as not imposed. (813a)
Art. 873. Impossible conditions and those
contrary to law or good customs shall be considered as
not imposed and shall in no manner prejudice the
heir, even if the testator should otherwise
provide. (792a)
Art. 874. An absolute condition not to
contract a first or subsequent marriage shall be
considered as not written unless such condition has
been imposed on the widow or widower by the
deceased spouse, or by the 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)
What is the rule on prohibitions to marry as a testamentary
condition?
If it is an absolute prohibition to marry, it
shall be deemed void and considered not written. The
institution or disposition remains valid. The reason for
its nullity is the violation of the right of an individual to
choose his own status.
However, as an exception, such absolute
prohibition to marry as a condition remains valid if
made by: (i) the testator; (ii) their descendants; or, (iii)
their ascendants, on the widow or widower.
If it is a relative prohibition to marry, relative
as to the person, time or place of marriage, it is
considered valid.
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However, if such relative impositions would,
in effect, absolutely prohibit a person to marry (i.e. a
person residing in the rural area is prohibited from
marrying anyone from the rural area and is required to
marry a person in the urban area, when such person has
no means to go to such a place), it will be considered as
an absolute prohibition to marry, thus deemed void.
If what is being bequeathed or devised is the
right of usufruct, or an allowance or some personal
prestation, regardless of an absolute or relative
prohibition to marry, such condition is still deemed
valid.
NOTE: The prohibition to marry partakes of a nature of
a resolutory condition.
What if the condition was to compel one to marry?
It remains valid because what the law
prohibits is the absolute prohibition to marry.
Art. 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)
Art. 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)
Art. 877. If the condition is casual or mixed, it
shall be sufficient if it happens 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)
Art. 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)
Art. 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
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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)
What is the difference between caucion muciana and caucion
juratoria?
CAUCION MUCIANA CAUCION JURATORIA
It is the security required It is the security given in
in lieu of a bond which lieu of a usufruct.
answers for the failure to
return the property
subject to the potestative
condition.
What is the effect of a potestative condition?
In the law on obligations, if such was imposed
on the debtor, the whole obligation will be void. If it
was, on the other hand, imposed on the creditor, the
obligation will remain valid.
In the law on succession, the institution or
disposition subject to such condition remains valid
because in succession, the testator cannot change the
condition since it is an act mortis cause.
Art. 880. If the heir be instituted under a
suspensive condition or term, the estate shall be
placed under administration until the condition is
fulfilled, or until it becomes certain that it cannot be
fulfilled, or until the arrival of the term.
The same shall be done if the heir does not
give the security required in the preceding
article. (801a)
When is the estate placed under administration?
1. During the pendency of fulfillment of a
suspensive condition;
2. If the heir does not give the required
security.
NOTE: If the disposition is subject to a
suspensive term, the legal heirs will enter into
the enjoyment of the estate upon giving
security and until the term has commenced
(Art. 885, par. 2)
Art. 881. The appointment of the
administrator of the estate mentioned in the preceding
article, as well as the manner of the administration
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and the rights and obligations of the administrator LEGITIMES

shall be governed by the Rules of Court. (804a)
Art. 886. Legitime is that part of the testator's
Art. 882. The statement of the object of the property which he cannot dispose of because the law
institution, or the application of the property left by has reserved it for certain heirs who are, therefore,
the testator, or the charge imposed by him, shall not called compulsory heirs. (806)
be considered as a condition unless it appears that
such was his intention. Legitime; definition - that part of the
testator’s property which he cannot dispose of because
That which has been left in this manner may the law reserves it in favor of certain heirs called
be claimed at once provided that the instituted heir or compulsory heirs.
his heirs give security for compliance with the wishes
of the testator and for the return of anything he or NOTE: “cannot dispose of” means disposal in a
they may receive, together with its fruits and interests, gratuitous manner. Such disposal does not apply to
if he or they should disregard this obligation. (797a) onerous dispositions (i.e. sale, gambling) because in this
case, the property is merely converted into another
When does an institution become a modal institution?
thing of value.
It is considered a modal institution whenever
Gratuitous disposition; 2 ways -
the testator states:
1. Donations (Donations inter vivos);
(i) the object or purpose of the institution;
2. By way of succession (Donations mortis
(ii) the application of the property left by the causa).
testator;
Purpose of legitimes - to protect the support
(iii) a charge imposed by the testator. which the heirs are entitled to as if the decedent was still
alive.
Art. 883. When without the fault of the heir,
an institution referred to in the preceding article Kinds of Legitimes -
cannot take effect in the exact manner stated by the
FIXED LEGITIMES VARIABLE LEGITIMES
testator, it shall be complied with in a manner most
analogous to and in conformity with his wishes. Its value does not change Its value changes
If the person interested in the condition despite the presence of depending on the
should prevent its fulfillment, without the fault of the concurring heirs (i.e. concurring heirs.
heir, the condition shall be deemed to have been surviving spouse and
complied with. (798a) illegitimate children)

Art. 884. Conditions imposed by the testator

upon the heirs shall be governed by the rules
What is the difference between legitimes and the free portion?
established for conditional obligations in all matters
not provided for by this Section. (791a) LEGITIMES FREE PORTION
Art. 885. The designation of the day or time
Legitimes cannot be The free portion can be
when the effects of the institution of an heir shall
disposed of or imposed freely disposed of or
commence or cease shall be valid.
with conditions. imposed with conditions.
In both cases, the legal heir shall be
Only the compulsory heirs All kinds of heirs may be
considered as called to the succession until the arrival
of the period or its expiration. But in the first case he are entitled to the entitled to the free portion.
shall not enter into possession of the property until legitimes.
after having given sufficient security, with the
intervention of the instituted heir. (805)

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What is the difference between the free portion and the
absolute free portion?
FREE PORTION
That part of the testator’s
estate which remains after
the legitimes of the
primary compulsory heirs
have been taken out.
ABSOLUTE FREE
PORTION
That part of the testator’s
estate which remains after
the legitimes of the
surviving spouse and the
illegitimate children have
been taken out..
What are the 2 kinds of heirs?
VOLUNTARY HEIRS
Those heirs instituted in a
will in order to succeed.
They inherit only by
virtue of a will.
COMPULSORY HEIRS
Those heirs who need not
be instituted in a will
because the law reserves
for their favor a certain
part of the testator’s estate.
They inherit by operation
of law.

The legitimes of the
surviving spouse and the
illegitimate children must
still be respected.
This can be given to
anyone by the testator.
What they receive is part
of the free portion.
Primary compulsory heirs
do not receive from the
free portion. The law
specifically reserves a part
of the testator’s estate in
their favor.

NOTE: In case the legitimes of the surviving spouse

and the illegitimate children exceed the free portion,
only the legitimes of the illegitimate children may be Compulsory heirs - in our present laws, the
reduced but never that of the surviving spouse. following are compulsory heirs:

Art. 887. The following are compulsory heirs: 1. Legitimate children and descendants of
the testator;
(1) Legitimate children and descendants, 2. The adopted children of the testator;
with respect to their legitimate parents and
ascendants;
NOTE: Adopted children now possess the
(2) In default of the foregoing, legitimate same rights as that of a legitimate child (RA
parents and ascendants, with respect to their 8552, Domestic Adoption Act);
legitimate children and descendants;
3. In the absence of the aforementioned
(3) The widow or widower;
heirs, the legitimate ascendants and
(4) Acknowledged natural children, and descendants of the testator;
natural children by legal fiction; 4. Surviving spouse (widow or widower) of
the testator, despite presence of the
(5) Other illegitimate children referred to in
aforementioned heirs;
Article 287.

