1|Page

2|Page
Table of Contents

SUCCESSION.......................................4

A. GENERAL PROVISIONS.................4
A.1 Definition.......................................4
A.2 Succession occurs at the moment of death 4
A.3 Kinds of Successors....................7

B. TESTAMENTARY SUCCESSION...7
B.1 Wills................................................7
B.2 Institution of Heirs......................21
B.3 Substitution of Heirs..................25
B.4. Conditional Testamentary Dispositions and Testamentary Dispositions with a
Term....................................................29
B.5. Legitime......................................31
B.6 Disinheritance.............................32
B.7 Legacies and Devises................34

C. LEGAL OR INTESTATE SUCCESSION 40

C.1 General Provisions, Relationship and Right of Representation 40
C. 2 Order of Intestate Succession..42

D. PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSION 61

D. 1 Right of Accretion......................61
D.2 Capacity to Succeed by will or intestacy 64
D.3 – Acceptance and Repudiation of the Inheritance 67
D.4 – Collation....................................70
D.5 Partition and Distribution of Estate 71

3|Page
 Answer: The decedent is the general term
applied to the person whose property is
transmitted through succession, whether or
not he left a will. (Art. 775)

If he left a will, he is also called the

“Testator”

If he did not leave a will, he is called

“Intestate”

Question: What is the subject matter or

object of Succession?

Answer: The mass of property, rights, and

obligations of the decedent which are not
extinguished by death and thus transmitted
to the heirs is called the inheritance.

Question: What is scope of inheritance?

Answer:

General rule: The inheritance includes all

the property, rights and obligations of a
person which are not extinguished by his
death, and therefore transmissible to his
heirs. (Art. 776)

As a rule, all rights and obligations are

transmissible, unless they fall under
recognized exceptions.

Exceptions:

1. Rights and obligations are extinguished

by debt and are not transmissible in the
SUCCESSION following cases:

 where the rights and obligations are

A. GENERAL PROVISIONS
not transmissible by their nature.
A.1 Definition This refers to rights and obligations
which are strictly personal.
 where the rights and obligations are
Question: What is Succession? not transmissible by stipulation
Answer: It is a mode of acquisition, by  where the rights and obligations are
virtue of which, the property, rights and not transmissible by provision of law
obligations to the extent of the value of the 2. Money debts left by the decedent are not
inheritance, of a person are transmitted transmissible in the sense that they are paid
through his death to another or other either from the estate of the decedent, and only
by his will or by operation of law. (Art. 774) the net estate or remainder goes to the
Question: Who are the common parties to heirs. If the decedent’s estate is not
Succession? sufficient to pay his debts, his heirs cannot
be held liable for said debts in their personal
Answer: The decedent, the successor, the capacity.
devisees or legatees

Question: Who is the decedent?

4|Page
Question: A borrowed from X P1,000. A bequeathed with specific properties do not
died without paying the debt. A left no require Court adjudication to identify which
property but he is survived by his son, B. X particular properties become theirs; the
brought an action against B for the testator had already identified these. From
collection of the debt on the ground that, the very moment of the testator’s death, title
since B is the only heir of A, B inherited all over these particular properties vests on the
of A’s rights and obligations. Will the action heir, legatee, or devisee.
prosper?
At the outset, this Court observes that the
Answer: NO. The heirs are not personally parties and even the lower courts
liable with their own individual properties for erroneously applied the provisions of the
the monetary obligations/debts left by the present Civil Code to the will and the estate
decedent. An heir’s liability for his of Bishop Sofronio. The law in force at the
predecessor’s obligations is limited by the time of the decedent's death determines the
amount of inheritance he receives. B cannot applicable law over the settlement of his
be made liable for A’s unpaid obligation estate. Bishop Sofronio died in 1937 before
because B did not inherit anything from A. the enactment of the Civil Code in 1949.
Therefore, the correct applicable laws to the
settlement of his estate are the 1889
Spanish Civil Code and the 1901 Code of
A.2 Succession occurs at the moment of
death Civil Procedure.

In any case, under both the Spanish Code

Question: When does succession occur? and our Civil Code, successional rights are
vested at the precise moment of the death
Answer: The rights to the succession are of the decedent. In any case, under both the
transmitted from the moment of the Spanish Code and our Civil Code,
decedent (Art. 777). successional rights are vested at the
The transmission occurs by operation of precise moment of the death of the
law. Before the death of the decedent, the decedent.
rights of the heirs are merely inchoate. It is The inheritance vests immediately upon the
upon the decedent’s death that their rights decedent's death without a moment's
are vested. interruption. This provision was later on
translated and adopted as Article 777 of our
Civil Code.
Question:  Bishop Sofronio Hacbang died
leaving several properties behind. Bishop As a consequence of this principle,
Sofronio was survived by his parents, ownership over the inheritance passes to
Basilio and Maria Hacbang, and his siblings: the heirs at the precise moment of death -
Perfecto Hacbang, Joaquin Hacbang, Lucia not at the time the heirs are declared, nor at
Teresita Hacbang, and Dolores Hacbang the time of the partition, nor at the
Alo. In his will he instituted half of his estate distribution of the properties. There is no
to his parents and the other half to Dolores. interruption between the end of the
The will was accepted for probated but was decedent's ownership and the start of the
archived before the proceeding was heir/legatee/devisee's ownership. (Hacbang
completed. One of the main issue in this vs. Alo, 772 SCRA 36; October 05 2015)
case whether or not, the ownership of
properties passes to the heirs even without
completing the probate. Decide Question: What are the implications of this
principle or rule?
Answer: No.
Answer:
Article 777 of our Civil Code provides that
the inheritance vests immediately upon the As to the governing law, the law in effect at
decedent’s death without a moment’s the time of death of the decedent governs
interruption. Heirs, legatees, and devisees the succession. (Art. 2263)

5|Page
 1. Rights to the inheritance of a appointed executor or administrator, and
person who died, with or without a will, without need of a judicial declaration of their
before the effectivity of the new Civil Code, status as heirs.
shall be governed by the Civil Code of 1889,
Similarly, the heirs may be sued without a
by other previous laws, and by the Rules of
previous declaration of heirship, provided
Court. (Art. 2263)
there is no pending special proceeding for
2. The inheritance of those who, with the settlement of the estate of the decedent.
or without a will, die after the beginning of
As to the continuity of possession, the
the effectivity of the new Civil Code, shall be
possession of hereditary property is
adjudicated and distributed in accordance
deemed transmitted to the heir without
with the new Civil Code and the Rules of
interruption and from the moment of the
Court; but the testamentary provisions shall
death of the decedent, in case the
be carried out insofar as they may be
inheritance is accepted.
permitted by the new Civil Code.
As to the accrual of estate tax, it will accrue
As to the immediate disposition, because
upon the death of the decedent, even if the
the heirs succeed immediately to all of the
heirs come into possession of the property
property of the decedent upon his death, the
only later.
heirs may enter upon the possession and
administration of the said property
immediately, in the absence of debts
existing against the estate. Question: A Complaint for Annulment of
Sale and Reconveyance of Property was
The heirs may also dispose of their filed with the RTC by the respondents and
respective shares immediately after the asserted their ownership over a certain
death of the decedent, even if the actual parcel of land against the petitioners.
extent of such share not yet determined According to the respondents, their father,
until the liquidation of the estate. Of course, Pedro Calalang contracted two marriages
the effect of such alienation is deemed during his lifetime. The petitioners argue
limited to what would be eventually that the disputed property belonged to the
adjudicated to the vendor-heir. conjugal partnership of the second marriage
of Pedro Calalang which was issued to
As to the right to the fruits, the heir becomes
Pedro Calalang during the subsistence of
the owner of his share as well as all the
the second marriage. On the other hand,
corresponding fruits or increments accruing
the respondents claim that the disputed
after the death of the decedent (such as
property was transferred by their maternal
stock dividends declared after the death of
grandmother, Francisca Silverio, to their
the decedent).
parents on the first marriage, Pedro
Thus the provision of Art. 781 that Calalang and Encarnacion Silverio, during
“inheritance includes not only the property the latter’s marriage. Thus, the respondents
and the transmissible rights and obligations argue that it belonged to the conjugal
existing at the time of his death, but also partnership of the first marriage of Pedro
those which have accrued thereto since the Calalang with Encarnacion Silverio. 
opening of the succession” is not strictly
The trial court rendered decision in favor of
accurate. Fruits accruing after the death if
the respondents and held that when the first
the decedent belong to the heir not as part
marriage was dissolved, the corresponding
of the original inheritance, but as accession
shares to the disputed property were
to the property he comes to own upon the
acquired by the heirs of the decedent
death of the decedent.
according to the laws of succession. Upon
As to the suability and capacity to sue of the appeal from the CA, it reversed the factual
heirs, since succession takes place by findings of the trial court and held that Pedro
operation of law at the moment of death of Calalang was the sole and exclusive owner
the decedent, the heirs can sue upon the of the subject parcel of land, on the ground
rights of the decedent, without having to be of insufficient evidence, to prove that the

6|Page
disputed property was indeed jointly
acquired from the parents of Encarnacion
Question: What are the manners of
Silverio during the first marriage. 
succession?
Did Pedro Calalang deprived his heirs of
Answer: Succession may be: (Art. 778)
their respective shares over the disputed
property when he alienated the same? a. Testamentary – Succession by will (Art.
779)
Answer: No
b. Legal or Intestate – Succession by
It is hornbook doctrine that successional
operation of law, in the absence of will
rights are vested only at the time of death.
Article 777 of the New Civil Code provides  Compulsory succession is
that "[t]he rights to the succession are succession to the legitime. It is also
transmitted from the moment of the death of by operation of law, but regardless
the decedent." In Butte v. Manuel Uy and of a will (unlike intestate succession,
Sons, Inc., we proclaimed the fundamental which applies in the absence of a
tenets of succession:  will).
The principle of transmission as of the time c. Mixed – Succession which is effected
of the predecessor's death is basic in our partly by will and partly by operation of law.
Civil Code, and is supported by other (Art. 780)
related articles. Thus, the capacity of the
heir is determined as of the time the
decedent died (Art. 1034); the legitime is to
A.3 Kinds of Successors
be computed as of the same moment (Art.
908), and so is the in officiousness of the
donation inter vivas (Art. 771). Similarly, the Question: Who is the successor?
legacies of credit and remission are valid
Answer: He is the person who succeeds to
only in the amount due and outstanding at
the property of the decedent. He may be
the death of the testator (Art. 935), and the
either:
fruits accruing after that instant are deemed
to pertain to the legatee (Art. 948).  A. Heir, if he succeeds by universal
title, i.e., to the whole or a fraction of the
Thus, it is only upon the death of Pedro
inheritance, without determination of the
Calalang on December 27, 1989 that his
items composing it.
heirs acquired their respective inheritances,
entitling them to their pro indiviso shares to Art 782 provides that an heir is a person
his whole estate. At the time of the sale of called to the succession either by the
the disputed property, the rights to the provision of a will or by operation of law.
succession were not yet bestowed upon the
heirs of Pedro Calalang. And absent clear Kinds of Heirs
and convincing evidence that the sale was i. Compulsory Heirs – those who succeed to
fraudulent or not duly supported by valuable a portion determined by law, which cannot
consideration (in effect an in officious be impaired, reduced or taken away by the
donation inter vivas), the respondents have decedent, even if there is a will (except in
no right to question the sale of the disputed cases of disinheritance)
property on the ground that their father
deprived them of their respective shares. ii. Voluntary or Testamentary Heirs – those
Well to remember, fraud must be who succeed according to the decedent’s
established by clear and convincing will
evidence. Mere preponderance of evidence iii. Legal or Intestate Heirs – those who
is not even adequate to prove fraud. The succeed to the decedent in the absence of a
Complaint for Annulment of Sale and will, according to the amount or proportion
Reconveyance of Property must therefore determined by law.
be dismissed.

7|Page
 B. Devisees and Legatees, if the formalities prescribed for the execution of a
successor succeeds by particular title, i.e., will essential to its validity, and cannot be
to individual or specified items of personal disregarded.
property or real property
A will cannot impair the legitime reserved by
i. Devisees are persons to whom gifts of law for compulsory heirs.
real property are given by virtue of a will
An instrument which disinherits a
(Art. 782)
compulsory heir is considered a will which
ii. Legatees are persons to whom gifts of must be probated. While it does not make
personal property are given by virtue of a an affirmative disposition of the testator’s
will. (Art. 782) property, the disinheritance is an act of
disposition in itself, as it results in the
NOTE: The distinction between heir and
disposition of the property of the testator in
legatee/devisee is important only in case of
favor of those who would succeed in the
preterition, which annuls the institution of
absence of the disinherited heir.
heirs, but does not affect the institution of
legatees and devisees to the extent that the A will is revocable while the testator is still
legitimes are not impaired. alive.

Question: What are the characteristics of a

will?
B. TESTAMENTARY SUCCESSION
Answer:

 It is strictly personal act

B.1 Wills
 It is a free and intelligent act (the act
must be free of violence,
Question: What is testamentary intimidation, fraud, undue influence,
succession? or mistake;)
Answer: Succession by will. This kind of  It disposes of property
succession is preferred to intestate  It is revocable before the death of
succession. Doubts are resolved in favor of the testator
testacy. As far as is legally possible, the  It is formal or solemn (it must comply
expressed desire of the testator must be with the formal requisites to be valid)
followed and the dispositions of the  It is executed by a testator with
properties in his will should be upheld. testamentary capacity
 It is executed with animus testandi
The right to make a will is purely statutory
 It is a unilateral act
and not a natural right. It must therefore be
 It takes effect upon the death of the
exercised in accordance with the
testator (mortis causa)
requirements of the law (e.g., the required
 It is an individual act (joint wills are
formalities) and within the limits provided by
prohibited)
law (e.g., legitimes must be respected).
Question: Discuss why is the making of a
Question: What is a Will?
will a strictly personal act.
Answer: A will is an act whereby a person
Answer: The making of a will is a strictly
is permitted, with the formalities prescribed
personal act. It cannot be left in whole or in
by law, to control to a certain degree the
part to the discretion of a third person. It
disposition of his estate, to take effect after
cannot be accomplished through the
his death. (Art 783)
instrumentality of an agent or attorney (Art.
Some notes: 784).

The right to make a testamentary It is the disposition of property which must

disposition is purely of statutory creation, be personally made by the testator. The
and is available only upon compliance with drafting or typing of the will can be
the requirements of the statute. The delegated to other persons.

8|Page
The duration or efficacy of the designation the testator bequeaths his Mercedes Benz,
of heirs, devisees, or legatees, when and it turn out that he has more than one.
referred to by name, cannot be left to the
Art. 789 provides that when there is an
discretion of a third person. The
imperfect description, or when no person or
determination of the portions which the
property exactly answers the description –
heirs, devisees, or legatees are to take,
when referred to by name, cannot be left to  Mistakes and omissions must be
the discretion of a third person. (Art. 785) corrected, if the error appears from
the context of the will or from
However, the testator may entrust to a third
extrinsic evidence;
person the distribution of specific property
or sums of money that he may leave in  The oral declarations of the testator
general to specified classes or causes. He as to his intention are excluded or
may also entrust to a third person the not considered (Art 789)
designation of the persons, institutions or As to patent ambiguity – where the
establishments to which such property or ambiguity is obvious or apparent on the face
sums are to be given or applied. (Art 786) of the will.
The testator may not make a testamentary Example: If the testator wills 1/5 of his
disposition in such manner that another estate to “some of my siblings” or
person has to determine whether or not it is bequeaths “a few of my art collection”.
to be operative. (Art. 787)
Art. 789 provides that when an uncertainty
Question: How to properly interpret a will? arises upon the face of the will, as to the
Answer: The following rules of application of any of its provisions –
interpretation are based on the principle that  The testator’s intention is to be
testacy is preferred to intestacy, and the ascertained from the words of the
intent of the testator is paramount and must will, taking into consideration the
be given effect as far as legally possible: circumstances under which it was
Giving Effect to the Will made.
 The oral declarations of the testator
 If a testamentary disposition admits as to this intention are excluded or
of different interpretations, in case of not consideration (Art. 789)
doubt, that interpretation by which
the disposition is to be operative Question: How do we interpret the words in
shall be preferred (Art. 788) a will?
 The words of a will are to receive an Answer: The words of a will are to be taken
interpretation which will give to every in their ordinary and grammatical sense,
expression some effect, rather than unless a clear intention to use them in
one which will render any of the another sense can be gathered, and that
expressions inoperative. (Art. 791) other can be ascertained. (Art 790)
 Of two modes of interpreting a will,
that is to be preferred which will Technical words in a will are to be taken in
prevent intestacy. (Art. 791) their technical sense (Art. 790)

Question: How to properly interpret  Unless the context clearly indicates

ambiguities or uncertainties? a contrary intention or
 Unless it satisfactorily appears that
Answer: As to latent ambiguity – where the the will was drawn solely by the
ambiguity is not obvious on the face of the testator, and that he was
will, and appears only upon consideration of unacquainted with such technical
extrinsic circumstances. sense.
Examples: If the testator wills 1/5 of his The invalidity of one of several dispositions
estate to “my cousin Maria”, and it turn out contained in a will does not result in the
that he has two cousins named Maria; or if invalidity of the other dispositions, unless it

9|Page
is to be presumed that the testator would in Braille language. He speaks English
not have made such other dispositions if the fluently.
first invalid disposition had not been made
Can he:
(Art. 792)
a. Make a will? AND

b. Act as a witness to a will?

Question: Discuss the scope of
testamentary provisions Answer:
Answer: a. YES. Donald may make a notarial will. A
blind man is not expressly prohibited from
i. Property acquired after the making of a
executing a will. In fact, Art. 808 of NCC
will shall only pass thereby, as if the testator
provides for an additional formality when the
had possessed it at the time of making the
testator is blind. Donald however, may not
will, should it expressly appear by the will
make a holographic will in Braille because
that such was his intention (Art 793)
the writing in Braille is not handwriting. A
ii. Every devise or legacy shall convey all holographic will to be valid must be entirely
the interest which the testator could devise written, signed and dated by the testator in
or bequeath in the property disposed of, his own handwriting
unless it clearly appears from the will that
b. NO. A blind man is disqualified by law to
he intended to convey a less interest. (Art
be a witness to a notarial will.
794)

Question: Who can make a will?

Question: What are the requirements for
Answer: All persons who are not expressly
the capacity to make a will?
prohibited by law may make a will. Thus, for
example: Answer:
1. A blind person or a deaf-mute can make 1. The testator is not expressly prohibited by
a will (Art. 807) law to make a will (Art 796)
2. A person under guardianship can make a 2. Testator is at least eighteen (18) years of
will age (Art 797)
3. A person under civil interdiction can make 3. The testator must be of sound mind at the
a will (unlike dispositions inter vivos, which time of its execution (Art 798)
he cannot do.)
Question: What are some test of the
Question: Can a male or female make a soundness of mind?
will?
Answer:
Answer: A person of either sex may make
a will (Art. 797) i. To be of sound mind, it is not necessary
that
1. A married woman may make a will
without the consent of her husband, and  The testator be in full possession of
without the authority of the court. (Art 802) all his reasoning faculties, or
 That his mind be wholly unbroken,
2. A married woman may dispose by will of unimpaired, or unshattered by
all her separate property as well as her disease, injury or other cause. (Art
share of the conjugal partnership or 799)
absolute community property. (Art 803)  Neither old age, physical infirmities,
feebleness of mind, weakness of the
memory, the appointment of a
Question: Donald was born blind. He went guardian. Nor eccentricities are
to school for the blind, and learned to read sufficient singly or jointly to show

10 | P a g e
 testamentary incapacity. (Torres v. Question: Patty, unmarried and childless,
Lopez 48 Phil. 772) died testate. She bequeathed all her
 Illness, like advanced tuberculosis, properties to her nephew Loreto who filed a
insomnia and diabetes, does not petition for probate of the will. Anton
render the testator incapacitated. opposed the petition, claiming that Patty
(Neyra v. Neyra 76 Phil 296) was mentally incapable to make a will at the
time of its execution. Rose, another
ii. To be of sound mind, it shall be sufficient
oppositor, testified that Patty was referred to
if the testator was able, at the time of
as "forgetful" when she was still alive.
making the will, to know the following:
Should the will be admitted to probate?
 The nature of the estate to be Answer: YES. It is incumbent upon those
disposed of; it is not necessary, who oppose the probate of a will to clearly
however, that the testator remember establish that the decedent was not of
each property he owns. sound and disposing mind at the time of the
 The proper objects if his bounty; the execution of said will. Otherwise, the state is
testator must be able to recognize at duty-bound to give full effect to the wishes
least his near relatives who are the of the testator to distribute his estate in the
natural objects if his affection. manner provided in his will so long as it is
 The character of the testamentary legally tenable. The state of being forgetful
act (Art 799). The testator must does not necessarily make a person
understand the nature if his act, i.e., mentally unsound so as to render him unfit
that it will dispose of his property to execute a Will. Forgetfulness is not
upon his death. equivalent to being of unsound mind. Apart
Question: Is there a presumption that a from the testimonies pertaining to Patty’s
person making a will is of sound mind? forgetfulness, there is no substantial
evidence, medical or otherwise, that would
Answer: Yes. The law presumes that every show that Patty was of unsound mind at the
person is of sound mind, in the absence of time of the execution of the Will (Baltazar, et
proof to the contrary. (Art 800) al. vs. Laxa, G.R. No. 174489, April 11,
2012)
The burden of proof that the testator was
not of sound mind at the time of making his
dispositions is on the person who opposes
the probate of the will. (Art 800). Question: Is the form of the will essential to
its validity?
But if the testator, one month, or less,
before making his will was publicly known to Answer: Compliance with the formalities
be insane, the person who maintains the required by law, is essential to the validity of
validity of the will must prove that the a will. (Vda. De Gil v. Vda. De Murciano 88
testator made it during a lucid interval (Art Phil 260)
800) The purpose of these formalities is to
Question: When is the time of determining prevent bad faith and fraud, to avoid
capacity? substitution of wills and to guaranty their
truth and authenticity. The law on formal
Answer: Capacity to make a will is requirements for a will should be interpreted
determined as of the time of making thereof. to attain these ends. But when an
(Art798) interpretation already given assures such
ends, any other interpretation that adds
Supervening incapacity does not invalidate
nothing but demands more requisites
an effective will (Art 801)
entirely unnecessary, useless and
Supervening capacity does not validate the frustrative of the testator’s last will, must be
will of an incapable (Art 801) disregarded. (Abangan v.
Abangan 40 Phil 476)

11 | P a g e
Unsubstantial departure from the usual Answer: Every will, other than a
forms should be ignored, especially where holographic will, must comply with the
the authenticity of the will is not assailed. following requirements (in addition to the
(Gonzales v. Gonzales 90 Phil 444) two general requirements mentioned
above):
Question: What are the forms of will
recognized by law? 1. Signing by the testator.

Answer: The will must be subscribed at the end

thereof by the testator himself, or by the
1. Ordinary or attested wills, also known as
testator’s name written by some other
notarial wills
person in his presence, and by his express
2. Holographic or handwritten wills direction. (Art 805)

Question: When is the reckoning point as The testator must sign his will at the end
to the validity of the form of the will? thereof, to ensure that there are no
unauthorized additions or interpolations.
Answer: The validity of a will as to its form
(Extrinsic validity) depends upon the “At the end” means after the dispositive
observance of the law in force at the time it portions.
is made (Art 795)
The testator can sign with his thumbmark,
Any subsequent change in the law would but not with a mere cross, because a cross
have no retroactive effect. (In Re Will of does not have the trustworthiness of a
Riosa 39 Phil 23) thumbmark (unless it is the usual signature
of the testator or one of the ways by which
As to intrinsic validity, however, the he signs his name)
governing law is the law in force at the time
of death of the testator (Art 2263) The will can also be subscribed by the
testator’s name written by another person in
Question: What are the general formal the presence of the testator and at his
requirements of a will? express direction
Answer:
 In this case, the attestation clause
1. In writing (Art 804) must state that the testator caused
some other person to write his
 The law does not recognize oral or name, under his express direction
nuncupative wills (Art 805)
2. Executed in a language or dialect known  It is unimportant whether the person
to the testator (Art 804) who writes the name if the testatrix
also signs his own name or not
 The testator is presumed to know (Barut v. Cabacungan 21 Phil 461)
the language in which his will is  The agent must actually write the
written (Abangan v. Abangan 40 Phil name of the testator. It is not
476) sufficient for the agent to write his
 The testator is also presumed to own (agent’s) name only, or to
know the dialect in his locality or merely sign above the printed or
area of residence (Abangan v. typewritten name of the testator
Abangan 40 Phil 476) (Balonan v. Abellana 109 Phil 359)
 Compliance with this requirement
need not be stated in the will or 2. The testator (or his agent) must sign the
attestation clause. This may be will in the presence of the attesting
proved by proof aliunde or extrinsic witnesses. (This requirement is based on
evidence (Lopez v. Liboro 81 Phil the facts which must be stated in the
429) attention clause.

