IDENTITY

DUE EXECUTION
CAPACITY OF THE TESTATOR

What is res judicata ?

The rule of res judicata is a maxim that forbids the reopening of a matter once the same matter has already been determined by competent authority acting
within their exclusive jurisdiction.

The elements of res judicata are:

1) The judgment sought to bar the new action must be final;
2) The decision must not have been rendered by a court having jurisdiction over the subject matter; and
3) The disposition of the case must be a judgment on its merits;
4) and there must be identity of the parties and cause of action

Article 795 The validity of a will as to its form depends upon the observance of the law in force at the time it is made.

(Page 63, Paras) (Page 392, UST)

- Relate to Article 16
- Since the intrinsic validity of the provision of the will and the amount of successional rights are to be
determined under Texas law, the Philippine law on legitimes cannot be applied to the testate of Amos
G. Bellis (Bellis v. Bellis)

Renvoi Doctrine
- The Renvoi Doctrine is a method of disposing of a Conflict of Laws problem by referring a matter for
judgment or consideration to another State. The legal matter is “referred back” to the law of the
forum. As held by the Supreme Court in the Bellis Case, said doctrine is usually pertinent where the
decedent is a national of one country, and a domicile of another.

Article 798; 799 In order to make a will it is essential that the testator be of sound mind at the time of its execution;
 To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or
that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury, or other cause. It shall be
sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed
of, the proper objects of his bounty, and the character of the testamentary act.

Requisites for soundness of mind:

- It shall be sufficient if the testator was able, at the time of making the will, to know the (1) nature of
the estate to be disposed of, (2) the proper objects of his bounty; and (3) character of the testamentary
act (Art. 799)

Article 804 Every will must be in writing and executed in language or dialect known to the testator

Article 805 Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by
the testator’s name written by some other person in his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall
be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused some other person to write his name, under his
express direction, in the presence of the instrumental witnesses, and the latter witnessed and signed the will
and all the pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.

Requirements of a Notarial or Ordinary Will:

1) The will must be in writing

2) The will must be executed in a language or dialect known to the testator
3) The will must be subscribed by the testator or by the testator’s agent in his presence, by his express
direction at the end thereof, in the presence of witnesses
 4) The will must be attested and subscribed by three or more credible witnesses in the presence of the
testator and of one another
5) The testator or the testator’s agent must sign each and every page, except the last, on the left margin,
in the presence of the testator and of one another,
6) All pages of the will must be numbered correlatively in letters on the upper part of each page;
7) The will must contain an attestation clause stating the number of pages of the will, the fact that the
testator or the testator’s agent under his express direction signed the will and every page thereof in the
presence of witnesses, and the attestation clause must contain the fact that the witnesses witnessed
and signed the will and every page thereof in the presence of the testator and one another
a) Taboada v. Rosal (What are the contests of the attestation clause?)
i) The number of pages of the will,
ii) The fact that the testator or his agent under his express direction signed the will and
every page thereof, in the presence of witnesses, and
iii) The fact that the witnesses witnessed and signed the will and every page thereof in
the presence of the testator and one another
8) Furthermore, Article 806 of the Civil Code provides that every will must be acknowledged before a
notary public by the testator and the witnesses.
9) And, Article 808 of the Civil Code provides that if the testator is blind, the will shall be read to him
twice by the subscribing witnesses and the notary public. Such fact shall be placed in the attestation
clause.

Article 809 In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is
proved that the will was in fact executed and attested in substantial compliance with all the requirements of
Article 805.

This article is also known as the Doctrine of Liberal Interpretation or Doctrine of Substantial Compliance
- A will is not rendered invalid by reason of defects or imperfections in the form of attestation or in the
language used therein.
- In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects
and imperfections in the form of attestation or in the language used therein shall not render the will
invalid if it is proved that the will was in fact executed and attested in substantial compliance with all
the requirements of Art. 805.
 - In cases of omissions in the will, if it can be supplied by an examination of the will itself, without the
need of resorting to extrinsic evidence it will not be fatal and, correspondingly, would be allowed for
probate.

Failure to state the number of pages in the Attestation Clause:

- Azuela v. CA
- The failure of the attestation clause to state the number of pages on which the will was written
remains a fatal flaw, despite Art. 809 of the Civil Code. The purpose of the law in requiring the
attestation clause to state the number of pages on which the will is written is to safeguard against
possible interpolation or omission of one or some of its pages and to prevent any increase or decrease
in the pages. There is substantial compliance with this requirement if the will states elsewhere in it
how many pages it is composed of.

When is the rule on substantial compliance applicable?

