Reviewer Succession

San Beda College of Law
53
MEMORY AID
IN
CIVIL LAW
SUCCESSION
SUCCESSION
A mode of acquisition by virtue of
which the property, rights and
obligations to the extent of the
value of the inheritance, of a
person are transmitted through his
death to another or others either
by his will or by operation of law.
(Art. 774)
Kinds:
1. Testamentary or Testacy (by will);
2. Legal or intestacy (by operation of law
based on the decedents presumed
will);
3. Mixed (Partly Testamentary and Legal);
and
4. Partition inter vivos (to a certain
degree).
Elements:
1. DECEDENT (subjective element)
2. SUCCESSORS (subjective element)
a. Heirs - those who are called to the
whole or to an aliquot portion of
the inheritance either by will or by
operation of law
1) Voluntary those instituted by
the testator in his will, to
succeed to the inheritance or
the portion thereof of which
the
testator
can
freely
dispose.
2) Compulsory or Forced those
who succeed by force of law to
some
portion
of
the
inheritance, in an amount
predetermined by law, known
as the legitime.
3) Legal or Intestate those who
succeed to the estate of the
decedent who dies without a
valid will, or to the portion of
such estate not disposed of by
will.
b. Devisees or legatees - persons to
whom gifts of real or personal
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property are respectively given by

virtue of a will
NOTE: The distinctions between heirs
and devisees/legatees are significant
in these cases:
1. Preterition (pretermission)
2. Imperfect disinheritance
3. After-acquired properties
4. Acceptance or non-repudiation
of the successional rights.
3. DEATH OF THE DECEDENT (casual
element)
Moment when rights to succeed are
transmitted (Art 777)
However, a person may be presumed
dead for the purpose of opening his
succession (see rules on presumptive
death). In this case, succession is only
of provisional character because there
is always the chance that the absentee
may still be alive.
4. Inheritance (objective element);
NOTE: Whatever may be the time when
actual transmission takes place, succession
takes place in any event at the moment of
the decedents death. (Lorenzo vs.
Posadas 64 Phil 353)
SUCCESSION
Refers to the legal
mode by which
inheritance
is
transmitted to the
persons entitled
to it
INHERITANCE
Refers
to
the
universality
or
entirety of the
property,
rights
and obligations of a
person who died
Inheritance includes:
1. PROPERTY, RIGHTS AND OBLIGATIONS
NOT EXTINGUISHED BY DEATH
General
rules
on
rights
and
obligations extinguished by his death
a) Rights which are purely personal
are by their nature and purpose
intransmissible for they are
extinguished by death (e.g. those
CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon
SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John
Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)

54
MEMORY AID
relating to civil personality, family
rights, discharge of office).
b) Rights which are patrimonial or
relating to property are generally
part of inheritance as they are not
extinguished by death.
c) Rights of obligations are by nature
transmissible and may constitute
part of inheritance both with
respect to the rights of the
creditor and as regards to the
obligations of the debtor.
2. ALL WHICH HAVE ACCRUED THERETO
SINCE THE OPENING OF SUCCESSION
(Article 781 Civil Code)
I. TESTAMENTARY SUCCESSION
A. CONCEPT
WILL - an act whereby a person is
permitted, with the formalities prescribed
by law, to control to a certain degree the
disposition of his estate to take effect
after his death (Art. 783)
NOTE: Thus, a document that does not
purport to dispose of ones estate either
by the institution of heirs or designation of
devisees/legatees
or, indirectly, by
effecting a disinheritance, is not to be
governed by the law on testamentary
succession but by some other applicable
laws.
Kinds of Wills:
1. Notarial or ordinary
2. Holographic
Characteristics of a Will:
1. UNILATERAL
2. STRICTLY PERSONAL ACT - The
disposition of property is solely
dependent upon the testator.
NOTE: The following acts MAY NOT be left
to the discretion of a third person:
(Article 785, 787 Civil Code)
duration or efficacy of the designation of
heirs, devisees or legatees;
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determination of the portions which they

are to take, when referred to by
name; and
determination of whether or not the
testamentary disposition is to be
operative.
NOTE: However, the following acts MAY be
entrusted to a third person: (Article 786
Civil Code)
a. distribution of specific property or
sums of money that he may leave in
general to specified classes or causes;
and
b. designation of the persons,
institutions or establishments to which
such property or sums are to be given
or applied.
3. FREE AND VOLUNTARY ACT Any vice
affecting the testamentary freedom can
cause the disallowance of the will.
4. FORMAL AND SOLEMN ACT The
formalities are essential for the validity of
the will.
5. ACT MORTIS CAUSA
6. AMBULATORY AND REVOCABLE DURING
THE TESTATORS LIFETIME
7. INDIVIDUAL ACT Two or more persons
cannot make a single joint will, either for
their reciprocal benefit or for another
person. However, separate or individually
executed wills, although containing
reciprocal provisions (mutual wills), are
not prohibited, subject to the rule on
disposicion captatoria.
8. DISPOSITION OF PROPERTY
B. INTERPRETATION OF WILLS (ARTS. 788792)
The testators intent (animus testandi), as
well as giving effect to such intent, is
primordial. It is sometimes said that the
supreme law in succession is the intent of
the testator. All rules of construction are
designed to ascertain and give effect to
that intention. It is only when the
intention of the testator is contrary to law,
morals, or public policy that it cannot be
given effect.
In case of doubt, that interpretation by
which the disposition is to be operative
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55
MEMORY AID
shall be preferred. That construction is to
be adopted which will sustain and uphold
the will in all its parts, if it can be done
consistently with the established rules of
law.
Kinds of Ambiguities: (Article 786)
1. LATENT OR INTRINSIC AMBIGUITIES that
which does not appear on the face of the
will and is discovered only by extrinsic
evidence.
2. PATENT OR EXTRINSIC AMBIGUITIES
that which appears on the face of the will
itself
NOTES:
There is no distinction between patent
and latent ambiguities, in so far as the
admissibility of parol or extrinsic
evidence
to
aid
testamentary
disposition is concerned.
Extrinsic
evidence
to
explain
ambiguities in a will cannot include
oral declarations of the testator as to
his intention.
The validity of a will as to its form
depends upon the observance of law in
force at the time it is made. (Art.
795).
If a law different from the law in force
at the time of the execution of the
will goes into effect before or after
the death of the testator, such a law
shall not affect the validity of the will,
provided that such will was duly
executed In accordance with the
formalities prescribed by law in force
at the time it was made.
AFTER-ACQUIRED PROPERTY (Art. 793)
Gen. Rule: Property acquired during the
period between the execution of the will
and the death of the testator is NOT
included among the property disposed of.
Exception: When a contrary intention
expressly appears in the will
NOTE: This rule applies only to legacies
and devises and not to institution of heirs.
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C. TESTAMENTARY CAPACITY
refers to the ability as well as the power
to make a will.
- must be present at the time of the
execution of the will.
Requisites:
1. At least 18 years of age
2. Of sound mind, i.e., the ability to
know:
a. the nature of the estate to be
disposed of;
b. the proper objects of his bounty;
and
c. the character of the testamentary
act.
NOTE: The law presumes that the testator
is of sound mind, UNLESS:
a. he, one month or less, before making
his will, was publicly known to be insane;
or
b. was under guardianship at the time of
making his will. (Torres and Lopez de
Bueno vs. Lopez 48 Phil 772)
In both cases, the burden of proving
sanity is cast upon proponents of the will.
Effect of Certain Infirmities:
1. mere senility or infirmity of old age
does not necessarily imply that a
person lacks testamentary capacity;
2. physical infirmity or disease is not
inconsistent
with
testamentary
capacity;
3. persons suffering from idiocy (those
congenitally deficient in intellect),
imbecility (those who are mentally
deficient as a result of disease), and
senile dementia (peculiar decay of the
mental faculties whereby the person
afflicted is reduced to second
childhood) do not possess the
necessary mental capacity to make a
will;
4. an insane delusion which will render
one incapable of making a will may be
defined as a belief in things which do
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56
MEMORY AID
not exist, and which no rational mind
would believe to exist;
5. if the insane delusion touches to
subject
matter
of
the
will,
testamentary disposition is void.
6. a deaf-mute and blind person can
make a will (i.e. Art. 807-808). A blind
man with a sound and disposing mind
can make a holographic will.
7. an intoxicated person or person under
the influence of drugs may make a will
as there is no complete loss of
understanding.
Exception: where the testator has
used intoxicating liquor or drugs
excessively to such an extent as to
impair his mind, so that at the time
the will is executed, he does not know
the extent and value of his property,
or the names of persons who are the
natural objects of his bounty, the
instrument thus executed will be
denied
probate
for
lack
of
testamentary capacity.
D. FORMALITIES OF WILLS
(EXTRINSIC VALIDITY)
COMMON FORMALITIES
1. Every will must be in writing; and
2. Executed in a language or dialect
known to the testator.
SPECIAL FORMALITIES
I. NOTARIAL OR ORDINARY WILL
a. SUBSCRIPTION made 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;
Subscription refers to the manual
act of testator and also of his
instrumental witnesses of affixing
their signature to the instrument.
b. ATTESTATION AND SUBSCRIPTION (evidenced by an attestation clause)
by 3 or more credible witnesses in the
presence of the testator and of one
another;
Attestation consists in the act of
witnesses
of witnessing
the
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execution of the will in order to

see and take note mentally that
such will has been executed in
accordance with requirements
prescribed by law.
ATTESTATION
SUBSCRIPTION
1. an act of the
senses
2. mental act
3. purpose is to
render available
proof during
probate of will
1. an act of the
hand
2. mechanical act
3. purpose is
identification
c. MARGINAL SIGNATURES affixed by the

testator or the person requested by
him to write his name and the
instrumental witnesses of the will on
each and every page thereof, except
the last, on the left margin;
Exceptions to the rule that all of the
pages of the will shall have to be signed
on the left margin by the testator and
witnesses::
(1) in the last page, when the will
consists of two or more pages;
(2) when the will consists of only one
page;
(3) when the will consists of two
pages, the first of which contains all
the testamentary dispositions and is
signed at the bottom by the testator
and the witnesses and the second
contains only the attestation clause
duly signed at the bottom by the
witnesses.
The inadvertent failure of one witness

to affix his signature to one page of a
testament, due to the simultaneous
lifting of two pages in the course of
signing, is not per se sufficient to
justify denial of probate (Icasiano vs.
Icasiano II SCRA 422).
d. PAGE
NUMBERINGS
Written
correlatively in letters placed on the
upper part of each page;
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57
MEMORY AID
NOTE: This is not necessary when all of
the dispositive parts of a will are written
on one sheet only.
e. ACKNOWLEDGMENT Done before a
notary public by the testator and the
instrumental witnesses.
NOTE: The notary public before whom the
will was acknowledged cannot be
considered as the third instrumental
witness since he cannot acknowledge
before himself his having signed the will.
If the third witness were the notary public
himself, he would have to avow, assent, or
admit his having signed the will in front of
himself. To allow such would have the
effect of having only two attesting
witnesses to the will which would be in
contravention of Arts. 805 and 806. (Cruz
vs. Villasor 54 SCRA 31)
It must state the following ESSENTIAL