Question: What are the formal  The actual seeing if the signature
requirements for notarial wills? made is not necessary. It is sufficient

12 | P a g e
 if the signatures are made where it is  If there are more than three attesting
possible for each of the necessary witnesses, the extra witness is
parties, if they so desire, to see the considered superfluous. The validity
signatures placed upon the will (In re of the will is not affected if such extra
Nepomuceno 29 Phil 638) witness is disqualified, has no
capacity or signed in the absence of
the testator or other witnesses.
Question: Maria, thinking of her mortality, (Gillesania v. Menesalvas 13 Phil
drafted a will and asked Rob, Honey, Love 116)
and Ben to be witnesses. During the day of
d. The witnesses must sign in the presence
the signing of the will, Maria fell down the
of the testator and of one another.
stairs and broke both her arms. Coming
from the hospital, Maria, insisted on signing  It is not required that the signing of
her will by thumbmark. Later Maria was run the testator, witnesses, and the
over by a drunk driver while crossing the notary should be accomplished in a
street in Greenbelt. May the will of Maria be single act. (Javellana v. Ledesma 97
admitted to probate? Give your reason Phil 258)
briefly. (2007 Bar)  The actual seeing of the signature
Answer: YES. Maria’s thumbmark in this made is not necessary. It is sufficient
case has all the hallmarks of a valid if the signatures are made where it is
signature. Maria clearly intended to use her possible for each of the necessary
thumbmark as her signature and the parties, if they so desire, to see the
circumstances justified her use of her signatures placed upon his will. (Yap
thumbmark (Garcia v. La Cuesta, G.R. No. Tua v. Yap Ca Kuan 27 Phil 579)
L-4067, November 29, 1951).  Otherwise put, the “presence”
requirement is satisfied if, based on
existing conditions and the relative
position of the participants each of
2. Attestation and subscription by Three
them can see the other signs by
Witnesses.
merely casting his eyes in the proper
The will must be attested and subscribed by direction (Nera v. Rimando 198 Phil
three or more credible witnesses in the 450)
presence of the testator and of one another  If one of the witnesses is in an outer
(Art 805) room, and the others are in an inner
room, and the two rooms are
a. Attestation consists in witnessing the
separated by a curtain, the
testator’s execution of the will in order to
“presence” requirement is not
see and take note mentally that those things
satisfied. (Nera v. Rimando 198 Phil
are done which the statute requires for the
450)
execution of a will and that the signature of
 If one of the witnesses leaves the
the testator exists as a fact. (Taboada v.
room where the execution takes
Rosal; GR No. L-36033)
place, or places himself so remotely
b. Subscription is the signing of the therein as to be cut off from actual
witnesses’ names upon the same paper for participation in the proceedings, the
the purpose of identification of such paper “presence” requirement is not
as the will executed by the testator. satisfied.
(Taboada v. Rosal; GR No. L-36033)
e. The validity of the will does not depend
c. There must be at least three 3 attesting on the united support of the will by all of
witnesses. those witnesses. A will may be admitted to
probate even if one or some of the
 The notary public who notarized the
witnesses give unfavorable testimony. It is
will cannot be considered or counted
sufficient if the court is satisfied from all the
as one of the attesting witnesses
proof that the will was executed and
(Cruz v. Villasor GR No. L-32213)

13 | P a g e
attested in the manner required by law  If a page contains only the
(Tolentino v. Francisco 57 Phil 749) attestation clause, the signature of
the witnesses at the bottom are
sufficient. It is no longer necessary
Question: On his deathbed, Vic was for them to sign at the margin.
executing a will. In the room were Clara, Neither is it necessary for the
Carmela, Charlie and Atty. Christian, a testator to sign anywhere on the said
notary public. Suddenly, there was a street page, since the attestation clause
brawl which caught Charlie's attention, does not pertain to him.
prompting him to look out the window.
d. The signing of each page must be done
Charlie did not see Vic sign a will. Is the will
by the testator and the witnesses in the
valid?
presence of one another.
Answer:
e. The signing by the testator and witnesses
a) Yes, the will is valid. The law does not may be in any order.
require a witness to actually see the testator
4. Numbering Pagination
sign the will. It is sufficient if the witness
could have seen the act of signing had he All the pages shall be numbered
chosen to do so by casting his eyes to the correlatively in letters placed on the upper
proper direction. part of each page (Art 805)
b) Yes, the will is valid. Applying the "test of a. The purpose is to ensure that no page
position", although Charlie did not actually has been removed.
see Vic sign the will, Charlie was in the
proper position to see Vic sign if Charlie so  If all the dispositions are contained
wished. in a single page, it is no longer
necessary to paginate or number
that page, since it cannot be
removed. (Abangan v. Abangan 40
3. Marginal Signature on Every Page
Phil 476)
The testator or person requested by him to  Although the numbering of the page
write his name and the instrumental containing the attestation clause
witnesses of the will shall also sign as does not appear in the upper part
aforesaid, each and every page thereof, thereof, yet if that numbering is
except the last, on the left margin. (Art 805) found in its text, as when it is said
therein that the will consists of three
a. if the front and back of a single sheet of
sheet actually used, correlatively
paper are used, both pages must be signed.
numbered, “besides this one”, the
(In re Estate Sagusin, 41 Phil 875)
pagination requirement is
b. The signatures can be on either the left or substantially complied with, for it is
right margin or anywhere on the page. inferable from that statement that the
(Avera v. Garcia 42 Phil 145) page with the attestation clause is
the fourth page (Fernandez v. Vergel
c. The law required that each page bear the
de Dios 46 Phil 922)
signatures of the testator and the witnesses,
to ensure that there has been no b. Paging with Arabic numerals or other
unauthorized substitution or intercalation of system if successive numbering is also valid
pages. (Nayve v. Mojal 47 Phil 152)
c. The pagination may be placed anywhere
 If a page is already signed at the on the page (not necessarily on the upper
bottom (following the dispositions) part)
by the testator and the witnesses, it
5. Attestation Clause
is no longer necessary for them to
sign at the margin. (Abangan v. The will must have an attestation clause,
Abangan 40 Phil 476) which shall state the following:

14 | P a g e
a. The number of pages used upon which 1. Omissions which can be supplied by an
the will is written; examination of the will itself, without the
need of resorting to extrinsic evidence, will
b. The fact that the testator signed the will
not be fatal and will not prevent allowance
and every page thereof, or caused some
of the will. (Caneda v. Court of Appeals 222
other person to write his name, under his
SCRA 781)
express direction;
Examples:
c. The fact that the testator (or the other
person he directed to write his name)  The fact that the testator/witnesses
signed in the presence of the instrumental signed each and every page of the
witness; will can be proved also by mere
examination of the signatures
d. The fact that the instrumental witnesses
appearing on the document itself.
witnessed and signed the will and all pages
Omission of this fact in the
thereof;
attestation clause is not fatal.
e. The fact that the instrumental witnesses (Caneda v. Court of Appeals 222
signed in the presence of the testator and of SCRA 781)
one another.  The failure to state in the attestation
clause the number of the pages of
Question: What is the Attestation Clause?
the instrument is ordinarily a fatal
Answer: It refers to that part of an ordinary flaw.
will whereby the attesting witnesses certify  Exception, such omission will not
that the instrument has been executed invalidate the will if the number of
before them and to the manner of the pages appears elsewhere in the will
execution of the same. It gives affirmation to itself (e.g., before the testator’s
the fact that compliance with the essential signature above the attestation
formalities required by law has been clause) so that no proof aliunde is
observed. (Caneda v. Court of Appeals 222 necessary. (Nayve v. Mojal 47 Phil
SCRA 781) 152). Otherwise, the total number of
pages must be stated in the
An ordinary will is invalid if it has no
attestation clause.
attestation clause, or such clause is left
unsigned. (Cargo v. Cargo 92 Phil 1032) 2. However, those omissions which cannot
be supplied except by extrinsic evidence
The signature of the witnesses must appear
would result in the invalidation of the
at the bottom of the attestation clause.
attestation clause and consequently, of the
Signature appearing on the left margin of
will itself. (Caneda v. Court of Appeals 222
the page containing the attestation clause is
SCRA 781)
not sufficient. (Cargo v. Cargo 92 Phil 1032)
 The attestation clause must state the
Only the attesting witnesses need to sign
fact that the testator and the
the attestation clause. The testator does not
witnesses signed in the presence of
have to sign it. (Abangan v. Abangan 40
each other, for such fact cannot be
Phil 476)
proved by the mere exhibition of the
The language used in the attesting clause will, if it is not stated therein (Caneda
need not be known to the testator, or even v. Court of Appeals 222 SCRA 781)
to the attesting witnesses. But if the  In case the will is signed by another
attestation clause is in a language not person on the testator’s behalf, the
known to the witnesses, it shall be attestation clause must state that the
interpreted to them (Art 805) testator caused some other person
to write his name, under his
Question: What are the effect of Omissions
expression direction.
in the attestation clause?
Question: Is substantial compliance
Answer:
sufficient?

15 | P a g e
Answer: Defects and imperfections in the
form of attestation or in the language used
Question: Define holographic will.
therein shall not render the will invalid if: ---

 It is proved that the will was in fact Answer: A holographic will is one entirely
executed and attested in substantial
written, dated and signed by the hand of the
compliance with all the requirements
of Article 805; AND testator. (Article 810 of the Civil Code)
 There is no bad faith, forgery, or
fraud, or undue and improper Question: Cite the rules when holographic
pressure and influence. (Art 809) will is contested and uncontested.
Note: that the doctrine of substantial
compliance under Art 809 applies only as to Answer:
defects in the form or language of the
attestation clause. In case of omissions of If contested, at least three such witnesses
certain facts which need to be stated, apply
the rule on omissions aforestated. (Caneda shall be required.
v. Court of Appeals 222 SCRA 781)
If uncontested, at least one identifying not
Question: What is a Notarial
Acknowledgment? necessarily a subscribing witness is
required to avoid the possibility of fraud. It
Answer: A will which is acknowledged
before a notary public by the testator and no witness is available, experts may be
the witnesses (Art 806) resorted to.

 The notary public shall not be

required to retain a copy of the will, (Article 811 of the Civil Code)
or file another with the office of the
Clerk of Court (Art. 806). This is to Question:
preserve the confidentiality of the
will. In 1923, when holographic will were not
 It is not required that the notary sign
allowed, Sancho Abadia executed a
the certificate of acknowledgment in
the presence of the testator and holographic will. It was presented for
witnesses. (Javellana v. Ledesma 97 probate in 1946. In 1952, the trial court
Phil 258)
allowed the will on the ground that under the
 It is not required that the testator and
witnesses acknowledge the will on new Civil Code (effective August 30, 1950),
the same day or occasion that it was holographic wills are now allowed. The case
executed. was appealed. Should the holographic will
 The notary public who notarized the
be allowed?
will cannot be considered or counted
as one of the attesting witness.
(Cruz v. Villasor GR No L-32213) Answer:
 Lack of documentary stamp does
not invalidate the will (Gabucan v. The will should not be allowed because
Manta; GR No. L-51546) under Article 795, the extrinsic validity of a
 A jurat (subscribing and swearing
will should be judged not by the law existing
before a notary public) is not
equivalent to acknowledgment and at the time of the testator’s death nor the
is not sufficient compliance with the law at the time of probate, but by the law
requirements (Azuela v. CA; GR No.
existing at the time of the execution of the
122880)
instrument. This is because, although the

16 | P a g e
will become operative only after the attesting witnesses were placed at the left-
testator’s death, still his wishes are given hand margin of the page. Can the will be
expression at the time of execution. admitted or probated?

(Vda. de Enriques, et al. vs. Miguel Abadia, Answer:

et al. L-7188)
Yes, for there is nothing in the law (Article
Question: What is the effect if holographic 805) which required that the attesting
will is lost or destroyed? witnesses should also sign at the end of the
will or at the end of the attestation clause.
Answer: If a holographic will has been lost Besides the law is to be liberally construed.
or destroyed without intent or revoke, and While perfection in drafting is to be desired,
no other copy is available, it can never be unsubstantial departures ought to be
probated because the best and only ignored.
evidence therefor is the handwriting of the
testator in said will. (In the Matter of the Petition for the Probate
of the Will of Dorotea Perez (deceased);
Question: What makes a holographic will Apolonio Toboada v. Honorable Rosal L-
valid? 36033)

Answer: In holographic wills, the Question: Suppose there is an alteration

dispositions of the testator written below his without the full signature, is the whole will
signature must be dated and signed by him void?
in order to make them valid as testamentary
dispositions. (Article 812 of the Civil Code) Answer: No, only the alteration is void.
However, if what was altered was the date
Question: What are the rules for curing or the signature, the alteration without the
defects in a holographic will? full signature makes the whole signature will
void. (Article 814 of the Civil Code)
Answer: If the last disposition is signed and
dated, preceding dispositions which are Question:
signed but not dated are validated, and
preceding dispositions which are not signed In a fit of anger, a testator tore his will twice
but dated are void. (Article 813 of the Civil and was continuing to tear when somebody
Code) held his arms and persuaded him to refrain
from tearing the will. He was prevailed
Question: upon. He then placed the torn pieces in his
pocket and said, “Nothing significant has
In notarial will consisting of two pages, the
after all been torn.” Later, the testator died,
first, containing the entirety of the will and
and the torn will found. Was there a
the second, both the attestation clause and
revocation here?
the acknowledgement, the signature of the
testator was placed at the end of the first Answer:
page thereof, but the signature of the

17 | P a g e
The will was not revoked for the act of order of succession will have to be
tearing was subjectively not yet complete, governed by his national law, that is, the
inasmuch as he had intended to tear up will Philippine law on succession. (Article 16)
some more.
Answer: The will of an alien who is abroad
(Perkes vs. Perkes 3 B. and Ald. 489, produces effect in the Philippines if made
Costigan, p.112) with the formalities prescribed by the law of
the place in which he resides, or according
Question: What are the formalities of wills to the formalities observed in his country, or
executed by Filipinos abroad? in conformity with those which this Code
prescribes. (Article 816 of the Civil Code)
Answer: When a Filipino is in a foreign
country, he is authorized to make a will in Question: What are the formalities for wills
any of the forms established by the law of executed by aliens in the Philippines?
the country in which he may be. Such will
may be probated in the Philippines. (Article Answer: A will made in the Philippines by a
815 of the Civil Code) citizen or subject of another country, which
is executed in accordance with the law of
Question: What are the formalities for wills the country of which he is a citizen or
executed by aliens abroad? subject, and which might be proved and
allowed by the law of his own country, shall
Question:
have the same effect as if executed

Carlos Reyes, a Filipino citizen residing according to the laws of the Philippines.

temporarily in Oregon, State of Washington (Article 817 of the Civil Code)

(US), executed a will in accordance with the

Question: Define joint wills.
laws of said state. Assuming the testator
returns of the Philippines and dies here Answer: Joint wills are those which contain
without modifying or executing a new will in in one instrument the will of two or more
accordance with Philippine laws, how shall persons jointly signed by them. (Article 818
his estate be dealt with, estate or intestate? of the Civil Code)
Explain your answer mentioning the
pertinent legal provisions and authorities. Question: Define reciprocal or mutual will.

Answer: Answer: They are those that provide that

the survivor of the testators will succeed to
The succession will be testamentary, since all or some of the properties of the
under Article 815 he is allowed to make a decedent. (Wills and Succession 2016,
will in any of the forms allowed in the foreign Edgardo L. Paras, page 124)
state where he may be. The will he
executed in Washington may indeed be Question: What is the effect of joint wills
probated in the Philippines. Of course, the executed abroad?
intrinsic validity of the provisions of his will,
the amount of successional rights, and the

18 | P a g e
Answer: Joints wills executed by Filipinos Answer: The following are disqualified from
in a foreign country shall not be valid in the being witnesses to a will:
Philippines, even though authorized by the
laws of the country where they may have (1) Any person not domiciled in the

been executed. (Article 819 of the Civil Philippines;

Code)
(2) Those who have been convicted of

Question: falsification of a document, perjury or false

testimony. (Article 821 of the Civil Code)
A joint will (executed by a husband and his
wife) was erroneously probated by the In addition, the following are also

Regional Trial Court. There being no disqualified: the witness; the spouse of the

appeal, the judgement became final. Can witness; the parent of the witness; the child

the joint will be given effect? of the witness; and anyone claiming the
right of said witness, spouse, parent, or
Answer: child. (Article 823 of the Civil Code)

Yes, for while joint wills are prohibited and Question: What is the effect of subsequent
should have been disallowed, still in this incapacity by the witnesses?
case, the judgment had already become
final. This is not a case of lack of Answer: If the witnesses attesting the

jurisdiction: it is simply an instance of an execution of a will are competent at the time

erroneous but valid judgment. Otherwise of attesting, their becoming subsequently

stated, this is merely an error in law, not an incompetent shall not prevent the allowance

error in jurisdiction. of the will. (Article 822 of the Civil Code)

(Bernabe de la Cerna vs. Manuela Rebaca Question: Are the creditors of the testator

Potot and Court of Appeals, 12 SCRA 576, prevented from being competent witnesses

L-20234) to the latter’s will?

Witnesses to Wills Answer: No, they are not prevented.

Question: What are the qualifications for A mere charge on the estate of the testator

witnesses to Notarial Will? for the payment of debts due at the time of
the testator’s death does not prevent his
Answer: Any person of sound mind and of creditors from being competent witnesses to
the age of eighteen years or more, and not his will. (Article 824 of the Civil Code)
blind, deaf or dumb, and able to read and
write, may be a witness to the execution of Codicils and Incorporation by reference

a will mentioned in article 805 of this

Question: Define codicil.
Code. (Article 820 of the Civil Code)

Answer: A codicil is a supplement or

Question: Who are disqualified from being
addition to a will, made after the execution
witnesses to a notarial will?
of a will and annexed to be taken as a part

19 | P a g e
thereof, by which any disposition made in restriction of this right is void. (Article 828 of
the original will is explained, added to, or the Civil Code)
altered. (Article 825 of the Civil Code)
Question: What are the rules for revocation
Question: What are the formalities of of wills?
codicils?
Answer: A revocation done outside the
Answer: In order that a codicil may be Philippines, by a person who does not have
effective, it shall be executed as in the case his domicile in this country, is valid when it
of a will. (Article 826 of the Civil Code) is done according to the law of the place
where the will was made, or according to
Question: What are the requisites for the law of the place in which the testator
validity of documents incorporated by had his domicile at the time; and if the
reference? revocation takes place in this country, when
it is in accordance with the provisions of this
Answer: If a will, executed as required by
Code. (Article 829 of the Civil Code)
this Code, incorporates into itself by
reference any document or paper, such Question: What are the local or domestic
document or paper shall not be considered ways of revocation?
a part of the will unless the following
requisites are present: Answer: No will shall be revoked except in
the following cases:
(1) The document or paper referred to in the
will must be in existence at the time of the (1) By implication of law; or
execution of the will;
(2) By some will, codicil, or other writing
(2) The will must clearly describe and executed as provided in case of wills; or
identify the same, stating among other
things the number of pages thereof; (3) By burning, tearing, cancelling, or
obliterating the will with the intention of
(3) It must be identified by clear and revoking it, by the testator himself, or by
satisfactory proof as the document or paper some other person in his presence, and by
referred to therein; and his express direction. If burned, torn,
cancelled, or obliterated by some other
(4) It must be signed by the testator and the person, without the express direction of the
witnesses on each and every page, except testator, the will may still be established,
in case of voluminous books of account or and the estate distributed in accordance
inventories. (Article 82 of the Civil Code) therewith, if its contents, and due execution,
and the fact of its unauthorized destruction,
Question: Can a will be revoked?
cancellation, or obliteration are established

Answer: Yes. according to the Rules of Court. (Article 830

of the Civil Code)
A will may be revoked by the testator at any
time before his death. Any waiver or

20 | P a g e
Question: What is the rule on implied Succession 2016, Edgardo L. Paras, page
revocation? 148)

Answer: Subsequent wills which do not Question: How republication be made?

revoke the previous ones in an express
manner, annul only such dispositions in the Answer: The testator cannot republish,

prior wills as are inconsistent with or without reproducing in a subsequent will,

contrary to those contained in the later wills. the dispositions contained in a previous one

(Article 831 of the Civil Code) which is void as to its form. (Article 835 of
the Civil Code)
Question: What is the effect on revocation
if new will is inoperative? Question: What are the effects of
republication by virtue of a codicil?
Answer: A revocation made in a
subsequent will shall take effect, even if the Answer: The execution of a codicil referring

new will should become inoperative by to a previous will has the effect of

reason of the incapacity of the heirs, republishing the will as modified by the

devisees or legatees designated therein, or codicil. (Article 836 of the Civil Code)

by their renunciation. (Article 832 of the Civil

Question: What is the distinction between
Code)
republication and revival?

Question: What is the rule on revocation

Answer: Republication is an act of the
made under a mistake?
testator while revival is one that takes place

Answer A revocation of a will based on a by operation of law. (Wills and Succession

false cause or an illegal cause is null and 2016, Edgardo L. Paras, page 153)

void. (Article 833 of the Civil Code)

Allowance and disallowance of wills.

Question: What is the effect of revocation

Question: Define probate.
on the recognition of an illegitimate child?

Answer: Probate is the act of providing

Answer: The recognition of an illegitimate
before the competent court the due
child does not lose its legal effect, even
execution of a will by a person possessed of
though the will wherein it was made should
testamentary capacity, as well as approval
be revoked. (Article 834 of the Civil Code)
thereof by said court. (Wills and Succession

Republication and Revival of Wills 2016, Edgardo L. Paras, page 155)

Question: Define Republication. Question: What are the two kinds of

probate?
Answer: It is the process of re-establishing
a will, which has become useless because it Answer: 1. Probate during the testator’s

was void, or had been revoked. (Wills and lifetime.

21 | P a g e
2. Probate after the testator’s death. (Wills
and Succession 2016, Edgardo L. Paras, Question: What are the requisites of a valid
institution:
pages 155-156)

Question: What are the grounds for

disallowance of a will? Answer:

1. The will must be extrinsically valid

Answer: The will shall be disallowed in any
(testator must have testamentary
of the following cases: capacity to make the institution);
2. The institution must be intrinsically
(1) If the formalities required by law have valid (legitime must not be impaired,
not been complied with; the person instituted must be
identified or identifiable, and there is
no preterition);
(2) If the testator was insane, or otherwise 3. The institution must be effective (no
mentally incapable of making a will, at the repudiation by the heir; testator is
time of its execution; not predeceased by the heir)

(3) If it was executed through force or under

duress, or the influence of fear, or threats; Question: Can you institute a conceived
child?

