Succession

In a Nutshell

1. Modes of transmitting ownership

a.) Law
b.) Donation
c.) Testate and intestate succession
d.) Tradition
(Art. 712, New Civil Code)

2. Terms
a.) Decedent applies to a deceased
person whose property is transmitted
through
succession, whether he left a will
or not.
b.) Testator applies to a person who left a will.
c.) Inheritance all property, rights and
obligations of a person which are not
extinguished by his death (Art. 776, NCC).

(i) The obligations of a deceased are only to the

extent of the value of the inheritance left by
him
to his heirs
(ii) In general, obligations are transmissible, unless
purely personal like obligations between
husband and wife, and those non- transferable
by
law or contract.
(iii) Examples of rights extinguished by death:
a) Personal rights like marital rights, parental
authority, support, action for legal
separation, partnership, agency.
b) Right to recognition of a legitimate or an
illegitimate child:

- Except when action has already been

d. (Art. 173, Family Code).
- Also, action is transmitted to heirs if
d dies during minority or in a state of
insanity,
rs have 5 years to file the
action. (Art. 173,
mily Code).
- Action already commenced survives,
withstanding death or either party. (id.)
- Action for adoption is not extinguished
by death of adopter. (Sec. 13, RA 8552)

c) Right to hold office or job, public or

vate.
d) Right of a lawyer to represent his client.

3. When are rights to succession

transmitted
Rights to succession are transmitted from the
moment of the death of the decedent. (Art. 777,
NCC).
a) Heirs become owners on date of decedents
death, although properties are delivered to them
later.
b) Both acceptance and repudiation retroact to
the moment of death.

4. Kinds of succession :
Succession may be:
a) testamentary (by will or codicil),
b) legal or intestate (by law),
c) mixed (partly by will and partly by
operation of law) (Art. 778, NCC)

5. What inheritance includes:

Not only transmissible rights and obligations
at the time of death, but also those which
accrued since the opening of the succession
(Art. 781, NCC)
Example:
Alluvium, but not properties acquired after the
will was made.

6. Heir, devisee, legatee

distinguished (Art. 782, NCC)
Heir called to the succession by will or by
operation of law; also one who succeeds by universal
title or to all or a fraction or aliquot part of the estate.
May be compulsory or voluntary.
> Heir is compulsory as to legitime.
> Heir is voluntary, as when a friend or a child
is given part of the estate to be taken from the
free portion.
Devisee : One given a gift of real property in a will.
Legatee : One given a gift of personal property in a
will.

7. Importance of distinction
between heir and legatee/devisee
a) There are heirs in testate (compulsory heirs) and
intestate (legal or intestate heirs) succession.
> Legatees and devisees exist only in
testamentary succession.
b) In preterition, an instituted heir gets nothing, while a
legatee or devisee gets the property given to him
as long as the legitime is not impaired. (Art 854,
NCC)

8. Dual status of heir:

a) In a will, a compulsory heir may be given more than
his legitime.
b) He is a compulsory heir with respect to the legitime.
He is a voluntary heir with respect to the excess.
c) If a compulsory heir dies ahead of the testator, his
legitime goes to his child by representation.
The child of a voluntary heir who
predeceases the testator gets nothing, because
there is
no representation among voluntary heirs
nor in the free
portion.

WILLS
1. Definition of will
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. (Art. 783, NCC).

2. Characteristics of a will:
a) Statutory
b) Unilateral (Heirs cant accept while testator is still
alive)
c) Solemn or formal
d) There must be animus testandi
e) Testator must have testamentary capacity
f) Strictly personal
g) Effective mortis causa
h) Essentially revocable or ambulatory
Meaning of strictly personal (Art. 784, NCC)
(i) Cannot be left in whole or in part to the
discretion of a third person.

(ii) Duration or efficacy of designation

of
heirs, devisees, or legatees or the
portions given
to them, cannot be left
to the discretion of a
third person.
(iii) But the testator may entrust to a
third person the distribution of specific
property or
sums of money left to a
specified class or cause
and the
designation of persons, institutions,
and
establishments to which property or
money is to be given (Art.786, NCC).
Ex.: Charitable institutions
2000 Law Class of San Sebastian College

3. Interpretation of wills:
a) If it admits of different interpretation, in case of doubt,
interpretation which will make the dispositions operative shall be
preferred (Art.788, NCC), because testacy is preferred to intestacy.
b) Ambiguities in a will:
(i) Latent or intrinsic : Does not appear on the face of the will
and is discovered only by extrinsic evidence.
Ex.: I institute my sister. (But I have two sisters)
I give my piano to Lisa. (But I have two pianos)
(ii) Patent or extrinsic : Appears on the face of the will itself.
Ex.: I institute one of my three nephews (but the nephew is not
named)
I give X one of my three cars (without stating which car).

c) How to resolve ambiguities:

(i) Latent or intrinsic : From context of the will
or extrinsic evidence, excluding the oral
declarations of the testator (Art. 789, NCC)
(ii) Patent or extrinsic : Consider the words of
the will or the circumstances under which
the will
was made, but not the oral
declarations of the
testator (id.)
Why cant the oral declarations of the testator
be considered?
> Because to do so can result in fraud, as the
words of a dead man can be distorted or perjured.

d) Words are to be interpreted in their ordinary or

grammatical sense, not in the technical sense
(Art.790,
NCC)
Examples : Natural child means child by nature.
Use and possession of
property only means usufruct, not
ownership.
e) But technical words used are to be taken in their
technical sense, unless
(i) a contrary intention appears from the
context, or

(ii) it satisfactorily appears that will was drawn

solely by the testator, and he was
unacquainted
with such technical sense.
(Art. 790, id).
Example : Ampon means de facto adoption,
not legal (judicial) adoption.
f) After-acquired properties go to intestate
heirs.
g) Rules of interpretation apply to institution of
heirs as well as of legatees and devisees.

4. Validity of wills:
a) As to form (extrinsic validity): Depends on the law in
force at the time of execution (Art. 795, NCC)
b) Intrinsic validity : Governed by the law in force at the
time of decedents death.
(i) Legislature cannot pass a law validating a
void will, like a holographic will executed
before the New
Civil Code, because the old
Civil Code did not
recognize holographic
wills.
(ii) Suppose the testator had no legitimate
ascendants, descendants, or wife. He died
in 1949. He has
a recognized spurious child,
but made a will leaving all
his properties to a
friend. His estate was settled in 1951.

Is the will valid?

(aa) The will is valid because the intrinsic
validity of a will is governed by the law at the time
of the testators death. A spurious child had no
hereditary rights under the old Civil Code.
(bb) But if the testator had died in 1951, he
spurious child would get his legitime even if born
before the New Civil Code, because succession is
determined at the time of death of the decedent.

5. Testamentary capacity: (Art. 796 and

ff., NCC)
Active Capacity to make a will.
Passive Capacity to receive property under a will.
Who can make a will:
(i) Those not expressly prohibited by law. (Art. 796, NCC)
(aa) Juridical persons cannot make wills; this is evident
from the requirement of soundness of mind.
(bb) Convicts under civil interdiction can make wills.
(cc) Spendthrifts can make wills.
(ii) Must be 18 years of age. (Art. 797, NCC)
(aa) Thus, those below 18 cannot make wills;
(bb) But sex is immaterial.

(iii) Must be of sound mind at the time of the wills execution.

Meaning, the testator knows
(aa) The nature of the estate to be distributed
(bb) The proper objects of his bounty
(cc) The character of the testamentary act.
Old age alone (senility) is not enough. Must be senile
dementia (decay of mental faculties due to old age).
Presumption is sanity (Art.800, NCC)
But there is also presumption of insanity, if one month or
less before the making of the will, the testator
was publicly known
to be insane (Art. 800, id.).
Supervening incapacity does not invalidate a will; nor
supervening capacity validate a will (Art. 801,
NCC)

6. Forms of Wills: Notarial and Holographic

a) Notarial Will
(i) Must be in writing (Art. 804, NCC)
(ii) Must be executed in a language or dialect known to the testator
(Art. 804, id.)
Witnesses do not have to know the dialect or language of the will,
but the attestation clause (not the will) must be interpreted to them
(Art. 804, id.)
(iii) Must be signed at the end by the testator or another person in his
presence and at his express direction (Art. 805, id.).
Person signing should not be one of the attesting witnesses, unless
there are more than 3 such witnesses.
(iv) Must be attested and subscribed by three or more credible
witnesses in the presence of the testator one another (Art. 805, id.)

Credible means :
- Of sound mind,
- 18 years or more,
- Not blind, deaf or dumb,
- Able to read and write,
- Domiciled in the Philippines (not necessarily a
citizen)
- Has not been convicted of falsification, perjury, or
false testimony. (Art. 820, 821, NCC)
- But witnesses do not have to know the language of
the will except that the attestation clause must be
interpreted to them. (Art 804).
- Also, a blind or an illiterate can make a will,
but
he cannot be a witness to a will.

(v) The testator or person who signed for him and

the witnesses must sign each and every page
on the left
margin of the will except the last
page.
The signatures may be on the right, top, or
bottom
of the margin of the will. (Avena v. Garcia, Phil.
145; Nayue v.
Mojal, 47 Phil. 152).
But lack of marginal signatures is fatal (Estate
of
Tampoy v. Alberastine, L-14322, Feb. 25, 1960).
(vi) All pages of the will must be correlatively
numbered in letters placed on the upper part
of each page
(Art 805, id.)
(aa) Means One, Two, Three. But can be
1, 2, 3 or A, B, C or I, II, III.
(bb) Purpose: To prevent fraud, substitution
or
to detect loss of any page. So,
substantial compliance
is enough.

(vii) Must have an attestation clause which must

state (Art 805, id.):
(aa) The number of pages where the will is
written;
(bb) That the testator signed in the presence of
the witnesses and the witnesses signed in
the
presence of the testator and of each
other.
Purposes:
(aa) To preserve in permanent form the record of facts.
(bb) To have proof of compliance.
(cc) To minimize commission of fraud or undue influence.
Failure to state number of pages in the attestation
clause is fatal. (Re Andrada, 42 Phil. 180) unless
number of pages appears elsewhere in the will
(Singson v. Florentino, L-4603, Oct. 25, 1952;

(viii) Must be notarized (Art 806):

(aa) The following are not essential: date,
place of execution, the reading of the
will to
witnesses.
(bb) Only the attestation clause is
interpreted to the witnesses if the
language is not
known to them, and
not the will itself.
(cc) The notary does not have to read the
will except if the testator is blind (Art.
808).
(dd) The notary need not be present at the
time of the execution.
(ee) Witnesses also need not appear before
the notary at the same time.
(ff) But notary cannot be a witness to the
will.

(ix) If the testator is deaf or a deaf-mute, he must

personally read the will, or he must
designate two
persons (need not be the
attesting witnesses) to read
or communicate
the will to him, but they must know
the sign
language (Art. 807).
(x) If the testator is blind, the will should be
read to him twice: one, by one of the
subscribing
witnesses, and again, by the
notary public, (Art. 808).
But: (a) A blind, deaf, and dumb man cannot
make a will because of difficulty of
communication.
(b) The notary public cannot be one of the
attesting witnesses, because he cannot
acknowledge his own act.

b) Holographic Will
Requirements:
(i) Language must be known to the testator. (Art. 804, NCC).
(ii) It must be entirely written, dated, and signed by the
testator. (Art. 810)
(iii) Insertions, cancellations, erasures, or alterations must be
authenticated by the full signature of the testator (Art.814);
otherwise, the alterations, etc. are void, but not the will itself.
(iv) If there are dispositions written below the signature, they
must be dated and signed in order to be valid (Art. 812)
(v) When there are dispositions that are signed but not dated, but
the last disposition has a signature and a date, such date
validates the dispositions preceding it (Art. 813).

Advantages of holographic wills:

(i) More intimate and personal.
(ii) Unlikely to be influenced by fraud or undue influence
(iii) No witnesses, no marginal signatures, no notarization and
acknowledgment needed.
(iv) Subject to no other form. (Art. 810)
(v) Can be made in or out of the Philippines (id.)
Probate of holographic wills:
(i) If not contested, only the testimony of one witness who knows
the handwriting and signature of the testator is needed. (Art.
811).
(ii) If the will is contested, at least three of such witnesses are
required. (id.).
(iii) In the absence of said witnesses, expert testimony may be
presented. (id.).

