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SUCCESSION

INOCENCIO vs. HOSPICIO DE SAN JOSE (G.R. No. 201787, September 25, 2013)
The death of a party does not excuse nonperformance of a contract, which involves a
property right, and the rights and obligations thereunder pass to the successors or
representatives of the deceased. Similarly, nonperformance is not excused by the
death of the party when the other party has a property interest in the subject matter of
the contract.” Section 6 of the lease contract provides that “[t]his contract is
nontransferable unless prior consent of the lessor is obtained in writing.” Section 6
refers to transfers inter vivos and not transmissions mortis causa. What Section 6
seeks to avoid is for the lessee to substitute a third party in place of the lessee without
the lessor’s consent.

ALVAREZ vs. IAC (G.R. No. 68053, May 7, 1990)

The doctrine obtaining in this jurisdiction is on the general transmissibility of the rights
and obligations of the deceased to his legitimate children and heirs. The binding effect
of contracts upon the heirs of the deceased party is not altered by the provision of our
Rules of Court that money debts of a deceased must be liquidated and paid from his
estate before the residue is distributed among said heirs (Rule 89). The reason is that
whatever payment is thus made from the state is ultimately a payment by the heirs or
distributees, since the amount of the paid claim in fact diminishes or reduces the
shares that the heirs would have been entitled to receive. Under our law, therefore,
the general rule is that a party's contractual rights and obligations are transmissible to
the successors. The rule is a consequence of the progressive 'depersonalization' of
patrimonial rights and duties that, has characterized the history of these institutions.
From the Roman concept of a relation from person to person, the obligation has
evolved into a relation from patrimony to patrimony, with the persons occupying only
a representative position, barring those rare cases where the obligation is strictly
personal. Petitioners being the heirs of the late Rosendo Alvarez, they cannot escape
the legal consequences of their father's transaction, which gave rise to the present
claim for damages. That petitioners did not inherit the property involved herein is of
no moment because by legal fiction, the monetary equivalent thereof devolved into
the mass of their father's hereditary estate, and we have ruled that the hereditary
assets are always liable in their totality for the payment of the debts of the estate. It
must, however, be made clear that petitioners are liable only to the extent of the value
of their inheritance.

WHEN IS A PERSON CONSIDERED DEAD FOR THE PURPOSE OF

SUCCESSION?

Death may either be:

1) Actual death

2) Presumed death
a. Ordinary presumption - after 10 years or 5 years if the person disappeared
after the age of 75 years old (Article 390, NCC)

b. Qualified or extraordinary presumption – after 4 years if the disappearance

was under danger of death (Article 391, NCC)

 When is the moment of death counted?

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 (a) Ordinary presumption – after 5 or 10 years
(b) Extraordinary presumption – from the date of disappearance

 However, the rule on presumptions should yield to the rule on preponderance of

evidence. If there is evidence pointing to the fact that the person is alive, then he
cannot be presumed dead despite the fact that he has not been heard of. Or if
there is evidence that the person is really dead, then there is no need to wait for
the periods under Articles 390 and 391 to lapse before a person may be declared
dead.

EASTERN vs. LUCERO (124 SCRA 326)

HELD: It is undisputed that the Company received 3 radio messages from Capt.
Lucero. There is thus enough evidence to show the circumstances attending the
loss and disappearance of the M/V Eastern Minicon and its crew. The foregoing
facts are sufficient to lead to a moral certainty that the vessel had sunk and that
the persons aboard had perished with it. Upon this premise, the rule on
presumption of death under Article 391 (1) of the Civil Code must yield to the rule
of preponderance of evidence. Where there are facts, known or knowable, from
which a rational conclusion can be made, the presumption does not step in, and
the rule of preponderance of evidence controls. Thus, the complaint of Mrs. Lucero
was dismissed and instead, she should receive the death benefits.

DEL ROSARIO vs. FERRER (G.R. No. 187056, September 20, 2010)
On August 27, 1968 the spouses Leopoldo and Guadalupe Gonzales executed a
document entitled Donation Mortis Causa in favor of their two children, Asuncion and
Emiliano, and their granddaughter, Jarabini (daughter of their predeceased son, Zoilo)
covering the spouses 126-square meter lot and the house on it in Pandacan, Manila
in equal shares. The deed of donation reads:

A. It is our will that this Donation Mortis Causa shall be irrevocable and
shall be respected by the surviving spouse.

B. It is our will that Jarabini Gonzales-del Rosario and Emiliano Gonzales

will continue to occupy the portions now occupied by them.

C. It is further our will that this DONATION MORTIS CAUSA shall not in
any way affect any other distribution of other properties belonging to any
of us donors whether testate or intestate and where ever situated.

D. It is our further will that any one surviving spouse reserves the right,
ownership, possession and administration of this property herein
donated and accepted and this Disposition and Donation shall be
operative and effective upon the death of the DONORS.

The deed had no attestation clause and was witnessed by only two persons. The
named donees, however, signified their acceptance of the donation on the face of the
document.
Held: That the document in question in this case was captioned Donation Mortis
Causa is not controlling. This Court has held that, if a donation by its terms is inter
vivos, this character is not altered by the fact that the donor styles it mortis causa. In
Austria-Magat v. Court of Appeals, the Court held that irrevocability is a quality
absolutely incompatible with the idea of conveyances mortis causa, where revocability
is precisely the essence of the act. A donation mortis causa has the following
characteristics:

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1. It conveys no title or ownership to the transferee before the
death of the transferor; or, what amounts to the same thing, that
the transferor should retain the ownership (full or naked) and
control of the property while alive;

2. That before his death, the transfer should be revocable by

the transferor at will, ad nutum; but revocability may be provided
for indirectly by means of a reserved power in the donor to dispose
of the properties conveyed; and

3. That the transfer should be void if the transferor should

survive the transferee.1[12] (Underscoring supplied)

The Court thus said in Austria-Magat that the express irrevocability of the
donation is the distinctive standard that identifies the document as a donation
inter vivos. Here, the donors plainly said that it is our will that this Donation
Mortis Causa shall be irrevocable and shall be respected by the surviving
spouse. The intent to make the donation irrevocable becomes even clearer by
the proviso that a surviving donor shall respect the irrevocability of the donation.
Consequently, the donation was in reality a donation inter vivos.

The donors in this case of course reserved the right, ownership, possession,
and administration of the property and made the donation operative upon their
death. But this Court has consistently held that such reservation (reddendum)
in the context of an irrevocable donation simply means that the donors parted
with their naked title, maintaining only beneficial ownership of the donated
property while they lived.

Notably, the three donees signed their acceptance of the donation, which
acceptance the deed required. This Court has held that an acceptance clause
indicates that the donation is inter vivos, since acceptance is a requirement
only for such kind of donations. Donations mortis causa, being in the form of a
will, need not be accepted by the donee during the donors lifetime.

Finally, as Justice J. B. L. Reyes said in Puig v. Peaflorida,2[16] in case of

doubt, the conveyance should be deemed a donation inter vivos rather than
mortis causa, in order to avoid uncertainty as to the ownership of the property
subject of the deed.

Since the donation in this case was one made inter vivos, it was immediately
operative and final. The reason is that such kind of donation is deemed
perfected from the moment the donor learned of the donees acceptance of the

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 donation. The acceptance makes the donee the absolute owner of the property
donated.

Given that the donation in this case was irrevocable or one given inter vivos,
Leopoldos subsequent assignment of his rights and interests in the property to
Asuncion should be regarded as void for, by then, he had no more rights to
assign. He could not give what he no longer had. Nemo dat quod non habet.

VILLANUEVA vs. SPOUSES BRANOCO (G.R. No. 172804, January 24, 2011)
Petitioner Gonzalo Villanueva (petitioner), here represented by his heirs, sued
respondents, spouses Froilan and Leonila Branoco (respondents) to recover a 3,492
square-meter parcel of land in Amambajag, Culaba, Leyte (Property). Petitioner
claimed ownership over the Property through purchase in July 1971 from Casimiro
Vere (Vere), who, in turn, bought the Property from Alvegia Rodrigo (Rodrigo) in
August 1970. Petitioner declared the Property in his name for tax purposes soon after
acquiring it. In their Answer, respondents similarly claimed ownership over the
Property through purchase in July 1983 from Eufracia Rodriguez (Rodriguez) to whom
Rodrigo donated the Property in May 1965. The two-page deed of donation (Deed),
signed at the bottom by the parties and two witnesses, reads in full:

KNOW ALL MEN BY THESE PRESENTS:

That I, ALVEGIA RODRIGO, Filipino, of legal age, widow of the

late Juan Arcillas, a resident of Barrio Bool, municipality of Culaba,
subprovince of Biliran, Leyte del Norte, Philippines, hereby depose and
say:
That as we live[d] together as husband and wife with Juan
Arcillas, we begot children, namely: LUCIO, VICENTA, SEGUNDINA,
and ADELAIDA, all surnamed ARCILLAS, and by reason of poverty
which I suffered while our children were still young; and because my
husband Juan Arcillas aware as he was with our destitution separated
us [sic] and left for Cebu; and from then on never cared what happened
to his family; and because of that one EUFRACIA RODRIGUEZ, one of
my nieces who also suffered with our poverty, obedient as she was to
all the works in our house, and because of the love and affection which
I feel [for] her, I have one parcel of land located at Sitio Amambajag,
Culaba, Leyte bearing Tax Decl. No. 1878 declared in the name of
Alvegia Rodrigo, I give (devise) said land in favor of EUFRACIA
RODRIGUEZ, her heirs, successors, and assigns together with all the
improvements existing thereon, which parcel of land is more or less
described and bounded as follows:
1. Bounded North by Amambajag River; East, Benito Picao;
South, Teofilo Uyvico; and West, by Public land; 2. It has
an area of 3,492 square meters more or less; 3. It is
planted to coconuts now bearing fruits; 4. Having an
assessed value of P240.00; 5. It is now in the possession
of EUFRACIA RODRIGUEZ since May 21, 1962 in the
concept of an owner, but the Deed of Donation or that
ownership be vested on her upon my demise.
That I FURTHER DECLARE, and I reiterate that the land above
described, I already devise in favor of EUFRACIA RODRIGUEZ since

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 May 21, 1962, her heirs, assigns, and that if the herein Donee
predeceases me, the same land will not be reverted to the Donor, but
will be inherited by the heirs of EUFRACIA RODRIGUEZ;

That I EUFRACIA RODRIGUEZ, hereby accept the land above

described from Inay Alvegia Rodrigo and I am much grateful to her and
praying further for a longer life; however, I will give one half (1/2) of the
produce of the land to Apoy Alve during her lifetime.
Respondents entered the Property in 1983 and paid taxes afterwards.

RULING:
We examine the juridical nature of the Deed – whether it passed title to Rodriguez
upon its execution or is effective only upon Rodrigo’s death – using principles distilled
from relevant jurisprudence. Post-mortem dispositions typically –
(1) Convey no title or ownership to the transferee before the
death of the transferor; or, what amounts to the same thing, that the
transferor should retain the ownership (full or naked) and control of the
property while alive;
(2) That before the [donor’s] death, the transfer should be
revocable by the transferor at will, ad nutum; but revocability may be
provided for indirectly by means of a reserved power in the donor to
dispose of the properties conveyed;
(3) That the transfer should be void if the transferor should
survive the transferee.

Further –
[4] [T]he specification in a deed of the causes whereby the
act may be revoked by the donor indicates that the donation is inter
vivos, rather than a disposition mortis causa[;]
[5] That the designation of the donation as mortis causa, or
a provision in the deed to the effect that the donation is “to take
effect at the death of the donor” are not controlling criteria; such
statements are to be construed together with the rest of the
instrument, in order to give effect to the real intent of the
transferor[;] [and]
(6) That in case of doubt, the conveyance should be deemed
donation inter vivos rather than mortis causa, in order to avoid
uncertainty as to the ownership of the property subject of the deed.

It is immediately apparent that Rodrigo passed naked title to Rodriguez under

a perfected donation inter vivos. First. Rodrigo stipulated that “if the herein Donee
predeceases me, the [Property] will not be reverted to the Donor, but will be inherited
by the heirs of x x x Rodriguez,” signaling the irrevocability of the passage of title to
Rodriguez’s estate, waiving Rodrigo’s right to reclaim title. This transfer of title was
perfected the moment Rodrigo learned of Rodriguez’s acceptance of the disposition.
Rodrigo’s acceptance of the transfer underscores its essence as a gift in presenti, not
in futuro, as only donations inter vivos need acceptance by the recipient. Indeed, had
Rodrigo wished to retain full title over the Property, she could have easily stipulated,
as the testator did in another case, that “the donor, may transfer, sell, or encumber to
any person or entity the properties here donated x x x” or used words to that effect.

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Instead, Rodrigo expressly waived title over the Property in case Rodriguez
predeceases her.

In a bid to diffuse the non-reversion stipulation’s damning effect on his case, petitioner
tries to profit from it, contending it is a fideicommissary substitution clause. Petitioner
assumes the fact he is laboring to prove. The question of the Deed’s juridical nature,
whether it is a will or a donation, is the crux of the present controversy. By treating the
clause in question as mandating fideicommissary substitution, a mode of testamentary
disposition by which the first heir instituted is entrusted with the obligation to preserve
and to transmit to a second heir the whole or part of the inheritance, petitioner
assumes that the Deed is a will. Neither the Deed’s text nor the import of the contested
clause supports petitioner’s theory.
Second. What Rodrigo reserved for herself was only the beneficial title to the Property,
evident from Rodriguez’s undertaking to “give one [half] x x x of the produce of the
land to Apoy Alve during her lifetime.” Thus, the Deed’s stipulation that “the ownership
shall be vested on [Rodriguez] upon my demise,” taking into account the non-
reversion clause, could only refer to Rodrigo’s beneficial title.
forementioned parcels”] the donor meant nothing else than
that she reserved of herself the possession and usufruct of said
two parcels of land until her death, at which time the donee would
be able to dispose of them freely. (Emphasis supplied)

Indeed, if Rodrigo still retained full ownership over the Property, it was unnecessary
for her to reserve partial usufructuary right over it.
Third. The existence of consideration other than the donor’s death, such as the
donor’s love and affection to the donee and the services the latter rendered, while also
true of devises, nevertheless “corroborates the express irrevocability of x x x [inter
vivos] transfers.” Thus, the CA committed no error in giving weight to Rodrigo’s
statement of “love and affection” for Rodriguez, her niece, as consideration for the gift,
to underscore its finding.
In no less than seven cases featuring deeds of donations styled as “mortis causa”
dispositions, the Court, after going over the deeds, eventually considered the transfers
inter vivos, consistent with the principle that “the designation of the donation as mortis
causa, or a provision in the deed to the effect that the donation is ‘to take effect at the
death of the donor’ are not controlling criteria [but] x x x are to be construed together
with the rest of the instrument, in order to give effect to the real intent of the transferor.”
Indeed, doubts on the nature of dispositions are resolved to favor inter vivos transfers
“to avoid uncertainty as to the ownership of the property subject of the deed.”
Nor can petitioner capitalize on Rodrigo’s post-donation transfer of the Property to
Vere as proof of her retention of ownership. If such were the barometer in interpreting
deeds of donation, not only will great legal uncertainty be visited on gratuitous
dispositions, this will give license to rogue property owners to set at naught perfected
transfers of titles, which, while founded on liberality, is a valid mode of passing
ownership. The interest of settled property dispositions counsels against licensing
such practice.

WHAT IS THE IMPORTANCE OF THE DISTINCTIONS BETWEEN HEIRS ON ONE

HAND AND LEGATEES AND DEVISEES ON THE OTHER HAND?

1. In preterition under Article 854, instituted voluntary heir gets nothing;

legatees and devisees still get the property given as long as the legitime
is not impaired.

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 2. Under Article 793 on after-acquired properties, legatees and devisees
as a general rule get only the property devised or bequeathed existing
at the time of the execution of the will. Heirs are not covered by Article
793 because their inheritance is residual.

HOW ARE AMBIGUITIES IN THE WILL TREATED?

 Two (2) kinds of ambiguities

1. Latent or Intrinsic ambiguity- an ambiguity or defect that does not appear in
the face of the will. You only discover them when you go beyond the will, when
you look for the persons or properties. This consists of:
B. Imperfect description of the heir, legatee or devisee.
C. Imperfect description of the property given.
D. When 2 or more persons meet the description.
E. When 2 or more things meet the description.

2. Patent or Extrinsic ambiguity – an ambiguity that is apparent on the face of

the will itself. You discover this by merely looking at the will. Example: I hereby
bequeath all my money to some of my students. Hence, from the will itself, it is
not clear how many students are intended.

 How to cure the ambiguities.

The same for both:
(a) By intrinsic evidence. That is, by looking at the context of the will, examining
how the words are used.
(b) By extrinsic evidence, that is going outside the will.

CAN ORAL OR PAROL EVIDENCE BE RESORTED TO IN ORDER TO CURE AN

AMBIGUITY?

Yes, except oral evidence or parol evidence pertaining to the supposed oral
declarations of the testator. This would not be allowed because this may open the
door to fraud. Anybody may claim that he/she heard the testator said something.
But other oral evidence may be allowed as an exception to the Parol Evidence
Rule under Rule 130, Section 9 of the Rules of Court.

WHAT LAWS GOVERN THE VALIDITY OF WILLS?

 Two kinds of validity:

A. Formal or extrinsic validity – refers to the forms and solemnities that must be
complied with in order to make the will valid. Forms such as the type of
instrument (depending whether notarial or holographic will), capacity of the
testator, qualifications of witnesses. Extrinsic Validity may be seen from 2
viewpoints. Time and Place (country)

B. Intrinsic validity – refers to the legality of the provisions in an instrument,

contract or will. EG. Whether or not there was preterition, whether or not there
is invalid disinheritance, whether or not there is impairment of legitime. May be
seen also from 2 viewpoints: Time and Place (country)

 Extrinsic Validity from the Viewpoint of Time

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 - extrinsic validity of will depends upon the observance of the law in force at the
time the will is made. The extrinsic validity of will is measured against the law
in force at the time of will making, not at time of death, not at time of probate.
- Reason: The testator cannot possibly know, and is not expected to know the
laws that will govern in the future. Hence, it is sufficient that he follows the laws
in force at the time that he makes his will.

