What is right of representation?

Right created by fiction of law where 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 could have inherited.

What is the effect of representation?

Whenever there is succession by representation, the division of the estate shall be made per stirpes, in such manner that the
representative or representatives shall not inherit more than what the person they represent would inherit, if he were living or could
inherit. (Art. 974)
Note: Per stirpes means inheritance by group, all those within the group inheriting in equal shares. Representation is superior to
accretion.

When does right of representation arise?

Representation may arise either because of:
1. death,
2. incapacity, or
3. disinheritance.

When is right or representation not available?

1. As to compulsory heirs: In case of repudiation, the one who repudiates his inheritance cannot be represented. Their own heirs
inherit in their own right.
2. As to voluntary heirs:
Voluntary heirs, legatees and devisees who:
a. Predecease the testator; or
b. Renounce the inheritance cannot be represented by their own heirs, with respect to their supposed inheritance.

Does right of representation apply in the collateral line?

Right of representation takes place only in favor of children of brothers or sisters, whether full or half blood and only if they concur
with at least one uncle or aunt.
Note: This rule applies only when the decedent does not have descendants.

Does the right of representation apply to adopted

children?
No. The right of representation cannot be invoked by adopted children because they cannot represent their adopting parents to the
inheritance of the latters parents.
Reason: The law does not create any relationship between the adopted child and the relatives of the adopting parents, not even to
the biological or legitimate children of the adopting parents.
Note: Under R.A. 8552 or the Domestic Adoption Law, the adopted child and the adopting parents have reciprocal successional
rights.

What is the rule on equal division of lines?

General Rule: Intestate heirs equal in degree inherit in equal shares.
Exception:
1. In the ascending line, the rule of division by line is to the maternal line and to the paternal line, and within each line, the
division is per capita.
2. In the collateral line, the full-blood brothers/sisters will get double that of the half-blood.
3. The division in representation, where division is per stirpes the representative divide only the share pertaining to the person
represented.
Note: The share of an illegitimate child is of the share of a legitimate one. Full blood brother or sister is entitled to double the
share of half brother or sister (Art. 1006). Compulsory heirs shall, in no case, inherit ab intesto less than their legitime as provided in
testamentary succession.

What is the iron-curtain rule?

Art. 992 of the Civil Code provides that illegitimate children cannot inherit ab intestato from the legitimate children and relatives of his
mother or father. Legitimate children and relatives cannot inherit in the same way from the illegitimate child.
Note: The iron curtain rule only applies in intestate succession. There is a barrier recognized by law between the legitimate relatives
and the illegitimate child so that one cannot inherit from the other and vice-versa.
Rationale: The law presumes the existence of antagonism between the illegitimate child and the legitimate relatives of his parents.

REPUDIATION

What are the ways by which the repudiation of the

inheritance, legacy or devise may be made?
1. By means of a public instrument
2. By means of an authentic instrument
3. By means of a petition presented to the court having jurisdiction over the testamentary or intestate proceedings.

What is the effect of repudiation if an heir is both a

testate and legal heir?
If an heir is both a testate and legal heir, the repudiation of the inheritance as a testate heir, he is understood to have repudiated in
both capacities. However, should he repudiate as a legal heir, without knowledge of being a testate heir, he may still accept the
inheritance as a testate heir.

What is collation?
It is the process of adding the value of thing donated to the net value of hereditary estate. To collate is to bring back or return to the
hereditary mass, in fact or fiction, property which came from the estate of the decedent, during his lifetime, but which the law
considers as an advance from the inheritance. Collation is applicable to both donations to compulsory heirs and donations to
strangers.

General Rule:
Compulsory heirs are obliged to collate.
Exception:
1. When testator should have so expressly provided;
2. When compulsory heir repudiates his inheritance

What are the properties that are to be collated?

1. Any property/right received by gratuitous title during testators lifetime
2. All that may have been received from decedent during his lifetime
3. All that their parents have brought to collation if alive

What are the properties not subject to collation?

1. Absolutely no collation expenses for support, education (elementary and secondary only), medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment or customary gifts.
2. Generally not imputed 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, clothing and outfit except when they exceed 1/10 of the sum
disposable by will.
Note: Only the value of the thing donated shall be brought to collation. This value must be the value of the thing at the time of the
donation.

When partition cannot be demanded

Partition cannot be demanded when:
1. Expressly Prohibited by testator for a period not more than 20 years

2. Co-heirs Agreed that estate not be divided for period not more than 10 years, renewable for another 10 yrs
3. Prohibited by law
4. To partition estate would render it Unserviceable for use for which it was intended

Partition cannot be demanded when:

1. Expressly Prohibited by testator for a period not more than 20 years
2. Co-heirs Agreed that estate not be divided for period not more than 10 years, renewable for another 10 yrs
3. Prohibited by law
4. To partition estate would render it Unserviceable for use for which it was intended

Who are the compulsory heirs in the direct line?

a. Legitimate children and descendants with respect to their legitimate parents or ascendants;
b. Legitimate parents ot ascendants, with respect to their legitimate children and descendants;
c. Illegitimate children (Recognized)
d. The father or mother of illegitimate children
Note: The surviving spouse is not included.