7. Wills executed abroad:

(i) If executed by a Filipino, it can be in any form
established in the country where he may be at the
time of
execution (Art. 815).
(ii)If executed by an alien, will may be executed in
accordance with:
(aa) Lex domicilii (Art. 816)
(bb) Lex nationalii (id.).
(cc) Philippine law (id.).
(dd) Lex loci celebrationis (place where testator
was at the time of execution) (Art. 17)

8. Joint will of Filipinos:

a) Joint will defined: A will executed by two or more
persons in the same instrument, either for their
reciprocal
benefit or for the benefit of a third person.
(Art. 818, NCC).
Example: A and B executed a will in one instrument,
making C their heir.
b) Distinguished from reciprocal or mutual wills:
Reciprocal or mutual wills provide that the survivor of the
testators will succeed to all or some of the properties of each
decedent;
Example: A made a will making B his heir. B also
made a will making A his heir.
Mutual or reciprocal wills are valid, but if made in one
instrument, they are void not because they are reciprocal, but
because they are joint.

c) Joint wills, whether reciprocal or not, are void (Art.

818).
d) Reasons why joint wills are void:
(i) To allow as much as possible secrecy, a will
being a purely personal act.
(ii) To prevent undue influence by the more
aggressive testator on each other.
(iii) In case of death of the testators at different
times, probate would be harder.
(iv) It militates against the right of a testator to
revoke his will at any time, like revocation
by tearing
or burning.
(v) In case the testators are husband and wife,
one may be tempted to kill the other.

e) Void even if executed by a Filipino in a foreign

country where such will is allowed. (Art. 819)
f) How about joint wills executed by foreigners?
(i) If executed abroad and valid in the country
of
execution, valid also here (lex loci
celebrationis)
(ii) If executed in the Philippines, void
because it is against our public policy.

9. Devise, legacy, etc., to attesting

witnesses (Art. 823, NCC).
a) The devise or legacy is void, but the will is valid.
b) If given to the spouse, parent, or child of an attesting
witness, the legacy or devise is also void (but the attesting
witness can still act as such, if there are three other competent
witnesses to the will) (Art. 823, id. )
c) But if the witness or his spouse, parent, or child is a
compulsory heir, he will not lose his legitime.
d) Can a compulsory heir be an attesting witness? Yes,
but
any property given to him out of the free portion is void.
e) Can the notary who acknowledges the will be a witness?
No, because he cannot acknowledge something before
himself.

10. Codicil (or a small will):

a) Meaning (Art. 825, NCC)
(i) A supplement or addition to a will.
(ii) Made after the execution of a will and annexed to it
to be taken as part thereof.
(iii) Explains, alters, or adds to the original will.
b) How executed:
(i) With the same formalities as a will (Art. 826)
(ii) May be notarial or holographic.
c) How revoked:
(i) A notarial will may be revoked by a notarial or
holographic codicil; a holographic will may be
revoked by a
holographic or notarial codicil;
(ii) A valid will can never be revoked by an invalid
codicil, whether expressly or impliedly.

11. Incorporation by reference:

Means a will validly executed incorporates only by reference
(without copying the whole thing) certain documents or papers,
especially inventories and books of account, to save time and energy.
Requisites (Art. 827):
a) The document or paper referred to must be in existence at the time of
the execution of the will.
- Therefore, future papers cannot be incorporated by reference.
b) The will must clearly describe and identify the document or paper,
especially the number of pages thereof.
c) The document or paper referred to must be identified by clear and
satisfactory proof (by parol evidence or evidence aliunde).
d) The testator and the witnesses must sign each and every page of the
paper or document, except voluminous books of account or
inventories, but number of pages must be stated.

REVOCATION OF WILLS
1.

When is revocation valid; law

applicable (Art.829, NCC):
a) If done outside the Philippines
(ii) If by one not domiciled here:
(aa) Apply the law at the place where the will was made;
or
(bb) Follow the law at the place where the testator was
domiciled at the time the will was made; or
(cc) Follow Philippine law.

(iii) If done by one domiciled in the Philippines:

(aa) Follow Philippine law (since his
domicile is here); or
(bb) Follow the general rule of the lex loci
celebrationis of the revocation (Art.
17)
b) If done in the Philippines
Follow Philippine law whether the
testator is
domiciled in the Philippines or not; i.e., lex loci
celebrationis of the revocation.

1.

Ways of revocation (Art. 830,

NCC):
a) By implication or operation of law, total or
partial.
b) By an overt act (burning, tearing, cancelling,
or obliterating).
c) By a revoking will or codicil, totally or
partially, expressly or impliedly.

2. Different ways of revocation explained

a) By implication or operation of law:
When after the execution of a will, certain acts or events take
place rendering void the will totally or partially (presupposing a change
of mind on the part of the testator), like
(i)
When the testator sells or donates the thing given as legacy or devise
(Art. 957, NCC).
(ii)
In cases of legal separation, annulment of marriage, and declaration of
nullity of marriage, with respect to the property given to the guilty
spouse (Arts. 43, 50, Family Code).
(iii) When an heir, legatee or devisee commits an act of unworthiness under
Art. 1032, NCC.
(iv) When a credit given as a legacy is judicially demanded by the testator
(Art. 936, NCC).
(v)
When one or some of the compulsory heirs are preterited or omitted in
the will, the institution of heirs is void, but the legacies and devisees
remain valid as long as the legitime is not impaired (Art. 854, id.)

b) By an overt act (burning, tearing, cancelling or

obliterating, or crumpling) (Art. 830, par. (3), (NCC):
(i) May be done by the testator or another upon his express
direction.
(ii) The subjective phase of the act must be completed (if, for
example, even a small part of the will is burned).
(iii) There must be capacity to make a will at the time of
revocation.
(iv) If the testator threw his will into a stove with the intent of
revoking it so that it would be burned once someone lights
the stove, but somebody removed the will from the stove
before it was lighted, there is no revocation because there
was never the overt act of burning.

(v) If a will is burned accidentally, there is no revocation

in
view of the lack of intention to revoke.
(vi) Tearing of the will, even if slight or only into two
pieces, is enough revocation as long as the subjective phase
is passed.
(vii) Obliteration is rendering the words illegible; cancelling is
the drawing of lines across the text, but the words remain
legible.
(viii) Cancellation of the signature is sufficient revocation, but
cancellation or obliteration of non-vital parts leaves the
other parts of the will in force.
(ix) If a will is mutilated by error or accident, there being no
animo revocandi, there is no revocation.
(x) If what was burned was only the envelope containing
the will, there is no revocation.

c) By the execution of another will or by a codicil (Art.

832 and ff, NCC):
(i) Revoking will or codicil must be valid as to form; otherwise,
revocation is void.
(ii) Revocation by subsequent will or codicil takes effect even if
the new will becomes inoperative because of the incapacity
or renunciation of the heirs, legatees, or devisees (Art. 832,
NCC).
(iii) Implied revocation by subsequent will (Art. 831):
If the subsequent will does not revoke the first will in
an express manner, only those dispositions in the first will
that are inconsistent or contrary to the second will are
annulled.
Reasons: (1) The law does not favor implied revocation.
(2) Efforts to reconcile must be made.

(iv) Revocation based on a false or illegal cause is

void (Art 833)
Example of a false cause: T instituted A as heir. Then
he learned that A was already dead, so he made
another will instituting B. If A turns out to be still
alive, he and not B inherits from T, because the
revocation of the will in his favor was based on a
false cause.
(v) Note the difference between an invalid second
will and an ineffective second will. If the second
will is void, it cannot revoke. If it is only inoperative
by reason of the incapacity or renunciation of the
heir, legatee, or devisee, revocation takes place.

(vi) Doctrine of conditional revocation or dependent

relative revocation;
This refers to a revocation that is conditional; i.e.,
revocation takes place only if the condition is
fulfilled.
Example: T makes Will No. (1). After one week, he
executes Will No. (2). Then he tore Will No. (1) to
pieces. Upon his death, it was discovered that his Will
No. (2) had not been validly executed.
- Is Will No. (1) revoked, or should it be given
effect?
In one case, it was held that Will No. (1) was revoked
because the tearing was accompanied by animo
revocandi (Diag v. De Leon, 43 Phil. 413).

Later, it was ruled that there was no revocation either

by subsequent will or by overt act of tearing because the
tearing was prompted by the false belief that the second
will was validly executed (see Art. 833, NCC, which states
that revocation of a will based on a false or illegal cause is
null and void). Or, under the doctrine of dependent
relative revocation, the revocation by destruction or overt
act is good only if the condition is fulfilled, namely, that
the revoking will is valid. Here, the condition was not
fulfilled; therefore, the revocation by overt act did not
materialize. (De Molo v. Molo, et al, L-2538, Sept. 21,
1951).

(vii) The second will referred to by the testator as his last will
revokes his first will, especially if the provisions of the two
wills are inconsistent, like as to who are being instituted as
heirs.

4. Remember that the testator can revoke his will

at anytime before his death.
5. Recognition of an illegitimate child in a will does
not lose its effect even if the will is revoked (Art.
834, NCC).

REPUBLICATION AND REVIVAL

OF WILLS
1.

Definition of Terms:
Republication is the act of the testator of
reestablishing a will which is void as to form
(like there were only two attesting witnesses or
there was no attestation clause) or which had
been revoked (Art. 835, NCC).
Revival is the restoration of validity to a
previously revoked will by operation of law.

2. Modes of Republication:
a) Re-execution of the original will (copying
the original provisions thereof);
b) Execution of a codicil referring to a
previous will (also known as implied
republication) (Art. 836, NCC)

3. Requisites and limitations of

republication:
a) If a will is void as to form (like if there
were only two attesting witnesses or there
was no attestation clause), the new will
must reproduce or copy all the provisions
of the first will.

(i) But the effect of the will is the date of

execution of the new will, not of the old will.
(ii) If I gave all my cars to A in my first will
which turned out to be void as to form, and I
copied all its provisions in a second will, and
I had only 3 cars when I executed the first
will and 8 cars when I executed the second
will, my heir A will get 8 cars, not 3 cars.

b) If a will is void to form, it cannot

be republished by mere reference
in a codicil. There must be a new
will or codicil reproducing all the
provisions of the first void will.

- But if the first will was valid but had later been
revoked, a codicil merely referring to the revoked will
revives said void will. There is no need to reproduce
the provisions of the revoked will. The will is
however, effective as of the date of the codicil.
c) If a will is void due to fraud or undue influence,
the execution of a codicil referring to the previous
void will is sufficient republication.
There is no
need to reproduce its provisions. (Art. 836, NCC).

4. Rules on Revival (Art. 837,

NCC):
a) If the second will expressly revoked the
first will, revocation of the second will
does not revive the first will.
b) If the second will only impliedly revoked
the first will (like having inconsistent
provisions), revocation of the second will
revives the first will.
c)

If the second will revoking the first will is

invalid, the first will is still effective
because the revocation is void.

5. Another case of Revival:

While the preterition of a compulsory
heir annuls the institution of heirs, still, if
the omitted heir dies ahead of the testator,
the institution of heirs is revived, without
prejudice to the right of representation
(Art. 854, sec. par., NCC).

PROBATE OF WILLS
1.

Study Rules 73 to 90 of the 1997 Rules of

Civil Procedure on Settlement of Estate of Deceased
Persons.

2.

Meaning of probate: The act of proving before a

competent court the due execution of a will by a person
with testamentary capacity, and the approval of the will
by said court.

3.

Necessity of probate: No will shall pass real or

personal property unless proved and allowed in
accordance with the Rules of Court (Art. 838, NCC).

4. Probate of a will is conclusive as to:

a) due execution of the will
b) testamentary capacity of the testator
5. Two kinds of probate:
a)
During the testators lifetime (ante mortem
probate)
Reasons:
(i)To prevent or minimize fraud, intimidation,
or undue influence in the execution of
wills.

(ii) To enable the testator to correct at once

any failure to comply with the legal
requirements.
(Report of the Code of Commission, pp. 53-54)
Note:
But the testator can still revoke his will
although already probated during his
lifetime.
b) After the testators death.

6. Grounds for disallowance of wills (Art. 839,

NCC)
a) Formalities required by law were not complied with.
b) Testator had no testamentary capacity at the time of
execution of the will.
c) Will was executed through force, duress, or influence of
fear or threats.
d) Will was procured by undue and improper pressure and
influence on the part of the beneficiary or some other
person.
e) Signature of the testator on the will was procured by
fraud.
f) Testator acted by mistake or did not intend that the
instrument he signed should be his will when he signed it.