ENRIQUEZ vs. ABADIA (95 Phil 627)

HELD: The formal validity of a will depends upon the observance of the law in
force at the time it is made, not by the law in force at the time of the testator’s
death, or at the time the supposed will is presented in court for probate, or when
the petition is decided by the court. Consequently, the validity of a will is not
affected by the subsequent amendment of the law with respect to formalities
after the execution of the will, whether before or after the death of the testator.
Where a will was void for failure to observe certain formalities under the law
then in force, a subsequent law lessening or dispensing with said formalities
cannot be applied so as to validate the void will. Thus, the fact that the New
Civil Code allows a holographic will does not validate one made before its
effectivity and void under the prevailing law.

TESTATE ESTATE OF THE LATE ALIPIO ABADA vs. ABAJA (G.R. NO.
147145, JANUARY 31, 2005)

HELD: YES. The laws in force at that time are the Civil Code of 1889 or the
Old Civil Code, and Act No. 190 or the Code of Civil Procedure which governed
the execution of wills before the enactment of the New Civil Code. The Code
of Civil Procedure repealed Article 685 of the Old Civil Code. Under the Code
of Civil Procedure, the intervention of a notary is not necessary in the execution
of any will. Therefore, Abada’s will does not require acknowledgment before a
notary public.

 Extrinsic Validity from the Viewpoint of Place (Country)

C. Testator is a Filipino who executes will in the Philippines: Observe Philippine

Laws (NCC) – Art. 17

D. Testator is a Filipino who executes will abroad before the diplomatic or consular
officials of the Republic of the Philippines in a foreign country: Observe
Philippine Laws (NCC) – Art. 17

E. Testator is a Filipino who executes will abroad: Observe

1. law of the place where he may be – art. 815
2. law of the place where he executes the will – art. 17 (essentially same with
815 because law of place where he executes the will is the law of the place
where he may be)
3. law of the Philippines (because art. 815 merely says “is authorized”
meaning, he principally has to follow Philippine law but is [permitted or
authorized to follow the law of the place where he may be)

D. Testator is an alien who executes will abroad: Observe

1. law of the place of his residence or domicile – art. 816
2. law of his own country or nationality – art. 816
3. Philippine Law (NCC) – art. 816
4. law of the place where will is executed – art. 17
Example: T an American citizen who has his residence in Japan and who
executes a will in Germany

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 E. Testator is an alien who executes a will in the Philippines: Observe
1. law of his country or nationality – Art. 817
2. law of the place where will is executed (Philippines) – Art. 17
Example: X a Japanese who executes will in the Philippines may observe
Japanese law or Phil. law.

 Intrinsic Validity from the Viewpoint of Time

Capacity to succeed is governed by the law of the nation of the decedent. (Art.
1039)

 So in addition to Article 16, the following are governed by the national law of
decedent
1. order of succession
2. amount of successional rights
3. intrinsic validity of testamentary provision
4. capacity to succeed

 Intrinsic Validity from the Viewpoint of Place or Country

- Law applicable is the national law of the decedent under Article 16 of the New
Civil Code.

WHAT ARE THE INSTANCES WHEN PHILIPPINE LAWS MAY STILL APPLY
INSOFAR AS THE INTRINSIC VALIDITY OF THE WILL OF A FOREIGN NATIONAL
IS CONCERNED?

1. Application of the Doctrine of Renvoi

2. Application of the Doctrine of Processual Presumption

WHO CAN EXECUTE WILLS? 18 years old and sound mind at the time of execution
of will

WHAT ARE THE REQUISITES OF A SOUND MIND?

A. Testator must know the nature of the estate to be disposed of – must have a
sufficient recollection of his properties and comprehend their kind, character, and
quality in general.
B. Testator must know the proper objects of his bounty – must be aware of those
persons who would naturally be supposed to have claim upon him;
C. Testator must know the character of the testamentary act – must understand that
he is executing an instrument which will dispose of his property upon his death and
which he may revoke anytime.

BALTAZAR vs. LAXA (G.R. No. 174489, April 11, 2012)

A careful examination of the face of the Will shows faithful compliance with the formalities laid
down by law. The signatures of the testatrix, Paciencia, her instrumental witnesses and the
notary public, are all present and evident on the Will. Further, the attestation clause explicitly
states the critical requirement that the testatrix and her instrumental witnesses signed the Will
in the presence of one another and that the witnesses attested and subscribed to the Will in
the presence of the testator and of one another. In fact, even the petitioners acceded that
the signature of Paciencia in the Will may be authentic although they question her state of
mind when she signed the same as well as the voluntary nature of said act. Petitioners,

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through their witness Rosie, claim that Paciencia was “magulyan” or forgetful so much so
that it effectively stripped her of testamentary capacity. They likewise claimed in their Motion
for Reconsideration filed with the CA that Paciencia was not only “magulyan” but was actually
suffering from paranoia. We agree with the position of the CA that the state of being forgetful
does not necessarily make a person mentally unsound so as to render him unfit to execute
a Will. Forgetfulness is not equivalent to being of unsound mind. In this case, apart from
the testimony of Rosie pertaining to Paciencia’s forgetfulness, there is no substantial
evidence, medical or otherwise, that would show that Paciencia was of unsound mind at the
time of the execution of the Will. On the other hand, we find more worthy of credence Dra.
Limpin’s testimony as to the soundness of mind of Paciencia when the latter went to Judge
Limpin’s house and voluntarily executed the Will. “The testimony of subscribing witnesses
to a Will concerning the testator’s mental condition is entitled to great weight where they are
truthful and intelligent.” More importantly, a testator is presumed to be of sound mind at the
time of the execution of the Will and the burden to prove otherwise lies on the oppositor.
Furthermore, we are convinced that Paciencia was aware of the nature of her estate to be
disposed of, the proper objects of her bounty and the character of the testamentary act. As
aptly pointed out by the CA:
A scrutiny of the Will discloses that [Paciencia] was aware of the nature
of the document she executed. She specially requested that the customs of
her faith be observed upon her death. She was well aware of how she
acquired the properties from her parents and the properties she is
bequeathing to LORENZO, to his wife CORAZON and to his two (2) children.
A third child was born after the execution of the will and was not included
therein as devisee.

WHAT ARE THE PRESUMPTIONS AS TO SOUNDNESS OF MIND?

A. General Presumption: testator is of sound mind. Burden of proving otherwise rests

upon those who oppose the probate of will. To discharge burden: clear and
convincing evidence is required

B. When testator is presumed of unsound mind:

1. Publicly known to be insane one month or less before making of will

2. Judicially declared insane before making a will: In Torres vs. Lopez (48 Phil 772),
the Supreme Court ruled that the fact that the testator was judicially placed under
guardianship does not ipso facto mean that the testator was of unsound mind;
3. Insanity of a general or permanent nature shown to have existed at one time is
presumed to have continued;

 Burden of proving otherwise rests upon the proponent of the will

WHAT WILLS ARE RECOGNIZED IN THE PHILIPPINES?

A. Ordinary or notarial will – requires among other things, an attestation clause, an

acknowledgment before a notary public;

B. Holograph or holographic will – written entirely, dated, and signed, in the

handwriting of the testator. No attestation clause or acknowledgement required.

WHAT ARE THE FORMALITIES OF NOTARIAL WILLS?

1. Must be in writing;

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2. Must be in a language or dialect known to the testator;
3. 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;
4. Attested and subscribed by three or more credible witnesses in the presence of
the testator and of one another;
5. Must be signed on the left margin by the testator or the person requested by him
to write his name, and by the instrumental witnesses on each and every page
thereof, except the last;
6. All the pages shall be numbered correlatively in letters placed on the upper part of
each page;
7. There must be an attestation clause;
8. The will must be acknowledged before a notary public.

LANGUAGE
- Testator need not be proficient in the language used. It is sufficient that he can
make known his testamentary act through the language used.
- Presumption: knew the language in which the will is written unless the contrary is
proven.
- Hence:
1. No statutory requirement that the will should allege that the language used
therein is understood by the testator (Lopez vs. Liboro, 81 Phil 429)
2. No need to state in the attestation clause that the will is written in the language
known to the testator
3. That the will is in the language known to the testator can be proved by
EXTRINSIC EVIDENCE or even by oral evidence
4. If executed in the language of the locality where testator lives, there is a
presumption that testator knows it.

LEANO vs. LEANO (30 Phil 612)

The evidence of record satisfactorily discloses that Cristina Valdes, deceased, placed
her cross against her name attached by some other person to the instrument offered
for probate which purports to be her last will and testament, in the presence of the
three witnesses whose names are attached to the attesting clause, and that they
attested and subscribed the instrument in her presence and in the presence of each
other.

- But cross was not sufficient in:

GARCIA vs. LACUESTA (90 Phil 489)

Because the cross was not the customary signature of the testator, there should have
been a statement in the attestation clause that the will was signed by some other
person in behalf of the testator. The absence of this statement invalidated the will.

HOW ABOUT ELECTRONIC/DIGITAL SIGNATURE UNDER THE ELECTRONIC

COMMERCE ACT?
- Not allowed because an e-signature is supposed to be attached to or logically
associated with the e-data message or e-document or any methodology or
procedures employed or adopted by a person and executed or adopted by such a
person with the intention of authenticating or approving an e-message
(information) or e-document. E-signatures are affixed pursuant to transactions and
contracts. E-signature is not a handwritten signature that is scanned or graphically
imprinted on the e-document

WHO ARE THE CREDIBLE WITNESSES IN THE WILL?

GONZALES vs. CA (90 SCRA 183)

11
"Credible witnesses" mean competent witnesses and not those who testify to facts
from or upon hearsay. In the strict sense, the competency of a person to be an
instrumental witness to a will is determined by the statute, that is Art. 820 and 821,
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.
It is not necessary to introduce prior and independent proof of the fact that the
witnesses are "credible witnesses", that is, that they have a good standing in the
community and reputed to be trustworthy and reliable.

 Qualifications of witnesses:
1. of sound mind;
2. age of eighteen years or more;
3. not blind, deaf or dumb;
4. able to read and write
5. domiciled in the Philippines;
6. has not been convicted (by final judgment) of falsification of document, perjury or
false testimony.
 Notary public also disqualified to be a witness because he cannot acknowledge
the will before himself (Cruz vs. Villasor [54 SCRA 31])
 If there are only three attesting witnesses: if the attesting witness is a recipient of
a legacy or device in the will he is attesting, or the spouse, parent, or child of such
attesting witness is the recipient, the legacy to the attesting witness, his spouse,
parent, child, or anyone claiming under the attesting witness, his spouse, parent,
or child, is void. But the qualification of the person to attest the will is not affected
and the rest of the will remain valid.
 If there are more than three witnesses. The legacy or devise is valid. Reason: the
invalidity of legacy or device stems from his being an attesting witness. If more
than 3 witnesses, it is as if he is no longer counted as an attesting witness because
his presence as a witness is already a surplusage.
 Compulsory heir who is also an attesting witness: Can still get the legitime.
Disqualified only with respect to the free portion given in excess of their legitime.

WHAT IS THE MEANING OF “IN THE PRESENCE”?

 In the presence with respect to the witnesses does not necessarily require actually
seeing, but possibility of seeing or sensing without any physical obstruction.
 Generally Accepted Tests of Presence (Jaboneta vs. Gustillo, 55 Phil 541) :
1. Test of Vision
1. Test of Position
2. Test of Mental Apprehension
3. Test of Available Senses

MARAVILLA vs. MARAVILLA (37 SCRA 672)

It was but natural that witness Mansueto should be positive about his own signature,
since he was familiar with it. He had to be less positive about Digna Maravilla's
(testator) signature since he could not be closely acquainted with the same: for aught
the record shows, the signing of the will was the only occasion he saw her sign; he
had no opportunity to study her signature before or after the execution of the will.
Furthermore, he witnessed Digna's signing not less than fourteen years previously.
To demand that in identifying Digna's signature Mansueto should display a
positiveness equal to the certainty shown by him in recognizing his own, exceeds the
bounds of the reasonable. That Mansueto, Hernaez and Buenaflor, together with the
testatrix and the lawyer, sat next to one another around one table when the will was
signed is clearly established by the uncontradicted testimony of both attorney
Villanueva and Herminio Maravilla; and that detail proves beyond doubt that each one
of the parties concerned did sign in the presence of all the others. It should be

12
remembered, in this connection, that the test is not whether a witness did see the
signing of the will but whether he was in a position to see if he chose to do so. If
testator is blind, enough that signing or action is within the range of the other senses
like hearing, touch, etc., as long as testator realizes what is being done (TEST OF
AVAILABLE SENSES)

- Does not matter that witnesses signed ahead of or after the testator as long as
signing is sufficiently contemporaneous and made on one occasion (same time
and place) and as part of one single transaction (Gabriel vs. Mateo, 51 Phil 216).
- Purpose of requiring presence: to avoid fraudulent substitution of the will; and to
make it more difficult the invention of false testimony by the witnesses since they
may be the witnesses of one another.

MARGINAL SIGNATURES

ICASIANO vs. ICASIANO (11 SCRA 720)

The original of the will consisted of 5 pages but while signed at the end of each
and every page, it did not contain the signature of one of the attesting witnesses
on page 3 thereof, due to the simultaneous lifting of two pages in the course of the
signing although the duplicate copy was signed by the testatrix and the attesting
witnesses in each and every page.
HELD: The law should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose conduct
she had no control, where the purpose of the law is to guarantee the identity of the
testament and its component pages is sufficiently attained, no intentional or
deliberate deviation existed, and the evidence on record attests to the full
observance of the statutory requisites.

WHAT MATTERS SHOULD BE STATED IN THE ATTESTATION CLAUSE?

1. THE NUMBER OF PAGES USED UPON WHICH THE WILL IS WRITTEN;

2. IF THE TESTATOR CAUSED SOME OTHER PERSON TO WRITE HIS NAME,

THAT IT WAS UNDER HIS EXPRESS DIRECTION;

3. THE SIGNING BY THE TESTATOR OR BY THE PERSON REQUESTED BY HIM,

WAS IN THE PRESENCE OF THE INSTRUMENTAL WITNESSES;

4. THAT THE INSTRUMENTAL WITNESSES WITNESSED AND SIGNED THE WILL

AND ALL THE PAGES THEREOF IN THE PRESENCE OF THE TESTATOR AND
OF ONE ANOTHER.

AZUELA vs. CA (G.R. NO. 122880, April 12, 2006)

The Petitioner argues that the requirement under Article 805 of the Civil Code that
“the number of pages used in a notarial will be stated in the attestation clause” is
merely directory, rather than mandatory, and thus susceptible to what he termed
as “the substantial compliance rule.” As admitted by petitioner himself, the
attestation clause fails to state the number of pages of the will. There was an
incomplete attempt to comply with this requisite, a space having been allotted for
the insertion of the number of pages in the attestation clause. Yet the blank was
never filled in; hence, the requisite was left uncomplied with.
HELD: The failure of the attestation clause to state the number of pages on which
the will was written remains a fatal flaw, despite Article 809 (substantial
compliance). The purpose of the law in requiring the clause to state the number of
pages on which the will is written is to safeguard against possible interpolation or
omission of one or some of its pages and to prevent any increase or decrease in

13
 the pages. The failure to state the number of pages equates with the absence of
an averment on the part of the instrumental witnesses as to how many pages
consisted the will, the execution of which they had ostensibly just witnessed and
subscribed to. Following Caneda, there is substantial compliance with this
requirement if the will states elsewhere in it how many pages it is comprised of, as
was the situation in Singson and Taboada. However, in this case, there could have
been no substantial compliance with the requirements under Article 805 since
there is no statement in the attestation clause or anywhere in the will itself as to
the number of pages which comprise the will.

MATTER OF THE PETITION FOR THE PROBATE OF THE LAST WILL AND
TESTAMENT OF ENRIQUE S. LOPEZ RICHARD B. LOPEZ (G.R. No. 189984,
November 12, 2012)

While the acknowledgment portion stated that the will consists of 7 pages including
the page on which the ratification and acknowledgment are written, it was observed
that the will has 8 pages including the acknowledgment portion.

RULING:

The law is clear that the attestation must state the number of pages used upon which
the will is written. The purpose of the law is to safeguard against possible interpolation
or omission of one or some of its pages and prevent any increase or decrease in the
pages. While Article 809 allows substantial compliance for defects in the form of the
attestation clause, Richard likewise failed in this respect. The statement in the
Acknowledgment portion of the subject last will and testament that it "consists of 7
pages including the page on which the ratification and acknowledgment are written"
cannot be deemed substantial compliance. The will actually consists of 8 pages
including its acknowledgment which discrepancy cannot be explained by mere
examination of the will itself but through the presentation of evidence '. On this score
is the comment of Justice J.B.L. Reyes regarding the application of Article 809, to wit:
x x x The rule must be limited to disregarding those defects that can be supplied by
an examination of the will itself: whether all the pages are consecutively numbered;
whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All these are facts that the will itself can
reveal, and defects or even omissions concerning them in the attestation clause can
be safely disregarded. But the total number and whether all persons required to sign
did so in the presence of each other must substantially appear in the attestation
clause, being the only check against perjury in the probate proceedings.

TABOADA vs. ROSAL (118 SCRA 195, G.R. NO. L-36033, November 5, 1982)
The attestation clause failed to state the number of pages used in writing the will. This
would have been a fatal defect were it not for the fact that, in this case, it is discernible
from the entire will that it is really and actually composed of only two pages duly signed
by the testatrix and her instrumental witnesses. As earlier stated, the first page which
contains the entirety of the testamentary dispositions is signed by the testatrix at the
end or at the bottom while the instrumental witnesses signed at the left margin. The
other page which is marked as "Pagina dos" comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that "This Last Will and
Testament consists of two pages including this page."