Is an adopted child a compulsory heir?

Legitimate children includes adopted children and legitimated children. Under R.A. 8552 or the Domestic Adoption Law adopted
children have the same rights granted to the legitimate children. Adopted children, for all intents and purposes are considered as
legitimate children. Hence, the adopted children can already exclude legitimate parents/ascendants.

What is legal or intestate succession?

Legal or intestate succession is that which is effected by operation of law in default of a will. It is legal because it takes place by
operation of law; it is intestate because it takes place in the absence or in default of a last will of the decedent. (Jurado, p. 377)

What is the formula for application of inheritance?

The following are applied successively:
1. Institution of an heir (Bequest, in case of legacies or devises)
2. Substitution, if proper
3. Representation, if applicable
4. Accretion, if applicable
5. Intestacy, if all of The above are not applicable

Can there be a valid will which does not institute an

heir?
Yes, a will is valid even if it contains only a provision for disinheritance or if only legacies and devises are contained in the will.

Who are intestate heirs?

1. Legitimate children or descendants
2. Illegitimate children or descendants
3. Legitimate parents or ascendants
4. Illegitimate parents
5. Surviving spouse
6. Brothers and sisters, nephews and nieces
7. Other collateral relatives up to the 5th degree
8. The State.

SUCCESSION SETTLEMENT OF
ESTATE
In Dy Yieng Seangio, et al. v. Hon. Amor Reyes, et al., G.R. No. 140371-72, November 27, 2006, there was a petition for the
probate of an alleged holographic will which was denominated as Kasulatan sa pag-aalis ng mana. The private respondents
moved for the dismissal of the probate proceedings primarily on the ground that the document purporting to be the holographic will
of Segundo did not contain any disposition of the estate of the deceased and thus did not meet the definition of a will under Article
783 of the Civil Code. According to private respondents, the will only showed an alleged act of disinheritance by the decedent of his
eldest son, Alfredo, and nothing else; that all other compulsory heirs were not named nor instituted as heir, devisee or legatee,
hence there was preterition which would result to intestacy. Such being the case, private respondents maintained that while
procedurally the court is called upon to rule only on the extrinsic validity of the will, it is not barred from delving into the intrinsic
validity of the same, and ordering the dismissal of the petition for probate when on the face of the will it is clear that it contains no
testamentary disposition of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss contending that: (1) generally, the authority of the probate court is
limited only to a determination of the extrinsic validity of the will; (2) private respondents question the intrinsic and not the extrinsic
validity of the will; (3) disinheritance constitutes a disposition of the estate of a decedent; and (4) the rule on preterition did not apply
because Segundos will did not constitute a universal heir or heirs to the exclusion of one or more compulsory heirs.
The RTC issued an order dismissing the petition for probate proceedings, hence, a petition for certiorari was filed where
petitioners argued as follows:
First, respondent judge did not comply with Sections 3 and 4 of the Rule 76 of the Rules of Court which respectively
mandate the court to: (a) fix the time and place for proving the will when all concerned may appear to contest the allowance thereof,
and cause notice of such time and place to be published three weeks successively previous to the appointed time in a newspaper of
general circulation; and (b) cause the mailing of said notice to the heirs, legatee and devisees of the testator Segundo;
Second, the holographic will does not contain any institution of an heir, but rather, as its title clearly states, Kasulatan ng
Pag-alis ng Mana, simply contains a disinheritance of a compulsory heir. Thus, there is no preterition in the decedents will and the
holographic will on its face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners and private respondents alike, with the sole exception of
Alfredo, to inherit his estate. None of the compulsory heirs in the direct line of Segundo were preterited in the holographic will since
there was no institution of an heir;
Fourth, as it clearly appears from the face of the holographic will that it is both intrinsically and extrinsically valid, respondent
judge was mandated to proceed with the hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case will work injustice to petitioners, and will render nugatory the
disinheritance of Alfredo.
Now, the critical issue to be determined is whether the document executed by Segundo can be considered as a holographic
will.
Held: A holographic will, as provided under Article 810 of the Civil Code, must be entirely written, dated, and signed by the hand of
the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.
The document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a
holographic will prescribed by law. It is written, dated and signed by the hand of the testator himself. An intent to dispose mortis
causa(Article 783) can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of
the latters property, the disinheritance of the son nonetheless, is an act of disposition in itself. In other words, the disinheritance
results in the disposition of the property of the testator in favor of those who would succeed in the absence of the eldest son.
Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in the form and within the limits
prescribed by law, must be recognized as the supreme law in succession. 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.

