Clarence Tiu Succession Notes Last Edit June2016

WILLS AND
SUCCESSION
COMPREHENSIVE NOTES
T HESE ARE MY NOTES FROM THE TEXTBOOK AND LECTURES OF P ROFESSOR R UBEN B ALANE . I ALSO
MADE REFERENCES TO THE RAM N OTES , C HAMP N OTES AND THE TEXTBOOK OF P ROFESSOR P ARAS .
Y OU CAN REFER TO P ARAS FOR EXAMPLES AND ILLUSTRATION OF THE RULES , IT WAS REALLY HELPFUL .
P ARDON FOR SIN AND A PEACE THAT ENDURETH ,
T HINE OWN DEAR PRESENCE TO CHEER AND TO GUIDE ;
S TRENGTH FOR TODAY AND BRIGHT HOPE FOR TOMORROW ,
B LESSINGS ALL MINE , WITH TEN THOUSAND BESIDE
G REAT IS T HY FAITHFULNESS , O G OD MY F ATHER ,

T HERE IS NO SHADOW OF TURNING WITH T HEE ;
T HOU CHANGEST NOT , T HY COMPASSIONS , THEY FAIL NOT
A S T HOU HAST BEEN T HOU FOREVER WILT BE .
G REAT IS T HY F AITHFULNESS
F OR THE GLORY OF G OD
C LARENCE T IU A TENEO L AW 3B B ATCH 2017
TABLE OF CONTENTS
CHAPTER 1: GENERAL PROVISIONS 6
DEFINITION OF SUCCESSION 6
DEFINITION OF DECEDENT AND TESTATOR 8
SCOPE OF THE INHERITANCE 8
WHEN THE RIGHTS OF SUCCESSION ARE VESTED 9
KINDS OF SUCCESSION 11
DEFINITION OF HEIRS, DEVISEES AND LEGATEES 11
CHAPTER 2: TESTAMENTARY SUCCESSION 13
SECTION 1: WILLS 13
SUBSECTION 1: WILLS IN GENERAL 13
DEFINITION OF A WILL 13
PURELY PERSONAL CHARACTERISTIC OF MAKING A WILL 14
RULES OF CONSTRUCTION AND INTERPRETATION OF WILLS 15
GOVERNING LAW AS TO THE FORMAL VALIDITY OF A WILL 18
SUBSECTION 2: TESTAMENTARY CAPACITY AND INTENT 19
RULES ON TESTAMENTARY CAPACITY 19
TESTAMENTARY CAPACITY OF WOMEN 21
SUBSECTION 3: FORMS OF WILLS 21
COMMON REQUIREMENT IN ALL WILLS 22
SPECIAL REQUIREMENTS FOR ATTESTED WILLS: IN GENERAL 23
SPECIAL REQUIREMENTS FOR ATTESTED WILLS: FOR HANDICAPPED TESTATORS 29
SUBSTANTIAL COMPLIANCE FOR ATTESTED WILLS 30
SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: IN GENERAL 33
SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: REQUIREMENT OF WITNESS/WITNESSES 34
SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: IN CASE OF ADDITIONAL DISPOSITIONS 37
SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: AUTHENTICATION IN CASE OF CHANGES 37
SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: PLACE OF EXECUTION IN RELATION TO THE TESTATORS NATIONALITY 38
SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: PROHIBITION ON JOINT WILLS 39
SUBSECTION 4: WITNESSES TO WILLS 40
COMPETENCY OF WITNESSES IN ATTESTED WILLS 40
SUPERVENING INCOMPETENCE OF A WITNESS 41
INCAPACITY OF THE WITNESSES TO SUCCEED 42
CREDITORS AS COMPETENT WITNESSES 42
SUBSECTION 5: CODICILS AND INCORPORATION BY REFERENCE 42
DEFINITION OF A CODICIL 43
VALIDITY OF CODICILS 43
VALIDITY OF INCORPORATED DOCUMENTS OR PAPERS TO AN ATTESTED WILL 43
SUBSECTION 6: REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS 44
PROHIBITION ON WAIVER OR RESTRICTION ON THE RIGHT TO REVOKE A WILL 44
RULES AS TO THE PLACE OF REVOCATION 44
MODES OF REVOCATION 45
EFFECTIVITY OF THE REVOCATION CLAUSE IN CASE OF REVOCATION BY SUBSEQUENT WILL 47
REVOCATION BASED ON FALSE OR ILLEGAL CAUSES 49
RECOGNITION OF PATERNITY IN A WILL 50
SUBSECTION 7: REPUBLICATION AND REVIVAL OF WILLS 51
REPUBLISHING OR REVIVING A VOID OR REVOKED WILL 51
REVOCATION OF A SUBSEQUENT REVOKING WILL DOES NOT REVIVE THE REVOKED PRIOR WILL 52
SUBSECTION 8: ALLOWANCE AND DISALLOWANCE OF WILLS 53
PROBATE AS A MANDATORY REQUIREMENT TO A WILLS EFFECTIVITY 53
GROUNDS FOR DISALLOWANCE OF WILLS INTO PROBATE 56
SECTION 2: INSTITUTION OF HEIR 57
DEFINITION OF INSTITUTION OF HEIRS 57
VALIDITY OF THE WILL DESPITE ABSENCE OR LACK OF INSTITUTION OR UNWILLING OR UNWORTHY HEIRS 58
HOW MUCH MAY BE DISPOSED OF BY WILL 59
MANNER OF INSTITUTION OR DESIGNATION OF THE HEIRS, DEVISEES OR LEGATEES 59
INSTITUTION OF HEIRS COLLECTIVELY WITHOUT DESIGNATION OF SHARES 60
INSTITUTION OF HEIRS INDIVIDUALLY AND COLLECTIVELY WITHOUT DESIGNATION OF SHARES 61
INSTITUTION OF BROTHERS OR SISTERS 61
CLARENCE TIU WILLS AND SUCCESSION

ATENEO LAW 3B, BATCH 2017 2 OF 205 PROF. RUBEN BALANE
TABLE OF CONTENTS
INSTITUTION BASED ON FALSE CAUSES 62
WHEN THE WHOLE ESTATE IS NOT COVERED BY THE INSTITUTIONS 63
WHEN THE WHOLE ESTATE IS INTENDED TO BE DISPOSED OF BUT THE INSTITUTIONS DO NOT COVER THE ENTIRE PORTION 63
PRETERITION; OMISSION OF THE COMPULSORY HEIRS, IN THE DIRECT LINE, FROM THE INHERITANCE 64
COMPLETION OF LEGITIME 68
NON-TRANSMISSION OF SUCCESSIONAL RIGHTS IN CASES OF PRE-DECEASE, INCAPACITY, OR RENUNCIATION 70
SECTION 3: SUBSTITUTION OF HEIR 71
DEFINITION OF SUBSTITUTION 71
KINDS OF SUBSTITUTION 71
SIMPLE/COMMON (VULGAR) SUBSTITUTION 72
BRIEF OR COMPENDIOUS SUBSTITUTION 73
RECIPROCAL SUBSTITUTION 73
SUBSTITUTE SUBJECT TO THE SAME CONDITIONS IMPOSED ON THE HEIRS 74
FIDEICOMMISSARY SUBSTITUTION 74
FIDEICOMMISARY SUBSTITUTION CANNOT PREJUDICE THE LEGITIME 76
MANNER OF PROVIDING FOR FIDEICOMMISSARY SUBSTITUTIONS 76
RIGHT OF THE FIDEICOMMISSARY VESTS AT THE TIME OF THE TESTATOR'S DEATH 77
INEFFECTIVE PROVISIONS IN A WILL 77
EFFECTIVE OF INVALIDITY OR INEFFECTIVITY OF THE FIDEICOMMISSARY SUBSTITUTION 78
INSTITUTION OF SUCCESSIVE USUFRUCTUARIES 79
LIMIT ON INALIENABILITY OF THE INHERITANCE 79
SECTION 4: TESTAMENTARY DISPOSITIONS WITH A CONDITION OR TERM 79
KINDS OF TESTAMENTARY DISPOSITIONS 80
TESTAMENTARY PROVISIONS CANNOT PREJUDICE THE LEGITIME 80
CONDITIONAL DISPOSITIONS 80
IMPOSSIBLE AND ILLEGAL CONDITIONS 81
CONDITIONS WHICH PROHIBIT MARRIAGE 81
LEGACY-HUNTING DISPOSITIONS 82
POTESTATIVE, CASUAL AND MIXED CONDITIONS 82
WHEN THE PROPERTY IS TO BE PLACED UNDER ADMINISTRATION 84
DISPOSITIONS WITH A TERM 84
WHEN HEIRS RIGHT VESTS IN DISPOSITIONS WITH A TERM 84
SUSPENSIVE OR RESOLUTORY TERMS 85
MODAL DISPOSITIONS 85
WHEN AN INSTITUTION CANNOT TAKE EFFECT IN THE EXACT MANNER STATED BY THE TESTATOR 86
SECTION 5: LEGITIME 86
DEFINITION OF LEGITIME 86
COMPULSORY HEIRS 87
LEGITIMARY PORTIONS AND COMBINATIONS 91
LEGITIME OF LEGITIMATE CHILDREN AND DESCENDANTS 93
LEGITIME OF LEGITIMATE PARENTS AND ASCENDANTS 93
LEGITIME OF LEGITIMATE CHILDREN/DESCENDANTS AND THE SURVIVING SPOUSE 94
LEGITIME OF LEGITIMATE PARENTS/ASCENDANTS AND THE SURVIVING SPOUSE 95
LEGITIME OF ILLEGITIMATE CHILDREN AND THE SURVIVING SPOUSE 95
LEGITIME OF LEGITIMATE AND ILLEGITIMATE CHILDREN/DESCENDANTS AND THE SURVIVING SPOUSE 95
LEGITIME OF LEGITIMATE PARENTS AND ILLEGITIMATE CHILDREN/DESCENDANTS 96
LEGITIME OF LEGITIMATE PARENTS, ILLEGITIMATE CHILDREN/DESCENDANTS, AND THE SURVIVING SPOUSE 96
LEGITIME OF THE SURVIVING SPOUSE (AS SOLE COMPULSORY HEIR) 97
LEGITIME OF ILLEGITIMATE CHILDREN/DESCENDANTS (AS SOLE COMPULSORY HEIRS) 97
LEGITIME OF ILLEGITIMATE PARENTS AND SURVIVING SPOUSE 97
RESERVA TRONCAL 98
DECEDENT CANNOT DEPRIVE THE COMPULSORY HEIRS OF, OR BURDEN THE LEGITIME 110
RENUNCIATION AND COMPROMISE OF FUTURE LEGITIME BETWEEN THE DECEDENT AND HIS COMPULSORY HEIR 111
DETERMINATION OF THE NET HEREDITARY ESTATE 111
TRANSFERS CONSIDERED PART OF THE LEGITIME 112
SATISFACTION OF IMPAIRED LEGITIME; METHOD OF REDUCTION 114
FREE AND DISPOSABLE PORTION 116
SECTION 6: DISINHERITANCE 116
EFFECT OF DISINHERITANCE 116

TABLE OF CONTENTS
HOW DISINHERITANCE SHOULD BE EFFECTED 117
BURDEN OF PROVING THE CAUSE FOR DISINHERITANCE 117
INEFFECTIVE DISINHERITANCE 117
CAUSES FOR DISINHERITANCE OF CHILDREN OR DESCENDANTS 117
CAUSES FOR THE DISINHERITANCE OF PARENTS OR ASCENDANTS 119
CAUSES FOR THE DISINHERITANCE OF SURVIVING SPOUSE 120
SUBSEQUENT RECONCILIATION 121
RIGHT OF REPRESENTATION IN DISINHERITANCE 122
SECTION 7: LEGACIES AND DEVISES 123
DEFINITION OF LEGACIES AND DEVISES 123
TO WHOM THE LEGACY/DEVISE IS CHARGED 124
SOLIDARY LIABILITY OF CO-HEIRS TO DEVISEE/LEGATEES 125
WARRANTY IN CASE OF EVICTION 125
LEGACY/DEVISE OF A THING OWNED IN PART BY THE TESTATOR; LEGACY/DEVISE OF A THING OWNED BY ANOTHER 125
LEGACY/DEVISE OF A THING ALREADY OWNED OR SUBSEQUENTLY ACQUIRED BY THE DEVISEE/LEGATEE 126
LEGACY/DEVISE TO REMOVE AN ENCUMBRANCE 127
LEGACY OF A CREDIT OR REMISSION 127
LEGACY/DEVISE TO A CREDITOR; TESTAMENTARY INSTRUCTION TO PAY A DEBT 128
ALTERNATIVE LEGACIES 129
GENERIC LEGACIES AND DEVISES 130
LEGACY FOR EDUCATION AND SUPPORT 131
LEGACY OF A PERIODICAL PENSION 131
DEMANDABILITY, OWNERSHIP, AND FRUITS OF LEGACIES/ DEVISES 132
RULES OF PREFERENCE IN DEVISE/LEGACIES 133
OBLIGATION TO DELIVER THE ACCESSIONS AND ACCESSORIES 134
OBLIGATION TO DELIVER THE THING ITSELF OR CASH; EXPENSES OF DELIVERY 134
ACCEPTANCE AND REPUDIATION OF LEGACIES/DEVISES 135
REPUDIATION BY OR INCAPACITY OF LEGATEE/DEVISEE 136
GROUNDS FOR THE REVOCATION OF LEGACY/DEVISE BY OPERATION OF LAW 136
MISTAKE AS TO THE NAME OF THE THING AS DEVISE/LEGACY 137
DISPOSITION MADE IN GENERAL TERMS IN FAVOR OF THE TESTATOR'S RELATIVES 137
CHAPTER 3: LEGAL OR INTESTATE SUCCESSION 138
SECTION 1: GENERAL PROVISIONS 138
WHEN INTESTATE SUCCESSION TAKES PLACE 138
BASIC RULES OF INTESTACY 139
SUBSECTION 1: RELATIONSHIP 141
DETERMINATION OF LINES AND COMPUTATION OF DEGREES 141
FULL AND HALF-BLOOD RELATIONSHIP 143
RIGHT OF ACCRETION IN INTESTACY 143
RENUNCIATION BY ALL IN THE SAME DEGREE 144
SUBSECTION 2: RIGHT OF REPRESENTATION 145
SECTION 2: ORDER OF INTESTATE SUCCESSION 149
INTESTATE HEIRS 149
EXCLUSION AND CONCURRENCE OF INTESTATE HEIRS; COMBINATIONS IN INTESTATE SUCCESSION 149
PARTIAL INTESTACY 154
SUBSECTION 1: DESCENDING DIRECT LINE 155
SUBSECTION 2: ASCENDING DIRECT LINE 156
SUBSECTION 3: ILLEGITIMATE CHILDREN 156
SUBSECTION 4: SURVIVING SPOUSE 159
SUBSECTION 5: COLLATERAL RELATIVES 160
SUBSECTION 6: THE STATE 161
CHAPTER 4: PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSION 163
SECTION 1: RIGHT OF ACCRETION 163
DEFINITION OF ACCRETION 163
ACCRETION IN TESTAMENTARY SUCCESSION 164
RIGHT OF ACCRETION IN INTESTACY 165
RULE OF PROPORTIONALITY IN ACCRETION 165

TABLE OF CONTENTS
EFFECT OF ACCRETION 166
NO ACCRETION IN THE LEGITIME 166
SECTION 2: CAPACITY TO SUCCEED BY WILL OR BY INTESTACY 166
CAPACITY TO SUCCEED IN GENERAL 166
CAPACITY TO SUCCEED FOR NATURAL PERSONS 167
CAPACITY TO SUCCEED FOR JURIDICAL PERSONS 168
GROUNDS FOR INCAPACITY TO SUCCEED IN TESTAMENTARY SUCCESSION 168
EFFECT OF CERTAIN TESTAMENTARY DISPOSITIONS 171
INCAPACITY BY REASON OF UNWORTHINESS TO SUCCEED 172
RESTORATION TO CAPACITY 173
WHEN CAPACITY TO SUCCEED MUST BE DETERMINED 174
REPRESENTATION IN UNWORTHINESS 175
RULES REGARDING THE INCAPACITATED HEIR 175
LAW GOVERNING THE CAPACITY TO SUCCEED 176
SECTION 3: ACCEPTANCE AND REPUDIATION OF THE INHERITANCE 176
ACCEPTANCE OR REPUDIATION AS A FREE AND VOLUNTARY ACT 176
RETROACTIVE EFFECT OF ACCEPTANCE OR RENUNCIATION 177
WHEN ACCEPTANCE OR REPUDIATION SHOULD BE MADE 177
CAPACITY TO ACCEPT OR REPUDIATE; WHO CAN ACCEPT OR RENOUNCE 177
FORMS OF ACCEPTANCE; HOW ACCEPTANCE IS MADE 178
FORMS OF REPUDIATION; HOW REPUDIATION IS MADE 180
REPUDIATION IN FRAUD OF CREDITORS; ACCION PAULIANA 180
TRANSMISSIBILITY OF THE RIGHT TO REPUDIATE 180
REPUDIATION IN CASE OF HEIR INHERITS BY TESTACY AND INTESTACY 181
IRREVOCABILITY OF ACCEPTANCE AND REPUDIATION 182
SECTION 4: EXECUTORS AND ADMINISTRATORS 182
SECTION 5: COLLATION 182
COLLATION AS COMPUTATION 183
COLLATION AS IMPUTATION 184
COLLATION IN THE SENSE OF RETURN 188
WHEN THERE IS CONTROVERSY IN THE COLLATION 191
SECTION 6: PARTITION AND DISTRIBUTION OF ESTATE 191
SUBSECTION 1: PARTITION 191
DEFINITION OF PARTITION 191
KINDS OF PARTITION 192
PARTITION BY THE CAUSANTE (DECEDENT) HIMSELF 194
WHEN THIRD PERSON (MANDATARY) MAY MAKE THE PARTITION 196
RIGHT OF THE HEIRS TO DEMAND PARTITION 196
PARTITION IN CASE TESTAMENTARY DISPOSITIONS ARE SUBJECT TO SUSPENSIVE CONDITIONS 198
RULE OF EQUALITY IN PARTITION 198
REIMBURSEMENT OF EXPENSES IN PARTITION 198
SALE OF HEREDITARY SHARE BEFORE PARTITION; RIGHT OF REDEMPTION BY OTHER CO-HEIRS 199
DELIVERY OF THE TITLE OF OWNERSHIP TO THE CO-HEIRS 200
SUBSECTION 2: EFFECTS OF PARTITION 200
TERMINATION OF CO-OWNERSHIP 200
CO-HEIRS OBLIGATION OF MUTUAL WARRANTY 201
SUBSECTION 3: RESCISSION AND NULLITY OF PARTITION 202
GROUNDS FOR RESCISSION AND ANNULMENT OF CONTRACTS 202
OBLIGATION OF CO-HEIR SUED FOR RESCISSION 204
INCOMPLETENESS OF PARTITION; SUPPLEMENTAL PARTITION 204
OMISSION OF CO-HEIR FROM THE PARTITION 204
INCLUSION OF A PERSON WHO IS NOT AN HEIR IN THE PARTITION 205

CHAPTER 1: GENERAL PROVISIONS
DEFINITION OF SUCCESSION
Article 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the
extent of the value of the inheritance, of a person are transmitted through his death to another or others either
by his will or by operation of law. (n)
Article 712. Ownership is acquired by occupation and by intellectual creation.
Ownership and other real rights over property are acquired and transmitted by law, by donation, by testate
and intestate succession, and in consequence of certain contracts, by tradition.
They may also be acquired by means of prescription. (609a)
Article 776. The inheritance includes all the property, rights and obligations of a person which are not
extinguished by his death. (659)
Article 1311. Contracts take effect only between the parties, their assigns and heirs, except in case where the
rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by
provision of law. The heir is not liable beyond the value of the property he received from the decedent.
SUCCESSION AS A MODE OF ACQUISITION

The Civil Code treats succession simply as a mode of acquiring ownership
It is one of the 7 legally recognized modes of acquiring ownership under Art. 712
Original Modes (because there was no immediate previous owner)
1. Occupation
2. Intellectual Creation
Derivative Modes (title is derived from an immediate previous owner)
1. Law
2. Donation
3. Testate and Intestate Succession
4. Tradition (in consequence of certain contracts)
Mixed Mode (because its hard to classify it, prescription is not strictly original, nor derivative)
1. Prescription
OVERLAP OF CODAL DEFINITION WITH ART. 776

Reading Art. 774 and 776 will show an overlap of the two provisions
Art. 776 defines the inheritance of a person
Art. 774 talks of property, rights and obligations to the extent of the value of the inheritance, Art. 776, on the other
hand, talks of the inheritance as including all the property, rights and obligations of a person which are not
extinguished by his death
BALANE: For better clarity and correlation, Art. 774 should be read as: Succession is a mode of acquisition by virtue of
which the inheritance of a person is transmitted through his death to another or others either by his will or by operation
of law
And the inheritance which is transmitted is defined by Art. 776 to include all the property, rights and obligations of a
person which are not extinguished by his death
WHAT ARE TRANSMITTED?

RULE: ONLY TRANSMISSIBLE RIGHTS, PROPERTIES AND OBLIGATIONS PASS BY SUCCESSION.
What are intransmissible rights?
If the right or obligations is strictly personal (by stipulation, law or by its nature), then it is intransmissible.
Personal rights (intuitu personae) die with the decedent

Thus, only non-personal rights and obligations are transmissible through succession
LIMITATION IN ART. 774 ON THE OBLIGATIONS TRANSMITTED TO THE HEIR

RULE: THE HEIR CANNOT BE HELD LIABLE BEYOND THE INHERITANCE RECEIVED
RULE REGARDING PECUNIARY OBLIGATIONS OR MONEY DEBTS

The rule for money debts, is that the creditors must file a claim against the estate (not the heirs). Thus, in our
system, money debts are seemingly not transmitted to the heirs nor paid by them. The estate pays them, it is
only what is left after the debts are paid that are transmitted to the heirs.
Money obligations of the deceased, under Art. 774, will pass to the heirs to the extent that they inherit from him.
Seemingly therefore, this article mandates that the heirs receive the estate, and then pay off creditors.
Procedural law (Rule 88 to 90, Rules of Court) however, provide that it is only after the debts are paid that the
residue of the estate is distributed among the successors. (So, under ROC, the estate pays off the creditors first
then what is left goes to the successors)
What is significant about this?
A question on when hereditary rights of the sucessors will vest. Do the successors acquire the whole of the
transmissible assets and liabilities of the decedent by and upon his death, or do they only acquire a residuum
remaining after payment of the debts, as implied by the Rules of Court? Or do they acquire only the naked title at
the debt of the decedent, but with possession or enjoyment vested in the administrator or personal representative
until after the settlement of the claims against the estate?
Art. 774 expressly provides and the SC confirms that by virtue of succession, the property, rights and
obligations, to the extent of the value of the inheritance of a person, are transmitted by and at the moment of his
death, implying a transfer at that instant of the totality or universality of assets and liabilities.
Several divergent rules on this point which should be clarified when the code is revised (JBL Reyes)
ART. 774 AND 776 SEEMS TO CLASH WITH THE RULES OF COURT; HARMONIZATION
This pertains to the rule on when successional rights vest and its necessary implications and consequences.
Logic from Art. 774/776: You can directly sue the heirs for obligations of the decedent. This is because, since the
successional rights vest on them, at the time of the death of the testator
Rule 90, Rules of Court: You must sue the estate otherwise, the claim will be barred.
Once the decedent dies, the estate passes through a judicial process and the creditors of the decedent must
present their claims in the court, otherwise it will be barred. It is only when the debts and expenses of administration
and the inheritance taxes have been paid, and after the satisfaction of creditors will the remaining residue of the
estate or the net estate pass through the heirs
BALANE: Art. 774 and 776 seems to clash with the Rules of Court.. Because Art. 774 and 776 are based on Spanish
and Roman Law. Rules of Court is based on American Law. These are divergent systems that clash. How do you
harmonise this? Given that as a rule, substantive law should prevail over procedural law? See the next few cases
UNION BANK VS. SANTIBANEZ 452 SCRA 228 [2005]
The filing of a money claim against the decedents estate in the probate court is MANDATORY. This
requirement is for the purpose of protecting the estate of the deceased by informing the executor or administrator of
the claims against it, thus enabling him to examine each claim and to determine whether it is a proper one which
should be allowed. The plain and obvious design of the rule is the speedy settlement of the affairs of the deceased
and the early delivery of the property to the distributees, legatees, or heirs. The law strictly requires the prompt
presentation and disposition of the claims against the decedents estate in order to settle the affairs of the estate as
soon as possible, pay off its debts and distribute the residue.
BALANE: Only the payment of money debts has been affected by the Rules of Court. The transmission of other
obligations not by nature purely personal follows the rule laid down in Article.
ESTATE OF K.H. HEMADY VS. LUZON SURETY 100 PHIL. 389 (1956)
Under the present Civil Code (Article 1311), the rule is that Contracts take effect only as between the parties,
their assigns and heirs, except in the case where the rights and obligations arising from the contract are not
transmissible by their nature, or by stipulation or by provision of law.
While in our successional system the responsibility of the heirs for the debts of their decedent cannot exceed the
value of the inheritance they receive from him, the principle remains intact that these heirs succeed not only to the
rights of the deceased but also to his obligations. Articles 774 and 776 expressly so provide, thereby confirming
Article 1311 already quoted.
Under the Civil Code the heirs, by virtue of the rights of succession are subrogated to all the rights and
obligations of the deceased and can not be regarded as third parties with respect to a contract to which the

deceased was a party, touching the estate of the deceased. The principle on which these rest is not affected
by the provisions of the new Code of Civil Procedure, and, in accordance with that principle, the heirs of the
deceased person cannot be held to be third persons in relation to any contracts touching the real estate
of their decedent which comes in to their hands by right of inheritance; they take such property subject to
all the obligations resting thereon in the hands of him from whom they derive their rights
The binding effect of contracts upon the heirs of the deceased party is not altered by the provision in our
Rules of Court that money debts of a deceased must be liquidated before the residue is distributed among
said heirs (Rule 89). The reason is that whatever payment is thus made from the estate is ultimately a
payment by the heirs and distributees, since the amount of the paid claim in fact diminishes or reduces the
shares that the heirs would have been entitled to receive.
Under our law, therefore, the general rule is that a partys contractual rights and obligations are transmissible to the
successors. The rule is a consequence of the progressive depersonalization of patrimonial rights and duties that,
has characterized the history of these institutions. From the Roman concept of a relation from person to person, the
obligation has evolved into a relation from patrimony to patrimony, with the persons occupying only a representative
position, barring those rare cases where the obligation Is strictly personal, i.e., is contracted intuitu personae, in
consideration of its performance by a specific person and by no other. The transition is marked by the
disappearance of the imprisonment for debt.
BALANE: This case harmonizes the conflict between Art. 774 and 776 and the Rules of Court as to when the
vesting of the successional right takes place. Court in said there is no conflict between the Civil Code and the Rules
of Court. It said that, ultimately the result will be the same anyway. Although the heirs are not immediately and
directly liable, ultimately they were still held liable since what they got from the estate, was reduced. So,
successional rights still vested on the heirs upon the death of the decedent, but it needs to go through
liquidation and distribution in court and pay off the decedent's creditors before the net estate passes to the
heirs. Payments made by the estate are deemed payments made by the heirs. Although the heirs are not
immediately and directly liable, ultimately they were still held liable since what they got from the estate, was
reduced.
ALVAREZ VS. INTERMEDIATE APPELLATE COURT 185 SCRA 8 (1990)
This case reiterates the ruling in Hemady
That heirs did not inherit the property involved herein is of no moment because by legal fiction, the monetary
equivalent thereof devolved into the mass of their fathers hereditary estate, and we have ruled that the hereditary
assets are always liable in their totality for the payment of the debts of the estate. The heirs are liable only to the
extent of the value of their inheritance.
TRANSMISSIBLE OBLIGATIONS OTHER THAN MONEY DEBTS

Not all transmissible obligations are money debts
Such as, in a contract of lease, there is an obligation to return the subject-matter of the lease upon expiration of the
lease period. Since the right to the lease of the lessor passes to his heirs, the corresponding obligation to return the
property to the lessee, upon expiration of the lease, also passes to the heirs
DEFINITION OF DECEDENT AND TESTATOR
Article 775. In this Title, "decedent" is the general term applied to the person whose property is transmitted
through succession, whether or not he left a will. If he left a will, he is also called the testator. (n)
General term of the person who dies, whether or not he left a will: Decedent
If the decedent left a will: Also called as a Testator
BALANE: It is unfortunate that the Code does not use the term intestate to refer to a decedent who died without a will.
This would have prevented the ambiguity now inherent in the term decedent
SCOPE OF THE INHERITANCE
Article 776. The inheritance includes all the property, rights and obligations of a person which are not
extinguished by his death. (659)

Article 781. The inheritance of a person includes not only the property and the transmissible rights and
obligations existing at the time of his death, but also those which have accrued thereto since the opening of
the succession. (n)
BALANE: Art. 781 should be deleted as it only confuses.
WHAT DOES THE INHERITANCE INCLUDE?

RULE: THE INHERITANCE INCLUDES ONLY INCLUDES ALL THE TRANSMISSIBLE PROPERTY, RIGHTS AND OBLIGATIONS
OF A PERSON. WHATEVER ACCRUES AFTER THE DECEDENTS DEATH (WHICH IS WHEN THE SUCCESSION OPENS)
BELONGS TO THE HEIR, NOT BY VIRTUE OF SUCCESSION, BUT BY VIRTUE OF OWNERSHIP, SPECIFICALLY BY RIGHT OF
ACCESSION.
This includes fruits (civil, natural and industrial) which accrue after death.
The inheritance passes at the moment of death (Art. 777) to the heirs by virtue of succession, but the fruits of the
inheritance pass to the heirs by virtue of accession.
The fruits which have accrued since the opening of the succession are really, NOT part of the inheritance, they are
fruits of the inheritance.
BALANE: To say that the fruits are part of the inheritance means that the succession takes place beyond the
moment of death of the decedent, which is wrong. Art. 781 is a new provision which should not have been
added.
What are part of the inheritance?
Only his patrimony the decedent owns the time of his death. Only his properties, rights and obligations existing
at the time of his death. Those properties which are not owned by the decedent at the time of his death are no
longer part of his inheritance. This is shown in the Balus Case
BALUS VS BALUS G.R. NO. 168970, JAN. 15, 2010
The rights to a person's succession are transmitted from the moment of his death. In addition, the inheritance of a
person consists of the property and transmissible rights and obligations existing at the time of his death (by virtue of
succession), as well as those which have accrued thereto (by virtue of ownership) since the opening of the
succession.
In this case, since the testator lost ownership of the subject property during his lifetime, it only follows that at the
time of his death, the disputed parcel of land no longer formed part of his estate to which his heirs may lay claim.
Stated differently, the heirs never inherited the subject lot from their father.
WHEN THE RIGHTS OF SUCCESSION ARE VESTED
Article 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a)
Art. 777 is the most important provision in Succession and one of the most important provisions in Civil Law!
VESTED IS THE MORE APPROPRIATE TERM

BALANE: The terminology is infelicitous because the right to succession is not transmitted, it becomes vested. To say
that is is transmitted implied that before the decedents death, the right to the succession was possession by the
decedent, which is absurd. To say it vests upon death implies that before the decedents death, the right was merely
inchoate.
TIME OF VESTING OF THE SUCCESSIONAL RIGHT

Art. 777 merely specifies that time of vesting of the successional right
The ownership to the estate of the decedent is immediately vested to the heirs at the time of the death of the decedent.
Art. 777 is not literally true as the heirs do not immediately receive the successional rights. But it is not pure fiction as
the heirs receive certain vested rights.
It presumes that the person succeeding:
1. Has a right to succeed by legitime (compulsory succession), by will (testamentary succession), or by law
(intestate succession)
2. Has the legal capacity to succeed
3. Accepts the succession

Rights to succession are vested from the moment of death, not upon the filing of petition for testate/ intestate
proceedings, not upon the declaration of heirship or upon settlement of the estate.
The rights to succession are automatic. Tradition or delivery is not needed. Fiction of the law is that from the moment
of the death of the decedent, the right passes to the heirs.
During the lifetime of the predecessor, rights to succession are a mere expectancy. Hence, no contract can be legally
entered into regarding the expected inheritance. When a heir receives his inheritance, he is deemed to have received it
at the point of death. this is so by legal fiction to avoid confusion.
BALANE: It should be emphasized that the operation of Article 777 is at the very moment of the decedents death; the
transmission by succession occurs at the precise moment of death and therefore the heir, devisee, or legatee is legally
deemed to have acquired ownership at that moment (even if, particularly in the heirs case, he will generally not know
how much he will be inheriting and what properties he will ultimately be receiving), and not at the time of declaration of
heirs, or partition, or distribution.
CONSEQUENCES WHICH FOLLOW THE PRINCIPLE OF IMMEDIATE VESTING

1. LAWS IN FORCE AT THE TIME OF THE DECENDENTS DEATH WILL DETERMINE WHO THE HEIR SHOULD BE
USON VS. DEL ROSARIO 92 PHIL. 530 (1953)
Rights which are declared for the first time shall have retroactive effect even though the event which gave rise to
them may have occurred under the former legislation, but this is so only when the new rights do not prejudice
any vested or acquired right of the same origin.
If a right should be declared for the first time in this Code, it shall be effective at once, even though the act or
event which gives rise thereto may have been done or may have occurred under the prior legislation, provided
said new right does not prejudice or impair any vested or acquired right, of the same origin.
In this case, the right of ownership of the heir (Maria Uson) over the lands in question became vested in 1945
upon the death of her late husband and this is so because of the imperative provision of the law which
commands that the rights to succession are transmitted from the moment of death. Thus, what should govern is
the provision in the old civil code, since the testator's death took place during that time
The new right recognized by the new Civil Code in favor of the illegitimate children of the deceased cannot,
therefore, be asserted to the impairment of the vested right of Maria Uson over the lands in dispute.
In other words, when the testator died in 1945, the illegitimate children were not heirs yet, since the law in force
during that time was the Old Civil Code which does not give successional rights to illegitimate heirs.
2. OWNERSHIP PASSES TO THE HEIR AT THE VERY MOMENT OF DEATH, WHO THEREFORE, FROM THAT MOMENT,
ACQUIRES THE RIGHT TO DISPOSE OF HIS SHARE
DE BORJA VS. VDA. DE BORJA 46 SCRA 577 (1972)
The right to inherit is vested at the moment of death. Even if an heir did not know how much she was going to
inherit, she could still dispose of her share in the inheritance. Said right to the share was hers from the moment
of death and she could do whatever she wanted with her share, even sell it.
ALFONSO VS ANDRES G.R. NO. 166236, JULY 29, 2010
Significantly, the title of the property owned by a person who dies intestate passes at once to his heirs. Such
transmission is subject to the claims of administration and the property may be taken from the heirs for the
purpose of paying debts and expenses, but this does not prevent an immediate passage of the title, upon the
death of the intestate, from himself to his heirs
BALANE: The heir can already sell his share of the estate even before it is finally determined (by testate or intestate
procedings) how much is he going to get. Note that the heir can only sell/dispose of his share the undivided
estate. He cannot sell specific items because, at this point, such is still undetermined.
3. THE HEIRS HAVE THE RIGHT TO BE SUBSTITUTED FOR THE DECEASED AS PARTY IN AN ACTION THAT SURVIVES
BONILLA VS. BARCENA 71 SCRA 491 (1976)
Right to prosecute an action that survives (in this case it was based on quieting of title) is transmitted to the
heirs, at the moment of the death of the decedent. No declaration of heirship is necessary because of the
immediate vesting principle.
But, if the identity of the heirs is disputed, a declaration of heirship is necessary as seen in the case of Yap In
Chay vs Del Rosario where 2 groups were disputing who the heirs where.
REPUBLIC VS MARCOS
Heirs of the former dictator were impleaded as real parties in interest, in forfeiture cases against the former
dictator.
Prior settlement of the estate is not necessary for the heirs to commence an action pertaining to the decedent.
In this case, it was an action for partition involved.

4. AN IMPLIED CO-OWNERSHIP ARISES BETWEEN THE HEIRS AS TO THE UNDIVIDED PORTION OF THE ESTATE AT THE
MOMENT OF THE DEATH OF THE DECEDENT. AND IF SUCH HEIR/CO-OWNER DIES, THEN HIS INTEREST OF THE ESTATE
IS FURTHER TRANSMITTED TO HIS HEIRS WHO BECOME CO-OWNERS OF THE UNDIVIDED PORTION OF HIS INTEREST.
INING VS DE VEGA G.R. NO. 174727, AUGUST 12, 2013
In this case, the estate was not settled, and the co-owner properties passed on to different generations without
being divided, thus, a lot of co-owners were involved. Co-owners died and their respective heirs became co-
owners, and so on, this is based on the principle that the rights to the succession are transmitted from the
moment of death.
KINDS OF SUCCESSION
Article 778. Succession may be:

1. Testamentary;
2. Legal or intestate; or
3. Mixed. (n)
Article 779. Testamentary succession is that which results from the designation of an heir, made in a will
executed in the form prescribed by law. (n)
Article 780. Mixed succession is that effected partly by will and partly by operation of law. (n)
KINDS OF SUCCESSION
Art. 778 enumerates 3 kinds of succession, the first (testamentary) and the third (mixed) are described in the two
succeeding articles.
Legal or intestate succession is not defined.
BALANE: The draft of the Code contained a definition of this kind of succession which seems to have gotten lost in
the legislative mill
Intestate or legal succession takes place by operation of law in the absence of a valid will.
The enumeration cannot satisfactorily accommodate the system of legitimes
Legitimes does not fit in with legal or intestate succession because it operates only in default of a will while legitime
operates whether or not there is a will, in fact it prevails over a will. Also, there are instances when the rules on
legitime (Art. 887) operate, to the exclusion of the rules of intestacy (Art. 960)
BALANE: Legitime should be classified as a separate and distinct kind of succession and can be denominated as
compulsory succession
Kinds of Succession (according to order of importance):
1. COMPULSORY:
Succession to the legitime (This prevails over all other kinds)
2. TESTAMENTARY
Succession by will
3. INTESTATE OR LEGAL
Succession in default of a will
"In default of a will" does not mean the absence of a will. Intestate succession can take place even if there is a
will, such as when the will does not dispose of all the disposable property of the decedent,, in such case, the will
defaulted as to the remaining property not covered by it.
MIXED
Combination of any two or all of the first three
BALANE: Mixed succession is not really a kind of succession, but merely a combination of different kinds of
succession. So there are really, only 3 kinds of succession
Before the family code, there was a fourth kind of succession, "Contractual Succession" between spouses in the form
of a donation propter nuptias to take effect upon the death of either spouse.
DEFINITION OF HEIRS, DEVISEES AND LEGATEES

.
Article 782. An heir is a person called to the succession either by the provision of a will or by operation of law.

Devisees and legatees are persons to whom gifts of real and personal property are respectively given by
virtue of a will. (n)
DISTINCTION IN ART. 782 BETWEEN HEIRS AND DEVISEES/LEGATEES

The coal definitions are neither clear nor very helpful. They are so open-ended that an heir can fall under the definition
of a legatee/devisee and vice-versa
Castans explanations are authoritative:
1. Heir
One who succeeds to the whole or an aliquot (fractional) part of the inheritance
Successor by universal title or by universal succession
Ex: X gives Y the whole of his estate, or 1/4 of his estate, in either case, Y is considered as an heir
2. Devisee/Legatee
Those who succeed to definite, specific and individual properties
Successor by specific title or by particular succession
Ex: X gives Y his house, or painting, etc.
IMPORTANCE OF THE DISTINCTION IN ART. 782

Distinction between heir and devisee/legatee was much more important in the old law. But still has its importance in the
Civil Code. On this distinction depends the correct application of Art. 854 on preterition.
In cases of preterition, the institution of heir is annulled, while the institution of legatees and devisees is effective to
the extent that the legitimes are not impaired.

CHAPTER 2: TESTAMENTARY SUCCESSION; SECTION 1: WILLS
SUBSECTION 1: WILLS IN GENERAL
CHAPTER 2: TESTAMENTARY SUCCESSION
SECTION 1: WILLS
DEFINITION OF A WILL
Article 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to
a certain degree the disposition of his estate, to take effect after his death. (667a)
OPERATIVE WORDS IN THE DEFINITION

1. ACT
The definition of a will as an act is to broad and should have been more clearly delimited with a more specified term
such as instrument or document in view of the provision of Art. 804 that every will must be in writing. Nuncupative,
or oral wills are not recognised in our Code
This erroneously characterisation is sourced from the Spanish Civil Code because orals wills are recognized in that
jurisdiction
2. PERMITTED
Will making is purely statutory, it is not guaranteed by the Constitution. A law may be passed to invalidate will-
making.
3. FORMALITIES PRESCRIBED BY LAW
The requirement of form prescribed respectively for attested and holographic wills
4. CONTROL TO A CERTAIN DEGREE
The testators power of testamentary disposition is limited by the rules on legitimes
5. DISPOSITION OF HIS ESTATE
SEANGIO VS REYES (2006):
In this case, the document was a holographic one containing only a clause of disinheritance. The issue was
whether or not the decedent left a will which would determine whether testate or intestate proceedings will take
place. The Court held that the document, although it may initially come across as a mere disinheritance
instrument, conforms to the formalities of a holographic will because an intent to dispose mortis cause
can be clearly deduced from the terms of the instrument, and while it does not make an affirmative
disposition of the testators property, the disinheritance is an act of disposition in itself. Thus, probate
proceedings should take place.
BALANE: Note that the disposition of property is NOT an essential element of wills. A will is valid even though it
does not contain any testamentary disposition as long as it complies to the essential requirements of wills, although
it is a hollow will.
6. AFTER HIS DEATH
Testamentary succession, like all other kinds of succession in our Code, is mortis causa
VITUG VS CA (1990):
A survivorship agreement executed by spouses (between themselves and the bank) pertaining to bank
deposits, which are conjugal during their lifetime but will be exclusive property of the surviving spouse upon the
death of either, is NOT a will. This is because a bequest or devise must be owned by the testator. In this case, it
was conjugal funds. Neither was it a donation since it was to take place upon the death.
Court held that such an agreement is a kind of aleatory contract involving an obligation with a term, the term
being death.
Alternative definition of a will in this case: "A personal, solemn, revocable, and free act by which a
capacitated person disposes of his property, rights and declares or complies with duties to take effect after his
death."
This is a definition from the Americans which is authoritative as well.

CHARACTERISTICS OF WILLS
1. PURELY PERSONAL
See Art. 784, 785, 787
2. FREE AND INTELLIGENT
See Art. 839, the testators consent should not be vitiated by the causes mentioned in Art. 839, paragraphs 2-6
(insanity, violence, intimidation, fraud, mistake)
3. SOLEMN AND FORMAL
Expressed in Art. 783
See Art. 804-814, 820, 821
The requirements as to form depend on whether the will is attested or holographic.
Art. 805-808, 820, 821 govern attested wills.
Art. 810-814 govern holographic wills.
Art. 804 applies to both.
4. REVOCABLE OR AMBULATORY
See Art. 828
Ambulatory means it is not fixed, or changeable
This is because the will only takes effect upon the testators death and no rights vest yet as long as the testator is
alive, even if the will has already been probated ante-mortem
5. MORTIS CAUSA
Expressed in Art. 783
This is also a necessary consequence of Art. 774 and 777
6. INDIVIDUAL
See Art. 818, joint wills are prohibited in this jurisdiction.
7. EXECUTED WITH ANIMUS TESTANDI
Implied in Art. 783
8. EXECUTED WITH TESTAMENTARY CAPACITY
See Art. 796-803
9. UNILATERAL
Implied in Art. 783
this means acceptance is not needed in making a will. A person may be stipulated in a will without his knowledge.
Acceptance comes later, after the decedent's death.
10. DISPOSITIVE OF PROPERTY
Expressed in Art. 783, the article seems to consider the disposition of the testators estate mortis causa as the
purpose of will-making
Generally, it should dispose of a property, BUT this is NOT an essential requirement of a valid will.
BALANE: If a will does not dispose of property (such as a document expressing the desire of the decedent to be
cremated) it is a hollow will, it is still a valid will but only as to its form, not substance.
11. STATUTORY
Expressed in Art. 783, will-making is a purely statutory right.
PURELY PERSONAL CHARACTERISTIC OF MAKING A WILL
Article 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion
of a third person, or accomplished through the instrumentality of an agent or attorney. (670a)
Article 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of
the portions which they are to take, when referred to by name, cannot be left to the discretion of a third
person. (670a)
Article 786. The testator may entrust to a third person the distribution of specific property or sums of money
that he may leave in general to specified classes or causes, and also the designation of the persons,
institutions or establishments to which such property or sums are to be given or applied. (671a)

Article 787. The testator may not make a testamentary disposition in such manner that another person has to
determine whether or not it is to be operative. (n)
NON-DELEGABILITY OF MAKING A WILL (ART. 784, 785, 787); EXCEPTIONS (ART. 786)
RULE: THE MAKING OF A WILL IS A STRICTLY PERSONAL ACT; IT CANNOT BE LEFT IN WHOLE OR IN PART TO THE
DISCRETION OF A THIRD PERSON, OR ACCOMPLISHED THROUGH THE INSTRUMENTALITY OF AN AGENT OR ATTORNEY.
Art. 784 gives the will its purely personal character, as reinforced by Art. 785 and 787
It is the exercise of the disposing power that cannot be delegated. Purely mechanical and clerical aspects, such
as typing, do not fall within the prohibition
What the law prohibits is the essence of will-making.
The following constitute the essence of will-making or the exercise of disposing power, and thus, are non-delegable:
1. The designation of heirs, devisees, or legatees
2. The duration or efficacy of such designation (including such things as conditions, terms, substitutions)
3. The determination of the portions they are to receive
4. The power to decide whether a disposition should take effect or not (Art. 787)
The testator may not delegate to a third person the determination on whether or not disposition is operative. This is
because it violates the purely personal character of the will, in effect the third person will exercise the disposition
power.
This should be interpreted rationally, it should not be interpreted as to make it clash with the principle (Art.
1041-1057) that the heir is free to accept or reject the testamentary disposition
EXCEPTION: THE TESTATOR MAY ENTRUST TO A THIRD PERSON THE FOLLOWING:
1. Manner of distribution of specific property or sums of money that he may leave in general to specified
classes or causes, and
2. The designation of the persons, institutions or establishments to which such property or sums are to be
given or applied.
Note that the testator must determine the class or cause to be benefited AND the specific property or
amount of money to be given (these two things must be specified by the testator before the delegation to a
third person is allowed)
It is only the manner of distribution or property and the designation of who are to receive it within the class or
cause which are delegable. Thus the third person can choose WHO to give (as long as it corresponds to the
class or cause) and HOW MUCH each of them should receive (as long this corresponds to how much the
testator chooses to give)
BALANE: The exceptions here are part of the essence of the will-making power of the testator, they are allowed
to be delegated only because the law says so.
What if the testator specified the recipients (by specific designation) but left the third person the determination
of the sharing (proportion of how much each receives), is this allowed?
No, under Art. 786, the recipients must not be specifically designated by the testator. Art. 786 only applies where
the testator merely specifies the class or cause but not the specific recipients.
This is the case even though this actually involves a lesser discretion for the third person than the instances
allowed by Art. 786. Since in Art. 786, the testator is allowed to delegate WHO to give and HOW MUCH each
person should receive. In the mentioned scenario, the testator chooses WHO to give but delegates merely HOW
MUCH each of them shall receive.
BALANE: This should be allowed since it involves a lesser discretion.
What if the third person to whom the powers in Art. 786 is delegated to refuses to do his duty?
Court will compel him to do so. If the third person dies, court should appoint a substitute in order to carry out the
wishes of the testator.
RULES OF CONSTRUCTION AND INTERPRETATION OF WILLS
Article 788. If a testamentary disposition admits of different interpretations, in case of doubt, that
interpretation by which the disposition is to be operative shall be preferred. (n)
Article 789. When there is an imperfect description, or when no person or property exactly answers the
description, mistakes and omissions must be corrected, if the error appears from the context of the will or

from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an
uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's
intention is to be ascertained from the words of the will, taking into consideration the circumstances under
which it was made, excluding such oral declarations. (n)
Article 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear
intention to use them in another sense can be gathered, and that other can be ascertained.
Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a
contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he
was unacquainted with such technical sense. (675a)
Article 791. The words of a will are to receive an interpretation which will give to every expression some
effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting
a will, that is to be preferred which will prevent intestacy. (n)
Article 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of
the other dispositions, unless it is to be presumed that the testator would not have made such other
dispositions if the first invalid disposition had not been made. (n)
Article 793. Property acquired after the making of a will shall only pass thereby, as if the testator had
possessed it at the time of making the will, should it expressly appear by the will that such was his intention.
(n)
Article 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in
the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n)
Article 929. If the testator, heir, or legatee owns only a part of, or an interest in the thing bequeathed, the
legacy or devise shall be understood limited to such part or interest, unless the testator expressly declares
that he gives the thing in its entirety. (864a)
Article 931. If the testator orders that a thing belonging to another be acquired in order that it be given to a
legatee or devisee, the heir upon whom the obligation is imposed or the estate must acquire it and give the
same to the legatee or devisee; but if the owner of the thing refuses to alienate the same, or demands an
excessive price therefor, the heir or the estate shall only be obliged to give the just value of the thing. (861a)
BALANE: The principles in construction and interpretation of wills are based on the principle that the intent of the testator is
supreme.
RULES OF CONSTRUCTION AND INTERPRETATION OF WILLS

1. IF A TESTAMENTARY DISPOSITION ADMITS OF DIFFERENT INTERPRETATIONS, IN CASE OF DOUBT, THAT
INTERPRETATION BY WHICH THE DISPOSITION IS TO BE OPERATIVE SHALL BE PREFERRED (ART. 788)
Underlying principle is that Testacy is preferred to Intestacy. This is because the former is the express will of the
decedent, whereas the latter is only his implied will.
Also, the principle of That the thing may rather be effective than be without effect.
Similar rule in Contractual Interpretation, Article 1373: If some stipulation of any contract should admit of several
meanings, it shall be understood as bearing that import which is most adequate to render it effectual
When there is doubt as to the interpretation of provisions of a will, then that interpretation which makes it valid
should be preferred, not the interpretation which will make it void.
BALANE: Give effect, as much as possible, to the testator's intention, don't be too technical.
2. WHEN THERE IS AN IMPERFECT DESCRIPTION, OR WHEN NO PERSON OR PROPERTY EXACTLY ANSWERS THE
DESCRIPTION, MISTAKES AND OMISSIONS MUST BE CORRECTED, IF THE ERROR APPEARS FROM THE CONTEXT OF THE

WILL OR FROM EXTRINSIC EVIDENCE, EXCLUDING THE ORAL DECLARATIONS OF THE TESTATOR AS TO HIS INTENTION;
AND WHEN AN UNCERTAINTY ARISES UPON THE FACE OF THE WILL, AS TO THE APPLICATION OF ANY OF ITS
PROVISIONS, THE TESTATOR'S INTENTION IS TO BE ASCERTAINED FROM THE WORDS OF THE WILL, TAKING INTO
CONSIDERATION THE CIRCUMSTANCES UNDER WHICH IT WAS MADE, EXCLUDING SUCH ORAL DECLARATIONS. (ART.
789)
Two kinds of ambiguity:
a. Latent or Intrinsic Ambiguity (not obvious on the face of the will)
When there is an imperfect description, or when no person or property exactly answers the description.
The ambiguity is not apparent on the face of the will.
i. Latent as to person: I institute to 1/4 of my estate my first cousin Jose (but the testator has several first
cousns named Jose)
ii. Latent as to property: I devise to my cousin Pacifico my fishpond in Roxas City (but the testator has
more than one fishpond on Roxas City)
b. Patent or Extrinsic Ambiguity (obvious on the face of the will)
The ambiguity is envident from a reading of the will
i. Patent as to person: I institute to 1/4 of my estate some of my first cousins
ii. Patent as to property: I bequeath to my cousin Pacifico some of my cars
How to deal with such ambiguities
a. No distinction, really, whether the ambiguity is latent or patent
b. The ambiguity as far as possible, be cleared up and resolved, in order to give effect to the testamentary
disposition. Remember that the testator's intention is supreme in testamentary succession.
c. Resolve the ambiguity by any evidence admissible and relevant, EXCLUDING oral declarations of the
testator as to his intention (Dead man cannot refute a tale)
Note that both extrinsic and intrinsic evidence may be presented, as well as written declarations of the
testator.
3. THE WORDS OF A WILL ARE TO BE TAKEN IN THEIR ORDINARY AND GRAMMATICAL SENSE, UNLESS A CLEAR
INTENTION TO USE THEM IN ANOTHER SENSE CAN BE GATHERED, AND THAT OTHER CAN BE ASCERTAINED.
TECHNICAL WORDS IN A WILL ARE TO BE TAKEN IN THEIR TECHNICAL SENSE, UNLESS THE CONTEXT CLEARLY
INDICATES A CONTRARY INTENTION, OR UNLESS IT SATISFACTORILY APPEARS THAT THE WILL WAS DRAWN SOLELY BY
THE TESTATOR, AND THAT HE WAS UNACQUAINTED WITH SUCH TECHNICAL SENSE (ART. 790)
Rule is similar to Rule 130, Sec. 10 and 14 of Rules of Court
Sec. 10: Interpretation of a writing according to its legal meaning.- The language of a writing is to be interpreted
according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise.
Sec. 14: Peculiar signification of terms.- The terms of a writing are presumed to have been used in their
primary and general application, but evidence is admissible to show that they have a local, technical, or
otherwise peculiar signification, and were so used and understood in the particular instance, in which case
the agreement must be construed accordingly.
Similar rule in Contractual Interpretation, Article 1370: If the terms of a contract are clear and leave no doubt
upon the intention of the contracting parties, the literal meaning of its stipulations shall control.
4. THE WORDS OF A WILL ARE TO RECEIVE AN INTERPRETATION WHICH WILL GIVE TO EVERY EXPRESSION SOME EFFECT,
RATHER THAN ONE WHICH WILL RENDER ANY OF THE EXPRESSIONS INOPERATIVE; AND OF TWO MODES OF
INTERPRETING A WILL, THAT IS TO BE PREFERRED WHICH WILL PREVENT INTESTACY. (ART. 791)
Rule is similar to Rule 130, Sec. 11 of Rules of Court
Sec. 11: Instrument construed so as to give effect to all provisions.- In the construction of an instrument where
there are several provisions or particulars, such as constructions is, if possible, to be adopted as will give
effect to all
Similar rule in Contractual Interpretation:
Article 1373: If some stipulation of any contract should admit of several meanings, it shall be understood as
bearing that import which is most adequate to render it effectual.
Article 1374: The various stipulations of a contract shall be interpreted together, attributing to the doubtful
ones that sense which may result from all of them taken jointly.
5. THE INVALIDITY OF ONE OF SEVERAL DISPOSITIONS CONTAINED IN A WILL DOES NOT RESULT IN THE INVALIDITY OF
THE OTHER DISPOSITIONS, UNLESS IT IS TO BE PRESUMED THAT THE TESTATOR WOULD NOT HAVE MADE SUCH OTHER
DISPOSITIONS IF THE FIRST INVALID DISPOSITION HAD NOT BEEN MADE. (ART. 792)
This provision makes applicable to wills the sever ability or separability principle in statutory construction frequently
expressly provided in a separability clause

6. PROPERTY ACQUIRED AFTER THE MAKING OF A WILL SHALL ONLY PASS THEREBY, AS IF THE TESTATOR HAD
POSSESSED IT AT THE TIME OF MAKING THE WILL, SHOULD IT EXPRESSLY APPEAR BY THE WILL THAT SUCH WAS HIS
INTENTION. (ART. 793)
This provision creates problems which would not have existed had it not been so nonchalantly incorporated in the
Code
The problems spring from the fact that this article makes the will speak as of the time it is made, rather than at the
time of the decedents death (which is more logical because that is when the will takes effect Art. 777)
Example: X executes a will in 1980 with a provision I leave to A 1/4 of my estate. When he made the will, his
estate was worth P100,000. At the time of his death in 1990, Xs estate was worth P500,000. Per Art. 793, A is
entitled only to P25,000
Art. 793 therefore departs from the codal philosophy of Art. 774 and 776 and constitutes an exception to the
concept of succession as linked to death and rendered legally effective by death.
BALANE: This article should be reformed as to read Property acquired after the making of a will passes thereby
unless the contrary clearly appears from the words or the context of the will Testator is presumed to know that the
will is to operate only when he dies, therefore the provisions of a will is supposed to speak at the time of the death
of the testator. The reverse of Art. 793 should be true in that the will should pertain to the property as of the time of
death.
Some authorities say that this provision on after-acquired properties only applies to legatees and devisees and NOT
to heirs (as this makes more sense), but Prof. Balane didnt say anything regarding that.
7. EVERY DEVISE OR LEGACY SHALL COVER ALL THE INTEREST WHICH THE TESTATOR COULD DEVICE OR BEQUEATH IN
THE PROPERTY DISPOSED OF, UNLESS IT CLEARLY APPEARS FROM THE WILL THAT HE INTENDED TO CONVEY A LESS
INTEREST. (ART. 794)
Read this together with Art. 929
In a legacy or devise, the testator gives exactly the interest he has in the thing (Art. 794)
EXCEPTION: He can give less interest (Art. 794) or a greater interest (Art. 929) than he has, if he indicates
such fact in the will
How will he give more interest than he actually has under Art. 931? The estate will need to purchase the interest
the testator wishes to give but doesn't own yet when he dies. If the owners of such interest doesn't want to sell,
the heir gets the monetary equivalent instead.
Ex: When testator owns a land in co-ownership with another.
In the latter case, if the person owning the interest to be acquired does not wish to part with it, the solution in
Art. 931 can be applied, in that the legatee or devisee shall be entitled only to the just value of the
interest that should have been acquired.
GOVERNING LAW AS TO THE FORMAL VALIDITY OF A 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. (n)
RULE: THE VALIDITY OF A WILL DEPENDS ON THE LAW IN FORCE AT THE TIME IT WAS EXECUTED, NOT THE TIME
WHEN THE TESTATOR DIES.
EXCEPTION: When a subsequent law provides for retroactivity
EXCEPTION TO EXCEPTION: When the testator dies before such subsequent laws effectivity (Art. 777)

Aspects of Validity of Wills
EXTRINSIC OR FORMAL VALIDITY INTRINSIC OR SUBSTANTIVE VALIDITY
For Filipinos and Foreigners: For Filipinos

The law in force when the will was executed (Art. 795) The law as of the time of death (Art. 777,
Governing BALANE: You dont want the testator to be a 2263)
Law as to the prophet and predict laws
Time For foreigners, the assumption is that the will is being For Foreigners
probated here
Depends on their personal law (Art. 16, par. 2,
Art. 1039)
For Filipinos and Foreigners: For Filipinos

Five choices are available to the testator (Art. Philippine law (Art. 16, par. 2)
Governing 815-817)
1. Law of Citizenship For Foreigners
Law as to the
Place 2. Law of Domicile Their national law (Art. 16, par. 2, Art. 1039)
3. Law of Residence
4. Law of Place of Execution
5. Philippine Law
SUBSECTION 2: TESTAMENTARY CAPACITY AND INTENT
RULES ON TESTAMENTARY CAPACITY
Article 796. All persons who are not expressly prohibited by law may make a will. (662)
Article 797. Persons of either sex under eighteen years of age cannot make a will. (n)
Article 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution.
(n)
Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning
faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be
disposed of, the proper objects of his bounty, and the character of the testamentary act. (n)
Article 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the
person who opposes the probate of the will; but if the testator, one month, or less, before making his will was
publicly known to be insane, the person who maintains the validity of the will must prove that the testator
made it during a lucid interval. (n)
Article 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable
validated by the supervening of capacity. (n)
TESTAMENTARY CAPACITY
This is the legal capacity to make a will
All natural persons have testamentary capacity, unless disqualified by law
Juridical persons, however, are not granted testamentary capacity
Testamentary capacity is considered an extrinsic/formal requirement for the validity of a will (according to Art. 839)

PERSONS DISQUALIFIED BY LAW/ TESTAMENTARY INCAPACITY
1. PERSONS UNDER EIGHTEEN YEARS OF AGE
A minor cannot make a will, thus, a will made by a minor is void. Such void will is NOT validated by his coming of
age. The minor, who has become an adult, must make a new will.
Note that the provisions says under eighteen years of age cannot make a will, this doesnt necessarily mean he is
a minor because prior to 1989 (where a special law was passed to lower age of majority), the age of majority was
21, thus, before such date, some minors (aged 18-21) can execute a will
2. PERSONS WHO ARE NOT OF SOUND MIND OR WHO ARE MENTALLY INCAPACITATED, AT THE TIME OF THE
EXECUTION OF THE WILL
Art. 799 defines what a sound mind is
To be of sound mind, it is NOT required or necessary that the testator should have:
a. Full possession of all his reasoning faculties
b. A mind that is wholly unbroken, unimpaired, or unshattered by disease, injury or other cause
This is because there's no such person who fits these descriptions. There is no such person who has full
possession of all his reasoning faculties nor a person who has a mind which is wholly unbroken,
unimpaired, or unshattered. Every person has gone through something.
To be of sound mind, it is sufficient that the testator has the ability to know the:
a. NATURE OF THE ESTATE TO BE DISPOSED OF
The testator should have a fairly accurate knowledge of what he owns, but what is accurate should
depend on the circumstances. if the person is rich, then the latitude of what is fairly accurate is broader
than a person who is poorer.
The testator must only have a reasonably accurate knowledge of his estate, an estimation which is fairly
accurate. Nobody knows how much money he exactly has.
b. PROPER OBJECTS OF ONES BOUNTY
The testator should know, under ordinary circumstances, his relatives in the most proximate degrees.
This doesn't mean he should give the properties to his relatives, but he must know who his immediate
relatives are so that he can make an intelligent decision
c. CHARACTER OF THE TESTAMENTARY ACT
The testator must know that the document he is executing is one that disposes of his property upon
death
He must know that he is disposing of his property gratuitously (and not for consideration) and it will take
effect upon his death
Note: The standards of soundness of mind to execute a will is different in legal contemplation and medical
contemplation. What is important is that he meets the standards in Art. 799. He must be capable of
perceiving the three things in Art. 799 which renders him sufficient to meet the standard of a sound
mind, regardless of whether he is medically ill or not.
Basically, the testator, in executing a will, should know and has an understanding of what he is about to do,
how he is disposing his property, and to whom he is disposing his property
The definition of soundness of mind for purposes of testamentary succession is different from other
purposes
Time of determining mental capacity is at the time of execution of the will, no other temporal criterion is
to be applied
Note that Art. 801 provides that supervening incapacity does not invalidate an effective will, nor is the will of
an incapable validated by the supervening of capacity. So no destructive or curative effect in the respective
cases.
PRESUMPTION OF SOUNDNESS OF MIND

RULE: THE LAW PRESUMES THAT EVERY PERSON IS OF SOUND MIND, WHOEVER DISPUTES THIS FACT SHOULD REBUT
IT WITH SUFFICIENT EVIDENCE.
EXCEPTION: In these cases, there is NO presumption of soundness of mind, but rather, a rebuttable presumption
of insanity:
1. When the testator, one month or less, before the execution of the will was publicly known to be insane
(Article 800)
2. When the testator executed the will after being placed under guardianship or ordered committed, in either
case, for insanity (under Rules 93 and 101, respectively, of the Rules of Court), and before said order has been
lifted.

Thus, in all cases, there is a presumption, either of soundness of mind, or insanity
IN CASE OF SUPERVENING INCAPACITY OR CAPACITY

RULE: SUPERVENING INCAPACITY DOES NOT INVALIDATE AN EFFECTIVE WILL. SUPERVENING CAPACITY DOES NOT
VALIDATE AN INEFFECTIVE (VOID) WILL
This supports the principle that the qualification of soundness of mind is to be determined at the time the will was
made and executed.
If the person was on sound mind when he made the will, then the will is valid. Supervening incapacity does not
render it invalid. The reverse is also true, if the person was of unsound mind when he made the will, the will is
invalid, this invalidity is not cured upon the supervening capacity of the testator.
TESTAMENTARY CAPACITY OF WOMEN
Article 802. A married woman may make a will without the consent of her husband, and without the authority
of the court. (n)
Article 803. A married woman may dispose by will of all her separate property as well as her share of the
conjugal partnership or absolute community property. (n)
Article 97 (of Family Code). Either spouse may dispose by will of his or her interest in the community property
BALANE: Sexist provisions which is explained by historical context. It contains an erroneous and unintended
suggestion that a married man does not have the same privilege
Art. 803 has been superseded by Art. 97 of the Family Code. It provides that either spouse may dispose by will of his or
her interest in the community property.
Note that during the subsistence of the marriage (of the absolute community or conjugal partnership) the community/
conjugal properties cannot be disposed of a single spouse without consent of the other, except token donations and
other exceptions, BUT, the spouses may dispose of their share by will since the absolute community property or
conjugal partnership is dissolved upon the death of either spouse (Art. 99 and 126 of Family Code)
SUBSECTION 3: FORMS OF WILLS
The next provisions which will be taken up will pertain to the formal requirements or extrinsic validity of wills. These
requirements are in Articles 804-808; 810-814; 818 and 819. To summarize:
Formal requirements of Wills in General (Art. 804, 818-819):
1. Must be in writing
2. Must executed in a language or dialect known to the testator
3. Must not be a joint will
Formal requirements of Attested Wills (Art. 805-808)
1. Subscribed by the testator or his agent in his presence and by his express direction at the end thereof, in the
presence of the witnesses
2. Attested and subscribed by at least three credible witnesses in the presence of the testator and of one another
3. The testator, or his agent, must sign every page, except the last, on the left margin in the presence of the
witnesses
4. The witnesses must sign every page, except the last, on the left margin in the presence of the testator and of one
another
5. All pages numbered correlatively in letters on the upper part of each page
6. Attestation clause, stating
a. The number of pages of the will
b. The fact that the testator or his agent under his express direction signed the will and every page thereof, in the
c. The fact that the witnesses witnessed and signed the will and every page thereof in the presence of the
testator and one another,
7. Acknowledgment before a notary public

8. For testator who is a literate deaf-mute, he must read the will personally
9. For testator who is an illiterate deaf-mute, he must designate two persons to read the will and communicate to him,
in some practicable manner, its contents.
10. For blind testators, will must be read to him twice, once by one of the subscribing witnesses, and another by the
notary
Formal requirements of Holographic Wills (Art. 805-808, 810-814)
1. Must be completely handwritten by the testator
2. Must be dated by the testator
3. Must be signed by the testator
4. Necessity of witnesses who knows the handwriting and signature of the testator or expert testimony
5. Additional dispositions must each be dated and signed
6. If each additional disposition is signed but undated, the last disposition must be signed and dated.
7. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the
same by his full signature.
COMMON REQUIREMENT IN ALL WILLS
Article 804. Every will must be in writing and executed in a language or dialect known to the testator. (n)
BALANE: Art. 804 lays down the common requirements that apply to both kinds of wills. These requirements are
MANDATORY, failure to comply with these two requirements renders the will VOID.
KINDS OF WILLS
1. Attested/Notarial Wills (Governed by special requirements in Art. 805-808)
2. Holographic Wills (Governed by special requirements in Art. 810-814)
COMMON REQUIREMENTS OF WILLS

1. IN WRITING
Orals wills or nuncupative wills are NOT recognized in the Code, only in the Muslim Laws
2. IN A LANGUAGE OR DIALECT KNOWN TO THE TESTATOR
Neither the will nor the attestation clause need state compliance with this requirement. This can be proved by
extrinsic evidence (Lopez vs. Liboro, 81 Phil. 429 [1948]; Caponong-Noble vs. Abaja, 450 SCRA. 265 [2005])
BALANE: How will you know whether the will is in a language known to the testator? Does the will need to state this
fact? NO, it is not required to be stated, extrinsic evidence may be presented.
Presumption of compliance: It may sometimes be presumed that the testator knew the language in which the will
was written.
BALANE: Generally there is no presumption, because it is dangerous, only in exceptional cases such as in
Abangan, which was not really a presumption but rather compliance was proved by the facts in that case
SUROZA VS. HONRADO 110 SCRA 388 (1981)
In this case, the trial court judge, on perusing the will and noting that it was written in English and was
thumbmarked by an obviously illiterate testatator, could have readily perceived that the will is void.
In the opening paragraph of the will, it was stated that English was a language understood and known to the
testatrix. But in its concluding paragraph, it was stated that the will was read to the testator and was translated
into Filipino language. That could only mean that the will was written in a language not known to the illiterate
testatator and, therefore, it is void because of the mandatory provision of Article 804 of the Civil Code that every
will must be executed in a language or dialect known to the testator. Thus, a will written in English, which was
not known to the testator, is void.
ABANGAN VS. ABANGAN 40 PHIL. 476 (1919)
In this case, the testator was born and resided in Cebu, and the will was executed in cebuano. Court said that
there is no need to prove that the testator knew and understood cebuano. Even if the records do not show that
the testator knew the dialect in which the will is written, but the circumstance appearing in the will itself show
that same was executed in Cebu and in the dialect of this locality where the testatator was from, is enough, in
the absence of any proof to the contrary, to presume that she knew this dialect in which this will is written

Thus, there is a presumption that the testator knew the language or dialect in which the will is written,
and this need NOT be attested to in the will.
On order for the presumptions to apply, the following must appear:
1. The will must be in a language or dialect generally spoken in the place of execution; and
2. The testator must be a native or resident of said locality.
BALANE: Properly speaking, compliance with the language requirement is not then presumed but proved by
these attendant circumstances.
SPECIAL REQUIREMENTS FOR ATTESTED WILLS: IN GENERAL
Article 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator
himself or by the testator's name written by some other person in his presence, and by his express direction,
and attested and subscribed by three or more credible witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall
be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused some other person to write his name, under his
express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the
will and all the pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n)
Article 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of
Court.(n)
SPECIAL REQUIREMENTS FOR ATTESTED/NOTARIAL WILLS

1. Subscribed by the testator or his agent in his presence and by his express direction at the end thereof, in the presence
of the witnesses
2. Attested and subscribed by at least three credible witnesses in the presence of the testator and of one another
3. The testator, or his agent, must sign every page, except the last, on the left margin in the presence of the witnesses
4. The witnesses must sign every page, except the last, on the left margin in the presence of the testator and of one
another
5. All pages numbered correlatively in letters on the upper part of each page
6. Attestation clause, stating
a. The number of pages of the will
b. The fact that the testator or his agent under his express direction signed the will and every page thereof, in the
c. The fact that the witnesses witnessed and signed the will and every page thereof in the presence of the testator
and one another,
7. Acknowledgment before a notary public.
DISCREPANCIES IN ART. 805

1. No statement that the testator must sign in the presence of the witnesses and no statement that the testator
and the witnesses must sign every page in one anothers presence.
These two things, however, are required to be stated in the attestation clause. The only conclusion, therefore, is
that these are requirements that are to be complied with, since it cannot be presumed that the attestation clause
was meant to tell a lie
2. The attestation clause is not required to state that the agent signed in the testators presence

This is a circumstance mandated by the first and second paragraphs of the article.
DATE REQUIREMENT
There is NO requirement that an attested will should be dated, unlike a holographic will which must be.
Consequently, a variance between the indicated dates of execution and acknowledgement does not in itself
invalidate the will
LANGUAGE REQUIREMENT
Does the testator need to know the language of the attestation clause?
No, because it is an affair of the witnesses.
Do the witness need to know the language of the will?
No, only the testator needs to know the language of the will for its validity. The only language requirement is in Art.
804 in that the will must be in a language known to the testator.
How about the attestation clause, do the witnesses need to know its language?
No, it can be interpreted to them under Art. 805, last paragraph.
SPECIAL REQUIREMENTS FOR ATTESTED/NOTARIAL WILLS (EXPOUNDED)
1. SUBSCRIBED BY TESTATOR OR HIS AGENT- SUBSCRIBED BY THE TESTATOR OR HIS AGENT IN HIS PRESENCE
AND BY HIS EXPRESS DIRECTION AT THE END THEREOF, IN THE PRESENCE OF THE WITNESSES
a. ACT OF SUBSCRIBING
i. By the Testator
What does subscribe mean?
The article uses two words to refer to this requirement which are used interchangeably, subscribe and
sign. By definition, they are not synonymous. To sign is a broader term as it simply means placing a
distinguishing mark; while to subscribe means to write under, this necessarily denotes writing.
Subscribing thus, should be taken to mean as signing, hence a distinguishing mark, such as a
thumbmark, is sufficient. However, the mark must be not easily faked, in that placing a cross is not
satisfactory
Note that this only applies to the testator, not the witnesses. It is said that the witnesses are required
to sign by writing
PAYAD VS. TOLENTINO 62 PHIL. 848 (1936)
A statute requiring a will to be signed is satisfied if the signature is made by the testators mark.
MATIAS VS. SALUD L-10751 JUNE 23, 1958
Court has repeatedly held that the legal requisite that the will should be signed by testator is satisfied
by a thumbprint or other mark affixed by him and that where such mark is affixed by the decedent, it
is unnecessary to state in the attestation clause that another person wrote the testators name at his
request
BALANE: On the authority of these rulings, therefore, the testators thumbprint is always a valid and
sufficient signature for the purpose of complying with the requirement of the article. While in most of
these cases, the testator was suffering from some infirmity which made the writing of the testators name
difficult or impossible, there seems to be no basis for limiting the validity of thumbprints only to cases of
illness or infirmity.
GARCIA VS. LACUESTA 90 PHIL. 489 (1951)
It is not here pretended that the cross appearing on the will is the usual signature of the testator or

even one of the ways by which he signed his name. The Court is not prepared to liken the mere sign
of a cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the
trustworthiness of a thumb mark (because it is easy to fake).
BALANE: A sign of the cross, therefore, placed by the testator does not comply with the statutory
requirement of signature, UNLESS it is the testators usual manner of signature or one of his usual
styles of signing
ii. By the Agent
Requisites for signing by the agent:
1. He must sign in testators presence, and
How does agent subscribe for the testator?