FACTS:
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1. the number of pages used upon

which the will is written;
HOWEVER, even if number of pages is
omitted in the AC BUT if there is an
acknowledgment clause which states the
number of pages or the will itself
mentioned such number of pages, it may
still be considered valid applying the
Liberal Interpretation of the law. (Tabuada
vs. Rosal)
MANNER OF SIGNING:
The use of any signature, marks or
design intended by the testator to
authenticate
renders
the
will
sufficiently signed by the testator.
A signature by mark will be sufficient
even if at the time of placing it, the
testator knew how to write and is able
to do so.
It is sufficiently signed by writing his
initials, or his first name, or he may
use even an assumed name.
A complete signature is not essential
to the validity of a will, provided the
part of the name written was affixed
to the instrument with intent to
execute it as a will.
ATTESTATION CLAUSE
- memorandum or record of facts wherein
the witnesses certify that the will has
been executed before them, and that it
has been executed in accordance with the
formalities prescribed by law.
Absence of this clause will render the
will a nullity.
IN
2. 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;
When the testator expressly caused
another to sign the formers name,
this fact must be recited in the
attestation clause. Otherwise, the will
is fatally defective. (Garcia vs.
Lacuesta 90 Phil 489)
3. that the witnesses witnessed and
signed the will and all the pages
thereof in the presence of the
testator and of one another.
TEST OF PRESENCE: Not whether they
actually saw each other sign, but
whether they might have seen each
other sign had they chosen to do so
considering their mental and physical
condition and position with relation to
each other at the moment of
inscription
of
each
signature.
(Jaboneta vs. Gustilo)
In the case of an ordinary or attested

will, its attestation clause need not be
written in a language or dialect
known to the testator since it does not
form part of the testamentary
disposition.
The language used in the attestation
clause likewise need not even be
known to the attesting witnesses. Art.
805 merely requires that, in such a
case, the attestation clause shall be
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58
MEMORY AID
interpreted to said witnesses. (Caneda
vs. CA 222 SCRA 781)
Effects of defects or imperfections in the
Attestation Clause:
If the defect of the attestation clause
goes into the very essence of the
clause itself or consists in the omission
of one, some, or all of the essential
facts, and such omission cannot be
cured by an examination of the will
itself, the defect is substantial in
character, as a consequence of which
the will is invalidated.
However, In the absence of bad faith,

forgery, 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 Art. 805
(formal requirements). This is known
as the DOCTRINE OF LIBERAL
INTERPRETATION (Art. 809)
Purposes of requiring witness to attest

and to subscribe to a will:
1. identification of the instrument
2. protection of the testator from fraud
and deception
3. the ascertainment of the testamentary
capacity of the testator.
NOTE:
Certain points to consider
(Tolentino)
1. Mere knowledge by testator that
another is signing, and acquiescing in
it, there being no express direction,
is NOT sufficient.
2. Not required that the name of the
person who writes the testators name
should also appear on the will; enough
that testators name is written.
3. If the required numbers of attesting
witness are competent, the fact that
an additional witness, who was
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incompetent also attested to the will,

cannot impair the validity.
4. Immaterial in what order the acts are
performed provided the signature or
acknowledgment by the testator and
the attestation of the witnesses be
accomplished in one occasion, and as
part of one transaction.
5. The law refers to page and not to
sheet or leaf or folio, so every page
used in the will should be signed on
the left margin.
6. An attestation clause need be signed
ONLY by the witnesses and not by the
testator as it is a declaration made by
the witnesses.
7. date of will:
a. ordinary will: not an essential
part;
b. holographic will: an essential part.
8. Failure or error to state the place of
execution will not invalidate the will.
9. Signing of a will by the testator and
witnesses and acknowledgment before
a notary public, need not be a single
act.
10. Testamentary capacity must also
exist at the time of acknowledgment.
ADDITIONAL REQUIREMENTS FOR SPECIAL
CASES
1. Deaf or deaf-mute testator:
a) personal reading of the will, if
able to do so; OR
b) if not possible, designation of 2
persons to read the will and
communicate to him, in some
practicable manner, the contents
thereof. (Article 807)
2. Blind testator:
Double-reading requirement:
a. first, by one of the subscribing
witnesses, AND
b. second, by the notary public
before
whom
the
will
is
acknowledged. (Article 808)
Art. 808 applies not only to blind
testators but also to those who, for
one reason or another are incapable of
reading their wills (e.g. poor,
defective or blurred vision).
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59
MEMORY AID
In a case where the testator did not

read the final draft of the will, but the
lawyer who drafted the document,
read the same aloud in the presence
of the testator, 3 witnesses, and
notary public, the Court held that the
formal
imperfections
should
be
brushed aside when the spirit behind
the law was served though the letter
was not. (Alvarado vs. Gaviola 226
SCRA 347)
WITNESS TO NOTARIAL WILLS

(ARTS. 820 & 821)
Requirements:
1. of sound mind;
2. able to read and write;
3. not blind, deaf or dumb;
4. at least 18 years of age;
5. domiciled in the Philippines;
6. has not been convicted of falsification
of a document, perjury, or false
testimony
NOTE: A witness need not know the
contents of the will, and need not be
shown to have had a good standing in the
community where he lives. Also, the
acknowledging notary public cannot be
one of the 3 minimum numbers of
witnesses.
Interested witness
A witness to a will who is
incapacitated from succeeding from
the testator by reason of a
devise/legacy or other testamentary
disposition therein in his favor, or in
favor of his spouse, parent, or child.
However, his competence as a witness
subsists.
2. HOLOGRAPHIC WILL (Article 810)
a. entirely written by the hand of the
testator;
b. entirely dated by the hand of the
testator; and
c. entirely signed by the hand of the
testator.
NOTE: The law exacts literal compliance
with these requirements. HENCE, THE
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DOCTRINE OF LIBERAL INTERPRETATION

CANNOT BE APPLIED.
Nevertheless, the Court held in a case

that as a general rule, the date in a
holographic will should include the
day, month, and year of its execution.
However, when there is no appearance
of fraud, bad faith, undue influence
and pressure and the authenticity of
the will is established and the only
issue is whether or not the date
FEB./61 appearing on the will is a
valid compliance with Art. 810,
probate of the holographic will should
be allowed under the principle of
substantial compliance. (In the matter
of Intestate Estate of Andres de Jesus
and Bibiana Roxas de Jesus, 134 SCRA
245)
Rule in case of insertion, cancellation,

erasure or alteration:
Testator must authenticate the same
by his FULL SIGNATURE. (Article 814)
NOTE: In the case of Kalaw vs. Relova
(134 SCRA 241), the holographic will in
dispute had only one substantial provision,
which was altered by substituting the
original heir with another, but which
alteration did not carry the requisite of
full authentication by the full signature of
the testator, the effect must be that the
entire will is voided or revoked for the
simple reason that nothing remains in the
will after that which could remain valid.
Effects of words written by another and
inserted in the words written by the
testator:
a. If the insertion was made after the
execution of the will, but without the
consent of the testator, such insertion
is considered as not written, because
the validity of the will cannot be
defeated by the malice or caprice of
third person.
b. If the insertion after the execution of
the will was with the consent of the
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60
MEMORY AID
testator, the will remains valid but
the insertion is void.
c. If the insertion after the execution is
validated by the testator by his
signature thereon, then the insertion
becomes part of the will, and the
entire will becomes void, because of
failure
to
comply
with
the
requirement that it must be wholly
written by the testator.
d. If the insertion made by a third person
is made contemporaneous to the
execution of the will, then the will is
void because it is not written entirely
by the testator.
Probate of Holographic Will
1. If UNCONTESTED, requires that at
least 1 witness who knows the
handwriting and signature of the
testator explicitly declare that the will
and signature are in the handwriting of
the testator; if no witness, expert
testimony may be resorted to.
2. If CONTESTED, requires at least 3 of
such credible witnesses, if none expert
witness.
NOTE: Where the testator himself
petitions for the probate of his holographic
will and no contest is file, the fact that he
affirms that the holographic will and the
signature are in his own handwriting, shall
be sufficient evidence thereof. If the
holographic will is contested, the burden
of disproving the genuineness and due
execution thereof shall be on the
contestant.
A photostatic or xerox copy of a lost or

destroyed holographic will may be
admitted because the authenticity of
the handwriting of the deceased can
be determined by the probate court,
as comparison can be made with the
standard writings of the testator.
(Rodelas vs. Aranza, 119 SCRA 16)
GOVERNING LAW ON FORMALITIES

1. As to time:
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The validity of a will as to its form

depends upon the observance of the
law in force at the time it is made.
Its intrinsic validity, however, is
judged at the time of the decedents
death by the law of his nationality.
2. As to place:
a. Filipino testator executing a will in the
Philippines: Philippine law
b. Filipino testator executing a will
outside of the Philippines: either
1) The law of the country in which it
is executed; or
2) The law of the Philippines.
c. Alien testator executing a will in the
Philippines: either
1) The law of the Philippines; or
2) The law of the country of which he
is a citizen or subject.
d. Alien testator executing a will outside
of the Philippines: either
1) The law of the place where it is
executed; or
2) The law of the place in which he
resides; or
3) The law of his country; or
4) The law of the Philippines.
Aspects of the will governed by National
Law of the Decedent (Article 1039 and
Article 16 Civil Code)
a. Order of succession
b. Amount of successional rights
c. Intrinsic validity
d. Capacity to succeed
Joint will a single testamentary
instrument which contains the wills of two
or more persons, jointly executed by
them, either for their reciprocal benefit or
for the benefit of a third person
--will of 2 or more persons is made in the
same instrument and is jointly signed by
them
Mutual wills wills executed pursuant to
an agreement between two or more
persons to dispose of their property in a
particular manner, each in consideration of
the other
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61
MEMORY AID
--separate wills of 2 persons, which are
reciprocal in their provisions.
Reciprocal wills- wills in which the
testators name each other as beneficiaries
under similar testamentary plans
NOTE: A will that is both joint and mutual
is one executed jointly by two or more
persons, the provisions of which are
reciprocal and which shows on its face
that the devises are made in consideration
of the other. Such is prohibited.
Reasons:
1. will is purely personal and unilateral
act
2. contrary to the revocable character of
a will
3. may expose the testator to undue
influence, and may even induce one of
the testators to kill the other.
NOTE: Joint wills executed by Filipinos in
a foreign country shall not be valid in the
Philippines, even though authorized by the
foreign country in which they may have
been executed (Article 819 Civil Code).
This prohibition is applicable
only in joint wills executed by Filipinos in
a foreign country; it does NOT APPLY to
joint wills executed by aliens.
E. CODICIL AND
REFERENCE
INCORPORATION
BY
CODICIL
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. (Article 825)
NOTE:
To be effective, it must be
executed as in the case of a will. Its
execution has the effect of republishing
the will as modified.
INCORPORATION BY REFERENCE
(ART 827)
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Contemplates only lists of properties,