Remember:
a) The grounds for disallowance of wills in Art. 839 are
exclusive; no other grounds can serve to disallow a will
(Pecson v. Coronel, 45 Phil. 216).
b) While the presence of force, duress, fear or threat in the
execution of a contract renders it merely voidable (i.e.,
capable of ratification), their presence in a will renders the
will void.
c) There is undue influence when the testator does something
because of fear or desire for peace or from any other
feeling that he is unable to resist (Torres v. Lopez, 48 Phil.
772). But he who alleges undue influence must prove it
(Macapinlac v. Alimurong, 16 Phil. 41).

d) There is no undue influence if the testator gives the

whole free portion to an illegitimate child or a mistress.
Mere affection, although illegitimate, is not undue
influence, as long as the giving was voluntary (Coso v.
Fernandez Dez, 42 Phil. 596).
- However, a mistress is incapacitated to inherit,
on the ground of public morality and public
policy (Art. 1028 in relation to Art. 739, NCC).
e) Fraud and undue influence are mutually repugnant and
exclude each other, as that their joinder as grounds for
opposing probate shows the absence of definite evidence
against the validity of the will (Icasiano v. Icasiano, L18979, June 30, 1964).

INSTITUTION OF HEIR
1.

Meaning of Institution of Heirs:

It 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. (Art. 840, NCC)

2. Requisites for a valid institution of

heirs:
a) Refers only to voluntary heirs; cannot affect the legitime.
b) Applicable also to devisees and legatees.
c) Exists only in testamentary succession.
d) Even a conceived child can be instituted, subject to Arts. 40
and 41 of NCC.
e) Heirs, legatees, and devisees must be certain or ascertainable.
f) There must be no preterition, except that devises and
legacies are valid as long as the legitime is not impaired.
g) The institution must be effective; that is, there is no
predecease, repudiation, or incapacity of heirs. (Art. 841)
h) The will must be extrinsically and intrinsically valid.
i) If the institution is partial, the remainder of the estate goes to
the intestate heirs (Art. 841).

3. Other rules to remember:

a) An heir must be designated by his name and surname,
and when two persons have the same name, the will must
indicate circumstances to identify the heir (Art. 843, NCC)
b) Even if the name of the heir is omitted, if there is no doubt
as to his identity, the institution is valid. (Art. 843).
Ex: My only brother (the testator has only one brother).
c) Error in name, surname, or circumstances of the heir shall
not vitiate the institution if he can be ascertained in any
other manner (but not by the oral declaration of the testator)
(Art. 844).
d) If several persons have the same name and surname and
similar circumstances, and even with the presentation of
other proof, the heir cannot be identified, none shall be an
heir. (Art. 844).

e) Institution of an unknown person is void. (Art. 845).

Examples: I institute my friend. (But have many
friends).
I institute my student in the 4th year
of
the SSC College of Law. (I
have many such
students).
f) Special kinds of institution:
(i) The poor in general (Apply Art. 1030, NCC)
(ii) The relatives of the testator (meaning those
nearest in degree) (Art. 959).
(iii) X and his children (Art. 849) they are
instituted simultaneously.
(iv) My brothers and sisters equally, even if
some are full and some half-blood (Art. 848).

g) Heirs instituted without designation of shares inherit in equal

parts (Art. 848). But this does not apply to the legitime.
h) T instituted his son A and his friends X and Y to his P1M
estate. Divide.
First, give A his legitime of P500,000.00.
Then, divide the other P500,000.00 among A, X
and Y equally.
i) T instituted A and B and the three children of C to his estate
of P100,000.00. How should the estate be divided?
Divide the estate into five (5) equal parts.
j) T instituted his two brothers and three half-sisters. Divide.
(i) They get equal shares (Art. 848)
(ii) Remember, though, that in intestate succession,
full-blood gets double share of the half-blood.

k) T instituted A and the latters 2 children to his estate of

P100,000.00. Divide.
Divide the estate into three (3) equal parts or shares; i.e., the
heirs inherit simultaneously, not successively. (Art. 849).
l) A statement of a false cause in the institution of heir is
considered not written unless it appears from the will that the
testator would not have made the institution had he known of
the falsity of the cause (Art. 850).
I institute my student X for getting 100% in Civil Law in the
last bar examinations
The institution is valid, even if the student did not get 100% in
Civil Law. What is disregarded is the false cause, not the
institution.
m) I institute my friend F to of my P1M estate. Who gets
the other ?
The intestate heirs (Art. 851)

n) A voluntary heir who dies before the testator or who

proves to be incapacitated transmits nothing to his heirs (Art.
856).
(i) There is no representation among
voluntary heirs.
(ii) There is also no representation in
legacies and devises.
o) T has children A and B. A has a child A-1. If T institutes
his children A and B to his P1M estate, but A dies ahead of T,
who gets his estate?.
> A-1 gets As legitime of P250,000 by
representation. The remainder of the estate goes to
B as
compulsory and voluntary heir.
p) Remember that a person who renounces cannot be
represented (Art. 977)

PRETERITION
1.

Art. 854, NCC: The preterition or omission of

one, some, or all of the compulsory heirs in the
direct line, whether living at the time of execution
of the will or born after the death of testator, shall
annul the institution of heir; but the devises and
legacies shall be valid in so far 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.

2. Nature of Preterition:
a) Total omission of one, some, or all of the compulsory heirs
in the direct line.
b) Omission may be intentional or unintentional
c) Compulsory heirs must be in the direct line (ascendants
and descendants)
d) Compulsory heirs may be living or conceived at the time
of the institution
e) The institution of heir shall be annulled or voided, but
legacies and devises remain if not inofficious.
f) If the omitted heir predeceases the testator, the
institution is effectual, without prejudice to the right of
representation.
g) Illegitimate ascendants or descendants are included.

h) If a compulsory heir is given a very small share, complete

only his legitime. There is no preterition.
i) If a child has been given a donation inter vivos, there is no
preterition because the donation is an advance on his legitime.
So he is entitled only to the completion of his legitime.
j) The omission of the surviving spouse in the will is not
preterition because she is not a compulsory heir in the direct
line. So, give her the legitime given to her by law.
k) If brothers or sisters are omitted, there is no preterition
because they are not compulsory heirs and not in the direct line.
l) T has three sons A, B, and C. He makes a will instituting
A and B and his friend F. Who gets his estate?
Ans. : F gets nothing since he is a voluntary heir, not a
legatee or devisee. The institution is annulled a legatee or
devisee, the gift is valid if not inofficious. If inofficious, it is
reducible.

SUBSTITUTION OF HEIRS
1. Meaning of substitution of heir:
It is the appointment of another heir in default of or after
the heir originally instituted (Art. 857, NCC).
2. Purposes of substitution of heirs:
a) To prevent the property from falling into the hands of
people not desired by the testator.
b) To prevent inestate succession.
c) To allow the testator greater freedom to reward those
more worthy of his affection and bounty
than his
intestate heirs.
Note: There may also be substitution of
legatees and
devisees.

3. Kinds of substitution : (Art. 858, NCC)

a) Simple, vulgar or common (Art 859)(Without stating the
reasons for substitution).
> One or more persons substitute the instituted heirs in case
of predecease, repudiation, or incapacity.
Ex: T instituted A as his heir, but provided in his will that in
case A cannot for any reason receive the inheritance, he shall
be substituted by B.
Or, simply, T designates B as his heir and C as Bs substitute.
b) Brief (Art. 860):
Ex: T institutes A as his heir, with B and C as substitutes (Art.
860).
c) Compendious (Art. 860):
Ex: A and B are instituted, with C as substitute.

d) Fideicommissary substitution (Art. 863) See

discussion below and next pages
e) Reciprocal (Art. 861):
Ex: A and B are instituted, with the provision that if A
predeceases, renounces, or turns out to be incapacitated, B
substitutes him, and vice versa.
Even if the original shares given to A and B are not
equal, like A was given 2/3 and B 1/3 of the testators
estate, since the institution is reciprocal, if either A or B
predeceases, renounces, or is incapacitated, the other gets
the original share of the one originally instituted.
f) Remember that the cause for the substitution need not be
stated, in which case the substitution applies in
predecease, renunciation, or incapacity.

4. Fideicommissary substitution (Art. 863,

NCC).
T institutes A as first heir or fiduciary, but he must
preserve and transmit the estate to second heir B called
fideicommissary or beneficiary, with the following conditions:
a) The substitution does not apply to the legitime (Art. 864)
b) The fideicommissary substitution must be express; i.e.,
the obligation to preserve and transmit the property to the
second heir is clearly imposed.
c) The second heir should not go beyond one degree or one
transfer from the first heir. (Art. 863)
d) Both heirs inherit from the testator.
e) Both heirs must be living or at least conceived at the time
of the testators death.

f) The second heir acquires his right from the time of the
testators death. If he dies before the first heir or
fiduciary dies, his (the second heirs) right passes to his
heirs. (Art. 866)
g) The first heir enjoys the property almost like a
usufructuary (Art.866).
So: (i) He cannot alienate the property
(ii) He is entitled to refund of useful
improvements, legitimate expenses,
and
credits (Art. 865).
h) One degree means one generation or one transfer (so,
the second heir can be a juridical person).

i) Since the substitute must be one degree from

the first heir, he must be a parent or child of
the first heir. He cannot be a brother, because
brother is two degrees from the first heir.
j) The nullity of the fideicommissary
substitution does not prejudice the validity of
the institution of the first heir. The
fideicommissary clause is simply deemed not
written. (Art. 868).

Remember also:
a) Suppose the fiduciary dies ahead of the testator, the
second
heir gets the property not as a
fideicommissary but as a simple substitute, to give
effect to the testators will.
But if the second heir or fideicommissary dies
ahead of the testator, there is no fideicommissary
substitution because both heirs must be living at the
time of the testators death, since both inherit from
the testator.
However, if after the testators death, the
fideicommissary dies ahead of the fiduciary, the right
of fideicommissary (or second heir) passes to his heirs
(Art. 866).

b) If the fiduciary registers the property in his

name
without
the
fideicommissary
substitution, innocent parties are protected.
However, if the property is unregistered, the
buyer acquires only the sellers right; i.e.,
subject to the fideicommissary substitution.

c) The fideicommissary is a sort of naked owner;

ownership is consolidated in him upon transmission of
the property to him.
d) The second heir can be, as stated above, a juridical
person, provided there is only one transfer.
e) The second heir, being an heir also of the testator, must
be capacitated to succeed the testator, not the first heir
or fiduciary.
f) T instituted A as first heir and B as fideicommissary or
second heir. A predeceases T. Will B inherit when T
dies?
Yes, not as a fideicommissary but as an
ordinary substitute heir.

g) T instituted A as first heir and B, As brother, as

fideicommissary or second heir. T died and his property
passed on to A. Upon As death, will B get the property?
No. The fideicommissary substitution is not
valid because B is second degree from A.
Property
will go to As heirs, testate or
intestate.
h) T instituted A as first heir; As son A-1 as second heir; and
A-1s mother is third heir. Is this a valid fideicommissary
substitution?
As far as A and A-1 are concerned, yes. But as to
A1s mother, no because she is not one degree
from A; in
fact, she may not even be related to A by
blood. But she
may still get the property from A-1
by testate or intestate
succession.

DISPOSITIONS WITH
CONDITIONS OR TERMS
1. Applies to the free portion; never to the
legitime.
2. Kinds of institution:
a) With a condition : B is instituted provided
he passes the 2004 bar exams
b) With a term : B is instituted beginning
2003.
c) For a certain purpose or cause (Modal
institution): A is given P30,000 to be
spent for the interment of the testator.