By writing down the testators name (not his own name). The essential thing, for validity, is that
the agent write the testators name, nothing more. It would be a good thing, but not required, for
the agent to indicate the fact of agency or authority for reference.
BARUT VS CABACUNGAN (1912):
The testator may direct a third person to sign his name, and a declaration to this effect must
be provided in the attestation clause which is attested by the witness. What is required of the
third person (for purposes of the wills validity) is to sign the testator's name, not his own;
though it may be wise as a practical matter that the one who signs the testators name signs
also his own; such act is not essential to the validity of the will. BUT, if the third person signed
his own name, rather than the testators, the will is void.
2. By the testator's express direction
Can the witness be an agent? (and vice-versa)
Some say no because Art. 805 implies that the agent and witness is distinct since the agent is required
to sign in the presence of at least three witness
Some say yes, as to not be too strict, Tolentino supports this
b. SIGNING AT THE END OF THE WILL
Where is the end?
If the will contains only dispositive portions, there will be no ambiguity as to where the end of the will is. If,
however, the will contains non-dispositve paragraphs after the testamentary dispositions, one can refer to
two kinds of end, signing at either is permissible.
i. Physical end: Where the writing stops
ii. Logical end: Where the last testamentary disposition ends
Signing at the logical end is permissible also since the non-dispositive portions are not essential
parts of the will (Azuela vs CA, 487 SCRA 119 2006)
What if the testator signs before the end?
This invalidates not only the dispositions that come after, but the entire will, because then one of the
statutory requirements would not have been complied with
Thus, the testator should sign at the physical end, or at least, the logical end, otherwise the will is VOID
c. SIGNING IN THE PRESENCE OF WITNESSES
Actual seeing is not required, rather, the ability to see each other by merely casting their eyes in the proper
direction
BALANE: Meaning of in the presence, as long as the witness has the ability to see each other (the testator
and the other witnesses) by merely casting his eyes, or pivoting his body in the proper direction, then the
requirement is fulfilled. It is sufficient that the witness was in a position to see, if he wanted to. There must
be no barrier to his line of sight
NERA VS. RIMANDO 18 PHIL. 451 (1911)
The true test of presence of the testator and the witnesses in the execution of a will is not whether they
actually saw each other sign, but whether they might have seen each other sign, had they chosen to do so,
considering their mental and physical condition and position with relation to each other at the moment of
inscription of each signature
But it is especially to be noted that the position of the parties with relation to each other at the moment of the
subscription of each signature, must be such that they may see each other sign if they choose to do so.
This, of course, does not mean that the testator and the subscribing witnesses may be held to have
executed the instrument in the presence of each other if it appears that they would not have been able to
see each other sign at that moment, without changing their relative positions or existing conditions.
2. ATTESTED AND SUBSCRIBED BY WITNESSES- ATTESTED AND SUBSCRIBED BY AT LEAST THREE CREDIBLE
WITNESSES IN THE PRESENCE OF THE TESTATOR AND OF ONE ANOTHER
a. ATTESTED AND SUBSCRIBED BY AT LEAST THREE CREDIBLE WITNESSES
2 distinct requirements (both must be down by the witnesses)
i. Attesting: The act of witnessing
ii. Subscribing: The act of signing their names in the proper places of the will
Is attesting different from subscribing?
Yes. Attestation is the act of the sense, while subscription is the act of the hand. The former is mental, the
latter mechanical, and to attest a will is to know that it was published as such, and to certify the facts

required to constitute an actual and legal publication; but to subscribe a paper published as a will is only to
write on the same paper the names of the witnesses, for the purpose of identification. (Caneda vs CA, 1993)
Attestation consists in witnessing the testators execution of the will in order to see and take note mentally
that those things are done which the statute requires for the execution of the a will and that the signature of
the testator exists as a fact. On the other hand, subscription is the signing of the witnesses names upon
the same paper for the purpose of identification of such paper as the will which was executed by the testator.
As it involves a mental act, there would be no means therefore, of ascertaining by a physical examination of
the will whether the witnesses had indeed signed in the presence of the testator and of each other unless
this is substantially expressed in the attestation (Taboada vs Rosal, 1982)
Is the witness required to sign at the end of the will?
Ideally yes, but if he signs at the left-margin of the last page, it is substantial compliance
TABOADA V. ROSAL (118 SCRA 195 [1982])
In this case, the witnesses signatures were not found at the end but on the lefthand margin of that page.
Court ruled that the will fully satisfied the statutory requirement. It went on to state: While perfection in
the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored,
especially where the authenticity of the will is not assailed.
BALANE: The implication in Taboada is that, literally and ideally, the witnesses should sign at the end of
the will, though failure in this regard may be overlooked.
May the witness, like the testator, affix his thumbmark, in lieu of writing his name?
Debatable, it is said that the witnesses are required to sign by writing because Art. 820 (pertaining to
qualifications of witnesses) requires that they should be able to read and write
Credible?
Qualification of the witnesses will be taken up later
b. SIGNING IN THE PRESENCE OF THE TESTATOR AND OF ONE ANOTHER
Witnesses are also required to attest and sign in the presence of one another (of the testator and the other
witnesses)
Nera ruling applies also in this case, in that, the ability to see is sufficient
3. SIGNATURE ON EVERY PAGE BY TESTATOR OR AGENT- THE TESTATOR, OR HIS AGENT, MUST SIGN EVERY
PAGE, EXCEPT THE LAST, ON THE LEFT MARGIN IN THE PRESENCE OF THE WITNESSES
a. SIGNATURE ON EVERY PAGE, EXCEPT THE LAST, ON THE LEFT MARGIN
The last page need NOT be signed by the testator on the left margin, because, being the page where the end of
the will is, it already contains the testators signature (remember that the testator is required to sign at the end of
the will)
The signing may be done by the testator himself, or by the agent (through writing his name under his express
direction)
What if the signature was not placed on the left margin? Still valid for substantial compliance. This may be
viewed merely as a directory requirement
If the entire document consists of only two sheets, the first containing the will and the second, the attestation
clause, there need not be any marginal signatures at all (Abangan v. Abangan 1919)
b. SIGNING IN THE PRESENCE OF THE WITNESSES
This is a mandatory requirement, again the Nera ruling
4. SIGNATURE ON EVERY PAGE BY WITNESS- THE WITNESSES MUST SIGN EVERY PAGE, EXCEPT THE LAST, ON
THE LEFT MARGIN IN THE PRESENCE OF THE TESTATOR AND OF ONE ANOTHER
a. SIGNATURE ON EVERY PAGE, EXCEPT THE LAST, ON THE LEFT MARGIN
Same requirement for witnesses as that of the testator or agent (discussed already). It is presumed that the
witnesses already signed at the end (as this is the act of subscribing).
If they didnt sign the end, at least they should sign at the left margin
Order of signing of the witnesses
The order of signing, insofar as all the signing requirements of this article are concerned, is immaterial,
provided everything is done in a single transaction. However, if the affixation of the signatures is done in
several transactions, then it is required for validity that the testator affix his signature ahead of the
witnesses.
ICASIANO VS. ICASIANO 11 SCRA 422 (1964)

In this case, one of the witnesses, signed every page of the will appropriately, but, through oversight and
mistake, neglected to sign one page. Evidence was shown that the every page of the carbon copy of the will
was signed by him, to assure that there was no fraud. Court said that failure of one witness to affix his
signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is
not per se sufficient to justify denial of probate. The law should not be so strictly and literally interpreted as
to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no
control, where the purpose of the law to guarantee the identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the
full observance of the statutory requisites; Otherwise, witnesses may sabotage the will by muddling or
bungling it or the attestation clause.
BALANE: This ruling holding cannot, and should not, be taken as a departure from the rule that the will
should be signed by the witnesses on every page.
b. SIGNING IN THE PRESENCE OF THE TESTATOR AND OF ONE ANOTHER
5. NUMBERED PAGES- ALL PAGES NUMBERED CORRELATIVELY IN LETTERS ON THE UPPER PART OF EACH PAGE
a. ALL PAGES SHOULD BE NUMBERED
Mandatory requirement, there should be pagination by means of a conventional system. The purpose of this is
to prevent insertion or removal of pages
b. NUMBERED BY LETTER ON THE UPPER PART OF EACH PAGE
Merely a directory requirement
By letters means you need to spell out the numbers, this is more thorough, similar to a check
Any conventional system of numbering will do
6. ATTESTATION CLAUSE
a. ATTESTATION CLAUSE SHOULD STATE:
i. The number of pages of the will,
ii. The fact that the testator or his agent under his express direction signed the will and every page thereof, in
the presence of the witnesses
iii. The fact that the witnesses witnessed and signed the will and every page thereof in the presence of the
testator and one another
b. IT SHOULD BE SIGNED BY THE WITNESSES, NOT THE TESTATOR, AT THE BOTTOM
The attestation is the affair of the witness, therefore, it need not be signed by the testator
Signature must be at the bottom of the attestation clause, it CANNOT be at the left margin of the page
CAGRO VS. CAGRO 92 PHIL. 1032 (1953)
In this case, the witnesses signed the page containing the attestation clause, but they signed at the left

margin, not at the bottom of the attestation.
Court said that the attestation clause is a memorandum of the facts attending the execution of the will
required by law to be made by the attesting witnesses, and it must necessarily bear their signatures.
An unsigned attestation clause cannot be considered as an act of the witnesses, since the
omission of their signatures at the bottom thereof negatives their participation. If an attestation
clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be
easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or
all of the witnesses.
Attestation is usually found at the bottom or after the end of the will
What is the Attestation Clause?
An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the
instrument has been executed before them and to the manner of execution of the same. It is a separate
memorandum or record o the acts surrounding the conduct of execution and once signed by the witnesses, it
gives affirmation to the fact that compliance with the essential formalities required by law has been observed. It
is made for the purpose of preserving in a permanent form a record of the fact that attended the execution of a
particular will, so that in case on failure of the memory of the attesting witnesses, or other casualty, such facts
may still be proved. (Caneda vs CA, 1993)
What if the attestation is in a separate document?
The fact that the attestation clause was written on a separate page has been held to be a matter of minor
importance and apparently will NOT affect the validity of the will (Villqflor v. Tobias 1927)
Should the attestation be in a language or dialect known to the testator? How about the witnesses?

In the case of ordinary or attested wills, the attestation clause need NOT be written in a language or dialect
known to the testator since it does not form part of the testamentary disposition. Furthermore, the language
used in the attestation clause likewise need NOT even be known to the attesting witnesses. The last paragraph
of Art. 805 merely requires, in such a case, the attestation clause shall be interpreted to said witness. (Caneda
vs CA, 1993)
Why does the law require that the attestation clause state the number of pages on which the will is written?
To safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase
or decrease in the pages
7. ACKNOWLEDGEMENT- ACKNOWLEDGMENT BEFORE A NOTARY PUBLIC

What does acknowledgement mean?
Means that that testator and his witnesses should avow to the notary the authenticity of their signatures and
the voluntariness of their actions in executing the testamentary disposition.
To acknowledge before means to avow, to own as genuine, to assent, to admit; and before means in front
or preceding in space or ahead of.
Should the acknowledgment before a notary, take place, at the same time as the signing of the will by the
testator and his witnesses?
No, Art. 805 does not require it, it can take place at another time
JAVELLANA VS LEDESMA 97 PHIL. 258 (1955)
Whether or not the notary signed the certification of acknowledgment in the presence of the testatrix and the
witnesses, does NOT affect the validity of the codicil. The new Civil Code does not require that the signing of
the testator, witnesses and notary should be accomplished in one single act. A comparison of Articles 805
and 806 of the new Civil Code reveals that while testator and witnesses must sign in the presence of each
other, all that is thereafter required is that every will must be acknowledged before a notary public by the
testator and the witnesses; this means that that the latter should avow to the certifying officer the
authenticity of their signatures and the voluntariness of their actions in executing the testamentary
disposition.
The separate execution out of the presence of the testatrix and her witnesses can not be said to violate the
rule that testaments should be completed without interruption. Art. 806 does not contain words requiring that
the testator and the witnesses should acknowledge the testament (before a notary) on the same day or
occasion that it was executed.
Thus, the certification of acknowledgment need not be signed by the notary in the presence of the
testator and the witnesses. Also, Article 806 does not require that the testator and the witnesses
must acknowledge on the same day that it was executed.
BALANE: Note that it is the act of acknowledgement which is required, not the signature of the notary. A
logical inference from this is also that the article does NOT require that the testator and the witnesses must
acknowledge in one anothers presence. But, if the acknowledgment is done by the testator and the
witnesses separately, all of them must retain their respective capacities until the last one has acknowledged.
Note that the notary public need NOT be present when the will is subscribed, signed, and attested to by the
testator and his witnesses.
Should the notary be present when the will was executed?
Can the notary be one of the attesting witnesses?
No, he cannot avow, assent, or admit his having signed the will in front of himself.
CRUZ VS. VILLASOR 54 SCRA 31 (1973)
In this case, of the three instrumental witnesses, one of them, was also the same time, the notary public
before whom the will was acknowledged. The court said that the will was not executed in accordance with
law. The notary public before whom the will was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having signed the will
Consequently, if the third witness were the notary public himself, he would have to avow, assent, or admit his
having signed the will in front of himself. This cannot be done because he cannot split his personality into
two so that one will appear before the other to acknowledge his participation in the making of the will. To
permit such a situation to obtain would be sanctioning a sheer absurdity.
To allow the notary public to act as third witness, or one of the attesting and acknowledging
witnesses, would have the effect of having only two attesting witnesses to the will which would be in
contravention to the provisions of Article 805 requiring at least three credible witnesses to act as such and of
Article 806 which requires that the testator and the required number of witnesses must appear before the
notary public to acknowledge the will. The result would be, as has been said, that only two witnesses

appeared before the notary public for that purpose. In the circumstances, the law would not be duly
observed.
Thus, if the notary is one of the witnesses also, he cannot be counted as one of the witnesses.
Person cannot be a notary and a witness at the same time, he cannot avow, assent, or admit his
having signed the will in front of himself.
Also, note that the notary is an officer of the court, he should be an objective person. If you make him a
witness, he gains an interest in the validity of the will.
Can a will be acknowledged before a notary in a place outside his jurisdiction?
No, the notary must act within the jurisdiction of his notarial commission
GUERRERO VS BIHIS 521 SCRA 394 (2007):
Issue was whether or not a will acknowledged by the testator and the instrumental witnesses before a
notary public acting outside the place of his commission satisfy the requirement under Article 806 of the
Civil Code?
No. One of the formalities required by law in connection with the execution of a notarial will is that it must be
acknowledged before a notary public by the testator and the witnesses. This formal requirement is one of the
indispensable requisites for the validity of a will. In other words, a notarial will that is not acknowledged
before a notary public by the testator and the instrumental witnesses is void and cannot be accepted for
probate.
The Notarial law provides: SECTION 240.Territorial jurisdiction. The jurisdiction of a notary public in a
province shall be co-extensive with the province. The jurisdiction of a notary public in the City of Manila shall
be co-extensive with said city. No notary shall possess authority to do any notarial act beyond the
limits of his jurisdiction.
In this case, the compulsory language of Article 806 of the Civil Code was not complied with and the
interdiction of Article 240 of the Notarial Law was breached. Ineluctably, the acts of the testatator, her
witnesses and the notary were all completely void.
SPECIAL REQUIREMENTS FOR ATTESTED WILLS: FOR HANDICAPPED TESTATORS
Article 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise,
he shall designate two persons to read it and communicate to him, in some practicable manner, the contents
thereof. (n)
Article 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before whom the will is acknowledged. (n)
SPECIAL REQUIREMENTS FOR HANDICAPPED TESTATORS:

1. FOR DEAF/ DEAF-MUTE TESTATORS
a. If able to read (literate): He must read the will personally
b. If unable to read (illiterate): He must designate two persons to read the will and communicate to him, in some
practicable manner, its contents.
2. FOR BLIND TESTATORS
Will will be read to him twice, once by one of the subscribing witnesses, and another by the notary
Art. 808 does not only cover actually blind persons, but also the following (they are in contemplation of the law,
blind):
a. Have very poor eyesight rendering them unable to read
b. Illiterate persons
GARCIA VS. VASQUEZ 32 SCRA 489 (1970)
Requirements of Art. 808 doesnt only cover, strictly, blind" persons, but also those who are unable to
read it by reason of very poor eyesight. In this case, testator had cataract and glaucoma, surgeries were
performed on her rendering her unable to read at short distances.
It also covers those unable to read, or illiterate persons
Balane: The suggestion is that an illiterate testator, because of his incapacity to read the will is like a
blind testator. Consequently, Article 808 should apply.
The rationale behind Art. 808 (the requirement of reading the will to the testator if he is blind or incapable of
reading the will himself as when he is illiterate), is to make the provisions thereof known to him, so that he

may be able to object if they are not in accordance with his wishes. That the aim of the law is to insure that
the dispositions of the will are properly communicated to and understood by the handicapped testator, thus
making them truly reflective of his desire, is evidenced by the requirement that the will should be read to the
latter, not only once, but twice, by two different persons, and that the witnesses have to act within the range of
his (the testator's) other senses.
Requirements of Art. 808 is mandatory, failure to prove that fulfilment of such, renders the will VOID.
BALANE: It should be noted that both the sense of Article 808 and the implication in Garcia are that the burden
of proof is upon the proponent of the will that the special requirement of the article was complied with. At the
same time, there is no requirement that compliance with the requirement be stated either in the will or the
attestation clause. Compliance must be proven by extrinsic evidence
ALVARADO VS. GAVIOLA, JR. 226 SCRA 348 (1993)
In this case, the testator was unable to read because he had very poor, blurred, and defective vision. The will
was read to him only by his lawyer; but not by the notary and one of the witnesses, they, however, followed with
their own copies and asked if he understood the will, and the testator answered in the affirmative.
Court said that he is covered under Art. 808, since it does not only apply to completely blind persons, but also,
to those incapable of reading their wills.
Also, requirements of Art. 808 were substantially complied with. It said that in a number of occasions,
substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that the
solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and
trickery but are never intended to be so rigid and inflexible as to destroy the testamentary privilege.
In this case, the spirit behind the law was served though the letter was not. Although there should be strict
compliance with the substantial requirements of the law in order to insure the authenticity of the will, the
formal imperfections should be brushed aside when they do not affect its purpose and which, when taken
into account, may only defeat the testators will. IAMKOBA
Purpose of Art. 808 is to make known to the incapacitated testator the contents of the draft of his will, this
had been accomplished in this case; substantial compliance suffices where the purpose has been served.
BALANE: Alvarado does NOT reverse or abandon the Garcia ruling, it liberalizes it. Garcia says that Art. 808 is
mandatory, Alvarado says that substantial compliance (if it attains the purpose of the law, which is the protect
the blind testator) is sufficient.
SUBSTANTIAL COMPLIANCE FOR ATTESTED WILLS
Article 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence,
defects and imperfections in the form of attestation or in the language used therein shall not render the will
invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the
requirements of Article 805. (n)
BALANE: This is a liberalization rule, an attempt to liberalize Articles 804 to 808. Substantial compliance with Articles 805
and 806 will validate the will despite some defects in the attestation clause.
RULE IN ART. 809; SUBSTANTIAL COMPLIANCE OF ART. 805

RULE: DEFECTS AND IMPERFECTIONS IN THE FORM OF ATTESTATION OR IN THE LANGUAGE USED IN THE WILL SHALL
NOT RENDER THE WILL VOID, IF IT IS PROVED THAT THE WILL WAS IN FACT EXECUTED AND ATTESTED IN
SUBSTANTIAL COMPLIANCE WITH ALL THE REQUIREMENTS OF ARTICLE 805
EXCEPT: If there is bad faith, forgery, or fraud, or undue and improper pressure and influence
CRITICISM OF ART. 809

BALANE: An attempt to temper the strictness of the formal requirements of attested wills, but the law may have thrown
away the baby with the bath-water.
Justice J.B.L. Reyes has criticized this provision as liberalization running riot. Sufficient guidelines should have been
given to limit discretion.

PROPER UNDERSTANDING OF ART. 809; HOW TO DETERMINE SUBSTANTIAL COMPLIANCE
RULE: IN ORDER FOR THE WILL TO BE VALID, SUCH DEFECTS AND IMPERFECTIONS (UNDER ART. 805 AND 806)
MUST BE REMEDIED OR SUPPLIED BY AN EXAMINATION OF THE WILL ITSELF, WITHOUT RESORTING TO EXTRINSIC
EVIDENCE.
BALANE: If the defect is something that can be remedied by the visual examination of the will itself, liberalize. If
not, then you have to be strict.
Justice JBL Reyes suggests a possible re- wording:
In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall NOT render the will invalid if such
defects and imperfections can be supplied by an examination of the will itself and it is proved that the will was
in fact executed and attested in substantial compliance with all the requirements of Article 805." (Lawyers Journal,
November 30, 1950, p. 566.)
Examples:
1. A failure by the attestation clause to state that the testator signed every page can be liberally construed,
since that fact can be checked by a visual examination.
2. A failure by the attestation clause to state that the witnesses signed in one anothers presence should be
considered a more serious, indeed a fatal, flaw, since the attestation clause is the only textual guarantee of
compliance.
CANEDA V. COURT OF APPEALS 222 SCRA 781 (1993):
In this case, the opponents to the probate were claiming that the attestation clause was fatally defective in that
while it recites that the testator indeed signed the will and all its pages in the presence of the three attesting
witnesses and states as well the number of pages that were used, the same does NOT expressly state therein the
circumstance that said witnesses subscribed their respective signatures to the will in the presence of the testator
and of each other. The will, however, complied with the other requirements of Art. 805 and 806.
Regarding the reasons of the law for requiring the formalities to be followed in the execution of wills, the Court
quoted the Code Commission in saying that the underlying and fundamental objectives permeating the
provisions on the law on wills consists in the liberalisation of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last wishes, but with sufficient safeguards and
restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and
influence upon the testator
Court said that in the absence of that statement required by law is a fatal defect or imperfection which must
necessarily result in the disallowance of the will. It cannot fall or be allowed under the substantial compliance rule
since it cannot be verified in the will itself if the will was really signed by the witnesses in the presence of the
testator and of each other. In this case, proof of the acts required to have been performed by the attesting
witnesses can be supplied only by extrinsic evidence thereof.
JBL Reyes on Art. 809: The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear
in each and every page; whether the subscribing witnesses are three or the will was notarised. All these facts
that the will itself can reveal, and the defects or even omissions concerning them in the attestation clause can
be safely disregarded. BUT, the total number of pages, and whether all persons required to sign did so in
the presence of each other must substantially appear in the attestation clause, being the only check
against perjury in the probate proceedings.
Under Art. 809, the defects or imperfections would NOT render a will invalid should it be proved that the will as
really executed and attested in compliance with Art. 805. In this regard, however, the manner of proving the
due execution and attestation has been held to be limited to merely an examination of the will itself,
without resorting to evidence aliunde, whether oral or written.
Art. 809 presupposes that the defects in the attestation clause can be cured or supplied y the text of the will or a
consideration of matters apparent therefrom which would provide the data not expressed in the attestation
clause or from which it may necessarily be gleaned or clearly inferred that the facts not sated in the omitted
textual requirements were actually complied with in the execution of the will. In other words, the defects must
be remedied by intrinsic evidence supplied by the will itself.
Omission which can be supplied by an examination of the will itself, without need of resorting to
extrinsic evidence, will NOT be fatal and, thus, would not obstruct the allowance of the probate of such
will. However, those omissions which cannot be supplied except by evidence aliunde would result in the
invalidation of the attestation clause, and ultimately, of the will itself.
Since the object of the solemnities surrounding the execution of the will is to close the door against bad faith
and fraud, to avoid substitution of the wills and testaments and to guarantee their truth and authenticity.

Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends.
Nonetheless, it was also emphasized that one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will, hence when an interpretation already given assures
such ends, any other interpretation whatsoever that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testators last will, must be disregarded.
AZUELA VS CA 487 SCRA 119 (2006)
The will in this case contains a lot of defects (as enumerated below). Court explained why each and every defect is
fatal to the validity of the will.
1. THE THREE WITNESSES TO THE WILL AFFIXED THEIR SIGNATURES ON THE LEFT-HAND MARGIN OF BOTH PAGES
OF THE WILL, BUT NOT AT THE BOTTOM OF THE ATTESTATION CLAUSE.
Court held that: the attestation clause is "a memorandum of the facts attending the execution of the will"
required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of
their signatures at the bottom thereof negatives their participation.
If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it
would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and
any or all of the witnesses
Article 805 particularly segregates the requirement that the instrumental witnesses sign each page of the
will, from the requisite that the will be "attested and subscribed by the instrumental witnesses. The
respective intents behind these two classes of signature are distinct from each other. The signatures on the
left-hand corner of every page signify, among others, that the witnesses are aware that the page they are
signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the
witnesses are referring to the statements contained in the attestation clause itself. Indeed, the attestation
clause is separate and apart from the disposition of the will. An unsigned attestation clause results
in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing
the unsigned attestation clause, such signatures cannot demonstrate these witnesses undertakings in the
clause, since the signatures that do appear on the page were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed the attestation
clause itself, but not the left-hand margin of the page containing such clause. Without diminishing the
value of the instrumental witnesses signatures on each and every page, the fact must be noted that it is the
attestation clause which contains the utterances reduced into writing of the testamentary witnesses
themselves. It is the witnesses, and not the testator, who are required under Article 805 to state the number
of pages used upon which the will is written; the fact that the testator had signed the will and every page
thereof; and that they witnessed and signed the will and all the pages thereof in the presence of the testator
and of one another. The only proof in the will that the witnesses have stated these elemental facts would be
their signatures on the attestation clause.
Thus, if the attestation was signed by the witnesses, but they didnt sign the left margin of the page
containing the attestation, this may be allowed under the substantial compliance rule
2. WILL WAS NOT NUMBERED CORRELATIVELY IN LETTERS PLACED ON UPPER PART OF EACH PAGE
There was an incomplete attempt to comply with this requisite, a space having been allotted for the insertion
of the number of pages in the attestation clause. Yet the blank was never filled in
3. THE ATTESTATION DID NOT STATE THE NUMBER OF PAGES ON WHICH THE WILL WAS WRITTEN
Court held that: a will whose attestation clause does not contain the number of pages on which the
will is written is fatally defective. The failure of the attestation clause to state the number of pages on
which the will was written remains a fatal flaw, despite Article 809.
The purpose of the law in requiring the clause to state the number of pages on which the will is written is to
safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase
or decrease in the pages.
The failure to state the number of pages equates with the absence of an averment on the part of the
instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly
just witnessed and subscribed to.
Following Caneda, there is substantial compliance with this requirement if the will states elsewhere in it how
many pages it is comprised of. In this case, however, there could have been no substantial compliance with
the requirements under Article 805 since there is no statement in the attestation clause or anywhere in the
will itself as to the number of pages which comprise the will.
4. THE WILL WHICH DOES NOT CONTAIN AN ACKNOWLEDGMENT, BUT A MERE JURAT

In lieu of an acknowledgment, the notary public, wrote "Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo
10 (sic), 1981 dito sa Lungsod ng Maynila."
Court held that: a notarial will that is not acknowledged before a notary public by the testator and the
witnesses is fatally defective, even if it is subscribed and sworn to before a notary public.
The importance of this requirement is highlighted by the fact that it had been segregated from the other
requirements under Article 805 and entrusted into a separate provision, Article 806. The non-observance of
Article 806 in this case is equally as critical as the other cited flaws in compliance with Article 805, and
should be treated as of equivalent import.
On Art. 809 in relation to Art. 805, the court said that:
Article 809 should not deviate from the need to comply with the formal requirements as enumerated under
Article 805. Whatever the inclinations of the members of the Code Commission in incorporating Article 805,
the fact remains that they saw fit to prescribe substantially the same formal requisites as enumerated in
Section 618 of the Code of Civil Procedure, convinced that these remained effective safeguards against
the forgery or intercalation of notarial wills.
Compliance with these requirements, however picayune in impression, affords the public a high degree of
comfort that the testator himself or herself had decided to convey property post mortem in the manner
established in the will. The transcendent legislative intent, even as expressed in the cited comments of
the Code Commission, is for the fruition of the testators incontestable desires, and not for the
indulgent admission of wills to probate.
Court also reiterated the comments of Justice JBL Reyes in the Caneda Ruling
LOPEZ VS LOPEZ (2012)
In this case, the the attestation clause failed to state the correct number of pages used upon which the will is
written. This was because, while the acknowledgment portion stated that the will consists of 7 pages, upon showing
it was found that it really had 8 pages including the acknowledgment portion.
Court said that the law is clear that the attestation must state the number of pages used upon which the will is
written. The purpose of the law is to safeguard against possible interpolation or omission of one or some of its
pages and prevent any increase or decrease in the pages. The statement in the Acknowledgment portion of the
subject last will and testament that it "consists of 7 pages including the page on which the ratification and
acknowledgment are written cannot be deemed substantial compliance. The will actually consists of 8 pages
including its acknowledgment which discrepancy cannot be explained by mere examination of the will itself
but through the presentation of evidence aliunde
Court cited JBL Reyes: The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether the signatures
appear in each and every page; whether the subscribing witnesses are three or the will was notarized. All these
are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause
can be safely disregarded. But the total number of pages, and whether all persons required to sign did so
in the presence of each other must substantially appear in the attestation clause, being the only check
against perjury in the probate proceedings
BALANE: It is not correct to say that the defect in stating the number of pages in a will cannot be supplied by the
will itself. In fact, the will is paginated and one can simply look at the number of pages of a will. But note that Justice
JBL Reyes himself said that failure of the attestation to state the total number of pages upon which the will is written
is a fatal defect.
SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: IN GENERAL
Article 810. A person may execute a holographic will which must be entirely written, dated, and signed by the
hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and
need not be witnessed. (678, 688a)
BASIC REQUIREMENTS OF HOLOGRAPHIC WILLS

In contrast to the requirements of an attested will, those of a holographic will are the soul of simplicity. These
requirements are three:
1. Completely handwritten by the testator
2. Dated by him; and
3. Signed by him

BALANE: The simplicity of the holographic will is its obvious advantagewith it go other benefits: secrecy,
inexpensiveness, brevity. That very simplicity, however, is also its obvious disadvantage: the danger of forgery, the
greater difficulty of determining testamentary capacity, the increased risk of duress.
JUSTICE JBL REYES: Holographic wills are peculiarly dangerous In case of persons who have written very little. The
validity of these wills depends exclusively on the authenticity of the handwriting, and if writing standards are not
procurable, or not contemporaneous, the courts are left to the mercy of the mendacity of witnesses. It is questionable
whether the recreation of the holographic testament will prove wise. Its simplicity is an invitation to forgery, specially
since its text may be extremely short: All to X or the free part to X, plus a date and signature. Such short documents
can defy real experts in handwriting, specially in the absence of contemporaneous writing standards. If we want to
permit the testator to keep his wishes secret, in order to avoid importunity, it can be done on the basis of the closed will
(testamento cerrado) of Arts. 706 to 715 of the Code of 1889 (called mystic wills in Louisiana).
BASIC REQUIREMENTS OF HOLOGRAPHIC WILLS (EXPOUNDED)

1. COMPLETELY HANDWRITTEN BY THE TESTATOR
Entire will must be handwritten by the testator himself. If the testator executes only part of the will in his
handwriting, and other parts of the will are not so written, the entire will is VOID, because it violates Art. 810.
May a blind person execute a holographic will? Yes, just because a person is blind doesn't mean he cant write,
note also that some blind persons become blind only after birth, they already learned how to write.
2. DATED BY THE TESTATOR
Date may be written by any of the conventional ways or by indicating a day of general knowledge (such as
christmas day of 2015, date of the hiroshima bombing)
Date is very important, it goes into the testamentary capacity of the testator, from this you can already know his age
and it helps determine if he was mentally capacitated.
ROXAS VS DE JESUS 134 SCRA 245 (1985):
In this case the will was improperly dated as Feb./61, it contained no day
Proponents of the probate were arguing that while the old civil code (Art. 688) required the testator to state in
his holographic will, the year, month, and day of its execution, the new civil code omitted the phrase. Thus,
what is simply required now that the holographic will should be dated (even if there was no day, such as in this
case where the will was dated Feb./61).
Court said that the liberal trend of the civil code in the manner of execution of wills should not be overlooked,
the purpose of which, in case of doubt, is to prevent intestacy. Therefore, as a general rule, the date in a
holographic will should include the day, month, and year of its execution. However, when there is no
appearance of fraud, bad faith, undue influence, and pressure and the authenticity of the will is
established and the only issue is whether or not the date Feb./61 appearing on the holographic will is
a valid compliance of Art. 810, probate of the holographic will should be allowed under the principle of
substantial compliance.
LABRADOR VS CA 184 SCRA 170 (1990):
In this case, the will was not expressly dated, but its contents (in one of the testamentary dispositions) impliedly
revealed the date on which it was written
Court said that the law does NOT specify a particular location where the date should be placed in the will.
The only requirements are that the date be in the will itself and executed in the hand of the testator.
3. SIGNED BY THE TESTATOR
Must the signature be at the wills end (understanding by this at least the logical end)?
BALANE: Yes, Article 812 seems to imply this.
May the testator sign by means of a thumbprint?
BALANE: No, the article does not seem to permit this: entirely written, dated and signed by the hand of the
testator himself.
SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: REQUIREMENT OF WITNESS/WITNESSES
Article 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at least three of such witnesses shall be required.

In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it
necessary, expert testimony may be resorted to. (619a)
APPLICABILITY OF ART. 811

This article applies only to post mortem probates; it does NOT apply to ante mortem probates since in such
cases the testator himself files the petition and, obviously, will identify the document himself
This article only applies to holographic wills.
Art. 811 is a rule of evidence
RULE IN ART. 811; TESTIMONIAL AND DOCUMENTARY REQUIREMENTS IN PROBATE OF HOLOGRAPHIC WILLS
1. TESTIMONIAL REQUIREMENT
Under Art. 811, witnesses who KNOWS the handwriting and signature of the testator are required to
explicitly declare that the will and the signature are in the handwriting of the testator.
How many witnesses are required?
a. Uncontested Will: only one witness
b. Contested Will: at least three witnesses
What does contested for the purposes of this article mean?
It is contested only if the opponents of the will allege that the will was not written or signed by the
testator himself (IMPORTANT!). Alleging fraud or vitiation of consent does not mean it is contested for the
purposes of Art. 811
Under the Rules of Court (Rule 132, Sec. 22), the genuineness of a handwriting may be proved by any of the
following:
1. A witness who actually saw the person writing the instrument
2. A witness familiar with such handwriting and who can give his opinion thereon, such opinion being an exception
to the opinion rule
3. A comparison by the court of the questioned handwriting and admitted genuine specimen thereof; and
4. Expert evidence
The three-witness rule, in case of contested wills, is MANDATORY
It is mandatory according to the Codoy Case. But for BALANE, it is merely DIRECTORY.
AZAOLA VS SINGSON 109 PHIL. 102 (1960):
In this case, the probate of a holographic will was being opposed by several persons based on undue and
improper pressure and influence. Only one witness was presented by the proponent of the probate. Probate
court denied the probate on the ground that only one witness was presented, when Art. 811 requires at least
three witness in case the holographic will is contested.
Court said that the authenticity of the will was NOT contested. It is contested when the authenticity of the
will is challenged. The opponents did not raise the issue of the wills authenticity. Thus, it is not required that at
least three witnesses be presented.
Court also said that, even assuming, that the will was contested (in that the wills authenticity is challenged):
Article 811 cannot be interpreted as to require the compulsory presentation of three witnesses to
identify the handwriting of the testator, under penalty of having the probate denied. Since no witness
may have been present at the execution of a holographic will, none being required by law, it becomes
obvious that the existence of witnesses possessing the requisite qualifications is a matter beyond the
control of the proponent.
For it is not merely a question of finding and producing any three witnesses; they must be witnesses who
know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law
does not so express) that the will and the signature are in the handwriting of the testator. There may be no
available witness acquainted with the testators hand; or even if so familiarized, the witnesses may be
unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become
an impossibility. This is the reason why the second paragraph prescribes that, in the absence of witnesses
and if the court may deem so, expert testimony may be resorted to.
Where the will is holographic, no witness need be present (Art. 810), and the rule requiring
production of three witnesses must be deemed merely permissive if absurd results are to be
avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the words if the Court deem it
necessary, which reveal that what the law deems essential is that the Court should be convinced of

the wills authenticity. Where the prescribed number of witnesses is produced and the court is convinced
by their testimony that the will is genuine, it may consider it unnecessary to call for expert evidence. On the
other hand, if no competent witness is available, or none of those produced is convincing, the Court may
still, and in fact it should, resort to handwriting experts. The duty of the court, in fine, is to exhaust all
available lines of inquiry, for the State is as much interested as the proponent that the true intention of the
testator be carried into effect. And because the law leaves it to the trial court to decide if experts are still
needed, no unfavourable inference can be drawn from a partys failure to offer expert evidence, until and
unless the court expresses dissatisfaction with the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely directory
and is not mandatory.
BALANE: This is obiter since the will was ruled as uncontested, therefore the pronouncements of the court in
assuming that the will was contested is immaterial to the disposition of the case. But, nevertheless, the obiter is
a strong one. Proof is not a matter of quantity, not a matter of numbers. To hold that a probate of a will should
require three witnesses is to make it more serious than treason (which requires only two witnesses). Art. 811 is
merely directory, what is important is the discretion of the court, it depends on the judge.
CODOY VS CALUGAY 312 SCRA 333 (1999):
In this case, the opponents of the probate of a holographic will was arguing the such will was a forgery. They
challenged the authenticity of the will. The proponents presented six witnesses, but the probate court discarded
the testimony of the four since it was worthless.
Court said that based on the language used, Article 811 of the Civil Code is mandatory. The word shall
connotes a mandatory order. We have ruled that shall" in a statute commonly denotes an imperative obligation
and is inconsistent with the idea of discretion and that the presumption is that the word shall, when used in a
statute is mandatory.
We cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if
the holographic will is contested, that law requires three witnesses to declare that the will was in the handwriting
of the deceased.
BALANE: Codoy does NOT reverse Azaola. The word shall does not always connote a mandatory intent. It
should be noted that the Codoy ruling was not based on there being less than three witnesses (there were in
fact six). Neither did the ruling state that since there were less than three witnesses (apparently only the
testimonies of two witnesses were considered at length), even if their testimony was convincing, the probate
must be denied because of the mandatory import of 811. (The testimony of these two witnesses was found to be
indecisive).The ruling in fact said that visual examination of the will reveals that the strokes are different
compared with standard documents. Therefore, the basis of the ruling was that evidence for authenticity was not
adequate, not failure to present three witnesses. Which, if analyzed closely is in accord with Azaola, which
stated that the decisive factor is not quantity, but quality. If one goes beneath the surface, Codoy, rather than
reversing Azaola, may have affirmed it.
BUT, for the purposes of the bar, Codoy REVERSES Azaola. Art. 811 requiring the production of three
witnesses in case the holographic will was contested is MANDATORY. For purposes of exams under
BALANE, it seems it is merely DIRECTORY.
2. DOCUMENTARY REQUIREMENT
In the probate of a holographic will, must the document itself must be produced?
Yes, a lost holographic will cannot be probated. UNLESS a copy is presented
GAN VS YAP 104 PHIL. 509 (1958):
In holographic wills, the document itself is the only material proof of authenticity, and as its own safeguard,
since it could at any time, be demonstrated to beor not to bein the hands of the testator himself. The
execution and the contents of a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will.
The witnesses required in Art. 811, do not need to have seen the execution of the holographic will. They may be
mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the testators hand.
However, the oppositor may present other witnesses who also know the testators handwriting, or some expert
witnesses, who after comparing the will with other writings or letters of the deceased, have come to the
conclusion that such will has not been written by the hand of the deceased. And the court, in view of such
contradictory testimony may use its own visual sense, and decide in the face of the document, whether the will
submitted to it has indeed been written by the testator. Obviously, when the will itself is not submitted, these
means of opposition and of assessing the evidence, are not available. And then, the only guaranty of
authenticity the testators handwritinghas disappeared

RODELAS VS ARANZA 119 SCRA 16 (1982):
If the holographic will has been lost or destroyed and no other copy is available, the will can not be probated
because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a
comparison between sample handwritten statements of the testator and the handwritten will. But a photostatic
copy or xerox copy of the holographic will may be allowed because comparison can be made with the
standard writings of the testator.
BALANE: This exception is very dangerous. It misread the footnote in the Gan case (which said that a
photostatic copy might be considered), which is not even obiter. A photocopy is easily forged. Handwriting
experts use the science of penlifting which is very very hard to fake in determining the authenticity of a
document. You can't apply this science to a mere photocopy.
SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: IN CASE OF ADDITIONAL DISPOSITIONS
Article 812. In holographic wills, the dispositions of the testator written below his signature must be dated and
signed by him in order to make them valid as testamentary dispositions. (n)
Article 813. When a number of dispositions appearing in a holographic will are signed without being dated,
and the last disposition has a signature and a date, such date validates the dispositions preceding it,
whatever be the time of prior dispositions. (n)

This article contemplates a situation where the testator had already made a holographic will but later decides to make
additional dispositions.
Additional dispositions are those dispositions of the testator written below his signature
It only applies to holographic wills
RULE IN ART. 813; REQUIREMENTS FOR ADDITIONAL DISPOSITIONS IN HOLOGRAPHIC WILLS

Requirements for additional dispositions in a will
They must:
1. Each be dated and signed, or
2. Each additional disposition signed and undated, BUT the last disposition signed and dated.
What if the additional dispositions are dated but not signed?
They are invalid
What if the additional dispositions are dated but not signed but the last additional disposition is dated and signed?
Only the last additional disposition is valid
What if the additional dispositions are neither dated nor signed, but the last additional disposition is dated and signed?
BALANE: A distinction should be made whether the additional dispositions were made on one occasion or on
different occasions. If they were all made on one occasion, the last additional disposition validates all and thus, all
additional dispositions are valid, but if they were made on different occasions, only the last disposition is valid.
This distinction, although theoretically valid, is in practice, almost worthless, because we are speaking here of
holographic wills and the circumstances of their execution are very often extremely difficult to prove.
SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: AUTHENTICATION IN CASE OF CHANGES
Article 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must
authenticate the same by his full signature. (n)

This article covers any of the following changes made in a holographic will:
1. Insertions
2. Cancellations
3. Erasures
4. Alterations

RULE IN ART. 814; HOW TO AUTHENTICATE CHANGES MADE IN HOLOGRAPHIC WILLS

In order to make such acts valid, the testator must authenticate it by his full signature.
Full signature does not necessarily mean the testators full name, but merely his usual and customary signature.
But it cannot merely be his initials, as seen in the case of Kalaw (unless its his usual signature?)
Effect of failure to authenticate: The change is simply considered NOT made
Is the will invalidated as a whole?
No, but at most only as to the particular words erased, corrected or inserted. Unless the portion involved is an
essential part of the will
KALAW VS RELOVA 132 SCRA 237 (1984):
In this case, the name of the sole heir (Rosa) of a holographic will was crossed out and the name of another
person (Gregorio) written above it. The testator did not properly authenticate the changes
Court said that Court said that the will was in effect, void because it had no testamentary dispositions left.
The alteration invalidated the testamentary disposition as far as both persons are concerned (the original
heir and the heir who allegedly replaced such person)menggay
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic
Will have not been noted under his signature, the Will is NOT thereby invalidated as a whole, but at most
only as respects the particular words erased, corrected or interlined
However, when as in this case, the holographic Will in dispute had only one substantial provision,
which was altered by substituting the original heir with another, but which alteration did not carry the
requisite of full authentication by the full signature of the testator, the effect must be that the entire Will is
voided or revoked for the simple reason that nothing remains in the Will after that which could
remain valid.
BALANE: The court, in this case, did not give effect to the insertion of Gregorios name; why, however, was
the cancellation of the original testamentary institution (the cancellation of rosa) given effect? That
cancellation was not done in the way mandated by the article, because it was not properly authenticated, yet
the court gave it effect by invalidating the disposition. The cancellation of Rosa should not have been given
effect, thus, the disposition should have been given effect, and Rosa as the universal heir. The court should
have cited Art. 830 in giving effect to the cancellation of the original heir. Art. 830 pertaining to revocation by
means of cancellation. But even if we apply Art. 830, the cancellation will still be erroneous since Art. 814 is
the specific provision, Art. 830 being only a general provision. This decision is really a defective one.
What if there was an insertion by a third person, in the holographic will?
If the insertion was authenticated by the testator, the will is VOID because its not completely in his handwriting
If the insertion was NOT authenticated, the will is valid, because the insertion is not deemed made.
SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: PLACE OF EXECUTION IN RELATION TO THE

TESTATORS NATIONALITY
Article 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms
established by the law of the country in which he may be. Such will may be probated in the Philippines. (n)
Article 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities
prescribed by the law of the place in which he resides, or according to the formalities observed in his country,
or in conformity with those which this Code prescribes. (n)
Article 817. A will made in the Philippines by a citizen or subject of another country, which is executed in
accordance with the law of the country of which he is a citizen or subject, and which might be proved and
allowed by the law of his own country, shall have the same effect as if executed according to the laws of the
Philippines. (n)
Article 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons
are binding upon citizens of the Philippines, even though living abroad. (9a)
Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by
the laws of the country in which they are executed.

When the acts referred to are executed before the diplomatic or consular officials of the Republic of the
Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their
execution.
APPLICABILITY OF ART. 815, 816, AND 817

These three articles cover the rules of formal validity in the following instances:
1. Filipino abroad (Art. 815)
2. Alien abroad (Art. 816)
3. Alien in the Philippines (Art. 817)
RULES IN ART. 815, 816, 817; AS TO WHAT LAW ON FORMAL VALIDITY SHALL APPLY
By combining the three articles with Art. 15 and 17, there are identical rules for Filipinos and Aliens.
Every testator, whether Filipino or Alien, wherever he may be, has five choices as to what law to follow for
the form of his will:
1. Law of his citizenship
Art. 816 and 817 for aliens; applying to Filipinos by analogy, Art. 15
2. Law of the place of execution
Art. 17
3. Law of his domicile
Art. 816 for aliens abroad; applying to aliens in the Philippines and to Filipinos by analogy
4. Law of his residence
Art. 816 for aliens abroad; applying to aliens in the Philippines and to Filipinos by analogy
5. Philippine law
Art. 816 and 817 for aliens; Art. 15, applying to Filipinos by analogy
Example: A french person who owns several properties in the Philippines is domiciled in Germany, resides in Brazil
because he works there, but is in vacation in Japan
He can either follow Philippine law, German law (place of domicile), Brazilian law (place of residence), Japanese
law (place of execution), or French law (place of citizenship).
SPECIAL REQUIREMENTS FOR HOLOGRAPHIC WILLS: PROHIBITION ON JOINT WILLS
Article 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their
reciprocal benefit or for the benefit of a third person. (669)
Article 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be
valid in the Philippines, even though authorized by the laws of the country where they may have been
executed. (733a)
Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by
the laws of the country in which they are executed.
When the acts referred to are executed before the diplomatic or consular officials of the Republic of the
Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their
execution.
APPLICABILITY OF ART. 818; DEFINITION OF JOINT WILLS

A JOINT WILL IS ONE DOCUMENT WHICH SERVES AS THE WILL OF TWO OR MORE PERSONS
If there are separate documents, each serving as one independent will (even if they are written on the same sheet),
they are NOT joint wills prohibited by this article.
What a single paper contains the two wills of two persons, one will executed in the front page, the other in
the back page?

BALANE: It is NOT a joint will, since there are two separate documents. The fault is in the wording of the law in
saying one instrument. What the law prohibits is not two wills on the same sheet of paper but two wills in one
document.
Are reciprocal wills, joint wills?
Not necessarily, reciprocal wills are sometimes used by married couples or life partners as a simple means of
securing the transfer of property to the other spouse upon death. Reciprocal wills between spouses are where
basically mirror images of one another
RULES IN ART. 818; PROHIBITION ON JOINT WILLS

1. UNDER ART. 818, JOINT WILLS EXECUTED BY FILIPINOS ARE VOID, REGARDLESS OF THE PLACE OF EXECUTION.
A joint will is VOID, even when executed by Filipinos in a foreign country, and such joint wills are authorized by the
laws of such country.
This is an exception tot he rule on lex loci celebracionis (in Art. 17)
Several reasons why they are prohibited:
1. The limitation on the modes of revocation (such as one of the testators would not be able to destroy the
document without also revoking it as the will of the other testator, or in any event, as to the latter, the problem
of unauthorized destruction would come in)
2. The diminution of testamentary secrecy
3. The danger of undue influence
4. The danger of one testator killing the other (such that if they executed the joint will for their reciprocal benefit,
as in the case when they are the heirs of each other, especially if husband and wife.)
Reciprocal wills are NOT prohibited as long as they are executed in separate documents (though it encourages
murder)
2. JOINT WILLS EXECUTED BY FILIPINOS IN A FOREIGN COUNTRY ARE VOID IN THE PHILIPPINES, EVEN THOUGH
AUTHORIZED BY THE LAWS OF THE COUNTRY WHERE THEY MAY HAVE BEEN EXECUTED
In other countries, joint wills may be allowed
In Germany, joint wills are allowed if executed by spouses. But even if Filipino spouses, who are in Germany,
executed a joint will, it is void under Art. 819.
Note that under Art. 17, the forms and solemnities of wills is governed by the laws of the country in which they are
executed. So, the general rule that the law of the place of the execution of the will applies, if this is the choice of the
testator. The prohibition on joint wills is an exception to this rule.
What if executed by a foreigner? Is the joint will valid?
Two views. One view says that the will is valid, under Art. 17, 816 and 817 in relation to the principles of
international law (following law of citizenship, residence, place of execution, or domicile, given that such is a
foreign country). On the other hand, the other view says it is void, under the expressed public policy against
joint wills
First view is better, I think, because of Art. 17. This was asked in the recent 2015 bar exams!
Outline on Validity of Joint Wills
PLACE OF EXECUTION FILIPINO ALIEN
Philippines Void Two views

1. Valid if valid in their laws (Art. 816)
2. Void because against public policy
Abroad Void Valid if valid in their laws (Art. 17)

(Art. 819, even if authorized by the law of the
place of execution. This is an exception to the
permissive provisions of Art. 17 and 815)
Note: When executed by a Filipino and Alien, the joint will is always VOID as to the Filipino; but as to the alien, Art. 816 or
17 applies depending on the place of execution
SUBSECTION 4: WITNESSES TO WILLS
COMPETENCY OF WITNESSES IN ATTESTED WILLS

Article 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb,
and able to read and write, may be a witness to the execution of a will mentioned in article 805 of this Code.
(n)
Article 821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a document, perjury or false testimony. (n)

It applies only in attested wills.
It covers witnesses to the execution of a will mentioned in Article 805
SIX QUALIFICATIONS OF WITNESSES OF ATTESTED WILLS

1. MENTAL CAPACITY- Of sound mind
2. AGE- At least 18 years of age
3. PHYSICAL CAPACITY- Not blind, deaf, or dumb
4. LITERATE- Able to read and write
5. DOMICILE- Domiciled in the Philippines
6. MORAL FITNESS- Must not have been convicted of falsification of a document, perjury, or false testimony
BALANE: There is some controversy whether that requirement is applicable in cases of wills executed abroad. The
controversy is too sterile and picayune to merit discussion: the Gordian knot is simply cut by the testator resorting to
one of two very easy solutions in case there is no such witness readily availableeither execute a holographic will
or elect to follow the law of the place of execution (Articles 17 and 815).
Art. 820 and 821 pertains to the competency of a witness to be such. But remember Art. 805 uses the word
credible pertaining to the witnesses. What are the distinctions?
GONZALES VS CA (1979):
The competency of a person to be an instrumental witness to a will is determined by the statute, that is the
qualifications under Art. 820 and 821. His credibility depends on the appreciation of his testimony and arises
from the belief and conclusion of the Court that said witness is telling the truth. Competency as a witness is one
thing, and it is another to be a credible witness, so credible that the Court must accept what he says. Trial courts
may allow a person to testify as a witness upon a given matter because he is competent, but may thereafter
decide whether to believe or not to believe his testimony.
Must the competence and credibility of a witness first be proved or be established before a probate of a will
may be allowed?
There is NO requirement that it must first be established in the record the good standing of the witness in the
community, his reputation for trustworthiness and reliableness, his honesty and uprightness, because such
attributes are presumed of the witness unless the contrary is proved otherwise by the opposing party.
In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the
execution of a will or testament and affirm the formalities attendant to said execution.
The rule is that the instrumental witnesses in order to be competent must be shown to have the qualifications
under Article 820 of the Civil Code and none of the disqualifications under Article 821 and for their testimony to
be credible, that is worthy of belief and entitled to credence, it is not mandatory that evidence be first established
on record that the witnesses have a good standing in the community or that they are honest and upright or
reputed to be trustworthy and reliable, for a person is presumed to be such unless the contrary is established
otherwise. In other words, the instrumental witnesses must be competent and their testimonies must be credible
before the court allows the probate of the will they have attested (Gonzales vs CA 1979)
SUPERVENING INCOMPETENCE OF A WITNESS
Article 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their
becoming subsequently incompetent shall not prevent the allowance of the will.

As in the case of testamentary capacity (Art. 801), the time of the execution of the will is the only relevant temporal
criterion in the determination of the competence of the witnesses
INCAPACITY OF THE WITNESSES TO SUCCEED
Article 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a
devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or
spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or
child, be void, unless there are three other competent witnesses to such will. However, such person so
attesting shall be admitted as a witness as if such devise or legacy had not been made or given. (n)
Article 1027. The following are incapable of succeeding:

(4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under
such witness, spouse, parents, or children

Art. 823 talks about the capacity of a witness to suceed as an heir, devisee, or legatee, NOT his capacity to be a
witness
BALANE: This article is misplaced here, since this is not concerned with capacity to be a witness, but with capacity
to succeed. Note that the person becomes incapacitated as an heir/devisee/legatee but not as a witness
The application of this article is NOT limited to devisees and legatees. Although the provisions of the article seem to
limit its application to devisees and legatees, the disqualification will extend as well to heirs. The intent of the law is to
cover all testamentary institutions
The reason for the infelicitous wording of the article as pointed out by Tolentino, is the injudicious borrowing from
foreign law (American Law in this case)
Note that this disqualification is reiterated in Art. 1027 (4) and there it is not limited to devises and legacies.
RULE IN ART. 823; INCAPACITY OF WITNESSES TO SUCCEED

RULE: A TESTAMENTARY DISPOSITION IN FAVOUR OF A WITNESS IS VOID
EXCEPTION: IF THERE ARE THREE OTHER WITNESSES, THE DISPOSITION IS VALID
This article lays down a disqualification of a witness to succeed to a legacy or devise when there are only three
witnesses.
The competence or qualification of the person as a witness is NOT affected.
Assuming all other requisites for formal validity being present, the will is perfectly valid but the witness (or the relatives
specified in this article) cannot inherit
The disqualification applies only to the testamentary disposition made in favor of the witness or the specified relatives
(spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child).
If the party is also entitled to a legitime or an intestate share, that portion is NOT affected by the parties witnessing
the will
Why are the witnesses prohibited or incapable from succeeding?
BALANE: The witnesses must be objective to the validity of the will. They must not have any interest in the will. if
they have an interest such as a devise or legacy, then obviously they will be a proponent to the will's validity to
protect their interest. They might perjure themselves in the probate to protect their interest. (recit ko ito hehe :D)
CREDITORS AS COMPETENT WITNESSES
Article 824. A mere charge on the estate of the testator for the payment of debts due at the time of the
testator's death does not prevent his creditors from being competent witnesses to his will. (n)
BALANE: Obviously, because this is not a testamentary disposition
SUBSECTION 5: CODICILS AND INCORPORATION BY REFERENCE

DEFINITION OF A CODICIL
Article 825. A codicil is supplement or addition to a will, made after the execution of a will and annexed to be
taken as a part thereof, by which disposition made in the original will is explained, added to, or altered. (n)
CODICIL VS SUBSEQUENT WILL

The distinction between a codicil and a subsequent will is that the former, by definition, explains, adds, or alters a
disposition in a prior will
A subsequent will makes independent and distinct dispositions
The distinction is purely academic because Art. 826 requires the codicil to be in the form of a will anyway
VALIDITY OF CODICILS
Article 826. In order that a codicil may be effective, it shall be executed as in the case of a will. (n)
RULE IN ART. 826; VALIDITY OF CODICILS

RULE: CODICILS MUST COMPLY WITH THE FORMAL REQUIREMENTS OF A WILL (ATTESTED OR HOLOGRAPHIC),
OBSERVING THE RESPECTIVE RULES, IN ORDER TO BE EFFECTIVE.
Must the codicil conform to the form of the will to which it refers?
No, the law does not require this. Thus, an attested will may have a holographic codicil; a holographic will may have
an attested codicil
VALIDITY OF INCORPORATED DOCUMENTS OR PAPERS TO AN ATTESTED WILL
Article 827. If a will, executed as required by this Code, incorporates into itself by reference any document or
paper, such document or paper shall not be considered a part of the will unless the following requisites are
present:
(1) The document or paper referred to in the will must be in existence at the time of the execution of the will;
(2) The will must clearly describe and identify the same, stating among other things the number of pages
thereof;
(3) It must be identified by clear and satisfactory proof as the document or paper referred to therein; and
(4) It must be signed by the testator and the witnesses on each and every page, except in case of voluminous
books of account or inventories. (n)
APPLICABILITY OF ART. 827; INCORPORATION BY REFERENCE

This article can refer only to such documents as inventories, books of accounts, documents of title, and papers of
similar nature
The document should NOT make testamentary dispositions, for then the formal requirement for wills would be
circumvented.
This article covers only attested wills. The wording of the article suggests that holographic wills cannot incorporate
documents by reference.
Paragraph 4 of the article requires the signatures of the testator and the witnesses on every page of the
incorporated document (EXCEPT voluminous annexes).
BALANE: It seems, therefore, that only attested wills can incorporate documents by reference, since only attested
wills are witnessed. Unless, of course, the testator executes a holographic will, and superfluously, has it witnessed.
But the liberal view says that this article also applies to holographic wills, meaning holographic wills can also
incorporate documents and papers by reference.

RULE IN ART. 827; REQUIREMENTS FOR INCORPORATION BY REFERENCE
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.
The requirements may be established by extrinsic evidence (outside of the will) in the case of the first, third and
fourth. The second requisite is established by the will itself.
The purpose of this rule is for authentication, to prevent substitution of the incorporated documents.
SUBSECTION 6: REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS
PROHIBITION ON WAIVER OR RESTRICTION ON THE RIGHT TO REVOKE A WILL
Article 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this
right is void. (737a)
ABSOLUTE REVOCABILITY OF WILLS

A will is essentially revocable or ambulatory. This characteristic cannot be waived even by the testator. A will is
revocable at the testators pleasure during his lifetime. There is no such thing as an irrevocable will.
This characteristic of a will is considered with the principle, enunciated in Art. 777, that successional rights vest only
upon death.
A will is effective only upon the testators death, and he dies, the will is revocable.
It is revocable even if the testator expresses in his will that it is irrevocable.
RULES AS TO THE PLACE OF REVOCATION
Article 829. A revocation done outside the Philippines, by a person who does not have his domicile in this
country, is valid when it is done according to the law of the place where the will was made, or according to the
law of the place in which the testator had his domicile at the time; and if the revocation takes place in this
country, when it is in accordance with the provisions of this Code. (n)

Art. 829 covers revocations made outside the Philippines and made by a person who is NOT domiciled in the
Philippines.
It covers revocation made in the Philippines
RULES IN ART. 829; RULES AS TO THE PLACE OF REVOCATION

1. If revocation is made in the Philippines: Follow Philippine law
2. If revocation is made outside the Philippines
a. If testator is NOT domiciled in the Philippines:
Either:
i. Follow the law of the place where the will was made, or
ii. Follow the law of the place where the testator was domiciled at the time of the revocation
b. If testator is domiciled in the Philippines (This situation is not governed by Art. 829)
Either:
i. Follow Philippine law (consistently with the domiciliary principle followed by this article
ii. Follow the law of the place of revocation (consistently with the principle of lex loci celebracionis in Art. 17)
iii. Follow the law of place where the will was made (by analogy with the rules on revocation where the testator
is a non-philippine domiciliary)
BALANE: Note that the law follows the domiciliary theory. It is curious that it departs from the nationality theory.

MODES OF REVOCATION
Article 830. No will shall be revoked except in the following cases:

(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills; or
(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator
himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled,
or obliterated by some other person, without the express direction of the testator, the will may still be
established, and the estate distributed in accordance therewith, if its contents, and due execution, and the
fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of
Court. (n)
Article 831. Subsequent wills which do not revoke the previous ones in an express manner, annul only such
dispositions in the prior wills as are inconsistent with or contrary to those contained in the later wills. (n)

This article enumerates the modes of revoking a will under Philippine law
MODES OF REVOKING WILLS

1. OPERATION OF LAW: BY IMPLICATION OF LAW
The revocation may be total or partial
Examples:
a. Preterition (Art. 854)
b. Legal Separation (Art. 63, par. 4 of the Family Code)
c. Unworthiness to Succeed (Art. 1032)
d. Transformation, alienation, or loss of the object devised or bequeathed (Art. 957)
e. Judicial demand of a credit given as a legacy (Art. 936)
2. SUBSEQUENT WILL OR CODICIL: BY SOME WILL, CODICIL, OR OTHER WRITING EXECUTED AS PROVIDED IN
CASE OF WILLS
The revocation may also be total or partial
Requisites for a valid revocation by a subsequent instrument:
a. The subsequent instrument must comply with the formal requirements of a will (It must be valid and
probated)
Thus, an insane person cannot revoke his will which as executed when he was sane.
The will must be admitted into probate (Molo vs Molo)
b. The testator must possess testamentary capacity (Capacity to revoke)
c. The subsequent instrument must either contain an express revocatory clause or be incompatible with
the prior will (Art. 831)
Revocation by a subsequent instrument may be express or implied.
i. Express Revocation: if the subsequent instrument expressly provides such revocation
Revocatory effect: Normally, the prior will is totally revoked, but really it depends on the revocatory
clause
ii. Implied Revocation: if the subsequent instrument is inconsistent and contrary to such prior will
Revocatory effect: Annul only such dispositions in the prior wills as are inconsistent with or contrary
to those contained in the later wills (Art. 831)
Mere subsequent wills do not ipso facto revoke prior wills. A person may die with two wills, this is not
prohibited. There must be an express revocation (through a revocation clause) or a implied revocation
(through incompatibility
3. BY PHYSICAL DESTRUCTION: BY BURNING, TEARING, CANCELLING, OR OBLITERATING THE WILL WITH THE
INTENTION OF REVOKING IT
The law gives four ways of destroying:
a. Burning
b. Tearing
c. Cancelling

d. Obliterating
These should cover the scope of destruction
The physical destruction may be done by either:
a. Testator personally
b. Testators agent, provided it is done:
i. In the presence of such testator and
ii. By his express direction
Note that both requisites must concur if the destruction is done by the testators agent (Molo vs Molo).
Effect of Unauthorised Destruction
It depends if the will is attested or holographic.
a. Attested Will: The will may still be proved as lost or destroyed (Art. 830 par. 3 and Rule 76, Sec. 6 of
the Rules of Court).
To give effect to an attested will which was destroyed without authority, the following must be proved and
established under the Rules of Court (Art. 831, par. 3):
i. The wills contents
ii. Due execution, and
iii. The fact of its unauthorized destruction
No will shall be proved as a lost or destroyed will unless the following are established (Rule 76, Sec. 6 of
the Rules of Court):
i. The wills execution and validity of the same be established
ii. The will has been in existence at the time of the death of the testator, OR is shown to have been
fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge
iii. The wills provisions are clearly and distinctly proved by at least two (2) credible witnesses.
When a lost or destroyed will is proved, the provisions thereof must be distinctly stated and certified by
the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are
filed and recorded.(Rule 76, Sec. 6 of the Rules of Court)
How do you prove the things enumerated?
Present the instrumental witnesses to the will and the notary before whom it was acknowledged.
d. Holographic Will: The will CANNOT anymore be probated if it is lost or destroyed, even if such was
unauthorized.
This is because in holographic wills, the will itself must be presented in probate. As the document itself is
the only material proof of authenticity (Gan vs Yap)
EXCEPTION: A copy of the holographic will may be admitted into probate (Rodelas vs Aranza)
Elements of Valid Revocation by Physical Destruction
a. CORPUS (Body): Physical act of destruction
The physical destruction itself, there must be evidence of physical destruction.
Total destruction is not required, as long as evidence on the face of the will shows act to revoke.
BALANE: There must be some sort of destruction, no matter how small
b. ANIMUS (Spirit): Intention to Revoke
Consists of:
i. Capacity and intent to revoke
ii. The testator must have completed everything he intended to do
The corpus and animus must concur. One without the other will NOT produce revocation.
Example of absence of corpus: If the testator categorically says he will revoke the will and the will is
considered revoked, but doesnt not actually revoke it, there was no revocation, as there was no physical
act of destruction
Example of absence of animus: If the testator tears the will into 2 pieces but tapes it up later, there is no
revocation, as the testator had not completed everything he had intended to do.
TESTATE ESTATE OF ADRIANA MALOTO VS. COURT OF APPEALS 158 SCRA 451 (1988):
It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an
effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator.
In this case, while animus revocandi, or the intention to revoke, may be conceded, for that is a state of
mind, yet that requisite alone would not suffice. Animus revocandi is only one of the necessary elements
for the effective revocation of a last will and testament.
The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliterating,
or cancelling the will carried out by the testator or by another person in his presence and under his
express direction.

It is not imperative that the physical destruction be done by the testator himself. It may be performed by
another person but under the express direction and in the presence of the testator. Of course, it goes without
saying that the document destroyed must be the will itself.
Presumption of Revocation
The loss or unavailability of a will may, under certain circumstances, give rise to the presumption that it had
been revoked by physical destruction when:
a. It is shown to have been in the possession of the testator, when last seen, or
b. The testator had ready access to the will and it cannot be found after his death.
GAGO VS. MAMUYAC 49 PHIL. 902 (1927):
The law does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore
becomes difficult at times to prove the revocation or cancellation of wills. The fact that such cancellation or
revocation has taken place must either remain unproved or be inferred from evidence showing that after due
search the original will cannot be found.
Where a will which cannot be found is shown to have been in the possession of the testator, when
last seen, the presumption is, in the absence of other competent evidence, that the same was
cancelled or destroyed. The same presumption arises where it is shown that the testator had ready
access to the will and it cannot be found after his death.
It will not be presumed that such will has been destroyed by any other person without the knowledge or
authority of the testator.
The force of the presumption of cancellation or revocation by the testator, while varying greatly, being weak
or strong according to the circumstances, is never conclusive, but may be overcome by proof that the will
was not destroyed by the testator with intent to revoke it.
In a great majority of instances in which wills are destroyed for the purpose of revoking them there is no
witness to the act of cancellation or destruction and all evidence of its cancellation perishes with the testator.
Copies of wills should be admitted by the courts with great caution. When it is proven, however, by proper
testimony that a will was executed in duplicate and each copy was executed with all the formalities and
requirements of the law, then the duplicate may be admitted in evidence when it is made to appear that the
original has been lost and was not cancelled or destroyed by the testator.
EFFECTIVITY OF THE REVOCATION CLAUSE IN CASE OF REVOCATION BY SUBSEQUENT WILL
Article 832. A revocation made in a subsequent will shall take effect, even if the new will should become
inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their
renunciation. (740a)

Art. 832 talks about revocation by subsequent will or codicil, whether express or implied
RULE IN ART. 832; RULE AS TO THE EFFECTIVITY OF A REVOCATION CLAUSE

RULE: A VALID REVOCATION MADE IN A SUBSEQUENT INSTRUMENT IS ABSOLUTE, IT IS EFFECTIVE EVEN IF THE
HEIRS IN SUCH INSTRUMENT ARE UNQUALIFIED OR UNWILLING TO INHERIT.
But the revoking will must be valid and it remains valid even if the heirs instituted are disqualified.
The efficacy of the revocatory clause does NOT depend on the testamentary dispositions of the revoking will,
unless the testator so provides.
Revocation is, generally speaking, an absolute provision, independent of the acceptance or capacity of the new
heirs.
Example: X executes a will, naming A as his universal heir. Two years later, X executes a second will revoking the
first and naming B as his universal heir. X then dies and B renounces the inheritance. The first will remains revoked.
The rule laid down in this article will apply even if the revocation of the prior will by the subsequent will is implied
(by incompatibility of provisions, not by a revocatory clause).The intent of the testator to set aside the prior
institutions is, in either case, clear.
EXCEPTION: IN CASE OF CONDITIONAL REVOCATIONS FALLING UNDER THE DOCTRINE OF DEPENDENT RELATIVE
REVOCATION, THE REVOCATION MADE IN A SUBSEQUENT WILL MAY BE INEFFECTIVE.

An exception to the general rule is an instance where the testator provides in the subsequent will that the
revocation of the prior one is dependent on the capacity or acceptance of the heirs, devisees, or legatees instituted
in the subsequent will.
CONDITIONAL REVOCATIONS (DOCTRINE OF DEPENDENT RELATIVE REVOCATION)

Summary of the rules in Art. 830, 832 and the Doctrine of Relative Revocation
1. A PRIOR WILL IS VALID AND EFFECTIVE IF THE REVOKING WILL IS VOID OR REVOKED.
This is the rule in Art. 830 in relation to Molo vs Molo
In this case, there is no revocation
2. A PRIOR WILL IS STILL REVOKED EVEN IF HEIRS IN THE SUBSEQUENT WILL CANNOT INHERIT (ART. 832)
The heirs cannot inherit due to predecease, incapacitated, or renunciation.
Because the revoking will is nonetheless valid, its validity does not depend on the capacity or willingness of the
heirs
EXCEPTION: UNDER THE DOCTRINE OF DEPENDENT RELATIVE REVOCATION, IN THIS CASE, THE PRIOR WILL
IS NOT REVOKED
This doctrine applies if the revocation is conditional, meaning the testator intended the revocation to be
dependent on the effectivity of the institutions of subsequent wills
In other words, the testator intended that if the subsequent heirs either predecease, are incapacitated or are
unwilling to inherit, he would not have revoked the prior will
A dependent relative revocation applies only if it appears that the testator intended his act of
revocation to be conditioned on the making of a new will or on its validity, or efficacy.
The testators intent to revoke was conditional on the validity of the subsequent will.
Definition and Scope of the Doctrine of Dependent Relative Revocation
The rule is established that where the act of destruction is connected with the making of another will so as
fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of
the new disposition intended to be substituted, the revocation will be conditional and dependent upon the
efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is
inoperative, the revocation fails and the original will remains In full force.(Molo v. Molo)
This is the doctrine of dependent relative revocation. The failure of the new testamentary disposition, upon whose
validity the revocation depends, is equivalent to the non-fulfillment of a suspensive condition, and hence prevents
the revocation of the original will. But a mere intent to make at some time a will in place of that destroyed will not
render the destruction conditional. It must appear that the revocation is dependent upon the valid execution of a
new will. (Molo v. Molo)
What if the institution of heirs, legatees, or devisees in the subsequent will is subject to a suspensive
condition, is the revocation of the prior will absolute or conditional?
It always depends on the testators intent. If the subsequent will contains a revocatory clause which is absolute
or unconditional, the revocation will be absolute, and the happening or non-happening of the suspensive
condition will be immaterial. If, however, the testator states in the subsequent will that the revocation of the prior
will is subject to the occurrence of the suspensive condition, or if the will does not contain a revocatory
clause, the revocation will depend on whether the condition happens or not.
If the suspensive condition on which an institution depends does not occur, the institution is deemed never to have
been made and the prior institution will be efficacious. This is in accord with the juridical nature of suspensive
conditions, and is an instance of dependent relative revocation
Is the rule of dependent relative revocation applicable if the revocation of the will is by physical destruction?
In Molo, the Supreme Court held, in an obiter, that the physical destruction of the will did not revoke it, on the
inference, drawn by the Court, that the testator meant the revocation to depend on the validity of a new one.
MOLO V. MOLO (90 PHIL. 37)
This doctrine is known as that of dependent relative revocation, and is usually applied where the testator
cancels or destroys a will OR executes an instrument intended to revoke a will with a present intention to
make a new testamentary disposition as a substitute for the old, and the new disposition is not made or, if made,
fails of effect for some reason.
The doctrine is not limited to the existence of some other document, however, and has been applied where a
will was destroyed as a consequence of a mistake of law
In this case, the court concluded that, the destruction of the prior will by the testator cannot have the effect of
defeating the effectivity of such prior will because of the fact that it is founded on the mistaken belief that the
subsequent will of 1939 has been validly executed and would be given due effect.

The theory on which this principle is predicated is that the testator did not intend to die intestate. And this
intention is clearly manifest when he executed two wills on two different occasions and instituted his wife as
his universal heir. There can therefore be no mistake as to his intention of dying testate.
In Molo, the testator executed a subsequent will 21 years after execution a prior will. The subsequent will
contained a revocation clause but was NOT admitted into probate for failure to comply with the requirements of
law. Thus, the subsequent will was void. The court held that the first will was still effective and not considered
revoked since the the subsequent will containing the revocatory clause was void. Thus, if the will is void, the
revocatory clause in such will is likewise void and inefficacious.
The opponents countered by saying that the prior will remains void as it could not be found and thus
presumed to have been destroyed by the testator (note that this is also a mode of revocation, by physical
destruction)
Court held that even if such will can be considered physically destroyed, the revocation cannot be given
effect due to the Doctrine of Dependent Relative Revocation. The prior will remains valid.
BALANE:
Apart from the fact that the statement is obiter (the facts did not clearly show that the will had been
destroyed), it is arguable whether the prior will should be deemed to subsist despite its physical destruction.
Can it not be argued that the act of the testator in destroying the will in fact confirmed his intent to revoke it?
Was the Supreme Court not drawing too remote an inference? The case of Diaz v. De Leon might be more
instructive.
The prior will should not be given effect because by physical destruction, the testator definitely shows his
intent to revoke it. First by executing a subsequent will with a revocation clause and second by physical
destruction. So why would you give effect to such prior will?
DIAZ VS. DE LEON (43 PHIL. 413 [1922])
In this case, a subsequent will was executed by the testator which contained a revocation clause to revoke his
prior will. The testator also revoked the prior will by means of physical destruction. However, the subsequent will
was later disallowed in probate as it did not comply with the requirements of validity.
The issue was whether or not the prior will should be given effect
Court said it should NOT be given effect. The intention of revoking the will is manifest from the established fact
that the testator was anxious to withdraw or change the provisions he had made in his first will. This fact is
disclosed by the testators own statements to the witnesses.The original will herein presented for probate having
been destroyed with animo revocandi, cannot now be probated as the will and last testament.
Thus, if the prior will was revoked not only by express revocation by a subsequent will but also with physical
destruction it can be said that the intent of the testator was to definitely revoke such prior will. It seems that the
doctrine of Dependent Relative Revocation is NOT applicable to give it effect.
For DRR to apply, it must clearly appear that the testator intended the first will to be effective if the subsequent
will later turns out to be void or ineffective.
REVOCATION BASED ON FALSE OR ILLEGAL CAUSES
Article 833. A revocation of a will based on a false cause or an illegal cause is null and void. (n)
APPLICABILITY OF ART. 833; REVOCATIONS BASED ON FALSE CAUSES

1. REVOCATIONS BASED ON FALSE CAUSE
The following requisites must be present:
a. The cause must be concrete, factual and NOT purely subjective
The testator must state the reason or cause of the revocation for Art. 833 to apply, if he does not, then the
revocation is valid under Art. 833
The cause must not be merely based on the testators personal judgment, opinions or bias
BALANE: If, for example, a testator were to revoke on the stated ground that he has learned that the heir
was an Ilocano and all Ilocanos are bad, the revocation would be valid. The ground is blind and irrational
prejudice (as all prejudices are) but a purely subjective one and will not invalidate the revocation under this
article
b. It must be false
c. The testator must NOT know of its falsity

In other words, the testator has a misconception of the truthfulness of the cause
d. It must appear from the will that the testator is revoking because of the cause which is false
2. REVOCATIONS BASED ON ILLEGAL CAUSES
If the cause is simply illegal, then the rule in Art. 833 also applies.
It must be noted, however, that the illegal cause should be stated in the will as the cause of the revocation
Art. 833 covers ANY kind of revocation
RULE IN ART. 833; RULE IF THE REVOCATION BY THE TESTATOR IS BASED ON A FALSE OR ILLEGAL CAUSE
RULE: A REVOCATION OF A WILL BASED ON A FALSE CAUSE OR AN ILLEGAL CAUSE IS VOID.
Wills are revocable ad nutum, at will or at the testators pleasure (Art. 828). Testator may revoke his will for any
reason or no reason at all. He does not need a cause for revoking
The rule in Art. 833 is based on the fact that the law respects the testators true intent, such at it sets asides a
revocation that does not reflect such intent.
The extension of the coverage of this Article to illegal causes in effect restricts the testators freedom to revoke.
There is no question of mistake in such a case, which might vitiate the testators autonomy of will.
Balane: If the principle is that a will is revocable ad nutum, then it should indeed be revocable at pleasure,
whatever the testators motives or reasons might be, and however impure or blemished they might be, as long
only as he acts freely and knowingly. A testamentary disposition is, after all, a gratuitous grant, and can be
withdrawn for any reason, or for no reason. The rule in this article regarding nullity of revocation for an illegal
cause limits this freedom, albeit for laudable public policy considerations
INAPPLICABILITY OF ART. 833 IN COMPLETE PHYSICAL DESTRUCTION OF HOLOGRAPHIC WILLS

Note that the Rule in Art. 833 does NOT apply in case the mode of revocation was physical destruction (complete
destruction rather) of a holographic will.
Such as by burning, tearing or obliterating the will in a manner as to completely destroy the will
If the revocation is by complete physical destruction, and the revoked will is holographic, then though the revocation
be null and void, probate will not be possible since in a probate of a holographic will, the will itself must be
presented. (Gan v. Yap, Article 811), unless a copy survives (Rodelas v. Aranza)
What is the holographic will was revoked by physical destruction but the cause is false or illegal, but the will is merely
cancelled or it can still be read as it was not completely destroyed? It seems like the will is still valid as the revocation
is void under Art. 833
RECOGNITION OF PATERNITY IN A WILL
Article 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein
it was made should be revoked. (741)
RECOGNITION OF ILLEGITIMATE FILIATION AS AN IRREVOCABLE ACT

RULE: THAT PART OF A WILL WHICH RECOGNIZES AN ILLEGITIMATE CHILD IS NOT REVOCABLE.
Recognition is an irrevocable act. Therefore, even if the will is revoked, the recognition remains effective
Note that this is one instance where a revoked will may be submitted for probate
What if the will was void?
Under the Family Code, admission of illegitimate filiation in a will would constitute proof of illegitimate filiation. (Art. 175,
FC)
Basically, the principle laid down in Article 834 remains unaltered regarding these admissions contained in wills.
Note that recognition is NOT an act of disposition.