books of accounts, and inventories.
Provisions which are in the nature of
testamentary dispositions must be
contained in the will itself.
Requisites for a valid incorporation by

reference: (ART 827)
1. The document or paper referred to in
the will must be in existence at the
time of the execution of the will;
2. The will must clearly describe and
identify the same, stating among other
things the number of pages thereof;
3. It must be identified by clear and
satisfactory proof as the document or
paper referred to therein;
4. It must be signed by the testator and
the witnesses on each and every page,
except in case of voluminous books of
account or inventories.
F.
REVOCATION
OF
WILLS
TESTAMENTARY DISPOSITIONS
AND
REVOCATION
An act of the mind, terminating the
potential capacity of the will to
operate at the death of the testator,
manifested by some outward or visible
act or sign, symbolic thereof. Such
right to revoke a will cannot be waived
or restricted.
LAWS WHICH GOVERN REVOCATION (ART
829)
1. If the revocation takes place in the
Philippines, whether the testator is
domiciled in the Philippines or in
some other country, it is valid when it
is in accordance with the laws of the
Philippines
2. If the revocation takes place outside
the Philippines, by a testator who is
domiciled in the Philippines, it is valid
when it is in accordance with the laws
of the Philippines
3. Revocation
done
outside
the
Philippines, by a testator who does
not have his domicile in this country,
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62
MEMORY AID
is valid when it is done according to
the:
a. laws of the place where the will
was made, or
b. laws of the place in which the
testator had his domicile at the
time of revocation;
MODES OF REVOCATION (ART 830)
1. By implication of law:
a. legal
separation
revokes
testamentary provisions in favor of
the offending spouse;
b. preterition revokes the institution
of heir;
c. judicial action for recovery of debt
revokes
a
legacy
of
credit/remission of debt;
d. transformation, alienation, or loss
of bequeathed property revokes a
legacy of such property;
e. act of unworthiness by an heir,
devisee/legatee
revokes
testamentary provisions in his
favor;
f. if both spouses of the subsequent
marriage acted in bad faith, said
marriage shall be void ab initio
and testamentary dispositions
made by one in favor of the other
are revoked by operation of law
(Art. 44, Family Code); and
g. void ab initio or annulled
marriages revoke testamentary
dispositions made by one spouse in
favor of the other (Art. 50, Family
Code).
2. By some will, codicil, or other writing,
executed as provided in case of wills,
which may either be:
a. Express when there is a
revocatory
clause
expressly
revoking the previous will or a part
thereof
b. Implied when the provisions
thereof are partially or entirely
inconsistent with those of the
previous will
NOTE: While express revocation may be
effected by a subsequent will, or a codicil,
or a nontestamentary writing executed as
provided in case of wills, implied
CIVIL LAW COMMITTEE
IN
CIVIL LAW
revocation may be effected only by either

a subsequent will, or a codicil.
3. By burning, tearing, cancelling, or
obliterating the will.
Requisites:
a. testamentary capacity at the time
of
performing
the
act
of
destruction;
b. intent
to
revoke
(animus
revocandi);
c. actual physical act of destruction;
d. completion of the subjective
phase; and
e. performed by the testator himself
or by some other person in his
presence and express direction
(THE LIST IS EXCLUSIVE.)
NOTE: The act of revocation is a personal
act of the testator. He cannot delegate to
an agent the authority to do the act for
him. Another person, however, may be
selected by him as an instrument and
directed to do the revocatory acts in his
presence. A destruction not accomplished
in the testators presence is an ineffective
revocation of the will.
DOCTRINE OF PRESUMED REVOCATION
Whenever it is established that the
testator had in his possession or had
ready access to the will, but upon his
death it cannot be found or located,
the presumption arises that it must
have been revoked by him by an overt
act.
Where it is shown that the will was in
custody of the testator after its
execution, and subsequently, it was
found among the testators effects
after his death in such a state of
mutilation, cancellation or obliteration
as represents a sufficient act of
revocation, it will be presumed in the
absence of evidence to the contrary,
that such act was performed by the
testator with the intention of revoking
the will.
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63
MEMORY AID
DOCTRINE OF DEPENDENT RELATIVE
REVOCATION (ART 832)
A revocation subject to a condition
does not revoke a will unless and until
the condition occurs. Thus, where a
testator revokes a will with the
proven intention that he would
execute another will, his failure to
validly make a latter will would permit
the allowance of the earlier will.
Where the act of destruction is

connected with the making of another
will so as fairly to raise the inference
that the testator meant the revocation
of the old to depend upon the efficacy
of the new disposition intended to be
substituted, the revocation will be
conditional and dependent upon the
efficacy of the new disposition; and if
for any reason, the new will intended
to be made as a substitute is
inoperative, the revocation fails and
the original will remains in full force
(Vda. De Molo vs. Molo 90 Phil 37).
Revocation by mistake
A revocation of a will based on a false
cause or an illegal cause is null and
void. Thus, where a testator by a
codicil or later will, expressly
grounding such revocation on the
assumption of fact which turns out to
be false, as where it is stated that the
legatees/devisees named therein are
dead, when in fact, they are living,
the revocation does not take effect.
G. REPUBLICATION
WILLS
AND
REVIVAL
OF
REPUBLICATION
The act of the testator whereby he
reproduces in a subsequent will
(express) the dispositions contained in
a previous will which is void as to its
form, or he executes a codicil
(constructive) to his will.
Its purpose is to cure the will of its
formal defects.
CIVIL LAW COMMITTEE
IN
CIVIL LAW
NOTES:
To republish a will void as to its form,
all
the
dispositions
must
be
reproduced or copied in the new or
subsequent will;
To republish a will valid as to its form
but already revoked the execution of a
codicil which makes reference to the
revoked will is sufficient.
Effects of Republication by virtue of a
Codicil:
1. Codicil revives the previous will
2. The old will is republished as of the
date of the codicil makes it speak, as
it were, from the new and later date.
3. A will republished by a codicil is
governed by a statute enacted to the
execution of the will, but which was
operative when the codicil was
executed.
REPUBLICATION
REVIVAL
1. Takes place by an
act of the testator
1. Takes place by
operation of law.
2. Corrects extrinsic
and
intrinsic
defects.
2. Restores a revoked
will
REVIVAL
The restoration to validity of a will
previously revoked by operation of law
(implied revocation).
PRINCIPLE OF INSTANTER
The express revocation of the first will
renders it void because the revocatory
clause of the second will, not being
testamentary in character, operates to
revoke the previous will instantly upon
the execution of the will containing it.
NOTE: In implied revocation, the first will
is not instantly revoked by the second will
because the inconsistent testamentary
dispositions of the latter do not take
effect immediately but only after the
death of the testator.
H. ALLOWANCE AND DISALLOWANCE OF
WILLS
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64
MEMORY AID
PROBATE
A special proceeding mandatorily
required
for
the
purpose
of
establishing the validity of a will.
The statute of limitations is not
applicable to probate of wills.
Questions determinable by the probate
court: (ICE)
1. identity of the will;
2. testamentary capacity of the testator
at the time of the execution of the
will; and
3. due execution of the will.
GENERAL RULE: In probate proceeding,

the courts area of inquiry is limited to an
examination of, and resolution on the
extrinsic validity if the will, the due
execution
thereof,
the
testatrixs
testamentary capacity and the compliance
with the requisites or solemnities
prescribed by law. The probate court
cannot inquire into the intrinsic validity of
testamentary provisions.
EXCEPTION: Practical considerations,
e.g. when the will is intrinsically void on
its face.
In Nuguid vs Nuguid (17 SCRA 449), the

Supreme Court held that, if the case
were to be remanded for probate of
the will, nothing will be gained. On
the contrary, this litigation would be
protracted.
And for aught that
appears in the record, in the event of
probate or if the court rejects the
will, probability exists that the case
will come up once again before us on
the same issue of the intrinsic validity
or nullity of the will. RESULT: waste of
time, effort, expense, plus added
anxiety.
In Nepomuceno vs CA (139 SCRA 207),
the Court ruled that the court can
inquire as to the intrinsic validity of
the will because there was an express
CIVIL LAW COMMITTEE
IN
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statement that the beneficiary was a

mistress.
NOTES:
Criminal action will not lie against the
forger of a will which had been duly
admitted to probate by a court of
competent jurisdiction. (Mercado vs.
Santos 66 Phil. 215)
The fact that the will has been

allowed without opposition and the
order allowing the same has become
final and executory is not a bar to the
presentation of a codicil, provided it
complies with all the formalities for
executing a will. It is not necessary
that the will and codicil be probated
together as the codicil may be
concealed by an interested party.
They may be probated one after the
other. (Macam vs. Gatmaitan 60 Phil
358)
When a will is declared void because it

has not been executed in accordance
with the formalities required by law,
but one of the intestate heirs, after
the settlement of the debts of the
deceased, pays a legacy in compliance
with a clause in the defective will, the
payment is effective and irrevocable
(Article
1430,
NCC;
Natural
Obligations).
Grounds for Disallowance of a Will (ART

839)
1. Formalities required by law have not
been complied with;
2. Testator was insane, or otherwise
incapable of making a will, at the time
of its execution;
3. Will was executed through force or
under duress, or the influence of fear,
or threats;
4. Will was procured by undue and
improper pressure and influence, on
the part of the beneficiary or of some
other person;
5. Signature of the testator was procured
by fraud;
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65
MEMORY AID
6. 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.
NOTE: GROUNDS ARE EXCLUSIVE.
Fair arguments, persuasion, appeal to

emotions, and entreaties which,
without fraud or deceit or actual
coercion, compulsion or restraint do
not
constitute
undue
influence
sufficient to invalidate a will. (Barreto
vs. Reyes 98 Phil 996)
Burden is on the person challenging
the will to show that such influence
was exerted at the time of its
execution.
To make a case of UNDUE INFLUENCE,
the free agency of the testator must
be shown to have been destroyed; but
to establish a ground of contest based
on FRAUD, free agency of the testator
need not be shown to have been
destroyed.
Allegations of fraud and undue
influence are mutually repugnant and
exclude each other; their joining as
grounds for opposing probate shows
absence of definite evidence against
the validity of the will (Icasiano vs.
Icasiano 11 SCRA 422)
REVOCATION
DISALLOWANCE
1. voluntary act of
the testator.
1. given by judicial
decree.
2. with or without
cause.
2. must always be
for a legal cause.
3. may be partial or
total.
3. always total
except: when the
ground of fraud or
influence
for
example
affects
only
certain
portions of the
will.
I. INSTITUTION OF HEIRS
(ARTS. 840-856)
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IN
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INSTITUTION
An act by virtue of which a testator
designates in his will the person or
persons who are to succeed him in his
property and transmissible rights and
obligations. (Art 840)
The proper test in order to determine
the validity of an institution of heir is
the possibility of finally ascertaining
the identity of the instituted heir by
intrinsic or extrinsic evidence.
PRESUMPTIONS
1. Presumption of Equality Heirs
instituted without designation of
shares shall inherit in equal parts.
This is limited only to the case where
all of the heirs are of the same class or
juridical condition, and where there
are compulsory heirs among the heirs
instituted, it should be applied only to
the disposable free portion.
2. Presumption of Individuality When
the testator institutes some heirs
individually and others collectively,
those collectively designated shall be
considered as individually instituted,
unless it clearly appears that the
intention of the testator was
otherwise.
3. Presumption of Simultaneity when
the testator calls to the succession a
person and his children, they are all
deemed to have been instituted
simultaneously and not successively.
INSTITUTION BASED ON A FALSE CAUSE
(Article 850)
GENERAL RULE: The statement of a false
cause for the institution of an heir shall be
considered as not written.
Reason: Generosity of the testator is
the real cause of the testamentary
disposition.
EXCEPTION: If it appears from the face
of the will that the testator would not
have made the institution had he known
the falsity of the cause.
Example: Where the person instituted
is a total stranger to the testator, it is
obvious that the real cause of the
Stephen

