SUCCESSION

Civil Law

- -
3. Eclectic Theory .
SUCCESSION - This theory tries to harmonize the two principles
) — individual and social. In either of these
principles, the basis of succession is the
recognized necessity of perpetuating man’s
GENERAL PROVISIONS erg oeyend the limits of human existence

(ARTS. 774-782)
SUCCESSION V. INHERITANCE

Refers to the legal | Refers to . the

SUCCESSION mode by which | universality of all the
A mode of acquisition by virtue of which the property,
inheritance is | property, rights and
rights and obligations to the extent of the value of the
transmitted to the | obligations of a
inheritance, of a person are transmitied through his
death to another or others either by his will or by persons entitled to it | decedent, which are not

operation: of law (CIVIL CODE, Art. 774). (CIVIL CODE, Art 774). | extinguished by his
death (CIVIL CODE,
BASES OF SUCCESSION: Art. 776).
1. Right to dispose Private Property ~~ | =
right to own private property, he : LT NOTE: Inheritance is
If man has the
has the power to dispose of such property freely, ~ 4 + = + the objective element of
as he I
imposing such licit terms and conditions REP ) succession. (JURADO,
may deem convenient. Consequently, be may. . os Succession, supra at 5).
distribute them by means of a festarnent, since : Ts
a testament is nothing more than4n instrument © KINDS OF SUCCESSION:
of alienation conditioned upen his death ——— rs : :
(JURADO, Comments ‘and Jurisprudence -on 1. As to whether-a will exists or not:
Succession, (2009), p. :2 [héreipafter, JURADO, + Testacy — by a wil
a. Testamentaryor form
Succession]). BN : executed prescribed by law
In the
(cIviL CODE, Art. 779),
b.¢ Legal or Intestacy — by operation of law
NOTE: This is the basis” of testamentary —
: ¢ -based onthe; decedent's presumed will
succession. EEG CH
cS ae LD Art. 960); and
(CIVILICODE,
Tak Tae : — partly testamentary and partly legal
¢, “Mixed
2. Family Co-ownership ET © (CIVIL CODE, Art.780).
If the family is recognized as the heart and soul. -
of society, the idea of succession. must, : 2. -[Link] effectivity:
therefore, revolve around it. Hence, the basis-of.... ) a." Inter vivos ~ takes effect during the lifetime
succession rests upon family co-ownership (fd). of the source of the property (e.g., donation)
b" Mortis causa ~ takes effect after the death
NOTE: This is the basis of intestate succession.» -
of the source of the properly

for Academics | .
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SAMANTHA YVES O. P
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CHARISMA T. CHAN,
SANTOS, SUSANNA MARTHA B. IBE, KARLA
VERONICA V. VELASQUEZ, ALYSSA Al MEE S. BATLE, MICHELLE L. DELOS
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Atty. JOSEPH FERININAND DECHAVEZ
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3. As to extent: hereditary estate. They exist only in

a. Universal — covers all the property, rights, testamentary succession (JURADO,
and obligations of the decedent, that is all the Succession, supra at 185); and
relations in which the decedent was involved
b. Particular - limited to certain specific items NOTE: A person may be a compulsory
and voluntary heir at the same time, in
4. As to part of property transmitted: the same will {dual status as an heir).
a. Forced or compulsory — takes place with This happens when in a wil, a
respect to the legitime compulsory heir is given more than his
b. Veluntary — takes place with respect to the legitime. Insofar as his legitime is
free portion concerned, he is a compulsory heir.
Insofar as the excess is concerned, he
5. Contractual is a voluntary heir (3 PARAS, supra at
— deducible from the provision of Art. 130 of the 35).
Civil Code which is contractual in character and
applicable only to donations of future property by (3) Legallintestate ~ Those who
reason of marriage made by one spouse to the succeed by operation of law when
other (JURADO, Succession, supra at 14; DE “legal or intestate ‘succession takes
LEON, Comments and Cases on Succession, place. They are classified as:
(2017), p. 34-35 [hereinafter, DE LEON, (a) Those who inherit in their own
Succession]). right; and
(b) Those who inherit by right of
REQUISITES FOR TRANSMISSION OF representation.

SUCCESSIONAL RIGHTS: (DAT) il. Devisees — persons to whom gifts of real

1. That indeed there has been Death (actual or property are given by virtue of a will (CIVIL
presumed); ’ ‘CODE, Art. 782).
2. That the rights or properties are: indeed ii. Legatees - persons to whom gifts of
Transmissible or discernible; and personal property are given by virtue of a will
3. Thatthe transferee is still Alive (no prédecease), (CIVIL CODE, Art. 782).
is willing {no repudiation), and is capacitated to
inherit (3 PARAS, Civil Code of the Philippines
HEIRS \'Z DEVISEES OR LEGATEES,
Annotated, (2016), p. 12-13} fhereinafter, 3
PARAS]. DISTINGUISHED

ELEMENTS:
1. Subjective Elements: Decedent: and
Successors
a. Decedent : Universal title; Particular title;
The person whose property is transmitted Succeed to an | Succeed tc individual
through succession, whether or not he left a indeterminate or aliquot { items of property.
will (CIVIL CODE, Ant. 775). portion.
i. . Testator —if he left a will.
ii. Decedent~ if he left no will.

b. Successors {Transferees or Causa Succeed by means of a Succeed by means of a

habientes) will or by operation of will only (CIVIL CODE,
i. Heirs — Those who are called to the law (CIVIL CODE, Art. Art. 782).
whole or to an aliquot portion of the | 782).
inheritance either by will or by operation
of law (CIVIL CODE, Art. 782).
(1) Compulscry/Forced — Those who Distinction must be As a rule, the devises or
succeed by force of law to some made between heirs in legacies are chargeable
portion of the inheritance in an testate succession against the free portion.
amount predetermined by law known
|

(compulsory and
as legitime (CiVIL. CODE, Art. 886). voluntary) and heirs in
Voluntary — Those who succeed by intestate succession
nN
—
~

virtue of the will of the testator, to the (legal or intestate heirs)

whole. or dliquot part of the
disposable free portion of the
 SUCCESSION
Civil Law

to determine the portion prejudiced (CIVIL

of the estate. CODE, Art. 918).

inherits an aliquot part Must be specified by the

of the indeterminate testator. Inherit everything at the After-acquired
portion of the estate. time of the testator's properties shall only
death (JURADO, | pass thereby, as if the
Succession, supra at | testator had possessed
36). it at the time of the
making of the will,
Represents the juridical Does not represent the
should it expressly
personality of the personality of the
appear by the will that
deceased and acquires deceased regardless of
such was his intention.
his rights, properties, the quantity or value of
(CIVIL CODE, Art. 793).
and obligations not the devise or legacy.
extinguished by death
REASON: it does not
to the extent of the
apply to the heirs
value of the inheritance.
because the heirs
inherit everything at the
time of the testator's
The heir who succeeds The: deviseg-or légatee death. The time of death
by operation of law must may bea felative of not. is the determining point
be a relative ; + <5 | of the properties, which
«°° = | the heirs will inherit, not
(JURADO, Succession, supra at 57 28; DE LEON,
he making of the will
Succession, supra at 40-4 1). i eae © | [See CIVIL CODE, Arts.
5 i {776 and 781).
NOTE: The distinction © between ° half. and. oC
devisees/legatees are sigriificaft; in the: following.
cases: (PIA) To lustration: xX desighated A to % of his estate. He
a. Preterition (CIVIL CODE, Art 854): also designated to B his car with plate number GVG-
b. Imperfect disinheri itance (CIVIL:CODE, Att. ‘ 101. Who isthe heir? Who is the legatee?
918), and
c. After-acquired properties: (CIVIL “cope, Answer: Ais an feir because he will succeed to an
Art. 793). ‘ tmndivided portion of the estate (J% of X's estate). Bis
a legates because he will succeed to a specified
VOLUNTARY HEIRS V. —— property (a car with plate no. GVG-101).
LEGATEES DISTINGUISHED ustration: X executed a will in 2008. In his will, X
gave Y al} of his cars. X died in 2021. At the time of
the execution of the will, X had only 2 cars.
Assuming that in 2021 X already has 20 cars, how
many cars will Y inherit?

Annul entirely the Valid insofar as they are Answer: Y, a legatee, will only get 2 cars because
institution of heirs not inofficious (CIVIL the remaining cars are after-acquired properties. As
(CIVIL CODE, Art. 854). CODE, Art. 854). a rule, after-acquired properties shall only pass, as if
the testator had possessed at the time of the making
of the will, shoud it expressly appear by the will that
such was his intention. (CIVIL CODE, Art. 793).
Annul the institution of Valid insofar as they are Here, it does not expressly appear that it was X's
heirs to the extent that not inofficious (CIVIL intention to pass even his after-acquired properties.
the legitime of the CODE, Art. 318). Hence, Y shall only get 2 cars.
disinherited heir is
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2. Causal Element: Death supra at 12). However, an heir cannot compel

When right to succession is transmitted the administrator to deliver to him his respective
The rights to the succession are transmitted portion without order of the court (/d. at 13).
from the moment of the death of the decedent
(CIVIL CODE, Art. 777). This rule applies to the No judicial declaration of heirship is necessary
2 kinds of death: in order that an heir may assert his or her right
a. Actual, Physicalor Natural; and to the property of the deceased. Under the Civil
b. Presumptive. Code and Code of Civil Procedure, the title to
the property owned by a person who dies
NOTE: It is not tradition (delivery) that transfers intestate passes at once to his heirs. Such
ownership, but succession. The effects of the transmission is subject to the claims of
acceptance of inheritance retroact to the administration and the property may be taken
moment of death (3 PARAS, supra at 16). from the heirs for the purpose of paying debts
and expenses. Without some showing that a
Before Death judicial administrator had been appointed in
No heir may enter into a contract with respect to proceedings to settle the estate, the right of the
his future share in the inheritance because at heirs to maintain such action is established
this point the heirs have only a mere hope or (Gloria-Payduan v. Builders Savings and Loan
expectancy, absolutely inchoate in character, to Association, G.R. No. 202324, June 4, 2018).
their share in the inheritance (JURADO,
Succession, supra at 9). Unless there is a pending special proceeding for
the settlement of the decedent's estate or for the
Any contract entered into with respect to future determination of heirship, the compulsory or
inheritance would have no object whatsoever, intestate heirs may commence an ordinary civil
and as a consequence, would be inexistent from action to declare the nullity of a deed or
the beginning (/d.; read in connection with par: 2 instrument, and for recovery of property, or any
of Art. 1347 of the Civil Code). ‘other:iaction in the enforcement of their
ownershiiy. rights acquired by virtue of
GENERAL RULE: No contract may be entered successian; without the necessity of a prior and
into upon future inheritance except in cases separate judicial declaration of their status as
expressly authorized by law (CIVIL CODE, Ant. such. The ruling of the trial court shall only be in
1347 par. 2). } relation to:the sause of action of the ordinary civil
e.- nullification of a deed or
EXCEPTIONS: ¢ recovery or reconveyance of
a. Donations propter nuptias: by. the future property, which ruling is binding only between
spouses to each other of future property and among the parties (Reyes v. Larlar, G.R.
(JURADO, Succession, supra at 8); and . 232679, September 8, 2020).
b. Partitions inter vivos made by a person.-of-
his estate among his heirs (CIVIL CODE, Determination of the Time of Death in Case
Art. 1080). of Presumptive Death
General Rule: The time when the absentee
After Death actually died must be proved in accordance with
After death, the heirs own the property, subject the ordinary rules of evidence (JURADO,
to the decedent’s liabilities (3 PARAS, supra at Succession, supra at 11). :
21). Hence, by virtue of their ownership, the
heirs may enter into a contract with respect to Exceptions:
his share in the inheritance even before partition a. Ordinary Absence
has been effected (JURADO, Succession, supra For purposes of opening one’s succession,
at 8). an absentee is presumed dead at the time
of the expiration of the period of absence
By virtue of succession, prior settlement of the designated by law:
estate is not necessary for any of the heirs to
acquire legal capacity to sue. Heirs can i. 10 years - if he disappeared at the age
- commence an action originally pertaining to the of 75 or below. ) CZ
decedent (Emnace v. CA, G.R. No. 126334, ii. Hyears—if he e disappeare
disappeared after the age
age oO
“November 23, 2001). of 75 (CIVIL CODE, Art. 390, par. 2). 7]
The fact that the hereditary estate is placed NOTE: The death is presumed to have
hn
under administration will not affect the occurred at the end of the 10-year or 5- Oo
application of Art. 777 (JURADO, Succession, oO
2
©.
 SUCCESSION
Civil Law

year period (JURADO, Succession, supra (CIVIL CODE, Art. 392): If the heir had
at 11). ' already spent the money there is no
obligation to reimburse, in as much as the
Qualified or Extraordinary Absence consumption had been made in good faith
A person shall be presumed dead for all (3 PARAS, supra at 18-19).
purposes, including the division of the
estate among. the heirs, under the 3. Objective Element: Inheritance
following circumstances: (VAD) Scope of Inheritance:
i. Hf he is on board a Vessel lost during a a. All properties of the decedent existing at the
sea voyage, of an aeroplane which is time of his death to the extent of the value of
missing, who has not been heard of for the inheritance (CIVIL CODE, Art. 776 and
4 years since the loss of the vessel or Art. 1311).
aeroplane;
ii. If he is in the Armed forces who has Restricted Concept of Inheritance
taken part in war, and has been missing Until a final liquidation is made and alt debts
for 4 years; or left by the decedent are fully paid, the right
fii. If he has been in Danger of death under of the heirs to inherit remains inchoate or is
other circumstances and his existence a mere hope or expectancy. Liquidation is
has not been known for 4 years (CIVIL necessary to determine whether the
CODE, Art. 391). decedent has left assets which may be
transmitted to his heirs (JURADO,
NOTE: The person is presumed to-have © Succession, supra at 5).
died at the time of the disappearance, i.e,
at the time the calamity took place, and not -. NOTE: The mortal remains of the decedent
at the end of four (4) years: (JURADO, is. nota property, hence, does not form part
Succession, supra at 12)... of the inheritance. However, under R.A. 349,
as amendedby R.A. 1056, a person may
The succession really took place four years, validly: grant: to a licensed physician,
before (on the day of the disappearance), surgeon, scientist or any medical or
. but actual division will only be at the end: of scientific institution, the authority to detach
four years. In other words, from the .at any time-after his death any organ of his
beginning of the said four years, the heir body {id at 17- 18).
shall be <considéred. the owner and
possessor of the property, and not only-from RA. No. 7170 authorizes the legacy or
the end thereof (3 PARAS, supra at 18). -. donation of all or part of a human body after
death for specified purposes (DE LEON,
In both cases, the sutcession-is ofly of Siiccessiofn, supra at 10).
provisional character because . there is
always the chance that the absentee. may... All: transmissible rights and obligations
still be alive (Id). existing at the time of decedent’s death to
the extent of the value of inheritance (CIVIL
Time of Death of Two or more Persons CODE, Art. 776 and Art. 1311).
who are called to succeed each other
If there is doubt, as between two or more PATRIMONIAL RIGHTS VS. PURELY
persons who are called to succeed each
PERSONAL RIGHTS
other, as to which of them died first, whoever
alleges the death of one prior to the other
shall prove the same; in the absence of
proof, it is presumed that they died at the
same time and there shall be no
transmission of rights from one to the other
(CIVIL CODE, Art. 43).
Persons and family

Effect of Absentee's Return or

Appearance GENERAL RULE: Extinguished by death
The absentee shall recover his property in Not extinguished by | because they are
the condition in which it may be found, and death inseparable from their
the price of any property that may have been holder or owner
alienated or the property acquired therewith;
but he cannot claim either fruits or rents.
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iv. Action to compel acknowledgment of a

natural child;
v. Action to obtain judicial declaration of
EXCEPTION: illegitimate filiation of an illegitimate
Otherwise provided by child who is not natural;
law or will vi. Parental authority or patria potestas;
vii. Rights of a guardian;
viii. Right to receive. and the cbligation to
give support;
ix. Right to hold a public office as well as
Transmissible. Hence, Intransmissible by their the right to exercise a profession or
they may be included in nature and purpose (not vocation;
the inheritance. by contract). They are x. Right of usufruct;
not included in the xi. Right of personal easement;
inheritance. xii. Rights and obligations arising from a
(DE LEON, Succession, supra at 71-13). contract of partnership or agency; and
xii. Criminal responsibility (JURADO,
Obligations not extinguished by death Succession, supra at 19).
which form part of the estate
GENERAL RULE: Obligations are by NOTE: The rights and ° obligations
nature transmissible and may constitute part extinguished by death are not transmissible
of the inheritance. by their nature, or by stipulation or by
provision of law (C/VIL CODE, Ari. 1311).
EXCEPTIONS:
i. Personal obligations; The rights and obligations the deceased had
il Those arising from a contract for a =~ by svirtue of the subject Codicii were
piece of work; and “itrapsmitted to his forced heirs, at the time of
ii. Those thal are made intransmissible fb his death (Rabadillav. CA, G.R. No.113725,
by express agreement or [Link] of the Jung 29, 2000).
testator or by express provision of law
(Id. at 14). Section 5 of Rule 86 of the Rules of Court
xpressly ‘allows the prosecution of money
Rights and Obligations : NOT ing: from a contract against the
extinguished by death: i : deceased debtor. Hence, money
i. Right to bring or contintig:an action for cl € not actually extinguished.
forcible entry or unlawful detainer;;
ii. Right to compel the execution of a Whatever monetary liabilities or obligations
document necessary for convenience, thig:deceased had under his contracts with
provided the contract is valid and creditors were not intransmissible by their
enforceable; nature, by stipulation, or by provision of law.
Ji. Rightto continue a lease contract; Hence, his death did not result in the
iv. Property right in an insurance policy extinguishment of those obligations or
with an irrevocable designation (3 liabilities, which merely passed on to his
PARAS, supra at 7); estate (Stronghold Insurance Co., Inc. v.
v. Civil liability arising from crime; Republic-Asahi Glass Corp, G.R. No.
vi. Obligation to deliver to the vendee 147561, June 22, 2006 citing Pavia v. De La
property sold by their parents; and Rosa, G.R. No. L-3083, March 18, 1907).
vii. Rights and obligations arising from
contract or negligence (DE LEON, With respect to obligations arising from
Succession, supra at 13-14). contracts, while the same is transmissible to
the heirs, the latter's liability shall, however,
Rights and Obligations extinguished by be limited only up to the value of the
death and are not transmissible: property they received from the decedent (7
i. Rights and obligations between RABUYA, Civil Law Reviewer, (2017), p.
husband and wife; 714 [hereinafter 1 RABUYA]J).-
i. Property relations between husband 2)
and wife; The right of action for the acknowledgement
ii. Action for legal separation or to annul a of a natural child is extinguished by his
marriage; death because no express provision like that Q
of Art. 118 of the then Civil Code on the Q
=oN:
 SUCCESSION
Civil Law

atknowledgement of legitimate children can be doprived of his inheritance only by a

exists. As such, the right of action cannot be compliance with this mode (Herrercs v. Gil, G.R. No.
transmitted to and enforced by his mother 1-3362, March 1, 1951).
(Conde v. Abaya, G.R. No. 4275, March 23,
1909). KINDS:
1. Notarial or Ordinary; and
NOTE: it must be remembered, however, 2. Holographic:
that the Family Code limits the classification
of children only to legitimate and illegitimate
MODES:
children (JURADO, Succession, supra at
1. By will; or
292).
2. By codicil.
The action to claim legitimacy for both
legitimate and illegitimate children may be CHARACTERISTICS (PFV-DRUM):
brought by the child during his/her lifetime 1. Strictly Personal Act
and shalt be transmitted to the heirs should it cannot be left in whole or in part to the
the child die during minority or in a state of discretion of a third person, or accomplished
insanity. In these cases, the heirs shall have through the instrumentality of an agent or
a period of five (5) years within which to attorney (CIVIL CODE, Art. 784).
institute the action (FAMILY CODE, Ar, .
173). . The mere act of drafting a will does not fall within
.- thé purview of the prohibition because the
¢. Those which have accrued théreto since the _persen doing the mechanical work of writing the
opening of the succession; suchas alluvium will is a matter of indifference. Thus, the fact that
(CIVIL CODE, Art. 781). ’ the will'was typewritten in the office of a lawyer
is of no consequence (Castafieda v. Alemany,
NOTE: The accretions or accessions are not strictly G.R: No. 1438, March 19, 1904).
inherited for they form part of the estate only after
the heirs become the owners thereof; hence,” Acts which may. not be left to the discretion
properly speaking they are acquired by accretion (as of a third person; (DEPO)
an incident of ownership [Link] LAW), not by a. Duration “of ‘the designation of heirs,
succession (3 PARAS, supra at:33). ) devisees or legatees (CIVIL CODE, Art.
785), [ce
b:., Efficacy of the designation of heirs, devisees
_- or legatees (CIVIL CODE, Art. 785),
TESTAMENTARY ¢. Determination of the Portions which they are

SUCCESSION to take, when referred to by name (CIVIL

‘CODE, Art. 785); and
(ARTS. 783-959) | “REASON: Those acts are testamentary in
+ character (JURADO, Succession, supra at
: 31).
It is one which results from the designation of an heir
made in a will executed in the form prescribed by law d. Determination of whether or not the
(CIVIL CODE, Art. 779). testamentary disposition is to be Operative
(CIVIL CODE, Art. 787).
WILL
‘REASON: While the act determining
An act whereby a person is permitted, with the whether a testamentary disposition is to be
formalities prescribed by law, to control to a certain operative or not is not exactly testamentary
degree the disposition of his estate, to take effect in character, it is nonetheless prohibited
after his death (CIVIL CODE, Art. 783). because it would be tantamount to allowing
a third person substitute the will of the
The rightto make a testamentary disposition of one's testator for his own (JURADO, Succession,
property is purely of statutory creation, and is supra at 32).
available only upon the compliance with the
requirements of the statute. The formalities which
lustration: X declared in his will * hereby
the Legislature has prescribed fof the execution of a make A, B, and C, children of Hospicio de San
will are essential to its validity, and cannot be Jose, as my legal heirs and declare my lawyer
disregarded. The mode so prescribed is the
measure for the exercise of the right, and the heir
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to determing the amount which they are to 5. Ambulatory and Revocable During the
receive.” Is the provision valid? Testator's Lifetime
The testator can alter, revise, or revoke it al uny
Answer: No. Ait. 785 will apply because the time before his death
heirs were referred to by name. Furthermore,
the amount was not specified by the testator. it 6. Unilateral and Individual Act
is the lawyer who determines the amount. — This means that no acceptance by the
transferee is needed while the testator is still
Acts which may be entrusted to a third alive, any acceptance made prematurely is
person (CIVIL CODE, Art, 788): useless (3 PARAS, supra at 44)
Distribution of specific property or sums of
money that the decedent may leave in Two or more persons cannot make a single joint
general to specified classes or causes; and will, either for their reciprocal benefit or for
b. Resignation of the persons, institutions or ancther person. However, separate or
establishments to which such property or individually executed wills, although containing
sums are to be given or applied. reciprocal provisions (mutual wills), are not
prohibited, subject to the rule on disposicion
lllustration: What if X declared in his will: "| give * captatoria (CIVIL CODE, Art. 875).
P10 million to the street children of Manila and
hereby designate my lawyer to take care of the 7.. Act Mortis causa
distribution of the said amount.” Is the provision
it takes effect only after the death of the testator
valid?
(3 PARAS, supra at 44).

Answer: Yes, Art. 786 applies. The beneficiary +

is a specified class and the amount was in: a
specified amount of money.
INTERPRETATION OF
Formal and Solemn Act © WILLS
(ARTS. 787-795)
It must be executed in accordance with the
formalities required by law (3 PARAS, supra at
44).

. Free and Voluntary Act

“It must have been executed freely, knowingly, or
All rules
of i
nstrIction are designed to ascertain
and give effectio the intention of the testator. It is
ambulatory; otherwise, it will be disallawed (id.),
only when the intention of the testator is contrary to
“law, morals, or public policy that it cannot be given
Disposition of Property ef ect (JURADO, Succession, supra at 34).
Disposition can be done either: ’
a. Directly — by the institution of heirs or
designation of devisees or legatees
and the
DISPOSITIONS SUSCEPTIBLE OF
property or share they are to receive; or DIFFERENT INTERPRETATIONS
b. Indirectly — by validly disinheriting those In case of doubt, that interpretation by which the
who would otherwise inherit by operation of disposition is to be opetative or will sustam and
law (1 RABUYA, supra at 725). uphold the will in all ils parts shall be adopted,
provided that it can be done consistently with the
A document which initially comes across as a established rules of law (CIVIL CODE, Art. 788).
mere disinheritance is considered a will. An
intent to dispose mortis causa can be clearly REASON: Testamentary succession is preferred
deduced from the terms of the instrument, and over intestacy. As much as possible, a testator's will
while it does not make an affirmative disposition is treated and interpreted in a way hat would render
of the testator's property, the disinheritance of all of its provisions operative." Hence, there is no
an heir, nonetheless, is an act of disposition in basis to apply the provisions on intestacy when
teell. the disinheritance results in the testate succession evidently applies (Hacbang v.
disposition of the property of the testator in favor Aln, G.R. No. 191031, October 05, 2015).
of those who would succeed in the absence of
the disinherited heir. (Seangio v. Hon. Reyes, RULE ON MISTAKES AND OMISSION R25
G.R. Nos. 140371-72, November 27, 2006). 1. When there is an imperfect description or when E72)
no person or property exactly answers the Ww
description, mistakes and omissions must be LQ.
corrected by ascertaining the testator’s intention LO
=
 SUCCESSION
Civil Law

using either intrinsic or extrinsic evidence, or INVALIDITY OF A DISPOSITION IN A

both (JURADO, Succession, supra at 35). WILL
The invalidity of one of several dispositions
2. When there is uncertainty on the face of the will,
contained in a will does not result in the invalidity of
as to the application of any of its provision, the
the other dispositions, unless it is to be presumed
testator's intention is to be ascertained from the
that the testator would not have made such other
words of the will, taking into consideration the
dispositions if the first invalid disposition had not
circumstances under which it was made (/d.).
been made (CIVIL CODE, Art. 792).
EXCEPTION: When various dispositions or
In both instances, the oral declarations of the
provisions are indivisible in nature and intent.
testator as to his intentions are to be excluded
(CIVIL CODE, Art. 789).
AFTER-ACQUIRED PROPERTY
KINDS OF AMBIGUITIES: Property acquired after the making of a will shall only
‘pass thereby, as if the testator had possessed it at
1. Patent or extrinsic ambiguities
the time of making the will, should it expressly
— Those which appear on the face of the will
appear by the will that such was his intention (CIVIL
itself.
CODE, Art. 783).
Example: “I hereby institute some of my seven
NOTE: The rule applies only to devises and legacies
(7) brothers...” It is evident that there is an
and—.not to institution of heirs. (JURADO,
uncertainty as to how many brothers are being
“Succession, supra at 36).
instituted. A

2. Latent or intrinsic ambiguities © } EXTENT OF. INTEREST THAT THE

— those which do not appear on the face of the TESTATOR MAY DISPOSE OF
will and are discavered ‘only sby extrinsic Every devise or legacy shall convey all the interest
evidence. ] which the testalor could devise or bequeath in the |
property disposed of; tinless it clearly appears from
Example: "| institute my brother-in-law,..” It was the will that heintended to convey a less interest
discovered that there are two (2) brothers-in-law (CIVIL GODE, Art. 794):
(3 PARAS, supra at 49-50).
Hlustration: x and Y co-own a parcel of land. X then
WHEN AMBIGUITY ARISES: institeted in his will thatthe made Z the devises as to
the-parcel of land. Up to what extent of the land could
1. When there is an imperfect description of the
heir, legatee, or devisee;
he convey to.Z?
2. When there is animperfect description of the gift
Answer: X, as co-owner of the property, may only
being given; and
convey his share in the co-ownership no more, no
3. When only one recipient is designated but it
tess.
"turns out that there are two or more who fit:the
description (Gilmer v. Stone, 120 U.S. 686).
LAW GOVERNING FORM OF WILLS
HOW AMBIGUITIES ARE CURED The validity of a will as to its form depends upon the
observance of the law in force at the time it is made
GENERAL RULE: Intrinsic or extrinsic evidence
(CIVIL CODE, Art. 795). :
may be used to ascertain the intention of the
testator.
KINDS OF VALIDITY
EXCEPTION: The oral declarations of the testator 1. Extrinsic Validity
as to his intentions must be excluded (CIVIL CODE, — Refers to the forms and solemnities needed.
Art. 789).
2. Intrinsic Validity
REASON: The oral declarations of the testator are - Refers to the legality of the provision in an
merely HEARSAY. The testator can no longer refute instrument, contract, or will.
the testimonies of lying witnesses (JURADO,
Succession, supra at 35). EFFECTS OF A NEW LAW CHANGING
THE FORMALITIES OF A WILL
1. Before the death of the testator but after the
execution of the will, the new law has no
 MEMORY AID
San Beta University College of 1 aw - RGCT Gar Cperations Center

retroactive effect (JURADO, Succession, supra of the Philippines Annotated, (2003) p. 117
at 38). [hereinafter, 3 TOLENTINO]).

EXCEPTION: When a retroactive effect is; b. "Alien Testator

a. Expressly declared by the statute itself; or i. . Executing a will in the Philippines —
b. Necessarily implied from the language used either (CIVIL CODE, Arts. 17 and 817):
therein (CIVIL CODE, Art. 4). (1) The law of the Philippines; or
(2) The law of the country of which he
2. After the death of the testator, the rules have no is a citizen or subject.
effect because the heirs already have a vested ii. Executing a. wil outside of the
right (JURADO, Succession, supra at 38). Philippines — either (CIVIL CODE, Arts.
17 and 816): -
NOTE: A will totally void at the time of its execution (1) The law of the place where it is
cannot be validated by a subsequent legislation executed;
(Severina A. Vda. De Enriquez v. Abadia, G.R. No. (2) The law of the place in which he
L-7188, August 9, 1954). resides;
(3) The law of his country; or
GOVERNING LAW ON FORMALITIES (4) The law of the Philippines.
1. As to Time:
a. Extrinsic validity - Depends upon the ASPECTS OF THE WILL GOVERNED BY
observance of the law in force at the time it NATIONAL LAW OF THE DECEDENT
is made (CIVIL CODE, Art. 795). (CIVIL CODE, Aris. 1039 and 16): (AICO)
b. Intrinsic validity - Judged at the time of the
1. Amount of successional rights;
decedent's death by the law of his
2. Intrinsic validity;
nationality (3 PARAS, supra at 62).
~Capacityto succeed; and
2. As to Place (CIVIL. CODE, Arts. 815 - 817):
“4:-" [Link] succession.
The formal validity of a will shall be governed by
the law of the country in which it was executed DOCTRINE OF PROCESSUAL
(CIVIL. CODE, Art. 17). PRESUMPTION
a. Filipino testator i the foreign law is not properly pleaded or proved,
i. Executing a will in-the Philippines or our Courts will presume that the foreign law is the
before the diplomatic “or onsular © same ds? al-ar-domestic law (Del Socorro v.
officials of the Republic of the © Wilsem, G.R: No: 193707, December 10, 2014).
Philippines in a foreign country —
Philippine law. :
i. Executing a will outside 6f the
Philippines ~ either: TESTAMENTARY CAPACITY
(1) The law of the country in which it is
executed or in which he may be (ARTS. 796-803)
(CIVIL CODE, Arts. 17 and 815): or
(2) The law of the Philippines.

Hlustration: X, a Filipino citizen domiciled in TESTAMENTARY CAPACITY V.

Hong Kong, executed a will in Singapore. TESTAMENTARY POWER
Can the will be governed by the laws of the
Philippines?

Answer: Yes. The Civil Code did not mean It refers to the ability as | It refers to the privilege
to invalidate the will of a Filipino, executed well as the power to | granted to the testator
in a foreign country, when it is made in make a will. to designate the person
conformity with our law and not in conformity
with the law of the place of execution. Arts.
or persons who are to
succeed him in his or
>
816 and 817 permits an alien who executed
inheritance.
a will in a foreign country other than his own [I 1 !
to follow his national law or the formalities (JURADO, Succession, supra at 39).
prescribed by aur law. It cannot be assumed -
that the Civil Code places the Filipino citizen WHO CAN MAKE A WILL: (PS-18) wl
in a worse position than the alien in relation 1. All persons who are not expressly Prohibited by

2o
to our own law (3 TOLENTINO, Civil Code law may make a will (CIVIL CODE, Ant 796),
 SUCCESSION
Civil Law

These persons shall only refer to natural judicial order has been set aside (3 PARAS,
persons, not juridical ones (3 PARAS, supra at supra at 78);
74). 3. He was under Guardianship at the time of
making his will {Torres and Lopez de Bueno v.
A convict under civil interdiction is allowed to Lopez, G.R. No. L-25966, November 1, 1926).
make a will because civil interdiction prohibits a
disposition of property inter vives, not mortis The following circumstances do NOT affect
causa (REVISED PENAL CODE, Art. 34). testamentary capacity: (CAPIFO)
1. Civil Interdiction;
Spendthrifts or prodigals, even if under Alienage;

wn
guardianship, can make a will provided they are Prodigality;
at least 18 years old and are of sound mind (3 Insolvency; and

Soh
PARAS, supra at 74). Family Relations
Others of similar nature (JURADO, Succession,
2. Atleast 18 years of age (CIVIL CODE, An. 797); supra at 39-40).

NOTE: A person is deemed to have reached the EFFECT OF CERTAIN INFIRMITIES

required age al lhe commencement of the day 1. Old Age
which is known as his birthday (CIVIL CODE, Mere senility or infirmity of old age does not
Ari. 13; DE LEON, Succession, supra at 67). imply that a person lacks
.necessarily
testamentary capacity (Ortega v. Valmonte,
3. Of Sound mind (CIVIL CODE, Art. 798); G:R.:No: 157451, December 16, 2005).

NOTE: It is not necessary thatthe testatorbe in Senile Dementia

full possession of all his reascning factities, or it is the-peculiar decay of the mental faculties
that his mind be wholly unbroken, Unimpaired, or whereby. the- person afflicted is reduced to
unshattered by disease, injuryor other‘cause. it second childhood: It is senile dementia and not
shall be sufficient if at the time of making the will, senility that produces testamentary incapacity
he knows: (NOC) (JURADO, Succession, supra at 46).
a. The Nature of the estate: to be disposed of
(character, ownership of what he is giving); To constitute complete senile dementia: there
b. The proper Objects of “his “Bounty (by must be’ such failure of the mind as to deprive -
persons who for some: reason expect to action. In the first
the: ‘testator “of intelligent
inherit something from him = like his a person may possess
: Stages of the diseases,
children); and reason and have’ will power. If the testator still
c. The Character of the testamentary act (that . possessed the spark of reason and of life, that
it is really a will, that it isa disposition mortis strength of mirid to form a fixed intention and 1o
causa, that it is essentially revocable) (CIVIL . ..-summon-his ‘enfeebled thoughts to enforce that
CODE, Art. 799; 3 PARAS, supra at: 76). intention,” he is considered to possess
“testamentary capacity” (Torres and Lopez de
PRESUMPTION OF SOUND MIND Bueno v. Lopez, G.R. No. L-24569, February 26,
The law presumes that the testator is of sound mind. 1926).
Thus, the burden of proof that the testator was not of
sound mind at the time of making his disposition is - 2. Infirmity or Disease
on the person who opposes the probate of the will Physical infirmity or disease is not inconsistent
(CIVIL CODE, Art. 800). with testamentary capacity

No presumption of insanity arises from the presence EXCEPTION: In case the testator, at the time of
of mere delirium, since this is temporary, nor from the execution of the will, is already in comatose
intoxication, for the same reason (3 PARAS, supra or semi-comatose condition (JURADO,
at 78). Succession, supra at 47).

Exceptions to Presumption of Sanity 3. Mental Disease or Insanity

The burden of proving sanity is cast upon the There may be mental incapacity to make a will
proponents of the will when (1-1G): without actual insanity.
1. The testator, one (1) month or less, before
making his will, was publicly known to be insane Persons suffering from idiocy (those
(CIVIL. CODE, Art. 800 par. 2); congenitally deficient in intellect), and imbecility
2. If the testator made the will after he had been (those who are mentally deficient as a result of
judicially declared to be Insane and before such
 MEMORY AID
Ean Beda University College of Law - RGCT Bar Operations Center

disease) do not possess the necessary mental Formal Requirements: {(W2-SAMPAL)

capacity to make a will (Jd. at 48). In Writing;
b Executed in a Language or dialect known to
4. Mental Delusion the testator;
An insane delusion, which will render one ¢. Subscription — Subscribed at the end thereof
incapable of making a will, may be defined as a by the testator himself or by testator’s name
belief in things which do not exist, and which no written by some other person in his
rational mind would believe to exist presence and by his express direction;
d. Attested and subscribed by 3 or more
To justify the sctting aside of a will, it must be credible Witnesses in the presence of the
shown that the will was the product or offspring testator and of one another;
of the delusion, or at least, that it was influenced e. Marginal signature — All of the pages are
by the delusion (id. at 49). signed, except
the last, on the left margin by:
i. The testator or the person requested by
Belief in the Supernatural him to write his name, in the presence
Belief in spiritualism is not in itself sufficient of the witnesses; and
evidence of testamentary incapacity. i. The instrumental witness, in the
However, a will executed by one under such an presence of the testator and of one
extraordinary belief in spiritualism that he another;
follows, blindly and implicitly, supposed f. Page numbering - All the pages are
directions of spirits in constructing the will is not numbered correlatively in letters placed on
admissible to probate (ld. at 49-50). the upper part of each page;
g. Attestation clause executed by the
Brunkenness witnesses; and - .
GENERAL RULE: The admission of a wilt fo Acknowledgment — Properly acknowledged
probate will not be denied merely on proof that before a notary public by the testator and the
the testator was addicted to the excessive use $gid witnesses > (chi CODE, Arts. 804-
of alcoholic liquors or drugs (/d. at 50). 806).

EXCEPTION: If at the time of the making. of the Holograph or Holographic Will

will, the testator was so much under. the That which is’entirely written, dated, and signed
influence of the intoxicants or drugs. as tc be by thie hand of the testator himself (CIVIL CODE,
unable to bring to the business at hand the calm 810 y
judgment which the law requires of a testator (id.
at 50). NOTE: Nuncaptive wills — wills orally made by the
testator in contemplation of death, and before
Deaf-mute and Blind Person can make a “competent witness. Our new Civil Code does not
will (CIVIL CODE, Arts. 807-808). : rezognize: ithe validity of nuncaptive wills. Art. 804
does not recognize oral wills (3 PARAS, supra at
SUPERVENING INCAPACITY 81).
Supervening incapacity does not invalidate an
OBJECTS OF FORMALITIES OF WILLS:
effective will, nor is the will of an incapable validated
by the supervening of capacity (CIVIL. CODE, Art. (CAG)
801). 1. To Close the door against bad faith and fraud;
2. To Avoid substitution of wills and testaments;
and
3 To Guarantee their truth and authenticity
FORMALITY OF WILLS AND (JURADO, Succession, supra at 52).
WITNESSES TO WILLS So when an interpretation already given assures
(ARTS. 804-824) such ends, any other interpretation whatsoever, that
adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of testator’'s SZ
iNDS OF WILLS
will, must be disregarded (Herreros v. Gil, G.R. No.
L<3362, March 1, 1951)
o
1. Ordinary or Notarial Will 3
That which requires, among other things, an Be
attestation clause, and an acknowledgment CQ
before a notary public (3 PARAS, supra at 80).
5
: Up
 SUCCESSION
Civil Law

COMMON FORMALITIES BETWEEN A will is not invalidated by ihe

misspelling of the testator's name in the
HOLOGRAPHIC AND NOTARIAL WILLS
signature, where it is clear that the
1. Will must be in writing (CIVIL CODE, Art. testator intended to execute the
804). instrument by the signature affixed (DE
if the will is ordinary, it does not matter on what LEON, Succession, supra at 98).
material it is written. It may be written by hand or Signature hy Mark
typewritten, or printed from plates or type Any mark or combination of marks
(JURADO, Succession, supra at 53). placed on a will by the testator is a
sufficient compliance, even if at the time
Article 810 provides that in the case of of placing it, the testator knew how to
holographic wills, it must be written entirely in the write and is able to do so (JURADO,
handwriting of the testator himself. It is only in Succession, supra at 56).
the case of ordinary wills that whoever performs
the mechanical act of writing or drafting the will If the signature is only a mere cross, itis
becomes a matter of indifference (Castarieda v. acceptable as a valid signature,
Alemany, G.R. No. 1439, March 19, 1904). provided it can be properly established
that it is the testator's usual signature or
2. Executed in a language or dialect known at least one of the ways by which he had
to the testator (CIVIL CODE, Art. 804). signed his name before (lLeario v.
Testator's knowledge or understanding of the Leafio, G.R. No. L-8150, March 31,
language/dialect need not be expressly stated 1915).
either in the body of the will or in the attestation
clause (JURADO, Succession,:[Link] 53). The requirement of the statute that the
will shall be "signed" is satisfied not only
NOTE: Donations mortis causa partakeof the hature the customary written signature but also
of testamentary provisions (GIVil-CQODE, Art. 728) by the testator's or testatrix’ thumbmark.
and as such, said deeds .must be executed in Expert: testimony as to the identity of
accordance with the requisites on solemnities of wills thumbmarks or fingerprints is of course
and testaments under Arts. 805'and 808 (Maglasang admissible. However, where thumb
v. Heirs of Cabatingan, G. R- No. 131 983. June 5, impressions are blurred and many of the
2002). characteristic marks far from clear, thus
rendering it difficult to trace the features
NOTARIAL OR ORDINARY" WILL evi enumerated by experts as showing the
CODE, ART. 805): (SAM- PAR) : identity or lack of identity of the
impressions, the court is justified in
1. Subscription refusing to accept the opinions of
The manual act by the “testator “and his - alleged experts and in substituting its
instrumental witnesses of affixing their sighature
own opinion that a distinct similarity in
to the instrument (JURADO, Suceessioh, Supra
some respects between the admittedly
at 55). genuine thumbmark and the questioned
thumbmarks, is evident (Dolor wv.
PURPOSES:
Diancin, G.R. No. L-33365, December:
a. To identify the testator; and
20, 1930).
b. To authenticate the document (id. at 55).
if writing a mark is a sufficient indication
Forms:
of an intention to make a will then writing
a. Subscription by Testator
a portion of all of her name is accepted
i. Manner of Signing
as a clear indication of her intention. In
A sufficient signature to a will depends
this case the decedent used her first
largely on the custorn of the time and
name “Tomasa" (Yap Tua v. Yap
place, the habit of the individual, and the
CaKuan, G.R. No. 6845, September 1,
circumstances of each particular case, 1914).
but it should be manifest that whatever
is used is actually intended as a
signature (Id. at 55). b. Signature by another
Requisites: (TPEAW)
R . i. tis the testator's name that must have
NOTE: hh ae po been written by the Third person;
peal fal 10 the valicity o : ii. The testator's name must have been
). written in his Presence;
MEMORY AID
C 20021 £estiont

San Beda University Caliage of Law ~ RGCT Bar Opssiations Canter

ii. The third person must have affixed the c. The position of the signature is an internal
testator's name at his Express direction; evidence of finality or completion of intent
iv. This fact should be stated in the (JURADO, Succession, supra at 59).
Attestation clause; and
v. it should take place in the presence of . 2. Attestation and Subscription
the instrumental Witnesses (JURADO, Attestation is the act of three (3) or more
Succession, supra at 57). credible witnesses of witnessing the execution
. of the will in the presence of the testator and of
NOTE: Neither the notary nor any of the one another in order to see and take note
attesting witnesses can sign in behalf of the mentally that such will has been executed in
testator (3 PARAS, supra at 89). accordance with the requirements prescribed by
law. Strictly speaking, it is the act of the
The testator need not be physically witnesses and not that of the testator.
incapacitated, to ask a third person to sign the
will for him, provided, that the fact of the signing Subscription consists in the manual act of the
by the third person in his presence and under his instrumental witnesses in affixing their
express direction, shall be stated in the signatures to the instrument for the purpose of
attestation clause (Garcia v. Lacuesta, G.R. No. identification (/d. at 59-60).
L-4067; November 29, 1951).
’ Puiposes of Requiring Witness to Attest and
Place of signature (either by the testator or by to Subscribe to a Will: {PIPA)
another). End of the will, otherwise, void a. Protection of the testator from fraud and
(JURADO, Succession, supra at 59). deception;
b. Identification of the instrument;
End of Will , c. To render available Proof during probate
Refers to the logical end, which is "the paint “hiaone proggedings that the will has been executed
where the testamentary dispositions terminate a “ritiniesadcordance with the - requirements
(3 TOLENTINO, supra at 70). oe : prescribed by law and that the instrument
SI : offered for probate is authentic; and
When Article 805 of the Civil Code requires the = d. The Ascertainment of the testamentary
testator to subscribe at the end of theiwill, it capacity of the testator (/d. at 60-61).
necessarily refers to the lggical end thereof, : ; :
which is where the last testamentary disposition
ends. In this case, the last page of the will does
ATTESTATION V. SUBSCRIPTION
not contain any testamentary disposition; it is but
a mere continuation of the Acknowledgment
(Mitra v. Sablan-Guevarra, G.R. No. 213994,
Aprit 18, 2018).
An act of the senses. An act of the hand.
Example: If a will starts on the first page,
continues on the third page, but is concluded on
the second page, the latter is the logical end (3 Mental act. Mechanical act.
PARAS, supra at 87).