SUBSECTION 7: REPUBLICATION AND REVIVAL OF WILLS
REPUBLISHING OR REVIVING A VOID OR REVOKED WILL
Article 835. The testator cannot republish, without reproducing in a subsequent will, the dispositions
contained in a previous one which is void as to its form. (n)
Article 836. The execution of a codicil referring to a previous will has the effect of republishing the will as
modified by the codicil. (n)
APPLICABILITY OF ART. 835 AND 836

ART. 835 COVERS: VOID WILLS AS TO ITS FORM (DUE TO FORMAL DEFECTS)
A will is void as to form if it fails to comply with the requirements of Articles 804-808; 810-814; 818 and 819.
Formal Formal Requirements of Attested Wills Formal Requirements of

Requirements of Holographic Wills
Wills in General
Art. 804, 818, 819 Art. 805-808 Art. 805-808, 810-814
1. Must be in 1. Subscribed by the testator or his agent in his presence and by his express direction 1. Must be completely
writing at the end thereof, in the presence of the witnesses handwritten by the
2. Must executed 2. Attested and subscribed by at least three credible witnesses in the presence of the testator
in a language or testator and of one another 2. Must be dated by the
dialect known to 3. The testator, or his agent, must sign every page, except the last, on the left margin testator
the testator in the presence of the witnesses 3. Must be signed by the
3. Must not be a 4. The witnesses must sign every page, except the last, on the left margin in the testator
joint will presence of the testator and of one another 4. Necessity of witnesses
5. All pages numbered correlatively in letters on the upper part of each page who knows the
6. Attestation clause, stating handwriting and
a. The number of pages of the will signature of the testator
b. The fact that the testator or his agent under his express direction signed or expert testimony
the will and every page thereof, in the presence of the witnesses 5. Additional dispositions
must each be dated and
c. The fact that the witnesses witnessed and signed the will and every page
signed
thereof in the presence of the testator and one another,
6. If each additional
7. Acknowledgment before a notary public.
disposition is signed but
8. For testator who is a literate deaf-mute, he must read the will personally undated, the last
9. For testator who is an illiterate deaf-mute, he must designate two persons to disposition must be
read the will and communicate to him, in some practicable manner, its contents. signed and dated.
10. For blind testators, will must be read to him twice, once by one of the 7. In case of any insertion,
subscribing witnesses, and another by the notary cancellation, erasure or
11. Witnesses must be competent. They must be: alteration in a
a. Sound mind holographic will, the
testator must
b. Age of eighteen years or more
authenticate the same by
c. Not blind, deaf or dumb, and able to read and write.
his full signature.
d. Domiciled in the Philippines;
e. Have not been convicted of falsification of a document, perjury or false
testimony.
What if the testator has no testamentary capacity is this a formal defect?

BALANE: It is not a formal defect since its not a formal requirement under the Articles 804-808; 810-814; 818
and 819. But under Art. 839 which pertains to grounds for disallowance of wills into probate based on formal
defects, it is a ground for disallowance.
ART. 836 COVERS WILLS WHICH ARE:
a. VOID FOR REASONS OTHER THAN FORMAL DEFECTS, OR
Such as a will that institutes one of the three attesting witnesses
b. REVOKED

RULES AS TO THE REPUBLICATION OR REVIVAL OF VOID OR REVOKED WILLS
1. VOID WILL DUE TO FORMAL DEFECTS
The only way to republish it is to execute a subsequent will and reproduce (copy out) the dispositions of the
original will
Mere reference to the prior will in the subsequent will is NOT enough.
2. VOID WILL FOR REASONS OTHER THAN FORMAL DEFECTS OR REVOKED WILLS
The only thing necessary to republish it is for the testator to execute a subsequent will or codicil referring to the
previous will.
Ex: I hereby republish and revive my will of March 24, 1992
There is no need to reproduce the provisions of the prior will in the subsequent instrument.
BALANE: It seems arbitrary that the rules for republication should be different in cases where the original will is void as
to form and those where it is not. The explanation is found in the fact that Article 835 is derived from Argentine law and
Article 836, from California law. Our Code is a patchwork quilt.
REVOCATION OF A SUBSEQUENT REVOKING WILL DOES NOT REVIVE THE REVOKED PRIOR WILL
Article 837. If after making a will, the testator makes a second will expressly revoking the first, the revocation
of the second will does not revive the first will, which can be revived only by another will or codicil. (739a)

It only applies when a testator makes an original will (first will) and then makes a subsequent instrument
(second will) expressly revoking the first will, and then the testator revokes the second will.
Remember that, in order to effectively revoke the first will, such second will must be valid and admitted into
probated
Note that the manner of revocation of the first will must be EXPRESS (by revocation clause in the second will). But the
revocation of the second will need NOT be express.
Based on the wording of Art. 837
RULES IN ART. 837 IN RELATION TO ART. 830

RULE: A PRIOR WILL IS VALID AND EFFECTIVE IF THE REVOKING WILL (WHETHER EXPRESS OR IMPLIED REVOCATION) IS
REVOKED OR VOID.
This is the rule in Art. 830 in relation to Molo vs Molo
EXCEPTION: IF THE SUBSEQUENT WILL EXPRESSLY REVOKES THE PRIOR WILL, AND THE SUBSEQUENT WILL IS
REVOKED, THE FIRST WILL IS STILL REVOKED (ART. 837)
The revocation of the second will does NOT revive the first will
Thus, the first and second will is revoked, the third will alone (if any) remains effective
Illustration:
In 1985, X executed Will I
In 1987, X executed Will II, expressly revoking Will I.
In 1990, X executed Will III, revoking Will II.
The revocation of Will II by Will III does not revive Will I, unless of course, Will III expressly revives Will I.
What if the revocation of the first will was implied (by incompatibility)?
Remember that the terms of this article apply only where the revocation of the first will by the second will is
EXPRESS.
By contrary sense, if the revocation is implied, the article will NOT apply, therefore, in such a case, the
revocation of the second will by a third will REVIVES the first will, unless the third will is itself inconsistent
with the first.
The first will can be revived only by another will or codicil
Apply then Art. 836 on republication of revoked wills, the testator should execute a subsequent will or codicil
referring to the previous will.
This reviving will may be the third will itself. The third will can both revoke the second will and revive the first
will.
EXCEPTIONS TO EXCEPTION: IN THESE CASES, THE FIRST WILL IS NOT REVOKED, AND IS STILL
EFFECTIVE:

1. Where the second will is holographic and it is revoked by complete physical destruction, because
then, the possibility of its probate is foreclosed (Gan vs. Yap, supra, Article 811), UNLESS a copy
survives (Rodelas vs. Aranza)
The first will REMAINS VALID since the revoking second (holographic) will cannot be admitted into
probate. Meaning, it did not effectively revoke the first will. An exception to the exception, is when there
is a copy of the second will
2. Where the third (or subsequent) will revives the first will
3. If the second will is invalid or cannot be admitted into probate
DEFECTIVE UNDERLYING PRINCIPLE OF ART. 837

BALANE: Art. 837 is absurd. This article is based on the theory of instant revocation (that the revocatory effect of the
second will is immediate). Such a theory is, however, inconsistent with the principle that wills take effect mortis causa.
Furthermore, to be effective (for the purpose of revoking the first will) the second will must be probated. But it has
already been revoked by the third will. A revoked will now has to be submitted to probate?
Remember the general principle in succession is that a will only takes effect upon the testators death, Art. 837 is
based on the principle that the revocatory effect (of the second will) is immediate; this is contrary to succession
principles.
Note that this is another instance that a revoked will (the second will) may be submitted into probate
SUBSECTION 8: ALLOWANCE AND DISALLOWANCE OF WILLS
PROBATE AS A MANDATORY REQUIREMENT TO A WILLS EFFECTIVITY
Article 838. No will shall pass either real or personal property unless it is proved and allowed in accordance
with the Rules of Court.
The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will.
In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's a
death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of
wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his
death, shall be conclusive as to its due execution. (n)
BALANE: The second and third paragraphs have become moot and academic since they are merely transitory provisions
pending the promulgation by the SC of rules, which they have already done. Rules on probateboth post-mortem and
ante- mortem are found in Rule 76 of the Rules of Court.
PROBATE AS A MANDATORY REQUIREMENT

Probate of a will is mandatory. No will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court.
Probate is a judicial proceeding to pass upon the formal validity of a will. It is mandatory, meaning the will will NOT be
effective unless and until it is probated.
It is the first part of the two stages in a settlement proceeding, which are:
1. Probate: for extrinsic validity
2. Settlement proper: for intrinsic validity
BALANE: Probate cannot be foregone, even if the heirs choose to do so. But the heirs can partition the estate after the
will has been probated, even if the partition is against the wishes of the will.
GUEVARA VS. GUEVARA 74 PHIL. 479 (1943):
The proceeding for the probate of a will is one in rem, with notice by publication to the whole world and with
personal notice to each of the known heirs, legatees, and devisees of the testator, the due execution of the will and

the fact that the testator at the time of its execution was of sound and disposing mind and not acting under duress,
menace, and undue influence or fraud, must be proved to the satisfaction of the court, and only then may the will be
legalized and given effect by means of a certificate of its allowance signed by the judge and attested by the seal of
the court; and when the will devises real property, attested copies thereof and of the certificate of allowance must
be recorded in the register of deeds of the province in which the land lies.
The presentation of a will to the court for probate is mandatory and its allowance by the court is essential
and indispensable to its efficacy.
This rule is only for holographic wills, in the case of attested wills, it must be presented also but if it is destroyed,
without authority, it can still be probated by testimony of the attesting witnesses
The law enjoins the probate of the will and public policy requires it, because unless the will is probated and notice
thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory.
Even if the decedent left no debts and nobody raises any question as to the authenticity and due execution of the
will, none of the heirs may sue for the partition of the estate in accordance with that will without first securing its
allowance or probate by the court, first, because the law expressly provides that no will shall pass either real or
personal estate unless it is proved and allowed in the proper court; and, second, because the probate of a will,
which is a proceeding in rem, cannot be dispensed with and substituted by any other proceeding, judicial or
extrajudicial, without offending against public policy designed to effectuate the testators right to dispose of his
property by will in accordance with law and to protect the rights of the heirs and legatees under the will thru the
means provided by law, among which are the publication and the personal notices to each and all of said heirs and
legatees
KINDS OF PROBATE
1. POST-MORTEM PROBATE: PROBATE AFTER THE TESTATORS DEATH
2. ANTE-MORTEM PROBATE: PROBATE DURING THE TESTATORS LIFETIME
Ante-mortem probate is a new feature introduced by the new Civil Code.
The Code Commission explains the reason for the innovation thus: Most of the cases that reach the courts involve
either the testamentary capacity of the testator or the formalities adopted in the execution of wills. There are
relatively few cases concerning the intrinsic validity of testamentary dispositions. It is far easier for the courts to
determine the mental condition of a testator during his lifetime than after his death. Fraud, intimidation and undue
influence are minimized. Furthermore, if a will does not comply with the requirements prescribed by law, the same
may be corrected at once. The probate during the testators life, therefore, will lessen the number of contests upon
wills. Once a will is probated during the lifetime of the testator, the only questions that may remain for the courts to
decide after the testators death will refer to the intrinsic validity of the testamentary dispositions. It is possible, of
course, that even when the testator himself asks for the allowance of the will, he may be acting under duress or
undue influence, but these are rare cases. (The Code Commission Report, p. 53)
Advantages of Ante-Mortem Probate:
Easier for the court to determine the mental capacity of the testator, since he is still alive
Fraud, intimidation and undue influence is minimized
Lessens the number of contests upon wills
Disadvantages of Ante-Mortem Probate
It may be superfluous or futile because the testator can easily make a subsequent will revoking it. So unless the
testator is very sure, it might be useless to have an ante-mortem probate.
FINALITY OF A PROBATE DECREE

RULE: ONCE A DECREE OF PROBATE BECOMES FINAL IN ACCORDANCE WITH THE RULES OF PROCEDURE, IT IS RES
JUDICATA OR CONCLUSIVE AS TO THE WILLS DUE EXECUTION AND FORMAL OR EXTRINSIC VALIDITY, BUT NOT TO ITS
SUBSTANTIVE OR INTRINSIC VALIDITY.
Thus, in this case, a void will (due to formal defects) may be given effect if probated and allowed, because of res
judicator
DE LA CEMA VS. POTOT 12 SCRA 576 (1964):
In this case, husband and wife executed a joint will (which, as we know, it prohibited under Art. 818), however,
when the husband died in 1938, the will was allowed and probated in 1939. This decision became final.
Subsequently, the wife died and the same joint will was sought to be probated, but the trial court disallowed
probate on the ground that joint wills are void. The CA reversed and allowed the probate on the ground that the
1939 decision on the allowance of the will into probate as the husbands was conclusive on the wills due
execution.

The court held that the CA erred and upheld the decision of the trial court. While res judicator operates to
validate the probate of the will of the husband even if it is void as a joint will, it does not include the wifes will.
The Court of Appeals should have taken into account also, to avoid future misunderstanding, that the probate
decree in 1939 could only affect the share of the deceased husband, It could not Include the disposition of the
share of the wife, who was then still alive, and over whose interest in the conjugal properties the probate court
acquired no jurisdiction, precisely because her estate could not then be in issue.
A final judgment rendered on a petition for the probate of a will is binding upon the whole world and
public policy and sound practice demand that at the risk of occasional errors, judgment of courts should
become final at some definite date fixed by law (Interest rei publicae ut Jinis sit litium).
The ultimate decision on whether an act is valid or void rests with the courts, and here they have spoken
with finality when the will was probated in 1939
Thus, the joint will is valid as the husbands will (by reason of res judicata) BUT void as to the wife
SCOPE OF A FINAL DECREE OF PROBATE

RULE: A FINAL DECREE OF PROBATE IS CONCLUSIVE ONLY AS TO THE DUE EXECUTION OF THE WILL, AS IT IS ONLY
CONCERNED ABOUT A WILL'S EXTRINSIC OR FORMAL VALIDITY ONLY, NOT ITS SUBSTANTIVE OR INTRINSIC VALIDITY.
The question is, what comprises the formal validity of wills?
BALANE: You can refer to the Gallanosa and Dorotheo Cases or the grounds in Art. 839, all of which enumerates
what is covered by probate
GALLANOSA VS. ARCANGEL 83 SCRA 676 (1978)
In order that a will may take effect, It has to be probated, legalized or allowed in the proper testamentary
proceeding. The probate of the will Is mandatory.
The testamentary proceeding is a special proceeding for the settlement of the testators estate. A special
proceeding is distinct and different from an ordinary action
The finality of a decision of allowance of a will into probate is conclusive as to the due execution or
formal validity of the will. That means that the testator was of sound and disposing mind at the time
when he executed the will and was not acting under duress, menace, fraud, or undue influence; that the
will was signed by him in the presence of the required number of witnesses, and that the will is genuine
and not a forgery. Accordingly, these facts cannot again be questioned in a subsequent proceeding, not
even in a criminal action for the forgery of the will.
After the finality of the allowance of a will, the issue as to the voluntariness of its execution cannot be
raised anymore
It is a fundamental concept in the organization of every jural system, a principle of public policy, that, at the risk
of occasional errors, judgments of courts should become final at some definite date fixed by law. Interest rei
publicae utfinis sit litum The very object for which the courts were constituted was to put an end to
controversies.
After the period for seeking relief from a final relief or judgment under Rule 38 of the Rules of Court has expired,
a final judgment or order can be set aside only on the grounds of (a) lack of jurisdiction or lack of due process of
law or (b) that the judgment was obtained by means of extrinsic or collateral fraud. In the latter case, the period
for annulling the judgment is four years from the discovery of fraud
Note that Gallanosa enumerates what are covered by or included in the term formal validity and therefore are
conclusively settled by a final decree of probate:
1. That the testator was of sound and disposing mind
2. That his consent was not vitiated
3. That the will was signed by him in the presence of the required number of witnesses, and
4. That the will is genuine
BALANE: As to number 3, it would be better to state it thus: that all the formal requirements of the law have
been complied with. These formal requirements are those laid down in Articles 804-808, and 820-821 (if the will
is an attested one) or those provided in Articles 804 and 810-814 (if the will is holographic), and Articles
818-819.
DOROTHEO VS. CA, 320 SCRA 12 [1999]
This case also enumerates what formal validity encompasses:
1. Whether the will submitted is indeed the decedents last will and testament;
2. Compliance with the prescribed formalities for the execution of wills;
3. Testamentary capacity
4. Due execution of the will
Due execution means:

a. The testators sound and disposing mind;
b. Freedom from vitiating factors (duress, menace, undue influence);
c. Will genuine, not a forgery
d. Proper testamentary age
e. The testator is not expressly prohibited by law from making a will
Another way of defining the scope of a final decree of probate is to refer to Article 839
Objections to a will on any of the grounds enumerated in that article is foreclosed by a final decree of probate.
EXCEPTION TO THE SCOPE OF PROBATE

A PROBATE COURT MAY PASS UPON THE WILLS INTRINSIC VALIDITY IF IT IS INTRINSICALLY VOID ON ITS FACE
While generally, probate only concerns itself with the formal or extrinsic validity of the will, the probate court,
however, may pass upon the intrinsic validity of the will, if on its face, it is intrinsically void
A decree of probate, therefore, does not concern itself with the question of intrinsic validity and the probate court
should not pass upon that issue. This general rule, however, is not inflexible and absolute. The probate of a will
might become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations
demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the
issue. (Nepomuceno vs. CA, 139 SCRA. 206 [1985], citing various cases). Or, as stated in another case, save in
an extreme case where the will on its face is intrinsically void, it is the probate courts duty to pass first upon the
formal validity of the will. (Balanay v. Martinez, 64 SCRA 452 [1975])
NEPOMUCENO VS. COURT OF APPEALS 139 SCRA 206 (1985)
In this case, the dispositions in the will were found to be intrinsically void on its face since the testator himself
admitted that he was co-habiting with his common-law wife while legally married to another. The testator
instituted his common-law wife as an heir (which, of course, is prohibited under Art. 1028 in relation to Art. 729)
The general rule is that in probate proceedings, the courts area of inquiry is limited to an examination and
resolution of the extrinsic validity of the Will. The rule, however, is not inflexible and absolute. Given exceptional
circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon
certain provisions of the Will.
The probate of a will might b come an idle ceremony if on its face it appears to be intrinsically void. Where
practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated,
the court should meet the issue. This is also based on the fact that separate proceedings to determine the
intrinsic validity of the testamentary provisions would be superfluous.
BALANE: It seems, therefore, that, on the authority of Nepomuceno and the cases there cited, a probate court
may pass upon the issue of intrinsic validity if on the face of the will, its intrinsic nullity is patent.
GROUNDS FOR DISALLOWANCE OF WILLS INTO PROBATE
Article 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some
other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the
time of affixing his signature thereto. (n)

Art. 839 is an EXCLUSIVE enumeration of the causes for disallowance of a will.
It covers matters involved in formal validity. In relation to the Gallanosa Case, a probate decree once final, forecloses
any subsequent challenge on any of the matters enumerated in this article
The issue of formal validity or nullity is precisely what the probate proceedings will determine.

RULE IN ART. 839
RULE: IF ANY OF THE GROUNDS FOR DISALLOWANCE PROVIDED FOR UNDERART. 839 IS PROVED, THE WILL SHALL
BE SET ASIDE AS VOID.
A will is either valid or void, there is no such thing as a voidable will. If none of the defects enumerated in this article
is present, the will is valid; if any one of these defects is present, the will is void.
GROUNDS FOR DISALLOWANCE OF WILLS

1. THE FORMALITIES REQUIRED BY LAW HAVE NOT BEEN COMPLIED WITH
The formalities referred to are those laid down in articles 804-814, 818-819 and 820-821
2. THE TESTATOR WAS INSANE, OR OTHERWISE MENTALLY INCAPABLE OF MAKING A WILL, AT THE TIME OF ITS
EXECUTION
This pertains to the testamentary incapacity of the testator.
The will will be disallowed if:
a. The testator is under eighteen years of age or is a minor (Art. 797)
b. The testator is NOT of sound mind or is mentally incapacitated (Art. 798-801)
3. THE WILL WAS EXECUTED THROUGH FORCE OR UNDER DURESS, OR THE INFLUENCE OF FEAR, OR THREATS
Force or violence in contract law
Article 1335. There is violence when in order to wrest consent, serious or irresistible force is employed
Duress, intimidation, influence of fear, or threats in contract law
Art. 1335: There is intimidation when one of the contracting parties is compelled by a reasonable and well-
grounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his
spouse, descendants or ascendants, to give his consent. To determine the degree of intimidation, the age, sex
and condition of the person shall be borne in mind. A threat to enforce one's claim through competent authority,
if the claim is just or legal, does not vitiate consent.
4. THE WILL WAS PROCURED BY UNDUE AND IMPROPER PRESSURE AND INFLUENCE, ON THE PART OF THE BENEFICIARY
OR OF SOME OTHER PERSON
Undue influence in contract law
Article 1337: There is undue influence when a person takes improper advantage of his power over the will of
another, depriving the latter of a reasonable freedom of choice. The following circumstances shall be
considered: the confidential, family, spiritual and other relations between the parties, or the fact that the person
alleged to have been unduly influenced was suffering from mental weakness, or was ignorant or in financial
distress.
5. THE SIGNATURE OF THE TESTATOR WAS PROCURED BY FRAUD
Fraud in contract law
Article 1338: There is fraud when, through insidious words or machinations of one of the contracting parties, the
other is induced to enter into a contract which, without them, he would not have agreed to.
6. 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
Mistake in contract law
Article 1331: In order that mistake may invalidate consent, it should refer to the substance of the thing which is
the object of the contract, or to those conditions which have principally moved one or both parties to enter into
the contract. Mistake as to the identity or qualifications of one of the parties will vitiate consent only when such
identity or qualifications have been the principal cause of the contract. A simple mistake of account shall give
rise to its correction.
SECTION 2: INSTITUTION OF HEIR
The rules on institution of heir set forth in the provisions of this Section, apply as well to institution of devisees and
legatees. Thus, when the provisions in this section refers to heirs, it is taken to mean that it includes the devisees and
legatees as well.
DEFINITION OF INSTITUTION OF HEIRS

Article 840. Institution of heir is an act by virtue of which a testator designates in his will the person or
persons who are to succeed him in his property and transmissible rights and obligations. (n)
BALANE: The only way to institute an heir is by making a will. Note that the right of the testator to institute persons to
succeed only covers the free portion of his estate. The legitime is NOT subject to institution because it is reserved for
the compulsory heirs. He can, of course, dispose of the entire estate if he has no compulsory heirs
VALIDITY OF THE WILL DESPITE ABSENCE OR LACK OF INSTITUTION OR UNWILLING OR UNWORTHY

HEIRS
Article 841. A will shall be valid even though it should not contain an institution of an heir, or such institution
should not comprise the entire estate, and even though the person so instituted should not accept the
inheritance or should be incapacitated to succeed.
In such cases the testamentary dispositions made in accordance with law shall be complied with and the
remainder of the estate shall pass to the legal heirs. (764)
Article 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the
inheritance, legal succession takes place with respect to the remainder of the estate. The same rule applies if
the testator has instituted several heirs, each being limited to an aliquot part, and all the parts do not cover
the whole inheritance. (n)
APPLICABILITY OF ART. 841; WHEN THE ENTIRE ESTATE OF FREE PORTION IS NOT DISPOSED OF
Art. 841 contemplates a situation where the entire estate or free portion is NOT disposed of, either because the testator
failed to dispose of it completely or partially, or the heirs (or devisees, or legatees) were unwilling or unworthy to inherit)
1. The will does not contain an institution of an heir (does not contain any testamentary disposition)
2. The institution does not cover the entire estate, and
3. The person instituted should not accept the inheritance (heir is unwilling)
4. The person instituted is incapacitated to succeed (heir is unworthy)
RULES IN ART. 841 (AS SUPPLEMENTED BY ART. 851)

In the cases in Art. 841, the will is nonetheless VALID. BUT, the following would be the consequence:
1. INTESTATE SUCCESSION, IF NOTHING IS DISPOSED OF
Nothing will be disposed of if the will does not contain any testamentary disposition or all the heirs, devisees, or
legatees are unwilling or unworthy to inherit
Even if the will does not contain any testamentary disposition, it will be formally valid provided it complies with
all the formal requisites. The will is valid to form but has no substance; but note that it has the same effect as
though the will is void as to form, both will result in intestacy
BALANE: Thus, even if there is no institution of an heir, the will is valid, but it is useless unless it acknowledges
an illegitimate child or disinherits a compulsory heir.
2. MIXED SUCCESSION (TESTATE AND INTESTATE), IF ONLY A PART OF THE ESTATE OR FREE PORTION IS DISPOSED
OF
Testamentary succession as to the part disposed of by the will, and intestate succession as to the part not
disposed of by the will.
The legitimes, of course, if there are any, pass by strict operation of law.
IS PROBATE NECESSARY IF THE WILL DOES NOT DISPOSE OF ANYTHING?

RULE: IF THE WILL DOES NOT INSTITUTE AN HEIR, IT NEED NOT BE PROBATED
EXCEPTION: A will needs to be probated, even if it does not institute an heir, if any of the following are present:
1. When the will recognizes an illegitimate child
2. When it disinherits a compulsory heir
As seen in the case of Seangio vs Reyes, this was considered an act of disposition

3. When it instituted an executor
HOW MUCH MAY BE DISPOSED OF BY WILL
Article 842. One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of
any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of
this Code with regard to the legitime of said heirs. (763a)
HOW MUCH MAY THE TESTATOR DISPOSE IN HIS WILL?

It depends on whether the testator has compulsory heirs
1. If the testator leaves NO compulsory heirs: The entire hereditary estate
Also, the testator can disinherit his compulsory heirs but the only way to do this is to make a will
2. If the testator leaves compulsory heirs: The disposable or free portion only (the net hereditary estate minus the
legitimes)
The amount of the legitimes depends on the kinds and number of compulsory heirs. Various combinations are
possible. Thus, the amount of the disposable portion is also variable.
MANNER OF INSTITUTION OR DESIGNATION OF THE HEIRS, DEVISEES OR LEGATEES
Article 843. The testator shall designate the heir by his name and surname, and when there are two persons
having the same names, he shall indicate some circumstance by which the instituted heir may be known.
Even though the testator may have omitted the name of the heir, should he designate him in such manner that
there can be no doubt as to who has been instituted, the institution shall be valid. (772)
Article 844. An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it
is possible, in any other manner, to know with certainty the person instituted.
If among persons having the same names and surnames, there is a similarity of circumstances in such a way
that, even with the use of other proof, the person instituted cannot be identified, none of them shall be an heir.
(773a)
Article 845. Every disposition in favor of an unknown person shall be void, unless by some event or
circumstance his identity becomes certain. However, a disposition in favor of a definite class or group of
persons shall be valid. (750a)
RULES IN THE DESIGNATION OF HEIRS IN THE WILL

1. IN THE INSTITUTION OF HEIRS, THE DESIGNATION OF THE HEIRS NAME IS NOT NECESSARY, AS LONG AS HIS
IDENTITY CAN BE ASCERTAINED AND MADE KNOWN.
Generally, the testator should designate the heir by his name and surname, and when there are two persons having
the same names, he shall indicate some circumstance by which the instituted heir may be known.
Example: I institute Father Bernas, to my beloved girlfriends, Anne Sy of Rizal and Anne Sy of Makati
But, even though the testator may have omitted the name of the heir, should he designate him in such manner that
there can be no doubt as to who has been instituted, the institution is still valid
Examples: I institute my eldest brother, I institute the dean of the Ateneo Law School when this will was made
Also, designation is valid if the identity is not known at the time of making the will but can be known in the future by
circumstances .This is by establishing certain criteria at the proper time
Example: To whoever becomes the next President of the Philippines after my death, to the bar topnotcher of
the 2040 bar exams

The designation of name and surname is directory. What is required is that the identity of the designated successor
be sufficiently established. This is most usually done by giving the name and surname, but there are other ways, as
can be gleaned from Article 843, par. 2.
2. AN ERROR IN THE NAME, SURNAME, OR CIRCUMSTANCES OF THE HEIR SHALL NOT INVALIDATE THE INSTITUTION
WHEN IT IS POSSIBLE, IN ANY OTHER MANNER, TO KNOW WITH CERTAINTY THE PERSON INSTITUTED
If there is any ambiguity in the designation the ambiguity should be resolved in accordance with Article 789.
Remember that rules on interpretation and construction of wills if there are patent or latent doubts or ambiguities
such as an imperfect description of heirs (Art. 789)
Imperfect descriptions be cleared up as much as possible, as long as the testators intent as to who he is
instituting can be reasonably ascertained, the institution is not invalidated.
Doubt is resolved in favour of testacy.
The heir, legatee, or devisee must be identified in the will with sufficient clarity to leave no doubt as to the testators
intention. The basic rule in testamentary succession always is respect for and compliance with the testators wishes
3. IF IT IS NOT POSSIBLE TO RESOLVE THE AMBIGUITY, THE TESTATORS INTENT BECOMES INDETERMINABLE AND,
THEREFORE, INTESTACY AS TO THAT PORTION WILL RESULT. THE RESULT IS, THAT THE INSTITUTION IS VOID.
This pertains to:
1. Persons having the same names and surnames, and there is a similarity of circumstances in such a way that,
even with the use of other proof, the person instituted cannot be identified (Art. 844, 2nd paragraph)
In this case, none of them shall be considered heirs
2. Unknown persons (Art. 845)
This refers to a successor whose identity cannot be determined because the designation in the will is so
unclear or so ambiguous as to be incapable of resolution
These are heirs whose identity is unknowable or cannot be ascertained
Example: To someone who cares
This does not refer to a mere stranger, or someone whom the testator is not personally acquainted. The
testator may institute somebody who is a perfect stranger to him, provided the identity is clear.
Example: To the current President of the Philippines
4. THE TESTATOR MAY INSTITUTION A DEFINITE CLASS OR GROUP OF PERSONS (CLASS DESIGNATION)
A disposition in favor of a definite class or group of persons shall be valid.
Example: To my students in Succession of the Ateneo Law School Block B of the school year starting 2015
INSTITUTION OF HEIRS COLLECTIVELY WITHOUT DESIGNATION OF SHARES
Article 846. Heirs instituted without designation of shares shall inherit in equal parts.
RULE OF EQUALITY UNLESS OTHERWISE STATED

RULE: HEIRS INSTITUTED WITHOUT DESIGNATION OF SHARES SHALL INHERIT IN EQUAL PARTS.
The general presumption in cases of collective designation is equality.
If the testator intends an unequal apportionment, he should so specify.

This article will apply only in testamentary succession, that is to say, only among testamentary heirs as such
(or devisees or legatees).
It will not apply to an heir who is both a compulsory and a testamentary heir, for in that case the heir will get
his legitime and his testamentary portion (Art. 1062)
Example: X, the testator, in his will institutes to one-fourth of his estate the following: A (his son), B (his cousin), and
C (his friend). A, being Xs compulsory heir, will get his legitime plus one-third of the one-fourth given by will. As
testamentary heir, A gets a share equal to those of B and C, but since A is also a compulsory heir, and is entitled to
his legitime over and above his testamentary share, he will end up getting a larger slice of Xs estate than B or C.
Not explicitly covered by this article is an instance where the shares of some of the heirs are designated and
those of others are not.
Example: I institute to one-fourth of my estate A, B, C, and D, of which portion A is to get one-third, and B is to get
one-fourth. The shares of C and D are unspecified. How much are they to get? Are they to divide equally the

remaining portion of the one-fourth of the estate, after deducting As and Bs portions (The remainder is 5/12 of
1/4)?
INSTITUTION OF HEIRS INDIVIDUALLY AND COLLECTIVELY WITHOUT DESIGNATION OF SHARES
Article 847. When the testator institutes some heirs individually and others collectively as when he says, "I
designate as my heirs A and B, and the children of C," those collectively designated shall be considered as
individually instituted, unless it clearly appears that the intention of the testator was otherwise. (769a)
Article 849. When the testator calls to the succession a person and his children they are all deemed to have
been instituted simultaneously and not successively. (771)
BALANE: It may be noted, amusingly, that, to the authors knowledge, Art. 847 is the only article in the Code which contains
an example. This article is hardly a model for codification

Applies when the testator institutes some heirs individually and others collectively
Ex: I designate as my heirs A and B, and the children of C" or when the testator calls to the succession a person
and his children
RULES OF INDIVIDUAL AND SIMULATENEOUS INSTITUTION AND EQUALITY UNLESS OTHERWISE STATED
RULE: THOSE COLLECTIVELY DESIGNATED SHALL BE CONSIDERED AS INDIVIDUALLY INSTITUTED, UNLESS IT CLEARLY
APPEARS THAT THE INTENTION OF THE TESTATOR WAS OTHERWISE.
Meaning, those who have been individually and collectively designated are deemed to have been instituted
simultaneously and not successively
This follows the basic rule of equality in the previous article. In addition, this article establishes the presumption that the
heirs collectively referred to are designated per capita along with those separately designated.
If the testator intends a block designation, he should so specify.
Examples:
1. To my friend Dean Sedfrey Candelaria, my friend Atty. Giovanni Vallente, and to my students of Succession in the
Ateneo Law School Block B of the school year starting 2015
This is not to be interpreted as 1/3 to the Dean, 1/3 to the Atty. and 1/3 to the class. Rather, the entire of the
estate should be divided equally among the dean, the Atty. and to each member of the class C. Because the
presumption is that the members of the class were individually designated.
2. To A, B and the children of C
This is not to be interpreted to mean that A and B would get 1/3 each and the children of C would all share in 1/3
portion. But rather, assuming C has 4 children, A would get 1/6, B would get 1/6 and each of the children of C
would get 1/6.
INSTITUTION OF BROTHERS OR SISTERS
Article 848. If the testator should institute his brothers and sisters, and he has some of full blood and others
of half blood, the inheritance shall be distributed equally unless a different intention appears. (770a)

This article covers a case where the testator institutes his/her brothers and sisters, without indicating whether they are
full-or half blood, and it is later found out that the testator has full and half-blood siblings.
Full blood means same parents; half blood means only one parent is the same
BALANE: Does Article 848 apply even to illegitimate brothers and sisters, in cases where the testator is of
legitimate status and vice-versa? It seems so, because Article 848 makes no distinction. Ubi lex non disttnguit, nec
nos distinguere debemus.
Also, this article refers only to testamentary succession, in intestacy, the rule is different

RULE OF EQUALITY UNLESS OTHERWISE STATED
RULE: THE INHERITANCE SHALL BE DISTRIBUTED EQUALLY TO ALL HIS/HER SIBLINGS (REGARDLESS OF WHETHER FULL
OR HALF-BLOOD) UNLESS A DIFFERENT INTENTION APPEARS
This article follows the general rule of equality laid down in Article 846. If the testator intends an unequal
apportionment, he should so specify.
RULE IS DIFFERENT IN INTESTACY

The applicable provision in intestacy is Article 1006, which establishes a proportion of 2:1 between full- and half-blood
brothers and sisters (without prejudice to the rule prohibiting succession ab intestato (succession bar) between
legitimate and illegitimate siblings in Article 992)
Thus, the rule on full and half-siblings depends on the kind of succession:
1. IN TESTAMENTARY SUCCESSION
Equality of shares of full- and half-blood brothers and sisters, unless the testator provides otherwise (Article
848)
2. IN INTESTATE SUCCESSION
Proportion of 2:1 between full- and half-blood brothers and sisters (Article 1006), and only if the disqualification
in Article 992 does not apply
INSTITUTION BASED ON FALSE CAUSES
Article 850. The statement of a false cause for the institution of an heir shall be considered as not written,
unless it appears from the will that the testator would not have made such institution if he had known the
falsity of such cause. (767a)

Art. 850 pertains to institution of heirs based on a false cause, which is generally valid, but void in exceptional cases,
depending on certain factors. Distinguish this from revocations based on false cause which is void under Art. 833
Note that the testator has the absolute freedom to revoke and absolute freedom to institute, regardless of any reason,
these are components of testamentary freedom
But Art. 833 and 850 limits this freedom, really, to respect the testators intent.
Also, this article does NOT restrict the operation of Article 1028 in relation to Article 739 (on prohibited donations)
declaring void certain testamentary dispositions, by reason of public policy. The annulling factor in those two articles is
not falsity but illegality.
RULE WHEN THE INSTITUTION IS BASED ON A FALSE CAUSE

Generally, the falsity of the stated cause for the testamentary institution does NOT affect the validity or efficacy
of the institution.
This is because testamentary dispositions are ultimately based on liberality.
Example: I institute A as my heir because he is kind Even though it is later proven that A is not kind, the institution
is nonetheless valid. This is because the true cause of the institution is not really the fact of kindness of the heir,
but rather the testators liberality.
Thus, the mere fact that the testator gives a reason for an institution, and it is later proved that such reason is false,
does not invalidate the institution. Institutions based on false causes are generally valid, because they are deemed
based on the testators liberality.
EXCEPTION: The falsity of the stated cause for institution will set aside the institution (will make it VOID), if
certain factors are present.
What factors are these? Those factors the SC provides for us in the case of Austria
AUSTRIA VS. REYES 31 SCRA 754 (1970)
Before the institution of heirs may be annulled under article 850 of the Civil Code, the following
requisites must concur:
1. The cause for the institution of heirs must be stated in the will
2. The cause must be shown to be false and,
3. It must appear from the face of the will that the testator would not have made such institution if he
had known the falsity of the cause.

Note that this last requisite is a both a requirement in institution and revocation based on false cause
Article 850 is a positive injunction to ignore whatever false cause the testator may have written in his will for the
institution of heirs. Such institution may be annulled only when one is satisfied, after an examination of the will,
that the testator clearly would not have made the institution if he had known the cause for it to be false. The will
alone should provide the answer
Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in the Civil Code:
The words of a will are to receive an interpretation which will give to every expression some effect, rather than
one which will render any of the expressions inoperative: and of two modes of interpreting a will, that is to be
preferred which will prevent intestacy.
Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention on the part
of the testator to dispose of practically his whole estate, as was done in this case. Moreover, so compelling is
the principle that intestacy should be avoided and the wishes of the testator allowed to prevail: that we could
even vary the language of the will for the purpose of giving it effect.
BALANE: Exceptionally, therefore, the falsity of the cause will annul the institution if the three requisites
enumerated in Austria concur.
WHEN THE WHOLE ESTATE IS NOT COVERED BY THE INSTITUTIONS
Article 841. In such cases the testamentary dispositions made in accordance with law shall be complied with
and the remainder of the estate shall pass to the legal heirs. (764)
Article 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the
inheritance, legal succession takes place with respect to the remainder of the estate.The same rule applies if
the testator has instituted several heirs, each being limited to an aliquot part, and all the parts do not cover
the whole inheritance. (n)
BALANE: Art. 851 has already been covered by Art. 841, it is redundant. But note that the wording of Art. 851 is erroneous.
Legal succession does not take place with respect to the remainder of the estate, but rather to the remainder of the
disposable (free) portion. There may, after all, be compulsory heirs whose legitimes will therefore cover part of the estate;
the legitimes do not pass by legal or intestate succession.
WHEN THE WHOLE ESTATE IS INTENDED TO BE DISPOSED OF BUT THE INSTITUTIONS DO NOT COVER THE
ENTIRE PORTION
Article 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the
whole estate, or the whole free portion, as the case may be, and each of them has been instituted to an aliquot
part of the inheritance and their aliquot parts together do not cover the whole inheritance, or the whole free
portion, each part shall be increased proportionally. (n)
Article 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts
together exceed the whole inheritance, or the whole free portion, as the case may be, each part shall be
reduced proportionally. (n)

Both articles will apply if the following elements are present:
1. There are several heirs
2. The testator intended them to get the whole estate or the whole disposable portion, as the case may be
Note that this intent must be manifested in the will, if it was not, then Art. 841 and 851 applies
If no compulsory heirs basis is the whole estate; if there are compulsory heirs, basis is the disposable free
portion
3. The testator has designated a definite portion for each heir, but the total of such portions do NOT
correspond to the entire or disposable portion of the estate

It does not correspond to the entire or disposable estate either because the total of the designated portions is
less than it or it exceeds it
Note that this is different from Art. 841 in 851.
Under Art. 852 and 853, the intent of the testator is to institute the heirs to the entire estate or disposable portion,
as manifested in the will. He simply made a mistake in the addition of the different portions each heir is to receive.
Under Art. 841 and 851, no such intent to institute the heirs to the entire estate or disposable portion is manifest;
and the testator failed to dispose of his entire estate or the disposable portion, as the case may be.
RULES IN ART. 852 AND 853; PROPORTION INCREASES OR REDUCTIONS TO BE MADE

1. IF THE TOTAL OF ALL THE PORTIONS IS LESS THAN THE WHOLE ESTATE OR THE WHOLE DISPOSABLE PORTION (ART.
852)
A proportionate increase will be made
See examples in pages 259- 262 of the book
2. IF THE TOTAL OF ALL THE PORTIONS EXCEEDS THAN THE WHOLE ESTATE OR THE WHOLE DISPOSABLE PORTION
(ART. 853)
A proportionate reduction will be made
See examples in pages 262- 264 of the book
Such respective increases or reductions will respect the intent of the testator to institute the heirs to his entire or
disposable estate
PRETERITION; OMISSION OF THE COMPULSORY HEIRS, IN THE DIRECT LINE, FROM THE INHERITANCE
Article 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born after the death of the testator, shall annul the institution
of heir; but the devises and legacies shall be valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without
prejudice to the right of representation. (814a)
Under Art. 854, you need to know the following:

1. What is the meaning of Preterition?
2. Who can be Preterited?
3. What is the effect of Preterition?
BALANE: Preterition means to go beyond or to bypass; it means omission. but omission from what? The answer to that
question is the basic problem in preterition.
APPLICABILITY OF ART. 854; RULES ON THE APPLICABILITY OF PRETERITION

1. WHAT CONSTITUTES PRETERITION IS NOT THE OMISSION FROM THE WILL, BUT THE TOTAL OMISSION FROM THE
INHERITANCE.
Preterition is NOT the total omission from the will, but rather, the total omission from the inheritance. For there to be
preterition, therefore, the heir in question must have received NOTHING from the testator by way of:
a. Testamentary succession
b. Legacy or devise
c. Intestacy, or
d. Donation inter vivos
BALANE: The mention or non-mention in the will is NOT constitutive of preterition. Preterition must be total
omission from the inheritance
An heir can be omitted in the will and not be preterited. This is seen in the case of Seangio vs Reyes.
An heir can also be mentioned or included in the will but be preterited
Thus, the definition of preterition by both Manresa and Castan is WRONG
MANRESA: Preterition consists in the omission of an heir in the will, either because he is not named, or,
although he is named as a father, son, etc., he is neither instituted as an heir nor expressly disinherited, nor
assigned any part of the estate, thus being tacitly deprived of his right to the legitime.

CASTAN: By preterition is meant the omission in the will of any of the compulsory heirs, without being
expressly disinherited. It is thus a tacit deprivation of the legitime, as distinguished from disinheritance, which is
an express deprivation
Examples:
1. The testator has a son, A. The will states "I give 1/2 to B."
A is not preterited because he gets the other half by intestacy as a compulsory heir
2. The testator has a son, A. The will statesI give 1/3 to B and 1/3 to C."
A is not preterited because he gets the other 1/3, although his legitime is impaired
3. The testator has a son, A. The will states I give 1/2 to B and 1/2 to C, to my son A, whom I dearly love, I give
all my love
A has been preterited even though he is mentioned in the will.
2. PRETERITION ONLY APPLIES IN TESTAMENTARY SUCCESSION, IT CANNOT APPLY IN TOTAL INTESTACY
Because if total intestacy applies, then obviously no compulsory heirs will be prejudiced
Preterition cannot apply if there is no will, or if the will is void.
BALANE: No preterition if there is no will, compulsory heirs cannot be preterited if intestacy results because then,
they will not be totally omitted from the inheritance
3. PRETERITION IS DIFFERENT FROM DISINHERITANCE OR INEFFECTIVE DISINHERITANCE
Preterition vs Disinheritance
Preterition is total omission from the inheritance, without the heir being expressly disinherited. The implied basis
of the rule on preterition is inadvertent omission by the testator. Thus, if the testator explicitly disinherits the
heir, this article will NOT apply.
Should the disinheritance be ineffective, for absence of one or other of the requisites for a valid
disinheritance, the heir is simply entitled to demand his rightful share.
With respect to the compulsory heir, Preterition is a tacit deprivation; while Disinheritance is an express
deprivation by the Testator
Preterition vs Ineffective Disinheritance
Preterition is (total) omission from the inheritance, without the heir being expressly disinherited. The implied
basis of the rule on preterition is inadvertent omission by the testator. Thus, if the testator explicitly disinherits
the heir, this article will not apply.
Should the disinheritance be ineffective, for absence of one or other of the requisites for a valid disinheritance,
the heir is simply entitled to demand his rightful share.
4. PRETERITION ONLY COVERS COMPULSORY HEIRS IN THE DIRECT LINE. THUS, A SPOUSE, AS A COMPULSORY HEIR, IS
NOT COVERED
Art. 854 covers compulsory heirs in the direct line, whether living at the time of the execution of the will or born after
the death of the testator. It does NOT cover the surviving spouse, who is a compulsory heir, though NOT in the
direct line.
Thus, a spouse cannot be preterited. Only compulsory heirs in the direct line may preterited
Art. 964 defines what a direct line is. A direct line is that constituted by the series of degrees among ascendants
and descendants.
Compulsory heirs in the direct line covers children or descendants, and in proper cases, (in default of children or
descendants) parents or ascendants.
BALANE: This is a bad provision, it omits the spouse from its protection and remedies. All compulsory heirs should
be covered. BUT the spouse is not unprotected, his or her remedy is to file an action for the completion of his or her
legitime. Though the protection given by Art. 854 is much better.
Remedy of the Spouse who was omitted from the inheritance? Completion of Legitime under Art. 906 and
907
Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him
may demand that the same may be fully satisfied.
Art. 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced
on petition of the same, insofar as they may be inofficious or excessive.
Are illegitimate descendants or ascendants within the coverage of compulsory heirs in the direct line?
BALANE: Yes, since the law does not distinguish
5. ART. 854 COVERS ADOPTED CHILDREN OF THE TESTATOR. THEY ARE DEEMED DESCENDANTS IN THE DIRECT LINE BY
FICTION OF LAW
ACAIN VS IAC 155 SCRA 100 (1987)

Preterition consists in the omission in the testators will of the forced heirs or anyone of them either because
they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly
disinherited.
Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not ascend or
descend from the testator, although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a
compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not in the direct
line. (Art. 854, Civil Code) However, the same thing cannot be said of adopted children
Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the
adopted person the same rights and duties as if he were legitimate child of the adopter and makes the
adopted person a legal heir of the adopter.
BALANE: An adopted child, therefore, if totally omitted in the inheritance, is preterited within the contemplation of
Article 854 and can invoke its protection and consequences. Acains logic is the soul of simplicity: since an adopted
child is given by law the same rights as a legitimate child, vis-a-vis the adopter, then the adopted child can, in
proper cases, invoke Article 854 in the same manner that a legitimate child can. The law cited by AcainArticle 39
of PD 603 (the Child and Youth Welfare Code) was supplanted by Article 189(1) of the Family Code, which,
however, has in turn been supplanted by Secs. 17 and 18 of RA 8552 (the Domestic Adoption Act of 1998)
6. PRETERITION CAN ONLY BE KNOWN AT THE TIME OF THE TESTATOR'S DEATH, NOT DURING THE EXECUTION OF THE
WILL
This is because the compulsory heirs can only be determined at the time of the testators death
Example: X has two sons, A and B. In 2005, X makes a will. He gives 1/2 to his son B and 1/2 to a third person C.
Note that A has no share in the will when it was made. In 2012, A dies. X dies only in 2013. In other words, A pre-
deceases his father, X. Even if there was a potential preterition of A when the will was made in 2005, he was not
preterited because when X died, A was already dead, thus he could no longer be a compulsory heir as this is
determined only at the time of the testators death, not when the will was made. Remember the principle that wills
only take effect at the testators death.
7. ART. 854 COVERS COMPULSORY HEIRS IN THE DIRECT LINE BORN AFTER THE EXECUTION OF THE WILL, WHETHER
BORN BEFORE OR AFTER THE TESTATOR'S DEATH
Quasi-posthumous children
One who, born during the life of his grand father, or other male ascendant, was not his heir at the time he made
his testament, but who by the death of his father became his heir in his lifetime (law.com)
BALANE: There is a flaw in the wording of the Article. The phrase whether living at the time of the execution of
the will or born after the death of the testator does not, by its terms, include those compulsory heirs in the direct
line born after the execution of the will but before the testators death. Such children are, without doubt, to be
included within the purview of the protection of this Article. This gap is merely the result of careless
drafting. The proposed Spanish Code of 1851 expresses the legislative intent correctly: whether living at the
time of the execution of the will or born subsequently, even after the testators death.
Also, remember that while you determine who the compulsory heirs are only at the time of the testators
death, he might have children conceived in his lifetime but unborn during his death. They are also deemed
compulsory heirs
Art. 40 and 41, an unborn child is considered born for all purposes favourable to it provided they are born later.
8. IF THE OMITTED COMPULSORY HEIRS IN THE DIRECT LINE SHOULD DIE BEFORE THE TESTATOR, THE INSTITUTION
SHALL BE EFFECTUAL, WITHOUT PREJUDICE TO THE RIGHT OF REPRESENTATION.
If the omitted compulsory heirs should die before the testator, the institution shall be effectual
This pertains to cases of Predecease of Preterited Compulsory Heir
This means that when a compulsory heir was omitted at the time of the execution of the will, but such heir pre-
deceases the testator, then the institution are effectual, meaning the omission of the compulsory heir is of NO
CONSEQUENCE, it does not make the institutions invalid, meaning there is NO preterition
See comments in number 5 above. The determination of whether or not there are preterited heirs can be made
only upon the testators death. Should the preterited heir predecease (or be unworthy to succeed) the testator,
obviously the question of preterition of that heir becomes moot.
Without prejudice to the right of representation
However, should there be a descendant of that heir who is himself preterited, then the effects of
preterition will arise.
Example: X has two legitimate children: A and B. X makes a will which results in the potential preterition of A
because he was omitted from the inheritance. A predeceases X but leaves a legitimate child A-1, who is himself
completely omitted from the inheritance (A-1 being entitled to succeed X by representation). Art. 854 will apply,
not because A was preterited but because A-1 was preterited.

Another example would be: if the preterited heir who pre-deceases is a child but the testator is survived solely
by ascendants, who are entitled to a legitime in default of descendants.
OMISSION WHICH DOES NOT CONSTITUTE PRETERITION

The following cases, although the compulsory heir were prejudiced in their successional rights, there is NO preterition:
1. IF THE HEIR IN QUESTION IS INSTITUTED IN THE WILL BUT THE PORTION GIVEN TO HIM BY THE WILL IS LESS THAN
HIS LEGITIME
REYES VS. BARRETTO-DATU 19 SCRA 85 (1967)
In this case:
a. There was a compulsory heir in the direct line
b. Such heir was instituted in the will
c. The testamentary disposition given to such heir was LESS than her legitime
Court held that there was no preterition because there was no total omission, inasmuch as the heir received
something from the inheritance.
The heir who received something in the will but which is less than his entitled legitime, the remedy is
not found in Article 854 but in Articles 906 and 907, for completion of legitime
Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to
him may demand that the same may be fully satisfied.
Art. 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be
reduced on petition of the same, insofar as they may be inofficious or excessive.
2. IF THE HEIR IS GIVEN A LEGACY OR DEVISE
AZNAR VS. DUNCAN 17 SCRA 590 (1966)
In this case, a one of the daughter of the testator (Helen) was merely left a legacy of P3,600. The rest of the
estate was given to another daughter (Lucy).
The court said there was not preterition since the testator did not entirely omit Helen, but left her a legacy of
P3.600.00.
Should the value of the legacy or devise be less than the recipients legitime, his remedy, as in number 1, is only
for completion of his legitime under Articles 906 and 907.
BALANE: When a compulsory heir, in the direct line, receives something (such as a devise or legacy) from the
inheritance, no matter how small, there is NO preterition. Remedy is merely for completion of his legitime.
3. IF THE HEIR HAD RECEIVED A DONATION INTER VIVOS FROM THE TESTATOR
The donation inter vivos is treated as an advance on the legitime under Articles 906, 909, 910 and 1062.
Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to
him may demand that the same may be fully satisfied.
Art. 909. Donations given to children shall be charged to their legitime. Donations made to strangers shall be
charged to that part of the estate of which the testator could have disposed by his last will.Insofar as they
may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules
established by this Code.
Art. 910. Donations which an illegitimate child may have received during the lifetime of his father or mother,
shall be charged to his legitime. Should they exceed the portion that can be freely disposed of, they shall be
reduced in the manner prescribed by this Code.
Art. 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly
provided, or if the donee should repudiate the inheritance, unless the donation should be reduced as
inofficious.
4. IF THE HEIR IS NOT MENTIONED IN THE WILL NOR WAS A RECIPIENT OF A DONATION INTER VIVOS FROM THE
TESTATOR, BUT NOT ALL OF THE ESTATE IS DISPOSED OF BY THE WILL THERE IS NO PRETERITION.
The omitted heir in this instance would receive something by intestacy, from the portion not disposed of by the
will (the vacant portion).
The right of the heir, should the vacant portion be less than his legitime, will simply be to demand completion of
his legitime, under Articles 906 and 907.
RULE IN ART. 854; EFFECT OF PRETERITION

RULE: THE INSTITUTION OF HEIRS IS ANNULLED, BUT THE LEGACIES AND DEVISES ARE VALID TO THE EXTENT
THAT THESE LATTER DO NOT IMPAIR LEGITIMES.
Note that this is about the only instance in the Philippine law on succession where there is still a practical effect in
the distinction between an heir and a legatee/devisee.

Practically, a compulsory heir who was preterited can get more than his legitimate because all institutions of heirs
are annulled
BALANE:
The institution is not merely reduced, but is annulled or set aside. The heirs do not get anything by testamentary
succession. However, the result is NOT always total intestacy because the devices or legacies are valid as long
as they do not impair the legitimes.
NUGUID VS. NUGUID 17 SCRA 449 (1966)
To annul means to abrogate, to make void. The word annul as used in statute requiring court to annul alimony
provisions of divorce decree upon wifes remarriage means to reduce nothing; to annihilate; obliterate: blot out; to
make void or of no effect; to nullify; to abolish
In this case, there was no specific legacies or bequests provided for. Thus the court said that the nullity is complete
and the testator died completely intestate.
As of consequence of annulment, the universal institution to the entire inheritance results in totally abrogating the
will. Because, the nullification of such institution of universal heirwithout any other testamentary disposition in the
willamounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 offers
no leeway for inferential interpretation. Giving it an expansive meaning will tear up by the roots the fabric of the
statute.
Legacies and devises merit consideration only when they are so expressly given as such in a will. Nothing in Article
854 suggests that the mere institution of a universal heir in a willvoid because of preteritionwould give the heir
so instituted a share in the inheritance. As to him, the will is inexistent. There must be, in addition to such
institution, a testamentary disposition granting him bequests or legacies apart and separate from the nullified
institution of heir.
As Manresa puts it, annulment throws open to intestate succession the entire inheritance
Different Effects of Preterition and Disinheritance
Preterition consists in the omission in the testators will of the forced heirs or anyone of them, either because
they are not mentioned therein, or, though mentioned they are neither instituted as heirs nor are expressly
disinherited. Disinheritance, in turn, is a testamentary disposition depriving any compulsory heir of his share in
the legitime for a cause authorized by law. While disinheritance is express, preterition upon the other hand, is
presumed to be involun- taria." Express as disinheritance should be, the same must be supported by a legal
cause specified in the will itself.
In disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been
illegally deprived
ACAIN VS IAC 155 SCRA 100 (1987)
Preterition annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance
The only provisions which do not result in intestacy are the legacies and devises made in the will for they should
stand valid and respected, except insofar as the legitimes are concerned.
The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator
results in totally abrogating the will because the nullification of such institution of universal heirswithout any other
testamentary disposition in the willamounts to a declaration that nothing at all was written.
Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway for inferential interpretation
(Nuguid v. Nuguid). No legacies nor devises having been provided in the will, the whole property of the deceased
has been left by universal title to petitioner and his brothers and sisters.
The effect of annulling the institution of heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74
Phil. 185 [1943]) except that proper legacies and devises must, as already stated above, be respected.
BALANE: To recapitulate, therefore, the correct rule on the effect of preterition: Preterition abrogates the institution of
heir but respects legacies and devises insofar as these do not impair the legitimes. Thus, if the will contains only
institutions of heirs and there is preterition, total intestacy will result; if there are legacies or devises and there is
preterition, the legacies or devises will stand, to the extent of the free portion (merely to be reduced, not set aside, if
the legitimes are impaired) but the institution of heirs, if any, will be swept away.
COMPLETION OF LEGITIME
Article 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate
not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken
proportionally from the shares of the other compulsory heirs. (1080a)

BALANE:
This article is redundant and completely unnecessary if it is, as some believe, made to apply to cases of preterition. If
there is preterition, only Article 854 need be applied: that article is sufficient and self-implementing for cases of
preterition. Art. 855 talks about completion of legitime, NOT preterition. The Code Commission meant this provision to
apply in cases of preterition, but if you analyse the provision, it really does not refer to preterition because something is
left to the compulsory heirs
The remedy in this article pertaining to completion for legitime is superfluous. Since this article, properly understood,
does not apply to preterition but to completion of legitime, it is redundant, because the rules and manner of completing
impaired legitimes are laid down with greater detail in Articles 906, 907, 909, 910, and 911.
APPLICABILITY OF ART. 855; IMPAIRMENT OF LEGITIME

This article applies if:
1. It is a case of Testamentary Succession (meaning there is a will)
Thus, there must be a free portion which the testator disposes of in his will
2. There is an impairment of legitime of a share of a child or descendant, but NO preterition
The compulsory heirs receive something from the inheritance, but it is LESS than his legitime. Thus, it applies in
case of Impairment of Legitime.
This article is properly applied in cases where a compulsory heir is not preterited but left something (because
not all the estate is disposed of by will) less than his legitime. Article 855 really talks of a completion of
legitime.
BALANE: Art. 855 should not only apply to children and descendants but to ALL compulsory heirs, which
includes the surviving spouse, or parents and ascendants (in default of descendants)
RULE IN ART. 855; COMPLETION OF LEGITIME

RULE: IF A COMPULSORY HEIRS LEGITIME IS IMPAIRED, HE MAY FILE AN ACTION FOR COMPLETION OF HIS LEGITIME
Art. 855 provides a remedy to a compulsory heir
How is the legitime completed?
Art. 855 says that it is completed by taking portions from the following (in the order of preference)
1. From the part of the estate not disposed of by the will, if any
2. Proportionally from the shares of the other compulsory heirs (if there is no estate not disposed of if it is
insufficient)
ERRONEOUS RULE IN ART. 855

Art. 855 is erroneous because the remedy it provides will cause even more problems, to follow the rule it lays down
leads to a reduction of shares of compulsory heirs whose legitimes are already impaired.
BALANE:
The remedy is Art. 855 is ERRONEOUS! It will lead to absurd results
Its coverage should extend NOT only to children and descendants, but to all compulsory heirs. As subsequent
articles (906, etc) mandate, any compulsory heir whose legitime is impaired may demand that the same be fully
satisfied.
The proportionate reductions (after consuming the undisposed portion) should be borne NOT by the compulsory
heirs as such but by the testamentary heirs, including the devisees and legatees. To make the compulsory heirs qua
compulsory heirs bear the reduction would mean reducing their own legitimesa patent absurdity.
That would be solving one problem by creating another: a legitimary robbing Peter to pay Paul solution. As
correctly stated by Article 907, it is testamentary dispositions that must be reduced if they impair or diminish the
legitimes of compulsory heirs.
TOLENTINO
Clearly, the present article suffers from very patent and fundamental errors. It could have well been omitted, and the
Code would have been much better with such omission.
The determination and payment of the share of a compulsory heir omitted in the will can be made under other
provisions of the Code; the present article merely creates confusion.
WHAT SHOULD BE THE CORRECT RULE IN ART. 855? (ACCORDING TO BALANE AND TOLENTINO)
The impaired legitime of the compulsory heir should be completed by taking portions from the following: (in the order of
preference)

1. From the part of the estate not disposed of by the will, if any
2. Proportionally from the shares of the testamentary heirs, devisees or legatees (if there is no estate not
disposed of if it is insufficient)
Note that you can still reduce the share of a compulsory heir whose legitime is not impaired.
TOLENTINO: To harmonize this article with the system of legitimes, and to erase its absurdity, it should perhaps be
rephrased as follows: The share of the compulsory heir omitted in a will must first be taken from the part of the estate
not disposed of by the will, if any: if that is not sufficient, as much as may be necessary must be taken proportionally
from the shares of the other heirs given to them by will.
BALANE: You should not reduce the legitime of the compulsory heirs, but rather, proportionally reduce the shares of the
testamentary heirs (who may also be compulsory heirs whose legitimate is not impaired, meaning, they get more than
entitled legitime)
NON-TRANSMISSION OF SUCCESSIONAL RIGHTS IN CASES OF PRE-DECEASE, INCAPACITY, OR

RENUNCIATION
Article 856. A voluntary heir who dies before the testator transmits nothing to his heirs.
A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces
the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code.
(766a)
BALANE:
Art. 856 is inaccurate and misleading
Because it suggests that there are exceptions to the rule that an heirin case of predecease, incapacity, or
renunciation transmits nothing to his own heirs. This rule of non- transmission is absolute; there is no exception to
it. Representation does not constitute an exception, because in representation the person represented does not
transmit anything to his heirs. Representation is rather a form of subrogation
Art. 856 says both too much and too little
Too muchbecause this article is found in the chapter on testamentary succession (in the section on institution of
heir); thus it should speak only of voluntary or testamentary heirs. Yet the second paragprah speaks of compulsory
succession
Too littlebecause if it wished to cover the entire gamut of rules on this point, the first paragraph only mentions pre-
decease but does not mention unworthiness of unwillingness to succeed.
Too littleIt also does not mention legal or intestate heirs. Neither does it provide for cases of disinheritance.
Art. 856 should be modified to read:
An heirwhether compulsory, voluntary, or legal transmits nothing to his heirs in case of predecease, incapacity,
renunciation, or disinheritance. However, in case of predecease or incapacity of compulsory or legal heirs, as well
as disinheritance of compulsory heirs, the rules on representation shall apply.
APPLICABILITY OF ART. 856;

Art. 856 talks about certain instances when a testamentary and complusory heirs cannot inherit due to certain causes
These instances are:
1. Predecease (heir dies before testator)
2. Unworthiness (heir is incapacitated to succeed)
3. Unwillingness (heir renounces his share)
RULE IN ART. 856; PROPER RULE OF NON-TRANSMISSION

Art. 856: A voluntary heir who dies before the testator transmits NOTHING to his heirs. A compulsory heir who dies
before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right
to his own heirs except in cases expressly provided for in this Code.
BALANE:
This should not cover merely cases where the testamentary heir pre-deceases the testator, but also cases where he
is incapacitated to succeed (unworthiness) and renounces his inheritance (unwillingness).

PROPER RULE: A VOLUNTARY, COMPULSORY OR LEGAL HEIR WHO DIES BEFORE THE TESTATOR, IS UNWORTHY OR
UNWILLING TO SUCCEED TRANSMITS NOTHING TO HIS HEIRS.
Dead person cannot inherit. Unqualified or unwilling persons also cannot inherit.
This rule on non-transmission is ABSOLUTE. But in certain cases, there may be representation
There may be representation by the heirs of a pre-deceased or incapacitated/unworthy compulsory or legal
heirs. Though there can never be representation in case of unwilling heirs; and never in the case of
testamentary heirs
BALANE: Representation is NOT transmission, but rather, a form of subrogation
Rules on Non-Transmission of Successional Rights and Representation
PREDECEASE INCAPACITY RENUNCIATION DISINHERITANCE
Compulsory 1. Transmits Nothing

Succession 2. Representation
1. Transmits Nothing 1. Transmits Nothing
2. Representation 2. No Representation
Intestate
Succession
Not applicable
Testamentary 1. Transmits Nothing
Succession 2. No Representation
NOTE:
In all cases, there is NO transmission of successional rights to the heir (regardless of the kind of heir or cause)
Representation only applies in Compulsory and Intestate Succession, NEVER in Testamentary Succession
Representation only applies in case of Pre-Decease and Incapacity, NEVER in Renunciation
SECTION 3: SUBSTITUTION OF HEIR
DEFINITION OF SUBSTITUTION
Article 857. Substitution is the appointment of another heir so that he may enter into the inheritance in default
of the heir originally instituted. (n)
DEFINITION OF SUBSTITUTION
The definition of substitution in Art. 857 is incomplete because it covers only simple substitution and excludes the
fideicommissary.
In the fideicommissary, the second heir does not succeed in default of the first, but after the first.
BALANE: The complete definition should be Substitution is the appointment of another heir so that he may enter
into the inheritance in default of, or subsequent to, the heir originally instituted.
In simple substitutions, the testator simply makes a second choice, in case the first choice does not inherit.
In fideicommissary substitutions, the testator imposes what is essentially a restriction or burden on the first heir,
coupled with a selection of a subsequent recipient of the property.
BASIS OF SUBSTITUTION OF HEIRS

The right to provide for substitutions is based on testamentary freedom.
For simple substitution, the basis is the testators right to make a second choice as to who will succeed him, in
case his first choice fails to succeed.
For fideicommissary substitution, the basis is the testators right to impose burdens on his heirs.
SUBSTITUTION IN RELATION TO CONDITIONAL INSTITUTIONS

With respect to simple substitution, this section is properly a part of the next section (Section 4), which deals, inter alia,
with conditional testamentary dispositions. Simple substitution is really a form of conditional institution.
KINDS OF SUBSTITUTION

Article 858. Substitution of heirs may be:

(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary. (n)
KINDS OF SUBSTITUTION
Art. 858 enumerates four kinds of substitution:
1. Simple / common (vulgar)Article 859
2. Brief / compendious (brevilocua / compendiosa) Article 860
3. Reciprocal (reciproca)Article 861
4. Fideicommisary (fideicomisaria) Art. 863
But, in reality, there are only two kinds of substitution: the simple or common (vulgar) and the fideicommissary
(fideicomisaria).
These two are mutually exclusive; i.e., a substitution must be one or the other, and cannot be both at the same
time.
The two others enumeratedthe brief or compendious and the reciprocal are merely variations
BALANE: The Spanish Code, in addition to the four here enumerated, had two more substitutions (both of which were
eliminated in the present Code): the pupilar and the ejemplar
SIMPLE/COMMON (VULGAR) SUBSTITUTION
Article 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case
such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the
inheritance.
A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned
in the preceding paragraph, unless the testator has otherwise provided.
CAUSES OF SIMPLE SUBSTITUTION

1. Predecease of the first heir
2. Renunciation of the first heir
3. Incapacity of the first heir
APPLICATION OF SIMPLE SUBSTITUTION

1. Full Simple Substitution
Testator may provide for simple substitution with ALL three causes by:
a. Specifying all the three causes,
b. By merely providing for a simple substitution
A simple substitution, without a statement of the cases to which it refers, shall comprise of the three causes
2. Restricted Simple Substitution
The testator may limit the operation of simple substitution by specifying only one or two of the three causes.
3. Grounds/Causes for Simple Substitution is Exclusive
May the testator provide for a substitution on grounds other than those provided in this article?
No, if the ground provided for is other than the three mentioned then it becomes a condition
4. In case of renunciation by the first heir, must the substitute have capacity at the time of the renunciation?
Stated differently, supposing the substitute dies before the first heir manifests his renunciation, may the successors
of the substitute acquire the testamentary disposition?
Either view is defensible and supportable by legal provisions
The view that the substitute must have capacity at the time of the renunciation by the first heir finds support in
Article 1034, par. 3
If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall
also be considered.

A simple substitution is a form of conditional institution; therefore, Article 1034, par. 3 can be applied to it.
The opposite viewthat the substitute need not have capacity at the time of the renunciation (as when he died
previously)can be defended by an invocation of Articles 1042 and 533, par. 2:
Art. 1042. The effects of the acceptance or repudiation of the inheritance shall always retroact to the
moment of the death of the decedent.
Art. 533. One who validly renounces an inheritance is deemed never to have possessed the same.
Will the substitute be disqualified if the cause of the first heirs predecease is that the substitute killed him?
BRIEF OR COMPENDIOUS SUBSTITUTION
Article 860. Two or more persons may be substituted for one; and one person for two or more heirs. (778)
BRIEF OR COMPENDIOUS SUBSTITUTION DEFINED

Brief or compendious substitutionis a possible variation of either a vulgar or a fideicomisaria.
Distinctions between Brief and Compendious Substitution (according to some civilists)
1. Brieftwo or more substitutes for one original heir
2. Compendiousone substitute for two or more original heirs
BALANE: The majority of commentators, however, make no distinction between the two, and certainly the law uses the
terms interchangeably.
APPLICATION OF BRIEF/COMPENDIOUS SUBSTITUTION

RULE: IF THERE ARE TWO HEIRS IN BRIEF/COMPENDIOUS SUBSTITUTION, BOTH MUST DEFAULT IN ORDER FOR
SUBSTITUTION TO TAKE PLACE
If one is substituted for two or more original heirs, what is the effect of default of one but not all of the original heirs?
Substitution will NOT take place; the share left vacant will accrue to the surviving co-heir or co-heirs.
Substitution will take place only if ALL the original heirs are disqualified.
Example: X makes the following provision in his will: I institute A and B to 1/3 of my estate and nominate C as their
substitute. If A predeceases B, the 1/3 portion, upon Xs death goes to B; there is no substitution by C. Substitution
occurs only if both A and B are disqualified.
Note: The obvious exception to this is a case where the testator provides for substitution in the event of the death
(or renunciation or incapacity) of any one of the original heirs.
RECIPROCAL SUBSTITUTION
Article 861. If heirs instituted in unequal shares should be reciprocally substituted, the substitute shall
acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the
intention of the testator was otherwise. If there are more than one substitute, they shall have the same share
in the substitution as in the institution. (779a)
RECIPROCAL SUBSTITUTION DEFINED

Reciprocal substitution is governed by this article. Like the brief/compendious, reciprocal substitution is not a distinct
kind of substitution, but is rather a possible variation of the vulgar or the fideicomisaria.
In reciprocal substitution, the heirs (as originally instituted) are substituted for each other based on either simple or
fideicommissary substitution.
If both are disqualified, then no substitution will take place and the estate will pass by intestacy.
Basically, in reciprocal substitution, the heirs are the substitutes of one another
APPLICATION OF RECIPROCAL SUBSTITUTION

1. If heirs instituted in unequal (or equal) shares should be reciprocally substituted, the substitute (heir) shall
acquire the share of the heir who dies, renounces, or is incapacitated
Example: I give 1/4 of my to A and 1/8 to B, and i institute them reciprocally If A dies, his share will go to B; if B
dies, his share will go to A.