66
MEMORY AID
IN
CIVIL LAW
testamentary disposition is not the

generosity of the testator but the fact
itself which turned out to be false.
under Art. 906, in case the value of

the property received is less than the
value of the legitime.
REQUISITES FOR THE ANNULMENT OF

INSTITUTION OF HEIRS:
1. cause of institution of heirs must be
stated in will;
2. cause must be shown to be false;
3. it must appear from the face of the
will that the testator would not have
made the institution had he known the
falsity of the cause.
Effects of Preterition:
1. It annuls the institution of heir;
2. The devises and legacies are valid
insofar as they are not inofficious; and
3. If the omitted compulsory heir should
die before the testator, the institution
shall be effectual, without prejudice
to the right of representation.
NOTE:
In case of omission without
preterition, the rule in Art. 855 should be
followed. The suggested alternate phrasing
of Dr. Tolentino to the said article is: The
share of the compulsory heir omitted in a
will must be first taken from the part of
the estate not disposed of by the will, if
any; if that is not sufficient, so much as
may be necessary must be taken
proportionally from the shares of the
heirs given to them by will.
Where the one-sentence will

institutes the petitioner as the sole,
universal heir and preterits the
parents of the testatrix, and it
contains no specific legacies or
bequests, such universal institution of
petitioner, by itself, is void. Intestate
succession ensues.
(Nuguid vs.
Nuguid, et al. 17 SCRA 449)
PRETERITION (ART. 854)

Omission in the testators will 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.
Requisites:
1. The heir omitted must be a
compulsory heir in the direct line;
2. The omission must be complete and
total in character; and
3. The compulsory heir omitted must
survive the testator.
There is no total omission when:
a. A devise/legacy has been given to
the heir by the testator
b. A donation inter vivos has been
previously given to the heir by the
testator; or
c. Anything
is left
from
the
inheritance which the heir may get
by way of intestacy.
NOTE: In the above cases, the remedy
of the heir is completion of legitime
CIVIL LAW COMMITTEE
PRETERITION
DISINHERITANCE
1. deprivation of a
compulsory heir of
his legitime is tacit
1. deprivation of a
compulsory heir of
his
legitime
is
express.
2. may be voluntary
but
the
law
presumes that it is
involuntary
2.
voluntary.
3. law presumes
that there has been
merely an oversight
or mistake on the
part of the testator.
3. done with
legal cause.
4. omitted heir gets

not only his legitime
but also his share in
the free portion not
disposed of by way
of legacies/ devises.
4. if disinheritance
is
not
lawful,
compulsory heir is
merely restored to
his legitime.
always
Where
the
deceased
left
no
descendants,
legitimate
or
illegitimate, but she left forced heirs
in the direct ascending lineher
parents, and her holographic will does
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67
MEMORY AID
not explicitly disinherit them but
simply omits them altogether, the case
is one of preterition of parents, not a
case of ineffective disinheritance.
(Nuguid vs. Nuguid 17 SCRA 449)
NOTE: Preterition of the surviving spouse
(SS) does not entirely annul the institution
of the heir since SS is not a compulsory
heir in the direct line. However, since
Article 842 protects the legitime of the SS,
the institution is partially annulled by
reducing the rights of the instituted heir
to the extent necessary to cover the
legitime of SS. (Tolentino)
EFFECT OF PREDECEASE
--an heir who dies before the testator shall
transmit no right to his own heirs (rule is
absolute with respect to a voluntary heir)
--what
is
transmitted
to
the
representatives of compulsory heir is his
right to the legitime and not to the free
portion
EFFECT OF INCAPACITY
--A voluntary heir who is incapacitated to
succeed from testator shall transmit no
right to his own heirs.
--compulsory heir may be represented, but
only with respect to his legitime
EFFECT OF REPUDIATION
--whether voluntary or compulsory, the
heir who repudiates his inheritance cannot
transmit any right to his own heirs.
J. SUBSTITUTION OF HEIRS
(ARTS 857-870)
SUBSTITUTION
The act by which the testator
designates the person or persons to
take the place of the heir or heirs first
instituted (Tolentino). It may be
considered as a subsidiary and
conditional institution.
Kinds:
1. Simple or Common (that which takes
place when the testator designates
one or more persons to substitute the
heirs/s instituted in case such heir/s
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IN
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should die before him, or should not

wish, or should be incapacitated to
accept the inheritance)
2. Brief or Compendious: brief (there
are two or more persons designated by
the testator to substitute for only one
heir), compendious (one heir is
designated to take the place of two or
more heirs)
Instances when substitution takes
place:
a. instituted heir predeceases the
testator;
b. incapacity of the instituted heir to
succeed from the testator; and
c. repudiation of the inheritance.
Effect of substitution:
General rule: once the substitution
has taken place, the substitute shall
not only take over the share that
would have passed to the instituted
heir, but he shall be subject to the
same charges and conditions imposed
upon such instituted heir.
Exceptions:
(1) When the testator has expressly to
the contrary;
(2) When the charges or conditions are
personally applicable only to the heir
instituted.
3. Fideicommissary
Requisites:
a. First heir (fiduciary) called to the
succession.
b. An obligation clearly imposed upon
such first heir to preserve the property
and to transmit it to the second heir.
c. Second heir (fideicommissary) to
whom the property is transmitted by
the first heir.
Without
the
obligation
clearly
imposing upon the first heir the
preservation of the property and its
transmission to the second heir, there
is no fideicommissary substitution
(Rabadilla vs. CA 334 SCRA 522)
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68
MEMORY AID
NOTE: Pending transmission of property,
the fiduciary is entitled to all the rights of
a
usufructuary,
although
the
fideicommissary is entitled to all the rights
of a naked owner.
Limitations:
a. Substitution must not go beyond one
degree from the heir originally
instituted.
b. Degree
means
degree
of
relationship.
c. Fiduciary and fideicommissary must be
living at the time of the death of the
testator.
d. Substitution must not burden the
legitime of compulsory heirs.
e. Substitution must be made expressly.
A fideicommissary substitution is void
if the first heir is not related in the 1 st
degree to the second heir (Ramirez vs.
Vda. De Ramirez 111 SCRA 704)
K. CONDITIONAL, MODAL TESTAMENTARY
DISPOSITIONS,
AND
TESTAMENTARY
DISPOSITIONS WITH A TERM (ART 871-885)
GENERAL RULE: The institution of an

heir may be made 1) conditionally, 2) for a
term, or 3) for a certain purpose or cause
(modal). Conditions, terms, and modes
however, are not presumed; they must be
clearly expressed in the will.
The
condition must fairly appear from the
language of the will. Otherwise, it is not
binding.
LIMITATIONS:
1. The testator cannot impose any
charge,
burden,
encumbrance,
condition, or substitution whatsoever
upon the legitime of compulsory heirs.
2. Impossible conditions and those
contrary to law or good customs are
presumed to have been imposed
erroneously or through oversight, thus,
are considered as not imposed.
3. An absolute condition not to contract
a first marriage is always void and will
be considered as not written.
CIVIL LAW COMMITTEE
IN
CIVIL LAW
4. An absolute condition not to contract

a subsequent marriage is generally
void, unless imposed upon a widow or
widower by the deceased spouse or by
the
latters
ascendants
or
descendants. Even so, however, the
legitime of the surviving spouse
cannot be impaired.
An absolute condition not to contract

marriage when validly imposed is
resolutory in character. Consequently,
if the testator institutes his wife as
heir subject to the condition that she
will
never
marry
again,
she
immediately acquires a right to the
inheritance upon the death of testator,
but if she violates the condition by
contracting a 2nd marriage, she loses
her right to said inheritance.
NOTE: However, the following relative

conditions regarding marriage have been
considered as valid and binding:
a. generic condition to contract
marriage;
b. specific condition to contract
marriage with a determinate
person; and
c. specific condition not to contract
marriage with a determinate
person.
5. Any disposition made upon the
condition that the heir shall make
some provisions in his will in favor of
the testator or of any other person
shall
be
void
(disposicion
captatoria).
6. Conditions imposed by the testator
upon the heirs shall be governed by
the rules established for conditional
obligations in all matters not provided
for by the law on succession.
Kinds of Conditions
1. Potestative Condition depends
exclusively upon the will of the heir,
devisee, or legatee, and must be
performed by him personally.
Stephen

69
MEMORY AID
2. Causal Condition depends upon the
will of the heir, devisee, or legatee,
but upon the will of a third person.
3. Mixed depends jointly upon the will
of the heir, devisee, or legatee and
upon chance and/or will of a third
person.
Fulfillment of Conditions:
1. Potestative Conditions
must be
fulfilled after the death of the
testator (except when it has already
been fulfilled and is of such nature
that it cannot be repeated);
2. Causal or mixed conditions may be
fulfilled either before or after such
death, unless the testator has
provided otherwise.
MODAL INSTITUTION (INSTITUCION SUB

