WILLS AND

SUCCESSION
Atty. Lilio J. Amora, Jr.
Law Professor
College of Law
BIT – International College
City of Tagbilaran
Sources:
1. Civil Law Book III by Paras
(annotated)
2. Civil Law Reviewer by Albano, and
3. Articles 774 to 1105, Civil Code of
the Philippines.
Definition of Succession
• Succession is the transmission of rights,
property and obligations from one person to
another, up to the extent of the value of the
inheritance, upon the death of the decedent
or testator, through operation of law
(intestate succession) or through a will.
• (Art. 774 CC)
• Manuel vs. Ferrer, 63SCAD764, (1995)
Two kinds of succession (Art. 778 CC)
• Testamentary succession;
• Legal or intestate succession (by operation
of law); or
• Mixed succession.
• Intestate succession – where the
decedent did not make a will or having
made one, but is found to be invalid.
• Testamentary succession – where the
testator made a valid will.
• Mixed – some property are included in
the will. Other property not included in
the will shall follow the intestate
proceedings.
Two classes of Wills
•Notarial will
•Holographic will
Notarial will
• A person called the testator makes a will in accordance
with the requirements imposed by laws.
• Example of requirements imposed under Philippine laws:
• 1. It must be notarized by a notary public.
• 2. There must be three attesting witnesses.
• 3. The pages of the will must be numbered in letters.
• 4. The testator and the attesting witnesses must affix their
signature on every page of the will.
• 5. etc…
• Absence of any of these requirements shall result to
intestacy (legal succession).
Holographic will
• The will must be written in its entirety by the
testator. (handwritten)
• The will must be dated and signed by the
testator.
• If the will is printed, it is an invalid holographic
will.
• If the will is printed, it shall follow the rules of
a notarial will.
Two kinds of succession as to when it takes effect

• Succession inter vivos which is

actually a donation. It takes effect
during the lifetime of the donor; and
• Succession mortis causa, which takes
effect upon the death of the testator.
Distinction between testator and decedent

• A testator is a person who has

left a will (notarial or
holographic)
• A decedent is a person who left
no will, hence the succession will
be in accordance with the law
(by operation of law)
Can the alien spouse of a Filipino own real
property in the Philippines?
• Yes, by means of succession.
• Section 7, Article XII, 1987 Constitution - Save
in cases of hereditary succession, no private
lands shall be transferred or conveyed except to
individuals, corporations, or associations
qualified to acquire or hold lands of the public
domain.
• How about for a Filipino citizen who has
renounced his citizenship?
• Section 8, Art. XII, 1987
Constitution. Notwithstanding the provisions of
Section 7 of this Article, a natural-born citizen*
of the Philippines who has lost his Philippine
citizenship may be a transferee of private lands,
subject to limitations provided by law.
*Filipino born in the Philippines who has lost his Filipino
citizenship.
Subject to limitations provided by law
• Citizens of the Philippines may lease not more
than five hundred hectares, or acquire not more
than twelve hectares thereof, by purchase,
homestead, or grant. (Section 3, Art. XII, 1987
Constitution).
• However, under the Agrarian Reform Law, a
Filipino citizen is allowed to own only three
hectares of agricultural land.
• Hence, a Filipino citizen can still own another
nine (9) hectares of non-agricultural land.
(residential, commercial, industrial)
Article 774
• Succession is a mode of acquisition, by virtue of which,
property, rights and obligations, to the extent of the
value of the inheritance, of a person are transmitted
through his death to another either by his will or operation
of law.
• Keywords:
• Property, Rights and Obligations (PRO)
• Up to the extent of the value of the inheritance.
• Upon the death of the person
• By will or
• By operation of law (intestate succession or legal
succession)
Property
• The property of the testator/decedent inherited
by the heirs.
• The properties must not be necessarily owned by
the testator/decedent at the time of making the
will.
• It is important that at the time of the testator’s
death, such property shall be owned by him.
(Art. 781 CC)
• After the death of the testator/decedent, his
property shall be called estate.
Property…
• What is future inheritance?
• It is any property or right not in existence or capable of
determination at the time of the contract, that a person
may acquire in the future by succession. (JLT Agro, Inc.
vs. Balansag, GR No. 141882, March 11, 2005)
• May a person enter into a contract over future
inheritance?
• No. The rights of the heirs are inchoate before the death of the
testator/decedent. Moreover, a will is ambulatory, hence, the
testator can revoke or alter the will before his death. (JLT Agro,
Inc. vs. Balansag)
• In the same manner, future inheritance cannot be
renounced.
Future inheritance vs. future things

• Future inheritance cannot be an object of a contract.

(JLT Agro vs. Balansag, GR No. 141882, Mar. 11,
2005; Blas vs. Santos, 111 Phil. 503)
• However, future things can be objects of a contract.
(Art. 1347, CC ) Ex: coconut fruits harvestable next
month.
• “Well-entrenched is the rule that all things, even future
ones, which are not outside the commerce of men may
be the object of contract…” Vda. de Cabalu vs. Sps.
Tabu, GR No. 188417, September 24, 2012.
• Exception: Donations of future property.
• Article 751, CC. Donations cannot comprehend future
property.
• By future property is understood anything which the
donor cannot dispose of at the time of the donation.
• Nemo dat quod non habet. (You cannot give, what you do
not have).
• A will is a form of donation (mortis causa), hence, a
person cannot donate future property.
• However, it is important that at the time of the
testator’s death, such property shall be owned by
him. (Art. 781 CC)
• Future things can be the object of a sale contract.
• In the same manner, future inheritance
cannot be renounced. (Art. 905, CC)
• JLT Agro vs. Balansag, GR No. 141882,
Mar. 11, 2005
• Tordilla vs. Tordilla, 60 Phil. 162
• The rights of an heir to the
property of the testator/decedent
before the death of the latter is still
inchoate. (ga-ong-ong)
• Article 905, CC. “Every renunciation or
compromise as regards a future legitime
between the person owing it and his
compulsory heirs is void, and the latter
may claim the same upon the death of the
former…xxx”
Rights
• These are transmissible rights (example: right to collect
loans extended by the dead parents).
• It must not be a personal right (ex.: right to vote).
• Case: Joe without the consent of Willy, built a hut on the
land of Willy. Willy died. Can the heirs of Willy file a case
against Joe?
• Yes. This is a transmissible right thus it can survive even
after the death of the decedent because this is part of the
inheritance acquired by the children.
• Article 774, Civil Code
• Araneta vs. Montelibano 14Phil117
• Nacar vs. Vistal 119SCRA29
Obligations
• The obligations must be only up to the value of the
inheritance.
• Example:
• A father died and has not paid his loan with the bank in
the amount of P1M.
• The father left only a property valued at P100,000.00 to
his heirs.
• The bank cannot collect the P900,000.00 from the heirs.
• Only the P100,000.00.
• Case: Pedro has a child, Peter. Peter has a child, Rachel.
Peter has a loan with Q Bank in the amount of
P100,000.00. Peter died without paying the loan. After
Peter died, Pedro made a valid will bequeathing Rachel an
inheritance with a value of P1M. Thereafter, Pedro died. At
the probate of Pedro’s will, representatives from Q Bank
intervened to claim the payment of Peter’s loan. Q Bank
had the contention that Rachel is an heir of Peter and
further invoking the provisions of Article 774 of the Civil
Code that property, rights and obligations are transferred
to the heir upon the death of the testator.
• You are the judge. Will you grant the claims of Q Bank?
• No. Rachel got the inheritance from Pedro, not from
Peter. Moreover, Pedro nor Rachel did not contact the
loan. It was Peter. (Ledesma vs. McLachlin 66Phil547 )
Art. 777
• The rights to the succession are transmitted from
the moment of the death of the decedent/testator.
• It can be an actual death or presumptive death.
• Thus, an heir’s right to the property, rights and
obligations of the testator/decedent, is still
inchoate before the death of the latter.
• The testator can dispose his property during his
lifetime.
• If the testator/decedent disposes all his property
in his lifetime, the heirs get nothing.
Question…
Vicente de Borja had three children, Vicente, Jr.,
Venancio and Vicky, all Filipinos and all of legal
age. Vicente owned property with a value of
P300M, including a nine hectare agricultural land
in Antipolo City. Vicente died. Before subdividing
the agricultural land among his heirs, Vicente, Jr.
sold a portion of the agricultural land to Santa
Lucia Real Estate Developer with an area of three
hectares.
Can Vicente, Jr. sell a portion of the agricultural
land even before the execution the extrajudicial
partition and before making the subdivision plan?
• Yes. Vicente, Jr. can sell his undivided interest in the
land (aliquot part) even before executing the
extrajudicial partition and even before making the
subdivision plan because succession takes place upon
the death of the testator or decedent. However, the
property sold has no metes and bounds yet.
• Art. 777 CC
• Testate Estate of Tangco Jose de Borja vs. Tasiana de
Borja, 46SCRA577
Distinction between actual death and presumptive
death
• Actual death – the death is
proven. There is a cadaver
and a death certificate has
been issued by the health
officer.
• Presumptive death – the death
is not proven. The person is
only absent. (constructive
death).
Judicial declaration of death
• This petition is granted only in two instances:
• 1. For opening of one’s succession; and
• 2. For remarrying.
Judicial declaration of death
• The absentee shall not be considered dead
for the purpose of opening his succession
till after an absence of ten years. If he
disappeared after the age of seventy-five
years, an absence of five years shall be
sufficient in order that his succession may
be opened. (Art. 390 CC)
Judicial Declaration of Death
• The court will dismiss the petition, if the petitioner did not
extrajudicially explore on all the possibilities on the
whereabouts of the absent person.
• The petitioner shall prove to the court, that despite
earnest attempt to look for the missing person, such
attempt proved to be futile.
• Proof:
• 1. Certification from the NBI;
• 2. Certification from the police;
• 3. Certification from the Barangay Chairman.
Qualified absence in opening of one’s
succession (Art. 391 CC)
• The following shall be considered dead for all purposes
including the division of the estate among the heirs:
• (1) A person on board a vessel lost during a sea voyage,
or an aircraft which is missing, who has not been heard of
for four (4) years since the loss of the vessel or aircraft;
• (2) A member of the armed forces who has taken part in
armed hostilities, and has been missing for four (4) years;
• (3) A person who has been in danger of death under other
circumstances and whose existence has not been known
for four (4) years;
• Tordilla vs. Tordilla 60Phil162
Remarrying
• If a married person has been absent for
four consecutive years, the spouse
present may contract a subsequent
marriage if he or she has well-founded
belief that the absent spouse is already
dead.
• Art. 41, Family Code
Qualified absence (remarrying)
• The following shall be considered dead:
• (1) A person on board a vessel lost during a sea voyage,
or an aircraft which is missing, who has not been heard of
for two (2) years since the loss of the vessel or aircraft;
• (2) A member of the armed forces who has taken part in
armed hostilities, and has been missing for two (2) years;
• (3) A person who has been in danger of death under other
circumstances and whose existence has not been known
for two (2) years;
• Art. 41, FC
What if, the absent person reappears? (as far as
succession is concerned)
• Article 392 CC. If the absentee appears, or
without appearing his existence is proved, he
shall recover his property in the condition in
which it may be found, and the price of any
property that may have been alienated or the
property acquired therewith; but he cannot
claim either fruits or rents.
What if, the absentee reappears, will the first marriage be revived?

• A and B were legally married.

