I.

PRELIMINARIES
1. SUCCESSION DEFINED (ARTICLE 774)
 Art. 774. Succession is 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.
 Succession is the placing of one person in the place of another and defined as the transmission
of rights and properties from one person to another. In this sense, succession may be inter
vivos or mortis causa, depending upon whether the transfer is effective during the lifetime or
inter vivos of the giver, or after his death or mortiscausa.
 Succession is a derivative mode of acquisition
 Bases of Succession
1. Natural Law
2. Socio-economic postulate – prevents wealth from being stagnant
3. Attribute of ownership
• Foreigners can acquire lands in the Philippines only in case of hereditary succession, which is
succession by operation of law and not by a will
Kinds of Succession
I. As to effectivity:
a. Inter vivos (donation) – effective during the lifetime of the person
b. Mortis causa (succession) – effective upon the death of the person
• If a deed is a donation, there are certain formalities that must be observed
• If a deed is succession, the formalities will be different. If it is a will, the person intended it to be a
succession and the formalities shall comply with the formalities of a will
What are the elements of succession?
1. Decedent who is the person who died and whose property is transmitted through succession. It is the
general term applied to the person whose property is transmitted through succession, whether or not
he left a will. The testator is the decedent whose properties are to be transferred to his successor
through a written will. A transfer of property from a decedent without a will is called intestate. The law
defined it as:
Art. 775. In this Title, “decedent” is the general term applied to the person whose property is
transmitted through succession, whether or not he left a will. If he left a will, he is also called the
testator. (n)
2. Successor or the heir or person to whom the property or property rights is to be transferred. They
may also be called as heirs, devisees or legatees which is defined by law as:
Art. 782. An heir is a person called to the succession either by the provision of a will or by operation of
law.
Devisees and legatees are persons to whom gifts of real and personal property are respectively given by
virtue of a will.

1
3. Death of the decedent which causes the rights to the succession are transmitted from the moment of
the death of the decedent.
4. Inheritance refers to the properties or property rights of a decedent, which is the subject matter of
succession. Also known as Inheritance.
What are the kinds of successors?
1. Compulsory heirs are 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.
They may be primary or those who have precedence over and exclude other Compulsory Heirs as in the
case of Legitimate Children and Descendants (LCD); They may also be secondary or those who succeed
only in the absence of the Primary Compulsory Heirs as in the cases of Legitimate Parents and
Ascendants (LPA); Lastly, they may also be concurring o those who succeed together with the Primary or
Secondary Heirs as in the cases of Illegitimate Children and Descendants (ICD)Surviving Spouse (SS)

2. Voluntary heirs are those other than the compulsory heirs. The devisee is the person to whom a gift
of real property is given by virtue of a will while a legatee is the person to whom a gift of personal
property (bequest) is given by virtue of a will.
2. KINDS OF SUCCESSION
A. TESTAMENTARY (ART. 779)
Art. 779. Testamentary succession is that which results from the designation of an heir, made in a will
executed in the form prescribed by law.
Conditions for Testamentary succession:
1. There must be a will
2. There should be a designation of heir
3. There must be observance of the formalities required by law
Principles in Testamentary succession:
1. TESTAMENTARY SUCCESSION IS PREFERRED OVER INTESTATE SUCCESSION
When there is a will, the will has to undergo probate. Probate is a proceeding wherein you determine
whether or not the will was validly executed and whether or not the will was executed by person who
has testamentary capacity. There is no prescriptive period in the probate of will as long as there is a will.
2. DOUBTS MUST BE RESOLVED IN FAVOR OF TESTACY
If there is doubt as to the validity of a will, the interpretation wherein the will is given effect should be
preferred.
“Testate or testamentary succession” refers to situations where the person dies leaving a last will. The
person who executes a last will is called the “testator.”
The share in the inheritance is called “legitime.” The NCC provides for compulsory heirs” or certain
people to whom the testator is obligated to give their legitimes.