3. With Condition:
a) Impossible or illegal conditions and those against good
customs are deemed not imposed and do not prejudice the heir,
even if the testator should provide otherwise (Art. 873). That is
only the condition is void.
b) An absolute condition not to marry is void for being against
good morality and public policy. Hence, the disposition is
deemed not subject to a condition and is valid. (Art. 874)
c) Absolute condition not to remarry is also void as against
morality and public policy, except:
(i) When imposed on the widow and widower by a deceased
spouse. If the condition is violated, the widow or widower gets
only his/her legitime. Free portion goes to the intestate heirs of
the deceased.(id.)
(ii) When imposed on the widow/widower by
the ascendants or
descendants of the deceased spouse. (id.)

d) Examples:
(i) T instituted friend F provided he will never marry. F
married after Ts death.
F is still entitled to inherit from T because the condition is
immoral.
(ii) H instituted his wife as sole heir (there are no other
compulsory heirs) on condition that when she becomes a
widow, she would not remarry. Two years after Hs death, the
widow remarried.
The condition is valid as to the free portion. But the wife
still gets her legitime.
(iii) A instituted his friend B provided he does not marry C.
The condition is valid because it is not an absolute
prohibition.

e) Disposition captatoria : A disposition on condition that

the heir shall make in his will a provision in favor of the
testator or any other person.
The disposition itself is void, not just the condition.
So the heir gets nothing because the institution is a
nullity.
f) Potestative condition (Art. 876): The fulfillment depends
solely on the heir and must be performed by him personally.
(i) Must be fulfilled as soon as the heir
learns of the testators death.
(ii) When condition has already been
complied with and cannot be complied
with again,
condition is deemed fulfilled
(Art. 876).
(iii) Substantial or constructive compliance is
enough (that is, the heir tried his best).`

g) Casual or mixed condition (Art. 877):

Casual depends upon chance or the will of a third person.
Mixed depends partly on the will of the heir and partly upon
chance or the will of a third person.
Examples:That A becomes a lawyer.
That C wins first prize in the lotto.
That A wins the Miss Universe beauty contest.
Rules:
(i) Condition may be fulfilled before or after the death of the
testator.
(ii) If already complied with and testator was not aware of the
compliance, already deemed fulfilled.
(iii) If already complied with and testator was aware of the
compliance, deemed fulfilled if cannot be complied with again.
Ex: That B becomes a lawyer.
(iv) Again, substantial or constructive compliance is sufficient.

h) Negative potestative condition:

(i) A institutes B provided he stops smoking
(ii) B gets the property upon giving security,
and will have to return the property in case
of
contravention of condition, with fruits
and
interests. (Art. 879)
i) Positive potestative condition:
(i) A institutes B provided the latter learns how
to play the piano.
(ii) Upon As death, the property is placed
under administration until the condition is
fulfilled (Art. 880).

4. With Term
a) Distinguished from condition
A term is sure to happen. It merely suspends the
demandability of a right.
Ex. I give this property to X upon his
mothers death. (The mother will
surely die.)
A condition not only suspends the demandability,
but even the acquisition of the right itself. It may or
may not happen.
Ex. I give this property to X if his mother
dies of cancer.

b) In a disposition with a term, the heir acquires the right

pending arrival of the term, and transmits the right to his
heirs even before the arrival of the term (Art. 878, NCC).
This is because a term is sure to happen.
But if the instituted heir under a suspensive
condition dies before the condition is fulfilled, he
transmits nothing to his heirs because he never
inherited
from the testator.
c) Kinds of terms:
(i) Suspensive: Beginning 2003
(ii) Resolutory : Effects cease on December 1, 2003
(iii) Ex die in diem : From a certain day to a
certain day, like from year 2002 to 2010.

d) Rules to follow:
(i) T institutes his brother A for 5 years after Ts death.
- A enters possession at once, which will end after 5 years.
(ii) T institutes his brother A 5 years from his (Ts) death.
- This is a suspensive term. The legal heirs enter into
possession
of the property in the meantime before arrival of term after giving
security (Art. 885). A gets
the property only after 5 years from
testators death.
(iii) T institutes B subject to a suspensive condition: If T dies, the
property shall be placed under administration until the condition is
fulfilled (Art. 880).
- In suspensive term, the legal heirs enter into the
possession of
the property before term arrives, subject to giving security (Art
885).
- If the legal heirs do not give security, place the property under
administration (Art. 880).

(iv) A institutes B upon the death of C.

(aa) Legal heirs possess property until
the term arrives after giving security.
If security
is not given, place the
property under
administration.
(bb) Instituted heir who dies before
the arrival of the term transmits his
rights to his
own heirs. This is
because the term is sure to
come.

5. Modal Institution
May be a statement of the object of the institution, or the
application of the property for a certain purpose, or a charge
imposed on the heir or legatee/devisee.
a) Examples:
(i) I institute A to my estate for his legal education.
(ii) I institute A as my heir provided he devotes 50% of the
income of the property
to the establishment of a professional
chair in Civil Law at the San Sebastian College of Law.
b) Rules to follow:
(i) The inheritance can be immediately demanded provided the
heir gives security for compliance with the wishes of testator.
(Art. 882).

(ii) Heir must return property with

fruits
and interests if obligation is
disregarded (Art.882)
(i) Distinguished from suspensive
condition in that if suspensive
condition is
not yet fulfilled,
property is not demandable
even if
security is offered. In modal
institution, property is immediately
demandable provided heir gives
security for
compliance with wishes
of testator.

LEGITIME
1. Definition of legitime:
That part of the testators estate which he cannot dispose of
because the law has reserved it for his compulsory heirs
(Art.886, NCC).

2. Who are compulsory heirs?

a) Primary compulsory heirs
(i) Legitimate children and their legitimate descendants
(ii) Surviving spouse
(iii) Illegitimate children and their descendants, whether
legitimate or illegitimate.

b) Secondary compulsory heirs

(i) Legitimate parents and other legitimate
ascendants (they inherit only in default of
children and their descendants).
(ii) Illegitimate parents (other illegitimate
ascendants not included). They inherit only
default of legitimate and illegitimate
their respective descendants.

legitimate

in
children and

3. Remember:
a) Purpose of legitime is to protect the surviving spouse and
the children from the unjustified anger or thoughtlessness
of the testator.
b) If there are no compulsory heirs, there can be no legitime.
c) The testator cannot deprive the compulsory heirs of their
legitime except through valid disinheritance.
d) The testator cannot impose any conditions, substitutions,
or burdens on the legitime except the condition that the
estate will not be divided for a period not exceeding 20 years
(Art. 1083)
e) Donations intervivos are to be reduced if found inofficious
(i.e., if they exceed the free portion)
f) Compulsory heirs are not compelled to accept their
legitime.

4. Legitimes of compulsory heirs

a) Legitimate children of estate divided by number of
children
b) One legitimate child still
c) One legitimate child and surviving spouse
Child ; Surviving spouse
d) Two or more legitimate children and surviving
spouse Legitimate children ; Surviving
spouse same share as one legitimate child
e) Two or more legitimate children, surviving
spouse, illegitimate children Legitimate
children
; Surviving Spouse same share
as one legitimate child
(to be taken from the
free portion); Illegitimate
children Each gets
of share of one legitimate child
(Also to be
taken from the free portion).

f) Legitimate parents and surviving spouse ,

g) Surviving spouse and illegitimate children
Surviving spouse -1/3 ; Illegitimate children 1/3
h) Legitimate parents, surviving spouse,
illegitimate children- Legitimate parents
(even if
there is only one parent) ; Surviving
Spouse 1/8 ;
Illegitimate children
i) Legitimate parents only
j) Illegitimate children only
k) Surviving spouse only , but if marriage was
in articulo mortis and testator died within 3 months
from marriage, 1/3; if parties, however had lived
together
for more than 5years before their marriage,
.

l) Legitimate parents and illegitimate children

Legitimate parents ; Illegitimate children
m) Illegitimate parents only
n) Illegitimate parents and surviving spouse
Illegitimate parents ; Surviving Spouse
o) Illegitimate children only
p) Illegitimate parents and illegitimate
children Parents none ; Illegitimate children

1/2

Remember also:
a) Legitimate children always get of the estate as legitime.
And this is true even if there is only one child.
b) Legitimate parents as secondary compulsory heirs also
always get of the estate as their legitime, and this is true
even if there is only one legitimate parent.
c) There is no representation in the ascending line.
d) The legitime of the surviving spouse must be paid first out
of the free portion; then give the illegitimate children their
legitime. Therefore, if there are many illegitimate children,
each of them might not get of the share of a legitimate child.
e) There is also representation of illegitimate children
f) Illegitimate children do not inherit abintestato from
legitime children and relatives of their illegitime father and
mother because of the barrier, and vice versa . (Art. 992)

g) Brothers and sisters are not compulsory heirs, but they are
intestate heirs. So, a testator can give his entire estate to strangers
in his will, excluding his brothers and sisters.
h) To determine the legitime, get the value of the property, minus
debts, plus the value of donations subject to collation (Art. 908)
i) Donations to children shall be charged to their legitime;
donations to strangers shall be charged to the free portion; if
they are inofficious, they shall be reduced (Art. 909)
j) The legitime of legitimate parents shall be divided between
them equally. If one parent is dead, the other gets the whole
legitime.
k) If the testator has no legitimate parents but is survived by
ascendants of equal degree, the legitime shall be divided
equally between paternal and maternal lines. If the ascendants
are of different degrees, the ones nearest in degree get the
entire legitime (Art. 889).

5. Reserva Troncal
Art. 891. The ascendant who inherits from his
descendant any property which the latter may have acquired
by gratuitous title from another ascendant, or a brother or
sister, is obliged to reserve such property as he may have
acquired by operation of law for the benefit of
relatives
who are within the third degree and who belong to the line
from which said property came. (NCC).

Example:
MOTHER
(origin)

FATHER (Reservoir
or reservista)
(Transmission by operation of
law, i.e., by legitime or by
intestate succession)

(Transmission by
gratuitous title)

CHILD
(Propositus)

Explanation:
a) Mother gave land to child by donation or in her will; i.e., by
gratuitous title.
b) Child died with no descendant and no will, so father inherited
land intestate. Or child gave land to father as the latters
legitimate in a will.
c) Father owns land only until he dies. Land is reserved by law in
favor of the relatives of the mother within the 3 rd degree from
the child, who are the reservees or reservatarios.
d) The reservees or reservatarios within the 3 rd degree from the
child are any of the following:
(i) Maternal half-brothers and half-sisters (second degree)
(ii) Maternal half-nephews and half-nieces (third degree)
(iii) Maternal grandparents (second degree)
(iv) Maternal great grandparents (third degree)
(v) Maternal aunts and uncles (third degree)

MGGP

Reservatarios
or Reservees
(Relatives of
the propositus
within the 3rd
degree in the
maternal line.)

3
MGP
2
3

MA

MU

Mother (Origin)

MHS
3
MHN

2
MHB
3
MHN

Child
(Propositus)

e) Among the reservees, those in the direct line are

preferred as against the collateral line. Thus, a
grandparent is preferred to a half-brother or sister.
Also, the nearer excludes the farther.
f) Maternal half-nephews and half-nieces are preferred
to maternal aunts and uncles because they are also
intestate heirs of the propositus,
while aunts and
uncles are not.
g) Children of first cousins are not reservees, because
they are already the 6th degree from the propositus.

Other rules to remember:

a) Between the brother of the father and brother of the mother, the
property goes to the latter by reserva troncal.
b) Suppose the mother dies intestate, leaving a car to her child. Later, the
child dies intestate with no wife and no children. The father inherits the
car by intestate succession. This car is reservable.
c) The propositus is the owner of the above car while alive, so he can
defeat the reserva by selling the car.
d) There is no reserva troncal if the child gives the property to his father
in a will out of the free portion, because that is not by operation of law.
e) The reservista is a full owner of the property subject to a resolutory
condition; i.e., upon his death, the property goes to the reservees
f) The property cannot be used to pay the debts of the reservistas estate
because it is not part of his estate after his death.
g) The reservista must inventory the property and must furnish a bond,
mortgage or any other security to secure the delivery of the property or
its value to the reservees.

h) The reservista is liable for all deterioration imputable to his fault or

negligence.
i) Land may be registered as subject to reserva troncal, and if there is
such annotation in the title, security is not necessary.
j) If the property is personal, the reservista may sell, donate, or pledge
the property, but his estate must reimburse the reservees the value of
the property.
k) If the property is land, the reservista must annotate the reserva
troncal within 90 days from the time he accepts the inheritance (when
there is no case filed in court) or within 90 days from the time it is
awarded to him by the court (Arts. 199 and 191, Spanish Mortgage
Law). The reservees can judicially demand the annotation.
l) The reservees inherit the property from the propositus, not from the
reservista. They are conditional heirs of the propositus.
m) There is representation in reserva troncal , but the representative
must also be within the 3rd degree from the propositus (like nephews
and nieces)

n) Proceeds of insurance given to the beneficiary are not subject to

reserva troncal because this is not a donation
o) If the mother gives a sweepstakes ticket to her son and the ticket
wins later, the prize is inherited by the father, there is no reserva
troncal because the prize came from the PCSO, not from the
mother.
p) Prescription extinguishes the reserva troncal (30 years for real
property, 8 years for personal property)
q) If the property subject to reserva troncal is expropriated , the
reserva continues on the indemnity.
r) If the property is insured and later destroyed, the reserva
continues on the insurance proceeds.
s) The purpose of the reserva troncal is to keep the property in the
family to which it belongs (Velayo Bernardo v. Siojo, 58 Phil. 89)
t) Reserve troncal exists only in the legitimate family; no reserva
exists in favor of illegitimate relatives.

u) Reserva maxima and reserva minima:

Explanation: A son received from his mother P20,000
under her will. He also had properties of his own worth
P40,000. When the son died without a spouse and without
children, he left all his estate (worth P60,000) to his father in
his will. How much us the reservable property?
The legitime of the father in his sons estate is P30,000 (
of P60,000). Under the principle of reserva maxima, since the
P20,000 legitime of P30,000, received by the son from his
mother can be included or contained in his legitime of
P30,000, said P20,000 is reservable. But under the principle
of reserva minima, only of P20,000 is reservable, on the
theory that only of the P20,000 received by the son from
his mother went to the father by operation of law.