• A was presumed dead and a judicial declaration of
death was decreed by the court.
• B married C.
• One year after the judicial declaration of death, A
reappeared.
• Will the marriage between A and B be revived? And if
so, what will happen to the marriage between B and C?
• Art. 42, Family Code. The subsequent marriage referred
to in the preceding Article (marriage by the present
spouse) shall be automatically terminated by the
recording of the affidavit of reappearance of the absent
spouse, unless there is a judgment annulling the previous
marriage or declaring it void ab initio.
• A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registry of the
residence of the parties to the subsequent marriage at the
instance of any interested person, with due notice to the
spouses of the subsequent marriage and without
prejudice to the fact of reappearance being judicially
determined in case such fact is disputed.
Codicil
• It is a notarial will or holographic will attached to the first
will.
• The purpose of which is to modify, add, explain or alter
the first will. (Art. 825)
• If it is a notarial codicil, it must comply with the provisions
required by law. (Art. 826)
• Incorporation by Reference (Art. 827)
Incorporation by Reference (Art. 827)

• 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.
Probate Court
• Art. 838 – No will shall pass either real or
personal property unless it is proved and
allowed in accordance with Rules of
Court. (Coronado vs. CA, GR No. 78778,
December 3, 1990)
Probate Court
• The probate court shall allow or disallow
the implementation of a will.
• It is only concerned with the extrinsic
validity of a will:
• Whether or not there are three attesting
witnesses,
• Whether or not the pages are numbered in
letters,
• Whether or not the testator and attesting
witnesses affixed their signatures on every
page of the will).
Probate Court
• But in one case, the Court, not only ruled on the extrinsic
validity of the will but also on the intrinsic validity of the
will.
• On the face of the will, the devisee was a concubine of the
testator. The trial court declared the will invalid.
• An appeal was filed contending that the probate court has
no jurisdiction on the intrinsic validity of the will.
• The SC ruled that the trial court can pass on the
INTRINSIC validity of the will. In this case, if only the
extrinsic validity of the will is investigated, the process
would become an empty ceremony, because eventually,
the institution of the concubine would be disallowed.
• Nepomuceno vs. CA, 139 SCRA 206 (1985)
Prohibition to donate (a will is a form of donation –
donation mortis causa)
• Article 739. The following donations shall be void:

• (1) Those made between persons who were

guilty of adultery or concubinage at the time of
the donation;
• (2) Those made between persons found guilty of
the same criminal offense, in consideration
thereof;
• (3) Those made to a public officer or his wife,
descendants and ascendants, by reason of his
office.
Prohibition…
• Article 1490, CC. The husband and the wife cannot sell property
to each other, except:
• (1) When a separation of property was agreed upon in the
marriage settlements; or
• (2) When there has been a judicial separation of property under
article 191.
• People who are prohibited to sell to each other are also
prohibited to donate to each other.
• Art. 87, FC. Every donation or grant of gratuitous advantage,
direct or indirect, between the spouses during the marriage
shall be void, except moderate gifts which the spouses may
give each other on the occasion of any family rejoicing. The
prohibition shall also apply to persons living together as
husband and wife without a valid marriage.
Matters that should be brought up before the
probate court
• 1. The determination of heirs;
• 2. Proof of filiation;
• 3. Determination of the estate of the decedent; and
• 4. Claims to the estate.
• 5. Validity of the will.
• (Arbolario vs. CA, 401 SCRA 360 [2003])
• (Testate Estate of the Late Adrian Maloto vs. Maloto,
L-32328, Sept. 30, 1977)
• (Ortaňez-Enderes vs. CA, 321SCRA178)
• The probate court has no jurisdiction on the question of
ownership of the property of the testator. (Pastor, Jr. vs.
CA, GR 56340, June 24, 1983)
• Hence, when a third person questions the ownership of
the property bequeathed by the testator to an heir, the
third person shall file a separate and independent case
over the ownership of the property.
Chapter 2
TESTAMENTARY SUCCESSION
Wills in general
• A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain
degree*, the deposition of his estate, to take effect after
his death. (Art. 783 CC)
• *To control to a certain degree – in testamentary
succession, the testator is allowed to give half of his
property (FREE PORTION) to strangers (otherwise known
as VOLUNTARY HEIRS)
• The testator cannot compromise the other half of his
property because it is assigned as the LEGITIMES of the
compulsory heirs.
• Two kinds of heirs in testamentary succession:
1. COMPULSORY HEIRS
2. VOLUNTARY HEIRS

• COMPULSORY HEIRS include

• 1. the surviving spouse
• 2. legitimate descendants
• 3. illegitimate descendants
• 4. legitimate ascendants and
• 5. illegitimate ascendants.
• Voluntary heirs may include strangers: ex. driver,
cook, etc.
In intestate succession…
• In intestate succession, the heirs are called LEGAL
HEIRS.
• They include:
• 1. surviving spouse,
• 2. legitimate and illegitimate descendants
• 3. legitimate and illegitimate ascendants and
• 4. collateral relatives (brothers, sisters, nephews, nieces).
• VOLUNTARY HEIRS include persons not related
to the testator.
• Thus a testator can institute (appoint) his
driver, cook and gardener to the free
portion.
• However, the testator is only allowed to
give half (50%) of his property to voluntary
heirs (Free Portion).
• The other half is reserved for the legitimes
of the compulsory heirs and must not be
compromised.
Compulsory heirs (testamentary succession)

• Legitimate and illegitimate descendants.

• Adopted child.
• Surviving spouse.
• Legitimate and illegitimate ascendants.
• If there are no descendants, the
ascendants will inherit.
• (please refer to p.304 – Paras textbook)
Compulsory heirs vs. voluntary heirs
Compulsory heir Voluntary heir
By operation of law – the law The testator chooses the
dictates who are the voluntary heir.
compulsory heirs.
Must be a member of the Can be a stranger. (can also
family. be a member of the family)
The 50% of the estate is The testator can give 50% of
reserved for the legitimes of his estate to voluntary heirs as
the compulsory heirs. legacy or devise. Devise – real
property; Legacy – personal
property.
Voluntary heirs
• Can the testator made a compulsory
heir a voluntary heir? or
• Can the testator made a voluntary heir
a compulsory heir?
Compulsory heir as voluntary heir
• A made a will and died. He is survived by his four children, W, X,
Y and Z.
• The value of A’s inheritance is P1M.
• In the will, A made O (his driver) and P (his cook) his voluntary
heirs, giving a legacy valued at P125, 000.00 each for a total of
P250,000.00.
• A in his will, cannot compromise the 50% (P500,00.00) of his
property because it is reserved for the legitimes of W, X, Y and Z.
• However, the amount he bequeathed to O and P was only
P250,000.00. There is still a balance of P250,000.000 from the
free portion.
• Hence, A can make X his favorite child a VOLUNTARY HEIR by
bequeathing him the balance of P250,000.00 out of the free
portion. (balance)
• P1M is total value of the inheritance.
• 50% (P500,00.00) is reserved for the legitimes of W, X, Y and
Z.
• The other 50% (P500,000.00) is the free portion.
• However, only P250,000.00 out of the free portion is given to
the voluntary heirs (O the driver and P the cook).
• There remains P250,000.00 from the free portion.
• A instituted, X his favorite child with P250,000.00 from the free
portion. (Hence, both a compulsory heir and voluntary heir)
• In the legitimes,
• W gets P125,000.000,
• X gets P125,000.00,
• Y gets P125,000.00 and
• Z gets P125,000.00 – for a total of P500,000.00.
• But X will receive a total of P375,000.00 – P125,000.00 from
the legitimes and P250,000.00 from the free portion.
Inheritance P1M
W X Y Z O P TOTAL
child child child child cook driver
LEGITIMES P125,000.00 P125,000.00 P125,000.00 P125,000.00 NONE NONE P500,000.00
P500T
FREE NONE P250,000.00 NONE NONE P125,000.00 125,000.00 P500,000.00
PORTION
P500T
P125,000.00 P375,000.00 P125,000.00 P125,00.00 P125,000.00 P125,000.00
TOTAL P1M
• Therefore, a testator can make a
compulsory heir a voluntary heir.
• But a testator cannot make a
voluntary heir a compulsory heir.
• Thus, the driver of the testator who
is not related to the latter, cannot
be a compulsory heir.
Voluntary heirs
• A voluntary heir who dies before the testator transmits
nothing to his heirs. (Art. 856)
• Example: A has a friend, B. In his will, A instituted B as
heir to an estate of P1M. If B dies ahead of A, the heirs of
B gets nothing.
• Predecease – if the heir dies before the testator.
What is the meaning of institution?
Instituting an heir means the testator appoints or
chooses a VOLUNTARY HEIR to receive inheritance
from the FREE PORTION. This should be stated in
the will.
Example:
1. I institute my driver to receive P125,000.00 from
the free portion.
2. My cook shall receive P100,000.00 from my
properties.
In these cases, the testator appoints or INSTITUTES a
voluntary heir to receive his property after he dies.
But, take note, the portion of the property of the
testator given to the voluntary heir, must come only
from the free portion.
Predecease, incapacity and renunciation
• Predecease is when an heir dies ahead of the testator.
• Incapacity – when an heir is incapacitated to receive
inheritance (insane).
• Renunciation – an act of the heir renouncing/rejecting the
inheritance.
Compulsory heir
• When a compulsory heir predeceases the
testator, the right of representation takes
place.
• When a compulsory heir is incapacitated,
the right of representation takes place.
• When a compulsory heir renounces the
inheritance, there is no right of
representation.
Representation
Representation – the right by virtue of
which, the representative is raised to
the place and degree of the person
represented, and acquires the rights
which the latter would have if he was
living or if he could have inherited. (Art.
970)
Representation
Antonio
(father)

Benjamin Carlos Daniel

(son) (son) (son)
predecease incapacitated renounced

Efren Karla Felix

(grandson) (granddaughter) (grandson)
Representation
• Representation takes place
only in predecease and
incapacity but NOT in
renunciation.
Representation
• The right of representation takes place
only in the direct descending line but
never in the ascending. (Art. 972)
• A person who renounces may
represent but cannot be represented.
(Art. 976).
A person who renounces may represent

A B C D
Father Son grandson Great grandson

• C renounces his inheritance from B.

• Thus, D cannot represent C, in case C predeceases B or
is incapacitated (from the inheritance of B).
• But C can represent B, in case B predeceases A or is
incapacitated, (from the inheritance of A).
Representation
• Article 972. The right of representation takes place in the
direct descending line, but never in the ascending.
• In the collateral line, it takes place only in favor of the
children of brothers or sisters, whether they be of the full
or half blood.
• Hence, a grandniece cannot inherit by way of
representation. (Salao vs. Salao, 70 SCRA 65)
Representation
A
C D
E
G

• A had two children C and D. D had a child E. E had a child G.