(4) If it was procured by undue and Answer: Yes. Provided the provisions in
improper pressure and influence, on the Article 40 and 41 are satisfied. If the fetus
had an intra-uterine life of less than 7
part of the beneficiary or of some other
months, he is considered born if he lives
person; within 24 hours after complete delivery from
the maternal womb. In other words, fetus is
(5) If the signature of the testator was deemed to have a legal personality in so far
as succession is concerned.
procured by fraud;
Question: What are the 3 principles in the
institution of heirs?
(6) If the testator acted by mistake or did not
intend that the instrument he signed should Answer:
be his will at the time of affixing his 1. Equality: The heirs who are
signature thereto. (Article 839 of the Civil instituted without a designation of
Code) shares inherit in equal parts. It
applies only when the heirs are of
the same class or same juridical
B.2 Institution of Heirs condition and involves only the free
portion. As between a compulsory
heir and a voluntary heir and they
Question: What is institution of heirs? are instituted without any
Answer: It is an act by virtue of which a designation of shares, the legitime
testator designates in his will the person or must first be respected and the free
persons who are to succeed him in his portion shall then be equally divided
property and transmissible rights and between them.
obligations (NCC, Art. 840). It cannot be
allowed to affect the legitime of the 2. Individuality: Heirs collectively
compulsory heirs, and this is only applicable instituted are deemed individually
in testamentary succession. instituted unless contrary intent is
proven. Art. 847 of the NCC

22 | P a g e
 provides that when the testator Answer:
institutes some heirs individually and
others collectively as when he says, General Rule: The half and full blooded
“I designate my heirs A and B, and brothers and sister will get equal shares.
the children or C,” those collectively Exceptions:
designated shall be considered as 1. It is an intestate succession. For in
individually instituted, unless it an intestate succession, the full
clearly appears that the intention of brothers and sisters will get double
the testator was otherwise. the share of the half brothers and
sisters.
3. Simultaneity: When several heirs 2. Intention of the decedent. He wants
are instituted, they are instituted to really give a greater share to the
simultaneously and not full brothers and sisters.
successively, unless the contrary is
proved.
Question: If the testator instituted full
brother, half-brother, step-brother, brother in
Question: What is the effect of predecease
law and illegitimate brother. How divided?
of heir?
Answer:
Answer: Any heir who dies before the
The Full and half- blood brother and sister
testator or is incapacitated to succeed or
stated in Art. 848 also refers to step brother,
renounces the inheritance transmits no
brother in law and illegitimate brothers also.
rights of the testator to his own heirs. This is
This is with respect to testamentary
without prejudice to the rights of
succession. Thus, they receive equal
representation. (Art. 856)
shares. For legal succession, only the full
and half- brothers. The others are not legal
Question: What are the rules in the manner
heirs.
of distribution?

Answer:
Question: Define preterition.
1. Heirs instituted without designation
Answer: It is the omission in the testator’s
of shares shall inherit in equal parts
will of one, some or all of the compulsory
(Art. 846, CC).
heirs in the direct line, whether living at the
2. If the institution pertains to some
time of execution of the will or born after the
heirs individually and others
death of the testator (NCC, Art. 854).
collectively, the presumption is that
all are individually instituted (Art.
847, CC).
Question: What are the requisites of
3. If siblings are instituted (whether full
preterition?
or half-blood), the presumption is
that the inheritance is to be Answer:
distributed equally (Art. 848, CC).
This is different from the rules of 1. There must be a total omission of
distribution in intestate succession. one, some or all of the heir/s from
4. If parents and children are instituted, the inheritance.
they are presumed to have been 2. The omission must be that of a
instituted simultaneously and not compulsory heir.
successively (Art. 849, CC). 3. The compulsory heir omitted must
be of the direct line.
4. The omitted compulsory heir must
be living at the time of the testator’s
Question: State the rule in the institution of
death or must at least have been
brothers and sisters (half/full blood).
conceived before the testator’s
death.

23 | P a g e
 5. Nothing must have been received by to a declaration that nothing at all was
the heir by gratuitous title. written.

Question: What are the effects of Question: State the rule when heir
preterition? predecease, incapacitated, and renounce
the inheritance.

Answer:
Answer: A voluntary heir who dies before the testator
transmits nothing to his heirs. A compulsory
1. Preterition annuls the institution of heir who dies before the testator, a person
heirs; incapacitated to succeed, and one who
2. Devises and legacies are valid renounces the inheritance, shall transmit no
insofar as they are not inofficious; right to his own heirs except in cases
3. If omitted compulsory heir dies expressly provided for in this Code. (Art.
before the testator, the institution 856, Civil Code)
shall be effectual, without prejudice
to the right of representation.
Question: Distinguish preterition and
disinheritance.
Question: Who are the compulsory heirs in
Answer:
the direct line?

Answer: Preterition Disinheritance

Tacit deprivation Express deprivation
1. Legitimate children and descendants with of a compulsory of a compulsory
respect to their legitimate parents or heir of his heir of his legitime
legitime
ascendants;
May be voluntary Always voluntary
2. Legitimate parents of ascendants, with but the
respect to their legitimate children and presumption of
descendants; law is that it is
3. Illegitimate children; and involuntary
4. The father or mother of illegitimate Law presumes For some legal
children. there has been cause
merely oversight
or mistake on the
part of the
Question: What is the effect of preterition testator
on the will itself? Since preterition If the disinheritance
annuls the is valid, the
Answer: institution of compulsory heir
heirs, the omitted disinherited is
General Rule: The effect of annulling the heir gets not only totally excluded
institution of heirs will be, necessarily, the his legitime but from the
opening of a total intestacy except that also his share in inheritance. In case
proper legacies and devises must be the free portion of invalid
not disposed of disinheritance, the
respected. Here, the will is not abrogated.
by way of legacies compulsory heir is
and devises merely restored to
Exception: If the will contains a universal his legitime
institution of heirs to the entire inheritance of
the testator, the will is totally abrogated.

Reason: The nullification of such institution Question: Tanya died intestate. Her part in
of the universal heirs without any other the conjugal property was transmitted to her
testamentary disposition in the will amounts heirs—her husband Feds and their children
Samantha, Jillian, Louise and Francine. The

24 | P a g e
inheritance remained under a co-ownership legitime. It requires that the omission be
regime among the heirs until partition. The total which means that the heir did not also
heirs later on executed a deed of receive any legacy, devise, or advance on
extrajudicial settlement to the exclusion of his legitime. Under the Civil Code, the
Francine. Can Francine rescind the preterition of a compulsory heir in the direct
extrajudicial settlement among the other line shall annul the institution of heirs, but
heirs? the devises and legacies shall remain valid
insofar as the legitimes are not impaired.
Answer:
Consequently, if a will does not institute any
NO. The exclusion of Francine from the
devisee or legatee, the preterition of a
extrajudicial settlement has the effect of
compulsory heir in the direct line will result
preterition. This kind of preterition, however,
in total intestacy.
in the absence of proof of fraud and bad
faith, does not justify a collateral attack on In the case at bar, the decedent’s will
Transfer Certificate of Title. The relief evidently omitted Francisco Olondriz as an
instead rests on Art. 1104 of the NCC to the heir, legatee, or devisee when in fact he,
effect that where the preterition is not being an illegitimate son, is a compulsory
attended by bad faith and fraud, the partition heir in the direct line. Unless Morales could
shall not be rescinded but the preterited heir show otherwise, Francisco’s omission from
shall be paid the value of the share the will leads to the conclusion of his
pertaining to her (Non vs. Court of Appeals, preterition. No evidence, however, was
G.R. No. 137287 February 15, 2000). adduced that would show that donations
inter vivos and advances on his legitime
were received by Francisco. Furthermore,
Question: Alfonso Juan P. Olondriz, Sr. considering that subject will does not
(the decedent) died on June 9, 2003. contain specific legacy or device and that
Believing that the decedent died intestate, Francisco’s preterition annulled the
the heirs filed a petition for the partition of institution of heirs, the total abrogation of
the decedent’s estate and the appointment the will resulting in total intestacy happened.
of a special administrator. The RTC The decedent’s will, no matter how valid it
appointed Alfonso Juan O. Olondriz, Jr. one may appear extrinsically, is null and void.
of the heirs as special administrator. Iris (Morales v. Olandriz, G.R. No. 198994,
Morales, however, filed a separate petition Feb. 3, 2016)
with the RTC alleging that the decedent left
a will which omitted Francisco Javier Maria
Olondriz, an illegitimate son of the Question: Araceli Mayuga instituted a
decedent. She moved for the suspension petition for Cancellation and Recall of Free
the intestate proceedings in order to give Patent and Reconveyance against Antonio
way to the probate of the said will. This was Atienza, representing the heirs of Armando
opposed by the heirs and moved to dismiss Atienza, Benjamin Atienza, Jr., representing
the probate proceedings because Francisco the heirs of Benjamin Atienza, Sr. In her
was preterited from the will. The RTC Petition, Araceli, alleged, that she, Benjamin
suspended the intestate proceedings and A. Atienza, Sr. and Armando A. Atienza are
set the case or probate. It reasoned that the surviving legitimate, legal and forced
probate proceedings take precedence over heirs of the late Perfecto Atienza who died
intestate proceedings. Is there preterition? intestate and that he left estates to which
the three (3) compulsory/forced heirs are
Answer:
entitled to an equal share of 1/3 each; and
Yes. Preterition consists in the omission of a that through manipulation and
compulsory heir from the will, either misrepresentation with intent to defraud a
because he is not named or, although he is coheir, Antonio L. Atienza, son of the
named as a father, son, etc., he is neither deceased Armando Atienza, was able to
instituted as an heir nor assigned any part secure Free Patent. The CA held that the
of the estate without expressly being RTC erred in ordering the reconveyance of
disinherited – tacitly depriving the heir of his 1/3 of the subject properties to the Araceli

25 | P a g e
since she failed to establish her title and Question: What is substitution?
ownership over such portion. Is there
preterition? Answer: Substitution is the appointment of
another heir so that he may enter into the
Answer: inheritance in default of the heir originally
instituted. (Art. 857, Civil Code)
No. Araceli could not also claim preterition
by virtue of the Confirmation Affidavit on the
assumption that the disputed two lots Question: What is the purpose of
pertained to Perfecto's inheritance, he had substitution?
only three legal heirs and he left Araceli with
no share in the two lots. Article 854 of the Answer:
Civil Code partly provides: the preterition or
omission of one, some, or all of the 1. To prevent the property from falling
compulsory heirs in the direct line, whether into the ownership of people not
living at the time of the execution of the will desired by the testator.
or born after the death of the testator, shall 2. To prevent the effects of intestate
annul the institution of heir; but the devises succession
and legacies shall be valid insofar as they 3. To allow the testator greater
are not inofficious. Preterition consists in the freedom to help or reward those who
omission in the testator's will of a by reason of services rendered to
compulsory heir in the direct line or anyone the testator are more worthy of his
of them either because they are not affection and deserving of his bounty
mentioned therein or although mentioned that intestate heirs.
they are neither instituted as heir nor
expressly disinherited. The act of totally Question: May the heirs be allowed to be
depriving a compulsory heir of his legitime substituted for the deceased?
can take place either expressly or tacitly.
The express deprivation of the legitime Answer: Yes, without requiring the
constitutes disinheritance. appointment of an administrator or executor.

Although Araceli was a compulsory heir in

the direct descending line, she could not Question: Substitution of heirs may either
have been preterited. Firstly, Perfecto left be:
no will. As contemplated in Article 854, the Answer:
presence of a will is necessary. Secondly,
before his death, Perfecto had properties in 1. Simple or common – sustitucion
Limon, Rizal which was almost 50 hectares, vulgar
part of which was developed for residential 2. Brief or compendious – substitution
and agricultural purposes, and in Odiongan. brevilocua or compendiosa
Araceli could not have been totally excluded 3. Reciprocal – sustitucion reciproca
in the inheritance of Perfecto even if she 4. Fideicommissary – sustitucion
was not allegedly given any share in the fideicomisoria
disputed two lots. If Araceli's share in the
inheritance of Perfecto as claimed by her
was indeed impaired, she could have Question: What is simple or common
instituted an action for partition or a substitution?
settlement of estate proceedings instead of
Answer: The testator may designate one or
her complaint for cancellation of free patent
more persons to substitute the heir or heirs
and reconveyance. (Mayuga v. Atienza,
instituted in case such heir or heirs should
G.R. No. 208197, January 10, 2018)
die before him, or should not wish, or should
be incapacitated to accept the inheritance.
A simple substitution without a statement of
B.3 Substitution of Heirs the cases to which it refers, shall comprise
the three mentioned in the preceding

26 | P a g e
paragraph, unless the testator has
otherwise provided. (Art. 859, Civil Code)
Question: What are the instances when the
substitution is extinguished?
Where the second heir takes the inheritance
in default of the first heir by reason of: Answer:
1. Predecease
2. Renunciation or repudiation 1. When the substitute predeceases
3. Incapacity the testator
2. When the substitute is incapacitated
Example: A instituted B as heir, and stated 3. When the substitute renounces the
in his will that in case B dies ahead of him, inheritance
another person, C, will substitute B. 4. When the institution of heir is
annulled (i.e. preterition)
Important: The designation must always be 5. When the institution or the
express. substitution is revoked by the
testator
6. When a will is void or disallowed or
Question: Illustrative example: Tanya revoked
instituted Feds and appointed Bads as
substitute. Tanya did not state the causes
Question: Illustrative problem: Tanya made
for which the substitution may be made.
a will instituting Feds as heir, and Bads as
What should these causes be?
substitute. In 1998, Bads died, leaving
Shiela, his child. In 2003, Tanya died but
Answer: Any of the three causes. In other Feds is incapacitated to inherit. Is Shiela
words, if Feds predeceases, renounces, or going to inherit from Tanya?
is incapacitated to receive the inheritance,
Bads will be the substitute heir. Answer: No, because Bads may be
considered as a voluntary heir, and since he
Question: Illustrative example: Tanya made predeceased the testator, he transmits
a will stating that should she die before nothing to his own heirs. In the absence of
Feds, her relatives Shiela and Bads would any other provision in the will, legal
inherit certain properties. Further, should succession takes place.
either Shiela or Bads die before Tanya, the
survivor (between Shiela and Bads) would Question: Illustrative problem: Tanya made
inherit all of said properties. However, Feds a will instituting Feds as heir, and Bads as
died before Tanya. Would Shiela and Bads substitute. Tanya died on January 5, 2004.
get anything? Feds renounced his share two dates later.
Bads died the day following the renunciation
Answer: No, Shiela and Bads would not get by Feds. Can Shiela, the child of Bads get
anything because their designation was anything from Tanya’s estate?
conditional, namely, that Tanya should die
before Feds. Answer: Yes, because this is not a case of
predecease on the part of Bads, who after
Question: Illustrative example: Tanya all survived the testator, and immediately
instituted Feds and ordered that the children inherited from Tanya upon Feds’
of Feds will substitute him should Feds die renunciation of his inheritance. Thus, Shiela
after Tanya. Is this a case of simple can share in Tanya’s estate, not as an heir
substitution? of Tanya, but merely to get the share
already inherited by her father, Bads.
Answer: No, this is not a case of simple
substitution. In simple substitution, the heir Question: What is Brief or Compendious
dies before, and not after the testator’s Substitution?
death.

27 | P a g e
Answer: Two or more persons may be Question: Who are the parties to a
substituted for one; and one person for two Fideicommissary Substitution?
or more heirs. (Art. 860)
Answer:
1. First heir or fiduciary – one who has
Brief substitution – when two or more take
the obligation of preserving the
the place of one.
property and transmitting the same
Example: A is an instituted heir, and B and
to the second heir.
C are his substitutes.
2. Second heir or fideicommissary –
one who eventually receives the
Compendious substitution – when one
property.
takes the place of two or more.
3. Testator or fideicomitente
Example: A and B are instituted heirs, and
C is the substitute.
Example: Tanya institutes Feds as first heir.
The will states that Feds should preserve
Question: What is Reciprocal Substitution? and transmit later on the estate to Bads,
who is Feds’ son. (It is clear here that upon
Answer: If heirs instituted in unequal
Tanya’s death, Feds will inherit. Later on, he
shares should be reciprocally substituted,
will just have to deliver to Bads the property
the substitute shall acquire the share of the
who has also inherited as second heir)
heir who dies, renounces, or is
incapacitated, unless it clearly appears that
Important: In fideicommissary substitution,
the intention of the testator was otherwise. If
both heirs inherit the property or right to it
there are more than one substitute, they
simultaneously, although the enjoyment and
shall have the same share in the
possession are successive.
substitution as in the institution. (Art. 861,
Question: What are the requisites and
Civil Code)
limitations of Fideicommissary Substitution?
The essence of reciprocal substitution is Answer:
that the instituted heirs are also made the 1. There must be a first heir called
substitutes of each other. primarily to the enjoyment of the
property
2. There must be an obligation clearly
imposed to preserve and transmit to a
Question: What is Fideicommissary third person the whole or part of the
Substitution? inheritance
3. There must be a second heir
Answer: A fideicommissary substitution by
4. The first and second heirs must be only
virtue of which the fiduciary or first heir
one degree apart
instituted is entrusted with the obligation to
5. Both the first and the second heirs must
preserve and to transmit to a second heir
be alive or at least conceived at the time
the whole or part of the inheritance, shall be
of the testator’s death
valid and shall take effect, provided such
substitution does not go beyond one degree
Additionally, it must be made in an express
from the heir originally instituted, and
manner, must not burden the legitime and
provided further, that the fiduciary or first
must not be conditional.
heir and the second heir are living at the
time of the death of the testator. (Art. 863)
Question: What are the instances where
Otherwise referred to as indirect substation. there is no fideicommissary substitution?
It is that by virtue of which a testator
Answer:
institutes a first heir and charges him to
preserve and transmit the whole or part of
1. If a mere advice, or request is made
the inheritance later on to a second heir.
instead of an obligation. In such a case,
there will be a simple institution of the

28 | P a g e
 first heir, and the second heir gets Answer: The estate shall belong to Feds’
nothing. children, and not to Feds’ estate, as all
2. If the obligation is conditional requirements for a fideicommissary
3. Where there is no obligation to substitution are present. Consequently, the
preserve creditors cannot go against the property.

The requisites for are present because:

Question: Illustrative problem: Tanya
1. The first and second heirs exist, in
instituted Feds as first heir, and Bads
the proper relationship, and were
(Tanya’s brother), as second heir in what he
both alive at the testatrix’s death.
desired to be a fideicommissary
2. The phrase “shall pass unimpaired”
substitution. When Tanya died, Feds god
and the phrase “should never pass
the property. Later, Feds died. Will Bads get
out of the hands,” show an obligation
the property?
to preserve and transmit.
3. The phrase “should Feds die after
Answer:
Tanya” anticipates a situation where
No. The heirs of Feds will get the property
a first heir, Carmen, will later die
because the fideicommissary substitution
after having enjoyed the inheritance
was not valid, Bads being a relative of the
(G. de Perez v. Garchitorena G.R.
second degree of Feds. It does not matter
No. L-31703, 1930)
that there was only one transfer here.

Question: Tanya instituted Feds as heir to

Question: Illustrative problem: Tanya receive a parcel of land, with the condition
instituted B as first her and Bads (Tanya’s that he must not alienate it but preserve it
son) as second heir, and Shiela (Bads’ instead for his children. However, Feds sold
brother) as third heir in a fideicommissary the property to Bads, without the latter
substitution. Is this valid? knowing of the condition. When Feds died,
his children brought an action to recover the
Answer: It is valid insofar as Feds will get land from Bads. Will it prosper?
and then Bads. But on Bads’ death, Shiela Answer:
does not get the property because Shiela is Yes, in view of the testamentary reservation
not one degree apart from Feds. In fact, in favor of the children. This is true even if
Shiela may not even be related by blood to Bads was in good faith as he merely
Feds. acquired Feds’ right. Thus, applying the
principle of caveat emptor (let the buyer
Question: Tanya instituted Feds as her heir beware), the sale to Bads was valid, subject
with the following stipulations in the will: to the testamentary reservation. (Moralejo
1. Should Feds die, the whole estate v. Maquiniano)
should pass unimpaired to Feds’
children
2. The estate should never pass out of Question: What is the effect of nullity of
the hands of Feds and his children as fideicommissary substitution?
long as this was legally possible Answer: The nullity of the fideicommissary
3. Should Feds die after Tanya while substitution does not prejudice the validity of
Feds’ children are still minors, the the institution of the heirs first designated;
estate would be administered by the the fideicommissary clause shall simply be
executor. considered as not written. (Art. 868, Civil
Code)
Tanya eventually died. To whom shall the
estate belong?

29 | P a g e
Question: What is the remedy of the 1. The heir, devisee or legatee
fideicommissary to protect himself against acquires No rights until the condition
alienation to an innocent third person? is fulfilled;
2. If he Dies before the condition is
Answer: If the first heir was able to register
fulfilled, he transmits no rights to his
the property in his name, the
heirs, even though he survived the
fideicommissary should annotate his claim
testator;
on the land on the title to protect himself
3. Once the condition is Fulfilled, its
against any alienation in favor of innocent
effects retroact to the moment of the
third parties.
death of the testator;
4. If the suspensive condition is Not
When the property passes to the
fulfilled, the estate will be placed
fideicommissary, there is no more
under administration until (a) the
prohibition to alienate.
condition is fulfilled, in which case
the estate should be given to the
If the testator gives the usufruct to different
instituted heir; or (b) it becomes
persons successively, the provisions on
obvious that it cannot be fulfilled, the
fideicommissary substitution also apply.
estate should be given to the
intestate heirs.

B.4. Conditional Testamentary

Dispositions and Testamentary Question: What is the effect of an
Dispositions with a Term impossible condition on a testamentary
disposition?

Question: What is a condition? Answer: Impossible conditions and those

contrary to law or good customs shall be
Answer: A condition is a future or uncertain
considered as not imposed and shall, in no
event or past event unknown to the parties
manner prejudice the heir, even if the
upon which the performance of an
testator should otherwise provide (Article
obligation depends. It is not presumed and
873, NCC).
must be clearly expressed in the will.

Question: Can a condition prohibiting a

Question: What are the kinds of condition?
person from marrying be validly placed in a
Answer: There are two kinds of conditions. will?

A resolutory condition is one in which a Answer: An absolute condition not to

disposition becomes effective upon the contract a first or subsequent marriage is
death of the testator but is extinguished not a valid condition except if it is imposed
upon the happening of the condition. on the widow or widower by the deceased
spouse or the latter’s ascendants or
On the other hand, a suspensive condition descendants.
is one which the effectivity of the disposition
is suspended until the fulfillment of the
condition.
Question: What is disposition captatoria?

Answer: It is a disposition made upon the

Question: What are the effects of a condition that the heir shall make some
suspensive condition in a will? provision in his will in favor of the testator or
of any other person. It is void because it is
Answer: (NoDFuN) incompatible with good faith and the nature
of testaments.

30 | P a g e
 2. Negative potestative condition, in
which an heir must give security that
Question: What is a term? he will not do or give that which has
been prohibited by the testator;
Answer: A term is any future and certain
3. Mode, which has been left in this
event upon the arrival of which the validity
manner, may be claimed at once
or efficacy of a testamentary disposition
provided that the heirs provide the
subject to it depends.
security.

Question: If a disposition is subject to a Question: Alicia is the wife of Bartolome.

term, what must the heirs do in order to Bartolome, a millionare who is diagnosed
enjoy the possession of the property? with liver cancer, called his lawyer in order
to make his last will and testament. In the
Answer: If the disposition is subject to a said will, he granted his children Popo, Jolly
suspensive term, the legal heirs can enjoy and Harry some of his properties while he
possession of the property until the stipulated that Alicia be granted her share
expiration of the period but they must and some additional properties abroad.
caucion muciana in order to protect the right
of an instituted heir. Sensing that his children’s future might be
at risk if Alicia decides to marry for the
Meanwhile, if the disposition is subject to a second time, Bart placed a disposition in his
resolutory term, the legal heirs can enjoy will stating that the foreign properties will not
possession of the property but when the be granted to Alicia should see contract a
term arrives, he must give it to the instituted subsequent marriage after his death.
heirs.
One year after Bart’s death, Alicia married
their chauffeur, Nicolo. She now argues that
the disposition barring her from contracting
Question: What is caucion muciana?
a subsequent marriage is null and void
Answer: It is a security or bond required because it violates her freedom as a
from the conditional heir in order to secure woman, and it binds her to a non-existing
the rights of those who would succeed to marriage.
the property upon violation of the condition.
Is the disposition valid?

Answer: Yes, the disposition is valid.