The reserva maxima is more in consonance with the original

objective of reserva troncal, because it subjects to the reservation the
largest amount possible.
But the reserva minima is more just and more equitable, more in
line with the philosophy of the law of socialization of property, and
favored by Manresa and Scaevola.
v) How is the reserva extinguished?
(i) Death of the reservor or reservista
(ii) Death of all the would-be reservees ahead of the reservor
(iii) Accidental loss of the reservable property
(iv) Prescription (runs from the death of the reservor) 30
years for real property, 8 years for personal property.

DISINHERITANCE
1. Meaning of disinheritance:
Art. 915. A compulsory heir may, in
consequence of disinheritance, be deprived of his
legitime, for causes expressly stated by law. (NCC)

2. Purpose or object of disinheritance:

a) To maintain good order and discipline within the
family (Castan).
b) To punish the ungrateful, the culpable, the cruel,
the unworthy heir, the unfaithful spouse.

3. Requisites of a valid disinheritance:

a) Disinherited heir must be clearly identified.
b)
Must be for a cause provided for by law (Art.915).
c) Must be express, stating the cause in the will. (Art. 916).
d)
Cause must be legal, true, and existing (Art. 916).
e) Must be unconditional.
f) Cant be partial; must be total or complete. If partial,
disinheritance is not valid, and the heir gets his or her
legitime.

4. Remember also:
a) Can be made only in a will. There is no disinheritance in
legal succession.
b) Includes not only the legitime, but also the free portion.
c) If will is revoked, disinheritance becomes ineffective.
d) Only compulsory heirs can be disinherited, so brothers
and sisters cannot be the subject of disinheritance.
e) Reconciliation renders disinheritance ineffective.
f) In preterition, the whole institution of heirs is annulled. In
invalid disinheritance, the disinherited heir still gets his
legitime.
g) Heirs of the disinherited heir represent the latter in the
legitime, but the disinherited heir shall not have the usufruct
of the property constituting the legitime. (Art. 923)

5. Problems:
a) T has 5 children. He made a will with only one provision,
i.e., disinheriting one of his children for living a disgraceful
life. If T dies with an estate of P100,000, how would his
estate be divided?
The disinherited child is not entitled to his legitime and also a
share in the estate as an intestate heir, since intestacy is only
the presumed will of the deceased. Divide the estate among
the other four children equally or P25,000 each.
b) Suppose in Problem (a), T also instituted is 4 other
children as heirs in his will. Divide the P100,000 estate.
Since the disinherited heir loses not only his legitime but any
share in the free portion, again divide the P100,000 estate
equally among the 4 instituted children.

c) T has 3 daughters. He made a will disinheriting one of

them for living a disgraceful life, and gave his entire estate of
P300,000 to his two other daughters. Divide the estate.
The disinheritance is valid, so just divide the entire
estate equally between the two daughters who were
instituted as heirs.
d) Suppose in Problem (c), the ground for
disinheritance
is that the daughter married a man that the father does not
like. Divide the estate.
The disinheritance is not valid because the cause is
not valid. So the disinherited daughter gets her
legitime of P50,000 (1/3 of P150,000). Then divide
the
free daughters, which they get as instituted
heirs in
addition to their legitime of P50,00 each.

e) Ts will reads: I disinherit my son A if he makes an

attempt against my life. Is the disinheritance valid
No, because it is conditional. And this is true even
if A actually makes an attempt against his fathers
life after the execution of the will. But if A is
convicted, he will not also inherit from T, not
because
of the attempted disinheritance, but
because he is
incapacitated under Art. 1032 (2).
f) T disinherited his child C in his will, providing that C
would only get of his rightful share in Ts estate. Is the
disinheritance valid?
No, because it is partial. So C still gets his legitime.

6. Grounds for disinheritance

Of children, leg. or
illegitimate (Art. 919)

Of parents, leg. or
illegitimate (Art. 920)

Of spouse (Art. 921)

1. Conviction of
1.
attempt against life of
testator, his spouse,
descendant or ascendant

-Same-

1.

-Same-

2. Has accused testator

of a crime punishable
by 6 yrs. Or more if
found to be groundless

2.

-Same-

2.

-Same-

3. Conviction of
3.
adultery or concubinage
with testators spouse

-Same-

3. When he/she has

given around for legal
separation (even if no
case is filed).

4. Refusal to support testator

w/o justifiable cause

4. Refusal to support children 4. Unjustified refusal to

and descendants w/o
support children or other
justifiable cause
spouse

5. Maltreatment of testator by
word or deed (conviction not
necessary)

5. Attempt against life of

other parent, unless there is
reconciliation

5. When spouse has given

ground for loss of parental
authority

6. Leading dishonorable or
disgraceful life

6. Loss of parental authority

for causes specified by law

6. Same as No. 7 in case of

parents

7. Conviction of crime
punishable by civil
interdiction

7. Caused testator to make a

will or to change one through
fraud, intimidation, or undue
influence
8. Abandonment of children
and descendants and inducing
daughters to live corrupt or
immoral lives or attempted
against their virtue.
Note: Maltreatment of
child by parent is not ground
for disinheriting parent
because it is part of parental
discipline

7. Reconciliation between testator and disinherited heir:

a) Subsequent reconciliation deprives the testator of the right
to disinherit, and any disinheritance already made
becomes ineffectual.
b) Reconciliation needs no special form. It can be express
or implied.
c) If ground for disinheritance is also a ground for
unworthiness, like abandonment of children or an attempt
against the life of the testator, the heir cannot also inherit.
But reconciliation extinguishes
unworthiness as an incapacity, because
incapacity is
only the presumed will of the
testator.

8. Ineffective disinheritance:
a) No cause for disinheritance is stated
b) The cause is false
c) The cause is not legal
d) Subsequent reconciliation between testator
and disinherited heir results in ineffective
disinheritance

9. How disinheritance is revoked:

a) By subsequent reconciliation between
testator and disinherited heir,
b) By the making of a new will making the
disinherited heir an instituted heir.

LEGACIES AND DEVISEES

1. Legacy and devise distinguished
a) A legacy is gift of personal property given in a will.
A devise is a gift of real property given in a will.
b) A legacy is bequeathed; while a devise is
devised.

2. Who has the duty to give the legacies and

devises in a will.
a) If no one is charged with this duty in the will, the estate
must give them, as represented by the executor or
administrator with a will annexed.
b) Testator may impose the duty on the compulsory heirs as
long as their legitimes are not impaired; i.e.,
legacies/devises cannot be beyond the free portion (Art. 925).
Ex: I institute my child C as heir, but he
must give P10,000 to X.
c) A legatee or devisee can also be charged with the duty of
giving a sub-legacy or sub-devise but only to the extent of
the value of the legacy or devise given him (Art. 925).
Ex: I give my NISSAN car to X, but he must
give Y P500.

3. Indeterminate Legacy (Art. 928)

a)
b)
c)
for

Example is a legacy of an indeterminate or generic car.

Heir bound to deliver is liable for eviction
If legacy is a specific, determinate car, heir is not liable
eviction

4. Legacy or devise of a thing belonging to

another. (Art. 930)
a) Void, if the testator erroneously believed that he was the
owner of the thing when in reality, he is not the owner.
b) But if the thing subsequently becomes his, the disposition
is valid.
c) If the testator orders the heir, legatee, or devisee to acquire
the property from another, the latter must do so; If the owner
refuses to sell or demands an excessive price, he is obliged only
to give the just value of the thing (Art. 931).

5. Legacy or devise of thing already belonging

to the legatee or devisee (Art.932):
a) If the thing already belongs to the legatee or devisee at the time
of the execution of the will, the legacy or devise is ineffective.
b) If the thing is subject to an encumbrance or interest of another
person, the legacy or devise is valid only as to the interest or
encumbrance.
c) If thing bequeathed belonged to the legatee or devisee, legacy
or devise is without effect even if legatee or devisee subsequently
alienates the thing (Art. 933)
d) If after alienating the thing, the legatee or devisee
subsequently reacquires it gratuitously, the legacy or
devise is
still void.
But if he reacquires it by onerous title, he is entitled to
reimbursement of what he had paid (Art. 933)

6. Legacy of a thing pledged or mortgaged to

secure a debt (Art. 934):
a) If pledged or mortgaged before the execution of the
will, the estate must pay the debt.
b) If pledged or mortgaged after the execution
of
the will, still the estate must pay the debt
c) Other charges like easements, usufructs,
leases which are real rights, pass to the legatee or
devisee.

7. Legacy of credit, or remission or release of a

debt (Art. 935):
a) Effective only as regards the credit or debt existing at
time of the testators death.
b) The legacy comprises all interests due to the testator
time of his death.
c) Legacy lapses if the testator later brings action against
debtor.
d) If generic, comprises all credits/debts existing at the
of execution of the will (Art. 937).

the
at the
the
time

8. Legacy to the debtor of thing pledged by him

(Art. 936)
a) Only the pledge is extinguished; the debt remains.
b) Can also be applied to mortgage, antichresis, or any other
security.

9. Legacy or devise to a creditor (Art. 938):

a) Shall not be applied to his credit, or to what the
testator owes him, unless the testator so declares
b) In the latter case, the creditor can still collect the
excess, if any, of the credit or of the legacy or devise
10. If the testator orders the payment of a debt (Art. 939):
a) If he does not really owe the alleged debt, the
disposition is void.
b) If the order is to pay more than the debt, the excess is
not due
c) This is without prejudice to the payment of natural
obligations, like a prescribed debt

11. Alternative legacies and devises (Art. 940):

a) The choice is with heir, or the executor or
administrator
b) If the heir, legatee, or devisee who is bound to give
the gift dies, the right passes to the heirs
c) The choice, once made, is irrevocable
d) Apply rules on obligations in general

12. Legacy of generic personal property or

indeterminate real property (Art. 941):
a) Legacy of generic personal property is valid
even
if there are no things of the same kind in the estate
b) But devise of indeterminate real property is
valid
only if there are immovable property of the same kind in the
estate
c) The right to choose the legacy belongs to the
executor or administrator who shall deliver a thing which is
neither of inferior or superior quality
d) If the choice is given to the heir, legatee, or
devisee, he may choose whatever he prefers
(need not be
of medium quality) (Art. 942)
e) If the heir, legatee, or devisee cannot make the
choice, the right passes to his heirs (Art. 943)

13. Legacy of education (Art. 944):

a) Lasts until the legatee is of age, or beyond the age of
majority in order that he may finish some professional,
vocational, or general course, provided he pursues his course
diligently.
b) If the testator did not fix the amount, it is fixed in
accordance with the social standing and circumstances of the
legatee and the value of the estate.

14. Legacy of support (Art. 944):

a) It lasts during the lifetime of the legatee
b) If the testator used to give the legatee a sum of money for
support, give same amount, unless it is markedly disproportionate
to the estate
c) If the testator did not fix the amount, consider the social
standing and circumstances of the legatee and the
value of the
estate.