DISTINGUISH MARGINAL SIGNATURE FROM ATTESTING SIGNATURE?

AZUELA vs. CA (G.R. NO. 122880, April 12, 2006)

14
The three named witnesses to the will affixed their signatures on the left-hand margin
of both pages of the will, but not at the bottom of the attestation clause. Is the will
valid?
HELD: No. While the signatures of the instrumental witnesses appear on the left-hand
margin of the will, they do not appear at the bottom of the attestation clause which
after all consists of their averments before the notary public. Cagro v. Cagro is
material on this point. As in this case, “the signatures of the three witnesses to the will
do not appear at the bottom of the attestation clause, although the page containing
the same is signed by the witnesses on the left-hand margin.” While three (3) Justices
considered the signature requirement had been substantially complied with, a majority
of six (6), speaking through Chief Justice Paras, ruled that the attestation clause had
not been duly signed, rendering the will fatally defective.

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

We are of the opinion that the position taken by the appellant is

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

The petitioner and appellee contends that signatures of the three

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

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

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

15
testator had signed the will and every page thereof; and that they witnessed and
signed the will and all the pages thereof in the presence of the testator and of one
another. The only proof in the will that the witnesses have stated these elemental facts
would be their signatures on the attestation clause.

WHAT IS AN ACKNOWLEDGMENT BEFORE A NOTARY PUBLIC?

AZUELA vs. CA (G.R. NO. 122880, April 12, 2006)

Yet, there is another fatal defect to the will on which the denial of this petition
should also hinge. The requirement under Article 806 that “every will must be
acknowledged before a notary public by the testator and the witnesses” has also
not been complied with. The importance of this requirement is highlighted by the
fact that it had been segregated from the other requirements under Article 805 and
entrusted into a separate provision, Article 806. The non-observance of Article 806
in this case is equally as critical as the other cited flaws in compliance with Article
805, and should be treated as of equivalent import.

In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote

“Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod
ng Maynila.” By no manner of contemplation can those words be construed as an
acknowledgment. An acknowledgment is the act of one who has executed a deed
in going before some competent officer or court and declaring it to be his act or
deed. It involves an extra step undertaken whereby the signor actually declares to
the notary that the executor of a document has attested to the notary that the
same is his/her own free act and deed.

It might be possible to construe the averment as a jurat, even though it does not
hew to the usual language thereof. A jurat is that part of an affidavit where the
notary certifies that before him/her, the document was subscribed and sworn to by
the executor. Ordinarily, the language of the jurat should avow that the document
was subscribed and sworn before the notary public, while in this case, the notary
public averred that he himself “signed and notarized” the document. Possibly
though, the word “ninotario” or “notarized” encompasses the signing of and
swearing in of the executors of the document, which in this case would involve the
decedent and the instrumental witnesses.

Yet even if we consider what was affixed by the notary public as a jurat, the will
would nonetheless remain invalid, as the express requirement of Article 806 is that
the will be “acknowledged”, and not merely subscribed and sworn to. The will does
not present any textual proof, much less one under oath, that the decedent and
the instrumental witnesses executed or signed the will as their own free act or
deed. The acknowledgment made in a will provides for another all-important legal
safeguard against spurious wills or those made beyond the free consent of the
testator. An acknowledgement is not an empty meaningless act. The
acknowledgment coerces the testator and the instrumental witnesses to declare
before an officer of the law that they had executed and subscribed to the will as
their own free act or deed. Such declaration is under oath and under pain of
perjury, thus allowing for the criminal prosecution of persons who participate in the
execution of spurious wills, or those executed without the free consent of the
testator. It also provides a further degree of assurance that the testator is of certain
mindset in making the testamentary dispositions to those persons he/she had
designated in the will. It may not have been said before, but we can assert the rule,
self-evident as it is under Article 806. A notarial will that is not acknowledged before
a notary public by the testator and the witnesses is fatally defective, even if it is
subscribed and sworn to before a notary public.

16
ECHAVEZ vs. DOZEN CONSTRUCTION AND DEVELOPMENT CORPORATION
and THE REGISTER OF DEEDS OF CEBU CITY (G.R. No. 192916, October 11,
2010)
Vicente Echavez (Vicente) was the absolute owner of several lots in Cebu City, which
includes Lot No. 1956-A and Lot No. 1959 (subject lots). On September 7, 1985,
Vicente donated the subject lots to petitioner Manuel Echavez (Manuel) through a
Deed of Donation Mortis Causa. Manuel accepted the donation. In March 1986,
Vicente executed a Contract to Sell over the same lots in favor of Dozen Construction
and Development Corporation (Dozen Corporation). In October 1986, they executed
two Deeds of Absolute Sale over the same properties covered by the previous
Contract to Sell. On November 6, 1986, Vicente died. Emiliano Cabanig, Vicente’s
nephew, filed a petition for the settlement of Vicente’s intestate estate. On the other
hand, Manuel filed a petition to approve Vicente’s donation mortis causa in his
favor and an action to annul the contracts of sale Vicente executed in favor of
Dozen Corporation. These cases were jointly heard.
RULING:

A donation mortis causa must comply with the formalities prescribed by law for the
validity of wills, “otherwise, the donation is void and would produce no effect.” Articles
805 and 806 of the Civil Code should have been applied. The purported attestation
clause embodied in the Acknowledgment portion does not contain the number of
pages on which the deed was written. Even granting that the Acknowledgment
embodies what the attestation clause requires, we are not prepared to hold that an
attestation clause and an acknowledgment can be merged in one statement. That the
requirements of attestation and acknowledgment are embodied in two separate
provisions of the Civil Code (Articles 805 and 806, respectively) indicates that the law
contemplates two distinct acts that serve different purposes. An acknowledgment is
made by one executing a deed, declaring before a competent officer or court that the
deed or act is his own. On the other hand, the attestation of a will refers to the act of
the instrumental witnesses themselves who certify to the execution of the instrument
before them and to the manner of its execution. Although the witnesses in the present
case acknowledged the execution of the Deed of Donation Mortis Causa before the
notary public, this is not the avowal the law requires from the instrumental witnesses
to the execution of a decedent’s will. An attestation must state all the details the third
paragraph of Article 805 requires. In the absence of the required avowal by the
witnesses themselves, no attestation clause can be deemed embodied in the
Acknowledgement of the Deed of Donation Mortis Causa.

CAN THE NOTARY PUBLIC BE ONE OF THE INSTRUMENTAL WITNESSES?

No. Because:
1. He cannot acknowledge document before himself. He cannot split his
personality into 2. Case: Cruz vs. Villasor (November 26, 1973)
2. Function of notary public is to guard against any illegal or immoral
arrangements. Function would be defeated if he were one of the attesting
witnesses because by then he would be interested in sustaining the validity of
the will as it directly involves himself and the validity of his own act.

WHAT ARE THE ADDITIONAL REQUISITES FOR A BLIND TESTATOR?

- Reading is twice.
1. Once by one of the subscribing witnesses
2. Once by the notary public

ALVARADO vs. GAVIOLA (226 SCRA 317)

17
 The testatrix was suffering from glaucoma by virtue of which, her vision on both
eyes was only capable of counting fingers at three (3) feet. She designated a
lawyer to draft her notarial will. After the final draft was completed, the lawyer
distributed copies of the will to the three instrumental witnesses and to the notary
public before whom the will was to be acknowledged. The lawyer who drafted the
will read the will aloud in the presence of the testarixt, the three instrumental
witnesses, and the notary public. The latter four just silently followed the reading
with their own respective copies previously furnished them. Upon being asked,
the testatrix affirmed that the contents as read corresponded with her instructions.
The signing and acknowledgment then took place. The probate was contested on
the ground that the reading requirement under Article 808 of the New Civil Code
was not complied with.
HELD: Article 808 applies not only to blind testators but also to those who, for one
reason or another, are incapable of reading their wills. Hence, the will should have
been read by the notary public and an instrumental witness. However, the spirit
behind the law was served though the letter was not. Although there should be
strict compliance with the substantial requirements of the law in order to insure the
authenticity of the will, the formal imperfections should be brushed aside when they
do not affect its purpose and which, when taken into account, may only defeat the
testator’s will.

WHAT IS THE PRINCIPLE OF SUBSTANTIAL COMPLIANCE?

 The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: Eg. Whether the pages are consecutively numbered,
whether the signatures appear in each and every page, whether there are 3
subscribing witnesses, etc.

TESTATE ESTATE OF THE LATE ALIPIO ABADA vs. ABAJA (G.R. NO.
147145, JANUARY 31, 2005)
[T]he so-called liberal rule does not offer any puzzle or difficulty, nor does it open
the door to serious consequences. The later decisions do tell us when and where
to stop; they draw the dividing line with precision. They do not allow evidence
aliunde to fill a void in any part of the document or supply missing details
that should appear in the will itself. They only permit a probe into the will,
an exploration within its confines, to ascertain its meaning or to determine
the existence or absence of the requisite formalities of law. This clear, sharp
limitation eliminates uncertainty and ought to banish any fear of dire results.

WHAT ARE THE REQUISITES FOR HOLOGRAPHIC WILLS?

1. Must be written in a language or dialect known to the testator (Art 804);
2. Entirely written by the testator;
3. Must be dated by him;
4. Must be signed by him;
5. Must be made with animus testandi;

CAN THE TESTATOR ADD DISPOSITIONS AFTER HIS SIGNATURE IN A

HOLOGRAPHIC WILL?
 Yes. The additional dispositions must be dated and signed by the testator. 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.

WHAT IF THE ADDITIONAL DISPOSITION IS WRITTEN BY A THIRD PERSON?

1. If disposition is also signed and dated by the third person, with or without
testator’s consent, disposition is void. It is independent of the will because it

18
 does not have the participation of the testator in the form of his signature. Will
not affect the validity of the will itself. Consider as not written.
2. If signed and dated by the testator, whole will is void because by affixing the
testator’s signature and date, the additional dispositions become part of the will,
not independent anymore. In this case, there are portions of the will not written
by the testator. A holographic will must be entirely written, dated and signed in
the hand of the testator. Relate to Article 810.

CAN THE TESTATOR MAKE INSERTIONS, CANCELLATIONS, ERASURES OR

ALTERATIONS IN A HOLOGRAPHIC WILL?
- Insertion, cancellation, erasure or alteration in a holographic will is not prohibited
as long as authenticated by full signature of testator.
- Reason: To prevent fraud. The execution of will is a personal act of the testator so
it is but natural and logical that he alone can authenticate whatever correction may
be found in the will.
- Without authentication: Gen. Rule: Will is valid. Insertions, etc. considered as not
made. Exception: where insertions, etc. affect the essence of the will as when there
is intent to revoke, then whole will is invalidated. Examples:

1. Kalaw vs. Relova (132 SCRA 237) – there was only one substantial provision
which was altered by substituting the original heir with another heir. The
alteration had no full signature. Held: whole will void because nothing remains
in the will after the alteration invalidated.

2. Ajero vs. CA (236 SCRA 488, 1994) – effect of unauthorized alterations,

cancellations, or insertions (insertions not authenticated by full signature of
testator). If made on the date, or signature in a holographic will, entire will is
void.

WHAT IS A JOINT WILL?

 It is one where the same testamentary instrument is made the will of two or more
persons and is jointly executed and signed by them. It is not necessarily mutual.
 Mutual or reciprocal wills – the separate wills of two persons which are reciprocal
in their provisions, giving the separate property of each testator to the other. They
are executed with a common intention on the part of the testators irrespective of
whether there is a contract between them, although the contractual element is
often involved. Also called twin will in American law.
 Mutual or reciprocal wills or twin wills may be embodied in separate instruments or
in the same instrument. If in separate instruments, allowed. Give Example: If in
the same instrument, they become joint wills and are thus prohibited. In this case,
they are called joint and mutual wills.
Dela Cerna vs. Potot (12 SCRA 576)
A joint will was executed by husband and wife in favor of niece. Husband died first,
will was erroneously probated in 1939. Judgment became final because no appeal
was made. Upon the subsequent death of wife, another petition for probate was made
as far as the estate of wife is concerned. Lower Court declared will null and void but
reversed by the CA on the ground that the decree of probate in 1939 was conclusive
on the due execution of will.
Held: The decision in 1939 which became final has conclusive effect as the last will
and testament of husband. Although erroneous because joint wills are not supposed
to be allowed, it could no longer be corrected by reason of its finality. However, that
erroneous allowance should only apply with respect to the estate of the husband. The
finality of the 1939 decree should not extend to the estate of the wife which was then
the one under consideration considering that a joint will is a separate will of each
testator. Upon the wife’s death, the joint will presented for probate must be examined
and adjudicated de novo (anew).

19
 Even if the laws of other countries (Argentina, Brazil, France, Mexico) allow joint
wills and the will is executed in these countries, still, if it is a Filipino who executes
the same, will is still void.

 If foreigner executes joint wills:

1. Abroad - if allowed in the law of place where he resides, or in the place of his
nationality, (art. 816) or in the place of execution (art. 17) then will is considered
valid in the Philippines. If one spouse is a Filipino, void as to Filipino, valid as
to foreigner.

2. In the Philippines – valid under art. 817 if executed according to the law of their
country which allows joint wills. But may be argued that void by reason of public
policy that should prevail over Art. 817.

WHAT IS THE CONCEPT OF INCORPORATION BY REFERENCE?

 Incorporation by reference is an exception to the general rule that only

documents executed in the form of wills may be admitted to probate.

ARTICLE 827. If a will, executed as required by this Code, incorporates into itself
by reference any document or paper, such document or paper shall not be considered
a part of the will unless the following requisites are present:

(1) The document or paper referred to in the will must be in existence at the time
of the execution of the will;

(2) The will must clearly describe and identify the same, stating among other things
the number of pages thereof;

(3) It must be identified by clear and satisfactory proof as the document or paper
referred to therein; and

(4) It must be signed by the testator and the witnesses on each and every page,
except in case of voluminous books of account or inventories.

WHAT LAWS GOVERN THE REVOCATION OF WILLS?

1) If made in the Philippines
- follow Philippine laws regardless of domicile or nationality of the testator.

2) If made outside the Philippines:

(c) By a non-resident (Filipino or alien)
i. law of the place where the will was made;
ii. law of the place of domicile
(d) By a resident (Filipino or alien)
i. law of the place of revocation
ii. law of the place of domicile (Philippines)
 National law has no applicability in cases of revocation
 The testator must have testamentary capacity at the time of revocation

HOW IS REVOCATION EFFECTED?

7. By implication of law (Revocation by Operation of Law)
8. By some will, codicil, or other writing executed as provided in case of wills
(Revocation by a Subsequent Instrument)
- Here, the new instrument must be admitted to probate before it can revoke
the old will
Express revocation – when the subsequent instrument has a revocatory clause
revoking the previous will

20
 Implied revocation – the new will or codicil is completely inconsistent with the old
will
9. By burning, tearing, cancelling, or obliterating the will with the intention of revoking
it, by the testator himself, or by some other person in his presence, and by his
express direction (Revocation by Overt Acts)
– intent must concur with overt acts
– overt acts may not be limited to burning, tearing, cancelling, or obliterating
because in the case of Roxas vs. Roxas, 48 O.G. 2177, the court impliedly
allowed crumpling as one of the overt acts provided there is animo revocandi.

WHAT IS THE DOCTRINE OF ABSOLUTE REVOCATION?

- A probated new will, although valid, may become inoperative or ineffective due to
the incapacity of the heirs, devisees or legatees. This fact notwithstanding, the
revocation of the previous will remains effective. The reason is that the revoking
will is valid except that it was rendered inoperative.

WHAT IS THE DOCTRINE OF DEPENDENT RELATIVE REVOCATION?

- Where the act or destruction is connected to the making of a will so as to squarely
raise the inference that the testator meant the revocation of the old would depend
upon the efficacy of the new disposition and if for any reason the new will intended
to be made as a substitute is inoperative, the revocation fails and the original will
is in full force and effect.

WHAT IS THE PRINCIPLE OF INSTANTER?

- If a valid will is expressly revoked by a second will and the second will is itself
revoked, the first will is not revived. Reason: revocation takes effect immediately
because it is not testamentary in character.

WHAT IS REPUBLICATION OF WILLS?

- the re-establishment by the testator of a previously revoked will or one invalid for
want of proper execution as to form or for other reasons, so as to give validity to
said will.
 If a will is void as to form due to non-observance of formalities, the only way
to revive the will is by express republication or republication by re-execution.
Meaning, the will must be executed anew, this time, complying with the
formalities.
 If a will is void but not as to form, such as when the testator had no
testamentary capacity at the time it was executed, or the will was revoked,
republication can be effected by re-execution or also by implied republication
or republication by reference. Here, there is no need to copy the entire
provisions of the old will. Mere reference made in the new will or codicil to the
existence of the old will, suffices.

WHAT IS REVIVAL OF WILLS?

- the re-establishment to validity by operation of law of a previously revoked will.
Examples:
– When a valid will is impliedly revoked by a second will, and the second will is
itself revoked, the first will is revived (application of the doctrine of dependent
relative revocation);

– Preterition annuls the institution of heirs. But if the preterited heir dies ahead
of the testator, the institution is revived without prejudice to the right of
representation.

WHAT ARE THE BASIC PRINCIPLES IN PROBATE?

21
1. PROBATE IS MANDATORY

HEIRS OF ROSENDO LASAM vs. UMENGAN (G.R. No. 168156, December 6,

2006)
The presentation of the will for probate is mandatory and is a matter of
public policy. The MTCC and RTC, therefore, erroneously ruled that
petitioners have a better right to possess the subject lot on the basis of
the purported last will and testament of Isabel Cuntapay, which, to date,
has not been probated. Stated in another manner, Isabel Cuntapay’s last
will and testament, which has not been probated, has no effect whatever
and petitioners cannot claim any right thereunder.