2. If there are more than one substitute, they shall have the same share in the substitution as in the institution.
Example: A, B, and C are instituted, respectively, to 1/2, 1/3 and 1/6 of the estate. Should A predecease the
testator, B and C will acquire As 1/2 portion in the proportion of 2:1 (their testamentary shares being 1/3 and 1/6).
Should B predecease, A and C will get Bs 1/3 portion in the proportion of 3:1 (corresponding to the testamentary
shares of 1/2 and 1/6). Should C predecease, A and B will share Cs 1/6 portion in the proportion of 3:2, by the
same logic.
SUBSTITUTE SUBJECT TO THE SAME CONDITIONS IMPOSED ON THE HEIRS
Article 862. The substitute shall be subject to the same charges and conditions imposed upon the instituted
heir, unless and testator has expressly provided the contrary, or the charges or conditions are personally
applicable only to the heir instituted. (780)
Art. 862 provides that the substitute shall be subject to the same charges and conditions imposed upon the
instituted heir
Unless and testator has expressly provided the contrary, or the charges or conditions are personally applicable only
to the heir instituted.
The rationale for this provision is that the substitute merely takes the place of the original heir.
BALANE: Substitute steps into the shoes of the instituted heirs
FIDEICOMMISSARY SUBSTITUTION
Article 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted
with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be
valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally
instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of the
death of the testator. (781a)
Article 866. The second heir shall acquire a right to the succession from the time of the testator's death, even
though he should die before the fiduciary. The right of the second heir shall pass to his heirs. (784)
FIDEICOMMISSARY SUBSTITUTION DEFINED; ELEMENTS

Elements of Fideicommissary Substitution
1. A first heir (fiduciary) who takes the property upon the testators death
2. A second heir (fideicommissary heir) who takes the property subsequently from the fiduciary
3. The second heir must be one degree from the first heir
4. The dual obligation imposed upon the fiduciary to preserve the property and to transmit it after the lapse of the
period to the fideicommissary heir
5. Both heirs must be living and qualified to succeed at the time of the testators death.
1. A FIRST HEIR (FIDUCIARY) WHO TAKES THE PROPERTY UPON THE TESTATORS DEATH
This is the heir normally instituted to succeed
2. A SECOND HEIR (FIDEICOMMISSARY HEIR) WHO TAKES THE PROPERTY SUBSEQUENTLY FROM THE FIDUCIARY UPON
THE EXPIRATION OF THE TENURE OF THE FIDUCIARY
The fideicommissary heir does not receive the property until the fiduciarys right expires.
Both heirs enter into the inheritance, one after the other, each in his own turn. This distinguishes the
fideicomisaria from the vulgar, in which the substitute inherits only if the first heir fails to inherit.
Period of the first heir's tenure: Generally, the period indicated by the testator, BUT if the testator did not indicate
a period, then the fiduciarys lifetime.
Note, however, that, though the fideicommissary heir does not receive the property upon the testators death, his
right thereto vests at that time and merely becomes subject to a period, and that right passes to his own heirs
should he die before the fiduciarys right expires (Article 866)

Only one transmission is allowed, from the first heir to the second heir
3. THE SECOND HEIR MUST BE ONE DEGREE FROM THE FIRST HEIR
The second heir MUST be in the first degree of blood relationship with the first heir (Palacios vs. Ramirez)
As the word degree is used in Articles 963, 964 and 966
In other words, must the second heir be either a child or a parent of the first heir
PALACIOS VS. RAMIREZ 111 SCRA 704 (1982)
Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir
originally instituted. (Art. 857, Civil Code.) And that there are several kinds of substitutions, namely: simple or
common, brief or compendious, reciprocal, and fideicommissary. (Art. 858, Civil Code). According to Tolentino,
Although the Code enumerates four classes, there are really only two principal classes of substitutions: the
simple and the fideicommissary. The others are merely variations of these two.
In this case, the testator provided for fideicommisary substitution but the court ruled that such
substitution was VOID because the substitutes are not related to the heir originally instituted.
Art. 863 of the Civil Code validates a fideicommissary substitution provided such substitution does not go
beyond one degree from the heir originally instituted.
Manresa, Morell, and Sanchez Roman, however, construe the word degree as generation, and the present
Code has obviously followed this interpretation, by proving that the substitution shall not go beyond one
degree from the heir originally instituted.
The Code thus clearly indicates that the second heir must be related to and be one generation from
the first heir. From this, it follows that the fideicommissary can only be either a child or a parent of
the first heir. These are the only relatives who are one generation or degree from the fiduciary.
BALANE:
It is not very clear how the phrase one degree from the heir originally instituted clearly indicates that
the second heir must be related to and be one generation from the first heir, and thereby sweeps aside
the theory that degree simply means transfer.
The phrase is ambiguous, it is ambiguous in our code and in the spanish code, though I agree that it
pertains to blood relationship.
An exception is the case of an adopted child, they should be included under this kind of substitution
as they are legitimate children by legal fiction.
The eminent civilist Justice Jose Vitug opines that the Palacios interpretation of degree as degree of
relationship would disenfranchise a juridical person from being either a fiduciary or fideicommissary heir.
Thus, fideicommisary substitutes only applies to natural persons
4. THE DUAL OBLIGATION IMPOSED UPON THE FIDUCIARY TO PRESERVE THE PROPERTY AND TO TRANSMIT IT AFTER THE
LAPSE OF THE PERIOD TO THE FIDEICOMMISSARY HEIR
This requisite is the essence of fideicommisary substitutions
Two obligations are imposed on the first heir or fiduciary:
a. Obligation to Preserve the property
b. Obligation to Transfer the property to the second heir after the lapse of a certain period
These two obligations makes the position of the fiduciary basically that of a usufructuary, with the right to
use and enjoy the property but without the right to dispose
If there is no absolute obligation to preserve and transmit, there is NO fideicommisary substitution, BUT the
institution is not necessarily void; it may be valid as some other disposition
PCIB VS. ESCOLIN 56 SCRA 266 (1974)
In this case, the testator instituted her husband to her entire estate as she had no compulsory heirs, along
with the right to manage, control, use enjoy and dispose of such estate; though there were certain properties
in Texas which could not be disposed of. The testator also provided that upon her husbands death, the
remainder or residue of the estate would pass to her siblings.
Court held that there was no substitution that took place. There was no fideicommissary substitution as there
was no clear obligation on the part of the heir to preserve the properties for a second heir (substitute heirs).
Neither was there simple substitution as none of its causes (predecease, renunciation or incapacity) was
provided for. No simple substitution either because the provision in the will contemplates the death of the
husband after the wifes death, not before.
Thus, the substitution provision in the will is VOID and in view of the invalidity of the provision for
substitution in the Will, the husbands inheritance to the entirety of the wifes estate is irrevocable and
final.

There are generally only two kinds of substitution provided for and authorized by our Civil Code (Articles
857-870), namely, (1) simple or common substitution, sometimes referred to as vulgar substitution (Article
859), and (2) fideicommissary substitution (Article 863). All other substitutions are merely variations of these.
Substitution occurs only when another heir is appointed in a will so that he may enter into inheritance in
default of the heir originally instituted, (Article 857) and, in the present case, no such possible default is
contemplated.
The siblings of the testator are not substitutes for the husband because, under her will, they are not to inherit
what the husband cannot, would not or may not inherit, but what he would not dispose of from his
inheritance; rather, therefore, they are also heirs instituted simultaneously with the husband. Such an
institution (of the siblings of the testator) was a simultaneous institutionon the one hand, of the
husband subject to a resolutory condition (which is his death), on the other, of the testators siblings
subject to a suspensive condition (the husbands death); but not a fideicomisaria because no
obligation is imposed thereby upon Hodges to preserve the estate or any part thereof for anyone
else.
BALANE: Just because the substitution is void, does NOT make the institution void. It is merely a different
kind of institution a double institution in this case. The first institution (to the husband) subject to a resolutory
condition (to the siblings), the second institution subject to a suspensive condition
5. BOTH HEIRS MUST BE LIVING AND QUALIFIED TO SUCCEED AT THE TIME OF THE TESTATORS DEATH.
Note that this two-fold requirement is to be met only upon the testators death, and this applies not only to the
fiduciary but to the second heir as well.
Upon the testators death, the second heir already acquires a VESTED right
Thus, the second heir need not survive the first heir; if the second heir dies before the first heir, the second
heirs own heirs merely take his place (Article 866)
FIDEICOMMISARY SUBSTITUTION CANNOT PREJUDICE THE LEGITIME
Article 864. A fideicommissary substitution can never burden the legitime. (782a)
The legitime passes by strict operation of law, therefore the testator has no power over it.
This article is echoed by Articles 872 and 904, par. 2.
MANNER OF PROVIDING FOR FIDEICOMMISSARY SUBSTITUTIONS
Article 865. Every fideicommissary substitution must be expressly made in order that it may be valid.
The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than
those which arise from legitimate expenses, credits and improvements, save in the case where the testator
has provided otherwise. (783)
Article 867. The following shall not take effect:

(1) Fideicommissary substitutions which are not made in an express manner, either by giving them this name,
or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir;
EXPRESS MANNER OF IMPOSING A FIDEICOMMISSARY SUBSTITUTION

Every fideicommissary substitution must be expressly made in order that it may be valid.
Two ways of making an express imposition:
1. By the use of the term fideicommissary
2. By imposing upon the first heir the absolute obligation to preserve and to transmit to the second heir (Art. 867)
ALLOWABLE DEDUCTIONS TO THE INHERITANCE (TO BE TRANSMITTED TO THE FIDEICOMMISSARY)

The general rule is that the fiduciary should deliver the property intact and undiminished to the fideicommissary heir
upon the arrival of the period.

The only deductions allowed in the absence of a contrary provision in the will are:
1. Legitimate expenses
2. Credits
3. Improvements
These must pertain to necessary and useful expenses, not ornamental expenses.
DAMAGE OR DETERIORATION TO THE INHERITANCE

RULE: THE FIDUCIARY MUST BEAR THE LOSS, DAMAGE, OR DETERIORATION IF IT IS DUE TO HIS FAULT OR
NEGLIGENCE
UNLESS, it is caused by a fortuitous event or ordinary wear and tear
RIGHT OF THE FIDEICOMMISSARY VESTS AT THE TIME OF THE TESTATOR'S DEATH
Article 866. The second heir shall acquire a right to the succession from the time of the testator's death, even
though he should die before the fiduciary. The right of the second heir shall pass to his heirs. (784)
Article 777. The rights to the succession are transmitted from the moment of the death of the decedent.
Article 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights
and transmitting them to his heirs even before the arrival of the term.
The second heirs right vests upon the testators death, conformably to Article 777 and also to Article 878 (since, as
far as the second heir is concerned, the institution of him is one subject to a suspensive term).
Thus, the second heir does not have to survive the first heir in order for the substitution to be effective. The
second heirs own heirs simply take his place. His own heirs succeed to the vested right already possessed by the
second heir.
But remember that the second heir must survive the testator, otherwise there would be no institution/substitution
INEFFECTIVE PROVISIONS IN A WILL
Article 867. The following shall not take effect:

(1) Fideicommissary substitutions which are not made in an express manner, either by giving them this
name, or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir;
(2) Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit
fixed in Article 863;
(3) Those which impose upon the heir the charge of paying to various persons successively, beyond the limit
prescribed in article 863, a certain income or pension;
(4) Those which leave to a person the whole or part of the hereditary property in order that he may apply or
invest the same according to secret instructions communicated to him by the testator. (785a)
Article 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty
years are void. (n)
INEFFECTIVE PROVISIONS IN A WILL

1. FIDEICOMMISSARY SUBSTITUTIONS WHICH ARE NOT MADE IN AN EXPRESS MANNER
Note that the failure to expressly provide for a fideicommisary substitution does NOT automatically annul the
institution. It only means that the institution is not effective as a fideicommisary substitution, it could, however, be
something else. (See PCIB vs Escolin)
2. PROVISIONS WHICH CONTAIN A PERPETUAL PROHIBITION TO ALIENATE, AND EVEN A TEMPORARY ONE, BEYOND THE
LIMIT FIXED IN ARTICLE 863
This pertains to prohibited institutions, not really to fideicommissary substitutions

The limit referred to is in Art. 870.
In institutions or substitutions, a perpetual prohibition or temporary prohibition (but for more than 20 years)
to alienate the inheritance is ineffective
This is because of public policy
BALANE: If the testator imposes a longer period than 20 years, the period is NOT void, but rather, the
prohibition is valid only for 20 years.
So the disposition is not really void, contrary to what Art. 870 provides
BUT in fideicommisary substitutions, the limit is the first heirs lifetime.
Thus, this is an exception, the limitation in Art. 870 will not apply, rather, Art. 863 will apply, which allows, as a
period, the lifetime of the first heir.
3. THOSE WHICH IMPOSE UPON THE HEIR THE CHARGE OF PAYING, TO VARIOUS PERSONS SUCCESSIVELY, A CERTAIN
INCOME OR PENSION BEYOND THE LIMIT PRESCRIBED IN ARTICLE 863
The testator may provide that the heir is charged with the obligation of paying pension or income to third persons
Conformably to the limits set in Article 863, there can only be two beneficiaries of the pension, one after the
other, and the second must be one degree (of blood relationship) from the first.
In other words, the first and second recipient must be within one degree from each other and it cannot extend
beyond the second recipient.
Example: I give my entire estate to X and impose upon him the obligation to give a P10,000 pension to Y and in
Y's death, to Y's son."
But if the obligation is to give pension to Y and then in Ys death, his grandson, then it is ineffective because
they are not within one degree from each other
If the obligation is to give pension to Y and then in Ys death, his son, then in the sons death, to Ys grandson,
then it is also ineffective because there can only be two beneficiaries.
There is NO prohibition, however, on simultaneous beneficiaries.
Example: I give my entire estate to X and impose upon him the obligation to give a P10,000 pension to Y and Z
and in case of their deaths, to their sons.
4. THOSE WHICH LEAVE TO A PERSON THE WHOLE OR PART OF THE HEREDITARY PROPERTY IN ORDER THAT HE MAY
APPLY OR INVEST THE SAME ACCORDING TO SECRET INSTRUCTIONS COMMUNICATED TO HIM BY THE TESTATOR
This pertains to Dummy Provisions where the testator provides for an ostensible heir or dummy for the purpose
of circumventing some prohibition or disqualification.
Such as a testator instituting a dummy in order to benefit his mistress.
The ostensible heir here is in reality only a dummy, because, in reality, the person intended to be benefited is the
one to whom the secret instructions refer.
Note that the institution of such ostensible heir or dummy makes the institution VOID because there is no intent to
dispose.
BALANE: The practical problem here, however, is the difficulty of establishing the fact of circumvention.
Supposing the ostensible heir conceals or destroys the secret instructions (something fairly easy to do) and
claims as heir under the testamentary provision as worded, what then? It would appear that, in the absence of
proof, the disposition is operative in favor of such ostensible heir.
EFFECTIVE OF INVALIDITY OR INEFFECTIVITY OF THE FIDEICOMMISSARY SUBSTITUTION
Article 868. The nullity of the fideicommissary substitution does not prejudice the validity of the institution of
the heirs first designated; the fideicommissary clause shall simply be considered as not written. (786)
EFFECTIVE OF INVALIDITY/INEFFECTIVITY OF THE FIDEICOMMISSARY SUBSTITUTION

If the fideicommissary substitution (institution of the second heir) is void or ineffective, the institution of the first heir
simply becomes pure and unqualified.
Void such as if the second heir is not related by one degree from the first heir
Ineffective or inoperative such as if the second heir predeceases the testator or renounces
EFFECTIVE OF INVALIDITY/INEFFECTIVITY OF THE INSTITUTION OF THE FIRST HEIR IN FIDEICOMMISSARY

SUBSTITUTIONS
This article does not provide for a case where it is the institution of the first heir that is void or ineffective

JUSTICE VITUG: When the fiduciary predeceases or is unable to succeed, the fideicommissary heir takes the
inheritance upon the death of the decedent
BALANE: Vitug, however, does not elaborate. Suffice it to say that there is much to recommend the view that the nullity
or inefficacy of the institution of the fiduciary should not nullify the institution of the fideicommissary heir, but, on
the contrary, should make the right of the latter absolute and effective upon the testators death, as if no
fiduciary had been instituted. This is the best way to respect the intent of the testator which is to transmit to the
fideicommissary heir the property covered by the fideicommissary substitution, independently of the will of the fiduciary.
INSTITUTION OF SUCCESSIVE USUFRUCTUARIES
Article 869. A provision whereby the testator leaves to a person the whole or part of the inheritance, and to
another the usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but
successively, the provisions of article 863 shall apply. (787a)
BALANE: This is similar to Art. 867, par. 3 on the heir having the obligation of paying pension or income to other
persons. It is NOT a fideicommissary substitution but its rulesand requirements in Art. 863 apply; and by analogy the
other provisions on fideicommissaries can also apply
If the testator institutes successive usufructuaries, there can only be two usufructuaries, one after the other, and, as to
the two of them, all the requisites of Article 863 (on fideicommisary substitutions) must be present.
In other words, if there can only be two successive usufructuaries and they should be within one degree (of blood
relationship) from each other
Note that simultaneous (as distinguished from successive) usufructuaries are allowed and not restricted, the
testator can designate as many usufructuaries as he wants
Also, just as there can be a substitution with regard to the usufruct, there can also be a substitution with regard to
the naked ownership.
Example: "I give to A naked ownership, and to B the usufruct and upon B's death, to his son C.
LIMIT ON INALIENABILITY OF THE INHERITANCE
Article 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty
years are void. (n)
BALANE:
This has nothing to do with substitution. It refers to simple institution of heir, devisee or legatee.
This article is a recognition of the testators right to prohibit alienation and is also a restriction on the testators
testamentary freedom.
It is based on public policy because if the property remains inalienable forever, it will be frozen and will negatively
affect the economy.
If the testator provides for a period of inalienability of his properties, to be transmitted through succession.
The period should NOT be more than twenty years.
What if it is more than twenty years? (Such as if he provides for 40 years, or the heirs lifetime, which turns out to
be longer than 20 years)
BALANE: The period should be reduced to twenty years. The disposition is NOT void, contrary what Art. 870
says. This is to respect and give effect to the testators intent
BUT remember that in fideicommisary substitutions, the limit is the first heirs lifetime (Art. 863).
What if the heir who is prohibited from disposing the inheritance sells it?
SECTION 4: TESTAMENTARY DISPOSITIONS WITH A CONDITION OR TERM

KINDS OF TESTAMENTARY DISPOSITIONS
Article 871. The institution of an heir may be made conditionally, or for a certain purpose or cause. (790a)
Article 885. The designation of the day or time when the effects of the institution of an heir shall commence or
cease shall be valid.
BALANE:
The section heading of section 4 is incomplete as it does not include modal dispositions. The wording of Article 871 is
incomplete as it does not include dispositions with a term, which is in Art. 885
The right of the testator to impose conditions, terms or modes springs from testamentary freedom. If he has the right to
dispose of his estate mortis causa, then he has the right to make the dispositions subject to a condition, term, or mode.
This is the same basis for the right to provide for substitutions.
THREE KINDS OF TESTAMENTARY DISPOSITIONS AS TO EFFECTIVITY

1. DISPOSITIONS WITH A CONDITION
Condition is defined in Article 1179: Every obligation whose performance does not depend upon a future or
uncertain event, or upon a past event unknown to the parties, is demandable at once, x x x
2. DISPOSITIONS WITH A TERM
Term is defined in Article 1193, pars. 1 and 3.
Article 1193. Obligations for whose fulfillment a day certain has been fixed, shall be demandable only when that
day comes. xxxxx A day certain is understood to be that which must necessarily come, although it may not be
known when, xxx
Difference of a term and condition?
It lies in the certainty of fulfillment. Term pertains to a future certain event, a condition pertains to an uncertain
event (future or past, unknown to the parties).
3. DISPOSITIONS WITH A MODE
Mode is defined in Article 882: The statement of the object of the institution, or the application of the property
left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such
was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir
or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may
receive, together with its fruits and interests, if her or they should disregard this obligation.
Art. 871 and 872 pertains to general provisions applicable to all three
Art. 873, 874, 875, 876, 877, 883 (par. 2), 879, 880, 881, 884 pertains to Conditional Dispositions
Art. 878 and 885 pertains to Dispositions with a Term
Art. 882 and 883 (par. 1) pertains to Modal Dispositions
TESTAMENTARY PROVISIONS CANNOT PREJUDICE THE LEGITIME
Article 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes
prescribed in this Code. Should he do so, the same shall be considered as not imposed. (813a)
When a testator imposes any of the following upon the legitimes, is considered as NOT imposed:
1. Charge
2. Condition
3. Substitution
BALANE: The legitime passes by strict operation of law, independently of the testators will. This article is a logical
consequence of that principle.
This rule is similar but broader than Art. 864 (on fideicommissary substitutions) and is also echoed in Article 904, par. 2
CONDITIONAL DISPOSITIONS

Summary of the Rules on Conditional Dispositions
KIND OF CONDITION EFFECT BASIS
Impossible Conditions
Art. 873
Illegal Conditions Condition is VOID
Condition prohibiting a first marriage
Condition prohibiting a subsequent a. Imposed by the deceased spouse, or by his/her

marriage Art. 874
asecendants or descendants: Condition is VALID
b. Imposed by anyone else: Condition is VOID
Condition that the heir make a

provision in his will in favor of the Disposition is VOID Art. 875
testator or of any other person
IMPOSSIBLE AND ILLEGAL 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. (792a)
RULE ON IMPOSSIBLE OR ILLEGAL CONDITIONS

RULE: THE IMPOSSIBLE OR ILLEGAL CONDITION IS SIMPLY CONSIDERED NOT WRITTEN.
The testamentary disposition itself is not annulled; on the contrary, it becomes pure. Only the condition is VOID.
Note that the rule in donations is the same (Art. 727), only the condition is affected, the disposition remains valid.
This is because testamentary dispositions and donations share a common element, they are both gratuitous and
spring from the grantors liberality.
The imposition of a condition does not displace liberality as the basis of the grant.
On the other hand, the rule in obligations is different, in this case, the obligation which depends on the
condition is void.
In obligations which are onerous (Art. 1183), the condition that is imposed becomes an integral part of the causa
of the obligation.
The elimination of that condition for being impossible or illegal results in a failure of cause, which is an essential
element of an obligation.
Thus, for impossible or illegal conditions:
1. In testamentary dispositions or donations: considered NOT written (condition is void)
2. In onerous obligations: obligation (it pertains to) is VOID
CONDITIONS WHICH PROHIBIT MARRIAGE
Article 874. An absolute condition not to contract a first or subsequent marriage shall be considered as not
written unless such condition has been imposed on the widow or widower by the deceased spouse, or by the
latter's ascendants or descendants.
Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised or
bequeathed to any person for the time during which he or she should remain unmarried or in widowhood.
(793a)

Ar. 874 only pertains to ABSOLUTE conditions prohibiting marriage.
It pertains to a negative condition

It does NOT cover:
1. Restrictive Conditions on Marriage
If the condition pertains to a prohibition to marry a particular person or a class, then Art. 874 does not apply.
Such as a condition prohibiting the heir to marry persons other than those of chinese descent.
2. Conditions to Contract Marriage
This article does NOT apply to the imposition of a condition to marry (either with reference to a particular person
or not).
RULES ON CONDITIONS PROHIBITING MARRIAGE

1. IF A CONDITION PROHIBITS A FIRST MARRIAGE, IT IS ALWAYS CONSIDERED AS NOT IMPOSED
Example: I give 1/3 of my estate to A if she does not get married."
The condition is considered as not imposed, thus the disposition is absolute and unconditional
2. IF A CONDITION PROHIBITS A SUBSEQUENT MARRIAGE, ITS EFFECTIVITY DEPENDS ON WHO THE TESTATOR IS
a. Imposed by the deceased spouse, or by his/her ascendants or descendants: VALID
Note that only the following may validly impose it:
i. Deceased spouse
ii. Deceased spouses ascendants or descendants (such as his/her father or son)
Example: I give my entire estate to my husband on the condition that if I predecease him, he will not get
married.
b. Imposed by anyone else: considered NOT written
Example: I give 1/3 of my estate to A on the condition that if he should be widowed, he will not get married.
3. THE TESTATOR STILL HAS A MEANS OF TERMINATING THE TESTAMENTARY BENEFACTION SHOULD THE HEIR CONTRACT
MARRIAGE (EVEN A FIRST ONE)
See second paragraph of Art. 874: Nevertheless, the right of usufruct, or an allowance or some personal prestation
may be devised or bequeathed to any person for the time during which he or she should remain unmarried or in
widowhood.
The wording of the disposition will be crucial; it should not be so worded as to constitute a prohibition
forbidden in the first paragraph.
The pensions which has been received prior to the heirs marriage is NOT forfeited.
BALANE: The purpose of this is to help the heir out while he/she is unmarried.
Example: "I give A a pension of P10,000 during the entire time she is single.
LEGACY-HUNTING DISPOSITIONS
Article 875. Any disposition made upon the condition that the heir shall make some provision in his will in
favor of the testator or of any other person shall be void. (794a)
PROHIBITION ON LEGACY-HUNTING DISPOSITIONS

A legacy hunting disposition is that made upon the condition that the heir shall make some provision in his will in
favor of the testator or of any other person.
I institute you in my will provided that you also institute me (or other persons) in yours.
Legacy-hunting dispositions, whether to heirs or legatees, are VOID
Note that it is not merely the condition that is declared void but the testamentary disposition itself which contains
the condition.
Reasons for the Prohibition
1. It converts testamentary grants into contractual transactions because the consideration becomes onerous rather
than gratuitous.
2. It deprives or restricts the heir of testamentary freedom because there is a pressure to make a will.
3. It gives the testator the power to dispose mortis causa not only of his property but also of his heirs
POTESTATIVE, CASUAL AND MIXED CONDITIONS
Article 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon as he
learns of the testator's death.

This rule shall not apply when the condition, already complied with, cannot be fulfilled again. (795a)
Article 877. If the condition is casual or mixed, it shall be sufficient if it happen or be fulfilled at any time
before or after the death of the testator, unless he has provided otherwise.
Should it have existed or should it have been fulfilled at the time the will was executed and the testator was
unaware thereof, it shall be deemed as complied with.
If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such a nature that it
can no longer exist or be complied with again. (796)
Article 883. If the person interested in the condition should prevent its fulfillment, without the fault of the heir,
the condition shall be deemed to have been complied with. (798a)
Article 879. If the potestative condition imposed upon the heir is negative, or consists in not doing or not
giving something, he shall comply by giving a security that he will not do or give that which has been
prohibited by the testator, and that in case of contravention he will return whatever he may have received,
together with its fruits and interests. (800a)
Article 884. Conditions imposed by the testator upon the heirs shall be governed by the rules established for
conditional obligations in all matters not provided for by this Section. (791a)
APPLICABILITY OF ART. 876, 877, 883 PAR. 2, 879

These articles govern potestative, casual, and mixed conditions.
1. Potestative condition
One that depends solely on the will of the heir/devisee/legatee
2. Casual condition
One that depends on the will of a third person or on chance
3. Mixed condition
One that depends partly on the will of the heir/devisee/legatee and partly either on the will of a third person or
chance.
RULES ON POTESTATIVE, CASUAL, MIXED CONDITIONS:
1. POTESTATIVE CONDITIONS (ART. 876, 883 PAR. 2, 879)
a. Positive Potestative Condition (Art. 876)
Generally, it must be fulfilled as soon as the heir learns of the testators death
But remember the rule of constructive compliance
If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the
condition shall be deemed to have been complied with (Art. 883)
EXCEPTIONS:
i. The condition was already complied with at the time the heir learns of the testators death, and
ii. The condition is of such a nature that it cannot be fulfilled again.
c. Negative Potestative Condition (Art. 879)
This is when the potestative condition imposed upon the heir consists in not doing or not giving something,
Heir must give security to guarantee (caucion Muciana) the return of the value of property, fruits, and interests,
in case of contravention.
Note that this is the first of three instances where a caucion Muciana is required. The other two: Art. 885, par. 2
and 882
2. CASUAL OR MIXED CONDITIONS (ART. 877)
Generally, it may be fulfilled at any time (before or after testators death), unless testator provides otherwise.
But note the following qualifications if already fulfilled at the time of execution of will:
a. If testator unaware of fact of fulfillment
Deemed fulfilled
b. if testator aware thereof
i. If can no longer be fulfilled again

Deemed fulfilled
ii. If it can be fulfilled again
Must be fulfilled again.
Note also the following rules on constructive compliance
a. If casual
Not applicable
b. If mixed
i. If dependent partly on chance
Not applicable
ii. If dependent partly on the will of a third party:
(a) If third party is an interested party
Applicable
(b) If third party is not an interested party
Not applicable
NOTE: Articles 1179-1192, on conditional obligations apply suppletorily to conditional institutions (Art. 884)
WHEN THE PROPERTY IS TO BE PLACED UNDER ADMINISTRATION
Article 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed under
administration until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled, or until the
arrival of the term.
The same shall be done if the heir does not give the security required in the preceding article. (801a)
Article 881. The appointment of the administrator of the estate mentioned in the preceding article, as well as
the manner of the administration and the rights and obligations of the administrator shall be governed by the
Rules of Court. (804a)
INSTANCES WHEN THE PROPERTY SHOULD BE PLACED UNDER ADMINISTRATION

1. PENDING FULFILMENT/NON-FULFILMENT OF THE SUSPENSIVE CONDITION
Between the time of the testators death and the time of the fulfillment of the suspensive condition or of the certainty
of its non-occurrence, the property should be placed under administration.
a. If condition happens
The property will be turned over to the instituted heir.
b. If it becomes certain that condition will not happen
The property will be turned over to a secondary heir (if there is one) or to the intestate heirs, as the case may
be.
2. FAILURE TO GIVE THE SECURITY REQUIRED (CAUCION MUCIANA)
The property shall be in the executors or administrators custody until the heir furnishes the caution Muciana.
NOT APPLICABLE TO INSTITUTIONS WITH A TERM

BALANE: Despite the wording of this article, it should not be applied to institutions with a term, which are governed by
Article 885, par. 2. Otherwise, there will be an irreconcilable conflict with that article, which mandates that before the
arrival of the term, the property should be given to the legal heirs. There is now an inconsistency where none existed
before (in the Spanish Code), thanks to the unknown genius referred to by J.B.L. Reyes. The reference of this article
to institutions with a term should be disregarded.
DISPOSITIONS WITH A TERM
WHEN HEIRS RIGHT VESTS IN DISPOSITIONS WITH A TERM
and transmitting them to his heirs even before the arrival of the term. (799a)

In dispositions with a term, the heirs right vests upon the testators death, conformably to Article 777.
Therefore, should the heir die before the arrival of the (suspensive) term, he merely transmits his right to his own heirs
who can demand the property when the term arrives.
The rule in this article is similar to Article 866, in fideicommissary substitutions.
In conditional institutions, what is the rule if the instituted heir dies before the happening of the condition?
No right is transmitted to his heirs, even if he survives the testator
In conditional institutions, the heir should be living and qualified to succeed both at the time of the testators death
and at the time of the happening of the condition.
SUSPENSIVE OR RESOLUTORY TERMS
cease shall be valid.
In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or
its expiration. But in the first case he shall not enter into possession of the property until after having given
sufficient security, with the intervention of the instituted heir. (805)
NOTE: The preposition from should be inserted between or and its in the second paragraph
KINDS OF DISPOSITIONS WITH A TERM; RULES

1. Suspensive Term
Before the arrival of the term, the property should be delivered to the intestate heirs.
A cauccion Muciana has to be posted by them. (This is the second instance where a caucidn Muciana has to be
posted.)
2. Resolutory Term
Before the arrival of the term, the property should be delivered to the instituted heir.
No cauccion Muciana is required.
MODAL DISPOSITIONS
Article 882. The statement of the object of the institution, or the application of the property left by the testator,
or the charge imposed by him, shall not be considered as a condition unless it appears that such was his
intention.
That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs
give security for compliance with the wishes of the testator and for the return of anything he or they may
receive, together with its fruits and interests, if he or they should disregard this obligation. (797a)
WHAT ARE MODAL DISPOSITIONS?

BALANE: The first paragraph of this article defines a mode obliquely.
A mode is an obligation imposed upon the heir, without suspending, as a condition does, the effectivity of the institution.
A mode must be clearly imposed as an obligation in order to be considered as one.
Mere preferences or wishes expressed by the testator are not modes.
A mode functions similarly to a resolutory condition.
In fact, modes could very well have been absorbed in the concept of resolutory conditions.
Note that a cauccion Muciana should be posted by the Instituted heir (the third instance of Caucidn Muciana).
RABADILLA VS. COURT OF APPEALS 334 SCRA 522 (2000)
The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as
institution sub modo or a modal institution.
In a modal institution, the testator states:
1. The object of the institution,

2. The purpose or application of the property left by the testator, or
3. The charge imposed by the testator upon the heir.
A mode imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the
succession. On the other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled
in order for the heir to be entitled to succeed the testator. The condition suspends but does not obligate; and the
mode obligates but does not suspend. To some extent, it is similar to a resolutory condition.
In this case, the testatrix did not make the devisees inheritance and the effectivity of his institution as a devisee,
dependent on the performance of the said obligation. It is clear, though, that should the obligation be not complied
with, the property shall be turned over to the testatrixs near descendants. The manner of institution of the devisee
under subject Codicil is evidently modal in nature because it imposes a charge upon the instituted heir without,
however, affecting the efficacy of such institution.
Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should
not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator.
In case of doubt, the institution should be considered as modal and not conditional.
WHEN AN INSTITUTION CANNOT TAKE EFFECT IN THE EXACT MANNER STATED BY THE TESTATOR
Article 883. When without the fault of the heir, an institution referred to in the preceding article cannot take
effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and
in conformity with his wishes.
The intention of the testator should always be the guiding norm in determining the sufficiency of the analogous
performance.
SECTION 5: LEGITIME
DEFINITION OF LEGITIME
Article 886. Legitime is that part of the testator's property which he cannot dispose of because the law has
reserved it for certain heirs who are, therefore, called compulsory heirs. (806)
SYSTEM OF LEGITIMES
Our successional system, closely patterned after that of the Spanish Code, reserves a portion of the net estate of the
decedent in favor of certain heirs, or groups of heirs, or combination of heirs.
Such portion reserved is called the legitime
The heirs for whom the law reserves a portion are called compulsory heirs
The portion that is left available for testamentary dispositions after the legitimes are covered is called the free or
disposable portion
Three kinds of Systems:
1. Partial Reservation: a certain portion set aside for the compulsory heirs
Followed by the countries in the civil law tradition
But there are a lot of variations depending on which country. The Philippine system is based on the Spanish
system
2. Absolute Reservation: everything is set aside
3. Absolute Freedom: no reservation
Based on common law tradition, such as in the US (except in Louisiana) and UK
But there may be reservation for support of minor children (but this is not really succession)
BALANE: In the Philippines, the partial reservation system is observed
NATURE OF LEGITIMES
LEGITIME IS THAT PART OF THE TESTATOR'S PROPERTY WHICH HE CANNOT DISPOSE OF GRATUITOUSLY.
The legitimes are set aside by mandate of the law. Thus, the testator is required to set aside or reserve them.
The legitime does NOT pertain to any specific property its pertains to a value or fraction of the testators estate

Because the testator is compelled to set aside the legitimes, the heirs in whose favor the legitimes are set aside are
called compulsory heirs.
The compulsion is not on the part of the heirs (who are free to accept or reject the inheritance), but on the part
of the testator, as he is compelled to reserve the legitimes.
BALANE: The term is wrong as it gives the impression that the heirs are compelled. It was originally called
forced heirs, but this term is also erroneous also because it gives the impression that the heirs are forced to
succeed. Both terms are wrong, why did you change a wrong term with another wrong term? Hmmph!
Remember the three kinds of succession, compulsory, testamentary and intestate succession.
Compulsory succession pertains to succession of the legitime. It takes precedence and prevails over the other
kinds of succession.
COVERAGE OF THE LEGITIME

THE TESTATOR IS PROHIBITED FROM DISPOSING THE LEGITIME BY GRATUITOUS TITLE, WHICH INCLUDES:
1. Donations inter vivos
2. Testamentary dispositions mortis causa
Dispositions by onerous title are NOT prohibited or covered because, in theory, nothing is lost from the estate in an
onerous disposition, since there is merely an exchange or substitution of values.
When the disposition is for valuable consideration, there is no diminution of the estate but merely a substitution of
values, that is, the property sold is replaced by the equivalent monetary consideration
But this is on the assumption that the sale is genuine and not simulated.
CALALANG-PARULAN VS CALALANG-GARCIA, G.R. NO. 184148 JUNE 9, 2014
Presumption that the sale is genuine, the burden is on the opponents of the sale to prove that it was relatively
simulated and that it was really a donation
COMPULSORY HEIRS
Article 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and
descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in Article 287.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they
exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the
manner and to the extent established by this Code. (807a)
Article 176 of the Family Code: The legitime of each illegitimate child shall consist of one-half of the legitime
of a legitimate child. Except for this modification, all other provisions in the Civil Code governing
successional rights shall remain in force. (287a)
This list is EXCLUSIVE, but numbers 4 and 5 has been repealed by Art. 176 of the Family Code.
TUMBOKON VS LEGASPI, G.R. NO. 153736, AUGUST 12, 2010
A decedents compulsory heirs in whose favor the law reserves a part of the decedents estate are exclusively the
persons enumerated in Article 887,
THE COMPULSORY HEIRS

There are only 5 main groups of compulsory heirs:
1. Legitimate Children and Descendants

2. Legitimate Parents and Ascendants
3. Surviving Spouse
4. Illegitimate Children and Descendants
5. Illegitimate Parents (Ascendants NOT included)
CLASSIFICATION OF COMPULSORY HEIRS

1. Primary Compulsory Heirs
2. Secondary Compulsory Heirs
3. Concurring Compulsory Heirs
PRIMARY SECONDARY CONCURRING
They preferred over, and exclude, They receive legitimes only in They succeed as compulsory heirs together with the
the secondary default of the primary primary or secondary. They live in harmony, with primary
and secondary compulsory heirs and with each other.
One exception is that illegitimate children/descendants

exclude illegitimate parents (this is the only instance
where a concurring heir excludes another heir)
Legitimate Children and/or a. Legitimate Parents and/or a. Surviving Spouse

Descendants Ascendants b. Illegitimate Children and/or Descendants
b. Illegitimate Parents
1. LEGITIMATE CHILDREN
The following are considered legitimate children (Articles 54, 164, 179 of the Family Code)
a. Children conceived OR born during the marriage of the parents are legitimate.
b. Children conceived as a result of artificial insemination
c. Adopted Children (in relation to their adopter, (Secs. 17 & 18, R.A. 8552 [Domestic Adoption Act of 1998])
d. Children conceived or born before the judgment of annulment
e. Children conceived or born before the judgment of absolute nullity of the marriage under Article 36 of the
Family Code (Psychological Incapacity)
f. Children conceived or born of the subsequent marriage under Article 53 of the Family Code (in relation to Art.
52)
The law does not specify how the legitimate children should share in the legitime. There is universal agreement,
however, that they will share equally, regardless of age, sex, or marriage of origin.
2. LEGITIMATE DESCENDANTS
Such as the grandchild or great-grandchild of the decedent
The rule is that the nearer exclude the more remote
Thus, children, if all qualified, will exclude grandchildren, and so on.
BUT, the qualification to this rule is representation (succession per stripes) for legitimate descendants, when
proper.
Note also that only legitimate descendants can represent legitimate children.
The rule is different in the case of illegitimate children, who can be represented by both legitimate and
illegitimate descendants.
3. LEGITIMATE PARENTS
The rule for legitimate parents, is that, they are only excluded (from being compulsory heirs), by legitimate
children/descendants.
The rule is different for illegitimate parents who are excluded by both legitimate and illegitimate children/
descendants
Note that the adopter has, in relation to the adopted, the same successional right as legitimate parents.
Under present law (Sec. 18, R.A. 8552), the adopter displaces the biological parents in the successional
scheme relative to the estate of the adopted.
Thus, in the case of adopted children, their adopted parent is their compulsory heir, as their legitimate parent,
NOT their biological parent.
BALANE: But this is still an open question which is subject to debate.
BARTOLOME VS SSS, G.R. NO. 192531, NOVEMBER 12, 2014

The biological parents retain their rights of succession to the estate of their child who was the subject of
adoption. While the benefits arising from the death of an SSS covered employee do not form part of the
estate of the adopted child, the pertinent provision (Art 167 of labor code) on legal or intestate
succession at least reveals the policy on the rights of the biological parents and those by adoption
vis--vis the right to receive benefits from the adopted.
In the same way that certain rights still attach by virtue of the blood relation, so too should certain
obligations, which, We rule, include the exercise of parental authority, in the event of the untimely
passing of their minor offsprings adoptive parent.
We cannot leave undetermined the fate of a minor child whose second chance at a better life under the care
of the adoptive parents was snatched from him by deaths cruel grasp. Otherwise, the adopted childs quality
of life might have been better off not being adopted at all if he would only find himself orphaned in the end.
Thus, We hold that the adopters death at the time of the adopteds minority resulted in the restoration of the
biological parents parental authority over the adopted child.
4. LEGITIMATE ASCENDANTS
Such as grandparents or great-grandparents
The rule that they are excluded by legitimate children/descendants also applies.
Again, the rule that the nearer exclude the more remote applies
They are only considered compulsory heirs in default of parents.
Note that this rule is absolute in the ascending line, it is NOT qualified by representation (unlike in the case of
legitimate descendants)
5. SURVIVING SPOUSE
The person to whom the decedent is legally married.
The surviving spouse referred to here is the spouse of the decedent, NOT the spouse of a child who has
predeceased the decedent.
ROSALES VS. ROSALES 148 SCRA 69 (1987)
Issue here is, does a widow (surviving spouse of a predeceased legitmate child of the decedent), an
intestate heir of her mother-in-law?
Court that she is NOT a compulsory heir, neither in her own right, nor by right of representation.
There is no provision in the Civil Code which states that a widow (surviving spouse) is an intestate
heir of her mother-in-law.
Intestate or legal heirs are classified into two (2) groups, namely, those who:
1. Inherit by their right, and
2. Inherit by the right of representation
Re- stated, an intestate heir can only inherit either by his own right, as in the order of intestate succession
provided for in the Civil Case, or by the right of representation provided for in Article 981
The entire Code is devoid of any provision which entitles her to inherit from her mother-in-law either by her
right or by the right of representation.
The provisions of the Code which relate to the order of intestate succession (Articles 978 to 1014)
enumerate with meticulous exactitude the intestate heirs of a decedent, with the State as the final intestate
heir. The conspicuous absence of a provision which makes a daughter-in-law an intestate heir of the
deceased all the more confirms our observation. If the legislature intended to make the surviving spouse
an intestate heir of the parent-in-law, it would have so provided in the Code.
Rules pertaining to the Right of the Surviving Spouse to Succeed
a. There must be a VALID marriage or at least, a voidable marriage
The marriage must NOT have been judicially declared void ab initio or annulled by final decree at the time of
the death of the decedent
If the marriage is void ab initio or there is valid ground for annulment, but there is NO judicial declaration to
this effect, there being no action instituted yet or the action was pending, when the decedent died, can the
heirs later attack the validity of the marriage (either by direct or indirect attack), or continue the action
pending?
In annulment, the heirs cannot attack the marriage since collateral attack is not allowed in voidable
marriages.
In nullity, direct attack is allowed only in the lifetime of the spouses, collateral attack is allowed though
Check this, this is only what I remembered in Persons nung 1st year
CARINO VS. CARINO (351 SCRA 127 [2001])
Under article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.

Meaning, where the absolute nullity of a previous marriage is sought to be invoked for purposes of
contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free
from legal infirmity, is a final judgment declaring the previous marriage void.
However, for purposes other than remarriage, NO judicial action is necessary to declare a marriage an
absolute nullity (judicial declaration NOT required). For other purposes, such as but not limited to the
determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of
property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even
after the death of the parties thereto, and even in a suit not directly instituted to question the validity of
said marriage (Indirect Attack), so long as it is essential to the determination of the case.
b. A final decree of legal separation should NOT have been issued
Effect of decree of legal separation: Offending spouse is disqualified from inheriting from the innocent
spouse
BALANE: This is a punitive effect of a decree of legal separation, against the offending spouse.
Death of either spouse during the pendency of a petition for legal separation dismissal of the case, the
offending spouse will inherit in this case.
BALANE: It doesnt matter who dies before the decree of legal separation is issued (during the pendency),
the spouses are capacitated to succeed each other in this case, as the legal separation proceedings
cannot continue (under the family code). The action cannot continue just to adjudicate the incidental
effects of legal separation
LAPUZ VS. EUFEMIO 43 SCRA 177 (1972)
The wife (Carmen Lapuz Sy) filed a petition for legal separation against the husband (Eufemio Eufemio)

based on the abandonment by the latter, and that the fact that he was cohabiting with another chinese
woman. Before, the trial could be completed, the wife died due to a vehicular accident. Thus, the husband
moved for the dismissal of the legal separation proceedings, this was granted by the lower court.
Issue was, does the death of the plaintiff before final decree, in an action for legal separation, abate the
action? If it does, will abatement also apply if the action involves property rights?
Court held that the death of EITHER spouse abates the action because an action for legal
separation is purely personal.
An action for legal separation which involves nothing more than the bed-and-board separation of the
spouses (there being no absolute divorce in this jurisdiction) is purely personal.
The Civil Code recognizes this in its Article 100, by allowing only the innocent spouse (and no one else)
to claim legal separation; and in its Article 108, by providing that the spouses can, by their reconciliation,
stop or abate the proceedings and even rescind a decree of legal separation already rendered.
Being personal in character, it follows that the death of one party to the action causes the death of the
action itself
A review of the resulting changes in property relations between spouses shows that they are solely the
effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it occurs
prior to the decree.
Art. 106. The decree of legal separation shall have the following effects: (4) The offending spouse shall
be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in
favor of the offending spouse made in the will of the innocent one shall be revoked by operation of law.
From this article it is apparent that the disqualification of the offending spouse to inherit by intestacy
from the innocent spouse as well as the revocation of testamentary provisions in favor of the offending
spouse made by the innocent one, are all rights and disabilities that, by the very terms of the Civil Code
article, are vested exclusively in the persons of the spouses; and by their nature and intent, such claims
and disabilities are difficult to conceive as assignable or transmissible.
A further reason why an action for legal separation is abated by the death of the plaintiff, even if property
rights are Involved, is that these rights are mere effects of a decree of separation, their source being the
decree itself; without the decree such rights do not come into existence, so that before the finality of a
decree, these claims are merely rights in expectation. If death supervenes during the pendency of the
action, no decree can be forthcoming, death producing a more radical and definitive separation; and the
expected consequential rights and claims would necessarily remain unborn.
Note that this case pertained to legal separation under the Civil Code, but the rule is the same under the
Family Code
But note that If after the final decree of legal separation there was a reconciliation between the spouses,
the reciprocal right to succeed is restored (because reconciliation sets aside the final decree) (Article 66,
par. 2, Family Code).

c. Spouse in a terminated subsequent marriage must NOT be in bad faith in contracting such subsequent
marriage
This pertains to a case of subsequent marriage contracted by a party whose spouse has been absent for the
specified period and then the subsequent termination of such subsequent marriage by reappearance of prior
the spouse (Articles 41-43 of the Family Code)
Note that the reappearance of the prior spouse terminates the second marriage.
One of the effects of such termination is that the spouse who contracted the subsequent marriage in bad
faith (had knowledge that the absent spouse was still living) shall be disqualified to inherit from the innocent
spouse by testate and intestate succession
The clear implication of this article is that (1) if both consorts in the second marriage were in good faith, they
continue to be heirs of each other, and (2) if only one of said consorts acted in bad faith, the innocent one
will continue to be an heir of the other.
d. Mere estrangement is not a ground for the disqualification of the surviving spouse as heir.
6. ILLEGITIMATE CHILDREN
The Family Code has abolished the distinction between natural and spurious children and gives all of them
indiscriminately called illegitimate children simplyequal legitimary portions (Article 176, Family Code).
However, pursuant to Article 777, if death occurred before the effectivity of the Family Code on 3 August 1988,
the old distinctions will apply and the spurious child gets only 4/5 the share of the natural (Article 895).
Children conceived AND born outside a valid marriage are illegitimate, unless otherwise provided (Art. 165, Family
Code)
EXCEPT, the following are legitimate:
a. Those legitimated
b. Born into a voidable marriage, before the final decree of annulment
c. Born into a void marriage under Art. 36 or Art. 52/53, before the final judicial declaration of nullity
d. Adopted children
7. ILLEGITIMATE DESCENDANTS
The same rule applies here as in the legitimate descending line: the nearer exclude the more remote, without
prejudice to representation when proper.
Note that the illegitimate child can be represented by both legitimate and illegitimate descendants, as distinguished
from the legitimate child, who can be represented only by legitimate descendants.
8. ILLEGITIMATE PARENTS
Unlike the legitimate ascending line, which includes ascendants of whatever degree, the illegitimate ascending line
includes only parents; it does not go beyond the parents.
Note that the illegitimate parents are secondary heirs of a lower category than legitimate parents, because the
illegitimate parents are excluded by legitimate and illegitimate children (Article 903) whereas legitimate parents are
excluded only by legitimate children/descendants.
LEGITIMARY PORTIONS AND COMBINATIONS
VARIATIONS IN THE LEGITIMARY PORTIONS

The legitimary system of the Philippine Code rests on a double foundation: exclusion and concurrence.
Consequently, the variations of the portions assigned as legitime can be bewildering, depending as they do on the
given combination.
But generally, there is a basic quota of one-half (1/2) that is given to one heir or one group of heirs.
EXCEPTION:
1. Surviving spouse and illegitimate children (Art. 894)
2. Surviving spouse in a marriage in articulo mortis, with the conditions specified in that article (Art. 900, par. 2)
3. Surviving spouse and illegitimate parents (Art. 903)

Summary of the Legitimary Combinations
Heirs Legitime Basis
1. Legitimate Children Art. 888
2. Surviving Spouse Art. 900

1/2 of the estate
3. Legitimate Parents *But, 1/3 only in the case of a surviving spouse and the marriage, being in Art. 889
articulo mortis falling under Art. 900, par. 2
4. Illegitimate Children Art. 901
5. Illegitimate Parents Art. 903
6. One Legitimate Child a. Legitimate Child: 1/2 of the estate Art. 892, par. 1
and Surviving Spouse
b. Surviving Spouse: 1/4 of the estate
7. Legitimate Children a. Legitimate Children: 1/2 of the estate Art. 892, par. 2
b. Surviving Spouse: Share equal to that of one child
8. Legitimate Children a. Legitimate Children: 1/2 of the estate Art. 176, Family Code
and Illegitimate Children
b. Illegitimate Children: Each will get 1/2 of share of one legitimate child
9. Legitimate Child, a. Legitimate Child: 1/2 of the estate Art. 895

Illegitimate Children, and
Surviving spouse b. Illegitimate Children: Each will get 1/2 of share of one legitimate child
c. Surviving Spouse: 1/4 of the estate
10. Legitimate Children, a. Legitimate Children: 1/2 of the estate Art. 895
Surviving Spouse b. Illegitimate Children: Each will get 1/2 of share of one legitimate child
c. Surviving Spouse: Share equal to that of one legitimate child
11. Legitimate Parents a. Legitimate Parents: 1/2 of the estate Art. 896
b. Illegitimate Children: 1/4 of the estate
12. Legitimate Parents a. Legitimate Parents: 1/2 of the estate Art. 893
b. Surviving Spouse: 1/4 of the estate
13. Legitimate Parents, a. Legitimate Parents: 1/2 of the estate Art. 899
Surviving Spouse b. Illegitimate Children: 1/4 of the estate
c. Surviving Spouse: 1/8 of the estate
14. Surviving Spouse a. Surviving Spouse: 1/3 of the estate Art. 894
b. Illegitimate Children: 1/3 of the estate
15. Surviving Spouse a. Surviving Spouse: 1/4 of the estate Art. 903
and Illegitimate Parents
b. Illegitimate Parents: 1/4 of the estate

LEGITIME OF LEGITIMATE CHILDREN AND DESCENDANTS
Article 888. The legitime of legitimate children and descendants consists of one-half of the hereditary estate of
the father and of the mother.
The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided. (808a)
RULES FOR THE LEGITIME OF THE LEGITIMATE CHILDREN/DESCENDANTS

1. THE LEGITIME OF LEGITIMATE CHILDREN AND DESCENDANTS COLLECTIVELY IS 1/2 OF THE HEREDITARY ESTATE
This is always the case, regardless if there is a surviving spouse, or there are illegitimate children
2. EQUAL SHARING
The legitimate children share the one-half in equal parts, regardless of age, sex, or marriage of origin.
BALANE: The provision should have been explicit about this, rather than leaving it to implication and assumption.
The counterpart provision in intestacy is quite explicit on this. Before, only men inherit, particularly the eldest child,
women cannot inherit. This is the principle of primogeniture as prevalent in medieval europe where the firstborn
male inherits the family estate.
3. THE NEARER EXCLUDE THE MORE REMOTE, QUALIFIED BY REPRESENTATION, WHEN PROPER
The general rule is that the nearer exclude the more remote.
Hence, grandchildren cannot inherit, since the children will bar them, unless all the children renounce, in which
case the grandchildren become the nearest in degree.
The rule goes on down the line; great-grandchildren cannot inherit unless all the children and grandchildren
renounce.
The only qualification to the rule that the nearer exclude the more remote in the descending line is representation
when proper (Art. 970-977)
BALANE: Remember that there is no representation in renouncement, the grandchildren cannot inherit when their
parents (the children of the decedent), merely renounce, unless ALL the children renounce, in which case the
grandchildren inherit in their own right, not by representation
4. THERE IS NO LIMIT TO THE NUMBER OF DEGREES IN THE DESCENDING LINE THAT MAY BE CALLED TO SUCCEED,
WHETHER IN THEIR OWN RIGHT OR BY REPRESENTATION.
LEGITIME OF LEGITIMATE PARENTS AND ASCENDANTS
Article 889. The legitime of legitimate parents or ascendants consists of one-half of the hereditary estates of
their children and descendants.
The children or descendants may freely dispose of the other half, subject to the rights of illegitimate children
and of the surviving spouse as hereinafter provided. (809a)
Article 890. The legitime reserved for the legitimate parents shall be divided between them equally; if one of
the parents should have died, the whole shall pass to the survivor.
If the testator leaves neither father nor mother, but is survived by ascendants of equal degree of the paternal
and maternal lines, the legitime shall be divided equally between both lines. If the ascendants should be of
different degrees, it shall pertain entirely to the ones nearest in degree of either line. (810)
RULES FOR THE LEGITIME OF THE LEGITIMATE PARENTS/ASCENDANTS

1. THE LEGITIME OF LEGITIMATE PARENTS AND ASCENDANTS CONSISTS IS 1/2 OF THE HEREDITARY ESTATE
This is always the case, regardless if there is a surviving spouse, or there are illegitimate children
2. THE LEGITIMATE ASCENDING LINE SUCCEEDS ONLY IN DEFAULT OF THE LEGITIMATE DESCENDING LINE

The Legitimate parents/ascendants are secondary compulsory heirs, they will succeed in default of legitimate
children/descendants.
Note that can only be disqualified by legitimate children/descendants. Even if the decedent has a surviving
spouse and/or illegitimate children/descendants, they are still compulsory heirs.
3. THE NEARER EXCLUDE THE MORE REMOTE, WITH NO QUALIFICATION
This rule in the ascending line admits no qualification, since there is no representation in the ascending line
4. DIVISION BY LINE AND EQUAL DIVISION WITHIN THE LINE.
This rule will apply if there are more than one ascendant in the nearest degree.
The legitime shall then be divided in equal parts between the paternal line and the maternal line.
After the portion corresponding to the line has been assigned, there will be equal apportionment between or among
the recipients within the line, should there be more than one.
Example: Should X (the decedent) die without legitimate descendants and be survived by three grandparents as
his nearest ascendantsA and B (paternal grandparents) and C (maternal grandmother-the legitime of 1/2 will be
divided equally between the paternal and the maternal line (Rule B, supra). Since there are two heirs in the paternal
line, the paternal line portion will be shared equally by the two; and since there is only one in the maternal line, she
gets the entire allotment for the maternal line.
Result: A and B get 1/8 each of the estate; C gets 1/4 of the estate.
LEGITIME OF LEGITIMATE CHILDREN/DESCENDANTS AND THE SURVIVING SPOUSE
Article 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be
entitled to one- fourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit
if it was the deceased who had given cause for the same.
If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion
equal to the legitime of each of the legitimate children or descendants.
In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed
of by the testator. (834a)
Article 897. When the widow or widower survives with legitimate children or descendants, and acknowledged
natural children, or natural children by legal fiction, such surviving spouse shall be entitled to a portion equal
to the legitime of each of the legitimate children which must be taken from that part of the estate which the
testator can freely dispose of. (n)
RULES ON THE LEGITIME OF LEGITIMATE CHILDREN/DESCENDANTS AND THE SURVIVING SPOUSE

1. THE LEGITIME OF LEGITIMATE CHILDREN OR DESCENDANTS COLLECTIVELY IS 1/2 OF THE HEREDITARY ESTATE
2. SHARE OF THE SURVIVING SPOUSE DEPENDS ON THE NUMBER OF LEGITIMATE CHILDREN OR DESCENDANTS
a. Only one legitimate child or descendant: Spouse gets 1/4 of the hereditary estate
b. Two or more legitimate children or descendants: Spouse gets a portion equal to the legitime of each of the
legitimate children or descendants
As long as at least one of several children inherits in his own right, the determination of the share of the
surviving spouse presents no problem. It will always be the equivalent of one childs share.
BALANE: But, supposing all the children predecease (or are disinherited or unworthy to succeed), since all the
grandchildren would then inherit per stirpes (by representation), and therefore in different amounts, the practical
solution will still be to give the spouse the share that each child would have gotten if qualified. Supposing,
however, all the children renounce, the grandchildren would then inherit per capita, and therefore equally.
Should the spouses share still be computed on the basis of the childrens share had they accepted? If so, when
will the words or descendants in the second paragraph of this article ever be operative?
Imagine that this can be used by the legitimate descendants to cheat the surviving spouse into receiving less
legitime, for example the decedent has 2 children but 16 grandchildren, the share of the surviving spouse is
1/4 (portion equivalent of one legitimate child), but if the children predecease, or are disinherited or
renounce, then the share of the surviving spouse is merely 1/32 (the share of each grandchild). The children,
if they are alive can collude to agree to renounce their share in order to deprive the surviving spouse of her
supposed legitime.

LEGITIME OF LEGITIMATE PARENTS/ASCENDANTS AND THE SURVIVING SPOUSE
Article 893. If the testator leaves no legitimate descendants, but leaves legitimate ascendants, the surviving
spouse shall have a right to one-fourth of the hereditary estate.
This fourth shall be taken from the free portion of the estate. (836a)
Legitimate ascendants/surviving spouseThe sharing is 1/2 for the ascendants collectively and 1 /4 for the surviving
spouse.
Remember that tor the parents or ascendants, the sharing will be in accordance with the rules laid down in Articles
889-890
LEGITIME OF ILLEGITIMATE CHILDREN AND THE SURVIVING SPOUSE
Article 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of the
hereditary estate of the deceased and the illegitimate children to another third. The remaining third shall be at
the free disposal of the testator. (n)
RULES ON THE LEGITIME OF ILLEGITIMATE CHILDREN/DESCENDANTS AND THE SURVIVING SPOUSE

1. THE SHARING IS 1/3 FOR THE ILLEGITIMATE CHILDREN OR DESCENDANTS COLLECTIVELY, AND 1/3 FOR THE
SURVIVING SPOUSE
2. SHARING AMONG ILLEGITIMATE CHILDREN DEPENDS IF THE DECEDENT DIED BEFORE OR DURING THE EFFECTIVITY OF
THE FAMILY CODE
If the decedent died during the effectivity of the Family Codethe sharing will be equal, inasmuch as the Family
Code has abolished the old distinction between natural and illegitimate other than natural (spurious) (Articles 163,
165, and 176, Family Code)
If the decedent died before the effectivity of the Family Code, the old distinction must be observed, and the legitime
of a spurious child will only be 4/5 that of a natural child, according to the ratio established in Article 895, par. 2.
This ratio of 5:4 among natural and spurious children should be observed in all cases under the Civil Code where
they concur.
LEGITIME OF LEGITIMATE AND ILLEGITIMATE CHILDREN/DESCENDANTS AND THE SURVIVING SPOUSE
Article 895. The legitime of each of the acknowledged natural children and each of the natural children by
legal fiction shall consistof one-half of the legitime of each of the legitimate children or descendants.
The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child by legal
fiction, shall be equal in every case to four-fifths of the legitime of an acknowledged natural child.
The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the
testator, provided that in no case shall the total legitime of such illegitimate children exceed that free portion,
and that the legitime of the surviving spouse must first be fully satisfied. (840a)
Article 898. If the widow or widower survives with legitimate children or descendants, and with illegitimate
children other than acknowledged natural, or natural children by legal fiction, the share of the surviving
spouse shall be the same as that provided in the preceding article. (n)
Art. 163 of the Family Code. The filiation of children may be by nature or by adoption. Natural filiation may be
legitimate or illegitimate. (n)

Art. 165 of the Family Code. Children conceived and born outside a valid marriage are illegitimate, unless
otherwise provided in this Code. (n)
Art. 176 of the Family Code. The legitime of each illegitimate child shall consist of one-half of the legitime of a
legitimate child. Except for this modification, all other provisions in the Civil Code governing successional
rights shall remain in force. (287a)
Art. 895 has been pro tanto amended by Articles 163, 165 and 176 of the Family Code.
RULES ON THE LEGITIME OF LEGITIMATE AND ILLEGITIMATE CHILDREN/DESCENDANTS

1. ONE LEGITIMATE CHILD, ILLEGITIMATE CHILDREN, AND SURVIVING SPOUSE
The sharing is 1/2 for the legitimate child, 1/4 for the surviving spouse, and 1/4 for each illegitimate child. (Art. 892
and 176 of the Family Code)
2. LEGITIMATE CHILDREN, ILLEGITIMATE CHILDREN, AND SURVIVING SPOUSE
The sharing is 1/2 for the legitimate children collectively, a share equal to that of one legitimate child for the
surviving spouse, and 1/2 the share of one legitimate child for each illegitimate child.
3. SHARING OF THE ILLEGITIMATE CHILDREN PRIOR TO FAMILY CODE (IF THE DECEDENT DIED PRIOR TO THE
EFFECTIVITY OF THE FAMILY CODE)
Art. 895 article will govern; consequently, should natural and spurious children concur in the succession, each
spurious child will get 4/5 the share of one natural child, and each natural child gets 1/2 the share of one legitimate
child.
Should there be no natural children but only spurious children, each spurious child will get 2/5 the share of one
legitimate child.
4. PRO-RATA REDUCTION OF SHARES OF THE ILLEGITIMATE CHILDREN, IN CASE THE TOTAL PORTIONS EXCEED THE
ENTIRE ESTATE
Depending on the number of legitimate and illegitimate children, the possibility exists that the total legitimes will
exceed the entire estate.
Reductions, therefore, will have to be made in accordance with the following rules:
a. The legitimes of the legitimate children should never be reduced; they are primary and preferred compulsory
heirs.
b. The legitime of the surviving spouse should never be reduced; this article prohibits this.
c. The legitimes of the illegitimate children will be reduced pro rata and without preference among them.
LEGITIME OF LEGITIMATE PARENTS AND ILLEGITIMATE CHILDREN/DESCENDANTS
Article 896. Illegitimate children who may survive with legitimate parents or ascendants of the deceased shall
be entitled to one- fourth of the hereditary estate to be taken from the portion at the free disposal of the
testator. (841a)
The sharing is 1/2 for the legitimate parents collectively and 1/4 for the illegitimate children collectively.
LEGITIME OF LEGITIMATE PARENTS, ILLEGITIMATE CHILDREN/DESCENDANTS, AND THE SURVIVING

SPOUSE
Article 899. When the widow or widower survives with legitimate parents or ascendants and with illegitimate
children, such surviving spouse shall be entitled to one-eighth of the hereditary estate of the deceased which
must be taken from the free portion, and the illegitimate children shall be entitled to one-fourth of the estate
which shall be taken also from the disposable portion. The testator may freely dispose of the remaining one-
eighth of the estate. (n)

The sharing is 1/2 for the legitimate parents collectively, 1/4 for the illegitimate children collectively, and 1/8 for the
surviving spouse.
LEGITIME OF THE SURVIVING SPOUSE (AS SOLE COMPULSORY HEIR)
Article 900. If the only survivor is the widow or widower, she or he shall be entitled to one-half of the
hereditary estate of the deceased spouse, and the testator may freely dispose of the other half. (837a)
If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the
testator died within three months from the time of the marriage, the legitime of the surviving spouse as the
sole heir shall be one-third of the hereditary estate, except when they have been living as husband and wife
for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the
preceding paragraph. (n)
RULES ON THE LEGITIME OF THE SURVIVING SPOUSE (AS SOLE COMPULSORY HEIR)
RULE: THE SURVIVING SPOUSE WILL GET 1/2 OF THE ESTATE, IF SHE IS THE SOLE COMPULSORY HEIR
EXCEPTION: IN CASE THE MARRIAGE CONTRACTED IN ARTICULO MORTIS (AT THE POINT OF DEATH) AND THE
FOLLOWING REQUISITES ARE PRESENT, THE SURVIVING SPOUSE WILL ONLY GET 1/3 OF THE ESTATE
1. The marriage was in articulo mortis;
2. The testator died within three months from the time of the marriage;
3. The parties did not cohabit for more than five years; and
4. The spouse who died was the party in articulo mortis at the time of the marriage
BALANE: The decedent must be the one in articulo mortis, it would be absurd if the decedent was the
healthy spouse. This is not provided in Art. 900 but is implied, obviously the law does not regard such
marriages with eager approbation.
LEGITIME OF ILLEGITIMATE CHILDREN/DESCENDANTS (AS SOLE COMPULSORY HEIRS)
Article 901. When the testator dies leaving illegitimate children and no other compulsory heirs, such
illegitimate children shall have a right to one-half of the hereditary estate of the deceased.
The other half shall be at the free disposal of the testator.
Article 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon their
death to their descendants, whether legitimate or illegitimate. (843a)
RULES ON THE LEGITIME OF ILLEGITIMATE CHILDREN (AS SOLE COMPULSORY HEIRS)

1. ILLEGITIMATE CHILDREN ALONETHEY GET 1/2 OF THE ESTATE COLLECTIVELY.
But remember that the sharing among the illegitimate children or descendants will depend on whether death
occurred before or during the effectivity of the Family Code
2. ILLEGITIMATE CHILDREN CAN BE REPRESENTED BY EITHER LEGITIMATE AND ILLEGITIMATE DESCENDANTS
This is granted by Art. 892
The rule is different in case of representation of legitimate children.
In the case of descendants of legitimate children, the right of representation is given only to legitimate
descendants (not to illegitimate), by virtue of the provisions of Art. 992
BALANE: The net effect of all this is that the right of representation given to descendants of illegitimate children
is BROADER than the right of representation given to descendants of legitimate children. Thus, an illegitimate
child of a predeceased legitimate child cannot inherit by representation (Article 992), while an illegitimate child
of an illegitimate child can (Article 902). A classic instance of unintended consequence.
LEGITIME OF ILLEGITIMATE PARENTS AND SURVIVING SPOUSE

Article 903. The legitime of the parents who have an illegitimate child, when such child leaves neither
legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of the hereditary estate of
such illegitimate child. If only legitimate or illegitimate children are left, the parents are not entitled to any
legitime whatsoever. If only the widow or widower survives with parents of the illegitimate child, the legitime
of the parents is one-fourth of the hereditary estate of the child, and that of the surviving spouse also one-
fourth of the estate. (n)
RULES ON THE LEGITIME OF ILLEGITIMATE PARENTS (AS SOLE COMPULSORY HEIRS) OR WITH SURVIVING SPOUSE
1. LLEGITIMATE PARENTS ALONETHEY GET 1/2 OF THE ESTATE.
Note that in the illegitimate ascending line, the right does NOT go beyond the parents (illegitimate ascendants are
not compulsory heirs)
2. ILLEGITIMATE PARENTS/SURVIVING SPOUSETHE SHARING IS 1 /4 FOR THE PARENTS COLLECTIVELY AND 1 /4 FOR
THE SPOUSE.
3. ILLEGITIMATE PARENTS EXCLUDED BY ALL KINDS OF CHILDREN
As secondary compulsory heirs, the illegitimate parents are inferior to legitimate parents.
Whereas legitimate parents are excluded only by legitimate children, illegitimate parents are excluded by all
kinds of children, legitimate or illegitimate.
RESERVA TRONCAL
Article 891. The ascendant who inherits from his descendant any property which the latter may have acquired
by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of relatives who are within the third degree and who
belong to the line from which said property came. (871)
ORIGIN AND HISTORY

The reserva troncal in its present form made its first appearance only in the Spanish Civil Code of 1889, though
prototypes existed in earlier general and foral law of Spain. The reserva troncal was found in Article 811 of the Spanish
Code.
The Spanish Code contained two reservas: the viudal (also called the ordinaria because it was the older reserva) and
the troncal (also called the extraordinaria because it was a more recent addition). More, there was a reversion (the
legal) in the same Code. Add to that the reversion in adoption (the adoptiva) found in Sec. 1 of Act 3977 and
incorporated in the Rules of Court of 1940, and we had in our law just prior to the present Civil Code, two reservas and
two reversiones:
1. Reserva viudal (Article 968, Spanish Code)
2. Reserva troncal (Article 811, Spanish Code)
3. Reversion legal (Article 812, Spanish Code)
4. Reversion adoptiva (Act 3977 and incorporated in Rule 100, Section 5, Rules of Court of 1940)
Reserva: Property set aside for a group of people who are the relatives of the person from whom it came
Reversiones: Property goes back to the person from whom it came.
The draft Code submitted to Congress in 1948 had abolished all these four but the legislature decided to retain the
reserva troncal.
BALANE: All of the four were supposed to be abolished in the New Civil Code, but there was this congressman from
Romblon who pushed for the revival of the reserva troncal at the last minute.
Other terms used to refer to the reserva troncal: lineal, familiar, extraordmaria, semi-troncal, and the pseudo-troncal
PURPOSE
The purpose of the principle was to provide a means to bring back property back to within the family line from there it
came, which has left because of marriage.
It is marriage (of outside the line) that makes it possible for the property to drift away from the line where it came
It has its roots in medieval and feudal times which was incorporated in the Philippines by the Spaniards.