Compulsory heirs mentioned in Nos. 3, 4,
and 5 are not excluded by those in Nos. 1 and 2;
neither do they exclude one another.
In all cases of illegitimate children, their
filiation must be duly proved.
The father or mother of illegitimate children
of the three classes mentioned, shall inherit from them
in the manner and to the extent established by this
Code. (807a)
When does a spouse become a surviving spouse?
When there is a valid marriage between that
spouse and the testator.
In the case of Enrico v. Heirs of Sps. Medinacelli,
children of the deceased have no locus standi in the
declaration of nullity or annulment of their parents’
marriage. Such right is exclusively given to the spouses
by virtue of A.M. No. 02-11-10-SC, under the Family
Code. Furthermore, such right can only be exercised
during the spouses’ lifetime.

In the case of Niñal v. Bayadog, on the other

hand, children can question the validity of their parents’

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WILLS AND SUCCESSION
marriage. They can do so during the settlement of their
parents’ estate, however, they cannot bring a primary
action questioning such validity.
NOTE: If the contested marriage was contracted during
the effectivity of the New Civil Code, the Niñal doctrine
applies. If it was contracted during the effectivity of the
Family Code, the Enrico doctrine applies.
Thus, it could be said presently, only the
spouses may bring the action questioning their
marriage’s validity. Not even the State can interfere.
5. Illegitimate children, despite the presence
of the aforementioned heirs.
NOTE: Under the Family Code, mere proof of filiation
made by the illegitimate child entitles him to inherit
from the testator (Art. 175, E.O. 209, Family Code).
Under the present law (Family Code), only one
kind of illegitimate child is recognized, that being a
natural illegitimate child. Under the old law (New Civil
Code), there are two kinds of illegitimate children:
spurious illegitimate children and natural illegitimate
children. The former pertains to those born outside of a
valid wedlock whose parents are with a legal
impediment to marry each other, while the latter
pertains to those whose parent are not suffering from
any legal impediment to marry each other.
Art. 888. The legitime of legitimate children
and descendants consists of one-half of the hereditary
estate of the father and of the mother.
The latter may freely dispose of the
remaining half, subject to the rights of illegitimate
children and of the surviving spouse as hereinafter
provided. (808a)
Art. 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)
Art. 890. The legitime reserved for the
legitimate parents shall be divided between them
equally; if one of the parents should have died, the
whole shall pass to the survivor.
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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)
Art. 891. The ascendant who inherits from his
descendant any property which the latter may have
acquired by gratuitous title from another ascendant, or
a brother or sister, is obliged to reserve such property
as he may have acquired by operation of law for the
benefit of relatives who are within the third degree
and who belong to the line from which said property
came. (871)
Reserva Troncal; definition.– It is a special
rule designed primarily to assure the return of a
reservable property to the third degree relatives
belonging to the line from which the property originally
came, and avoid its being dissipated into and by the
relatives of the inheriting ascendant.
Purpose of Reserva Troncal.- Its purpose os to
prevent the transfer of property to the other line.
Parties - The following are the parties in a
Reserva Troncal:
1. Origin;
2. Praepositus;
3. Reservista or Reservor;
4. Reserva or Reservee
Same; Origin - these may be ascendants,
brothers, or sisters of the propositus. The property
subject of reserva troncal comes from them. They
dispose of such property gratuitously in favor of the
praepositus.
Same; Praepositus - a descendant, or a sibling
of the origin. He receives the property from the origin
by a gratuitous title.
NOTE: He is deemed an absolute owner of the property
received from the origin, thus, he may alienate said
property in any way he wants. For this matter, he is also
known as the arbiter of Reserva Troncal because it is up
to his acts if said property would be reservable or not.
Is the manner of acquiring the property by the descendant
(praepositus) from the ascendant (origin) and transmitting
the property to the other ascendant (reservor) from the
descendant (praepositus) the same?
No, they are not the same.
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If the transfer is from the origin to the
praepositus, the property must pass by gratuitous title.
If the transfer is from the praepositus to the
reservor, the property must pass by operation of law
and without any issue.
Same; Reservista or Reservor - Another
ascendant of the praepositus. He receives the property
from the praepositus and has the obligation to reserve it
in favor of the praepositus’ relatives within the third
degree.
NOTE: In order for the property to be
reservable, the reservista must receive such property by
operation of law and without any issue.
What does “without issue” mean?
It means that the praepositus must not have
any descendants, for in that case, the property will go
down to the descendants. Thus, no Reserva Troncal has
been created in this case.
What is the reservor’s right over the reservable property?
He only has the right of ownership.
Can the reservor destroy, alienate, etc. the reservable
property?
Yes, but he will be liable to the reserves to the
value of the property.
Can the reservable property be used to satisfy the reservor’s
debts?
During the lifetime of the reservor, the
reservable property falls under his assets; thus, it can be
used to satisfy his debts.
However, if the testator is already dead, it
cannot be used to satisfy his debts because it
automatically passes in favor of the reservees.
What is the difference between a fiduciary heir and a
reservor?
FIDUCIARY HEIR RESERVOR
He has the obligation to A reservor does not hold
hold, preserve and deliver such obligations.
the property kept by him.
He enjoys the property as He enjoys the property as
a mere usufructuary. an owner. He may
alienate such property
subject to its reservable
MEESEEKS NOTES ON SUCCESSION
nature.
He cannot dispose of the He can dispose of the
property because of his reservable property but it
obligations to the same. is subject to its reservable
character.
NOTE: The fiduciary heir’s obligations are predicated
or sourced upon the mandate of the testator not by law.
Same; Reserva or Reservee.- These are
relatives within the third degree of the praepositus,
within the same line where the origin belongs to. They
are the ones entitled to the reserved property.
What is the Double Degree of Relationship Rule?
This rule provides that the reservee must be
related by consanguinity to the origin AND the
praepositus. The reason for this rule is the very purpose
of Reserva Troncal, that is, to prevent the transfer of the
property from one line to another.
Can an adopted child be a reservee?
DEAN ALIGADA’S VIEW: No, an adopted child
cannot be a reservee because of the double degree of
relationship rule.
Despite the passing of RA 8552 (Domestic
Adoption Act), such rights of the adopted as a
reservee is not affected or granted. However, by
virtue of such law, the adopted child may be
preterited.
When does the reservee acquire the right to the reservable
property?
The reservee acquires the actual right over the
reservable property upon the death of the reservor.
However, during the lifetime of the reservor,
the reservee only has a mere inchoate right over the
reservable property.
May the reservees right to the reservable property be
alienated?
As held in the case of Edroso v. Sablan, such
right cannot be alienated during the lifetime of the
reservor for it is a mere inchoate right.
However, in the case of Sienes v. Esparcia, the
Supreme Court ruled that such right may be alienated
by the reservee during the lifetime of the reservor; but,
such alienation is neither absolutely valid or absolutely
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void - it is conditionally valid. It is regarded as such What is the remedy of the reservees who lost the property to a
because it depends upon the reservee surviving the purchaser in good faith and for value?
reservor. If the reservee instead predeceases the
They may acquire the value of the reservable
reservor, the alienation would be void.
property from the reservor. This may be answered by
What must the reservees do to preserve the right over the the reservor with his other properties.
reservable property?
When does the reservees become entitle to the reservable
They may annotate on the title of the property property?
its reservable character. The purpose of this annotation
Upon the death of the praepositus.
is to give notice to the whole world that the property is
reservable. What proceeding must the reservee commence to get the
reservable property?
Is annotation essential to make the property reservable?
No need for any proceedings, it is transferred
No, it is not essential. It is deemed reservable
to him by operation of law.
at that moment it falls in the hands of the reservor by
operation of law. How must all the parties to a reserva troncal be related to one
another?
Upon such annotation, is the reservor still deemed as the
owner thereof? The relationship existing between the parties
must be legitimate (Nieva v. Alcala, 41 Phil. 915).
Yes, the reservor continues to be the owner of
such reservable property despite such annotation. The
annotation merely serves as notice to third persons the
reservable character of such property. Does that mean that each party must be legitimately related to
one another?
When must the annotation be placed?
No, it only means that the parties must be
Under the Spanish Mortgage Law, it must be legitimately related to the praepositus. The focal point is
placed within 90 days from the praepositus death. the praepositus.
However, under Act 496 (Land Registration Act, Illustration:
P.D. 1529), it did not specify the period for such
annotation; thus, it can be made anytime. Another
Ascendant ascendant
Before such annotation, how will the property look like?
Origin Reservor
It will appear as a free property. Thus, before
such annotation, the reservor may still alienate such 1st
property and the purchaser in good faith and for value transfer: 2nd transfer:
by by operation
thereof may rely on what it appears to be.
Reservee gratuitous of law and
What is the difference before and after the annotation of its title without issue
reservable character? Relative within
third degree;
Before such annotation, the buyer or purchaser same line as the
thereof may still acquire it in good faith and for value. origin;
Praepositus
related by descendant
However, if there is an annotation, the buyer consanguinity to
or purchaser thereof is bound by its reservable origin and
character. praepositus

NOTE: The right of the reservees cannot defeat the right

of a purchaser in good faith and for value. If placed in
the hands of such purchaser, the reservees have deemed
lost the property.