2
In computing the legitimes, the remaining portion of the estate is called the “free” portion. The testator
can give this portion to anyone.
The legitime is the portion of the estate to be given to the compulsory (automatic) heirs. 1/2 of the net
estate goes to the compulsory heirs. The other half is called the Free Portion. The surviving spouse
inherits from the free portion. What is left after all heirs, including the surviving spouse, get all their
shares is called the disposable free portion. This disposable portion can be given by the testator to
anybody. These are the shares:
If the survivor is:
1.) Legitimate children: 1/2 of the estate, divided among themselves in equal portions
2.) Legitimate parents: same
3.) Illegitimate parents: same
4.) Surviving spouse: same, but if the marriage was in articulo mortis 1/3 and 1/2 if living together with
the deceased but celebrated the marriage in articulo mortis
5.) 1 legitimate child and the surviving spouse: 1/2 for the child and 1/4 for the spouse
6.) 2 or more legitimate children and surviving spouse: 1/2 to the children, to be divided equally and the
spouse's share is equal to the share of 1 child
7.) 2 or more legitimate children, the surviving spouse and illegitimate children: 1/2 for the legitimate
children (divided equally among them,) spouse gets a share equal to 1 legitimate child's and each
illegitimate child gets a share of 1/2 of a legitimate child
8.) Legitimate parents and surviving spouse: parents get 1/2, spouse gets 1/4
9.) Illegitimate parents and surviving spouse: both get 1/4 each, illegitimate parents divide the 1/4
among themselves
10.) Surviving spouse and illegitimate children: both get 1/3 each, but illegitimate children divide the 1/3
among themselves
11.) Legitimate parents, illegitimate children and surviving spouse: parents get 1/2 (to be divided among
themselves) spouse gets 1/8 and illegitimate children get 1/4 (also to be divided among themselves)
The remaining free portion after the division can be given by the testator to anybody. Collateral relatives
(brothers, sisters, uncles, aunts, nephews and nieces) inherit only if there are no direct relatives. There is
an entirely different rule for grandparents and grandchildren.
B. INTESTATE/LEGAL
What is Intestate?
 “Legal or intestate succession” refers to situations where the person died without a last will; the
share in the inheritance is called “intestate share.”
Conditions for INTESTATE/LEGAL succession:
1. There is no will
2. The will is not valid at all

3
“Extrajudicial settlement of estate” is a voluntary agreement among the heirs partitioning the estate
(free of debts), executed before a notary public, and published once a week for three weeks in a
newspaper of general circulation.
A sole heir claiming the whole estate can file an“Affidavit of adjudication by sole heir” with the Register
of Deeds (if real property is involved) or with the BIR.

 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.
The rules are different. The whole net estate is to be divided among the heirs.
If the survivor is:
1.) Legitimate children, illegitimate children, legitimate parents or surviving spouse only: the whole
estate
2.) 1 legitimate child and surviving spouse: 1/2 each

4
3.) Surviving spouse and 2 or more legitimate children: divide the whole estate between them all in
equal portions
4.) 2 or more legitimate children, surviving spouse and illegitimate children: satisfy legitime first, then
divide the rest pro rata
5.) Legitimate parents and surviving spouse: 1/2 each
6.) Illegitimate parents and surviving spouse: 1/2 each
7.) Illegitimate children and surviving spouse: 1/2 each, but illegitimate children must divide their share
equally among themselves
8.) Legitimate parents, illegitimate children and surviving spouse: parents get 1/2, illegitimate children
get 1/4 and surviving spouse gets 1/4
9.) Surviving spouse and collateral relatives: 1/2 for the surviving spouse, 1/2 for the collateral relatives
(to be divided equally among each other)
As you can see, it's actually less problematic if there's a will.
C. MIXED (ART. 780)
Art. 780. Mixed succession is that effected partly by will and partly by operation of law.
A testator made a will but omitted some properties, rights or has acquired some properties after the
execution of his last will and testament
When mixed succession occurs:
1. When the testator fails to dispose all of his properties in a will
2. When the will does not validly dispose of all the property of the testator
3. KINDS OF HEIRS
ARTICLE 782. An heir is a person called to the succession either by the provision of a will or by operation
of law. Devisees and legatees are persons to whom gifts of real and personal property are respectively
given by virtue of a will.
Heirs
• Those who succeed to the universality of the rights, properties and obligations of the decedent
• They are not given specific portions of the property but aliquot shares
Kinds of Heirs:
1. Testamentary Heirs, Devisee, Legatee
• Legatee succeeds to personal properties
• Devisee succeeds to real properties or immovable properties of the decedent
Distinctions between Heirs & Legatees and Devisees:

5
Importance of distinguishing heirs from legatees and devisees:

1. When there is preterition, the instituted voluntary heirs do not get anything. The legatees/devisees
retain the properties given to them as long as the legitime is not impaired.

2. When there is invalid disinheritance, the instituted voluntary heir gets nothing while the one who
received properties by way of legacy or devise retains the property given to them as long as the
legitimes of the compulsory heirs are not impaired.

2. Compulsory heirs

• Compulsory or forced heirs are persons who are not deprived of their inheritance unless there are
causes to disinherit them and the causes are provided by law. LEGITIME is that portion of the property,
rights and obligations of the decedent which you cannot just dispose of because the law reserved it for
the compulsory heirs.

i. The primary compulsory heirs are the legitimate children and descendants who have
precedence over and exclude the secondary heirs.
ii. The secondary heirs are the legitimate parents and ascendants who succeed only in the
absence of the primary heirs.
iii. The concurring compulsory heirs are the illegitimate children and the surviving spouse who
succeed together with the primary or secondary compulsory heirs.

Barring any impediments, legal or otherwise, the Civil Code of the Philippines implements the division
of the estate in the following manner:

6
 For computation purposes only, find out the value of half of the deceased person's estate. Think of
1/2 as the "free portion" mandated by law. The other 1/2 (referred to as "hereditary estate") is what
is, in theory, immediately ready for division.

 One legitimate child is entitled to 1/2 of the hereditary estate. Two or more legitimate children
are entitled to divide the 1/2 of the hereditary estate equally among themselves.
 The surviving spouse is entitled to 1/4 of the hereditary estate if there is only one legitimate
child. With two or more legitimate children, he or she is entitled to a portion equal to the
legitime of a legitimate child. The legitime of the surviving spouse is taken from the free portion
of the estate.
 The legitime of illegitimate children is taken from the free portion of the hereditary estate,
provided that this does not exceed the free portion. The Family Code of the Philippines provides
that the legitime of each illegitimate child is 1/2 that of a legitimate child.

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.

Can Illegitimate Children Inherit Property?

If the person has no legitimate children or descendants, the legitime of legitimate parents or ascendants
consists of 1/2 of the hereditary estate of their children and descendants.

What remains of the "free portion" may be freely disposed of, subject to the rights of the illegitimate
children and surviving spouse. This part of the estate can go to any person or class of persons with the
capacity to succeed under the Civil Code, even if that person is already a compulsory heir with a
prescribed legitime.

3. Intestate Heir

 Legal or intestate heirs are heirs who inherit by operation of law. The person dies without a
will. Voluntary, testamentary or testate heirs are heirs who will inherit because of the will of the
decedent.

Who are intestate heirs?

7
 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.

 All compulsory heirs are legal heirs. But not all legal heirs are compulsory heirs. When a person
dies without a will, then, the compulsory heirs succeed by operation of law. If there is a will but
the will is not valid, then, the compulsory heirs succeed by operation of law since the will is
disregarded.
 The free portion may be given to anybody except those who are prohibited by law to inherit
from the decedent. If there is a will, the free portion is given to the voluntary heirs
 PRETERITION happens when a direct line or a compulsory heir is omitted form the will. The
effect is the will cannot be given effect. So, there shall be intestacy wherein the will is
disregarded and as if the person died without a will.