A predeceased his children. D predeceased his brother C.
• E predeceased his uncle C. Can G inherit from C by way of
representation?
• No. A grandniece cannot inherit by way of representation.
(Salao vs. Salao, 70 SCRA 65; Art. 972, CC)
• Since C is single, G can acquire the properties of C in some other
way (donation) but not by representation.
The making of a will is a personal act
• The making of a will cannot be left to the discretion of a
third person.
• A will is a personal act. The testator must decide on what
and for whom to bequeath.
• Article 784, CC. The making of a will is a strictly personal
act; it cannot be left in whole or in part to the discretion of
a third person, or accomplished through the
instrumentality of an agent or attorney.
• Rabadilla vs. CA, G.R. 113725, June 29, 2000.
Can a blind, deaf or deaf-mute make a will?
Article 807. If the testator be deaf, or a deaf-mute,
he must personally read the will, if able to do so;
otherwise, he shall designate two persons to read
it and communicate to him, in some practicable
manner, the contents thereof.
Article 808. If the testator is blind, the will shall be
read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before
whom the will is acknowledged.
Voluntary heirs
• Real property bequeathed to
the voluntary heir is called a
devise.
• Personal property given to the
voluntary heir is called a
legacy.
Executors and administrators
• Article 786. The testator may entrust to a third
person the distribution of specific property or
sums of money that he may leave in general to
specified classes or causes, and also the
designation of the persons, institutions or
establishments to which such property or sums
are to be given or applied.
Executors and administrators
• An executor is the person named in the will to distribute the
property, rights and obligations to the heirs, as intended by
the testator in his will.
• A lady executor is called executrix.
• An administrator is the person chosen by the probate court to
distribute the estate among the heirs, in the following cases:
• 1. There is no executor named in the will; or
• 2. The executor named in the will refused to do the task, or
• 3. The executor named in the will is not qualified as such.
• A lady administrator is called administratrix.
Ambiguity in a will
• Article 789, CC. When there is an imperfect description, or
when no person or property exactly answers the
description, mistakes and omissions must be corrected, if
the error appears from the context of the will or from
extrinsic evidence, excluding the oral declarations of the
testator as to his intention; and when an uncertainty arises
upon the face of the will, as to the application of any of its
provisions, the testator's intention is to be ascertained
from the words of the will, taking into consideration the
circumstances under which it was made, excluding such
oral declarations.
Intrinsic and Extrinsic ambiguity…
• Kinds of ambiguity in a will:
• Latent or Intrinsic ambiguity – that which does not appear
on the face of the will and is discovered by extrinsic
evidence.
• Example: “I give to my sister-in-law, my car.” If there are
two sisters-in-law, this is intrinsic ambiguity and can be
proven by evidence outside the will.
• Patent or Extrinsic ambiguity – those ambiguity which
appears on the face of the will.
• Example: “I give my hacienda to some of my brothers.” if
there are seven brothers, then there is confusion whom to
give the hacienda.
Rules governing the interpretation of wills
• Article 790. The words of a will are to be taken
in their ordinary and grammatical sense, unless
a clear intention to use them in another sense
can be gathered, and that other can be
ascertained.
• Technical words in a will are to be taken in their
technical sense, unless the context clearly
indicates a contrary intention, or unless it
satisfactorily appears that the will was drawn
solely by the testator, and that he was
unacquainted with such technical sense.
Rules… (interpretation of wills)
• Article 791. The words of a will are to receive an interpretation
which will give to every expression some effect, rather than
one which will render any of the expressions inoperative; and
of two modes of interpreting a will, that is to be preferred
which will prevent intestacy.
• Article 792. The invalidity of one of several dispositions
contained in a will does not result in the invalidity of the other
dispositions, unless it is to be presumed that the testator
would not have made such other dispositions if the first invalid
disposition had not been made.
• Article 793. Property acquired after the making of a will shall
only pass thereby, as if the testator had possessed it at the
time of making the will, should it expressly appear by the will
that such was his intention.
Rule which governs the forms of will
• Article 795. The validity of a will as to its form
depends upon the observance of the law in force at the
time it is made.
• In the case of Vda. de Enriquez vs. Miguel Abadia, L-
7188, August 9, 1944, the probate court disallowed the
holographic will made in 1923.
• Reason: in the year 1923, holographic wills were not
allowed by law.
• The new Civil Code which allows holographic will
was approved on June 18, 1949.
Laws which govern in the partition of the estate
among the heirs
Article 16, CC. Real property as well as personal
property is subject to the law of the country where it is
situated. However, intestate and testamentary
successions, both with respect to the order of succession
and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose
succession is under consideration, whatever may be the
nature of the property and regardless of the country
wherein said property may be found.
• Question: Al was a Canadian. He married Barbie a
Canadian and they were blessed with two children, Mike
and Cynthia. They acquired property in Canada. Al
divorced Barbie under Canadian laws. Al moved to the
Philippines and resided in Panglao, Bohol. He met Gloria,
a Filipina and married her. Al and Gloria had a child,
Peter. Al and Gloria acquired property in Panglao. When
Peter was one year old, Al died.
• How will the property of Al in Canada and Panglao be
divided among Mike and Cynthia (first marriage) and
Gloria and Peter?
Article 16 of the Civil Code is an example of lex rei
sitae (where the property is situated).
There is however an exemption – succession.
Miciano vs. Brimo, 50 Phil.867
• Take note:
• 1. the order of succession;
• 2. the amount of successional rights; and
• 3. the intrinsic validity of testamentary provisions.
TESTAMENTARY CAPACITY AND INTENT
• Bar Question:
• Distinguish testamentary power from testamentary
capacity.
• Testamentary power is the statutory right or the privilege
granted by law to someone to dispose the property by acts
effective mortis causa;
• Testamentary capacity is the right to make a will provided that
the will complies with the conditions required by law.
• Answer on p. 72 (Paras)
Testamentary capacity
• Article 796, CC. All persons who are not
expressly prohibited by law may make a will.
• Article 797, CC. Persons of either sex under
eighteen years of age cannot make a will.
• Who is a person under civil interdiction?
• Can a person under civil interdiction make a
will?
Testamentary capacity
• Must be of legal age. (Art. 797)
• Must be of sound mind (Art. 798) – “…it shall be
sufficient if the testator was able at the time of
making the will:
• 1. to K - know the nature of the estate to be
disposed of;
• 2. the P – proper objects of his bounty; and the
• 3. the C – character of the testamentary act.
Senility distinguished from senile dementia
Senility – infirmity of old age (gi ango-ango in
Bisaya, or ulyanin in Tagalog);
Senile dementia – decay of mental faculties. In its
advance stage, is considered an unsoundness of
mind. (Crisostomo vs. Maclang, 46 OG No. 5,
p.2106)
Senility is not considered as manifestation of
unsound mind.
(Baltazar vs. Laxa, GR No. 174489, April 11, 2012)
(Bagtas vs. Paguio, 22 Phil. 277; Art. 799)
Unsoundness of mind
Unsoundness of mind (p. 76 Parras)
Religious delusion in the unsettling of judgement.
Blind extraordinary belief in spirits while making a will.
Monomania – insanity on a single subject. If the subject of
the insanity is the will and succession.
Insane delusions – belief in things which no rational mind
would believe to exist.
Drunkenness – if this results in failure to know the nature of
the testamentary act.
Idiocy – congenital intellectual deficiency.
Unsoundness of mind
A comatose stage resulting from
hypertension and cerebral thrombosis and
preventing the testator from talking and
understanding. (Gonzales vs. Carungcong,
L-3272-73, Nov. 29, 1951)
State of delirium (Albornoz vs. Albornoz, 71
Phil. 414)
Presumption on the soundness of mind
• Article 800. The law presumes that every person is of
sound mind, in the absence of proof to the contrary.
• The burden of proof that the testator was not of sound
mind at the time of making his dispositions is on the
person who opposes the probate of the will; but if the
testator, one month, or less, before making his will
was publicly known to be insane, the person who
maintains the validity of the will must prove that the
testator made it during a lucid interval.
• Sanity is the rule and insanity is the exception.
• The person who claims insanity has the burden of
proof.
• Article 801. Supervening incapacity does not invalidate an
effective will, nor is the will of an incapable validated by
the supervening of capacity.
• Example:
• A made a valid will last month. Today he becomes insane.
The will is still valid.
• A made a will last month but was insane. Today, A had a
lucid interval. The will is still invalid.
Art. 802 and 803
• A married woman may make a will without the consent of
the husband provided that the subject property are her
paraphernal property.
• Art. 109 FC. The following shall be the exclusive property
of each spouse:
• (1) That which is brought to the marriage as his or her own;
• (2) That which each acquires during the marriage by
gratuitous title;
• (3) That which is acquired by right of redemption, by barter
or by exchange with property belonging to only one of the
spouses; and
• (4) That which is purchased with exclusive money of the
wife or of the husband.
•September 2, 2023
Forms of wills
• Art. 804 – Every will must be in writing and
executed in a language or dialect known to
the testator.
• Read Art. 805 – basic requirements of a
notarial will
Art. 805 – basic requirements of a notarial will
(memorize)
1. Must be subscribed at the end by the testator, or by
the testator’s name written by some other person in his
presence, and by his express direction.
2. It must be attested and subscribed by three or more
witnesses in the presence of the testator and of one
another;
3. The testator and the witnesses shall sign on the left
margin of all the pages.
4. The pages must be numbered in letters;
Basic requirements of a notarial will
5. The testator must be at least 18 years old with a sound
mind. (Art. 797, 798)
6. The will must be in writing and executed in a language
or dialect known to the testator. (Art. 804)
7. The will must be subscribed at the end (Art. 805)
8. The will must be attested by three witnesses. (Art. 805)
9. The testator and the attesting witnesses must affix their
signatures on every page at the left margin (Art. 805)
• 10. All the pages shall be numbered correlatively in
letters placed on the upper part of each page. (Art. 805)
Basic requirements of a notarial will
11. Art. 806. Every will must be
acknowledged before a notary public by the
testator and the witnesses.
12. Art. 808. If the testator is blind, the will
shall be read to him twice; once by the
subscribing witnesses and again by the
notary public before whom the will is
acknowledged.
Basic requirements of a notarial will…
• Jaguar owns properties valued at P100B. One day, Jaguar
met a vehicular accident losing his both hands. At the age of
61, Jaguar wants to make a will. Can Jaguar make a will
considering that he cannot affix his signature or thumbmark
thereon?
• Yes. Every will must be subscribed at the end thereof by the
testator himself or by the testator’s name written by some
other person in his presence and by his express direction
and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.
• In Re: Will of Tan Diuco, 45 Phil. 807;
• Art. 805
Basic requirements of a notarial will
Pedro made a will. The will was prepared by Atty. X, a
notary public. There were five persons inside the living
room other than Pedro and Atty. X when the former affixed
his signature. They were Jose, Arthur, Donald, Kate and
Fritzi. They were all listed as attesting witnesses. When