The reserva troncal is a special rule designed primarily to assure the return of the reservable property to the third
degree relatives belonging to the line from which the property originally came, and to avoid its being dissipated by the
relatives of the inheriting ascendant
The purpose is also to avoid the danger that property existing for many years in a familys patrimony might pass
gratuitously to outsiders through the accident of marriage and untimely death.
It is to prevent outsiders from acquiring, through an accident of life, property which, but for such accident, would
have remained in the family.
BALANE: Ones interpretation on the purpose of the reserva has consequences (as will be discussed later) on the
interpretation of issues pertaining to it. These two view have different consequences in several debatable issues.
MANRESA: Purpose of the reserva is BOTH curative and preventive. To bring back property to the line from where
it came or to prevent the property from leaving the line from where it came
JBL REYES: Purpose of the reserve is PURELY curative.
APPLICABILITY OF ART. 891; REQUISITES OF THE RESERVA TRONCAL

All relationships involved here must be LEGITIMATE (Nieva vs Alcala 1920)
The following requisites must be present in order for Art. 891 to apply:
1. THAT THE PROPERTY WAS ACQUIRED BY A PERSON FROM AN ASCENDANT OR FROM A BROTHER OR SISTER BY
GRATUITOUS TITLE
The person receiving (by donation or succession) need not necessarily be a descendant, since the grantor is not
necessarily an ascendant, he may be a sibling
Acquisition should be by gratuitous title when the recipient does not give anything in return.
It encompasses transmissions by donation (pure or simple, not onerous) or by succession (of whatever
kind).
2. THAT SAID DESCENDANT DIED WITHOUT LEGITIMATE ISSUE
Without legitimate issue means, such descendant dies without legitimate children.
Note that only legitimate descendants will prevent the property from being inherited by the legitimate
ascending line by operation of law. Thus, the said descendant, may have a child, an illegitimate one, and the
ascendants can still inherit by operation of law
3. THAT THE PROPERTY IS INHERITED BY ANOTHER ASCENDANT BY OPERATION OF LAW; AND
Transmission by operation of law is limited to succession, either by:
a. Compulsory Succession (to the legitime)
b. Intestate Succession
BUT NOT testamentary succession or donation
The ascendant here must be another/other ascendant, other than the origin.
What are the cases where the other ascendant will inherit by operation of law, from his descendant?
a. Descendant has NO legitimate children/descendants
This covers cases where the descendant has a surviving spouse and/or illegitimate children/descendants
(because in these cases, the ascendant is still entitled to a legitime because only legitimate descendants
will prevent the property from being inherited by the legitimate ascending line by operation of law. )
b. Descendants legitimate children/descendant ALL renounce or are incapacitated to inherit
Even if the descendant has legitimate children, but they all renounce or are incapacitated to inherit, the
property will pass to the ascendant, thus reserva troncal can still apply.
4. THAT THERE ARE RELATIVES WITHIN THE THIRD DEGREE BELONGING TO THE LINE FROM WHICH SAID PROPERTY
CAME
These are the reservatarios or reservees, the relatives in whose favour the reserva troncal operates (as will be
discussed later)
RULE IN ART. 891; RESERVATION IN FAVOR OF RELATIVES

RULE: ART. 891 IMPOSES AN OBLIGATION ON THE PART OF THE ASCENDANT (THE RESERVISTA OR RESERVOR), WHO
INHERITS FROM HIS DESCENDANT ANY PROPERTY WHICH THE LATTER MAY HAVE ACQUIRED BY GRATUITOUS TITLE AND
BY OPERATION OF LAW, FROM ANOTHER ASCENDANT, OR A BROTHER OR SISTER, TO RESERVE SUCH PROPERTY
Reservation of the property is required so that upon the death of such ascendant, it will be given to the relatives
who are within the third degree and who belong to the line from which said property came (the reservatarios or
reservees)

PROCESS INVOLVED IN THE RESERVA TRONCAL

Under the requisites and rule, the subject-property involved in the reserva troncal undergoes a process of
three transmissions or transfers:
1. First transferby gratuitous title, from a person to his descendant, brother or sister.
2. Second transferby operation of law, from the transferee in the first transfer to another ascendant. (It is this
second transfer that creates the reserva)
3. Third transferfrom the transferee in the second transfer to the relatives (reservatarios)
SOLIVIO VS. COURT OF APPEALS 182 SCRA 119 (1990)
Subject properties involved here was owned by Salustia Solivio, a widower, who had a child, Esteban Javellana, Jr.
When the mother died, her only son inherited her properties consisting mostly of lands in Iloilo. The son later died a
bachelor, without descendants, brothers, sisters, nephews or nieces. His only relatives are his maternal aunt
Celedonia (half-sister of his mother) and Concordia (sister of his deceased father). During his lifetime, Esteban, Jr.
had, more than once, expressed to his aunt Celedonia and some close friends his plan to place his estate in a
foundation to honor his mother and to help poor but deserving students obtain a college education. Unfortunately,
he died of heart attack before he could set up such foundation. Two weeks after his funeral, Concordia and
Celedonia talked about what to do with Estebans properties. Celedonia told Concordia about Estebans desire to
place his estate in a foundation to be named after his mother, from whom his properties came, for the purpose of
helping indigent students in their schooling. Concordia agreed to carry out the plan of the deceased. Pursuant to
their agreement that Celedonia would take care of the proceedings leading to the formation of the foundation, she
was declared the sole heir by the court. Thereafter, she sold properties of the estate to pay the taxes and other
obligations of the deceased and proceeded to set up the foundation. Concordia later filed a petition to also be
recognized as an heir of Esteban (maybe she changed her mind?). This was granted, the trial court ordered the
execution of its judgment pending appeal and required Celedonia to submit an inventory and accounting of the
estate. Caledonia refused, saying that the properties have been transferred to the foundation.
The issue was whether the decedents properties were subject to reserva troncal in favor of Celedonia, his relative
within the third degree on his mothers side from whom he had inherited them.
Court ruled that there reserve troncal does NOT apply in this case. It does not apply to property inherited by
a descendant from his ascendant
The property of the deceased, Esteban is not reservable property, for he was not an ascendant, but the
descendant of his mother, from whom he inherited the properties in question. Therefore, he did not hold his
inheritance subject to a reservation in favor of his aunt, Celedonia Solivio, who is his relative within the third
degree on his mothers side. The reserva troncal applies to properties inherited by an ascendant from a
descendant who inherited it from another ascendant or a brother or sister.
BALANE: In this case, there can be no reserva troncal as the second transmission was not from a descendant to an
ascendant, the properties passed to the persons aunts. The third requisite (that the property is inherited by another
ascendant by operation of law) is absent.
PARTIES INVOLVED IN A RESERVA TRONCAL

Before going into the parties, know these basic rules first:
a. NO INQUIRY IS TO BE MADE BEYOND THE ORIGIN/MEDIATE SOURCE
It does not matter who the owner of the property was before it was acquired by the Origin
b. ALL THE RELATIONSHIPS AMONG THE PARTIES MUST BE LEGITIMATE
The provisions of Art. 891 apply only to legitimate relatives, NOT to illegitimate relations (Nieva vs Alcala 1920)
1. ORIGIN OR MEDIATE SOURCE

The transferor in the first transfer
He is either any of the following, of the Prepositus:
a. Ascendant
May be of any degree of ascent
b. Sibling (brother or sister)
Must it be half-blood?
Debatable, but it seems the view of Manresa that reserva applies to BOTH full and half blood siblings is
better
MANRESA: It does not matter whether the fraternal relationship is of the full-or the half-blood. In either
case a reserva may arise. Since the law makes no distinction, we should not make one. Reserva is NOT

just preventive but curative, it should apply to both full and half-blood as to prevent the property form
leaving the line
JBL REYES: it must be half-blood, since if it is full-blood, there is no line, the line is both paternal and
maternal, the property does not leave the line in this case. The property must leave the line, for reserva
to apply, since the purpose of the reserva is to bring back property to the line from which it came, thus, if
the origin is a sibling, he or she must be of half-blood, for the property to leave the line. Reserva is
merely curative in nature.
2. PREPOSITUS
The first transferee, who is a descendant or brother/sister of the Origin
He is the descendant who received by gratuitous title and who later dies without issue, making his other ascendant
inherit by operation of law.
While the property is still with the Prepositus there is as yet no reserva. The reserva arises only upon the second
transfer (to the reservista).
Consequently, while the property is owned by the prepositus, he has all the rights of ownership over it and may
exercise such rights in order to prevent a reserva from arising. He can do this in several ways, such as:
a. By substituting or alienating the property;
b. By bequeathing or devising it either to the potential reservista or to third persons; or
c. By partitioning in such a way as to assign the property to parties other than the potential reservista
He is thus the arbiter of the reserva troncal
3. RESERVISTA (RESERVOR)
He is an ascendant of the Prepositus, of whatever degree, who inherits by operation of law property from his such
descendant
The Reservista must be an ascendant other than the Origin/Mediate Source (if the latter is also an ascendant, as
he could be a sibling)
The law is clear on this: it refers to the Origin/Mediate Source as another ascendant. If these two parties are
the same person, there would be no reserva troncal.
He is the ascendant obliged to reserve
Should the Origin/Mediate Source and the Reservista belong to different/opposite lines?
Debatable, but the better view is, NO, they need not belong to different lines, since the law does not distinguish.
MANRESA: No, reserva can apply regardless if they belong to same or opposite lines since the law does not
distinguish. The purpose of the reserva is not merely curative but also preventive.
JBL REYES: Yes, because if they belong in both lines, the property cannot leave the line, thus, there is no
reason for reserva to apply. Reserva is purely curative.
How can this happen in the first place? remember that the origin need not be the father or mother, of the
prepositus he just needs to be an ascendant (or a sibling) thus, he can be a grandfather or grandmother and
there could be mixing of lines
Example: A receives by donation a parcel of land from his paternal grandfather X. Upon As death, the parcel
passes by intestacy to his father Y (Xs son). The property never left the line. Is Y obliged to reserve?
The better view is, YES, he is still required to reserve because the law makes no distinction, and the
purpose of the reserva is not only curative, but also preventive, to prevent the property from leaving the line
This was touched on by the SC in Carrillo vs. De la Paz, 18 SCRA 467 [1966], where it held, in obiter, this
view.
4. RESERVATARIOS (RESERVEES)
They are the relatives benefited.
The reserva is in favor of a class, collectively referred to as the reservatarios (reservees).
Requirements to be a reservatario:
a. HE MUST BE WITHIN THE THIRD DEGREE (OF CONSANGUINITY) FROM THE PREPOSITUS
BALANE: The law does not say it is third degree from the prepositus, but this is the correct rule as supported
by all civilists unanimously
b. HE MUST BELONG TO THE LINE FROM WHICH THE PROPERTY CAME. (THIS IS DETERMINED BY THE ORIGIN/
MEDIATE SOURCE)
i. If origin is an ascendant
See whether such person is of the paternal or maternal line.
ii. If origin is a sibling
If a half-brother or half-sister, distinguish also whether of the paternal or maternal line.

If, however, it is a brother or sister of the full blood, it would not be possible to distinguish the lines. Thus,
in this case the question of which line is immaterial, all relatives within the third degree, irrespective of
lines is a reservatario (as supported by Manresa)
This is an exception to the general rule that the reservatario must belong to the line from which the
property came, in this case, the question of line is immaterial, those within the third degree from the
prepositus are all reservatarias (according to Manresa). But if you would follow JBL Reyes, there
would be no reserva, as the property never left the line in case of full-blood siblings.
c. HE MUST BE RELATED BY BLOOD TO THE ORIGIN OR MEDIATE SOURCE
This is implied. The reservatario must be related by blood to the origin (according to Sanchez-Roman)
Who are the possible relatives that can be reservatarios?

1. Brothers or sisters
2. Nephews or nieces
3. Uncles and aunts
4. Grandparents (if they are still living, and no legitimate descendants)
These are the only relatives within the third degree of the Prepositus
BALANE: If reserva troncal applies and the descendant (prepositus) has legitimate children, but they all
renounce or are incapacitated to inherit, such that the property will pass to the ascendant (reservista), are the
descendants who have renounced or are incapacitated inherit considered reservatarios? (note that they are
obviously relatives within the third degree from the prepositus) In other words, can the descendant son, or even
grandson of the prepositus, now become a reservatario in this case?
To be qualified as a reservatario, is it necessary that one must already be living when the Prepositus dies?
NO, they are not required to be alive when the prepositus dies BUT they must be living with the Reservista dies
BALANE:
NOT required, because as Manresa points out: The reserva is established in favor of a group or class:
the relatives within the third degree, not in favor of specific individuals. As long, therefore, as the
reservatario is alive at the time of the reservistas death, he qualifies as such, even if he was conceived
and born after the Prepositus death.
The reservatarios do not strictly succeed or inherit from the prepositus, it is a kind of delayed
succession. This is despite the fact that some cases say that the reservatarios inherits (the reserved
property) from the prepositus (not the reservista). They do not strictly inherit from the prepositus
because they are not required to be alive at the time the prepositus dies. The reservatarios do not inherit
from the prepositus directly because one requirement of the capacity to succeed is that the heir should
be alive when the decedent dies (Art. 1025). They are inheriting by virtue of the special rule of the
reserva troncal. The correct way to say it, is that the reservatarios as if or by analogy suceeds from
the prepositus like ordinary heirs.
Is there preference among reservatarios?
YES, rules on intestacy will apply. It is the rules of intestacy which chooses who the reservatarios are and how
transmission to them is governed
BALANE: According to the Padura case, in the reserva, it is as if the reservatarios inherit from the prepositus
by intestacy, thus, by analogy, the following principles apply to the reservatarios:
1. PROXIMITY IN DEGREE: Those reservatarios nearer in degree of relationship to the Prepositus will
exclude those more remotely related
2. RIGHT OF REPRESENTATION: Heirs of the reservatarios has the right of representation in the proper
cases
3. RULE ON DOUBLE SHARE: Those whole blood brothers and nephews are entitled to a share double that
of brothers and nephews of half blood.
PADURA VS. BALDOVINO GR NO. 11960, DECEMBER 27, 1958
The stated purpose of the reserva is accomplished once the property has devolved to the specified relatives
of the line of origin. But from this time on, there is no further occasion for its application.
In the relations between one reservatario and another of the same degree, there is no call for
applying Art. 891 any longer; wherefore, the respective share of each in the reversionary property
should be governed by the ordinary rules of intestate succession.
In this spirit the jurisprudence of this Court and that of Spain has resolved that upon the death of the
ascendant reservista, the reservable property should pass, not to all the reservatorios as a class, but only to
those nearest in degree to the descendant (prepositus), excluding those reservatarios of more remote

degree. And within the third degree of relationship from the descendant (prepositus), the right of
representation operates in favor of nephews
Proximity of degree and right of representation are basic principles of ordinary intestate succession;
so is the rule that whole blood brothers and nephews are entitled to a share double that of brothers
and nephews of half blood.
If in determining the rights of the reservatarios inter se, proximity of degree and the right of
representation of nephews are made to apply, the rule of double share for immediate collaterals, of the
whole blood should be likewise operative.
In other words, the reserva troncal merely determines the group of relatives (reservatarios) to whom
the property should be returned; but within that group the individual right to the property should be
decided by the applicable rules of ordinary intestate succession, since Art. 891 does not specify
otherwise.
This conclusion is strengthened by the circumstance that the reserva being an exceptional case, its
application should be limited to what is strictly needed to accomplish the purpose of the law.
The restrictive interpretation is the more imperative in view of the new Civil Codes hostility to successional
reservas and reversions, as exemplified by the suppression of the reserva viudal and the reversion legal of
the Code of 1889
Even during the reservistas lifetime, the reservatarios, who are the ultimate acquirers of the property, can
already assert the right to prevent the reservista from doing anything that might frustrate their reversionary
right; and for this purpose they can compel the annotation of their right in the Registry of Property even while
the reservista is alive. This right is incompatible with the mere expectancy that corresponds to the natural
heirs of the reservista. It is likewise clear that the reservable property is no part of the estate of the
reservista, who may not dispose of them by will, so long as there are reservatarios existing. The latter,
therefore, do not inherit from the reservista, but from the descendant prepositus, of whom the reservatarios
are the heirs mortis causa, subject of the condition that they must survive the reservista.
Had the nephews of whole and half-blood succeeded the prepositus directly, those of full-blood
would undoubtedly receive a double share compared to those of the half blood, why then should
the latter receive equal shares simply because the transmission of the property was delayed by
the interregnum of the reserva? The decedent (causante) the heirs and their relationship being the
same, there is no cogent reason why the hereditary portions should vary.
Is there representation among the reservatarios?
YES, as in intestate succession, the rule of preference of degree among reservatarios is qualified by the rule of
representation.
BALANE: Actually, there will be only one instance of representation among the reservatarios, a case of the
Prepositus being survived by brothers/sisters and children of a predeceased or incapacitated brother/sister.
FLORENTINO VS. FLORENTINO 40 PHIL. 480 (1919)
Property disputed in this case belonged to Apolonio II. He had 11 children, 9 from his first marriage and 2
from his second.The child with the second wife are Mercedes and Apolonio III. When Apolonio II died, his
estate was accordingly disposed of and distributed to his hers, some of which passed his son Apolonio III.
Apolonio later died, childless and single, thus his properties passed to his mother, Severina. When she died,
the properties passed to her daughter, Mercedes. Several children of Apolonio II (from his first marriage),
some in their own right, some by right of representation, filed an action to recover their share of the
properties from Mercedes, claiming the application of reserva troncal, they being the relatives within the third
degree of Apolonio III (their half-brother) from the line from which the property came (the reservatarios). The
TC dismissed the action, it said that reserva does not apply as the underlying purpose of the reserva of
preventing the subject property from falling into the hands of strangers had been avoided because it was
inherited by the sister of the decedent. It also said that to apply reserva tranquil would impair the legitimate
Mercedes is entitled to.
Issue was whether reserva troncal applies such that the plaintiffs are entitled to their share
Court held that reserva troncal applies and that the plaintiffs are entitled to their share as they are
relatives of the prepositus within the third degree. Some (3 plaintiffs) are his relatives within the third
degree in their own right and some (12 plaintiffs) are such by representation, all of them are
indisputably entitled as reservatarios to the property. The reservista, has no right to choose, which
of the reservatarios should inherit.
Following the order prescribed by law in legitimate succession, when there are relatives of the
descendant within the third degree, the right of the nearest relative, called reservatario, over the property
which the reservista (person holding it subject to reservation) should return to him, excludes that of the

one more remote. The right of representation cannot be alleged when the one claiming same as a
reservatario of the reservable property is not among the relatives within the third degree belonging to the
line from which such property came, inasmuch as the right granted by the Civil Code in Article 811 is in
the highest degree personal and for the exclusive benefit of designated persons who are the relatives,
within the third degree, of the person from whom the reservable property came. Therefore, relatives of
the fourth and the succeeding degrees can never be considered as reservatarios, since the law does not
recognize them as such.
In spite of what has been said relative to the right of representation on the part of one alleging his right
as reservatario, who is not within the third degree of relationship, nevertheless there is right of
representation on the part of reservatarios who are within the third degree mentioned by law, as
in the case of nephews of the deceased person from whom the reservable property came. These
reservatarios have the right to represent their ascendants (fathers and mothers) who are the
brothers of the said deceased person and relatives within the third degree in accordance with
Article 811 of the Civil Code.
According to the provisions of law, ascendants do not inherit the reservable property, but its enjoyment,
use or trust, merely for the reason that said law imposes the obligation to reserve and preserve same for
certain designated persons who, on the death of the said ascendants-reservists, (taking into
consideration the nature of the line from which such property came) acquire the ownership of said
property in fact and by operation of law in the same manner as forced heirs (because they are also such)
said property reverts to said line as long as the aforementioned persons who, from the death of the
ascendant-reservists, acquire in fact the right of reservatarios (persons for whom property is reserved),
and are relatives, within the third degree, of the descendant from whom the reservable property came.
Any ascendant who inherits from his descendant any properly, while there are living, within the third
degree, relatives of the latter, is nothing but a life usufructuary or a fiduciary of the reservable property
received. He is, however, the legitimate owner of his own property which is not reservable property and
which constitutes his legitime, according to Article 809 of the Civil Code. But if, afterwards, all of the
relatives, within the third degree, of the descendant (from whom came the reservable property) die or
disappear, the said property becomes free property, by operation of law, and is thereby converted into
the legitime of the ascendant heir who can transmit it at his death to his legitimate successors or
testamentary heirs. This property has now lost its nature of reservable property, pertaining thereto at the
death of the relatives, called reservatarios, who belonged within the third degree to the line from which
such property came.
Reservable property neither comes, nor falls under, the absolute dominion of the ascendant who
inherits and receives same from his descendant, therefore it does not form part of his own property
nor become the legitime of his forced heirs. It becomes his own property only in case that all the
relatives of his own descendant shall have died (reservista), in which case said reservable property
losses such character.
While it is true that by giving the reservable property to only one reservee it did not pass into the
hands of strangers, nevertheless, it is likewise true that the heiress of the reservor was only one
of the reservees and there is no reason founded upon law and justice why the other reservees
should be deprived of their shares in the reservable property
JURIDICAL NATURE OF THE RESERVA TRONCAL

BALANE: Commentators have differing opinions as to the nature of the reserva troncal, some say it is a trust, some say
it is a usufruct, some say it is a kind of possession. Several cases tell us its juridical nature, The juridical nature of
reserva troncal may be viewed from two aspectsfrom that of the reservista and that of the reservatarios.
1. NATURE OF THE RESERVISTAS RIGHT
EDROSO VS. SABLAN 25 PHIL. 295 (1913)
Subject-properties belonged to Victoriano Sablan. Upon his death, its was properly divided between his heirs,
one of which was his son, Pedro. When Pedro died, childless and unmarried, his properties passed to his
mother Marcelina (Victorianos wife). Marcella wanted to register the properties she inherited from her son, as
her own, but the TC denied. It held that consent of the reservatarios is necessary before it could be validly
registered in her name, as the reservista, it must be registered in their names jointly.
Issue in this case asks the question, what are the rights of the reservista in the reserved property?
Court held that the reservista absolute ownership over the reserved property (right to use, enjoy,
dispose and recover it). But such right is subject to a resolutory condition that, in the event, that such

reservista dies, and there are still reservatarios who are still living, then the properies would be given to
them
There are not lacking writers who say, only those of a usufructuary, the ultimate title belonging to the
persons in whose favor the reservation is made. If that were so, the person holding the property could not
apply for registration of title, but the person In whose favor it must be reserved, with the formers consent.
This opinion does NOT seem to be admissible
The ascendant who inherits from a descendant, whether by the latter's wish or by operation of law, acquires
the inheritance by virtue of a title perfectly transferring absolute ownership. All the attributes of the
right of ownership belong to him exclusivelyuse, enjoyment, disposal and recovery.
This absolute ownership which is inherent in the hereditary title, is not altered in the least, if there be no
relatives within the third degree in the line whence the property proceeds or they die before the ascendant
heir who is the possessor and absolute owner of the property.
If there should be relatives within the third degree who belong to the line whence the property proceeded,
then a limitation to that absolute ownership would arise. The nature and scope of this limitation must be
determined with exactness in order not to vitiate rights that the law wishes to be effective.
The opinion which makes this limitation consist in reducing the ascendant heir to the condition of a mere
usufructuary, depriving him of the right of disposal and recovery, does not seem to have support in the law,
as it does have, according to the opinion that has been expressed in speaking of the rights of the father or
mother who has married again.
The conclusion is that the person required by Article 811 to reserve the right has, beyond any doubt
at all, the rights of use and usufruct. He has, moreover, for the reasons set forth, the legal title and
do-minion, although under a condition subsequent (resolutory condition).
Clearly he has, under an express provision of the law, the right to dispose of the property reserved, and
to dispose of is to alienate, although under a condition.
He has the right to recover it, because he is the one who possesses or should possess it and have tide
to it, although a limited and revocable one.
In a word, the legal title and dominion, even though under a condition, reside in him while he lives. After
the right required by law to be reserved has been assured, he can do anything that a genuine owner can
do.
On the other hand, the relatives within the third degree in whose favor the right is reserved (the
reservatarios) cannot dispose of the property, first because it is in no way, either actually,
constructively or formally, in their possession; and, moreover, because they have no title of
ownership or of fee simple which they can transmit to another, on the hypothesis that only when the
person who must reserve the right should die before them will they take their place in the succession of the
descendant of whom they are relatives within the third degree, that is to say, a second contingent place in
said legitimate succession in the fashion of aspirants to a possible future legacy.
If any of the persons in whose favor the right is reserved should, after their right has been assured in the
registry, dare to dispose of even nothing more than the fee simple of the property to be reserved his act
would be null and void, for, it is impossible to determine the part that might pertain therein to the relative
at the time he exercised the right, because in view of the nature and scope of the right required by law to
be reserved the extent of his right cannot be foreseen, for it may disappear by his dying before the
person required to reserve it, just as it may even become absolute should that person die.
No act of disposal inter vivos of the person required by law to reserve the right can be impugned by
him in whose favor it is reserved, because such person has all, absolutely all, the rights inherent in
ownership, except that the legal title is burdened with a condition that the third party acquirer may
ascertain from the registry in order to know that he is acquiring a title subject to a condition
subsequent.
In conclusion, it seems to us that only an act of disposal mortis causa in favor of persons other than
relatives within the third degree of the descendant from whom he got the property to be reserved must
be prohibited to him, because this alone has been the object of the law:
To prevent persons outside a family from securing, by some special accident of life, property that would
otherwise have remained therein.
Daming sinabe ng court dito, but note the following points:
1. The reservistas right over the reserved property is one of ownership (not of trust, usufruct or possession).
2. The ownership is subject to a resolutory condition, the existence of reservatarios at the time of the
reservistas death. (resolutory because the happening of the condition extinguishes the right)
3. The right of ownership is alienable, but subject to the same resolutory condition.

4. The reservistas right of ownership is registrable (if it is real property)
2. NATURE OF THE RESERVATARIOS RIGHT
SIENES VS. ESPARCIA 1 SCRA 750 (1961)
Subject-properties were owned by Saturnino. He had 5 children, 1 son (Francisco) with his second wife
(Andrea), the rest, with his first wife. When Saturnino died, his estate was accordingly inherited by his heirs.
Francisco later died, childless and unmarried, thus, his estate passed to his mother, Andrea. Before Andrea
died, she sold the subject-properties to third persons. The sons and daughters or Saturnino (Franciscos half-
siblings), who are the reservatarios, also sold the properties, before the death of Andrea.
Issue was the validity of the sales entered into by the reservista and the reservatarios.
Court held that both sales were valid but both were subject to conditions; a resolutory condition in the
case of the sale by the reservista and a suspensive condition in the case of the reservatarios
The reserva creates two resolutory conditions (against the reservista), namely:
1. The death of the ascendant obliged to reserve
2. The survival, at the time of his death, of relatives within the third degree belonging to the line from
which the property came
The reservista has the legal title and dominion to the reservable property but subject to a resolutory
condition; that he is like a life usufructuary of the reservable property but subject to the reservation, said
alienation transmitting only the revocable and conditional ownership of the reservista, the rights acquired by
the transferee being revoked or resolved by the survival of reservatarios at the time of the death of the
reservista
The sale made by Andrea in favor of third persons was, therefore, subject to the condition that the vendees
would definitely acquire ownership, by virtue of the alienation, only if the vendor died without being survived
by any person entitled to the reservable property. Inasmuch as when Andrea died, the reservatarios were
still alive, the conclusion becomes inescapable that the previous sale made by the former in favor of third
persons became of no legal effect and the reservable property subject matter thereof passed in exclusive
ownership to the reservatarios.
On the other hand, it is also clear that the sale executed by the reservatarios in favor of third persons was
subject to a similar resolutory condition (a suspensive condition, really). The reserva instituted by law in
favor of the heirs within the third degree belonging to the line from which the reservable property came,
constitutes a real right which the reservee may alienate and dispose of, albeit conditionally, the condition
being that the alienation shall transfer ownership to the vendee only if and when the reservee survives the
person obliged to reserve
In this case, one of the reservatarios, was still alive when Andrea, the person obliged to reserve, died. Thus
the former became the absolute owner of the reservable property upon Andreas death.
From Sienes, the following may be derived or implied:
1. The reservatarios have a right of expectancy over the property.
2. The right is subject to a suspensive condition, the expectancy ripens into ownership if the reservatarios
survive the reservista (it is suspensive because the happening of the condition creates or gives birth to the
right)
3. The right is alienable, but subject to the same suspensive condition (Note: Sienes erroneously refers to the
condition as resolutory).
4. The right is registrable (if it is real property), by annotation on the certificate title (remember that this is titled
in the name of the reservista, who has ownership of the reserved properties in the meantime)
GONZALES VS. CFI 104 SCRA 479 (1981)
Subject properties belonged to Benito Tuason. When he died, it was inherited by his heirs, his 3 children, one of
whom was Benito Legarda. When the the son later died, the properties went to the sons widow (Filomena
Roces) and children. Filomena Roces died, and the properties went to her mother, Filomena Legarda (I guess
her children had also died at this point). When Filamena Legarda died, the properties went to her grandchildren
by testamentary succession, she however, bypassed and excluded her own sons and daughters. One of the
children filed an action and sought to recover the properties based on the application of reserva troncal.
The issue was, whether the disputed properties are reservable properties under Article 891, and whether
Filomena Legarda could dispose of them in her will in favor of her grandchildren to the exclusion of her six
children.
In other words, whether Mrs. Legarda as reservor, could convey the reservable properties by will of mortis
causa to the reservees within the third degree (her sixteen grandchildren) to the exclusion of the reservees
in the second degree, her three daughters and three sons.

Court held that reserva troncal applies in this case as the requisites of Art. 891 are present. Mrs.
Legarda could NOT convey in her holographic will to her sixteen grandchildren the reservable properties
because the reservable properties did NOT form part of her estate. The reservor cannot make a
disposition mortis causa of the reservable properties as long as the reservees survived the reservor.
As repeatedly held in the Cano and Padura cases, the reservees inherit the reservable properties from the
prepositus, not from the reservor. The reservees are the heirs mortis causa subject to the condition that they
must survive the reservor
Article 891 clearly indicates that the reservable properties should be inherited by all the nearest relatives
within the third degree from the prepositus who in this case are the six children of Mrs. Legarda. She could
not select the reservees to whom the reservable property should be given and deprive the other
reservees of their share therein.
Because the Rules on Intestacy (particularly the rules of proximity of degree, the nearer exclude the
more remote) apply, once the application of the reserva troncal
To allow the reservor in this case to make a testamentary disposition of the reservable properties in favor of
the reservees in the third degree and, consequently, to ignore the reservees in the second degree would be
a glaring violation of Article 891. That testamentary disposition cannot be allowed.
Reservable property left, through a will or otherwise, by the death of ascendant (reservista) together with his
own property in favor of another of his descendants as forced heir, forms no part of the latters lawful
inheritance nor of the legitime, for the reason that, as said properly continued to be reservable, the heir
receiving the same as an inheritance from his ascendant has the strict obligation of its delivery to the
relatives, within the third degree, or the predecessor in interest (prepositus), without prejudicing the right of
the heir to an aliquot part of the property, if he has at the same time the right of a reservatario
BALANE:
The reservatarios do not really inherit from the prepositus, because they are not required to be alive
when the prepositus dies (note that this is a requirement in capacity to succeed in Art. 1025). They
only inherit from the prepositus in a manner of speaking. They really inherit by virtue of the special
rule of the reserva troncal.
The rule in this jurisdiction, therefore, is that, upon the reservistas death, the property passes by strict
operation of law (according to the rules of intestate succession, declared in the Padura case), to the proper
reservatarios. Thus, the selection of which reservatarios will get the property is made by law and not by the
reservista. The reservista has no power to appoint, by will, which reservatarios will get the reserved property
RULES REGARDING THE PROPERTY RESERVED

1. ANY KIND OF PROPERTY IS RESERVABLE, EVEN INCORPOREAL PROPERTY.
Provided that it can be identified
In one case, a sugar quota allotment (incorporeal property) was held to be reservable.
2. THE VERY SAME PROPERTY MUST GO THROUGH THE PROCESS OF TRANSMISSIONS IN ORDER FOR THE RESERVA TO
ARISE
Remember that there are 3 transmissions involved
The self-same property must come from the Mediate Source, to the Prepositus by gratuitous title, and to the
reservista by operation of law.
If the Prepositus substitutes the property by selling, bartering, or exchanging it, the substitute cannot be reserved.
Note that while the property is with the Prepositus, there is yet no reserva, which commences only when the
property is received by the reservista.
Consequently, the Prepositus has, over the property, plenary powers of ownership, and he may exercise these
powers to thwart a potential reserva.
Remember that the Prepositus is the arbiter of the reserva
3. THE RESERVED PROPERTY IS NOT PART OF THE RESERVISTAS ESTATE UPON HIS DEATH
Unless there are no reservatarios
CANO VS. DIRECTOR 105 PHIL. 1 (1959)
In this case, the prepositus and the reservista (Maria Cano) had already died. The reservatarios thus applied for
the issuance of a decree of registration of title in their favor. The heirs of the reservista opposed, claiming that
the subject-matter should be ventilated in an judicial admnistration proceeding and that the Registration Court
had no jurisdiction to grant the application. Such heirs were claiming that the rights of the reservatarios should
be declared in such contentious proceeding where the application of the reserva troncal should be duly proved.
The lower court granted the petition for the issuance of a new certificate, for the reason that the death of the
reservista vested the ownership of the property in the reservatarios as the sole reservatario troncal.

Court affirmed the decision of the lower court and held that a separate proceeding to determine the
existence of the reserva tranquil is NOT required, and may be established in the registration
proceedings. The reserved property is NOT part of the estate of the reservista, and does not even
answer for the debts of the latter. Hence, its acquisition by the reservatario may be entered in the
property records without necessity of estate proceedings, since the basic requisites therefor appear of
record. It is equally well settled that the reservable property can not be transmitted by a reservista to her
or his own successors mortis causa, so long as a reservatario within the third degree from the
prepositus and belonging to the line where the property came, is in existence when the reservista dies.
The requisites for the application of the reserva troncal have already been declared to exist by the decree of
registration wherein the rights of the reservatario troncal were expressly recognized
The contention that an intestacy proceeding is still necessary rests upon the assumption that the
reservatario will succeed in, or inherit, the reservable property from the reservista. This is not true.
The reservatario is not the reservista's successor mortis causa nor is the reservable property part of the
reservista's estate; the reservatario receives the property as a conditional heir of the descendant
(prepositus), said property merely reverting to the line of origin from which it had temporarily and
accidentally strayed during the reservistas lifetime.
The authorities are all agreed that there being reservatarios that survive the reservista the latter must be
deemed to have enjoyed no more than a life interest in the reservable property.
It is a consequence of these principles that upon the death of the reservista, the reservatario nearest to the
prepositus, becomes, automatically and by operation of law, the owner of the reservable property.
BALANE: The Cano ruling is perfectly consistent with the principle that the reserved property, upon the
reservistaa death, passes to the reservatarios by strict operation of law. It may be stated, relevantly, that as a
consequence of the rule laid down in Cano, since the reserved property is not computed as part of the
reservistas estate, it is not taken into account in determining the legitimes of the reservistas compulsory heirs.
It thus partakes the nature of an encumbrance or burden on the legitimate of the compulsory heirs of the
reservista (a burden imposed by law)
RESERVA-MAXIMA AND RESERVA MINIMA

A problem will arise these elements concur:
1. The Prepositus acquires property by gratuitous title from the origin or mediate source
2. The Prepositus has other properties of his own (which he did not acquire from the mediate source)
3. The Prepositus makes a will instituting the ascendant-reservista, as a compulsory heir, to a part of his
estate
4. There is a mixture of properties left in the Prepositus estate (from mediate source and those of his own),
which will pass to the ascendant-reservista by operation of law
Thus, the properties will pass to the reservista by will and by operation of law
Example:
The prepositus acquires P4 million from the mediate source. He also has properties of P6 million of his own. He
makes a will instituting his mother to 1/2 of his estate. His mother was the sole compulsory heir. Thus, the entire
estate of P10 million passes to his mother partly by will (P5 million) and party by operation of law through
compulsory and intestate succession (P5 million).
The problem is, how much is the reserved property? Note that only P5 million passes by operation of law and only
P4 million came from the mediate source
First, remember the following rules pertaining to the amount of reserved property passing to the reservista
1. It must come from the origin or mediate source
Thus, in the example above, only P4 million could possibly be the reserved property, it cannot be more than
that, since this is only the property that came from the mediate source
2. It must pass to the prepositus by operation of law (either through compulsory or intestate succession)
This is exactly the problem, what properties are deemed to have passed by operation of law? such that, it is
those properties that will comprise of the reservable estate. In other words, the issue is, how much of the
property (from the mediate source) passed by operation of law?
Two theories have been advanced (regarding which properties, coming from the mediate source, have passed
by operation of law):
1. RESERVA MAXIMA
As much of the potentially reservable property as possible must be deemed included in the part that
passes by operation of law.
This maximizes theories scope of the reserva.

In the example above, under the Reserva Maxima, the entire property which came from the mediate source (P4
million), which can fit into that property which passes by operation of law (P 5 million) is deemed as such, and
is considered reserved property. Thus, since the entire P4 million fits into the entire maximum property passing
by operation of law, such amount is considered the reserved property
Note that it is not necessarily true that entire property from the mediate source will be reservable, it will depend
on how much, as much as possible, passes by operation of law
Thus, in the example, if the prepositus instituted the reservista to 3/4 of his estate (instead of 1/2), then 7.5
million passes by will, and only 2.5 million passes by operation of law, then only 2.5 million, as the maximum
amount which can possible fit in the portion which passes by operation of law, will be the reserved
property.
2. RESERVA MINIMA
Every single property in the Prepositus estate must be deemed to pass, partly by will and partly by
operation of law, in the same proportion that the part given by will bears to the part not so given.
In the example above, under the Reserva Minima, the property coming from the mediate source should be
proportion in accordance with the will, in that if the testator provides that 1/2 of his estate goes to his mother,
then such proportion provided means that 1/2 of the property received from the mediate source passes by will,
only the other half passes by operation of law. Thus, only P2 million passes by operation of law, from the
property received from the mediate source, thus only such amount is reserved property.
In other words, the proportion provided by the testator, in the will, covers, not the entire estate in its
aggregate (this is reserva maxima), but it covers the properties from the mediate source and properties of
his own (not from the mediate source) SEPARATELY, such that part of the property from the mediate source
is deemed transferred by will, according to the proportion provided for.
Note that the proportion is not always 1/2, it would depend on what is provided for by the testator.
BALANE: Either view is defensible. The minima, however, finds wider acceptance here and in Spain. The minima is
less burdensome, we should follow that which is less burdensome. But according to Padilla, the maxima should prevail
since the reserva troncal is there to be given full effect.
RIGHTS AND OBLIGATIONS OF THE RESERVISTA AND RESERVATARIO

There is NO express provision of law defining the rights and obligations of the reservista and reservatario
Unlike the old reserva viudal, the reserva troncal does not have any implementing articles. This absence was solved
under the old Code simply by extending to the troncal the implementing provisions of the viudal.
Thus in several old cases under the old law, the rights of the reservatarios (and the corresponding obligations of the
reservista) were:
1. To inventory the reserved properties;
2. To annotate the reservable character (if registered immovables) in the Registry of Property within 90 days from
acceptance by the reservista;
3. To appraise the movables;
4. To secure by means of mortgage:
a. The indemnity for any deterioration of or damage to the property occasioned by the reservistas fault or
negligence, and
b. The payment of the value of such reserved movables as may have been alienated by the reservista
onerously or gratuitously.
BALANE: The abolition of the reserva viudal has caused some uncertainty whether these requirements still apply. The
case of Sumaya v. IAC, 201 SCRA 178 (1991), provides some help. It states that the requirement of annotation
remains, despite the abolition of the reserva viudal.
Sumaya: The jurisprudential rule requiring annotation in the Registry of Property of the right reserved In real
property subject of reserva viudal insofar as it is applied to reserva troncal stays despite the abolition of reserva
viudal in the New Civil Code
Sumaya, however, is silent on two points: 1) within what period must the annotation be made; and 2) whether the
other requirements of the old viudal also remain.
EXTINGUISHMENT OF THE RESERVA TRONCAL

The reserva troncal is extinguished by:
1. The death of the reservista,
If the reservista dies, then the reserved property now goes to the reservatarios
2. The death of all the reservatarios

BALANE: If one subscribes to the view that the reservista can belong to the line of origin, this will not ipso facto
extinguish the reserva because the reservista, could have a child subequently, who would be a reservatario.
3. Renunciation by all the reservatarios, provided that no other reservatario is born subsequently
This is a conditional extinguishment
4. Total fortuitous loss of the reserved property
It must be total and fortuitous, not partial, nor culpable or negligent.
5. Confusion or merger of rights
As when the reservatarios acquire the reservistas right by a contract inter vivos
6. Prescription or adverse possession.
When the reserved property is not registered
DECEDENT CANNOT DEPRIVE THE COMPULSORY HEIRS OF, OR BURDEN THE LEGITIME
Article 904. The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly
specified by law.
Neither can he impose upon the same any burden, encumbrance, condition, or substitution of any kind
whatsoever. (813a)
Article 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes
prescribed in this Code. Should he do so, the same shall be considered as not imposed.
Article 1080. A parent who, in the Interest of his or her family, desires to keep any agricultural, industrial, or
manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the
legitime of the other children to whom the property is not assigned, be paid in cash.
Article 1083. Every co-heir has a right to demand the division of the estate unless the testator should have ex-
pressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as
provided in Article 494. This power of the testator to prohibit division applies to the legitimate
Article 159 of the Family Code. The family home shall continue despite the death of one or both spouses or of
the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and
the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply
regardless of whoever owns the property or constituted the family home.
TESTATOR HAS NO POWER TO DEPRIVE THE COMPULSORY HEIRS OF THEIR LEGITIME

RULE: THE TESTATOR IS DEVOID OF POWER TO DEPRIVE COMPULSORY HEIRS OF LEGITIME
It is the law, not the testator, which determines the transmission of the legitimes.
The legitime is NOT within the testator's control. It passes to the compulsory heirs by strict operation of law.
This article reiterates this principle, as already embodied in Art. 886
EXCEPTION: WHEN THE TESTATOR DISINHERITS HIS COMPULSORY HEIRS
The only instance in which the law allows the testator to deprive the compulsory heirs of their legitimes is
disinheritance (Arts. 915-923), the grounds for which are set forth in Arts. 919- 921.
TESTATOR HAS NO POWER TO BURDEN THE LEGITIME

RULE: THE TESTATOR CANNOT IMPOSE ANY BURDEN, ENCUMBRANCE, CONDITION, OR SUBSTITUTION OF ANY KIND
WHATSOEVER, ON THE LEGITIME
This rule, first enunciated in Art. 872 and reiterated in the second paragraph of this Art. 904, is but a consequence
of the principle that the legitime passes by strict operation of law.
EXCEPTION: IN AT LEAST TWO INSTANCES, THE LAW GRANTS THE TESTATOR SOME POWER OVER THE LEGITIME,
OVER ITS FORM, NOT VALUE:
1. Testator can provide that it is to be paid in cash, if he is a parent who, in the interest of his or her family,
desires to keep any agricultural, industrial, or manufacturing enterprise intact (Art. 1080)

2. Testator can prove that the legitime cannot be partitioned or divided, for a maximum of 20 years (Art. 1083)
BALANE: In these two cases, the legitime is NOT impaired, it is merely subjected to a burden
LAW CAN SOMETIMES BURDEN THE LEGITIME

Restrictions on the legitime imposed by law:
1. Family home cannot be partitioned unless there are compelling reasons (Art. 159 of the Family Code)
BALANE: This is not an impairment of the legitime, merely a burden imposed by law
2. The reserva troncal (Art. 891)
BALANE: This is a case where the legitime can be impaired and it is provided for by law. The law itself has
provided for the legitime and it can take it away.
RENUNCIATION AND COMPROMISE OF FUTURE LEGITIME BETWEEN THE DECEDENT AND HIS
COMPULSORY HEIR
Article 905. Every renunciation or compromise as regards a future legitime between the person owing it and
his compulsory heirs is void, and the latter may claim the same upon the death of the former; but they must
bring to collation whatever they may have received by virtue of the renunciation or compromise. (816)
Art. 1347. No contract may be entered into upon future inheritance except in cases expressly authorized by
law
PROHIBITION ON RENUNCIATION OR COMPROMISE OF FUTURE LEGITIME

RULE: EVERY RENUNCIATION OR COMPROMISE AS REGARDS A FUTURE LEGITIME BETWEEN THE DECEDENT AND HIS
COMPULSORY HEIRS IS VOID AND SUCH HEIR MAY CLAIM THE SAME UPON THE DEATH OF THE FORMER
Before the predecessors death, the heirs right is simply inchoate (Art. 777).
Note that as worded, this article applies only to transactions of compromise or renunciation between the
predecessor and the prospective compulsory heir.
Is a transaction between the prospective compulsory heir and another prospective compulsory heir, or between a
prospective compulsory heir and a stranger, prohibited?
Yes, by Art. 1347. A contract involving future inheritance is void, regardless of who the parties are.
DUTY OF COLLATION
Any property which the compulsory heir may have gratuitously received from the decedent by virtue of the renunciation
or compromise must be brought to collation
This pertains to donations inter vivos
Such donation will considered an advance on his legitime and must be duly credited.
DETERMINATION OF THE NET HEREDITARY ESTATE
Article 908. To determine the legitime, the value of the property left at the death of the testator shall be
considered, deducting all debts and charges, which shall not include those imposed in the will.
To the net value of the hereditary estate, shall be added the value of all donations by the testator that are
subject to collation, at the time he made them. (818a)
BALANE: This is a very important provision, like Art. 777
IMPORTANCE OF ART. 908

Articles 888-903 set forth the legitimes of the compulsory heirs, either inheriting alone or in various combinations.
Those articles gave the legitimes in the form of fractions, or proportions, of the decedents estate.
Art. 908 makes possible the computation of the absolute amounts of the legitimes by laying down the manner of
computing the net value of the estate (the net hereditary estate), on which the proportions are based.

BALANE: Without Art. 908, you would not know the specific amounts each compulsory heir will get, while the previous
articles define their legitime, meaning the portion of the estate they are entitled to, such amount is based on the net
hereditary estate. You must first determine this amount, before you can get the specific amount of their legitime.
MANNER OF COMPUTING THE NET HEREDITARY ESTATE:

1. INVENTORY OF ALL THE EXISTING ASSETS
This value is the gross estate or gross assets
This will involve an appraisal/valuation of these existing assets at the time of the decedents death.
Note that these assets include only those properties that survive the decedent, those which are not extinguished by
his death.
In other words, only non-personal assets (in relation to Art. 774 and 777)
2. DEDUCT UNPAID DEBTS AND CHARGES
Once you deduct this, you get the available assets
The difference between the gross assets and the unpaid obligations will be the available assets.
All unpaid obligations of the decedent should be deducted from the gross assets.
Note that it involves the same rule with assets, only those obligations with monetary value which are not
extinguished by death are considered here.
Thus, those obligations which are purely personal (intuitu personae) are not taken into account
3. ADD THE VALUE OF ALL DONATIONS INTER VIVOS MADE BY DECEDENT
This determines the net hereditary estate
The sum of the available assets and all the donations inter vivos is the net hereditary estate.
To the available assets should be added ALL the inter vivos donations made by the decedent.
The donations inter vivos shall be valued as of the time they were respectively made.
Any increase or decrease in value from the time they were made to the time of the decedents death shall be for
the donees account, since donation transfers ownership to the donee.
VIZCONDE VS. COURT OF APPEALS 286 SCRA 217 (1998)
Collation Defined
Collation is the act by virtue of which descendants or other forced heirs who intervene in the division of the
inheritance of an ascendant bring into the common mass, the property which they received from him, so that
the division may be made according to law and the will of the testator.
Collation is only required of compulsory heirs succeeding with other compulsory heirs and involves property
or rights received by donation or gratuitous title during the lifetime of the decedent.
The purpose is to attain equality among the compulsory heirs in so far as possible for it is presumed that the
intention of the testator or predecessor in interest in making a donation or gratuitous transfer to a forced heir
is to give him something in advance on account of his share in the estate, and that the predecessors will is
to treat all his heirs equally, in the absence of any expression to the contrary.
Collation does not impose any lien on the property or the subject matter of collationable donation. What is
brought to collation is not the property donated itself, but rather the value of such property at the time it was
donated, the rationale being that the donation is a real alienation which conveys ownership upon its
acceptance, hence any increase in value or any deterioration or loss thereof is for the account of the heir or
donee.
Collation covers only properties gratuitously given by the decedent during his lifetime to his
compulsory heirs
TRANSFERS CONSIDERED PART OF THE LEGITIME
Article 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to
him may demand that the same be fully satisfied. (815)
his compulsory heirs is void, and the latter may claim the same upon the death of the former; but they must
bring to collation whatever they may have received by virtue of the renunciation or compromise. (816)
Article 909. Donations given to children shall be charged to their legitime. (819a)

Article 910. Donations which an illegitimate child may have received during the lifetime of his father or mother,
shall be charged to his legitime. (847a)
Article 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate
not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken
proportionally from the shares of the other compulsory heirs. (1080a)
Article 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly
provided, or if the donee should repudiate the inheritance, unless the donation should be reduced as
inofficious. (1036)
Article 1063. Property left by will is not deemed subject to collation, if the testator has not otherwise provided,
but the legitime shall in any case remain unimpaired. (1037)
TRANSFERS WHICH ARE CONSIDERED PART OF THE LEGITIME

After you determine how much the legitime each compulsory heir is entitled to, you must then see if it has been
satisfied.
How do you determine if it has been satisfied? Know which dispositions or transfers to the compulsory heir are
considered part of the legitime first.
The following received by the compulsory heirs from the decedent, are considered part of their legitime
1. PROPERTY RECEIVED BY INTESTATE SUCCESSION
The legitime is first satisfied from the portion of the estate not disposed of by will.
See Art. 855, this applies if the title by which the testator transmitted property is intestate succession
2. DONATIONS INTER VIVOS
See Art. 905, 909 and 910
Donations inter vivos to a compulsory heir shall be imputed to his legitime. They are considered as an
advance on his legitime.
This rule applies to ALL compulsory heirs.
Note that these two articles omit, inadvertently, ascendants who succeed as compulsory heirs. This rule
applies to them as well.
For obvious reasons (because spouses cannot donate to each other), this rule has no application to a
surviving spouse, except in cases of donations propter nuptias and moderate gifts under Article 87 of the
Family Code
EXCEPTION: This rule of imputation to the legitime will not apply if the donor provided otherwise (Art. 1062), in
which case the donation will be imputed to the disposable portion of the estate
3. PROPERTY RECEIVED BY TESTAMENTARY SUCCESSION, IF THE TESTATOR PROVIDES
Generally, testamentary dispositions made by the predecessor to the compulsory heir is NOT subject to
collation, UNLESS the testator provides that it should be considered part of the legitime. (Art. 1063)
TRANSMISSIONS NOT CONSIDERED PART OF THE LEGITIME

The following received by the compulsory heirs from the decedent, are NOT considered advances on their
legitime:
1. Transmissions NOT by gratuitous title
Such as a valid and genuine sale
Remember principle of substitution of values
2. Donations Inter Vivos, if the Testator should expressly provide
If the predecessor gave the compulsory heir a donation inter vivos and provided that it was not to be charged
against the legitime (Art. 1062)
3. Property Received by Testamentary Succession
Generally, testamentary dispositions made by the predecessor to the compulsory heir is not subject to collation,
UNLESS the testator provides that it should be considered part of the legitime. (Art. 1063)
DONATIONS INTER VIVOS TO STRANGERS

A stranger is anyone who does not succeed as a compulsory heir.

He is person who is not a compulsory heir, who may be a sibling, cousin, or a total stranger
Donations inter vivos to strangers are necessarily imputed to the free or disposable portion.
REMEDY OF SATISFACTION OF LEGITIME

If the legitime has not been satisfied, as the dispositions to the compulsory heir is less than what he is entitled to, then
the legitime HAS BEEN IMPAIRED
The compulsory heir has the remedy of filing an action for completion or satisfaction of his legitime (Art.
906)
Art. 907 and 911 implements and provides the procedure for satisfying such legitime
SATISFACTION OF IMPAIRED LEGITIME; METHOD OF REDUCTION
Article 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be
reduced on petition of the same, insofar as they may be inofficious or excessive. (817)
Article 911. After the legitime has been determined in accordance with the three preceding articles, the
reduction shall be made as follows:
(1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary,
the devises or legacies made in the will;
(2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever.
If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer
any reduction until the latter have been applied in full to the payment of the legitime.
(3) If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than
that of the disposable portion, the compulsory heirs may choose between complying with the
testamentary provision and delivering to the devisee or legatee the part of the inheritance of which the
testator could freely dispose. (820a)
Article 773. If, there being two or more donations, the disposable portion is not sufficient to cover all of them,
those of the more recent date shall be suppressed or reduced with regard to the excess. (656)
Article 912. If the devise subject to reduction should consist of real property, which cannot be conveniently
divided, it shall go to the devisee if the reduction does not absorb one-half of its value; and in a contrary case,
to the compulsory heirs; but the former and the latter shall reimburse each other in cash for what respectively
belongs to them.
The devisee who is entitled to a legitime may retain the entire property, provided its value does not exceed
that of the disposable portion and of the share pertaining to him as legitime. (821)
Article 913. If the heirs or devisees do not choose to avail themselves of the right granted by the preceding
article, any heir or devisee who did not have such right may exercise it; should the latter not make use of it,
the property shall be sold at public auction at the instance of any one of the interested parties. (822)
TESTAMENTARY DISPOSITIONS THAT IMPAIR THE LEGITIME; REMEDY OF REDUCTION (ART. 907)
Normally the legitime is impaired because the testamentary dispositions exceed the free and disposable portion
Art. 907 provides the remedy in this case, it provides that testamentary dispositions that impair or diminish the
legitime of the compulsory heirs shall be REDUCED on petition of the same, insofar as they may be inofficious
or excessive
Art. 907 is based on the same principle expressed in Art. 904, that the testator cannot deprive the compulsory heirs of
their legitime
To allow the testator to make testamentary dispositions that impair the legitime would in effect allow him to deprive
the compulsory heirs of part of their legitime

If the testamentary dispositions exceed the disposable portion, the compulsory heirs may demand their reduction to
the extent that the legitimes have been impaired.
PROCEDURE TO SATISFY AN IMPAIRED LEGITIME; METHOD OF REDUCTION (ART. 911)

While Art. 907 provides the general remedy of reduction in order to satisfy a legitime which has been impaired, Art. 911
provides the complete rule and procedure on how it is made.
Art. 911 implements the principle laid down in Arts. 872, 886, and 904the inviolability of the legitime. Thus if the
legitimes are impaired, the gratuitous dispositions of the testator (either inter vivos or mortis causa) have to be
set aside or reduced as may be required to cover the legitimes.
It gives an order of priorities to be observed in the reduction of the testators gratuitous dispositions
These reductions shall be to the extent required to complete the legitimes, even if in the process the disposition is
reduced to nothing.
BALANE: You go as far as necessary to satisfy the legitime
Method of Reduction (Order of Preference):
1. REDUCE THE NON-PREFERRED TESTAMENTARY DISPOSITIONS
The first step is to reduce pro rata the non-preferred legacies and devises (Art. 911 [2]), and the testamentary
dispositions (to heirs) (Art. 907).
Among these legacies, devises, and testamentary dispositions there is no preference.
Non-preferred means that the testator did not provide for preference
2. REDUCE THE PREFERRED TESTAMENTARY DISPOSITIONS
This is also pro-rata
Preferred means that the testator has directed that a certain devise or legacy be paid in preference to others,
thus, it shall not suffer any reduction until the latter have been applied in full to the payment of the legitime. (Art.
911, last paragraph)
3. REDUCE THE DONATIONS INTER VIVOS TO STRANGERS
This is when all the testamentary dispositions have already been reduced to nothing
The last step is to reduce the donations inter vivos made to strangers
Because donations inter vivos made to compulsory heirs are considered advances on their legitimate
The deduction is NOT pro-rata, but according to the inverse order of their dates, meaning you reduce the most
recent first. (Art. 773)
In other words, the oldest is the most preferred
BALANE: The last donation is the first to go, and the first donation is the last to go. Follow the principle of
first in time, stronger in right. Law contemplates that the testator prefers the earlier donations.
4. REDUCE THE LEGITIMES OF THE ILLEGITIMATE CHILDREN/DESCENDANTS
Remember that there is one instance where the legitime will NOT be satisfied
This is when there is no free portion because the total legitimes exceed the estate.
This occurs when there is a concurrence of legitimate and illegitimate children/descendants. (Art. 895)
Even if you reduce all the testamentary dispositions and donations to nothing, you cannot satisfy the legitime
The remedy is to reduce pro-rata the legitimes of the illegitimate children/descendants (Art. 895)
METHOD OF REDUCTION OF DEVISES OR LEGACIES OF USUFRUCT/LIFE ANNUITIES/PENSIONS

Observe the following principles:
1. If, upon being capitalized according to actuarial standards, the value of the grant exceeds the free portion (it
impairs the legitime), it has to be reduced, because the legitime cannot be impaired.
2. The testator can impose no usufruct or any other encumbrance on the part that passes as legitime
3. Subject to the two rules just stated, the compulsory heirs may elect between ceding to the devisee/legatee the free
portion (or the proportional part thereof corresponding to the said legacy/devise, in case there are other
dispositions), and complying with the terms of the usufruct or life annuity or pension.
DOLOR V. BISHOP OF JARO, 68 PHIL. 727.
METHOD OF REDUCTION IF THE DEVISE IS INDIVISIBLE REAL PROPERTY (ART. 912 AND 913)
Art. 912 and 913 provides specific rules in cases the devise to be reduced is:
1. Real property, and
2. Indivisible
Rules:
1. If the extent of reduction is less than 1 /2 of the value of the thing, devisee has right to acquire it

2. If extent of reduction is 1/2 or more of the value of the thing, compulsory heir (whose legitime is impaired) has
right to acquire it
3. There should be pecuniary reimbursement to the party who did not get his physical portion of the thing devised.
This applies in either case
4. If neither party (the compulsory heir/s and the devisee) elects to exercise his right of acquiring such property, any
other heir or devisee, who elects to do so, may acquire the thing and pay the parties (the compulsory heir and
the devisee in question) their respective shares in money
5. If no heir or devisee elects to acquire it, it shall be sold at public auction and the net proceeds accordingly divided
between the parties concerned.
Note: This rule of constructive partition is similar to that in co-ownership (Art. 498) and in partition of the decedents
estate (Art. 1086), except that, in these two latter cases, the acquisition by one of the co-owners or co-heirs can be
done only if all the co-owners or co-heirs agree to such acquisition.
FREE AND DISPOSABLE PORTION
Article 914. The testator may devise and bequeath the free portion as he may deem fit. (n)
This is the portion left after satisfying the legitimes of the compulsory heirs
BALANE: Note that this covers not only dispositions by devise or legacies but all modes of testamentary dispositions
This article is simply a restatement of Art. 842, and is therefore unnecessary.
One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this
Code with regard to the legitime of said heirs"
SECTION 6: DISINHERITANCE
EFFECT OF DISINHERITANCE
Article 915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes
expressly stated by law. (848a)
REQUISITES OF A VALID DISINHERITANCE

1. It must be made in a will (Article 916);
2. It must be for a cause specified by law (Article 916 in relation to Articles 919-921);
3. The will must specify the cause (Articles 916 and 918);
4. It must be unconditional (Manresa)
5. It must be total (Manresa)
6. The cause must be true (Article 918);
7. If the truth of the cause is denied, it must be proved by the proponent (Article 917).
BALANE: The strictness of the requisites indicates the policy of the law. It regards disinheritance with disfavor and will
grant it only with reluctance, because disinheritance results in deprivation of legitime.
EFFECT OF DISINHERITANCE
RULE: THE EFFECT OF DISINHERITANCE IS NOT JUST DEPRIVATION OF THE LEGITIME, BUT TOTAL EXCLUSION OF
THE DISINHERITED HEIR FROM THE INHERITANCE.
Remember that Art. 904 sets forth the rule that the testator cannot deprive the compulsory heirs of the legitime. The
sole exception to this rule is disinheritance.
Thus, disinheritance is the ONLY instance in which the testator may deprive his compulsory heirs of their
legitime.
Thus, the disinherited heir forfeits:
1. His legitime,
2. His intestate portion, if any, and

3. Any testamentary disposition made in a prior will of the disinheriting testator.
HOW DISINHERITANCE SHOULD BE EFFECTED
Article 916. Disinheritance can be effected only through a will wherein the legal cause therefor shall be
specified. (849)
1. Should be made through a will

The will, obviously, must be formally valid and must be admitted to probate.
2. Legal Cause should be specified in the will
The causes are specified in Articles 919 (for descendants), 920 (for ascendants), and 921 (for the surviving
spouse).
BURDEN OF PROVING THE CAUSE FOR DISINHERITANCE
Article 917. The burden of proving the truth of the cause for disinheritance shall rest upon the other heirs of
the testator, if the disinherited heir should deny it. (850)
Truth of the cause for disinheritance is not presumed; it must be proved.

All the disinherited heir need do is deny the cause and the burden is thrown upon those who would uphold the
disinheritance.
INEFFECTIVE DISINHERITANCE
Article 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if
contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of
heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary
dispositions shall be valid to such extent as will not impair the legitime. (851a)
This article refers to the requisite that the legal cause for disinheritance should be specified and such must be proved
to be true.
If the disinheritance lacks one or other of the requisites mentioned in this article, the heir in question gets his
legitime. As to whether he will also get any part of the intestate portion or not, this depends on whether the testator
gave away the free portion through testamentary dispositions.
If he did, these dispositions are valid and the compulsory heir improperly disinherited gets only his legitime.
If the testator did not, the compulsory heir will be entitled to his corresponding share of the free portion as well.
Note the difference between the effect of ineffective disinheritance and that of preterition. (Article 854).
CAUSES FOR DISINHERITANCE OF CHILDREN OR DESCENDANTS
Article 919. The following shall be sufficient causes for the disinheritance of children and descendants,
legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her
spouse, descendants, or ascendants;
(2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment
for six years or more, if the accusation has been found groundless;
(3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to
make a will or to change one already made;

(5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or
descendant;
(6) Maltreatment of the testator by word or deed, by the child or descendant;
(7) When a child or descendant leads a dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil interdiction. (756, 853, 674a)

This article provides the causes for disinheritance of children or descendants (whether legitimate or illegitimate), as a
compulsory heir
The enumeration is exclusive
Note that the testator contemplated here is the parent or ascendant, while the compulsory heir is the testators
children or descendant
GROUNDS FOR DISINHERITANCE OF CHILDREN/DESCENDANTS

1. GUILTY OF ATTEMPT ON THE LIFE OF TESTATOR, HIS SPOUSE, DESCENDANTS, OR ASCENDANTS
The word attempt here is used non- technically and should not be construed to limit the provision to the attempted
stage of the felony.
All stages of commission are includedwhether attempted, frustrated, or consummated.
The felony, obviously, must be an intentional one.
Final conviction is required.
2. GROUNDLESS ACCUSATION OF THE TESTATOR OF A CRIME PUNISHABLE BY IMPRISONMENT OF 6 YEARS OR MORE
a. There must be an accusation of a crime the penalty of which is at least 6 years
The word accused here is used generically, and will include filing of the complaint before the prosecutor, or
presenting incriminating evidence against the testator, or even suppressing exculpatory evidence.
The crime of which the testator is accused must carry a penalty of at least six years imprisonment
BALANE: This should be more than 6 years, because what is contemplated is prision mayor and above.
b. The testator must be acquitted.
c. The accusation must be found to be groundless
The judgment of acquittal must state either that no crime was committed or that the accused did not commit the
crime.
An acquittal on reasonable doubt or prescription will not be a ground for disinheritance.
3. CONVICTION FOR ADULTERY OR CONCUBINAGE WITH TESTATORS SPOUSE
Final conviction for adultery or concubinage is required.
4. CAUSES THE TESTATOR TO MAKE OR CHANGE A WILL BY FRAUD, VIOLENCE, INTIMIDATION OR UNDUE INFLUENCE
Covers causing the testator either to make a will or to change one already made
BALANE: On its face, this ground is not that serious compared to the previous grounds, but in testmentary law, this
is very serious, as you are depriving the testator of his testamentary freedom
5. UNJUSTIFIABLY REFUSES TO GIVE SUPPORT THE TESTATOR
The demand must have been unjustifiably refused. Mere refusal is not enough
Refusal may be justified, such as if the obligor does not have enough resources for all whom he is obliged to
support.
Note that the ascendants are only third in the hierarchy of preference among claimants of support (Art. 200, par.
3, Family Code).
6. SERIOUSLY MALTREATS THE TESTATOR BY WORD OR DEED
This will include a wide range of misdeeds, but it is required that the act of verbal or physical assault be of a
serious nature.
BALANE: It should be serious and judged by the present values of society.
No conviction is required; in fact, it is not even required that any criminal case be filed.
Consequently, a physical assault that would not fall under par. 1, could fall under this paragraph.
Note that this is very hard to prove, especially if the verbal or physical assault took place with no witnesses. The
other heirs will have a hard time proving this ground.
7. LEADS A DISHONOURABLE OR DISGRACEFUL LIFE
The operative word here is lead.
There must be a habituality or continuity to the conduct to make it fall under this paragraph.

One act would not suffice
BALANE: This should also be judged by the present values of society. The dishonorable or disgraceful conduct or
pattern of behavior need not be sexual in nature, although it may often be that. Surely, a child or descendant whose
livelihood is drug-pushing or smuggling is living a dishonorable and disgraceful life (assuming our society still
recognizes some civilized values).
8. CONVICTION OF A CRIME PENALIZED BY CIVIL INTERDICTION
Final conviction is required.
The accessory penalty of civil interdiction is imposed with the principal penalties of death, reclusion perpetua, and
reclusion temporal. (Articles 40-41, Revised Penal Code).
BALANE: Note that you need conviction (criminal) in some cases, thus, it must be proved by proof beyond reasonable
doubt before a competent court. But in other cases, it may be proved by preponderance of evidence.
CAUSES FOR THE DISINHERITANCE OF PARENTS OR ASCENDANTS
Article 920. The following shall be sufficient causes for the disinheritance of parents or ascendants, whether
legitimate or illegitimate:
(1) When the parents have abandoned their children or induced their daughters to live a corrupt or immoral
life, or attempted against their virtue;
(2) When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her
spouse, descendants, or ascendants;
(3) When the parent or ascendant has accused the testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation has been found to be false;
(4) When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the
testator
(5) When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to
make a will or to change one already made;
(6) The loss of parental authority for causes specified in this Code;
(7) The refusal to support the children or descendants without justifiable cause;
(8) An attempt by one of the parents against the life of the other, unless there has been a reconciliation
between them. (756, 854, 674a)
BALANE: Pars. 2, 3, 4, 5, and 7 are also enumerated under Article 919. But note the variation in the wording of par. 3The
word here used is false, whereas par. 2 of Art. 919 uses groundless. Par. 2 of Art. 921 also uses false. The change is not
substantive, but merely stylistic.

This article provides the causes for disinheritance of parent or ascendants (whether legitimate or illegitimate), as a
compulsory heir
The enumeration is also exclusive
Note that the testator contemplated here is the children or descendant, while the compulsory heir is the
testators parent or ascendant
GROUNDS FOR DISINHERITANCE OF PARENTS/ASCENDANTS

1. ABANDONMENT OF CHILDREN
Abandonment here is not restricted to those instances of abandonment penalized by law (Articles 276-277, Revised
Penal Code; Article 59, PD 603), but includes all conduct constituting a repeated or total refusal or failure to care for
the child.
BALANE: This means culpable (intentional) or negligent failure to support
CHUA V. CABANGBANG, T7 SCRA 791
Mere acquiescencewithout moreis not sufficient to constitute abandonment. But the record yields a host of
circumstances which, in their totality, unmistakably betray the petitioners settled purpose and intention to
completely forego all parental responsibilities and forever relinquish all parental claim in respect to the child.
She continuously shunned the natural and legal obligations which she owed to the child; completely withheld her
presence, her love, her care, and the opportunity to display maternal affection; and totally denied her support

and maintenance. Her silence and inaction have been prolonged to such a point that her abandonment of the
child and her total relinquishment of parental claim over her, can and should be inferred as a matter of law
2. INDUCED THEIR DAUGHTERS TO LIVE A CORRUPT OR IMMORAL LIFE
This ground is basically the same as that given in Art. 231(2) of the Family Code as a ground for suspension or
deprivation of parental authority.
The terms of this provision seem to apply only to daughters.
TOLENTINO: Although the law mentions only daughters', we believe that this should be construed to mean all
female descendants. For instance, X has two granddaughters, who are children of a predeceased child. He
leads one of them to a life of prostitution. Certainly, he has committed such a reprehensible act as would justify
his disinheritance by any of those granddaughters.
BALANE: Shouldnt sons and other male descendants, and other female descendants be covered as well by this
provision? It was a more innocent world when the present Code was drafted in the late forties. Now, sexual
offenses are committed, apparently with equal frequency, against both males and females. Gender equality cuts
both ways. Note that Art. 231, pars. (2) and (4) of the Family Code make no distinction. They should be included
by virtue of the Equal Protection Clause and Convention on the Rights of the Child
3. ATTEMPT AGAINST THE DAUGHTERS VIRTUE
Final conviction is NOT required here.
5. FALSE ACCUSATION OF THE TESTATOR OF A CRIME PUNISHABLE BY IMPRISONMENT OF 6 YEARS OR MORE
BALANE: false should be understood to be the same as groundless in Art. 919, but the latter is the better term
6. CONVICTION FOR ADULTERY OR CONCUBINAGE WITH TESTATORS SPOUSE
8. CULPABLE LOSS OF PARENTAL AUTHORITY
Obviously, not all causes for loss of parental authority are grounds for disinheritance (such as attainment of the age
of majority).
Only those causes which involve culpability on the part of the parents will provide grounds for disinheritance (Art.
229, 231 and 232 of the Family Code), which are:
a. Sexual abuse
b. Judicial declaration of abandonment of the child
c. Excessively harsh or cruel treatment of the child
d. Giving the child corrupting orders, counsel, or example
e. Compelling the child to beg
f. Subjecting the child or allowing to be subjected to acts of lasciviousness
Note that there should be a judicial deprivation (a judicial decree) of parental authority based on these grounds
9. UNJUSTIFIABLY REFUSES TO GIVE SUPPORT THE TESTATOR, OR OTHER CHILDREN OR DESCENDANTS
10. ATTEMPT ON THE LIFE OF THE OTHER PARENT, UNLESS THERE IS RECONCILIATION
No conviction is required here (unlike in number 3, where final conviction is required)
The meaning of attempt is the same as its meaning in number 3, which is to be used in its non-technical sense.
Reconciliation between the parents removes the right of a child or descendant to disinherit and rescinds a
disinheritance already made.
CAUSES FOR THE DISINHERITANCE OF SURVIVING SPOUSE
Article 921. The following shall be sufficient causes for disinheriting a spouse:
(1) When the spouse has been convicted of an attempt against the life of the testator, his or her descendants,
or ascendants;
(2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six
years or more, and the accusation has been found to be false;
(3) When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or
to change one already made;
(4) When the spouse has given cause for legal separation;
(5) When the spouse has given grounds for the loss of parental authority;
(6) Unjustifiable refusal to support the children or the other spouse. (756, 855, 674a)

Pars. 1, 2, 3, and 6 are also enumerated under Article 919

This article provides the causes for disinheritance of the surviving spouse, as a compulsory heir
The enumeration is also exclusive
Note that the testator contemplated here is the decedent-spouse, while the compulsory heir is the surviving
spouse of the testator
GROUNDS FOR DISINHERITANCE OF SURVIVING SPOUSE

2. FALSE ACCUSATION OF THE TESTATOR OF A CRIME PUNISHABLE BY IMPRISONMENT OF 6 YEARS OR MORE
4. GIVING CAUSE FOR LEGAL SEPARATION
A decree of legal separation is not required.
But note that one of the effects of a decree of legal separation is to exclude the offending spouse from inheriting
from the innocent spouse
Causes for legal separation (Art. 55 of the Family Code)
1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a
child of the petitioner;
2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage
in prostitution, or connivance in such corruption or inducement;
4. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
5. Drug addiction or habitual alcoholism of the respondent;
6. Lesbianism or homosexuality of the respondent;
7. Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
8. Sexual infidelity or perversion;
9. Abandonment of petitioner by respondent without justifiable cause for more than one year.
5. GIVING CAUSE FOR LOSS OF PARENTAL AUTHORITY
Note that this is different from the ground in Art. 920.
Whereas in Art. 920, actual loss of parental authority (a judicial decree) is required, here giving grounds therefor is
sufficient, thus, he need not be judicially deprived.
6. UNJUSTIFIABLY REFUSES TO GIVE SUPPORT THE TESTATOR OR THEIR CHILDREN
Summary of the Grounds/Causes for Disinheritance of Compulsory Heirs
ART. 919 ART. 920 ART. 921
Who is Child or Descendant (legitimate Parent or Ascendant (legitimate or Surviving Spouse

disinherited? or illegitimate) illegitimate)
Common 1. Guilty of attempt on the life of testator, his spouse, descendants, or ascendants
Grounds 2. Groundless/false accusation of the testator of a crime punishable by imprisonment of 6 years or more
3. Causes the testator to make or change a will by fraud, violence, intimidation or undue influence
4. Unjustifiably refuses to give support
5. Conviction for adultery or concubinage with testators spouse (Except for Art. 921)
Particular 1. Seriously maltreats the 1. Abandonment of children 1. Giving cause for legal
Grounds testator by word or deed 2. Induced their daughters to live a separation
2. Leads a dishonourable or corrupt or immoral life 2. Giving cause for loss of parental
disgraceful life 3. Attempt against the daughters virtue authority
3. Conviction of a crime 4. Culpable loss of parental authority
penalized by civil interdiction 5. Attempt on the life of the other
parent, unless there is reconciliation
SUBSEQUENT RECONCILIATION

Article 922. A subsequent reconciliation between the offender and the offended person deprives the latter of
the right to disinherit, and renders ineffectual any disinheritance that may have been made. (856)
BALANE: Through reconciliation, the law keeps the door open for the disinherited heir to be restored to capacity. This
rescinds the disinheritance previously made. This is akin to reconciliation in legal separation.
HOW RECONCILIATION IS MADE

Reconciliation is either an express pardon extended by the testator to the offending heir or unequivocal conduct of
the testator towards the offending heir which reveals the testators intent to forgive the offense.
1. Express Pardon
A general pardon extended by the testator on his deathbed to all who have offended him will not suffice; it must
be a pardon expressly and concretely extended to the offender, who accepts it
2. Unequivocal Conduct
The intent to forgive must be clear.
This is ultimately a question of fact, which will be resolved, in case of controversy, by the courts
BALANE: There is no definition or required form for reconciliation, it can be oral or in writing, it may be express or
implied from the acts of the parties. However, it must be definitive.
EFFECTS OF RECONCILIATION
1. The disinherited heir is restored to his legitime.
2. If the disinheriting will did not dispose of the disposable portion, the disinherited heir is entitled to his proportionate
share (in intestacy) if any, of the disposable portion.
3. If the disinheriting will or any subsequent will disposed of the disposable portion (or any part thereof) in favor of
testamentary heirs, legatees, or devisees, such dispositions remain valid.
BALANE: Reconciliation restores the disinherited heir to his capacity to inherit, but this is without prejudice to future
grounds of disinheritance. If the compulsory heir gives another ground for disinheritance, then the decedent may
disinherit him again.
RIGHT OF REPRESENTATION IN DISINHERITANCE
Article 923. The children and descendants of the person disinherited shall take his or her place and shall
preserve the rights of compulsory heirs with respect to the legitime; but the disinherited parent shall not have
the usufruct or administration of the property which constitutes the legitime. (857)
Article 972. The right of representation takes place in the direct descending line, but never in the ascending.
Article 1035. If the person excluded from the inheritance by reason of incapacity should be a child or
descendant of the decedent and should have children or descendants, the latter shall acquire his right to the
legitime.
Art. 225 of Family Code. The father and the mother shall jointly exercise legal guardianship over the property
of the unemancipated common child without the necessity of a court appointment. In case of disagreement,
the father's decision shall prevail, unless there is a judicial order to the contrary.Where the market value of the
property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish
a bond in such amount as the court may determine, but not less than ten per centum (10%) of the value of the
property or annual income, to guarantee the performance of the obligations prescribed for general guardians.
A verified petition for approval of the bond shall be filed in the proper court of the place where the child
resides, or, if the child resides in a foreign country, in the proper court of the place where the property or any
part thereof is situated.

The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding
the performance of the obligations referred to in the second paragraph of this Article shall be heard and
resolved.
The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute
parental authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on
guardianship shall apply. (320a)
Art. 226 of Family Code. The property of the unemancipated child earned or acquired with his work or industry
or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the
latter's support and education, unless the title or transfer provides otherwise.
The right of the parents over the fruits and income of the child's property shall be limited primarily to the
child's support and secondarily to the collective daily needs of the family. (321a, 323a)
WHO IS ENTITLED TO THE RIGHT OF REPRESENTATION

The right of representation is granted only to the children/descendants of disinherited children/descendants.
Thus, a disinherited child/descendant will be represented by his children or other descendants.
However, if the heir disinherited is a parent/ascendant or spouse, the children or descendants of the disinherited
heir do not have any right of representation.
BALANE: Art. 923 is carelessly worded. See Art. 972 and 1035 for correct wording. Representation takes place in
favour of the child or descendant of the disinherited heir (who himself is a child or descendant of the decedent).
EXTENT OF REPRESENTATION
The representative takes the place of the disinherited heir not only with respect to the legitime, but also to any
intestate portion that the disinherited heir would have inherited.
Representation, therefore, occurs in compulsory and intestate succession, but NOT in testamentary succession
IF THE DISINHERITED HEIR IS A PARENT

If the disinherited heir is a parent, he/she shall NOT have the usufruct or administration of the property which
constitutes the legitime. (Art. 923, last portion)
This presupposes that it is the child who inherits from the decedent, by virtue of representation, because his or her
parent was disinherited
BALANE: This has been amended, read this together with Art. 225 and 226 of the Family Code, the right of the
parents now has a right over the fruits and income of the childs property (which was acquired by the child by right
of representation, by virtue of the disinheritance of such parent) BUT such shall be limited primarily to the childs
support and secondarily to the collective daily needs of the family
SECTION 7: LEGACIES AND DEVISES
DEFINITION OF LEGACIES AND DEVISES
Article 924. All things and rights which are within the commerce of man be bequeathed or devised.
Article 782. An heir is a person called to the succession either by the provision of a will or by operation of law.
Devisees and legatees are persons to whom gifts of real and personal property are respectively given by
virtue of a will. (n)
Legacies and devises are codally defined in Art. 782, par. 2, but the definitions by the Spanish Code and Castan are
better:
1. Legacy

Testamentary disposition of personal property by particular title
Testamentary disposition of specific or generic personal property
2. Devise
Testamentary disposition of real property by particular title.
Testamentary disposition of specific or generic real property.
Distinguish this from a testamentary disposition to an heir
1. Heir
One who succeeds to the whole or an aliquot (fractional) part of the inheritance
Successor by universal title or by universal succession
Ex: X gives Y the whole of his estate, or 1/4 of his estate, in either case, Y is considered as an heir
2. Devisee/Legatee
Those who succeed to definite, specific and individual properties
Successor by specific title or by particular succession
Ex: X gives Y his house, or painting, etc.
This distinction is only important he effects of preterition.
What can be devised or bequeathed?
Anything within the commerce of man.
BALANE: Anything which is appropriable and alienable is within the commerce of man, fungible, indivisible,
divisible, real, personal, incorporeal, etc.
It is not required that the thing devised or bequeathed belong to the testator.
TO WHOM THE LEGACY/DEVISE IS CHARGED
Article 925. A testator may charge with legacies and devises not only his compulsory heirs but also the
legatees and devisees.
The latter shall be liable for the charge only to the extent of the value of the legacy or the devise received by
them. The compulsory heirs shall not be liable for the charge beyond the amount of the free portion given
them. (858a)
Article 926. When the testator charges one of the heirs with a legacy or devise, he alone shall be bound.
Should he not charge anyone in particular, all shall be liable in the same proportion in which they may inherit.
(859)
RULE: GENERALLT, THE ESTATE IS CHARGED WITH THE LEGACY OR DEVISE

The executor or administrator is charged with complying with the obligation to deliver it accordingly
BALANE: The liability for the legacy/devisee is on the estate, this is called a direct legacy/devise
EXCEPTION: THE TESTATOR MAY IMPOSE THE BURDEN ON A TESTAMENTARY HEIR OR TO ANOTHER LEGATEE OR
DEVISEE, BUT NOT THE COMPULSORY HEIR
In this case, the testamentary disposition will be subject to a mode (modal disposition). As far as the heir,
legatee, or devisee charged is concerned, it will be a mode (Art. 882)
BALANE: This is not common. This is also called an indirect or subsidiary legacy/devise
If he does so, then the heir, legatee, or devisee charged will, if he accepts the disposition in his favor, be bound
to deliver the legacy or devise to the person specified.
Extent of liability of heir, devisee, or legatee in case of subsidiary legacies or devises is the value of the benefit
received from the testator.
Ex: I give A 1/4 of my estate but I impose upon him the obligation to give B a car." If A wants to accept the 1/4,
he will have to give a car to B.
BALANE: The wording of Art. 925 is erroneous. A compulsory heir as such cannot be burdened or made liable with
a legacy or devise because that would impair his legitime. Only a testamentary heir can be so burdened and
charged. The devise or legacy can only be charged to the free portion.