- The substantial compliance rule is only applicable to the attestation clause. In the absence of bad
faith, forgery, fraud, undue and improper pressure and influence, the defects and imperfections in the
form of attestation or in the language used therein shall not render the will invalid, if it is proved that
the will was in fact executed and attested in substantial compliance with all the requirements of Art.
805. However, only omissions in the attestation clause which can be supplied by an examination of
the will itself or by intrinsic evidence will not be fatal to the validity of the will. The omissions in the
attestation clause which can only be proved by extrinsic evidence would result in the invalidation of
the attestation clause and ultimately of the will itself. (Caneda v. CA)

Article 810 A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be
witnessed.

HANDWRITTEN, DATED, SIGNED

Caneda v. CA - This kind of will, unlike the ordinary type, requires no attestation by witnesses. A common
requirement in both kinds of will is that they should be in writing and must have been executed in a language
or dialect known to the testator.

The language must be known to the testator, the will must be entirely written in the hand of the testator
 himself, the will must be dated; otherwise it is null and void, the will must be signed by the testator himself,
there must be animus testandi, it must be executed at the time that holographic wills are allowed.

Article 811 In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting
and signature of the testator explicitly declare that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such witnesses shall be required.

In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it
necessary, expert testimony may be resorted to.

In relation to Article 838:

A probate is the act of proving before a competent court the due execution of a will by a person possessed of
testamentary capacity. Probate is also the act of approval by the same competent court. Article 838 also
provides that no will shall pass either real or personal property unless it is proved and allowed in accordance
with the Rules of Court. Thus, probate is a proceeding in rem required to establish the validity of a will in
order to pass real or personal property.

The matters to be proved in probate are the identity, due execution, and capacity of the testator.

A probate is the allowance of a will by the court after its due execution has been proved.

(Page 402 UST)

If the will is uncontested, it shall be necessary that at least one witness who knows the handwriting and
signature of the testator is required to avoid the possibility of fraud. If contested, at least three such witnesses
shall be required to explicitly declare that the signature in the will is the genuine signature of the testator. If
none are available, experts may be called upon. (Azoala v. Singzon).

Article 814 In case of any insertion, cancellation, erasure, or alteration in a holographic will, the testator must
authenticate the same by his full signature.

Article 815 When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the
law of the country in which he may be. Such will may be probated in the Philippines.

In relation to Article 15 (Nationality Principle)

 ARTICLE 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines, even though living abroad.

Yu Chengco v. Tiaoqui
- None of the certifications required by the existing law for the authentication of a document executed
in a foreign country appear in the record of this case; it is not authoritatively shown, nor has any sort
of evidence been offered, that the document presented to the court is the will executed on the date
alleged in the petition, and executed in conformity with the Chinese laws and duly authenticated by a
competent court, and lastly that said will is a valid document according to the Chinese statutes. The
signatures of the persons subscribing the will as witnesses, and the official capacity or authority of
any of those alleged to have authenticated the documents, are not certified to by any Chinese
authority or official: There are absolutely no grounds of law or fact on which to declare that the
document in question is a will duly authenticated in a foreign country, in order that it may be allowed,
authenticated, and recorded in any court of these Islands.

Miciano v. Brimo
- The fact is that the opposition did not prove that said testamentary dispositions are not in accordance
with the Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws
are on the matter, and in the absence of evidence on such laws, they are presumed to be the same as
those of the Philippines.

Article 816 The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed
by the law of the place in which he resides, or according to the formalities observed in his country, or in
conformity with those which this Code prescribes.

Article 820 Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to
read and write, may be a witness to the execution of a will mentioned in Article 805 of this Code.

Witnesses to a Notarial Will (403 UST)

SM-18-A-B-C
- Of sound mind,
- At least 18 years of age
- Able to read and write
 - Not blind, deaf, or dumb
- Furthermore, Article 821 of the Civil Code provides that any person not domiciled in the Philippines,
and those who have been convicted of final judgment of falsification of document, perjury, or false
testimony are disqualified from being witnesses to a will

Article 822 If the witnesses the execution of a will are competent at the time of attesting, their becoming subsequently
incompetent shall not prevent the allowance of the will

Article 825 A codicil is a supplement or addition to a will, made after the execution of a will and annexed to be taken as a
part thereof, by which any disposition made in the original will is explained, added to, or altered.

A codicil cannot be made before a will, for it has to be always made after. In case of conflict between a will
and a codicil, the latter should prevail.

Article 826 In order that a codicil may be effective, it shall be executed as in the case of a will.

Article 828 A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is
void.