4. Adopted Child as Heir

A. Status of an Adopted Child

An adopted child, for civil purposes, is deemed the legitimate child of the adopting parents. Thus, if the
adopter died and is survived by the adopted child, legitimate parents and ascendants, the adopted
would now exclude the latter from the estate of the adopter, in the same way that they would be
excluded by the presence of legitimate issue of the adopter. The right to exclude is implied in Article 189
(1) of the Family code.

By the enactment of RA 8552, it is not only in his new family that the legitimate status of the adopted
child is affirmed but also in society as well. The new law withdraws the right of an adoption to rescind
the adoption decree and gives to the adopted child the sole right to severe the legal ties created by
adoption.

B. Rights to Inherit of an Adopted Child

The adopted child succeeds to the property of the adopting parents in the same manner as would a
legitimate child. Adopted children are indisputably declared as entitled to all the rights and obligations
provided by law to legitimate sons or daughters without restrictions.

The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and
purposes and as such is entitled to all the rights and obligations provided by law to legitimate
sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to
love, guidance, and support in keeping with the means of the family.

8
 II. Testamentary Succession
1. Will in General

ARTICLE 783. A will is 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. (667a)

• The making of a will is an act by which a person is permitted by law to repose his property effective
upon his death. It is not a mode of transferring property because that is succession. It does not also
consist of property, rights and obligations because that is inheritance.

• A will is an instrument wherein certain dispositions are made by persons to effect mortis causa

• Thus, it may be an or an instrument

Elements of a Will:

1. It is strictly a personal act It cannot be delegated to a third person. The disposition of the will should
be the disposition of the person. Since it is personal, will-making shall not be made in public. Even if a
will is acknowledged before a notary public, a will is not a public document. Even a notary public is not
required to keep a copy of the will.

2. There must be animus testandi (intent to make a will) One should know that the effect of such
document is to transfer one’s properties to a particular person mentioned in the document.

3.The making of a will is a statutory right, not a natural right

4.It is a solemn or formal act for the will to be valid, each form shall comply with the rules prescribed by
the New Civil Code.

5.It is a unilateral act The testator cannot condition the validity of his will upon the consent of another.

6.The testator must be capacitated to make a will

7.It is free from vitiated consent

8.It is essentially revocable and ambulatory

9.It is an individual act, as distinguished from a joint act The will must contain the act of only one person.
Joint will are prohibited.

10. It disposes of the testator’s estate in accordance to his wishes

11. It is effective mortis causa

a. Notarial Will

“A notarial will includes the legal cost, for the notary public, for the lawyer who will assist the testator,
and in filing for the probate of a will, the rules of court provide for the estates where the property is not
more than P100,000 then the filing fees would be P3,500. For P400,000 of total properties, it’s about
P6,500,”

Under the New Civil Code of the Philippines, there are two kinds of wills: (1) notarial will, and (2)
holographic will. As the name denotes, a “notarial will” is prepared and notarized by a notary-public.

9
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 testator’s 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.)

10
b. Holographic Will

A holographic will is a will written, dated and signed entirely in the testator's own hand. That means, it's
completely handwritten by the testator himself (not typewritten or printed!) It's also valid as far as
Philippine law is concerned and the formalities are not as stringent. It is also called a "secret will"
because it doesn't need to be signed by witnesses and notarized by a lawyer.

For the holographic will, the law requires that:

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

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 by the testator himself

4. Dated by the testator himself

5.) There must be animus testandi/intent to make a will

6.) It must be executed at the time holographic wills are allowed

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.

11
Probate of Holographic Wills

Like ordinary/notarial wills, holographic wills have to be brought into probate. In the probate of a
holographic will, it is important to prove that the signature and handwriting are the testator's; if not, the
will is invalid. Regarding witnesses, their job is to prove that the handwriting in the holographic will
belongs to the testator. Remember the following:

1.) If the will is not contested/questioned, at least 1 witness is required to prove that there was no fraud
present.