15. When does the legatee or devisee acquire

ownership of the gift? (Art. 947):
a) If the legacy or devise is pure and simple, from the
death of the testator, and he transmits it to his heirs (Art.
947)
b) If gift is specific or determinate, also upon the death
of the testator, and gift includes growing fruits, unborn
offsprings and uncollected income, but not income due before
the testators death (Art. 948).
c) If the gift is specific or determinate, the risk of loss or
deterioration is on the legatee or devisee, as well as any
increase or improvement
d) If the gift is generic, fruits and interests from the time
of death of the testator pertain to the legatee or devisee if
the testator expressly ordered the same (Art. 949),

16. Order of preference if the estate is not

sufficient to cover all legacies and devises
(Art.950) :
a) Remuneratory.
(i) Those which testator gives because of his moral obligation to
compensate certain persons for services which do not constitute
recoverable debts, like legacy to one who saved the life of
the
testator.
(ii) Entitled to preference because they are moral
obligations of
the testator.
(iii) Remuneratory nature can be proven by extrinsic evidence
b) Those declared by the testator as preferential
c) For support
d) For education
e) Legacy or devise of specific, determinate thing in the estate
f) Others, pro rata

17. How legacy or devise is delivered (Art. 951):

a) With all accessions and accessories and in
the
condition it was at the time of the
testators
death
b) Deliver the very thing given (if specific
or
determinate), not its value
c) Legacies of money must be paid in cash
d) Expenses of delivery are for the account
of the
heir or estate, but without
affecting the heirs
legitime.

18. Acceptance of legacy or devise:

a) Gift cannot be accepted in part if it is onerous. (Art. 954)
b) Heirs of legatee or devisee can accept the gift if the
legatee or
devisee dies after the death of the testator, not
before (id.)
c) Legacy or devise not accepted shall be merged into the mass
of the
estate, except in substitution or accretion (Art. 956)
d) If a compulsory heir is also a legatee or devisee, he can
accept or
waive his inheritance or the gift, or waive his
inheritance or the gift, or
waive both (Art. 955).

19.When does legacy or devise become of no effect (Art.

957):
a) If the testator transforms the thing such that it does not retain its
original
form or denomination
b) If the testator alienates the thing by any title or for any cause.
Reacquisition of the thing by the testator does not make the
legacy or
devise valid, unless it is effected by right of repurchase
c) If the thing is totally lost during the lifetime or after the death of
the
testator

20. Mistake as to name of thing given (Art. 958):

a) Of no consequence, if thing can be identified
b) Ex: I give X my only car, a NISSAN 93. This is
effective even if the car is a NISSAN 92

21. Disposition in favor of testators relatives

(Art. 959):
a) Limited to 5th degree relatives of the testator
b) Nearer excludes the farther
c) No preference as to lines. Grandson and sister are
both
relatives within second degree. What is
important is
nearness of degree
d) Does not apply to relatives of the wife

LEGAL SUCCESSION
1. Legal succession defined:
That kind of succession prescribed by law (and presumed
by it to be the desire of the deceased) which takes place
when the expressed will of the decedent has not been set
down in a will.

2. Basis of legal succession:

Because unexpected death may come to any person, the
law presumes what would have been his last wishes had he
executed a will while still alive, taking into consideration
his love and affection for those closest to him

3. When does legal succession take place? (Art.

960, NCC):
a) When a person dies without a will or a void will, or a
will
that has lost its validity (like a revoked will);
b) When the will does not institute an heir or does not
dispose
of all the properties of the testator (partial
intestacy);
c) If a suspensive condition attached to the institution of heir
in a
will does not happen;
d) If the heir predeceases the testator, or is
incapacitated
to inherit, or repudiates the inheritance, and
there is no
substitution or accretion;
e) When the heir is incapable of succeeding
f) Upon the expiration of a resolutory term attached to the
institution of heir,
g) Upon fulfillment a resolutory condition attached to the
institution of heir, rendering the will ineffective.

Ex: A has brother B, his only relative.

A makes a will giving a certain house to C
provided he passes the 2002 bar examinations;
and
giving a certain car to D, with E as Ds
substitute in
case of predecease.
D dies in 1997. A dies in 1998. C flunks the
2002 bar exams.
- Who gets the house and the car?
Ans. The house goes to the brother B as
intestate heir;
The car goes to E as the substitute of D.

4. Rules to remember in legal or

intestate succession:
a) An intestate heir is not necessarily a compulsory heir (like a
brother or sister)
b) Relatives nearer or nearest in degree exclude the more distant
ones, saving the right of representation when proper (Art. 962)
c) Relatives in the same degree inherit in equal shares, subject to
the rule on full or half-blood brothers and sisters (Art. 1006), and
the division between the paternal and maternal lines (Art. 987)
d) Intestate shares are either equal or more than the legitime (like
the case of the surviving spouse)
e) There is no representation in the ascending line (Art. 972)
f) There is representation in the descending line, whether full or
half-blood descendants. (Art. 972)
g) There is also representation in the illegitimate line (Art. 989)

h) In the collateral line, there is representation only in favor

of children of brothers and sisters, whether full or half-blood
(Art. 972).
(i) Grandchildren of brothers and sisters cannot
represent.
(ii) Children of first cousins cannot represent;
but first cousins represent because they
are the
children of brothers and sisters
(iii) Representation in the collateral line is true
only in legal succession, because
collaterals
are not compulsory heirs, and
a voluntary heir
cannot be represented.

i) In partial intestacy, legacies and devisees are

charged to the free portion proportionately against the
heirs who are given more than their legitimes, but in no
case shall the legitimes be impaired.
j) Grandchildren always inherit by representation
whether they concur with the children or not. They
inherit in their own right only when all the children
renounce, and they share equally or per capita. (Art.
982).

k) Nephews and nieces inherit either by representation

or in their own right. (Art. 1005).
(i) They inherit by right of representation when they
concur with aunts and uncles, who divide per
capita,
while nephews/nieces divide per
stirpes. (Calisterio
v. Calisterio, GR 136467,
April 6, 2000)
(ii) They inherit in their own right when they do not
concur with aunts and uncles; in this case,
they divide
per capita or equally (Art. 975).
l) Illegitimate children do not inherit abintestato from the
legitimate children and relatives of his illegitimate father
or mother; nor do said legitimate children and relatives
inherit from the illegitimate child(Art. 992)

m) There is also reserva troncal in legal

succession, because legal succession is by
operation of law
n) A renouncer can represent but cannot be
represented (Arts. 976-977).

5. Other rules to remember:

a) If a man dies survived by a brother and a cousin, the
brother excludes the cousin.
b) If the deceased has two brothers, they get equal shares
(Art. 1004)
c) If a man is survived by a grandfather and a brother (both
2 degrees), the grandfather inherits alone because the
direct line is preferred to the collateral line.
d) Half-sister excludes nephews and nieces.

e) An aunt is excluded by nephews and nieces although

both are 4th degrees relations, because nephews and nieces
are 4th in the order of legal succession, while an aunt is
only 5th.
f) In giving the shares of illegitimate children, the shares
of the legitimate children should not be impaired (1/2 of
the estate). If there are many illegitimate children, give
what corresponds to the legitime of the legitimate
children first (1/2 of the estate), then divide the rest among
the illegitimate children.
g) If there are relatives of the same degree and some
repudiate or are incapacitated, their shares accrue to the
others of the same degree, save the right of
representation (Art. 968)

Example:

Parents
(Both dead)

A-1

B-1

A, B, C, and D are brothers. If their parents both died, leaving an

estate of P100,000, and A repudiates his share while B turns out to
be incapacitated, the share of A accrues to C and D, because there
is no representation in repudiation, while the share of B goes to
his child B-1 by representation. So B-1 gets P25,000, while C and
D gets P37,500 each, because the share of A accrued to them.

h) If in the above example, all the brothers and sisters

repudiate, the next in line (nephews and nieces) get the
estate in their own right per capita, not by
representation because again, there is no
representation in repudiation.
So, if A, B, C, and D all repudiate, the
P100,000 estate of their parents will go to A-1
and
B-1, which they will divide per capita ,
or
P50,000 each.
i) If nephews and nieces alone survive, they inherit in
equal shares (Art. 975).

6. The Sharing in Intestate Succession:

a) Legitimate children alone All
b) Legitimate children Surviving spouse SS gets the
same share as one legitimate child. If there is only one child,
they divide , .
c) Legitimate children and illegitimate children Proportion
of 10-5, provided the legitimes of the legitimate children are
not impaired. So, if there are only 2 legitimate children and
10 illegitimate children, since the legitime of the 2 legitimate
children is of the estate, they get of the estate, while the
illegitimate children will just have to divide the other half
equally among themselves.
Thus, if the parents estate is P100,000 the two legitimate
children get P50,000 or P25,000 each, while the ten
illegitimate children will divide the other P50,000 equally
among themselves or only P5,000 each.

d) Legitimate children illegitimate children s

urviving spouse:
Legitimate children and illegitimate children
Proportion of 10-5.
Surviving Spouse Same share as one legitimate child,
to be taken from the other half of the estate so that the
share of the legitimate children of of the estate will
not be impaired.
So, if there are many illegitimate children, they will
again have to share what remains of the other half of
the estate after giving the share of the surviving
spouse, so that it can well happen that each illegitimate
child cannot get of the share of a legitimate child.

e) One legitimate child surviving spouse illegitimate

children:
One legitimate child
Surviving spouse
Illegitimate children
f) Illegitimate children alone All
g) Illegitimate children and surviving spouse ,
h) Surviving spouse alone All
i) Legitimate parents alone All
j) Legitimate parents, surviving spouse, illegitimate
children , ,
Remember that when there are legitimate children,
ascendants are excluded.

k) Legitimate parents and illegitimate children ,

l) Legitimate parents and surviving spouse ,
m) Surviving spouse and illegitimate parents ,
n) Illegitimate parents alone All
o) Surviving spouse, brothers and sisters ,
p) Brothers and sisters, nephews and nieces All
q) Other collaterals All
(i) Nearer excludes the farther
(ii) Does not extend beyond 5th degree
(iii) A half-sister excludes all other relatives

7. Intestate succession in adoption:

a) In the intestate succession of the adopter, the
adopter(s) and the adoptee shall have reciprocal rights of
succession without distinction from legitimate filiation
(Art. 18, Rep. Act 8552)
b) In the intestate succession of the adopted child:
(i) Again apply Art. 18, Rep. Act. 8552.
(ii) If the adopter dies ahead of the adopted child, the
parents and relatives by consanguinity of the adopted
child are his legal heirs. (Art.984, NCC)
(iii) If only the parents by nature of the adopted child
survive, they get all.

c) In the intestate succession of the parents by

nature and other blood relatives of the adopted child,
the adopted child remains an intestate heir (Art. 189,
par. (3), Family Code).
d) If the adopter predeceases the adopted child, the
latter cannot represent the former in the
inheritance
from the legitimate relatives of the adopter, because
the filiation created by fiction of law is exclusively
between the adopter and the adopted.

REPRESENTATION
1. Representation defined:
It is a right created by fiction of law, by
virtue of which the representative is raised to the
place and degree of the person represented, and
acquires the rights which the latter would have if
he were living or if he could have inherited.
(Art. 970, NCC)

2. When does representation exist:

a) In testate succcession :
(i) Exists in predecease, incapacity, and
disinheritance
(ii) Covers only the legitime, which goes to the
representative by operation of law.
(iii) There is no right to represent a voluntary
heir.
b) In intestate succession:
(i) Exists also in predecease and incapacity
(ii) Covers all that the person represented could
have inherited.

3. Rules to remember:
a) An adopted child cannot represent. Neither may an
adopted child be represented.
b) The representative succeeds not the person represented but
the one whom the person represented would have succeeded
(Art. 971)
(i) Since the representative does not succeed the person
represented, he is not liable for the debts of the latter.
(ii) Because the property inherited by the representative
does not come from the person represented, if under the will
of the latter, the representative is given less than the other
representatives, the representative still gets an equal share in
the property of the person whom the person represented would
have succeeded.