SOLIDARY LIABILITY OF CO-HEIRS TO DEVISEE/LEGATEES
Article 927. If two or more heirs take possession of the estate, they shall be solidarily liable for the loss or
destruction of a thing devised or bequeathed, even though only one of them should have been negligent. (n)
The liability imposed by this article is based on malice, fault or negligence.

This liability will also attach to the executor or administrator in the proper cases.
BALANE: This is just the principle of solidary liability of joint-tortfeasors. This is one of the cases where the law
imposes solidarity. In fact, this applies not just to the heirs, but to all persons, under Tort Law.
WARRANTY IN CASE OF EVICTION
Article 928. The heir who is bound to deliver the legacy or devise shall be liable in case of eviction, if the thing
is indeterminate and is indicated only by its kind. (860)
Generally, the estate is liable in case of eviction

EXCEPTION: In case of a subsidiary legacy or devisethe heir, legatee, or devisee charged.
Warranty in case of eviction ONLY applies to generic legacy/devise, NOT specific/determinate
LEGACY/DEVISE OF A THING OWNED IN PART BY THE TESTATOR; LEGACY/DEVISE OF A THING OWNED

BY ANOTHER
Article 929. If the testator, heir, or legatee owns only a part of, or an interest in the thing bequeathed, the
legacy or devise shall be understood limited to such part or interest, unless the testator expressly declares
that he gives the thing in its entirety. (864a)
Article 930. The legacy or devise of a thing belonging to another person is void, if the testator erroneously
believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator
when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect. (862a)
Article 931. If the testator orders that a thing belonging to another be acquired in order that it be given to a
legatee or devisee, the heir upon whom the obligation is imposed or the estate must acquire it and give the
same to the legatee or devisee; but if the owner of the thing refuses to alienate the same, or demands an
excessive price therefor, the heir or the estate shall only be obliged to give the just value of the thing. (861a)
Article 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in
the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n)
RULE: GENERALLY, IF THE LEGACY/DEVISE OF A THING ONLY OWNED IN PART BY THE TESTATOR WHAT IS CONVEYED
IS ONLY THE INTEREST OR PART OWNED BY THE TESTATOR. (ART. 929)
EXCEPTION: IF TESTATOR PROVIDES OTHERWISE, HE CAN EITHER CONVEY:
1. More than he owns (Art. 930, 931)
In this case, the estate should try to acquire the part or interest owned by other parties.
If the other parties are unwilling to alienate (or the other parties are asking for an unreasonable price), the
estate should give the legatee/devisee the monetary equivalent (by analogy with Article 931)
The validity of the disposition as to the part or interest not owned by the testator will be determined by the
provisions of Articles 930 and 931 (pertaining to devises/Legacies of a Thing Owned by Another)
2. Less than he owns (Art. 794)
Ex: Legal ownership to A, but beneficial ownership to B

RULES ON LEGACIES/DEVISES IN CASE THE THING IS OWNED BY ANOTHER (ART. 930, 931)
BALANE: There are two requirements in case a devise/legacy of a thing owned by another:
1. Testator must expressly order the acquisition of the thing
2. The testator must not have made a mistake, he must know that the property belonged to him
1. IF THE TESTATOR ORDERED THE ACQUISITION OF THE THING

The order should be complied with.
If the owner is unwilling to part with the thing, the legatee/devisee should be given the monetary equivalent.
2. IF THE TESTATOR ERRONEOUSLY BELIEVED THAT THE THING BELONGED TO HIM
Legacy/devise void.
EXCEPTION: If, subsequent to the making of the disposition, the thing is acquired by the testator onerously or
gratuitously, the disposition is validated.
BALANE: Th testator made a mistake, maybe he was rich and thought he owned the proeprty he made subject to a
testamentary disposition. Of course, it is void, except if he subsequent (after the making of the will) acquires such
property
3. IF THE TESTATOR KNEW THAT THE THING DID NOT BELONG TO HIM BUT DID NOT ORDER ITS ACQUISITION
BALANE: This is a middle-ground, the Code is silent on this. The most rational solution seems to be that such a
disposition should be considered valid, because:
a. The fact that the testator, with knowledge of another persons ownership, bequeathed the thing, implies an order
to acquire;
b. At worst, there is a doubt, and doubts should be resolved in favor of testacy (Articles 788, 791)
LEGACY/DEVISE OF A THING ALREADY OWNED OR SUBSEQUENTLY ACQUIRED BY THE DEVISEE/LEGATEE
Article 932. The legacy or devise of a thing which at the time of the execution of the will already belonged to
the legatee or devisee shall be ineffective, even though another person may have some interest therein.
Article 933. If the thing bequeathed belonged to the legatee or devisee at the time of the execution of the will,
the legacy or devise shall be without effect, even though it may have subsequently alienated by him.
If the legatee or devisee acquires it gratuitously after such time, he can claim nothing by virtue of the legacy
or devise; but if it has been acquired by onerous title he can demand reimbursement from the heir or the
estate. (878a)
RULES IN CASE THE LEGACY/DEVISE IS ALREADY OWNED OR SUBSEQUENTLY ACQUIRED BY THE DEVISEE/LEGATEE
1. IF THE THING ALREADY BELONGED TO THE LEGATEE/DEVISEE AT THE TIME OF THE EXECUTION OF THE WILL
Legacy/ devise void.
It is NOT validated by an alienation by the legatee/devisee subsequent to the making of the will, unless the acquirer
is the testator himself
NOTE: Arts. 932, par. 1 and 933, par. 1 say essentially the same thing and should be merged.
2. IF THE THING WAS OWNED BY ANOTHER PERSON AT THE TIME OF THE MAKING OF THE WILL AND ACQUIRED
THEREAFTER BY THE LEGATEE/DEVISEE
a. If the testator erroneously believed that it belonged to him
Legacy/devise void (Art. 930)
b. If the testator was not in error (testator knew that it did not belong to him)
i. If the thing was acquired onerously by legatee/devisee
Legatee/devisee is entitled to reimbursement
BALANE: This is for the price the legatee/devisee paid
ii. If the thing was acquired gratuitously by legatee/devisee
Nothing more is due
BALANE: Devisee/legatee is not entitled to anything anymore since the purpose of the testator has already
been achieved
3. IF THE THING WAS OWNED BY THE TESTATOR AT THE TIME OF THE MAKING OF THE WILL AND ACQUIRED THEREAFTER
FROM HIM BY THE LEGATEE/DEVISEE

Articles 932 and 933 are silent on this, but Article 957, par. 2 can be applied and the legacy/devise should be
deemed revoked.
BALANE: Not entitled to reimbursement, because when the testator sold it to the devisee/legatee, this revokes the
legacy/devisee. This is one of the modes of revocation (revocation by operation of law, by alienation of the thing)
LEGACY/DEVISE TO REMOVE AN ENCUMBRANCE
Article 932. If the testator expressly orders that the thing be freed from such interest or encumbrance, the
legacy or devise shall be valid to that extent. (866a)
Article 934. If the testator should bequeath or devise something pledged or mortgaged to secure a recoverable
debt before the execution of the will, the estate is obliged to pay the debt, unless the contrary intention
appears.
The same rule applies when the thing is pledged or mortgaged after the execution of the will.
Any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes with it to the
legatee or devisee. (867a)
Article 946. If the thing bequeathed should be subject to a usufruct, the legatee or devisee shall respect such
right until it is legally extinguished. (868a)
RULE IN CASE THE THING SUBJECT OF A DEVISE/LEGACY IS ENCUMBERED

1. LEGACY/DEVISE TO REMOVE AN ENCUMBRANCE OVER A THING BELONGING TO THE LEGATEE/DEVISEE (ARTICLE 932,
PAR. 2)
Valid, if the encumbrance can be removed for a consideration.
BALANE: The encumbrance can only be removed by money. Some encumbrances such as easement of right of
way cannot be validly subject to devise/legacy because it cannot be removed. The removal of the encumbrance is
the subject-matter of the devisee/legacy
2. LEGACY/DEVISE OF A THING PLEDGED OR MORTGAGED (ART. 934)
The encumbrance must be removed by paying the debt, unless the testator intended otherwise
BALANE: This is a legacy/devisee of something owned by the testator which is already subject to an outstanding
encumbrance (pledge or mortgage). In this case, the estate has to pay the debt to clear of the pledge/mortgage,
unless the testator expressly provides that the devisee/legatee must pay the debt. But remember, this must be a
pledge, mortage, or an antichresis. This will NOT apply if it was an easement of right of way or usufruct
3. A CHARGE OTHER THAN A PLEDGE OR MORTGAGE, SUCH AS A USUFRUCT OR EASEMENT (ART. 934, PAR. 3 & ART.
946)
Passes to the legatee or devisee together with the thing
The legatee or devisee should respect such right until it is legally extinguished.
LEGACY OF A CREDIT OR REMISSION
Article 935. The legacy of a credit against a third person or of the remission or release of a debt of the legatee
shall be effective only as regards that part of the credit or debt existing at the time of the death of the testator.
In the first case, the estate shall comply with the legacy by assigning to the legatee all rights of action it may
have against the debtor. In the second case, by giving the legatee an acquittance, should he request one.
In both cases, the legacy shall comprise all interests on the credit or debt which may be due the testator at the
time of his death. (870a)

Article 936. The legacy referred to in the preceding article shall lapse if the testator, after having made it,
should bring an action against the debtor for the payment of his debt, even if such payment should not have
been effected at the time of his death.
The legacy to the debtor of the thing pledged by him is understood to discharge only the right of pledge. (871)
Article 937. A generic legacy of release or remission of debts comprises those existing at the time of the
execution of the will, but not subsequent ones. (872)
APPLICABILITY OF ART. 935 TO 937

These involve legacies of credit or remission
1. LEGACY OF CREDIT
Takes place when the testator bequeaths to another a credit against a third person.
In effect, it is a novation of the credit by the subrogation of the legatee in the place of the original creditor.
Example: "I give to A all the debts B owes me."
2. LEGACY OF REMISSION
A testamentary disposition of a debt in favor of the debtor.
The legacy is valid only to the extent of the amount of the credit existing at the time of the testator's
death.
In effect, the debt is extinguished.
BALANE: Because this will be extinguished by meger/confusion. The legatee will be his own creditor.
Example: "I give to A as legacy his debt to me."
RULES IN CASE OF LEGACY OF CREDIT OR REMISSION

1. Applies only to amount still unpaid at the time of testators death (Article 935)
Example: A owes B P1,000. B makes a will giving as legacy to A the debt of A. After the will is made, A pays B 500.
How much is the legacy? P500.
2. Revoked if testator subsequently sues the debtor for collection (Article 936)
The mere filing of an action to collect ipso facto revokes the legacy.
The testator need not prosecute it, even if it is dismissed, the legacy is still revoked. Mere filing revokes it
It must be a legal or judicial demand
Example: A bequeaths the credit he has against B to B. After making the will, A sues B for collection. A dies while
the suit is pending. Does B have a right to the credit? No. The filing of the action revoked the legacy.
3. If generic, applies only to those existing at the time of the execution of the will. (Articles 937 and 793), unless
otherwise provided.
Example: "I give to A all the credits I have against B." When the will was made, B had 3 debts. After the will was
made, B incurs 2 more debts. Which ones can A claim? Only the first 3, except when the testator provides
otherwise.
BALANE: As worded, Art. 937 only applies to legacy of remission, but by analogy it can apply to legacies of credit.
This is in accordance to the principle in Art. 793 (on rules of interpretation of testamentary dispositions)
LEGACY/DEVISE TO A CREDITOR; TESTAMENTARY INSTRUCTION TO PAY A DEBT
Article 938. A legacy or devise made to a creditor shall not be applied to his credit, unless the testator so
expressly declares.
In the latter case, the creditor shall have the right to collect the excess, if any, of the credit or of the legacy or
devise. (837a)
Article 939. If the testator orders the payment of what he believes he owes but does not in fact owe, the
disposition shall be considered as not written. If as regards a specified debt more than the amount thereof is
ordered paid, the excess is not due, unless a contrary intention appears.

The foregoing provisions are without prejudice to the fulfillment of natural obligations. (n)
LEGACY/DEVISE TO A CREDITOR
RULE: GENERALLY, IT WILL BE TREATED LIKE ANY OTHER LEGACY/DEVISE AND THEREFORE WILL NOT BE IMPUTED
TO THE DEBT.
EXCEPTION: IT WILL BE IMPUTED TO THE DEBT IF THE TESTATOR SO PROVIDES, AND IF THE DEBT EXCEEDS THE
LEGACY/DEVISE, THE EXCESS MAY BE DEMANDED AS AN OBLIGATION OF THE ESTATE.
BALANE: Note that if the testator does provide that the legacy/devise should be imputed to the debt and the
amount of the debt is equal to or more than the value of the legacy/devise it would be folly for the creditor to
accept the benefit. He will be much better off renouncing the legacy/devise and filing a claim for the credit.
TESTAMENTARY INSTRUCTION TO PAY A DEBT

1. TESTAMENTARY INSTRUCTION TO PAY A DEBT
This is not a testamentary disposition, but merely a direction to discharge a civil obligation.
BALANE: This is not really a legacy, the testator is just ordering the payment of a debt.
2. INSTRUCTION TO PAY A NON-EXISTING DEBT
This should be disregarded, because this would be solutio indebiti
BALANE: This is also not a legacy, just a simple mistake.
But note that a non-existing debt may be a debt which has prescribed, in that case, the testator may validly
make a legacy to pay such prescribed debt, based on his moral/natural obligation.
3. INSTRUCTION TO PAY MORE THAN WHAT IS DUE
Effective only as to what is due, unless the bigger amount specified constitutes a natural obligation (Articles
1423-1430).
ALTERNATIVE LEGACIES
Article 940. In alternative legacies or devises, the choice is presumed to be left to the heir upon whom the
obligation to give the legacy or devise may be imposed, or the executor or administrator of the estate if no
particular heir is so obliged.
If the heir, legatee or devisee, who may have been given the choice, dies before making it, this right shall pass
to the respective heirs.
Once made, the choice is irrevocable.
In the alternative legacies or devises, except as herein provided, the provisions of this Code regulating
obligations of the same kind shall be observed, save such modifications as may appear from the intention
expressed by the testator. (874a)

This involves Alternative Legacies which are those which provide that, among several things mentioned, only one is to
be given.
BALANE: This is an either/or thing.
RULES IN CASE OF ALTERNATIVE LEGACIES

BALANE: The rules on alternative obligations (Art. 1199-1206) apply suppletorily, but really the rules are similar
1. WHO HAS THE RIGHT OF CHOICE?
a. If direct legacy/devise
The estate, through the executor or administrator
This is in accordance under the rules on alternative obligations, the debtor (the estate in this case) has the right
of choice
b. If subsidiary legacy/devise
The heir, legatee, or devisee charged

BALANE: These parties are, analogously, in the position of the debtor (Article 1200).
EXCEPTION: The legatee/devisee (or any other person), if the testator so provides.
2. IF THE PERSON WHO IS TO CHOOSE DIES BEFORE CHOICE IS MADE
a. If the choice belonged to executor or administrator
The right is transmitted to his successor in office.
b. If the choice belongs to an heir, legatee, or devisee
The right is transmitted to his own heirs.
3. CHOICE IS IRREVOCABLE
GENERIC LEGACIES AND DEVISES
Article 941. A legacy of generic personal property shall be valid even if there be no things of the same kind in
the estate. A devise of indeterminate real property shall be valid only if there be immovable property of its
kind in the estate.
The right of choice shall belong to the executor or administrator who shall comply with the legacy by the
delivery of a thing which is neither of inferior nor of superior quality. (875a)
Article 942. Whenever the testator expressly leaves the right of choice to the heir, or to the legatee or devisee,
the former may give or the latter may choose whichever he may prefer. (876a)
Article 943. If the heir, legatee or devisee cannot make the choice, in case it has been granted him, his right
shall pass to his heirs; but a choice once made shall be irrevocable. (877a)
Article 1246. When the obligation consists in the delivery of an indeterminate or generic thing, whose quality
and circumstances have not been stated, the creditor cannot demand a thing of superior quality. Neither can
the debtor deliver a thing of inferior quality. The purpose of the obligation and other circumstances shall be
taken into consideration. (1167a)
APPLICABILITY OF ART. 941-943

These articles pertain to Generic Legacies and Devises
BALANE: The rules on generic legacies are different with generic devises. Rule is stricter in devises rather than
legacies because this is based in Roman Law, before, real property is much highly regarded. But now, no valid reason
for this, because the distinction of the value of real and personal properties is really inexistent. Most people would even
prefer personal property, as it is much easier to transfer and dispose.
RULES IN CASE OF GENERIC LEGACIES AND DEVISES

1. VALIDITY (ART. 941)
a. Generic Legacies
Valid even if no such movables exist in the testators estate upon his death.
The estate will simply have to acquire what is given by legacy.
Ex: I give to A a patek watch
b. Generic Devise
Valid only if there exists such an immovable in the testators estate at the time of his death.
What if Limited Generic Legacy/Devise?
Valid, subject to same rules of choice
Ex: I give to A one of my watches, or one of my residential houses
2. RIGHT OF CHOICE (ART. 942, 943)
Generally, the executor or administrator, acting for the estate has the right to choose.
But he must give neither inferior nor superior quality.
EXCEPTION: If the testator gives the right of choice to the legatee/devisee, or to the heirs on whom the
obligation to give the benefit is imposed (in a subsidiary legacy or devise).
The choice must be limited to something which is neither superior nor inferior in quality.
This rule applies whether the choice belongs to the executor/administrator or the legatee/devisee

See Art. 1246
Ex: If the legacy is a patek watch, dont get the high end watch full of diamonds, nor a fake one.
The choice is irrevocable, once made.
Transmissibility of right to choose:
a. If the choice belongs to the executor/administrator and he dies before making the choice
Right is transmitted to his successor in the position.
b. If the choice belongs to the legatee/devisee and he dies before making the choice
Right passes to his heirs.
LEGACY FOR EDUCATION AND SUPPORT
Article 944. A legacy for education lasts until the legatee is of age, or beyond the age of majority in order that
the legatee may finish some professional, vocational or general course, provided he pursues his course
diligently.
A legacy for support lasts during the lifetime of the legatee, if the testator has not otherwise provided.
If the testator has not fixed the amount of such legacies, it shall be fixed in accordance with the social
standing and the circumstances of the legatee and the value of the estate.
If the testator or during his lifetime used to give the legatee a certain sum of money or other things by way of
support, the same amount shall be deemed bequeathed, unless it be markedly disproportionate to the value of
the estate. (879a)
Rules on Legacies for Education and Support
LEGACY FOR EDUCATION LEGACY FOR SUPPORT
Duration Age of majority (18) or the completion of a professional, The period provided for the testator, if there is
vocational, or general course, whichever comes later. none, then the legatees lifetime
*In the latter instance, only if the legatee pursues his

studies diligently.
Amount In the order of preference: In the order of preference:

1. That fixed by the testator 1. That fixed by the testator.
2. That which is proper, as determined by two That which the testator during his lifetime
2.
variables:
used to give the legatee by way of support,
a. The social standing and circumstances of the
legatee, and unless markedly disproportionate to the
b. The value of the disposable portion of the value of the disposable portion.
estate. 3. That which is reasonable, on the basis of
two variables:
a. The social standing and circumstances of the
legatee, and
b. The value of the disposable portion of the
estate.
*But now the variables under the Family Code, are the
needs of the person to be supported and the capacity of
the person giving the support
LEGACY OF A PERIODICAL PENSION
Article 945. If a periodical pension, or a certain annual, monthly, or weekly amount is bequeathed, the legatee
may petition the court for the first installment upon the death of the testator, and for the following ones which
shall be due at the beginning of each period; such payment shall not be returned, even though the legatee
should die before the expiration of the period which has commenced. (880a)

Demandabilityupon the testators death, and the succeeding ones at the beginning of the period without duty
to reimburse should the legatee die before the lapse of the period.
BALANE: This is basically the same as support. Don't take the upon the testators death literally. This should be
harmonized with the rules on the settlement of estates, the debts should first be paid before any testamentary grants
can be complied with (unless the legatee files a bond under Rule 90, Section 1 of the Rules of Court). However, should
the legacy prove not inofficious, the date of effectivity shall retroact to the decedents death.
Example: Testator dies on March 1, 2015 He has a will giving A a monthly pension of P1,000. If we follow Art. 945
literally, A can compel the estate to give him his pension from March 1, 2015. In reality, A has to wait. The estate
should be settled first (will probated, payment of debts, determine if legacy is effectual, etc.) After settlement of the
estate, A can demand his legacy and its effectivity will retroact to March 1, 2015.
DEMANDABILITY, OWNERSHIP, AND FRUITS OF LEGACIES/ DEVISES
Article 947. The legatee or devisee acquires a right to the pure and simple legacies or devises from the death
of the testator, and transmits it to his heirs. (881a)
Article 948. If the legacy or devise is of a specific and determinate thing pertaining to the testator, the legatee
or devisee acquires the ownership thereof upon the death of the testator, as well as any growing fruits, or
unborn offspring of animals, or uncollected income; but not the income which was due and unpaid before the
latter's death.
From the moment of the testator's death, the thing bequeathed shall be at the risk of the legatee or devisee,
who shall, therefore, bear its loss or deterioration, and shall be benefited by its increase or improvement,
without prejudice to the responsibility of the executor or administrator. (882a)
Article 949. If the bequest should not be of a specific and determinate thing, but is generic or of quantity, its
fruits and interests from the time of the death of the testator shall pertain to the legatee or devisee if the
testator has expressly so ordered.
and transmitting them to his heirs even before the arrival of the term. (799a)
Article 1187. The effects of a conditional obligation to give, once the condition has been fulfilled, shall retroact
to the day of the constitution of the obligation. Nevertheless, when the obligation imposes reciprocal
prestations upon the parties, the fruits and interests during the pendency of the condition shall be deemed to
have been mutually compensated. If the obligation is unilateral, the debtor shall appropriate the fruits and
interests received, unless from the nature and circumstances of the obligation it should be inferred that the
intention of the person constituting the same was different. In obligations to do and not to do, the courts shall
determine, in each case, the retroactive effect of the condition that has been complied with. (1120)
cease shall be valid. In both cases, the legal heir shall be considered as called to the succession until the
arrival of the period or its expiration. But in the first case he shall not enter into possession of the property
until after having given sufficient security, with the intervention of the instituted heir. (805)
Article 884. Conditions imposed by the testator upon the heirs shall be governed by the rules established for
conditional obligations in all matters not provided for by this Section. (791a)

Rules on Demandability, Ownership, and Fruits of Legacies/ Devises
DEMANDABILITY WHEN OWNERSHIP VESTS RIGHT TO THE FRUITS
1. PURE AND Upon testators Upon testators death Upon the testators death (Article 948)
DETERMINAT death
E
2. PURE AND 1. If acquired from estate: Upon determination, unless testator provides otherwise
GENERIC Upon testators death (Article 949)
2. If acquired from a third
person:
Upon acquisition
3. WITH A Upon the arrival of Upon arrival of the term, but the Upon the arrival of the term (implied from Article 885)
SUSPENSIVE the term right to it vests upon the testators
TERM death (Art. 878) *Although this article does not explicitly so declare, the
descendants of illegitimate children shall inherit per
capita if all the illegitimate children renounce. If these
descendants can inherit per stirpes, they can, in proper
cases, inherit per capita.
4. WITH A Upon the happening Upon the testators death, if the Upon the happening of the condition, unless the
SUSPENSIVE of the condition condition is fulfilled (Article 1187) testator provides otherwise (Article 884, in relation to
CONDITION Art. 1187).
RULES OF PREFERENCE IN DEVISE/LEGACIES
Article 950. If the estate should not be sufficient to cover all the legacies or devises, their payment shall be
made in the following order:
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the testator to be preferential;
(3) Legacies for support;
(4) Legacies for education;
(5) Legacies or devises of a specific, determinate thing which forms a part of the estate;
(6) All others pro rata. (887a)
Article 911. After the legitime has been determined in accordance with the three preceding articles, the
reduction shall be made asfollows:
(1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary,
the devises or legacies made in the will;
(2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever.
If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer
any reduction until the latter have been applied in full to the payment of the legitime.
(3) If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than
that of the disposable portion, the compulsory heirs may choose between complying with the testamentary
provision and delivering to the devisee or legatee the part of the inheritance of which the testator could
freely dispose. (820a)
Art. 950 lays down an order of preference among legacies and devises in case the estate is not sufficient for all
of them.
Art. 950 conflicts Art. 911
Art. 911 also contains a rule for reduction of legacies and devises and the order of preference there is different
This simply provides that all the non-preferred legacies/devises will be reduced pro rata, and the preferred legacies/
devises are reduced last.

BALANE: All commentators are in agreement of this reconciliation between the two articles: Each article should be
given its own area of applicability
ART. 950 ART. 911
When Applicable This will apply if the reason for the reduction is NOT This will apply if reductions have to be made because
the impairment of legitimes the legitimes have been impaired
Reasons other than impairment of legitimes, such *If the legacies/devises have exceeded the disposable
as: portion.
1. If there are no legitimes because there are no
compulsory heirs
2. If the legitimes have already been satisfied
through donations inter vivos.
Order of Reduce in the following order (#1 first, #6 last): Reduce in the following order:
Preference 1. All others pro rata 1. Reduce non-preferred devises and legacies first,
2. Legacies or devises of a specific, determinate pro-rata
thing which forms a part of the estate 2. Reduce preferred devises and legacies
3. Legacies for education
4. Legacies for support
5. Legacies or devises declared by the testator to
be preferential
6. Remuneratory legacies or devises
OBLIGATION TO DELIVER THE ACCESSIONS AND ACCESSORIES
Article 951. The thing bequeathed shall be delivered with all its accessories and accessories and in the
condition in which it may be upon the death of the testator. (883a)
Article 1166. The obligation to give a determinate thing includes that of delivering all its accessions and
accessories, even though they may not have been mentioned. (1097a)
The obligation to deliver the accessions and accessories exists even if the testator does not explicitly provide for it.
BALANE: This is only limited to determinate or specific legacies, NOT to generic ones. Same rule with Art. 1166
The crucial time is the testators death, because that is when successional rights vest (Art. 777). That is why the thing
must be delivered in the condition in which it is at that time.
OBLIGATION TO DELIVER THE THING ITSELF OR CASH; EXPENSES OF DELIVERY
Article 952. The heir, charged with a legacy or devise, or the executor or administrator of the estate, must
deliver the very thing bequeathed if he is able to do so and cannot discharge this obligation by paying its
value.
Legacies of money must be paid in cash, even though the heir or the estate may not have any.
The expenses necessary for the delivery of the thing bequeathed shall be for the account of the heir or the
estate, but without prejudice to the legitime. (886a)
Article 1244. The debtor of a thing cannot compel the creditor to receive a different one, although the latter
may be of the same value as, or more valuable than that which is due. In obligations to do or not to do, an act
or forbearance cannot be substituted by another act or forbearance against the obligee's will. (1166a)

Article 953. The legatee or devisee cannot take possession of the thing bequeathed upon his own authority,
but shall request its delivery and possession of the heir charged with the legacy or devise, or of the executor
or administrator of the estate should he be authorized by the court to deliver it. (885a)
This article conforms to the rule of identity in the performance of obligations in Art. 1244
Devisee/Legatee cannot immediately take possession (Art. 953)
Although the efficacy of a legacy or devise vests upon the testators death, actual delivery does not take place at
that time. As already pointed out, debts first have to be paid, then legitimes have to be determined, and the
testamentary dispositions (including legacies and devises) computed lest they impair the legitimes.
It is only after these steps have been taken that the beneficiaries of the will can take possession.
ACCEPTANCE AND REPUDIATION OF LEGACIES/DEVISES
Article 954. The legatee or devisee cannot accept a part of the legacy or devise and repudiate the other, if the
latter be onerous. Should he die before having accepted the legacy or devise, leaving several heirs, some of
the latter may accept and the others may repudiate the share respectively belonging to them in the legacy or
devise. (889a)
Article 955. The legatee or devisee of two legacies or devises, one of which is onerous, cannot renounce the
onerous one and accept the other. If both are onerous or gratuitous, he shall be free to accept or renounce
both, or to renounce either. But if the testator intended that the two legacies or devises should be inseparable
from each other, the legatee or devisee must either accept or renounce both.
Any compulsory heir who is at the same time a legatee or devisee may waive the inheritance and accept the
legacy or devise, or renounce the latter and accept the former, or waive or accept both. (890a)
Article 1055. If a person, who is called to the same inheritance as an heir by will and ab intestato, repudiates
the inheritance in his capacity as a testamentary heir, he is understood to have repudiated it in both
capacities.
Should he repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he may still
accept it in the latter capacity. (1009)
RULES ON ACCEPTANCE AND REPUDIATION OF LEGACIES/DEVISES

BALANE: We have already seen some of these rules in acceptance or renunciation of the inheritance
1. ACCEPTANCE MAY BE TOTAL OR PARTIAL
This is implied from Article 954, par. 1
EXCEPTION: If the legacy/devise is partly onerous and partly gratuitous, the recipient cannot accept the gratuitous
part and renounce the onerous part (Article 954, par. 1).
Any other combination however is permitted.
2. IN CASE THE LEGATEE/DEVISEE DIES BEFORE ACCEPTING OR RENOUNCING
If the legatee/devisee dies before accepting or renouncing, his heirs shall exercise such right as to their pro-indiviso
share, and in the same manner as outlined above.
3. IN CASE OF TWO LEGACIES/DEVISES TO THE SAME RECIPIENT
a. If both gratuitous or both onerous
The recipient may accept or renounce either or both.
b. If one gratuitous and the other onerous
The recipient cannot accept the gratuitous and renounce the onerous. Any other combination is permitted (Art.
955, par. 1)
4. IN CASE OF LEGACY/DEVISE TO ONE WHO IS ALSO A COMPULSORY HEIR
The recipient may accept either or both, the legacy/devise and the legitime. (Art. 955, par. 2, 1055)
5. EFFECT IF WILL PROVIDES OTHERWISE

All of the rules above (numbers 1-4) apply only in the absence of a stipulation in the will providing otherwise.
The testators wishes are supreme.
REPUDIATION BY OR INCAPACITY OF LEGATEE/DEVISEE
Article 956. If the legatee or devisee cannot or is unwilling to accept the legacy or devise, or if the legacy or
devise for any reason should become ineffective, it shall be merged into the mass of the estate, except in
cases of substitution and of the right of accretion. (888a)
In case of Repudiation by or Incapacity of Legatee/Devisee, the following shall take effect, in the order of preference:
1. Substitution
2. Accretion
3. Intestacy
If the these three things do not take effect, the legatee/devisee shall be merged into the mass of the estate (it goes by
intestacy)
GROUNDS FOR THE REVOCATION OF LEGACY/DEVISE BY OPERATION OF LAW
Article 957. The legacy or devise shall be without effect:

(1) If the testator transforms the thing bequeathed in such a manner that it does not retain either the form or
the denomination it had;
(2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being
understood that in the latter case the legacy or devise shall be without effect only with respect to the part
thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of
nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have
been effected by virtue of the exercise of the right of repurchase;
(3) If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir's
fault.
Nevertheless, the person obliged to pay the legacy or devise shall be liable for eviction if the thing
bequeathed should not have been determinate as to its kind, in accordance with the provisions of article 928.
(869a)
INSTANCES WHEN THE LEGACY/DEVISE IS REVOKED BY OPERATION OF LAW

1. TRANSFORMATION
Ex: The testator converts a plantation into a fishpond.
2. ALIENATION
The alienation by the testator may be onerous or gratuitous
The alienation revokes the legacy/devise even if for any reason the thing reverts to the testator.
This includes cases when the alienation is declared void or annulled.
Example: When the testator sells the thing to the legatee or devisee himself
EXCEPTIONS: In these cases, the devise/legacy is NOT revoked:
a. If the reversion is caused by the annulment of the alienation and the cause for annulment was vitiation of
consent on the grantors part, either by reason of incapacity or of duress. (Fernandez v. Dimagiba, 21
SCRA 428 [1967])
BALANE: This is an obvious exception because the testator had no intent to part with the property since he
merely alienated it under duress. The intent of the testator is the rationale here
b. If the reversion is by virtue of redemption in a sale with pacto de retro.
3. TOTAL FORTUITOUS LOSS
a. Loss before the testator's death
This will be a cause for revocation only if it takes place before the testators death.
If the loss is merely partial, the legacy will subsist as to what remains

a. Loss after the testator's death
Will NOT constitute revocation (despite the wording of par. 3 of this article, because legally the disposition takes
effect upon death (Art. 777).
Therefore, fortuitous loss after the testators death will simply be an instance of res perit domino'' and will be
borne by the legatee/devisee.
BALANE: How can you revoke it if it is vested already. This is gago. This is a case of res perit domino, the
legatee bears the loss because he is the owner, subject to the warranty against eviction in case of generic
legacies.
MISTAKE AS TO THE NAME OF THE THING AS DEVISE/LEGACY
Article 958. A mistake as to the name of the thing bequeathed or devised, is of no consequence, if it is
possible to identify the thing which the testator intended to bequeath or devise. (n)
Article 789. When there is an imperfect description, or when no person or property exactly answers the
description, mistakes and omissions must be corrected, if the error appears from the context of the will or
from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an
uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's
intention is to be ascertained from the words of the will, taking into consideration the circumstances under
which it was made, excluding such oral declarations. (n)
BALANE: Art. 958 is already set forth in Art. 789 (on rules of interpretation of wills)
DISPOSITION MADE IN GENERAL TERMS IN FAVOR OF THE TESTATOR'S RELATIVES
Article 959. A disposition made in general terms in favor of the testator's relatives shall be understood to be in
favor of those
BALANE: This article is misplaced here, because it applies not just to legatees/devisees but to all testamentary heirs as
well. This article should have been placed in Section 2 of this Chapter: Institution of Heir. This applies only in favor of
the testator's own relatives.
Who are these relatives?
The term relatives extends only up to the fifth degree (the limit in intestacy).
Belen v. BPI (109 Phil. 1008 [I960]) states in an obiter that ...the law [Art. 959] assumes that the testator intended
to refer to the rules of intestacy .
BALANE: But you dont apply the other rules intestacy, only the rule of proximity in degree up to the fifth degree
TOLENTINO AND PARAS: Intestacy in Philippine law stops with the fifth degree of consanguinity. Beyond that
degree, blood kinship is not recognized.
Institution of relatives of another person
TOLENTINO AND VITUG: The institution of relatives of another person, not of the testator, does not fall within the
ambit of this article. There is opinion to the effect that such an institution is void for vagueness
But it was held in Belen u. BPI, that an institution (by way of simple substitution, of the legatees descendientes
legitimos was valid and covered all legitimate descendants, i.e. children, grandchildren, etc. per capita, in accord
with Art. 846

CHAPTER 3: LEGAL OR INTESTATE SUCCESSION
SECTION 1: GENERAL PROVISIONS
WHEN INTESTATE SUCCESSION TAKES PLACE
Article 960. Legal or intestate succession takes place:

(1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such
case, legal succession shall take place only with respect to the property of which the testator has not
disposed;
(3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the
heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of
accretion takes place;
(4) When the heir instituted is incapable of succeeding, except in cases provided in this Code. (912a)
DEFINITION OF INTESTATE SUCCESSION

Intestate or legal succession takes place by operation of law, in the absence, of a valid will. (According to the Draft
Code, this draft provision was, however, inexplicably, deleted)
BALANE:
It is succession which takes place, IN DEFAULT OF, a valid will.
Remember the three modes of succession, Intestacy is the least preferred/important among the three, but is the
most common.
This is the most frequent kind of succession which operates, after compulsory succession, because Filipinos
rarely bother to make a will.
CAUSES OF INTESTACY UNDER ART. 960

BALANE: Number 1 refers to total intestacy, the other grounds, may be total or partial. Its total when theres no
testamentary disposition at all, partial when will disposes only part of it. Always remember to take into consideration
compulsory succession and the legitimes.
1. IF A PERSON DIES WITHOUT A WILL, OR WITH A VOID WILL, OR ONE WHICH HAS SUBSEQUENTLY LOST ITS VALIDITY
The three instances under this paragraph all contemplate the absence of a will, provided there is a free portion
a. There is no will
b. Will was void
c. Will has lost its validity
A will that has subsequently lost its validity is one that has been revoked without a later one taking its place.
BALANE: validity should read efficacy, because if a will is valid, it will always be valid. Only efficacy is
lost.
2. WHEN THE WILL DOES NOT INSTITUTE AN HEIR TO, OR DISPOSE OF ALL THE PROPERTY BELONGING TO THE TESTATOR
In such case, legal succession shall take place only with respect to the property of which the testator has not
disposed
Remember that a will which does not institute an heir is still valid (as disposition of property is not an essential
element of wills), but it is a useless will as far as succession is concerned.
BALANE: This is when the will does not dispose of the entire free portion, not the entire estate (as the provision
says) because the legitimes have to be respected.
3. IF THE SUSPENSIVE CONDITION ATTACHED TO THE INSTITUTION OF HEIR DOES NOT HAPPEN OR IS NOT FULFILLED
Intestacy here may also be total or partial, depending on the extent of the disposition that turns out to be
inoperative.
4. IF THE HEIR DIES BEFORE THE TESTATOR, OR REPUDIATES THE INHERITANCE, THERE BEING NO SUBSTITUTION, AND
NO RIGHT OF ACCRETION TAKES PLACE
This is when the instituted heir, devisee or legatee predeceases the testator in testamentary succession or there is
renunciation by the heir, provided substitution or accretion does not take place

Note that there is no right of representation in these cases
5. WHEN THE HEIR INSTITUTED IS INCAPABLE OF SUCCEEDING, EXCEPT IN CASES PROVIDED IN THIS CODE.
Intestacy here may also be total or partial
Incapacity to succeed is found in Articles 1027, 1028, and 1032.
OTHER CAUSES OF INTESTACY

6. Happening of a Resolutory Condition
7. Expiration of a Resolutory Term
8. Preterition
BASIC RULES OF INTESTACY
Article 961. In default of testamentary heirs, the law vests the inheritance, in accordance with the rules
hereinafter set forth, in the legitimate and illegitimate relatives of the deceased, in the surviving spouse, and
in the State. (913a)
Article 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the
right of representation when it properly takes place.
Relatives in the same degree shall inherit in equal shares, subject to the provisions of article 1006 with
respect to relatives of the full and half blood, and of article 987, paragraph 2, concerning division between the
paternal and maternal lines. (912a)
BASIC PRINCIPLES OF INTESTACY

Intestacy operates on the same principles as succession to the legitime.
There are two principles, operating sometimes simultaneously, sometimes singly: exclusion and concurrence.
The groups of intestate heirs and the different combinations in intestacy are outlined under Section 2 (Articles 978-
1010)
BALANE: Intestacy will be very easy if you know the legitimes
BASIS OF INTESTACY
The presumed will of the decedent, which would distribute the estate in accordance with the love and affection he
has for his family and close relatives, and in default of these persons, the presumed desire of the decedent to promote
charitable and humanitarian activities.
MANRESA: The law of intestacy is founded on the presumed will of the deceased. Love, it is said, first descends, then
ascends, and, finally, spreads sideways. Thus, the law first calls the descendants, then the ascendants, and finally the
collaterals, always preferring those closer in degree to those of remoter degrees, on the assumption that the deceased
would have done so had he manifested his last will. Lastly, in default of anyone called to succession or bound to the
decedent by ties of blood or affection, it is in accordance with his presumed will that his property be given to charitable
or educational institutions, and thus contribute to the welfare of humanity
WHO ARE THE INTESTATE HEIRS?

1. Legitimate children or descendants
2. Illegitimate children or descendants
3. Legitimate parents or ascendants
4. Illegitimate parents
5. Surviving spouse
6. Brothers and sisters, nephews and nieces
7. Other collateral relatives up to the fifth degree
8. The State.
Numbers 1 to 5 are both compulsory and intestate heirs
Numbers 6 to 8 are intestate heirs

BASIC RULES IN INTESTACY
1. RELATIONSHIP
You have to be related to the decedent to be an intestate heir
There are only four kinds of relationships of the decedent that will give rise to the status of intestate heir
a. Family (Jus Familial)
Relationship with his descendants and ascendants in the direct line
Generally, blood relationship, except for adopted
b. Blood (Jus Sanguinis)
Relationship with his collateral relatives (up to the fifth degree)
Always blood relationship
c. Spouse (Jus Conjugis)
Relationship with his spouse
Not a blood relationship
Relationship created by a valid or voidable marriage
d. State (Jus Imperii)
Relationship with the State
State as the last heir
2. PREFERENCE OF LINES
The three lines of relationship are:
a. The descending
b. The ascending; and
c. The collateral
The law lays down an order of preference among these lines
The descending excludes the ascending and the collateral
The ascending excludes the collateral.
BALANE: This is also true in compulsory succession. The descending is preferred over the ascending.
EXCEPTION: Illegitimate children/descendants do NOT exclude the legitimate parents/ascendants
3. PROXIMITY OF DEGREE
The nearer exclude the more remote (Article 962, par. 1), without prejudice to representation.
This applies to the descending and ascending line, but representation only takes place in the descending line.
It also applies to the collateral line, but there is only once instance where representation take place in this line,
this is in case of brothers and sisters, and nephews and nieces.
4. EQUALITY AMONG RELATIVES OF THE SAME DEGREE
This rule is a corollary of the previous one: If the nearer exclude the more remote, logically those of equal degree
should inherit in equal shares (Article 962, par. 2).
EXCEPTIONS:
a. The rule of preference of lines
Parents and children are both one degree, but the descending is preferred over the ascending
In fact, the descendant excludes the ascendants from inheriting, but if they are legitimate descendants
b. The distinction between legitimate and illegitimate filiation
They are governed by a ratio of 2:1 (Article 983, in relation to Article 895, as amended by Article 176, Family
Code)
c. The rule of division by line in the ascending line
This pertains to the paternal and maternal ascending line
Should there be more than one of equal degree belonging to the same ascending line (the grandparents and
higher) they shall divide the inheritance per capita; should they be of different lines but of equal degree, one-
half shall go to the paternal and the other half to the maternal ascendants. In each line the division shall be
made per capita. (Article 987, par. 2)
d. The distinction between full-blood and half-blood relationship among brothers and sisters, as well as
nephews and nieces
They are also governed by a ratio of 2:1 (Articles 1006 and 1008)
e. Representation
Heirs who inherit by right of representation will normally inherit in different shares, because the portioning is
NO per capita, but per stirpes
Those (grandchildren, etc) who will inherit by right of representation will not inherit in equal shares,
because it will depend on the number of grandchildren in relation of the children they stand to inherit

from by right of representation (persons representing will only inherit what the person to be represented
will inherit).
More on representation later :)
SUBSECTION 1: RELATIONSHIP
DETERMINATION OF LINES AND COMPUTATION OF DEGREES
Article 963. Proximity of relationship is determined by the number of generations. Each generation forms a
degree. (915)
Article 964. A series of degrees forms a line, which may be either direct or collateral.
A direct line is that constituted by the series of degrees among ascendants and descendants.
A collateral line is that constituted by the series of degrees among persons who are not ascendants and
descendants, but who come from a common ancestor. (916a)
Article 965. The direct line is either descending or ascending.
The former unites the head of the family with those who descend from him.
The latter binds a person with those from whom he descends. (917)
Article 966. In the line, as many degrees are counted as there are generations or persons, excluding the
progenitor.
In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the
parent, two from the grandfather, and three from the great-grandparent.
In the collateral line, ascent is made to the common ancestor and then descent is made to the person with
whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his
uncle, who is the brother of his father, four from his first cousin, and so forth. (918a)
BASIC CONCEPTS IN RELATIONSHIP

1. Concept of Degrees
This is the method of computing the proximity of relationship.
Proximity of relationship is determined by the number of generations, and each generation forms a degree.
BALANE: Just count the number of generations to get the number of degrees.
2. Concept of Lines
These are relative positions in the family between 2 persons
A series of degrees forms a line (Art. 964, par. 1)
RULES IN ART. 963-966; HOW TO DETERMINE THE LINES AND COMPUTING DEGREES IN INTESTACY
1. DETERMINATION OF LINES
a. Direct Line
That constituted by the series of degrees among ascendants and descendants. (Art. 964, par. 2)
i. Descending
Unites the head of the family with those who descend from him. (Art. 965)
ii. Ascending
Binds a person with those from whom he descends (Art. 965)
b. Collateral Line

That constituted by the series of degrees among persons who are not ascendants and descendants, but who
come from a common ancestor. (Art. 964, par. 3)
A collateral relative is any relative related to you by blood who is neither your descendant nor ascendant
(siblings, cousins, uncles and aunts)
2. COMPUTATION OF DEGREES
a. Direct line
There is NO legal limit to the number of degrees for entitlement to intestate succession
Theoretically, even the great-great-great grandfather is an intestate heir, assuming he is still living.
BALANE: Obviously, the practical limit is human mortality
Mode of Counting Degrees: One generation is one degree (Art. 966, par. 2)
First degree: parents and children
Second degree: Grandparents and grandchildren
Third degree: Great-grandparents and great-grandchildren
And so on, until infinity!
b. Collateral Line
The limit is five (5) degrees for intestate succession
Mode of Counting Degrees (Article 966, par. 3)
i. From one reference point, ascend to nearest common ancestor (If there are more than one nearest
common ancestor, choose any one)
ii. Then, descend to the other reference point.
iii. Number of generations constituting the ascent and the descent is the degree of collateral
relationship.
BALANE: The roman system is more simpler, just draw a line to the nearest collateral relative (who is the
sibling) and thats one degree. We follow the german system which is more complicated, you need to go
to the ascending line first to get to the collateral line. Count first the nearest common ancestor (if there
are more than one, choose one). Because of this way of counting, the nearest collateral is at least two
degrees, never one degree. (your sibling is two degrees from you)
Collaterals by degree
First degree: None
Second degree: Siblings (brothers and sisters)
Third degree:
i. Uncles and aunts
ii. Nephews and nieces
Fourth degree:
i. First cousins
ii. Siblings of a grandparent (grand-uncles and grand-aunts)
iii. Grandchildren of a sibling (grand-nephews and grand-nieces)
Fifth degree:
i. Children of first cousin
ii. First cousins of a parent
iii. Siblings of great-grandparent
iv. Great-grandchildren of a sibling
BASIC RULES IN RELATIONSHIP

These rules are the reason why its important to know the degrees and lines!
1. NEARER EXCLUDES THE MORE REMOTE
Children will exclude grandchildren (qualified by representation of course)
2. THE DIRECT IS PREFERRED OVER THE COLLATERAL.
Parents or children are preferred over siblings
2. IN THE DIRECT LINE, THE DESCENDING IS PREFERRED OVER THE ASCENDING
Children are preferred over parents

FULL AND HALF-BLOOD RELATIONSHIP
Article 967. Full blood relationship is that existing between persons who have the same father and the same
mother.
Half blood relationship is that existing between persons who have the same father, but not the same mother,
or the same mother, but not the same father. (920a)
Full or half-blood relations is only material for certain collateral relatives, particularly the brothers and sisters
and nephews and nieces
There is a ratio of 2:1 for full-blood and half-blood relationship respectively (Articles 1006 and 1008).
With respect to other collateral relatives, the full-blood and half-blood relationship is not material.
RIGHT OF ACCRETION IN INTESTACY
Article 968. If there are several relatives of the same degree, and one or some of them are unwilling or
incapacitated to succeed, his portion shall accrue to the others of the same degree, save the right of
representation when it should take place. (922)
Article 1015. Accretion is a right by virtue of which, when two or more persons are called to the same
inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or who
died before the testator, is added or incorporated to that of his co-heirs, co-devisees, or co-legatees. (n)
APPLICABILITY OF ART. 968; WHEN ACCRETION OPERATES IN INTESTACY

All the following requisites must be present:
1. IN INTESTATE SUCCESSION
No accretion in compulsory succession
In testamentary succession, its covered under Art. 1022
2. HEIRS OF THE SAME DEGREE
Note that the heirs must be in the same kind of relationship
For accretion to take place the heirs involved must be in the same kind of relationship to the decedent, inheriting
together (must be all siblings, or all children, etc.)
This is because of the principle of preference of lines in intestate succession.
Thus, there can be no accretion among a grandchild, a grandparent and a brother of the decedent (even if they
are all related to him in the second degree) because they are not inheriting together in the first place.
3. SOME HEIRS ARE DISQUALIFIED OR ARE UNWILLING TO INHERIT
a. Predecease
b. Incapacity, or
c. Renunciation
Note that only some of the heirs are disqualified or unwilling to inherit. If ALL of them are disqualified or unwilling,
then Art. 969 applies instead.
4. REPRESENTATION DOES NOT OPERATE
Instances when Representation does NOT operate:
1. Renunciation or Unwillingness
2. In the direct ascending line
3. In the collateral line
EXCEPT: In intestate succession, representation only operates in the collateral line in favour of nephews
and nieces (representing their parents, who are the siblings of the decedent) (Art. 975)
EXCEPTION TO EXCEPTION: In intestate succession, representation will NOT operate in favour of the
nephews and nieces, if ALL the siblings of the decedent are disqualified to inherit. (Art. 975)
4. In cases of adopted children
In case of predecease or incapacity, representation, if proper, will prevent accretion from occurring.
No accretion if there is representation (such as if predecease or incapacity in the descending line)

BUT note that accretion will be proper, in favour of the heirs of the same degree, if there is no representation
(meaning the predeceased or incapacitated heirs have no children)
Example: A has three sons, X, Y, and Z. A dies without a will. X is childless. For compulsory/intestate purposes,
if X in disinherited (or incapacitated or predeceases) then the share of X will go to Y and Z by right of accretion,
because representation will not take place. If however, X has a child, then his share will go to his son by right of
representation, accretion will not take place.
Accretion is more relevant in renunciation, because there is no representation is renunciation.
Example: A has three sons, X, Y and Z. Z has children. A dies without a will. For compulsory/intestate purposes,
if Z renounces his share, then Zs children cannot inherit (because they are excluded by nearer descendants X
and Y, and they cant inherit by representation because there is no representation in renunciation), thus, Zs
share will accrue by right of accretion to the other heirs of the same degree, X and Y.
RULE IN CASE OF ACCRETION

The portion of the disqualified or unwilling heir shall accrue to the others of the same degree and kind (those
inheriting together with him) (Art. 968)
The part assigned to the one disqualified/unwilling to inherit (meaning he renounces or cannot receive his share, or
who died before the testator) is added or incorporated to that of his co-heirs, co-devisees, or co-legatees (Art. 1015)
RENUNCIATION BY ALL IN THE SAME DEGREE
Article 969. If the inheritance should be repudiated by the nearest relative, should there be one only, or by all
the nearest relatives called by law to succeed, should there be several, those of the following degree shall
inherit in their own right and cannot represent the person or persons repudiating the inheritance. (923)
Article 977. Heirs who repudiate their share may not be represented.
EFFECT OF RENUNCIATION BY ALL NEAREST RELATIVES IN THE SAME DEGREE

RULE: IF THE INHERITANCE IS REPUDIATED (RENOUNCED) BY THE ALL THE NEAREST HEIRS IN THE SAME DEGREE, THE
RIGHT OF SUCCESSION SHOULD FIRST BE PASSED ON THE HEIRS IN SUCCEEDING DEGREES (IN THE SUCCESSIONAL
ORDER) BEFORE THE NEXT LINE CAN SUCCEED, BECAUSE OF THE RULE OF PREFERENCE OF LINES.
Note that it must be ALL (who will renounce) because if not, then the right of accretion in Art. 968 applies, in favor of
the others (who did not renounce) of the same kind and degree
Successional Order:
1. The descending line first
If all the descendants of a certain degree renounce, succession passes to the descendants of the next degree,
and so on, ad indefinitum
2. The ascending line next
Should no one be left in the descending line, the heirs in the ascending acquire the right of succession, again in
order of degrees of proximity
3. The collateral line last
Only if all the descendants and ascendants renounce will the collateral relatives acquire the right to succeed.
PREDECEASE OR INCAPACITY BY ALL IN THE SAME DEGREE

This eventuality is not provided for by this article.
The rules outlined above, however, are equally applicable to such a situation, EXCEPT in cases where representation
is proper (such as in the descending line)
Remember that representation does not apply in cases of universal renunciation outlined above, because there is no
representation in renunciation (Art. 977)

CHAP. 3: LEGAL OR INTESTATE SUCCESSION; SEC. 1: GENERAL PROVISIONS
SUBSECTION 2: RIGHT OF REPRESENTATION
Summary of Rules in Art. 968 and 969
Art. 968 Art. 969
When it applies 1. Renuncation by SOME heirs of the same 1. Renunciation by ALL heirs of the same degree
degree (universal renunciation)
2. Predecease or Incapacity of SOME heirs of 2. Predecease or Incapacity of ALL heirs of the
the same degree when representation does same degree when representation does NOT
NOT operate operate (universal predecease or incapacity)
(This is not explicitly provided for in Art. 869 but
according to Balane it is covered)
Who will inherit Heirs of the Same Kind and Degree (those who Next heirs in the successional order
instead? inherit together)
Basis of inheriting Right of Accretion By their own right, as the nearest heirs
heirs
Example Renuncation by SOME heirs of the same Renunciation by ALL heirs of the same degree
degree A has three sons, X, Y and Z. X, Y and Z have
A has three sons, X, Y and Z. Z has children. their own children. If they X, Y and Z ALL
A dies without a will. For compulsory/ renounce their inheritance, then their shares will
intestate purposes, if Z renounces his share, go to their children, not by representation, but by
then Zs children cannot inherit (because virtue of their own right, as their heirs in the
they are excluded by nearer descendants X nearest degree according to the successional
and Y, and they cant inherit by order.
representation because there is no
representation in renunciation), thus, Zs
share will accrue by right of accretion to the
other heirs of the same degree, X and Y.
Finally, this is where representation will be discussed, after being constantly cited all throughout from the start @_@
Article 970. Representation is a right created by fiction of law, by virtue of which the representative is raised
to the place and the degree of the person represented, and acquires the rights which the latter would have if
he were living or if he could have inherited. (942a)
Article 971. The representative is called to the succession by the law and not by the person represented. The
representative does not succeed the person represented but the one whom the person represented would
have succeeded. (n)
Article 972. The right of representation takes place in the direct descending line, but never in the ascending.
In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the
full or half blood. (925)
Article 973. In order that representation may take place, it is necessary that the representative himself be
capable of succeeding the decedent. (n)
Article 974. Whenever there is succession by representation, the division of the estate shall be made per
stirpes, in such manner that the representative or representatives shall not inherit more than what the person
they represent would inherit, if he were living or could inherit. (926a)
Article 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from
the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall
inherit in equal portions. (927)

Article 976. A person may represent him whose inheritance he has renounced. (928a)
Article 977. Heirs who repudiate their share may not be represented. (929a)
DEFINITION OF REPRESENTATION
Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and
the degree of the person represented, and acquires the rights which the latter would have if he were living or if he
could have inherited. (Art. 970)
Criticisms on this statutory definition (According to JBL Reyes)
1. The term representation is erroneous, it should be called subrogation instead
It has been suggested that a better term to call this legal process is either hereditary subrogation or
successional subrogation, because the person inheriting in anothers stead actually represents no one and truly
succeeds in his own right
BALANE: Representation is a case of agency, where one who acts in behalf of another. Representation
involves an agent who acts on behalf of a principal, where the formers acts are considered the latters own. In
representation in succession, the heirs (who will represent) are really placed in the position of the heirs (who
will be represented) in their own right, thus it is really a case of substitution or subrogation. But because the law
calls it representation we will call it that.
2. The right is not created by fiction of law, rather, it is created directly by law
The law has ample authority to pre- determine who are to be called to inherit; It needs no resort to fictions, but
to merely make use of its power to designate those who are to take the inheritance
BALANE: Representation is a right because the law says so, period.
Instances when Representation Operates
As to the Grounds As to the Kind of As to the Lines As to the Child Represented

for Disqualification Succession
1. Predecease 1. Compulsory In Compulsory Succession If the child to be represented is

Incapacity Succession 1. In the direct descending line only (Art. LEGITIMATE
2.
972) Only legitimate children/
3. Disinheritanc 2. Intestate
e Succession descendants can represent him
In Intestate Succession
(Art. 992)
1. In the direct descending line (Art. 972)
Representation Note that there is 2. In the collateral line, but only in favour
If the child to be represented is
operates when the no express of nephews and nieces (Art. 975)
ILLEGITIMATE
Representing their parents (who are
heir is disqualified provision on Both legitimate and illegitimate
the siblings of the decedent)
from inheriting, representation in This is the only case of children/descendants can
and the causes for the legitime, representation in the collateral line represent him (Art. 902, 989,
disqualification except Art. 923, in EXCEPTION: If ALL the siblings of 990)
may only be these case of the decedent are disqualified to
inherit, then representation does
three. disinheritance BALANE: This is the rule for both
NOT operate in favour of the
(Art. 981, 1035, nephews and nieces, but rather compulsory and intestate
923) they will all inherit in their own right, succession. No reason or logic for
per capita. (Art. 975) the distinction, it's just what the law
says. Note that illegitimate children
are preferred here.
INSTANCES WHEN REPRESENTATION DOES NOT OPERATE

1. RENUNCIATION OR UNWILLINGNESS (TO INHERIT)
See Art. 977
Representation NEVER operates in renunciation

In this case, what operates is either: Art. 968 on right of accretion (if some of the heirs of the same degree
renounce) or Art. 969 on the rule on successional order and preference (if all of the heirs of the same degree
renounce)
But note that although a renouncer cannot be represented, he can represent the person whose inheritance he has
renounced (Article 976).
In other words, the renouncer can represent but can never be represented.
The reason for this is found in Article 971 (2nd sentence): The representative does not succeed the person
represented but the one whom the person represented would have succeeded.
Example:
A has a son B, B has a son C, and C has a son D. Note that there are four generations here. When B dies,
C renounces his inheritance from B. Later, A dies. C can still inherit from A by virtue of representing B. When
C renounced, he only renounced his share from B, not A. But, D cannot represent C and inherit from B.
Thus, the renouncer C can represent B but he cannot be represented by D.
2. TESTAMENTARY SUCCESSION
See Art. 856
Representation only operates in compulsory and intestate succession
If the testator provides that in case the instituted heir (or devisee or legatee) cannot inherit from him (due to
predecease, incapacity, disinheritance), another person will represent him or inherit instead, this is a case of
substitution, NOT representation.
Example: A makes a will, instituting X to 1/3 of his estate, and provides that if X dies before him, the son of X,
will represent him. The son of X will inherit by virtue of substitution, not representation.
3. IN THE DIRECT ASCENDING LINE
4. IN THE COLLATERAL LINE
EXCEPT: In intestate succession (not compulsory), representation only operates in the collateral line in favour of
nephews and nieces (representing their parents, who are the siblings of the decedent) (Art. 975)
EXCEPTION TO EXCEPTION: In intestate succession, representation will NOT operate in favour of the
nephews and nieces, if ALL the siblings of the decedent are disqualified to inherit. (Art. 975)
In this case the nephews and nieces will not inherit by representation, but in their own right, per capita.
5. IN CASES OF ADOPTED CHILDREN
An adopted can neither represent nor be represented
This applies to both compulsory and intestate succession
This is because the relationship created by adoption only extends to the adopter and adopted.
It does not extend to their respective relatives.
TEOTICO VS. DEL VAL 13 SCRA 406 (1965)
Under our law the relationship established by adoption is limited solely to the adopter and the adopted and does
not extend to the relatives of the adopting parents or of the adopted child except only as expressly provided for
by law. Hence, no relationship is created between the adopted and the collaterals of the adopting parents.
As a consequence, the adopted is an heir of the adopter but not of the relatives of the adopter.
The relationship established by the adoption, however, is limited to the adopting parent, and does not extend to
his other relatives, except as expressly provided by law.
Thus, the adopted child cannot be considered as a relative of the ascendants and collaterals of the adopting parents,
nor of the legitimate children which they may have after the adoption, except that the law imposes certain impediments
to marriage by reason of adoption.
Neither are the children of the adopted considered as descendants of the adopter. The relationship created is
exclusively between the adopter and the adopted, and does not extend to the relatives either.
Relationship by adoption is limited to adopter and adopted, and does not extend to other members of the family of
either; but the adopted is prohibited to marry the children of the adopter to avoid scandal.
BALANE: The rationale for the rule barring an adopted from representing and being represented is that the legal
relationship created by adoption is strictly between the adopter and the adopted. It does not extend to the relatives of
either party.
SAYSON V. CA, 205 SCRA. 321 (1992)
While it is true that the adopted child shall be deemed to be a legitimate child and have the same right as the
latter, these rights do not include the right of representation.
The relationship created by the adoption is between only the adopting parents and the adopted child and does
not extend to the blood relatives of either party

PARTIES IN REPRESENTATION
1. Decedent
2. Person represented
Person who fails to inherit due to certain ground (predecease, incapacity, etc)
3. Representative
Person who inherits by right of representation
HOW REPRESENTATION OPERATES

RULE: IT OPERATES PER STIRPES
This means that the representative or representatives receive only what the person represented would have
received
In other words, representation operates in such manner that the representative or representatives shall not
inherit more than what the person they represent would inherit, if he were living or could inherit. (Art. 974)
If there are more than one representative in the same degree, then divide the portion equally, without prejudice to
the distinction between legitimate and illegitimate children, when applicable
Distinguish this from per capita which involves proportionate sharing.
BALANE: per stirpes means through the roots, meaning the representative will only get what the root would have
gotten.
Example:
A has 3 children, X, Y and Z. X has 2 children X1 and X2. If X dies before A (or is incapacitated or disinherited),
then X1 and X2 will inherit from A by right of representation. Once A dies, the portioning is 1/3 to Y, 1/3 to Z and
1/3 collectively to X1 and X2 (because they will receive only what the person represented would have received,
per stirpes, not per capita), they will then share the 1/3 equally, or 1/6 each.
A has 2 children, B and C. B has 1 child, B1, while C has two children C1 and C2. B and C predeceases A.
When A dies, the three grandchildren will NOT inherit equally, because representation operates per stirpes, the
representatives receive only what the person represented would have received. Thus, B1 would get 1/2 and C1
and C2 will get 1/4 each (as they divide equally the share of their father C)
Remember of course the rules and portioning in legitime and intestacy
Note the difference in the rule in case of disqualification of all children and all siblings (of the decedent)
1. If ALL the children (of the decedent) are disqualified
The grand-children still inherit by representation, per stirpes (Article 982).
This is the rule is all or some of the children are disqualified.
2. If ALL the brothers/sisters (of the decedent) are disqualified
The nephews/nieces do NOT inherit by representation, but by their own right as the next heirs preferred
in the successional line
Meaning they will inherit per capita, or in equal portions (Article 975).
In other words, parang Art. 869 din yung application (note that Art. 869 does not apply when
representation operates)
Note that ALL the siblings of the decedent must be disqualified to inherit for per capita portioning to apply
(due to predecease, incapacity, or disinheritance)
If only some of the siblings of the decedent are disqualified, then the nephews and nieces will inherit by
representation, and thus, per stirpes.
RULES IN REPRESENTATION
1. THE REPRESENTATIVE MUST BE QUALIFIED TO SUCCEED THE DECEDENT (ARTICLE 973).
This is because the representative succeeds the decedent (the one whom the person represented would have
succeeded), NOT the person represented. (Art. 971)
Thus, the representative must be alive when the decedent dies
2. THE REPRESENTATIVE NEED NOT BE QUALIFIED TO SUCCEED THE PERSON REPRESENTED
This is because the representative does not succeed the person represented (Art. 971)
3. THE PERSON REPRESENTED NEED NOT BE QUALIFIED TO SUCCEED THE DECEDENT
In fact, the reason why representation is taking place is that the person represented is not qualified (due to
predecease, incapacity, or disinheritance)
If the person represented is qualified to succeed, then representation does not operate duh

SECTION 2: ORDER OF INTESTATE SUCCESSION
INTESTATE HEIRS
WHO ARE THE INTESTATE HEIRS?

1. Legitimate children or descendants
2. Illegitimate children or descendants
3. Legitimate parents or ascendants
4. Illegitimate parents
5. Surviving spouse
6. Siblings (brothers and sisters), nephews and nieces
7. Other collateral relatives up to the fifth degree
8. The State.
Numbers 1 to 5 are also compulsory heirs.
Numbers 6 to 8 are intestate heirs only
BALANE:
Generally, the first five groups (1-5) will EXCLUDE the last 3 groups (6-8). Meaning the existence of any
compulsory heirs will exclude the last three groups (who are not compulsory heirs) from inheriting. The only
exception is that number 5 (the surviving spouse), will not exclude number 6 (the siblings and nephews and nieces)
Because of the overlapping of compulsory and intestate heirs, there is, to a considerable extent, an overlapping of
compulsory and intestate succession, the legitime and the intestate portions merge. Also, because of this, there is a
very close parallel between the rules of compulsory succession and those of intestate succession.
EXCLUSION AND CONCURRENCE OF INTESTATE HEIRS; COMBINATIONS IN INTESTATE SUCCESSION
Summary of the Rules of Exclusion and Concurrence of Intestate Heirs
GROUP OF WHO THEY EXCLUDE WHO THEY CONCUR WITH WHO EXCLUDES THEM
INTESTATE HEIRS
1. Legitimate Children 1. Legitimate or Illegitimate 1. Surviving Spouse No one

Parents 2. Illegitimate Children
2. Collaterals
3. State
2. Illegitimate 1. Illegitimate Parents 1. Legitimate Children No one

Children 2. Collaterals 2. Legitimate Parents
3. State 3. Surviving Spouse
3. Legitimate Parents 1. Collaterals 1. Surviving Spouse Legitimate Children

2. State 2. Illegitimate Children
4. Illegitimate Parents 1. Collaterals Surviving Spouse 1. Legitimate Children

2. State 2. Illegitimate Children
5. Surviving Spouse 1. Collaterals other than siblings, 1. Legitimate Children No one

nephews and nieces 2. Illegitimate Children
2. State 3. Legitimate Parents
4. Illegitimate Parents
5. Siblings, nephews and
nieces
6. Siblings, Nephews 1. All other collaterals Surviving Spouse 1. Legitimate Children

and Nieces 2. State 2. Illegitimate Children
3. Legitimate Parents
* Note that nephews/nieces exclude 4. Illegitimate Parents
uncles/aunts, though all are 3rd
degree relatives.

GROUP OF WHO THEY EXCLUDE WHO THEY CONCUR WITH WHO EXCLUDES THEM
INTESTATE HEIRS
7. Other Collaterals 1. Collaterals in remoter degrees Collaterals in the same degree 1. Legitimate Children
(up to the fifth (those nearer collaterals exclude 2. Illegitimate Children
degree) more remote collaterals) 3. Legitimate Parents
2. State 4. Illegitimate Parents
5. Surviving Spouse
6. Siblings, nephews and
nieces
8. The State No one No one Everyone (of the intestate heirs)
Like the legitime, intestacy operates in rules of exclusion and concurrence. Know the heirs who will exclude the others
and concur with others. Inversely, know the heirs who are excluded by the existence of the other heirs.
Note under the table above:
Legitimate children include legitimate descendants and adopted children
Illegitimate children include illegitimate descendants
Legitimate parents include legitimate ascendants and adopted parents
Illegitimate parents DO NOT INCLUDE illegitimate ascendants (you do not go beyond the illegitimate parents)
The State is always the last intestate heir. Thus, a person will always have an intestate heir.

Combinations in Intestate Succession
HEIRS LEGITIME INTESTATE (FREE) PORTION TOTAL PORTION BASIS
1. Legitimate
The whole estate, divided Art. 979
Children
equally
2. Illegitimate
Art. 988
Children *The rule in case of a
1/2 of the estate
surviving spouse and the
3. Legitimate marriage, being in articulo Art.
*But, 1/3 only in the case of
Parents mortis falling under Art. 900, 985,
a surviving spouse and the 1/2 of the estate
par. 2 becomes irrelevant 987
marriage, being in articulo
now since total intestacy
mortis falling under Art. 900,
4. Surviving operates. Art.
par. 2
Spouse 994,
* For the legitimate 995
ascendants, observe the
5. Illegitimate rule of division by line Art. 993
Parents
6. Legitimate Art.
Siblings 1004,
The whole estate, divided equally. But in case of full or half-blood 1006
siblings, proportion of 2:1 applies (half-blood sibling gets only
7. Illegitimate 1/2 of the share of a full-blood sibling) By
Siblings analogy
*The 2:1 rule also applies to full or half-blood nephews and nieces with Art.
1004,
*Note that for nephews and nieces, they are NOT inheriting by 1006
representation but rather, in their own right, as there is no sibling (Art.
8. Nephews and 975) Art.
None
Nieces 975,
1008
9. Other The whole estate, divided equally, between those of the same
Collaterals (up to degree. But observe the rule that the nearer in degree excluding
Art.
the fifth degree) the more remote
1009,
1010
*Note also that there is no representation nor full or half-blood
distinction for the other collateral relatives
10. State Art.

The whole estate
1011
11. Legitimate a. Legitimate Children: 1/2 a. If legitimes do not exceed the The whole estate, each
Children and of the estate estate: Apportion the free portion illegitimate child getting 1/2
Illegitimate between the children, but each the share of one legitimate
Children b. Illegitimate Children: illegitimate child get only 1/2 the child.
Each will get 1/2 of share of one legitimate child.
share of one legitimate b. If legitimes exceed the estate:
child No free portion (The legitime
prevails over intestacy, since you
Art.
dont even have enough for the
983,
legitimes, intestacy will not apply)
Art. 176
of the
*This is a case where there may be no
Family
free portion as the legitimes may
Code
exceed the entire estate. Get the
legitimes first to determine whether it
has been impaired, in order to know
whether there is a free portion that will
pass by intestacy. Remember that in
this case, a proportionate reduction
must be made against the illegitimate
children

12. Legitimate a. Legitimate Children: 1/2 Apportion the free portion equally The whole estate, divided
Children and of the estate between the legitimate children and equally (the surviving
Surviving the spouse (the surviving spouse spouse counted as one
Spouse b. Surviving Spouse: counted as one legitimate child) legitimate child)
Share equal to that of
Art. 996
one child *But if only one legitimate child, then *If only one legitimate child,
the entire free portion of 1/4 is given to then the child gets 1/2, the
*But if only one legitimate the surviving spouse (meaning the surviving spouse gets the
child, then legitime of spouse spouse is beneficiary of the entire other half
is 1/4 of the estate only intestate portion)
13. Legitimate a. Legitimate Children: 1/2 a. If legitimes do not exceed the The whole estate, the
Children, of the estate estate: Apportion the free portion surviving spouse being
Illegitimate between the children, but each counted as one legitimate
Children, and b. Illegitimate Children: illegitimate child get only 1/2 the child and each illegitimate
Surviving Each will get 1/2 of share of one legitimate child. The child getting 1/2 the share of
Spouse share of one legitimate surviving spouse is counted as one legitimate
child one legitimate child
b. If legitimes exceed the estate:
c. Surviving Spouse: No free portion (The legitime
Art. 999
Share equal to that of prevails over intestacy, since you
and Art.
one legitimate child dont even have enough for the
176 of
legitimes, intestacy will not apply)
the
*But if only one legitimate
Family
child, then legitime of spouse *This is the other case where there
Code
is 1/4 of the estate only may be no free portion as the legitimes
may exceed the entire estate. Get the
legitimes first to determine whether it
has been impaired, in order to know
whether there is a free portion that will
pass by intestacy. Remember that in
this case, a proportionate reduction
must be made against the illegitimate
children
14. Legitimate a. Legitimate Parents: 1/2 a. Legitimate Parents: None a. Legitimate Parents: 1/2
Parents and of the estate of the estate
Illegitimate b. Illegitimate Children: 1/4 of the Art. 991
Children b. Illegitimate Children: estate b. Illegitimate Children:
1/4 of the estate 1/2 of the estate
Parents and of the estate of the estate
Surviving b. Surviving Spouse: 1/4 of the Art. 997
Spouse b. Surviving Spouse: 1/4 estate b. Surviving Spouse: 1/2
of the estate of the estate
Parents, of the estate of the estate
Illegitimate b. Illegitimate Children: None
Children, and b. Illegitimate Children: b. Illegitimate Children: Art.
Surviving 1/4 of the estate c. Surviving Spouse: 1/8 of the 1/4 of the estate 1000
Spouse estate
c. Surviving Spouse: 1/8 c. Surviving Spouse: 1/4
of the estate of the estate
17. Surviving a. Surviving Spouse: 1/3 a. Surviving Spouse: 1/6 of the a. Surviving Spouse: 1/2
Spouse and of the estate estate of the estate
Illegitimate Art. 998
Children b. Illegitimate Children: b. Illegitimate Children: 1/6 of the b. Illegitimate Children:
1/3 of the estate estate 1/2 of the estate

18. Surviving a. Surviving Spouse: 1/4 a. Surviving Spouse: 1/4 of the a. Surviving Spouse: 1/2
By
Spouse and of the estate estate of the estate
analogy
Illegitimate
with Art.
Parents b. Illegitimate Parents: 1/4 b. Illegitimate Parents: 1/4 of the b. Illegitimate Parents: 1/2
997
of the estate estate of the estate
19. Surviving a. Surviving Spouse: 1/2 a. Surviving Spouse: None a. Surviving Spouse: 1/2
Spouse and of the estate of the estate
Legitimate b. Legitimate Siblings, Nephews
Siblings, b. Legitimate Siblings, and Nieces: 1/2 of the estate b. Legitimate Siblings,
Nephews and Nephews and Nieces: Nephews and Nieces:
Art.
Nieces None *Note that the legitimate nephews and 1/2 of the estate
1001
nieces are inheriting either by
representation (if they inherit with
legitimate siblings) or in there own
right (there is no legitimate sibling)
(See Art. 975)
20. Surviving a. Surviving Spouse: 1/2 a. Surviving Spouse: None a. Surviving Spouse: 1/2
Spouse and of the estate of the estate
Illegitimate b. Illegitimate Siblings, Nephews
Siblings, b. Illegitimate Siblings, and Nieces: 1/2 of the estate b. Illegitimate Siblings,
Nephews and Nephews and Nieces: Nephews and Nieces:
Nieces None *Note that the illegitimate nephews 1/2 of the estate
and nieces are inheriting either by
representation (if they inherit with
illegitimate siblings) or in there own
right (there is no illegitimate sibling)
(See Art. 975)
Art. 994
*Who are illegitimate siblings? These
are the siblings of an illegitimate
decedent. When the law speaks of
brothers and sisters, nephews and
nieces as legal heirs of an illegitimate
child, it refers to illegitimate brothers
and sisters as well as to the children,
whether legitimate or illegitimate, of
such brothers and sisters (relate this
with the iron curtain rule in Art. 992)
21. Legitimate
Siblings, The whole estate, divided equally. But in case of full or half-blood Art.
Nephews and siblings, proportion of 2:1 applies (half-blood sibling gets only 1/2 of 1005,
Nieces the share of a full-blood sibling) 1008
None *The 2:1 rule also applies to full or half-blood nephews and nieces
22. Illegitimate By
Siblings, *Note that the legitimate nephews and nieces are inheriting either by analogy
Nephews and representation (if they inherit with legitimate siblings) or in there own , Art.
Nieces right (there is no legitimate sibling) (See Art. 975) 1005,
1008
Note under the table above:

Legitimate children include legitimate descendants and adopted children
Illegitimate children include illegitimate descendants
Legitimate parents include legitimate ascendants and adopted parents
Illegitimate parents DO NOT INCLUDE illegitimate ascendants (you do not go beyond the illegitimate parents)
Note these certain rules of exclusion :
1. Children of any kind EXCLUDE illegitimate parents (Art. 993)
2. Nephews and nieces EXCLUDE uncles and aunts (Art. 1009 and Bacayo v. Borromeo 1986) (This is another
exception to the rule that relatives of the same degree inherit equally.