Contrary to the claim of petitioners, the dismissal of respondent’s action

for partition in Civil Case No. 4917 before the RTC (Branch 3) of
Tuguegarao City does not constitute res judicata on the matter of the
validity of the said conveyances or even as to the issue of the ownership
of the subject lot. Further, it is not quite correct for petitioners to contend
that the children of Isabel Cuntapay by her first marriage could not have
conveyed portions of the subject lot to respondent, as she had claimed,
because until the present, it is still covered by OCT Nos. 196 and 1032
under the names of Pedro and Leona Cuntapay. To recall, it was already
agreed by the heirs of the said spouses in a Partition Agreement dated
December 28, 1979 that the subject lot would belong to Isabel Cuntapay.
The latter died leaving her six children by both marriages as heirs.
Considering that her purported last will and testament has, as yet, no
force and effect for not having been probated, her six children are
deemed to be co-owners of the subject lot having their respective pro
indiviso shares. The conveyances made by the children of Isabel
Cuntapay by her first marriage of their respective pro indiviso shares in
the subject lot to respondent are valid because the law recognizes the
substantive right of heirs to dispose of their ideal share in the co-heirship
and/co-ownership among the heirs. Contrary to the assertion of
petitioners, therefore, the conveyances made by the children of Isabel
Cuntapay by her first marriage to respondent are valid insofar as their pro
indiviso shares are concerned. Moreover, the CA justifiably held that
these conveyances, as evidenced by the deed of donation and deed of
sale presented by respondent, coupled with the fact that she has been in
possession of the subject lot since 1955, establish that respondent has a
better right to possess the same as against petitioners whose claim is
largely based on Isabel Cuntapay’s last will and testament which, to date,
has not been probated; hence, has no force and effect and under which
no right can be claimed by petitioners. Likewise, it is therefore in this
context that the CA’s finding on the validity of Isabel Cuntapay’s last will
and testament must be considered. Such is merely a provisional ruling
thereon for the sole purpose of determining who is entitled to possession
de facto.

2. ESTOPPEL AND PRESCRIPTION WILL NOT APPLY IN PROBATE

3. PROBATE IS LIMITED TO THE EXTRINSIC VALIDITY OF THE WILL

Matters resolved in probate (Dorotheo vs. Court of Appeals)

1. Whether the instrument offered for probate is the last will and testament of the
decedent – a question of identity;

22
 2. Whether the will was executed according to the formalities required by law – a
question of due execution;
3. Whether the testator had testamentary capacity at the time of execution – a
question of testamentary capacity.

 Hence, probate court no power to pass upon intrinsic validity or legality of

provisions in the will, such as:
a. legacy is void;
b. invalid disinheritance;
c. a certain person has no right to inheritance;
d. impairment of legitime;
e. filiation;
f. title to property.

 Exceptions:

MORALES vs. OLONDRIZ, ET. AL. (G.R. No. 198994; February 3, 2016)
Preterition consists in the omission of a compulsory heir from the will, either because
he is not named or, although he is named as a father, son, etc., he is neither instituted
as an heir nor assigned any part of the estate without expressly being disinherited -
tacitly depriving the heir of his legitime. Preterition requires that the omission is total,
meaning the heir did not also receive any legacies, devises, or advances on his
legitime.

In other words, preterition is the complete and total omission of a compulsory heir from
the testator's inheritance without the heir's express disinheritance.

Under the Civil Code, the preterition of a compulsory heir in the direct line shall annul
the institution of heirs, but the devises and legacies shall remain valid insofar as the
legitimes are not impaired. Consequently, if a will does not institute any devisees or
legatees, the preterition of a compulsory heir in the direct line will result in total
intestacy.

In the present case, the decedent's will evidently omitted Francisco Olondriz as an
heir, legatee, or devisee. As the decedent's illegitimate son, Francisco is a compulsory
heir in the direct line. Unless Morales could show otherwise, Francisco's omission
from the will leads to the conclusion of his preterition.

During the proceedings in the RTC, Morales had the opportunity to present evidence
that Francisco received donations inter vivos and advances on his legitime from the
decedent. However, Morales did not appear during the hearing dates, effectively
waiving her right to present evidence on the issue. We cannot fault the RTC for
reaching the reasonable conclusion that there was preterition.

The remaining question is whether it was proper for the RTC to (1) pass upon the
intrinsic validity of the will during probate proceedings and (2) order the case to
proceed intestate because of preterition.

The general rule is that in probate proceedings, the scope of the court's inquiry is
limited to questions on the extrinsic validity of the will; the probate court will only
determine the will's formal validity and due execution. However, this rule is not
inflexible and absolute. It is not beyond the probate court's jurisdiction to pass upon
the intrinsic validity of the will when so warranted by exceptional circumstances. When
practical considerations demand that the intrinsic validity of the will be passed upon
even before it is probated, the probate court should meet the issue.

23
The decedent's will does not contain specific legacies or devices and Francisco's
preterition annulled the institution of heirs. The annulment effectively caused the total
abrogation of the will, resulting in total intestacy of the inheritance. The decedent's
will, no matter how valid it may appear extrinsically, is null and void. The conduct of
separate proceedings to determine the intrinsic validity of its testamentary provisions
would be superfluous. Thus, we cannot attribute error - much less grave abuse of
discretion - on the RTC for ordering the case to proceed intestate.

ARANAS vs. MERCADO, ET AL. (G.R. No. 156407, January 15, 2014)

The probate court is authorized to determine the issue of ownership of properties for
purposes of their inclusion or exclusion from the inventory to be submitted by the
administrator, but its determination shall only be provisional unless the interested
parties are all heirs of the decedent, or the question is one of collation or
advancement, or the parties consent to the assumption of jurisdiction by the probate
court and the rights of third parties are not impaired. Its jurisdiction extends to matters
incidental or collateral to the settlement and distribution of the estate, such as the
determination of the status of each heir and whether property included in the inventory
is the conjugal or exclusive property of the deceased spouse.

CAMAYA vs. PATULANDONG (G.R. No. 144915, February 23, 2004)

It is well-settled rule that a probate court or one in charge of proceedings
whether testate or intestate cannot adjudicate or determine title to properties
claimed to be a part of the estate and which are equally claimed to belong to
outside parties. All that said court could do as regards said properties is to
determine whether they should or should not be included in the inventory or list
of properties to be administered by the administrator. If there is no dispute, well and
good; but if there is, then the parties, the administrator, and the opposing
parties have to resort to an ordinary action for a final determination of the
conflicting claims of title because the probate court cannot do so.
Having been apprised of the fact that the property in question was in the possession
of third parties and more important, covered by a transfer certificate of title issued in
the name of such third parties, the respondent court should have denied the motion
of the respondent administrator and excluded the property in question from the
inventory of the property of the estate. It had no authority to deprive such third
persons of their possession and ownership of the property. x x x (Emphasis and
underscoring supplied)
Following Cuizon, the probate court exceeded its jurisdiction when it further declared
the deed of sale and the titles of petitioners null and void, it having had the effect of
depriving them possession and ownership of the property.
Moreover, following Section 48 of the Property Registry Decree which reads:
SECTION 48. Certificate not subject to collateral attack. - A certificate of title shall not
be subject to collateral attack. It cannot be altered, modified, or cancelled except in a
direct proceeding in accordance with law,
petitioners’ titles cannot, under probate proceedings, be declared null and void.

ROMERO vs. COURT OF APPEALS (G.R. No. 188921, April 18, 2012)

In Bernardo v. Court of Appeals, the Supreme Court declared that the determination
of whether a property is conjugal or paraphernal for purposes of inclusion in the
inventory of the estate rests with the probate court:
In the case now before us, the matter in controversy is the
question of ownership of certain of the properties involved whether

24
 they belong to the conjugal partnership or to the husband
exclusively. This is a matter properly within the jurisdiction of the
probate court which necessarily has to liquidate the conjugal
partnership in order to determine the estate of the decedent which
is to be distributed among his heirs who are all parties to the
proceedings.

In the present case, petitioners assume that the properties subject of the
allegedly illegal sale are conjugal and constitute part of their share in the estate. To
date, there has been no final inventory of the estate or final order adjudicating the
shares of the heirs. Thus, only the probate court can competently rule on whether the
properties are conjugal and form part of the estate. It is only the probate court that
can liquidate the conjugal partnership and distribute the same to the heirs, after the
debts of the estate have been paid.

RAMON S. CHING AND PO WING PROPERTIES, INC. vs. RODRIGUEZ (G.R. No.
192828, November 28, 2011)
The Complaint, is captioned as one for "Disinheritance, Declaration of Nullity of
Agreement and Waiver, Affidavit of Extra-Judicial Settlement, Deed of Absolute Sale,
Transfer Certificates of Title with Prayer for [the] Issuance of [a] Temporary
Restraining Order and [a] Writ of Preliminary Injunction". In the Complaint, the
respondents alleged, among others, that that Ramon misrepresented himself as
Antonio's (decedent) and Lucina's son when in truth and in fact, he was adopted and
his birth certificate was merely simulated. The decedent died of a stab wound and
police investigators identified Ramon as the prime suspect and he now stands as the
lone accused in a criminal case for murder filed against him. Warrants of arrest issued
against him have remained unserved as he is at large. From the foregoing
circumstances and upon the authority of Article 919 of the New Civil Code (NCC), the
respondents concluded that Ramon can be legally disinherited, hence, prohibited from
receiving any share from the estate of Antonio.
The petitioners argue that only a probate court has the authority to determine (a) who
are the heirs of a decedent; (b) the validity of a waiver of hereditary rights; (c) the
status of each heir; and (d) whether the property in the inventory is conjugal or the
exclusive property of the deceased spouse. Further, the extent of Antonio's estate,
the status of the contending parties and the respondents' alleged entitlement as heirs
to receive the proceeds of Antonio's CPPA now in Metrobank's custody are matters
which are more appropriately the subjects of a special proceeding and not of an
ordinary civil action.

RULING:
An action for reconveyance and annulment of title with damages is a civil action,
whereas matters relating to settlement of the estate of a deceased person such as
advancement of property made by the decedent, partake of the nature of a special
proceeding, which concomitantly requires the application of specific rules as provided
for in the Rules of Court. A special proceeding is a remedy by which a party seeks to
establish a status, a right, or a particular fact. It is distinguished from an ordinary civil
action where a party sues another for the enforcement or protection of a right, or the
prevention or redress of a wrong. To initiate a special proceeding, a petition and not
a complaint should be filed.
Under Article 916 of the NCC, disinheritance can be effected only through a will
wherein the legal cause therefor shall be specified. This Court agrees with the RTC
and the CA that while the respondents in their Complaint and Amended Complaint
sought the disinheritance of Ramon, no will or any instrument supposedly effecting

25
the disposition of Antonio's estate was ever mentioned. Hence, despite the prayer for
Ramon's disinheritance, Civil Case No. 02-105251 does not partake of the nature of
a special proceeding and does not call for the probate court's exercise of its limited
jurisdiction.

1. PROBATE IS A PROCEEDING IN REM

ATILANO MERCADO VS. SANTOS (66 Phil 216) – probate proceeding is a

proceeding in rem. The judgment of the court is binding upon everybody even
against the State.

2. PROBATE IS CONCLUSIVE AS TO THE DUE EXECUTION OF WILLS

 Due execution of will and testamentary capacity of testator acquire the

character of res judicata

ATILANO MERCADO vs. SANTOS (66 Phil 216) - After final judgment on the
probate, proponent was prosecuted for allegedly having presented a forged
will. The case for forgery could not prosper because judgment on probate was
conclusive as to the due execution of the will.

IS IT MANDATORY TO PRESENT THE 3 WITNESSES IF THE PROBATE OF A

HOLOGRAPHIC WILL IS CONTESTED?

- In the case of Azaola vs. Singson, not mandatory because no witnesses are
required during execution of holographic wills, hence, it is obvious that the
existence of witnesses possessing the requisite qualification is a matter beyond
the control of the proponent of will. Mandatory only in notarial wills because at least
3 witnesses are required during the execution of will.

- BUT in the case of Codoy vs. Calugay (312 SCRA 333 [1999]), 3 witnesses are
mandatory in contested holographic wills. Reasons:
A. word “shall” connotes an imperative obligation and is inconsistent with the idea
of discretion
B. To prevent the possibility that unscrupulous individuals who, for their benefit,
will employ means to defeat the wishes of the testator. Since the possibility of
a false document being adjudged as the will cannot be eliminated, if the will is
contested, at least 3 of the required witnesses should declare that the
holographic will is in the handwriting and signature of testator.

CAN THE WILL BE PROBATED IN THE ABSENCE OF A COPY PRESENTED IN

COURT?

In case of notarial wills: YES. Even if there is no copy of the will, the will may still be
probated if its contents are clearly and distinctly proved by at least 2 credible
witnesses.

In case of holographic wills: NO. In holographic wills, there is no guaranty of the truth
and veracity of the will from the mere testimony of witnesses because these witnesses
are not present during the execution of the will. The law regards the document itself
as material proof of authenticity, and as its own safeguard, since, from the document
itself, it could be demonstrated whether or not it is in the hands of the testator himself.
Witnesses may be mistaken in their opinion as to the handwriting of the testator or
they may deliberately lie. Oppositors may present contradictory evidence, such as
testimonies of other expert witnesses or other witnesses who know the handwriting
and signature of the testator, or writings or letters in the handwriting and signature of

26
the testator. In view of such contradictory evidence, the court may use its own visual
sense and decide in the face of the document, whether is has indeed been written by
the testator.

Thus, if the will is holographic, there must at least be a copy. Otherwise, the
will cannot be admitted to probate.

RODELAS VS. ARANZA (119 SCRA 16)

Photostatic copy of holographic will may be probated. Carbon copy also allowed.

IN RE: IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF

RUPERTA PALAGANAS WITH PRAYER FOR THE APPOINTMENT OF SPECIAL
ADMINISTRATOR (G.R. No. 169144, January 26, 2011)
This case is about the probate before Philippine court of a will executed abroad by a
foreigner although it has not been probated in its place of execution. Petitioners
Manuel and Benjamin maintain that wills executed by foreigners abroad must first be
probated and allowed in the country of its execution before it can be probated here.
This, they claim, ensures prior compliance with the legal formalities of the country of
its execution. They insist that local courts can only allow probate of such wills if the
proponent proves that: (a) the testator has been admitted for probate in such foreign
country, (b) the will has been admitted to probate there under its laws, (c) the probate
court has jurisdiction over the proceedings, (d) the law on probate procedure in that
foreign country and proof of compliance with the same, and (e) the legal requirements
for the valid execution of a will.
RULING:
Our laws do not prohibit the probate of wills executed by foreigners abroad although
the same have not as yet been probated and allowed in the countries of their
execution. A foreign will can be given legal effects in our jurisdiction. Article 816 of
the Civil Code states that the will of an alien who is abroad produces effect in the
Philippines if made in accordance with the formalities prescribed by the law of the
place where he resides, or according to the formalities observed in his country. In this
connection, Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides that if
the decedent is an inhabitant of a foreign country, the RTC of the province where he
has an estate may take cognizance of the settlement of such estate. Sections 1 and
2 of Rule 76 further state that the executor, devisee, or legatee named in the will, or
any other person interested in the estate, may, at any time after the death of the
testator, petition the court having jurisdiction to have the will allowed, whether the
same be in his possession or not, or is lost or destroyed. Our rules require merely
that the petition for the allowance of a will must show, so far as known to the petitioner:
(a) the jurisdictional facts; (b) the names, ages, and residences of the heirs, legatees,
and devisees of the testator or decedent; (c) the probable value and character of the
property of the estate; (d) the name of the person for whom letters are prayed; and
(e) if the will has not been delivered to the court, the name of the person having
custody of it. Jurisdictional facts refer to the fact of death of the decedent, his
residence at the time of his death in the province where the probate court is sitting, or
if he is an inhabitant of a foreign country, the estate he left in such province. The rules
do not require proof that the foreign will has already been allowed and probated in the
country of its execution.
In insisting that Ruperta’s will should have been first probated and allowed by the
court of California, petitioners Manuel and Benjamin obviously have in mind the
procedure for the reprobate of will before admitting it here. But, reprobate or re-
authentication of a will already probated and allowed in a foreign country is different
from that probate where the will is presented for the first time before a competent
court. Reprobate is specifically governed by Rule 77 of the Rules of Court. Contrary

27
to petitioners’ stance, since this latter rule applies only to reprobate of a will, it cannot
be made to apply to the present case. In reprobate, the local court acknowledges as
binding the findings of the foreign probate court provided its jurisdiction over the matter
can be established. Besides, petitioners’ stand is fraught with impractically. If the
instituted heirs do not have the means to go abroad for the probate of the will, it is as
good as depriving them outright of their inheritance, since our law requires that no will
shall pass either real or personal property unless the will has been proved and allowed
by the proper court.

WHAT ARE THE GROUNDS FOR DISALLOWANCE OF WILLS?

ARTICLE 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with (Arts. 804-809);
(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 (Arts. 1334 and 1335);
(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 (must refer to the nature
of the instrument or its contents);
(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)
* Add: If the will was expressly revoked.
- the grounds are exclusive. No other grounds can serve to disallow will

WHAT IS PRETERITION?
- It is the 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, which, as a consequence, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious.

WHO CAN BE PRETERITED?

- Compulsory heirs who are in the direct line, specifically ascendants and
descendants, ad infinitum, and adopted children. The spouse cannot claim preterition
because she is not a relative in the direct line (Acain vs. IAC [155 SCRA 100]).

WHAT IS THE OMISSION THAT RESULTS IN PRETERITION?

1. The person is not an heir, not a devisee, not a legatee, thus, receives nothing
by will (Aznar vs. Duncan [17 SCRA 590]);

2. No donation inter vivos was given to him

3. There is nothing which could be inherited by intestacy because the whole

estate was distributed by will;

4. There is no prior delivery of presumptive legitime.

Note: The omission may be intentional or unintentional

WHAT IS THE EFFECT OF PRETERITION?