Pedro affixed his thumb mark on the will, Jose was at the
couch reading the newspaper; Arthur, was frequently going
to the toilet outside the living room because of LBM; Kate
was watching TV with Donald inside the living room and
Fritzi was assisting Pedro turn the pages of the will for the
latter to affix his thumb mark.
Is the will valid considering that Pedro only affixed his
thumb mark?
Yes. Signing by the testator by means of a thumb mark is
valid because it was done with his intention to be his
signature. There is no need for signing his full name.
(Payad vs. Tolentino, 62 Phil. 848)
Can Arthur qualify as an attesting witness?
No. His going to the toilet does not comply
with the requisite of “presence” which
requires the opportunity to see by merely
casting one’s eye in the proper direction and
without any physical obstruction to prevent
their doing so. (Jabonita vs. Gustilo, 5
Phil. 541)
What if, the will is sent via messenger or email? Is
it valid? (soft copy)
• There is a new law, Electronic Commerce Act (ECA) –
RA8792.
• Furthermore, the SC issued a resolution, AM-01-7-01 on
August 1, 2001, Rules on Electronic Evidence.
• In this resolution, the SC directs that documents sent
through soft copy are accepted as evidence.
• Moreover, on September 12, 2012, Congress enacted RA
10175 also known as Cybercrime Prevention Act.
• Soft copy is admissible in evidence.
Electronic Wills
• All contractual agreements entered into through
E-document (soft copy) are enforceable.
• However, the making of a will is not among those
considered as evidence in E-document.
• Sec. 7 (c-ii) of the ECA provides, “…no provision
x x x shall apply to vary any and all requirements
of existing laws and formalities required in the
execution of documents for their validity*.
• *soft copies does not contain the seal of the notary
public, the signature of the attesting witnesses…
Electronic mails
• If the content of the email was the
holographic will of the testator, is it
valid?
The will must be signed at the end…
• If the testator’s first name appears without the surname,
the will is still valid. (Yap Tua vs. Yap Ka Kuan, 27 Phil. 579)
• If the testator’s name is misspelled, abbreviated or by
nickname or by Father, Mother or in an assumed name,
the will is still valid provided that the testator intended
the same to be his signature. (American jurisprudence)
• A testator can sign with his thumbmark (Solar vs. Diancin,
55 Phil. 479, De Gala vs. Gonzales, 5 Phil. 480)
• Or with his initials (Yap Tua vs. Yap Ka Kuan)
• Or even with a rubber stamp or an engraved dye,
provided such was the intention of the testator. (Thompson
on Wills, p. 171-173)
• Even if the testator’s hand is guided by another when the
signing was made, the signing will still be valid, and can
be considered as done by the testator himself (Amata vs.
Tablejo, 48 Phil. 485)
• A testator can sign with a mere cross if he intends that to
be his signature (Abaya vs. Tablejo; Leario vs. Leano, 30 Phil.
612)
• If another person writes the testator’s name for him, the
mere placing of a cross above the testator’s name is valid
provided that it is stated in the will that somebody had
signed for the testator. (Garcia vs. La Cuesta L-4067, Nov.
29, 1961)
• Somebody else may write the testator’s name, provided
that it is done in the latter’s presence and express
direction. (Art. 806)
• The person writing for the testator’s name should not be
one of the attesting witnesses. But if there are more than
three (3) attesting witnesses, one of them may sign for the
testator. (In re: Will of Tan Diuco, 45 Phil. 807)
• The signatures can be placed not only on the left margin,
but also on the right, top or bottom, for the only purpose is
to identify the pages used and thus prevent fraud. There
is substantial compliance. (Avena vs. Garcia, 42 Phil. 145;
Nayue vs. Mojal, 47 Phil. 152)
Signatures…
• Failure to have the marginal signatures of the testator and
witnesses is a fatal defect. Thus, even if the second page bears the
signature of the testator and his witnesses, but the first page does
not bear the signatures, the will cannot be admitted to probate. (In
re: Will of Prieto, 46 Phil. 700; Estate of Tampoy vs.
Alberastine, L-14322, Feb. 25, 1960)
• But in one case, the SC relaxed this requirement (that every page
must be signed by the testator and the witnesses) because it was
proven that the lack of signature was due to inadvertence.
• One page was not signed. There are instances when two papers
are stuck together, hence the absence of the signatures on the
paper which stuck to another paper.
• The will must be admitted to probate because of the application of
the liberality rule.
• Icasiano vs. Icasiano, L-18979, June 30, 1964
• The requirement that every page must be
numbered correlatively in letters placed on the
upper part of each page, has been relaxed
• Hence, the numbers can be done by figures (1,
2, 3, etc.) or by A, B, C, etc. or by One, Two,
Three, etc.). There is substantial compliance.
(Aldaba vs. Roque, 43 Phil. 378; Lopez vs.
Liboro, 81 Phil. 429; Nayue vs. Mojal 47 Phil.
152)
Holographic will
• Definition: It is one entirely written, dated
and signed by the hand of the testator. Art.
810. (Caneda vs. CA, 41 SCAD, 968 [1993])
• No witness is required in holographic will.
Art. 810.
• If it is printed, the whole will is null and void
(4 Castan 341)
The holographic will must be dated
• Placing the words, Independence Day 2000
is a valid entry on the will because the
exact date can be determined, June 12,
2000 or Christmas Day 2001 because it
can be determined, December 25, 2001.
• (Roxas vs. De Jesus, Jr., GR No. 38338,
Jan. 28, 1985)
Basic requirements of a holographic will
• Must be written in its entirety by the testator.
• Must be signed by the testator.
• Must be dated.
• No witnesses are required.
• No marginal signatures are required.
• No acknowledgement is required.
Procedure in the probate of a holographic will
• Art. 811. In the case of a holographic will, it shall be
necessary that at least one witness who knows the
handwriting and signature of the testator explicitly
declare that the will and the signature are in the
handwriting of the testator. In the absence of any such
competent witness, and if the court deem it necessary,
expert testimony may be resorted to. (Sec. 5, Rule 76,
Rules of Court).
• If the holographic will is contested, three (3) witnesses
are required to testify on the authenticity of the will.
• (Heirs of Matilde Montinola-Samson vs. CA, GR No. 76648, Feb. 26, 1988)
• A holographic will may be made in or
out of the Philippines. (Seangio vs.
Reyes, 508 SCRA 177 [2006])
• In case of any insertion, cancellation,
erasure or alteration in a holographic
will, the testator must authenticate the
same by his full signature. (Art. 814)
Formalities of a will
• A Filipino can make a will in or out of the
Philippines provided he complies with the
following formalities:
• 1. He follows the formalities in that foreign
country (Art. 815) lex loci celebrationis
• 2. He follows the formalities of a will in
accordance with Philippines laws. – lex
nationalii
An alien who is abroad can make a will provided he
follows these requisites:
• He follows the formalities of his domicile or residence.
• He follows the formalities in that foreign country;
• He follows the formalities of his own country; or
• He follows the formalities prescribed by Philippine laws.
• It is presumed that the property involved in the will are
located in the Philippines.
• Art. 816
Joint wills
• Definition: Joint wills are those which contain in one
instrument the will of two or more testators jointly
signed by them.
• Joint wills are prohibited in the Philippines. (Art. 818)
• Joint wills executed by Filipinos shall not be valid in
the Philippines, even though allowed in the country
where they may be executed. (Art. 819)
Problem (Joint wills)
• X and Y executed two (2) separate wills containing
essentially the same provisions. Can they be probated
together?
• Yes. Courts will always strive to settle the entire controversy in
a single proceeding leaving no root or branch to bear the seeds
of future litigation. (Vda. de Perez vs. Hon. Tolete, GR No.
76714, June 2, 1994).
• In the first place, the court cannot determine if they are joint
wills or not because they were executed in two documents.
(Joint will is only one document)
• Hence, they shall be probated.
Witnesses to wills (qualifications)
• Must be of sound mind (Art. 820)
• Must be of legal age (Art. 820)
• Must be able to read and write (Art. 820)
• Must not be blind, deaf or dumb (Art. 820)
• Must be domiciled (habitual residence) in the
Philippines (Art. 821). Hence, an alien domiciled in
the Philippines can be an attesting witness to a
notarial will.
• Must not have been convicted by final judgement
of falsification of document, perjury or false
testimony. (Art. 821)
Witnesses…
• The subsequent incompetency of a witness does not
invalidate a will provided that at the time the will was
made and executed, such witness was qualified.
• In the same manner, the will is void, if at the time it is
made, the witness is not qualified to be as such,
notwithstanding the fact that this witness became qualified
after the making of the will.
• Art. 822
Witnesses cannot inherit in the same will (Art.
823, CC)
Any of the attesting witnesses.
Their spouse.
Their parents.
Their child.
Any person claiming the right of such witness, spouse,
parent or child (ex. Creditor)
However, there is an exemption: If there are more than
three (3) witnesses, then the witness, his, spouse, parents
or children may be the beneficiary of a will.
Only three (3) attesting witnesses are required by law.
Question
• X made a will. It was duly notarized. A, B, C, D and E
were the attesting witnesses.
• Under Art. 823, CC, the witness, his spouse, child or any
person representing the witness cannot be made a
voluntary heir.
• In the case above, X in his will instituted A and gave P1M
from the free portion.
• Is the institution valid?
Witnesses…
• A creditor of the witness, the spouse, parent or
child of the witness is disqualified to be an
attesting witness. (Art. 823)
• However, a creditor of the testator can be an
attesting witness. (Art. 824)
• A creditor of the testator can intervene in the
probate of the will of the later to claim his
credits.
Revocation of wills
• Art. 828 – A will may be revoked by the testator at any
time before his death. Any waiver or restriction of this right
is void.
• Thus, a will is ambulatory because the testator can
change, modify, add or revoke a will before his death.
(Caňiza vs. CA, 79 SCAD 863 [1997]).
A will is ambulatory
X made a will bequeathing one (1) hectare of agricultural
land to his compulsory heirs. After making the will, X
contacted a loan with Q Bank. Unable to pay his loan on
the expiration date, X executed a document conveying the
land (agricultural land he gave to his compulsory heirs) to
Q bank as payment for his unpaid loan. X died. He was
survived by his spouse and legitimate children. A civil action
was filed by Q Bank for recovery of property. In the Answer,
the heirs of X contended that the will was done before the
conveyance. Who has better right to the land?
JLT Agro vs. Balansag , GR No. 141882, Mar. 11, 2005
How a will is revoked…
• 1. By implication or operation of law;
• 2. By virtue of an overt act (like
burning, tearing, etc.);
• 3. By virtue of revoking the will.
• Art. 830
By implication of law…
• 1. When the testator sells or donates the property, the heir gets
none. (Art. 957, CC)
• 2. When a spouse has given rise to legal separation (Art. 63 (4),
Family Code).
• 3. Unworthiness of an heir (Art. 1032, CC)
• 4. Credit that had been given as legacy but was judicially
demanded by the testator (Art. 936)
• 5. One or some of the compulsory heirs in the direct line have
been preterited (omitted). Art. 854.
Intent to revoke not sufficient
• Intent to revoke (animus revocandi) is not sufficient;
• There must be an overt act to consummate the
revocation. (Testate Estate of Manaloto vs. CA, GR
No. 76464, Feb. 29, 1988)
• Crumpling is not equivalent to tearing. Crumpling
must be coupled with animus revocandi to constitute
revocation. (Roxas vs. Roxas, 48 OG 2177)
• If the will is mutilated without animus revocandi, the
will is not revoked. (Santos vs. Santos, Dec. 11, 1950)
Can a lost copy be probated?
• It depends. Yes, if there was no animus revocandi (intent
to destroy/revoke) and provided further that the will can
be proven by other documents like the carbon copy.
• If it is otherwise, no.
• Icasiano vs. Icasiano, L—18979, June 30, 1964.
• A lost holographic will can not be probated. (Gan vs.
Yap, 104 Phil. 509)
Doctrine of Dependent Relative Revocation