2.) If the will is questioned/contested, at least 3 witnesses are needed.

In both cases, if there are no witnesses available, experts may be called on.

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 testator’s handwriting.

c. Joint Wills (Art. 818-819) vs. Disposition Captioria/Mutual Wills

Article 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their
reciprocal benefit or for the benefit of a third person. (669)

 JOINT WILL is one wherein the same testamentary instrument is made as the will of 2 or more
persons and it is jointly executed and signed by them.
 MUTUAL WILLS or RECIPROCAL WILLS are wills of 2 persons wherein the disposition of one is
made in favor of the other and the other also makes dispositions in favor of the other. This is
also called TWIN WILLS. The Mutual or reciprocal wills are embodied in separate instruments.
 When the 2 dispositions are made in the same will, it becomes a joint will. Now, we have a Joint
and Mutual will. When you have a Joint and Mutual will, it is prohibited under Article 818.
 Article 818 may cover a joint and mutual will or joint will wherein the benefit is not for the 2
parties who execute the will but for a third person.
 Not all mutual and reciprocal wills are joint wills.

Why are joint wills not allowed?

1. It tends to convert a will into a contract

2. It destroys the character of wills as a strictly personal act

3. It runs counter to the idea that wills are essentially revocable or ambulatory;

4. It may subject one to undue influence. It induces Parricide.

5. It makes probate more difficult especially if the testators die at different times.

Article 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not
be valid in the Philippines, even though authorized by the laws of the country where they may have
been executed. (733a)

12
  Joint wills executed by a Filipino in a foreign country are not valid in the Philippines, even
though allowed in the place of execution
 Article 819 is not applicable to foreigners executing their will. If a joint will is executed by a
foreigner abroad and it is valid in the place of execution, it shall be recognized by our courts,
because of lex loci celebrationes (law of the place of execution). If it is valid in the place of
execution it is valid here in the Philippines.
 If a joint will is executed by a Filipino and a foreigner, the will is void as to the Filipino and valid
with respect to the foreigner.
 If a foreigner executes a joint will in the Philippines:
1st view: It is valid because if it is allowed under his national law, it should be allowed here in
the Philippines under Art 817.
2nd view: By reason of public policy, it is void because under Article 17, our laws cannot be
subrogated by the laws promulgated in other countries.

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)

13
 III. Legitime (Art. 886)

Art. 886. Legitime is that part of the testator's property which he cannot dispose of because the law
has reserved it for certain heirs who are, therefore, called compulsory heirs. (806)

• When it comes to foreigners, the intrinsic validity of the will shall be governed by the national law
of the decedent. So, if in their country there is no system of legitime, the will is still valid.

• Philippines follows a system of legitime

• The purpose of providing for legitimes is to protect the compulsory heirs of the testator because
the testator by his passion, prejudice might just omit his compulsory heirs.

Art. 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;

(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate
children and descendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in article 287.

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither
do they exclude one another.

In all cases of illegitimate children, their filiation must be duly proved.

The father or mother of illegitimate children of the three classes mentioned, shall inherit from them
in the manner and to the extent established by this Code. (807a)

It does not matter whether you are a legitimate or illegitimate child of the deceased. You are all
compulsory heirs. However, an illegitimate child will only get half of what a legitimate child receives.

What is the legitime of a child?

It is one half of the estate of the deceased parent. By way of a rough illustration, if a person has P10
million, without parent or spouse but with one child, he can make a will giving P5 million to his child and
the other P5 million to charity or he can give all of it to his child. If he does not make a will, all the P10
million will go to his child upon his death. If he had no spouse nor child, legitimate or illegitimate, but his
parents survive him, the parents are entitled to the whole estate and each parent gets half. He can make
a will, however, limiting his parents to their legitime of one-fourth each while giving the other half to
anyone.