- the institution of heirs is annulled. Hence, distribute the estate in accordance with the
rules on legal succession. But the devises and legacies shall be valid insofar as they

28
are not inofficious. If the omitted compulsory heirs should die before the testator, the
institution shall be effectual, without prejudice to the right of representation.

WHAT ARE THE TYPES OF SUBSTITUTION OF HEIRS?

 Types of Substitution
A. Simple substitution (direct substitution), which may be:
5. Vulgar - 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.
6. Brief - two or more persons may be substituted for one
7. Compendious - one substitute for two or more heirs.
8. Reciprocal – the instituted heirs are also the substitutes of each other.

B. Fideicommissary (indirect substitution) - 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.

WHAT ARE THE KINDS OF INSTITUTION OF HEIRS?

1. Simple or pure – not subject to any condition, term or burden
2. Conditional – (Arts. 871-877, 883-884)
3. With a term – (Arts. 878, 880-881)
4. Modal – (Arts. 882-883)

COMPARE AND CONTRAST MODE AND CONDITION?

* Similarities: In both modes and condition (negative potestative),
1. there is a security requirement;
2. there is a forfeiture provision, a return of principal and fruits
* Differences:
1. Mode does not suspend the efficacy of the rights to the succession while a
condition suspends such efficacy;
2. Mode is obligatory except when it is for the exclusive benefit of the person
concerned, while a condition is never obligatory;
3. The demandability or extinction of a rigt depends on the fulfillment of the condition,
whereas in a mode, the right given is immediately demandable although
subordinate to the subsequent fulfillment of the obligation expressed in the
testamentary disposition

* Rules of interpretation:
1. When there is doubt if it is a mode or condition: construed as modal following the
principle that testamentary dispositions are acts of liberality
2. When there is doubt as to the existence of a modal institution: not considered as
a mode but merely as a suggestion or discussion which the heir may or may not
follow, in keeping with the nature of testamentary dispositions as acts of liberality.
For a statement to be considered as a mode, it must have coercive or obligatory
force

RABADILLA vs. CA (JUNE 29, 2000)

In the Codicil of testatrix, Dr. Rabadilla was instituted as a devisee of Lot No. 1392
contained the following provisions, among others:
1. Rabadilla shall have the obligation until he dies, every year to give to Belleza
100 piculs of sugar until Belleza dies;

29
 2. Should Rabadilla die, his heir to whom he shall give Lot No. 1392 shall have
the obligation to still give yearly, the sugar as specified to Belleza.
3. In the event that the lot is sold, leased, or mortgaged, the buyer, lessee,
mortgagee, shall have also the obligation to respect and deliver yearly sugar
to Belleza. Should the command be not respected Belleza shall immediately
seize the lot and turn it over to the testarix’ near descendants.

HELD:
Not a case of simple substitution. In simple substitutions, the second heir takes the
inheritance in default of the first heir by reason of incapacity, predecease or
renunciation. The Codicil do not provide that should Dr. Rabadilla default due to
predecease, incapacity or renunciation, the testatrix's near descendants would
substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his
heirs not fulfill the conditions imposed in the Codicil, the property referred to shall be
seized and turned over to the testatrix's near descendants.

Neither is there a fideicommissary substitution. In a fideicommissary substitution, the

first heir is strictly mandated to preserve the property and to transmit the same later
to the second heir. Here, the instituted heir is in fact allowed under the Codicil to
alienate the property provided the negotiation is with the near descendants or the
sister of the testatrix. Thus, a very important element of a fideicommissary substitution
is lacking; the obligation clearly imposing upon the first heir the preservation of the
property and its transmission to the second heir. Also, the near descendants' right to
inherit from the testatrix is not definite. The property will only pass to them should Dr.
Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private
respondent. Moreover, a fideicommissary substitution is void if the first heir is not
related by first degree to the second heir. In the case under scrutiny, the near
descendants are not at all related to the instituted heir, Dr. Rabadilla.

Not a conditional institution. It is clear that the testatrix intended that the lot be inherited
by Dr. Rabadilla. It is likewise clearly worded that the testatrix imposed an obligation
on the said instituted heir and his successors-in-interest to deliver sugar to Belleza,
during the lifetime of the latter. However, the testatrix did not make Dr. Rabadilla's
inheritance and the effectivity of his institution as a devisee, dependent on the
performance of the said obligation. It is clear, though, that should the obligation be not
complied with, the property shall be turned over to the testatrix's near descendants.
Since testamentary dispositions are generally acts of liberality, an obligation imposed
upon the heir should not be considered a condition unless it clearly appears from the
Will itself that such was the intention of the testator. In case of doubt, the institution
should be considered as modal and not conditional.

The manner of institution of Dr. Rabadilla is modal in nature because it imposes a

charge upon the instituted heir without, however, affecting the efficacy of such
institution. A "mode" imposes an obligation upon the heir or legatee but it does not
affect the efficacy of his rights to the succession. On the other hand, in a conditional
testamentary disposition, the condition must happen or be fulfilled in order for the heir
to be entitled to succeed the testator. The condition suspends but does not obligate;
and the mode obligates but does not suspend. To some extent, it is similar to a
resolutory condition.

WHO ARE THE COMPULSORY HEIRS?

(1) Legitimate children and descendants, with respect to their legitimate parents
and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with respect to
their legitimate children and descendants;
(3) The widow or widower;

30
(4) Illegitimate children
In all cases of illegitimate children, their filiation must be duly proved.

ILANO vs. CA(G.R. No. 104376, February 23, 1994)

In this regard, Article 287 of the Civil Code provides that illegitimate children other
than natural in accordance with Article 269 and other than natural children by legal
fiction are entitled to support and such successional rights as are granted in the Civil
Code. The Civil Code has given these rights to them because the transgressions of
social conventions committed by the parents should not be visited upon them. They
were born with a social handicap and the law should help them to surmount the
disadvantages facing them through the misdeeds of their parents. However, before
Article 287 can be availed of, there must first be a recognition of paternity either
voluntarily or by court action. This arises from the legal principle that an unrecognized
spurious child like a natural child has no rights from his parents or to their estate
because his rights spring not from the filiation or blood relationship but from his
acknowledgement by the parent. In other words, the rights of an illegitimate child arose
not because he was the true or real child of his parents but because under the law, he
had been recognized or acknowledged as such a child.

UYGUANGCO versus COURT OF APPEALS (G.R. No. 76873, October 26, 1989)

"The issue before the Court is not the status of the private respondent, who
has been excluded from the family and inheritance of the petitioners. What we
are asked to decide is whether he should be allowed to prove that he is an
illegitimate child of his claimed father, who is already dead, in the absence of
the documentary evidence required by the Civil Code.

Xxx

Under the Family Code, it is provided that:

Art. 175. Illegitimate children may establish their illegitimate

filiation in the same way and on the same evidence as legitimate
children.

The following provision is therefore also available to the private

respondent in proving his illegitimate filiation:

Art. 172. The filiation of legitimate children is established by any

of the following:

(1) The record of birth appearing in the civil register or a final

judgment; or

(2) An admission of legitimate filiation in a public document or a

private handwritten instrument and signed by the parent
concerned.

In the absence of the foregoing evidence, the legitimate filiation

shall be proved by:

(1) The open and continuous possession of the status of a

legitimate child; or

(2) Any other means allowed by the Rules of Court and special
laws.

31
 While the private respondent has admitted that he has none of
the documents mentioned in the first paragraph (which are
practically the same documents mentioned in Article 278 of the
Civil Code except for the "private handwritten instrument signed
by the parent himself'''), he insists that he has nevertheless been
"in open and continuous possession of the status of an
illegitimate child," which is now also admissible as evidence of
filiation.

Thus, he claims that he lived with his father from 1967 until 1973,
receiving support from him during that time; that he has been
using the surname Uyguangco without objection from his father
and the petitioners as shown in his high school diploma, a special
power of attorney executed in his favor by Dorotea Uyguangco,
and another one by Sulpicio Uyguangco; that he has shared in
the profits of the copra business of the Uyguangcos, which is a
strictly family business; that he was a director, together with the
petitioners, of the Alu and Sons Development Corporation, a
family corporation; and that in the addendum to the original
extrajudicial settlement concluded by the petitioners he was given
a share in his deceased father's estate.

It must be added that the illegitimate child is now also allowed to

establish his claimed filiation by "any other means allowed by the
Rules of Court and special laws," like his baptismal certificate, a
judicial admission, a family Bible in which his name has been
entered, common reputation respecting his pedigree, admission
by silence, the testimonies of witnesses, and other kinds of proof
admissible under Rule 130 of the Rules of Court.

The problem of the private respondent, however, is that, since he

seeks to prove his filiation under the second paragraph of Article
172 of the Family Code, his action is now barred because of his
alleged father's death in 1975. The second paragraph of this
Article 175 reads as follows:

The action must be brought within the same period specified in

Article 173, except when the action is based on the second
paragraph of Article 172, in which case the action may be brought
during the lifetime of the alleged parent. (Italics supplied.)

It is clear that the private respondent can no longer be

allowed at this time to introduce evidence of his open and
continuous possession of the status of an illegitimate child
or prove his alleged filiation through any of the means
allowed by the Rules of Court or special laws. The simple
reason is that Apolinario Uyguangco is already dead and can
no longer be heard on the claim of his alleged son's
illegitimate filiation.

WHAT ARE THE LEGITIMES OF THE COMPULSORY HEIRS?

WHAT IS RESERVA TRONCAL?

- The process by which an ascendant who inherits by operation of law from his
descendant which the latter may have acquired by gratuitous title from another

32
 ascendant or a brother or sister, is obliged by law to reserve such property for
the benefit of third degree relatives who belong to the line from which the
property came from;
- Purpose: to prevent the accidental transfer of property/wealth from one line to
another line.

WHO ARE THE PARTIES IN RESERVA TRONCAL?

1. Origin
- The person from whom the reservable property comes from.
- Either an ascendant or (half) brother or sister of the prepositus

2. Prepositus
- Person to whom the origin transfers the property gratuitously
- The arbiter of the reserva because the prepositus may alienate or destroy the
property and thus prevent the existence of the reserve

3. Reservor (Reservatario)
- Ascendant of the prepositus
- The transfer to the reservoir must be by operation of law, either as legitime or by
intestacy
- The absolute owner of the property subject to the resolutory condition of
existence of the 3rd degree relatives of the prepositus upon the reservor’s death.
`
4. Reservees (Reservista)
- Belonging to the same line of the family as that of the origin
- Related to the prepositus in the 1st, 2nd, and 3rd degree.

SIENES vs. ESPARCIA (1 SCRA 750)

The Supreme Court upheld the validity of the simultaneous sales made by both the
reservor and the reservees to two different buyers. The reservor may alienate the
reservable property subject to as resolutory condition - his death – by virtue of which,
the property shall be transferred to relatives of the prepositus within the third degree
(reservees). In effect, there is a double resolutory condition – (1) death of the
reservoir; and (2) the survival of the reservees upon the death of the reservor.

MENDOZA, ET. AL. vs. DELOS SANTOS (G.R. No. 176422, March 20, 2013)
Petitioners are grandchildren of Placido Mendoza (Placido) and Dominga Mendoza
(Dominga). Placido and Dominga had four children: Antonio, Exequiel, married to
Leonor, Apolonio and Valentin. Petitioners Maria, Deogracias, Dionisia, Adoracion,
Marcela and Ricardo are the children of Antonio. Petitioners Juliana, Fely, Mercedes,
Elvira and Fortunato, on the other hand, are Valentin’s children. Petitioners alleged
that the properties were part of Placido and Dominga’s properties that were subject of
an oral partition and subsequently adjudicated to Exequiel. After Exequiel’s death, it
passed on to his spouse Leonor and only daughter, Gregoria. After Leonor’s death,
her share went to Gregoria. In 1992, Gregoria died intestate and without issue. They
claimed that after Gregoria’s death, respondent, who is Leonor’s sister, adjudicated
unto herself all these properties as the sole surviving heir of Leonor and Gregoria.
Hence, petitioners claim that the properties should have been reserved by respondent
in their behalf and must now revert back to them, applying Article 891 of the Civil Code
on reserva troncal.
RULING:
Based on the circumstances of the present case, Article 891 on reserva troncal is not
applicable.

33
The fallacy in the CA’s resolution is that it proceeded from the erroneous premise that
Placido is the ascendant contemplated in Article 891 of the Civil Code. From thence,
it sought to trace the origin of the subject properties back to Placido and Dominga,
determine whether Exequiel predeceased Placido and whether Gregoria predeceased
Exequiel.
It should be pointed out that the ownership of the properties should be reckoned only
from Exequiel’s as he is the ascendant from where the first transmission occurred, or
from whom Gregoria inherited the properties in dispute. The law does not go farther
than such ascendant/brother/sister in determining the lineal character of the property.
What is pertinent is that Exequiel owned the properties and he is the ascendant from
whom the properties in dispute originally came. Gregoria, on the other hand, is the
descendant who received the properties from Exequiel by gratuitous title.
Article 891 provides that the person obliged to reserve the property should be an
ascendant (also known as the reservor/reservista) of the descendant/prepositus.
Julia, however, is not Gregoria’s ascendant; rather, she is Gregoria’s collateral
relative. Gregoria’s ascendants are her parents, Exequiel and Leonor, her
grandparents, great-grandparents and so on. On the other hand, Gregoria’s
descendants, if she had one, would be her children, grandchildren and great-
grandchildren. Not being Gregoria’s ascendants, both petitioners and Julia, therefore,
are her collateral relatives.
Moreover, petitioners cannot be considered reservees/reservatarios as they are not
relatives within the third degree of Gregoria from whom the properties came. The
person from whom the degree should be reckoned is the descendant/prepositus―the
one at the end of the line from which the property came and upon whom the property
last revolved by descent. It is Gregoria in this case. Petitioners are Gregoria’s fourth
degree relatives, being her first cousins. First cousins of the prepositus are fourth
degree relatives and are not reservees or reservatarios.
They cannot even claim representation of their predecessors Antonio and Valentin as
Article 891 grants a personal right of reservation only to the relatives up to the third
degree from whom the reservable properties came. The only recognized exemption is
in the case of nephews and nieces of the prepositus, who have the right to represent
their ascendants (fathers and mothers) who are the brothers/sisters of the prepositus
and relatives within the third degree.
If at all, what should apply in the distribution of Gregoria’s estate are Articles 1003 and
1009 of the Civil Code, which provide:
Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving
spouse, the collateral relatives shall succeed to the entire estate of the deceased in
accordance with the following articles.

34
Art. 1009. Should there be neither brothers nor sisters, nor children of brothers or
sisters, the other collateral relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or preference among them by
reason of relationship by the whole blood.

WHAT IS THE DELAYED INTESTACY THEORY?

– When the resolutory condition of the reserva is fulfilled, the properties are
distributed to the reservees as if they are inheriting from the prepositus at the time of
fulfillment of the condition. Since there is no will, then the reserves inherit by virtue of
intestate succession, the decedent being the prepositus; thus the name Delayed
Intestacy.

WHAT ARE THE REQUISITES FOR A VALID DISINHERITANCE?

1. It should be embodied in a VALID WILL;
2. It must be made EXPRESSLY;
3. It should be for a LEGAL CAUSE;
4. It should be for a TRUE CAUSE;
5. It should be for an EXISTING CAUSE;
6. It should be TOTAL OR COMPLETE;
7. It should be STATED IN THE WILL;
8. The heir should be IDENTIFIED;
9. The will must not have been REVOKED.

Grounds: Arts. 919 (child or descendant), 920 (parent or ascendant) , 921

(spouse)

DISTINCTIONS BETWEEN DISINHERITANCE AND PRETERITION

Preterition Disinheritance
Consists in the omission in the testator's Is a testamentary disposition depriving
will of the forced heirs or anyone of them, any compulsory heirs of his share in the
either because they are not mentioned legitimate for a cause authorized by law.
therein, or, though mentioned, they are
neither instituted as heirs nor are
expressly disinherited.
Presumed to be "involuntary". Always "voluntary".
Shall annul the institution of heir. This Shall annul the institution of heirs", but
annulment is in toto, unless in the wiil there only "insofar as it may prejudice the
are, in addition, testamentary dispositions person disinherited", which last phrase
in the form of devises or legacies. was omitted in the case of preterition.
Better stated yet, in disinheritance the
nullity is limited to that portion of the estate
of which the disinherited heirs have been
illegally deprived.

Voluntary heirs cannot receive because of Voluntary heirs can still receive for as long
the total annulment of the institution. as the invalidly disinherited heir is given
his legitime.

35
WHAT IS THE EFFECT OF RECONCILIATION IN DISINHERITANCE?
- 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

EFFECT OF OWNERSHIP AS TO THE VALIDITY OF THE LEGACY OR DEVISE:

a. 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.
b. If the testator does not own the thing devised or bequeathed but the testator
erroneously believed that the thing pertained to him - the legacy or devise is
void, but subsequent acquisition of the thing by the testator makes the legacy
or devise effective.
c. If the testator does not own the thing devised or bequeathed and the testator
knew that he did not own the thing – legacy or devise is valid.
d. The thing devised or bequeathed belonged to the legatee or devisee at the time
of the execution of the will – legacy or devise is void.
e. The thing devised or bequeathed was acquired by the legatee or devisee after
the execution of the will - if the legatee or devisee acquired it gratuitously, 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.

WHAT ARE THE INSTANCES WHEN A LEGACY OR DEVISE IS CONSIDERED

REVOKED BY OPERATION OF LAW?
a. The legacy of credit or remission shall lapse if the testator, after having
made it, should bring an action against the debtor for the payment of his
debt;
b. If the testator transforms the thing bequeathed in such a manner that it
does not retain either the form or the denomination it had;
c. If the testator by any title or for any cause voluntarily alienates the thing
bequeathed or any part thereof, it being understood that in the latter case
the legacy or devise shall be without effect only with respect to the part
thus alienated. If after the alienation the thing should again belong to the
testator, even if it be by reason of nullity of the contract, the legacy or
devise shall not thereafter be valid, unless the reacquisition shall have
been effected by virtue of the exercise of the right of repurchase;
d. If the thing bequeathed is totally lost during the lifetime of the testator, or
after his death without the heir's fault.