PARTIAL INTESTACY
BALANE:
The problem of partial intestacy is an unnecessary one. There is a problem because the civil code does not provide for
such situation. This is the bad news. The good news is that all the major commentators have a similar solution, which is
the most logical.
The combinations laid down by the preceding articles (978-1014) cover only cases of total intestacy. Nowhere in this
Chapter or elsewhere can one find provisions to govern cases of partial intestacy; Instances where the decedent has
left a will disposing of part, but not all, of the disposable portion. How then should the estate be divided if the
decedent died with a will but the will does not dispose of the entire free or disposable portion?
The problem is solved by inference, bearing in mind the laws intent, thus:
1. Trace where the intestate or free portion went in total intestacy.
2. Since part of that free portion was disposed of by will, the testamentary provision should be carried out,
and what is left of the free portion should then be given to the intended beneficiary in intestacy.
RULE: TRACE WHERE THE INTESTATE/FREE PORTION WILL GO IN TOTAL INTESTACY, THE REMAINING FREE PORTION
IN PARTIAL INTESTACY (AFTER DEDUCTING TESTAMENTARY DISPOSITIONS) WILL BE DISPOSED ACCORDING TO SUCH
PROPORTION
This involves comparing the legitime portion and intestate portion in relation to the total portion each heir or group of
heir will get in total intestacy (see table of total intestacy above)
Where the free portion will go, in total intestacy, can be generalised into these classes, thus in partial intestacy,
it will also go accordingly
1. INTESTATE (FREE) PORTION IS ENTIRELY GIVEN TO ONE OR ONE GROUP OF INTESTATE HEIR
Thus, in partial intestacy the remaining free potion will also be disposed to the one heir or group of heir in these
cases
a. When there is only one or one group of intestate heir
Obviously, since they are the only remaining intestate heirs, meaning they do not concur with other groups,
then the entire free portion is given to them
Such as, if the only intestate heirs are the legitimate children alone, or legitimate parents alone, or the
brothers and sisters alone, etc.
b. Legitimate Child and Surviving Spouse
Entire free portion is given to the surviving spouse
c. Legitimate Parents and Illegitimate Children
Entire free portion is given to Illegitimate children
d. Legitimate Parents and Surviving Spouse
e. Legitimate Parents, Illegitimate Children, and Surviving Spouse
f. Surviving Spouse and Legitimate Siblings, Nephews and Nieces
Entire free portion is given to the legitimate siblings, nephews and nieces
g. Surviving Spouse and Illegitimate Siblings, Nephews and Nieces
Entire free portion is given to the illegitimate siblings, nephews and nieces
Example: The net estate of A is 12 million. His compulsory heirs are his legitimate parents, and surviving spouse.
Then A institutes a third person to 1/8 of his estate. If A dies, you cannot divide the 12 million into 1/2 to parents (as
legitime), 1/4 to spouse (as legitime) and 1/8 to third person. Where will the remaining intestate portion of 1/8 go?
To the spouse alone. Why? since under Art. 997, if it had been total intestacy, the entire free portion would have
gone solely to the spouse, thus, in partial intestacy, the free portion should also go solely to the spouse.
BALANE: The obvious intention of the law is to give it the free portion to the spouse. whats left of the free
portion should go to the intestate heir to whom it is meant to go if there was no will (in total intestacy).
2. INTESTATE PORTION IS EQUALLY DIVIDED TO BETWEEN THE INTESTATE HEIRS
Thus, in partial intestacy the remaining free portion will also be disposed equally to such group of heirs
a. Legitimate Children and Surviving Spouse
b. Surviving Spouse and Illegitimate Children
c. Surviving Spouse and Illegitimate Parents
d. Legitimate Siblings, Nephews and Nieces (unless there are full-blood and half-blood)
e. Illegitimate Siblings, Nephews and Nieces (unless there are full-blood and half-blood)

3. INTESTATE PORTION IS DIVIDED BETWEEN THE INTESTATE HEIRS IN DIFFERENT PROPORTIONS (2:1 PROPORTION)
Thus, in partial intestacy the remaining free potion will also be disposed of in a 2:1 proportion to such group of
heirs (illegitimate or half-blood get only 1/2 of what legitimate or full-blood gets)
a. Legitimate Children and Illegitimate Children
b. Legitimate Children, Illegitimate Children, and Surviving Spouse
c. Legitimate Siblings, Nephews and Nieces (if there are full-blood and half-blood)
d. Illegitimate Siblings, Nephews and Nieces (if there are full-blood and half-blood)
Partial Intestacy: To whom will the remaining free portion be given?
FREE PORTION GIVEN TO ONE OR FREE PORTION DIVIDED EQUALLY FREE PORTION DIVIDED 2:1
ONE GROUP OF INTESTATE HEIR BETWEEN THE INTESTATE HEIRS ACCORDINGLY
1. Give to the Sole Intestate Heir This is if the remaining intestate heirs This is if the remaining intestate heirs
When there is only one or one are the following: are the following:
group of intestate heir 1. Legitimate Children and Surviving 1. Legitimate Children and Illegitimate
2. Give to Surviving Spouse Spouse Children
If intestate heirs are either: 2. Surviving Spouse and Illegitimate 2. Legitimate Children, Illegitimate
Legitimate Child and Children Children, and Surviving Spouse
a.
3. Surviving Spouse and Illegitimate 3. Legitimate Siblings, Nephews and
Surviving Spouse
Parents Nieces
b. Legitimate Parents and 4. Legitimate Siblings, Nephews and 4. Illegitimate Siblings, Nephews and
Surviving Spouse Nieces Nieces
c. Legitimate Parents, 5. Illegitimate Siblings, Nephews and
Illegitimate Children, and Nieces *For siblings, nephews and nieces, only if
if there are full-blood and half-blood
Surviving Spouse
*For siblings, nephews and nieces, unless
3. Give to Illegitimate Children there are full-blood and half-blood *Illegitimate or half-blood get only 1/2 of
If intestate heirs are Legitimate what legitimate or full-blood gets
Parents and Illegitimate Children
4. Give to Siblings, Nephews and
Nieces
If intestate heirs are either:
a. Surviving Spouse and
Legitimate Siblings, Nephews
and Nieces
b. Surviving Spouse and
Illegitimate Siblings, Nephews
and Nieces
SUBSECTION 1: DESCENDING DIRECT LINE
Article 978. Succession pertains, in the first place, to the descending direct line. (930)
Article 979. Legitimate children and their descendants succeed the parents and other ascendants, without
distinction as to sex or age, and even if they should come from different marriages.
An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child.
(931a)
Article 980. The children of the deceased shall always inherit from him in their own right, dividing the
inheritance in equal shares. (932)
Article 981. Should children of the deceased and descendants of other children who are dead, survive, the
former shall inherit in their own right, and the latter by right of representation. (934a)

Article 982. The grandchildren and other descendants shall inherit by right of representation, and if any one of
them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in
equal portions. (933)
Article 983. If illegitimate children survive with legitimate children, the shares of the former shall be in the
proportions prescribed by article 895. (n)
Article 984. In case of the death of an adopted child, leaving no children or descendants, his parents and
relatives by consanguinity and not by adoption, shall be his legal heirs. (n)
Art. 984 has been repealed by Secs. 17 and 18, R.A. 8552.
SUBSECTION 2: ASCENDING DIRECT LINE
Article 985. In default of legitimate children and descendants of the deceased, his parents and ascendants
shall inherit from him, to the exclusion of collateral relatives. (935a)
Article 986. The father and mother, if living, shall inherit in equal shares.
Should one only of them survive, he or she shall succeed to the entire estate of the child. (936)
Article 987. In default of the father and mother, the ascendants nearest in degree shall inherit.
Should there be more than one of equal degree belonging to the same line they shall divide the inheritance per
capita; should they be of different lines but of equal degree, one-half shall go to the paternal and the other
half to the maternal ascendants. In each line the division shall be made per capita. (937)
SUBSECTION 3: ILLEGITIMATE CHILDREN
Article 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to
the entire estate of the deceased. (939a)
Article 989. If, together with illegitimate children, there should survive descendants of another illegitimate
child who is dead, the former shall succeed in their own right and the latter by right of representation. (940a)
Article 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be
transmitted upon their death to their descendants, who shall inherit by right of representation from their
deceased grandparent. (941a)
Article 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them,
taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate children. (942,
841a)
Article 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives
of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate
child. (943a)
Article 993. If an illegitimate child should die without issue, either legitimate or illegitimate, his father or
mother shall succeed to his entire estate; and if the child's filiation is duly proved as to both parents, who are
both living, they shall inherit from him share and share alike. (944a)

Article 994. In default of the father or mother, an illegitimate child shall be succeeded by his or her surviving
spouse who shall be entitled to the entire estate.
If the widow or widower should survive with brothers and sisters, nephews and nieces, she or he shall inherit
one-half of the estate, and the latter the other half. (945a)
IRON CURTAIN RULE (ART. 992)

Generally, the grandchildren and other descendants shall inherit by right of representation, and if any one of them
should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal
portions. (Art. 982)
EXCEPTION: THE EXCEPTION IS THE IRON CURTAIN RULE IN ART. 992
AN ILLEGITIMATE CHILD HAS NO RIGHT TO INHERIT AB INTESTATO FROM THE LEGITIMATE CHILDREN AND
RELATIVES OF HIS FATHER OR MOTHER; NOR SHALL SUCH CHILDREN OR RELATIVES INHERIT IN THE SAME
MANNER FROM THE ILLEGITIMATE CHILD.
This only applies in intestacy, not to testacy, as the rule is predicated on the presumed will of the decedent
The illegitimate cannot inherit from the legitimate, and the legitimate cannot inherit from the illegitimate.
In other words, Article 992 prohibits succession ab intestato between the illegitimate child and the legitimate
children and relatives of his father or mother.
This means that an illegitimate child cannot inherit by right of representation from the legitimate relatives
of his illegitimate parent, and vice versa. Thus, an illegitimate child of one who is himself a legitimate
child cannot represent the latter in the inheritance to his legitimate descendants (such as the illegitimate
childs legitimate half-sister) or other legitimate relatives (such as grandparents).
In the same manner, these legitimate relatives are prohibited from succeeding intestate the illegitimate
child.
Note that the illegitimate child of an illegitimate parent is not so barred. If both of them are illegitimate, there
is NO bar
CORPUS VS. ADMINISTRATOR 85 SCRA 567 (1978)
Article 943 prohibits all successory reciprocity mortis causa between legitimate and illegitimate relatives.
The rule in Article 943 is now found in Article 992 of the Civil Code
That rule is based on the theory that the illegitimate child is disgracefully looked upon by the legitimate
family while the legitimate family is, in turn, hated by the illegitimate child.
The law does not recognize the blood tie and seeks to avoid further grounds of resentment
LEONARDO VS. COURT OF APPEALS 120 SCRA 890 (1983)
An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father,
this prohibition extends to the right of representation.
DIAZ VS. IAC 150 SCRA 645 (1987)
Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely a
succession ab intestato between the illegitimate child and the legitimate children and relatives of the
father or mother of said legitimate child. They may have a natural tie of blood, but this is not recognized
by law for the purposes of Art. 992.
Between the legitimate family and the illegitimate family there is presumed to be an intervening antagonism
and incompatibility. The illegitimate child is disgracefully looked down upon by the legitimate child; the latter
considers the privileged condition of the former, and the resources of which it is thereby deprived; the
former, in turn, sees in the illegitimate child nothing but the product of sin, palpable evidence of a blemish
broken in life; the law does no more than recognize this truth, by avoiding further grounds of resentment.
JBL REYES:
In the Spanish Civil Code of 1889 the right of representation was admitted only within the legitimate
family: so much so that Article 943 of that Code prescribed that an illegitimate child can not inherit ab
intestato from the legitimate children and relatives of his father and mother.
The Civil Code of the Philippines apparently adhered to this principle since it reproduced Article 943 of
the Spanish Code in its own Art. 992, but with fine inconsistency, in subsequent articles (990, 995 and
998) our Code allows the hereditary portion of the illegitimate child to pass to his own descendants,
whether legitimate or illegitimate. So that while Art. 992 prevents the illegitimate issue of a
legitimate child from representing him in the intestate succession of the grandparent, the
illegitimate of an illegitimate child can now do so. This difference being indefensible and

unwarranted, in the future revision of the Civil Code we shall have to make a choice and decide either
that the illegitimate issue enjoys in all cases the right of representation, in which case Art. 992 must be
suppressed: or contrariwise maintain said article and modify Articles 995 and 998. The first solution
would be more in accord with an enlightened attitude vis-a-vis illegitimate children
DIAZ VS. IAC 182 SCRA 427 (1990)
Issue was, does the term relatives in Article 992 include the legitimate parents of the father or mother of
the illegitimate children?
The right of representation is not available to illegitimate descendants of legitimate children in the
inheritance of a legitimate grandparent. It may be argued, as done by petitioners, that the illegitimate
descendant of a legitimate child is entitled to represent by virtue of the provisions of Article 982, which
provides that the grandchildren and other descendants shall inherit by right of representation. Such a
conclusion is erroneous. It would allow intestate succession by an illegitimate child to the legitimate parent
of his father or mother, a situation which would set at naught the provisions of Article 992. Article 982 is
inapplicable to instant case because Article 992 prohibits absolutely a succession ab intestato between
the illegitimate child and the legitimate children and relatives of the father or mother. It may not be
amiss to state that Article 982 is the general rule and Article 992 the exception.
The rules laid down in Article 982 that grandchildren and other descendants shall inherit by right of
representation and in Article 902 that the rights of illegitimate children are transmitted upon their death to
their descendants, whether legitimate or illegitimate are subject to the limitation prescribed by Article 992 to
the end that an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives
of his father or mother
MANRESA: Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely a
succession ab intestato between the illegitimate child and the legitimate children and relatives of the father
or mother of said illegitimate child. They may have a natural tie of blood, but this is not recognized by law for
the purpose of Article 992. Between the legitimate family and the illegitimate family there is presumed to be
an intervening antagonism and incompatibility. The illegitimate child is disgracefully looked down upon by the
legitimate family; and the family is in turn, hated by the illegitimate child; the latter considers the privileged
condition of the former, and the resources of which it is thereby deprived; the former, in turn, sees in the
illegitimate child nothing but the product of sin, palpable evidence of a blemish broken in life; the law does
no more than recognize the truth, by avoiding further ground of resentment.
While the new Civil Code may have granted successional rights to illegitimate children, those articles,
however, in conjunction with Article 992, prohibit the right of representation from being exercised where the
person to be represented is a legitimate child. Needless to say, the determining factor is the legitimacy or
illegitimacy of the person to be represented. If the person to be represented is an illegitimate child, then
his descendants, whether legitimate or illegitimate, may represent him; however, if the person to be
represented is legitimate, his illegitimate ascendants cannot represent him because the law
provides that only his legitimate descendants may exercise the right of representation by reason of
the barrier imposed In Article 992. In this wise, the commentaries of Manresa on the matter in issue, even
though based on the old Civil Code, are still very much applicable to the new Civil Code because the
amendment, although substantial, did not consist of giving illegitimate children the right to represent their
natural parents (legitimate) in the intestate succession of their grandparents (legitimate).
The word relative in Art. 992 is broad enough to comprehend all the kindred of the person spoken
of.The word relatives should be construed in its general acceptance.
BALANE: The term relatives, although used many times in the Code, is not defined by it. In accordance
therefore with the canons of statutory interpretation, it should be understood to have a general and
inclusive scope, inasmuch as the term is a general one. Generalia verba sunt generaliter intelligenda
That the law does not make a distinction prevents us from making one
According to Prof. Balane, to interpret the term relatives in Article 992 in a more restrictive sense than it
is used and intended is not warranted, by any rule of interpretation. Besides, he further states that when
the law intends to use the term in a more restrictive sense, it qualifies the term with the word collateral,
as in Articles 1003 and 1009 of the new Civil Code.Thus, the word, relatives is a general term and
when used in a statute it embraces not only collateral relatives but also all the kindred of the
person spoken of, unless the context indicates that it was used in a more restrictive or limited
sense.
BALANE CITING TOLENTINO: The lines of this distinction between legitimates and illegitimates, which
goes back very far in legal history, have been softened but not erased by present law. Our legislation has
not gone so far as to place legitimate and illegitimate children on exactly the same footing. Even the

Family Code of 1987 (EO 209) has not abolished the gradation between legitimate and illegitimate
children (although it has done away with the subclassification of illegitimates into natural and 'spurious).
It would thus be correct to say that illegitimate children have only those rights which are expressly or
clearly granted to them by law
We conclude that until Article 992 is suppressed or at least amended to clarify the term relatives, there
is no other alternative but to apply the law literally
SUNTAY VS. SUNTAY, G.R. NO. 183053, 16 JUNE 2010
The peculiar circumstances of this case, painstakingly pointed out by counsel for petitioner, overthrow the
legal presumption in Article 992 of the Civil Code that there exist animosity and antagonism between
legitimate and illegitimate descendants of a deceased.
The illegitimate grandchild of the decedent, was actually treated by the decedent and her husband as their
own son, reared from infancy, educated and trained in their businesses, and eventually legally adopted by
decedents husband, the original oppositor to respondents petition for letters of administration.
In this case, Article 992 was also not applied where the illegitimate grandchild was legally adopted by
the grandparents, thus raising his status to that of a legitimate child entitled to succeed as a direct
heir to the inheritance left by his grandmother/adoptive mother
SUBSECTION 4: SURVIVING SPOUSE
Article 995. In the absence of legitimate descendants and ascendants, and illegitimate children and their
descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate, without
prejudice to the rights of brothers and sisters, nephews and nieces, should there be any, under article 1001.
(946a)
Article 996. If a widow or widower and legitimate children or descendants are left, the surviving spouse has in
the succession the same share as that of each of the children. (834a)
Article 997. When the widow or widower survives with legitimate parents or ascendants, the surviving spouse
shall be entitled to one-half of the estate, and the legitimate parents or ascendants to the other half. (836a)
Article 998. If a widow or widower survives with illegitimate children, such widow or widower shall be entitled
to one-half of the inheritance, and the illegitimate children or their descendants, whether legitimate or
illegitimate, to the other half. (n)
Article 999. When the widow or widower survives with legitimate children or their descendants and illegitimate
children or their descendants, whether legitimate or illegitimate, such widow or widower shall be entitled to
the same share as that of a legitimate child. (n)
Article 1000. If legitimate ascendants, the surviving spouse, and illegitimate children are left, the ascendants
shall be entitled to one-half of the inheritance, and the other half shall be divided between the surviving
spouse and the illegitimate children so that such widow or widower shall have one-fourth of the estate, and
the illegitimate children the other fourth. (841a)
Article 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall
be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half. (953,
837a)
Article 1002. In case of a legal separation, if the surviving spouse gave cause for the separation, he or she
shall not have any of the rights granted in the preceding articles. (n)
SANTILLON VS. MIRANDA 14 SCRA 563 (1965)

Issue was, how shall the estate of a person who dies intestate be divided when the only survivors are the spouse
and one legitimate child?

The child argues that under Art. 892, he should get 3/4 of his father's estate. Art 892: If only the legitimate child or
descendant of the deceased survives the widow or widower shall be entitled to one-fourth of the hereditary estate.
As she gets one-fourth, therefore, I get 3/4, says the child.
The spouse argues that under Art. 992, if a widow or widower and legitimate children or descendants are left, the
surviving spouse has in the succession the same share as that of each of the children.
The child says that Art. 992 is unjust and unequitable to the extent that it grants the widow the same share as that
of the children in intestate succession, whereas in testate, she is given 1/4 and the only child 1/2. In testate
succession, where there is only one child of the marriage, the child gets one-half, and the widow or widower one-
fourth. But in intestate , if Art. 996 is applied now, the child gets one-half, and the widow or widower one-half. Unfair
or inequitable, they insist.
The spouse contends that Art. 996 should control, regardless of its alleged inequity, being as it is, a provision on
intestate succession involving a surviving spouse and a legitimate child, inasmuch as in statutory construction, the
plural word "children" includes the singular "child."
Art. 892 of the New Civil Code falls under the chapter on Testamentary Succession; whereas Art. 996 comes under
the chapter on Legal or Intestate Succession. Such being the case, it is obvious that the child cannot rely on Art.
892 to support his claim to 3/4 of his father's estate. Art 892 merely fixes the legitime of the surviving spouse and
Art. 888 thereof, the legitime of children in testate succession. While it may indicate the intent of the law with
respect to the ideal shares that a child and a spouse should get when they concur with each other, it does not fix
the amount of shares that such child and spouse are entitled to when intestacy occurs. Because if the latter
happens, the pertinent provision on intestate succession shall apply, i.e., Art. 996.
Since this is intestate proceedings. The only article applicable is Art. 996
Art. 996 could or should be read (and so applied) : "If the widow or widower and a legitimate child are left,
the surviving spouse has the same share as that of the child."
Indeed, if we refuse to apply the article to this case on the ground that "child" is not included in
"children," the consequences would be tremendous, because "children" will not include "child" in the
other articles
Court said that children in Art. 996 includes child (if there is only one)
SUBSECTION 5: COLLATERAL RELATIVES
Article 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the
collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles.
(946a)
Article 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal
shares. (947)
Article 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of
the descendant's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per
stirpes. (948)
Article 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half
blood, the former shall be entitled to a share double that of the latter. (949)
Article 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother's
side, are the only survivors, all shall inherit in equal shares without distinction as to the origin of the property.
(950)
Article 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in
accordance with the rules laid down for brothers and sisters of the full blood. (915)

CHAP. 3: LEGAL OR INTESTATE SUCCESSION; SEC. 2: ORDER OF INTESTATE SUCCESSION
SUBSECTION 6: THE STATE
Article 1009. Should there be neither brothers nor sisters nor children of brothers or sisters, the other
collateral relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or preference among them by reason of relationship by the
whole blood. (954a)
Article 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the
collateral line. (955a)
INING VS VEGA, GR 174727, AUGUST 12, 2013

One who is merely related by affinity to the decedent does not inherit from the latter and cannot become a co-owner
of the decedents property. Consequently, he cannot effect a repudiation of the co-ownership of the estate that was
formed among the decedents heirs. Family relations, which is the primary basis for succession, exclude relations
by affinity
Article 1011. In default of persons entitled to succeed in accordance with the provisions of the preceding
Sections, the State shall inherit the whole estate. (956a)
Article 1012. In order that the State may take possession of the property mentioned in the preceding article,
the pertinent provisions of the Rules of Court must be observed. (958a)
Article 1013. After the payment of debts and charges, the personal property shall be assigned to the
municipality or city where the deceased last resided in the Philippines, and the real estate to the
municipalities or cities, respectively, in which the same is situated. If the deceased never resided in the
Philippines, the whole estate shall be assigned to the respective municipalities or cities wherethe same is
located. Such estate shall be for the benefit of public schools, and public charitable institutions and centers,
in such municipalities or cities. The court shall distribute the estate as the respective needs of each
beneficiary may warrant. The court, at the instance of an interested party, or on its own motion, may order the
establishment of a permanent trust, so that only the income from the property shall be used. (956a)
Article 1014. If a person legally entitled to the estate of the deceased appears and files a claim thereto with the
court within five years from the date the property was delivered to the State, such person shall be entitled to
the possession of the same, or if sold, the municipality or city shall be accountable to him for such part of the
proceeds as may not have been lawfully spent. (n)
ASSIGNMENT AND DISPOSITION OF DECEDENTS ASSETS TO THE STATE

1. If decedent was a resident of the Philippines at any time
a. Personal propertyto municipality of last residence
b. Real propertywhere situated
2. If decedent never a resident of the Philippines:
Personal and real propertywhere respectively situated
Lex situs is observed
HOW PROPERTY IS TO BE USED

For the benefit of public educational and charitable institutions in the respective municipalities/cities;
Alternatively, at the instance of an interested party, or motu proprio, court may order creation of a permanent trust for
the benefit of the institutions concerned.

CHAP. 3: LEGAL OR INTESTATE SUCCESSION; SEC. 2: ORDER OF INTESTATE SUCCESSION
IF THE ESTATE HAS BEEN GIVEN TO THE STATE BUT A PERSON LEGALLY ENTITLED LATER APPEARS
Any person entitled by succession to the estate may file a claim with the court
This would include any heir by any kind of succession: the legitime, testamentary, or intestate
Such person shall be entitled to the possession of the same, or if sold, the municipality or city shall be accountable
to him for such part of the proceeds as may not have been lawfully spent
Prescriptive period for claim5 years from the delivery of the property to the State (the political subdivision
concerned).

CHAP. 4: PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSION
SECTION 1: RIGHT OF ACCRETION
CHAPTER 4: PROVISIONS COMMON TO TESTATE AND INTESTATE
SUCCESSION
DEFINITION OF ACCRETION
Article 1015. Accretion is a right by virtue of which, when two or more persons are called to the same
inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or who
died before the testator, is added or incorporated to that of his co-heirs, co-devisees, or co-legatees. (n)
Article 1023. Accretion shall also take place among devisees, legatees and usufructuaries under the same
conditions established for heirs. (987a)
WHEN ACCRETION OPERATES:

1. IN TESTAMENTARY OR INTESTATE SUCCESSION
Accretion operates only in testamentary and intestate succession
For testamentary succession see Art. 1016, 1022
For intestacy, see Art. 968, 1018
When accretion does not operate, according to the kind of succession involved:
a. Accretion NEVER operates with respect to the legitimes (Art. 1022)
b. In testacy, accretion is subordinate to substitution (simple), meaning it does not operate if there is substitution.
c. In intestacy, accretion is subordinate to representation, meaning it does not operate if there is representation.
2. THERE MUST BE TWO OR MORE HEIRS, LEGATEES, DEVISEES CALLED TO THE SAME INHERITANCE, DEVISE OR LEGACY
3. WHEN AN HEIR, DEVISEE, OR LEGATEE:
a. Dies before the testator (predecease)
b. Renounces (renunciation)
c. Cannot receive his share (incapacity)
Note that these are also the same grounds for substitution (which operates in testamentary succession)
Can accretion operate in disinheritance? I asked Prof. Balane and he said yes, it can be said that disinheritance is
part of incapacity to inherit.
EFFECT OF ACCRETION
RULE: THE SHARE OF THE HEIR WHO CANNOT INHERIT IS ADDED OR INCORPORATED TO THAT OF HIS CO-HEIRS, CO-
DEVISEES OR CO-LEGATEES
Comparison: Accretion, Substitution and Representation
ACCRETION SUBSTITUTION (SIMPLE) REPRESENTATION
Effect A co-heir, co-devisee, or co- The appointed heir (substitute) The representative (compulsory or intestate
legatee is added or enters into the inheritance in heir) is raised to the place and the degree of
incorporated to the share of his default of the heir originally the person represented, and acquires the
co-heirs, co-devisees, or co- instituted (Art. 857) rights which the latter would have if he were
legatees. (Art. 1015) living or if he could have inherited. (Art. 970)
In what Mode of 1. Intestate Testamentary 1. Compulsory

Succession it 2. Testamentary 2. Intestate
Operates
Causes 1. Predecease 1. Predecease

2. Renunciation 2. Incapacity
3. Incapacity 3. Disinheritance

ACCRETION IN TESTAMENTARY SUCCESSION
Article 1016. In order that the right of accretion may take place in a testamentary succession, it shall be
necessary:
(1) That two or more persons be called to the same inheritance, or to the same portion thereof, pro indiviso;
and
(2) That one of the persons thus called die before the testator, or renounce the inheritance, or be incapacitated
to receive it. (928a)
Article 1017. The words "one-half for each" or "in equal shares" or any others which, though designating an
aliquot part, do not identify it by such description as shall make each heir the exclusive owner of determinate
property, shall not exclude the right of accretion.
In case of money or fungible goods, if the share of each heir is not earmarked, there shall be a right of
accretion. (983a)
Article 1022. In testamentary succession, when the right of accretion does not take place, the vacant portion
of the instituted heirs, if no substitute has been designated, shall pass to the legal heirs of the testator, who
shall receive it with the same charges and obligations. (986)
WHEN ACCRETION OPERATES IN TESTAMENTARY SUCCESSION

1. TWO OR MORE PERSONS ARE CALLED TO THE SAME INHERITANCE, OR TO THE SAME PORTION THEREOF, PRO
INDIVISO.
Meaning of pro indiviso
Heirs are instituted together to the whole or proportional, aliquot part of the estate without individual
specification of the proportion of their shares or without individual designation.
It means undivided or in common, such that the result is co-ownership (regardless of equality or inequality)
a. The co-heirs are instituted without individual designation of shares
Ex: I institute A and B to one-half of my estate
b. The co-heirs are instituted with the specification that they share equally (in equal shares) or that they
have the same fractional sharing (one-half or one-third, etc.) for each (Article 1017)
Ex: I institute A, B, and C to one-half of my estate in equal shares. or I institute A, B, and C to one-half of
my estate, each of them to take one-third of that one-half.
c. The co-heirs are instituted but their fractional sharings are unequal
Ex: I institute A, B, and C to one-half of my estate; of this one-half, A is to get 1/2; B, 1/3; and C, 1/6.
TOLENTINO: If unequal proportions, then its not pro-indiviso, because the sharing have to be equal, thus
accretion does not apply.
BALANE:
Tolentino is wrong. Not because he is stupid, because he is one of the greatest civilists, possibly second
to JBL Reyes, but because the comments of Tolentino on this was written under the old civil code.
Pro-indiviso may include unequal shares. All that the law requires is that the institution be pro indiviso,
which means as undivided or in common. The term does not import equality. It would therefore seem
that accretion will occur even if the sharings are unequal, as long as the result of the institution is co-
ownership. In fact, it is implied that the shares do not have to be equal under Art. 1019 for it to be pro-
indiviso. Under Art. 1019, the portion that the heirs get by accretion, should be in the same proportion
that they inherit. This implies that if the proportion in which they inherit is unequal, what they would get
by accretion is unequal
Thus, if the shares are earmarked (designated), then accretion does NOT operate
Ex: I give my house in Makati to A, house in Quezon City to B, house in Manila to C. No pro-indiviso sharing
here because the properties have been specifically earmarked to specific persons. Meaning if A predeceases,
accretion cannot operate in favour of the other legatees.
2. RENUNCIATION, PREDECEASE, OR INCAPACITY OF ONE (OR MORE BUT NOT ALL) OF THE INSTITUTED HEIRS.
Note that these are the same occasions for simple substitution.

3. SUBSTITUTION IS NOT PROVIDED FOR
Accretion does NOT operate in testamentary succession, if there is substitution
In testamentary succession, accretion is subordinate to substitution, if the testator has so provided (for substitution).
This is because substitution is the testators express intent, whereas accretion is merely his implied intent.
If there is neither substitution nor accretion, the part left vacant will lapse into intestacy
IF SUBSTITUTION NOR ACCRETION OPERATES IN TESTAMENTARY SUCCESSION

If neither substitution, nor accretion operates, the vacant portion will pass by intestacy
This will apply if the institution of heirs is not pro-indiviso.
RIGHT OF ACCRETION IN INTESTACY
Article 1018. In legal succession the share of the person who repudiates the inheritance shall always accrue to
his co-heirs. (981)
Article 968. If there are several relatives of the same degree, and one or some of them are unwilling or
incapacitated to succeed, his portion shall accrue to the others of the same degree, save the right of
representation when it should take place. (922)
Also see the discussion under Art. 968
WHEN ACCRETION OPERATES IN INTESTACY

1. RENUNCIATION, PREDECEASE OR INCAPACITY OF ONE (OR MORE BUT NOT ALL) OF THE INSTITUTED HEIRS.
Note that there is no provision saying that accretion applies in predecease of heir in intestacy, but I asked Prof.
Balane and he said it can still apply
2. REPRESENTATION DOES NOT OPERATE WITH REGARD TO THE SHARE OF THE HEIR WHO RENOUNCES, PREDECEASES
OR IS INCAPACITATED
For incapacity or predecease accretion operates only if representation does not take place, remember that in
renunciation, representation never takes place.
In intestacy, accretion is subordinate to representation
BUT, the representation here is with regard to the share of the heir supposedly subject to accretion.
Accretion may apply if there is representation with regard to the other heirs. In other words, the
representatives (to the legitime) may inherit by right of accretion (to the intestate portion)
Ex: A has three children, X,Y and Z. X has two children X1 and X2. Y and Z have no children/descendants.
X predeceases A. When A dies intestate, Y renounces his share. The intestate share (free portion, the
legitimes are excluded in accretion) of Y in the estate of A accrues in favour of Z and X1 and X2 (the latter
two share equally in what X would have gotten by right of representation) . Thus, when A dies, X1 and X2
get the share of X by representation (as to the legitime) and by accretion (as to the intestate portion, of the
share of Y).
3. THE CO-HEIRS IN WHOSE FAVOR ACCRETION OCCURS MUST BE CO-HEIRS IN THE SAME CATEGORY AS THE EXCLUDED
HEIR.
In intestacy, it must accrue in favour of co-heirs of the same category because accretion presupposes that there are
multiple heirs who are called to the same inheritance (Art. 1015)
Ex: X dies intestate, survived by his wife Y and his brothers A, B, and C. If C renounces, his portion goes to A and
B by accretion. Y is not an accruing co-heir, not being of the same category or class.
RULE OF PROPORTIONALITY IN ACCRETION
Article 1019. The heirs to whom the portion goes by the right of accretion take it in the same proportion that
they inherit. (n)

BALANE: This article merely makes explicit what is implied; that accretion should be proportional (to the proportion that
the heirs inherit). This article opens the possibility that accretion can operate in different proportions, as long as the
institution is pro indiviso.
EFFECT OF ACCRETION
Article 1020. The heirs to whom the inheritance accrues shall succeed to all the rights and obligations which
the heir who renounced or could not receive it would have had. (984)
RULE: HEIR IN WHOSE FAVOR ACCRETION APPLIES SUCCEEDS TO ALL THE RIGHTS AND OBLIGATIONS WHICH THE
UNQUALIFIED HEIR WOULD HAVE RECEIVED
EXCEPTION:
1. In testamentary succession, if the testator provides otherwise
2. If the obligation is purely personal, and hence intransmissible
NO ACCRETION IN THE LEGITIME
Article 1021. Among the compulsory heirs the right of accretion shall take place only when the free portion is
left to two or more of them, or to any one of them and to a stranger.
Should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own right, and not by
the right of accretion. (985)
Under the first paragraph, accretion is restricted in its operation within the confines of the particular kind of succession
involved
RULE: IN THE LEGITIME, NOTHING GOES BY ACCRETION. ACCRETION DOES NOT OPERATE IN COMPULSORY
SUCCESSION (ART. 1021, 2ND PAR.)
Examples:
1. A has three sons, X, Y, and Z. If X predeceases and he has no children or descendants, the legitime of the
legitimate children (which is 1/2 of the estate) is divided between Y and Z. They do not get the share of X by
accretion, but rather, by their own right as the remaining compulsory heirs, accretion does not operate. But
assuming that X has children, then his legitime will go to his children by right of representation.
2. A makes a will and institutes his 2 sons X and Y, and his brother Z to his entire estate. X has no children/
descendants. A dies, but X predeceases him. 1/2 of the estate will immediately go to Y, as his legitime (not by
accretion by by his own right in compulsory succession), the remaining 1/2 will be divided to X, Y and Z
equally, thus 1/6 each. But since X predeceases, then his 1/6 share will go to Y and Z equally, or 1/12 each, by
accretion.
Note that the institution of X, Y and Z to the entire estate (or 1/3 each) is interpreted to mean that it is 1/3
of the free portion only, because under Art. 1063, testamentary disposition is imputed to the free portion
unless the testator provides otherwise
SECTION 2: CAPACITY TO SUCCEED BY WILL OR BY INTESTACY
CAPACITY TO SUCCEED IN GENERAL
Article 1024. Persons not incapacitated by law may succeed by will or ab intestato.
The provisions relating to incapacity by will are equally applicable to intestate succession. (744, 914)

The general rule is in favor of capacity to succeed, as long as the successor has juridical personality.
Incapacity must be based on some legal ground and must be shown.
Ab intestato pertains to both intestate and compulsory succession
The second paragraph is inaccurate. Some grounds for incapacity to succeed by will have no application to
compulsory or intestate succession.
Overview of Provisions governing Incapacity to Succeed:
1. Provisions applicable only to Testamentary Succession
Article 1027, pars. 1-5, 1028
2. Provisions applicable only all kinds of Succession
Article 1027, par. 6, 1032
CAPACITY TO SUCCEED FOR NATURAL PERSONS
Article 1025. In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the
succession opens, except in case of representation, when it is proper.
A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born
later under the conditions prescribed in article 41. (n)
Article 41. For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered
from the mother's womb. However, if the foetus had an intra-uterine life of less than seven months, it is not
deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb.
Article 40. Birth determines personality; but the conceived child shall be considered born for all purposes that
are favorable to it, provided it be born later with the conditions specified in the following article.
BALANE: Both natural and juridical persons have the capacity to succeed (unless there are grounds for incapacity), but for
making a will, only natural persons are capacitated to make a will.
REQUIREMENT FOR CAPACITY TO SUCCEED IN CASE OF NATURAL PERSONS

RULE: THE HEIR MUST BE LIVING WHEN SUCCESSION OPENS, WHICH IS AT THE TIME OF THE TESTATORS DEATH.
What does living mean?
See Art. 41 for general rule. The exception is in Art. 40 (for posthumous children)
It is enough that the heir, devisee, or legatee be already conceived when the decedent dies, provided it be
born later, in accordance with Articles 40 & 41. Inheriting is favorable to the child.
This requirement is ABSOLUTE. Representation is NOT an exception to this requirement:
Contrary to Art. 1025, representation is not an exception because for representation to occur, the representation
must be alive when the decedent dies (Art. 971 and 973)
Ex: X has two sonsA and Band B was disinherited by X. X died in 1985. In 1988 B begot a child. Bs
child cannot represent B in the succession to X.
How about in the reserva troncal where the reservatarios are not required to be alive when the prepositus dies?
Note that several cases say that the reservatarios inherit from the prepossess (Cases of Cano, Gonzales, etc)
BALANE: NOT an exception, the reservatarios do not really inherit from the prepositus, they only inherit from
in a manner of speaking. They really inherit by virtue of the special law on the reserva troncal.
This requirement applies regardless whether the institution is subject to a suspensive condition or term,
but may be subject to addition requirements
1. If institution subject to a suspensive condition
Successor must also be living when condition happens (Article 1034, par. 3).
Thus, in a conditional institution, the successor must be living both when the decedent dies and when the
condition happens.
2. If institution subject to a suspensive term
The requirement of being alive applies only at the moment of the decedents death, the successor need not
be alive when the term arrives. (Art. 878)

CAPACITY TO SUCCEED FOR JURIDICAL PERSONS
Article 1026. A testamentary disposition may be made to the State, provinces, municipal corporations, private
corporations, organizations, or associations for religious, scientific, cultural, educational, or charitable
purposes.
All other corporations or entities may succeed under a will, unless there is a provision to the contrary in their
charter or the laws of their creation, and always subject to the same. (746a)
REQUIREMENT FOR CAPACITY TO SUCCEED IN CASE OF JURIDICAL PERSONS:

RULE: THE JURIDICAL PERSON MUST ALREADY EXIST AS SUCH WHEN THE DECEDENT DIES.
Organizations or associations which do not possess juridical personality cannot succeed, because legally they
would not exist.
The enumeration of juridical persons is found in Article 44
EXCEPTION: RAMIREZ CASE CATHOLIC CHURCH
For institutions subject to suspensive conditions or terms, the rules for natural persons also apply.
BALANE: You cannot institute a corporation to be organised and incorporated in the future, but you can place it in a
trust. In the case of a trust, you can give it to a trust, even if the beneficial owner of a trust is still inexistent This is a
consequence of Art. 777. This is similar to the law on donations. You also cannot donate to an unincorporated entity
because it is legally inexistent.
GROUNDS FOR INCAPACITY TO SUCCEED IN TESTAMENTARY SUCCESSION
Article 1027. The following are incapable of succeeding:

(1) The priest who heard the confession of the testator during his last illness, or the minister of the gospel
who extended spiritual aid to him during the same period;
(2) The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter,
community, organization, or institution to which such priest or minister may belong;
(3) A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts
of the guardianship have been approved, even if the testator should die after the approval thereof;
nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant,
descendant, brother, sister, or spouse, shall be valid;
(4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under
such witness, spouse, parents, or children;
(5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last
illness;
(6) Individuals, associations and corporations not permitted by law to inherit. (745, 752, 753, 754a)
Article 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to
testamentary provisions. (n)
Article 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.
Article 1031. A testamentary provision in favor of a disqualified person, even though made under the guise of
an onerous contract, or made through an intermediary, shall be void. (755)

Pars. 1-5 of this article apply only to testamentary succession. They have no application to the legitime or to intestacy.

Thus, a person may be disqualified to succeed by will under these paragraphs but be entitled to a legitime or to an
intestate portion.
BALANE: It is unfortunate that these paragraphs (with the exception of par. 3, which clearly limits its application to
testamentary dispositions) do not state with sufficient clarity that they apply solely to testamentary succession and
not to the legitime or intestacy. The Spanish Code did not suffer from this ambiguity. Par. 6 is misplaced here
because it provides for total disqualification. It should have been made a separate article.
Rationale of Pars. 1-5: The law, in imposing this disqualification, seeks to prevent any possible abuse of the moral
or spiritual ascendancy for purposes of testamentary benefit.
This disqualification is peremptory. No actual duress or influence need be shown; these are conclusively
presumed.
Proof of absence of duress or influence is irrelevant and will, anyway, not remove the disqualification.
BALANE: The rationale behind the disqualification is the reason why par. 1-5 only apply to testamentary
succession, this is because undue influence has no place there because legitime and intestacy is provided for by
law, not by the testator.
Inconsistencies in Art. 1027
BALANE: This article is a hodgepodge of rules derived from various sources: different articles of the old Code
(which itself did not lay down consistent rules), the Code of Civil Procedure, and the ideas of the Code Commission.
Why, for instance, do some paragraphs (2 and 4) disqualify relatives but another (5) doesnt? In fact even the
degrees of relationship differ (2, 3, and 4).
Why is the exception in par. 3 not also applied to pars. 1 and 5?

By the provisions of this article, those who are disqualified from receiving donations under Article 739 are likewise
disqualified from receiving testamentary dispositions from the parties specified in that article.
RULE IN ART. 1027, 1028 IN RELATION TO 739, AND 1031

The testamentary disposition is VOID, by reason of incapacity of the heir to succeed by testacy.
Note that the will is not VOID, only the disposition contemplated.
PERSONS INCAPACITATED TO SUCCEED BY TESTAMENTARY SUCCESSION

Note the requisites for the disqualification to apply, it is strictly construed against incapacity
1. PRIESTS OR RELIGIOUS MINISTERS
The priest who heard the confession of the testator during his last illness, or the minister of the gospel who
extended spiritual aid to him during the same period
Requisites:
a. The will must have been executed during the testators last illness
b. The spiritual ministration must have been extended during the last illness
c. The will must have been executed during or after the spiritual ministration
BALANE:
What is contemplated here is a deathbed will. Note that the sequence is important here, the will must be excited
during or after (not before) the spiritual ministration to fall under this disqualification
A literal reading of the paragraph does not clearly indicate that the will must have been made during the
testator's last illness, nor that the spiritual ministration be anterior to, or simultaneous with, the making of the
will. Again, we have here a case of clumsy draftsmanship.
Note that notwithstanding the seemingly restrictive terms of this disqualification, it applies not only to Christian
priests, pastors, ministers, and so forth, but also to all individuals belonging to other religions, sects, or cults,
whose office or function it is to extend the peculiar spiritual ministrations of their creed.
2. RELATIVES OF THE PRIESTS OR RELIGIOUS MINISTERS
The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community,
organization, or institution to which such priest or minister may belong
Fourth degree of relationshipThe computation is made in accordance with Articles 963-969
The purpose of this disqualification is to prevent indirect violations or circumventions of Par. (1)
BALANE: What you cannot do directly, you also cannot do indirectly
Does the prohibition of this paragraph apply to the spouse of the minister?
NO, Art. 1027 doesnt expressly include the spouse of the minister, because this involves incapacity to succeed,
thus it is strictly construed against incapacity.

BALANE: Certainly, the mischief sought to be averted can be perpetrated by the spouse. The code commission
forgot to include the spouse because they forgot that while the Catholic priesthood is celibate, the priesthood or
ministry of many other denominations or religions. The disposition in favour of a spouse can still be void by
reason of undue influence, but it must be proven, no conclusive presumption here.
3. GUARDIANS
A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the
guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any
provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or
spouse, shall be valid
For this disqualification to apply, the will must have been executed by the ward during the effectivity of the
guardianship, which is at anytime between the commencement of the guardianship and its dissolution.
BALANE: For guardians over the property, the guardianship is terminated upon final approval of the accounts.
For guardians over the person, it is terminated upon order of the court.
Note that the terms of this prohibition limit it to guardians over the property.
BALANE: In view, however, of the purpose of the prohibition, the argument that this prohibition should apply as
well to guardians over the person is most tenable.
EXCEPTION: A guardian who happens to be an ascendant, descendant, brother, sister, or spouse of the ward-
testator is excluded from the prohibition.
BALANE: Curiously, this exception is not allowed in the other paragraphs. Why is this exception not extended to
the priest? Also what about the relatives of the guardian, why are they not disqualified as well like the relatives
of the priest?
4. ATTESTING WITNESSES
Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such
witness, spouse, parents, or children
BALANE: This is essentially a reiteration of the disqualification set forth in Article 823, but cast in more general
terms, since this article nullifies not just legacies and devises, but all testamentary dispositions made in the witness
favor. Note the discrepancy between this paragraph and Article 823, which allows for an exception; if there are three
other competent witnesses. That exception should be read into this paragraph.
5. PHYSICIAN, SURGEON, NURSE, HEALTH OFFICER OR DRUGGIST
Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness
The person (physician, surgeon, and so forth) must have taken care of the testator during the latters final illness.
Taking care means medical attendance with some regularity or continuity, because it is in such circumstances
that the possibility of duress or influence exists.
Obviously, the pharmacist of Farmacia Patakbuhin who only happens to fill a prescription does not fall under
the interdiction.
6. INDIVIDUALS, ASSOCIATIONS AND CORPORATIONS NOT PERMITTED BY LAW TO INHERIT
BALANE: Par. 6 is misplaced here because it provides for total disqualification. It applies to ALL kinds of
succession. It should have been made a separate article.
Corporations and other juridical entities can only inherit by testamentary succession, they have no legitime neither
are they intestate heirs.
EXCEPTION: The State, as a juridical entity, can inherit by intestacy, as the last intestate heir.
7. PERSONS GUILTY OF ADULTERY OR CONCUBINAGE
Those made between persons who were guilty of adultery or concubinage at the time of the donation
Criminal conviction is not required here, it may be proved by a mere preponderance of evidence
8. PERSONS GUILTY OF THE SAME CRIMINAL OFFENSE
Those made between persons found guilty of the same criminal offense, in consideration thereof
Conviction is required here
BALANE: Note that dispositions subject to an illegal condition (such as to commit a crime) is considered not written,
thus the condition is void but disposition is effective. If, however, the condition has already been fulfilled (because
the heir committed the crime) the disposition will now be void under Art. 1028 in relation to Art. 739 (2)
9. PUBLIC OFFICERS
Those made to a public officer or his wife, descendants and ascendants, by reason of his office
10. DISQUALIFIED PERSONS, UNDER THE GUISE OF AN ONEROUS CONTRACT
A testamentary provision in favor of a disqualified person, even though made under the guise of an onerous
contract, or made through an intermediary, shall be void (Art. 1031)
BALANE: What cannot be done by direction cannot be done by indirection.

The simulation must be proved, for this to apply.
Art. 1031 provides that the disposition is void, hence ineffective both as to the intended beneficiary and the
intermediary. The intestate heirs, to whom the property would go, have the right to claim the nullity.
EFFECT OF CERTAIN TESTAMENTARY DISPOSITIONS
Article 1029. Should the testator dispose of the whole or part of his property for prayers and pious works for
the benefit of his soul, in general terms and without specifying its application, the executor, with the court's
approval shall deliver one-half thereof or its proceeds to the church or denomination to which the testator may
belong, to be used for such prayers and pious works, and the other half to the State, for the purposes
mentioned in article 1013. (747a)
Article 1030. Testamentary provisions in favor of the poor in general, without designation of particular persons
or of any community, shall be deemed limited to the poor living in the domicile of the testator at the time of his
death, unless it should clearly appear that his intention was otherwise.
The designation of the persons who are to be considered as poor and the distribution of the property shall be
made by the person appointed by the testator for the purpose; in default of such person, by the executor, and
should there be no executor, by the justice of the peace, the mayor, and the municipal treasurer, who shall
decide by a majority of votes all questions that may arise. In all these cases, the approval of the Court of First
Instance shall be necessary.
The preceding paragraph shall apply when the testator has disposed of his property in favor of the poor of a
definite locality. (749a)
DISPOSITION FOR PRAYERS AND PIOUS WORKS; APPLICABILITY AND RULE IN ART. 1029
Requisites:
1. Disposition for prayers and pious works for the benefit of the testators soul
2. No specification of the application of the disposition
BALANE: Note that there is no institute heir here, and thus the disposition should be void, but the law considers it
valid
Apportionment of the disposition or its proceeds:
One-half to the church or denomination to which the testator belonged
One-half to the State, to be applied as provided for in Article 101
BALANE: Where did the state come from? Why the State? Under what rubric does the State fall: Prayers? Pious
works?
DISPOSITIONS IN FAVOUR OF THE POOR; APPLICABILITY AND RULE IN ART. 1030

The named beneficiaries here are the poor, either of a definite locality (Par. 3) or of no designated locality (Par. 1).
If there is no designated locality, the beneficiaries shall be the poor of the testator's domicile, unless excluded by
the testator in his will.
BALANE: What is meant by the testators domicile? What political subdivision will this refer to? The country? the
region? the city or the barangay?
The determination of the individual beneficiaries within the class designated by the testator shall be made by: (in the
order of preference):
1. Person authorized by the testator
2. Executor or administrator
3. Committed composed of the justice of the peace (now the MTC) , the mayor, and the municipal treasurer
Note that the the approval of the court is necessary
BALANE: The Committee specified in this article will, in fact, not have occasion to function, because if there is a
will, there will always be an executor, if not, then the court will simply appoint an administrator.

INCAPACITY BY REASON OF UNWORTHINESS TO SUCCEED
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;
(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. (756, 673, 674a)

This article applies to ALL kinds of succession
Paragraphs 1, 2, 3, 5 and 6 are the same as in disinheritance.
Thus, there are only 3 new grounds, paragraphs 4, 7, and 8.
BALANE: Note that paragraph 4 is inoperative and has no application because there is no law penalizing misprision
of murder. No law has been passed obligating a person to report to the authorities the fact of the testators death.
RULE IN ART. 1032; EFFECT OF UNWORTHINESS

RULE: UNWORTHINESS GIVES RISE TO TOTAL DISQUALIFICATION FROM THE INHERITANCE
The unworthy heir is incapacitated to succeed from the offended party by any form of succession: the legitime,
testamentary, and intestate.
Thus, unworthiness and disinheritance have identical effects. Unworthiness is disinheritance imposed by law.
That unworthiness deprives the unworthy heir even of the legitime is clear from Article 1035
BALANE: If these grounds are present, the law itself disinherits the heir. This is legal disinheritance. The effect is
exactly the same as disinheritance, which is total exclusion from the inheritance
NEW GROUNDS FOR UNWORTHINESS TO SUCCEED (THAT ARE NOT GROUNDS FOR DISINHERITANCE)
1. Any person convicted of adultery or concubinage with the spouse of the testator
2. Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to
change one already made
Summary of Grounds for Disinheritance and Unworthiness to Succeed
Disinheritance of Disinheritance of Parent or Disinheritance of Unworthiness to Succeed

Child or Descendant Ascendant Surviving Spouse
Provision Art. 919 Art. 920 Art. 921 Art. 1032
Common 1. Guilty of attempt on the life of testator, his spouse, descendants, or ascendants
Grounds 2. Groundless/false accusation of the testator of a crime punishable by imprisonment of 6 years or more
3. Causes the testator to make or change a will by fraud, violence, intimidation or undue influence
4. Conviction for adultery or concubinage with testators spouse (Except for disinheritance of spouse)

Disinheritance of Disinheritance of Parent or Disinheritance of Unworthiness to Succeed
Child or Descendant Ascendant Surviving Spouse
Common N/A
Grounds
for
1. Unjustifiably refuses to give support
Disinherit
ance
Particular 1. Seriously maltreats 1. Abandonment of children 1. Giving cause 1. Abandonment of children

Grounds the testator by 2. Induced their daughters to for legal 2. Induced their daughters to live a
word or deed live a corrupt or immoral life separation corrupt or immoral life
2. Leads a 3. Attempt against the 2. Giving cause 3. Attempt against the daughters
dishonourable or daughters virtue for loss of virtue
disgraceful life 4. Culpable loss of parental parental 4. Failure to report fact of violent
3. Conviction of a authority authority death of the testator to the
crime penalized by 5. Attempt on the life of the authorities
civil interdiction other parent, unless there 5. Any person who by the same
is reconciliation means prevents another from
making a will, or from revoking
one already made, or who
supplants, conceals, or alters the
latter's will;
6. Any person who falsifies or forges
a supposed will of the decedent.
RESTORATION TO CAPACITY
Article 1033. The cause of unworthiness shall be without effect if the testator had knowledge thereof at the
time he made the will, or if, having known of them subsequently, he should condone them in writing. (757a)
Article 922. A subsequent reconciliation between the offender and the offended person deprives the latter of
the right to disinherit, and renders ineffectual any disinheritance that may have been made. (856)
HOW AN UNWORTHY HEIR IS RESTORED TO CAPACITY

The unworthiness is set aside and the unworthy heir restored to capacity in two ways:
1. A written condonation, or
2. The execution by the offended party of a will with knowledge of the cause of unworthiness
BALANE: Is it NOT enough that the offended party execute a will with knowledge of the existence of the cause
of unworthiness. The better opinion seems to be that the will must also either institute the unworthy heir or
restore him to capacity. Making a will is not enough, there must be a written pardon in the will itself, or in any
other written instrument.
UNWORTHINESS DISINHERITANCE
How Capacity is Restored 1. A written condonation, or 1. Express pardon, or

2. The execution by the offended party of 2. Unequivocal Conduct (which reveals
a will with knowledge of the cause of the testators intent to forgive the
unworthiness offense.)
PROBLEM OF RESTORATION TO CAPACITY IN CASE OF OVERLAPPING GROUNDS OF UNWORTHINESS AND

DISINHERITANCE
Premise: Remember that most of the grounds for unworthiness are also grounds for disinheritance (paragraphs 1, 2, 3,
5, and 6 of Art. 1032). Should the offended party, however, elect to disinherit the offender (on the common grounds),
the two sets of rules (on disinheritance and unworthiness) would overlap. Note that there is no problem if the offended
party does not choose to disinherit the offending herein, because then only the rules on unworthiness will operate.
The problem then arises: how is the disqualified heir restored to capacity?

BALANE: Under the rules on disinheritance, a subsequent reconciliation is enough (Article 922); under those on
unworthiness, either a written pardon or a subequent will is required. Supposing that there is a reconciliation but
nothing in writing, will it be correct to conclude that the heir is restored to capacity under the rules on disinheritance
but stays disqualified under the rules on unworthiness? This seems unacceptable because that would make the
rules on unworthiness (which is by operation of law and is only the implied will of the offended party) prevail over
those on disinheritance (which is his express will).
In other words, the issue is, why does the law impose stricter requirements to restore the heir to capacity in
case of disqualification based on the implied will of the testator, than his express will. Why is the vehicle for
removal of unworthiness stricter than that of disinheritance? Law reform!!!
Example: Y is convicted on an attempt on the life of his father X. X disinherits Y because of this. Thus, under the
law, Y is both disinherited and unworthy to succeed X. X, because he is very forgiving, decides to reconcile with Y,
however, he failed to execute a pardon in writing. If X dies, can Y succeed him?
2 views:
1. Apply law literally: Y cannot inherit
In that, even if Y is not anymore disinherited, he is still incapacitated to succeed X because
unworthiness, there being no written pardon or will executed to pardon Y.
2. Apply the spirit of the law: Y can inherit
Applying the law literally is illogical because disinheritance is based on the express will of the testator,
while unworthiness is based only on his implied will.
BALANE: According to commentators, if heir is disqualified due to similar grounds, disinheritance should
prevail over unworthiness, meaning reconciliation also erases the effects of unworthiness.
BALANE: The most acceptable reconciliation seems to be the following:
1. If Offended Party does not make a will subsequent to the occurrence of the (common) cause:
Apply Article 1033Unworthiness sets in ipso facto and written condonation is necessary to restore to capacity
2. If Offended Party makes a will subsequent to the occurrence of the (common) cause:
a. If he knew of the cause
If he disinheritsApply Article 922
If he institutes or pardons the offender Offender restored to capacity
If will is silentThis is disputed, but the better opinion seems to be that the unworthiness stays.
b. If he did not know of the cause
Unworthiness stays
WHEN CAPACITY TO SUCCEED MUST BE DETERMINED
Article 1034. In order to judge the capacity of the heir, devisee or legatee, his qualification at the time of the
death of the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of article 1032, it shall be necessary to wait until final judgment is
rendered, and in the case falling under No. 4, the expiration of the month allowed for the report.
If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall
also be considered. (758a)
Generally, capacity of the heir (devise, or legatee) to succeed, should be determined at the time of the
decedents death.
Because that is when successional rights vest (Article 777)
EXCEPT:
1. If institution is subject to a suspensive condition: Capacity of the heir should be determined at the time of
the decedents death AND at the time of the happening of the condition
2. If heir is unworthy to succeed and final judgment is a requisite to the ground of unworthiness: Capacity
of the heir should be determined at the time of final judgment
This is if the ground of unworthiness is paragraphs 2, 3, or 5 of Art. 1032

REPRESENTATION IN UNWORTHINESS
Article 1035. If the person excluded from the inheritance by reason of incapacity should be a child or
descendant of the decedent and should have children or descendants, the latter shall acquire his right to the
legitime.The person so excluded shall not enjoy the usufruct and administration of the property thus inherited
by his children. (761a)
Remember that unworthiness (under incapacity to succeed) is one of the three occasions for representation to operate
Representation in unworthiness (as also in predecease and disinheritance) extends not only to the legitime, but also
to whatever portion in intestate succession the person represented may have been entitled to.
BALANE: The first paragraph of this article should not be taken to imply that representation is confined to the
legitime.
Remember also that there is representation in the collateral line for intestacyIf the unworthy heir is a brother or sister,
his children (nephews and nieces of the decedent) will represent.
RULES REGARDING THE INCAPACITATED HEIR
Article 1036. Alienations of hereditary property, and acts of administration performed by the excluded heir,
before the judicial order of exclusion, are valid as to the third persons who acted in good faith; but the co-
heirs shall have a right to recover damages from the disqualified heir. (n)
Article 1037. The unworthy heir who is excluded from the succession has a right to demand indemnity or any
expenses incurred in the preservation of the hereditary property, and to enforce such credits as he may have
against the estate. (n)
Article 1038. Any person incapable of succession, who, disregarding the prohibition stated in the preceding
articles, entered into the possession of the hereditary property, shall be obliged to return it together it its
accessions.
He shall be liable for all the fruits and rents he may have received, or could have received through the
exercise of due diligence. (760a)
Article 1040. The action for a declaration of incapacity and for the recovery of the inheritance, devise or legacy
shall be brought within five years from the time the disqualified person took possession thereof. It may be
brought by any one who may have an interest in the succession. (762a)
APPLICABILITY OF ART. 1036, 1037 AND 1038

These articles pertain to the rights and obligations of the disqualified or incapacitated heir in relation to hereditary
property
RULES IN ART. 1036, 1037 AND 1038

1. IN CASE OF ALIENATIONS AND ACTS OF ADMINISTRATION PERFORMED BY THE DISQUALIFIED HEIR, BEFORE THE
JUDICIAL ORDER OF EXCLUSION
Acts are valid as to third persons in good faith
But, the co-heirs have the right to recover damages from the excluded heir
The validity of the alienation is determined by the good faith or bad faith of the transferee, not of the transferor
(the excluded heir).
For the transferee to be in good faith, he must have acquired the thing for value and without knowledge of the
defect of the transferors title.
Thus, a donee cannot claim the benefit of this provision, since he did not acquire for value.
BALANE: This applies the doctrine of innocent purchaser for value without prejudice to the right to damages of
the prejudiced heirs against the incapacitated heir.

Void as to persons in bad faith
2. IN CASE OF EXPENSES INCURRED IN THE PRESERVATION OF THE HEREDITARY PROPERTY OR CREDITS AGAINST THE
ESTATE
Disqualfied heir has right to demand indemnity or reimbursement of the expenses, or to enforce his claims of credit
against the estate
Good faith/bad faith is immaterial because what are involved are necessary expenses
Same rules of possessors in bad faith (Art. 443, 546)
3. IN CASE OF UNLAWFUL POSSESSION OF THE HEREDITARY PROPERTY
The disqualfied heir is obliged to return it together it its accessions, and is also liable for all the fruits and rents he
may have received, or could have received through the exercise of due diligence.
The disqualified heir here is a possessor in bad faith, thus, the law applies to him the rules on possession in bad
faith (Art. 549)
What is the period for action to recover (the property unlawfully possessed by the disqualified heir?
Five (5) years from the time the disqualified heir took possession of the property
This is also the period when to bring an action for the declaration of incapacity.
Note that this is a special prescriptive period for this action. It is an exception to the prescriptive periods for
recovery of movables (8 years) and of immovables (30 years) (Articles 1140 and 1141)
LAW GOVERNING THE CAPACITY TO SUCCEED
Article 1039. Capacity to succeed is governed by the law of the nation of the decedent. (n)
Note that it is the national law of the decedent, NOT that of the heir that governs capacity to succeed.
This is the same principle in Article 16, par. 2. (regarding intestate and testamentary successions, both with respect
to the order of succession and to the amount of successional rights and to the intrinsic validity of the testamentary
provisions)
SECTION 3: ACCEPTANCE AND REPUDIATION OF THE INHERITANCE
ACCEPTANCE OR REPUDIATION AS A FREE AND VOLUNTARY ACT
Article 1041. The acceptance or repudiation of the inheritance is an act which is purely voluntary and free.
(988)
Article 1054. Should there be several heirs called to the inheritance, some of them may accept and the others
may repudiate it. (1007a)
The heir has the freedom to accept or renounce the inheritance

BALANE: It should be noted that the rules for acceptance are much more liberal than those for repudiation. This is
because acceptance is beneficial, whereas repudiation is prejudicial to the successor. Note that repudiation is
synonymous with renunciation, but the latter is easier to pronounce.
The acceptance or renunciation is essentially free and voluntary.
Applies to all kinds of succession
Similar to the acceptance of a donation
Based on the principle that no one can be required to accept a benefit Non potest liberalitas nolenti adquiri.
Liberality cannot be acquired by someone unwilling
If there are several heirs, their right to accept or right corresponds to the aliquot share to which they are
entitled.

RETROACTIVE EFFECT OF ACCEPTANCE OR RENUNCIATION
Article 1042. The effects of the acceptance or repudiation shall always retroact to the moment of the death of
the decedent. (989)
Based on the principle that the moment of death is the time succession vests (Art. 777)
Consequences of Retroactivity:
1. Acceptance
The successor will be deemed to have owned and possessed the property from the precise moment of the
decedents death.
This rule has consequences with respect to acquisitive prescription, capacity to succeed, representation, etc.
2. Renunciation
The renouncer is deemed never to have owned or possessed the property.
Consequently, the substitute, co-heir, or intestate heir who gets the property in default of the renouncer is
deemed to have owned and possessed it from the moment of the decedents death.
3. Conditional Institutions
The principle of retroactivity is not overridden even if the institution is subject to a suspensive condition.
Upon the happening of the condition, the property passes to the heir but with retroactive effect.
This is the same principle enunciated in conditional obligations (Article 1187). Similarly, if the condition does
not happen, the property goes to the appropriate successor, with the same retroactive effect.
However, the provisions of Art. 880 should be complied with; the property should be placed under administration
during the interim.
BALANE: Nothing is vested to the renouncing heir, he is deemed never to have acquired anything by virtue of
succession. Correlatively, the person who acquires and accepts it as a consequence of the renunciation is deemed
to have acquired it from the moment of the decedents death.
WHEN ACCEPTANCE OR REPUDIATION SHOULD BE MADE
Article 1043. No person may accept or repudiate an inheritance unless he is certain of the death of the person
from whom he is to inherit, and of his right to the inheritance. (991)
his compulsory heirs is void
Article 1347. No contract may be entered into upon future inheritance except in cases expressly authorized by
law.
Heir must have knowledge and certainty of the following facts, before he can accept or renounce:
1. Death of the decedent
2. Right to the inheritance
BALANE: Acceptance or renunciation must be made knowingly. Unless the successor has knowledge of the two
things mentioned in this article, his acceptance or renunciation is not effective.
Remember that renunciation of future inheritance is void. It can only be made after the decedents death. (Art. 905,
1347)
CAPACITY TO ACCEPT OR REPUDIATE; WHO CAN ACCEPT OR RENOUNCE
Article 1044. Any person having the free disposal of his property may accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons may be accepted by their parents or guardians.
Parents or guardians may repudiate the inheritance left to their wards only by judicial authorization.

The right to accept an inheritance left to the poor shall belong to the persons designated by the testator to
determine the beneficiaries and distribute the property, or in their default, to those mentioned in article 1030.
(992a)
Article 1878. Special powers of attorney are necessary in the following cases:
(13) To accept or repudiate an inheritance;
Article 1045. The lawful representatives of corporations, associations, institutions and entities qualified to
acquire property may accept any inheritance left to the latter, but in order to repudiate it, the approval of the
court shall be necessary. (993a)
Article 1046. Public official establishments can neither accept nor repudiate an inheritance without the
approval of the government. (994)
Article 1047. A married woman of age may repudiate an inheritance without the consent of her husband. (995a)
Article 1048. Deaf-mutes who can read and write may accept or repudiate the inheritance personally or
through an agent. Should they not be able to read and write, the inheritance shall be accepted by their
guardians. These guardians may repudiate the same with judicial approval. (996a)
RULES ON CAPACITY TO ACCEPT OR RENOUNCE

1. HEIRS IN GENERAL
Any person having the free disposal of his property may accept or repudiate an inheritance.
This pertains to the capacity to act
How acceptance or renunciation is made
a. Personally
b. Through agent (by special power of attorney)
A married person of age and not incapacitated for any reason may accept or renounce an inheritance without his or
her spouses consent.
2. MINORS OR INCAPACITATED PERSONS
May accept or renounce only through their legal representatives or guardians.
However, for renunciation there is the added requirement of court approval.
Repudiation is an act of alienation of property which must pass the courts scrutiny in order to protect the interest of
the ward.
For deaf-mutes:
a. Literate: considered as capacitated
b. Illiterate: considered as incapacitated
3. TESTAMENTARY GRANTS TO THE POOR
The persons empowered in Article 1030 to select the recipients of testamentary grants to the poor in general are
likewise empowered to accept on their behalf.
But note that these authorized individuals can only accept, not reject the grant
For renunciation, the heirs themselves, must do it
4. JURIDICAL PERSONS
For corporations, associations, institutions and entities qualified to acquire property
Acceptance or renunciation must be made through their authorised legal representative
But in order to repudiate it, the approval of the court shall be necessary
Same rule with minors and incapacitated persons
5. GOVERNMENT
Public official establishments can neither accept nor repudiate an inheritance without the approval of the
government
FORMS OF ACCEPTANCE; HOW ACCEPTANCE IS MADE

Article 1049. Acceptance may be express or tacit.
An express acceptance must be made in a public or private document.
A tacit acceptance is one resulting from acts by which the intention to accept is necessarily implied, or which
one would have no right to do except in the capacity of an heir.
Acts of mere preservation or provisional administration do not imply an acceptance of the inheritance if,
through such acts, the title or capacity of an heir has not been assumed. (999a)
Article 1050. An inheritance is deemed accepted:

(1) If the heirs sells, donates, or assigns his right to a stranger, or to his co-heirs, or to any of them;
(2) If the heir renounces the same, even though gratuitously, for the benefit of one or more of his co-heirs;
(3) If he renounces it for a price in favor of all his co-heirs indiscriminately; but if this renunciation should be
gratuitous, and the co-heirs in whose favor it is made are those upon whom the portion renounced should
devolve by virtue of accretion, the inheritance shall not be deemed as accepted. (1000)
Article 1057. Within thirty days after the court has issued an order for the distribution of the estate in
accordance with the Rules of Court, the heirs, devisees and legatees shall signify to the court having
jurisdiction whether they accept or repudiate the inheritance.
If they do not do so within that time, they are deemed to have accepted the inheritance. (n)
KINDS OF ACCEPTANCE
1. EXPRESS
Can be done either by:
a. Public document
b. Private writing
2. TACIT
One resulting from acts by which the intention to accept is necessarily implied, or which one would have no right to
do except in the capacity of an heir.
It is understood by reference of certain acts of the heirs
Instances of Tacit Acceptance (Art. 1050)
a. If the heirs sells, donates, or assigns his right to a stranger, or to his co-heirs, or to any of them
Onerous or gratuitous conveyance in favor of one, some, or all of his co-heirs, or to a stranger.
Disposition is an act of ownership, which necessarily implies that the heir has accepted the inheritance.
b. If the heir renounces the same, even though gratuitously, for the benefit of one or more of his co-heirs
Gratuitous renunciation in favor of one or some (but not all) of his co-heirs.
This is not in fact a renunciation but a conveyance in favor of the co-heirs specified.
It partakes of the nature of donation and therefore must conform to the prescribed form for donations
If the gratuitous renunciation is in favor of all the co-heirs BUT in proportions different from those in which
they would receive by accretion, it is still a conveyance and must be treated as a tacit acceptance.
Also, if the renunciation in favor of one or some of the co-heirs is for an onerous consideration, there is an
acceptance
c. If he renounces it for a price in favor of all his co-heirs indiscriminately; but if this renunciation should
be gratuitous, and the co-heirs in whose favor it is made are those upon whom the portion renounced
should devolve by virtue of accretion, the inheritance shall not be deemed as accepted
Onerous renunciation in favor of all the co-heirs indiscriminately
This is not in fact a renunciation but a sale of his portion and therefore constitutes a tacit acceptance.
But, if it's a gratuitous renunciation in favor of the co-heirs indiscriminately, it is a true renunciation and
cannot be treated as a tacit acceptance.
Indiscriminate renunciation means a renouncement, gratuitously made, in favor of all the co-heirs who
would get the renounced portion by virtue of accretion.

The same rule applies even if the part renounced in this manner is the legitime, notwithstanding that
there is no accretion in the legitime, as long as the renunciation is indiscriminate.
3. IMPLIED
Acceptance by inaction
Once the court issues an order for the distribution of the estate, the heirs must accept or repudiate the inheritance
within 30 days, if they fail to do so, they are deemed to have accepted it.
BALANE: The law interprets silence in your favour, silence means acceptance in this case
FORMS OF REPUDIATION; HOW REPUDIATION IS MADE
Article 1051. The repudiation of an inheritance shall be made in a public or authentic instrument, or by petition
presented to the court having jurisdiction over the testamentary or intestate proceedings. (1008)
FORMS OF REPUDIATION
Either by:
1. Public or authentic instrument
BALANE: Authentic here should be taken to mean genuine
2. Petition filed in the settlement proceedings
BALANE: Note that the law has stricter requirements for renunciation, since it is not beneficial to the heir
REPUDIATION IN FRAUD OF CREDITORS; ACCION PAULIANA
Article 1052. If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition
the court to authorize them to accept it in the name of the heir.
The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their credits. The
excess, should therebe any, shall in no case pertain to the renouncer, but shall be adjudicated to the persons
to whom, in accordance with the rules established in this Code, it may belong. (1001)
Article 1177. The creditors, after having pursued the property in possession of the debtor to satisfy their
claims, may exercise all the rights and bring all the actions of the latter for the same purpose, save those
which are inherent in his person; they may also impugn the acts which the debtor may have done to defraud
them. (1111)
Article 1313. Creditors are protected in cases of contracts intended to defraud them. (n)
LIMITATION ON THE HEIRS RIGHT TO RENOUNCE

Generally, the heir has the freedom to renounce his inheritance, but he should pay his debts first, thus, under Art. 1052,
the creditor can compel the heir to accept the inheritance, but only up to the amount of his credit.
Any amount in excess of that may be validly renounced by the debtor-heir.
This is an instance of accion pauliana, which is the right given to creditors to impugn or set aside contracts,
transactions, or dispositions of their debtors which will prejudice or defraud them.
TRANSMISSIBILITY OF THE RIGHT TO REPUDIATE
Article 1053. If the heir should die without having accepted or repudiated the inheritance his right shall be
transmitted to his heirs. (1006)
Article 1054. Should there be several heirs called to the inheritance, some of them may accept and the others
may repudiate it. (1007a)

RULE: THE RIGHT TO RENOUNCE IS ITSELF A TRANSMISSIBLE RIGHT
This rule is a consequence of the principle that the right of succession vests at the moment of death (Article 777).
Therefore, the right of the heir who dies before accepting or renouncing is already vested and is transmitted to the
heirs heirs.
The right to the inheritance itself forms part of the inheritance of the heir (Articles 774 & 776) and therefore, the heir of
the heir can exercise the right granted by this article only if he (the heirs heir) accepts his own predecessors
inheritance.
If he renounces, obviously he cannot exercise this right.
Right to renounce transmitted is pro-rata if there are several heirs, (even if transmitted to the heirs heirs)
Ex: If X dies and Y, his heir, himself dies before accepting or renouncing the inheritance, leaving A, B, and C as his
own heirsA, B, and C each has the right to accept or renounce his corresponding one-third interest in whatever Y
was entitled to inherit from X.
BALANE: Should one or more of the heirs renounce, to whom will the repudiated portion go? To the ones who
accept, by accretion? Or to the intestate heirs of the decedent whose inheritance the predecessor of the heirs was
unable to accept or renounce?
REPUDIATION IN CASE OF HEIR INHERITS BY TESTACY AND INTESTACY
Article 1055. If a person, who is called to the same inheritance as an heir by will and ab intestato, repudiates
the inheritance in his capacity as a testamentary heir, he is understood to have repudiated it in both
capacities.
Should he repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he may still
accept it in the latter capacity. (1009)
Article 955. Any compulsory heir who is at the same time a legatee or devisee may waive the inheritance and
accept the legacy or devise, or renounce the latter and accept the former, or waive or accept both.