MODO)
Attachment by the testator to an
institution of heir, or to a devise or
legacy, of a statement of the:
a. object of the institution;
b. application of the property left by
testator; or
c. charge imposed by him.
NOTES:
When in doubt as to whether there is a
condition or merely a mode, consider
the same as mode.
When in doubt as to whether there is a
mode or merely a suggestion, consider
same only as a suggestion.
The condition suspends but does not
obligate; the mode obligates but
does not suspend (for he who inherits
with a mode is already an heir; one
who inherits conditionally is not yet an
heir)
DOCTRINE
of
CONSTRUCTIVE
FULFILLMENT: When without the fault of
the fault of the heir, an institucion sub
modo cannot take effect in the exact
manner stated by the testator, it shall be
CIVIL LAW COMMITTEE
IN
CIVIL LAW
complied with in a manner most analogous

to and in conformity with his wishes.
NOTE:
If the condition is casual, the doctrine
is not applicable since the fulfillment
of the event which constitutes the
condition is independent of the will of
the heir, devisee/legatee.
If the
condition is potestative or mixed, the
doctrine is applicable.
L. LEGITIMES (ARTS 886 914)
LEGITIME
That part of the testators property
which he cannot dispose of because
the law has reserved it for certain
heirs who are, therefore, called
compulsory heirs.
The course of action to enforce a

legitime accrues upon the death of the
donor-decedent since it is only then
that the net estate may be ascertained
and on which basis, the legitime may
be determined. (Imperial vs. CA 316
SCRA 313)
NOTE: One half of the estate is always

reserved for the primary or secondary
compulsory heirs. The other half is what is
termed under the NCC as the free
portion from which the legitime of the
concurring compulsory heirs are taken.
This free portion is different from the
disposable free portion over which the
testator has testamentary control. The
disposable free portion is that which
remains after the legitime has been
covered.
COMPULSORY HEIRS (CH)
Those for whom the legitime is
reserved by law, and who succeed
whether the testator likes it or not.
They cannot be deprived by the
testator of their legitime except by
disinheritance properly effected.
Stephen

70
MEMORY AID
Kinds of Compulsory Heirs:
1. Primary those who have precedence
over and exclude other CH. E.g. LCD.
2. Secondary those who succeed only
in the absence of the primary CH. E.g.
LPA or IP.
3. Concurring those who succeed
together with the primary or
secondary CH. E.g. ICD and SS.
If the testator is
a LEGITIMATE
person
If the testator is
an ILLEGITIMATE
person
1.
Legitimate
children
and
descendants
(LCD)
1.
In default of
the foregoing,
legitimate
parents
and
ascendants
(LPA)
2.
Surviving
spouse (SS)
3.
2.
3.
4.
Illegitimate
children
and
descendants
(ICD)
4.
Legitimate
children
and
descendants
(LCD)
Surviving
spouse (SS)
TABLE OF LEGITIMES
SURVIVOR
LEGITIME
NOTES
LC
1 LC
SS
2 or more
LC
SS
equal to 1
LC
LC
IC
of 1 LC
LC
SS
IC
of 1 LC
All
the
concurring CH
get from the
half
free
portion, the
share of the
SS
having
preference
over that of
the IC, whose
share
may
suffer
reduction pro
rata because
there is no
preference
among
themselves.
LPA
Whether they
survive alone
NOTES:
See Sections 17 & 18 of R.A. 8552.
By force of the Family Code, adopted
children are deemed legitimate
children of the adopters.
By force of the Family Code, IC
without distinction and so long as their
filiation is duly established or proved
in accordance with law, are each
entitled to 1/2 of the legitime of a LC,
thus abrogating the 5:4 ratio between
natural and non-natural IC.
RULES:
1. Direct descending line
CIVIL LAW COMMITTEE
CIVIL LAW
a. Rule of preference between lines

b. Rule of proximity
c. Right
of
representation
ad
infinitum in case of predecease,
incapacity, or disinheritance (LC:
LD only; IC: both LD and ID)
d. If all the LC repudiate their
legitime, the next generation of
LD succeed in their own right
2. Direct ascending line
a. Rule of division by lines
b. Rule of equal division
3. Non-impairment of legitime
Illegitimate
children and
descendants
(ICD)
In default of
the foregoing,
illegitimate
parents
only
(IP)
IN
Divide by the
#
of
LC,
whether they
survive alone
or
with
concurring
CH.
Stephen

71
MEMORY AID
or
with
concurring
CH.
LPA
IC
LPA
SS
LPA
SS
IC
1/8
IC
SS
IC
1/3
1/3
SS
IC succeed in
the
in
equal shares.
Divide equally
among the IC.
1/3
if
marriage is in
articulo
mortis
and
deceased
spouse
dies
within 3 mos.
after
the
marriage.
IP
IP
Any child
-excludedIt depends
Children
inherit in the
amounts
established in
the foregoing
rules.
IP
SS
Only
the
parents are of
IC
are
included.
Grandparents
and
other
ascendants
are excluded.
STEPS IN DETERMINING THE LEGITIME OF

COMPULSORY HEIRS:
CIVIL LAW COMMITTEE
IN
CIVIL LAW
1. Determination of the gross value of

the estate at the time of the death of
the testator;
2. Determination of all debts and
charges which are chargeable against
the estate;
3. Determination of the net value of the
estate by deducting all the debts and
charges from the gross value of the
estate;
4. Collation or addition of the value of
all donations inter vivos to the net
value of the estate;
5. Determination of the amount of the
legitime from the total thus found;
6. Imputation of the value of all
donations inter vivos made to
compulsory heirs against their legitime
and of the value of all donations inter
vivos made to strangers against the
disposable free portion and restoration
to the hereditary estate if the
donation is inofficious; and
7. Distribution of the residue of the
estate in accordance with the will of
the testator
COLLATION
1. Fictitious mathematical process of
adding the value of the thing donated
to the net value of the hereditary
estate (Art. 908 and Arts. 1061-1077).
2. Act of charging or imputing such value
against the legitime of the compulsory
heir to whom the thing was donated
(Arts. 1061-1077).
3. Actual act of restoring to the
hereditary estate that part of the
donation which is inofficious in order
not to impair the legitime of
compulsory heirs.
RESERVA TRONCAL (ART 891)
The reservation by virtue of which an
ascendant who inherits from his
descendant any property which the
latter may have acquired by gratuitous
title from another ascendant or a
brother or sister, is obliged to reserve
such property for the benefit of
relatives who are within the 3rd degree
Stephen

72
MEMORY AID
IN
CIVIL LAW
and who belong to the line from which

such property came.
It constitutes as an exception to both
the system of legitime and the order
of intestate succession.
Purposes:
1. To reserve certain property in favor of
certain persons;
2. To prevent persons outside a family
from acquiring, by some chance or
accident, property which otherwise
would have remained with the said
family;
3. To maintain a separation between
paternal and maternal lines.
NOTE: Considering the rationale for
reserva troncal which is to ultimately
revert ownership of property that
originally belongs to a line of relatives but
which by force of law passes to a different
line, the reserva would have no reason to
arise where the ascendants who acquire
the property themselves belong to the line
of relatives from which the property was,
in turn, acquired by the descendant.
operation of law (e.g. by way of

legitime or intestate succession). The
so-called arbiter of the fate of the
reserva troncal.
3. Reservista the ascendant, not
belonging to the line from which the
property came (Justice Vitug) that is
the only compulsory heir and is obliged
to reserve the property.
NOTE: Dr. Tolentino is of the view that
even if the reservista and the originator
belong to the same line, there is still an
obligation to reserve.
4. Reservatarios the relatives of the
propositus within the 3rd degree and
who belong to the line from which the
property came and for whose benefit
the reservation is constituted. They
must be related by blood not only to
the propositus but also to the
originator.
Requisites:
1. The property should have been
acquired by operation of law by an
ascendant (reservista) from his
descendant (propositus) upon the
death of the latter.
2. The property should have been
previously acquired by gratuitous title
by the descendant (propositus) from
another ascendant or from a brother
or sister (originator).
3. The descendant (propositus) should
have died without any legitimate issue
in the direct descending line who
could inherit from him.
NOTE: In determining the right of the

reservatarios over the reservable property,
there are 2 events to consider:
1. Death of propositus: all qualified
reservatarios acquire an inchoate
right. Reservista owns the property
subject to a resolutory condition.
2. Death
of
reservista:
surviving
reservatarios acquire a perfect right.
Personal elements:
1. Originator the ascendant, or brother
or sister from whom the propositus
had acquired the property by
gratuitous
title
(e.g.
donation,
remission,
testate
or
intestate
succession);
2. Propositus the descendant who died
and from whose death the reservista in
turn had acquired the property by
CIVIL LAW COMMITTEE
NOTE: All personal elements must be

joined
by
bonds
of
legitimate
relationship.
NOTE: The NCC did not provide for the

rules on how the reservatarios would
succeed to the reservista. However, the
following rules on intestacy have been
consistently applied:
a. Rule of preference between lines
b. Rule of proximity
c. Right of representation (provided
that the representative is a
relative
of the
descendantpropositus within 3rd degree, and
that he belongs to the line from
which the reservable property
came)
d. Full blood/double share rule in
Art. 1006
Stephen

73
MEMORY AID
Property subject to reservation: must

be the same property which the
reservista had acquired by operation
of law from propositus upon the death
of the latter and which the latter, in
turn had acquired by gratuitous title
during his lifetime from another
ascendant, brother/sister.
Obligations of Reservista:
(1) To make an inventory of all
reservable property;
(2) To appraise value of all reservable
movable property;
(3) To annotate in Registry of
property the reservable character
of all reservable immovable
property;
(4) To secure by mortgage (a)
restitution of movables not
alienated,
(b)
payment
of
damages caused by his fault or
negligence, (c) return of price
received for movables alienated
and (d) payment of value of
immovable alienated.
A reservatorio may dispose of his

expentancy to the reservable property
during pendency of the reserve in its
uncertain and conditional form. If he
dies before the reservista, he has not
transmitted anything, but if he
survives
such
reservista,
the
transmission shall become effective.
A will may prevent the constitution of

a reserva. In case of testate
succession, only the legitime passes by
operation of law. The propositus may,
by will, opt to give the legitime of his
ascendant without giving to the latter
properties he had acquired by
gratuitous
title
from
another
ascendant, or brother or sister. In such
case, a reserva troncal is avoided.
However, if the ascendant was not
disentitled in the will to receive such
properties, the reserva minima rule
(proportional reserva) should be followed.
CIVIL LAW COMMITTEE
IN
CIVIL LAW
The rule holds that all property passing to

the reservista must be considered as
passing partly by operation of law and
partly by will of the propositus. Thus, one
half of the properties acquired by
gratuitous title should be reservable, and
the other half should be free.
Causes for Extinguishment of Reserva
Troncal:
1. Death of reservatarios;
2. Death of all relatives of propositus
within the 3rd degree who belong to
the line from which the property
came;
3. Loss of the reservable property for
causes not due to the fault or
negligence of the reservista.
4. Waiver or renunciation by the
reservatarios;
5. Prescription of the right of the
reservatarios, when the reservista
holds the property adversely against
them in the concept of an absolute
owner;
6. Registration by the reservista of the
property as free property under the
Land Registration Act
M. DISINHERITANCE (ART 915 923)
A testamentary disposition by which a
person is deprived of, or excluded
from, the inheritance to which he has
a right.
A disinheritance properly effected
totally excludes the disinherited heir
from the inheritance. The disinherited
heir is deprived not only of the
legitime but also of such part of the
free portion that would have passed to
him by a previous will (which is
revoked, as inconsistent with, the
subsequent disinheritance) or by
intestate succession.
Requisites:
1. Effected only through a valid will;
2. For a cause expressly stated by law;
3. Cause must be stated in the will itself;
4. Cause must be certain and true;
Stephen