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Grounds for Extinguishing Reserva Troncal.-
1. Death of the reservor;
2. Death of all the reservees;
3. Loss of the reservable property without
the reservor’s fault;
4. Extraordinary Aquisitive Prescription
5. Passing of reservable property into the
hands of a buyer in good faith and for
value;
6. Renunciation or waiver of all reservees
NOTE: If the waiver is done after the reservor’s death, it
releases the property from its reservable character if all
the reservees renounce. However, if only some of the
reservees renounces, there is still Reserva Troncal as to
the remaining parts if the property is divisible.
If the waiver is done before the reservor’s
death, the renunciation is valid and terminates the
Reserva Troncal provided no subsequent relatives are
born within the third
Art. 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)
Art. 893. If the testator leaves no legitimate
descendants, but leaves legitimate ascendants, the
surviving spouse shall have a right to one-fourth of
the hereditary estate.
This fourth shall be taken from the free
portion of the estate. (836a)
Art. 894. If the testator leaves illegitimate
children, the surviving spouse shall be entitled to one-
third of the hereditary estate of the deceased and the
illegitimate children to another third. The remaining
third shall be at the free disposal of the testator. (n)
Art. 895. The legitime of each of the
acknowledged natural children and each of the
natural children by legal fiction shall consist of one-
MEESEEKS NOTES ON SUCCESSION
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)
Art. 896. Illegitimate children who may
survive with legitimate parents or ascendants of the
deceased shall be entitled to one-fourth of the
hereditary estate to be taken from the portion at the
free disposal of the testator. (841a)
Art. 897. When the widow or widower
survives with legitimate children or descendants, and
acknowledged natural children, or natural children by
legal fiction, such surviving spouse shall be entitled to
a portion equal to the legitime of each of the
legitimate children which must be taken from that
part of the estate which the testator can freely dispose
of. (n)
Art. 898. If the widow or widower survives
with legitimate children or descendants, and with
illegitimate children other than acknowledged
natural, or natural children by legal fiction, the share
of the surviving spouse shall be the same as that
provided in the preceding article. (n)
Art. 899. When the widow or widower
survives with legitimate parents or ascendants and
with illegitimate children, such surviving spouse shall
be entitled to one-eighth of the hereditary estate of the
deceased which must be taken from the free portion,
and the illegitimate children shall be entitled to one-
fourth of the estate which shall be taken also from the
disposable portion. The testator may freely dispose of
the remaining one-eighth of the estate. (n)
Art. 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
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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)
Art. 901. When the testator dies leaving
illegitimate children and no other compulsory heirs,
such illegitimate children shall have a right to one-
half of the hereditary estate of the deceased.
The other half shall be at the free disposal of
the testator. (842a)
Art. 902. The rights of illegitimate children
set forth in the preceding articles are transmitted upon
their death to their descendants, whether legitimate or
illegitimate. (843a)
Art. 903. The legitime of the parents who
have an illegitimate child, when such child leaves
neither legitimate descendants, nor a surviving
spouse, nor illegitimate children, is one-half of the
hereditary estate of such illegitimate child. If only
legitimate or illegitimate children are left, the parents
are not entitled to any legitime whatsoever. If only the
widow or widower survives with parents of the
illegitimate child, the legitime of the parents is one-
fourth of the hereditary estate of the child, and that of
the surviving spouse also one-fourth of the estate.
(n)fa

COMBINATIONS OF LEGITIMES IN TESTATE SUCCESSION 25

Legitimate children alone ½ of the estate divided equally

One legitimate child and Legitimate children = ½ of the estate

surviving spouse Surviving spouse = ¼ of the estate

Note: If there has been legal separation, DISTINGUISH:

a) If the deceased is the guilty spouse, the surviving spouse gets

his/her legitime;

b) If the deceased is the innocent spouse, the surviving spouse,

being the guilty spouse, is disqualified from inheriting;

c) If after final decree of legal separation, there was reconciliation

between the spouses, the reciprocal right to succeed is
restored. 26

In case an action for legal separation has been filed and either spouse
dies pendente lite, the surviving spouse inherits from the deceased
spouse. (Lapuz-Sy v. Eufemio, 43 SCRA 177, 1972) 27

Legitimate children and Legitimate children = ½ of the estate

surviving spouse
One legitimate child and
surviving spouse
Legitimate children and
illegitimate children
Legitimate children, illegitimate
children, and surviving spouse
Surviving spouse = a share equal to that of one child
Legitimate children = ½ of the estate
Surviving spouse = ¼ of the estate
Legitimate children = ½ of the estate
Illegitimate children = ½ of the share of one legitimate child
Legitimate children = ½ of the estate
Surviving spouse = a share equal to that of one child
Illegitimate children = ½ of the share of one legitimate child

Note: The share of the surviving spouse shall be preferred over those of the
illegitimate children, which can be reduced if necessary. The legitime of the

25 Balane, 2016 ed., p. 346-348

26 Ibid., p. 357
27 Ibid., p. 358

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surviving spouse can never be reduced.

It is possible that the illegitimate child will not inherit anything by way of
legitime if it is necessary to complete the legitime of the surviving spouse.
One legitimate child, illegitimate Legitimate child = ½ of the estate
children, and surviving spouse Surviving spouse = ¼ of the estate
Illegitimate children = ½ of the share of the legitimate child
Legitimate parents alone ½ of the estate

Legitimate parents and Legitimate parents = ½ of the estate

illegitimate children Illegitimate children = ¼ of the estate

Legitimate parents and surviving Legitimate parents = ½ of the estate

spouse Surviving spouse = ¼ of the estate

Legitimate parents, illegitimate Legitimate parents = ½ of the estate

children, and surviving spouse Illegitimate children = ¼ of the estate
Surviving spouse = 1/8 of the estate

Surviving spouse alone ½ of the estate OR

Illegitimate children and
surviving spouse
Illegitimate parents and
surviving spouse
Illegitimate children alone
1/3 of the estate if the marriage was celebrated in articulo mortis
Surviving spouse = 1/3 of the estate
Illegitimate children = 1/3 of the estate
Surviving spouse = ¼ of the estate
Illegitimate children = ¼ of the estate
½ of the estate