EXAMPLE:

14
Supposing a widower with P10 million is survived by 10 children, and he left no will, each child gets an
equal share of P1 million. Otherwise, if he had wanted, he could have made a will giving only P5 million
to his 10 children who will then get P500,000 each and giving the other P5 million to anyone.

If a man is survived by a wife and one legitimate child, the wife’s legitime is one-fourth of the estate
while that of the child is one-half. Just to illustrate, supposing he and his wife accumulated, during their
marriage, properties worth P10 million at the time of his death, said P10 million is conjugal or
community property, in which case, P5 million is the wife’s share while the other P5 million will
comprise his estate. Out of P5 million estate, his child’s legitime will be P2.5 million while his wife’s will
be P1.25 million. The remainder or P1.25 million is the free portion which he could give to charity by
making a will. However, if he does not make a will then the sharing of the wife and child to the entire
P5-million estate will be P3.5 million to the child and P1.5 million to the wife.

If the heirs are 10 children and a spouse, and assuming the estate is worth P10 million, and there is no
will, the P10 million will be divided among the children and spouse in equal shares or P10 million divided
by 11 resulting in each getting P909,090.90. However, if the person with P10 million wants to dispose of
his free portion, he should make a will limiting his children and wife to their legitime. The result is that
one-half of the 10 million will be divided among the 10 children equally or P500,000 each while the wife
will get P500,000 from the other half. The balance of P4.5 million is the free portion which the testator
can give to any of the children, to his wife, and/or to charity. If he gives all of the free portion to just one
child, then the result may be that one child gets P5 million composed of the entire free portion of P4.5
million plus his legitime of P500,000 while the rest of the children, including the wife gets only P500,000
each. This is the kind of situation that may lead to protracted litigation. Surely, the children getting only
P500,000 each and/or the wife will contest the will. Their lawyers can use every reason to have the will
invalidated or have the deceased declared insane. In the end, everybody may not be able to get
anything since the P10 million may have to answer for legal fees or by the time the case is resolved the
money has depreciated considerably.

If a man has a wife and no child with her, but has illegitimate children the wife shall be entitled to one
third, the illegitimate children to another third, while the remaining third of the estate is the free
portion which he may dispose of as he wishes by making a will.

An important provision of the law on succession is that an illegitimate child surviving with a legitimate
child is entitled, by way of legitime, to only one/half of the legitime of the legitimate child. Supposing
there is no surviving wife but there are five legitimate children and five illegitimate children, and the
estate is valued at P10 million, how will the sharing be? Where there is no will, out of the P10 million,
the five legitimate children will get P1.2 million each or a total of P6 million while the five illegitimate
children will get P600,000 each or a total of P3 million. By way of a will, the five legitimate children may
be given just their legitime of P1 million each or P5 million all in all, and the illegitimate children
P500,000 each or P2.5 million all in all to be taken from the other half of the P10-million estate. The
remainder of the free portion or P2.5 million may be given by the testator to anyone. In fact, he could
give all of the free portion to the illegitimate children such that each will get an additional P500,000,
thereby increasing an illegitimate child’s share to equal that of a legitimate child.

15
Where there are more illegitimate children than legitimate children, the legitime of the illegitimate
children cannot exceed the free portion which in the above illustration is P5 million. For example, where
there is only one legitimate child, he gets P5 million. If there are seven illegitimate children, theoretically
each one should get one-half of the legitimate child’s P5 million which is P2.5 million each. But since the
total legitime of the illegitimate children should not exceed the free portion of P5 million, each
illegitimate child will get only P714,285. The testator cannot diminish the legitime of P5 million of the
legitimate child.