NOTE: If the testator's first name appears, P \ " p f

without the surname, the will is valid (Yap Tua v. : urpose is to renaer rurpose 1 or
Yap Ca Kuan, G.R. No. 6645, September 1, available proof during | identification.
1914). The will remains valid even though the probate of will, not only
testator's name is misspelled, abbreviated, or is of the authenticity one
indicated only by nickname, or by “Father” or oa 50 of its due
“Mother,” or in an assumed name, provided the
testator intended the same to be his signature (3
PARAS, supra at 87-88).
Attestation clause may | Subscription must | 3 Zz
PURPOSES: be placed at the | always be at the logical | g Q -
a. To show that the testamentary purpose beginning of the will. | end of the will. LAY
therein expressed is completed: Placing it at the end is [7]
b. To prevent any opportunity for fraud. or only for convenience. Eo TT Ey
interpolations between the written matter SQ
and signature; and (id. at 60). SQ
2.
LE
 SUCCESSION
Civil Law

Order of Signing time of the subscription (Jaboneta v. Gustilo

As long as the signing is done within the etal, G.R. No. 1641, January 19, 1906 supra).
presence of one another, it really does not It is not whether they actually saw each other
matter much whether the witnesses signed sign, but whether they might have seen each
ahead of or after the testator as ong as the other sign had they chosen to do so, considering
signing is sufficiently contemporaneous (/d. at their mental and physical condition and position
60-67). with relation to each other at the moment of
inscription of each signature (Neyra v. Neyra,
“In the presence” C.A. No. 8075, March 25, 1946).
The execution of a will cannot be legally effective
if the various participants signed on various days Number of Witnesses
or occasions and in various combinations of The will must be attested and subscribed by 3 or
those present (Andalis v. Pulgueras, G.R. No. more credible witnesses (CIVIL CODE, Art
39209, March 10, 1934). 805). This requirement is mandatory and if less
than 3 witnesses atlested and subscribed
While it may be true that the allestation clause thereto, the will is void (Alaud v. Alaud, G.R. No.
is indeed subscribed at the end thereof and at 176943, October 17, 2008).
the left margin of each page by the three,
attesting witnesses, it certainly cannot be if the attestation clause does not indicate the
conclusively inferred therefrom that the said number of witnesses, but the will clearly shows
witnesses affixed their respective signatures in “four signatures: that of the testator and of the 3
the presence of the testator and of-each other other ‘persons, it is reasonable to conclude that
since, as petitioners correctly .ohserved, the there are 3 witnesses to the will (Testate Estate
presence of said signatures onty establishes the of the Late -Alipio Abada v. Abaja, G.R. No.
fact that it was indeed signed, “but it-does not 147145; January 31, 2005).
prove that the attesting witnesses
did subscribe
to the will in the presence of the testator and of If the third witness is the notary public himself
each other. The execution of a will is supposed before whom the .will was supposed to have
to be one act so that where the'testatar and the been acknowledged, the requirements of
witnesses sign on various days or occasions Articles 805 and 806 of the Civil Code are not
and in various combinations, the will cannot be satisfied. THe notary public before whom the will
stamped with the “imprimatur of effectivity was acknowledged cannct be considered as the
(Caiteda v. Court of Appeals; G.R. No. 103554, third instrumental - witness since he cannot
May 28, 1993). ih : acknowledge befofe himself his having signed -
the will. He cannot split his personality into two
The phrase does not necessarily require actually so" that-one will appear before the other to
‘seeing, but the possibility of seeing without any acknowledge his participation in the making of
physical obstruction. When a person merely has the will (Cruz v. Villasor, G.R. No. [-32213,
his back turned, the sighing is dong in his November 26, 1973).
presence since he could have cast his eyes in
the proper direction (Jabonsta v. Gustilo, G.R. Marginal Signatures
No. 1641, January 19, 1906). GENERAL RULE: Each and every page of the
will, except the last, shall be signed on the left
The attaching of signatures was not done “in the margin:
presence” of the witness if his line of vision to a. By the testator or the person requested by
the testator and the other subscribing witnesses him to write his name in the presence of the
was impeded by a curtain separating them at the witnesses; and
moment of inscription of each signature (Nera v. b. By the instrumental witnesses in the
Rimando, G.R. No. L-5971, February 27, 1911). presence of the testator and of one another
(CIVIL CODE, Art. 805).
In case the testator is blind, the presence may
be complied with if the signing or action is within There is a mandatory and directory part to this
the range of the other senses like hearing, touch, requirement (1 RABUYA, supra at 762 and 764).
etc., of the testator (3 PARAS, supra at 89). a. Mandatory part —the signing on every page
by the testator or the person requested by
Test of Presence him to write his name in the witnesses’
The true test of vision is not whether the testator presence and the signing on every page by
actually saw the witness sign, but whether he the instrumental witnesses in the presence
might have seen him sign, considering his of the testator and of one another
mental and physical condition and position at the
MEMORY AID
San Beda University College of Law - RGOT Bar Operations Center

b. Directory part — the place of signing, i.e. the 4. Page Numberings

left margin; can also be on the right margin, All the pages of the will shall be numbered
provided, that the will contained the correlatively in letters placed on the upper part
necessary signatures on each page, of each page (CIVIL CODE, Art. 805).
whereby each page of the will was
authenticated and safeguarded against any There is a mandatory and directory part to this
possible alteration (Avera v. Garcia, G.R. requirement:
No. 15566, September 14, 1921). a. Mandatory part — Pagination by means of a
conventional system.
EXCEPTIONS: b. Directory part — Pagination which shall be
a. The last page need not be signed on the left numbered correlatively in letters placed on
margin because, being the page where the the upper part of each page. Thus, the
end of the will is, it contains the testator’s pages may be numbered by mere
signature (7 RABUYA, supra at 764); alphabetical letters, or by Arabic Numerals,
b. When the will consists of only one page; and or by any form of identification. if the paging
¢. When the will consists of two pages, the first be placed in the lower part, the testament is
page contains all the testamentary not void for this sole reason (1 RABUYA,
dispositions and is signed at the bottom by supra at 769).
the testator and the witnesses, and the
second contains only the attestation clause This is not necessary when the will is written on
signed at the bottom by the witnesses. As one sheet only (Abangan v. Abangan, G.R. No.
the attestation clause appertains only to the L-13431, November 12, 1919).
witnesses and not to the testator, it need be
signed only by them (Abangan v. Abangar, Substantial compliance with the statutory
G.R. No. 13431, November 12, 1819). requirement is sufficient (JURADO, Succession,
“supra at; 73).
Failure to have the marginal signatures of the
testator and of the witnesses, when needed, is a PURPOSES: (FIDS)
fatal defect that constitutes an obstacle of its a. To guard against-Fraud;
probate (In re: Will of Prieto, G.R. No. L-17761, b. To'prevent any Increase or decrease in the
April 28, 1922). pages;
c. To afford means of Detecting the loss of any
The inadvertent failure of ong witness to:affix his of its:pages; and
signature on one page of a testament, due to the d. “Foforestall’ any attempt to Suppress or
simultaneous lifting of two pages in the course substitute any of the pages (DE LEON,
of signing, is not per se sufficient to justify denial Succession, supra at 119).
of probate (lcasiano v. Icasianc, G.R. No. L-
18979, June 30, 1964). “3 NOTE The law says “page” not sheet (a sheet
has two pages, the front and the reverse sides.
NOTE: This case must be applied only to cases If both are used, both must be paged) (3
with similar facts. In lcasfano v. lcasiano, the PARAS, supra at 87-88).
failure of the witness io sign one page was
entirely through oversight, as shown by his own Attestation Clause (AC)
testimony as well as by the original duplicate Memorandum or record of facts wherein the
copy of the will, which was submitted to the court witnesses certify that the will has been executed
and which bore a complete set of signatures in before them, and that it has been executed in
every page (/casiano v. Icasiano, G.R. No. L- accordance with the formalities prescribed by
18979, June 30, 1964). law (JURADO, Succession, supra at 74).

Page of the Will NOTE: It must be signed by the witnesses, not

The law refers expressly to "page" and not to by the testator (/d.).
sheet or leaf or folio. A sheet has two pages, the
front and revers. If both pages of the sheet or
leaf are used, it is therefore necessary that both
PURPOSE: It is made for the purpose of
preserving in a permanent form a record of the Zz
front and reverse sides should bear the facts that attended the execution of a particular
signatures of the testator and of each of the will, so that in case of failure of the memory of W.
witnesses (3 TOLENTINO, supra at 85). the attesting witnesses, or other casualty, such
facts may still be proved (Cafieda v. CA, G.R. cde
No. 103554, May 28, 1993).
Q:
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 SUCCESSION
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Contents (CIVIL CODE, Art. 805): (SAN) NOTE:

a. The Number of pages used The attestation clause is the affair of the
witnesses; therefore, it need not be
GENERAL RULE: The failure to state the signed by the testator (Fernandez v.
number of pages on which the will was Vergel de Dios, G.R. No. L-21151,
written in the attestation clause is a fatal flaw February 25, 1924).
(Azuela v. CA, G.R. no. 122880, April 12, The attestation clause need not be
2006). written in a language or dialect known to
the testator nor to the attesting
EXCEPTION: There is substantial witnesses since it does not form part of
compliance with the requirement if the will the testamentary disposition (JURADO,
states elsewhere in it, how many pages itis Succession, supra at 91).
comprised of, such as when the
acknowledgement itself states the same NOTE: If the attestation clause is in a
(Mitra v. Sablan-Guevarra G.R. No. 213994, language not known to the witnesses, it
April 18, 2018, citing Taboada v. Rosal, G.R. shall be interpreted to them (CIVIL
No. L-36033 November 5, 1982). CODE, Art. 805).

There is no substantial compliance with Art. The witnesses must sign at the bottom
809 if there is a. discrepancy between the of the attestation clause.
number of pages stated in “the
acknowledgment and the actual number of © NOTE: If the page containing the
pages of the will as it cannet be explained attestation clause is signed by the
by mere examination of the will itself but witnesses on the left-hand margin but
through the presentation: of : evidence their signatures do not appear at the
aliunde (Lopez v. Lopez, G.R. No.. 189984 bottom of the attestation clause, the will
(Resolution), November, 12,2012). is, fatally ‘defective because the same
cannot’ be. considered to have been
But if the number of pages is not: stated in validly’ attested to by the instrumental
any part of the will, and. the will does. not witnesses, cas they failed to sign the
contain any notarial... acknowledgment attestation tlause (Azuela v. CA, G.R.
wherein the number of pages of the will no. 122860, April 12, 2006).
should be stated, the doctrine set. forth’ in
Taboada v. Rosal [Link] applicahlé {Azuela N The sighafures on the left- hand corner
v. CA G.R. no. 122880, Aprif12, 2006}. of every :page signify, among others,
Ahat the witnesses are aware that the
PURPOSE OF THE RULE: To safeguard page they are signing forms part of the
against possible interpolation or omission of will. On the other hand, the signatures
one or some of its pages and to prevent @ny- ) to the attestation clause establish that
increase or decrease in the pages {Azuela the witnesses are referring to the
v. CA, G.R. no. 122880, April 12, 2006). statements contained in the attestation
clause itself (1 RABUYA, supra at 758).
NOTE: When the attestation clause
erroneously states the number of pages of The fact that the attestation clause was
the will, the Court held that the error was not written on a separate page has been
material since the pagination in letters was held to be a matter of "minor
a sufficient safeguard of the will's integrity importance” and apparently will not
(Celada v. Avena, G.R. No. 145545, June affect the validity of the will (Villaflor v.
30, 2008). Tobias, G.R. No. 27440, December 24,
1927).
The fact that the testator Signed the will and
every page thereof, or caused some other An attestation clause is mandatory for
persen to write his name, under his express attested wills. It is separate and distinct
direction, in the presence of the from the acknowledgment clause
instrumental witnesses; and (certification of acknowledgment).
These two cannot be merged (Echavez
The fact that the witnesses witnessed and v. Dozen Construction, G.R. No.
signed the will and all the pages thereof in 1929186, October 11,2010).
the presence of the testator and of one
Another.
MEMORY AID
San Beda University College of Law - RQCT Bar Operations Canter

vi. Absence of this clause will render the b. Whether the signatures appear in each and
will a nullity (JURADO, Succession, every page; whether the subscribing:
supra at 74). witnesses are three; and
¢. Whether the will was notarized (Caneda v.
Effects of Defects or Imperfections in the CA, G.R. No, 103554, May 28, 1993).
Attestation Clause
GENERAL RULE: The will shall be invalidated All these are facts that the will can reveal, and
if the defect of the attestation clause is defects or even omissions concerning them in
substantial in character. The defect is the attestation clause can be salely disregarded.
substantial when it: But the total number of pages, and whether all
a. Goes into the very essence of the clause persons required to sign did so in the presence
itself; or of each other must substantially appear in the
b. Consists in the omission of one, some, or all attestation clause, being the only check against
of the essential facts which must be stated perjury in the probate proceedings (Carieda v.
in such clause, and such omission cannot CA, G.R. No. 103554, May 28, 1993).
be cured by an examination of the will itself
(Id. at 78). Notarial Acknowledgment
Done before a notary public by the testator and
EXCEPTION: Doctrine of Liberal the instrumental witnesses (CIVIL CODE, An.
Interpretation -806).
Omissions or non-compliance with statutory
provisions as to form would not be fatal provided Acknowledgment is the act of one who has
that it can be established or deduced from an executed a deed in going before some
examination of the will itself that all of the competent officer or court and declaring it to be
statutory requirements have been complied with his act or deed. It involves an extra step
(ld. at 83-84). ndertaken whereby the signatory actually
declares fo the notary public that the same is his
Requisites to avail of the Doctrine of Liberal or her own free act and deed (Lee v. Tambago,
Interpretation: A.C. Nog. 5281, February 12, 2008).
a. Defects and imperfections must t8 in. the The acknowledgment iin a notarial will has a two-
form of the attestation or in the language fold pirpose:
used therein; a. Jo safeguard the testators wishes long after
b. There must be no bad:faith, forgery, fraud, demisesand
or undue and improper pressure and b. “To-asstre that his estate is administered in
influence, in the execution of the attestation the manner that he intends it to be done
clause; and (Lee v. Tambago, A.C. No. 5281, February
c. It must be proved that the will-was:in fact 12, 2008).
executed and attested in substantial
compliance with all the requirements of Art. A notarial will that is not acknowledged before a
805 (Id. at 78; CIVIL CODE, Art. 809). notary public by the testator and the witnesses
is fatally defective, even if it is subscribed and
It may thus be stated that the rule, as it now sworn to before the notary public (Azuela v. CA,
stands, is that omissions which can be supplied G.R. No. 122880, April 12, 2006).
by an examination of the will itself, without the
need of resorting to extrinsic evidence, will not A will which contains a mere jurat and does not
be fatal and, correspondingly, would not obstruct contain an acknowledgment is fatally defective
the allowance to probate of the will being because Art. 806 requires that the will be
assailed. However, those omissions which “acknowledged” and not merely subscribed and
cannot be supplied, except by evidence aliunde, sworn to (Azuvela v. CA, G.R. no. 122880, April
would result in the invalidation of the attestation 12, 2006).
clause and ultimately, of the will itself (Cafeda
v. CA, G.R. No. 103554, May 28, 1993). The notary public must be duly commissioned
for the locality where the acknowledgment is
Zz
The
defects
GEICCS
rule must
that hat can
Lah
be limited to disregarding those
be
Oe supplied
Suppied by an examination
made. Otherwise, the notarization — and the will
— will be void. An acknowledgement (taken Oo.
of the will itself: hN
7]
outside the territorial limits of the officer's
a. Whether all the pages are consecutively jurisdiction is void as if the person taking it were
Md
Q
numbered; wholly without official character (Guerrero v.
Bihis, G.R. No. 174144, April 17, 2007).
‘0
=)
on
 ~ SUCCESSION
Civil Law

The Civil Code does not require that the signing of the testator, three (3) witnesses, and notary
of the testator, witnesses and notary should be public, the Court held that the formal
accomplished in one single act (Javellana v. imperfections should be brushed aside when the
Ledesma, G.R. No. L-7179, June 30, 1955). spirit behind the law was served though the letter
was not (Alvarado v. Gaviola, G.R. No. 74695,
Affixing of documentary stamp is not required for September 14, 1993).
validity (Gabucan v. Manta, G.R. No. L-515486,
January 28, 1980). NOTE: The facts required in Articles 807 and
808 are not required to be stated in the
The requirement in Art. 806 does not apply to attestation clause. The same may be proved by
holographic wills because the latter are not extrinsic evidence (1 RABUYA, supra at 789).
required to be witnessed (1 RABUYA, supra at
785). Witness to Notarial Wills
Requisites: (D-CRABS)
ADDITIONAL POINTERS ON a. Any person of Sound mind and
FORMALITIES OF NOTARIAL OR b. Atthe Age of eighteen (18) years or more;
ORDINARY WILL ¢. Not Blind, deaf or dumb;
d. Able to Read and write, may be a witness to
1. Date of Will the execution of a will mentioned in Article
NOT an essential part {3 TOLENTINO, supra at
805 of the Civil Code (CIVIL CODE, Art.
100). 820).
e.. Domiciled in the Philippines; and
REASON: It would still be dated" fn its, notarial
Has not been Convicted by final judgment of

oh
acknowledgment. . Talsifigafion of a document, perjury, or false
testimony. (evi CODE, Art. 821).
Conflict between the dates FAH the will
does not invalidate the document because the NOTE: A witness need not know the contents of
law does not even require that a’'notarial will be
the will, and:néed’not be shown to have had a
executed and acknowledged’ on the - same good standing in the community where he lives
occasion (Ortega v. Valmonte, 2 R. No, 157457, (JURADO, Succession, supra at 110).
December 16, 2005).
The requirement ‘that the witnesses must be
Additional Requirements for. ‘Special domiciled ini ‘the Philippines applies only if a
Cases Filipino citizen * gxecutes his will in the
a. Deaf or Deaf~Mute Testatoh. Philippines (1 RABUYA, supra at 797).
i. Personal reading of the will, if able to do
S0; Or Interested Witness
i. If not possible, designation of wo ©) Aspersen attesting the execution of a will fo
persons to read the + will. and. . whom or to whose spouse, parent, or child, a
communicate to him, in some [Link] legacy is given (CIVIL CODE, Art.823).
practicable manner, the “contents
thereof (CIVIL CODE, Art. 807). Effects of being an interested Witness:
a. He shall be admitted as a witness; but
b. Blind Testator b. The devise or legacy, so far only as
Double-reading requirement; concerns him, his spouse, parent or child, or
i. First, by one of the subscribing any one claiming under any of them, shalt
witnesses; and be void, unless there are three other
i. Second, by the notary public before competent witnesses to such will (CIVIL
whom the will is acknowledged (CIVIL CODE, Art. 823).
CODE, Art. 808).
NOTE: The persons named in Art. 823 are
Art. 808 of the Civil Code applies not only to incapacitated to inherit but not incapacitated as
blind testators, but also to those who for one witnesses (3 PARAS, supra at 130).
reason or another are incapable of reading their
wills (Alvarado v. Gaviola, G.R. No. 74695, The disqualification is not limited to the devisee
September 14, 1993). or legatee but extends to one succeeding by will
(3 TOLENTINO, supra at 125). These who are
In a case where the testator did not read the final incapable of succeeding by will includes, among
draft of the will, but the lawyer who drafted the others, any attesting witness to the execution of
document read the same aloud in the presence a will, the-spouse, parents, or children, or any
 MEMURY AID
San Beda University College of Law ~ RGCT Bar Operations Center

one claiming under such witness, spouse, FORMALITIES: (WDSL)

parents, or children (CIVIL CODE, Art. 1627,
1. Entirely Written by the Hand of the
par. 4).
Testator;
Effects of Insertions or interpolations by Third
Credible Witness
Persons (3 TOLENTINO, supra at 111-112}:
It means competent witness, that is, such
a. If made after the execution of the will
person as are not legally disqualified from
without the consent of the testator, such
testifying in courts of justice by reason of mental
insertion is considered as not written.
incapacity, interest, or the commission of’
crimes, or other causes excluding them from
REASON: The validity of the will cannot be
testifying generally (JURADO, Succession,
defeated by the malice or caprice of third
supra at 111).
persons.
Creditor Witness
A mere charge on the estate of the testator for
hb. If made after the execution of the will with
the payment of debts due at the time of the
the consent of the testator, the will remains
testator's death does not prevent his creditors
valid but the insertion is void.
from being competent witnesses to his will
(CIVIL CODE, Art. 824).
c. If made after the execution of the will, and
the insertion is validated by the testator by
NOTE: A person who is qualified to make a will
his signature thereon, the insertion
is not necessarily qualified to be a witness to the
becomes part of the will and the will is void.
will of another (JURADO, Succession, supra at
713).
REASON: Non-compliance with the
requirement that it must be entirely written
Effect of Subsequent Incompetency
If the witnesses attesting the execution of a will-~
by hand of the testator.
are competent at the time of attesting, their
e contemporaneous to the execution
becoming subsequently incompetent. shall not
of the will, the will is void.
prevent the allowance of the will (CIVIL CODE, aE
Art. 822). REASON: Will is not entirely written by the
The competency of a witness to a will is to be~
hand of the testator.
determined as of the time of the execution of the
instrument, and not as of the time [Link] will { Dated by the Hand of the
is presented for probate (JURADO, Suécéssion, Testator: ’
supra at 113). Date Format
The “date” in a holographic will should include
HOLOGRAPHIC WILL the day, month, and year of its execution.
However, when there is no appearance of fraud,
A holographic will is one entirely written; Hated, pov
bad faith, undue influence and pressure, and the
signed by the hand of the testator himself. it is
authenticity of the will is established, and the
subject to no other form, and may be made in or out
only issue is whether or not the date “FEB. 1961”
of the Philippines, and need not be witnessed (CIVIL
appearing on the will is a valid compliance with
CODE, Art. 810).
Art. 810, probate of the holographic will should
be aliowed under the principle of substantial
The Doctrines of - Liberai Interpretation and
compliance {Roxas v. De Jesus, Jr., G.R. No. L-
Substantial Compliance, as applied to ordinary or
38338, January 28, 1985). This is an essential
notarial wills, cannot be applied to holographic wills
part of a holographic will.
(JURADO, Succession, supra at 94).
Reason for the Date Requirement: So that in
REASON: The law exacts literal compliance with the
case of a revision of the will, that of the later date
requirements of Article 810 (/d.).
should be preferred as expressing truly the last
will and testament (3 PARAS, supra at 110).
PURPOSES OF STRICT COMPLIANCE:
1.
2.
Safeguard the authenticity of the will, and
Deter or prevent any possible insertion or
NOTE: Failure or error to state the place of “Q.
execution will not invalidate the will (3 [7,3
interpolation by others or any possible forgery
(Id). TOLENTINO, supra at 104). Nn
The law does not specify a particular location oO"
w .

where the date shouid be placed in the will. The

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 SUCCESSION
Civil Law

only requirements are that the date be in the will it is a matter that may be established by proof
itself and executed in the hand of the testator aliunde (HIRADO, Succession, supra at 53).
(Labrador v. CA, G.R. No. 83843-44, April 5,
7990). But where a will is drawn up in the dialect of a
certain locality and it is established that the
Entirely Signed by the Hand of the testator was living in or was a resident of that
Testator; locality, there arises a presumption that the will
GENERAL RULE: Art. 810 does NOT require is drawn up in a language or dialect known to the
that the testator must sign the will with his full testator, in the absence of evidence to the
signature. contrary (/d.).

NOTE: Signing by means of thumbprint is not Fules in Cases of Subsequent Dispositions

allowed because the law requires that the Will be 1. The dispositions of the testator written below his
"signed by the hand of the testator” (7 RABUYA, signature must be dated and signed by him in
supra at 791). order to meke them valid as testamentary
dispositions (CIVIL CODE, Art. 812)
EXCEPTION: In case of any insertion, When a number of dispositions appearing in a
cancellation, erasure or alteration in a. holographic will are signed without being dates,
holographic will, the testator must authenticate and the last disposition has a signature and a
the same by his FULL SIGNATURE (CIVIL date, such date validates the dispositions
CODE, Art. 814). preceding it, whatever be the time of prior
“dispasitions (C/VIL CODE, Art. 813).
Ordinarily, when a number. ‘of érasures,
corrections, and interlineatioris made by the “RULES FOR CURING DEFECTS
testator in a holographic willhas not béen noted
under his signature, the will is shot, "thereby
invalidated as a whole, but [Link]: only as Several dispositions | Valid
respects the particular words erased, corrected, were signed but NOT
or interlined (Kalaw v, Relova, G.R. No. L- dated, ‘and the -last REASON: The date of
40207, September 28, 1984). : disposition is : signed the last disposition cures
and dated. ; the defect (CIVIL CODE,
However, when as in this case, the holographic Art. 813).
Will in dispute had “only - one substantial
provision, which was altered by:substituling the ‘Several, dispositions Void
original heir with another, but which alteration were NOT signed and
did not carry the requisite of full authentication” | NOT dated, but the fast EXCEPTION: They were
by the full signature of the testator, the ‘effect: =. disposition is signed written on the same date
must be that the entire Will is voided er revoked... and dated: and occasion as the
for the simple reason that nothing. remains in the latter disposition
Will after that which could remain valid. To state
that the Will as first written should Be: given Several dispositions Void
efficacy is to disregard the seeming change of were NOT signed but
mind of the testatrix. But that change of mind can dated, ‘and the last REASON: They are
neither be given effect because she failed to disposition is signed considered independent
authenticate it in the manner required by law by and dated. of the will.
affixing her full signature (Kafaw v. Relova, G.R.
No. L-40207, September 28, 1984).
The last disposition is Void
Location of the Signature signed but NOT dated.
At the end of the will. This is evident from Article REASON: Art. 810
812 (DE LEON, Succession, supra at 162). requires the holographic
will to be dated.
Executed in a Language or Dialect (DE LEON, Succession, supra at 160).
known to the Testator. .
There is no statutory requirement that the NOTE: If the testator fails to sign and date some of
testator’s knowledge or understanding of the the dispositions, the result is that these dispositions
language or dialect in which the will is executed cannot be effectuated. Such failure, however, does
should be expressed either in the body of the will not render the whole testament void (Ajero v. CA,
itself or in the attestation clause. Consequently, G.R. No. 108720, September 15, 1994).
 MEMORY AID
San Beda University College of Law - RGCT Bar Operagons Center

ADDITIONAL " POINTERS ON JOINT WILLS

HOLOGRAPHIC WILL A single testamentary instrument which contains the
1. Probate of Holographic Will (CIVIL wills of two or more persons, jointly executed by
CODE, Art. 811) them, either for their reciprocal benefit or for the
GENERAL RULE: The original of the" benefit of a third person (JURADO, Succession,
holographic will should be presented to the . supra at 106).
probate court for visual examination. The law,
considering the special nature of holographic Joint wills executed by Filipino citizens. are void
wills as well as the special requirements for their whether executed in the Philippines or abroad and
probate, regards the document itself as material even though authorized by the laws of the country
proof of authenticity (JURADO, Succession, where they may have been executed (CIVIL CODE,
supra at 98). Arts. 818 and 819).

EXCEPTION: A photostatic or xerox copy of a NOTE: The prohibition does not apply to joint wills
lost or destroyed holographic will may be executed by aliens (CIVIL CODE, Art. 819).
admitted. The authenticity of the handwriting of
Kinds:
the deceased can be determined by the probate
court, as comparison can be made with the 1. Mutual Wills ~
standard writings of the testator (Gan v. Yap, — Executed pursuant to an agreement between
G.R. No. L-12190, August 30, 1958; Rodelas v. two or more persons to dispose of their property |
Aranza, G.R. No. L-58509, December 7, 1982). in a particular manner, each in consideration of
the other (JURADO, Succession, supra at 106).
2. Witnesses (CIVIL CODE, Art. 811)
. Reciprocal Wiils
a. Ifuncontested, it shall be necessary that at”
least one (1) witness who knows the
— The testators name each other as
SE iciaries under similar testamentary plans
handwriting and signature of the testator
explicitly declare that the will and signature
are in the handwriting of the testator.
b. If contested, at least three (3) of such NOTE: Mutaal or reciprocal wills are NOT prohibited
witnesses shall be required. X
provided thiey'are contained in separate instruments.
c. In the absence of any competent witness,
© The prohibitich under Art. 818 is the execution of a-
joint willor a wil contained in the SAME instrument,
and if the court deems:it.-necessary, expert
testimony may be resorted to.
“+ either fgri al benefit or for the benefit of a third
person (fd:
NOTE: In one case, the Supreme Court held that
REASONS (3 PARAS, supra at 124):
the provisions of Art. 817 are mandatory. Thus,
the production of three witnesses, in" case the il is a purely personal and unilateral act.
will is contested, cannot be dispensed with rary to the revocable character of a will.
3. May expose the testator to undue influence, and
{Codoy v. Calugay, G.R. No. 123486; August
may even induce one of the testators to kill the
12, 1999).
other.
The opposition was filed by a mere stranger who
had no personality to contest the wills. Thus, his
opposition thereto did not have the legal effect
of requiring the three witnesses (Rivera v. IAC, CODICIL AND
G.R. No. 75005, February 15, 1990). INCORPORATION BY
Matters to be Proved by the Testimony of the REFERENCE
Witness
1. ~ He knows the handwriting and signature of the
(ARTS. 825-827)
testator;
2. The will is in the handwriting of the testator; and
3. The signature is in the handwriting of the testator =
(CIVIL CODE, Art. 811). CODICIL
A supplement or addition to a wil, made after the §
Governing Law on Formalities execution of a will and annexed to be taken as part 7)0
(Please refer to p. 268 for full discussion on thereof, by which any disposition made in the original
Li
Governing Law on Formalities). will is explained, added to, or altered (CIVIL CODE,
Art. 825). Q
Q
=.
x7
 - SUCCESSION
Civil Law

it always refers to the original will. If there is entirely

no reference at all, then it is considered as the new
will. [f the later instrument makes dispositions
independent of those in the original will, without
explaining or modifying such original will, then itis a A will and codicil thereto | A prior will and a
new will, not a codicil. A codicil is always related to being regarded as a | subsequent will, being
some prior will (3 TOLENTINO, supra at 126). single instrument, are to | two separate wills, may
be construed together. | be construed
Its execution has the effect of republishing the will as independently of each
modified by the codicil (CIVIL CODE, Art. 836). other,
(DE LEON, Succession, supra at 1 77).
In order to operate as a republication of the will, itis
sufficient if the codicil refers to the will in such a way
as to leave no doubt as to the identity of that INCORPORATION BY REFERENCE
instrument (JURADO, Succession, supra at 115). The incorporation of an extrinsic document or paper
into a will by reference therein so as to become a
To be effective, it shall be executed as in the case of part thereof and probated as such (fd. At 178).
a will (CIVIL CODE, Art. 826). The form of a codicil If a will, executed as required by the Civil Code,
need not follow the form of the prior will to which it incorporates into itself by reference any document or
relates. A notarial codicil can modify a holographic paper, such document or paper shall not be
will and a holographic codicil can modify a notarial considered a part of the will unless the requisites for
will. What is important is that it is executed with ali avalid incorporation by reference are present (CIVIL
the formalities of a will (DE LEON, Succession, CODE, Art. 827).
supra at 178).
Requisites-"for * a Valid Incorporation by
In case of conflict, the codicil prevails, it being the Reference: (EDIS or SIDE}
later expression of the testator's will (3:PARAS, 1. The. document or. paper referred to in the will
supra at 132). must be in Existence at the time of the execution
of the will; :
NOTE: A notarial and a holographic will may be ~The ‘will must clearly Describe and identify the
NI

revoked by either a notarial or holographic codicil (/d. same, stating among other things the number of
at 133). A valid will can never be revoked, expressly pages thereof;
or impliedly, by an invalid codicil (d.). 3.7" It. must be fdentified by clear and satisfactory
proof as the document or paper referred to
CODICIL V. SUBSEQUENT WILL ‘therein; and
4. It ‘must ‘be Signed by the testator and the
witnesses on gach and every page, except in
case -of voluminous books of account or
inventories:
’ {CIVIL CODE, Ant. 827).
Forms part of the | A new or separate will.
original will.
REASON FOR PROVISION }
This is allowed only with respect to provisions in a
will that are not in the nature of testamentary
dispositions and also provisions which may be
Supplements the | Makes dispositions incorporated to the will merely for convenience or
original will, explaining, | without reference to and reference (DE LEON, Succession, supra at 179).
adding to, or altering | independent of the
any of its dispositions. original will. NOTE: The exception in the fourth requisite refers
only to the signing of all pages; while not every page
has to be signed, there must be a signature on at
least several pages (3 PARAS, supra at 134).
Does not, as a rule, | If it provides for a full
revoke entirely the prior | disposition of the When, in a will, reference is made to an inventory of
will. testator's estate, it may the properties of the testator, which has thus been
revoke the whole prior made part of the will, and the will has an attestation
will by substituting a clause that meets the requirements of the law, no
new and last disposition attestation clause is necessary for the said inventory
for the same. {Unson v. Abella, G.R. No. 17857, June 12, 1922).
 MEMORY AID
“207002 etn

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Provisions which are in the nature of testamentary NOTE: The recognition of an illegitimate child does
dispositions must be contained in the will itself. not lose its legal effect, even though the will wherein
it was made should be revoked (CIVIL CODE, Art.
Parol evidence may be admitted to prove the identity 834).
of the document as incorporated (3 TOLENTINO,
supra at 127). GOVERNING LAWS FOR REVOCATION
1. If revocation is made in the Philippines —
From the fact that Art. 827 (4) of the Civil Code Philippine Law
spedks of ‘withesses,” itis reasonable to believe that 2. [revocation is made outside the Philippines
as a rule, only notarial wills can have this a. [f testator is not domiciled in the Philippines:
incorporation by reference. However, it is submitted i. Law of the place where the will was
that: made or
1. If a holographic will happens to have at least ii. Law of the place where the testator was
three credible and qualified witnesses, there can domiciled at the time of the revocation
be a proper incorporation by reference; or (CIVIL CODE, Art. 829).
2. If a holographic will (with NO witnesses) refers b. If testator domiciled in the Philippines
to a document entirely written, dated, and signed i. Philippine law — the Philippines being
in the handwriting of the testator, there can also his domicile; or
be a proper incorporation by reference (3 i. Law of the place of revocation (CIVIL
PARAS, supra at 135). CODE, Art. 17)
ili. Follow the law of the place where the
will was made (by analogy with the rules
on revocation where the testator is a
REVOCATION OF WILLS non-Philippine domiciliary) (BALANE,
AND TESTAMENTARY Jottings and Jurisprudence in Civil Law
(Succession), (2016), p. 184
DISPOSITION “hereinafter, BALANE, Succession].
(ARTS. 828-834) MODES OF REVOCATION: (LID)
© 1. By Implication of Law (CIVIL CODE, Art.
830){PUJ-BALAT)
REVOCATION The: kind. of revocation produced by operation of
It is an act of the mind, terminating the potential law When certifi acts or events take place after
a will has een made, rendering void or useless
capacity of the will to operate at the death of the
testator, manifested by some outward or visible act either the whole will or certain testamentary
or sign, symbolic thereof (JURADO, Succession,
dispositions therein (3 PARAS, supra at 138).
supra at 116).
a. Preterition shall annul the institution of heir
A will may be revoked by the testator at any time (CIVIL CODE, Art. 854);
before his death. Any waiver or restriction of this b. Act of Unworthiness by an heir,
right is void (CIVIL CODE, Art. 828). devisee/legatee revokes testamentary
provisions in his favor (CIVIL CODE, Art.
After a will has been probated during the lifetime of 1032);
the testator, it does not necessarily mean that he c. Judicial action for recovery of debt revokes
a legacy of credit/remission of debt (CIVIL
cannot alter or revoke the same (Palacios v.
Palacios, G.R. No. L-12207, December 24, 19539). CODE, Arts. 935 and 936);
d. If both spouses of the subsequent marriage
in Art. 41 (Family Code) acted in Bad faith,
NATURE AND EFFECT OF said marriage shall be void ab initio and
REVOCATION testamentary dispositions made by one in
Upen revocation, the will or testamentary disposition favor of the other are revoked by operation
intended to be revoked ceases to exist and is of law (FAMILY CODE, Art. 44),
inoperative as if it has never been written. A will Alienation, transformation, or loss of
®

being a unilateral disposition of property, acquires bequeathed property revokes a legacy of

binding force only at the death of the festator, it such-property (CIVIL CODE, Art. 957);
follows that no present rights are conferred at the f. When there is a decree of Legal separation
time of its execution, and no title vests in the (FAMILY CODE, Art. 63, Par. 4);
beneficiary during the life of the testator (JURADO,
Succession, supra at 117).
 SUCCESSION
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NOTE: In legal separation, a spouse may still cleanly and unniistakably manifest the
inherit from the other spouse, unless found intention of the testator to revoke the
guilty of the legal grounds of legal previous will (Id. at 127).
separation (FAMILY CODE, Art. 63, Par. 4).
An invalid revoking will cannot revoke,
Annulled or void ab initio marriages revoke but a valid though ineffective will can
testamentary dispositions made by one revoke (3 PARAS, supra at 146).
spouse in favor of the other (FAMILY CODE,
Art. 50 in relation to Art. 43, par. 5), i. Implied — when the provisions thereof
The Termination of the subsequent are partially or absolutely inconsistent
marriage in Art. 41 (Family Code) revokes with those of the previous wills. May be
testamentary dispositions made by the effected only by: :
innocent spouse in favor of the guilty spouse (1) Subsequent will
(FAMILY CODE, Art. 43 Par. 5). (2) Codicil

By Subsequent Instrument (CIVIL CODE, Subsequent wills which do not revoke the
Art. 830) previous ones in an express manner, annul
only such dispositions in the prior wills as
Requisites for a Valid Revocation by a are inconsistent with or contrary to those
Subsequent Instrument (DE LEON, . contained in the later wills (CIVIL CODE,
Succession, supra at 184-185): (FACE) Art. 831).
a. The subsequent instrument must comply
with the Formal requirements of a will; (Molo Two separate and distinct wills may be
v. Molo, G.R. No. 1-2538, September 21, . probated if one does not revoke the other
1951, citing Samson v. Naval, G:R. No. L- and provided that the statutory requirements
11823, February
11, 1918); Co “relative 10 the execution of wills have been
The subsequent instrument must be complied with (Merza v. Porras, G.R. No. L-
Admitted to probate; 4888, May: 2b, 1953).
The testator must possess testamentary
Capacity; and By Destruction of the Will (CIVIL CODE,
The subsequent instrument must either Art. 830)
contain an Express révocatory: clause or be
incompatible with ithe prior - will “(CIVIL . Requisites’ a LEON. Succession, supra at
CODE, Art. 831, DE LEON, Stceession, 185): {TITO-C) ~
supra at 184-185). a, Performed by the Testator himself or by
some other person in his presence, and by
i. Express — there isa revocatory clause his express direction;
expressly revoking the previous will ora”
part thereof. It may be effected by: Effect-of Unauthorized Destruction
(1) Subsequent will A will may stil be proved as lost or
(2) Codicit destroyed. However, this is possible only if
the will is attested; if the will is holographic,
If the revocation is partial, it will it cannot be probated if it is lost, even if the
have the effect of republishing the loss or destruction was unauthorized (Gan
will as of the date of the codicil with v. Yap, G.R. No. L-12190, August
30, 1958),
respect to all parts not revoked. If unless a copy survives.
the revocation is total, there is no
republication (JURADO, Ratification of an unauthorized destruction
Succession, supra at 121). is however permissible, provided sufficient
proof of this is presented (3 PARAS, supra
(3) Non-testamentary writing executed at 140).
as in case of wills — does not contain
an affirmative disposition of the NOTE: If burned, torn, cancelled, or
property, thus it cannol impliedly - obliterated by some other person, without
revoke a will as it cannot be said to the express direction of the testator, the will
be inconsistent with the dispositions may still be established, and the estate
contained in the will ({d. at 122). distributed in accordance therewith,
provided the following "are established:
In all of the three ways of express (CDF)
revocation, the revocatory clause must i. Contents;
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i. Due execution; and was torn with animus revocandi (JURADQ,

ii. Fact of unauthorized destruction (3 Succession, supra at 126).
TOLENTINO, supra at 138)
The act of tearing must be a COMPLETE ACT.
b. Testator must have Testamentary capacity Otherwise, if the testator desists voluntarily or
at the time of performing the act of through the persuasion of others before the act
destruction; of destruction could be consummated, the act of
revocation has not also been consummated.
c. Intent to revoke (animus revocand) Hence, it produces no effect (id).