• It means that the revocation of the first will depends on

the validity of the revoking or second will. If the second
will is valid then the first will is revoked and if it is the other
way around, then the first will is revived. (Molo vs. Molo,
L-2538, Sept, 21, 1951)
Republication and Revival of Wills
• Republication is the process of re-establishing a will,
which has become useless because it was void or has
been revoked. (Art. 835)
• Republication may be made by:
• 1. Re-execution of the original will;
• 2. Execution of a codicil.
Distinction between republication and revival …

• Republication is an act of the testator, while

revival is through operation of law.
• Example of revival: A testator made a first
will. Afterwards, the testator makes a
second will impliedly revoking the first. If
the second will is revoked or found to be
invalid, the first will is revived. There is no
more need of making another will. (Doctrine
of Dependent Relative Revocation)
Allowance and Disallowance of Wills
• The probate of the will by the Probate Court is done after
the death of the testator.
• However, the testator can apply for probate of his own will
while still alive, but after being allowed, he cannot make
another will involving the same property.
• The partition of property in a will can not be implemented
without first being probated in court. (Art. 838)
• The probate court has jurisdiction in the allowance or
disallowance of wills.
• Where are the probate courts in Bohol?
A will is disallowed under the following
circumstances…
• (1) If the formalities required by law have not been complied
with;
• (2) If the testator was insane, or otherwise mentally incapable of
making a will, at the time of its execution;
• (3) If it was executed through force or under duress, or the
influence of fear, or threats;
• (4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other person;
• (5) If the signature of the testator was procured by fraud;
• (6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing his
signature thereto.
• Art. 839
Institution of heir
• Read Art. 840 to Art. 856.
• Institution of heir – an act of the testator in naming and
assigning of voluntary heirs to receive the inheritance
from the free portion. (Art. 840)
• Institution pertains to the free portion, thus, heirs instituted
to receive the free portion are called voluntary heirs.
• “I give my Mercedes Benz to my driver.”
• There is no need of instituting a compulsory heir to the
legitimes. This is mandated by law.
• If there is no institution of heir, then intestate succession
happens with regards to the free portion.
Institution of heirs
• Take note that institution of heirs apply only to legacies
and devises (free portion) - 50% of his estate.
• Why? Because the testator has NO CONTROL over the
LEGITIMES.
• The legitimes is protected by law and shall only be given
only to the compulsory heirs.
Preterition of heirs
• Article 854. The preterition or omission of one, some, or
all of the compulsory heirs in the direct line, whether living
at the time of the execution of the will or born after the
death of the testator, shall annul the institution* of heir; but
the devises and legacies shall be valid insofar as they are
not inofficious**.
• If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without prejudice
to the right of representation.
• * Institution of heir - free portion only
• **Inofficious – when the free portion is more than 50% of
the estate, thus, compromising the legitimes.
Preterition of heirs
• What if, during the lifetime of the
testator, the preterited heir received
donation from the former.
• If the share is minimal, the heir can
ask for the completion of his legitime.
• If his share is equal to his legitime, he
cannot ask for more. (Reyes vs. Barreto-
Datu, 19 SCRA 85)
Substitution of heirs
• Art. 857 – Substitution is the appointment
of another heir so that he may enter into
the inheritance in default of the heir
originally instituted.
• Substitution of heir pertains only to the free
portion.
• This cannot be done with the legitimes
because they are reserved for the
compulsory heirs.
Substitution of heirs…
• 1.Simple or common;
• 2. Brief or compendious;
• 3. Reciprocal; or
• 4. Fideicommisary.
• Read Arts. 858 to 870 (this is about
substitution)
Substitution
• Art. 859 The testator may designate one or more
persons to substitute the heir or heirs* instituted in
case such heir or heirs should (1) die before him
[predecease], or (2) should not wish [renunciation], or
(3) should be incapacitated to accept the inheritance.
• Substitution pertains to the free portion only, not to the
legitimes.
• *Simple or common substitution.
Substitution
• Brief or compendious substitution
• Art. 860 - Two or more persons may be substituted for
one; and one person for two or more heirs.
• Brief substitution – when two or more take the place of
one.
• Compendious substitution – when one takes the place of
two or more.
Substitution
• Reciprocal substitution
• Art. 861 - If heirs instituted in unequal shares should
be reciprocally substituted, the substitute shall acquire
the share of the heir who dies, renounces, or is
incapacitated, unless it clearly appears that the
intention of the testator was otherwise. If there are
more than one substitute, they shall have the same
share in the substitution as in the institution.
Substitution
• Fideicommissary substitution
• Art. 863 - A fideicommissary substitution by virtue of which the
fiduciary or first heir instituted is entrusted with the obligation
to preserve and to transmit to a second heir the whole or part of
the inheritance, shall be valid and shall take effect, provided
such substitution does not go beyond one degree (parent or
children) 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. (Rabadilla vs. CA,
et al., G.R. 113725, June 29, 2000)
• Analogous to Trust.
Fideicommissary substitution
• Testator institutes the Fiduciary – first heir instituted.
• Task of the fiduciary: he is entrusted with the obligation to preserve
and to transmit to a second heir the whole or part of the inheritance.
• Conditions:
• 1. the substitution does not go beyond one degree (parent or
children) from the heir originally instituted.
• 2. the fiduciary or first heir and the second heir are living at the time
of the death of the testator.
• Analogous to Trust:
• Trustor – testator
• Trustee – fiduciary
• Beneficiary – second heir
Prelims next meeting
• From the start - Art. 774 to Art. 870 of the Civil
Code
How to answers questions in the exams
ESSAY TYPE OF QUESTION:
1. Answer directly. (Yes, no, it depends).
2. 2. Support your answer by citing the law, jurisprudence
or doctrine.
3. Cite the facts in the question related to your answer.
4. Conclusion.
• Question: Juan owns a land in Dauis,
Bohol. Juan has three children: Peter, Mary
and Paul. Juan made a will dividing his land
into three equal parts for his three children.
After the will was notarized, Peter sold his
share to Daniel, a stranger. Peter contented
that, in principle, he acquired his share by
virtue of the will executed by Juan. Is the
sale valid? Support your answer.
Suggested answer
• Answer directly: No.
• Support your answer by citing the law: Succession takes
effect upon the death of the testator or decedent.
• Cite the facts in the question related to your answer: In the
question, Juan the testator was still alive when Peter sold
his share to Daniel.
• Conclusion: Hence, the right of Peter to the property is still
inchoate because his ownership over the same takes
effect upon the death of Juan. While Juan is still living, he
can revoke, alter or modify his will because a will is
ambulatory.
Midterms

CONDITIONAL TESTAMENTARY
DISPOSITIONS and
TESTAMENTARY DISPOSITIONS
WITH A TERM
• Terms and conditions can be imposed in the
giving of the inheritance.
• However, this only applies to the free
portion.
• The legitimes are given without any
condition. (Art. 872)
• If a condition is imposed on the legitime, it
shall be considered as not imposed. (Art.
872)
• However, the Civil Code allows one
condition on the legitime.
Conditions can be made on the legitimes
• The testator can prohibit the sale or division of his
property after his death. But the law provides that the
period must not exceed twenty (20) years.
• Article. 1083, CC
• Article 870, CC
• Article 494, CC
• Hence, the heirs may demand partition of the estate after
the twenty-year-term.
• The right to demand partition does not prescribe.
Terms and conditions
• Condition refers to events which will
happen.
• Term refers to the arrival of a certain time,
and
• Modal Institution is when an institution is
made for a certain purpose or cause.
Impossible conditions
• Article 873. Impossible conditions and those contrary to law or
good customs shall be considered as not imposed and shall in
no manner prejudice the heir, even if the testator should
otherwise provide.
• Example of impossible condition: I will give you a legacy of one
hectare of land in Tagbilaran City if Fernando Poe, Jr. will
resurrect.
• Example of a condition which is contrary to law or good
customs: I will give you a devise of P100,000,000.00 if you kill
Leila Trillanes.
• In the given examples, only the condition is considered as not
imposed. The legacy and devise are valid in so far as it is not
inofficious.
Condition not to marry…
• Read Art. 874.
• This is allowed by law.
• Who are those persons allowed to impose this condition?
• 1. By the deceased spouse;
• 2. By the ascendants or descendants of the deceased
spouse.
• “My wife, Cristina cannot receive her device of one
hectare of agricultural land, if she marries again after I
die.”
• This prohibition is applicable to the free portion only.
• Even with the non-compliance of the condition, Cristina
can still get her share of the legitimes.
Condition not to marry
• Absolute prohibition not to marry: “I will give you a
legacy of P10M if you will not marry.”
• This is invalid because it is contrary to morals and
good customs. Only the condition is considered not
written. (Morente vs. Dela Santa, 9 Phil. 387)
• Relative prohibition not to marry: “I will give you a
legacy of one-hectare-agricultural land if you will not
marry Pedro, the son of my political opponent.”
• This is valid. The land is acquired at once but the
ownership ceases if the heir marries Pedro.
(Resolutory condition)
Disposition captatoria
• Article 875. Any disposition made upon the condition that
the heir shall make some provision in his will in favor of
the testator or of any other person shall be void.
• This is disposition captatoria and is considered void
because it tends to make the making of the will a
contractual act. The disposition itself is void, not just the
condition.
• Example: “I will give you a legacy of P10M, if in your
will, you will also give me a devise of five hectares of
agricultural land.” The disposition or institution is void.
A condition not complied with (Art. 883)
• Art. 883, 2nd par.
• Anton instituted Jack, his gardener, a BMW car if the latter
passes the bar exams in 2018.
• Hector, son of Anton, was infuriated.
• On October 31, 2018, before the start of the bar month,
Hector hired a group of by-standers in order to physically
beat Jack. Jack was badly injured, he was not able to take
the bar exams.
• Will Jack get his legacy?
• Yes. There was constructive fulfillment. If the person interested in
the condition should prevent its fulfillment, without the fault of
the heir, the condition shall be deemed to have been complied
with.
Terms and conditions…
• Read Art. 871 to 885 with regards to terms and conditions
allowed by law.
• What is Caucion Muciana?
• The bond or security given in favor of those who would
get the property if the condition is not complied with. (Art.
879)
• Article 884. Conditions imposed by the testator upon the
heirs shall be governed by the rules established for
conditional obligations in all matters not provided for by
this Section.
• Suspensive condition vs. Resolutory condition.
• Suspensive condition: “I will give you a car if you will
pass the bar exams next year.”
• Resolutory condition: “I will give you a car if you will not
marry Pedro.”
• Suspensive – the acquisition of the thing is suspended. It is
not demandable at once and it has to wait for the
happening of an event or term.
• Resolutory – the thing is demandable at once but will cease
upon the happening of an event or term.
Suspensive condition vs. resolutory condition
Suspensive condition Resolutory condition
The object is not The object is demandable
demandable at once, hence, at once.
it is suspended. But the happening of an
The object is demandable event will extinguish the
upon the happening of an obligation.
event. “I will give you my car
“I will give you my car if now provided you will not
you pass the bar exams marry Pedro”.
next year”. If she marries Pedro, the
car shall be returned.
Assignment

•Draft your last will and

testament. Submit next
meeting.
•It must be handwritten.
LEGITIMES
• Art. 886 – Legitimes is that part of the
testator’s property which he cannot
dispose of because the law has reserved
it for the compulsory heirs.
• Refer to page 304 of Paras textbook about
compulsory heirs.
Art. 887
• Compulsory heirs in testamentary
succession:
• Legitimate or illegitimate descendants.
• An adopted child is considered
legitimate child.
• Surviving spouse
• Legitimate or illegitimate ascendants
Compulsory heirs (Legitimes)
Surviving Legitimate Surviving Illegitimate Legitimate Illegitimate
relatives children and spouse children parents and
descendants ascendants parents
1. Legitimate 1/2 (divided None None none none
children (alone) by no. of
children
(from the
legitimes)