74
MEMORY AID
5. Unconditional;
6. Total; and
7. The heir disinherited must be
designated in such a manner that
there can be no doubt as to his
identity.
Effects of Disinheritance:
1. Deprivation of the compulsory heir
who is disinherited of any participation
in the inheritance including the
legitime.
2. The children/descendants of the
person disinherited shall take his or
her place and shall preserve the rights
of compulsory heirs with respect to
the legitime.
3. The disinherited parent shall not have
the usufruct or administration of the
property
which
constitutes
the
legitime.
IMPERFECT DISINHERITANCE
A disinheritance which does not have
one or more of the essential requisites
for its validity.
Effects:
1. If testator had made disposition of the
entire estate: annulment of the
testamentary dispositions only in so far
as they prejudice the legitime of the
person disinherited; does not affect
the dispositions of the testator with
respect to the free portion.
2. If testator did not dispose of the free
portion: compulsory heir is given all
that he is entitled to receive as if the
disinheritance has not been made,
without
prejudice
to
lawful
dispositions made by the testator in
favor of others.
3. Devises,
legacies
and
other
testamentary dispositions shall be
valid to such extent as will not impair
the legitime.
IMPERFECT
DISINHERITANCE
CIVIL LAW COMMITTEE
PRETERITION
IN
CIVIL LAW
1.
The
person
disinherited may be
any compulsory heir
1.
The
person
omitted must be a
compulsory heir in
the direct line
2. Always express
2. Always implied
3.Always intentional
3.
May
intentional
unintentional
4. Effect: Partial
annulment
of
institution of heirs
4. Effect: Total
annulment
of
institution of heirs
be
or
Common Causes for Disinheritance of

children or descendants, parents or
ascendants, and spouse:
1. When the heir has been found guilty of
an attempt against the life of the
testator, his/her descendants or
ascendants, and spouse in case of
children and parents;
2. When the heir has accused the
testator of a crime for which the law
prescribes imprisonment for 6 years or
more, if the accusation has been found
groundless;
3. When the heir by fraud, violence,
intimidation, or undue influence
causes the testator to make a will or
to change one already made;
4. Refusal without justifiable cause to
support the testator who disinherits
such heir.
Peculiar Causes for Disinheritance
1. Children/Descendants:
a. When the child/descendant has
been convicted of adultery or
concubinage with the spouse of
the testator;
b. Maltreatment of the testator by
word
or
deed
by
the
child/descendant;
c. When the child/descendant leads a
dishonorable or disgraceful life;
Conviction of a crime which carries
with it a penalty of civil
interdiction.
Stephen

75
MEMORY AID
IN
CIVIL LAW
disinheritance that may have been

made. (Art. 922)
2. Parents/Ascendants:
a. When the parents have abandoned
their children or induced their
daughters to live a corrupt or
immoral life, or attempted against
their virtue;
b. When the parent/ascendant has
been convicted of adultery or
concubinage with the spouse of
the testator;
c. Loss of parental authority for
causes specified in the Code; and
d. Attempt by one of the parents
against the life of the other, unless
there has been reconciliation
between them.
3. Spouse:
a. When the spouse has given cause
for legal separation; When the
spouse has given grounds for the
loss of parental authority.
Revocation of Disinheritance:
1. Reconciliation;
2. Subsequent
institution
of
the
disinherited heir; and
3. Nullity of the will which contains the
disinheritance.
NOTE: Once disinheritance has been
revoked or rendered ineffectual, it cannot
be renewed except for causes subsequent
to the revocation or based on new
grounds.
RECONCILIATION
It is the resumption of genuine cordial
relationship between the testator and
the disinherited heir, approximating
that which prevailed before the
testator learned of the cause for
disinheritance, reciprocally manifested
by their actions subsequent to the act
of disinheritance.
A subsequent reconciliation between
the offender and the offended person
deprives the latter of the right to
disinherit, and renders ineffectual any
CIVIL LAW COMMITTEE
NOTES:
Mere civility which may characterize
their relationship, a conduct that is
naturally expected of every decent
person, is not enough.
In order to be effective, the testator
must pardon the disinherited heir.
Such pardon must specifically refer to
the heir and to the acts causing the
disinheritance. The heir must accept
the pardon.
No particular form is required. It may
be made expressly or tacitly.
NOTE: Where the cause for disinheritance
is likewise a ground for unworthiness to
succeed, what is the effect of a
subsequent reconciliation upon the heirs
capacity to succeed?
1. If disinheritance has been made: Rule
on
reconciliation
applies.
The
disinheritance becomes ineffective.
2. If disinheritance has not been made:
Rule on reconciliation does not apply.
The heir continues to be incapacitated
to succeed unless pardoned by the
testator under Art. 1033. The law
effects the disinheritance.
N. LEGACIES AND DEVISES (ARTS. 924
959)
Persons charged with
devises:
(1) compulsory heir;
(2) voluntary heir;
(3) legatee or devisee;
(4) estate
legacies
and
NOTES:
If the will is silent with regard to the
person who shall pay or deliver the
legacy/devise, there is a presumption
that such legacy or devise constitutes
Stephen

76
MEMORY AID
a charge against the decedents

estate.
Since legacies and devises are to be
taken from the disposable free portion
of the estate, thus, the provisions on
institution of heirs are generally
applicable to them.
STATUS OF
PROPERTY GIVEN BY
LEGACY/DEVISE
1. Belonging to the
testator at the time of
the execution of the
will until his death
2. Belonging to the
will but alienated in
favor of a 3rd person
EFFECT ON THE
LEGACY/DEVISE
Effective
Revoked
3. Belonging to the
favor
of
the
legatee/devisee
gratuitously
No
revocation.
There is a clear
intention
to
comply
with
legacy or devise.
4. Belonging to the
favor of the legatee or
devisee onerously
Legatee/devisee
can
demand
reimbursement
from the heir or
estate
5. Not belonging to the

testator at the time
the will is executed but
he has ordered that the
thing be acquired in
order that it be given
to the legatee/devisee
the will is executed
and
the
testator
erroneously
believed
that
the
thing
pertained to him
CIVIL LAW COMMITTEE

the will is executed but
afterwards becomes his
by whatever title
8. Already belonged to
the legatee/devisee at
the
time
of
the
execution of the will
even though another
person
may
have
interest therein
9. Already belonged to
the legatee or devisee
at the time of
the
even though it may
have
been
subsequently alienated
by him
IN
CIVIL LAW
Effective
Ineffective
Ineffective
10.Testator
had
knowledge that the
thing
bequeathed
belonged to a third
person
and
the
legatee/devisee
acquired the property
gratuitously after the
Legatee/devisee
can claim nothing
by virtue of the
legacy/devise
11.Testator
had
knowledge that the
thing
bequeathed
belonged to a third
person
and
the
legatee/devisee
acquired the property
by onerous title
Legatee/devisee
can
demand
reimbursement
from the heir or
estate
Effective
Void
ART. 911
ART. 950
Order of
preference:
(LIPO)
Order of preference:
(RPSESO)
1. Legitime of
compulsory
heirs
2. Donations inter
vivos
3. Preferential
1. Remuneratory L/D
2.Preferential L/D
3.L for support
4.L for education
5.L/D of a specific,
determinate thing
Stephen

77
MEMORY AID
legacies or
devices
4. All other
legacies or
devices pro
rata
Application:
(1)
When
the
reduction
is
necessary
to
preserve
the
legitime
of
compulsory heirs
from impairment
whether there are
(1) When there are no

compulsory heirs and
the entire estate is
distributed by the
testator as legacies
or devises; or
donations
inter
vivos or not; or
(2)
When,
although,
the
legitime has been
preserved by the
testator
himself
there
are
donations
inter
vivos.
(2) When there are

compulsory heirs but
their legitime has
already
been
provided for by the
testator and there
are no donations
inter vivos.
NOTES:
In case of reduction in the above
cases, the inverse order of payment
should be followed.
When the question of reduction is

exclusively among legatees and
devisees themselves, Article 950
governs; but when there is a conflict
between
compulsory
heirs
and
devisees and legatees, Article 911
applies.
GROUNDS FOR REVOCATION OF LEGACIES
AND DEVISES (ART 957)
1. Testator
transforms
the
thing
bequeathed in such a manner that it
does not retain either the form or the
denomination it had.
2. Testator by any title or for any cause
alienates the thing bequeathed, or any
CIVIL LAW COMMITTEE
CIVIL LAW
part thereof, it being understood that

in the latter case the legacy or devise
shall be without effect only with
respect to the part alienated.
Except: when the thing should again
belong to the testator after alienation.
which forms a part

of the estate
All others pro rata
Application:
IN
3. Thing bequeathed is totally lost during

the lifetime of the testator, or after
his death without the heirs fault
4. Other causes: nullity of the will;
noncompliance
with
suspensive
conditions affecting the bequests; sale
of the thing to pay the debts of the
deceased during the settlement of his
estate.
NOTE: LIST IS NOT EXCLUSIVE
II.
LEGAL
SUCCESSION
OR
INTESTATE
That which is effected by operation of

law in the absence or default of a will.
CAUSES OF INTESTACY
1. If a person dies without a will, or with
a void will, or one which has
subsequently lost its validity;
2. Absence of an institution of heir;
3. Partial institution of heir. In such case,
intestacy takes place as to the
undisposed portion (mixed succession);
4. Non-fulfillment of suspensive condition
attached to the institution of heir;
5. Predecease of the instituted heir;
6. Repudiation by the instituted heir;
7. Incapacity of instituted heir;
8. Preterition. Intestacy may be total or
partial depending on whether or not
there are legacies/devises;
9. Fulfillment of resolutory condition;
10. Expiration of term or period of
institution;
11. Non-compliance or impossibility of
compliance with the will.
NOTE: In all cases where there has been
an institution of heir, follow the I.S.R.A.I.
order of Justice Paras. If the Institution
Stephen