Question: What is modal disposition?
Generally, dispositions on absolute
Answer: A “mode” imposes an obligation prohibitions on marriage are invalid.
upon the heir, devisee or legatee but it does However, the law provides an accepted
not affect the efficacy of his rights to the exception to relative prohibitions for a
succession. person to contract a subsequent marriage if
it is imposed by the deceased spouse.
(Article 874, NCC)

Question: When is the filing of caucion

muciana needed?
Question: In the same problem, suppose
Answer: The filing of caucion muciana is that Alicia claimed her portion of the estate
needed when there is a: less than a year of Bart’s death, prior to her
marrying Niciolo. Can she claim her share in
1. Suspensive term, which the legal
the estate at that time and how?
heir shall be considered as called to
the succession until the arrival of the Answer: Yes, Alicia can claim her share.
period;

31 | P a g e
Upon Bart’s death, Alicia can demand Art. 887 of the NCC provides the following
immediately for the conveyance of her as compulsory heirs:
share in the estate. However, since the
(1) Legitimate children and descendants,
condition both negative and potestative, she
with respect to their legitimate parents and
must file caucion muciana. When Alicia
descendants;
marries Nicolo, she is obliged to return what
she has received including its fruits and (2) In default of the foregoing, legitimate
interests. (Article 879, 882, NCC) parents and descendants, with respect to
their legitimate children and descendants;

(3) The widow or widowed;

Question: As a father who loved to joke
around his children, Patricio stipulated in his (4) Acknowledged natural children, and
will the following dispositions: natural children by legal fiction;

“To my son, Luis Mario, I give you my (5) Other illegitimate children referred to in
plantation in Rio Verde provided that you Article 287.
can make the moon glow red 66 days after
my burial;

To my daughter, Eduarda, I give you my

company shares in the Feliz Azucarera
provided that you can fulfill your dream of
walking up the surface of the water before B.6 Disinheritance
the first anniversary of my death.”
Question:
Eva, Patricio’s second wife and stepmother
of Luis Mario and Eduarda, firmly claimed What are the requisites for disinheritance?
sole ownership of the entire estate of
Answer:
Patricio after the two children failed to
comply with the conditions in the will. The requisites for disinheritance are the
following:
Luis Mario and Eduarda challenges Eva in
court and sought to claim their shares since 1. The heir to be disinherited is a
the conditions imposed are not achievable. compulsory heir;
2. The heir is identified in the will with
Can Eva own all properties in the estate of certainty;
Patricio? 3. The disinheritance must be for a
Answer: No, Eva cannot own all the valid cause specified by law (Articles
properties in the estate. 919, 920, 921);

4. The disinheritance of the heir is

An impossible condition in a testamentary
effected through a probated will;
disposition shall be considered as not
imposed and shall, in no manner, prejudice 5. The disinheritance is expressly
the heir, legatee or devisee. (Article 873, stated in the will;
NCC) 6. The cause for the disinheritance is
true and certain;
7. It must be a total disinheritance.

B.5. Legitime Question:

What are the grounds for disinheriting a

Question: child or descendant?
Who are considered as compulsory heirs? Answer:
Answer: The following shall be sufficient causes for
the disinheritance of children and

32 | P a g e
descendants, legitimate as well as more, if the accusation has been found to
illegitimate: be false;

[Link] a child or descendant has been

found guilty of an attempt against the life of 4. When the parent or ascendant has been
the testator, his or her .spouse, convicted of adultery or concubinage with
descendants, or ascendants; the spouse of the testator;

2. When a child or descendant has accused

5. When the parent or ascendant by fraud,
the testator of a crime for which the law
violence, intimidation, or undue influence
prescribes imprisonment for six years or
causes the testator to make a will or to
more, if the accusation has been found
change one already made;
groundless;

3. When a child or descendant has been 6. The loss of parental authority for causes
convicted of adultery or concubinage with specified in this Code;
the spouse of the testator;
7. The refusal to support the children or
4. When a child or descendant by fraud, descendants without justifiable cause;
violence, intimidation, or undue influence
causes the testator to make a will or to
change one already made; 8. An attempt by one of the parents against
the life of the other, unless there has been a
5. A refusal without justifiable cause to reconciliation between them.
support the parent or ascendant who
disinherits such child or descendant; Question:

6. Maltreatment of the testator by word or What are the grounds for disinheriting a
deed, by the child or descendant; spouse?

7. When a child or descendant leads a Answer:

dishonorable or disgraceful life;
The following shall be sufficient causes for
disinheriting a spouse:
8. Conviction of a crime which carries with it
the penalty of civil interdiction. 1. When the spouse has been convicted of
an attempt against the life of the testator,
Question:
his or her descendants, or ascendants;
What are the grounds for disinheriting a
2. When the spouse has accused the
parent or ascendant?
testator of a crime for which the law
Answer: prescribes imprisonment of six years or
more, and the accusation has been found to
The following shall be sufficient causes for be false;
the disinheritance of parents or ascendants,
whether legitimate or illegitimate: 3. When the spouse by fraud, violence,
intimidation, or undue influence cause the
1. When the parents have abandoned their testator to make a will or to change one
children or induced their daughters to live a already made;
corrupt or immoral life, or attempted against
their virtue; 4. When the spouse has given cause for
legal separation;
2. When the parent or ascendant has been
convicted of an attempt against the life of 5. When the spouse has given grounds for
the testator, his or her spouse, the loss of parental authority;
descendants, or ascendants;

3.. When the parent or ascendant has 6. Unjustifiable refusal to support the
accused the testator of a crime for which the children or the other spouse.
law prescribes imprisonment for six years or
Question:

33 | P a g e
When does preterition constitute as 1. Voluntary Heirs are those called
disinheritance? upon to succeed by virtue of the will
of a person expressed in his will.
Answer:
2. Legal or intestate are those called to
Preterition constitutes disinheritance when succeed by operation of law.
there is a total omission or express
deprivation of legitime. There is total 3. Compulsory Heirs are those
omission when the omitted compulsory heir enumerated under Article 887.
receives nothing under the will, whether as Question:
heir, legatee or devisee, has received
nothing by way of donation inter vivos or State the classes of compulsory heirs.
propter nuptias, and will receive nothing by Answer:
way of intestate succession. Furthermore,
preterition consists in the omission in the 1. Primary – Legitimate children and
testator's will of a compulsory heir in the descendants, which excludes
direct line or anyone of them either because legitimate parents and ascendants
they are not mentioned therein or although
mentioned they are neither instituted as heir 2. Secondary – Legitimate/Illegitimate
nor expressly disinherited. The act of totally parents, and legitimate (NOT
depriving a compulsory heir of his legitime illegitimate) ascendants, which only
can take place either expressly or tacitly. inherit in default of primary heirs
The tacit deprivation of the same is called
preterition (Mayuga v. Atienza, G.R. No. 3. Concurring – Illegitimate children
208197, [January 10, 2018]) and surviving spouse, which concurs
with primary or secondary heirs
Question:
Question:
Bishop Sofronio Hacbang died leaving
several properties behind. During the Antonio Ching left properties. Ramon Ching,
probate of his will, he left 1/ 2 of his property was alleged as responsible for the killing of
to his parents and the other part to his sister his father Antonio Ching and
Dolores Hacbang Alo. The other siblings of misrepresented himself as Antonio’s son
Bishop Sofronio contested that they were when in fact, he was adopted and his birth
denied inheritance and such intestate certificate was merely simulated.
succession will apply. Is the action proper? Petitioners, allegedly the children of Antonio
with his common-law wife, sought the
Answer:
disinheritance of Ramon due to the killing. Is
No. Bishop Sofronio was free to dispose of the petition for disinheritance proper?
his estate without prejudice to the legitimes
Answer:
of his compulsory heirs. Bishop Sofronio's
only compulsory heirs were his parents. No. Under Article 916 of the NCC,
Their legitime was one-half of Bishop disinheritance can be effected only through
Sofronio's estate. Considering that Bishop a will wherein the legal cause therefore shall
Sofronio gave his parents half of his estate, be specified. The SC held that while the
then he was free to dispose of the free respondents in their Complaint and
portion of his estate in favor of his sister, Amended Complaint sought the
Dolores Hacbang Alo. Thus, his will was disinheritance of Ramon, no will or any
intrinsically valid. (Hacbang v. Alo, G.R. No. instrument supposedly effecting the
191031, [October 5, 2015], 770 PHIL 543- disposition of Antonio's estate was ever
556) mentioned. Hence, despite the prayer for
Ramon's disinheritance will not prosper.
Question:
(Ching v. Rodriguez, G.R. No. 192828,
State the classes of heirs. [November 28, 2011], 677 PHIL 484-499)

Answer:

34 | P a g e
  If there is none, it
will be performed
B.7 Legacies and Devises by the heirs
themselves
Question:

Distinguish a legatee from devisee and  If the person who is charged with
legacy and devise. the obligation is a compulsory
heir, he cannot be held liable
Answer : beyond the amount of the
disposable portion given him.
Legatee is a person to whom a gift of
personal property is given by virtue of will
 If the person charged with the
while a Devisee is a person to whom a gift
obligation is a voluntary heir,
of real property is given by virtue of a will.
legatee or devisee, his liability
shall extend to the entire share,
On the other hand, Legacy is a
legacy or devise received by him
testamentary disposition by virtue of which a
person is called by the testator to inherit an
 Should the testator not charge
individual item of personal property while a
anyone in particular, all shall be
Devise is a testamentary disposition by
liable in the same proportion in
virtue of which a person is called by the
which they may inherit
testator to inherit an individual item of real
property.
 Second paragraph of article 926
Question:
is applicable only when there is
no administration proceeding for
Who may be charge by the testator with the
the settlement of the decedent’s
payment or delivery of a legacy or devise
estate
and what is the effect if the will is silent on
who shall pay the same?

Question:
Answer :

What is the effect if the testator, heir or

The following may be expressly charged by
legatee owns only a part of, or an interest in
the testator with the payment or delivery of
the thing bequeathed?
a legacy or devise:
1) Any compulsory heir
Answer :
2) Any voluntary heir
3) Any legatee or devisee
The presumption is that the testator desires
4) The estate represented by
to bequeath or devise only that which
the executor or administrator
belongs to him; hence if he bequeaths or
devises a thing which belongs partly to him
If the will is silent with regard to the person
and partly to a third person, the devise or
who shall pay or deliver the devise or
legacy shall be understood limited only to
legacy, it is clear that the obligation
the part or interest belonging to him- same
constitutes a charge or burden upon the
rule when the thing belongs partly to the
estate of the testator.
heir, devisee or legatee.
 If there is an The exception is when the testator
administration expressly declares that he bequeaths or
proceeding, the devises the thing in its entirety. Before the
obligation will be exception can be applied, there must be:
performed by the
executor or (a) an express declaration to that effect
administrator; appearing in the will itself; and

35 | P a g e
(b) knowledge on the part of the testator
that the thing belongs partly to a third When the thing is adjudicated to the other
person. Such knowledge may be proved owner, the rules applicable shall depend
either from the context of the will itself or upon whether or not the testator has
from extrinsic evidence. expressly declared that he bequeaths or
devises the property in its entirety.

 If he has not expressly

Question: declared that he bequeaths
or devises the thing in its
What is the effect if the thing is physically entirety, the legacy or devise
capable of division and physically incapable shall be without effect
of division? applying No.2 of 957

Answer :  If he has expressly declared

that he bequeaths or devises
If the thing is physically capable of division, the property in its entirety
the rules stated are still applicable. On the and the property
other hand, if the thing is physically subsequently is adjudicated
indivisible or inconvenient of division, the to the other owner, the
rules applicable shall depend upon whether legacy or devise shall be
the thing is finally adjudicated to the testator without effect only with
or to the other owner applying articles 929 respect to what had formerly
and 930. belonged to him applying
no.2 of 957; but the other
part is still effective applying
Question: 929 and 930.

What is the effect if what is bequeathed or Question:

devised is that part which belonged to the
testator before partition?
What is the determinant factor in the validity
of a legacy or devise of a thing belonging to
Answer :
another?
If the thing is adjudicated to the testator,
Answer :
there is no question that the same rules
apply. If what is bequeathed or devised is
The all-important factor in the determination
that part which belonged to the testator
of the validity of a legacy or devise of a
before partition, the legacy or devise
thing belonging to another is the knowledge
subsists without any change.
of the testator that the thing bequeathed or
If what is devised or bequeathed is the devised belonged to another in at the time
entire property in accordance with the of the execution of the will.
exception in 929, the whole property shall
pass in its entirety to the devisee or legatee If the testator erroneously believed that the
applying 929 and 930. thing belonged to him, the legacy or devise
is void.

 There is only one exception

Question: to this, and that is when he
subsequently acquires the
What is the effect when the thing is thing by whatever title.
adjudicated to the owner?
 If the testator knew the thing
Answer : belonged to another, the

36 | P a g e
 legacy or devise is valid  The rule applies even though
because it is presumed that the legatee or devisee who is
his intention is that such supposed to be favored may
thing must be acquired for have subsequently alienated
the benefit of the legatee or the thing.
devisee.
 But if another person has an
interest in thing and the
testator expressly orders that
Question:
the thing be freed from such
What are the instances when the testator interest or encumbrance, the
may be considered to have disposed of the legacy or devise shall be
thing with knowledge that it belongs to valid to that extent.
another?

Answer :
Question:
There are two (2) instances when the What is the effect if the thing belonged to a
testator may be considered to have third person at the time of the execution of
disposed of the thing with knowledge that it the will?
belongs to another, to wit:
Answer :
 Where he subsequently
acquires the thing from the
 If the testator erroneously
owner by whatever title; and
believed that the thing
pertained to him- legacy or
 Where he expressly orders in
devise is void; subsequent
his will that the thing shall be
acquisition of the thing by the
acquired in order that it be
legatee or devisee favored
given to the legatee or
devisee. cannot have any effect upon
such legacy or devise;
 If the owner of the
thing refuses to
 But if he had knowledge that
alienate the same or
the thing belonged to a 3rd
demands an
person, 933 par. 2 shall
excessive price
apply.
therefor, the heir or
the estate shall be
obliged to give the
just value of the thing. Question:

What is the effect if the thing belonged to

the beneficiary at the time of the execution
Question: of the will?
What is the effect on the legacy or devise in
Answer :
favor of the person to whom the thing
bequeathed or devised belongs? If the thing belonged to the beneficiary at
the time of the execution of the will
Answer : paragraph 2 of 933 shall not apply. This is
what is contemplated by the first paragraph
Legacy or devise in favor of the person to of Article 933.
whom the thing bequeathed or devised
belongs shall be ineffective.

Question:

37 | P a g e
Who are parties to a legacy of credit? General Rule is that a legacy or devise
made to a creditor shall not be applied to his
Answer : credit.

The parties to a legacy of credit are as Exception is when the testator expressly
follows: declares otherwise. If the testator expressly
declares that the legacy or devise shall be
 Testator-creditor, legatee, applied to the credit, the creditor shall have
and debtor the right to collect the excess, if any, of the
 In this type of legacy, there is credit or of the legacy or devise.
a novation of the credit by
subrogating the legatee in
the rights of the original
creditor Question:

What is an alternative devise or legacy and

what are its feature?
Question:
Answer:
What are the kinds of Legacy of remission
of debts? Alternative devises or legacies are those
where the testator bequeaths or devises two
Answer : (2) or more things, but which can be
complied with by the delivery of only one (1)
 Specific legacy for the of them to the beneficiary.
remission of a definite debt
(Art. 935)
 Generic legacy for the
remission of all debts of the The feature of an alternative devises or
legatee existing at the time of legacies are as follows:
the execution of the will (Art.  The most peculiar feature of
937) this kind of legacy or devise
 Legacy to the debtor of the is that a choice will have to
thing pledged by him (Art. be made upon the death of
936, par 2) the testator before it can be
complied with;
Whether the legacy is specific or generic,
the rule that the legacy shall comprise only  The testator may designate
what is due the testator at the time of his any one of the heirs,
death shall apply. legatees or devisees or even
the beneficiary himself to
The legacy shall be considered revoked if make the choice; and
the testator, after having made it, shall bring
an action against the debtor for the payment  If no particular person is
of his debt- this must be construed to mean designated to make the
a judicial action; an extrajudicial demand choice, the executor or
shall not be sufficient to revoke the legacy. administrator of the estate
shall make the choice.

Question:
Question:
Should a legacy or devise made to a
creditor be applied to his credit? What is a generic legacy and a generic
devise? Are they valid?
Answer :

38 | P a g e
Answer: (4) Legacies for education;

A generic legacy is a legacy consisting of (5) Legacies or devises of a specific,

personal property designated merely by its determinate thing which forms a part
class or genus while a generic devise is a of the estate; and
devise consisting of real property
designated merely by its class or genus. (6) All others pro rata.
They are valid only if there be immovable
property of its kind in the estate because
unlike personal property, there is no such
Question:
thing as a predetermined species with
respect to real or immovable property, since What is the difference of the order of
its individualization depends upon the will of payment in Article 950 and the one provided
man. for by Article 911?

Answer:
Question:
The order of payment in Art. 950 is different
What happens to the rights of the legatee or from that which is provided for by Art. 911.
devisee in case of a suspensive term or a
suspensive condition?  Art. 911 applies when the
reduction is necessary to
Answer: preserve the legitime of
compulsory heirs or when
In case of a suspensive term, rights of the even though the legitime has
legatee or devisee are transmitted from the been preserved, there are
moment of the death of the testator. donations inter vivos.
In case of a suspensive condition, what is
acquired by the legatee or devisee is merely
a hope or expectancy; if he dies before the
 Article 950 applies when
condition is fulfilled, he transmits nothing to
there are no compulsory
his heirs.
heirs and the entire estate is
distributed as legacies and
devises or when the legitime
Question: has already been provided
for and there are no
What is the order of payment should the
donations inter vivos.
estate be insufficient to cover all the
legacies or devises?

Answer:
Question:

If the estate should not be sufficient to cover What are ineffective legacies or devises and
all the legacies or devises, their payment what is the effect?
shall be made in the following order:
Answer:
(1) Remuneratory legacies or
devises; Ineffective legacies or devises are as
follows:
(2) Legacies or devises declared by
the testator to be preferential;  Devisee or legatee is
incapacitated to succeed
(3) Legacies for support; (Art.1024 to 1040)

39 | P a g e
  In case of repudiation (Art. Answer:
1041 to 1057)
 Transformation, alienation, 1. Revocation by Implication of Law:
destruction of the thing or they take effect by immediately by
non-fulfillment of a operation of law;
suspensive condition
2. Revocation by transformation: the
In all of the abovementioned cases, the transformation must be both as to
legacy or devise shall be merged with the form and denomination. The form
mass of the hereditary estate except in refers to the external appearance
cases of accretion or substitution. while denomination refers to the
name by which the thing is known.
The transformation of the thing must
have been made by the testator
Question: himself or by some other person
acting for him as agent.
When is a legacy or devise be without
effect? 3. Revocation by alienation: if only a
part of the thing is alienated, the
Answer: legacy or devise shall take effect
with respect to the part untouched
(1) If the testator transforms the thing
hence here would only be partial
bequeathed in such a manner that it does
revocation
not retain either the form or the
denomination it had;
 There can be no revival of
the legacy or devise once
(2) If the testator by any title or for any
revoked impliedly by
cause alienates the thing bequeathed or
alienation
any part thereof, it being understood that in
 The rule is applicable even if
the latter case the legacy or devise shall be
the thing alienated should
without effect only with respect to the part
again belong to the testator
thus alienated. If after the alienation the
by reason of the nullity of the
thing should again belong to the testator,
contract
even if it be by reason of nullity of the
 But if the contract is void due
contract, the legacy or devise shall not
to lack of consent or vitiated
thereafter be valid, unless the reacquisition
consent of the testator, there
shall have been effected by virtue of the
is no revocation because
exercise of the right of repurchase;
there was no intention on the
part of the testator to alienate
(3) If the thing bequeathed is totally lost
 One exception is if the
during the lifetime of the testator, or after his
reacquisition by the testator
death without the heir's fault. Nevertheless,
is by virtue of the exercise of
the person obliged to pay the legacy or
the right of repurchase
devise shall be liable for eviction if the thing
bequeathed should not have been
4. Revocation by loss or destruction: if
determinate as to its kind, in accordance
the thing bequeathed or devised is
with the provisions of Article 928.
lost during the lifetime of the testator
or after his death without the fault of
the heir, the legacy or devise can no
longer take effect.
Question:

What are the types of revocation of a legacy  if the thing is determinate,

or devise? there is no liability on the part
of the heir.

40 | P a g e
  if the thing is indeterminate, Question: What is the principle of
Art. 928 shall apply. proximity?

Answer: The principle of proximity merely

refers to the rule by virtue of which the
relatives of the decedent nearest in degree
C. LEGAL OR INTESTATE SUCCESSION shall exclude the more remote ones.
Relatives in the same degree inherit in
C.1 General Provisions, Relationship and equal shares.
Right of Representation

Question: What is intestate succession? Question: Is there an exception to the

principle of proximity?
Answer: Intestate or legal succession is
that which effected by operation of law in Answer: Yes, that is the right of
default of a will by the decedent. representation.

In right of representation, the representative

is raised by legal fiction to the place and
Question: When does intestate succession
degree of the person represented so that he
takes place?
acquires the rights which the latter would
Answer: Legal or intestate succession have if he were living or if he could have
takes place when: inherited.

1. There is no will, the will is void, or

the will is revoked;
Question: What is meant by degree and
2. The will does not dispose all the
line?
property of the testator / partial
intestacy; Answer: Proximity of relationship is
3. The suspensive condition attached determined by the number of generations.
to the inheritance is not fulfilled; Each generation forms a degree.
4. The heir predeceased the testator or
repudiates the inheritance and no On the other hand, line refers to a series of
substitution and no right of accretion degrees which may be either direct or
take place; collateral.
5. The heir instituted is incapacitated to
succeed.
Question: What are the different kinds of
line?
Question: What are the other causes for
Answer: A direct line is that constituted by
intestacy?
the series of degrees among ascendants
Answer: Intestacy also arises when: and descendants, while a collateral line is
that constituted by the series of degrees
1. There is preterition; among persons who are not ascendants
2. The resolutory term or period has and descendants but who come from a
arrived; common ancestor.
3. The resolutory condition on the
inheritance has been fulfilled; The direct line may be either descending
4. There is non-compliance or which unites the head of the family with
impossibility of complying with the those who descend from him, or ascending
will of the testator. where it binds a person from those whom
he descends.

41 | P a g e
Question: How is full blood and half blood 1. In case a legal heir in the direct
relationship differentiated? descending line dies before the
decedent survived by his children or
Answer: Full blood relationship is that in the absence of other heirs who
existing between persons who have the can exclude them from the
same father and same mother. succession, a brother or sister dies
before the decedent survived by his
On the other hand, a half blood relationship
or her own children;
is that existing between persons who have
2. In case a legal heir in the direct
the same father, but not the same mother,
descending line is incapacitated to
or the same mother but not the same father.
succeed from the decedent and he
has children or descendants, or in
the absence of other heirs who can
Question: What happens if there are exclude them from the succession, a
several relatives in the same degree but brother or sister is incapacitated to
some are unwilling or incapacitated to succeed from the decedent and he
succeed? or she has no children.
Answer: The portion of the person unwilling Question: In what cases can the right of
or incapacitated to succeed shall accrue to representation exist in testamentary
the others of the same degree, save the succession?
right of representation.
Answer: The right of representation in
testamentary succession exists:
Question: In what line shall the right of 1. In case a compulsory heir in the
representation take place? direct descending line dies before
the testator survived by his children
Answer: The right of representation takes
or descendants;
place in the direct descendant line but never
2. In case a compulsory heir in the
in the ascending.
direct descending line is
In the collateral line, it takes place only in incapacitated to succeed from the
favor of the children of brothers or sisters, testator and he has children or
whether they be of the full or half blood. descendants;
3. In case a compulsory heir in the
When children of one or more brothers or direct descending line is disinherited
sisters of the deceased survive, they shall and he has children or descendants.
inherit from the latter by representation, if
they survive with their uncles or aunts. But if
they alone survive, they shall inherit in equal Question: What are the different limitations
portions. imposed by law upon the right of
representation in the collateral line?