2. One legitimate 1/2 1/4 none none none

child and (legitimes) (to be taken
surviving spouse from the
free portion)

3. Two or more 1/2 Same as 1 1/2 of each none none

legitimate children, legitimate legitimate
surviving spouse and child (to be child (to be
illegitimate children taken from taken from
the free the free
portion) portion)

4. Surviving spouse none 1/3 1/3 none none

and illegitimate
children
Compulsory heirs
Surviving Legitimate
children and
Surviving Illegitimate Legitimate Illegitimat
relatives spouse children parents and e parents
descendants ascendants
5. Legitimate parents (or none 1/8 1/8 1/2 none
ascendants), surviving
spouse and illegitimate
children
6. Legitimate none none none 1/2 none
parents (alone)
7. Illegitimate none none 1/2 none None
children (alone)
8. Surviving spouse none 1/2 or 1/3* none none none
(alone)
9. Legitimate parents none 1/4 none 1/2 none
and surviving spouse
10. Illegitimate parents none none none none 1/2
(alone)
11. Illegitimate parents none 1/2 none none 1/4
and surviving spouse
*Surviving spouse (alone) 1/2 or 1/3
• Art. 900
• 1/2 - if the only survivor is the widow or
widower.
• 1/2 - if the couple were married in articulo mortis
and they have been living as husband and wife
for more than five years.
• 1/3 - if the couple were married in articulo
mortis and the testator died within three months
from the time of marriage (there is no marital
cohabitation of five years).
Reserva Troncal
• Article 891. The ascendant who inherits from his
descendant any property which the latter may have
acquired by gratuitous title from another ascendant, or
a brother or sister, is obliged to reserve such property
as he may have acquired by operation of law for the
benefit of relatives who are within the third degree and
who belong to the line from which said property came.
Reserva troncal (Art. 891)
• Al, the father, gives gratuitously a hectare of land to Ben
his son.
• Al died.
• A year after the death of Al, Ben died.
• Joy, the mother of Ben, inherited the land by operation of
law. (intestate succession)
• The property is reservable (under reserva troncal).
• After the death of Joy, the legitimate relatives of Ben
within the third civil degree will claim the land.
• Hence, Joy possesses the property as a usufruct.
• ORIGIN – the ascendant, brother or sister who gave
the property gratuitously to the PROPOSITUS.
• In the example given, the Origin are the following: (1)
Al, the father of Ben, or (2) the brother of Ben or (3)
the sister of Ben.
• PROPOSITUS – the descendant of the father or the
sibling of the brother or sister. (Ben)
• RESERVISTA – the ascendant who acquired the
property from the descendant by operation of law.
(Joy)
• RESERVATARIOS – the legitimate relatives of the
Propositus within the third degree civil relationship.
(Relatives of Ben)
 LEGITIMATE
RELATIVES OF BEN
WITHIN THE THIRD
CIVIL DEGREE
JOY - MOTHER
(RESERVATARIOS)
(RESERVISTA)

AL - FATHER
(ORIGIN)

Brother or
BEN - SON
sister of Ben
(PROPOSITUS)
(ORIGIN)
Reservista
• Can the reservista alienate the reservable property?
• Or, may the property subject to reserva troncal be
alienated?
• In Lunsod vs. Ortega, 46 Phil. 664, the Supreme
Court ruled that the reservista can alienate the land,
provided, that she reimburses the reservatarios.
What if the reservista has registered the property
under his name?
• The reservatarios must object or protest in the
registration process at the DENR/ROD before the
issuance of the title.
• How about if the title has been issued in the name of
the reservista?
• In De Los Reyes vs. Paterno, 34 Phil. 420, the
Supreme Court ruled that the reservatarios must file
a claim to the reservable property one year after the
issuance of the title otherwise they are banned from
doing it. (citing Section 38, Act No. 496 – The Land
Registration Act)
Reserva Troncal
• The Reservatarios must be legitimately
related to the propositus within the third
civil degree relationship.
• Illegitimate relationships are not allowed.
• Nieva vs. Alcala, 41 Phil. 915
• Gonzales vs. Court of First Instance, L-
34396, May 19, 1981
CONDITIONS IN A WILL - Art. 904 (please read)

• The testator cannot impose any burden,

encumbrance, conditions or substitution on the
legitimes.
• The conditions, burden, etc. are only applicable
to the free portion.
• Can a testator deprive his compulsory heirs of
their legitimes?
• Read in advance – Art. 915 to 922
(Disinheritance).
Renunciation
• Article 905. Every renunciation or compromise as
regards a future legitime between the person owing it
and his compulsory heirs is void, and the latter may
claim the same upon the death of the former; but they
must bring to collation whatever they may have
received by virtue of the renunciation or compromise.
• Hence, future legitimes cannot be renounced.
Renunciation
• Article 1051. The repudiation of an
inheritance shall be made in a public or
authentic instrument, or by petition
presented to the court having jurisdiction
over the testamentary or intestate
proceedings.
• Borromeo-Herrera vs. Borromeo, GR No.
41171, July 23, 1987
Renunciation
• A person cannot renounce future inheritance.
(Uson vs. del Rosario, L-4963, 1-29-63)
• Nemo dat quod non habet - a person cannot
give what he does not have.
• The person’s right on the inheritance is
inchoate, while the testator/decedent is living.
• Succession takes effect upon the death of the
testator/decedent.
Renunciation
• Renunciation takes effect upon the death of the
testator/decedent, hence, a future inheritance
cannot be renounced.
• The renouncer is required to make his
renunciation in writing complying with the
formalities required by law. (Art. 1051)
• (Just like making a notarial or holographic will).
• It shall also be probated.
Collation
• Read in advance Art. 1061 to 1077.
• Collation is the process of bringing back the property and
rights into the mass of the estate of the testator/decedent
which the heir has received during the lifetime of the
testator/decedent.
• The acquisition of the property or rights is gratuitous.
• It may be in a form of donation.
• The purpose of collation is to compute the property and
rights acquired during the lifetime of the testator/decedent
in order to determine the inheritance of each heir.
Art. 909
• Donations given to the
children shall be charged to
their legitimes.
• Donations to strangers shall
be charged to the free
portion.
Art. 908 (how to determine the NET
HEREDITARY ESTATE)
• First, determine the property on hand (liquid
assets).
• Second, add the collectibles (credits).
• After adding the liquid assets and the credits –
deduct the payables (taxes, loans or damages
made by the testator).
• From this net hereditary estate, the
executor/administrator can proceed with the
partition of the estate to the heirs.
Computation (Net Hereditary Estate)
• Liquid Assets of the testator/decedent: P1,000,000.00
• plus (+) Credits (collectibles) P1,000,000.00
• Total: Gross assets P2,000,000.00
• Minus (-) Liabilities (taxes, loans, damages) P500,000.00
Total Net Assets (Hereditary Estate) P1,500,000.00
Art. 950
• Donations to strangers shall be charged to the free portion.
• If the estate should not be sufficient to cover the legacies and
devises, their payment shall be made in the following order
(preference):
• 1. Remuneratory legacy or devise; (I give to Johnny P500,000.00
as payment for my loan;
• 2. Legacies and devises declared by the testator as preferential;
• 3. Legacies for support;
• 4. Legacies for education;
• 5. Legacies or devises of a specific, determinate thing which
forms part of the estate.
• 6. All others pro rata.
• KEYWORD: RPSESA
Art. 912
• If the property (in the free portion) subject to reduction
should consist of a real property not capable of division,
the following rules are to be followed:
• 1. The indivisible property shall go the devisee if the
reduction does not absorb one-half of its value;
• 2. If the reduction is more than one-half of the value, the
property shall go to the compulsory heir;
• But the devisee and the compulsory heir shall reimburse
each other in cash for what respectively belongs to them.
• The devisees or legacies may acquire the entire free
portion, provided it does not exceed the free portion and
compromise the legitimes.
Property which cannot be conveniently divided…
Art. 913 (please read)
• Example: Vic owns a house (indivisible property) with a
value of P2M was devised to Alvin, Vic’s close friend but
because it is excessive, it has to be reduced to
P800,000.00. The house should go to Alvin but if Alvin
does not want the house, the compulsory heirs of Vic can
get the house and just pay Alvin P1.2M. Should the heirs
do not want to make use of it, the house shall be sold at
public auction at the instance of any interested parties,
and divide the proceeds accordingly.
• If the house is sold to Pedro for P2M, Alvin gets
P800,000.00 and the heirs get P1.2M.
DISINHERITANCE
• Art. 915 – A compulsory heir may be disinherited of his
legitime for causes expressly stated by law.
Requisites for a valid disinheritance
• 1. Must be made in a valid will (Art. 916)
• 2. Must be expressly made. (Art. 918)
• 3. Must be for a legal, true and existing cause (Art. 917,
918)
• 4. The cause must be stated in the will. (Art. 918)
• 5. The disinherited heir must be clearly identified.
• 6. The will must not have been revoked – in so far as the
disinheritance is concerned.
• 7. The burden of proof rests on those who allege the
disinheritance. (Art. 917)
• 8. The will disinheriting the heir must be probated. (Dy
Yieng Seangio vs. Reyes, GR No. 140372-72, Nov. 26, 2006)
Defective disinheritance
• Article 918. Disinheritance without a specification
of the cause, or for a cause the truth of which, if
contradicted, is not proved, or which is not one of
those set forth in this Code, shall annul the
institution of heirs insofar as it may prejudice the
person disinherited; but the devises and legacies
and other testamentary dispositions shall be valid
to such extent as will not impair the legitime.
Disinheritance of children and descendants Art.
919
• (1) When a child or descendant has been found guilty of an attempt against
the life of the testator, his or her spouse, descendants, or ascendants;
• (2) When a child or descendant has accused the testator of a crime for which
the law prescribes imprisonment for six years or more, if the accusation has
been found groundless;
• (3) When a child or descendant has been convicted of adultery or
concubinage with the spouse of the testator;
• (4) When a child or descendant by fraud, violence, intimidation, or undue
influence causes the testator to make a will or to change one already made;
• (5) A refusal without justifiable cause to support the parent or ascendant
who disinherits such child or descendant;
• (6) Maltreatment of the testator by word or deed, by the child or descendant;
• (7) When a child or descendant leads a dishonorable or disgraceful life;
• (8) Conviction of a crime which carries with it the penalty of civil
interdiction.
Disinheritance of parents and ascendants Art. 920
• Article 920. The following shall be sufficient causes for the disinheritance of
parents or ascendants, whether legitimate or illegitimate:
• (1) When the parents have abandoned their children or induced their daughters
to live a corrupt or immoral life, or attempted against their virtue;
• (2) When the parent or ascendant has been convicted of an attempt against the
life of the testator, his or her spouse, descendants, or ascendants;
• (3) When the parent or ascendant has accused the testator of a crime for which
the law prescribes imprisonment for six years or more, if the accusation has
been found to be false;
• (4) When the parent or ascendant has been convicted of adultery or
concubinage with the spouse of the testator;
• (5) When the parent or ascendant by fraud, violence, intimidation, or undue
influence causes the testator to make a will or to change one already made;
• (6) The loss of parental authority for causes specified in this Code;
• (7) The refusal to support the children or descendants without justifiable cause;
• (8) An attempt by one of the parents against the life of the other, unless there
has been a reconciliation between them.
Disinheritance of a spouse Art. 921
• Article 921. The following shall be sufficient causes for disinheriting
a spouse:
• (1) When the spouse has been convicted of an attempt against the
life of the testator, his or her descendants, or ascendants;
• (2) When the spouse has accused the testator of a crime for which
the law prescribes imprisonment of six years or more, and the
accusation has been found to be false;
• (3) When the spouse by fraud, violence, intimidation, or undue
influence cause the testator to make a will or to change one
already made;
• (4) When the spouse has given cause for legal separation;
• (5) When the spouse has given grounds for the loss of parental
authority;
• (6) Unjustifiable refusal to support the children or the other spouse.
Art. 918 (Defective Disinheritance)
• Invalid, ineffective or illegal cause:
• 1. Without giving the cause (no cause stated in the will);
• 2. A cause denied by the disinherited heir and is not
proven in court;
• A cause not enumerated under Art. 919 (children and
descendants); Art. 920 (parents or ascendants); and Art.
921 (spouse).
• Please read Art. 919 – 921.
Briefly distinguish an ineffective disinheritance from preterition.