The intention to revoke must appear clearly Tearing of even the signature alone constitutes
and unequivocally. An act of destruction revocation, provided the other requisites are
which is dane accidentally, by mistake, or as present. This i5 because the signature goes to
a result of fraud, undue influence, does not the very heart of the will (3 PARAS, supra al
operate as a revocation (JURADO, 142).
Succession, supra at 123).
Humpty Dumpty Rule
The intention to revoke must concur with an Once a will has been torn and revoked it can no
overt act, manifesting the intention. Neither longer be revived by putting the pieces together
destruction without intention nor intention (Pier 66 Co. v. Poulos, 542 So. 2d 377).
without destruction would result to
revocation of the will {Id.). NOTE: The mere act of “crumpling”: or the
removal of the “fastener” binding the pages of a
d. The act must be any of the Qvert acts will does not constitute revocation, even though
specified; there be animus revocandi. However, in Roxas
sk. Roxas, 48 0.G. 2177, the court impliedly
It must be a mental process demonstrated allowed: © mpling as one of the overt acts,
by some outward and visible sign provided there is animo revocandi (3 PARAS,
(JURADO, Succession, supra at: 123-124). supra at 142).

e. ltmust be a Completed act Canceling

The act is stil deemed to be in the Effected By diagonal or horizontal lines, or criss-
subjective phase if the testator intends todo crosses; [Link]. word “cancelled”, written upon
a further act. the faga of: the will or upon any part thereof
(JURADO, Succession, Supra at 127-128).
Burning ‘
There must be at least a burning of a part’of the Marks made upon a will by the testator are
paper on which the will is written, althotigh a very affective as a revocation by cancellation,
slight burn wilt suffice (JURADO, Succession, regardless of their depth, faintness, or other
supra at 126). characteristics, if they were placed there for the
purpose of canceling the will (id.).
It is sufficient if a small part of the instrument
itself be burned even though the entire writing The cancellation need not render the wilt illegible
itself be left untouched (3 PARAS, supra at 140). (ld.).

if the document itself is not bummed, even Obliterating

partially, but only the envelope. in which it was Effected by erasing or scraping off any word or
placed was burned, there is no revocation of the disposition, which the testator intends to revoke.
will. But where the maker of the will threw it upon Obliteration renders the will illegible (/d.).
the fire with the intent to revoke, and it was
burned through in three "places, this was NOTE: Revocation by cancellation or
considered a revocation, although the writing obliteration may be partial or total as opposed to
remained intact, and although it was rescued Revocation by Burning or Tearing which is
and preserved without the knowledge of the always total. The revocation is partial if it is
testator {3 TOLENTINO, supra at 135). ~O-
directed against a nonessentiai part of the wii
and total if it is directed against an essential part
Tearing thereof (/d.).
A slight act of tearing is generally held sufficient;
23
Lik
although the greater the degree of tearing the Illustration: X, the testator, asked his friend Y OQ
stronger is the presumption that the instrument to get his will and burn it for him. Y then burned Q
7)
 SUCCESSION
Civil Law

the will in a separate room and returned with of the old to depend upon the efficacy of the new
only the ashes. Is there a valid revocation? disposition intended to be substituted, the revocation
will be conditional and dependent upon the efficacy
Answer: The revocation was not valid. It was’ of the new disposition; and if for any reason, the new
not done in the presence of the testator as will intended to be made as a substitute is
provided for by Article 830(3) of the Civil Code. inoperative, the revocation fails and the original will
remain in full force (Vda. De Molo v. Molo, G.R. No.
DOCTRINE OF PRESUMED L-2538, September 21, 1951).
REVOCATION
The earlier will can still be admitted to probate under
In the absence of other evidence, it shall be
the principle of "dependent relative revocation”. The
presumed that the testator destroyed the will with theory on which this principle is predicated is that the
animus revocandi:
testator did not intend to die intestate. And this
1. Where the will cannot be found following the
intention is clearly manifest where he executed two
death of the testator and it is shown that it was wills on two different occasions (Vda. de Molo v.
in the testator’s possession when last seen;
Molo, G.R. No. L-2538, September 21, 19571).
2. Where the will cannot be found following the
death of the testator and it is shown that the
testator had ready access to it, and REVOCATION BY MISTAKE
3. Where it is shown that the will was in the custody A revocation of a will based on a false cause or an
of the testator after its execution, .and legal cause is null and void (CIVIL CODE, Art. 833).
subsequently, it was found among the téstator’s
effects after his death in such state-of mutilation, The false or illegal cause must appear upon the face
cancellation or obliteration as represents-@ of the will. ~
sufficient act of revocation within the meaning of
the applicable statute (id. at 128-129). . However, where the facts alleged by the testator
were peculiarly within his knowledge, or the testator
The efficacy of the revocatory clause does not must have krown the truth of the facts alleged by
depend on the testamentary dispositions of the him, it does not matterswhether they are true or not;
revoking will, unless the: testator so provides. the revocation 1s absolute (3 TOLEN INO. supra at
Revocation is, generally speaking, an .absclute 142).
provision, independent of the ; acceptance or
capacity of the new heirs (BALANE, Succession, NOTE: The recagnitiorof an illegitimate child does
supra at 193-194). not lose its legal effect, even though the wilt wherein
it was made should be revoked (CIVIL CODE, Art.
Example: X executes a will, naming A as. his 834). The revoked will is still an "authenticated
universal heir. Two years later, X executes a second writing” under Art. 278.
will revoking the first and naming.B as his universal :
heir. X then dies and B renounces the Inheritance. lilustration: X instituted Y, his friend, as heir for the
The first wilt remains revoked (id). . free portion of his estate. X then revoked the will.
May-Y subsequently contest the will?
DOCTRINE OF DEPENDENT RELATIVE “{ revoke the will for Y”
“I revoke the will for Y as he is already dead”
REVOCATION “I revoke the will for Y because we are not
If a testator revokes a will with a present intention of friends anymore”
making a new cne immediately and as a substitute,
and the new will is not made, or if made, fails to take Answer: Yes, but only in so far as reason "B” (or for
effect for any reason, it will be presumed that the the reason that he is dead) for being untrue. in such
testator preferred the old will than intestacy, and the case, the revocation is null and void, and will not take
old one will be admitted to probate in the absence of effect.
evidence overcoming the presumption, provided its
contents can be ascertained (JURADO, Succession,
supra at 129).

Being merely a presumed intention, it does not

prevail as against actual evidence of the testator's
intention (id. at 130).

NOTE: Where the act of destruction is connected

with the making of another will so as to fairly raise
the inference that the testator meant the revocation
 MEMORY AID
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EFFECTS OF REPUBLICATION BY
REPUBLICATION AND VIRTUE OF A CODICIL:
REVIVAL OF WILLS 1. Codicil revives the previous
Succession, supra at 197); and
will (DE LEON,

(ARTS. 835-837) 2. The old will is republished as of the date of the

codicil, and makes i effective, as it were, from
the new and later date (3 PARAS, supra at 210).
3. A will republished by a codicil is governed by a
REPUBLICATION statute enacted subsequent to the execution of
It is an act of the testator whereby he reproduces in the will, but which was operative when the codicil
was executed (/d.).
a subsequent will the dispositions contained in a
previous will which is void as to its form or executes
a codicil to his will (JURADO, Succession, supra at REVIVAL
132). Restoration to validity of a previously revoked will by
operation of law (JURADO, Succession, supra at
KINDS: 133).
1. Express or Republication by Re-execution
(CIVIL CODE, Art. 835) ON V. REVIVAL
If the testator reproduces in a subsequent will
dispositions contained in a previous one which
is void as to its form. The purpose of
republication is to cure the will of its formal
defects. Takes place by an act | Takes place by
of the testator operation of law’
2. Constructive or Republication by Reference
(CIVIL CODE, Art. 836)
If the testator for some reason or=another
executes a codicil to his will. : Corrects
ST
exdrinsic and Restores a revoked will
intrinsic defects.
NOTE: Art. 836 must be considered as the general (id. at 133).
rule and Art. 835 as the exception. Reproduction in
the codicil is required only whér the original will is EXAMPLES OF REVIVAL
void as to its form; in all other cases, reference to the 1. While“ omission of a compulsory heir in the
original will suffice to republish it through thé:codicil. institution of heirs annuis the institution, still if the
Thus, a codicil may republish and validate a will .-omitted heir dies ahead of the testator, the
which was originally void for want of testamentary institution is revived, without prejudice to the
capacity or on account of undue influence upon the
right of representation (CIVIL CODE, Art. 854).
testator (3 TOLENTINO, supra af 144).
2. If after making a will, the testator makes a
ustration: X made a will in 2010 but only two
second will impliedly revoking the first, the
witnesses were present. in 2018, he modified the will
revocation of the second will revives the first will
by a codicil. If he dies, should the will be allowed? as implied from Art. 837 (3 PARAS, supra at
153).
Answer: No. The 1985 will was void as to its form
because it only has two witnesses and therefore Art.
835 should apply. The testator mus! reproduce in a
KINDS:
subsequent will the dispositions contained in the 1. Express Revocation of the First Will
1985 will. He cannot merely use a codicil. If after making a will, the testator makes a
second will expressly revoking the first, the
NOTE: The word “form” in Art. 837 refers to those revocation of the second will does not revive the
covered by Art. 805 like defect in the number of first will, which can be revived only by another
witnesses, lack of or fatal defect in the attestation, will or codicil (CIVIL CODE, Art. 837).
lack of acknowledgement etc., but not to vitiated Zz
consent or to lack of testamentary capacity (3 2. Implied Revocation of the First Will Q
B=
PARAS, supra at 152). Where there is merely an inconsistency between
two wills, but there is no revocatory clause, upon 8
Ad
destruction of the second will, the first is
Q
automatically revived, regardless of the
o
intention of the testator, provided that the first
>
 SUCCESSION
Civil Law

will has been preserved undestroyed (JURADO,

Succession, supra at 133).
ALLOWANCE AND
Mlustration: Suppose, however, that instead of DISALLOWANCE OF
an express revocalory clause, the dispositions
found in the second will are merely WILLS
INCONSISTENT with those found in the first — (ARTS. 838-830)
shall the express revocation of the second will
by a third will or a codicil result in the revival of
the first wilt?
PROBATE
Answer: The Code does nol provide for the A special proceeding mandatorily required for the
effect of the revocation of the second will in case purpose of establishing the validity of a will. The
the second will merely impliedly revoked the first procedure to be followed is that which is provided for
will {/d.). in the New Rules of Court (JURADO, supra at 134-
135).
NOTE: Ki the revoking will be disallowed
because it is not valid, it cannot produce the NOTE: Probate is one thing; the validity of the
cffect of annulling the previous will (Samson v. testamentary provision is another. The first decides
Naval, G.R. No. 11823; February 11, 1918). the execution of the document and the testamentary
capacity. of the testator; the second deals with
Hustration: Assuming that Will NG. Twas © descent and distribution (Sumilang v. Ramagosa,
expressly revoked by Will No. 2,-Will No. 2 was [Link],L- 23135, December 26, 1967).
subsequently revoked by Will No. 3. Whats the
effect of the revocation of Will No. 2 if Will No.-3
contains a revocatory. clause
‘WHEN PROBATE IS COMMENCED
but no
testamentary disposition and how. ‘wilt the estate 4. Ante Morten, ‘during the lifetime of the
be distributed? testator - 3
~ The testator himself may, during his lifetime,
Answer: The estate would be distribtited 28 if petition the; court -having jurisdiction for the
the decedent died intestate, A will (Will No.1) allowance of his will (CIVIL CODE, Art. 838).
expressly revoked by ia 2M will (Wilk No. 2)
cannot be revived by the revotation of the will NOTE: Aftef a will has been probated during the
(Will No. 3) revoking i (Will *No. 2). (CIVIL lifetime of the testator, it does not necessarily
CODE, Ars. 837 in relation to Arts. 830, par. 2 mean that he cannot alter or revoke the same
and 960, par. 1). before his death: (Maloles Il v. De los Reyes,
. G.R Nos. 129505 & 133359, January 31, 2000).
PRINCIPLE OF INSTANTER
When there is an express revocation of the first will . Post Mortem: after the death of the
ce
by the second will, the third will cannétrevive the testator
first will. Express revocation is always final. and - — By any person interested in the estate.
executory.
NOTE; Formal validity is the only legal issue in
The revoking clause in the second will is not probate of a will (DE LEON, Succession, supra at
testamentary in character, but operates to revoke 200). )
the prior will upon the execution of the will It is not necessary that the original of the will be
containing it; hence, the revocation of the second attached to the petition [for probate]. That the
will does not revive the first will which has already annexing of the original will to the petition is not a
become a nullity (3 TOLENTINO, supra at 144- jurisdictional requirement is clearly evident in
145). Saction 1, Rule 76 of the Rules of Court which allows
the filing of a petition for probate by the person
named therein regardless of whether or not he is in
possession of the will, or the same is lost or
destroyed (Heirs of Fran v. Salas, G.R. No. 53546,
June 25, 1992).

If the holographic will has been lost or destroyed and

no other copy is available, the will cannot be
probated because the best and only evidence is the
handwriting of the testator in said will. However, a
 MEMORY AID
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photostatic copy or xerox copy of the holographic will RATIONALE: Probate proceedings are not
may he allowed becauso comparison can be made established in the interest of the surviving heirs, but
with the standard writings of the testator(in Re: primarily for the protection of the expressed wishes
Bonilla v. Aranza, G.R. No. 1-58509, December 7,
of the testator (/d.).
1982).
Itis true that the rights of the parties should not be
NECESSITY OF PROBATE left hanging in uncertainty for periods in excess of
The law expressly requires it. No will shall pass the maximum period of ten (10) years allowed by
either real or personal property unless it is law, but the remedy is for the other interested person
proved and allowed in accordance with the either:
Rules of Court (CIVIL CODE, Art. 838). Even if 1. To petition for the production of the wil} and for
only one heir has been instituted, there must still its probate (/d.);
be the judicial order of adjudication (Lopez v. 2. To inflict upon the guilty party the penalties
Gonzaga, G.R. No. L-18788, January 31, 1964). prescribed by Rule 75 of the Rules of Court (/d.);
or
2. Probate is a proceeding in rem and therefore 3. To declare the unworthiness of the heir under
cannot be dispensed with or substituted by any Art. 1032 of the Civil Code for concealing or
other proceeding, judicial or extrajudicial without suppressing the will (Guevare v. Guevara, G.R.
offending public policy (JURADO, Succession, No. L-5405, January 31, 1956).
Supra at 135).
The will and the codicil may or may not be probated
3. The right of a person to dispose of his property simultaneously.
by virtue of a will may ba rendered nugatory in One who has or can have no interest in succeeding
the matter of the Testate Estate of the late: a decedent cannot oppose the probate of his alleged
Agustin Del Valle, G.R. No. L-11608, September J E = will
Poe (Butiong v. Surigao Consolidated Mining, G.R.
24, 1959), and 3938: July 31, 1968).
4. Because absent legatees and devises, or such ESTOPPEL. NOT APPLICABLE TO
of them as may have no knowledge of the will, PROBATE PROCEEDINGS
could be cheated of their inheritance thru-the
The rule of estoppel does not apply to probate
conclusion of some of the heirs who might agree
proceedings for *they are invested with public
to the partition of the estate among themselves
LE interest nd if estoppels would be applied, the
to the exclusion of others (Jn the-matter of the
Testate Estate of the late Agustin Del Valle, G.R. the truth may be blocked (Alsua-
© Betis v, Cott of Appeals, G.R. No. L.-46430, July 30,
No. L-116089, September 24, 1959),
1979).
VENUE:
1. Resident citizen or alien
gment or decree of a court with jurisdiction to
— RTC in the province in which he resides at the
probate a will is:
time of his death.
Conclusive as to the validity of the will;
2. Non-resident citizen or alien NOTE: Especially the testamentary capacity
~ RTC in which his estate is located (RULES OF
and due execution of the will (3 PARAS, supra
COURT, Rufe 73, Sec. 1).
at 164).
2. Not subject to collateral attack, but stands as
Residence
final, if not modified, set aside, or revoked by a
Actual or physical place of abode of the deceased as
direct proceeding, or reversed on appeal to a
distinguished from his legal residence or domicile
(Fule v. CA, G.R. no. L-40502, November 28, 1978). higher court; and
3. Conclusive to the whole world (JURADO,
NOTE: The first court taking cognizance of the Succession, supra at 142).
settlement of the estate of a decedent shall exercise
NOTE: Formal notice is an idle ceremony where the
jurisdiction to the exclusion of all other courts
adverse party had actual knowledge. &
(RULES OF COURT, Rule 73, Sec.1).
Fraud as a ground
IMPRESCRIPTIBILITY OF PROBATE extrinsic fraud.
for relief must be based on
[5
The statute of limitations is not applicable to probate Se
of wills (JURADO, Succession, supra at 137). Where part of the estate is not distributed, recourse Ad
is not to re-open probate proceedings, but motion for O
SQ
-
NE
 SUCCESSION
Civil Law

"execution or action for reconveyance (Heirs of the when the defect of the will is apparent on its face and
Late Jesus Fran v. Salas, G.R. No. L-53546, June the probate of the will may become a useless
25, 1992). ceremony if it is intrinsically invalid. The intrinsic
validity of a will may be passed upon because
INSTANCES WHEN ALLOWANCE MAY "practical considerations” demanded it as when
there is preterition of heirs or the testamentary
BE SET ASIDE provisions are of doubtful legality. Where the parties
GENERAL RULE: Since a proceeding for the agree that the intrinsic validity be first determined,
probate of a will is essentially one in rem, a judgment the probate court may also do so.
allowing a will shall be conclusive as to its due
execution (JURADO, Succession, supra at 144). in Nuguid v. Nuguid (G.R. No. L-23445, June 23,
1966), the Supreme Court held that, if the case was
EXCEPTIONS: (ARSA) to be remanded for probate of the will, nothing will
By means of an Appeal (CIVIL CODE, Art. 838 be gained. On the contrary, this litigation would be
par. 4), protracted. And for aught that appears in the record,
2. By means of a petition for Relief from judgment in the event of probate or if the court rejects the will,
by reason of fraud, accident, mistake, or probability exists that the case will come up once
excusable negligence (RULES OF COURT,
- again before us on the same issue of the intrinsic
Rule 38, Sec. 2); validity or nullity of the will — thus resulting to a waste
3. By means of a petition to Set aside the judgment of time, efforl, expense, plus added anxiety.
by reason of lack of jurisdiction or lack of
procedural due process; or In Nepomuceno v. CA (G.R. No. L-62952, October
4. By means of an action to Annul judgment by 9,71985), the Court ruled that “the court can inquire
reason of extrinsic or collateral fraud (JURADO, as to-thé intrinsic validity of the will because there
Succession, supra at 144). was an express statement that the beneficiary was
a mistress In Article Il! of the disputed Will, the
SCOPE OF PROBATE PROCEEDINGS testator statéd that respondent was his legal wife
GENERAL RULE: In probale proceedings, the from whom he had been estranged "for so many
probate court cannot inquire:into the intrinsic validity years." In Article IV, he stated that he had been living
of testamentary provisions. The only questions that as man’ and wifé with. the petitioner since 1952.
may be determined by the probate court. are the There is no guestion-about the fact of a prior existing
following: (ICE) marriage when the testator executed his Will. There
1. Identity of the will (whether the will presented is < also no [Link] petitioner and Mr. Jugo
the last will and testament of the testator), ved together in an ostensible marital relationship for
2. Testamentary Capacity of the testator at the 22 years until:his death.
time of the execution of the will; and
3. Due Execution of the will (whether there was Criminal action will:not lie against the forger of a will
compliance with the requisites and solemnities which-had been duly admitted to probate by a court
prescribed by law (Jd. at 138-139). of ‘Competent jurisdiction (Mercado v. Santos, G.R.
Mo. 45629, September 22, 1938).
NOTE: The probate or administration Court may
decide prima facie the ownership of the property, but The fact that the will has been allowed without
such determination is not final and is without apposition and the order allowing the same has
prejudice to the right of interested parties to ventilate become final and executory is not a bar to the
the question of ownership in a proper action (Teng presentation of a codicil provided it complies with all
_v. Ting, G.R. No. 184237, September 21, 2016). the formalities for executing a will, It is not
necessary that the will and codicil be probated
The [probate] court had jurisdiction to act in the together as the codicil may be concealed by an
intestate proceedings with the caveat that, due to its interested party. They may be probated one after the
limited jurisdiction, it could resolve questions of itte other (Macam v. Gatmaitan, G.R. No. 40445, August
only provisionally. It is hormbook doctrine that “in a 17, 1934).
special proceeding for the probate of a will, the
question of ownership is an extraneous matter which The Probate Court may pass upon the title to a
the probate court cannot resolve with property, but such determination is provisional, not
finality (Sanchez v. Court of Appeals, G.R. No. conclusive, and is subject to the final decision in a
108947, September 28, 1997). separate action to resolve title (Valero Vda. de
Radriguez vs. Court of Appeals, G.R. No. L-39532,
EXCEPTION: Practical considerations July 20, 1979).
In Reyes v. Court of Appeals (G.R. No. 12089,
October 30, 1997), the Supreme Court held that,
 t

MEMORY AID
Bay Bada University College of Law - RGCT Bar Operations Center

GROUNDS FOR DISALLOWANCE OF A depriving the latter of a reasonable freedom of

WILL: (F2UMIS) choice (CIVIL CODE, Art. 1337).
Formalities required by law have not been
complied with; Fair arguments, persuasion, appeal to emotions,
and entreaties which, without fraud or deceit or
2. Will was executed through Force or under
actual coercion, compulsion or restraint do not
duress, or the influence of fear, or threats;
constitute undue influence sufficient to invalidate a
3. Will was procured by Undue and improper
pressure and influence on the part of the will (Barreto v. Reyes, G.R. No. L-5830, January 31,
1556).
beneficiary or of some other person; }
4. Testator acted by Mistake or did not intend that
the instrument he signed should be his will at the
To be sufficient to avoid a will, the influence exerted
must be of a Kind that so overpowers and subjugates
time of affixing his signature thereto;
5. Testator was Insane, or otherwise mentally
the mind of the testator as to destroy his free agency
and make him express the will of another rather than
incapable of making a will, at the time of its
his own (Pascual v. De la Cruz, G.R. No. L-24819,
execution; and
May 30, 1968).
6. Signature of the testator was procured by fraud
(CIVIL CODE, Art. 839).
The contention that a will was obtained by undue
influence or improper pressure cannot be sustained
NOTE: The list is exclusive (Ajero v. CA, G.R. No.
on mere conjecture or mere suspicion, as it is not
106720 September 15, 1994).
enough that there was an opportunity or a possibility
If any of the above grounds for disallowance is to exercise undue influence, or that it might have
been exercised (Pascual v. De ja Cruz, G.R. No. L-
proved, the will shall be set aside as void. Even if the
grounds for disallowance is that the testator was not
\. 24819, May 30, 1969).
of sound mind or below 18 at the time of the
execution of the will, the will shall be void and not
. [Link] fraud and undue influence cannot co-
merely voidable (1 RABUYA, supra at 820). exist” because they mutually oppose and exclude
each other that their joining as grounds for opposing
NOTE: Article 834 of the Civil Code which provides probale shows absence of definite evidence against
that the recognition of an illegitimate child does not the validity of the will (lcasiano v. Icasiano, G.R. No.
lose its legal effect, even though the will wherein it L-18979, Juné 30; 1964).
was made should be revoked - shall likewise apply
to a disallowed will. REVOCATION V. DISALLOW,

Violence — there is violence when in order to. wrest

consent, serious or irresistible force is employed
upon the testator (CIVIL CODE, Art. 1335).
act of the Given by judicial
Intimidation — when the testator is compelled:by a testator, decree.
reasonable and well-grounded fear of an imminent
and grave evil upon his person or property, or upon
the person or property of his spouse, descendants
With or without cause. Must always be for a
or ascendants, to execute the will (CIVIL CODE, Art. legal cause.
1335).

Mistake —pertains to "Mistakes of Execution” which

may either be: .
1. A mistake as to identity or character of the Maybe partial
or total. Always total except:
instrument which he signed; or when the ground of
2. A mistake as to the contents of the will itself fraud or influence for
(JURADO, Succession, supra at 158). exampte affects only
certain portions of the
Fraud — if by misrepresentation ‘and deception the will, | 2
testator is led into making a will different from that he
would have made but for the misrepresentation and
deception (/d. at 157). 172]
Take place during the | Disallowance is usually hn.
lifetime of the testator. invoked after the
Undue influence — when a person takes improper
{estator's death.
advantage of his power over the will of another,
(DE LEON, Succession, supra at 232). QQ
i)
B
 SUCCESSION
Civil Law

RATIFICATION REQUISITES FOR A VALID

1. Ratification is not possible INSTITUTION:
— With respect to a will which does not comply 1. The will must be extrinsically valid, meaning:
with the formalities prescribed by law (CIVIL The testator must be capacitated;

Tw
CODE, An. 839 pars. 1-2; JURADO, The formalities must be observed;
Succession, supra at 158). This is because a There must be no vitiated consent;
The will must have been duly probated; and

poo
void will cannot be ratified.
The will must have been the personal act of
2. Ratification is possible the testator.
— With respect to a will which was executed
through violence, intimidation, undue influence, 2. The institution must be intrinsically valid,
fraud or mistake (CIVIL. CODE, Art. 839 pars. 3- meaning:
6(ld.). a. The legitime must not be impaired;
b. The heir must be certain or ascertainable;
and
¢c. There should be no preterition.
INSTITUTION OF HEIRS 3. The institution must be effective, meaning:
(ARTS. 840-856) a. There must be no predeceased heir;
b. There must be no repudiation by the heir;
and
¢;. There must be no incapacity of the heir
INSTITUTION ([Link], supra at 197).
An act by virtue of which a testator designates in his
will the person or persons who are to suceged him in LACK OF INSTITUTION DOES NOT
his property and transmissible fights and obligations INVALIDATE A WILL
(CIVIL CODE, Art. 840). .
A will is valid, eventhough:
“1. It does not contain an institution of an heir;
NOTE: A child already congeived at the time of the
2° “The: institution does not comprise the entire
death of the decedent is (capable of succeeding © estate; or ss
provided it be born later under the conditions
3. The: heir instituted does not accept the
prescribed in Article 41 (evi CODE, Att 1025,
inheritance orisincapacitated to succeed (CIVIL
par.2). CODE, Art. 841).
The testamentary dispositions made in accordance
For civil purposes, the fetus is considered bam i itis
with. the law shall be complied with and the
alive at the time it is completely delivered from the remainder of the estate shall pass to the legal heirs
mother's womb. However, if the:fetus had: an'intra- “{CIVIL-CODE, Art. 841). In other words, there is
uterine life of less than seven months; it's. not
mixed succession.
deemed bom if it dies within twenty-four hodrs:after™
its complete delivery from the maternal womb (CIVIL
CODE, Art. 41). . FREEDOM OF DISPOSITION (CIVIL
CODE, ART. 842):
FUNDAMENTAL BASIS OF THE LAW OF 1. if the testator has no compulsory heirs, his
TESTAMENTARY SUCCESSION freedom of disposition is absolute in character.
The whole estate is disposable.
The doctrine that the will of the testator, freely
expressed in his last will and testament, is, as a NOTE: The testator must still respect the
general rule, the supreme law which governs the
restriction imposed by special laws (Arayata v.
succession (JURADO, Succession, supra at 159). Joya, G.R. No. 28067; March 10, 1 928).

ORDER OF PREFERENCE: (ISRAI) If the testator has compulsory heirs, his freedom
ny

institution of heir (CIVIL. CODE, Art. 840), of disposition shall extend only to the disposable
Substitution of heir (CIVIL CODE, Art. 857); free portion of his estate, but not to the legal
wn

Right of Representation (GIVIL CODE, Art. 970); portion or legitime (JURADO, Succession, supra
Right of Accretion (CIVIL CODE, Ait. 1015); and at 162).
aE

Intestacy (CIVIL. CODE, Art. 960)

REASON: Under our system of compulsory
succession, there is always a portion of the
testator's estate known as the legitime which is
reserved by operation of law for the benefit of certain
 LE 292507 eon ]

MEMORY AID
San Beda University Colisge of Law - RGUT Bar Opsrations Center

heirs who are therefore called compulsory heirs, and

over which the testator as a general rule can have
TEST TO DETERMINE THE VALIDITY OF
no testamentary control (id. at p. 161).
INSTITUTION
‘The proper test in order to determine the validity of
an institution of heir is the possibility of finally
RESTRICTIONS ON DISPOSITION:
ascertaining the identity of the instituted heir either
1. The estate of the testator shall be liable for the
by intrinsic or extrinsic evidence (JURADO, supra at
latter's obligations; and 163).
2. The testator cannot dispose of or encumber the
legitime of the compuisory heirs (DE LEON, The test is specifically applicable to the following
Succession, supra al 235). cases:
1. If the name and surname of the instituted heir
FORMS OF INSTITUTION: has been omitted by the testator (CIVIL CODE,
The testator shall designate the heir by his name and Art. 843);
surname. However, this form is not mandatory. The 2. If there has been an error with respect to the
designation may be made in any other form, as long name, surname, or circumstances of the
as there will be no doubt as to the identity of the instituted heirs (CIVIL CODE, Art. 844);
heir/s instituted (CIVIL CODE, Art. 843). 3. Ifthe name, surmame, and circumstances of the
instituted heir are the same as those of other
Dispositions in favor of an unknown person (persona persons (CIVIL CODE, Art. 844); and
incerta) shall be void, unless by some event or 4. If an unknown or uncertain person has been
circumstances his identity becomes certain (CIVIL instituted. (CIVIL CODE, Art. 845).
CODE, Art. 845).
i. NOTE: ff the doubt as to who is instituted cannot be
NOTE: A persona incierta is one who is not * “ resalved, then it is the same as if the testator has not
determined or individualized, thus making | it expressed his will (3 TOLENTINO, supra at 173).
impossible to know who is meant by the decedent (3
TOLENTINO, supra at 176). PRESUM TIONS ON INSTITUTION OF
An “Unknown Person” means one who cannot be
HEIRS: (EIS)
identified from the will; not one who is.@ stranger to Presumption of Equality
the testator (/d.). When heirs were instituted without designation
of shares; they are deemed to inherit in equal
The institution of an unknown petson will still'be void... pats; (CIVIL: CODE, Art. 846).
even if by some future event he can be determined
when the determination of the heir is delegated by NOTE: This applies only when all of the heirs are
the testator to another. Itis void under Art. 785 of the of the same class or juridical condition. The
Civil Code (3 TOLENTINQ, supra at 177). ‘proper interpretation is that: if the testator has no
“ceniplisory heirs, apply the provision literally;
A disposition in favor of a definite class or group of however, if he has compulsory heirs, first satisfy
persons shall be valid (CIVIL CODE, Art. 845), their legitime, then apply the rule with respect to
the disposable free portion (JURADO,
SPECIAL Succession, supra at 165-166).
KINDS OF CLASS
INSTITUTIONS llustration: X stated in his will: “I give A, B, and
1. Poor in General (CIVIL. CODE, Art. 1030) C as my heirs, my entire estate.” The net value
2. Relatives of the Testator (CIVIL CODE, Art. 959) of the estate is P120,000. How much is each
3. A Person and his Children (CIVIL. CODE, Art. entitled?
848)
4. Brothers and Sisters of the Full and Half-Blood Answer: A, B, and C shall equally divide the
(CIVIL CODE, Art. 848) P120,000. Hence, each shall be entitled to
5. Institution of descendants and relatives of a P40,000 (CIVIL CODE, Art. 846).
legatee
2. Presumption of Individuality
NOTE: The rule of nearest excludes the farther will When the testator institutes some heirs
nol apply here. Therefore, all the descendants and individually and others calflectively, those
refatives will inherit per capita (Belen v. BPI, G.R. collectively designated shall be considered as
No. L-14474; October 31, 1960).
hn
individually instituted, unless it clearly appears BB
that the intention of the testator was otherwise wl
(CIVIL CODE, Art. 847). QQ.

=)
 SUCCESSION
Civil Law

Hiustration: Testator said in his will: “I hereby EXCEPTION: When it appears from the will that the
give my entire estate to A and B and the children testator would not have made the institution it he had
of C (D and E).” The net value of the estate is known the falsity of such cause (C/VIL CODE, Art.
P120,000. How much will each be entitled? 850).
- Answer: A, B, D, and E shall be entitled to REQUISITES FOR THE ANNULMENT OF
P30,000 each {CIVIL CODE, Art. 847). INSTITUTION OF HEIRS: (SF?)
1. Cause of institution of the heirs must be Stated
3. Presumption of Simultaneity in the will;
When the testator calls to the succession a 2. Cause must be shown to be False; and
person and his children, they are all deemed to 3. tt must appear from the Face of the will that the
have been instituted simultaneously and not testator would not have made the institution had
successively (CIVIL CODE, Art. 849). he known the falsity of the cause (Austria v.
Reyes, G.R. No. L-23079, February 27, 1970).
NOTE: “His children” refers not to the children
of the testator but to the children of the person
instituted as an heir (3 PARAS, supra at 210).
INSTITUTION IN ALIQUOT PARTS:
1. Rule if the entire inheritance is not
IHustration: Testator said in his will: *| hereby covered: :
give my entire estate to C and his children,
D. a. Testator has no intention {o make heirs as
and E. The net value of the estate is P120,000. “sole heirs— mixed succession (CIVIL CODE,
How much will each be entitled? + Apt. 851).

Answer: C, D, and E shall each get P40; 000 -... Example;

(CIVIL CODE, Art. 849). TA=2/5;, B=1/5; C= 1/5
* The remainder of 1/5 shall pass to the legal
INSTITUTION OF BROTHERS AND heirs.
SISTERS b. Testator intends to make the heirs as sole
In case some of full blood and others of half- blood: feirs— each ‘part shall be increased
1. Testate Succession proportionately (ci CODE, Art. 852).
The inheritance shall ‘be: distributed equally,
unless a different intention - sppears. {CVIL Fotis, therefore, evident that the rule stated in
CODE, Art. 848). EE . Art. 852 constitutes an EXCEPTION to the
2. Intestate Succession rule stated inthe second paragraph of Art.
Brothers and sisters of the full blood shall be 8517 It enunciates the principle that when
entitled to a share double™that of the, brothers. © there is a ¢onflict between the intention of
and sisters of the half-blood (CIVIL CODE; Art ihe. testator and his mathematical
1006). “computation, the former shall prevail
:(JURADO, Succession, supra at 171).
INSTITUTION BASED ON A dais
CAUSE (CIVIL CODE, ART. 850) va Rule if the parts together exceed the
GENERAL RULE: The statement of a false cause inheritance
for the institution of an heir shall be considered as Each part shall be reduced proportionately.
NOT written. (CIVIL CODE, Art. 853.)

lllustration: “I hereby institute my student X as my Formula of Share:

heir for having topped the bar examination of 2018.” (Aggregate Amount of the Estate x Amount of
If X was not the top-notcher, would he still inherit? Share) + Total Amount of Share

Answer: Yes, because the false cause or reason is ILLUSTRATION OF INSTITUTION OF

considered as not written. HEIRS UNDER ARTS. 852 AND 853
1. Testator X stated in his will, “l institute A and B
REASON FOR THE LAW: The real cause is the
as my heir. Ato ¥ and B to ¥ of my estate. The
testator’s liberality, the mention of the bar topping
net value of the estate of X-is P120,000. How will
being merely incidental, for even if had X topped the
the estate be distributed, assuming that A and B
bar, the testator would not have been bound to
were intended to be the sole heirs of the whole
reward him, were it not for the provision in the will.
estate. (Article 852)
 TUBB Teskon

MEMORY AID
San Beda University College of Law - RGCT Bar Operations Center

First step: Compute the aggregate share of all Hence:

heirs (according to the will):
A =60T - 12T = 487
A =% of 120T = 60T B=30T- 6T=247
B= 0f120T = 30T C=60T-12T=48T
TOTAL 90T TOTAL 1207
Second step: Compute the remaining
portion:
free PRETERITION
Omission in the testator’s will of one, some, or all of
Net estate =120T
the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born
Share (will) = (90T)
TOTAL 30T after the death of the testator (CIVIL CODE, An.
854).
Third step: Distribute proportionately among the
heirs: It is essential that the omission of the compulsory
heir must be complete and total in character so that
he receives nothing from the testator at all.
A= 60T x30T =20I
Consequently, if the testator leaves any property to
20T
the heir who is alleged to have been omitted by any
title whatsoever, there can be no preterition
B= 30Tx30T =10T
(JURADO, Succession, supra at 177).
90T

Hence: Requisites: (CTS)

ih 1. The heir omitted must be a Compulsory heir in
A =60T + 20T = 80T the direct line, such as:
B = 30T +107 = 40T ‘a. Legifiate children and descendants (LCD),
TOTAL 1207 With respect to their legitimate parents and
asce dants (LPAY;
Testator X stated in his will, “| will give A’: of my LPA, with respect to their LCD;
estate, B Va and C 1. The net value of the estate llggitimate children (IC);
of X is P120,000. How will the
. Father and mother of IC; and
estale be
distributed? (Article 853) + . Adopted child (AC).

First step: Compute the aggregate share of ali

The or ‘must be complete and Total in
heirs (according to the will); character (that the omitted heir does not and has
not received anything at all from the testator "by
A =z of 120T = 60T any lie : whatsoever); and
B =% of 1207 = 30T
C=% of 120T = 60T
3. The compulsory heir omitted must Survive the
TOTAL 1507
testator (JURADO, Succession, supra at 174),
Second step: Compute the excess:
NOTE: The grandson born one year after the
decedent's death has no capacity to succeed,
Net estate = 120T
Share (will) = (1507) because, at the time of the latter's death, the
EXCESS (307) grandson was not yet born, nor was he even
“conceived (CIVIL CODE, Arts. 40 and 41).
Third step: Deduct the excess proportionately
among the heirs: The law considers as preterition the omission of
a compulsory heir in the direct line, whether
living at the time of the execution of the will or
60T x 30T =(12T)
It
>

Succession a

born after the death of the testator or those born

150T
after the execution of the will and before the
B= 30Tx30T =(6T) death of the testator so long as they are alive at
the time of the death of the testator (DE LEON,
150T
Succession, supra at 251).
C= B0T x30T =(12T)
150T
There is NO Total Omission when:
1. A deviseflegacy has been given to the heir by
the testator;
 SUCCESSION
Civil Law

A donation inter vivos has been previously given preteriion and when there is no preterition (3
2.
"to the heir by the testator; or PARAS, supra at 224).
3. Anything is left from the inheritance which the
heir may get by way of intestacy (DE LEON, PRETERITION V. DISINHERITANCE
Succession, supra at 248-249).

NOTE: The remedy of the affected heir in these

circumstances is the completion of legitime
under Art. 906 of the Civil Code, in case the Ma be intentional but is | Always voluntary.
value of the property received is less than the presumed to be :
value of the legitime (JURADO, Succession, involuntary.
supra at 177).

Effects:
1. Preterition annuls the institution of heir; The law presumes that | Done with legal cause
there has been merely | or reason.
NOTE: Preterition does not annul the institution some mistake or
of heir if the omitted compulsory heir should die oversight.
before the testator. The institution shall be
effectual, without prejudice to the right of
representation (CIVIL CODE, Art. 854, par.'2). Nullity “of the institution | Nullity is partial, ie.
2. The devises and legacies are valid insofar as «| is total resulting in total | only insofar as it may
they are not inofficious (CIVIL CODE, Arl. 854, intestacy, saving | prejudice the heir
par. 1); ~ NE devises andlegacies. disinherited.
3. Intestate succession. ensues (it. 3 PARAS,
supra at 221-222). : :

Where a one-sentence will{ institutes the ‘The omitted compulsory | If disinheritance is valid,
petitioner as the sole, universal heir and preterits heir gets his share from the compulsory heir is
the parents of the testatrix, and it contains no the entire estate, ie. merely restored to his
specific legacies or beguests, such universal not only his share-of the legitime, - and
institution of petitioner, by itself, is void (Nuguid legitime:-but also of the testamentary
v. Nuguid, G.R. No. L-234485, June 23,1966). free © portion not dispositions which are
disposed’ of by way. of inofficious are reduced.
NOTE: Omission of the surviving spouse (SS) does devises [Link]’
not constitute preterition. SS is not a compulsory heir
in the direct line. Therefore, the only effect of her
omission is a partial annulment of the institution of
Compulsory heir in the Compulsory heir may
heirs to the extent that her legitime is prejudiced;in be disinherited though
SS is still entitled to her legitime (DE direct:line is omitted.
other words, not in the direct line.
LEON, Succession, supra at 250). :
"(DE LEON, Succession, supra at 254-255).
Omission of the adopted child in the testator's will
constitutes preterition since he is by legal fiction Hustration: A, B and C are the legitimate children
considered a compulsory heir in the direct line. This of X. When X executed his will, he instituted as heir
is clear from the provisions of Arts. 978 and 984 to his entire estate A, B and his friend F. He also
which speak of the share of the adopted child in legal gave G a legacy of 307. The value of the net estate
or intestate succession (JURADO, supra at 176). is 1207. (a) Is there preterition? (b) What is the effect
of preterition on the institution of heirs? (c) What
REASON: Adopted child has the same rights as that about the legacy given to G? (d) How will the estate
of a legitimate child (R.A. 8552, Sec. 18). be distributed?