Answer: The following are the limitations:

Question: Can an heir who repudiates his
inheritance be represented? 1. The right can be exercised only by
nephews and nieces of the
Answer: No. An heir who has repudiated decedent;
his inheritance may not be represented. 2. The right can be exercised by
nephews or nieces of the decedent
only if they concur with at least one
Question: When does the right of brother or sister of said decedent,
representation take place? otherwise if they are the only
survivors, they shall inherit in their
Answer: In intestate succession: right and not by right of
representation;

42 | P a g e
 3. The right of representation in the owned by the family. Can XL, X’s son, claim
collateral line is possible only in from the estate of A and B?
intestate succession.
Answer: Yes, XL can claim by right of
representation.

Question: What is the share which is given Article 923 of the Civil Code provides that a
to a person who inherits by right of compulsory heir that has been disinherited
representation? in the will and he has children or
descendants, the disinherited heir may be
Answer: In testamentary succession, the represented by his descendants.
share which is given to the representative is
the legitime of the compulsory heir who is
represented, while in intestate succession, it
is the entire share of the legal heir C. 2 Order of Intestate Succession
represented.

Question:

Question: X, Y and Z are children of A and What is the order of intestate succession?
B, known billionaires in the Philippines. X
Answer:
became successful in his career as a
human rights lawyer and eventually became We must distinguish between the order of
a Senator of the Republic. Prior to A and B’s intestate succession if the decedent is a
death, X repudiated his right to his legitimate person and the order if said
inheritance publicly and in a written decedent is an illegitimate person.
instrument shown in a live TV sit-down in
order to address criticisms that he is touted If the decedent is a legitimate person, the
to become the richest Senator as one of A order is:
and B’s heirs.
1. Legitimate children or descendants.
However, X suddenly died in a car crash. 2. Legitimate parents or ascendants.
Heartbroken, his father (A) and mother (B) 3. Illegitimate children or descendants.
also died after 8 months and 11 months his 4. The surviving spouse subject to the
death, respectively. concurrent right of brothers and
sisters, nephews and nieces.
XL, only child of X and his lawful spouse, L, 5. Brothers and sisters, nephews and
sought to claim his father’s share in the nieces.
estate of A and B. Can XL represent his 6. Other collateral relatives within the
father as heir of A and B? fifth degree.
7. The State.
Answer: No, XL cannot represent X in A
and B’s estate. If the decedent is an illegitimate person, the
order is:
The law provides that an heir who
repudiates his share in the inheritance 1. Legitimate children or descendants.
cannot anymore be represented. Since X 2. Illegitimate children or descendants.
repudiated his share already in the estate, 3. Parents by nature.
his son, XL, cannot anymore claim by right 4. The surviving spouse subject to the
of representation. (Article 977, NCC) concurrent right of brothers and
sisters, nephews and nieces.
5. Brothers and sisters, nephews and
Question: Suppose in the same problem, X nieces.
was disinherited by A and B because they 6. The State.
did not want him to become a human rights
lawyer but a corporate lawyer of one of the
country’s biggest mining firms which is

43 | P a g e
If the decedent is an adopted person, the (b) The intestate heirs are the two legitimate
above orders of intestate succession are children and the two illegitimate children. In
still followed, but with a difference in intestacy the estate of the decedent is
connection with parents or ascendants. divided among the legitimate and
illegitimate children of such that the share of
Under the Family Code, the adopter or each illegitimate child is ½ the share of each
adopters get a share in the estate of the legitime child.
adopted except only if the latter is survived
by legitimate children and other Their shares are:
descendants. Thus, if the adopted dies
single and is survived only by his parents by For each legitimate child – P333,333.33
nature, whether legitimate or illegitimate or For each illegitimate child – P166,666.66
legitimate ascendants, as well as by the
adopter or adopters, the parents or (Art. 983, NCC; Art. 176, FC)
ascendants get one-half (½) of the estate of
the adopted, and other half goes to the
adopter. (Art. 19[2], FC)
Question:

Do the above-mentioned orders of intestate

Question: succession apply the principle of exclusion
or the principle of concurrence? Explain?
(a) Keanu was survived by two legitimate
children, two illegitimate children, his Answer:
parents, and two brothers. He left an estate
Actually, the above-mentioned orders of
of P1 million. Who are the compulsory heirs
intestate succession apply as a rule the
of Keanu? How much is the legitime of
principle of exclusion, but they also
each? How much is the free portion of his
recognize the principle of concurrence at
estate, if any?
the same time. Thus, the legal heirs who
(b) Suppose Keanu, in the preceding are primary compulsory heirs, such as
question (a), died intestate, who are his legitimate children or descendants,
intestate heirs? How much is the share of acknowledged illegitimate children or
each in his estate? (2003) descendants and the surviving spouse
cannot be excluded from the succession.
Answer: They shall always inherit regardless of
whether they survive alone as a class or
(a) The compulsory heirs are the two with other legal heirs. However, in the case
legitimate children and the two illegitimate of the others, they are excluded by those
children. The parents are excluded by the who precede them in the order of intestate
legitime children, while the brothers are not succession, except brothers and sisters,
compulsory heirs at all. nephews and nieces. Although they are
Their respective legitimes are: excluded by children or descendants,
whether legitimate or illegitimate, or in
(1) The legitime of the two children is ½ of default thereof, by parents or ascendants,
the estate (P500,000.00) to be divided whether legitimate or illegitimate, such
between them equally, or P250,000.00 brothers and sisters, nephews, and nieces
each. are not excluded by the surviving spouse.
This is, probably, the only reason why the
(2) The legitime of each illegitimate child is latter occupies the fourth position in the
½ the legitime of each legitimate child or order of interstate succession.
P125,000.00.

Since the total legitimes of the compulsory

heirs is P750,000.00, the balance of Question:
P250,000.00 is the free portion.

44 | P a g e
Pedro had worked for 15 years in Saudi (b) The testamentary dispositions are not
Arabia when he finally decided to engage in valid and effective because the dispositions
farming in his home province where his 10- impair the legitimes of the compulsory heirs
hectare farmland valued at P2,000,000 was of Pedro. Under Art. 887 of the NCC, Alex
located. He had already P3,000,000 savings and the three illegitimate children are
from his long stint in Saudi Arabia. Pedro’s compulsory heirs. Art. 888 of the
NCC provides that Alex, being the sole
Eagerly awaiting Pedro’s arrival at the NAIA legitimate child, is entitled to P2,500,000 as
were his aging parents Modesto and his legitime to one-half of Pedro’s estate.
Jacinta, his common-law spouse The three illegitimate children are each
Veneranda, their three children, and Alex, supposed to be entitled to a legitime of one-
his child by Carol, his departed legal wide. half of the legitime of Alex or P1,250,000
Sadly for all of them, Pedro suffered a each for a total of P3,750,000. Considering
stroke because of his over-excitement just the P3,750,000 exceeds the balances of
as the plane was about to land, and died P2,500,000, said balance is to be divided
without seeing any of them. among the three in equal shares, or
P833,333 each.
The farmland and the savings were all the
properties he left. As there is no balance left in Pedro’s estate,
the dispositions to Veneranda and Pedro’s
(a) State who are Pedro’s legal heirs, and
parents may not be implemented.
the shares of each legal heir to the estate?
Explain you answer. Art. 147 of the Family Code would however,
be applicable where the farmland and the
(b) Assuming that Pedro’s will is discovered
P3,000,000 savings were acquired while
soon after his funeral. In the will, he
Pedro and Veneranda lived together. In this
disposed of half of his estate in favor of
case, P2,500,000 shall belong to
Veneranda, and the other half in favor of his
Veneranda under the rules of co-ownership
children and his parents in equal shares.
and Pedro’s estate shall only be
Assuming also that the will is admitted to
P2,500,000.
probate by the proper court, are the
testamentary dispositions valid and effective
under the law on succession? Explain you
answer. (2017) Question:

Answer: May the brothers and sisters of the

decedent inherit from their brother if the
(a) Hereunder are Pedro’s legal heirs and decedent has illegitimate children?
their shares to his P5,000,000 estate (on
the assumption that the P2,000,000 Answer:
farmland and P3,000,000 savings are
Pedro’s exclusive properties): No, if the decedent left illegitimate children,
the brothers and sisters are precluded from
i. Alex, who is Pedro’s legitimate child inheriting the estate of their brother.
by his deceased wife (Art. 979,
NCC) – ½ of Pedro’s estate Under Art. 988, NCC, in the absence of
amounting to P2,500,000. legitimate descendants or ascendants, the
ii. Pedro’s three illegitimate children by illegitimate children shall succeed to the
his common law spouse, Veneranda entire estate of the deceased. If there are
– remaining P2,500,000 to be no illegitimate children or a surviving
divided equally or P833,333.33 each spouse, the collateral relatives shall
illegitimate child. (Arts. 983, 895, succeed to the entire estate of the
NCC) deceased. (Art. 1003, NCC) The rule is so
because the children are the closest
Pedro’s parents Modesto and Jacinta are relatives and under the law, the nearer
excluded by Alex (Art. 985, NCC). excludes the farther in the law on
succession.

45 | P a g e
(Carolina Abad Gonzales vs. CA, October
30, 1999

Question:

Joey was married to Pipay. Petitioners are

the nephew and niece of Pipay. When Pipay
died, she was survived by her husband and
the petitioners. Joey executed an Affidavit of
Adjudication of a parcel of land left by Pipay
and sold it to Alma. Petitioners filed an
action to recover their share of such land
contenting that they are entitled to inherit
from Pipay. Will the action prosper? Why?

Answer:

Yes, because what was inherited by Joey

was only ½ of the parcel of land and the
other ½ went to the petitioners, nephew and
niece of Pipay. Joey therefore could
alienate only ½ of the land. More
particularly, the law outlines that manner by
which the estate of the decedent shall be
divided, to wit:

“Art. 975. Where children of one or more

brothers or sisters of the deceased survive,
they shall inherit from the latter by
representation, if they survive with their
uncles or aunts. But if they alone survive,
they shall inherit in equal portions.”

“Art. 995. In the absence of legitimate

descendants and ascendants, and
illegitimate children and their descendants,
whether legitimate or illegitimate, the
surviving spouse shall inherit the entire
estate, without prejudice to the rights of
brothers and sister, nephews and nieces
should there be any, under Art. 1001.”

“Art. 1001. Should brothers and sisters of

their children survive with the widow or
widower, the latter shall be entitled to ½ of
the inheritance and the brothers and sisters
for their children to the other half.”

(Tizon vs. CA, G.R. No. 121027, July 31,

1997)

46 | P a g e
 Survivors Share Division
1. Any class alone Whole Estate Rule of Proximity
(Art. 962, NCC)
2. (a) Leg. Children Whole Estate Rule of Proximity
(b) Leg. Parents Excluded (Art. 962, NCC)
3. (a) Leg. Children Concurrence or Exclusion Concurrent Theory – Satisfy
(b) Illeg. Parents Theory legitime and then distribute
the disposable portion, if
any, pro rata (10:5). (Arts.
895, 983, 996, 999, NCC)
4. (a) Leg. Children Surviving Spouse entitled to
(b) Surviving Spouse the same share as each Leg.
Child
5. (a) Leg. Children Concurrence or Exclusion Exclusion Theory – Satisfy
(b) Illeg. Children Theory (NOTE: The legitime their legitime, and then give
(b) Surviving Spouse of each Illeg. Child shall the disposable portion, if
consist of ½ of the legitime o any, to the preferred heir in
a Leg. Child. [Art. 176, FC]) the order of intestate
succession. (Arts. 895, 961,
983, 996, 999, NCC)
6. (a) Leg. Parents ½ If decedent is an illegitimate
(b) Illeg. Parents ½ person, his natural parents
are excluded by the
presence of an Illeg. Child.
(Art. 991, NCC)
7. (a) Leg. Parents ½ Same share even if
(b) Surviving Spouse ½ decedent is an illegitimate
person.
(Art. 997, NCC)
(Art. 176, FC)
8. (a) Leg. Parents ¼ (Art. 998, NCC)
(b) Illeg. Children ¼
(b) Surviving Spouse ¼
9. (a) Ileg. Children ½ (Art. 1001, FC)
(b) Surviving Spouse ½
10. (a) Surviving Spouse Whole Estate Rule of Proximity
(b) Brothers and Sisters, (Arts. 1003-1010, NCC)
Nephews and Nieces
11. Collaterals Whole Estate Escheat Proceedings
(Arts. 10110-1014, NCC)
12. State

Question: May B and C inherit from A? Reasons.

(1983)
A, spurious child, died intestate survived by
B, the brother of his deceased mother, and Answer:
C, his mother’s legitimate granddaughter.

47 | P a g e
B and C cannot inherit from A. The reason (Jurado, Comments and Jurisprudence on
is what is sometimes known as the principle Succession, 8th Ed., 1991, pp. 423-424, as
of absolute separation between members of cited in Manuel vs. Ferrer, G.R. No.
the legitimate family and members of the 117246, August 21, 1995)
illegitimate family. According to this
principle, an illegitimate child cannot inherit
ab intestate from the legitimate children or Question:
relatives of his presumed or putative parent;
neither can such legitimate children or What are the successional rights of
relatives of his presumed or putative parent illegitimate children in intestate succession?
inherit ab intestate from the illegitimate
child. Obviously, B and C are legitimate Answer:
relatives of A’s mother. There is, therefore,
The successional rights of illegitimate
an impenetrable or impassable barrier
children in intestate succession may be
existing between A, the decedent, on one
summarized as follows:
hand, and B and C, on the other hand. One
cannot inherit ab intestato from the other. (1) If they survive alone as a class – Under
Art. 176 of the FC, when the illegitimate
children survive alone as a class, they are
Question: entitled to the entire estate and the share of
the illegitimate children, whether classified
What is meant by the law when it speaks of as natural or not under the NCC, shall be
brothers and sisters, nephews and nieces, the same. Hence, the entire estate is
as legal or intestate heirs of an illegitimate divided equally among the illegitimate
child? children. (The old law providing that the
share of an acknowledged illegitimate child
Answer: who is not natural is always 4/5 of the share
It refers to illegitimate brothers and sisters of the acknowledged natural child or natural
as well as to the children, whether legitimate child by legal fiction, was repealed by the
or illegitimate, of such brothers and sisters. FC.)
The law prohibits absolutely a succession (2) If they survive with legitimate
ab intestate between the illegitimate child descendants – Estate shall be divided in
and the legitimate children and relatives of accordance with the proportion prescribed
the father or mother of said legitimate child. in the Family Code (Art. 176) which is 10:5.
Between the legitimate and the illegitimate
family, there is presumed to be an (3) If they survive with ascendants – If
intervening antagonism and incompatibility. decedent is legitimate, the legitimate
The illegitimate child is disgracefully looked ascendants are entitled to ½ estate, while
down upon by the legitimate family; the the illegitimates are entitled to the other ½.
legitimate family is, in turn, hated by the (Art. 991, NCC) If decedent is illegitimate,
illegitimate child; x x x the law does no more ascendants are excluded; consequently, the
than recognize this truth, by avoiding further illegitimates are entitled to entire estate.
grounds of resentment. (Art. 993, NCC)

48 | P a g e
(4) If they survive with spouse – The legitime of the two acknowledged
illegitimates are entitled to ½ of estate while illegitimate children and two acknowledged
the surviving spouse is entitled to other ½. illegitimate children who are not natural in
(Art. 998, NCC) the above problem shall be the same. The
5:4 proportion has been eliminated under
(5) If they survive with legitimate the Family Code and the 10:5 proportion is
descendants and spouse – Under the FC, herein followed. To apply this proportion
the illegitimate child (natural or not) shall be directly would result in the impairment of the
entitled to ½ of the legitime of a legitimate legitime of A. Consequently, we must first
child. So, the successional rights of the satisfy the legitime of the survivors in the
illegitimate children with legitimate aforementioned problem. A shall, therefore
descendants and spouse shall be divided in be entitled to ½ of P72,000.00 or
the proportion of [Link] (contrary to the P36,000.00. Now, if she shall give ½ of
proportion prescribed with old law [Art. 895, P36,000.00 will not be sufficient to satisfy
NCC] which is [Link], with the surviving the legitime of the four illegitimate children.
spouse getting the same share as that of a So, the remaining free portion of
legitimate child [Arts. 999, 983, NCC]). P36,000.00 shall be divided among the four
illegitimate children equally. Consequently,
(6) If they survive with ascendants and
the distribution shall be as follows: A shall
spouse – If decedent is legitimate, the
be entitled to P36,000; B to P9,000.00; C,
legitimate ascendants are entitled to ½ of
P9,000.00; D to P9,000.00; and E to
estate, the illegitimates are entitled to ¼,
P9,000.00.
and the surviving spouse is entitled to ¼.
(Art. 1000, NCC) If decedent is illegitimate,
the parents are excluded; consequently, the
illegitimates are entitled to ½ of estate, while Question:
the surviving spouse is entitled to the other
½. (Art. 993, 994, NCC) X died intestate survived by two legitimate
children, A and B, and one acknowledged
natural child, C. The estate is P80,000.00.
How shall the distribution be made?
Question:
Answer:
X died intestate survived by one legitimate
child, A, two acknowledged natural children, Two different theories have been advanced
B and C, and two acknowledged illegitimate in order to solve the problem. The first is
children not natural, D and E. The estate is based upon the principle of exclusion, while
P72,000.00. How shall the inheritance be the second is based upon the principle of
distributed? concurrence. For the sake of convenience,
we shall call the first the exclusion theory
Answer: and the second the concurrence theory.
Under the Family Code, the legitime of each Under both theories, the legitime of the
illegitimate child (whether natural or not) survivors must be satisfied first. Hence,
shall consist of ½ of the legitime of a since A and B are legitimate children of the
legitimate child. (Art. 176) Therefore, the decedent, they shall be entitled to ½ of

49 | P a g e
P80,000.00. Consequently, each of them Where there is a concurrence of legitimate
shall be given P20,000.00. On the other and illegitimate children in the succession,
hand, since C is an acknowledged natural the article declares that the “proportions
child, he shall be entitled to ½ of prescribed by Art. 895” shall be observed.
P20,000.00 or P10,000.00. There is, Under the exclusion theory, such
therefore, a balance of P30,000.00. How proportions are not observed; as a matter of
shall this balance be divided? It is here fact, they are discarded altogether. Besides,
where there is a conflict between the two we must not lose sight of the new
theories. philosophy underlying the application of the
order of intestate succession. As a result of
According to the exclusion theory, the the changes or innovations in the new
balance of P30,000.00 shall be given to A Code, it would be more accurate to say that
and B, in conformity with the general order the order of intestate succession is now
of succession. Consequently, under this based not only on the principle of exclusion
theory, the share of each survivor shall be but also on the principle of concurrence.
as follows: Consequently, the old method of distribution
whereby acknowledged natural children
A ………. P35,000.00
would be entitled only to their legitime has
B ………. P35,000.00 no longer any place under our law.

C ………. P10,000.00

P80,000.00 Question:

According to the concurrence theory, the Can an adopting parent inherit from the
balance of P30,000.00 shall be divided adopted child whether testate or intestate?
among the three survivors in the proportion
Answer:
of [Link] in conformity with the provision of
Art. 983 of the NCC. A and B shall, An adopting parent can inherit from the
therefore, be entitled to 2/5 each of adopted by testamentary succession. Under
P30,000, or P12,000.00 each, while C shall the testate succession, there is no law
be entitled to 1/5 of P30,000.00, or which prohibits the latter from making a will
P6,000.00. Consequently, under this theory, and instituting therein the adopted as heir,
the share of each survivor shall be as legatee, or devisee.
follows:
Thus, under the Family Code, the adopting
A ………. P32,000.00 parent can inherit from the adopted or get a
share in the estate of the adopted on legal
B ………. P32,000.00
or intestate succession except only inf the
C ………. P16,000.00 latter is survived by legitimate children and
other descendants. When the parents,
P80,000.00 legitimate or illegitimate, or the legitimate
ascendants of the adopted concur with the
It is submitted that the solution according to
adopters, they shall divide the entire estate,
the concurrence theory is the correct
½ to be inherited by the parents or
solution. The provision of Art. 983 is explicit.

50 | P a g e
ascendants and the other half, by the he is entitled to ½ of P40,000.00, or
adopters. (Art. 190[2], FC) When the P20,000.00 by operation of law. Such
surviving spouse or the illegitimate children legitime cannot be impaired whether by the
of the adopted concur with the adopters, expressed or the presumed will of the
they shall divide the entire estate in equal decedent. Hence, if anybody should be
shares, ½ to be inherited by the spouse or prejudiced by the legacy give to Y, and it
the illegitimate children of the adopted and cannot be avoided since it is admitted that
the other half, by the adopters. (Art. 190[3], such legacy must be respected, it should be
FC) When the adopters concur with the B. Anyway, his legitime is not impaired.
illegitimate children and the surviving Consequently, the distribution must be
spouse of the adopted, they shall divide the made as follows:
entire estate in equal shares, ½ to be
inherited by the illegitimate children, 1/3 by A ………. P20,000.00
the surviving spouse, and 1/3 by the B ………. P10,000.00
adopters. (Art. 190[4], FC) And when only
the adopters survive, they shall inherit the C ………. P10,000.00
entire estate. (Art. 190[5], FC) All the
abovementioned provisions refer to legal or P40,000.00
intestate succession.

Question:
Question:
What are the successional rights of the
Before his death, X executed a will surviving spouse in intestate succession?
bequeathing P10,000.00 to his friend, Y.
Answer:
There is no other disposition found in the
will. He is survived by his legitimate father, The successional rights of the surviving
A, and an acknowledged natural son, B. His spouse in intestate succession may be
estate is P40,000.00. How shall the summarized as follows:
distribution be made?
(1) If he or she survives alone – He or she is
Answer: entitled to the entire estate. (Art. 995, NCC)

It is evident that mixed succession shall (2) If he or she survives with legitimate
take place in this case. There is, of course, descendants – He or she shall have the
no question that the legacy of P10,000.00 in same share as that of each legitimate child.
favor of Y shall have to be satisfied. After all (Art. 996, NCC)
it is not inofficious. How then shall the
balance of P30,000.00 be divided? Shall the (3) If he or she survives with ascendants – If
provision of Art. 991 of the NCC be applied decedent is legitimate, the legitimate
literally so that A shall be entitled to ascendants are entitled to ½ of estate, while
P15,000.00 and B shall also be entitled to he or she is entitled to the other ½. (Art.
P15,000.00? It is clear that if this solution is 997, NCC) If decedent is illegitimate, same
followed, there would be an impairment of rule applies. (Art. 994, NCC)
the legitime of A. Under the law on legitime,

51 | P a g e
(4) If he or she survives with illegitimate knowing that C had died earlier, leaving a
children – The illegitimates are entitled to /2 wife, E, and a legitimate son, F.
of estate, while he or she is entitled to the
other 1/2. (Art. 998, NCC) State the shares, if any, of the following in
the estate of Guillermo: A, B, D, E, F,
(5) If he or she survives with brothers and Pacita, and Juana. (1984)
sisters, nephews and nieces – He or she is
entitled to ½ of estate, while brothers and Answer:
sisters, nephews and nieces are entitled to A shall be entitled to the share of a
the other ½. (Art. 1001, NCC) legitimate child.
(6) If he or she survives with legitimate B shall also be entitled to the share of a
descendants and illegitimate children – legitimate child. D, being a natural child by
Under the FC, the legitime of illegitimate legal fiction, shall be entitled to ½ of the
children (whether classified under the NCC
share of A or B. It must be observed that
as natural or not) is ½ of the legitime of the Guillermo’s marriage to Juana is void from
legitimate child. So, the successional rights the point of view of Philippine law since the
of the spouse surviving, with legitimate decree of absolute divorce obtained by him
descendants and illegitimate children shall against Pacita is not recognized as a valid
be divided in the following proportions decree. (See Arts. 15, 71, 80, No. [4], NCC)
[Link], thereby eliminating the proportions
prescribed in Art. 895, NCC which is [Link] E shall not participate in the inheritance
because she is not a legal heir of Guillermo.
(7) If he or she survives with ascendants
and illegitimate children – If decedent is F shall be entitled to the same share as A
legitimate, the legitimate ascendants are and B by rights of representation, being the
entitled to ½ of estate, the illegitimates are legitimate son of C, who predeceased his
entitled to 1/4 , and the surviving spouse is father Guillermo.
entitled to ¼. (Art. 1000, NCC) If decedent
is illegitimate, the parents are excluded; Pacita shall be entitled to the same share as
consequently, the illegitimates are entitled A or B, being the surviving spouse of
to ½ of estate, while the surviving spouse is Guillermo. (Art. 999, NCC)
entitled to the other 1/2 . (Arts. 993, 994,
Juana shall not participate in the inheritance
NCC)
because she is not a legal heir of Guillermo.