Supposing the survivors are: the spouse, five legitimate children, and seven illegitimate children and
assume that the estate is worth P10 million. One half or P5 million will be the legitime of the five
legitimate children. The wife will get a share equal to one legitimate child, meaning she gets P1 million
from the other half of P5 million. The free portion is now only P4 million. Since each illegitimate child is
entitled to a legitime of only one-half of that of a legitimate child or P500,000 the total legitime of the
seven illegitimate child will be P3.5 million. The balance of P500,000 is the net free portion that the
testator can give to anyone by making a will. However, if there is no will, the P500,000 will also be
divided among the said heirs with each of the five legitimate children and the spouse getting an amount
double that of one illegitimate child.

There are other provisions of law on legitime and numerous variations of the above rough illustrations.
As it is, the foregoing is already very confusing to an ordinary person. But if it is any consolation,
sometimes even lawyers have a hard time figuring out who gets what, particularly where the estate is
composed not only of cash but real and personal properties whose values cannot easily be determined.
In fact, most lawyers themselves concede that they are poor in math.

16
 IV. Disinheritance (Art. 915)

Art. 915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for
causes expressly stated by law. (848a)

• Article 915 talks about the consequence of being disinherited

• DISINHERITANCE is the process or act, thru a testamentary disposition of depriving in a will any
compulsory heir of his legitime for true and lawful causes.

• Disinheritance refers only to a compulsory heir

• Disinheritance is made through a testamentary disposition. There must be a will.

• There is no disinheritance in legal or intestate succession, only in testate succession

• Disinheritance can be made only for causes expressly stated by law

Ways of depriving the compulsory heir of his legitime

1. Disinheritance (Article 915)

2. Repudiation of the inheritance - the act of the heir himself

3. Incapacity by reason of unworthiness

4. Predecease - the actual or presumptive death of the heir

5. Loss of the estate 6. When the death or charges are equal to or more than the value of the estate

1. Requirements

Under Article 918 of the New Civil Code of the Philippines, The following requirements DISINHERITANCE
must be complied with:

[1] It must be done in a valid will;

[2] It must be express;

[3] There must be a true cause;

[4] The cause must be existing;

[5] It must be total and complete;

[6] The cause must be stated in the will;

[7] The heir disinherited must be identified;

[8] The will must not have been revoked

2. Grounds for Disinheritance

The grounds for disinheriting a spouse under Art. 921 of the New Civil Code are:

17
[1] When the spouse has been convicted of an attempt against the life of the testator, his or her
descendants or ascendants;

[2] When the spouse has accused the testator of a crime punishable by imprisonment of six years or
more, and the accusation is false;

[3] When the spouse, by fraud, violence, intimidation or undue influence causes the testator to make a
will or to change it;

[4] When the spouse has given cause for legal separation;

[5] When the spouse has given grounds for loss of parental authority;

[6] Unjustifiable refusal to support the children or the other spouse.

GROUNDS FOR DISINHERITANCE

Children 919 Parents 920 Spouse 921
Common to all
1. When the heir has been found guilty of an attempt against the lift of the testator, his/her
descendants or ascendants, and spouse, in case of children or parents
2. When the heir by fraud, violence, intimidation, or undue influence cases the testator to make
a will or to change one already made
3. When the heir has accused the testator of a crime for which the law prescribes imprisonment
of 6 years or more, of the accusation has been found groundless
4. Refusal without justifiable cause to support the testator who disinherits such heir
Peculiar causes
1. Conviction of a crime 1. When the parent or 1. When the spouse has
which carries with it a ascendant has been given cause for legal
penalty of civil convicted of adultery or separation
interdiction concubinage with the 2. When the spouse has
2. Maltreatment of the spouse of the testator given grounds for the
testator by word or 2. When the parents have loss of parental
deed by the children or abandoned their authority
descendant children or induced
3. When the children or their daughters to live a
descendant has been corrupt or immoral life,
convicted of adultery or or attempt against their
concubinage with the virtue
spouse of the testator 3. Loss of parental
4. When the children or authority for causes
descendant leads a specified in the Code
dishonorable or 4. Attempt by one of the
disgraceful life parents against the life
of the other, unless
there has been
reconciliation between
them

18