NOTE: The share of the compulsory heir omitted in Answer: )

a will must first be taken from the part of the estate 1. "There is preterition because 'C was not
not disposed of by the will, if any; if that is not mentioned in the will, nor was he given anything.
sufficient, so much as may be necessary must be 2. The institution of F will be annulled.
taken proportionally from the shares of the other 3. The legacy given to G is effective because it can
heirs given to them by will (CIVIL CODE, Ari. 855). ‘be contained within the free portion. in this case,
This article can apply both to cases when there is the free portion is (¥% of 120T) 60T. The legacy
 MEMORY AID
San Beda University Colege of Law - RACT Bar Operations Center

given to G in the amount of 30T can be Step 2: Reduction of the heirs’ shares.
contained therein.
4. The estate will be distributed as follows: Formula:
Voluntary share x Amount to be reduced
Aggregate amount of voluntary share

A= (10,000 x 10,000)/ 70,000 = 1,428.57

F= {60,000 x 10,000) 70,000 = 8, 571.43
A 20,000 10,000 30,000

B 20,000 10,000 30,000

Cc 20,000 10,000 30,000

G 30,000 30,000 A 30,000 -1,428.57 | 28,571.43

F Institution is annulled B 12,000 +8,000 20,000

Total 60,000 60,000 120,000 Cc +20,000 20,000

F 60,000 8.57143 51, 428.57 |

Nustration: Testator has three (3) legitimate
children, A, B, and C. in his will, he provided: ‘I
hereby give ¥4 of my estate to A; 1/10 to B; and Vz of SURVIVAL OF OMITTED HEIR
my estate to my friend F. The net value of the estate “ tis also an essential condition that the compulsory
is P120T. (a) Is there preterition? (b) How should the “= heir who is omitted in the testator's will should
cl)

estate be distributed? 2% survive the testator (JURADO, Succession, supra at

180)... ib
Answer:
1. There is no preterition because there is still a If the Omitted. Compulsory Heir Dies Before the
‘portion of the estate from which the share of C Testator ;
may be taken from. Concurring views
2. The estate shall be distributed as follows: According to the second paragraph of Art. 854, the
“institution shall be effectual, but without prejudice to
Under Art. 855: “the share of a child-or descendant = the right of presentation when it properly takes
omitted in a will must first be taken from the part of place. Henceiiiwhen there is a surviving
the estate not disposed of by the will; if any; if that is representative of the deceased compulsory heir who
not sufficient, so much as may be necessary. must +. has been omitted in testator's will, such as a child,
be taken proportionally from the shares: of the other “the off ct is that such child shall succeed to the
compulsory heirs,” hence: +“ fegitime which would have gone to the heir omitted
(JURADQ, Succession, supra at 180).
Step 1: Determination of the amount to be
reduced. If a compulsory heir who has been preterited dies
before the testator, itis the same as if there had been
no preterition. However, the right to representation
should not be lost sight of. If the preterited heir has
A 20,000 10,000 30,000 legitimate children and descendants entitled to
represent him, and they have been also left out of
B 20,000 - 20,000 the will, the institution shall be annulled just the
same, even if the preterited heir dies before the
Cc 20,000 - 20,000 testator (3 TOLENTINO, supra at 190).
F 60,000 60,000
EFFECTS OF PREDECEASE OR
Total per | 60,000 70,000 130,000 INCAPACITY
type of 1. Voluntary Heir: Transmits no right to his heirs. A
share 2. Compulsory Heir: Transmits to his
representatives his right to the legitime but not
to the free portion (CIVIL CODE, Art. 856).
ow
130,000 - 120,000 = 10,000 (Amount to be reduced)
ATT
Q
CQ :

72)
 SUCCESSION
Civil Law

EFFECT OF REPUDIATION GENERAL LIMITATION

Whether voluntary “or compulsory, the heir who If the heir for whom a substitute is appointed is a
repudiates his inheritance cannot transmit any right compulsory heir, the rule is that the substitution
to his own heirs (CIVIL CODE, Art. 856). cannot affect the legitime of such heir (JURADO,
Succession, supra at 189).
NOTE: The rule is absolute.
PURPOSES:
In case of predecease, incapacity or repudiation, the 1. To avoid intestate succession;
vacancy is filled up either by substitution, 2. To prevent the descent of the estate to those
representation, accretion, or intestate succession persons to whom the testator does. not want to
(JURADO, Succession, supra at 187). succeed him in his property; and
3. To give the testator greater freedom (0 dispose
IHustration: Z has an estate amounting to of his property (3 PARAS, supra at 229).
P500,000. X and Y are legitimate children of Z, while
Ais the child of X. Z then instituted X and Y as his If there is no statement of the case or cases to which
heirs. the substitution refers, the presumption is that it shall
1. If X predeceased Z, how will the estate be comprise all of the three (CIVIL CODE, Art. 859).
distributed?
2. If X repudiated his inheritance, how will the If the testator specifies the particular case when the
estate be distributed? substitution shall take place, it is clear that it cannot
3. Inthe same case as (1), what if A is an-adopted take place for any other cause not specified by the
child? HE testator. When however, he does not specify any of
these causes, but orders the substitution in general
Answer: terms, alt of the three causes are deemed included,
1. A would only be entited to the, ameunt of i.e., any of the three instances may be a cause for
P125,000 (or the amount of the legitime of X substitution (3 TOLENTINO, supra al 205).
from Z) by right of representation.’ on‘the other
hand shall receive the amount of P375,000 Nlustration: X said in his will “I hereby institute A as
(P125,000 (Y's legitime) and P250,000 (from the heir and [Link] substitute in case A predeceased me.
free portion) (in accordance with Articles 856 A did not die, but was incapacitated, can B inherit?
and 972 of the CIVIL CODE). :
2. Y would inherit the whole P500,000 from Z. X Answer: No, since it was expressly stated that the
having repudiated his share may not be substitution shall take place only in case A
represented (CIVIL CODE, Art.977). predeceased X.
3. A would not inherit from Z even by fight of
representation. The relationship (by legal fiction) EFFECT OF SUBSTITUTION
between A and X does not extend to Z: Thus,Y
GENERAL RULE: The substitute shall not only take
would inherit P500, 000 from Zt.
over, the share that would have passed to the
instituted heir, but he shail be subject ta the same
charges and conditions imposed upon such
instituted heir (CIVIL CODE, Art. 862).
SUBSTITUTION OF
HEIRS REASON: We presume that the testator intended
the substitute to stand on the same footing as the.
(ARTS. 857-870) original heir (3 PARAS, supra at 238).

EXCEPTIONS: (EP)
1. When the testator has Expressly provided the
SUBSTITUTION contrary; and
it is the appointment of another heir so that he may 2. When the charges or conditions are Personally
enter into the inheritance in default of or subsequent Applicable ony 1a he heir instituted (JURADO,
to the heir originally instituted (CIVIL CODE, Art. Succession, supra at 193).
857).
SOME INSTANCES WHEN THE
There may also be substitution of legatees and SUBSTITUTION IS RENDERED
devisees (3 PARAS, supra at 228). INEFFECTIVE:
1. When the substitute predeceases the testator;
2. When the substitute is incapacitated,
 EES

MEMORY AID
San Beca University College of Law - RGCT Bar Operations Center

When the substitute renounces the inheritance; Answer:

When the institution of heir is annulled (e.g., Formula:
preterition); Share of heir x Amount to be shared
When the institution or the substitution is’ Aggregate amount of institution
revoked by the testator; and
When a will is void or disallowed or revoked (3 A = of 600T = 3007
PARAS, supra at 233). B = % of 6007 = 150T
C= % of 600T = 150T
KINDS OF SUBSTITUTION: i
1. Simple or Common or Vulgar (CIVIL A= 300T
x 150T = 100T
450T
CODE, Art, 859, par. 1)
That which takes place when the testator
C= 1507 x 150T =50T
designates one or more persons to substitute
4507
the heir/s instituted in case such heir/s should
die before him, or should not wish to accept the
inheritance, or should be incapacitated to accept
the inheritance.

Brief or Compendious (CIVIL CODE, Art. 3007 1007 4007

860)
150T 507 2007
Some commentators make a distinction
between brief and compendious, viz: Total 4507 150T 600T
a. Brief — there are 2 or more persons
designated by the testator to substitute for
only one heir. )A Fideicommissary or Indirect
b. Compendious — one heir is designated to Substitution
take the place of two or more heirs. Sustitucion fideicomisoria; That which takes
placé “when the fiduciary or first heir
The majority of commentators, however, make instituted is entrusted with the obligation to
no such distinction, and certainly the law uses [Link] transmit to a second heir the
the terms interchangeably. whole or part of the inheritance provided
such substitution does not go beyond one
If one of the two is preterited, renounced or "degree fromthe heir originally instituted, and
incapacitated, the inheritance accrues to the provided further, that the fiduciary or first
original heir and not to the substitute UNLESS heir and the second heir are living at the
the testator provides otherwise. Stibstitution will time of the death of the testator (CIVIL
take place only if all the original ‘heirs are CODE, Arts. 863-865).
disqualified (BALANE, Succession, supra at
294). Fideicomissary inherits from the Testator
1
Example: X makes the following provision in his
will: “I institute A and B to 1/3 of my estate and
nominate C as their substitute.” If A FIDEICOR
predeceases B, the 1/3 portion, upon X's death -ISSARY
goes io B; there is no substitution by C. one
Substitution occurs only if both A and B are degree
apart
disqualified.

Reciprocal (CIVIL CODE, Art. 861) Distinction from simple substitution

Sustitucion reciproca;, When 2 or more In simple substitution only one inherits; in
persons are not only instituted as heirs, but are fideicommissary, both heirs inherit the property
also designated mutually as substitute for each or right to it simultaneously, although the
other. enjoyment and possession are successive (3
PARAS, supra at 239).
Hiustration: X institutedA to %2 of his estate, B a 5
to v4 of his estate and C to the remaining 4. X Requisites of Fideicommissary Substitution:
designated all of thein as reciprocal substitutes (ESO) i)
of each other. B predeceased X. The vatued of a. There must be a first heir (fiduciary)
- wl
the estate is GOOT. Distribute. primarily called to the Enjoyment of the
Q
estate. Q
al
 SUCCESSION
Civil Law

He is recognized as an instituted heir, and heir (CIVIL CODE, Ar. 867, par. 1). If the
not a mere administrator of the property. obligation is- conditional, there is no
fideicommissa y substitution (3 PARAS,
The first heir is indeed almost like a supra at 242).
usufructuary, with the right to enjoy the
property. Thus, like a usufructuary, he If a mere sug: ,estion, advice, or request is
cannot alienate the property. But untike a made instead of an obligation, there is no
usufructuary, he is not required to furnish a fideicommissary substitution. In such case,
bond. Also, unlike a usufructuary, he is there will be a simple institution of the first
entitled to a refund of useful improvements heir, and the second heir gets nothing (3
(3 PARAS, supra at 242) PARAS, supra at 242).

Pending the transmission or delivery, he Without the obligation clearly imposing upon
(fiduciary) possesses the beneficial the first heir the preservation of the property
ownership of the property, although the and its transmission to the second heir,
naked ownership is vested in the there is no fideicommissary substitution
fideicommissary (JURADO, Succession, (Rabadilla v. CA, G.R. No. 113725, June 29,
supra at 201). 2000).

Unless the testator provides otherwise, the, The 15 and 2 heir must be only one degree
following are the deductions allowed: “es, Apart (CIVIL CODE, Ant. 863)
i. Legitimate expenses; ‘ =
ii. Legitimate credits; and By providing that the substitution shall not
iii. Legitimate improvements (oe LEON, go beyond one degree “from the heir
Succession, supra at. 270 p "originally instituted”, the present Code has
;obvicusiy followed the interpretation of the
There must be - ‘Second heir word: ‘degree’, as generation. The Code thus
(fideicommissary) to whom the property is clearly: indicates that the second heir must
transmitted by the first heir: be related to and be one generation from the
first heir (Ramirez v. Vda. De Ramirez, G.R.
He is a sort of naked owner. Upon No. L- 24952; February, 15, 1882).
transmission to him “of (the property, full
ownership is consolidated i in hin (3 PARAS, d Both the fiduciary and fideicommissary must
supra at 244). E < $a he living (or af least conceived) at the time
of the" death of the testator (CIVIL CODE,
The second heir inherits not from the first Art. 863).
heir but from the testator {Perez v.
Garchitorena, G.R. No. 1.31703, February.’ *.- Limitations of Fideicommissary Substitution:
13, 1930). As such, he shall acquirea, fight... .. (LOBE)
to the succession from the “time of the A. - Fiduciary and fideicommissary must be Living at
testator's death, even though he*(setond the tite of the death of the testator:
heir) should die before the fiduciary. Hig~ Ta. Living — this requisite is defined in Art. 40-41
right shall pass to his heirs (CIVIL CODE, of the Civil Code
Art. 866). b. Qualified — this requisite is governed by Art.
1024-1034 of the Civil Code
Said second heir must be capacitated to
succeed not the first heir but the testator (3 Substitution must NOT go beyond One degree
PARAS, supra at 244). from the heir originally instituted;

An Obligation clearly and. expressly 2 Views as to the meaning of “one degree”

imposed by the testator (fideicomitente) a. Traditional view (degree of relationship)
upon such first heir to preserve the estate - When the law says that the substitution
and to transmit it to the second heir. must not go beyond one degree from the
heir originally instituted, what is meant is
The obligation to preserve and transmit that the fideicommissary substitute must not
must be given clearly and expressly, either be beyond one degree of relationship from
by giving the substitution this name of the fiduciary heir. Consequently, only the
“fideicommissary substitution,” or by child or parent of the latter can be appointed
imposing upon the first heir the absolute as fideicommissary heir.
objigation to deliver the property to a second
MEMORY AID
San Bada University College of Law - RACT Bar Operations Genter

view (designation or Who has a right over the house and lot?
bh. Modern
What if H and | claim their legitime alleging that
transmission/ lamamiento) — When the
2
must not go the house and lot belongs to their father's
law says that the substitution
estate?
beyond one degree from the heir originally
instituted, what is meant is that the
not extend beyond one Answer:
substitution must
degree of designation from the heir originally 1. J and K. Upon the death of the testator AG
instituted. Consequently, any person, acquired a right to succession even though he
predeceased F, the fiduciary. The right of the
whether natural or juridical, or any entity not pass to his heirs (CIVIL
second heirs shall
disqualified by law to inherit from the testator
can be appointed as fideicomissary heir
CODE, Art. 866). J and K being the heirs of G
are entilled to the house and lot.
(JURADQ, Succession, supra at 197-198).
2 Hand | cannot claim their right to legitime over
the house and lot because they do not form part
By providing that the substitution shall not
of the estate of F (their father), the latter being a
go beyond one degree “from the heir
has fiduciary who merely has usufructuary rights
originally instituted”, the present Code property. it is G
over the subject
obviously followed the interpretation of the
word “degree” as generation. The Code thus (fideicommissary) who holds naked ownership
of the house and lot.
clearly indicates that the second heir must
be related to and be one generation from the
first heir (Ramirez v. Vda. De Ramirez, G.R. Hustration: T instituted his friend A as fiduciary and
No. L-27952, February, 15, 1982). B as fideicommissary. A has 2 sons, Band C. B also
One degree means one generation (3 has 2 sons, D and E. B died in 2015, while T died in
PARAS, supra at 244). ) : 2020.
‘4. Is there a valid fideicommissary substitution?
ill A inkerit from T?
A fideicommissary substitution is void if the
first heir is nat related in the 1° degree to the :
Answer: .
second heir (Ramirez v. Vda. De Ramirez,
supra). iF 1. No. Thelaw requires that both the fiduciary and
fideicommissary must be living at the time of the
3. Substitution must not Burden the legitime of testatér's ideath (CIVIL CODE, Art. 863). Here,
fideicommissary, predeceased the
compulsory heirs; and

The legitime is expressly reserved for the

compulsory heirs (CIVIL CODE, Art. 886).
fideicommissary clause shall simply be
4. Substitution must be made Expressly (JURADO, Art.
Succession, supra at 197): Asidéred as not written (CIVIL CODE,
a. By giving it the name of a fideic mmissary
substitution; or RAT
b. By imposing upon the fiduciary the absolute A
{Testatar)
obligation to preserve and to ‘deliver the
property to the fideicommissary.
F

{Fiduciary}

Time When Inheritance Shall be Transmitted to

the Fideicomissary
1. Time chosen hy testator; or
2. If testator does not fix a period, discretion of Hand | G
{F's Heirs) {Fideicommissary}
fiduciary; or
3. In case of doubt, after the death of fiduciary (id.
at 202).
Jand K
Mustration: A, who died in 2006, devised a house {G's Heirs)
Zz
and lot to his friend, F, as fiduciary heir and to G, the
aldost son of F, as fideicommissary substitute or
‘o
second heir (F has 3 sons — G, Hand 1). In 2013, G
When the substitution
has only
is
a
conditional,
mere hope
the
or
?
died; he was survived by his two legitimate children,
fideicomm issary B72)
expectancy pending the fulfillment of the condition, Ww
J and K. In 2018, F died intestate survived by his twa
but once the condition is fulfilled, the obligation to Q
remaining sons, H and |, and his two grandchildren
3)
Jand K.
>
v0
 SUCCESSION
Civil Law
transmit or deliver the property arises (M/RADO, be limited tu twenty years but it shall have
Succession, supra at 202). to be
complemented by another mandate of
the
Fideicomiso testator — the obligation of the first heir to
- preserve the property for the benefit
There is really one heir. Between the testator of the
and the second heir. Consequently,
heir was a middle man or agent whose functi there can be no
on was conflict between the provision of this article
in many cases, to intervene only in order that and
an that of No. 2 of Art. 867 (JURADO,
incapacitated person (the heir) could succeed Succession,
from Supra at 208).
the testator (3 PARAS, supra at 249).

VOID SUBSTITUTIONS: (EPIC) 3. Those which leave to a person the whole

or part
of the hereditary property in order that he may
1. Fideicommissary substitutions which are not apply or Invest the same according to
made in an Express manner. secret
instructions communicated to him by the
testator
(also called “tacit fideicommissum®); and
2. Provisions which contain a Perpetual prohibition
to alienate, and even a temporary one beyond 4. Those which impose upon the heir
the Charge
the limit fixed in Art. 863. of paying to various persons successively,
beyond the limit fixed in Art. 863,
The prohibition to alienate is good only for 20 a certain
income or pension (CIVIL CODE, Ant.
867).
years, beyond that is void (CIVIL CODE, An.
870). “Mustration: X instituted F to the free portion
of
his estate. X also provided that the land shall be
REASONS: - wt inalienable. for a period of 20 years after his
a. To give more impetus to the socialization of death. X died in 2008. 10 years after F died
the ownership of property; and - leaving-the property to his son, A. After
2 years,
b. To prevent the perpetuation of large A died, leaving the property to his son B. May
holdings, which give rise to agrarian troubles B
alienate the-property?
(JURADO, Succession, Supra at 208).
Answer: B may alienate the property. While itis
NOTE: If the period fixed is the lifetirne of the true that only 12 years have passed since the
heir, e.g., "as long as helives;” there would really death of X:([Link] to alienate is 20
be 2 period limitations; whichever cories first: years), B can now alienate the property because
(1) 20 years, if the heir lives for more than that he no. longer falls within the ‘one-degree
period, or (2) the period before the expifation of limitation” gArt. 867, par.2in relation to Art. 863).
20 years, if he dies earlier. (DE LEON; Bis already two degrees away from the heir
Succession, supra at 285). (F)
i originally instittited and is thus not covered by
the same charges and conditions of the
Hlustration: A was given his iégitime in fhe form fideicommissary substitution.
of a house. In the will, A was prohibitedte sell
the house within a period of 20 years.-Can A sell NOTE: “The nullity of the fideicommissary
the house even before the expiration of sajd “substitution does not prejudice the validity
of the
period? institution of the heirs first designated; the
fideicommissary clause shall simply be
Answer: Yes. This prohibition, even if Yess than considered as not written (CIVIL CODE, Art.
20 years, cannot be applied to the legitime 868).
(CIVIL CODE, Art. 904 par. 2: 3 PARAS, supra
at 260). DISPOSITION OF USUFRUCT TO
NOTE: Article 870 does not apply if there is a VARIOUS PERSONS
fideicommissary substitution, for this must A provision whereby the testator leaves
be to a person
governed by Art. 867(2) (/d.). the whole or part of the inheritance, and
to another
Article 870 is limited to the free portion, the: usufruct, shall be valid. If he gives the usufru
for the ct to
legitime, as a general rule, cannot be burdened various persons, not simultaneously, but
by the successively, the provisions of Art. 863 shall
testator with any charge, condition or apply
substitution (CIVIL CODE, Art. 869). :
(DE LEON, Succession, supra at
284).
llustration: X said in his will: “ give my proper
ty in
Ifit so happens that in addition to the prohibition Manila to my friend A, but F will have the usufru
ct for
to alienate there is a fideicomissary substitution 10 years; F's son B for two (2) years; and B's
son C
expressly made, such prohibition shall not only for two (2) years. Is this valid?
 MEMORY AID
San Beda University Collage of Law - RGCT Bar Operations Center

Answer: The usufruct is valid only from F to B. When

it comes to C, the usufruct is no longer valid because
C is already two degrees away from F. Therefore,
CONDITIONAL, MODAL
after B's death, the ownership of the property will TESTAMENTARY
now be consolidated to A. C will no longer enjoy the
usufruct.
DISPOSITIONS AND
TESTAMENTARY
RIGHTS OF FIDUCIARY: (APD)
1 To Acquire the rights of a usuffuctuary until
DISPOSITIONS WITH A
delivery to the fideicommissary; TERM
2. To Possess beneficial ownership pending the
delivery while naked ownership is vested in the
(ARTS. 871-885)
fideicommissary (JURADO, Succession, supra
at 201); and
3. To Deduct the amount of legitimate expenses
credits, and improvements, save in the case
FREEDOM OF DISPOSITION
where the testator has provided otherwise Art. 871 is a restatement of the testator's freedom of
(CIVIL. CODE, Ar. 865, par. 2). disposition.

"Legitimate expenses” as used in the second NOTE: Although the article speaks only of institution
paragraph of Art. 865, refer to those which were of heirs, there is no reason why the provision cannot
made for the acquisition and preservation of the be applied to any kind of testamentary disposition.
property or inheritance
:~~ The institution of an heir may be:
“Improvements,” on the other hand, refer to “1. Pure or simple;
necessary as well as to useful expenses:: nds wConditional;
“37 Forage; or
+ Other expenses, such as those for btire luxury 4. For a certain purpose or cause (modal)
or mere pleasure, are excluded.
NOTE: Conditions, terms, and modes are not
NOTE: The amount of the deductions ‘10: which presumed; they must be clearly expressed in the will.
the fiduciary is entitled, however, js. not the Otherwise, they shall be considered pure (3 PARAS,
actual amount of the expenses, butthe ificrease ih supra, at. 265):
in value of the property or inheritance.
Consequently, the property is really preserved pg.
(JURADO, Succession, supra at'202). a Principle
Legitime
of Untouchability of the
NOTE: More can be deducted if so provided by the “GENERAL RULE: The testator cannot impose
testator (/d.). Deterioration causedby the fiduciary's any charge, burden, encumbrance, condition, or
malice or negligence must of course be shouldered substitution whatsoever upon the legitime of the
by him. compulsory heirs. Should he do so, the same
shall be considered as not imposed (CIVIL
If the property is destroyed by a fortuitous event, the CODE, Art. 872).
obligation is generally extinguished (3 PARAS,
supra at 253). EXCEPTION:
The testator can validly impose a prohibition
Obligations of Fiduciary: (PDI) against the partition of the legitime for a period
1. To Preserve the inheritance; not exceeding twenty (20) years (CIVIL CODE,
2. To Deliver the inheritance; Art. 1083, par. 1).
3. To make an Inventory of the inheritance (DE
LEON, Succession, supra at 278-279). There is only one instance under our law where
the testator is allowed to impose a charge upon
the legitime of compulsory heirs and that is when
the testator declares that the hereditary estate
SUCCESSION

shall not be partitioned for a period which shall

not exceed twenty years. According to Art. 1083
of the Code, this power of the testator to prohibit
the division of the estate applies even to the
legitime of compulsory heirs. - (JURADO,
Succession supra at 210). :
 SUCCESSION
Civil Law

2. Impossible Conditions Relative Prohibition

Impossible conditions and those contrary to law Relative prohibitions on the following are
or good customs are considered as not imposed considered valid unless it becomes so
(CIVIL CODE, Art. 873). lt is presumed that the onerous or burdensome, or the prohibition
condition is due to a mistake or oversight, or really amounts to an absolute one:
merely a whim or caprice of the testator. Such i. To contract first marriage; or
impossibility is to be determined at the time ii. Toremarry.
when the condition is to be fulfilled (JURADO,
Succession, supra at 211). If the prohibition is relative with respect to
persons, time or place, the rule does NOT
Here, the condition is considered void and apply; hence, the prohibition is valid. The
unwritten but the institution and testamentary following relative conditions regarding
disposition will be considered as valid (3 marriage have been considered as valid and
PARAS, supra at 266). binding:
i. (Generic condition to contract marriage;
A condition is considered impossible if it is not ii. Specific condition to contract marriage
possible of realization because it is contrary to with a determinate person; and
either physical, juridical or moral laws iii. Specific condition not to contract
(JURADO, Succession, supra at 211). marriage with a determinate person.

Article 1183 provides for the annulment-¢f fhe _Nature of condition when validly
obligation which depends upon.~impaossible ° : imposed
conditions. Article 873 only makes the condition The "absolute condition not to contract
void, but the disposition remalrisvalid. de B ., marriage. when validly imposed is
resol utory in character.
A condition prohibiting the” contest of thie will Is
void (3 TOLENTINO, supra at’ 229). ‘Relative Conditions Regarding Marriage
I must be noted that the general rule stated
Prohibitions on Marriage i “in Art. 874 is applicable only when the
Rules on Prohibitions'on Marriage: prohibition to contract a first or subsequent
a. Absolute Prohibition. = : marriage is-absolute in character.
i. To contract first I —— = void
(contrary to good .mdrals’ and* public Consequently, if the prohibition is relative
policy) (CIVIL CODE, Art 874). “with respect tg persons, time or place, the
£n rule does not apply; in other words, the
NOTE: There is ho exception here 3 Ce prohibition ‘or condition is valid (/d. at
PARAS, supra al 268). 219-221).
it. To remarry A ‘stopping of a usufruct, allowance, or
GENERAL RULE: *.; Abéolute * «personal prestation the moment the heir,
prohibitions to marry as a [Link] be “fegatee, or devisee marries or remarries is
instituted as an heir are void (CIVIL justified since the law allows their giving for
CODE, Art. 874, par. 1). the time during which the person remains
unmarried or in widowhood (CIVIL CODE,
EXCEPTIONS: - Art. 874).
(1) When imposed on the widow or
widower by the deceased person; or Disposicion Captatoria
(2) When imposed on the widow or Any disposition made upon the condition
widower by the ascendants or that the heir shall make some provisions in
descendants of the deceased spouse his will in favor of the testator or of any other
(CIVIL CODE, Art. 874, par. 1). person shall be void {CIVIL CODE, Art. 875,
par. 2).
An absolute condition not to contract
marriage when validly imposed is REASON: it impairs freedom of
resolutory in character. Even so, testamentary disposition (JURADO,
however, the legitime of the surviving Succession, supra at 221).
spouse cannot be impaired (BALANE,
Succession, supra at 322). REASONS FOR THE PROHIBITION:
i. The captatoria converts testamentary
grants into contractual transactions;
 AYA

MEMORY AID
San Bada University College of Law - RGCT Bar Operations Center

ii. it deprives the heir testamentary GENERAL RULE: It may be fulfilled at any
freedom, time (before or after the testator's death),
ii. ltgives the testator
the powerto dispose unless testator provides otherwise.
mortis causa not only of his property, but
also. that of his heirs (BALANE, Qualifications:
Succession, supra at 322). If already fulfilled at the time of execution of
will:
NOTE: In Art. 875 (disposicion captatoria), i. If testator is unaware of the fact of
the testamentary disposition itself is void, fulfillment it is deemed fulfilled
while in Arts. 873 and 874 the condition is ii. If testator is aware thereof-
void but the testamentary dispasition is valid 1.) it can no longer be fultilled again —
because testamentary succession is an act deemed fulfilled
* of liberality and not a contractual agreement 2.) if it can be fulfilled again — must be
(JURADO, Succession, supra at 221). fulfilled against

e. Conditions imposed by the testator upon the c. Mixed - fulfilment depends jointly upon the
heirs shall be governed by the rules will of the heir, devisee, or legatee and upon
established for conditional obligations in all chance and/or will of a third parson.
matters not provided for by the law on
succession (CIVIL. CODE, Art. 884). 2. As to the effects:
a. Suspensive or Ex Die - a condition upon
CONDITION the fulfiliment of which successional rights
Any future and uncertain fact or past event unknown are acquired.
to the parties, upon which the performance of ‘an
The heir should be living and qualified to
obligation depends (CIVIL CODE, Art. 1179). :
. sucgeed both at the time of testator's death
““iandiat the time of the happening of the event
KINDS OF CONDITION: (CIVIL CODE, Art. 1034 par. 3) :
1. As to the cause upon which the
fulfillment depends: Pending: its fuifiiment, the estate shall be
a. Potestative ~ fulfilment déponds placed under administration until the
exclusively upon the will ef the heir, devisee, gondition is fulfiled, or it becomes certain
or legatee, and must bg} ¢ performed. by him -gihatil cannot: sbe fulfilled (CIVIL CODE, Art.
personally. It may either be:
i. Positive — when it consists’ of the doing
or giving of something. Resolutory or /n Diem - a condition upon
i. Negative ~ when it consists of not doing the fulfilment of which rights already
or giving anything. ; +atguired are extinguished.
If the suspensive condition is not fulfilled or
GENERAL RULE: It must be fulfilled as if the resolutory condition is fulfilled, as the
soon as the heir leans of the téstator's case may be, the estate shall pass to the
death. legal heirs (JURADO, Succession, supra at
227).
EXCEPTIONS:
i. If the condition was already complied TERM
with at the time the heir learns of the
Itis the day or time when a testamentary disposition
testator’s death; and
either becomes demandable or terminates {CIVIL
ii. Constructive compliance — the condition
CODE, Art. 1193).
is deemed fulfilled (CIVIL CODE, Art.
883 par. 2)
KINDS OF TERM:
Heir must give security to guarantee 1. Suspensive
(caucion muciana) the return of the value of Rights are suspended until the arrival of the date
or time designated by the testator.
‘Zz
property, fruits, and interest, in case of
contravention (BALANE, Succession, supra
The legal heir shall be considered as called to
9
at 324). <n[V2
the succession until the arrival of the period. But 2%

b. Casual - fulfillment depends exclusively he shall not enter into possession of property
upon chance and/or upon the will of a third until after having given sufficient security, with Q
person. the. intervention of the instituted heir. In the OQ
on.
 SUCCESSION
Civil Law

absence of a bond, said property shall be under Other instances where caucion muciana is
administration (CIVIL CODE, Art. 885, par. 2). required:
a. Art. 885 par. 2, Civil Code; and
NOTE: The words “or term” in line 2, and “or until b. Art. 882, Civil Code
the arrival of the term” in lines 4 and 5 at the end
of 1% par. of Art. 880 must be eliminated as it NOTE: This must not be confused with caucion
conflicts with Art. 885. In the protoype, Art. 805 Jjuratoria, a bond required in usufruct.
(Now Art. 880) was limited to suspensive
conditions only since periods were governed by If the Condition is Casual or Mixed

nN
Art. 885. However, some unknown person It shall be sufficient if it happens or be fulfilled at
inserted "or term” in Art. 880 which created a any time before or after the death of the testator,
contradiction (JURADO, Succession, supra at UNLESS he has provided otherwise (CiviL.
231). CODE, Art. 877, par. 1).
If the heir, devisee or legatee should have died Two Secondary Rules
after the death of the testator, but before the a. If the condition had already been fulfilled at
expiration of the term, his right shall be the time of the execution of the will and the
transmitted to his own heirs (CIVIL CODE, Art. testator was unaware thereof, it shall be
878). : deemed to have been complied with.
IT b. If the condition has already been fulfilled at
2. Resolutory Term Pp : the time of the execution of the will and the
Rights are immediately demandable but subject + testator had knowledge thereof, the
to extinguishment upon the arrivalof the date or... © condition shall, as a rule, still have to be
time designated by the testator (evi. CODE, Te complied: with, uniess it is of such a nature
Art. 1193). ) ) ’ that it can’ .no longer exist or be complied
a Ea i -with again (JURADO, Succession, supra at
TIME OF FULFILLMENT we 223-224),
1. If the Condition is Purely Potestative
a. Positive Potestative Condition :
The heir must fulfilf it as soon as he learns
of the testator's death; unless the gondition
is already complied with: and cannct be
fulfilled again (CIVIL CODE, Art. 876):
An. uncertain event | Sure to happen or to
i i which” may. or may=not | arrive, even if the exact
b. Negative Potestative Condition ra happen. ; date .of such happening
The right of the heir, devisee or legatee does: if . or arrival may be
not have to be held in suspense. Te oT ’ uncertain.
He acquires his right as a matter of course
without any limitation other than“that of not
doing or not giving something (CIVIL CODE,
Art. 879). “The acquisition of the | The right is already
: right depends upon the | transmitted to the heir
Caucion Muciana happening of the | upon the death of the
The bond or security referred to in Art. 879 is condition, such that if | testator; the term
called a caucion muciana (6 Manresa, 6 ed., p. the condition does not | merely serves to
201). The bond or security should be given in happen, the heir does | determine 3 the
favor of those who would get the property IF the not succeed. demandability of such
condition be not complied with (like the intestate right already acquired.
heirs of the substitute, etc.).. The favored (3 TOLENTINO, supra at 236).
persons are naturally the ones who can demand
foe consiitution of the security (6 Sanchez MODAL INSTITUTION (INSTITUCION
oma, p- 61 ). SUB MODO)
it may be demanded in favor of those to whom Attachment by the testator to an institution of heir, or
the property would pass if not complied (3 to a devise or legacy, of a slalement of the:
TOLENTINO, supra at 239). 1. Object of the institution;
1. Application of the property left by testator; or
2. Charge imposedby him (JURADO, Succession,
supra at 228).
 MEMORY AID
San Beda University College of Law - RGCT Bar Operations Center

That which has been left in this manner may be the free portion and the legitime. The distribution
claimed at once provided that the instituted heir or may be by law, or by the testator’s will or by both {3
his heirs give security for compliance with the wishes PARAS, supra at 296-297).
of the testator and for the return of anything he or
they may receive, together with its fruits and PURPOSE OF LEGITIME
interests, if he or they should. disregard this To protect the compulsory heirs for whom the
obligation (CIVIL CODE, Art. 882, par. 2). testator is presumed to have a parental, filial or
conjugal obligation to reserve portions of his estate
illustration: X makes a legacy of P1,000,000 to Y for the benefit of such heirs from his anger or neglect
who was instructed to build a house and to deliver (JURADO, Succession, supra at 233).
the same to Z. Is there a modal institution?
The cause of action to enforce a legitime accrues
Answer: Yes, there is a modal institution. There is a upon the death of the donor-decedent since it is only
direction to build a house. The answer would be then that the net estate may be ascertained and on
different however if Y was instructed to use the which basis, the legitime may be determined
money to buy a particular thing as the statement {Imperial v. CA, G.R. No. 112483, October 8, 1393).
turns into a condition. .
PRINCIPAL SYSTEMS OF
NOTE: In case of doubt, the institution should be OF HEREDITARY
DISTRIBUTION
considered modal and not conditional; and where
there is doubt whether a statement is a mode or itis
PROPERTY
a mere suggestion, observation, or expression of 1. System of Absolute Freedom of
certain desires by the testator, it should be Disposition
understood in. the latter sense (DE LEON, The testator may freely dispose of his property
Succession, supra at 308). without any limitation imposed by law;
A mode obligates but does not suspend, while a +2: Systemof Total Revocation
condition suspends but does not obligate (JURADO, r cannot freely dispose of any portion
supra at 228). ’ of his estate as long as there are compulsory
heirs for whom the law reserves his estate. He
DOCTRINE OF CONSTRUCTIVE has free disposition only when he has no
FULFILLMENT compulsory heirs; and
When without the fault of the heir,-an institucion Sub
modo cannot take effect in the exact manner stated 3. System of Patial Reservation
by the testator; it shall be complied with in.a manner This is theisystem of legitime. A certain portion
of the estate is reserved by law for compulsory
most analogous to and in conformity with-his wishes
(CIVIL CODE, Ari. 883, par. 1). .heirs and the rest is the free portion over which
[Link] has absolute freedom of disposition
If the condition is casual, the doctiine is mot (DE LEON, Succession, supra at 317).
applicable since the fulfillment of the event which
constitutes the condition is independent of the-will of KINDS OF LEGITIME:
the heir, deviseeflegatee. If the condition is 1. Fixed
potestative or mixed, the doctrine is applicable The aliquot part of the testator’s estate to which
(JURADO, Succession, supra at 229). a certain class of compulsory heirs is entitled by
operation of law is always the same whether
they survive alone or with other classes of
compulsory heirs.
LEGITIME
2. Variable
(ARTS. 886-914) The aliquot part changes depending upon
* whether they survive alone or with other classes
of compulsory heirs (JURADO,
supra at 234).
Succession,
-
LEGITIME
That part of the testator’s property which he cannot
dispose of because the law has reserved it for COMPULSORY HEIRS (CH) [o
78
“Those heirs for whom the law has reserved that part
certain heirs who are, therefore, called compulsory
heirs (CIVIL CODE, Art. 886). of the testator's estate known as legitime. As such,
oy 11
testator cannot deprive them of their legitime except
Q
The Civil Code adheres to the System of Partial by disinheritance properly effected (JURADO,
0
the inheritance is divided into Succession, supra at 234-235).
2
i
Reservation wherein.

@..
 SUCCESSION
Civil Law
The birth of a compulsory heir gives a vested right to
the heir lo acquire the inheritance which is inherent
COMPULSORY HEIRS
from his legitimate filiation (Rocha v. Tuason, G.R, 1. if Testator is a Legitimate Person
No. 14254, August 5, 1919). a. Legitimate Children and Descendants
(LCD);
NOTE: The fact of being a compulsory heir imposes b. In default of the foregoing, Legitimate
no obligation to accept or receive the legitime. The Parents and Ascendants (LPA);
law on legitime is a restriction, not on the freedom of ¢. Surviving Spouse (SS);
the heir to accept or repudiate the inheritance, but d. lllegitimate Children and Descendants (ICD)
on the freedom of the testator to dispose of his
property (3 TOLENTING, supra at 252). They are NOTE: (c} and {d) are NOT excluded by (a) &
called compulsory, only because the testalor cannot (b) neither do they exclude one another
disregard them (3 PARAS, supra at 301). (JURADO, Succession, supra at 234).