Illegitimate parents alone ½ of the estate

compulsory heir is deprived of his legitime for causes

DISINHERITANCE expressly stated by law. 28

Article 915. A compulsory heir may, in It must be remembered that disposition of

consequence of disinheritance, be deprived of his
legitime, for causes expressly stated by law. (848a)
Article 916. Disinheritance can be effected
only through a will wherein the legal cause therefor
shall be specified. (849)
Disinheritance; Concept and Definition.–
Disinheritance is the act of the testator in depriving a
compulsory heir of his legitime.
This implies that there can be no
disinheritance in voluntary heirs, because they have
no legitime. Also, there can be no disinheritance in the
case of intestate succession because Art. 916 provides
that disinheritance can only be made through a will.
Thus, it only applies to testate succession.
Disinheritance has also been defined as the
testamentary disposition by virtue of which a
property can be made directly or indirectly. (Merza v.
Porras, supra.) So, if a will contains no disposition of
property and only a provision on disinheritance, it
will still be valid.
Purpose of the law.– The objective of the
law on Disinheritance is to soften the impact
produced by the law on legitimes.
The law on legitimes is a restriction on the
property rights of a person. This is so because a
person cannot dispose of a portion of his property to
whoever he wants because it is reserved by law for
the benefit of his compulsory heirs.
Effects of disinheritance.– Disinheritance
produces the following effects:
1. It deprives a compulsory heir of his
legitime and is one of the cases where a
compulsory heir may not be entitled to
the legitime reserved to him by law;

28 3 Caguioa 293, citing Castan

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 Civil Code of the Philippines
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2. It makes a compulsory heir lose all
legacies in his favour because the
grounds of disinheritance are also
grounds of unworthiness; and
3. It deprives the disinherited heir the
right to inherit by intestate succession.
REASON: Intestate succession is merely
presumed by law, and the implied
cannot contradict the express will of the
testator that that heir cannot inherit.
Hence, disinheritance results in total
disqualification of the heir from receiving anything
from the testator.
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)
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)
Requisites of disinheritance.– The
following are the requisites:
1. It must be made in a will;
2. It must be based on a cause that is legal,
expressly stated in the will and certain
and true;
3. It must be total; and
4. It must be unconditional.
An additional requisite is that the
disinherited heir be identified or at least identifiable. 29
How disinheritance is carried out.– It is
made by the testator in a will and he must state the
grounds or causes relied upon for disinheriting a
compulsory heir that is provided by law.
The causes must be one of those provided by
law because it cannot be left to the free will of the
testator, so that the purpose of the law would not be
rendered nugatory.
The testator need not prove the truthfulness
of the ground relied upon. It is sufficient for the
testator to mention merely the act constituting the
ground.
29 3 Caguioa 296
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It need not be made in the same will where
the dispositions of the testator’s property are made. It
may be in a will or codicil whatsoever provided that it
is validly executed.
All the formal requisites must be complied
with.
Total and unconditional.– There can be no
partial disinheritance or partial pardon. It must be
total. There can be no middle ground.
Disinheritance, likewise, cannot be
conditional. It cannot be made subject to a suspensive
condition because the law contemplates that the cause
for disinheritance has already been realized and is
known to the testator. It provides that the cause must
be certain and true.
However, pardon by the testator may be
conditional provided that the condition is related to
the cause for disinheritance and not merely because of
the whims of the testator.
Hence, conditional pardon is allowed, but
never conditional disinheritance.
Burden of proof.– All the disinherited heir
must do is to simply deny the statement of the cause
for his disinheritance.
The other heirs have the burden of proving
the truth behind the statement of the cause of
disinheritance. The ground must exist in reality so
that the other heirs may be able to prove it if denied.
The reason for this rule is because the other
heirs are the ones who will benefit from the share of
the disinherited heir.
The burden of proof shifts to the disinherited
heir to prove the falsity of the cause in case the other
compulsory heirs succeed in proving the truth of the
cause.
If no denial is made do the other heirs carry the obligation
to prove the truth?
Yes, there is a need for the heirs to prove the
truthfulness of the statement of the testator.
Defective disinheritance.– A disinheritance,
which is made without a specification of the cause or
with a cause, the truth of which if contradicted, is not
proven or which is not of those enumerated by the
law as a ground for disinheritance, is fatally defective.
The effect produced is the annulment of the
institution of heirs insofar as it may prejudice the
compulsory heir that is disinherited. However, the
devises and legacies and other testamentary
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dispositions that do not impair the legitime are not (6) Maltreatment of the testator by word or
affected and continue to be valid. deed, by the child or descendant;
A defective disinheritance is not the same as (7) When a child or descendant leads a
preterition, since it does not totally annul the dishonorable or disgraceful life;
institution of heirs. (8) Conviction of a crime which carries with
Defective disinheritance and preterition it the penalty of civil interdiction. (756, 853,
distinguished.– The following are the differences: 30 674a)
Article 920. The following shall be sufficient causes
DEFECTIVE
PRETERITION for the disinheritance of parents or ascendants,
DISINHERITANCE
whether legitimate or illegitimate:
There is a reason, There is no cause or
however it is not reason for the (1) When the parents have abandoned their
proven, mentioned, omission. children or induced their daughters to live
or allowed by law. a corrupt or immoral life, or attempted
against their virtue;
Annuls the Annuls the entire
institution insofar institution, (2) When the parent or ascendant has been
as it may prejudice producing total convicted of an attempt against the life of
the disinherited heir intestacy or partial the testator, his or her spouse, descendants,
intestacy or ascendants;

Any compulsory Compulsory heir in (3) When the parent or ascendant has
heir though not in the direct line is accused the testator of a crime for which the
the direct line deprived law prescribes imprisonment for six years
or more, if the accusation has been found to
The defectively The preterited heir be false;
disinherited heir may receive more
(4) When the parent or ascendant has been
will only receive his than his legitime
convicted of adultery or concubinage with
legitime
the spouse of the testator;
(5) When the parent or ascendant by fraud,
Article 919. The following shall be sufficient causes violence, intimidation, or undue influence
for the disinheritance of children and descendants, causes the testator to make a will or to
legitimate as well as illegitimate: change one already made;

(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) 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)
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;