American jurisprudence provides that the testator’s right to revoke during his lifetime is absolute until his
death because a will is ambulatory and revocable. The will concerns a disposition of properties and rights
effective after death.

Read Macam v. Gatmaitan

Article 829 A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid
when it is done according to the law of the place where the will was made, or according to the law of the
place in which the testator had his domicile at the time; and if the revocation takes place in his country, when
it is in accordance with the provisions of this Code.

Rules (404 UST)

- If the revocation takes place in the Philippines, whether the testator is domiciled in the Philippines or
in some other country - Philippine Law
- If the revocation takes place outside the Philippines - follow the place where the will is made or
follow the law of the place where the testator was domiciled at the time of revocation.
Article 830 No will shall be revoked except in the following cases: (1) By implication of law; or (2) By some will,
codicil, or other writing executed as provided in case of wills; or (3) By burning, tearing, canceling, or
obliterating the will with the intention of revoking it by the testator himself, or by some other person in his
presence, and by his express direction. If burned, torn, canceled, or obliterated by some other person, without
the express direction of the testator, the will may be established, and the estate distributed in accordance
therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancelation, or
obliteration are established according to the Rules of Court.

Modes of Revoking a Will:

- By implication of law
- By some will, codicil, or other writing executed as provided in the case of wills, or
- By physical destruction through burning, cancelation or obliteration

Revocation by Implication of Law:

- The revocation takes place when certain acts or events take place subsequently to the making of a
will, which nullify or render inoperative either the whole will itself or certain testamentary
dispositions.
- American jurisprudence provides that there may be certain changes in the family or domestic
relations such that the law presumes a change of mind on the part of the testator.

Revocation by Overt Act:

- IDC
- There must be an overt act specified by law
- There must be animus revocandi
- The testator at the time of revoking must have the capacity to make a will, that is to say, the testator is
of sound mind
- The revocation must be done by the testator himself or by some other person in his presence and by
express direction.
- Burning, tearing, etc.

Revocation by Subsequent Will or Codicil

- The subsequent instrument must comply with the formal requirements of a will, the testator must
possess testamentary capacity, the subsequent instrument must either contain a revocation clause or
be incompatible, totally or partially, with the prior will
 Probate of lost or destroyed notarial wills
- In the Matter of the Petition to Approve the Will of Ricardo Bonilla; Bodellar v. Aranza
- The best and only evidence is the handwriting of the testator in said will. It is necessary that
there be a comparison between sample handwritten statements of the testator and the
handwritten will. But, a photostatic copy or xerox copy of the holographic will may be
allowed because comparison can be made with the standard writings of the testator.
- The photostatic or xerox copy of the lost or destroyed holographic will may be admitted
because then the authenticity of the handwriting of the deceased can be determined by the
probate court.

(Page 406 UST)

- Ways of making a revocation by a subsequent will: Express or Implied

Doctrine of Presumed Revocation - Gago v. Mamuyac

Article 831 Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions in
the prior wills as are inconsistent with or contrary to those contained in the later wills.

Implied Revocation

Article 832 A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by
reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation.

Page 148 Paras

Article 833 A revocation of a will based on a false cause or an illegal cause is null and void.

Article 834 The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was
made should be revoked.

While a will is essentially revocable, recognition is irrevocable, unless there was vitiation of consent.
Moreover, recognition is not really a testamentary disposition, nor does recognition wait for the testator’s
death to become effective. This provision applies only if the will recognizing the non-marital child is
extrinsically valid.
 Voluntary recognition of an illegitimate child may be done in a record of birth, will, a statement before a court
of record, and any authentic writing. This is because recognition does not wait for the testator’s death to
become effective.

Article 835 The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in a
previous one which is void as to its form.

Article 838 No will shall pass either real or personal property unless it is proved and allowed in accordance with the
Rules of Court.

The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his
will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator’s
death shall govern.

The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of
wills on petition of the testator.

Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his
death, shall be conclusive as to its due execution.

Estoppel not applicable:

The rule of estoppel does not apply to probate proceedings for they are invested with public interest.
(Guevarra v. Guevarra). That decision cannot be relied upon as an authority for the unprecedented and
unheard of procedure adopted by the respondent whereby she seeks to prove her status as an acknowledged
natural child of the decedent by his will and attempts to nullify and circumvent the testamentary dispositions
made by him by not presenting the will to the court for probate and by claiming her legitime as an
acknowledged natural child on the basis of intestacy; and that in the face of express mandatory provisions of
the law requiring her to present the will to the court for probate.

Termination of probate proceedings:

- Santiesteban v. Santiesteban
- Probate proceedings are terminated upon the approval by the probate court of the project of partition.