Holographic wills, therefore, being usually prepared by one who is not learned in the law should be construed more liberally
than the ones drawn by an expert, taking into account the circumstances surrounding the execution of the instrument and the
intention of the testator. In this regard, the document, even if captioned as Kasulatan ng Pag-alis ng Mana, was intended by the
testator to be his last testamentary act and was executed by him in accordance with law in the form of a holographic will. Unless the
will is probated, the disinheritance cannot be given effect.

Preterition in Succession
With regard to the issue on preterition, the compulsory heirs in the direct line were not preterited in the will. It was the testators last
expression to bequeath his estate to all his compulsory heirs, with the sole exception of his eldest son. Also, he did not institute an
heir to the exclusion of his other compulsory heirs. The mere mention of the name of one of the petitioners in the document did not
operate to institute her as the universal heir. Her name was included plainly as a witness to the altercation between testator and his
son.
Considering that the questioned document is testators holographic will, and that the law favors testacy over intestacy, the probate of
the will cannot be dispensed with. Article 838 of the Civil Code provides that no will shall pass either real or personal property unless
it is proved and allowed in accordance with the Rules of Court. Thus, unless the will is probated, the right of a person to dispose of
his property may be rendered nugatory. (Maninang v. CA, 114 SCRA 478).
In view of the foregoing, the trial court, therefore, should have allowed the holographic will to be probated. It is settled that testate
proceedings for the settlement of the estate of the decedent take precedence over intestate proceedings for the same purpose.
(Cuenco v. CA, 53 SCRA 360).

What is preterition?
Preterition is the omission in testators will of one, some or all of the compulsory heirs in the direct line, whether living at the time of
execution of the will or born after the death of the testator. (Art. 854)

What does born after the death of the testator

mean?
It simply means that the omitted heir must already be conceived at the time of death of the testator but was born only after the death
of the testator.

What are the requisites of preterition?

1. There is a total omission in the inheritance;
2. The person omitted is a compulsory heir in the direct line;
3. The omitted compulsory heir must survive the testator, or in case the compulsory heir predeceased the testator, there is a right of
representation;
4. Nothing must have been received by the heir by gratuitous title.

What are the effects of preterition?

1. Preterition annuls the institution of heirs;
2. Devices and legacies are valid insofar as they are not inofficious;
3. If the omitted compulsory heir dies before testator, institution shall be effectual, without prejudice to right of representation

What is the effect of preterition on the will itself?

General Rule: The effect of annulling the institution of heirs will be, necessarily, the opening of a total intestacy except that proper
legacies and devises must be respected. Here, the will is not abrogated.
Exception: If the will contains a universal institution of heirs to the entire inheritance of the testator, the will is totally abrogated.
Reason: The nullification of such institution of the universal heirs without any other testamentary disposition in the will amounts to a
declaration that nothing at all was written.

What are the rights of the preterited heirs?

They are entitled not only to their shares of the legitime but also to those of the free portion which was not expressly disposed of by
the testator by way of devises and legacies.

J.L.T. Agro, Inc. v. Antonio Balansag and

Hilaria Cadayday, G.R. No. 141882, March
11, 2005
Preterition.
In J.L.T. Agro, Inc. v. Antonio Balansag and Hilaria Cadayday, G.R. No. 141882, March 11, 2005 (Tinga, J), there was a
conflict of property claims between two sets of heirs. It appears that during his lifetime, Don Julian L. Teves (Don Julian) contracted
marriage twice. First, with Antonia Baena and second, with Milagros Donio Teves. In the first marriage, he had two children, Josefa
and Emilio. In the second marriage, he had four children, Maria, Jose, Milagros and Pedro, all surname Teves. There was a property
Lot No. 63 which was originally registered under the names of Julian and Antonia (TCT 5203) forming part of their conjugal
partnership. After Antonia died, Lot No. 63 was among the properties involved in an action for partition. The parties entered into a
Compromise Agreement which embodied the partition of all the properties of Don Julian. The Agreement showed that a tract of land
known as Hacienda Medalla Milagrosa was to be owned in common by Don Julian and his two (2) children of the first marriage
which would remain undivided during his lifetime. The two children were given other properties. Lot No. 63 was retained by Don
Julian.
Paragraph 13 of the Compromise Agreement, at the heart of the present dispute, lays down the effect of the eventual death
of Don Julian vis--vis his heirs:
13. That in the event of death of Julian L. Teves, the properties hereinafter adjudicated to Josefa Teves
Escao and Emilio B. Teves, (excluding the properties comprised as Hacienda Medalla Milagrosa together with