30 Ibid., p. 162

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WILLS AND SUCCESSION
(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)
Persons that can be disinherited.– The
following persons may be disinherited:
1. Children or descendents;
2. Parents or ascendants; and
3. Surviving spouse.
Exclusive enumeration.– Articles 919 to 921
enumerate the grounds on which disinheritance may
be based. This enumeration is exclusive. Aside from
these, no other grounds are available to the testator.
Common causes or grounds.– The common
grounds are the following:
1. An attempt against the life of the
testator, his or her spouse, descendants
or ascendants;
2. The person disinherited has accused the
testator of a crime for which the law
prescribes a penalty of 6 years or more if
the accusation has been found
groundless or false;
3. The person disinherited causes the
testator to make a will or to change one
already made by fraud, violence,
intimidation or undue influence; and
4. A refusal to give support the testator,
the children or descendants without just
cause.
Children or Descendants
The grounds for disinheriting children,
whether legitimate or illegitimate, are based on acts of
ingratitude and unworthiness.
Attempt against the life of the testator.–
This covers consummated, attempted, and frustrated
parricide, murder or homicide, but requires final
judgment or conviction
Accusation of a crime.– Two requirements
must concur here:
MEESEEKS NOTES ON SUCCESSION
1. The crime charged is punishable by
imprisonment for 6 years or more; and
2. The accusation has been found
groundless.
“Groundless” means without any ground, or
malicious.
Conviction of adultery or concubinage with
the spouse of the testator.– A conviction of final
judgment is required for this ground.
Causing the testator to make or change a
will by unlawful means.– So long as the heir to be
disinherited causes the testator to make a will or
change one already made by unlawful means, this
ground can be used as basis of disinheritance. The
change need not be in favour of the child or
descendant. 31
Refusal without just cause to give support.–
The refusal must be unjustified. In order that the
refusal, being unjustified, may be a ground for
inheritance, it is not necessary that there be judicial
demand. Any refusal of a just demand for support is
sufficient. 32
Maltreatment of testator by word or deed.–
No need of a conviction by a court. The maltreatment
by word or slander must be understood in its
ordinary sense. Ordinary insults are included.
Leading a dishonourable or disgraceful
life.– As explicitly and repeatedly stated by Dean
Aligada in his commentary, homosexuality is not in
itself tantamount to living a shameful or disgraceful
life. Hence, it cannot be made the basis of
disinheritance.
Civil interdiction.– There must be a
judgment condemning the heir to civil interdiction
before the disinheritance.
Parents or Ascendants
Abandonment of children.– What the law
contemplates here is total forgetfulness of duties as
parents. Mere failure to provide support is
insufficient.
Loss of parental authority.– There must be a
judgment depriving the parents of parental authority.
Mere existence of the ground is insufficient. There
must be actual deprivation or loss of parental
authority.
31 3 Caguioa 302
32 Ibid.
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If parental authority is restored, the effect is
subject to debate. One view submits that it restores to
the parents the right to succeed and any
disinheritance already made shall be rendered void,
because the ground relied upon for disinheritance no
longer exists. 33 Another view submits that the
disinheritance will remain in effect since the basis is
not the loss of parental authority but the offense
committed by the offender. 34
Attempt by one parent against the life of
the other parent.– This covers consummated,
attempted or frustrated parricide. The intent to kill
must be present and there is no need of final
judgment of conviction for this to be a ground for
disinheritance.
NOTE: The ground, however, may be extinguished
by reconciliation of the parents. The pardon of the
spouse is presumed to be the pardon of the children
as well.
Surviving Spouse
Giving cause for legal separation or loss of
parental authority.– The mere existence of a ground
for either legal separation or loss of parental authority
is sufficient.
Loss of parental authority.– See discussion of
the same topic in page 35.
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)
Effect of reconciliation.– If reconciliation
was made before the disinheritance it deprives the
testator of the right to disinherit. If it was made after
the disinheritance, it renders the disinheritance
ineffective. 35
Reconciliation and pardon are not the same.
The former is bilateral because it requires the consent
and acceptance by the disinherited heir, while the
latter is unilateral.
Incapacity to succeed.– When the testator
makes a ground of unworthiness a cause of
disinheritance, he converts the former into the latter,
and it ceases to be a ground of unworthiness so that
once reconciliation occurs the disinheritance becomes
ineffectual. The heir will not inherit because he is
33 3 Jurado 339, citing Manresa; 3 Caguioa 306, citing
Manresa
34 3 Jurado 339, citing Sanchez Roman
35 3 Caguioa 308
MEESEEKS NOTES ON SUCCESSION
incapacitated to succeed, not because he has been
disinherited. 36
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)
Reason behind the law.– The deprivation of
legitime is but just if it applies to the heir who is truly
guilty, but where the consequence of the deprivation
would likewise affect the children of the disinherited
heir leaving them abandoned, the disinheritance is
iniquitous. Such an effect must be avoided insofar as
the descendants are concerned.
Applicability of the provision.– This applies
only where children or descendants are disinherited.
The right of representation exists in the descending
line and never in the ascending. The spouse has no
right of representation. Hence, it only applies to
children or descendants.
LEGACIES AND DEVISES
Art. 924. All things and rights which are
within the commerce of man be bequeathed or
devised. (865a)
Is a legacy the same as a devise?
No, they are not the same.
LEGACY DEVISE
It is a gift of It is a gift of real
personal property. property.
Art. 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)
Art. 926. When the testator charges one of
the heirs with a legacy or devise, he alone shall be
bound.
36 3 Caguioa 309
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Should he not charge anyone in particular, all shall
be liable in the same proportion in which they may
inherit. (859)
Art. 927. If two or more heirs take
possession of the estate, they shall be solidarily
liable for the loss or destruction of a thing devised
or bequeathed, even though only one of them
should have been negligent. (n)
Art. 928. The heir who is bound to deliver
the legacy or devise shall be liable in case of
eviction, if the thing is indeterminate and is
indicated only by its kind. (860)
Art. 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)
Art. 930. The legacy or devise of a thing
belonging to another person is void, if the testator
erroneously believed that the thing pertained to
him. But if the thing bequeathed, though not
belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the
disposition shall take effect. (862a)
Art. 931. If the testator orders that a thing
belonging to another be acquired in order that it be
given to a legatee or devisee, the heir upon whom
the obligation is imposed or the estate must acquire
it and give the same to the legatee or devisee; but if
the owner of the thing refuses to alienate the same,
or demands an excessive price therefor, the heir or
the estate shall only be obliged to give the just value
of the thing. (861a)
Can a property not belonging to the testator be subject to a
legacy?
Yes, in the following instances:
1. Property acquired by the testator by
whatever title after bequeathing such as a legacy or
devise.
2. Those properties belonging to a third
person which the legacy is charged to an heir, legatee
or devisee.
NOTE: Should the third person refuse to give such
property or ask for an unreasonable price therefor the
heir, legatee or devisee charged with such legacy or
devise with the legacy must give the just value of the
property.
MEESEEKS NOTES ON SUCCESSION
Art. 932. The legacy or devise of a thing
which at the time of the execution of the will
already belonged to the legatee or devisee shall be
ineffective, even though another person may have
some interest therein.
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)
Art. 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)
Art. 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)
Art. 935. The legacy of a credit against a
third person or of the remission or release of a debt
of the legatee shall be effective only as regards that
part of the credit or debt existing at the time of the
death of the testator.
In the first case, the 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)
Art. 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)
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Art. 937. A generic legacy of release or Extent of Effectivity.- That part of the credit
remission of debts comprises those existing at the existing at the time of the testator’s death. It also
time of the execution of the will, but not subsequent extends to interests due and unpaid at the time of
ones. (872) testator’s death.

Art. 938. A legacy or devise made to a How does the executor or administrator fulfill his duty in
creditor shall not be applied to his credit, unless the this kind of legacy?
testator so expressly declares. He fulfills it either by: (i) collecting the credit
and deliver the proceeds to the legatee; and, (ii) by
In the latter case, the creditor shall have the assigning all the rights to the legatee.
right to collect the excess, if any, of the credit or of
the legacy or devise. (837a)
Art. 940. In alternative legacies or devises,
Art. 939. If the testator orders the payment the choice is presumed to be left to the heir upon
of what he believes he owes but does not in fact whom the obligation to give the legacy or devise
owe, the disposition shall be considered as not may be imposed, or the executor or administrator of
written. If as regards a specified debt more than the the estate if no particular heir is so obliged.
amount thereof is ordered paid, the excess is not
due, unless a contrary intention appears. If the heir, legatee or devisee, who may
have been given the choice, dies before making it,
The foregoing provisions are without this right shall pass to the respective heirs. Once
prejudice to the fulfillment of natural obligations. made, the choice is irrevocable.
(n)
In the alternative legacies or devises, except
Legacy of Remission; Legacy of Credit - as herein provided, the provisions of this Code
regulating obligations of the same kind shall be
LEGACY OF LEGACY OF CREDIT observed, save such modifications as may appear
REMISSION from the intention expressed by the testator. (874a)
What is What is
bequeathed: the bequeathed: the What is an alternative legacy or devise?
condonation or right to enforce an
remission of a debt. outstanding credit It involves the exercise of a right of choice.
against a third
NOTE: Legatee, in How does it take place?
person.
this case, is also a
debtor of the NOTE: To enable There is an alternative legacy or devise when
testator. the legatee to collect the testator bequeathes to the legatee or devisee one
the credit, an or more things that he designates.
assignment of credit Who holds this right to choose?
must be given to
him. It depends upon the person designated by
the testator. If there is no such designation, such right
Deed of Assignment of Credit - the is presumed to be in the executor or administrator of
document evidencing the debt. Without such the estate.
document, the legatee cannot enforce the credit
because there would be no privity of contract. NOTE: Once the choice is made, it is deemed
irrevocable.
Revocation of Legacies of Credit or
Remission - These legacies are deemed revoked if a What would happen if such right was not exercised?
judicial action is brought by the testator after the
execution of his will for the recovery of the credit or It depends.
debt.
If the reason why it wasn’t exercised is the
However, if it is an extra-judicial action or death of the heir, legatee or devisee entitled to such
demand, there is no revocation. right, it passes to their respective heirs.