Article 839 The will shall be disallowed in any of the following cases:
 (1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its
execution;
(3) If it was executed through force or under duress, or the influence of fear or threats;
(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of
some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the
time of affixing his signature thereto.

Page 192 Paras

Fraud
- Fraud is the use of insidious machinations to convince a person to do what ordinarily he would not
have done. For fraud to vitiate a will, there must be intent to defraud.
- Fraud in a contract renders it voidable, in a will, the same is cause for disallowance (VOID).
- Pecson v. Coronel: As to Lorenzo Pecson, we do not find in the record sufficient proof to believe that
he should have tried, through fraud or any undue influence, to frustrate the alleged intention of the
testatrix to leave her estate to her blood relatives. Although Norberto Paras testified having heard,
when the will was being read to Dolores Coronel, the provision whereby the estate was ordered
distributed among the heirs, the preponderance of the evidence is to the effect that said Norberto
Paras was not present at such reading of the will.

Revocation and Disallowance or Nullity

- Revocation: Voluntary act of the testator, with or without cause, partial or total
- Disallowance: Judicial order, for legal cause

Article 840 Institution of heir is an act by virtue of which a testator designates in his will the person or persons who are to
succeed him in his property, and transmissible rights and obligations.

Article 887: Compulsory Heirs

1. Legitimate children and descendants, with respect to their legitimate parents and ascendants;
2. In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and
 descendants;
3. The widow or widower;
4. Acknowledged natural children, and natural children by legal fiction;
5. Other illegitimate children referred to in Article 287.

UST 408

IDC

The will must be extrinsically and intrinsically valid, and the institution must be effective. (Page 199 Paras)

Article 841 A will shall be valid even though it should not contain an institution of an heir, or such institution should not
comprise the entire estate, and even though the person so instituted should not accept the inheritance or
should be incapacitated to succeed. In such cases, the testamentary dispositions made in accordance with law
shall be complied with and the remainder of the estate shall pass to the legal heirs.

Article 842 One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person
having capacity to succeed. One who has compulsory heirs may dispose of his estate, provided he does not
contravene the provisions of this Code with regard to the legitime of said heirs.

Article 844 An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is possible,
in any other manner, to know with certainty the person instituted.

If among the persons having the same names and surnames, there is a similarity of circumstances in such a
way that, even with the use of other proof, the person instituted cannot be identified, none of them shall be an
heir.

Thus, mere error in designation of name or circumstances is not important as long as the intent is clear, and
there is positive identification.

Article 845 Every disposition in favor of an unknown person shall be void, unless by some event or circumstance his
identity becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid.

Article 846 Heirs instituted without designation of shares shall inherit in equal parts.
 Principle of equality

Case of Onesima De Belen v. BPI

- Legacy divided into equal parts
- We conclude that in the absence of other indications of contrary intent, the proper rule to apply in the
instant case is that the testator, by designating a class or group of legatees, intended all members
thereof to succeed per capita, in consonance with article 846. So that the original legacy to Filomena
Diaz should be equally divided among her surviving children and grandchidren.

Article 847 When the testator institutes some heirs individually and others collectively as when he says, “I designate as
my heirs A and B, and the children of C”, those collectively designated shall be considered as individually
instituted, unless it clearly appears that the intention of the testator was otherwise.

Principle of individuality

Page 210 Paras

Article 848 If the testator should institute his brothers and sisters, and he has some of full-blood and others of half-blood,
the inheritance shall be distributed equally, unless a different intention appears.

Article 849 When the testator calls to the succession a person and his children, they are all deemed to have been instituted
simultaneously and not successively.

Principle of simultaneity

Article 854 The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the
time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but
the devises and legacies shall be valid insofar as they are not inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without
prejudice to the right of representation.

Article 1104 A partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it be proved
that there was bad faith or fraud on the part of the other persons interested; but the latter shall be
proportionately obliged to pay to the person omitted the share which belongs to him.

1) Legitimate children and descendants with respect to their legitimate parents / ascendants
2) Legitimate ascendants
3) Illegitimate children
4) Father and mother of illegitimate children

Preterition
- It is the omission, whether intentional or not, of a compulsory heir in the inheritance of a person. It
annuls the institution of the heir.
- Requisites
- There is a total omission in the inheritance
- The omission must be of a compulsory heir
- The compulsory heir omitted must be in the direct line
- Nothing must have been received by the heir

Nuguid v. Nuguid
- The deceased Rosario Nuguid left no descendants, legitimate or illegitimate. But she left forced heirs
in the direct ascending line her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid. And,
the will completely omits both of them: They thus received nothing by the testament; tacitly, they
were deprived of their legitime; neither were they expressly disinherited. This is a clear case of
preterition.