all its accessories and accessions) shall be understood as including not only their one-half share which they
inherited from their mother but also the legitimes and other successional rights which would correspond to them
of the other half belonging to their father, Julian L. Teves. In other words, the properties now selected and
adjudicated to Julian L. Teves (not including his share in the Hacienda Medalla Milgrosa) shall
exclusively be adjudicated to the wife in second marriage of Julian L. Teves and his four minor children,
namely, Milagros Donio Teves, his two acknowledged natural children Milagros Reyes Teves and Pedro Reyes
Teves and his two legitimate children Maria Evelyn Donio Teves and Jose Catalino Donio Teves. (Emphasis
supplied)
On 16 November 1972, Don Julian, Emilio and Josefa executed a Deed of Assignment of Assets with Assumption of
Liabilities in favor of J.L.T. Agro, Inc. (petitioner). Less than a year later, Don Julian, Josefa and Emilio also executed an instrument
entitled Supplemental to the Deed of Assignment of Assets with the Assumption of Liabilities (Supplemental Deed) dated 31 July
1973. This instrument which constituted a supplement to the earlier deed of assignment transferred ownership over Lot No. 63,
among other properties, in favor of JLT Agro. On 14 April 1974, Don Julian died intestate.
On the strength of the Supplemental Deed in its favor, JLT Agro, Inc. sought the registration of the subject lot in its name. A
court, so it appeared, issued an order canceling OCT No. 5203 in the name of spouses Don Julian and Antonia on 12 November
1979, and on the same date TCT No. T-375 was issued in the name of JLT Agro. Since then, JLT Agro has been paying taxes
assessed on the subject lot.
Meanwhile, Milagros Donio and her children had immediately taken possession over the subject lot after the
execution of the Compromise Agreement. In 1974, they entered into a yearly lease agreement with spouses Antonio Balansag and
Hilaria Cadayday. Lot No. 63 was sold to Antonio Balansag and Hilaria Cadayday. After the death of Don Julian, Milagros Donio and
her children executed a Deed of Extrajudicial Partition of Real Estate where Lot No. 63 was allotted to Milagros and her two
children, Maria and Jose. Unaware that Lot No. 63 has been registered under the name of JLT Agro, Inc., Antonio and Hilaria tried to
register the deed of sale, but failed. They filed a complaint to declare the title of JLT Agro, Inc. void which was dismissed.
The trial court ruled that the resolution of the case specifically hinged on the interpretation of paragraph 13 of the
Compromise Agreement. It added that the direct adjudication of the properties listed in the Compromise Agreement was only in
favor of Don Julian and his two children by the first marriage, Josefa and Emilio. Paragraph 13 served only as an amplification of the
terms of the adjudication in favor of Don Julian and his two children by the first marriage.
According to the trial court, the properties adjudicated in favor of Josefa and Emilio comprised their shares in the estate of
their deceased mother Antonia, as well as their potential share in the estate of Don Julian upon the latters death. Thus, upon Don
Julians death, Josefa and Emilio could not claim any share in his estate, except their proper share in the Hacienda Medalla
Milagrosa which was adjudicated in favor of Don Julian in the Compromise Agreement. As such, the properties adjudicated in favor
of Don Julian, except Hacienda Medalla Milagrosa, were free from the forced legitimary rights of Josefa and Emilio, and Don Julian
was under no impediment to allocate the subject lot, among his other properties, to Milagros Donio and her four (4) children.
The trial court further stressed that with the use of the words shall be:, the adjudication in favor of Milagros Donio and her
four (4) children was not final and operative, as the lot was still subject to future disposition by Don Julian during hid lifetime. It cited
paragraph 14 of the Compromise Agreement in support of his conclusion. With Lot No. 63 being the conjugal property of Don Julian
and Antonia, the trial court also declared that Milagros Donio and her children had no hereditary rights thereto except as to the
conjugal share of Don Julian, which they could claim only upon the death of the latter.
The trial court ruled that at the time of Don Julians death on 14 April 1974, Lot No. 63 was no longer part of his estate since
he had earlier assigned it to petitioner on 31 July 1973. Consequently, the lot could not be a proper subject of extrajudicial partition
by Milagros Donio and her children, and not being the owners they could not have sold it. Had respondents exercised prudence
before buying the subject lot by investigating the registration of the same with the Registry of Deeds, they would have discovered
that five (5) years earlier, OCT No. 5203 had already been cancelled and replaced by TCT No. T-375 in the name of petitioner, the
trial court added.
The Court of Appeals, however, reversed the trial courts decision.
Per the appellate court, the Compromise Agreement incorporated in CFI decision dated 31 January 1964, particularly
paragraph 13 thereof, determined, adjudicated and reserved to Don Julians two sets of heirs their future legitimes in his estate
except as regards his (Don Julians) share in Hacienda Medalla Milagrosa. The two sets of heirs acquired full ownership and
possession of the properties respectively adjudicated to them in the CFI decision and Don Julian himself could no loner dispose of
the same, including Lot No. 63. The disposition in the CFI decision constitutes res judicata. Don Julian could have disposed of only
his conjugal share in the Hacienda Medalla Milagrosa.
The CA likewise emphasized that nobody in his right judgment would preterit his legal heirs by simply executing a document
like the Supplemental Deed which practically covers all properties which Don Julian had reserved in favor of his heirs from the
second marriage.
Aggrieved by the CAs decision, JLT Agro appealed to the SC via a petition for review on certiorari, raising pure questions of
law, such as:
a) that future legitime can be determined, adjudicated and reserved prior to the death of Don Julian;
b) that Don Julian had no right to dispose of or assign Lot No. 63 to petitioner because he reserved the same for his heirs
from the second marriage pursuant to the Compromise Agreement;
c) that the Supplemental Deed was tantamount to a preterition of his heirs from the second marriage; and
d) that TCT No. T-375 in the name of petitioner is spurious for not containing entries on the Book No. and Page No.