78
MEMORY AID
fails, Substitution occurs. If there is no
substitute, the right of Representation
applies in the direct descending line to the
legitime if the vacancy is caused by
predecease, incapacity, or disinheritance.
The right of Accretion applies to the free
portion when the requisites in Art. 1016
are present. If there is no substitute, and
the right of Representation or Accretion
does not apply, the rules on Intestate
succession shall take over.
A. RULES
1. Rule of Preference between lines
Those in the direct descending line
shall exclude those in the direct
ascending and collateral lines, and
those in the direct ascending line
shall, in turn, exclude those in the
collateral line.
2. Rule of Proximity
The relative nearest in degree
excludes the more distant ones,
saving the right of representation
when it properly takes place.
This rule is subject to the rule of
preference between lines.
3. Rule of Equal Division
Relatives in the same degree shall
inherit in equal shares.
EXCEPTIONS:
a) Division in the ascending line
(between paternal and maternal
grandparents);
b) Division among brothers and sisters,
some of whom are of the full and
others of half blood; and
c) Division In cases where the right of
representation takes place.
NOTE: This rule is subject to the rule
of preference between lines.
4. Rule of Barrier between the legitimate
family and the illegitimate family
The illegitimate family cannot
inherit by intestate succession
from the legitimate family and
vice-versa.
5. Rule of Double Share for full blood
collaterals
When full and half-blood brothers
or sisters, nephews or nieces,
CIVIL LAW COMMITTEE
IN
CIVIL LAW
survive, the full blood shall take a

portion in the inheritance double
that of the half-blood.
NOTE: In case of a disposition made in
general terms under Article 959, only the
Rule of Proximity applies.
B. RELATIONSHIP (ARTS. 963 969)
1. Number of generations determines
proximity.
2. Each generation forms a degree.
3. A series of degrees forms a line.
4. A line may be direct or collateral. A
direct line is that constituted by the
series of degrees among ascendants
and descendants (ascending and
descending).
5. A collateral line is that constituted by
the series of degrees among persons
who
are
not
ascendants
or
descendants, but who come from a
common ancestor.
6. Full blood: same father and mother;
half blood: only one of either parent is
the same.
7. In adoption, the legal filiation is
personal and exists only between the
adopter and the adopted. The adopted
is deemed a legitimate child of the
adopter (AP), but still remains as an
intestate heir of his natural parents
and other blood relatives.
C. RIGHT OF REPRESENTATION (RR)
(ARTS. 970 977)
A right created by fiction of law, by
virtue of which the representative is
raised to the place and degree of the
person represented, and acquires the
rights which the latter would have if
he were living or if he could have
inherited. The representative is called
to the succession by the law not by the
person represented. He succeeds the
one whom the person represented
would have succeeded.
NOTES:
In the direct line, representation takes
place ad infinitum in the direct
Stephen

79
MEMORY AID
descending line, never in the

ascending.
In the collateral line, representation
takes place only in favor of the
children of brothers or sisters
(nephews and nieces), whether of the
full or half-blood, and only if they
concur with at least 1 uncle or aunt.
1. Testamentary Succession
a) When a compulsory heir in the
direct
descending
line
had
predeceased the testator and was
survived by his children or
descendants.
b) When a compulsory heir in the
direct descending line is excluded
from the inheritance due to
incapacity or unworthiness and he
has children or descendants.
c) When a compulsory heir in the
direct
descending
line
is
disinherited and he has children or
descendants;
representation
covers only the legitime.
d) A legatee/devisee who died after
the death of the testator may be
represented by his heirs.
2. Intestate Succession
a) When a legal heir in the direct
descending line had predeceased
the decedent and was survived by
his children or descendants.
b)
When a legal heir in the direct
descending line is excluded from
the inheritance due to incapacity
or unworthiness and he has
children or descendants.
c) When brothers or sisters had
predeceased the decedent and
they had children or descendants.
d)
When illegitimate children
represent
their
illegitimate
parents who already died in the
estate of their grandparents.
e) When nephews and nieces inherit
together with their uncles and
aunts in representation of their
deceased parents who are the
CIVIL LAW
brothers or sisters of said uncles

and aunts.
D. INTESTATE OR LEGAL HEIRS
Those who are called by law to the
succession either in the absence of a
will or of qualified heirs, and who are
deemed called based on the presumed
will of the decedent.
REGULAR
ORDER
OF
SUCCESSION
(Decedent is a legitimate person):
1. Legitimate children or descendants
(LCD)
2. Legitimate parents or ascendants (LPA)
3. Illegitimate children or descendants
(ICD)
4. Surviving spouse (SS)
5. Brothers and sisters, nephews and
nieces (BS/NN)
6. Other collateral relatives within the 5th
degree (C5)
7. State
IRREGULAR ORDER OF SUCCESSION

(Decedent is an illegitimate person):
1. Legitimate children or descendants
(LCD)
2. Illegitimate children or descendants
(ICD)
3. Illegitimate parents (IP)
4. Surviving spouse (SS)
5. Brothers and sisters, nephews and
nieces (BS/NN)
6. State
ORDER OF CONCURRENCE
1. LCD, ICD, and SS
2. LPA, ICD, and SS
3. ICD and SS
4. SS and IP
5. BS/NN and SS
6. C5 (alone)
7. State (alone)
TABLE OF INTESTATE SHARES
SURVIVOR
CIVIL LAW COMMITTEE
IN
INTESTATE SHARE
Stephen

80
MEMORY AID
Any class
alone
1 LC
SS
2 or more LC
SS
LPA
SS
LPA
SS
IC
IP
SS
SS
BS/NN
1 LC
SS
IC
2 or more LC
SS
IC
IN
CIVIL LAW
Entire estate
1/2
1/2
(Diongson vs. Cinco, 74
SCRA 118)
Consider SS as 1 LC,
then divide estate by
total number.
1/2
1/2
1/2
1/4
1/4
1/2
1/2
(The law is silent. Apply
concurrence theory.)
1/2
1/2
First, satisfy legitimes.
Estate
would
be
insufficient. Reduction
must be made according
to
the
rules
on
legitimes. The legitimes
of LCD and SS shall
always be first satisfied
in preference to the ICD.
First, satisfy legitimes.
There would be an
excess in the estate.
Distribute such excess in
the proportion 1:2:2, in
accordance with the
concurrence theory.
ORDER OF CONCURRENCE IN THE CASE

OF ADOPTED CHILD
SURVIVORS
SHARE
1. LPA/IP
AP
2. LPA/IP
AP
SS
3. LPA
AP
ICD
4. LPA
AP
SS
ICD
CIVIL LAW COMMITTEE
1/3
1/3
1/3
CARDINAL PRINCIPLES OF INTESTATE

SUCCESSION (Justice Paras)
1. Even if there is an order of intestate
succession, the Compulsory Heirs (CH)
are never excluded. The Civil Code
follows the concurrence theory, not
the exclusion theory.
2. Right of Representation (RR) in the
collateral line occurs only in intestate
succession, never in testamentary
succession because a voluntary heir
cannot be represented (collateral
relatives are not CH).
3. The intestate shares are either equal
to or greater than the legitime.
4. GENERAL
RULE:
Grandchildren
always inherit by RR, provided
representation is proper.
EXCEPTION: Whenever all the
children repudiate, the grandchildren
inherit in their own right because RR
would not be proper.
5. Nephews and nieces inherit either by
RR or in their Own Right (OR).
a. RR: when they concur with aunts
and uncles (provided that RR is
proper)
6.
7.
8.
9.
b. OR: when they do not concur with

aunts and uncles.
ICD of legitimates cannot represent
because of the barrier, but both the
ICD and LCD of illegitimates can.
There can be reserva troncal in
intestate succession.
A renouncer can represent, but cannot
be represented.
A person who cannot represent a near
relative cannot also represent a
relative farther in degree.
III. MIXED SUCCESSION OR PARTIAL

INTESTACY
Succession that is effected partly by

will and partly by operation of law.
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81
MEMORY AID
RULES:
1. The law of legitimes must be brought
into operation in partial intestacy,
because the testamentary dispositions
can affect only the disposable free
portion but never the legitimes.
2. If among the concurring intestate heirs
there are compulsory heirs, whose
legal or intestate portions exceed
their respective legitimes, then the
amount
of
the
testamentary
disposition must be deducted from the
disposable free portion, to be borne by
all the intestate heirs in the
proportions that they are entitled to
receive from such disposable free
portion as intestate heirs.
3. If the intestate share of a compulsory
heir is equal to his legitime, then the
amount
of
the
testamentary
disposition must be deducted only
from the intestate shares of the
others, in the proportions stated
above.
4. If the testamentary dispositions
consume the entire disposable free
portion, then the intestate heirs who
are compulsory heirs will get only their
legitime, and those who are not
compulsory heirs will get nothing.
IV.
PROVISIONS
COMMON
TO
TESTAMENTARY
AND
INTESTATE
SUCCESSIONS
A. RIGHT OF ACCRETION (A)
(ARTS 1015 1023)
A right by virtue of which, when two
or more persons are called to the same
inheritance, devise or legacy, the part
assigned to one who renounce or
cannot receive his share, or who died
before
testator,
is
added
or
incorporated to that of his co-heirs,
co-devisees, or co-legatees.
A right based on the presumed will of
the deceased that he prefers to give
certain
properties
to
certain
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individuals, rather than to his legal

heirs.
Requisites:
1. 2 or more persons must have been
called to the same inheritance, legacy
or devise, or to the same portion
thereof, pro indiviso; and
2. there must be a vacancy in the
inheritance, legacy or devise (caused
by
predecease,
incapacity,
repudiation,
nonfulfillment
of
suspensive condition or void or
ineffective
testamentary
dispositions.)
EFFECTS of PREDECEASE, INCAPACITY,
DISINHERITANCE, or REPUDIATION in both
TESTAMENTARY
and
INTESTATE
SUCCESSION
CAUSE OF
VACANCY
Predecease
Incapacity
Disinheritance
Repudiation
TESTAMENTARY
SUCCESSION
Legitime
Free
Portion
1. RR
1. A
2. IS
2. IS
RR
A
2. IS
IS
1. RR
_
2. IS
IS
A
INTESTATE
SUCCESSION
(IS)
1. RR
2. IS
1. RR
2. IS
_
A
Summary:
(A)
In
testamentary succession:
(1) Legitime:
(a) 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.
(b) In case of incapacity, results
are
the
same
as
in
predecease.
(c) In case of disinheritance,
results are the same as in
predecease.
(d) In case of repudiation by an
heir, the others inherit in
their own right.
(2) Disposable free portion:
Stephen