WHEN SHALL LEGAL OR INTESTATE SUCCESSION TAKE PLACE?

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;
(3) If the suspensive condition attached to the institution of heir does not happen
or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance,
there being no substitution, and no right of accretion takes place;
(4) When the heir instituted is incapable of succeeding, except in cases provided
under the Civil Code.

WHO ARE THE LEGAL HEIRS?

1. Legitimate children and descendants;

36
 2. In the absence of legitimate children and descendants, legitimate
parents and ascendants;
3. Surviving spouse;
4. Illegitimate children;
5. Brothers and sisters;
6. Collateral relatives up to the 5th degree of consanguinity;
7. State

IF THERE IS ONLY PARTIAL INTESTACY, HOW SHOULD THE ESTATE BE

DISTRIBUTED?

Eg. Legacy of 20,000 estate is 100,000

➢ Charge legacies, etc.to the intestate shares of those given by law on intestacv
more than their respective legitimes, without however imparing said legitimes.
➢ The remainder after legacy and legitime of illegitimate is given, is again given to
the illegitimate because the intent of the law on intestacy is to give as much as
possible equal sharing with legit ascendants

WHAT IS THE IRON BAR RULE?

- In legal succession, there is absolute separation between legitimate family and
illegitimate family
- ARTICLE 992. An illegitimate child has no right to inherit ab intestato from the
legitimate children and relatives of his father or mother; nor shall such children
or relatives inherit in the same manner from the illegitimate child.
➢ Illustration

➢ Under Art. 992, I and J cannot represent F

➢ Under Art. 990, G and H can represent E
➢ Hence, an illegitimate can be represented by his children. legitimate or illegitimate,
but a legitimate child cannot be represented by his illegitimate children
➢ E cannot inherit from B and A
➢ D cannot inherit from C and vice versa (reciprocal prohibition)

IN THE MATTER OF THE INTESTATE ESTATE OF CRISTINA AGUINALDO-

SUNTAY; EMILIO A.M. SUNTAY III vs. ISABEL COJUANGCO-SUNTAY (G.R. No.
183053, June 16, 2010)
On June 4, 1990, the decedent, Cristina Aguinaldo-Suntay (Cristina), married to Dr.
Federico Suntay (Federico), died intestate. In 1979, their only son, Emilio Aguinaldo
Suntay (Emilio I), predeceased both Cristina and Federico. At the time of her death,
Cristina was survived by her husband, Federico, and several grandchildren, including
herein petitioner Emilio A.M. Suntay III (Emilio III) and respondent Isabel Cojuangco-
Suntay. During his lifetime, Emilio I was married to Isabel Cojuangco, and they begot
three children, namely: herein respondent, Isabel; Margarita; and Emilio II, all
surnamed Cojuangco-Suntay. Emilio I’s marriage to Isabel Cojuangco was
subsequently annulled. Thereafter, Emilio I had two children out of wedlock, Emilio III
and Nenita Suntay Tañedo (Nenita), by two different women, Concepcion Mendoza

37
and Isabel Santos, respectively. Despite the illegitimate status of Emilio III, he was
reared ever since he was a mere baby, nine months old, by the spouses Federico and
Cristina and was an acknowledged natural child of Emilio I. Nenita is an acknowledged
natural child of Emilio I and was likewise brought up by the spouses Federico and
Cristina. Upon the death of Cristina, Federico adopted Emilio III. During the intestate
proceeding over Cristina’s estate, Federico sought appointment as administrator
thereof. Later on, he nominated Emilio III to act as administrator.
The Court of Appeals (CA) zeroed in on Emilio III’s status as an illegitimate child of
Emilio I and, thus, barred from representing his deceased father in the estate of the
latter’s legitimate mother, the decedent. On the whole, the CA pronounced that Emilio
III, who was merely nominated by Federico, and which nomination hinged upon the
latter’s appointment as administrator of the decedent’s estate, cannot be appointed as
the administrator of the decedent’s estate for the following reasons:

1. The appointment of Emilio III was subject to a suspensive condition, i.e.,

Federico’s appointment as administrator of the estate, he being the surviving
spouse of Cristina, the decedent. The death of Federico before his appointment
as administrator of Cristina’s estate rendered his nomination of Emilio III
inoperative;
2. As between the legitimate offspring (respondent) and illegitimate offspring
(Emilio III) of decedent’s son, Emilio I, respondent is preferred, being the "next
of kin" referred to by Section 6, Rule 78 of the Rules of Court, and entitled to
share in the distribution of Cristina’s estate as an heir;
3. Jurisprudence has consistently held that Article 992 of the Civil Code bars
the illegitimate child from inheriting ab intestato from the legitimate children and
relatives of his father or mother. Thus, Emilio III, who is barred from inheriting
from his grandmother, cannot be preferred over respondent in the
administration of the estate of their grandmother, the decedent; and
4. Contrary to the RTC’s finding, respondent is as much competent as Emilio
III to administer and manage the subject estate for she possesses none of the
disqualifications specified in Section 1, Rule 78 of the Rules of Court.
The pivotal issue in this case turns on who, as between Emilio III and respondent, is
better qualified to act as administrator of the decedent’s estate.
HELD: We cannot subscribe to the appellate court’s ruling excluding Emilio III in the
administration of the decedent’s undivided estate. Mistakenly, the CA glosses over
several undisputed facts and circumstances:
1. The underlying philosophy of our law on intestate succession is to give
preference to the wishes and presumed will of the decedent, absent a valid and
effective will;
2. The basis for Article 992 of the Civil Code, referred to as the iron curtain bar
rule, is quite the opposite scenario in the facts obtaining herein for the actual
relationship between Federico and Cristina, on one hand, and Emilio III, on the
other, was akin to the normal relationship of legitimate relatives;
3. Emilio III was reared from infancy by the decedent, Cristina, and her
husband, Federico, who both acknowledged him as their grandchild;
4. Federico claimed half of the properties included in the estate of the decedent,
Cristina, as forming part of their conjugal partnership of gains during the
subsistence of their marriage;
5. Cristina’s properties forming part of her estate are still commingled with that
of her husband, Federico, because her share in the conjugal partnership, albeit
terminated upon her death, remains undetermined and unliquidated; and

38
 6. Emilio III is a legally adopted child of Federico, entitled to share in the
distribution of the latter’s estate as a direct heir, one degree from Federico, not
simply representing his deceased illegitimate father, Emilio I.
From the foregoing, it is patently clear that the CA erred in excluding Emilio III from
the administration of the decedent’s estate. As Federico’s adopted son, Emilio III’s
interest in the estate of Cristina is as much apparent to this Court as the interest
therein of respondent, considering that the CA even declared that "under the law,
[Federico], being the surviving spouse, would have the right of succession over a
portion of the exclusive property of the decedent, aside from his share in the conjugal
partnership." Thus, we are puzzled why the CA resorted to a strained legal reasoning
– Emilio III’s nomination was subject to a suspensive condition and rendered
inoperative by reason of Federico’s death – wholly inapplicable to the case at bar.

RULE IN THE ORDER OF SUCCESSION

1. Nearer excludes the farther subject to right of representation (eg. Children vs.
grandchildren)
2. If same degree, direct line is preferred over the collateral line (eg. Grandchildren
vs. brothers/sisters
3. If both in the direct line, descending favored over ascending, except illegitimate
descendants (eg. Parents vs. children)
4. If both in collateral, descending favored over ascending (eg. Aunts/uncles vs.
nephews/nieces

State
-succeeds in default of all heirs in the direct line and collaterals up to 5th civil degree
-Caduciary rights: refer to the right of the estate to claim thru escheat proceedings the
properties of decedents who are not survived by any heirs.
-Escheat Proceedings: Process by which state acquires. Rule 91 of the Rules of Court

WHAT ARE THE REQUISITES FOR ACCRETION?

1. unity of object (one inheritance)
2. plurality of subjects (two or more to inherit ordinarily)
3. vacant portion
4. acceptance (of portion accruing- by the person entitled)

 Before there can be accretion, observe the following rule (ISRAI):

1. Institution
2. Substitution
3. Representation
4. Accretion
5. Intestacy
- Accretion occurs both in Testamentary and Legal Succession

WHAT IS THE RIGHT OF REPRESENTATION?

 Representation is a right created by fiction of law, by virtue of which the
representative is raised to the place and the degree of the person represented,
and acquires the rights which the latter would have if he were living or if he could
have inherited.
 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 (nephews and nieces), whether they be of the full or half blood.

 When children of one or more brothers or sisters of the deceased survive, they
shall inherit from the latter by representation (per stirpes), if they survive with their
uncles or aunts. But if they alone survive, they shall inherit in equal portions (per
capita).

39
 In case of grandchildren of the decedent, they always inherit by right of
representation (per stirpes) even if all the children of the decedent are deceased.

 Heirs who repudiate their share may not be represented.

C repudiates

 Can an adopted child represent? No.

WHAT LAW GOVERNS CAPACITY TO SUCCEED?

 Capacity to succeed is governed by the law of the nation of the decedent. (Art.
1039)
 So in addition to Article 16, the following are governed by the national law of
decedent
a. order of succession
b. amount of successional rights
c. intrinsic validity of testamentary provision
d. capacity to succeed

3 classes of relative incapacity:

1. by reason of possible undue influence (Art. 1027 [1-5])
2. by reason of public policy and morality (Art. 1028)
3. by reason of unworthiness (Art. 1032)

 Condonation (applicable to incapacity by reason of unworthiness):

1. If the testator already knew the cause of unworthiness at the time of will-making,
the mere fact of institution or giving legacy or devise is an IMPLIED
CONDONATION
- knowledge at time of will making is not enough. Testator must give something in
the will to the disqualified heir in order that there may be condonation
- the will made must be valid or not revoked in order that there may be implied
condonation

2. If knowledge comes only after execution of will, condonation must be in writing –

EXPRESS CONDONATION

- express condonaton is irrevocable unless there is vitiated consent

 What if there is subsequent reconciliation? Under Art. 922, reconciliation renders

disinheritance ineffective. How about the incapacity? Should there still be
condonation in writing? NO. When cause for unworthiness is made the ground for
disinheritance, Art. 922 applies. Reconciliation is enough. When there is no
disinheritance, Art. 1033 applies

 In Testamentary succession, the incapacitated child or descendant can still be
represented with respect to the legitime

40
 In Legal Succession, the right of representation covers the entire intestate share
of the incapacitated heir
 like in disinheritance, the excluded person shall not enjoy the usufruct and
administration of the inherited property of his/her children

HOW IS ACCEPTANCE MADE?

(A) Express Acceptance – must be in a public or private document. Cannot be verbal

(art. 1049)

(B) Tacit – results from acts by which the intention to accept is necessarily implied, or
which one would have no right to do except in the capacity of an heir. (art. 1049)

Example of Tacit Acceptance:

ARTICLE 1050. An inheritance is deemed accepted:
(1) If the heirs sells, donates, or assigns his right to a stranger, or to his co-heirs,
or to any of them;
(2) If the heir renounces the same, even though gratuitously, for the benefit of one
or more of his co-heirs (not all); - hence, renunciation may be onerous or gratuitous.
An act of disposition because one or more of the co-heirs acquire a benefit or
advantage which would nit have accrued to them in case of true renunciation.
(3) If he renounces it for a price in favor of all his co-heirs indiscriminately; but if
this renunciation should be gratuitous, and the co-heirs in whose favor it is made are
those upon whom the portion renounced should devolve by virtue of accretion, the
inheritance shall not be deemed as accepted. –
“co-heirs” – meaning, in intestacy, substitution or accretion
-if gratuitous, renunciation must not be made in favor of the ones who will inherit by
accretion (or substitution) of the portion renounced.

(C) Presumed – If heir, devisee or legatee does not accept or repudiate within 30 days
after the court has issued an order for the distribution of the estate (Art. 1057)

BUT: Acts of mere conservation or provisional administration do not constitute

acceptance (Art. 1049, last paragraph: Acts of mere preservation or provisional
administration do not imply an acceptance of the inheritance if, through such acts, the
title or capacity of an heir has not been assumed.)

HOW IS REPUDIATION MADE? (Art. 1051)

1. public or authentic instrument
*public document – acknowledged before notary public or person authorized to
administer oath
*authentic document – genuine document, not forged or falsified. May be private.
2. by petition presented to the court having jurisdiction over the testamentary or
intestate proceedings.

Note: There is no such thing as implied repudiation

Imperial vs. CA, [G.R. No. 112483. October 8, 1999.

Leoncio sold his land to his natural son, petitioner but it was alleged that the sale was
in fact a donation. 2 years after the donation, Leoncio filed a complaint for annulment
of the said Deed of Absolute Sale on the ground that he was deceived into signing the
said document. The dispute, however, was resolved through a compromise
agreement. Pending execution of the above judgment, Leoncio died, leaving only two
heirs —his natural son, and an adopted son, Victor Imperial. In 1962, Victor was
substituted in place of Leoncio in the above-mentioned case, and it was he who moved
for execution of judgment. Fifteen years thereafter, Victor died single and without
issue, survived only by his natural father, Ricardo. Four years after, Ricardo died,

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leaving as his only heirs his two children, Cesar and Teresa. Cesar and Teresa filed
a complaint for "Annulment of Documents, Reconveyance and Recovery of
Possession" seeking the nullification of the Deed of Absolute Sale alleging that the
conveyance of said property impaired the legitime of Victor Imperial, their natural
brother and predecessor-in-interest. As argued by petitioner, when Leoncio died, it
was only Victor who was entitled to question the donation. However, instead of filing
an action to contest the donation, Victor asked to be substituted as plaintiff in Civil
Case No. 1177 and even moved for execution of the compromise judgment therein.
Thus, Victor was deemed to have renounced his legitime.

HELD: No renunciation of legitime may be presumed from the foregoing acts. It must
be remembered that at the time of the substitution, the judgment approving the
compromise agreement has already been rendered. Victor merely participated in the
execution of the compromise judgment. He was not a party to the compromise
agreement. More importantly, our law on succession does not countenance tacit
repudiation of inheritance. Rather, it requires an express act on the part of the heir.
Thus, when Victor substituted Leoncio in Civil Case No. 1177 upon the latter’s death,
his act of moving for execution of the compromise judgment cannot be considered an
act of renunciation of his legitime. He was, therefore, not precluded or estopped from
subsequently seeking the reduction of the donation, under Article 772. Nor are Victor’s
heirs, upon his death, precluded from doing so, as their right to do so is expressly
recognized under Article 772, and also in Article 1053:
If the heir should die without having accepted or repudiated the inheritance, his right
shall be transmitted to his heirs.
The ten-year prescriptive period applies to the obligation to reduce inofficious
donations, required under Article 771 of the Civil Code, to the extent that they impair
the legitime of compulsory heirs. The cause of action to enforce a legitime accrues
upon the death of the donor-decedent. Clearly so, since it is only then that the net
estate may be ascertained and on which basis, the legitimes may be determined.

COLLATION
ARELLANO vs. PASCUAL (G.R. No. 189776, December 15, 2010)

Angel N. Pascual Jr. died intestate on January 2, 1999 leaving as heirs his siblings,
namely: petitioner Amelia P. Arellano who is represented by her daughters Agnes P.
Arellano and Nona P. Arellano, and respondents Francisco Pascual and Miguel N.
Pascual. During his lifetime, Angel donated to Amelia a parcel of land (the donated
property) located in Teresa Village, Makati. In a petition for "Judicial Settlement of
Intestate Estate and Issuance of Letters of Administration," filed by respondents on
April 28, 2000, respondents alleged, inter alia, that the donated property located in
Teresa Village, Makati, which was, by Deed of Donation, transferred by the decedent
to petitioner the validity of which donation respondents assailed, "may be considered
as an advance legitime" of petitioner. Provisionally passing, however, upon the
question of title to the donated property only for the purpose of determining whether it
formed part of the decedent's estate, the probate court found the Deed of Donation
valid in light of the presumption of validity of notarized documents.

RULING:
Collation takes place when there are compulsory heirs, one of its purposes being to
determine the legitime and the free portion. If there is no compulsory heir, there is no
legitime to be safeguarded. The records do not show that the decedent left any
primary, secondary, or concurring compulsory heirs. He was only survived by his
siblings, who are his collateral relatives and, therefore, are not entitled to any legitime
– that part of the testator’s property which he cannot dispose of because the law has
reserved it for compulsory heirs.

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The decedent not having left any compulsory heir who is entitled to any legitime, he
was at liberty to donate all his properties, even if nothing was left for his siblings-
collateral relatives to inherit. His donation to petitioner, assuming that it was valid, is
deemed as donation made to a “stranger,” chargeable against the free portion of the
estate. There being no compulsory heir, however, the donated property is not subject
to collation.
On the second issue:
The decedent’s remaining estate should thus be partitioned equally among his
heirs-siblings-collateral relatives, herein petitioner and respondents, pursuant to the
provisions of the Civil Code, viz:
Art. 1003. If there are no descendants, ascendants, illegitimate
children, or a surviving spouse, the collateral relatives shall succeed to
the entire estate of the deceased in accordance with the following
articles. (underscoring supplied)

Art. 1004. Should the only survivors be brothers and sisters of

the full blood, they shall inherit in equal shares. (emphasis and
underscoring supplied)

DONATIONS TO STRANGERS ARE SUBJECT TO COLLATION

Case:
Vda. De Tupas, vs. RTC of Negros Occidental (October 3, 1986)
Tupas Foundation, Inc. being a stranger and not a compulsory heir, the donation inter
vivos made in its favor was not subject to collation.