On the basis of the Compromise Agreement, the Court of Appeals ruled that the adjudication in favor of the heirs of Don
Julian from the second marriage became automatically operative upon the approval of the Compromise Agreement, thereby vesting
on them the right to validly dispose of Lot No. 63 in favor of respondents.
JLT Agro argued that the appellate court erred in holding that future legitime can be determined, adjudicated and reserved
prior to the death of Don Julian.
Stated otherwise, may future legitime be determined, adjudicated and reserved prior to the death of the owner of a
property? Why?
Held: No. In Blas v. Santos, 111 Phil. 503 (1961), future legitime was defined as any property or right not in existence or capable of
determination at the time of the contract, that a person may in the future acquire by succession, Article 1347, NCC provides:
ART. 1347. All things where are not outside the commerce of men, including future things, may be the
object of a contract. All rights which are not intransmissible may also be the object of contracts.

HOLOGRAPHIC WILLS

What are the formalities required in the execution of

holographic will?
1. Signed by testator himself
2. Executed in a language or dialect known to him (Art. 804)
3. Entirely written
4. Dated;
Note: In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his
full signature. (Art. 814)

What are the effects of insertions or interpolations

made by a 3rd person?
General Rules:
When a number of erasures, corrections, cancellation, or insertions are made by the testator in the will but the same have not been
noted or authenticated with his full signature, only the particular words erased, corrected, altered will be invalidated, not the entirety
of the will.
Exception:

1. Where the change affects the essence of the will of the testator; Note: When the holographic will had only one substantial
provision, which was altered by substituting the original heir with another, and the same did not carry the requisite full signature of
the testator, the entirety of the will is voided or revoked.
Reason: What was cancelled here was the very essence of the will; it amounted to the revocation of the will. Therefore, neither the
altered text nor the original unaltered text can be given effect. (Kalaw v. Relova, G.R. No. L-40207, Sept. 28, 1984)
2. Where the alteration affects the date of the will or the signature of the testator.
3. If the words written by a 3rd person were contemporaneous with the execution of the will, even though authenticated by the
testator, the entire will is void for violation of the requisite that the holographic will must be entirely in the testators handwriting.

NOTARIAL WILLS

What are the formalities in the execution of a notarial

will?
1. In Writing;
2. Executed in a language or dialect known to the testator;
3. Subscribed by the testator himself or by the testators name written by some other person in his presence and under his express
direction at the end thereof, at the presence of witnesses;
4. Attested to and subscribed by at least 3 credible witnesses in the presence of the testator and of one another;
5. Each and every Page must be signed by the testator or by the person requested by him to write his name, and by instrumental
witnesses in the presence of each other, on the left margin;
6. Each and every page of the will must be Numbered correlatively in letters placed on the upper part of each page;
7. Must contain an Attestation clause, stating the following:
a. The number of pages of the will,
b. Fact that the testator signed the will and every page in the presence of witnesses, or caused some other person to write his
name under his express direction, c. All witnesses signed the will and every page thereof in the presence of the testator and of one
another;
8. Must be acknowledged before a Notary public.

What are the special requirements if the testator is

deaf or mute?
a. If the testator is able to read, he must personally read the will; or
b. If the testator is unable to read, he must designate two persons to read it and communicate to him, in some practicable manner,
the contents thereof. (Art. 807; see Rabuya, Civil Law Reviewer, p. 559)
Note: The law does not require that the persons reading and communicating the contents of the will be the instrumental witnesses.
(id., p. 560)

What are the special requirements if the testator is

blind?
The will shall be read to him twice, once by one of the subscribing witnesses, and another time by the notary public before whom the
will is acknowledged. (Art. 808; id.)
Note: Art. 808 applies not only to blind testators but also to those who, for one reason or another, are incapable of reading their wills,
either because of poor or defective eye sight or because of illiteracy. (id.)

WITNESSES IN WILLS

What are the qualifications of witnesses?

Witnesses to a will must be:
1. Of Sound mind.
2. At least 18 years of age.