KINDS OF COMPULSORY 2. if Testator is an lllegitimate Person

HEIRS:
a. Legitimate Children and Descendants
1. Primary
Those who are always entitled to their legitime (LCD);
b. legitimate Children and Descendants
regardless of the class of compulsory hairs with
which they may concur (e.g., LCD).
(ICD);
c. in default of the foregoing, Illegitimate
Parents (IP) only;
2. Secondary Ca d. “Surviving Spouse (SS) (CIVIL CODE, Art,
Those who may be excluded by other CH-and F887),
succeed only in the absence ofthe primary GH
(e.g., LPA or IP). SUMMARY OF GENERAL RULES
3. Concurring CLs .
Those who succeed together with the primary oF 1. Direct descending line
a. Ruyleof preference between lines
secondary CH (e.g., /ICD-and SS). ‘
b. Rule of proximity
¢. Right of representation ad infinitum in case
NOTE: For illegitimate children to be compulsory
heirs, they must be recognized (3 PARAS, supra at
of predgcease, incapacity, or disinheritance
301). Mere proof of filiation is not engugh,: what
(if testator is. a legitimate person: LCD only
is can- represent; If testator is an illegitimate
important is recognition of that filiation ‘(Noble v.-
Noble, G.R. No. 17742, Decembel 17, 1966)." + person: bath LED and 1CD can represent)
d. If all the LCD/repudiate their legitime, the
next generation of LCD succeeds in their
C7 ownright, f
2. Direct-ascending line
a. "Rule of division by lines
+b. “Rule bfequal division
3: Non=imgairment of legitime
 Sos Reve

MEMORY AID
San Bada University College of Law - RGCT Bar Operations Canter

TABLE OF LEGITIMES

Legends:
LCD = Legitimate Children and Descendants
ICD = lllegitimate Children and Descendants
SS = Surviving Spouse .
LPA = Legitimate Parents or Ascendants
IP = Hlegitimate Parents
AC = Adopted Child
FP/RFP = Free Portion/Remaining Free Portion

1. Divide by the # of LCD, whether they survive ja. 4 legitimate children —

LCD pi CODE alone or with concurring CH. 2.5 million each
( . > | 2. The remaining 1/2 shall be at the free disposal |b. FP 10 million
Art. 888). of the testator.
1. The legitime of the SS shall be taken only from |a. Legitimate daughter —
112;
1LCD: 1/4 the free portion (Civil: CODE, Art. 892). 10 million
ss ' (CIVIL CODE, | 2. In case of legal separalion, the surviving spouse |b. Wife — & million
Art. 892, par. may inherit if it was the deceased who had given |c. RFP -5 million
1). cause for the same (CIVIL CODE, Art. 892).
1. Divide 1/2 of the estate he numba’ of LCD Ja. 2legilimate daughters —
1/2, 2. If there are‘two or more LCD, the feg time of SS 5 million each
9 or more Same as that is the'same as that of each LCD and, it ghall be |b. Husband — 5 million
LCD: of each LCD takei from the free portion (CIVIL CODE, Art. jc. RFP - 5 milion
ss ' {CIVIL CODE, 892): ’ :
Art. 892, par. | 3, After deducting the ilegitime of; Ane: SS) the
2). . remaining shall be ak the free disposal of: the
© testator” ;

1. The legitime of the ICD shall be taken from the |a. Legitimate son — 10
1/2; free portion (CIVIL CODE, Art. 888). million
LCD: 1/2 0f 1 LCD 2. incase of several IC... b. 5 illegitimate children —
ICD ' (CiviL CODE, a. ltfree portion is sufficlen each IC gets 1/2 of 2 million each
Art. 895, share of 1LCD.
par.1). b. If free portion is insufficient, divide it among
the ICD equally.
1. Ifthere are 2 or more LCD, the legitime of the SS la. 1 legitimate daughter —
is the same as that of each LCD and it shall be 10 million
taken from the free portion (CIVIL CODE, Art. |b. Spouse — 5 million
892). c. 4 illegitimate children ~
1/2; 2. The legitime of the ICD shall be taken from the 1.25 million each
LCD: 1/4; free portion provided that the total legitime of
ss ’ 1/2 of 1 such ICD shall not exceed the free portion and
cn LC(CIVIL that the legitime of the SS must first be fully
CODE, An. satisfied (CIVIL CODE, Art. 895, par. 3).
895, Par. 1). 3. In case of several ICD:
a. If free portion is sufficient, each 1C gets 1/2 of
1LC. Zz

Bo
b. If free portion is insufficient, divide it among
the ICD equally.
they survive alone or If there is no LCD, R7,)
12 1. ns rule applies eer
with other classes of CH. a. Legitimate father — 10 LL}
LPA see 2 They inherit in default of LCD of testator, | million oO
’ ’ otherwise they are excluded. Q
=
8
 SUCCESSION
Civil Law

If there is LCD,
a. Legitimate father — none
b. Legitimate son — 10
million
1. The 1/4 to which ICD ie entitied is taken from the: |a Leyilimale mother — 10
1/2, free portion (CIVIL CODE, Art. 896). million
LPA; Ta 2. The 1/4 shall be divided wr equal shares among |b. 8 Hiegitimate children —
ICD (CIVIL. CODE, several ICD. 625,000 each
Art. 896). 3. The remaining 1/4 shall be at the free disposal {c. RFP — 5 million
of the testator.
112; 1. The legitime of the 8S shall be taken from the |a. Legitimate mother — 10
LPA; 1/4 free portion. million
SS (CIVIL CODE, } 2. The remaining 1/4 shall be at the free disposal |b. Spouse — 5 million
Art. 893). of the testator. c. RFP —5 milion
1. The legitime-of the SS [Link] shall be taken |a. Legitimate father — 10
1/2; from the free portion provided” that the total million
LPA; 1/8; legitime of such ICD: [Link] exceéd the free b. Spouse ~ 2.5 million
SS; 1/4 portion, and, that the legitinme of the SS must first {c. 5 illegitimate children —
ICD (CIVIL CODE, be fully satisfied {CIVIL CODE, ‘Art. 895 par, 3). 1 million each
Art. 899). 2. The remaining 1/8 may be freely disposed of by d. FP -— 2.5 million
‘the testator (CIVIL CODE, Art. 839). + ‘
12 1. If hore. are more than 1 ICD divide , equally a. 10 illegitimate children —
“among them. 1 million each
Ico (CL CODE, 2. The remaining 1/2 shall be at the free disposal 4b.
Art. 901). : FP 10 million
of the testator. . : :
1/3; The remaining 1/3-shall ‘be at the free disposal of; a. Husband — 6.67 million
SS; 1/3 the’ testator (eiviL CODE, Art. 999). b. 3 illegitimate children —
ICD (CIVIL CODE,
2.22 million each
Art. 894). ’ : en . . } sy fc. FP 6.67 million
1. One third (1/3) if:“marriage is in_afticulo mértis If marriage is in
and the festator-spolse digd-Wwithin 3 months articulo mortis and
after the. marriage:-NOTE: Applies onlyif it was testator dies within 3
the deceased who was. the party in danger of months,
death at the time of marriage; ant if the cause of [a. Spouse — 6.67 million
death is the SAME &¢ the sickness, iliness or
13 injury existing at the time of marriage - the If living together as
12 purpose of the law being to avoid a marriage husband and wife for
ss rs purely for financial gain. This rule applies only to more than 5 years
a case of testamentary succession (3 PARAS,
(CIVIL CODE, before marriage in
Art. 900). supra at 350). . .
articulo mortis,
2. One half (1/2) when they have been living as |a.. Spouse — 10 million
husband and wife for more than 5 years before |b. FP — 10 million
marriage in articulo mortis
3. if marriage is not in articulo mortis, SS shall If marriage is not in
inherit 1/2 of the estate articulo mortis,
4. The remaining one half 1/2 in (b) and (c) herein la. Spouse — 10 million
shall be at the free disposal of the testator b. FP —10 million
1/2 The remaining 1/2 shall be at the free disposal of |a. legitimate father — 10
IP (CIVIL. CODE, | the testator.
million
Art. 903). b. FP ~ 10 million
 (RY AID
AEN ECan

MEM.
San Bede University College of Law - RGCT Bar Operations Certter

Children inherit in the amounts established in the legitimate mother —

= Excluded; foregoing rules. none
’ hild It depends Legitimate son — 10
eo joy | (CIVIL CODE, million
Art. 803). legitimate daughter —- 5
million

IP; 1/4: Only the parents of IC are included. Grandparents legitimate father ~ 5
SS 1a and other ascendants are excluded. miion J
ife — 5 million
froos llegitimate grandfather
’ ’ - none ‘
LEAIP of 1/2; When parents (legitimate or illegitimate), or the Legitimate parents -10
Nihe 1/2 legitimate ascendants of the adopted concur with million or 5 million each
adopled; (FAMILY the adopters, 1/2 shall be inherited by the parents Adopters — 10 million
Adopters CODE, Art. | or ascendants and the remaining half by the
190, Par. 3). adopters.
Same share | As a rule, adopted children are entitled to the same la. Adopted daughter - 2.5
AC; as LCD successional rightas legitimate children. miltion
LCD (CIVIL CODE, La b. 3 legitimate sons — 2.5
Art. 979). million each
(JURADO, Succession, supra at 324-325).
Rule of proximity applies where the relative
NOTE: There are conflicting views ‘as to the nearest;
in ‘degree excludes the more distant
applicability of Art. 190 of the Family Code: to ones, saving, the right of representation when it
instances where both the adoplers-and [Link]/P propefly takes place (ie., grandchildren are
concur after the death of the adapted child.

One view is that the Sec. 18 of RIA. 8552 amended

the provisions of Art. 190 of the Family Code: Under
Sec. 18, the adopted and his/her parents by nature Rule in case of Adopted Child
may only succeed from each other :by way of e adopted shall be deemed io be a legitimate
testamentary succession. The Domestic Adoption dof the adopters (R.A. No. 8552, Sec. 17).

Act extinguished the reciprocal rights of sugcession A ward (ampon), without the benefit of formal
that exist between the two, including the right to the (judicial) adoption, is neither a compulsory nor a
legitime and rights arising from legal or intestate legal heir (Manuel! v. Ferrer, G.R. No. 117246,
succession (RABUYA, The Law on Persons and August 21, 1995).
Family Relations (2006), p. 616).
EXCEPTIONS:
Another view is that Art. 190 of the Family Code a. When the adoptee and his/her biological
continues to apply, and that the adopter and the parent(s) had left a wil, the law on
LPP shail divide the entire estate, that is, one-half testamentary succession shall govern
to be inherited by the parents or ascendants and the (FAMILY CODE, Art. 189 in rel. to Secs. 17
other half by the adopters (JURADO, Succession, and 18 of R.A. No. 8552 or the Domestic
supra at 241). Adoption Act of 1998).
b. When the adopter dies before his LPA, or is
1. LEGITIME OF LEGITIMATE incapacitated to inherit from said LPA, or is
DESCENDANTS disinherited by his LPA, the adopted cannot Zz
inherit by right of representation (JURADO,
Consists of 1/2 of the hereditary estate of {Heir
Succession, supra at 236).
legitimate parents or ascendants, while the other
half is at the latter's free disposal (CIVIL CODE,
Art. 888). ; Wh
Q
Q.
=
 SUCCESSION
Civil. Law

Actio Ad Supplendam Legitimam (Right of mother, but is survived by ascendants of

Completion of Legitime) equal degree of the paternal and maternal
If some heirs are genuinely interested in lines, the legitime shall be divided equally
securing that part of their late father's property between both lines (CIVIL CODE, Art.890
which has been reserved for them in their par. 2).
capacity as compulsory heirs, then they should
simply exercise their right of completion of Right to Receive Benefits from the Adoptee
legitime (Gala v. Ellice Agro-industrial Corp., in Case of Death of the Adopter
G.R. No. 156819, December 11, 2003). Adoption, without more, does not deprive the
biological parent of the right to receive the
LEGITIME OF LEGITIMATE benefils stemming from the adoptee’s death as
ASCENDANTS a dependent parent given the adopter’s untimely
Consists of 1/2 of the hereditary estate of their demise during the adoptes’s minority. Since the
- children and descendants (CIVIL CODE, Art. parent by adoption already died, then the death
888, par. 1). benefits under the Employee’s Compensation
Program shall accrue solely to the biological
They are excluded from the succession if they parent, the adoptee’s sole remaining beneficiary
(Bartolomev. 888, G.R. No. 192531, November
concur with legitimate children or descendants.
(JURADO, Succession, supra at 244). 12, 2014).

Rules of Division for Legitimate Parents and : "LEGITIME OF SURVIVING SPOUSE

Ascendants: Entitled -to a legitime the amount of which is
a. The legitime shall he divided betwen the . variable depending upon whether he or she
LPA equally. survives alone or concurrenlly with other
b. fone ofthe LPA dies before the testator: the -compulsory heirs (JURADO, Succession, supra
whole shall pass to the survivor. at 285):
c. If both LP dies before the testator but:
i. Survived by ascendants of equal . The condition of being a surviving spouse
degree, legitime shall be divided equally requires that there should have been a valid
between the paternal and matarnal line. © ‘marriage betweer: the deceased and the
ii. Survived by ascendants of. different. survivor (DE LEON; Succession, supra at 326).
degrees, legitime “shall pertain ‘entirely
to the nearest dégree (CIVIL CODE, Art: Annulment of véidable marriage
890; JURADO, Succession, Supra_at Voidable marriages are valid until they are set
245-246). “aside by final judgment of a competent court in
an actiph for annulment (Difio v. Difio, G.R. No.
Hlustration: X, the testator, has an oi i 176044,January 19, 2011).
amounting to P240,000. X was survived" by. his )
father F, mother M, paternal grandfather PGF, ) in case. -of death of a party during the
paternal grandmother PGM, matemal anhulrient proceedings, the survivor is
grandfather MGF, and maternal grandriiother . entitled to a legitime, because marriage can no
MGM. longer be annulled after the death of one of the
a. How shall his estate be divided? parties (Nifial v. Bayadog, G.R. No. 133778,
b. If F predeceased X? March 14, 2000).
c. fF, M, and PGM predeceased X?
if the party dies after the entry of judgment of
Answer; nullity’ or annuiment, the judgment shall be
a. F and M shall both be entitled to P120,000 binding upon the parties and their successors-
each. The legitime reserved for the in-interest in the settlement of the estate in the
legitimate parents shall be divided between regular courts (AM. No. 02-11-10-SC, Sec.
them equally (CIVIL. CODE, Art. 890). 24(b)y The survivor is no longer the spouse
b. M shall be entitled to P240,000 in entitled to a legitime.
accordance with the rule of proximity. M
shall exclude those farther in degree. Also Legal Separation
Art. 890 of the Civil Code provides that “if The widow or widower will be entitled to succeed
one of the parents should have died, the only when he or she is the innocent spouse
whole shall pass to the survivor.” (FAMILY CODE, Art. 63, par. 4).
c. PGF shall be entitled to P120,000 while If death occurred during the pendency of the
MGF and MGM shall be entitled to P60,000 legal separation proceedings, the effect shall
each. If the testator leaves neither father or depend on which spouse died.
MEMORY AID
San Beda University Collage of Law - RGCT Bar Opsrations Center

a. {fit was the plaintiff (innocent spouse) who A: No, because of the barrier between the
died, the proceeding shall continue to legitimate family (CIVIL CODE, Art. 992).
determine whether or not there is ground for
legal separation which shall justify the When representatives are of different classes
exclusion of the surviving spouse from (legitimate or illegitimate), they inherit naturally
inheritance (DE LEON, Succession, supra in the same proportions as in Art. Art. 895 since
at 327). this is also the rule in legal succession (3
b. If it was the defendant (guilty spouse) who PARAS, supra at 353-354).
died, the legal separation proceedings
should be terminated (FAMILY CODE, Art. Hlustration: T has an illegitimate child A, who in
63; JURADO, Succession, supra at 236). turn has a legitimate child B, and an illegitimate
child C. If A predeceases T, both B and C will
In case of reconciliation under Art. 66(1) of the inherit by representation in the proportion of 2 is
Family Code, when one of the spouses should to 1 {Jd.).
die, the legal separation proceedings which is
still pending shall be terminated at whatever 5. LEGITIME OF ILLEGITIMATE
stage (FAMILY CODE, Arts. 63 and 66). The
PARENTS
survivor gets his or her legitime, regardiess of
The iliegitimate parents are entitled to 1/2 of the
whether he or she is the guilty party.
legitimate child's hereditary estate when he is
survived by neither legitimate descendant, nor
Legacy or devise to surviving spouse
surviving spouse, nor illegitimate children.
Any devise or legacy given to the surviving
(CIVIL CODE, Art. 903).
spouse should be considered as being in.
addition to his or her legitime, and must. -
If the illegitimate child leaves a descendant,
therefore be charged to the free portion. Sugh.
» legitimate. or illegitimate, the parents have no
devise or legacy should be considered in the.
: {DE LEON, Succession, supra at 386).
same footing as those given to strangers (3
PARAS, supra at 343).
NOTE: Brothers and sisters are not compulsory

LEGITIME OF ILLEGITIMATE heirs but they:may be instituted as voluntary heirs {3

DESCENDANTS ¥ PARAS, supra at:307).

The amount of their legitime is. variable CAL (OR RESERVA

depending upon whether they inhérit alone or as
a class or concurrently with other classes ‘of -
A/ LINEAL)
‘The reservation by virtue of which an ascendant who
compulsory heirs (JURADO, Succession; supra
inherits from his descendant any property which the
at 290).
ay have acquired by gratuitous title from
‘anéthetr’ascendant or a brother or sister, is obliged
Under the Family Code, there is” no more
to reserve such property as he may have acquired
distinction between acknowledged. natural
by operation of law for the benefit of relatives who
children and illegitimate children. Théy. are all
are within the 3rd degree and who belong to the line
considered as illegitimate. Thus, the 5:4 ratio
from which such property came (C/VIL CODE, Art.
no longer applies (Id. at 292).
891).
When an illegitimate child dies before the
PURPOSES:
testator, his rights to the legitime are transmitted
1. To prevent persons who are strangers to the
to his own heirs. Representatives may either be
family from acquiring, by some chance or
legitimate or illegitimate descendants (CIVIL
accident, property which otherwise wouid have
CODE, Art. 902; JURADQ, Succession, supra at
remained with the said family (JURADO,
301).
Succession, supra at 247}; and
2. To maintain a separation between the paternal
Reason: legitimate children are considered
innocent, and therefore despite the moral lapse and maternal lines {3 TOLENTINO, supra at
270).
of their parents, they are still given a legitime,
but precisely ‘because they are born outside
marriage, their iegitime are less than those given
Nature:
legitime
It is an exception to both the system
and the order of intestate succession
of Oo
to legitimate children (6 MANRESA, supra &t iN
570).
(JURADO, Succession, supra at 247). Ww.
w
Q: Can illegitimate descendants of legitimate
children inherit by right of representation? -Q2
 SUCCESSION
Civil Law

The reserva creates a double resolutory condition

to which 'the right of ownership of the person obliged GF ORIGIN
to reserve is subjected (Id. at 276).

The Resolutory Conditions are:

1. The death of the ascendant obliged to reserve;
and B 8 F M
2. Survival of relatives of the descendant-
- propositus who are within the third degree, and
who belong to the line from which the property RESERVATARIOS ~_ RESERVISTA
came (Id.).
Pp
if the conditions are fulfilled: the property passes
in accordance with this special order of succession PROPOSITUS
to such relatives; automatic conversion into an
absolute right of ownership of the reservatario It is reservable. M, upon P's death, is obliged to
(JURADO, Succession, supra at 250). reserve it for the benefit of P's relatives who are
within the third degree and who belong to the line
If the conditions are NOT fuifilled: property is from which the property came.
released and will be adjudicated in accordance with
the regular order of succession (/d.). ) “The reservable character will terminate upon the
‘death.-of M. Therefore, B and S can claim the
Requisites: (GOLD) : property as their own (JURADO, Succession, supra
1. The property should have been previously at 249).
acquired by Gratuitous title-by the ‘descendant
from another ascendant or from” d brother or PERSONAL ELEMENTS:
sister (CIVIL CODE, Art. 897);
‘I. Origin/Origin of the Property
2. The property should have been acquired by
The Ascendant, or Brother or Sister (ABS) from
Operation of law by an ascendant ‘from his
whom the propositiis had acquired the property
descendant upon the death of the latter (GIVIL
by gratuitous title (e.g. donation, remission,
CODE, Art. 891); :
tesfate or intestate succession) (Id. at 252).
3. The descendant should have died without any
Legitimate issue in the direct descending line
The. property ‘sholld have belonged to the
who could inherit from him; and
“originator at the time of its acquisition by the
4. There are relatives of the, Descendant
_propositus. The source of the property prior to
propositus who are within, the 3 degree and
the acquisition by the originator is immaterial (3
who belongs to the line from which the property
TOLENTINO, supra at 276).
came (Id.). N

NOTE: The fourth requisite is sometimes added but

= The transmission from the origin to the
propesitus must be by gratuitous title (3 PARAS,
it is submitted to be merely a resolutory condition,
“supra at 321).
not a requisite (/d.). '
While the origin owns the property, there is no
NOTE: Reserva troncal contemplates legitimate
reserva yet, and therefore, the origin has the
relationship. Hlegitimate relationship and relationship
perfect right to dispose of it, in any way he
by affinity are excluded (Gonzalez v. Court of First
wants, subject, however, to the rule on
Instance of Manila, G.R. No. L-34385 May 19,
inofficious donations (3 PARAS, supra at 322).
1987). Preference is given to the direct line as
against the collateral line, and the rule of “nearer
If the origin of the property is a brother or sister
excludes the farther” also applies (Florentino v.
of the full-blood, the question of line is
Florentino, G.R No. 14856, November 15, 1919).
unimportant. However, if the origin is a brother
or sister of the half-blood, the common parent or
Hlustration: Before GF's death in 2003, he donated
ascendant must always be considered. If the
a parcel of land to his grandson, P, the only child of
common ascendant is the father, the property is
his deceased son F. P died intestate in 2020 without
reserved only for the relatives on the father's
any heir in the direct descending line. As a
side; if the common ascendant is the mother, the
consequence of which, the land passed to his
property is reserved only for the relatives on the
mother M in accordance with intestate succession.
mother’s side (JURADO, Succession, supra at
264-265;.
 NEF

MEMORY AID
San Beda University College of Law ~ RGCT Bar Operations Center

2. Propositus Reservista
The descendant (brother or sister) who died, The other ascendant who is obliged to reserve
and from whose death the ascendant-reservista the property for the benefit of the relatives of the
in turn had acquired the property by operation of descendant-propositus who are within the 3
law (JURADO, Succession, supra al 253; 3 degree and who belong to the line from which
PARAS, supra at 324). said property came (JURADO, Succession,
supra at 253). :
The propositus should have died without any
legitimate issue in the direct descending line He must have acquired the property by
who could inherit from him. Otherwise, it would operation of law (Id. at 260). If he inherited the
not be possible for the property to pass by property from the descendant not by legal
operation of law to an ascendant-reservista succession nor by virtue of the legitime, there is
(JURADO, Succession, supra at 260). no obligation to reserve. This happens when he
inherits the free portion by virtue of a will (3
The term “by operation of law” applies to the PARAS, supra at 324).
transmission of the legitime in case of
testamentary, and to the entire inheritance in The person obliged to reserve the property
case of intestate ‘succession (3 TOLENTINO, should be an ascendant of the descendant-
Supra at 282). propositus (Mendoza v. Delos Santos, G.R. No.
176422, March 20, 2013). A collateral relative
The property should be acquired by gratuitous cannot be a reservista.
title from an ascendant, brother or sister (CIVIL
CODE, Art. 891). Rights of Reservista
Upon the death of the descendant-propositus,
Prior charges on the property do not negate the the reservista acquires all of the attributes of the
gratuitous character of the transmission (Chua siright of bwnership, such as enjoyment, disposal,
v. Court of First instance of Negros Occidental, andiifecovery, although conditional and
G.R. No. L-29901, August 31, 1977). revocable.” Thus, he can alienate or encumber
the propérly. However, the acquirer will only
If the property is acquired by virtue of a receive a:limited and revocable title which the
compromise involving hereditary properties, it reservatarios may then rescind after the death of
can be truthfully said that the property was the reservista (JURADO, Succession, supra at
acquired, not by document of compromise but
by inheritance. Hence, the acquisition is by
gratuitous title (Cabardo v. Villanueva, G.R. No. 0 cannot, as long as the reservista is
19003, December 13, 1922). alive, impugn or annul any alienation or
encumbrance effected by the reservista,
Propositus as “arbiter of the fate'of reserva whether the same be on personal or real
troncal” property (Edroso v. Sablan, G.R. No. 6878,
As long as the propositus is still alive, there is no September 13, 1913).
reserve yet, therefore he is the absolute owner
of the property acquired by him gratuitously from If the property subject to reserva is personal
the origin, with full freedom to alienate or property, the reservista, being the full owner
encumber (3 PARAS, supra at 323). thereof, may donate, sell, or pledge them, and
the donee-purchaser becomes full owner of the
In case he sells the property and because of property. This is without prejudice to the right to
such sale he receives cash, there is no reserva reimbursement of the reservalario (should they
even if the cash is later on inherited by the survive the reservista) from the ‘estate of the
ascendant by operation of law since the cash is reservista for whatever they have lost by virtue
not the same property that he had acquired of such donation, sale or pledge (3 PARAS,
gratuitously (id.). supra at 326).

A will may prevent the constitution of a reserva. If it is a reservable real property, the reservista
In case of testate succession, only the legitime may alienate it subject to reserva troncal ie., ry
passes by operation of law. The propositus may, reservatario can recover the real property from
by will, opt to give the legitime of his ascendant the transferee as soon as ownership is
without giving to the latter properties he had: transferred to such reservatario, without 177]
acquired by gratuitous title from another prejudice of course to the Land Registration Act. LL:
ascendant, or brother or sister. In such case, a Thus, if reservable land is registered under the oF
reserva troncal is avoided (Id. at 288). Torrens System as free, an innocent purchaser
fw18
7p
 SUCCESSION
Civil Law

for value will be preferred over a reservatario: to the line from which the
However, the estate of the reservista will have to reservable property came.
indemnify ihe reservatario (/d.).
ad degree | 1. Great grandparents;
Obligations of Reservista/Rights of relatives 2. Uncles or aunts (brothers
Reservatario: (ASIA) or sisters of the full or half-
a. To Annotate in the Registry of Property the blood of the prospositus’
reservable character of all’ reservable father or mother); and
immovable property; 3. Nephews or nieces
lo Secure by mortgage: (a) restitution of (children of propositus’
movables not alienated, (b) payment of brothers or sisters of the
damages. caused by his fault or negligence, fult or half-blood)
(c) return of price received for movables
alienated or pay its value if made (id. at 263).
gratuitously, and (d) payment of value of
immovable alienated; NOTE: The origin may be a reservatario.
To make an Inventory of all reservable
property; and
Under Art. 189, par. 1 of the Family Code,
the adopted shall be deemed fc be a,
NOTE: Reservista has a period of 90 days, legitimate child of the adopters and both
shall acquire the reciprocal rights. and
from the time the reserve arises, in whithto
register the reservable character of. the : obligations arising from the relationship of
property, if he does not voluntarily cause the
parent and child. So, adopted children may
registration, reservatarios’ may. judicially
now claim the benefit of reserva froncal in
demand that he be compelled [Link]. it (3 their favor (DE LEON, Succession, supra at
TOLENTINO, supra at’292). 356):
To Appraise value of all reservable movable First cousins of the propositus are 41 degree
property (JURADO; Scagssion, ‘supra at relatives “and are not reservatarios
{Mendoza Vv ‘Delos Sanfos, G.R. No.
274).
176422; March 20, 2013).
Reservatarios
: They mist belong to the fine from which the
The relatives of the: descendant: “propositis
réservable “.pfoperty came (JURADO,
within the 3% degree and who belong ic the line
Succession, supra at 262); and
from which the property came and for whose
benefit the reservation is constituted (id. at 253). “ine from which the property came”
~tefers to the paternal line as opposed to the
Conditions: maternal line, or vice versa and not to that
a. They must be legitimate relatives of Thee
".% which is constituted by a series of degrees
descendant-propositus within the, 3d degree
which may be either direct or collateral (Id.
(ld. at 262);
at 263).
The degree of relationship must be counted
Hiustration: )
from the descendant-propositus, because it
Origin: Paternal grandfather
is only upon his death that the property
Reservista: Mother
becomes reservable (/d.). Reservatario: Paternal grandmother

PERSONS WHO CAN QUALIFY AS Considering the case, does the

RESERVATARIOS grandmother come from the line from which
the property came?

Two views:
1st degree | Legitimate father or mother First view: It is advocated by Manresa that
relatives since the law merely states that the
reservatario should belong to the line from
2nd degree | 1. Grandparents; and which the reservable property came without
relatives 2. Brothers or sisters {of the any qualification whatsoever, it is clear that
full or half-blood) belonging she would be entitled to the property (Id. at
264).
 MEMORY AID
San Bada University College of Law - RGCT Bar Operations Canter

Second view: Sanchez Roman, with whose The reserve instituted [Link] in favor of the heirs
view Justice Jurado agreed, advacated that within the third degree belonging to the lino from
since the grandmother is not related by which the reservable property came, constilutes a
consanguinity to the origin of the property real right which the reservee may alienate and
but only by affinity, she cannot be dispose of, albeit conditionally, the condition being
considered as belonging to the line from that the alienation shall transfer ownership to the
which the property came (/d.). vendee only if and when the reservee survives the
person obiiged to resetve (Sienes v. Esparcia, G.R.
Otherwise stated, the reservatario must not No. L-12957, March 24, 1967).
only be a relative by consanguinity of the
descendant-propositus ~~ within the 3% Even during the reservista’s lifetime, the
degree, but he must also be a relative by reservatanos who are ultimate acquirers of the
consanguinity of the source or origin of the property can already assert the right to prevent the
property (Id.). reservista from doing anything that might frustrate
their reversionary right. They may compel! the
i. If the origin is a brother or sister of annotation of their right in the Registry of Property
the full blood — the question of line is (Gonzalez v. Court of First Instance of Manila, G.R.
unimportant because there is no way by No.-L-34395, May 19, 19817).
which we would be able to determine
the “line from which the property came” NOTE: The person obliged to reserve is a legitimate
{Id.). ascendant who inherits from a descendant property
which proceeds from the same legitimate family
i. If the origin is a brother or sister of. (Nigva v. Alcala, G.R. No. 13386, October 27, 1920)(
the half-blood - the common parent or’ : + JURADO, Succession, supra at 253).
ascendant must always be considered
(ld. at 265). SUMMARY OF RULES:
1. Réservd Ironcal merely determines the group of
¢. They must survive the ascendant. reservisia
(id. at 262). relatives {reservatarios) to whom the property
should be returned; and
if the ascendant-reservista:is
2. Within: that ‘group, the individual right to the
survived by
property should be decided by the applicable
several relatives of the descendant-
rules of ordinary intestate succession (Padura v.
propositus and all of them are within the 31
+ degree belonging to the line from. which the 4No. L-11960, December 27,
reservable property came, the rules of legal
or intestate succession shall apply” {id. at
267). i SUBJECT TO
SERVATION
A 37 degree reservatario was still alive at GENERAL RULE: It must be the same property
the time Ihe reservista died. Said which the reservista had acquired by operation of
reservalario, even if he dies, before claiming law from propositus upon the death of the latter and
the property nevertheless transmits rights to which the latter in turn had acquired by gratuitous
his own heits fur after all, he survived the litle during his lifetime from another ascendant,
reservista (3 PARAS, supra at 338). brother or sisler (3 TOLENTINO, supra at 282).

TWO TESTS TO DETERMINE WHO CAN EXCEPTION: Substitution ‘of the reservable
QUALIFY AS RESERVATARIO: property through unavoidable necessity: (CLAD)
If there are several claimants:
1. Property is Consumable;
1. 1s the claimant a relative of the 2. Lost/dostroyed through the fault of the
descendant-
reservista;
propositus within the 3 degree”?
2. 3. Deterjorated through the same cause; and
Does he belong to the line from which the 4. It has been Alienated (JURADO, Succession,
reservable property came? (JURADO,
supra at 2/3).
Succession, supra at 265).
Z
During the whole period between the constitution of
the reserva and the extinction thereof, the 77]
reservatarios only have an expectation to the a?)
property, an expectation which cannot be Lu
transmitted to their own heir, unless these heirs are OQ
(OF
also within the 3 degree (/d. at 250).

(724
 SUCCESSION
Civil Law

reservable, while the other half shall be

REMEDIES OF RESERVATARIOS WHEN included in the free portion. Therefore, only
THERE 1S SUBSTITUTION OF THE half of 20T (10T) is reservable (JURADO,
RESERVABLE PROPERTY THROUGH Succession, supra at 261-262).
UNAVOIDABLE NECESSITY:
1. To recover the value of the property, EFFECTS WHEN RESERVATARIO
2. To seek the ownership or return thereof; and ACQUIRES RIGHT
3. If the reservable property is a sum of money — Upon the death of the reservista, the reservatario
the ordinary rules for the collection of credit nearest in degree to the descendant-propositus
apply (/d.). becomes, automatically and by operation of law, the
If the reservable property consists of sum of absolute owner of the reservable property.
money and the reservista died with no cash, the Consequently, the property is withdrawn
reservatarios can either, select equivalent It
automatically from the estate of the reservista.
property from the estate or demand the sale of cannot be sold for the payment of his debts (ld. at
sufficient property in order to raise the
276-277).
necessary amount (/d.).
CAUSES FOR EXTINGUISHMENT OF
THEORIES ON THE VALUE OF
RESERVA TRONCAL: (RP*-LAW)
RESERVA Registration by the reservista of the property as
1. Reserva Maxima free property under the Land Registration Act;
The reserve should apply to the propéty that 2. Prescription of the right of the reservatarios,
has been gratuitously acquired: from seme E when the reservista holds the property adversely
ascendant, brother or sister thatCan be included against -them in the conceptof an absolute
within the legitime of the reservista, or 1/2 of the owner (10 years from the death of the
estate (3 TOLENTINO, supra at 284). ’ propositus)i:
3. Death of all relatives of Propositus within the
This is based on general principles of law and is third: 3 degrée who belong to the line from
more equitable. It is fore in line (with the which the property came;
philosophy of the present code of sogialization 4. Los$ of the réservable property for causes not
of property (Id. at 284- 285). duesto the [Link] of the reservista;
5. Death of Asgendant reservista; and
2. Reserva Minima (Proportional Réserva) 6." Waiver:or renunciation by the reservatarios (Id.
All the property passing. to ‘hie reservista- must arr 263).
be considered as passing partly by operation of
law and partly by will of the descendant, and ‘ TRANSMISSIBILITY OF RIGHTS
therefore, one-half of the ‘properties acquired
from: another : 4. [Link] of ilegilimate children are transmitted
gratuitously by the descendant whether
upon their death to their descendants,
ascendant, or brother or sister, ghould-be
half should” be free
legitimate or illegitimate (C/VIL CODE, Art. 902).
reservable, and the other
(id.). NOTE: An illegitimate child has no right to inherit
ab intestato from the legitimate children and
Mustration: The descendant-propositus died relatives of his father or mother; nor shall such
with a will wherein his mother is instituted as
children or relatives inherit in the same manner
universal heir. The net value of his hereditary from the illegitimate child. (CIVIL CODE, Art. 992
estate is P40,000. One-half of this estate (20T)
gratuitously from his or the Rule of Barrier between the Legitimate
had been acquired
and Illegitimate Family a.k.a. “fron Curtain or Iron
deceased father, while the other half (20T) had Clad Rule”).
been acquired through his own efforts or
industry. i
2. Inthe case of legitimate children, the person/s to
properties whom the right is transmitted must be legitimate
a. Reserva maxima — alt of the supra at
descendants (JURADO, Succession,
acquired from the father are reservable
301).
because they can be contained in the
mother’s legitime. Therefore, the entire 207
Thus:
is reservable. have no right of
1. Ilegiimate children
representation with respect to their legitimate
b. Reserva minima — one-half of said
parents,
properties acquired from the deceased
father shal! be included in the legitime of the
mother which shall be considered as
 rn

MEMORY AID
San Beda University College of Lew ~ RGCT Bar Operations Center

2. lllegitimate children of illegitimate parents can INCOMPLETE LEGITIME V.

represent the latter in the inheritance of their PRETERITION
grandparents’ estate (C/VIL CODE, Art. 992).

PRINCIPLE OF UNTOUCHABILITY OF
LEGITIME
GENERAL RULE: The testator cannot deprive his
compulsory heirs of their legitime. Neither can he Heir not entirely | Total omission of the
impose any burden, encumbrance, condition, or forgotten. heir.
substitution of any kind whatsoever (CIVIL CODE,
Art. 904).
Less than the portion of | Total deprivation of
Should there be any charge, condition, substitution
the legitime. legitime.
or encumbrance upon the legitime, said charge, etc.
shall be considered as not imposed (CIVIL CODE,
Art. 872).
Remedy is to demand | Effect is the total
EXCEPTIONS: for completion of | annulment of the
1. Valid disinheritance (CIVIL CODE, Art. 915); legitime. institution of heirs.
2. Reserva Troncal (CIVIL CODE, Art. 891);
3. Family Home (FAMILY CODE, Art. 159); and
(Id. at 306).
4. When the testator expressly forbids the division
: - Any compulsory heirto whom the testator has left by
of the estate but not to exceed 20 years (CIVIL
: any title less than the legitime belonging to him may
CODE, Art. 1083).
dérhand that:the same be fully satisfied (CIVIL
CODE; 906). This is their action ad supplendam
if the testator has compulsory heirs, he'can dispose
legitimam, of their right of completion of legitime.
of his property provided he does not impair their
Such relief must be sought during the distribution
legitimes (Hacbang v. Alo, G.R. No. 191031,
# and partition stage of a case for settlement of the
October5, 2015). &
i: estate of their deceased parent (Gala v. Ellice Agro-
UL industrial Cotp., GR No. 156819, December 11,
Renunciation or compromise. as. regards future
ssi 2008s
legitime between the person ‘owning it and his
cernpulsory heir is void (CIVIL CODE, Art.“905).
NOTE: “Any title” means, for example, donation,
tate succession, remission, since a donation or
REASONS:
Bmission is merely an advance of the legitime. If
1. The rights of the heirs are merely. inchoate
iT&al preterition, as when absolutely nothing
because it is only perfected upon the testator's
is given, the heir concerned is entitled not only to a
death. Hence, there is still nothing to renounce
completion of his legitime, but also to the annulment
or compromise (JURADO, Succession; Supra at
of the institution (3 PARAS, supra at 357).
306).
2. No contract maybe entered into with respect to
future inheritance except in cases expressly REDUCTION OF INOFFICIOUS
authorized by law (CIVIL CODE, Art. 1347, Par. TESTAMENTARY DISPOSITIONS
2). Testamentary dispositions that impair or diminish
the legitime of the compulsory heirs shall be reduced
WHO MAY CLAIM NULLITY OF on petition of the same, insofar as they may be
RENUNCIATION OR COMPROMISE inofficious or excessive (CIVIL CODE, Art. 907).
1. Compulsory heir who renounced or
compromised his legitime; or EFFECT OF INOFFICIOUS DONATIONS:
2. Any co-heir who may be prejudiced by such Donations inter vivos are to be reduced if found
renunciation or compromise (JURADO, inofficious (i.e. if they exceed the free portion) for no
Succession, supra at 307). person may give by way of donation more than he 3
may give by will (CIVIL CODE, Ant. 752). The
However, if the claim for nullity is made only after the donation is considered inofficious. in all that it may
death of the testator, it is required that the heir who exceed this limitation (3 PARAS, supra at 300).
is filing the claim must bring to collation whatever he [11]
might receive by virtue of the renunciation or An alienation, however, which is for an onerous or Q
compromise (/d.). valuable consideration (as a sale) would be proper
e J
 SUCCESSION
Civil Law

since in this case, there merely is the substitution of In case of premiums, although they partake of
one kind of property for another (1d). the nature of donations, it is submitted that so
tong as they are paid from the income of the
STEPS IN DISTRIBUTION OF ESTATE IF insured and are not excessive, they are not
THERE ARE DONATIONS: subject to collation (JURADO, Succession,
supra at 316).
1. Determination of the gross value of the
estate at the time of the death of the
testator (CIVIL CODE, Art. 308);
Determination of the amount of the
legitime from the total thus found (CIVIL
CODE, Art. 908};
Gross value
a. If there is an administration proceeding:
it is the executor or administrator who, within imputation of the value of all donations
3 months after his appointment, shall return inter vivos made to compulsory heirs
to the court a true inventory or appraisal of against their legitime and of the value of
all the real and personal estate of the all donations inter vivos made to
deceased which have come to his strangers against the disposable free
possession or knowledge. portion and restoration to the hereditary
b. If there is no administration proceeding: estate if the donation is inofficious (CIVIL
it is the actual value of the estate CODE, Art. 909); and
¢. The valuation or appraisal may be made by
common agreement (JURADO, Implitation is merely a mathematical process of
Succession, supra at 314). : determining whether the value of donation can
be contained in the legitime or disposable
Determination of all debts and charges portion, as thé-case may be, or not (JURADO,
which are chargeable against the estate Succession, supra at 317).
(CIVIL CODE, Art. 908);
Distribution of the residue of the estate
NOTE: Refers to the pre-existing obligations of in'accordance with the will of the testator
the testator during his lifetime; and not to the (Id. at 310-311).
charges or burdens which aré created by the
testamentary dispositions found. inthe will MEANING OF COLLATION
because the latter are chargeable against the
portion at the testator's free disposal (JURADO,
1. Fictitious mathematical process of adding the
Succession, supra at 314). 3 valugof the thing donated to the net value of the
hereditary estate’ (CIVIL CODE, Art. 908 and
Determination of the net value of the
Arts. 1061-1077). :
estate by deducting all the debts and PURPOSE: To compute the legitime of
charges from the gross value of: the compulsery heirs (JURADO, Succession, supra
estate (CIVIL CODE, Art. 908, par. 1); al 315).
e;
Collation or addition of the value of ali’ Act of charging or imputing such value against
donations inter vivos to the net value of the legitime of the compulsory heir to whom the
the estate (CIVIL CODE, Art. 908, par. 2); thing was donated (CIVIL CODE, Arts. 1061—
1077).
Value to be collated is the value of the donation
at the time the donation was made. Any loss, PURPOSE: To take the donations in the
deterioration, or improvement of the thing from account of partition in order to equalize the
the time when the donation was made up to the shares -of the compulsory heirs as much as
time of the settlement of the estate shall be for possible (JURADO, Succession, supra at 315).
the account or benefit of the donee (JURADO,
Succession, supra at 315). Actual act of restoring to the hereditary estate
that part of the donation which is inofficious in
Proceeds of an insurance policy where the order not to impair the legitime of compulsory
beneficiary is a third person or even a heirs (Id.).
compulsory heir belongs exclusively to the
beneficiary and not to the estate of the insured.
Hence, not subject to collation (Del Val v. Del
Val, G.R No. 9374, February 16, 1915).
 MEMORY AID
Sar Beda University Caliege of Law - RGCT Bar Operations
Center

REDUCTION OF TESTAMENTARY 4. However, the amount left out of the disposable

DISPOSITIONS AND DONATIONS portion will only be 15T which is less than the
The order of preference is: ) amount of legacies made in favor of Y and 7.
1. Legitime of compulsory heirs Hence, pro rata reduction is necessary.
2. Donations inter vivos 5. Thus, to determine the legacy in favor of Y,

In case of two or more. donations where the Let: X = reduced legacy

disposable portion is not sufficient to satisfy a. 15T = disposable free portion left out
them, those of the recent date shall be reduced b. 10T = legacy to Y to be reduced
(CIVIL CODE, Art. 773). ¢. 207 = total of all legacies in favor of Y and Z

Preferential legacies or devises 107(15 150

EL SR AT
mw

All other legacies and devises (CIVIL CODE,

Art. 911). 1° 20T T2071 20T 00
NOTE: The reverse order of the foregoing shall be
followed in case reduction shall be necessary (3 6. Hence, Y is entitled to 7,500. Using the same
PARA, supra at 369). formula, Z is also entitled to 7,500 for a total of
15T (JURADO, Succession, supra at 322).
If after satisfying the legitime of compulsory heirs,
the disposable portion is sufficient to cover
NOTE: Article 911 applies when aside from the
donations inter vivos, but not the legacies and various legacies and devises, there are legitimes to
devises, the rule is that such legacies and devises be preserved (/d. at 363).
will be reduced pro rata, after satisfying those
preferential ones (JURADO, Succession, 7 Article 950 applies when there are no compulsory
321).
supra at
hein r whenithere are no inofficious donations infer
Vives Hay
Donations inter vivos are preferred over dispositions
mortis causa because the former are irrévocable by:

DISINHERITANCE
their very nature. They have been perfected upon
the knowledge of the donor thatthe done& has
accepted the donation (/d.). i ls
(ARTS. 915-923)
On the other hand, testamentary dispositions are
unilateral in character and produce juridical effects
only after the testator's death (/d.).