Preterition v. Disinheritance:
- Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either
because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor
are expressly disinherited." (Nuguid v. Nuguid).
- Disinheritance, in turn, "is a testamentary disposition depriving any compulsory heir of his share in
the legitime for a cause authorized by law. "
- In sum, preterition is a deprivation of a compulsory heir of his legitime is tacit, while in
disinheritance, deprivation of the compulsory of his legitime is express.
- Preterition results in the complete nullity of the institution of heir, except the devisees and legatees, as
long as they are not inofficious, while in disinheritance, the nullity is limited to the portion of the
estate of which the disinherited heir has been legally deprived.
 - The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits
their names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in
which the said forced heirs suffer from preterition.
- In preterition, the omitted heir gets not only his legitime but also his share in the free portion not
disposed of by way of legacies or devises. In disinheritance, if the disinheritance is unlawful or
ineffective, the compulsory heir is merely restored to his rightful share.
Acain v. IAC
- Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not
ascend or descend from the testator, although she is a compulsory heir. Stated otherwise, even if the
surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the
inheritance, for she is not in the direct line.
- intestacy having resulted from the preterition of respondent adopted child and the universal
institution of heirs, petitioner is in effect not an heir of the testator.

Article 856 A voluntary heir who dies before the testator transmits nothing to his heirs.

A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the
inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code.

Article 857 Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir
originally instituted.

Article 858 Substitution by heirs may be:

1) Simple or common
2) Brief or compendious
3) Reciprocal; or
4) Fideicommissary

Simple substitution takes place when the heir instituted predeceases the testator, repudiates the inheritance or
is incapacitated to succeed. (Art. 859) R I P

Article 859 The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or
heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance.

A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned
 in the preceding paragraph, unless the testator has otherwise provided.

Case of Crisologo, et al v. Singson

- the testator may not only designate the heirs who will succeed him upon his death, but also provide
for substitutes in the event that said heirs do not accept or are in no position to accept the inheritance
or legacies, or die ahead of him.
- A careful perusal of the testamentary clause under consideration shows that the substitution of heirs
provided for therein is not expressly made of the fideicommissary kind, nor does it contain a clear
statement to the effect that appellee, during her lifetime, shall only enjoy usufructuary rights over the
property bequeathed to her, naked ownership thereof being vested in the brothers of the testatrix. As
already stated, it merely provides that upon appellee's death — whether this happens before or after
that of the testatrix — her share shall belong to the brothers of the testatrix.

Article 860 Two or more persons may be substituted for one; and one person for two or more heirs.

Brief or compendious

Article 861 If heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of
the heir who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was
otherwise. If there are more than one substitute, they shall have the same share in the substitution as in the
institution.

Reciprocal substitution

The instituted heirs are also made the substitutes of each other.

Article 863 A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the
obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and
shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted,
and provided further, that the fiduciary or first heir and the second heir are living at the time of the death of
the testator.

Both have already inherited

Enjoyment enjoyed successively

 1st heir - preserve and transmit

2nd or fideicommissary - receives the inheritance

BOTH inherit.

According to the Code Commission, the purpose of fideicommissary substitution is necessary for the
prosperity and prestige of the family, bearing in mind the lack of intelligence and weakness of character of the
descendants to whom the property may go.

Elements of fideicommissary substitution

- There must be a first heir called primarily to take the property upon the testator’s death
- There must be an absolute obligation clearly imposed on the fiduciary to preserve and transmit to a
third person or the second heir the inheritance
- There is a second heir who takes the property subsequently from the fiduciary and must be living at
the time of the testator’s death
- Must be made in an express manner
- Must not burden the legitime (Article 864)
- Must not be conditional
- Furthermore, in the case of Rabadilla v. CA, the Supreme Court held that a fideicommissary
substitution is void if the first heir is not related by first degree to the second heir.

One Degree
- Manresa and Senator Arturo Tolentino express that one degree is meant to mean “one generation”.
Therefore, the substitute may be the parent or child of the first heir and no other person can be the
fideicommissary. Therefore, in Succession Law, there can only be one fideicommissary transmission
such that after the first, there can be no second fideicommissary substitution.

Article 864 A fideicommissary substitution can never burden the legitime.

Article 865 Every fideicommissary substitution must be expressly made in order that it may be valid.

The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than
those which arise from legitimate expenses, credits, and improvements, save in the case where the testator has
provided otherwise.