3. Able to read and write

4. Not Blind, deaf or dumb
5. Not have been Convicted by final judgment of falsification of a document, perjury or false testimony.
6. Domiciled in the Philippines

Will the beneficial interest of a witness in a will

disqualify him as such?
Beneficial interest in a notarial will does not disqualify one as a subscribing witness, but it may, or may not nullify the devise or
legacy given to the said witness. A witness who attests the execution of a will, and to whom, or to whose spouse, parent or child, or
anyone claiming the right of said witness, spouse, parent or child, a devise or legacy given, shall be void, unless there are 3 other
competent witnesses to such will. (Art. 823 NCC)

Note: If the witness is instituted as heir, not as devisee or legatee, the rule would still apply, because undue influence or pressure on
the part of the attesting witness would still be present.

Creditors of the testator are not disqualified to be a witness to the will.

FORMAL VALIDITY RULES

What law governs the forms and
solemnities of wills?

It is the law of the country where the will was executed that governs the form and solemnities of wills.
(Art. 17, 1st paragraph; Art. 815)

What are the effects of a will executed

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

What are the effects of a will executed

by an alien in the Philippines?
It shall produce the same effect as if it was executed in the Philippines if it is executed in accordance
with the law of the country where he is a citizen or subject, and which might be proved and allowed
by the law of his own country. (Art. 817)

Is a joint will executed by a Filipino in a

foreign country valid?
No. The same holds true even if it is authorized by the law of the country where the joint will was
executed. (Art. 819)

TESTAMENTARY CAPACITY AND INTENT

Who can make a will?

All persons who are not expressly prohibited by law may make a will. (Art. 796) The law presumes capacity to make a will; hence, in
order that a person may be disqualified to make one, he must be expressly prohibited by law.
Note: The ability as well as the power to make a will must be present at the time of the execution of the will. Supervening incapacity
does not invalidate an effective will, nor is the will by an incapable person validated by the supervening of capacity. (Art. 801)

What are the requisites of testamentary capacity?

1. At least 18 years of age; and
2. Of sound mind
Note: It is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken,
unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the
will to know the:
a. nature of the estate to be disposed of;
b. proper objects of his bounty; and
c. character of the testamentary act.

Who are those persons expressly prohibited by law

to make a will?
1. Persons of either sex under 18 years of age (Art. 797)
2. Persons who are not of sound mind (Art. 798)

Is a person suffering from civil interdiction qualified

to make a will?
Yes. He is deprived only of the power to dispose of his properties through acts inter vivos but not through acts mortis causa. (Art. 34,
Revised Penal Code; Rabuya, Civil Law Reviewer, p. 527)

An Unprobated Will Does Not

Pass Any Right
In Heirs of Rosendo Lasam, etc. v. Umengan, G.R. No. 168156, December 6, 2006, (Callejo, J),
there was a complaint for unlawful detainer alleging that the plaintiffs were the owners of the
property. The defendants were allegedly possessing the property by mere tolerance. In their
defense, they alleged that they have a better right because they inherited it from their father,
showing a Last Will and Testament which has not yet been probated. The lower courts (MTC and
RTC) ruled that with the will they have a better right, but the CA reversed on the ground that the will
has not yet been probated, hence, it has no passed any right.
In this case, both parties were claiming to have better right of possession due to ownership.
One party claiming that there was conveyance; the other, having inherited it, hence, claiming a better
right of possession following the law on succession.
In upholding the CAs ruling the SC
Held: The Last Will and Testament cannot be relied upon to establish the right of possession
without having been probated, the said last will and testament could not be the source of any right.
Article 838 of the Civil Code is instructive:
Art. 838. No will shall pass either real or personal property unless it is proved
and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having
jurisdiction for the allowance of his will. In such case, the pertinent provisions of the
Rules of Court for the allowance of wills after the testators death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be
necessary for the allowance of wills on petitioner of the testator.
Subject to the right of appeal, the allowance of the will, either during the
lifetime of the testator or after his death, shall be conclusive as to its due execution.
In Caiza v. Court of Appeals, 335 Phil. 1107 (1997) it was ruled that: a will is essentially
ambulatory; at any time prior to the testators death, it may be changed or revoked; and until
admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being

quite explicit: No will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court.
Before any will can have force or validity it must be probated. To probate a will means to
prove before some officer or tribunal, vested by law with authority for that purpose, that the
instrument offered to be proved is the last will and testament of the deceased person whose
testamentary act it is alleged to be, and that it has been executed, attested and published as
required by law, and that the testator was of sound and disposing mind. It is a proceedings to
establish the validity of the will. Moreover, the presentation of the will for probate is mandatory and is
a matter of public policy. (Guevara v. Guevara, 74 Phil. 479; Baluyot v. Pao, 163 Phil. 81 (1976);
Roberts v. Leonilas, 214 Phil. 30 (1984)).
Since the will has not yet been probated, it has no effect whatsoever and it cannot be the
basis of any claim of any right of possession. The defendants have a better right of possession
based on the deed of conveyances executed by the owner in favor of the children, the defendants
herein. (Heirs of Rolando Lasam v. Umengan, G.R. No. 168156, December 6, 2006).
All services which are not contrary to law, morals, good customs, public order or public policy may likewise be the object of a
contract.