Hence, the proportionate shares of A,B,F,

Question: Pacita, and D in the inheritance will be: (2
for A, 2 for B, 2 for F, 2 for Pacita, and 1 for
Spouses Guillermo and Pacita had three F) or ([Link]).
sons, namely, A, B, and C. Beset by
quarrels, their marriage broke up. Guillermo A’s share will be 2/9 of the estate;
left for and obtained a divorce in the United
B’s share will be 2/9 of the estate;
States, where he subsequently married
Juana, by whom he had a son, D. Guillermo F’s share will be 2/9 of the estate;
later died in the United States without even

52 | P a g e
Pacita’s share will be 2/9 of the estate; and legitimate child or two or more legitimate
children can be clearly inferred from the fact
F’s share will be 1/9 of the estate; that the arrangement under the Spanish
CC, whereby one rule (the general rule) was
Question:
expressly provided for a case where the
(a) A died without a will. He is survived by widow or widower concurs with legitimate
his widow, B, and by one legitimate son, C. children and another rule (the exception)
The estate is P60,000.00. How shall the was expressly provided for a case where
distribution be made? such widow or widower concurs with only
one legitimate child, has not been adopted
(b) A died without a will. He is survived by in Art. 996 of the NCC.
his widow, B, one legitimate son, C, one
acknowledged natural son, D, and one (Santillon vs. Miranda, 12 SCRA 563)
illegitimate (spurious) son, E. The estate is
(b) Although the NCC in Art. 999 expressly
P72,000.00. How shall the distribution be
declares that the widow or widower survives
made?
with legitimate children or their
Answer: descendants, whether legitimate or
illegitimate, such widow or widower shall be
(a) B shall be entitled to ½ of P60,000.00, entitled to the same share as that of a
while C shall be entitled to the other ½. legitimate child, nevertheless, the rule that
Consequently, the share of B shall be the widow or widower shall be entitled to the
P30,000.00, while the share of C shall also same share as that of a legitimate child
be P30,000.00. cannot be applied literally to the instant
problem. The reason for this is evidence.
Art. 996 expressly provides that if a widow
Nothing would be left for the illegitimate
or widower and legitimate children or
children. Under the principle of compulsory
descendants are left, the surviving spouse
succession, which pervades our law of
has in the succession the same share as
succession whether testamentary or
that of each of the legitimate children.
intestate, the legitime of compulsory heirs
Although, apparently, this provision refers
can never be impaired. Consequently, the
only to a situation where the surviving
only thing that we can do is satisfy the
spouse concurs with two or more legitimate
legitime of the survivors. C shall be entitled
children or descendants, nevertheless, the
to ½ of P72,000.00, or P36,000.00. B shall
provision should be read and so applied as
be entitled to ¼ of P72,000.00 or
follows: “If the widow or widower and a
P18,000.00; D and E shall be entitled to the
legitimate child are left, the surviving spouse
remaining of P18,000.00 of which they shall
has the same share as that of the legitimate
be divide equally since the free portion is
child.” This is so because of a well-
not sufficient to satisfy the legitime of the
established principle of statutory
two illegitimate children, which should be
constructions to the effect that the plural
P18,000.00 for each of them. Please note
includes the singular. Besides, the
that under the FC, D and E ares both
legislator’s desire to promulgate just one
classified as the illegitimate children of A
general rule applicable to all situations
and will get the same share, which is ½ of
regardless of whether there is only one
the legitime of C, the legitimate child of A,

53 | P a g e
thereby eliminating the proportion of 5:4 (a) How much is the legitime of the above
prescribed under the old law. survivors?

Consequently, the distribution shall be as (b) If X died intestate, how shall the estate
follows: B, the surviving spouse gets be divided?
P18,000.00; C, the legitimate son gets
P36,000.00; D and E gets P9,000.00 each. Answer:

(a) Under the law on legitime, the legitime of

A and B is 1/2 of the estate, or P52,000.00,
Question: or P26,000.00 each. (Art. 888, NCC) The
legitime of W is equal to that of each
X, an employee of the Supreme Court, died legitimate chid, or P26,000.00. (Art. 892 [2],
intestate in 1976, survived by his widow, W, NCC) Now, if we shall give 1/2 of
a legitimate child, A and two illegitimate P26,000.00, or P13,000.00, which is the
children, B and C. The record shows that he share under Art. 176 of the FC of each of
failed to state in his application for the three illegitimate children (whether
membership with the GSIS the beneficiary classified under the NCC as natural or not
or beneficiaries of his retirement benefits. since they are now all classified as
Said benefits amount to P80,000.00. How illegitimate children under the FC and will
shall such benefits be divided? get the same share, which is 1/2 of the
legitime of each child, thereby eliminating
Answer:
the proportion of 5:4), the free portion of
The rules of intestate succession shall P26,000.00 will not be sufficient to satisfy
govern. Hence, the retirement benefits the legitime of the three illegitimate children.
amounting to P80,000.00 shall be divided So, the remaining free portion of
as follows: P26,000.00 shall be divided among the
three illegitimate children equally.
W ………. 1/4, or P20,000.00 Consequently, the distribution shall be as
follows: A and B shall be entitled to
A ………. 1/2, or P40,000.00
P26,000.00 each; W to P26,000.00; C, D
B ………. 1/8, or P10,000.00 and E shall be entitled to P8,666.66 each.

C ………. 1/8, or P10,000.00 (b) Applying the provisions of Arts. 996 and
999 of the NCC, in relation to Art. 983 of the
(Re: Mario V. Chanliongco, 79 SCRA 364) same Code, which declares that “if
illegitimate children survive with legitimate
children, the shares of the former shall be in
Question: the proportions prescribed in Art. 895,” the
shares of the survivors are the same as
X is survived by: (1) W, his widow; (2) A and those mentioned above. In other words, the
B, his legitimate children; (3) C, an survivors will be entitled to their legitime
acknowledged natural child; and (4) D and only.
E, acknowledged illegitimate children who
are not natural. The net value of his estate
after liquidation is P104,000.00.

54 | P a g e
Question: divided among A,B,Y and C in the
proportion of [Link]. A, B and Y shall,
X died intestate, survived by the following: therefore, be entitled to 2/7 each of
(1) his widow, Y; (2) his legitimate children, P17,500.00, or P5,000.00 each, while C
A and B; and (3) his acknowledged natural shall be entitled to 1/7 of P17,500.00, or
child, C. The net value of the estate is P2,500.00. Consequently, the distribution
P140,000.00. How shall the distribution be shall be as follows:
made?
A ………. P40,000.00
Answer:
B ………. P40,000.00
There are two conflicting theories with
regard to the correct solution to the above Y ………. P40,000.00
problem. The first is based upon the
principle of exclusion, while the second is C ………. P20,000.00
based upon the principle of concurrence. P140,000.00
Under both theories, the legitime of the
survivors must be satisfied first. Hence, It is submitted that the second solution is
since A and B are legitimate children, their correct. Art. 983 of the NCC provides that “if
legitime shall be P35,000.00 each. The illegitimate children survive with legitimate
widow, Y, shall, of course, be entitled to children, the shares of the former shall be in
P35,000.00 also, while the acknowledged proportion prescribed in Art. 895,” while Art.
natural child, C shall be entitled to 1/2 of 999 of the same Code provides that “when
P35,000.00, or P17,500.00. That leaves a the widow or widower survives with
balance of P17,500.00. It is with respect to legitimate children of their descendants and
this balance that there is a conflict of illegitimate children or their descendants,
opinion. entitled to the same shares as that of a
legitimate child.” It is obvious that the first
According to the first theory (the exclusion solution would discard the proportions
theory), the balance must be given to the prescribed in Art. 895 altogether and, at the
legitimate children, A and B, since they are same time, disregard the rule prescribed in
the first in the order of intestate succession. Art. 999 by giving to the surviving spouse a
Consequently, the distribution shall be as share which is less than that of a legitimate
follows: child.
A ………. P43,750.00

B ………. P43,750.00

Y ………. P35,000.00 Question:

C ………. P17,500.00 Let us assume that in the above problem, B
P140,000.00 and C died before the decedent, X. B is
survived by two children, D and E. D is a
According to the second theory (the legitimate child, while E is an acknowledged
concurrence theory), the balance must be natural child. C, on the other hand, is also

55 | P a g e
survived by two children, F and G. F is a F ………. P11,666.66 by right of representation
legitimate child, while G is an acknowledged
natural child. How shall the inheritance be G ………. P5,833.33 by right of representation
distributed? P140,000.00
Answer: Under the concurrence theory:
Before we can distribute the inheritance it is A ………. P40,000.00
necessary to determine whether the child of
B as well as those of C can inherit from the D ………. P40,000.00 by right of representation
decedents by right of representation or not.
Undoubtedly D, who is legitimate, can E ………. None
represent his father B (Arts. 981, 982,
Y ………. P40,000.00
NCC), but how about E – can he inherit by
right of representation from the decedent, X, F ………. P13,333.33 by right of representation
considering that he is illegitimate? The
answer is obvious. He cannot. Under the G ………. P6,666.66 by right of representation
NCC, there is an impassable barrier existing
P140,000.00
between members of the legitimate family
and the illegitimate family. (Art. 992, NCC) It
is different in the case of F and G; their
father, C, is illegitimate. Consequently, this Question:
barrier does not exist. Hence, they can
Anton was married to Binky and their
inherit from their grandfather, X, by right of
marriage produced a son named Carl. Carl
representation. As a matter of fact, this right
married Dina but their union had no
is expressly recognized in Art. 999 of the
offspring. During their marriage, Carld had
NCC. It must, however, be observed that
an extramarital affair with Ellen who gave
since F is a legitimate child and G is an
birth to Francis. Francis then married Gina.
acknowledged natural child, the share which
Anton died in 1939. Carl died in 1954. Dina
would have passed to their father C, shall
died in 1960. Binky died in 1981. Carl and
have to be divided between them in the
Ellen had in their possession 10 parcels of
proportion of 2:1. In other words, F shall be
land, eight of which belonged to Anton,
entitled to 2/3, while G shall be entitled to
while the other two belonged to Binky. Binky
1/3.
allegedly transferred her properties to
In view of the foregoing, the final distribution Francis in a last will and testament which,
of the inheritance shall be as follows: however, was not probated. The petitioners
herein who were Binky’s siblings, nephews
Under the exclusion theory: and nieces filed a complaint to recover the
parcels of land and damages against
A ………. P43,750.00 by right of representation
Francis and Ellen. They contendt that since
D ………. P43,750.00 Francis is an unacknowledged child of Carl,
Francis has no right over the said parcels of
E ………. None land in question. Francis contends,
however, that he was acknowledged by
Y ………. P35,000.00

56 | P a g e
Carl, a fact evidenced by the birth right to inherit ab intestate from the
certificated of Francis. Does Francis have legitimate children and relatives of his father
successional rights over the properties in or mother; in the same manner, such
question? children or relatives shall not inherit from the
illegitimate child. The right of representation
Answer: is not available to illegitimate descendants
of legitimate children in the inheritance of a
In the case of Arado Heirs vs. Alcoran (G.R.
legitimate grandparent. (Barrier or Iron
No. 163362, July 8, 2015), the Supreme
Curtain Rule.) And second, Francis could
Court ruled that:
not inherit from the estate of Binky by virtue
(a) As to the eight lots belonging to Anton, of the latter’s last will and testament. Art.
Carl has successional rights over the said 838 of the Civil Code dictates that no will
properties. With Anton having died in 1939, shall pass either real or personal property
the Spanish Civil Code of 1889 was the unless the same is proved and allowed in
governing law on succession. Under the accordance with the Rules of Court. In order
said Code, the surviving spouse (Binky) and that a will may take effect, “it has to be
the legitimate son of Anton (Carl) were his probated, legalized or allowed in the proper
forced heirs who acquired legal title to testamentary proceeding. The probate of
Anton’s estate upon his death. When Carl the will is mandatory.” It appears that such
died, the Civil Code of the Philippines was will remained ineffective considering that the
already in effect. Under Art. 1000, the heirs records are silent as to whether it has even
entitled to inherit from the estate of Carl been presented for probate, and has been
were Binky (his mother), Dina (his surviving allowed by a court of competent jurisdiction.
spouse), and Francis (his acknowledged
illegitimate son). Francis had an established
right to inherit from Carl, whose estate Question:
included the first eight of the subject
properties that had previously belonged to What is the possible rationale for providing
Anton. Likewise, Binky succeeded to, and a barrier or iron curtain in Art. 992 of the
became a pro indiviso co-owner of the saidf NCC, thus, prescribing a limitation to the
properties that formed part of Carl’s estate. rules laid down in Arts. 902, 989, 990, and
992 granting successional rights to the
(b) As to the two remaining lots belonging to illegitimate children, which rights are
Binky, as well as her share in the estate of transmitted upon death to their descendants
Carl, Art. 1003 of the Civil Code mandated (legitimate or illegitimate) who may inherit
that in as much as Binky died without any by way of their right of representation?
surviving legitimate descendant, ascendant,
illegitimate child, or spouse, then her Answer:
collateral relatives should inherit from her
entire estate. Francis was barred by law In the cases of Diaz vs. IAC (G.R. No. L-
from inheriting from the estate on Binky. To 665574, February 21, 1990) and Arado vs.
start with, Francis could inherit from Binky Alcoran (G.R. No. L-63362, July 8, 2015),
by right of representation of Carl, the the Supreme Court states the following:
legitimate son of Binky. Under Art. 992 of “Art. 992 of the NCC provides a barrier or
the Civil Code, an illegitimate child has no iron curtain in that it prohibits absolutely a

57 | P a g e
succession ab intestate between the Question:
illegitimate child and the legitimate children
and relatives of the father or the mother of Don Ricardo had 2 legitimate children -
the legitimate child; in the same manner Tomas and Tristan. Tristan has 3 children.
such children and relatives shall not inherit Meanwhile, Tomas had a relationship with
from the illegitimate child. They may have a Nancy, who was also single and had the
natural tie of the blood, but this is not legal capacity to marry. Nancy became
recognized by law for the purpose of Art. pregnant and gave birth to Tomas, Jr. After
992. Between the legitimate family and the the birth of Tomas, Jr., his father, Tomas,
illegitimate family, there is presumed to be died. Later, Don Ricardo died without a will
an intervening antagonism and and Tristan opposed the motion of Tomas,
incompatibility. The illegitimate child is Jr. to be declared an heir of the deceased
disgracefully looked down upon by the since he is an illegitimate child. Tomas, Jr.
legitimate family; and the family is in turn, countered that Article 992 of the Civil Code
hated by the illegitimate child; the latter is unconstitutional for violation of the equal
considers the privileged condition of the protection of the laws. He explained that an
former, and the resources of which it is illegitimate child of an illegitimate parent is
thereby deprived; the former, in turn, sees in allowed to inherit under Articles 902, 982
the illegitimate child nothing but the product and 990 of the Civil Code while he - an
of sin, palpable evidence of blemish broken illegitimate child of a legitimate father -
in life; the law does no more than recognize cannot. Civil Law commentator Arturo
this truth, by avoiding further ground of Tolentino opined that Article 992 created an
resentment.” Thus, although successional absurdity and committed an injustice
rights were granted to illegitimate children because while the illegitimate descendant of
under the rules laid down in Arts. 902, 989 an illegitimate child can represent, the
990, and 992 of the NCC, Art. 992 has, illegitimate descendant of a legitimate child
however, prescribed a limitation to the rules, cannot. Decide the case and explain. (2016)
prohibiting the right of representation where Answer:
the person to be represented is a legitimate
child. Needless to say, the determining Tomas, Jr.’s motion to be declared an heir
factor is the legitimacy or illegitimacy of the of the deceased Don Ricardo should be
person to be represented. If the person to denied. Because of the barrier existing
be represented is an illegitimate child, then between members of the legitimate family
his descendants, whether legitimate or and those of the illegitimate family (the iron
illegitimate, may represent him; however, if curtain rule under Art. 992, NCC), Tomas,
the person to be represented is legitimate, Jr., an illegitimate son of the deceased
his illegitimate descendants cannot legitimate son, Tomas, cannot inherit ab
represent him because the law provides that intestate from the deceased, Don Ricardo.
only his legitimate descendants may Art. 992, NCC states that: “An illegitimate
exercise the right of representation by child has no right to inherit ab intestate from
reason of the barrier imposed by Art. 992. the legitimate children and relatives of his
father or mother, nor shall such children or
relative inherit in the same manner from the
illegitimate child.”

58 | P a g e
To argue that Art. 992, NCC violates the IR insisted in getting a share of the estate in
equal protection clause is not acceptable. A her capacity as the surviving spouse of CR,
law is not invalid because of simple son of PR, claiming that she is a
inequality. The equal protection clause only compulsory heir of her mother-in-law
requires that all persons or things similarly together with her son MR. The intestate
situated should be treated alike, both as to court denied her plead. She appealed to the
rights conferred and responsibilities Supreme Court. Whether the widow whose
imposed. Similar subjects should not be husband predeceased his mother can
treated differently so as to give undue favor inherit from the latter, her mother-in-law.
and unjustly discriminate against others. Reasons.
The guarantee means that no person or
class shall be denied the same protection of Answer:
laws which is enjoyed by other persons or The facts stated in the above problem are
other classes in like circumstances. It, those in the case of Rosales vs. Fortunato
however, does not require the universal Rosales (G.R. No. L-40789, February 27,
application of the laws to all persons or 1987, where the Supreme Court held that
things without distinction. What is simplye there is no provision in the NCC which
requireds is equality among equals as states that a widow (surviving spouse) is an
determined according to a valid intestate heir of her mother-in-law. The
classification. Indeed, the equal protection entire Code is devoid of any provision of the
clause permits classification. Code which relate to the order of intestate
succession (Arts. 978 to 1014) enumerate
with meticulous exactitude the intestate
Question: heirs of a decedent, with the State as the
final heirs. The conspicuous absence of a
PR died intestate. She was survived by her provision which makes a daughter-in-law an
husband FR, and their two children, MA (the intestate heir of the deceased all the more
daughter) and AR (the son). Another child confirms Supreme Court observation. If the
CR, predeceased her, leaving behind a legislature intended to make the surviving
child MR, and his (CR’S) widow, IR. In the spouse an intestate heir of the parent-in-
course of the intestate proceedings , the law, it would have so provided in the Code.
trial court issued an order declaring the
following as the legal heirs of PR IR however contends that at the time of the
prescribing their respective share of the death of her husband CR, he had an
estate as follows: inchoate or contingent right to the properties
of PR as compulsory heir. Be that as it may,
FR (Husband) – 1/4 said right of her husband was extinguished
by his death that is why it is their son MR
MA (Daughter) – 1/4
who succeeded from PR by right of
AR (Son) – 1/4 representation. He did not succeed from his
deceased father, CR.
MR (grandson, son of CR)

and IR (widow of CR) – 1/4

59 | P a g e
Question: In synthesis, the division of the estate is as
follows:
X died, survived by the following heirs: (a)
his widow, W; (b) his legitimate parents, F F ………. P72,000.00
and M; (c) his acknowledged natural
children, A and B; and (d) his acknowledged M ………. P72,000.00
spurious children, C and D. The net value of W ………. P72,000.00
his estate is P288,000.00.
A ………. P18,000.00
(1) How much is the legitime of the above
survivors? B ………. P18,000.00

(2) Suppose that X died intestate, how shall C ………. P18,000.00

the estate be divided?
D ………. P18,000.00
Answer:
Estate P288,000.00
(1) The legitime of F and M is 1/2 of the
estate, or P144,000.00, or P72,000.00
each. (Art. 889, NCC) The legitime of W is
1/8 of the estate to be taken from the free
portion, or P36,000.00. (Art. 899, NCC) The
legitime of the four illegitimate children is
1/4 to be taken also from the free portion, or Question:
P72,000.00. (Art. 899, NCC) Under the FC
H died intestate survived by his widow, W,
they shall inherit in the same successional
and his legally adopted son, AS. In the
rights, whether classified under the NCC as
proceedings for the settlement of his estate,
natural or not. The 5:4 proportion on natural
M, the widowed mother of H, intervened and
and not natural children has been
claims for a share of the estate of H. AS
eliminated by the FC. Hence, A, B, C and D
opposes the claim of M contending that
shall be entitled to P18,000.00 each
since under the law he is given the same
(P72,000.00÷4). There will still be a balance
rights as a legitimate child, he excludes M
of 1/8of the estate, or P36,000.00, for free
from the estate of H. Should this opposition
disposal.
be sustained? Why? (1979)
(2) If X died intestate, according to Art. 1000
Answer:
of the NCC, F and M shall be entitled to 1/2
of the estate, or P144,000.00 or P72,000.00 The opposition of AS should not be
each; W, to 1/4 of the estate, or P72,000.00; sustained. He is to a certain extent correct
and A, B, C and D shall then be divided when he contends that he is entitled to the
among them equally. (Under the FC, the same successional rights as a legitimate
proportion of 5:4 prescribed in the old law child, but there is an exception to this rule.
has been eliminated.) A, B, C and D shall According to the Child and Youth Welfare
be entitled to P18,000.00 each Code, if the adopter is survived by
(P72,000.00÷4). legitimate parents or ascendants and by an
adopted child, the latter shall not have more

60 | P a g e
successional rights than an acknowledged
natural child. (Art. 39, No. 4, P.D. No. 603)
The reason behind this law is that it would Question:
be most unfair to accord more successional “A” died without a will survived by: (a) his
rights to the adopted, who is only artificially widow, “W”; (b) his legitimate brother, “B”
related to the decedent, than those who are and “C”; and (c) his nephews, “E” and “F”,
naturally related to him by blood in the direct who are the children of a deceased sister,
ascending line. “D.” The net remainder of his estate is
True, the exception as provided for in the P24,000.00. How shall such estate be
Welfare Code speaks only of the adopted distributed?
child concurring with the legitimate parents Answer:
or ascendants. The surviving spouse is not
included. However, this does not mean that According to Art. 1001 of the NCC, “should
it cannot also be applied to a situation brothers and sisters or their children survive
where the adopted child concurs not only with the widow or widower, the latter shall
with legitimate parents or ascendants but be entitled to 1/2 of the inheritance and the
also with the surviving spouse. The brothers and sisters or their children to the
exception in such a case is still applicable. other half.” Consequently, the estate shall
The reasons for this are as follows: be divided as follows:

1. The view that the legitimate parents “W” ……. P12,000.00 in her own right
or ascendants should be excluded
would defeat the intent of the “B” ……. P4,000.00 in his own right
framers of the law.
“C” ……. P4,000.00 in his own right
2. Under the NCC (Art. 893), the
surviving spouse does not exclude “E” ……. P2,000.00 by right of representation
the legitimate parents or ascendants
of the decedent. Hence, the “F” ……. P2,000.00 by right of representation
presence of M, the mother of H,
P24,000.00
should not affect the application of
the exception.
3. Furthermore, the language of the
law is clear. It does not require that Question:
the concurring heirs should be the
“A” died without a will survived by: (a) his
adopted child and the legitimate
widow, “W”; (b) “X” and “Y,” children of a
parents or ascendants only. A
deceased legitimate brother, “B”; and (c)
contrary view cannot be presumed.
“Z,” child of a deceased legitimate sister,
Art. 1000 of the NCC, Is, therefore, “C.” The net remainder of his estate is
applicable. M shall be entitled to 1/2 of the P24,000.00. How shall such estate be
estate of H; AS, to 1/4; and W, to 1/4. distributed?