• An ineffective disinheritance is one wherein the grounds for

disinheritance are not stated therein or there may be grounds
stated therein but are not proven or which are not among those
enumerated in the Civil Code, or where there is a subsequent
reconciliation;
• while preterition refers to the complete omission of a
compulsory heir in the descending line intentionally or
unintentionally. (Art. 918) [Acain vs. IAC, GR No. 72706, Oct.
27, 1987]
• Preterition may be intentional or unintentional (Paras p.215)
What is the consequence if there is defective
disinheritance?
• Article 918. Disinheritance without a specification of
the cause, or for a cause the truth of which, if
contradicted, is not proved, or which is not one of
those set forth in this Code, shall annul the
institution of heirs insofar as it may prejudice the
person disinherited; but the devises and legacies
and other testamentary dispositions shall be valid
to such extent as will not impair the legitime.
What will happen if one descendant is preterited?
• Article 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall
annul the institution of heir; but the devises and legacies shall
be valid insofar as they are not inofficious*. (JLT Agro vs.
Balansag, GR No. 141882, March 11, 2005)
• If the omitted compulsory heirs should die before the testator, the
institution shall be effectual, without prejudice to the right of
representation.
• *Inofficious legacy or devise – the legacy or devise exceeds the
free portion, thereby compromising the legitimes.
Preterition
• What is the effect if the preterited heir was given
donation?
• If the heir was given a donation during the lifetime of the
testator, there is no preterition. If the share is minimal, the
heir can ask for the completion of his share. The share will
be taken from the free portion.
• Reyes vs. Barreto-Datu, 19 SCRA 85
Adopted child
• Under Sec. 19, RA 8552, the adoptive parents cannot
revoke the decree of adoption.
• The right is granted only to the adopted child.
• The adopted child is wayward in his lifestyle (drugs,
alcohol, gambling, womanizing). The parents come to you
asking for advice.
• What will be your advice?
Adopted child
• Alfred has a son, Ben. Ben adopted Charles. Ben died
intestate.
• Can Charles represent Ben in the inheritance from Alfred?
• No. The legal relationship is confined only to the
adopting parent and the adopted child and does not
extend to the parent of the adopter. (Rosales vs.
Rosales, GR No. L-40789, Feb. 27, 1987)
Adopted child
Franz legally adopted Joseph whose biological parents,
Juan and Maria, are still alive. Joseph won in a lotto draw in
the amount of P10,000,000.00. Joseph deposited the said
amount with the bank. One night, a band of robbers
unlawfully entered the house of Franz and Joseph, with the
hope that the money was with Joseph in the house.
Sensing that their efforts were futile, the robbers shot Franz
and Joseph. Franz survived but Joseph died. Who shall
inherit the property left by Joseph?
Will it be Franz?
Or will it be the biological parents, Juan and Maria?
Adoption…
Both Franz and the biological parents of Joseph shall inherit.
When the parents, legitimate or illegitimate, or the legitimate
ascendants of the adopted concur with the adopters, they shall
divide the entire estate, one-half to be inherited by the parents or
ascendants and the other half by the adopters. (Art. 190, Family
Code)
Adoption
Is a mere “ampon” (sinagop in Bisaya), be
an heir of the adoptive parents?
No. The adoption must be legal.
Manuel vs. Ferrer, GR No. 117246, Aug. 21,
1995.
Art. 922 (please read)
• Disinheritance between the
testator/decedent and the disinherited heir
can be cured by a subsequent reconciliation.

• Disinheritance can be cured by reconciliation

and by the making of another will.
• A will of disinheritance shall be probated.
Legacies and devises
• Legacy pertains to a gift of
personal property;
• Devise pertains to gift of real
property.
• Read Art. 924 – 959 (Rules in
Legacy and devise)
Art. 956
• ISRAI (Institution, Substitution, Representation, Accretion,
Intestacy)
• If there is no institution of heirs, we must look if there is
substitution.
• If there is no substitution, we must look for representation.
• If there is no representation, we must look for accretion.
• If there is no accretion, intestacy shall apply.
The legacy or devise shall be without effect (Art.
957)
• 1. Transforms the property.
• 2. Alienates the property.
• 3. If the thing is totally
lost.
 Let have our
MIDTERMS next
meeting.
LEGAL OR INTESTATE SUCCESSION
• Art. 960:
• 1. If a person dies without a will;
• 2. Or having made one but it is void or has subsequently lost its
validity;
• 3. When a will does not institute an heir (the free portion shall
be partitioned under intestate succession);
• 4. If a condition attached to the devise or legacy does not
happen or is not fulfilled;
• 5. If the voluntary heir predeceases the testator;
• 6. If the heir renounces the inheritance;
Relationship (collateral line)
C
Grandfather
grandfather
(2)

B - father D
(1) your uncle
(3)

E
A Your 1 st
cousin
(YOU) (4)
Relationship (Direct line)

A
(2)

B
(1)

C
(YOU)

D
(1)

E
(2)
Accretion
• Article 1015. Accretion is a right by virtue of
which, when two or more persons are called to
the same inheritance, devise or legacy, the part
assigned to the one who (1) renounces or (2)
cannot receive his share, or (3) who died before
the testator, is added or incorporated to that of
his co-heirs, co-devisees, or co-legatees.
• 1. Renunciation;
• 2. Incapacity; and
• 3. Predecease.
Art. 1015 (Accretion)

Testator/decedent

A B C
(P1M) (P1M) (P1M)
ORDER OF INTESTATE SUCCESSION
• Art. 978
• 1. Direct descending line/surviving spouse.
• (Adopted children are considered legitimate children).
• 2. Ascendants.
• 3. Collaterals (brothers, sisters).
• 4. Illegitimate children get half of the share of one
legitimate child.
Collateral relatives
• Article 1010. The right to inherit ab intestato shall
not extend beyond the fifth degree of relationship in
the collateral line.
• Compare with Article 972. …xxx…In the collateral line,
it (representation) takes place only in favor of the
children of brothers or sisters, whether they be of the
full or half blood.
• Hence, a grandniece cannot inherit by way of
representation. (Salao vs. Salao, 70 SCRA 65)
• But a grandniece can inherit by way of intestate
succession through donation. (Art. 1010)
Fifth civil degree relationship
(2)
Grandfather

(3)
(1) Uncle
Father

(4)
Niece

Decedent

(5)
grandniece
Please refer to page 534 Paras
(Intestate succession)
Survivors Legitimate Illegitimate Surviving Legitimate Illegitimate Brother, Other
children and children and spouse parents and parents sisters, collateral
descendants descendants
ascendants nephews, relatives
nieces

Legitimate To be divided 1/2 of the x x x x X

children and equally share of one
illegitimate legitimate
children child

Surviving same same Same as one x x x X

spouse/legiti legitimate
mate or child
illegitimate
children
Illegitimate x 1/4 1/4 1/2 x x x
children,
surviving
spouse and
legitimate
parents
Legitimate x x 1/2 1/2 x x x
parents and
surviving
spouse
Intestate succession . . .
Survivors Legitimate Illegitimate Surviving Legitimate Illegitimate Brothers, Other
children children spouse parents parents sisters, collaterals
and
nephews,
ascendant
s nieces

Surviving x x 1/2 x 1/2 x X

spouse
and
illegitimate
parents

Surviving
spouse,
x x 1/2 x x 1/2 x
brothers,
sisters,
nephews,
nieces
Art. 992 (Iron Barrier)
• An illegitimate child has no right to inherit ab intestato from the
legitimate children and relatives of his father or mother and vice-
versa.

A
Father

X Y Z
(Legitimate child
(legitimate (Illegitimate child
of A, single
child of A) of A)
without issue)

• If Y dies ahead of A, only X will get the share of Y.

• If X dies ahead of A, the heirs of X gets the inheritance by way of
representation.
• If X has no heir, only Y inherits..
But Z can inherit from A. Z’s share
is one half of the share of X and Y.

Moreover, the heirs of Z can inherit

from A by way of representation.
(Aquino vs. Aquino, G.R. 208912/G.R.
209018, Dec. 2022)
In Aquino vs. Aquino, the SC re-interpreted
Art. 992 of the Civil Code.
This interpretation is not against Art. 992.
The SC has allowed “non-marital” children
to inherit from direct ascendants.
What the “iron curtain” has prohibited is
that, an illegitimate child has no right to
inherit ab intestato from the legal children.
Aquino case
Miguel

Rodulfo Arturo

Angela

(In this case, Angela was not able to prove his filiation with Arturo)
(Arturo predeceased Miguel before Angela was born)
But in the case of Aquino, Angela can receive her inheritance from Miguel by
way of representation.
Rodulfo and Arturo were legitimate children of Miguel.
Thus, the iron barrier still exists between legitimate and illegitimate children.
What if, X and Y die?
• Will accretion take place? (meaning Z will inherit).
• No. It is clearly stated in Art. 992 that illegitimate child has no
right to inherit ab intestato from the legitimate children and
relatives of his father or mother and vice-versa. (De la Puerta vs.
CA, Feb. 6, 1990)
• What will happen to the property of X and Y?
• The property of X and Y shall go to their heirs, if any, by way of
representation.
• If X and Y have no heirs, the property will go to the collateral
relatives of X and Y (nephews and nieces) up to the fifth civil
degree relationship (Art. 1010)
• If there are no such relatives, the property will be owned by the
State, through escheat proceedings. (Art. 1011)
Iron Barrier/Iron Curtain
• (This is still in effect).
• What if, Z predeceased A, X and Y?
• The inheritance will go to the heirs of Z.
• What if, Z had no heirs (without issue and the parents
have died)?
• The inheritance will go to the collateral relatives of Z (half
brothers and sisters*, nephews, nieces) up to the fifth civil
degree. (Art. 1010, CC)
• *his brothers and sisters of the other parent.
• Amadea Angela K. Aquino Vs. Rodolfo C. Aquino and
Abdulah C. Aquino/Rodolfo C. Aquino Vs. Amadea
Angela K. Aquino
• G.R. No. 208912/G.R. No. 209018. December 7, 2021

“Children, regardless of their

parents’ marital status, can now
inherit from their grandparents and
other direct ascendants by right of
representation.”
 A

