D.

PART 4 FROM ALLOWANCE AND DISALLOWANCE

Allowance and disallowance of wills

1. Probate is mandatory—matter of public policy to protect the interest of the heirs and other
beneficiaries, but also to protect the interest of the testator
2. Probate is imprescriptible
3. There are only three matters that can be properly inquired during probate proper:
a. Capacity
b. Identity
c. Due execution
 Exception: when it is clear that a testamentary provision is void and probate is a
waste of time.
 Nugiud vs. Nugiud—the only provision in the will is void because of preterition
 Nepomuceno vs. Nepomuceno—the will is void, but the provisions in favor of the
mistress are null and void.
 Article 739 was incorporated by reference on the law on testamentary disposition
2. Probate could be Post-mortem or during life-time
3. Once a will has been allowed; attained the finality: conclusive as to its due execution.
a. Mercado vs Santos: conclusive as to the will’s due execution necessarily includes the
authenticity of all of the signatures appearing on the will.
4. The provisions of the will cannot be the subject of compromise agreement: Rabadilla v. Court of
Appeals.
a. The will is the expression of the intention of the testator as to the manner of disposing his
property.
5. The grounds for the disallowance under article 839 are exclusive.
6. In connection to undue influence: also cause for vitiation of consent in contract; Only one case:
Revilla vs. Court of Appeals: Man is a social being—we are bound to be influence by other people,
but as long our will is not subjugated by the will of others, there is no undue influence.
a. Mere inequality in the distribution does not prove by itself undue influence since the
purpose of the will is not to distribute equally.
7. Calde vs Court of Appeals: the will was presented to probate, but all the witnesses when asked a
identical question regarding the number of pens used. The will was written with different pen
colors. The net effect was the disallowance of the will.

Institution of Heirs
 There can be a valid will even without instituting an heir. Can institute only legacy and device
 But for after acquired property, it is better have an institution heir
 Not really essential to write the complete name and surname of the heir: the writing event or
circumstance to identify an heir is sufficient.
 Disposition of unknown person or disposition incerta: the disposition is void; the property will be
merged with the mass of the estate for intestate succession;
 May leave a sum of money or specific property in favor of a class or a cause is valid.
 Rule of Equal division; but legitime should always be protected.
 The heirs collectively instituted, they are deemed individually instituted.
 If the share is specified, must follow the provisions; Apply article 846 on the Rule of equal division to
the remainder.
 If the testator in instituting the heir stated their fractional parts and the fractional parts together do
not cover the entire estate then part not dispose of by will should go to the legal of intestate heirs;
o It is different if there is an intention to give the entire estate to the instituted heirs but the
fractional parts do not cover the entire estate then make a proportional increase.
o Or proportion decrease in case in proper case
Article 854: Preterition:
 Compulsory heir in the direct line is completely omitted.
 The institution of the heir is annulled; complete annulment of the institution of heir;
 If the omission was done intentionally: Ventura vs. Ventura—Still preterition.
 If the compulsory heir is mention in the will: Still preterition if nothing is given
 Must be a compulsory in the direct line: not preterition.
 Spouse is not a compulsory heir in the direct line.
 If the omitted compulsory heir is an adopted child: Preterition
 If omitted is an illegitimate children: Preterition
 If no children but parents are alive. If parents are omitted, preterition
 The omission must be total and complete:
 If during the lifetime of the testator, something has been given—no preterition
 If the omitted heir stands to receive something in intestate succession; to get something as a legal
heir—No preterition
 If the will does not dispose of the entire estate, the part not dispose of by will must
be given to the legal or intestate heir.
 Heir is entitled to the completion of the legitime; apply article 855
 No preterition; do not annul the institution of heir
 If legacy has been given; no preterition; omission not total and complete; but entitled to the whole
legitime
o Legacy and device is inofficious if it exceed the free portion
 Effect of the predeceased of the omitted heir: the institution of the heir is effectual without
prejudice to the right of representation.
o “Without prejudice to the right of representation”—applying Article 777; determine a
person who a person compulsory heir are at the moment of death; at moment of death X
dies, A and C (child of B; don’t mention B since he’s dead); there is a preterition of C—then
intestacy; Preteristion; the institution of A as a sole heir must be annulled, the estate must
be distributed ½ and ½ between A and C under intestate succession.
 Apply 855 if the omission does not amount to preterition.
 Article 856—voluntary (dies before the testator) heir transmits nothing to his own heir

SUBSTITUTION (1:00:10)
1. Simple—one on one
2. Brief Substitution—two or more substitute for a single heir
3. Compendious—there is one substitute for two or more heirs
4. Reciprocal Substitution—reciprocally substitute of each others

IF THE CAUSE FOR SUBSTITUTION IS NOT SPECIFIED BY THE TESTATOR, IT IS UNDERSTOOD THAT SUBSTITUTION WOULD TAKE
PLACE IN CASE OF REPUDIATION, INCAPACITY, AND PREDECEASED:
 If the testator specifies the cause, then substitution will only take place upon the occurrence of the
particular cause specified by the testator.
If there are several heirs and they are at the same time designated reciprocally substitute of each other
and there is vacancy occurs—the substitute shall have the same proportional share

FIDEICOMMISSARY SUBSTITUTION:
 The substitution must not go beyond one degree from the heir originally instituted:
 Traditional view—one degree means one degree of relationship and no limited number of transfer
as long as it a one degree transfer
 Modern view—one degree means transfer; there can only be one transfer even if the transfer not
between blood relatives.
 Ramirez vs Ramirez—one degree means relationship.
 Aranaz vs. Aranaz;
 Right of a mere usufructuary: The Nature of the Right of the First heir over the property.

THE PROPERTY WILL BE HELD BY THE FIRST HEIR BASED ON THE TIME SPECIFIED BY THE TESTATOR:
 If the testator did not specify the time of transmission; the time of transmission will depend upon
the first heir, but only up to the time of his death.
o the longest period is only up to the time of the first heir’s death

If the second (fideicommissary heir) heir died ahead of the first heir: the rights of the second heir will
pertain to his decedent as long as the first and the second heir are alive when testator died.

BOTH THE FIRST AND SECOND HEIR DIRECTLY FROM THE TESTATOR:
 The second heir inherits directly from the testator, from the moment of death of the testator;
 The second heir can transmits right to his own heir

FIDEICOMMISSARY SUBSTITUTION CANNOT IMPAIR OR BURDEN LEGITIME:

 Legitime cannot be the subject of fideicommissary substitution.
 If the first heir is a compulsory heir, a fideicommissary substitution can only be established with
respect to the share of the free portion;

 End of Audio