(Del Rosario vs. Conanan, 76 SCRA 136) Answer:

61 | P a g e
According to Art. 1001 of the NCC, 1/2 of spouse, the only collaterals who can inherit
the estate shall pass to the widow, while the from him are brothers and sisters, nephews
other 1/2 shall pass to the three nephews in and nieces. (Arts. 993, 994, NCC) Uncles
their own right. The latter do not inherit by and aunts, whether legitimate or illegitimate
right of representation because they do not are not legal heirs of the decedents, and
concur with brothers or sisters of the therefore, cannot inherit from him. Neither
decedent. (Art. 975, NCC) Hence, the can A’s half-brother, who is the legitimate
estate shall be divided as follows: child of his father with a woman other than
A’s mother, inherit from him. This is clear
“W” ………. P12,000.00 from the principle of absolute separation –
the so-called impenetrable barrier –
“X” ………. P4,000.00
between legitimates and illegitimates
“Y” ………. P4,000.00 enunciated in Art. 992 of the NCC. This
article declares and illegitimate child has no
“Z” ………. P4,000.00 right to inherit ab intestate from the
legitimate children and relatives of his father
P12,000.00
or mother; nor shall such children or
relatives inherit in the same manner from
the illegitimate child.
Question:
There being no legal heirs who can qualify,
A, an illegitimate (spurious) child, died A’s fortune shall pass to the State. (Art.
intestate. His nearest surviving relatives are: 1011, NCC)
an uncle from the maternal side, and a half-
brother who is the legitimate child of his
father with a woman other than the mother
Question:
of A. Can these relatives inherit the fortune
left by the deceased? Explain your answer. X is the adulterous son of A and B. When
he died in 1970 without a will, he was
Answer:
survived only by his father A and his widow,
Both relatives cannot inherit the fortune left W. How would you divide his estate valued
by the deceased. at P100,000.00? (1977)

A’s uncle from the maternal line cannot Answer:

inherit from him. Even assuming that such
A shall be entitled to 1/2 of the estate, or
uncle is an illegitimate brother of A’s
P50,000.00, while W shall also be entitled to
mother, and therefore, there is no violation
1/2, or P50,000.00. Of course, this
of the principle of absolute separation
presupposes that A had previously
between the members of the legitimate
acknowledged X and that the latter had
family and the members of the illegitimate
given his consent thereto.
family as embodied in Art. 992 of the NCC,
said uncle cannot inherit from A, because of True, there is no provision of the NCC which
the principle that when an illegitimate directly governs this situation, but the above
person, such as A, dies intestate without solution is the most logical and the most
descendants, or parents, or surviving

62 | P a g e
equitable. In testamentary succession, the Answer:
legitime of A is 1/4, while the legitime of W
is also 1/4. (Art. 903, NCC) In intestate The division of the estate of A shall be
succession, had A been a legitimate parent, made per stirpes. (Art. 974, NCC) This is so
his share would have been only 1/2 while because the above-mentioned nephews
the share of W would also be 1/2. (Art. 997, and nieces of A shall inherit from him by
NCC) These rules should be applied by right of representation. (Art. 972, 975, NCC)
analogy. The division, therefore, shall be as follows:

C ………. P20,000.00 in his own right

Question: E ………. P20,000.00 in his own right

A died intestate survived by: (1) B, a brother G ………. P20,000.00 by right of representation
of the full blood; and (2) C, D, E, and F, H ………. P20,000.00 by right of representation
brothers of the half-blood. The net value of
his estate is P120,000.00. Divide the estate. I ………. P10,000.00 by right of representation

Answer: J ………. P10,000.00 by right of representation

According to Art. 1006 of the NCC: “Should K ………. P10,000.00 by right of representation
brothers and sisters of the full-blood survive
together with brothers and sisters of the L ………. P10,000.00 by right of representation
half-blood, the former shall be entitled to a
Estate P120,000.00
share double that of the latter.”
Consequently, in the above problem, the
estate of A shall be divided among B, C, D,
E, and F in the proportion of [Link]. In Question:
other words, B shall be entitled to 2/6 or 1/3
Suppose that in the above problem, not only
of P120,000.00, or P40,000.00; C, to 1/6 of
B, D and F, but even C and E predeceased
P120,000.00, or P20,000.00; D, to 1/6 of
A, and the only survivors are the six
P120,000.00, or P20,000.00; E, to 1/6 of
nephews, G, H, I, J, K, and L, how shall the
P120,000.00 , or P20,000.00; and F, to 1/6
estate be divided?
of P120,000.00, or P20,000.00.
Answer:

The rule of double share for full-blood

Question:
collaterals shall be applied. In other words,
Suppose that in the above problem, out of those of the full-blood shall be entitled to a
the five brothers, only C and E survived A. share double that of those of the half-blood.
B, D, and F predeceased him, but B is Although this rule is not expressly stated by
survived by his legitimate children, G and H; the NCC, it can be inferred from the second
D is survived by his legitimate children, I paragraph of Art. 1009, which declares that
and J; and F is survived by his legitimate in the absence of brother and sisters or
children, K and L. How shall the estate of A children of brothers and sisters, the other
now be divided? collateral relatives shall succeed to the

63 | P a g e
estate without distinction of lies or (1) After paying the legal obligations of the
preference among them by reason of estate, I will give Ronnie, as full-blood
relationship by the whole blood. From this brother of Don, 2/3 of the net estate, twice
provision, we can deduce the rule that if the share of Michelle, the half-sister who
there are nephews and nieces surviving the shall receive 1/3. Roshelle will not receive
decedent, relationship by the whole or half- anything as she is not a legal heir. (Art.
blood, becomes material in the distribution 1006, NCC)
or division of the estate. (7 Manresa 158-
159) This view advocated by Manresa has (2) Jayson will be entitled to the entire P12
been applied by our Supreme Court in Million as the brother and sister will be
Padura vs. Baldovino (105 Phil. 1065), and excluded by a legitimate son of the
in Bicomong vs. Almanza (80 SCRA 421). decedent. This follows the principle of
proximity where the nearer excludes the
Therefore, in the instant problem, the estate farthers.
of A shall be divided among G, H, I, J, K
and L in the proportion of [Link]. In (Suggested Answers to the 2006 Bar
other words, G shall be entitled to 2/8 or 1/4 Examination Question, PALS)
of P120,000.00 or P30,000.00; H, also to
2/8 or 1/4 of P120,000.00 or P30,000.00; I
to 1/8 of P120,000.00, or P15,000.00; J, Question:
also to 1/8 of P120,000.00, or P15,000.00;
K also to 1/8 of P120,000.00, or A, deceased, is survived by a half-sister B
P15,000.00; and L, also to 1/8 of on his father’s side of an aunt C, his
P120,000.00, or P15,000.00. mother’s sister. He left as his only property
that which was inherited from his mother.
He died intestate. Who shall succeed to A’s
estate? Reasons. (1978)
Question:
Answer:
Don died after executing a Last Will and
Testament leaving his estate valued at P12 B shall succeed to A’s estate. The law of
Million to his common-Iaw wife Roshelle. He intestate succession is explicit. Since both B
is survived by his brother Ronie and his and C are collateral relatives of the
half-sister Michelle. decedent A, therefore, the rule of proximity
is applicable. Relatives nearest in degree
(1) If Don failed to execute a will during his exclude the more distant ones. B is a
lifetime, as his lawyer, how will you second degree relative of A, while C is a
distribute his estate? Explain. third degree relative. Besides, under the
(2) Assuming he died intestate survived by general order of intestate succession,
his brother Ronie, his half-sister Michelle, brothers and sisters, whether of the full or
and his legitimate son Jayson, how will you. half-blood always exclude uncles or aunts.
distribute his estate? Explain. (2006) (Arts. 1004-1109, NCC)

Answer: The fact that the entire estate consists only

of property originating from the decedent’s

64 | P a g e
mother is of no moment. It is obvious that blood relative is immaterial. This alone does
the property is not reservable. not disqualify him from being his aunts’ heir.
The determination of whether the
relationship is of the full or half-blood is
important only to determine the extent of the
Question:
share of the survivors.
“A” died without a will survived by: (a) “B,” a
(Heirs of Uriarte vs. CA, G.R. No. 116775,
brother of the full blood; (b) “C” and “D,”
January 22, 1988)
brothers of the half-blood: (c) “X,” a son of
“E,” a deceased brother of the half-blood;
and (d) “Y,” a grandson of “F,” another
deceased brother of the half-blood. The net Question:
remainder of the estate is P25,000.00. How
shall such estate be distributed? What conditions must exist in order that the
estate of the decedent shall be escheated in
Answer: favor of the State?

It must be observed that “should brothers Answer:

and sisters of the full blood survive together
with brothers and sisters of the half-blood, According to Sec. 1, Rule 91 of the Revised
the former shall be entitled to a share Rules of Court, there are three conditions
double that of the latter.” (Arts. 1006, 972, for escheat. They are: first, the decedent
975, NCC) Consequently, the estate shall must die intestate; second, he left real
be distributed as follows: and/or personal property in the Philippines;
and third, he leaves no heir or person
“B” ……….P10,000.00 in his own right; entitled to such real and personal property.

“C” ……….P5,000.00 in his own right;

“D”………. P5,000.00 in his own right;

“X”………. P5,000.00 by right of representation;

P25,000.00 D. PROVISIONS COMMON TO TESTATE

AND INTESTATE SUCCESSION

Question:
D. 1 Right of Accretion
When may a nephew of a person inherit
from the decedent? Question:
What is accretion?
Answer:

A nephew may inherit from his uncle or Answer:

aunt, if no descendant, ascendant, or It is a right by virtue of which, when two or
spouse survived the decedent. (Arts. 1003, more persons are called to the same
1005, 1008, NCC) That he is only a half- inheritance, devise or legacy, the part

65 | P a g e
assigned to one who renounces or cannot present action for interpleader against both
receive his share or who died before the the naked owner and surviving
testator is added or incorporated to that of usufructuaries to compel them to interplead
his co-heirs, co devisees, or co-legatees. and litigate their conflicting claims. If you
(Article 1015 of the New Civil Code) were the judge how will you rule the case?

Question: Answer:
In a duly probated last will and testament of I will rule in favor of the eleven surviving
A, she gave the naked ownership of a usufructuaries.
fishpond owned by her to her sister B while
its usufruct to the children of her cousins D, Death of one of the usufructuaries before
E and F. The fishpond is situated at a barrio end of usufruct results in accretion among
of Carmen, Cebu. usufructuaries. There is accretion among
the usufructuaries who are constituted at
The children of D, E and F turned out to be the same time when one of them dies
fourteen, namely: G, H, I, J, K, L, M, N, O, before the end of the usufruct. The only
P, Q, R, S and T. On the other hand, B, the exception is if the usufruct is constituted in a
naked owner, bequeathed in her will all her last will and testament and the testator
rights to the fishpond to Z. makes a contrary provision. In the instant
case, there is none. On the contrary, the
The fourteen usufructuaries leased the testatrix constituted the usufruct in favor of
fishpond first to one X who used to give the children of her three cousins with the
them proportionately the usufruct particular instruction that they are the only
corresponding to them. During the term of ones to enjoy the same as long as they live,
the lease, however, three of the from which it can be implied that, should
usufructuaries died, namely, G, H and K, any of them die, the share of the latter shall
and so, upon their death, both the naked accrue to the surviving ones. These
owner and the remaining usufructuaries provisions of the will are clear. They do not
claimed the shares corresponding to the admit of any other interpretation.
deceased usufructuaries in the amount of
(P15,000.00). Because of these conflicting I, J, L, M, N, O, P, Q, R, S and T hereby
claims, the lessee withheld said amount. declared to be entitled to the shares of the
three deceased usufructuaries and, hence,
Subsequently, on May 1962, the surviving X and Rodrigo de Dios are hereby ordered
usufructuaries leased the fishpond to one to pay to them the money withheld by them
Rodrigo de Dios who, after executing the respectively representing the shares of the
contract of lease, came to know of the deceased usufructuaries.
existing conflicting claims, and not knowing (Policarpio, et al. vs. Salamat, et al., 16
to whom of the claimants the shares of the SCRA 154, No. L-21809 January 31, 1966)
deceased usufructuaries should be paid,
said lessee was also constrained to Question:
withhold the corresponding part of the When does the right of accretion take place
usufruct of the property. So, on November in testamentary succession?
1962, the two lessees commenced the

66 | P a g e
Answer: accretion shall take place: there must be
The right of accretion takes place in a vacancy in the inheritance (caused by
testamentary succession when: predecease, incapacity, or repudiation)
1. That two or more persons be called (JURADO, Succession, supra at 464)
to the same inheritance, or to the
same portion thereof, pro indiviso; Question:
Note: As a consequence of the first A died intestate survived by: his legitimate
requisite, the following parents, C and D; his widow, E; and his
circumstances are necessary: acknowledged natural children, X and Y.
a. Unity in the object, that is, a The net value of his estate is P1,080,000.
single thing, whether it be an Suppose that C repudiated his inheritance,
inheritance, a portion thereof, how shall the estate be divided?
or a specific thing;
b. Plurality in the subject matter, Answer:
that is, several persons are According to Art. 1018 of the Civil Code, this
called to that single thing; vacant portion shall accrue to C’s co-heirs.
and Therefore, applying Art. 1019 of the Civil
c. Absence of any designation Code, the P270,000, which would have
as to the share of each thing. passed to C, shall now pass to D, E, X, and
(JURADO, Succession, Y in the proportion of [Link]. In other
supra at 460-461) words, D shall be entitled to two-sixth (2/6)
2. There must be a vacancy in the or one-third (1/3) of P270,000 by right of
inheritance legacy or devise (caused accretion; E, twosixths (2/6) or one-third
by predecease, incapacity, (1/3) of P270,000 by right of accretion; X, to
repudiation, non-fulfillment of one-sixth (1/6) of P270,000 by right of
suspensive condition attached to the accretion; and Y, to one-sixth (1/6) of
institution of an heir or the P270,000 by right of accretion. The
designation of a legatee or devisee distribution shall, therefore, be as follows:
or void or ineffective testamentary P270,000, as legal heir
D
dispositions) 90,000, by right of accretion
(JURADO, Succession, supra at 460 270,000, as legal heir
E
and 464); (Article 1016 of the New 90,000, by right of accretion
Civil Code) 135,000, as legal heir
X
45,000, by right of accretion
135,000, as legal heir
Question: Y
45,000, by right of accretion
When does the right of accretion take place
in intestate succession? Question:
D left a will naming his three adulterous
Answer: children, J, Y, and M as legatees. The
In legal or intestate succession, since by the properties involved were situated in Iloilo
very nature of the succession, the legal City and the Province of Negros Occidental.
heirs are called by the law to the same M sold her whole share to her co-legatees,
inheritance, pro indiviso, only the one leaving J and Y as sole co-owners. After the
requisite is essential in order that the right if project of partition was approved, Y sold to

67 | P a g e
his co-legatee and co-owner J his one-half unselfish, and it is not affected with the
share of the estate situated in Iloilo City. J public interest but on the contrary, is rather
died without issue, leaving a will, whereby against public policy in that it limits the right
she bequeathed all her properties in Iloilo of ownership and free disposal of private
City to the X sisters and her properties in property, said condition may not be
Negros Occidental, one-fourth to Y and the enforced at the instance of the State. It may
remaining three-fourths to other legatees. be enforced only by the legatees who have
With the conformity of all the legatees, an interest in its enforcement; but surely not
including Y, a project of partition was by the legatee who from the very beginning
submitted and approved by the court, and not only had violated that condition but had
the properties were distributed among the renounced his right to it.
legatees. Y now insists that by virtue of the (Ynza vs. Rodriguez, et al., 95 Phil. 347,
condition imposed in their father's will, he No. L-6395 June 30, 1954)
became the absolute owner of all the
properties left by D. Is Y correct? Question:
What are the effects of prior death,
Answer: incapacity, disinheritance or repudiation of
Yes, Y is correct. Under Article 982 of the the heir as to the successional rights of
old Civil Code, there is right of accretion in heirs in testamentary and intestate
testamentary succession when two or more succession?
persons are called to the same inheritance
or to the same portion thereof without Answer:
special designation of parts, and one of the The following are the effects of prior death,
persons so called dies before the testator or incapacity, disinheritance or repudiation of
renounces the inheritance or be incapable the heir as to the successional rights of
of receiving it. In the present case, the three heirs in testamentary and intestate
persons called to the inheritance survived succession:
the testator. However, the condition
imposed in the will of D might possibly be Cause of Testamentary Succession Intestate
Vacancy Legitime Free Portion Succession
regarded as a charge or trust limiting the Predeceas Represent Accretion Representati
ownership and disposition of the one-third e ation Intestate on
Intestate Succession Intestate
allotted to each of the legatees. The
Successio Succession
intention of the testator might have been to n
prevent the property from going into the Incapacity Represent Accretion Representati
ation Intestate on
hands of strangers and at the same time Intestate Succession Intestate
giving a right to the surviving legatee or Successio Succession
legatees the right to receive intact the one- n
Disinherita Represent - -
third portion of the legatee who dies without nce ation
issue. This right may naturally be renounced Intestate
Successio
or waived by any of the legatees who n
stands to benefit by it; and as to the Repudiatio Intestate Accretion Accretion
n Successio
condition that none of the properties or
n
estate of D should go into the hands of
strangers, since it is a condition not entirely

68 | P a g e
Question: portion per stirpes, since they inherit by
X died intestate survived by: (1) B and C, representation.
his legitimate children; (2) D, E, F and G,
legitimate children of A, a legitimate child of Question:
X who predeceased him; (3) H and I, The testator executed a will instituting his
legitimate children of B; and (4) J and K, three legitimate children, A, B, and C, as his
legitimate children of C. B, however, had universal heirs. According to the will, A shall
been previously convicted of an attempt be entitled to 1/2 of the entire free portion,
upon the life of his father more than ten B, 1/4, and C, the remainder. C, however,
years ago. C, on the other hand, repudiated cannot inherit from the testator, because he
his inheritance. If the hereditary estate is had committed an act of unworthiness. He
worth P120,000, how shall it be divided? has two legitimate children of his own, D
and E. Assuming that the net remainder of
Answer: the estate after the testator’s death is
The division of the estate shall be as P120,000, how shall it be distributed?
follows:
D P 15,000 Answer:
E 15,000 The distribution of the estate will be as
F 15,000 follows:
G 15,000
P20,000, as compulsory heir
H 30,000
A 30,000, as voluntary heir
I 30,000
10,000, by right of accretion
P 120,000
20,000, as compulsory heir
B 15,000, as voluntary heir
Since A predeceased his father X, his
5,000, by right of accretion
legitimate children D, E, F and G shall now D 10,000, by right of representation
represent him in the succession. The same E 10,000, by right of representation
is true in the case of B. Since he is
incapacitated to inherit from his father As a result of C’s incapacity, there is now a
because of an act of unworthiness, his vacancy in the inheritance covering his
legitimate children H and I shall represent legitime, to which he would have been
him in the succession. It is different in the entitled by operation of law, amounting to
case of C. An heir who repudiates his P20,000, and his share of the free portion,
inheritance cannot be represented (Article to which he would have been entitled by
977, of the New Civil Code). will, amounting to P15,000. As far as the
legitime is concerned, the amount shall
Therefore, the portion which C repudiated pass to D and E by right of representation.
shall now accrue to his co-heirs (Articles As far as the free portion of P15,000 is
1018 and 1019, of the New Civil Code). But concerned, the amount shall pass to A and
his co-heir A is dead; his other co-heir B is B by right of accretion. D and E shall divide
incapacitated. There can, therefore, be no the P20,000 equally. A and B, on the other
accretion. Hence, the vacant portion shall hand, shall divide the P15,000 in the
pass to the legal heirs of the decedent. The proportion of 2:1. In other words, A shall be
legal heirs are, of course, the grandchildren, entitled to 2/3 of P15,000, or P10.000, while
D, E, F, G, H and I, who will divide such

69 | P a g e
B shall be entitled to 1/3 of P15,000, or grandmother W. Despite enjoying
P5,000. continuous possession of the land,
(Article 1021 of the New Civil Code) however, their parents failed to register the
same. On June 1942, the first marriage was
dissolved with the death of X.
D.2 Capacity to Succeed by will or
intestacy On November 1967, Z entered into a
second marriage with Y who then gave birth
Question: to F and J. According to the respondents, it
What are the requisites of capacity to was only during this time that Z filed an
succeed? application for free patent over the parcel of
land with the Bureau of Lands. Z committed
Answer: fraud in such application by claiming sole
The requisites of capacity to succeed are and exclusive ownership over the land since
the following: 1935 and concealing the fact that he had
1. The heir, legatee or devisee must be three children with his first spouse. As a
living or in existence at the moment result, on September 1974, the Register of
the succession opens; and Deeds of Bulacan issued Original Certificate
2. He must not be incapacitated or of Title (OCT) No. P-2871 in favor of Z only.
disqualified by law to succeed.
(Articles 1024 and 1025 of the New Civil On February 1984, Z sold the said parcel of
Code) land to F as evidenced by a Deed of Sale
executed by both Z and Y. Accordingly, the
Question: Register of Deeds of Bulacan cancelled
In a Complaint for Annulment of Sale and OCT No. P-2871 and issued Transfer
Reconveyance of Property filed with the Certificate of Title (TCT) No. 283321 in the
RTC on June 1991, the respondents C, D, name of F. On December 27, 1989, Z died.
and E asserted their ownership over a When is the capacity of the heir to inherit
certain parcel of land against the petitioners determined?
A and B. The said lot with an area of 1,266
square meters and specifically identified as Answer:
Lot 1132, Cad. 333, Bigaa Cadastre The capacity of the heir is determined as of
situated in Brgy. Burol 2nd, Municipality of the time the decedent died (Art. 1034). The
Balagtas, Province of Bulacan, was rights to the succession are transmitted
allegedly acquired by the respondents from from the moment of the death of the
their mother X, through succession as the decedent. The legitime is to be computed as
latter’s compulsory heirs. of the same moment (Art. 908), and so is
the inofficiousness of the donation inter
According to the respondents, their father, Z vivos (Art. 771).
contracted two marriages during his lifetime. (Calalang-Parulan vs. Calalang-Garcia, 725
The first marriage was with their mother X. SCRA 402, G.R. No. 184148 June 9, 2014)
During the subsistence of this marriage,
their parents acquired the above-mentioned Question:
parcel of land from their maternal

70 | P a g e
Who are the persons incapable of 5. Any physician, surgeon, nurse,
succeeding for undue influence or interest? health officer or druggist who took
care of the testator during his last
Answer: illness;
The following are the persons incapable of 6. Individuals, associations and
succeeding for undue influence or interest: corporations not permitted by law to
1. Priest who heard the confession of inherit.
the testator during his last illness, or (Article 1027 of the New Civil Code)
the minister of the gospel who
extended spiritual aid to him during Question:
the same period; Who are the persons incapable of
Note: The fact that the testator died succeeding based on morality or public
from some other cause does not policy?
necessarily exclude the application Answer:
of the disqualification. What is The following are the persons incapable of
essential is that there must be an succeeding based on morality or public
imminent or impending danger of the policy:
illness being the last as far as the 1. Those made in favor of a person
testator is concerned at the time he with whom the testator was guilty of
executed the will. adultery or concubinage at the time
(JURADO, Succession, supra at of making the will;
484) Note: Previous criminal conviction is
2. The relatives of such priest or not necessary
minister of the gospel within the 2. Those made in consideration of a
fourth degree, the church, order, crime of which both the testator and
chapter, community, organization, or the beneficiary have been found
institution to which such priest or guilty; and
minister may belong; Note: Previous criminal conviction is
3. A guardian with respect to necessary
testamentary dispositions given by a 3. Those made in favor of a public
ward in his favor before the final officer or his spouse, descendants
accounts of the guardianship have and ascendants, by reason of his
been approved, even if the testator public office.
should die after the approval thereof; (Article 739 of the New Civil Code)
nevertheless, any provision made by
the ward in favor of the guardian Question:
when the latter is his ascendant, Who are the persons incapable of
descendant, brother, sister, or succeeding based on acts of unworthiness?
spouse, shall be valid;
4. Any attesting witness to the Answer:
execution of a will, the spouse, The following are the persons incapable of
parents, or children, or any one succeeding based on acts of unworthiness:
claiming under such witness, 1. Parents who have abandoned their
spouse, parents, or children; children or induced their daughters

71 | P a g e
 to lead a corrupt or immoral life, or
attempted against their virtue; Answer:
2. Any person who has been convicted Yes, the legacy to E is valid. The act of A by
of an attempt against the life of the giving a legacy to E thru J is already an
testator, his or her spouse, implied condonation of the act of the son
descendants, or ascendants; attempting to his life, being incapacitated to
3. Any person who has accused the inherit by unworthiness.
testator of a crime for which the law (Article 1033 of the New Civil Code)
prescribes imprisonment for six
years or more, if the accusation has Question:
been found groundless; Who are the persons incapable of
4. Any heir of full age who, having succeeding by operation of law?
knowledge of the violent death of the
testator, should fail to report it to an Answer:
officer of the law within a month, The following are the persons incapable of
unless the authorities have already succeeding by operation of law:
taken action; this prohibition shall 1. Incapacity of the guilty spouse to
not apply to cases wherein, inherit from the innocent spouse if
according to law, there is no there is a decree of legal separation;
obligation to make an accusation; and
5. Any person convicted of adultery or 2. Incapacity of illegitimate children and
concubinage with the spouse of the legitimate relatives of the decedent
testator; to inherit from each other.
6. Any person who by fraud, violence, (JURADO, Succession, supra at 482)
intimidation, or undue influence
should cause the testator to make a Question:
will or to change one already made; Is there a prescriptive period for the
7. Any person who by the same means declaration of incapacity of an heir?
prevents another from making a will,
or from revoking one already made, Answer:
or who supplants, conceals, or alters Yes, the action for a declaration if incapacity
the latter's will; and for the recovery of the inheritance,
8. Any person who falsifies or forges a devise or legacy shall be brought within five
supposed will of the decedent. years from the time the disqualified person
(Article 1032 of the New Civil Code) took possession thereof. It may be brought
by anyone who may have an interest in the
Question: succession.
A wants to give his son E, who had (Article 1040 of the New Civil Code)
attempted on his life and pending judicial
action. In spite
of knowledge, he still gives a legacy to his
another son J, with the stipulation that J will D.3 – Acceptance and Repudiation of
give the legacy to E. Is the legacy to E the Inheritance
valid?