Formula for Pro Rata Reduction: It is thelseEof the testator in depriving a compulsory
heir of his legitime for causes expressly stated by
Reduced Legacy Legacy to be Reduced law (Id. at 327).
Disposable Portion Total of all Legacies
itis the only instance recognized by the Civil Code
Hiustration: The net value of the testator's estate is by which a compulsory heir may be deprived of his
40T. During his lifetime, he donated to X 10T. in his legitime by the testator (/d.).
will, he bequeathed 10T each lo Y and Z. He has a
son 8. Distribute his estate. PURPOSE:
To punish the ungrateful, the culpable, the cruel, the
Answer: unnatural heir or an unfaithful spouse. The purpose
The estate shall be distributed as follows: of disinheritance is not vengeance but retribution (3
1. Collate or add the donation in favor of X to the PARAS, supra at 378).
estate. [10T + 40T = 50T]
2. Determine the legitime of his compulsory heir, REQUISITES: (LV-CUTS-RED)
and subtract it to the net value. In this case, S
1. For a cause expressly stated by Law; >!
as the son is entitled to % of the estate. [507 x
v2 = 25T]. Leaving a disposable free portion of
Effectad only through a Valid will; o
AON

Cause must be Certain and true:

25T. [50T — 25T (legitime) = 257]. ov)
Unconditional;
3. Since the 10T donation in favor of X can be
imputed to the disposable free portion, it will not
Total or complete: NE
24
NOG

Cause must be Stated in the will itself;

be reduced. : The will must not have been Revoked; O
OQ
5
7
 SUCCESSION
Civil Law

8. For an Existing cause; and INSTANCES OF IMPERFECT

9. The heir disinherited must be designated in such DISINHERITANCE
a manner that there can be no Doubt as to his 1. Disinheritance has no specification as to the
identity (/d. at 381). cause; :
2 Disinheritance for a cause, the truth of which, if
The last will of the testator may be embodied in contradicted is not proved;
several documents. Taken together, they constitute 3. Cause is not one of those set forth in the Civil
his last will and testament (JURADO, Succession, Code; and -
supra at 328). 4. When one or more of the requisites for a valid
act of disinheritance is/are lacking (CIVIL
Thus, If .a compulsory heir is disinherited in one will CODE, Art. 918).
without a specification of the cause, the same may
pe cured if the cause thereof shall be specified in IMPERFECT
EFFECTS OF
another will (Id.).
DISINHERITANCE:
Since compulsory heirs may be disinherited only for 1. If testator had made a disposition of the
lawful causes, the courts may properly inquire into entire estate:
the validity of a disinheritance (3 PARAS, supra at The institution of heirs is annulled insofar as it
379). may prejudice the person disinherited; does not
.. affect the dispositions of the testator. with
EFFECTS OF DISINHERITANCE: ) respect to the free portion.
1. Deprivation of the compulsory heir who is
_Devises; legacies and other testamentary
disinherited of any participation “in the
inheritance including the ‘legitime” and free dispositions shall be valid to such extent as will
portion; i : B not impair'the legitime (3 PARAS, supra at 385).
2. The childrenidescendants:of the : persan
disinherited shall take his or her place and shall Hlustration: A disinherited B, and instituted C
preserve the rights of compulsory Heirs with and‘D as his theirs. B, C, and D are all A's
i legitimate children.<The disinheritance of B was
respect to the legitime; and. ;
The disinherited parent shall not have the invalid because [Link] for a cause not provided
3.
by law. The hereditary estate is 900,000. How
usufruct or administration ofthe propefty which
much will each of the children receive?
constitutes the legitimel (JURADO, Succession,
FIVER UE Answer:
supra at 343).
B's Jegitime is P150,000 (he gets this)
© G gets P375,000;
lilustration: T has a son A. In his will, T said; "If-A
“D gets P375,000
tries to kilt me, | will disinherit. nim”. Later A really
P900.000
tried to kill T and was duly convicted therefor.”T,
however, never made any other will,
1. Has A been validly disinherited? =~ The institution of hairs remains valid, but the
shares of the instituted heirs will be decreased
2. Will A inherit anything? ’
to'give B his legitime (/d.).
Answer:
2. If testator did not dispose of the free
1. No, A has not been validly disinherited, because
the disinheritance was conditional, and for a portion:
is given all that he is
cause that had not yet occurred at the time the The compulsory heir
will was executed. entitled to receive as if the disinheritance has
2. No, A will not inherit, not because of not been made, without prejudice to lawful
disinheritance, but because he is incapacitated dispositions made by the testator in favor of
to succeed, by virtue of Art. 1032(2), which others (Id. at 386).
provides that any person who has been
convicted of an attempt against the life of the Niustration: T has two legitimate children, A
testator is incapable of succeeding by reason of andB. His estate is 1 million. In his will, T gave
unworthiness (3 PARAS, supra at 387) A his legitime of % and ineffectively disinherited
B. How much will B get?
Revocation of the disinheritance may be conditional
(1d). Answer: B gets P250,000 as legitime, and a
half share as intestate share in the free portion
of P500,000 (or P250,000). Thus, he gets a total
of P500,000 (/d at 385).
 MEMORY AID
HFEF OD

Ban Beda University College of Law - RGCT Bar Operations Center

IMPERFECT DISINHFRITANCE V.
PRETERITION
A will is always | May exist with or
required. without a will (as when
everything is given to
only one of the
compulsory heirs by
The person disinherited The person omitted way of donation inter
may be any compulsory must be a compulsory
vivos).
heir. : heir in the direct line.

May be VALID when all | The institution is always

Always express. Always implied.
of the requirements of | VOID, except when the
the law are met. preterited heir
predeceased the
testator. ’
Always intenticnal. May be .intentional or (fd. at 327-328; 343-344).
unintentional,
lHustration: X died leaving his instituted heirs
namely: his wife W, and his 2 daughters A & B
Partial annulment of Total annulment of without designating their respective shares. His 31
institution of heirs. institution of heirs. daughter, C, however, was omitted entirely without
being disinherited. In the will, X also bequeathed a
: _ tegacy of P20,000 to A. The net value of the estate
i 15'P240,000: How shall such estale be distributed?
Institution remains Institution is completely
valid, but must be annulied. Answer: There was preterition in this case. Thus,
reduced insofar as the the rules of intestacy shail be applied. The P20,000
legitime has been was not inofficious because it can easily be
impaired. contained’ in: the disposable free portion. The
(JURADO, Succession, supra at 329). . distribution shall be as follows:

VALID DISINHERITANCEV.

A 15,000 20,000 {75,000

B 40,000 15,000 -- 55,000
Cc 40,000 15,000 - 55,000
Always intentional May be intentional or
unintentional Ww 40,000 15,000 - 55,000

However, if there was imperfect disinheritance in the

abovementioned problem such that there was
The cause must always May be with or without a
disinheritance without any specification of the cause,
be stated in the will and cause.
it must be true and
the estate shall be distributed as follows:
legal.

The disinherited heir Preterition annuls the A 40,000

inherits nothing. institution, therefore the B 40,000
omitted heir inherits.
i

Cc 40,000
w 40,000
 SUCCESSION
Civil Law

The disinheritance of C was defective for failure to if after conviction there is pardon,
state the cause or ground of disinheritance. C will not disinheritance is still proper, unless, the
get a parl of the free portion because the effect of pardon be based on the heirs complete
imperfect disinheritance is only to annul the innocence (3 PARAS, supra at 30).
institution of heirs insofar as it prejudices the legitime
of the disinherited. The effect differs from preterition Conviction for “homicide thru reckless
where the annulment of the institution of heirs is total imprudence” is not a ground under par. {1)
(ld. at 330-331). in view of the absence of intent to kill (/d.).

A document, entitied “Kasulatan ng Pag-Alis ng When the heir by Fraud, violence,

Mana,” although it may initially come across as a intimidation, or undue influence causes
mere disinheritance document, is considered a will if the testator to make a will or to change
it conforms to the formalities prescribed by law. one already made;
While it does not make an affirmative disposition of
the testator’s property, the disinheritance of an heir, When the heir has Accused the testator
nonetheless, is an act of disposition in itself (Dy
of a crime for which the law prescribes
Yieng Seangio v. Reyes, G.R. Nos. 140371-72,
November 27, 2006).
imprisonment for 6 years or more, if the
accusation has been found groundless;
There is no preterition when the document merely and
mentions the name of ane of the heirs, and does not :
operate to institute him as the [Link]. In this ‘Requisites:
case, there is no institution of an” héir: "to “the a. Heiraccused the testator of a crime;
exclusion of other compulsory heirs” {Dy Yieng h. Penaltyfor the crime is imprisonment for 6
Seangiov. Reyes; G.R. Nos. 140371: 72, November: years or more; and
27, 2006). e Aceusation ‘must have been found to be
groundigss (JURADO, Succession, supra al
COMMON CAUSES © | FOR 333-334). .
DISINHERITANCE OF CHILDREN OR The heir shall-make the accusation either in the
capacity of a2 complainant or of a witness (/d. at
DESCENDANTS, PARENTS = OR 334).
ASCENDANTS, AND SPOUSE; (AFAR)
1. When the heir has been found guilty of There must he a judicial declaration that the
dccusation’ has been found groundless (3
an Attempt against the: life: of“ the: ..
+. TOLENTINO, supra at 362).
testator, his/her “descendants; or
ascendants, and spouse in. _case of . _ Acquittal of the testator on the ground of lack of
children and parents; “prosf of guilt beyond reascnable doubt, or lack
~“of. criminal intent does not necessarily mean that
Requisites: “the “gCeUsation was groundless (Javier v.
a. The disinherited heir must have committed ~Lucefo, G.R. No. L-6708, March 29, 1954). In
either attempted or frustrated pafricide | ‘other words, the testator would not have the right
against the testator; and to disinherit the accusing heir (3 PARAS, supra
b. He must have been convicted by final at 390.
judgment of said criminal offense.
Applicable whether as principal, accessory 4. Refusal without justifiable cause to
or accomplice {/d. at 333). support the testator who disinherits
such heir
NOTE: If the attempt is made by the spouse,
Judicial demand for support is not necessary (3
conviction is not necessary (/d. at 342).
TOLENTINQO, supra at 362). However, the
refusal must be without justifiable cause (Id. at
Even if there is no previous criminal
363). If with justifiable cause, the disinheritance
conviction, the attempt, if it is made against
is imperfect or ineffectual (JURADO,
the life of the testator, will constitute a valid
Succession, supra at 334).
ground for disinheritance under Art. 919(€)
(maltreatment of the testator by word or
Examples of justifiable reasons include: reduced
deed) of the Civil Code; provided all the
resources resulting in the neglect even of his
requisites for said ground are present (/d. at
own needs, and the testator’s fortune improved
333). that he no longer needs support (/d.). :
 [|cozcrriasan]

MEMORY AID
San Beda University Coliege of Law - RGCT Sar Oparstions Canter

PECULIAR CAUSES FOR or refusal to perform the natural and legal

DISINHERITANCE obligations of care and support which
parents owe to their children (Sanios v.
1. Children/Descendants: (C- MAD) Aranzanso, G.R. No. L-23828, February 28,
a. Conviction of a crime which carries with it a
1966)
penalty of civil interdiction;
b. Maltreatment of the testator by word or deed Inducing their daughters to live a corrupt
by the child/descendant; and immoral life comprehends the act of
the parents in inducing their daughters or
NOTE: Must be intentional or voluntary (fd. granddaughters, by advice, force,
at 335). intimidation or any other positive act, to five
a life of corruption and immorality (JURADO,
"NOTE: Maltreatment by an ascendant of a Succession, supra at 337).
descendant does not constitute a ground for
disinheritance as it is generally in the Attempt against their virtue includes any
exercise of a power. The reverse is, criminal act against the child's chastity by
however, repugnant to natural law and the parent/s either as principals, co-
therefore a ground for disinheritance (3 principals or accomplices (/d.}.
PARAS, supra at 393).
Loss of parental authority for causes
When the child/descendant has been specified in the Code; and
convicled of Adultery or concubinage with
the spouse of the testator; and NOTE: There must be an actual loss
effected by final judgment (Id. at 338).
NOTE: Final judgment of conviction is ian®:
essential requisite (JURADO, Succession,
Twg Views on the Effect of Restoration of
supra at 334).
drental Authority
1st View: No effect on the disinheritance
When the child/descendant * leads a
becéuse the ground or basis for the
‘Dishonorable or disgraceful life {it includes disinheritance is not the loss of parental
both male and female descendants) (Cir
authority ‘but the offense committed by the
CODE, Art. 919, par. 7).,
offender (id. at 339).
NOTE: In this ground, final cofiviction is nat,
J The testator would be deprived
necessary (DE LEON, Succession, supra at
of his right to disinherit his parent or
427). It may cover adultery or ¢oncubinage ascendant, or it would render the
without conviction (JURADO, Succession, .disinheritance ineffectual because the legal
supra at 334). :
“basis for disinheritance would no longer
exist (/d.).
NOTE: The Code Commission broadened
the scope of Art. 853 of the Old Civil Code Reconciliation of the Two Views:
which only covered the act of prostitution by
Even if there is a restoration of the parental
a daughter (3 PARAS, supra at 393). authority brought about by absolute pardon
A single acl is not ordinarily sufficient, for
or by the spouses or reconciliation, it cannot
“leading a life” implies continuity to be a
erase the existence of the offense against
sufficient cause for disinheritance {/d.). the testator. The law allows the testator to
punish not the consequence of the offense
2. Parents/Ascendants: (CALA) but the offense itself (Id. at 340).
a. When the parent/ascendant has been
convicted of adultery or Concubinage with Grounds for Loss of Parental Authority in
the spouse of the testator; Relation to Disinheritance: (CLEB)
When the parents have Abandoned their i. Treats the child with Excessive
children or induced their daughters to live a harshness or cruelty;
corrupt or immoral life, or attempted against i. Gives the child Corrupting orders, TE
their virtue; counsel, or example; Oo.
ili. Compels the child to Beg; or
Abandonment — refers to the failure of the iv. Subjects the child or allows him to be
parents to give their children due care, BE 7 J
subjected to acts of Lasciviousness. :
instruction and support (JURADO, LO
Succession, supra at 337). lt means neglect
LO
hn
 - SUCCESSION
Civil Law

The grounds enumerated above are If the parents should again live together in the same
deemed to include cases which have house, reconciliation between them is thereby
resulted from culpable negligence of the presumed (Id. at 399).
parent or the person exercising parental
authority (ld. at 338-339; FAMILY CODE, Reconciliation = Pardon + Acceptance of Pardon
Art. 231).
Pardon by the testator must have been accepted by
d. Attempt by one of the parents against the the offender, thus resulting in a reconciliation
life of the other, unless there has been between the two (JURADQ, Succession, supra at
reconciliation between them (CIVIL CODE, 343).
Art. 920, Par. 2).
1. If express pardon — A general pardon extended
NOTE: Final judgment of conviction is not by the testator on his deathbed to all who have
necessary (JURADO, Succession, supra at offended him will not suffice; it must be a pardon
340). expressly and concretely extended to the
offender, who accepts it (BALANE, Succession,
3. Spouse: (LP) supra at 402 citing 6 Manresa, Op. Cit., p. 567).
When the spouse has given cause for Legal 2. If conduct — the intent to forgive must be clear.
separation (FAMILY CODE, Art.55); and This is ultimately “a question of fact (which) will
be resolved, in case of controversy, by the
NOTE: Criminal conviction is nota condition . Teourts” (Id.).
sine qua non (JURADO, Succession, ‘supra
at 342), Neither is a decree ‘of legal No particular -form is required. It may be made
separation (3 PARAS, supra at 399). expressly or tacitly (3 PARAS, supra at 401).
Effectsof Subsequent Reconciliation:
b. When the spouse [Link] grounds for the 1. Deprives the offended party of the right to
loss of Parental authority (CIVIL CODE; Ar. disinherit; and
921). 2. Renders ineffegtual any disinheritance that may
have been méide (CIVIL CODE, Art. 922).
GROUNDS FOR HEVORATION OF .
Effect of Subsequent Reconciliation if ground for
DISINHERITANCE: (RIN) © Disinheritance Is Unworthiness to Succeed
1. Reconciliation;
1. If disinheritance has been made: Rule on
2. Making of new will making the disinherited heir reconciliation ‘applies. The - disinheritance
an Instituted heir.; and : becomes ineffective (CIVIL CODE, Art. 922).
3. Nullity of the will which “eontains the :
disinheritance (3 PARAS, supra at 402). NOTE! If the cause of unworthiness was made
a, ground for disinheritance and there is
The fact that a void will containing-a disinheritance “reconciliation, the mere fact of reconciliation
is denied probate cannot be said" 10 revoke a extinguishes the unworthiness and no written
disinheritance for there never was :.a valid
doetiment is needed for ‘a condonation (3
disinheritance. Hence, there is nothing to revoke
PARAS, supra at 402).
(ld.).
2. If disinheritance has not been made: Rule on
Once disinheritarice has been revoked or rendsred reconciliation does not apply. If the cause of the
ineffectual, it cannot be renewed except for causes disinheritance is also a cause of unworthiness,
subsequent to the revocation or based on new the heir continues to be incapacitated to
grounds (3 TOLENTINQ, supra at 373).
succeed unless pardoned by the testator under
Art. 1033 of the Civil Code (Id).
RECONCILIATION
It is either an express pardon extended by the RIGHT OF REPRESENTATION IN
testator [Link] offending heir or unequivocal conduct DISINHERITANCE
of the testator towards the offending heir which
The children and descendants of the person
reveals the testator's intent to forgive the offense
disinherited shall take his or her piace and shall
(BALANE, Succession, supra at 402).
preserve the rights of compulsory heirs with respect
to the legitime only (CIVIL CODE, Art. 923).
It implies mutual restoration of feelings to the status
quo, that is, to the relationship existing prior to the
NOTE: The right of representation extends only to
commission of the act which strained said
the legitime. If the disinherited person had been
relationship (3 PARAS, supra at 399).
given any legacy, devise, or part of the free disposal,
 MEMORY AID
San Beda University College of Law - RGCT Bar Operations Cerner

same will go to the substitutes, if any; if none, to the Compulsory heirs charged with a sub-legacy are
other heirs, legatees, or devisees by accretion if
liable in proportion not to how much each actually
proper; if accretion is not proper, same should go to
inherits, but only in proportion to their institution to
the legal heirs by intestacy (3 PARAS, supra at 404).
the free disposal (3 PARAS, supra at 407).

In testamentary succession, the right of lilustration: T has an estate of P1 million. A and B,

representation can take place only in the direct
T's legitimate children, were instituted in this way: A
descending line, but never in the ascending to 3/5 and B to 2/5. However, they were required to
(JURADO, Succession, supra at 344). give F a legacy of P50,000. How much should each
contribute?

LEGACIES AND DEVISES A: A was given P600,000 (250,000 as legitime and

P350,000 as free portion); B was given P400,000
(ARTS. 924-959) (P250,000 as legitime and P150,000 as free
portion). Since their institution ta the free portion is
in proportion of P350,000 to P150,000 (or 35 to 15),
it follows that of the P50,000 sub-legacy, A must give
P35,000 and B must give P15,000 (/d.).
PERSONS CHARGED WITH LEGACIES
AND DEVISES: Example of Sub-legacy or Sub-devises
1. Compulsory heir; The testator said, “| give my car to L, but | want L to
2. Voluntary heir; give P500,000 to X”.
3. Legatee or devisee: and ; NOTE: The legacy of the car to L is an ordinary
4. Estate (JURADO, Succession, Supra at 345). legacy; but the legacy of P500,000 to X is a sub.-
i legacy having been imposed upon L (ld.).
If the will is silent as to who shall pay or deliver the
legacy/devise:
1. If there is an administration proceeding, it
. LIABILITY
FOR EVICTION
1. If devise. or legacy is indeterminate or
constitutes a charge upon the estate.
generic: “The heir who is charged with the
2. Ithere are no administration proceedings. itis a
payment or delivery of the devise or legacy shall
charge upon the heirs (/d.). : i be ligble in case of eviction.
NOTE: A legacy is “bequeathed” while a ‘tavise is
“devised” (3 PARAS, supra at 404). eviseoriegacy is determinate or specific:
The heir whois charged cannot be held liable in
case of eviction (JURADG, Succession, supra
EXTENT OF LIABILITY OF at 346-347).
LEGATEES/DEVISES
The legatees/devisees shall be liable for the charge tie legacy or devise is a burden not on the
to the extent of the value of the legacy/devise heir but on the estate itself, there is no warranty
received (JURADO, Succession, supra at 345-346). against eviction, whether the legacy be specific or
generic, if there were court proceedings which
LIABILITY WHEN NO ONE 1S CHARGED ordered the giving of such legacy or device. In this
Should the case, there was court approval (3 PARAS, supra at
testator not charge any legatee or
devisee in particular, all shall be liable in the same 408).
proportion in which they may inherit (Id at 346).
SOLIDARY LIABILITY OF HEIRS WHO
The payment of a legacy provided for in a will cannot TAKE POSSESSION
be ordered by the court unless the estate of the I two or more heirs take possession of the estate,
deceased has first been liquidated, i.e., the assets they shall be solidarily liable for the loss or
determined and all debts, taxes and expenses have destruction of a thing devised or bequeathed, even
been paid (Pastor, Jr. v. Court of Appeals, G.R. No. though only one of them sheuld have been neglige
L-56340, June 24, 1983). nt
(CIVIL CODE, Art. 927).

PRINCIPLE OF UNTOUCHABILITY OF
THE LEGITIME OF COMPULSORY HEIR oSZz.
The compulsory heir shall not be lable for the charge 0
beyond the disposable portion given to him (CIVIL [17
CODE, Ant. 925, par. 2).
legitime.
It should not affect his [&)
LQ
= |
Bh
 SUCCESSION
Civil Law

Or THINGS An order to acquire the unowned part is not essential

LEGACY/DEVISE for it is sufficient for the declaration to be express
BELON GING TO ANOTH ER CL
(1d).
1. If there was an erroneous belief on the
part of the testator that the property or EFFECTS OF PARTITION
thing bequeathed was his: In case of subsequent division or partition between
The legacy or devise shall be void because you the owners in common:
cannot give what you do nol possess or own the thing is physically divisible or
1. If
(JURADO, Succession, supra at 349). convenient of division: Ar. 929 of the Civil
Code applies.
NOTE: But if the thing bequeathed, though not
belonging to the testator when he made the will, 2. if the thing is physically indivisible or
afterwards becomes his, by whatever title, the inconvenient of division: the rules applicable
shall take effect (CIVIL CODE, Art.
disposition shall depend upon whether the thing is finally
930). The acquisition by subsequent title is an adjudicated to the testator or to the other owner
example of an acquisition between the time of applying the provisions of Arts. 929 and 930 of
the making of the will, and the testator's death. the Civil Code (JURADO, Succession, supra at
This would be justified since after all, the will 347-348).
becomes effective only at the time the testator -
dies (3 PARAS, supra at 412). THE
EFFECTS OF PARTITION WHEN
PROPERTY IS NOT DIVISIBLE:
2. If the testator knew that the property or
thing belonged to another: . . on 1. Adjudication to the testator
The legacy or devise shall “be valid. “a. testator did not bequeath the entire
Consequently, there shall be'a présumption that ~~ property: the legacy or devise shall be
effective “only as to the part formerly
the thing must be acquired by. the: executor or
administrator or by an heir expressly charged
belonging to the testator before the partition;
b. if testator : bequeathed the entire
with ‘such obligation (JURADO, Succession,
Supra at 349-350). oF . property: the whole property shall pass to
the heir,” devisee or legatee (JURADO,
THINGS Succession, stipra at 348).
LEGACY/DEVISE : OF
BELONGING PARTLY TO ANOTHER 2. "Adjudication to a third person :
GENERAL ‘devise- shall be
ofcy.
RULE: The lega © a. if-testator did not bequeath the entire
understood to be limited 1G. the testator, heir, or
© “property: the legacy or devise shall be
legatee’s part or interest (CIVIL CODE, Art. 929). : without effect (CIVIL CODE, Art. 957).
b. If: testator bequeathed the entire
EXCEPTION: Testator may expressly declare that . property: the legacy or devise shall be
he bequeaths or devises the thing in ifs eittirety “without effect only as to the part formerly
(JURADO, Succession, supra at 347) = } - * Belonging to the testator but shall still be
~Effective with respect to the part of the third
Requisites: (EK) — person (JURADO, Succession, supra at
1. Anh Express declaration to that effect appearing 348).
in the will itself; and
2. Knowledge on the part of the testator that the In Art. 929, the stranger PARTIALLY owns the
thing belongs partly to a third person (can be property. in Art. 930, the stranger WHOLLY owns
proven from the context of the will or from the property (3 PARAS, supra at 412).
extrinsic evidence) (fd.).
WHEN TESTATOR ORDERS
NOTE: For the exception to apply, the testator must
ACQUISITION
“expressly declare that he gives the thing in its
entirety.” This clause has been interpreted to mean The heir upon whom the obligation is imposed or the
that the whole is being given despite the testator's estate must acquire it and give the same to the
knowledge that he does not own the entire thing. If legatee or devisee; but if the owner refuses, or
the testator thought he owned the whole thing, and demands an excessive price, the heir or estate shall
he says that he gives the whole thing, only the part only be obliged to give the just value to the
that he owns should be given, the rest being a void legatee/devisee (CIVIL CODE, Art. 931).
legacy, unless of course, subsequent to the making
of the will, he becomes the owner of said remainder NOTE: In Art. 931, the testator knows that he is not
-- “by whatever title” (3 PARAS, supra at 410). the owner of the thing being givén (3 PARAS supra
at 413).
 MEMORY AID
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LEGACY OF THINGS BELONGING TC PLEDGED OR MORTGAGED

LEGATEE LEGACIES/DEVISES
The legacy or devise of a thing which at the time of When the thing bequeathed has been given as a
the execution of the will already belonged to the security for a recoverable debt, the estate shall be
legatee or devisee shall be ineffective even though obliged to pay the debt, unless a contrary intention
another person may have some interest therein of the testator appears (CIVIL CODE, Art. 934, pars.
(CIVIL CODE, Art. 932, par. 1). 1-2). The legatee/devisee should receive it free from
the encumbrance (3 PARAS, supra af 418).
EFFECT OF ACQUISITION BY LEGATEE
Any other charge, perpetual or temporary with which
(JURADO, SUCCESSION, SUPRA AT
the legucy/devise is burdened, passes to the
351-352): legatee/devisee (e.g. usufrucls, easements, leases
1. i the thing belonged to a third person at which are real rights) (CiVIL CODE, Art. 934, par. 3).
the time of the execution of the will;
a. If the testator erroneously believed that LEGACY OF CREDIT AND REMISSION
it was his: the legacy or devise shall be void
OF DEBT
and the subsequent acquisition shall have
Legacy of Credit ~ takes place when the testator
no effect.
bequeaths to the legatee a credit which he has
b. if the testator had knowledge that it was
against a third person (CIVIL CODE, Arts. 935-937;
not his: the second paragraph of Art. 933 is
3 PARAS, supra at 421).
applicable.
i. If the legatee or devisee acquires jt
There is, in effect, a novation of the credit by
gratuitously, he can claim nothing by
+. subrogating the legatee in the rights of the original
virtue of the legacy or devise.
creditor (JURADO, Succession, supra at 354). If the
ii. If the legatee or devisee acquires it by.
L% Ahird person ‘pays to the testator, the legacy or devise
onerous title, he can demand
Shalt'bé deemed to have been extinguished.
reimbursement.

Example: Ti D's creditor for P1 Million. In his wil,

2. Ifthe thing belonged to the testator at the T gave this'credit to L (3 PARAS, supra at 421).
time of the execution of the will; and
a. If thing is alienated in favor of a third Legacy of Remission of Debt — waiver of a debt
person: legacy or [Link] revoked by Art. existing: atthe, time. the will was made and in the
957 and the subsequent acquisition cannot amount’® ng at the time of the death of the
revive the legacy or devise. testator (CIVIL CODE, Arts. 935-937; 3 PARAS,
b. If the thing is alienated in favor: of the : 3 supra at 422).
devisee or legatee: there is no revocation.
xampiex T is D's creditor for P1 Million. In his will,
3. Ifthe thing belonged to the beneficiary at was remitted this debt of D {3 PARAS, supra at 421).
the time of the execution of the will: the
legacy orf devise shall be without effect, NOTE: Effective only as regards to credit or debt
even though it may have been existing at the time of the death of the testator (C/VIL
subsequently alienated by him (CHIL CODE, Art. 935, par. 1).
CODE, Art. 933, par. 1).
a. If the legatee or devisee acquires it Kinds of Legacy of Remission of Debt
gratuitously after the execution of the will, he 1. Generic — comprises all debts existing at the
can claim nothing by virtue of the legacy or time of the execution of the will but not
devise; subsequent ones.
b. If it has been acquired by onerous title after 2. Specific — comprises only the debt which is
the execution of the will, he can demand specifically mentioned in the will.
reimbursement from the heir or the estate 3. Legacy to the debtor of the thing pledged by him
(CIVIL CODE, Art. 933, par. 2). (JURADO, Succession, supra at 354).

DISPOSITIONS IN GENERAL TERMS Revocation of Legacy

It takes place when the testator, after having made
A disposition made in general terms in favor of the
the legacy of credit or remission of debt, brings a
testator's relatives shall be understood to be in favor
judicial action against the debtor even if payment
of those nearest in degree (CIVIL CODE, Art. 959).
should not have been effected at the time of death
(CIVIL CODE, Art. 936, par. 1).
 SUCCESSION
Civil Law

The legacy of credit shall be considered revoked Exampie: The testator bequeaths 5 hectares of “rice
if the testator shall: lands” ta A.
1. Bring an action against the debtor for payment
of his debt; and A devise of indeterminate real property is valid only
2. There must be a judicial demand, hence an if there be immovable property of its kind in the
extrajudicial demand shalt not be sufficient to estate (CIVIL CODE, Art. 941, par. 2).
revoke the legacy (JURADO, Succession, supra
at 355). WHEN RIGHT TO DEVISE OR LEGACY IS
TRANSMITTED
LEGACY TO CREDITORS 1. If specific — from the testator's death
Legacy/devise made to creditor shall not be applied 2. If generic — from the time a selection has been
to his credit, unless the testator provides otherwise made, sc as to make the property specific
(CIVIL CODE, Art. 938). 3. If alternative — from the time the choice has been
made
ALTERNATIVE LEGACIES/DEVISES 4. If acquired from a stranger by virtue of an order
Those where the testator bequeaths or devises two by the testator ~ from the moment of such
or more things but which can be complied with by the acquisition (JURADO, Succession, supra at
delivery of only one of them to the beneficiary 360-362).
(JURADO, Succession, supra at 356).
LEGACY FOR EDUCATION AND
To Whom Choice is Given: SUPPORT (CIVIL CODE, ART. 944)
1. The heir, upon whom the obligation to give the
A legacy:
for education lasts until the legatee is of
legacy or devise is imposed; or .
age; or beyond the age of majority in order that the
2. The executor or administrator, if, Ho heir is
legatee may finish'some professional, vocational or
obliged (CIVIL CODE, Art. 940, par. A). general course, provided he pursues his course
NOTE: Choice will have to be: made Upon the death diligently.
of the testator. Once the choice is made, it is
A legacy for [Link] during the lifetime of the
irrevocable, and the legacy. bgcomes simple legates, if the testator has not otherwise provided.
(JURADO, Succession, supra at 356). -
if the testator has not fixed the amount of such
If the heir, legatee or deviseg diss before making the
legacies; it shall be fixed in accordance with the
choice, this right shall pass: Ho their respective: heirs. -
"social standing [Link] circumstances of the legatee
(Jd. at 357). and the value of the estate.
The choice must be communicated to‘the recipient; ifthe testator or during his’ lifetime used to give the
after which the communication the alternative legacy
legatee a certain sm of money or other things by
becomes a simple one (3 PARAS. supra at 427). a way, of support, the same amount shall be deemed
: bequeathed, unless it be markedly disproportionate
GENERIC LEGACIES AND GENERIC to the value of the estate.
DEVISES
Generic Legacy — legacy consisting of personal "LEGACY/DEVISE SUBJECTED TO
property designated merely by its class or genus SUSPENSIVE TERM
without any particular or physical segregation from What is suspended by the term or ‘period is not the
all others of the same class (JURADO, Succession,
acquisition of the right but merely the demandability
supra at 357-358).
of the right (JURADO, supra at 360).
Example: The testator bequeaths “10 horses” fo A.
LEGACY/DEVISE SUBJECTED TO A
A legacy of generic personal property is valid even if SUSPENSIVE CONDITION
there be no such things of the same kind in the What is acquired upon the death of the testator by
estate (CIVIL CODE, Art. 941, par. 1). the legatee/devisee is only a mere hope or
expectancy. Such hope or expectancy is converted
Generic Devise — refers to a devise consisting of into a perfected right only from the moment of the
real property designated merely by its class or genus fulfillment of the condition (id.).
without any particular designation or physical
segregation from all others of the same class If the legatee/devisee, after the ceath of the testator,
(JURADO, Succession, supra at 358). dies before the fulfillment of the condition, he cannot
transmit his expectancy to his own heirs (/d.).
 MEMORY AID
8an Bada University College of Law - RGCT Bar Operations
Center

CLASSIFICATION OF LEGACIES
As to effect

a third person and the by virtue of the

legatee/devisee acquired the legacy/devise
Belonging to the testator at the Effective property gratuitously after the
time of the execution of the will execution of the will (CIVIL
until his death. CODF, Art. 933).
Belonging to the testator at the Revoked Testator had knowledge that the Legatee/devisce
time of the execution of the will thing bequeathed belonged to a can demand
but alienated in favor of a third third person and the reimbursement
person (CIVIL CODE, Art. 957). legatee/devisee acquired the from the heir or
property by onerous title (C/ViL estate
Belonging to the testator at the No revocation. CODE, Art. 933).
time of the execution of the will There is a clear
but alienated in favor of the intention to comply | -
legates/devisee gratuitously with legacy or
(JURADO, Succession, supra devise.
at 352).
. Within the commerce of man
Belonging to the testator at the Legatee/devisee
time of the execution of the will . Owned by testator
can demand - Owned by stranger if there is an order, express
but alienated in favor of the reimbursement
legatee or implied, to acquire it from him
or devises onerousty from the heir or
(Id). 4. Given because of moral obligation
estate
ven atural obligation
Not belonging to the testator at Effective personal property — even if there be
the time the will is executed but none in thy estate
he has ordered that the thing be
acquired in order that it be given
to the legatee/devisee (CIVIL],
1. Outside the commerce of man
CODE, Art. 931).
2. "Qwned by stranger but mistakenly believed by
Not belonging to the testator at Void testator [Link]
6 owned by the latter (unless later
the time the will is executed and owned by‘the latter)
the testator erroneously 3. Legacy in a void will
believed that the thing pertained Generic real property if there be none of its kind
to him (CIVIL CODE, Art. 830). Ze Ntheestate
5. If totally inofficious
Not belonging to the testator at Effective
the time the will is executed but
afterwards becomes his by
whatever title (CIVIL CODE, Art. 1. Those revoked expressly
930). 2. Those revoked impliedly as when same
Already (legacy) is given to another by a subsequent
beloriged to the Ineffective
legatee/devisee at the time of
will
the execution of the will even
3. Those revoked by implication of law —
transformation, alienation by testator except
though another person. may
have interest therein (CIVIL when reacquired by right of repurchase
or
CODE, Ant. 932). judicial demand
4 . Destruction or loss thru a fortuit
ous event
Already belonged to the legatee Ineffective 5 - Intentional destruction by testator
or devisee at the time of the 6. Predecease, repudiation, incapacity of legatee
|
execution of the will even 7 . Disinheritance if legates is compulsory
heir
though it may have been {3 PARAS, supra at 455-456).
2
subsequently alienated by him ~Q
(CIVIL CODE, Art. 933).
7]
Testator had knowledge that the Legatee/devisee [72]
thing bequeathed belonged to can claim nothing
Ld
QQ
—)
7s)
 SUCCESSION
Civil Law

Form is the external -appearance while

RULES ON PREFERENCE
denomination is the name by which it is known
by all (JURADO, Succession, supra at 373).

The transformation must be both with respect

(LIPO) (RPSESO) to the form and denomination (/d.).

1. Legitime of | 1. Remuneratory LID
compulsory heirs 1. Preferential LID When the testator donates or sells the property
2. Donations inter | 2. L for Support bequeathed, there is implied revocation of the
vivos 3. | for Education disposition. The presumption under the law is
L/D of a Specific, that there has been a change of intention (3
3. Preferential legacies | 4.
or devices determinate thing PARAS, supra at 450-451).
.
4. Alt Other legacies or which forms a part a presumption that the testator's
of the estate There arises
devices pro rata
All Others pro rata. intention has changed (/d.).

2. Revocation by Alienation
When the testator by any title or for any cause
1. When the reduction { 1. When there are no alienates the thing bequeathed, or any par
is necessary lo| compulsory heirs] thereof, it being understood that in the latter
preserve the| and lhe entire estate . “case the legacy or devise shall be without effect
legitime of is distributed by. the “only with respect to the part alienated (CIVIL
heirs testator as “legacies FRR CODE, Att. 957, par.2).
compulsory
impairment or devises;:of ART at
from
whether there are | 2. Wheri-, there are.r- == GENERAL RULE: if the thing alienated should
donations inter vivos compulsory heirs but again belong to the testator even it be due to the
or not; or their legitime has’... 0 nullity of the contract, there can be no revival of
2. When, although the | ‘already ~~for been the legacyldevise [CIVIL CODE, Art. 957, par.2).
by the : : : Lh
legitime has been | | provided
by the |: estalor and thers The reacquisition was effected by
EXCEPTION:
preserved i the: exefcise-i @ of the right of
testator himself, | | are. :no donations
there are donations | + “inter vivos (1d). “© repyrchaselfedemption (CIVIL CODE, Art. 957,
vivos CL SET rT pana) I.
inter i £0
(JURADO, : SR
Succession, supra} is RE. 3. Revocation by Loss or Destruction
at 363). EERE oo Thing bequeathed is totally lost during the
: . NE © lifetime of the testator, or after his death without
NOTE: In case of reduction in the'above cases, the _the'Taultof the heir/s (CIVIL CODE, Art 957, par.
ps, os :
inverse order of payment should be followed, ~~"
EFFECT OF INEFFECTIVE Lose” efors both to both physical Joss and legal
or juridical loss, as in expropriation proceedings
— — (3 PARAS supra at 453).
LEGACIES/DEVISES
GENERAL RULE: In case of repudiation, revocation Poa i
3
or incapacity of the legatee or devisee, the Bt Ar loci om Jai
legacy/devise shall be merged with the mass of the 4 Reve: caren
9 pay
hereditary estate. (CIVIL CODE, Art. 936, par. 1).

EXCEPTION: In cases of substitution or accretion 5. Other causes:

’ a. Nullity of the will;
(CIVIL CODE, Art. 356). b. priniiabed with suspensive conditions
GROUNDS FOR REVOCATION OF
altectin e bequesis;

DEVISES c. Sale of the thing to pay the debts of the

LEGACIES AND the settlement of his
deceased during
1. Revocation by Transformation
estate; or
When the testator or his agent transforms the
d. Revocation of legacy of credit/remission of
thing bequeathed in such a manner that it does
it debt (CIVIL CODE, Art. 957in refation to Art.
not retain either the form or the denomination
830, par. 1).
had (CIVIL: CODE, Art. 957, par. 1).
 MEMORY AID
Leics

Sen Beda Universily College of Law - RGCT Bar Operations Center

NOTE: The list is NOT exclusive (3 INTESTATE SUCCESSION VS.

TOLENTINO, supra at 428).
COMPULSORY OR FORCED
A mistake in the name of the thing bequeathed SUCCESSION
or devised, is of no consequence, if it is possible
to identify the thing intended by the testator
(CIVIL CODE, Art. 958).

A disposition made in general terms in tavor of

the testator’s relatives shall be understood to be Founded on provisions | Obligatory, regardless of
in favor of those nearest in degree (CIVIL of law as expressing | the decedent's desires or
CODE, Art. 959). the presumed will of | wishes
the decedent
“Relatives” must be within the 5M degree, since
persons farther than this are no longer Suppietory to testate | Takes place whether the
considered relatives. It is evident that relatives succession and takes | deceased has left a will
by affinity are excluded (3 PARAS supra at 453), place only in default of | or not and is therefore
the latter superior to and
independent of
testamentary succession
LEGAL OR INTESTATE
Suppletory to and | Superior to and
SUCCESSION takes place only in|independent of teslate
(ARTS. 960-1014)" | default
succession
of estate | succession

‘Iheiheirs. are called | Heirs are called

legal or intestate heirs, compulsory heirs and
LEGAL OR INTESTATE SUCCESSION but they ‘fare not | they are all legal heirs
A mode of transmission mortis causa which takes * necessarily ©
place in the absence of the expressed will of the compulsory heirs (e.g.
decedent embodied in a testament (3 TOLENTINO, brothers:and sisters)
supra at 431).
(OE LEO cession, supra at 488-489;
+ CAGUIOA, ‘Comm ents and Cases on Civil Law, p.
CHARACTERISTICS: - 346 [hereinafter CAGUIOA, Civil Law]).
1. Legal
— because it takes effect by operation of law. s of Intestacy: (SWIPER-P2AIR)
onsfulfiiment of Suspensive condition
2. Intestate ; - attached to the institution of heir;
" — because it takes place in the absenceor in 2. If aperson dies without a Will, or with a void will,
default of a last will of a decedent (JURADO, or one which has subsequently lost its validity:
Succession, supra at 377), 3. incapacity of instituted heir;
4. Predecease of the instituted heir;
BASIS: The law has put itself in the place of the S$. Expiration of term or period of institution;
deceased and made what it presumes he would 6. Repudiation by the instituted heir; }
have done if he had been able to express his will. it 7. Partial institution of heir, in which case, intestacy
has made the presumed will of the deceased the takes place as to the undisposed portion (mixed
basis of intestate succession, taking into succession);
consideration human affection or love and blood 8. Preterition, in which case intestacy may be total
relationship (3 TOLENTINO, supra at 431-432). or partial depending on whether or not there are
legacies/devises;
9. Absence of an instituted of heir:
10. Non-compliance or Impossibility of compliance
with the will; and &
11. Fulfilment of Resolutory condition (CIVIL
“TO

CODE, Art. 960; JURADO, Succession, supra at

378-379). 3 /)
BN TTI
QO
=o

2)
 SUCCESSION
"Civil Law

In all cases, where there has been an institution ot As a general rule, nephews and nieces arg
heirs, foliow the (1.8.R.A.L.) order: excluded by a brother, but such exclusion is
1. If the Institution fails, Substitution occurs. nullified by representation. Thus if the decedent
2. ff there is no substitute, the right of is survived by his brother, X, and his nephews,
Representation applies in the direct descending A and B, children of a deceased brother, Y, such
line to the legitime if the vacancy is caused by nephews shall still participate in the succession
predecease, incapacity, or disinheritance. by right of representation (/d. at 387). )
The right of Accretion applies to the free portion
when the requisites in Art. 1016 are present. Rule of Equal Division
If there is no substitute, and the right of - Relatives in the same degree shall inherit in
representation or accretion does not apply, the equal shares (CIVIL CODE, Art. 962).
rules on Intestate succession shail take over.
EXCEPTIONS:
RULES ON INTESTATE SUCCESSION: a. Division in the ascending line (between
paternal and maternal grandparents);
1. Rule of Preference Between Lines
b. Division among brothers and sisters, some
Those in the direct descending line shall exclude
of whom are of the full and others of half-
those in the direct ascending and collateral blood;
lines, and those in the direct ascending line
c. Division in cases where the right of
shall, in turn, exclude those in the collateral line
representation takes place; and
(Id. at 380). th Division between legitimate and illegitimate
children (DE LEON, Succession, supra at
Rule of Proximity 497). .
The relative nearest in degree exclides. the’
more distant ones, saving. the. right of _... ; NOTE: “This “rule is subject to the rule of
representation when it properly: takes place (JURADO,
preferénce. "between lines
(CIVIL CODE, Ant. 962, pari). . 7 |
Succession; supra at 381).