82
MEMORY AID
Accretion takes place when
requisites are present; but if such
requisites are not present, the
others inherit in their own right.
(B) In intestate succession:
(1) In case of predecease, there is
representation if there are children or
descendants; if none, the others
inherit in their own right.
(2) In case of incapacity, results are the
same as in predecease.
(3) In case of repudiation, there is always
accretion.
B. CAPACITY TO SUCCEED BY WILL OR BY
INTESTACY (ARTS. 1024 1040)
Requisites:
1. The heir, legatee/devisee must be
living or in existence at the moment
the succession opens; and
2. He must not be incapacitated or
disqualified by law to succeed.
THE FOLLOWING ARE INCAPABLE OF
SUCCEEDING:
A. Based on Undue Influence or Interest:
(PIGRAP)
1. Priest who heard the confession of the
testator during his last illness, or the
minister of the gospel who extended
spiritual aid to him during the same
period;
2. Individuals,
associations
and
corporations not permitted by law to
inherit;
3. Guardian with respect to testamentary
dispositions given by a ward in his
favor before the final accounts of the
guardianship have been approved,
even if the testator should die after
the approval thereof; nevertheless,
any provision made by the ward in
favor of the guardian when the latter
is his ascendant, descendant, brother,
sister, or spouse, shall be valid;
4. Relatives of such priest or minister of
the gospel within the 4th degree, the
church, order, chapter, community,
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organization or institution to which

such priest or minister may belong;
5. Attesting witness to the execution of a
will, the spouse, parents or children,
or any one claiming under such
witness, spouse, parents or children;
and
6. Physician, surgeon, nurse, health
officer or druggist who took care of
the testator during his last illness.
B. Based on Morality or Public Policy
(ART 739)
1. Those made in favor of a person with
whom the testator was guilty of
adultery or concubinage at the time of
the making of the will.
2. Those made in consideration of a crime
of which both the testator and the
beneficiary have been found guilty.
3. Those made in favor of a public officer
or his spouse, descendants and
ascendants, by reason of his public
office
C. Based on Acts of Unworthiness (A4F3P)
1. Parents who have abandoned their
children or induced their daughters to
lead a corrupt or immoral life, or
attempted against their virtue;
2. Any person who has been convicted of
an attempt against the life of the
testator, his/her spouse, descendants
or ascendants;
3. Any person who has accused the
testator of a crime for which the law
prescribes imprisonment for 6 years or
more, if the accusation has been found
groundless;
4. Any person convicted of adultery or
concubinage with the spouse of the
testator;
5. Any heir of full age who, having
knowledge of the violent death of the
testator, should fail to report it to an
officer of the law within a month,
unless the authorities have already
taken action; this prohibition shall not
apply to cases wherein, according to
law, there is no obligation to make an
accusation;
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83
MEMORY AID
6. Any person who by fraud, violence,
intimidation, or undue influence
should cause the testator to make a
will or to change one already made;
7. Any person who falsifies or forges a
supposed will of the decedent; and
8. Any person who by the same means
prevents another from making a will,
or from revoking one already made, or
who supplants, conceals, or alters the
latter's will.
NOTE: The moment the testator uses one
of the acts of unworthiness as a cause for
disinheritance, he thereby submits it to
the rules on disinheritance. Thus,
reconciliation renders the disinheritance
ineffective.
PARDON OF ACTS OF UNWORTHINESS
EXPRESS
IMPLIED
1.
made by the
execution
of
a
document or any
writing in which the
decedent condones
the
cause
of
incapacity
2.
cannot
be
revoked
1. effected when
testator makes a
will instituting the
unworthy heir with
knowledge of the
cause of incapacity
2. revoked when
the
testator
revokes the will or
the institution
C. ACCEPTANCE AND REPUDIATION OF

INHERITANCE (ARTS. 1041 1057)
Characteristics: (VIR)
1. Voluntary and free
2. Irrevocable, except if there is vitiation
of consent or an unknown will appears
3. Retroactive
Requisites:
1. certainty of the death of the decedent
2. certainty of the right to the
inheritance
Acceptance vs. Repudiation:
(1)
Acceptanc
e involves the confirmation of
transmission of successional rights,
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while
repudiation
renders
such
transmission ineffective.
(2)
Repudiatio
n is equivalent to an act of disposition
and alienation.
(3)
The
publicity required for repudiation is
necessary for the protection of other
heirs and also of creditors.
Form of Acceptance
1. Express Acceptance one made in a
public or private document.
2. Tacit Acceptance one resulting from
acts by which the intention to accept
is necessarily implied or which one
would have no right to do except in
the capacity of an heir
Tacit acceptance is presumed from
certain acts of the heir as:
1. When heir sells, donates, or assigns his
right.
2. When heir renounces it for the benefit
of one or more heirs.
3. When renunciation is in favor of all
heirs indiscriminately for consideration
4. Other acts of tacit acceptance
a. heir demands partition of the
inheritance
b. heir alienates some objects of the
inheritance
c. Under Art 1057, failure to signify
acceptance or repudiation within
30 days after an order of
distribution by the probate court.
REPUDIATION must be made in a public

instrument (acknowledged before a
notary public) or authentic document
(equivalent of an indubitable writing
or a writing whose authenticity is
admitted or proved) or by petition
presented to the court having
jurisdiction over the testamentary or
intestate proceeding.
Reason for formality: Law considers

that the act of repudiation is more
Stephen

84
MEMORY AID
solemn than the act of acceptance and
that repudiation produces a more
violent and disturbing consequences.
Heir in two capacities: An heir who is

such by will and by law, and he
repudiates the inheritance as a
testamentary heir, will be considered
to have repudiated the inheritance as
a legal heir. But when an heir
repudiates as a legal heir, he may later
on accept as a testamentary heir.
D. COLLATION (ARTS. 1061-1077)
Every compulsory heir, who succeeds
with other compulsory heirs must bring
into the mass of the estate any
property or right which he may
received from the decedent, during
the lifetime of the latter, by way of
donation, or any other gratuitous title,
in order that it may be computed in
the determination of the legitime of
each heir, and in the account of
partition. (Art. 1061)
An act of returning or restoring to the
common mass of the estate, either
actually or fictitiously, any property
which a person may have received
from the decedent during the latters
lifetime, but which is understood for
legal purposes as an advance from
inheritance.
OPERATIONS RELATED TO COLLATION
1. Collation adding to the mass of the
hereditary estate the value of the
donation or gratuitous disposition
2. Imputing or Charging crediting the
donation as an advance on the
legitime (if the donee is a compulsory
heir) or on the free portion (if the
donee is a stranger)
3. Reduction determining to what
extent the donation will remain and to
what extent it is excessive or
inofficious.
4. Restitution return or payment of the
excess to the mass of hereditary
estate.
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Persons obliged to collate

1. GENERAL RULE: compulsory heirs
EXCEPTIONS:
a. When the testator should have so
expressly provided; and
b. When the compulsory heir should
have repudiated his inheritance
2. Grandchildren who survive with their
uncles, aunts, or 1st cousins, and
inherit by right of representation.
NOTE: Grandchildren may inherit from
grandparent in their own right (i.e. heirs
next in degree) and not by right of
representation if their parent repudiates
the inheritance of the grandparent, as no
living person can be represented except in
cases of disinheritance and incapacity. In
such case grandchildren are not obliged to
bring to collation what their parent has
received
gratuitously
from
their
grandparent)
What to collate:
1. Any property or right received by
gratuitous title during the testators
lifetime
2. All that they may have received from
the decedent during his lifetime
3. All that their parents would have
brought to collation if alive
Properties not subject to collation (2 nd
concept):
1. Absolutely no collation (all concepts):
a. Expenses for support, education
(elementary and secondary only),
medical attendance, even in
extraordinary
illness,
apprenticeship,
ordinary
equipment, or customary gifts
(Art. 1067).
2. Generally not imputable to legitime:
a. Expenses incurred by parents in
giving their children professional,
vocational or other career unless
the parents so provide, or unless
they impair the legitime.
b. Wedding gifts by parents and
ascendants consisting of jewelry,
Stephen

85
MEMORY AID
clothing, and outfit except when
they exceed 1/10 of the sum
disposable by will.
E. PARTITION AND DISTRIBUTION OF
ESTATE (ARTS. 1078 1105)
It is the separation, division and
assignment of a thing held in common
among those to whom it may belong. It
includes every act which is intended to
put an end to indivision among coheirs, and legatees or devisees,
although it should purport to be a
sale, exchange, compromise, or any
other transaction. It is not subject to
any form.
Who may effect partition:
1. decedent himself during his lifetime
by an act inter vivos or by will;
2. heirs themselves;
3. competent court;
4. 3rd person designated by the decedent.
Who can demand partition:
1. compulsory heir;
2. voluntary heir;
3. legatee or devisee;
4. any person who has acquired interest
in the estate.
IN
CIVIL LAW
3. Even if a prohibition is imposed, the

heirs by mutual agreement can still
make the partition.
PARTITION INTER VIVOS (ART 1080)

It is one that merely allocates specific
items or pieces of property on the
basis of the pro-indiviso shares fixed
by law or given under the will to heirs
or successors.
NOTE: Partition is not itself a mode of
acquiring ownership, nor a title therefore.
This partition, being predicated on
succession, necessitates relationship to
the decedent (in case of intestacy) or a
will duly probated (in case of testacy). A
partition inter vivos made in favor of
intestate heirs could be operative.
Dispositions, however, to non-intestate
heirs may suffer an impediment unless
based on a valid will, except perhaps when
such dispositions are intended to take
effect during the life of the testator and
the formalities of donations are properly
complied with.
When partition cannot be demanded:

(PAPU)
1. when expressly prohibited by the
testator himself for a period not
exceeding 20 years;
2. when the co-heirs agreed that the
estate shall not be divided for a
period not exceeding 10 years,
renewable for another 10 years;
3. when prohibited by law;
4. when to partition the estate would
render it unserviceable for the use for
which it is intended.
Prohibition to Partition
1. The prohibition to partition for a
period not exceeding 20 years can be
imposed on the legitime.
2. If the prohibition to partition is for
more than 20 years, the excess is void.
CIVIL LAW COMMITTEE
Stephen

86
MEMORY AID
IN
CIVIL LAW
EFFECTS OF INCLUSION OF INTRUDER IN

PARTITION:
1. Between a true heir and several
mistaken heirs partition is VOID.
2. Between several true heirs and a
mistaken heir transmission to
mistaken heir is VOID.
3. Through error or mistake, share of
true heir is allotted to mistaken heir
partition shall not be rescinded unless
there is bad faith or fraud on the part
of the other persons interested, but
the latter shall be proportionately
obliged to pay the true heir of his
share
NOTE: partition with respect to the
mistaken heir is VOID.
A VOID WILL MAY BE A VALID PARTITION:
1. If the will was in fact a partition; and
2. If the beneficiaries in the void will
were legal heirs.
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property are respectively given by

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determination of the portions which they

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execution of the will in order to

c. MARGINAL SIGNATURES affixed by the

The inadvertent failure of one witness

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It must state the following ESSENTIAL

1. the number of pages used upon

2. the fact that the testator signed

In the case of an ordinary or attested

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However, In the absence of bad faith,

Purposes of requiring witness to attest

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incompetent also attested to the will,

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In a case where the testator did not

WITNESS TO NOTARIAL WILLS

DOCTRINE OF LIBERAL INTERPRETATION

Nevertheless, the Court held in a case

Rule in case of insertion, cancellation,

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A photostatic or xerox copy of a lost or

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The validity of a will as to its form

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Contemplates only lists of properties,

Requisites for a valid incorporation by

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revocation may be effected only by either

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Where the act of destruction is

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GENERAL RULE: In probate proceeding,

In Nuguid vs Nuguid (17 SCRA 449), the

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statement that the beneficiary was a

The fact that the will has been

When a will is declared void because it

Grounds for Disallowance of a Will (ART

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Fair arguments, persuasion, appeal to

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testamentary disposition is not the

under Art. 906, in case the value of

REQUISITES FOR THE ANNULMENT OF

Where the one-sentence will

PRETERITION (ART. 854)

4. omitted heir gets

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should die before him, or should not

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GENERAL RULE: The institution of an

4. An absolute condition not to contract

An absolute condition not to contract

NOTE: However, the following relative

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MODAL INSTITUTION (INSTITUCION SUB

complied with in a manner most analogous