72 | P a g e
The acceptance or repudiation of the Question: What are the ways by which the
inheritance is a purely voluntary and free act repudiation of the inheritance, legacy or
(NCC, Art. 1041). devise may be made?

Answer:

Question: What are the principal 1. By means of a public instrument;

characteristics of acceptance and
2. By means of an authentic instrument; or
repudiation?
3. By means of a petition presented to the
Answer:
court having jurisdiction over the
1. It is voluntary and free; testamentary or intestate proceedings.
[Article 1051, NCC]
2. It is retroactive; and

3. Once made, it is irrevocable.

Question: What are the effects of
repudiation if an heir is both a testate and
Question: What are the instances when legal heir?
Inheritance is deemed accepted?
Answer:
Answer:
If an heir is both a testate and legal heir and
1. When the heir sells, donates, or assigns he repudiated the inheritance as a testate
his rights; heir, he is understood to have repudiated in
both capacities.
2. When the heir renounces it for the benefit
of one or more heirs; However, should he repudiate as a legal
heir, without knowledge of being a testate
3. When renunciation is in favor of all heirs heir, he may still accept the inheritance as a
indiscriminately for consideration; or testate heir. [Article 1055, NCC]
4. Other tacit acts of acceptance:

a. Heir demands partition of the inheritance; Question: What is the remedy if the heir
b. Heir alienates some objects of the repudiates the inheritance to the prejudice
inheritance; of his creditors?

c. Acts of preservation or administration if, Answer:

through such acts, the title or capacity of the If the heir repudiates the inheritance to the
heir has been assumed; or prejudice of his own creditors, the latter may
d. Under Art. 1057 of the NCC, failure to petition the court to authorize them to
signify acceptance or repudiation within 30 accept it in the name of the heir. [Article
days after an order of distribution by the 1052, NCC]
probate court. Requisites:

73 | P a g e
1. The heir who repudiated his inheritance heirs are allowed by law to renounce their
must have been indebted at the time when inheritance. The law further provides for the
the repudiation is made; specific manner to repudiate an inheritance.

2. The heir-debtor must have repudiated his Under article 1051 of the Civil Code, “the
inheritance according to the formalities repudiation of an inheritance shall be made
prescribed by law; in a public or authentic instrument, or by
petition presented to the court having
3. Such act of repudiation must be
jurisdiction over the testamentary or
prejudicial to the creditor or creditors; and
intestate proceedings.” This provision
4. There must be judicial authorization specifies the form and procedure to legally
(NCC, Art. 1052). repudiate testamentary inheritance.

Thus, considering Vea’s intention to give up

her share in her brother’s last will, it is not
Question: enough to merely state such intention. The
Vea was informed that in her brother’s last law requires that Vea should execute a
will and testament, she was one of the public document containing her intention to
recipients of a portion of an estate. She was repudiate or through filing of a petition in
very close to her brother until his very last court having jurisdiction in the settlement of
days. After carefully thinking it through, Vea her brother’s last will. It is required by law
decided that she will not accept the that she follows this form and procedure in
inheritance which her brother specified in order for her repudiation to have a legal
his will. Vea knows that her brother’s family effect in her brother’s last will and
needs it more than she does especially testament.
because she already owed him a lot since
her brother was the one who provided for
her school fees while she was still studying. Question:
Because of this, Vea comes to you for
Choco is indebted to Honey for quite a sum
advice if it is possible for her to decline such
of money and failed to pay the same despite
gift and what she can do to formally do the
demands. Choco learned that he is to
same.
receive inheritance according to his Father’s
As counsel for Vea, what advice will you last will and testament but he resorted to
give her? repudiation in order to evade his legal
obligation to his creditor, Honey.
Answer:
What is the legal remedy of Honey?
As counsel for Vea, I will inform her that the
law recognizes the right of a testator to Answer:
decide who receives portions of his estate
Honey as the creditor is allowed by law to
upon his demise. However, the law also
file a petition to the court to authorize her to
recognizes the right of the intended
accept the inheritance in the name of the
recipients to decline and repudiate whatever
heir, Choco.
will be given to them based on the last will
and testament. In other words, testamentary

74 | P a g e
The law recognizes the right of an heir to capacities. However, is he repudiates as a
repudiate his or her share in the inheritance. legal heir,without the knowledge of being a
However, the right to repudiate should not testate heir, he may still accept the
be made at the whim of an heir who is to inheritance as a testate heir.
receive such inheritance. This means that
Here, Shia only repudiated the inheritance
repudiation should not be resorted to by an
in her capacity as a legal heir without
heir in order to evade his legal obligations to
knowledge that she was also a testate heir.
his creditors. Should the heir opted to
repudiate the inheritance with the aim to Therefore, Shia in her capacity as a testate
evade his creditors, the latter are allowed by heir may still accept the inheritance.
law to file a petition to the court to authorize
them to accept the inheritance in the name
of the heir. Question:
Thus, even if the heir repudiates the Sick and tired of her mother's repeated
inheritance to the prejudice of his creditors, physical and emotional abuse, Ginger ran
the inheritance may be accepted by his away from home and promised herself that
creditors instead. The acceptance of the she would never accept anything that
creditors shall benefit them only to the comes from her mother. To make sure of
extent sufficient to cover the amount of their this, Ginger wanted to formally repudiate
credits. her inheritance as a legal heir.

Is this possible? When should repudiation

Question: be made?

Shia, a legitimate child of the decedent Answer:

decided to repudiate her inheritance as a No. Ginger cannot repudiate her inheritance
legal heir bearing in mind that her younger since her mother is still living.
brothers and sisters need it more than she
does. Later on, she learned that she was The law provides that the repudiation of an
also a testate heir and thought that her inheritance can be made only when the heir
father, the deceased would truly be sad if is certain of the death of the person from
she were to decline what he wanted to give whom he is to inherit, and of his right to
her. inheritance. This is because prior to the
death of said person, the heir has no right to
Can Shia still accept the inheritance as a the inheritance.
testate heir?
Also, within thirty (30) days after the court
Answer: has issued an order for the distribution of
Yes. Shia may still accept the inheritance as the estate in accordance with the rules of
a testate heir. court, the heirs shall signify to the same
court whether they accept or repudiate the
Under the law, is an heir is both a testate inheritance. If there was no repudiation
and legal heir, the repudiation of the within that time, all heirs are deemed to
inheritance as a testate heir, he is have accepted the inheritance.
understood to have repudiated in both

75 | P a g e
Thus, Ginger may not formally repudiate To collate is to bring back or to return to the
since she has no right to the inheritance as hereditary mass in fact or by fiction property
of the moment. which came from the estate of the
decedent, during his lifetime by donation or
other gratuitous title but which the law
Question: considers as an advance from the
inheritance. (Art. 1061, CC)
Henry the Father of Mia, declared that he
does not care whether or not his ailing It is the act by virtue of which, the
Father, Tom, lives or dies due to the fact compulsory heir who concurs with other
that he was abandoned as a child and had compulsory heirs in the inheritance brings
to fend for himself at such a very young back to the common hereditary mass the
age. Henry further declared that his own property which they may have received from
family members should never accept the testator so that a division may be
anything from Tom to avoid conflict in the effected according to law and the will of the
family. After a while, Tom finally passed on testator.
leaving everything to Henry. However, after
In reducing inofficious donations, the last to
a week, Henry was involved in an accident
be donated should be the first to be
which unfortunately took his life. Mia, now
reduced.
comes to you as her counsel and asks if the
declaration of her father constitutes as a Rationale for collation: If donations
repudiation of his inheritance from Tom.
inter vivos will not be collated, then the rule
What will be your advice? on legitimes shall be circumvented or
disregarded.
Answer:
Question: What are the operations related
As the counsel for Mia, I will inform her that
to collation?
the law provides that if the heir has died
without formally repudiating the inheritance, Answer:
his right to receive or decline the inheritance
(1) Collation – adding to the mass of the
shall be transmitted to his heirs.
hereditary estate the value of the donation
Here, Henry did not formally repudiate his or gratuitous disposition.
inheritance before he met his demise and
(2) Imputing or Charging – crediting the
so the right to receive or decline the
donation as an advance on the legitime (if
inheritance shall be transmitted to his heirs.
the donee is a compulsory heir) or on the
This, Mia as the heir of Henry has now the free portion (if the done is a stranger, i.e.,
right to receiver decline the inheritance of not a compulsory heir)
the latter from Tom.
(3) Reduction – determining to what extent
D.4 – Collation the donation will remain and to what extent
it is excessive or inofficious.

Question: What is the concept of collation. (4) Restitution – returning or the act of
payment of the excess to the mass of
Answer: hereditary estate.

76 | P a g e
 but when their collation is required, the sum
which the child would have spent if he had
Question: Who are the persons obliged to
lived in the house and company of his
collate?
parents shall be deducted therefrom. [Art.
Answer: 1068, CC]

General rule: Compulsory heirs (4) Any sums paid by a parent in

satisfaction of the debts of his children,
Exceptions: election expenses, fines, and similar
(1) When the testator should have so expenses shall be brought to collation. [Art.
expressly provided [Art. 1062, CC] 1069, CC]

(2) When the compulsory heir should have Note: Only the value of the thing donated
repudiated his inheritance [Art. 1062, CC] shall be brought to collation.

Grandchildren who survive with their uncles, Question: What are the properties not
aunts, or first cousins and inherit by right of subject to collation?
representation [Art. 1064, CC] Answer:
Note: Grandchildren may inherit from their Absolutely no collation expenses for
grandparents in their own right, i.e., as heirs support, education (only elementary and
next in degree, and not by right of secondary), medical attendance, even in
representation if their parent repudiates the extraordinary illness, apprenticeship,
inheritance of the grandparent, as no living ordinary equipment, or customary gifts [Art.
person can be represented except in cases 1067, CC]
of disinheritance and incapacity. In this
case, the grandchildren are not obliged to Generally, not imputable to legitime/ cannot
bring to collation what their parent has be collated, subject to exceptions
received gratuitously from their grandparent.
(1) Expenses incurred by parents in giving
Surviving spouse is not obliged to collate.
their children professional, vocational or
other career unless the parents so provide,
or unless they impair the legitime. [Art.
Question: What are those to be collated? 1067, CC]
Answer: (2) Wedding gifts by parents and
(1) Any property or right received by ascendants, consisting jewelry, clothing and
gratuitous title during the testator’s lifetime outfit, except when they exceed 1/10 of the
[Art. 1061, CC] sum disposable by will. [Art. 1070, CC]

(2) All that they may have received from the (3) Neither shall donations to the spouse of
decedent during his lifetime. [Art. 1061, CC] the child be brought to collation; but if they
have been given by the parent to the
(3) Expenses incurred by the parents in spouses jointly, the child shall be obliged to
giving their children a professional, bring to collation one-half of the thing
vocational or other career shall not be donated. [Art. 1066, CC]
brought to collation unless the parents so
provide, or unless they impair the legitime;

77 | P a g e
Note: Parents are not obliged to bring to place or make his will suggest that collation
collation in the inheritance of their was not intended.
ascendants any property which may have
been donated by the latter to their children.
[Art. 1065, CC] D.5 Partition and Distribution of Estate

Question:
Question:

Who is entitled to benefit what has been What is partition?

collated?
Answer:
Answer:

Since it’s only heirs who are descendants of The law provides that partition, in general, is
the deceased who are obliged to collate, it the separation, division and assignment of a
is also the same category of persons who thing held in common among those to whom
are entitled to benefit what has been it may belong. The thing itself may be
collated. divided, or its value. (Article 1079 of the
NCC of the Philippines)
Therefore, the other blood relatives of the
testator who are not his descendants, even Provided further, every act which is
grand-children and great grand-children if all intended to put an end to indivision among
testator’s children were alive at the time of co-heirs and legatees or devisees is
his death are not entitled to inherit what has deemed to be a partition, although it should
been collated. For instance, the grand- purport to be a sale, and exchange, a
children referred to above though they are compromise, or any other transaction.
descendants of the deceased, would not (Article 1082 of the NCC of the Philippines)
have collated and therefore cannot benefit
what has been collated.
Question:
People who are not related by blood to the
deceased cannot benefit what has been What is the state of co-ownership?
collated.

Question: Answer:
What is the purpose of collation?
The law provides that where there are two
Answer: or more heirs, the whole estate of the
decedent is, before its partition, owned in
The rationale for collation is that in law it is common by such heirs, subject to the
presumed that the deceased would have payment of debts of the deceased. (Article
wanted his descendant heirs to benefit 1078 of the NCC of the Philippines)
equally from his estate. However the
deceased who makes a will can indicate in
Question:
his will that he did not want collation to take
Who may effect partition?

78 | P a g e
 Under Article 1080 of the New Civil Code,
Answer: when a person partitions his estate by an
act inter vivos, it becomes effective only
As provided by law, the following may effect after the death of the testator.
partition:
In the present case, a partition which
1. By the testator; represents as a future inheritance cannot be
made during the lifetime of its owner.
2. By a third person designated by the
testator; Thus, the partition is not effective.

3. By the heir themselves; and Question:

4. By the Court. When can a co-heir demand his right to

partition?

Answer:

Question: Every co-heir has a right to demand the

division of the estate at any time. And as
In connection with the preceding question, long as the co-ownership is recognized, an
how will the partition be effected? action to compel partition will not prescribe
and may be filed at any time against the
Answer: actual possessor by any of the other co-
owners.
1. By the testator, either by will of by an
act inter vivos. (Article 1080 of the (Heirs of Yambao v. Heirs of Yambao, G.R.
NCC); No. 194260 (Resolution), [April 13, 2016])

2. By the heir themselves, by way of an Question:

extra-judicial settlement (Article
1081 of the NCC); A parcel of land which was originally
possessed by M. M's nephew, H, acted as
3. By the Court, by ordinary action for the administrator of the property and paid
partition under Rule 69 or in the realty taxes therefor. H has eight children, A
course of an administration , B, C, D , E , F , G , and I.
proceedings.
After H died, it was claimed that all of his
Question: heirs were free to pick and harvest from the
fruit-bearing trees planted on the subject
T, by way of act inter vivos, partitioned his property and one of the heirs constructed a
estate in favor of his two sons A and B. house. However, the communal and mutual
use of the subject property by the heirs of H
Is the partition inter vivos effective ceased when the heirs of F, prohibited them
immediately? from entering the property.

Answer: This prompted the heirs of H, to file a

complaint for partition. The heirs of H
No. The partition is not effective alleged that they and the heirs of F are co-
immediately. owners of the subject property, having
inherited the right thereto from H.

79 | P a g e
 a complaint seeking to redeem the area
The heirs of F averred that the cause of sold to spouses A.
action in the complaint filed by the heirs of H
already prescribed. Is redemption still available?

Did the action for partition already

prescribe? Answer:

Answer: No. Redemption is not available.

No. The action for partition does not Under Art. 1088 of the New Civil Code,
prescribe. should any of the heirs sell his hereditary
rights to a stranger before the partition, any
As a rule, prescription does not run or all of the co-heirs may be subrogated to
in favor of a co-heir or co-owner as long as the rights of the purchaser by reimbursing
he expressly or impliedly recognizes the co- him for the price of the sale, provided they
ownership; and he cannot acquire by do so within the period of one month from
prescription the share of the other co- the time they were notified in writing of the
owners, absent a clear repudiation of the sale by the vendor.
co-ownership. An action to demand partition
among co-owners is imprescriptible, and Here, the right of redemption was invoked
each co-owner may demand at any time the not days but years after the sales were
partition of the common property. made. The delay invoked by the petitioners
extends to more than a decade, assuming
In the case at bar, the prescription of course that there was a valid notice that
did not run because the heirs of H are still in tolled the running of the period of
possession of the property, as evidenced by redemption.
the house constructed by one of the heirs.
Thus, the redemption is not available.
Thus, the action for partition did not
prescribe. (Article 1088 of the NCC of the Philippines)

(Heirs of Yambao v. Heirs of

Yambao, G.R. No. 194260 (Resolution), Question:
[April 13, 2016], 784 PHIL 538-545)
Spouses B were the owners of a parcel of
land. Thus, the property, by operation of
law, passed on to their children, namely, O,
Question: I G, A, X, M, L and P. On September 5,
1960, the declared sole legitimate heir of O
Five brothers and sisters inherited in equal as well as I sold their respective aliquot
pro indiviso shares a parcel of land shares in the property to spouses D. On
registered in the name of their deceased April 16, 1962, M also sold her aliquot share
parents. Two of them sold their respective over the said property to spouses D. The
shares to spouses A, the petitioners therein. deeds of sale were approved.
Thus, spouses A and their children
introduced improvements on the area In September 1976, spouses D reconveyed
corresponding to two-fifths of the said lot, the shares sold to them. The reconveyance
representing the portions sold to them. More was under the names of FG and BG, sons
than a decade later, one of the siblings filed of G. Twenty-three years later, petitioners
heirs of I, L and heirs of B seeks the

80 | P a g e
annulment of TCT’s and judicial partition of rule, the 30-day redemption period given to
property of spouses D. They contended that the remaining co-heirs runs from written
the heirs of spouses B agreed that the notice of the sale by the vendor. Here, the
document of conveyance should be in the alleged redemption is invoked 23 years
name of FG and BG considering that they later. Also, the Deed of Resale executed in
provided the amount needed for the favor of the respondents which also covers
redemption of the shares sold to spouses D. the aliquot shares refers to an ordinary sale
The agreement was subject to the condition and not a redemption done for the benefit of
that after such reimbursement, the property the heirs of spouses B.
should be partitioned among the heirs.
Thus, the contention of the petitioners is
Respondent heirs of BG counter that there without merit.
was already an oral partition of the property
when O, M and I sold their respective (Escabarte v. Heirs of Isaw, G.R. No.
undivided interests to spouses D and no 208595, [August 28, 2019])
reimbursement took place.

Is the contention of the petitioners correct? Question:

In connection with the preceding question,

Answer: is a written notice required before the period
of redemption starts to run?
No. The petitioners are not correct.
Answer:
Case law instructs that for a transaction to
be considered one of legal redemption Yes. It is required.
inuring to the benefit of the co-heirs, the
following requisites must concur:
As provided by jurisprudence, the
1) there should be several heirs or court ruled that in requiring written notice,
partitioners to the common thing; Article 1088 of the New Civil Code seeks to
ensure that the redemptioner is properly
2) one of them sells his hereditary notified of the sale and to indicate the date
right; of such notice as the starting time of the 30-
day period of redemption. Considering the
3) the sale should be made to a shortness of the period, it is really
stranger to the inheritance and necessary, as a general rule, to pinpoint the
before the partition is made; precise date it is supposed to begin, to
obviate any problem of alleged delays,
4) one or more of the co-heirs exercise sometimes consisting of only a day or two.
this right within the period of one
month counted from the time they
are notified in writing of the sale by The instant case presents no such
the vendor; and problem because the right of redemption
was invoked not days but years after the
5) the buyer is reimbursed for the price sales were made.
of the same.
(Escabarte v. Heirs of Isaw, G.R. No.
In this case, the fourth and fifth requisites 208595, [August 28, 2019])
are lacking. The petitioners failed to
reimburse the respondents and as a general Question:

81 | P a g e
What is the effect of partition? Question:

Answer: When will the action for rescission on

account of lesion prescribe?
The law provides that a partition legally
made confers upon each heir the exclusive
ownership of the property adjudicated to Answer:
him.
(Article 1091 of the NCC of the Philippines) After four years from the time the partition
was made. (Article 1100 of the New Civil
Question: Code of the Philippines)

What is the prescription for an action to Question:

enforce warranty among heirs?
What is the effect of Inclusion of Non-heir
Answer: ins the Partition?

An action to enforce the warranty among Answer:

heirs must be brought within ten years from
the date the right of action accrues. A partition which includes a person believed
to be an heir, but who is not, shall be void
(Article 1094 of the NCC of the Philippines) only as to such person. (Article 1105 of the
New Civil Code of the Philippines)
Question:

When will the obligation of warranty among Question:

co-heirs cease?
A, B, C and D, who are compulsory heirs of
Answer: PExE BP, decided to judicially partitioned the
property inherited. D filed an action to the
Under Article 1096 of the New Civil Code, court to rescind and nullify the partition on
the obligation of warranty among co-heirs the ground that he suffered a lesion of ¼ of
shall cease in the following cases: the value of the share to which he is
entitled.
(1) When the testator himself has made the
partition, unless it appears, or it may be Is the action proper?
reasonably presumed, that his intention was
otherwise, but the legitime shall always Answer:
remain unimpaired;
Yes. The action is proper.
(2) When it has been so expressly
stipulated in the agreement of partition, As provided by Article 1098 of the New Civil
unless there has been bad faith; Code, a partition may also be rescinded on
account of lesion when any one of the co-
(3) When the eviction is due to a cause heirs received things whose value is less by
subsequent to the partition, or has been at least 1/1 than the share to which he is
caused by the fault of the distributee of the entitled considering the value of the things
property. at the time they were adjudicated.

82 | P a g e
In the case at bar, it is clear from the facts
presented that the action of D is proper. D
as one of the compulsory heir had suffered
a lesion of ¼ of the value of his entitled
share, in which in effect a valid ground for
rescission.

Thus, the action is proper.

Question:

In connection with the preceding question,

D filed for the rescission of the partition after
6 years from the date of partition. A
opposed and argued that the action to file
for rescission should not prosper since it
had already prescribed.

Is A’s contention correct?

Answer:

Yes. The contention of A is correct.

As provided by law, the action for rescission

on account of lesion shall prescribe after
four (4) years from the time partition was
made.

Here, D filed the action for rescission only

after 6 years from the time the property was
partitioned and not within the prescriptive
period of 4 years.

Thus, A is correct that the action for

rescission had already prescribed.

83 | P a g e