Ex: T has 2 children A and B. A has two

children A-1 and A-2.
If A dies giving 2/3 of his estate to A-1 and 1/3
to A-2, if later, T dies, A-1 and A-2 will
get equal shares in As inheritance from
T or as
As representatives.
c) The right of representation takes place only in the
direct descending line: never in the ascending line (Art.
972)
d) In the collateral line representation takes place only
in favor of children of brothers and sisters, whether
full or half-blood (Art. 972, sec par.). Hence,
grandnephews and grandnieces do not represent.

e) The representative must himself be capable of

succeeding the decedent (Art. 973).
Ex: A has a child B who has a child B-1. If B disinherits
B-1 in his will, B-1 can still represent B in the succession of
A; because B-1 succeeds A, not B.
f) The representative must at least be conceived at the time
succession opens
g) When there is representation, the heirs inherit
per
stirpes , not per capita. (Art. 974)
That is, all those in a group inherit in equal shares,
because per stirpes means
inheritance by group.

h) A person may represent him whose inheritance he has

renounced (Art. 976)
i) A renouncer may represent him whose inheritance he has
renounced. (Art. 976,977)
j) Illegitimate children of legitimate children cannot represent
because of the barrier, but illegitimate children of illegitimates
can represent.
k) When nephews and nieces survive with uncles or aunts, they
inherit by representation. If they alone survive, they inherit
in
equal portions or per capita(Art. 975)
(i) A died intestate leaving an estate worth P24,000. He
is
survived by his wife W, his brother B, and nephews C-1 and C2, sons of his deceased brother C. Divide As estate.
W gets or P12,000
B gets P6,000 (1/2 of the other P12,000)
C-1 and C-2 get P3,000 each (They divide per stirpes the
remaining P6,000)

(ii) Suppose in the above problem, B is also dead,

survived by his son B-1. How should As estate be
divided?
W gets or P12,000.00.
Nephews B-1 and C-1, and C-2
divide
the other P12,000 per capita
because they alone
survive, their
parents being already dead and
they
have no surviving uncles or aunts.

ACCRETION
1. Meaning of accretion:
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. (Art.
1015, NCC)

2. Reason for accretion:

Based on the presumed will of the deceased that he prefers to give
certain properties to certain individuals, rather than to his legal heirs.
Thus, accretion is preferred to intestacy.

3. Requisites of accretion:
a) Unity of object (the same inheritance, legacy, or devise)
b) Plurality of subjects (two or more persons are called to the same
property pro indiviso)
c) Vacant portion: Due to
(i) Repudiation
(ii) Pre-decease
(iii) Incapacity
(iv) If a suspensive condition is not fulfilled
(v) If a particular heir cannot be identified

4. Is there accretion in legal succession?

- Yes. Art. 1018 provides that in legal succession, the share
of the person who repudiates the inheritance always accrues
to his co-heirs.
- Art. 1018 applies to incapacity, without prejudice to
representation (Manresa)
- Art. 1018 does not speak of predecease, because here,
there is no vacant portion; that is, the predeceased heir never
had a chance to inherit.

5. Accretion among compulsory heirs takes place only

when they are instituted to the free portion. If it is the legitime
that is repudiated, other compulsory heirs take the share of the
repudiating heir in their own right, not by accretion
(Art.1021)

6. Accretion also takes place among devisees,

legatees and usufructuaries under the same
condition established for heirs. (Art. 1023)

7. Examples:
a) A gives a particular car to X and Y in his will.
If X repudiates, entire car goes to Y
If X predeceases A, the car also goes to Y
b) T gives the first floor of a house to X, and the second floor
to Y. Accretion would not apply here, because the shares
of X and Y have been earmarked.
c) A gives of his money in the PNB to X and to Y.
Accretion takes place even if the shares are not equal.

d) T left to his nephews A, B and C all his money at

PNB at the time of his death. When T died, he
had
P30,000 at PNB. A, however, died before T, leaving a
child A-1. Who gets the P30,000?
- B and C get As share by accretion
- A-1 does not inherit because there is no
representation among voluntary heirs.
e) T instituted his only cousin and the latters daughter as
his only heirs. If the cousin turns out to be
incapacitated, who gets his share, his daughter or Ts
intestate heirs?
- The daughter, by accretion.

f) A and B, brothers of T, are the latters only surviving

relatives. T dies.
(i) If A repudiates, B gets As share by accretion
(ii) Suppose A has a child, his child cannot
represent him because one who
renounces
cannot be represented
(iii) If A is incapacitated instead of having
repudiated his share, will his share accrue
to B?
- No, because As child gets As share by representation.
In the collateral line, in intestacy, children of brothers or
sisters represent.
- If this is testacy, As child cannot represent because
there is no representation among voluntary heirs, so As share
will accrue to B.

8. Other cases:
a) T institutes in his will his two legitimate children X and Y,
and friend F, to his estate of P60,000. T dies. Divide his estate.
X gets P15,000 (his legitime) plus P10,000 of the free portion.
- Y gets the same share as X
- F gets P10,000
b) T has two legitimate children A and B. In his will, he left
his estate worth P100,000 to his two children A and B, each,
and to his friend F, who has a child F-1.
- If F predeceases T, his child F-1 cannot represent him
because he is a voluntary heir. So his share goes to A and B as
intestate heirs (Art. 1022).
- If B predeceases T, his share goes to A in the latters own
right, not by accretion. So A gets his own legitime of P25,000
and Bs legitime of P25,000. F gets P50,000

c) T gave P10,000 deposited at PNB to friend F, and

P10,000 deposited at PBC to friend F-1. No substitute
was appointed. S, sister of T, was not given anything. If
F repudiates, who gets his share?
- There is no accretion here because the shares are
earmarked. So S, sister, gets Fs share as sole intestate
heir.

CAPACITY TO SUCCEED BY WILL OR BY

INTESTACY
1. Applies to both testate and intestate succession
2. Capacity to succeed is also called passive
testamentary capacity:
3. Kinds of incapacity:
a) Absolute cannot inherit from anybody
b) Relative
(i) Because of possible undue influence (Art. 1027)
(ii) Because of public policy and morality (Art.1028
in
relation to Art. 739)
(iii) Because of unworthiness (Art. 1032)

4. Absolute incapacity:
a) Individuals, corporations, associations not
permitted by law or their charter to inherit (Art. 1026,
1027 (6)).
But all other corporations or entities (the State,
provinces, municipal corporations, private
corporations, organizations, or associations for
religious, scientific, cultural, educational, or
charitable purposes) may inherit under a will (Art.
1026, first par.).
b) A child not yet conceived, or abortive infants (Art.
1025)

5. Incapacity to succeed because of possible

undue influence (Art. 1027):
This incapacity does not include the legitime or intestacy ,
because heirs inherit by law.
a) Priest who heard last confession or gave spiritual aid during
last illness of decedent (Art. 1027, (1)).
(i) Reason: To safeguard the heirs from the sinister and
undue influence which may be exercised by a priest or
minister over a dying man
(ii) Undue influence is conclusively presumed, but can be
cured by evidence that there was no undue influence
(iii ) If the priest is a compulsory or intestate heir of the
deceased, his legitime or intestate share is not included in the
incapacity.

b) Relatives of the priest in (a) within the 4th degree

of
consanguinity, or the church or organization to which
such priest belongs (Art. 1027 (2)).
c) Guardian with respect to testamentary dispositions of
ward before approval of guardians final accounts
(Art. 1027, (3)).
(i) Except when guardian is an ascendant,
descendant, brother, sister or spouse
of the
ward, in which case
disposition is valid.
(ii) Relatives of the guardian are not
included in the incapacity

d) Attesting witness to decedents will or the spouse, parents or children of

such witness, or anyone claiming under such witness, spouse, parents or
children (Art. 1027 (4)).
(i) Brother, sister, and grandchildren and other descendants are not
included
(ii) If there are more than three attesting witnesses, incapacity does not
apply.
(iii) The notary public who acknowledged the testators will is not
disqualified.
e) Physician, surgeon, nurse, health officer or druggist who took care of
testator during his last illness (Art. 1027 (5)).
(i) Relatives of the physician, etc. are not included
(ii) The care of the testator must be continuing or regular, not an isolated
service.
(iii) Physician, etc. is not disqualified to inherit by intestacy because the
law says testator, and intestacy because the law says testator, and
intestacy takes place by operation of law.
f) Individuals, associations and corporations not permitted by law to
inherit (Art. 1027 (6)).

6. Incapacity by reason of public policy or

morality (Art. 1028):
This is the same as void donations in Art. 739 , NCC.
a) Made between persons who were guilty of adultery or
concubinage:
(i) Criminal conviction not necessary; guilt can be proved
civilly.
(ii) Legacy or devise to a concubine of the testator in the
latters will is void.
b) Made between persons found guilty of the same criminal
offense, in consideration thereof.
Ex: A and B committed murder and were duly convicted. In
As will, he gave B a legacy for cooperating with him in the
murder. The murder is void.

c) Made to a public officer or his wife, descendants, and

ascendants, by reason of his office
(i) Example is a disposition in the will of an
employee in favor of his superior so that he (the
employee) can get a promotion.
(ii) But if the disposition is made by a superior
in
favor of an employee, the
disqualifications does
not apply, unless morality is involved, like if the
employee is the mistress of the superior officer.

7. Special dispositions:
a) For prayers and pious works for the benefit of the soul of the
testator, made in general terms (Art. 1029):
(i) Application of disposition must not be specified;
i.e.,
general
(ii) Executor must deliver to the church to which the
testator
belongs, and one-half to the State
(iii) Action of executor must be with court approval.
b) Disposition in favor of the poor in general (Art. 1030)
(i) Limited to the poor in the domicile of the testator at
the
time of his death
(ii) The following determines the distribution:
(aa) Person appointed by the testator
(bb) If no one is appointed by the testator, the executor determines;

(cc) If there is no executor, the municipal judge, mayor, and

municipal treasurer, who shall decide by a majority of votes,
subject to the approval by the RTC judge
(iii) The above rules also apply even when the testator
specifies the poor of a definite locality.
c) Provision in favor of a disqualified person even in the
guise of an onerous contract or made through an intermediary
(Art. 1031)
(i) Void
(ii) Refers to absolute incapacity or incapacity by reason of
possible undue influence or immorality
(iii) Unworthiness is not included, since there can be
condonation in unworthiness. Legacy in favor of a person
disqualified by unworthiness is implied
condonation.

8. Incapacity by reason of unworthiness (Art.

1032):
a) Parents who have abandoned their children or induced them to lead
immoral lives or attempted against their virtue (Art. 1032 (1));
(i) Applies to daughters and sons, and even grandchildren
(ii) Attempt against their virtue does not need criminal conviction
b) Any person convicted of an attempt against the life of the testator, his
spouse, descendant, or ascendant (Art. 1032 (2));
(i) Since conviction is necessary, if testator dies before
conviction,
await final judgment
(ii) An acquittal on reasonable doubt removes the incapacity.
(iii) Heir not be convicted before testators death. If conviction comes
after testators death, effect is retroactive.
(iv) Pardon by the President does not erase the incapacity
(v) If heir dies before final judgment, his heirs can still inherit
because
he ahs not been convicted, as long as testator dies ahead of him.

c) Any person who has accused the testator of a crime

punishable by six years of imprisonment or more if accusation
has been found groundless (Art. 1032, (3)):
(i) Acquittal must be definite
(ii) If acquittal is based on reasonable doubt, there
is some ground for the accusation; hence,
incapacity does not arise.
d) Failure to report violent death of testator within one month
(Art. 1032 (4)):
(i) Of doubtful application now, since under present
law, no one is really bound to make an
accusation except the authorities
concerned.
(ii) Heir or legatee or devisee should be at least 21.

e) Conviction of adultery or concubinage with spouse of

testator (Art. 1032 (5)):
(i) Conviction by final judgment is
necessary
(ii) The guilty spouse is not included in this
incapacity, but he or she cannot also
inherit if there was already a decree
of legal
separation between testator
and spouse (Art.
63 (4), Family Code).

f) Any person who causes testator to make a will or to

change one by fraud, violence, intimidation, or undue
influence (Art. 1032 (6));
g) Any person who by the same means mentioned in (f)
prevents testator from making a will or from revoking one
already made, or who supplants, conceals, or alters the
latters will (Art. 1032 (7));
h) Any person who falsifies or forges a supposed will of
the deceased (Art. 1032, (8)).

9. Condonation
a) Cause of unworthiness is without effect if there is
condonation (Art. 1033):
(i) Implied condonation: If, having knowledge of
the
act of unworthiness, the testator gave the
person
concerned an inheritance, legacy, or
devise
(ii) Express condonation: If, not knowing of the act
of unworthiness at the time of the execution of the will, but
having known of the same subsequently, the testator
condones it in writing, public or private.
b) If implied condonation is made in a void will or revoked
will, the incapacity remains.