X Y Z

O
Art. 993 Inheritance by illegitimate parents
• Victoria had an illegitimate child, Hudson.
• If Hudson dies, Victoria is the lone heir.
• However, if the filiation of Henry and Hudson was
proved in court, Victoria and Henry shall inherit in
equal shares.
Filiation between an illegitimate child and
illegitimate father
• If the illegitimate child possesses an authentic record of
birth with the acknowledgement of the father, the child can
file his filiation anytime.
• But if the child possesses only evidence found in Sections
42 and 43, Rule 130, of the Rules of Court, (such as the
open and continuous possession of the status of a child)
the action should be filed during the lifetime of the alleged
parent in order that the alleged father can defend himself.
(Art. 172, 175, Family Code).
• Hrs of Alejandra Arado, et al vs Alcoran et al., GR No.
163332 July 8, 2015
Sections 42 and 43 of the Rules of Court
• Section 42, Rule 130 - Act or declaration about pedigree.
— The act or declaration of a person deceased, or unable
to testify, in respect to the pedigree of another person
related to him by birth or marriage, may be received in
evidence where it occurred before the controversy, and
the relationship between the two persons is shown by
evidence other than such act or declaration. The word
"pedigree" includes relationship, family genealogy, birth,
marriage, death, the dates when and the places where
these facts occurred, and the names of the relatives. It
embraces also facts of family history intimately connected
with pedigree.
Section 43…
Family reputation or tradition regarding pedigree. — The
reputation or tradition existing in a family previous to the
controversy, in respect to the pedigree of any one of its
members, may be received in evidence if the witness
testifying thereon be also a member of the family, either by
consanguinity or affinity. Entries in family bibles or other
family books or charts, engravings on rings, family portraits
and the like, may be received as evidence of pedigree.
Per stirpes vs per capita (Art. 1005)
A
P3M

X Y Z
P1M P1M P1M

O P Q R S
THE STATE
THE STATE
• Art. 1011 – In default of persons
entitled to succeed in accordance
with the law on succession, the
State shall inherit the whole estate.
• Read Rule 91, Rules of Court –
ESCHEATS.
Who will inherit the property?
• Art. 1013:
• Personal property – to the municipality or city where the
decedent last resided in the Philippines.
• Real property – to the municipality or city where the
property is situated.
• Purpose: for the benefit of public schools, charitable
institutions.
Art. 1014 (a legal heir appears)
• A legal heir must file its claim within five years from the
date the property was delivered to the State.
• Such person is entitled to the whole property.
• If the property is sold by the State, the heir only gets such
part of the proceeds which has not been lawfully spent.
Perpetual trust
• In escheats, there is a perpetual trust between the State
and the Local Government Unit (LGU).
• The trustor is the State.
• The trustee and the beneficiary is the LGU.
• It is perpetual because no term or period is required.
• Perpetual trust means that the real property escheated to the
State shall not be sold or conveyed but the State through the
Local Government Unit (LGU) which is the beneficiary of the
escheat, shall receive the fruits of the property. The trustor is
the State and the trustee is the LGU. The beneficiaries are the
State and the LGU. (Art. 1013)
• Orendain vs. Trusteeship of the Estate of Doňa Margarita Rodriguez, GR
No. 168660, June 30, 2009.
Provisions Common to Testate and Intestate
Succession
•Right of Accretion (we have
discussed this in the
prelims).
•Read Art. 1015 – 1023
(Accretion)
Capacity to succeed
• Article 1025. In order to be capacitated to inherit, the heir,
devisee or legatee must be living at the moment the
succession opens, except in case of representation, when
it is proper.
• A child already conceived at the time of the death of the
decedent is capable of succeeding provided it be born
later under the conditions prescribed in article 41.
Capacity/Incapacity to Succeed
• Bar Question: Spouses Mike and Rita spent one weekend
in a beach resort. Rita was about to give birth to a child.
The following morning, police found three bodies at the
resort. A baby boy who was lying beside Rita. Rita who
was dead and Mike who was seriously injured. Robbers
ransacked the resort the night before. Three days after,
the baby died. Mike survived. A week before the incident,
Rita constituted a life insurance and the beneficiary was
the unborn fetus.
• Is the insurance policy valid?
• What will happen to the proceeds of the insurance?
Who are incapable of succeeding?
• Art. 1027
• 1. Priest
• 2. Relatives
• 3. Guardian
• 4. Attesting witnesses
• 5. Physician
• 6. Individuals
The following are incapable of succeeding by
reason of Unworthiness

• Article 1032. The following are incapable of succeeding by

reason of unworthiness:
• (1) Parents who have abandoned their children or induced
their daughters to lead a corrupt or immoral life, or attempted
• against their virtue;
• (2) Any person who has been convicted of an attempt against
the life of the testator, his or her spouse, descendants, or
• ascendants;
• (3) Any person who has accused the testator of a crime for
which the law prescribes imprisonment for six years or more,
• if the accusation has been found groundless;
Unworthiness…
• (4) Any heir of full age who, having knowledge of the violent death of
the testator, should fail to report it to an officer of the law within a
month, unless the authorities have already taken action; this
prohibition shall not apply to cases wherein, according to law, there
is no obligation to make an accusation;
• (5) Any person convicted of adultery or concubinage with the spouse
of the testator;
• (6) Any person who by fraud, violence, intimidation, or undue
influence should cause the testator to make a will or to
• change one already made;
• (7) Any person who by the same means prevents another from
making a will, or from revoking one already made, or
• who supplants, conceals, or alters the latter's will;
• (8) Any person who falsifies or forges a supposed will of the
decedent.
Prescription Period for the Filing of the Petition (in
escheat proceedings)

• Article 1040. The action for a declaration of

incapacity and for the recovery of the
inheritance, devise or legacy shall be
brought within five years from the time the
disqualified person took possession
thereof. It may be brought by anyone who
may have an interest in the succession.
Acceptance and repudiation of the Inheritance
• This was discussed in the prelims.
• Art. 1051 – The repudiation shall be made in a public and
authentic document;
• Or by a petition;
• And has to be probated in court.
Executors and administrators
• This was discussed in the prelims.
• Read Art. 1058 – 1060.
Collation (Art. 1061 – 1077)
• The act of bringing back to the mass of the estate,
property received by the heir during the lifetime
of the testator/decedent.
• The acquisition of the property during the lifetime
of the testator/decedent must be gratuitous
(donation).
• Purpose: To determine the actual value received by
the heir from the testator/decedent for purposes of
partition or division of property left by the
testator/decedent.
• The actual thing shall not be returned but only the
value of thing at the time of donation.
Not included in collation
• Property given by the grandparents to grandchildren.
• Hence, the parent shall not bring to collation property
directly given by his parent to his child. (Art. 1065)
• Expenses for support, education, medical attendance,
apprenticeship, ordinary equipment or customary gifts.
(Art. 1067)
Things subject to collation
• Things received by the children gratuitously during the
lifetime of the parent;
• Art. 1069
• Any amount paid by the parents to the following:
• 1. Debts of the children;
• 2. Election expenses by the child;
• 3. Fines; and
• 4. Similar expenses.
Collation
• In collation, the heir is not required to bring back the
actual property,
• Only the value of the property at the time of donation.
• If the property collated has been in the possession of one
heir, the other heirs must reimburse the latter on the
following expenses:
• 1. Necessary expenses and
• 2. Useful expenses.
• But not on luxurious expenses,
• Necessary expenses – expenses for the maintenance and
preservation of the thing.
• Useful expenses – expenses which increases the value of
the thing.
• Luxurious expenses – expenses for ornaments and
adornment.
Problem on Collation
Problem: Pascual died intestate leaving as heirs his brother
and sisters. Before, he died, he donated his properties to
his nephew. His brothers and sisters questioned the validity
of the donation to the nephew contending that it is
collationable. Decide.
Answer: The nephew owns the properties. There is no
collation because there is no more to collate. In his lifetime
Pascual donated the properties to his nephew.
(Amelia Arellano vs. Francisco Pascual, GR No. 189776,
December 15, 2010)
Partition of the Estate
Law which govern the partition of the estate of the
testator/decedent
• Article 16, CC. Real property as well as personal property is
subject to the law of the country where it is situated. However,
intestate and testamentary successions, both with respect to the
order of succession and to the amount of successional rights and
to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is
under consideration, whatever may be the nature of the property
and regardless of the country wherein said property may be
found.
• Miciano vs. Brimo 50 Phil. 867
• Quita vs. Dandan, GR No. 124862, December 22, 1998
• Art. 1039, CC
Partition of the Estate
• Process:
• 1. The executor or administrator (in
testamentary succession) shall determine
the net estate of the testator/decedent;
• 2. To determine the net estate, the debts of
the testator/decedent shall be deducted
from the total property or estate.
Two kinds of partition
• Extrajudicial partition – to be
agreed by the heirs.
• Judicial partition – if the heirs do
not agree on the partition, the
court will decide.
Mandatary
A mandatary is the person
entrusted to make the partition.
The mandatary should not be a
co-heir.
Partition
• The testator can prohibit the partition.
• The prohibition must be express.
• The prohibition period shall not exceed
twenty years.
• Art. 1083
• This is the only condition that a
testator can have with the legitimes.
Can an heir sell his property
before the partition?
Legal redemption by the heirs
If any heir sells his hereditary rights
to a stranger, the other heirs can
redeem the property within one
month from the time they were
notified in writing. (Art. 1088)
Judicial partition
• The right to demand partition
does not prescribe.
• Read Rules of Court – Rule 69
In Cua vs. Vargas, et al., G. R. No.
156536, October 31, 2006, the Supreme
Court affirmed the decision of the Court of
Appeals in the latter’s ruling that: “…the
Extrajudicial Settlement not participated by
all heirs is void and without any legal
effect”.
Partition
Problem:
Venancio had two marriages before he died (one
at a time). In his first marriage with Juana, they
had seven children. In his second marriage with
Salome, they had four children. How should the
estate be divided?
Partition
ANSWER:
The estate shall be partitioned in accordance with Articles
979 and 980 of the Civil Code.
Article 979. Legitimate children and their descendants
succeed the parents and other ascendants, without
distinction as to sex or age, and even if they should come
from different marriages.
Article 980. The children of the deceased shall always inherit
from him in their own right, dividing the inheritance in equal
shares.
How about the surviving spouses?
Partition
SURVIVING SPOUSE:
Article 996. If a widow or widower and
legitimate children or descendants are left, the
surviving spouse has in the succession the same
share as that of each of the children.
Petition for Partition is an action in rem
• Distinguish action in rem from action in
personam.
• Action in rem seeks to determine the status,
position or relation of a thing or person.
(Petition for partition, adoption, change of
name)
• Action in personam seeks to impose liability on
another person. (Specific performance,
collection of sum of money, ejectment)
Two kinds of action in personam
• Real action; and
• Personal action.
• Real action is one which seeks to determine the title,
ownership and possession of a real property.
(Recovery of property, recovery of possession,
ejectment…)
• Personal action is one which pertains to personal
property. (Collection of sum of money, small
claims…)
THANK YOU!
We will have our
FINAL EXAMS
next meeting!
Per stirpes stipulates that should a beneficiary
predecease the testator, that beneficiary's share
of the inheritance goes to their heirs. Per capita
takes the opposite approach: All inheritance is
divided equally amongst the testator's
beneficiaries.

What is an example of per stirpes per capita?

Under a per capita distribution, if all three
children predecease you, then the
grandchildren would each inherit an equal part.
If John had five children, Kevin had two and
Mary had one child – each grandchild would
each inherit 1/8 of the entire estate. With per
stirpes, grandchildren inherit their parent's
share.