HELD: A person's prerogative to make donations is subject to certain limitations, one

of which is that he cannot give by donation more than he can give by will. If he does,
so much of what is donated as exceeds what he can give by will is deemed inofficious
and the donation is reducible to the extent of such excess, though without prejudice
to its taking effect in the donor's lifetime or the donee's appropriating the fruits of the
thing donated. Such a donation is, moreover, collationable, that is, its value is in
imputable into the hereditary estate of the donor at the time of his death for the
purpose of determining the legitime of the forced or compulsory heirs and the freely
disposable portion of the estate. This is true as well of donations to strangers as of
gifts to compulsory heirs, although the language of Article 1061 of the Civil Code would
seem to limit collation to the latter class of donations. `Collationable gifts' should
include gifts made not only in favor of the forced heirs, but even those made in favor
of strangers, so that in computing the legitimes, the value of the property donated
should be considered part of the donor's estate.

The fact that the donated property no longer actually formed part of the estate of the
donor at the time of his death cannot be asserted to prevent its being brought to
collation. Collation contemplates and particularly applies to gifts inter vivos. The
further fact that the lots donated were admittedly capital or separate property of the
donor is of no moment, because a claim of inofficiousness does not assert that the
donor gave what was not his, but that he gave more than what was within his power
to give. In order to find out whether a donation is inofficious or not, the rules are:
(1) determination of the value of the property which remains at the time of the
testator's death;
(2) determination of the obligations, debts, and charges which have to be paid out
or deducted from the value of the property thus left;
(3) the determination of the difference between the assets and the liabilities, giving
rise to the hereditary estate;
(4) the addition to the net value thus found, of the value, at the time they were
made, of donations subject to collation; and

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(5) the determination of the amount of the legitimes by getting from the total thus
found the portion that the law provides as the legitime of each respective compulsory
heir.
Deducting the legitimes from the net value of the hereditary estate leaves the freely
disposable portion by which the donation in question here must be measured. If the
value of the donation at the time it was made does not exceed that difference, then it
must be allowed to stand. But if it does, the donation is inofficious as to the excess
and must be reduced by the amount of said excess. In this case, if any excess be
shown, it shall be returned or reverted to the sole compulsory heir of the deceased
Epifanio R. Tupas.

AN IRREVOCABLE DONATION IS SUBJECT TO COLLATION

Case:
Buhay De Roma vs. CA (July 23, 1987)
There is nothing in the above provisions expressly prohibiting the collation of the
donated properties. As the said court correctly observed, the phrase "sa pamamagitan
ng pagbibigay na di na mababawing muli" merely described the donation as
"irrevocable" and should not be construed as an express prohibition against collation.
The fact that a donation is irrevocable does not necessarily exempt the subject thereof
from the collation required under Article 1061. The intention to exempt from collation
should be expressed plainly and unequivocally as an exception to the general rule
announced in Article 1062. The suggestion that there was an implied prohibition
because the properties donated were imputable to the free portion of the decedent's
estate merits little consideration. Imputation is not the question here, nor is it claimed
that the disputed donation is officious. The sole issue is whether or not there was an
express prohibition to collate, and there was none.

PARTITION CAN BE MADE DURING THE LIFETIME OF THE DECEDENT

J.L.T. AGRO, INC. vs. BALANSAG (G.R. No. 141882, March 11, 2005)
The present controversy involves a parcel of land covering 954 square meters,
known as Lot No. 63, which was originally registered in the name of the conjugal
partnership of Don Julian and Antonia under Original Certificate of Title (OCT) No.
5203. When Antonia died, the land was among the properties involved in an action
for partition and damages docketed as Civil Case No. 3443 entitled "Josefa Teves
Escaño v. Julian Teves, Emilio B. Teves, et al." Milagros Donio, the second wife
of Don Julian, participated as an intervenor. Thereafter, the parties to the case
entered into a Compromise Agreement which embodied the partition of all the
properties of Don Julian. On the basis of the compromise agreement and
approving the same, the Regional Trial Court (RTC) declared a tract of land known
as Hacienda Medalla Milagrosa as property owned in common by Don Julian and
his two (2) children of the first marriage. The property was to remain undivided
during the lifetime of Don Julian. Josefa and Emilio likewise were given other
properties at Bais, including the electric plant, the "movie property," the commercial
areas, and the house where Don Julian was living. The remainder of the properties
was retained by Don Julian, including Lot No. 63.

On 16 November 1972, Don Julian, Emilio and Josefa executed a Deed of

Assignment of Assets with Assumption of Liabilities in favor of J.L.T. Agro, Inc.
(JLT). Less than a year later, Don Julian, Josefa and Emilio also executed an
instrument entitled Supplemental to the Deed of Assignment of Assets with the
Assumption of Liabilities (Supplemental Deed) dated 31 July 1973. This instrument
which constitutes a supplement to the earlier deed of assignment transferred
ownership over Lot No. 63, among other properties, in favor of JLT. On 14 April
1974, Don Julian died intestate. On the strength of the Supplemental Deed in its
favor, JLT caused the registration of the subject lot in its name on 12 November

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1979, and on the same date TCT No. T-375 was issued in the name of JLT. Since
then, JLT has been paying taxes assessed on the subject lot.

Meanwhile, Milagros Donio and her children had immediately taken possession
over the subject lot after the execution of the Compromise Agreement.
Subsequently, Milagros Donio and her children executed a Deed of Extrajudicial
Partition of Real Estate dated 18 March 1980. In the deed of partition, Lot No. 63
was allotted to Milagros Donio and her two (2) children, Maria Evelyn and Jose
Catalino. Unaware that the subject lot was already registered in the name of JLT
in 1979, spouses Antonio Balansag and Hilaria Cadayday bought Lot No. 63 from
Milagros Donio as evidenced by the Deed of Absolute Sale of Real Estate dated 9
November 1983. At the Register of Deeds while trying to register the deed of
absolute sale, spouses Antonio Balansag and Hilaria Cadayday discovered that
the lot was already titled in the name of JLT. Thus, they failed to register the deed.
Consequently, as vendees of Lot No. 63, spouses Antonio Balansag and Hilaria
Cadayday filed a complaint before the RTC, seeking the declaration of nullity and
cancellation of TCT No. T-375 in the name of JLT and the transfer of the title to Lot
No. 63 in their names, plus damages. According to the spouses, in the
Compromise Agreement, the future legitimes were determined, adjudicated and
reserved prior to the death of Don Julian; that Don Julian had no right to dispose
of or assign Lot No. 63 to JLT because he reserved the same for his heirs from the
second marriage pursuant to the Compromise Agreement; and that the
Supplemental Deed was tantamount to a preterition of his heirs from the second
marriage.

RULING:
Being the key adjudicative provision, paragraph 13 of the Compromise Agreement
has to be quoted again:
13. That in the event of death of Julian L. Teves, the properties herein adjudicated
to Josefa Teves Escaño and Emilio B. Teves, (excluding the properties comprised as
Hacienda Medalla Milagrosa together with all its accessories and accessions) shall be
understood as including not only their one-half share which they inherited from their
mother but also the legitimes and other successional rights which would correspond
to them of the other half belonging to their father, Julian L.Teves. In other words,
the properties now selected and adjudicated to Julian L. Teves (not including
his share in the Hacienda Medalla Milagrosa) shall exclusively be adjudicated
to the wife in second marriage of Julian L. Teves and his four minor children,
namely, Milagros Donio Teves, his two acknowledged natural children Milagros
Reyes Teves and Pedro Reyes Teves and his two legitimated children Maria
Evelyn Donio Teves and Jose Catalino Donio Teves.” (Emphasis supplied)
Petitioner argues that the appellate court erred in holding that future legitime can be
determined, adjudicated and reserved prior to the death of Don Julian. The Court
agrees. Our declaration in Blas v. Santos is relevant, where we defined future
inheritance as any property or right not in existence or capable of determination at
the time of the contract, that a person may in the future acquire by succession.
Well-entrenched is the rule that all things, even future ones, which are not outside the
commerce of man may be the object of a contract. The exception is that no contract
may be entered into with respect to future inheritance, and the exception to the
exception is the partition inter vivos referred to in Article 1080.
For the inheritance to be considered “future,” the succession must not have been
opened at the time of the contract. A contract may be classified as a contract upon
future inheritance, prohibited under the second paragraph of Article 1347, where the
following requisites concur:
(1) That the succession has not yet been opened;

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(2) That the object of the contract forms part of the inheritance; and
(3) That the promissor has, with respect to the object, an expectancy of a right
which is purely hereditary in nature.
The first paragraph of Article 1080, which provides the exception to the exception and
therefore aligns with the general rule on future things, reads:
ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by
will, such partition shall be respected, insofar as it does not prejudice the legitime of
the compulsory heirs.
In interpreting this provision, Justice Edgardo Paras advanced the opinion that if the
partition is made by an act inter vivos, no formalities are prescribed by the Article. The
partition will of course be effective only after death. It does not necessarily require
the formalities of a will for after all it is not the partition that is the mode of acquiring
ownership. Neither will the formalities of a donation be required since donation will
not be the mode of acquiring the ownership here after death; since no will has been
made it follows that the mode will be succession (intestate succession). Besides, the
partition here is merely the physical determination of the part to be given to each heir.
Article 1056 of the old Civil Code (now Article 1080) authorizes a testator to partition
inter vivos his property, and distribute them among his heirs, and this partition is
neither a donation nor a testament, but an instrument of a special character, sui
generis, which is revocable at any time by the causante during his lifetime, and
does not operate as a conveyance of title until his death. It derives its binding
force on the heirs from the respect due to the will of the owner of the property, limited
only by his creditors and the intangibility of the legitime of the forced heirs.
The partition inter vivos of the properties of Don Julian is undoubtedly valid pursuant
to Article 1347. However, considering that it would become legally operative only upon
the death of Don Julian, the right of his heirs from the second marriage to the
properties adjudicated to him under the compromise agreement was but a mere
expectancy. It was a bare hope of succession to the property of their father. Being the
prospect of a future acquisition, the interest by its nature was inchoate. It had no
attribute of property, and the interest to which it related was at the time nonexistent
and might never exist.
Evidently, at the time of the execution of the deed of assignment covering Lot No. 63
in favor of petitioner, Don Julian remained the owner of the property since ownership
over the subject lot would only pass to his heirs from the second marriage at the time
of his death. Thus, as the owner of the subject lot, Don Julian retained the absolute
right to dispose of it during his lifetime. His right cannot be challenged by Milagros
Donio and her children on the ground that it had already been adjudicated to them by
virtue of the compromise agreement.
Emerging as the crucial question in this case is whether Don Julian had validly
transferred ownership of the subject lot during his lifetime. The lower court ruled that
he had done so through the Supplemental Deed. The appellate court disagreed,
holding that the Supplemental Deed is not valid, containing as it does a prohibited
preterition of Don Julian’s heirs from the second marriage. Petitioner contends that
the ruling of the Court of Appeals is erroneous. The contention is well-founded.
Article 854 provides that 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. Manresa
defines preterition as the omission of the heir in the will, either by not naming him at
all or, while mentioning him as father, son, etc., by not instituting him as heir without
disinheriting him expressly, nor assigning to him some part of the properties. It is the
total omission of a compulsory heir in the direct line from inheritance. It consists in
the silence of the testator with regard to a compulsory heir, omitting him in the
testament, either by not mentioning him at all, or by not giving him anything in the

46
hereditary property but without expressly disinheriting him, even if he is mentioned in
the will in the latter case. But there is no preterition where the testator allotted to a
descendant a share less than the legitime, since there was no total omission of a
forced heir.
In the case at bar, Don Julian did not execute a will since what he resorted to was a
partition inter vivos of his properties, as evidenced by the court approved Compromise
Agreement. Thus, it is premature if not irrelevant to speak of preterition prior to the
death of Don Julian in the absence of a will depriving a legal heir of his
legitime. Besides, there are other properties which the heirs from the second marriage
could inherit from Don Julian upon his death. A couple of provisions in the
Compromise Agreement are indicative of Don Julian’s desire along this line. Hence,
the total omission from inheritance of Don Julian’s heirs from the second marriage, a
requirement for preterition to exist, is hardly imaginable as it is unfounded.

WHAT ARE THE REQUISITES FOR AN EXTRAJUDICIAL PARTITION?

Case:
Heirs of Joaquin Teves vs. CA (316 SCRA 632)
The extrajudicial settlements executed by the heirs of Joaquin Teves and Marcelina
Cimafranca are legally valid and binding. The extrajudicial settlement of a decedent’s
estate is authorized by section 1 of Rule 74 of the Rules of Court. For a partition
pursuant to section 1 of Rule 74 to be valid, the following conditions must concur: (1)
the decedent left no will; (2) the decedent left no debts, or if there were debts left, all
had been paid; (3) the heirs are all of age, or if they are minors, the latter are
represented by their judicial guardian or legal representatives; (4) the partition was
made by means of a public instrument or affidavit duly filed with the Register of Deeds.
Although Cresenciano, Ricardo’s predecessor-in-interest, was not a signatory to the
extrajudicial settlements, the partition of Lot 769-A among the heirs was made in
accordance with their intestate shares under the law. The extrajudicial settlements
covering Lot 769-A were never registered. However, in the case of Vda. de Reyes vs.
CA, 35 the Court, interpreting section 1 of Rule 74 of the Rules of Court, upheld the
validity of an oral partition of the decedent’s estate and declared that the non-
registration of an extrajudicial settlement does not affect its intrinsic validity when there
are no creditors or the rights of creditors are not affected.

IS AN ORAL PARTITION VALID?

Cases:
Pada-Kilario vs. CA (G.R. No. 134329, January 19, 2000)
The extrajudicial partition of the estate of Jacinto Pada among his heirs made in 1951
is valid, albeit executed in an unregistered private document. No law requires partition
among heirs to be in writing and be registered in order to be valid. The requirement in
Sec. 1, Rule 74 of the Revised Rules of Court that a partition be put in a public
document and registered, has for its purpose the protection of creditors and the heirs
themselves against tardy claims. The object of registration is to serve as constructive
notice to others. It follows then that the intrinsic validity of partition not executed with
the prescribed formalities is not undermined when no creditors are involved. Without
creditors to take into consideration, it is competent for the heirs of an estate to enter
into an agreement for distribution thereof in a manner and upon a plan different from
those provided by the rules from which, in the first place, nothing can be inferred that
a writing or other formality is essential for the partition to be valid. The partition of
inherited property need not be embodied in a public document so as to be effective
as regards the heirs that participated therein. The requirement of Article 1358 of the
Civil Code that acts which have for their object the creation, transmission, modification
or extinguishment of real rights over immovable property, must appear in a public
instrument, is only for convenience, non-compliance with which does not affect the
validity or enforceability of the acts of the parties as among themselves.

47
And neither does the Statute of Frauds under Article 1403 of the New Civil Code apply
because partition among heirs is not legally deemed a conveyance of real property,
considering that it involves not a transfer of property from one to the other but rather,
a confirmation or ratification of title or right of property that an heir is renouncing in
favor of another heir who accepts and receives the inheritance.

Crucillo vs. IAC (317 SCRA 351)

It can be gleaned unerringly that the heirs of Balbino A. Crucillo agreed to orally
partition subject estate among themselves, as evinced by their possession of the
inherited premises, their construction of improvements thereon, and their having
declared in their names for taxation purposes their respective shares. These are
indications that the heirs of Balbino A. Crucillo agreed to divide subject estate among
themselves, for why should they construct improvements thereon, pay the taxes
therefor, and exercise other acts of ownership, if they did not firmly believe that the
property was theirs. It is certainly foolhardy for petitioners to claim that no oral partition
was made when their acts showed otherwise. Moreover, it is unbelievable that the
possession of the heirs was by mere tolerance, judging from the introduction of
improvements thereon and the length of time that such improvements have been in
existence. Then too, after exercising acts of ownership over their respective portions
of the contested estate, petitioners are stopped from denying or contesting the
existence of an oral partition. The oral agreement for the partition of the property
owned in common is valid, binding and enforceable on the parties.

WHEN CAN PARTITION BE DEMANDED?

Case:
Santos vs. Santos (October 12, 2000)
Prescription, as a mode of terminating a relation of co-ownership, must have been
preceded by repudiation (of the co-ownership). The act of repudiation, in turn, is
subject to certain conditions: (1) a co-owner repudiates the co-ownership; (2) such an
act of repudiation is clearly made known to the other co-owners; (3) the evidence
thereon is clear and conclusive; and (4) he has been in possession through open,
continuous, exclusive, and notorious possession of the property for the period required
by law."
There was no showing that Eliseo Santos had complied with these requisites. The SC
was not convinced that Eliseo had repudiated the co-ownership, and even if he did,
there was no showing that the same had been clearly made known to Ladislao. Under
Article 1119 of the New Civil Code, acts of possessory character executed in virtue of
license or tolerance of the owners shall not be available for the purposes of
possession.
Indeed, Filipino family ties being close and well-knit as they are, and considering that
Virgilio Santos was the ward of Isidra Santos ever since when Virgilio Santos was still
an infant, it was but natural that the Appellant did not interpose any objection to the
continued stay of Virgilio Santos and his family on the property and even acquiesced
thereto. Appellant must have assumed too, that his brother, the Appellee Eliseo
Santos, allowed his son to occupy the property and use the same for the time being.
Hence, such possession by Virgilio Santos and Philip Santos of the property did not
constitute a repudiation of the co-ownership by the Appellee Eliseo Santos and of his
privies for that matter. Penultimately, the action for partition is not barred by laches.
An action to demand partition is imprescriptible or cannot be barred by laches. Each
co-owner may demand at any time the partition of the common property.

BALUS vs. BALUS (G.R. No. 168970, January 15, 2010)

Herein petitioner and respondents are the children of the spouses Rufo and
Sebastiana Balus. Sebastiana died on September 6, 1978, while Rufo died on July 6,
1984. On January 3, 1979, Rufo mortgaged a parcel of land, which he owns, as
security for a loan he obtained from the Rural Bank of Maigo, Lanao del Norte (Bank).