Well-entrenched is the rule that all things, even future ones, which are not outside the commerce of man may be the object of a
contract. The exception is that no contract may be entered into with respect to future inheritance, and the exception is the
partition inter vivos referred to in Article 1080. (Perillo v. Perillo, (CA), 48 O. G. 4444).

For the inheritance to be considered future, the succession must not have been opened at the time of the contract. A contract may
be classified as a contract upon future inheritance, prohibited under the second paragraph of Article 1347, where the following
requisites concur:

(1) That the succession has yet been opened;

(2) That the object of the contract forms part of the inheritance; and

(3) That the promissory has, with respect to the object, an expectancy of a right which is purely hereditary in nature.

The first paragraph of Article 1080, which provides the exception to the exception and therefore aligns with the general
rule on future things, reads:

ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such partition
shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs.
If the partition is made by an act inter vivos, no formalities are prescribed by the Article. The partition will of course be effective only
after death. It does not necessarily require the formalities of a will for after all it is not the partition that is the mode of acquiring
ownership. Neither will the formalities of a donation be required since donation will not be the mode of acquiring the ownership here
after death; since no will has been made it follows that the mode will be succession (intestate succession). Besides, the partition
here is merely the physical determination of the part to be given to each heir.

The historical antecedent of Article 1080 of the New Civil Code is Article 1056 of the old Civil Code. The only change in the provision
is that Article 1080 now permits any person (not a testator, as under the old) to partition his estate by act inter vivos. This was
intended to abrogate the then prevailing doctrine that for a testator to partition his estate by an act inter vivos, he must first make a
will with all the formalities provided by law. (Dizon-Rivera v. Dizon, 144 Phil. 558 (1970); See also Zaragoza v. Court of Appeals,
G.R. No. 106401, September 29, 2000, 341 SCRA 309, 315-316).

Article 1056 of the old Civil Code (now Article 1080) authorizes a testator to partition inter vivos his property, and distribute them
among his heirs, and this partition is neither a donation nor a testament, but an instrument of a special character, sui generis, which

is revocable at any time by the causante during his lifetime, and does not operate as a conveyance of title until his death. It derives
its binding force on the heirs from the respect due to the will of the owner of the property, limited only by his creditors and the
intangibility of the legitime of the forced heirs. (Albela & Aebuya v. Albela & Allones, (CA) G.R. No. 5583-R, June 20, 1951).

The partition inter vivos of the properties of Don Julian is undoubtedly valid pursuant to Article 1347. However, considering that it
would become legally operative only upon the death of Don Julian, the right of his heirs from the second marriage to the properties
adjudicated to him under the compromise agreement was but a mere expectancy. It was bar hope of succession to the property of
their father. Being the prospect of a future acquisition, the interest by its nature was inchoate. It had no attribute of property, and the
interest to which it related was at the time nonexistent and might never exist. (Johnson v. Breeding, 136 Tenn. 528 190 SW 545).

Evidently, at the time of the execution of the deed of assignment covering Lot No. 63 in favor of JLT Agro, Don Julian remained the
owner of the property since ownership over the subject lot would only pass to his heirs from the second marriage at the time of his
death. Thus, as the owner of the subject lot, Don Julian retained the absolute right to dispose of it during his lifetime. His right
cannot be challenged by Milagros Donio and her children on the ground that it had already been adjudicated to them by virtue of the
compromise agreement.

Second issue:

That Don Julian had no right to dispose of or assign Lot No. 63 to JLT Agro because he reserved it to his heirs from the second
marriage pursuant to the Compromise Agreement. It was contended that he validly transferred ownership of the said lot during his
lifetime to which the lower court agreed when he executed the Supplemental Deed. The CA reversed, ruling that it was a case of
prohibited preterition of Don Julians heirs from the second marriage. JLT Agro contended otherwise. Decide.

Held: The contention of JLT Agro is correct. There was no preterition. Article 854 provides that the preterition or omission of one,
some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. Manresa
defines preterition as the omission of the heir in the will, either by not naming him at all or, while mentioning him as father, son, etc.,
by not instituting him as heir without disinheriting him expressly, nor assigning to him some part of the properties. (Aznar v. Duncan,
123 Phil. 1450 (1966). It is the total omission of a compulsory heir in the direct line from inheritance. It consists in the silence of the
testator with regard to a compulsory heir, omitting him in the testament, either by not mentioning him at all, or by not giving him
anything in the hereditary property but without expressly disinheriting him, even if he is mentioned in the will in the latter case. But
there is no preterition where the testator allotted to a descendant a share less than the legitime, since there was no total omission of
a forced heir. (Reyes-Barreto v. Barreto-Datu, 125 Phil. 501 (1967)).