But if it was the executor or administrator

who died, it is transferred to their successor-in-office.

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NOTE: Until the person with right to choose makes
such choice, the object of the alternative legacy is yet
to be known. Thus, the rules on generic legacies will
apply.
Art. 941. A legacy of generic personal
property shall be valid even if there be no things of
the same kind in the estate.
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.

A devise of indeterminate real property If the testator or during his lifetime used to
shall be valid only if there be immovable property give the legatee a certain sum of money or other
of its kind in the estate. things by way of support, the same amount shall be
deemed bequeathed, unless it be markedly
The right of choice shall belong to the disproportionate to the value of the estate. (879a)
executor or administrator who shall comply with the
legacy by the delivery of a thing which is neither of What is the difference between a Legacy of
inferior nor of superior quality. (875a) Education and a Legacy for Support?
Generic Legacies; Definition - legacy of
LEGACY OF
things undefined but compromised in a kind or specie LEGACY OF SUPPORT
EDUCATION
determined by nature or by designation.
It may extend It lasts during the
Rules - beyond the age of lifetime of the
1. This kind of legacy should contain majority in order legatee, unless the
particulars to avoid impossibility in its fulfillment. that the legatee may testator provides
finish the course. otherwise.
2. If there is no such generic personal
properties in the estate the legacy shall nonetheless be
valid. However, if there is no indeterminate real Legacy of Education - To be entitled to this
property in the estate of the testator, such legacy is legacy, the legatee thereof has the primary duty to
void. pursue the course diligently.

NOTE: In case of movables, the substitution of the
same kind may be made because its genus is
determined by its nature. In the case of immovables,
such substitution is not possible because their
limitations and individualizations are dependent
upon the will of man.
3. The thing to be given must not be inferior
or superior in quality.
Diligent Pursuit - it means the studying
regularly as a normal student does in the pursuit of
his course.
NOTE: If despite such pursuit he fails, such
fact does not affect the legacy provided he does not
dissipate the funds/assets of the estate. But, if he
continues to flunk despite such pursuits, the legacy is
gone.

Art. 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)
Art. 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)
Can the legatee shift courses?
It depends.
If the testator specifies which course he
should take, he cannot shift courses.
If it is not specified by the testator, he can
shift courses.

Art. 944. A legacy for education lasts until NOTE: Shifting is not prohibited, unless the testator
the legatee is of age, or beyond the age of majority prohibits it.
in order that the legatee may finish some
professional, vocational or general course, provided
he pursues his course diligently.

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Amount of Legacy of Support - the
following rules govern the amount:
If it is stated, it must not exceed the free
portion.
If it is not stated, it will be fixed in
accordance to: (i) the social standing of testator; (ii)
circumstances surrounding the legatee; (iii) value of
estate.
NOTE: If the testator, during his lifetime, used to give
support to the legatee, the same amount is deemed
bequeathed, unless it is disproportionate to the free
portion.
Art. 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)
What is the difference between a Legacy of Support and a
Legacy of Pension?
LEGACY OF SUPPORT LEGACY OF PENSION
It cannot be used on The pension fund
anything other than can be used for any
support. purpose.
Art. 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)
Art. 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)
Art. 948. If the legacy or device 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
MEESEEKS NOTES ON SUCCESSION
or improvement, without prejudice to the
responsibility of the executor or administrator.
(882a)
Art. 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.
(884a)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
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Art. 955. The legatee or devisee of two LEGAL OR INTESTATE SUCCESSION

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 960. Legal or intestate succession
takes place:
(1) If a person dies without a will, or with a
void will, or one which has subsequently lost its
validity;
(2) When the will does not institute an heir
to, or dispose of all the property belonging to the
testator. In such case, legal succession shall take
place only with respect to the property of which the
testator has not disposed;

Art. 956. If the legatee or devisee cannot or (3) If the suspensive condition attached to
is unwilling to accept the legacy or devise, or if the the institution of heir does not happen or is not
legacy or devise for any reason should become fulfilled, or if the heir dies before the testator, or
ineffective, it shall be merged into the mass of the repudiates the inheritance, there being no
estate, except in cases of substitution and of the substitution, and no right of accretion takes place;
right of accretion. (888a) (4) When the heir instituted is incapable of
succeeding, except in cases provided in this Code.
Art. 957. The legacy or devise shall be (912a)
without effect:
Legal or intestate succession; nature.– It is
(1) If the testator transforms the thing bequeathed called such because it is established in the absence of
in such a manner that it does not retain either the a will, hence, intestate; and it is based on law, thus,
form or the denomination it had; legal. It is of a suppletory and exceptional nature.
The law presumes that since love descends
(2) If the testator by any title or for any cause
first then ascends and finally directed towards the
alienates the thing bequeathed or any part thereof, it
sides, the law calls first the descendants, then the
being understood that in the latter case the legacy or
ascendants, then lastly the collaterals. Always those
devise shall be without effect only with respect to
the part thus alienated. If after the alienation the nearer in degree to those more remote as it is
thing should again belong to the testator, even if it supposed that the same would have been done by the
be by reason of nullity of the contract, the legacy or decedent had he been able to manifest his last will.
devise shall not thereafter be valid, unless the It takes place when a person dies without a
reacquisition shall have been effected by virtue of will. This includes presumptive death.
the exercise of the right of repurchase;
Legal or intestate succession and
(3) If the thing bequeathed is totally lost during compulsory succession distinguished.–
the lifetime of the testator, or after his death without
INTESTATE COMPULSORY
the heir's fault. Nevertheless, the person obliged to
SUCCESSION SUCCESSION
pay the legacy or devise shall be liable for eviction
if the thing bequeathed should not have been Provides for presumed Obligatory
determinate as to its kind, in accordance with the will of the deceased
provisions of Article 928. (869a)
Suppletory to testate Takes place whether the
Art. 958. A mistake as to the name of the succession and takes deceased has left a will or
thing bequeathed or devised, is of no consequence, place only in default of not and superior and
if it is possible to identify the thing which the the latter independent of
testator intended to bequeath or devise. (n) testamentary succession
Not every legal heir is a They are legal heirs
Art. 959. A disposition made in general compulsory heir
terms in favor of the testator's relatives shall be
understood to be in favor of those nearest in degree.
(751) Legal or intestate succession takes place.– It
takes place in the following circumstances:

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1. If a person dies without a will; a. Jus familiae, ties with

2. If a person dies with a void will; ascendants, descendants or
3. If a person dies with a will that has collaterals;
subsequently lost its validity;
b. Jus sanguinis, based on natural
NOTE: It is submitted that the term relationship;
“validity” should be understood to mean
c. Jus conyugii, based on conjugal
“efficacy” because once a will is valid, it
partnership; and
never ceases to be valid although it may be
declared inefficacious. 37 d. Jus imperii, based on the ties of
a citizen to the State;
4. When the will does not institute an heir
or when the institution is void; 2. Preference among lines;
5. The will disposes of property only in
part; Direct line is preferred to the
6. Nonfulfillment of the suspensive collateral line and the direct line, the
condition; descending line is preferred to the
ascending. Relationship by affinity does
Exception to the rule: Where there is not give rise to a right to be an intestate
substitution; and where the right of heir.
accretion takes place.
3. Rule of proximity of degree;
7. The heir repudiates or predeceases;
As a rule, the relative nearest in
8. Incapacity of the heir to succeed when degree excludes the more remote.
there is no substitution and no accretion;
The exception is in case the rule of
9. Other causes, such as: representation. The representation
a. Expiration of the term wipes out the exclusion by conferring a
b. Happening of a resolutory degree of relationship superior to that
condition; which would ordinarily correspond
c. Noncompliance or them in succession.
impossibility of complying
with the will of the testator; 4. Rule of equal division;
and Intestate heirs equal in degree
d. Preterition. receive equal shares, as a general rule.
Article 961. In default of testamentary heirs, The exceptions are:
the law vests the inheritance, in accordance with the a. In the descending line where
rules hereinafter set forth, in the legitimate and the heirs are not of the same
illegitimate relatives of the deceased, in the class or kind;
surviving spouse, and in the State. (913a)
b. In the ascending line the rule of
Article 962. In every inheritance, the division by line applies;
relative nearest in degree excludes the more distant
ones, saving the right of representation when it c. In the collateral line, those of
properly takes place. full blood get double of the half
blood; and
Relatives in the same degree shall inherit in
equal shares, subject to the provisions of article 1006 d. The division is per stirpes, or in
with respect to relatives of the full and half blood, such a manner that the
and of article 987, paragraph 2, concerning division representatives, although in the
between the paternal and maternal lines. (912a) same degree, shall not inherit
more than what the person
Basic rules of intestate succession.– The
they represent would inherit.
following are the rules:
1. An intestate heir must be in some way
related to the deceased, which may be:

37 3 Caguioa 347

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RELATIONSHIP Basis of the right to succeed.– The basis of

the right to succeed differs. One must first distinguish
Article 963. Proximity of relationship is between testate succession and intestate succession.
determined by the number of generations. Each
generation forms a degree. (915) In testate succession, the basis of the right is
the institution of a person as an heir.
Article 964. A series of degrees forms a line,
which may be either direct or collateral. In intestate succession, the basis is
relationship subject to the rules of proximity. Blood
A direct line is that constituted by the relationship and the law allows only up to the 5th civil
series of degrees among ascendants and
degree.
descendants.
A collateral line is that constituted by the Hence, in intestate succession the degree of
series of degrees among persons who are not relationship must be determined in order to find out
ascendants and descendants, but who come from a who is to receive the inheritance.
common ancestor. (916a)
Computation of Degrees.– The rules may be
Article 965. The direct line is either illustrated by the following example for the book of
descending or ascending. Justice Jurado:
The former unites the head of the family
with those who descend from him. The latter binds
a person with those from whom he descends.(917)
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)
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 In computing the degree of relationship, start
the same mother, or the same mother, but not the counting from the progenitor up to the heir whose
same father. (920a) degree of relationship to the progenitor is desired to be
known then subtract one (1).
Relationship.– It is the tie that binds several
persons owing to their coming from a common line. In the direct descending line, suppose B is the
They come from the same common tree or progenitor, progenitor and F is the heir, descent is made from B to
and the relationship is by consanguinity, regardless of F, counting the number of persons from B to F, then
whether it is legitimate or illegitimate. subtract 1. Hence, B is one degree from his son, F.
Double tie or single tie relationship depend If in the direct ascending line, suppose E is the
as to whether they proceed form the same father and progenitor and A is the heir, ascent is made from A to E,
mother or from only the same mother or same father. counting the number of persons from A to E then
subtract 1. Hence, E is two degrees away from A.
See Illustration in Caguioa, p. 354.
If in the collateral line, suppose G is the
progenitor, how many degrees is he related to his sister,

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H? Ascent is made to the common ancestor, D, then
descent to H, counting the number of persons between
G and H, then subtract 1. Hence, G is two degrees away
from H.
NOTE: To count degrees in the collateral line, ascend to
the common ancestor first, then descend to the person
involved in each generation in case of siblings, cousins,
uncles or aunts.
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)
Relatives unwilling or incapacitated to
succeed.– In these cases, their share shall not be given
to those nearest in degree but shall be given by
accretion to other heirs of the same degree, excluding
those in the next degree unless in cases of
representation.
When there is a right of representation, it
shall take place instead of the right to accretion.
NOTE: There is no right of representation in
repudiation. It is only in case of predecease.
Accretion occurs in case of predecease,
repudiation, or incapacity.
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)
Repudiation of one or all in the same
degree.– It is clear that this applies only in
repudiation and not in case of incapacity.
The nearest in degree shall inherit in their
own right because there is no right of representation
in repudiation.
NOTE: In incapacity, there may or may not be
representation, hence, one must first make a
distinction as to whether or not there is a right of
representation in order to determine if the heirs
succeed in their own right to not.
If the right exists, the succeed by right of
representation.
If no such right exists, the nearest in degree
shall succeed in their own right.
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RIGHT OF REPRESENTATION
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)
Representation; Definition, Concept, and
Nature.– Representation is a subrogation or
substitution as a result of which the descendant is
placed in the position and degree of the ascendant
who would have inherited in the first place.
Legal heirs are fall under two (2) groups:
1. Those who inherit in their own right;
and
2. Those who inherit by the right of
representation.
Effects of representation.– It produces two
(2) effects:
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1. It places a relative, of a degree farther
than the one with the right to succeed,
in the degree necessary to inherit. It
makes him advance to a nearer degree
necessary in order that he may have the
right to the inheritance; and
2. The lone representative or all of the
representatives occupy the place of the
represented so that all of them inherit
only the portion which the person they
represent would have received had he
lived or been able to inherit.
The representative/s are called to succession
by law and not by the person represented and
succeed not the person represented but the one whom
the person represented would have succeeded. (Art.
971)
Is there right of representation in intestacy?
It depends. If it is in the direct descending
line or in the collateral line, such a right exists.
No such right exists in the ascending line.
NOTE: There is no right of representation in case of
repudiation. One who repudiates his inheritance can
never be represented. However, the one who has
repudiated his inheritance is not barred from being a
representative. In other words, one who repudiates
cannot be represented, but one who repudiates can
represent.
Iron Curtain Rule.– As a rule, representation
takes place only in favour of legitimate descendants.
However, the Civil Code has modified this rule.
The rule now is that representation by
illegitimates is allowed if the person who is to be
represented is himself an illegitimate.
The law has placed an iron curtain between
the legitimate and illegitimate members of the family.
Can an illegitimate child succeed the legitimate relatives of
his father?
It depends.
If the matter involves Intestate succession,
the prohibition applies pursuant to Art. 992.
If the matter in involves testate succession,
the prohibition does not apply, so the illegitimate
child can succeed.
An illegitimate child cannot succeed the
legitimate relatives of his father ab intestato.
MEESEEKS NOTES ON SUCCESSION
Representation in adoption.– There is no
right of representation in adoption because the
relationship created between the adopter and the
adopted is limited to them alone and does not extend
to the other relatives. The relatives of the adopter and
the adopted are not relatives, and the relatives of the
adopter are not the relatives of the adopter. The
relationship is purely personal between the adopted
and the adopter. (Teotico v. Del Val, L-18753, March 25,
1965)
DEAN ALIGADA’S VIEW: Authorities say the
pronouncement in the case of Teotico no longer holds
true because under the present Domestic Adoption
laws, it is now provided that the adopted child will
have the same rights and obligations as that of a
legitimate chid and without discrimination. Although
there is no jurisprudence as of the moment, the
consensus of authorities is that the adopted child can
now represent.
Can an adopted child be preterited?
Yes, the adopted child can now be subject of
preterition but not the surviving spouse because the
latter is not a compulsory heir in the direct line. (Acain
v. Diongson, 239 Phil. 96, 1987)
Representation in the collateral line.– There
can be representation in the collateral line if the
nephews and/or nieces are concurred with their
uncles and aunts. However, if the nephews and/or
nieces succeed with concurring with their uncles and
aunts, they are inheriting not as a representative, but
in their own right. Always remember to make this
distinction.
One of the grounds for losing one’s worthiness to succeed
under the Family Code is a final decree of legal separation,
where the guilty spouse is disqualified to succeed the
innocent spouse. Can it happen that the guilty spouse
succeeds the innocent spouse despite the judicial
declaration of legal separation?
Yes, remember our discussion above about
reconciliation. When there has been reconciliation
between the spouse, it has the effect of restoring the
guilty spouse’s worthiness to succeed, making him
eligible or entitled to succeed the innocent spouse.
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TABLE OF INTESTATE SHARES 38