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The said property was originally covered by Original Certificate of Title No. P-
439(788). Rufo failed to pay his loan so the mortgaged property was foreclosed and
was subsequently sold to the Bank as the sole bidder at a public auction. On
November 20, 1981, a Certificate of Sale was executed by the sheriff in favor of the
Bank. The property was not redeemed within the period allowed by law. More than
two years after the auction, or on January 25, 1984, the sheriff executed a Definite
Deed of Sale in the Bank's favor. Thereafter, a new title was issued in the name of the
Bank. On October 10, 1989, herein petitioner and respondents executed an
Extrajudicial Settlement of Estate adjudicating to each of them a specific one-third
portion of the subject property consisting of 10,246 square meters. The Extrajudicial
Settlement also contained provisions wherein the parties admitted knowledge of the
fact that their father mortgaged the subject property to the Bank and that they intended
to redeem the same at the soonest possible time. Three years after the execution of
the Extrajudicial Settlement, herein respondents bought the subject property from the
Bank. On October 12, 1992, a Deed of Sale of Registered Land was executed by the
Bank in favor of respondents. Subsequently, Transfer Certificate of Title (TCT) No. T-
39,484 was issued in the name of respondents. Meanwhile, petitioner continued
possession of the subject lot. On June 27, 1995, respondents filed a Complaint for
Recovery of Possession and Damages against petitioner, contending that they had
already informed petitioner of the fact that they were the new owners of the disputed
property, but the petitioner still refused to surrender possession of the same to them.
Petitioner insists that despite respondents' full knowledge of the fact that the title over
the disputed property was already in the name of the Bank, they still proceeded to
execute the subject Extrajudicial Settlement, having in mind the intention of
purchasing back the property together with petitioner and of continuing their co-
ownership thereof. Petitioner posits that the subject Extrajudicial Settlement is, in and
by itself, a contract between him and respondents, because it contains a provision
whereby the parties agreed to continue their co-ownership of the subject property by
“redeeming” or “repurchasing” the same from the Bank. This agreement, petitioner
contends, is the law between the parties and, as such, binds the respondents. As a
result, petitioner asserts that respondents' act of buying the disputed property from
the Bank without notifying him inures to his benefit as to give him the right to claim his
rightful portion of the property, comprising 1/3 thereof, by reimbursing respondents the
equivalent 1/3 of the sum they paid to the Bank.
RULING:
Petitioner and respondents are arguing on the wrong premise that, at the time of the
execution of the Extrajudicial Settlement, the subject property formed part of the estate
of their deceased father to which they may lay claim as his heirs. The rights to a
person's succession are transmitted from the moment of his death. In addition, the
inheritance of a person consists of the property and transmissible rights and
obligations existing at the time of his death, as well as those which have accrued
thereto since the opening of the succession. In the present case, since Rufo lost
ownership of the subject property during his lifetime, it only follows that at the time of
his death, the disputed parcel of land no longer formed part of his estate to which his
heirs may lay claim. Stated differently, petitioner and respondents never inherited the
subject lot from their father.
Petitioner and respondents, therefore, were wrong in assuming that they became co-
owners of the subject lot. Thus, any issue arising from the supposed right of petitioner
as co-owner of the contested parcel of land is negated by the fact that, in the eyes of
the law, the disputed lot did not pass into the hands of petitioner and respondents as
compulsory heirs of Rufo at any given point in time.
On the contrary, a plain reading of the provisions of the Extrajudicial Settlement would
not, in any way, support petitioner's contention that it was his and his sibling's intention
to buy the subject property from the Bank and continue what they believed to be co-
ownership thereof. It is a cardinal rule in the interpretation of contracts that the
intention of the parties shall be accorded primordial consideration. It is the duty of the
courts to place a practical and realistic construction upon it, giving due consideration

49
to the context in which it is negotiated and the purpose which it is intended to serve.
Such intention is determined from the express terms of their agreement, as well as
their contemporaneous and subsequent acts. Absurd and illogical interpretations
should also be avoided.
For petitioner to claim that the Extrajudicial Settlement is an agreement between him
and his siblings to continue what they thought was their ownership of the subject
property, even after the same had been bought by the Bank, is stretching the
interpretation of the said Extrajudicial Settlement too far.
In the first place, as earlier discussed, there is no co-ownership to talk about and no
property to partition, as the disputed lot never formed part of the estate of their
deceased father. Furthermore, petitioner's contention that he and his siblings
intended to continue their supposed co-ownership of the subject property contradicts
the provisions of the subject Extrajudicial Settlement where they clearly manifested
their intention of having the subject property divided or partitioned by assigning to each
of the petitioner and respondents a specific 1/3 portion of the same. Partition calls for
the segregation and conveyance of a determinate portion of the property owned in
common. It seeks a severance of the individual interests of each co-owner, vesting in
each of them a sole estate in a specific property and giving each one a right to enjoy
his estate without supervision or interference from the other. In other words, the
purpose of partition is to put an end to co-ownership, an objective which negates
petitioner's claims in the present case.

PROHIBITION TO PARTITION (Art. 1083)

IN RE: PETITION FOR PROBATE OF LAST WILL AND TESTAMENT OF BASILIO
SANTIAGO (G.R. No. 179859, August 9, 2010)

Basilio Santiago (Basilio) contracted three marriages-the first to Bibiana Lopez, the
second to Irene Santiago, and the third to Cecilia Lomotan. Basilio and his first wife
bore two offsprings, Irene and Marta, the mother of herein oppositors Felimon,
Leonila, Consolacion, Ananias, Urbano, and Gertrudes, all surnamed Soco. Basilio
and his second wife had six offsprings, Tomas, Cipriano, Ricardo, respondents Zoilo
and Felicidad, and petitioner Ma. Pilar, all surnamed Santiago. Basilio and his third
wife bore three children, Eugenia herein petitioner Clemente, and Cleotilde, all
surnamed Santiago. After Basilio died testate on September 16, 1973, his daughter
by the second marriage petitioner Ma. Pilar filed a petition for the probate of Basilio's
will. The will was admitted to probate by Branch 10 of the RTC and Ma. Pilar was
appointed executrix.

The will contained the following provisions, among others:

"Xxx

e) Ang lupa't bahay sa Lunsod ng Maynila na nasasaysay sa

itaas na 2(c) na nasailalim ng TCT No. 131044 ay ililipat at
ilalagay sa pangalan nila Ma. Pilar at Clemente hindi bilang
pamana ko sa kanila kundi upang pamahalaan at pangalagaan
lamang nila at nang ang sinoman sa aking mga anak sampu
ng apo at kaapuapuhan ko sa habang panahon ay may
tutuluyan kung magnanais na mag-aral sa Maynila o kalapit na
mga lunsod x x x."

After the executrix-petitioner Ma. Pilar filed a "Final Accounting, Partition and
Distribution in Accordance with the Will," the probate court approved the will by Order
of August 14, 1978 and directed the registers of deeds of Bulacan and Manila to
register the certificates of title indicated therein. Accordingly, the titles to Lot Nos. 786,

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837, 7922, 836 and 838 in Malolos, Bulacan and Lot No. 8-C in Manila were
transferred in the name of petitioners Ma. Pilar and Clemente.

On October 17, 2000, respondent-heirs of the second marriage filed before the
probate court a Motion for Termination of Administration, for Accounting, and for
Transfer of Titles in the Names of all the heirs citing that the administration of Ma. Pilar
Santiago and Clemente Santiago over the house and lot in Manila expired on
September 16, 1993. Consequently, Ma. Pilar Santiago and Clemente Santiago
should have ceased as such administrators way back on September 16, 1993 and
they should have transferred the above said titles to all the heirs of the decedent.
Opposing the motion, petitioners Ma. Pilar and Clemente argued that with the approval
of the Final Accounting, Partition and Distribution in Accordance with the Will, and with
the subsequent issuance of certificates of title covering the properties involved, the
case had long since been closed and terminated. The petitioners objected to the
inclusion of the house and lot in Manila, covered by TCT No. 131044, among those to
be transferred to the heirs as it would contravene the testator's intent that no one is to
own the same.

RULING:

Petitioners object to the inclusion of the house and lot in Manila, covered by TCT No.
131044, among those to be transferred to the legatees-heirs as it would contravene
the testator’s intent that no one is to own the same. The Court is not persuaded. It is
clear from Basilio’s will that he intended the house and lot in Manila to be transferred
in petitioners’ names for administration purposes only, and that the property be owned
by the heirs in common. But the condition set by the decedent on the property’s
indivisibility is subject to a statutory limitation. On this point, the Court agrees with the
ruling of the appellate court, viz:

For this Court to sustain without qualification, [petitioners]’s

contention, is to go against the provisions of law, particularly Articles
494, 870, and 1083 of the Civil Code, which provide that the
prohibition to divide a property in a co-ownership can only last
for twenty (20) years x x x x

xxxx

x x x x Although the Civil Code is silent as to the effect of the

indivision of a property for more than twenty years, it would be
contrary to public policy to sanction co-ownership beyond the period
expressly mandated by the Civil Code x x x x

WHAT IS THE EFFECT OF PRETERITION IN THE PARTITION?

NON VS. CA (325 SCRA 652)

The exclusion of petitioner Delia Viado, alleged to be a retardate, from the deed of
extrajudicial settlement verily has had the effect of preterition. This kind of preterition,
however, in the absence of proof of fraud and bad faith, does not justify a collateral
attack on Transfer Certificate of Title No. 373646. The relief instead rests on Article
1104 of the Civil Code to the effect that where the preterition is not attended by bad
faith and fraud, the partition shall not be rescinded but the preterited heir shall be paid
the value of the share pertaining to her. The appellate court had thus acted properly
in ordering the remand of the case for further proceedings to make the proper
valuation of the Isarog property and ascertainment of the amount due petitioner Delia
Viado.

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REILLO, ET AL. vs. HEIRS OF QUITERIO SAN JOSE AND ANTONINA ESPIRITU
SANTO (G.R. No. 166393, June 18, 2009)

When petitioners admitted that respondents Galicano, Victoria, Catalina and Maribeth
are the children and grandchild, respectively, of the spouses Quiterio and Antonina,
they impliedly admitted that they are not the sole heirs of Quiterio and Antonina. Under
the rules, no extrajudicial settlement shall be binding upon any person who has not
participated therein or had no notice thereof. The respondents were not notified since
the petitioners misrepresented themselves as legitimate descendants and sole heirs
of the deceased spouses Quiterio and Antonina in the Deed of Extrajudicial
Settlement. As such, it is only proper for the court to annul the Deed of Extrajudicial
Settlement.

WHAT IS THE EFFECT OF INCLUSION OF A NON-HEIR IN THE PARTITION?

AZNAR BROTHERS REALTY COMPANY VS. CA (MARCH 7, 2000)

In the instant case, private respondents have set up the defense of ownership and
questioned the title of AZNAR to the subject lot, alleging that the Extrajudicial Partition
with Deed of Absolute Sale upon which petitioner bases its title is null and void for
being simulated and fraudulently made.
First, private respondents claim that not all the known heirs of Crisanta Maloloy-on
participated in the extrajudicial partition, and that two persons who participated and
were made parties thereto were not heirs of Crisanta. This claim, even if true, would
not warrant rescission of the deed. Under Article 1104 of the Civil Code, "[a] partition
made with preterition of any of the compulsory heirs shall not be rescinded, unless it
be proved that there was bad faith or fraud on the part of the persons interested; but
the latter shall be proportionately obliged to pay to the person omitted the share which
belongs to him." In the present case, no evidence of bad faith or fraud is extant from
the records. As to the two parties to the deed who were allegedly not heirs, Article
1105 is in point; it provides: "A partition which includes a person believed to be an
heir, but who is not, shall be void only with respect to such person.” In other words,
the participation of non-heirs does not render the partition void in its entirety but only
to the extent corresponding to them. The Extrajudicial Partition with Deed of Absolute
Sale is a notarized document. As such, it has in its favor the presumption of regularity,
and it carries the evidentiary weight conferred upon it with respect to its due execution.
It is admissible in evidence without further proof of authenticity and is entitled to full
faith and credit upon its face. He who denies its due execution has the burden of
proving that contrary to the recital in the Acknowledgment he never appeared before
the notary public and acknowledged the deed to be his voluntary act. Whoever alleges
forgery has the burden of proving the same. Forgery cannot be presumed but should
be proved by clear and convincing evidence. Private respondents failed to discharge
this burden of proof; hence, the presumption in favor of the questioned deed stands.

WHEN CAN A CO-HEIR EXERCISE THE RIGHT OF REDEMPTION IN CASE

HEREDITARY RIGHTS ARE SOLD PRIOR TO PARTITION?

GARCIA VS. CALALIMAN, (APR. 17, 1989)

The Respondents claim that the 30-day period prescribed in Article 1088 of the New
Civil Code for petitioners to exercise the right to legal redemption had already elapsed
at that time and that the requirement of Article 1088 of the New Civil Code that notice
must be in writing is deemed satisfied because written notice would be superfluous,
the purpose of the law having been fully served when petitioner Francisco Garcia went
to the Office of the Register of Deeds and saw for himself, read and understood the
contents of the deeds of sale.

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HELD: The issue has been squarely settled in the case of Castillo v. Samonte, where
the SC observed: "Both the letter and spirit of the new Civil Code argue against any
attempt to widen the scope of the notice specified in Article 1088 by including therein
any other kind of notice, such as verbal or by registration. If the intention of the law
had been to include verbal notice or any other means of information as sufficient to
give the effect of this notice, then there would have been no necessity or reasons to
specify in Article 1088 of the New Civil Code that the said notice be made in writing
for, under the old law, a verbal notice or information was sufficient." In the
interpretation of a related provision (Article 1623 of the New Civil Code) written notice
is indispensable, actual knowledge of the sale acquired in some other manners by the
redemptioner, notwithstanding. He or she is still entitled to written notice, as exacted
by the Code, to remove all uncertainty as to the sale, its terms and its validity, and to
quiet any doubt that the alienation is not definitive. The law not having provided for
any alternative, the method of notifications remains exclusive, though the Code does
not prescribe any particular form of written notice nor any distinctive method for written
notification of redemption.

CUIZON vs. REMOTO (G.R. No. 143027, October 11, 2005)

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all of the co-heirs may be subrogated to the rights of the purchaser
by reimbursing him for the price of the sale, provided they do so within the period of
one month from the time they were notified in writing of the sale by the vendor.
The right of legal redemption pertains to Placida’s (the seller) original co-owners,
namely, Eugenio Tabada, Raymunda Tabada and Patrecia Tabada, and their
respective heirs, not to petitioners who are the heirs of Placida. Also, the written
notification should come from the vendor or prospective vendor, Placida in this case,
and not from any other person. This is so because the vendor is in the best position
to know who are his co-owners that under the law must be notified of the sale. Also,
the notice by the seller removes all doubts as to fact of the sale, its perfection; and its
validity, the notice being a reaffirmation thereof, so that the party notified need not
entertain doubt that the seller may still contest the alienation. This assurance would
not exist if the buyer should give the notice.

Exception:

ALONZO VS. IAC (159 SCRA 259)

Actual knowledge was considered an equivalent to a written notice of sale because

the right of legal redemption was invoked more than thirteen years after the sales were
concluded.

CABALES vs. COURT OF APPEALS (G.R. No. 162421, August 31, 2007)
However, as likewise established, the sale as to the undivided share of petitioner
Nelson and his mother was not valid such that they were not divested of their
ownership thereto. Necessarily, they may redeem the subject property from
respondents-spouses. But they must do so within thirty days from notice in writing of
the sale by their co-owners vendors.
In the instant case, the right of redemption was invoked not days but years after the
sale was made in 1978. We are not unmindful of the fact that petitioner Nelson was
a minor when the sale was perfected. Nevertheless, the records show that in 1988,
petitioner Nelson, then of majority age, was informed of the sale of subject property.
Moreover, it was noted by the appellate court that petitioner Nelson was likewise

53
informed thereof in 1993 and he signified his intention to redeem subject property
during a barangay conciliation process. But he only filed the complaint for legal
redemption and damages on January 12, 1995, certainly more than thirty days from
learning about the sale.
In the face of the established facts, petitioner Nelson cannot feign ignorance of the
sale of subject property in 1978. To require strict proof of written notice of the sale
would be to countenance an obvious false claim of lack of knowledge thereof, thus
commending the letter of the law over its purpose, i.e., the notification of
redemptioners.
The Court is satisfied that there was sufficient notice of the sale to petitioner Nelson.
The thirty-day redemption period commenced in 1993, after petitioner Nelson sought
the barangay conciliation process to redeem his property. By January 12, 1995, when
petitioner Nelson filed a complaint for legal redemption and damages, it is clear that
the thirty-day period had already expired.

Primary Structures Corp. vs. Sps. Valencia (G.R. No. 150060. August 19, 2003)
The thirty-day period of redemption had yet to commence when private respondent
Rosales sought to exercise the right of redemption on 31 March 1987, a day after she
discovered the sale from the Office of the City Treasurer of Butuan City, or when the
case was initiated, on 16 October 1987, before the trial court. The written notice of
sale is mandatory. This Court has long established the rule that notwithstanding
actual knowledge of a co-owner, the latter is still entitled to a written notice from the
selling co-owner in order to remove all uncertainties about the sale, its terms and
conditions, as well as its efficacy and status. Even in Alonzo vs. Intermediate Appellate
Court (150 SCRA 259), relied upon by petitioner in contending that actual knowledge
should be an equivalent to a written notice of sale, the Court made it clear that it was
not reversing the prevailing jurisprudence. The court simply adopted an exception to
the general rule, in view of the peculiar circumstances of this case. In Alonzo, the
right of legal redemption was invoked several years, not just days or months, after the
consummation of the contracts of sale but more than thirteen years after the sales
were concluded.”

54