The premise of this is when a person is both a testamentary heir and an intestate heir, with respect to the same
inheritance
Art. 1055 does NOT apply to the legitime
RULES IN ART. 1055; EFFECT OF REPUDIATION IN CASE OF OVERLAPPING MODES OF SUCCESSION

1. IF HE RENOUNCES AS TESTAMENTARY HEIR (OR LEGATEE OR DEVISEE)
He is deemed to have renounced as intestate heir as well.
2. IF HE RENOUNCES AS INTESTATE HEIR WITHOUT KNOWLEDGE OF HIS BEING A TESTAMENTARY HEIR
He is NOT deemed to have renounced as testamentary heir and may therefore accept or renounce separately in the
latter capacity.
BALANE:
The rationale is that while the testamentary disposition is the express will of the testator, intestacy is only his
implied will. Thus, one who renounces the express will is deemed to have renounced the implied also, but not the
other way around.
Supposing the heir renounces as intestate heir with knowledge of his being a testamentary heir, may he accept in
the latter capacity? This is disputed; by the wording of paragraph 2 of this article, it seems he cannot accept as
testamentary heir. BUT, in light of the rationale of the rule, however, it seems he can.
Example: X dies, survived only by his brother Y. X left a will, instituting Y to 1/8 of his estate. Y is thus a
testamentary heir (1/8) and intestate heir (7/8), thus, Y is an heir in two concepts. If Y renounces as testamentary
heir, he is also deemed to have renounced as intestate heir (rationale that express will prevails over implied will).
But the reverse is not true. If Y renounces as intestate heir, he is NOT deemed to have renounced as testamentary
heir, regardless of whether he had no knowledge of his being a testamentary heir (by virtue of Art. 1055), or if he
had such knowledge (by virtue of the rationale)
Why would Y renounce as intestate heir but not as testamentary heir, well, because Y can think that if he
inherits by will, he is sure that X really wants him to get that part, but with regard to the part that passes only by

operation of law, he might think that X didnt want him to have that since he didnt include that in his will (if X
wanted to, he could have done so, since he already made a will)
In view of the rationale of the rule, should the heir be simultaneously a compulsory heir and a testamentary heir, he
can accept either or both. The legitime passes not because of any implied will or wish of the decedent but by strict
operation of law, irrespective of the decedents wishes. Thus, the term ab intestato in this article refers solely to
intestate succession. To the same effect is the rule laid down in Article 955, par. 2, supra, regarding a person who is
simultaneously a compulsory heir and a legatee or devisee.
IRREVOCABILITY OF ACCEPTANCE AND REPUDIATION
Article 1056. The acceptance or repudiation of an inheritance, once made, is irrevocable, and cannot be
impugned, except when it was made through any of the causes that vitiate consent, or when an unknown will
appears. (997)
RULE: GENERALLY, THE ACCEPTANCE OR REPUDIATION OF AN INHERITANCE, ONCE MADE, IS IRREVOCABLE, AND
CANNOT BE IMPUGNED
BALANE: There is a principle of irrevocability, because otherwise, it can cause chaos, if the heir keeps changing his
mind
EXCEPT: In cases of:
1. Vitiated Consent
In case of violence, intimidation, undue influence, mistake, and fraud.
2. Appearance of an Unknown Will
This applies if the newly-discovered will is subsequent to any will which may have formed the basis for the
acceptance or renouncement.
The new will (assuming it is valid and admitted to probate) reopens the whole affair and will call for a new
acceptance or renunciation.
SECTION 4: EXECUTORS AND ADMINISTRATORS
Article 1058. All matters relating to the appointment, powers and duties of executors and administrators and
concerning the administration of estates of deceased persons shall be governed by the Rules of Court. (n)
Article 1059. If the assets of the estate of a decedent which can be applied to the payment of debts are not
sufficient for that purpose, the provisions of articles 2239 to 2251 on Preference of Credits shall be observed,
provided that the expenses referred to in article 2244, No. 8, shall be those involved in the administration of
the decedent's estate. (n)
Article 1060. A corporation or association authorized to conduct the business of a trust company in the
Philippines may be appointed as an executor, administrator, guardian of an estate, or trustee, in like manner
as an individual; but it shall not be appointed guardian of the person of a ward. (n)
See Rules 78-90 of the Rules of Court for Art. 1058 and 1060
See Rules of Concurrence and Preference of Credits for Art. 1059
SECTION 5: COLLATION
DEFINITION OF COLLATION
Three components of Collation
1. Collation as Computation.
This is a simple accounting or arithmetical process, whereby the value of all donations inter vivos made by the
decedent is added to his available assets in order to arrive at the value of the net hereditary estate.

This process has been discussed as the third step under Article 908
2. Collation as Imputation
This is the process by which donations inter vivos made by the decedent are correspondingly charged either to
the donees legitime or against the disposable portion.
Articles 909 and 910 provide for this.
3. Collation as Return
This takes place when a donation inter vivos is found to be inofficious (exceeds the disposable portion) and so
much of its value as is inofficious is returned to the decedents estate to satisfy the legitimes.
Again Articles 909 and 910 contain provisions on this.
BALANE: The biggest problem about collation is the term; or more precisely, the several meanings which the term
carries. Basically, collation, as used in this section, carries three meanings. The articles in this section swing from one
meaning to another. Hence, it is necessaryfor a proper understanding of the articlesto understand the sense in
which the word collation is used in each article. These three senses are related but distinct.
COLLATION AS COMPUTATION
Article 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of
the estate any property or right which he may have received from the decedent, during the lifetime of the
latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination
of the legitime of each heir, and in the account of the partition. (1035a)
Article 908. To determine the legitime, the value of the property left at the death of the testator shall be
considered, deducting all debts and charges, which shall not include those imposed in the will.
To the net value of the hereditary estate, shall be added the value of all donations by the testator that are
subject to collation, at the time he made them. (818a)
Article 1067. Expenses for support, education, medical attendance, even in extraordinary illness,
apprenticeship, ordinary equipment, or customary gifts are not subject to collation. (1041)
Article 1071. The same things donated are not to be brought to collation and partition, but only their value at
the time of the donation, even though their just value may not then have been assessed.
Their subsequent increase or deterioration and even their total loss or destruction, be it accidental or
culpable, shall be for the benefit or account and risk of the donee. (1045a)
Article 1072. In the collation of a donation made by both parents, one-half shall be brought to the inheritance
of the father, and the other half, to that of the mother. That given by one alone shall be brought to collation in
his or her inheritance. (1046a)
APPLICABILITY OF ART. 1061, 1067, 1071 AND 1072

These articles use collation in the sense of computation
But Art. 1071 and 1072 also use collation in the sense of imputation
These articles contemplate the computation of all donations inter vivos made by the decedent, for the purpose
of determining the value of the net estate.
This is to ensure that the legitimes are not impaired
This is exactly the same thing that is referred to in Art. 908, par. 2., as the third step in the process of computing the
net hereditary estate, as laid down in Article 908
This presupposes that you have already inventoried the assets and paid the debts of the estate.
The process, as already pointed out, is purely arithmetical; it is merely a paper computation, you dont
determine yet if the donations are inofficious at this stage

RULES IN COMPUTING THE VALUE OF THE NET HEREDITARY ESTATE
1. ALL DONATIONS INTER VIVOS IS SHOULD BE INCLUDED IN THE COMPUTATION OF THE NET HEREDITARY ESTATE. (ART.
1061)
Regardless who the donee is (whether made to compulsory heirs or to strangers)
Anyone who is not a compulsory heir is a stranger
BALANE: Art. 1061 seems to suggest that only donations inter vivos to compulsory heirs need be computed.
This is not so. Donations to strangers should also computed, because if not, then you are opening the door to
circumvention of the legitime. Also Art. 1061 seems to suggest that it applies only if there is only one
compulsory heir, but this is erroneous.
EXCEPTION: Expenses for support, education, medical attendance, even in extraordinary illness,
apprenticeship, ordinary equipment, or customary gifts are NOT included in the computation of the net
hereditary estate (Art. 1067)
These items of expenses (really donations) are not subject to collation
BALANE: These are not donations, not being based on liberality, these are based on the parents legal
obligation to support their children The rationale also is that it would be extremely impractical, if not impossible,
to make an accounting of all these items.
Note that the general coverage of support is defined in Article 194 of the Family Code. BUT for purposes of this
article, however, support has a more restricted meaning: it does not include expenses for the recipients
professional, vocational, or other career, because those items are governed by Article 1068
2. THE VALUE OF THE PROPERTY DONATED IS BASED ON THE TIME THE DONATION WAS MADE (ART. 1071)
Since in donations, ownership transfers at the time the donation is perfected.
Thus, any subsequent increase in value is for the donees benefit, and any decrease is for his account.
3. IN CASE OF JOINT DONATIONS (BY SPOUSES IN ACP OR CPG), IT WILL BE TREATED, UPON THE DISSOLUTION OF
THE PROPERTY REGIME, AS PERTAINING IN EQUAL SHARES TO THE ESTATE OF EACH (ART. 1072)
Joint presupposes either a regime of absolute community or of conjugal partnership between the donor spouses
Obviously, the donation by one spouse alone, will be of separately-owned property and should be treated as such.
COLLATION AS IMPUTATION
Article 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly
provided, or if the donee should repudiate the inheritance, unless the donation should be reduced as
inofficious. (1036)
Article 909. Donations given to children shall be charged to their legitime.
Donations made to strangers shall be charged to that part of the estate of which the testator could have
disposed by his last will.
Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to
the rules established by this Code. (819a)
shall be charged to his legitime.
Should they exceed the portion that can be freely disposed of, they shall be reduced in the manner prescribed
by this Code. (847a)
Article 1064. When the grandchildren, who survive with their uncles, aunts, or cousins, inherit from their
grandparents in representation of their father or mother, they shall bring to collation all that their parents, if
alive, would have been obliged to bring, even though such grandchildren have not inherited the property.

They shall also bring to collation all that they may have received from the decedent during his lifetime, unless
the testator has provided otherwise, in which case his wishes must be respected, if the legitime of the co-
heirs is not prejudiced. (1038)
Article 1065. Parents are not obliged to bring to collation in the inheritance of their ascendants any property
which may have been donated by the latter to their children. (1039)
Article 1066. Neither shall donations to the spouse of the child be brought to collation; but if they have been
given by the parent to the spouses jointly, the child shall be obliged to bring to collation one-half of the thing
donated. (1040)
Article 1068. Expenses incurred by the parents in giving their children a professional, vocational or other
career shall not be brought to collation unless the parents so provide, or unless they impair the legitime; but
when their collation is required, the sum which the child would have spent if he had lived in the house and
company of his parents shall be deducted therefrom. (1042a)
Article 1069. Any sums paid by a parent in satisfaction of the debts of his children, election expenses, fines,
and similar expenses shall be brought to collation. (1043a)
Article 1070. Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit, shall not be
reduced as inofficious except insofar as they may exceed one-tenth of the sum which is disposable by will.
(1044)
Article 1071. The same things donated are not to be brought to collation and partition, but only their value at
the time of thedonation, even though their just value may not then have been assessed.
Their subsequent increase or deterioration and even their total loss or destruction, be it accidental or
culpable, shall be for the benefit or account and risk of the donee. (1045a)
Article 1072. In the collation of a donation made by both parents, one-half shall be brought to the inheritance
of the father, and the other half, to that of the mother. That given by one alone shall be brought to collation in
his or her inheritance. (1046a)
Article 1073. The donee's share of the estate shall be reduced by an amount equal to that already received by
him; and his co- heirs shall receive an equivalent, as much as possible, in property of the same nature, class
and quality. (1047)
Article 1074. Should the provisions of the preceding article be impracticable, if the property donated was
immovable, the co-heirs shall be entitled to receive its equivalent in cash or securities, at the rate of
quotation; and should there be neither cash or marketable securities in the estate, so much of the other
property as may be necessary shall be sold at public auction.
If the property donated was movable, the co-heirs shall only have a right to select an equivalent of other
personal property of the inheritance at its just price. (1048)
WHAT IS THE BATTLE OF HASTINGS?

It took place on October 14, 1066. Remember this when you reach Art. 1066
This was the norman conquest of England. It was a battle between the Norman-French army of Duke William II and the
English Army of King Harold. Normans won
This event marked the birth of the common-law tradition
BALANE: If you dont know this youre stupid and ignorant. Dont look for this in your stupid machines! Legal history!

APPLICABILITY OF ART.1062 TO 1073 (EXCEPT 1067)

These articles refer to collation in the sense of imputation, in determining which dispositions made by the decedent
are correspondingly charged either to the donees legitime or against the disposable/free portion.
BALANE: This presupposes that the donations have already been collated in the sense of computation, this
answers the question of how are you going to treat the donations, whether its part of the legitime or not.
RULES IN DETERMINING WHICH DONATIONS ARE CHARGED TO THE LEGITIME OR THE FREE PORTION
1. DONATIONS INTER VIVOS TO COMPULSORY HEIRS ARE IMPUTED TO THE HEIRS LEGITIME
See Art. 1062, 909, 910, 1069, this is the general rule, they are considered as an advance on the legitime.
These include any sums paid by a parent in satisfaction of the debts of his children, election expenses, fines, and
similar expenses (Art. 1069)
These are also considered donations
EXCEPTIONS: In these cases, the donation is imputed to the free portion:
a. If the donor provides otherwise
In this case, you treat the donee (who is compulsory heir) as if he is a stranger
b. If the donee renounces the inheritance, predeceases or is incapacitated to succeed (provided there is
no representation)
Because in this case the donee gives up his status as a compulsory heir and therefore cannot be considered
as one.
If there is representation, you still impute it to the legitime
c. The expenses incurred by the parents for the childs professional, vocational, or other career (Art.
1068)
These are courses beyond the secondary level
But they must not be in officious, meaning it does not impair the legitimes
BALANE: By implication these are computed as part of the net hereditary estate (collation in the computation
sense) because these are no longer covered by the parents legal obligation to support. But these are not
imputed to the legitime because the law provides so
EXCEPTION TO EXCEPTION: The expenses for such will still be charged to their legitimate if the
parents provide that it will be so charged
Should the parents provide that it will charged to the legitime, the child is entitled, to deduct from the said
amount the sum corresponding to what his parents would have spent on him had he stayed at home and
loafed.
Pag may galit yung magulang mo sayo, but the child has the right to deduct the expenses the parent
would have incurred if he would have made tambay at home
d. The excess amount of donations inter vivos which exceed the legitime of the donee
BALANE: Supposing the compulsory heir received a donation inter vivos from the decedent but the value of
the donation exceeds the donee's legitime?The donation will be imputed to the donees legitime to the
extent of the legitimes value and the excess, to the free portion.
e. Wedding gifts by parents and ascendants to children or descendants consisting of jewelry, clothing,
and outfit, if they do not exceed 1/10 of the estate (Art. 1070)
Note that the gifts must be jewelry, clothing and outfit only, not other stuff such as real property
Under Art. 1070 the value of such wedding gifts cannot go beyond one-tenth of the free portion of the
donors estate.
Any excess will be considered inofficious and should be returned in the same manner and at the same time
as other inofficious donations.
As to the allowable one-tenth, this is to be imputed to the free portion
BALANE: This is very confusing, even Manresa does not understand it. Art. 1070 says that if it is inofficious
(meaning it exceeds 1/10 of the free portion), it needs to be reduced. But why should you reduce it simply
because it is inofficious? after all you can donate up to the extent of the entire free portion. Thus, according
to Manresa (whcih I agree with) if the donation goes beyond 1/10 of the estate, the excess is imputed to the
legitime, but the 1/10 is still imputed to the free portion
What if the compulsory heir is a grandchild who inherits by right of representation?
See Art. 1064, this contemplates a situation where the grandchildren (of the decedent) are inheriting by
representation concurrently with children (uncles and aunts of the grandchildren) who are inheriting in their own
right, or with other grandchildren (cousins of the grandchildren).

Rules in Art. 1062 will also apply in this case (in relation to the rules of Art. 1064, 1063), in that the
following dispositions will be imputed to the Grandchilds legitime:
a. Whatever the parent whom they are representing would have been obliged to collate
This covers donations inter vivos or testamentary dispositions (Art. 1063), if the testator provides it
will be charged to the legitime) by the decedent to the parents
BALANE: This is logical. Imputation is required even if the heir in this case is not the recipient of the
donation, because he is merely representing his parent to the legitime
b. Whatever they themselves have received from the grandparent by gratuitous title
This is also subject to the same rules and exceptions laid down in Article 1062
BALANE: Not logical but fair, while he is merely inheriting by representation of his parent, the
dispositions given to the heir themselves must be imputed to the legitime
What about joint donations of parents (governed by ACP or CPG) in favor of their children?
See Art. 1072, A joint donation by the parents will be treated, upon the dissolution of the property regime, as
pertaining in equal shares to the estate of each.
2. DONATIONS INTER VIVOS AND TESTAMENTARY DISPOSITIONS TO STRANGERS ARE IMPUTED TO THE FREE
PORTION
See Art. 909, obviously they are not imputed to the legitime, because they are not compulsory heirs
This covers the situation where:
a. The decedent donates to his grandchild while the parents of such grandchild are still alive when the
decedent dies, meaning the grandchild is not a compulsory heir (Art. 1065)
A parent (who are the compulsory heirs of the decedent) is NOT obliged to bring to collation any property
which may have been donated by the decedent to their children (the grandchild of the decedent).
This is because the parent is not the recipient of the donation
The donation to the grandchild (not being compulsory heirs in this case) should be imputed to the free
portion, since it is a donation to a stranger.
What if the parent dies, and the grandchild, who was a recipient of such donations, now inherits the
legitimate by right of representation? Governed by Art. 1062 and 1064 above
b. The decendent donates to his son-in-law or daughter-in-law (Art. 1066)
The donations are separate property of the donee (who is merely the spouse of a compulsory heir) and,
logically, should not be imputed to the legitime of the donors child (the donees spouse)
BUT, if the donation is made to the spouses jointly, one-half belongs to the donors child and should be
treated in accordance with Article 1062 and the other half is the property of the donors son- or daughter-in-
law and should be treated as a donation to a stranger.
Needless to say, this presumption of equality of aliquot shares will yield to a different designation by the
donor.
What if they are inofficious?
You need to reduce it to the extent that the legitimes are not impaired
3. TESTAMENTARY DISPOSITIONS TO COMPULSORY HEIRS ARE IMPUTED TO THE FREE PORTION
See Art. 1063, generally, they should NOT be imputed to the legitime, but to the free portion.
Hence, the compulsory heir receives the testamentary disposition in addition to his legitime.
BALANE: Why? because, if you impute it to the legitime, then the testamentary disposition will be useless
EXCEPTION: If the testator provides otherwise
Should the testator provide that the testamentary disposition will be charged to the legitime, testamentary
disposition in favor of the heir will be merged with his legitime.
That will make the disposition illusory.
Art. 1064 will also apply in case the grandchild is the compulsory heir inheriting by representation, the
testamentary dispositions in favor of the parent (of the grandchild who he will be representing) will be charged to
the legitime if the testator provides for it.
RULE IN DETERMINING THE VALUE TO BE IMPUTED

RULE: ONLY THE THINGS VALUE AT THE TIME THE DONATION WAS MADE SHOULD BE IMPUTED WHETHER TO THE
LEGITIME OR THE FREE PORTION (ART. 1071)
Same rule with collation in the sense of computing the value of the net hereditary estate
Any appreciation or depreciation of the thing after that time should be for the donees account, since the donation
transfers ownership to him.

BALANE: This is logical because the property leaves the patrimony of the donor at the time the donation is
perfected
DISPOSITIONS CHARGED TO THE LEGITIME DISPOSITIONS CHARGED TO THE FREE PORTION
1. Donations inter vivos made to compulsory heirs, 1. Donations inter vivos:

UNLESS: a. Made to strangers;
a. When the donor provides otherwise or b. Made to compulsory heirs, if the donor so
b. The donee renounces provides;
c. Those in excess of the legitime c. Made to compulsory heirs who renounce the
2. Expenses incurred by the parents for the childs inheritance;
professional, vocational, or other career, but only d. Made to compulsory heirs, but in excess of their
when the donor provides that it will charged to the legitime, as to the excess.
legitime e. Which are expenses incurred by the parents for
3. Wedding gifts by parents and ascendants to children the childs professional, vocational, or other career
or descendants consisting of jewelry, clothing, and (unless the donor provides otherwise)
outfit, as to the amount exceeding 1/10 of the estate f. Wedding gifts by parents and ascendants to
4. Testamentary Dispositions to compulsory heirs, but children or descendants consisting of jewelry,
only when the testator provides that it will charged to clothing, and outfit (as to the amount equal to or
the legitime less than 1/10 of the estate)
2. Testamentary Dispositions to compulsory heirs
(unless the testator provides that it will be charged to
the legitime) and to strangers
COLLATION AS IMPUTATION (BUT USED WITH THE RULES ON PARTITION)

See Articles 1073 and 1074,
BALANE: These articles merely gives suggestions and guidelines on how to partition the property and uses
collation in the sense of imputation as part of these guidelines. This provisions really talk about partition rather than
collation.
Generally, the donee's share of the estate shall be reduced by an amount equal to that already received by him;
and his co- heirs shall receive an equivalent, as much as possible, in property of the same nature, class and
quality (Art. 1073)
BALANE: This is not a mandatory rule, but merely sets the ideal rule. This rule will yield to a different agreement
among the heirs and is also dependent on the existence/availability of properties of the same nature, class and
quality as that imputed to the donee contemplated here. Most of the time, this rule is not carried out, due to a
different agreement or non-availability of properties. For example, the donee got a fishpond, upon partition, this
should be imputed to his legitime, and depending on the availability of other fishponds, the other heirs should
ideally get fishponds as well. But of course, the other heirs might not be interested in a fishpond, one heir might
want shares of stock since he is not schooled in fishery, this will prevail
If Art. 1073 is impracticable (meaning there are no available properties of the similar nature, class and quality),
the rules of Art. 1074 will apply:
1. If the property donated was immovable
The co-heirs shall be entitled to receive its equivalent in cash or securities, at the rate of quotation; and should
there be neither cash or marketable securities in the estate, so much of the other property as may be necessary
shall be sold at public auction.
2. If the property donated was movable
The co-heirs shall only have a right to select an equivalent of other personal property of the inheritance at its
just price.
BALANE: Art. 1074 provides for the closest analogue to strict equivalence, in case there are not enough of the
same things to distribute among all. Again, this will yield to a contrary agreement among the heirs.
COLLATION IN THE SENSE OF RETURN
Article 909. Donations given to children shall be charged to their legitime. Donations made to strangers shall
be charged to that part of the estate of which the testator could have disposed by his last will. Insofar as they

may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules
established by this Code. (819a)
shall be charged to his legitime. Should they exceed the portion that can be freely disposed of, they shall be
reduced in the manner prescribed by this Code.
Article 1075. The fruits and interest of the property subject to collation shall not pertain to the estate except
from the day on which the succession is opened.
For the purpose of ascertaining their amount, the fruits and interest of the property of the estate of the same
kind and quality as that subject to collation shall be made the standard of assessment. (1049)
Article 1076. The co-heirs are bound to reimburse to the donee the necessary expenses which he has incurred
for the preservation of the property donated to him, though they may not have augmented its value.
The donee who collates in kind an immovable which has been given to him must be reimbursed by his co-heirs
for the improvements which have increased the value of the property, and which exist at the time the partition
if effected.
As to works made on the estate for the mere pleasure of the donee, no reimbursement is due him for them; he
has, however, the right to remove them, if he can do so without injuring the estate. (n)
Article 546. Necessary expenses shall be refunded to every possessor; but only the possessor in good faith
may retain the thing until he has been reimbursed therefor.
Useful expenses shall be refunded only to the possessor in good faith with the same right of retention, the
person who has defeated him in the possession having the option of refunding the amount of the expenses or
of paying the increase in value which the thing may have acquired by reason thereof. (453a)
Article 548. Expenses for pure luxury or mere pleasure shall not be refunded to the possessor in good faith;
but he may remove the ornaments with which he has embellished the principal thing if it suffers no injury
thereby, and if his successor in the possession does not prefer to refund the amount expended. (454)

These articles use collation in the sense of return
See also Art. 909 and 910 (last sentences for both)
It contemplates a situation where the donations inter vivos made to the compulsory heirs are inofficious (meaning they
impair the legitimes or exceed the free portion)
BALANE:
Note that the donations were made in the lifetime of the decedent, but you only know that they are inofficious at
the time of his death
As correctly pointed out by Justice J.B.L. Reyes and Senator Tolentino, the situation treated in this article is
really a case of reduction of inofficious donations and the rules set forth in this article really belong in the
provisions on inofficious donations in Articles 909, 910, and 911. A good deal of confusion would have been
avoided if the Code had not insisted on using the term collation so variedly.
RULES IN CASE THE DONATIONS TO COMPULSORY HEIRS EXCEED THE FREE PORTION
1. REDUCE/RETURN THE DONATIONS (ART. 909)
So much of the value of the donations (to the compulsory heirs) as is inofficious is returned to the decedents estate
to satisfy the legitimes.
Donee in thus case is a compulsory heir
The return can either be total or partial, depending on the in officiousness

The donee may either return the:
a. Property donated itself
b. Cash value
Took this up already in satisfaction of legitimes, placed this here just for emphasis
2. THE FRUITS OF THE DONATION SHALL BELONG TO THE ESTATE FROM THE TIME OF THE DECEDENTS DEATH (ART.
1075)
The fruits and interest of the property subject to collation shall not pertain to the estate except from the day on
which the succession is opened.
If any donation turns out to be inofficious, then the obligation to return it to the estate arises as of the time the
succession vests (the time of the decedents death) because it is from that time that the compulsory heirs right
to the inheritance becomes absolute (Article 777). From that time therefore the compulsory heir is entitled to the
fruits.
How do you value the fruits?
For the purpose of ascertaining their amount, the fruits and interest of the property of the estate of the same
kind and quality as that subject to collation shall be made the standard of assessment.
Extent of the Estates Right to the Fruits
BALANE: The extent of the donees obligation to return the fruits depends on the degree of inofficiousness of
the donation
a. Donation is totally inofficious
The entirety of the fruits and interests shall pertain to the estate/co-heirs
b. Donation is partially in officious
The right to the fruits and interests shall be prorated between the estate/co-heirs and the donee, in
proportion to their respective interests over the property.
Example: X gives his son Y a mango plantation, when X dies it is discovered that the donation was in officious.
If the donation was totally inofficious, Y has to return the mango plantation (or its cash value) plus ALL the fruits
(civil, industrial, or natural) but counted only from the time of the decedents death. If the donation was only 50%
inofficious, Y has to return 50% of its value, plus 50% of the fruits, but counted only from the time of the
decedents death.
3. ESTATE OR CO-HEIRS SHOULD REIMBURSE THE DONEE FOR EXPENSES (ART. 1076)
What can be involved is either be total or partial return (depending on the degree of inofficiousness)
Expenses contemplated:
a. Necessary (for preservation and management)
b. Useful (improvements which increase the value of real property)
c. Ornamental (expenses for mere pleasure)
Rules on reimbursement of expenses (depends on the extent of the obligation to return)
The rules are similar to rules in possession in good faith, the donee-heir is treated as a possessor in good faith
(Art. 546, and 548)
TOTAL RETURN PARTIAL RETURN
1. Necessary Expenses Total reimbursement

Partial reimbursement in proportion to the value
2. Useful Expenses Total reimbursement provided that the improvement is to be returned.
still in existence
3. Ornamental Expenses No reimbursement, but right of removal granted if no injury will be caused
*But for partial return, if the property is physically divided and the ornament happens to be located in the
portion assigned to the donee, he will have all the rights of ownership.

SECTION 6: PARTITION AND DISTRIBUTION OF ESTATE; SUBSECTION 1: PARTITION
WHEN THERE IS CONTROVERSY IN THE COLLATION
Article 1077. Should any question arise among the co-heirs upon the obligation to bring to collation or as to
the things which are subject to collation, the distribution of the estate shall not be interrupted for this reason,
provided adequate security is given. (1050)
Article 51 of the Family Code. The delivery of the presumptive legitimes herein prescribed shall in no way
prejudice the ultimate successional rights of the children accruing upon the death of either or both of the
parents; but the value of the properties already received under the decree of annulment or absolute nullity
shall be considered as advances on their legitime. (Family Code, par. 3 thereof.)
Article 227 of the Family Code. If the parents entrust the management or administration of any of their
properties to an unemancipated child, the net proceeds of such property shall belong to the owner. The child
shall be given a reasonable monthly allowance in an amount not less than that which the owner would have
paid if the administrator were a stranger, unless the owner, grants the entire proceeds to the child. In any
case, the proceeds thus given in whole or in part shall not be charged to the child's legitime.
RULE IN CASE ANY QUESTIONS ARISE AMONG THE CO-HEIRS UPON THE OBLIGATION TO BRING TO COLLATION OR
RETURN
Should any question arise among the co-heirs upon the obligation to bring to collation or as to the things which are
subject to collation, the distribution of the estate shall not be interrupted for this reason, provided adequate
security is given
The division and distribution of the estate can be made partially, should there be controversy as to the inclusion of
certain items either in the computation of the estates value or the imputation of heirs shares.
The distribution can proceed on the items that are not controverted.
See also Art. 51 and 227 of the Family Code
SECTION 6: PARTITION AND DISTRIBUTION OF ESTATE
SUBSECTION 1: PARTITION
DEFINITION OF PARTITION
Article 1078. Where there are two or more heirs, the whole estate of the decedent is, before its partition,
owned in common by such heirs, subject to the payment of debts of the deceased. (n)
DEFINITION OF PARTITION; WHAT IS PARTITION?

Partition is the process in which the estate is finally disposed of or assigned actually/physically or
constructively to the heirs
Remember that the immediate effect of the decedents death is the vesting of the successional rights of the
successors, because the rights to the succession are transmitted from the moment of the death of the decedent
(Art. 777)
BALANE:
When the decedent dies, there is already juridical assignment or transfer of the estate to the heirs. Partition is
the means of how this is really done. After the decedents death, there will always be some interval of time
before partition occurs, it may be a short interval if there is no issue, or a long one if there are a lot of issues or
if there is a will
The consequence of this juridical vesting upon the decedents death is that a co-ownership is automatically
constituted by operation of law over the net hereditary estate. This co-ownership will subsists until partition is

effected. Thus, until there is partition, the properties may even pass to the heirs of the heirs, co-owned by the
other heirs of the heirs, as we saw in the case of..forgot the case sorry :(
WHAT IS PARTITIONED?
Only the mass of properties constituting the net hereditary estate is partitioned.
What the successors acquire vested rights over is the net estate and the net estate is what remains after:
1. All the unpaid debts of the decedent are paid, and
2. The value of all the donations inter vivos is added
BALANE: Thus, debts first have to be paid; it is possible, if the debts exceed the assets, that after the debts are paid,
there will be no estate to speak of. If, however, the decedents gross assets exceed his liabilities, or if there are
inofficious donations to be returned, his net estate passes to his successors (heirs, legatees, devisees) at the precise
moment of death. The estate, however, is a mass of properties, usually consisting of various items. The immediate
effect, therefore, of the decedents deathas far as successional law is concernedis a co-ownership of the heirs over
the entire mass. (The legatees and devisees will acquire a right to the specific items given to them, assuming the
legacies and devises are not inofficious).
HOW IS PARTITION EFFECTED?

The actual partition of the estate among the heirs, terminating the co-ownership can be done basically through two
methods:
1. EXTRAJUDICIAL PARTITION (BY AGREEMENT AMONG THE HEIRS)
BALANE:
Before extra-judicial partition, you have to ask the following questions to the heirs/estate first, if there is no
problem, the partition will fast.
1. Did the decedent die intestate? (no will)
2. Are there any debts?
3. What are the properties left by the decedent? (compute here whether the legitimes have been impaired)
4. Are the heirs in agreement as to the partition?
There should be no will, and no debts, and the heirs should be in agreement as to the partition.
This is much faster than judicial partition, I had a cousin who died, his children approached me and
sought help to handle the partition of his estate. So they went to my office, back then I was still in a law
office. I asked if there was debts, they said there was none. I asked what properties the decedent left,
they gave me an inventory. I asked if they were all in agreement as to how the estate is to be partitioned,
they said they were. They were not very rich and didn't have a lot of properties but they were by no
means paupers. They had a property in Mandaluyong and a resthouse in the province, among others. I
executed the paperwork, the agreement of partition, and published the partition, etc. I told them after the
period of publication, they can have the titles transferred in their names. They paid me handsomely for
my legal services by treating me to lunch, they were family anyway.
2. JUDICIAL PARTITION
This is if there is a will for probate, or a disagreement between the heirs, essentially if there is issue in the
partition. This involves an ordinary action for partition
SEQUENCE OF EVENTS INVOLVING PARTITION

1. Upon decedents deathco-ownership of heirs over net hereditary or partible estate
2. Subsequent partition
a. By extrajudicial agreement (Rule 74, Sec. 1,Rules of Court), or
b. Through judicial order in appropriate settlement proceedings (Rule 90, Rules of Court).
BALANE: Actually, the judicial proceeding in which the partition is ordered comprises the entire settlement of the estate
of the decedent, covered by Rules 73 to 90 of the Rules of Court. In this part of successional law (the partition of the
estate), substantive law and procedural law intersect.
KINDS OF PARTITION
Article 1079. Partition, in general, is the separation, division and assignment of a thing held in common among
those to whom it may belong. The thing itself may be divided, or its value. (n)

Article 1082. Every act which is intended to put an end to indivision among co-heirs and legatees or devisees
is deemed to be a partition, although it should purport to be a sale, and exchange, a compromise, or any other
transaction. (n)
Article 1086. Should a thing be indivisible, or would be much impaired by its being divided, it may be
adjudicated to one of the heirs, provided he shall pay the others the excess in cash.
Nevertheless, if any of the heirs should demand that the thing be sold at public auction and that strangers be
allowed to bid, this must be done. (1062)
Partition ends the co-ownership among the co-heirs as to the thing partitioned.
Kinds of Partition:
1. Actual
Physical division of the thing among the co-heirs
2. Constructive
Any act, other than physical division, which terminates the co-ownership (such as sale to a third person)
Such as a:
a. Sale, exchange, compromise or any other transaction (Art. 1082) or
BALANE: Anything which terminates the co-ownership in whole or in part is a partition (even if only one
of the co-heirs wants out by selling his share to strangers or other co-heirs, in this case, it is a partial
partition)
b. Sale of the thing and division of the proceeds among the heirs (Art. 1086)
This will have to be resorted to if the thing is essentially indivisible or if physical partition will so diminish
its value that it becomes unserviceable or useless.
To whom thing may be sold:
i. To a third person, or
The property will be sold at public auction if any of the heirs want
BALANE: This applies if the co-heirs are quarrelling, even if the others want to buy it but one co-
heir objects wants to sell it to others para lang hindi mapunta sa co-heirs nya, but the proceeds
will be less because they have to pay for the expenses of the auction. MAGIC MIKE
ii. If none of the co-heirs object, to any one of them who is interested.
If more than one are interested in buying, they may buy it jointly and have the proceeds
distributed among the others to the extent of their respective shares. But the co- ownership will
continue as to the buyers.
TUASON VS. TUASON, JR. & GREGORIO ARANETA, INC. 88 PHIL. 428 (1951)
The contract in this case, precisely has for its purpose and object the dissolution of the co-ownership and of
the community by selling the parcel held in common and dividing the proceeds of the sale among the co-
owners. The obligation imposed in the contract to preserve the co-ownership until all the lots shall have been
sold, is a mere incident to the main object of dissolving the co-ownership. By virtue of the document, the
parties thereto practically and substantially entered into a contract of partnership as the best and
most expedient means of eventually dissolving the co-ownership, the life of said partnership to end
when the object of its creation shall have been attained.
CASILANG VS DIZON, GR 180269, FEBRUARY 20, 2013
The parties verbal partition is valid, and has been ratified by their taking possession of their
respective shares
The validity of an oral partition is well-settled in our jurisdiction.
An agreement of partition may be made orally or in writing. An oral agreement for the partition of the
property owned in common is valid and enforceable upon the parties. The Statute of Frauds has no
operation in this kind of agreements, for partition is not a conveyance of property but simply a segregation
and designation of the part of the property which belong to the co-owners
On general principle, independent and in spite of the statute of frauds, courts of equity have enforce [sic]
oral partition when it has been completely or partly performed.
Regardless of whether a parol partition or agreement to partition is valid and enforceable at law, equity will
[in] proper cases, where the parol partition has actually been consummated by the taking of possession in

severalty and the exercise of ownership by the parties of the respective portions set off to each, recognize
and enforce such parol partition and the rights of the parties thereunder.
Thus, it has been held or stated in a number of cases involving an oral partition under which the parties
went into possession, exercised acts of ownership, or otherwise partly performed the partition
agreement, that equity will confirm such partition and in a proper case decree title in accordance with the
possession in severalty.
In numerous cases it has been held or stated that parol partition may be sustained on the ground of estoppel
of the parties to assert the rights of a tenant in common as to parts of land divided by parol partition as to
which possession in severalty was taken and acts of individual ownership were exercised. And a court of
equity will recognize the agreement and decree it to be valid and effectual for the purpose of concluding the
right of the parties as between each other to hold their respective parts in severalty.
A parol partition may also be sustained on the ground that the parties thereto have acquiesced in and ratified
the partition by taking possession in severalty, exercising acts of ownership with respect thereto, or
otherwise recognizing the existence of the partition.
PARTITION BY THE CAUSANTE (DECEDENT) HIMSELF
Article 1080. Should a person make partition of his estate by an act inter vivos, or by will, such partition shall
be respected, insofar as it does not prejudice the legitime of the compulsory heirs.
A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or manufacturing
enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the
other children to whom the property is not assigned, be paid in cash. (1056a)
Article 904. The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly
specified by law. Neither can he impose upon the same any burden, encumbrance, condition, or substitution
of any kind whatsoever
NATURE OF PARTITION BY THE CAUSANTE

BALANE: The causante (decedent) can himself effect the partition of his estate, if he wants to, after all that is his estate
A partition made by the causante has the following characteristics:
1. It takes effect only upon death
2. It is revocable as long as the causante is alive
Hence the causante can change or modify it, or even rescind it during his lifetime.
3. The legitimes cannot be impaired
These characteristics stem from the fact that the partition is based on succession as the mode of transfer, and
succession is necessarily mortis causa. Succession, in our law, cannot take place during the causante's lifetime; that
would be a donation inter vivos, not succession.
HOW THE CAUSANTE (HIMSELF) MAY MAKE THE PARTITION

1. BY WILL
The causante can make the partition in a will
Meaning, he states which properties will go to whom
This is not necessarily a testamentary disposition
The testator is allowed to do so even if he has compulsory heirs. He can also partition which properties will
constitute the legitimes.
The partition is valid as long as the items given do not impair the legitime.
Example:
X has no compulsory heirs. He states in his will "I give to A 1/3 of my estate. To comprise A's share, I would like
her to get my house in Makati.
X has a son A and B, who are each entitled to 1/4 legitime. He can provide in a will that he gives A his
business (because he is good in business) which is to be his legitime. This is valid as long as the value of the
business does not impair the legitime of B.
2. BY ACT INTER VIVOS

The causante makes the partition in a written instrument (not a will)
Form of partition by act inter vivos
There is authority to the effect that a partition inter vivos should be in writing and in a public instrument.
(Fajardo v. Fajardo, 54 Phil. 842(1930]) however the obiter in Chavez v. IAC (191 SCRA 211(1990]) that even an
oral partition is valid.
In case of a partition inter vivos, must there be a prior will?
YES, a mere partition inter vivos which does not observe the formalities of a will cannot, by itself, make
testamentary dispositions, because that would circumvent the requirement of law that dispositions mortis causa
can be made only by means of a will.
A person cannot, in the guise of making a partition, make disposition of property to take effect upon his
death.
BALANE: You cannot make a partition by acts inter vivos first then make a will, a will must first be made, before
partition can take place by acts inter vivos. But it can be possible for a person not to make a will but make a
partition, this is in the case of intestacy. No need for a will in that case because intestacy already governs the
rules of approportionment. But once the causante changes the proportions (provided for by intestacy), he should
make a will
LEGASTO VS. VERZOSA 54 PHIL. 766 (1930)
Both the Spanish Supreme Court and the learned and authoritative commentator, Manresa, are of
opinion that a testator may, by an act inter vivos, partition his property, but he must first make a
will with all the formalities provided for by law. And it could not be otherwise, for without a will
there can be no testator; when the law, therefore, speaks of the partition inter vivos made by the
testator of his property, it necessarily refers to that property which he has devised to his heirs.
A person who disposes of his property gratis inter vivos is not called a testator, but a donor. In
employing the word testator, the law evidently desired to distinguish between one who freely
donates his property in life and one who disposes of it by will to take effect after his death
It is an indispensable condition precedent to a testator partitioning his estate inter vivos that he
have made a valid will disposing of said estate among his heirs; and if this will be declared null
and void, the partition made by the testator in pursuance of its provisions is likewise null and
void, for where these provisions cease to exist, the partition made in conformity therewith also
becomes null and void, as the cessation of the cause implies the cessation of the effect.
In this case, since the will is null and void for lack of the legal requisites, consequently, the partition
which she made of her estate among her nieces the defendants-appellants herein, during her lifetime
is likewise null and void.
BALANE:
Legasto lays down the rule that a partition inter vivos is valid only if there is a supporting will on
which the partition is based. The Legasto ruling was reiterated in Alsua-Betts v. CA (92 SCRA 332
[1979]) and Dimayuga v. CA (129 SCRA 110 [1984]); Alsua-Betts in fact amplified the ruling by
holding that the partition inter vivos is void even if a subsequent will is executed in conformity with
the provisions of the prior partition.
Possible effect of amended wording of Article 1080; The Legasto, Alsua-Betts, and Dimayuga, rulings
were all decided under Article 1056 of the Spanish Code, which is the predecessor provision of the
present Article 1080. The wording of the old Article 1056, however, is not identical to that of the
present article. The original provision specified testator
Article 1080, however, does not say testator; it says person. Is the change significant? We should
assume that the change in wording was not unintentional, but an indication of an intent to modify the
operation of the law. We can, therefore, with reason conclude that, under the present provision,
a partition inter vivos can be validly made even without a prior supporting will, provided that it
is not used to make mortis causa dispositions. Nothing can take the place of a will to dispose of
property mortis causa. Hence, the only way a partition without a will can be valid is by following
strictly the intestate portions provided by law, the partition should conform exactly to the
portions provided by law in intestate succession, for then the causante would not be making
testamentary dispositions in the partitionthe dispositions would be by virtue of intestate succession.
The case of Chavez v. IAC (191 SCRA. 211(1990]), decided under the present article, and
recognizing the validity of a partition inter vivos even without a supporting will could have been cited
as authority for the view just presented above, but for the fact that the authoritative force of Chavez is
considerably diminished by its rulings: 1) giving an irrevocable character to the partition inter vivos,

and 2) allowing a conveyance by the compulsory heirs of their legitimes even during their lifetimes.
For obvious reasons, these two rulings should raise eyebrows very high.
LIMITATION ON PARTITION BY THE CAUSANTE

The legitimes of the causantes compulsory heirs cannot be impaired by partition made by him, whether in a will or
by an act inter vivos.
PARTITION TO KEEP AN ENTERPRISE INTACT

A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or manufacturing enterprise
intact, may make partition of his estate by an act inter vivos, or by will, by ordering that the legitime of the other children
to whom the property is not assigned, be paid in cash.
It seems only a parent is allowed the privilege of this paragraph.
It is understood that this privilege (to make the partition in such a way as to keep the enterprise intact) can be
exercised only if enough cash or other property is available to satisfy the legitimes of the other children.
Remember that under no circumstances should the legitimes be impaired.
WHEN THIRD PERSON (MANDATARY) MAY MAKE THE PARTITION
Article 1081. A person may, by an act inter vivos or mortis causa, intrust the mere power to make the partition
after his death to any person who is not one of the co-heirs.
The provisions of this and of the preceding article shall be observed even should there be among the co-heirs
a minor or a person subject to guardianship; but the mandatary, in such case, shall make an inventory of the
property of the estate, after notifying the co-heirs, the creditors, and the legatees or devisees. (1057a)
A mandatary is the person entrusted to make the partition of the decedents estate
He cannot be a co-heir to ensure fairness and impartiality
BALANE: Does this article also prohibit a devisee or legatee from being appointed? It is not certain. If he is given a
specific portion, then there is no temptation to favor himself. But if his share be a generic portion, then the
temptation exists.
RIGHT OF THE HEIRS TO DEMAND PARTITION
Article 1083. Every co-heir has a right to demand the division of the estate unless the testator should have
expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as
provided in article 494. This power of the testator to prohibit division applies to the legitime.
Even though forbidden by the testator, the co-ownership terminates when any of the causes for which
partnership is dissolved takes place, or when the court finds for compelling reasons that division should be
ordered, upon petition of one of the co-heirs. (1051a)
Article 1830. Dissolution is caused:

(1) Without violation of the agreement between the partners:
(a) By the termination of the definite term or particular undertaking specified in the agreement;
(b) By the express will of any partner, who must act in good faith, when no definite term or particular is
specified;
(c) By the express will of all the partners who have not assigned their interests or suffered them to be
charged for their separate debts, either before or after the termination of any specified term or
particular undertaking;
(d) By the expulsion of any partner from the business bona fide in accordance with such a power conferred
by the agreement between the partners;

(2) In contravention of the agreement between the partners, where the circumstances do not permit a
dissolution under any other provision of this article, by the express will of any partner at any time;
(3) By any event which makes it unlawful for the business of the partnership to be carried on or for the
members to carry it on in partnership;
(4) When a specific thing which a partner had promised to contribute to the partnership, perishes before the
delivery; in any case by the loss of the thing, when the partner who contributed it having reserved the
ownership thereof, has only transferred to the partnership the use or enjoyment of the same; but the
partnership shall not be dissolved by the loss of the thing when it occurs after the partnership has
acquired the ownership thereof;
(5) By the death of any partner;
(6) By the insolvency of any partner or of the partnership;
(7) By the civil interdiction of any partner;
(8) By decree of court under the following article. (1700a and 1701a)
Article 1831. On application by or for a partner the court shall decree a dissolution whenever:
(1) A partner has been declared insane in any judicial proceeding or is shown to be of unsound mind;
(2) A partner becomes in any other way incapable of performing his part of the partnership contract;
(3) A partner has been guilty of such conduct as tends to affect prejudicially the carrying on of the business;
(4) A partner wilfully or persistently commits a breach of the partnership agreement, or otherwise so conducts
himself in matters relating to the partnership business that it is not reasonably practicable to carry on the
business in partnership with him;
(5) The business of the partnership can only be carried on at a loss;
(6) Other circumstances render a dissolution equitable.
On the application of the purchaser of a partner's interest under article 1813 or 1814:
(1) After the termination of the specified term or particular undertaking;
(2) At any time if the partnership was a partnership at will when the interest was assigned or when the
charging order was issued. (n)
Article 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any
time the partition of the thing owned in common, insofar as his share is concerned. Nevertheless, an
agreement to keep the thing undivided for a certain period of time, not exceeding ten years, shall be valid.
This term may be extended by a new agreement. A donor or testator may prohibit partition for a period which
shall not exceed twenty years. Neither shall there be any partition when it is prohibited by law.
Art. 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of
the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition
the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns
the property or constituted the family home. (238a)
RULE: ANY CO-HEIR MAY DEMAND PARTITION AT ANY TIME.

This is the same rule laid down in Article 494, par. I.
BALANE: Generally, any co-heir may demand partition, this is a right of each co-heir, the others need not consent to
it.
EXCEPTIONS: There are some instances when partition cannot be demanded.
a. WHEN FORBIDDEN BY THE TESTATOR
This is when the testator provides that his estate should remain undivided after he dies
This enforced co-ownership may cover even the legitimes (legitime may remain undivided if testator
wants)
But this must be for a period NOT exceeding 20 years
BALANE: The law does not like co-ownership, it is a source of quarrels. Thus, the law limits the testators
right to prohibit partition

EXCEPTIONS TO EXCEPTION: Despite this imposed indivision, partition may be demanded:
i. When any of the causes for the dissolution of a partnership occurs (Articles 1830-1831)
ii.When the court finds compelling reasons for partition.
BALANE: Such as if the co-heirs are always quarrelling to the point that they want to kill each other
b. WHEN THE CO HEIRS AGREE ON INDIVISION
But this must be for a period NOT exceeding 10 years, renewable for like periods
BALANE: Because eventually magaaway din young ma co-heirs na yan
See also Art. 494, par. 2
c. WHEN THE LAW PROHIBITS PARTITION
Such as in the case of the Family Home (Art. 159, Family Code)
PARTITION IN CASE TESTAMENTARY DISPOSITIONS ARE SUBJECT TO SUSPENSIVE CONDITIONS
Article 1084. Voluntary heirs upon whom some condition has been imposed cannot demand a partition until
the condition has been fulfilled; but the other co-heirs may demand it by giving sufficient security for the
rights which the former may have in case the condition should be complied with, and until it is known that the
condition has not been fulfilled or can never be complied with, the partition shall be understood to be
provisional. (1054a)
Art. 1084 presupposes institutions with a suspensive condition.

Rules:
1. The heir instituted under a suspensive condition acquires no rights unless and until the condition happens.
Their right as heir vests only when the suspensive condition happens.
2. The other heirs has the right to demand partition, but they must give adequate security.
They must give sufficient security for the rights which the former may have in case the condition should be
complied with, and until it is known that the condition has not been fulfilled or can never be complied with, the
partition is still provisional.
RULE OF EQUALITY IN PARTITION
Article 1085. In the partition of the estate, equality shall be observed as far as possible, dividing the property
into lots, or assigning to each of the co-heirs things of the same nature, quality and kind. (1061)
BALANE: We already saw this in collation (Art. 1073,1074). It applies to heirs similarly situated. It is subject to
agreement between the parties and the realities of the situation, if there are properties of the same kind. Its NOT
mandatory but is merely a guide.
How do co-heirs share the partitioned estate?
1. Quantitative
The shares of the co-heirs are NOT necessarily equal in value, but are determined by law and by will.
2. Qualitative
Equality in nature, kind, and quality (whatever the aliquot portions be)
So that if A gets a fishpond, B should also be given one.
EXCEPT:
a. If the causante has made the partition himself;
b. If co-heirs agree otherwise
c. If qualitative equality impossible or impracticable (no similar properties)
REIMBURSEMENT OF EXPENSES IN PARTITION
Article 1087. In the partition the co-heirs shall reimburse one another for the income and fruits which each one
of them may have received from any property of the estate, for any useful and necessary expenses made upon
such property, and for any damage thereto through malice or neglect. (1063)

Article 500. Upon partition, there shall be a mutual accounting for benefits received and reimbursements for
expenses made. Likewise, each co-owner shall pay for damages caused by reason of his negligence or fraud.
(n)
BALANE: This pertains to the interval of time between which the decedent died and the partition is effected, in that
time, some heirs might have taken the property and incurred expenses or received fruits, those will be subject to
reimbursement and accounting accordingly. This article lays down the same rule contained in the Title on Co-ownership
(See Art. 500)
Upon partition, the co-heirs shall render a mutual accounting of benefits received and expenses (necessary
and useful) incurred by each of them.
1. Obligation to Reimburse for Fruits Received
Any heir who, between the decedents death and partition time, received fruits from the estate shall reimburse
his co-heirs their respective shares, in proportion to the hereditary interest of each.
2. Right to be Reimbursed for Expenses (Necessary and Useful) Incurred
Any heir who incurred necessary or useful expenses on the hereditary estate may demand reimbursement from
his co-heirs in the same proportion.
SALE OF HEREDITARY SHARE BEFORE PARTITION; RIGHT OF REDEMPTION BY OTHER CO-HEIRS
Article 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of
the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale,
provided they do so within the period of one month from the time they were notified in writing of the sale by
the vendor. (1067a)
Article 1620. A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-
owners or of any of them, are sold to a third person. If the price of the alienation is grossly excessive, the
redemptioner shall pay only a reasonable one. Should two or more co-owners desire to exercise the right of
redemption, they may only do so in proportion to the share they may respectively have in the thing owned in
common. (1522a)
RULE: HEIR HAS RIGHT TO CONVEY HIS HEREDITARY SHARE EVEN BEFORE PARTITION (EVEN THOUGH HIS SHARE IS
NOT YET DETERMINATE)
Remember that this is a consequence of the rule that successional rights vest upon the decedents death (Art. 777).
Consequently, an heir may dispose of his aliquot share after that time; he may do this gratuitously or onerously
IN THE EVENT ANY CO-HEIR SELLS HIS ALIQUOT PORTION TO A STRANGER BEFORE PARTITION TIME, ART. 1088
ENTITLES ANY CO-HEIR TO REDEEM THE PORTION SOLD.
BALANE: See also Art. 1620 which applies where the co-ownership covers specific property: Article 1088, where
the co-ownership covers the mass of the hereditary estate. But the distinction is academic, the rule is exactly the
same.
Note the following rules:
1. THE SALE MUST BE TO A STRANGER
A stranger within the meaning of this article is anyone who is not a co-heir (Basa v. Aguilar)
BALANE: Even a son may be a stranger, if he is not a co-heir
2. THE RIGHT MAY BE EXERCISED ONLY BEFORE PARTITION, NOT AFTER.
Caro v. CA, 113 SCRA 10 (1982), interpreting similar rule in Article 1620
3. CO-HEIR MUST EXERCISE THE RIGHT OF REDEMPTION WITHIN ONE MONTH FROM WRITTEN NOTICE TO THEM BY
THE VENDOR.
Written notice (from the stranger-buyer) is required; without it, the prescriptive period of one month, does not
run.
The Supreme Court has, as a rule, interpreted this requirement of written notice strictly.
BALANE: Actual or even constructive notice is NOT enough. Oral is NOT enough.
GARCIA VS. CALALIMAN 172 SCRA 201 (1989)

Both the letter and spirit of the new Civil Code argue against any attempt to widen the scope of the
notice specified in Article 1088 by including therein any other kind of notice, such as verbal or by
registration. If the intention of the law had been to include verbal notice or any other means of
information as sufficient to give the effect of this notice, then there would have been no necessity or
reasons to specify in Article 1088 that the said notice be made in writing for, under the old law, a verbal
notice or information was sufficient
Written notice is indispensable, actual knowledge of the sale acquired in some other manners by
the redemptioner, notwithstanding. He or she is still entitled to written notice, as exacted by the
Code, to remove all uncertainty as to the sale, its terms and its validity, and to quiet any doubt
that the alienation is not definitive.
The law not having provided for any alternative, the method of notifications remains exclusive, though
the Code does not prescribe any particular form of written notice nor any distinctive method for written
notification of redemption
BALANE: The Court has, in at least three recent cases, however, relaxed the requirement of written
notice and held that actual notice to, or knowledge by, the co-heir achieves the purpose of the law and
meets the legal requirement. Alonzo v. IAC, 150 SCRA 259 (1987); Distrito v. CA, 197 SCRA 606 (1991);
Fernandez v. Tarun, 391 SCRA 653 [2002]. Alonzo declared, however, that it was not abandoning the
previous rulings but was simply laying down an exception to the general rule, in view of peculiar
circumstances. Whether these three cases are merely exceptions or are portents of changing
jurisprudence, remains to be seen. The subsequent case of Primary Structures v. Valencia, 409 SCRA
371 [2003], characterizing the written notice as mandatory and stating that notwithstanding
actual knowledge of a co-owner, the latter is still entitled to a written notice may indicate a return
to the previous strict interpretation. The subsequent case of Cua v. Vargas, 506 SCRA 374 [2006]
also adopts the strict interpretation. And so swings the pendulum.
4. WHERE MORE THAN ONE CO-OWNER WISH TO REDEEM, ALL THE CO-OWNERS WISHING TO REDEEM MAY DO
SO, BUT IN PROPORTION TO EACH ONES HEREDITARY INTEREST OVER THE MASS.
This is implicit in Article 1088 but explicit in Article 1620
DELIVERY OF THE TITLE OF OWNERSHIP TO THE CO-HEIRS
Article 1089. The titles of acquisition or ownership of each property shall be delivered to the co-heir to whom
said property has been adjudicated. (1065a)
Article 1090. When the title comprises two or more pieces of land which have been assigned to two or more
co-heirs, or when it covers one piece of land which has been divided between two or more co-heirs, the title
shall be delivered to the one having the largest interest, and authentic copies of the title shall be furnished to
the other co-heirs at the expense of the estate. If the interest of each co-heir should be the same, the oldest
shall have the title. (1066a)
Once partition is made, respective titles are given to the respective heirs. So that they can transfer the titles in their
names.
This is particularly important in case of registered land because the old title has to be surrendered so that a new title in
the name of the heir may be issued.
Art. 1090 only provides for the right over the document. The co-heirs, however, have the right to have the title divided
into individual titles, a separate one for each of the owners to correspond to the separate portions held by them
respectively.
BALANE: This is to enable everybody to get their respective properties. Usually you must have the land resurveyed.
I wont ask this in the finals
SUBSECTION 2: EFFECTS OF PARTITION
TERMINATION OF CO-OWNERSHIP

Article 1091. A partition legally made confers upon each heir the exclusive ownership of the property
adjudicated to him. (1068)
CO-HEIRS OBLIGATION OF MUTUAL WARRANTY
Article 1092. After the partition has been made, the co-heirs shall be reciprocally bound to warrant the title to,
and the quality of, each property adjudicated. (1069a)
Article 501. Every co-owner shall, after partition, be liable for defects of title and quality of the portion
assigned to each of the other co-owners. (n)
Article 1093. The reciprocal obligation of warranty referred to in the preceding article shall be proportionate to
the respective hereditary shares of the co-heirs, but if any one of them should be insolvent, the other co-heirs
shall be liable for his part in the same proportion, deducting the part corresponding to the one who should be
indemnified. Those who pay for the insolvent heir shall have a right of action against him for reimbursement,
should his financial condition improve. (1071)
Article 1094. An action to enforce the warranty among heirs must be brought within ten years from the date
the right of action accrues. (n)
Article 1095. If a credit should be assigned as collectible, the co-heirs shall not be liable for the subsequent
insolvency of the debtor of the estate, but only for his insolvency at the time the partition is made.
The warranty of the solvency of the debtor can only be enforced during the five years following the partition.
Co-heirs do not warrant bad debts, if so known to, and accepted by, the distributee. But if such debts are not
assigned to a co-heir, and should be collected, in whole or in part, the amount collected shall be distributed
proportionately among the heirs. (1072a)
Article 1096. The obligation of warranty among co-heirs shall cease in the following cases:
(1) When the testator himself has made the partition, unless it appears, or it may be reasonably presumed, that
his intention was otherwise, but the legitime shall always remain unimpaired;
(2) When it has been so expressly stipulated in the agreement of partition, unless there has been bad faith;
(3) When the eviction is due to a cause subsequent to the partition, or has been caused by the fault of the
distributee of the property. (1070a)
RULES ON MUTUAL WARRANTIES BY CO-HEIRS

1. RULES ON MUTUAL WARRANTIES IN CO-OWNERSHIP APPLIES AMONG THE CO-HEIRS (ART. 1092)
Partition among co-heirs imposes upon them the same mutual obligation of warranties imposed among co-owners
in general (Art. 501)
The applicable rules on warranties are found in Articles 1547-1580, in the Title on Sales, insofar as those articles
are not inconsistent with the rules given in this subsection.
These are:
a. Warranties against eviction/ Warranty of Title
b. Warranties against hidden defects/ Warranty of Quality
BALANE: But these defects must have arisen before the partition
Example: Three co-heirs A, B and C divided the land they inherited equally. But part of the land given to A did not
really belong to the predecessor so A loses part of his share. B and C will be liable for the warranty for the part lost.
They will either: (a) give cash; or (b) give land.
2. PROPORTIONAL LIABILITY OF CO-HEIRS ON WARRANTY (ART. 1093)
Obligation of warranty shall be proportionate to the respective hereditary shares of the co-heirs
3. INSOLVENCY BY CO-HEIR, OTHERS BOUND TO MAKE GOOD THE WARRANTY (ART. 1093)

Should one of the co-heirs bound to make good the warranty be insolvent, his portion shall be borne
proportionally by all, including the one entitled to the warranty
Example: Co-heirs are A, B, C, D, and E in equal shares of P60,000.00 each. B claims warranty for the total
amount of his share, for having been evicted. A, C, D, and E have to contribute P12,000.00 each to make good the
warranty. (Since there was eviction in the amount of P60,000.00, it follows that the total value to be partitioned was
only P240,000.00; hence, P48,000.00 each). Should A be insolvent, his share of P12,000.00 shall be borne by all
the others, including B. Hence, C, D, and E have to contribute P3,000.00 more, making their individual liability
P15,000.00. B receives a total of P45,000.00 having borne his own share of P3,000.00 from As insolvency.
Exception to right to reimbursement from insolvent obligor: The obvious exception to this is insolvency
judicially declared, under the Insolvency Law, since judicially declared insolvency extinguishes all obligations
4. IN CASE CREDIT IS ASSIGNED TO CO-HEIR IN PARTITION
Credits can be assigned to a co-heir as part of his share in the partition. It is property
This presupposes that the co-heir accepts as his share in the partition, accounts receivables or credits
BALANE: If he does this, hes not very bright. Foolhardy is the co-heir who will accept a collectible as part of his
share in the partition. A credit, even under the best of circumstances, is aleatory. If the debtor in the account
receivable later becomes insolvent, the risk is borne by the co-heir.
Note the following consequences if the credit is NOT paid:
1. Debtor was insolvent prior to the partition
Other co-heirs may be liable, under warranty
This warranty has a special prescriptive period of five years.
2. Debtor became insolvent after the partition
No warranty, other co-heirs not liable
The warranty covers only insolvency of the decedents debtor at the time of partition, NOT subsequent
insolvency, for which the co-heir takes the risk.
3. The credit is a bad debt is known as such to the co-heir receiving it
There is NO warranty for bad debts, if so known to, and accepted by, the co-heir as his share
But if such debts are not assigned to a co-heir, and should be collected, in whole or in part, the amount
collected shall be distributed proportionately among the heirs
BALANE: A co-heir who accepts a known bad debt as his share is either a fool or a masochist. The law does
not protect you from your own foolishness.
5. PRESCRIPTION OF THE ACTION TO ENFORCE THE WARRANTY (ART. 1094)
An action to enforce the warranty among heirs must be brought within ten years from the date the right of action
accrues.
The action accrues from the time the portion was lost or the hidden defect was discovered.
5. INSTANCES WHEN THERE IS NO MUTUAL WARRANTY (ART. 1096)
BALANE: Note that the wording of cease in Art. 1096 is inaccurate, it is wrong to refer to it as a cessation, since
there was none to begin with. It should be read as does not arise or does not exist
No warranty in these cases:
a. Partition by the testator himself (save where the legitime has been impaired)
b. Agreement among the co-heirs to suppress the warranty
c. Supervening events causing the loss or the diminution in value
d. Fault of the co-heir
e. Waiver
EXCEPTION: The legitimes have been impaired
SUBSECTION 3: RESCISSION AND NULLITY OF PARTITION
GROUNDS FOR RESCISSION AND ANNULMENT OF CONTRACTS
Article 1097. A partition may be rescinded or annulled for the same causes as contracts. (1073a)
Article 1390. The following contracts are voidable or annullable, even though there may have been no damage
to the contracting parties:
(1) Those where one of the parties is incapable of giving consent to a contract;
(2) Those where the consent is vitiated by mistake, violence, intimidation, undue influence or fraud.

These contracts are binding, unless they are annulled by a proper action in court. They are susceptible of
ratification. (n)
Article 1381. The following contracts are rescissible:

(1) Those which are entered into by guardians whenever the wards whom they represent suffer lesion by more
than one-fourth of the value of the things which are the object thereof;
(2) Those agreed upon in representation of absentees, if the latter suffer the lesion stated in the preceding
number;
(3) Those undertaken in fraud of creditors when the latter cannot in any other manner collect the claims due
them;
(4) Those which refer to things under litigation if they have been entered into by the defendant without the
knowledge and approval of the litigants or of competent judicial authority;
(5) All other contracts specially declared by law to be subject to rescission. (1291a)
Article 1098. A partition, judicial or extra-judicial, may also be rescinded on account of lesion, when any one
of the co-heirs received things whose value is less, by at least one-fourth, than the share to which he is
entitled, considering the value of the things at the time they were adjudicated. (1074a)
Article 1099. The partition made by the testator cannot be impugned on the ground of lesion, except when the
legitime of the compulsory heirs is thereby prejudiced, or when it appears or may reasonably be presumed,
that the intention of the testator was otherwise. (1075)
Article 1100. The action for rescission on account of lesion shall prescribe after four years from the time the
partition was made. (1076)
GROUNDS FOR ANNULMENT OF PARTITION (ART. 1390)

1. Incapacity to Contract
2. Vitiated Consent
GROUNDS FOR RESCISSION OF PARTITION

1. Lesion (of more than one-fourth of the value of the things) suffered by wards or absentees
Lesion is economic injury, where the party receives less than he is entitled to receive.
The minimum extent of lesion for rescission to be available is one-fourth (25%).
BALANE: Note the slight variation of Art. 1098 from pars. 1 and 2 of Article 1381, which specifies more than one-
fourth. Evidently, in cases of partition of the inheritance, Article 1098 applies, or at least 1/4. Lesion is exceedingly
difficult to determine and evaluate and is viewed with increasing disfavor by modern civil law.
Example: A is a co-heir of B and C. A is entitled to receive 100. In partition, he receives property worth 80. No
rescission of partition because the lesion is less then 1/4. But A has rights under the warranties. So he can ask for
completion. However, if the property is worth 75. There is lesion so A can demand for the rescission of the partition.
EXCEPTION: A partition made by the testator himself is NOT subject to rescission, even in case of lesion
EXCEPTIONS TO EXCEPTION: In the following cases, even if the partition is made by the testator, rescission
applies:
a. Legitimes are impaired (even if the lesion is less than one-fourth)
b. Mistake by the testator or vitiation of his intent (Testators intent was not carried out)
BALANE: Outside these two exceptions, the heirs cannot complain, swerte na sila may nakuha silk
The action for rescission on account of lesion shall prescribe after four years from the time the partition
was made. (Art. 1099)
This is the same period laid down in the general rule of rescission of contracts
Prof. Balane said something about from the time of the discovery of the lesion
2. Entered in fraud of creditors
3. Involves property under litigation, entered into by the defendant without the knowledge and approval of the
litigants or of competent judicial authority

4. Others declared by law subject to rescission
OBLIGATION OF CO-HEIR SUED FOR RESCISSION
Article 1101. The heir who is sued shall have the option of indemnifying the plaintiff for the loss, or consenting
to a new partition. Indemnity may be made by payment in cash or by the delivery of a thing of the same kind
and quality as that awarded to the plaintiff. If a new partition is made, it shall affect neither those who have
not been prejudiced nor those have not received more than theirjust share. (1077a)
Article 1102. An heir who has alienated the whole or a considerable part of the real property adjudicated to him
cannot maintain an action for rescission on the ground of lesion, but he shall have a right to be indemnified in
cash.
Note that it is the co-heir who is sued for rescission who has the option. He has two choices:
1. Re-partition, or
2. To indemnify the co-heir the amount of the lesion suffered
Example: A, B and C. A is supposed to receive P100,000 as his legitime. He receives only P70,000. A sues B and
C. B and C has the choice of which option to follow. They can either opt for repartition (give A more property so that
he gets P100,000) or opt just to pay A the P30,000.
BALANE: Art. 1102 is unnecessary, since anyway it is the party sued who is given the option. This is purely academic
INCOMPLETENESS OF PARTITION; SUPPLEMENTAL PARTITION
Article 1103. The omission of one or more objects or securities of the inheritance shall not cause the
rescission of the partition on the ground of lesion, but the partition shall be completed by the distribution of
the objects or securities which have been omitted. (1079a)
Incompleteness of the partition is not a ground for rescission (such as certain properties werent included because they
were not known).
The remedy is a supplemental partition.
OMISSION OF CO-HEIR FROM THE PARTITION
Article 1104. A partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it
be proved that there was bad faith or fraud on the part of the other persons interested; but the latter shall be
proportionately obliged to pay to the person omitted the share which belongs to him. (1080)
BALANE:
This is not preterition from the inheritance under Article 854. This is simply an omission of a compulsory heir in the
partition, the assumption being that something is left for him in the form of an undisposed portion of the estate. It
could be intentional (but no bad faith or fraud) or inadvertent. The omitted heir simply gets his rightful share (Non v.
CA, 325 SCRA 652 [2000]).
I have a friend who is a lawyer (who lived in some province), he had 6 children, his eldest was a girl and the others
were boys. His eldest son was the type who wanted to live life to the fullest and was always restless, one day, the
son disappeared. My friend, the father never saw him again, but he thinks the son is somewhere in mindanao and
wishes him well. If assuming that the father dies and the estate is accordingly partitioned, but the eldest son later
re-appears and demands his share, then the co-heirs will simply proportionally give him his share. No bad faith or
fraud here, thus, no rescission.

INCLUSION OF A PERSON WHO IS NOT AN HEIR IN THE PARTITION
Article 1105. A partition which includes a person believed to be an heir, but who is not, shall be void only with
respect to such person. (1081a)
BALANE: This is the reverse of the preceding article. Here an outsider is mistakenly included in the partition. The
obvious remedy is to recover the property from him and have it redistributed among the proper recipients. No rescission
here, just get back the share and make a supplemental partition


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WILLS AND

P ARDON FOR SIN AND A PEACE THAT ENDURETH ,

T HINE OWN DEAR PRESENCE TO CHEER AND TO GUIDE ;

S TRENGTH FOR TODAY AND BRIGHT HOPE FOR TOMORROW ,

B LESSINGS ALL MINE , WITH TEN THOUSAND BESIDE

G REAT IS T HY FAITHFULNESS , O G OD MY F ATHER ,

A S T HOU HAST BEEN T HOU FOREVER WILT BE .

CLARENCE TIU WILLS AND SUCCESSION

CLARENCE TIU WILLS AND SUCCESSION

CLARENCE TIU WILLS AND SUCCESSION

CLARENCE TIU WILLS AND SUCCESSION

Article 712. Ownership is acquired by occupation and by intellectual creation.

They may also be acquired by means of prescription. (609a)

SUCCESSION AS A MODE OF ACQUISITION

OVERLAP OF CODAL DEFINITION WITH ART. 776

WHAT ARE TRANSMITTED?

CLARENCE TIU WILLS AND SUCCESSION

LIMITATION IN ART. 774 ON THE OBLIGATIONS TRANSMITTED TO THE HEIR

RULE REGARDING PECUNIARY OBLIGATIONS OR MONEY DEBTS

CLARENCE TIU WILLS AND SUCCESSION

TRANSMISSIBLE OBLIGATIONS OTHER THAN MONEY DEBTS

DEFINITION OF DECEDENT AND TESTATOR

SCOPE OF THE INHERITANCE

CLARENCE TIU WILLS AND SUCCESSION

BALANE: Art. 781 should be deleted as it only confuses.

WHAT DOES THE INHERITANCE INCLUDE?

WHEN THE RIGHTS OF SUCCESSION ARE VESTED

VESTED IS THE MORE APPROPRIATE TERM

TIME OF VESTING OF THE SUCCESSIONAL RIGHT

CLARENCE TIU WILLS AND SUCCESSION

CONSEQUENCES WHICH FOLLOW THE PRINCIPLE OF IMMEDIATE VESTING

CLARENCE TIU WILLS AND SUCCESSION

Article 778. Succession may be:

DEFINITION OF HEIRS, DEVISEES AND LEGATEES

CLARENCE TIU WILLS AND SUCCESSION

DISTINCTION IN ART. 782 BETWEEN HEIRS AND DEVISEES/LEGATEES

IMPORTANCE OF THE DISTINCTION IN ART. 782

CLARENCE TIU WILLS AND SUCCESSION

SUBSECTION 1: WILLS IN GENERAL

OPERATIVE WORDS IN THE DEFINITION

CLARENCE TIU WILLS AND SUCCESSION

PURELY PERSONAL CHARACTERISTIC OF MAKING A WILL

CLARENCE TIU WILLS AND SUCCESSION

RULES OF CONSTRUCTION AND INTERPRETATION OF WILLS

CLARENCE TIU WILLS AND SUCCESSION

RULES OF CONSTRUCTION AND INTERPRETATION OF WILLS

CLARENCE TIU WILLS AND SUCCESSION

CLARENCE TIU WILLS AND SUCCESSION

GOVERNING LAW AS TO THE FORMAL VALIDITY OF A WILL

CLARENCE TIU WILLS AND SUCCESSION

EXTRINSIC OR FORMAL VALIDITY INTRINSIC OR SUBSTANTIVE VALIDITY

For Filipinos and Foreigners: For Filipinos

For Filipinos and Foreigners: For Filipinos

SUBSECTION 2: TESTAMENTARY CAPACITY AND INTENT

RULES ON TESTAMENTARY CAPACITY

CLARENCE TIU WILLS AND SUCCESSION

PRESUMPTION OF SOUNDNESS OF MIND

CLARENCE TIU WILLS AND SUCCESSION

IN CASE OF SUPERVENING INCAPACITY OR CAPACITY