Legitimate children alone The whole estate divided equally
Legitimate children and illegitimate The whole estate, each illegitimate child getting ½ share of one legitimate
children child
Legitimate children and surviving The whole estate, divided equally
spouse
Legitimate children, surviving spouse, The whole estate, each illegitimate child getting ½ share of one legitimate
and illegitimate children child
Legitimate parents alone The whole estate, divided equally
Legitimate ascendants other than The whole estate, observing in the proper case, division by line rule
parents alone
Legitimate parents and illegitimate Legitimate parents = ½ of the estate
children Illegitimate children = ½ of the estate
Legitimate parents and surviving Legitimate parents = ½ of the estate
spouse Surviving spouse = ½ of the estate
Legitimate parents, surviving spouse Legitimate parents = ½ of the estate
and illegitimate children Surviving spouse = ½ of the estate
Illegitimate children = ¼ of the estate
Illegitimate children alone The whole estate, divided equally
Illegitimate children and surviving Surviving spouse = ½ of the estate
spouse Illegitimate children = ½ of the estate
Surviving spouse alone The whole estate
Surviving spouse and illegitimate Surviving spouse = ½ of the estate
parents Illegitimate parents = ½ of the estate

NOTE: No article in the Civil Code provides for this. Art. 997 is applied
only by analogy.
Surviving spouse and legitimate Surviving spouse = ½ of the estate
brothers and sisters, nephews and Legitimate brothers and sisters, nephews and nieces = ½ of the estate
nieces

Surviving spouse and illegitimate Surviving spouse = ½ of the estate

brothers and sisters, nephews and Illegitimate brothers and sisters, nephews and nieces = ½ of the estate
nieces

Illegitimate parents alone The whole estate

Illegitimate parents and children of
any kind
Legitimate brothers and sisters alone
Legitimate brothers and sisters,
nephews, nieces
Illegitimate parents = Excluded
One child alone = the whole estate
Legitimate and illegitimate children = The whole estate, each illegitimate
child getting ½ share of one legitimate child
The whole estate, with a brother/sister of half-blood inheriting ½ the
share of a brother/sister in full blood
The whole estate, observing 2:1 proportion of full and half-blood
fraternity and the nephews and nieces inheriting by right of
representation in proper cases

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Nephews and nieces with uncles and
aunts
Illegitimate brothers and sisters alone
Illegitimate brothers and sisters,
nephews, nieces
Nephews and nieces alone
Other collateral relatives
State
Uncles and Aunts = Excluded
Nephews and nieces = the whole estate per capita, but observing 2:1
proportion for full and half-blood
The whole estate, observing 2:1 proportion of full and half-blood
fraternity
The whole estate, applying Arts. 1005 and 1008 by analogy
The whole estate, observing 2:1 proportion of full and half-blood
fraternity
The whole estate per capita, the nearer in degree excluding the more
remote
The whole estate
Assignment and disposition
1. If decedent was a resident of the Philippines at any time:
a. Personal property goes to the municipality of last residence;
and
b. Real property goes to the municipality where it is situated
2. If decedent was never a resident:
a. Personal and real property go to the municipality where it is
situated
How property is to be used
1. For the benefit of public educational and charitable institutions
in the respective municipalities and cities
2. At the instance of an interested party, or motu proprio, the court
may order the creation of a permanent trust for the benefit of the
institutions concerned

ACCRETION It takes place in the same cases her

substitution takes place, that is, when the other
Article 1015. Accretion is a right by virtue person called to the inheritance, devise or legacy
of which, when two or more persons are called to renounces, is incapacitated or predeceases the
the same inheritance, devise or legacy, the part testator.
assigned to the one who renounces or cannot receive
his share, or who died before the testator, is added Article 1016. In order that the right of
or incorporated to that of his co-heirs, co-devisees, or accretion may take place in a testamentary
co-legatees. (n) succession, it shall be necessary:

Accretion; definition, concept and
purpose.– When the testator gives a single thing or a
portion of the inheritance to two or more persons
without express designation of parts, he grants to
these persons preference to the right over the thing or
the portion granted and the law respecting the will of
the testator maintains such preference by assigning
part of the thing or portion left vacant by the death of
one of the co-participants to the others called by the
decedent. All the persons jointly represent a single
entity which does not disappear while one of them is
living.
(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.

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WILLS AND SUCCESSION
In case of money or fungible goods, if the
share of each heir is not earmarked, there shall be a
right of accretion. (983a)
Requisites of accretion.– The following are
the requisites:
1. Unity in the object;
2. Plurality in the subject; and
3. Absence of any special designation.
There is more than one individual to whim
the inheritance is given.
Causes of Accretion.– The following are the
causes:
1. Predecease;
2. Repudiation of the inheritance; or
3. Incapacity to inherit.
4. Other causes:
a. Non-fulfillment of the condition
imposed upon the instituted heir;
b. Inefficacy of the testamentary
disposition.
Article 1018. In legal succession the share of
the person who repudiates the inheritance shall
always accrue to his co-heirs. (981)
Whether accretion will result or not, the
result will be the same in the case of intestate
succession
Article 1019. The heirs to whom the portion
goes by the right of accretion take it in the same
proportion that they inherit. (n)
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)
May the right of accretion be repudiated?
It depends.
As a rule, it is a right and not an obligation,
so it can be repudiated.
However, in case of legacies, where the part
to be renounced is onerous while the part received is
by gratuitous title, it cannot be repudiated. 39 This is
because of the All-or-Nothing Rule.
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.
39 3 Caguioa 416
MEESEEKS NOTES ON SUCCESSION
Accretion in compulsory succession.–
Accretion will only take place with regard to the free
portion and only when the requisites in Art. 1016 are
present. This is because the law already provides for
the shares of the compulsory heirs.
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 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)
Article 1023. Accretion shall also take place
among devisees, legatees and usufructuaries under
the same conditions established for heirs. (987a)
COLLATION
Collation; definition, concept and
purpose.– Collation is the act by virtue of which the
heirs who concur in the inheritance return to the
common mass the properties which they have
received in order that division may be effected in
accordance with law and the will of the testator.
To collate is to restore, to aggregate or to
return to the mass of inheritance, actually or
fictitiously, properties which have left the estate of the
decedent during his lifetime but which the law
understands that it has left the same only as an
advance of the same inheritance.
It is the brining back or returning of
properties acquired by gratuitous title to the mass of
the estate.
NOTE: What is brought back to the mass of the estate
is not the specific property disposed of by gratuitous
title but only its value.
Is collation necessary?
It depends.
If it is for the purpose of determining how
much the legitime of the compulsory heirs will be,
then it is necessary.
If, however, there are no compulsory heirs,
collation is not necessary.
Are all properties disposed of required to be collated?
No, only those disposed of by gratuitous
title. It does not apply to properties disposed of by
onerous title.
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WILLS AND SUCCESSION

PARTITION

Under what condition can you have Extrajudicial partition

of an estate?

There can be extrajudicial partition when

there are no existing debts, because you can never
have extrajudicial partition when there are existing
debts. They must be satisfied first.

Who can ask for partition of estate?

1. Anyone of the heirs;

2. Testator in his will can make the partition;
3. Testator in his lifetime can partition the
estate; and
4. Anyone who can be designated by the
testator to effect partition.

When can there be no partition?

1. When the testator has provided in his will

that there shall be no partition provided that
the term does not exceed the period of 20
years;
2. If the heirs themselves so agree. But the
agreement cannot go beyond 10 years;
3. When one to be partitioned is the family
home unless the court finds valid reason to
allow partition;
4. There can be no partition when the law does
not allow it as in the case of a parity wall;
and
5. There can be no partition when the property
subject to partition is not susceptible of
division.

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MEESEEKS NOTES ON SUCCESSION 49