10. When is capacity or incapacity to be judged (Art. 1034):

a) Consider the same at the time of the death of the testator
b) In the second, third and fifth paragraphs of Art. 1032,
wait for final judgment.
c) If the institution is conditional, consider the time of
compliance or fulfillment of the condition.
(i) Condition here is suspensive, not resolutory.
(ii) If heir, legatee, or devisee disposition
becomes inoperative
d) Capacity to succeed is governed by the law of the
nation of the decedent, whether succession is testate or
intestate (Arts. 1039; 16, sec. par., NCC)

11. Prescriptive period for declaration of incapacity and

recovery of property (Art. 1040):
a) Within 5 years from the time incapacitated person took
possession of property
b) Anyone who has an interest in the succession (person who
inherits in place of the incapacitated heir) may bring the
action.
12. Representation in case of incapacity (Art. 1035):
a) Representation of the incapacitated person by his children
or descendants is only in the legitime because there is no right
of representation with respect to the free portion
b) But the incapacitated heir is excluded from the usufruct
and administration of the property in question

13. Effects of acts of incapacitated heir, legatee, or

devisee with respect to hereditary property:
a) Alienations and acts of administration before the judicial order of
exclusion are valid as to third persons who acted in good faith (Art.
1036)
b) Co-heirs have, however, the right to recover damages from the
incapacitated heir (id.).
c) Incapacitated heir may demand indemnity for expenses for
preservation of property, and may enforce credits due to him from the
estate (Art. 1037)
d) As to improvements introduced by incapacitated person, apply the
rules on possession in good faith or bad faith
e) Incapacitated person must return property together with its
accessions (like the increase of the property by alluvium) (Art. 1038)
f) Incapacitated person is liable for all fruits and rents received or
could have been received through the exercise of due diligence (id.)

ACCEPTANCE AND REPUDIATION OF

INHERITANCE

1. General Principles:
a) Acceptance or repudiation is a purely voluntary and free act (Art. 1041,
NCC)
b) It is more usual to accept than to repudiate; hence, while acceptance may be
presumed, repudiation requires formalities
c) There can be partial acceptance and partial repudiation
d) Even the legitime may be repudiated, because no one can be compelled to
accept the generosity of another.
e) The effects of acceptance or repudiation always retroact to the moment of
death of the deceased (Art. 1042)
f) No person may accept or repudiate an inheritance unless he is certain of:
(i) The death of the testator
(ii) His right to the inheritance (Art. 1043)
g) If an heir dies without having accepted or repudiated, his right shall be
transmitted to his heirs (Art. 1053)

h) If several heirs are called to the same inheritance, some

may accept and others may repudiate (Art. 1504)
i) If a person who is called to the same inheritance by will
and ab intestato repudiates the inheritance in his capacity as
testamentary heir, the repudiation includes his capacity as
intestate heir (Art. 1055)
- If the heir repudiates the inheritance as intestate
heir without knowledge that he has been named
as
testamentary heir, he may still accept as
testamentary heir (id.).
j) Acceptance or repudiation, once made, is irrevocable
and cannot be impugned except for causes that vitiate
consent, or when an unknown will appears (Art. 1056)

2. Forms of acceptance:
a) Express acceptance: Public or private document (Art. 1049)
b) Implied acceptance
(i) Results from acts by which intention to accept is necessarily
implied, or which one would have no right to do except in the
capacity of an heir (Art. 1049)
(ii) Acts of mere preservation or provisional administration do not
imply acceptance (id.)
(iii) Examples of implies acceptance (Art. 1050)
(aa) If heir sells, donates, or assigns right to a stranger, or to his
co-heirs or any of them
(bb) If heir renounces right, even gratuitously, for the benefit of
one or more of his co-heirs
(cc) If heir renounces right for a price in favor of all his co-heirs
indiscriminately; but if renunciation is gratuitous and co-heirs in
whose favor renunciation is made would get right by accretion,
inheritance is not deemed accepted.

3. Who may accept or repudiate:

a) Any person who has free disposal of his property (Art. 1044)
b) Minors and incapacitated persons:
(i) Acceptance may be made by parents or guardians (id.).
(ii) Repudiation by parents or guardian must be with judicial
authorization (id)
c) Deafmutes (Art. 1048);
(i) If literate, he can accept or repudiate personally or through
an
agent
(ii) If illiterate, acceptance must be by guardian, who can also
repudiate but with judicial approval
d) Inheritance left to the poor (Art. 1044)
(i) Right to accept or repudiate belongs to person designated by
testator
(ii) In default of above, apply Art. 1030; i.e., majority vote of
municipal judge, municipal mayor, and municipal treasurer, but with
approval of RTC.

e) Corporations (Art. 1045):

(i) Acceptance may be made by their lawful
representatives qualified to acquire property in their behalf
(ii) Repudiation may be made by the same
representatives but only with court approval
f) Public official establishments (those devoted to public
purposes like charity and education and supported by
public funds)(Art. 1046):
- Approval of the proper government
agency or department head is necessary.

4. Acceptance by creditors (Art. 1052):

a) Creditors may accept if repudiation by heir prejudices
them
b) Creditors must petition the court to allow them to
accept in name of heir
c) Acceptance by creditors should be only to the extent of
their credits
d) Any excess after acceptance by creditors pertains to the
proper testate or intestate heirs

5. Period for accepting or repudiating (Art. 1057):

a) Thirty (30) days after court issues an order of
distribution
b) If there is no acceptance or repudiation within
said period, inheritance is deemed accepted.

COLLATION
1. Meaning of collation:
It has two meanings:
First: Computing or adding certain values to the
estate, and charging the same to the legitime (Arts.
1061, 1062, 1063, 1064, NCC)
Second: Computing or adding certain values to the
estate, and charging the same to the free portion
(Arts. 1062, 1063)

2. Meaning of not collationable:

First, property or value should be computed or added,
but should be charged to the free portion (not to the
legitime).
Second, property should not be computed or charged
to the estate at all, because it is not part of the estate. (Art.
1067), like expenses for support education, medical
attendance, customary gifts.
3. As a general rule, all donations inter vivos , whether
given to compulsory heirs or to strangers, must be
reduced if found inofficious.
4. Only the value of the thing donated at the time of the
donation should be collated (Art. 1071).

5. Collation by compulsory heirs:

a) Compulsory heirs must bring to collation any property received
as donation or by gratuitous title, in order to determine the legitime
(Art. 1061).
Reason: Every donation inter vivos to a legitimate child is
generally considered an advance on his legitime.
b) The surviving spouse is a compulsory heir, but she is not
included in Art. 1061 because:
(i) Donations during the marriage are null and void
(ii) Donation propter nuptias to a future spouse is donation to a
stranger and must be imputed to the free portion because at that
time, the donee was not yet a spouse, hence, not a compulsory
heir.
c) Proceeds of life insurance are not collationable because they are
not considered donations.

d) When collation does not take place among compulsory heirs

(Art. 1062);
(i) When donor expressly provided, i.e., he does
not want
donation to be charged to an heirs legitime
But it must still be imputed to the free portion in order to
compute the legitime of the compulsory heirs (Art. 1062).
(ii) If the donee repudiates the inheritance, the donation shall
be charged to the free portion.
Ex: D has two sons, A and B. He gave A a donation of P10,000
expressly stating in the donation that the same was not
collationable. If D later dies intestate leaving an estate of
P90,000, A and B will each get P45,000. Obviously, D wanted
to give A a preference of P10,000. Anyway, the legitime of B
has not been impaired.

6. Is a legacy or devise subject to collation?

Art. 1063. Property left by will (like a legacy or devise) is not deemed
subject to collation if the testator has not otherwise provided, but the
legitime shall in any case remain unimpaired.
a) This means that the legacy or devise should be imputed to the free
portion, not to the legitime.
b) Example: T has two legitimate children, A and B. In Ts will, he
gave A a legacy of P10,000. There was no other provision in his will. If
T dies with an estate of P100,000, how should this estate be divided?
Answer: Give P10,000 legacy to A, and divide the P90,000 between A
and B, or P45,000 each. The P10,000 legacy to A does not impair Bs
legitime, which is P25,000 (1/2 of P50,000).
c) Suppose in the above example, T gave the P10,000 to A as a
donation inter vivos. No preference to A was clearly intended by T. So
upon Ts death, leaving an estate of P90,000, add the P10,000
donation to A to the P90,000, and from the total estate of P100,000,
give P40,000 to A (he already got P10,000 as advance legitime), and
give B P50,000.

7. Grandchildren who inherit from their

grandparents by representation of their
parents must bring to collation all
properties received by their parents
from their grandparents (Art. 1064).

8.What donations are not collationable:

a) Parents are not obliged to bring to collation

in the inheritance of their own parents or

ascendants properties which had been donated
by the latter to their children (Art. 1065).
Reason: The parents were not the ones who
received the donations.

b) Donation to the spouse of a child should not be

brought to collation (Art. 1066):
(i) The donation here is not considered an
advance on the childs legitime because it was not
given to him, but it must still be imputed to the
free portion of the estate of his parent
(ii) But if the donation was given to the spouses
jointly, the share pertaining to the child of the
donor must be brought to collation.

c) Expenses for support, education, medical

attendance, even in extraordinary illness,
apprenticeship, ordinary equipment, or customary
gifts are not subject to collation (Art. 1067).
(i) Reason: These expenses are not donations
but part of the moral, social, and legal obligations
of the parents towards their children.
(ii) Education here means only up to high
school, because college education is covered by
Art. 1068.

d) Expenses of parents in giving children

professional, vocational, or other career shall not
be brought to collation unless the
parents so
provide or unless they impair the legitime (like
a Doctor of Philosophy degree obtained by a
child abroad at the expense of the parents).
But when collation is required, the sum
that the child would have spent had he lived with
the parents must be deducted (Art. 1068).

e) Wedding gifts by parents and ascendants consisting

of jewelry, clothing, and outfit are not chargeable to
the legitime of the of the child or descendant.
Note: Justice J.B.L. Reyes had believed that cash
wedding gifts are not included in the above Article;
while Justice Paras believed otherwise, the reason
behind both gifts being the same, i.e., the sentimental
value of the childs wedding to the parents.
f) But payment by parents of a childs debts, election
expenses, fines, and similar expenses are
collationable (Art. 1069)

9. What should be brought to collation, the thing or its

value? (Art. 1071)
a) Only the value of the thing at the time of the donation,
not the thing itself, shall be brought to collation (Art.
1071).
The things subsequent increase or deterioration and
even its total loss or destruction, be it accidental or
culpable, shall be for the account and risk of the donee
(id.).

10. How to equalize shares of heirs if there is collation

(Arts. 1073-1074):
a) Co-heirs shall perceive properties of the same nature,
class, and quality
b) If donated property is immovable, co-heirs should
receive the cash equivalent or in securities, or sell other
properties at public auction.
c) If donated property is movable, co-heirs can select an
equivalent of other personal property in the estate at its
just price.

11. Reimbursable expenses of the donee

(Art. 1076)
a) Necessary expenses for preservation.
b) Improvements to immovables which
have increased value of property.
c) Works for mere pleasure of donee
should be removed without injuring the
estate.

12. Problems:
a) T had two children X and Y. During his lifetime, T gave
child X P10,000. Later, in his will, T distributed his estate of
P90,000 as follows:
X P15,000
Y P25,000
Friend F P50,000
When T died, X complained, claiming that he was not given
his legitime. Is X right?
Answer: The P10,000 earlier given by T to X is
collationable, so that Ts estate is actually valued at
P100,000. The legitime of X and Y is of P100,000
(P50,000) or P25,000 each. X had already received from T
P10,000. Add to this the P15,000 that T gave him in the
latters will, and he actually received his legitime of P25,000.

b) X has three children A, B, and C. During his lifetime, X

gave A a donation of P60,000. When X died, he left an
estate of P30,000. Divide Xs estate.
Answer:
Xs estate is actually P90,000 (the P60,000 donation to A
and the remainder of his estate of P30,000). The legitime of
A, B and C is, therefore P45,000. Divide this into three, and
A, B and C each gets a legitime of P15,000. B and C should
get the remaining P30,000 of Xs estate as their legitime. X
gets his legitime of P15,000, and the free portion of P45,000
(imputing his donation to his legitime and the free portion).
So Xs donation is not inofficious.

c) T has two legitimate children A and B. In his will, T

gave A a legacy of P80,000. However, when T died, his
estate minus As legacy would only be P20,000. Should As
legacy be reduced?
Answer:
The total estate of T is P100,000 (P80,000 plus
P20,000), so the legitime of A and B is P50,000 or P25,000
each. In order to complete Bs legitime of P25,000, reduce
As legacy by P5,000 and add it to the remaining estate of
P20,000. So both A and B would receive a legitime of
P25,000 each, while the rest of As legacy would be taken
from the free portion.