This rule presupposes that all of the: relatives stration:

belong to the same line /[Link] subordinated to the
rule of preference between lines (e.g., although
the son and the father of the decedent are both
one (1) degree removed fron the latter, [Link]...
shall exclude the father) (JURADO, Succession; B
supra at 381).

Rule of Representation,
vD ¥'\
ea]

pr
it modifies the Rule of Proximity. The more ;
distant relatives belonging to the same class as
are raised. fo the place x is, ¢“survived by his son, A, and his
the person represented
‘grandchildren, D, E and F. D is the child of a
and degree of such person and dcguife the
rights which the latter would have acquired if he. . R déceased son of X (B); E and F are the children
of another deceased son of (C).
were living or if he could have inherited (Id. at
389).
It is clear that A shall inherit in his own right,
while the grandchildren shall inherit by right of
it is the means by which the descendants of a
of the latter because of prior representation. D shall receive the share that
child, in default
would have gone to his father if the latter were
death, disinheritance, or incapacity, can take his
alive; E and F shall also receive the share that
degree or place. It is superior to right of accretion
would have gone to their father if the latter were
(id).
also alive. Hence, although they are all two
llustration: If the decedent is survived by his degrees removed from the decedent, D shall
son, A, and by his grandchildren, C and D, receive twice as much as either E or F (Id. at
children of a deceased, or incapacitated, or 382-383).
disinherited child, B, under the law, C and D are
not excluded by A in the succession in spite of
the rule of proximity, because, by right of
representation, they are raised to the place and
degree of their deceasad or incapacitated, ar
disinherited father.
 2078081 Epi

MEMGURY AID
San Beda University College of taw - RGCT Bar Oparations Center

5. Rule of Barrier between the Legitimate incapacitated heir or heirs by right of accretion
Family and the lllegitimate Family (iron (CIVIL CODE, Art. 968).
Curtain Rule)
EXCEPTION: If the incapacitated heir happens to be
The illegitimate family cannot inherit by intestate
a child or descendant of the decedent and he has
succession from the legitimate family and vice—
children or descendants of his own, then the share
versa (CIVIL CODE, Art. 992).
which is rendered vacant by reason of incapacity
shall pass to such children or descendants by right
6. Rule of Double Share for Full Blood
of representation (JURADQ, Succession, supra at
Coliaterals 386).
Should brothers and sisters of the full blood
survive together with brothers and sisters of the
half blood, the former shall be entitled to a share
REPUDIATION
double that of the latter (CIVIL CODE, Ar. 1. if by one or some of the relatives: his/their
1006). portion shall accrue to the others of the same
degree, save the right of representation when it
Children of brothers and sisters of the half-blood should take place (CIVIL CODE, Art. 968).
shall succeed per capita or per stirpes, in
accordance with the rules laid down for brothers 2. Wf by all of the relatives: those of the following
and sisters of the full blood (CIVIL CODE, Art. degree shall inherit in their own right. The
1008). inheritance shalt be distributed among them per
capita (CIVIL CODE, Art. 969).
7. Rule of Division of Line
Decedent is survived by two (2) grandparents Z: NOTE: In both instances, the right of representation
(GP) in the paternal line and one (1) GP-in: "cannot be applied (JURADO, Succession, supra at
maternal, the inheritance shall be divided one 386).
half (14) to GPs in the paternal line, while one.”
half {14} to GP in the maternal line (CIVIL: CODE, ‘REASON: An heir who repudiates his inheritance
Art. 987). may not be Tepresented (JURADO, Succession,
supra at 386).
RULES ON RELATIONSHIP: lHustration (DE (EON, Succession, supra at 505):
1. Number of generations determines proximity;
2. Each generation forms a degree;
3. A series of degrees forms a line;
4. Aline may be direct or collateral;.
a. Direct Line
Constituted by the series of degrees. among
ascendants and descendants (ascending
and descending).
b. Collateral Line |
A, B, and C are the legitimate children of D. Xand Y
Constituted by the series of degress among
are the legitimate children of A; W, the legitimate
persons who are not ascendants or
child of B; and Z, the legitimate child of C. The value
descendants, but who come from a common
of the hereditary estate is P120,000.
ancestor.
1. If only B repudiates: A and C will get P60,000
5. Full blood (same father and mother) and half- each. W is excluded because there is no right of
blood (only one of either parent is the same);
representation in case of repudiation (CIVIL
and (CIVIL CODE, Arts. 963 — 967). CODE, Art. 977). X and Y are excluded by A,
6. Inlegal and intestate succession, the adopter(s) -and Z by C, because the nearer in degree
and the adoptee shall have reciprocal rights of
exclude the more distant (CIVIL CODE, Art.
succession without distinction from legitimate
962).
filiation. However, if the adoptee and his/her
biological parent(s) had left a will, the law on
2. A,B, and C repudiate the inheritance: There gh
Oo
testamentary succession shall govern (RA. being no right of representation, the estate will
8552, Sec. 18). .
be divided among the four grandchildren
P30,000 each in their own right (CIVIL COLE, 172)
INCAPACITY Art. 977). BD
‘GENERAL RULE: The share or shares which are wl
Q
Oo
rendered vacant shall pass to the co-heirs of the
bm J

CU
 SUCCESSION
"Civil Law

3. HA B, and C are all incapacitated or decedent by right of representation (JURADO,

predeceased: The grandchildren will inherit by Succession, supra at 390).
right of representation and not in their own right.
Hence, X and Y will each get P20,000. W gats NOTE: The subrogation or the representation
P40,000 and Z gets P40,000. (CIVIL CODE, Art. obtains degree by degree, the inferior one
974 and Ant. 982). representing the relative immediately higher in
degree. No jump is made.
RIGHT OF ACCRETION
If there are several relatives of the same degree, and There is transmission -only with respect to
one or some of them are unwilling or incapacitated inheritance conferred by law.
to succeed, his portion shall accrue to the others of
the same degree, save the rightof representation In testamentary succession, it takes place only with
when it should take place (CIVIL CODE, Art. 966). respect to the legitime (JURADO, Succession, supra
at 395).
Hustration (DE LEON, Succession, supra at 503):
D WHEN REPRESENTATION TAKES
p TY TT
PLACE: (PID)
Predecease (testate and intestate);

¥y
- , Incapacity (testate and intestate); and
3... Disinheritance (teslate succession) (JURADO,
Succession, supra at 390).

A, B, and C are legitimate children of D. X and Y-4fe In testamentary: succession, since a vacancy in the
‘A's legitimate children. The valug of, the,e hefeditary ws inheritance occurs, the children or descendants of
estate is P60,000. the person represented are called to succeed by
right of: representation. The person represented
If A is incapacitated: A's share P2000 shall must bea compulsory heir of the testator in the direct
accrue to B and C unless‘a substitute has been descending line. (JURADO, Succession, supra at
appointed by D in which case, tHe substitute shall get 390)
P10,000, A’s share of the frée portion. Hence, B and
C will each get P20,000 in his own: ght and, P5, 000 in legal'er intestate succession, the basis, like that
by virtue of accretion. pk of other-rights of succession which take effect by
aperation of law,’ 1s sthe presumed will of the
A right created by fiction of aw, by Yyirtue of which decedent’ (JURADO, Succession, supra at p. 391)
the representative is raised to the plade and degree
of the person represented, [Link], the rights-- _ CHARACTERISTICS:
which the latter would have if he were [Link]-he - / 1. [Link]"a right of subrogation;
could have inherited (CIVIL CODE, Art. 970). 2:+It is an exception to the rule on proximity and
+ equal division among relatives of the same class
By virtue of this right, the relative nearestin degree and-degree;
does not always exclude the more remote ones - 3. "The representative iss called to the succession by
(JURADO, Succession, supra at 389). the law and not by the person represented;
4. The representative succeeds the decedent not
The representative does not succeed the person the person represented;
represented but the one whom the person 5. The representative must himself be capable of
represented would have succeeded (JURADO, inheriting from the deceased (3 PARAS, supra
Succession, supra at 390). at 477)
6. Iltcan only take place when there is a vacancy in
CONSEQUENCES: the inheritance brought about by either
1. Representative must be capable of succeeding predecease, or incapacity, or disinheritance of
the decedent; an heir; and
2. Even if the representative is incapable of 7. The right can be exercised only by the
succeeding the person represented, he can still grandchildren or descendants of the decedent
inherit by right of representation so long as he is (JURADO, Succession, supra at 389-390).
capable of succeeding the decedent; and
3. Even if the representative had repudiated his REPRESENTATION IN DIRECT
inheritance coming from the person DESCENDING LINE
represented, he can still inherit from the It takes place in the direct descending line, but never
in the ascending fine (CIVIL CODE, Art. 972).
 MEMORY AID
San Beds University Collage of Lew - RGCT Bar Operations Center

* Occurs in the Following Cases: The right of representation does not take place in the
1. Children concur with grandchildren, the latter instant case. In the collateral line, representation
being the [Link] other children who died takes place only in favor of the children of brothers
before the decedent or who are incapable of and sisters, whether they be of the full or haif blood
succeeding the decedent; (CIVIL CODE, Art. 972), and only if they survive with
2. All children are dead or are all incapable of at least one uncle or aunt who is a brother or sister
succeeding the decedent and grandchildren of the decedent (CIVIL CODE, Art. 975). Both
concur with great-grandchildren, the latter being conditions are not present here.
the children of other grandchildren who died
before the decedent or who are incapable of Fis a grandnephew of the decedent C, not a
succeeding the decedent; and nephew. He concurs with a nephew of the decedent,
3. All children are dead or are all incapable of not with a brother or sister. Therefore, the only way
succeeding the decedent leaving children or by which he can inherit would be in his own right.
descendants of the same degree (JURADO, Unfortunately for him, under the principle of
Succession, supra at 392). proximity recognized in Art. 962, he is excluded by E
(JURADO, Succession supra at p. 393).
NOTE: in the descending line, the right of
representation is unlimited with regard to the
REPRESENTATION BY ILLEGITIMATES
descendants .who may succeed (3 TOLENTINO,
By virtue of Arts. 989 and 990, iltegitimate child can
Supra at 450).
represent only when the parent represented is an

REPRESENTATION IN COLLATERAL illegitimate child of the decedent (the representative,

the person represented, and the decedent are all
LINE related to each other by illegitimate filiation
An exceptional case where the right does not take - (JURADO, Succession, supra at 417).
place in the direct descending line but in the
collateral line in favor of childrén of brothers and descendant of a legitimate child
sisters of the decedent, whether they may be ‘of full cannot rapresent the latler for Article 992 prevents
blood or half-blood (JURADO, Succession, supra at i intestate sugeession betwesn an illegitimate child
392). . and the legitimate relatives of his father or mother
(DE LEON; Succession, Supra at 971).
LIMITATIONS:
The right can be exercised arly by. nephews and REPRESENTATION IN ADOPTION
nieces of the decedent, whether they, be of the: L : Adopted child succeeds to the
full blood or half-blood; property ofthe “adopter in the same manner as a
2. The right can be exercised by the nephews or legitimate child.
© nieces of the decedent if they will concur. with at
least one brother or sister of the decedent (CIVIL . gopting parent should die before the adopted
CODE, Art. 975); child, the latter cannot represent the former in the
3. Hthe nephews and nieces are the only: survivors, inheritance from the parents or ascendants of the
they shall inherit in their own right and-fiot by adopter
right of representation (CIVIL CODE, Art. 972);
and The adopted child is not related to the parents or
4. Theright is possible only in intestate succession ascendants of the adopter. Becausa the filiation
(JURADO, Succession, supra at 392-393). created by fiction of law is exclusively between the
5. The right cannot be exercised by grandnephews adopter and the adopted (3 TOLENTING, supra at
and grandnieces (Delgado Vda. De Dela Rosa 448).
vs. Heirs of Marciana Rustia, G.R. No. 155733,
January 27, 2006). The legitimate children and descendants of the
adopted child cannot represent him in the
llustration: A and B are C’s brothers. D is the child succession to the estate of the adopting parent (qd.
of A, and E at 448-449).
of B, while F is the child of D. C died without leaving
a will. A, B and D are likewise dead. May F inherit EXCEPTIONS (CIVIL CODE, Arts. 971 And 973): a
from C? 1. An adopted cannot inherit from the legitimate
parents or ascendants of the adopter either by
Answer: F cannot inherit from C. True, he is a fourth representation or in his own right; and LU)
73
degree relative by blood of the decedent, but he is 2. The legitimate children or descendants of the
excluded by E, a nephew, and therefore, a third adopted cannot also inherit from the adopter
degree relative by blood of said decedent. either by representation or in their own right (/d. LO
at 449). LO
=)
2)
 SUCCESSION
Civil Law

The relationship established by adoption is limited when subsequently his grandfather dies (JURADO,
solely to the adopter and the adopted and does not Succession, supra 399-400).
extend 10 the relatives of the adopting parents or of
the adopted child except only as expressly provided REGULAR/NORMAL ORDER OF
for by law (Teotico v. Del Val, G.R. No. L-18753, SUCCESSION (DECEDENT IS A
March 26, 1965).
LEGITIMATE PERSON):
1. Legitimate children or descendants (LCD);
EFFECT UPON DIVISION OF ESTATE 2. Legitimate parents or ascendants (LPA);
Whenever there is succession by representation, the 3. legitimate children or descendants (ICD);
division of the estate shall be made per stirpes, in 4. Surviving spouse (SS);
such manner that the representatives shall not 5. Brothers and sisters, nephews and nieces
inherit more than what the person they represent (BS/NNY;
would irherit, if he were living or could inherit (CIVIL 6. Other collateral retatives within the 5th degree
CODE, Art. 974). (C5); and
7. State (JURADO, Succession, supra at 407).

IRREGULAR/ABNORMAL QRDER OF
SUCCESSION (DECEDENT IS AN
The representative | He acquires all of the
acquires all of the rights | rights which the person
ILLEGITIMATE PERSON):
which the person | represented had with 1. - Legitimate children or descendants {LCD};
represented had with | respect to his entire 2 liegitimate children or descendants (ICD);
respect to his legitime. | legal portion. 3. Negitimate parents (IP),
4. Sumviving spouse (SS);
(JURADO, Succession, supra at 395) 5. Brothers ‘and “sisters, nephews and nieces
© (BSINN); and
SUCCESSION BY NEPHEWS: AND 6. State (Id."at 401-402).
NIECES
When children of one or mare brothers or ‘sisters of The order of intestate succession is based both on
the deceased survive, they shall: inhefit from the the principle of exclusion and the principle’ of
latter by representation, if they survive with their concurrence (Id. af 403}.
uncles or aunts. But if they alone survive, they shall
inherit in equal portions (CIVIL CODE, Art.-975). PRINCIPLE OF EXCLUSION
Where nephews or nieces concur with their uncles The heirs higher i in the order of succession exclude
or aunt, the former inherit by right of representation. those who were lower in that order of succession,
{per stirpes), while the latter in-their own right (per except thatwhen the latter are compulsory heirs they
capita) (DE LEON, Succession at 512). preservé their rights to legitime (3 TOLENTINO,
[Link] 457):
Where nephews or nieces alone survive, without any
uncle or aunt, they inherit in their own right, “and The principle of exclusion is still applied literally to
therefore, the division among them is per capita (Id). . the" ‘case of parents or ascendants, collateral
relatives, and the State. in the case of others, the
principle of concurrence applies (JURADO,
Succession, supra at 403).
Succession is by group, Succession is by head
with all those in the or one’s own rights, with PRINCIPLE OF CONCURRENCE
same degree within the descendants in the IInder the principle of concurrence, the illegitimate
group inheriting in equal same degree inheriting children and the surviving spouse, who are not only
shares. equally. legal or intestate heirs but are also primary
compulsory heirs, even when they concur with
(ld. at 511) legitimate children and descendants or with
legitimate parents and ascendants, are not only
REPUDIATION BY REPRESENTATIVE entitled to their legitime, but are also given a share
A person may represent him whose inheritance he in the disposable free portion (/d.).
has renounced (CIVIL CODE, Art. 876).
Illustration: X is the testator: He has A & B as his
If a child renounces or repudiates his inheritance legitimate children and C as an illegitimate child. His
when his father died, he may still represent the latter, net estate is P80,000. —
 MEMORY AID
San Bada University College of Law - RGCT Bar Operations Center

Following the rules on intestate succession, A & B

shall jointly receive half of the estate which is
P40,600 so each will get P20,000. C, on the other
hand; being an illegitimate child shall only receive insufficient,
P10,000. There shall be an excess of P30,000. How reduction must
shall the P30, 000 be divided? be made
. according to
1. Exclusion theory: The P30,000 shall be divided . tha rules on
by A & B only. legittme. The
2. Concurrence theory: The P30,000 shall be legitime of LCD
divided among A, B & C. and SS shall
' always be first
TABLE OF INTESTATE SHARES satisfied in
preference to
that of the ICD.

Any class | Entire estate © Rule of Proximity NOTE: The

alone {Art. 962 of the legitime of each
Civil Code) illegitimate
— : child shall
LCD; Entire estate; Rule of Proximity . consist of 1/2 of
LPA Excluded (Art. 962 of the or the legitime of
: Civil Code) : 5 a legitimate
. child (Art. 178,
1LCD; 1/2, (Arcenas v. Cinco, | = 7; Family Code)
55 112 G.R. No. L-29288, me
November . 29, or “mitre
| First, satisfy the | Concurrence or
1976) : | LCD; ‘J legitime. In | Exclusion Theory
- — g 58S; {dase of excess
2 or more | Consider SS as | Concurrence =. lich "in. the estate,
LCD; 1 LCD, and|Theory : distribute such
SS then divide | 5 i . in the
) estate by total | i 5. ’ fop ion
number. ; : in

LPA; 112; Art. 997 of the accordance

with the
SS Vz EE _ | CMit Code © | concurrence
LPA; 112; Art 991 of the theory.
ICD 172 Civil Code
ICD: 12: A. 998 of the 1. DESCENDING DIRECT LINE
SS 142 Civil Code Includes Legitimate CD, Legitimated CD and
— adopted children (JURADO, Succession, supra
LPA; 1/2; Art. 1000 of the at 404).
SS; 1/4; Civil Code
Co 1/4 : Legitimate children from the first and second
marriages are entitled to inherit, and failure to
IP; 1/2; The law is silent. include anyone of them makes the extrajudicial
SS 1/2 Apply settlement void (Neri v. Heirs of Uy, G.R. No.
concurrence 194366; October 10, 2012).
i theory (JURADO,
Succession, Rules of Division oy
supra at 410). if the decedent is survived by legitimate children Lad
ro of descendants, the rules are as follows: pra
SS: - 172; Art. 1001 of the a. I all of the survivors are legitimate children, (@]
BS/NN 172 Civil Code such children shall inherit in their own right. 7) B
1 LCD; First, satisfy the | Concurrence or Consequenty. he inheritance shall be nN
SS; legitime. If | Exclusion Theory shares 9 Pp p a i
ICD estate would be he Qo
LQ=

I »
 SUCCESSION
Civil Law

b. If some of the survivors are legitimate TABLE OF INTESTATE SHARES IN THE

children and the others are legitimate
descendants of other legitimate children
ESTATE OF AN ADOPT
who died before the decedent, the former
shall inherit in their own right and the latter
shall inherit by right of representation. LCD; Ordinary rules of
Consequently, the inheritance shall be ICD; intestate succession.
divided among them per stirpes. SS 2:21
c. If all of the survivors are legitimate
LPA/IP; 1/2;
grandchildren, such grandchildren shall
Adopter 172
inherit by right of representation. Similarly, if
some of the survivors are legitimate SS; ) 142;
grandchildren and the others are legitimate Adoplers 1/2
children or descendants of other legitimate
grandchildren who died before or who are Ich; 1/2;
incapable of succeeding the decedent, such Adopters 1/2
_ grandchildren and descendants shalf inherit
by right of representation (JURADO, ICD; 1/3;
Succession, supra at 405-406). SS; 1/3;
| Adopters 1/3
Hustration (DE LEON, Succession, supra at 521): Tr
Adopters alone “| Entire
SRE " Ordinary rules of:
— — Coltateral alone g intestate succession.
(FAMILY CODE, Art, 190).
E FG NOTE: Art. 984: of the Civil Code has been
[Link] Art.2190 of the Family Code. Art.
Lm 190 of the Family Gode applies only in legal or
intestate succession (DE LEON, Succession,
Ais the decedent. B, C, D are his children. E.F.G, supra at 523-524).
H and J are the grandchildres. K [Link] J's:
children. Estate is P900,000. B;%C, D, and J 2. ASCENDING DIRECT LINE
predeceased A. Divide the property. - In default of legitimate children and descendants
of the deceased, his parents and ascendants
Answer: E, F and G will divide B's share ~of Lo shaliinherit from him, to. the exclusion of
P300,000 equally. Each will get P100,000: collateratrelatives (CIVIL CODE, Art. 985).

H will get C's share of P300,000. ne The share of the parents or ascendants may be
subject to reserva troncal in cases where the
K, L, and M will divide D's share of P300,000, as requisites are present.
follows: K —- P150,000, and L and M — P75,000 each.
Rules of Division
a. Adopted Children a. In default of the mother and father, the rule
An adopted child succeeds to the property of the of proximity shall be applied. In other words,
adopting parents in the same manner as a the ascendanis nearest in degree shall
legitimate child (CIVIL CODE, Art. 979). inherit. .
b. Should there be more than one equal
An adopted child is entitled to all the rights and degree belonging to the same line, they
obligations provided by law to a legitimate shall divide the inheritance per capita
sons/daughters born to the adopters without (JURADO, Succession, supra at 415).
discrimination of any kind (R.A. No. 8552 or the
Domestic Adoption Act of 1998, Sec. 17). Hlustration: If descendant is survived only by A,
paternal grandfather, and B and C, maternal
The adopter(s) and the adoptee shall have grandparents, »: of the entire inheritance is
reciprocal rights of succession. without given to A, while the other half shall be given to
distinction from legitimate filiation in legal and B and €, which they shall divide per capita (Id.).
intestate succession (R.A. No. 8552 or the
Domestic Adoption Act of 1998, Sec. 18).
 MEMORY AID
Sar: Beda University College of Law - RGCT Bar Operations Center

3. ILLEGITIMATE CHILDREN b. E cannot represent B in the succession from

legitimate children exclude collaterals, in this A's estate (CIVIL CODE, Art. 992).
sense, they are superior to the surviving spouse ¢. Both F and G can represent C who is
(Id. at 416). illegitimate (CIVIL CODE, Art. 990).

Principle of Absolute Separation Between SURVIVING SPOUSE

the Legitimate Family and the lllegitimate He or she shall always inherit. The universal rule
Family (Barrier or Iron Curtain Rule) is that a legal heir who is also a primary
An illegitimate child has no right to inherit ah compulsory heir (surviving spouse) at the same
intestato from the legitimate children and time is always entitled to the legitime which the
relatives of his father or mother; neither shall law has reserved (JURADO, Succession, supra
such legitimate children or relatives inherit in the at 426). -
same manner from the illegitimate child (CIVIL
CODE, Art. 992). Surviving spouse is placed in the same category
as each of the legitimate children state (id).
An impassable barrier exists separating or
dividing the members of legitimate family from TABLE OF SHARES (SURVIVING
those of the illegitimate family (JURADO,
Succession, supra at 419),
Ss
REASON: intervening antagonism and
incompatibility between members of the SS gets the same share
legitimate family and those of the legitimate LCD as that of each child
family (Id). (CIVIL CODE, Art. 996).

1. 8S: %
NOTE: Succession to the estate does not go
beyond the parents by nature (Id. at 422). 2. Parents/ascendants:
% (CIVIL CODE, Ari.

When the law speaks of brothers and ‘sisters, 997).

nephews and nieces, as legal heirs of an : 1. SS: 1
illegitimate child, it refers to illegitimate bréthers Sod . | 2. legitimate children
and sisters as well as the child. whether Co oor ICDs | = illegitimate
legitimate or illegitimate of ‘Such brothers and desceridants (whether children’s
sisters legitimate Ol descendants: Y
In default of brothers and sisters, nephews and
legitimate) (CIVIL CODE, Art
998). ' ’
nieces, the law does not go any farther, other TET -
collaterals are not allowed to inherit by intestate =F 1. LCDs: %
succession from the illegitimate child, the entire LCD/s and ICD/s or |2. SS:1LCD;
estate shall pass to the slate (HIRADO, their descendants | 3. ICD:
%2 of 1 LCD
Succession, supra at 425). (whether legitimate or
illegitimate) If only 1 LCD: [Link]
Wustration (DE LEON, Succession, supra at (CIVIL CODE, Art. 999).
533):
1. LRA: %
2. 88: Yi
LPA and IC 31D: % (CIVIL
CODE, Art. 1000).
Bleg.) — Tg fileg.) :
‘ 1. 8S: %
BS/NN 2. BS/NN: % (CIVIL
CODE, Art. 1001).

Cz
Dfleg.) Eile.) Flleg) Glifeg.)
In case of a legal separation, if the surviving

@@
spouse gave cause for the legal separation, he
or she shall not have any of the rights granted in
Band C predecease A, decedent. D, E, F, and the preceding articles (CIVIL CODE, Art. 1002).
G are the four grandchildren who survived.
w
Be;
a. D can represent his father B in the Hiustration: If the decedent, for instance, is
succession from X's estate. survived by his widow and four legitimate

@
 SUCCESSION
Civil Law

children, and the inheritance is P60,000, the lustration (JURADO, Succession, supra at
method of distribution would be merely to divide 448):
the PB60,000 by five. The result would be
P12,000 for each, of the survivors (JURADO,
Succession, supra at 426). WwW,

COLLATERAL RELATIVES
They can only refer to those within the fifth
degree (CIVIL CODE, Art. 1010).

Rule of Proximity (CIVIL CODE, Art. 962).

GENERAL RULE: Where two (2) or more D E FG
collaterals concur in the succession, the nearest
in degree shall exclude the more remote one. X is the decedent who is survived by:
a. A, a brother of the full blood;
EXCEPTION: Right of Representation in the b. D and E, nephews of the full blood, children of
collateral line is recognized but extended only to B, another brother of the full hiood who had
nephews and nieces. predeceased X; and
c. F and G, nephews of the half blood, children
Rule of Preference of C, a brother of haif-blcod, who also had
Where survivors are of the same degree, the predeceased X.
Rule of Preference by reason of refationship by
the whole bload is also recognized: but can be The decedent's estate is P25.000. How shall it
applied only to brothers and sisters or nephews be distributed?
and nieces and not to other collaterals
(JURADQ, Succession, Supra at 445). This Answer: TheP25,000 shall be divided into three
means that should brothers and sisters of the full shares in the proportion of [Link] (CIVIL CODE,
blood survive together with brothers and sisters Arts. 975, 7005, arid 1006).
of the half blood, the former-shall be entitled to.a
share doubie that of the latter emi CODE, Art. A shall be erititled to 2/6 of P25,000, or P10,000;
1006). D and E shail also be entitied to 2/5 of P25,000
or:P10,000, by right of representation; while F.
Should brothers and sisters survive together and G shallbe entitled to only 1/5, or P5,000, by
with nephew and nieces,"'who are children of the right of representation.
decedent's brothers and sisters [Link] full blood,
the former shall inherit per-capita, and the latter Consequently, ‘the distribution shall be as
per stipes (CIVIL CODE, Art, 1005). + follows:
A.=P10,000, in his own right
If the only survivors are nephews and nieces of D = P5,000, by right of representation
the full or of the half blood, they shalt succeed to E =P5,000, by right of representation
the entire inheritance in their own right. The rule F = P2,500, by right of representation
of preference by reason of blood relationship G = P2,500, by right of representation
may be applied (JURADO, Succession, supra at P25,000
449). Which alsc means that nephews and
nieces of the full blood shall be entitled to a Should there be neither brothers and sisters, nor
share double that of the haif-blood (CIVIL children of brothers and sisters, the other
CODE, Art. 1008). collateral relatives shall succeed to the estate.
They shall succeed without distinction of lines or
preference among them by reason of
relationship by the whole blood (CIVIL CODE,
Art. 1009).

STATE
In default of LCD, PA, ICD, SS and collateral
relatives within the 5 degree (CIVIL CODE, Ant.
1003).
In order that the State may take possession of
the property of the decedent, the procedure for
 MEMORY AID
San Beda University College of Law - RGCT Bar Operations Certs!

Escheat (RULES OF COURT, Rule 81) must be Within five years from the date of the judgment
observed. (RULES OF COURT, Rule 91, Sec. 4}.

Escheat CARDINAL PRINCIPLES OF INTESTATE

A proceeding, unlike that of succession or SUCCESSION
assignment, whereby the state, by virtue of its 1. Even if there is an order of intestate succession,
sovereignty, steps in and claims the real or the Compulsory Heirs (CH) are never excluded.
personal property of a person who dies intestate 2. Right of Representation (RR) in the collateral
leaving no heir (Republic v. CA and Solano, G.R. line occurs only in intestate succession; never in
No. 143483, Janvary 31, 2002). testamentary succession because a voluntary
heir cannot be represented as provided in Art.
Requisites for Escheat: (IP-No) 856 (1).
a. The decedent died Intestate; The intestate shares are either equal to or
3.
b. He dies seized of real and/or personal greater than the legitime.
property located in the Philippines; and GENERAL RULE: Grandchildren always inherit
4.
¢. He leaves no heir or person entitled to such by RR, provided representation is proper.
real and personal property (JURADO, all the children
EXCEPTION: Whenever
Succession, supra at 453-454). repudiate, the grandchildren inherit in their own
right because RR would not be proper.
PURPOSE: In the absence of a lawful owner, a
property is claimed by the state to forestall an * Nephews and nieces inherit either by RR or in
open invitation to self-service by the first their Own Right (OR).
comers” {(RCBC v. Hi-Tri Development. a. RR: when they concur with aunts and uncles
Corporation, G.R. No. 192413, June 13, 2012). (provided that RR is proper).
b. OR:when they do not concur with aunts and
Assignment of Property .
If personal property, it is the city or municipalifly
Lipundes.
where the deceased last resided in the Philippines 6. ICD of legitimates cannot represent because of
(CIVIL CODE, Art. 1013). the but both
bayrigr, the ICD and LCD of
ilegitimates can.
if real property, it is the city or municipality iin which ‘5 7. Theré can be reserva troncal in intestate
the property is situated (CIVIL CODE, An, 1013) succession
cr..can represent, but cannot be
EXCEPTION: if the deceased never resided i in the represented (CIVIL CODE, Art. 976).
Philippines — respective cities or. municipalities ’ A person who cannot represent a near relative
where the real or personal property is located (civic annot also represent a relative farther in degree
CODE, Art. 1013). BAS, supra at 531-533).

NOTE: Such estate shall be for the benefit of oitilic

schools and public charitable institutions. and
centers in such municipalities or cities. The court
shall distribute the estate as the respective needs of
MIXED SUCCESSION
each beneficiary may warrant (CIVIL CODE, Art. AND PARTIAL
1013).
INTESTACY
The court, at the instance of an interested party, or
on its own motion, may order the establishment of a
permanent trust, so that only the income from the
property shall be used (CIVIL CODE, Art. 1013). MIXED SUCCESSION
Succession that is effected partly by will and partly
When to File a Claim by operation of law (CIVIL CODE, Art. 780).
A person who is legally entitled to the estate of the
deceased may, within five years from the date the
property was delivered to the State, file a claim for
In other words, if the testator makes
does not dispose all of his property, the resultis what
a will which
oz
the possession of the same, or if sold, the city or is known as mixed succession (JURADO, Q
municipality shall be accountable to him for such part Succession, supra at 16). 73
of the proceeds as may not have been lawfully spent 7)w
(CIVIL CODE, Art. 1014). The rules of legal intestate succession shall be
applied with respect to those properties not disposed CQ
of (Id. at 378). 0
ee
k7)
 SUCCESSION
Civil Law

Rules: devise, or to the same portion thereof, pro

1. The legitimes of compulsory heirs shall be indiviso; and
applied even in mixed succession. One who has b. There must be a Vacancy in the inheritance,
compulsory. heirs may dispose of his estate legacy or devise (caused by predecease,
provided he does not contravene the provisions incapacity, repudiation, non-fulfillment of
of this code with regard to the legitime of said suspensive condition, or void or ineffective
heirs (CIVIL CODE, Art. 842, par. 2). testamentary dispositions) (CIVIL CODE,
2. In case the testamentary disposition reduces the Art. 1016; JURADO, Succession, supra-at
legitime, the reduction shall be borne pro rata by 464).
all intestate heirs from their shares in the
disposable portion but never from the legitimes Requisites of Art. 10186, No. 1 (Pro Indiviso):
(3 PARAS, supra at 479). {UPA)
a. Unity in the object, that is, a single thing
lilustration: whether it be an inheritance, a portion of an
If among the concurring intestate heirs there are inheritance, or a specific thing;
compulsory heirs whose legal or intestate b. Piurality in the subject matter, that is,
portions exceed their respective legitimes, then several persons, heirs or legatees called to
the amount of the testamentary disposition must be that single thing; and
deducted from the disposable free portion to be c. Absence of any designation as to the share
borne by all the intestate heirs in the proportions that of each in the thing (CAGUIOA, Civil Law,
they are entitled to receive from such disposable fre@ w+. Supra at 413)
portion as intestate heirs. :
How [Link] Accretion:
If the intestate share of a compulsory heir is ‘a. By expressly designating a substitute; and
equal to his legitime, then the amount of the b. ‘By “expressly providing that although
testamentary disposition must be deducted only aceretion ‘may take. place, decedent does
from the intestate shares of the. others, in the not wat accretion to occur (3 PARAS, -
proportions stated above. supra‘at-537).’,

If the testamentary dispositions consume the NOTE: Accretionis a right (CIVIL CODE, Art,
entire disposable free portion, then the'intestate 1015), not an-obligation, and may therefore be
heirs who are compulsory ‘héirs will get only their acegpted orrepudiated by those entitled. This is
legitime, and those who are hot Gompulsory heirs wil} true-in. both testate:and legal succession (Ynza
get nothing. v.'Rodriguez, et" ak. G.R. No. L-6395, June 30,
1954).

Effects of Predecease, Incapacity,

PROVISIONS COMMON Disinheritance, - or Repudiation in both
--Testamentary-and Intestate Succession
TO INTESTATE AND
TESTATE SUCCESSION Legend:
‘RR — Right of Representation
(ARTS. 1015-1105) A -- Right of Accretion
IS — Intestate Succession
S -- Substitution

1. RIGHT OF ACCRETION
When two (2) or more persons are callad to the
same inheritance, devise or legacy, the part
assigned to the one who renounces or cannot
receive his share, or who died before the
testator, is added or incorporated to that of his
co-heirs, co-devisees, or co-legatees (CIVIL
CODE, Art. 1015).

Requisites of Right of Accretion: (2V)

a. Two (2}or more persons must have been
called to the same inheritance, legacy or
 CADDIE rst

MEMORY AID
Sar Beda University Coliege of Law ~ RGCT Bar Operations Center

Hustration:
Testate Succession

PGF r

GF- =n Dee W

(JURADO, Succession, supra at 470). M AN

Summary of the Effects
a. Testamentary Succession
i. Legitime
(1) In case of predecease of an heir,
there is representation if there are
children or descendants; if none, the
others inherit in their own right. Decedent D who has an estate of P3,000,000 is
(2) In case of incapacity, results are the survived by:
same as in predecease. a. wife W;
(3) In case of disinheritance, results arg” b. children A, B, C;
the same as in predecease. “le. parg F and M;
(4) Incase of repudiation by an heir, the hia ate child IC, his child with girlfriend;
others inherit in their own right. and
it. Disposable free portion e. patgrmal grandfather and maternal
Accretion takes place when requisites in grandmother.
Art. 1016, Civil Code are present; if not, A has’chilgren, E and F while C has children, G,
the others inherit in their own right. H, and l. b instituted- A to 1/2, B to 1/4 and Cc to
portion).
b. Intestate Succession
i. In case of predecease,. there is Assuming that C died, in case of predecease, his
representation if there are children or share in the legitime will be given to G, H, | by
descendants; if none, the others inherit ight of representation.
in their own right.
ii. In case of incapacity, resuits are: the wil C’s share in the free portion be given to A
same as in predeceasc. and B by right of accretion?
ii. In case of repudiation, there is always
accretion (Id.). Answer: No. Art. 1016 requires that 2 or more
heirs must be called in the same inheritance pro
NOTE: Whether the succession is testamentary indiviso (jointly instituted). C’s share in the free
or intestate, if the right of accretion takes place, portion will go to D's legal heirs pursuant to Art.
the heirs to whom the vacant share or portion is 1022 of the Civil Code, which provides that in
assigned shall divide it in the same portion that testamentary succession, when the right of
they inherit (Id. at 468). accretion does not take place, the vacant portion
In testamentary succession, where the share of the instituted heirs, if no substitute has been
rendered vacant is the share of a compulsory designated, shall pass to the legal heirs of the
heirs, only that part of the share which is taken testator, who shall receive it with the same
from the disposable free portion shall pass to the charges and obligations.
co-heirs by right to accretion.

In intestate succession, the entire share which is

If C is incapacitated to succeed under Art. 1028 Zz
Oo
or 1027, to whom shall you give the 500k
rendered vacant shall pass to the co-heirs by legitime? Will it be givento G, H, 1? wn
right of accretion (/d. at 468-469). UN
~ Answer: No. C will still receive his legitime, if he ow
is incapacitated under Art. 1027 or 1028; he will Qo
only be rendered incapacitated as to the free 0
pen
»
 SUCCESSION
Civil Law

portion. The free portion shall be distributed (1) Testamentary disposition in favor of
pursuant to Art. 1022. associations for religious, scientific,
cultural, educational, or charitable
If the incapacity is under Art. 1032, his share will purposes (CIVIL CODE, Art. 1026).
now be given to G, H, | because unworthiness Testamentary disposition in favor of
now affects both the legitime and free portion. a church or denomination to which
the testator may belong for prayers
Intestate Succession or pious works (CIVIL CODE, Art.
1029).
Testamentary disposition in favor of
the poor in general (CIVIL CODE,
Art. 1030).
When the child although not yet born

I
IN
is already conceived at the time of
the death of the decedent and it is
born later under the conditions
prescribed in the Civil Code, Art. 41.

nm
ii. Those who cannot be identified
uncertain persons (Persona Incierta)
(CIVIL CODE, Art. 845).
+. fil. Those who are not permitted by law to
E F G H.-A
“inherit (CIVIL. CODE, Art. 1027, par. C,
No, 6).
Decedent D who has an estate of Ps, 000; 000 ig
survived by his wife W, children A, "B,C, and Relative Incapacity by reason of special
parents, F and M. A has children; & and. F while
relation:
C has children, G, H, and 1. i. Based on Undue Influence or
Interest: (PR-GAP)
If C repudiates, A and B will get 1.5M each by 1. Priest who heard the confession of
right of accretion. C, who repudiated, cannot be “the ‘testator during his last illness, or
represented (CIVIL CODE, Als, 687 and 977). the.» minister of the gospel who
extended spiritual aid to him during
if C predeceases, his share will go to G H, | by ‘[Link] period (CIVIL CODE Art.
right of representation {CIVIL CODE, Art, 968 1027, par. 1).
and 972).
Requisits: (EDI)
If | predeceases, his share will go t6.G andH by : “The will must have been
right of accretion (CIVIL CODE, Art. 968). Executed during the last iliness
and after the confession
Now for the ascending line, assiming this: {ime N because if it were before, the
that there is also paternal grandfather, GF sand reason for the incapacity does
maternal grandmother MGM. lf F predeceasés,, - not exist;
by right of accretion, b. That the testator Died of thé
illness wherein the confession
CAPACITY TO SUCCEED BY WILL was made even though there
OR INTESTACY should exist an interval
Requisites: (LE-Not-ID) between the confession and the .
a. The heir, legatee/devisee must be Living or death or that the death proceed
in Existence at the moment the succession from an accident which may or
opens; and may not proceed from said
b. He must not be Incapacitated . or illness; and
Disqualified by law to succeed (JURADO, c. That the disposition in the will
Succession, supra. at 481). should be In favor of said priest
or minister, his relative within
Kinds of Incapacity to Succeed: the fourth (4) degree or his
a. Absolute Incapacity- incapacitated to church (CAGUIOA, Civil Law,
succeed in any form. . supra at 425).
i. Those not living at the time of death,
except: The basis of disqualification is
the presumption that at the
MEMORY AID
San Beda University Colisge of Law - RGCT Bar Operations Center

threshold of death the testator Characteristics:

becomes an easy prey to the a. Possible only in testamentary
scheming priest or minister suecession;
(JURADO, -Succession, supra b. Relative in character; and
at 484). c¢. Partial, in the sense that if the heir
who is incapacitated or disqualified
According to Sanchez Roman, is a compulsory heir, only the free
should the testator recover from portion given to him is affected, but
his last illness and does not not his legitime (JURADO,
revoke the disposition, the Succession, supra at 483-484).
disposition is sfill invalid. The
only way to make it valid is to NOTE: The incapacity of the guardian
reproduce the invalid only exists prior to the rendition of final
disposition to a new will accounts and the approval thereof since
Contrary views, however, state the law wants to prevent the guardian
that if the testator fully from aspiring to the inheritance to cover
recovered from his last illness up any mismanagement during his
and there is sufficient time for guardianship. Therefore, the
him to revoke the will and yet he determining factor is the final approval
did not do so, the same shall be of the final accounts. If there is such
considered as valid (CAGUIOA, approval, the guardian is not
Civil Law, supra at 424). incapacitated but if there is no such
approval, the guardian is incapacitated
Relatives of such priest or minister. of (CAGUOIA, Civif Law, supra at 425).
the gospel within the 4th degree, the
church, order, chapter, community; 4, Attesting witness to the execution of a will,
organization orinstitution to which such ithe spouse, parents or children, or any one
priest or minister may belong (CIVIL claiming under such witness, spouse,
CODE, Art. 1027, par. 2). parenis; or children (CIVIL GODE, Art. 1027,
par. 4), "
The law does not include among the
persons disqualified the spouse of the . Such disqualification does not apply "if there
priest or minister (JURADO, g other competent withess” to the
Succession, supra at 485).