In the case at bar, Don Julian did not execute a will since what he resorted to was a partition inter vivos of his properties, as
evidence by the court approved Compromise Agreement. Thus, it is premature if not irrelevant to speak of preterition prior to the
death of Don Julian in the absence of a will depriving a legal heir of his legitime. Besides, there are other properties which the heirs
from the second marriage could inherit from Don Julian upon his death.

What is reserva troncal?

Reserva troncal The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous
title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law
for the benefit of relatives who are within the third degree and who belong to the line from which said property came. (Art. 891)
Purpose:
To prevent persons who are outsiders to the family from acquiring, by chance or accident, property which otherwise would have
remained with the said family. In short, to put back the property to the line from which it originally came.

Note: Other terms used to refer to reserva troncal:

1. Lineal
2. Familiar
3. Extraordinaria
4. Semi-troncal
5. Pseudo-troncal

What are the requisites that must exist in order that a

property may be impressed with a reservable
character?
1. That the property was acquired by a descendant (called praepositus or propositus) from an ascendant or from a brother or sister
by gratuitous title when the recipient does not give anything in return;
2. That said descendant (praepositus) died without an issue;
3. That the same property (called reserva) is inherited by another ascendant (called reservista) by operation of law (either
through intestate or compulsory succession) from the praepositus; and
4. That there are living relatives within the third degree counted from the praepositus and belonging to the same line from where the
property originally came (called reservatarios). (Art. 891; Chua v. CFI of Negros Occidental, Branch V, 78 SCRA 412; Rabuya, Civil
Law Reviewer, pp. 634-635)

Does the reservista own the reservable property?

The reservista is an absolute or full owner, subject to a resolutory condition. If the resolutory condition is fulfilled, the reservistas
ownership of the property is terminated.
Resolutory condition: If at the time of the reservistas death, there should still exist relatives within the third degree (reservatarios) of
the propositus and belonging to the line from which the property came.
Note: The reservable property is not part of the estate of the reservista.

When does the reservatario acquire the right over

the reservable property?
Upon the death of the reservista, the reservatario nearest the decedent propositus becomes, automatically and by operation of law,
the absolute owner of the reservable property. (Cano v. Director of Lands)

Is there right of representation in reserva troncal?

Yes. There is representation in reserva troncal, but the representative must also be within the third degree from the propositus.
(Florentino v. Florentino)

What is fideicommissary substitution?

Also known as indirect substitution, it is a substitution by virtue of which the fiduciary or first heir instituted is entrusted with the
obligation to preserve and transmit to a second heir the whole or part of the inheritance.
Note: For its validity and effectivity, such substitution does not go beyond one degree from the heir originally substituted and
provided further, that the fiduciary or first heir and the second heir are living at the time of death of the testator.

What are the conditions for a valid fideicommissary

substitution?
1. That the institution does not go beyond one degree from the heir originally instituted;
2. That the substitution be expressly made;
3. That both the fiduciary and beneficiary be living at the time of the testators death;
4. That it should be imposed on the free portion and not on the legitime.

What are the elements/requisites of fideicommissary

substitution?
1. There must be a first heir or fiduciary;
2. An absolute obligation is imposed upon the fiduciary to preserve and to transmit to a second heir the property at a given time;
3. There is a second heir who must be one degree from the first heir;
4. The first and second heir must both be living and qualified at the time of the death of the testator.

What is the effect if the fideicommissary

predeceases the fiduciary?
If the fideicommissary predeceases the fiduciary, but survives the testator, his rights pass to his own heirs.

What is the effect of the nullity of the

fideicommissary substitution?
The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first designated; the
fideicommissary clause shall simply be considered as not written.

When the disposition is subject to

a term, what should be done by

the instituted heirs or legal heirs

so that they can enjoy
possession of the property?
If the disposition is subject to a:
1. Suspensive term The legal heirs can enjoy possession of the property until the expiration of the
period but they must put up a bond (caucion muciana) in order to protect the right of the instituted
heir.
2. Resolutory term The legal heirs can enjoy possession of the property but when the term arrives,
he must give it to the legal heirs. The instituted heir does not have to file a bond.

What is probate?
It is a special proceeding mandatorily required for the purpose of establishing the validity of a will.
No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. (Art. 838)
Note: Probate does not deal with the intrinsic validity of the testamentary provisions. Even if only one heir has been instituted, there
must still be a judicial order of adjudication. Even if a will has already been probated, if later on a subsequent will is discovered, the
latter may still be presented for probate, as long as two wills can be reconciled.

Does prescription apply to probate of wills?

The statute of limitations is not applicable to probate of wills (Imprescriptibility of Probate)
Rationale: Probate proceedings are not established in the interest of the surviving heirs, but primarily for the protection of
the expressed wishes of the testator.

What are the characteristics of a probate

proceeding?
1. Special proceeding;
2. Proceeding in rem;
3. Not contentious litigation;
4. Mandatory;
5. Imprescriptible;