Guardian with respect to testamentary Physician, surgecn, nurse, health officer or

dispositions given by a ward in his favor druggist who took care of the testator during
before the final accounts” of the tislast lliness (CIVIL CODE, Art. 1027, par.
guardianship have been: approved, 5).
even if the testator should die after the
approval thereof; nevertheless, any The disqualification does not extend to the
provision made by the ward in favor of relatives of the physician or nurse, or to the
the guardian when the latter is his organization or institution to which such
ascendant, descendant, brother, sister, physician or-nurse may belong (JURADO,
or spouse, shall be valid (CIVIL CODE, Succession, supra at 486).
Art. 1027, par. 3).
Not applicable if thc one who took care of
Not applicable if the guardian is an the testator is his spouse, ascendant or
ascendant, descendant, brother, sister, descendant (Id.).
or spouse of the testator (JURADO,
Succession, supra at 485), i. Based on Morality or Public Policy
The provisions mentioned in Art. 739 of
Requisites: the Civil Code, concerning donation
a. The will was executed by the ward inter vivos shall apply lo testamentary ark
in favor of the guardian; and provisions (CIVIL CODE, Art. 1028).
+ Q °

b. It was executed before the final wv.

accounts of the guardianship have The following donations are VOID:
been approved; even if the testator
N72
(ACP) Ld
should die after the approval thereof
(3 PARAS, supra at 573).
(1) Those made in favor of a person LQ
with whom the testator was guilty of
QO
=
as
 SUCCESSION
Civil Law

Adultery or concubinage at the time Deaths occasioned by crime

of the making of the will (violent deaths) are prosecuted de
(Nepomuceno v. CA, G.R. No, L- oficio or at the instance of the
62952, October 9, 1985; Joaquino government, and thus no one is
v. Reyes, G.R. No. 154645, July required to make any accusation (3
13, 2004); TOLENTINO, supra at 529).

NOTE: Previous criminal conviction In this jurisdiction, there is no

is NOT necessary (JURADO, obligation imposed by the law to
Succession, supra at 487). make an accusation in such cases
(JURADO, Succession, supra at
2 Those made in consideration of a 482).
~—

Crime of which both the testator

and the beneficiary have been 5 Any person convicted of Adultery or

2
found guilty; and concubinage with the spouse of the
testator;
NOTE: Previous criminal conviction
is necessary (id.). The spouse is not included. The
only time the guilty spouse shall not
3 Those made in favor of a Public inherit is when the offended spouse
officer or his spouse, descendants act positively either by securing a
and ascendants, by reason of his - decree of legal separation or by
public office (CIVIL CODE, Ar, _disinheriting him or her (id.).
739).
AB Any person wha by Fraud, violence,

~~
Characteristics:/ ~w.. “FJ .irftimidation, or undue influence
1.) Possible only “in testamentary = should cause the testator to make a
succession; : i * will orto change one already made;
Relative in character; and —Ey) Any person who by the same
—
[NS

Partial, in the“senge that if the heir means: Prevents another from

who is incapacitated or disqualified making:a will, or from revoking orie
is a compulsory heir, only the free ‘already! made, or who supplants,
portion given tohim is affected, but ‘conceals, or alters the latter's will;
not his legitime (JURADO, “and
Succession, supra at. 484) ® Any person who Falsifies or forges
=

a supposed will of the decedent

Based on Acts "of Unworthiness (CIVIL CODE, Art. 1032).
(AFP) n

(1) Parents who have Abandoned their Characteristics:

children or induced thair dalghters (1) Based on offenses committed by
to lead a corrupt or immorat life, or the disqualified person against
attempted against their virtue; the decedent which renders him
(2 Any person who has been convicted unworthy to succeed:
—

of an Attempt against the life of the (2) Applicable BOTH in testamentary

testator, his/her Spouse, and legal succession; and
descendants or ascendants; 3 Although relative in character, it is
fuer

(3 ) Any person who has Accused the total in the sense that it extends
testator of a crime for which the law not only to the free portion but
prescribes imprisonment for 6 years also to the legitime (JURADO,
or more, if the accusation has been Succession, supra at 491).
found groundless;
(4 Any heir of full age who, having iv. By Operation of Law (LIP)
fas

knowledge of the violent death of the (1) Incapacity of the guilty spouse to
testator, should Fail to report it to an inherit from the innocent spouse if
officer of the law within a month, there is a decree of Legal
unless the authorities have already separation (FAMILY CODE, An.
taken action; this prohibition shall not 63, par.d);
apply to cases wherein, according to (2) Incapacity of Hegitimate children
law, there is no obligation to make an and legitimate relatives of the
accusation;
MEMORY AID
San Bawa University College of Law - RGGT Bar Operations Carrer

decedent to inherit from each

other (CIVIL CODE, Art. 892),
(3) Individuals, associations and Can take place in either Can take place only in
corporations not Permitted by law testamentary or testamentary
to inherit (CIVIL CODE, Art. 1027, intestate succession. succession.
par. 6).

Pardon of Acts of Unworthiness

Cannot be'revoked. Revoked when the |
Reconciliation between the testator and the testator revokes the will
offender will render the disinheritance
or the institution.
ineffective, and the heir will be restored to his
inheritance. But if the testator has not made an (JURADO, Succession, supra at 493-494).
express disinheritance, then the laws on
disinheritance cannot operate; the rules on Effect of Pardon
unworthiness must apply, and the capacity of The heir is restored to full capacity to succeed
the heir can be restored only by the means of the decedent, as if the cause of unworthiness
pardon (3 TOLENTINO, supra at 538). had never existed (DE LEON, Succession,
supra at 594).
Only the decedent himself can erase the effects
of acts of unworthiness (JURADO, Succession, Time to Determine the Capacity
supra at 493). GENERAL RULE: At the moment of the death
of the decedent.
The act of the decedent in pardoning an act of :
unworthiness must not be confused with, EXCEPTIONS:
reconciliation. The first is a unilateral act, while’
the second is a bilateral act requiring the
concurrence of the offender. Under the. Civil
Code, a subsequent reconciliation between the Under Art. 1032 of the Necessary to wait until
offender and the offended person deprives the Civit Codey’ © final judgment is
latter of the right to disinherit, and: renders 1. Par. (2) -Any person rendered.
ineffectual any disinheritance that may..have who > has * been
been made. lt cannot, however, erase the’
effects of an act of unworthiness. (Id: £494)...
life “of: the testator,
Executive clemency, or pardoriby the President his or her spouse,
does not erase the unworthiness of incapacity of descendants,
the heir (3 TOLENTINO, supra-iat 537; § ‘agcendants.
Valverde 450; 2 Camus 124). a CUPEFT(3) Any person
who has accused the
EXPRESS V. IMPLIED PARDON: testator of a crime for
MBLIE which the law
prescribes
imprisonment for 6
years or more, if the
accusation has been
Made by the execution Effected when testator found groundless
of a document or any makes a will instituting Par. (5) —Any person
writing in which the the unworthy heir with convicted of adultery
decedent condones the knowledge of the cause and concubinage
cause of incapacity. of incapacity. with the spouse of
the testator.
: =
Under Art. 1032 of the Necessary to wait for 1
Civil Code: month.
So
Par. (4) Any heir of full
[/) I

‘| age who, having wn:

knowledge of the violent 11]
death of the testator, Q
should fail to report it to
fg |
Un
 SUCCESSION
Civil Law

3. ACCEPTANCE AND REPUDIATION

OF INHERITANCE
ACCEPTANCE
an officer of the law
The act by virtue of which an heir, legatee or
within a month. |
devisee manifests his desire in accordance with
If the institution of the | Time of the compliance the formalities prescribed by law to succeed to
heirs, legacy or devise is | with the condition shall the inheritance, legacy or devise (JURADO,
conditional. be considered. Succession, supra at 501).
(JURADO, Succession, supra at 495-496). REPUDIATION
The act by virtue of which an heir, legatee or
Prescription: The action for a declaration of devisee manifests his desire in accordance with
incapacity and recovery of the inheritance, the formalities prescribed by law NOT to
devise or legacy shall be five (5) years from the succeed to the inheritance, legacy or devise
time the disqualified person took possession
thereof. It may be brought by anyone who may
{ld.).
have an interest in the succession (CIVIL
CODE, Art. 1040). Characteristics: (VIR)
a. Voluntary and free (CIVIL CODE, Art. 1041);
Effect of Incapacity upon Compulsory Heirs b. Irrevocable, except if there is vitiation of
a. Incapacity based on Undue Influence | consent or an unknown wilt appears (CIVIL
{CIVIL CODE, Art. 1027} and-Morality or . CODE, Art. 1056); and
Public Policy (CIVIL CODE, Art. 739) ¢. Retroactive (CIVIL CODE, Art. 1042).
Only the free portion given to the-heir is
affected, but not his legitime « {JURADO, Requisites:
Succession, supra at 496). : a. ‘Certainty of the Death of the decedent; and
b. Incapacity based on act of unworthiness b. Certainty of the Right to the inheritance
(CIVIL CODE, Art. 1032) (CIVIL'CODE, Ant. 1043).
Disqualifies a compulsory heir from
succeeding even to. his legitime. :
ACCEPTANCEV. REPUDIATION
i In Testamentary : Succession:
Children or ‘descendants “of. the
unworthy child “or descendant - shalt
acquire his right to the legitime. }
{ Acceptance involves | Repudiation renders
i. In Intestate Succession:=Children or
the = comfirmation” or | such transmission
descendants of the unworthy. child or
descendant shall succeed tothe entire
transmission of [ ineffective.
successional rights,
share which is rendered vacant.’

NOTE: Both (i) and (ii) applies only“if the

compulsory heir is a child or descendant of Acceptance can be | Repudiation is
the decedent. presumed from | equivalent to an act of
disposition, as an | disposition and
Remedies Against Disqualified Heir incident of ownership. alienation.
In case the disqualified heir, devisee or legatee
has already taken possession of the property,
the remedy is an action for:
a. Declaration of incapacity; As it is more usual to | Repudiation
accept than to reject an | effect, an
being,
act
in
b. Recovery of the inheritance,” devise or or
legacy (CIVIL CODE, Art. 1040); advantage or benefit, | disposition, requires
¢. The disqualified heir shall be considered as acceptance may be | greater capacity and
possessor in bad faith; hence, he is obliged presumed. : more formalities than
to return the hereditary property together acceptance.
with its accessions; and (JURADO, Succession, supra at 506-507).
d. Being in bad faith the disqualified heir shall
always be liable for damages (3 PARAS, Similarities between Acceptance and
supra at 574). Repudiation
a. Being free and voluntary acts, the presence
of any of the causes which vitiate consent
MEMORY AID
San Beda Unjvarsity College of Law - RGTT Bar Operations Centar

(i.e. mistake, violence, intimidation, undue

influence, or fraud) will render them without
effect;
hb, Bolh are subsequent to the death of the May acee May repudiate
decedent but their effect retroacts to the without her without ner
moment of said death; and husband's husband's
c. There can be partial acceptance and consent consent
repudiation, since the law does not prohibit
this. If the devisee or legatee may accept or if literate, by {if literate, by
repudiate partially, then an heir may also do themselves or | themselves or
so provided only that he may not accept the through an | through an
gratuitous part and repudiate the onerous agent. agent.
part (3 PARAS, supra at 579). If illiterate, by | if illiterate, by
their guardian | their guardian
WITH judicial
WHO MAY ACCEPT OR REPUDIATE
“INHERITANCE approval

the heir | Creditors may

not repudiate

Any person Any person

having the free having the free
disposal of his disposal of his
property property

Guardian or Guardian or
legal legal
representative representative
WITH judicial
authorization

. Manner 6 ceeptance
1. Express Acceptance
— One made in a public or private document.
Person Benéficiaries
designated by | themselves “THclt Acceptance
he testator to | once. they are ~ One resulting from acts by which the intention
determine the | determined to accept is necessarily implied or which one
beneficiaries (CIVIL. CODE, would have no right to do except in the capacity
and to | Art, 1044) of an heir (CIVIL CODE, Art. 1049).
distribute the
property. Tacit acceptance is presumed from certain acts
n default, the of the heir as: (SR?*-DAP-C?E*F)
executor 1. If he Sells, donates, or assigns his right;
2. If he Renounces it, even though gratuitously, for
Legal Legal the benefit of one or more his co-hcirs;
representative | representative 3. If hc Ronounces it for a price in favor of all his
WITH judicial co-heirs indiscriminately; and -
authorization
NOTE: These are acts of disposition, acts which
only the owner is empowered to perform.
i
With the
(JURADO, Succession, supra at L0G).
°°wy:

4, Other acts of tacit acceptance: N/K

government's a. Heir Demands partition of the inheritance;
approval b. Heir - Alienates some objects of the ul
inheritance;
Oo
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 SUCCESSION
Civil Law

¢. Acts of Preservation or administration if, which is understood for legal purposes as an

through such acts, the title or capacity of heir advance from the inheritance (JURADO,
has been assumed; Succession, supra at 511).
d. Filing of a Complaint for the partition of
inheritance; Operations Related to Collation: (CIR?)
e. Compromises regarding objects and rights a. Collation — adding to the mass of the
included in the inheritance; hereditary estate the value of the donation
f. Exercise of any action which pertained to or gratuitous disposition;
the decedent during his lifetime and which b. Impufing or Charging— crediting the
survives; donation as an advance on the legitime (if
g. Enjoyment of the inheritance itself; and the donee is a compulsory heir) or on the
h. Under Art. 1057, Failure to signify free portion (if the donee is a stranger).
acceptance or repudiation within thirty (30) ¢. Reduction — determining to what extent the
days after an order of distribution by the donation will remain and to what extent it is
probate court {/d.). excessive or inofficious.
d. Restitution — return or payment of the
Manner of Repudiation (PAB-JA) excess to the mass of hereditary estate.
a. Public instrument (acknowledged before a
notary public). Concepts of Collation (FIR)
b. Authentic document (equivalent of an | a. Fictitious mathematical process of adding
indubitable writing; or a writing, whose the value of the thing donated to the net
authenticity is admitted or proved); ori - value of the hereditary estate;
Cc. By pelition presented to the’ court having. .
jurisdiction over the testamentary” or PURPOSE: To compute the legitime of
intestate proceeding (/d.). : compulsory, heirs.
d. In case of inheritance. loft to mifiors or
incapacitated persons, parents or guardians b. ‘Act’ ‘of harging or Imputing such value
may repudiate the inheritance left to their against the legitime of the compulsery heir
wards only by Judicial Authorization (CIVIL fo whom the thing was donated; and
CODE, Art. 1044).
PURPOSE: To take the donations in the
Heir in Two Capacities ’ = accountof partition in order to equalize the
An heir who is such by will and by law; and Who shares of the compulsory heirs as much as
repudiates the inheritance as ‘a testamentary ' “possible.
heir, will be considered to have’ repudiated the
inheritance in both capacities. But when an heir- _ ZC. Actual act of Restoring to the hereditary
repudiates as a legal heir without knowledge of. estate that’ part of the donation which is
his being a testamentary heir, he may tater-on.- :. ~"Inofficious in order not to impair the legitime
accept as a testamentary heir (CIVIL: CODE, “Art... of Eompuisory heirs (JURADO, Succession,
1055; JURADO, Succession, supra: gt 509). . SUpFa at 315).
Effect of Acceptance and Repudiation “Obligation to Collate
GENERAL RULE: hrevocable Every compulsory heir, who succeeds with other
compulsory heirs must bring into the mass of the
EXCEPTIONS; estate any properly or right which he may
a. If made through any of the causes that receive from the decedent, during the lifetime of
viliates consent (e.g. mistake, violence, the latter, by way of donation, or any other
intimidation, undue influence and fraud); gratuitous title, in order that it may be computed
and in the determination of the legitime of each heir,
b. When an unknown will appears, provided and in the account of partition (CIVIL CODE, Art.
that such will substantially changes the 1061).
rights of a person who has repudiated or
accepted (CAGUIOA, Civil Law, supra at NOTE: Express provision by the testator
449). exempting an heir from collation does not mean
no collation at all. The heir is merely considered
COLLATION as a stranger and what he has received from the
An act of returning or restoring to the common testator must be charged from the free portion 3
mass of the estate, either actually or fictitiously, TOLENTINO, supra at 572-573).
any property which a person may have received
from the decedent during the latter's lifetime, but
 A

MEMORY AID
San Beda University College of Law - RGCT Bar Operations Center

Persons Obliged to Collate: Properties NOT Subject to Collation:

a. GENERAL RULE: Compulsory heirs a. Parents are not obliged to bring to collation
in the inheritance of their ascendants any
EXCEPTIONS: property which may have been donated by
i. When the testator should have so the latter to their children (CIVIL CODE, Art.
expressly provided; and 1065);
ii. When the compulsory heir should have b. Donations to the spouse of the child (CIVIL
repudiated his inheritance (CIVIL CODE, Art. 1068);
CODE, Art. 1062). c. Expenses for suppor, education
(elementary and secondary only}, medical
in these cases, the donation shall be attendance, even in extraordinary illness,
charged to the free portion and not to the apprenticeship, ordinary equipment, or
legitime (3 PARAS, supra at 612). customary gifts (CIVIL CODE, Art. 1067);
REASON: The legitime of compulsory heirs d. Expenses incurred by parents in giving their
must never be impaired (JURADO, children professional, vocational or other
Succession, supra at 516). career unless the parents so provide, or
unless they impair the legitime (CIVIL
When the law says that "callation shall not CODE, Art. 1068), and
take place,” what it actually meant is that the e. - Wedding gifts by parents and ascendants
value of the thing donated shall not be consisting of jewelry, clothing, and outfit
imputed against the legitime of the except when they exceed 1/10 of the sum
beneficiary; instead, it shall be imputed . disposable by will (CIVIL CODE, Art. 1070).
against the disposable free portion (Id. at”
514). Hlustration:

Grandchildren who survive with their uncles,

aunts, or first cousins, and inherit by right of 4 Ta D (children)
representation. ;

What to Collate:
d. Any property or right received by way of
donation or any other gratuitous title during . (a) During A's]ifetie, A gave B a house. That house
the testalor's lifetime (CIVIL. CODE, Art. was later: on:donated by B to L, a friend. If B
1061). n E will represent B, and together
In case of grandchildren: 1 with C and D will inherit from A. E will be obliged to
i. Allthat they may have received from the collate the value of the house, even if E himself has
decedent during his lifetime. not inherited said property. This is so because, had
ii. . All that their parents, if alive; would have ‘B been alive, he would have been obliged to bring to
brought to collation (CIVIL CODE, Art. collation the value of said house. Since E merely
1064). takes his (B's) piace, it naturally follows that collation
Any sums paid by a parent in satisfaction. of by him (E) is in order.
the debts of his children, slection expenses,
fines, and similar expenses (CIVIL CODE, In the example given in (a), if A had given E a house
Art. 1069). during A's lifetime, the value of said house should
also be collated (considered an advance of his
NOTE: Only the value of the thing donated shalt inheritance) unless of course the testator has
be brought to collation. This value must be the provided otherwise.
value of the thing at the time of the donation,
even though its just value may not then have However, even if there is such a contrary provision,
been assessed (JURADO, Succession, supra at the legitime of the co-heirs must not be prejudiced.
523). Hence, even if the testator has stated that the house
should not. be considered as an advance of the
The subsequent increase or deterioration and
even the total loss or destruction of the thing, be
legitime of E (meaning that aside from the legitime,
E ‘would get also the house}, still this will not be the Zz
it accidental or culpable, shall be for the benefit case if by such means, the legitime of the co-heirs is
or account and risk of the donee (CIVIL CODE, impaired. ~
Art. 1071). [4s3
Ld
Q
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=
 SUCCESSION
Civil Law

EQUALIZATION OF SHARES 74 of the Rules of Court from which it can

GENERAL RULE: Co-herrs shall receive an be inferred that a writing or olher formality
equivalent, as much as possible, in property of is an essential requisite to the validity of
the same nature, class and quality (CIVIL the partition. Accordingly, an oral partition
CODE, Art. 1073) is valid (Vda. De Reyes vs. CA (GR No.
92436, July 26, 1981). *
EXCEPTIONS:
1 it would be impracticable to give the co-heirs REASON: The requirement that a partition
an cquivalent in property and: he putin a public document and registered
1. the property donated was immovable, give has for its purpose the protection of
the co-heirs its equivalent in cash or creditors and at the same time the
securities at the rate of quotation; and if protection of the heirs themselves against
impossible and impracticable, sell at public tardy claims. The object of registration is to
auction as much of the other property as serve as constructive notice to others, it
may be necessary (CIVIL CODE, Art. 1074, follows then that the intrinsic validity of
Par. 1); or partition not executed with the prescribed
formalities does not come into play when
2. If the property donated was movable, co- there are no creditors or the rights of
heirs shall only have a right to select an creditors are not affected (Hernandez vs.
equivalent of other personal property of the Andal, GR No. L-273, March 29,1947)
inheritance at its just price (CIVIL CODE,
Art. 1074, Par. 2). . The fact of such judicial settlement must
be Published in a newspaper of general
PARTITION AND DISTRIBUTION OF circulation in the province once a week for
“three (3). consecutive weeks (FESTIN,
THE ESTATE PARTITION Special”. Proceedings, (2020), p. 31)
Itis the separation, division and assignment ofa - fhereinafter; FESTIN, Special
thing held in common among those to whom it Proceedings]; and
may belong. It includes every act which is
intended to put an end fo-indivision among co— vi. Filing of a bond equivalent to the value of
heirs and legatees of devisees, although it personal-property posted with Register of
should purport to be a“salé, an éxchange, “Deeds (DE LEON & WILWAYCO, Special
compromise, or any other transaction. [tis not . Proceedings: Essential for Bench and Bar,
subject to any form (CIVIL CODE, Ar, 1079 and (2020), p. 32 [hereinafter, DE LEON &
1082). WILWAYCO; Special Proceedings).
Nature of Property Before. Partition. The fact shat the document was not
There is co-awnership between or among heirs. ; ‘notarized’is no hindrance to its effectivity.
(CIVIL CODE, Art. 1079). «The partition of inherited property need not
Be. embodied in a public document
Kinds of Partition Under the Rules of-Court: fAlejandrino v. CA, G.R. No. 114151,
a. Ordinary or Judicial Action for Partition September 17, 1998). Partition among co-
(RULES OF COURT, Rule 69); and owners may thus be evidenced even by the
b. Extrajudicial Settlement (RULES OF overt act of a co-owner of renouncing his
COURT, Rule 74, Sec. 1) right over the property regardless of the form
it takes.” The Court based this assertion on
Requisites: (IDAP?) Article 1082 of the Civil Code (Heirs of
i. The decedent died Intestate; Morales v. Agustin, G.R. No. 224849, June
ii. The estate has no outstandingDebts at the 6, 2018).
time of the settlement;
iii. Decedent's heirs are ail of Age or the Extrajudicial partition .cannot constitute a
minors are represented by their judicial or partition of the property during the lifetime of
legal representatives; its owner. Partition of future inheritance 1s
iv. The settlement was made by means of a prohibited by Art. 1347 of the New Civil Code
Public instrument or affidavit filed with the (JURADO, Succession, supra at 528).
Register of Deeds; and

NOTE: There is no law that requires

partition amang heirs to ha in writing to be
valid. There is nothing in Section 1 of Rule
 FHF ECD

MEMORY AID
San Beda University College of Law - RGCT Bar Operations Center

MODES OF SETTLEMENT OF ESTATE 2. By Will (Partition Mortis Causa) (CIVIL

CODE, Art. 1080) 1t must be effected by a valid
1. Extrajudicial Settlement with the
will duly executed in accordance
Where the decedent left no will and no debts
formalities prescribed by law (JURADO,
a. Deed of Extrajudicial Settlement;
Succession, supra at 528).
b. Partition; or
RULE A partition agreement which was executed
c. Affidavit of Self-adjudication (ROC,
pursuant ta a will that was not probated cannot
74, Sec. 1) ,
be given effect. Before any will can have any |
force or validity it must be probated - this cannot
2. Judicial Settlement
be dispensed with and is a matter of public palicy
a. Partition — Ordinary action of partition (ROC, No. 175720,
{Rodriguez v. Rodriguez, G.R.
RULE 69); September 11, 2007).
b. Summary of Seltlement of Estate of Small
Value (ROC, RULE 74, Sec. 2);
¢. Probate of Will (ROC, RULES 75-89); or PARTITION BY THIRD PERSON
d. Petition for Letters of Administration (ROC, A person may, by an act inter vivos or mortis causa,
RULE 79) intrust the mere powerto make the partition after his
death to any person who is not one of the co-heirs
(CIVIL CODE, Art. 1081, par. 1).
WHO MAY EFFECT PARTITION:
1. Decedent himself during his lifetime by an act
inter vivos or by will;
What is entrusted is the mere power of partition, not
the power to distribute the hereditary estate. Hence,
2. Third person designated by the decedent;
the act of the person delegated with such power is
3. Heirs themselves; or
Succession, supra that of a mere agent or mandatory (JURADO,
4. Competent court (JURADO,
=. Succession, supra at 830).
at 528).

PARTITION BY DECEDENT WHO. CAN DEMAND PARTITION: (CLAV)

by which a 1. Compulsory heir;
Under Art. 1080. there are two ways
2. Legatee or devisee;
person may affect the partition of his own property
3. Any person who has acquired an interest in the
or estate — by an act inter vivos or by willfin both
estate; and
cases, the legitime of compulsory heirs must not be
4. Voluntary heir (/d. at 537).
prejudiced (/d. at 529).

by the Decedent:
Two Ways of Partition
WHEN PARTITION CANNOT BE

1. By an Act infer vivos (Partition inter Vivos)

DEMANDED: (PAPUF)
1. When expressly Prohibited by the testator
(CIVIL. CODE, Art. 1080)
“himself for a period not exceeding 20 years;
It may be oral or written and need not be in the
form of a will, provided that the partition does not 2." When the co-heirs Agreed that the estate shall
not be divided for a period not exceeding 10
prejudice the legitime of compulsory heirs. This
years, renewable for another 10 years;
constitutes an exception to the rule declared in
When Prohibited by law (i.e. party wall),
Art. 1347, par. 2 of the Code that no person can
mo

When to partition the estate would render it

enter into a contract with respect to future
Unserviceable for the use for which il is
inheritance (Id. at 529-530).
intended; and
regarding 5. When the property owned in common by co-
In partition inter vivos, the rules
and real heirs is a Family home and the testator has not
ordinary conveyance of personal
must be followed such as when ordered its dissolution (fd.).
properties
conveyance through a public instrument is
required (/d. at 530). PROVISIONAL PARTITION
Voluntary heir upon whom some condition has been
NOTE: The lestator may still revoke the partition imposed cannot demand partition until the condition ”
done by his own act inter vivos because during has been fulfilled; but the other co-heirs may i
such time, that is, before his death, he is still the demand it by giving sufficient security for the rights
i =

owner of the property (3 TOLENTINO, supra at which the former may have in case the condition
598-599). should be complied with, and until it is known that
Rationale: The rights to the succession are the condition has not been fulfilled or can never be
transmitted from the moment of death of the complied with, the partition shall be understood to be Ad
decedent (CIVIL CODE, Ari. 777). provisional (CIVIL CODE, Art. 1084).
5
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 SUCCESSION
Civil Law

The partition will become permanent after: 2. Obligation of Warranty — After the partition, the
1. The condition was tulfilled; and co-heirs shall be reciprocally bound to warrant
2. It is known that the condition has not been the title to (warranty against eviction) and the
fulfilled or can never be complied with (CIVIL "quality of (warranty against hidden defects) each
CODE, Art. 1084). property adjudicated {CIVIL CODE, Art. 1092).

CONSTRUCTIVE PARTITION RULE ON OBLIGATION OF WARRANTY

Where thing owned in common is indivisible or a The obligation is proportionate io the respective
division thereof would impair its value or render it hereditary Shares of the co-heir but if any of them
unserviceable for the use for which it is intended, it becomes insclvent, the others shall be liable also for
may be adjudicated to one of the heirs who shall pay his part in the same proportion, deducting the part
the others the excess in cash. Nevertheless, if any corresponding to the one to be indemnified, without
of the: heirs should demand that the thing be sold at prejudice to their right of reimbursement should the
public auction and strangers be allowed to bid, this financial condition of the insolvent heir improve
must be done (CIVIL CODE, Art. 1086). (CIVIL CODE, Art. 1093).

RULE WHEN A CO-OWNER SELLS HIS RULE WHEN WARRANTY OF CREDIT

‘SHARE BEFORE PARTITION ASSIGNED
Before the property is partitioned, the heirs are co- When a credit is assigned to a co- Their as good or
owners of the property and they cannot alienate the collectible, the other co-heir is liable in case of
shares that do not belong to them (CIVIL. CODE, Art. | ih solvency. , of the debtor of the estate if such
493). insolvency existed at the time the partition was made
(on, GODE, Ar. 1085, par. 1).
Should any of the heirs sell his hereditary
stranger before the partition, any; of all he C0 -heirs NOTE: There i 0 warranty as to bad debts
may be subrogated to the rights’ BfAh p assigned to k:) ‘coheirif so known and accepted by
* reimbursing him for the price of the sale, ‘provided the latter. If fhe, bad ‘debts which have not been
they do so within the period of ope ‘month from the: allotted ito a “cotheir. are paid, all shall share
time they were notified in writifig of the sale by: the proportidnately the" anqunt collected (CIVIL CODE,
vendor (CIVIL CODE, Ari. 1088 ; . Ar. 1095, par. 3)

Any sale by one heir of the: rest 6 Period. to Enforce Warranty Among
not affect the rights of the other irs W +10 years from the date the right of action
consent to the sale. Such sale |is void with Jes pec Sicivie CODE, Art. 1094)

Lopez vs. DBP, G.R. No. 193551, November Prescripive Period of Warranty for Solvency of
2014). “, 2b

REQUISITES OF LEGAL REDEMPTION: :

(S2-BO-1R)
1. There must be Several co-heirs; THE bligation of Warranty shall cease in the
following Cases: (PSE)
2. One of them Sells his right to a stranger;
1. When the testator himself has made the
3. The sale is made Before the partition;
4. The right of redemption must be exercised by Partition unless his intention was otherwise, but
only One or more of the co-heirs; the legitime shall always remain unimpaired;
2. When it has been expressly Stipulated in the
5. It must be 1 month from the time they were
notified in writing by the co-heir vendor; and agreement of partition, unless there has been
6. The vendee is Reimbursed for the price of the bad faith; and
3. When the Eviction is due to a cause subsequent
sale (3 PARAS, supra at 649).
to the partition, or has been caused by the fault
NOTE: The redemption can be exercised only by a of the distributee of the property (CIVIL CODE,
co-heir (/d.). Art. 1096).

EFFECTS OF PARTITION: RESCISSION AND ANNULMENT OF

1. A partition legally made confers upon each heir
PARTITION
the exclusive ownership of the property Partition, once made, may be rescinded or annulled
adjudicated (CIVIL CODE, Art. 1091); and for the same causes as in contracts (CIVIL CODE,
Art. 1097).
 MEMORY AID
Ban Baca University College of Law - RGCT Bar Operations Canter

EFFECTS OF INCLUSION OF INTRUDER

IN PARTITION any other manner
1. Between a true heir and several mistaken collect the claims due
heirs (CIVIL CODE, Art. 1105): them;
a. The partition is void; and 4. Those which refer
b. The declaration of nullity shall result in the to things under
delivery of everything that had been litigation if they have
adjudicated to the true heir. been entered into by
the defendant without
2. Between several true heirs and a the knowledge and
mistaken heir (CIVIL CODE, Art. 1105): The approval of the
transmissionto a mistaken heir is void. litigants - or of
competent judicial
3. Through error or mistake, share of true authority;
heir is allotted to mistaken heir (CIVIL 5. All other contracts
specially declared by
CODE, Arts. 1104 and 1105):
a. The partition shall not be rescinded uniess law to be subject to
there is bad faith or fraud on the part of the rescission; and
other persons interested, but the latter shall 6. Payments madein a
be proportionately obliged to pay the true state of insolvency for
obligations to whose
heir of his share; and
b. The partition with respect to the mistaken: fulfillment the debtor
heir is void (JURADO, Succession, supra at. : could not be
compelled at the
537).
RESCISSION V. ANNULMENT OF
bell fed (CIVIL
Art. 1380-
PARTITION

PARTITION WITH PRETERITION

GENERAL RULE: A partition made with preterition
Rescissible contracts are Annulment is a’ remedy
cannotbe : Te! CIVIL CODE, Art. 1104).
valid contracts without granted by law because
any defect whatsoever of vices of defects in
EXCEPTION: When it can be proved that there was
but the law grants the consent or because of
bad. faith or fraud on the part of the other persons
remedy of rescission. the incapacity of one of
ed (CIVIL CODE, Art. 1104).
the contracting: partie

REMEDY OF PRETERITED HEIR

1. Those which 1. Party incapable of Demand that the persons interested be
giving consent; and proportionally liable for his share in the inheritance
are entered into by
Vitiated consent (CIVIL CODE, Art. 1104).
guardians whenever
]

the wards a. Mistake;

whom they b. Violence; RESCISSION OF PARTITION DUE TO
represent suffer lesion c. Intimidation; LESION
by more than 1/1 of d . Undue Influence; If in the partition, anyone of the co-heirs should
the value of the things - and receive a share whose value is less, by at least 1/4
which are the object e. Fraud (CIVIL than the share to which he is entitled, considering
thereof; CODE, Art. 1390). the value of the things at the time they were
2. Those agreed upon in adjudicated, the partition, whether judicial or
representation of extrajudicial, may be rescinded on account of the
absentees, if the lesion (CIVIL CODE, Art. 1098) :
latter suffer the lesion
stated in the ii the lesion is less than 1/4 rescission will not lie; the
preceding number; proper action is one for damages (3 PARAS, supra
3. Those undertaken in at 664).
fraud of
creditors when the GENERAL RULE: If the partition was effected by the
latter cannot in decedent himself either by an act inter vivos or by
 SUCCESSION
Civil Law

will, it cannot be imptigned on the ground of lesion

(JURADO, Succession, supra at 536).

EXCEPTIONS:
1. When the legitime of the compulsory heir is
prejudiced; and
2. When it appears or may reasonably be
presumed that the intention of the testator was
otherwise (3 PARAS, supra at 664).

NOTE: In both cases, the lesion may be less than

1/4 (1d.).

Options for the Sued Heir:

1. Indemnify the plaintiff in cash or by the delivery
of the thing in same kind and quality as that
awarded to the plaintiff; or
2. Consent to a new partition. If a new partition is
made, it shall affect neither those who have not
been prejudiced nor those who have not
received more than their just share (CIVIL -
CODE, Art. 1101).
Prescriptive Period of Partition Due to Lesion:
4 years from the date of Judictai partition (CIVIL
CODE, Ari. 1100).

DISTRIBUTION OF ESTATE
GENERAL RULE: No distribution shail be allowed
until the payment of the debts, funeral charges, and
expenses of administration, the allowance to the
widow, and inheritance tax, if any, chargeable to the ~
estate in accordance with law. © * k

EXCEPTION: The distributees, or any of ther, give

a bond, in a sum to be fixed by the court conditioned
for the payment of said obligations within‘ such. time
‘as the court directs (RULES OF COURT; Rule 90,
Sec. 1).

Reading Article 777 of the Civil Code togsition with

the pertihent provisions of PD 1529 (Property ~
Registration Decree) and the Rules of Court, while
an heir may dispose and transfer his/her hereditary
- share to another person, before the transferee may
compel the issuance of a new certificate of title
covering specific property in histher name, a final
order of distribution of the estate or the order in
anticipation of the final distribution issued by the
testale or intestate court must first be had (Salitico
vs. Heirs of Resurreccion Martinez Felix, G.R. No.
240198, April 10, 2019).
 [2020 civvin)

MEMORY AID
San Beda Univarsity College of Law - RGCY Bar Operations Canter

The vinculum juris or juridical tie is that which

OBLIGATIONS essentially binds the parties to the obligation.
linkage between the parties is a binding relation that
This

is the result of their bilateral actions, which gave rise

to the existence of the contract (The Wellex Group,
GENERAL PROVISIONS Inc. v. U-Land Airlines, Co., Ltd, G.R. No. 1675619,
January 14, 2015).
(ARTS. 1156-1162)
B. ACTIVE SUBJECT
The obligee or creditor, who can demand the
fulfilment of the obligation.
OBLIGATION
A juridical necessity to give, to do, or not to do (CIVIL He is the possessor of a right; he in whose favor the
CODE, Art. 1156). ‘obligation is constituted (PARAS, Civil Code of The
Philippines Annotated, Vol. IV (2016). pp. 78
An obligation is a juridical relation whereby a person [hereinafter, 4 PARAS).
(called the creditor) may demand from another (called
the debtor) the observance of a determinative C. PASSIVE SUBJECT
conduct (the giving, doing [Link] doing), and in case The obligor or debtor, against whom the obligation is
of breach, may demand satisfaction from the assets juridically demandable.
of the latter (Makati Stock Exchange, Ine. v. Campos,
G.R. No. 138814, April 16, 2009). © D. OBJECT / PRESTATION
A prestation is the object of an obligation, and it is the
JURIDICAL NECESSITY . conduct required by the parties to do or not to do, or
Obligation is a juridical necessity because in case of “ito give (The Wellex Group, Inc. v. U-Land Airlines,
non-compliance, the courts of justice may be called “supra; citing wAng Yu Asuncion v. CA, G.R. No.
upon to enforce its fulfilment or, in default thereof, the 109125, December2, 1994).
economic value that it represents (DE LEON,
Comments and Cases on Obligations aid Contracts Not the thing or object, but the particular conduct of
(2014), pp. 1-2 [hereinafter DE LEON; Obligations 7 the debtor which may consist in giving, doing, or not
and Contracts]). 2 giving. ors not doing something (4 TOLENTINO,
== Commentaries and Jurisprudence on the Civil Code
.. of the Philippines, (2002), p. 57 [hereinafter 4
Elements of an Obligation: (JAPO)
«i: TOLENTINGJ: +=
1. The Vinculum juris or Juridical ie
2.
3.
The
The
Active Subject or obligee/creditor
Passive Subject or obligor/debtor
_ KINDS OF PRESTATION:
4. The Object or Prestation give
prestation which consists in the delivery of a
A. JURIDICAL TIE OR RELATION movable or an immovable thing in order to create
The efficient cause established by the various a real right, or for the use of the recipient, or for
sources of obligations (law, contracts, quasi- its simple possession, or in order to return it to its
contracts, delicts and quasi-delicts). owner (e.g., sale, deposit, donation} {lloilo Jar

. QUIL : Pe pe on 1 for
GACULA, Ad ioc Director for Bar Matters | MARIELLE CIEL 0 B. BEL GIRA, Vice Chairperson. for Finance | JUAN INIGO S$. MIGUE L
for Audit] CORINA TAMPUS, Vice Chairperson
Vice Chairperson for Operations | ALISSA MARIE D.C. DELOS SANTOS, Vice Chairperson
for Secretariat | ARVY KEITH CHUNG, Vice Chairperson for Logistics | ANTONIO JUN-JUN C. MANAL IGOD IV, Vice Chairperson for
Membership | JORDAN N. CHAVEZ, Vice Chairperson for Llectronic Data Processing

NOSLEN ANGINEB E. MENDOZA, Subject Chair | KING LAURENZ, S. MASILUNGAN, Assistant Subject Chair | ALHEX ADREA M.
PERALTA, Subject Electronic Data Processing | SUBJECT HEADS: JOAN V. LAGRADILLA, Agency & Trusts | QUENNIE IRIS V.
BULATAO, Conflicts of Law | JESSU R. TRINIDAD, Loan and Deposit | SKY BLUE C. SAMSON, Obligations and Contracts i
CHRISTIENNE NATHALIE A. BERONA, Persons and Family Relations | KRISTOFFER MONICO S. NG, Property | JULEEN EVETTE
D. MALLARI, Land [itles and Deeds | MARISOL O. SISON, Sales | GEM EDWARD E. AQUINO, Torts | PATRICIA MAE R. FEDERIS,
Succession |
> ARERG

SAMANTHA YVES O. PLACIDO, QUENNIE IRIS v. BULATAO, JESU R. TRINIDAD, PATRICIA MARIE G. CARLON,
CHARISMAT. CHAN, ROCKYLLE DOMINIQUEL. BALISONG, ROSELLE JUNE G. CERENO, MARIANNE HELENE I. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE 8. BATLE, MICHELLE L. DELOS SANTOS, SUSANNA MARTHA B. IBE, KARLA
MARIE C. SANTOS, YUMIKO ANGELIUS M. YOSHIY, MARY JOY B. DFTA CRUZ, JESSA A. YALAO,, KIEZLLE CAYNE D.
MANALILL, ANNA ROCHELLE D. PAYONGAYONG, MA. NICOLAI M. TORRES and MIKHAILA KE AUDINE A. ROSALES

Atty, JUN MARR M. DENILA and Dean ULPIANO P. SARMIENT